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Bhupati Bhusan Dalal Vs. Registrar of the Original Side - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 409(w) of 1970
Judge
Reported inAIR1971Cal519
ActsCalcutta High Court (Original Side), Rules, 1914 - Rules 1 and 22; ;Bar Councils Act, 1926 - Section 9(4), 14 and 14(3); ;Constitution of India - Articles 19(6) and 226; ;Advocates Act - Section 50(3)
AppellantBhupati Bhusan Dalal
RespondentRegistrar of the Original Side
Appellant AdvocateBireswar Bhattacharyya, Adv.
Respondent AdvocateS.C. Das Gupta, ;H.P. Mukherjee, ;R.C. Kar, ;R.C. Deb, ;S. Ghosh and ;P.K. Bandopadhyaya, Advs.
Cases ReferredHindley v. Marwari.
Excerpt:
- orderd. basu, j. 1. the petitioner in this rule is an advocate enrolled under the advocates act, 1961. in his petition filed on 16-4-1969, he challenged the validity of rule 22 of chap. i of the 'rules of the high court of calcutta (1914) --original side', on certain grounds. during the pendency of the rule, the high court, on 3-10-1969, amended rule 1 of chapter i of the said rules, by inserting a proviso to that rule, which was published by the registrar, original side, on 16-10-1969 (which will hereinafter be referred to as the 'proviso to rule 1), with the leave of this court, by order dated 29-9-1969. since by that order the registrar was also given permission to give effect to the said proviso, corresponding leave was granted to the petitioner to so amend his petition as to.....
Judgment:
ORDER

D. Basu, J.

1. The Petitioner in this Rule is an Advocate enrolled under the Advocates Act, 1961. In his petition filed on 16-4-1969, he challenged the validity of Rule 22 of Chap. I of the 'Rules of the High Court of Calcutta (1914) --Original Side', on certain grounds. During the pendency of the Rule, the High Court, on 3-10-1969, amended Rule 1 of Chapter I of the said Rules, by inserting a Proviso to that Rule, which was published by the Registrar, Original Side, on 16-10-1969 (which will hereinafter be referred to as the 'proviso to Rule 1), with the leave of this Court, by order dated 29-9-1969. Since by that order the Registrar was also given permission to give effect to the said Proviso, corresponding leave was granted to the petitioner to so amend his petition as to comprehend the Proviso within the sweep of his petition.

2. The Petitioner having accordingly amended his petition, the reliefs sought for by the petitioner at the hearing may be summarised as follows:

(i) Rule 22 should be quashed and Respondent No. 1, the Registrar, Original Side should be restrained from giving effect to that Rule;

(ii) The petitioner should be declared to be entitled to act for suitors in all jurisdictions of this High Court, without being required to comply with the conditions laid down in the Proviso to Rule 1, and the Registrar should be restrained from preventing the Petitioner from so acting.

3. The grounds on which these reliefs have been sought for will be dealt with serially hereafter, excepting that the ground challenging the constitutionality of the Advocates Act, 1961 has not been pressed at the hearing.

4. The Registrar, Original Side, was the only Opposite Party in the petition initially. At the hearing of the motion, leave was granted to add as Opposite Parties--the Secretaries of the Bar Association, the Incorporated Law Society and the Bar Library Club, since it was considered desirable that a matter like this should be heard in the presence of all parties who might possibly be interested.

5. The registrar has not filed any affidavit-in-opposition, excepting one against the supplementary affidavit of the petitioner. The Incorporated Law So-city did file an affidavit on 29-5-1970. After the Rule was heard on several dates commencing from 4-6-1970, on 23-11-1970, Mr. Deb, on behalf of the Bar Library Club, wanted to file an affidavit-in-opposition. This was refused by the order of Court dated 23-11-1970 on the ground, inter alia, that the party had not filed affidavit in due time even though its Head Clerk had been duly served. But the Bar Library Club was allowed to submit its arguments.

6. Since the parties have submitted precis of their arguments in writing, It would be convenient to take up the points urged on behalf of the Petitioner seriatim.

I. Validity of Rule 22 of Ch. I of the Rules of the High Court, Original Side.

7. Rule 22 runs as follows, without the Proviso, which is not material in the immediate context.

'Persons entitled to appear and plead in the Court in the exercise of its Original Jurisdiction shall, in all respects, conform to the practice of, and shall be subject to the same obligations and rules of professional etiquette whereby Advocates practising on the Original Side of the Court prior to the 1st day of July, 1968, were governed, so that no such person be entitled to act on the Original Side of the High Court.'

(a) It has been contended on behalf of the Petitioner, firstly, that Rule 22 has become ultra vires on the coming into force of the Advocates Act, 1961, which, according to the Petitioner, confers an unfettered legal right to practise in all jurisdictions of the High Court.

8. Rule 22 lays down that those who 'are entitled to appear and plead in the Court in the exercise of its Original Jurisdiction' must not 'act' on the 'Original Side of the High Court'. There is no controversy on the point now that the right 'to practise includes the right 'to act' and also that under the Rules of the High Court relating to the Appellate Side, Advocates enrolled under the Advocates Act have the right 'to act' as well. There is also no dispute on the question that prior to the insertion of the Proviso to Rule 1 in 1969, to which I shall advert separately, an Advocate (other than an 'Advocate of the Supreme Court', as to whom relaxation, on conditions, was made by an amendment of 1955, vide pp. 14-16 of the 1959 Ed. of the O. S. Rules), had no right, at all, to act in the Original Side of the High Court, and such right was confined to Attorneys, according to the Rules of the Original Side [vide Aswini v. Arabinda, : [1953]4SCR1 ].

9. The Opposite Parties contend that the power to make rules relating to this matter is conferred by Section 34 of the Advocates Act and, under Sub-section (3) thereof, the Rules existing on 'the appointed day' under the Act shall continue in force, as if they were rules made under the Act. According to the learned Advocate for the Petitioner, the terms of Section 34 would not sustain Rule 22. But before we may take up the question of applicability of Sec. 34 of the Act, it would be necessary to examine the tenability of the claim advanced on behalf of the petitioner that to-day, an Advocate enrolled under the Advocates Act has an unqualified legal right to practise under any of the jurisdictions of the High Court.

10. The argument on behalf of the petitioner was twofold-- (i) constitutional and (ii) statutory.

(i) Firstly, it has been argued that the right of a person to practise the legal profession is no less a profession than any other profession, the right to practise which is guaranteed as a fundamental right under Article 19(6) of the Constitution. This contention cannot, however, be accepted inasmuch as the view taken by the Supreme Court in a long run of cases is that the fundamental rights which are guaranteed by Article 19 refer to basic, natural or common law rights which are 'inherent in the citizen of a free country' as distinguished from those rights which are created by statute State of West Bengal v. Subodh Gopal, : [1954]1SCR587 ; Sakhawant v. State of Orissa, : [1955]1SCR1004 ; Jamna Prasad v. Lachhi Ram, : [1955]1SCR608 . A right created by statute can be exercised only subject to the conditions imposed by the statute and no question of infringement of any fundamental right can arise in such cases : [1962]3SCR305 .

