P L D 1966 Supreme Court 753 (PLP)

HAMOODUR RAHMAN, J.‑This appeal, by special leave, is directed against the judgment and order of a Division Bench of the High Court of East Pakistan summarily dismissing a petition under Article 98 of the Constitution on the short ground that the petition was not maintainable under sub‑article (5) of Article 98 of the Constitution, because the decision of the Registrar in his capacity as Taxing Officer was a decision of the High Court itself. The appellant's land situated in Mouza Barabo, P. S. Tergaon, Dacca, was requisitioned by the Government of East Pakistan under section 3 of the East Bengal (Emergency) Requisition of Property Act, 1948, in 1959. Subsequently these lands were also acquired in October/November 1960, under section 5 of the said Act for the housing and settlement scheme at Mohammadpur Area. The appellant did not agree to the compensation proposed to be paid by the Government for this acquisition. The Government accordingly under section 7 (a) of the said Act appointed an Additional Subordinate Judge of Dacca as the Arbitrator to assess the compensation. The latter on the 24th September 1963, made an award assessing the compensation payable to the appellant at Rs. 10,767 as against the amount of Rs. 37,525 claimed by her. Being aggrieved by this award the appellant, according to the provisions of the aforementioned Act, preferred an appeal to the High Court valuing the same at Rs. 26,

758. This appeal was filed with a fixed court‑fee of Rs. 6.25 paisas and was classified as a first miscellaneous appeal bearing No. F. M. A. T. 1418 of 1963. The Stamp Reporter of the High Court, however, took the view that this should have been classified as a first appeal from a decree and the appeal should have been valued for the purposes of court‑fees under section 8 of the Court‑Fees Act and the court‑fee thereon should have been assessed ad valorem at Rs. 2,432.50. As the appellant did not agree with this the Stamp Reporter, acting under the provisions of section 5 of the Court‑Fees Act, 1870, referred the matter to the Registrar, who was the declared Taxing Officer under the said section. The relevant provisions of this section are as follows:‑ "

