*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th August, 2014
+ W.P.(C) 2495/2013
ARMED FORCES TRIBUNAL (PB) BAR ASSOCIATION
AND ANR ..... Petitioners
Through: Mr. V.S. Tomar, Advocate.
Versus
UNION OF INDIA AND ANR ..... Respondents
Through: Mr. A.P. Singh with Mr. Rajiv Aneja, Advocates for UOI.
CORAM :-
HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J
1. The challenge in this petition filed in public interest is to:-
(a) Rule 7 of the Armed Forces Tribunal (Procedure) Rules, 2008 prescribing a fee of Rs.250/- for every application to be filed before the Armed Forces Tribunal (AFT);
(b) Rule 11(5) of the Rules aforesaid prescribing a fee of Rs.50/- for service of each of the respondents in excess of five respondents or for execution of processes in respect of an application;
(c) Rule 56 of the Armed Forces Tribunal (Practice) Rules, 2009 prescribing a fee of Rs.25/- for inspection of records of a decided case, by a party to a case or his legal practitioner; W.P.(C) 2495/2013 Page 1 of 12
(d) Rule 109 of the Practice Rules aforesaid prescribing a fee of Rs.10/- for grant of certified copy of any document and a fee of Rs.25/- for providing on urgent basis a certified copy of any document;
on the ground of the fee/charges prescribed being too high vis-à-vis the fee payable by other civilian employees in the Central Administrative Tribunal (CAT) under the Administrative Tribunals Act, 1985. The writ petition also seeks a direction for the fee before the AFT to be the same as before the CAT.
2. Notice of the petition was issued and a counter affidavit has been filed by the respondent Union of India. We have heard the counsels for the parties.
3. Though ordinarily no challenge to the vires / validity of a statutory provision or rule is permissible without the challenger disclosing a cause of action therefor (See Manmeet Kaur Vs. Union of India 196(2013) DLT 301 where a Division Bench of this Court has noticed the various dicta of the Supreme Court in this respect) but without entering into the said controversy and finding the challenge to be by the Association of the Legal Practitioners before the AFT, we proceed to adjudicate the matter.
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4. The challenge is on the ground of discrimination. It is contended that the Armed Forces personnel, prior to the establishment of the AFT, for redressal of their similar grievances approached this Court and had to pay a Court Fees of Rs.50/- only on their petitions but now before the AFT not only have to pay higher Court Fees of Rs.250/- but also much higher process fee for service of notices etc. and much higher charges for obtaining certified copies etc. It is contended that the fee chargeable before the CAT is also the same as in this Court and there is no reason to discriminate the personnel of the Armed Forces vis-à-vis their civilian counterparts. Attention is drawn to the Statement of Objects and Reasons for the enactment of the Armed Forces Tribunal Act to contend that the object was to provide for not only quicker but "less expensive" justice to the personnel of the armed forces. It is argued that on the contrary, the personnel of the armed forces are being charged five times the fee for redressal of similar grievances than their civilian counterparts. It is shown that the language of the Procedure and Practice Rules of the CAT and of the AFT is also the same.
5. It is yet further argued that the Central Government was not competent to make the rules aforesaid providing for payment of enhanced fee as such enhancement could have been made by the Parliament only. Attention in this W.P.(C) 2495/2013 Page 3 of 12 regard is invited to Section 35 of the Court Fees Act, 1870. It is yet further contended that the fixing the Court Fees under the Court Fees Act, 1870 is an essential legislative function and cannot be delegated by Parliament to anybody and therefore the fee fixed under the Procedure and Practice Rules of AFT, framed by the Government, is void. It is contended that the Parliament cannot abrogate its primary function of fixing the Court Fees by delegating the same.
