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2001 DIGILAW 801 (PAT)

Rajdhari Singh v. State Of Bihar

2001-08-29

RAVI S.DHAVAN, SHASHANK KR.SINGH

body2001
Judgment 1. A writ petition was received at the High Court by post. On the administrative side it was directed that the petitioner should append Court-fee. The matter was, accordingly, sent to the stamp reporter. The High Court intimated the petitioner that if he desires that this matter be considered then he would need to pay Court-fee on the petition. The report of the stamp reporter on the petition is relevant. It is reproduced: "The stamp reporter proposed to file Court-fee of Rs. 250/- under Article 226 of the Constitution of India. Thereafter, a letter vide memo no. 4122 dated 2.8.2001 was sent to the petitioner intimating him regarding institution of writ petition as P.I.L. case, and he was also required to pay the Court-fee of Rs. 250/- under Article 226 or Rs. 500/- for Articles 226 and 227. The petitioner was given two weeks time for paying the Court-fee. Accordingly, the petitioner paid the Court-fee of Rs. 250/- on 14.8.2001 within the time fixed for that. The Court-fee of Rs. 250/- was supplied by the petitioner." 2. The Court-fee of course was paid on the petition. 3. The court finds that if a petition is to be filed before the Patna High Court and should a citizen or his lawyer may mention that the petition is being filed under section 226 read with Article 227 of the Constitution of India, then, the Court-fee would need be paid against reference to Article 226 being Rs. 250/- and another set of Rs. 250/- for making reference to Article 227. 4. It is nobodys case that the Court-fee may not be charged if a petition is presented under Article 226 or for that matter under Article 227 but, if consequentially action or direction may need be taken on the cause whether the petition is under Article 226 or under Article 227 it wouid inevitably be a writ of the High Court. 5. Under given circumstances, if a writ were to issue to a subordinate court or a Tribunal it will partake the nature of a writ of prohibition. 5. Under given circumstances, if a writ were to issue to a subordinate court or a Tribunal it will partake the nature of a writ of prohibition. The examination of the record would be under a writ of certiorari and if a direction were to be given, then, it wouid only be appropriate, regard being had to the circumstances that the High Court would be exercising extraordinary remedies, which a prerogative writ jurisdiction is, a writ of prohibition may replace a writ of mandamus in the case of a subordinate court or a Tribunal. 6. The Court is of the opinion that requiring a citizen to pay double set of Court-fee only because a petition will refer to Article 226 alongwith Article 227, prima facie seems to be arbitrary. In the circumstances, in so far as entry (3) to sub- clause (c) of item 1 to Schedule ll of the Court-fees Act, 1870 as amended by the Bihar Act 7 of 1996 is concerned this matter needs to be examined. If this entry were to stand it acts as a deterrent to a citizen to move the court and this may amount to an impediment in his liberty in availing the prerogative writ jurisdiction of the court which is a right conferred by the Constitution. Ultimately, what decision the court may take on the cause is another matter. 7. In the circumstances, let a copy of this order in formality be delivered to the Advocate General, Bihar, as a notice. 8. Notice on this context has already been received by the State counsel Mr. R.K. Dutta, S.C.4. He prays that the State of Bihar be given one months time to respond to the notice. 9. Put up immediately after one month on the supplementary list. 10. In so far as the petition is concerned having been filed in formality and the High Court having communicated to the petitioner that he may append the Court-fee, the petitioner cannot be given that much latitude that he can mail a petition to the High Court and not appear at the Bar. The court is not inclined to act on this petition in the absence of the petitioner. Thus, the record of the petition is consigned. 11. The court is not inclined to act on this petition in the absence of the petitioner. Thus, the record of the petition is consigned. 11. The other aspect, that is, the matter on the report of the stamp reporter dated 28 August 2001 will become a separate matter on which the registry will enter a separate number so that any matter on the merit of the petition as was presented is not mixed up with the notices which have been issued and accepted by the State counsel today. The cause will be registered as: In the matter of Court-fees re. Article 226 and 227 of the Constitution of India.