Jethanand Betab vs Hon'Ble Judges Of The Punjab High Court

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Appeal (civil) 490 of 1960

Decision Date: 06/12/1961

Coram: P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C.D. Gupta, N.R. Ayyangar

In this appeal, the petitioner, Jetha Nand Betab, had been admitted as an advocate of the Chief Court of Sind on 14 May 1947. He migrated to India at the close of 1948 and subsequently practiced before the courts at Delhi. An order dated 8 October 1956, issued by the Chief Justice of the Punjab High Court, barred the petitioner from practising as an advocate in Delhi. The petitioner filed an application before the Punjab High Court on 8 November 1956, asserting that his enrolment in the Chief Court of Sind entitled him to practise before all subordinate courts throughout the territory that later became India. A Full Bench of the Punjab High Court dismissed the application, reasoning that, after the partition, the petitioner could no longer be regarded as an advocate enrolled under the Bar Councils Act. The petitioner then challenged that decision by filing the present appeal, which was entertained after the Supreme Court granted special leave. The judgment of the Supreme Court, reported as AIR 1962 SC 742, was delivered by Justice K.C. Das Gupta, who sat on a Bench comprising Justices P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C.D. Gupta and N.R. Ayyangar.

The petitioner contended that, immediately before the partition of India, his right to appear before any court in British India was established, and that this right should have persisted despite the cessation of “British India” and the emergence of Indian provinces, which later became States under the Constitution, with the same courts continuing to operate. The respondents argued that the petitioner’s right to practice in courts that were not under the Chief Court of Sind terminated at the moment Sind ceased to be part of India and its Chief Court ceased to function as a High Court within India. The petitioner relied upon Section 14(1)(b) of the Indian Bar Councils Act to support his claim. Consequently, the Court found it necessary first to examine the structure of that Act. The Act was enacted to provide for the constitution and incorporation of Bar Councils for certain courts in British India, to confer powers and impose duties upon those Bar Councils, and to amend the law relating to legal practitioners entitled to practice before the courts. While the Act extended to the whole of British India, its initial application was limited to specific High Courts, namely those at Calcutta, Madras, Bombay, Allahabad, Patna and Rangoon, with provisions allowing the Governor‑General in Council to extend its applicability to additional High Courts by notification.

The Act was originally made applicable only to a limited group of High Courts, namely the High Court at Calcutta and the High Courts at Madras, Bombay, Allahabad, Patna and Rangoon. Section 1, sub‑section 2, however, authorised the Governor‑General in Council to extend the operation of the Act to any other High Court that fell within the definition of “High Court” found in Clause 24 of Section 3 of the General Clauses Act, 1897, provided that the extension was announced by a Gazette notification. Sections 2, 17, 18 and 19 were stipulated to come into force immediately, whereas the remaining provisions were to become effective for each High Court to which the Act applied on a date that the Governor‑General in Council might specify by further notification. Section 2 gave a precise definition of “Advocate” as “an advocate entered in the roll of advocates of a High Court under the provisions of this Act” and defined “High Court” as a High Court to which the Act applied. Sections 3, 4 and 5 dealt with the constitution and incorporation of Bar Councils. Under Section 8, every High Court was required to prepare and maintain a roll of its advocates, and the section also stipulated that no person could claim a right to practice in a High Court unless his name appeared on that roll. Section 10 conferred upon the High Court the power to reprimand, suspend or remove from practice any advocate who was found guilty of professional or other misconduct. The procedures for exercising those powers were laid down in Sections 10, 11, 12 and 13. In particular, Section 12 provided, among other things, that when an advocate was reprimanded or suspended under the Act, a record of the punishment had to be entered against his name in the roll of advocates, and that when an advocate was removed from practice his name was to be struck off the roll immediately. Section 14, inter alia, stated that an advocate was entitled as of right to practice in any other court in British India. It is not contested that the Governor‑General, by Gazette notification, declared the Chief Court of Sind to be a High Court to which this Act applied, and by a separate notification directed that all provisions of the Act would become operative with respect to the Chief Court of Sind on a date well before 1947. Although those notifications have not been produced before the Court, the record requires the assumption that on 14 May 1947, when the appellant was enrolled as an advocate of the Chief Court of Sind, he qualified as an advocate within the meaning of the Indian Bar Councils Act and, consequently, was entitled as of right to practice in any subordinate court in what was then British India.

