JUDGMENT
R.S. Narula, J.
1. This is an application of the returned candidate whose election was upheld while dismissing the opposite party’s election petition with costs. While disposing of the election petition, I fixed the fee of the present applicant’s counsel as Rs. one thousand. Except to the extent of quantum of counsel’s fee to which the applicant might have been entitled as a part of the costs awarded in his favour, the rest of the amount of costs had to be fixed by the Registrar under Rule 27(b) Chapter 4-GG, Vol. V of the Rules of this Court. Relevant part of Rule 27(b) provides:–
“If the costs have not been fixed by the designated Judge under clause (b) of Section 99(1) of the Act (Representation of the People Act) the costs shall be taxed by the Registrar………….”
While discharging his duty under the above said rule, the Registrar informed the counsel for the applicant that he was not going to allow the applicant any amount on account of counsel’s fee. The reason for adopting that course is given in the draft Memo, of Costs in the following words:–
“Counsel’s fee…………… not taxed as the fee certificate was filed during the arguments.” On the insistence of the counsel for the applicant to have the counsel’s fee included in the Memo, of Costs, the Joint Registrar put up a note dated August 1, 1973 to me for necessary orders in that respect. I passed an order on the said office note on August 2, 1973 to the effect that the application filed by the counsel for the returned candidate may be placed for Motion hearing after informing the counsel of the date fixed for the purpose. It was in pursuance of that order that this application dated July 24, 1973 was put up before me on August 14, 1973. Notice of the application was issued to the counsel for the election petitioner. The prayer made in the application is that the Memo, of Costs be amended and counsel’s fee be included therein as there is neither any statutory nor any equitable rule framed under the Representation of the People Act (hereinafter referred to as ‘the Act’) that such fees are to be included only if a fee certificate is filed by the counsel. The application has been opposed by the learned counsel for the election petitioner.
2. The relevant facts are not in dispute. No fee certificate was filed by the counsel for the respondent-applicant before the commencement of the arguments in the election petition. A fee certificate of Mr. Man Mohan Singh Librehan Advocate for the applicant showing receipt of Rupees five thousand as his fee from the returned candidate on April 16, 1973, was, however, filed before me on May 9, 1973, one day before the conclusion of the arguments of the election petitioner. Section 16 of the Bar Councils Act, 1926 provides that the High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary’s advocate upon all proceedings in the High Court or in any Court subordinate thereto. The rules incorporated in part I of Chapter 6-I of Vol. V of the Rules and Orders of this Court have been adopted under Section 16 of the Indian Bar Councils Act vide High Court Notification dated January 13, 1949, Rule 16 of those Rules is in the following words:–
“Notwithstanding anything contained in the rules of the Court and notwithstanding any order of a Judge or Judges, no fee for the appearance of any Advocate, Vakil or Attorney shall, except as in these rules hereinafter provided be allowed on taxation between party and party, or shall be included in any decree or order unless:–
(i) the Taxing Officer is satisfied that the fee was paid to the Advocate, Vakil or Attorney before the hearing ; and
(ii) unless the party claiming to have such fee allowed shall, before the hearing, file in the office of the Taxing Officer, a certificate signed by the Advocate, Vakil or Attorney as the case may be, certifying the amount of the fee or fees actually paid by or on behalf of his client to him or to any other Advocate, Vakil or Attorney in whose place he may have appeared.”
The proviso to that rule is not relevant for our purposes. The contents of such certificate have been prescribed in R. 17. The certificate filed by Mr. Man Mohan Singh Librehan Advocate is in the prescribed form and gives all the requisite particulars.
