Case: Bar Council Of Uttar Pradesh Vs. State Of U.P. &amp; Another

of stamp duty on a document which gives a person the privilege or the right to plead and act on behalf of the suitors was considered to fall within the taxing power of the State. It is difficult to escape the conclusion that the levy of stamp duty by means of the Stamp Amendment Acts in the State of Uttar Pradesh was not covered by any of the Entries in List I and therefore it could not be said that the State was incompetent to levy the duty and prescribe the rate under Entry 44 of List III and Entry 63 of List II in the Seventh Schedule to the Constitution. Any argument on the basis of legislative incompetence, has, therefore, to be repelled.15. A contention sought to be raised on behalf of the appellants based on the question of repugnancy can hardly be of any avail. Once it is held that the power to tax was within the competence of the State Legislature no question of repugnancy under Article 254 of the Constitution could arise. The question of repugnancy can only only arise in matters where both the Parliament and the State Legislature have legislative competence to pass laws. In other words when the legislative power is located in the Concurrent List the question of repugnancy arises; See Prem Nath Kaul v. State of Jammu and Kashmir, (1959) Supp 2 SCR 270 = (AIR 1959 SC 749 ).Moreover in the present case the provisions of cl. (2) of Article 254 of the Constitution have been complied with inasmuch as the assent of the President has been taken while enacting the impugned Amending Acts. The rule laid down in the State of Jammu and Kashmir v. M. S. Farooqui, C. A. No. 1572 of 1968, D/- 17-3-1972 = (reported in AIR 1972 SC 1738 ), which has been invoked on behalf of the appellant cannot be applied. It is true that it was laid down therein that where the Parliament had occupied the field and had given clear indication of the manner in which any disciplinary action should be taken against the members of the All India Services it was not open to the State Legislature to deal with infliction of disciplinary punishments in respect of those persons. Article 254 was applied although there was no repugnancy arising out of legislation under the Concurrent List. So far as the Constitution applicable to the State of Jammu and Kashmir was concerned at the relevant time there was no Concurrent List. It was in that situation that Article 254 was applied as it existed in respect of the State of Jammu and Kashmir. Decisions of this Court that under Article 254 (1) the question of repugnancy arises where both Parliament and the State Legislature have operated in the same filed in respect of matters enumerated in the Concurrent List were distinguished by saying that the above cases are not applicable as the language of Article 254 as applicable to Jammu and Kashmir was different.16. Lastly we may deal with the point of discrimination which has also been raised on behalf of the appellant. It is based on the provisions contained in the Act which entitle an advocate on the roll of one State Bar Council to get his name transferred to the roll of another State Bar Council without payment of any additional fee. It has been urged that if an advocate whose name is borne on the roll of the Bar Council of a State where no duty is leviable on the certificate of enrolment wishes to get his name transferred to the roll of the Bar Council of Uttar Pradesh he shall have to pay the duty prescribed by the Stamp Amendment Acts. If, however, he wishes to have his name transferred to the roll of some other State where no duty is leviable he will have to pay no duty at all. Discrimination thus is stated to arise in two ways : (1) the advocate in one State has to pay only the enrolment fee of Rs. 250/- and no more; whereas in Uttar Pradesh an advocate has to pay not only Rs. 250/- as enrolment fee but also a stamp duty as prescribed by the Stamp Amendment Acts. Secondly, in the matter of transfer also discrimination arises as has been indicated above. Such an argument can have no substance because Article 14 can have no application where the sources of authority of the Parliamentary and State legislation are different. See the State of Madhya Pradesh v. G. C. Mandawar, (1955) 1 SCR 599 = (AIR 1954 SC 493 ).17. We are certainly not happy with the result. As we look at the provisions of the Act and the entire scheme and purpose underlying it we have no doubt that it was intended to constitute one common Bar for the whole country and to provide machinery for its regulated functioning. The advocates were to have complete facilities for enrolment and practising as advocates throughout the country once they had fulfilled the conditions laid down by Section 24. But no provision having been made that apart from the enrolment fee no stamp duty would be leviable on the certificate of enrolment or that the same will be exempt from stamp duty it has been left to the State Legislature to amend the relevant schedules in the Stamp Act and impose such duties as they choose to levy on the certificate of enrolment. That has been done by the State of Uttar Pradesh and Mysore. We have not been informed about such legislation by other States. In order to achieve uniformity it is for the States to refrain from levying any stamp duty on the certificate of enrolment or the Parliament to enact proper legislation so as to do away with a feature which is certainly derogatory of the ultimate aim and goal of the Act of having a common Bar for the whole country with uniformity in all material respects.18

