Adi Pherozshah Gandhi Vs. H. M.
Seervai, Advocate-General of Maharashtra, Bombay [1970] INSC 170 (21 August
1970)
21/08/1970 HIDAYATULLAH, M.
(CJ) HIDAYATULLAH, M. (CJ) SHELAT, J.M.
MITTER, G.K.
VAIDYIALINGAM, C.A.
RAY, A.N.
CITATION: 1971 AIR 385 1971 SCR (2) 863 1970
SCC (2) 484
CITATOR INFO :
RF 1975 SC2092 (21,22,52,57) RF 1981 SC 116
(7) E 1982 SC 149 (606,963) F 1983 SC 990 (11)
ACT:
Advocate Act (25 of 1961) s. 37--'person
aggrieved' ,meaning of--Advocate-General of State taking part in proceedings before
Disciplinary Committee of Bar Council--If person aggrieved' with a right of
appeal.
HEADNOTE:
The appellant was an advocate from Maharashtra. He was convicted by a Summary Court in London on a charge of pilfering from a
Departmental Store and was sentenced to pay a fine. The State Bar Council
called upon him sou motu to show cause why he should not be held guilty of
misconduct.
he submitted his explanation and the
Disciplinary Committee of the Bar Council was satisfied that there was no
reason for holding him guilty of professional misconduct. The Advocate-General
of the State who was sent a notice of the proceedings as required by s. 35(2)
of the Advocates Act, 1961, and bad appeared before the Disciplinary Committee,
filed an appeal to the Bar Council of India under s. 37 of the Act, under
which, any person aggrieved by an order of the Disciplinary Committee of the
State Bar Council made under s. 35 of the Act, may prefer an appeal to the Bar
Council of India. The appellant objected that the AdvocateGeneral had no locus
standi to file the appeal. The objection was overruled by the Disciplinary
Committee of the Bar Council of India and the appellant was found guilty of
professional misconduct.
in appeal to this Court, on the question of
the competency of the Advocate-General to file the appeal under s. 37.
HELD : (Per Hidayatullah. C.J., Shelat and
Mitter, JJ.) The was not a person aggrieved, within the meaning of 37 and
therefore, the appeal filed by him was incompetent and hence, finding of the
Disciplinary Committee of the Bar Council of India should be get aside. [887 H;
904 E] (Per Hidayatullah C.J.) (1) The expression person aggrieved' must be
construed by reference to the context of the enactment in which it and all the
circumstances. Under the Act, disciplinary proceedings before a State Bar
Council commence on a complaint to it or suo motu and are referred to its
Disciplinary Committee. The Disciplinary Committee can reject the matter
summarily; but if it proceeds to hear it further, notice thereof is sent to the
concerned advocate and to the advocate-General of the State. The AdvocateGeneral
may appear personally or by counsel. If the Disciplinary Committee after giving
the Advocate and the Advocate-General an opportunity to be heard holds hat the
Advocate is not guilty of any misconduct it makes an order it her dismissing
the complaint, or where the proceeding was started by in Bar Council makes an
order that the matter may be filed.. If it finds the advocate guiltyit may
either reprimand the advocate or suspend 864 the advocate from practice for a
specified period or remove his name from the roll of Advocates. From the
decision of the Disciplinary Committee of the State Bar Council an appeal lies
to the Bar Council of India at the instance of a person aggrieved'. The appeal
is heard by the Disciplinary Committee of the Bar Council of India and from its
decision an appeal lies to this Court. [884 E-H; 885 A-B] (a) In these
proceedings before the disciplinary committee the Advocate-General is not in
the nature of a party having independent rights which lie can claim nor is he
injured by the decision. The decision does not deny him anything nor does it
ask him to do anything. He is also not intended to be bound by the decision. He
does not represent the Bar nor has he a right to speak on behalf the body of
the advocates. Such a privilege is neither expressly conferred on him nor can
it be implied from the provisions of the Act.
[885 C-D; 886 A-B] (b) In the State Bar
Councils (except in Delhi), the Advocate-General of the State is an ex-officio
member, but his functions are not different from those of other members.
He has a right of pre-audience, but the Advocates
Act does not confer any other right on him. When the Committee considers in
limini to decide whether the matter should be proceeded with at all, the
Advocate General's presence is not considered necessary. Therefore, the
Advocate-General is not a prosecutor on behalf of the Bar Council. He is
noticed and brought before the Committee because he is the Chief Counsel of the
State and therefore his assistance at the hearing is useful. He is generally a
lawyer of some standing having made a mark in the profession and his
contribution to the deliberations of the Disciplinary Committee is welcome,
because, thus the Disciplinary Committee is helped to reach a proper
conclusion. The fact that he can appear through counsel shows that the
intention is merely to have his opinion as an amicable curiae who is neither
siding with the complainant nor with the Advocate and who will thus have an
unbiased and impartial approach to the case. He must after he has done his duty
leave the matter to the complainant and the advocate or the Bar Council to take
the matter further if they choose. [883 C, E-F; 885 E-H; 886 A] (c) If he is
not a person summoned to be bound by the order but a person who is heard in a
dispute between others merely to be of assistance in reaching the right
conclusion he can hardly have a grievance. Any person who feels disappointed
with the result of a case is not a person aggrieved'. He must be disappointed
of a benefit which he would have received if the order had gone the other way.
The order must cause him a legal grievance by wrongfully depriving him of
something or must have a tendency to injure him. That the order is wrong or
that it acquits some one who he thinks ought to be convicted does not by itself
give rise to a legal grievance. [876 A-C] Therefore, it cannot be said that by
reason of the provisions of the Advocates Act, the Advocate-General of the
State enjoys such a position that be must necessarily be treated as a person
aggrieved' entitling him to file an appeal. [882 H; 886 G] -In re. Sidebotham
Ex. Sidebotham, (1880) 14 Ch. D.
458(C.A.). In re. Lamb Exp. Board of Trade,
[1894] 2 O.B.D. 805, 812, In re. Kitson,, Exp. Sugden (Thomas) & Sons, Ltd.
[1911] 2 K.B.' 109, 112-114. Bln. re. Brown Exp. Debtor v. official Receiver
(1943) Ch. D. 177. Ellis Exp. Ellis (1876)2 Ch. D. 779, In re. Words Exp.
Dalton (1874)40 L.T. 297(C.A.), R. v. London County Keepers of Peace and
Justice [1890] 20 Q.B.D. 357, Jennings v. Kelly, [1940] A.C. 206 (H.L.). In 865
re. Reviere (1884) 2 Ch. D. 48, Robinson v. Currey [1881] 7 Q.B.D. 465, 470
(C.A.); Seven Oaks Urban District Council v. Twynham (1929) 2 K.B. 440,' 443,
Eating-Corporation v.
Jones L. R. [1959] 1 Q.B.D. 384, B. M. Madani
v. Commissioner of Workmen's Compensation Bombay, C.A. 877 of 1968 decided on
October 10, 1968 and Municipal Corporation of the City of Bombay v. Chandulal
Shamldas Patel, C.A. 1716 of 1967 decided on August 1, 1970, referred to.
(2) It could not be said that in the present
case there were several points of general public interest which needed to be
solved and therefore, if the decision of the Disciplinary Committee of the
State Bar Council was wrong, the Advocate-General, in public interest, could
take the matter further. [886 G-H] Unlike the position of an Attorney General
in a Crown Colony, the Advocate-General of a State in India does not represent the
Executive or the Legislature or the Judiciary, or the Central Government in
disciplinary proceedings before the Disciplinary Committee. The magniloquent
phrases such as Leader of the Bar, Keeper of the, Conscience of the Bar have no
meaning neither under the Advocates Act nor under the Bar Councils Act, 1926.
They are just honorific titles given by the courtesy but are not grounded on
law, the keepers of the conscience of the Bar being the Bar Councils.
[883 F-G; 886 C-D] In the present case the
appellant was not precluded from questioning the charge in the disciplinary
proceedings because of the decision of the Criminal Court in London.
His explanation was accepted by the
Disciplinary Committee of the State Bar Council. They were also satisfied that
the summary proceedings in the criminal trial in England offended against the
principles of natural justice, and that therefore, the conviction of the
appellant in England did not show any moral turpitude in the appellant. If the
Advocate General's view on these matters were not accepted by the Disciplinary
Committee he could not have any grievance. He could not make it his own cause
or a cause on behalf of others whom he did not represent. He had done his duty
and the matter should have rested there. [887 C-F] Attorney-General of Gambia
v. Pierre Saar N'Jie, [1961] A.C.
617 (P.C.) referred to.
(3) (a) The facts that in Advocate-General of
Bombay v. Phiroz Rustamji Barucha 37 Bom. L.R. 722 (P.C.) the standing of the
Advocate-General to apply for special leave in a proceeding relating to
professional misconduct of an Advocate was questioned before the Privy Council,
but that the Privy Council refused special leave on a different ground cannot import
a rejection of the objection as to the standing of the Advocate-General.
[881-E] (b) The observations in B. Nageshwara Rao v. The Hon'ble Judges of the
Madras High Court, [1955] 1 S.C.R. 1055 that in an appeal arising out of a
proceeding under the Bar Councils Act, it was inappropriate to make the Judges
respondent, and that the appropriate parties should be the concerned Advocate
the complainant (if any), the Bar Council and the Advocate-General of the
State, do not advance the case of the Advocate-General in this case. [882 E]
(Per Shelat and Mitter, JJ.) (1) A State Bar Council consists of a number of
members including the AdvocateGeneral of the State ex-officio. Under the
provisions of the Advocates Act, subject to a right of appeal to this Court
under s. 38, inquiries into charges of misconduct against L169CI/71-11 866
advocates are to be in the exclusive jurisdiction of the Bar Councils. If a
complaint is received against an Advocate it is referred to the Disciplinary
Committee ofthe Bar, Council or the Bar Council can take such a step suo motu.
It is however not obligatory to refer each
and every complaint but only when the Bar Council is satisfied that there is a
prima facie case for investigation. if it is not so satisfied it can throw out
the complaint as frivolous. And it is only when the Disciplinary Committee does
not summarily reject the complaint that a date has to be fixed for its hearing
and notice thereof must be given to the advocate concerned and the
Advocate-General of the State but it is not incumbent on the Advocate-General
to appear in person; he can appear through another advocate and place his
view-point before the Disciplinary Committee. The Advocate and a complainant
who makes allegations against an advocate are persons aggrieved entitled to
file an appeal under s. 37 if an order is made against the advocate, or the
complaint is dismissed by the Disciplinary Committee. But the State Bar Council
cannot be such a person as the order is made by itself and acting through its
Disciplinary Committee. [889 B-C; 891 B-C] Generally speaking a person is said
to be aggrieved by an order which is to his detriment, pecuniary or otherwise
or causes him some prejudice in some form or other. A person who is not a party
to a litigation has no right of appeal merely because the judgment or order
contains some adverse remarks against him. A person who is not a party to a
suit may prefer an appeal,, with the leave, of the appellate court when the
judgment would be binding on him. But because a person has been given notice of
some proceedings wherein he is given a right to appear and make his
submissions, he does not without more, have a right of appeal from an order
rejecting his contentions or submissions. To place the Advocate-General in the
company of "persons aggrieved" one must be able to say that the
Disciplinary Committee committed an error which it was his duty to attempt to
set right because of some function attributable to him as the Advocate General
or some obligation cast upon him by the Act or the general law of the land to
safeguard and maintain standards of conduct of Advocates laid down by the Bar
Council of India. [892 B-F] (a) The Advocate-General is entitled to a hearing
if the complaint is not rejected summarily. But it is not obligatory on him to
take part in the proceedings. It is only when he feels that a case requires a
careful investigation and proper elucidation of the facts or the exposition of
the law on the subject that he is called upon to render assistance. He has to
take a fair and impartial attitude and render all assistance to the Bar Council
to enable it to arrive at a proper decision. His role is not that of a
prosecutor nor is he a defence counsel on behalf of the advocate. Ms duty is to
put before the Disciplinary Committee the facts in their proper perspective and
to advance the proper inference to be drawn. Once he does so there is an end of
the matter so far as he is concerned; and he cannot have any grievance because
the decision of the Bar Council is against his submission or not to his
liking'.
[896 G-H; 897 A-C] (b) Article 165(2) of the
Constitution epitomizes the functions and duties of the Advocate-General. It
lays down that he has to discharge the functions conferred upon him by or under
the Constitution or any other law for the time being in force. It is not open
to the Advocate-General to intervene in any suit or legal proceeding apart from
the provisions of the Codes of Civil and Criminal Procedure, merely because he
thinks public interest is involved in the matter. Considering the matter 867
historically, the Legislature, while passing the Bar Councils Act, 1926, and
the Advocates Act, 1961, thought that the Advocate-General should be heard
inasmuch as he occupied the position of a general referee on points of
professional etiquette very much like the Attorney-General in England. Once he
does this duty enjoined upon him by the statute. of making such submissions as
he thinks proper at the hearing, his functions qua the enquiry come to an end.
As a referee he has no further interest in
the matter, and if the Disciplinary Committee makes an order -against the
advocate which the Advocate-General considers harsh and unreasonable he is not
called upon to file an appeal.
Neither is he interested in prosecuting the.
matter further if he takes the view that the punishment meted out is not
commensurate with the misconduct of the advocate. [897 D-E, G-H; 900 C-F]
Robinson v. Currey, 7 Q.B.D. 465, Ex parte Side botham. In re Side botham, 14
Ch. D. 458 465, Ex parte Official Receiver. In re Read, Brown & Co. 19
Q.B.D. 174, 178, the Queen v. Keepers of the Peace and Justices of the County
of London, 25 Q.B.D. 359, 361; Rex v. London Quarter Sessions, Exparte
Westminster Corporation (1951) 2 Q.B.D. 508, Seven Oaks Urban District Council
v. Twynham, (1929) 2 Q.B.D. 444, Ealing Corporation v. Jones, (1954) 1 K.B.
384, 390, referred to.
(2) The Advocate-General of a State in India
is not a representative of the Government. Neither the Constitution nor the Advocates
Act holds him so nor is be a person representing public interest, unlike the
Attorney-General in a Crown Colony' except as provided in statutes. He may draw
the attention of the Bar Council to any misconduct of an advocate and appear at
the hearing. Once the hearing is over and a finding is recorded he has done his
duty and be cannot be said to be aggrieved within the meaning of s. 37.