6. The Union of India in its counter affidavit has pleaded / contended:-
(i) that unlike the CAT Act which was enacted in exercise of powers under Article 323A of the Constitution of India, the AFT Act has been enacted in exercise of power under Article 246 of the Constitution of India read with Item (2) of List I of the Seventh Schedule;
(ii) Section 41 of the AFT Act empowers the Central Government to make rules;
(iii) that while comparing the fee before CAT and AFT it cannot be kept out of sight that the Court Fees for CAT was prescribed in the year 1987 whereas the Court Fees for AFT was prescribed in the year 2008 / 2009;
W.P.(C) 2495/2013 Page 4 of 12
(iv) that even the Debt Recovery Tribunal prescribes a Court Fees of Rs.250/- for filing of applications;
(v) similarly the Telecom Disputes Settlement & Appellate Tribunal Procedures Rules, 2005 also prescribe a fee of Rs.1,000/- for a miscellaneous application;
(vi) that the National Green Tribunal (Practices and Procedure) Rules, 2011 prescribe a Court Fees equivalent to one per cent of the amount of compensation claimed, subject to minimum of one thousand rupees;
(vii) that even the Law Commission of India in its 189 th Report had recommended the revision of Court Fees owing to the value of rupee having considerably come down;
(viii) that the structure of fees in AFT has in no way affected the administration of justice to the Armed Forces personnel; and,
(ix) that the increase even if any of Court Fees from Rs.50/- in 1987 to Rs.250/- in 2008 is far below the increase in salaries of armed forces personnel.
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7. The counsel for the petitioners during the hearing referred to Secretary to Government of Madras Vs. P.R. Sriramulu AIR 1996 SC 767 without however drawing attention to any particular part thereof. The crux of the argument was, of discrimination vis-à-vis CAT.
8. The Supreme Court in P.R. Sriramulu supra, while dealing with the challenge to the fee under the Tamil Nadu Court Fees and Suits Valuation Act, 1955 on an ad-valorem scale, without any upper limit, on the ground of the same being exorbitant, arbitrary, unreasonable, unjustified and bearing no relationship to the cost of administration of justice and being in the nature of a tax in the garb of a fee, held:-
A. that though in ancient India administration of justice was a basic function of the State as guardian of the people, without levy of any charge on the party approaching for redressal of its grievance, during the British regime regulations imposing Court Fees were brought into existence initially as a deterrent to institution of frivolous and groundless litigation and abuse of the process of the Court without however causing any impediment in the institution of just claims;
W.P.(C) 2495/2013 Page 6 of 12 B. however in the recent past levy of Court Fees on higher scales has found a justification in the need of the State Government for revenue as a means for recompense;
C. though there is an element of quid pro quo in the levy of fees for the services rendered but in such matters it will be impossible to have an exact co-relationship and there can be no arithmetical exactitude;
D. though the Government is free to levy a small fee in some cases, large fees in others subject to of course to the provisions of Article 14 but one thing the Legislature is not competent to do is to make litigants contribute to the increase of general public revenue; Government cannot tax litigation and make litigants pay, say for road building or education or other beneficial schemes of the State; E. the State enjoys the widest latitude where measures of economic regulation are concerned;
F. that in view of the inherent complexity of these fiscal adjustments, courts give a larger discretion to the legislature in the matter of its W.P.(C) 2495/2013 Page 7 of 12 preferences of economic and social policies and effectuate the chosen system in all possible and reasonable ways; G. that having regard to the changing social and economic conditions of the country and the threats of frequent inflationary trends hovering around, the levy of court fees cannot remain static and has to be amended according to the requirements of the times; H. the increase in the Court Fees has to be appreciated having regard to the increased need of the revenue by reason of the increased cost of the administration of justice; and, I. it would be a futile exercise to compare the rates of Court fee under the Court Fee Act, 1922 with those of 1955; there is bound to be a world of difference in the rates due to long span of time having elapsed between 1922 and 1955.
9. As the aforesaid would demonstrate, the said judgment rather than helping the petitioners is against the petitioners. The only aspect of the argument of the petitioners which it perhaps fails to address is the aspect of discrimination between the civilian employees and the personnel of the armed forces, if earning the same salaries.
