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Sir Iqbal Ahmad, Senior Advocate, Supreme Court Vs. the Hon'ble the Chief Justice of High Court of Judicature and Anr. (20.05.1960 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberWrit No. 3700 of 1958
Judge
Reported inAIR1962All391
ActsUttar Pradesh High Courts (Amalgamation) Order, 1948; Constitution of India - Article 19(1); Bar Councils Act - Sections 7 to 16 and 19(2); Supreme Court (Advocates Practice in High Courts) Act, 1951 - Sections 2; ;Government of India Act, 1935 - Sections 229(2)
AppellantSir Iqbal Ahmad, Senior Advocate, Supreme Court
RespondentThe Hon'ble the Chief Justice of High Court of Judicature and Anr.
Appellant AdvocateM.C. Setalvad, Attorney General, ;A.P. Pandey, ;J. Swarup and ;S.D. Pande, Advs.
Respondent AdvocateK.B. Asthana, Junior Standing Counsel
DispositionPetition allowed
Excerpt:
civil - orders of chief justice - u.p. high courts (amalgamation) order, 1948 - restrictions imposed by direction of the chief justice 25-11-1948 made under the second proviso to clause 8(2) of the u.p. high courts (amalgamation) order could not be held to be ultra vires article 19(1)(g) of constitution of india - petitioner has got a legal right under the provisions of section 2 of the supreme court act to practice in this court and therefore the order of the chief justice prohibiting him to appear in certain courts is unreasonable and could be cancelled by writ of mandamus. - - sub-clause (2) of clause (8) of the order provided as follows :the right of audience shall be regulated in accordance with the like principles, as, immediately before the appointed day, are in force with.....v. bhargava, j. 1. sri iqbal ahmad, who has filed this petition under article 226 of the constitution, was practising as an advocate in the high court of judicature at allahabad when, in the year 1932 he was appointed as an additional judge of the high court. later on he was appointed a puisne judge of the high court in 1933 and at the time of his appointment he gave an undertaking to the following effect :'i undertake also that i will not, after retirement assume practice in the high court to which i am appointed or to which i may be transferred, or in any of the courts subordinate thereto, provided that neither my salary nor right to leave and pension is varied to my disadvantage nor a further cut imposed during my tenure of office.'he remained on the bench of the allahabad high court.....
Judgment:

V. Bhargava, J.

1. Sri Iqbal Ahmad, who has filed this petition under Article 226 of the Constitution, was practising as an Advocate in the High Court of Judicature at Allahabad when, in the year 1932 he was appointed as an Additional Judge of the High Court. Later on he was appointed a Puisne Judge of the High Court in 1933 and at the time of his appointment he gave an undertaking to the following effect :

'I undertake also that I will not, after retirement assume practice in the High Court to which I am appointed or to which I may be transferred, or in any of the courts subordinate thereto, provided that neither my salary nor right to leave and pension is varied to my disadvantage nor a further cut imposed during my tenure of office.'

He remained on the Bench of the Allahabad High Court for a number of years and during that period he was appointed Chief Justice from which post he retired in the year 1946. In the year 1947 he go', himself enrolled an Advocate of the Chief Court in Oudh. on the 26th of July, 1948, while he was on the roll of Advocates of the Chief Court in Oudh the U. P. High Courts (Amalgamation) Order (hereinafter referred to as the Order) came into force and by the said Order the erstwhile High Court of Judicature at Allahabad and the Chief Court in Oudh were amalgamated; and a new High Court was constituted, though thename given to the new High Court was the High Court of Judicature at Allahabad, which was also the name of the erstwhile High Court at Allahabad.

Sub-clause (2) of Clause (8) of the Order provided as follows :

'The right of audience shall be regulated in accordance with the like principles, as, immediately before the appointed day, are in force with respect to the right of audience in the High Court in Allahabad :

Provided that subject to any rule made or direction given by the new High Court in the exercisc of the powers conferred by this Article, any person who, immediately before the appointed day, is an Advocate entitled to practise or an attorney entitled to act in either of the existing High Courts, shall be recognised as an Advocate or an attorney entitled to practise or to act, as the case may be, in the new High Court.'

A second proviso was added to this sub-clause on 4th November, 1948, to the following effect :

''Provided further that notwithstanding the amalgamation of the existing High Courts all undertakings given by persons who have held office as Judges of either of the existing High Courts or of the new High Court not to practise as Advocates within the jurisdiction of either of the existing High Courts, shall be deemed to continue in force and the Chief Justice shall issue directions prohibiting from practise as Advocates such persons to such extent as may be appropriate having regard to the terms of the undertaking and for this purpose the said undertaking shall be construed as applicable to the new High Court.'

2. In exercise of the powers contained in the second proviso the Chief Justice of the new High Court issued a direction on the 25th November, 1948, to the following effect :

'The Chief Justice is pleased to direct that ex-Judges of the High Court of Judicature at Allahabad before its amalgamation with the Chief Court who gave an undertaking not to practise within the jurisdiction of that Court shall not appear before the Benches of the High Court sitting at Allahabad and in the subordinate courts in the 37 districts which were under the jurisdiction of 'he High Court of Judicature at Allahabad before the 26th July, 1948 and the ex-Judges of the Oudh Chief Court who gave an undertaking not to practise within the jurisdiction of that Court, shall not appear before the Benches of the High Court sitting at Lucknow and in the subordinate courts in the 12 districts which were under the jurisdiction of the Oudh Chief Court hefore 26th July, 1948.'

In the year 1949 the petitioner applied for permission to appear and argue a criminal appeal pending before a Bench of the new High Court at Allahabad arising from a case coming from the district of Budaun. In that application the petitioner contended that the direction of the Chief Justice dated the 25th November, 1948, was ultra vires and incompetent inasmuch as the second proviso to Sub-clause (2) of Clause (8) of the Order was itself ultra vires Section 229 of the Government ofIndia Act, 1935. That application was rejected by the Court on the 13th of September, 1949. The petitioner went up in appeal before the Federal Court, which upheld the decision of this Court. The decision of the Federal Court in this case is reported as Sir Iqbal Ahmad v. The Allahabad. Bench, AIR 1950 FC 71.

3. In the ease before the Federal Court, amongst other points, which cams up for consider ration, was one raising the question whether the Indian Bar Councils Act did or did not apply to the new High Court. The Federal Court left the question undecided on the ground that the claim of the petitioner of bis right to practise as an Advocate before the Allahabad Bench of the new High Court could not succeed as, even if the Indian Bar Councils Act did apply, no roll of Advocates had been prepared for the new High Court by that time, so that the petitioner's name was not on the roll of the Advocates of the new High Court and it had already ceased to be on the roll of the erstwhile High Court of Judicature at Allahabad. The right of an advocate to practise in the new High Court was covered by Clause (8) of the Order, which did not entitle the petitioner to practise before the Benches of the new High Court at Allahabad. Thereafter the Indian Bar Councils Act was amended by the Indian Bar Councils (Uttar Pradesh Amendment) Act (U. P. Act. No. XXIV of 1950). By this amendment Act, the Bar Council of the Chief Court in Oudh was dissolved and provision was made for the constitution of one Bar Council for the new High Court by nomination of an ad hoc Bar Council.

