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PETITIONER: SURAJMAL SUROLIA

       Vs.

RESPONDENT: THE BAR COUNCIL OF INDIA & OTHERS

DATE OF JUDGMENT28/03/1974

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. RAY, A.N. (CJ) REDDY, P. JAGANMOHAN SARKARIA, RANJIT SINGH

CITATION:  1974 AIR 1212            1974 SCR  (3) 808  1974 SCC  (4) 635

ACT: Advocates  Act  1961,  (25  of  1961)--Sanad  granted  by  a princely  State which was not a covenanting state--Sanad did not show under what law it was issued--If entitled to  enrol as an advocate under the Act.

HEADNOTE: The  petitioner was granted a Sanad by Ijlas Thikana  Khetri which  was  the highest court in. a native  state.   On  the basis  of  the  Sanad the petitioner  practiced  in  another native  State for some years and later joined  service.   In 1955 his application for recommencing practice was  rejected by the High Court of Rajasthan on account of his not  making an  application before the appointed day in December,  1951. Later the petitioner applied to the Delhi State Bar  Council for enrollment under s. 24(3) of the Advocates Act which was rejected.   Sub-section 3 to section 24 says that  a  person who  has for at least 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 as  an advocate on a State roll. Dismissing the appeal. HELD  : On the material placed before the Delhi Bar  Council for  the purpose of the petitioner’s enrolment it could  not be held that the decision of the Bar Council was  incorrect. If the petitioner were actually qualified under the Act  for enrolment  as  an advocate and had been  wrongfully  refused enrolment by the authorities the question of infringement of his  fundamental  rights under Article 19(1)(g)  would  have arisen. [912 D-E] Admittedly the petitioner did not come under the first  part of sub-section 3(a) of section 24 of the Advocate Act  since he  was  neither a vakil nor a pleader nor a  mukhtar.   The Sanad on which he relied upon did not show under what law it was  issued.   Further, Thikana Khetri was not  one  of  the covenanting States of the United State of Rajasthan. [811 E] The  petitioner had not taken any steps in  accordance  with the law to get himself enrolled under the Bar Council Act or any other Act entitling him for enrolment; nor did he pursue

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the  matter further in that behalf when his application  had been rejected by the High Court under s. 49 of the Rajasthan High Court Ordinance (15 of 1949) [812 D]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 424 of 1971. Under  Art.  32  of  the  Constitution  of  India  for   the enforcement of fundamental rights. Ch.  Ram 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 case 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 was allowed to practise at Loharu  by  endorsement upon  the sanad by Ijlas Thikana Khetri.  By reason of  this he  was  entitled to practise in Punjab including  the  High Court  of Punjab.  Secondly, the petitioner was entitled  to be  enrolled  as an advocate under r. 421 of  the  Rajasthan High Court Rules 809 1952  but the date mentioned for application  for  enrolment had expired before the publication of the rules and hence he could not apply within 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, 1961 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 conceded  by  him that he is not qualified to be enrolled as an Advocate under section  24(1) of the, said Act but contended that his  case is  covered by section 24(3) as he had practised as a  vakil for three years in the court of Ijlas Thikana Khetri and was entitled  at  any time to be enrolled under any  law  as  an Advocate of a High Court of a former Part B State. The  question  arises whether Khetri State was  one  of  the covenanting 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. 111  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 Rajasthan 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  into force in respect thereof"  and  as  the petitioner  was  not  practising  or  was  not  entitled  to practise in the High Court of any of the covenanting  states his name could not be entered 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 endorsement on his sanad he was entitled to practise in  the State of Loharu, which was one of the States merged in  East

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Punjab and in view of its merger he was entitled to practise in Punjab including the High Court of that state is  without any substance.  The petitioner has not produced anything  to show  that he was entitled to be enrolled as an Advocate  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 cannot amount to infringement  of the  petitioner’s fundamental right under Art.  19(1)(g)  of the  Constitution  [(1955) 2 S.C.R. 1113; A.I.R.  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 vakil so as to confer a right under  s. 24(3)  of  the Advocates Act to entitle him to enrol  as  an Advocate. 810 The Judgment of the Court was delivered by Goswami,  J.  This  writ petition under Article  32  of  the Constitution is directed against an order passed by the  Bar Council  of  Delhi refusing 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  respectively.  The third, respondent  is  the-, Union  of India in the Ministry of Law since the  petitioner takes an additional ground that section 26 (2) of the Act is in conflict 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  be was granted sanad by the highest court  Ijlas Thikana  Khetri  on  22nd November,  1936.   The  petitioner states  that Thikana Khetri was a small native state  having jurisdiction  to  make laws and enforce the  same.   On  the basis  of  that  sanad the petitioner  started  practice  at Loharu,  another  native  state, in 1944  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  discontinuance  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  telegram.   The  petitioner’s sanad  (Annexure-C)  which bears the seal of  Ijlas  Thikana Khetri  dated  22nd November, 1936, is signed  by  one  Hari Prasad,  Secretary, Ijlas Thikana Khetri and shows that  "he has  been enrolled as a vakil and authorised to practise  in all  the  Civil.  Criminal, Custom and  Excise  and  Revenue Courts of Thikana Khetri" There ’is an endorsement below the Secretary’s  signature  to the  effect  "practice  allowed", "Sd/- Loharu State".  It is, therefore, understandable  that the petitioner would have received the telegram (Annexure-A) from Diwan, Loharu.  The petitioner resigned from service in 1948  and in 1955 he applied to the District Judge,  Jaipur, intimating  his intention to recommence practice.   But  his application  was  rejected by the Rajasthan  High  Court  on September  10, 1955.  The petitioner further states  in  his petition that his application was rejected by the High Court under  rule 421 of the Rajasthan High Court Rules, 1952,  on account  ,of  his  not making  the  application  before  the

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appointed  day  in  December  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 1 (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 appear, act or plead in such Court               or authority:               811               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 petitioner 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               subsection (1) 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 as 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  advocate  of  a High Court in a  former  Part  B  State, namely, Rajasthan.  In order to come under the second  part, he has not drawn our attention to any law under which be was entitled to be enrolled as an advocate 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, is 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  XLI at pages 274 and 283; also pages 326-335).  Under the Part B States (Laws) Act No. 111 of 1951, which came into force  on 1st  April,. 1951, the Legal Practitioners Act No. XVIII  of 1879  and  the Indian 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-

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             (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               812               (b)   all other persons who have been admitted               to  be advocates of the High Court under  this               Act Earlier,  after  the  formation  of  the  United  State   of Rajasthan,  Its  Rajpramukh promulgated the  Rajasthan  High Court  Ordinance  No. XV of 1949; which came into  force  on 29th   August,  1949.   The  Ordinance  provided   for   the establishment  of the Rajasthan High Court and abolition  of all High Courts in the covenanting States.  Under section 49 of  the  Ordinance, 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  Curt constituted by this Ordinance, 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". The  petitioner had not taken any steps in  accordance  with law  to .get himself enrolled under the Bar Council  Act  or any other Act entitling him for enrolment.  He also did  not pursue   the  matter  further  in  that  behalf   when   his application  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 before it for the purpose of the petitioner’s enrolment.  If the  petitioner  were actually qualified under the  law  for enrolment as an advocate and he has been wrongfully  refused enrolment  by the authorities, the question of  infringement of  his  fundamental rights under Article 19 (1)  (g)  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. P.B.R. Petition dismissed. 813