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10. However a case for discrimination arises only when parity in all respects is shown. The challenge on the said ground could have been made had both the enactments / Rules been of the same time. Here as aforesaid, there is a difference of nearly over 21 years in the two enactments. Just like the Supreme Court in the judgment supra held that the Court Fees of the year 1955 could not be compared with the Court Fees of the year 1922, similarly the Court Fees prescribed in the CAT Rules enacted 21 years prior to the AFT Rules, cannot be a basis for taking the plea of discrimination. Rather we find that the Law Commission in its 236th Report also has reiterated the suggestion for overall increase in Court Fees taking care of the inflationary trends. The Supreme Court in Sanjeev Kumar Jain Vs. Raghubir Saran Charitable Trust (2012) 1 SCC 455 also highlighted the need for a periodical revision of Court Fees payable in regard to Court proceedings in Civil Courts, High Courts, Tribunals and Supreme Court and observed that the fixed fee should be sufficiently high to have some kind of quid pro quo to the cost involved. The defect / fault if any thus is in the Fees under the CAT Rules remaining static and having not been enhanced and not in prescribing the fees under the AFT Rules at a rate which the Government deemed appropriate on the date of framing thereof. It is the settled principle that there can be no negative equality. Merely because the W.P.(C) 2495/2013 Page 9 of 12 legislature has not done what it ought to have in accordance with the dicta aforesaid of the Supreme Court and the reports of the Law Commission, i.e. enhance the fee under the CAT Rules, is no ground to bind the legislature to prescribe the fee at a subsequent point of time at the same rate.
11. The Supreme Court in P.M. Ashwathanarayana Shetty Vs. State of Karnataka 1989 Supp. (1) SCC 696 held that lack of perfection in a legislative measure does not necessarily imply its unconstitutionality and no economic measure has yet been devised which is free from all discriminatory impact and that in such a complex arena in which no perfect alternatives exist, the Court does well not to impose too rigorous a standard of criticism, under the equal protection clause, reviewing fiscal services.
12. As far as the other ground urged of the Central Government being not competent and only the Parliament being competent is concerned, neither do we find logic therein nor has the counsel for the petitioners chosen to elaborate thereon. The reliance on Section 35 of the Court Fees Act also is misconceived. The same merely provides that the appropriate Government may by Notification in the Official Gazette reduce or remit in whole or in any part of the territories under its administration all or any of the fees mentioned in the Schedules to the Act. We fail to understand as to how it can be invoked in these facts. The rules W.P.(C) 2495/2013 Page 10 of 12 prescribing the Fees for the AFT have been made in exercise of the powers under Section 41 of the AFT Act and Section 43 whereof requires the said rules to be laid before each House of Parliament while it is in session and makes the same subject to modification by the Parliament. Though such a provision has been held to be directory, neither affecting the validity of the Rules nor making the Rules void if not laid before the Parliament (See K.T. Plantation Pvt. Ltd. Vs. State of Karnataka (2011) 9 SCC 1 where this principle was recently reiterated) but otherwise the principle laid down in D.S. Garewal Vs. The State of Punjab AIR 1959 SC 512, Delhi Cloth & General Mills Co. Ltd. Vs. Union of India (1983) 4 SCC 166 and State of M.P. Vs. Mahalaxmi Fabric Mills Limited 1995 Supp (1) SCC 642 is that such a procedure plays a very vital and forceful role which keeps a check over the Government and such laying before the Parliament inherently makes the legislature play an important role for keeping a check on the activity of the Government. In fact it was also observed that the said procedure also negates a challenge on the ground of excessive delegation of legislative power.
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13. We therefore do not find any merit in the petition which is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J CHIEF JUSTICE AUGUST 14, 2014 pp W.P.(C) 2495/2013 Page 12 of 12