K R KURUP Vs. S T A T

JUDGEMENT

(1.) THE petitioner is O. P. 2025 of 1985, Shri. K. R. Kurup a practising advocate of this Court has been appointed as Standing Counsel for regional Transport Authorities and State Transport Authority in the State transport Appellate Tribunal for three years. After the expiry of the said term of three years on 15-7-1985 , shri. K. K. Dharmalal, Advocate who is the petitioner in O. P. 11479 of 1985 was appointed as Standing Counsel for Regional Transport Authorities and State transport Authority in the STAT for a period of two years. His term of appointment expired on 27-11-198 7 and thereafter Shri. P. Santhoshkumar, Advocate was appointed as Standing counsel for a period of two years. THE short question arising for consideration is whether the Standing Counsel is required to affix stamp under the Advocates' welfare Fund Act on the memoranda filed before the STAT.

(2.) THE petitioners in the Original Petitions took the stand before the STAT that they are not bound by law either to file a vakalath or any memo of appearance. Alternatively it is contended that the memoranda of appearances filed by the petitioners can be considered as exempted under the proviso to S. 23 (1) of the Advocates' Welfare Fund Act. THE first respondent took the stand that the petitioners are not appearing on behalf of the government and therefore they were directed to file memoranda of appearance duly stamped. This order of the STAT dated 26-2-1985 is produced as Ext. P2 in O. P. 2025 of 1985, and 10694 of 1987. THErefore there is a prayer in the said Original Petitions to quash Ext. P2 also. THE main prayer canvassed on behalf of the petitioners at the time of hearing is for a declaration that the petitioners are not bound to affix Welfare Fund Stamp on the memoranda of appearances that are to be filed by them in STAT so long as they are Standing Counsel for the State Transport authority and Regional Transport Authorities.

(3.) BUT there is an exemption given by the proviso to S. 23 of the Act which says that nothing contained in the sub-section shall apply in respect of any memorandum of appearance filed by an advocate appearing on behalf of the Government. In I. T. Commr. v. I. M. Bank Ltd. AIR 1959 SC 713 the supreme Court observed: "the proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fell within the main enactment. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. XX XX XX The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect. " Therefore the proviso to S. 23 of the Act has to be construed as an exception. Whether exception has to be construed strictly or liberally will depend upon the language of the Section and the purpose of the legislation.