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BEFORE THE HONOURABLE HIGH COURT OF KERALA

AT ERNAKULAM

W.P(C) No. of 2015

Petitioner:-T. Koshy, S/o C.G. Thomas , aged 64 years, Advocate, Lawyers Associates,Kalyan Chambers, Chittoor Road,Ernakulam South, Cochin – 682 016, residing at11-B Charuvil, Priyadarshini Nagar, Thevara PO,Ernakulam District, PIN – 682 013. Vs.Respondents:-1. The Bar Council of Kerala, High Court Buildings, Ernakulam, Kochi – 682 031, represented by its Secretary.

2. The Bar Council of India, 21 Rouse Avenue Institutional Area, New Delhi- 110002- represented by its Secretary.

3 Union of India , represented by the Secretary to Ministry of Law and Justice, Shastri Bhavan, New Delhi – 110001

A. Address for service of notices to the petitioner is that of their

Counsel, M.M.Monaye and M.Paul Varghese Advocates, Lawyers

Associates, Kalyan Chambers, Chittoor Road, Ernakulam South, Kochi -16.

B. Address for service of notice to the respondents are as shown above.

WRIT PETITION (CIVIL) FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

STATEMENT OF FACTS:-

1. This writ petition is filed by the petitioner who is a senior

citizen, challenging the gross injustice and hostile discrimination and the

illegal extraction of a huge sum of money suffered by him from the

respondents while in the exercise of their powers under the Advocate’s Act

1961 (hereafter referred to as the “Act” for short), for the enrolment of

Advocates, held on 24 May, 2015. In gross violation of the provisions of law

regarding amendment of a statutory rule and inconsistent with the provisions

of the Act, the respondents in a casual manner declared to have amended Rule

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2(a) of the Bar Council of Kerala Rules 1979 purportedly under the authority

conferred in sub-section (2) of Section 28 of the Act to facilitate this arbitrary

and unlawful treatment on the petitioner and other similarly placed candidates

seeking enrolment as advocates. By way of the said amendment, the

respondents are acting as though have unlimited power to discriminate against

persons and extract money from them, when approached for enrolment.

2. The petitioner is a senior citizen, having retired on

superannuation from the Indian Postal Service, Group A in January 2011.

Prompted by an urge to study and practice law with the genuine desire to

spend the rest of his life in rendering legal help to the poor and aged people,

the petitioner appeared for the Common Entrance Test for admission to LL.B

III Year (Regular) Course and came out with the 15th position in the State. The

petitioner joined the LL.B. III Year course 2011-2014 at the Government Law

College, Ernakulam and passed the final examination with first class.

Immediately after passing the examination the petitioner approached the 1st

respondent to enroll as an Advocate. The petitioner was informed that, being

a senior citizen retired from service, a special fee of Rs. 35000/- had to be paid

by him over and above the enrolment fee fixed for ordinary candidates. On

being enquired of the reason for this differential treatment, the petitioner was

told that the policy of the respondents is to discourage senior citizens from

entering the legal profession and, for that purpose, a heavy amount is levied

from them as a deterrent. When the petitioner expressed his intention to make

a formal representation against this discriminatory treatment, he was cautioned

that such a move will only result in more hurdles in his enrolment as the 1 st

respondent was having unbridled power in the matter of enrolment. The

application for enrolment was to be filed on-line, and the application could not

be uploaded without remitting all the fee as demanded. In such a situation, the

petitioner was forced to make the application by paying the additional special

fee and other kinds of fees as demanded by the 1st respondent and got

enrolled. True copy of the application format uploaded on 8.4.2015 on the

website of the Bar Council of Kerala showing the amount of fee demanded by

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the respondents and paid by the petitioner under various heads is produced

herewith and marked as Exhibit P-1.

