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The State of U.P. and anr. Vs. the Bar Council of U.P. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 143 of 1964
Judge
Reported inAIR1971All186
ActsConstitution of India - Articles 246; Uttar Pradesh Taxation Laws Amendment Act, 1969 - Sections 3; Stamp Act - Schedule - Article 30; Advocates Act, 1961
AppellantThe State of U.P. and anr.
RespondentThe Bar Council of U.P.
Appellant AdvocateK.N. Singh, Adv.
Respondent AdvocateP.C. Gupta, ;S.B. Mittal, ;S.N. Kacker, ;S.K. Gupta, ;J. Sarup, ;S.N. Shukla, ;K.N. Tripathi, ;Onkar Nath and ;S.C. Khare, Advs.
DispositionAppeal allowed
Excerpt:
.....u.p. taxation law amendment act, 1969 - no provision in the advocates act in regard to levy of stamp duty - it cannot be said that section 3 clause iii of the amendment act 1969 is repugnant to any provision in the advocates act. (ii) intention of the legislature - the intention of the parliament should be inferred from the language of the advocates act - advocates act, 1969 - joint committee report is of no use in interpreting the language of the advocates act. - - if the amendment act, 1969 is intra vires the state legislature the petition of the bar council shall fail as section 3 (iii) is retrospective. list iii deals with subjects in relation to which parliament as well as the state legislature (subject to certain conditions) may make a law. but the argument proceeds..........shall be necessary for a person seeking enrolment as advocate to pay in respect of enrolment the stamp duty, if any, chargeable under the indian stamp act.2. section 3 of the stamp act is the charging section. it provides that the instruments mentioned in schedule i-b of that act shall be chargeable with the stamp duty of the amount indicated in that schedule. article 30 of schedule i-b, in its application to our state, provides for the stamp duty of rs. 750/- on the 'entry as an advocate.....on the roll ofany high court' under the bar councils act, 1926.3. in 1961 parliament passed the advocates act. section 50 repeals the bar councils act and provides for enrolment of persons entitled to practise in the high court by a body known as the bar council. it provided that the persons.....
Judgment:

Dwivedi, J.

1. The Bar Councils Act 1926, created a class of lawyers entitled to practice in the High Court. The Act designated these lawyers as Advocates. They were to be enrolled by the High Court. The proviso to Section 8(2) ofthe Act provided that it shall be necessary for a person seeking enrolment as advocate to pay in respect of enrolment the stamp duty, if any, chargeable under the Indian Stamp Act.

2. Section 3 of the Stamp Act is the charging section. It provides that the instruments mentioned in Schedule I-B of that Act shall be chargeable with the stamp duty of the amount indicated in that schedule. Article 30 of Schedule I-B, in its application to our State, provides for the stamp duty of Rs. 750/- on the 'entry as an Advocate.....on the roll ofany High Court' under the Bar Councils Act, 1926.

3. In 1961 Parliament passed the Advocates Act. Section 50 repeals the Bar Councils Act and provides for enrolment of persons entitled to practise in the High Court by a body known as the Bar Council. It provided that the persons enrolled by the State Bar Council shall be called as Advocates. The repeal of the Bar Councils Act and the enactment of the Advocates Act necessitated an amendment in Article 30 of Schedule I-B of the Stamp Act. Accordingly the State legislature enacted the U. P. Stamp (Amendment) Act, 1962. The amendment imposed a stamp duty of Rs. 500/- on the 'entry as an Advocate on the State roll of Uttar Pradesh under the Advocates Act, 1961.'

4. Thereupon the State Bar Council filed a writ petition in this Court. The Bar Council challenged the constitutionality of the U. P. Stamp (Amendment) Act, 1962. This petition was heard by a learned Single Judge. He held that the State legislature has got no power to enact the aforesaid Act. According to him the power to impose stamp duty of any amount on the entry of an Advocate in the State roll is vested in Parliament. So the learned Judge allowed the writ petition and declared that the U. P. Stamp (Amendment) Act, 1962, is ultra vires the State legislature.

5. The present appeal has been filed by the State of U. P. and the Junior Secretary, Board of Revenue, against the judgment of the learned Judge. During pendency of the appeal the State legislature has passed the Uttar Pradesh Taxation Laws Amendment Act, 1969 (U. P. Act No. XI of 1969) (hereinbelow called the Amendment Act, 1969), Section 1 (3) of this Act provides that the Act shall come into force on such date as the State Government may by notification in the gazette appoint in that behalf, and different dates may be appointed in respect of different provisions. Section 3 of this Act makes amendments in Schedule I-B of the Stamp Act. Clause (iii) of Section 3 amends Article 30. The amendment is this :--

'Certificate of enrolment under Section 22 of the Advocates Act, 1961, issuedby the State Bar Council of Uttar Pradesh.'

This amendment is retrospective and shall be deemed always to have been substituted. By a notification in the Gazette 'Extraordinary' dated September 13, 1969, the Governor appointed October 1, 1969, as the date on which Section 3 would come into force. So Section 3 (iii) came into force on October 1, 1969. Now the constitutionality of this measure also is impeached before us. Indeed, on account of the Amendment Act 1969 it is no longer necessary for us to express any opinion on the constitutionality of the 1962 Amendment Act which has been adjudged to be void by the learned Judge. If the Amendment Act, 1969 is intra vires the State legislature the petition of the Bar Council shall fail as Section 3 (iii) is retrospective. It may further be mentioned that the reasons given by the learned Judge in support of his opinion against the 1962 Amendment Act may equally be urged in support of the attack against the Amendment Act, 1969.

6. The power of the legislature to legislate with respect to certain matters is derived from Article 246 of the Constitution. The topics on which the legislature (Parliament or State legislature) may legislate are enumerated in the three lists of the Seventh Schedule to the Constitution, List I deals with subjects in relation to which Parliament may make a law. List II deals with subjects in relation to which the State legislature may make a law. List III deals with subjects in relation to which Parliament as well as the State legislature (subject to certain conditions) may make a law. Each of those three Lists contains in entry relating to the subject of stamp duty. Entry 91 of List I mentions '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. 'Entry 63 of List II mentions' rate of stamp duty in respect of documents other than those specified in the provisions of List I with regard to rates of stamp duty, 'Entry 44 of List III mentions 'stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duty.'

One more Entry from List I may be mentioned for the learned Judge has relied on it in support of his conclusion. Entry 78 of List I reads 'Constitution and organisation of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practice before the High Courts'.

7. According to Sri Khare the three Entries regarding stamp duty in the three Lists dichotomise the wholesubject-matter of stamp duty on non-judicial documents into; (1) the imposition of a stamp duty on a document; and (2) the fixation of the rate of stamp duty on the document. The subject-matter of the imposition of the stamp duty on a document is enumerated in Entry 44 of List III. It is not necessary to discuss the scope of this Entry in this case.

8. The subject-matter of the rate of stamp duty is enumerated in Entry 91 of List I in relation to certain documents and in Entry 3 of List II in relation to documents other than those already specified in Entry 91 of List I. So the field of the rate of stamp duty is partitioned between Parliament and the State legislature. The larger portion of the field is, however, allotted to the State legislature.

9. Evidently, Section 3 (iii) of the Amendment Act, 1969 is prima facie intra vires the State legislature for the subject-matter of this particular enactment falls within Entry 63 of List II. Nevertheless, the contention is advanced that it is beyond the power of the State legislature.

10. It is said that as under Entry 78 of the List I Parliament alone can legislate with respect to persons entitled to practice before the High Court, so Parliament alone may provide for enrolment of persons entitled to practise before the High Court. So far there can be no disagreement. But the argument proceeds further to the effect that in the power of Parliament to legislate with respect to persons entitled to practise before the High Court under Entry 78 of List I, there is necessarily implicit the power to legislate with respect to the imposition of stamp duty as well as the fixation of the rate of such stamp duty on the enrolment of a person entitled to practise before a High Court.

11. The acceptance of this argument will render many of the taxing Entries in the three Lists superfluous. They can be read in the other Entries in the three Lists. It seems to us that it is a vital flaw in the argument. An argument which renders a constitutional provision superfluous could not ordinarily be accepted.

12. Entry 97 of List I also goes against this argument. Entry 97 reads thus :--

'Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists.' If the argument is legitimate, then one would not expect the makers of the Constitution to mention in Entry 97 specifically the words 'including any tax not mentioned in either of those Lists.'

These words strongly militate with the argument of implied power of taxation. InM. P. V. Sundararamier & Co. v. The State of Andhra Pradesh, AIR 1958 SC 468, the Supreme Court has observed :--

'Under the scheme of the Entries in the Lists, taxation is regarded as a distinct matter and is separately set out.'

So it is not possible to read in Entry 78 of List I the implied power to impose the stamp duty and to fix the rate of stamp duty with respect to the enrolment of a person entitled to practise in the High Court.

