D. Basu, J.
1. The Petitioners who are citizens of India, challenge the constitutionality of the Letters Patent of 1865, the Calcutta High Court (Jurisdictional Limits) Act, 1919 and Section 34(2)(3) of the Advocates Act, 1961 on the ground that they offend Article 14 of the Constitution. In substance, the prayer of the Petitioners is that (a) the division of the jurisdiction of this High Court into Original and Appellate, in so far as they are founded on the foregoing laws, should cease to exist and (b) the classification of legal practitioners into Advocates, Barristers and the like should be replaced by a single integrated class of legal practitioners, namely, Advocates.
2. In view of the seriousness of the questions involved, instead of issuing a Rule nisi on the ex parte motion on behalf of the petitioners, the application was directed to be heard after serving notice upon the Opposite Parties. None of the Opposite Parties preferred to file any Affidavit-in-Opposition. The Attorney-General, upon whom a specific notice, was issued, declined to appear. The Union of India (O.P. 5) appeared through Advocate Mr. Ray, but at the hearing, he did not address the Court. Arguments were advanced by Mr. Sankar Ghose on behalf of the Bar Library Club (O.P. 7) and his arguments were generally supported by the Advocate-General, appearing on behalf of himself as well as the Chief Justice of this Court (O.P. 3) and the State of West Bengal (O.P. 6). Mr. Dutt, appearing on behalf of the Bar Association, supported the petition.
3. The Court, at this stage, is not called upon to go into the merits of the petitioners' case even from a prima facie standpoint, for it has been settled by a number of decisions of the Supreme Court that a Court cannot dismiss a petition under Article 226 in limine where the petition raises arguable issues. The only questions for determination at this stage, therefore, are
(i) Whether the petition raises arguable issues;
(ii) Whether such issues are justiciable;
(iii) Whether the petitioners have locus standi to bring this petition;
(iv) Whether there is any defect in the averments in the petition.
4. I. It has been held by the Supreme Court, in particular, that if there are arguable issues, rule nisi should not be refused, where invasion of fundamental rights or unconstitutionality is alleged (Tata E. & L. Co. Ltd. v. Asstt. Commr. of Commercial Taxes, : 2SCR751 ; Mohd. Hanif v. State of Assam, : 2SCR197 ).
5. II. Mr. Ghose is right in his submission that even where there is an arguable issue, a petition under Article 226 may be thrown out where the issue is non-justiciable or such that no relief may be available in a proceeding under Article 226 (Gunwant Kaur v. Municipal Committee, : AIR1970SC802 ; Century Spg. and Mfg. Co. v. Municipal Committee, Ulhasnagar, : 3SCR854 ).
6. But he is not correct in his suggestion that statutes relating to the sphere of public law, such as the jurisdiction of the High Court, are immune from a challenge as to unconstitutionality. The learned Advocate-General was candid enough to submit that the constitutionality of any statute may be challenged; it cannot be otherwise inasmuch as the very power of the Legislatures in India, to make laws, under Article 245(1), is subject to the provisions of the Constitution. In Vinod Kumar v. State of H. P., : AIR1959SC223 , thus, the Supreme Court struck down a law on the ground that it had not been passed by a Legislature duly constituted under the Constitution. The validity of the Presidential and Vice-Presidential Act and the Rules made thereunder has been challenged on two occasions (N. B. Khare v. Election Commn. of India, : 1SCR648 ; Shiv Kirpal v. Giri : 2SCR197 ) and on neither occasion did the Court say that the matter was non-justiciable.
7. In this context, it would also be useful to refer to the facts in the case of Prem Chand v. Excise Commr., U. P., : AIR1963SC996 . In that case, the Supreme Court itself had by a judicial order made at the time of issuing a rule nisi on a petition under Article 32, imposed the condition that the petitioner should make a deposit of a specified sum as security for costs, as a condition precedent for the hearing of the petition under Article 32.