Every day courts of law are called upon to
decide questions of law inter parties which may be of general importance to the
public. The Advocate-General cannot prefer an appeal merely because the
question is one of considerable importance to the public inasmuch as he is not
a party to it; and he has no locus stand to do so, even in a case where the
statute only gives him an opportunity of appearing at a hearing and making his
submission. A decision of the Disciplinary Committee cannot necessarily be said
to raise a point of public interest merely because the Advocate General feels
that it is erroneous or that he himself would have arrived at a different in
India is not the guardian angel of the Bar, nor is he the champion of public
interest in any matter save as specified in a statute. [902 D-G; 904 B-E]
Attorney General of Gambia v. Pierre Saar N' Jie, (1961) A.C. 617, (P.C.),
referred to.
(3)(a) The decision of the Judicial Committee
in AdvocateGeneral, Bombay v. Phiroz Barucha, 37 B.L.R. 722 (P.C.) does not
help the Advocate-General, because it did not decide the point as to the
maintain ability of the appeal. [903 CD] (b) It did not appear that any
argument was advanced in Nageswara Rao v. The Hon'ble Judges of the' Madras
High Court, [1955] S.C.R. 1055, 1064 about the proper parties to the appeal
before this Court arising from proceedings under the Bar Councils Act; and the
point as to Whether the Advocate General was a person aggrieved was neither
raised nor argued. Therefore. the observation in the case that 868 the
Advocate-General of the state is an appropriate party in the appeal should, not
be accepted. 1903 G-H] (Per Vaidialingam and Ray, JJ. dissenting) : The appeal
filed by the Advocate-General of Maharashtra was competent as he was a person
aggrieved' under s. 37 of the Advocates Act, 1961. [908 B-C; 920 G-H] (Per
Vaidialingam, J.) : (1) The question whether the Advocate General is a person
aggrieve& under s. 37 of the Advocates Act will have to be tackled with
reference to the, scheme and provisions of the Act.' Under the Act, the State
Bar Councils and the Bar Council of India have been made autonomous units and
various functions regarding the legal profession have been entrusted to them
including taking disciplinary action against delinquent members and conducting
inquires. Barring a ,right of appeal to this Court under s. 38 the courts are
completely out of the picture. Under ss. 3 (2) (a), 23 (4) and 35, the AdvocateGeneral
of the State is given a very important and responsible position and the Act has
given due recognition to his status by virtue of his being the highest law
officer in the State, and as one who may be trusted to place a disinterested
and dispassionate view before the Disciplinary Committee to enable it to come
to a proper decision with respect to the advocate concerned and the legal
profession.
Apart from being an ex officio member of the
State Bar Council, he has also a right of pre-audience over other advocates.
[909 D-G; 911 G-H; 912 B-D; 916 A] Under ss. 35 and 37, (i) the State Bar
Council can suo motu or on receipt of a complaint, when it has reason to
believe that an advocate has been guilty of professional or other misconduct,
refer the caseto its Disciplinary Committee (ii) If the Committee does not
summarily reject the complaint, it is bound to fix a date for its hearing and
also bound to give notice to the advocate and the Advocate General of the
State; (iii) The Committee is bound to give an opportunity of being heard to
the Advocate and the Advocate-General and there is no distinction in the
opportunity so afforded to both of them; (iv) The Advocate-General may appear
in person or through counsel; (v) the Committee can pass one or other of the
orders enumerated in s. 35(a) to (d) and the orders have to be communicated to
the Advocate-General also, and under s. 37, any person aggrieved' is entitled
to file an appeal to the Bar Council of India. Unlike under the Bar Councils
Act, the Advocate General is associated with the disciplinary proceedings right
from the stage of the inquiry by the Committee. The notice to the
Advocate-General cannot be a formal and empty notice, because he should begin
an opportunity of being heard. Even though there may be no lis' and the
Advocate General may not be a party' in the usual sense, he is also entitled,
like the advocate against whom the inquiry is being conducted, to place before
the Committee all aspects of the matter in favour of and against the advocate.
He is allowed to appear by counsel, because, he may not be able to appear
personally and participate in all the disciplinary proceedings. He need not be
vindictive or take sides, but by virtue of his special and dispassionate role
he will be able to place all relevant material to enable the Committee to come
to a proper and correct finding. [912 D-H; 913 A-H:
914 A-B] (a) The fact that the Advocate
General does not allege an infringement of any legal rights of his own is of no
consequence. It may be that in a particular case the Advocate General may feel
that the finding arrived at either in favour of the advocate or against him or
the punishment imposed on the advocate, is not justified by the evidence on
record. Under such and similar circumstances the Advocate General will be
competent, as a person aggrieved, to bring up the matter before the Appellate
Committee so that justice may be done..[914-G; 915 A-C] 869 Sevenoaks Urban
District Council,v. Twynham [1929] 2 K-B. Ealing Corporation v. Jones [1959] 1
Q.B. 584, Madani v. Commissioner of Workmen's Compensation, Bombay, C.A. 877 of
1968 decided on October 10, 1968.
Re. Sidebotham 14 Ch. D. 458, The Queen v.
The Keepers of the, Peace and Justices of the County of London, 25 Q.B.D., 357,
Re. Reed, Brown & Co. 19 Q.B. 174, Rex v. London Quarter Sessions (1951) 2
K.B. 508 and Municipal Corporation of the City of Bombay v. Chandulat Shamaldas
Patel, C.A.
1716 of 1967 decided on August 1, 1970,
referred to.
(b) The fact that the Legislature provided
that the Advocate-General should be associated with the disciplinary
proceedings from the very beginning of the inquiry brings him under s. 37 as a
person aggrieved' and hence the fact that the Committee decided in favour of
the Advocate has no bearing on the question. [914 G-H] (c) The fact that the Advocate-General
is not given notice before rejecting a complaint summarily does not militate
against the view that he is a person aggrieved' because, probably, the
Legislature felt that if there was a wrongful summary rejection of a complaint,
it could be set right by the Bar Council of India under a. 48A by exercising
its signal powers. [916 FF] (d) In this view it is unnecessary to mention the
Advocate General specifically a person aggrieved' in a. 37. [918 A] (2) Ile
analogy of the Attorney-General in a Colony representing the Crown and being
the guardian of public interest as stated in Attorney-General of Gambia v.
Pierre Sarr N' Jie (1961) A-C. 617 cannot be brought in for interpreting s.37
of the Advocates Act, and the observations therein must be related to the
particular legal provisions which were considered. But even that decision recognised
that the words person aggrieved' are very wide and should not be subjected to
any restrictive interpretation. (912 AB; 920 A-B, E] (3) The decisions in
Advocate-General of Bombay v.
Pitambardas Gokuldas, 62 I.A. 235 and
Advocate-General of Bombay v. Phiroz Rustomji barucha, 37 B.L.R. 722(P.C.) do
not decide the question one way or the other, [917 A-D] (Per Ray, J.) : (1) The
purpose and the provisions of the Advocates Act determine whether the
Advocate-General is a person aggrieved within the meaning of s.37 of the Advocates
Act. Under the Act, a State Bar Council is empowered to constitute a
Disciplinary Committee. Where on receipt of a complaint or otherwise a State
Bar Council has, reason to believe that an advocate on its roll is guilty of
professional misconduct it shall refer the case for disposal to its
Disciplinary Committee, and if the Committee does not summarily reject it, a
date of hearing shall be fixed. The provisions relating to inquiries into
professional misconduct of an advocate, establish first that the Advocate
General entitled to a notice of the date of hearing, secondly, that no order
can be made by the Disciplinary Committee without giving him an opportunity,
and thirdly that he may appear in person or through an advocate and that he has
a right of pre-audience. He may not choose to appear but if he does appear, his
right is based on statute; and he does not appear as a mere friend of the
court. He is heard because he is the head of the Bar in the State and the
proceedings affect the discipline and dignity of the Bar and touch the
professional 870 conduct of an advocate. Under Art. 165 of the Constitution the
Advocate General has to discharge the functions conferred on him by the
Constitution or any other law in force. The Advocates Act concerns an advocate
and it is in the fitness of things that the Advocate General of the State is
heard as a person representing the profession which assists the litigant public
and the courts in the administration of justice. He is usually a person of high
standing and experience and will pot adopt any partisan attitude in the proceedings.
The purpose of the inquiry is not to redress the grievance of an individual
complainant-in fact ss. 35 and 36 do not contemplate any notice to the
complainant-but to find out whether there is any breach of professional
standards and conduct.
[926 C-H; 827 F-H; 928 A-C] (a) It is not the
intention of the statute that he would be merely a neutral observer before the
Disciplinary Committee and that he would have no duty to perform. He would have
to express his views, and if in a matter of sufficient gravity a totally
inadequate punishment is imposed or if the punishment is too severe the
Advocate General would be a person aggrieved', to have it corrected. The words
person aggrieved' will be preferable to the Advocate, complainant, and the
Advocate General or Attorney General as the case may be. The Advocate-General
and the Attorney General will be persons aggrieved because they are interested
in maintaining professional rectitude. [929 C-G] (b) Further if the proceedings
were held without notice to the Advocate General or without giving him an
opportunity of being heard he would be a person aggrieved. His participation in
the proceedings does not alter the position. If he has a right to be heard, he
may have a grievance as to the result of the hearing. [929 A-B] Re. Exparte
Side botham 14 Ch. D. 458; Exparte Official Receiver, In re. Reed Bowen, 19, Q.
B. D. 174, Sevenoaks Urban British Council v. Twynhan (192-9) 2 K. B. 104,
Queen v. Keepers of the Peace and Justices of the County of London, 25 Q., B. D.
357 and Madani v. Commissioner of Workmen's Compensation, Bombay, C.A. 877 of
1968 decided on October 10, 1968, referred to.
(2) In disciplinary proceedings there is no
party in the usual sense. The Advocate-General is not a party to a lis' and has
no personal or pecuniary or proprietary interest in the matter. That is why the
Act uses the words person aggrieved' and not party aggrieved'. But he is heard,
not because he is a party, but because he represents the interest of the
profession and for the purpose of upholding its purity and the preservation of
correct standards and norms. From this point of view he will be an aggrieved
person when he finds. that the interests of the Bar, which is a matter of
public interest, is not properly safeguarded by the Disciplinary Committee. In
Attorney General of Gambia v. Pierre Saar N' Jie. (1961) A.C. 617 the Judicial
Committee construed the words person aggrieved' as not to be subjected to a
restrictive interpretation but to include a person who has a genuine grievance
because an order has been made which prejudicially affected his interest, and
that the words would include the Attorney General of Gambia as representing the
public interest. [927 E-F; 928 C-D, G-H;
929 G-H] (3) The decisions of the Judicial
Committee in AdvocateGeneral of Bombay v. Phiroz Barucha, 62 I.A. 235 and of
this Court in B. Nageshwara Rao v. The Hon'ble Judges of the Madras High Court,
[1955] 1 S.C.R. 1055 indicate that the Advocate General under the Bar Councils
Act, 1926 had locus standi to prefer an appeal. [925 D-E, G] 871
CIVIL APPELLATE JURISDICTION: Civil
Appeal.No. 2259 of 1969.
Appeal under s. 38 of the Advocate's Act,
1961 from the order dated October 26, 1969 of the Disciplinary Committee of the
Bar Council of India in D.C. Appeal No. 18 of 1968.
C. K. Daphtary, A. S. R. Chari, J. B.
Dadachanji, O. C. Mathur, Ravinder Narain and S. Swarup, for the appellant., V.
S. Desai and B. D. Sharma,, for respondent No. 1.
M. C. Bhandare and S. B. Wad, for Respondent
No. 2.
V. A. Seyid Muhammad and S. P. Nayar, for.
Attorney General for India.
A. V. Rangam, for Advocate-General for the
Tamil Nadu.
M. C. Setalvad, Rameshwar Nath, for Bar
Council of India.
O. P. Rana, for Advocate-General for the
State of U.P. A. G. Pudissery, for Advocate-General for the State of Kerala.
K. Baldev Mehta, for Advocate-General for the
State of Rajasthan.
A. P. S. Chauhan, A. D. Mathur and N. P.
Jain, for Bar Council U.P. Sukumar Ghose and G. S. Chatterjee, for the Advocate
General for the State of West Bengal.
P. Parmeswara Rao, for Advocate-General for
the Andhra Pradesh.
I. N. Shroff, for Advocate-General for the
State of Madhya Pradesh.
J. C. Medhi, Advocate-General for the State
of Assam and Naunit Lal, for the Advocate-General for the State of Assam.
HIDAYATULLAH, C.J., and MITTER J. on behalf
of SHELAT J.and himself delivered separate judgments. VAIDIALINGAM and RAY JJ.
delivered separate dissenting opinions.
Hidayatullah, C.J.I agree with the judgment
delivered by my brother Mitter but in view of the importance of the question
and the difference between my brethren I have chosen to express myself
separately.
872 We heard this appeal on a preliminary
point raised by the appellant that the appeal of the Advocate-General of
Maharashtra filed before the Bar Council of India was incompetent as the
Advocate-General did not fall within the expression a person aggrieved' to whom
alone is given the right of appeal under S. 37 of the Advocates Act of 1961,
against the orders of the Disciplinary Committee of the Bar Council of the
State.
The facts necessary to bring out the
controversy may be briefly stated. The appellant is an advocate from
Maharashtra. The Bar Council of the State of Maharashtra had called upon him
suo motu to show cause why he should not be held guilty of misconduct. It
appears that the appellant was convicted before a Summary Court in London on a
charge of pilfering some articles from departmental stores and sentenced to a
fine. The record of the proceedings in London was not before the Bar Council of
the State and action was taken on the basis of a brief report of the incident
in a newspaper. The appellant explained before the disciplinary committee of
the Bar Council of the State that he was the victim of a misunderstanding but
as he had no means of defending himself effectively, he was found guilty and
received a light sentence of fine. He explained how he had fallen into this
unfortunate predicament and did not know how to extricate himself. The order of
the Summary Court was not a speaking order and the proceedings were summary.
The disciplinary committee were satisfied that there was no reason to hold him
guilty of professional or other misconduct. They, therefore, ordered that the
proceedings be filed.
The Advocate-General of the State, who was
sent a notice of the proceedings, as is required by the second sub-section of
S. 35, and had appeared before the committee, purporting to act under s. 37 of
the Act filed an appeal before the Bar Council of India. It was heard by the
disciplinary committee of the Bar Council of India. The advocate objected that
the Advocate-General had no locus standi to file the appeal. The objection was
overruled and the appeal was accepted. The advocate was held guilty of
misconduct and suspended for a year from practice. The advocate now appeals
under s. 38 of the Act to this Court. His appeal raises questions of merit but
he contends at the threshhold that the Advocate-General was not competent to
file the appeal under s. 37 of the Act.
