Skip to content


Sunil Kumar Sinha Ray Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 282 of 1962
Judge
Reported inAIR1963Cal614
ActsAdvocates Act, 1961 - Sections 50(2) and 58(4); ;Advocates (Amendment) Act, 1962 - Section 4; ;Legal Practitioners Act, 1879 - Sections 6, 7, 8, 9, 16, 17, 19 and 41; ;Constitution of India - Article 19, 19(1) and 19(6)
AppellantSunil Kumar Sinha Ray
RespondentState of West Bengal and ors.
Appellant AdvocateAnil Kumar Sinha and ;Benoy Krishna Ghose, Advs.
Respondent AdvocateNani Coomar Chakravarti and ;Basudev Banerjee, Advs.
DispositionAppeal dismissed
Cases ReferredBabul Chandra v. Chief Justice and Judges of Patna High Court).
Excerpt:
- mitter, j.1. this is an appeal from an order refusing the issue of a rule on the application of two persons who professed to be candidates for the mukhtear-ship examination proposed to be held in february or march, 1962, but which as a matter of fact was never held. the case of the petitioners was in substance that they had all the requisite qualifications to sit for the said examination under the rules and regulations prescribed by this court under section 6 of the legal practitioners act, 1879, that the committee of legal education constituted by the state of west bengal under section 21 of the legal practitioners act for the purpose of conducting the mukhtearship examination in the said state had issued a notice on august 1, 1961 calling upon intending candidates for the mukhtearship.....
Judgment:

Mitter, J.

1. This is an appeal from an order refusing the issue of a Rule on the application of two persons who professed to be candidates for the Mukhtear-ship examination proposed to be held in February or March, 1962, but which as a matter of fact was never held. The case of the petitioners was in substance that they had all the requisite qualifications to sit for the said examination under the rules and regulations prescribed by this Court under Section 6 of the Legal Practitioners Act, 1879, that the Committee of Legal Education constituted by the State of West Bengal under Section 21 of the Legal Practitioners Act for the purpose of conducting the Mukhtearship examination in the said State had issued a notice on August 1, 1961 calling upon intending candidates for the Mukhtearship examination to be held in February or March, 1962 to file their applications on or before November 15, 1961 in the Courts of the District Judges within whose jurisdiction the candidates resided or were employed together with Matriculation and other certificates and receipts showing payment of prescribed fee of Rs. 20/- to the Government Treasury, that the petitioners had duly submitted their applications together with the documents prescribed to the District Judge of 24-Parganas before November 15, 1961, that the Deputy Secretary to the Government of West Bengal, Law (Judicial) Department had informed one of the petitioners and some other candidates by letter D/- December 22, 1961 that the Mukhtearship examination would not be held and that fees already deposited by the intending candidates would be returned on written application. According to the petitioners, the respondents to the petition, namely, the State of West Bengal, the Committee of Legal Education and the District Judge, 24-Parganas failed to carry out their statutory duties calling for the issue of a Writ directing them to cancel or rescind several orders by which the petitioners were sought to be deprived of their right to appear at the Mukhtearship examination and qualify themselves as Mukhtears.

2. Before the enactment of the Advocates Act of 1961 Advocates, Vakils or Attorneys of any High Court, as well as pleaders, mukhtears or revenue agents were governed by the Legal Practitioners Act of 1879. Under Section 6 of the latter Act, the High Court of a State was empowered to make rules consistent with the Act inter alia, as to the qualifications, admission and certificates of proper persons to be mukhtears of the Subordinate Courts, the fees to be paid for the examination and admission of such persons and their suspension and dismissal. Section 7 of the Act laid down that

'On the admission, under Section 6, of any person as a pleader or mukhtear, the High Court shall cause a certificate, signed by such officer as the Court, from time to time, appoints in this behalf, to be issued to such persons, authorising him to practise up to the end of the current year in the Courts, and, in the case of a pleader, also the revenue office, specified therein'.

