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Chunilal Basu and Anr. Vs. the Hon'ble Chief Justice of the High Court at Calcutta and Ors. (15.05.1972 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberC.R. No. 1452 (W) of 1971
Judge
Reported inAIR1972Cal470,76CWN681
ActsConstitution of India - Articles 14, 225 and 372; ;Government of India Act, 1919 - Section 106; ;Government of India (Amendment)Act, 1935 - Section 223; ;India (Adaptation of Existing Laws) Order, 1947; ;Independence Act, 1947 - Section 18(3); ;Advocates Act, 1961 - Sections 34(2) and 50(2); ;Calcutta High Court (Jurisdictional Limits) Act, 1919
AppellantChunilal Basu and Anr.
RespondentThe Hon'ble Chief Justice of the High Court at Calcutta and Ors.
Appellant AdvocateK.J. John, Adv.
Respondent AdvocateGouri Nath Mitter, Adv. General, ;S.C. Bose, Adv., ;D. Gupta, Sr. Standing Counsel, ;B.C. Basak, Jr. Govt. Adv., ;C.R. Dutt and ;Suprakash Banerjee, Advs. (for Nos. 1, 3, 8 and 9), ;D.N. Das, ;Bhagab
DispositionApplication fails
Cases ReferredBabul Ch. Mitra v. The Chief Justice and
Excerpt:
- order1. the petitioners who are citizens of india have challenged the constitutionality of the letters patent of 1965, the calcutta high court (jurisdictional limits) act, 1919 and section 34(2)(3) of the adovcates act, 1961 on the ground that they offend the provisions of article 14 of the constitution of india2. similar application was filed by the petitioner no. 2 sri. e. h. tippo and and another which came for consideration before d. basu j, as to its maintainability. the said petition was dismissed on the ground that there were not sufficient averments to show which would render the alleged classification unreasonable and also to show how they were affected by the offending law. it was held that unless such averments were made the opposite parties could not get an opportunity to.....
Judgment:
ORDER

1. The petitioners who are citizens of India have challenged the constitutionality of the Letters Patent of 1965, the Calcutta High Court (Jurisdictional Limits) Act, 1919 and Section 34(2)(3) of the Adovcates Act, 1961 on the ground that they offend the provisions of Article 14 of the Constitution of India

2. Similar application was filed by the petitioner No. 2 Sri. E. H. Tippo and and another which came for consideration before D. Basu J, as to its maintainability. The said petition was dismissed on the ground that there were not sufficient averments to show which would render the alleged classification unreasonable and also to show how they were affected by the offending law. It was held that unless such averments were made the opposite parties could not get an opportunity to controvert such allegations or to set up further grounds for which the classification, if any, may be sustained. D. Basu. J, however, permitted them to file fresh application either by themselves or along with others with proper averments. The said order was passed in C. O. 6796 (W) of 1968 on Jan. 25, 1971.

3. After that, the present application has been filed on 5-2-1971.

4. The petitioner No. 1 is an Advocate practising in this High Court. The petitioner No. 2 is a journalist, auditor, printer and publisher of various newspaper-periodicals and a Director of Engineering Times Publication (P.) Ltd. having its registered office at 8. Dharmatala Street. Calcutta. They made separate averments of their own while challenging the impugned Acts. According to the petitioner No. 1, he is to practise even before the Appellate Side of this High Court and also in the mofussil Court like Alipore. In Alipore Court he can be directly engaged by the client and he can also receive his fees directly from them. Whereas in the Original Side he can only accept the brief through attorneys and his fees through them. Direct appointment and payment of fees according to him is full proof original and impressive and also it is satisfactory. His further contention is that the Original Side's rules, customs and practices affect the petitioner's right to practise freely and without any hindrance and as such these rules, customs and practice are discriminatory. By way of example he has said that there are two lists (i) one for Original Side (H) and another for Appellate Side. For this procedure he is to incur unnecessary expenditure for subscribing two lists.

5. The petitioner No. 1 further states that the provisions of the Letters Patent as well as Calcutta High Court (Jurisdictional Limits) Act, 1919 are illegal, void and ultra vires and injurious to the petitioner parctising as an Advocate with all his rights and privileges conferred by the Advocates Act. 1961 and/ or discriminatory under Article 14 of the Constitution of India.

6. Next comes the averments made by the petitioner No. 2 who is a journalist about whom reference has already been made. In connection with carrying his profession as a publisher and owning properties and in course of his business both at Calcutta and outside of its jurisdiction he has to file frequently cases in different courts. His contention, inter alia, is that the trial of suits in the very first instance by a High Court Judge is accredited with much better advantages with privileged limitations regarding the appeal stage, and that such adjudication eventually turns out to be more speedy, economic and convenient, and that such advantage is not available in Alipore or other Mofussil Courts. His further contention is that had there been a single jurisdiction and system of doing justice at least within a conceivable and reasonable set of conditions including area, forum, facilities, representation by Advocates etc., a person may get much better treatment and also good result in such cases.

