Himachal Pradesh High Court
Near Ganpati Temple vs Arun Kumar Roy on 28 April, 2022
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
.
ON THE 28th DAY OF APRIL, 2022
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE CHANDER BHUSAN BAROWALIA
CIVIL WRIT PETITION NO. 677 OF 2020
Between:-
SANJAY MANDYAL SON OF SHRI
MAHINDER
SINGH MANDYAL,
RESIDENT OF HOSPITAL ROAD
NEAR GANPATI TEMPLE, MANDI
TOWN, TEHSL SADAR, DISTRICT
MANDI, H.P.
...PETITIONER
(SH. R. L. CHAUDHARY & MR. H.
R. SIDHU, ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH ITS SECRETARY (LAW)
TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA-
171002.
2. HIMACHAL PRADESH ADVOCATES
WELFARE TRUSTEE COMMITTEE
THROUGH ITS SECRETARY, BAR
COUNCIL OF HIMACHAL
PRADESH, SHIMLA-171001.
3. BAR COUNCIL OF HIMACHAL
PRADESH THROUGH ITS
SECRETARY, SHIMLA-171001.
...RESPONDENTS
(ASHOK SHARMA, ADVOCATE
GENERAL WITH SH. RAJINDER
DOGRA, SR. ADDL. A.G., SH.
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2
VINOD THAKUR, SH. SHIV PAL
MANHANS, ADDL. AGS. AND SH.
YUDHBIR SINGH THAKUR, DY.
.
A.G., FOR RESPONDENT-STATE
SH. B. C. NEGI, SR. ADVOCATE
WITH MR. UDIT SHOURYA
KAUSHIK, ADVOCATE, FOR
RESPONDENTS NO. 2 AND 3.)
RESERVED ON: 25.04.2022
This Petition coming on for orders this day, the Hon'ble Mr.
Justice Tarlok Singh Chauhan, passed the following:-
ORDER
The instant petition has been filed on behalf of the practicing lawyer for the grant of following substantive reliefs:-
I. That writ of certiorari may kindly be issued, quashing the impugned letter dated 27.11.2019 issued by Himachal Pradesh Advocates Welfare Fund Trustee Committee, Bar Council of Himachal Pradesh (Annexure P-2), whereby every advocate is under legal obligation to affix welfare stamp of Rs. 25/-
instead of Rs. 10/- and the said decision has been taken by the respondent authority unilaterally without taking into confidence all the Advocates and Bar Associations of Himachal Pradesh.
ii) That writ of mandamus may kindly be issued, directing the respondents to frame rules in terms of Section 32 of the Himachal Pradesh Advocates Welfare Fund Act, 1996 to the effect that every practicing lawyer in the State of Himachal Pradesh, who is contributing towards Advocates Welfare Fund by affixing welfare stamp as per the mandate of ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 3 Section 27 of the Himachal Pradesh Advocates Welfare Fund Act, 1996, is the deemed member of .
Himachal Pradesh Advocates Welfare Fund.
Iii) That writ of mandamus may kindly be issued, directing the respondents to convey every Bar Association on ending of every financial year i.e. 31st March of each year that how much Advocates Welfare Fund is available with them, how much fund has been spent by the respondents for the welfare of the Advocates throughout the State and how much fund they have released to its members in terms of Section 18 of the Himachal Pradesh Advocates Welfare Fund Act, 1996.
2. However, during the course of hearing, Shri R. L. Chaudhary, learned Advocate, confined his plea only to relief No.
(ii), as quoted above.
3. According to the petitioner, every practicing lawyer is contributing towards the Advocates Welfare Fund by affixing welfare stamp, but the benefit thereof is being confined only to its members in terms of Section 17 of the Himachal Pradesh Advocates Welfare Fund Act, 1996 (for short the 'Act'), whereas the other members even though contributing towards the fund will not be entitled to any benefit that per se is discriminatory.