'At the expiration of such period, the holder of the certificate, if he desires to continue to practise, shall, subject to any rules consistent with this Act, which may, from time to time, be made by the High Court in this behalf, be entitled to have his certificate renewed by the Judge of the District Court within the local limits of whose jurisdiction he then ordinarily practises, or by such officer as the High Court from time to time, appoints in this behalf'.

'On every such renewal, the certificate then in possession of such pleader or mukhtear shall be cancelled and retained by such Judge or officer'.

'Every certificate so renewed shall be signed by such Judge or officer, and shall continue in force up to the end of the current year'.

3. Section 9 empowers every mukhtear holding a certificate issued under Section 7 to apply to be enrolled in any Civil or Criminal Court mentioned therein and the presiding Judge is to enrol him accordingly and thereupon he may practise as a mukhtear in any such Court. Under Section 10 no person can practise as a pleader or mukhtear in any Court not established by Royal Charter unless he holds a certificate issued under Section 7 and had been enrolled in such Court or in some Court to which it is subordinate. Under Section 16 any High Court established by Royal Charter can frame rules in regard to mukhtears about their qualifications and admission for practising on the Appellate side of such Court and other matters. Section 17 vests the Chief Controlling Revenue Authority with powers similar 1o those contained in Section 6 regarding qualifications etc., of Revenue Agents. Under Section 37 of the Act the State Government is to appoint per-'sons to be examiners for ascertainment of the qualifications mentioned in Sections 6 and 17 of the Act and can make regulation for conducting such examination.

4. Chapter 38 of the Civil Rules and Orders of this Court contain rules with regard to pleaders and mukhtears. Rule 816 prescribes for the conducting of examination of candidates for admission as mukhtears in Courts subordinate to the High Court vested in the Committee of Legal Education as constituted by the Government of West Bengal Notification No. 9561. dated 20-2-1950. Under Rule 817 any person may be admitted as a mukhtear in Courts subordinate to the High Court who shall be qualified to be admitted as a pleader under certain conditions or who shall within one year produce a certificate from the Committee that he had passed an examination in the subjects prescribed from time to time by the High Court for the mukhtearship examination. The subjects prescribed are set fourth in Rule 819. Rule 820 lays down that in order to qualify himself for the examination required by the rules for mukhtear a person must hold a certificate of having passed the School Final Examination etc. as also a certificate of good moral character and be above the age of 20 years. Under Rule 821 every candidate for examination for mukhtearship must before November 15 in each year apply to the Committee of Legal Education for leave to present himself at the ensuing examination and establish before admission to such examination that he possesses the qualification prescribed and has complied with the provisions of Rule 822. Rule 827 makes provision for payment of fees payable by the candidates for the Mukhtearship examination. Rule 836 prescribes for a fee payable on application for enrolment as mukhtear.

5. On 19-5-1961, the Advocates Act (25 of 1961) was put on the Statute Book. The preamble to the Act shows that it was designed to amend and consolidate the law relating to legal practitioners and to provide for the constitution of Bar Councils and an All India Bar. Under Section 1(3) the Act was to come into force on such day as the Central Government might by notification in the official gazette appoint, and different dates might be appointed for different provisions of the Act. Section 2 Clause (i) of the Act defines a legal practitioner as an advocate, vakil or attorney of any High Court, a pleader, mukhtear or revenue agent. Under Section 3 there is to be a Bar council for each State and for the territories mentioned therein. The admission and enrolment of Advocates is provided for in Chapter III of the Act containing Sections 16 to 28. The right to practise is governed by Chapter IV containing Sections 29 to 34. The conduct of Advocates is governed by Sections 35 to 45 contained in Chapter V. Chapter VI deals with miscellaneous matters in Sections 45 to 52. Section 50 (2) provides that :

'On the date on which Chapter III comes into force the following shall stand repealed, namely,

(a) 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 relate to the admission and enrolment of legal practitioners;

(b) Sections 3, 4 and 6 of the Bombay Pleaders' Act of 1920;

(c) So much of Section 8 of the Indian Bar Councils Act of 1926 as relates to the admission and enrolment of legal practitioners ;

(d) the provisions of the Letters Patent of any High Court and of any other law in so far as relate to the admission and enrolment of legal practitioners.'

6. On 24-11-1961, the Central Government issued a notification under Section 50(2) of the Advocates Act notifying that under powers conferred by sub-section (3) of Section 1 of the Advocates Act the Central Government appointed the 1st day of December 1961 as the date on which the provision of chapter III and Sub-section (2) of Section 50 of the said Act would come into force. The result was that the different sections of the Legal Practitioners Act mentioned in Sub-clause (a) of Section 50(2) of the Advocates Act stood repealed in so far as they related to the admission, and enrolment of legal practitioners. The necessary consequence was that it was not open to anybody to claim to be admitted or to be enrolled as a mukhtear under any provision-of the Legal Practitioners Act thereafter. It should be noted that the repeal is not given any retrospective effect and relating only to admission and entrainment does not affect the status of anybody already admitted or enrolled and does not in any way seek to curtail their right to practise as they were doing before.

7. It was argued on behalf of the petitioners that as they had prepared themselves for the Mukhtearship examination and as they had already paid the fees prescribed for the appearance at such examination, they had acquired a vested right to appear at the examination and qualify as mukhtears and in the absence of express provision of law taking away this vested right the repeal effected by Section 50 did not affect their position.

8. Reliance was placed on Section 6 of the General Clauses Act (10 of 1897) the relevant portion of which provides that 'where any Central Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not * * * *

(c) affect any right, privileges, obligation or liability acquired, accrued or incurred under any enactment so repealed;'

It was contended that after the publication of the notice dated August 1, 1961 and payment of the fees prescribed for the examination by the petitioners, they had acquired a right to appear at the examination and qualify for being enrolled as mukhtears. This argument to my mind is fallacious. So long as the sections of the Legal Practitioners Act relating to the admission and enrolment of mukhtears were in force, anybody could take the necessary steps to qualify himself as a mukhtear and to practise as such in courts of law but the statute, i. e., the Legal Practitioners Act did not vest anybody who had not already acquired the necessary qualifications with any right. In my opinion, a person can only claim to have a vested right under a statute when he has complied with all the formalities prescribed thereby for acquiring a status and before then the right is only an inchoate one. The principle is well illustrated by the case of Reynolds v. Attorney-General for Nova Scotia, 1896 AC 240. There the appellants had obtained a licence to work a certain coal mining area within the province of Nova Scotia. Under Section 95 of Chapter 7 of the Revised Statutes, 5th series any right to work was to be for a term of two years from the date of application and could be extended to three years upon additional payment by the holder of the licence of one-half of the amount originally paid for such licence. The extension had to be asked for within the period of the licence. By an amending Act of 1889 Section 95 of the above mentioned Act stood repealed with the result that when the appellants applied for the renewal for one year of their licence the power of the Commissioner to grant such renewal was gone. A lease had before the date of application for renewal been granted to others. The appellants, contended that 'the Act of 1889 ought not to be construed so as to have the effect of taking away their right under Section 95 of Chapter 7'.

Delivering judgment of the Judicial Committee, Lord Morris observed 'No doubt the maxim, omnis nova constitutio futuris forman imponere debet non praeteritis has been applied to the extent that a new law ought to be construed so as to interfere as little as possible with vested rights, and in Main v. Stark, (1890) 15 AC 384 at p. 388- the Earl of Selborne says, 'words not requiring a retrospective operation, so as to affect an existing, status prejudicially, ought not to be so construed', yet the result is that in all cases it is necessary to ascertain what the legislature meant. In the present case the only existing licence the appellants had when the amending statute was passed was one for two years expiring in August, 1889. They had a privilege to get an extension for one year under Section 95, but had no accrued right, and the object of the legislation of 1889 was to get rid of licences and substitute leases. It was open to the appellants after the passing of the Act of 1889 and before the expiration of the two years to have applied for a lease; but, instead of doing so, they applied for a renewed licence under the provisions of a repealed statute'.

