http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: O. N. MOHINDROO

       Vs.

RESPONDENT: THE BAR COUNCIL OF DELHI & ORS.

DATE OF JUDGMENT: 08/01/1968

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. WANCHOO, K.N. (CJ) BACHAWAT, R.S. MITTER, G.K. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  888            1968 SCR  (2) 709  CITATOR INFO :  R          1973 SC 231  (11,14)

ACT: Constitution of India, 1950, Art. 138(1) and (2) Scope of. Advocates Act  (25  of  1961),  s.  38-Right  of  appeal  to Supreme Court given to advocate in disciplinary proceedings- Whether right falls under Entry 77 of List 1 or Entry 26  of List III. Supreme Court  Rules  1966,  O, 5, r. 7-Appeal under  s.  38 Advocates Act, rejected summarily-If rule curtails right  of appeal-Rule, if valid.

HEADNOTE: The  appellant filed a writ. petition in the High Court  for quashing, (a) the order of suspension passed against him  by the  State Bar Council under s.4. 35 of the  Advocates  Act, 1961,  (b) the order of the Bar Council of .India in  appeal under s. 37 of the Act, confirming the order of  suspension, and  (c)  the order of this Court  summarily  rejecting  his appeal  to this Court under s. 38, under O.V., r, 7  of  the Supreme  Court  Rules, 1966.  He contended that  :  (1)  the jurisdiction  conferred on this Court by S. 38 related to  a matter under Entry 26 of List III of the Constitution,  that it  therefore  fell under Art. 138(2), and as there  was  no special  agreement between the Government of India  and  the Government oaf a State as required by Art. 138(2), s. 38 was not validly enacted; and (2) O. 5, r. 7 of the Supreme Court Rules  under  which the appeal was  placed  for  preliminary hearing was ultra vires s. 38, as the rule cut down and  im- paired  the  right of appeal under the  section.   The  writ petition was dismissed.In appeal to this Court, HELD : (1) While Entry 26 of List III deals with the  legal, medical  and  other professions, Entry 77 of List  I,  deals with the constitution, organisation, jurisdiction and powers of  the  Supreme Court, and also with  persons  entitled  to practise before the Supreme Court.  Since there is a seeming conflict between the two entries they have to be  harmonised by  reading the, general power in Entry 26 in  a  restricted sense.  That is, the power to legislate in regard to persons

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

entitled to practise before the Supreme Court under Entry 77 of  List I should be held to be carved out from the  general power  relating to the professions in Entry 26 of List  III, and made the exclusive field of Parliament. [715 E-F, H; 716 A-C] The object of the Advocates Act is to constitute one  common bar  for the whole country and to provide machinery for  its regulated  functioning  Though  the  Act  relates  to  legal practitioners, in its pith and substance it is an  enactment dealing   with  the  qualifications,  enrolment,  right   to practise  and  discipline  of  Advocates.   Since  the   Act provides  that  once a person is enrolled by any  State  Bar Council  he  becomes  entitled to practise  in  all  court-, including  the Supreme Court, the Act is a piece  of  legis- lation dealing with persons entitled to practise before  the Supreme  Court.  Therefore, the Act, including the right  of appeal  to  this  Court under s. 38,  deals  with  a  matter relating  to Entry 77 of List I and falls under Art.  138(1) and  within the exclusive field of Parliament.  The  Act  is not 710 a  composite  legislation partly failing under Entry  77  of List I and partly tinder Entry 26 of List 111.  It does  not fall under Art. 138(2) and a -special agreement with a State Government, is therefore not necessary. [717 E, F-H; 718  A- C] State  of  Bombay v. Balsara, [1951] S.C.R.  682,  State  of Bombay  V.  Narothamdas, [1951] S.C.R. 51 and In re  :  Lily Isabel Thomas, [1964] 6 S.C.R. 229. followed. C.   P.  &  Berar  Sales  of  Motor  Spirit  and  Lubricants Taxation Act, 1938 [1938] F.C.R. 18, Citizens Insurance  Co. of  Canada  v. Parsons, [1881] 7 A.C. 96,  Bhola  Prasad  v. Emperor,  [1942] F.C.R. 17, G. G. in Council v. Province  of Madras, (1945) 72 ].A. 91 and Durgeshwar v. Secretary,  Bai- Council, Allahabad, A.I.R. 1954 All. 728, referred to. (2)  On   the  express  terms  of  Art.  145(1)(b)  of   the Constitution, 7 of O. 5 of the Supreme Court Rules is within the rule-making power of this Court, as it merely lays  down how and in what manner an appeal filed under s. 38 is to  be dealt  with  and does not deal with or affect the  right  of appeal.   The fact that under the rule the appeal is  placed for  preliminary hearing and is liable to be disposed of  at that  stage does not mean that the content of the  right  of appeal  under the section is in any way curtailed,  because, the party filing the appeal is heard on all points raised by him even at that stage. [718 F-M] Prem  Chand  Garg  v. Excise Commissioner,  [1963]  Supp.  1 S.C.R. 885, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 240 of 1967 Appeal  from the judgment and order dated December 22,  1966 of  the Delhi High Court in Letters Patent Appeal No.  1  of 1966. Appellant in person. Avadh Behari, for respondents Nos.  1 and 2. P. Ram Reddy, and A. V. Rangam, for respondent No. 3. Purshottam Trikamdas and 1. N. Shroff, for respondent No. 4. Purshottam Trikamdas and S. P. Nayar, for respondent No. 5. The Judgment of the Court was delivered by Shelat, J. This appeal by certificate raises the question as to ,he scope of entries 77 and 78 in List I and entry 26  in List III of the Seventh Schedule to the Constitution.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

The question arises in the following manner On a complaint by the Subordinate Judge that the  appellant, while   taking  inspection  of  the  Court  record   in   an arbitration  matter pending before his Court, had  mutilated the  copy of a notice in that record by wilfully  tearing  a portion  thereof, the District Judge, Delhi filed  a  report against the appellant before the Delhi 711 State Bar Council for taking action under the Advocates Act, 25  of  1961  (hereinafter referred to  as  the  Act).   The Disciplinary Committee of the said Council after hearing the appellant  found him guilty of professional  misconduct  and ordered  his suspension for one year under s. 35 (3) (c)  of the  Act.   An  appeal filed by the appellant  under  s.  37 before the Bar Council of India failed.  Thereupon he  filed an appeal against the said order under s. 38 in this  Court. The appeal was placed for preliminary hearing and  summarily rejected  at that stage.  The appellant thereafter  filed  a writ petition in the High Court of Punjab (Delhi Bench)  for quashing  the  said order of suspension, the  order  of  the appellate authority confirming the said order and the  order of this Court dismissing the appeal.  He thereafter filed  a review   petition  against  the  dismissal  of  his   appeal contending,  inter alia, that rule 7 of O. 5 of the  Supreme Court  Rules, was ultra vires s. 38 of the Act.  The  review petition also was dismissed. At  the hearing of his writ petition, the  appellant,  inter alia,  contended that s. 38 of the Act was ultra vires  Art. 138(2)  of  the  Constitution  inasmuch  as  the   appellate jurisdiction  conferred  on this Court by s. 38  fell  under entry  26  in  List  III and that  there  being  no  special agreement between the Government of India and the Government of any State as required by clause 2 of Art. 138 sec. 38 was invalidly enacted.  He also contended that O. 5 r. 7 of  the Supreme  Court Rules under which the appeal was  placed  for preliminary  hearing was Ultra vires s. 38 as the said  rule cut  down  and  impaired his right of appeal  under  s.  38. Lastly, he contended that the decision of the Bar Council of India was bad for the several grounds alleged by him in  his writ petition.  The learned Single Judge who heard the  writ petition  rejected these contentions and dismissed  it.   As regards the first contention he held that clause 2 of Art. 1 38  did not apply and that it was clause 1 of  that  Article which was applicable as the subject matter of the  Advocates Act fell under entry 77 of the Union List.  As to the  other two  contentions he held that rule 7 of the O. 5  was  valid and  did not contravene s. 38; that the Bench  before  which the  appeal  came up for preliminary hearing had  heard  the appellant’s   counsel  and  in  addition  had   called   for production  of  a  document desired by him.   There  was  no affidavit by Counsel appearing for him that he was not heard on any point which he desired to contend.  He also held that the  appellant had specifically raised the contention as  to the  vires of the said rule in his review petition and  that that  contention having been rejected, the  appellant  could not  reagitate it in the writ petition.  He also  held  that the  appellant was similarly not entitled to  reagitate  the question  as to the merits of the said order of  suspension. the same having been considered and rejected at the time  of the  preliminary  hearing of his appeal.  Aggrieved  by  the order of the learned Single Judge, 712 the appellant filed a Letters Patent Appeal.  At the hearing of  that  appeal the appellant’s counsel  conceded  that  he could not raise, any contention on the merits of the case in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

