ORDER
1. These petitions under Article 226 of the Constitution, assail the constitutional vires of Item 10 of Schedule I being an appendage to the Bombay Court-fees Act, 1959.
2. To understand the question that arises for determination in these petitions, it will suffice if 1 narrate the events leading to the institution of the first petition. Petitioners in that petition claim to be the executor/executrix/trustees of the Last Will and Testament dated 5 March 1985 of Harihar Jethalal Jariwala, better known by his name on the silver screen as Sanjeev Kumar. Sanjeev Kumar died at Bombay on November 6, 1985, and, under the will aforementioned, petitioners were appointed as executors of the estate left by him. Petitioner 1 has instituted a petition for probate to the estate of said Sanjeev Kumar and that petition has the consent of petitioner 2 and the other executors. After the petition had been lodged, the office of the Original Side of this Court, calculated the amount payable vide the clause mentioned in the first paragraph, inasmuch as Section 29 of the aforementioned Act, makes it a condition precedent that until the fee mentioned in Clause 10 of the first Schedule is paid, no order entitling the petitioner to the grant of Probate is to be made, upon his/her, application for such a grant. The computation made by the office entails a burden of Rs. 6,15,814.50 ps. In the second petition the amount computed as payable is Rs. 1,94,538.75 ps. Petitioners contened that the Act is a measure to regulate “fees taken in Courts and public offices and fees taken in respect of certain matters in the State.” It is a charge taken in return for services rendered. Therefore, the charge should be commensurate to the services given in exchange therefor. It is well-known that proceedings for obtaining the Probate or Letters of Administration are mostly not contested. In any case, the contest is in no way comparable to the intensity and complexity of con tests arising in other judicial proceedings. In the matter of civil rights, though the court-fee leviable is on an ad valorem basis, the maximum leviable is Rs. 15,000/-. Moreover, in suits the percentage of fees payable comes tapering down. As against this, the impugned clause prescribes an ever increasing percent in the fee payable for obtaining probates the percentage renging from 2 1/2 to 8 3/4. There is no justifiaction for the discrimination between petitions for obtaining probateand letters of administration on the one hand and the others ranging from claims, petitions, applications and appeals on the other. The discrimination embodied in the impugned clause is violative of Article 14 of the Constitution. Respondent 1 has contested the petitions by anaffidavit-in-reply of the Superintendent of Stamps from the General Stamp Office. He seeks to justify the statutory provision, viz. Clause 10 of Schedule I. Principles underlying suits on the one hand and proceedings to obtain probate and letters of administration on the other, are said to be basically different. The difference lies in the relief that the litigants derive from the two different types of litigation. Therefore because there is an upper limit to the. fees payable in Civil suits, cannot be a ground to complain of the absence of a similar outer limit in case of persons wanting probates and letters of administration, it was not correct to say that the Act was a measure prescribing fees and not a tax. The mere fact that a fee was payable, did not mean that the State had to establish an exact cor relation ship, between the fee chargeable and the services rendered. The basis on which the fee had been charged was a prerogative of the legislature and it was not open to scrutiny unless shown to be arbitrary and violative of the Constitution. The Act was brought into force in the year 1959. Despite a gradual increase in the expenditure on administration of justice, the fees charged by way of court-fees, had remained stagnant. As a result the Stale had to meet additional expenditure on the administration of justice from the general revenue, which affected its ways and means position as also the developmental activities of the State. The impugned clause was within the legislative powers of the State. For all these reasons, it was submitted that the petitions were without substance and deserved to be dismissed.