The point in controversy before the
disciplinary committee of the Bar Council of India and now before us, is a
short one. It is : whether the Advocate-General can be said to be a person
aggrieved' by the order of the disciplinary committee of the Bar Council of the
State Having heard this point in detail we took time to consider. I am of the
opinion that it must be held in favour 873 of the advocate and the order of the
disciplinary committee of the Bar Council of India, now under appeal before us,
must be: set aside on this short ground without going into the merits of
the-case.
Section 37 of the Advocates Act 1961 reads
"37. Appeal to the Bar Council of India.
(1) Any person aggrieved by an order of the
disciplinary committee of a State Bar Council made under section 35 may, within
sixty days of the date of the communication of the order to him, prefer an
appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the
disciplinary committee of the Bar Council of India which may pass such order
thereon as it deems fit." The expression a person aggrieved' is not new,
nor has it occurred for the first time in the Advocates Act. In fact it occurs
in several Indian Acts and in British Statutes for more than a hundred years.
In the latter a right of appeal to a person aggrieved' is conferred in diverse
contexts.
It occurs in the Ale House Act, the
Bankruptcy Acts, Copyright Act, Highway Act, Licensing Acts, Milk and Dairies
(Amendment) Act, Rating and Valuation Act, Summary Jurisdiction Act, Union
Committee Act, Local Acts, in certiorari proceedings and the Defence of Realm
Regulations to mention only a few. The list of Indian Acts is equally long.
As a result of the frequent use of this
rather vague phrase, which practice, as Lord Parker pointed out in Dealing Corporation
v. Jones(1), has not been avoided, in spite of the confusion it causes,
selections from the observations of judges expounding the phrase in the context
of these varied statutes were cited before us for our acceptance. The
observations often conflict since they were made in different contexts and
involved the special standing of the party claiming the right of appeal. Yet
these definitions are not entirely without value for they disclose a certain
unanimity on the, essential features of this phrase, even in the diversity of
the contexts. The font and origin of the discussion is the well-known
definition of the phrase by James L.J. in Re Sidehotham Ex. j. Side botham (2).
It was observed that the words person aggrieved' in s. 71 of the Bankruptcy Act
of 1869 meant :
" not really a person who is
disappointed of a benefit which he might have received, if some order had been
(1) L. R. [1959] 1 Q. B. D. 384.
(2) (1880) 14 Ch. D. 458 C. A 874 made. A
person aggrieved, must be a man who had suffered a legal grievance, a man
against whom a decision has been pronounced which had wrongfully deprived him
of something or wrongfully refused him something or wrongfully affected his
title to something." The important words in this definition are a benefit
which he might have received' and a legal grievance' against the decision which
wrongfully deprives him of something' or affects his title to something.
The definition was held in later cases to be
not exhaustive and several other features of the phrase were pointed out.
Thus under the Bankruptcy Acts, where the
Board of Trade summoned to support the validity of the appointment of a
trustee, went before the judge, and failed, it was considered a person
aggrieved' on the principle that a person who is brought before the Court to
:submit to its decision, but not a person who is heard in a dispute between
others must be treated as a person aggrieved' (see In Re Lamb Ex., p. Board of
Trade(1) per Lord Esher). Here again the words to notice are brought before
the-court to submit to its decision that, is to say, a person who is in the
nature of a party as contra-distinguished from a person who is next described
as a person who is heard in a dispute between others. To distinguish between
these two positions Ist may refer to a few more decisions. In In Re Kitson, Ex.
p. Sugden (Thomas) & Sons Ltd.(2), it was further explained that.
"the mere fact that an order is wrongly
made does not of itself give a grievance to a person not otherwise
aggrieved." (per Phillimore J.) It was added that a person deprived of the
fruits of litigation which he had instituted in the hope for them, is a person
aggrieved'. Similarly, a creditor who did not wish an adjudication order, to be
made was held not-to be a person aggrieved-See In Re Brown Ex. p. Debtor v.
Official Receiver(3). The utmost that this series of cases goes is to be found
in the observations of James L.J. in Ellis Ex. p. Ellis(4) that even a person
not bound by the order of adjudication must be treated as a person aggrieved'
if the order embarrasses him. In a later case (In Re Woods Ex. P. Ditton) (5)
Cotton L.J. held that even so the person must be aggrieved by the very order
and not by any of the consequences that ensue. This was clarified in R. v.
London County Keepers of the Peace and Justices(6), by Lord Coleridge C.J.
while (1) [1894] 2 Q. B. D. 805 at 812.
(3) [1943] Ch. D. D. 177.
(5) [1879] 40 L. T. 297 C.A. 79..
(2) [1911] 2 K. B. 100 at 112-114.
(4) [1876] 2 Ch. D. 707.
(6) [1890] 20 Q. B. D. 357 at 361.
875 dealing with the Highway Act, denying the
right of appeal in these words "Is a person who cannot succeed in getting
a conviction against another a person aggrieved ? He may be annoyed at finding
that what he thought was a breach of the law is not a breach of law; but is he
aggrieved because someone is held not to have done wrong ? It is difficult to
see that the section meant anything of the kind. The section does not give an
appeal to anybody but a person who is by the direct act of the Magistrate
aggrieved-that is who has had something done or determined against him by the
Magistrate." These observations again show that the person must himself
suffer a grievance, or must be aggrieved by the very order because it affects
him.
Two cases which may usefully be seen in the
same context may next be mentioned. In Jennings v. Kelly(1) in relation to the
Government of Ireland Act 1920, Lord Wright did say that if a person was
treated in certiorari proceedings as a competent party and notice was served on
him as being a proper party he would be a person aggrieved.' The point to bear
in mind is that the person must be treated as a party.
However the force of the observation was
considerably weakened because the party there was ordered to pay costs and the
right of appeal was held to be available on that limited ground. Further
qualification is to be found in Re Riviere (1884) 26 Ch. D. 48 where Lord
Selborne observed pro rationed voluntas; the applicant must not come merely
saying I do not like this thing to be done, it must be shown that it tends to
his injury or to his damage, in the legal sense of the word." The locus
standi of the person aggrieved must be found from his position in the first
proceeding and his grievance must arise from that standing taken with the effect
of the order on him.
These cases are of course far removed from
the one before me and as Branwell L.J. observed in Robinson v. Currey(2) the
expression is nowhere defined and, therefore, must be construed by reference to
the context of the enactment in which it appears and all the circumstances. He
pointed out that the words are ordinarily English words, which are to have the
ordinary meaning put upon them., (1) [174] A. C. 206.
(2) [1881] 7 Q. B. D. 465, 470. C. A. 876
From these cases it is apparent that may person who feels disappointed with the
result of the case is not a Person aggrieved. He must be disappointed of a
benefit which he would have received if the order had gone the other way.
The,-order must cause him a legal grievance
by wrongfully depriving him of something. It is no, doubt a legal grievance and
not a grievance about material matters but his, legal grievance must be a
tendency to injure That the order is wrong or that it acquits someone who he
thinks ought to be convicted does not by itself give rise to a legal grievance.
These principles are gathered from the cases cited and do not, as I shall show
later, do violence to the context in which the phrase occurs in the Advocates Act.
Although I am aware that in Seven Oaks Urban District Council v. Twynham(1)
Lord Hewart C.J. uttered words of caution, again emphasised by Lord Parker C.J.
in Ealing Corporation v. Jones(2), in applying too readily the definitions
given in relation to other statutes but I do not think I am going beyond what
Lord Hewart C.J. said and what Lord Parker C.J. did in the case. Lord Parker
observed ".... As Lord Hewart C.J. pointed out in Seven Oaks Urban
District Council v. Twynam : But as has been said again and again there is
often little utility in seeking to interpret particular expressions in one
statute by reference to decisions given upon similar expressions in different
statutes which have been enacted alio intuitu. The problem with which we are
concerned is not, what is the meaning of the expression aggrieved' in any one
of a dozen other statutes, but what is its meaning in this part of this statute
?' Accordingly, I only look at the cases to which we have been referred to see
if there are general-principles which can be extracted which will guide the
court in approaching the question as to what the words person aggrieved' mean
in any particular statute." If I may say respectfully I fully endorse this
approach. I am now in a position to examine the Advocates' Act but before so I
must refer to a case near in point to this case, than any considered before.
The case is reported in Attorney General of
Gambia v.
Pierrie Saar N'jie(3). A legal practitioner
was held guilty of professional misconduct but was acquitted on appeal and an
appeal was taken to the Judicial Committee against the decision of the West
African Court of Appeal. This involved consideration of (1) [1929] 2 K. B. 440,
443.
(3) [1961] A. C. 617.
(2) L. R. [1959] 1 Q. B. D. 384.
877 whether the Attorney General could be
said to be a person aggrieved'. The facts need to be stated a little fully as
both sides rely upon the observations of Lord Denning and they need to be
explained carefully.
A barrister (a member of the English Bar) and
also a Solicitor (the two professions appear to be united in the Gambia) practicing
in the Supreme Court of the Gambia was charged with professional misconduct and
an order was made, September 22, 1958, by the Deputy Judge (Abbot J.) striking
off his name from the roll of that Court, and directing that the matter be
reported to the Masters of the Bench of his Inn. On June 5, 1959 the West
African Court of Appeal (Bairamian, Ag.P, Hurley Ag. J.A. and Ames Ag. J.A.)
set aside the order on the ground that the Deputy Judge had no jurisdiction.
The Attorney General of the Gambia thereupon sought leave to appeal to Her
Majesty in Council but this was refused. Then a petition was made for. special
leave.
Special leave was granted subject to the
preliminary objection by the respondent that no appeal lay at the instance of
the Attorney General. The preliminary objection was rejected.
Section 31 of the West African (Appeal to
Privy Council) Order in Council 1949 under which special leave was asked reads
:
,Nothing in this order contained shall be
deemed to interfere with the right of His Majesty upon the humble petition of
any person aggrieved by any judgment of the court, to admit his appeal
therefrom upon such conditions as His Majesty in Council shall think fit to
impose.
In the Gambia disciplinary jurisdiction over
barristers and solicitors is embodied in Rules of the Supreme Court 1928. Under
those rules the Supreme Court' Judge (and there is only one) admits and enroll
barristers and solicitors of the Court, and Schedule I, Order 9, r. 7 says that
:"The Judge shall have power, for reasonable cause, to suspend any
barrister or solicitor from practising within the jurisdiction of the court for
any specified period, or order his name to be struck off the roll of
court." Then there is the West African Court of Appeal and it hears
appeals from the Supreme Court' in civil and criminal matters. In an earlier
case in which a certain Mr. Mccauley was struck off the roll of the Supreme
Court of Sierra Leone and Mr. Mccauley sought to appeal to. the Full Court of
West Africa it was ruled 878 by the Full Court that the decision of the Chief
Justice was not a decision of the Supreme Court' and was, therefore, not appealable
and that the only remedy was to obtain special leave to appeal to the Privy
Council (see W. E. A.
Mccauley' v. Judges of the Supreme Court of
Sierra Leone and Anr.(1). The legislature' then added s. 14 which provided:
"An appeal shall lie to the Court of
Appeal from any order of the judge suspending a barrister or solicitor of the
Supreme Court from practice or striking his name off the roll, and for the
purposes.of any such appeal any such order shall be deemed to be an order of
the Supreme Court." The words of the section show that the legislature did
not regard a decision in disciplinary matters as a judgment of a court but only
deemed it to be so.
The Full Court on the appeal of N'Jie from
the order of the Deputy Judge held that a Deputy Judge could not deal with any
matter which was not a proceeding in the court in the exercise of judicial
power. The Judicial Committee held that this was exercise, of judicial power.
Then the preliminary objection was considered. The objection was that the Attorney
General had no locus standi not being a person aggrieved. This was overruled by
the Judicial Committee.
Lord Denning referred to the definition of
James L.J. in In Re Sidebotham Ex. p. Sidebotham,(2) and said that if the
definition were to be regarded as exhaustive and were held applicable, an
aggrieved person' would be only a person who was a party to a lis, a
controversy inter partes and had a decision given against him. The Attorney
General would not come within this restricted definition as there was no suit
between two parties when disciplinary proceedings were started ex mero motu by
the court or at the instance of the Attorney General or someone against a legal
practitioner.
But the definition of James L.J. was not
exhaustive and the words person aggrieved, were of wide import and should not
be subjected to a restricted interpretation. They included not a busy body but
certainly one who had a genuine grievance because an order had been made which
prejudicially affected his interests. Posing the question did the Attorney
General have a sufficient interest', the Judicial Committee answered he had.
The Attorney General in a Colony represented the Crown as the guardian of
public interest and it was his duty to bring before the Judge a case of misconduct
to warrant action. Then Lord Denning proceeded to distinguish two kind-, of
cases to determine if the Attorney General would be a person aggriev(1) L. R.
[1928J A. C. 344.
(2) [1880] 40 Ch. D. 458 (C. A.) 879 ed.' The
first was a case where the judge acquitted the practitioner. In such a case no
appeal was open to the Attorney General under the Supreme Court Ordinance, and
Lord Denning added "He has done his duty and is not aggrieved".
In other words, he did not come within the
words of the 31st section of the Order in Council. The Attorney General could
not, therefore, ask for special leave as a person aggrieved'. But the case was
different if the judge found the practitioner guilty and a Court of Appeal
reversed the decision on a ground which went to the root of the jurisdiction of
the judge or was otherwise a point in which the public interest was involved.
In that case the Attorney General was a person aggrieved'.
The observations of Lord Denning clearly
meant that the Attorney General could not pose as a person aggrieved' to seek
to bring a simple case of acquittal for reversal by the Judicial Committee
under the 31st section of the Order in Council for he could not be regarded as
a person aggrieved'. The remark was made perhaps to repel an argument that
every case of acquittal would make the Attorney General an aggrieved person'.
Lord, Denning said that this was not the true position. The Attorney General
could only move the judge and there his duty ended. The law gave him no express
right of appeal and he could not claim to be a person aggrieved'. He could only
invoke the 31st section if he could make out his grievance and it was found to
be as a person representing the Crown and the guardian of public interest
seeking to get reversed a decision which struck at the root of the jurisdiction
of the disciplinary judge, by denying that the Deputy Judge was exercising
judicial power under s. 7 of the Supreme Court Ordinance.
The Crown was aggrieved by this decision and
the, Attorney General representing the Crown was an-aggrieved person.
The scheme of the law under which the
disciplinary action was taken and the appeal to the Privy Council was brought
gave the true connotation of the expression person aggrieved'. In those cases
in which no question of public interest was involved the Attorney General even
if he had moved the judge and got an adverse decision could not be regarded as
aggrieved but in a case in which, apart from the merits of the case against the
practitioner, some grave I question of public importance was involved, the
Attorney General representing the Crown could be regarded as. a person
aggrieved'.
