IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 18330 of 2006(F)
1. M.LEONARD ASHOK,
... Petitioner
Vs
1. COMMERCIAL TAX OFFICER-I, CHITTUR.
... Respondent
2. DEPUTY COMMISSIONER, COMMERCIAL TAXES,
3. DEPUTY TAHSILDAR (RR), CHITTUR,
For Petitioner :SRI.N.MURALEEDHARAN NAIR
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.V.K.BALI
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
Dated :20/12/2006
O R D E R
V.K.BALI, C.J.,
KURIAN JOSEPH &
K.BALAKRISHNAN NAIR,JJ.
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W.P(C)No.18330 of 2006
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Dated this the 20th day of December, 2006
JUDGMENT
Kurian Joseph,J.
What is the court fee to be paid in a writ petition challenging
several orders on the same set of facts and on same grounds is the
question to be considered in this case. The matter was placed before us
by reference order dated 28th July 2006 of the Division Bench. It
would be profitable to refer to the factual matrix in order to appreciate
the issue. Petitioner is an assessee under the provisions of the Kerala
Value Added Tax Act, 2003. According to him on account of
continuous loss he had stopped production during June 2005 upon due
intimation. On account of the stoppage of production statutory
monthly returns were not filed. It is the contention of the petitioner
that though there was due intimation regarding the closure of business,
notice on the proposal to levy penalty was issued in the same address
and thereafter penalty orders were passed for failure to file monthly
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returns for the months of April 2005 to February 2006. The orders are
marked as Exts.P1 to P11. According to the petitioner the penalty
orders were issued in violation of the procedure under Section 67 of the
Act, for want of notice. Aggrieved by Exts.P1 to P11 petitioner has
filed revision petitions and also stay petitions which are marked as
Exts.P14 to P35 and the same are pending before the second
respondent. In the meanwhile as per Ext.P36 recovery steps were
initiated and hence the writ petition. When the writ petition came up
for admission the learned Single Judge felt that since there is challenge
on 11 penalty orders, the cause of action being multifarious, the court
fee should be paid in respect of each cause of action as held by this
court in Writ Appeal No.619/1989 and thereafter in an unregistered
writ petition by another Division Bench in the order dated 6-11-1989
wherein the view taken was that when different proceedings are
challenged in one writ petition, the petitioner is bound to pay separate
court fee in respect of each of the proceedings. In both cases
proceedings under the Kerala General Sales-tax Act were under
challenge. The only difference is that in the instant case it is monthly
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returns whereas in the cases referred to above it is separate assessment
order of each year. According to the learned single Judge despite the
2003 amendment in the Kerala Court Fees and Suits Valuation Act
prescribing Rs.100/- per petitioner for the writ petition, when different
and distinct proceedings are challenged, the petitioner should pay court
fee in respect of each of the proceedings. The Division Bench in the
order under reference noted that there is another Bench decision of this
court in Somanathan v. State of Kerala, 2003 (3) KLT 1148 wherein it
was held that on interlocutory applications when more than one
petitioner joins in a writ petition, only one set of consolidated court fee
need be paid and there need not be court fee per petitioner. Inter alia it
was also noted that as the 2003 Amending Act used the expression ‘per
petitioner’ as far as an original petition filed in the High Court is
concerned, even when multifarious reliefs are clubbed in the writ
petition the court fee is to be reckoned not in respect of the cause of
action but counted in terms of the number of petitioners. The Division
Bench which referred the matter for consideration by the Full Bench is
of the opinion that “a view possible is that petitioner ought to have
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challenged each penalty order by filing separate writ petition but since
common question of law is available, he can be allowed to file one writ
petition but separate set of court fees should be paid as if separate
petitions are filed challenging each penalty order. Since this is a matter
of importance, we are of the opinion that, it should be decided by a
larger bench of this Court, and hence, we adjourn the case and place
before the Honourable the Chief Justice for appropriate orders.”
2. A litigant is required to pay court fee in view of the special
services rendered to him by the State Government in the matter of
adjudication of his grievances. Under Entry 3 of list 2 of Schedule VII
of the Constitution of India it is for the State Legislature to prescribe
the court fee in the High Court and other courts. There has to be a
broad co-relationship with the fees collected and the cost of
administration of justice. The value of the subject matter of the
dispute, the procedure involved in the adjudication, the establishment
expenses etc. are some of the relevant matters in fixing the court fee.
3. The Kerala Court Fees and Suits Valuation Act, 1959 (Act 10
of 1960) was enacted to amend and consolidate the law relating to
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Court Fees and Valuation of Suits in the State of Kerala. As per
Section 21 “the fee payable under this Act shall be determined or
computed in accordance with the provisions of this Chapter, (Chapter
IV) Chapter VI, Chapter IX and Schedules I and II.” Article 11 alone
deals with the court fee in respect of the original petition in the High
Court. Under Article 11 (l), original petitions not otherwise provided
for when filed in the High Court, the court fee payable is Rs.100/- per
petitioner. Prior to 5-12-1990 it was only Rs.25/- and in between till
2003 there was no fees. There was no stipulation regarding the fee
payable by each petitioner. Article 11 (r) of Schedule II of the Act
prior to its omission with effect from 5-12-1990 read as follows:-
“Petition to the High Court under Art.226 of
the Constitution for a writ other than the writ of
Habeas Corpus or a petition under Art.227 of
the Constitution. Twentyfive rupees”
Though the State intended to re-introduce the provision of court fee for
writ petitions, the same was done only by amendment to the rate as
provided under Article 11(l). The provision reads as follows:-
“11(l) Original Petitions not otherwise provided
for when filed in the High Court One hundred rupees
per petitioner.”
