1

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 at
11-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 Advocates 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

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

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 1 st
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 1 st 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

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 Advocates Act 1961 in sections 16 to 28. Subsection (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

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

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 subsection (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

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
Advocates 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 Chairmans 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 Advocates Act, the
purpose of which is not known. The Bar Council of Kerala has no copy rights

over the Advocates 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 Advocates 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 1 st 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

15000

20,000

2. Special fee( in addition to ordinary fee)

(i)Candidates seeking enrolment
after 5 yrs of passing LL.B

10000

(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 1 st
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,

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.

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 Honble 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

Advocates 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
Advocates Act. In Bar Council of Maharshtra v. Union of India [AIR
2002 Bom220(DB)] the Honble High Court of Bombay, after observing that
the enrolment fee payable under Section 24 (1) (f) of Advocates 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
Honble 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

10

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 Honble Supreme Court of India in

11

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 Honble 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 Honble
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 Mutts 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

12

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 Honble
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 Honble 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 subsection (1) of section 24 of the Advocates Act. In Bar Council of Maharashtra
v. Union of India [AIR 2002 Bom 220 (DB)] the Bombay High Court, while

13

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 Advocates 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 doubleIf the Bar
Council finds that the sum of Rs. 600/- now fixed under clause (f) of subsection (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 Councils 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

14

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 Honble 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.

15

(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 Advocates Act in Section 24 (1) (f) of the Act.
(vi) issue such other writ, order or direction as this Honble 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

16

BEFORE THE HONOURABLE HIGH COURT OF KERALA

AT ERNAKULAM
W.P(C) No.
T. Koshy

of 2015
: 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 Honble 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

17

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
I

: Respondents
X

------------------------------------------------------------------------------------------Sl.No.
Particulars
1.
Synopsis
2.
Writ Petition(Civil)
3.
Affidavit
4.
Exhibit:P1:- True copy of the application format
uploaded on 8.4.2015 on the website of the Bar Council of
Kerala
5.
Exhibit:P2:- True copy of the letter dated 30.3.2015
showing the amendment made in the Rule 2(a)
6.
Exhibit:P3:- True copy of the relevant portion of the Bar
Council of Kerala Rules 1979, showing the Rule 2(a) before
its amendment
7.
Exhibit:P4:- True copy of the letter dated 24.4.2015
showing the approval given by the 2nd respondent
8.
Exhibit:P5:- True copy of the fee structure published on the
web site of the Bar Council of Maharashtra & Goa
9.
Exhibit:P6:- True copy of the fee structure issued by the
Secretary, Bar Council of Karnataka for the enrolment in
May 2015
10.
Exhibit:P7:- clipping from the Mathrubhumi Daily
dated 15 July 2015
32
11. Exhibit:P8:- True copy of the clipping from the Malayala
Manorama Daily dated 20th July, 2015
12. Exhibit:P9:- True copy of the General Assembly resolution
46/91
13.

Exhibit:P10:- True copy of the paper as

published on the web site

Pages
A - B
1 - 15
16
17 - 19
20 - 24
25 - 27
28
29 - 30
31

33
34 - 35

36 - 42

---------------------------------------------------------------------------------------------Dated this the 4th day of September 2015

Counsel for the Petitioner

18

Presented on: 04 .09.2015

Sub: Miscellaneous Advocates Act- challenge against the amendment
to rule 2(a) of the bar Council of Kerala Rules 1979.
BEFORE THE HONOURABLE HIGH COURT OF KERALA
AT ERNAKULAM
W.P(C) No.
T. Koshy

of 2015
: 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

19

-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 OP 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 15 th 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 1 st respondent to get
enrolled. The law governing the Admission and Enrolment of Advocates is
stated in Chapter III of the Advocates 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/-

20

-Bas 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 Advocates 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 Honble High Court of
Bombay, after observing that the enrolment fee payable under Section 24 (1)
(f) of Advocates 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

21

APPENDIX
EXHIBITS 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 amendment
Exhibit: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