Madhya Pradesh High Court
Ramji Sharma vs High Court Of M.P., Jabalpur And Ors. on 6 January, 1989
Equivalent citations: AIR1989MP247, AIR 1989 MADHYA PRADESH 247, (1989) JAB LJ 237
JUDGMENT T.N. Singh, J.
1. After a great deal of hesitation, after more than one "last chance" expired, return of the first respondent came on record in this matter on 16-12-1988. That respondent is the Registrar of this Court, albeit at the Main Seat. Indeed, from the Main Seat, a "Memorandum" was issued on 8-10-1984 under the signature of the Deputy Registrar and in this matter, validity thereof is seriously assailed.
2. Other respondents are the State of Madhya Pradesh through Collector, Gwalior, impleaded as respondent 2, besides the Deputy Registrar of this Court who has been impleaded as respondent 3. On 7-10-1988, this Court look the tentative view that the question agitated concerned exemption of court-fees, albeit under a State Government Notification, and as such, a return in this matter from respondent 2 would be welcome. However, on 16-12-1988, State Counsel, Shri Govind Singh, made a statement at the Bar that he was not representing any other respondent except respondent 2 and he further submitted that State did not have to say anything in the matter and, therefore, no return was filed on its behalf.
3. We extract in extenso the text of the impugned "Memorandum", addressed to District Judges :
"1 am directed to refer to your memo. No. 387/11.15.1/42 Pt. IV dt. 6.4.84 on the subject mentioned above and to inform you that the procedure prescribed for suits instituted by indigent persons vide Order 33, Rules. 1 to 18, C.P.C read with Section 141, C.P.C. may be followed in all the cases instituted by a person seeking exemption from payment of Court-fee under Govt. Notification No. 9/1/83/B-21 dt. 1-4-83".
We do not consider necessary to extract similarly the Government Notification dt. 1-4-1983 referred in the above extract because that has been extracted in Laxmi Narayan, AIR 1988 Madh Pra 142 which petitioner cited and we would have occasion to deal herein with that decision. Suffice it to say this much only at this stage that by the said Notification dt. 1-4-1983, the State Government exercised explicitly its powers under Section 35 of the Court-fees Act, for short, the 'Act', to "remit in the whole of the State of Madhya Pradesh the Court-fees mentioned in Articles 1-A and 2 of the First Schedule and Articles 5, 17 and 21 of the Second Schedule to the said Act payable on plaint by the following categories of persons whose annual income immediately preceding the date of presentation of plaint from all sources (did) not exceed Rs. 6,000/-". Not only members of the scheduled castes and scheduled tribes, but "persons belonging to the weaker sections of the society", besides minors, women, artisans, unskilled labourers and landless labourers have been categorised under the Notification as persons eligible for the exemption.
4. In the course of his arguments, the petitioner, who is a practising advocate of this Court, complained that the subordinate courts have taken it to be their bounden duty to comply with the mandate of t he impugned ''Memorandum" which has occasioned a situation in which litigants of the exempted category find themselves deprived illegally and unconstitutionally of the benevolent provision made by the State Government in terms of the Directive Principles enshrined in Part IV of the Constitution. Although under the State Government's Notification dated 1-4-1983 those persons have been given total exemption of court-fees, as a result of the impugned "Memorandum" being enforced, the exempted litigants are being ordered by subordinate courts to make payment of court-fees in accordance with the provisions of Rule 20 of Order 33. C.P.C. Shri Sharma also contended that although this Court did express its view that the provisions of Order 33, C.P.C. are not to be invoked by the subordinate courts when exemption is claimed by any plaintiff in terms of Government Notification dated 1-4-1983, in Basanti Devi Goyal's case, 1987 Cur Civ LJ (MP) N 156, the impugned Notification was not before this Court in that case and accordingly that was not quashed. Apparently, decision in that case was made in a Civil Revision preferred under Section 115, C.P.C. As the result, poor litigants who arc meant to be benefited under the said Government Notification, are put to great hardship and that has continued unabated. It became necessary, therefore, to invoke the Writ jurisdiction of t his court in public interest to undo the mischief and in doing so, Shri Sharma submitted, he was merely discharging his Fundamental Duty as a citizen of this democratic Republic.
