Kerala High Court
Jinan.K.R vs The Bar Council Of Kerala on 12 December, 1981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938
WP(C).No. 35411 of 2015 (B)
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PETITIONER :
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JINAN.K.R., S/O.K.RAMAN, AGED 60 YEARS,
KOCHERIL HOUSE, HOUSE NO.12/92,
OCHANTHURUTHU P.O., ERNAKULAM DIST - 682 508.
BY ADVS.SRI.M.M.MONAYE
SRI.M.PAUL VARGHESE
SRI.T.KOSHY
RESPONDENT :
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THE BAR COUNCIL OF KERALA,
HIGH COURT BUILDINGS, ERNAKULAM,
KOCHI - 682 031, REPRESENTED BY ITS SECRETARY.
BY SRI.GRASHIOUS KURIAKOSE,SENIOR ADVOCATE
SRI.P.RAVINDRAN, SC
ADV. SRI.T.T.RAKESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 24-11-2016, ALONG WITH WPC.NO.23718/2015 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
sts
WP(C).No. 35411 of 2015 (B)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF THE ENROLMENT CERTIFICATE DATED 12.12.1981 ISSUED BY
THE 1ST RESPONDENT
P2 TRUE COPY OF THE REGISTRATION CERTIFICATE NO.BCK/4/81/5223 ISSUED
BY THE WELFARE FUND TRUSTEE COMMITTEE
P3 TRUE COPY OF THE LETTER OF ACKNOWLEDGMENT NO.KBS/SPN/216/04
DATED 21.12.2004 THE SECRETARY, BAR COUNCIL OF KERALA
P4 TRUE COPY OF THE APPLICATION FOR RESUMPTION DATED 12.10.2015
P5 TRUE COPY OF THE AFFIDAVIT DATED 12.10.2015
P6 TRUE COPIES OF THE TWO CHALAN RECEIPTS DATED 12.10.2015 ISSUED BY
THE DHANALAXMI BANK,BAR COUNCIL OF KERALA BRANCH
P7 TRUE COPY OF THE REPRESENTATION DATED 12.10.2015 SUBMITTED FOR
EXEMPTION OF SPECIAL FEE
P8 TRUE COPY OF THE ORDER NO.KBC/SPN-R/1469/15 DATED 20.10.2015
P9 TRUE COPIES OF PAGES 94-96 OF THE "BAR COUNCIL OF INDIA RULES"AS
PUBLISHED ABOVE.
P10 TRUE COPY OF THE PAGES DOWNLOADED FROM THE WEBSITE OF BAR
COUNCIL OF KERALA.
RESPONDENT(S)' EXHIBITS: NIL
-----------------------------------------
/TRUE COPY/
P.S.TO JUDGE
sts
"C.R"
ALEXANDER THOMAS, J.
=======================
W.P.(C).Nos. 35411/2015, 27369/2014,
23718/2015, 24499/2015, 27484/2015,
35081/2015, 34028/2015, 1135/2016,
2863/2016, 7007/2016, 13312/2016 & 20662/2016
==================
Dated this the 24th day of November, 2016
J U D G M E N T
All these Writ Petitions (Civil) have been instituted by persons, who had initially secured enrolment with the respondent Bar Council of Kerala as per the provisions of the Advocates Act, 1961 and after obtaining employment, suspended their right to practice and after their superannuation from employment, had made applications for resumption of their legal practice, as per the provisions of the Bar Council of India (BCI) Rules. The grievance projected by these petitioners is that the power to levy fee in respect of any matter as per the provisions of the Advocates Act has been exclusively conferred on the BCI as per Sec.49(1)(h) and that as per the rules made in that regard under Sec.49(1)(h), the fee prescribed by the BCI for resumption is Rs.5,000/- which is payable by the applicant concerned to the State Bar Council and Rs.2,000/- to the BCI, thus totalling to Rs.7,000/- only and that, in spite of this statutory prescription, the respondent Bar Council ::2::
W.P.(C).No. 35411/2015, etc. of Kerala has demanded payment of amounts much higher than Rs.7,000/-, coming to Rs.35,000/- to Rs. 52,000/-, in these cases and that the said stipulation made by the respondent State Bar Council is ultra vires and beyond the competence of the said State Bar Council. Most of the petitioners have secured interim orders, whereby this Court had directed that their applications for resumption of practice should be allowed provisionally, on payment of the total amount of Rs.7,000/- as stipulated in the BCI Rules with the further rider that they will be liable to make the payment of the balance demanded by the respondent State Bar Council, in case these writ petitions are dismissed. Some of the other petitioners herein were constrained to make payments of the amounts so demanded by the respondent State Bar Council, which far exceeds the abovesaid amount of Rs.7,000/- fixed by the BCI and such payment has been made subject to the final result of these writ proceedings.
2. The main facts in most of these Writ Petitions are broadly similar, except that some of the petitioners happened to secure employment in the judicial service as Munsiff, District Judge, etc., whereas other petitioners had secured employment in non-judicial services/employment, after their initial enrolment. The facts in some of ::3::
W.P.(C).No. 35411/2015, etc. the Writ Petitions will be dealt with hereinafter for understanding the precise nature of the controversy. For the purpose of disposal, W.P.(C). No.35411/2015 is taken as the lead case.
3. The petitioner in W.P.(C).No.35411/2015 had initially secured enrolment on the rolls of the respondent Bar Council of Kerala as per the provisions of the Advocates Act, 1961 and the rules framed thereunder on 12.12.1981 and he had also joined the Kerala Advocates' Welfare Fund on 26.10.1986. Later, he was selected and appointed to the judicial service as Munsiff on 16.1.1989, pursuant to which, he had submitted letter seeking voluntary suspension of his legal practice as per the provisions contained in BCI Rules and the said request of the petitioner to suspend his practice was accepted by the respondent State Council, as is referred to in Ext.P-3. Later, the petitioner got promotion as Sub Judge and subsequently, as District & Sessions Judge and he had superannuated from judicial service on 31.8.2015. Thereupon he had submitted Ext.P-4 resumption application dated 12.10.2015 along with the requisite affidavit as per Ext.P-5 seeking resumption of his practice in terms of the provisions contained in the BCI Rules. It is the petitioner's case that at that point of time, the respondent State Bar Council had demanded, not only the above mentioned amount of ::4::
W.P.(C).No. 35411/2015, etc. Rs.7,000/- (Rs.5,000/- payable to the State Council + Rs. 2,000/- payable to the BCI) as resumption fee as prescribed in the amended provisions of BCI Rules, but had also demanded an additional amount of Rs. 35,000/-. The petitioner contended that the said demand of payment of fee over and above the said prescribed amount of Rs.7,000/- is ultra vires and illegal. This Court had passed interim order dated 24.11.2015 directing the respondent State Council to allow the petitioner to resume his legal practice on payment of the same amount of Rs.7,000/- with the further rider that in the event of the dismissal of the Writ Petition, the petitioner will have to pay the extra amount demanded over and above the said amount of Rs.7,000/-, etc. It is pointed out that the petitioner had thereafter resumed practice after paying the abovesaid amount of Rs.7,000/- as prescribed in the BCI Rules, etc.
4. The petitioner in W.P.(C).No. 27484/2015 had also initially secured enrolment in the State Council on 11.7.1977. Later he secured selection and appointment in the judicial service as Munsiff in the year 1988, consequent to which, his application to suspend the legal practice, was allowed by the respondent State Council immediately. The petitioner superannuated from judicial service as District Judge on ::5::
W.P.(C).No. 35411/2015, etc. 30.6.2013 and was later allowed to continue as Family Court Judge, in which post he had continued upto 30.7.2015. Thereafter, he has submitted Ext.P-1 resumption application dated 21.8.2015 and had also paid the abovesaid amount of Rs.7,000/- as prescribed in the BCI Rules.
However, the respondent State Council as per Ext.P-2 (one letter dated 20.8.2015) had demanded that he is liable to pay a special fee amount of Rs.40,000/- as envisaged in Clause 9 of Ext.P-2(2) series, revised fee structure notice (made effective from 3.8.2015) issued by the respondent State Council. It is relevant to note that what is referred to in Clause 9 of Ext.P-2(2) series notice is special fee from candidates seeking enrolment and a differential slab is stipulated therein, which is Rs.20,000/- for candidates seeking enrolment after 5 years from the passing of LLB Degree, Rs. 25,000/- for those who seek enrolment after 10 years from the date of passing the LLB degree or after voluntary retirement and Rs. 40,000/- from those candidates, who seek enrolment and who had retired from service after attaining superannuation age, etc. Even if it is assumed that the said demand in Ext.P-2 is otherwise justifiable, the same would apply only for a case of fresh enrolment and it will not apply in the case of application for resumption of practice submitted by a candidate, who had initially secured enrolment and ::6::
W.P.(C).No. 35411/2015, etc. thereafter suspended his legal practice, etc. In W.P.(C).No.27484/2015 also there was an interim order passed by this Court on 29.8.2015 directing the respondent State Bar Council to permit the petitioner to resume his practice on condition that he shall pay the abovesaid amount of Rs.7,000/- as prescribed in the statutory rules framed by the BCI, with the further rider that in case the Writ Petition is dismissed, the petitioner will have to remit the balance of the fees demanded by the respondent State Council over and above the said Rs 7,000/-.
5. The facts in most of the other petitions are broadly similar and in all these Writ Petitions, the petitioners had secured interim orders on the same lines and they had paid only amount of Rs.7,000/-
and interim orders as mentioned above have been passed in most of these cases. However, the petitioner in W.P.(C).No.13312/2016 has paid the entire demanded amount of Rs.42,000/- to the respondent Bar Council, which is inclusive of the abovesaid amount of Rs.7,000/- prescribed in the BCI Rules. The petitioner in W.P.(C).No.2863/2016 has also paid the entire demanded amount of Rs.37,000/-, which also appears to be inclusive of the abovesaid amount of Rs. 7,000/- as prescribed in the BCI Rules.
::7::
W.P.(C).No. 35411/2015, etc.
6. Various contentions have been urged by the petitioners. The main contention urged by the petitioners is that the Parliament, while framing the Advocates Act, 1961, has chosen to enunciate a specific legislative policy in its wisdom that fee, which may be levied in respect of any matter under the provisions of the Advocates Act, 1961, is to be exclusively prescribed by the BCI as mandated in Sec.49(1)(h) of the said Act and further that the State Bar Council is denuded of any authority to prescribe or stipulate fees, which are leviable in respect of any matter under the Act and that the BCI has framed statutory rules captioned as the "Bar Council of India Rules" in which, Part VIII thereof deals with "Fee leviable under the Act" as rules framed under Sec. 49(1)(h) of the Act and that, as per the revised fee structure notified with effect from 16.9.2006, it has been stipulated in item No.5 under Part VIII of the BCI Rules that, for resumption of practice as an Advocate, the applicant shall have to pay a sum of Rs.1,000/- in favour of the State Bar Council and Rs. 200/- in favour of BCI, etc., and further that the said fee structure in the BCI Rules was later amended as per BCI Notification dated 16.12.2012 published in the Gazette of India dated 28.3.2013, wherein after Entry 23 of the said fee structure, under Part VIII of the BCI Rules it has been provided that, for resumption of ::8::
W.P.(C).No. 35411/2015, etc. practice as an Advocate, the applicant shall have to pay an amount of Rs.5,000/- in favour of the State Bar Council and Rs.2,000/- in favour of the BCI, etc. That the State Bar Council is denuded of any authority to prescribe any fee for entertaining a resumption application over and above the said amount of Rs.7,000/- prescribed by the BCI with effect from the Gazette of India notification dated 28.3.2013 onwards and that the power in that regard is not in any manner available to the respondent State Bar Council by resort to the provisions as in Sec.24(1)
(e) read with Sec. 28(2)(d) of the Advocates Act, etc.
7. The respondent State Bar Council has filed a counter affidavit dated 27.1.2016 in W.P.(C).No.27369/2014, which has been adopted in all these cases. [Incidentally it is to be noted that W.P.(C).No. 27369/2014 is a matter in relation to similar issues relating to resumption of candidates]. The respondent State Council has chosen to adopt the counter affidavit in W.P.(C).No.27369/2014, as their pleadings by way of counter affidavits in all these matters relating to resumption of practice, by filing memos adopting those pleadings.
8. It is stated in the said counter affidavit that though the petitioner had filed application for resumption of practice, he had declined to make payment of the fees fixed by the respondent State ::9::
W.P.(C).No. 35411/2015, etc. Council for grant of permission for resumption of practice and consequently, permission for resumption has not been granted to him and that if the petitioner is willing to comply with the requirements of the rules of the respondent State Council and remit the fee fixed in accordance with the Kerala Bar Council Rules, they have no objection in his resumption of practice. Further that the respondent State Council had resolved to amend Rule 2(1) in Chapter V of Bar Council of Kerala Rules relating to collection of fee and that the amendment was by way of substituting Rule 2(a) and after passing the resolution for effecting the amendment, the respondent State Council had forwarded the same to the Bar Council of India (BCI) for their approval as per Anx.R-1(a) dated 27.8.2014 and that the said amendment was duly approved by the Bar Council of India as per Anx.R-1(b) proceedings dated 12.12.2014 of the BCI. It is stated that the amended provisions contained in Rule 2(a) of the BCK Rules, reads as follows:
"An application in Form No.2 hereto annexed together with the receipt for payment of the application fee and other fees which the Council may decide from time to time."