9. Reynolds, the appellant there, was in a stronger position than the appellants before us. There the appellant had already secured a licence-under Section 95 of the Act and could have applied for renewal thereunder before the section stood repealed. Yet it was held that as they had not applied before the passing of the Act of 1889 and before the expiration of two years from the date of the grant of the licence they could not seek the aid of the repealed statute. Here the appellants have acquired no right or privilege. If they had appeared at the examination and qualified themselves as mukhtears, their contention would have been better founded. Moreover it is clear from the preamble to the Advocates Act and Section 50(2) thereof 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 mukhtears.

10. The cases of Colonial Sugar Refining Co-Ltd. v. Irving, 1905 AC 369 and Delhi Cloth and General Mills Co., Ltd. v. Income Tax Commissioner Delhi are not in point. In the first case the right of appeal from the Supreme Court of Queensland to His Majesty in Council given by the Order in Council of 30-6-1860 had been taken away by the Australian Commonwealth Judiciary Act, 1903 but it was held that the Judiciary Act was not retrospective by express enactment or any necessary intendment. Delivering judgment of the Judicial Committee,. Lord Macnaghten said :

'The only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of' an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference-with existing rights contrary to the well known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.'

In Delhi Cloth Mills' case , the question was one of the right of appeal to His Majesty in Council in an Income-tax matter.

There was no express provision for such appeals either under a reference under section 51 of the Indian Income-tax Act, 1918 or under section .56 of the Act of 1922, but until the decision in Radhakrishna Ayyar v. Sundaraswami Ayyar, 49 Ind App 211 : (AIR 1922 PC 257) it was generally supposed that appeals from such orders were regulated by Sections 109 and no of the Code of Civil Procedure. In April 1926 the Indian Income-tax Act was amended by the introduction of the new Section 66A which provided for appeals to His Majesty in Council on a reference under Section 66 in any case which the High Court certified to be a fit one for such appeal. Following the decision in Colonial Sugar Refining Co., Ltd.'s case, 1905 AC 369 Lord Blanesburgh observed,

'Their Lordships can have no doubt that provisions which, if applied retrospectively, would deprive of their existing finality orders, which, when the statute came into force, were final, are provisions which touch existing rights. Accordingly, if the section now in question is to apply to orders final at the date 'when it came into force, it must be clearly so provided. Their Lordships cannot find in the section even an indication to that effect'.

11. It was next argued that even if the repeal, of the sections of the Legal Practitioners Act had deprived the appellants of their claim to appear at the Mukhtearship examination and enrolment as mokhtears, their right was restored by the Advocates Amendment Act of 1962. By Section 4 of the amending Act a new section numbered Section 58 was engrafted on the parent Act. Sub-section (4) of the new Section 58 provides as follows :

'Notwithstanding the repeal by Sub-section (2) of Section 50 of the provisions of the Legal Practitioners Act, 1879 or of the Bombay Pleaders Act, 1920, relating to the admission and enrolment of legal practitioners, the provisions of these Acts and any rules made thereunder in so far as they relate to the issue and renewal of the certificate of a legal practitioner shall have effect until Chapter IV comes into force and, accordingly, every certificate issued or renewed to a legal practitioner (who is not enrolled as an Advocate under this Act) which is or purports to be issued or renewed under the provisions of either of the aforesaid Acts during the period beginning with the 1st day of December 1961 and ending with the date on which Chapter IV comes into force, shall be deemed to have been validly issued or renewed'.

12. It was argued on the strength of the above sub-section that as the provisions of the Legal Practitioners Act and the rules made thereunder relating to the issue and renewal of the certificate were to have effect until Chapter IV came into force a person who intended to appear at Mukhtearship examination did not lose his right notwithstanding the repeal and could insist on the holding of the examination so that a certificate could be issued to him. In my opinion the sub-section has no such operation. It is only intended to protect the rights of persons already practising as legal practitioners until Chapter IV came into force. The issue of a certificate to a Mukhtear under the Legal Practitioners Act is covered by Section 7 of the Act under which a person was to be entitled to a certificate as a mukhtear on his admission under Section 6. To be admitted under Section 6 a person had to acquire the qualifications therein mentioned and comply with the rules made by the High Court in that behalf. Sup-section (4) of Section 58 is designed to safeguard the rights of persons who had already acquired the necessary qualifications mentioned in Section 6. In order to clarify the position with regard to legal practitioners who had acquired rights under the Legal Practitioners Act the Legislature engrafted Sub-section (4) of Section 58 in the Act so that they would be unaffected by the repeal. It may also be that there were persons who had become qualified as pleaders or mukhtears but to whom no certificates had been issued and Sub-section (4) was designed to protect their rights as well. It cannot apply to persons who had not acquired the necessary qualifications under Section 6.

