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$~ * in the HIGH COURT of DELHI at NEW DELHI % Date of Decision $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th October, 2013 + WP (C) No. 4770/2012 & CM Nos. 9869/2012 (for stay), 11129/2012 (for impleadment), 16545/2012 (for intervention/impleadment), 16845/2012 (for intervention/ impleadment), 16882/2012 (for intervention/ impleadment) DELHI HIGH COURT BAR ASSOCIATION & ANR. ......Petitioners Through: Mr.A.S. Chandhiok, Sr. Adv. with Mr.Mohit Gupta, Mr.Amit Saxena, Ms. Laxmi Chauhan, Advs. Mr.J.P. Sengh, Sr. Adv. with Mr. Mohit Mathur, P-2 in WP (C) No.4770/2012 in person and Ms. Sandhya Gupta & Mr.Ritesh Singh, Advs. Mr. Amit Khemka, Adv. with Ms. Sanorita D. Bharali, Mr. Rishi Sehgal, Advs. for New Delhi Bar Association, Rohini Bar Association & Dwarka Bar Association for applicants in CM Nos.16545/2012, 16845/2012 & 16882/2012. versus GOVT. OF NCT OF DELHI & ANR. ......Respondents Through : Mr. Harish N. Salve, Sr. Adv. with Mr.Nakul Dewan, Mr. J.M. Kalia, Mr. Raghav Shankar & Ms.Bhawna Garg, Advs. for Govt. of NCT of Delhi. W.P.(C)No.4770/2012 page 1 of 531 + WP (C) No.7250/2012 Rajiv Khosla ..........Petitioner Through: Mr.Rajiv Khosla in person. Mr.M.N. Krishnamani, Sr. Adv. with Ms.Aditi Patanjali, Adv. for Delhi Bar Association versus State of NCT of Delhi ...........Respondent Through: Mr. Harish N. Salve, Sr. Adv. with Mr. Nakul Dewan, Mr. J.M. Kalia, Mr. Raghav Shankar & Ms.Bhawna Garg, Advs. for Govt. of NCT of Delhi. + WP (C) No.456/2013 & CM Nos.885/2013 (for stay) Umesh Kapoor ..... Petitioner Through: Ms.Neelam Rathore, Adv. Versus Govt. of NCT of Delhi & Anr. ..........Respondents Through: Mr. Harish N. Salve, Sr. Adv. with Mr.Nakul Dewan, Mr.J.M. Kalia, Mr. Raghav Shankar & Ms.Bhawna Garg, Advs. for Govt. of NCT of Delhi. CORAM: HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA W.P.(C)No.4770/2012 page 2 of 531 GITA MITTAL, J. ―There can be peace only if there is justice‖ - Mahatma Gandhi 1. The instant writ petitions challenge the constitutionality and validity of the Court Fees (Delhi Amendment) Act, 2012 ―Delhi Act 11 of 2012‖ whereby the Legislative Assembly of the National Capital Territory of Delhi has amended the Court Fees Act, 1870 in force in the National Capital Territory of Delhi. 2. As per the scheme of the Court Fees Act, 1870, Section 6 prescribes documents specified as chargeable with court fee in Schedules I and II to the Act and prohibits their filing, exhibition or recording in a court of justice unless fees of the indicated amount have been paid. The schedules have been divided into Schedule I dealing with ad valorem court fees and Schedule II dealing with fixed court fees. 3. By the Court Fees (Delhi Amendment) Act 2012, Section 26 of the Court Fees Act was re-numbered as sub-section (1) thereof and sub-section (2) was inserted as follows:- (2) For the purposes of sub-section (1), and section 25, ―stamp‖ means any mark, seal or endorsement by any agency or person duly authorized by the appropriate government, and includes an adhesive or impressed stamp, for the purposes of court fee chargeable under this Act. Explanation.- ―Impressed stamp‖ includes impression W.P.(C)No.4770/2012 page 3 of 531 by a franking machine or any other machine, or a unique number generated by e-stamping or similar software, as the Appropriate Government may, by notification in the official Gazette, specify.‖ 4. The Court Fees (Delhi Amendment) Act, 2012 also substituted Schedule I and Schedule II of the Court Fees Act, 1870 by new schedules specifying ad valorem and fixed fees, as applicable to the National Capital Territory of Delhi. 5. The impugned amendment seeks to introduce ad valorem payment of documents which are included in Schedule II. 6. As these writ petitions raise similar questions of fact and law and seek the same relief, they have been taken up together for the purposes of hearing and adjudication. 7. On one side of the watershed is the view that the amendments to the Court Fees Act 1870, which is a Central legislation, by the Legislative Assembly of the National Capital Territory of Delhi (hereinafter referred to as the ‗Legislative Assembly of Delhi‘), is unconstitutional, arbitrary and ultra vires on account of lack of legislative competence, whilst on the other side exists the view that the Legislative Assembly of Delhi has the competence to amend the Central Act as the power to legislate on the subject of fees taken in all courts except the Supreme Court vests exclusively in the State Legislature, vide Entry 3 of List II. 8. W.P. (C) No.4770/2012 has been filed by the Delhi High W.P.