BAR COUNCIL OF MAHARASHTRA Vs. UNION OF INDIA

JUDGEMENT

(1.) BY means of this writ petition filed under Article 226 of the Constitution of India, the Bar Council of Maharashtra, a statutory Body of legal professionals, constituted under Advocates Act, 1961 and one of its members seek to challenge the constitutional validity of section 24 (1) (f) of the Advocates Act, 1961 and for permitting the State Bar Council to charge such annual fee as the Bar Council of India may decide from time to time in consultation with the other State Bar Councils.

(2.) IT is petitioners case that section 24 (1) (f) is otiose, obsolete and otherwise tends to restrict and curtail the fundamental right to form association and freedom of carrying out profession. According to Bar Council, the only source of finance available to it is the provision of section 24 (1) (f) according to which the Bar Council is entitled to an enrolment fee. The enrolment fee is payable once at the time of enrolment and thereafter there is no provision enabling the Bar Council to charge any fees or contributions from the Advocates. The Bar Council has given details about the annual expenditure being incurred by it and as per the said details the Bar Council, incurred total deficit of Rs. 8,44,070/- by March, 1988. The Bar Council has to conduct elections every five years, the cost of which is quite huge and also carry out several statutory duties. The averments in the petition show that basic challenge is to the fee of enrolment at Rs. 250/- or Rs. 125/- as the case may be fixed in the year 1961. The Bar Council has averred that price level has gone almost ten times from the time the Advocates Act was enacted in the year 1961. The salaries of the staff have gone up and, therefore, the enrolment fee fixed at Rs. 250/- and Rs. 125/-, as the case may be, is grossly unreasonable. The Bar Council has also sought to raise the ground that restriction upon Bar Council to recover only one time enrolment fee from the Advocate at the time of his/her enrolment is violative of Article 19 (1) (g) and Article 14 of the Constitution as Bar Council should be entitled to recover annual renewal fee or such like fee from the Advocates as is being done in the case of Chartered Accountants by the institute of Chartered Accountants.

(3.) AFTER having heard Mr. Vashi, learned Counsel for the petitioner, we are satisfied that though the object of filing of the writ petition by the Bar Council of Maharashtra and Goa and one of its members was laudable, yet in the light of legal position no relief can be granted to the petitioners in extraordinary jurisdiction under Article 226 of the Constitution of India. The Advocates Act, 1961 was enacted to amend and consolidate the law relating to legal practitioners and provide for the constitution of Bar Councils on an all India Bar. 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 Advocate Act. The Act provides for State Bar Councils, functions of State Bar Councils, Bar Council of India, functions of Bar Council of India, term of office of members of the State Bar Council. Disciplinary Committees, constitution of Legal Aid Committees, constitution of committees other than Disciplinary Committees, disqualification of members of Bar Council, staff of Bar Council, Accounts and Audits, admission and enrolment of Advocates, disqualification of enrolment, right to practise, conduct of Advocates, inter alia, other provisions concerning Advocates and Bar Councils. Chapter III of the Advocates Act deals with the admission and enrolment of Advocates thereunder. The State Bar Councils are required to prepare and maintain a roll of Advocates wherein the names and addresses of the Advocates are entered. While making a provision about the qualification of the persons who may be admitted as Advocate on State roll, one of the conditions prescribed under Clause (f) of sub-section (1) of section 24 is that such person who has applied for his admission as an Advocate must have paid an enrolment fee payable to the State Bar Council. Though initially under Clause (f) of sub-section (1) of section 24, the enrolment fee payable by the persons seeking admission to the Bar Council was fixed at Rs. 250/- by way of amendment by Act No. 70 of 1993, such enrolment fee payable to the State Bar Council has been increased from Rs. 250/- to Rs. 600/ -. It would be thus seen that Parliament had been alive to this problem and by Act No. 70 of 1993 the enrolment fee has been almost increased by more than double. We are afraid, if we accept the submission of the Bar Council that the provision of section 24 (1) (f) is unconstitutional, the net result would be that Bar Council shall not be entitled to recover enrolment fee at all. As it is, we do not find any constitutional vice in fixing the enrolment fee to the extent it has been fixed by Parliament. If the Bar Council finds that the sum of Rs. 600/- now fixed under Clause (f) of sub-section (1) of section 24 is inadequate the remedy of Bar Council lies elsewhere. The Bar Council may take up the matter with the Central Government for taking appropriate steps in the amendment of the concerned provisions. The filing the writ petition cannot be said to be proper recourse for the redressal of the grievance sought to be raised by Bar Council. Even as regards Bar Councils grievance that it should be permitted to recover renewal fee periodically from the Advocates, unless such legislation is made, the Bar Council cannot be permitted to recover such renewal fee from the Advocates. This Court while sitting in writ jurisdiction under Article 226 of the Constitution cannot make legislation and enact laws.