3. The law governing the Admission and Enrolment of Advocates is

stated in Chapter III of the Advocate’s Act 1961 in sections 16 to 28. Sub-

section (1) of section 17 states that “every State Bar Council shall prepare and

maintain a roll of advocates in which shall be entered the names and addresses

of all persons who are admitted to be advocates on its roll.” Sub-section (2)

states that “each such roll of advocates shall consist of two parts, the first part

containing the names of senior advocates and the second part, the names of

other advocates.” Section 24 of the Act deals with the qualifications of

persons who may be admitted as advocates on a State roll. According to this

section, “a person may be admitted on a State roll as an advocate if: (a) he is a

citizen of India; (b) he has completed the age of 21 years; (c) he has obtained a

degree in law; (d) he fulfils such other conditions as may be specified in the

rules made by the State Bar Council under this chapter; and (e) he has paid in

respect of the enrolment, stamp duty, if any, chargeable under the Indian

Stamp Act, 1899, and enrolment fee payable to the State Bar Council of six

hundred rupees and to the Bar Council of India, one hundred and fifty

rupees; Provided that in the case of a member of the scheduled caste or

scheduled tribe, the fee payable to the State Bar Council shall be one hundred

rupees and the Bar Council of India twenty five rupees”. It could thus be seen

from Chapter III of the Act that the Parliament in its wisdom has broadly

classified the advocates as senior and other advocates for the purpose of

preparation of the roll of advocates and also classified the candidates for

enrolment into SC/ST and other candidates. No other sort of classification is

envisaged in the Act.

4. The respondents 1 and 2, by way of an illegal, so-called

amendment to Rule 2(a) of the Bar Council of Kerala Rules 1979, introduced

a rule by which they could extract exorbitant amounts from candidates like the

petitioner who sought enrolment as advocates. True copies of the letter dated

30.3.2015 along with the documents showing the amendments claimed to have

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been made in the Rule 2(a) in October 2014, as received from the 1st

respondent by a well wisher of the petitioner viz. Mr. Shajan David under the

Right to Information Act, is produced herewith and marked as Exhibit P2.

The schedule of fees introduced pursuant to the said amendment attached with

Ext:P2 would show the exorbitant amounts realized from the petitioner and

similar others. True copy of the relevant portion of the Bar Council of Kerala

Rules 1979, showing the Rule 2(a) as it stood before the amendment at Ext:P2

is produced herewith and marked as Exhibit:P3. The very same Mr. Shajan

David obtained a letter from the 2nd respondent under the Right to Information

Act regarding the approval of the enhancement of fees in 2013. True copy of

the said letter dated 24.4.2015 showing the approval given by the 2nd

respondent for the enhancement of fee in 2013 is produced herewith and

marked as Exhibit P4. Perusal of exhibit P-2 and P-4 shows that amendment

of rule to enhance the rate of fee and granting of approval by the respondents

is a regular routine process.

5. A perusal of Exts:P2 to P4 would show that the rule making

power is being abused in accordance with the whims and fancies of the

respondents 1 and 2.Section 28 (2)(d) of course authorizes the respondents to

make rules providing for the conditions subject to which persons may be

enrolled as advocates. The payment of fee or making rules in this regard

cannot in anyway be pictured as a condition subject to which a person may be

admitted as an advocate. The interpretation of the Act in that way will only

defeat the intention of the legislature. Conditions regarding amount of

enrolment fee to be collected is specifically provided in clause (f) of sub-

section (1) of Section 24 the Act itself, and cannot be altered by way of an

amendment to the rule picturing it as a condition. The purpose of the

amendment is stated in Exhibit :P2 is to regularize the collection of other fees

under various heads without any enabling provision, which obviously is not a

purpose of section 28 (2).

6. A perusal of Exhibits P2 and P4 shows that the respondents have

differentiated the candidates for enrolment as advocates into three more

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categories, namely, (a) candidates seeking enrolment after 5 years from the

date of passing LL.B, (b) candidates seeking enrolment after 10 years from the

date of passing LL.B and (c) candidates those who had retired from service

seeking enrolment after attaining the age of superannuation. The

classification thus made by the respondents has no nexus with the object of the

Act, namely enrolment of advocates nor is it founded on any intelligible

differentia which distinguish the persons grouped together from those that are

left out of the group. The classification, on the other hand, is solely made for

the purpose of extracting excess amount from certain sections of candidates

and to block their entry into the legal profession. The hostile discrimination

against aged persons adopted by the Bar Council, which is the guiding

professional body in legal profession, has set a bad example before others in

the field. Following the example set by the Bar Council of kerala, the Bar

Associations have also started discriminating against senior persons to collect

higher amount of admission fees.