3. Article 226 of the Constitution demarcates the distribution of legislative powers as between the Parliament and the Legislatures of the States. The impugned clause is part of a State enactment and it would therefore be necessary to turn to the State list of the VII Schedule of the Constitution. Entry 3 of the said list which is relevant for our purposes, enables the State legislature to prescribe fees taken in all Courts except the Supreme Court. The preamble to the Act makes it clear that the same is meant to consolidate and amend the law relating to “fees taken in the Courts and public offices and fees taken in respect of certain matters in the State.” Section 29 makes it incumbent on a person seeking a probate or letters of administration to pay the fee mentioned in Clause 10 of the First Schedule before an order entitling the said person to the grant of such a relief can be made. In conformity with the practice prevailing in the Testamentary Section of the office of this Court, the amount payable under the impugned clause was ascertained and the petitioners called upon to make the requisite payment. The first question to which I am going to address myself, is, whether the impost — to use a neutral word — isa fee? The matter has to be decided firstly on Jhe basis what the Act describes it to be and secondly, according to its true character. The question as to what is the meaning of the words ‘fees taken in Court’ has been considered by the Supreme Court in Government of Madras v. Zenith Lamps and Electrical Ltd., . The Court considered the historical background as also the language used in enactments dealing with recovery of court-fees and observed thus :
“It seems to us that the separate mention of fees taken in court’ in the Entries referred to above has no other significance than that they logically come under Entries dealing with administration of Justice and Courts. The draftsman has followed the scheme designed in theCourt-fees Act, 1870 of dealing with fees taken in court at one place…..It seems plain that ‘fees taken in court are not taxes, for if it were so, the word ‘taxes’ would have been’used or some other indication given…..It follows that fees taken in court’ cannot be equated to Taxes.’ If this is so, is there any essential difference between fees taken in court and other fees?…..”
Therefore, it would appear that it is no longer open to doubt that the fees recoverable under, the Act, are court-fees and that such court-fees are fees as distinct from taxes. Mr. Bora submitted that the impugned item imposes a stamp duty in respect of a document not specified in the provisions of List I relating to rates of stamp duty. The impugned clause could be said to be within the taxing power of the State vis-a-vis entry 63 of the said List. The fact that the clause is to be found in a statute dealing with the fees taken in Courts etc. would not be decisive of the matter. Learned Counsel tried to justify this submission by recourse to the language of Section 29 of the Act. It was argued that a person applying for grant of a Probate was given a document which was the culmination of a judgment in rem and that Clause 10 in fact prescribed the duty payable on the document depending upon the value of the estate to which it pertained. Countering this submission, Counsel for the petitioners points to the Act describing the impost mentioned therein as “fees.” The argument is that when the Act itself describes the impost asa ‘fee’, it is not open to look upon it as a duty by reference to the legislative competence of the State legislature. There is substance in this submission. It is reasonable to infer that an enactment relating to “fees taken in Court and public offices” would relate only to fees and not be a mixture of fees, taxes and/or duties. There is another enactment under which stamp duty could have been levied by the State legislature, and, that is Bombay Act No. LXof 1958, known as the Bombay Stamp Act, 1958. When the legislature itself has chosen to place Clause 10 in the enactment dealing with court-fees, it will not be proper to appraise the validity of the clause with reference to the competence of the State legislature under a different head. The Act has therefore to be treated as an exercise of legislative power vested in the State legislature by virtue of item No. 3 of the State List to.the Seventh Schedule.
4. The question now is whether the fee payable underthe impugned clause is violative of the Constitution. In the Zenith Lamp’s case (supra) the Supreme Court observed –
“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 suitor matter, the entirecost of the upkeep of courts and officers administering civil justice, the vexatious nature of a certain type of litigation and 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 Article 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 litigations 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 of administration of civil justice.”
This understanding of what constitutes a fee and how it should be ascertained, remains the established position reiterated ina number of decisions, viz. Sreenivasa General Traders v. State of Andhra Pradesh, ; Municipal Corporation of Delhi v. Mohd. Yasin ; Southern Pharmaceuticals and Chemicals, Trichur v. State of Kerala, ; and Om Parkash Agarwal v. Giri Raj Kishori, . What was said in the last mentioned case requires repetition because of its appropriateness to some of the submissions advanced by Mr. Bora in these petitions. The relevant passage is at para 12 of the judgment (at p. 733) and reads thus :
“It is constitutionally impermissible for any State Government to collect any amount which is not strictly of the nature of a fee in the guise of a fee. If in the guise of a fee the legislation imposes a tax it is for the Court on a scrutiny of the scheme of the levy to determine its real character. If on a true analysis of the provisions levying the amount, the Court comes to the conclusion that it is, in fact, in the nature of a tax and not a fee, its validity can be justified only by bringing it under any one of the entries in List II of the Seventh Schedule of the Constitution under which the State can levy a tax.”
