In re Abdul Gaffoor

Kumarayya, J.—I am now concerned only with the question of correct court fee payable on this petition for a Writ of Certiorari. The petitioner in a simple mortgagee of property which has been subsequently declared evacuee property and taken over by the Assistant Custodian. It was then acquired u/s 12 of the Displaced Persona Compensation and Rehabilitation Act XIV of 1954 and was sold in auction on 29-1-1956. In, vain did the petitioner apply to the Assistant Custodian and then to the Custodian in appeal.

The former on 25-1-1956 and the latter by an Order dated 9-6-1956 repelled his contention. He therefore applied to this court on 10-9-1956 for a writ of certiorari paying a court fee of Rs. 10/-. But the Andhra Court Fees and Suits Valuation Act (Act VII of 1956) had already come into force on 1-5-1956 whereunder, according to schedule, a court-fee of Rs. 100/- is payable on such petitions. The petitioner contends that the court-fee actually paid by him is the correct court-fee payable.

The argument in support of this contention proceeds on the basis, firstly, that since the preceedings which gave occasion to this Writ were instituted long before the advent of the Act, h(sic) had a vested right to pay court-fee according f(sic) the rules then in force and this right cannot (sic) affected by the new Act; secondly, that the ne(sic) Act in terms has protected such a right allege(sic) thirdly, that at any rate, the court-fee for such proceedings being mentioned in the schedule an not under the Act itself, there was no legal liability to pay the same.

The learned counsel during the course (sic) arguments referred me to Article 226 of the Constitution and. the power of the High Court make rules and prescribe court-fee conferred thereby; but he at the same time, made it cle(sic) that he is not disputing the competency of the Legislature to effectively make laws on the sar(sic) subject of court-fee. He concedes that the n made by the High Court prescribing court-fee Rs. 20/- in exercise of the powers under Artie 225 of the Constitution, would have no leg(sic) authority if the appropriate Legislature prescribed a different court-fee.

But his contention is that unless the new I gislation expressly or by necessary implication gives retrospective operation to the provisions, would not affect the pre-existing court-fee in re (sic)tion to proceedings already instituted or proceedings which may arise therefrom. He further contends that a writ proceeding is a proceeding of latter description.

It would appear from the express previsions of the Act that the Andhra Court-fees a Suits Valuation Act does not apply to proceedings that arose from suits or proceedings alrea(sic) instituted before the advent of the Act. Section 79 (2) reads as below :

All suits and proceedings instituted before the commencement of this Act and all proceedings by way of appeal, revision or otherwise; sing therefrom, whether instituted before after such commencement, shall, not withstand the repeal of the Court-fees Act, 1870 (Central VII of 1870), and the Suits Valuation Act, 3 (Central Act VII of 1887), be governed by provisions of the said Acts and the rules m thereunder.

Thus in all proceedings by way of app(sic) revision or otherwise arising from the previo(sic) instituted suit or proceeding, the court-fee s(sic) be Paid as though the new Act has not come force at all. But we are now concerned with writ proceeding which does not fall within ambit of this ''class as it is neither a proceeding in the nature of appeal or revision nor can in said that it otherwise arises from the previc(sic) instituted suit or proceeding. It is indeed ar(sic) together different and indenendent proceeding. As has been observed in Ramayya v. State Madras, ILR 1952 Mad 698. (AIR 1952 Mad (A), a writ of certiorari, unless it relates to criminal matters, is an original civil proceeding.

The power to issue such writ is original also the jurisdiction exercised is original jurisdiction. This proceeding is not in the nature miscellaneous proceedings such as testamen matrimonial, admiralty etc. Nor is it In nature of appellate or revisional proceeding, power may be supervisory or corrective but o(sic) account can they be said to be appellate. At served Veerappa Pillai Vs. Raman and Raman Ltd. and Others,

However extensive the writ jurisdiction the High Court may be, it is not so wide or (sic)s to enable the High Court to convert itself into (sic), court of appeal and examine itself the correct. (sic)ess of the decision impugned and decide what is the proper view to be taken or the order to be lade.