4. It is further contended that it is with a view to remove this anomaly, the Himachal Pradesh Advocates Welfare Fund Trustee Committee, Bar Council of Himachal Pradesh, ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 4 issued a letter dated 27.11.2019, requiring every Advocate to affix a stamp of Rs.25/- instead of Rs. 10/- on every Vakalatnama .
filed before any Court, Tribunal or Authority, as per the amended provisions of Sections 26 and 27 of the Advocates Welfare Fund Act, 2004.
5. It is on all these allegations that the petitioner wants that every practicing lawyer should be deemed to be a member of the Advocates Welfare Fund Act, 2004.
6. Even though the State, which has been arrayed as respondent No. 1, has filed its reply, however, we really do not find the same of any assistance for deciding the controversy in issue.
7. As regards the Himachal Pradesh Advocates Welfare Trustee Committee and the Bar Council of Himachal Pradesh, the same have been arrayed as respondents No. 2 and 3, respectively and have filed a common reply, wherein number of preliminary objections have been raised. One of such objections is that the Himachal Pradesh Advocates Welfare Fund Act, 1996 is a complete Code in itself as the same provides how the accounts/corpus is to be maintained and distributed. It is further averred that an Advocate, who is contributing towards the welfare fund by simply affixing welfare stamp cannot be a member of welfare fund, as the requirement of Section 67 of the ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 5 Act has to be fulfilled in order to become a member. It is further submitted that the fund is for the ultimate benefit of the .
Advocate or his family as per Section 18 of the Act of 1996.
We have heard learned counsel for the parties and have gone through the records of the case.
8. In order to appreciate the controversy in question, it needs to be noticed that the Government of Himachal Pradesh on 11.12.1996 has promulgated the Himachal Pradesh Advocates Welfare Fund Act, 1996, as the said Act was enacted for the welfare of the Advocates as is evident from Section 3 of the Act, which reads as under:-
3. Advocates Welfare Fund.- (1) The Government shall constitute a Fund called the Himachal Pradesh Advocates Welfare Fund.
(2) There shall be credited to the Fund
(a) an initial amount of ten thousand rupees or such other higher amount as the Bar Council may credited to this Fund at the time of its constitution;
(b) the amount paid by the Bar Council under section 13;
(c) any further contribution that may be made by the Bar Council;
(d) any voluntary donation or contribution made to the Fund by the Bar Council of India, any Bar Association, any Advocates Association or other association or institution or any advocate or other person;
(e) any sum borrowed under section 11;
(f) all sums collected under section 17;
::: Downloaded on - 28/04/2022 20:07:46 :::CIS 6(g) all sums received from the Life Insurance Corporation of India on the death of a member of the Fund under a .
Group Insurance Policy;
(h) any profit or dividend or refund received from the Life Insurance Corporation of India in respect of policies of Group Insurance of the members of the Fund;
(i) any interest or dividend or other return on any investment made of any part of the Fund; and
(j) all sums collected by way of sale of stamps under section 27.
(3) The sums specified in sub-section (2) shall be paid to, or collected by, such agencies, at such intervals and in such manner, and the accounts of Fund shall be maintained in such manner, as may be prescribed.
9. Section 27 of the Act, reads as under:-
27. Vakalatnama to bear stamps.- 1 [(1) Every Advocate shall affix a stamp of rupees ten on every Vakalatnama filed by him before any court, tribunal or authority and no court, tribunal or authority shall accept any Vakalatnama from an Advocate unless it is so stamped.
(2) The value of the stamp shall neither be costs in a case nor be collected in any event from the client.
(3) Any contravention of the provisions of sub-sections (1) and (2) by any member of the Fund shall dis-entitle him, either in whole or in part, to the benefits of the Fund 2 [and shall be deemed to be a misconduct on the part of an Advocate] and the Trustee Committee shall report such instances to the Bar Council for appropriate action.
::: Downloaded on - 28/04/2022 20:07:46 :::CIS 7(4) Every stamped affix on vakalatnama filed before any Court, Tribunal or other authority shall be cancelled in .
such manner as may be prescribed.