That Act was held to be ultra vires the Constitution by a Bench of the new High Court in the case of D. D. Seth v. Secretary., Bar Council : AIR1954All728 . It was held in that case that a new High Court had been created by the Order and this new High Court could not be looked upon as a continuation of the erstwhile High Court of Judicature at Allahabad with extended territorial jurisdiction. Subsequently, the Parliament passed the Bar Councils (Validation of State Laws) Act No. IV of 1956, in which it was laid down that the Jaws specified in the Schedule (including the Indian Bar Councils (Uttar Pradesh Amendment) Act No. XXIV of 1950) shall, and shall be deemed always to have been, as valid as if the provisions contained therein had been enacted by Parliament. Before this Validation Act was passed by the Parliament, the Government of Uttar Pradesh on 24th May, 1952, published a notification in exercise of the powers vested in it under Sub-section (3) of Section 1 of the Indian Bar Councils Act applying Sections 7 to 16 of the Indian Bar Councils Act to the new High Court. The result of the Validation Act passed by the Parliament was that this notification issued by the State Government was also validated retrospectively so that the Indian Bar Councils Act, as amended by the U. P. Amendment Act, became applicable to the new High Court with effect from 24th May, 1952. After the 24th May, 1952, when the Indian Bar Councils Act had been made applicable to the new High Court, a roll of Advocates was prepared bythe new High Court under Section 8 of the IndianBar Councils Act and the name of the petitioner was entered in that roll.

Further, in the year 1951 the Parliament in exercise of its legislative powers vested in it under the Constitution enacted the Supreme Court Advocates (Practice in High Courts) Act No. XVIII of 1951, in which it was laid down that notwithstanding anything contained in the Indian Bar Councils Act, 1926 or in any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court, every Advocate of the Supreme Court shall be entitledas of right to practise in any High Court whether or not he is an Advocate of that High Court. This provision was qualified by a proviso to the following effect :

'Provided that nothing in this section shallbe deemed to entitle any person, merely by reason of his being an Advocate of the Supreme Court to practise in a High Court of which he was at any time a Judge, if he had given an undertaking not to practise therein after ceasing to hold office as such Judge.'

4. The petitioner in his petition has also mentioned that it is of importance to note that theConstitution came into force on the 26th January, 1950 and has relied on the fundamental right guaranteed by Article 19(1)(g) of the Constitution.

5. He has also referred to Clause (14) of theOrder under which it was laid down that

'The new High Court and the Judges and division Courts thereof shall sit at Allahabad or at such other places in the U. P. as the Chief Justice may with the approval of the Governor of U. P. appoint :

Provided that, unless the Governor of U. P.with the concurrence of the Chief Justice otherwise directs, such Judges of the new High Court not less than two in number, as the Chief Justicemay, from time to time nominate, shall sit atLucknow in order to exercise in respect of cases arising in such areas in Oudh as the Chief Justice may direct, the jurisdiction and power for the time being vested in the new High Court :

Provided further that the Chief Justice may in his discretion order that any case or class ofcases arising in the said areas shall be heard at Allahabad.'

6. In exercise of the powers vested in the Chief Justice under this clause, the Chief Justiceon 14th December, 1948 passed an order directingthat all cases arising from the Judgeship of Faizabad shall be heard by the Bench of the High Court sitting at Allahabad and not at Lucknow and subsequently on 15th July, 1948, passed another orderdirecting that the cases under the following Actsshall be heard at Allahabad and not at Lucknow:

(1) Indian Divorce Act, 1869,

(2) Special Marriages Act, 1872,

(3) Indian Companies Act, 1913,

(4) Indian Income-tax Act, 1922,

(5) Indian Succession Act, 1925, and

6. Indian Matrimonial Cases (War Marriages) Act, 1948.

In both the orders it was laid down that they were not to affect cases already pending at Lucknow.

7. The petitioner has in the petition also mentioned the fact that in practice the Judges of the Allahabad and Lucknow Benches are interchangeable so that Judges who ordinarily sit at Lucknow are temporarily moved to Allahabad and Judges ordinarily sitting at Allahabad move to and sit at Lucknow.

8. on all these facts the petitioner urged that the second proviso to Sub-clause (2) of Section 8 of the Order and the direction issued by the Chief Justice on the 25th November, 1948, had either become void or stood repealed so that the petitioner was entitled to practise and appear before the Benches of the new High Court at Allahabad, and prayed for the issue of an order, direction or a writ in the nature of a Writ of certiorari quashing the order of the Chief Justice dated the 25th November, 1948, and in the alternative, prayed that the Court may issue any other order or a writ which may be appropriate and in accordance with the exigencies of the case.

9. During the course of arguments before uslearned Attorney General of India appearing for the petitioner mainly urged three grounds for seeking the relief sought in the petition.

10. The first ground was that the second proviso to Sub-clause (2) of Clause (8) of the Order and the direction of the Chief Justice dated the 25th November, 1948 had become void under Article 13 of the Constitution as violating the fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution. It was urged that, since the petitioner is an Advocate on the roll of Advocates for the new High Court, the restriction prohibiting him from practising before the Benches of the new High Court at Allahabad was an unreasonable restriction, particularly in view of the fact that, on account of the subsequent orders of the Chief Justice dated the 14th December, 1948, and 15th July, 1949, the right of the petitioner which existed after the amalgamation of the two erstwhile High Courts because of his having been brought on the roll of Advocates of the Chief Court in Oudh had been curtailed by transferring jurisdiction over cases covered by those orders from the Bench at Lucknow to the Bench at Allahabad, and further the restriction was clearly unreasonable when, owing to the practice prevailing, the petitioner could appear before the same Judges of the new High Court while sitting at Lucknow though he was debarred from appearing before them while sitting at Allahabad.

11. The second ground urged was that at least after the enforcement of the Supreme Court Advocates (Practice in High Courts) Act No. XVIII of 1951, the petitioner had a right to practise before the Benches of the New High Court at Allahabad, as the proviso to Section 2 of the Act did not apply to him, because he had given no undertaking relating to the new High Court and his undertaking given in the year 1933 in respect of theerstwhile High Court of Judicature at Allahabadhad ceased to be effective when that High Court was amalgamated with the Chief Court in Oudh and a new High Court was constituted.

12. The third ground urged was that, in any case, after the Indian Bar Councils Act had been applied to the new High Court and the name of the petitioner had been entered on the roll ot Advocates prepared for the new High Court, he became entitled as of right to practise in the new High Court without any restrictions as to the place of sitting of the Benches of the Court under Section 14 of that Act. It was further urged that the effect of the Indian Bar Councils Act, 1926 being applied to the new High Court was that the second proviso to Sub-clause (2) of Clause (8) of the Order stood repealed, and consequently the direction of the Chief Justice dated the 25th November, 1948, also became inoperative.

13. In considering the contention that the direction of the Chief Justice dated the 25th November, 1948, is ultra vires the Constitution as imposing an unreasonable restriction on the right of the petitioner to practise as an Advocate under Article 19(1)(g) of the Constitution, the background in which the order was passed and the position as it stood when the Constitution came into force have to be kept in view. The petitioner had given a voluntary undertaking not to practise in the erstwhile High Court of Judicature at Allahabad and in the courts subordinate thereto in the year 1933 when he was appointed as a Puisne Judge of that Court. When the petitioner retired in the year 1946 that undertaking became effective and consequently the petitioner could not appear before the erstwhile High Court of Judicature at Allahabadand in the courts subordinate to it. He consequently had himself enrolled as an Advocate in the Chief Court in Oudh where he started practising and at the time when the Order was passed he was practising in that Court. The effect of the second proviso to Sub-clause (2) of Clause (8) of the Order was that the Chief Justice of the new High Court was vested with the power of making direction prohibiting from practice as Advocates persons who had given undertakings to such extent as may be appropriate having regard to the terms of their undertakings; and for the purpose of enabling the Chief Justice to issue such directions the undertakings were to be construed as applicable to the new High Court.

