VEERASWAMI

1. The Supreme Court in Government of Madras v. Zenith Lamps A.I.R. 1973 S.C. 724 allowed certain appeals from a common judgment of this court, (1) to which one of us was a party and by which the ad valorem flat rate of levy made by Art. 1, Sch. I to the Madras Court Fees and Suits Valuation Act (Act XIV of 1959) in its application to the High Court which was adopted by Rule 1 in Appendix I relating to the High Court Fees Rules, 1933, as amended was struck down as invalid and unconstitutional. This Court held that Court fee was not a tax, but a fee as normally understood. The counter-affidavit filed on behalf of the State which was sworn to by one Mr. Kelu Eradi, a Joint Secretary, showed that, according to the figures for 1954㬳 and for certain subsequent years, the State was deriving a profit out of court fee collected over the expenditure in respect of Civil Courts and Administration of Justice; but a supplemental counter affidavit for the Government and sworn to by one Mr. Shivakumar, a Deputy Secretary and filed at the stage of arguments, exhibited different figures revealing an attempt to cut down the receipts and inflate the expenditure. This court did not, however, rest its conclusion on this s upplemental counter-affidavit and decide the question of correlation as, in its view, on the principle of Corporation of Madras v. Spencer and Co. See: Zenith Lamps v. Government of Madras; 81 L.W. 110; I.L.R. 1968 1 Mad. 247 [Ed the ad valorem flat rate of 7 percent without limit as court fee would be unreasonable, because, where the cost of service had to be distributed between several persons it would not be equitable and reasonable if the fees were so fixed that the whole cost or a grossly disproportionate part of it was imposed on a particular section of litigants. The Supreme Court, in allowing the appeals before it and remitting the matters to this court, observed:

“It seems to us that we cannot dispose of this appeal without giving opportunity to the respondents to file an affidavit or affidavits in reply to the supplemental counter affidavit dated 11th October 1966/because, if we take the figures as given and explained by the Advocate General, we cannot say that the State is making a profit out of the administration of civil justice. Various items, both on the receipts side and the expenditure side have to be carefully analysed to see what items or portion of items should be credited or debited to the administration of civil justice.

It is true, as held by the High Court, that it is for the State to establish that what has been levied is court fees properly so-called, and if there is any enhancement, the State must justify the enhancement.

We are accordingly constrained to allow the appeal and set aside the judgment passed by the High Court and remand the case to it. We direct that the Court should give an opportunity to the writ petitioners to file an affidavit in reply to the affidavit dated 11th October 1966. The High Court shall then decide whether the impugned fees are court fees or taxes on litigants or litigation”.

Since then, pursuant to the opportunity given, further affidavits have been filed by the relative petitioners or applicants traversing the supplemental counter affidavit of the Government.

2. While we consider this supplemental counter affidavit in the light of the affidavits countering it, we have to bear in mind the essential distinction between tax and fee, and, when a purported levy of fees is, in fact, an imposition of tax. A levy of fee, like tax, is a compulsory exaction. But, while the latter is raised for support of Government, the former, unlike tax, is collected as a recompense or quid pro quo for special services rendered to particular individuals in order to meet the cost thereof. A tax is a common burden; but a fee is a payment for a special benefit or privilege. The Supreme Court in Government of Madras v. Zenith Lamps 52 Mad. 764, quoted the following, evidently with approval, from the observations of Hedge, J., in the Indian Mica and Micanite Industries Ltd. v. State of Bihar and others A.I.R. 1973 S.C. 724:

“From the above discussion, it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable correlationship with the services rendered by the Government. In other words, the levy must be proved to be a quid pro quo for the services rendered. But in these matters it will be impossible to have an exact correlationship. The correlationship expected is one of a general character and not as of arithmetical exactitude.”