It was presumably after reading this case and
understanding it as I have done, that the Advocate-General set about making 880
out a question of public importance. He did not seem only to get the decision
overturned on facts. This is what he said :
"The appellant has filed this appeal as
the Advocate General of Maharashtra. Under the Advocates Act, 1961, (as under
the Indian Bar Councils Act, 1926), the Advocate General represents the public
interest in every disciplinary inquiry. Under sec. 35 of the Advocates Act,
1961, the Advocate General is entitled to notice in respect of every
disciplinary inquiry, is entitled to have an opportunity of being heard before
the disciplinary committee passes any order. This appeal raises very important
questions of principle as regards the effect of a conviction of an Indian
Advocate of an offence recognised by all civilised countries as an offence
involving moral turpitude. The question raised also related to the requirements
of natural justice in a criminal court, and the effect of the judgments of the
Supreme Court on the subject. It raises the further question whether an Indian
Advocate convicted of an offence involving moral turpitude by a Court outside
India is immune from disciplinary action because a minor differences of
procedure in such countries where such trial has been held, in complete accord
with principles of natural justice. The profession of an advocate is an
honourable profession and the disciplinary provisions of the Advocates Act are
designed to secure that per guilty of offences involving moral turpitude are
subject to appropriate disciplinary action." It is obvious that the
Advocate-General has attempted to use the observations of Lord Denning in the
Gambia case and wishes to plead that he enjoys a special position in the Bar
and under the Advocates Act and therefore is entitled to appeal as a ' person
aggrieved'. This was the line adopted by Mr. M. C. Setalvad, counsel for the
Bar Council of India.
On the other band, Mr. V. S. Desai appearing
for the Advocate General argued that the Advocate-General having notice of
disciplinary proceedings, in any event, must be treated as a person aggrieved'
within ss. 35 and 38 of the Advocates Act. I shall consider the narrow question
presented by Mr. Setalvad latter. I shall first take up for consideration the
larger question and the more general ,application of the expression person
aggrieved.-, In support of his contention Mr. V. S. Desai cited three cases
from this Court, one from the Judicial Committee and one from the Bombay High
Court. They all relate to disciplinary proceedings and I may begin by
considering them.
881 The case of the privy Council reported in
Advocate General of Bombay & Ors. v. Phiroz Rustamji Bharucha (1) was next
cited. It was an application for special leave by the Advocate General of
Bombay in a proceeding relating to professional misconduct of an advocate. The
standing of the Advocate General was questioned. The report in the Bombay Law
Reporter Series(2) reproduces more fully the arguments than. the official
report and we were referred to the arguments. The point was not debated and
there does not appear to be a pronouncement on this point either during the
course of argument or in the judgment since special leave was refused on
another ground. Mr. Desai says that if the Judicial Committee had found
substance in this objection they would have ruled out the Advocate General on
this ground alone. There is no reason to think that the objection was
considered at all. I cannot derive any assistance from this ruling because the
prerogative of the Crown to grant special leave as of grace in any case was
always there irrespective of the standing of the Advocate General. The Privy
Council often granted special leave and even heard appeals on certificates
wrongly granted. (See Sevak Jeranchod Bhogilal v. Dakore Temple Committee(2)
and the cases collected in Halsbury Laws of England (3rd Edn.) Vol. 9 p. 380
paragraph 886 note (h). This prerogative the Judicial Committee has exercised
on behalf of the Crown particularly in cases of general interest see ibid p.
379 s.
885 note (s). The provisions of the former s.
112 of the Code of Civil Procedure show the extent of the prerogative.
Therefore. because the Privy Council refused
special leave on one ground rather than another cannot import a rejection of
the objection as to the standing of the Advocate General.
Next we have an unreported decision of a
Division Bench of this Court reported in B. M. Madani v. Commissioner of Workmen's,
Compensation. Bombay(3). In that case the anneal was taken by the Commissioner
for enhancement of penalties against the delinquent advocate and the penalty
was in fact increased. This Court held that he was entitled to do so as a
-person aggrieved. The Particular misconduct was committed in relation to a
claimant before the Commissioner.
The Advocate had pocketed the travelling
allowance granted by the Commissioner to the widow of a deceased workman.
There may be some doubt whether the
Commissioner was a person aggrieved' by the Denalty imposed in the first
instance but I do not pursue this matter. The case can be justified on the
dictum in some cases that a party which moves the court or a Person brought
before the court to be bound by its order May be a person aggrieved., See for
example the case of the Official Receiver in Re Payne Ex p.
Castle Mail Packets (1) 37 Bom. L. R. 722
(PC) (2) A. I. R. 1915 P. C.
155.
(3) C. A. 877 of 1968 decided on October 10,
1968.
69Sup.CI(P)71-12 882 Co.(1), and In Re Lamb
Ex. p. Board of Trade already considered by me. Madani's case does not help to
resolve the dispute centering round the Advocate-General.
The next case is reported in Bhataraju
Nageshwara Rao v. The Hon'ble Judges of the Madras High Court and others(2).
That case arose under the Bar Councils Act,
1926 when the Judges exercised disciplinary power. In the case before the
Supreme Court the Judges of the Madras High Court were shown as respondents.
This Court observed at page 1064 as follows "Before parting with this
appeal we desire to say that it appears to us that it was wholly wrong and
inappropriate for the appellant to have made the Honourable Judges of the
Madras High Court respondents to this appeal. It appears that in some cases
involving contempt of Court the Honourable Judges have been made parties. It is
not necessary for us to express any opinion on this occasion as to the
propriety of that procedure in contempt cases but we are clearly of the opinion
that in an appeal arising out of a proceeding under the Bar Councils Act the
appropriate parties should be the advocate concerned, the complainant, if any,
the Bar Council or the secretary thereof and the Advocate General of the State
concerned to whom notice have to be issued under section 12(3) of the Indian
Bar Councils Act." This does not advance the case of the Advocate General
of Maharashtra any further.
The last case of this Court is Municipal
Corporation of the City of Bombay v. Chandulal Shamaldas Patel and Ors.(8). In
land acquisition cases started for the benefit of the Municipal Corporation
certain notifications issued under the Land Acquisition Act were set aside by
the High Court, and the Municipal Corporation sought to appeal. It was held not
to be a person grieved'. This case, even if I were toaccept it as correctly
decided, does not assist us in relation to our Act passed with a different
intent and purpose and using the words in another context.
The last case is from Bombay but it did not
discuss the point and cannot be held to have laid down a precedent. It is
useless to refer to it.
I now proceed to examine the larger question
whether by reason of the provisions of the Advocates Act the Advocate General
of the State enjoys such position that he must necessarily be treated (1)
[1886] 18 Q. B. D. 154 C. A. (2) [1955] 1 S. C. R. 1055.
(3) C. A. No. 1716 of 1967 decided on August
1, 1970.
883 as a person aggrieved entitling him to
file an appeal For this purpose we have to examine critically the provisions of
the Act to discover if the claim can be entertained.
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. It replaced the earlier Acts
governing the legal profession particularly the Indian Bar Councils Act 1926.
Prior to the passing of the Advocates Act, the enrollment and discipline of
legal practitioners was in the hands of the courts and in the case of the
advocates the High Court entertained and determined cases of misconduct against
them. Now this jurisdiction is completely transferred to the Bar Councils of
the States and the Bar Council of India. In the Bar Councils of the States
(except Delhi) the Advocate-General of the State is an ex officio member. In
Delhi the Additional Solicitor-General takes the place of the Advocate-General.
Other members are elected. In the Bar Council of India, the Attorney-General
and the Solicitor General are ex officio members and the other members are
elected one each by the State Bar Councils. In the Union Territory of Delhi the
Additional Solicitor-General is ex officio member. The functions of the
Advocate-General are not different from those of the other members in so far as
the affairs of the Bar Council are concerned. The only matters where the
Advocate-General, the Attorney-General and the Solicitor-General and the Additional
Solicitor-General are mentioned are these. The Act gives a right of pre audience
over other advocates to the Attorney-General, the Solicitor-General, the
Additional Solicitor-General and the Advocate-General. The right of
pre-audience gives them a standing for hearing of cases but does not confer on
them any other rights. The magniloquent phrases such as Leader of the Bar,
Keeper of the Conscience of the Bar have no meaning neither now, nor before
under the Bar Councils Act of 1926. They are just honorific titles given by
courtesy but are not grounded on law. Indeed the Keepers of the Conscience of
the Bar are the Bar Councils and the Leader of the Bar may be someone who may
even have refused to accept Advocate-Generalship.
The functions of the Bar Councils of the
States and the Bar Council of India throw some light on the remaining functions
of the Advocate-General and may first be seen. Section 6 of the Act lays down
the functions of the State Bar Council and s. 7 those of the Bar Council of India.
Apart from certain administrative functions. which these councils, which, are
bodies corporate, perform, their functions in relation to the Bar are somewhat
different. Both have their own rolls and they prepare and 884 maintain the
rolls. The State Bar Council entertains and determines cases of misconduct of
advocates oil its roil and safeguards the rights, privileges and interests of
advocates on its roll. The Bar council of India lays down the standards of
professional conduct and etiquette of, advocates, the procedure to be followed
by its disciplinary committee and the disciplinary committee of each of the
State Bar Councils. The Bar Council of India also safeguards the rights and
privileges and interests of advocates and exercises general supervision and
control over State Bar Councils. It also deals with and disposes of any matter
arising under the Advocates Act which may be referred to it by a State Bar
Council. There are other functions which relate to the education etc. of those
who wish to join the legal profession. The Bar Council of India maintains a
common roll of advocates. The Bar Councils also decide in relation to their
rolls all questions of seniority. The State Bar Councils and the Bar Council of
India constitute one or more disciplinary committees and under Chapter V
questions of the conduct of advocates on their respective rolls are referred to
them. The disciplinary committee of the Bar Council of India exercises superior
powers inasmuch as it hears appeals from the orders of the disciplinary
committees of the State Bar Councils and may even of its own motion withdraw
for inquiry before itself for disposal, any proceeding for disciplinary action
against an advocate pending before the disciplinary committee of any State Bar
Council.
The disciplinary proceedings commence both
before the State Bar Council and the Bar Council of India on a complaint or
otherwise made respectively to the State Bar Council or the Bar Council of
India. The Bar Councils in either case refer them for disposal to their
respective disciplinary committees. The disciplinary committee in each case can
reject the complaint summarily, but if it proceeds to hear the matter further
it causes a notice thereof to be sent to the advocate concerned and to the
Advocate-General of the State or the Attorney-General of India, as the case may
be.
The disciplinary committee after giving the
advocate concerned and the Advocate-General or the, Attorney General, as the case
may be, an opportunity to be heard" makes an order either dismissing the
complaint or where the proceedings are found to be not fit for consideration
and are started at the instance of the Bar Council, ordering that they may be
filed. The committee may, if the advocate is found guilty, reprimand him or
suspend him from practice for such period as it deems fit, or may remove him
altogether from the roll of advocates. The Advocate-General or the
Attorney-General, as the case may be, need not appear personally but may appear
through an advocate.
885 From the decision of the disciplinary
committee of the State Bar Council an appeal lies to the bar Council of India
which is heard by the disciplinary committee of the Bar Council of India which
may pass such orders thereon as it deems fit. From the decision or the
disciplinary committee of the Bar Council of India an appeal lies to this
Court.
The appeals can be taken by a ' person
aggrieved' by the order of the disciplinary committee of tile State Bar Council
or the Bar Council of India, as the case may be. It is in this context that we
have to determine whether the Advocate-General can be regarded as a person
aggrieved'.
In view of the common roll maintained by the,
Bar Council of India it appears to me that if anybody represents the Bar it
would be the Bar Council of India and in the case of the States, the Bar
Council of the, State. The Advocate-General has no right to speak on behalf,,
of the body of the advocates as if he represented them and their interests.
Neither is this privilege expressly conferred
on him, nor can it be implied from any of the provisions of the Act.
The question, therefore, arises: in what
capacity does the Advocate-General appear before a disciplinary committee ? It
is obvious that he is not a prosecutor on behalf of the Bar Council because if
he was one, his presence would be more necessary at the stage at which the
disciplinary committee considers in limini to decide whether the matter should
be proceeded with at all. The next question is : why is he summoned at all ? In
my opinion, the Advocate-General is not noticed and brought before the court
because he is a prosecutor or is to be bound by the order of the disciplinary
committee. He represents no interest there and is heard merely because he is
the chief counsel of the State and therefore his assistance at the hearing is
useful. The fact that he need not appear by himself and may appear through an
advocate renders his position a little weaker in the matter of his grievance If
he is to be treated as a person aggrieved' he must argue the case himself. The
fact that he appears through a counsel shows that the intention is merely to
have the opinion of a person who is neither siding with the complainant nor
with the advocate and who will thus have unbiased and impartial approach to the
case. The Advocate-General is generally a lawyer of some standing having made a
mark in the profession and his contribution to the deliberations of the
disciplinary committee is welcome because thus the disciplinary committee is
helped to reach a proper conclusion.
If he is not a person summoned to be bound by
the order but a person who is heard in a dispute between others merely to be of
assistance in reaching the right conclusion he can hardly have a grievance. The
Advocate-General must after he has done his duty leave the matter to the
complainant and the advocate or the 886 Bar Council to take the matter further
if they choose. In no event the Advocate-General is in the nature of a party
having independent rights which he can claim are injured by the decision. The
decision does not deny him anything nor does it ask. him to do anything. It is
thus that Lord Denning says that in these disciplinary proceedings the
Attorney-General is not' a party as in a lis and after the decision, his duty
ends. Lord Denning points this out clearly by saying that the Attorney-General
in that case could not have been aggrieved by the order of the Deputy Judge if
he had acquitted the delinquent advocate in that case The Attorney-General's
interest was found by Lord Denning in relation to the Crown and the Colony and
that too for the special reason that appeal court had denied that the Deputy
Judge possessed jurisdiction to hear the case.
In our country the Advocate-General does not
represent the Executive or the Legislature or the Judiciary in.
disciplinary proceedings before the
disciplinary committee.
His function is advisory and more akin to an
amicus curiae He is not to take sides except in so far his arguments lend
weight to the case of the one side or that of the other.
Beyond that he is not interested in the
dispute either in his personal capacity or in his capacity as an Advocate General.
