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Orissa HC Grants 'Last Opportunity' To State Bar Council To File Reply In Petition Challenging 'Exorbitant Fees' Charged For Enrolment

Jyoti Prakash Dutta
14 Aug 2022 3:35 PM GMT
Orissa HC Grants Last Opportunity To State Bar Council To File Reply In Petition Challenging Exorbitant Fees Charged For Enrolment
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Enrollment of Advocates (Representational Image)

A Division Bench of the Orissa High Court, comprising Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik, has granted four weeks' time to the Odisha State Bar Council ('OSBC') as a last opportunity to file its reply rejoinder in a petition filed by Advocate Binayak Subudhi, wherein he has challenged the 'exorbitant fees' charged by the Council to enrol law graduates in the State Bar Roll as advocates.

Notably, the OSBC charges around Rs. 42,100/- to enrol general category law graduates, who are below the age of 25 years. The amount was shown to be the 'highest' among all the State Bar Councils of the nation. Pertinent to mention, it is double the amount of the fees charged by some of the State Bar Councils.

The petitioner, who is a law graduate and lawyer, was represented by Advocate Anurag Pati. The following grounds were taken for challenging the aforesaid amount.

Violation of Statutory Mandates:

The petitioner alleged that the OSBC has blatantly violated the law regarding fixing the amount of enrolment fee in direct contravention with the stipulated fee as has been provided under Section 24(1)(f) of the Advocates Act, 1961. He stated that the statutory fees of Rs. 750/- along with stamp duty, if any, chargeable as prescribed by the Act, is overlooked by the OSBC while determining the enrolment fee amounting as Rs. 42,100/-, using its rule making powers under the Act, which is illegal, arbitrary, and de hors of the intent and objective of the Advocates Act.

Further, he alleged that the OSBC has deliberately neglected the Rule 15 of PART-IX of the BCI Rule and Rule 4(f) of Chapter IV of the Odisha Bar Council Rules, 1989. The said provisions reiterate the amount for enrolment as Rs. 750/- along with stamp duty, if any, chargeable which is predetermined by the legislature in the Advocates Act.

Compulsion to Pay for Welfare Schemes:

The petition also noted that the respondents have wrongly interpreted their powers under Section 6(2) of Advocates Act, 1961, creating several welfare funds and schemes and making them mandatory for the applicants to contribute to such funds during the enrolment process. The word 'may' in Section 15(1) of the Odisha Advocates Welfare Fund Act, 1987, expounds that admission to the funds created by the Council is at the option of the applicant, it added. However, in reality, the OSBC requires the applicants to compulsorily pay for the welfare funds and schemes made by it during the enrolment, which it alleged to be beyond the scope of powers of the Council and hence, is illegal and in gross violation of the Advocates Act.

No Power to Frame Rules:

It was also stated that the OSBC does not have the competence to frame any rules in respect of conditions stipulated in Section 24(1)(f) of the Advocates Act, under the guise of rule-making power in respect of the field covered by Section 24(1)(e) and Section 28(2)(d) to interpret in any manner, to empower themselves to levy such an additional, exorbitant and mandatory fees against the legislative mandate already pre-determined with respect to the enrolment fees.

It also stated that such a rule made by the OSBC, which is in direct contrast to Section 24(1)(f) of the Act, cannot be made valid merely on account of the so-called approval granted thereto by the Bar Council of India ('BCI') by resorting to the provisions contained in Section 28(3). Hence, such exercise of the rule making powers in excess of the subordinate legislation would be nothing short of being illegal and beyond the scope of rule-making powers, it noted.

Violation of Article 14:

Further, the petitioner alleged that it has violated the right to equality and equal treatment before the law of the law students and law graduates as enshrined in Article 14, by charging illegal, exorbitant and arbitrary enrolment fees in contrast to the statutory mandate of Advocates Act and also by causing irrational discrimination among the law graduates from State of Odisha and other States, desirable to get themselves enrolled with their respective Bar Councils by charging them twice or more the amount of enrolment fees that is charged by other State Bar Councils. It is also causing serious discrimination against those belonging from economically weaker section by indirectly limiting them by charging such excessive enrolment fees.

Violation of Articles 19(1)(g) & 21:

It was also alleged that the collection of the impugned enrolment fee by the OSBC is excessive and disproportionate and that it is also violative of the fundamental right to practise any profession or carry on any occupation, trade or business as enshrined under Article 19(1)(g). Therefore, the OSBC by indirectly limiting the applicants to carry on their profession or further their legal career, by charging such exorbitant enrolment fees, restricts their rights enshrined under Articles 19(1)(g) and 21 of the Constitution.

Prayer:

The petitioner urged the Court to the declare that enrolment fees charged by the OSBC is in excess of the fees determined statutorily, which is illegal, arbitrary, exorbitant, discriminatory and contrary to the provisions of the Advocates Act. Therefore, to direct, the Council to freshly determine the enrolment fees in strict adherence with Sections 6(2), 24(1)(e) & (f), 28(1)(d) & (e) & (2) & (3) of the Advocates Act, Rule 15 of PART-IX of the BCI Rules, Rule 4(f) of Chapter IV of Orissa State Bar Council Rules, 1989, and Section 15(1) of the Odisha Advocates Welfare Fund Act, 1987.

Further, it requested for a direction to the OSBC to make membership in any funds and welfare schemes made exclusively by it as optional and not mandatory or condition precedent for enrolment.

The Court has listed the matter to be heard on 11th October, 2022. It has required the Council to file its reply rejoinder before the above date.

Case Title: Binayak Subudhi v. Union of India & Ors.

Case No.: W.P.(C) No. 11144 of 2022

Order Dated: 3rd August 2022

Coram: Dr. S. Muralidhar, CJ. & R.K. Pattanaik, J.

Counsel for the Petitioner: Mr. A. Pati, Advocate

Counsel for the Respondents: Mr. P.K. Parhi, Assistant Solicitor General of India, Mr. A.P. Bose and Mr. Amitav Das, Advocates

Click Here To Read Petition

Click Here To Read Annexure (comparative chart)



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