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1989 Supreme(Ker) 430
Judges : K.A.NAYAR
K.R.Kurup - Appellant
Versus
S.T.A.T - Respondent
Case No : O.P. No. 2025,11479 of 1985, 10694 of 1987
Decided On : 11/07/1989
Advocates Appeared :
N.N. Sugunapalan; K.K. Babu; K.V. Sadanandha Prabhu; For Petitioners C.K. Sivasankara Panicker; Government Pleader; For Respondents
The main legal point established in the judgment is the strict interpretation of the exemption provision in the Advocates' Welfare Fund Act, considering the purpose of the legislation as a welfare measure for the legal profession, and the definition of 'Government' in relation to the exemption.
Headnote:
Advocates' Welfare Fund Act - Standing Counsel - S.23(1) - S.23(2) - S.23(3) - S.30 of the Advocates Act - Proviso to S.23 - Interpretation of exemption provision - Purpose of the legislation - Strict construction of exemption provision - Definition of 'Government' - Standing Counsel not appearing on behalf of the Government - Requirement to affix Welfare Fund stamps on vakalaths and memoranda of appearance
Fact of the Case:
The case involved a dispute regarding the requirement for Standing Counsel to affix stamp under the Advocates' Welfare Fund Act on the memoranda filed before the State Transport Appellate Tribunal (STAT). The petitioners contended that they were not bound by law to file a vakalath or any memo of appearance and sought a declaration that they are not required to affix Welfare Fund Stamp on the memoranda of appearances as long as they are Standing Counsel for the State Transport Authority and Regional Transport Authorities.
Finding of the Court:
The court found that the petitioners, as members of the Advocates' Welfare Fund, were required to affix Welfare Fund stamps on the vakalaths and memoranda of appearance filed by them before the STAT. The court held that the exemption provision in the Act, which exempted memoranda of appearance filed by advocates appearing on behalf of the Government, did not apply to the petitioners as Standing Counsel for the State Transport Authority and Regional Transport Authorities.
Issues: The main issue was whether the Standing Counsel were required to affix Welfare Fund stamps on the memoranda of appearances filed by them in STAT, and whether they were exempted under the proviso to S.23(1) of the Advocates' Welfare Fund Act.
Ratio Decidendi: The court interpreted the exemption provision strictly, considering the purpose of the legislation as a welfare measure for the legal profession. It held that the exemption for memoranda of appearance filed by advocates appearing on behalf of the Government did not extend to the petitioners as Standing Counsel for the State Transport Authority and Regional Transport Authorities. The court also discussed the definition of 'Government' and concluded that the petitioners did not fall within the scope of the exemption.
Final Decision: The Original Petitions were dismissed, and the petitioners were required to affix Welfare Fund stamps on the vakalaths and memoranda of appearance filed by them. No order as to costs was made.
1. The petitioner is O.P.2025 of 1985, Shri. K.R. Kurup a practising advocate of this Court has been appointed as Standing Counsel for Regional Transport Authorities and State Transport Authority in the State Transport Appellate Tribunal for three years. After the expiry of the said term of three years on 15-7-1985, Shri. K.K. Dharmalal, Advocate who is the petitioner in O.P. 11479 of 1985 was appointed as Standing Counsel for Regional Transport Authorities and State Transport Authority in the STAT for a period of two years. His term of appointment expired on 27-11-1987 and thereafter Shri. P. Santhoshkumar, Advocate was appointed as Standing Counsel for a period of two years. The short question arising for consideration is whether the Standing Counsel is required to affix stamp under the Advocates' Welfare Fund Act on the memoranda filed before the STAT.
2. The petitioners in the Original Petitions took the stand before the STAT that they are not bound by law either to file a vakalath or any memo of appearance. Alternatively it is contended that the memoranda of appearances filed by the petitioners can be considered as exempted under the proviso to S.23(1) of the Advocates' Welfare Fund Act. The first respondent took the stand that the petitioners are not appearing on behalf of the Government and therefore they were directed to file memoranda of appearance duly stamped. This order of the STAT dated 26-2-1985 is produced as Ext.P2 in O.P. 2025 of 1985, and 10694 of 1987. Therefore there is a prayer in the said Original Petitions to quash Ext.P2 also. The main prayer canvassed on behalf of the petitioners at the time of hearing is for a declaration that the petitioners are not bound to affix Welfare Fund Stamp on the memoranda of appearances that are to be filed by them in STAT so long as they are Standing Counsel for the State Transport Authority and Regional Transport Authorities.
3. S.23 of the Kerala Advocates' Welfare Fund Act, 1980 is as under:
"23. Vakalath to bear stamps:-(1) Every member of the Fund shall affix one stamp on every vakalath filed by him and no vakalath shall be filed before or received by any court, Tribunal or other authority unless it is so stamped.
Provided that nothing contained in this sub-section shall apply in respect of any memorandum of appearance filed by an Advocate appearing on behalf of the Government.
2. The value of the stamp shall neither be costs in the case nor be collected in any event from the client.
3. Any contravention of the provisions of sub-section (2) by any member shall disentitle him to the benefits of the Fund and the Trustee Committee shall report such instances to the Bar Counsel for appropriate action."
S.23 has been amended by Act 21 of 1989 with effect from 6th May, 1989 as under:
"9. Amendment of S.23:-In S.23 of the principal Act, for sub-section (1), the following sub-section shall be substituted, namely:
"(1) Every vakalath filed by an Advocate shall be affixed with a stamp in addition to the court fee stamps affixed thereon, and no vakalath shall be valid unless so stamped.
Explanation: If two or more Advocates jointly appear by a single vakalath separate stamps shall be affixed by each of such Advocates."
4. In these petitions I am concerned with the unamended Section. S.23 requires every member of the fund to affix one stamp on every vakalath filed by him and no vakalath shall be filed before or received by any court, Tribunal or other authority unless it is so stamped. The petitioners are members of the Fund. Under S.2(n) of the Act'Vakalath' has been defined to mean vakalathnama and includes memorandum of appearance or any other document by which an advocate is empowered to appear or plead before any court, Tribunal or other authority. The contention that under S.30 of the Advocates Act every advocate shall be entitled as of right to practice throughout the territory of India and therefore they are entitled to appear even without a vakalath is not tenable. In
