Karnataka High Court
Sri. Channabasappa Lingappa Mokhashi vs Karnataka State Bar Council on 28 June, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 10.04.2024
Pronounced on : 28.06.2024
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.2156 OF 2024 (GM - RES)
BETWEEN:
SHRI CHANNABASAPPA LINGAPPA MOKHASHI
S/O LATE LINGAPPA MOKHASHI
AGED 78 YEARS,
AT NO.3138/2, WARD NO.19, S.Y.M.
SOUNDATTI YELLAMMA MUNICIPALITY
RAMAPUR SITE SAUNDATTI,
BELGAUM DISTRICT - 591 126
AADHAAR CARD BEARING NO.2608-0572-3477
MOBILE NO. 94482-30792.
... PETITIONER
(BY SRI S.V.ANGADI, ADVOCATE)
AND:
1. KARNATAKA STATE BAR COUNCIL
OLD ELECTION COMMISSION'S OFFICE,
DR.B.R.AMBEDKAR VEEDHI
BENGALURU - 560 001
BY ITS SECRETARY.
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2. THE STATE OF KARNATAKA
BY ITS SECRETARY
TO THE GOVT. DEPAT., OF LAW,
GROUND FLOOR, VIDHANA SOUDHA,
BENGALURU - 560 001
BY ITS SECRETARY.
... RESPONDENTS
(BY SRI G.NATARAJ, ADVOCATE FOR R-1;
SMT.NAVYA SHEKHAR, AGA FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENDORSEMENT / ORDER PASSED BY THE RESPONDENT COUNCIL
NO. 1 AND BEARING NO. KSBC/1481/2021, DATED 29/07/2021
(ANNEXURE-F) AS ILLEGAL, UNCONSTITUIONAL AND ULTRA-
VIRES.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 10.04.2024, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner is before this court calling in question an
endorsement/order dated 29-07-2021 passed by the 1st
respondent/Karnataka State Bar Council ('the Council' for short) by
which re-entry of the petitioner into the rolls of the Council as an
Advocate is denied.
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2. Heard Sri S.V. Angadi, learned counsel appearing for the
petitioner, Sri G. Nataraj, learned counsel appearing for respondent
No.1 and Smt. Navya Shekhar, learned Additional Government
Advocate appearing for respondent No.2.
3. Sans unnecessary details, the facts in brief, germane are
as follows:-
The petitioner enrolls as an Advocate with the then Mysore
Bar Council on 17-07-1973; continues his practice till the onset of
COVID-19. Due to onset of COVID-19, since there were restrictions,
he comes to conclude that he would not be in a position to continue
his practice. Therefore, he surrenders his 'sanad' and takes benefits
that were available to the Advocate who surrenders their sanad
from the Karnataka Advocates' Welfare Fund under the Karnataka
Advocates' Welfare Fund Act, 1983 ('the Act' for short). COVID-19
moves away. Normalcy is restored in the practice. The petitioner
on realizing that he had committed a blunder by surrendering his
sanad, submits a representation to the Council that he would wish
to resume practice. This comes to be rejected by the Council
holding that the petitioner was not entitled to resume practice as he
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has availed all the benefits of retirement and fresh enrollment
cannot be considered on several grounds. The impugned
endorsement is issued pursuant to the resolution of the Council.
The petitioner does not stop at that, but submits another
representation seeking resumption of practice and sought supply of
certified copy of the earlier resolution. After having come to know
the reason, the petitioner is before this Court in the subject writ
petition.
4. The learned counsel Sri S. V. Angadi, submits that the
petitioner had already put in 50 years of practice. He is in the
evening of his life. When the world was engulfed with COVID-19,
he decides that he may not be able to practice in future and
therefore, surrenders his sanad. After the COVID-19 effect had
deteriorated substantially he thought he could resume practice and
accordingly made an application for re-entry to the rolls of
Advocates for considering on par with the suspension of sanad.
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5. Per contra, learned counsel Sri G.Nataraj representing the
1st respondent would vehemently refute the submissions by taking
this Court through the statement of objections to contend that
resumption of practice on suspension of sanad is altogether a
different circumstance. The sanad of the petitioner, in the case at
hand, had not been suspended but the petitioner had surrendered
it. Once having surrendered his sanad he cannot practice as an
Advocate, more so, in the light of the fact that he has taken the
benefit under the Welfare Fund Act. Insofar as the judgment of the
Kerala High Court, the learned counsel would submit that it is
rendered on a different circumstance, as the Kerala Bar Council rolls
are not in pari materia with the Karnataka State Bar Council rolls.
He would seek to distinguish the said judgment.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The afore-narrated facts are not in dispute. Only issue that
falls for consideration in the case is, 'whether the petitioner should
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be permitted restoration of his sanad, which has been erased from
the rolls of Advocates, on account of an application made by the
petitioner for such erasure?'
8. The enrollment of the petitioner into the Bar Council of
Karnataka was on 17-07-1973. He held the robes for close to 50
years. On the score that he would not be able to get back to
practice due to the globe engulfed in COVID-19, files an application
before Council to withdraw the amount in the Fund that he had
deposited during his tenure. After resumption of regular Court
work, on COVID-19 subsiding, the petitioner files application on
08-02-2021, requesting the Council to permit him resume practice.
It is not acceded to solely on the score that the entitlements under
the Advocates' Welfare Fund have all been given to the petitioner
and it is the emphatic submission of the learned counsel
representing the Council that once the petitioner takes the amount
from the Fund, it would not be available for him to seek resumption
of practice on return of the Fund. Learned counsel for the 1st
respondent places reliance upon Section 15 of the Act and contends
that once benefits arising out of the Fund are paid to the Advocate
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on his application on surrendering his sanad, he cannot be taken
back to the rolls. To consider the said submission, it becomes
germane to notice certain provisions of the Act.
9. Sections 2(a), 2 (d), 2(g), 2(ga) 2(i), 3 and 15 read as
follows:-
"2. Definitions.- In this Act unless the context
otherwise requires,-
(a) "advocate" means a person whose name has been
entered in the State roll of Advocates prepared and
maintained by the Bar Council of Karnataka under section 17
of the Advocates' Act, 1961 (Central Act 25 of 1961) and
includes a legal practitioner whose rights are saved under
section 55 of the said Act and who ordinarily practices in the
State of Karnataka;
... ... ...
(d) "cessation of practice" means removal of the
name of an advocate from the roll maintained by the
Bar Council or non-renewal of Pleadership Certificate
on the ground of,-
(i) death; or
(ii) permanent disability; or
(iii) voluntary retirement due to old age of
seventy five years or on completion of
fifty years of practice whichever is
earlier.
... ... ...
(g) "member" means member of the fund;
(ga)"permanent disability" means disability incurred
by an advocate after becoming a member which
renders him totally incapable from practicing as
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an advocate and certified as such by the District
Surgeon of the District where the advocate is
practicing.
... ... ...
(i) "retirement" means stoppage of practice as
an advocate communicated to and recorded
by the 1 [Bar Council and the trustee
committee;
... ... ...
3. Advocates' Welfare Fund.- (1) The State
Government shall constitute a fund called the Karnataka
Advocates' Welfare Fund for the payment of retirement and
other benefits to the advocates and their dependents, in the
State.
(2) There shall be credited to the Fund,-
(a) xxx]
(b) any contribution made by the Bar Council;
(c) any voluntary donation or contribution made to
the Fund by the Bar Council of India, any bar association,
any other association or institution, any advocate or any
other person;
(d) any grant made by the State Government to
the Fund;
(e) the amounts set apart from the Legal Benefit
Fund constituted under section 76A of the Karnataka
Court Fees and Suits Valuation Act, 1958 (Karnataka Act
16 of 1958), for providing social security measures for the
legal profession;
(f) any sum borrowed under section 10;
(g) all sums received from the Life Insurance
Corporation of India on the death of an advocate under
the group insurance policy;
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(h) any profit or dividend 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;
(j) all sums collected by way of sale of welfare fund
stamps under section 22;
(k) amounts collected under section 15 by way of
admission fee and any other fee including late fee under
section 23A and penalty or contribution if any.
(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 the Fund shall be maintained and
operated in such manner, as may be prescribed.
... ... ...
15. Membership of the Fund.- (1) Every Advocate
on the roll of the Karnataka State Bar Council practicing
in the State of Karnataka shall be a member of the Fund
and shall file a declaration in such form along with such
admission fee as may be prescribed,-
(i) ... ...
(ii) ... ...
Provided that the Advocates other than those who have
already become Members, shall file such declarations as may be
prescribed and pay rupees one thousand within six months from
the date of coming into force of the Karnataka Advocates
Welfare Fund (Amendment) Act, 1993.
Provided further that the Advocates who have already
become members, shall pay the balance amount of rupees eight
hundred towards admission fee within six months from the date
of coming into force of the Karnataka Advocates welfare Fund
(Amendment) Act, 1996.
1A. ... ...
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(2) Every member shall furnish the particulars of place of
practice with such other details as may be prescribed.
(3) Every member who voluntarily suspends
practice or retires shall within fifteen days of such
suspension or retirement intimate that fact to the trustee
committee and if any member fails to do so without
sufficient reason the trustee committee may reduce the
amount due to that member in such manner as may be
prescribed.
