Union of India (UOI) vs Mirzamal Gouri Prosad

Sen, J.—This Reference was made by the Registrar of the Calcutta High Court as the Taxing Officer u/s 5 of the Court-fees Act. The Taxing Officer in view of the general importance of the question raised before him referred the matter for the order, of the learned Chief Justice who by an order u/s 5 of the Court-fees Act has nominated this Court to hear, the Reference.. The question involved is what is the proper court-fee payable on memoranda of appeals and revisions and vakalatnamas filed in Calcutta High Court but arising from suits or proceedings in. Purulia, a territory which has been transferred to West Bengal under the Bihar and West Bengal Transfer of Territories Act, 1956. The questions framed by the learned Taxing Officer are as follows:

(1) What court-fees are payable on the memoranda of appeals arising out of suits and appeals decided by the Purulia courts-whether according to Bihar scale or according to West Bengal scale.

(2) What court-fees are payable on the vakalatnama filed along with such appeals-whether according to Bihar scale or according to West Bengal scale.

The Bihar and West Bengal Transfer of Territories Act, 1956, received the assent of the President on August 31, 1956, and was published in the Gazette on September 1, 1956. The appointed day on which the transfer of territories became effective is November. 1, 1956, as laid down in Section 2, Clause (a) of the Act. By Section 3 of the Act, as from the appointed day the Purulia subdivision of Manbhum district excluding certain thanas was added to the State of West Bengal and ceased to form part of the State of Bihar. But the laws in force in the transferred territories continued to be the same as before in spite of such transfer, in view of the provisions of Section 43 of the Act which runs as follows:

The provisions of Section 3 shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to Bihar or West Bengal shall, until otherwise provided by a competent legislature or other competent authority be construed as meaning the territories within that State immediately before the appointed day.

u/s 44 of the Act the appropriate Government may, before the expiration of one year from the appointed day, by an order make such adaptations and modifications of the law in respect of the transferred territory as may be necessary. No such adaptation or modification of the law applicable to Purulia has been made by an order of the West Bengal Government. After the expiry of the period of one year any alteration in the existing law in the transferred territories must be made by the legislature. No law has also been passed applying the West Bengal laws to the transferred territories of Purulia and Kishanganj. Accordingly, the Court-fees Act with Bihar amendments, which was in force in the transferred territories, continued to be in force in such territories. There is no doubt therefore that in respect of suits and appeals filed in any courts situated within the transferred territories'' as the court of Munsif or Subordinate Judge, Purulia, the court-fees payable would be according to the Court-fees Act as modified in Bihar. The question however is what should be the court-fees payable on memoranda of appeals and vakalatnamas filed along with, the appeals which are filed in the Calcutta High Court after the appointed day. Section 4 of the Court-fees Act provides that the High Court in its appellate jurisdiction shall not accept any document which requires to be stamped under schedule I or II of the Court-fees Act unless it is properly stamped in accordance with the scale prescribed in the schedule. Accordingly, when a memorandum of appeal or a vakalatnama is filed in the Calcutta. High Court, the proper authority of the Calcutta High Court must see that it is properly, stamped in accordance with the scale prescribed in the schedules to the Court-fees Act and necessarily reference will be made to the schedules in force in West Bengal where the Calcutta High Court is situated.

u/s 43 of the Bihar and West Bengal Transfer of territories Act, the Court-fees Act as modified in Bihar applies to the transferred territories of Purulia and Kishanganj, but that does not mean that the Bihar version of the Court-fees Act will also apply to any appeal or matter arising out of suits or proceedings arising from the transferred territories.

