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Plea In Bombay HC Challenges Vires Of The Maharashtra Court Fees (Amendment) Act, 2017 [Read Petition]

Nitish Kashyap
25 Jan 2018 4:54 AM GMT
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A petition has been filed in the Aurangabad bench of the Bombay High Court challenging the constitutional validity of the Maharashtra Court Fees (Amendment) Act by the Advocates’ Association of Bombay High Court at Aurangabad.

The petitioners have contended that under the said amendment court fees has been hiked much beyond the rates in Central Legislation of 1870.

Legislative History

Mapping out the legislative history of court fees in India, the petition states that Court Fees Act, 1870 had laudable objects of reducing the repressive effect of the exorbitant Court Fees imposed by the XXVI Act of 1867 on general litigation of the entire country and provide for better access to justice. A copy of the Court Fees Act, 1870 along with its statement of object and reasons has also been annexed with the petition.

The petition states that the Court Fees Act, 1870 reduced the Court Fees substantially from what was introduced by the 1867 Act, and imposed maximum limits on ad-valorem Court Fees charged. The Court Fees Act, 1870 was saved after the coming into force of the Constitution by virtue of Art. 277 and 372 of the Constitution and was mentioned in the Adaptation of Laws Orders, 1950.

State Legislation over Provincial Legislation?

The petitioner association has argued that the Court Fees Act, 1870 which was a provincial legislation and was saved by the savings clause in Art. 277 and 372 could not have been modified or repealed by the State legislation of the State of Maharashtra. That the Court Fees Act, 1870 could be amended or repealed only by competent legislature being the Parliament, “as it cannot be imagined that the central legislation passed by the Provincial legislature can be repealed by the State legislation.”

Change after the amendment

The maximum limit for ad-valorem fee was Rs. 3,00,000 prior to the 2017 amendment, whereas it is now raised to Rs. 10,00,000 after the 2017 amendment. Other States have a maximum limit of Rs. 75,000 (Gujarat and Jammu Kashmir), Rs. 50,000 (West Bengal), 15,000 (Assam, Arunachal Pradesh, Nagaland and Mizoram).

The petition states: “State has not increased expenses on the administration of Courts and tribunals in recent years, nor has it proposed any increased quality of service, thus the intention of the State is clearly to use the levy for increase in general revenues of the State. Moreover, the State is receiving huge funds by way of court Fees as there has been explosion in the litigation in the recent past.

There is no proportional increase in the number of courts and other infrastructure having regard to a sudden surge in revenue by way of court fees. It is impermissible for the legislature to effect recovery of amount towards general revenue under the guise of Court Fees and such arbitrary increase tantamounts to taxation which is beyond the legislative competence of the State legislature.”

Access to Justice

The petition argues that access to justice is a basic human right and an essential part of fundamental rights under Articles 14, 16, 21 and 32 of the Constitution.

The petition quotes various judgments of the apex court and conclusions of the 189th report on revision of Court Fees structure to assert that “limits on access to courts including those imposed by Court Fees clearly disproportionately affect the right of the poor to access justice vis-a-vis the rights of those economically empowered to approach the courts.”

Prayer

The petition prays for the court to hold and declare that the Maharashtra Court Fees Act, 1959 as amended from time to time including the Maharashtra Court Fees (Amendment) Act, 2017 as ultra-vires Articles 14, 16, 19(1)(g), 21, 38, 39A, 225, 227 and 372 of the Constitution of India, 1950.

Read the Petition Here



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