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The High Court held, "prescribing the rate of fees was merely ancillary and can be modified by the Rules as apparent from Section 49 of the Act of 1961".
The Gujarat High Court recently dismissed a plea filed against the Bar Council of India (BCI) and the Bar Council of Gujarat by a person whose enrolment application was rejected for his unwillingness to deposit the enrolment fee [Rajesh Manibhai Patel v. Bar Council of Gujarat].
It was the petitioner's case that the demand of any fee above the Rs. 750 mentioned in Section 24 of the Advocates Act, 1961 is arbitrary and beyond the competence of the BCI and the Bar Council of Gujarat. Therefore, the petitioner had effectively challenged the rules made to prescribe an enrolment fee higher that Rs 750.
A Division Bench of Justices Vikram Nath and Ashutosh J Shastri, however, held that the increase in fee had was properly justified given the manner in which it was introduced and how such funds were being used. Further,
The petitioner had sought a writ of Mandamus to be issued to the Bar Council of Gujarat to process his application for registration and enrolment with an enrolment fee of Rs.750 and no more.
It was further sought that a direction be issued to the BCI and the Bar Council of Gujarat to issue a Certificate of Right to Practice under Section 30 of the Advocates Act, 1961 without any delay post enrolment.
The Court observed at the outset that,
"on a careful reading of the contents of the petition, we find that some wild allegations have been made. The petitioner although claims to be a Law Graduate but apparently having no experience of drafting a petition or arguing a matter has made all kinds of careless and wild allegations of which we are not taking note of but at times, it is difficult to understand as to what the petitioner wants to contend by way of the averments contained in the pleadings filed by him."
However, the Bench was eventually able to cull out the following issues for consideration:
There is challenge to the All India Bar Examination (AIBE);
The demand of any fee above and beyond Rs.750/- for purposes of any enrolment and issue of Certificate of Right to Practice is arbitrary and cannot be made as being beyond the competence of the Bar Council of India and the Bar Council of Gujarat; and
There is also challenge to the vires of Rules 9 to 11 introduced by Resolution No.73 of 2010 in Part-VI, Chapter-III of the Bar Council of India Rules.
The Court held that as far as the challenge to the AIBE was concerned, the question was already being considered by the Supreme Court, which had referred the matter to a Constitution Bench.
While dealing with the issue over the demand of enrolment fee above Rs.750, the Bench found that the State Bar Council and the BCI were empowered to make rules under Section 28 read with Section 49 of the Advocates Act of 1961.
The Bench observed that Section 24(f) of the Advocates Act was amended by the BCI in 1973 by adding the conditions of payment of stamp duty. It was further amended in 1993 to increase the rate of enrolment fees and payment of part thereof to the BCI. This was increased by framing appropriate rules, in exercise of power under Section 49 of the Advocates Act, the Court observed.
Additionally, the Court also highlighted that 20% of the enrolment fee received by the State Bar Council was paid annually to the Welfare Fund created for the benefit of advocates.
The amount paid as enrolment fees was also used for various activities for the benefit of the advocates and the litigants by the BCI as provided under Section 7 of the Act of 1961.
In this backdrop, the Court observed that the increase in the rate of fees is properly and adequately justified. Pertinently, the Bench held that there was no conflict between the provisions of the Act of 1961 and its Rules which empowered the State Bar Council to increase the enrolment fee.
The petition was thus dismissed due to lack of merit. The Court concluded,
The petitioner appeared party-in-person, whereas the respondents were represented by Senior Advocate Mehul S Shah and Advocate Manan A Shah (for the Bar Council of India) and Advocates Kashyap Jani and RC Jani (for the Bar Council of Gujarat).
Read the Judgment here: