summary/full:
The State of Uttar Pradesh has under the U.P. Excise Act, 1910.
the exclusive right or privilege of manufacturing and selling liquor in that State.
Section ' '4 of the Act provides that subject to the provisions of section 31 the Excise Commissioner may grant to any person a licence for the exclusive privilege of manufacturing or of supplying any country liquor etc.
Section 31 provides for the conditions for the grant of licence.
Section 33 invests the authority granting a licence to require the grantee to execute a counterpart agreement in conformity with the tenor of the licence.
Section 28 authorises imposition of an excise duty or a countervailing duty by The local Government on any excisable article.
Sections 40 and 41 of the Act empower the State Government and the Excise Commissioner subject to the previous sanction of the Government to make rules.
Para 38 of the Excise Manual which contains the rules made under the Act shows that there are 4 licence fee systems in vogue.
One of such systems is the auction fee system under which the amount of licence fee is determined by competition amongst bidders at an auction.
The respondents were the highest bidders at various auctions.
Before holding the auctions, the rates of excise duty and prices of different varieties of country liquor and also the conditions of licence were announced.
No announcement was made as to whether the exemption from sales tax in respect of sale of country liquor granted by the notification dated 6 4 1959 was or was not likely to be withdrawn.
one of the conditions of the licences was that the licensee shall lift each month certain quota of liquor and on the failure to lift the monthly quota the licensee shall be liable to pay compensation to the state Government calculated at the rate of duty per litre on the unlifted quota.
On the day following the day when the licences were granted, the Government of U.P. issued a notification under section 3A and 4 of the U.P. Sales Tax Act, 1948, superseding the earlier notification exempting the payment of sales tax and imposing sales tax on the turnover in respect of country spirit at the rate of 10 P. per rupee.
The respondents having failed to lift and sell the minimum quotas of liquor the appellant called upon them to pay by way of compensation the amount; of excise duty on the shortfalls.
Aggrieved by the demand, the respondents moved the High Court under article 226 of the Constitution for issue of appropriate writ or direction restraining the appellants from recovering the aforesaid amounts.
The respondents in special appeals also challenged the notification issued under the sales Tax Act on the ground that the State Government did not announce at the time of the action that the earlier notification was likely to be withdrawn and that the appellant informed the respondents at the time of the auction that there was no sales tax on the sale of country liquor.
The appellants were, therefore, estopped from making the demand in respect of the sales tax and recovering the same from them.
The High Court allowed all the petitions in toto.
On appeal by special leave, 533 ^ HELD: (1) Neither section 28 nor section 29 nor any other provisions of the Act authorise the levy of the amounts sought to be recovered from the respondents.
The demand made by the appellant though disguised as compensation is in reality a demand for excise duty on unlifted quantity of liquor which is not authorised by the provisions of the Act.
[538 A C] Bimal Chandra Banerjee vs Stale of Madhya Pradesh, ; , followed.
Panna Lal and Ors. etc.
vs State of Rajasthan and others, [1976] I S.C.R. 219.
distinguished.
Appeal dismissed.
(2) Sections 3A and 4 of the U.P. Sales Tax Act clearly authorise the State Government to impose sales tax.
The fact that sales of country liquors had been exempted from sales tax by the earlier notification could not operate as estoppel against the State Government and preclude it from subjecting the sales to tax if it felt impelled to do so in the interest of the revenues of the State.
There can be no question of estoppel against the Government in exercise of its legislative sovereign or executive powers (case law reviewed).
The Government cannot divest itself of the right incidental to its office by conduct which in the case of a private person would amount to estoppel.
The six appeals therefore, are partly allowed


judgement:
N: Criminal Appeal No. 246 of 1971.
Appeal by Special Leave from the Judgment and order dated the 13th May 1971 of the Punjab and Haryana High Court in Criminal original No. 61 M of 1971.
Ram Panjwani, Deputy Advocate General, M.P., I l. section Parihar, and l. N. Shroff, for the Appellants.
O. P. Sharma, M. section Dhillon and section K. Mehta, for Respondents Nos. 2 to 4.
Nemo for Respondent No. 1.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against the judgment of the Punjab .
& Haryana High Court dated May 13, 197 1 by which the High Court allowed the writ petition filed by the respondent Ratan Singh a prisoner who was confined in Central Jail, Amritsar.
The appeal arises in the following circumstances.
The respondent Ratan Singh was convicted by the Sessions Judge Bhind in the State of Madhya Pradesh by his order dated October 16, 1957 under section 302 I.P.C. and sentenced to imprisonment for life.
An appeal filed by the respondent against the order of the Sessions Judge was dismissed by the High Court on May 19, 1959.
Thereafter the accused made a prayer to the Government for transferring his from Gwalior Jail to Amritsar as the accused/respondent belonged to Punjab State.
The representation of the accused was accepted and accordingly he was transferred to the Punjab Jail where he was lodged at Central Jail, Amritsar.
The order of transfer was passed on October 15, 1959.
The respondent contended that as he had completed the period of 20 years ' imprisonment including the remissions granted under the Punjab Jail Manual he was entitled to be released forthwith and he accordingly made an application for his release to the Punjab Government.
In fact the admitted position is that on May 7, 1971 the accused had undergone imprisonment for a period of 25 years 18 days and 19 hours taking into account the various remissions granted to him from time to time.
The Government of Punjab forwarded the representation of the respondent to the Government or Madhya Pradesh for passing an order of release.
On April 18, 1911 the State of Madhya Pradesh rejected the request of the respondent for his release.
Thereafter the accused/respondent filed a writ petition in the High Court of Punjab & Haryana on the ground that the accused having served the sentence for more than 20 years was entitled to be released as a matter of course under the provisions of the Punjab Jail Manual and the Rules framed under the Prisons Act.
It was also contended by the respondent that as he was lodged 554 in a jail under the jurisdiction of the Punjab Government? the appropriate Government to order his release was the Punjab Government and not the Government of Madhya Pradesh and, therefore, the request made by the Punjab Government to the Madhya Pradesh Government was not warranted by law.
The High Court without issuing notice to the State of Madhya Pradesh and after hearing the Advocate General accepted the plea taken by the respondent and held that Punjab State was the appropriate authority to release the respondent.
The High Court relied upon a decision of the Madhya Pradesh High Court in Sitaram Barelal vs State of Madhya Pradesh and directed that as the respondent had already served more than 20 years he was entitled to be released forthwith.
Accordingly the High Court allowed the petition and directed the State Government to consider the case of the respondent for being released and dispose of the case within 20 days from the date of the order of the High Court.
It appears that in pursuance of the order of the High Court the respondent was released.
The State of Madhya Pradesh has filed this appeal by speciaI leave against the order of the Punjab and Haryana High Court on the ground that in law it was the Madhya Pradesh Government alone which had the power to remit the sentence and release the prisoner at the High Court was in error in holding that the Punjab Government could pass the order of release.
Appearing in support of the appeal Mr. Ram Panjwani learned counsel submitted, I two points before us.
In the first place it was argued that the High Court completely overlooked the legal position that a sentence of imprisonment for life could not be said to be a sentence which would expire automatically after the expiry of 20 years including remissions The sentence would enure till the life time of the prisoner but the State Government had the discretion under sections 401 and 402 of the Code of Criminal Procedure to remit the remaining part of the sentence and order release of the prisoner.
Secondly, it was submitted that as the prisoner was convicted by a Court situate in the State of Madhya Pradesh the appropriate Government was the Madhya pradesh Government and not the Punjab Government where the prisoner was transferred to exercise its discretion under section 401 of the Code of Criminal Procedure.
No one appeared for the respondent, but at the time of granting special leave.
this Court had ordered that the release of the prisoner would not be reopened even if the appeal succeeded.