3. Mr. R. S. Mittal, the learned counsel for the election petitioner, has vehemently contested this application. He has firstly argued that the application is not competent as the powers of the Court to tax costs have been delegated by Rule 27 of Chapter 4-GG Volume V to the Registrar, I do not agree with this contention as it is open to the designated Judge to give directions for taxation of costs and to deal with the objections, if any, raised during the taxation proceedings. Such power is inherent in this Court under Section 151 of the Code of Civil Procedure which has been made applicable to proceedings under the Act by operation of Section 87 of the Act. He has secondly contended that Rule 16 which requires the filing of a fee certificate before the commencement of the hearing of a case starts with a non obstante clause and must, therefore, override all other provisions. Rule 16 would no doubt override any other rule contained in the Rules and Orders framed by the High Court and would override even an order of a Judge or Judges but would not, in my opinion, override any other law for the time being in force as the non obstante clause with which that rule begins is of a restricted nature.
4. Mr. Librehan placed reliance initially on the judgment of the Madhya Pradesh High Court in Shantilal v. Bipinlal, AIR 1964 Madh Pra 92 wherein it has been laid down in paragraph 18 of the judgment that an almost identical rule which governs taxation of costs in suits, cannot be applied for taxation of costs in an election petition, as those rules with regard to taxation of counsel’s fee are made by the Court under Section 27 of the Legal Practitioners Act, 1879 read with Article 227(3) of the Constitution and not under the Civil Procedure Code. It was on these premises that the Madhya Pradesh High Court held that the rule of that High Court requiring the filing of a fee certificate as a condition precedent for allowing counsel’s fee did not apply to the trial of election petitions under the Act. Mr. R. S. Mittal has pointed out that whereas the relevant rule with which the Madhya Pradesh High Court was confronted had been framed for the guidance of Civil Courts and could not, therefore, be applied to Election Tribunals, Rule 16 of Chapter 6-I has not been framed for the guidance of the subordinate Courts but applies to all civil proceedings in the High Court as Vol. V in which the rule is contained deals with rules relating to proceedings in the High Court and has been made under the authority of the Constitution, the Letters Patent and the Acts of the Parliament. Mr. Librehan has next relied on the judgment of H. R. Sodhi, J. (as he then was) dated October 12, 1972 in election petition No. 26 of 1962(Punj) Shiv Chand v. Dana Ram wherein the learned Judge followed the dictum of the Madhya Pradesh High Court in Shantilal’s case (supra) and held in the relevant part of the order as below:–
“Where, however, the Judge deciding the election petition himself assesses the fee of the counsel in his order and also mentions the party from whom it is payable, no question of any further enquiry by the office arises and Rule 16 cannot override the specific provisions in the Act itself. I had, under Section 99(1)(b) fixed counsel’s fee leaving the remaining costs to be worked out by the office according to rules and once costs have been fixed, the order fixing costs has to be executed in the manner provided by the Act, irrespective of the fact whether any certificate of fee has been filed or not.”
It was further observed by the learned Judge that the rule as contained in Chapter 6-I is not intended to apply to taxation of costs in an election petition.
5. Election Petition No. 2 of 1969(Punj.), Anokh Singh v. Surinder Singh was dismissed by a Division Bench of this Court (Mahajan, J. and myself) with costs. While taxing the costs to which Surinder Singh, the returned candidate was entitled, the office did not allow counsel’s fee of Rupees one thousand which had been assessed in the judgment of the Division Bench as his costs on the ground that a fee certificate had not been filed before the commencement of arguments. It was at that stage that the returned candidate filed Civil Miscellaneous No. 109-E of 1973 praying for Rupees one thousand being paid to him out of the security for costs deposited by the election-petitioner. On hearing that application after a notice to the election petitioner, I held by my order dated January 20, 1972 that the election petition having been dismissed under Section 98(a) of the Act, the returned candidate was entitled as of right to be paid by the returned candidate was entitled as of right to be paid by the election petitioner the costs incurred by the returned candidate in contesting the petition on account of the mandatory requirements of the proviso to Section 119 of the Act which states that where a petition is dismissed under clause (a) of Section 98, the returned candidate “shall be entitled to the costs incurred by him in contesting the petition and accordingly the High Court shall make an order for costs in favour of the returned candidate.” It was observed by me that the costs incurred by the returned candidate included the fee paid by him to his counsel and the only question which required consideration was whether the returned candidate did or did not, in fact, pay to his counsel the amount claimed by him or anything more than that. Mr. C.L. Lakhanpal Advocate who was appearing for the returned candidate in that case stated before me that in fact more than Rupees one thousand had been paid to him by his client. That statement was not contested by the other side. Mr. Lakhanpal also filed the requisite fee certificate during the course of arguments of that application. Though I did observe in that order that I was condoning the delay in filing the fee certificate, I directed on the basis of the above-mentioned observations that the balance of the amount of security deposited by the election petitioner should be paid to him after deducting the costs as already assessed including counsel’s fee.