That the petitioner was informed of all the requirements to be complied with for resumption of practice, when he had approached the office of the State Bar Council and that he decided not to pay the resumption fee ::10::
W.P.(C).No. 35411/2015, etc. and had chosen to institute the Writ Petition, etc. It is also contended therein that the right to practise as an Advocate is a statutory right and only a person who has been enrolled as an Advocate under the State Bar Council in accordance with the provisions of the Advocates Act and the Rules framed thereunder, is entitled to practise as an Advocate and that the petitioner cannot insist that he should be permitted to resume his legal practice without satisfying the requirements of law laid down in this regard, etc. Further that Sec.24 of the Advocates Act lays down conditions, subject to which a person can be admitted as an Advocate on the State roll and Sec. 24(1)(e) mandates that a person who fulfills "such other conditions as may be specified in the Rules made by the State Bar Council alone is entitled to be admitted to the State roll" and that this provision makes it amply clear that the right to admission on the State roll is subject to fulfillment of such conditions as may be specified in the rules made by the State Bar Council. Further that Sec.28(2)(d) enables the State Bar Council to prescribe conditions, subject to which a person may be admitted as an Advocate on the State roll. That a combined reading of Sec.24(1)(e) and Sec.28(2)(d) would make it clear that the State Bar Council is bestowed with the power to frame statutory rules imposing conditions on the right to get enrolled as an advocate on the State roll.
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W.P.(C).No. 35411/2015, etc. It is further pointed out that Sec.24(1)(f), which deals with the collection of enrolment fee, is only with regard to enrolment fee, and this provision or any other provisions of the Act do not interdict the State Bar Council to bring in any rule providing for payment of fee to the State Bar Council other than enrolment fee. Sec.28(3) requires the approval of the BCI for the rules framed by the State Bar Council and that the amendment introduced by the State Bar Council has obtained the approval of the Bar Council of India and the rule is therefore valid, etc.
9. It is further averred that the State Bar Council has no scheme to generate funds for its sustenance and there are no grants or other assistance from the Government or other agency and that the said State Bar Council has staff strength of 18, who should be paid the same pay scale as applicable to the Government employees in the corresponding periods and whenever a pay revision is effected for the State Government employees, the consequential pay revision is carried out in the State Bar Council Staff Rules. That the State Council has a regulatory body, who has to carry out various activities such as overall improvements in the legal education as well as quality improvement of the legal profession and it has to conduct seminars and other activities ::12::
W.P.(C).No. 35411/2015, etc. for the uplift of the quality of the legal profession and all these activities involve huge financial liability and funds have to be generated by the State Council for this purpose and that the main source of income of the State Bar Council is the amount received from the candidates seeking to enrol as an Advocate in the State roll and that the State Bar Council has no intention to make profits and that the allegations on the contrary are false, etc. That the State Council has fixed different rates of fee for the different classes of Advocates and the young persons seeking enrolment after stepping out from the law colleges cannot be mulcted with huge fee for enrolment as an Advocate and therefore they have been required to pay only a nominal fee, whereas the persons who after getting a law degree and choosing to accept other job and then, after a long period think of joining profession, are treated differentially. Likewise, persons after superannuation from service, who seek to join the legal profession after getting the benefits of permanent employment like pension, provident fund, gratuity, etc., constitute a separate class in themselves and that being financially in a much better position would not feel the burden when they are required to pay a slightly higher amount for getting enrolled on the State roll. That since these categories of candidates form a different class, there is no legal bar in treating them ::13::
W.P.(C).No. 35411/2015, etc. differently and that there is no violation of principles of equality in treating dissimilarly situated persons. That the differentiation is not made on the basis of the age and differentiation is made on the basis of other considerations as stated above including the pecuniary burden that they may suffer and that is the reason for fixing different slabs of fee as stated above and that it does not amount to hostile discrimination. Along with the said counter affidavit Ext.R-1(c), (d), (e) & (f), have been produced, which are stated to be the fee structures now prevalent in the other State Bar Councils in other States like Punjab & Haryana, Madhya Pradesh, Jharkhand, Delhi, Odisha, etc.
10. Sri.P.Ravindran, learned Senior Counsel instructed by Sri.Sreedhar Ravindran, learned counsel appearing for the respondent Bar Council of Kerala had raised contentions so as to justify the power of the State Council to make rules to bring in a provision as in the amended Rule 2(a) and for this, he had primarily contended that such conditions for paying additional fees other than the one fixed by the Bar Council of India, be it for resumption or enrolment, is traceable in Sec.24(1)(e), insofar as the said provision clearly mandates that the candidate, who seeks enrolment on the roll of a State Bar Council, should necessarily fulfill "such other conditions as may be specified in the rules ::14::
W.P.(C).No. 35411/2015, etc. made by the State Bar Council under this chapter", Chapter 3 of the Act which deals with "Admission and Enrolment of Advocates" and that the said power conferred by the Parliament on the State Bar Council as traceable in Sec.24(1)(e) can be duly exercised by framing rules as empowered under Sec.28 as Sec.28(2)(d) specifically and explicitly confers powers on the State Bar Council to frame rules regarding "conditions subject to which a person may be admitted as an Advocate on any such roll" and that the only restriction in that regard placed by the Parliament is in Sec.28(3) thereof, which insists that such rules framed by the State Bar Council under Chapter III of the Act can have effect only if they are approved by the Bar Council of India and that such approval has already been obtained from the BCI for the amendment of Rule 2(a) as per Ext.R-1(a), as can be seen from Ext.R-1(b) proceedings issued by the BCI, etc. Incidental to this contention, Sri.P.Ravindran, learned Senior Counsel has also submitted that the concept of "fee" has undergone a sea-change and that a licence fee imposed for regulated purposes is not conditioned by the limitation that there must be quid pro quo of the services rendered, but that such licence fee must be reasonable and not excessive and that the co-relation between the levy and the services rendered is one of general character and need not be of mathematical exactitude ::15::
W.P.(C).No. 35411/2015, etc. and all that is necessary is that there should be "a reasonable relationship" between the levy of the fee and the services rendered, etc. and that going by the said test laid down by the Apex Court in a series of rulings, the impugned fee structure imposed by the respondent State Bar Council from time to time on the basis of amended Rule 2(a) of the State Bar Council Rules, be it for resumption or any other purposes including fresh enrolment, would certainly satisfy the broad and liberal test laid down by the said Apex Court rulings and that the said fee imposed by the State Bar Council is, not only intra vires the provisions of the Act and the Rules, but is also reasonable and not excessive, etc. Further, Sri.P.Ravindran, the learned Senior Counsel appearing for the respondent State Bar Council would also contend that it is true that the respondent State Council, by virtue of the amended Rule 2(a), has notified fee structure from time to time, wherein fresh candidates who seek fresh enrolment immediately after they secure LLB degree are made to pay only a very low and normal fee, whereas the fee imposed for candidates, especially those who have taken up employment and have retired, is on the higher side and that this differentiation has been followed even in the case of fee structure imposed for resumption of practice and further that the said differentiation made between such ::16::
W.P.(C).No. 35411/2015, etc. candidates would certainly fulfill the test of reasonable classification as envisaged in Art.14 of the Constitution. In this regard the learned Senior Counsel had placed reliance on a few rulings of the Apex Court for justifying the differentiation.
11. Heard Sri.M.M.Monaye, Sri.R.Anilkumar, Sri.V.S.Babu Gireesan, Sri.T.Madhu, Sri.V.Devananda Narasimham, Sri.R.K.Muraleedharan, Sri.Sherry.J.Thomas, learned appearing counsel for the petitioners, Sri.P.Ravindran, learned Senior Counsel instructed by Sri.Sreedhar Ravindran, learned counsel appearing for the State Bar Council, Sri.Rajit, learned counsel appearing for the respondent Bar Council of India, Sri.N.Nagaresh, learned Assistant Solicitor General appearing for the Central Government, and Sri.Saigy Jacob Palatty, learned Senior Govt. Pleader appearing for the respondent State Government.
12. It would be pertinent to make a brief overview about some of the leading judgments of the Apex Court in matters relating to imposition of fee. It has been held by the Apex Court in paras 31 and 32 of the judgment in Sreenivasa General Traders & ors. v. State of Andhra Pradesh & ors. reported in (1983) 4 SCC 353 that the distinction between a tax and a fee lies primarily in the fact that a tax is levied as ::17::
W.P.(C).No. 35411/2015, etc. part of the common burden, while a fee is for payment of a specified benefit or privilege, although the special advantage is secondary to the primary motive of regulation in public interest and in determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class and it may be of no consequence that the State may ultimately and directly be benefited by it. It was also held therein that however there is no generic difference between a tax and a fee and both are compulsory exactions of money by public authorities and compulsion lies in the fact that payment is enforceable by law against a person in spite of his willingness or want of consent. A levy in the nature of fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of fee that it must have a direct relation with the actual fee to the actual service rendered by the authority to each individual, who obtains the benefit of the service. That merely because the collection/services rendered or grant of a privilege or licence are taken to the consolidated fund of the State and not separately appropriated towards the expenditure for rendering the service is not by itself decisive and so the element of quid pro quo in the strict sense is not always a sine quo non for a fee. However, ::18::
W.P.(C).No. 35411/2015, etc. a co-relationship between the levy and the services rendered or expected is one of general character and not of mathematical exactitude and all that is necessary is that there should be a 'reasonable relationship' between the levy of the fee and the services rendered. In one of the earlier decisions of the Apex Court in the mid-60s in the celebrated case in The Corporation of Calcutta and another v. Liberty Cinema, reported in AIR 1965 SC 1107, the Apex Court had identified the existence of 2 distinct kinds of fee and traced its presence to the Constitution itself and it was observed therein that in our Constitution "fee for licence" and "fee for services" rendered are contemplated as different kinds of levy and the former is not intended to be a fee for services rendered, which is apparent from a consideration of Art.110(2) and Art.199(2) of the Constitution of India, where both the expressions are used indicating thereby that they are not the same. After placing reliance on the decision in Shannon v. Lower Mainland Dairy Products Board, reported in AIR 1939 PC 36 =1938 AC 708, with approval, it was held in Liberty Cinema's case supra reported in AIR 1965 SC 1107, p.1113 para 8, as follows:
"8......if licences are granted, it appears to be no objection that fees should be charged in order either to defray the costs of administering the local regulation or to increase the general funds of the Province or for both purposes. . . . . . . . . . It cannot as their Lordships think, be an objection to a ::19::
W.P.(C).No. 35411/2015, etc. licence plus a fee that it is directed both to the regulation of trade and to the provision of revenue."
[See Shannon's case reported in 1938 AC 708, pp. 721-722]. This principle was reaffirmed in the case Secunderabad Hyderabad Hotel Owners' Assn. v. Hyderabad Municipal Corpn., reported in (1999) 2 SCC 274, wherein it was held that a licence fee may be either regulatory or compensatory and when a fee is charged for rendering specific services, a certain amount of quid pro quo must be there between the service rendered and the fee charged so that the licence fee is commensurate with the cost of rendering the service, although exact arithmetical equivalence is not expected, and however this is not the only kind of fee which can be charged and licence fees can also be regulatory when the activities for which a licence is given require to be regulated or controlled and that the fee which is charged for regulation of such activity would be validly classifiable as a fee and not a tax although no service is rendered and an element of quid pro quo for the levy of such fee is not required although such fees cannot be excessive. In Vam Organic Chemicals Ltd. v. State of U.P., reported in (1997) 2 SCC 715, the Apex Court while dealing with regulatory fees held that like licence fee, no quid pro quo is necessary, but such fee should not be excessive. The same distinction between "regulatory" and "compensatory"
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W.P.(C).No. 35411/2015, etc. fees has been highlighted in various subsequent other rulings as in P.Kannadasan v. State of T.N., reported in (1996) 5 SCC 670, p.698, para 36; State of Tripura v. Sudhir Ranjan Nath, reported in (1997) 3 SCC 665, p.673, para 14 and B.S.E. Brokers' Forum v. Securities & Exchange Board of India, reported in (2001) 3 SCC 482, etc. In A.P. Paper Mills Ltd. v. Govt. of A.P., reported in (2000) 8 SCC 167, pp.179-180, para 32, the Apex Court, while dealing with the question whether the element of quid pro quo as it is understood in common legal parlance was applicable to a regulatory fee, held that the impugned licence fee therein was construed to be regulatory in nature and that therefore stricto sensu the element of quid pro quo does not apply in the case, but the question to be considered is whether there is a reasonable correlationship between the levy of the licence fee and the purpose for which the provisions of the Act and the Rules have been enacted/framed and that the impugned licence fee therein was found to have correlation with the purpose for which the statute and the rules have been enacted. Dealing with the same issue, the Apex Court in the celebrated case Delhi Race Club Ltd. v. Union of India, reported in (2012) 8 SCC 680, held in para 42 thereof that a licence fee imposed for regulatory purposes is not conditioned by the fact that there must be a ::21::
W.P.(C).No. 35411/2015, etc. quid pro quo for the services rendered, but that, such licence fee must certainly be reasonable and not excessive. That though it may not be possible to work out with arithmetical equivalence the amount of fee which could be said to be reasonable or otherwise, if there is a broad correlation between the expenditure which the State incurs and the fees charged, the fees could be sustained as reasonable, etc.
13. A 3-Judge Bench of the Apex Court in the case Bar Council of U.P. v. State of U.P., reported in (1973) 1 SCC 261 = AIR 1973 SC 231 = 1973 KHC 442, after placing reliance on the dictum earlier laid down by the Apex Court in O.N.Mohindroo v. The Bar Council of Delhi, reported in AIR 1968 SC 888, held that the Advocates Act, 1961 to the extent it deals with the entitlement of persons to practise before the Supreme Court and the High Courts in the country would derive its legislative competence in respect of the matters covered by Entry 77 and Entry 78 of the Union List (List I of the 7th Schedule of the Constitution of India), which read as follows;
"Entry 77. Constitution, Organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court) ... persons entitled to practise before the Supreme Court."
