P L D 1967 Lahore 1030 (PLP)

MUHAMMAD AKRAM, J.‑‑Until recently rule 10 of the Rules contained in Chapter 4‑J, Volume V of the High Court of West Pakistan Rules and Orders for the issue of writs in the nature of habeas corpus, mandamus, prohibition, quo‑warrant and certiorari under Article 170 of the Constitution of the Islamic Republic of Pakistan, framed under clause 27 of the Letters Patent read with para. 5 of Part 11, Schedule 3 of the Constitution of Islamic Republic of Pakistan, 1956, prescribed that with the exception of the petition for a writ of habeas corpus, Court a fee of Rs. 5 shall be payable on every other writ petition filed in this Court. But by Correction Slip No. 175, dated 13th of April 1966 this rule was amended with effect from 16th May 1966 so that the Court Fees payable on these writ petition was raised from Rs.5 to Rs.

100. The amendment has further prescribed a Court‑fee of Rs. 200 for an appeal filed under the Letters Patent against an order passed by a Single Judge in the exercise of writ jurisdiction.

2. On the 3rd of January 1967, Ahmad Khan petitioner filed this writ petition against the respondents in this Court under Article 98 of the Constitution of Islamic Republic of Pakistan challenging the validity of the order of the authorities putting the crown land in his occupation to auction. For the present it is not necessary to go into the merits at all. The petitioner has affixed a Court‑fee of Rs. 5 on the writ petition payable under the aforesaid rule before its amendment. Along with it the petitioner has also filed Civil Miscellaneous Petition No. 189 of 1967 purporting to be under section 151, Code of Civil Pro cedure, challenging the validity of the amendment made to the rule by which the Court‑fees payable on the writ petitions was raised to Rs.

100. It is alleged that "the Court Fees Act and the Constitution of Islamic Republic of Pakistan, 1962 do not permit the enhancement of the Court‑fee by this Honourable Court except by the Legislature" and that in this respect the rule making powers of this Court are altogether restricted. The miscellaneous petition was entrusted to us for disposal by the learned Chief Justice and we have heard the counsel for the petitioner on it in limine.

3. Chapter II in the Court Fees Act (VII of 1870) is devoted separately to the matter of the "Fees in the High Court". Section 3 in this Chapter deals with the manner of the collection of the Court‑fee in the High Court. So far as the High Courts are concerned section 4 is the main charging section under the Act. This is as under:‑ "No document of any of the kinds specified in the First or Second Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited or recorded in, or shall be received or furnished by, any of the said High Courts in any case coming before such Court in the exercise of its extraordinary original civil jurisdiction; or in the exercise of its extraordinary original criminal jurisdiction; or in the exercise of its jurisdiction as regards appeals from the judgments (other than judgments passed in the exercise of the ordinary original civil jurisdiction of the Court) of one or more judges of the said Court, or of a division Court; or in the exercise of its jurisdiction as regards appeals from the Courts subject to its superintendence; or in the exercise of its jurisdiction as a Court of reference or revision; unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document." By this section the Legislature has prescribed the Court‑fee payable on the documents taken by the High Court in the exercise of its extraordinary original civil jurisdiction, extraordinary original criminal jurisdiction, appellate jurisdiction, and as a Court of reference or revision. Inter alia, this does not provide for the Court‑fee chargeable on the documents received by the High Court in the exercise of its ordinary original civil juris diction. During the course of his arguments, the learned counsel for the petitioner has laid emphasis on the argument that in entertaining the petition under Article 98 of the Constitution, in a matter like the present, the High Court is exercising its "extra ordinary original civil jurisdiction" vested in it under the law, for which the Court‑fee was fixed by the Legislature under section 4 of the Court Fees Act and this, according to the learned counsel, was not liable to be altered by the rules framed by the High Court. In his opinion under item No. 1 (d) of Schedule II, read with section 4 of the Court Fees Act, a Court‑fee of Rs. 2 only is payable on an "Application or Petition when presented to a High Court" and the present writ petition with a Court‑fee of Rs. 5 on it is more than sufficiently stamped.