13. Counsel for the Bar Councilhas submitted that Section 3 (iii) of the Amendment Act, 1969, is void for repugnancy. The argument proceeds in this manner. The proviso to Section 3 (2) of the Bar Councils Act provides that there shall be levy on the enrolment of an Advocate on payment of such stamp duty as may be prescribed. Article 30 of Schedule I-B to the Stamp Act provides the rate of stamp duty payable on the entry of the name of a person in the roll of Advocates. The Advocates Act, 1961, repealed the Bar Councils Act. Counsel referred us to a passage in the report of the Joint Committee. It appears from, that passage that the Joint Committee was of the view that the power to fix the rate of stamp duty on the entry of a person's name in the Advocates' roll lay with the State legislature and they expressed the hope that the State legislature might be persuaded not to impose any duty on the entry of a person's name in the Advocates' roll. Counsel says that Parliament did not incorporate any provision analogous to the provision of Section 8(2) of the Bar Councils Act. So Parliament intended that no stamp duty should be imposed on the entry of a person's name in the Advocates' roll. Then he says that the field is occupied and the U. P. State legislature could not enact Section 3 (iii) of the Amendment Act, 1969.

14. Firstly, we are unable to perceive any repugnancy between Section 3 (iii) of the Amendment Act, 1969, and any provision of the Advocates Act. The report of the Joint Committee is of no assistance in interpreting the Advocates Act and in finding out the intention of Parliament. The intention of Parliament should be inferred from the languages of the Advocates Act itself. Admittedly, there is no provision in the Advocates Act with regard to the imposition of a stamp duty on the entry of a person's name in the Advocates' roll. There is no provision either levying or prohibiting the levy of a stamp duty. If Parliament had intended that no stamp duty should be levied, it could have easily inserted a provision in the Advocates Act prohibiting the levy of the stamp duty. The omission of such a provision leads to the inference that Parliament left it opento the State legislatures to make their own choice. When there is no provision in the Advocates Act in regard to the levy of a stamp duty, we fail to understand how it can be said that Section 3 (iii) of the Amendment Act, 1969, is repugnant to any provision in the Advocates Act.

Counsel relied on the cases of Ch. Tika Ramji v. State of U. P., AIR 1956 SC 676 and State of Orissa v. M. A. Tulloch & Co., AIR 1964 SC 1284. The first case explains what is meant by repugnancy. It hardly helps counsel in his argument. The second case is also of no help to him in the circumstances of our case. Counsel relied on a passage in the decision of the second case which runs as follows :--

'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.'

As already pointed out by us, the absence of a provision in the Advocates Act regarding the imposition of the stamp duty does not necessarily evidence an intention of Parliament to the effect that no stamp duty should be charged on the enrolment of a person as an Advocate. We have already pointed out that Parliament might have decided that the whole thing should be left at large for decision by the State legislatures themselves.

15. Assuming that the counsel's argument of repugnancy is correct, even then the argument is ineffective. Article 254(2) of the Constitution provides that where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. The assent of the President was given to the Amendment Act, 1969, on September 28, 1969. Accordingly, notwithstanding any repugnancy Section 3 (iii) of the Amendment Act 1969, will prevail in this State.

16. Another argument of counsel for the Bar Council is that as no provision analogous to the proviso to Section 8(2)of the Bar Councils Act has been enacted by the State legislature before enacting Section 3 (iii) of the Amendment Act, 1969, the amendment is ineffective. We are wholly unable to appreciate this argument. The State legislature has amended Article 30 of Schedule I-B of the Stamp Act. The stamp duty mentioned against this article is chargeable by virtue of Section 3 of the Stamp Act.

17. It is then said that under Entry 63 of List II the State legislature can prescribe rates of stamp duty 'in respect of documents.' A document, according to the learned counsel means an instrument affecting some right or interest in any property or money. When we invited the attention of the learned counsel to the word 'proxies' in Entry 91 of List I, this argument was given up. Counsel then said that documents in Entry 63 of List II means an instrument affecting some right or interest. In other words, counsel seeks to give a narrow interpretation to the word 'documents' in Entry 63 of List II. It is well known that the text of the Constitution is to be construed liberally. It is also well known that the words in various Entries in the three lists of the Seventh Schedule are to be given their widest amplitude. Accordingly, the word 'document' in Entry 63 of List II should be given its broadest meaning. The 'Certificate of enrolment' mentioned in Section 3 (iii) of the Amendment Act, 1969 will be a document within the meaning of Entry 63 of List II. The 'Certificate of enrolment' is issued under Section 22 of the Advocates Act. It is a token of the fact of enrolment of a person as an Advocate under the Advocates Act.

18. In the result, the appeal is allowed and the judgment of the learned Single Judge is set aside. The writ petition is dismissed with costs which we fix at Rs. 300/-.


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