"Entry 78. Constitution and Organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Court."
::22::
W.P.(C).No. 35411/2015, etc. It was held therein that indisputably the Advocates Act, 1961 was enacted under Entries 77 and 78 and that the words, "persons entitled to practise" occurring in those Entries would include determining or prescribing qualifications and conditions that the person should possess and satisfy before becoming entitled to practise as an Advocate before the Supreme Court or the High Courts and so far as persons entitled to practise before those courts are concerned, the power to legislate in regard to them is carved out from the general power relating to the provision in Entry 26 (legal, medical and other profession) in List III (Concurrent List) and from those entries, the following scheme with regard to persons entitled to practise will appear to emerge and the Parliament has the exclusive power under Entry 77 and Entry 78 in List I, to prescribe, inter alia, the qualifications and conditions on the fulfilment of which, persons would be entitled to practise before the Supreme Court or the High Courts and that any fee which may be payable by such persons before they can claim to be entitled to practise, would fall under Entry 96 of List I (Union List) [see para 11 of 1973 (1) SCC 261, p.269]. The said view was arrived at by the 3-Judge Bench of the Apex Court in Bar Council of U.P. v. State of U.P., reported in (1973) 1 SCC 261, on the basis of the legal principles earlier laid down by the ::23::
W.P.(C).No. 35411/2015, etc. Apex Court in O.N.Mohindroo v. Bar Council of Delhi, reported in AIR 1968 SC 888, wherein it was held that the Advocates Act, 1961, must heed to fall within Entries 77 and 78 of List I and as power of legislation relating to those entitled to practise in the Supreme Court and High Courts is carved out from the general power to legislate in relation to legal and other professions in Entry 26 of List III (Concurrent List), it was an error on the part of the High Court in that case to hold that the Act is a composite legislation partly falling under Entries 77 and 78 of List I, etc. It is relevant to note that the Constitution Bench of the Apex Court in the aforecited ruling in O.N.Mohindroo v. Bar Council of Delhi, reported in AIR 1968 SC 888, para 10 thereof, has held that the object of the Advocates Act, 1961 is to constitute one common Bar for the whole country and to provide machinery for its regulated functioning and since the Act sets up one Bar, autonomous in its character, the Bar Councils set up thereunder have been entrusted with the power to regulate the working of the profession and to prescribe rules of professional conduct and etiquette, and the power to punish those who commit breach of such rules. That the power of punishment is entrusted to the disciplinary committees ensuring a trial of an advocate by his peers. Sections 35, 36 and 37 lay down the procedure for trying ::24::
W.P.(C).No. 35411/2015, etc. complaints, punishment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils and as an additional remedy, Sec.38 provides a further appeal to the Supreme Court. Though the Act relates to the legal practitioners, in its pith and substance, it is an enactment which concerns itself with the qualifications, enrolment, right to practice and discipline of the Advocates and as provided by the Act, once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practise in all courts including the Supreme Court and the High Courts and the Act creates one common Bar, all its members being of one class, namely, Advocates, etc. The said view enunciated by the Constitution Bench in para 10 of AIR 1968 SC 888 was followed by the aforecited 3-Judge Bench ruling of the Apex Court in Bar Council of U.P. v. State of U.P., reported in (1973) 1 SCC 261, in para 7, which reads as follows:
"7. It is quite apparent that the main objective of the integration of the Bar into a single class of legal practitioners known as advocates and the prescription of uniform qualifications for the admission of such persons to the profession was sought to be achieved by the provisions of the Act. It was essential for an advocate if he wanted to practise to have his name on the common roll of advocates which was to be prepared and maintained by the Bar Council of India. The common roll, however, was to comprise entries made in all State rolls and was to include the names of advocates entitled as of right to practise in the Supreme Court immediately before the appointed day whose names were not entered in any State roll. If a person did not fall within the latter class his name had to be borne on the roll of advocates of the State Bar Council. Apart from fulfilling the qualifications laid down by the Act and the ::25::
W.P.(C).No. 35411/2015, etc. other conditions specified therein or by any rules framed under its provisions the advocate had to pay an enrolment fee of Rs 250 to the State Bar Council. Section 24(1) as already stated, contained the conditions for the admission of an advocate on the State roll and sub-clause (f) of sub-section (1) constituted one of those conditions without the fulfilment of which a person could not be said to satisfy the requirements of Section 24. Under the Act only that sum or amount was payable and even when an advocate desired to have his name transferred from one State roll to another he could get the same done without payment of any additional fee (vide Section 18)."
The Apex Court in the said ruling has also taken due note of the provisions contained in Sec.24(1)(f), which then prescribed that the enrolment fee of Rs. 250/- is to be paid to the Bar Council and the provisions in Sec.24(1)(e) prescribe that such persons should fulfill other conditions, which might be specified in the rules made by the State Bar Council, etc. Further, that under the Advocates Act, 1961, only that sum or amount was payable and even when an Advocate desired to have his name transferred from one State roll to another, he could get the same done without payment of any additional fee as per Sec.18, etc.
14. As indicated in the abovestated Apex Court judgments, the main features of the Advocates Act, 1961 as disclosed in the Statements of objects and reasons, which was introduced in the Parliament, are as follows:
"10. The object of the Act is thus to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. Since the Act sets up one Bar, autonomous in its character, the Bar Councils set up thereunder have been entrusted with the power to regulate the ::26::
W.P.(C).No. 35411/2015, etc. working of the profession and to prescribe rules of professional conduct and etiquette, and the power to punish those who commit breach of such rules. The power of punishment is entrusted to the disciplinary committees ensuring a trial of an advocate by his peers. S.35, 36 and 37 lay down the procedure for trying complaints, punishment and an appeal to the Bar Council of India from the orders passed by the State Bar Councils. As an additional remedy S.38 provides a further appeal to the Supreme Court. Though the Act relates to the legal practitioners, in its pith and substance it is an enactment which concerns itself with the qualifications, enrolment, right to practice and discipline of the advocates. As provided by the Act once a person is enrolled by any one of the State Bar Councils, he becomes entitled to practice in all courts including the Supreme Court. As aforesaid, the Act creates one common Bar, all its members being of one class, namely, advocates. Since all those who have been enrolled have a right to practice in the Supreme Court and the High Courts, the Act is a piece of legislation which deals with persons entitled to practice before the Supreme Court and the High Courts. Therefore the Act must be heed to fall within entries 77 and 78 of List I. As the power of legislation relating to those entitled to practise in the Supreme Court and the High Courts is carved out from the general power to legislate in relation to legal and other professions in entry 26 of List III, it is an error to say, as the High Court did, that the Act is a composite legislation partly falling under entries 77 and 78 of List I and partly under entry 26 of List III."
15. Sec.2(1)(a) of the Advocates Act defines an "Advocate" to mean an Advocate entered in any roll under the provisions of the said Act. Sec.2(1)(d) defines "Bar Council" to mean a Bar Council constituted under the Act and Sec.2(1)(e) thereof, defines "Bar Council of India" to mean the Bar Council constituted under Sec.4 for the territories to which this Act applies. As per Sec.2(1)(k) "roll" to mean a roll of Advocates prepared and maintained under this Act. Sec.2(1)(m) defines "State Bar Council" to mean a Bar Council constituted under Sec.3 and ::27::
W.P.(C).No. 35411/2015, etc. Sec.2(1)(n) thereof defines "State roll" to mean a roll of advocates prepared and maintained by a State Bar Council under Sec.17. Sec.2(1)(j) defines "prescribed" to mean prescribed by rules made under the Act, etc. Sec.3 deals with constitution of State Bar Council for various States mentioned therein and Sec.4 deals with constitution of the Bar Council of India. Sec.6 deals with functions of the State Bar Council and Sec.7 envisages the functions of the Bar Council of India. Sec.15 under Chapter II of the Act confers powers on a Bar Council to make rules to carryout the purposes of that chapter and sub section 3 thereof further provides that no rules made under that Section by a State Bar Council shall have effect unless they have been approved by the BCI. Chapter III deals with Admission and Enrolment of Advocates and it contains Sec.16 to Sec.28 therein. Sec.17 casts a duty on the State Bar Council to maintain the roll of advocates. Sec.22 makes a provision for certificate for enrolment to be issued by the State Bar Council concerned to every person whose name is entered in the roll of the advocates maintained by it under the Act. Sec. 24 deals with persons who may be admitted as advocates on a State roll. Clauses (e) and (f) of Sec.24(1) read as follows:
::28::
W.P.(C).No. 35411/2015, etc. "Sec.24: Persons who may be admitted as advocates on a State roll. (1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfils the following conditions, namely:--
(a) .....
xxx xxx xxx
(e) he fulfils such other conditions as may be specified in the rules made by the
State Bar Council under this Chapter;
(f) he has paid, in respect of the enrolment, stamp duty, if any, chargeable
under the Indian Stamp Act, 1899 (2 of 1899), and an enrolment fee payable to the State Bar Council of six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council.
xxx xxx xxx"
16. It is to be noted that earlier Sec. 24(1)(f) provided that the enrolment fee was only Rs. 250/- payable to the BCI and Rs.125/-
payable to the State Bar Council and these provisions are amended as per Act 70 of 1993, whereby enrolment fee payable was Rs.150/- to the BCI and Rs.600/- to the State Bar Council. Sec.28 deals with the power to make rules under Chapter III reads as follows:
"Sec.28: Power to make rules (1) A State Bar Council may make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for--
(a) the time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State Bar Council under Section 20;
(b) ::29::
W.P.(C).No. 35411/2015, etc.
(c) the form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council;
(d) the conditions subject to which a person may be admitted as an advocate on any such roll;
(e) the instalments in which the enrolment fee may be paid. (3) No rules made under this Chapter shall have effect unless they have been approved by the Bar Council of India."
Sec. 29 provides as follows:
"Sec.29: Advocates to be the only recognised class of persons entitled to practise law .
Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates."
Sec. 30 provides as follows:
"Sec.30: Right of advocates to practise.
Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,--
(i) in all Courts including the Supreme Court;
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or
under any law for the time being in force entitled to practise."
Sec. 33 reads as follows:
"Sec.33: Advocates alone entitled to practise.- Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any Court or before any authority or person unless he is enrolled as an advocate under this Act."
Chapter VI of the Act deals with Miscellaneous provisions containing ::30::
W.P.(C).No. 35411/2015, etc. Secs.45 to 52 therein. Sec.49 of Chapter VI confers general power on the Bar Council to make rules. The said provision reads as follows:
"Sec.49: General power of the Bar Council of India to make rules-(1) The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe-
(a) the conditions subject to which an advocate may be entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council;
(ab) qualifications for membership of a Bar Council and the disqualifications for such membership;
(ac) the time within which and the manner in which effect may be given to the proviso to sub-section (2) of Section 3; (ad) the manner in which the name of any advocate may be prevented from being entered in more than one State roll; (ae) the manner in which the seniority among advocates may be determined;
(af) the minimum qualifications required for admission to a course of degree in law in any recognised University;
(ag) the class or category of persons entitled to be enrolled as advocates;
(ah) the conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a Court;
(b) the form in which an application shall be made for the transfer of the name of an advocate from one State roll to another;
(c) the standards of professional conduct and etiquette to be observed by advocates;
(d) the standards of legal education to be observed by Universities in India and the inspection of Universities for that purpose;
(e) the foreign qualifications in law obtained by persons other than citizens of India which shall be recognised for the purpose of admission as an advocate under this Act;
(f) the procedure to be followed by the disciplinary committee of a State Bar Council and by its own disciplinary committee;
::31::
W.P.(C).No. 35411/2015, etc.
(g) the restrictions in the matter of practice to which senior advocates shall be subject;
(gg) the form of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before any Court or tribunal;
(h) the fees which may be levied in respect of any matter under this Act;
(i) general principles for guidance of State Bar Councils and the manner in which directions issued or orders made by the Bar Council of India may be enforced;
(j) any other matter which may be prescribed:
Provided that no rules made with reference to clause (c) or clause (gg) shall have effect unless they have been approved by the Chief Justice of India:
Provided further that] no rules made with reference to clause (e) shall have effect unless they have been approved by the Central Government. (2) Notwithstanding anything contained in the first proviso to sub-section (1), any rules made with reference to clause (c) or clause (gg) of the said sub-section and in force immediately before the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), shall continue in force until altered or repealed or amended in accordance with the provisions of this Act."
A reading of the abovesaid provisions would make it clear that the Parliament has enunciated a legislative policy carrying out the aforementioned purposes for the Act and has consciously mandated in Sec.24(1)(f) of the unamended Act, wherein it has been mandated that subject to the provisions of the Act and the Rules framed thereunder, a person shall be qualified to be admitted as an Advocate on a State roll, he has paid the enrolment fee of Rs.150/- to the BCI and Rs.600/- to the State Bar Council and the stamp duty, if any, chargeable under the ::32::
W.P.(C).No. 35411/2015, etc. Indian Stamp Act, 1899, subject to the reduction in the enrolment fee, as Rs.100/- payable to the State Bar Council and Rs. 25/- to BCI in the case of SC/ST candidates as envisaged in the proviso to Sec.24(1)(f). A reading of Sec.28(2)(e) of the Act, which confers power to the State Bar Council to frame rules to effectuate the provisions contained in Chapter III dealing with Admission and Enrolment of Advocates, would make it clear that the power conferred to the State Bar Council in respect of enrolment fee is only in regard to the installments in which the enrolment fee may be paid. Whereas the Parliament has consciously given a overarching power to the Bar Council of India under Sec. 49(1)(h) to prescribe by way of rules, "the fees which may be levied in respect of any matter under the Act". Further, under Sec.49(1)(ah) of the Act the Bar Council of India is given general power to frame rules regarding conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a Court, etc.