4. Therefore, it has become necessary to examine the nature of the writ jurisdiction exercised by the High Court under Article 98 of the Constitution of the Islamic Republic of Pakistan. The Letters Patent of the High Court of West Pakistan regulate its jurisdiction. It is invested with civil jurisdiction, criminal jurisdiction, Testamentary and Intestate jurisdiction, and matri monial jurisdiction as provided in the different clauses of the Letters Patent. The civil jurisdiction is conferred on the. High Court by clauses 9 to

12. Except for the Karachi Bench, this Court does not possess any "ordinary civil original jurisdiction" under the Letters Patent. Clause 9 merely confers "extra ordinary original civil jurisdiction" on this Court to remove and to try suits falling within the jurisdiction of the subordinate Courts subject to its Superintendence. Clauses 10 and 11 invest the appellate civil jurisdiction in the High Court and clause 12 confers authority on the High Court over the infants, idiots and lunatics within the Province. But what is the kind of jurisdiction conferred on the High Court under Article 98 of the Constitution? In the Indian jurisdiction a Full Bench of Calcutta High Court in the Chairman, Budge Municipality v. Mongru Mia and others (A I R 1953 Cal. 433) while examining the nature of the jurisdiction conferred on the High Court under Article 226 of the Constitution of India (corres ponding to Article 98 of our Constitution) observed:‑ "All that Article 226 does is to empower the High Courts to give relief in a new form and in accordance with a mere direct procedure or, in other words, it puts the High Courts in possession of a new remedy for grievances which previously had to be redressed in other ways. I do not therefore think that the argument that in exercising jurisdiction under Article 226, the High Courts act as special tribunals, has any force. They still function as ordinary Courts and it is only the procedure in respect of matters lying within their ordinary jurisdiction that the form of relief that may be given which are changed." In M. Ramayya v. The State of Madras (A I R 1952 Mad. 300) the Court remarked that: "the power to issue the Writ is original and the jurisdiction exercised is original jurisdiction". The Court further observed that: "the exercise of this jurisdiction is in the nature of "original civil jurisdiction" and not "revisional". However, in B. H. Satyanarayanamurti v. Income‑tax Appellate Tribunal (A I R 1957 Andh. Pra. 123), the Full Bench held:‑ "It is settled law that the High Court was issuing writs in the nature of mandamus, prohibition, quo warranto and certiorari in exercise of its Extraordinary Original Jurisdiction . . . . . . . . . . . . . . . . . . . Article 226of the Constitution conferred express power on the High Court to issue the writs mentioned therein throughout the territories in relation to which it exercises jurisdiction. The territorial limits of the jurisdiction of the Andhra Pradesh High Court extends throughout the State of Andhra Pradesh and, therefore, the jurisdiction of the High Court under that Article may be conveniently described as Extraordinary Original Jurisdiction as distinguished from the Ordinary Original Civil Jurisdiction of a High Court." But with due deference the only reason assigned for holding that this is "extraordinary" jurisdiction is that the powers of the Andhra Pardesh High Court under Article 226 of their Constitution extend over the whole of that Province. The learned Judges in that case have merely assumed that it is the "Settled law" that this jurisdiction of the High Court was "extra ordinary" as distinguished from the "ordinary" original jurisdiction. The Patna High Court in the Full Bench case of the Collector of Monghyr and others v. Maharaja Partap Singh Bahadur and others (A I R 1957 Pat. 102) has likewise assumed without any discussion that the jurisdiction of the High Court under Article 226 of their Constitution is an "extraordinary" jurisdic tion vested in it. Recently the Supreme Court of Pakistan in Mumtaz Khan v. Chief Settlement and Rehabilitation Commis sioner (P L D 1966 S C 276) has held that the writ jurisdiction of the High Court could be described as "original" jurisdiction. In this connection the learned Court observed:‑ "The writ jurisdiction we are considering here, is akin to the power to issue high prerogative writs and may fairly be described as original jurisdiction. The proceedings originate in the High Court itself and may be directed against orders of subordinate judicial or semi judicial tribunals or even in certain cases, of administrative tribunals or authorities and may be described as pertaining to the extraordinary original jurisdic tion of the High Court." In that case the Supreme Court has held that the order passed by a Single Judge of the High Court in writ jurisdiction, pertaining to a civil matter, tentamounts to the exercise of "original jurisdiction" within the contemplation of section 108 of the Government of India Act and was, therefore, appealable under clause 10 of the Letters Patent. In the judgment it was repeatedly emphasized that this was the original jurisdiction of the High Court, as distinct from the appellate jurisdiction vested in it. The further question as to whether the jurisdiction exercised by the High Court was "ordinary" or "extraordinary" in its nature was not actually raised before the Supreme Court in that case and with profound respect if appears to us that the Supreme Court did not decide this matter. The above remarks by the Supreme Court to the effect that the jurisdiction was "extraordinary" are general in their nature and cannot be construed in the technical sense of the term to distinguish that from the "Ordinary jurisdiction". Within this limited sphere, the Supreme Court did not distinguish the one specie of jurisdic tion from the other and made those observations, we say so with respect, simply to bring out the more efficacious and extensive nature of the remedy was available against the orders passed by the subordinate judicial, semi judicial and administrative tribunals and authorities, in the writ jurisdiction. Otherwise there is nothing extraordinary about this jurisdiction. The High Court functions as an ordinary Court established by the law of the land in dis pensing justice under Article 98 of the Constitution and no extraordinary or special steps are necessary to invoke it. In this respect in our opinion, the real distinction was drawn by the Privy Council .between the "ordinary" and "extraordinary" jurisdiction of the High Court In the matter of Ca'n Dass Na'rroondas Navirahu and others (1). Their Lordships of the Privy Council after examining the various provisions of the Royal Charter of the Bombay High Court observed:‑ "But it was strongly contended at the Bar that the jurisdiction though civil and original was not ordinary; and Mr. Rigby argued that the passages of the charter which had just been epitomized divided the jurisdiction into four classes ordinary, original, extraordinary original, appellate, and those special matters which are the subject of special and separate provisions. But their Lordships are of opinion, that the expression `ordinary jurisdiction' embraces all such as is exercised in the ordinary Courts of law and without any special steps being necessary to assume it; and that it is opposed to extraordinary jurisdiction, which the Court may assume at its discretion upon special occasions and by special orders. They are confirmed in this view by observing that, in the next group of clauses which indicate the law to be applied by the Court to the various classes of cases, there is not a four‑fold division of jurisdiction but a three‑fold one into ordinary, extraordinary and appellate." Applying this test it, therefore, follows that jurisdiction exercised by the High Court under Article 98 of the Constitution "cannot properly be described as an "Extraordinary" one. It is more appropriately the "Ordinary" jurisdiction conferred on the High Court, in addition to the Letters Patent, by the Constitution under Article 98 of the Constitution. The very Constitution in clause (I L R 13 Bom. 520 at 533) of Article 98 itself provides that a High Court shall have such jurisdiction as is conferred on it by "this constitution or by law". The Full Bench of the Patna High Court in Collector of Monghyr and others v. Moharaja Partap Bahadur and others (A I R 1957 Pat. 102) to which we have already referred, has further held that in proceeding under Article 226 of the Indian Constitution, the High Court is not concerned with the determination of the civil rights of the parties, the only object of such a proceeding is to ensure that the law of the land is implicitly observed and that the various tribunals and authorities act within the limits of their respective jurisdiction and therefore these proceedings in the High Court are not civil proceedings. But this, and we say so with respect, is to ignore the well‑recognised compartments of law, Civil and Criminal, within which the justice is administered in our countries. Under Article 98(2)(a) of the Constitution of Pakistan the writ cannot be issued except at the instance of an "aggrieved party" vested with a valuable right in him. Our Supreme Court in Mumtaz Khan v. Chief Settlement and Rehabilitation Commis sioner (P L D 1966 S C 276) has also pointed out with approval that orders in "civil matters" passed by a Single Judge of the High Court under the corresponding provisions of Article 226 of the Indian Constitution were held in several cases arising in the Indian jurisdiction, to be appealable under the Letters Patent. A writ issued by a superior Court in connection with the decision by an inferior tribunal upon civil rights `of the parties agitated in a civil proceeding, can be characterised as a "civil" proceeding as discussed by Mr. A. K. Brohi on page 446 in his treaties on the "Fundamental Law of Pakistan". From the above discussion, we conclude that the jurisdiction of the High Court to entertain writ petitions under Article 98 of the Constitution arising out of proceedings of a civil nature, cannot be regarded as the "extraordinary original civil jurisdiction" within the meanings of section 4 of the Court Fees Act. Rather it will be more appropriate to classify it as its. "ordinary original Civil Jurisdiction". Be that as it may, it appears to us to be clear that the Court Fees Act, as such, does not at all prescribe any fee for the petition filed in the High' Court, in the exercise of the jurisdiction vested in it, under Article 98 of the Constitution. Therefore, there is nothing in the Court Fees Act which is inconsistent with rule 10, Chapter 4‑J, Volume V of 'the High Court Rules and Orders.