10. Now, the moot question is as to whether an Advocate, without becoming a member by simply contributing towards Advocates Welfare Fund by affixing welfare stamp, can be deemed to be a member of the Advocates Welfare Fund as is otherwise vehemently urged by the learned counsel for the petitioner. r
11. The answer to the same is contained in Section 17 of the Act, which reads as under:-
17. Membership of the Fund.- (1) Any advocate practicing in or before any court, tribunal or authority in the State and being a member of a Bar Association or an Advocates Association recognized by the Bar Council may apply to the Trustee Committee for admission as a member of the Fund in such form as may be prescribed.
(2) On receipt of an application under sub-section (1), the Trustee Committee shall make enquiry as it deems fit and either admit the applicant to the Fund or, for reasons to be recorded in writing, reject the application;
Provided that no order rejecting an application shall be passed unless the applicant has been given an opportunity of being heard.
(3) Every applicant shall, alongwith the application, pay, in the prescribed manner, an application fee ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 8
(i) in the case of an applicant who, on the date of application has practised for a period of less than ten .
years, rupees one hundred; and
(ii) in the case of an applicant who, on the date of application has practised for a period of ten years or more, rupees two hundred;
Provided that when an application is rejected under sub- section (2) the application fee paid by the applicant shall be refunded to him.
(4) Every member of the Fund shall pay an annual subscription to the Fund on or before the 30th June every year at the following rates, namely:-
Where the standing of the Advocate Two hundred rupees. at the Bar is less than ten years.
Where the standing of the Advocate Four hundred rupees:
at the Bar is ten years or more.
(5) Any member of the Fund who fails to pay the annual subscription for any year on or before the 1 [30th June] of that year shall be liable to be removed from the membership of the Fund.
(6) A person removed from the membership of the Fund under subsection (5) may be re-admitted to the Fund on payment of the arrears with the re-admission fee of twenty five rupees within six months from the date of removal.
(7) Every member of the Fund Shall, at the time of admission to the membership of the Fund, make nomination conferring on one or more of his dependents ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 9 the right to receive, in the event of his death, any amount payable to the member under this Act.
.
(8) If a member of the Fund nominates more than one person under sub-section (7), he shall specify in the nomination the amount or share payable to each of the nominees.
(9) A member of the Fund, may, at any time, cancel a nomination by sending a notice in writing to the Trustee Committee; provided that he shall, along with such notice, send a fresh nomination.
(10) Every member of the Fund who has requested the removal of his name from the State roll under section 26-A of the Advocates Act, 1961 (25 of 1961) or who voluntarily suspends practice shall within fifteen days of such request or suspension, intimate that fact to the Trustee Committee and if any member of the Fund fails to do so without sufficient reasons, the Trustee Committee may reduce, in accordance with such principle as may be prescribed, the amount payable to that member under this Act.
12. It would be noticed that the Himachal Pradesh Advocates Welfare Fund Act, 1996 is a complete Code in itself and Section 17 thereof clearly provides that an Advocate practicing in or before any Court, Tribunal or Authority in the State and being a member of a Bar Association or an Advocates Association recognised by the Bar Council may firstly apply to the Trustee Committee for admission as a member of the Fund in such form as may be prescribed. It is on receipt of this form that ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 10 the Trustee Committee shall make an inquiry as it deems fit and either admit the applicant to the Fund or, for reasons to be .
recorded in writing, reject the application. It is further provided that no order rejecting an application shall be passed unless the applicant has been given an opportunity of being heard.
13. Therefore, it is evidently clear from the perusal of Section 17 of the Act that an Advocate, who is practicing in or before any Court, Tribunal or Authority or who is a member of the Bar Association or an Advocates Association recognised by the Bar Council, in order to become a member of the Fund has to apply to the Trustee Committee for admission as a member, in such a form, as may be, prescribed and it is thereafter the Trustee Committee to make an inquiry as it deems fit and to either admit the applicant to the Fund or for reasons to be recorded in writing, reject the application.
14. Thus, it is clear from the perusal of Section 17 of the Act that an Advocate does not become member of the fund simply by affixing the stamp. He is required to submit an application to the Trustee Committee, who upon enquiry may admit or a reason to be recorded in writing for rejecting the application.
