In Re: Rupendra Pershad Saigal

This is a petition by Sri Ruprendra Pershad Saigal, B.A. LL.B, praying for his enrolment as an Advocate of the High Court of Judicature, Andhra Pradesh, without his being called upon to may additional Stamp duty.

Sri Rupendra Pershad Saigal is a B.A., LL.B. of the Osmania University. He passed the Hyderabad Bar Council Examination in August, 1956 and completed one year of apprenticeship in the office of Sri Sadasiva Rao, an Advocate practising in the Hyderabad High Court. After completing his apprenticeship he enrolled himself as a First Grade Pleader under the rules framed under the Legal Practitioners'' Act and was given a permanent sanad on a stamp paper of Rs. 300/-. Under the Hyderabad Bar Council Rules, he would have been entitled to be enrolled as an advocate of the Hyderabad High Court without paying any additional stamp duty but, by reason of the States Reorganisation Act, that High Court ceased to exist. The petitioner contends that he is entitled to be enrolled as an advocate of this High Court without paying the stamp duty of Rs. 625/-as prescribed by the Andhra Bar Council Rules.

The relevant provisions of the Bar Councils Act, and the rules made thereunder providing for the admission and enrolment of advocates may be read:

Bar Councils Act.

Section: 8:

(1) No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act:

(2) The High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of-

(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 Cl. (a) and in other cases such amount as may be prescribed.

Section 9:

(1) The Bar Council may with the previous sanction of the High Court, make rules to regulate the admission of persons to be advocates of the High Court:

Provided that such rules shall not limit or in any way affect the power of the High Court to refer admission to any person at its discretion.

Andhra Bar Council Rules.

(1) Subject to the conditions hereinafter mentioned-

XXXX

(i) Any person may be admitted as an Advocate of the High Court. Rule 19:

The Registrar shall, after the expiry of the period of notice aforesaid post the application before a Bench of the High Court of which the Chief Justice or in his absence the senior puisne Judge is a member and the High Court after considering the application and the objections thereto, if any, may admit the applicant as an advocate or refer the application to the Bar Council for its opinion or report thereon or pass such other order as it deems fit.

Indian Stamp Act.

Articls 30:

Entry as an advocate, vakil or attorney on the roll of any High Court under the Indian Bar Councils Act, 1926 or in exercise of powers conferred on such Court by Letters Patent or by the Legal Practitioners'' Act, 1884.

(a) in the case of an advocate or vakil.

Five Hundred Rupees.

Exemption:

Entry of an advocate, vakil or attorney on the roll of any High Court when he has previously been enrolled in a High Court.

By Art. 25 of the Madras Stamp Amendment Act, III of 1922, the stamp duty payable was fixed as follows:

In the case of an advocate: Six Hundred and twenty five rupees, or if previously enrolled as an attorney in the same or any other High Court three hundred and twelve rupees eight annas.

It is clear from the aforesaid provisions that a person, who seeks to be enrolled as an Advocate of the High Court of Andhra Pradesh, will have to comply with the conditions laid down in R. 1 of the Bar Council Rules and also pay the stamp duty payable under the Indian Stamp Act, 1899, unless he can call in aid the exemption in Art. 30 of the Indian Stamp Act.

Mr. Vaidya, learned Counsel for the petitioner, contends that the proviso to S. 8(2)(b) of the Indian Bar Councils Act, 1926, in so far as it fixes the stamp duty for enrolment of Advocates, is beyond the legislative competence of the Parliament and is therefore, void. To appreciate his contention, the relevant provisions of the Constitution and the items in the list given in the Seventh Schedule may be noticed Article 246:

(1) Notwithstanding anything in Cls. 2 and 3, Parliament has exclusive power to make laws with respect to any of the matters enumerated in list 1 in the Seventh Schedule (in this Constitution referred to as the Union list).

(2) Notwithstanding anything in Cl. 3, Parliament, and subject to Cl. (1), the Legislature of any State specified in Part A or Part B of the First Schedule also, have power to make laws with respect to any of the matters enumerated in List III in the seventh schedule (in this Constitution referred to as the Concurrent list).

(3) Subject to Cls. (1) and (2), the Legislature of any State specified in Part A or Part B of the First Schedule has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the State List).

List I.

Item 91:

Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts.

List II.

Item 63:

Rates of stamp duty in respect of documents other than those specified in the provisions of list I with regard to rates of stamp duty.

List III.

Item 44:

Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duty.

Article 246 deals with the distribution of legislative powers between the Union and the State Legislatures with reference to the different lists in Schedule VII. The Legislature of the State under Cl. (3) has exclusive power to made laws in respect of matters enumerated in List-II, though, in the case of over-lapping, the power of the Union Legislature prevails over that of the State Legislature. But, in this case, there is no overlapping and the aforesaid three enumerated matters in the different lists clearly indicate that the State Legislature has exclusive power to make a law in respect of stamp duty on documents other than those specified in list I. The rate of stamp duty on an application for enrolment is not one of the matters provided for in item 91 of list I and item 44 of list i.e., the concurrent list expressly excludes the rates of stamp duty from its scope. Comparative study of the three items, therefore, makes it clear that the power to make laws in respect of rates of stamp duty on matters other than those enumerated in item 91 of list I are within the exclusive power of the State Legislature. The learned Counsel, therefore, in our view, is certainly right in his contention that the Parliament has no power to make laws in respect of rates of stamp duty payable on an application for enrolment. But the question for consideration is whether the pith and substance of the Bar Councils Act is to prescribe for stamp duty.

The Indian Bar Councils Act was enacted to provide for the constitution and incorporation of Bar Councils for certain Courts in the then Provinces of India, to confer powers and impose duties on such Bar Councils and to consolidate and amend the law relating to legal practitioners entitled to practise in such courts. The Act provided for the constitution of Bar Councils, for the admission and enrolment of Advocates, for taking disciplinary action and imposing punishment on advocates for misconduct and for other incidental and necessary objects. As one of the conditions for enrolment, it was laid down that the person seeking enrolment should pay the stamp duty payable under the Indian Stamp Act. Instead of prescribing a particular fee as a condition for enrolment, the amount of fee is incorporated by reference to the Indian Stamp Act. In the circumstances, it cannot be said that Parliament purport to make a law in respect of an item beyond its legislative competence.

The pith and substance of the legislation was to prescribe a machinery for constituting Bar Councils, for enrolment of advocates and for taking proceedings for ''professional misconduct against them and the payment of stamp duty was incidental to the said object. In this view, we cannot hold that the proviso to S. 8(2)(b) was not within the legislative competence of the parliament.

It is then said that Art. 25 of the Madras Stamp Amendment Act, 1922, which prescribes a stamp duty of Rs. 625/- in the place of Rs. 500/- provided in the Indian Act has only territorial application confined to the area comprised in the composite Madras State and as that law has not been extended by the competent Legislature under S. 119 or adapted under S. 120 of the States Reorganisation Act, 1956 by the appropriate authority, the said law cannot govern the enrolment of advocates in the Telangana area.

In support of his argument, reliance is prated upon a judgment of Division Bench of this Court of which two of us were members in Satyanarayana Murty v. I. T Appellate Tribunal, S. R. No. 5200 of 1957 : ((S) AIR 1957 Andh-Pra. 123) (A). There, the question was whether on a petition under Art. 226 of the Constitution of India to quash the order of a Tribunal situated in the erstwhile Telangana area, court-fee was payable under the Andhra Court Fees and Suits Valuation Act (Act VII of 1956) or under Serial No. 1 (d) of Schedule II of the Hyderabad Court-fees Act.

After noticing the argument of the learned Counsel that, though Telangana area was integrand with the Andhra State from 1st November, 1956 the laws of that territory were preserved under the States Reorganisation Act till the competent legislature made the necessary adaptations and. modifications of the laws within one year from the appointed day and as no such adaptations have yet been made, the provisions of the Hyderabad Court Fees Act would apply to proceedings taken in the erstwhile Telangana area, the Division Bench came to the following conclusion:

The result is that the law obtaining in the State of Hyderabad before the appointed day would still govern the rights of parties in the Telangana area. The law of Court-fees obtaining before that date in the State of Hyderabad is the Hyderabad Court-fees Act and, therefore the Hyderabad Court-fees Act governs the proceedings arising out of that area.

On the analogy of this judgment, the argument proceeds that the stamp duty payable for enrolment as an advocate of the Hyderabad High Court would govern the enrolment of a person residing in the Telangana area. It is not disputed that no additional stamp was payable for enrolment as an advocate of the Hyderabad High Court by a person who had been enrolled as a First Grade Pleader by paying the stamp prescribed for that enrolment. The result of the argument is that a First Grade Pleader of the Hyderabad State is entitled to be enrolled as an advocate of the Andhra Pradesh High Court without paying any stamp duty. The argument though appears plausible, in our view, ignores the distinction between the privilege conferred on a person for being enrolled as an advocate of the High Court and the right of an affected person to question orders of Tribunals situated in the erstwhile Telangana area.

In one case, the Court confers the privilege if the person seeking the privilege complies with certain conditions, whereas, in the other case, an aggrieved person can enforce the rights vouchsafed to him under the law obtaining in the Telangana area. That a person has no right to be enrolled but only as the recipient privilege conferred by the High Court is made clear by the proviso to S. 9, which says that the rules shall not limit or, in any way, affect the power of the High Court to refuse admission to any person at its discretion.

The enrolment of an advocate in the Andhra Pradesh High Court is governed by the provisions of the Bar Councils Act and the rules framed thereunder. One of the conditions provided by S. 8 is the payment of stamp duty prescribed under the Indian Stamp Act, 1899. It is not disputed that the rate fixed under Indian Stamp Act could be amended by the State Legislature. The Stamp duty payable in respect of enrolment in the Andhra Pradesh High Court is Rs. 625/-. If the petitioner seeks the conferment of the privilege of audience in this Court, he must be bound by the conditions under which such privilege is conferred.

A Division Bench of the Madras High Court in Anantakrishnan v. State of Madras, ILR 1952 Mad 933 S. Ananthakrishnan Vs. The State of Madras, defined the Advocate''s right to represent suitors thus:

The exclusive right to represent suitors in a court which an advocate possesses is really in the nature of a privilege.

To such a privilege or the conditions subject to which that privilege is conferred, the provisions of S. 119 are not applicable but the law prescribing the conditions subject to which the right of audience is given in that Court governs the situation. Section 8 of the Bar Councils Act prescribed one of such conditions, namely, the payment of stamp duty and Art. 30 of the Indian Stamp Act as amended by the Madras Act prescribes the stamp duty. We, therefore, hold that the payment of the said stamp duty, namely Rs. 625/- is a condition precedent for the conferment of privilege on the petitioner. Therefore he cannot take the privilege and at the same time refuse to comply with the condition subject to which it is conferred.

It is then contended that the exemption under Art. 30 of the Indian Stamp Act applied to any person who has been enrolled in a High Court irrespective of the fact whether by such enrolment he had the right of audience in the High Court or not. To put it differently, the argument is that Mr. Rupendra Pershad Saigal was enrolled as a First Grade Pleader by the High Court of Hyderabad on payment of a stamp duty of Rs. 500/- and, though by reason of that enrolment he was only entitled to practise in courts other than the High Court, he was enrolled in the Hyderabad High Court within the meaning of the exemption. This argument, if we may say so, may be subtle but not sound. The exemption reads:

Entry of an advocate, vakil or attorney on the roll of any High Court when he has previously been enrolled in a High Court.

The collocation of the words clearly indicate that a person enrolled should have been enrolled as an advocate, vakil or attorney of any High Court in which case he need not pay stamp duty over again if he seeks to be enrolled in another High Court as an advocate, vakil or attorney. Further, the words "enrolled in a High Court" necessarily imply that the person enrolled had a right of audience in that court whether as a advocate, vakil or attorney. In the present case, Sri Rupendra Pershad Saigal was not enrolled as an advocate, vakil or attorney of the Hyderabad High Court and he had no right of audience in the High Court.

In support of this contention, reliance is placed on the decision of a Full Bench of the Madras High Court in In re Parthasaradi, ILR 8 Mad 14 (C). Art. 11 (a) of schedule II of the Indian Stamp Act, 1879, exempted from duty the entry of an advocate, vakil or attorney on the roll of any High Court when he had previously been enrolled in a High Court established by Royal Charter.

A Vakil on the roll of the High Court of Madras, who had already paid Rs. 500/- for that entry, applied to be entered on the roll of advocates. The Stamp duty payable was the same in respect of an advocate, vakil or attorney. The Full Bench negatived the contention that he should pay stamp duty over again. The learned Judges observed:

The tax is one which is peculiar to the profession of the law and it may be that the legislature considered it sufficient to demand from a member of the profession the payment of a single fee, whether such member was first enrolled as an attorney, or as a vakil, and then proceeded to qualify as an advocate.

It is not necessary in this case to express our view on the question whether the said decision was correct or the more reasonable view would be to read the three categories of enrolments disjunctively and give exemption only if the previous enrolment related to that category of the legal profession to which he seeks to be enrolled. That question does not really arise in the present case as Sri Rupendra Pershad Saigal was not enrolled as an advocate, vakil or attorney of the Hyderabad High Court but only as a First Grade Pleader.

We cannot leave this case without making same observations. The contentions of the Pleader are not devoid of merits. The points raised are arguable and perhaps might find acceptance with some other Judges. The Pleader along with others paid stamp duty of Rs. 500/-at the time of their enrolment as Pleaders of the Hyderabad High Court. To avoid great hardship when a change occurs such as that which occurred by reason of the States Reorganisation Act, it is but just that they should be given relief consistent with the procedure followed in similar cases in Madras and Andhra State.

The Bar Council Rules provide that any person, who having passed the pleadership examination of the Madras High Court shall be admitted as a First Grade Pleader, provided that at the time of application he has practised as such pleader for not less than ten years or any person who having passed the pleadership examination has practised as a Second Grade Pleader for not less than 15 years continuously within the State of Madras or Andhra or both or a person who having passed the Muktyarship examination in Pudukottai before its merger with the Madras State has been allowed to practise as a second grade pleader by the Madras State and whose total period of practice as Muktyar and second grade pleader amounts to not less than fifteen years, may be admitted as an advocate of the High Court.

It appears that the Government issued a notification under the Stamp Act exempting such a person from paying stamp duty to the extent already paid by him to get himself enrolled by paying the difference in the stamp duty between that payable under the statute and that already paid by him. We suggest that the same procedure may be followed in the present case by the Government issuing the necessary notification giving similar exemption to the Pleader and others'' similarly situated so that they will be enabled to enrol themselves by paying the difference between the stamp duty payable under the Stamp Act and that already paid by them i.e. Rs. 625/- minus Rs. 428-9-1 (O. S. currently Rs. 500/- converted into I. G.) i. e., Rs. 196-6-11. As many young men are waiting for enrolment, it is hoped that the Government will issue the notification as early as possible.