5. When any difference arises between the officer whose duty it is to see that any fee is paid under this chapter and any suitor or attorney, as to the necessity of paying a fee or the amount thereof, the question shall, when the difference arises in any of the said High Courts, be referred to the taxing officer, whose decision thereon shall be final, except when the question is, in his opinion, one of general importance, in which case he shall refer it to the final decision of the Chief Justice of such High Court, or of such Judge of the High Court as the Chief Justice shall appoint either generally or specially in that behalf. . . . . . . . . . . The Chief Justice shall declare .who shall be taxing officer within the meaning of the first paragraph of this section." The Registrar after hearing the learned counsel for the appellant and perusing the report of the Stamp Reporter accepted the latter's view and ordered that the appeal be classified as a first appeal. The appellant was also directed to put in the deficit court‑fee within three weeks. It is not known if the appellant asked that the matter be referred by the Taxing Officer for the final decision of the Chief Justice or of a Judge of the High Court appointed in that behalf by the Chief Justice. But since the order was, under the above mentioned section, a final order the appellant being aggrieved by the decision of the Taxing Officer filed a petition under Article 98 of the Constitution. This petition, as already stated, was dismissed on the short ground that the Registrar acting as a Taxing Officer under section 5 of the Court Fees Act discharges the functions of a High Court and, as such, his decision the decision of the High Court against which a petition under the said Article is not maintainable by reason of the provisions off sub‑article (5) thereof. This sub‑article reads as follows:‑ "(5) In this Article, unless the context otherwise requires `person' includes any body politic or corporate, any authority of or under the control of the Central. Government or of a Provincial Government and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Defence Services of Pakistan." Leave was granted in this case to consider whether the High Court was right in taking this view. It will be observed that under section 5 of the Court‑Fees Act though the Chief Justice of the High Court is empowered to declare as to who shall be the Taxing Officer there is nothing therein which requires that he must necessarily be an officer of the High Court itself. All that can, therefore, be said is that the Taxing Officer is a statutory persona designata nominated by the Chief Justice of the High Court. The main object of the Court‑Fees Act is to secure revenue for the benefit of the State. It prescribes the fees which are to be paid in respect of documents to be used in Courts, how the fees to be paid thereon are to be ascertained and how the sufficiency of such fees are to re determined. It is thus in every sense of the term a fiscal enactment. The mere accident, therefore, of the Registrar of the High Court being nominated as the statutory officer concerned with the collection of revenues does not alter the character of that officer. The High Court has no supervisory jurisdiction or administrative control over the Taxing Officer. His decision is final under the provisions of the statute and it lies in his discretion to determine whether the question involved is one of general importance or not for the purpose of deciding whether a further reference should be made to the Chief Justice or to the appointed Judge for a final decision with regard to the matter of court‑fees. The Taxing Officer under this section is, in our view, not even a Court and certainly not an officer to whom the High Court can be said to have delegated any of its functions, for, the Court‑Fees Act does not say that the High Court or such officer as may be appointed in that behalf by the High Court shall, in the event of any difference arising between the Stamp reporter and any suitor, refer the question to the High Court. The Taxing Officer, is therefore, clearly an officer nominated by the statute to determine a particular class of questions and in doing so he does not act as a Deputy for a Judge or a Bench of the High Court before which the case is to come up for hearing. Looking at the matter even de hors the Court‑Fees Act we find it difficult to appreciate how the Registrar of the High Court when discharging a particular statutory‑ function can be regarded as the Court itself or his order as that of the Court. From 1861 onwards, when an Act for the establishment of High Courts in the Presidencies of British India was enacted by‑ the British Parliament the constitution of such High Courts has been laid down as follows:‑ "The High Court of Judicature at Fort William in Bengal and at the Presidencies of Madras and Bombay respectively shall consist of a Chief Justice and as many Judges, not exceeding 15, as Her Majesty may from time to time think fit to appoint." Under the Letters Patent of 1865 also the same constitution was repeated, and the Chief Justices of the said High Courts were, under clause 8 of the Letters Patent, given authority and power to appoint from time to time or as occasion may require, subject to such rules and restrictions as may be prescribed by the Governor‑General, so many and such clerks and other ministerial officers as shall be found necessary for the administration of justice. It is under this power that the High Courts appointed their Registrars, for; in the Letters Patent there is no mention of any specific officer designated as the Registrar. Under section 101 (2) of the Government of India Act, 1915, again it was said that each High Court shall consist of a Chief Justice and as many other Judges as His Majesty may think fit to appoint. Then the Government of India Act of 1935 prescribed the constitution of a High Court as follows:‑ "Every High Court shall be a Court of Record and shall consist of a Chief Justice and such other Judges as the Governor‑General may from time to time deem it necessary to appoint." In Sub‑Article (3) of Article 165 of the late Constitution of Pakistan it was declared that "a High Court shall consist of a Chief Justice and such number of other Judges as the President may determine." Finally, under the present Constitution also it is said that "a High Court shall consist of a Chief Justice and so many other Judges as may be determined by law or, until so determined, as may be fixed by the President." In Article 242, which is the interpretation Article, it is further provided that the High Court means "the High Court of a Province". It is clear; therefore, that under these constitutional provisions the "High Court" means and has always meant the Chief Justice and the Judges of the High Court. The meaning to be given to the word "High Court" in sub‑article (5) of Article 98 must, therefore, be that which has been provided by the Constitution itself in Article 242 read with the provisions of Article

91. It is difficult, therefore, to appreciate how the High Court could possibly come to the conclusion that the Registrar when acting as a Taxing Officer under section 5 of the Court‑Fees Act is the Court itself within the meaning of sub‑article (5) of Article 98 of the Constitution. Under the appellate side rules of the High Court itself Order 3, rule 1, provides that the "Registrar shall be the executive head of the office" and shall exercise such functions as are assigned to him by the rules. It will thus be noticed that the functions under the Court‑Fees Act are not assigned to him under the Rules of the Court. In this view of the matter we are clearly of opinion that the High Court was wrong in taking the view that the order of the Registrar under the Court‑Fees Act] was an order of the High Court itself so as to make a petition under Article 98 of the Constitution filed for challenging his order passed in a capacity different from that of an officer of the Court under the rules of the Court, is not maintainable. Learned counsel has also urged this appeal on merits but since the High Court has expressed no opinion on this question we do not think it would be proper to do so at this stage except to indicate that the question of interpretation of the provisions of section 8 and Article 11 of Schedule II of the Court‑Fees Act raised by the appellant is not one which can be said to be free from difficulty. On such a question relating to the court fee to be paid in respect of a document to be used in the High Court this Court is entitled to the benefit of the views of the High Court concerned. This appeal is, accordingly, allowed, the order of the High Court is set aside and the petition under Article 98 of the Constitution is remanded to the High Court for disposal in accordance with law. In view, however, of the fact that the respondent in this case is an officer of the High Court we make no order as to costs. A. H. Case remanded.