Patna High Court - Orders
Jang Bahadur Prasad Kesri & Ors vs The State Of Bihar, Through The ... on 30 March, 2018
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.2088 of 2017
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1. JANG BAHADUR PRASAD KESRI, Son of Sri Ramagya Prasad
Keshri, Resident of Kankarbagh Colony, P.S.- Kankarbagh, District- Patna.
2. Bacha Prasad Keshri, Son of Sri Ramagya Prasad Keshri, Resident of
Village+Post- Jitoura, P.S.- Madhuban, District- East Champaran.
3. Pradeep Kumar, Son of Sri Ramjatan Prasad, Resident of Village-
Ghanghti, P.S.- Chakia, District- East Champaran.
4. Vijay Prasad Yadav, Son of Basudeo Roy, Resident of Village- Banjhula,
P.S.- Chakia, District- East Champaran.
5. Dheerendra Mishra, Son of Baidnath Mishra, Resident of Village- Patlu
Belwa, P.S.- Chakia, District- East Champaran.
6. Nishant Jaiswal, Son of Dhruvdev Narayan Jaiswal, Resident of Omkar
Vatika Colony, Padrauna, P.S.- Padrauna, District- Kushinagar (U.P.)
7. Surendra Kumar, Son of Late Shyam Babu Roy, Resident of Mitra
(wrong in document as Mira) Mandal Colony, P.S.- Phulwari Sharif,
District- Patna.
8. Ravindra Kumar, Son of Sukhdeo Prasad, Resident of Mohalla-
Ballamichak, P.O.- Anisabad, P.S.- Phulwari Sharif, District- Patna.
.... .... Petitioner/s
Versus
1. The State of Bihar, Through the Principal Secretary (home) Government
of Bihar, Patna.
2. The Principal Secretary Department of Mines and Geology, Government
of Bihar, Patna.
3. The Director Mines, Department of Mines and Geology, Government of
Bihar, Patna, District- Patna.
4. The Assistant Director Mines, Department of Mines and Geology,
Government of Bihar, Patna, District- Patna.
5. The District Magistrate, Patna.
6. The Superintendent of Police, Patna.
7. The Office- in-Charge, Police Station- Bihta, District- Patna.
.... .... Respondent/s
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Appearance:
For the Petitioner/s : Mr. Sanjay Kumar Mishra, Advocate.
For the Respondent-State: Mr. Manish Kumar, AC to AAG 6.
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL ORDER
4 30-03-2018Perused the Stamp Reporter's note in compliance of the order dated 07.03.2018 passed in Cr. Misc. No. 12182/2018.
The office was called upon to submit a report in the Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 2/12 light of the observations made by this Court in the said case which read as under:-
"It appears that in Cr.W.J.C. No. 2088/2017 there are altogether 8 petitioners who have moved this Court for a direction to the respondents concerned to release their respective trucks which, according to them, have been wrongly seized by police in connection with Bihta P.S. Case No. 523/2017.
Let the Stamp Reporter examine as to whether 8 writ petitioners seeking release of their respective vehicles would be required to file separate court fee in order to maintain one writ application."
The report placed before this Court by the Assistant, Cr. Stamp Reporting Section reads as under:-
"Pursuant to hon'ble court's order dated 07-03-2018, it is humbly submitted that as per existing practice, separate court fee is not demanded at the time of reporting the criminal files under Cr. Writ jurisdiction, when number of petitioners are more than one, arising out of same police station case number.
Submitted before hon'ble court for kind perusal & consideration.
However, inconvenience caused to the hon'ble court, if any, is deeply regretted."Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 3/12
Having noticed the notes of the Stamp Reporter, this Court on 16.03.2018 adjourned the matter at the instance of the learned counsel representing the petitioners to make his submission as to why separate court fee be not directed to be paid for release of the vehicle, which according to this court, prima facie, is attracted because a direction to release of property of a person envisages recognition of a right of the person/(s) with respect to certain properties which they claim individually and for that if they have jointly moved this court seeking release they would be required to pay separate court fee.
Learned counsel for the petitioners as well as learned counsel representing the State have assisted this Court on this issue.
Learned counsel for the petitioner, at the outset, explains the legal position and submits that having examined the relevant provisions of the Court Fees Act in respect of chargeability of court fee on an application under Article 226 of the Constitution of India, in the case of the present nature, where several petitioners have joined the Writ Application for release of their respective vehicles which is in the nature of their individual properties, they would be required to pay separate court fee.