After referring to this observation, the Supreme Court in Government of Madras v. Zenith Lamps 52 Mad. 764 went on to observe:

“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 an d 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 litigants pay, say for road building or education or other beneficial schemes that a State may have. There must be a broad correlation ship with the fees collected and the cost o f administration of civil justice.”

In the judgment which was the subject matter of the appeal in the Supreme Court, this court (3) observed:

If the element of revenue for the general purposes of the State predominates, then the taxing element takes bold of the levy and it ceases to have any relation to the cost of administration of the laws to which it relates; it becomes a tax. Its validity has then to be determined with reference to its character as a tax and it has to be seen whether the Legislature has the power to impose the particular tax. When a levy is impugned as a colourable exercise of legislative power, the State being charged with raising a tax under the guise of levying a fee, courts have to scrutinise the scheme of the levy carefully, and determine whether, in fact, there is correlation between the services and the levy, or whether the levy is excessive to such an extent as to be a pretence of a fee and not a fee in reality. If in substance, the levy is not to raise revenues also for the general purposes of the State, the mere absence of uniformity or the fact that it has no direct relation to the actual services rendered by the authority to each individual who obtains the benefit of the service, or that some of the contributories do not obtain the same degree of service as others may will not change the essential character of the levy.”

The Supreme Court agreed with these observations as representing the correct position in law. The Statement of Objects and Reasons for enacting the Tamil Nadu Court Fees and Suits Valuation Act of 1955 did not say that it was necessary to increase court fees receipts in order to meet any shortfall in meeting the cost of administration of civil justice in courts. On the other hand, the whole approach to the enactment was based on the principle of rationalisation of levy of court fee in the light of Sathiamurthi's Report. Though this was the objective that informed the changes brought about in the Act to the pattern of levy of court fee in different types of suits, appeals and applications, the question is whether the levy under Art. I of Sch. I to the Act on an ad valorem flat rate basis without any limit satisfies the pre-requisites of a valid levy of court-fee, or whether the tax elements predominantly took hold of the said ad valorem charge. Before 1955, what was in vogue from the Court Fees Act of 1870 with its local amendments was an ad valorem levy on plaints and memoranda of appeal on a slab basis at a tapering rate. Progressively lower rates were applied to gradually higher slabs. Madras Act 5 of 1922. which amended Sch. I to the Central Court Fees Act was enacted expressly for the purpose of providing additional revenue to meet the increased cost of administration, unlike the Tamil nadu act xiv of 1955, whose object, as we said, was only to combine court fees and suits valuation in one enactment under a rationalised law. With reference to Sch. 1, Art. 1 to the 1955 Act, the Statement of Objects and Reasons published in the Fort St. George Gazette, 10th May 1954, said:

“Ad valorem fee is made payable at a uniform rate of 7 per cent. At present a person who institues a suit on a promissory note for Rs. 500 pays a court fee computed at 7 per cent whereas a person who files a suit for recovery of Rs. 500 by sale of mortgaged property pays fee at 11 per cent. The issues arising in both the suits may be of the same kind; and where the money is not paid, attachment and sale of property in execution of the decree on the promissory note might be more protracted than sale of the property in enforcement of the mortgage decree. The disparity in fee cannot be justified. Further, in regard to debtors owing small amounts, obligation to pay a fairly high rate of fee if the suit happens to be an ‘original’ suit instead of a small cause suit in addition to the debt which itself they find difficult to pay, is a hardship from which they should be relieved. On the other hand, there does not appear to be any justification for levying a lower rate of fee in respect of litigation above Rs. 5,000. The rate of fee is therefore made uniform at 7 per cent. In other respects too an attempt is made in the Bill to make the law relating to court fee and valuation of suits uniform, logical and coherent”.

