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BAR COUNCIL OF UTTAR PRADESH Vs. STATE OF U.P. & ANOTHER

Posted on 15 April 2009 by jyoti

Title

BAR COUNCIL OF UTTAR PRADESH Vs. STATE OF U.P. & ANOTHER



Coram

GROVER, A.N.



Act

Advocates Act



Subject

Constitution of India, 1950, Seventh Schedule, List 1,
entries 77, 78, and 96; List 11, entry 63 and List III,
entry 44-U.P. amendment to Indian Stamp Act, 1899, levying
stamp duty on certificate of enrolment granted under s. 22
of Advocates Act, 1961-If constitutionally valid.



Citation

1973 AIR 231, 1973( 2 )SCR1073, 1973( 1 )SCC 261, ,



Head Notes

Prior to 1926, the enrolment of legal practitioners as
advocates of Chartered High Courts, was under the Letters
Patent, and, in the case of other High Courts, under s. 41
of the 'Legal Practitioners Act, 1879. The Bar Councils Act
was enacted in 1926. Under s. 8 of the Act, the High Court
shall prepare and maintain a roll of advocates. A fee was
payable to the Bar Council in the case of persons entitled
as of right to practise in the High Court immediately before
the date on which the section came into force and by others
who were admitted as advocates under that Act, and, in
respect of the entry on the roll of the High Court, a stamp
duty was payable under art. 30 of the schedule to the Indian
Stamp Act 1899. [1077 D-E: 1078 F]
The Advocates Act, 1961, was enacted with the main objective
of the integration of Bar into a single class of legal
practitioners known as advocates and the prescription of
uniform qualifications for the admission of such persons to
the profession. The name of an advocate was entered in the
common roll of advocates prepared and maintained by the Bar
Council of India, which was to comprise of entries made in
all State rolls and the names of advocates, entitled as of
right to practise in the Supreme Court immediately before
the appointed day, whose names were not entered in any State
roll., Section 22 provides that a certificate of enrolment
shall be issued by the State Bar Council to the advocate
whose name is in the roll maintained by it, or by the Bar
Council of India when his name is entered in the common roll
without being entered in any State roll. Apart from
fulfilling the qualifications and the conditions laid down
by the Act and the rules framed under it, the advocate had
to pay, under s. 24 (1) (f), an enrolment fee of-Rs. 250/to
the State Bar Council. Under the Act, only that sum was
payable; and even when an advocate desires to have his name
transferred from one State roll to another he could get it
done without payment of any additional fee. The Act
repealed s. 8 of the Bar Councils Act. After the repeal of
the relevant provisions of the Bar Councils Act, and the
Legal Practitioners Act, relating to admission of advocates,
art. 30 of the Indian Stamp Act, had become obsolute, but
different States inserted provisions levying duty on the
certificate of enrolment granted under s. 22 of the
Advocates Act. By the Indian Stamp (U.P. Amendment) Act,
1970, the stamp duty payable was prescribed at Rs. 250.
[1081 C-H; 1082 A-B]
A writ petition challenging the provision made by the State
Legislature imposing stamp duty on the certificate of
enrolment to be issued by the State Bar Council as invalid
and unconstitutional in view of the provision in the
Advocates Act which prescribes a fee of Rs. 250/- only for
enrolment as an advocate, was allowed by a single Judge of
the High Court. In appeal, the Bench set aside the
judgment.
Dismissing the appeal to this Court,
HELD : (1) The levy of stamp duty by mean s of the Stamp
Amendment Act in the State of U.P. was not covered by any of
the Entries in List I and hence the State was competent to
levy the duty and prescribe the rate under Entry 44, List
III and Entry 63 of List 11 in the Seventh Schedule to the
Constitution. [1086 C]
(a)So far as the persons entitled to practise before the
Supreme Court or the High Court, the power to legislate in
regard to them was carved out from the general power in
Entry 26, List 111, relating to 'Legal, Medical and other
professionS" and is made the exclusive field 'for
Parliament, under Entries 77 and 78 in List I.. That is,
Parliament has exclusive power 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 Court. 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. [1083 D-H]
O. N. Mohindroo v. The Bar Council of Delhi & Ors. [1968]
2 S.C.R. 709, followed.
(b)Entry 44 of List III enables legislation with regard to
the levy of stamp duty but the rates of Stamp Duty can be
prescribed by Parliament only with regard to instruments
failing under Entry 91, List 1, and by the State Legislature
under Entry 63 of List 11. if the requirement of the payment
of a stamp duty on the certificate of enrolment of an
advocate is a condition precedent to the conferment on a
person of the privilege of audience and representing suitors
before the Supreme Court and the High Court, any
legislation- relating to it would be within the competence
of Parliament., If, however, it is purely a taxation measure
then it would fall in Entry 44 of the Concurrent List, in
which event, both Parliament and the State legislature would
be competent to legislate for the levy of duty, although, it
is only under Entry 63 of List II that rates can be
prescribed by the State legislature. The scheme of the
Entries in the various lists is 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 the purpose of
legislative competence. [1083 H; 1084 A-H]
(c)The scheme of the Advocates Act, to have complete
uniformity involved the question of the payment which an
advocate had to make for getting a certificate with regard
to his entry on the roll either of the State Bar Council or
the common roll of the Bar Council of India. The fee
prescribed for the purpose by the Act was Rs. 250.00. But
Parliament, while enacting this provision, made no provision
that in addition to the fee of Rs. 250/- the advocate shall
not have to pay any stamp duty which is essentially in the
nature of a tax on the certificate of enrolment to be issued
by the State Bar Council or exempting the advocate from the
payment of stamp duty on the certificate of enrolment, which
Parliament could have done under Entry 44 of List III. [1085
C-H]
(d)In the absence of any such provision the position is
that although the Advocates Act relates to legal
practitioners, in its pith and substance, it is an enactment
dealing with qualifications, enrolment, right to practise
and discipline of the advocates, coming under Entries 77 and
78 of List I. The fee of Rs. 250/- which an advocate must
pay under s. 24 (1) (f) of the Act is covered by Entry 96 in
List I which expressly relates to fees in respect of matters
in that List. But the,. stamp. duty which is payable on the
certificate of enrolment pertains to the domain of taxation
and it is hardly possible to regard it as a condition which
can be
prescribed under the entries in List I. The imposition of
such a duty falls,in pith and substance, under Entry 44 of
List III and the prescribing ofrates under Entry 63 of
list II. [1085 G-H]
M.P. V. Sundaramier & Co. v. The State of Andhra Pradesh