17. Though the exact details regarding the amounts and the rates fixed by the fee structure have not been given in the counter affidavit filed by the State Bar Council, Sri.P.Ravindran, learned Senior Counsel appearing for the respondent State Council, has made available ::33::
W.P.(C).No. 35411/2015, etc. a chart on the basis of the instructions of the Secretary of the Bar Council of Kerala for the perusal of this Court and the said chart reads as follows:
RESUMPTION FEES yearwise
2013 - 2014 (April to March) Rs
SPECIAL FEES FOR RESUMPTION
7 Resumption application & Regn.fee 10000
7 Resumption fee 5000
2014 - 2015 (April to March)
SPECIAL FEES FOR RESUMPTION
7 Resumption application & Regn.fee
7 Resumption within 5 years 10000
7 Resumption within 10 years 15000
7 Resumption more than 10 years 30000
7 Resumption fee 5000
2015 - 2016 (April to March)
SPECIAL FEES FOR RESUMPTION
7 Resumption application & Regn.fee
7 Resumption within 5 years 15000
7 Resumption within 10 years 20000
7 Resumption after 10 years 45000
7 Resumption fee 5000
::34::
W.P.(C).No. 35411/2015, etc.
2016 - 2017 (April to March)
SPECIAL FEES FOR RESUMPTION
7 Resumption application & Regn.fee
7 Resumption within 5 years 5000
7 Resumption within 10 years 10000
7 Resumption after 10 years 20000
7 Judicial officers (Presiding officers/Prosecutors of 5000
Various courts)
7 Resumption fee 5000
SPECIAL FEE YEARWISE
2011 - 2012 (April to March)
7 Special fee for Enrolment
7 Candidates seeking Enrolment after five years from the date of 10000
passing the LLB Degree
7 Candidates seeking Enrolment after 10 years from the date of
passing the LLB Degree or after retirement from voluntary 15000
Service/employment in India or abroad
7 Candidates those who had retired from service seeking Enrolment 25000
after attaining the age of superannuation
2012- 2013 (April to March)
7 Special fee for Enrolment
7 Candidates seeking Enrolment after five years from the date of 10000
passing the LLB Degree
7 Candidates seeking Enrolment after 10 years from the date of
passing the LLB Degree or after retirement from voluntary 15000
Service/employment in India or abroad
7 Candidates those who had retired from service seeking Enrolment
after attaining the age of superannuation
25000
::35::
W.P.(C).No. 35411/2015, etc.
2013- 2014 (April to March)
7 Special fee for Enrolment
7 Candidates seeking Enrolment after five years from the date of 12000
passing the LLB Degree
7 Candidates seeking Enrolment after 10 years from the date of
passing the LLB Degree or after retirement from voluntary 18000
Service/employment in India or abroad
7 Candidates those who had retired from service seeking Enrolment 30000
after attaining the age of superannuation
2014- 2015 (April to March)
7 Special fee for Enrolment
7 Candidates seeking Enrolment after five years from the date of 15000
passing the LLB Degree
7 Candidates seeking Enrolment after 10 years from the date of
passing the LLB Degree or after retirement from voluntary 20000
Service/employment in India or abroad
7 Candidates those who had retired from service seeking Enrolment 35000
after attaining the age of superannuation
2015- 2016 (April to March)
7 Special fee for Enrolment
7 Candidates seeking Enrolment after five years from the date of 20000
passing the LLB Degree
7 Candidates seeking Enrolment after 10 years from the date of
passing the LLB Degree or after retirement from voluntary 25000
Service/employment in India or abroad
7 Candidates those who had retired from service seeking Enrolment 50000
after attaining the age of superannuation
::36::
W.P.(C).No. 35411/2015, etc.
2016 - 2017 (April to March) Rs
SPECIAL FEE FOR ENROLMENT
(a) Candidates seeking Enrolment after five years from the date of 10,000
passing the LLB Degree.
(b) Candidates seeking Enrolment after 10 years from the date of 20,000 passing the LLB Degree
(c) Candidates those who had retired from judicial service seeking Nil.
enrolment after attaining the age of supernnuation.
(d) Candidate retired from government service attaining age of supernnuation (1) Last drawn salary Rs.60,000/- or more 40,000 (2) Last drawn salary less than Rs.60,000/- 15000
(e) Those who had retired from service from banking sector, 40000 insurance, tax and other similar financial institutions.
(f) Those who had joined & completed law course after 15000 retirement from service.
(g) Those who had retired voluntarily from service in India or 15000 abroad including private sector.
18. The petitioner in W.P.(C).No.27369/2014 has produced Ext.P-3 in that case, which is stated to be a fee structure notice downloaded from the website of the respondent State Council, wherein the resumption fee stipulated therein is shown as Rs.10,000/-, whereas in Ext.P-4 produced therein, which is stated to be downloaded from the State Bar Council's website on 15.9.2014, the resumption fee is shown as Rs.5,000/-.
::37::
W.P.(C).No. 35411/2015, etc.
19. In W.P.(C).No.34028/2015, the petitioner therein has produced as Ext.P-6 fee structure notified in the website of the respondent State Bar Council with effect from 26.5.2015, wherein the resumption fee is shown in 3 different slabs and at Rs.20,000/-, if the resumption is sought within five years (presumably from the date of voluntary suspension of the practice), Rs.25,000/-, if it is within 10 years and Rs.50,000/- if it is more than 10 years.
20. In W.P.(C).Nos.23718/2015, 24499/2015 and 7007/ 2016, the petitioners therein have produced the fee structure as notified in the respondent's website with effect from 26.5.2015, wherein the resumption fee notified is Rs.20,000/- if it is within 3 years, Rs. 25,000/- if it is within 10 years and Rs.50,000/- if it is more than 10 years.
21. In W.P.(C).No.27484/2015 the petitioner therein has produced as Ext.P-2, the revised fee structure said to have been notified in the website with effect from 3.8.2015, wherein the resumption fee has been notified therein as Rs.20,000/- if the resumption application is within 5 years, Rs.25,000/- if it is within 10 years and Rs.40,000/- if it is more than 10 years, etc.
22. In W.P.(C).No.2863/2016 the petitioner has produced as Ext.P-1 therein the revised fee structure said to have been notified in the ::38::
W.P.(C).No. 35411/2015, etc. website, with effect from 9.6.2014, wherein the resumption fee demanded therein is Rs.15,000/- if it is within 5 years, Rs.20,000/- within ten years and Rs.35,000/- within more than 10 years, etc.
23. The petitioners have contended that the figures as shown in the chart now made available to the Court for the perusal for the first time, may not tally with the figures as shown in the exhibits of the various Writ Petitions, which are based on the versions downloaded from the website of the respondent State Bar Council. The learned Senior Counsel appearing for the respondent State Bar Council submitted that the figures given in the chart made available to the Court are special fees demanded by the respondent Bar Council of Kerala over and above the resumption fee prescribed by the Bar Council of India, which is Rs.5,000/- payable to the State Bar Council and Rs.2,000/- payable to the Bar Council of India, etc. The Bar Council of India by virtue of the powers conferred under Sec.49(1)(h) of the Advocates Act, 1961, has framed rules in that regard, which are contained in Part VIII of the Bar Council of India Rules. Part VIII specifically deals with "fee leviable under the Act" and it is also clearly stated therein that those provisions in Part VIII are framed as rules under Sec.49(1)(h) of the Act. Further, it is categorically laid down therein that a State Bar Council ::39::
W.P.(C).No. 35411/2015, etc. may levy fee, not exceeding the limits prescribed in any one of the matters mentioned therein. Prior to the amendment made by the Bar Council of India to Part VIII as published in Gazette of India Notification 28.3.2013, the said Part VIII contained 5 entries. Entries 2 to 4 therein had subclauses therein. Entry 5 deals with resumption of practice and fee rates revised with effect from 16.9.2006 as contained in Entry 5, as it stood then, provided as follows:
"5. Fee for resumption of practice as an Advocate, an applicant shall have to pay a sum of Rs. 1000/- in favour of the State Bar Council and Rs. 200/- in favour of the Bar Council of India by way of separate Bank Drafts drawn in favour of the respective bar Councils*."
(*Fee revised w.e.f. 16.9.2006) The amendment of Part II as published in Gazette of India dated 28.3.2015, has been produced as Exts.P-6(3) to P-6(8) in W.P.(C).No. 27369/2014, which is the notification of the Bar Council of India dated 16.12.2012, as published in the Gazette of India dated 28.3.2013, based on the resolution No.114 of 2012 passed by the Bar Council of India. In the amended provision as per the above referred Ext.P-6 series of documents, it is seen that there are 23 Entries and fee for resumption of practice has been stipulated below the tabular column of 23 entries therein. The said provision as it now stands pursuant to the notification published in Gazette of India dated 28.3.2013 reads as follows:
::40::
W.P.(C).No. 35411/2015, etc. "FEE LEVIABLE UNDER THE ACT (Rules under Sec. 49(1)(h) of the Act) A state council may levy fees, not exceeding the limits prescribed hereunder in any of the following matters.
Sl Fee for Modified fee
No. in Rs.
1. Petition challenging the election of one or all members of the State 25,000 per council petition
2. Complaint of professional misconduct under section 35 of the Act. 1000 Provided that no fee shall be payable on a complaint made by any court or tribunal or other statutory body or wherein a proper case the Bar Council grants exemption therefor.
3. The complainant shall be liable to pay in addition to the fee in sub 750 clause (b) the cost of service of process unless the Disciplinary Committee grants exemption therefor.
4. Certificate as to the date of enrolment and the continuance of the 250 name of the advocate on the roll.
5. Certificate required to be produced with the transfer application 500 under Section 18 of the Act
6. Inspection by complainant or the concerned advocates, of 250 documents relating to the disciplinary matters.
7. Inspection of the roll of the advocates or the voters list. 250
8. Any application made in any proceedings before a State Council 500 or its Committee other than the Disciplinary Committee.
9. Complaint of professional misconduct referred under section 36 2500 of the Act.
Provided that no fee shall be payable on a complaint or appeal made by any court or tribunal or other statutory body or where in a proper case the Council grants exemption therefor.
::41::
W.P.(C).No. 35411/2015, etc.
10. The complainant shall be liable to pay in addition to the fee in 500 sub-clause (a) the cost of service of process unless the Disciplinary Committee grants exemption thereof.
11. An appeal filed under section 37 of the Act 2500 12 An application for stay made to the Council under the Act. 1500 13 An application for inspection 500 14 Inspection in cases finally decided when permitted. 500 15 An application for withdrawal under Section 36 of the Act. 2000 16 An application for Review under the Act. 2500 17 An application for the exercise of its power under Section 48A of 1000 the Act (Revision).
18 Any application made in any proceedings before the Council or a 1000 Committee other than the Disciplinary Committee. 19 Every application for an authenticated copy of any certificate, 500 order of other proceedings, entry on any roll, or any document or deposition in any proceeding, before a State Council or the Council or a Committee thereof shall be accompanied by a fee of Rs. 250/- and the copying charges as follows:
Every exemplification of the order or other documents in addition to the folio and other charges.
20 Copying charges for folio 100 22 Fee for every Interlocutory application, including a petition for 500 excusing delay or for obtaining stay for proceedings of a Disciplinary Committee shall be accompanied by a fee of Rs. 25/-
in the case of the Disciplinary Committee of a State Council . 23 Fee for unattested copies of depositions of witnesses 10 for each page For resumption of practice as an advocate, an applicant shall have to pay a sum of Rs.5,000 in favour of the State Bar Council and Rs. 2000/- in favour of the Bar Council of India by way of separate Bank Drafts drawn in favour of the respective bar Councils."
::42::
W.P.(C).No. 35411/2015, etc. Thus it can be seen that on and with effect from 28.3.2013, the resumption fee prescribed statutorily as per the Bar Council of India Rules Part VIII is that an applicant shall have to pay a sum of Rs. 5000/- in favour of the State Bar Council and Rs. 2000/- in favour of the Bar Council of India, thus totalling to Rs. 7,000/-.
24. So, the main question under consideration is as to whether the respondent Bar Council of Kerala has the competence and the vires to stipulate that resumption fee or special fee over and above the resumption fee of Rs.7,000/- as prescribed in the Bar Council of India Rules can be demanded from a candidate, who seeks resumption of practice, so as to terminate his voluntary suspension from practice. For determining this issue, it would be highly pertinent and relevant to refer to the legal principles laid down by the Three Judge Bench decision of the Apex Court in the case Bar Council of Delhi & ors. v. Surjeet Singh & ors. reported in (1980) 4 SCC 211 = AIR 1980 SC 1612 = 1980 KHC 747. The said decision arose out of the rules that were framed by the Bar Council of Delhi for the conduct of election to that State Bar Council, whereby an amendment was made to Rule 3(j) of the Bar Council of Delhi Election Rules, 1968, in the year 1978, whereby it was necessitated that a declaration should be submitted by the ::43::
W.P.(C).No. 35411/2015, etc. Advocates whose names are appearing in the State roll of Advocates directing them to fill up and sign in the declaration form undertaking that Advocates intend to practice ordinarily and regularly within the territorial limits of the Bar Council of Delhi and they should inform any change of address for the proper maintenance of the roll and the voters' list and that further condition that those advocates, who do not submit the declaration within the stipulated time, will stand removed from the electoral roll to be prepared for the purpose of conduct of election to the Bar Council of Delhi. Rule 3(j) of the Bar Council of Delhi Election Rules stipulated that 'Electoral Roll' means and includes the roll containing the names of the advocates prepared in accordance with the rules of the Bar Council of India in Part III, Chapter I. The impugned proviso therein added to clause (j) of Rule 3 in the year 1978, reads as follows:
"Provided that the electoral roll shall not include the name of such advocate who fails to file in the office of the Bar Council, on or before such date (not being earlier than 30 days of the date of notification) as may be notified by the Bar Council in such manner as may be considered proper by it from time to time, or within 45 days of the putting up of the preliminary electoral roll under Rule 4(1) of Chapter I of Part III of the Bar Council of India Rules, a declaration containing the name, address and number of the Advocate on the State Roll and to the effect that:-
(a) He is an advocate ordinarily practising in the Union Territory of Delhi and that his principal place of practice is within Union Territory of Delhi;
(b) He is not an undischarged insolvent;
(c) He has never been convicted by any court for an offence involving
::44::
W.P.(C).No. 35411/2015, etc.
moral turpitude;
or
A period of two years has elapsed since his release after being convicted of an offence involving moral turpitude; (In case of conviction particulars of such conviction should be given.)
(d) He is not in full-time service or business or in any such part-time business or other vocation as is not permitted in the case of practising advocates by the rules of the Bar Council; and
(e) He has not been suspended from practice;
and on the failure to file the declaration or on filing of incomplete or incorrect declaration in any respect, it shall be presumed that the name of such advocate is not to be entered on the Electoral Roll in accordance with Rule 3 of Chapter I of Part III of the Bar Council of India Rules."
Whereas Rule (1) in Chapter I of Part III of the Bar Council of India stipulates that "every Advocate whose name is on the Electoral Roll of the State Council shall be entitled to vote at an election" and Rule (2) of the Bar Council of India Rules provides that "subject to the provisions of Rule 3, the name of every advocate entered in the State Roll shall be entered in the electoral roll of the State Council" and that certain exceptions are also provided therein. By virtue of the insistence in the amendment engrafted in the newly introduced proviso to Rule 3(j) of Delhi Bar Council Election Rules, advocates, whose names were appearing in the State roll and who do not submit the declaration within the said time limit, were directed to be removed from the electoral roll and accordingly the names of more than 2000 candidates whose names are appearing in the State rolls were removed from the final electoral roll of Advocates, who were ::45::
W.P.(C).No. 35411/2015, etc. eligible to participate in the election and the elections were conducted, results were also announced. A contention was raised by the Delhi Bar Council that Sec.15 more particularly sub-sec.(2) (a) thereof under Chapter II of the Advocates Act, 1961, empowered the State Bar Council to frame Rules to carryout the purposes of Chapter II and more particularly in matters relating to "election of members of the Bar Council by secret ballot including the conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the results of election shall be published", etc., and that the said amended provision in Rule 3(j) of Delhi Bar Council Election Rules had also secured approval from the Bar Council of India as required in Sec.15(3) of the Advocates Act and that therefore, the impugned restriction insisting for submission of declaration within the time limit and for removing the names of the Advocates who failed to make such declaration within the stipulated time limit, was fully within the competence and vires of the State Bar Council, etc. However, the said contention raised by the Delhi Bar Council was repelled by the High Court as well as by the Supreme Court. Their Lordships of the Supreme Court had categorically held in para 8 & 9 in the said judgment in (1980) 4 SCC 211, p.219 that mere approval by the Bar Council of India to a ::46::
W.P.(C).No. 35411/2015, etc. rule ultra vires the State Bar Council cannot make the rule valid and nor has it the effect of a rule made by the Bar Council of India and making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things and one cannot take the place of the other. After referring to the provisions contained in Sec.15(2)(a) as well as Sec.15(3) of the Act as well as the provisions contained in the Delhi Bar Council Election Rules as well as the Bar Council of India Rules, the Apex Court held in para 8 of the ruling that the State Bar Council, no doubt, can frame rules for the preparation and revision of electoral rolls under Sec.15(2)(a) of the Act, but that would be in conformity with the requirement of latter part of sub-sec.(4) of Sec.3 also. It is also relevant to note Sec.3(4) of the Act that the Act had specifically stipulated that an Advocate shall be disqualified from voting at an election under sub-sec.(2) or for being chosen as, and for being, a member of a State Bar Council, unless he possesses such qualifications or satisfied such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council, etc.
25. Further Sec.49(1)(a) empowered the Bar Council to frame rules regarding the conditions subject to which an Advocate may be ::47::
W.P.(C).No. 35411/2015, etc. entitled to vote at an election to the State Bar Council including the qualifications or disqualifications of voters, and the manner in which an electoral roll of voters may be prepared and revised by a State Bar Council, etc. But in the garb of making a rule for the preparation and revision of the electoral roll it cannot prescribe disqualifications, qualifications or conditions subject to which an Advocate whose name occurs in the State roll can find place in the electoral roll resulting in deprivation of his right to vote at the election. It was held in Delhi Bar Council's case (supra) that under the impugned proviso to Rule 3(j) of the Delhi Bar Council Election Rules, failure on the part of an advocate to submit the required declaration within the specified time limit entitles the State Bar Council to exclude his name from the electoral roll and such an aspect is squarely covered by the exclusive power conferred on the Bar Council of India under Sec.3(4) and Sec.49(1)(a) of the Advocates Act and therefore, the State Bar Council has no such power or competence to frame the impugned proviso by taking resort to the provisions contained in Sec.15(2)(a) of the Advocates Act. Accordingly, it was held that, no doubt, any rule framed under Sec.15 (2) cannot have the effect unless it is approved by the Bar Council of India under Sec.15(3). Such approval of Bar Council of India under ::48::
W.P.(C).No. 35411/2015, etc. Sec.15(3) can make the rule made by the State Bar Council under Sec.15 (2) valid and effective only if the Rule so made is within the competence of the State Bar Council, otherwise not. That mere approval by the Bar Council of India to a rule ultra vires the State Bar Council cannot make such a rule framed by the State Bar Council valid and nor has it the effect of a rule made by the Bar Council of India and making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things and one cannot take the place of the other. Accordingly, their Lordships of the Apex Court in para 9 of the said judgment had unequivocally held that the impugned proviso to Rule 3(j) of the Delhi Bar Council Election Rules was ultra vires and invalid and consequently the electoral roll prepared by the Delhi Bar Council on the basis of the same resulting in the exclusion of the names of about 2000 advocates from the State roll was not valid in law. Further, it was held by their Lordships of the Supreme Court that whole election was invalid on that account and it could be challenged as such in a writ petition, etc. On a consideration of the rival pleas raised in this case, this Court is of the considered view that the matter in issue is squarely and fully covered against the State Bar Council by virtue of the ratio decidendi laid down by the Apex Court in Bar Council ::49::
W.P.(C).No. 35411/2015, etc. of Delhi & ors. v. Surjeet Singh & ors. reported in (1980) 4 SCC 211.
::50::
W.P.(C).No. 35411/2015, etc.
26. The Parliament in its wisdom, has enunciated a legislative policy as can be seen from the provisions made in the Advocates Act, 1961, that matters in relation to prescription of fee leviable in respect of any matters under the Act is exclusively assigned to the Bar Council of India by prescription of rules to be framed under Sec.49(1)(ah) of the Advocates Act, 1961. No doubt, clause (ah) of Sec.49(1) also empowers the Bar Council of India to frame rules thereunder "the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court". It is also true that the Parliament has also laid down in Sec.24(1)(e) that a person shall be qualified to be admitted as an advocate on a State roll, "if he fulfils such other conditions as may be specified in the rules made by the State Bar Council under Chapter II". Sec.28(2)(d) also empowers the State Bar Council to frame rules to effectuate the purposes of Chapter III of the Act and to lay down "the conditions subject to which a person may be admitted as an advocate on any in such roll". But under the garb of stipulating conditions which may be fulfilled by the candidates, who seek enrolment as envisaged in Sec.24(1)(e) under Chapter III and Sec.28(2)
(d) coming under Chapter III of the Act, the State Bar Council cannot trespass into the arena of the exclusive power conferred by the ::51::
W.P.(C).No. 35411/2015, etc. Parliament to the Bar Council of India to prescribe fee which may be levied in respect of any matter under this Act. That power for prescription of fee for any matter under the Act has been exclusively allotted to the Bar Council of India. The legislative wisdom which persuaded the Parliament while enacting the Advocates Act in the year 1961 may have been diluted by the efflux of time, but by the provisions of statute in the plenary laws continue without any alteration. Therefore, to hold that the State Bar Councils can have the power to prescribe special fees in the matter of resumption apart from the resumption fee prescribed by the Bar Council of India Rules, under the guise that the State Bar council can stipulate "such other conditions" as may be fulfilled by a candidate, who seeks enrolment as envisaged in Sec.24 (1)(e) r/w Sec.28(2)(d), militate against the scheme and the distribution and assignment of powers to the Bar Council of India, vis-a-vis, State Bar Council, as discernible from the various provisions of the Act, more particularly, Sec. 49(1)(h). True, in the instant case, Rule 2(a) of the Bar Council of Kerala Rules has been amended by the State Bar Council as per Ext.R-1(a). Rule 2(a) under Chapter V of the Bar Council of Kerala Rules has been amended as per resolution passed on 20.7.2014 which stated to have secured the approval of the Bar Council of India in their ::52::
W.P.(C).No. 35411/2015, etc. meeting held on 16.10.2014. Rule 2 as well as its clause (a) as it stood before the said amendment referred to in Exts.R-1(a) and (b) provide as follows:
"Rule 2: Every person applying for enrolment under section 24 of the Act as an Advocate on the roll shall file with the Secretary, the following:
(a) An application in form No.2 hereto annexed together with the receipt for payment of the prescribed fees of Rs.250/- to the credit of the Bar Council of Kerala in the Central Bank of India, Ernakulam Branch or the State Bank of India, Trivandrum, Ernakulam or Calicut Branches. If the payment is make in any other branch of the said Banks, the necessary transmission fee shall also be paid.
Provided that where the applicant is one belonging to the Scheduled Caste/Scheduled Tribe the enrolment fee payable by him shall be Rs.125/- provided further that he produced a certificate from the Tahsildar showing that he is a member of a Schedule Caste or Schedule Tribe."
Pursuant to the amendment referred to in Exts.R-1(a) and (b), the said proviso now reads as follows:
"Rule 2: Every person applying for enrolment under section 24 of the Act as an Advocate on the roll shall file with the Secretary, the following:
(a) An application in form No.2 hereto annexed together with the receipt for payment of the application fee and other fees which the council may decide from time to time.
Provided that where the applicant is one belonging to the Scheduled Caste/Scheduled Tribe the enrolment fee payable by him shall be Rs.125/- provided further that he produced a certificate from the Tahsildar showing that he is a member of a Schedule Caste or Schedule Tribe."
It is to be noted that the amendment carried out to Rule 2 is only to clause (a) thereof and not to the operative portion of Rule 2 or to its proviso. Therefore, even after the amendment to clause (a), the operative portion of Rule 2 is relatable only to every person applying for ::53::
W.P.(C).No. 35411/2015, etc. enrolment under Sec.24 of the Act and therefore it goes without saying that amended version of clause (a) thereto also will have the effect only with respect to applying for enrolment even if it is assumed that the amended Rule 2(a) to the extent it permits levy of fee over and above the fees prescribed by the Bar Council of India to be intra vires and valid. In this regard, it is to be noted that voluntary suspension of practice is not an aspect which is seen explicitly covered by any of the provision of the parent Act. Sec.35(3)(c) and Sec.41(3) of the Advocates Act, 1961, envisages suspension of an Advocate from practice consequent to initiation of disciplinary proceedings for misconduct as envisaged in those provisions. Both sides have submitted that apart from these provisions dealing with suspension from legal practice consequent to disciplinary proceedings, there are no provisions in the Act which deal with voluntary suspension of practice of an Advocate consequent to his taking up employment or for any other purposes, etc. Those aspects relating to voluntary suspension from legal practice of an Advocate are explicitly envisaged in the provisions contained in the Bar Council of India Rules. Rule 49 under Sec. VII of Chapter II Part VI of the Bar Council of India Rules reads as follows:
"Rule 49: An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name ::54::
W.P.(C).No. 35411/2015, etc. appears and shall thereupon cease to practice as an advocate so long as he continues in such employment."
Chapter III in part VI of the Bar Council of India Rules deals with the conditions for right to practise which are rules framed under Section 49(1) (ah) of the Advocates Act. Rule 5 under Chapter III Part VI of the Bar Council of India Rules deals with voluntary suspension of practice which reads as follows:
"Rule 5: (1) An advocate who voluntarily suspends his practice for any reason whatsoever, shall intimate by registered post to the State Bar Council on the rolls of which his name is entered, of such suspensions together with his certificate of enrolment in original. (2) Whenever any such advocate who has suspended his practice desires to resume his practice, he shall apply to the Secretary of the State Bar Council for resumption of practice, along with an affidavit stating whether he has incurred any of the disqualifications under Section 24A, chapter III of the Act during the period of suspension. (3) The enrolment Committee of the State Bar Council may order the resumption of his practice and return the certificate to him with necessary endorsement. If the Enrolment Committee is of the view that the advocate has incurred any of the disqualifications, the Committee shall refer the matter under proviso to Section 26(1) of the Act.
(4) On suspension and resumption of practice the Secretary shall act in terms of Rule 24 of Part IX."
Rule 24, Part IX of the Bar Council of India Rules [which is referred to in Rule 5 (4) quoted above] reads as follows:
"Rule 24: (a) When the name of an advocate is removed from the rolls or an advocate is suspended from practice or otherwise punished under an order of any Disciplinary Committee or an order of the Supreme Court under Section 38, or when an intimation of voluntary suspension from practice is received from the advocate, the state Council in respect of a person in its roll and the Council in respect of a person whose name is not in any State Roll, shall ::55::
W.P.(C).No. 35411/2015, etc. furnish information thereof giving the name of the advocate, his roll number and date of enrolment, his address, nature of the punishment inflicted-
(i) to the Registrar of the High Court of the State;
(ii) to the Registrar of the Supreme Court of India;
(iii) to the Bar Association in the High Court;
(iv) to the District Court of the State; and16
(v) to such other authorities as the State Council or the Council
may direct.
