# I 07 3 BAR COUNCIL OF UTTAR PRADESH v. STATE OF U.P. & ANOTHEP

- **Citation:** [1973] 2 S.C.R. 1073
- **Court:** Supreme Court of India
- **Decided:** 1973
- **Case number:** Civil Appeal No. 897 of 1971
- **Bench:** A. N. Grover, K. K. Mathew, A. K. Mukherjea
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-07-3-bar-council-of-uttar-pradesh-v-state-of-u-p-anothep-5762
- **Pages:** 16

## Headnote

Cvnstitutio11. of Jndia, 1950, Seventh Schedule, List /, ti.tries 77, 78,
and 96; Li.rt //, e111ry 63 and List Ill, emry 44--U.P. amendment to
Indian Stamp Act, 1899, levying stanzp duty on certificate of enrubnertt
granted under s. 22 of Advocates Act, 1961-1/ constitutionally valid.
Prior '" 1926, the enrolment of legal practitioners as advocat<s of
Ch<>rtered High Courts, was under the Letters Patent, and, in the case
of other High Courts, under s. 41 of the Legal Practitioners Act, 1879.
The Bar Councils Act was enacted in 1926.
Under s. 8 of the Act,
the High Court shall prepare and maintain a roll of advocates.
A fee
was payable to the B&r Council in the case of persons entitled as of right
to practise in the High Coun immediately before the <late on which
the
section came into force and by others who were admitted as advocates
under that Act, and, in respect of the entry on the roll of the High
Court, a stamp duty was payable under art. 30 of the schedule to the
Indian Stamp Act 1899. [1077 D-E; 1078 F]
The Advocates Act, 1961, was enacted with the main objective of
the integration of 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.
The name of an advocate was.-
entered in the common roll of advocates prepared and maintained by
the Bar Council of India, which was to comprise of entries made in all
State rolls and the names ol advocates, entitled as of right to practise
in the Supreme Court immediately before the appointed day, whose
names were n0t entered in any State roll.
Section 22 p:ovides that a
cenificate of enrolment shall be issued by the State Bar Council to the
advocate whose name is in the roll maintained by it, or by the Bar Council of Indiai when his name is entered in the Common roll without being
entered in any State roll.
Apart from fulfilling the qualifications and
the conditior.s Ia.id down by the Act and the rules frarr,~d under it, the
advocate had to pay, under s. 24 (P (f), an enrolment fee of Rs. 250/-
to the State Bar Council.
Under t~e Act, only that sum was payable;
and even when an advocate desires to have his name ~ransferred from
one State roll to another he could get it done without payment of any
additional fee.
The Act repealed s. 8 of the llar Councils Act.
After
the repeal of the relevant provisions of the Bar Councils Act, ""d the
Legal Practitioners Act, relating to admission di advocates, art. 30 of
the Indian Stamp Act, had become obsolute, but different States inserted
provisions levying duty on the certific~te of enrolment granted under s. 22
of the Advocates Act.
By the Indian Stamp (U.P. Amendment) Act.
1970, the stamp duty payable was prescribed
at Rs. 250.
[108! C-H:
1082 A-BJ
.
A writ i:>etition challenging the provision
made by the SMe Legislature imposing stamp duty no the certificate of enrolment to be issued bv
the State Bar Council as invalid and unconstitutional in view of the provisi9n in tho Advocates Act which prescribes a fee of Rs. 250 /- only for
enrolment as an advocate, was allowed. by a single Judge of th H' h
Court. In appeal, the Bench set aside the judgment.
e
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Dismissing the appeal to this C-Ourt,
1014
SUPREME COURT REPORTS
[1973] 2 S.C.R,
HELD : (l l The levy of sir.mp duty by mean_s of the Stamp Ame~d
ment Act in the State of U.P. was not covered" by any of t~ EntnC$
in List I and hence the State was competent to levy the duty and presscribe the rate under Entry 44, List m· lino ·Entry 63 of List II in the
Seventh Schedule to the Constitution. [1086 CJ
(a) So far as the persons entitled to practise before the Supreme
Court or the High Court, the power to legislate in regard to them wa.s
carved out from the general power in Entry 26, List JII. relating to
'Legal, Medical and other. professions', ~~d is_ made the ~xclusiv~ field
'for Parliament, under Entries 77 and 78 m Lost I. That IS, Parha.rnent
has exclusive power to prescribe, inter

## Text

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I 07 3
BAR COUNCIL OF UTTAR PRADESH
v.
STATE OF U.P. & ANOTHEP.
December I, 1972
[A. N. GROVER, K. K. MATHEW AND A. K.
MUKHERJEA, JJ.J
Cvnstitutio11. of Jndia, 1950, Seventh Schedule, List /, ti.tries 77, 78,
and 96; Li.rt //, e111ry 63 and List Ill, emry 44--U.P. amendment to
Indian Stamp Act, 1899, levying stanzp duty on certificate of enrubnertt
granted under s. 22 of Advocates Act, 1961-1/ constitutionally valid.
Prior '" 1926, the enrolment of legal practitioners as advocat<s of
Ch<>rtered High Courts, was under the Letters Patent, and, in the case
of other High Courts, under s. 41 of the Legal Practitioners Act, 1879.
The Bar Councils Act was enacted in 1926.
Under s. 8 of the Act,
the High Court shall prepare and maintain a roll of advocates.
A fee
was payable to the B&r Council in the case of persons entitled as of right
to practise in the High Coun immediately before the <late on which
the
section came into force and by others who were admitted as advocates
under that Act, and, in respect of the entry on the roll of the High
Court, a stamp duty was payable under art. 30 of the schedule to the
Indian Stamp Act 1899. [1077 D-E; 1078 F]
The Advocates Act, 1961, was enacted with the main objective of
the integration of 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.
The name of an advocate was.-
entered in the common roll of advocates prepared and maintained by
the Bar Council of India, which was to comprise of entries made in all
State rolls and the names ol advocates, entitled as of right to practise
in the Supreme Court immediately before the appointed day, whose
names were n0t entered in any State roll.
Section 22 p:ovides that a
cenificate of enrolment shall be issued by the State Bar Council to the
advocate whose name is in the roll maintained by it, or by the Bar Council of Indiai when his name is entered in the Common roll without being
entered in any State roll.
Apart from fulfilling the qualifications and
the conditior.s Ia.id down by the Act and the rules frarr,~d under it, the
advocate had to pay, under s. 24 (P (f), an enrolment fee of Rs. 250/-
to the State Bar Council.
Under t~e Act, only that sum was payable;
and even when an advocate desires to have his name ~ransferred from
one State roll to another he could get it done without payment of any
additional fee.
The Act repealed s. 8 of the llar Councils Act.
After
the repeal of the relevant provisions of the Bar Councils Act, ""d the
Legal Practitioners Act, relating to admission di advocates, art. 30 of
the Indian Stamp Act, had become obsolute, but different States inserted
provisions levying duty on the certific~te of enrolment granted under s. 22
of the Advocates Act.
By the Indian Stamp (U.P. Amendment) Act.
1970, the stamp duty payable was prescribed
at Rs. 250.
[108! C-H:
1082 A-BJ
.
A writ i:>etition challenging the provision
made by the SMe Legislature imposing stamp duty no the certificate of enrolment to be issued bv
the State Bar Council as invalid and unconstitutional in view of the provisi9n in tho Advocates Act which prescribes a fee of Rs. 250 /- only for
enrolment as an advocate, was allowed. by a single Judge of th H' h
Court. In appeal, the Bench set aside the judgment.
e
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Dismissing the appeal to this C-Ourt,
1014
SUPREME COURT REPORTS
[1973] 2 S.C.R,
HELD : (l l The levy of sir.mp duty by mean_s of the Stamp Ame~d
ment Act in the State of U.P. was not covered" by any of t~ EntnC$
in List I and hence the State was competent to levy the duty and presscribe the rate under Entry 44, List m· lino ·Entry 63 of List II in the
Seventh Schedule to the Constitution. [1086 CJ
(a) So far as the persons entitled to practise before the Supreme
Court or the High Court, the power to legislate in regard to them wa.s
carved out from the general power in Entry 26, List JII. relating to
'Legal, Medical and other. professions', ~~d is_ made the ~xclusiv~ field
'for Parliament, under Entries 77 and 78 m Lost I. That IS, Parha.rnent
has exclusive power to prescribe, inter a/ia, the qualifications and conditions on the fulfilment of which persons would be entitled to practise
before the Supreme Court or the High Court.
Any fee which may be
payable b\' such persons before they c;;n claim to be entitled to practise
would falf under Entry 96 of that List. [1083 D·H]
O. N. ,\folzindroo v.
Tlze Bar Council of Delhi & Ors., [1968] 2
S.C.R. 709, followed.
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(b) Entrv 44 of List II! enables legislation with regard to the levy
of stamp duty but the rates of Stamp Duty can be prescribed by Parliament only with regM'd to instruments falling under Entry 91, List I, and
by the. State Legislature under Entry 63 of List II.
If the requirement
I>
of the payment of a stamp duty on the certificate d( enrolment of an
advocate is a condition precedent to the conferment on a person of the
privilege of audience and representing suitors before the Supreme Court
and the High Court, any legislation relatin·g fo it would be within the
competence of Parliament.. If, however, it is purely a taxation measure
then it would fall in Entry 44 of the Concurrent List, ·in which event,
both Parliament and the State legislature would be competent to legislate for the levy of duty, "!though, it is only under Entry 63 of List II
E
that rates can be prescribed by the State legislature. The scheme of the
Entries in the l'arious lists is that taxation is not intended to be comprised in the main subject in which it might, on
an extended construction, be regarded as included but is tre~ted as a distinct matter for the
purpose of legislative competence. [1083 H; 1084 A-HJ
( c) The scheme of the Advocates Act to have complete uni'formity
involved the question of the payment which an advocate had to make
y.
for getting a certificate with regard to his entry on the roll either of the
Stz.te Bar Council or the common roll of the Bar Council of India. The
fee prescribed for the purpose by the Act was Rs. 250.00.
But Parliament, while enacting this provis:on, made no provision that in addition
to the fee of Rs. 250/- the advocate shall not have to pay any st•mp
duty which is essenti21lly in the nature of a tax on the certificate of en.
rolment to be issued by the State Bar Council or exempting the advocate
from the payment of stamp duty on the certificate of enrolment, which
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Parliament could· have done under Entry 44 of List lll. /I 085 C-H]
(d) In the absence of any such provision the position is that although
the Advocates Act relates to legal prnctitioners, in its pith and substance,
it is an enactment dealing with qualifications, enrolment, right to Practise and discipline df the advocates, coming under Entrie_s 77 and 78 of
List I. The fee of Rs. 250/- which an advocate must pay under s. 24
(1 )(f) of the Act is covered by Entry 96 in List I which expressly relates
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to fees in respect of matters in that List.
But the sta111p duty which is
payable on the certificate of enrolment pertains to the domain of taxation and it is hardly possible to regard it as a condition which can be
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BAR COUNCIL U.P. V. U.P. STATE
1075
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prescribed under the entries in List I.
The imposition· of such a duty
fa'ls, in pith and substance, under Entry 44 of List III and the prescribing of rates under Entry 63 of List n. [1085 G-HJ
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M. P. V. Sundaramier & Co. v. The State of Andhra Pradesh & A.nr.
(1959) S.C.R. 1422, followed.
S. Ananthakrishnan v. Stale of Madras, I.L.R. 1952 Mad. 933, approved.
(2) Once it is held .that power to tax was within the competence of
the Sta.le Legislature no question of repugnancy under Art. 254 of the
Constitution could arise.
A question of repugnancy can only arise in
matters where both Parliament and State Legislature have legislative
competence to pass Jaws, that is, when the legislative power is located
in the Concurrent List.
Moreover, in the present Cll6e, the provisions
of Art. 2S4(2) have been complied with inasmuch as the assent of the
President had been taken while enacting the impugned Amending Act.
[1086 D-FJ
Prem Nath Kaul v. State. of Jammu & Kashmir, (1959] Supp. 2 S.C.R.
270, 300 and State of Jammu and Kashmir v. M. S. Earooql, C.A. 1572
of.1968 dt. 17-3-72, followed.
(3) There is no substance in the argument that the levy is discriminatory. Discrimination was stated to arise .in two ways : (i) An adVoc&te
in one State ha.s to pay only the enrolment fee of Rs. 250 / and no
more, whereas, in Uttar Pradesh, be has to pay not only Rs. 250/- as
enrolment fee but also a stamp duty as prescribed by the Stamp Amendment Act, and (ii) when an advocate whose name is borne on the roll
of the Bar Council of a State, where no duty is leviable on the certificate
of enrolment, wishes to get his name transferred to the roll of the Bar
Council of Uttar Pradesh
he
ohall
have to pay the duty prescribed
by the Stamp Amendmont Act, while no such duty· is leviable if be
wishes to have bis name transferred to the roll of another State where
he wilt' not have to pay the duty.
But Art. 14 can have no application
where the sources of authority of the 'Parliamentary and State legislation
arc different. [1087 B-E]
State of Madhya Pradesh v. G. C. Mandawar, (1955) 1 S.C.R. 599
followed.
( 4) In order to achieve uniformity it is for the St~tes to refrain from
levying any stamp duty on the certificates of enrolment or for Parliament
to enact proper legislation so as to do away with i~feature which is certainly derogatory to the ultimate aim a.nd goal of the Act of having a
common Bar for the whole
country with uniformity in
all material
respects. [ 1087 F-H]
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 897
of 1971.
Appeal by special leave from the judgment and order dated
July 9, 1970 of the Allahabad High Court in Special Appeal
No. 143 of 1964.
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A. K. Sen, S. V. Gupte, J.P. Goyal, A. P. Singh Chauhan
and S. N. Singh for the appellant.
G. N. Dikshit and 0. P. Rana, for the Respondents.
17-LS21SupCI/73
1016
SUPREME COURT REPORTS
(1973] 2 S.C.R,
The Judgment of the Court was delivered by
GROVER, J.
This appeal by special leave ag~~nst a judgment
of the Allahabad High Court arises out of a peUtlon filed by the
Bar Council of U.P. under Art. 226 of the Constitution challenging the amendments made in Art. 30 of Schedule 1-B of the Indian
Stamp Act by the U.P. Stamp (Amendment) Acts from 1962 on·
wards.
The points which arise for detennination are .of some
importance to the persons belonging to the legal profession.
The Advocates Act 1961, hereinafter called 'the 'Act' was
enacted by the Indian Parliament and was published in the Gov·
ernment of India Gazet~ dated May 19, 1961.
By a notification
dated August 7, 1961 the Central Government fixed August 16,
1961 as the date on which the provisions of Chapters I, II and
VII of the Act were to come into force.
The Bar Council of
U.P. was constituted thereafter.
Another notification was issued
on November 24, 1961 by the Central Government bringing into
force Chapter III of the Act with immediate effect.