He does not represent the Government in these proceedings. If the Government
was interested the notice would have gone to it. In other statutes, where the
Central Government is vitally interested, as for example, in the Chartered
Accountants Act, the notice does not go to the Advocate-General but to
Government and the government appears through the Advocate-General. The
Advocate-General under the Act finishes his duty when the hearing is over and
he cannot be considered to be a party interested or a person aggrieved'. I do
not find anything in the Act which indicates that the Advocate-General is to be
treated as a person aggrieved' by a decision whether in favour of the advocate
or against him. Indeed it would have been the easiest thing to give a right of
appeal to the Advocate General of nomine without including him in the
compendious phrase a person aggrieved'. If he is not noticed, the order would
be held to deny him something which the law entitled him to. That is quite
different. The larger proposition contended for by Mr. Desai is therefore not
acceptable to me.
This brings me to the narrow ground on which
Mr. Setalvad very properly rested the case of the Bar Council of India.
That narrow ground is that in this case there
were several Points of general public interest which needed to be solved and
therefore, if the decision of the disciplinary committee of the State Bar
Council was wrong, the Advocate-General in the public interest could take the
matter further. I do not think that I can subscribe to this approach either in
this case. The Advocate-General presented his views that a conviction in
England showed moral turpitude 887 in the advocate. I do not think that this
inference necessarily follows. The advocate explained that he was held guilty
in a summary court and received a small fine because he was not in a position
to prove his innocence before the Magistrate.
Now in disciplinary proceedings the advocate
was not estopped from questioning the charge that be was guilty of corrupt
practice. In a civil proceeding the decision of a criminal court is not res
judicata. To give an example, if a person is involved in a traffic offence in
which someone is injured he may in the criminal court receive a light sentence
but if he is sued in a civil court for heavy damages he pan plead. and prove
that he was not negligent or that accident was due to the contributory
negligence of the defendant. The decision of the criminal court would not
preclude him from raising this issue before the civil court.
The advocate here explained that he was held
guilty before the Magistrate in the circumstances in which he was placed.
The. fact of his conviction, as well as his
full statement bearing on his conduct were before the disciplinary committee of
the State Bar Council. They had to choose between the two, that is to say, the
result of a summary trial Without going into merits and proof of the
misconduct.
Having examined the advocate and seen the
record, the disciplinary committee of the State Bar Council chose to accept the
plea of the advocate and held that he was not guilty. They were also satisfied
that the summary proceedings in the criminal trial in England offended against
the principles of natural justice. They were entitled to this view on which
much can be said on both sides. If the Advocate-General's view of the case was
not accepted by the disciplinary committee he could not have any grievance. He
could not make this into his own cause or a cause on behalf of persons he did
not represent. He had done his duty and the matter should have rested there.
For this reason I am of the view in this case the Advocate General was not a
person aggrieved, within the meaning of s. 37 of the Advocates Act even on the
narrow ground and the appeal filed by him before the disciplinary committee of
the Bar Council of India was incompetent.
The conclusion which I have reached does not
mean that I have gone into the merits of the advocate's plea. Nor does it
indicate that 1, sitting as a judge. would have accepted the plea of the
advocate, if I were to decide the ease on facts. That is a matter quite beside
the point. I refer to the plea because it was raised and was accepted by his
peers on the' disciplinary committee.
I would. therefore, allow the appeal and set
aside the order of the disciplinary committee of the Bar Council of India.
888 Mitter,J. On the basis of a news item in
the Times of India of August 27, 1966 the Bar Council of Maharashtra in
exercise of its powers under S. 35 of the Advocates Act, 1961 issued a notice
to the appellant to face an inquiry into his conduct by its disciplinary
committee. The said committee exonerated the appellant of the charge levelled
against him and held that he was not guilty of any misconduct, professional or
otherwise. Relying on the provisions of S. 37 of the said Act the
Advocate-General of Maharashtra who had appeared before the said committee
preferred an appeal to the Bar Council of India. The Disciplinary Committee of
the Bar Council of India disagreed with the finding of the disciplinary
committee of the Bar Council of Maharashtra observing that the conduct of the
appellant which was investigated into before the State Bar Council was quite
undeserving of an advocate and directed his suspension from practice, for a
period of one year. The appellant has come tip in appeal to this Court, and has
urged a preliminary point that the appeal by the Advocate General to the Bar
Council of India was incompetent and the finding and order of the disciplinary
committee of the said body ought to be set aside on that ground alone without
our going into the facts of the case.
Notice of this hearing was given to the
Advocates-General and the Bar Councils of all the States as also the Attorney General
of India and we have had the benefit of arguments advanced before us not only
on of the Advocate-General for the State of Maharashtra but also' on behalf of
the Bar Council of India, the Attorney-General of India and some of the
Advocates-General of the States.
The determination of this question depends on
the interpretation of S. 37 of the Advocates Act, 1961 (hereinafter referred to
as the Act') "(1) Any person. aggrieved by an order of the disciplinary
committee of. a State Bar Council made under section 35 may, within sixty days
of the date of the communication of, the order to him, prefer an appeal to the
Bar Council of India.
(2) Every such appeal shall be heard-by the
disciplinary committee of the. Bar Council of India which may pass such order
thereon, as it deems fit." To put the matter in a nut-shell the question
is, "Is the Advocate-General of a State who appears before the
disciplinary committee of a State Bar Council in pursuance of a notice given'
to him under s. 35(2) of the Act a person aggrieved' within the meaning of the
words used in s. 37 ?".
889 To decide this question we have to look
into the Act to find out the role of the Advocate-General of a State in
proceedings of this kind. The object of the Act is to amend and consolidate the
law relating to legal practitioners and to provide for the constitution of Bar
Councils and an AllIndia Bar. All the States and the Union territories are to
be under the jurisdiction of named State Bar Councils and there is also to be a
Bar Council of India for the territories to which the Act is extended.
Generally speaking a State Bar Council is to consist of a number of members
including the Advocate-General of the State ex officio, while the
Attorney-General of India ex officio is to be a member of the Bar Council of
India. The other members of the Bar Councils are to be elected in terms of the
Act. Under s. 6 the functions of a State Bar Council are to be inter alia (a)
to admit persons as advocates on its roll;
(b) to prepare and maintain such roll;
(c) to entertain and determine cases of
misconduct against advocates on its rail.
S. 7 lays down the functions of the Bar
Council of India which are to be inter alia :
(a) to prepare and maintain a common roll of
advocates:
(b) to lay down standards of professional
conduct and etiquette for' advocates; and (c) to lay down the procedure to be
followed by its disciplinary committee and the disciplinary committee of each
State Bar Council.
Under s. 9 a Bar Council has to constitute
one or more disciplinary committees each of which is to consist of three persons
of whom two are to be persons elected by the Council from amongst its members
and the third is to be a person co-opted by the Council from amongst advocates
possessing the qualifications specified in the proviso to sub-s.(2) of s. 3 but
is not a member of the council. S. 15 empowers Bar Councils to make rules to
carry out the purposes of the Act. Chapter III of the Act containing ss.
16 to 28 provides for admission and
enrollment of advocates.
the determination of their seniority etc. The
right of an advocate to practice is dealt with in Chapter IV. Chapter V which
contains ss. 35 to 44 deals with conduct of advocates.
The relevant provisions thereof are set out
as under"35(1) 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 890 other misconduct, it shall refer the case for disposal to
its disciplinary committee.
(2) The disciplinary committee of a State Bar
Council, if it does not summarily reject the complaint. shall fix a date for
the hearing of the case and shall cause a notice thereof to be given to the
advocate concerned and to the Advocate-General of the State.
(3) The disciplinary committee of a State Bar
Council after giving the advocate concerned and the Advocate-General an
opportunity of being heard, may make any of the following orders, namely:(a)
dismiss the complaint or, where the proceedings were initiated at the instance
of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for
such period as it may deem fit;
(d) remove the name of the advocate from the
State roll of advocates.
(4) . . . . . .
(5) Where any notice is issued to the
Advocate General under sub-section (2) the Advocate-General may appear before
the disciplinary committee of the State Bar Council either in person or through
any advocate appearing on his behalf.
37. Supra.
38. Any person\aggrieved by an order made by
the disciplinary committee of the Bar Council of India under section 36 or
section 37 may, within sixty days of the date on which the order is
communicated to him, prefer an appeal to the Supreme Court and the Supreme
Court may pass such order thereon as it deems fit." S.42 gives the
disciplinary committee of a Bar Council the same powers as are vested in a
civil court under the Code of Civil Procedure in respect of various matters
including the summoning and enforcing the attendance of any person and
examining him on oath, requiring discovery and production of documents etc. and
under sub-s. (2) all proceedings before a disciplinary committee of a Bar
Council are to be deemed judicial proceedings within the meaning of sections
193 and 228 of the Indian Penal 891 Code. S. 43 empowers the disciplinary
committee of a Bar Council to make such order as to costs of any proceedings
before it as it may deem fit. S. 44 gives the disciplinary committee power to
review any order passed by it of its own motion or otherwise.
The above provisions of the Act make it clear
that subject to a right of appeal to this Court under s. 38 the inquiry into
charges of misconduct against an advocate are to be in the exclusive
jurisdiction of the Bar Councils. Any complaint against the conduct of an
advocate has to be preferred before a State Bar Council and when the council
has reason to believe on the strength of such complaint that an advocate on its
roll has been guilty of professional or other misconduct, it has to refer the
case for disposal to its disciplinary committee. The council can take such a
step of its own motion. Section 35(1) shows that it is not obligatory on the
State Bar Council to refer each and every complaint to the disciplinary
committee. It has to be satisfied that there is a prima facie case for
investigation,. It can throw out a complaint if the same appears to be
frivolous. Sub-s. (2) of s. 35 shows that it is not incumbent on the
disciplinary committee of a State Bar Council to proceed further with the
matter if it takes the view that the complaint is without substance. It is not
obliged to call upon the advocate concerned to. explain his conduct or to
inform the Advocate-General that it has rejected the complaint summarily. It is
only when the disciplinary committee is satisfied that the complaint ought not
to be rejected out of hand that it has to fix a date for the hearing of the
case and give notice thereof to the advocate concerned and to the
Advocate-General of the State.
It is mandatory on the disciplinary committee
to give such a notice to both. Sub-ss. (3) and (5) of s. 35 go to show that it
is not incumbent on the Advocate-General to appear at the hearing and that it
is within his discretion to appear either by himself or through another
advocate of his choice and place his viewpoint before the disciplinary
committee. He is not a party to the proceedings but he has a right to appear
and to make submissions both on questions of fact and questions of law.
S. 3 7 does not in terms lay down who can
prefer an appeal from the order of the disciplinary committee of the State Bar
Council. There can be no doubt that the advocate against whom an order is made
would be a person aggrieved.
The State Bar Council cannot be such a person
as the order is made by itself acting through its disciplinary committee. A
member of the public may make a complaint to the State Bar Council against an
advocate on the ground of loss or damage or any serious Prejudice caused to him
by the advocate, be it negligence or fraud e.g. collusion with the opponent or
misappropriation of 892 any moneys belonging to him and there does not seem to
be any justifying cause for holding that he is not a person aggrieved by an
order which dismisses his complaint.
The question arises as to whether the
Advocate-General is a person aggrieved because the disciplinary committee does
not take the same view of the matter as himself, be it for or against the
advocate. To place the Advocate-General in the category of "person
aggrieved' one must be able to say that the disciplinary committee committed an
error which it was his duty to attempt to set right because of some function
attributable to him as the Advocate-General or some obligation cast upon him by
the Act or the general law of the land to safeguard and maintain standards of
conduct of advocates laid down by the Bar Council of India.
Generally speaking, a person can be said to
be aggrieved by an order which is to his detriment, pecuniary or otherwise or
causes him some prejudice in some form or other. A person who is not a party to
a litigation has no right to appeal merely because the judgment or order
contains some adverse remarks against him. But it has been held in a number of
cases that a person who is not a party to suit may prefer an appeal with the
leave of the appellate court and such leave would not be refused where the
judgment would be binding on him under Explanation 6 to section 11 of the Code
of Civil Procedure. We find ourselves unable to take the view that because a
person has been given notice of some proceedings wherein he is given a right to
appear and make his submissions, he should without more have a right of appeal
from an order rejecting his contentions or submissions. An appeal is a creature
of statute and if a statute expressly gives a person a right to appeal, the
matter rests there.
Innumerable statutes both in England and in
India give the right of appeal to "a person aggrieved" by an order
made and the provisions of such statutes have to be construed in each case to
find out whether the person preferring an appeal falls within that expression.
As was observed in Robinson v. Currey(1) the words "person aggrieved"
are ordinary English words which are to have the ordinary meaning put upon
them'. According to Halsbury's Laws of England (Third Edition, Vol. 5) page 29
foot-note "h" "The expression is nowhere defined and must be
construed by reference to the context of the enactment in which it appears and
all the circumstances (1) 7 Q. B D. 465.
993 Attempts have however from time to time
been made to define the expression in various cases. In Ex parte Sidebotham In
re Sidebotham(1) it was observed by James, L.J.
"But the words Person aggrieved' do not
really mean a man who is disappointed of a benefit which he might have received
if some other order had been made. A person aggrieved' must be a man who has
suffered a legal grievance, a man against whom a decision has been pronounced
which has wrongfully deprived him of something, or wrongfully refused him
something, or wrongfully affected his title to something." The above
definition of James, L.J. was described by Esher, M.R. in Ex Parte Official
Receiver In Re Reed, Bowen & Co.( as not "an exhaustive definition".
His Lordship added "It is an affirmative definition of a person who may
appeal, and at all events it includes a person who has asked for a decision for
which he had a right to ask. and has been wrongfully refused." The Queen,
v. The Keepers of the Peace and Justices of the County of London (3) was a case
of an appeal by an informant against the judgment of a justice of the peace
upon the hearing of an information or complaint by the vestry of the parish
against a person for unlawfully and willfully obstructing the free passage of a
certain highway. The relevant section provided:
"If any person shall think himself
aggrieved by. any order, conviction, judgment, or determination made, or by any
matter or thing done by any justice or other person in pursuance of this
Act.... such person may appeal to quarter sessions." In holding that an
informant had no right of appeal Lord Coleridge C.J. said:
"Is a person who cannot succeed in
getting a conviction against another a person aggrieved ?' He may be annoyed at
finding that what he thought was a breach of law is not a breach of law; but is
he aggrieved' because someone is held not to have done wrong ? It is difficult
to see that the section meant anything of that kind." In Rex v. London
Quarter Sessions Ex parte Westminster Corporation(4) a borough council whose
cancellation of the registration of a street trader had been reversed by a
magistrate on (1) 14 ch. D. 458 at 465.
(3) 25 Q. B. D. 357, 361.
(2) 19 Q. B. D. 174 at 178.
