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Bar Council of Rajasthan Vs. Board of Revenue and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 403 of 1968
Judge
Reported inAIR1976Raj105; 1975()WLN644
ActsAdvocates Act, 1961 - Sections 58(4); Advocates (Amendment) Act, 1964; Legal Practitioners Act - Sections 17 and 18
AppellantBar Council of Rajasthan
RespondentBoard of Revenue and ors.
Appellant Advocate H.P. Gupta, Adv.
Respondent Advocate B.R. Arora, Adv. for No. 3,; U.R. Tatia, Adv. for No. 13,;
DispositionPetition allowed
Cases ReferredE. C. Agarwala v. Bar Council of Mysore and Bar Council of India
Excerpt:
.....- section 58 and legal practitioners act--section 18--revenue board had no power to issue fresh, licences to persons as 'revenue agents' after 1st december 1961.;we hold that after 1st december, 1961, the board had no power of admission of revenue agents and therefore it had no power to issue new certificates under section 18 of the legal practitioners act because the power to issue a certificate under that act is subject of prior grant of admission, which power has been taken away by repeal of section 17 and also because what has been saved or restored by section 58(4) of the advocates act is only the power to renew a certificate or issue one if admission had taken place before that date. - - if the petitioners had appeared at the examination and qualified themselves as..........admission of revenue agents was concerned.the board could not issue fresh certificates. it could issue certificates only in those cases in which a candidate had been admitted and for one reason or the other a certificate had not been issued to him before 1-12-61. the petitioner has relied on a decision of the hon'ble the calcutta high court in sunil kumar sinha ray v. state of west bengal, air 1963 cal 614 in which the effect of the repeal of sections 6. 7, 8 and 9 of the legal practitioners act (relating to 'mukhtars') by section 59(2) of the act came up for consideration. it was claimed by the petitioners in that case that as they had prepared themselves for the mukhtarship examination and had paid the fees for appearance in the examination, they had acquired a vested right to.....
Judgment:

Jain, J.

1. This is a petition by the Bar Council for Rajasthan challenging the validity of the licences issued by the Board of Revenue, respondent No. 1, to respondents Nos. 2 to 23, to practise as revenue agents. It has been stated that after the coming into force of Chapter III of the Advocates Act, 1961, hereinafter referred to as 'the Act', Sections 6, 7, 18 and 37 of the Legal Practitioners Act, 1879. and so much of Sections 8, 9, 16, 17, 19 and 41 of that Act as related to the admission and enrolment of legal practitioners stood repealed, so that respondent No. 1 had no authority thereafter to enrol any one as a revenue agent. It has been pointed out that, even so, respondent No. 1 enrolled respondent No. 2 as a revenue agent on or about March 31, 1965, and respondents Nos. 3 to 23 sometime after December 1, 1961, and that respondent No. 1 was renewing their licences every year. The petitioner made a representation to respondent No. 1. but it was rejected by order Ex. G dated March 1, 1968 on the ground that it had the authority to renew the licences until the coming into force of Chapter IV of the Act. The petitioner has challenged the jurisdiction and authority of respondent No. 1 to grant fresh licence after December 1, 1961, or to renew the licences of the revenue agents, on a number of grounds, and has prayed for quashing order Ex. G dated March 1, 1968 and for the other reliefs mentioned in the petition.

2. Respondents Nos. 1 and 2 have filed separate replies traversing the contentions of the petitioner.

3. The Act received the assent of the President on May 19, 1961. Section 1(3) of the Act provides that it shall come into force on such date as the Central Government may. by notification in the official gazette, appoint, and different dates may be appointed for different provisions. It is not in dispute that the various provisions of the Act were brought into force as follows-

ProvisionsDate appointedChapters I, II and VIIChapters I, II and VIIChapter III and S. 50 (2)December 1, 1961.Section 50(1)December 15, 1961,Sections 51 and 52January 24, 1962.Section 46March 29. 1962.Section 32 and Chapter VI (except Ss: 50 (1) and (2), 51, 52 and 46 which had already come into force) Chapter VJanuary 4, 1963, and September 1, 1963.

Chapter IV has not been brought into force so far.

4. We have already made a mention of those provisions of the Legal Practitioners Act which stood repealed on December 1, 1961 when Chapter III of the Act came into force, for that was the requirement of Sub-section (2) of Section 50 of the Act. It appears that some doubt arose about the issue and renewal of licences after December 1. 1961, and that led to the passing of the Advocates (Amendment) Ordinance, 1962 which was replaced by the Advocates (Amendment) Act, 1962. Section 58 was thereby inserted in the Act and was deemed always to have been inserted. Another amendment was made on May 16, 1964 by Act XXI of 1964 by which the words 'issue and renewal' occurring in Sub-section (4) of Section 58 of the Act were replaced by the words 'renewal or the issue by way of renewal'. It cannot therefore be doubted that after May 16, 1964 respondent No. 1 could not issue the certificate of a revenue agent except by way of renewal. The licences which were issued to respondents Nos. 2 and 3 to 23 were therefore without authority as they were issued after May 16, 1964 and were not by way of renewal.

5. The question remains whether the Board could issue fresh certificates during the period December 1, 1961 and May 16, 1964

6. It has been argued on behalf of the respondents that the natural meaning of the words 'issue and renewal' as they stood prior to 16-5-64 was that the Board could issue fresh certificates after 1-12-61, until Chapter IV was brought into force, and such certificates should be deemed to have been validly issued by virtue of Subsection (4) of Section 58 of the Advocates Act, 1961.

7. The Bar Council has, on the other hand, urged that as the function of the Chief Controlling Revenue Authority had been taken away in so far as the admission of revenue agents was concerned.the Board could not issue fresh certificates. It could issue certificates only in those cases in which a candidate had been admitted and for one reason or the other a certificate had not been issued to him before 1-12-61. The petitioner has relied on a decision of the Hon'ble the Calcutta High Court in Sunil Kumar Sinha Ray v. State of West Bengal, AIR 1963 Cal 614 in which the effect of the repeal of Sections 6. 7, 8 and 9 of the Legal Practitioners Act (relating to 'Mukhtars') by Section 59(2) of the Act came up for consideration. It was claimed by the petitioners in that case that as they had prepared themselves for the mukhtarship examination and had paid the fees for appearance in the examination, they had acquired a vested right to admission in the examination and to qualify as 'Mukhtars' and, in the absence of any express provision of law taking away that vested right, the repeal effected by Section 50, Sub-section (2) could not affect their position by virtue of Section 6 of the General Clauses Act. The argument was however repelled by Mitter J. as fallacious. He held that the Legal Practitioners Act did not vest anybody, who had not already acquired the necessary qualifications, with any right. If the petitioners had appeared at the examination and qualified themselves as 'mukhtars', their contention would have been better founded. It was held that it was clear from the preamble to the Advocates Act and Section 50. Subsection (2) that the Legislature meant to do away with different categories of lawyers and was taking steps in that behalf by preventing the further admission and enrolment of 'mukhtars'. The issue of a certificate to a 'mukhtar' under the Legal Practitioners Act was covered by its Section 7 under which a person was to be entitled to a certificate as 'mukhtar' 'on his admission under Section 6'. To be admitted under Section 6, a person had to acquire the qualifications thereunder mentioned, and comply with the rules made by the High Court in that behalf. It was held that Sub-section (4) of Section 58 was designed to safeguard the rights of the persons who had already acquired the necessary qualifications mentioned in Section 6 and the persons who had become qualified as pleaders or 'mukhtars' but to whom no certificate had been issued. It could not apply to persons who had not acquired the necessary qualifications under Section 6. Bose C. J. was of the view that there could hardly be any room for doubt that the right to appear in the examination and the obligation to hold the 'mukhtars' examination were also extinct as a result of the repeal of Section 6. The effect of Sub-section (2) of Section 50 of the Act was that no new 'mukhtar' would be enrolled after the coming into force of the provision. Sub-section (4) did not have the effect of reviving wholly the provisions relating to admission and enrolment. Sub-section (4) aimed at reviving only the provisions relating to the actual grant or issue of certificate for the first time or renewal thereof, in a case where such certificate had not been for any reason granted, or issued, or where renewal of certificate already granted was necessary. We are in respectful agreement with that view.

8. The next case relied on by the petitioner is Krishna Kumar Saxena v. The Chief Justice of the High Court of Judicature for Allahabad, AIR 1969 All 112 where, again, the words 'issue and renewal' came to be interpreted in relation to pleaders. It was held that Section 58(4) provided for the continuance of the power of renewal of the existing certificates. Initially the power to issue a certificate was also continued to cater for those limited class of cases where the High Court had, prior to 1-12-61. made an order of admission of a person as a pleader but had not, for some reason, been able to issue the requisite certificate and that after 1-12-61 the High Court did not possess the power to admit or enrol fresh persons as pleaders.

9. Then there is the decision of the Hon'ble the Mysore High Court dated 26-3-1964 reported in (1964) 2 Mys LJ 90 in E. C. Agarwala v. Bar Council of Mysore and Bar Council of India, which has been reproduced in the Journal of the Bar Council of India, Vol. II (3) August 1973 at pp. 411 to 421, where a similar question arose with respect to the interpretation of Section 58(4) of the Act in relation to the repeal of Sections 6 and 7 by Section 50(2) of the Act. It was held that the said Sections 6 and 7 specifically spoke of the admission of a person as a pleader. It may toe that in practice there may be no formal order admitting a person as a pleader and all that is done is to issue him a pleader's certificate if he possesses all the prescribed qualifications and if he be not otherwise debarred, but in the eye of law there are two stages, namely, admission of a pleader and the issue of a certificate though in practice for the sake of convenience these two acts may merge into one. By Sub-section (4) of Section 58, the power of the High Court to issue or renew a certificate alone has been restored but that section does not restore to the High Court the power to admit any one as pleader. It has been held that the High Court could issue a certificate only of a legal practitioner or renew only a certificate issued to a legal practitioner. The petitioners, 400 in number, who could not have been legally admitted as pleaders after 1-12-61, but were so enrolled, were held to have been wrongly admitted as pleaders, and this view was taken in spite of the hardship that was going to be caused to the several persons and the Court.