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Article 11(t) reads as follows:-
“11(t) Application or petition presented to
the High Court and not otherwise
specifically provided for … Ten rupees”.
Prior to 2003 it was Rs.2/-. In the Bench decision in Somanathan v.
State of Kerala (supra) it is held that the application or petition referred
to in Article 11(t) is the interlocutory application and the court fee
regarding original petition (writ petition) is to be governed by Article
11(l)(iii). In Radhamma v. Srivasthava, (2003 (3) KLT 916) it is also
held that for contempt of court cases irrespective of the number of
petitioners the court fee payable is only Rs.100/-.
4. Under Schedule II of the Court Fees and Suits Valuation Act,
in contra distinction to all other Articles, Article 11(l)(iii) alone
stipulates the fee as payable per petitioner. As per Section 21 of the
Act the court fee payable is in accordance with the provisions of
Chapter IV, Chapter VI, Chapter IX and Schedules only. Chapter IV
deals with suits, Chapter VI deals with Probate, Letters of
administration and Certificates of administration, Chapter IX provides
for certain miscellaneous provisions regarding stamp, penalty, rule
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making power of the High Court, Government etc. Schedule I deals
with ad valorem fees. Schedule II alone provides for the fees payable
in a writ petition. It would be profitable to note that Article 11(l) is a
residuary provision providing for original petitions not otherwise
provided for in Schedule II. As noted above Article 11(r) omitted by
Act 6 of 1999 was not re-introduced by the Amendment Act of 2003.
Article 11(r) as it originally stood specifically provided for writ
petition under Articles 226 and 227 of the Constitution of India and the
fee payable was Rs.25/-. It was in that context the earlier Division
Bench of this court held that in respect of separate cause of action when
distinct and different reliefs are sought in a writ petition, the court fee
payable is at the rate of Rs.25/- per cause of action. The Legislature
obviously did not intend to retain the concept. A new concept was
introduced by the Amendment Act of 2003 prescribing that in respect
of writ petitions in the High Court, the court fee payable is only
Rs.100/- per petitioner.
5. The Kerala High Court Act 1958 was enacted to make
provision regulating the business and exercise of the powers of the
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High Court of the State of Kerala. Rules of the High Court of Kerala
1971 were framed in exercise of the powers conferred under Article
225 of the Constitution of India, Section 122 of the Code of Civil
Procedure, by the High Court. Rule 146 deals with the contents of an
original petition which reads as follows:-
“146. Contents of the applications. — Every
application shall set out the provision of law under which
it is made, the name and description of the petitioner and
the respondent, a clear and concise statement of facts, the
grounds on which the relief is sought and shall be signed
by petitioner and by his Advocate, if he has appointed
one, as in Form No.10.
Provided that no petition shall be entertained by the
Registry unless it contains a statement as to whether the
petitioner had filed any petition seeking similar reliefs in
respect of the same subject matter earlier and if so, the
result thereof.”
Rule 147 A permits more than one petitioner to join in a single writ
petition on condition that each petitioner should pay court fee as
prescribed under Schedule II of the Kerala Court Fees and Suits
Valuation Act,1959. The Rule reads as follows:-
“147A. More persons than one may join in
one Writ Petition as petitioners in whom any right to
relief in respect of or arising out of the same act or
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transaction or series of acts or transactions is alleged
to exist, whether jointly, severally or in the
alternative, where, if such persons present separate
Writ Petitions, any common question of law or fact
would arise provided that each person joining in
such Writ Petition shall pay the court fee payable
under Article 11 (4) of Schedule II of the Kerala
Court Fees and Suits Valuation Act, as if each of
them had filed a separate Writ Petition.”
6. The learned Special Government Pleader contends that
in view of Section 6 of the Court Fees and Suits Valuation Act when an
original petition embraces two or more distinct or different causes of
action and separate reliefs are sought based on them, court fee should
be paid in respect of each cause of action. The section reads as
follows:-
“6. Multifarious suits. – (1) In any suit in which
separate and distinct reliefs are sought based on the
same cause of action, the plaint shall be chargeable
with a fee on the aggregate value of the reliefs:
Provided that, if a relief is sought only as
ancillary too the main relief, the plaint shall be
chargeable only on the value of the main reliefs.
(2) Where more reliefs than one based on the
same cause of action are sought in the alternative in
any suit, the plaint shall be chargeable with the
highest of the fees leviable in respect of any one of
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the reliefs.
