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B.K. Vittal Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No.1979 of 1964
Judge
Reported inAIR1966Kant138; AIR1966Mys138; ILR1965KAR1037; (1965)2MysLJ119
ActsMysore Stamp Act, 1957; Advocates Act, 1961; Indian Bar Councils Act, 1926; Constitution of India - Article 226
AppellantB.K. Vittal
RespondentState of Mysore and anr.
Excerpt:
.....council whereas article 17 prescribes rate of stamp duty in respect of entry in roll - power of state legislature is taxing power and independent of power exercised by parliament - held, impugned provision not repugnant to section 24. held see paras 3, 17 and 18 - section 24: [anand byrareddy, j] application under section 24 for maintenance - marriage performed as per the provisions of the portuguese civil code application filed under section 24 of the hindu marriage act for maintenance by wife before the family court at belgaum objections by the petitioner/husband with regard to jurisdiction of the family court at belgaum to entertain the application - rejection of objections - challenge to question whether the portuguese family law or hindu law would be applicable to the..........and fifty rupees.' (4) let us first take up the question of legislative competence of the mysore state legislature to enact the impugned provision.(5) there is no dispute that the impugned article is a taxation measure. it takes certificates of enrolment in the roll of advocates. the stamp act taxes documents and not transactions. see halsbury's laws of england (third edition vol. 33, paragraph 480, page 266).(6) under the scheme of our constitution, general powers of legislation do not take within their fold the power to tax. that power is separately conferred--see the decision of the supreme court in m.p. v. sundararaier and co. v. state of andhra pradesh, : [1958]1scr1422 and the decision of this court in d.h. nazareth v. the second gift-tax officer, air 1962, mys 269. every entry.....
Judgment:

K.S. Hegde, J.

(1) In this writ Petition, under Art. 226 of the Constitution, the petitioner challenges the validity of Art. 17 in the schedule to the Mysore Stamp Act 1957, as amended by the Mysore Stamp (Amendment) Act, 192, which come into force on the first day of October 196 (the Amendment Act to be hereinafter referred to as the 'Act'), primarily on the ground that the Mysore Legislature had no legislative competence to enact the said Article and consequently, the same is void, alternatively on the ground that the same being repugnant to the provisions in the Advocates Act, 1961 (Central Act 25 of 1961), it is liable to be struck down. He further prays that this Court may be pleased to issue a Writ of Mandamus to the second respondent, namely, the Mysore State Bar Council, requiring the said Bar Council to enrol him as an Advocate without requiring him to produce non-judicial stamp paper of Rs. 250 as provided in the aforementioned Art. 17.

(2) The petitioner has passed B.Sc., and B.L., degree examinations of the University of Mysore. He has been practising as a legal practitioner. He has been practising as a legal practisioner. He desires to be enrolled as an Advocate. On 28-11-1963, he applied to the Mysore Bar Council to enrol him as an Advocate. Along with his application, he did not production-judicial stamp paper of Rs. 250 as required by the aforementioned Art. 17. He declined to comply with the request of the Bar Council to produce the required stamp paper. His contention has been and still is that the impugned provision is void. As the Bar Council was unable to agree with him on that point, it declined to enrol him as an Advocate. Hence this petition.

(3) The only question that arises for decision in this case is, whether Art. 17 in the schedule to the 'Act' is an invalid provision. The said Article reads:

'Description of instrument. Proper Stamp Duty.

Certificate of enrolment in the roll of advocates prepared and maintained by the State Bar Council under the Advocates Act. 1961 (Central Act. 25 of 1961). Tow hundred and fifty rupees.'

(4) Let us first take up the question of legislative competence of the Mysore State Legislature to enact the impugned provision.

(5) There is no dispute that the impugned Article is a taxation measure. It takes certificates of enrolment in the Roll of Advocates. The Stamp Act taxes documents and not transactions. See Halsbury's Laws of England (Third Edition Vol. 33, Paragraph 480, page 266).

(6) Under the scheme of our Constitution, general powers of legislation do not take within their fold the power to tax. That power is separately conferred--See the decision of the Supreme Court in M.P. V. Sundararaier and Co. v. State of Andhra Pradesh, : [1958]1SCR1422 and the decision of this Court in D.H. Nazareth v. The Second Gift-Tax Officer, AIR 1962, Mys 269. Every Entry in the three Lists in Schedule VII of the Constitution, except Entry 97 in List I, should be given the widest possible construction. This principle applies both to Entries relating to general powers of legislation taxation. Vide Nazareth's case, AIR 1962 Mys 269. Bearing these principles of interpretation in mind. Let us now examine the relevant Entries in the Constitution in order to locate the source of power in the matter of fixing the rate of Stamp duty.

(7) The learned counsel for the petitioner, contended that the power to levy stamp duty on any certificate of enrolment in the Roll of Advocates prepared and maintained by the State Bar Council under the Advocates Act, 1961, lies with Parliament in view of Entry 78 of List I in the Seventh Schedule of the Constitution (Union List). That Entry reads:

'Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts.