It cannot be doubted that the direction given by the Chief Justice on the 25th November, 1948, was an appropriate direction having regard to theterms of the undertakings given by persons who had been appointed as Judges of the erstwhile High Court of Judicature at Allahabad or the erstwhile Chief Court in Oudh. The direction applied to the petitioner also. The petitioner challenged the validity of the direction but his claim was ultimately rejected by the Federal Court in the case mentioned above. At that time no roll of Advocates had been prepared for the new High Court under the Indian Bar Councils Act and even the question whether the Indian Bar Councils Act was applicable to the new High Court was in doubt. The Chief Justice, before the Federal Court gave thedecision, had already made orders transferring jurisdiction from the Lucknow Bench to the Allahabad Bench as the relevant orders were passed on the 14th December, 1948, and the 15th July, 1949. It was while this position existed that the Constitution came into force; and under Article 19(1)(g) of the Constitution the fundamental right to carry on a profession was granted to every citizen.

The carrying on of the work as an Advocate is undoubtedly a profession, but it is to be noticed that this profession by its very nature is such that a person carrying on this profession has to submit to laws and rules relating to the courts in which he wants to carry on the profession. It, for example, no courts at all were constituted in the State of Uttar Pradesh or the courts in Uttar Pradesh had ceased to exist altogether when the Constitution came into force, no citizen could claim that the courts should be brought into existence for the purpose of enabling him to carry on the profession of an Advocate. The carrying on of this profession further necessarily depends on the qualifications being prescribed which may be different for different courts considering the jurisdiction and the status of those courts. Further, the right to practise in a particular court can only be claimed if the law constituting that court or the law applicable to that court confers such a right. It is not necessary that every citizen wanting to carry on the profession of an Advocate must be granted the right to practise in every court under all circumstances. The right, because it is dependent upon the constitution of the courts, is also necessarily limited to those particular courts and may, therefore, become limited to the areas where those courts are located or over which those courts exercise jurisdiction.

Thus no citizen is entitled to practise as an Advocate and claim that he had a fundamental right to appear in all High Courts and subordinate courts all over India. In fact, different High Courts have separate Tolls of Advocates and the right of practice in a particular High Court has always been dependent on the name of the Advocate being entered in the roll of Advocates prepared for that High Court. The entry of name in the roll of Advocates for one High Court cannot give a right of practice in any other High Court. The petitioner at the time when the order was passed and the new High Court came into existence on 26th July, 1948, had his name on the roll of Advocates prepared for the Chief Court in Oudh; and if at all, after the amalgamation he could only claim that that right of his should be continued. That right in effect was continued by the direction of the Chief Justice dated the 25th November, 1948, and that was the only right which the petitioner possessed and could exercise when the Constitution came into force.

When the Constitution came into force, the petitioner could at best claim that the right which be possessed at the time of the enforcement should not be curtailed, and that right did continue to exist. The curtailment of that right by the Orders of the Chief Justice dated the 14th December, 1948, and the 15th July, 1949, had already taken place before the Constitution came into force;and at the time when the Constitution came into force the right vested in the petitioner was the limited right as curtailed by those orders. It does not, therefore, appear how it can be held that any unreasonable restriction had been placed on his right which already was a limited right and was of such a nature that the exercise of it was dependent on the law constituting the Court before which the right could be exercised. The curtailment of the right of the petitioner had taken place under orders passed in exercise of powers conferred by the Order by which the new High Court had been constituted; and consequently those restrictions must be held to be springing from the nature of the Court before which the petitioner desires to exercise his right of carrying on the profession of an Advocate, and should not be considered as restrictions.

14. Further, even if it be held that the direction of the Chief Justice dated the 25th November, 1948, did impose a restriction on the right of the petitioner to carry on his profession of an Advocate, it appears that there can be no ground for holding that the restriction was unreasonable. The petitioner had been appointed a Puisne Judge of the erstwhile High Court of Judicature at Allahabad on his giving a specific undertaking not to practise before that Court and the courts subordinate to it, and the restriction that existed when the Constitution came into force was an appropriate restriction for the purpose ot giving effect to that undertaking given by the petitioner. The undertaking, dealt with a matter which was clearly in the interest of the general public. The undertaking was obtained from the petitioner because it was considered undesirable that, after ceasing to be a Judge of the erstwhile High Court of Allahabad, he should appear as an Advocate before that very Court or the courts subordinate to it, which implied that it was considered to be a salutary principle that a person, who had exercised jurisdiction as a Judge of a High Court over a certain area, should not appear and practise as an Advocate in the courts functioning in that area.

Even after the Chief Justice had passed orders dated the 14th December, 1948, and the 15th July, 1949, the restriction imposed on the right of the petitioner to practise as an Advocate was limited to prohibiting him from appearing before Benches of the new High Court and the courts subordinate to it functioning in the. area over which the petitioner had exercised jurisdiction as a Judge and as Chief Justice of the erstwhile High Court. It is immaterial that the petitioner could appear before the same Judges at Lucknow while he was debarred from appearing before them at Allahabad, because the principle on whichthe restriction imposed was to prohibit the petitioner from appearing before the courts situatedin the area over which he had exercised jurisdiction as a Judge and as a Chief Justice. Similarly, the fact that there was transfer of jurisdiction in respect of cases arising from Faizabad Judge-ship from Lucknow Bench to Allahabad Bench is immaterial, because even thereafter the prohibition under the direction of the Chief Justice datedthe 25th November, 1948 continued to limit the right of the petitioner to appear before the courts situated in the area over which he had exercised jurisdiction as a Judge or as a Chief Justice.

The restriction, as has been held earlier, was clearly a reasonable restriction considering the purpose to be achieved by imposing it, and was in public interest inasmuch as the object to be achieved by that restriction was Ito inspire confidence in the general public that an ex-Judge or an ex-Chief Justice will be prevented from appearing before courts situated in that area, lest the fact of his previous status in that very area where the courts are situated might give an apprehension in the minds of the litigants, litigating against parties represented by him, that his previous status might enure to the advantage of his client and to the prejudice of those opposing parties. The ground taken that the restriction imposed by the direction of the Chief Justice dated the 25th November, 1948, made under the second proviso to Sub-clause (2) of Clause (8) of the Order was ultra vires Article 19(1)(g) of the Constitution, therefore has no force.

15. The second point which has to be considered relates to the effect of the provisions of the Supreme Court Advocates (Practice in High Courts) Act No. XVIII of 1951. It was urged by learned Attorney General that, under the provisions of Section 2 of that Act, the petitioner, who had been enrolled as an Advocate of the Supreme Court, became entitled as of right to practise in the new High Court; and in exercise of that right he could appear not only before the Benches of the new High Court sitting at Lucknow but also before the Benches sitting at Allahabad. It was further urged that the proviso to Section 2 of that Act did not apply Ito the petitioner as that proviso was limited to giving effect to an undertaking given by a person claiming the right under the main provision of that section, only if that undertaking was given with respect to that very High Court in which he was claiming the right to practise, while so far as the petitioner is concerned he had given no undertaking not to practice before the the new High Court and his undertaking given in respect of the erstwhile High Court of Judicature at Allahabad had ceased to be effective.

One principle of interpretation of statutes is that such construction should be accepted by courts as would give full effect to the intention of the Legislature and indicated by the provisions of that statute. The proviso to Section 2 of the Supreme Court Advocates (Practice in High Courts) Act was clearly intended to preserve the undertakings which may have been given by persons appointed as Judges of a High Court, and, as has already been indicated earlier, in effect the order of the Chief Justice dated the 25th November, 1948, merely gives effect to the undertaking which had been given by the petitioner when he was appointed a Judge of the erstwhile High Court of Judicature at Allahabad. It is true that the undertaking which the petitioner gave was in respect of the erstwhile High Court of Judicatureat Allahabad and not the new High Court. But the second proviso of Sub-clause (2) of Clause (8) of the Order permitted the Chief Justice of the new High Court to make appropriate directions so been given in respect of the erstwhile High Court as to give effect to the undertakings which had of Judicature at Allahabad and the erstwhile Chief Court in Oudh, and the direction of the Chief Justice given on the 25th November, 1948, has achieved this purpose.

