# Shree Shri Ram Das Plaintiff v. M/S Punjab Iron Stores and others

- **Citation:** (2009) 3 ILRA 775
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-01
- **Case number:** Second Appeal No. 284 of 1972
- **Bench:** C.K. Prasad, C. J. R.K. Agrawal, A.P. Sahi, Vikram Nath, Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shree-shri-ram-das-plaintiff-v-m-s-punjab-iron-stores-and-others-41453
- **Pages:** 6

## Headnote

Court fee Act-Section-5-Whether the
provision of Court fee Act enhancing
from time to time is ultravires? held-'No'
reason discussed relying law laid down
by Apex Court.

Held: Para-10 & 19

Rival
submissions
necessitate
examination
of
the
Constitutional
Scheme. Article 245 of the Constitution
of India confers on the Parliament power
to make laws for the whole or any part of
the territory of India and the legislature
of the State for the whole or any part of
the State. Article 246 of the Constitution
gives exclusive power to the Parliament
to make laws with respect to any of the
matters enumerated in List-I (Union
List), whereas the legislature of any
State has exclusive power to make laws
for such State or any part thereof with
respect to any of the matters in List II
(State List) in the VIIth Schedule. Entry
III
of
State
List
gives
the
State
Legislature power to make laws inter alia
in respect of fee taken in all Courts
except the Supreme Court. In view of
aforesaid, there is no difficulty in holding
that the State Legislature has power to
make law in respect of fee taken in all
Courts except the Supreme Court.

Accordingly the answer of the question
formulated for our decision is in the
negative
and
it
is
held
that
the
provisions of the Court Fees Act as
amended from time to time in the State
of Uttar Pradesh is not ultra vires the
State Legislature.
Case law discussed:
AIR 1973 SC 724, AIR 1996 SC 676, JT
2001(2)SC 242

## Text

3 All] Shree Shri Ram Das V. M/s Punjab Iron Stores and another

775
Service Board) Regulation 1985, as
amended
vide
notification
dated
24.3.1993.

10. Besides, the matter is also
covered by the decisions of this Court in
Rakesh Kumar Saxena (supra) and Tek
Chand
(supra).
The
writ
petition,
therefore, lacks merit and is accordingly
dismissed. Interim order, if any, stands
vacated.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.09.2009

BEFORE
THE HON'BLE C.K. PRASAD,C. J.
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE A.P. SAHI, J.
THE HON'BLE VIKRAM NATH, J
THE HON'BLE PANKAJ MITHAL, J

Second Appeal No. 284 of 1972

Shree Shri Ram Das...Plaintiff-Appellant
Versus
M/S Punjab Iron Stores and others

 ...Defendants-Respondents

Counsel for the Appellant:
Sri V.K.S. Chaudhary
Sri Satish Chandra Srivastava
Sri Sanjay Krishna

Counsel for the Respondents:
Sri S.P. Kesarwani
S.C.
ADV. General

Court fee Act-Section-5-Whether the
provision of Court fee Act enhancing
from time to time is ultravires? held-'No'
reason discussed relying law laid down
by Apex Court.

Held: Para-10 & 19

Rival
submissions
necessitate
examination
of
the
Constitutional
Scheme. Article 245 of the Constitution
of India confers on the Parliament power
to make laws for the whole or any part of
the territory of India and the legislature
of the State for the whole or any part of
the State. Article 246 of the Constitution
gives exclusive power to the Parliament
to make laws with respect to any of the
matters enumerated in List-I (Union
List), whereas the legislature of any
State has exclusive power to make laws
for such State or any part thereof with
respect to any of the matters in List II
(State List) in the VIIth Schedule. Entry
III
of
State
List
gives
the
State
Legislature power to make laws inter alia
in respect of fee taken in all Courts
except the Supreme Court. In view of
aforesaid, there is no difficulty in holding
that the State Legislature has power to
make law in respect of fee taken in all
Courts except the Supreme Court.

Accordingly the answer of the question
formulated for our decision is in the
negative
and
it
is
held
that
the
provisions of the Court Fees Act as
amended from time to time in the State
of Uttar Pradesh is not ultra vires the
State Legislature.
Case law discussed:
AIR 1973 SC 724, AIR 1996 SC 676, JT
2001(2)SC 242

(Delivered by Hon'ble C.K. Prasad, C.J.)

1. This appeal has come up for
consideration before us on a reference
made by a learned Single Judge by his
order dated 18th of August 1975. The
facts, which led the learned Single Judge
to make reference, are as follows:-

2. The plaintiff is the appellant. The
defendants are his sole selling agent and
the plaintiff filed the suit for accounting
against the defendants in respect of
commission sale made by them at its sole
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

selling agent. The plaintiff valued the suit
at Rs.15437.50 and on the suit so valued,
paid
an
ad-valorem
court
fee
of
Rs.1208.25. The trial court decreed the
suit with cost on 9th September 1958 but
while decreeing so, directed that for the
purpose of commission the account of
sale effected by the defendants between
18th February 1951 to 15th February
1954, shall alone be considered. It further
observed that defendants 3 to 5 shall not
be personally liable for the decretal
liability. Three first appeals were filed in
this Court, one at the instance of the
plaintiff, other filed by defendants 3 to 5
and third by the defendant firm and in
each of these appeals, the appellants paid
a court fee at Rs.1208.25 respectively on
the memorandum of appeal. However,
before these appeals could be taken up
and disposed of by this Court, all were
transferred to the court of District Judge,
Kanpur in view of the provisions of U.P.
Civil Law Amendment Act, 1970. On
transfer, these appeals were heard by 1st
Addl. District Judge, Kanpur, who by his
judgment and decree dated 3rd of July
1972 dismissed the appeal of the plaintiff
with cost and the appeal filed by
defendants 3 to 5 was allowed. As
regards, the appeal preferred by the
defendant firm, the same was partly
allowed and the decree of the trial court
was modified.

3. Against aforesaid judgment and
decree, plaintiff filed the present Second
Appeal in this Court and he valued the
appeal at Rs.15437.50 on which court fee
of Rs. 1570.00 was payable. However, the
appellant did not pay the court fee but
stated that " no court fee is being paid, as
the plaintiff appellant contends that the
provisions of the Court Fees Act as
amended in Uttar Pradesh from time to
time are ultra vires the State Legislature,
void and unenforceable inasmuch as the
amount
of
fee
prescribed
by
the
provisions of that Act bears no relation to
the cost of administering justice."

4. As the plea involved necessity of
payment of court fee, a reference was
made under Section 5 of the Court Fees
Act, in which, the learned Single Judge
observed as follows:

"It would, therefore, be necessary in
this case to find out whether the advalorem court fees imposed amounts to a
tax. It will, therefore, be necessary to see
if there is some sort of a co-relation
between the income from court fees and
the
expenditure
incurred
for
the
administration of justice in this State."

5. The learned Judge directed the
matter to be laid before Hon'ble the Chief
Justice for constituting a larger Bench for
decision of the following question :-

"Whether the provisions of the
Court-Fees Act as amended from time to
time in the State of Uttar Pradesh are
ultra vires of State Legislature."

6. Hon'ble the Chief Justice on a
reference so made, directed the matter to
be heard by a five Judges' Bench and that
is how, the matter has been listed before
us.

7. A brief history in regard to the
levy of court fee deserves notice. Before
arrival of British Rule in India, there was
no levy on the party approaching the court
for redressal of its grievance. Historian
say that during Mughal Rule and prior
thereto, there was no fee payable on
administration of justice and it was totally
3 All] Shree Shri Ram Das V. M/s Punjab Iron Stores and another

777
free. With the advent of British Rule in
this country, regulations were framed
imposing court fee and was nominal at the
beginning. It was gradually increased to
prevent institutions from frivolous and
uncalled for litigations on an assumption
that it shall act as deterrent to the abuse of
the process of the Court. Many do not feel
that levy of fee had put restraint on
frivolous
and
groundless
litigations.
However, in recent times, the scale of fee
has been raised to an extent which has
given rise to feeling to many that it is no
longer a fee but tax on the litigants.
Caveators say that in modern times,
expenditure on administration of justice
has tremendously increased and therefore,
in order to meet those expenditures, sharp
increase in the court fee is the only
answer. Without influenced by any of
these
considerations,
we
intend
to
consider the question involved on its own
merit.

8. In fairness to Mr. Kunal Ravi
Singh appearing on behalf of the
appellant, he does not contend that State
Legislature lacks competence to enact or
make amendment in Court Fees Act.
However, according to him the power to
legislate in respect of fee cannot be used
to raise revenue of the State. It is
contended that the amount of court fee
realized is not spent for the administration
of justice and therefore, the fee partakes
the character of tax and hence it is ultra
vires.

9. Mr. S.P. Kesarwani, however,
appearing on behalf of the State submits
that the quid pro quo need not be
established arithmetically and if it is
found that its object is not to raise revenue
for the general purposes of the State, the
act of the legislature cannot be said to be
ultra vires.

10. Rival submissions necessitate
examination
of
the
Constitutional
Scheme. Article 245 of the Constitution
of India confers on the Parliament power
to make laws for the whole or any part of
the territory of India and the legislature of
the State for the whole or any part of the
State. Article 246 of the Constitution
gives exclusive power to the Parliament to
make laws with respect to any of the
matters enumerated in List-I (Union List),
whereas the legislature of any State has
exclusive power to make laws for such
State or any part thereof with respect to
any of the matters in List II (State List) in
the VIIth Schedule. Entry III of State List
gives the State Legislature power to make
laws inter alia in respect of fee taken in all
Courts except the Supreme Court. In view
of aforesaid, there is no difficulty in
holding that the State Legislature has
power to make law in respect of fee taken
in all Courts except the Supreme Court.

11. As the State Legislature has been
conferred with the power to make laws in
respect of fees taken in all Courts, it
cannot make law providing for charging
tax.

12. In view of aforesaid, one is
required to consider the distinction
between fee and tax. Broadly speaking
fees and taxes are both for the benefit of
the State whereas the levy of fee must
have co-relation with the expenditure for
which it is collected. However, fee cannot
be imposed for increasing the general
revenue of the State. Further quid pro quo
is not to be established with mathematical
accuracy. This point is not res integra and
had been the subject matter of decisions
778 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

of the Supreme Court in a large number of
cases and hence does not require much
deliberation. In the case of the Secretary,
Government of Madras and another vs.
Zenith Lamps and Electrical Limited, AIR
1973 SC 724 the Supreme Court held as
follows:

"But even if the meaning is the same,
what is ''fees' in a particular case depends
on the subject-matter in relation to which
fees are imposed. In this case we are
concerned with the administration of civil
justice in a State. The fees must have
relation to the administration of civil
justice. While levying fees the appropriate
legislature is competent to take into
account all relevant factors, the value of
the subject matter of the dispute, the
various steps necessary in the prosecution
of a suit or matter, the entire cost of the
upkeep
of
courts
and
officers
administering civil justice, the vexatious
nature of a certain type of litigation and
other relevant matters. It is free to levy a
small fee in some cases, a large fee in
others, subject of course to the provisions
of Art. 14. But one thing the Legislature is
not competent to do, and that is to make
litigants contribute to the increase of
general public revenue. In other words, it
cannot tax litigation, and make litigations
pay, say for road building or education or
other beneficial schemes that a State may
have. There must be a broad corelationship with the fees collected and
the cost of administration of civil justice."

13. Further while dealing with the
issue, the Supreme Court in the case of
Secretary to Government of Madras and
another vs. P.R. Sriramulu and another,
AIR 1996 SC 676 observed as follows:-

"15. As pointed out earlier with
reference to the decisions of this Court
the State enjoys the widest latitude where
measure of economic regulations are
concerned. These measures for fiscal and
economic
regulation
involve
an
evaluation of diverse and quite often
conflicting economic criteria, adjustment
and balancing of various conflicting
social and economic values and interests.
It is for the State to decide what economic
and social policy it should pursue. It is
settled law that in view of the inherent
complexity of the fiscal adjustments, the
Courts give a large discretion to the
legislature in the matter of its references
of economic and social policies and
effectuate the chosen system in all
possible and reasonable ways. If two or
more methods of adjustment of an
economic measure are available, the
legislative preference in favour of one of
them cannot be questioned on the ground
of lack of legislative wisdom or that the
method adopted is not the best or there
are
better
ways
of
adjusting
the
competing interests and the claims as the
legislature possesses the greatest freedom
in such areas. It is also well settled that
lack of perfection in a legislative measure
does
not
necessarily
imply
its
constitutionality as no economic measure
has so far been discovered which is free
from all discriminatory impact and that in
such a complex area in which no foolproof device exists, the Court should be
slow in imposing strict and rigorous
standard of scrutiny by reason of which
all local fiscal schemes may be subjected
to criticism under the equal protection
clause. Having regard to these settled
principles the impugned judgment of the
High Court could not be sustained."
3 All] Shree Shri Ram Das V. M/s Punjab Iron Stores and another

779
"16..............it may be noted that
factually it is neither possible nor
practicable to give the exact break up of
figures in regard to the expenses incurred
under
different
heads
and
other
departments
of
the
Government
in
relation to the administration of civil
justice."

14. In view of aforesaid enunciation
of law in unequivocal terms, it is
inexpedient to multiply the authority on
this issue.

15. The next question, which
requires consideration, is as to whether
the State has to satisfy with mathematical
precision that the fee collected is spent for
the purpose it has been levied. In the
present case, therefore, one has to see as
to whether court fee levied is spent on
administration of justice. One has to bear
in mind that there has to be a broad corelationship with the fee collected with
the cost of administration of civil justice
and the State cannot enrich itself or to
secure revenue for general administration
by levy of fee. It is neither possible nor
practicable to give exact breakup of the
figures in regard to the expenses in
relation to the administration of justice. It
is not the requirement of law that the
collection raised through the fee should
exactly tally with the expenditure. The
amount raised through the fee and
expenses incurred in providing the
services is not to be examined with
exactitude with a view to ascertain any
accurate or arithmetical equivalence. The
test that the State cannot enrich itself by
levy of fees would be satisfied if there is a
broad co-relation between the amount
raised from fee and the expenses incurred
in administration of justice.

16. The Supreme Court had
occasion to consider this question in the
case of B.S.E. Brokers Forum, Bombay &
others vs. Securities & Exchsample head
noteange Board of India and others JT
2001(2)SC 242 and on a review of its
earlier decisions the law has been laid
down in categorical terms as follows:

"While
examining
the
reasonableness of the quantum of levy,
the same will not be done with a view to
find out whether there is a co-relatable
quid pro quo to the quantum of levy,
because as noticed hereinabove, the quid
pro quo is not a condition precedent for
the levy of a regulatory fee. Such
examination will have to be made in the
context of the levy being either excessive
or unreasonable for the requirement of
the authority for fulfilling its statutory
obligations."

17. No facts and figures have been
brought on record by the appellant so as
to demonstrate that the fee levied is so
high and intended to secure revenue for
general administration. However, the
State has placed on record the figures,
which clearly show co-relationship with
the amount of fee collected and the
expenditure on administration of justice.
Therefore, it cannot be said that in the
garb of fee the impugned legislation
provides for tax and thus it cannot be said
to be a colourable exercise of power.

18. It is relevant here to state that a
large number of authorities on the same
issue have been brought to our notice but
in order to avoid multiplicity of decisions,
we have refrained from referring each one
of them.
780 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

19. Accordingly the answer of the
question formulated for our decision is in
the negative and it is held that the
provisions of the Court Fees Act as
amended from time to time in the State of
Uttar Pradesh is not ultra vires the State
Legislature.

20. The appellant shall now deposit
the court fee within four weeks from
today, failing which appeal shall stand
dismissed without further reference to the
Bench.

21. If appellant so deposits the court
fee, the appeal shall be placed for
consideration on merit before the Judge
in jurisdiction.

22.
Reference
is
answered
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2009

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.12929 of 1988

Ram Asrey

...Petitioner
Versus
Collector, Banda & others ...Respondents

Counsel for the Petitioner:
Sri W.H. Khan
Sri J.H. Khan

Counsel for the Respondents:
Sri Pradep Verma
S.C.

U.P. Zamindari Abolition & Land Reforms
Rules 1956-Rule 285: Confirmation of
auction sale- default repayment of
loan-land
of
barrower
in
auctionconfirmed by Sub Divisional Officer-heldconfirmation order without jurisdictiononly the collector has power.

Held: Para 3 & 4:

Amongst the other grounds raised by the
petitioner, this Court is confining the
submission to only one ground, namely,
that the sale could not have been
confirmed by the Sub Divisional Officer
and could only have been confirmed by
the Collector, as contemplated under
Rule
285-J
of
the
U.P.
Zamindari
Abolition and Land Reforms Rules.

In Ajay Upadhayay vs. Collector, Ballia &
Ors., 2008 (26) LCD 623, a Division
Bench of this Court, after analysing
various Government Orders, issued from
time to time, held that the Sub Divisional
Officer/the Deputy Collector had no
power to confirm or set aside the sale,
and was only given the power to conduct
the same. The Division Bench held that
the power to confirm or aside the sale
only lies with the Collector, and to no
other authority. Similar view was again
held by another Division Bench in Ram
Awadh Tiwari vs. Sudarshan Tiwari &
Ors., 2008(6) ALJ 24.
Case law discussed:
2008 (26) LCD 623, 2008(6) ALJ 24.

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard the learned counsel for the
petitioner and the learned Standing
Counsel for the respondents. List of
hearing cases has been revised. The
learned
counsels
for
the
private
respondents are not present.

2. The petitioner is a landless
labourer and took a loan from the bank for
purchasing a pumping set. The petitioner
committed a default and, accordingly, his
land was attached and sold by public
auction, in which, the bid of the
respondent no. 5 was found to be the