(8) Sri V.L. Narasimhamurthy, the learned counsel for the petitioner, urged that the power to legislate in respect of persons entitled to practice before the High Court conferred on Parliament, includes the power to tax any transaction falling within that field. This contention has to be rejected in view of the decision of the Supreme Court in Sundararamier and Co's case, : [1958]1SCR1422 and the decision of this Court in Nazareth's case, AIR 1962 Mys 269, referred to earlier. The Entry in question is an Entry relating to general powers of legislation and not one relating to taxation.

(9) Sri Narasimhamurthy next placed reliance on Entry 91 of List I. That Entry reads:

'Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts.'

This is undoubtedly an Entry relating to taxation. But that Entry does not confer the power on Parliament to fix the rate of stamp duty in respect of a certificate of enrolment in the Roll of Advocates. Hence that Entry is irrelevant.

(10) Reliance was next placed on Entry 97, of List I, which vests in Parliament power to legislate in all matters not enumerated in List II or List III including any tax not mentioned in either of those Lists. Recourse to this Entry can only be had as a last resort. We have to first see whether the power in question is included in List II--State List. If the power in question can reasonably be brought in with any of the Entries in List II, then Parliament cannot be held to have the power as a residuary power--See Nazareth's Case, AIR 1962 Mys 269.

(11) According to the learned Advocate General, the State Legislature is vested with the power in question in view of Entry 63 of the State List. The said Entry reads:

'Rates of stamp duty in respect of documents other than those specified in the provisions of List I with regard to rates of stamp duty in respect of documents.'

This Entry clearly empowers the State Government to fix the rate of stamp duty in respect of all documents other than those specified in List I. It is not the case of the petitioner that certificates of enrolment in the Roll of Advocates are specified in the provisions of List I. Therefore, it follows that those for fall within Entry 63 of the State List. This conclusion appears to be an obvious one. Support for that conclusion is also available from the decision of the Special Bench of the Andhra Pradesh High Court In re Rupendra Persad Saigal, AIR 1958 Andh Pra 63 (SB). In that case, Subba Rao, C.J. (as he then was) speaking for the Court observed as follows in paragraph (6) of the judgment.

'The rate of stamp duty on an application for enrolment is not one of the matters provided for in item 91 of List I and Item 44 of List III, i.e., the concurrent list expressly excludes the rates of stamp duty from its scope. Comparative study of the three items, therefore, makes it clear that the power to make laws in respect of rates of stamp duty on matter other than those enumerated in item 91 of List I are within the exclusive power of the State Legislature. The learned counsel, therefore, in our view, is certainly right in his contention that Parliament has no power to make laws in respect of rates of stamp duty payable on an application for enrolment.'

(12) At one stage, it was feebly argued that the power in question is concurrently held both by Parliament and the State Legislature in view of Entry 44 of List III: Parliament having evinced interest in that field, the State Legislature had no competence to enact the impugned provision. This argument was not later pressed. Nor is there any substance in it. The Entry in question reads:

'Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duty.'

(13) For the reasons mentioned above, we hold that the State Legislature was competent to enact the impugned provision.

(14) We next come to the question whether there is any repugnancy between any of the provisions in the Advocates Act and the impugned provision. On he authority of the decision of the Supreme Court in State of Orissa v. M.A. Tulloch and Co., : [1964]4SCR461 , it was contended that repugnancy arises when two enactments both within the competence of the two Legislatures collide and when the Constitution expressly or by necessary implication provides that the enactment of one Legislature has superiority over the other, then to the extent of the repugnancy the one supersedes the other; but two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other; the test of two legislations containing contradictory provisions is not, however, the only criterion of repugnancy, for if a competent Legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, the enactments of the other Legislature whether passed before or after would be overborne on the ground of repugnance; where such is the position, the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation.

(15) It was urged that Parliament in due exercise of its legislative power conferred on it by Entries 78 and 79 of the Union List has enacted the Advocates Act; that enactment purports to be a complete Code by itself as regards the persons entitled to practice before the Supreme Court and the High Courts; hence the law enacted by the State Legislature imposing a restriction on that right must be held to be inoperative in view of Art. 246 of the Constitution. According to the learned Advocate General, the power to tax certificate of enrolment is specifically conferred on the State Legislature; Parliament does not possess that power; Parliament has no competence to limit or take away the power conferred on the State Legislature under Entry 63 of the State List and in fact Parliament did not purport to encroach on the field reserved for the State Legislature.

(16) In support of the contention that the impugned provision is repugnant to the provisions in the Advocates Act, reliance was placed on section 24 of the 'Act'. That section reads:

'(1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfills the following conditions, namely:

(a) he is a citizen of India; Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country:

(b) he has completed the age of twenty one years;

(c) he has obtained a degree in law--

(i)before the appointed day from any University in the territory of India; or

(ii) before the 15th day of August any area which was comprised before that date within India as defined by the Government of India Act, 1935; or

(iii)after the appointed day from any University in the territory of India or elsewhere, if the degree is recognised for the purposes of this Act by the Bar Council of India; or he is a barrister;

(d) he has undergone a course of training in law and passed an examination after such training both of which shall be prescribed by the State Bar Council:

Provided that this clause shall not apply to--

(i) a barrister who has received practical training in England or a person who has obtained a degree in law from any University in India before the appointed day;

(ii) any person who has for at least two years held a judicial office in the territory of India or is a member of the Central Legal Service;

(iii) any person who has for at least two years held a judicial office in any area which was comprised before the 15th day of August, 1947, within India as defined in the Government of India Act, 1935, or has been an advocate of any High Court in any such area;

(iv)any person who has practised before any High Court and who has discontinued practice by reason of his taking up employment under the Government, a local authority or any other person; and

(v) any other class of persons who by reason of their legal training or experience are declared by the Bar Council of India to be exempt from the provisions of this clause;

(e) he fulfils such other conditions as may be specified in the rules made by the State Bar Council under this Chapter;

(f) he has paid an enrolment fee of two hundred and fifty rupees to the State Bar Council.

(2) Notwithstanding anything contained in sub-s. (1) a vakil or pleader or an attorney who is a law graduate, or who is not a law graduate but was entitled to be enrolled as an advocate of a High Court immediately before the appointed day under any law then in force, may be admitted as an Advocate on a State roll if he--

(a) makes an application for such enrolment in accordance with the provisions of this Act, not later than two years from the appointed day; and

(b) fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1).'

This section merely prescribes that before a person can be admitted, as an Advocate in the Roll of the Bar Council he has to fulfil the conditions laid down in that section. It does not directly or indirectly impinge on the power of the State Legislature to levy tax on the certificate of enrolment. section 24 of the Advocates Act, enumerates the conditions to be fulfilled before admission in the Roll. The levy impugned in this case is imposed on the certificate of enrolment. Hence the two enactments deal with different aspects of one transaction. Those aspects are distinct and separate. One does not overlap the other.

(17) In a case like the one before us, no question of repugnance under Article 254 can arise. The impugned provision, as noticed above, was enacted by the State Legislature in pursuance of the legislative power conferred on it under Entry 63 of the State List. That field is exclusively reserved for the State Legislature. Parliament is incompetent to encroach on that field, directly or indirectly. The question of repugnance can only arise in matters where both Parliament and the State Legislatures have legislative competence to pass laws. In other words, it is only when the concerned legislative power is located in the concurrent list the question of repugnancy can arise. As observed by the Supreme Court in Premnath v. State of Jammu and Kashmir, : AIR1959SC749 .

'The essential condition for the application of Article 254(1) is that the existing law must be with respect to one of the matters enumerated in the Concurrent List; in other words unless it is shown that the repugnancy is between provisions of a subsequent law and those of an existing law in respect of the specified matter the Article would be inapplicable.'

The same view was expressed by the Supreme Court in Deepchand v. State of U.P., : AIR1959SC648 . If any repugnancy arises as a result of encroachment by one legislature over the field reserved for the other, then the rule of ultra vires steps in, and the law enacted by the legislature having no competence becomes void. In such matters there is no question of superior legislature and inferior legislature. We see no conflict between section 24 of the Advocates Act and the impugned provision. The former deals with the admission of Advocates on the Roll of the State Bar Council; the latter prescribes the rate of stamp duty in respect of any Entry in the Roll in question. The power exercised by Parliament is a general legislative power. The power exercised by the State Legislature is a taxing power. Each of these powers are independent powers. They do not collide with each other.

(18) For the reasons mentioned above, we are unable to accept the contention that there is any repugnancy between section 24 of the Advocates Act and the impugned provision.

(19) The circumstance that the Indian Bar Councils Act 1926 specifically provided for the payment of stamp duty is a wholly irrelevant one. The State Legislature is not levying stamp duty on the authority given to it by Parliament. It is doing so in exercise of its own power. Hence it requires no concession from Parliament. In view of the Legislative Entries noticed earlier if the Advocates Act had contained a provision similar to the one noticed in the Bar Council Act it would have been incongruous.

(20) A plain copy of the judgment of the Hon'ble Justice D.D. Seth of Allahabad High Court in Civil Mis. Writ No. 118 of 1963 (All) taking a view contrary to the one taken by us was placed before us. Therein, the learned Judge proceeded on the basis that Entries 77 and 78 of the Union List include within themselves the power to tax and as those Entries deal with a special case they exclude Entry 63 of the State List in so far as that Entry takes in persons entitled to practice before the Supreme Court and the High Courts. This view cannot be upheld in view of the decision of the Supreme Court in Sundararamier and Co.'s case : [1958]1SCR1422 . A general legislative power does not carry with it the power to tax.

(21) In the result, this petition fails. It is dismissed. No costs.

(22) Petition dismissed.


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