Surajmal Surolia v. The Bar Council of India & Others

GOSWAMI, J. This writ petition under Article 32 of the Consti· tution is directed against an or_der passec! by the Bar Council of Delhi refu~ing to enrol the petitioner as an advocate under the Advocates Act, 1961 (Act 25 of 1961), hereinafter referred to as the Act. Since the order was passed by the Delhi Bar Council after reference to the Bar Council of India under section 26(2) of the Act, both the Bar Councils are impleaded as the first and the second respondents respec-tively. The third• respondent is the Union of India in the l\llinistry of Law since the petitioner takes an additional ground that section 26(2) of the ·Act is in conffict with section 48A of the same Act.

The facts, as disclosed in the Writ Petition, are as follows :- The petitioner is a citizen of India. Under the laws then prevailing he was granted sanad by the highest court ljlas Thikana Khetri on 22nd November, 1936. The petitioner states that Thikana Khetri was a small native state having jw-isdiction to make Jaws and enforce the same. On the bas'is of that sanad the petition.er started practice at Loharu, another I\ative state, in I 944 and continued to practise till May 1947 when he joined• service as a Civil Supply Officer, Khetri. The petitioner informed about his joining service to the enrolment authority and received a telegram from Diwan of Khetri (Annexure-A) which takes note of his joining. service and discont~nuance ·of practice. Although the petitioner has stated that this telegram was received from Diwan of Khetri, a perusal of the same shows that the telegram was really from Diwan of Loharu, which was the office of origin of the tele-gram. The petitioner's sanad (Annexure-C) which bears the seal of ljlas Thikana Khetri dated 22nd November, I 936, is signed by one Hari Prasad, Secretary, ljlas Thikana Khetri and shows that "he has been enrolled us a vakil and authorised to practise in all the Ci,·il, Criminal, Custom and Excise and Revenue Courts of Thikana Khetri". There 1is an endorsement below the Secretary's signature to the effect "practice allowed", "Sd/-Loharu State". It is, .therefore, understaDdable that the petitioner would have received the telegram (Annexure-A) from Diwan, Lo.haru. The petitioner resigned from service in I 948 ar.d in 1955 he applied to the District Judge, Jaipur, intimating Iris intention to recommence practice. But his application was rejected by the Rajasthan High Court on September IO, 1955. The petitioner further states in his petition that his applicaticnr was rejected by the High Court under rule 421 of the Rajasthan High Court Rules, 1952, on account <>f his not making the application before the appointed day in Decemb?r 1951. It is, however, not necessary to deal with the order of the High Court in this case and we may only note in passing that under rule 421 the following persons shall be qualified for admission as advocates of the High Court :

"Any person whose name is borne on the roll of Advocates or Vakils of the I (sic) grade of any High Court or any authority exercising the powers of a High Court in any of the Covenanting States of Rajasthan and who was entitled to app~ar, act or plead in such Court or authority :

Provided, that if such person not holding the LL.B. or any higher or equivalent degree of any 'university established by law in the Union of India fails to apply by the end of December, 1951, he shall not be enrolled as an Advocate thereafter".

There is an Explanation to this rule as follows :-

"Practice as a Vakil of the 2nd grade under the rules of a High Court or an authority exercising the powers of a High Court in any of the Covenanting States shall be deemed to be a practice as a pleader".

It appears later on the pelitioner applied to the Delhi State Bar Council for enrolment basing his claim under section 24(3) of the· Act. He does not admittedly have a degree in Law from any university. He, therefore, rests his claim under section 24(3)(a) which may be quoted:-

24(3): "Notwithstanding anything contained in sub-section (I) a person who-

(a) has, for atleast three years, been a vakil or a pleader or a mukhtar, or was entitled at any time to be enrolled under any law as an advocate of a High Court (including a High Court of a former Part B State) ...... .

• • * • may be admitted a• an advocate on a State roll ..... , . " Admittedly he does not come under the first part of sub-section (3) (a)> since he is neither a vakil nor a pleader nor a mukhtar. His entire· claim is that he was-. enrolled as. an ·ad.vocate of a High Court in "' former Part B State, riamely, Rajasthan. In ord~r to ,come under the second part, he has not drawn our attention to any law under which he was entitled to be enrolled as an acivocate of the former Part B State of Rajasthan. He entirely relies upon the sanad (Annexure-C). It does not show under what law the sanad was· issued. Besides, the most formidable stumbling-block to his claim is that Thikana Khetri 's not one of the covenanting States of the United State of Rajasthan The White Paper on Indian States does not show Thikana Khetri as one of the covenanting States (see Pages 53-55 of' the White Paper on Indian States; paras 134-138; Appendix XL and Appendix XU at pages 274 and 283; also pages 326-335). Under the Part B States (Laws) Act No. III of 1951, which came into force on !st April 1951. the Legal Practitioners Act No. XVIII of 1879 and the India~ Bar Councils Act No. XXXVIII of 1926 were extended to Part B States. Under section 8(2) of the Bar Council Act. "the High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of-

(a) all persons who were, as advocates vakils

or pleaders, entitled as of right to practise ' in the High Court immediately before the date on which this section comes into force in respect thereof; and

( b) all other persons who have been ad."Ditted to be

advocates of the High Court under this Act :

