JINAN. K.R., S/O.K.RAMAN, Vs. BAR COUNCIL OF KERALA, HIGH COURT BUILDINGS, ERNAKULAM, KOCHI – 682031, REPRESENTED BY ITS SECRETARY

JUDGEMENT

(1.) All these Writ Petitions (Civil) have been instituted by persons, who had initially secured enrolment with the respondent Bar Council of Kerala as per the provisions of the Advocates Act, 1961 and after obtaining employment, suspended their right to practice and after their superannuation from employment, had made applications for resumption of their legal practice, as per the provisions of the Bar Council of India (BCI) Rules. The grievance projected by these petitioners is that the power to levy fee in respect of any matter as per the provisions of the Advocates Act has been exclusively conferred on the BCI as per Section 49(1)(h) and that as per the rules made in that regard under Section 49(1)(h), the fee prescribed by the BCI for resumption is Rs. 5,000/- which is payable by the applicant concerned to the State Bar Council and Rs. 2,000/- to the BCI, thus totalling to Rs. 7,000/- only and that, in spite of this statutory prescription, the respondent Bar Council of Kerala has demanded payment of amounts much higher than Rs. 7,000/-, coming to Rs. 35,000/- to Rs. 52,000/-, in these cases and that the said stipulation made by the respondent State Bar Council is ultra vires and beyond the competence of the said State Bar Council. Most of the petitioners have secured interim orders, whereby this Court had directed that their applications for resumption of practice should be allowed provisionally, on payment of the total amount of Rs. 7,000/- as stipulated in the BCI Rules with the further rider that they will be liable to make the payment of the balance demanded by the respondent State Bar Council, in case these writ petitions are dismissed. Some of the other petitioners herein were constrained to make payments of the amounts so demanded by the respondent State Bar Council, which far exceeds the above-said amount of Rs. 7,000/- fixed by the BCI and such payment has been made subject to the final result of these writ proceedings.

(2.) The main facts in most of these Writ Petitions are broadly similar, except that some of the petitioners happened to secure employment in the judicial service as Munsiff, District Judge, etc., whereas other petitioners had secured employment in non-judicial services/employment, after their initial enrolment. The facts in some of the Writ Petitions will be dealt with hereinafter for understanding the precise nature of the controversy. For the purpose of disposal, W.P.(C). No. 35411/2015 is taken as the lead case.

(3.) The petitioner in W.P.(C).No. 35411/2015 had initially secured enrolment on the rolls of the respondent Bar Council of Kerala as per the provisions of the Advocates Act, 1961 and the rules framed thereunder on 12.12.1981 and he had also joined the Kerala Advocates' Welfare Fund on 26.10.1986. Later, he was selected and appointed to the judicial service as Munsiff on 16.1.1989, pursuant to which, he had submitted letter seeking voluntary suspension of his legal practice as per the provisions contained in BCI Rules and the said request of the petitioner to suspend his practice was accepted by the respondent State Council, as is referred to in Ext.P-3. Later, the petitioner got promotion as Sub Judge and subsequently, as District and Sessions Judge and he had superannuated from judicial service on 31.8.2015. Thereupon he had submitted Ext.P-4 resumption application dated 12.10.2015 along with the requisite affidavit as per Ext.P-5 seeking resumption of his practice in terms of the provisions contained in the BCI Rules. It is the petitioner's case that at that point of time, the respondent State Bar Council had demanded, not only the above mentioned amount of Rs. 7,000/- (Rs.5,000/- payable to the State Council + Rs. 2,000/- payable to the BCI) as resumption fee as prescribed in the amended provisions of BCI Rules, but had also demanded an additional amount of Rs. 35,000/-. The petitioner contended that the said demand of payment of fee over and above the said prescribed amount of Rs. 7,000/- is ultra vires and illegal. This Court had passed interim order dated 24.11.2015 directing the respondent State Council to allow the petitioner to resume his legal practice on payment of the same amount of Rs. 7,000/- with the further rider that in the event of the dismissal of the Writ Petition, the petitioner will have to pay the extra amount demanded over and above the said amount of Rs. 7,000/-, etc. It is pointed out that the petitioner had thereafter resumed practice after paying the above-said amount of Rs. 7,000/- as prescribed in the BCI Rules, etc.