Judgment Made On

12/01/1972

JUDGMENT:
S. Ananthakrishnan v. State of Madras, I.L.R. 1952 Mad.
933, approved.
(2)Once it is held that power to tax was within the
competence of the State Legislature no question of
repugnancy under Art. 254 of the Constitution could arise.
A question of repugnancy can only arise in matters where
both Parliament and State Legislature have legislative
competence to pass laws, that is, when the legislative
power is located in the Concurrent List. Moreover, in the
present case, the provisions of Art. 254(2) have been
complied with inasmuch as the assent of the President had
been taken while enacting the impugned Amending Act.
[1086 D-F]
Prem Nath Kaul v. State of- Jammu & Kashmir, [1959] Supp. 2
S.C.R. 270, 300 and State of Jammu and Kashmir v. M. S.
Earooqi, C.A. 1572 of 1968 dt, 17-3-72, followed.
(3)There is no substance in the argument that the levy is
discriminatory. Discrimination was stated to arise in two
ways : (i) An advocate in one State has to pay only the
enrolment fee of Rs. 250/ and no more, whereas, in Uttar
Pradesh, he has to pay not only Rs. 250/- as enrolment fee
but also a stamp duty as prescribed by the Stamp Amendment
Act, and (ii) when 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 lie shall have to pay the duty prescribed by the
Stamp Amendment Act, while no such duty is leviable if he
wishes to have his name transferred to the roll of another
State where he will not have to pay the duty. But Art. 14
can have no application where the sources of authority of
the Parliamentary and State legislation are different. [1087
B-E]
State of Madhya Pradesh v. G. C. Mandawar, [1955] 1 S.C.R.
599 followed.
(4)In order to achieve uniformity it is for the States to
refrain from levying any stamp duty on the certificates of
enrolment or for Parliament to enact proper legislation so
as to do away with a feature which is certainly derogatory
to the ultimate aim and goal of the Act of having a common
Bar for the whole country with uniformity in all material
respects. [1087 F-H]



