Judgement JUDGEMENT :- In both the Civil Appeals being No. 6 of 1979 and No. 2 of 1980, a common question has been raised relating to the amount of Court-fees payable for these appeals and the said question has been, as it should be, heard as a preliminary point. It has been urged by the learned counsel for both the appellant and the respondent in both the appeals that there is no provision in the Sikkim Court-fees Law providing for Court-fees payable for applications under the provisions of the Arbitration Act, 1940, or for any appeal from any order passed on any such application. As the question raised relates to revenue of the State, notice was issued to the Advocate General to represent the State and the learned Advocate-General has appeared in pursuance thereof and has made his submissions. This judgment shall govern both the appeals. 2. Arbitration Act, 1940, provides for various types of applications, its anxiety being, as demonstrated in Section 32 and Section 33 thereof, to shut out all suits and to permit an arbitration agreement or award to be enforced, set aside, amended, modified or in any way affected only by applications. The Act has not yet been extended to Sikkim by any notification under cl.(n) of Article 371F or otherwise. But the provisions of the Act have been consistently applied by the Courts in Sikkim from long before Sikkim was incorporated in the Union of India as a component State by and under the Constitution (Thirty-sixth Amendment) Act, 1975, and are continued to be so applied by the Courts in Sikkim to all cases relating to arbitration. The Courts have applied the provisions of the Act not only to arbitration proceedings between the parties, but have also applied the provisions of the said Act in entertaining all applications, appeals and other proceedings as provided in the said Act. Law has been defined by Salmond as "the body of principles recognised and applied by the State in the administration of justice" and to consist "of the rules recognised and acted on by the Courts of justice". If there is a set of principles and the Courts have systematically "recognised", "applied" and "acted on" such principles in matters relating to administration of justice, the principles then acquire the status and force of law. If there is a set of principles and the Courts have systematically "recognised", "applied" and "acted on" such principles in matters relating to administration of justice, the principles then acquire the status and force of law. The provisions of the Arbitration Act, 1940, having so long been "recognised", "applied" and"acted on" by the Courts of justice in Sikkim in the administration of justice in all matters relating to arbitration, have accordingly become the laws of Sikkim. To put it in other words, the provisions of the statutory laws relating to arbitration as contained in the Arbitration Act, 1940, have, as a result of their continuous and systematic recognition and application by the Courts in Sikkim, become the laws in force in Sikkim, though not as a piece of legislation. This is also what has been held by this Court in Asharam Agarwala v. Union of India (1978) 4 Sikkim LJ 18), Dealing with the similar question of making of laws by Courts or their Judges, it has been held by this Court in Jas Bahadur Rai v. Putradhan Rai (1978) 3 Sikkim LJ 6) that "if this is characterised as making of laws by Courts, it may be pointed out that the very same thing was done by the Courts in India during the early British period when legislative laws in India were scanty and the Courts in India freely followed and adopted the principles of the English Law in deciding points not covered by the provisions of the Indian Laws in force" and that India being "then a country almost empty of legislative laws", "the void was to a great extent filled up by Courts through their decisions by importing principles of English Law, both Common and Statutory". What was then done by the Indian Courts was obviously clear law making and this Court held further in Jas Bahadur Rai (supra) that the Courts in Sikkim would have to continue to do that amount of law-making until such time when direct legislative laws would begin to hold and occupy the field. 3. What was then done by the Indian Courts was obviously clear law making and this Court held further in Jas Bahadur Rai (supra) that the Courts in Sikkim would have to continue to do that amount of law-making until such time when direct legislative laws would begin to hold and occupy the field. 3. A learned Jurist (Baxi in his Introduction to Justice Mathew's "Democracy, Equality and Freedom") has very recently said that "in this last quarter of the twentieth century very few people would venture to contest or deny the elementary proposition that appellate Judges not merely declare the law or apply it, but that they also make or create law." I wish the learned Jurist (Baxi, however, does not like the term "Jurist", and prefers the expression "legal scholar") was right and I would have wholly agreed with him if he used the word "should" instead of the word "would" (emphasised above). For I know that not only jurists and legal scholars dispute, but that even Judges disown their power to make and the fact that they do make law. But even the learned Jurist himself is probably not quite sure that "very few people would venture to contest or deny" that Judges "also make or create law", for he has himself said elsewhere (in the Introduction to his "Indian Supreme Court and Politics") that "for much too long the law-persons - Judges, Lawyers and Jurists - everywhere in the world have successfully managed to convince the people of the truth of their lies concerning the nature of the judicial process". I have my doubts as to whether the spell of those "lies" is over, "Lies" is, however, a very strong expression, but such an "illusion", if I may use that expression which the learned Jurist has also used elsewhere, is very much there and as a result of the hypnotic spell of that illusion, many law-persons, rather a majority of them, honestly, though erroneously, believe that Judges do not make or create laws. The sooner we explode the myth, so affectionately nourished by the Britishers and so faithfully cherished by many of us, that ? Judges do not and cannot make law and honestly declare or confess that they do and can, the better. The sooner we explode the myth, so affectionately nourished by the Britishers and so faithfully cherished by many of us, that ? Judges do not and cannot make law and honestly declare or confess that they do and can, the better. The Law of Arbitration in Sikkim, like many of its other important branches of laws, e.g. the law relating to Civil Procedure, Contract, Transfer of Property and a host of them, is "essentially a judge-made law, as the Judges in the Courts in Sikkim, by regularly and systematically applying and acting upon the provisions contained in the Indian Arbitration Act, 1940 in their Courts, have made these provisions the laws of Sikkim, though the said Act of 1940 was never and is still now not extended to Sikkim as a formal piece of legislation. 4. Though the question before me in these two appeals is what amount of Court-fees is payable on the various types of applications filed under the provisions of the Arbitration Act, 1940, and also for the appeals preferred against the orders passed on such applications, I have still discussed the question as to whether and, if so how, the provisions contained in the Arbitration Act, 1940 have become the laws in Sikkim by being regularly recognised, applied and acted upon by the Courts in Sikkim, because it has been pointed out by the learned counsel appearing for the parties that a fee of Rs. 100/- was and is being paid by the parties on applications under the provisions of action 14 read with Section 17 of the Arbitration Act, 1940 for getting the awards filed and made rules of Court in accordance with some direction of the former High Court and the learned counsel have raised the further question as to whether such imposition, in accordance with the orders of the Courts, has also become the law in force. It appears that in Civil Misc. Appeals No. 1 and No. 2 of 1971, filed against the orders of the lower Court to pay ad valorem court fees on the value of awards on applications for making the awards rules of Courts, the former High Court of Sikkim, by its judgment dated 9-7-1971, ordered the refund of the Court-fees paid after deducting an amount of Rs. 100/- therefrom. And from then onwards, this amount of Rs. 100/- therefrom. And from then onwards, this amount of Rs. 100/- appears to have been accepted in various other cases as the amount payable for such application. This question came up for consideration before Chief Justice Sachar of this Court in Civil Misc. Appeal No. 3 of 1971 (A.K. Kharel v. Union of India, decided on 30th September, 1975) and the learned Chief Justice pointed out that "the amount was not fixed with reference to any specific law" by the former High Court in the said Appeals No. 1 and No. 2 of 1971. But even then, the learned Chief Justice thought that as the appellant before his Lordship was agreeable to pay Rs. 100/-and was only aggrieved by the order of the lower Court to pay the amount ad valorem on the value of the award, it was not necessary for his Lordship to consider the legality or propriety of such fixation and his Lordship also ordered refund of the Court-fees paid after deducting a sum of Rs. 100, Manu, our ancient and most revered law-giver, directed that when we are in doubts, we should follow the path followed by our predecessors, as by doing so we would achieve good and would commit no wrong (Jenasya Pitaro Jata Jena Jata Pitamahah, Tena Jayat Satang Margam. Tena Gachchhan Na Dusyati - Manu-IV, 178). I would have also tried to do so and would have respectfully followed the learned Chief Justice, if I found that the question arising before me was decided and determined by him. But since his Lordship categorically pointed out that he was not deciding the legality or correctness of this imposition of Rs. 100/- as Court fees and all that his Lordship said was that ad valorem Court-fees on the value of the award were not payable, I am not in a position to derive any help from that judgment in these appeals before me, where the question as to what amount of Court-fees is required to be paid for applications under the Arbitration Act and for appeals from orders thereon has been specifically raised. And in order to decide that question, it has become very much relevant to consider that even though the Courts in Sikkim have, by consistently recognising, applying and acting upon the principles contained in the Arbitration Act, 1940, made the provisions of the said Act the laws in Sikkim regulating all matters relating to Arbitration, whether the Court could impose or levy Court-fees by its judicial law-making? However a great votary of judicial law-making I would like to be, I am afraid that I would not be able to go to that length as to hold that the Courts by its judicial fiats can impose taxes also. 5. The mandate of Article 265 of our Constitution is that "no tax shall be levied or collected except by authority of law", a principle recognised in all democratic countries. In England also, the established principle is that express statutory authority is necessary for the imposition of taxes. In Halsbury (Laws of England - Simonds Edition, Volume No.7. Page 231) it is stated that 'the Crown or its ministers may not impose direct or indirect taxes without Parliamentary sanction" and that "it is enacted that no man shall be compelled to make or yield any gift, loan, benevolence or tax without common consent by Act of Parliament". The expression "law" in Article 265 has been construed to mean statutory laws only, as will appear from the series of decisions of the Supreme Court in Atiabari Tea Co. (AIR 1961 SC 232 at p. 248), Balaji (AIR 1962 SC 123 at p. 128), Chhotabhai Jethabhai (AIR 1962 SC 1006 at p. 1020) and several other cases. 6. As pointed out by the Supreme Court in Commr., Hindu Religious Endowments v. Lakshmindra Thirtha Sywamiar (AIR 1954 SC 282 at p. 295). Ratilal v. State of Bombay (AIR 1954 SC 388 at p. 395), Sri Jagannath v. State of Orissa (AIR 1954 SC 400 at page 403) and later cases, there is no generic difference between "tax" and "fee" and both are different forms in which the taxing power of the State manifests itself, but our Constitution, however, has made a distinction between the two for purposes and as items of legislation. But though there is no generic difference, the two have different characteristics and from that point of view, Court-fees are fees and not taxes, as held by the Supreme Court in Government of Madras v. Zenith Lamps (AIR 1973 SC 724) and as held therein (at p. 703), "there must be a broad cor-relationship with the fees collected and the cost of administration of justice." But otherwise, fees are also taxes and that would also appear from Article 366 (28), where the expression "taxation" has been defined to include "the imposition of any tax or impost, whether general or local or special" and it has been directed therein that the expression "tax shall be construed accordingly". There can, therefore, be no doubt that "fees" are also included within the expression "tax" as used in Article 265 and as pointed out by the Supreme Court in Muhammadbhai v. State of Gujarat (AIR 1962 SC 1517 at p. 1530), "fees are also included within taxing power of the Legislature in the broadest sense" and, therefore, levy and collection of fees also must be by and under the authority of law, which, as already noted, means statutory law. 7. The law relating to Court-fees in Sikkim is to be found in a set of Rules known as "Sikkim State Rules -Re:Court-fees and Stamps on Documents", assented to by the then Ruler of the State on 30th March, 1926, as subsequently amended. There does not appear to be any specific provision imposing Court-fees on any application relating to arbitration matters. Entry No. 1 of the Schedule relates to "Plaints in Civil Suits or Civil Appeal" and provides that "no stamps, but cash Court-fees payable in advance, annas two in a rupee on the value of the claim put". Applications under the provisions of the Arbitration Act, 1940, including applications for filing and enforcement of arbitration agreement and award, can never be regarded to be suits or plaints in Civil Suits, particularly when, as already pointed out, one of the main objects of the Arbitration Act, 1940, is to prohibit and shut out all suits relating to arbitration agreement and award. The decision of the Supreme Court in Usmanali Khan v. Sagar Mal (AIR 1955 SC 1798) may be referred to where it has been held (at p. 1801) that a proceeding under Section 14 read with Section 17 of the Arbitration Act, 1940 for having the award filed in Court and enforced through a decree can never be regarded as a suit. The learned Advocate-General has contended that even if a proceeding initiated by such an application, not having commenced with a plaint, is not to be regarded as suit, any appeal therefrom is nevertheless a Civil Appeal and must, therefore, be charged under Entry No. 1 and Court-fees must be paid at the rate of 'annas two in a rupee on the value of the claim put". In my view, if the expression "Civil Appeal" stood apart or independently, the argument of the learned Advocate-General could have carried force. But as already quoted hereinbefore the expression "Civil Appeal" in Entry No. 1 is used, not separately or independently, but in conjunction with and after the words "plaints in Civil Suits". The expression "Civil Appeal", therefore, in Entry No. 1 would mean civil appeal arising out of a civil suit. Clause (5) of the Rules provides that "in appeals, (Civil Suits) the same Court-fee shall be charged as in the original Court." This also, therefore, clearly goes to show that by the expression "appeals' is meant appeals arising out of the decrees passed in Civil Suits. 8. I have no doubt that applications under the different provisions of the Arbitration Act, 1940, are, and cannot be regarded as anything other than, applications only and are to be charged as such. It must be charged as any other ordinary application, unless the relevant law relating to Court-fees provides for any special imposition for such applications. That is why separate and specific provisions have been made in Schedule II of the Court-fees Act, 1870, for charging applications under the Arbitration Act and different States have also, by amending the aforesaid provisions or by enacting separate enactment's, specifically provided for Court fees payable on such applications. The relevant Sikkim Law not having specifically provided for charging such applications, such applications can only be charged as ordinary and general applications. The relevant Sikkim Law not having specifically provided for charging such applications, such applications can only be charged as ordinary and general applications. The learned counsel for both the parties have submitted that ordinary applications of general nature are charged with Court-fee of Rupee 1/- under Entry No. 8 and Entry No. 9 of the schedule, which provide for Court-fees payable for all applications in judicial cases, the former for Civil and the later for Criminal. Entry No. 8 reads as hereunder :- Miscellaneous Application in a Judicial Case (civil) (a) If the value of the suit is Rs. 50/- or above Re. 1/- -Stamp (b) Ditto below Rs. 50/- Re. /-8/--Stamp 9. The words "in a judicial case" and "if the value of the suit is Rs. 50/- or above" etc. would show that the Entry would apply to interlocutory application in a pending Civil Case and not to applications originating proceedings under the Arbitration Act, 1940. I have, therefore, my doubts as to whether these applications under the Arbitration Act, 1940, can at all be charged with any Court-fee under this Entry. But the learned counsel appearing for both the parties in both these appeals have submitted that if the applications under the provisions of the Arbitration Act, 1940 are to be treated as applications only, they cannot be charged with any amount higher than what is chargeable for any other applications and as under the Sikkim Law none of the applications mentioned therein, which are to be filed in Courts, is charged with Court-fee for more than Re. 1/-, the applications under the Arbitration Act also cannot be charged with any higher amount, and, at any rate, no objection can be taken on the ground of insufficiency of Court fees if they are affixed with Re. 1/- stamp. As at present advised, I am inclined to agree with the learned counsel and I would accordingly hold that if any application filed under the provisions of the Arbitration Act, for which no specific provisions have been made under the relevant Sikkim Law, is affixed with Court-fee of Re. 1/- only, that being the maximum amount chargeable for applications filed in Court under the Sikkim Law, no objection can be taken on the ground that such application has not been properly or sufficiently stamped. 1/- only, that being the maximum amount chargeable for applications filed in Court under the Sikkim Law, no objection can be taken on the ground that such application has not been properly or sufficiently stamped. I would also consequently hold that no objection can also be taken on the ground of insufficiency of Court-fees to any appeal filed against any order passed on any such application, if such appeal is also affixed with Court-fee of Re. 1/-. From the Schedule to the Sikkim Court-fees Law it appears that all the Entries relating to various types of proceedings, including suits and appeals have been clubbed under the heading "Petition". An appeal also is very much a petition, as will appear from Sec. 382 Code of Criminal Procedure, 1973 the marginal note whereto is "petition of appeal" and which provides that "every appeal shall be made in the form of a petition and every such petition shall" be accompanied by a copy of the judgment or order appealed against. The Civil Procedure Code, however, in O.41 has labelled the same as a Memorandum of Appeal. Be that as it may, unless otherwise specifically provided a higher amount of Court-fees is not to be payable for appeal than what is payable for the original proceedings, and clause 5 of the Sikkim Rules, as quoted hereinabove, also shows that the same Court fee shall be charged for appeal as in the original Court. Therefore there can be no objection on the ground of insufficiency of Court-fees if the same amount, which is paid for the applications under the Arbitration Act, is also paid for appeals from orders thereunder. 10. It is true that after the former High Court of Sikkim in Civil Misc. Appeals No. 1 and No. 2 of 1971, allowed refund of the Court-fees paid ad valorem on the value of the award on an application for getting the award filed and enforced, after deducting Rs. 100/- therefrom, such amount of Rs. 100/- began to be levied or paid on such applications. Art.277 of the Constitution provides that "any taxes, duties, cesses or fees, which, immediately before the commencement of this Constitution, were being lawfully levied,...may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied ......until provision to the contrary is made by Parliament by law. Art.277 of the Constitution provides that "any taxes, duties, cesses or fees, which, immediately before the commencement of this Constitution, were being lawfully levied,...may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied ......until provision to the contrary is made by Parliament by law. But the argument that the amount of Rs. 100/- having been continued to be levied as Court-fees for such types of applications, can legality be continued to be levied under Art.277, cannot obviously be accepted for more reasons than me. Firstly, the decision of the former High Court was never a declaration of law, but was and this I say with respect an ad hoc disposal of the relevant appeals without declaring or deciding any law and, at any rate was never a statutory law. Secondly, the levy, in order to be "continued to be levied" under Art.277, must have been levied "immediately before the commencement of this Constitution" and this expression shall mean the 26th day of January, 1950, which day, as declared by Article 394, "is referred to in this Constitution as the commencement of this Constitution". It is true that the Constitution has actually commenced to operate in Sikkim with effect from the 26th April, 1975, when Sikkim has been incorporated in the Union of India as a component State under the Constitution (Thirtysixth Amendment) Act. 1975. But Art.394 has not been adapted or altered in any way in its application to Sikkim and, as a result, the expression "the commencement of this Constitution" used in the various Articles of the Constitution, would mean the 26th January, 1950, even in respect of Sikkim, though the Constitution has actually commenced to operate in Sikkim a quarter of a century thereafter. This blatant incongruity appears to have escaped the notice of all concerned, but could have been very easily resolved by an order under clause (o) of Art.371F, inserted by the aforesaid Constitution (Thritysixth Amendment) Act, whereunder the President, within a period of two years from the date of the commencement of that Amendment Act, could by order "do anything" including any adaptation or modification of any other Article. But the only order passed under that Cl.(o), being the Constitution (Removal of Difficulties) Order No. XI, 1975, far from making any such adaptation or modification, has made it further clear that the expression "commencement of this Constitution" as used in the various different Articles of the Constitution, would, even in respect of Sikkim, mean the 26th day of January, 1950. Clause (1) of Art.210 provides that business in the Legislature of a State shall be transacted in the official language or languages of the State or in Hindi or in English and clause (2) provides that "unless the Legislature of the State by law otherwise provides, this Article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have the effect as if the words 'or in English' were omitted therefrom". Paragraph 9 of the Removal of Difficulties Order, 1975, however, provides that for the words "fifteen years from the commencement of this Constitution", the wards "fifteen years from the commencement of the Constitution (Thirty-sixth Amendment) Act, 1975" shall be deemed to have been substituted in respect of Sikkim. Again, the proviso to Art.345 provides that "until the Legislature of the State otherwise provides by law the English language shall continue to be used for those official purposes within the State for which it was being used immediately before the commencement of this Constitution". But paragraph 8 of the Removal of Difficulties Order. 