5. In the return, the genesis of the impugned "Memorandum" is disclosed. It is stated that under Article 225 of the Constitution, the High Court is authorised to exercise the power of control over the subordinate courts. It is also stated that the Hon'ble Judges of this Court have power to make rules of the Court and that under those Rules, a Committee had been constituted and that Committee had the authority to issue general circulars to District Judges and subordinate courts. It also stated that powers vested under Article 235 of the Constitution are being exercised by the Committee formed by the High Court under Article 235; that the said Committee has ordered that the procedure prescribed for suits instituted by indigent persons vide Order 33. Rules 1 to 18, C.P.C. read with Section 141 be followed in all cases instituted by persons seeking exemption from payment of court-fees under Government Notification No. 9/1/83/B-21, dt. 1-4-1983.
6. We have made a reappraisal of Basanti Devi (supra) wherein it was held that the matter of payment of court-fees was a question that concerned the State Revenue and the State Government could competently act in that regard in exercise of its powers under the Act; this Court had nothing to do with that except in matters of Rules to be framed as respects payment of costs and process as provided under the Act itself. According to us, in taking that view the position that obtains under the Act was correctly stated. As per Section 35 of the Act, "the Appropriate Government may, from time to time, by notification in the Official Gazette reduce or remit, in the whole or in any part of the territories under administration all or any of the fees mentioned in the First and Second Schedules to this Act annexed". Chapter IV of the Act is captioned "Process Fees" and thereunder, provisions are made for High Courts to make Rules in connection with the matter enumerated in Section 20 of that Chapter. The legislative competence in regard to State Government's power envisaged under Section 35 can be validly traced to Entry No. 44 of List III. Thereunder, the State Government is duly empowered to make any law in connection with any matter concerning "fees collected by means of judicial stamps".
7. Before we look into the provisions of the Constitution, we consider it appropriate to state at this stage, that no proceeding or resolution of any Committee has been placed before us we have also not been referred to any Rules said to have been framed either under Article 225 or 235 of the Constitution constituting such a Committee or authorising such a Committee to issue "general circulars" to subordinate courts, of the nature of the impugned "Memorandum". On referring to Articles 225 and 235 of the Constitution, we have found little warrant for the proposition contended in the return that provision exists therein for constitution of such a Committee. This Court had occasion to consider the ambit and scope of Article 225 in Jagdishlal Dhody, AIR 1988 Madh Pra 4. It was held in that case that Rules framed under Article 225, as the language of the said Article speaks, concerned only the power of the High Court to make Rules of the Court "to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts'' and Article 225 did not envisage that any such Rule could touch the powers of a Judge or Court derived from the Constitution or any statute. Indeed, Article 225 deals only with practice and proceedings of the High Court and not of subordinate courts. Under the Constitution, no Judge of the High Court, either alone or in a Committee, not statutorily contemplated, has any power to deal with practice and proceedings of subordinate courts. The only source of pre-constitutional statutory power to deal with "procedure of civil courts subject to their superintendence" of High Courts, can be read in Section 122, C.P.C. In virtue of the provisions of Articles 227(2)(b) and 372 of the Constitution, not only existing Rules made pursuant to the power conferred under Section 122. C.P.C. shall continue to be in force, those may be altered even and new Rules may also be framed "for regulating the practice and proceedings" of subordinate courts. In our view, the only source of power of High Courts to regulate the "practice and proceedings" of subordinate courts are to be found in Section 122 et. seq., C.P.C. and Article 227(2)(b) of the Constitution. As per Section 123, C.P.C. constitution of a Rule Committee is contemplated but, that Committee is not vested with plenary powers of legislating on matters of procedure. As per Section 124, such Committee is required to make a report to the High Court and finally, the power to legislate has to be exercised by the High Court. We have no doubt that "High Court", therefore, has to be distinguished from the Rule Committee and the Committee that the High Court may have constituted for the purpose of exercising its power under Article 227(2) of the Constitution. When the High Court exercises its power of legislation, whether under Section 124, C.P.C. or under Article 227(2) of the Constitution, that power has to be exercised by the Judges of the High Court sitting in, what is generally called, "Full Court" in accordance with the provisions of Article 216 of the Constitution. The High Court consists of the Chief Justice and the other Judges thereof and it cannot be constituted in any other manner because of what has to be read in Article 216. Indeed, if we have to say any things more, we add that even as per any Rule framed under Article 225, powers of any Judge of the High Court cannot be modified or enlarged as is not contemplated under the Constitution as held in Jagdishlal Dhody (supra). The general power of superintendence for regulating the "practice and proceedings" of subordinate Courts can be exercised only in the manner provided under Article 227(2) read with 216 of the Constitution.