&
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 897 of 1971.
Appeal by special leave from the judgment and order dated
July 9, 1970 of the Allahabad High Court in Special Appeal
No. 143 of 1964.
A. K. Sen, S. V. Gupte, J. P. Goyal, A. P. 'Singh Chauhan
and S.N. Singh for the appellant.
G. N. Dikshit and O. P. Rana, for the Respondents.
17--L521SupCI/73
1076
The Judgment of the Court was delivered by
GROVER, J. 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 Art. 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 ate of some importance to the persons
belonging to the legal profession.
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 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 Rs. 250/provided he fulfilled
the qualifications prescribed by' that section. But by
reason of the amendment of Art. 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 S. 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 Uttar Pradesh". The amendment was made
with retrospective effect. The latest amendment was made by
the Indian Stamp (U.P. Amendment) Act 1970 in s. 11 1 of the
Indian Stamp Act
1077
as amended in its application to U.P. for clause (c) the
following clause was substituted :
"Certificate of enrolment under S. 22 of the
Advocates Act, 1961, issued by the State Bar
Council of Uttar Pradesh".
In Schedule 1-B after Article 17, Article 17A was inserted.
It was in -these terms
"Certificate of enrolment under s. 22 of the
Advocates Act, 1961, issued by the State Bar
Council of Uttar Pradesh".
The stamp duty payable has been prescribed at Rs. 250/-.
Article 30 was Consequently omitted.
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 s. 41 of the Legal Practitioners Act
1879 provided that such a High Court could from time to time
with the previous sanction of the Provincial Government make
rules as to the qualifications and admission of proper
persons to be advocates of the court 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 :
S.8 (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
1078
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,
chargeable under the Indian Stamp Act, 1899,
and a fee, payable to the Bar Council, which
shall be ten rupees in the case of the persons
referred to in clause (a) and in other cases
such amount as may be prescribed.
(3)
(4)
(5)The High Court shall issue a certificate
of enrolment to every person enrolled under
this section.
(6)The High Court shall send to the Bar
Council a copy of the roll as prepared under
this section and shall thereafter communicate
to the Bar Council all alterations in and
additions to, the roll as soon as the same
have been made".
Thus the position under s. 8 was that a fee of Rs. 10/'- was
payable to the Bar Council in the case of persons who were,
as advocates, vakils or pleaders entitled as of right to
practise in the High Court immediately before the date on
which s. 8 came into force as also others who were admitted
to the advocates under the said Act. In respect of the
entry on the roll of the High Court the stamp duty was
payable under Art. 30 of Schedule 1-B of the Indian Stamp
Act as amended in U.P.
Section 9 dealt with the qualifications and admission of
advocates. It was provided thereby that the Bar Council
could, with the previous sanction of the High Court, make
rules to regulate the admission of persons to be advocates
of the High Court. But such rules could not limit or in any
way affect the power of the High Court to refuse admission
to any person at its discretion. Under sub-s. (2) the rules
could provide, inter alia, for the qualifications to be
possessed by persons applying for admission as advocates and
the charging of the fee payable to the Bar Council in
respect of enrolment. Section 14 conferred a right on the
,advocates, inter alia, to practise in the High Court of
which they
1079
were advocates and appear before any other Tribunal or
person legally authorised to take evidence.
Prior to 1953 an All India Bar Committee was appointed which
made recommendations in 1953 after taking into account the
recommendation of the Law Commission on the subject of role
of judicial administration in so far as the recommendation
related to the Bar and to legal education. In the statement
of objects and reasons of the Bill which came to be enacted
as the Act the main features were stated to be as follows
(1) The establishment of an all India Bar
Council and a common roll of advocates, and
advocate on the common 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
advocates; to safeguard the rights, privileges and
interests of 'advocates etc. Chapter III dealt with
admission and enrolment of advocates. Under s. 17 the State
Bar Council was to maintain roll of advocates in which the
names and addresses had to be entered of (a) all persons who
were entered as advocates on the roll of any High Court
under the Indian Bar Council Act 1926 immediately before the
appointed day and who, within the prescribed time, expressed
an intention in the prescribed manner to practise within the
jurisdiction of the Bar Council and (b) all other persons
who were admitted to be advocates on the roll of the State
Bar Council under the Act on or after the appointed day. No
person was to be enrolled as an advocate on the roll of
1080
more than one State Bar Council. Section 18 laid down that
any person whose name was entered as an advocate on the roll
of any State Bar Council could make an application to the
Bar Council of India for the transfer of his name from the
roll of that State Council to the roll of any other State
Bar Council. On receipt of such application the Bar Council
of India was to direct that the name of such person shall,
without payment of any fee, be removed from the roll of the
first named State Bar Council and entered in the roll of the
other Bar Council and the State Bar Councils concerned were
enjoined to comply with such a direction. Under S. 19 every
State Bar Council had to send the Bar Council of India an
authenticated copy of the roll of advocates prepared by it
for the first time and thereafter communicate all'
alterations and additions etc. to any such roll. Section 20
con-. tained a similar provision making it obligatory on the
Bar Council of India to maintain a common roll of advocates
comprising the entries made in all State rolls and include
the mates of all' advocates entitled as of right to practise
in the Supreme Court immediately before the appointed day
whose names were not entered in any State roll. Section 22
was in the following terms
"Certificate of enrolment.-There shall be
issued a certificate of enrolment, in the
prescribed form-:
(i) by the State Bar Council to every person
whose name is entered in the roll of advocates
maintained by it under this Act; and
(ii)by the Bar Council of India to every
person whose name is entered in the common
roll without his name having already been,
entered in any State 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
Rs. 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 authorised
1081
to take evidence and appear before any other authority or
person before whom such advocate was by or under any law for
the time being in force entitled to practise. No person
could, after the appointed day be entitled to practise in
any court or before any authority or person unless he was
enrolled as an advocate under the Act. The High Court could
make rules laying down conditions subject to which an
advocate was to be permitted to practise in the High Court
and the courts subordinate thereto. All these provisions
were contained in Chapter IV of the Act. As provided by s.
52 nothing in the Act was to be deemed to affect the power
of the Supreme Court to make rules under Art. 145 of the
Constitution for laying down the conditions subject to which
a senior advocate was entitled to practise in that court and
for determining the persons who would be entitled to act in
that court.
It is quite apparent that the main objective of the
integration of the Bar into a single class of legal
practitioners known as advocates and the prescription of
uniform qualifications for the admission of such persons to
the profession was sought to be achieved by the provisions
of the Act. It was essential. for an advocate, if he wanted
to practise, to have his name on the common roll of
advocates which was to be prepared and maintained by the Bar
Council of India. The common roll, however, was to comprise
entries made in all State rolls and was to include the names
of advocates entitled as of right to practise in the Supreme
Court immediately before the appointed day whose names were
not entered in any State roll. If a person did not fall
within the latter class This name had to be borne on the
roll of advocates of the State Bar Council. Apart from
fulfilling the qualifications laid down by the Act and the
other conditions specified there in or by any rules framed
under its provisions the advocate had to pay an enrolment
fee of Rs. 250/- to the State Bar Council. Section 24(1),
as already stated,, contained the conditions for the
admission of an advocate on the State roll and sub-clause
(f) of sub-s. ( 1 ) constituted- one of those conditions
without the fulfilment of which a person could not be said
to satisfy the requirements of s. 24. Under the Act only
that sum or amount was payable and even when an advocate
desired to have his name transferred from one State roll- to
another he could get the same done without payment of any
additional fee: (Vide s. 18).
Now by the Act, section 8 of the Bar Councils 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
1082
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 persons entitled to practise before
the Supreme Court and the High Courts and the State
Legislatures had no such competence. As S. 8 (2) (b) of the
Indian Bar Council Act 1926 had been repealed and under $.
24 (1) (g) of the Act the Parliament had prescribed the
payment of a fee of Rs. 250/- only for enrolment by the
State Bar Council it must be assumed that the Parliament had
deliberately omitted the previous pattern in regard to the
payment of the stamp duty by the persons wishing to be
enrolled as advocates of High Court while enacting the Act.
The Act was a very comprehensive enactment and the
Parliament had dealt with every aspect of the matter
including the conditions which had to be fulfilled before a
person could be admitted as an advocate on the State roll.
As the levy of stamp duty on the certificate of enrolment
was not one of those conditions prescribed by the Act-the
State Legislature had, by levying stamp duty on such a
certificate, encroached on the legislative field of
Parliament. Principally on these grounds the learned judge
allowed the writ petition
A special appeal against the judgment of the single judge
was taken to a Division Bench. After referring to the
various entries in the three lists it was held that no
question of repugnancy arose between the Stamp Amendment
Acts and the provisions of the Act. Special notice was
taken of the omission in the Act of a provision barring the
levy of stamp duty on the certificate of enrolment or entry
on the roll relating to the admission of an advocate. It
was pointed out that no question of repugnancy could arise
under Art. 254 of the Constitution because the Stamp
Amendment Laws had received the consideration of the
President and his assent and thus the conditions laid down
by Art. 254(2) had been complied with. The appeal was
allowed and the judgment of the learned single judge was set
aside.
Now Entries 77 and 78 in List I in the Seventh Schedule to
the Constitution are as follows
1083
.lm15
"77 Constitution, organisation, jurisdiction and powers of
the Supreme Court (including contempt of such Court), and
the fees taken therein; person 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
High Courts".
Entry 91 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 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 practise before
these courts are concerned "the power to legislative 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 II. (See 6. N. Mohindroo v.- The Bar
Council of Delhi & Others(1). 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
(1) [1968] 2 S.C.R. 709.
1084
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 List II.
The main question on which the controversy has centered is
whether the levy of stamp duty on the certificate of
enrolment of an advocate is a purely taxation measure or
whether it is a part of the conditions prescribed by s. 24
of the Act which an advocate must satisfy before he becomes
entitled to practise. If the requirement of the payment of
such a duty is a condition precedent to the conferment on a
person of the privilege of audience and representing suitors
before the Supreme Court and the High Courts any legislation
relating to it would be within the competence of the
Parliament. If, however,, it is purely a taxation measure
then it would fall within Entry 44 of the Concurrent List in
which event both the Parliament and the State Legislature
would be competent to enact legislation for the levy of the
duty although it is only under Entry 63 of List II that
rates can be prescribed by the State Legislature. In other
words, the charging provisions can be enacted by both the
Parliament and the State Legislatures subject to the
provisions of Art. 254 of the Constitution. It is well
settled that the scheme of the Entries in the various Lists
is 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
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 List in the
Schedule to the 1935 Act corresponded to Entry 44 in List
III of the Constitution. Entry 16 in the Concurrent List in
the Schedule to the Act 'was "legal, medical and other
professions". It was similar to Entry 26 in List III of the
Constitution. The stamp duty was payable to the Bar Council
in Uttar Pradesh as provided by the Bar Council Act 1926
1085
under Entry 30 of U.P. Act III of 1936. After the
Constitution came into force the U.P. Stamp Amendment Act
1952 was enacted. The charging section was S. 3 under which
among others every instrument mentioned in Schedule I (A) or
1 (B) executed in Uttar Pradesh was chargeable with the duty
of the amount indicated in those schedules. When the Act
was enacted its provisions fell principally under Entries 77
and 78 in List I of the Seventh Schedule. These Entries, it
has been strenously argued on behalf of the respondents, do
not include the taxing power, which was contained in the
different Entries which have already been indicated. The
stamp duty pertains to the domain of taxation and is.
covered by Entry 63 in List 11 read with Entry 44 in, List
III.
As already noticed the entire scheme of the Act was to have
complete uniformity so far as advocates were concerned for
the whole country. This essentially involved the question
of the payment which an advocate had to make for getting a
certificate with regard to his entry on the roll either of
the, State Bar Council or the common roll of the Bar Council
of India. The fee prescribed for that purpose by the Act
was Rs. 250/-. Unfortunately the Parliament while enacting
the Act made no provision that in addition to the, fee of
Rs. 250/- the, Advocate shall not have to pay any stamp duty
which is essentially in the nature of a tax oil the
certificate of enrolment to be issued by the State Bar
Council or exempt the payment of stamp duty on the
certificate of enrolment. That could have been done under
Entry 44 of List Ill. In the absence of any such provision
the position which emerges may be stated thus. Although the
Act relates to legal practitioners, in its pith and
substance it is an enactment dealing with qualifications,
enrolment, right to practise and discipline of the
advocates. As has already been noticed the Act was held to
be covered by the latter part of Entries 77 and 78 (Vide.,
o. N. Mohindroo's case (supra). The fee of Rs. 250/- which
art advocate 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.(1), 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
(1) [1959] S.C.R. 1422.
1086
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(1) 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 suits 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 cove 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 th basis of
legislative incompetence, has, therefore, to be repelled.
A contention sought to be raised on behalf of the appellant
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 Art. 25 of the Constitution could arise.
The question of repugnancy can 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 & Kashmir(2). Moreover in the present case the pro
visions of clause (2) of Art. 254 of the Constitution have
bee complied with inasmuch as the assent of the President
has taken while enacting the impugned Amending Acts. The
laid down in the State of Jammu & Kashmir v. M. S.
Farooqi(8) 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 AR India Services it was not open to the State
Legislature to deal with infliction of disciplinary punish
ments 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 & 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
(1) I.L.R. 1952 Mad. 933.
(2) [1959] Supp. 2 S.C.R. 270, 300.
(3) C.A. 1572 of 1968 dt. 17-3-1972.
1087
& 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. 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 she matter of transfer
also discrimination arises as has been indicated above.
Such an argument can have no substance because Art. 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(1).
We are certainly not happy with the result. As we look at
the provisions of the Act and the entire scheme and purpose
underlying if 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 S. 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, States of Uttar Pradesh and Mysore. We
have not been informed about such legislation by other
States. In order to achieves uniformity it is for the
States to refrain from levying any stamp. duty on the
certificate of enrolment or the Parliament to enact,
(1) [1955] 1 S.C.R. 599.
1088
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.
We are, however, constrained to dismiss this appeal but we
make no order as to costs.
V.P.S. Appeal dismissed.
1089





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