6. In Election Petition No. 31 of 1972 Hem Raj v. Ramji Lal etc., an application (Civil Miscellaneous No. 66-E of 1973 dated 22-2-1973)(Punj) was made on behalf of the returned candidate praying for the inclusion of counsel’s fee in the Memo. of Costs consequent upon the dismissal of election petition despite no fee certificate having been filed by his counsel. Reliance was placed in the application on the judgment of Sodhi, J. in Shiv Chand’s case Ele. Petn. No. 26 of 1962 D/- 12-10-1972(Punj)(supra). Mahajan, J. allowed the application by his order dated May 30, 1973 in the following words:–
“Allow counsel’s fee as costs.”
Similarly in election petition No. 24 of 1972, Civil Miscellaneous No. 120-E of 1973 was filed on behalf of the returned candidate for allowing him counsel’s fee as part of the costs awarded in his favour though no fee certificate had been filed by his counsel. After hearing counsel for both sides, Sarkaria, J. allowed the application by his order dated August 17, 1973 in the following words:–
“Counsel’s fee be added to the Memo. of Costs and after deducting the costs the balance of the security be refunded to the petitioner. The costs inclusive of counsel’s fee be paid to the respondent-applicant.”
7. In the present case also the factum of at least Rupees one thousand having been paid by the returned candidate to his counsel has not been contested. The application has been opposed only on the legal grounds, referred to above. The question–
“Whether a successful party in an election petition, particularly the returned candidate against whom an election petition has been dismissed under Section 98(a) of the Act, is entitled to have the fees paid by him to his counsel taxed in the Memo. of Costs payable to him by the other party, if costs have been ordered in his favour by the Court, but if no fee certificate has been filed by his counsel.”
is of important and has already arisen in several cases and is likely to arise again in substantial number of cases in future. In order to avoid any possible divergence of opinion on this question, I think it desirable that it should be decided more authoritatively by a larger Bench. I accordingly direct that these papers may be placed before my Lord the Chief Justice for constituting a Division Bench to decide the above-mentioned question of law. September 18, 1973.
JUDGMENT OF DIVISION BENCH
DATED 1st MARCH, 1974.
R.S. Narula, J.