The learned Government Pleader has sought to support the view taken by the Stamp Reporter and the learned Registrar that in respect of appeals and proceedings arising from the transferred territories, the Court-fee scales in force in the transferred territories lief ore the appointed day will apply. In support of this proposition, the learned Government Pleader has referred to the rule followed in the matter of court-fees when appeals and revisional applications were filed in the Calcutta High Court from Assam before Assam came to have a separate High Court of its own. On memoranda of appeals and revisional applications arising from decisions of courts in Assam, court-fees had to be paid according to the Assam scale. The learned Government Pleader has urged that similarly memoranda of appeals arising out of decisions of Purulia courts or courts in Kishanganj muse be stamped according to the Bihar scale of court-fees. But the case of the Calcutta High Court hearing appeals from Assam before the Assam High Court came into existence was different; the Calcutta High Court functioned as the High Court of Assam at the time when dealing with matters arising from Assam. Accordingly, in entertaining appeals and revisional applications arising from Assam, the High Court had to see that the memoranda of appeals and other papers mentioned in Section 4 of the Court-fees Act were properly stamped according to the Assam scale. But when entertaining appeals from the transferred territories like Purulia which have become parts of the State of West Bengal from the appointed day, the Calcutta High Court acts not as the High Court of Bihar but as the High Court of West Bengal.. The court-fees on memoranda of such appeals therefore must be levied according to the West Bengal scale and not as if the memoranda of appeals were being filed in the Patna High Court. The Assam analogy relied upon by the learned Government Pleader cannot therefore be applicable.

The questions referred turn entirely on the proper interpretation of Section 43 of Bihar and West Bengal Transfer of Territories Act, 1956. The learned Government Pleader has referred to the decision of the Judicial Committee in (1940) L.R. 67 I.A. 394 (Privy Council) that in revenue cases the strict legal position and not the "substance of the matter" must be regarded; and he has drawn particular attention to Lord Cairn''s observations in Partington v. Attorney General (1889) L.R. 4 H.L. 100, 120, viz.-

As I understand the principle of all fiscal legislation, it is this: If the person sought to be taxed comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Grown, seeking to recover the tax, cannot, bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.

This is undoubtedly an authoritative statement of the relevant law, but the statement confirms the view that the case depends entirely on the proper interpretation-the strict interpretation- of Section 43 of the Transfer of Territories Act. Section 43 provides that the territories to which any law in force immediately before the appointed day extended or applied, shall remain the same in spite of the transfer of the territories from Bihar to West Bengal; in other words, in the transferred territories of Purulia and Kishanganj the Bihar laws will apply. This cannot be extended to mean that the Bihar laws will also apply in respect of the scale of court-fees payable on the memoranda of appeals which are filed in Calcutta after the appointed day, even though the appeals arise from the transferred territories. The field of applicability of the Bihar laws in the matter of procedure including court-fees is limited to the transferred territories and does not attach to persons resident therein. The legal rights of such persons arising for decision in the High Court appeals will no doubt be governed by the substantive laws in force in the territories, but this does not affect the procedural law including the scale of court-fees by which the filing of memoranda of appeals and vakalatnamas by such persons in the Calcutta High Court after the appointed day will be governed. I see no reason to hold that on such memoranda of appeals and vakalatnamas the Bihar scale of court-fees will be payable. The learned Government Pleader has mentioned that if the West Bengal scale is charged on the memoranda and vakalatnamas filed in the Calcutta High Court, the Purulia litigants will have to pay one scale of court-fees in filing the appeals in the court of the District Judge of Purulia and another scale in filing their appeals including second appeals in the High Court. This anomaly is a necessary concomitant of the transitional stage before the West Bengal laws in their entirety have been made applicable to the transferred territories. This anomaly cannot be an argument in favour of the application of the Bihar scale in the Calcutta High Court.

Accordingly, my replies to the questions framed by the learned Registrar are as follows:

(1) The court-fees payable on the memoranda of appeals arising out of suits and appeals decided by the Purulia courts and filed in the Calcutta High Court after the appointed day shall be levied according to the "West Bengal scale.

(2) The court-fees on valmlatnamas filed along with such appeals shall also be levied according to the West Bengal scale.

The Reference is disposed of accordingly.