7. Both the petitioners have challenged the validity and vires of the Calcutta High Court (Jurisdictional Limits) Act. 1919 passed in pursuance of/or in exercise of the powers vested by Clause 11 of the Letters Patent for the High Court of Judicature for the Presidency of Calcutta. They also have challenged the Letters Patent of the Year 1865 which was proclaimed by Queen Victoria in the Year 1865. It is said that the Letters Patent must have come to an end after the passing of the Government of India Act. 1915. Government of India Act. 1935 and particularly after the Constitution of India came came into force. It was contended that as the Letters Patent of the Year 1865 was illegal and ultra vires, the Act, namely, the Calcutta High Court (Jurisdictional Limits) Act, 1919 which was passed under the power derived from Clause 11 of the Letters Patent, 1865 should also be considered to be invalid, illegal and ultra vires. They further challenged the provisions of the above mentioned Calcutta High Court (Jurisdictional Limits) Act. 1919 which will be referred hereafter as the Act on the ground that the local limits as contained in the said Act which is still now invoked is wholly illegal, unreasonable and discriminatory and that the same having not been based upon any reasonable classification at present is hit by Article 14 of the Constitution of India. According to the petitioners, the Letters Patent aforesaid and all the acts, things and practices based thereupon are highly illegal and outrageous to the elementary concept of nationality and sovereignty and repugnant to the Constitution of India inasmuch as they are couched in the statutory language of the Victoria era and these documents should be considered to be colonial documents still being continued and as such it affects the sovereignty of India. Accordingly, they should be struck down,

8. The validity of Section 34(2)(3) of the Advocates Act, 1961 has also been challenged on the ground that it is hit under Article 14 of the Constitution of India.

9. Certain other allegations were made against the Attorneys and some controversies were raised in the matter of appointment of High Court Judges but at the time of hearing, these matters were not pressed. Accordingly they made a prayer for (a) issue of a Rule nisi calling upon the respondent to show cause why they should not be restrained from acting further in the purported exercise of power under the letters patent in the High Court at Calcutta; (b) restraining them to give effect to the limits as prescribed in the High Court (Juris-dictional Limits) Act. 1919 (XV 1919) prescribing ordinary original Civil Jurisdiction of the same; (c) the declaration that Section 34(2) and (3) of the Advocates Act 1961 is ultra vires the Constitution of India; (d) a Rule calling upon the respondent or such of them as may be appropriate to show cause why a writ of the nature of certiorari direrting the respondent or some of them to bring the relevant records and paper connecting with the letters patent for the High Court at Calcutta and the Rules prevailing in the ordinary original civil jurisdiction prescribing such limits as indicated in the Calcutta High Court (Jurisdictional Limits) Act, 1919.

10. On the averments of the petition a Rule nisi was issued to show cause against the prayers made by the petitioners as noted in the order dated May 26, 1971.

11. The notice having been served, tile respondents Nos. 4, 5 and 8 have filed affidavit-in-opposition. Respondent No. 4 is the Secretary, Bar Library Club. He has stated, inter alia, that the allegations of the petitioners are not true and none of the acts and also the Letters Patent as referred to in the Petition can be said to be ultra vires as the same do not offend Article 14 of the Constitution. According to him, requirements of any Rule of law or of practice Prevailing in the Original Side of this High Court is in no way incompatible with the petitioner No. 1's right as an Advocate under the Advocates Act.

12. The respondent No. 8, Registrar. Original Side has also supported the contention of respondent No. 4 in addition to that in his affidavit-in-opposition he has referred to some provisions of the Rules -- 'Rules of the High Court relating to application under Article 226 of the Constitution' and submitted that it ought to have been filed in the Original Side and that it was not maintainable in the Appellate Side of this Court. Respondent No. 5, Secretary. Bar Association has also filed an affidavit-in-opposition. He has seriously contested the allegations of respondent No. 8. Registrar. Original Side that such an application is not maintainable in the Appellate Side, like the petitioners, he has asserted that Sub-sections (2) and (3) of Section 34 of the Advocates Act, 1961 is ultra vires the Constitution,

13. All the respondents have been represented by different Advocates. Mr. R.C. Deb argued on behalf of the respondent No. 4 i.e., the Secretary of the Bar Library Club. The learned Advocate General also made his submission before this Court on behalf of the Chief Justice of the High Court at Calcutta but no affidavit-in-opposition has been filed by any other respondents except respondent Nos. 4. 5 and 8, Mr. Jhon appears on behalf of the petitioners. Mr. R.C. Deb and the Advocate General appeared on behalf of the Bar Library Club and Chief Justice respectively. Mr. Dutt appearing on behalf of the Secretary Bar Association has supported petitioners on their allegation regarding the validity of Sub-clauses 2 and 3 of Section 34 of the Advocates Act. Other learned Advocates adopted the arguments of Mr. Deb and the learned Advocate General.

14. Mr. Jhon has confined his arguments to three points:

(i) That the Letters Patent 1865 came to an end after the passing of the Government of India Act. 1915, Government of India Act 1935 and Independence Act, 1947. Even if it is said that Letters Patent, 1865 was not disturbed by those Acts, after the promulgation of the Constitution of India on the 26th January, 1950, the same could not survive. Accordingly, Letters Patent 1865 is illegal having lost its force and its authority being superseded by the Acts referred to above and as such it is ultra vires and the authorities concerned should be restrained from giving effect to the provisions of the said Letters Patent.

(ii) That the provisions of the Calcutta High Court (Jurisdictional Limits) Act, 1919 is bad in law and ultra vires the Constitution on two-fold grounds: (a) the said Act having been based under the authority of Clause 11 of Letters Patent, 1865 is bad and illegal, inasmuch as the Letters Patent had no force at the time when the said Act was enacted (b) that the areas butted and bounded in the said Act to show the boundary of Presidency Town of Calcutta was unreasonable and arbitrary. Accordingly it offends Article 14 of the Constitution. As such it is ultra vires and should be struck down.

(iii) That the provisions of the Sub-sections (2). (3) of Section 34 of the Advocates Act, 1961 are discriminatory inasmuch as it discriminates Advocates practising in the High Court exercising original jurisdiction in the matter of pleading and acting. Accordingly it also offends Article 14 of the Constitution.

