Jadunandan Prasad vs General Manager, North Eastern ... on 8 May, 1959

    Jadunandan Prasad vs General Manager, North Eastern Railway, Gorakhpur on
8/5/1959

JUDGMENT

   J.K. Tandon, J.

   1. A preliminary question has arisen, as regards the amount of court-fee
payable on the petition in this and some other connected petitions owing to the
recent amendment made by the State-Legislature in the Court Fees Act, 1870. By
the U. P. Second Amendment Act, 1958 which came into force with effect from 1st
of April 1959 the State Legislature has made a number of changes in the parent
Act as applicable to this State. One of the changes effected is in Schedule II.
Clause (e) of Article 1 of Schedule II of the Act, as it was prior to the
Amendment Act and as it is now, reads as under:

                                    Old.

                                  Amended.

   1. Application or petition. (e) When presented to a High Court : Application
or petition. (e) When presented to a High Court. (1) Under the Indian Companies
Act, 1913 (Act VII of 1913), for winding up a company. Sixty two rupees eight
annas. (1) Under the Companies Act, 1956, lor the winding up of a company. One
hundred rupees. (2) Under Section 115 ofthe Code of Civil Procedure, 1908 (Act V
of 1908) lor revision of an order. Five rupees. (2) Under Article 226 of the
Constitution, not betng for a writ in the nature of Habeas Corpus; or under
Article 227 of the Constitution Fifty rupees. (3) In any other case. Three
rupees,twelve annas. (3) For probate or letters of administration to have effect
throughout India; Twenty five rupees.

   (4) Under section 115 of the Code of Civil Procedure, 1908. for revision of
an order; and Ten rupees.

   (5) In any other case not otherwise provided for. Five rupees.

   According to the amended version which has for the first time included a
provision of court-fee to be payable on a petition under Article 226 of the
Constitution, it should bear a court-fee of Rs. 50/-. In view of it the
petitions which are being presented of late to this Court are so done with a
court-fee of Rs. 50/-. The petitioners of the instant petitions, however, have
done so upon a court-fee of Rs. 3/12/- only i. e. the amount earlier payable on
petitions generally presented to this Court. The above petitioners who claim
that a court-fee of Rs. 3/12/- still continues to be payable are challenging the
constitutionality of the U. P. Court-fees (Second Amendment) Act, 1958 as
respects the changes made in Clause (e) of Article 1 which requires a fee of Rs.
50/- to be paid on such petitions. It is this particular provision which has
been the source of controversy at the moment.

   2. For a clearer appreciation of the controversy, as also the points arising
in that connection, reference to the following provisions of the Court Fees Act,
1870 and to the Rules of Court is necessary.

   3. Chapter II of the Court Fees Act relates to fees chargeable in the High
Court. Section 3, which is in the same Chapter, contains provision, firstly, for
fees to be paid to the clerks and officers of the High Court and also for fees
to be charged in certain specified categories of proceedings initiated before
this Court. These proceedings are-

     (1) Probate of a will or letters of administration with or without the will
annexed.

     (2) Undertaking under Section 49 of the Indian Divorce Act.

     (3) Caveat.

     (4) Petition in a suit under the Native Convert's Marriage Dissolution Act,
1966.

     (5) Petition under the Indian Divorce Act etc. and

     (6) Plaint or memorandum of appeal under the Parsi Marriage and Divorce
Act, 1865.

   A fact which deserved to be noticed about these various proceedings provided
for in Section 3 is that all those proceedings are original in nature. They are
initiated directly in the High Court itself. In this aspect of Section 3, it may
be said to have made provision for charging of fees in the High Court in certain
original matters. It does not, however, include any provision for petitions
commenced under Article 226 of the Constitution.

