Bar Council of Kerala v. T. Koshy, Bar Council of India, Union of India (WA No. 2170 of 2017 in W.P.C. 26831/2015)

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE CHIEF JUSTICE MR.ANTONY DOMINIC & HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940 WA.No. 2170 of 2017 IN WPC. 26831/2015 AGAINST THE ORDER/JUDGMENT IN WP(C) 26831/2015 of HIGH COURT OF KERALA DATED 30-11-2016 APPELLANT(S)/1ST RESPONDENT BAR COUNCIL OF KERALA, HIGH COURT BUILDINGS, ERNAKULAM, KOCHI-682031, REPRESENTED BY ITS SECRETARY. BY ADVS.SRI.P.RAVINDRAN (SR.) SRI.T.T.RAKESH RESPONDENT(S)/PETITIONER & RESPONDENTS 2 AND 3: 1. T. KOSHY, S/O.C.G.THOMAS, ADVOCATE, LAWYERS ASSOCIATES, KALYAN CHAMBERS, CHITTOOR ROAD, ERNAKULAM SOUTH, COCHIN-682016, RESIDING AT 11-B CHARUVIL, PRIYADARSHINI NAGAR, THEVARA P.O., ERNAKULAM DISTRICT, PIN-682013. 2. THE BAR COUNCIL OF INDIA, 21, ROUSE AVENUE, INSTITUTIONAL AREA, NEW DELHI-110002, REPRESENTED BY ITS SECRETARY. 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO MINISTRY OF LAW AND JUSTICE, SHASTRI BHAVAN, NEW DELHI-110001. R3 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.M.M.MONAYE R2 BY SRI.RAJIT, SC, BAR COUNCIL OF INDIA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14.02.2018, ALONG WITH W.A.1860/17 AND CONNECTED CASES, THE COURT ON 12.04.2018 DELIVERED THE FOLLOWING: ## ANTONY DOMINIC, C.J. & DAMA SESHADRI NAIDU, J. ------------------------------------------------------ W.A.Nos.2170, 1860, 2051, 2055, 2082, 2197, 2201, 2202, 2214, 2245, 2263, 2270, 2296, 2297, 2306, 2325, 2328, 2334, 2335, 2342 & 2343 of 2017 -----------------------------------------------------Dated this the 12[th] day of April, 2018 ## J U D G M E N T ## Antony Dominic, C.J. 1.These writ appeals are filed against the judgment of the learned single Judge in W.P(C).No.26831/15 and connected cases. The petitioners in the writ petitions were applicants who sought enrolment as advocates with the Bar Council of Kerala and the main challenge in the writ petitions was against the stipulation made by the Bar Council of Kerala that the applicants should pay special fee for such enrolment process, over and above the statutory enrolment fee as fixed under section 24(1)(f) of the Advocates Act, 1961. By the impugned common judgment, the learned single Judge held that the imposition of special fee is ultra vires the provisions of the Advocates Act and unauthorised and directed that those who have already paid the special WA.2170/17 & con. cases 2 fee shall be refunded the same in the manner as directed therein. It is aggrieved by this judgment, these appeals are filed by the Bar Council of Kerala. - 2.We heard the learned senior counsel for the appellant, the Bar Council of Kerala. We also heard the counsel appearing for the writ petitioners and the learned counsel appearing for the other respondents. While, according to the learned senior counsel for the appellant, the levy of special fee by the Bar Council of Kerala was as authorised under section 24(1)(e) of the Advocates Act and Rule 2(a) of the Rules framed by the Bar Council of Kerala, duly approved by the Bar Council of India vide its letter dated 19.11.2012, the contention which found favour with the learned single Judge and reiterated before us was that the enrolment fee having already been fixed by the Legislature under Section 24(1)(f) of the Advocates Act, the Bar Council of Kerala is denuded of its power for levy of any fee for enrolment of advocates. WA.2170/17 & con. cases 3 3.In essence therefore, the controversy raised in these appeals is confined to the competence of the Bar Council of Kerala to levy special fee for enrolment of advocates. While the Bar Council of Kerala attempted to trace its power to levy special fee to section 24(1)(d) of the Advocates Act and Rule 2(a) of the Rules, the contention of the writ petitioners is otherwise. The Advocates Act was enacted by the Parliament to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All India Bar. The Legislative competence of the Union of India flows from entries 77 and 78 of List I in the Seventh Schedule to the Constitution of India and this legislative competence has been recognized by the Supreme Court in **The Bar Council of Uttar Pradesh** v. **The State of U.P.** [(1973) 1 SCC 261], which has been followed thereafter in many subsequent judgments also. WA.2170/17 & con. cases 4 4.In the Advocates Act, an advocate has been defined in section 2(1)(a) as an 'advocate' entered in any roll under the provisions of the Act. The term 'roll' has been defined in section 2(1)(k) as a roll of advocates prepared and maintained under the Act. Section 3 of the Act occurring in Chapter II provides for the constitution of State Bar Councils and functions of the State Bar Councils are enumerated in section 6, among which, the first one is to admit persons as advocates on its roll. Section 17 provides that every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of all persons who are admitted to be advocates on the roll of the State Bar Council under the Act on or after the appointed day. Section 24 provides that subject to the provisions of the Act and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfills the conditions enumerated therein. The conditions which are enumerated in the sub clauses of sub clause (1) are that WA.2170/17 & con. cases 5 (a) he is a citizen of India (b) he has completed