(b) The State Bar councils and the Bar Council of India shall also cause to
be published in the State Gazette or the Gazette of the Government of India as the case may be, information relating to the removal from the roll or the suspension of an advocate for misconduct."
This Court in the judgment in the case R.Sreekanth & ors. v. The Kerala Public Service Commission (KPSC) reported in AIR 2010 Ker 170, had an occasion to consider the provisions contained in Rule 49 under Sec.VII of Chapter II of Part VI and Rule 5 under Chapter III Part VI of the Bar Council of India Rules. In the aforesaid ruling this Court had occasion to consider the matters in relation to a selection conducted by the KPSC to the post of Legal Assistant wherein the prescribed qualifications were Degree in Law of any recognized University and a pass in the Bar Council Examination or enrolment as an Advocate. The KPSC therein took up the stand that those candidates earlier secured enrolment under the provisions of the Advocates Act and later voluntary suspended their practice after obtaining employment, cannot be said to have possessed the qualifications of "enrolment" as an Advocate as their enrolment would also stand suspended consequent to their voluntary suspension ::56::
W.P.(C).No. 35411/2015, etc. from legal practice. After construing the above said Rules contained in the Bar Council of India Rules, this Court held in para 15 of the AIR Report that a reading of Rule 49 and 5 will show that if an Advocate accepts employment as a full time salaried employee, he shall intimate the fact to the Bar Council concerned and shall thereupon "cease to practice as an Advocate so long as he continues in employment" and that when he is desirous of resuming practice, he has to make an application as per Rule 5 and on receipt of the application, the Enrolment Committee of the Bar Council is to consider the matter and pass order of resumption and return the enrolment certificate surrendered by him in terms of Rule 5(1). Therefore, this Court held that when an application is made to the Bar Council, what is suspended is not the enrolment as such, but only the right of the Advocate concerned to practice as Advocate and he does not cease to have his enrolment on the rolls of the Bar Council. That, in terms of Rule 5(3), when an application for resumption of practice is made, all that is required is that the Enrolment Committee should decide as to whether the Advocate is entitled to resume his practice and if the decision is favourable to him, without anything further, the Bar Council has to return the certificate to the candidate concerned and the Rules do not contemplate any fresh ::57::
W.P.(C).No. 35411/2015, etc. enrolment for resumption of practice and since that is the effect of Rules 49 and 5, the fact that candidates those who had accepted employment in Government Service and that their right to practice is suspended, does not result in depriving them of their enrolment as Advocates on the rolls of the Bar Council, etc. Thus it was held by this Court that consequent to voluntary suspension from legal practice, a candidate on submitting the resumption application, do not have to undergo any fresh enrolment for resumption of practice.
27. Sri.P.Ravindran, learned Senior Counsel appearing for the respondent State Bar Council submitted that the above said ruling in R.Sreekanth's case (supra) has not taken into consideration many other relevant provisions in the Act and the Rules and the same would require reconsideration for the proper determination of the controversy raised in the context of facts of this case. For that purpose, the learned Senior Counsel has taken to this Court to the provisions contained in the definition clause in Sec.2(a) which defines "advocate", 2(k) "roll", 2(n) "State roll", Sec.22 "Certificate of enrolment", Sec.30 "Right of advocates to practise" and to the provisions contained in Sec.35(3)(c) and Sec.41(3) of the Act. In this context it is very pertinent to note that the parent Act has not envisaged explicitly about the aspects relating to "voluntary ::58::
W.P.(C).No. 35411/2015, etc. suspension of practice" and it has envisaged about suspension from legal practice consequent to disciplinary action for alleged misconduct. But that does not mean that the rule framing authority lacks competence to deal with issues relating to voluntary suspension of practice. Voluntary suspension of practice is a matter which is intimately or at least incidentally connected to matters relating to right to practice of an Advocate and therefore the provisions relating to voluntary suspension of practice can be dealt with under the general power to frame rules conferred on the Bar Council of India under Sec.49(1) of the Act. The exact source of power for the Bar Council of India to frame rules relating to voluntary suspension of practice from out of various clauses in Sec.49(1) will be dealt with subsequently in this judgment. Sec.35 deals with "punishment of Advocates for misconduct"
and Sec.35(3)(c) empowers the disciplinary authority of a State Bar Council after giving the delinquent concerned and the Advocate General to be heard to suspend the advocate from practice for such period as it may deem fit. Sec.41(3) of the Act provides that where any Advocate is suspended or removed from practice, the certificate granted to him under Sec.22, in respect of his enrolment shall be recalled. Rule 6 under Chapter III of Part VI of the Bar Council of India Rules reads as ::59::
W.P.(C).No. 35411/2015, etc. follows:
"Rule 6: (1) An advocate whose name has been removed by order of the Supreme court or a High Court or the Bar Council as the case may be, shall not be entitled to practice the profession of law either before the court and authorities mentioned under section 30 of the Act, or in chambers, or otherwise."
But sub-rule (2) of Rule 6 states that an advocate who is under suspension, shall be under same disability during the period of such suspension as an Advocate whose name has been removed from the roll. Since Rule 6 comes immediately after Rule 5 quoted earlier herein above, both of which are under Chapter III Part VI of the Bar Council of India Rules, it is only reasonable to hold that the provisions contained in Rule 6(2) relating to suspension would be attracted not only in case of suspension consequent to disciplinary proceedings but also to a voluntary suspension from legal practice, etc. In this connection, it is also relevant to note that Bar Council of India has now framed Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, published in the Gazette of India dated 13.1.2015 in which Rule 4(j) thereof defines "non practicing advocate" to mean an advocate enrolled with any State Bar Council, but is not in actual practice of law and is engaged in some other public or private job, business, contract etc., not related to Legal profession and who has been so declared under Rule 13 and Rule 20.2 of these rules and whose name stands published under ::60::
W.P.(C).No. 35411/2015, etc. Rule 20.4. Rule 21 thereof provides that 'non practicing advocates as included in the list of "non-practicing advocates" are not entitled to practice law and to other privileges and rights'. Rule 28 of the Bar Council of India Certificate and Place of Practice (Verification) Rules, 2015, deals with resumption of practice of such non practicing advocate wherein it is provided that if an advocate whose name has been included in the "list of non-practicing Advocates" mentioned in Rule 20.4, intends to resume law practice in the changed circumstances, he may apply to the State Bar Council and that his/her name may be taken out of such list, etc. It is to be noted that even if by the force of Rule 6.2 of the above said Rules, it is held that the provisions of Sec.41(3) of the Advocates Act will also be attracted in the case of candidates who have secured voluntary suspension from legal practice so as to entail in the recall of their enrolment certificate, such an aspect may not have much significant bearing in the case of a candidate who seeks resumption of practice as per the Bar Council of India Rules. In terms of Rule 5(2) under Chapter III Part VI of the Bar Council Of India Rules which stipulates that whenever any advocate, who has suspended his legal practice desires to resume his practice, he shall apply to the Secretary of the State Bar Council for resumption of practice, along with an affidavit stating ::61::
W.P.(C).No. 35411/2015, etc. whether he has incurred any of the disqualifications under Sec.24A, Chapter III of the Act during the period of suspension and Rule 5(3) further mandates that the Enrolment Committee of the State Bar Council may order resumption of practice and return the certificate to him with necessary endorsement. Therefore, the conclusion arrived at by this Court in the aforestated ruling in R.Sreekanth & ors. v. The Kerala Public Service Commission reported in AIR 2010 Ker 170 para 15 thereof that in terms of Rule 5(3) when an application for resumption of practice is made, all that is required is that the enrolment committee should decide as to whether the Advocate is entitled to resume his practice and if the decision is favourable to him, without anything further, the Bar Council has to return the certificate to the candidate, etc., is the correct view of the matter. This is because though the parent Act does not have any explicit provisions regulating resumption of practice of a candidate, who had sought voluntary suspension of practice, the Rules framed by the competent authority explicitly makes a provision as in Rules 5(2) and 5(3) as stated above and as per Rule 5(3) if the Enrolment Committee of the Bar Council is satisfied that the candidate has not incurred any of the disqualifications under Sec.24A, then such request for resumption is only to be allowed and in which case the enrolment ::62::
W.P.(C).No. 35411/2015, etc. certificate is also to be returned to the applicant so as to resume his practice. Further Rule 5(4) also mandates that on suspension and resumption of practice, the Secretary shall act in terms of Rule 24 of Part IX, etc. Therefore, irrespective as to the provisions flowing from Sec.41(3) of the Advocates Act, a candidate, who has sought voluntary suspension from legal practice as per the aforequoted Rule 49 and Rule 5(1), a right is conferred on such a candidate as per Rules 5(2) and 5(3) to seek resumption of practice consequent to his cessation of employment, etc., and that if he has not incurred Sec.24A disqualification, then he is entitled to get his resumption application allowed by the State Bar Council, etc. Therefore, this Court in R.Sreekanth & ors. v. The Kerala Public Service Commission reported in AIR 2010 Ker 170 has rightly concluded that the said rules framed by the Bar Council do not contain any permission for resumption of practice. In the facts of this case, it is not necessary to decide as to whether the suspension of legal practice consequent to resort to Sec.49 and Rule 5(1) would result in suspension of enrolment in view of the provisions flowing from Sec.41(3) of the Act on candidates who have sought voluntary suspension from practice in view of the provisions contained in Rule 6(2). Therefore, it is not required or necessary for this Court to ::63::
W.P.(C).No. 35411/2015, etc. pronounce any opinion on the correctness or otherwise of the contention raised by the learned Senior Counsel appearing for the State Bar Council that the view rendered in R.Sreekanth & ors. v. The Kerala Public Service Commission reported in AIR 2010 Ker 170, that voluntary suspension of legal practice does not result in depriving such candidates of their enrolment as advocates on the rolls of the Bar Council, etc.
28. Now, coming to the source of power of the Bar Council of India to frame rules as in the aforequoted Rule 49(1) r/w Rule 5 of the Bar Council of India Rules, the following aspects would be relevant in that regard. The Apex Court in the judgment in Indian Council of Legal Aid and Advice & ors, v. Bar Council of India & anr. reported in (1995) 1 SCC 732 had dealt with the vires of Rule 9 (introduced as per amendment to the Rules dated 22.8.1993 framed by the Bar Council of India) barring enrolment to persons who have completed 45 years of age. One of the contentions put forward by the Bar Council of India to justify the said impugned rule was that they had the power and competence to frame the impugned rule restricting upper age limit for enrolment in terms of the provisions contained in Sec.49(1)(ah) which relates to "the conditions subject to which an Advocate shall have the right to practice and circumstances under which a person shall be deemed to practice as an ::64::
W.P.(C).No. 35411/2015, etc. Advocate in a court". Dealing with that contention the Apex Court held in para 8 of the said reported ruling (see SCC report) that the plain language of the clause (ah) of Sec.49(1), makes it clear that under the said provision, the Bar Council of India can lay down 'conditions' subject to which 'an advocate' shall have the right to practice and these conditions, which the Bar Council of India can lay down, are applicable to an advocate who has already been enrolled as an advocate by the State Bar Council concerned and the conditions which can be prescribed must apply at the post-enrolment stage since they are expected to relate to the right to practise and therefore such provision cannot be operated at the pre- enrolment stage. By the rule impugned, the entry of those who have completed 45 years of age on the date of application for enrolment was sought to be barred. Their Lordships of the Supreme Court held that the rule clearly operates at the pre-enrolment stage and cannot, therefore, receive the shelter of clause (a) of Sec.49(1) of the Act, that under the said clause conditions applicable to an advocate touching his right to practice can be laid down, and if laid down, he must exercise his right subject to those conditions. But the language of the said clause does not permit laying down of conditions for entry into the profession and therefore the Apex Court held that there is no hesitation in coming to ::65::
W.P.(C).No. 35411/2015, etc. the conclusion that clause (ah) of Sec.49(1) of the Act does not empower the Bar Council of India to frame a rule barring persons who have completed 45 years of age from enrolment as an advocate and the impugned rule is, therefore, ultra vires the said provision. Viewed from this perspective, it is to be noted that a candidate who seeks voluntary suspension of practice consequent to his secured employment, etc., is a candidate who have already secured enrolment on the rolls of the State Bar Council as an advocate as per the provisions of the Advocates Act, 1961. Consequent to his cessation of employment or such other reasons if he prefers resumption of legal practice, that is a matter which is eminently and fully within the zone of "post enrolment matters" as envisaged in para 8 of the aforecited ruling of the Apex Court in Indian Council of Legal Aid & Advice and ors. v. Bar Council of India & anr. reported in (1995) 1 SCC 732. Since that is the position, that would be a matter which would fully fall within the province of clause (ah) of Sec.49(1) of the Act which deals with "the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a court". Therefore, the Bar Council of India alone is the exclusive authority to frame rules in matters connected with voluntary suspension of practice and ::66::
W.P.(C).No. 35411/2015, etc. resumption of practice in respect of a candidate who has already secured enrolment under the Advocates Act. The Bar council of India has rightly made such provisions as in the aforequoted clause (ah) of Sec.49(1) and Rule 5 under the Bar Council of India Rules.