The right of a lawyer to practise before a court of law can hardly be said to be a natural or common law right when in India, as will be shown presently, from the earliest times since the creation of courts under the British administration, the right rested on statutes, and so it had been held judicially prior to the Constitution (vide (1910) 7 Ind Cas 606 at p. 607 (Sindh.); AIR 1933 All 417 at p. 419 (FB)). After the commencement of the Constitution, similarly it has been held by some High Courts that it is founded on statutory grant and is not a fundamental right : AIR1952Bom296 .

On the other hand, in the early case of Babul Chandra v. Patna High Court, : AIR1954SC524 , the Supreme Court assumed that the right to practise before the High Court was a fundamental right and came to the conclusion that the restriction imposed by Section 9(1) of the Bar Councils Act, which was impugned in that case, was a 'reasonable restriction' prescribing a professional qualification necessary for practising any profession, within the purview of Clause (6) of Article 19 as it stood, prior to its amendment in 1951.

At the same time it is also striking that in Aswini Kumar's case, : [1953]4SCR1 , though there was a petition before the Supreme Court under Article 32, in the alternative, the Petitioner did not press his point that his right to practise was a fundamental right guaranteed by Article 19(1)(g), and he preferred to press his appeal against the decision of the High Court on the non-constitutional ground of ultra vires.

The reasonableness of a law laying down professional qualifications necessary for carrying on any profession is, however, no longer liable to be challenged and an absolute right has been conferred upon the Legislature to make such laws, by the amendment of Clause (6) by the Constitution (First Amendment) Act, 1951, and existing laws have been covered by that protection. Hence, even if the right of a person to carry on the legal profession be regarded as a fundamental right, the competence of the Legislature to empower the High Court to make rules to prescribe the qualifications for pleading or acting cannot be questioned on a constitutional ground and it cannot be asserted that a person has an absolute constitutional right to practise before any jurisdiction of the High Court, immune from any such Rules.

(ii) Let us now see whether any such unfettered right has been conferred by any statute.

11. Mr. Bhattacharyya, appearing on behalf of the petitioner, initially relied upon Section 30 of the Advocates Act, but after Mr. Deb pointed out that Section 30 of the Act has not as yet been brought into force, Mr. Bhattacharya urged that such right could be deduced from the other provisions of the Advocates Act as well as other preexisting laws.

(a) Letters Patent. -- The Letters Patent of 1865, by which the High Court at Calcutta was established, by virtue of power conferred by the Indian High Court Act, 1861, to replace the Supreme Court of Judicature and the Sudder Courts which had been abolished by the said Act, made it clear that the right of a person to practise before the Court was statutory and subject to the Rules made by the Court in this behalf.

Clause 9 of this Letters Patent may be said to contain two parts-

(1) By the first part, the High Court was empowered 'to approve, admit, and enroll such and so many Advocates, Vakils and Attorneys as to the said High Court shall seem fit';

(2) The Advocates etc. so admitted or enrolled, the second part provided, shall be authorized 'to appear for the suitors of the said High Court, and to plead or to act or to plead and act, for the said suitors, according as the said High Court by its rules and directions determine, and subject to such rules and directions'.

Clause 9, thus empowered the High Court to make rules regulating the right of lawyers to plead or to act and nobody was entitled, as of right, to do any of these things. Though the rule-making power in this behalf comprised both Original and Appellate jurisdictions, in the Rules which were actually made by the High Court in exercise of the foregoing power conferred by the Letters Patent, the High Court allowed Advocates both to plead and act in its Appellate Side, but on the Original Side they were denied the right to act, which was conferred on Attorneys, so that an Advocate could appear and plead in the Original Side only as instructed by Attorneys. This differentiation, as pointed out in the case of Aswini v. Arabinda, : [1953]4SCR1 was made on the assumption that the Ordinary Original Jurisdiction of the High Court was the successor of the Supreme Court, while the Appellate Jurisdiction was the successor of the Sudder Courts, where different practices as to Advocates and Attorneys, as aforesaid, prevailed.

(b) Legal Practitioners Act, 1879. -- The Legal Practitioners Act 1879, which was a consolidating and amending law relating to legal practitioners, maintained the foregoing position by declaring, in Section 4, inter alia, that an Advocate enrolled by any High Court was entitled to practise (as of right) in any court subordinate to such High Court. But this right was not extended to the High Court itself.

(c) Indian Bar Councils Act, 1926. -- Apart from the Advocates, there were other classes of legal practitioners to India, such as the Barristers, vakils, pleaders whom I have not mentioned so far, in order to avid complications. As pointed out in Aswini Kumar's case, : [1953]4SCR1 ; there was a demand for 'unification and autonomy of the Bar', as a result of which the Indian Bar Councils Act was passed in 1926. This was also a statute 'to consolidate and amend the law relating legal practitioners'.

It extended the concept of 'entitled as of right to practise' from the subordinate courts to the High Court itself, but subject to certain conditions.

(i) This right was to be confined to persons enrolled in the High Court and not extended to other persons (Section 8(1) and the definition of 'advocate' in Section 2(1)(a)).

(ii) Such enrolment, dependent on 'admission' was subject to the Rules made by the Bar Council, constituted under the Act, 'with the previous sanction of the High Court' and the 'discretion'' of the High Court itself to refuse admission to any person was also reserved (Section 9(1)).

(iii) So far as the High Courts at Calcutta and Bombay are concerned, the foregoing right of Advocates, for the fest time created by the Act of 1926, was subject to further limitations, as laid down in Section 9(4), namely,-- The existing power of the High Court, in respect of its Original Jurisdiction, (a) to prescribe the qualifications to be possessed by persons applying to practise in such jurisdiction, (b) the discretion to refuse any such application, or (c) to prescribe the conditions under which such persons shall be entitled to practise or plead, was not to be affected by any of 'the provisions of this Act'.

Section 14(1) made it clear that outside the Original Jurisdiction, as to which Section 9(4) applied, a person, once enrolled as an Advocate, was entitled, as of right, to practise, in any jurisdiction of that High Court:

'14. (1) An advocate shall be entitled as of right to practise-- (a) subject to the provisions of Sub-section (4) of Section 9, in the High Court of which he is an advocate .....,.........'

As regards the Original jurisdiction, the existing power of the High Court to make rules relating to the right of a person 'to plead and to act' was retained by Sub-section (3) of Section 14 in these words-

'Nothing in the section shall be deemed to limit or in any way affect the power of the High Court at Calcutta .................. to make rules determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction'.

A most concise summary of the foregoing provisions of the Bar Councils Act may be made in the words of Sastri, C. J., for the majority, in Aswini Kumar's case, (pp. 606-697. ibid.) = (AIR 1052 SC 369)-

',................. An Advocate of the Calcutta or Bombay High Court ............ not entitled to practise 'as of right' on the Original Side of his High Court as his right to practise is made under Section 14(1)(a) expressly subject to Section 9(4) which reserves the power of those Courts to exclude him from such right so far as the Original Side is concerned'.

(d) Supreme Court Advocates (Practise in High Court) Act, 1951.-- In 1951, Parliament made a special enactment to widen the rights of a particular class of Advocates, namely, those who were enrolled as Advocates before the Supreme Court. Though we are not directly concerned with this measure in the instant Rule, it would be useful to refer to this step in the history of unification of the Bar and also to refer to the Rules made by the Calcutta High Court, in 1955, governing the right to practise of such Advocates before the Original Side of the High Court. .

This Act briefly provided that an Advocate enrolled in the Supreme Court would be 'entitled as of right to practise' in any High Court in India. Notwithstanding this enactment, the Calcutta High Court sought to impose its Original Side Rules against a Supreme Court, Advocate, directing that he could not act in the Original Side except through an Attorney. The majority of the Supreme Court, in Aswini Kumar's case, : [1953]4SCR1 , quashed that order of the Registrar of the Original Side, holding that the right conferred by Section 2 of the Act of 1951 was an absolute right and that, in the absence of any provision in the Act corresponding to Section 9(4) of the Bar Councils Act, any Rule of the Calcutta High Court which prevents an Advocate from acting in the Original Side without the intervention of an Attorney could not prevail against the unqualified statutory right conferred on Supreme Court Advocates. Section 2 of the Act of 1951 was as follows:

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

In 1955, the Calcutta High Court made fresh rules imposing conditions specifically upon the right of Supreme Court Advocates in the Original Side of this Court.

The 1955 Rules (pp. 14-16 of the O. S. Rules, published in 1959), it may be observed at once appear to have served as a model to those who framed the impugned proviso to Rule 1, inserted in 1969, in relation to Advocates other than Advocates of the Supreme Court. By these Rules of 1955, the right of Supreme Court Advocates to act in the Original Side of the Calcutta High Court was made subject to certain conditions, such as a deposit of Rs. 500/-maintaining office address within the specified precincts of the High Court and, above all. Rule 7 which said-

'Save as otherwise expressly provided in these rules, all the rules appearing in the Original Side Rules of this Court relating to Attorneys shall apply mutatis mutandis to Advocates of the Supreme Court acting for litigants on the Original Side.'

I wonder how these Rules could be made by the High Court in the year 1955, in the face of the majority decision in Aswini Kumar's case, : [1953]4SCR1 that the statutory right conferred on the Supreme Court Advocates by the Act of 1951 was absolute and could not be fettered, in the absence of legislation to that effect, by the Rule-making power of the High Court relating to its Original Jurisdiction. But, since these Rules relating to Supreme Court Advocates were not challenged in this Petition, the power under which these rules were made in 1955 was not probably brought to light before me, so that I must leave the matter at that.

(e) Advocates Act, 1961. -- The Advocates Act is the next step forward in the implementation of the democratic policy of unification of the Bar. One might have supposed that the process was completed by this Act passed after a decade from the commencement of the Democratic Constitution, but any such expectation has been baffled by the sloth of the machinery set up by the Act to implement its provisions. The makers of the Act rightly envisaged that all the provisions of the Act could not be brought into force at once and the existing classification of the legal profession into so many classes could not be eliminated overnight. Hence, transitional provisions were included in the Act. It is a matter of pity, however, that the 'common roll', which is the basis of the right conferred by Section 30, could not be prepared in ten years from the passing of this Act, as a result of which the core of the Act could not be brought into force even to-day. As a result, the highly complicated and anomalous transitional provisions are still holding the field instead of the much-vaunted objective of a 'classless bar', governed by the same law.

Whatever happens to the merits of this petition, I consider it my duty to point out this regrettable situation to the Bar Council of India, which is entrusted, under Section 20, with the task of preparing this common roll.

In Chapter IV of the Act, Section 32 had been brought into force in 1963 and the remaining sections, excluding Section 30, have been brought into force by S. O. 1500, dated April 5, 1969, from June 1st, 1969. Mr. Bhattacharyya, for the Petitioner, however, argued that the legal right to practise as of right could be derived from Sections 29 and 33. apart from Section 30. It is not possible to accept this contention inasmuch as that would render Section 30 redundant. Sections 29 and 33 have only a negative implication, namely, that with effect from June 1st, 1969, no person other than an Advocate enrolled under the Act shall be entitled to practise before any court. These provisions oblige any person desirous of practising the legal profession, to comply with the requirement of enrolment under the Act.

The substantive right, comparable to Section 14(1) of the Bar Councils Act, is conferred by Section 30-

'Subject to the provisions of this Act, every advocate whose name is entered in the common roll shall be entitled as of right to practise throughout the territories to which this Act extends, (i) in all courts including the Supreme Court ...............'

What, then, would be the effect of non-enforcement of Section 30? So that there might not be any void owing to the repeal of the Bar Councils Act of 1926 and the position of an Advocate might not be inferior to that under the pre-existing law, Section 50 was inserted into the Advocates Act. This section contains several sub-sections dealing with a gradual process of repealing the pre-existing statutes pro tanto on the coming into force of the different Chapters of the Advocates Act.

(i) So far as Sub-section (2) of Section 50 is concerned, it relates to the commencement of Chap. III, which took place as early as December, 1961, so that the provisions in the Bar Councils Act and the Letters Patent relating to 'the admission and enrolment of legal practitioners' stand repealed. The High Court has, thus, lost its power in this behalf. With effect from 1961, it is the business of the Bar Councils under the Advocates Act.

(ii) Sub-section (3) of Section 50 says-

'On the date on which Chap. IV comes into force, the following shall stand repealed, namely,--

(c) Section 14 of the Indian Bar Councils Act, 1926, so much of Ss. 8 and 15 of that Act as confer on legal practitioners the right to practise in any court ...............;

(e) the provisions of the Letters Patent of any High Court and of any other law conferring on legal practitioners the right to practise in any court ...............'

12. It was at one stage argued by Mr. Bhattacharyya, that the words 'on the date on which Chapter IV comes into force', at the opening of Section 50(3) should be so interpreted as to mean 'on the date on which any of the provisions of Chapter IV comes into force'. Such interpretation cannot be imputed to the provision because that would require the addition of words to the statute which this Court is not competent to do. Apart from that, the very obvious scheme of Section 50 is to take a Chapter as a unit and then to advance a step forward just as one Chapter comes into force in toto.