(4) Every member who has completed fifteen years of
practice pay a fee of rupees two thousand to the fund and who
has not completed fifteen years of practice shall pay a fee of
rupees one thousand to the fund on or before the thirty first day
of December of every year, next after the year of becoming
member, failing which, he shall be deemed to have voluntarily
suspended practice for the purpose of this Act.
Provided that a member may pay such fee within six
months from the expiry of the due date along with a penalty of
rupees one hundred per month, in which case it shall not be
construed as deemed voluntary suspension of practice.
Provided further that a member who has completed
fifteen years of practice may, in lieu of payment of fee every
year, pay in a lumpsum rupees twenty five thousand.
Provided also that a member who has already paid a
lumpsum amount of rupees fifteen thousand before the date of
commencement of the Karnataka Advocates' Welfare Fund
(Amendment) Act, 2017 shall pay the balance amount of rupees
ten thousand within one year from the date of such
commencement or pay a sum of rupees one thousand every
year on or before thirty first day of December till the balance is
cleared failing which he shall be deemed to have voluntarily
suspended practice for the purpose of this Act.
Provided also that where a member pays balance of such
lumpsum amount within one year from the expiry of the due
date along with a penalty of rupees one hundred per month it
shall not be construed as deemed voluntary suspension of
practice.
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(5) Notwithstanding anything contained in sub-section
(4), a member who is enrolled as an advocate before attaining
an age of forty years, fails to pay fees under sub-section (4)
after attaining an age of seventy years shall be eligible to claim
benefit under sub-section (1) of sub-section 16, so however,
arrears of fee due under sub-section (4) shall be deducted in the
amount payable under sub-section (1) of sub-section 16.
(6) For every year of deemed suspension under sub-
section (4) an amount of rupees ten thousand per annum shall
be deducted from out of the amount payable under sub-section
(1) of section 16.
Provided that where a deemed suspension under sub-
section (4) is consecutively for a period of five years and more,
amount payable under sub-section (1) of section 16 shall not
exceed two lakh rupees.
(7) Notwithstanding anything contained in this Act if a
member who,-
(a) has completed fifty years of practice and paid all the arrears
to the fund; or
(b) having been enrolled as an advocate before completion of
an age of forty years has attained an age of seventy five
years, fails to pay fees and penalty, if any, under sub-
section (4) or contribution and late fee under sub-sections
(1) and (2) of section 23A he shall be eligible to claim entire
amount payable to him under sub-section (1) of section 16
without deduction of any amount towards arrears of fee and
penalty due under sub-section (4) or contribution or late fee
due under sub-section (1) and (2) of section 23A."
(Emphasis supplied)
Section 2(a) defines an Advocate. Section 2(d) defines cessation of
practice which would be removal of the name of an Advocate from
the roll maintained by the Bar Council on the ground of death,
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permanent disability or voluntary retirement on attaining the age of
75 years or on completion of 50 years of practice whichever is
earlier. Section 2(g) deals with member of the Fund. Section 2(i)
defines retirement, to mean, stoppage of practice as an advocate
communicated to and recorded by the Bar Council. Section 3 deals
with Advocates' Welfare Fund and Section 15 deals with
membership of the Fund. It directs that every Advocate on the roll
of the Karnataka State Bar Council shall become a member of the
Fund by payment of requisite fee.
10. Section 16 of the Act reads as follows:
"16. Payment from the Fund on cessation of
practice.-(1) Where the cessation of practice,-
(i) is due to death of a member, his nominee and if
there is no nominee, to his dependents or heirs as
the case may be; or
(ii) is due to reasons other than death, the member,
shall be entitled to receive an amount specified in
the schedule, from out of the fund:
Provided that the following categories of members shall
be entitled to receive an amount at the rate of ten thousand
rupees for every completed year of practice subject to a
maximum of rupees three lakhs namely:-
(i) an advocate who becomes member after attaining an
age of forty years except those who have become
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members prior to the commencement of the
Karnataka Advocates' Welfare Fund (Amendment)
Act, 2010;
(ii) an advocate enrolled after attaining an age of forty
years;
(iii) an advocate who has voluntarily suspended practice
for a period exceeding three years for the purpose of
any employment, avocation or business or for
appointment to an office of Chairperson, Vice-
Chairperson or Member of any Commission,
Corporation, Committee, Board, Body or other
authority, either statutory or non-statutory
constituted by any Central Government or any State
Government.
