TMI Blog1967 (3) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ion gets posed may first be briefly set out. By W.P. No. 1743 of 1964 the petitioner, who has to file a suit for reliefs valued at ₹ 2,06,552 and would be affected by the levy, seeks the issue of a writ of mandamus or other direction or order, declaring the relevant rules relating to the levy of fees on ad valorem scale invalid and ultra vires and for a direction to the Registrar of the High Court to levy fees in suits and appeals in the Original Side of the High Court in accordance with the Court-fees Act, 1870, as amended in 1922, and applicable to proceedings in the High Court in its Original Jurisdiction before the High Court-Fees Rules, 1956, came into force. The petitioner in W.P. No. 3891 of 1965 is an applicant for probate in O.P. No. 124 of 1965 in the Original Jurisdiction of this Court and caveat has been entered in the matter. As under the rules regarding Court-fees, as they now stand, if caveat is entered and the application for probate registered as a suit, one half of the scale of fees on ad valorem scale on the market value of the estate, less the fee already paid on the application for probate, is levied, the petitioner has come out with the application for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that it is applicable to similar documents filed in original proceedings in a District Court and in appeals from decrees and orders of a District Court. 4. The result was to apply the Court-Fees Act VII of 1870 as amended in Madras in 1922, to proceedings in the High Court in its Original Jurisdiction also. Under the Court-Fees Act, 1870, current till it was amended in Madras in 1922, the fee was levied at 71/2 per cent, on the value of the subject-matter of claims upto ₹ 1,000; between ₹ 1,001 and ₹ 5,000 the rate was 5 per cent.; between ₹ 10,000 and ₹ 20,000 it was 3 per cent.; between ₹ 20,000 and ₹ 30,000 it was 2 per cent.; and thereafter upto ₹ 50,000 it was 1 per cent. For all claims above ₹ 50,000 the rate was 71/2 per cent, of the claim in excess of ₹ 50,000, and the maximum fee leviable was also fixed, namely, ₹ 3,000. The Madras Court-Fees Act, 1922, while raising the percentage and levy, retained the slab system, the rate tapering off as the value of the subject-matter went up. The fee on a claim for ₹ 50,000 was ₹ 1,762-7-0 and above ₹ 50,000 for every ₹ 5,000 or part thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the levy as a highly arbitrary and oppressive exaction, not authorised by law. The contention is that what can be levied and may be levied is only a fee and not a tax, while what is levied though termed fee, in fact, is a tax. 5. Prior to the Court-Fees Act of 1955 the source of the High Court's power to settle a table of Court-Fees in proceedings before the Court was traced to Section 15 of the Charter Act (1861) 24 and 25 Vict. 104, Clause 37 of the Letters Patent of this Court, and Sections 106(1) and 107(e) of the Government of India Act, 1915, corresponding to Sections 223 and 224 of the Government of India Act, 1935. The matter is not res integra and is covered by decisions, to refer to the more recent: Seshadri v. Province of Madras (1954) 1 M.L.J. 206 : I.L.R. (1954) Mad. 643, Satyanarayanamurthi v. Income Tax Appellate Tribunal (1957) 1 A.W.R. 360 : A.I.R. 1957 A.P. 123. Article 225 of the Constitution preserved the pre-existing power of the High Court to make rules of Court and prescribe court-fees. Under this Article any rule made by the High Court will not have legal authority if the Legislature made a law on the same subject, and now the Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncommensurate with the requirements of the occasion. Court-fee according to Counsel has become a tax on litigation and litigants, not the subject of any particular legislative head under the Lists; Parliament alone would have the power to impose such a levy under Article 248(2) and Entry 97 of List I. Learned Counsel contend that as the demand assumes staggering proportions as the value of the claim goes up, it is regressive in its effect and keeps out bona fide suitors from seeking justice through Courts and vindicating their rights. It has become a weapon in the hands of defendants to coerce settlement of lawful claims at low figures. A suitor may not be able to find the exorbitant court-fees though he would be considered a man of means if it comes to a question of his seeking leave to sue in forma pauperis. The ad valorem scale without an upper limit is wholly unreasonable and could not be justified. It can have no relation to the time taken in Court or the services rendered to the suitor. The claim may be on a hundi or negotiable instrument for one lakh of rupees and it may be disposed of ex parte, of it may be a commercial cause for a like amount where the defence is nominal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for raising general revenue is permissible. The main contention of the learned Advocate-General, now appearing for the State, was that the fee levied in Courts does not belong to the class of fees which have to be commensurate with the services rendered, and to sustain whose validity they must be correlated with the services rendered. It was submitted that the fees levied in Courts are, and have always been, treated, on a different footing from all other fees, and that the element of quid pro quo should not be looked for in fees levied in Courts. It was further submitted that the fees collected under the Court-Fees Act had always been treated in the past as part of the public revenues. Before us further statements of receipts and expenditure in relation to administration of justice in the State have been filed at the instance of the Advocate-General, and we will be referring to the same in due course. The points raised require detailed and careful consideration. 8. To start with it is agreed on all sides that the only head of legislation in the State List, List II of the Seventh Schedule, under which the levy could be sustained, is Entry 3 already set out. It is necessary in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body for local purposes. 10. Similarly, in relation to the States, while Article 198(1) prohibits the introduction, of a Money Bill in a Legislative Council, Article 199(2) inter alia states that a Bill shall not be deemed to be a Money Bill by reason only that it provides for the demand or payment of fees for licences or fees for services rendered. Article 277 states: Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law. 11. It may be that, generally speaking, the word fee has no rigid meaning and it may be that it is occasionally found used, while the more appropriate word would be tax. But, as will be seen presently, in taxation parlance, the expression 'fee' has acquired a distinct concept, and the Constitution has m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it becomes a tax. In the first Sirur Mutt Case (1954) S.C.J. 335 : (1954) 1 M.L.J. 596 : (1954) S.C.R. 1954., where the validity of the levy of contribution under the Madras Hindu Religious and Charitable Endowments Act, by Section 76 of the Act, was questioned, the distinction between 'tax' and 'fee' is thus brought out: It seems to us that though levying of fees is only a particular form of the exercise of the taxing power of the State, our Constitution has placed fees under a separate category for purposes of legislation and at the end of each one of the three legislative lists, it has given a power to the particular Legislature to legislate on the imposition of fees in respect to every one of the items dealt with in the list itself. Some idea as to what fees are may be gathered from Clause (2) of Articles 110 and 199 referred to above which speak of fees for licences and for services