A decision of the co-ordinate bench of this court in Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 4/12 CWJC No. 11621 of 2012 [Dr. (Prof.) Anil Kumar & Ors. Vs. Bihar Rajya Dwara Sachiv Manav Sansadhan Vikash Bibhag, Bihar & Ors.] rendered as back as on 18.07.2012 has been brought to the notice of this Court. It is submitted that the learned co-ordinate bench had occasion to deal with a similar issue earlier and having examined the various judgments of this court as well as the judgments of the Hon'ble Supreme Court, the learned co- ordinate bench finally concluded that the petitioners in the said case would be required to file 11 more sets of court fees in order to maintain the Writ Application.
Having gone through the earlier judgment of the learned co-ordinate bench rendered in CWJC No. 11621 of 2012, I find it is just and proper to quote the relevant paragraphs from the said judgment as under:-
"The enquiry report dated 9.9.2011 reflects that though the order may be one, it essentially deals with and concerns claim for individual payments from the grants received by the University in turn from the State Government. No further discussion is required that the nature of relief sought is primarily and essentially individual with regard to each of the petitioners claiming individual payments of salary on that ground.
Counsel for the petitioners has relied upon 1998 (2) Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 5/12 PLJR 765 (Smt. Krishna Pati Devi Vs. State of Bihar). It was held that if the interest is common or joint one set of Court fee is payable. But when the interest is not common and each of the petitioners suffers individual injury as a result of the impugned order, separate Court fee is required.
Reliance was next placed on 2000(3) All PLR 345 (Ran Nandan Sharma Vs. State of Bihar). It was held that more than one person cannot join a single application to enforce individual claim and must pay separate Court fee. Only if the claims are common, one Court fee was required.
Learned counsel next relied on 2008 (1) BLJ 308 (Sudarshan Chaudhary Vs. State of Bihar). Relying on 2002(4) PLJR 655 (Shiv Shankar Pandey Vs. Union of India) which in turn relied upon A.I.R. 1981 SC 484 (Mota Singh Vs. State of Haryana), it was held that where the ultimate relief sought be individual in nature separate Court fee had to be paid.
The matter was considered long back by the Supreme Court in (1964) 2 SCR 879 (Chandra Bhan Gosain v. State of Orissa) holding as follows:-
"1.This is an appeal against the order of the Deputy Registrar directing the present case to be registered Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 6/12 as nine appeals and requiring the appellant to pay nine sets of court fees. The Deputy Registrar had relied on two cases of this Court, namely, Lajwanti Sial case (Petition for Special Leave No. 673 of 1959) and Kishinchand Chellaram case (Civil Appeals Nos. 462 to 465 of 1960). We do not think that these precedents cover the present case.
2. In Lajwanti case there were a number of applications under Section 66(2) of the Income Tax Act for reference of the same question. There were in fact a number of separate references but they were dealt with by one judgment from which the appeal to this Court arose. That was really a case of five appeals for the common judgment must be taken to have been delivered in each of the different reference cases.
3. Kishinchand Chellaram case is also not helpful because there four applications by four different assessees had been made for reference of three identical questions arising in each assessment case under Section 66(1) of the Income Tax Act. Though it appears that there was one order of reference to the High Court and the High Court treated the case as a single case of reference, it could be said that there were in fact a number of references.
4. The present case however originated out of one Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 7/12 petition under Article 226 of the Constitution challenging the validity of various assessment orders.
Obviously here, there was only one proceeding. It could not be said that there were as many proceedings as there were assessment orders for the petitioner had by single petition challenged them all together. When an appeal is taken to this Court from the judgment of the High Court in such a petition, it is impossible to contend that there are more appeals than one. Therefore, the appellant before us is liable only to pay one set of court fee and other charges as in a single appeal. Action may be taken accordingly by the office, if necessary by refunding the excess charges made."
Learned counsel has further placed before this Court another judgment of a co-ordinate bench of this Court in the case of Shiv Shankar Pandey Vs. Union of India [2002 (4) PLJR 655] wherein the learned co-ordinate bench considered Article 1(d)(i) of Schedule II of the Court Fees as amended by Section 2 of Court Fees (Bihar Amendment) Act, 1995 (Bihar Act 7 of 1996) which reads as under:-
"Schedule II Fixed Fees Application for petition xx xx xx xx xx xx xx
(d) When presented to a High Court under Article 226 of the Constitution.
Rs. 250."
Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-20188/12 In Paragraph 6 of the said judgment, the learned co-ordinate bench held that-
"There is serious misconception amongst the legal fraternity that in a petition under Article 226 of the Constitution of India court fee is to be paid on the basis of relief sought. Article 1(d)(i) of Schedule II of the Court Fees Act provides for payment of court fee on petition and not relief. Grant of relief to one of the petitioners shall not result into granting relief to each of the petitioners."