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]11. Now Entries 77 and 78 in List I in the Seventh Schedule to the Constitution are as followsConstitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.78. Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before High91 relates to rates of stamp duty in respect of certain instruments which do not cover an instrument or a document with which we are concerned, namely, certificate of enrolment issued under Section 22 of the Act. Entry 96 in the same list relates to fees in respect of any of the matters in the List but not including the fee taken in any Court. Entry 63 in List II relates to rates of stamp duty in respect of documents other than those specified in List I i.e. Entry 91. In the same List Entry 66 relates to fees in respect of any of the matters in that List but not including fee taken in any court. The following Entries in List III may be reproducedLegal, medical and other professions"."44. Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stampis no dispute that the Act was enacted under Entries 77 and 78 in List I. It is equally clear that the words "persons entitled to practise" would include determining or prescribing the qualifications and conditions that a person should possess and satisfy before becoming entitled to practise as an advocate before the Supreme Court or the High Courts. So far as persons entitled to practise before these 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 in List III and is made the exclusive field for Parliament".In other words the power to legislate in regard to persons entitled to practise before the Supreme Court and the High Courts is altogether excluded from Entry 26 in List III.(See O. N. Mohindroo v. The Bar Council of Delhi, (1968) 2 SCR 709   = (AIR 1968 SC 888  )).From the entries the following scheme with regard to persons entitled to practise will appear to emerge; (1) 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. Any fee which may be payable by such persons before they can claim to be entitled to practise would fall under Entry 96 of that List; (2) Entry 44 of List III enables legislation with regard to its levy but the rates of the stamp duty can be prescribed by the Parliament only with regard to instruments falling within Entry 96 of List I and by the State Legislature under Entry 63 of ListS. Ananthakrishnan v. State of Madras, ILR (1952) Mad 933 = (AIR 1952 Mad 395  ), the levy of stamp duty on a document which gives a person the privilege or the right to plead and act on behalf of the suitors was considered to fall within the taxing power of the State. It is difficult to escape the conclusion that the levy of stamp duty by means of the Stamp Amendment Acts in the State of Uttar Pradesh was not covered by any of the Entries in List I and therefore it could not be said that the State was incompetent to levy the duty and prescribe the rate under Entry 44 of List III and Entry 63 of List II in the Seventh Schedule to the Constitution. Any argument on the basis of legislative incompetence, has, therefore, to be repelled.15. A contention sought to be raised on behalf of the appellants based on the question of repugnancy can hardly be of any avail. Once it is held that the power to tax was within the competence of the State Legislature no question of repugnancy under Article 254 of the Constitution could arise. The question of repugnancy can only only arise in matters where both the Parliament and the State Legislature have legislative competence to pass laws. In other words when the legislative power is located in the Concurrent List the question of repugnancy arises; See Prem Nath Kaul v. State of Jammu and Kashmir, (1959) Supp 2 SCR 270 = (AIR 1959 SC 749  ).Moreover in the present case the provisions of cl. (2) of Article 254 of the Constitution have been complied with inasmuch as the assent of the President has been taken while enacting the impugned Amending Acts. The rule laid down in the State of Jammu and Kashmir v. M. S. Farooqui, C. A. No. 1572 of 1968, D/- 17-3-1972 = (reported in AIR 1972 SC 1738  ), which has been invoked on behalf of the appellant cannot be applied. It is true that it was laid down therein that where the Parliament had occupied the field and had given clear indication of the manner in which any disciplinary action should be taken against the members of the All India Services it was not open to the State Legislature to deal with infliction of disciplinary punishments in respect of those persons. Article 254 was applied although there was no repugnancy arising out of legislation under the Concurrent List. So far as the Constitution applicable to the State of Jammu and Kashmir was concerned at the relevant time there was no Concurrent List. It was in that situation that Article 254 was applied as it existed in respect of the State of Jammu and Kashmir. Decisions of this Court that under Article 254 (1) the question of repugnancy arises where both Parliament and the State Legislature have operated in the same filed in respect of matters enumerated in the Concurrent List were distinguished by saying that the above cases are not applicable as the language of Article 254 as applicable to Jammu and Kashmir was different.16. Lastly we may deal with the point of discrimination which has also been raised on behalf of the appellant. It is based on the provisions contained in the Act which entitle an advocate on the roll of one State Bar Council to get his name transferred to the roll of another State Bar Council without payment of any additional fee. It has been urged that if an advocate whose name is borne on the roll of the Bar Council of a State where no duty is leviable on the certificate of enrolment wishes to get his name transferred to the roll of the Bar Council of Uttar Pradesh he shall have to pay the duty prescribed by the Stamp Amendment Acts. If, however, he wishes to have his name transferred to the roll of some other State where no duty is leviable he will have to pay no duty at all. Discrimination thus is stated to arise in two ways : (1) the advocate in one State has to pay only the enrolment fee of Rs. 250/- and no more; whereas in Uttar Pradesh an advocate has to pay not only Rs. 250/- as enrolment fee but also a stamp duty as prescribed by the Stamp Amendment Acts. Secondly, in the matter of transfer also discrimination arises as has been indicated above. Such an argument can have no substance because Article 14 can have no application where the sources of authority of the Parliamentary and State legislation are different. See the State of Madhya Pradesh v. G. C. Mandawar, (1955) 1 SCR 599   = (AIR 1954 SC 493  ).