Other Chapters wi:re brought into force by subsequent notifications.
Under
Chapter III the State Bar Council and the Bar Council of India
were entrusted with the task of admission and enrolment of advocates.
The Bar Council of the State was required to prepare and
maintain a roll of advocates as also to enter the names and
addresses of those persons who were entered as advocates on the
roll of Advocates of the High Court under the Indian Bar Council
Act 1926 immediately before the appointed date, i.e. December 1,
1961.
The State Bar Council had also the duty or the obligation
to enter on its roll alJ other persons who were admitted as advocates under the Act on or after the appoicted day.
Under s. ·
-24 (1 )( f) Di the Act the State Bar Council was entitled «> admit
a person as -an advocate on its roll if he paid a fee of Rs. 250/-
provided he fulfilled the qualificatipns prescribed by that section.
But by reason of the amendment otArt. 30 by the U.P. Stamp
Amendment Act 1962 an additional sum of Rs. 500/-
became
payable as stamp duty on the entry as an advocate on the State
roll of Uttar Pradesh.
The next amendment was made by the
State Legishrture by enacting the Uttar Pradesh Taxation Laws
Amo~ndment Act 1969 which was brought into force by a notification dated September 13, 1969 with effect from
October
1,
1969.
Clause 3 of s. 3 of the Amendment Act of 1969 amended Article 30 of the Act. By this amendment stamp duty of
Rs. 500/- was payable on "Certificate of enrolment under section
22 of the Advocates Act 1961 issued by the State Bar Council of
Uttllr Pradesh".
The amendment was made with retrospective
effeyt.
The latest amendment was made by the Indian Stamp
(U.P. Amendment) Act 1970 in s. 11 of the Indian Stamp Act
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BAR COUNCIL U.P. V. U.P, STATE (Grover, J.)
1077
as amended in its application to U .P. for clause ( c) the following
clause was substituted :
"Certificate of enrolment under s. 22 of the Advocates Act, 1961, issued by the State Bar Council of
Uttar Pradesh".
In Schedule l·B after Article 17, Article 17A was inserted. It
was in these terms :
"Certificate of enrolment urlder s. 22 of the Advo·
cates Act, 1961, issued by the State Bar Council of
Uttar Pradesh".
The stamp duty payable has been prescribed at Rs. 250/ •·
Arti·
cle 30 was <:Q!ISequently omitted.
The question which was agitated before 1the High Court and
which has been raised oofore us is whether the provision made by
the State Legislature for imposition of duty on the certificate of
enrolment to be issued by the State Bar Council is invalid and
unconstitutional in view of the provision in the Act which pres·
cribes a fee of Rs. 250/- only for enrolment as an advocate.
In
order to decide this question it is essential to advert to the background in which the Act came to be enacted in 1961. The enrolment ()f legal practitioners as advocates ·of the High Court was
made originally under one of the clauses of the Letters Patent in
the case of Chartered High Courts in the country. So far as the
High Courts which were not established by the Royal Charter
were concerned s. 4i of the LegaJ..Practitioners Act 1879 provided that such a High Court could from time to time with the previous sanction of the Provincial Government make rules as to the
qualifications and admission of proper persons to be advocates of
the court and, subject to such rules could enrol such and so many
acivocates as it thought fit.
The BaL Council Act 1926 was enacted to provide for the
constitution of Bar Councils and for other purposes.
Sections 3
and 4 dealt with the constitution of Bar Council for every High
Court.
Seclion 8 related to adniission and enrolment of advocates.
That section, to the extent it is material,
is reproduced
below:
S. 8 (l) "No person shall be entitleil as of right to
practise in any High Court unless his name is entered in
roll of the advocates of the High - Court maintained
under ·this Act :
Provided that nothing in this sub-section shall apply
to any attorney of the High Court.
(2) The High Court shall prl'pare and maintain a
·y··.·.·
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1078
SUPREME COURT REPORTS
[1973] 2 S.C.R,
roll ~f advocates of 'the High Court in which shall be .
entered the names of-
( a) all persons who were, as advocates, vakils or
pleaders entitled as of right to practise in the
High Court immediately before the
date
on
which this section comes into force in respect
thereof; and
( b) all other persons who have been admitted to be
advocates of the High Court under this Act:
B
Provided that such persons shall have paid in res-
~
pect of enrolment the stamp-duty, if any,
chargeable
under the Indian Stamp Act, 1899, and a fee, payable
c
to the Bar Council, which shall be ten rupees in the
case of the persons referred to in clause (a)
and in
other cases such amount as may be prescribed.
(3) ....................
(4) ......... .
( 5) The High Court shall issue
a certificate
of
enrolment to every person enrolled under this secti?n.
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( 6) The High Court shall send to the Bar Council
1
a copy of the roll as prepared under this section and
shall 1thereafter communicate to the Bar Council
all
alterations in and additions to, the roll as soon as the
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same have been made".
Thus the position under s. 8 was that a fue of Rs. I 0/- was payable to the Bar Council in the case of persons who were, as advocates, vakils or pleaders entitled as of right to practise in the High
Court immediately before the date on which s. 8 came into force
ns also others who were admitted to the advocates under the said
F
Act.
