Armed Forces Tribunal (Pb) Bar ... vs Union Of India And Anr
2014 Latest Caselaw 3720 Del

             *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;

(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.

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

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;

(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.

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;

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

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.

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

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

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.

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