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The High Court of Gujarat had rejected the Writ Petition filed on increase the levy of enrollment fee by the State Bar Council which had also challenged the right of Bar Council of India and Bar Council of Gujarat under the Advocates Act, 1961 and Bar Council of India Rules, 1975. The merits of the case wherein the petitioner had filed a Writ of Mandamus to the State Bar Council for the reason of processing of the petitioner’s application with registration and enrollment with a fee of Rs. 750/-. The third prayer in the writ claiming that abovesaid Rules 9 to 11 in Part-IV, Chapter – III is declared to be ultra vires. The cause of action of the case is when the petitioner’s application was not registered due to non-deposition of the required fee amount to the State Bar Council. The petitioner contended that the legality and the validity of the rules must be challenged as the Bar Council of India and Bar Council of Gujarat make rules exceeding the eligibility criteria enumerated in the said Act. In re Rajesh Manibhai Patel V. Bar Council of Gujarat had dismissed the petition and criticised the advocate petitioner who had filed the writ petition. The court held that the decision made in re Sudeer V. Bar Council of India & Anr requires reconsideration if section 24(3)(d) of the said Act could be validly prescribed by the BCI according to the petitioner. The bench also noted that the Bar Council of India and the State Bar Council had been empowered by sections 28 r/w 49 of the Advocates Act, 1961 to make rules which was claimed to be an act of ultra vires by the petitioner. The bench also added that the 20% of the fee collected by the Bar Council is instituted for the welfare of the Advocates u/s 24(1)(f) of the said Act. The bench added that “…"Even on the principles of harmonious construction of various provisions of the Act and the Rules, the action of Bar Council of India in increasing the rate of fee cannot be said unreasonable, unauthorised or ultra vires”. The court concluded that “The Act of 1961 provides entitlement to levy enrollment fees for enrollment as an advocate. Prescribing the right to levy fees be considered to be fundamental and it cannot be whittled by any rule. Prescribing the rate of fees is merely ancillary and can be modified by the Rules as apparent from Section 49 of the Act of 1961. The harmonious construction between the Act and the Rules which governs the field of operation of both the provisions is that the rate as mentioned in Section 24 is to be treated as bare minimum fees which is always amenable for further increase. Since the petitioner has not challenged the validity of either the provisions of Section 24 or 49 of Act of 1961 or Rules framed thereunder, both the provisions shall prevail under the prevail.”
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