(3) Where a suit embraces two or more distinct
and different causes of action and separate reliefs are
sought based on them, either alternatively or
cumulatively, the plaint shall be chargeable with the
aggregate amount of the fees with which plaints
would be chargeable under this Act if separate suits
were instituted in respect of the several causes of
action:
Provided that, where the causes of action in
respect of reliefs claimed alternatively against the
same person arise out of the same transaction, the
plaint shall be chargeable only with the highest of the
fees chargeable on them.
Nothing in the sub-section shall be deemed to
affect any power conferred upon a Court under Rule 6
of Order II of the Code of Civil Procedure, 1908
(Central Act V of 1908).
(4) The provisions of this section shall apply
mutatis mutandis to memoranda of appeals,
applications, petitions and written statements.
Explanation. — For the purpose of this section, a
suit for possession of immovable property and for
mesne profits shall be deemed to be based on the
same cause of action.”
At the outset it has to be noted that the provision deals with only suits
and not original petitions in the High Court. The expression ‘petition’
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under Section 6(4) is intended to provide for petitions filed in the suit
and not an original petition. The learned Government Pleader invited
our attention to the interpretation given to the section under the
provisions of the Madras Court Fees and Suits Valuation Act, 1955.
Section 6 herein is identically worded. A learned single Judge of the
Madras High Court in R.Sethupathi v. The State, AIR 1957 Madras
570, observed that the petitioner referred to in Section 6(4) would
include writ petitions also. We are afraid the interpretation does not
reflect the correct position in law. It has to be noted that the court fee
payable in a suit is ad valorem. Hence only it is stipulated in Section 6
(3) that where a suit embraces two or more different and distinct causes
of action and separate reliefs are sought based on them, the plaint
should be valued on the aggregate amount of plaint claim for the
purpose of court fees. It is also to be noted that under the Madras
Court Fees and Suits Valuation Act, 1955, the court fee prescribed
under Appendix II, Article 11(l) (iii) in respect of original petitions not
otherwise provided for is only Rs.20/- at the relevant time. There is no
stipulation in the Schedule regarding the fees to be paid by each
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petitioner when more than one person join in a writ petition. Under the
Kerala Act the scheme is different. In the matter of payment of court
fee in a writ petition the same is to be computed in terms of the
number of petitioners in a writ petition. There is no stipulation in the
Schedule or in the High Court Rules with regard to payment of court
fee in respect of each cause of action. That does not mean that a writ
petitioner can consolidate all his grievances in a bundle of facts and file
one writ petition. It would only mean that in a writ petition based on
the same set of facts and on the very same question of law a writ
petitioner need pay only one set of court fee, namely Rs.100/-. The
facts in the instant case are almost identical to that of the case
considered by the Supreme Court in Chandra Bhan Gosain v. State of
Orissa, AIR 1967 SC 767, wherein it has been held that in a petition
under Article 226 challenging the validity of various assessment orders
there was only one proceeding and hence in the appeal to the Supreme
Court there need only be one set of court fee.
7. In this context it would also be profitable to refer to the
contents of Form No.10 prescribed under Rule 146 of the Rules of the
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High Court of Kerala in the matter of original petitions. The format
reads as follows:-
“Form No.10 (Rule 146)
In the High Court of Judicature, Kerala
(Special Original Jurisdiction)
Original Petition No…………of 19…..
BETWEEN
AB………..Petitioner
And
C.D. ……..Respondent
Petition under Article 226 of the Constitution of India. The
petitioner above named states as follows:
1. The petitioner is (give description and address). The address
of the petitioner for service of all notices is…….
2. The respondent is (give description and address)
3.*[Here set out the facts].
4. (Here set out the grounds for relief)
5. For the reasons set out above and in the affidavit filed
herewith the petitioner prays that (set out the reliefs sought) **
[including the interim reliefs].
(Sd) Petitioner.
Date...... (Sd) Advocate for petitioner."
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The Form also indicates that even if there are several reliefs, there need
only be one writ petition in case the reliefs arise out of the same set of
facts and rest on same set of grounds.
8. One of the reliefs prayed for in the writ petition is a
direction to the second respondent to dispose of Ext.P14 to P24
revision petitions filed against Exts.P1 to P11 orders of penalty. The
main ground in the writ petition is that the impugned orders have been
passed without notice to the petitioner, in violation of the procedure
prescribed under Section 67 of the Kerala Value Added Tax Act 2003.
According to the petitioner, as soon as he received notice he has taken
steps under Section 22 of the Act and hence he is not liable to be
visited with any penalty. Since appreciation of facts is also involved in
the case it is only appropriate that the statutory authority considers the
revision petitions. Accordingly we direct the second respondent to
consider and dispose of Exts.P14 to P24 revision petitions
expeditiously, with notice and opportunity for hearing to the petitioner.
Pending disposal of the revision petitions, the second respondent shall
consider and pass orders on Exts.P25 to P35 stay petitions within one
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month from today. Till such time, the recovery steps pursuant to
Ext.P36 demand notice will be kept in abeyance.
The writ petition is disposed of as above.
(V.K.BALI, CHIEF JUSTICE)
(KURIAN JOSEPH, JUDGE)
(K.BALAKRISHNAN NAIR JUDGE)
ahg.