8. We have already referred to the provisions of Sections 122 and 124, CPC. but we would also refer to M.P. Civil Courts Act, 1958 and to certain provisions thereof. That Act provides for constitution of Civil Courts in the State and Chap. IV of the said Act deals with "Administrative Control'' to be exercised on those courts. Section 14 of that Chapter provides that subject to the general superintendence and control of the High Court, the District Judge shall superintend and control all other Civil Courts in the local area within his jurisdiction. However, according to Section 23 of Chap. V (Miscellaneous Provisions) the High Court is authorised to make Rules for, among others, "prescribing the manner in which proceedings of Civil Courts shall be kept and recorded and also indeed, "regulating all matters relating to officers or court". Indeed, Clause (b) of Section 23, rules may be framed also for "determining the fees to be charged for processes issued by Civil Courts", but advisedly, no power is conferred therein to authorise the High Court to make any Rule as respects payment or exemption of court-fees in respect of cases filed in Civil Courts. We have no doubt that even if any Rules are framed under Article 227(2) or Section 124. CPC for regulating the procedure of Civil Courts in the particular context of Government Notification dt. 1-4-1983, such Rules cannot impair the force and effect of the Notification. In other words, exemption granted by the State Government in terms of the said Notification cannot be nullified in any manner by regulating the procedure of any Civil Court. If that be so, there would be even less authority for any extra-constitutional Committee to issue any extra constitutional "circular" to achieve that object which would neutralise the exercise of the powers by the State Government under Section 35 of the Act.
9. In our view, reliance on Article 225 is also misconceived. By now, it is well settled that the "control" envisaged under Article 235 is of administrative nature. The context and getting of the provision makes that position clear, but there is also high judicial authority for that proposition. The Constitution Bench, in State of West Bengal v. Nripendra Nath, AIR 1966 SC 447 construed the term "control" in the context of the provisions, inter alia, of Articles 227, 233 and 235. In Para 13 of the Report, it was observed--
"Article 227 gives to the High Court superintendence over these courts and enables the High Court to call for returns etc. The word "control" in Article 235 must have a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of the Judges".
The same view has been consistently expressed by the Apex Court on the connotation of the term "control" used in An. 222. (See Jugal Kishore, AIR 1967 SC 1494; G. S. Nagmoti, (1969) 3 SCC 325; Dayaram, AIR 1984 SC 850; Tejpal Singh, AIR 1986 SC 1814; Dev Singh, AIR 1987 SC 1629). Even if "control" envisaged under Article 235 is disciplinary as well as administrative control, that control can be exercised thereunder only by the High Court and not by any Committee, even if appointed by the High Court, unless Rules are framed by the High Court for the purpose of exercise of its powers thereunder and the Committee is appointed under those Rules. This view is supported by what appears in Section 23 of M. P. Civil Courts Act which, according to us, has been enacted to give effect to the constitutional provision of Article 225 as is made clear by the heading of the relevant Chap, IV of the said Act. Because the power of administrative control under Article 235 cannot be exercised by any Judge or any Committee in an arbitrary or unauthorised manner, legislature has made that provision. We would, however, reiterate once again in this context as well that in the matter of regulating the "practice and proceedings" of the subordinate courts, existence of express provision under Article 227(2)(b) lends support to our view that the nature of "administrative control envisaged under Article 235 is different and is not related to the same matter. As such, for that reason also, we must say that no assistance can be derived from Article 235 to save the impugned "Memorandum".
10. For all the foregoing reasons, we are constrained to hold that the impugned "Memorandum" is not saved either by Article 225 or by 235 of the Constitution and indeed no other statutory or constitutional provision has been shown to us to sustain the validity thereof. On the other hand, it appears to us that the impunged "Memorandum" is destructive of the very object and purport of the Government Notification dated 1-4-1983. There is much force in the contention pressed by Shri Ramji Sharma that if recourse to the provisions of Rule 10 of Order 33, CPC is made by subordinate courts by ordering payment of court-fees by successful litigants, then the exemption contemplated under the Government Notification would have no value. The exercise of such unauthorised judicial power under Rule 10 of Order 33, CPC, in our opinion, as would negate the force and effect of the Government Notification issued in exercise of its statutory powers under Section 35 of the Act, would be illegal and unconstitutional.