13. The last point urged was that by the repeal contained in Section 50 of the Act a number of persons were going to be prevented from practising the lawful profession of mukhtears and as such Section 50(2) of the Advocates Act was violative of Article 19(1)(g) of the Constitution, inasmuch as it sought to prevent persons from practising a profession. This argument too must fail inasmuch as Section 50(2) is not designed to prevent persons from practising as lawyers altogether but is only aimed at preventing the practice as lawyers by certain persons with qualifications which the legislature thought was inadequate. Moreover the central idea of the Advocates Act being the constitution of an All India Bar, it would be incongruous if different categories of lawyers were allowed to function for all time to come. The case in my opinion would be covered by Article 19(6) of the Constitution as the repeal of the several sections of the Legal Practitioners Act only imposes reasonable restrictions as to the practice of the profession of lawyers. The points urged by the appellants are without any substance and the appeal must fail.

14. This appeal is dismissed. There will be no order as to costs.

Bose, C.J.

15. The main point involved in this appeal is whether Section 50(2) of the Advocates Act, 1961 (Act 25 of 1961) which by virtue of its provision in Clause (a) repeals from the date when Chapter III of the Act comes into force, 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 the Act as relate to the admission and enrolment of legal practitioners and which by its provisions in Clause (d) repeals the provisions of the Letters Patent and of any other law in so far as they relate to the admission and enrolment of legal practitioners, justified the Committee of Legal Education, High Court, Calcutta, a body entrusted with the conduct of the Mukhtearship Examination, in cancelling or not holding the Mukhtearship Examination after, inviting applications from candidates to sit for the examination and after accepting fees for such examination and after fixing the date of examination, on the ground that Chapter III of the Advocates Act, 1961 having been brought into force on 1st December, 1961 no further examination for admission of Mukhtears could be held.

16. Now Section 6 Clauses (b), (c) and (d) of the Legal Practitioners Act empowered the High Court to make rules consistent with the Act, as to, inter alia, (b) the qualifications, admission and certificates of proper persons to be Mukhtears of the Subordinate Courts and in the case of High Court not established by Royal Charter in respect of which the Indian Bar Council Act, 1926 is not in force, of such courts, (c) the fees to be paid for the examination and admission of such persons and (d) the suspension and dismissal of Mukhtears; and it was further provided in Section 6 that all such rules upon being published in the official gazette would have the force of law.

17. Section 7 provided inter alia that on the admission under Section 6 of any person as Mukhtear the High Court would cause a certificate to be issued to such person authorising him to practise up to the end of the current year in the courts and there is in the section also the provision of renewal of such certificates.

18. Section g of the Act contains provision for enrolment of a Mukhtear in a Civil or Criminal Court.

19. Section 10 provides that except as provided by the Act or any other enactment for the time being in force no person shall practise as a Mukhtear in any Court unless he holds a certificate issued, under Section 7 and has been enrolled in such court.

20. Section 37 authorises the State Government to make regulations for conducting the examination and to appoint persons as examiners for the purpose of facilitating the ascertainment of the qualifications mentioned in Sections 6 and 17 of the Act.

21. It will thus be clear that Section 6 deals with the qualification, examination fees and admission of Mukhtears; Section 7 with the issue of certificates upon admission under Section 6, and Section 37 with framing of regulations about examinations and appointment of examiners.