The following table brings out the enormous difference in the incidence of court fee between the 1922 Act and the 1955 Act:

1922 Act Rate on slab 1955 Act

Rs. 1,000 Rs. 112-7 11 % 75

Rs. 5,000 Rs. 412-7 7 % 375

Rs. 10,000 Rs. 712-7 6 % 750

Rs. 20,000 Rs. 1162-7 4 % 1500

Rs. 30,000 Rs. 1462-7 3 % 2250

Rs, 50,000 Rs. 1762-7 1 % 3750

Rs. 100,000 Rs. 2062-7 3/5 % 7500

Rs. 200,000 Rs. 2662-7 do 15000

Rs. 300,000 Rs. 3263-7 do 22500

This statement shows how the levy of court fee at the flat rate of 7% without limit works. It is submitted to us that this phenomenal increase at a flat rate without limit is a tax rather than court fee, and violates the principle that a single suit or a single case should not be asked or compelled to pay an exhorbitant amount though, suits of larger valuation may pay amounts higher than suits of lower valuation. Our attention has been invited to the fact that the tapering slab rate with a nominal rate not exceeding one per cent if the subject matter of the suit is more than Rs. 50,000 has been the pattern in every court fee enactment from 1870 and to the further fact that this court in the new Court Fees Rules made on 11th September 1968 had borne in mind that principle. These Court Fees Rules on the Original Side of this Court provided a sliding scale as follows:—

Up to Rs. 10,000 7 Percent

Rs. 10,000 to Rs. 25000 6 do

Rs. 25000 to Rs. 50,000 5 do

Rs. 50,000 to Rs. 75,000 4 do

Rs. 75,000 to Rs. 1.00,000 2 do

Rs. 100,000 and over. 1 do

It seems to us that, in the circumstances, there is force in the contention that the levy at 7, ad valorem flat rate without limit has in itself more the element of tax than the idea of quid pro quo, that is to say, necessity to raise court fee as compensation for the cost of service rendered and to meet any increased cost in the administration of civil justice. We have already mentioned that what motivated the enactment 1955 Act was not any need or necessity to raise more court fee to meet increased cost of administration of civil justice, but it was for the purpose of rationalisation as contemplated by Sathiamurthi's report even that report did not recommend such a heavy ad valorem flat rate without limit, but in fact suggested lower rates of Court Fee at higher denominations of plaint or appeal values. In our opinion, no principle of rationalisation justifiably demands such a flat rate as found in Art. I, Schedule I to the 1955 Act. We recognise that in order to uphold the validity of the levy, it is not necessary that the levy should have direct correlation to the actual services rendered in each case to an individual called upon to pay. Nor is it necessary in order to uphold its validity that the person who is called upon to pay receives the same service as any other comparable person. What is, however, necessary to see in testing the validity of the levy is, its essential character, as to whether it satisfies the concept of fee. Considering the circumstances, we have so far mentioned, we are of opinion that the impost inherently bears within it more the concept of tax than fee. We are also of the view that the levy imposing, as it does, on a particular section of litigants, a grossly disproportionate part of the burden, is unreasonable and arbitrary.

3. Apart from that perspective, we shall now see whether there is at least a broad correlationship between the fees collected and the cost of administration of civil justice. In the judgment which was the subject matter of appeal before the Supreme Court, this court had dealt with the counter affidavit filed by the Joint Secretary Mr. Kelu Eradi, and also the supplemental counter-affidavit by a Deputy Secretary, Mr. Sivakumar. In the affidavit of Mr. Kelu Eradi, the total actual receipts for 1954-1953 were shown as Rs. 122-12 lakhs and the expenditure as Rs. 124-94 lakhs. This figure as to expenditure included Rs. 36.70 lakhs as relating to Criminal Courts, Rs. 3.57 lakhs to Presidency Magistrates' Courts, Rs. 6.26 lakhs to Law Officers of Government. Rs. 58.31. lakhs pertain to Civil and Sessions Courts. So, this item partly includes expenditure in respect of Sessions Courts. Obviously expenditure incurred by Government in payment to their Law Officers cannot be debited to the cost of administration of justice which the litigant can be required to compensate for. Law Officers render service to Government in supporting or defending their causes. It will be unreasonable to cost of civil justice. As to expenditure incurred in the administration of Criminal Justice, maintenance of law and order debit expenditure on Law officers against and its enforcement is an essential and necessary function of Government. Also, so far as civil litigants are concerned, criminal Courts including Sessions Courts and Presidency Magistrate's Courts, do not render any service to them, and the expenditure in the administration of Criminal, justice is not properly debitable to cost of administration of civil justice in courts. If Rs. 46.53 lakhs and a part of Rs. 58.81 lakhs under the head ‘Civil and Sessions Courts’ are deducted, the total net balance would be less than Rs. 78.41 lakhs, even assuming that the expenditure incurred on Administrator-General and Official Assignee can legitimately be debited against the cost of civil justice. On these figures given by Mr. Kelu Eradi, it is clear that for the year 1954-1955 there was a profit of Rs. 43.71 lakhs over the expenditure of about Rs. 78.41 lakhs.