29. Sec.24(1)(e) only authorizes the State Bar Councils to frame rules stipulating as to "other conditions" [that is apart from the conditions stipulated in clauses (a) to (c) of sub-sec.(1) of Sec.24] that are to be fulfilled by persons who are qualified to be admitted as an advocate on the State roll and that too, this power is headed by further condition that this power will be subject to the other provisions of the Act and the Rules made thereunder, etc. Therefore, persons who seek resumption of legal practice consequent to their voluntary suspension of practice preferred much subsequent to their initial enrolment in the Bar will not come within the expression "person who is qualified to be admitted as an advocate on the roll" which is the subject matter of Sec.24(1) which is in relation to persons who are not yet enrolled with the State Bar Councils. Consequently, the power under Sec.28(2)(d) also will not be available for prescribing rules by the State Bar Council in respect of post enrolment matters like resumption matters, etc.
30. It appears that Bar Council of Kerala have also framed the Bar ::67::
W.P.(C).No. 35411/2015, etc. Council of Kerala Rules, 1979. Rule 4 under Chapter VI of those Rules reads as follows:
"Rule 4: Any Advocate who suspends practice shall, within fifteen days of the date of suspension inform the Bar Council in writing of such suspension, any person who after enrolment has suspended or ceased to practice may resume practice and in that event he shall intimate the Bar Council within 15 days of the resumption of practice."
Since the said Rule framed by the Bar Council of Kerala is not in any manner derogatory or repugnant to the aforequoted Sec.49(1)(ah) and Rule 5 framed by the Bar Council of India and as the vires of the said Rules framed by the State Bar Council Rules is not challenged before this Court, in the facts of this case there is no necessity to decide as to whether the said Rule 4 framed by the State Bar Council is ultra vires, etc. But, having regard to the legal principles laid down by the Apex Court in para 8 of the decision reported in (1995) 1 SCC 732, this Court has no hesitation to hold that the matters relating to voluntary suspension of legal practice and resumption of practice, etc., would fall eminently within the exclusive zone of clause (ah) of Sec.49(1) and therefore those are matters within the sole province of the Bar Council of India. Since that is the legal position of the matter, the matters relating to prescription of fees in relation to entertaining of an application for resumption of legal practice should also be a matter which should be ::68::
W.P.(C).No. 35411/2015, etc. within the exclusive concern and province of the Bar Council of India.
31. Sri.P.Ravindran, learned Senior Counsel appearing for the State Bar Council, has raised an argument that separate functions are assigned to the Bar Council of India and the State Bar Councils as can be seen from a reading of Secs.6 & 7 and other provisions of the Act. Therefore, on this basis, it is contended by the learned Senior Counsel that power given to Bar Council of India to frame Rules as in Sec.49(1) (ah) is only for framing rules for effectuating the discharge of the functions of Bar Council of India under the Act and for this purpose, he would place emphasis on sub-sec.(1) of Sec.49 which reads as follows:
"Sec.49. General power of the Bar Council of India to make rules.
(1) The Bar Council of India may make rules for discharging its functions under this Act ...................." (emphasis supplied).
On this basis, he would contend that the Bar Council of India has no power to frame rules by taking resort to the provisions under Sec.49(1) in respect of matters which are relatable to functions that are to be discharged by the State Bar Council and therefore he would contend that clause (h) of sub-sec. 49(1) which empowers the Bar Council of India to prescribe rules regarding "the fees which may be levied in respect of any matter under this Act" should be read down so as to limit the power of the Bar Council of India to prescribe fees only in relation to matters ::69::
W.P.(C).No. 35411/2015, etc. which are the functions of the Bar Council of India and not for the purpose of prescribing fees in relation to matters which are relatable to the functions of State Bar Councils. In this regard, the learned Senior Council would also place reliance on para 11 of the aforecited ruling of the Apex Court in Indian Council of Legal Aid & Advice & ors. v. Bar Council of India & anr. reported in (1995) 1 SCC 732, which reads as follows:
"11. It seems Parliament while enacting the Act created agencies at the State level as well as at the Central level in the form of State Bar Councils and Bar Council of India and invested them with rule-making powers on diverse matters touching the legal profession, presumably because it must have realised that matter pertaining to the profession are best left to informed bodies comprising of members of the said profession. However, while doing so it provided for basic substantive matters, e.g., eligibility for entry into the profession (Section 24), disqualification for enrolment (Section 24-A), authority entitled to grant admission (Sections 25 and 26), the authority which can remove any name from the roll (Section 26-A), etc., and placed them within the domain of a State Bar Council. Thus it is the State Bar Council which alone must decide the question of enrolment of an applicant on its roll. Under Section 24 a person who is a citizen of India and possesses a degree in Law becomes qualified to be admitted as an advocate if he has completed twenty-one years of age, subject of course to the other provisions of the Act. No doubt he must fulfil the other conditions specified in the rules made by the State Bar Council [Section 24(1)(e)]. Every person whose name is entered in the list of advocates has a right to practise in all courts including the Supreme Court, before any tribunal or other authority. It is, therefore, within the exclusive domain of the State Bar Councils to admit persons as advocates on their rolls or to remove their names from the rolls. There is no provision in Chapter III dealing with admission and enrolment of advocates which restricts the entry of those who have completed 45 years as advocates. Nor has the State Bar Council made any such rule under its rule-making power."
Accordingly, it is contended by the learned Senior Counsel appearing for the State Bar Council that it is the exclusive function of the State Bar ::70::
W.P.(C).No. 35411/2015, etc. Council to ensure discharge of its function so as to prescribe "other conditions" specified in the rule, which are to be attained by a candidate to seek enrolment as per Sec.24(1)(e) r/w Sec.28(2)(d) under Chapter III of the Act and therefore, Bar Council of India cannot prescribe fees in respect of matters which are relatable to functions to be discharged exclusively by the State Bar Councils as those are envisaged in Sec.24(1)
(e) r/w Se.28(2)(d) of the Act.
32. This Court is not prepared to countenance the above said argument advanced by Sri.P.Ravindran, learned Senior Counsel appearing for the State Bar Council, for reasons more than one. It has already been held hereinabove that matters relating to voluntary suspension of practice and resumption of practice are matters which vest within the sole and exclusive province of the Bar Council of India in term of clause (ah) of Sec.49(1) of the Act as they would eminently and fully fall within the zone of "post enrolment matters" as envisaged in para 9 of the aforequoted ruling in (1995) 1 SCC 732. Assuming that the power of the Bar Council of India so as to prescribe fees as envisaged in Sec.49(1)(h) is confined to prescription of fees in relation to functions to be discharged by the Bar Council of India alone, still it is only to be held that the matters in relation to prescription of fees ::71::
W.P.(C).No. 35411/2015, etc. relating to resumption of practice of a candidate who had earlier sought voluntary suspension of practice would be a matter which is within the exclusive province allotted to the Bar Council of India and therefore prescription of fees in relation to such "post enrolment matter" would vest within the proper zone of Sec.49(1)(h) of the Act, even if the said provision is read down in the manner suggested by the learned Senior Counsel. Bar Council of India has already framed statutory rules prescribing resumption fee @ Rs.5,000/- payable to the State Bar Council and Rs.2,000/- as payable to the Bar Council of India, thus totalling only an amount of Rs.7,000/-. The said enhancement limit has been made effective as per the above referred amendment introduced as per Gazette of India notification dated 28.3.2013. Therefore, it is only to be held that any action taken by the State Bar Council so as to stipulate any fee styled either as resumption fee or as special fee in addition to the resumption fees prescribed by the Bar Council of India would fall foul of the restrictions and limitations imposed in the Advocates Act and the Rules framed by the Bar Council of India and therefore would be ultra vires.
33. Moreover, Rule 2(a) of the Bar Council of Kerala Rules as mandated in terms of R-1(a) and (b) are only in relation to enrolment ::72::
W.P.(C).No. 35411/2015, etc. aspects and even if it is held that the said rule is intra vires the State Rule for post enrolment matters and therefore the said Rule 2(a) cannot be the justifiable basis for stipulating resumption fees by the State Bar Council either as resumption fee or as special fee over and above the prescribed fee which comes only to Rs.7,000/-. That apart, the mere fact that the Bar Council of India has granted approval to the said amended Rule 2(a) as per Ext.R-1(a) will not have the effect of validating such a rule if it is otherwise ultra vires. The ratio decidendi has been laid down by the Apex Court in the aforecited ruling in Bar Council of Delhi & ors. v. Surjeet Singh & ors. reported in (1980) 4 SCC 211, wherein it was held that mere approval granted by the Bar Council of India can make the rule made by the State Bar Council valid and effective only if the rule made is fully within the competence of the State Bar Council, otherwise not, and mere approval by the Bar Council of India to a rule ultra vires the State Bar Council cannot make the rule valid nor has it the effect of a rule made by the Bar Council of India. Further it has also been held therein that making a rule by the Bar Council of India and giving approval to a rule made by the State Bar Council are two distinct and different things and one cannot take the place of the other. This Court is of the considered view that the ratio ::73::
W.P.(C).No. 35411/2015, etc. decidendi of the aforesaid ruling of the Apex Court is applicable to the facts of this case. That apart, this Court is also of the view that the Apex Court has already held in O.N.Mohindroo v. The Bar Council of Delhi & Ors. reported in AIR 1968 SC 888 and Bar Council of Uttar Pradesh v. State of Uttar Pradesh & anr. reported in (1973) 1 SCC 261 that the legislative competence to frame a law under Advocates Act, 1961, was enacted under Entries 77 & 78 of List I and that therefore the competence to lay down law for imposition of fees is traceable to Entry 96 of the Union List and that therefore the Parliament has the exclusive competence to frame a law prescribing fee to be imposed in matters relatable to such an Act. The Parliament in its wisdom has chosen to enunciate a special legislation valid which is contained in Sec.49(1)(h) of the Act, that the Bar Council of India is given the exclusive authority to frame rules to prescribe the fees leviable in respect of "any matter under the Act". The language employed by the Parliament in the engraftment of such clause (h) of Sec.49(1) is categoric and clear. The overall functions of the Bar Council of India are not to be seen in the isolated context as flowing from the provisions contained in Sec.7 alone. There are other provisions in the Act which envisage the functions of the Bar Council of India as in Sec.3(4) and various other provisions, as can be ::74::
W.P.(C).No. 35411/2015, etc. seen from a mere scanning of the various related provisions of the Act.
34. Sec.15(1) under Chapter II of the Act grants power to the State Bar Council to frame Rules to effectuate the provisions in Chapter II of the Act. In the same breath, the Parliament has also incorporated sub-sec.(2) to Sec.15. Such rules made thereunder can have the legal effect only if it is approved by the Bar Council of India. Likewise, Sec.28 (1) grants power to the State Bar Council to frame rules so as to effectuate the provisions contained in Sec.28(3). Similarly, in the same breath, the Parliament in its wisdom has also chosen to mandate that the Bar Council of India alone will have the exclusive authority to frame rules in the matters covered under Sec.49(1) and more particularly clause (a) to (j) thereof. Therefore, this Court has no hesitation to hold that framing of rules in respect of the subject matter as in clauses (a) to
(j) of Sec.49(1) is also one of the functions of the Bar Council of India. In the light of all these aspects, clause (h) is to be read in such a manner so as to effectuate the objective of the legislative policy which is to assign the Bar Council of India the sole authority to prescribe rules in the matter of laying down fee which is in respect of any matter under this Act, has full and wide amplitude. Therefore, it is only to be held that the State Bar Council will have no jurisdiction to prescribe any fee ::75::
W.P.(C).No. 35411/2015, etc. in relation to resumption of practice of a candidate who had sought voluntary suspension from practice. Merely because the Bar Council of India has given approval to Rule 2(a) will not make the said rule valid and competent so as to justify the imposition or collection of any amount by way of resumption fee or styled as additional fees or special fees over and above resumption fee prescribed by the Bar Council of India Rules.
35. Accordingly, it is held that the impugned notifications issued by the State Bar Council justifying the demand of fees for resumption of candidates over and above the resumption fees prescribed by the Bar Council of India is ultra vires and illegal.
36. There is yet another important aspect of the matter. In the aforecited ruling of the Apex Court in Secunderabad Hyderabad Hotel Owners' Association & ors. v. Hyderabad Municipal Corporation, Hyderabad & anr. reported in (1999) 2 SCC 274 p.282 para 9, Delhi Race Club Ltd. V. Union of India reported in (2012) 8 SCC 680 p. 699, Sreenivasa General Traders & ors. v. State of Andhra Oradesh & ors. reported in (1983) 4 SCC 353 and in other rulings, it was consistently held by the Apex Court that even if the fee charged as licence fee does not bar any arithmetical equivalence with the cost of rendering service but that it is ::76::
W.P.(C).No. 35411/2015, etc. necessary that there should be a reasonable relationship between the levy of fees and services rendered and such fees demanded as licence fees should not be excessive. Compared to the fee structure permitted by the Bar Council of India which is now fixed at Rs.7,000/-, the fee that is sought to be collected by the Bar Council of Kerala has been varying from time to time and that too, for such a short period. It is also relevant to bear in mind that it is by now well established that actions of the State authorities by legislation or by execution, should not be tainted with arbitrariness and unreasonableness, which is not a hall mark of equality principle but is the very anti thesis of equality and rule of law principles. The Apex Court in the celebrated judgment in E.P.Royappa v. State of Tamil Nadu reported in (1974) 4 SCC 3 has clearly held in para 84 thereof that from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch and where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, etc. Even before rendering E.P.Royappa's case (supra), earlier a Constitution Bench of the Apex Court in S.G.Jaisinghani v. Union of India & ors reported in AIR 1967 SC 1427 has clearly held in para 14 thereof that the absence of arbitrary power is the first essential of the rule of ::77::
W.P.(C).No. 35411/2015, etc. law upon which our whole constitutional system is based and in a system governed by rule of law, discretion when conferred upon executive authorities, must be confined within clearly defined limits and the rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decision should be predictable and the citizen should know where he is, and if a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law, etc.
