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2020 (3) TMI 1152 - HC - Indian LawsVires of Rules 9, 10 and 11 contained in Resolution No.73 of 2010 in Part-VI, Chapter-III of the Bar Council of India Rules - holding of the All India Bar Examination - issuance of certificate of Right to Practice - demand of fee above ₹ 750/- for purposes of enrollment - HELD THAT - Rules 9, 10 and 11 contained in Resolution No.73 of 2010 in Part-VI, Chapter-III of the Bar Council of India Rules only provide for the holding of the All India Bar Examination. It further provides that an advocate enrolled under Section 24 of the 1961 Act would be entitled to practice only after successfully clearing the All India Bar Examination conducted by the Bar Council of India. It also provides the manner in which the All India Bar Examination is held and issuance of certificate of Right to Practice within 30 days of successful passing of the said examination. As far as the challenge to the above All India Bar Examination as inserted by Resolution No.73 of 2010 is concerned, the question is already sub-judice before the Hon'ble Supreme Court to be considered by the Constitution Bench vide order dated 18th March, 2016 passed in Special Leave Petition (Civil) No.22337 of 2008 1771842 . Demand of fee above ₹ 750/- for purposes of enrollment - HELD THAT - The power to admit persons as advocates is provided under Section 24 of the Advocates Act, 1961 - The State Bar Council and the Bar Council of India are empowered to make rules under Section 28 read with Section 49 of the Act of 1961 in given circumstances. The increase in the rate of fees is properly and adequately justified. Further, even by applying the principles of harmonious construction of the provisions also, it is clear that there is no conflict between the provisions of the Act of 1961 and its Rules. The Act of 1961 provides entitlement to levy enrollment fees for enrollment as an advocate. Prescribing the right to levy fees be considered to be fundamental and it cannot be whittled by any rule. Prescribing the rate of fees is merely ancillary and can be modified by the Rules as apparent from Section 49 of the Act of 1961. The harmonious construction between the Act and the Rules which governs the field of operation of both the provisions is that the rate as mentioned in Section 24 is to be treated as bare minimum fees which is always amenable for further increase. Since the petitioner has not challenged the validity of either the provisions of Section 24 or 49 of Act of 1961 or Rules framed thereunder, both the provisions shall prevail under the law. Petition dismissed.
Issues Involved:
1. Challenge to the All India Bar Examination. 2. Demand of fee above ?750 for enrollment and issuance of Certificate of Right to Practice. 3. Vires of Rules 9 to 11 introduced by Resolution No.73 of 2010 in Part-VI, Chapter-III of the Bar Council of India Rules. Detailed Analysis: 1. Challenge to the All India Bar Examination: The petitioner challenged the All India Bar Examination (AIBE), asserting that it was beyond the competence of the Bar Council of India (BCI) and violated Sections 24 and 30 of the Advocates Act, 1961, and Articles 14, 19(1)(g), and 21 of the Constitution of India. The court noted that the matter is sub-judice before the Supreme Court, which is considering whether the BCI can prescribe an examination post-enrollment as a condition of eligibility for practicing law. The Supreme Court's order dated 18th March 2016, referred the matter to a Constitution Bench to determine the validity of pre-enrollment and post-enrollment examinations. The court refrained from delving into this issue further, acknowledging the Supreme Court's ongoing consideration. 2. Demand of Fee Above ?750 for Enrollment and Issuance of Certificate of Right to Practice: The petitioner contended that the demand for any fee above ?750 for enrollment was arbitrary and beyond the competence of the BCI and the Bar Council of Gujarat (BCG). The court examined Section 24 of the Advocates Act, 1961, which outlines the conditions for admission as an advocate, including the payment of enrollment fees. The court also reviewed Sections 28 and 49 of the Act, which empower the State Bar Councils and the BCI to make rules, including those related to fees. The court found that the BCI had the authority to increase the enrollment fees through appropriate rules published in the Official Gazette. The court held that the increase in fees was justified and within the competence of the BCI, noting that the fees support various activities for the benefit of advocates and litigants. The court concluded that the action of the BCI in increasing the fees was neither unreasonable nor ultra vires. 3. Vires of Rules 9 to 11 Introduced by Resolution No.73 of 2010 in Part-VI, Chapter-III of the Bar Council of India Rules: The petitioner challenged the legality and validity of Rules 9 to 11, which mandate the passing of the AIBE for advocates enrolled under Section 24 to practice law. The court reviewed the resolution and the rules, noting that they provide for the conduct of the AIBE and the issuance of a Certificate of Practice upon successful completion. The court reiterated that the validity of the AIBE was already under consideration by the Supreme Court. The court referred to the Supreme Court's order dated 14th December 2009, which approved the introduction of the AIBE and directed its implementation. The court concluded that since the matter was sub-judice before the Supreme Court, it would not address the challenge to the AIBE further. Conclusion: The court dismissed the petition, finding no merit in the challenges raised by the petitioner. The court upheld the authority of the BCI to increase enrollment fees and deferred to the Supreme Court's ongoing consideration of the validity of the AIBE. The petition was dismissed, and the rule was discharged.
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