2009 Supreme(Bom) 1740

High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. SWATANTER KUMAR & THE HONOURABLE MR. JUSTICE J.P. DEVADHAR
LAWYERS COLLECTIVE
Versus
Bar Council of India & Others
WRIT PETITION NO.1526 OF 1995
Decided on : 16-12-2009

Headnote:Advocates Act, 1961 - Sections 29 and 33 - Foreign Exchange Regulation Act, 1973, Section 29 - Writ petition - Filed in public interest - As permission granted by RBI to Foreign Law Firms, respondents 12 to 14 to open liaison office in India illegal and in gross violation of provisions of Act of 1961 - Held - Foreign law firms not enrolled as Advocates under Advocates Act, 1961 - No permission can be granted to foreign law firms respondents 12 to 14 to start liaison activities in India under Section 29 of Act 1973 - Permission granted by RBI to Foreign Law Firms illegal and not sustainable - Set aside - Respondents 12 to 14 bound to follow provisions of Advocates Act - Petition disposed off. - In the present case, the core dispute is with reference to the permission granted by RBI to the respondents No. 12 to 14 to open their liaison office in India under Section 29 of the 1973 Act. The respondents No. 12 to 14 are the foreign law firms practising the profession of law in U.K./USA and other parts of the world. However, even after establishing the liaison offices in India, the said foreign law firms have not enrolled themselves as Advocates under the 1961 Act.

       It is not the case of the foreign law firms that the activity carried on by their liaison offices in India are different from the activity carried on by them at their head office and the branch offices world over. In fact it is the specific case of respondents No. 12 to 14 that the main activity at their liaison offices in India was to act as a co-ordination and communication channel between the head office/branch office and its clients in and outside India. Thus the activity carried on by the foreign law firms at their Head Office branch offices and liaison offices in India were inextricably linked to the practise in non litigious matters. Section 29 of the 1973 Act relates to granting permission for business purposes and not for professional purposes and therefore the RBI could not have granted permission to these foreign law firms under Section 29 of the 1973 Act.

       In the Statements of Objects & Reasons for enacting the 1961 Act, it is stated that the main object of the Act is to establish All India Bar Council and a common roll of Advocate on the common roll having a right to practise in any part of the country and in any Court, including the Supreme Court. Thus from the Statement of Objects and Reasons, it is seen that the 1961 Act is intended to apply to (one) person practising the profession of law in any part of the country and (two) person practising the profession of law in any Court including the Supreme Court. Thus from the Statement of Objects and Reasons it is evident that the 1961 Act is intended to apply not only to the persons practising before the Courts but it is also intended to apply to persons who are practising in non litigious matters outside the Court.

       Section 33 of the 1961 Act is a prohibitory section in the sense that it debars any person from appearing before any Court or authority unless he is enrolled as an Advocate under the 1961 Act. The bar contained in Section 33 of the 1961 Act has nothing to do with the persons entitled to be enrolled as Advocates under Section 29 of the 1961 Act. A person enrolled as an advocate under Section 29 of the 1961 Act, may or may not be desirous of appearing before the Courts. He may be interested in practising only in non-litigious matters. Therefore, the bar under Section 33 from appearing in any Court (except when permitted by Court under Section 32 of the 1961 Act or any other Act) unless enrolled as an advocate does not bar a person from being enrolled as an Advocate under Section 29 of the 1961. Act for practising the profession of law in non-litigious matters. The Apex Court in the case of Ex. Capt. Harish Uppal, has held that the right to practise is the genus of which the right to appear and conduct cases in the Court may be a specie. Therefore, the fact that Section 33 of the 1961 Act provides that Advocates alone are entitled to practise before any Court/authority it cannot be inferred that the 1961 Act applies only to persons practising in litigious matters and would not apply to person practising in non-litigious matters. For all the aforesaid reasons, Court hold that in the facts of the present case, the RBI was not justified in granting permission to the foreign law firms to open liaison offices in India under Section 29 of the 1973 Act Court further hold that the expressions to practice the profession of law’ in Section 29 of the 1961 Act is wide enough to cover the persons practising in litigious matters as well as persons practising in non litigious matters and, therefore, to practice in non-litigious matters in India, the respondent Nos. 12 to 14 were bound to follow the provisions contained in the 1961 Act. The petition is disposed of accordingly with no order as to costs.