In respect of the entry on the roll of the High Court the
stamp duty was payable under Art. 30 of Schedule 1-B of the
r
Indian Stamp Act as amended in U.P.
Section 9 dealt with the qualifications and admission of advocates.
It was provided thereby that the Bar Council could, with
the previous sanction of the High Court. make rules to regulate
the admission of Jl..~rsons to be advocates of the High Court.
But
such rules could not limit or· in any way affect the power of the
High Court to refuse admission to any person, at its discretion.
Under sub-s. (2) the rules could provide. inter a/ia, for the qualifications to be possessed by persons applying for
admission as
advocates anq the char.ging of the fee payable to the Bar Council
in respect of enrolment.
Section 14 conferred a right on the
advocates. inter a/ia, to practise in the High Court of which they
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BAR COUNCIL U.P. v. U.P. STATE (Grover, J.)
1079
were. advoc~tes and appear before any other Tribunal or person
legally autho.rised to take evidence.
.
·
Prior to 1953 an All India Bar Conimittee was
appointed
which m:ade recommendations in 1953 after taking into account
the recommendation of the Law Commission on the subjeot of
role of judicial administration in so far as the recommendation
related to the Bar and to legal education.
In the statement of
objects and rejlsons of the Bill which came to be enacted as the
Act the main features were st~ted to be as follows :
(1) The establishment of an all India Bar Council
and a common roll of advocates, and advocate
on the common rvll having a right to practise
in any part of the country and in any
Com~,
iQcluding the Supreme Court;
. (2) the integration of the bar into a single class of
legal practitioners known as advocates.
( 3) the prescription of a unifonn qualification for
the admission of persons to be advocates;
( 4) the division of advocates into senior advocates
and other advocates based on merit;
( 5) the creation of autonomous Bar Councils, one
for the whole of India and one for each State.
Aocording to the preamble the A()t was meant to amend and
cons-:>lidate the law relating to legal practitioners and to provide
for the constitution of Bar Councils and an all India Bar.
Chapter II dealt with Bar Councils. There was to he a Bar Council
for ~ach State and a Bar Council of India as provided by ss. 3 and
4 respectively.
Under s. 6 the functions of the State Bar Council, inter alia, were to admit_persons as adv0cates on its roll and to
prepare and main'tain such roll.
Section 7 dealt with the functions of Bar Council of India.
Amongst them the Bar Council
of India had to prepare and maintain a common roll of advocates;
to lay down standards of profe&&ional conduct and etiquette for
advocates; to safeguard the rights, privileges and interests of
advocates etc.
Chapter III dealt with admission and enrolment
of advocates.
Under s. 17 the State Bar Council was to maintain roll of advocates in which !he names and addresses had to be
entered of (a) all persons who were entered as advocates on the
roll of any High Court under the Indian Bar Council Act 1926
immediately before the appointed day and who, within the prescribed time. expressed an intention in the pJ>~scribed manner (o
practise within the jurisdiction of the Bar Council and
(b) all
other persons who were admitted to be advocates on the roll of
the State Bar Council under the Act on or after the appointed
day.
No person was to be enrolled as an advocate on the roll of
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I 08 0
SUPREME COURT REPORTS
[1973] 2 S.C.R.
more than one State Bar Council.
Section 18 laid down
that
any person whose name was entered as an advocate on the roll of
any State Bar Council could make an application to the Bar
Council of india for the transfer of his name from the roll of that
State Council· to the roll of any other State Bar Council. On
re~eipt of such application the Bar Council of India was to direct
that the name of such perwn shall, without payment of any fee;
be removed from the roll of the first named State Bar Council ~nd
entered in the roll of 'the other Bar Council and tlte State Bar
Councils concerned were enjoined to comply with such a direction.
Under s. 19 every State Bar Council had to send the Bar
Council of India an authenticated copy of the roll of advocates
prepared by it for the first time and thereafter communicate all
alterations and additions etc. to any such roll.
Section 20 contained a similar provision making it obligatory on the Bar Council of India to maintain a common roll of advocates comprising
the en:tries made in all State rolls and include the names of all
advocates entitled as of right to practise in the Supreme Court
inunediatel,y before the appointed day whose names were not
entered in any State roll.
Section 22 was in ·the following terms :
"Certificate of enrolment-There shall be issued
a certificate of enrolment, in the prescribed form-·
(i) by the State Bar Council to every person whose
name is entered in the roll of advocates maintained by it under this Act; and
(ii) by the Bar Council of India· to every person
whose name is entered in the common roll
without his name having already been entered
in any State roll''.
Seotion 24 laid down the qualifications of persons who could be
admitted as advocates on a State roll.
These qualifications in·
eluded the requirement of completion of the age of 21 years and
obtaining of a degree in law or being a Barrister etc. i.nd Clauses
( e) and ( f) of sub-s. (1) made it obligatory that such a person
should fulfill.
The other conditions which might be specified in
the rules made by the Bar Council· and should have paid an enrolment fee of Rs. 250/- to the State Bar Council.