7. The respondents have resorted to collecting heavy amounts

under several heads of fee, other than the enrolment fee prescribed by the

Advocate’s Act as is seen from Exhibit P2 and Exhibit P4. A heavy sum of

Rs. 1500/- is charged for Application form, though no application form was

supplied, the application being made on-line. Registration fee of Rs. 2000/- is

charged without authority, even though there is no separate registration

process, other than the enrolment process as prescribed in the Act.

Contribution to Chairman’s Relief Fund Rs. 500/- and BCI Welfare Fund Rs.

3000/- have been collected from the petitioner, even though the petitioner is

not entitled for any welfare fund benefits under the Welfare Fund Rules, since

he is a retired pensioner. Enrolment Certificate fee Rs. 500/- is collected

which is not authorized. Section 22 of the Act states that a Certificate of

Enrolment shall be issued in the prescribed form to every person whose name

is entered in the roll of advocates, for which no separate fee is prescribed. The

cost of issuing the certificate is included in the enrolment fee of Rs.600/- fixed

by the Act. Interestingly, an amount of Rs.350/- is charged as “Advocate’s

Act”, the purpose of which is not known. The Bar Council of Kerala has no

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copy rights over the Advocate’s Act, which is published by several agencies

and is available in the market for less than Rs. 80/- per copy. The respondents

have not supplied a copy of the Act to any person enrolled by them in May

2015. So also, an amount of Rs. 200 is collected as fee for Identity Card,

though good quality identity card can be made for less than Rs. 25/-. In this

case also, the respondents have not supplied any identity card to any enrolled

candidate so far. Rs.150/- is collected by way of BCI Collection fund, the

purpose of which is not known. It is thus seen that substantial amounts have

been charged under various bogus heads according to the whims and fancies

of the respondents, without any correlation to the actual cost involved for

providing the service. In any case, the petitioner has not been benefited by any

of the amounts, other than the prescribed enrolment fee of Rs. 600/- collected

by the respondents. Thus an amount of Rs. 35000/- has been collected in the

name of “special fee” and an amount of Rs. 8200/- collected in the name of

various kinds of unauthorized fee, all of which actually qualify to be termed as

“tax” according to settled law. The amount of Rs. 35000/-collected

additionally from the petitioner is actually a tax on ageing. The petitioners

have no authority to collect taxes and by their actions as afore- said, they have

violated Article 265 of the Constitution of India.

8. The respondents have made a mockery of the law regarding amount of

enrolment fee fixed by Parliament in clause (f) of sub-rule (1) of section 24 of

the Advocate’s Act by making an amendment to the rule as seen in Exhibit p2

and P4 which, in effect, takes away the legislative guidelines on the subject.

On the purported authority derived through this amendment, the 1st respondent

has been consistently enhancing the fee on each occasion of enrolment. The

amount of fee charged for 3 recent enrolments is shown below;

Dec. 2014 May 2015 Sept 2015

(Proposed)

1.Ordinary Candidates 6500 8800 13,400

2. Special fee( in addition to ordinary fee)

(i)Candidates seeking enrolment after 5 yrs of passing LL.B 10000 15000 20,000

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(ii)Candidates seeking enrolment after 10 yrs of passing the LL.B 15000 20000 25,000

(iii)Candidates those who retired from service seeking enrolment after attaining the age of superannuation 25000 35000 50,000

It could thus be seen that the respondents are engaged in a spree of fund

collection by abusing the power conferred on them for the enrolment of

advocates. Enrolments are made on 2 or 3 occasions every year and there is

consistent increase of fee each time. If the greed and enthusiasm of the

respondents go unchecked the fee structure is likely to become unaffordable

for common people within a short time.

9. The bar Council of kerala is not the only authority entrusted with the

duty of enrolling advocates. There are 24 State Bar Councils in India

entrusted with the function of enrolment of advocates. With the enactment of

the Advocates Act of 1961, the law on enrolment and legal practice has been

made uniform throughout India. No other State Bar Council collects such

exorbitant and unreasonable fee as collected by the 1st respondent. Nor does

any other State Bar Council levy a penal charge on superannuated persons

seeking enrolment. The Bar Council of Maharashtra &Goa collects enrolment

fee of Rs. 5450/- if application is submitted on-line (Rs. 5450/- for direct

submission of application) and the Bar Council of Karnataka charges Rs.