At the relevant time the territory in question was part of British India, and the issue before the Court was whether the right of an advocate to practice in any subordinate court of India continued after the Province of Sind ceased to form a part of India. The Court observed that Section 2 of the Indian Bar Councils Act defines an “advocate” as “an advocate entered in the roll of advocates of a High Court.” This definition, the Court explained, requires that the advocate’s name not only be entered on the roll but also continue to remain on that roll. The Court illustrated the point by referring to Section 12(7), which provides for the removal of an advocate’s name from the roll; once that removal occurs, the person ceases to be an advocate within the meaning of Section 14 even though his name had previously been entered. Consequently, the phrase “advocate entered in the roll of advocates” can describe only those persons whose names are still recorded on the roll. The Court then considered the situation in which the High Court itself ceases to exist, either by abolition or other means. It concluded that if a High Court is no longer in existence, the roll that it formerly maintained also loses any legal existence, and therefore a person whose name was on that roll is no longer an advocate under Section 14 or any other provision of the Act. The Court found that this legal position applied to the present facts. The Chief Court of Sind, by virtue of the Governor‑General’s notification made under Section 1(2) of the Act, had been a High Court within the meaning of Sections 3 to 19 of the Indian Bar Councils Act. It would be unreasonable to contend that, after Sind stopped being a part of India, the Chief Court of Sind continued to operate as a High Court for the purposes of Indian law. The Court noted that any remaining doubt was resolved by the India (Adaptation of Existing Indian Laws) Order, 1947. In that context the Court recalled Section 18(3) of the Indian Independence Act, which provides that the law of British India and of its constituent parts, as it existed immediately before the appointed day, would, subject to necessary adaptations, continue as the law of each new Dominion until altered by the legislature or other competent authority of that Dominion. Numerous adaptation orders were therefore required to avoid legal confusion. Among those orders, Adaptation Order No. 16, titled the India (Adaptation of Existing Indian Laws) Order, 1947, defined the appointed date as 15 August 1947. Section 5 of that Order states that any reference in an existing Indian law to a High Court which, as of the appointed day, ceases to be a High Court for any part of the Dominion of India shall, if the reference is to the High Court of Judicature at Lahore, be replaced by a reference to the High Court of East Punjab, and in all other cases the reference shall be omitted.

The adaptation provision stated that whenever a reference in an existing Indian law mentioned a High Court that ceased to exist as a High Court for any part of the Dominion of India after the appointed day, the reference should be handled in two ways. If the reference was to the High Court of Judicature at Lahore, it had to be substituted with a reference to the High Court of East Punjab. In every other case, the reference was required to be omitted. Accordingly, the Chief Court of Sind, which qualified as a High Court under the General Clauses Act, ceased to be a High Court for any part of the Dominion of India on 15 August 1947. Consequently, any reference to that Court in the Indian Bar Councils Act, 1926 had to be omitted after that date. In practical terms, the Chief Court of Sind functioned as a High Court for the purposes of the Indian Bar Councils Act, 1926 up to 14 August 1947, but it lost that status with effect from 15 August 1947. The immediate result of this change was that the roll of advocates maintained by the Chief Court of Sind ceased, from 15 August 1947, to be a roll kept by a High Court within the meaning of the Indian Bar Councils Act. Therefore, any individual whose name appeared on the Chief Court of Sind roll lost the status of advocate under Section 14 of the Indian Bar Councils Act, 1926 and consequently lost the statutory right to practice before courts in India.

The Court observed that there could be no doubt that the purpose of the adaptation made in Clause 5 of the India (Adaptation of Existing Indian Laws) Order, 1947 was not merely to prevent future claims of rights based on a High Court that had become part of Pakistan, but also to bar the exercise of any rights that might have vested in a person while that Court was still a High Court in India. This intention was evident from the absence of any saving clause in the Adaptation Order. As a result, although the appellant possessed a right on 14 August 1947 to practice before courts subordinate to any Indian High Court, that right was extinguished by the Adaptation Order. The Court further noted that if the appellant’s contention were allowed to stand, an anomalous situation would arise in which no Indian court would have jurisdiction to take disciplinary action against him in case of misconduct. The Bar Councils Act was designed, as previously emphasized, to give each High Court in the country disciplinary jurisdiction over the advocates listed on its roll, and the provisions of the Adaptation Order preserved this scheme. Accordingly, the Court held that the High Court had properly rejected the appellant’s application, dismissed the appeal, and, in the circumstances of the case, made no order as to

The Court did not award any costs to either party. However, it ordered that the appellant, who lodged the appeal in a pauper manner, must nevertheless pay the court‑fees that would have become payable had he not been permitted to proceed as a pauper.