Under s. 25
the application for admission had to be made in the prescribed
form to the State Bar Council within whose jurisdiction the appli•
cant proposed to practise.
Chapter V related to the right to
practise.
From the appointed day there was to be only one class
of persons entitled to practise the profession of law,
namely,
advocates.
Every advocate whose name was entered in a common roll was. entitled .as of right to practise throughout 1the territories to which the Act extended in all courts' including the
Supreme Court •. before any Tribunal or person legally authorised
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BAR COUNCIL U.P, v. U.P. STATE (Grover,!.)
1081
to take evidence and appear before any other authority or person
before whom such advocate was by or under any law for the time
being in force entitled to practise.
No person could, after the
appointed dav .• be entitled to practise in any court or before any
authority or person unless he was enrolled as an advocate under
the Act.
The High Court could make rules laying down conditions subject to which an advocate was to be permit!".<! to practise in the. High Court and the courts subordinate thereto.
All
these provisions were contained in Chapter IV of the Act.
As
provided by s. 52 nothing in the Act was to be deemed to affect
the power of the Supreme Court to make rules under Art. 145 of
the Constitution for laying down the conditions subject to which
a senior advocate was entitled to practise in that court and for
determining the persons who would be entitled to act in that
court.
It is quite apparent that 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 admision of such persons to the profo;:ssion was sought to be achieved
by the provisions of the Act. It was essenti,Jll for an advocate, if
he wanted to practise, to have his name on the common roll of
advocates whioh was to be prepared and maintained by the Bar
Council of India.
The common roll, however, was to comprise
entries made in all State rolls and was to include the names of
advocates entitled as of right to practise in the Supreme Court
iμunediately before the appointed day whose names
were
not
entered in any State roll. If a person did not fall within the latter
classbis name had to be borne on the roll of advocates of the State·
Bar Council.
Apart from fulfilling the qualifications litid down
by the Act and the other conditions specified therein or by any
rules framed under its provisions the advocate had to pay an enrolment fee of Rs. 250/- ito the State Bar Council.
Section
24(1), as already stated, -contained the conditions for the admission of an advocate on the State roll and sub-clause (f) of sub-s.
(1) constituted one of those conditions without the fulfilment of
which a person could not be said to satisfy the requirements of
s. 24. Under the Act only that sum or amount was payable and
even when an advocate desired to have his name transferred from
one State roll to another he could get the same done without payment of any additional fee : (Vide s. 18).
Now by the Act, section 8 of the Bar Councils Act apart from
o_ther. sections was r~pealed. .In spite of the repeal of that provision 1t appears that m the Indian Stamp Act Art. 30 continued to
be so framed as to make a provision for levy of a duty on entry
as an advo7ate on the roll of any High Court under the Indian
Bar Councils Act 1926 or in exercise of the power conferred on
such court by Letters Patent or by the Legal Practitioners Act
108~
SUPREME CO.URT REPORTS
[1973] 2 S.C.R;
1879. After the repeal of the relevant and material portions or
these enactments relating to admission of advocates by the Act
this Artii:Je would appear to have become obsolete.
But diffe.
rent States inserted provisions levying duty on the certificate ·Of
enrolment in the roll of advocates prepared and maintained by
the State Bar Councils under the Aot.
The learned single judge who heard the writ petition filed by
the Bar Council of Uttar Pradesh allowed the same by a judgment dated November 12, 1963. He proceeded ·to consider
whether ithe Stamp Amendment Acts which had been passed
after the enactment of the Act were valid under the provisions of
Article 246 of the Constitution. He was of the view that it was
within the exclusive competence of the Parliament to legislate in
respect of persons entitled to practise before the Supreme Court
and the High Courts and the State Legislatures had no such com·
petenre. Ass. 8(2)(b) of the Indian Bar Council Act 1926
had been repealed and under s. 24(1)(g) of-the Act the Parlia·
ment had prescribed the payment of a fee of Rs. 250 /- only for
enrolment bv the State Bar Council it must be assumed that the
Parliament had delib<'.rately omitted the previous pattern in regard
to the payment of the stamp duty by the per~ons wishing to be
enrolled as advocates of High Court while enacting the Act The
Act was a very comprehensive enactment and $e Parliament had
dealt with cverv aspect of the matter including the .conditions
which had to be fulfilled before a person could be admitted as an
advocate on the State roll.
As the levy of stamp duty on the rertificate of enrolment was not one of those conditions prescribed
by the Act_the State Legislature had, by levying stamp duty on
such a ce.rtificate, encroached on the legislative field of Parliament.
Principally on th~ grounds the learned judge allowed
the writ petition.
A special appeal against the judgment of the single judge was
tak.en to a Division Bench.
After referring to the various entries
in the three lists it was held that no question of repugnancy arose
between the Stamp Amendment Acts and the provisions of the
Act.
Special notice was taken of the omission in the Act of a
provision barring the levy of stamp duty on the certificate of enrolment or entry on the roll relating to the admission of an advocate.
It was pointed out that no question of repugnancy could arise
under Art. 254 of the Constitution because the Stamp Amendment
Laws had received the consideration of the President and his
assent and thus the conditions laid down by Art. 254(2) had beel1
complied with.