rendered. After pointing out that the characteristic of tax is that the levy is for the purpose of general revenue which, when collected, forms part of the public revenues of the State, that the object of the tax is not to confer any specific benefit upon any particular indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments, fees and taxes. (Vide Seligman's Essays on Taxation, page 406.) Our Constitution has, for legislative purposes, made a distinction between a tax and a fee and while there are various entries in the legislative lists with regard to various forms of taxes, there is an entry at the end of each one of the three lists as regards fees which could be levied in respect of any of the matters that is included in it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters. 14. In that case their Lordships affirmed the decision of this Court striking down he contribution levied under Section 76 of the Madras Hindu Religious and Charitable Endowments Act as a tax and not a fee and as beyond the legislative power of the State. Section 76 which was struck down authorised the levy of an annual contribution on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court observing (at page 976): The State Legislature has power to levy a fee under the Seventh Schedule, List III, Entry 28 read with Entry 47. The Legislature was, therefore, competent to levy a fee for rendering services in connection with the maintenance, supervision and control over the religious institutions and it was competent to levy the fee retrospectively. Their Lordships again in this decision reiterated the several characteristics of 'fee' in the following terms (at page 975): A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to each individual who obtains the benefit of the service. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected there being reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of tax. It is true that ordinarily fee is u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of quid pro quo which is absent in a tax. It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of services or in performing any particular work for the benefit of certain individuals. But in order that the collections made by the Government can rank as fees, there must be co-relation between the levy imposed and the expenses incurred by the State for the purpose; of rendering such services. This can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering these services. Thus two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly and, in the second place the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes. 17. The classification by the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amining the prior decisions of the Court observed: In regard to fees there is, and must always be, co-relation between the fee-collected and the service intended to be rendered. Cases may arise where under the guise of levying a fee Legislature may attempt to imposed a tax; and in the case of such a colourable exercise of legislative power Courts would have to scrutinise the scheme of the levy very carefully and determine whether in fact there is a co-relation between the service and the levy, or whether the levy is either not co-related with service or is levied to such an excessive extent as to be a pretence of a fee and not a fee in reality.... The distinction between a tax and a fee is however, important and it is recognised by the Constitution. Dealing with the challenge to the levy in that case, based on the form in which the levy was imposed, it was stated (at page 469): Therefore, in our opinion, the mere fact that the levy imposed by the impugned Act has adopted the method of determining the rate of the levy by reference to the minerals produced, by the mines would not by itself make the levy a duty of excise. The method thus adopted may be relevant in considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the above decisions it is difficult to accept any argument that the word 'fees' Used in Entry 3 of List II should not be given its limited meaning as impost for services sought or rendered. We cannot ignore plain language in. heads of legislation, Entry 96 of List I, Entry 66 of List II, and Entry 47 of List III, excepting fees taken in any Court. In the context of the user, the fees excepted cannot be a different kind. The part separated may be presumed to be of the same brand as the whole. Reference may also be made here to Entry 44 of List III stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duty. Tax is a genus of which fee is a species, and when we are on the content of legislative powers under the head 'fees' in a Constitution, where legislative powers are distributed between the Provinces and the Union, we cannot too readily ignore the accepted connotation of the expression 'fees'. The Constitution itself has indicated the scope of the expression 'fee' in Articles 110 and 199; fees may be for licences or for services rendered. When a power to tax is given it is practically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion between fee and tax was observed, though it often got blurred, where the distinction could have no material significance. Under the Government of India Act, 1935, Entry 59, List I of the Seventh Schedule, provided for fees in general in respect of matters in the list, but not including fees taken in any Court. Under Section 2i4 of the Act the Federal Court was empowered to make rules as to the fees to be charged in respect of proceedings in that Court. Entry 1 of List II of the Act related to the constitution and organisation of all Courts except the Federal Court and fees taken therein, and Entry 54 of List II contained the general head 'fees' in respect of any of the matters in List II, but not including fees taken in any Court. The Entries, in List III, 25 and '66, while providing for fees in respect of the matters in the List excepted from the head of legislation fees taken in any Court. Corresponding to Articles 110 and. 199 of the present Constitution, there were Sections 37 and 82, excepting fees for licences or fees for services rendered, from the concept of Money Bills. Section 136 of the Act defined the revenues of the Federation and the revenues of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, and cannot affect the real character of the levy. Before the distribution of legislative powers the distinction between fee and tax could arise, and have arisen, when local authorities were delegated the power of fixing rates in respect of imposts and levying licence fees. When the Legislature itself had plenary powers of taxation, it would matter little whether the levy exceeded the limits of the impost as fee properly so called. But when the Legislature authorised the levy, and left it to a local authority or other body, then the question can arise whether the delegated authority had exceeded its powers. If the Legislature had sanctioned only a fee, and the delegated authority in excess of its powers under the guise of a fee had provided for an exaction which in reality would be a tax, then it would be ultra vires the local authority. If what had been authorised was a fee, then there has to be correlation between the income and the expenditure. The Court in such a case should scrutinize the reasonableness of the levy and strike down the levy if it had exceeded the bounds of a fee. The question in this form arose for consideration before the Rangoon High Court in Municipal Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on then, was the Government of India Act of 1919 with diarchy in the Provinces. The subjects of administration were divided into two categories, central and provincial by the rules known as the Devolution Rules. The sources of revenue were also divided, and the Provincial, Legislature was empowered, to present its own budget and levy its own tax relating to the provincial sources of revenue. It could not, under Section 80-A of the Act, without the previous sanction of the Governor-General, make or take into consideration any law imposing or authorising the imposition of any new tax, unless the tax was one scheduled as exempted from the provisions of the rules made under the Act. The heading of Schedule II of the Scheduled Taxes Rules provided that in the Schedule the word 'tax' included cess, rate, duty or fee. In the List of provincial subjects in the Government of India Act, 1919, item 20 is described thus: Non-judicial stamps, subject to legislation by the Indian Legislature, and judicial stamps, subject to legislation by the Indian Legislature, as regards amount of Court-Fees levied in relation to suits and proceedings in the High Courts under their Original Jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is obvious. Now, an action in a civil Court in respect of any matter may invite the consideration of more than one law and several laws would be involved. A single suit relating to Immovable property may necessitate the consideration of the Succession Act, the Transfer of Property Act, the Contract Act, the Stamp Act, Registration Act, Evidence Act, and various other laws. If the Legislature fixes a fee in respect of a Court action with reference to every law it makes, it will lead to utter confusion. Fees will have to be calculated and levied under the several Acts, and it may not be apparent when the suit is instituted as to what laws would come up for consideration in the action. Frequently new legal problems become apparent only during the course of the trial or at the stage of arguments, and quite often at the appellate stage. By separating fees taken in Courts from the general power for levying fees in respect of matters in any list, and providing for a single head of legislation for fees in Courts, confusion and practical difficulty in the matter of levy and collection of Court-fees are avoided. By investing the power under one head, the method of levying1 fee for Court act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther fees. This feature, it is stated, makes it a tax, though called a fee. The question for consideration is whether it is an essential and necessary element of a fee properly so called that it should be credited or capable being credited to a separate fund and should not fall into the Consolidated Fund. It may be convenient to read here Article 266 of the Constitution: Article 266(1) : Subject to the provisions of Article 267 and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled the Consolidated Fund of India , and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled the Consolidated Fund of the State. (2) All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mere fact that it goes into the consolidated fund would not take away its character as a fee, if otherwise it is a fee. In Hingir-Rampur Coal Co. v.State of Orissa [1961]2SCR537 , this aspect noticed by Mukherjea, J., (as he then was) in the above case is referred to. 31. In State of Orissa v.Chakobhai Chelahhai Co. [1961]1SCR719 , already referred to, the fees levied under Rule 59 of the Orissa Sales Tax Rules, 1947, were challenged as an illegal levy, and a direction for refund of the fees paid was prayed for. The rule in question enabled the levy of a fee of 5 per cent, of the amount in dispute calculated to the nearest rupee subject to a maximum of ₹ 100 and a minimum of Re. 1 on a memorandum of appeal against order of assessment or penalty or both, or on application for revision or review of such order. The levy under consideration was under Item 54 of List II of the Government of India Act, 1935. The High Court had, struck down the levy as illegal, and the Supreme Court, while agreeing with the High Court that the assessing authorities were not Courts, held that it did not necessarily follow that the fees imposed were illegal. It was observed that the legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Subba Rao, J., (as he then was), observed (at page 1125): The segregation of the Fund, therefore, could not have been a decisive factor for determining the nature of the levy. Of course, the matter was being considered from the other angle, namely, whether the mere fact of the segregation of the fund from the Consolidated Fund would make the levy not a tax for the principle would be the same, and on this aspect of the discussion we do not find any different opinion expressed by the majority of the Court. 33. It must be noticed that in every one of the cases before the Supreme Court, wherever their Lordships applied the test of merger of the collection, in the general revenues of the State, they referred to its consolidation with the general revenues of the State to be spent for general public purposes. No doubt, when the moneys pass into the Consolidated Fund their identity would be lost. But there can ,be no difficulty in the State earmarking the collections for any particular purpose or services rendered by the State. The following observation of Latham, C.J., in what is known as the Uniform Tax Case (1942) 65 Com. L.R. 373, is appropriate in this context; All tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owners of timber land there shall be payable and paid to the Crown on the first day of April in each year an annual tax at the rate of six cents far each acre. These payments are to be placed to the credit of a fund in the Treasury to be known as the forest protection fund and are made recoverable by action at the suit of the Crown. An annual sum of $1,650,000 is, to be added out of the consolidated revenue fund. Advances may be made out of the consolidated revenue fund to meet the charges incurred before the full collection of tax or to cover deficiencies. In the case of a deficiency or a surplus there is power to increase or decrease the levy as the case may be. The forest protection fund is applicable for a variety of purposes connected with the protection of forest lands, including the maintenance and equipment of fire-prevention and protection force, the construction of trails, look-out stations, etc., and the payment of expenditure incurred by any person in fighting fires. The Legislature has thus thought it proper to divide the expense of what is a public service of the greatest importance to the Province as a whole between the general body of tax-payers and those individual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interested individuals, and the second that the fund raised did not fall into the general mass of the proceeds of taxation but was applicable for a special and limited purpose. It was conceded that these considerations were relevant but the Privy Council thought that the weight to be attached to them should not be exaggerated. In appreciating the weight of the said relevant circumstances the Privy Council was impressed by the fact that the lands in question formed an important part of the national wealth of the Province and their proper administration, including in particular protection against fire, is matter of high public concern as well as one of particular interest to individuals. In other words, the effect of the impugned provision was that the expenses of what Was the public service of the greatest importance for the province as a whole had been divided between the general body of taxpayers and those individuals who had a special interest in having their property protected. It would thus appear that this decision proceeded on the basis that what was claimed to be a special service to the lands in question was in reality an item in public service itself, and so the elemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (14) of Section 92 of the British