   4. Section 4 with which the controversy here is directly concerned, is as
under:

     "No document of any of the kinds specified in the first or second schedule
to this Act annexed, as chargeable with fees, shall be filed, exhibited or
recorded in. Or shall be received or furnished by, any of the said High Courts
in any case coming before such Court in the exercise of its extra-ordinary
original Civil Jurisdiction; or in the exercise of its extraodinary original
criminal jurisdiction; or in the exercise of its jurisdiction as regards appeals
from the judgments (other than judgments passed in the exercise of the ordinary
original civil jurisdiction of the Court) of one or more judges of the said
Court, or of a division court; or in the exercise of its jurisdiction as regards
appeals from the courts subject to its superintendence; or in the exercise of
its jurisdiction as a Court of reference or revision;

     unless in respect of such document there be paid a fee of an amount not
less than that indicated by either of the said schedules as the proper fee for
such document.

     Explanation -- Where the amount of fee prescribed in the Schedules contains
any fraction of a rupee below four annas, or above four annas but below eight
annas, or above eight annas but below twelve annas, Or above twelve annas but
below one rupee, the proper fee shall be an amount rounded off to the next
higher quarter of a rupee as hereinafter appearing in the said Schedules."

   5. The only other provision in Ch. II is Section 5 which provides that when
any difference arises between the officer whose duty it is to see that any fee
is paid under Ch. II and any suitor or attorney as to the necessity of paying a
fee or the amount thereof, the question shall be re- ferred to the taxing
officer whose decision thereon shall be final. The taxing officer, however, has
discretion, where he is of the opinion that the question raised is one of
general importance, to refer it to the final decision of the Chief Justice of
the Court or of such Judge of the Court as the Chief Justice 'shall appoint
either generally or specially in this behalf. So far as this Court is concerned
the Chief Justice has declared the Joint Registrar of the Court to be the taxing
officer by a general order. An Hon'able Judge of this Court has also been
appointed to whom the question should ordinarily be referred for decision under
this section.

   6. The relevant provisions of the Rules of Court are thus. Chapter XV of the
Rules of Court, 1952 Vol. I, which relates to the original and extraordinary
original civil jurisdiction exercised by this Court used to make the following
provision in Rule 2:

     "The provisions of Section 4 of the Court-fees Act, 1870, with respect to
the payment of Court-fees in cases coming before the Court in the exercise of
its extraordinary original civil jurisdiction shall also apply to cases coming
before it in the exercise of its ordinary original civil jurisdiction except in
company, testamentary and intestate or matrimonial matters."

   This rule, however, was deleted on 5-11-1953 and a new rule, as Rule 40 as
under, was added in Ch. VIII:

     "Court-fees shall be payable in cases coming before the Court in the
exercise of its ordinary original' civil jurisdiction or in the exercise of its
jurisdiction as regards appeals from judgments passed by it in the exercise of
its ordinary civil jurisdiction to the extent to, and the manner in which they
are payable in similar classes of cases coming before it, under the provisions
of Section 4 of the Court-fees Act, 1870."

   7. Rule 40 is thus the provision which today exists in the Rules of this
Court. It obviously has been made by virtue of the authority vested in this
Court under Article 225 of the Constitution. The purpose of this rule is said to
be, at least the Standing Counsel has so claimed, that the provisions or Section
4 of the Court-fees Act, 1870 applicable to proceedings held in this Court in
the exercise of its ordinary original civil jurisdiction, as also to appeals
from judgments passed by it in the exercise of its aforementioned jurisdiction.
It will be a matter for consideration how for this rule has succeeded in
achieving its purpose or making the provisions of Section 4 applicable to
proceedings commenced under Article 226 of the Constitution.

   8. Although the question which the petitioners have raised in their petition
is that the U. P. Amending Act, 1958 is ultra vires to the extent it has made
provision for payment of fee on petitions under Article 226, this question, as
shall hereafter appear, does not require to be answered for deciding whether the
court-fees which has already been paid on these petitions is not sufficient. I
might also state just here that Sri A. P. Pandey, who led the discussion in
these petitions, has conceded that a court-fee of Rs. 5/- and not Rs. 3/12/-will
be paid by the petitioners. The petitioners have offered to make up also the
deficiency if any, to that extent. This order has, therefore, proceeded on the
assumption that fee of Rs. 5/-is chargeable on these petitions.