The appeal was allowed and the judgment of the
learned single judge was set aside.
Now Entries 77 and 78 in List I in the Seventh Schedule to
the Constitution are as follows :
A
f
B
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D
E
F
G
H
I t
,
(
"
•
;
~
'it!
I,
~,
J .
.
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•
A
B
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E
F
G
H
BAR COUNCIL U.P. v. U.P. STATE (Grover, J.)
1083
"77 Constitution, or~nisation, jurisdiction
and
powers of the Supremt; Court (including contempt of
such Court), and the fees taken therein; person entitled
to practise before the Supreme Court .
78 Constitution and organisation (including vacations) of the High Courts except provisions as to officers
and servants of High Courts; persohs entitled to pra~
tise before High Courts".
Entry 91 relates to rates of stamp duty in respect of certain instruments which do not cover an instrument or a document with
which we are concerned, namely, certificate of enrolment issued
under s. 22 of the Act. Entry 96 in the same list relates to fee>
in r-espect of any of the matters in the List but not including the
fee taken in any court.
Errtry 63 in List II relates to rates of
stamp duty in respect of documents other than those specified in
List I i.e. Entry 91. In the same List Entry 66 relates to fees in
respect of any of he matters in that List but not including fee
taken in any court.
The following Entries in List III may be
reproduced :
"26. Legal, medical and other professions".
"44. Stamp duties other than duties or fees collected by means of judicial stamp, but not including rates
of stamp d u'ty".
There is no dispute that the Act was enacted under Entries 77 and
78 in List I. It is equally clear that the words "persons entitled
to practise" would include determining or prescribing the qualifications and conditions that a person should possess and satisfy
before becoming entitled to practise as an advocate before the
Supreme Court or the High Courts.
So far as persons entitled to
practise before these courts are concerned "the power to legislate
in regard to_ them is carved out from the general power relating
to the provision in Entry 26 in List III and is made the exclusive
field for "Parliament".
In other word. the power to legislate in
regard to persons entitled to pract;se before the Supreme Court
and the Higl) Courts is altoir~ther excluded from Entry 26 in Li>t
IIl. (See 0. N. Mohindroo v. The Bar Council
of Delhi &
Others(').
From the entries the following scheme with regard
to persons entitled to practise will appear to emerge; ( 1) The
Parliament has the exclusive power under Entry 77 and Entry 78
in List I to prescribe. inter alia, the qualifications and conditions
on the fulfilment of which persons would be entitled to practise
before the Supreme Court or the High Courts.
Any fee \l.hicl1
may be payable by such person;; before they can claim to
be
entitled to practise would fall under Entry 96 of laat List; (2)
Entry 44 of List III enables le~islation with-regard to its levy but
(I) [1968] 2 S.C.R. 709.
1084
SUPREME COURT REPORTS
[1973] 2 S.C.R,
the rates of the stamp duty can be prescribed by the Parliament
only with regard to instruments falling within Emry 96 of List I
and by the :kate Legislature undo~r Entry 63 of List II.
The main question on which the controversy has centered is
whether the levy of stamp duty on the certificate of enrolment of
an advocate is a purely taxation measure or whether it is a part
B
of the conditions prescribed by s. 24 of the Act which an advocare
must satisfy' before he becomes entitled to practise. If the requirement of the payment of such a duty is a condition precedent
to the conferment on a person of the privilege of audience and
representing suitors before the Supreme Court and the High Court~
any ;egislation relating to it would be within the competence of
C
the Parliament. If, however, it is purely a taxation measure then ·
it would fall within Entry 44 of the Concurrent List in which
event both the Parliament and the State Legislature would . be
competent t~ enact lel!islation for the levy of the duty although it
is only under Entry 63 of List II that rates can be prescribed by
the State Legislature. In other words, the charging provisions
can be enacted by both the Parliament and the State Legislatures
D
subject to the rrovisions of Art. 254 of the Constitution. It is
well settled that the scheme of the Entries in the variou~ List~ is
that taxation is not intended to be comprised in the main subject
in which "it 111ight on an extended construction be regarded as
included but is treated as a distinct matter for the purpose of
legisiative competence''.
Even under the residuary
power
of
E
legislation conferred by Art. 24& the Parliament can only impose
that tax wh_ich is not m~ntioned in either List Ill or List II.
It has been pointed out on behalf of the respondents that the
Indian Bar Council Act 1926 was passed under the provisions of
the Government of India Act 1915.
Under that Act the States
had no power to levy tax in the nature of a stamp duty.
It was
possibly for tl)at reason that a provision was.made in s. 8(2) by
the Central Legislature expressly saying that the persons who were
to be enrolled as advocates shall have to pay stamp duty, if any,
charl!,eable under the Indian Stamp Act 1899 and fee payable to
the Bar Council.
In the Government of India Act 1935 there
was no entry ~quivalent to Entries 77 and 78 of the Constitution
in List I, Entry 57 in List I of the Act of 1935 corresponded to
Entry 91 in List I of the Constitution.
