Case Name: Devendra Nath Tripathi v. Union of India & Ors.
Case number: WRIT PETITION NO. 1549 OF 2017
Date: Monday, the twenty-fifth day of August, two thousand and twenty-five
Quorum: Justice Suman Shyam & Shyam C. Chandak, JJ.
Facts
The petitioner, Devendra Nath Tripathi, is a practicing advocate. He was enrolled with the State Bar Council of Uttar Pradesh as an Advocate, and the enrollment number is 82 of 2003.
Later the petitioner shifted to Mumbai after practicing a few years there.
On 25th September 2013, Petitioner applied to transfer his enrollment from Uttar Pradesh to Maharashtra in the Bar Council of Maharashtra and Goa.
The transfer from the Uttar Pradesh to the Maharashtra Bar Council is to be free of cost.
Respondent No. 1 charged the amount of Rs. 15,405 as a transfer fee from the petitioner for the transfer of enrollment.
Breakdown of amount 15,405:
- a) Rs. 1,900/- to Bar Council of UP
- b) Rs. 11,490/- to the Bar Council of Maharashtra & Goa
- c) Rs. 2,015/- to the Bar Council of India.
The petitioner claimed that Section 18 of the Advocates Act 1961 says the transfer of enrollment from one state to another state is without payment of any fee.
Petitioner also alleged that the Bar Council of Maharashtra and Goa wrongfully charged retrospectively from 2003 to 2014, even though he was not a member of BCMG during that period.
Petitioner filed a writ petition seeking the quashing of the resolution that the fee during the transfer of enrollment from one state to another is illegal and compensation and a refund with interest.
Issues
- Whether the Bar Council of Maharashtra and Goa was lawfully justified in charging the transfer fees for enrollment from one state to another under section 18 of the Advocates Act, 1961.
- Whether the petitioner is entitled to the refund, compensation, and interest he mentioned in the writ petition.
- Whether charging fees retrospectively from 2003, when he was not a member of BCMG, was valid.
Legal Provisions involved
Section 18 of the Advocates Act 1961 says the transfer of name from one state roll to another.
18(1) deals with any person whose name is entered as an advocate on the roll of any State Bar Council who may make an application in the prescribed form to the Bar Council of India for the transfer of his name from the roll of that State Bar Council to the roll of any other State Bar Council, and, on receipt of any such application, the Bar Council of India shall direct that the name of such person shall, without the payment of any fee, be removed from the roll of the first-mentioned State Bar Council and entered in the roll of the other State Bar Council, and the State Bar Councils concerned shall comply with such direction.
Articles 14 and 21 of the Indian constitution: Article 14 deals with equality before the law, and Article 21 protects the right to personal life and liberty.
Arguments
Petitioner’s Arguments:
- Section 18(1) of the Advocates Act, 1961, says that the transfer of enrollment from one state to another state should be without payment of any fee; hence, the chargeable amount imposed by the respondent is illegal.
- Resolution No. 112 of 2010 of the Bar Council of Maharashtra and Goa: the fees are ultra vires in the Advocates Act.
- Supreme Court precedent: relied on Gaurav Kumar v. Union of India Writ Petition No. 352/2023; in this case, the Supreme Court held that the Bar Council cannot collect fees beyond those provided in the Act.
- The charging fees retrospectively to 2003 when the petitioner was not the member of the Bar Council of Maharashtra and Goa. It is unreasonable and violative of Articles 15 and 21 of the Indian Constitution.
Respondent’s Arguments:
- Respondent No. 1 argues in the light of the Gaurav Kumar v. Union of India case that if the grievance is limited to transfer fees under Section 18 of the Advocates Act, the Bar Council has no objection if the court rules against fees.
- The respondent said the decision should apply prospectively.
- Respondent No. 3 did not appear to present its position in the court.
Analysis
The Bombay high court highlighted the section 18(1) of Advocates Act, 1961, which states that the Bar Council of India shall direct the transfer of an Advocates Name from one state Roll to another state “without the payment of any fees”. The fee collected by the respondent was in direct contravention.
The Bombay High Court applied Ratio from the Supreme Court’s decision in Gaurav Kumar v. Union of India & Ors. In that case Supreme Court held that state Bar Council cannot charge fees beyond the what is mentioned in the statute. By applying this principle High Court of Bombay concluded that since section 18 of Advocates Act does not permit any fees for transfer. Bar Council authorizing such fee was unlawful and invalid under the law.
Judgment
- The Bombay High Court held that the transfer fees of enrollment from one state to another state under Section 18 of the Advocates Act are illegal.
- The decision taken by the court will apply prospectively and not reopen refunds and past transactions.
- Relief granted to petitioner: the High Court allowed the Writ Petition only to the extent of prayer A (that the transfer fee is illegal).
- No relief granted by court for refund, interest, or compensation; petitioner did not press for it.
Conclusion
High Court of Bombay declared the practice of levying a fee for transfer of enrollment of Advocate from one state to another state is illegal and it violates the section 18 of the Advocates Act,1961. The ruling was made to have a prospective effect and quashed the practice of charging fees for transferring an Advocates enrollment. The Writ Petition was allowed by the court with no refund, interest and compensation.
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WRITTEN BY Manisha Kunwar
