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

1. This appeal by special leave against a judgment of the Allahabad High Court arises out of a petition filed by the Bar Council of U. P. under Article 226 of the Constitution challenging the amendments made in Art. 30 of Schedule 1-B of the Indian Stamp Act by the U. P. Stamp (Amendment) Acts from 1962 onwards. The points which arise for determination are of some importance to the persons belonging to the legal profession.2. The Advocates Act 1961, hereinafter called the Act was enacted by the Indian Parliament and was published in the Government of India Gazette dated May 19, 1961. By a notification dated August 7, 1961 the Central Government fixed August 16, 1961, as the date on which the provisions of Chapters I, II and VII of the Act were to come into force. The Bar Council of U. P. was constituted thereafter. Another notification was issued on November 24, 1961, by the Central Government bringing into force Chapter III of the Act with immediate effect. Other Chapters were brought into force by subsequent notifications. Under Chapter III the State Bar Council and the Bar Council of India were entrusted with the task of admission and enrolment of advocates. The Bar Council of the State was required to prepare and maintain a roll of advocates as also to enter the names and addresses of those persons who were entered as advocates on the roll of advocates of the High Court under the Indian Bar Council Act 1926 immediately before the appointed date, i.e., December 1, 1961. The State Bar Council had also the duty or the obligation to enter on its roll all other persons who were admitted as advocates under the Act on or after the appointed day. Under Section 24 (1) (f) of the Act the State Bar Council was entitled to admit a person as an advocate on its roll if he paid a fee of Rs. 250/- provided he fulfilled the qualifications prescribed by that section. But by reason of the amendment of Article 30 by the U. P. Stamp Amendment Act, 1962 an additional sum of Rs. 500/- became payable as stamp duty on the entry as an advocate on the State roll of Uttar Pradesh. The next amendment was made by the State Legislature by enacting the Uttar Pradesh Taxation Laws Amendment Act, 1969 which was brought into force by a notification dated September 13, 1969, with effect from October 1, 1969. Clause 3 of Section 3 of the Amendment Act of 1969 amended Article 30 of the Act. By this amendment Stamp Duty of Rs. 500/- was payable on "Certificate of enrolment under Section 22 of the Advocates Act, 1961 issued by the State Bar Council of Uttar Pradesh". The amendment was made with retrospective effect. The latest amendment was made by the Indian Stamp (U. P. Amendment) Act 1970 in Section 11 of the Indian Stamp Act as amended in its application to U. P. For clause (c) the following clause wasof enrolment under Section 22 of the Advocates Act, 1961, issued by the State Bar Council of UttarSchedule 1-B after Article 17, Article 17-A was inserted. It was in these termsof enrolment under Section 22 of the Advocates Act, 1961, issued by the State Bar Council of Uttarstamp duty payable has been prescribed at Rs. 250/-. Article 30 was consequently omitted.3. The question which was agitated before the High Court and which has been raised before us is whether the provision made by the State Legislature for imposition of duty on the certificate of enrolment to be issued by the State Bar Council is invalid and unconstitutional in view of the provision in the Act which prescribes a fee of Rs. 250/- only for enrolment as an advocate. In order to decide this question it is essential to advert to the background in which the Act came to be enacted in 1961. The enrolment of legal practitioners as advocates of the High Court was made originally under one of the clauses of the Letters Patent in the case of Chartered High Courts in the Country. So far as the High Courts which were not established by the Royal Charter were concerned Section 41 of the Legal Practitioners Act 1879 provided that such a High Court could from time to time with the previous sanction of the Provisional Government make rules as to the qualifications and admission of proper persons to be advocates of the court and, subject to such rules of the court and, subject to such rules could enroll such and so many advocates as it thought fit.

Court's reasoning:
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  ).