[n other words the State of Madhya Pradesh in this case is not concerned with the individual case of the respondent but only wants an authoritative decision on the important principle involved in the case.
As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this (1) AIR ] 969 M.P. 252.
555 Court in Gopal Vinaykak Godse vs State of Maharashtra and others(1), where the Court, following a decision of the Privy Council in Pandit Kishori Lal vs Kingg Emperor(2) observed as follows: "Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.
Bl, If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate.
Government, can be automatically treated as one for a definite period.
No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.
* * * * A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person 's natural life.
" The Court further observed thus: "But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein.
Section 59 of the Prisons Act confers a power on the State Government to make rules.
inter alia for rewards for good conduct.
Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act.
* * * Under the said rules the orders of all appropriate Government under section 401, Criminal Procedure Code, are a pre requisite for a release.
No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions.
The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life." "The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made G. certain remissions under section 401 of the Code of Criminal Procedure, it did not remit the entire sentence.
We, there fore, hold that the petitioner has not yet acquired ally right to release.
" It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount (l) (2) L.R. 72 IA 1. 556 to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules.
This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under section 401 of the Code of Criminal Procedure and neither section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the Court under the Indian Penal Code.
In other words, this Court has clearly held that a sentence for life would enure till `the life time of the accused as it is not possible to fix a particular period of the prisoner 's death so any remissions given the Rules could not be regarded as a substitute for a sentence of transportation for life.
In these circumstances, therefore, it is clear that the High Court was in error in thinking that the respondent was entitled to be released as of right on completing the term of 20 years including the remissions.
For these reasons, therefore, the first contention raised by the learned counsel for the appellant is well founded and must prevail.
The next plank of the argument put forward by Mr. Ram Punjwani was that under section 401 of the Code of Criminal Procedure i, was the State of Madhya Pradesh where the accused was convicted which alone had the power to grant remission and order release of the prisoner.
It was submitted that the transfer of the accused from the State of Madhya Pradesh to the State of Punjab was made merely at the instance of the prisoner and for his convenience and could not clothe the transferee State with the power to pass an order under section 401 of the Code of Criminal Procedure.
In order to understand the implications of the argument put forward by the appellant it May be necessary extract the relevant provisions of section 401 of the Code of Criminal Procedure which run thus: "401.
( 1 ) When any person has been sentenced to punishment for an offence, the appropriate Government may at any time, without conditions or upon any conditions which of the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government, may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
" A perusal of section 401 of the Code of Criminal Procedure would reveal that the section consists of two parts the first part confers an absolute discretion on the appropriate Government to remit the whole or any part of the punishment to which the accused may have been sentenced.
557 The words used ill sub section
(1) as also sub section
(2) of section 401 clearly show that the power is exercised by the "appropriate Government".
The expression "appropriate Government" appears to have been substituted for the expression "Provincial Government` ' by Amendment Act 1950 Previously the words used were "Provincial Government".
Sub section (2) of section 401 of the Code of Criminal Procedure, however, enjoins that before exercising its discretion on an application made to the appropriate Government for remission of the sentence, the appropriate Government may require the presiding Judge of the Court which convicted the prisoner to state his opinion whether the application should be granted or refused.
Thus the procedure laid down in sub section
(2) of section 401 gives a clear indication as to the real meaning and purport of the words "appropriate Government".
It is obvious that only that Government can call for the opinion of the presiding Judge of the Court which has control over the said presiding Judge or the Court which is situated within the jurisdiction of the said Government.
As a logical corollary of the interpretation of sub section
(2) of section 401 it is the State where the accused was convicted which alone has the power to grant remissions of the sentence.
an the instant ease the Punjab Government had absolutely no control or jurisdiction of the Sessions Judge, Bhind in the State of Madhya Pradesh and could not have called for an opinion from that Court.
In these circumstances there can be no shadow of doubt that the appropriate Government mentioned in sub section
(1) and sub section
(2) of section 401 of the Code of Criminal Procedure refers to the Government of the State where the accused was convicted, that is to say, the transferor Government and not the transferee Government.
Any such transfer of the accused from a jail situate in one State to a jail in other State has absolutely no bearing on the question as to the application of section 401 of the Code of Criminal Procedure, because this is merely an executive matter and an executive decision taken to meet the convenience of the accused.
Furthermore, the position is made absolutely clear by sub section
(3) to section 402 of the Code of Criminal Procedure which runs thus: "In this section and in section 401, the expression "appropriate Government" shall mean (a) in cases where the sentence is for an offence against, or the order referred to in sub section (4A) of section 401 is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government: and G (b) in other cases, the State Government.
" A perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of section 401 of the Code of criminal Procedure.
Thus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh the State of Madhya Pradesh would be the appropriate Government 558 to exercise the discretion for remission of the sentence under section 401(1) of the Code of Criminal Procedure.
Although the present case is governed by the old Code, yet we may mention that the new Code of Criminal Procedure, 1973 has put the matter completely beyond and.
controversy and has reiterated the provisions of section 402(3) in sub section
(7) of section 432 which provides thus: "(7) In this section and in section 433, The expression "appropriate Government" means, (a) in cases where the sentence is for an offence against, or the order referred to in sub section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
"Actually this clause has been bodily lifted from the provisions of section 402(3) and has made the position absolutely clear.
In Surjit Singh vs State of Punjab & ors.(l) a Division Bench of the Punjab & Haryana High Court has also taken the view that the appropriate Government would be the Government of the State where the prisoner has been convicted and sentenced.
The Division Bench of the Court after an exhaustive discussion of the various provisions of the Code of Criminal Procedure and the Rules observed as follows: "There is, however, nothing to indicate that for the purposes of remission and suspension of sentences under section 401, Criminal Procedure Code, the Legislature intended to adopt a different definition of 'appropriate government '.
In short, under section 401, Criminal 'Procedure Code, the Government of the State of conviction and not the Punjab Government was competent to remit the balance of the sentence of these life convicts.
All that the Punjab Government could do was to forward the cases of these life convicts to the appropriate Government for remitting the remaining term of their life imprisonment, in exercise of the power under section 401, Criminal Procedure Code.
The Punjab Government has already made such a reference in favour of the petitioners to the Governments of the States of conviction.
Neither the Punjab Government nor the Superintendent of Jail concerned can release the prisoner under any of the statutory rules contained in Punjab Jail Manual without receiving the necessary orders of the appropriate Government under section 401.
Pending the receipt of orders of the appropriate Government, therefore, the detention of the petitioners could not by any reasoning, be called illegal.
" (1) Criminal Writ No. 11 of 1971 decided on 26 5 72.
559 We find ourselves in complete agreement with the view taken by the Punjab & Haryana High Court.
Before closing the judgment, we may refer to Sitaram Barelal 's s case (supra) which forms the sheet anchor of the decision of the High Court in the instant case.
To begin with that case does not deal with the identical point involved in the present case.
III that case, the State Government had exercised a statutory power under.
I Special Act passed by the State of Madhya Pradesh, namely, the Madhya Pradesh Prisoners Release on Probation Act 16 of 1954.
Under the provisions of that Act the State Government was given the power to release prisoners found to have been of good conduct by imposing certain conditions for their rule it was not here the Government was exercising its discretion under section 401 of the Code of Criminal Procedure for remission of the part of the sentence after the accused had served the sentence for 20 years and claimed to be released.
Secondly the power for a temporary release of the Prisoner was conferred by the said Act on the State of Madhya Pradesh under certain conditions.
The Government was, therefore, exercising as statutory power.
In these circumstances the facts in Sitaram Barelal 's case (supra) were quite different from the facts of the present case.