13. The result of non-enforcement of Section 30, therefore, is that-

(a) Section 14 of the Bar Councils Act, 1926 still governs the rights of the petitioner before me. That prevents a gap being caused as to his legal right to practise. But, on the other hand, the statutory right to practise conferred by Section 14(1)(a) is not an unfettered one. It is subject to the provisions of Sections 9(4) and 14(3) of that Act which, as already explained, maintain in tact the power of the Calcutta High Court to make rules determining 'the persons who shall be entitled to plead and to act in the High Court in the exercise of its original jurisdiction' and the 'conditions under which such persons shall be entitled to practise or plead'. Hence, the impugned Rule 22 of the Original Side Rules still survives notwithstanding the passing of the Advocates Act, 1961 or the enforcement of parts thereof, so far as the Original Jurisdiction is concerned.

(b) The same result is also ensured by Clause (e) of Section 50(3).

(c) In the above state of affairs, it is unnecessary to refer to Section 34 of the Advocates Act inasmuch as the rule-making power of the High Court in respect of its Original Jurisdiction is still kept in tact by the operation of Section 50(3) of the Advocates Act so long as Section 30 is not given effect to, thereby bringing Chapter IV in force in toto. Nevertheless, since Section 34 has been brought into force with effect from 1969, it may be referred to in order to examine whether it has made any change in situation in regard to the pre-existing Rules.

14. Before taking up that question, it may be observed, in passing, that the object of bringing into force Section 34 before Section 30 is enforced is, obviously, to enable the High Court to make new Rules under the Advocates Act, relating to the Advocates' right to practise, in consonance with the tenor of the Advocates Act and the change in the atmosphere which has been brought about by the Constitution, instead of relying, any longer, upon antequated Rules dating from the days of the East India Company. With all respect, it must be said that the High Court has so far made no attempt to set foot on any comprehensive revision of the Rules and that the only thing produced is the impugned Proviso to Rule 1. I make these observations only to draw the attention of the Court, represented by its Registrar, to the need for such revision which is desired by the Legislature itself, by enacting Sub-sections (1) and (2) of Section 34.

15. Apart from anything else, the inevitable anomaly which is caused by such piecemeal amendment of the existing Rules may be demonstrated at once:

Under Rule 22 of the O. S. Rules, no Advocate is entitled to act on the Original Side. Prior to the insertion of the impugned Proviso, that bar was absolute. The impugned Proviso. engrafted to Rule 1, at the beginning of the Rules, confers that right, provided the conditions prescribed therein are complied with by an Advocate who is desirous of practising in the Original Side. Hence, as soon as the Proviso was inserted, it was incumbent upon the Rule-making authority to correspondingly amend Rule 22, to make it clear that the bar in Rule 22 would now be subject to the exception introduced by the new Proviso to Rule 1. But nothing in that behalf having been done, there is an inherent conflict between Rule 22 and the impugned Proviso to Rule 1, which cannot be left as it is after the anomaly has been brought before this Court judicially. Apart from the other orders, if any, on the merits of this Rule, therefore, I would direct the Registrar (Respondent No. 1) to place the Rules before the Court in its rule-making capacity, for a suitable amendment so that Rule 22 may be read subject to the proviso to Rule 1 of this chapter.'

(d) Sub-section (S) of Section 34 is a transitional provision which is intended to govern the situation, if any, caused by the fact that the High Court has not yet exercised its powers under Sub-sections (1-2) of Section 34, to make new Rules under the Advocates Act. To my mind, there are two such provisions, the other one being Section 50(3)(c) and (e), which has already been explained. According to the rules of construction, the two provisions must be interpreted to refer to two different situations:

(i) Section 50(3) saves the preexisting rule-making powers under the Letters Patent and the Bar Councils Act, together with the rules made thereunder, so long as the whole of Ch. IV is not brought in force;

(ii) Section 34(3) further continues the existence of those pre-existing Rules, if after Chap. IV has been brought into force, the High Court is not yet in a position to make new Rules in exercise of the power conferred by Section 34(1)(2).

It follows that the validity of the existing Original Side Rules must be determined with reference to the powers conferred by the laws prior to the Advocates Act.

Even if that has to be tested with reference to the provision in Section 34(3), the position would not be different. It was contended by Mr, Bhattacharyya that Section 34 has narrowed down the pre-existing rule-making power of the High Court and that the existing Rules cannot go beyond such narrower power inasmuch as Sub-section (3) of Section 34 says that the existing Rules will continue in force only 'so far as consistent with this Act'. We are thus led to an interpretation of the ambit of Sub-sections (1) and (2) of Section 34. The further contention of Mr. Bhattacharyya is that the only power now belonging to the High Court to make rules is that in Sub-section (2), Clause (iii) of that section, namely,

'Determining the persons who shall be entitled respectively to plead and to act in the High Court in the exercise of its original jurisdiction'.

16. It was urged by Mr. Bhattacharyya that the power to determine the persons in the foregoing Clause cannot sustain a power-

(i) to deny that right altogether, aa in Rule 22, to the Advocates who have a statutory right to plead and to act;

(ii) or to impose conditions upon that right, as in the impugned Proviso to Rule 1.

17. The contention cannot be accepted for two reasons-- (a) the power conferred in Sub-section (2) is by way of specific enumeration of some instances, while the general rule-making power is conferred by Sub-section (1), which empowers the High Court to impose conditions and, the provision in Sub-section (2) is 'without prejudice to the provision contained in Sub-section (2)' (vide Emperor v. Sibnath, AIR 1945 PC 156; Afzal v. State, 1964) 4 SCR 991 at p. 1000 - (AIR 1964 SC 164and (b) the statutory right relied upon by Mr. Bhattacharyya is derived, till now, not from the Advocates Act but from the Bar Councils Act, which saves the rule-making power of the High Court relating to the Original Jurisdiction, and that, again, is saved by Section 50(3), until Chap. IV of the Advocates Act is brought into force in toto.

18. More serious is the contention of Mr. Bhattacharyya that even though Rule 22 be continued to exist by the transitional provisions of the Advocates Act. read with Section 14 of the Bar Councils Act, its contents are beyond the limits permitted by Section 9(4) of the Bar Councils Act and are, to that extent, ultra vires, Sections 9(4) and 14(3) of the Bar Councils Act, as has already been pointed out, save the rule-making power of this High Court in relation to its 'original jurisdiction'. But Rule 22 and its Proviso exclude Advocates from acting-- (a) 'on the Original Side' and (b) also in 'appeals' from the 'Original Jurisdiction'. According to Mr. Bhattacharyya, which appears to be correct, these words in Rule 22 have a wider sweep than that authorised by Sections 9(4) and 14(3) of the Bar Councils Act. If so, Rule 22 should have been amended after coming into force of the Bar Councils Act; in the absence of such amendment, Rule 22 has become invalid in so far as it goes beyond the limits specified in Sections 9(4) and 14(3) of the Bar Councils Act.

19. (A) 'Original Side'.