8. The detailed facts giving rise to this reference to Division Bench have been set out in my order, dated September 18, 1973, which may be read as a part of this judgment. As already observed by me in that order, the non obstante clause with which Rule 16 of Chapter 6-I of Volume V of the Rules and Orders of this Court begins does not override anything except the other rules framed by this Court and any order passed by a Judge or Judges in respect of the quantum of fee to be assessed in the memorandum of costs relating to any cause heard and decided by this Court. Nothing contained in Rule 16 can possibly override the provisions of the Representation of the People Act (hereinafter called the Act). A returned candidate against whom an election petition is dismissed under Section 98(a) of the Act is entitled as of right to the costs incurred by him in contesting the petition. Section 119 of the Act which makes provision to that effect enjoins on the High Court a statutory duty to make an order for costs in his favour (in favour of the returned candidate). The costs incurred by the returned candidate include counsel’s fee besides any amounts spent on court-fee, and diet money and travelling expenses of his witnesses etc. The counsel’s fee actually paid by the returned candidate can either be ascertained from a fee-certificate which may be filed by his Advocate or may be ascertained from him otherwise. Clause (b) of sub-section (1) of S. 99 of the Act authorises the Court to fix the total amount of costs payable by any party while specifying the persons by and to whom such costs have to be paid. Whereas the proviso to Section 119 has taken away the discretion vested in the Court by the purview of that section in the matter of awarding or not awarding costs to any party, the authority of the Court to fix the total amount of costs under Section 99(1)(b) has been left intact and has not been abrogated by any provision in the Act. The other rules contained in Vol. V of the Rules and Orders of this Court relate generally to the proceedings in the High Court. A separate set of rules have been framed by this Court for guidance in the matter of trial of election petitions under Part VI of the Act in exercise of the powers conferred on the High Court by clauses 27 and 35 of its Letters Patent and Section 129 of the Code of Civil Procedure. Those rules which are almost self-contained so far as the trial of election petitions is concerned have been incorporated in Chapter 4-GG of the High Court Rules and Orders Volume V Rule 27 of those Rules which deals with the matter of costs is in two parts. The provisions of Section 119 of the Act are reproduced in clause (a) of that rule. Clause (b) of Rule 27 states that if the costs have not been fixed by the designated Judge under C1. (b) of Section 99(1) of the Act, the costs shall be taxed by the Registrar within a week of the conclusion of the trial of the petition. The requirements of Rule 16 of Chapter 6-I of the Rules and Orders of this Court, Volume V, have not been incorporated in the election rules framed by this Court. Even otherwise, it appears to be plain that no rules framed by this Court can in any manner abrogate or curtail the effect of the mandatory requirement of the proviso to Section 119 of the Act. It appears to me that if the request of a returned candidate (against whom an election petition has been dismissed under Section 98(a) of the Act) for including the amount of counsel’s fee in his memorandum of costs is declined on the ground that a fee-certificate was not filed by his Advocate within time, it would amount to an infringement of the requirement of the proviso to Section 119 of the Act. Though their Lordships of the Supreme Court did not decide in so many words that the aforesaid election rules prepared by the High Court cannot affect the legal rights of the parties to an election petition, the following observations of the Supreme Court (Reddy and Goswami, JJ.) in Civil Appeal No. 419 of 1973-Satya Narain v. Dhuja Ram, decided on December 21, 1973, (reported in AIR 1974 SC 1185) significantly show that the rules framed by the High Court cannot possibly affect the rights of the parties under the Act or under the Rules made by the Central Government under the Act:–
“We may only add here that, in the absence of any provision under the Act or the rules made thereunder, the High Court Rules cannot confer upon the Registrar or the Deputy Registrar any power to permit correction or removal of defects in an election petition presented in the High Court beyond the period of limitation provided for under the Act. It may be noted that Section 169 of the Act provides that the Central Government is the authority to make rules after consulting the Election Commission and in sub-section (3) thereof the rules have to be laid before each House of Parliament in the manner provided therein. The only reference to the High Court Rules is found in Section 117 of the Act. At any rate, we do not feel called upon to pass on the High Court Rules referred to in the judgment of the High Court in this case.”
9. There is no dispute in the case before us about the amount of counsel’s fee which has to be allowed in favour of the returned candidate in case it is held that he is entitled to have the fee included in the memorandum of costs. Paragraph 2 of the application read with the prayer clause therein leaves no doubt that the returned candidate wants only Rs. 1,000/- to be included in the memorandum of costs recoverable by him from the election-petitioner on account of counsel’s fee.
10. For the forgoing reasons I would allow this application of the returned candidate and direct that the memorandum of costs prepared by the office be amended so as to include therein Rs. 1,000/- on account of expenses incurred by the returned candidate as counsel’s fee as assessed by me under Section 99(1)(b) of the Act at the time of dismissing the election petition under Section 98(a) of the Act.
D.K. Mahajan, J.
11. I agree.
12. Application allowed.