   9. As might have been noticed from the provisions of Section 4 that section
has made provision for charging of Court-fee on documents of the kinds specified
in the first or second schedule to the Act if and when they should come before
this Court in the exercise of -

     (1) its extraordinary original civil jurisdiction;

     (2) its extraordinary original criminal jurisdiction;

     (3) its jurisdiction as regards appeals from the judgments (other than
judgments passed in the exercise of the ordinary original civil jurisdiction of
the Court) of one or more Judges of this Court or of a Division Bench;

     (4) its jurisdiction as regards appeals from the courts subject to its
Superintendence; and

     (5) its jurisdiction as a Court of reference of revision.

   In view, therefore, of the fact that Section 4 is restricted in its
application to certain specified classes of jurisdictions only, it cannot avail
for requiring court-fee to be charged on documents which might come before the
Court in the exercise of its other jurisdictions. Already some such proceedings
are governed by Section 3; in their cases the court-fee even though provided in
the first or the second Schedule is chargeable by virtue of that section and not
Section 4. The fact which cannot, therefore, be disputed is that Section 4 of
the Court-fees Act does not provide for the charging of the fee generally in all
cases coming before a High Court but it does so for specified category of cases
only. In order, however, that a fee may be chargeable on any document, whether
under Section 3 of under Section 4, the document must fulfil the conditions of
those sections.

   10. Another fact which also may be mention ed at this very place is that the
U. P. Amendment Act of 1958 while it has amended Clause (e) of Article 1 of
Schedule II of the Court-fees Act, 1870 has not made any changes in Section 4
itself. This section has remained in the form and shape it was prior to this
amendment.

   11. I may now immediately consider the question whether the liability of a
suitor to pay court-fee on any document arises under these sections or does it
do so by virtue of anything in the Schedules to which these sections refer. The
Schedules merely lay down the nature of documents and the rates at which fee
shall be calculated on them; so far as the liability for the payment of court-
fee goes, it does not arise from the Schedules but arises under the substantive
provisions contained in Sections 3 and 4. These are the charging sections and as
their language clearly shows, and the Schedules simply provide the rates etc.,
but the liability is created under them alone.

   12. For deciding, therefere, whether any particular document is chargeable or
not with any fee the question will need to be considered in the setting of these
sections. No amount of alteration in the Schedules will make a document liable
to court-fee if it fails to be attracted by these sections. The question which
therefore, has to be judged is whether a petition under Article 226 of the
Constitution is a document chargeable with any fee because it fulfilled the
conditions necessary for the application of Section 4.

   13. But before I proceed to consider the above question I would like to point
out that for the purposes of determining the liability to pay court-fee under
Rule 40 of Ch. VIII of the Rules of Court also it will be necessary to determine
the same question once again, namely, that it is a document chargeable under
Section 4. This is because this rule also contemplates that court-fee shall be
payable to the extent and in the manner in which such fee is payable in similar
classes of cases coming before the Court under Section 4. If, therefore, any
particular case or class of cases cannot indeed come before this Court under
Section 4 -- since the liability will be able to be fixed and found from
liability of similar cases under Section 4 -- Rule 40 will not authorise the
charging of any fee if a similar case cannot arise under Section 4. In Order
that this rule may authorise the charging of court-fee on any document it is
imperative that a similar document is chargeable with the fee under Section 4.
In other words, it must be a document which can come before this Court in any of
the jurisdictions exercisable under that section. Once again, therefore the
deciding factor is whether a petition under Article 226 of the Constitution is a
document which can be made to be chargeable with court-fee under Section 4.

   14. A preliminary objection that has been urged on behalf of the State might
be disposed of at this very place. Section 5 of the Court-fees Act has laid down
the procedure to be adopted for settling the difference as to necessity or
amount of court-fee chargeable under Ch. II of the Act. It is urged that in view
of it, since a question as to the amount of court-fee chargeable has arisen the
stamp reporter, whose duty it is to see that proper fee is paid, should be asked
to report and should there be a difference between him and the petitioners the
matter should go to the taxing officer whose decision shall be final unless the
latter should decide to refer the matter to the Chief Justice or the Taxing
Judge. The contention in other words is that this matter cannot be gone into by
me but it must first go to the stamp reporter and thereafter if need be, to
follow the course laid down in Section 5.

   15. There are two sides of this question: one is with reference to Section 5
itself and the other is with reference to Rule 3 of Ch. XI of the Rules of
Court. Section 5 as its language clearly points out applies to cases where the
difference arises between a party and the officer whose duty it is to see that
any fee payable under Ch. II of the Act as to the necessity of paying a fee or
the amount thereof. It is implicit in the section that the difference should
arise as respects a case which is claimed to be chargeable with court-fee under
Ch. II. The section will have 110 application to a ease where the fee happens or
is ultimately held to be chargeable under any other law. The procedure laid down
in it will be necessary to be followed in those cases only where a document is
or is claimed to be chargeable with court-fee under Ch. II of the Act. Should
any document be not chargeable with court-fee under Ch. II Section 5 can-not
interpose nor it will be necessary to refer the matter to the taxing officer or
to the Taxing Judge under its provisions. Once again, therefore, it is essential
for answering the preliminary point that the document, i. e., a petition under
Article 226, is found to be chargeable with court-fee under Ch. II.

   16. Coming to Rule 3 of Ch. XI of the Rules of Court, it does not in terms
apply to a petition under Article 226 of the Constitution. It is applicable to
memorandum of appeal or objections under Rule 22 or 26 of Order 41 C. P. C. and
to applications for revision. These documents alone are required to be
accompanied by a report of the Stamp Reporter. My attention was also invited in
this connection to Rule 6 of the same Chapter but ones again it has no
application to the present farts. This rule lays down the procedure to be
adopted in cases of insufficiently stamped documents when they are found on the
record of any first appeal received by this Court under Rule 5. It further
appears to me that none of the rules makes it obligatory on this Court to ask
the report of the stamp reporter, much less that a failure to do so will result
in illegality or impropriety. The Court is certainly entitled if it so desires
or considers appropriate to obtain the stamp reporter's report but it is not
bound to do so. As a matter of fact the practice also in this Court is that
petitions under Article 226 of the Constitution are not presented to the stamp
reporter for his report. They are directly made to the Hon'ble Judge or the
Bench authorised to receive them.

   17. It will, therefore, appear that the success of the preliminary objection
also is dependent on the answer whether a petition under Article 226 is
chargeable with, court-fees under Ch. II of the Court-fees Act.

   18. I, therefore, turn now to consider the question, i. e., whether a
petition under the above Article of the Constitution can by any means be said to
come before this Court under Section 4 of the Court-fees Act. This section is
applicable to cases coming before it in the exercise of its extraordinary
original civil jurisdiction or its extraordinary original criminal jurisdiction
or in exercise o its appellate or revision jurisdiction or as a court of
reference. The section is not attracted in a case coming before the Court in the
exercise of its ordinary original civil jurisdiction, to a few of which Section
3 is applicable. But even this section, i. e., Section 3 does not apply to cases
coming before the Court in the exercise of its jurisdiction under Article 226 of
the Constitution. The learned Standing Counsel does not contest the proposition
that a case belonging to the Ordinary Original Jurisdiction of the Court is not
affected by Section 4. What however, is contended is that a case arising out of
a petition under Article 226 of the Constitution comes before the Court not in
the exercise of its Ordinary Original Jurisdiction but of its extraordinary
original civil jurisdiction. With that assumption he has urged that Section 4
will be applicable to it by virtue of its applicability to cases on the
extraordinary original side. The petitioners dispute that a case arising on a
petition presented under Article 226 of the Constitution comes before the Court
in the exercise of extraordinary original jurisdiction. According to them it
comes before it in the exercise of the ordinary original jurisdiction.

