JYOTI NIKUL JARIWALA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These petitions under Article 226 of the Constitution assails the Constitutional vires of Item 10 of Schedule I being an appendage to the Bombay Court Fees Act, 1959.

(2.) To understand the question that arises for determination in these petitions, it will suffice if I narrate the events leading to the institution of the first petition. Petitioners in that petition claim to be the executor/executrix/trustees of the Last Will and Testament dated 5th March, 1985 of Harihar Jethalal Jariwala, better known by his name on the silver screen as Sanjeev Kumar. Sanjeev Kumar died at Bombay on November 6, 1985 and, under the Will aforementioned, petitioners were appointed as executors of the estate left by him. Petitioner 1 has instituted a petition for Probate to the estate of said Sanjeev Kumar and that petition has the consent of petitioner 2 and the other executors. After the petition had been lodged, the office of the Original Side of this Court, calculated the amount payable vide the clause mentioned in the first paragraph inasmuch as section 29 of the aforementioned Act, makes it a condition precedent that until the fee mentioned in Clause 10 of the First Schedule is paid, no order entitling the petitioner to the grant of Probate is to be made, upon his/her application for such a grant. The computation made by the office entails a burden of Rs. 6,15,814.50 ps. In the second petition the amount computed as payable is Rs. 1,94,538.75 ps. Petitioners contend that the Act is a measure to regulate "fees taken in courts and public offices and fees taken in respect of certain matters in the State". It is a charge taken in return for services rendered. Therefore, the charge should be commensurate to the services given in exchange therefore. It is well-known that proceedings for obtaining the Probate or Letters of Administration are mostly not contested. In any case, the contest is in no way comparable to the intensity and complexity of contests arising in other judicial proceedings. In the matter of civil rights, though the Court fee leviable is on an ad valorem basis, the maximum leviable is Rs. 15,000/-. Moreover, in suits the percentage of fees payable comes tapering down. As against this, the impugned clause prescribes an ever increasing percent in the fee payable for obtaining probates---the percentage ranging from 2 to 83/4. There is no justification for the discrimination between petitions for obtaining probate and letters of administration on the one hand and the others ranging from claims, petitions, applications and appeals on the other. The discrimination embodied in the impugned clause is violative of Article 14 of the Constitution. Respondent 1 has contested the petitions by an affidavit-in-reply of the Superintendent of Stamps from the General Stamp Office. He seeks to justify the Statutory provision, viz., Clause 10 of Schedule 1. Principles underlying suits on the one hand and proceedings to obtain probate and letters of administration on the other, are said to be basically different. The difference lies in the relief that the litigants derive from the two different types of litigation. Therefore, because there is an upper limit to the fees payable in Civil Suits, cannot be a ground to complain of the absence of a similar other limit in case of persons wanting probates and letters of administration. It was not correct to say that the Act was a measure prescribing fees and not a tax. The mere fact that a fee was payable, did not mean that the State had to establish an exact cor-relationship, between the fee chargeable and the services rendered. The basis on which the fee had been charged was a prerogative of the legislature and it was not open to scrutiny unless shown to be arbitrary and violative of the Constitution. The Act was brought into force in the year 1959. Despite a gradual increase in the expenditure on administration of justice, the fees charged by way of Court fees, had to remained stagnant. As a result the State had to meet additional expenditure on the administration of justice from the general revenue, which affected its ways and means position as also the developmental activities of the State. The impugned clause was within the legislative powers of the State. For all these reasons, it was submitted that the petitions were without substance and deserved to be dismissed.

(3.) Article 226 of the Constitution demarcates the distribution of legislative powers as between the Parliament and the Legislatures of the States. The impugned clause is part of a State enactment and it would therefore, be necessary to turn to the State List of the VII Schedule of the Constitution. Entry 3 of the said list which is relevant for our purposes enables the State legislature to prescribe fees taken in all courts except the Supreme Court. The Preamble to the Act makes it clear that the same is meant to consolidate and amend the law relating to "fees taken in the courts and public offices and fees taken in respect of certain matters in the State". Section 29 makes it incumbent on a person seeking a Probate or letters of administration to pay the fee mentioned in Clause 10 of the First Schedule before an order entitling the said person to the grant of such a relief can be made. In conformity with the practice prevailing in the Testamentary section of the Office of this Court, the amount payable under the impugned clause was ascertained and the petitioners called upon to make the requisite payment. The first question to which I am going to address myself, is, whether the impost---to use a neutral word---is a fee? The matter has to be decided firstly on the basis what the Act describes is to be and secondly, according to its true character. The question as to what is the meaning of the words fees taken in Court has been considered by the Supreme Court in (Government of Madras v. Zenith Lamps and Electricals Ltd.) A.I.R. 1973 S.C. 724. The Court considered the historical background as also the language used in enactments dealing with recovery of Court fees and observed thus:---