North America Act, which dealt with the exclusive powers of the provincial legislatures. Sub-section (14) runs thus: The administration of justice in the province, including the constitution, maintenance, and organisation of provincial Courts, and including the procedure in. civil matters in the Courts. It was observed (at page 144): Now it is not necessary for their Lordships to determine whether, if a special fund had been created by a provincial Act for the maintenance of the administration of justice in the provincial Courts, raised for that purpose, appropriated to that purpose, and not available as general revenue for general provincial purposes, in that case the limitation to direct taxation would still have been applicable That may be an important question which will be considered in any case in which it may arise; but it does not arise in this case. This Act does not relate to the administration of justice in the province; it does not provide in any way, directly or indirectly, for the maintenance of the provincial Courts; it does not purport to be made under that power, or for the performance of that duty. The subject of ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , be supported on the ground accepted by Martin, C.J., in his judgment on the reference, viz., that they are fees for services rendered by the province or by its authorised instrumentalities under the powers given by Section 92 (13) and (16). The above observations are not of general applicability arid have to be related to the provincial heads of legislation under Section 92 of the British North America. Act. Under Section 92(9) the provinces may legislate in relation to shop, saloon, tavern, auctioneer and other licences in order to the raising of a revenue for provincial, local or municipal purposes. The head of legislation authorises legislation for provincial revenues in relation to licences also. The problem that had arisen in Canada was (i) whether the phrase 'other licences' had to be read ejusdem generis with the preceding enumeration; (ii) whether the revenue raising provisions of licensing legislation should conform to the standards of direct taxation; and (iii) whether the province could license for regulatory rather than, of for regulatory as well as, revenue purposes. It is now established that the ejusdern generis rule does not apply to 'other licenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal to correct any error as to this, only where the first Court decided to the detriment of the revenue. The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State, but - to obstruct the plaintiff; he does not contend that the Court wrongly decided to the detriment of the revenue, but that it dealt with the case without jurisdiction. Their Lordships of the Judicial Committee were, in that case, not on the question of any distinction between a fee and tax. The defendant in that case objected to the jurisdiction of the Court in which the suit was instituted. It was his case that it was not properly brought in the Court of the First Class Subordinate Judge The objection was not taken in the written statement or at the settlement of issues or in the defendant's appeal to the District Judge or in the High Court. The defendant sought to question the jurisdiction of the Court by reference to the court-fee which had been paid on the plaint, and the observations of the Privy Council were in that context. It must further be noticed that the word 'revenue' is colourless in its import and all receipts from whatever sources ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He said (at page 286): Now what I wish to say in the first place is that the object of these provisions, as indeed of the whole Act, is to lay down rules for the collection of one form of taxation, and this I regard to be the scope of the enactment, though it contains no preamble at all.... It cannot be denied that, in one sense, fees are a form of taxation. 45. In Balkaran Rai's case ILR (1890) All. 129, the learned Judge said (at page 164): My difficulty further arose from the circumstance that I felt, in the absence of a preamble in this Court Fees Act, whether it was intended to regulate questions of procedure or to regulate the method of the collection of revenue, that is to say, fiscal questions for the purposes of the obtainment of money from the taxpayer in order to achieve such results as the State had in view to carry on the administration of the country. The learned Judge lower down refers to these levies as 'law taxes' and would follow the views of Jeremy Bentham that the more stringent they are, the less do they achieve their aim, for they are stringent not in the interests of justice, but make the administration of justice difficult and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the time being to all clerks and officers of the High Court under Section 3 of the Court Fees Act cannot be covered by those words of the High Court's Charter Act. It has always been maintained that the power under which fees are levied on the Original Side of the High Court was derived from the general powers to issue general rules for regulating the practice and procedure of the Courts. It is argued, and I think it is rightly argued. That the power to make Regulations for procedure necessarily includes imposition of fees and the collection of them, and the Court can collect the fees only through its proper officers. The lines emphasised by us clearly show that the imposition on suitors on the Original Side of the High Court is fees under the power to make regulations for procedure. This view was affirmed by the Division Bench, of this Court. Subba Rao, J. (as he then was) sitting with Ramaswami, J. in Seshadri v. Province of Madras I.L.R. (1954) Mad. 543 : (1954) 1 M.L.J. 206, already cited. The learned Judges therein remarked (at page 209): The power of the High Court to prescribe Court-fees in regard to proceedings in the High Court was subject to judicial scruti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Court-fees under the Court Fees Act. Though it may be said that Court-fees are charged from parties who come to Court it is still true that the Court Fees Act, generally speaking, is a measure for raising revenue for the State. Then there are fees strictly so called, which are not meant for raising revenue, but for meeting the expenses of the departments of the Government created for regulating professions, trades, callings and employments from which licence fees are levied. The question in that case was the validity of a licence fee levied by the Rajasthan State under the Factories Act, whether it was fees strictly so called and had the authority of law, or it was a tax. Under the rules framed under the Factories Act certain fees were charged on factories according to the horse-power installed and the number of persons employed in the factory during the year on a sliding scale. Pointing out the distinction between a fee and tax, that a fee levied is not meant to augment the general revenue of the State and that it is fixed generally at such a level as to meet the expenses of the services rendered by the State in connection with matters for which the fee is levied, the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengal Regulation XXXVIII of 1795 contained the following Preamble: No expense attending the institution of suits in the first instance; and the ultimate expense, being moderate and limited, whatever length of time the suit may be depending; and no fees whatever being charged on the exhibits and papers filed in the Courts, nor on petitions presented to the Courts not immediately forming part of the proceedings in any suit under trial, many groundless and litigious suits and complaints have been instituted against individuals, and the trials of others have been protracted, by the filing of superfluous exhibits, or summoning witnesses whose testimony was not necessary to the development of the merits of the case. The business in many of the Courts of Judicature, has in consequence increased so as to prevent the Judges determining the causes and complaints filed, with that expedition which is essential for deterring individuals from instituting vexatious claims, or refusing to satisfy just demands, and for giving full effect to the principles of the Regulation. The establishing of fees on the institution and trial of suits, and on petitions presented to the Courts, being considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of putting a stop to this abuse of the ready means now afforded to individuals of availing themselves of the exercise of the laws, without obstructing the bringing forward of just claims, the following rules have been enacted. 57. While on this aspect of the matter, it is interesting to refer to a return of salaries and fees drawn in the Supreme Court from the Master downwards, inclusive of Interpreters and the Official Assignee in 1858 found at page 22 in the Letters of Strange, J. of the Sudr Udalut, to the Government of Fort St. George on Judicial Reforms (i860). The total salaries drawn for the year 1858 was ₹ 48,475-5-8. The fee realised by them was ₹ 84,929-0-9. The salary of the Chief Justice was ₹ 60,000 and of the puisne Judge ₹ 50,000, the total expenditure of the Supreme Court amounting to ₹ 1,58,475-5-8. It is stated in the report that the charge for salaries fell upon the Government, and the fees were paid by the suitors who were otherwise largely taxed. It would be apparent from the above return that the State was not realising the entire expenditure of the administration of the Supreme Court from the suitors. The Fifth Report looks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qual benefit. Lastly, that for the future there may be no confusion between stamp revenue proper and the revenue derived from what have heretofore been termed 'judicial stamps' the proceeds of the proposed enactment are to be designated Court fees. 58. Clearly, the object and reason for the levy of Court-fees herein stated appear to be the maintenance of the Courts from whose action the suitors derive benefit. This-Act of 1870 with certain amendments introduced in this State in 1922 was in force here till it was repealed by the Madras Court-fees and Suits Valuation Act of 1955. The necessity for the passing of the Madras Amendment Act (V of 1922) to the Court Fees Act, 1870, is stated thus in the Statement of Objects and Reasons published in the Fort St. George Gazette (Part IV), on the 7th February, 1922: To meet the increased cost of administration it had become necessary to provide additional revenue. The scale of Court-fees for this Presidency was fixed in 1870 by the Court Fees Act, and experience had shown that in regard, to various classes of documents to which it refers, the amount payable as Court-fee is not commensurate with their character and importance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es whether the revenues from Courts were intended to meet the general expenditure of the State or just to cover the cost of administration of the judicial department. The report of Sir Thomas Strange shows that the State had been meeting salaries of the Judges. The Statement of Objects and Reasons for the Madras Amendment of 1922 refers only to the need for further finance for the cost of administration, and the object of the current Court Fees Act is to rationalize the imposition of Court-fees. Mahmood, J., no doubt remarked that the preamble had been deliberately omitted in the 1870 Act to cover the fact that the State was taxing the people. But then, whether it was a fee or tax, the levy could not be questioned in a Court of law. Unless there is something else sufficiently weighty to take the view that fees taken in Court's are not fees for services, but are intended to add to the general revenues of the State, regardless of the limited requirements for the administration of justice, neither the legislative history of the levy nor the judicial pronouncements as to the character of the levy compel us to hoi d that fees levied in Courts are taxation and their reasonableness is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntirely self-supporting. . (Vide-Holdsworth's History of English law, Vol. 1, Seventh Edition, page 255). The principle accepted in England in the matter of levy of Court-fees appears to be that the salaries and pensions of Judges should be paid by the State out of public funds, it being accepted that it is the obligation of the State to provide the machinery for the dispensation of justice in all its Courts-civil, criminal and revenue-and that only the other expenses of the administration of justice should be borne by the litigants. In the Second Interim Report of the Committee of Supreme Court Practice and Procedure (England) at page 43 is found the following quotation from Mr. Justice Macnaughten: The Supreme Court is not merely engaged in the work of dispensing justice to the private suitors who resort there; it administers public justice not only in criminal cases, but also in civil matters, such as proceedings on the Crown side of the King's Bench. For the cost of administration of justice where the public itself is directly concerned, the State ought to, it is suggested, provide the necessary funds since there can be no reason why the private suitors should do so. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, and, subject to the provisions of any such letters patent, all such jurisdiction, powers and authority as are vested in those Courts respectively at the commencement of this Act. Section 107 : Each of the High Courts has superintendence over all Courts for the time being subject to its appellate jurisdiction, and may do any of the following things- * * * (e) settle tables of fees to be allowed to the Sheriff, Attorneys, and all clerks and officers of Courts. As pointed out in Seshadri v. Province of Madras AIR1954Mad643 : A combined reading of these provisions (the above along with Section 15, of the Charter Act, and Article 37 of the amended Letters Patent of the High Court) enable the High Courts to make rules for regulating the practice of the Court and also to fix Court-fees in respect of proceedings in the High Court. It is true, as contended by the plaintiff, the terminology used in Section 107(e) is not appropriate to the power to impose Court-fees, alleged to be conferred on the High Court. But the words have a historic origin. Originally the officers were paid from the fees collected and though that practice was given up, the same words, were continued t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d but as indicating the materials which the Government of the Province had before them before promoting in the Legislature the statute now impugned. 