   19. The Court-fees Act does not define the expression 'ordinary original
jurisdiction' or 'extraordinary original jurisdiction'. Naturally, therefore,
the Letters Patent by which the Allahabad High Court was originally established
and the U. P. High Courts (Amalgamation) Order, 1948 by which the present Court
was established have to be consulted. The latter has in para 7 laid down that
the new High Court shall have all such original, appellate and other
jurisdiction as, under the law in force immediately before the appointed day,
was exercisable by the High Courts. In view of it the Letters Patent by which
the earstwhile High Court was established have indeed to be examined for finding
the powers and the Jurisdiction of this Court. Para _9 of the Letters Patent
describes the Civil jurisdiction of the earstwhile Court and likewise paras 10,
25 and 26 describe the appellate, testamentary, intestate and matrimonial
jurisdictions. In the same way para 15 describes its criminal jurisdiction. Para
9 by which the civil jurisdiction was described made no mention of ordinary
original jurisdiction to belong to this Court, though it provided that the Court
could remove and try and determine as a court of extra-ordinary original
jurisdiction any suit being or falling within the jurisdiction of any court
subject to its superintendence. The necessary implication of the above provision
was that the original jurisdiction ordinarily vested in respect of those matters
in the courts subject to its superintendence though the Court had power to
remove and try those suits itself when it decided to proceed to try any such
suit by so removing before it the trial was held in the exercise of extra-
ordinary original jurisdiction. One clear distinction which, therefore,
distinguished extraordinary original jurisdiction was that the jurisdiction to
try the particular case vested in a subordinate court but it was exercisable by
removing it on its file and then trying it. In other words a proceeding under
the extraordinary original jurisdiction must be upon a case instituted and
pending before another court and not upon a case which is commenced and can be
commenced in the High Court itself.

   20. On the criminal side the Letters Patent made no provision for the
exercise of ordinary criminal jurisdiction except in respect of certain
categories of persons, which, however, is no longer relevant. On this side too,
therefore, the jurisdiction exercisable by the earstwhile High Court was, as
regards of holding of original trials, extraordinary original jurisdiction.
Ordinary original jurisdiction did not belong to it except for the limited cases
referred to above.

   21. From the above provisions it was, to my mind, clear that the
extraordinary original jurisdiction which vested in the earstwhile Court and was
in 1948 continued in the New High Court is essentially a jurisdiction
exercisable in respect of cases which are not commenced before it but are
actually done so in subordinate courts. It is a jurisdiction which in order that
it may be exercised require the removing of the case from the subordinate courts
and then trying it. Any case which under the law has to be commenced initially
too in the High Court is tried by it in the exercise of its ordinary original
jurisdiction. The existence of a subordinate court of competent jurisdiction to
try the matter is necessary for judging, even though the trial held in this
Court is a original trial that the jurisdiction which is exercised by this Court
is extraordinary original jurisdiction.