The genesis of the expression 'Original Side' must have been in the administrative office of the High Court, for, none of the relevant statutes uses this expression. It is interesting to note that, as pointed out by Mr, Bhattacharyya, in the 1900 Edition of the Rules of this Court relating to its 'Several Jurisdictions', the Editor, Mr. Belchambers described himself as 'the late Registrar of the High Court in its Original Jurisdiction', while in the very second part of that Edition, Mr. Belchambers started calling himself as the Registrar of the 'Original Side', and the Rules in the second part were described as the 'Appellate Side' Rules. In all subsequent Editions, the two parts came to be printed as separate Volumes, under the title --Original Side Rules and Appellate Side Rules.

20. Section 9 of the Indian High Courts Act, 1861 which provided for the constitution of High Courts by Letters Patent, specified the jurisdictions which could be exercised by the High Court. The relevant portion thereof was as follows:

'Each of the High Courts ............ shall have and exercise all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate, and matrimonial jurisdiction, original and appellate ............... as Her Majesty may bysuch Letters Patent ............... grant anddirect.'

21. It is evident that apart from the civil and criminal jurisdiction, the High Court was to exercise some special jurisdictions over Admiralty, matrimonial and like matters. In the Letters Patent, which followed, the expression 'Original Jurisdiction' was used only in relation to civil jurisdiction, in Clauses 11-13, jurisdiction over infants, lunatics and insolvents, and in relation to criminal jurisdiction, in Clauses 22-24. The Admiralty, Matrimonial and Testamentary jurisdictions were treated separately, without mentioning whether they were to be treated as Original or otherwise. By the expression 'in the exercise of its orginal jurisdiction' the Bar Councils Act must have therefore meant the original civil and criminal jurisdiction and not any other jurisdiction which also the High Court might exercise under the Letters Patent.

22. It appears that in making the Rules and in publishing a compendium thereof, the rule-making authority treated these miscellaneous suits, such as Admiralty, Matrimonial and Testamentary Suits also as 'Original jurisdictions'. The entire set of rules were included in the publication relating to the Original Side'.

23. In passing, it may also be pointed out that the Calcutta High Court (Jurisdictional Limits) Act, 1919 defined the territorial limits of the 'ordinary civil jurisdiction' of the High Court and not of any of its other jurisdictions. Unfortunately, in Aswini Kumar's case, : [1953]4SCR1 the attention of the Court was not focussed upon the difference between the terms 'Original Side' and 'Original Jurisdiction'. But whatever might be the exact connotation and ambit of the expression 'Original Side', this much is clear that as a result of Section 14 of the Bar Councils Act, as held by the majority of the Supreme Court in Aswini Kumar's case. : [1953]4SCR1 the High Court lost its power to place any condition or limitation upon the statutory right of an Advocate in 'the Appellate and other jurisdictions' exercised by the Court, save only the Original jurisdiction (p. 698, ibid.).

24. Most curiously, when the Constitution was inaugurated and Article 226 conferred upon 'the High Court' the power to issue the constitutional writs, the antequated division of the High Court into the 'Original Side' and 'Appellate Side' was imported into the constitutional writ jurisdiction and, not only were different procedures prescribed for the issue of the same writs in similar cases, but the right of the Advocates to act was treated differently on the two sides, -- the division depending on the artificial territorial limits dating from the days of the East India Company, and not upon any difference in the nature of the jurisdictions. Rules 4-6 of the Rules, so introduced, under Article 226 thus provide-

'4. All applications for Writs in the nature of Mandamus, Prohibition and Quo Warranto, in which all the respondents reside or carry on business or have their offices situate within the ordinary original civil jurisdiction, of this High Court, whether they relate to a person, or court, or authority, whether exercising civil, criminal or administrative jurisdiction shall be dealt with by the Original Side and shall be marked as 'Original Side' applications.

5. All applications for Writ in the nature of certiorari, wherein the records are located or are available within the ordinary original civil jurisdiction of this High Court, whether they relate to an authority or court exercising civil or criminal or other jurisdiction shall be dealt with by the Original Side and shall likewise be marked as 'Original Side' applications, where such authority or court and any other person, having custody of the records, have their offices situate within the aforesaid ordinary original civil jurisdiction of this High Court.

6. All other applications whether they relate to a person or authority or court exercising civil or criminal or other jurisdiction shall be dealt with by the Appellate Side of the High Court and marked as 'Appellate Side' applications.'

25. It need hardly be point out that when a Judge on the Appellate Side takes up a petition under Article 226, he does not hear any appeal arising out of a petition under Article 226 but hears and determines the petition as an original writ proceeding in the same manner as his counterpart on the 'Original Side' disposes of such a petition, when arising within the territorial limits of the 'Original Side' of the same High Court. And yet, an Advocate is allowed to 'act' before the one Judge and not before the other. The position has been made more anomalous and untenable, by excepting certain some such applications marked 'Original Side', according to their subject-matter, by the Proviso in Rule 28, which makes interesting reading:

'28. So far as appearance of Advocates and Attorneys are concerned, the rules applicable in the Original Side will apply to applications marked 'Original Side' and the rules applicable in the Appellate Side will apply to applications marked 'Appellate Side'.

Provided that in the matter of applications marked 'Original Side' as aforesaid but relating to Industrial Tribunals or the Corporation of Calcutta or Income-tax or Agricultural Income-tax Authorities or Tribunals, Advocates, not entitled to practise on the Original Side and Advocates, so entitled under Chapter 1. Rule 2 (iii), (iv) and (vi) of the Original Side Rules, and Attorneys shall be entitled to appear and act.'

26. It may not be illegitimate to say that the bulk of the remaining Rules thus framed under Article 226 appears to have one objective, namely, to maintain the distinction between the 'Original Side' and the 'Appellate Side', not only in matters procedural and of legal representation but extend so far as the Judges who are to hear such applications. Rule 24 says-

'24. All applications under Article 226 of the Constitution shall, subject to any direction of the Chief Justice, be made before a Judge on the Original Side taking interlocutory applications or such other Judge as the Chief Justice may appoint.'

27. The latter part of the rule 'or such other ............... appoint' is a later addition introduced by way of amendment. So far as the original portion is concerned one might wonder whether it was not patently ultra vires Article 226 which confers the constitutional jurisdiction on the 'High Court', which includes each Judge of the High Court. Who shall be the 'Judges of the Original Side' is not indicated in the Rules themselves nor what constitutes their special competence to determine 'all applications under Article 226', to the exclusion of the other Judges of the High Court. So far as I am aware, every person appointed as a Judge of the High Court, under Article 217(1), is appointed a Judge of the High Court and takes his oath as such. No person is selected or appointed as a Judge of the Original or Appellate Side. How could, therefore a formal rule made in exercise of the constitutional power under Article 226, vest the jurisdiction in some of the Judges of the High Court, as a rule, without indicating what should be the qualifications to be dubbed a Judge on 'the Original Side'. The addition of the latter part 'or such other Judge' does not improve the position. If the matter Is to be left to the ultimate discretion of the Chief Justice, there is no reason why the first part of Rule 24 should not have been omitted altogether and substituted by the words introduced by the amendment.

