O. N. Mohindroo Vs. The Bar Council of
Delhi & Ors  INSC 2 (8 January 1968)
08/01/1968 SHELAT, J.M.
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
CITATION: 1968 AIR 888 1968 SCR (2) 709
R 1973 SC 231 (11,14)
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 proceedingsWhether
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.
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 of 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 impaired 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 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 legislation 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
AC] State of Bombay v. Balsara,  S.C.R. 682, State of Bombay V.
Narothamdas,  S.C.R. 51 and In re : Lily Isabel Thomas,  6 S.C.R.
C. P. & Berar Sales of Motor Spirit and
Lubricants Taxation Act, 1938  F.C.R. 18, Citizens Insurance Co. of
Canada v. Parsons,  7 A.C. 96, Bhola Prasad v. Emperor,  F.C.R. 17,
G. G. in Council v. Province of Madras, (1945) 72 ].A. 91 and Durgeshwar v.
Secretary, Bar 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,
 Supp. 1 S.C.R. 885, distinguished.
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 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 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 interpretation 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 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)  F.C.R. 18. (2)  7 A.C. 96.
(3)  F.C.R. 17. (4) (1945] 72 I.A. 91.
(5) 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
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 jurisdiction (1)
 S.C.R. 51.
715 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 Legislatures 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 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 Courtís 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 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 Courtís 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 Courtís
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 there under, 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 territories (1) 
6 S.C.R. 229,236.
(2) A.I.R. 1954 All. 728.
717 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 there under 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 Courtís 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
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
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)  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
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 re-agitate
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.