67. In M.S.U. Mills Ltd. v. State of Rajasthan, 181, already cited, where there is a passing observation that Court-fees are really taxes, as an illustration of fees, which are taxes, the test for a levy to be a fee is thus stated: If a levy is a fee strictly so called, it is subject to the limitations, which we have mentioned above, namely, that it should not be levied for purposes of augmenting general revenues, and should be for some service rendered by the State and should be preceded by permission sought by the subject. In the light of the history of the levy and the legislative practice with regard to the same, and in the absence of any data, or figures that in the past Court-fees were regarded as a source of general revenues of the State and were levied with a view to raise more than necessary funds for the expenditure incurred in the administration of justice to be available for the general purposes of the State, the first test, we would say, of Wanchoo, C.J., (as he then was) is satisfied. There can be no doubt that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutional provision in that regard, the learned Judges took the view that the fee taken in Courts under Entry 3 of List II should not be interpreted to refer to such fees which must be credited to a separate fund and not to the general fund of India or the State. They are of the view that it is an essential characteristic of the fee considered by the Supreme Court in the cases mentioned above that it shall be set apart and not merged in the general revenue of the State. Therefore, in their view there exists another class of imposition also called a fee in the Constitution which differs from the type of fee falling under Entry 66 of List II. One of the learned Judges (Dayal, J.) observed (at page 466): There can be no doubt that Court-fee is charged for services rendered. It is the litigant who goes to Court for getting help in enforcing his rights. The Court renders him service by giving him redress when, he succeeds in establishing the wrong done to him. There can be no monetary measure of the service rendered. The first element essential to make a payment a fee is present. The second element of the fee not going to a separate fund does not exist in the case of Court-fee collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be appropriated to a separate fund earmarked to meet the expenses of the services, had never been true of the Court-fees at any time and is also not true of the Court-fees levied after the Constitution. We agree, therefore, with the learned Advocate-General that the Court-fee does not fall in the category of fees with which their Lordships of the Supreme Court were dealing.... The learned Advocate-General, in our opinion, is right in saying that the levy of Court-fee for raising the general revenue has been, authorised by the relevant Entries in the Legislative Lists under the Constitution and the challenge therefore to the validity of such fees on the ground that they are not earmarked as a separate fund for the purposes of meeting the expenses of the services rendered cannot be sustained. 71. The question in the form now before us was mooted in the Andhra Pradesh High Court in Satyanarayanamurti v. Income Tax Appellate Tribunal (1957) 1 AW.R. 360 : A.I.R. 1957 A.P. 123, but no definite views were expressed as there were no details to sustain the arguments. Subba Rao, C.J., (as he then was of that Court) observed: The learned Counsel then raised an important question which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expression to have its accredited significance but empowered the States to tax suitors for the general purpose of the State. The suitor approaches the Court for justice and enforcement of the laws the Governments have made. Declaration of rights and enactment of laws are of little avail unless there is remedy available for the citizen to have the benefit of the same. The substantial law which defines our rights and duties is, of course, important to all of us, but unless the adjective law of procedure is a working machine constantly translating these obligations in terms of Court orders and actual execution, the substantive law might just as well not exist. (Quoted by Paton in his text-book of Jurisprudence, Third Edition, at page 538). 73. In Balkaran Rai's case ILR (1890) All. 129, Mahmood, J., remarked on the absence of a preamble to the Court Fees Act and doubted whether it was intended to regulate questions, of procedure or to regulate the method of the collection of revenue, that is to say fiscal questions for the purposes of the obtainment of money from the tax-payer in order to achieve such results as the State had in view to carry on the administration, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance, the levy is not to raise revenues also for the general purposes of the State, the mere absence of uniformity or the fact that it has no direct relation to the actual services rendered by the authority to each individual who obtains the benefit of the service, or that some of the contributories do not obtain the same degree of service as others may, will not change the essential character of the levy. Nor can the feature that it is not separately funded be decisive in the matter. However, when not funded, reasonable correlation must be established, and it must lo6 shown that the receipts are meant for the services. When a levy is challenged as unreasonable and beyond the legislative power which authorised only a fee, the decision will have ultimately to depend upon the particular facts of the case. Certain general tests have been formulated to decide whether a fee is reasonable in the circumstances and does not exceed the bounds of a fee. In Hingir Rdmpur Coal Co. v. [1961] 2 SCR 537 , referred to supra it is said at page 468: The extent of the levy authorised would always depend upon the nature of the services intended to be rendered and the financial obligations inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en we must say that as a whole the fees charged by the Corporation must not be very much in excess of what the duties cast upon them and their staff in connection with the licences cost them. There is the cost of issuing the licenses ;there is the cost of inspecting the premises to see whether they are suitable for the purpose proposed; and there is the subsequent cost of inspecting the premises to see that they are being used properly and that the conditions and restrictions imposed by the Commissioner are observed. But, roughly speaking, if the fees are charged at so high a rate that as a whole they bring in very much more than the cost of these operations to the Corporation, then I think we can rightly say that they are unreasonable. There is another principle. Although it is almost impossible for the Corporation itself to ascertain, when they are issuing a number of licences to persons engaged in different trades and occupations, exactly what is the cost of any particular licence or of licences for persons engaged in particular trades or occupations-and certainly we could not attempt anything of that sort-yet, surely it would be unreasonable if they so fixed the fees that the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 to ₹ 100 per expeller in an oil mill under the Madras Manure Dealers Licensing Order, 1949. This Court examined the materials placed on record to see if there was any justification for the sudden enhancement of the licence fee from ₹ 10 to ₹ 100 per expeller. Finding that the amount collected was disproportionately high in comparison with the expenditure incurred by the Government, even according to their statement, the fee was struck down. 78. In Pazundaung Bazaar Co. Ltd. v. Municipal Corporation of the City of Rangoon (1931) L.R. 58 IndAp 313 : (1931) 61 M.L.J. 740 : I.L.R. 9 Rang. 440 the Judicial Committee had to consider the licence fee levied by the Corporation of the City of Rangoon, following the expression of the views of the High Court as to the scope of the power in Municipal Corporation of Rangoon v. Sooratee Bara Bazaar Co. Ltd. ILR (1927) Rang. 212. It is instructive to examine the manner of levy of the fee in that case which was upheld by the Judicial Committee. Under the Municipal Act in question no one shall keep open a private market without a licence from the Corporation for which the Corporation may charge a fee. In fixing the fee, what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the figures in relation to the impugned levy which have been made available to us. Sri V.K. Thiruvenkatachari, learned Counsel for the suitors, emphasises that this is not a case of a new levy, but a case