28. Here, again, is a relic of history which deserved a decent burial long ago. Broadly speaking, prior to the enactment of the Specific Relief Act. 1877, the jurisdiction of the Calcutta High Court to issue the prerogative writs was derived from common law, read with the Charter of the Supreme Court. It was, accordingly, confined to the limits of the Presidency towns and, primarily, for the benefit of the British settlers. When the High Court came to be established, the power naturally came to be confined to its Original Jurisdiction: (of Ryots of Garabandhu v. Parlakimedi, 48 Cal WN 18 - (AIR 1943 PC 164)). In 1877, the Specific Relief Act was passed, Sec. 45 thereof substituted the prerogative writ of mandamus by a statutory order in the nature thereof Nomani v. Banwarilal, (1947) 51 Cal WN 716 and it was expressly limited to 'the local limits of the ordinary original civil jurisdiction and an order passed in such proceeding was treated as a 'decree made' in the 'ordinary original civil jurisdiction1 (Section 48). The High Court continued to retain its common law power to issue the other writs of prohibition, certiorari and quo warranto, within the same limits of its Original Jurisdiction. Naturally, motions for these writs were treated as 'Original Side' matters and placed before Judges sitting on that Side. Section 51 of the Specific Relief Act, 1877 conferred power upon the High Court to make rules to regulate the procedure for an application under Section 45, Chapter XXIX of the Original Side Rules was the product of this power and it applied mutatis mutandis (Rule 2), the Rules relating to 'Original Side motions' in Chapter XX (vide 1914 Ed. of O. S. Rules) to motions for an order in the nature of mandamus under the Specific Relief Act, 1877.

29. The one beneficial thing done by the Constitution of India, which I regret to say, was not realised by the rule-making authority of this Court, was that Article 226 of the Constitution extended the power to issue the prerogative writs to all persons and authorities within the jurisdiction of the High Court, whether original or appellate and free from any statutory limitations and in supersession of the common law power or the statutory power under the Specific Relief Act. Some anomaly, of course, continued to exist so long as the cramping statutory provisions in the Specific Relief Act were not removed. This anomaly having been pointed out by the Law Commission, Sections 45-51 of the Act, 1877, were effaced in toto when the Specific Relief Act of 1963 came to be enacted.

30. But. notwithstanding all this, and the fact that Article 226 of the Constitution has severed its roots with the past and placed the power to issue the prerogative writs in 'every High Court', the Rule-making authority, while making fresh Rules relating to the exercise of the power under Article 226 found it hard to get rid of the past and the old obsession of all applications for the prerogative writs being placed before 'a Judge on the Original Side' presented. The subsequent amendment at the end of the Rule 24, which I have already pointed out, does not speak of any reorientation in the matter. The position becomes all the more anomalous when it is seen that all applications for habeas corpus, which are now founded on Article 226 of the Constitution and not Section 491 of the Criminal P. C. are to be disposed of by the Appellate Side (A. S. Rules, Vol. I, Ch. XI, Rule 28-A). So also are all proceedings under Article 227 (A. S. Rules, Vol. I, Ch. II, pp. 8, 13), even though there is little difference between such proceeding and a proceeding for certiorari, as to the issues involved and the effect of the order, if granted.

31. This digression upon Rule 24 has no direct bearing on the merits of the petition but has been resorted to by me to illustrate that the Rules made by the Court have not always followed a logical system derived from the Constitution and the relevant statutes and also for the purpose of drawing the attention of the rule-making authority to the need for a comprehensive revision.

32. It has also been pointed out by Mr. Bhattacharyya that there was a time when even applications for revision under Section 115 of the Civil P. C. against decrees of the Presidency Small Causes Court were treated as appertaining to the Original Side vide Hindley v. Marwari. ILR 46 Cal 962 = (AIR 1920 Cal 305), and that the Rules had to be changed to exclude these from the ambit of the Original Side.

33. It is not necessary for me to determine exclusively what matters would properly come within the fold of the expression 'Original Jurisdiction'. What has so far been stated makes it clear that the expression 'Original Side' is not. in fact or law, identical with the expression 'Original Jurisdiction', but is much wider.

34. In the result, the use of the expression 'Original Side' instead of the expression 'Original Jurisdiction' has become ultra vires and invalid since the coming into force of the Bar Councils Act and Respondent No. 1 should be directed not to enforce Rule 22 against the petitioner in any jurisdiction of the High Court other than its 'Original Jurisdiction',

B. Appeals from Original Jurisdiction.

35. Hardly any authority is required to assert, that, literally, 'original' and 'appellate' are contrary concepts, so that the one cannot be comprehended in the other. In fact, from the very High Courts Act. 1861 downwards, this distinction has been maintained by all the relevant laws. Thus. Section 9 of the Act of 1861 which specified the various jurisdictions that the High Courts were to exercise, used the words 'original' and 'appellate', in juxtaposition to each other. This disstinction and terminology is also used in other sections of that Act, such as 13.

36. It is patent that the Letters Patent of 1865, which was a subordinate legislation made in exercise of the power conferred by the Act of. 1861, could not transgress the provisions of the Act of 1861, which was recited as the source of its power in the Preamble of the Letters Patent itself, and, on an analysis of its provisions, it will be evident that the Letters Patent maintained the distinction between the Original and Appellate Jurisdictions of this High Court:

(a) Original jurisdiction: This is sub-divided under two sub-heads Ordinary original civil jurisdiction, which is dealt with in Clauses 11-12, and extraordinary original civil jurisdiction, which is dealt with in Clause 13. Similarly, the criminal jurisdiction of the High Court is divided under two heads ordinary and extraordinary in Clauses 22 and 24 respectively.

(b) Appellate jurisdiction: There was no question of any appellate jurisdiction over the original criminal jurisdiction of the High Court, because any appeal from that jurisdiction was barred by Clause 25. The criminal appellate jurisdiction of the High Court was therefore confined, by Clause 27, to appeals from Criminal Courts in the Provinces and the expression 'appellate jurisdiction' is used in the body of Clause 27.

37. As to civil appeals to the High Court, apart from the 'appellate jurisdiction' from decisions of Courts in the Provinces, which was dealt with In Clause 16, the 'appellate jurisdiction' of the High Court, under Clause 15, was to extend over the judgments of a Single Judge of the High Court, and one Judge of a Division Bench thereof, whether exercising original or appellate jurisdiction, subject to certain exceptions specified In that clause, with which we are not concerned, in the present context. Clause 15 refers to what is popularly known as 'Letters Patent Appeals'. There is no doubt that the jurisdiction under Clause 15 is classed by Letters Patent itself as 'appellate jurisdiction', which expression is used in the marginal note to Clause 15.