The second proviso has further laid down that for the purpose of enabling. the Chief Justice to issue such directions, the undertakings given with reference to the erstwhile High Court of Judicature at Allahabad or Chief Court in Oudh were to be construed as applicable to the new High Court. At the time when the Supreme Court (Advocates Practice in High. Court.) Act was enacted, this second proviso to Sub-clause (2) of Clause (8) of the Order was already in existences and the proper construction of the proviso to Section 2 of that Act would be that it was intended not to affect the validity of the second proviso and the directions made by the Chief Justice in exercise of the powers conferred by it. The word 'undertakings' in the proviso to Section 2 of the Supreme Court (Advocates Practice in High Courts) Act should be construed as including within it undertakings which are construed as applicable to the new High Court under the second proviso to Sub-clause (2) of Clause (8) of the Order and hence it has to be held that the Supreme Court (Advocates Practice in High Courts) Act did not invalidate or render ineffective the direction of the Chief Justice dated the 25th November, 1948.

16. The third point urged by the learned Attorney General on behalf of the petitioner, however, appears to have considerable force. The Indian Bar Councils Act, 1926, as amended by the U. P. Amendment Act was applied to the new High Court with effect from the 24th May, 1952, inasmuch as Sections 7 to 16 of the Indian Bar Councils Act were made applicable to the new High Court. The U. P. Amendment Act and the notification of the 24th May, 1952, were validated retrospectively by the Bar Councils (Validation of State Laws) Act No. IV of 1956 passed by the Parliament, and consequently the notification of the State Government dated the 25th May, 1952, was also validated under Section 14 of (the Indian Bar Councils Act, 1926, as applied to the new High Court. The Petitioner became entitled as of right to appear before the new High Court on his name being entered in the roll of Advocates prepared under Section 8 of that Act. The question is whether this right which accrued to the petitioner continued to be governed and limited by the direction of the Chief Justice dated the 25th November, 1948. on this point Our attention was invited by learned Attorney General to the provision contained in Clause 18 of the Order which is to the following effect :--

'Nothing in this Order shall prejudice the application to the new High Court of any rele-vant provisions of the Act, and this Order shall have effect subject to any provision that may be made on or after the appointed day with respect to the new High Court by any Legislature or authority having power to make such provision.'

17. It is urged that the effect of thist provision is that, if any provision be made after the 26th July, 1948, with respect to the new High Court by any Legislature or authority having power to make such provision, that provision would override the provisions of the Order, and the provision contained in Section 14 of the Indian Bar Councils Act, 1926, which was applied to the new High Court with effect from the 24th May, 1952, will therefore override the provisions of the second proviso to Sub-clause (2) of Clause (8) of the Order as also any direction made by the Chief Justice in exercise of the powers conferred by that proviso. It appears that this argument is unanswerable. The provisions of the Order, in view of Clause 18, were to take effect subject to any provisions made by appropriate Legislature on any of the matters contained in the Order. One of the matters contained in the Order was that the Chief Justice was empowered to make directions prohibiting from practice as Advocate in the new High Court persons who had given undertakings with respect to the erstwhile High Court of Judicature at Allahabad or Chief Court in Oudh to such extent as may be appropriate having regard to their terms of undertakings. Those directions given under the proviso were effective until Section 14 of the Indian Bar Councils Act became applicable.

On Section 14 of the Indian Bar Councils Act becoming applicable, every person entered as an advocate in the roll of the new High Court prepared under Section 8 of the Indian Bar Councils Act became entitled to practise in the new High Court as of right, and this right naturally extended to the entire new High Court including all its Benches wherever they may be sitting. This new right conferred was in conflict with the limitation on the right placed by the order of the Chief Justice dated the 25th November, 1948, and, consequently, that limitation must be deemed to be overruled and rendered ineffective as a result of Section 14 of the Indian Bar Councils Act having become applicable to the new High Court.

In fact, the effect of Section 14 of the Indian Bar Councils Act was that thereafter no directions could be made by the Chief Justice in exercise of the powers conferred by the second proviso to Sub-clause (2) of Clause (8) of the Order, as any such direction would result in curtailment of the right granted by Section 14 of the Indian Bar Councils Act and would, therefore, be ineffective, as the provisions of the Order were subject to the provisions made by the Parliament in the Indian Bar Councils Act. The provisions of the Indian Bar Councils Act prevailed over the provisions contained in the Order, and the right granted by the Indian Bar Councils Act could therefore, be exercised in spite of any limitations placed by directions issued in exercise of powers conferred by the Order. In effect, therefore, after Section 14 of the Indian Bar Councils Act became applicable to the new High Court, the second proviso to Sub-clause (2) of Clause (8) of the Order stood repealed inasmuch as it became totally ineffective.

18. In this connection notice may also be taken of the provisions contained in Section 19 of the Indian Bar Councils Act. Section 19 lays down the consequences of Sections 8 to 16 coming into force in respect of any High Court and, under Sub-section (2) of Section 19 the Indian Bar Councils Act, 1926, was to take effect in respect of any High Court of Judicature established by Letters Patent notwithstanding anything contained in such Letters Patent, and such Letters Patent were, in so far as they were inconsistent with the Indian Bar Councils Act or any rules made thereunder, to be deemed to have been repealed. It is true that the new High Court was not constituted by Letters Patent, but again if the intention of the provisions contained in Section 19(2) of the Indian Bar Councils Act is to be given full effect, its provisions should be held to be applicable even to High Courts constituted by an order of the Governor General under the amended Section 229 of the Government of India Act, under which that power was exercised by the Governor-General which power before the amendment of Section 229 of the Government of India Act could only be exercised by the issue of Letters Patent. Section 229 of the Government of India Act originally provided for reconstitution or amalgamation of High Courts by the issue of Letters Patent by His Majesty; and when it was amended by Sub- Clause (c) of Clause 2 of the Indian Provisional Constitution (Amendment) Order, 1948, the same power was to be exercised by the Governor-General by issuing Orders.

The Amalgamation Order of 1948 was passed by the Governor-General in exercise of that power under Section 229 of the Government of India Act and was, therefore, the same power which had been substituted for the power which earlier could be exercised by issue of Letters Patent. A Governor-General's order under Section 229 of the Government of India Act thus had the same purpose and effect as Letters Patent issued under that section earlier before its amendment; and, consequently, when construing Sub-section (2) of Section 19 of the Indian Bar Councils Act, this provision should be considered as applicable to High Courts established by Governor-General's order as all High Courts established by Letters Patent. on this view, Section 19(2) would be applicable to the new High Courts and the effect of this provision would be that it would specifically repeal the second proviso to Sub-clause (2) of Clause 8 of the Order, which, as has been indicated above, is inconsistent with the provision contained in Section 14 of the Indian Bar Councils Act. Consequently the second proviso under which the direction of the Chief Justice dated the 24th November, 1948, was issued, stands repealed with effect from the 24th of May, 1952, when sections 7 to 16 of the Indian Bar Councils Act weremade applicable to the new High Court; and since the second proviso stands repealed, the direction of the Chief Justice made in exercise of powers conferred by it would also stand repealed. In this light also it has to be held that the direction of the Chief Justice dated the 25th November, 1948, cannot be given effect to after the 24th of May, 1952.