9050/-. True copy of the fee structure published on the web site of the Bar

Council of Maharashtra & Goa is produced herewith and marked as Exhibit

P5. True copy of the fee structure issued by the Secretary, Bar Council of

Karnataka for the enrolment in May 2015 is produced herewith and marked as

Exhibit P-6. There has been wide spread public criticism, besides protests by

Law students on the unjustified extraction of heavy amounts of fee by the 1st

respondent. A clipping from the Mathrubhumi Daily dated 15 July 2015

stating that the fee for enrolment has consistently been raised from Rs. 3000/-

to more than half-a lack rupees, is produced herewith and marked as Exhibit

P-7. Another clipping from the Malayala Manorama Daily dated 20 th July,

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2015 on the protest dharna held by the students of Law College, Ernakulam is

produced herewith and marked as Exhibit P-8.

10. The respondents have resorted to differentiating candidates who

retired from service seeking enrolment after attaining the age of

superannuation for the purpose of extracting a heavy amount of penalty for the

reason of their ageing. The respondents have played a cruel joke on this

category of persons at a time when the world has awaken to the need for

protecting the human rights of aged citizens. The United Nations General

assembly has adopted a policy for protecting the rights of aged people to work

and to enable them to participate in and contribute to the ongoing activities of

society. A True copy of the resolution on the United Nations Principles for

Older Persons adopted by the General Assembly resolution 46/91 of 16

December 1991encouraging Governments to incorporate the principles into

their National programmes, is produced herewith and marked as Exhibit:P9.

11. A campaign paper published by HelpAge International in

collaboration with a few other international organizations for a UN

Convention on Strengthening of Older Peoples’ Rights states:

“The Universal Declaration on Human Rights states in Article 1 that ‘all

human beings are born free and equal in dignity and rights’. This equality

does not change with age: older men and women have the same rights as

people younger than themselves.

The rights of older people are embedded yet not specific in international

human rights conventions on economic, social, civil, cultural and political

rights. Examples include the rights to equal protection before the law, the

right to own property, the right to education, the right to property, the right to

education, the right to work and the right to participate in government.”

A copy of the paper as published on the website is produced herewith and

marked as Exhibit P-10.

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12. Aggrieved by the gross discrimination and injustice done by the

respondents1 and 2 on the petitioner, and having left with no other efficacious

remedy, the petitioner is constrained to approach this Hon’ble Court under

Article 226 of the Constitution of India on the following, among other,

GROUNDS

A. The Bar Council of Kerala has no jurisdiction under Section 28 of the

Advocate’s Act to amend Rule 2(a) of Chapter V of the Kerala Bar Council

Rules 1979 as done in Exhibit P2 to alter and enhance the fee structure laid

down by the Parliament in clause (f) of sub-section (1) of section 24 of the

Advocate’s Act. In Bar Council of Maharshtra v. Union of India [AIR

2002 Bom220(DB)] the Hon’ble High Court of Bombay, after observing that

the enrolment fee payable under Section 24 (1) (f) of Advocate’s Act was

increased by more than double from Rs. 250/- to Rs. 600/- by the Parliament

by way of amendment by Act No. 70 of 1993 taking into account the financial

needs of the Bar Councils, held that the fee so fixed by Parliament cannot be

altered or other kinds of fee permitted to be recovered from the advocates

otherwise than through amendment of the Act. The amendment brought in

Exhibit P-1 is ultra vires the provisions of section 24 of the Act and requires to

be struck down.

B. The respondents have no authority to classify the candidates seeking

enrolment as advocates into different categories on the basis of the number of

years after passing the LL.B examination or having retired from service and

seeking enrolment after the age of superannuation etc. Such a classification is

made solely for the purpose of extracting higher amounts of money from some

of the candidates, and has nothing to do with the object of the Act as given in

Chapter III. In D S Nakara and others v. Union of India (1983 AIR 130) the

Hon’ble Supreme Court observed:

Article 14 strikes at arbitrariness in State action and ensures fairness

and equality of treatment. It is attracted where equals are treated differently

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without any reasonable basis. The principle underlying the guarantee is that

all persons similarly circumstanced shall be treated alike both in privileges

conferred and liabilities imposed. Equal laws would have to be applied to all

in the same situation and there should be no discrimination between one

person and another if as regards the subject matter of the legislation their

position is substantially the same. Article 14 forbids class legislation but

permits reasonable classification for the purpose of legislation. The

classification must be founded on an intelligible differentia which

distinguishes persons or things that are grouped together from those that

are left out of the group and that differentia must have a rational nexus to

the object sought to be achieved by the statute in question. In other words,

there ought to be a casual connection between the basis of classification and

the object of the statute. The doctrine of classification was evolved by the

court for the purpose of sustaining a legislation or State action designed to

help weaker sections of the society. Legislative and executive action may

accordingly be sustained by the court if the State satisfies the twin tests of

reasonable classification and the rational principle correlated to the object

sought to be achieved. A discriminatory action is liable to be struck down

unless it can be shown by the Government that the departure was not

arbitrary but was based on some valid principle which in itself was not

irrational, unreasonable or discriminatory.

The classification made by the respondents is not founded on any intelligible

differentia which has a rational nexus to the object of the Act and is liable to

be struck down as arbitrary and ultra vires the principle of equality enshrined

in Art 14 of the Constitution of India.

C. The respondents have fixed a heavy amount of penal charge on the

petitioner for the purpose of restraining him from enrolling as an advocate.

Earlier in 1993, the respondent No. 2 had made an attempt to prevent the

enrolment of persons who have completed the age of 45 years through an

amendment of the Bar Council of India Rules by adding Rule 9 in Chapter III

of Part VI, which was struck down by the Hon’ble Supreme Court of India in

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Indian Council of Legal Aid and Advice V. Bar Council of India (1995

KHC 51). The present attempt of the respondents is to circumvent the law laid

down by the Hon’ble Supreme Court by placing unreasonable restraints in the

process of enrolment of senior persons by burdening them with a heavy penal

charge. Exhibit P-2 is a colourable legislation introduced with ulterior motives

and is violative of Articles 19 and 21 of the Constitution of India.

D. All the amounts collected by the respondents as per Exhibit P-2 and

P-4, other than the amount of Rs. 600/- authorized by the Act, are made

without any authority of law and bear no correlation to the service provided in

return. In actual fact, no services have been provided for the additional

amounts collected. It is settled law that a fee when collected is followed by

quid-pro-quo, in the absence of which it is to be termed as a tax. The Hon’ble

Supreme Court of India in State of Rajastan and others v. Sajjanlal

Panjawat and others (1975 AIR 706) observed: Under the Constitution of

India a distinction has been made between a tax and a fee and in each of the

legislative lists power has been given for levy of various forms of taxes.

There is an entry in each of the three lists as regards fees which could be

levied in respect of any of the matters dealt with in the list. As was observed

by Latham, CJ of the High Court of Australia in Mathews v. Chicory

Marketing Board; “A tax is a compulsory exaction of money by public

authority for public purposes enforceable by law and is not payment for

services rendered.” These observations were approved by this court in Sri

Lakshmindra Thirtha Swamiar of Sri Shrirar Mutt’s case, where

MukherjeeJ, as he then was, said that the essence of taxation is compulsion

and imposition made for public purpose without reference to any special

benefit to be conferred on the payer of tax………….. A fee on the other

hand, is payment for a special benefit or a privilege which the individual

receives. It is regarded as a sort of return or consideration for services

rendered and should on the face of the legislative provision be correlated to

the expenses incurred by Government in rendering the services.” The

additional amounts thus collected are to be treated as tax and, not fees. The

amount of Rs. 35000/- collected from the petitioner by way of special fee for

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retiring from service and seeking enrolment after attaining the age of

superannuation, amounts to a penal tax on account of old age, which is which

is alien to law and is opposed to the acclaimed policy of the United nations

and the policy guidelines contained in Art 41 of the Constitution on aged

persons. It is a shame upon the respondents to lay hands on the hard-earned

retirement benefits earned by the petitioner to provide for himself and his

dependents during his old age.

E. The Constitution of India guarantees the right of all citizens to equality,

the right to practice any profession, or to carry on any trade or business and

the right to life and the scope and ambit of these rights have been generously

expanded by the Constitutional Courts in our country. Article 41 also lays

down the Directive Principle for the formulation of policy for older persons.