The power to call for such security was conferred by Order 35, Rule 12 of the Rules made by the Court under Article 145 of the Constitution, The majority of the Court held that the rule-making power of the Court was subject to the fundamental right and that the right to move the Supreme Court under Article 32 was a guaranteed right which could not be defeated by any Rule made by the Supreme Court, imposing a condition precedent at the threshold of the hearing, so that in case of non-compliance of the condition, the petitioner would not be heard at all. The Court, therefore, not only struck down the Rule in question, which conferred such power, as invalid, but also 'set aside' the Court's own judicial order 'calling upon the petitioners to furnish security,' presumably because it became without jurisdiction and void as soon as the Rule which conferred the power to make such order was pronounced void. The decision in Premchand's case was reviewed and upheld by the majority in Naresh Sridhar Mirajkar v. State of Maharashtra, 0044/1966 : 3SCR744 .
8. It is true, of course, that the Legislature or any other law-making authority cannot be commanded to make a constitutional and proper law to replace an unconstitutional law, as has been suggested in para. 16 (d) of the Petition, but there is no reason why the Petitioner cannot ask for an appropriate writ or order to declare the Letters Patent or the two statutes mentioned in the petition as invalid owing to contravention of Article 14 of the Constitution and to restrain the, proper authorities from enforcing them.
9. III. It was next contended by Mr. Ghose that at any rate, the Petitioners, who are not lawyers, have no locus standi to urge for a unification of the Bar or to challenge any provision in the Advocates Act which goes against it.
10. But the Petitioners seek relief also against the Letters Patent and the Jurisdictional Limits Act which divide the jurisdiction of the High Court, now constituted under Article 214 into two halves, Original and Appellate, with a demarcating line artificially laid down at some point of time prior to the making of the Constitution. A citizen, who is a potential litigant, may possibly be aggrieved by any such artificial division, having different procedural and substantive legal incidents. But, then, the petition does not disclose the facts as to how the Petitioners have come to be aggrieved by such division.
11. There is little doubt that the division in question rests on historical facts, such as the special importance of the Presidency town of Calcutta to the colonial settlers and the genesis of the High Courts and the mofussil courts from different sets of courts set up by the East India Company and the British Rulera (vide Introduction by Ormond to the Rules of the High Court, Original Side, published in 1940),--which historical facts do no longer exist.
12. It has been held In several cases that a classification which was reasonable in the background of historical circumstances existing at a particularpoint of time, may cease to be reasonable after a change in those external circumstances (State of Raiasthan v. Manohar Singhji, : 1SCR996 ; Jia Lal v. Delhi Administration, : 2SCR864 ). I refer to these decisions not to make any pronouncement on the merits but to show that, on proper pleadings, the jurisdictional laws referred to may be challenged, after the inauguration of the Constitution, as repugnant to Article 14, and that at the instance of a citizen, who may not be a lawyer.
13. The real obstacle of the Petitioners on the present application is that it does not make the necessary averments. It is settled law that the classification made by a Legislature will be presumed to be reasonable unless the contrary is alleged and established by the Petitioner. It is, therefore, incumbent upon the Petitioner, who invokes Article 14, to furnish all facts, in his affidavit, which would render the classification unreasonable and also show how he has been affected by the offending law (vide Ramnath Verma v. State of Rajasthan, : 2SCR152 ; V. S. Rice Mills v. State of A. P., : 7SCR456 ; Mangal Singh v. Union of India, : 2SCR109 ). Unless such averments are there in the petition, the Opposite Parties get no opportunity to controvert such allegations or to set up other grounds upon which the classification may be sustained.
14. I am, therefore, satisfied that on the present application the Petitioners cannot get a Rule nisi. I dismiss the petition in limine on this formal ground alone so that the Petitioners, if so advised, might bring a fresh application, by themselves or along with others, with proper averments. There would be no order as to costs for this hearing.