38. The distinction between the 'Original' and the 'appellate' jurisdictions of this High Court having thus been well-settled from the inception of the Court, when the Legislature used the expression 'in exercise of the original jurisdiction' in Section 9(4) or 14(3) of the Bar Councils Act, must be understood to refer to the 'original jurisdiction' as just explained and not to include the appellate jurisdiction to hear appeals from the subordinate courts or from Single Judges of the High Court, exercising original or appellate jurisdiction.

39. The exclusion of 'appeals from the Original jurisdiction in the Proviso to Rule 22 was therefore patently unwarranted after the coming into force of the Bar Councils Act, in view of Sections 9(4) and 14(3), referred to by me already.

40. As to how these appeals came to be separately dealt with in the 'Orginal Side Rules', some explanation may be given. Mr. Deb, on behalf of the Opposite Party, referred to Clause 37 of the Letters Patent as to authority of the rule-making power of the High Court relating, inter alia, to appeals from the Original Jurisdiction. No doubt, the language of CL 37 is wide enough to include both original and appellate jurisdiction, but it is confined to one specified matter only, namely, 'the purpose of regulating all proceedings in civil. cases'. It is evident at once that the rule-making power conferred by Clause 37 related to matters other than those already covered by Clause 9, which has been explained by me earlier. While Clause 9 empowered the High Court to make rules to deal with the admission of lawyers and their right to plead or to act, Cl, 37 conferred the power to regulate the procedure in the civil and other jurisdictions mentioned therein. Hence, a rule governing the right to plead or to act, such as Rule 22 could not be sustained by anything in Clause 37. The reason why separate provision was to be made is clear from the text of Clause 37 itself. The procedural rules in the Civil. P. C. were not to be applicable to civil proceedings before the High Court and that is why the High Court was empowered to make special rules in this behalf, though in making such rules, the High Court was to take into consideration what was provided in the Code. Section 129 of the Civil P. C. for the same reason, cannot be invoked to sustain a power to make rules regulating the right to plead or to act, because it is confined to matters of procedure relating to the Original civil jurisdiction of the High Court.

41. So far as the contents of Chapter XXXI of the O. S. Rules, dealing with 'Appeals from Judgments of First Instance on the Original Side' are concerned, it must be held that they are procedural rules, which the High Court is empowered by Clause 37 to make. It may be that for the sake of convenience of reference these Rules have been incorporated in the collection of Rules relating to the O. S. rather than to the A. S., in the edition subsequent to 1900.

42. To exclude, by Rule 22, the Advocates from acting in appeals from the Original Jurisdiction is, however, another matter. This cannot, as just held by me, come within the ambit of Clause 37. It came under Clause 9 of the Letters Patent and was valid until the Bar Councils Act, 1926 came into force. Sections 9(4) and 14(3) of that Act. as held by me earlier, saved only the rule-making power of the High Court in so far as it related to its 'original' jurisdiction. Any rule made by the High Court, barring the right of an Advocate to act in appeals from the Original Jurisdiction, must have become invalid on the coming into force of Section 14 of the Bar Councils Act and the very power of the High Court to make such Rules by virtue of the Letters Patent was taken away, by invalidating the Letters Patent, to that extent, by Section 19(2) of the Bar Councils Act, which has not yet been repealed providing-

'When Sections 8-16 come into force in respect of any High Court ............ established by Letters Patent, this Act shall have effect in respect of such Court notwithstanding anything contained in such Letters Patent, and such Letters Patent shall, in so far as they are inconsistent with this Act or any rules made thereunder, be deemed to have been repealed.'

43. The conclusions that emerge from the foregoing discussion are-

(i) Appeals from the Original jurisdiction lie to the Appellate jurisdiction of the High Court. Anything like an appellate-original or original-appellate jurisdiction is not conceived of by any of the relevant laws just discussed.

(ii) Nothing corresponding to Section 9(4) was reserved by the Bar Councils Act to save the rule-making power of the High Court to regulate acting before the Appellate Jurisdiction of the High Court.

44. The Advocates Act does not go back against the aforesaid position. By Section 50(2)(d), which has come into force in December, 1961, that part of Clause 9 of the Letters Patent which gave the High Court the power relating to 'admission and enrolment of legal practitioners' has already been taken away. Of course, the latter part of Clause 9 relating to the right to practise of legal practitioners is still there, by virtue of Section 50(3)(e) of the Advocates Act so long as the remaining section of Chapter IV, namely. Section 30 is not given effect to, but the power under Section 50(3)(e) must be read as subject to the limitation already imposed by the Bar Councils Act, which is continued to exist, during the same period, by Section 50(3)(c). That limitation is that the power of the High Court in relation to the right to practise is to be exercised within the limits of the 'Original jurisdiction', by reason of Sections 14(1)(a) and 9(4) of Bar Councils Act and anything in Clause 9 of the Letters Patent which went beyond that stands repealed since the coming into effect of Section 19(2) of the Bar Councils Act, 1926. Article 225 of the Constitution did not revive what had thus been repealed prior to commencement of the Constitution.

45. It was argued by Mr. Deb that even if this were the position under the Bar Councils Act. Section 30(1) of the Advocates Act was wide enough to empower the High Court to regulate the right of an Advocate to practise before the Appellate jurisdiction of the High Court. To accept any such argument would be to hold that the Advocates Act, 1961 is a retrograde measure and subjects the right of an Advocate to practise in a measure larger than permissible under the Bar Councils Act. I have shown that the history of the legislation relating to the Bar has been one of progression towards unification and autonomy. The Bar Councils Act and its successor, the Advocates Act have even taken away the disciplinary jurisdiction of the High Court over Advocates and placed it in the hands of a corporate body, namely, the Bar Council. In this background, it cannot be supposed that, after enunciating, in Section 30, the statutory right of an Advocate in a language similar to that in Section 14(1) of the Bar Councils Act, the Advocates Act would place restrictions upon that right in a sphere outside that covered by Section 9(4) of the Bar Councils Act, as explained by the majority of the Supreme Court in Aswini Kumar's case, : [1953]4SCR1 .

46. Further, I have already shown that owing to the non-enforcement of Section 30 as yet, Sections 8-15 of the Bar Councils Act as to the right to practise are still holding the field. (Section 50(3) of the Advocates Act) and there is nothing in the Advocates Act to resurrect what had become ultra vires and invalid on the coming into force of the Bar Councils Act. In particular. Section 34(3), which was relied upon on behalf of the O. P., has no such effect, because it only maintains those which were in force at the commencement of the Advocates Act. It has also been pointed out that any reliance on the Letters Patent (Clause 9, in particular) to sustain such regulation beyond the 'Original Jurisdiction' will be of no avail, in view of Section 19(2) of the Bar Councils Act, which I have already explained.

