NISHITENDU DHAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution, the petitioner, who is a practising Advocate of the Gauhati High Court, has challenged the notification dated 19.8.92 in so far as it inserts a proviso after second paragraph in Rule 1 of Chapter VA of the Rules of the Gauhati High Court that more than one individual can jointly file a single writ petition if each such individual pays separate Court fees payable on such application.

(2.) The case made out in the writ petition is that under Schedule II of the Court Fees Act, 1870, as amended by the Court Fees (Assam Amendment) Act, 1972 a fixed Court fee of Rs. 50/- is payable on an application or petition presented to the High Court under Article 226 of the Constitution of India. Hence, any rule requiring payment of Court fees of more than Rs. 50/- on a petition presented to the High Court under Article 226 of the Constitution would be ultra vires the said provisions of the Court fees Act. The aforesaid proviso to Rule 1 of Chapter VA of the Rules of the Gauhati High Court sought to be inserted by the impugned notification dated 19.8.92 requiring payment of Court fees of Rs. 50/- on a single petition filed by several individuals in effect would be requiring payment of Court fees of more than Rs. 50/- on a single petition filed under Article 226 of the Constitution and hence ultra vires the aforesaid provisions in Schedule II to the Court Fees Act, 1870 as amended by the Court Fees (Assam Amendment) Act, 1972.

(3.) At the hearing of this petition, Mr. N. Dhar, the petitioner, argued that the power of the High Court under Article 225 of the Constitution to make Rules has been made expressly subject to the provisions of not only the Constitution but also of any law of the appropriate legislature made by virtue of powers conferred on it by the Constitution. According to Mr. Dhar, since under the Constitution the State Legislature of Assam has the power to prescribe Court fee that is payable on a writ petition to be presented in the High Court under Article 226 of the Constitution and since in exercise of the said power conferred by the Constitution, the State Legislature has prescribed a Court fee of Rs. 50/- on a petition to be presented under Article 226 of the Constitution, the High Court, in exercise of its rule making power under Article 225 of the Constitution, cannot make a rule which is contrary to the provisions of such law made by the State Legislature. Mr. Dhar also argued that under Order 1 Rule 1 CPC several persons can be joined in one suit as plaintiffs where any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative, and if such persons brought separate suits, any common question of law or fact would arise in such suit. Since the principles of CPC are also applicable to proceedings under Article 226 of the Constitution, though not in letter but atleast in spirit, a writ petition filed by several persons in certain circumstances cannot be thrown out by the High Court on the ground that Court fee of Rs. 50/- has not been paid in respect of each of several persons filing the writ petition. The impugned proviso in so far as it stipulates that separate Court fee of Rs. 50/- is to be paid in respect of each petitioner joining in a single writ petition is inconsistent with the principles of Order 1 Rule 1 CPC. Mr. Dhar also vehemently argued that iin a writ petition filed before the High Court under Article 226 of the Constitution a common grievance may be made by several petitioners that their fundamental rights have been violated and in such cases, the High Court which is obliged under the Constitution to enforce the fundamental rights, cannot insist on payment of separate Court fees for each person on a joint petition filed by several persons complaining of such violation of their fundamental rights guaranteed under Part III of the Constitution. Mr. Dhar argued that the Apex Court has ruled in several cases that the Court should not be technical and pedantic in its approadh and in certain circumstances entertain also a letter by way of writ petition although no Court fees is paid on such letters treated as writ petitions.