   22. Bearing the above distinction in mind the High Court's jurisdiction to
issue writs and directions under Article 226 of the Constitution is a case
coming before it in the exercise of ordinary original jurisdiction. These
proceedings cannot be commenced in any court within this State except the High
Court itself. Any question of removing them from any subordinate court cannot
arise. They have to be instituted in this Court and are tried here. I aim
consequently of the view that cases under the said Article of Constitution do
not fall within the scope of Section 4 of the Court-fees Act which does not
relate to matters coming before this Court in the exercise of ordinary original
jurisdiction. In the case of State of U. P. v. Mahendra Pratap, AIR 1956 All
585, the question arose in connection with a special appeal from the judgment of
a single Judge whether the time occupied in obtaining the copy of the formal
order that it prepared in pursuance of it can be excluded in computing the
period of limitation prescribed for an appeal. The learned Judges held that such
period was able to be excluded and observed with reference to the proceeding
commenced before them that :

     "The petition was filed in the present case in this Court in the exercise
of its ordinary original civil jurisdiction. Under the Letters Patent ordinary
original civil jurisdiction was confined to Probate, matrimonial and company
matters. When the Letters Patent were abolished this jurisdiction was preserved
by Clause (9) of the U. P. High Courts (Amalgamation) Order, 1948.

     When the Constitution came into force a special jurisdiction was conferred
on this Court by Article 226 to entertain writs. From that date the ordinary
original civil jurisdiction was further extended so as to include the hearing of
writs."

   23. The learned Judges accordingly held that proceedings started in this
Court upon a petition under Article 226 of the Constitution are in the exercise
of its ordinary original civil jurisdiction.

   24. In the case of Ramayya v. State of Madras, AIR 1952 Mad 300, it was again
held that the jurisdiction of the High Court under Article 226 of the
Constitution was in the nature of its ordinary original civil jurisdiction.

   25. The exact nature of the jurisdiction exercisable under Article 226 came
up for consideration in Budge Budge Municipality v. Mongru Mia, AIR 1953 Cal
433. It was pointed out in that case that Article 226 empowered the High Courts
'to give relief in a new form and in accordance with a more direct procedure.'
In other words the High Courts were vested with a new remedy which in the past
had to be redressed in other ways. The learned Judges further held in this case
referring to the argument advanced before them that the jurisdiction under
Article 225 was revisional, following the observation of the Privy Council in
Hamid Hasan v. Banwarilal Roy, AIR 1947 PC 90, that

     "The issue of high prerogative writs was exercise of original jurisdiction.
The writs contemplated by Article 226 are of the same nature and it is also
clear that whatever may be the nature of the jurisdiction involved in the issue
of the writs, the same will be the nature of the jurisdiction as respects the
issue of directions or orders. In England also, the issue of the prerogative
writs is treated as a matter of original jurisdiction (Halsbury, Hailsham
Edition Vol. 9 page 701). It is, however, not original in the case of the
Presidency High Courts, in the limited and technical sense of the ordinary
original civil jurisdiction of the Letters Patent which carries certain
territorial limits, but it is original as distinguished from appellate. The
jurisdiction cannot be revisional, because it is not concerned With revising any
order of a Court subordinate to the High Court, as contemplated by Section 115,
Civil P. C., nor does it appertain to the general power of superintendence
conferred by Section 107, Government of India Act, now Article 227."

   26. On behalf of the State reliance, however, was placed on the decision of
Andhra Pradesh reported in Satyanarayanamurti v. Income-tax Appellate Tribunal,
"(S) AIR 1957 Andh. Era. 123. This was a case directed against a certain order
passed by the Income-tax Tribunal situate at Telangana in the earstwhile State
of Hyderabad. The question arose as to the amount of fee payable on a petition
under Article 226 and one of the points which arose for decision was whether the
jurisdiction in respect of it was ordinary original jurisdiction or
extraordinary original jurisdiction. We are familiar with the fact that prior to
the Constitution the High Courts at Madras, Bombay and Calcutta alone possessed
ordinary original jurisdiction which was exercisable within certain limited
territories. Telangana was admittedly situated beyond those territories. It was
contended that the ordinary original jurisdiction was not exercisable outside
those territories. It was in this context that the learned Judge observed that
the jurisdiction of the Court under Article 226 was in the nature of
extraordinary original jurisdiction. I do not think it can be accepted as
authority in support of the proposition that the jurisdiction exercised by this
Court while hearing petitions under Article 226 of the Constitution is
extraordinary original jurisdiction in the sense that expression has been used
in Section 4 of the Court-fees Act 1870. The expression 'extraordinary original
jurisdiction' found in this section has been used as explained above and not in
the sense in which it was upheld in the Andhra Pradesh case.

