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Orissa HC grants ‘final opportunity’ to State Bar Council to file response to petition challenging ‘exorbitant fees’ charged for registration

A bench dividing the Orissa High Courtincluding Chief Justice Dr. S. Muralidhar and Judge Radha Krishna Pattanaikgranted a four-week extension to the Odisha State Bar Council (“OSBC”) as a final opportunity to file its rejoinder in a motion filed by Lawyer Binayak Subudhiin which he challenged the “exorbitant fees” charged by the Council with enrolling law graduates on the state bar registry as attorneys.

Notably, the OSBC charges approximately Rs. 42,100/- to enroll general category law graduates under the age of 25. The amount turned out to be the The highest among all the State Bar Councils in the nation. It should be mentioned that this is double the amount of fees charged by some state bar associations.

The petitioner, who is a law graduate and a lawyer, was represented by Lawyer Anurag Pati. The following grounds have been invoked to dispute the above amount.

Violation of statutory mandates:

The petitioner alleged that the OSBC had flagrantly violated the law regarding the fixing of the amount of the registration fee in direct violation of the stipulated fee, as provided under Paragraph 24(1)(f) of the Advocates Act, 1961. He stated that the statutory fees of Rs. 750/- together with stamp duty, if any, payable as prescribed by law, is disregarded by the OSBC in determining the registration fee amounting to Rs. 42,100/-, using its regulatory powers under the law, which is unlawful, arbitrary and out of the intent and purpose of the Lawyers Act.

Further, he alleged that the OSBC deliberately overlooked the Rule 15 of PART IX of the RCC Rule and Rule 4(f) of Chapter IV of the Odisha Bar Council Rules, 1989. The said provisions reiterate the registration fee at Rs. 750/- together with stamp duty, if any, payable which is predetermined by the legislature in the Lawyers Act.

Obligation to pay for social assistance schemes:

The petition also noted that the respondents misconstrued their powers under Section 6(2) of Advocates Act, 1961, creating several welfare funds and schemes and requiring applicants to contribute to these funds during the application process. The word “may” in Section 15(1) of the Odisha Advocates Welfare Fund Act 1987, states that admission to the funds created by the Council is at the choice of the applicant, he added. However, in reality, the OSBC requires applicants to compulsorily pay the social assistance funds and schemes it has in place upon registration, which it says is beyond the Board’s powers. and, therefore, is illegal and in clear violation of the Solicitors Act.

No power to make rules:

It was also stated that the OSBC has no jurisdiction to make rules regarding the conditions stipulated in Paragraph 24(1)(f) Lawyers Act, under cover of a normative power in the field covered by Paragraph 24(1)(e) and Paragraph 28(2)(d) to interpret in any way, to empower itself to levy such additional, exorbitant and mandatory fees against the already pre-determined legislative mandate with respect to registration fees.

He also stated that such a rule established by the OSBC, which is in direct contrast to Paragraph 24(1)(f) of the Act, cannot be rendered valid by reason only of the purported endorsement granted to it by the Bar Council of India (“BCI”) by recourse to the provisions contained in Subsection 28(3). Therefore, such exercise of regulatory powers beyond subordinate legislation would simply be illegal and beyond the scope of regulatory powers, he noted.

Violation of Article 14:

Furthermore, the petitioner alleged that he violated the right to equality and equal treatment before the law of law students and law graduates, as enshrined in the Section 14, by charging illegal, exorbitant and arbitrary tuition fees contrary to the legal mandate of Lawyers Act and also by causing irrational discrimination among law graduates in Odisha State and other states, desirable for register with their respective bar councils by charging them twice or more the amount of registration fees charged by other state bar associations. It also causes serious discrimination against those who belong to an economically weaker section by indirectly limiting them by charging such excessive registration fees.

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

It has also been alleged that the collection of registration fees challenged by the OSBC is excessive and disproportionate and also violates the fundamental right to practice a profession or to engage in a profession, trade or business such as enshrined in Article 19(1) (g). Therefore, the OSBC, by indirectly restricting applicants from practicing their profession or pursuing their legal career, by charging such exorbitant registration fees, restricts their rights under Sections 19(1)( g) and 21 of the Constitution.

Pray:

The petitioner urged the Court to declare that the registration fees charged by the OSBC exceed the fees determined by law, which is illegal, arbitrary, exorbitant, discriminatory and contrary to the provisions of the Lawyers Act. Consequently, to order the Council to re-set the registration fees in strict compliance with the Sections 6(2), 24(1)(e) & (f), 28(1)(d) & (e) & (2) & (3) Solicitors Act, Rule 15 of PART- IX of the BCI Rules, Rule 4(f) of Chapter IV of the Orissa State Bar Council Rules, 1989, and Section 15(1) of the Welfare Fund Act 1987 Odisha lawyers.

In addition, he requested an instruction to the OSBC to make membership in all social protection funds and schemes created exclusively by it as optional and not mandatory or a pre-requisite for registration.

The Court scheduled the case to be heard on 11e October 2022. It asked the Commission to file its reply in rejoinder before the above-mentioned date.

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

Case no: WP(C) No. 11144 of 2022

Order dated: 3rd August 2022

Koram: Dr. S. Muralidhar, CJ. & RK Pattanaik, J.

Counsel for the Applicant: MA Pati, lawyer

Counsel for Respondents: Mr. PK Parhi, Assistant Solicitor General of India, Mr. AP Bose and Mr. Amitav Das, lawyers

Click here to read the petition

Click here to read the appendix (comparative table)