view of this Court having disposed of those very contentions and  that therefore he would confine his arguments  only  to the question of the vires of S. 38.  The learned Judges  who heard  that appeal were of the view (1) that the Act  was  a composite piece of legislation. that it did not, as held  by the learned Single Judge, fall exclusively under entries  77 and 78 of List I but that it fell partly under those entries and partly under entry 26 of List 111; (2) that Art. 138 had no  application  as the jurisdiction to  entertain  and  try appeals  under s. 38 was not ’further  jurisdiction’  within the  meaning of that Article; that the jurisdiction to  hear such appeals was already vested in this Court under Art. 136 even without s. 38 as the Bar Councils of Delhi and of India were quasi-judicial tribunals and that therefore this  Court had jurisdiction to entertain and try appeals against  their orders;  and (3) that the only effect of s. 38 was  that  by providing for an appeal Parliament removed the hurdle of  an appellant having to obtain special leave under Art. 136.  On this  reasoning the learned Judges dismissed the  contention as to the vires of s. 38.  Dismissing the appeal the learned Judges observed :               "There is no bar to the Parliament legislating               with respect to jurisdiction and powers of the               Supreme   Court   subject   to   the   express               provisions of the Constitution like Arts.  132               and  134.  When a provision for appeal to  the               Supreme  Court  is made in a  statute,  within               -the sphere covered by Arts. 132 to 136 it  is               not   conferment   of   further   power    and               jurisdiction  as envisaged by Art.  138,  such               power would be exercisable by reason of  entry               77 of List I". In  this appeal the appellant challenges the correctness  of this view. The question which falls for consideration is one of  inter- pretation  of  entries 77 and 78 of List I and entry  26  of List  111.   If it is held that it is entry 26 of  List  III under which the Act was enacted, clause 2 of Art. 138  would apply  and in that case a special agreement with  the  State Government becomes a condition precedent to the enactment of s.  38 of the Act.  In that case the difficulty would be  to reconcile  entries 77 and 78 of List I with entry 26 of  the List III. It is a well recognised rule of construction that the  Court while  construing entries must assume that the  distribution of legislative powers in the three Lists could not have been intended  to  he in conflict with one  another.   A  general power ought not to                             713 be  so construed as to make a nullity of a particular  power conferred  by the same instrument and operating in the  same field when by reading the former in a more restricted sense, effect  can  be  given to the latter  in  its  ordinary  and natural  meaning.   It  is,  therefore,  right  to  consider whether  a fair reconciliation cannot be effected by  giving to  the language of an entry in one List the meaning  which, if  less wide than it might in another context bear, is  yet one  that can properly be given to it and equally giving  to the  language  of another entry in another  List  a  meaning which  it  can  properly bear.  Where  there  is  a  seeming conflict between one entry in one List and another entry  in another  List, an attempt should always be made to avoid  to see whether the two entries can be harmonised to avoid  such a  conflict  of jurisdiction. (C.P. & Berar Sales  of  Motor Spirit  and  Lubricants  Taxation  Act,  1938(1);   Citizens

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

Insurance  Company of Canada v. Parsons (2) Bhola Prasad  v. Emperor(3);  Governor  General  in Council  v.  Province  of Madras(4), and State of Bombay v. Balsara(5). It is in the background of these principles of  construction that  we must proceed to examine the content of the  various relevant   entries   dealing  with  the   constitution   and Organisation of courts and their jurisdiction and powers and the scheme envisaged thereunder.  Entries 77 and 78 of  List I read as under :-               "77.  Constitution, Organisation, jurisdiction               and  powers  of the Supreme  Court  (including               contempt  of such Court) ... persons  entitled               to practise before the Supreme Court."               "78.  Constitution and Organisation (including               vacations)  of the High Courts ...  ;  persons               entitled to practice before the High Courts."               Entry 95 of List I reads as follows               "95.   Jurisdiction and powers of all  courts,               except the Supreme Court, with respect to  any               of   the  matters  in  this  List;   admiralty               jurisdiction."               Entry 65 of List II reads               "65.   Jurisdiction and powers of all  courts,               except the Supreme Court, with respect to  any               of the matters in this List."               Entry 46 in List III reads               "46.   Jurisdiction and powers of all  courts,               except the Supreme Court, with respect to  any               of the matters in this List." (1)  [1938] F.C.R. 18.                        (2)  [1881]  7 A.C. 96. (3) [1942] F.C.R. 17.                          (4) (1945] 72 I.A. 91. (5)[1951] S.C.R. 68’-). 714 The scheme for conferring jurisdiction and powers on  courts is  (a)  to avoid duplication of Courts, Federal  and  State Courts as. in the Constitution of the United States, (b)  to enable  Parliament  and  the State  Legislatures  to  confer jurisdiction  on  courts  in respect  of  matters  in  their respective  lists  except in the case of the  Supreme  Court where  the legislative authority to confer jurisdiction  and powers is exclusively vested in Parliament.  In the case  of the  Concurrent  List  both  the  legislatures  can   confer jurisdiction  and  powers  on courts except  of  course  the Supreme  Court depending upon whether the Act is enacted  by one  or the other.  Entry 3 in List 11  confers  legislative powers  on  the States in the matter of  "Administration  of Justice; constitution and organisation of all courts, except the Supreme Court and the High Courts; officers and servants of  the  High Court; procedure in rent and  revenue  courts; fees  taken in all courts except the Supreme Court."  It  is clear that except for the constitution and the  Organisation of  the  Supreme Court and the High Courts  the  legislative power  in the matter of administration of justice  has  been vested  in the State Legislatures.  The  State  Legislatures can,  therefore enact laws, providing for  the  constitution and organisation of courts except the Supreme Court and  the High  Courts and confer jurisdiction and powers on  them  in all  matters,  civil  and  criminal,  except  the  admiralty jurisdiction.  It would, of course, be open to Parliament to bar the jurisdiction of any such court by special  enactment in  matters provided in Lists I and III where it has made  a law  but so long as that is not done the courts  established by the State Legislatures would have jurisdiction to try all

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

suits  and proceedings relating even to matters in  Lists  I and 111.  Thus, so far as the constitution and  organisation of the Supreme Court and the High Courts are concerned,  the power  is  with Parliament.  As regards  the  other  courts, Entry  3  of  List  11 confers such a  power  on  the  State Legislatures.   As  regards jurisdiction and powers,  it  is Parliament  which can deal with the jurisdiction and  powers of  the  Supreme  Court  and  the  admiralty   jurisdiction. Parliament can confer jurisdiction and powers on all  courts in  matters  set  out in List I and List III  where  it  has passed  any  laws.  But under the power given  to  it  under entry  3  in  List  11,  a  State  Legislature  can   confer jurisdiction  and  powers on any of the  courts  except  the Supreme  Court in respect of any statute whether enacted  by it or by Parliament except where a Central Act dealing  with matters  in Lists I and II otherwise, provides.  That  these entries  contemplate such a scheme was brought out in  State of Bombay v. Narothamdas(1), where it was contended that the Bombay  City Civil Court Act, 40 of 1948,  constituting  the said Civil Court as an additional court was ultra vires  the Provincial Legislature as it conferred jurisdic- (1)  [1951] S.C.R. 51. 715 tion on the new court not only in respect of matters in List 11  of the Seventh Schedule of the Government of India  Act, 1935  but  also  in  regard to matters in  List  I  such  as promissory  notes  in  item  8  of  List  I,  Rejecting  the contention it was held that the impugned Act was a law  with respect to a matter enumerated in List 11 and was not  ultra vires  as  the power of the Provincial Legislature  to  make laws   with   respect   to   "administration   of   justice" and  ."constitution  and Organisation of all  courts"  under item  1 of List II was wide enough to include the  power  to make  laws  with  regard  to  the  jurisdiction  of   courts established  by the Provincial Legislature; that the  object of item 53 of List I, item 2 of List 11 and item 15 of  List III  was  to  confer  such powers on  the  Central  and  the Provincial  Legislatures  to  make  laws  relating  to   the jurisdiction  of  courts  with  respect  to  the  particular matters  that are referred to in List I and II  respectively and  the Concurrent List, and that these provisions did  not in  any way curtail the power of the Provincial  Legislature under  item  1  of  List 11 to  make  laws  with  regard  to jurisdiction of courts and to confer jurisdiction on  courts established  by  it  to try all causes  of  a  civil  nature subject  to the power of the Central and  Provincial  Legis- latures  to make special provisions relating  to  particular subject,,.  referred to in the Lists.  It may  be  mentioned that  item 53 in ,List 1, items 1 and 2 in List 11 and  item 15 in List III in the Seventh Schedule to the 1935 Act  more or  less  correspond  to entries 77, 78 and 95  in  List  1, entries 3 and 65 in List 11 and entry 46 in List III of  the Seventh Schedule to the Constitution. This  being the scheme with regard to the  constitution  and Organisation of courts and their jurisdiction and powers let us next proceed to examine entry 26 in List III.  Entry  26, which  is  analogous to Item 16 in List III of  the  Seventh Schedule  to  the 1935 Act, deals with  legal,  medical  and other professions but is not concerned with the constitution and Organisation of courts or their jurisdiction and powers. These,  as already stated, are dealt with by entries 77,  78 and  95 in List 1, entries 3 and 65 in List II and entry  46 in  List III Enactments such as the Indian  Medical  Council Act,  1956,  the  Indian  Nursing  Council  Act,  1947,  the Dentists Act, 1948, the Chartered Accountants Act, 1949  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

the  Pharmacy Act, 1948, all Central Acts, would fall  under the  power to deal with professions under entry 26  of  List III in the Seventh Schedule to the Constitution and item  16 of List III of 1935 Act.  It will, however, be noticed  that entries  77 and 78 in List I are composite entries and  deal not  only  with  the constitution and  Organisation  of  the Supreme Court and the High Courts but also with persons  en- titled  to  practise before the Supreme Court and  the  High Courts.   The only difference between these two  entries  is that  whereas  the jurisdiction and powers  of  the  Supreme Court are dealt with in 716 entry 77, the jurisdiction and powers of the High Courts are dealt  with not by entry 78 of List I but by other  entries. Entries  77  and 78 in List I apart from  dealing  with  the constitution  and Organisation of the Supreme Court and  the High  Courts  also deal with persons  entitled  to  practise before the Supreme Court and the High Courts.  This part  of the  two entries shows. that to the extent that the  persons entitled  to practise before the Supreme Court and the  High Court  are  concerned, the power to legislate in  regard  to them  is carved out from the general power relating  to  the professions  in  entry  26  in List  III  and  is  made  the exclusive  field for Parliament.  The power to legislate  in regard  to persons entitled to practise before  the  Supreme Court and the High Courts is thus excluded from entry 26  in List III and is made the exclusive field for legislation  by Parliament  only  [Re  :  Lily  Isabel  Thomas(l)  and  also Durgeshwar  v.  Secretary,  Bar Council, Allahabad  2  )  ]. Barring those entitled to practise in the Supreme Court  and the High Courts, the power to legislate with respect to  the rest  of the practitioners would still seem to  be  retained under  entry  26 of List III.  To what extent the  power  to legislate  in regard to the legal profession  still  remains within the field of entry 26 is not the question at  present before us and therefore it is not necessary to go into it in this appeal. The  Advocates Act was passed to amend and  consolidate  the law  relating to legal practitioners and to provide for  the constitution of Bar Councils and an All-India Bar.   Section 2(a)   and   (i)   define  an  ’advocate’   and   a   ’legal practitioner’.   Chapter II deals with the establishment  of Bar Councils and their functions, viz., to admit persons  on its  roll, to prepare and maintain such roll,  to  entertain and  determine cases of misconduct against advocates on  its roll  etc.   Section 7 lays down the functions  of  the  Bar Council of India, that is, to prepare and maintain a  common roll of advocates, to lay down the standard% of professional conduct and etiquette, to lay down procedure to be  followed by its disciplinary committee and the disciplinary committee of  each State Bar Council, to exercise general  supervision and control over State Bar Councils etc.  Chapter III  deals with  admission and enrolment of advocates.   Section  16(1) provides  that  there  shall be two  classes  of  advocates, senior advocates and other advocates.  Chapter IV deals with the right,to practise.  Section 29 provides that subject  to the  provisions of this Act and the rules  made  thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law,  namely, the  advocates.   Section 30 provides that  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 terri- (1) [1964] 6 S.C.R. 229,236. (2) A.I.R. 1954 All. 728.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

717 tories to which this Act extends in all courts including the Supreme Court and before any tribunal or any other authority before  whom  such advocate is by or under any law  for  the time  being in force entitled to practise.  Chapter V  deals with  the conduct of advocates.  Section 35 lays  down  that where  on  receipt of a complaint or otherwise a  State  Bar Council has reason to believe that any advocate on its  roll has  been  guilty of professional or  other  misconduct,  it shall  refer  the  case for  disposal  to  its  disciplinary committee.  The disciplinary committee has to fix a date for the  hearing  of the case and give a notice thereof  to  the advocate concerned and to the Advocate General of the State. Subs.  (3)  provides that such committee  after  giving  the advocate  concerned and the Advocate General an  opportunity of  being heard, may make, inter alia, an  order  suspending the  advocate  from practice as it may  deem  fit.   Similar powers are also conferred on the Bar Council of India  under s.  36  in  relation  to an advocate  on  the  common  roll. Section  37  gives a right of appeal to the Bar  Council  of India   by  any  person  aggrieved  by  an  order   of   the disciplinary  committee of a State Bar Council.  Section  38 confers a right of appeal to the Supreme Court on any person aggrieved  by an order by the disciplinary committee of  the Bar  Council of India under s. 36 or s. 37 and empowers  the Supreme Court to pass such orders thereon as it deems fit. The  object of the Act is thus to constitute one common  Bar for  the  whole  country and to provide  machinery  for  its regulated  functioning.   Since  the Act sets  up  one  Bar, autonomous  in  its  character,  the  Bar  Councils  set  up thereunder  have been entrusted with the power  to  regulate the  working  of the profession and to  prescribe  rules  of professional conduct and etiquette, and the power to  punish those  who  commit  breach  of such  rules.   The  power  of punishment  is  entrusted  to  the  disciplinary  committees ensuring a trial of an advocate by his peers.  Sections  35, 36  and  37 lay down the procedure  for  trying  complaints, punishment  and an appeal to the Bar Council of  India  from the  orders  passed  by  the  State  Bar  Councils.   As  an additional  remedy  s. 38 provides a further appeal  to  the Supreme  Court.   Though  the  Act  relates  to  the   legal practitioners, in its pith and substance it is an  enactment which  concerns itself with the  qualifications,  enrolment, right  to  practise  and discipline of  the  advocates.   As provided by the Act once a person is enrolled by any one  of the  State Bar Councils, he becomes entitled to practise  in all  courts including the Supreme Court.  As aforesaid,  the Act  creates  one common Bar, all its members being  of  one class,  namely,  advocates.  Since all those who  have  been enrolled  have a right to practise in the Supreme Court  and the  High  Courts, the Act is a piece of  legislation  which deals  with persons entitled to practise before the  Supreme Court and the High Courts.  There L3 Sup.CI/68-2 718 fore  the Act must be held to fall within entries 77 and  78 of  List I. As the power of legislation, relating  to  those entitled  to  practise  in the Supreme Court  and  the  High Courts is carved out from the general power to legislate  in relation to legal and other professions in entry 26 of  List 111, it is an error to say, as the High Court did, that  the Act is a composite legislation partly falling under  entries 77 and 78 of List I and partly under entry 26 of List 111. In this view, the right of appeal to this Court under s.  38 of the Act creates a jurisdiction and power in relation to a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

matter failing under entries 77 and 78 of the Union List and the Act would, therefore, fall under clause I and not clause 2  of  Art. 138.  The argument that s. 38 falls  under  Art. 138(2) and is invalid on account of its having been  enacted without  a special agreement with the State  Government  is, therefore, without merit. As regards the validity of rule 7 of O. 5 the contention, as already  pointed  out, was raised and rejected in  the  said review  petition  filed by the  appellant.   The  contention having thus been concluded could not obviously be raised  in the  writ petition filed by the appellant, nor would  he  be entitled to any writ or order from the High Court as against the said decision.  The rule, in any event, merely  provides for  the  placing  of an. appeal filed under  S.  38  for  a preliminary  hearing  and enables this Court to  dismiss  at that  stage an appeal if it finds it has no substance.   The appellant  in  such an appeal is heard; if the  court  finds that  there is nothing in the appeal, the court declines  to issue notice on the opposite side and disposes of the appeal there  and then.  Section 38 confers no doubt a right of  an appeal on a person aggrieved by an order passed under ss. 36 and 37 and the appellant does not have to obtain any special leave  under Art. 136.  But the fact that under rule  7  the appeal is placed for preliminary hearing and is liable to be disposed of at that stage does not mean that the content  of the  right of appeal under s. 38 is in any way curtailed  as the  party filing the appeal has to be heard on  all  points raised by him therein.  There is, therefore, no substance in the argument that rule 7 contravenes s. 38, and is therefore ultra  vires  the  section.  On the express  terms  of  Art. 145(1) (b), the rule is within the rule-making power of this Court  as  it  merely lays down how and in  what  manner  an appeal  filed under s. 38 is to be dealt with and  does  not deal  with or affect the right of appeal.  The  validity  of the  rule cannot, therefore, be impeached.  The decision  in Prem  Chand Carg v. Exercise Commissioner (1) cannot  assist the appellant.  In that decision rule 12 (1)  [1963] Supp.  1 S.C.R. 885. 719 of  O. xxxv of the Supreme Court Rules was declared void  in so  far as it related to the furnishing of security  on  the ground that the right to move the, Supreme Court under  Art. 32 was absolute and the rule by providing security for costs impaired such an absolute right.  Furnishing of security  in the  case of persons without means to do so would  obviously obstruct  such persons from vindicating their  rights  under Art.  32 and would, therefore, curtail the right under  that Article.   That obviously is not so in the case of the  rule with which we are concerned in this appeal.  The contention, therefore, that rule 7 curtails the right of appeal under s. 38 or contravenes that section must be rejected. The  appellant cited a number of authorities but it  is  not necessary  to deal with them as they have no bearing on  the questions  before  us.   He  also  tried  to  question   the correctness  of  the  order passed against him  by  the  Bar Council of India but we did not allow him to reagitate it as it  stood concluded on the dismissal of the appeal  and  the review petition filed by him in this Court. The appeal fails and is dismissed with costs.  V.P.S. Appeal dismissed. 720