Nishithendu Dhar vs State of Assam and Others

This judgment of ours will dispose of Civil Rule No. 2605/92, Civil Rule No. 3241/93 and Civil Rule No. 1039 of 1996, as common question is involved in all these cases.

The matters have been placed before us in pursuance of an order passed by Hon''ble Mr. Justice D.N. Baruah in Civil Rule No. 1039/96. The order reads as under:

Heard the learned Counsel for the Petitioners.

Let a notice of motion issue calling upon the Respondents to show cause as to why a rule should not be issued as prayed for or why such further or other orders should not be passed as to this Court may seem fit and proper.

The notice is made returnable within two weeks.

Mr. B. Choudhury, learned Addl. Sr. Govt. Advocate, Assam receives notice for all the Respondents. So no formal notice need be sent.

Regarding court fee there are 2 Division Bench judgments having two different opinion.

In view of the above it will be apposite to place the matter before the Hon''ble Chief Justice for his Lordship''s consideration as to whether the matter may be placed before the larger Bench.

The stay matter may come up before a Single Bench and thereafter the matter may be placed before then larger Bench.

The counsel for the parties during the course of arguments, have referred to the provisions of Chapter V-A, Rule 1 of the Gauhati High Court Rules, which reads as under:

An application for a direction or order or writ under Article 226 of the Constitution of India, other than writ of habeas corpus, shall be drawn up in the form contained in the schedule to this Chapter and shall be accompanied by an affidavit verifying the facts relied upon.

Separate application should be filled for each individual where interests are not identical even if there is one common order covering several cases and the facts of each case should be separately supported by affidavit.

Provided that more than one such individual can jointly file a single Writ Petition on each of them paying Court-fee payable on such application.

In all other respects the procedure relating to the revision application shall apply to such applications.

Counsel for the parties have also referred to two decisions of this Court in N. Dhar v. State of Assam and Anr. (Civil Rule No. 2605/92) and Achinta Mili and Ors. v. State of Assam and Ors. (Civil Rule No. 3241/93). It deserves to be noticed again that these very Civil Rules are listed before us today. It requires to be seen that the necessity for listing these two Civil Rules has arisen because a different view on the question of payment of Court fee has been taken by the Division Bench while deciding Civil Rule No. 3241/93 (Achinta Mili and Ors. v. State of Assam and Ors.). Since the Division Bench while deciding Civil Rule No. 2605 of 1992, has not noticed the judgment given in Civil Rule No. 3241 of 1993, all these matters have been placed before us.

We have gone through the relevant provisions of the High Court Rules and Orders, Order I Rule 1 of the CPC and the relevant provisions of the Court Fees (Assam Amendment) Act, 1972 and are of the considered view that the law laid down by the Division Bench in Civil Rule No. 2605/92 (N. Dhar v. State of Assam and Anr.), is good law. It deserves to be mentioned that the Division Bench in the aforementioned Civil Rule No. 2605/92, has not only interpreted all the relevant provisions, but has discussed the case law as well. Even the learned Counsel for the parties have submitted before us that the Registry needs to be follow the law as laid down by the Division Bench in Civil Rule No. 2605/92, but it is contended that the Registry while following the ratio of the law laid down in the aforementioned case, is unnecessarily asking for higher Court then in each case even where interests of more than one Petitioners are identical. Since there is hardly any disagreement between, the counsel for the parties, we would like to clarify that the law as laid down by the Division Bench in the case of N. Dhar v. State of Assam (supra), would strictly be followed by the Registry. However, where the interests of more than one Petitioners are not identical or where they have sought separate and distinct reliefs, they would be liable to pay Court fee as if they are filing separate petitions. No other observations are needed to be added to the observations made by the Division Bench in the case of N. Dhar (supra).

In view of the observations made above, as has been observed by the Division Bench in N. Dhar''s case (supra), Rule 1 and the proviso under Chapter VA in the Gauhati High Court Rules and Orders, would stand and the same is meant to be complied with.

All the Civil Rules accordingly stand disposed.