(4) 512 K. B. 508 894 appeal by the trader
concerned under S. 25 of the London County Council (General Powers) Act, 1947
was held not to be a person aggrieved by an order of a court of summary
jurisdiction within the meaning of S. 64 of the Act. The argument advanced on
behalf of the corporation was that it had a public administrative duty to
perform in the regulation of the streets and Having been interfered with in the
execution of that duty by the decision of the magistrate, they were persons
aggrieved by his order. One of the grounds for refusal of the application by
Lord Goddard, C. J. was that the order made did not directly affect the borough
council in such a way as to make them "a person aggrieved" within the
meaning of the section.
According to the learned Chief Justice what the
statute did was "to substitute the opinion of the magistrate for the
opinion of a borough council". It was said that the court of summary
jurisdiction had to take into account the same matters as the borough council
had to take into account, and if the court thinks that the cancellation of the
licence is not justified, it can restore the licence to the street trader. If
the court of summary jurisdiction refuses to grant a licence, then the street
trader is a person aggrieved, because his livelihood is affected, or an order
is made directly affecting him.
The case of Sevenoaks Urban District Council
v. Twynam(1) was relied upon by counsel appearing for, the Advocate General of
Maharashtra support his argument that even a person who had no proprietary or pecuniary
interest in the subject matter of the litigation might be a person aggrieved so
as to give him a right to appeal. The statute in this case was however worded
very differently from the statutes which came up for consideration in the cases
noted earlier.
S. 68(1) of the Public Health Act, 1925 laid
down that:
"Where for the purpose of relieving or
preventing congestion of traffic it appears to the local authority to be
necessary to provide within their district suitable parking places for
vehicles" then that authority may, subject to certain conditions, provide
those parking places and might acquire land suitable for use as a parking
place. The proviso to the section however laid down that no such order shall
authorise the use of any part of a street so as unreasonably to prevent access
to any promises adjoining the street, or the use of the street by any person
entitled to the use thereof, or so as to be a nuisance, or be made in respect
of any part of a street without the consent of the authority or person
responsible for the (1) [9291] 2 K. B. 440 at 444.
895 maintenance of the street. Sub-s. (2) of
the section provided that where a local authority proposes to acquire and for
the purpose of using it as a parking place they are to give notice of the proposal
specifying the land and notify the date within which any objection is to be
sent to them and the notice is to state that a right of appeal was conferred by
the section. Sub-s.(3) provided that before carrying into effect any proposal
of which notice was required to be given the local authority shall consider any
objection which was sent to them in writing. There was no limit there as to the
kind of person making the objection, or the kind of objection which might be
raised. The respondent, a rate payer, duly gave notice under sub s.(3) on
various grounds but he did not allege the infringement of any personal legal
right and he objected in his capacity as a rate payer and as a member of the
public on grounds common to them all. The urban council considered the
objection and informed him of their decision to proceed with the scheme.
The respondent appealed to petty sessions
which allowed his objection. The appellant appealed to quarter sessions and
took the preliminary objection that the respondent was not a person aggrieved
because he had alleged no infringement of any legal right personal to him.
Referring to the dicta of James L.J., Esher
M.R. and Lopes L.J. in the above cases Lord Hewart C.J. observed:
"I think this respondent did ask for a
decision for which he had a. right to ask. He did give notice of an objection
of which he was entitled to give notice, but the person making the objection is
not to have an appeal unless he satisfies two conditions : (1) that he is the
author of the objection, and (2) that he is aggrieved by the refusal in the
sense that he has a special and individual right infringed. It seems to me that
upon the fair construction of this sub-section, which is by no means a common
kind of statutory provision, what is meant is that a person may make an
objection and is entitled to a decision upon it, and if the decision is adverse
to him, he may, it he thinks fit and subject to the usual consequences, appeal
from it to a petty sessional court, and so appealing, may, in consequence of
other statutory provisions, appeal, if need be, to the court of quarter
sessions." According to Avory J.
"There is no limit there [in sub-s. (3)]
of the kind of person or the kind of objection which may be made. it proceeds
that after so considering the objection, they 896 are to give notice of their
decision to the person by whom the objection was made, and any person who is
aggrieved by such decision may appeal. I cannot help thinking that on the plain
words of that statute it was intended to give a right of appeal to any person
who has made an objection to the proposal and has received notice that
objection has been overruled." In Eagling Corporation v. Jones(1) Lord
Parker C.J. remarked that it was easier to say what will not constitute a
person aggrieved than it was to say what "person aggrieved" included.
He observed that a person was not aggrieved when being a public body it had
been frustrated in the performance of one of its public duties. He amplified
this by saying that "If costs have been awarded in a case against a local
authority, it is clear on the authorities that the local authority would be an
aggrieved person. Equally, if the result of the decision has been to put some
legal burden on the public body concerned, that has been held to make it a
person aggrieved." According to Donovan J. in the same case "The word
aggrieved' connotes some legal grievances, for example, a deprivation of
something, an adverse effect on the title to something, and so on, and I cannot
see that this is so here. The local planning authority has simply been told
that it cannot enforce the discontinuance of the present use of this land by
the appellant by means of an enforcement notice under S. 23." If one is to
be guided merely by the provisions of the Advocates Act it is difficult to see
how the Advocate-General can be a person aggrieved because the State Bar
Council takes the view, whatever be its reasoning, that an advocate on its roll
has not been guilty of any misconduct. The entertaining of complaints, the inquiry
into them and the punishment to be meted out to the advocate are all concerns
of the Bar Council. The Advocate-General no doubt is entitled to a hearing if
the complaint is not rejected summarily. The statute expects him to take a fair
and impartial attitude. He has to render all assistance to the Bar Council so
that a proper decision may be arrived at.
His role is not that of a prosecutor : nor is
he a defence counsel on behalf of the advocate. He is not interested in getting
the advocate punished any more than he is interested in seeing that the
character of a fellow member of, the Bar is cleared even if his conduct be
unworthy of an advocate.
(1) [1959] 1 Q. B. 384 at 390.
897 The Act does not make it obligatory on
him to take part in the proceedings where he thinks that the facts of the case
are so plain that his assistance is not called for. It is only when he feels
that a case requires a careful investigation and proper elucidation of the
facts or the exposition of the law on the subject that he is called upon to
render all assistance in the proceedings. When he chooses to do. so he does his
duty by appearing at the hearing and putting before the disciplinary committee
the facts in their proper perspective and advancing the proper inference to be
drawn there from. Once he does so there is an end of the matter so far as he is
concerned. He cannot have any grievance because the decision of the Bar Council
is' against his submission or not to his liking.
The question then arises as to whether any,
duty is cast on the Advocate-General by reason of his position to question the
decision of the Bar Council if he feels it in the general interest of the
members of the Bar or a wider public to do so. Art. 165(2) of the Constitution
epitomizes the functions and duties of the Advocate-General in the following
words:"It shall be the duty of the Advocate-General to give advice to the
Government of the State upon such legal matters and to perform such other
duties of a legal character, as may from time to time be referred or assigned
to him by the Governor and to discharge the functions conferred upon him by or
under the Constitution or any other law for the time being in force.'.
A notable instance of his statutory duties is
furnished by Order XXVII-A of the Code of Civil Procedure. By the provisions of
s. 91 of the Code of Civil Procedure no suit for a declaration and injunction
in the case of a public nuisance can be instituted except by him or with his
consent. Similar powers are given and duties cast on him by s. 92 C.P.C. in the
case of trusts created for public purposes. Section 526-A of the Code of
Criminal Procedure gives an Advocate-General power to apply to the court for
the committal or transfer of a case to the High Court where any person subject
to the Naval Discipline Act or to the Army Act or to the Air Force Act is
accused of any of the offences specified therein. It is not open to the
Advocate General to intervene in any suit or legal proceeding apart from the
provisions of the Code of Civil Procedure because he thinks public interest is
involved in the matter.
Treating the matter historically, it may be
said that in many respects the position of an Advocate-General before 1950 was
very similar to that of the Attorney-General in England. Sections 100 and III
of a statute of 1813, 53 George M, C. 155.
L169Sup.CI(P)/71-13 898 enabled the
Advocates-General to exhibit to, the respective Supreme Courts of Judicature at
any of the Presidencies or to the Recorder's Court at Bombay any information or
information for breaches of Revenue laws etc. as might be taken by the
Attorney-General in the court of Exchequer in England or in the nature of
action or actions at law or of a bill or bills in equity as occasion might
require against any person or persons residing within such jurisdiction as His
Majesty's Attorney-General for the time being was by law authorised to exhibit.
The wording of S. Ill shows that its object was to dispel doubts which had
arisen about the competency of the Advocate-General or Principal Law Officer of
the East India Company to take such action., S. 114 of the Government of India
Act, 1915 empowered the Advocate General for any Presidency to take on behalf
of His Majesty such proceedings as might be taken by His Majesty's
Attorney-General in England. S. 65(2) of the Government of India Act, 1935 laid
down that it was the duty of the Advocate-General to give advice to the
Provincial Government upon such legal matters and to perform such other duties
of a legal character as may from time to time be referred or assigned to him by
the Governor.
The position of the Attorney-General in
England is stated by Hood Phillips on Constitutional and Administrative Law
(Fourth Edition) at p. 316 to be as follows :
"The Law Officers consist of the
Attorney General and Solicitor-General for England, and the Lord Advocate and
Solicitor-General for Scotland. They are regarded as the heads of the Bar in
their respective countries, and as such are referees on points of professional
etiquette.
The learned author goes on to note at p. 317
"The Attorney-General represents the Crown in civil proceedings in which
it is specially concerned. His consent is necessary for the prosecution of
certain offences, e.g. under the Official Secrets Acts. In criminal proceedings
he or the Solicitor-General, or their deputies, prosecute in important cases.
It is the practice for the Attorney-General
to lead in treason and important constitutional cases. He may also file ex
officio criminal information, though this procedure is now rarely used. He may
stop the trial of an indictment by entering a none prosequi. He may also take
over certain proceedings on the relation of private individuals (relator
actions) e.g. public nuisance etc....... The Attorney-Generalls procedural
privileges include the right to demand a trial at Bar privilege i.e. now,
before a Divisional 899 Court), and the right to choose the venue for any civil
or criminal proceedings in which the Crown is concerned.' Anson in his treatise
on Law and Custom of the Constitution Volume II, Part I (4th Edition, 1935)
describes the Attorney-General, the Solicitor-General and the Lord Advocate and
the Solicitor-General for Scotland as the chiefs of the legal profession in
their respective countries and states that in England and Northem Ireland they
represent the Bar when the Bar takes collective, action. So far as England is
concerned neither the Attorney-General nor the Solicitor General appears to
have had for a very long time any function to discharge or any duty to perform when
the, conduct of a barrister or a solicitor was called in question. The power of
inquiry was delegated by the Judges to the Inns of Court so far as barristers
were concerned and as regards solicitors the matter has for some time been
delegated to the Law Society.
It may not also be out of place to note the
history of the legislation in India with regard to enquiries against members of
the legal profession prior to the Act of 1961.
Under clause 10 of the Letters Patent of the
High Court of Calcutta of the year 1865 the High Court was to have power to
make rules for the qualification and admission of proper persons to be
advocates, vakils and attorneys at law and was to be empowered to remove or
suspend them from practice on reasonable cause. The Letters Patents of other
High Court contained provisions. The Legal Practitioners Act 1879 appears to
have been the earliest Indian statute on the subject. Under s. 13 of this Act
the High Court was empowered after such enquiry as it though fit, to suspend or
dismiss any pleader or muktyar who was guilty of fraudulent or grossly improper
conduct in the discharge of his professional duty. The Bar Councils came into
existence for the first time under the Bar Councils Act, 1926. But even under
this Act the power to, reprimand, suspend or remove from practice any advocate
of the High Court charged with professional or other misconduct was left with
the High Court under s. 10(1). S. 10(2) laid down the procedure to be adopted
by the High Court when a complaint was made to it by any Court or by the Bar
Council or by any other person that an advocate had been guilty of misconduct.
The High Court could summarily reject the complaint or refer the case for enquiry
to the Bar Council or after consultation with the Bar Council refer it to the
Court of a District Judge and it also might. of its own motion refer any case
where it had reason to believe. that any advocate had been so guilty.
Under s. 11 it was the duty of a committee of
the Bar Council to inquire into a complaint made under s. 10, Under s. 12(2) of
the Act the finding of a Tribunal on an inquiry referred to the Bar Council was
to be forwarded to the High Court through the Bar Council and the finding of a
District Court on such inquiry was to be forwarded 900 to the High Court direct
with a copy to the, Bar Council.
S. 12(3) of the Act contained a provision
somewhat similar to s. 35(3) of the Act of 1961. The hearing was however to
take place before the High Court, which I had to give notice of the date fixed
for the purpose to the advocate concerned, to the Bar Council and to the
Advocate-General and to afford them an opportunity of being heard before orders
were passed in the case. Under the Act of 1926 the Advocate-General appeared on
the scene only after the Bar Council had recorded its finding. The significant
departure in the Act of 1961 from the analogous provision of the Act of 1926 is
that the Advocate-General is given notice of hearing of the case. By itself
this cannot affect any change in his position as regards an inquiry into the
conduct of an advocate. It would be reasonable to hold that while passing the
statutes of 1926 and 1961 the Legislature thought that the Advocate-General
should be heard inasmuch as he occupied the position of a general referee on
points of professional etiquette very much like the Attorney-General in
England.
However that may be, once he does the duty
enjoined upon him by the statute of making such submissions as he thinks proper
at the hearing his functions qua the inquiry come to an end. As a referee he
has no further interest in the matter. If the disciplinary committee of, the
Bar Council makes an order against the advocate which the Advocate General
considers harsh and unreasonable in the circumstances of the case, he is not
called upon to file an appeal to protect the interests of the advocate. Neither
is he interested in prosecuting the matter further if he takes the view that
the punishment meted is not commensurate with the misconduct of the advocate.
Elaborate reference was made at the Bar to
the decision of the Privy Council in Attorney-General of the Gambia v. Pierre
Sarr N'Jie(1). In that case the conduct of the respondent, a member of the
English Bar admitted to practice as a barrister and solicitor of the Supreme
Court of the Gambia was found to dishonourable and as such an order striking
his name off the roll of the court was made by the deputy Judge with a
direction that it should be reported to the Masters of the Bench of the Inn to
which he belonged.