5. We have now to examine the scope and the real extent of the rule‑making powers vested in the High Courts. The history of this power in India can be traced back to the East India' (High Courts of Judicature) Act, 1861 under which the High Court in the three Presidencies were at first established. Section 15 of the Act was as under:‑ "Each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its appellate jurisdiction . . . . . . . . . and shall have power to make and issue General Rules for regulating the Practice and Proceedings of such Courts, and also to prescribe Forms for every proceedings in the said Courts . . . . and also to settle Table of Fees to be allowed to the Sheriff, Attorneys, and from time to time to alter any such Rule or Form or Table; and the Rules so made, and the Forms so framed, and the Tables so settled shall be used and observed in the said Courts, provided that such General Rules and Forms and Tables be not inconsistent with the Provisions of any Law in force, and shall before they are issued have received the sanction, in the Presidency of Fort William, of the Governor‑General‑in‑Council, and in Madras or Bombay of the Governor‑in‑Council of the Presidencies." Under the Government of India Act, 1915 these powers of the High Courts establish in British India were split up and incorporated in sections 106 and 107 of that Act. In section 106 it was laid down: "The several High Courts are Courts of record and have such jurisdiction . . . . . . . . , and all such powers and authority over or in relation to the ad ministration of justice, including power to appoint clerks and other ministerial officers of the Court, and powers to make rules for regulating the practice of the Court, as are vested in them by letters patent, . . . . . . " Under section 107 of the Act each of the High Courts had the power of Superinten dence over the Subordinate Courts, and, inter alia, could make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and "settle tables of fees to be allowed to the Sheriff, Attorneys, and all clerks and officers of Courts." To this an important proviso was also added that such rules, forms and tables shall not be inconsistent with the provisions of any Act for the time being in force, and shall require the previous approval, in the case of the High Court at Calcutta, of the Governor‑General. in‑Council and other cases of the local Government. Corresponding to these two sections similar provisions were, then, incorporated in sections 223 and 224 respectively of the Government of India Act, 1935. In turn these were superseded by similar provisions made in sub‑paras. (1) and (2) of para. 5, Part II of the Third Schedule of the Constitution of the Islamic Republic of Pakistan‑1956. Finally now their place is taken by Article 101 of the present Constitution. This is as under:‑ "Subject to this Constitution and the Law, a High Court of a Province may, with the approval of the a Governor of the Province, make rules regulating the practice and procedure of the Court or of any other Court subordinate to it." The rule‑making power was also conferred on our High Court by the provisions made in the Letters Patent. The Letters Patent of the High Court of West Pakistan is based on the Letters Patent of the High Court of Judicature at Lahore established on the 21st of March 1919 under the Government of India Act, 1915. This was handed down to us with suitable adaptations made under the various Legislative enactments from time to time. Clause 27 of the Letters Patent of the High Court of West Pakistan lays down: "And we do further ordain that it shall be lawful for the High Court of Judicature at Lahore from time to time to make rules and orders for regulating the practice of the Court and for the purpose of adopting, as far as possible, the provisions of the Code of Civil Procedure, being an Act, No. V of 1908, passed by the Governor‑General‑in‑Council and the provisions of any law which has been or may be made, amending or altering the same, by competent legislative authority for India, to all proceedings in its testamentary, intestate and matrimonial jurisdiction, respectively." Therefore, both under this clause in the Letters Patent and under Article 101 of our Constitution wide powers have been given to this Court to "make rules regulating the practice and procedure of the Court". Coutts Trotter, J. in M. Muhammad Ishaq Sahib v. Muhammad Moideen and others (A I R 1922 Mad. 421) tracing this power to section 15 of the High Court Charter Act observed: "It has always been maintained that the power under which fees are levied on the Original Side of the High Court was derived from the general powers to issue general rules for regulating the practice and procedure of the Courts. It is argued and I think it is rightly argued, that the power to make regulations for procedure necessarily includes imposition of fees and the collection of them, and the Court can collect the fees only through its proper officers. If that be right, then the fee leviable on an appeal is the fee payable for the time being to the officers of the High Court by virtue of the High Courts Charter Act directly." However, Leach, J. in Manng Ba Thaw v. M. S. V. M. Chettiar (A I R 1935 Rang. 460) instead depended on clause 35 of the Letters Patent (corres ponding to clause 27 of the Letters Patent of this Court) for this power to make rules for the prescription of Court‑fees in the High Court. As far as we can see all the High Courts are unanimous that they had the power to impose Court‑fee, though there is difference of view on ‑the source of such power vesting in them. Coutts Trotter, J. found it in the High Court's general powers for regulating the practice or procedure of the Courts conferred by section 15 of the Charter Act. Leach, J. of the Rangoon High Court discovered it in clause 35 of the Letters Patent itself. This matter is discussed at length by a Division Bench of the Madras High Court in R. M. Seshadri v. The Province of Madras. The amendment in question in rule 10, Chapter 4‑J, Volume V of the High Court of West Pakistan Rules and Orders, in the instant case, was made with the approval of the Governor of the Province of West Pakistan as required by Article 101 of the Constitution. As such it is hardly necessary for us to examine the scope of clause 27 of the Letters Patent of this Court in its comparison with Article 101 of the Constitution. It is perhaps of some interest to notice here that in B. H. Satyanarayanamurti v. Income‑tax Appellate Tribunal before the Full Bench an argument was attempted that the High Court's power to prescribe Court‑fee in respect of the proceedings taken before it was preserved from State Legislative interference inasmuch as the organisation of a Court involves by necessary implication the power, inter alia to prescribe fees on the proceedings taken before it and that the Constitution by excluding that power (item 3 of List II of the Seventh Schedule of the Constitution of India) from the State List, rested it exclusively with the High Court. But this contention was repelled by the Court. It was held that the Andhra Legislature has the power to make laws in respect of Court‑fee taken in the High Court and the provisions of the Court Fees Act passed by the Legislature, wherever applicable, should prevail over the rule made by the High Court.

