SOMANATHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE two unnumbered Writ Petitions are placed before us on a reference made by K. Balakrishnan Nair, J. to determine the amount of court fee to be paid when more than one petitioner join together and file a single petition. G. Somarajan and 7 others filed a Writ Petition on 26. 5. 2003 before this court under Art. 226 of the Constitution of India remitting a court fee of Rs. 800/ -. A separate direction petition was also filed by them along with the Writ Petition by paying a court fee of Rs. 50/ -. Registry pointed out the deficiency of the court fee. Counsel insisted that separate court fee be not levied from each of petitioners for the direction petition. The Registry then made the following note: "in the direction petition there are 8 petitioners, but only one court fee is paid. CF payable is Rs. 50/- per petitioner". Incidental is the issue which arises for consideration in the Writ Petition filed by Varghese Joseph and 5 others. On a request made by the counsel matter was placed before the court and was heard by K. Balakrishnan nair, J. Counsel brought to the knowledge of the learned judge the noting by the Registry and the ruling made by P. R. Raman, J. in another case. In that case five petitioners joined together filed a stay petition remitting a court fee of Rs. 10/- only. Registry objected and the matter was placed before the Court. The learned judge minuted as follows: "as per Sch. II of the Court Fees and Suits valuation Act as amended by Act 2003, Rs. 100/- per petitioner is the court fee payable in the O. P. filed before the High Court petitioner has already paid court fee as per the said provision. However, in the case of CMP. , item T of schedule II provides for payment of Rs. 10/- (Ten only) for an application or petition to be presented to the High Court and not otherwise specifically provided for. Hence the Fee payable on an application. Otherwise, provided court fee payable is only Rs. 10/ -. Hence there is no deficit of court fee payable on the CMP". Sd/- P. R. Raman, J. " Learned Government Pleader submitted before K. Balakrishnan Nair, J. that the learned Judge P. R. Raman interpreted Schedule II art. 11 (t) of the Kerala Court Fees and Suits Valuation Act, 1959 without referring to S. 6 (3) and (4) and submitted since the petitioners claim reliefs individually each of the petitioners has to pay separate court fee. Learned judge found force in the said submission of the Government Pleader and in view of the conflicting views the matter was referred to a Division Bench for an authoritative pronouncement. Hence both these Writ Petitions are before us along with the direction petitions to determine the requisite court fee to be paid in the direction petitions jointly filed by the petitioners in the Writ petitions filed under Art. 226 of the Constitution of India.

(2.) THE question involved is of considerable importance affecting the litigant public, hence we issued notice to the learned Advocate general as well as the President of the High Court Advocates' Association. We heard Advocate Sri. N. Nagaresh for the Writ Petitioners and the learned government Pleader Sri. K. L. Joseph for the State Government as well as Sri. K. T. Sankaran for the Kerala High Court Advocates' Association.

(3.) WE may first examine when more than one petitioner join in one Writ Petition and file a Single Petition seeking relief in respect of or arising out of the same act or transactions should pay court fee individually or whether they need to pay a consolidated court fee of Rs. 10/-or Rs. 50/- as the case may be. WE are in this case concerned with a Writ petition filed under Art. 226 of the Constitution of India. WE have already indicated that for a Writ Petition the court fee to be paid under 11 (1) (iii)before the High Court is Rs. 100/ -. By the Kerala Court Fees and Suits valuation (Amendment) Act, 2003 it has been specifically stated that for original petition if filed in the High Court, court fee of Rs. 100/- has to be paid per petitioner. Legislature used the expression "per petitioner" to indicate that each of the petitioners should pay Rs. 100/- if an Original petition is filed before the High Court. However, when a petition for arrest or attachment before judgment or for temporary injunction is presented to the High court the Amendment Act, 2003 has stipulated that a court fee of Rs. 50/.- has to be remitted and not per petitioner. The words "per petitioner" are conspicuously absent in Art. 11 (h) as well as in Art. 11 (t) of Schedule II. WE are therefore inclined to take the view that the expression "per petitioner" has been specifically omitted by the legislature from art. 11 (h) (ii) as well as from Art. 11 (t ). WE may in this connection refer to the judgment of Justice V. R. Krishna Iyer in B. N. Sekhara Menon's case. The learned judge has stated as follows: "speaking broadly, court fee is a fetter on the assertion of a right or the seeking of a remedy by a party, although a person who is unable to pay court fee may thereby be deprived of the equal protection of the laws notwithstanding the considerate treatment extended, under O. XXXIII cpc to paupers. The provisions of the law of court fees which are ameliorative in the sense of enabling a party to pay a lesser court fee should be interpreted liberally". If the legislature wanted each of the petitioners to pay separate court fee in an application or a petition when presented to the High court the same would have been indicated in the respective articles of Schedule ii, especially when in the case of an Original Petition filed by more than one petitioner in the High Court it is so provided. In interpreting a fiscal statute like Court Fees Act the Court cannot proceed to make good deficiencies if any. The Court must interpret the statute as it stands and in case of doubt benefit would go to the litigant public. The Apex Court in Controller of Estate duty v. Alladi Kuppuswamy, AIR 1977 SC 2069, Yashwant Rao v. Commissioner of wealth Tax, AIR 1967 SC 135 held that in construing a taxing Act the Court is not justified in straining the language in order to hold a subject liable to tax. The words'per petitioner' might be an omission from Art. 11 (5) or 11 (h), then it is a matter for the legislature to supply the omissions and not for the court. WE therefore hold even if all the petitioners join together and file a petition for direction or stay they need pay only the court fee stipulated and not separately. WE may also examine whether S. 6 (3) and 4 of the Court Fees Act has any impact on Art. 11 (t) or 11 (h) so far as the issue involved in this case. S. 6 deals with multifarious suits. The word 'suit" is a term of art and ordinarily means a proceeding instituted in a civil court by the presentation of a plant, unlike a Writ Petition filed before the High Court under Art. 226 of the Constitution of India. S. 6 (4) would apply to memorandum of appeal, applications, petitions and written statements relating to suits and consequent appeal and therefore not applicable to Writ Petition.