11. The Deputy Registrar of this Court issuing the impugned "Memorandum" or even the Committee authorising issue thereof, in our view, was unmindful of the consequence likely to ensue therefrom. Indeed, the scope of a proceeding under Order 33, CPC, is entirely different one and it has no relevance at all to the question of total exemption of court-fees contemplated Under Section 35 of the Act. The procedure contemplated under Order 33, CPC provides merely for deferment of payment of court-fees and not for total exemption and that procedure cannot, therefore, be followed when a claim is made for total exemption pursuant to the Government Notification. The term "indigent person" is defined in the Explanations appended to Rule 1 of Order 33, who, evidently, is not a person of the same category as is contemplated under the Government Notification. Holding an enquiry into "indigence" of a person and to deal with his application for deferment of court-fees in accordance with the provisions of Order 33 is Certainly likely to create the serious hardship to the persons of such categories in respect of which total exemption is contemplated under Government Notification. The very purpose of exemption, as noted in Laxmi Narayan (AIR 1988 Madh Pra 142) (supra), that of encouraging the weaker section of the society to ward off exploitation, will be lost if that is done. In respect of small claims of the small men of the weaker section of society, if not instant, quickest possible decision on merit of the claim would only fulfil the constitutional requirement of Article 39A. But, it is common knowledge that indigence proceedings, as a primary proceeding protract over number of years by revisions counter-revisions and so on, after the first stage of "enquiry" leisurely made at the level of the trial Court.
12. We are of the opinion that it may be well within the competence of the trial Court, in the absence of Rule competently made by a competent authority regulating the procedure of such court in respect of any claim made for exemption of court-fees under Section 35 of the Act, to follow such procedure in dealing and disposing of the claim as may be conducive to expeditious conclusion of the trial. Indeed, no separate proceeding is at all contemplated for disposal of the claim for exemption. It will only be necessary, for the claimant/plaintiff to prove the requirements of the Notification to the satisfaction of the trial Court. He has only to prove that his income from all sources does not exceed Rs. 6,000/- per annum and that he is a person who belonged to any of the categories mentioned in the Notification. Let it be noted in this connection that even under Section 149, CPC, a Civil Court has the power to entertain any suit without payment of court-fees and to fix a date by which the plaintiff has to pay the same. It is contemplated therein that when such an order as to payment of court-fees is complied by the parties concerned, the suit shall be deemed instituted on the date when the plaint was filed This position also follows from what appears in Order 7, Rule 11(c), CPC: By following that procedure, the plaintiff claiming exemption, on his failure to prove the requirements of the Notification, may be asked to pay the requisite court-fees by a specified date and on non-compliance of that order, the plaint may be rejected.
13. It may be that when exemption claimed is allowed, it may adversely affect State Revenue and on that ground, it would be well within the jurisdiction of the trial Court to notice the Collector and hear him if he opposes the claim for exemption. This requirement would follow from the principles of natural justice as also indeed from Section 35 of the Act itself because it would be competent for the State to oppose claim made by any particular litigant in any particular case on the ground that he did not qualify for the exemption granted under the Notification. When exemption is granted, the State/ Collector would cease to have any further interest in the suit or its subject-matter. On the other hand, as held in Mahphooj Hussain, AIR 1987 Madh Pra 286, Court has to guard the Revenue's interest in indigence proceedings as per Rules 10 and 14 of Order 33, CPC. We have no doubt, therefore, that in so far those provisions are concerned, there is no scope for the application thereof in respect of a claim for exemption made under the Notification. In Laxmi Narayan (AIR 1988 Madh Pra 142) (supra), trial Court's acceptance of plaintiffs evidence and determination on that basis fulfilment by him of the requirements of the Notification was held valid, but it has to be made clear that if Collector chooses to adduce, in any particular case, any contra-evidence, that has also to be assessed in rendering final decision on the claim made for exemption.
14. In the result, the petition succeeds and is allowed. The impugned "Memorandum" No. A/7923/(III. 1.5/57-Ch. 20), dt. 8th October, 1984, issued under the signature of ShriT.N.H.Pancholi, Deputy Registrar in the Main Seat of the High Court, to the District and Sessions Judges, stands quashed. It will be competent for all Civil Courts of this State to deal with claims made for exemption of court-fees under State Government's Notification dt. 1-4-1983 in accordance with observations herein made. We have no doubt that even if any Rule is made by this High Court in exercise of its powers under Article 227(2)(b) or Section 124, CPC, it shall be ensured that the guidelines provided therein are not destructive of the object and purpose of the Government Notification. Otherwise, it would carry the same vice as of the impugned "Memorandum".