6. The learned counsel for the petitioner has next raised a subtle objection to the amendment in question in rule 10, Chapter 4‑J, Volume V, High Court Rules and Orders introduced by correction slip No. 175 on the 13th April 1966, to the effect that it is ultra vires of Article 237 of the Constitution and we have given our serious thought to the arguments addressed to us in this connection. This Article lays down as under:‑ "Notwithstanding anything in this Constitution, all taxes and fees levied under any law in force immediately before the commencing day shall continue to be levied until they are varied or abolished by Act of the appropriate Legislature." The provisions of the Article are overriding in their character and are applicable notwithstanding anything to the contrary in the Constitution. But the meanings to be assigned to the expression "law" used in the context, will determine the true scope of the Article. This term is nowhere defined in the Constitution. Article 225(1) lays down that except as provide by that Article, all "existing laws" shall, subject to this Constitution, continue in force, so far as applicable and with necessary adaptations, until altered, repealed or amended by the appropriate Legislature. In that context and for the purposes of that Article, clause (7) has defined the expression "existing law" to mean "all laws (including Ordinances, Orders‑in‑Council Orders, rules, bye‑laws, regulations and Letters Patent constitutin8 a High Court, and any notification and other legal instruments having the force of law) in force in Pakistan or any part of Pakistan, or having extra‑territorial validity, immediately before the commencing day." The purpose behind these two Articles is the same, i.e. to continue in force certain laws by adaptation and from a contrast in their language it is evident that the expression "law" in the context of Article 237, is not used in the wider but a narrower sense. In the restricted sense, in the context, it does not mean that the rules prescribing fees, which are subordinate in their force and validity, were adapted by the Constitution and suddenly placed at a much higher pedestal; so that the subordinate authority which had made the rules is also bereft of all its powers to amend, modify, alter and even to withdraw them. To give effect to the argument by the learned counsel would mean that this Article has gone to the extent of altogether abrogating the powers in the authorities wherever residing in that respect. This does not appear to be the intention behind Article 237 of the Constitution. Therefore, in our opinion Article 237 is applicable to all taxes and fees levied under any law made by legislative enactments, which can be varied and abolished by Act of the appropriate Legislature after the commencing day. It has no application, say to the rules on the subject made by a subordinate authority.

7. Article 90 of the Constitution is not at all relevant to the present discussion. It lays down that no "tax" shall be levied for the purpose of Provincial Government except by or under the authority of an Act of the Provincial Legislature. In terms it does not apply to the "fees" levied for the purpose.

8. For the reason discussed above we find that the amendment made by the High Court with the approval of the Governor, by Correction Slip No. 175, dated 13th of April 1966 in this respect, in rule 10, Chapter 4‑J, Volume V of the High Court of West Pakistan Rules and Orders, is intra vires and legal. Therefore, we hold that the writ petition filed by the petitioner is not properly stamped as require) by these rules. S. Q. Order accordingly.