(iv) an advocate enrolled after retirement, dismissal or
removal from service or employment;
(v) an advocate who has become member on or after
the first day of August 2000 and has attained an age
of sixty years on the date of becoming member;
(vi) an advocate who becomes member on transfer from
other states, after attaining an age of forty years:
Provided further that an advocate who had become
member prior to the second day of April, 1997 and has failed to
pay balance fee due and has not been re-admitted to the fund
after the second day of April, 1997, shall be entitled only to an
amount at the rate of five thousand rupees for every completed
year of practice but not exceeding an amount of rupees one lakh
and this amount shall be paid to him or to his nominees, and
where there are no nominees to his dependants or heirs as the
case may be on cessation of practice.
(2) In the event of the death of a member, the amount
shall be paid to his nominee or, where there is no nominee, to
his legal dependents or heirs in accordance with the law of
inheritance applicable to such member.
(3) xxx
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(4)While calculating period of completed years of practice
for the purpose of payment under this Act,-
(i) fraction of three months and more shall be treated
as one full year; and
(ii) the period of suspension practice as a result of
misconduct under section 35 of the Advocates Act,
1961 (Central Act 25 of 1961) shall be excluded.
(4A) In case of an advocate enrolled prior to the second
day of April 1997 and admitted to the fund after the Second day
of April 2002, every four years of practice before admission as a
member to the fund shall be computed as one year of
completed year of practice and added on to the number of
completed years of practice after such admission for the
purpose of payment under this Act.
(5) XXX
(6) An application for payment from the Fund shall
be preferred to the trustee committee in such form as
may be prescribed.
Provided that if a member who has opted for
payment of fees in a lumpsum, makes an application
claiming amount specified in the schedule on account of
cessation of practice on the ground of voluntary
retirement he should have paid the entire lumpsum
amount along with penalty, if any, specified in the
second, third and fourth provisos to sub-section (4) of
section 15 before making such application or should give
a written consent for deduction of the lumpsum fee and
penalty, if any, due at the time of final settlement of the
amount.
(6A) Where applications are received from
members under sub-section (6) on account of cessation
of practice on the ground of voluntary retirement total
number of applications which may be considered for
payment under this section during a year shall be fixed
by the trustee committee having regard to its financial
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position, feasibility of future operation of the fund, need
of the applicant and other relevant factors.
(7) An application received under sub-section (6), shall be
disposed of by the trustee committee after such enquiry as it
deems necessary.
(8) If a claim made by any applicant under sub-
section (6) is found to be false or incorrect by the trustee
committee after making payment to him based on such
claim, the trustee committee may, after holding such
enquiry as it deems fit and after giving an opportunity of
being heard to the applicant, direct him to refund the
amount paid in excess of the amount due to him, and in
case of default it shall be recoverable as an arrear of land
revenue."
(Emphasis supplied)
Section 16 deals with payment from the Fund on cessation of
practice. Cessation of practice if it is due to death of the member,
his nominee and if there is no nominee his dependents would
become entitled to the Fund of certain categories. Sub-section (6)
of Section 16 directs that an application for payment from the Fund
shall be preferred to the trustee committee by a person who
intends to stop practice and the entire lumpsum amount would be
paid on the application so made. All these acts have happened in
the case at hand. The petitioner has received the amount from the
Fund in terms of Section 16 of the Act. Whether he could resume
practice by submitting an application and paying requisite fee and
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an amount to the Fund all over again is the issue that arises for
consideration in the case at hand.
11. The contention of the learned counsel for the 1st
respondent/Council is unacceptable. The petitioner has not been
removed from the rolls of the Council. He has voluntarily
surrendered his sanad on account of certain circumstances that
prevailed at that point in time. In the considered view of this Court
there should always be locus poenitentiae to those who stand on
the heels of regret for having given up their practice, if not
otherwise terminated. The return of the amount from the Fund, on
voluntary cessation of practice cannot control the right to
resumption of practice of law, which at all times he was doing. The
profession and privilege that hovers around being an Advocate
cannot be taken away by the return of the Fund. Article 19(1)(g) of
the Constitution guarantees such right to practice, but it is subject
to terms imposed by the Advocates Act, qua the practice of law.
Therefore, the receipt of the amount from the Fund of the Council,
by the petitioner, will not control the fundamental right of the
petitioner to practice; as it is trite that, a statute cannot control
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its fountain head; the Constitution of India being the
fountain head of all statutes.
12. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed.
(ii) The endorsement/order dated 29-07-2021
issued/passed by the Karnataka State Bar Council/1st respondent stands quashed.
(iii) The petitioner shall refund all the amounts that he has received from the Fund, pay requisite fee, if any, for restoration of his sanad entitling him to practice and on completion of all the formalities of restoration of his sanad, he shall be restored to practice and his name be drawn in the list of Advocates' forthwith.
Consequently, I.A.No.1 of 2024 also stands disposed.
Sd/-
(M. NAGAPRASANNA) JUDGE Bkp/CT:MJ