It is true that the prisoner in that case was lodged in a jail in the State of Maharashtra but in view of the provisions of the Special at a particular State Government alone was empowered to exercise its discretion under the provisions of section 2 of the said Act.
In the instant case there is no such Act at all in the State of Punjab & Haryana which could have provided any justification for take said State to exercise its power to release the prisoner.
Thirdly? as already state the power conferred by the Act was merely a power to release the prisoner on a temporary basis subject to certain conditions which is not the case here at all.
In these circumstances the High Court was not at and justified in relying on the decision of the Madhya Pradesh High Court in Sitaram Barelal 's case (supra) for tile proposition that the Punjab Government would be the appropriate Government to exercise power under section 401 (1) of the Code of Criminal Procedure From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge: (1) that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.
A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under section 401 of the Code of Criminal Procedure; (2) that the appropriate Government has the undoubted discretion to remit or refuse to remit the sentence 560 and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner; (3) that the appropriate Government which is empowered to grant remission under section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner has been convicted and sentenced, that is to say, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act; and (4) that where the transferee State feels that the accused has completed a period of 20 years it has merely to forward the request of the prisoner to the concerned State Government, that is to say, the Government of the State where the prisoner was connected and sentenced and even if this request is rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction.
For these reasons, therefore, we are satisfied that the view taken by the High Court of Punjab & Haryana in the instant case is erroneous and cannot be supported in law.
We accordingly allow the appeal, set aside the order of the High Court.
But as the respondent has already been released, the order of release of the respondent shall stand.
PBRAppeal allowed.

dataset_name: IN-Abs

summary/full:
The respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh.
At his request he was transferred to a jail in the State of Punjab, to which State he belonged.
He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment.
The application was sent to the Government of Madhya Pradesh, which rejected it.
In a writ petition filed by him the High Court of Punjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter.
In appeal to this Court, the State of Madhya Pradesh contended: (i) that since the sentence was of imprisonment for life, it would not expire automatically at the expiry of ' 20 years including remissions: and (ii) that as the prisoner was convicted by a court in the State of Madhya Pradesh the appropriate Government the exercise discretion under sections 401 and 402 Cr.
P.C. was the State of Madhya Pradesh and not the State of Punjab., Allowing the appeal, ^ HELD: The High Court was in error in holding that the respondent was entitled to be released as of right on completing the term of 20 years including remissions.
[556] Gopal Vinayak Godse vs State of Maharashtra and Others, ; and Pandit Kishori Lal vs King Emperor, L.R. 72 I.A.1, followed.
(1) A sentence of imprisonment for life does not automatically expire at the end of 20 years including remissions because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code.
A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under section 401 of the Code of Criminal Procedure.
[559G] (2) The appropriate Government has the discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner.
[560A] (a) The appropriate Government which is empowered to grant remission under section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner had been convicted and sentenced, that is, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act.
[56B] (b) Where the transferee State feels that the accused had complected a period of 20 years it has merely to forward the request of the prisoner to the Government of the State where the prisoner was convicted and sentenced and if this request was rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction.
[550D] 553 [Since the respondent was released in pursuance of the order of the High Court, the release order was allowed to stand.]


judgement:
Civil Appeal No. 1370 of 1968.
Appeal by Special Leave from the Judgment and order dated the 6th March, 1967 of the High Court of Judicature at Allahabad in First Appeal No. Nil of 1965.
J. P. Goyal and section M. Jain, for the Appellants.
G.L. Sanghi, D. N. Misra and O. C. Mathur, for Respondent No. 1.
G. N. Dixit and O. P. Rna, for the State of U.P.
The Judgment of the Court was delivered by FAZAL ALI, J.
This is an appeal by special leave against the judgment of the Single Judge of the Allahabad High Court deciding 666 a court fee matter in connection with the memorandum of appeal filed by the appellants before the Allahabad High Court against a decree passed by the Tribunal appointed under the hereinafter referred to as 'the Act '.
The appellants had filed an application under section 13 of the Act before the Tribunal alleging that it was a partnership firm and claimed that an amount of Rs. 3,50,000/ by way of refund of security deposits and a sum of Rs. 55,000/ as commission was due from the respondents.
The application was tried by the Tribunal and the claim preferred by the appellants was ultimately dismissed by the Tribunal by its decree dated May 19, 1965.
Additional Civil Judge of Badaun was assigned as the Tribunal under the aforesaid Act.
The appellants then filed an appeal before the Allahabad High Court with a nominal court fee of Rs. 5/ but the Stamp Reporter of the High Court was of the opinion that the appellants should have paid ad valorem court fees on the total claim preferred by the appellants before the Tribunal which had been disallowed.
The matter was taken up by the Taxing Officer, who, in view of the substantial importance of the point raised, made a reference to the Taxing Judge for deciding the court fee payable on the memorandum of appeal in the instant case.
The plea of the appellants was that as the decision of the Tribunal did not amount to a decree as contemplated by section 2(2) of the Code of Civil Procedure 1908, ad valorem court fees were not payable and the appellants were entitled to pay court fees as prescribed in Sch.
11 article 11 of the Court Fees ' Act.
The stand taken by the revenue was that as the present appeal was against a decree, the case of the appellants squarely fell within the ambit of section 4 of the Court Fees ' Act and therefore ad valorem court fees were payable under Sch.
I article 1 of the Court Fees ' Act.
The matter was taken up by the Taxing Judge who went into the question of law raised before him and after considering some authorities, particularly those of the Allahabad High Court, agreed with the Stamp Reporter and came to the conclusion that the appellants should pay ad valorem court fees under Sch.
I article 1 of the Court Fees ' Act.
The Taxing Judge accordingly by his order dated October 11, 1965 directed the appellants to make up the deficiency in the payment of the court fees.
It was against this order that the appellants filed a petition for special leave to this Court which having been granted the appeal has now been placed before us for hearing.
This appeal involves a short but substantial question of law as to the interpretation, scope and ambit of Sch.
II article 11 of the Court Fees ' Act as applicable to appeals preferred against the orders or decrees passed by the Tribunal constituted under the Act.
The point is not free from difficulty and there appears to be a serious divergence of judicial opinion on the question as to whether in appeals like the present, Sch.
I article 1 or Sch.
II article 11 of the Court Fees ' Act would apply.
Mr. Goyal learned counsel appearing for the appellants raised two points before us.
In the first place he contended that as the proceedings before the Tribunal were not proceeding in a Civil Court nor was the Tribunal a Court, therefore, the decision of the Tribunal 667 even though loosely called as a decree is not a decree as contemplated by section 2(2) of the Code of Civil Procedure and therefore the case of the appellants clearly falls within the ambit of Sch.
II article II of the Court Fees Act.
It was next contended that as the Tribunal had disallowed the claim of the appellants by the order impugned before the High Court the order did not amount to any decree and, therefore, the question of payment of ad valorem court fees did not arise.
In this connection it was also submitted that the Act being a beneficial statute was designed to provide a cheap and expeditious remedy to displaced persons in certain circumstances and therefore the Parliament never intended that displaced persons who had lost all that they possessed in Pakistan should be made to pay ad valorem court fees without possessing the capacity to do so.
Mr. Dikshit appearing for the respondents sought to repel the arguments of Mr. Goyal on two grounds.
In the first place it was submitted that under the provisions of the Court Fees Act the order of the Taxing Judge was final and could not be re opened by this Court even in special leave.
Secondly, it was submitted that the Tribunal was nothing but a Civil Court and the provisions of the Act would show that the Tribunal was clothed with all the powers and incidents of a Civil Court.
In these circumstances it was contended that any decree which was passed by the Tribunal must be presumed to be a decree of the Court and was made appealable as such under section 40 of the Act.
Therefore, it was said, Sch.
II article 11 had absolutely no application and the view taken by the Taxing Judge was legally correct.
In order to understand the contentions raised by the counsel for the parties it may be necessary for us to trace the history of the Act and the circumstances in which it was passed.
To begin with, following the partition of the country there was an unprecedented rush of refugees from Pakistan to India and our country immediately after becoming independent had to face the colossal problem of rehabilitating the refugees or the displaced persons.
Most of these persons had left huge assets behind in Pakistan and had come to this country without a penny.
Others were creditors and were entitled to get their debts liquidated from the assets in this country or from the properties possessed by the Banks in this country.
Soon after independence there were stray and piecemeal legislations providing for some facilities for displaced debtors and creditors but there was no uniform law to cater to their growing needs in view of the situation faced by them following the partition of our country.
In these circumstances, therefore, the Government decided to bring out a uniform legislation so as to be a complete code in itself providing for a cheap and expeditious remedy for displaced debtors and creditors.
The matter was first entrusted to a Committee and then to Bind Basni Prasad, a retired Judge of the Allahabad High Court, who after taking evidence of a large number of displaced persons and examining the nature of the claims, submitted a report which formed the basis of the Displaced Persons (Debts Adjustment Act.
Introducing the Bill which preceded the Act, Mr. A. P. Jain, the then Minister of State for Rehabilitation, made a long speech in 668 Parliament dwelling on the various aspects of the Bill.
The Minister particularly highighted the fact that the condition of the displaced persons was pitable as they had left huge assets behind in Pakistan.
In this connection the Minister observed thus: "The condition of the displaced persons therefore today is that while their assets have been left behind in Pakistan and they have brought the titles of their property, at least in some cases.
In the provisions contained in this Bill, we have tried to strike a balance between the reduced capacity of the debtor to meet his obligations and at the same time we have taken sufficient care to see that a debtor who is in a position to pay may not deny payment to his creditor.
In this Bill, we have introduced what might be called a somewhat revolutionary principle, namely, that no debtor will be called upon to pay more than his paying capacity.
I shall later on define what the words 'paying capacity ' mean, but here it may be enough to mention that paying capacity of a debtor has been defined in a rather liberal manner after allowing fairly large assets which will not be capable of attachment.
Clause 13 deals with claims by displaced creditors against persons who are not displaced debtors.
That is not comparatively so important because it only gives relief in respect of court fees.
We felt that under the depressed economic condition of the displaced creditors, it is necessary that we must give them some relief against the huge amount of money which they have to pay as court fees etc.
I submit that these are all very necessary and humane considerations which take into account the actual paying capacity of the debtor.
We have maintained the existing procedure in the Courts but we have simplified it because a prolonged procedure and the complexities of the civil courts mean a lot of money.
We have provided only one appeal in clause 40.
" A perusal of the above observations will give a clear insight into the various objects of the Act and the main purposes which the legislation sought to achieve.
It will be noticed that the Minister laid particular stress on the paying capacity of the debtors which he called a humane consideration and also described the necessity of giving relief to the displaced persons against the huge amount of money which they may have to pay as court fees.
Thus it would appear that the intention of Parliament was to bring out a legislation which would provide for a cheep and expeditious remedy to the displaced persons and entrust the work to a Tribunal which may 669 be able to decide the claims quickly instead of leaving the displaced debtors or creditors to follow the dilatory and cumbersome process of the civil courts.
In order to shorten the litigation the Minister expressly stated that only one appeal had been provided in section 40 of the Act, to the High Court.
These matters will have a very important bearing on the interpretation of the provisions of the Court Fees Act as applicable to the decrees passed by a Tribunal under the Act.
Even apart from these considerations, it is well settled that in case of a fiscal statute the provisions must be strictly interpreted giving every benefit of doubt to the subject and lightening as far as possible the burden of court fees on the litigant.
Thus where an adjudication given by a Tribunal could fall within two provisions of the Court Fees Act, one of which was onerous for the litigant and the other more liberal, the Court would apply that provision which was beneficial to the litigant.
In A. V. Fernandez vs State of Kerala, while interpreting the provisions of a fiscal statute, viz., the Travancore Cochin General Sales Tax Act, this Court observed as follows: "It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law.
If the Reve nue satisfs the Court that the case falls strictly within the provisions of the law, the subject can be taxed.
If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter." Similarly in State of Maharashtra vs Mishri Lal Tara Chand Lodha and others, while interpreting some of the provisions of the Bombay Court Fees Act, Raghubar Dayal, J., speaking for the Court observed as follow: "The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject litigant.
" These observations manifestly show that the Courts have to interpret the provisions of a fiscal statute strictly so as to give benefit of doubt to the litigant.
The principles deducible from the decisions referred to above are well established and admit of no doubt.
We, therefore, propose to decide the question raised before us in the light of the principles enunciated above, but before doing that it may be necessary to give a brief survey of the scheme and structure of the Act in order to find out the real nature, scope and ambit of the statute.
670 To begin with, it may be necessary to extract the relevant portion of the statement of objets and reasons of the statute: "The Bill is designed mainly to give relief to displaced debtors in respect of liabilities incurred by them prior to their displacement from West Pakistan though remission of court fees has also been allowed to displaced creditors.
A certain amount of relief was afforded to them by Acts XLVII of 1948 and XXV of 1949, but this was found to be inadequate.
A thorough examination of the various problems involved had to be made with a view to affording displaced persons adequate and, at the same time, reasonable relief in the matter of their indebtedness, consistently with the needs of their rehabilitation.
A decree under the law will thus consist of two parts, the first part being equivalent to and recoverable from the 'paying capacity ' of the debtor, and the second part being equivalent to the balance of the total amount decreed and recoverable from the compensation, if and when received by the debtor.
The first part of the decree will, as a rule, be recoverable in instalments.
In respect of the second part of the decree, it has been accepted that the amount payable should be scaled down in the proportion in which the displaced debtor is able to obtain recompense in respect of his immovable property left behind in West Pakistan.
Where no recompense is received, there will be no recovery of the second part of the decree.
" Section 4 of the Act provides for constitution of Tribunals to exercise jurisdiction under the Act and empowers the State Government to designate any civil court or class of civil courts as the Tribunal or Tribunals and may also define the areas in which such Tribunal shall exercise jurisdiction.
It may be pertinent to note here that the statute deliberately does not entrust the functions of the Act to the civil court per se but to a Tribunal to be selected from amongst civil courts.
Section 5 of the Act provides for an application to be given by a displaced debtor for adjustment of his debts and gives the requirements of that application.
Section 6 authorises the Tribunal to reject the application under section 5, if it does not fulfil the requirements of section 5 and further gives it the power to grant time to comply with the requirements.
Sections 7 and 8 of the Act provide for issue of notices to the respondents and give right to the respondents to file their objections.
Section 9 provides for an inquiry into the application made under section 5.
The statute designedly uses the word "proceeding" in section 9 rather than a suit which clearly shows that the Legislature was aware of the distinction between a "proceeding" and a "suit".
Sub section (2) of section 9 authorises the Tribunal to decide the dispute and pass such decree in relation thereto as it thinks fit.
It is, therefore, clear that the decree which the Tribunal passes is not a decree of the Civil Court but a decree passed by a Tribunal in a proceeding under section 5 and section 9 of the Act.
Section 10 deals with claims by the creditors against 671 displaced debtors and section 11 regulates the procedure of a petition filed by the creditor.
Sub section (2) of section 11 further authorises the Tribunal to determine the claim and pass a decree in relation thereto.
Section 12 provides for objection by creditor to schedule of assets and section 13 refers to claims by displaced creditors against persons who are not displaced debtors.
Section 14 prescribes the procedure for displaced creditor 's petition filed under section 13 of the Act and authorises the Tribunal to pass a decree as it thinks fit.
Sub section (3) of section 14 authorities the Tribunal to pass a decree if no cause is shown or if no dispute exists.
A perusal of sub sections
(2) & (3) of section 14 clearly shows that the statute contemplates a decree which may be one of rejection of the claim put forward by the displaced creditor or one which amounts to allowing the claim.
Thus, in other words, whether claim is disallowed or allowed, the order passed by the Tribunal would be a decree in both cases.
We have purposely mentioned this fact because some of the High Courts have taken the view that where the Tribunal rejects the claim of a displaced creditor or debtor either on the ground that the petitioner is not a displaced debtor or creditor but not on merits, such an adjudication does not amount to a decree.
This distinction sought to be made by some of the courts does not appear to be consistent with the scheme and language of the statute.
Section 15 of the Act deals with the consequences of application by displaced debtor.
The next relevant provision is section 18 which regulates the procedure for claims against insurance companies, and sub section
(2) of this section provides for a decree to be passed by a Tribunal.
Section 23 provides for a simplified procedure in certain cases where the claim is below Rs. 5,000/ in which case the Tribunal is empowered to record only a memorandum of the substance of the deposition of the witnesses so as to given a short and summary decision.
Section 27 refers to the contents of the decree and section 28 provides for the forum and the Court in which the decree passed by the Tribunal is to be executed.
Section 32 of the Act provides the procedure for scaling down of debts by a displaced debtor.
Section 36 provides for extension of period of limitation.
Section 40 is the provision for appeals against any decree or final order of the Tribunal or against any order passed in the course of execution.
These are the relevant provisions of the Act in so far as the facts of the present case are concerned.
A close examination and a detailed analysis of the various provisions of the Act would clearly reveal that the Act is a beneficial statute meant for advancing the cause of the displaced debtors and creditors by conferring substantial benefits on them if they are able to prove their claims.
In these circumstances it is clear to us that the Legislature could never have intended that the claimants should have to pay heavy court fees either in getting, their claims adjudicated by the Tribunal or even in filing appeals against the decrees of the Tribunals.
That the displaced persons had been given such concessions and facilities has been held by this Court in Shri Ram Narain vs The Simla Banking & Industrial Company Ltd. where this Court observed as follows: "Now, the is one of the statutory measures meant for relief and rehabil 672 tation of displaced persons.
It is meant for a temporary situation brought about by unprecedented circumstances.
It is possible, therefore, to urge that the provisions of such a measure are to be treated as being particularly special in their nature and that they also serve an important national purpose.
It is by and large a measure for the rehabilitation of displaced debtors.
x x x There is no provision therein which compels either a displaced debtor or a displaced creditor to go to the Tribunal he is satisfied with the reliefs which an ordinary civil court can give him in the normal course.
It is only if he desires to avail himself of any of the special facilities which the Act gives to a displaced debtor or to a displaced creditor and makes an application in that behalf under sections 3, or 5(2), or 13, that the Tribunal 's jurisdiction comes into operation.
x x x It is also desirable to notice that so far as a claim of a displaced creditor against a non displaced debtor is concerned the main facilities that seem to be available are (1) the claim can be pursued within one year after the commencement of the Act (presumably even though it may have been time barred), (2) a decree can be obtained on a mere application, i.e. without having to incur the necessary expenses by way of court fee which would be payable if he had to file a suit, (3) the creditor has the facility of getting his claim adjudicated upon by a Tribunal which has jurisdiction over the place where he resides, i.e., a place more convenient to him than if he had to file a suit under the ordinary law in which case he would have to file a suit at the place where the defendant resides or part of the cause of action arises.
There may also be a few other minor facilities.
" As pointed out above, the claim of the appellants in the present case before us was dismissed by the Tribunal on merits and the stand taken by the Revenue which found favour with the Taxing Judge of the High Court was that the appellants should pay ad valorem court fees as their claim was rejected on merits.
Counsel for the appellants has submitted that the present appeal would be governed clearly by Sch.
II article 11 of the Court Fees Act, This Article reads thus: "11.
Memorandum of appeal when the appeal is not from a decree or an order having the force of a decree, and is presented.
(a) x x x (b) to a High Court or Chief Commissioner, or other Chief Controlling Executive or Revenue Authority.
Two rupees" In order to attract application of this article, the following conditions must be fulfilled: 673 (i) that the document sought to be stamped must be a memorandum of appeal; (ii) that the appeal should be presented to the High Court; and (iii)that the appeal should not be from a decree or an order having the force of a decree.
The third condition of the article is couched in a negative form thus implying that this provision would have no application to appeals against decrees.
The question that falls for determination is as to whether or not the decision given by the Tribunal under the Act could be said to be a decree within the meaning of Sch.
II article 11 of the Court Fees Act.
It was submitted by learned counsel for the appellants that the Court Fees Act and the Code of Civil Procedure being statutes complementary to each other should be read as one harmonious whole.
We think that the contention is well founded and must prevail.
The term "decree" as used in the Court Fees Act is a term of art and it must be deemed to have been used in the same sense as understood by the Code of Civil Procedure.
It may be pertinent to note here that neither the Court Fees Act nor the has defined the term "decree".
Nevertheless" as far back as 1859, by Act No. VIII of 1859 passed by the Governor General in Council the concept of a decree was clearly indicated, although no definition of a decree was given in that Act.
By sections 183 to 190 the manner in which the judgments were to be given and the decrees were to be prepared as also the contents of the same were clearly mentioned.
Section 189 which expressly dealt with decrees ran thus: "The decree shall bear date, the day on which the judgment was passed.
It shall contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, as stated in the Register of the suit, and shall specify clearly the relief granted or other determination of the suit.
It shall also state the amount of costs incurred in the suit and by what parties and in what proportions they are to be paid, and shall be signed by the Judge, and sealed with seal the Court.
" Thus when the Court Fees Act was passed in the year 1870 and used the term "decree" it must be intended to have used the word "decree" so as to bear the same connotation as the word "decree" as explained in section 189 of Act VIII of 1859.
In the Code of Civil Procedure Act XIV of 1882 "decree" appears to have been defined for the first time and the definition may be extracted as follows.
" 'decree ' means the formal expression of an adjudication upon any right claimed, or defence set up in Civil Court when such adjudication so far as regards the Court expressing it, decides the suit or, appeal.
An order rejecting a plaint, or directing accounts to be taken, or determining any question 674 mentioned or referred to in section 244, but not specified in section 588, is within this definition: an order specified in section 588 is not within this definition:" The Code of Civil Procedure of 1908 also gave a full and complete definition of "decree" in section 2(2) which runs thus: " 'decree ' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final.
It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default.
" It would be seen that an order rejecting a plaint was clearly mentioned as falling under the term "decree".
In view of this clear definition of the order rejecting a plaint, it became necessary to make a corresponding change in Sch.
II article 11 of the Court Fees Act and by Act V of 1908 the words "from an order rejecting a plaint or" used in Sch.
II article 11 before 1908 were expressly omitted for the simple reason that an order rejecting a plaint having been incorporated in the definition of a "decree" it was not necessary to retain it in the Court Fees Act.
This is the most important intrinsic evidence to show that the Legislature in enacting the Court Fees Act used the term "decree" in the same sense as it was used in section 2(2) of the Code of Civil Procedure, 1908 or in the code obtaining before that day.
This also shows that the Court Fees Act and the Code of Civil Procedure are more or less complementary to each other.
This matter was the subject matter of a decision of this Court in Mannan Lal vs Mst.
Chhotaka Bibi, where this Court observed as follows: "In our view in considering the question as to the maintainability of an appeal when the court fee paid was insufficient to start with but the deficiency is made good later on, the provisions of the Court Fees Act and the Code of Civil Procedure have to read together to form a harmonious whole and no effort should be made to give precedence to provisions in one over those of the other unless the express words of a statute clearly override those of the other.
Apart from the decisions bearing on the point, there can in our opinion, be no doubt that Section 4 of the Court Fees Act is not the last word on the subject and the court must consider the provisions of both the Act and the Code to harmonise the two sets of provisions which can only be done by reading Section 149 as a proviso to Section 4 of the Court Fees Act by allowing the deficiency to be made good within a period of time fixed by it.
" 675 There are a number of other decisions of the High Courts which have also taken the view that the word "decree" appearing in Sch.
II article 11 has to be read in the same sense as used in the Code of Civil Procedure.
In Ram Prasad vs Tirloki Nath a Division Bench of the Allahabad High Court observed as follows "The word 'decree ' has not been defined in the Courtfees Act or in the General Clauses Act; and it is safe to assume that the word has been used in the Court fees Act in the sense in which it is used in the Civil P.C., under which all the decrees are passed and which defines it as meaning "the formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. " A Full Bench of the Hyderabad High Court in Dawood Karim Ashrafi vs City Improvement Board made a similar observation where the Court observed as follows: "To have the force of a decree, an order must possess all the characteristics of a decree.
It was further held that the word "decree" has not been defined in the Court fees Act or in the General Clauses Act, and it was safe to assume that the word has been used in the Court fees Act in the sense in which it is used in the Civil Procedure Code.
" A Division Bench of the Patna High Court also in Antala Gope vs Sarbo Gopain, while interpreting the word 'decree ' used in the Hindu Marriage Act, appears to have taken the same view and observed as follows: "The Act provides under section 21 that "all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908"; that is to say, the procedure to be adopted by the Court, in dealing with such proceedings will be akin to that provided for the trial of suits in a Civil Court.
But that does not make the proceeding a suit or the application a plaint.
x x x x x x x x Therefore, in our view, article 11 of Schedule II of the Court Fees Act will be applicable to all appeals coming under section 28 of the .
" The later Full Bench decision of the Allahabad High Court in Mrs. Panzy Fernandas vs Mrs. M. F. Cusoros & others appears to have endorsed its previous view and observed as follows: 676 "The same result would, however, follow from a perusal of the various provisions of the Code of Civil Procedure of 1859, as it stood in the year 1870.
The above provision of law, therefore, indicates that under the Code of Civil Procedure, 1859, a decree could only be passed in a proceeding which could be termed a suit.
Section 26 specified the particulars that are to be given in the plaint.
Section 27 laid down the manner in which the plaint was to be subscribed and verified.
Thus the scheme of the Code of Civil Procedure of 1859 as disclosed by the aforementioned provisions, also points to the conclusion that a decree marks the culmination of a proceeding which is described as a suit, and which, according to the said Code, is initiated by means of a plaint.
Proceedings for letters of administration under the Indian Succession Act (Act XXXIX of 1925) are not commenced by the institution of a plaint.
On the other hand, as section 278 of the said Act shows, they are commenced by an "application" or a petition.
For the above reasons we are of opinion that the decision of a Court in proceedings for letters of administration cannot be described as a decree.
If excitability was to be the invariable quality of all decrees, one would expect that the Legislature would incorporate this feature in the provisions which define the nature, scope and contents of a decree.
Further, if the Legislature wanted that Schedule II Article 11 should apply only to executable orders it could very easily have added the word "executable before "order".
" In the above case the order passed in a proceeding before a Probate Court was held not to be a decree.
In Dundappa vs
section G. Motor Transport Company the High Court of Mysore observed as follows: "In order to understand the expression "having the force of a decree" occurring in this article of the Court Fees Act, it would be useful to derive guidance from the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, according to the provisions of which, a decree is a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy before the Court.
" In Irshad Husain vs Bakhshish Husain the same view was taken by the Oudh High Court where the Court observed as follows: "The expression "decree" is not defined either in the Court Fees Act or in the General Clauses Act.
It may, 677 therefore, be safely assumed that this expression as used in Sch. 2, article 11, Court Fees Act, bears the meaning given to it by section 2(2) Civil P.C.
Nor can it be disputed that there is a vital difference between a "decree" and "order" in matters relating to appeals.
" In Harrish Chandra Chatterji vs Bhoba Tarini Debi the Calcutta High Court also appears to have taken the same view, where the Court observed as follows: "I do not think this was the "formal expression of an adjudication" so as to make the order a decree within the meaning of sec.
2 of the Code of Civil Procedure.
The fee payable, therefore, will be one leviable under article 11 of the second schedule of the Court fees Act." The Bombay High Court in Taxing officer, High Court, Appellate side vs Jamnadas Dharamdas which was a case under the , has clearly held that the term "decree" used in Sch.
II article 11 of the Court Fees Act must be held to Lave the same meaning as in section 2(2) of the Code of Civil Procedure.
Thus on a consideration of the authorities mentioned above the propositions may be summarised as follows: Firstly, that under the definition of a "decree" contained in section 2(2) of the Code of Civil Procedure, 1908, three essential conditions are necessary: (i) that the adjudication must be given in a suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii)that the adjudication must be formal and final and must be given by a civil or revenue court.
In the proceedings under the Act we have already pointed out that as the Legislature has created a special tribunal to inquire into the claims displaced debtors or creditors, the Tribunal cannot be called a Court in any sense of the term because the Legislature has made a clear distinction between a Tribunal and a Court.
Secondly, as the proceedings before the Tribunal start with an application and not with a plaint the other important ingredient of a decree is wholly wanting.
Thirdly, the Legislature has itself made a clear cut distinction between a suit and a proceeding and has described the claim before the Tribunal as a proceeding rather than as a suit.
In these circumstances, therefore, none of the requirements of a degree are to be found in the decision given by the Tribunal even though the Legislature may have described the decision as a decree A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of 678 The Court Fees Act.
The term "decree" appears to have been used by the Legislature to convey a sense of finality regarding the decision of the Tribunal more particularly since the adjudication of the claim, but for the Act, would have been by a Civil Court and then it would have been a "decree".
Secondly, as pointed out, the object of the Act is to benefit displaced persons by providing them a cheap and expeditious remedy.
The argument of Mr. Sanghi for the respondent.
, the he Legislature wanted the claimants to pay heavy court fees if they lost before the Tribunal is totally inconsistent with the aim and object of the Act.
If the displaced claimants were given the right to have their claims determined on a nominal court fee and if only one right of appeal was provided it surpa, ses one 's comprehension why the Legislature should have.
intended that even if wrong orders were passed by the Tribunal, the claimants should have to pay heavy court fees if they wanted to file an appeal to the High Court.
If the intention of the Legislature was to provide a cheap and not expeditious remedy to the claimants, then the remedy would be incomplete if it was given only at the original stage and not at the appellate stage.
Having regard to these circumstances we are satisfied that the term "decree" used in Sch.
II, article 11, is referable to a decree as defined in section 2 (2) of the Code of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch.
II, article 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sch.
II article 11 of the Court Fees Act and ad valorem court fees under Sch.
I article 1 are not leviale.
Apart from the above considerations, it is a well settled principle interpretation of statute, hat where the Legislature uses an expression bearin a well known legal contation it must be premised to have used the said expression in the sense in which it has been so understood.
Craies on "Statute Law" observes as follows: "There is a well known principle of construction, that where the legislature uses in an Act a legal term which has received judicial interpretation, it must be assumed that the term is used in the sense in which it has been judicially interpreted unless a contrary intention appears.
" In Barras vs Aberdeen Steam Trawling and Fishing Company Lord Buckmaster pointed out as follows: "It has long been a well establilshed principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial inter pretation, the subsequent statute which incorporates the same word or the samerphrase in a similar context must be construed so that the word or phrase is interpreted according the meaning that has previously been ascribed to it." 679 Craies further points out that the rule as to world judicially interpreted applies also to words with well known legal meanings, even though they have not been the subject of judicial interpretation.
Thus applying these principles in the instant case it would appear that when the Court Fees Act uses the word "decree" which had a well known legal significance or meaning, then the Legislature must be presumed to have used this term in the sense in which it has been understood, namely, as defined in the Code of Civil Procedure even if there has been no express judicial interpretation on this point.
There are a number of decisions which have taken the view that Sch.
II article 11 governs appeals against decisions of the Tribunal.
The matter was fully considered in a decision of the Bombay High Court in Jamnaudas Dharamdas ' case (supra) where Shah, J., observed as follos: "But the expression "decree" has not been defined in the Court fees Act.
The expression "decree" as used in the Court fees Act.,ppears to have the same connotation as that expression has in the Code of Civil Procedure.
The Court fees Act is intended to be a complementary piece of legisiation to the Code of Civil Procedure dealing with payment of court fees in matters which are tried by the civil Courts.
If the expression "decree" has the same connotation as that expression has in the Code of Civil Procedure, it would be difficult to regard an adjudication made by a Tribunal appointed under the as a decree within the meaning of the Court fees Act, even though it is so called under the .
In order that an adjudication should amount to a decree under the Code of Civil Procedure, it must be a formal expression of an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit.
The proceedings to be initiated by displaced persons for adjustment of their debts or by displaced creditors or displaces, debtors are by applications.
Such applications cannot be regarded as plaints in civil suits and are not required by law to bear ad valorem court fee under schedule 1, cl. 1 of the Court fees Act.
It is true that the provisions of the Code of Civil Procedure are made applicable to the proceedings which are commenced by applications.
But the proceedings under the Act cannot be called suits.
Again the Tribunal in dealing with an application under section 6 of the is not merely deciding a claim made by a debtor, but is dealing with an application for adjustment of his debts.
x x x x Even if the Legislature has chosen to call such an award a decree, it cannot amount to a decree within the meaning of sub section (2) of section of the Code of Civil Procedure and in my judgment the award cannot be regarded as a decree within the meaning of Schedule II cl. 11, of the Court fees Act.
" 680 We find ourselves in complete agreement with the aforesaid observations made by Shah, J. In Parmanand Lokumal and other vs Khudabadi Bhaibund Cooperative Credit Bank Ltd. and Others, while construing an almost identical question, the Calcutta High Court observed as follows: "It is to afford relief to displaced persons and that purpose may well be frustrated, if, in cases of preliminary dismissals of the applications the appeals are to be filed with ad valorem court fee on the disputed amount, even assuming that it is capable of ascertainment at the particular stage.
Beaning that in mind and having regard to the scheme and structure of the Act and the nature of the impugned decree, namely, of dismissal on the preliminary finding of the failure of the appellants to prove the necessary status, and, the propriety of that finding being the sole question for consideration in the appeal, so far as the appellant are concerned, we do not think that it would be improper to hold that the subject matter in dispute in the appeal is that question of status which plainly is incapable of money value.
The appeal thus would come under Schedule II, article 17, of the Court fees Act, provided, of course, the memorandum of appeal is in a 'suit ' as contemplated in the opening paragraph of the Article.
x x x Even if the subject matter in dispute in the appeal be held to be the relief of reliefs, claimed by the appellants in their original application, the decree, impugned being one of dismissal of the same, we do not think that any other view on the question of its valuation should be taken." The Calcutta High Court appears to have made a distinction between a decree passed by a Tribunal dismissing the claim of a petitioner on a preliminary ground that the claimant was not able to prove his status and therefore had no locus standi to file the claim and a case where the claim was dismissed or decreed on merits.
According to the High Court, in the former case a decision given by the Tribunal would be only an order, whereas in the latter case it would be a decree.
We, however, do not agree with this part of the observation because as pointed out by us the statute makes no distinction at all between the decision of the Tribunal which rejects the claim either on a preliminary point or on merits and one which allows the claim.
Both these kinds of decisions have been termed as decree passed by the Tribunal.
In these circumstances, therefore, there does not appear to be any warrant for the distinction which seems to have been drawn by the High Court between a decree passed by a Tribunal on a preliminary point or that passed on merits.
Even otherwise, according to the general scheme of the Code of Civil Procedure whether the suit culminates in the rejection of the claim of the plaintiff, and thereby in dismissal of the suit or in acceptance of the claim of the plaintiff, where the suit is decreed the final adjudication given by the Court is a decree whether it is one dismissing the claim or one allowing it.
681 The distinction between a decree which is one of dismissal of the suit or a decree which amounts to an acceptance of the claim of the plaint is too artificial to merit any consideration.
While, therefore, we do not agree with some of the observations of the Calcutta High Court, we fully agree with the other part of observations where the Calcutta High Court has held that ad valorem court fees are not payable.
Similarly, in Punjab National Bank Ltd. vs Firm Isardas Kaluram, a Full Bench of the Rajasthan High Court observed x x x x x x "We are therefore of opinion that the order passed in this case, though it finally determined the application of the appellant, was not a decree, because it did not a determine the claim which, in the circumstances in which that word has been used in section 11(2) must relate to the existence or the amount of the debt due to the creditor.
The creditor, therefore, if he has a right of appeal, has to pay court fee under Sch.
article 11 which mentions appeals which are not preferred from a decree or an order D. having the force of a decree.
Here the order, though it finally determined the application under section 10, was not a decree; nor did it have the force of a decree for it is not strictly in accordance with the terms of section 11(2).
x x x x x x We feel that this Act is an ameliorative measure for the benefit of displaced persons.
It should be strictly interpreted, and only those orders should be considered decrees, which come strictly within the terms of section 9, 11(2) and 14(2).
Where however the order does not come strictly within the terms of those provisions, it should not be tracted as a decree, but only as an order determining the application.
" Here also a distinction was sought to be drawn between a dismissal of the application on the ground that the claimant was not a displaced person and a decision which decreed the claim on merits.
Barring this disinction made by the High Court, which we do not approve, we are in agreement with the other observations made by the Full Bench which are to the effect that the order passed by the Tribunal not being a decree clearly falls within the ambit of Sch.
II, article 11, of the Court Fees Act.
In a later decision of the same High Court in The Punjab National Bank Ltd. vs The American Insurance Company Ltd. the Court observed as follows: 682 "On an analysis of section 18(2), it cannot be said that the order under appeal passed by the learned Civil Judge is a decree or order having the force of a decree.
The appellant was, therefore, not liable to pay ad valorem court fee as required under Schedule I, article 1, of the Court Fees Act.
The tribunal is competent to pass a decree only after submitting a report to the Insurance Claims Board and after receiving their proposal.
If this is not done and the application is rejected on the ground that the loss did not take place in the circumstances specified in section 18(1) that order cannot be said to be a decree.
The reasoning of the Full Bench case with regard to sec.
11(2) is applicable to the present case which is under sec.
" The Punjab High Court in section Sohan Singh vs Liverpool and London and Globe Insurance Co. Ltd. appears to have taken the same view and observed as follows: "Having regard to the general purpose of the Act, which is almost entirely intended to benefit displaced persons and relieve them from the hardships consequent on their displacement, I do not think there can be any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15 8 1947 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August.
x x x x x .
My own view is that it was certainly never anybody 's intention that displaced persons, whether debtors or creditors should have to pay 'ad valorem ' court fees on appeals against orders dismissing their applications, and I am inclined to share the view of Khosla, J., that an order dismissing an application, whether under section 5 or section 10 or 13, is merely a final order which does not necessitate the drawing up of any decree sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all.
" We find ourselves in complete agreement with the observation made by Falshaw, J., in the decision referred to above.
Our attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary view, namely, Kishandas vs Parasram; Nabh Raj Notan Das vs Sidhu Ram Mool Chand and Sita Ram vs Mool Chand.
These decisions have on doubt held that decision of the Tribunal under the 683 Act amounts to a decree and, therefore, does not fall within the ambit of Sch.
II article 11 and ad valorem court fee is payable under the Court Fees Act.
We are, however, unable to agree with the view taken by these Courts.
In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding.
These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute.
For these reasons, therefore, that the court fee of Rs. 5/ paid by the appellants on the cannot be held to be good law and must, therefore, be over ruled.
On a consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch.
II, article 11, and the view of the Taxing Judge that ad valorem court fee was payable under Sch.
I, article 1, of the Court Fees Act was legally erroneous.
We hold, therefore, that the court fee of Rs. 5/ paid by the appellants on the memorandum of appeal was sufficient.
Before concluding we must notice an argument advanced by the learned counsel for the respondents.
It was submitted that under section 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court.
It was submitted by Mr. Dikshit that in view of this provision the appeal to this Court by special leave was not maintainable.
We are, however, unable to agree with this contention.
Even though an order of the Taxing Judge may be final under section 5 of the Court Fees Act, the power of this Court under article 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament.
The finality which may attach under section 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court.
Reliance, however, seems to have been placed on a decision of this Court in section Rm.
section Sp.
Satheppa Chettiar vs section Rm.
Ramanathan Chattiar and particularly on the following observations made by this Court: "In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under section 7(iv) (b) of the Act is final under the provisions of section 5 of this Act.
That is why we have not allowed the merits of this order to be questioned in the present appeal.
We must, therefore, deal with the appellant 's contention on the basis that the court fees on his memorandum of appeal must be levied under section 7(iv) (b) of the Act.
" These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems 684 to us that this Court was not at all called upon to decide the question of the effect of section 5 of the Court Fees Act as overriding the provision of article 136 of the Constitution.
The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J., who spoke for the Court, where he has clearly mentioned that the Court was not called upon to consider this point, thus: "We are, however, not called upon to consider the point as to whether section 7 (v) would apply to the present suit or whether the present suit would fall under section 7(iv) (b).
" Further more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court fees and confined his arguments only to the question as to whether the court fees should be levied under section 7(iv) (b) of the Court Fees Act.
In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents.
For these reasons the contention raised by the respondents on this score must be overruled.
The result is that the appeal is allowed, the order of the Taxing Judge directing payment of the ad valorem court fees is set aside and the High Court is directed to hear and dispose of the appeal in accordance with the law on the court fee already paid by the appellants which, in our opinion, is sufficient.
In the peculiar circumstances of this case and in view of somewhat uncertain position of the state of law, we make no order as to costs.
P.B.R. Appeal allowed.

summary/full:
Schedule II, Article 11 of the Court Fees prescribes a sum of Rs. 2/ as court fees in the case of a memorandum of appeal presented to a High Court when the appeal is not from a decree or order having the force of a decree.
The Tribunal appointed under the dismissed the petition filed by the appellant claiming certain sums from the respondents.
In appeal to the High Court from the decision of the Tribunal did not amount to a decree within the meaning of section 2(2) of the Code of Civil Procedure.
The taxing Judge, to whom question of payment of court fees was referred, came to the conclusion that the appellant should pay ad valorem court fees under Schedule I, Article 1 of the Court Fees Act.
On the question whether the decision of the Tribunal was a decree within the meaning of section 2(2) C.P.C. Allowing the appeal to this Court, ^ HELD: The memorandum of appeal in the instant case falls within the ambit of Schedule II, Article 11 of the Court Fees Act and the view of the taxing Judge that ad valorem court fees were payable under Schedule I Article 1 was legally erroneous.
[683C] (1) (a) In the definition of "decree" contained in section 2(2) of the Code of Civil Procedure, three essential conditions are necessary: (i) that the adjudication must be given in suit; (ii) that the suit must start with a plaint and culminate in a decree; and (iii) that the adjudication must be formal and final and must be given by a civil or revenue court.
[677E F] Under the 1951 Act, special Tribunal was created to enquire into the claims of displaced debtors or creditors.
It cannot be called a court in any sense of the term because the legislature had made a clear distinction between a Tribunal and a courts.
Secondly, since proceedings before a Tribunal statute with an application and not with a plaint the other important ingredient of a decree is wholly wanting.
Thirdly the claim before the Tribunal had been described as a preceding rather than a suit.
Therefore, none of the requirements of a decree is to be found in the decision given by the Tribunal even though the legislature may have described the decision given by the Tribunal even though the legislature may have described the decision as a decree.
A mere description of the decision of the Tribunal as a decree does not make it a decree within the meaning of the Court Fees Act.
[677G H] (b) The term "decree" used in Schedule II, Article 11, is referable to a decree as defined in section 2(2) of the Code of Civil Procedure.
As the decision of the Tribunal in the instant case does not fulfil the requirements of a decree, 665 it is not a decree within the meaning of Schedule II, Article 11 of the Court Fees Act.
[678D] Mannan Lal vs Mst.
Chhotaka Bibi ; Ram Prasad vs Tirloki Nath, ; Dawood Karim Ashrafi vs City Improvement Board.
; Antala Gope vs Sarbo Gopain, AIR [1962] Pat. 489; Mrs. Panzy Fernadas vs Mrs. M. F. Cusoros & others AIR [1963] All. 153; Dundoppa vs
S G. Motor Transport Company.
AIR [1966] Mys,. 150; Irshad Husain vs Bakshish Hussain ; Harrish Chandra Chatteree vg.
Bhaoba Tarini Debi, 8 C.W.N. 321; Taxing Officer, High Court Appellate side vs Jamnadas Dharamdas ILR ; Barras vs Aberdeen Steam Trawling and Fishing Company ; 411; Parmanand Lokumal and others vs Khudabadi Bhaibund Co operative Credit Bank Ltd. and others, AIR [1958] Raj. 146; The Punjab National Bank Ltd. vs The American Insurance Company Ltd. ILR and section Sohan Singh vs Liverpool and London and Globe Insurance Co. Ltd. AIR , referred to.
Parmanand Lokumal and others vs Khudabadi Bhaibund Co opertive Credit Bank Ltd. and others, AIR [1958] Cal.
675; Punjab National Bank Ltd. vs Firm Isardas Kaluram AIR ; Kishandas vs Parasram AIR and Sita Ram vs Mool Chand, ,. not approved.
(c) Where a legislature uses an expression bearing a well known legal connotation it must be presumed to have used the said expression in the sense in which it has been so understood.
Therefore, when the Court Fees Act uses the word "decree" which had a well known legal significance, the legislature must be presumed to have use this term in the sense in which it is which it is understood in the Civil Procedure Code.[678F; 679B] Barras vs Aberdeen Steam Trawling and Fishing Company ; , 411.
referred to.
There is no force in the contention of the respondent that under section 5 of the Court Fees Act the decision of the taxing Judge was final and could not be re opened in any court and as such no appeal under Article 136 was maintainable.
Even though the order of the taxing Judge may be final under section 5, the power of this Court under Article 136 will over ride any stamp of finality given by a statute.
The finality under section 5 cannot derogate from the power conferred by the Constitution on the Supreme Court.
[683E] section Rm Ar.
section Sp.
Satheppa Chettiar vs section Rm.
Ramanathan Chettiar , held inapplicable.