22. Reference to the Civil Rules and Orderspublished under the authority of the High Courtand contained in Volume I. Part VIII Chapter 38,shows that elaborate provisions have been madetherein relating to the qualifications, admissionand enrolment of the legal practitioners. Rules 816to 820 find place under the heading 'Qualificationsof Mukhtears'. Rule 816 provides that the conductof the examination of candidates for admission asMukhtears in the courts subordinate to the HighCourt at Calcutta is vested in the Committee ofLegal Education as constituted by the West BengalGovernment Notification dated 20-2-1950. Rule817 provides inter alia that any person may be admitted as a Mukhtear in the Courts subordinate tothe High Court who shall within one year producea certificate from the Committee that he has passedan examination in the subjects prescribed from timeto time by the High Court for the MukhtearshipExamination. Rule 819 prescribes the subjects forexamination. Rule 820 prescribes the qualifications for eligibility as a candidate for examination.The next group of Rules being Rules 821-826 findsplace under the heading 'Examination' and prescribe the procedure for candidates making applications to the Committee for leave to present themselves at the ensuing examination. Rule 827 prescribes the fees for examination. Rule 828-831 relate to admission to practice of legal practitioners, and provide that an application for admission to practice has to be presented accompanied inter alia by a certificate that the applicant has passed the Mukhtearsbip Examination. The next group of Rules being Rules 832-846 appear under the heading 'Certificates and Renewal'. Rule 832 provides that upon receipt of the application for being admitted to practice the Registrar shall cause the notice referred to in Rule 830, and containing particulars of the applicant to be affixed in a conspicuous place in the Court building for at least six weeks, and after the expiry of that period, and if there is no objection, shall grant to the applicant a certificate as required by Section 7 of the Legal Practitioners Act authorising the applicant to practise up to the end of the year in which it is granted. Rules 834 and 835 provide for applications for renewal of certificates. Rule 836 prescribes the fee payable for enrolment as Mukhtears as Rs. 10/-, and for refund of the fees paid if the applicant is Dot enrolled for any reason. The rest of the Rules up to Rule 846 lay down conditions of practice and disabilities attached thereto and certain miscellaneous matters.

23. It is therefore evident that the extent ofrepeal which is effected by Section 50(2) Clauses (a) and(d) of the Advocates Act, 1961, is, that certain provisions of the Legal Practitioners Act and of anyother law which relate to admission and enrolmentof legal practitioners, are put an end to, and therecan be hardly any room for doubt that the rightto appear in the examination and the obligation tohold the Mukhtearship Examination are also extinguished as a result of this repeal. But the right topractise in any Court as a Mukhtear as conferred bycertain provisions in the Legal Practitioners Act orby any other law, is not affected by this Sub-section (2) of Section 50. Such right is kept alive tillChapter IV of the Advocates Act is brought intoforce; but upon this Chapter IV coming into forcethis right is also extinguished by virtue of subsection (3) of Section 50.

24. It may further be noted in this connection that by reason of Section 55(c) of the Advocates Act the rights of practice of Mukhtears practising immediately before the date when Chapter IV comes into force are not affected in any way by the repeal by the Advocates Act, of the provisions of the Legal Practitioners Act or other law relating to the Mukhtears.

25. Therefore the effect of Sub-section (2) of Section 50 of the Act is that no new Mukhtear will be enrolled after the coming into force of this provision.

26. Now as certain unforeseen difficulties were experienced in the matter of enrolment and admission of legal practitioners during the transitional period two new sections being Sections 58 and 59 were incorporated in the Advocates Act by the Advocates (Amendment) Ordinance No. 1 of 1962 which was later on replaced by Advocates (Amendment) Act 1962 being Act 14 of 1962.

27. Sub-section (4) of Section 58 is material for the purpose of this case and may be set out here-under :

''Notwithstanding the repeal by Sub-section (2) of Section 50 of the provisions of the Legal Practitioners Act, 1879 (18 of 1879) or of the Bombay Pleaders Act, 1920 (Bombay Act XVII of 1920), relating to the admission and enrolment of legal practitioners the provisions of those Acts and any rules made thereunder in so far as they relate to the issue' and renewal of a certificate to a legal practitioner authorising him to practise shall have effect until Chapter IV comes into force and accordingly, every certificate issued or renewed to a legal practitioner (who is not enrolled as an Advocate tinder this Act) which is or purports to be issued or renewed under the provisions of either of the aforesaid Acts during the period beginning with the 1st day of December, 1961 and ending with the date on which Chapter IV comes into force, shall be deemed to have been validly issued or renewed.'