In Paragraph 7, the learned co-ordinate bench has quoted the relevant paragraphs from the judgment of the Hon'ble Supreme Court in Mota Singh & Ors. Vs. State of Haryana & Ors. (AIR 1981 SC 484) which I quote hereunder for a ready reference:-
"Having regard to the nature of these cases where every owner of a truck plying his truck for transport of goods has a liability to pay tax impugned in the petition, each one has his own independent cause of action. A firm as understood under the Partnership Act or a Company as understood under the Indian Companies Act, if it is entitled in law to commence action either in the firm name or in the Company's name, can do so by filing a petition for the benefit of the company or the partnership and in such a case court fee would be payable depending upon the legal status of the petitioner. But it is too much to expect Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 9/12 that different truck owners having no relation with each other either as partners of any other legally subsisting jural relationship of association of persons would be liable to pay only one set of court-fee simply because they have joined as petitioners in one petition. Each one has his own cause of action arising out of the liability to pay tax individually and the petition of each one would be a separate and independent petition and each such person would be liable to pay legally payable court-fee on his petition. It would be a travesty of law if one were to hold that as each one uses high way, he has common cause of action with the rest of truck pliers." (Underlining mine) Learned counsel for the State agrees with the submissions advanced at the Bar and submits that in the present case it is crystal clear that all these petitioners have moved this Court together but for their own individual cause as they are seeking reliefs for release of their respective vehicles which have been seized in connection with Bihta P.S. Case No. 523 of 2017 registered for offences U/S 406, 420, 467, 468, 471, 120B/34 of the Indian Penal Code read with Section 3 of the Bihar Minerals (Prevention of Illegal Mining, Transportation and Storage) Rules, 2003.
Having heard learned counsel for the petitioner as well Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 10/ 12 as learned counsel representing the State, I am of the considered opinion that there is no dispute at all on the propositions already set forth and decided by this Court in the judgments which have been taken note of here-in-above, still the Stamp Reporter's saying that as per the existing practice separate court fee is not demanded at the time of reporting the criminal files seems to be misconceived and cannot be allowed to prevail any more.
An application under Article 226 of the Constitution of India whether registered as a Civil Writ Application or a Criminal Writ Application has to be examined for purpose of chargeability of court fee by taking into consideration as to whether granting of relief to one petitioner will automatically result in granting of relief to another petitioner. What has been held by the learned co- ordinate bench of this Court in Paragraph 6 in the case of Shiv Shankar Pandey (Supra) has to be adhered to. Wherever more than one petitioner move this Court in one application, the Stamp Reporter has to look into the guiding factor as to whether the relief of each of the petitioners is individual and each of them has his own cause of action granting relief to one of them shall not result into granting relief to each of the petitioners and where it is found that the relief of each of the petitioners is individual and grant of relief to one of them would not result in granting relief to the other Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 11/ 12 petitioners the same benefits, in law, each of the petitioners will be taken to have preferred the application individually and they will be liable to pay separate court fee.
I find that earlier while disposing of CWJC No. 11621 of 2012 the learned co-ordinate bench of this Court in the later part of the order recorded as under:-
"It is unfortunate that the time of the Court was consumed on matters so well settled by repeated pronouncements. The Registrar General will take appropriate steps."
Still the Court is to take up the same issue of payability of court fee in this matter because the Stamp Reporter says that they are not charging separate court fee as per the existing practice in the criminal files. In the opinion of this Court, such practices which have no legal sanctity and is opposed to what has been held by this Court by giving a reasoned judgment and order on the issue cannot be continued.
Let this order be brought to the notice of the learned Registrar General of this Court to take appropriate steps and order accordingly.
Learned counsel for the petitioner submits that seven sets of separate court fee shall be filed within a period of three Patna High Court Cr. WJC No.2088 of 2017 (4) dt.30-03-2018 12/ 12 weeks from today in order to maintain this Writ Petition on behalf of the writ petitioners.
It is made clear that in case of failure of the petitioners to file seven separate court fees in respect of the seven writ petitioners, the Writ Application will be required to be confined in respect of only one petitioner.
Learned counsel, at this stage, submits that the vehicles in question have already been released during pendency of the Writ Application, therefore, the Writ Application will survive as respect the other reliefs prayed in the Writ Application.
List this matter after three weeks.
(Rajeev Ranjan Prasad, J)
AFR
Dilip, AR
U T