(iii) The words 'and on appeal therefrom', at the end of the Proviso to Rule 22 thus become ultra vires and invalid on the coming into force of the Bar Councils Act. In the result,

(a) The words 'and on appeal therefrom' at the end of the Proviso to Rule 22 shall be read as omitted from the Proviso to Rule 22.

(b) Respondent No. 1 shall be restrained from giving effect to the said Proviso and from barring the Petitioner from 'acting' in appeals from the Original Jurisdiction.

(c) The Registrar should be directed to place Rule 22 before the rule-making authority to make suitable amendments in Rule 22, in the light of the foregoing observations.

II. Validity of the Proviso to Rule 1-

47. I. Before going into the other points raised in relation to the Proviso, it may at once be stated that, in view of the proceeding discussion relating to the expression 'original jurisdiction' and 'Original Side' the use of the expression 'Original Side' in the opening part of the Proviso is patently untenable. In fact, there is no reason whatever why the Proviso should use a language other than what the enacting portion of Rule 1 uses, having regard to the function of a Proviso according to the law of interpretation of statutes. The rule with the opening part of the proviso reads as follows:

'1. Any person qualified as hereinafter stated may appear and plead in the High Court in the exercise of its Original Jurisdiction and if such application is granted shall be entitled so to appear and plead and be subject to the rules contained in this Chapter.

Provided that any person qualified to appear and plead on the Original Side under the above rule............. may also apply to act in the High Court in the exercise of its original jurisdiction and if such application is granted, shall also be entitled to act subject to the following sub-rules ..................'

48. By Rule 1, persons are allowed to appear and plead, subject to certain conditions, 'in the High Court in the exercise of its Original jurisdiction'. The reference in the Proviso to 'any person qualified to appear and plead on the Original Side under the above rule' is thus patently wrong. I might have omitted to say anything on this point but for the fact that the same expression 'Original Side' is used in all the sub-rules of the Proviso.

49. Having regard to my preceding conclusion that the statutory provisions in Sections 9(4) and 14(3) of the Bar Councils Act empower the High Court to make rules relating to the Original jurisdiction of the High Court alone, that expression should be used in the impugned Proviso, instead of the expression 'Original Side', and the Registrar should be directed to draw the attention of the Court in its administrative capacity to this point.

50. II. It was contended by Mr. Bhattacharyya, in general, that the amendment which introduced the impugned Proviso is altogether without legal authority since it does not recite under what statutory power the amendment was being made. But, as has been held very often by the courts of the highest authority, a subordinate law-making body need not necessarily recite the precise statutory provision under which a rule or other statutory instrument is made. It would suffice for the validity of the subordinate legislation if anv statutory provision may be shown to sustain it.

51. I have already given my reasons for holding that the field, owing to the non-enforcement of Section 30. is still held by the Bar Councils Act. The contention of Mr. Bhattacharyya that the Bar Councils Act did not empower the High Court to lay down any conditions subject to which only the right of an Advocate to practise or to act could be exercised, is not correct because the latter part of Section 9(4) of that Act empowered the High Court 'to prescribe the conditions under which such persons shall be entitled to practise or to plead', in the Original Jurisdiction.

52. Since the power under the Bar Councils Act is still available to the High Court, the impugned amendment may be sustained on that ground.

53. In this view, it is not necessary for me to deal with the assertion made by Mr. Deb that such power is, under Section 34(1) of the Advocates Act. available even with respect to the Appellate Jurisdiction. But, as I have said, there is nothing in the Advocates Act, 1961, to override the interpretation given in Aswini Kumar's case, : [1953]4SCR1 that in view of Section 14(1), read with Section 9(4) of the Bar Councils Act, the power of the High Court to lay down such conditions was confined to the Original jurisdiction only and could not extend to the Appellate Jurisdiction, : [1953]4SCR1 . This question is, however, academic, in view of my conclusion that since the Bar Councils Act has not yet been repealed, even though Section 34(1) of the Advocates Act has been brought into force, in the absence of any non obstante clause, Section 34(1) cannot be construed so as to override Sections 9(4) and 14 of the Bar Councils Act, at least so long as they survive.

54. III. It was next contended on behalf of the Petitioner that the power to prescribe 'condition' upon the exercise of a right cannot include the power to impose a condition which would destroy the right itself or render its exercise impossible. Such a condition, it was urged, was in Clause (1) of the Proviso. According to para. 6 of the Supplementary affidavit dated 15-12-1966, it was impossible, to-day, to find out an office accommodation within the boundaries specified in Clause (1) of the Proviso; and that even if any such accommodation be available it would be beyond the means of many of the Advocates. In para 29 of the counter-affidavit it is stated that a new block of flats is under construction within the specified area which would (in future) afford ample accommodation to newcomers. Of course, the particulars of rents or other conditions on which such accommodation would be available are not given in the counter-affidavit. This is, however, a disputed question of fact, upon which the decision in the present proceeding cannot rest; and, in particular, I could not enter further into this disputed question because of certain other broad considerations in view of which the petitioner cannot succeed on the instant point in this proceeding.

55. The first is that the petitioner has not given any particulars as to what attempts he has made to secure accommodation; secondly, there is another set of Rules which impose identical conditions, though the language may be different, and those affected by those Rules have not joined in this petition or been brought on the record. Those are the 'Rules relating to practice of Supreme Court Advocates on the Original Side of the High Court' at pp. 14-16 of the O. S, Rules, Vol. I. to which I have referred earlier. It may be pointed out in this context, that owing to the provision in Section 50(3)(d) of the Advocates Act the category of Supreme Court Advocates or the statute governing them cannot be said to have as yet been defunct. If the condition imposed by Clause (1) of the impugned Proviso be ultra vires, it must necessarily be so with respect to the condition imposed by Sub-rule (2) of the Supreme Court Advocates Rules. It was therefore necessary to challenge the validity of the rule as well and to bring on the record the Supreme Court Advocates and the Rules affecting them, by resorting to Order 1, Rule 8 or the like, in order to obtain a judicial verdict as to the condition being ultra vires or discriminatory against the Advocates vis a vis the Attorneys.

56. I would therefore reject this point, without prejudice to the right of the petitioner to make a fresh challenge on proper averments and with proper parties.

57. The contention advanced on behalf of the Petitioner that the impugned Proviso makes a discrimination between the Advocates and the Attorneys inasmuch as the condition, such as a cash deposit of Rs. 500/-, imposed by Clause (9) of the Proviso, is not applicable to Attorneys is not correct since the said Sub-rule is applicable to all the classes of lawyers entitled to act 'in the Original Side' and Attorneys are not exempted by the Rule. This has in fact, been conceded by Mr. Deb. It is not necessary for me, further to go into the disputed question of fact whether the Registrar has, in fact, exempted any Attorney or Attorneys from the operation of Sub-rule (9) which has been brought into force so recently. He being an officer of this Court, it would suffice for me to point out that he has no such power and that he is bound to enforce Sub-rule (9) aga


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