Respondent No. 2 had earlier made an amendment to the Bar Council of India

Rules in 1993 by adding Rule 9 in Chapter III of Part VI with a view to

barring persons who completed the age of 45 years from enrolment as

advocate. The said rule was struck down by a Division bench of the Hon’ble

Supreme Court of India in Indian Council of Legal Aid and Advises v. Bar

Council of India (1995 KHC 51) holding that there is no dependable material

in support of the rationale on which the discrimination is made and that the

rule is clearly discriminatory, arbitrary and unreasonable. Through the

introduction of the amendment in the Bar Council of Kerala Rules, by placing

heavy restraints in the enrolment process for senior citizens, the respondents

are trying to scuttle the law laid down by the Hon’ble Supreme Court. The

amendment now made is nothing short of a colourable legislation. It is

unheard of in history that a tax had ever been levied on old age

(superannuation) in any part of the world, as has been done by the

respondents.

F. The respondents have no authority to levy any kind of fee other than

what has been specifically authorized by the Parliament in clause (f) of sub-

section (1) of section 24 of the Advocate’s Act. In Bar Council of Maharashtra

v. Union of India [AIR 2002 Bom 220 (DB)] the Bombay High Court, while

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disposing of a petition challenging Section 24 (1) (f) and seeking permission

to collect a higher amount of fee by way of renewal fee on the ground of

financial difficulty, held as under:

Chapter III of Advocate’s Act deals with the admission and enrolment

of advocates there under. 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 advocates on a State roll, one of the

conditions prescribed under clause (f0 of sub-section (1) of section 24 is that

such person who has applied for his admission as 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 enrolment to the State Bar Council was fixed at Rs. 250/-,

by way of amendment by Act 70 of 1993, such enrolment fee payable to the

State Bar Council has been increased by more than double……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 for the Bar Council is

elsewhere. Then Bar Council may take up the matter with the Central

Government for taking appropriate steps in the amendment of the concerned

provisions. The filing of the writ petition cannot be said to be proper

recourse for the redressal of the grievance sought to be raised by Br

Council. Even as regards bar Council’s grievance that it should be permitted

to recover renewal fee periodically from the advocates, unless such

legislation is 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. All in all, no case of invocation of writ jurisdiction is made out. Writ

petition is accordingly dismissed.

G. The respondents are creations of the statutes and are bound to observe

the principles of natural justice while exercising their right to make rules. The

so called amendment to Rule 2(a) of the Bar Council of Kerala Rules is not

made in accordance with law. Even though the amendment of the rule

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regarding enhancement of fee is a matter of considerable public importance,

no publication was made in respect of the proposal for the said amendment,

nor was it published anywhere after the said amendment. No opportunity was

given to the interested public including the students of law to express their

views on the amendment. The provisions of law in this regard are not

adhered to. Section 23 of the General Clauses Act has not been complied with.

So the amendment is unsustainable and liable to be set aside.

It is thus clear that the law regarding collection of enrolment fee as fixed by

the Parliament cannot be over ridden by the Bar Council by invoking its

power to make rules under Section 28.

Reliefs Prayed for:

For the reasons as afore-said, and other grounds that may be urged at

the time of hearing, this Hon’ble court may be pleased to grant the following:

(i) To issue a writ of certiorari or any other writ, order or direction

calling for the records leading to the amendment of Rule 2(a) to the

Bar Council of Kerala Rules 1979 in Chapter V and quash the same.

as shown in Exhibit P-1 and p-2 and quash the same.

(ii) To declare that the amendment of Rule 2 (a) of Chapter V of the

Bar Council of Kerala Rules 1979 enabling the respondent No.1 to

collect ‘application fee and other fees which the Council may

decided from time to time’, is ultra vires, un constitutional and to be

void.

(iii) declare that the classification of the petitioner and similarly

placed candidates into a separate class for the purpose of enrolment

as advocate on the basis of retirement from service and attaining the

age of superannuation is ultra vires and un constitutional.

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(iv) issue a writ of mandamus directing the respondent No.1 to

refund the amount of Rs. 35000/- collected from the petitioner as

“special fee” on account of his old age and superannuation.

(v) issue a writ of mandamus or any other writ order or direction

directing the respondents 1 and 2 to refund the amounts collected

from the petitioner in addition to and other than the amount of fee

authorized by the Advocate’s Act in Section 24 (1) (f) of the Act.

(vi) issue such other writ, order or direction as this Hon’ble court

may deem fit and proper in the circumstances of the case and in the

interest of justice.