19. Mr. K. B. Asthana appearing for the opposite party in this petition urged that in the case of Pramcsh Chahdra v. Registrar, High Court of Judicature at Allahabad : AIR1955All269 , a Full Bench of this Court has held that the new High Court constituted by the Order is a continuation of the erstwhile High Court of Judicature at Allahabad and that the Indian Bar Councils Act continued to apply to the new High Court as it applied to the erstwhile High Court of Judicature at Allahabad as well as the Chief Court in Oudh and consequently the Order was not subject to the provisions of the Indian Bar Councils Act not being an Act made on or after the appointed day as mentioned in the Order. It may, however, be noticed that the Full Bench, in giving the decision considered both the alternatives and held that the application for enrolment which had come up for consideration by the Full Bench had to be allowed whether the Indian Bar Councils Act did or did not apply to the new High Court. It was held that, if the new High Court was a continuation of the erstwhile High Court of Judicature at Allahabad, the Indian Bar Councils Act continued to apply and enrolments could be made by the High Court in accordance with the provisions of that Act; and if the Indian Bar Councils Act did not apply, the High Court had the power to enrol Advocates conferred upon the erstwhile High Court of Judicature at Allahabad uuder Paras 7 and 8 of Letters Patent and preserved to the new High Court by Para 8 of the Order. The decision having been given in the alternative, it cannot be held that the Full Bench necessarily gave a decision that the new High Court was a continuation of the old High Court and the Indian Bar Councils Act continued to apply to the new High Court on that footing.

The language of Section 229 of the Government of India Act, 1935, under which the Order was made by the Governor-Genera], may be noticed. Under Section 229 of the Government of India Act, as amended npto the time when the Order was made, power was conferred on the Governor-General to reconstitute or amalgamate High Courts and in the latter portions of that section such new Courts were described as reconstituted Courts or new High Courts. The Government of India Act itself, thus, treated a High Court constituted by amalgamation as a new High Court, and consequently, the Indian Bar Councils Act which had been made applicable only to the erstwhile High Court at Allahabad and the Chief Court in Oudh ceased to apply to the new High Court until it was made applicable by the notification of the State Government dated the 24th May, 1952. Further, even if it be held that the Indian Bar Coun-cils Act continued to apply to the new High Court, which was constituted as a result of the amalgamation order, it must be held that the second proviso to Clause 8 of the Order was ineffective from the very beginning as it was in conflict with the. provisions of Section 14 of the Indian Bar Councils Act and had to be; deemed to stand repealed under Sub-section (2) of Section 19 of the Indian Bar Councils Act.

20. Notice at this stage may also be taken of an objection raised by learned counsel for the opposite party that, in this case the petitioner has prayed for the issue of an order, direction or a writ in the nature of a writ of certiorari to quash the order dated the 25th November, 1948, passed by the Chief Justice, while that order not being a judicial or quasi-judicial order, no such writ can issue. Learned Attorney General on behalf of the petitioner was not able to support the prayer as originally put in the petition and was unable to show that a writ in the nature of writ of certiorari would be appropriate in the present case, but he submitted that the powers of this Court were not fettered by the mention of a particular writ in the prayer contained in the petition and that the court had very wide powers to issue any appropriate order, direction or writ which might grant adequate relief to the petitioner. In this case, it was submitted that an order should issue quashing the order of the Chief Justice dated the 25th November,. 1948, though the order might not be in the nature of a writ of certiorari. The order dated the 25th November, 1948, passed by the Chief Justice not being a judicial or quasi-judicial order cannot be quashed by a writ of certiorari, nor does it appear to be appropriate to issue any such order, direction or writ. It, however, appears that, in this case, on the view that was taken above about the validity of that order, the direction which should be appropriately passed by this Court would, be one restraining the Chief Justice from enforcing the order dated the 25th Novemebr, 1948, against the petitioner. Such an order issued by the Court will be in the nature of a writ of mandamus.

21. Learned counsel for the opposite party in this tight urged that the appropriate writ which can issue should be refused to the petitioner on the ground that the petitioner had moved this Court for this relief after great laches and delay. The relief, according to the findings recorded, could have been claimed by the petitioner at any time after the Indian Bar Councils Act was made applicable to the new High Court by the notification of the State Government dated the 24th May, 1952, or in any case when the Bar Councils (Validation of State Laws) Act No. IV of 1956 came into force. This point was raised by learned counsel as a preliminary objection, but, before the petition could be decided, a supplementary affidavit was presented on behalf of the petitioner and in that supplementary affidavit, facts and circumstances were given explaining why this petition was presented in December, 1958. Reference was made in the supplementary affidavit to the assertions made in the principal affidavit filed in support of the petition that the petitioner hadmoved the State Government that, after the creation of the new High Court, the undertaking given by the petitioner had lapsed and had acquired a statutory right under Section 15(sic) of the Indian Bar Councils Act to practise in the new High Court and that the order passed by the Chief Justice was ineffective in law, but the State Government did not give any redress to the petitioner.

The petitioner then proceeded in the supplementary affidavit to state that, before filing the writ petition, he made an appointment with the Chief Justice and had a personal interview with him and, then on a suggestion made by the Chief Justice, he prepared a brief synopsis of the grounds, circumstances and points on which he based this subsequent writ petition and submitted it to the Chief Justice by registered post. The petitioner received a reply to the effect that the Chief Justice was not prepared to accede to the petitioner's prayer. It would thus appear that, shortly before this petition was moved, the petitioner wanted to exercise his right of practising and appearing before the Allahabad Bench of the new High Court, but the exercise of that right was denied to him when he made a request to the Chief Justice It may be that, after the Indian Bar Councils Act was made applicable to the new High Court in the year 1952, the petitioner had no occasion when he desired to appear before the Allahabad Bench of the new High Court and it was only recently that the necessity arose for him to seek such permission.

When he sought, permission from the Chief Justice, it was refused and, thereupon,. the necessity arose for presenting this petition. The facts stated in the supplementary affidavit were not denied on behalf of opposite party. In these circumstances, it appears that the petitioner moved this petition without any appreciable delay after he was denied the opportunity to exercise his right of practising before the Allahabad Bench of the new High Court when an occasion arose for him to do so or when he actually desired to do so. In the circumstances, it cannot be held that there are any laches or delay on the part of the petitioner such as to disentitle him to the relief claimed by him, even though the relief is to be granted by the issue of a writ in the nature of a writ of mandamus.

22. The last point urged by learned counsel for the opposite party was that the order of the Chief Justice which is impugned in this writ petition was passed on the 25th November, 1948, before the Constitution came into force and consequently could not be challenged by invoking the powers of this Court under Article 226 of the Constitution. It has already been held earlier that the cause of action to the petitioner arose when the Indian Bar Councils Act was made applicable to the new High Court on the 24th May, 1952, after the enforcement of the Constitution, and consequently this argument has no force. Farther, as has been indicated above, relief is to be granted by issue of a writ in the nature of mandamus directing the opposite party not to enforce theorder dated the 25th November, 1948, and that relief can be granted independently of the question when that order was passed, because that order is invalid today having been repealed by the Indian Bar Councils Act and the right of the petitioner to practise before the Allahabad Bench of the new High Court is being denied at the present time.

23. As a result, the petition is allowed sothat a writ in the nature of mandamus will issue to the opposite party not to give effect to the order of the Chief Justice dated the 25th November, 1948, so as to bar the petitioner from exercising his right of practising before the Allahabad Bench of the new High Court. The petitioner will be entitled to the costs of this petition, which are fixed at Rs. 200/-.

J. Sahai, J.

24. Though there is no difference of opinion between myself and my brother Bhargava with regard to the main conclusion and the ultimateorder to be passed in the case the necessity for a separate judgment has arisen because we do not agree in our approach to the question which arises for determination in this case and in our reasonings and conclusions, at any rate, with regard to two of the grounds on which the petition is founded.

25. Before 1948 there were two High Courts functioning in this State which was then called United Provinces of Agra and Oudh, the reasons for the existence of the two Courts being historical. One Court which was called the Chief Court of Oudh exercised jurisdiction over that area of the province which originally constituted thekingdom of Oudh. The other Court i.e. the High Court of Judicature at Allahabad exercised jurisdiction over the remaining area of the province i.e. what originally was the north western province. The reason for the existence of the two Courts was that the province of Oudh was for the first time annexed by the British in 1856, before which it was governed by the Nawab Wazirs as an independent State. After the annexation of Oudh a Judicial Commissioner was appointed asthe Head of the Judiciary of that province. The area which was under the jurisdiction of the Allahabad High Court was under British rule from before and it had its own highest court at Agra i.e. ithe 'Sadar Diwani Adalat' and later on the High Court of North Western Province. The two provinces i. e. the North Western Province and Oudh were amalgamated in 1901 and the United Provinces of Agra and Oudh came into existence. But the judicial administration in the two areas of the amalgamated province remained separate. In Oudh the Judicial Commissioner continued to exercise authority till the year 1925 when the Chief Court of Oudh was constituted by the Oudh Chief Court Act whereas with regard to the remailing areas the High Court of Judicature at Allahabad which was constituted in the year 1866 exercised jurisdiction.

26. The petitioner was appointed a Puisne Judge of the High Court of Allahabad in 1933.At that time he gave an undertaking which runs as follows :

''I undertake also that I will not, after retirement, assume practice in the High Court to which I am appointed or to which I may be transferred, or in any of the courts subordinate thereto, provided that neither my salary nor right to leave and pension is varied to my disadvantage nor a further cut imposed during my tenure of office.'

Rising up to the position of the Chief Justice of the Court the petitioner retired in 1946 and in1947 got himself enrolled as an Advocate of the erstwhile Chief Court in Oudh. In order to remove the incongruity of having two highest courts of justicei in. (the same State, on 26th July,1948 the U. P. High Courts (Amalgamation) Order was made by the Governor-General of India under Section 229 of the Government of India Act, 1935. Under that Order the present High Court came into existence retaining the name of the erstwhile Allahabad Court. Under Clause 14 of the Order a bench consisting of not less than two Judges was to be maintained at Lucknow.

''in order to exercise in respect of cases appearing in such areas in Oudh as the Chief Justice may direct the jurisdiction and power for the time being vested in the new High Court.'

To begin with four or five Judges were nominated to sit at Lucknow and all cases arising within the areas originally, under the jurisdiction of the Oudh Chief Court were to be heard at Lucknow.

On 4th November, 1948 the second proviso which I have underlined was added to Clause (8) of the Order and the said clause thereafter is standing in the Order in the following words :

'8 (1) The new High Court shall have the like powers to approve, admit, remove and suspend advocates and attorneys, and to make rules with respect to advocates and attorneys, in the whole of the United Provinces as are, under the law in force immediately, before the appointed day, exercisable by either of the existing High Courts.

2. The right of audience in. the new High Court shall be regulated in accordance with the like principles, as, immediately before the appointed day, are in force with respect to the right of audience in the High Court in Allahabad :

Provided that, subject! to any rule made or direction given by the new High Court in the exercise of the powers conferred by this Article, any person, who immediately before the appointed day, is an advocate entitled to practise or an attorney entitled to act in either of the existing High Courts, shall be recognised as an advocate or an attorney entitled to practise or to act, as the case may be, in the new High Court.

'Provided further that notwithstanding the amalgamation of the existing High Courts all undertakings given by persons who have held office as Judges of either of the existing High Courts or of the new High Court not to practice as advocates within the jurisdiction of either of the existing High Courts shall be deemed to continue in force, and the Chief Justice shall issuedirections prohibiting from practice as advocates such persons to such extent as may be appropriate having regard to the terms of their undertakings, and for this purpose the said undertakings shall be construed as applicable to the new High Courts.'

In order to implement the second proviso the Chief Justice of the New Court (hereinafter referred to as the present Court) on 25th November, 1948 passed an order which reads as follows :

'Chief Justice is pleased to direct that ex-judges of the High Court of Judicature at Allahabad before its amalgation with the Chief Court who gave an undertaking not to practice within the jurisdiction of that Court shall not appear before the Benches of the High Court sitting at Allahabad and in the subordinate courts in the 37 districts which were under the jurisdiction of the High Court of Judicature at Allahabad before the 26th July 1948 and the ex-Judges of the Oudh Chief Court who gave an undertaking not to practice within the jurisdiction of that Court, shall not appear before the Benches of the High Court sitting at Lucknow and in the subordinate courts in the 12 districts which were under the jurisdiction of the Oudh Chief Court before 26th July, 1948'.

Thereafter another order was passed by the Chief Justice on the 14th December 1948 directing that all cases coming from the judgeship of Faizabad which included the districts of Faizabad and Sultanpur shall be heard at Allahabad and not at Lucknow as was being done in the past. on 15th July 1949 another order was passed by the Chief Justice that all cases under the following Acts throughout Uttar Pradesh shall be heard at Allahabad and not at Lucknow :

1. Indian Divorce Act, 1869.

2. Special Marriages Act, 1872.

3. Indian Companies Act, 1913.

4. Indian Income-Tax Act, 1922.

5. Indian Succession Act, 1925.

6. Indian Matrimonial Cases (War Marriage Act, 1948.)

The above two orders however clearly provided that the cases already pending at Lucknow on the date when those orders were passed would be disposed of by the Lucknow Bench of the Court.

27. In the year 1949 the petitioner asked for permission to appear in a Criminal Appeal before a Bench of the Court at Allahabad. He was refused permission. He filed an appeal before Ithe erstwhile Federal Court of India but without success.

28. Though the two Courts were amalgamated both the Bar Councils i. e. the one functioning at Lucknow under the late Oudh Chief Court and the either functioning at Allahabad under the erstwhile Allahabad High Court were continuing to function. Inter alia in order to remove this anachronism the Indian Bar Councils Act was amended by the Indian Bar Councils (Uttar Pradesh Amendment) Act, No. 24 of 1950, as a consequence of which one Bar Council for the new court was brought into existence afterabolishing the Bar Council at Lucknow. The validity of this Act was challenged successfully before this Court. : AIR1954All726 . Meantime the U. P. Government on 24th May 1952 issued a notification in exercise of the powers vested in it under Sub-section (3) of Section 1 of the Indian Bar Councils Act applying Sections 7 to 16 of that Act to the new Court. Sometime thereafter the present High Court in discharge of the statutory obligation under Section 8 of the Indian Bar Councils Act prepared the roll of Advocates entitled to practice before it. The petitioner's name was entered in it and has been standing there throughout without any objection being made to its existence by any one.

In 1955 the Parliament passed the Bar Councils (Validation of State Laws) Act No. IV of 1956, providing that the laws specified in the schedule including Act No. 24 of 1956 shall be deemed always as valid as if the provisions contained therein had been enacted by Parliament. The result was that the notification of 24th May, 1952 was also validated retrospectively along with Act No. 24 of 1950 and the roll of advocates prepared by this Court and which includes the petitioner's name received legal sanction and became a validly prepared roll.

29. The petition has been founded on the following three grounds :

(1) Under the Supreme Court (Advocates' Practice in High Courts) Act No. XVIII of 1951 (hereinafter referred to as the Supreme Court Act) the petitioner has a right to practice in this Court also, (2) he has a fundamental right guaranteed under Article 19(1)(g) of the Constitution to practice in this Court and the restrictions imposed by the order of the Chief Justice dated the 25th November, 1948 and also the provisions of Sub- Clause (2) of Clause 8 of the Order are unreasonable and consequently void under Article 13 of the Constitution of India, and (3) the Indian Bar Councils Act having been applied to the present Court and the name of the petitioner having been entered in the rolls of advocates of the Court he is entitiled to practice in the present Court without ally restrictions as to the place of sitting of Benches. tO supplement this ground it was urged that the legal result that followed the Indian Bar Councils Act, 1926 being applied to the present Court was that Sub-clause (2) of Clause 8 of the Order stood repealed and consequently the order of the Chief Justice dated the 25th November, 1948 also became inoperative having no longer statutory foundation to support it.

