# CHANDRA PRAKASH AGARWAL v. CIDrrURBHUJ DAS PARIKH & ORS

- **Citation:** [1970] 3 S.C.R. 354
- **Court:** Supreme Court of India
- **Decided:** 1969-12-18
- **Case number:** Civil Appeal No. 2331 of 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandra-prakash-agarwal-v-cidrrurbhuj-das-parikh-ors-4999
- **Pages:** 6

## Headnote

354
CHANDRA PRAKASH AGARWAL
v.
CIDrrURBHUJ DAS PARIKH & ORS,
December 18, 1969
(S. K. SIKRI, J. M. SHELAT, V. 'BHARGAVA, G. K. MITTER
AND
B
C. A. VAIDIALINGAM, JJ.J
Constitution of India, 1950, Art. 2l7(2)(b)-"Atlvoccte of a High
Court", meaning of Art. 124(3) and 233(2)-Legal Practitioners Act,
1891-Bar Councils Act, 1926.
The appointment of the respondent as a Judge of the High Court was
C
challenged on the ground that though he was enroUed as an advocate
n1ore than twenty years ago he could not claim to be one who "has for
at least ten years been an advocate of a High Court" as he was all alo11g
practicing in the Muflasi/ and not in the High Court.
HELD : The expression "an Advocate of a High Court" in
Art.
217(2)(b) mean an advocate on the roll of a High Court and entitled
as of right by that reason to practice in the High Court. There is nothing
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in the Article to indicate that an Advocate Of a High Court can only be
that· advocate who has been prac:ising in the High Court. [358 HJ
Senga/ani Gramani v. Subayya Nadar,
A.LR. 1967 Mad. 344
aod
V. G. Row v. Alogiriswamy, A.LR. 1967 Mad. 347, referred to.

## Text

354
CHANDRA PRAKASH AGARWAL
v.
CIDrrURBHUJ DAS PARIKH & ORS,
December 18, 1969
(S. K. SIKRI, J. M. SHELAT, V. 'BHARGAVA, G. K. MITTER
AND
B
C. A. VAIDIALINGAM, JJ.J
Constitution of India, 1950, Art. 2l7(2)(b)-"Atlvoccte of a High
Court", meaning of Art. 124(3) and 233(2)-Legal Practitioners Act,
1891-Bar Councils Act, 1926.
The appointment of the respondent as a Judge of the High Court was
C
challenged on the ground that though he was enroUed as an advocate
n1ore than twenty years ago he could not claim to be one who "has for
at least ten years been an advocate of a High Court" as he was all alo11g
practicing in the Muflasi/ and not in the High Court.
HELD : The expression "an Advocate of a High Court" in
Art.
217(2)(b) mean an advocate on the roll of a High Court and entitled
as of right by that reason to practice in the High Court. There is nothing
D
in the Article to indicate that an Advocate Of a High Court can only be
that· advocate who has been prac:ising in the High Court. [358 HJ
Senga/ani Gramani v. Subayya Nadar,
A.LR. 1967 Mad. 344
aod
V. G. Row v. Alogiriswamy, A.LR. 1967 Mad. 347, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2331
of 1968.
E
Appeal from the judgment and order dated July 24, 1968 of
the Allahabad High Court in Civil Misc. Writ No.
14433 of
1968.
M. P. Baipai, S. M.
Jain
and G.
M.
Wantoo, for the. F
appellant.
0. P. Rana, for respondents Nos. 1, 2 and 5.
I. N. Shroff, for respondent No. 3.
L. M. Singhvi and S. P. Nayar, for respondent No. 4.
The Judgment of the Couri was delivered by
Shelat, J. 1 he appellant filed a writ petition in the High Court
at A11:thabad for a quo warranto against respondent 1, challenging
therein his appointment as a Judge of that High Court.
The
ground on which he challenged the appointment was that though
respondent 1 was enrolled as an advocate more than 20 years ago
he could not still claim to be one who "has for at least ten. year~
been an advocate of a High Court" within the meaning of Art.
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355
217(2)(b) of the Constitution, as admittedly respondent 1 was all
along practising at Benaras and not in ihe High Court.
The writ.petition came up for a preliminary hearing before W.
Broome and G. Kumar, JJ., when it was urged that the expression "an advocate of a High Court" in Art. 217(2)(b) meant an
advocate practising in the High Court and not one practising in a
court or courts subordinate to the High Court.
In support of that
interpretation, the language used in Art. 124(3} on the one hand
and that in Art. 233(2) on the other was relied on to show that
the Constitution has e!llployed different language in connection
with different purposes thereby making a deliberate distinction between "an advocate" and "an advocate of a High Court", the former
meaning an advocate practising in a court or courts subordinate
to the High Court and the latter meaning an advocate practising
in a High Court.
The con:ention was that while dealing with the
qualifications for the post of a district judge Art. 233 (2) uses the
expression "an advocate" as distinguished from the expression
"advocate of a High Court" in Arts. 217(2)(b) and 124(3) which
lay down the qualifications for the offices of a Judge of a High
Court and a Judge of the Supreme Court.
The difference in the
language, .it was contended, indicated that whereas a person to be
appointed a district judge need be only an advocate of the prescribed standing, the one to be appointed a Judge either of a High
Court or the Supreme Court must be an advocate who has practised for the required number of years in a High Court or two or
more· High Courts iii succession.
It was further contended that
such an indic~tion is also furnished by the language of Art. 124(3)
(a) and (b), in the sense that just as the expression "a judge of a
High Court" in sub-cl. (a) must mean a Judge who has worked as
a Judge in the High Court, the expression "an advocate of a High
Court" must similarly mean an advocate who has practised in a
High Court.
Tl!ere was a difference of opinion between the two learned
Judges, Broome, J. held that "on a plain reading of the relevant
clauses" the correct interpretation of the expression "an advocate
of a High Court" meant an advocate enrolled as an advocate of a
High Court, irrespective of whether on such enrolment he practised in a High Court or a court or courts subordinate to the High
Court. G. Kumar, J., on the other hand, accepted the contention urged on behalf of the appellant and held that the expression
"an advocate of a High Court" meant one who has practised for
the required period in a High Court, and therefore, a person who
has practised only in a court or courts .subordinate to the High
Court would not answer the qualification required under. Art.
217(2)(b) .. ·Such a difference of opinion having thus arisen between the two learned Judges, the matter was referred to Mathur,
356
SUPREME COURT REPORTS
[1970]3 S.C.ll.
J., who agreed with Broome J., and thereupon the writ petition
was dismissed.
The present appeal on certificate granted by the
High Court challenges the correctness of the order dismissing the
writ petition.
Counsel for the appellant repeated before us the same contentions which were urged first before Broome and Kumar, JJ., and
later on before Matllur, J.
In our opinion the language used in
Art. 217(2) (b) is plain and incapable of bearing an interpretation other than the one given by Broome. J., and agreeing with him
by Mathur, J.
One broad point against the interpretation sought by counsel
for the appellant would be that the expression "an advocate of a
High Court" in its ordinary plain meaning must mean a person
who has by enrolling himself under the relevant provisions of Jaw
become an advocate of a High Court. If it was intended that the
qualification under Art. 217(2)(b) should be that a person appoint-·
ed to the office of a Judge of a High Court should have practised in a High Court and that practising in a court or courts
subordinate to it would not answer the qualification, the language
used in sub-cl. (b) of Art. 217(2) would have been as follows:
"A person shall not be qualified for appointment as
a Judge of a High Court unless he has for 'at least ten
years practised as an advocate in a High Court or in two
or more such Courts in succession".
Apart from this aspect, some of the earlier statutes bearing
on the same subject have also used the very same or similar
expression.
The Legal Practitioners Act, 1879 defined bys. 3 a
"legal practitioner"' as meaning an Advocate, Vakil or Attorney
of any High Court, a Pleader, Mukhtar or Revenue-agent.
Sec.
4 of that Act provided :
"Every person now or hereafter entered as an Advocate or Vakil on the roll of any High Court under the
Letters Patent constituting such Court, or under section
41 of this Act, or enrolled as a pleader in the Chief
Court of the Punjab under section 8 of this Act, shall
be entitled to practise in all the Courts subordinate to
the Court on the roll of which he is entered-and any
person so entered who ordinarily practises in the Court
on the roll of which he is entered or some Court subor- .
dinate thereto shall, notwithstanding anything herein
contained, be entitled, as such, to practise in any Court
in the territories to which this Act extends other than
a High Court on whose roll he is not entered, or, with
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C. P. AGARWAL v, c. D. PARIKH (She/at, J.)
357
the permission of the Court-in any High Court on
whose roll he is not entered-."
Sec. 41 of the Act empowered a High Court to make rules as to
the qualifications and admission of proper persons to be "Advocates of the Court" and subject to such rules to enrol such: and
so many Advocates as it thought fit.
These provisions clearly
show that advocates enrolled under s. 41 were enrolled as advocates of a High Court and were entitled, once enrolled, to practise either in the High Court or courts subordinate to such High
Court or both.
There was thus in the case of advocates so enrolled no distinction between those who practiced in the High
Court and those who practiced in the courts subordinate ,to such
High Court as they were entitled on enrolment, as aforesaid, to
practise either in the High Court or in a court or courts subordinate thereto or both.
The Indian Bar Councils Act, XXXVill
of 1926 also defined an 'advocate' meaning one "entered in the
roll of advocates of a High Court under the provisions of this
Act." Section 8 laid down that no person would be entitled as of
right to practise in any High Court unless his name was entered
in the roll of "the advocates of the High Court maintained under
this Act." Under s. 8(2), the High Court was required to prepare and maintain "a roll of advocates of the High Court" in
which should 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 immedi11tely before the date on which this
section came into force in respect thereof; and (b) all other persons
who were admitted to be "advocates of the High Court" under
this Act. Section 9 empowered the Bar Council to make rules to
regulate the admission of persons to be "advocates of the High
Court'', and s. l 0 gave po'Yer to the High Court in the manner
therein provided to reprimand, ·suspend or remove from practice
"any advocate of the High Court" whom it found guilty of professional or other misconduct. Section 14(1) of the Act provided
that an advocate, i.e., one whose name was entered under this
Act in the roll of advocates of a High Court, shall be entitled as
of right to practise in the High Court of which he is an advocate
or in any other court save as otherwise provided by sub-s. 2 or
by or under any other law for the time being in force.
Once,
therefore, the name of an advocate was entered in the roll of
advocates of a High Court under one or the other Act, he was
entitled to practise in the High Court and in courts subordinate
thereto or in any court subject of course to the provisions aforesaid. He was thus an advocate of the High Court irrespective of
whether he practiced in the High Court or in the courts subordinate thereio, and as seen from s. 10 of the Bar Councils Act, he
became amenable to the disciplinary jurisdiction of the High Court
by reason of his being enrolled as an advocate of the High Court.
L7Sur; Cl((NP)7C-S
358
SUPREME COURT REPORTS
[l 970) 3 S.C.R.
The expression "an advocate of a High Court" must, therefore.
mean, in the light of these provisions, an advocate whose name
has been enrolled as an advocate of a High Court, no matter
whether he practised in the High Court itself or in courts subordinate to it or both.
The expression "an advocate or a pleader of a
High Court" having thus acquired the meaning as aforesaid. it
must be presumed that a similar expression, namely "a pleader
of a High Court for a period of not less than ten years" was used
in the same sense ins. 101(3)(d) of the Government of India Act,
1915, when that section laid down the qualifications for the office
of a Judge of a High Court in the c~se of a pleader.
The same
phraseology was also repeat~:'. in s. 220(3)(d) of the Government
of India Act, 1935, cxcep~ for one change, namely, that in calculating I 0 years' standing, his standing as a pleader of 2 or more
High Courts in succession was also to be included.
It will be noticed that in the latter: part of sub-s. 3 of s. 220,
which provided that in calculating the period during which a person
had been a pleader, the period during which he had held judicial
office after he became a pleader shall be included, the expression
used is simply a "pleader" and not a pleader of any High Court.
But the word "pleader" in this part of s. 22Q(3) must obviously
mean the same person as "the pleader of any High Court" mentioned earlier in the same sub-section because the period during
which he helq any judicial office was to be reckoned for his standing of ten years as a pleader of a High Court.
This clearly
high-lights the point that what s. 220(3) in the 1935 Act required
as a qualification was that a person to be appointed a Judge of a
High Court had to have ten years' standing as a pleader of any
High Court, which meant that he must have been enrolled as a
pleader of any High Court for that ,period. The question as to
·where he was practising, whether in the High Court itself or in
courts subordinate thereto, does not appear to make any difference.
The same phraseology, except for the change from the
word 'pleader' to the word 'advocate' has been carried into Art.
217(2)(b).
That was because under s. 8 of the Bar Council's Act
the roll which the High Court was to prepare and maintain was
the roll of the advocates of the High Court which included pleaders
entitled as of right to practise in the High Court immediately
before the date on which s. 8 of that Act was brought into
force.
Ii seems, therefore, indisputable that the expr.~ssion 'pleader
of a High Court' used in the Constitution Acts of 1915 and 1935
and the expression "an advocate of a High Court" used in Arts.
217(2)(b) and 124(3) must mean respectively a. pleader or an
?nvoro.te 0<1 the roll as such of a High Court and entitled as of
right by that reason to practise in the High Court. There is nothing
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in any of these provisions to indicate that an advocate of a High
Court can only be that advocate who has been practising in the
High Court. If the m~aning of the expression "an advocate of a
High Court" as suggested on behalf of the appellant were to be
accepted, a very strange anomaly, as pointed out by Broome, J.,
would result while construing Art. 124(3), namely, that an advoB
cate who has practised in the Supreme Court for the required
period but not in a High Court would i:iot be eligible for the office
of a Judge of the Supreme Court. For these reasons we are in
agreement with Broome and Mathur, JJ., on the construction placed
by them on Art. 217 ( 2) ( b). The first contention of counsel for
the appellant, therefore, must fail.
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Counsel next ·relied on Art. 233 (2) in support of the construction suggested by him of Art. 2 l 7(2)(b) and pointed out that
wherever the Constitution did not wish to insist on an appointee
having been an advocate practising in a High Court, it has used a
different expression, namely, an advoca.te simpliciter, as in Art.
233(2).
Art. 233 deals with appointment of district judges and
cl. 2 thereof provides that a person not already in the service of
the Union or the State shall only be eligible to be appointed a
district1judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
It is true that in this clause the word "advocate'' is
used without the qualifying words "of a High Court".
It is difficult, however, to see how the fact that the word "advocate" only
used in connection with the appointment of a district judge
would
assist
counsel
in
the
construction
suggested
by
him of the expression "advocate of any High Court" in Art. 217,
or that that expression must mean an advocate who has had the
necessary number of years' practice in the High Court itself.
The
distinction, if any, between the words "an advocate" in Art. 233(2)
and the words "an advocate of a High Court" in Art. 217(2)(b)
has no significance in any event after the coming into force of the
Advocate Act, 1961, as by virtue of s. 16 of that Act there are
now only two classes of persons entitled to practice, namely, senior
advocates and other advocates.
We find that in two of its decisions, in Senga/ani Gramani v.
Subbayya Nadar & Ors. (1) and V. C. Row v. A. Alagiriswamy &
Ors.('), the High Coi:;t o[ Madras also has interpreted Art.
217(2)(b) in the same manner as we have done.
In our view the
construction of Art. 217(2)(b) adopted by Broome, J., and on a
reference to him by Mathur, J., is correct.
The result is that the
appeal fails and is dismissed with costs.
One hearing fee only.
Y.P.
Appeal dismissed.
I I) A.LR. 1967 Mae. 344.
(2) A.LR. 1967 Ma<'. 347.