of enhancement, and that being the case, the first question for consideration is whether at all there has been such an increase of expenditure by the State in the administration of justice as warranted the exorbitant levies that have been imposed. The averment in the affidavit of the suitor in W.P. No. 1743 of 1964 is: There was no justification for the increase of Court-fees in 1955 at all on the basis of civil litigants being made to pay fees covering the expenditure on civil litigation. While a fee which cannot be separately allocated to the service of each item, may be fixed on estimates at the inception, whenever an increase is contemplated, it is for the authority to justify by facts and figures such increase by showing that the actual expenditure at the time exceeds the fee income. The petitioner is advised and states that judged by this test, the increases of 1955, were without any legal or factual justification. To repeat in this context, it is urged for the suitors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exaction the fact that the plaintiff could recover it from the defendant will not validate it. On no principle could the defendant be called upon to meet a demand which is invalid and further it is not always that recovery is possible from the defeated defendant. 82. Further figures have been placed before us by the Deputy Secretary to Government in the Finance Department (Sri Shivakumar) in a supplemental counter-affidavit. We shall first examine the figures furnished in the affidavit of Sri Kelu Erady, Joint Secretary to Government. The figures are, as already stated, the actuals for the years 1954-55. The Court-fees were increased in the year 1955. The total income from all sources in the matter of administration of justice, deducting refunds, is shown as ₹ 122.12 lakhs. Deduction has to be made from this of ₹ 1.63 lakhs, the cost of stamps and charges for the sale of stamps. The net income would come to ₹ 120-49 lakhs. The income includes fines and forfeitures. The cost of administration of justice is shown as ₹ 124.94 lakhs. It is, therefore, stated that the expenditure on the administration of justice was higher during the year than the fees realise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Act, there is no whisper about enhancing the levy with a view to meet increased expenditure. As for the propriety of such references, learned Counsel drew our attention to Letang v. Cooper L.R. (1965) 1 Q.B. 232 : (1964) 3 W.L.R. 373 : (1964) 2 All. E.R. 929, wherein Lord Denning has stated (at page 933): It is legitimate to look at the report of such a committee, so as to see what was the mischief at which the Act was directed. You can get the facts and surrounding circumstances from the report, so as to see the background against which the legislation was enacted. While examining the effect of the legislation, the Court may take into account any public general knowledge of which the Court would take judicial notice, and may in a proper case require to be informed by evidence as to what the effect of the legislation will be - see Attorney-General for Alberta v. Attorney-General for Canada (1939) LR A.C. 117. Examining the financial implications of certain recommendations made as regards the ad valorem levy (reduction from 111/4 per cent, to 71/2 per cent, for claims) which do not exceed ₹ 1,000, and a flat rate of 6 per cent, for claims of ₹ 10,000 and above re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the details of the receipts and expenditure set out in the original counter-affidavit for the State, that of the Joint Secretary (Sri Kelu Erady), and analyse the same: 89. With reference to these figures the argument before us on behalf of the civil suitors may be thus summed up. On the receipts side, the revenue from Court fee stamps in the administration of criminal justice must be negligible. The actual sources of the receipts under the head Miscellaneous fees and fines are not clear. To some extent it may have relation to civil proceedings also. It is quite likely that the head 'General fees, fines and forfeitures' relate to other than Civil Courts and in the context, the head 'fines and penalties' lakhs Order 11 may be a receipt on the Civil Side. Broadly looking at the matter and leaving out these receipts as not from Civil Courts, they total ₹ 42.04 lakhs, ₹ 80.08 lakhs may roughly be taken as receipts from the administration of civil justice. A further deduction of ₹ 1.63 lakhs has to be made with reference to the cost of stamps and the charges for the sale of stamps, and we are left with ₹ 78.45 lakhs. On the expenditu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... civil litigant. 92. Sri V.K. Thiruvenkatachari, learned Counsel, questions the very correctness of the figures in the supplemental counter affidavit filed by Sri Shivakumar, Deputy Secretary to Government, on behalf of the State as worked up to show a different picture. It is stated that the figures given require drastic scrutiny and that the statements annexed do not give sufficient details to check the same. In the statements annexed to the supplemental affidavit, on the expenditure side, fresh items are introduced, to mention some, share of cost of Secretariat, Treasury and other general establishments, Executive Magistrates, interest on capital outlay and original works debited to Revenue account. The figures are given only for a few years, and counsel for the suitors charges that here is a desperate effort to show a deficit. But even these new figures as ultimately extracted in Statement III show a deficit only for 1954-55, and right through thereafter there is substantial surplus. A deficit of ₹ 27 lakhs is found for 1954-55 but in the subsequent periods for which figures are given, 1956-57, 1963-64, 1964-65, the profits are ₹ 11 lakhs, ₹ 10 lakhs and &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for this is stated to be that these officers do considerable amount of judicial work in relation to their responsibility under the Cultivating Tenants Protection Act, Fair Rent Act and numerous other statutes. But no account is taken of the realisations from Court-fees under these Acts, the Court-fee payable being ₹ 2 and below. Receipts from the sale of judicial stamps of the denomination of ₹ 2 and below have been taken to relate to petitions presented before public officers, criminal Courts, etc., and left out of account in determining the revenue. On this account a deduction of 15 per cent, of the revenue for Court-fee stamps is made. It is admitted that a rough and ready method has been adopted for the purpose. As the figures for the sale of judicial stamps in Chingleput and Madras districts in a full year alone were readily available, the percentage of 15.5 attributed to stamps of the value of ₹ 2 and below, having regard to the sale of judicial stamps in those districts, has been taken as the basis. Naturally, the deduction is challenged. It is well known that thousands of applications are filed annually in the High Court and the Court-fee payable thereon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine. Originally, when the claim exceeded ₹ 5,000, the total of fees tapered,, and over ₹ 50,000 there was a nominal levy. On the Original Side prior to 1949 there was a fixed institution fee, and then a flat rate of ₹ 5 for every ₹ 1,000. Further fees were collected as hearing fee, having relation to the time taken by the High Court in adjudging causes. It may be difficult to follow this system, particularly in the moffussil and, at any rate, since 1949, in the Original Jurisdiction also the Court Fees Act has been adopted. 