37. In this regard, as already held herein above, only clause (a) of Rule (2) of the aforequoted Bar Council of Kerala Rules has been amended and the operative portion of Rule (2) has remained unaltered and even if the amended Rule 2(a) assumed to be intra vires, the same would be applicable only for enrolment of fresh candidates and it is only for that amended provision, the Bar Council of India has granted approval in respect of Ext.R-1(b). Rule 2(a) of Chapter V of Bar Council of Kerala Rules is solely relatable to matters which come within Chapter III of the Act dealing with "admission and enrolment of advocates". Whereas matters in relation to resumption of practice would fall fully within post enrolment matters and will not come within the ambit of Chapter III of ::78::
W.P.(C).No. 35411/2015, etc. the Act. The respondent State Bar Council has no case in the counter affidavit or at the time of arguments that the impugned notifications produced in these cases, which relate to the demand of additional resumption fees and special fees for resumption, etc., were also matters which had obtained prior approval of Bar Council of India. As per the case projected by the State bar Council, they have secured approval for Ext.R-1(b) which is only in relation to Rule 2(a), the operative portion of which is restricted and confined to enrolment aspects alone. Therefore, it is only to be held by this Court that the Bar Council of India has not granted their approval for the impugned action taken by the State Council for collection of special fee and additional fee for resumption application over and above resumption fee prescribed in the Bar Council of India Rules. For these reasons also the impugned action is illegal.
38. That apart, a reading of the various exhibits produced in the various writ petitions show that the amounts demanded for resumption fee or additional fees for resumption have been varying randomly from time to time. In W.P.(C).No.27369/2014, the documents show that the resumption fee stipulated therein is Rs.10,000/- as per Ext.P-3 therein, whereas in Ext.P-4 of W.P.(C).No.34028/2015, the resumption fee is shown at 3 different slabs at Rs,20,000, Rs.25,000/-
::79::
W.P.(C).No. 35411/2015, etc. and Rs.50,000/- as stated herein above. In W.P.(C).Nos.23718/2015, 24499/2015 and 7007/2015, the fee structure notified for resumption fee is Rs.20,000/-, Rs.25,000/- and Rs.50,000/- as the case may be depending upon the time period taken between the date of application for resumption and suspension of the legal practice. In W.P.(C). No.27484/2015 the resumption fee notified as per website notification dated 3.8.2015 is shown as Rs.20,000/-, Rs.25,000/- and Rs.40,000/- depending upon the time factor as mentioned above. In W.P.(C). No.2863/2016, the revised fee structure from 9.6.2014 is Rs.15,000/-, Rs.20,000/- and Rs.35,000/-, etc. These figures do not fully tally with the figures given in the chart made available by the Secretary of the respondent State Council at the time of hearing. Whatever be the correct factual position in that regard, the indisputable aspect of the matter is that the amounts demanded have been randomly varying from time to time which appears to be highly arbitrary and is not on the basis of any reasonable objective and transparent principles. The said fee also appears to be grossly excessive and disproportionate. When the Apex regulatory body had fixed the resumption fee at Rs. 7000/-, it is not understandable to this Court as to what exactly the prompted these random variances in these figures within very short period and as to the ::80::
W.P.(C).No. 35411/2015, etc. rationale and logic for that.
39. Therefore, the only conclusion that can be reached by this Court based on the available pleadings and materials on record is that that said impugned action is excessive and arbitrary. For that reason also the impugned action is also liable to be interfered with. The respondent State Bar Council has made averments and contentions that they do not have any source of income and they are constrained to impose fees of this nature only for meeting their expenditure for various activities and paying salary to the staff, etc. In the judgment in Bar Council of Maharashtra & anr. v. Union of India & ors. reported in AIR 2002 Bombay 220, a Division Bench of the Bombay High Court had dealt with a Writ Petition filed under Article 226 of the Constitution of India filed by none other than the State Bar Council of Maharashtra praying that the provisions contained in Sec.24(1)(f) of the Act which restricts collection of enrolment fee at a nominal figure of Rs.250/- at that point of time is arbitrary and too low and that the said prayer was made by the Bar Council of Maharashtra in order to enable them to collect higher fees so as to recoup their various expenditure. The said judgment was rendered by the Division Bench of the Bombay High Court in W.P.(C).No.2166/1989. It was contended therein that the ::81::
W.P.(C).No. 35411/2015, etc. provisions contained in the Advocates Act, 1961, restricting the enrolment fee leviable, are based on an outmoded legislative policy and the writ court should take a proactive view in the matter so as to take steps by the State Bar Council to collect fees higher than the one stipulated under Sec.24(1) of the Act. Maharashtra Bar Council has also enhanced the fees periodically from the advocates so as to recoup their expenses. The Division Bench of Bombay High Court repelled all the contentions and held that even if the legislative policy is not keeping in tune with the changing times, the remedy in such situation is for the persons affected to approach the Central Government so as to pursue them to take appropriate steps for amendment of the impugned provisions of the Advocates Act, and that even if the Bar Council intends to recover fee periodically from advocates, the Bar Council cannot be permitted to recover from them unless such legislation is made, etc. Therefore, a reading of the said judgment would clearly give the picture that even as early as in the year 1989, Maharashtra Bar Council was fully aware about the problems in the limited source of fees that are collectable in terms of the Advocates Act and the provisions made thereunder and the Division Bench of the Bombay High Court has clearly held therein that even as regards Bar Council's grievance that it should be ::82::
W.P.(C).No. 35411/2015, etc. permitted to recover renewal fee periodically from the Advocates, unless such legislation is made, the Bar Council cannot be permitted to recover such renewal fee from the Advocates. It is for the Bar Council to take up the matter with the Central Government so as to take appropriate steps in the amendment of the various provisions of the Act so as to receive higher amounts from the Advocates, etc. Therefore, the argument advanced by the respondent State Bar Council regarding the various expenses met by them and the impugned action is only to recoup the expenses in that regard can be of no avail so long as the impugned action is ultra vires the provisions of the Act and the Rules framed thereunder. It is not known to this Court from the pleadings and materials on record as to whether the Bar Councils, including the Bar Council of Kerala had taken any effective steps to approach the Government of India so as to bring forth fine tuned amendments to the Advocates Act, 1961, so as to enable collection of fee in a more effective manner for meeting the expenses of various Bar Councils, etc. Prima facie, this Court also feels that some of the provisions contained in the Advocates Act and consequential Rules framed by the Bar Council of India may place serious hurdles on the capacity of the State Bar Councils to raise adequate finance for meeting their expenses. Even if it ::83::
W.P.(C).No. 35411/2015, etc. is assumed that the legislative policy enunciated at the time of enactment of the Advocates Act, 1961, has become outmoded, it would fall eminently within the legislative policy and it is for the Central Government to be alive to such concerns that may be brought forward by the Bar Council of India and various State Bar Councils so as to take a realistic call in the matter. It is also for the State Bar Council and Bar Council of India to impress upon the Central Government not only for amending and fine tuning the various provisions in the Act so as to collect higher fees in a reasonable manner but also to provide for finance by the Central Government and State Government and other agencies if it is found to be so necessary. Those are all matters which come within the zone of consideration of the Government of India and the Parliament. It is hoped and expected that if such serious efforts are made by the various State Bar Councils including the Bar Council of Kerala to impress upon the Central Government about the need for having a fresh look on the Advocates Act in the matters of collecting reasonable but higher fees, etc., then it is for the Central Government to take an appropriate decision in the matter. It is hoped and expected that the authorities concerned will take a realistic and pragmatic decision in such request so as to overcome the difficulties, if any, that ::84::
W.P.(C).No. 35411/2015, etc. are caused to the State Bar Councils and Bar Council of India, in the light of the provisions of the Advocates Act and the Rules framed thereunder as it now stand.
40. Learned Senior Counsel appearing for the respondent State Bar Council also raised a contention that the impugned differentiation made for demanding special fee for resumption at different slabs is a reasonable classification in view of the legal principles laid down by the Apex Court in S.Seshachalam & ors. v. Chairman, Bar Council of Tamil Nadu & ors. reported in (2014) 16 SCC 72, etc. As this Court has already held that the State Bar Council has no competence or vires to demand resumption fee over and above the amount as prescribed by the Bar Council of India, it is not necessary to go into those details. The impugned differentiation in the case of resumption of practice of candidates who sought voluntary suspension is on different slabs depending upon 5 years, 10 years or 15 years. In this regard it is to be noted that all the website notifications produced in these writ proceedings show that different amounts are demanded depending upon the time factor. For example, Ext.P-2(5) in W.P.(C).
No.27484/2015 on page 13 reads as follows:
"Resumption fee - Within 5 years Rs.20,000/-
Within 10 years Rs.25,000/-
::85::
W.P.(C).No. 35411/2015, etc.
More than 10 years Rs.40,000/-"
The amounts are varying at different point of time as produced in the various exhibits produced in the various writ petitions. But the time factor as mentioned above is the same. But what is the reference point for the commencement of the time factor is not disclosed from any of the aforementioned notifications or from any of the pleadings of the writ petitions. If it is in the case of fresh enrolment, it is stipulated in those website notifications that the time factor is depending as to the time taken for submitting their enrolment application after the acquisition of the LLB Degree. But in the case of resumption of voluntary suspension of legal practice, it is not discernible as to the basis on which time factor has been stipulated. It is not known that the time factor is to commence from the date of voluntary suspension of the legal practice or from the date of superannuation of retired employees who seek resumption of practice. Since there is no clarity in this regard, it is only to be held that the said distinction sought to be made out for resumption fee as notified in those website notifications can be held to be only on the basis of arbitrary considerations. Most of the candidates who seek employment could have got a spell of service around 20-30 years. Therefore, the said time period of 5 years, 10 years or more than ::86::
W.P.(C).No. 35411/2015, etc. 10 years may not be commencing from the date of suspension of voluntary practice. Whether the said time period is to commence from the date of suspension of legal practice of the candidates concerned, may not have any reasonable nexus with the object sought to be achieved by such differentiation and so the legal principles laid down by the Apex Court in S.Seshachalam & ors. v. Chairman, Bar Council of Tamil Nadu & ors. reported in (2014) 16 SCC 72 may not necessarily apply to the facts of this case, etc.
41. The upshot of the above discussion is that the impugned demands and the impugned notifications issued by the respondent Bar Council of Kerala demanding resumption fee styled as special fee or additional fee over and above the resumption fee of Rs.7,000/-
prescribed by the Bar Council of India is clearly ultra vires, invalid and illegal and such demands and notifications will stand quashed. It is also consequently declared that the petitioners herein will have the right to resume their practice if they have paid the resumption fee totaling to Rs.7,000/- as prescribed in the Bar Council of India Rules and if they have not suffered from any of the disqualifications as laid down in Se.24A of the Act and in case they have filed requisite application along with prescribed affidavit in support of the application in that regard.
::87::
W.P.(C).No. 35411/2015, etc. Interim order passed in these cases is made absolute subject to the above said conditions mentioned hereinabove. It is pleaded in some of the Writ Petitions that those petitioners have already paid the higher demanded amount which comes over and above the resumption fee of Rs.7,000/- prescribed by the Bar Council of India and in all such cases, the respondent Bar Council of Kerala will take steps forthwith so as to refund the amounts paid by those petitioners which comes over and above the resumption fee of Rs.7,000/- prescribed by the Bar Council of India. Such of those petitioners who have paid such amounts over and above the resumption fee of Rs.7,000/- prescribed by the Bar Council of India, will make necessary steps for seeking refund in terms of the direction in this judgment without any further delay giving the details of payment and the Secretary of the Bar Council of Kerala will ensure that steps are taken forthwith so as to verify those details and if it is found that they have paid higher amount over and above the resumption fee of Rs.7,000/-, then the balance amount should be refunded to those petitioners within a period of one month from the date of presentation of such refund application which is to be accompanied along with certified copy of this judgment and failure to refund within that time will entail payment of 10% interest from expiry ::88::
W.P.(C).No. 35411/2015, etc. of that time limit upto date of actual payment. In case if any of the petitioners have not paid the resumption fee of Rs.7,000/- as prescribed, either in whole or in part, and have secured resumption on the basis of the interim order in any of these Writ Petitions, then it is made clear that such of those petitioners, who have not paid the amounts so due in terms of the prescription made by the Bar Council of India Rules, totalling to an amount of Rs.7,000/- then it is only on making full payment of the said amount of Rs.7,000/- as prescribed in the Bar Council of India Rules that they will get right to resume their legal practice. Such of those petitioners who have not paid the said amount of Rs.7,000/- either in whole or in part should make payment of the amount so as to meet with the fee prescribed by the Bar Council coming to Rs.7,000/- within a period of one month from today failing which the Secretary of the State Bar Council will be at liberty to proceed as against them appropriately including the option to pass necessary orders disallowing their resumption application until payment of the said amount, etc.
42. Before parting with these cases, this Court would place its deep appreciation for the effective arguments and assistance rendered by all the Advocates appearing in these matters, and a special reference ::89::
W.P.(C).No. 35411/2015, etc. in that regard should be made to Sri.P.Raveendran, learned Senior Counsel appearing for the respondent State Bar Council and Sri.M.M. Monayi, learned Advocate. This Court would also place its deep appreciation for the assistance rendered ably by Sri.Saigi Jacob Palatty, learned Senior Government Pleader who volunteered to assist this Court for collating the factual aspects dealt with in each of these writ petitions and had also assisted this Court in citing several authorities in these matters. The Assistant Solicitor General will forward a copy of this judgment to the Government of India in the Ministry of Law for necessary information.
With these observations and directions, the Writ Petitions stand disposed of.
ALEXANDER THOMAS, Judge.
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