INTERIM RELIEF PRAYED FOR:

“Stay all proceedings pursuant to the amendment as stated in Exhibit -2

to the Rule 2 (a) of the Bar Council of Kerala Rules 1979, till final disposal of

this writ petition.”

Dated this the 4th day of September 2015

Petitioner:

Counsel for the Petitioner

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BEFORE THE HONOURABLE HIGH COURT OF KERALAAT ERNAKULAM

W.P(C) No. of 2015

T. Koshy : Petitioner

Vs.The Bar Council of Kerala and others : Respondents

A F F I D A V I T

I, T. Koshy, Advocate, S/o C.G. Thomas, aged 64 years, Lawyers

Associates,Kalyan Chambers, Chittoor Road,Ernakulam South, Cochin – 682

016, residing at 11-B-Charuvil, PriyaDarshini Nagar, Thevara PO, 682013, do

hereby solemnly affirm and state as follows:-.

1. I am the petitioner in the above case. I know the facts of the case. I

am competent to swear this affidavit.

2. The averments stated in the Writ Petition are all true facts, and the

statements of legal grounds are on the advice of my counsels. I am advised

that there is chance for success in the case. The Exhibits produced are the true

copies of the originals.

3. I have not filed any petition before this Hon’ble Court, or any other

court, claiming for the same relief, which is prayed for in this Writ Petition.

All the facts stated above are true and correct.

Dated this the 4th day of September 2015

Deponent

Solemnly affirmed and signed before me by the deponent who is

personally known to me on this the 4th day of September 2015 at my Office

at Ernakulam.

M. M. Monaye Advocate

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BEFORE THE HONOURABLE HIGH COURT OF KERALAAT ERNAKULAM

W.P(C) No. of 2015

T. Koshy : Petitioner

Vs.The Bar Council of Kerala and others : Respondents

I N D E X -----------------------------------------------------------------------------------------------

Sl.No. Particulars Pages1. Synopsis A - B2. Writ Petition(Civil) 1 - 153. Affidavit 16 4. Exhibit:P1:- True copy of the application format uploaded on 8.4.2015 on the website of the Bar Council of Kerala 17 - 195. Exhibit:P2:- True copy of the letter dated 30.3.2015 showing the amendment made in the Rule 2(a) 20 - 246. Exhibit:P3:- True copy of the relevant portion of the Bar Council of Kerala Rules 1979, showing the Rule 2(a) before its amendment 25 - 277. Exhibit:P4:- True copy of the letter dated 24.4.2015 showing the approval given by the 2nd respondent 288. Exhibit:P5:- True copy of the fee structure published on the web site of the Bar Council of Maharashtra & Goa 29 - 309. Exhibit:P6:- True copy of the fee structure issued by the Secretary, Bar Council of Karnataka for the enrolment in May 2015 31 10. Exhibit:P7:- clipping from the Mathrubhumi Daily dated 15 July 2015 3211. Exhibit:P8:- True copy of the clipping from the Malayala Manorama Daily dated 20th July, 2015 3312. Exhibit:P9:- True copy of the General Assembly resolution

46/91 34 - 35

13. Exhibit:P10:- True copy of the paper as published on the web site 36 - 42

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Dated this the 4th day of September 2015

Counsel for the Petitioner

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Presented on: 04 .09.2015

Sub: Miscellaneous –Advocate’s Act- challenge against the amendment to rule 2(a) of the bar Council of Kerala Rules 1979.

BEFORE THE HONOURABLE HIGH COURT OF KERALAAT ERNAKULAM

W.P(C) No. of 2015

T. Koshy : Petitioner

Vs.The Bar Council of Kerala and others : Respondents

WRIT PETITION (CIVIL) FILED UNDER ARTICLES 226 OF THE

CONSTITUTION OF INDIA

M/S. M.M. MONAYE (M-342), M. PAUL VARGHESE(P-67)

Counsels for the Petitioner

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-A -

BEFORE THE HONOURABLE HIGH COURT OF KERALA

AT ERNAKULAM

W.P(C) No. of 2015

T. Koshy : Petitioner Vs.The Bar Council of Kerala and others : Respondents

S Y N O P S I S

The petitioner is aggrieved over the extraction of a huge sum of money

from him by the respondents for enrolling him as an advocate in May, 2015.