30. Before I come to consider the merits of the three grounds it will bei relevant to examine as to what extent, if any, does the decision of the Federal Court in AIR 1950 FC 71, bars the petitioner from urging the grounds mentioned above. That was a decision given by the Federal Court on the appeal which the petitioner had filed in 1949 against the Order of a Bench of this Court refusing to give him permission to appear in a criminal appeal coming from the district of Budaun as already mentioned in an earlier part of the judgment. In my opinion the decision of theFederal Court does not stand in the way of the petitioner and none of the points raised before us have been concluded by that decision. That position has been conceded even by the learned counsel appearing for the respondents.

31. I will take the first ground first. Section 2 of the Supreme Court Act clearly provides that :

''Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law regulating the conditions subject to which a person not entered in the roll of advocates of a High Court may be permitted to practice in that High Court, every Advocate of the Supreme Court shall be entitled as of right to practice in any High Court whether or not he is an Advocate of that High Court.'

This section has a proviso which runs as follows :

'Provided that nothing in this section shall be deemed to entitle any person, merely by reason of his being an Advocate of the Supreme Court to practise in a High Court of which he was at any time a Judge, if he had given an undertaking not to practise therein after ceasing to hold office as such Judge.'

From a perusal of Section 2 and its Proviso it clearly emerges out that any advocate who is enrolled on the rolls of the Supreme Court has got the right to practise in any High Court whether or not he is an advocate of that Court and further that he shall not be so entitled to practise if he was a Judge of that Court and had given an undertaking not to practise therein after ceasing to hold office as such. The words 'shall be entitled as of light to practise'' are emphatic in extreme and clearly indicate that the right of an advocate enrolled in the Supreme Court to practise in any of the High Courts is absolute and subject only to the proviso mentioned above. That the petitioner is enrolled as an advocate of the Supreme Court is the common case of the parties. That he was a Judge of the erstwhile Allahabad High Court and that he had given an undertaking are also matters which are not in dispute. The only question therefore that remains for considerate is whether the present court is a new Court of is a continuation of the old Allahabad High Court or a successor to that Court. In my opinion it cannot be serioxisly doubted that it is a new Court. The order under which this Court was constituted was made under Section 229 of the Government of India Act, 1935. The said section runs as follows :

''229 (1) The Governor-General, if the Chamber or Chambers of the Legislature of any Province present an address in that behalf to the Governor of the Province for submission to the Governor-General, may by an order constitute a High Court for that Province or any part thereof or reconstitute in like manner any existing High Court for that Province or for any part thereof or where there are two High Courts in that Province amalgamate those courts.

2. Where any Court is reconstituted, or twoCourts are amalgamated, as aforesaid, the order shall provide for the continuance in their respective offices of the existing judges, officers and servants of the Court or Courts, and for the carrying on before the reconstituted Court or the new Court of all pending matters3,and may contain such other provisions as may appear to the Governor-General to be necessary by reason of the reconstitution or amalgamation.'

It would thus appear that this sub-section itself speaks of the amalgamated court as a new court. In other words the statutory provisions under which the Order was made themselves describe or declare the amalgamated court to be a new court. In that view of the matter it appears to me that the present Court has got to be held to be a new court. Admittedly the petitioner was not a judge or the Chief Justice of the new court. Learned counsel for the respondents has relied upon a Full Bench case of this Court in : AIR1955All269 . That was a case where the question for decision was whether this Court had the power to enrol advocates acting under the authority conferred upon the erstwhile High Court of Allahabad under paragraphs 7 and 8 of the Letters Patent which were reserved to be exercised by the new High Court by paragraph 8 of the Order, It is true that in that decision there are words which can be construed ito mean that the present High Court is a continuation of the late Allahabad High Court, but I am in agreement with my brother Bhargava that that decision cannot be deemed to be necessarily laying down that the present High Court was a continuation of the old High Court. In my opinion the language of Sub-section (2) of Section 229 of the Government of India Act, 1935 leaves no alternative but to hold that the present court is a new court. The petitioner not having given any undertaking not to practise in this Court the proviso to Section 2 of the Supreme Court Act would not apply. I therefore do not see any escape from the conclusion that the petitioner has a right to practise in this Court by virtue of the provisions of Section 2 of the Supreme Court Act.

It is my extreme regret that I cannot agree with my brother Bhargava that any of the principles of interpretation of statutes enjoins us to rend the proviso to Section 2 so as to treat the undertaking given in respect of the old Allahabad High Court to be the undertaking for the new Allahabad High Court also. It is trite saying that the first and fundamental rule of interpretation of statutes to which all others are subject is that the plain words of the statute must be given their true, natural and plain meanings. If the test is explicit the test is conclusive. It is only when the language of a provision is ambiguous or capable of two interpretations that the court can import other considerations in finding out its true meanings. In my opinion the language of the proviso to Section 2 is crystal clear and it is not permissible to extend the scope of the undertaking given by the petitioner as an undertaking even in respect of the present court. Apart from it, it is well established law that the proviso being an exception to the enacting clause has got to be strictlyconstrued, and it is not possible to widen its scope by importing something in it which its language does not expressly warrant. I may add that the second proviso to Clause 8(2) of the order cannot act to the detriment of the petitioner : firstly, because of the existence of Clause 18 of the Order which makes the provisions of the Order subject to any subsequent Jaw passed by a competent Legislature or authority with regard to the new High Court and admittedly the Supreme Court Act which was passed in 1951 is later in time than the Order which, as already said, was made in 1948, and applies to the new High Court also, and secondly, because of the existence of the words 'Notwithstanding anything contained in the Indian Bar Councils Act, 1926, or any other law regulating the conditions' appearing in Section 2 of the Supreme Court Act which have the effect of making other laws subject to Section 2 of the Supreme Court Act and not vice versa.

The words 'any other law' will include Clause 8 of the Order along with its provisos. It therefore appears to me that there is no difficulty in extending to the petitioner the benefit of Sectioin 2 of the Supreme Court Act. For these reasons I have come to the conclusion that the petitioner has a right to appear even before the Allahabad Bench of this Court and also before all Courts subordinate to this Court whether appeals against their decisions lie before the Allahabad Bench or the Lucknow Bench.

32. Coming to the next submission of the Attorney General who appeared for the petitioner, i.e., the one with regard to the infringement of the fundamental right of the petitioner guaranteed under Article 19(1)(g) of the Constitution, it may be stated that the first question for enquiry would be whether a legal practitioner or an advocate has got a fundamental right to act or plead before a Court. The profession of law is not confined merely to acting or pleading in a Court of law but also extends to consultation work and other legal spheres, as for example writing of books and contributing to legal journals as also legal research. That the legal profession is a profession or an occupation within the meaning or Clause (g) of Article 19(1) of the Constitution cannot be seriously doubled and no person can be unreasonably deprived of the right to carry on the profession. In other words every citizen of India has a fundamental right to carry on the profession of law subject to reasonable restrictions. The question however is whether the right to act and plead is also a fundamental right and can be enforced by the Courts if a person is being restricted from enforcing that right by restrictions other than those which are reasonable. Even in England a barrister has got a legal righ't to practise his profession except where some convention or statute prohibits it.

Merchant in his book on Barristers has stated the law in the following words :

''As soon as a person has been called to the Bar, he can, unless he is prohibited either by statute or by some convention of the bar or some condition of limitation imposed upon him by hisIm, practise as counsel in accordance with the rules of the profession.'