As said earlier, the attempt made by Mr. Bora to bring the clause within the ambit of Entry 63 of the State List has failed. Therefore, the question now would be whether fees are commensurate with the services rendered. Judicial notice can be taken of the fact that testamentary proceedings are simple in nature involving less time and less strain upon the Courts vis-a-vis the other types of litigation which the Courts have to handle. In Writ Petition No. 1105 of 1986 the averment is that petitioner 1 has the consent of the second petitioner and other executors for obtaining the applied for probate. Very few of the applications forobtaining probates, letters of administration or succession certificates are contested. Even when there is contest in testamentary proceedings, the intensity and complexity thereof pales into insignificance when compared to the intensity and complexity that the Courts encounter when attending to the other litigations like Civil Suits, petitions under Article 226 and petitions under Marriage Acts etc. etc. Despite this Clause 10 prescribes an ascending scale of fees for persons desirous of obtaining a probate or letters of administration. The fee ranges from 21/2 to 83/4 percentum. The fee chargeable goes on increasing from slab to slab, though in one case there may be a contest and in another there may be none. It may happen that the contest be at the lowest slab, while at the highest there is none. In recent times legislatures have been given considerable latitude in the matter of fixing of fees, rates and taxes. In Delhi Municipality’s case (supra) Mr. Justice Chinnappa Reddy said –
“We learn that there is no generic difference betweena tax and a fee, though broadly a tax is a compulsory exaction as part of a common burderi without promise of any special advantages to classes of taxpayers whereasa fee is a payment for service rendered, benefit provided or privilege conferred…..It is neither necessary nor expedient to weigh too meticulously the cost of the services rendered etc. against the amount of fees collected so as to evenly balance the two. A broad correlationship is all that is necessary. Quid pro quo in the strict sense is not the one and only true index of a fee; nor is it necessarily absent in a tax.”
With all the latitude that is possible to give to the legislature, there must be a broad correlationship between the services rendered and the fee imposed. However reckoned the court-fee payable by the seekers of probate and letters of administration as compared to those wanting relief through the medium of civil suits, writ petitions etc. is exorbitant and the service rendered, is minimal. The fee paid by the other class is comparatively speaking, farless, though the strain upon the resources of the State, whether considered on the anvil of time spent or persons engaged in the performance of the task, is far more. Even the long-suffering plaintiff i.e. the person seeking relief by means of a civil suit, has relief in the form of an upper limit of Rs. 15,000/- in the fee payable. No such relief is available to the seekers of probates, for the higher value of the estate, the higher is the fee that he has to pay. The disproportionate ness of the fee prescribed by the item is writ large on its face and needs no further scrutiny. However reckoned, Clause 10 cannotbe justified as it violatesall reasonable canons for prescribing a fee payable for services to be rendered.
5. Petitioners next contend that the impugned clause discriminates as between different types of suitors and that there is no justification for this discrimination. Plaintiffs who go to Civil Courts claiming decrees are not required to pay court-fee in excess of Rs. 15,000/-. This is irrespective of the amounts claimed over and above Rs. 15/-lakhs. As against this, persons claiming probates have no such relief in the form of an upper limit to fee payable. There is no answer to this contention, except that the legislature has not thought it fit to grant relief to the seekers of probates, whereas plaintiffs in civil suits were thought deserving of such an upper limit. The discrimination is a piece of class legislation prohibited by the guarantee of equal protection of lawsembodied in Article 14 of the Constitution. On this ground also Item 10 cannot be sustained.
6. To sum up. Item 10 suffers from the vice of violation of Article 14 of the Constitution and also in that the fee chargeable there under, is out of all proportion to the value of the service rendered to the seekers of probates and letters of administration. I now come to the nature of relief to be granted to the petitioners. Item 10 of Schedule I, to the extent it does not have an upper limit corresponding to that payable by the plaintiffs seeking decrees from the Civil Courts, will have to be declared void. Until the said article is duly amended, petitioners shall not be required to pay more than the maximum payable by persons seeking decrees in civil suits i.e. Rs. 15,000/-. The office shall revise the fee payable by the petitioners in the light of what has been stated earlier. Rule in these terms made absolute, with parties being lefl to bear their own costs.