the age of twenty one years (c) he has obtained a degree in law (e) he fulfills such other conditions as may be specified in the rules made by the State Bar Council under Chapter III and (f) he has paid in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act, 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. The proviso to clause (f) is to the effect that where such person is a member of the scheduled castes or the scheduled tribes and produces a certificate to that effect from such authority as may be prescribed, the enrolment fee payable by him to the State Bar Council shall be one hundred rupees and to the Bar Council of India, twenty five rupees. - 5.Evidently, therefore, enrolment fee payable by an applicant for enrolment with a Bar Council of the State WA.2170/17 & con. cases 6 has been statutorily prescribed by the Legislature in exercise of its power under section 24(1)(f) of the Advocates Act. While the position stood occupied thus, the Bar Council of Kerala appears to have passed a resolution, resolving to introduce rule 2(a) in Chapter V of the Bar Council of Kerala Rules, relating to collection of fee from candidates at the time of enrolment. From the communication issued by the Bar Council of India, it would appear that the committee of the Bar Council of India discussed the matter relating to the amendment of Chapter V of the Bar Council of Kerala Rules and approved the same. Rule 2(a) thus introduced provided that a candidate for enrolment shall make an application in Form No.2 thereto annexed together with the receipt for payment of the application fee and other fees which the Council may decide from time to time. It is on the strength of this amendment to rule 2(a) that the Bar Council of Kerala introduced the special fee for enrolment. The amount of fee prescribed varies depending on WA.2170/17 & con. cases 7 candidates seeking enrolment after 5 years and below 10 years from the date of passing the LLB degree, candidates seeking enrolment after 10 years from passing the LLB degree, candidates who had retired from service seeking enrolment after attaining the age of superannuation whose last drawn monthly gross salary is up to Rs.60,000/-, candidates who had retired from service seeking enrolment after attaining theage of superannuation whose last drawn monthly gross salary was above Rs.60,000/-, those who had undergone course for law degree after retirement from service and those who had voluntarily retired from service/employment in India or abroad, etc. Almost on the same lines, resolutions have been passed subsequently fixing the special fee. It is this imposition of special fee which was held to be ultra vires the provisions of the Advocates Act. 6. The contention of the Bar Council is that section 24(1)(e) requires a candidate to satisfy such other conditions as WA.2170/17 & con. cases 8 may be specified by the rules made by the Bar Council under Chapter III and that under section 25(1)(d), the State Bar Council is entitled to make rules, including the conditions subject to which a person can be admitted as an advocate on any State roll. Here itself, we may notice that the fact that the Bar Council has passed the resolution and that the resolution has been approved by the Bar Council of India is of no consequence unless the resolution of the Bar Council of Kerala was within the scope of its authority as provided in the various provisions of the Advocates Act. This principle finds approval of the Apex Court in its judgment in **Bar Council of Delhi** v. **Surjeet Singh** [(1980) 4 SCC 211]. - 7.Thus the surviving question is whether the fixation of special fee is encompassed by the conditions which the Bar Council is entitled to prescribe in the rules made by it in view of section 24(1)(e) and section 28(2)(d). As we have already seen and as found by the learned single WA.2170/17 & con. cases 9 Judge, in section 24(1)(f), the Legislature itself has prescribed the enrolment fee payable by a candidate applying for enrolment with a Bar Council of a State. Once the legislature has prescribed enrolment fee, another fee, be it called a special fee or anything else, can legitimately be prescribed by a State Bar Council or any other authority only if there is an express legislative sanction therefor. In so far as section 24(1)(e) is concerned, all that it empowers the State Bar Council is to specify in the rules made by it under Chapter III of the Act the other conditions that a candidate should fulfill for enrolment. That rule making power also finds reflection in section 28(2)(d) which provides for the power of the Bar Council to make rules prescribing the conditions subject to which a person could be admitted as an advocate on its rolls. These provisions, in our view, only deal with the eligibility conditions and those conditions do not empower the Bar Council to prescribe any fee for the enrolment, either in the form of enrolment fee or special fee. WA.2170/17 & con. cases 10 Therefore, the prescription of special fee as done by the Bar Council of Kerala is totally ultra vires its powers as conferred under the Advocates Act, 1961. - 8.The aforesaid conclusion of the learned single Judge, according to us, deserves to be upheld and we do so. We do not find any merit in these appeals. They are accordingly dismissed. Sd/- ANTONY DOMINIC Chief Justice Sd/DAMA SESHADRI NAIDU Judge kkb.