Under the Constituition of United States of America Amendment 14, no State can make of enforce law which abridges the privileges or immunities of the citizen of the United States. The American Counts have held that the right to practise law in the State Courts is not a privilege of immunity of the citizens of United States. (Sea In re Lockwood (1894) 154 US 116 (117) : 38 Law Ed 929 at p. 930, Ex parte, A. H. Garland, (1866) 18 Law Ed 366 and Bradwell v. Illinois, (1873) 21 Law Ed 442). However, in my opinion, there is mo good ground to apply the American decisions in this country. It would be noticed that the language of the 14th amendment is very differently worded and is narrower in scope than Article 19(1)(g) of the Constitution. Whereas in the United States the law has been put in a negative form prohibiting the making or enforcing of any law which abridges the privileges or immunities of the citizens of United States, in our Constitution it has been positively enacted that every citizen of India is free, ito carry on whatever profession, occupation, trade or business he likes. In Clause (g) of Article 19(1) of the Constitution before the word 'profession' the word 'any' has been deliberately used only in order to make the scope of the clause extremely wide. Therefore whereas all that the American Constitution guarantees are the existing rights and immunities, our Constitution not only guarantees the right to carry on any of the existing business or occupation but also any other profession, trade or occupation which may come to recognition at any Lime in the post-Constitution era.

In my opinion the language of our Constitution is far wider and definitely more generous than the language of its counter part in the American Constitution. I do not see why a person has not a fundamental right to act and plead in a court of law subject of course to reasonable restrictions. Clause (6) of Artilce 19 of the Constitution runs as follows :

'(6) Noithing in Sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, in the interests of the general public,

reasonable restrictions on the exercise of the right conferred by the said sub-clause, and in particulars nothing in the said sub-clause, shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to,--

(i) the professional or technical qualifications necessary for practicising any profession or carrying on any occupation, trade or business, or,

(ii) the carrying on by the State or by a corporation owned or controlled by the State, ot any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.'

It is manifest that the rights guaranteed under Sub-clause (g) of Article 19(1) are subject to whathad been provided for in Clause (6). Therefore ifthe provisions of law or the rules of a court require that no one shall appear in a High Court otther than the one in which he is enrolled or that a pleader cannot appear except in the courts within the judgeship in which he is enrolled or that a person who is not fully qualified cannot he enrolled as an advocate or a pleader, the same cannot he taken exception to because they are restrictions which are reasonable and can validly be imposed under Clause (6) of Article 19 of the Constitution. In the case of Ram Dayal v. Shanker Lal, AIR 1951 Hyd 140 (FB) it was held by a Full Bench, of that Court than a right to act and plead before a Court is a fundamental right. A Division Bench of our Court in In the matter of Phool Din : AIR1952All491 and that of the Orissa High Court in Bishnucharan v. State of Orissa, AIR 1952 Orissa (sic) also appear to have taken the view that the right to act and plead is a fundamental right though under Clause 6 of Article 19(1) reasonable restrictions can be imposed under which the right can be exercised.

In the case of Mulchand Gulabchand v. Mukund Shivram : AIR1952Bom296 Chief justice Chagla observed as follows:

'Therefore the only right of a lawyer that has been safeguarded under the Constitution is the right to practise his profession. Now, that right not being an absolute right, no absolute right is conferred upon the lawyer by the provisions of the Constitution. The Constitution guarantees to the lawyer such right as he has under his charter. If any such right is affected or contravened then undoubtedly he can rely upon the provisions of Article 19(1). But if the right given to him is a limited right and that right is not in any way affected, he cannot claim a wider right or a larger right under the Constitution.'

That was a case where the Bombay High Court had to consider as to whether or not a rule which provided that no party shall be represented by a legal practitioner in an arbitration proceeding under the Bombay Co-operative Societies Act was or was not a valid provision. This Bombay case was followed by the Madras High Court and the same view of Article 19(1)(g) was taken there by Subba Rao, J., (see Rangaswamy v Industrial Tribunal : (1953)IILLJ24Mad ). I have already held above that the petitioner has got a legal right under the provisions of (Section 2 of the Supreme Court Act to practise in this Court and therefore the order of the Chief Justice dated 25th November 1948 prohibiting him to appear in certain Courts in this State and before the Allahabad Bench of this Court is an unreasonable and void restriction which has got to be struck down. It may also be added that I have already said in an earlier part of this judgment that the provisions of Clause 8(2) of the Order stand superseded by Section 2 of the Supreme Court Act to the extent to which that provision goes, that is to say, in regard to the right of a person enrolled in the Supreme Court to practise in this Court. I, therefore, hold that even the second submission of the learned Attorney General is well founded.

33. It is not necessary for me to enter into a consideration of the third submission because my brother Bhargava in a very learned judgment has fully dealt with the matter and I am in respectful agreement with him on that point. For the reasons given in his judgment which I do not consider necessary to repeat in my own, J am of the opinion that the petitioner's third ground is also fully substantiated. I may however add that I am unable to subscribe to the view that had it hot been for the supplementary affidavit which was filed by the petitioner at the last stage we would have refused to interfere on the ground of delay. I have taken the view that there has been an infringement of a fundamental right and that ever since the year 1951 when the Supreme Court Advocates Act was passed the petitioner had an absolute right to practise in the Allahabad Bench also and before all Courts subordinate to this Court.

Even if it be assumed that the petitioner did not assert this right for a long time that would not either destroy the right nor make its enforcement difficult. The right to practise is a recurring right with a recurring cause of action and the petitioner would have been justified in invoking the aid of this Court at any stage and in my judgment this Court could not have abdicated its functions by refusing to enforce those rights. It must be remembered that once it is held that a fundamental right has been infringed the Court would be extremely reluctant not to interfere. In the present case I have already said above that the petitioner has a recurring cause of action and therefore there can be no question of delay. Once I hold that there is an infringement of a fundamental right J see no option but to interfere and justify the trust which the Constitution has reposed in us to see that 'ours is a Government of laws aad not of men,' and the fundamental rights are sacred the destruction of which would have to be resisted by this Court with all its might.

34. Now With regard to the objection to the grant of any relief to the petitioner on what have been described as equitable grounds. Jt has been contended by learned counsel for the respondent that in view of the petitioner having given an undertaking not to practise within the jurisdiction of the erstwhile High Court of Allahabad the rules of propriety demand that the petitioner should not be allowed to practise within the areas over which he exercised jurisdiction first as a Puisne Judge and thereafter as the Chief Justice. In my opinion this argument is hardly tenable in view of the changed circumstances that now exist. It is common ground that the undertaking is nothing but a unilateral contract which not only binds the petitioner but also those at whose instance it was given. The question is : did the petitioner ever undertake to abide by a situation which has now arisen? The result of the successive orders of the Chief Justice is that a good deal of work has been diverted from the Lucknow Bench to the High Court Bench at Allahabad with the result that whereas under his undertaking the petitioner was fully entitled topractise before the Chief Court of Oudh and later on the Lucknow Bench and appear in all cases of whatever description which arose in Oudh, he has been deprived to a considerable extent of that right inasmuch as two of the distiricts have been taken away from the Lucknow Bench and annexed to the Allahabad Bench and a large number and class of cases arising in the entire area of Oudh in respect of which there was no undertaking have been directed to be tried at Allahabad.

I have not the least doubt in my mind that in the circumstances the undertaking has been rendered incapable of enforcement and has lapsed and that too not due to the conduct of the petitioner but due to the circumstances over which he had no control and to the creation of which he was not a party. The undertaking therefore has ceased to exist and is dead. I see no impropriety on the part of the petitioner in not allowing himself to be haunted by its ghost which alone now remains. In my opinion therefore even on the ground of impropriety the petition cannot be opposed. Jn my judgment this petition must be allowed and I would issue an order in the nature of mandamus calling upon the respondents not to give effect to the order dated 25th November 1948 and not to restrain the petitioner from appearing before the Allahabad Bench of this Court as also all the Courts subordinate to this Court. I agree that the petitioner should be awarded a sum of Rs. 200/- as costs.

35. BY THE COURT : The petition is allowed with costs which we fix at Rs. 200/- so that a writ in the nature of mandamus will issue to the opposite party not to give effect to the order of the Hon'ble the Chief Justice dated 25th November, 1948, and not to restrain the petitioner from appearing before the Allahabad Bench of this Court and the courts subordinate to it.


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