Entry 51 in List lI of that
Act corresponded to Entry 63 in List II of the Constitution. Entry
13 in the Concurrent List in the Schedule to the 1935 Ac:t"corresponded to Entry 44 in List III of the Constitution.
Entry 16 in
the Concurrent List in the Schedule to the Act was "legal. medical
and other professions".
It was .similar to Entry 26 in List III of
the Constitution.
The stamp du'ty was payable to the Bar Council in Uttar Pradesh as provided by the Bar Council Act 1926
F
G
H
•.
A
II
c
D
E
F
G
BAil COUNCIL U.P. v. U.P. STATE (Grover, /,)
1085"
under Entry 30 of U.P. Act III of 1936.
After the Constitution
came into force the U.P. Stamp Amendment Act 1952 was enacted.
The charginl( section was s. 3 under which among others
every instrument mentioned in Schedule 1 (A) or 1 (B) executed
in Uttar Pradesh was chargeable with the duty of the amount Indicated in those schedules.
When the Act was enacted its provisions fell principally under Entries 77 and 78 in List 1 of the
Seventh Schedule.
These Entries, it has been strenously argued
on behalf of 1the respondents, do not include the taxing power
whicli was contained in the different Entries which have already
been indicated.
The stamp duty pertains to tho~ domain of taxation and is covered by Entry 63 in List II read with Entry 44 in·
List III.
·As already noticed the entire scheme of the Act. was to have·
complete uniformity so far as advocates were concerned for the
whole country.
This essentially involved the question of the·
payment which an advocate had to make for getting a certificate
with regard to his entry on the roll either of the State Bar Council
or the commsm roll of the Bar Council of India.
The fee prescribed for that purpose by the Act was Rs. 250/-.
Unfortunately
the Parliam1<nt while enacting the Act made no provision that in
addition to the fee of Rs. 250/- the Advocate shall not have to
pay any stamp duty which is essentially in the nature of a· tax on·
the certificate of enrolment to be issued by the State Bar Council
or exempt the payment of stamp duty on the certificate of enrolment.
That could have been done under Entry 44 of List IIJ.
In the absence of any such provision the position which emerges
may be stated thus.
Although the Act relates to legal practi-
'tioners, in its pith and substance it is an enactment dealing with
qualifications, enrolment, right to practise and discipline of the
advocates.
As has already been noticed the Act was held to be
covered by the latter part of Entries 77 and 78 (Vide 0. N.
Mohindroo's case (supra).
The fee of Rs. 250/-
which an
advocate. must pay under the provisions of s. 24(f) of the Act i~
covered by Entry. 96 in List I which expressly relates to fees in
respect of any of the matters in that List.
The stamp duty which
is payable on the certificate of enrolment pertains to the domain
of taxation and it is hardly possibly to regard it as a condition
which can be prescribed for enrolment unC:~r the Entries in List
I.
The ~position of such a duty falls in pith and substance
under Entry 4_4 of List III and the prescribing of rates under
Entry 63 of List II. In M. P. V. Sundaramier & Co. v. The State
of 1ndhra Pradesh & Anr.( 1), it was observed, ·after a full examinallon of the scheme of Entries· at page 1480 :
~ H
"The above analysis-and it is not exhaustive of
the Entries in the Lists-leads to the inference that
(I) [1959] S.C.R. 1422.
i08li
SUPREME COURT REPORTS
[1973] 2 s.c.R,
taxation is not intended to be comprised in the main
subject in which it might on an extended. construction
be regarded as included, but is treated as a distinct matter for purposes of legislative competence.
And this
distinction is also manifest in the language of Art. 248,
Clauses (1) .and ( 2) and of Entry 97 in List I of the
Constitution".
In S. Ananthakrishnan v. State of Madras(') the levy of stamp
duty on a document which gives a person the privilege or the
right to plead and act on behalf of the suits was considered to fall
within the taxing power of the State.
It is difficult to escape the
conc!Jsion that the levy of stamp duty by means of the Stamp
Amendment Acts in the State of Uttar Pradesh was not covered
hy any of the Entries in List I and therefore it could not be. said
that the State was incompetent to levy the duty and prescribe the
rate under Entry 44 of List HI and Entry 63 of List II in the
Seventh Schedule to the Constitution.
Any argument on the
basis of !egi5lative ihcompetencc. has, therefore, to be reptilled.
A contention sought to be raised on behalf of the appellants
hased on the question of repugnancy can hardly be of any avail.
Once it is held that the power to tax was within the competence
of the State Legislature no question of repugnancy under Art. 254
of the Constitution could arise.
The question of repugnancy can
only arise in matters where both the Parliament and
th0 State
Legislature have legislative competence to pass laws.
In other
words when the legislative power is located in the Concurrent List
the question of repugnancy arises : See Prem Nath Kaul v. State
o.f Jammu & Kashmir('). Moreover in the present case the pro·
visions of clause (2) of Art. 254 of the Constitution have been
complied with inasmuch as the assent of the President has been
taken while enacting the impugned Amending Acts.
The . rule
laid down in the State of Jammu & Kashmir. v. M. S.