Report No. 189

Legislative powers of Parliament and State Legislatures as to the making of law on Court-fees

(a) Position after the Government of India Act, 1935 came into force At the time when the Government of India Act, 1935 came into force, the Court Fees Act, 1870 was applicable to the whole of British India, as amended by provincial legislatures. It continued to be in force even after the Government of India Act, 1935 came into force, in view of the provision contained in the section 292 of the Government of India Act, 1935, which read as follows:

"Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the laws in force in British India immediately before the commencement of Part III of this Act, shall continue in force in British India until altered or repealed or amended by a competent legislature or other competent authority."

Now we have to ascertain which was the competent legislature which was entitled to alter, repeal or amend the Court Fees Act, 1870. The relevant provision is contained in section 100 of the Government of India Act, 1935. As per sub-section (1) of section 100 of the said Act of 1935, the Federal Legislature had exclusive power to make laws with respect to any of the matters enumerated in List I of the Seventh Schedule to that Act and under sub-section (3) thereof a provincial legislature alone had power to make laws with respect to any of the matters enumerated in List II of the said Seventh Schedule to that Act. The relevant entry relating to court fees was Entry 1 of List II of the Seventh Schedule, which included: "fees taken in all courts except in Federal Court".

In view of the above provisions, the provincial legislature became the competent legislature in respect of matters relating to the court fees payable in all courts except the Federal Court. In this regard, the Bombay High Court in M/s Brindalal v. M/s Gokal and Haffman Ltd., AIR 1960 Bom 96, held (at para 5):

"Therefore, the Legislature competent to legislate in connection with court fees was a Provincial Legislature and not the Federal or Central Legislature because of the provisions of sub-section (3) of section 100, "Court fees" was very clearly with the exclusive legislative powers of a Provincial Legislature, after the coming into operation of the Government of India Act, 1935 and the Federal Legislature did not have any such power. It is quite clear that it was a Provincial Legislature alone which could alter, repeal or amend the Court Fees Act, after the coming into operation of the Government of India Act, 1935."

(b) Position after the Constitution of India came into force When the Constitution of India came into force on 26th January, 1950, the Court Fees Act, 1870 was already in force by virtue of section 292 of the Government of India Act, 1935, as mentioned above. It continued to be in force after the Constitution of India came into force by virtue of Article 372 of the Constitution of India.

Article 372 of the Constitution provides that pre-Constitutional laws shall continue to be in force, until altered or repealed or amended by a competent Legislature, however subject to the other provisions of the Constitution. Clause (1) of Art.372 reads as follows:

"372. Continuance in force of existing laws and their adaptation. - (1) Notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority."

Moreover, the object of the Art.372 of the Constitution is to maintain the continuity of the pre-existing laws after the Constitution came into force till they were repealed, altered or amended by a competent legislature or other competent authority. (South India Corporation (P) Ltd. v. Secy., Board of Revenue, AIR 1964 SC 207). The Court Fees Act, 1872 was an 'existing law' within the meaning of Art.366. By virtue of Art.372, it has been a continuing enactment even after the Constitution of India came into force. While interpreting Art.372, the Supreme Court in the above-noted case held as under:

"that a pre Constitutional law made by a competent authority, though it has lost its legislative competence under the Constitution, shall continue in force, provided the law does not contravene the other provisions of the Constitution".

(emphasis supplied)

Pre-Constitutional law can continue to be in force only in its original form, and can only be altered or repealed or amended by a competent legislature or other competent authority. The following words in Art.372(1) make it clear; "shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority".

The Bombay High Court in M/s Brindalal v. M/s Gokal and Haffman Ltd. (supra), has stated:

"The position, therefore, is the same as that under the Government of India Act, 1935 and it is the State Legislature alone which has the exclusive power to legislate in respect of court fees payable in that particular State."

It is necessary to ascertain which is the competent legislature, which is entitled to make laws relating to fees payable in various Courts. Similarly whether now Parliament can amend the Court Fees Act, 1870, which was originally enacted as a Central Act?