(sic)beyond doubt, this jurisdiction is not re-visionary other, for in exercise of this jurisdiction the (sic)tigh Court Has no power to correct either findings of fact or errors of law except when the (sic)rror is patent on the face of the record. Thus (sic) writ proceeding is neither appellate nor reversionary within the meaning of section 79 (2) of be Andhra Court-fees and Suits Valuation Act. (sic) is argued that it is nevertheless "a proceeding (sic)rising otherwise" from the suit or proceeding ready instituted so as to fall within the ambit (sic) the said class. I do not agree with this convention.

What is contemplated by that expression is that the proceeding, though not in the nature of appeal or revision, must nevertheless indicate the (sic)gal pursuit of remedy connected with the Its so (sic)at by its very nature it may be an off-shoot of (sic)e suit or proceeding previously instituted. In-(sic)sed it should be but a step in the series of pro. (sic)edings all connected by an intrinsic unit, to be regarded as one legal proceeding. The writ proceeding is not of the kind. It is an independent proceeding unconnected with the merits of the(sic).

Unlike appeal or revision, it is not the continuation of the original proceeding. It is only invaded to keep the judicial or quasi-judicial (sic)dies within the limits prescribed by law. The (sic)it jurisdiction is sought to be exercised only there the tribunals or officers act wholly with(sic)t jurisdiction, or in excess of it, or in violation the principles of natural justice or refuse to exercise jurisdiction vested in them or miscarried of justice. As already pointed out, its jurisdiction does not extend to examining for itself (sic)e correctness of the impugned decision or deling the proper view to be taken or order to passed in the suit.

Thus, a writ proceeding is, in no way conned with the object or purpose of the lis. Its (sic)n is altogether different. Of course, the acts, (sic)issions, errors or excesses of the tribunals (sic)ile disposing of the suit, appeal or any connected proceeding may give occasion to the exercise writ jurisdiction. The writ proceeding on that count cannot become a branch or off-shoot of (sic) lis. In my opinion therefore the provision of section 79 (2) of Andhra Court-fees and Suits (sic)luation Act has no application to this Writ (sic)ceeding.

It is argued that the petitioner has a ted right to come to this court in an action writ and such a right cannot be defeated or (sic)iuly hampered by the imposition of enhanced court-fee. This argument seems to be equally (sic)enable. The petitioner had an effective ready open to him against the order of the Assistant Custodian dated 25-1-1956. He sought for (sic)s remedy, which he must, before he could come this court. He applied for a writ after the Custodian has passed his order dated 9-6-1956. (sic)nittedly, the new Court-Pees Act had come (sic) force by that time.

I am not therefore prepared to accept that right to Ale a writ petition had in fact occru(sic) before the advent of the Act. That apart, the court-fee does not become payable as and when cause of action arises so that the party may (sic)m vested right to nay only the then existing court-fee. The Court-fees Act becomes applicable only on the claim being preferred in the court. The institution Of the suit no doubt then carries with it the implication that all rights of appeal or other substantive rights, if any, then in force, are preserved to the parties till the rest of the career of the suit.

The party then can justifiably complain of a clog or substantial restriction on this right unless the subsequent enactment expressly or by necessary intendment lays down such restriction or affects such right. Such a right becomes vested only at the commencement of the proceedings and not before. As observed above, the present proceeding is an independent original proceeding and not a continuation of any previous proceeding. No question of a vested right therefore can arise.

The petitioner certainly cannot plead that his right to file a writ petition itself is hampered by the imposition of court-fee. The right to sue or make an application is not an unfettered right. The statutes of court-fee and limitation and other legal provisions do place their own restrictions. A suitor cannot complain of the same with any justification. I therefore disallow this plea.

It is next contended that since the court-fee for such proceeding is not mentioned in the Act but only in the Schedule, there is no legal liability on the petitioner to pay the same, This question has been dealt with by a Division Bench of this Court in Bh. Satyanarayanamurti Vs. Income Tax Appellate Tribunal Madras Bench , and I respectfully agree with the observations, and conclusion that the schedule is as much a part of the Act and that in view of the provisions of the Act the liability imposed in the Schedule is equally binding.

In my opinion, the objection of the office is correct and the correct court-fee to be Paid is Rs. 100/-. The petitioner should make up the deficiency within three weeks.