10. We see no reason to differ from the view which has been taken in three cases mentioned above. Indeed the further amendments of Section 58 and the special provisions which have been made in respect of the Mysore cases fey Section 58B, confirm the view that the interpretation put upon the words 'issue and renewal' is correct and the law has been amended accordingly. The provisions of Sections 6, 7, 8 and 9 of the Legal Practitioners Act are in pari materia with the provisions of Sections 17, 18 and 19 thereof and we have no hesitation in putting the same interpretation on the latter sections.

11. No arguments were addressed on behalf of the Board. Learned counsel for the other respondents however urged that the cases on which the learned counsel for the Bar Council relies do not state the correct interpretation of the law. It was urged that it was not correct to say that no certificate could be granted, or enrolment made, until there had been a prior or simultaneous admission to the particular class of legal practitioners under the repealed provisions. It was contended that under the Legal Practitioners Act, three stages, namely, (i) admission, (ii) certificate or renewal and (iii) enrolment were contemplated by Sections 17, 18 and 19 of the Act and formal order of admission was required to be made, while under the Act, they are rolled into one. In this connection our attention was invited to Section 17 of the Act which says that every State Bar Council shall prepare and maintain a roll of advocates in which there shall be entered the names and addresses of all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act. 1926, and all other persons who are admitted to be advocates on the rolls of the State Bar Council under this Act. Thus, under this Act, the admission and enrolment are simultaneous and a certificate of enrolment is issued to every person whose name is entered in the roll. Section 24 provides for the qualifications of a person who can be admitted as an advocate on the State roll. When as per section 26 of the Advocates Act, an application for admission is made, the State Bar Council refers the same to its enrolment committee and such committee disposes of the applications in the prescribed manner. Thus, under the Act it was not necessary to declare admission. By the repeal of Sec. 17, the necessity of formal order or declaration thereunder was dispensed with, but the power to issue certificates remained untouched and the Board could issue certificates upon a simple application filed before or after 1-12-61 there toeing now no requirement of prior and formal order of admission. For this view, the learned counsel relied upon a passage in the Allahabad judgment AIR 1969 All 112 at para 6 wherein the learned Judge observed that with effect from 16-5-64, the preexisting power of renewal or the issue by way of renewal alone remained in operation. The learned counsel wants us to conclude that these observations mean to convey that before 16-5-64, there was power to issue fresh certificates available to the Chief Controlling Revenue Authority, but in view of the concluding observation of the learned Judge of the Allahabad High Court at para 11 which has been referred to above, such an interpretation cannot be accepted.

12. Lastly, it was urged that what Section 58(4) of the Advocates Act provides is that in spite of the repeal of the sections of the Legal Practitioners Act relating to admission and enrolment, the certificates issued after 1-12-61 shall be deemed to be valid. The plain meaning of the Section is to validate all certificates which would have been, tout for the saving provision, invalid and this meaning should not be destroyed by placing a strict and hypertechnical construction that the validating provision does not apply to the certificates which are issued without technical formality of the so-called admission. We have considered this submission carefully and in view of what we have discussed above, the view that we are taking is consistent with the intention pervading the Act.

13. We respectfully agree with the view that has prevailed in the Hon'ble High Courts of Calcutta, Allahabad and Mysore, and we hold that after 1st December, 1961, the Board had no power of admission of revenue agents and therefore it had no power to issue new certificates under Section 18 of the Legal Practitioners Act because the power to issue a certificate under that Act is subject to prior grant of admission, which power has been taken away by repeal of Section 17 and also because what has been saved or restored by Section 58(4) of the Advocates Act is only the power to renew a certificate or issue one if admission had taken place before that date.

14. It follows that the fresh certificates granted toy the Board after 1-12-61 were without authority as in none of the cases of the respondents admission had taken place or had been directed before 1-12-61. We realise that the view which has prevailed with us might disentitle respondents Nos. 2 to 23 from practising as revenue agents, but we have no alternative tout to pronounce on the law as it stands.

15. The petition is allowed and the order of the Board dated 1-3-68 is quashed, and the certificates and licences granted to the respondents after 1-12-61 are cancelled. Respondent No. 1 is directed not to issue any fresh certificates except by way of renewal of the certificates granted by it before 1-12-61. In the circumstances of the case, we make no order as to costs.


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