15. Learned counsel for the petitioner then would vehemently argue that since the provisions of the Act as now ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 11 amended make it incumbent upon the every Advocate to affix stamp of Rs. 25/- instead of Rs. 10 on every Vakalatnama filed by .
him before any Court, Tribunal or Authority, therefore, now every practicing Advocate is deemed to a member of the Fund.
16. However, again we do not find any merit in this contention for the simple reason that letter dated 27.11.2019 cannot supplement the provisions of the Act of 2007, as it is
17.
r to more than settled that an Act will prevail over the Rules, Regulations and Bye-Laws and even the executive instructions.
According to the "pure theory of law" of the eminent jurist Kelsen, in every legal system there is a hierarchy of laws, and the general principle is that if there is a conflict between a norm in a higher layer of the hierarchy and a norm in a lower level of the hierarchy, then the norm in the higher layer prevails, and the norm in the lower layer becomes ultra vires.
18. In our country this hierarchy is as follows:
(1) The Constitution of India.
(2) Statutory law, which may be either law made by the Parliament or law made by the State Legislature.
(3) Delegated legislation which may be in the form of rules, regulations etc. made under the Act.
(4) Administrative instructions which may be in the form of GOs, Circulars etc. ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 12
19. Therefore, in the event of there being a conflict .
between the Act, Rules and regulations, the Act will prevail and if there is a conflict between the Act, Rules and the regulations on the one hand and the circular or prospectus on the other hand, the Act will prevail and the later becomes ultra vires. (Refer:
Union of India and others vs. Arun Kumar Roy, AIR 1986 SC 737, Shish Ram and others vs. State of H.P. and others, (1996) 10 SCC 166 and Union of India vs. Madras Telephones Scheduled Castes and Scheduled Tribes Social Welfare Association (1997) 10 SCC 226).
20. That apart, the executive instructions cannot run contrary to the statutory provisions or whittle down their effects.
21. It is more than settled that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed or not at all. More than eighty years back, the Hon'ble Privy Council in Nazir Ahmad vs. King Emperor (AIR 1936, PC 253) held that where a power is given to do a certain thing in a certain way, the things must be done in that way or not at all and this has been approved and further expanded by the Hon'ble Supreme court in catena of judgments (Refer: Rao Shiv Bahadur Singh and anr. vs. State of Vindh-P, AIR 1954, SC 322; Deep Chand vs. State of Rajasthan, AIR 1961 SC 1527; State of Uttar Pradesh vs. ::: Downloaded on - 28/04/2022 20:07:46 :::CIS 13 Singhara Singh and Ors, AIR 1964, SC 358; Chandra Kishore Jha vs. Mahavir Prasad, 1999 (8) SCC 266 ; Dhananjaya .
Reddy vs. State of Karnataka, 2001 (4) SCC 9; State of Jharkhand & Ors vs. Ambay Cements and anr. (2005) 1 SCC 368 ; Gujarat Urja Vikas Nigam Limited vs. Essar Power Limited, 2008 (4) SCC 755 ; Zuari Cement Ltd vs. Regional Director, ESIC, Hyderabad & Ors., AIR 2015, SC 2764 ; and
22.
r to Uddar Gagan Properties Ltd. vs. Sant Singh and Ors. 2016 (5) JT 389.).
The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusion alterius" meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following some other course is not permissible.
23. Once an Advocate is required to become a member of the Welfare Fund after fulfilling and complying with the provisions as contained in Section 17 of the Act, it is then and then alone that the petitioner can be said to be a member of the Fund, which in turn will entitle to such members to the benefit under the scheme. Mere affixing of the stamps would not entitle an Advocate to the benefits flowing out of the Act, 1996.
::: Downloaded on - 28/04/2022 20:07:46 :::CIS 1424. Since, there is nothing on record to indicate that the petitioner has even applied for admission as a member of the .
Fund, the relief as claimed in the instant petition, is clearly not maintainable and accordingly the writ petition being totally misconceived is dismissed, so also pending applications, if any.
Parties are left to bear their own costs.
(Tarlok Singh Chauhan)
Judge
r (Chander Bhusan Barowalia)
28th APRIL, 2022 Judge
(sanjeev)
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