(C)No.4770/2012 page 4 of 531 Court Bar Association through Shri Mohit Mathur, its Honorary Secretary (who is also petitioner no.2 before us). The Delhi High Court Bar Association, a representative body of advocates, seeks to safeguard the constitutional rights of citizens. 9. This writ petition has been argued before us by Mr. A.S. Chandhiok, Senior Advocate and President of the High Court Bar Association. 10. The following three impleadment applications have been filed in WP(C) No. 4770/2012: I. CM No.16545/2012 by the Dwarka Court Bar Association. II. CM No.16845/2012 by the New Delhi Bar Association. III. CM No.16882/2012 by the Rohini Court Bar Association. 11. Given the urgency of the matter and for the reason of expediency, these applications were heard and kept for disposal with the main writ petition and Mr. Amit Khemka, Advocate appearing for the Dwarka, New Delhi and Rohini Court Bar Associations has been heard on merits. 12. W.P. (C) No.7250/2012 has been filed by Mr. Rajiv Khosla, former President of the Delhi Bar Association. We have heard Mr. M.N. Krishnamani, Senior Advocate and President of the Supreme Court Bar Association as well as Mr. Rajiv Khosla in support of W.P.(C)No.4770/2012 page 5 of 531 this petition. 13. Mr. Krishnamani has submitted that the enhancement of court fees has been effected without taking into consideration relevant material and that the amendment completely ignores the 189th Report of the Law Commission of India on the ―Revision of the Court Fee Structure‖ as well as its recommendations. It is contended that by the impugned amendment, in certain instances, the enhancement results in a person having to pay more than 24% of the value of the subject matter of the lis as court fee, restricting access to justice for those who are financially unable to afford the amended court fees. This goes against the basic structure and spirit of the Constitution. 14. W.P.(C)No.456/2013 has been filed and argued by Ms. Neelam Rathore, Advocate. This writ petitioner had initiated proceedings under Section 34 of the Arbitration and Conciliation Act, 1996 challenging an arbitral award. By an order dated 18th December 2012, the learned Single Judge of this court directed this petitioner to affix proper court fees in terms of the Court Fees (Delhi Amendment) Act, 2012 based on the value of the properties which form the subject matter of the award under challenge. In this background, this writ petition seeks to challenge the constitutionality of the amendment of the levy under Clauses 8(a)and 8(b) of Schedule II of the Court Fees Act on the ground that the same was arbitrary, unreasonable, illegal, ultra vires and unconstitutional. W.P.(C)No.4770/2012 page 6 of 531 15. The term ‗respondents‘ refers to the Government of the National Capital Territory of Delhi and its agencies. Wherever reference is made to the Lieutenant Governor of the NCT of Delhi, it has been mentioned so specifically. Judicial History 16. The first writ petition being W.P. (C) No.4770/2012 was filed along with CM No.9869/2012 which came to be listed before this court on the 9th of August 2012. The court noted that the challenge to the notification dated 23rd July, 2012 by which the Court Fees (Delhi Amendment) Act, 2012 had been notified, was laid on the ground that the Legislative Assembly of Delhi lacked legislative competence placing reliance on judicial precedents including a Full Bench decision of this court. The petitioner had also placed before the court a copy of the letter dated 8th August, 2012 addressed by Dr. Ashok Kumar Walia, Minister to Shri Rajiv Jai, the Chairman of the Coordination Council of All Bar Associations of Delhi assuring that the Government would look into the matter and also would hold discussions with all Bar Associations and all concerned to resolve the issue at the earliest. 17. In view of the above, the Court observed that the government may take such steps for resolving the issues at the earliest and preferably within two weeks after holding discussions with the State Coordination Council. The Court observed that the enhanced court fee which was under challenge would have to be W.P.(C)No.4770/2012 page 7 of 531 paid by the members of the public. Refund to them, in the event of the petition succeeding, would be impractical and that, on the contrary, the enhanced court fee if upheld, could always be recovered. Therefore on 9th of August 2012, an interim order of stay of the operation of the aforesaid notification was granted. This order was continued in proceedings thereafter. 18. The respondents filed a counter affidavit in W.P. (C) No.4770/2012 dated 6th September, 2012 to which the petitioner filed a rejoinder.
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