15. These are the points which have been formulated by Mr. Jhon. It has been noticed that various allegations were made in the petition but at the time of argument Mr. Jhon has confined himself to the points as referred to above.

16. Before I proceed further I would like to give a short history as to how the High Court at Calcutta was constituted. The history how the judicial system existed during the time of East India Company and how the High Court at Calcutta was constituted has been noted by Mr. Herbert Cowell. Barat-law in his Tagore Law Lecture in the book named and styled as History and Constitution of the Courts and Legislative Authorities in India. There was great uncertainty in judicial administration during the time of the East India Company in India and in Bengal particularly. During the period of 1726 and 1774 the Mayor's Court at Calcutta which derived its authority and jurisdiction directly from the Crown in England was established. In this period the Company's Courts and the Courts manned by the representatives of the Mogul also continued to exercise jurisdiction concurrently and independently of the Mayor's Court. Thereafter one regulating Act was passed in 1773 authorising establishment of Supreme Court Next Supreme Court in Calcutta which derived authority and jurisdiction directly from the Crown was established. During this period also the Company's Courts continued to exercise concurrent and separate jurisdiction. The establishment of the Supreme Court at Calcutta by itself could not solve the problem. On the contrary, the Supreme Court came in direct conflict with the Courts established by East India Company exercising their own jurisdiction.

17. To stabilise the uncertainties and chaos in judicial administration. British Act, 1861 (24-25 Vict. C. A. P. 104) was passed authorising Her Majesty, by Letters Patent to erect and establish a High Court of judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort William and also to erect and establish High Courts of Madras and Bombay for those Presidencies. The said Act empowered Her Majesty, Queen of England to establish High Courts in India by Letters Patent and such Letters Patent to contain the power and jurisdiction of the different High Courts to be established. Pursuant to this. Queen of England issued Letters Patent of 1862 establishing the High Court in Bengal. The said Letters Patent was replaced by the Letters Patent of 1865. Since then the High Court at Calcutta came into existence.

18. I am tempted to refer to the observations made by Mr. E. C. Ormand, in his revised notes on the Rules of the High Court of Judicature of Fort William in Bengal (1914) in its introduction while giving short history about the establishment of High Court at Calcutta. Though it is a very concised one, it depicts a true picture of the uncertainties of the position of the judicial system during the time of East India Company necessitating the formation of the High Court at Calcutta. The following are his observations:

'It was, however, out of the growing pains of this conflict of jurisdiction and violence of dispute to which it led and the subsequent amicable composition of that dispute that the present High Court in its existing form was born.'

That is how High Court was established with all its powers and privileges.

19. After the establishment of the said High Court so far as the Presidency Town of Calcutta was concerned, it effected a merger of the Supreme Court with other Courts as existed during the time of East India Company. In the meantime the extinction of the East India Company was completed and the Mofussil Courts which were Company's Courts were taken over by the Crown and they were made Subordinate to the High Court. Thus by the measures connected with the establishment of the Calcutta High Court there was, for the first time, created a unified judicial system for the whole province of Bengal under a single uniform control, that of the High Court itself.

20. As already referred, in 1865 new Letters Patent replacing those of 1862 were issued. The opposite parties' Contention is that under those Letters Patent, from then upto the present day the High Court at Calcutta drew its jurisdiction with certain modifications made at times by local legislature.

21. In this background it is to be considered whether these Letters Patent are still in existence which might be said to be the source of powers and jurisdiction which High Court is exercising in certain matters. Mr, Jhon has submitted that these Letters Patent have come to an end.

22. Mr. Jhon has challenged the validity of the Letters Patent. 1865 and asserted that the provisions of the said Letters Patent came to an end after the passing of Govt of India Act, 1919. But I am afraid that this contention of Mr. Jhon cannot be accepted in view of the provisions made in the Act itself. Part IX of the said Act made provisions for the Constitution of the High Court. Section 101 of that Act referred to the High Courts established by the Letters Patent Section 106 of the Act clearly made provisions for the continuance of the powers and authority of the High Courts which were vested in them by Letters Patent. It was further provided that subject to the provisions of any such Letters Patent, all such jurisdictions, powers and authority as were vested in those Courts at the commencement of that Act would continue. Thus it is seen that the said contention of the petitioners is not sustainable and the same fails.

23. It has further been argued that the Letters Patent should be deemed to have come to an end after the passing of the Government of India Act, 1935. Chapter II of Part IX made provisions for the High Court in India. Section 219 referred to the several High Courts including the High Court of Calcutta. Section 223 of that Act made provisions for the jurisdiction of existing High Courts. It runs thus:

'Subject to the provisions of this part of the Act to the provisions of any order in Council made under this or any other Act and to the provisions of any Act of the appropriate legislature enacted by virtue of powers conferred on that legislature by this Act, the jurisdiction of and the law administered in any existing High Court, and the respective powers of the Judges thereof in relation to the administration of the justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of Part III of this Act'.

24. Reference may be made to the above provisions regarding the 'law administered in any existing High Court'. That clearly shows that the law which was administered by the High Court at the relevant time was to continue. In view of the provisions referred to above. Mr. Deb has submitted that the Letters Patent as existed at the appointed date should be considered to be continuing even under the provisions of the Government of India Act, 1935.

25. I also agree with the said contention of the learned Counsel for the respondent No. 4 and I hold that the passing of the Government of India Act, 1935 had no adverse effect on the Letters Patent, 1865 which were so long guiding the procedure, rules and regulations made by the High Courts under the provisions of the said Letters Patent.

26. Mr. Jhon has also submitted that even if the Letters Patent could be said to be continuing after the passing of the Government of India Act, 1935, the same must be deemed to have come to an end after the enactment of Indian Independence Act, 1947 giving birth to two dominions, namely. India and Pakistan.

27. In support of his contention Mr. Jhon has, however, referred to the definition of 'existing Indian Law' as appears in Clause 2 (1) of the India (Adaptation of Existing Indian Laws) Order, 1947 and contended that it excluded any Act of Parliament, or any order in Council. Rule or other instrument made under an Act of Parliament or the General Clauses Act, 1897. But he has omitted to note that in that very definition the laws in force were saved. The Letters Patent, 1865 was the law in force and regulated the powers of the High Court in Calcutta. Thus the said definition is of no avail to the petitioners. In addition reference may be made to Section 18(3) of the Indian Independence Act, which again saved the existing laws. So Mr. Jhon's contention in this respect is not acceptable.

28. Mr. Jhon has next submitted that deletion of the Letters Patent from the provisions of the Government of India Act, 1935 is evident from some of the provisions of India Provisional Constitution (Amendment) Orders. 1948. By Clause 2 (a) of that Order the words 'His Majesty' and 'Letters Patent' as appearing in the proviso (a) to Sub-section (1) of Section 219 of the Government of India Act, 1935 were substituted by the words 'the Governor General' and 'orders' respectively. From the above Mr. Jhon has contended that the 'Letters Patent' were omitted and as such it should be held that the existence of the provisions of the Letters Patent should be taken to have come to an end. It is, however, to be noted that the said amendment was made in respect of the power for the establishment of a High Court to replace any Courts mentioned in Sub-section (1) of Section 219 of the Government of India Act, 1935. Similarly, the power which was given to His Majesty to constitute or re-constitute High Court by Letters Patent under Section 229 of Government of India Act 1935 was delegated to the Governor General and that he was further authorised by 'order' to constitute or re-constitute High Court and that the said Governor General was not to derive his power for such purpose from the Letters Patent Thus the amendment which was made in India Provisional Constitution (Amendment) Order 1948 was made for that specific purpose. The said order, however, did not touch the other provisions of the Letters Patent. As such the said contention also fails.

29. Mr. John has lastly contended that after the promulgation of Constitution of India on 26-1-1950, the Letters Patent ceased to have any force. In support to his contention he has referred to the definition of 'existing Central Law' as appears in Clause 2 (1) (b) (iii) of the Adoptation of Laws Order. 1950. He has further referred to the definition of 'Indian Law' as defined in Sub-section (3) of the General Clauses Act (Act 10 of 1897). According to Mr. Jhon the said definition of 'existing Central Law' excludes an Act of Parliament of United Kingdom or any order in Council. Rule and other Instruments made under such an Act. As the letters patent is an enactment under the provisions of Parliament of United Kingdom it should be considered to have been excluded from the definition of existing central laws and accordingly the Letters Patent which is the outcome of the Act of Parliament of United Kingdom, should not be considered as the 'existing Central Law'.

30. Next Mr. Jhon Dlaced before me the definition of 'Indian Law' as defined in Sub-section (29) of Section 3 of the General Clauses Act (Act X) of 1897. It runs thus:--

'Indian Law shall mean any Act, Ordinance. Regulation. Rule. Order, bylaw or other Instrument, which before the commencement of the Constitution, had the force of law in any province of India or part thereof or thereafter had the force of law in any Part A State or Part C State or part thereof but does not include any Act of Parliament of United Kingdom or any Order in Council, rule or other instrument made under such Act'.

Mr. Jhon has submitted from the above definition that as the Letters Patent was promulgated under the provisions of the Act of Parliament it should never be considered to be a part and parcel of the Indian Law and that it should have no application in any part of India after the promulgation of the Constitution. From the above Mr. Jhon has submitted that the Letters Patent should be deemed to have come to an end.

31. Mr. Deb, learned Counsel for the respondent No. 4. on the other hand, has disputed the said contention and asserted that the Letters Patent cannot be said to have come to an end. According to Mr. Deb, those provisions are still in force. Mr. Deb has drawn the attention of the Court to Chapter V of the Part VI of the Constitution of India. Articles 214 to 231 of the Constitution relate to the establishment and Constitution of the High Court as well as appointment of High Court Judges and some other provisions concerning High Court. The relevant Article for our consideration is 225 of the Constitution. The said Article reads 'subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that legislature by this Constitution, the jurisdiction of and the law administered in any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution', Article 372(1) may also be referred to in this connection. It provides' notwithstanding the repeal by this Constitution of the enactment referred to in Article 395 but subject to the other provisions of this Constitution all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by competent legislature or other competent authority''

Mr. Deb has submitted that the underlined portions of the Articles referred above are relevant for the determination of the point at issue. The Letters Patent, being the law in force and the law administered on the appointed day. should be taken as continuing as law of the land. In answer to the contention of Mr. Jhon regarding the implication of the 'existing Central Laws' -- Mr. Deb. on the other hand, contended that we should not import the words 'existing central laws' in those Articles (Articles 225 and 372 to give some meaning to the same when those words are excluded and the words 'law in force' and 'Law administered' have been used. I also agree with the said contentions of Mr. Deb and hold that the Letters Patent 1865 being the law in force and also being the law administered, the same were not affected by the definition of the 'existing Central Law'. As such the said contention of Mr. Jhon fails.

32. In this connection the attention of the Court has been drawn to the Clause 15 and Clause 21 of the Supplementary provisions in Part III of the Adaptation of Laws Order 1950, The cumulative effect of these clauses is also to save the laws in force and as such Mr. Deb has contended that under no circumstances the Letters Patent can be said to have been repealed or to have come to an end.

33. Mr. Deb next submitted that the contention of Mr. Jhon regarding the definition of 'Indian Law' as appears in Sub-section (29) of Section 3 of the General Clauses Act cannot be supported. Mr. Deb has referred to the above Articles 225 and 372 of the Constitution of India and submitted that in those Articles there is no reference to the 'Indian Law'. Accordingly the definition of 'Indian Law' as given in the General Clauses Act will have no bearing on the point at issue. On giving my anxious consideration to the submission made at the bar by the respective parties. I am of the opinion that there is considerable force in the submission of Mr. Deb. In this connection reference may also be made to Clause (d) of Sub-section (2) of Section 50 of the Advocates Act (Act 25 of 1961) by which the provisions of the Letters Patent of the High Court end any other law in so far as they relate to admission and enrolment of legal practitioners have been repealed. The result is that the clauses 9 and 10 of the Letters Patent 1865 by which the powers were given to the High Court in admitting Advocates. Vakils and Attorney and in making Rules for their qualifications have been repealed and provisions have been made, in that respect, in the Advocates Act itself. It is therefore, seen that even in the year 1961. after the Constitution of India came into force, the Letters Patent was in force and that some of its provisions regarding the admission of the Advocates. Vakils and Attorneys were only altered and new provisions have been made by the Indian Parliament. This, therefore, in my view lends further assurance to the contention of Mr. Deb that provisions of the Letters Patent which have not Yet been repealed, or altered by the Constitution of India or by any other legislation passed, are still continuing and regulate the working of the Calcutta High Court in the State of West Bengal. For the reasons stated above, I hold that the provisions of the Letters Patent which have not yet been repealed or altered are still continuing in force.

34. According to Mr. Jhon the provisions in Chapter V. Part VI of the Constitution of India are self-sufficient and all the powers have been given thereunder to High Court to run its administration and as such the letters patent are deemed to have been repealed by implication. The said contention has got little force inasmuch as the High Court's Civil Jurisdiction has been incorporated in Clause 11 of the Letters Patent which cannot be found in the Constitution itself, Similarly, under Clause 12 the High Court of Calcutta have been exercising the original jurisdiction as to suits as mentioned in that clause. In Clause 13 the High Court's extraordinary civil jurisdiction has been provided. Clause 15 provides for the appeals which are not otherwise provided for. In this connection reference may be made to Section 96 of the Civil P. C. Therein provision has been made for appeal from original decree passed by the Court but no such provisions have been made with regard to the judgment and decree passed in the Original Side of the High Court presided over by a Judge of that Court. But such appeals may be preferred against such judgment and decree in this High Court under the provisions of Clause 15 of the Letters Patent. That also shows that the Letters Patent exists and are continuing in force. It is needless for me to refer to other provisions of the Letters Patent upto Clause 45. Each one of these clauses have got its special importance and that but for these clauses the High Court in its Original. Appellate and Criminal Jurisdiction could not have worked in accordance with the law end these powers have been retained by the High Court only under the Letters Patent which are still continuing. The cumulative effect of the above provisions is that the Letters Patent cannot be said to have been abolished either by implication or by any specific provisions of law. In the result, that contention of Mr. Jhon also fails.

35. For the reasons stated aboveI find that the Letters Patent of 1865 isnot ultra vires the Government of IndiaAct 1935 or of the Indian IndependenceAct 1947 and as such these Letters Patentare still in force within the meaning of Article 372 read with Article 225 of theConstitution of India.

36. Mr. Jhon next contends that India is a sovereign democratic republic and any law which may be said to challenge the said sovereignty should be declared to be ultra vires the Constitution and as such the same should be struck down. The attention of the Court is drawn to the language of Letters Patent which started with the name of Victoria of the United Kingdom of Great Britain and Ireland. Queen. Defender of faith, and it is submitted that the Letters Patent was the law prescribed for colony and it enacted a colonial law couched and worded with the superior attitude, defying the sovereignty of India, as such it should be struck down as it infringes the sovereignty of India as contained in the preamble of the Constitution. Hence Mr. Jhon has submitted that it is unfortunate that even after so many years of Independence of India, we are being governed by the Law which indicates the foreign domination. Apparently the position appears to be unfortunate but on that score merely alone the Letters Patent cannot be struck down, inasmuch as the said Letters Patent as indicated above, has been adopted and protected under the provisions of the Constitution itself- As such the Letters Patent is now existing under the authority of the Constitution. Hence the above submission of Mr. Jhon cannot be accepted.

37. I shall now deal with the contention of Mr. Jhon by which the constitutionality of the provision of the Calcutta High Court (Jurisdictional Limits) Act 1919 has been challenged. The said Act has been challenged on twofold grounds:

(a) that the said Act having been based under the authority of Clause 11 of the Letters Patent 1865 is bad and illegal in view of the fact that the Letters Patent had no force at the time when that Act was enacted.

(b) that the areas butted and bounded in the said Act is unreasonable end arbitrary. Accordingly it offends Article 14 of the Constitution. As such it should be declared to be ultra vires and should be struck down.

38. The contention of Mr. Jhon with regard to the first point raised above that the Letters Patent having come to an end. the Calcutta High Court (Jurisdictional Limits) Act 1919 cannot be said to be valid law as it was enacted under the authority, derived under the said Letters Patent is not acceptable. In View of my finding that the Letters Patent are still in existence, the contention of Mr. Jhon in this behalf is not sustainable.

39. The second contention of Mr. Jhon with regard to the Calcutta High Court (Jurisdictional Limits) Act 1919 may now be taken up for consideration. It requires a detailed discussion as it involves some complicated question of law. His main contention is that in Calcutta in spite of great extention of the town in recent years, the original civil jurisdiction is at the present day, absurdly confined to illogically restricted limits which do not even cover the whole city. Accordingly it should be considered to he unreasonable and arbitrary enactment making a discrimination between a person and person, denying the citizen equality before the law or the equal protection of the laws within the territory of the State of West Bengal.

40. Mr. Deb, on the contrary, has submitted that in the matter of fixation of territorial jurisdiction the legislature must have unfettered power of selection, otherwise it may lead to an absurd situation. Mr. Deb has drawn the attention of the Court to certain statements of the petitioners, in the petition filed, wherein it is said:--

'Had there been a single jurisdiction and system of doing justice at least within a conceivable and reasonable set of conditions including area, forum facilities, representation by Advocate etc. your petitioner No. 2 states that your petitioner's legal rights and obligations were to receive a much better treatement and the present injury to your petitioner's right to property including the right to get justice haying been caused by the factors aforesaid which are discriminatory or at least been rendered as such by historical change of events and circumstances would not have occurred'.

From the above it is contended by Mr. Deb that according to the petitioner the working in the original jurisdiction of the High Court at Calcutta is based on sound principles and that the litigants are to get better justice. Accordingly there is no sense in saving that the system which is better should be struck down to bring in a system which is inferior (if at all).

41. Mr. Deb next contends that it cannot always be said that Article 14 of the Constitution forbids classification absolutely. According to Mr. Deb it permits classification by legislature, provided the following tests are answered:--

(1) That the classification is founded on an intelligible differentia and

(2) that the differentia has a rational relation to the object to be achieved by statute in question. According to him classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group. The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the enactment. Learned Advocate General also has contended that application of unequal laws or procedure in different parts of the country is reasonably justified on historical reasons and georeaphical or territorial classification founded on those historical reasons should also be upheld. Mr. Deb has pointed out the history of events which led to the creation of Presidency Town of Calcutta, which has its own peculiarities with regard to its economic and factual background. Accordingly the exercise of the original jurisdiction by the High Court at Calcutta within the specified limits as is seen in the Calcutta High Court (Jurisdictional Limits) Act 1919 is permissible under the law and it does not offend Article 14 of the Constitution. In support of his contention he has referred to the decision in case of the State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., : [1964]52ITR443(SC) . In support of his said contention Mr. Deb also has placed before this Court the decision of Lachmandas v. State of Punjab, : [1963]2SCR353 wherein it has been held by the Supreme Court that it does not always forbid reasonable classification and for this purpose even one person or group of persons can be considered as class. though Article 14 prohibits discriminatory legislation directed against one individual or class of individuals.

42. To meet the contention of Mr. Jhon that the petitioners are not setting proper justice outside the jurisdiction of the Presidency Town of Calcutta, it is contended by Mr. Deb that such a contention cannot be upheld for the reasons that it is not always discriminatory merely because it involves hardship or inequality of burden. In support of his contention Mr. Deb has referred to the case of Jalan Trading Co. (P) Ltd. v. Mill Majdoor Sabha. : (1966)IILLJ546SC . Mr. Justice Shah speaking for the Court observed:

'..... if the classification is not patently arbitrary, the Court will not rule it discriminatory merely because it involves hardship or inequality of burden. With a view to secure particular objects a scheme may be selected by the legislature, wisdom whereof may be open to debate; it may even be demonstrated that the scheme is not the best in the circumstances and the choice of the legislature may be shown to be erroneous, but unless enactment fails to satisfy the dual test of intelligible classification and rationality of the relation with the object of the law it will not be subject to judicial interference under Article 14. .....

Equal treatment of unequal objects, transaction or persons is not liable to be struck down as discriminatory unless there is simultaneously absence of a rational relation to the object intended to be achieved by law'.

43. After careful consideration of the submissions advanced at the bar regarding the point at issue I think that the plea of invalidity on the ground that it infringes Article 14 of the Constitution must also fail inasmuch as the petitioners can be said to have been placed amongst the persons similarly circumstanced in the area. People residing outside the jurisdiction as fixed by Calcutta High Court (Jurisdictional Limits) Act 1919 can be said to be a class by themselves and those persons who are living inside the jurisdiction so settled may also be said to be a class to be treated similarly. As such there cannot be any discrimination amongst the persons so placed in those different areas.

44. Mr. Deb also contends that different acts in different parts of the same State can also be sustained on the ground that the differentiation arising from geographical classification is based on historical reasons. Reference has been made to the case of Ramparashad v. State of Punjab, : (1967)ILLJ438SC .

45. In support of the contention of Mr. Deb reference has also been made to the case in : AIR1959All660 . (Mehar Chand v. State) wherein it has been held that classification may be founded on different basis, namely geographical or ac-cording to the objects or occupation or the like. It has also been contended that in addition to the above what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. He further contends that there is a strong presumption that a legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. That presumption should also be raised in favour of that particular legislation which passed the impugned Act. In support of his contention Mr. Deb has referred to the case of Purushottam Gobindjee Halai v. B.M. Desai. : 1956CriLJ129 . Mr. Deb has also submitted that under the law it is for the person who assails a legislation as discriminatory to establish that it is not based on a valid classification. Thus the onus is on the petitioner to show that. In this connection reference has been made to certain portion of the judgment of Basu, J. passed in C. O. No. 6796(W) of 1968 : AIR1971Cal354 wherein Basu. J. held that it is a settled law that the classification made by legislature would be presumed to be reasonable unless the contrary is alleged and established by the petitioner, Basu. J. further held that it is therefore, incumbent upon the petitioner who invokes Article 14 to furnish all facts in his affidavit which will render the classification unresasonable and also to show how he has been affected by the offending law. I most respectfully agree with the said observation of Mr. Justice Basu. No new facts other than these stated in the previous application have been stated for the consideration in this case. That is another infirmity from which this application of the petitioner suffers. In this application the petitioner No. 1 states that he is to subscribe for the two lists -- one published for the cases in the Appellate Side and another published for the cases in the Original Jurisdiction of the High Court and for that he is to spend more money. This cannot be considered as discrimination as all the advocates placed in the similar circumstance are to subscribe for those lists, if, of course, they like, to have the same. On the other hand, from the statements of the petitioner No. 2 it is seen that the working in' the Original Jurisdiction of the High Court Is highly satisfactory and according to him better justice can be had there. For the above reasons it is seen that nothing has been shown by the petitioner by which it can be said that the said classification is discriminatory offending Article 14 of the Constitution of India.

46. The learned Advocate General contends that in the matter of fixation of limit of original jurisdiction of the Calcutta High Court by the Act, Calcutta High Court (Jurisdictional Limits) Act 1919, the legislature must have considered the difference in the economical structure and the tempo of life in Presidency Town of Calcutta and outside. The case of the Md. Zackeria Firm v. Srinivas & Co. : AIR1957Mad403 has been referred in support of the contpn-tion that such a classification, if made on that score, should be said to be a reasonable classification. In this context reference may also be made to the decision in In Re B. N. Ramkrishna Naidu. : AIR1955Mad100 wherein it has been held that the meaning of equality, contemplated in Article 14 does not fetter the discretion of the State to pass appropriate laws to meet different situations and solve different problems that arise in the affairs of the State dedicated to the ideal of promoting the common weal of the nation entrusted to its charge. It has further been observed therein:

'In applying the doctrine of equality, therefore, no narrow dogmatic constitutional niceties should hamper the true exposition of the Constitution as a living practical instrument of Government of men and affairs. Thus, equality before the law and the equal protection of the laws would not be offended by territorial discrimination based upon reasonable classification arising from the particular factual background relating thereto'.

47. The next submission of the learned Advocate General in this context is that special laws may be made for special areas without offending Article 14 of the Constitution. In my opinion this submission is well founded. To appreciate this point at the background of petitioner's grievance as made out in the petition, one has to bear in mind that special or specified areas may have special or peculiar problems calling for solution in a particular manner, ways and means of life requiring, tending thereto in a special manner. If the historical evolution of the judicial system as well as of socio-economic complex of our country is traversed it is seen that the different Presidency Towns are replete with peculiar features of their own necessitating special provisions in law that are distinct from other areas of the States where such Towns are situated. These distinctive provisions in law which have grown out of special and peculiar socio-economic needs of such areas are recognised by law as reasonable classification and as such cannot be impugned on the ground of discrimination violative of Article 14 of the Constitution. This view also gets support from a Bench decision1 of this Hon'ble Court as : AIR1955Cal138 , (Natabar Jana v. The State). Reference to the case in State of Nagaland v. Ratan Singh. : 1967CriLJ265 may also be made in this behalf. It has been observed therein:

'It is not discrimination to administer different laws in different areas. The Presidency Towns have got special procedures which do not obtain in other areas. We have known of trials by jury in one part of India for an offence which was not so triable in another. Similarly what is offence in one part of India is not an offence in another. Regional differences do not necessarily connote discrimination and laws may be designed for effective justice in different ways in different parts of India if people are not similarly circumstanced'.

To sustain the contention that in the same State different laws may be applicable on historical reasons and geographical classification is permissible I may refer to the case of Bhaiya Lal Shukla v. State of Madhya Pradesh : AIR1962SC981 . The historical background how and why, the High Court at Calcutta was established has already been stated hereinbefore. The Presidency Town of Calcutta has its own peculiarities and problems widely differing from the other parts of the country.

48. For the aforesaid reasons I hold that Calcutta High Court (Jurisdictional Limits) Act 1919 is not violative of Article 14 of the Constitution and as such It is not ultra vires the Constitution. Consequently the prayer for striking down the said Act must fail.

49. The last contention of Mr. John Is that the Clause (iii) of Sub-section (2) and Sub-section (3) of Section 34 of the Advocates Act (Act 25 of 1961) is ultra vires as it offends Article 14 of the Constitution. Mr. Dutt appearing for the Secretary, Bar Association, has also supported the said contention.

50. According to Mr. Dutt the Advocates have been given the right to practise law as noted in Section 29 of the Advocates Act. Right to practice of an Advocate should mean both the right to act and to 'plead in course of his engagement. In support of his contention reference has been made to the case in Aswani Kr Ghosh v. Arobinda Bose. : [1953]4SCR1 wherein Supreme Court held that the word 'practice' as applied to the legal practitioner in India includes in the absence of any limiting or restrictive context both the functions of acting and pleading. Mr. Dutt therefore, submits (that the very fact that the High Court at Calcutta was given the power to make rules to determine the persons who shall be entitled respectively to plead and to act in the High Court in exercise of its original jurisdiction, can be said to be discriminatory. According to Mr. Dutt, if any rule seeking to impose any restriction in this respect, is framed by the High Court, the same will lead to a discrimination. The submission in this respect by Mr. Dutt. in my view, is not sound, it is based more on imaginary grievance than on facts. No Court should enter into discussion on the basis of a hypothetical case, and particularly in constitutional matters. The said view gets support in the decision of the case U.N. Rao v. Smt. Indira Gandhi. : AIR1971SC1002 wherein it has been observed: 'in constitutional matter it is advisable to decide only those points which necessarily arise for determination on the facts of the case'. Bearing the aforesaid principle in mind, let us now examine the relevant provisions as Contained in subsection (2) of Section 34 of the Act, and its Clause (iii) which are set out herein-below: Sub-section (2): 'without prejudice to the provisions contained in Sub-section (1), the High Court at Calcutta and the High Court at Bombay may make rules. Clause (iii): 'determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction'. It is, therefore, seen that Clause (iii) to Sub-section (2) of Section 34 of the Act is a merely enabling section giving authority to the High Court to make rules for some specified purpose. The said provision by itself cannot be assailed on the ground of discrimination. The rules framed thereunder by this Court have, however, been kept out of scrutiny in the present rule. It may also be mentioned that the petitioners sought to attack the rules framed by the High Court but they did not give the detailed reasons for the same. Those rules were the subject-matter of attack in a proceeding before D. Basu, J. Against the decision of Mr. Justice Basu an appeal has been preferred and the same is still pending. Accordingly Mr. John and Mr. Dutt did not press that point in this proceeding as the selfsame point is the subject-matter of another proceeding, pending in appeal.

51. Mr. Dutt, however, submits that though the rules are not being challenged in this proceeding the section itself has been challenged and on the ground of discrimination Section 34(2)(iii) and (3) should be struck down. Mr. Dutt in support of his own contention has referred to the case of State of West Bengal v. Anwar Ali Sarkar, : 1952CriLJ510 and contends that legislature committed illegality by delegating power to the High Court to frame rules concerning the Advocates regarding their right to plead and to act before the High Court exercising original jurisdiction. This according to Mr. Dutt is based on certain classification by which equal right before the law can be said to have been denied. Moreover, unlimited and unfettered right given to some authorities to discriminate one person from another without any reference to any particular class is bad in law, and accordingly, it cannot be sustained. In the instant case Mr. Dutt could not say anything by which it can be said that Clause (iii) of Sub-section (2) of Section 34 can be said to be discriminatory. It speaks of the Advocates who will plead and act in the High Court. There is nothing to show that any such rules have been framed which can be said to have made distinction between lawyers and lawyers. As already noted we are not looking to the rules. The language of the impugned section is clear to show that it does not make any discrimination between lawyers and lawyers. Mr. Dutt further contends that unfettered powers have been delegated to the High Court to frame rules. Accordingly the said provisions cannot be supported under the law. In support of his contention Mr. Dutt also submitted that in the case referred to above, the provisions of the West Bengal Special Courts Act, 1950 was struck down for the reasons that special powers were delegated to the Officer of the State to decide which offences are triable by the Special Court and against whom. In the instant case, however, the said principle cannot be applied. The cases referred to by Mr. Dutt are distinguishable and the facts involved are different. Mr. Deb referred to the case of Babul Ch. Mitra v. The Chief Justice and other Judges of Patna High Court, : AIR1954SC524 wherein the provision of Section 9 of the Indian Bar Councils Act was considered. The Supreme Court observed: 'the proviso to section mentioned above, however, makes it clear that there is an overriding power in the High Court to refuse admission to any person at its discretion in spite of these rules. The vesting of power even in an unfettered form in the High Court to exercise discretion in the matter of enrolling advocates, who would be entitled to practise before it, does not in our opinion amount to an unreasonable restriction. Such discretion will have to be vested in somebody and no other or more appropriate authority could be thought of, except the High Court itself'. In the background of that decision I also find that rule-making power which has been given to the High Court can be said to have been given to the best possible authorities in whom the people and the legislature have absolute confidence.

52. Giving my anxious consideration in the materials on record I am sorry I cannot agree with the contention of Mr. John and with Mr. Dutt that Cl. (lii) of Sub-section (2) of Section 34 of the Advocates Act is ultra vires and that it in any way offends Article 14 of the Constitution,

53. Regarding Sub-section (3) of Section 34, Advocates Act Mr. John's contention is as Letters Patent is not in existence, the rules framed thereunder should be declared to be illegal. But it may be noted that the said contention of Mr. John does not hold good in view of my finding that the Letters Patent are still in force. As such said contention of Mr. John also fails.

54. The petitioners have asserted that the Barristers were created as a privileged class of persons making a discrimination between lawyers and lawyers. The said argument is no longer tenable after the passing of the Advocates Act 1961. Section 34 of the Act lays down the qualification required for admission as an Advocate. Bar-at-Law is such a qualification recognised by the Advocates Act. High Court has framed a common set of rules for barristers and advocates. Thus by the passing of the Advocates Act, unification of the Bar has been achieved. Mr. John also has not pressed this point It may also be noted in this context that the petitioners have not made the attorneys party in this proceeding. Mr. John, therefore has given up the point that the admission of the attorneys is discriminatory, all the time of hearing. Accordingly the impugned section of the Advocates Act cannot be challenged on that score. It may, also be noted that though respondent No. 8. Registrar, Original Side, asserted in 'his affidavit that such an application was not maintainable in the Appellate Side, no argument, however, was advanced on that score at the time of hearing and the same has been given up. As such I do not think it necessary to consider the same.

55. I hold, therefore, that the impugned sections, namely. Clause (iii) of Subsection (2) and Sub-section (3) of Section 34 of the Advocates Act are not ultra vires the Constitution and that they do not offend Article 14 of the Constitution and as such, they cannot be struck down.

56. In the result, the application fails and the Rule is discharged. In view of the nature of the application no order: as to costs is made.


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