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TMI Blog1972 (12) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which the provisions of Chapters 1, 11 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 s. 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 ₹ 250/provided he fulfilled the qualifications prescribed by that sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and, subject to such rules could enrol such and so many advocates as it thought fit. The Bar- Council Act 1926 was enacted to provide for the constitution of Bar Councils and for other purposes. Sections 3 and 4 dealt with the constitution of Bar Council for every High Court. Section 8 related to admission and enrolment of advocates. That section, to the extent it is material, is reproduced below : (1) No person shall be entitled as of right to practise in any High Court unless his name is entered in roll of the advocates of the High Court maintained under this Act : Provided that nothing in this sub-section shall apply to any attorney of the High Court. (2) The High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of- (a) all persons who were, as advocates, vakils or pleaders entitled as of right to practise in (the High Court immediately before, the date on which this section comes into force in respect thereof ; and (b) all other persons who have been admitted to be advocates of the High Court under this Act: Provided that such persons shall have paid in respect of enrolment the stamp-duty, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n roll having a right to practise in any part of the country and in any Court, including the Supreme Court; (2) the integration of the bar into a single class of legal practitioners known as advocates. (3) the prescription of a uniform qualification for the admission of persons to be advocates; (4) the division of advocates into senior advocates and other advocates based on merit; (5) the creation of autonomous Bar Councils, one for the whole of India and one for each State. According to the preamble the Act was meant to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an all India Bar. Chapter H dealt with Bar Councils. There was to be a Bar Council for each State and a Bar Council of India as provided by ss. 3 and 4 respectively. Under s7. 6 the functions of the State Bar Council, inter alia, were to admit persons as advocates on its roll and to prepare and maintain such roll. Section 7 dealt with the functions of Bar Council of India. Amongst them the Bar Council of India had to prepare and maintain a common roll of advocates; to lay down standards of professional conduct and etiquette for advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e roll . Section 24 laid down the qualifications of persons who could be admitted as advocates on a State roll. These qualifications ineluded the requirement of Completion of the age of 21 years and obtaining of a degree in law or being a Barrister- etc. and Clauses-, (e) and (f) of sub-s. (1) made it obligatory that such a person should fulfill. The other conditions which might be specified in the rules made by the Bar Council and should have paid an enrolment fee of ₹ 250/- to the State Bar Council. Under S. 25 the application for admission had to be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposed to practise. Chapter V related to the right to practise. From the appointed day there was to be only one class of persons entitled to practise the profession of law, namely, advocates. Every advocate whose name was entered in a common roll was entitled as of right to practise throughout the territories to which the Act extended in all courts including the Supreme Court, before any Tribunal or person legally authorized to take evidence and appear before any other authority or person before whom such advocate was by or under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncils Act apart from other sections was repealed. In spite of the repeal of that provision it appears that in the Indian Stamp Act Art. 30 continued to be so framed as to make a provision for levy of a duty on entry as an advocate on the roll of any High Court under the Indian Bar Councils Act 1926 or in exercise of the power conferred on such court by Letters Patent or by the Legal Practitioners Act 1879. After the repeal of the relevant and material portions of these enactments relating to-admission of advocates by the Act this Article would appear to have become obsolete. But different States inserted provisions levying duty on the certificate of enrolment in the roll, of advocates prepared and maintained by the State Bar Councils under the Act. The learned single judge who heard the writ petition filed by the Bar Council of Uttar Pradesh allowed the same by a judgment dated November 12, 1963. He proceeded to consider whether the Stamp Amendment Acts which had been passed after the enactment of the Act were valid under the provisions of Article 246 of the Constitution. He was of the view that it was within the exclusive competence of the Parliament to legislate in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amp duty in respect of certain instruments which do not cover an instrument or a document with which we are concerned, namely, certificate of enrolment is-sued under s. 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 he matters in that List but not including fee taken in any court. The following Entries in List III may be reproduced : 26. Legal, medical and other professions . 44. Stamp duties other than duties or fees collected by means of judicial stamp, but not including rates of stamp duty . There is no dispute that the Act was enacted under Entries 77 and 78 in List 1. 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 practis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omprised in the main subject in which it might on an extended construction be regarded as included but is treated as a distinct matter for the purpose of legislative competence . Even under the residually power a. legislation conferred by Art. 248 the Parliament can only impose that tax which is not mentioned in either List III or List II. It has been pointed out on behalf of the respondents that the Indian Bar Council Act 1926 was passed under the provisions of the Government of India Act 1915. Under that Act the States had no power to levy tax in the nature of a stamp duty. It was possibly for that reason that a provision was made in s. 8 (2) by the Central Legislature expressly saying that the persons who were to be enrolled as advocates shall have to pay stamp duty, if any, chargeable under the Indian Stamp.Act 1899 and fee payable to the Bar Council. In the Government of India Act 1.935 there was no entry equivalent to Entries 77 and 78 of the Constitution in List 1, Entry 57 in List I of the Act of 1935 corresponded to Entry 91 in List I of the Constitution. Entry 51 in List 11 of that Act corresponded to Entry 63 in List 11 of the Constitution. Entry 13 in the Concurrent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te must pay under the pro-visions of S. 24(f) of the Act is covered by Entry 96 in List I which expressly relates to fees in respect of any of the matters in that List. The stamp duty which is payable on the certificate of enrolment pertains to the domain of taxation and it is hardly possibly to regard it as a condition which can be prescribed for enrolment under the Entries in List 1. The imposition of such a duty falls in pith and substance under Entry 44 of List III and the prescribing of rates under Entry 63 of List 11. In M. P.. V. Sundaramier Co. v. The State of Andhra Pradesh Anr.[1959] S.C.R. 1422. ), it was observed after a full examination of the scheme of Entries at page 1480 : The above analysis-and it is not exhaustive of the Entries in the Lists-leads to the inference that taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence. And this distinction is also manifest in the language of Art. 248, Clauses (1) and (2) and of Entry 97 in List I of the Constitution . In S. Ananthakrishnan Y. State of Madras(I.L.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . C.A. 1572 of 1968 dt. 17-3-1972 Kashmir. Decisions of this Court that under Art. 254(1) the question of repugnancy arises where both Parliament and the State Legislature have operated in the same field in respect of, matters enumerated in the Concurrent List were distinguished by saying that the above cases are not applicable as the language of Art. 254 as applicable to Jammu Kashmir was different. 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 leviale 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. Di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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