4. Mr. Sivakumar's supplemental counter affidavit gives a different picture altogether. As we said before, in that supplemental counter affidavit there is evident: a tendency to deflate the receipts and inflate expenditure by including several new items of expenditure. These new items of expenditure claimed to have been incurred in the administration of civil justice are charges relating to Stamp Administration, Pension of officers and establishment, Stationery and Printing, Interest on capital, outlay on buildings, as well as maintenance, repairs and minor works, and lastly expenditure incurred in other organisations, including Secretariat, Directorate of Treasuries and Accounts, Madras Public Service Commission, Board of Revenue, etc, ascribable to the administration of justice. In our opinion, none of these items can properly or legitimately be debited to the cost of administration of civil justice in costs. Statements I to III appended to the supplemental counter affidavit are reproduced below:

[The Statements are printed on 4 he next 3 pages

Statement—I Receipts

(Rs. in Lakhs)

1954-1955 1954-1955 1956-1957 1956-1957 1963-1964 1963-1964 1964-1965 1964-1965

A Stamps: @ @ @ @

1. Court fees realised from sale of stamps 74 64 122 104 149 127 155 132

2. Sale of stamp copy papers 6 4 7 5 6 4 5 4

3. Deduct-Refunds -1 -1 -4 -4 -5 -5 -5 -5

B. Administration of justice 4. Sale proceeds of unclaimed and escheated property 1 - 1 - 1 - 1 -

5. Court fees realised in cash 2 2 2 2 2 2 2 2

6. General fines, fees and for feitures 40 57 83 90

7. Receipts of Official Assignee and other Miscellaneous receipts 4 4 2 3

8. Deduct-refunds -3 -2 -2 -2

Total 123 69 187 107 236 128 249 133

@ The figures shown under this column exclude

(1) Receipts not directly ascribable to the Adminstration of Justice; and

(2) Receipts relating to Criminal Courts

Sd. J. SIVAKUMAR.

Deputy Secretary to Government,

finance Department, Govt. of Madras.

Statement II—Expenditure .

(Rs. in lakhs)