   27. From the above discussion it was clear that the jurisdiction belonging to
this Court by virtue of Article 226 is ordinary original jurisdiction;
consequently the cases coming before it under that Article are in the exercise
of that jurisdiction. Section 4 of the Court-fees Act which docs not apply to
cases coming before the Court in the exercise of that jurisdiction will not
avail the State in requiring court-fee to be charged on these petitions.

   28. The next question is whether Rule 40 of the Rules of Court has made
court-fee to be chargeable. Having found that Section 4 does not make provision
for charging of fee in the exercise of ordinary original jurisdiction, it does
so for cases coming before it under extraordinary original jurisdiction -- a
case upon a petition under Article 226 of the Constitution cannot come before it
under that section. Since the above rule has only provided that the court-fee to
he paid in the exercise of original jurisdiction would he that payable in
similar classes of cases under Section 4 of the Court-fees Act, it is incumbent
before any fee can be made payable under its provisions that some fee is payable
on a similar case which can come before this Court under Section 4 of the Court-
fees Act. If, however, a similar case cannot come before this Court under that
section this rule will not help in charging any fee on these documents. It has
already been noticed above that a case under Article 226 of the Constitution
cannot come before the Court in any of the jurisdictions referred to in Section
4. The condition contemplated by the rule is thus not fulfilled.

   29. It was, however, contended that the State (Legislature has by amending
Schedule II made specific provision with regard to cases under Article 226;
therefore, a case under Article 226 can be said to come under Section 4 of the
Court-fees Act. I do not think this argument is correct. As earlier pointed out
this Schedule contains a description only of the documents and the rate at which
fee may be charged on them. The liability for the court-fee to be charged arises
not under the Schedule but under substantive provision contained in Section 4,
the Schedule can be of use to support the above contention only if Section 4
also provided fee to be charged in the exercise of the particular class of
jurisdiction in which such cases actually come before it.

   30. There is another difficulty too in accepting this contention. The powers
and jurisdiction of this Court are contained in Articles 225, 226 227 and 228 of
the Constitution. Rule 40 itself has been made in exercise of its power under
Article 255. At the time when this rule was made Schedule II of the Court Fees
Act did not contain the present provision prescribing fee to be charged on
petitions under Article 226. The question may, therefore, arise whether the
above amendment has enlarged the scope of Rule 40 in which admittedly no
corresponding change has been made. The important facts in this connection are
that the rule making power belongs to this Court. The State Legislature does not
possess that power though the jurisdiction under Section 225 is subject to any
law made by the appropriate Legislature. For declaring the liability to pay
court-fee under Rule 40, the liability must be judged from the provisions of the
rule itself. The rule however, does not contain such a provision, and Section 4,
Court Fees Act, by virtue of which such a provision can be said to exist in it
has been found not to be helpful in that respect. Once again, therefore, I am of
the opinion that Rule 40 does not impose any liability for enhanced fees to be
charged.

   31. It followed from the foregoing discussion that the Court Fees Act despite
the amendment made by the U. P. Court Fees (Second Amendment) Act, 1958 does not
render petitions under Article 226 of the Constitution to be chargeable with the
fee of Rs. 50/-, they are, on the other hand, chargeable with a fee of Rs. 5/-.
In view of it the question as respects the vires of the amending Act is not
necessary to be considered.

   32. This petition may be listed for admission after the deficiency, if any,
has been made good in the light of this order.

   (In the absence of Tandon J., the judgment was pronounced under Sub-rule (3)
of Rule 1 of Ch. VII of the Rules of Court, by Verma, J.).