The Chief Justice of the Supreme Court of the
Gambia had criticised the conduct of the barrister severely in the course of a
trial held before him and had sent a copy of his judgment to the
Attomey-General of the Gambia. The Attorney General served a notice of motion
on the barrister for an enquiry to be, made by the Chief Justice but as the
Chief Justice was the only Judge of that Court he recommended that someone
other than himself should be appointed as a deputy Judge to hold the (1) [1961]
A. C. 617, 630.
901 inquiry. The Deputy Judge ordered his
name to, be struck off the roll. His order was however set aside by the West
African Court of Appeal not on merits but on the ground that a Deputy Judge had
only jurisdiction to represent the Chief Justice in the exercise of his
judicial powers and according to the Court of Appeal the power to strike the
name of a legal practitioner off the roll was not a judicial power.
The Attorney-General of the Gambia appealed
to Her Majesty in Council. The question of the maintainability of the
appeal-was also canvassed before the Board. With regard to inquiries into the
conduct of barristers and solicitors in the Crown colonies Lord Denning who
delivered the judgment of the Privy Council, said "by the common, law of
England the Judges have the right to determine who shall be admitted to
practice as barristers and solicitors, and as incidental thereto the judges
have the right to suspend or prohibit from practice.
In England this power has for a very long
time been delegated, so far as barristers are concerned, to the Inns of Court;
and, for a much shorter time, so far as solicitors are concerned, to the Law
Society. In the colonies the Judges have retained the power in their own hands,
His Lordship went on to remark at p. 631 "When the judges exercise this
power to suspend or expel, they do not decide a suit between the parties. There
is no prosecutor as' in a criminal case, nor any plaintiff as in a civil suit.
The judges usually act on their own initiative, ex mero motu, on information
which has come to their notice, or to the notice of one or other of them in the
course of their duties." Further, "When a legal practitioner is
suspended or struck off by the judges of a colony, he has always been at
liberty to petition Her Majesty in Council to restore him." Rejecting the
argument that the Attorney-General had, no locus standi to petition for special
leave to appeal as he was not a person aggrieved, the Board referred to s. 31
of the Order in Council, 1949 which gave very wide powers to His Majesty in
Council to entertain the petition of any person aggrieved by any judgment of
the court and to admit his appeal upon such conditions as His Majesty in
Council would think fit to impose. On the facts of the case the Board held that
the Attorney-General had a sufficient interest in the matter because the order
made by the 902 West African Court of Appeal prejudicially affected his
interests.
The reasoning of the Board was as follows:"The
Attorney-General in a colony represents the Crown as the guardian of the public
interest. It is his duty to bring before the Judge any misconduct of a
barrister or solicitor which is of sufficient gravity to warrant disciplinary
action. True it is that if the judge acquits the petitioner of misconduct, no
appeal is open to the Attorney General. He has done his duty and is not
aggrieved. But if the Judge finds the practitioner guilty of professional
misconduct and a Court of Appeal reverses the decision on a ground which goes
to the jurisdiction of the judge, or is otherwise a point in which the public
interest is concerned, the Attorney General is a person aggrieved' by the
decision and can properly petition Her Majesty for special leave to
appeal." It is clear that Lord Denning considered the denial of
jurisdiction of the deputy Judge to be a matter of public interest and
therefore held the Attorney-General, as the Crown's representative, to be a
person sufficiently interested as to be a person aggrieved. That surely is not
the position here, nor is an Advocate-General the representative of the
Government. Neither the Constitution nor the Advocates Act 1961 holds him as
the representative of the Government or as a person representing the public
interest. Whatever may be the, position of the Attorney General in a colony as
a representative of the Crown, he is not the guardian of the public interest in
India in any matter except as provided for in the statutes. He like any other
person may draw the attention of the Bar Council to any misconduct of an
advocate which according to him merits disciplinary action. The Act of 1961
provides for notice to be given to him of all such proceedings and gives him a
right to appear at the hearing but once the hearing is over and a finding
recorded he has done his duty and cannot be said to be aggrieved within the
meaning of the expression used in s. 37. It is only because the
Attorney-General for the Gambia had an interest in seeing that the Court of
Appeal did not reverse the decision of the Deputy Judge on a ground which went
to the jurisdiction of the Judge or was otherwise a point in which the public
interest was concerned that the Board held that he was a person aggrieved.
Our attention was drawn to a decision of the
Judicial Committee in Advocate-General Bombay v. Phiroz Barucha(1) where the
Privy Council entertained an appeal by the Advocate General (1) 37 B.L.R. 722.
903 of Bombay against an advocate who had
been found by the High Court of Bombay to have been guilty misconduct but
against whom no disciplinary action had been taken by the Judges.
Although there was a good deal of discussion
Lit the Bar about the maintainability of the appeal which was sought for by
special leave, the Board remarked that the circumstances were not such as to
justify it in advising His Majesty to grant such special leave principally on
the ground that the question was one of the exercise of statutory discretion by
the Judges as to whether the circumstances of the case as established before
the High Court called for any disciplinary action and the Board felt that the
action of the High Court in exercising their discretion in the way they had
done was not such as His Majesty would be advised further to consider.
This decision does not help the
Advocate-General of Maharashtra because it did not decide the point as to the
maintainability of the appeal. It is well known that the Judicial Committee was
never chary in granting special leave to appeal when it felt that the justice
of the case demanded a further hearing.
Mr. Daphtary appearing for the appellant very
fairly drew our attention to an observation of this Court in Bhataraju
Nageswara Rao v. The Hon'ble Judges of the Madras High Court(1) which was a
case of an appeal by special leave from an order of the High Court at Madras
under s. 12 of the Indian Bar Councils Act debarring the advocate for a period
of five years on charges of misconduct which were held by the High Court as
proved. In the ultimate paragraph of the judgment this Court recorded its
strong disapproval of the frame of the appeal in that the Judges of the High
Court had been made respondents to it. They however went on to observe that
"in an appeal arising out of a proceeding under the Bar Councils Act the
appropriate parties should be the advocate concerned, the complainant, if any,
the Bar Council or the secretary thereof and the Advocate-General of the State
concerned to whom notices have to be issued under section 12(3) of the Indian
Bar Councils Act." With great respect we find ourselves unable to concur
in the above so far as the Advocate-General is concerned. It does not appear
that any argument was advanced about the proper parties to the appeal before
this Court and the point as to whether the Advocate-General was a person
aggrieved was neither raised nor argued. The only party to appear before this
Court wag "the Judges of the High Court." (1) [1955] 1.S.C.R.
1055,1064 904 It appears that the Advocate-General of Maharashtra felt in this case
that the disciplinary committee of the Maharashtra Bar Council had gone wrong
and that there was a question of principle involved as regards the effect of a
conviction of an Indian advocate of an offence recognised by all civilised
countries as an offence involving moral turpitude and that, the question also
related to the requirements of natural justice in a criminal court. Every day
courts of law are called upon to decide questions of law inter-partes which may
be of general importance to the public. The Advocate General cannot prefer an
appeal merely because the question is one of considerable importance to the
public inasmuch as he is not a party to it and he has no locus standi to do so
even in a case where the statute only gives him an opportunity of appearing at
a hearing and making his submissions.
A decision by the disciplinary committee
cannot necessarily be said to raise a point-of public interest merely because
the Advocate-General feels that it is erroneous or that he himself would have
arrived at a different conclusion. That at best is his personal opinion as
regards the conduct of an advocate who has to deal with the public and the non acceptance
thereof does not make him a person aggrieved. An Advocate-General in India is
not the guardian angel of the Bar, nor is he the champion of public interest in
any matter save as specified in a statute.
In conclusion we hold that the appeal by the
Advocate General of Maharashtra to the Bar Council of India was incompetent and
this appeal should be allowed and the finding of the Bar Council of India set
aside.
Vaidialingam, J. With respect, I am not able
to agree with the views expressed by My Lord, and Mr. Justice Mitter That the
appeal filed by the Advocate-General of Maharashtra before the Bar Council of
India was incompetent.
The preliminary point that has been argued
before us in this appeal relates to the maintainability of the appeal by the
Advocate-General of Maharashtra before the Bar Council of India under S. 37(1)
of the Advocates Act 1961-Act 25 of 1961 (hereinafter referred to as the Act)
against the order of the Disciplinary Committee of the Bar Council of
Maharashtra (hereinafter referred as the Committee) dated October 19, 1968
holding the appellant not guilty of any professional misconduct. It is not
necessary to refer to the allegations of professional misconduct made against
the appellant as this appeal has yet to be heard on merits.
Against the order of the Committee,
acquitting the appellant, the Advocate-General of Maharashtra Sri H. N. Seervai,
filed 905 under s. 37(1)D.C. Appeal No. 18 of 1968 before the Bar Council of
India. The said appeal was heard by the Disciplinary Committee of the Bar
Council of India (hereinafter referred to as the. Appellate Committee) as
required by s. 37(2) of the Act. A preliminary objection was raised on behalf
of the appellant that the Advocate General was not competent to prefer the
appeal as he was not the complainant nor were the proceedings for taking
disciplinary action initiated at his instance and he is not "any person
aggrieved' under s. 37(1). The State Bar Council, which initiated the
proceedings was apparently satisfied with the decision of its Committee and did
not take any further action. In, short,. according to the appellant, the Advocate-General
was not "any person aggrieved", under s. 37(1) of the Act. The appeal
was, also contested by the appellant on merits. The Appellate Committee by its
order dated October 26, 1969 overruled the preliminary objection and held that
the Advocate-General was competent to maintain the appeal under s. 37(1). By
the same order the Appellate Committee disagreed with the findings of the
Committee and found the appellant guilty of professional misconduct and ordered
his suspension from practice for a period of one year. The appellant was also
directed to pay the costs of the proceedings. It is this order of the Appellate
Committee that is the subject of the appeal before us.
As stated earlier, we have heard arguments
only on the question of the maintainability of the appeal at the instance of
the Advocate-General of Maharashtra before the Bar Council of India. As the
question raised was a fairly important one, notice had been issued to the
Attorney General of India, the Bar Council of India, the Advocates General and
the Bar-Councils of the States. Advocates General of most of the States were
represented by counsel.
The Attorney-General of India, the Bar
Council of India as well as. the Bar Council of Maharashtra were also
represented by counsel before us.
The question posed for our consideration is
whether the, Advocate-General of a State comes within the expression "any
person aggrieved" in s. 37(1) of the Act.
Mr. Daphtary, learned counsel for the
appellant, drew our attention to the various provisions of the Act and pointed
out that matters concerning the legal profession have now been entrusted to the
State Bar Councils and the Bar Council of India and them powers to take
disciplinary action have also been vested in them. Whatever may have been the
position once occupied by the. Advocate-General vis-a-vis the legal profession,
that has now been changed by the Act.
His appearance in disciplinary matters is
only to assist the Committee and he has no further interest in 906 those
proceedings. Whether an Advocate is acquitted or convicted is no concern of the
Advocate-General, because he is not interested in the actual decision of the
Committee.
Hence the Advocate-General cannot be
considered to be "any person aggrieved by any order of the Committee so as
to be eligible to file an appeal under s. 37 of the Act. In this connection Mr.
Daphtary referred us to several English decisions where the expression person
aggrieved' has been considered and interpreted with references to the statutes
in which those expressions occur. Relying on the principles laid down in those
decisions, to which reference will be made later, Mr. Daphtary pointed out that
the expression person aggrieved' should not be interpreted as covering every
person who is disappointed or dissatisfied with a decision rendered by a
Committee. On the other hand, the counsel urged, that in order to be considered
as a person aggrieved' that person must be one who has suffered a legal
grievance, a man against whom a decision has been pronounced and which has
wrongfully deprived him of something or wrongfully refused him something, or
wrongfully affected his title to something. An appeal must be by the party who
has endeavored to maintain the contrary of that which has taken place. The
counsel further pointed out that the Advocate General is a public officer and
cannot be considered to be a party to the proceedings before the Committee. The
Advocate-General may be even annoyed with the decision of the Committee
acquitting an Advocate, but that will not make him a person aggrieved'.
Considerable reliance was placed by Mr.
Daphtary on the observations of Lord Denning in Attorney-General of the Gambia
v. Pierre Sarr N'Jie(1) to the effect that the Attorney-General in a colony
represents the Crown as the guardian of the public interest and that it is his
duty to bring before the Judge any misconduct of a barrister or solicitor which
is of sufficient gravity to warrant disciplinary action and that if the Judge
acquits the practitioner of misconduct, no appeal is open to the
Attorney-General, who has done his duty and is not aggrieved. But if, on the
other hand, a Court of Appeal reverses the decision holding a practitioner
guilty of professional misconduct, on a ground which goes to the jurisdiction
of the Judge or is otherwise a point in which the public interest is concerned,
the Attorney-General is a person aggrieved' by the decision and can properly
petition Her Majesty for special leave to appeal. Drawing support from these
observations Mr. Daphtary urged that in this case, the Committee had acquitted
the appellant and the Advocate-General having appeared through counsel before
the Committee has done his duty, and as such he cannot be considered to be
aggrieved. No question of jurisdiction of the Committee or any point in which
the public interest is (1) [1961] Appeal Cases 617.
907 concerned arose for decision in the
appeal filed by the Advocate-General, so as to make the appeal competent even
within the limited rule laid down by Lord Denning.
Mr. V. S. Desai, learned counsel appearing
for the Advocate General of Maharashtra and Mr. M. C. Setalvad, learned counsel
appearing for the Bar Council of India have supported the decision of the
Appellate Committee holding in favour of the competency of the appeal filed by
the Advocate-General as "any person aggrieved" under s. 37 of the
Act. The counsel appearing for the Attorney-General, the Bar Council of
Maharashtra and the Advocates-General represented before us have supported this
view.
Mr. V. S. Desai pointed out that the Act is a
self-contained Code, and that the various decisions where the expression person
aggrieved' has been interpreted must be appreciated in the particular context
in which those expressions occur in the statutes which were before the Courts.
The reasoning in those decisions may furnish a guide but cannot be applied ipso
facto when interpreting s. 37 of the Act. The expression " any person
aggrieved" in s. 37 of the Act will have to be understood and interpreted
in the context in which it appears, having due regard-to the scheme of the Act.
The council also referred us to certain decisions bearing on this matter, to
which we shall refer in due course.
Mr. M. C. Setalvad, learned counsel,
appearing for the Bar Council of India urged in particular that the Advocate General
is a responsible person and is the highest Law Officer of the State. The legal
profession is very closely associated with the administration of justice by the
Courts.