96. It is pointed out for the suitors that the effect of the new levy is to bring about a fall in the number of suits instituted in the Original Side of the High Court, and that this will be apparent from the statistics of the institution of suits in the superior-Courts on claims of higher values. It cannot be seriously denied that this heavy levy will have a regressive effect on suitors who have to make a claim for large amounts. There can be no two views that cheapening the costs of judicial process and its expedition are essential if the judicial wing of the State is to continue as the palladium of the weak and timid or the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed in the Court Fees Act of 1870 taken from the report of the Law Commission (at page 491-492) has been furnished. Under the Court Fees Act of 1870, on a suit of the value of ₹ 50,000, the court-fee payable was ₹ 1,175. The court-fee payable in this State under the new Act is ₹ 3,750. The figures in none of the other States come anywhere near this, the nearest being Punjab, where the fee payable on a claim for ₹ 50,000 is ₹ 2,827-8-0. It is stated that the Court Fees Act has recently been amended in Uttar Pradesh on a scale similar to that now prevalent here. A maximum has always been recognised in most of the States. Under the Central Act of 1870, the maximum leviable was ₹ 3,000. On a claim of the value of one lakh of rupees, the fee leviable here now is ₹ 7,500. Under the Central Act of 1870, it was ₹ 1,425. In Andhra Pradesh it is ₹ 3,427-8-0. In Bombay it is ₹ 2,406-4-0. In Punjab it is ₹ 3,315. And in no State does it come anywhere near the court-fee levied here. The Taxation Enquiry Commission's Report of the year 1953-54, Vol. 3 (at page 107) also gives some figures of the receipts from court-fees and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1922 no additional fee was payable on the entry of caveat. The fee levied is in addition to a levy of 2 per cent, upto ₹ 5,000 and 3 per cent, on the excess over ₹ 5,000 as probate duty under. Article 6 of Schedule I and Section 56 of Act XIV of 1955. Learned Counsel submits that in a probate action the title to the property that may be the subject of the will does not come up for determination, it not being the province of the Court in a testamentary suit to go into questions of title with reference to the property disposed of or the validity of the disposition. The probate concluded only the truth and validity and the contents of the will. The representative title of the executor was perfected. Suits relating to immovable property, particularly lands, generally involve greater labour and take larger time of the Court than simple money claims. But these are details in the matter of distributing the burden. We are concerned only with the reasonableness of the levy now challenged. Court-fees, to a certain extent, may properly be in proportion to the claim. The value of the claim has been made a basis of fixing the form for adjudication. The privilege of a first appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 10,000. Out of 12,905 suits in the city, in only 297 suits the claim exceeded ₹ 10,000. Between ₹ 5,000 and ₹ 10,000 the number of suits were 314 for the city and 1,424 for the entire State. In 1954, out of 11,998 suits instituted in the city, only 303 suits the claim exceeded ₹ 10,000. For the entire State, out of 1,01,335 suits, only 911 exceeded ₹ 10,000 in value. In 1955, out of a total of 2,22,398 suits for the State, only 970 suits exceeded ₹ 10,000 in value. In the city out of 12,348, 235 suits alone exceeded ₹ 10,000 in value. In 1956, out of a total of 1,87,758 suits only 908 suits exceeded ₹ 10,000 in their value. In the city out of a total of 11,682 only 260 suits exceeded ₹ 10,000. In 1957 in all 1,26,028 suits were instituted in the State and out of this only 589 exceeded ₹ 10,000 in value. In the years 1959, 1960 and 1961, there has been some increase in suits exceeding ₹ 10,000 in value, 903, 1,055 and 1,183 respectively. This increase is marked in the Sub-Courts outside the city. Suits exceeding ₹ 10,000 in value filed in the High Court in the respective years are 50,145 and 66 only. We do no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale of levy should not be enhanced. They may hot, having due regard to the increased cost of all services. Here it is not just any resulting surplus only that invalidates the levy. The surplus may be utilised in furtherance of the object of the levy-better facilities for speedy and efficient rendering of justice in Courts-amenities may be given to Suitors which,, it is common knowledge, is woefully lacking in our Courts. A continued surplus, may require a reconsideration of the scale of fees. We have not examined the question from that angle. The problem is in the distribution of the levy in a practical and reasonable manner so as to fall fairly equitably on all suitors, that no particular class or section of them is disproportionately hit and made to bear more than their fair share of the expenditure on the administration of justice, on consider rations not germane in the context of the levy authorised by law. There can be no exact correlation, but the present levy or its incidence on suits with large claims-cannot but be manifestly unreasonable. As it is, as the value of the claim goes up, the levy becomes more and more unrelated to the object of the levy. A few suitors would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Valuation Act (XIV of 1955), are invalid and ultra vires as an impost in excess of the powers conferred on the State Legislature and the High Court for levying fees on proceedings in the exercise of its Original Jurisdiction. Article 1 of Schedule I of the Madras Court Fees and Suits Valuation Act, (XIV of 1955) and Rule 1 of Order 2 of the High Court Fees Rules, 1956 to the extent it incorporates the said article, in their application to the High Court in its Original Jurisdiction are therefore struck down. 103. It is unnecessary for us to examine in further detail the validity or the reasonableness of the other provisions of the Madras Court Fees and Suits Valuation Act of 1955. It was contended for the suitors that the effect of our striking down the applicability of Article 1, Schedule I of the Court Fees Act of 1955, would be, so far as the High Court is concerned, to revive the Court Fees Act of 1870, as amended in Madras in 1922 which stood repealed by the new Act. Learned Counsel in this connection referred us to a passage from Cooley's Constitutional Limitations, Eighth Edition, Vol. 1, at page 378, where it is stated: But other cases hold that such repealing c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended before us on either side, that the result of striking down Article I of Schedule I in its application to the High Court will necessitate the declaration of the invalidity of the entire Court Fees Act, and so we have refrained from examining the position. 104. There is a prayer in the writ petitions for a direction to the Registry of the Court to levy fees in accordance with the High Court Fees Rules of 1933, and the Court Fees Act of 1870. We have declared the invalidity of the levy now in force. It is not for the Court to declare what the rules should be. In the matters now before us, to the extent there is prayer for an order directing levy of fees in accordance with the High Court Fees Rules of 1933 and the Court Fees Act of 1870 as amended and in force immediately prior to the enactment of Madras Act XIV of 1955, there can be no relief. 105. In Application Nos. 2445 of 1964 in C.S. Nos. 43 of 1961 and 2486 of 1964 in C.S. No. 7 of 1959, there are prayers for refund of the court-fees paid. The petitioners therein restrict their claim for refund to the excess over the rates specified in the Court Fees Act of 1870, as amended by the Madras State Court Fees Act V of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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