28. On behalf of the appellant strong reliance has been placed on this Sub-section (4) and it is argued that this sub-section restores and revives all the provisions of the Legal Practitioners Act and of the rules made thereunder relating to admission and enrolment of Legal Practitioners and so the right to appear in the Mukhtearship Examination and the obligation to hold such examination are also revived and the order of cancellation of the examination is therefore illegal. But a careful perusal of the sub-section makes it clear that the argument is devoid of any substance. What Sub-section (4) provides is that although by reason of Sub-section (2) of Section 50 the provisions of the Legal Practitioners Act and of any rules made thereunder relating to admission and enrolment of legal practitioners have been repealed, yet such provisions, only in so far as they relate to the issue and renewal of a certificate to a legal practitioner authorising him to practise, shall continue to operate until Chapter IV of the Advocates Act comes into force. The sub-section has not the effect of reviving wholly the provisions relating to admission and enrolment. If such had been the intention of the legislature then in place of the words 'in so far as they relate to issue and renewal of a certificate to the legal practitioner authorising him to practise' the words 'in so far as they relate to such admission and enrolment' would have been used. Sub-section (4) aims at reviving only the provisions relating to the actual grant or issue of certificate for the first time, or renewal thereof, in cases where such certificates have not yet been, for any reason, granted or issued, or where renewal of certificates already granted, is necessary. The sub-section further provides that such issue and renewal of certificates will continue until Chapter IV of the Advocates Act comes into force. Therefore the amendment introduced by Act 14 of 1962 is of no assistance to the appellant, so far as the right to appear in or the obligation to hold the Mukhtearship Examination are concerned.

29. A further point was raised that the repeal which was effected by Sub-section (2) of Section 50 of the Advocates Act, 1961 on 1st December 1961 could not affect the right which had already accrued to the appellant to sit for the Mukhtearship Examination and the obligation that was created to hold the examination, by reason of the facts, that on 1st August, 1961, the Committee of Legal Education had issued a notice inviting applications from candidates intending to sit for the examination proposed to be held in February or March 1962, and the appellant had made the necessary application and had deposited the prescribed examination fee of Rs. 20/- on or before the 15th November 1961. Reliance is placed on Section 6 of the General Clauses-Act 1897 in support of this argument, and it is submitted that anything duly done or suffered, or any right accrued or obligation incurred under the provisions of the repealed enactments or laws, are saved and preserved by this Section 6, and so the obligation to hold the examination notified to be held in February or March 1962 which was incurred before the repeal was saved. It is to be noted however that the wording of Section 6 itself makes it clear that the provisions of Section 6 will come into play unless a different intention appears, and as pointed out already, Sub-section (4) of Section 58 which was introduced into the Advocates Act 1961 by Act 14 of 1962 and which by reason of Section 4 of the Amending Act 14 of 1962, shall be deemed always to have been inserted, does express a different intention to the effect that it is only the right to the issue and renewal of the certificates that is saved or preserved and nothing else is saved or preserved. Consequently it must be held that the argument based on the provisions of Section 6 of the General Clauses Act has no force.

30. The only other point that was argued on behalf of the appellant is that Section 50(2) of the Advocates Act is ultra vires the Constitution as it infringes Article 19(1)(g) by putting an end to the right to practise the profession of a Mukhtear. In my view this argument is fallacious. Mukhtears are only a class of legal practitioners who practise the profession of law. As the definition of the expression 'Legal Practitioners' as given in Section 3 of the Legal Practitioners Act 1879 (Act XVIII of 1879) indicates 'Legal Practitioner' means an Advocate, Vakil or attorney of any High Court, a pleader, Mukhtear or Revenue. Agent. The Advocates Act, 1961 as the preamble indicates, aims at amending and consolidating the law relating to legal practitioners and provides that after the whole Act comes into force there will be recognised only one class of persons entitled to practise the profession of law namely Advocates (Section 29 of the Act) and prescribes the qualifications of such persons, the procedure for their enrolment and admission, and various other matters. Such a legislation is covered by the provisions introduced in Clause (6) of Article 19 of the Constitution by Section 3 of the Constitution (First Amendment) Act 1951 which enacts that nothing in Sub-clause (g) of Clause (i) of Article 19 will prevent the State from making any law relating to the professional qualifications necessary for practising any profession. The Advocates Act enacts that only one class of persons to be called Advocates possessing the qualifications prescribed in the Act will be admitted to the practice of the profession of law. The legislation is thus one relating to professional qualifications for practising the profession of law, as contemplated by Clause (i) of the second part of Clause (6) of Article 19 of the Constitution. It has been pointed out by the Supreme Court in the case of Saghir Ahmed v. State of Uttar Pradesh : [1955]1SCR707 that the result of the amendment of the Constitution introducing the second part in Clause (6) of Article 19 is that State would not have to justify an action taken under this clause as reasonable at all in a Court of law and no objection could be taken to it on the ground that it is an infringement of the right guaranteed under Article 19(1)(g) of the Constitution. (Paragraph 23 of the Judgment). The section in question therefore cannot be challenged as ultra vires.

31. In this view of the matter it is not necessary to go into the further question whether the impugned legislation which extinguishes the right of further enrolment of Mukhtear is also covered by the first part of Clause (6) of Article 19.

32. It may be however pointed out that the first part of Clause (6) of Article 19 of the Constitution, authorises the State to make any law imposing in the interests of the general public reasonable restrictions on the exercise of the right conferred by Sub-clause (g) of Clause (1) of Article 19 and so even if the right of future enrolment as a Mukhtear is put an end to by the Advocates Act and it amounts to a total prohibition, such prohibition can be regarded as a 'restriction' within the meaning of Clause (6) of Article 19. (See 'Narendra Kumar v. Union of India : [1960]2SCR375 of the judgment). The further question whether the restriction is reasonable is a debatable one. But a provision like Section 9(r) proviso of the Bai Councils Act has been upheld as valid (See : AIR1954SC524 -- Babul Chandra v. Chief Justice and Judges of Patna High Court).

33. In this case an application was made before the Supreme Court under Article 32 and the grievance of the petitioner was that in spite of his compliance with all the requirements that are necessary under the Bar Council Rules of the Patna High Court for being enrolled as an Advocate the High Court refused his application for enrolment and that without assigning any reason. The Supreme Court held that a complete answer to this was furnished by the proviso to Section 9(i) of the Indian Bar Councils Act which provides that the Rules 'shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion.'

34. The Supreme Court further negatived the contention that this proviso to Section 9(1) of the Indian Bar Councils Act was void as conflicting with the fundamental right guaranteed under Article 19(1)(g) and that it did not come within the protection afforded by Clause (6) of that Article, and observed that :

'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.'

35. It is true that in this case there was no question of the Advocates' right of practice bring taken away by any legislation but the overriding power given to the High Court to refuse admission to any person in the exercise of its discretion notwithstanding compliance with all the rules of admission was upheld as a reasonable restriction.

36. The practice of legal profession is a privilege granted to individuals of practising in particular Courts, that is of representing clients before the Courts and of claiming audience in Court. It is, therefore, elemental that the State has to be given the power of fixing the terms of admission into such Courts and of laying down and enforcing standards of conduct of persons appearing before the Courts. It is for this purpose that legislative power has been conferred in Schedule VII (List III Item 26) authorising legislation with regard to legal profession. The legislature has in exercise of this power thought fit to impose uniform standards for enrolment in future of the persons who want to practise the profession of law. It is therefore difficult to see why the legislation should be regarded as an unreasonable restriction. However, this aspect of the matter need not be pursued any further as the impugned legislation is within the scope of the legislative authority conferred by second part of Clause (6) of Article 19 of the Constitution.

37. This disposes of all the points raised inthis appeal and I concur in the order proposedby my learned brother that the appeal should bedismissed. There will be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //