# O. N. MOHINDROO v. THE BAR COUNCIL OF DELHI & ORS

- **Citation:** [1968] 2 S.C.R. 709
- **Court:** Supreme Court of India
- **Decided:** 1968-01-08
- **Case number:** Civil Appeal No. 240 of 1967
- **Bench:** K. N. Wanchoo, R. S. Bachawat, J. M. Shblat, ·G. K. Mitter, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/o-n-mohindroo-v-the-bar-council-of-delhi-ors-4201
- **Pages:** 11

## Headnote

Con:titution of India, 1950, Art. 138(1) and (2) Scope of.
Advocates Act (25 of 1961), s. 38-Right of appool to Supreme Court
Riven to advocate in disciplinary proceedings-Whether right Jails undu
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Entry 77 of List I or Entry 26 of List Ill.
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Supreme Court Rules 1966, 0, 5, r. 1-Appeal under s. 38 Advoccies
Act, rejected summarily-If rule curtails right of appeal-Rule, if valid.
Tho appellant filed a writ petition in the High Court for quashing, (al
Ille order of suspension passed against him by the State Bar Council under
•· 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.
aJld (c) the order of this Court summarily rejecting his appeal to this
Court under s. 38, under O.V., r. 7 of the Supreme CoU!rt Rules, 1966.
He contended that : ( 1) the jurisdiction conferred on this Court by •·
31 related to a matter under Entry 26 of List III of the ConstitutiOB,
that it therefore fell under Art. 138(2), and as there was no special agreeIM!lt between the Government of India and ·the Government of a State
.., required by Art. 138(2), s. 38 was not validly enacted; and (2) 0. 5,
r. 7 of the Supreme Court Rules under which the appeal was plaoed for
preliminary hearing was ultra vires s. 38, as the rule cut down and impaired the right of appeal under the section.
The writ petition W3i dismitoed.
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, orpniu.tion, jurisdiction and powers of the Supreme Court, and also with
persons entitled to practise before the Supreme Court.
Sinee there is a
oeeming conflict between the two entries they have to be hannoniaed
by reading the general power in Entry 26 in a restrict"'1 sense. That i•,
the power to legislate in regard ta persons entitled to practise befor~ the
Supreme Court 11nder Entry 77 of List I should be held to be carveit out
from the general power relating to the professions in Entry 26 of Liiit Ill,
and made the exclusive field of Parliament. [715 E-,F, H; 716 A.CJ
The object of the Advocates AC'! is to constitute one common bar foe
the whole country and to provide machinery for its regulated functioning.
Though the Act relates to Jegal practitioners, in its pith and substance
it is an enactnient 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 pracb,,e in all courts including the Supreme Court, the Act is a piece of legisiatiOn dealing with persons entitled to practise before the Supreme Court.
11lcrefore, 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
SUPREME COURT REPORTS
[1968] 2 S.C.R
a composite lcgislatian parrly falling under Entry 77 of List l and partly
under Entry 26 of Lisr Ill. It does not fall under Art.
!38(2)
and
a
special agreement with a State Government.
is ther~forc not necessary.
1717 E, F-H; 718 A-C]
State of Bomha..v v. Ba/sara, (19511 S.C.R. 682. State of Bombay v.
Narothamdas, [!9511 S.C.R. 51 and In re: Lily Isabel Thomas. (19.641 6
S.C.R. 229. followed.
C. P. & B~rar Sales of ."Jotor Spirit and Lubricants
Taxation
Act,
l 938
(I 9381
F.C.R.
J 8. Citizens lns11ra11ce Co. of Canada v. Parsons.
[18811 7 A.C. 96, Bhola Prasad v. Emperor, (19421 F.C.R. 17, G. G. i"
Council v. Province of Madras, (1945) 72 I.A. 91
and
Durgtshwar v.
Secretary. Bar Council. Allahabad, A.LR. 1954 All. 728. referred to.
(2) On the e>press terms of Art. 145(l)(h) of the Constitution, r.
7 of 0. 5 of the Supreme Coon Rules is within the rule-making power ol
lhis Court, as it merely Jays down hov..· and in v.·hal manner an appeal
filed under s. 38 is to be dealt \\ith and does

## Text

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O. N. MOHINDROO
v.
THE BAR COUNCIL OF DELHI & ORS.
January 8, 1968
[K. N. WANCHOO, C.J., R. S. BACHAWAT, J. M. SHBLAT,
·G. K. MITTER AND C. A. VAIDIALINGAM, JJ.]
Con:titution of India, 1950, Art. 138(1) and (2) Scope of.
Advocates Act (25 of 1961), s. 38-Right of appool to Supreme Court
Riven to advocate in disciplinary proceedings-Whether right Jails undu
c
Entry 77 of List I or Entry 26 of List Ill.
D
E
F
G
H
Supreme Court Rules 1966, 0, 5, r. 1-Appeal under s. 38 Advoccies
Act, rejected summarily-If rule curtails right of appeal-Rule, if valid.
Tho appellant filed a writ petition in the High Court for quashing, (al
Ille order of suspension passed against him by the State Bar Council under
•· 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.
aJld (c) the order of this Court summarily rejecting his appeal to this
Court under s. 38, under O.V., r. 7 of the Supreme CoU!rt Rules, 1966.
He contended that : ( 1) the jurisdiction conferred on this Court by •·
31 related to a matter under Entry 26 of List III of the ConstitutiOB,
that it therefore fell under Art. 138(2), and as there was no special agreeIM!lt between the Government of India and ·the Government of a State
.., required by Art. 138(2), s. 38 was not validly enacted; and (2) 0. 5,
r. 7 of the Supreme Court Rules under which the appeal was plaoed for
preliminary hearing was ultra vires s. 38, as the rule cut down and impaired the right of appeal under the section.
The writ petition W3i dismitoed.
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, orpniu.tion, jurisdiction and powers of the Supreme Court, and also with
persons entitled to practise before the Supreme Court.
Sinee there is a
oeeming conflict between the two entries they have to be hannoniaed
by reading the general power in Entry 26 in a restrict"'1 sense. That i•,
the power to legislate in regard ta persons entitled to practise befor~ the
Supreme Court 11nder Entry 77 of List I should be held to be carveit out
from the general power relating to the professions in Entry 26 of Liiit Ill,
and made the exclusive field of Parliament. [715 E-,F, H; 716 A.CJ
The object of the Advocates AC'! is to constitute one common bar foe
the whole country and to provide machinery for its regulated functioning.
Though the Act relates to Jegal practitioners, in its pith and substance
it is an enactnient 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 pracb,,e in all courts including the Supreme Court, the Act is a piece of legisiatiOn dealing with persons entitled to practise before the Supreme Court.
11lcrefore, 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
SUPREME COURT REPORTS
[1968] 2 S.C.R
a composite lcgislatian parrly falling under Entry 77 of List l and partly
under Entry 26 of Lisr Ill. It does not fall under Art.
!38(2)
and
a
special agreement with a State Government.
is ther~forc not necessary.
1717 E, F-H; 718 A-C]
State of Bomha..v v. Ba/sara, (19511 S.C.R. 682. State of Bombay v.
Narothamdas, [!9511 S.C.R. 51 and In re: Lily Isabel Thomas. (19.641 6
S.C.R. 229. followed.
C. P. & B~rar Sales of ."Jotor Spirit and Lubricants
Taxation
Act,
l 938
(I 9381
F.C.R.
J 8. Citizens lns11ra11ce Co. of Canada v. Parsons.
[18811 7 A.C. 96, Bhola Prasad v. Emperor, (19421 F.C.R. 17, G. G. i"
Council v. Province of Madras, (1945) 72 I.A. 91
and
Durgtshwar v.
Secretary. Bar Council. Allahabad, A.LR. 1954 All. 728. referred to.
(2) On the e>press terms of Art. 145(l)(h) of the Constitution, r.
7 of 0. 5 of the Supreme Coon Rules is within the rule-making power ol
lhis Court, as it merely Jays down hov..· and in v.·hal manner an appeal
filed under s. 38 is to be dealt \\ith and does not deal with or affect the
right of appeal.
The fact that under tho rule the appeal is placed for
preliminary hearing and is liable to be di~poscd of at that stage docs not
mean that the content of the right of appeal under the section is in anv
way curtailed, because, the party filing the appeal is heard on all poinb;
rai>cd by him even at that stage. (718 F-HJ
Prem Chand Garg v. I-:xcisc Commi.nioner. (1963] Supp. 1 S.C.R. 885.
llistinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 240 of
1967
Appeal from the judgment and order dated December 22,
1966 of lhe Delhi High Court in Letters Patent Appeal No. I of
I 966.
:' ;ipellant in person.
Avadh Behari, for respondents Nos. I and 2.
P. Ra/II Reddy, and A. V. Ra11gam, for respondent No. 3.
Purshottam Trikamdas and /. N. Shroff, for respondent No. 4.
Purshottam Trikamdas and S .. P. Nayar, for respondent
No. 5.
The Judgment of the Court was delivered by
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Sbelat, J. This appeal by certificate raises the question as to
G
th~ scope of entries 77 and 78 in List I and entry 26 in List IIl
L'f the Sevenlh Schedule to the Constitution.
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 matH
ter periding before his Couri, had mutilated the copy of a notice
in th;tt record by wilfully tearing a portion thereof. the District
Judge, Delhi filed a report against the appellant before the Delhi
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MOHJNDROO v. BAR COUNCIL (She/at, /.)
711
State Bar Council for taking action under the Advocat~s ~c.t, 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. 3 7 before the Bar Council of India failed.
Thereupon he filed an appeal against the said or~er under s .. 38
in this Court.
The 1appcal was placed for prehmmary heanng
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 continuing 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
0. 5 of the Supreme Court Rule~ 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 0. 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
1that 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 conten•ion he
held that, clause 2 of Art. 13 8 did not apply and that it "'as clause
I of'thaliil\rticle which was applicable as the subject matter of the
Advocate&· Act fell under entry 77 of the Union List. As to the
other two contentions he held that rule 7 of the 0. 5 was valid
and did not contravene s. 3 8; 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
SUPREMB COURT REPORTS
[1968] 2 S.CR.
the appellant filed a Letters Patent Appeal.
At the hearing of
that appeal the appellant's c~sel conceded that he could not
raise any contention on the merits of the case in view of this
Court having disposed of th.ose very contentions and that therefore
he would confine his argument' only •to the question of the \lires
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 tho.se entries and partly under entry 26 of List Ill; (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 obtai•
special leave under Art. 136.
On this reasoning the learned Judges dismissed the rontention as to the vires of s. 38.
Dismissin~
the appeal the learned Judges observed :
"There is no bar to the Parliament legislating with
respect to jurisdictiofl afld 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 conferm~ot
of further power
and
jurisdiction as envisageu 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 thi~
view.
The question which falls for consideration is one of interpretation of entries 77 and 78 of List I and entry 26 of List III.
If it is held that it is entry 26 of List 111 under which the Act
was enacted, clause 2 of Art. 138 would apply and in that case
a special agreement with the State Governmeflt 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 a~sume that the distribution of legislative powers in the three Lists could not have been intended to
be in conflict with one another.
A general power ought not to
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MOHINDROO v. BAR COUNCIL (She/at, J.)
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oe 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 coniext 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 Insurance Company of Canada v. Parsons(');
Rho/a Prasad v. Emperor('); Governor General in Council v.
Province of Madras('). and State of Bombay v. Balsara(•).
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 Li>t 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, exce:pt
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. I 8.
(3) [1942] F.C.R. 17.
(5) [195t] S.C.R. 682.
(21 [1881] 7 A.C. 96.
(4) [1945] 72 I.A. 91.
714
SUPREME COURT REPORTS
[1%8] 2 S.C.R.
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 wheth~r the Act is enacted by one or the
other. Entry 3 in List II 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 Stale Legislatures can,
therefore enact laws, providing fo[ the constitution and organisation of courts except the Supreme Court and the High Courts
and confer jurisdiction and powers on them in all m;i!lers. 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 Ion~ as th;H is not done
the courts established by the State Legislatures would have jurisdiction to try all suits and proceedings relating even to matters in
Lis'.s I and Ill. Thus, so far as the constitution and organisation of the Supreme Court <lnd the High Courts arc concerned.
the power is with Parliam~nt. As regards the other courts. Entry
3 of List II 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 II, 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 Parforr.ent except where ·a Central Act dealing with matters in Lists T and Ill
otherwise provides. That these entries contemplate such a scheme
was brought out in State of Bombay v. Narorhamda'( 1 ). where it
was contended that the Bombay City Civil Court Act, 40 of
1948, consti:uting the said Civil Court as an additional court
:was ultra vires the Provincial Legislature as it conferred jurisdic-
(1) (195t] S.C.R. 51.
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~OIDNDROO v. BAR COUNCIL (Shelat, J.)
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tion on the new court not only in respect of matters in List II of
the Seventh Schedule of the Government of India Act, 1935
but also in regard io 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 II 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 Il 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 II 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 II 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 Legislatures to make special provisions relating to particular subject~
referred to in the Lists.
It may be mentioned that item 53 in
List I, items 1 and 2 in List II 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 I, entries 3 and 65 in List II 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 organ_isation of
courts or their jurisdiction and powers. These, as already stated.
are dealt with by entries 77, 78 and 95 in List I, entries 3
and 65 in List II and entry 46 in List TIT.
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 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 entitled 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
SUPREME COURT REPORTS
(1968] 2 S.C.R•
entry 77, the jurisdiction and powers of the High Courts are
dealt with not by entry 78 of List I but by other entries. Entrioi;
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 Ill 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
i~ thus excluded from entry 26 in List III and is made the exclusive field for legislation by Parliament only [Re : Lily Isabel Tlroma.r( 1) and also Durgeshwar v. Secretary, Bar Council, Allahabad(')). Barring those entitled to practise in the Supreme Court
and the High Com .s. the power to legislate with respect to the
rest of the practitioners would still seem to he 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 o{
entry 26 is not the question at present before us and therefore it
is not necessary to go into it in this appeal.
The Aavocates 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 standards of professional conduct and etiquette, to lay down procedure to he followed by its
disciplinary committee and the disciplinary committee of each State
Bar Council, to exercise gene1 al 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 provide.'
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 wh05e name is entered in the common
roll shall be entitled as of right to practise thro\lghout the terri-
(I) [1964] 6 S.C.R. 229, 236.
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MOHINDROO v. BAR COUNCIL (Shelat, J.)
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tories to whkh 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 refeu 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 3 7 gives a right of appeal
to the Bar Council of lndia 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 orde• by the disciplinary commi•tee of the Bar
Council of lndia 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 il~
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
:'-ct relates to the legal practitioners, in its 'pith and substance it
1s an enact?lent which c.oncerns itself with the qualifications, enrolm~nt, nght to practise and discipline of the advocates.
As
provided by the Act once. a person is enrolled by any one of
the St~te Ba; Councils. he becomes entitled to practise in all
courts mcludmg the Supreme Court. As aforesaid, the Act creates one common Bar, all its members being of one class. namely,
advocates.
Smee all those who have been enrolled have a ricrht
to p~actise. in the Supreme Court and the High Courts,
~he
Act 1.s a piece of legislation which deals with persons entitled to
practise before the Supreme Court and the High Courts. ThereL3 Sup.Cl/68-2
718
SUPREME COURT REPORTS
(1968) 2 S.CR.
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 Ill, 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 Ill.
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
ma,tter falling under entries 77 and 78 of the Union List and the
Act would, therefore, fall under clause 1 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 valiuity of rule 7 of 0. 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 id 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 Garg v. Excise Cnmmissioner( 1 ) cannot assist the appellant. In that decision rule 12
-
(t) (1963) Supp. I S.C.R. 885.
B
c
D
E
G
H
MOHINDROO v. BAR COUNCIL (Shelat, J.)
719
A
of 0. XXXV of ihe 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 <if
persons without means to do so would obviously obstruct 'such
B
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 inthis appeal. The contention, therefore, that rule 7 curtails the
right of appeal under s. 38 or contravenes that section must be
rejected.
C
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
D
Court.
The appeal fails and is dismissed with costs.
V.P.S.
Appeal dilflllissed.