54-55 54-55 @ 56-57 56-57 @ 63-64 63-64 @ 64-65 64-65 @

A. Stamps. 1. Discount on sale of Judicial stamps 3 3 5 5 3 5 5 5

2. Superintendence 1 1 1 1

3. Cost of judicial stamps 1 2 2 1

B. Administration of Justice 4. High Court 17 17 13 15 18 18 19 19

5. Law officers 6 7 9 8

6. Presidency Magistrates Courts 4 4 6 6

7. Sessions Courts (a) City Civil 1 1 2 2 3 3 3 3

(b) Mofussal Civil Sessions 37 28 37 28 44 33 45 34

(c) Copyists Establishments 4 4 4 4 6 5 7 7

(d) Process service establishment 16 16 13 13 22 22 23 23

8. Presidency Court of Small Causes 2 2 2 2 3 3 4 4

9. Criminal Courts 37 37 53 55

10. Admininistrator General and Official Trustee 2 2 2 2

Total (AB) 131 71 133 71 174 90 179 95

C. Miscellaneous: 11. Share of cost of Secretariat, Treasury and other general establishment 2

2 2 2 2 2 2 2

12. Executive Magistrates 12 4 13 4 15 5 15 5

13. Stationery charges 10 7 9 6 10 7 11 7

14. Interest on capital outlay Capital out lay till the end of 1965-1966 Rs. 133 lakhs) 6 4 6 4 7 4 8 3

15. Original works debited to Revenue account. 1 1 1 1 2 2 1 1

Repairs and maintenance 1 1 1 1 2 2 2 2

16. Pensionary charges 9 6 9 6 10 7 10 7

Total (C) 41 25 42 25 47 23 49 29

Grand Total 172 96 173 96 221 118 228 124

@ The figures shown under this column exclude;

1. Expenditure not directly ascribable to the Administration of justice, and

2. Expenditure relating to criminal courts.

Sd. J. SIVAKUMAR,

Deputy Secretary to Government,

Finance Department, Government of Madras,

Statement—II (Rs. in lakhs)