1975, provides that "until the Legislature of the State of Sikkim otherwise provides by law, the English language shall continue to be used for those official purposes for which it was being used immediately before the 26th day of April, 1975". If the expression "commencement of this Constitution" would, in respect of Sikkim, mean the 26th April, 1975, i.e., the date of the commencement of the Constitution (Thirtysixth Amendment) Act. 1975, from when the Constitution has really commenced to operate in Sikkim, then it was absolutely unnecessary to provide in Paragraphs 8 and 9 of the Removal of the Difficulties Order for the substitution of that expression by the expression "commencement of the Constitution (Thirtysixth Amendment) Act 1975" or by the expression "the 26th day of April, '75". 1975, from when the Constitution has really commenced to operate in Sikkim, then it was absolutely unnecessary to provide in Paragraphs 8 and 9 of the Removal of the Difficulties Order for the substitution of that expression by the expression "commencement of the Constitution (Thirtysixth Amendment) Act 1975" or by the expression "the 26th day of April, '75". Therefore, if the expression "the commencement of this Constitution" in Art.277, as in the other Articles, would, even in respect of Sikkim, mean the 26th day of January, 1950, then this imposition of Rs. 100/- as Court-fees by the order of the former High Court in Civil Misc. Appeals Nos. 1 and 2 of 1971 and also the continued imposition thereafter, cannot be regarded to be "fees" that were being lawfully levied" "immediately before the commencement of this Constitution". 11. The only other contention that now remains to be considered is that Art.371F(k) having continued in force "all laws in force before the appointed day" (that is, 26th April, 1975) in the territories comprised in the State of Sikkim, "the decision of the former High Court imposing Rs. 100/- as Court fees payable for such an application under the Arbitration Act, has also continued in force. The construction put upon by the Federal Court in United Provinces v. Atiqa Begum (AIR 1941 FC 16 at p. 31) on the expression "all the law in force" in S.292 of the Government of India Act, 1935 and by the Supreme Court in a series of decisions, re-considered and approved by it in the nine-Judge Bench decision in Superintendent and Remembrancer of Legal Affairs v. Corporation of Calcutta (AIR 1967 SC 997 at p. 1007), on the expression "all the laws in force" in Article 372 of the Constitution, would show that the said expression is wide enough to include non-statutory laws like case laws also. But a decision cannot and does not amount to law of case-law, unless it decides or declares the law on any point and I am afraid that the ad hoc determination by the former High Court in those two Civil Misc. Appeals No. 1 and No. 2 of 1971, allowing a refund of the Court-fees after deducting some amount therefrom, without any reference to and discussion of any law on the point, cannot amount to "law" or "law in force". Appeals No. 1 and No. 2 of 1971, allowing a refund of the Court-fees after deducting some amount therefrom, without any reference to and discussion of any law on the point, cannot amount to "law" or "law in force". I have also my doubts as to whether precedents as a source of law or any set of laws as case-laws even developed in Sikkim before its incorporation in India to continue as "Laws in force" under Article 371F(k) as the system of reporting of cases was then unknown. And that may be the reason why the expression "until" amended or repealed" has been used in Art.371F(k) and not "until altered or repealed or amended" as in Art.372 and this may lead to the conclusion that only such "laws in force" in Sikkim have been continued which may be "amended or repealed", like statutory laws, and not case-laws which are not subject to amendment or repealment, but may only be altered by judicial process. 12. I would, therefore, hold that the maintainability of the present Appeals cannot be questioned on the ground of insufficiency of Court-fees and that a Court fee of Re. 1/- being the maximum amount chargeable for applications and petitions under the Sikkim Court-fees law, would be sufficient. I, therefore, direct that the amount paid in excess of Re. 1/- in these two Appeals be refunded, to the Appellants.