The petitioner is a senior citizen, having retired from the Indian Postal Service

Group A. After retirement he appeared for the Entrance Examination for

admission to LL.B 3 year Course and secured the 15th rank. Thereupon he

joined the Government law College, Ernakulam and passed the LL.B III Year

final examination with first class in January 2015. The petitioner is aggrieved

that, being a senior citizen retired from service, a special fee of Rs. 35000/-

was extracted from him by the respondents for enrolment as advocate over and

above the fee fixed for ordinary candidates. When the petitioner expressed his

intention to make a formal representation against this discriminatory

treatment, he was cautioned that such a move will only result in more hurdles

in his enrolment as the 1st respondent was having unbridled power in the

matter of enrolment. The petitioner was forced to make the application by

paying the additional special fee as demanded by the 1st respondent to get

enrolled. The law governing the Admission and Enrolment of Advocates is

stated in Chapter III of the Advocate’s Act 1961 in sections 16 to 28. The

Parliament in its wisdom has broadly classified the advocates as senior and

other advocates for the purpose of preparation of the roll of advocates and also

classified the candidates for enrolment into SC/ST and other candidates. No

other sort of classification is envisaged in the Act. The enrolment fee for the

State Bar council is fixed at Rs. 600/-and the Bar Council of India at Rs. 150/-

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-B-

as per Section 24 (e) of the Act. The respondents 1 and 2, by way of an illegal

amendment to Rule 2(a) of the Bar Council of Kerala Rules 1979, introduced

a rule by which they could extract exorbitant amounts from candidates like

the petitioner. The respondents have differentiated the candidates for

enrolment as advocates into three more categories, namely, (a) candidates

seeking enrolment after 5 years from the date of passing LL.B, (b) candidates

seeking enrolment after 10 years from the date of passing LL.B and (c)

candidates those who had retired from service seeking enrolment after

attaining the age of superannuation. The classification thus made by the

respondents has no nexus with the object of the Act. The respondents have

resorted to collecting heavy amounts under several heads of fee, other than the

enrolment fee prescribed by the Advocate’s Act. An amount of Rs. 35000/-

has been collected in the name of “special fee” and an amount of Rs. 8200/-

collected in the name of various kinds of unauthorized fee, all of which

actually qualify to be termed as “tax” according to settled law. The petitioners

have no authority to collect taxes and by their actions as afore said, they have

violated Article 265 of the Constitution of India. No other State Bar Council

collects such exorbitant and unreasonable fee as collected by the 1 st

respondent. Nor does any other State Bar Council levy a penal charge on

superannuated persons seeking enrolment. In Bar Council of Maharshtra v.

Union of India [AIR 2002 Bom220(DB)] the Hon’ble High Court of

Bombay, after observing that the enrolment fee payable under Section 24 (1)

(f) of Advocate’s Act was increased by more than double from Rs. 250/- to

Rs. 600/- by the Parliament by way of amendment by Act No. 70 of 1993

taking into account the financial needs of the Bar Councils, held that the fee so

fixed by Parliament cannot be altered or other kinds of fee permitted to be

recovered from the advocates otherwise than through amendment of the Act.

Dated this the 4th day of September 2015

Counsel for the Petitioner

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APPENDIXEXHIBITS OF PETITIONER

Exhibit:P1:- True copy of the application format uploaded on 8.4.2015 on the website of the Bar Council of Kerala

Exhibit:P2:- True copy of the letter dated 30.3.2015 showing the amendment made in the Rule 2(a) Exhibit:P3:- True copy of the relevant portion of the Bar Council of Kerala Rules 1979, showing the Rule 2(a) before its amendmentExhibit:P4:- True copy of the letter dated 24.4.2015 showing the approval given by the 2nd respondent Exhibit:P5:- True copy of the fee structure published on the web site of the Bar Council of Maharashtra & Goa Exhibit:P6:- True copy of the fee structure issued by the Secretary, Bar Council of Karnataka for the enrolment in May 2015 Exhibit:P7:- clipping from the Mathrubhumi Daily dated 15 July 2015 Exhibit:P8:- True copy of the clipping from the Malayala Manorama Daily dated 20th July, 2015 Exhibit:P9:- True copy of the General Assembly resolution 46/91

Exhibit:P10:- True copy of the paper as published on the web site