54 54 56 56 63 63 64 64

@ @ @ @

Total Receipts 123 69 187 107 236 128 249 133

Total Expenditure 172 96 175 96 221 118 228 125

Net (-) Less plus profit -49 -27 +12 +11 +15 +10 +21 +9

@ The figures under the columns exclude

1. Items not directly ascribable to the administration of justice; and

2. Items relating to criminal courts.

Even as they stand, it may be seen that except for the year 1954, the State was making a profit varying between 9 and 21 lakhs. In statement II relating to expenditure, 1 lakh is debited on account of Superintendence, 6 lakhs towards Law officers, 4 lakhs towards Presidency Magistrates courts and 37 lakhs towards criminal courts, total of Rs. 48 lakhs for the year 1954. For the years 1956, 1963 and 1964, the corresponding figures appearing in Statement II result in the total of Rs. 49 lakhs, 60 lakhs and 60 lakhs respectively for these years, and if these figures as also the figure of Rs. 41 lakhs for the year 1954 are deducted from the expenditure, there will be a corresponding increase in the profits. Though in the Statement II, the expenditure on law Officers is debited in the supplementary counter affidavit it is stated that this item has not been taken into consideration as an expenditure ascribable to the administration of Justice, which does not appear to be correct as the debits in respect of Law Officers do find a place in Statement II. Under the head of ‘Superintendence’ in Statement II is debited Rs. 1 lakh for each of the years. But in the supplemental counter affidavit it is stated that this item has been omitted from the expenditure on the judicial administration. Item 3 in statement II relates to cost of judicial stamps. It is said that this relates to actual cost of judicial stamp purchased from the Central Stamp depot, Nasik. We doubt whether this item may be debit ed against the cost of civil justice. We have no details for the same. As there are no details for the expenditure in respect of several items in statement II we had at the request of the learned Advocate General given time to Government for furnishing details, but he reported later that Government had no further details to give. As we indicated earlier, expenditure incurred on Presidency Magistrates courts and criminal courts cannot be debited against administration of civil justice. We have then in Statement II debits of Rs 2 lakhs for each of those years as for the share of cost of Secretariat, Treasury and other generals establishments, 12 lakhs, 13 lakhs, 15 lakhs and 15 lakhs as for executive Magistrates, 10 lakhs, 9 lakhs, 10 lakhs and 11 lakhs as for stationery charges, 6 lakhs, 6 lakhs, 7 lakhs and 8 lakhs towards interest on capital outlay; 1 lakh, 2 lakhs, 1 lakh and 1 lakh for original works debited to revenue account; 1 lakh, 1 lakh, 2 lakhs and 2 lakhs as for repairs and maintenance; and lastly 9 lakhs 9 lakhs, 10 lakhs and 10 lakhs towards Pensionary charges. The supplemental counter affidavit says that the cost of other establishments such as Secretariat, Treasuries, Board of Revenue, Madras Public Service Commission, of which a portion can be ascribed to the administration of justice has been worked out on the following basis, namely: for Home department in the Secretariat it has been assumed that 10% of the expenditure relates to its work in connection with administration of justice. Regarding the other Agencies, since it is not possible to arrive at an accurate figure, a modest figure of Rs. 1 lakh has been adopted as covering the entire cost. In our opinion, this head of expenditure is totally inadmissible as an item debitable to the cost of administration of justice. Court fees are levied for the purpose of meeting the expenditure incurred in the administration of civil justice in courts. We fail to see what administration of justice is involved in the business of Secretariat, Treasuries, Board of Revenue and Madras Public Service Commission. We asked for details of the expenditure on these heads, but none was forthcoming Likewise, we see no justification, for allowing debits on account of Executive Magistrates. The supplemental counter affidavit states that Executive Magistrates who include Collectors, District Revenue Officers, Revenue Divisional Officers and Tahsildars do a considerable amount of judicial work in relation to their responsibilities under the Cultivating Tenants Protection Act, Fair Rent Act and numerous other statutes. The supplemental counter affidavit affirms that 33% of the expenditure on these persons, excluding the staff, has been taken as connected with the administration of justice. The stand of the Government in our opinion, is unsupportable, and we think that this item cannot be debited against the administration of civil justice in courts. Under the head of Stationery and Printing, it is stated that part of the expenditure incurred is debitable to the administration of civil justice, but no details are forthcoming. Debit of interest on capital outlay and buildings cannot legitimately be mad e against the administration of civil justice. On a careful consideration of all aspects, we are inclined to think that this item too is not strictly debitable to the administration of civil justice. And so too, the items ‘Repairs and maintenance’. These items did not also take into account the profits which the State has made out of collection of Court Fees in the past years which could have well been utilised in the construction of these buildings for the civil judiciary and meeting the cost of maintenance thereof. For arriving at the cost of maintenance, 2.5% of the Jump sum provision made in the budget has been taken; but no details are available. In our opinion, the debit under Pension charges is not also a legitimate item to be made against the administration of civil justice in Courts. A litigant pays Court Fee on the theory that he is bound to compensate for the cost of services rendered to him in the administration of civil justice by Court, and he is not called upon to pay towards pension charges which relate to past services rendered by retired judicial officers to other litigants previously.

5. On an analysis of the foregoing statements and figures, we are clearly of opinion that even as in 1954#1511955 and the subsequent years mentioned in Statements I to III appended to the supplemental counter affidavit of Mr. Sivakumar, the State has been making profits running to several lakhs and in some years nearly half a crore of rupees over the actual cost of administration of civil justice in courts. These figures lead us to the conclusion that there was no correlation ship between receipts under the h ead of Court Fee and other head on the one band, and expenditure on the cost of administration of civil justice in courts on the other. It is, of course, true that no exact correlation is possible and a few lakhs of rupees one way or the other will make no difference. But, we find that the profits over the cost of administration of civil justice are so disproportionate and considerabls that no correlation is or can be established on the basis of the facts in the said counter affidavit and supplemental counter affidavit. On this basis also, we are of opinion that Art. 1, Sch. I to the Madras Act XIV of 1955 has to be held to be invalid.

6. We, therefore, declare Art. 1 in Sch. I to the Tamil Nadu Court Fees and Suits Valuation Act, and sub-rule (1) of Rule (1) of the High Court Fees Rules, 1956, based on Art. 1, Sch. 1 to the Madras Act XIV of 1955, to be invalid, and allow the writ petitions and applications with costs. O.S.A. No. 77 of 1973 is also accordingly allowed. No costs in it. The new Rules of 1968 will continue in force.