• • • • Earlier. after the formation of the United State of Rajasthan, ;;o Raj-pramukh promnlgated the Rajasthan High Court Ordinance No. XV of 1949; which came into force on 79th August, 1949. The Ordinanco provided for the esta_blishment of the Rajasthan High Court and abo-lition of all High Courts in the covenanting States. Under section 49 of the Orclinance, on and from the appointed day, namely, 29th August, 1949, "every Tribunal functioning as the High Court of a covenanting State or any authority exercising the powers of a High Court in such State shall cease to exist, and all cases pending before the said High Court or authority at that date shall be transferred to and heard by the High Court constituted by this Ordl.nance, and all the records and documents of the several Courts which so cease to exist, shall become, and be, the records and documents of the High Court".

Th~ pe_titioner had not taken any steps in accordance with la\v tu get himself enrolled under the Bar Council Act or any other Act entitling him for enrolment. He· also did not pursue the l)latter further in that behalf when his applicatfon had been rejected by the High Court under the Ordinance. We are unable to hold that the decision of the Delhi Bar Council is not correct on the materials produced be-fore it for the purpose of the petitioner's enrolment. If the petitioner were actually qualified und~r the law for enrolment as an advocate am! he has been wrongfully refused enrolment by the authorities, the ques-tion of infringement of his fundamental rights under Article 19 (1) (g l would have arisen. This, however, has not happened in this case since the very foundation of his claim is non-existent. The Writ Petition is. therefore, without any merit and is rejected. We will, however, make no order as to costs.

ORIGINAL JURISDICTION : Writ Petition No. 424 of 1971.

Under Art. 32 of the Constitution of India for the enforcement of fundamental rights.

Ch. Rant Sarup and R. A. Gupta, for the petitioner.

N. H. Hingorani, for respondent no. 1.

Hardev Singh, for respondent no. 2.

R. N. Sachthey, for respondent no. 3.

ARGUMENTS

For the petitioner : The petitioner's-ease was fully covered by s. 24(3) of the Advocates' Act as he had practised as Vakil for three years before the coming into force of this Act. He 'Yas all~wed to pra~- tise at Loharu by endorsement upon the sanad by Iilas Thikana Khetr1. By reasQn of this he was entitled to practise in Punjab including the High Court of Punjab. Secondly, the petitioner was entitled to be en-rolled as an advocate under r. 421 of the Rajasthan High Court Rules 1952 but the date mentioned for application for enrolment had expired before the publication of the rules and hence he could not ·apply with\n the time limit prescribed.

For the respondent No. 1 : The petitioner's application to the Delhi Bar Council for enrolment as an Advocate under section 24 of the Advocates Act, 196! was rejected on the ground that the petitioner was not a law graduate and that the court of Ijlas Thikana Khetri where he was enrolled as an advocate was not a High Court. It is con-ceded by him that he is not qualified to be enrolled as an Advocate under section 24( I} of the said Act but contended that Jiis case is covered by section 24 ( 3} as he had practised as a vakil for three years i11 the court of Ijlas Thikana Khetri and was entitled at any time to be e'.lrolled under any law as an Advocate of a High Court of a former Part B State.

Th.e question arises whether Khetri State was one of the covenant-ing states of United State of Rajasthan. The United State of Rajasthan (consisting of 14 covenanting states) came into existence with effect from May 15, 1949 and Thikana Khetri was not one of them.

The Rajasthan High Court Ordinance No. XV of 1949 provided for the establishment of the Rajasthan High Court and abolition of all High Courts in the covenanting States. The Part B States (Law) Act No. III of 1951, provided for extension of the Indian Bar Councils Act, 1926 to Part B States. Under section 8(2) of the Bar Councils Act it was obligatory for the R,ajasthan High Court "to prepare and maintain a roll of Advocates of the High Court in which shall be entered the names of all persons who were as Advocates, Vakils or pleaders entitled as of. right to practise in the High Court before the date on which the section comes foto force in respect thereof" and as the petitioner was not practising or was not entitled lo practise in the High Court of any of the covenanting states his name could not be e~tered on the roll of Advocates under the said section. The Rajasthan High Court Rules 1952 had no application to his case.

The petitioner's alternative argument that by virtue of endorse-ment on his sanad he was entitled to practise in the State of Loharu, which was one of the States merged in East Punjab and in view of its merger he was entitled to practise in Punjab including the High Court cf that state is. without any substance. The petitioner has.not produced anything to show that he was entitled to be enrolled as an Advcx;ate in the State of Loharu and later in the state of East Punjab.

The case of the petitioner is not covered by section 24(3) of the Advocates Act. ·

For the Bar Council of India : Assuming that the impugned decision was erroneous it c.annot amount to infringement of the peti-tioner's fundlamental right under Art. 19(1 )(g} of the Constitution [(1955) 2 S.C.R. 1113; A.LR. 1962 S.C. 1183 and 1971 Supp. S.C.R. 688]. Since Ijlas Thikana Khetri was not a High Court and Khetri was not even a 'State' the sanad relied upon by the petitioner did not give him the status of a vak'il so as to confer a right under s 24(3) of the Advocates Act to entitle him to enrol as an Advocate.