Devassia vs State of Kerala and Others

Madhavan Nair, J.—This is a reference made by the Taxing Officer of this Court as to the sufficiency of court-fee of Rs. 25/- paid on a writ appeal preferred u/s 5 of the Kerala High Court Act, 1958 (Act V of 1959). Section 21 in Chapter IV of the Kerala Court Fees and Suits Valuation Act, X of 1960, (hereinafter called the Act) prescribes:

"Fee how reckoned.-The fee payable under this Act shall be determined or computed in accordance with the provisions of this Chapter, Chapter VI, Chapter IX and Schedules I and II."

And Schedule II of the Act, in its Article 3 (iii) (A) (2), provides:

Where the anneal is u/s 5 of the Kerala High Court Act, 1958-

(a)

From an order passed in exercise of appellate jurisdiction

Ten rupees

(b)

From an order passed in exercise of original jurisdiction, which would be appealable under the Code of Civil Procedure, 1908, had it been passed by a Subordinate Court

Ten rupees

(c)

In any other case

One hundred rupees."

According to the Taxing Officer, the court-fee payable on this appeal is Rs. 100/- as per (c) in the above provision.

Counsel for the appellant relies on Section 52, the last section in Chapter IV of the Act, which reads:

Appeals.-The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject-matter of the appeal:

....................................."

and contends that the fee payable on a writ petition being Rs. 25/- under Article 11(r) of Schedule II of the Act, the Article 3(iii) (A)(2)(c), requiring a fee of Rs. 100/-for a writ appeal, is inconsistent with Section 52 and that in cases of such inconsistency the Schedule must yield to the Section in the body of the Act.

The learned Advocate-General urges that Section 52 is a general provision for all appeals, whether in suits, in original petitions, or in interlocutory applications, while Article 3 (iii) (A)(2) relates to a particular category of appeals, viz., appeals u/s 5 of the Kerala High Court Act, and that the rule of construction is always that a particular provision prevails over a general one within the limits of the former.

Shri K.P. Ramunni Menon, as amicus curiae, pointed out that Section 52 by its own expression applies only to cases where the court-fee depends on, and therefore varies with, the subject-mattes of the appeal and that a writ appeal not being of that category is outside the purview of the Section to be governed by Article 3 (iii) (A) (2) only.

Usually, the Schedule in a statute is an appendage prescribing forms or rules for the working of the enactment. But Schedules in fiscal statutes prescribing the rates of taxation are of a different type. They are as much an important part of the Act as any other part thereof and whether the provisions as to rates are to be in the body of the Act or in a Schedule is a matter of mere drafting convenience and not a bifurcation according to the purpose, relevance or importance of the contents. It is very often convenient to draft a table of rates as a Schedule, and a provision directing payment of fee or tax in accordance with it as a Section. The Schedule must then be held and read as part of the Section, and not as a mere appendix thereto.

In such cases the rule of construction is as laid down by lord Sterndale M.R. in Inland Revenue Commissioners v Gittus (1920. I.K.B. 563 at 576) affirmed by a unanimous House of Lords in 1921, 2 A.C. 81, though the instant rule has not been discussed by the noble Lords

"It seems to me there are two principles or rules of interpretation which ought to be applied to the combination of Act and Schedule. If the Act says that the Schedule is to be used for a certain purpose and the heading of the part of the Schedule in question shows that it is prima facie at any rate devoted to that purpose, then you must read the Act and the Schedule as though the Schedule were operative for the purpose, and if you can satisfy the language of the section without extending it beyond that purpose you ought to do it. But if in spite of that you find in the language of the Schedule words and terms that go clearly outside that purpose, then you must give effect to them and you must not consider them as limited by the heading of that part of the Schedule or by the purpose mentioned in the Act for which the Schedule is prima facie to be used. You cannot refuse to give effect to clear words simply because prima facie they seem to be limited by the heading of the Schedule and the definition of the purpose of the Schedule contained in the Act."

If Schedule II is read as part of Section 21 in Chapter IV of the Act, it would obviously be a particular provision, in relation to that in Section 52 which is general, in the matter of computation of court-fees on appeals in Courts and the rule specialia generalibus derogant must apply between them.

The identical question appears to have been raised before the Andhra Pradesh High Court, though not in regard to writ appeals, in Ediga Muniyya v The State of Andhra Pradesh (1961-II Andhra W.R. 113) and in Messrs. Chemicals, Ltd., Midadayole v Messrs. Raka Corporation (Private) Ltd. (1963-11 And W.R. 124). In both the cases the provision in Article 3 of Schedule II was held to prevail over Section 49 of the Andhra Pradesh Court Fees Act, which corresponds with Section 52 of the Kerala Court Fees and Suits Valuation Act.

Even otherwise, as pointed out by Shri Ramunni Menon, Section 52 of the Act applies only to cases where the court fee is computed "on the subject matter of the appeal". It does not apply to proceedings that are charged fixed fees irrespective of the subject-matter involved. In that view, there is no contradiction between Section 52 and Schedule II of the Act. A comparison of Article 11 with Article 3 of Schedule 11 shows that in many cases the court fee prescribed for an application is different from the fee for an appeal therein. It cannot be that by such provisions the legislature meant to create disharmony between them and Section 52. In construing two provisions of law the attempt shall always be to avoid an overlapping or disharmony between them. Vide: Silla Chandra Sekharam Vs. Ramchandra Sahu, and Champaklal Chimanlal Shah v The Union of India (A.I.R. 1964 S.C. 1854). When due weight is given to the expression "on the subject matter of the appeal" in Section 52, a disharmony or overlapping between the Section and Schedule II of the Act is avoided.

I accept the Taxing Officer''s note that the court fee payable on a writ appeal in this Court is Rs. 100/- under the Kerala Court Fees and Suits Valuation Act, 1959. The appellant is given two weeks'' time to pay up the deficit.

The Taxing Officer has also directed to treat the memo of costs-the correct expression is ''table of costs''-appended to the judgment as a decree and to levy court-fee thereon accordingly. Decree by definition, is the formal expression of an adjudication which determines the rights of parties with regard to a matter in controversy between them. A Memo (table) of costs does not satisfy the definition of a decree and is not therefore taxable as such. It is really a part of the judgment (or Order) itself and as such need not bear any separate court fee.

I agree that the court fee payable on this writ appeal is Rs. 100/- and not Rs. 25/- as contended by counsel for the appellant. I also agree that the appellant should have two weeks'' time from this date to make up the deficit of Rs. 75/- in the court fee paid by him.

Chapter IV of the Kerala Court Fees and Suits Valuation Act, 1959, consists of 32 sections, sections 21 to 52. Section 21 provides that the fee payable under that Act shall be determined or computed in accordance with the provisions of Chapters IV, VI and IX of the Act and Schedules I and II thereof; and section 52, that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal.

Article 3 (iii) of Schedule II to the Act deals with the fee payable in certain cases on a memorandum of appeal to the High Court. The material portion of that provision-3 (iii) (A) (2)-reads as follows:

Particulars

Proper fees

Where the appeal is u/s 5 of the Kerala High Court Act, 1958�

00

From an order passed in exercise of appellate jurisdiction

Ten rupees

(b)

From an order passed in exercise of original jurisdiction, which would be appealable under the Code of Civil Procedure, 1908, had it been passed by a Subordinate Court

Ten rupees

(c)

In any other case

One hundred rupees

It is not disputed that the appeal before us is an appeal u/s 5 of the Kerala High Court Act, 1958; and it is clear that if Schedule II alone is attracted, the proper fee payable cannot but be Rs. 100/-

The fee payable on the original petition is Rs. 25/- That is clear from Article 11 (r) of Schedule II to the Act. The contention on behalf of the appellant is that a similar fee alone is payable on the memorandum of appeal and that Article 3 (iii) (A) (2) should yield to Section 52 which, as already stated, provides that the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject-matter of the appeal.

Two approaches, and two approaches alone, are possible one is the approach made in Ediga Muniyya v The State of Andhra Pradesh (1961) 11 An. W.R. 113; and Messrs. Chemicals Ltd., Nidadavole v Messrs. Raka Corporation. (Private) Ltd., (1963) II An. W.R. 124 which followed the earlier decision. According to those decisions the maxim generalia specialibus non derogant is attracted in cases like this and section 52, a general provision for all appeals, will not prevail as against Article 3 (iii) (A) (2), a special provision for a specified class of appeals, namely appeals u/s 5 of the Kerala High Court Act, 1958.

There can be no doubt that the maxim generalia specialibus non derogant embodies a healthy rule of construction. As pointed out by the Supreme Court in J.K. Cotton Spinning and Weaving Mills Co. Ltd. v State of Uttar Pradesh (A.I.R. 1961 S.C. 1170) the rule that general provisions should yield to special provisions is not an arbitrary rule made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions, one covering a large number of matters in general, and the other covering only some of them, his intention is that the latter should prevail as regards those matters, and that the general direction should have effect only as regards matters uncovered by the special direction.

The approach indicated above is based on the assumption that section 52 is a general provision applying to all appeals. This is controversial. In the context in which section 52 appears, it may be that it has application only to appeals from the suits specified in sections 22 to 50. If this view is correct, no question of applying the maxim generalia specialibus non derogant will arise and the only provision applicable will be Article 3 (iii) (A) (2) of Schedule II.

In either view the fee payable in this case will be Rs. 100/- and not Rs. 25/-It only remains to point out that there is no magic in a Schedule, that no paramountcy is conferred by the mere fact of a matter being incorporated in a Schedule, and that a combination of Act and Schedule does not attract anything other than the ordinary canons of statutory construction.

Schedules are commonly used in England, unlike in America, and their use in India stems from the English practice. In Attorney General v Lamplough (1878) L.R. 3 Ex. D. 214 (229) Brett L.J. said:

"A schedule in an Act of Parliament is a mere question of drafting-a mere question of words. The schedule is as much a part of the statute, and is as much an enactment as any other part.";

and as pointed out by Sutherland:

"Schedules differ from sections of an act only in the fact that they are appended at the end of the statute and usually, but not always, are identified by letters rather than by section numbers." (Statutory Construction, 3rd Edition, Volume II, page 380). All that Lord Sterndale decided in Inland Revenue Commissioners v Gittus (1920) 1 K.B. 563-as stated by Maxwell (Interpretation of Statutes, 11th Edition, Page 43)-is that "clear provisions in the Schedule to an Act cannot be limited either by the title to that Schedule, or by a section in the Act itself reciting the purposes for which the Schedule is enacted".

The "subject-matter" involved in a litigation, according to Ramanatha Aiyar''s Law Lexicon, "is the right which one party claims as against the other and demands the judgment of the Court upon if. In my view it is in this sense, and no other, that the expression is used in section 52 of the Kerala Court Fees and Suits Valuation Act, 1959. I record our thanks to Shri K.P. Ramunni Menon who appeared at our request and assisted us at the hearing.