The Bar, in that context has to come into
contact with the public to assist them in legal matters. This responsible
position occupied by the legal profession has to be properly safeguarded and
that could be done only by insisting that its members are persons of high
character and integrity and who observe rules of professional etiquette. The
Act has made it obligatory to give notice in the disciplinary proceedings to
the Advocate-General and give him an opportunity of being heard. The purpose
for which the highest Law Officer of the State, the Advocate-General, is brought
in not only in the Act, but also in the Indian Bar Councils Act of 1926 (Act 38
of 1926) (hereinafter referred to as the Bar Councils Act) is to sub serve the
public interest, namely, of seeing that the integrity and honesty of the legal
profession are maintained and that proper decisions are given in disciplinary
proceedings. There may be cases of inadequate punishment or even harsh
punishment being awarded by the Committee. The Advocate-General in proper cases
can bring up such matters before the Bar Council of India. Mr. Setalvad further
pointed out that there is no restriction placed in s. 37 denying the right of
the Advocate-General to file an appeal against the orders of the Committee.
Having due regard to the scheme of the Act 908 and particularly of ss. 35 and
37, the Advocate-General comes within "any person aggrieved" and
hence he was competent to file the appeal.
I have given careful consideration to the
various aspects placed before us by all the learned counsel and I am of the
view that the decision of the Appellate' Committee holding that the appeal
filed by the Advocate-General of Maharashtra was competent is correct. I am
further of the view that the expression "any person aggrieved" in s.
37 will have to be interpreted in the context in which it appears, having due
regard to the provisions of the Act and its scheme.
Considered in this manner, it has to be held
that the Advocate-General comes within "any person aggrieved" in s. 37.
The decisions relied on by Mr. Daphtary have, no doubt, interpreted the
expression person aggrieved' occurring in the particular statutes which came up
for consideration in those decisions, but in my opinion it will not be safe to
adopt in to the interpretation so placed, no doubt on the identical expression
occurring in different statutes when construing the said expression in the Act
before us. As pointed out by Lord Parker C.J. in Ealing Corporation v. Jones(1)
cases which have interpreted similar expressions, can be looked into "to
see if there are general principles which can be extracted which will guide the
court in approaching the question as to what the words person aggrieved' mean
in any particular statute." I will make a brief reference to the decisions
cited for the appellant later. But before doing so, it is desirable to refer to
some of the provisions of the Act itself, so that the scheme of the Act will become
evident, and that will throw considerable on the interpretation of s. 37.
Before I refer to the Act, I think it
desirable to advert to some of the provisions of the Bar Councils Act. Even at
the outset I may point out that the scheme of the Bar Councils Act was
different. In the Bar Councils Act, the disciplinary jurisdiction over
Advocates was vested in the High Court [vide s. 10(1)]. Under s. 10 (2) the
High Court,. if the complaint is not summarily rejected by it, had to refer the
case for inquiry either to the Bar Council or after consultation with the Bar
Council, to the Court of a District Judge. When a case is referred for inquiry
to the Bar Council under s. 1 1, the case was to be inquired into by the
Committee of the Bar Council, referred to as the Tribunal, and that Tribunal
consisted of the particular number of person mentioned in s. II (2) appointed
for the purpose by the Chief Justice. The High Court had power to make rules
under s. 12(1) prescribing the procedure, to be followed in the conduct of inquiries.
The finding of the inquiry by the Tribunal had to be forwarded to the High
Court. On receipt of the finding, the High Court had to fix (1) [1959] 1 Q.B.D.
384.
909 a date for hearing of the case. Under S.
12(3) it was obligatory to give notice, amongst other persons, to the
Advocate-General of the day fixed for hearing; and it was also further
obligatory to give the Advocate-General an opportunity of being heard before
orders. were passed.
Under s. 12(4) the High Court could pass
final orders or refer the case back for further inquiry., Under sub-s. (5) the
High Court had also power, when passing final orders to give directions
regarding payment of costs. I am only referring to the material provisions of
the Bar Councils Act to show that the High Court was then the disciplinary
authority and the function of the Committee of the Bar Council was only to
submit a finding after conducting an inquiry as directed by the High Court. It
is however to be noted that the Advocate-General then was not associated in the
inquiry proceedings before the Tribunal of the Bar Council; but he-was entitled
to be given notice of the date fixed for hearing and also to be heard in the
proceedings before the High Court after receipt of the finding submitted by the
Committee of the Bar Council. Those provisions clearly establish the important
position occupied by the Advocate-General and recognised by the Bar Councils
Act.
The scheme is slightly different when we come
to the Act.
The State Bar Councils and the Bar Council of
India have been made autonomous units and various functions regarding the legal
profession have been entrusted to them. Taking disciplinary action against the
delinquent members of the Bar and conducting inquiries are all part of their
functions. Barring a provision of a right to appeal to the Supreme Court under
s. 38 of the Act, the Courts are completely out of picture so far as the legal
profession is concerned. The Act was one to amend and consolidate the law
relating to legal practitioners and to provide for the constitution of the Bar
Councils of the States and the Bar Council of India. Section 3 makes provisions
for the State Bar Councils. Under sub-section (2) the Advocate-General of the
State is an ex-officio member. Similarly the Additional Solicitor General of
India is an ex-officio member of the State Bar Council of Delhi. Section 6 (1 )
enumerates the functions of the State Bar Councils. One of the functions under
cl. (c) relates to entertaining and determining cases of misconduct against
advocates on the roll of the State Bar Council. Section 7 similarly enumerates
the functions of the Bar Council of India. Under cl. (c), the Bar Council of
India has got the power to lay down the procedure to be followed by its
Disciplinary Committee and the Disciplinary Committees of each State Bar
Councils. Section 9 deals with the Bar Council constituting one or more
Disciplinary Committees in the manner indicated therein. Section 23 gives a
right of pre-audience to the Attorney-General of India, the Solicitor General
of India, the Additional910 Solicitor General of India and the
Advocate-Generals of the States, as mentioned in sub-sections 1 to 4
respectively.
Chapter V deals with the "conduct of
Advocates" and contains the group of sections 35 to 44. Section 35 deals
with the punishment of Advocates for misconduct and is as follows "Section
35 : Punishment of advocates for misconduct:
(1) 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.
(2) The disciplinary committee of a State Bar
Council, if it does not summarily reject the complaint shall fix a date for the
hearing of the case and shall cause a notice thereof to be given to the
advocate concerned and to the Advocate-General of the State.
(3) The disciplinary committee of a State Bar
Council after giving the advocate concerned and the Advocate-General an
opportunity of being heard, may make any of the following orders, namely (a)
dismiss the complaint or, where the proceedings were initiated at the instance
of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for
such period as it may deem fit;
(d) remove the name of the advocate from the
State roll of advocates.
(4) Where an advocate is suspended from
practice under clause (c) of sub-section (3), he shall, during the period of
suspension, be debarred from practicing, in any court or before any authority
or person in India.
(5) Where any notice is issued to the
Advocate-General under sub-section (2), the Advocate-General may appear before
the disciplinary committee of the State Bar Council either in person or through
any advocate appearing on his behalf." Similarly s. 36(1) deals with the
disciplinary powers of the Bar Council of India. Sub-section (2) confers powers
on the 911 Appellate Committee of itsown motion to withdraw for inquiry for itself
any disciplinary action against an advocate pending before the Committee and
dispose of the same. Sub-section (3) provides for the Appellate Committee when
disposing of a case under s. 36 observing, so far as may be, the procedure laid
down in s. 35. It further provides that references to the Advocate-General in
s. 35 are to be construed as references to the Attorney-General of India.
Sections 37 and 38 which provide for an
appeal to the Bar, Council of India and to the Supreme Court effectively run as
follows 'Section 37 : Appeal to the Bar Council of India.
(1) Any person aggrieved by a order of the,
disciplinary committee of a State Bar Council(under section 35) may, within
sixty days of date of the communication of, the order to him, prefer an appeal
to the Bar Council of India.
(2) Every such appeal shall be heard by the
disciplinary committee of the Bar Council of India which may pass such order,
thereon as it deems fit.,, "Section 38. Appeal to the Supreme Court:
Any person aggrieved by an order made by the
disciplinary committee of the Bar Council of India under section 36 or section
37 may, within sixty days of the date on which the order is communicated to
him, prefer an appeal to the Supreme Court and the Supreme Court may pass such
order thereon as it deems fit." Section 42(1) deals with powers of the
disciplinary committee of a Bar Council with regard to the various matters
provided for in cls. (a) to (f). Section 43 provides for making of orders as to
costs by the disciplinary committee of a Bar Council. Section 44 gives powers
of review to the disciplinary committee of a Bar Council. Section 48A, in
ChapterVI, deals with the revisional. powers of the Bar Council of India.
It will be, seen from ss. 3 (2) (a), 23 (4)
and 35 that the, Advocate-General of the State is given by the Act a very
important and responsible position. Some discussion took place before us
whether the Advocate-General can be considered to be the person who is charged
with the duty of safeguarding the professional integrity of the members of the
Bar, when powers and duties in that regard have been conferred under the Act on
the912 State Bar Councils. I do not think it necessary to go into that aspect
as I think a# inquiry in that regard is not relevant for the present purpose of
construing S. 37. Nor can the analogy of the Attorney-General in a colony
representing the Crown, being the guardian of public interest, as stated by
Lord Denning in Attorney-General of the Gambia v. Pierree Sarr N'Jie(1) be
brought in for interpreting S. 37 of the Act, as we are only concerned to find
out the right given to the Advocate-General by the Act.
So far as that is concerned, I am satisfied
that the Act has given due recognition to his status by virtue of his being the
highest Law in the St-ate, as the Advocate-General and who may be trusted to
place a disinterested and dispassionate view before the Committee to enable it
to come to a proper decision having due regard to the Advocate concerned, as
well as the entire legal profession to which he belongs. Apart from his being
under s'. 3 (2) (a) an ex officio member of the State Bar Council, s. 23 (4)
gives him a right of pre-audience over all other advocates.
Coming to s. 35, read with S. 37, which has
been extracted earlier, the main features that emerge therefrom are as follows
(1), The State Bar Council can suo moto or on receipt of a complaint, when it
has reason to believe that an advocate has been guilty of professional or other
misconduct refer the case to its committee.
(2) If the Committee does not summarily
reject the complaint, it is bound to fix a date for hearing of the case, and it
is also further bound to give notice of the date of hearing, apart from the
advocate concerned, to the Advocate-General of the State.
(3) The Committee is bound in, the inquiry to
give an opportunity of being heard both tothe advocate concerned and the
Advocate General. After such an inquiry the Committee can pass one or other of
the orders enumerated in clauses (a) to (d) of s. 35.
(4) The Advocate-General may appear before
the Committee in person or through an advocate appearing on his behalf.
(5) The orders of the Committee have to be
communicated to the Advocate-General and the advocate concerned.
(1) [1961] 1 A. C. 617.
913 (6) Against the orders passed under s.
35, any person aggrieved is entitled to file an appeal under s. 37, to the Bar
Council of India.
While under the Bar Councils Act, the
Advocate-General was associated with the disciplinary proceedings only when the
matter was being decided by the High Court, after receipt of the findings
submitted by the Tribunal of the Bar Council, it is significant to note that
under the Act, the Advocate General is associated with the disciplinary
proceedings right from the stage of inquiry by the Committee. Under sub-section
(2) of s. 35 the Committee is bound to give notice of the date of hearing not
only to the Advocate concerned but also to the Advocate-General of the State.
It will be noted that disciplinary proceedings may have been occasioned because
of a complaint made by a third party or may have been initiated suo Moto by the
State Bar Council.
In whatever manner the proceedings may have
been initiated, the Advocate-General is entitled to be given notice of the date
of hearing. It cannot be a formal and empty notice, to the Advocate-General,
because sub-section (3) clearly indicates that the Advocate-General should be
given an opportunity of being heard. It is significant to note that sub-section
(3) of s. 35 which, deals with the giving of an opportunity of being heard both
to the advocate concerned and the Advocate-General does not make any
distinction in the opportunity so afforded to both of them. The same
opportunity that the Advocate concerned has under sub-s. (3) is also afforded
to the Advocate-General. It is not necessary to go to the extent of holding
that there is a "lis" before the Committee and that the
Advocate-General is a "party" in the sense that expression is
ordinarily understood in law. The advocate concerned win be interested in
disputing the allegations made or charges levelled against him and he will be
entitled to lead evidence in support of his plea. If there is a complainant, he
will of course lead evidence to support his case. The Advocate General, on the
other hand, is also entitled to place before the Committee all aspects of the
matter including facts that may be in favour of the advocate whose conduct is
under inquiry. This is because of the important position occupied by him. It
may be that the Advocate-General may not be able to appear personally and
participate in all the disciplinary proceedings and that is why provision has
been made in s.
35(5) enabling the Advocate-General to appear
either in person or through any advocate appearing on his behalf.
Just as the Advocate concerned will have an
opportunity of examining his witnesses and cross-examining the witnesses
produced against him, the Advocate-General or the counsel appearing on his
behalf will also have a right of cross examining the witnesses produced in the
case so as to elicit information about the charge of professional misconduct
levelled against the advocate concerned.
The 9 SupCI/71-14 914 Advocate General need
not be vindictive and take sides as a party to a litigation and see that the
advocate is found guilty. On the other hand, by virtue of the special and
dispassionate role occupied by him, he will be able during the inquiry to place
such materials or evidence which will enable the Committee to come to a proper
and correct finding, in the interest of both the legal practitioner and legal
profession to which he belongs.
It is in this context of the close
association of the Advocate-General with the disciplinary proceedings that the
expression person aggrieved' in S. 37 has to be interpreted. There can be no
controversy-. that an appeal will lie against the various orders that the
Committee may pass as enumerated in cls. (a) to (d) of S. 35 (3). The question
is at whose instance the appeal will lie. If the complaint is dismissed, the
complainant will be a person aggrieved' who can file an appeal under S. 37. In
fact it has been held by this Court in B. M. Madani v. Commissioner of
Workmen's Compensation, Bombay (1) that when proceedings are initiated on a
complaint by a party and the Committee after finding the advocate guilty of the
charges, passed an order reprimanding with a warning, an appeal filed by such a
complainant before the Appellate Committee only on the question of sentence
imposed, was-competent as, the complainant was a person aggrieved'. Similarly,
an order adverse to the advocate concerned can be the subject of appeal at his
instance.
There is no controversy that the order passed
by the Committee was communicated to the Advocate-General. As already pointed
out a series of steps is contemplated under S. 35;
reference to the Committee, of a case of
professional misconduct; notice of the, date of hearing to be given to the
Advocate-General; Advocate-General being given an opportunity of being heard at
the hearing; the Advocate General being entitled to appear before the Committee
either in person or through an Advocate; his being entitled to be communicated
with a copy of the order passed by the Committee. It is in that context and for
these purposes that I have considered the meaning of the expression "any
person aggrieved" in S., 37-(1). The fact that the Advocate General does
not allege an infringement of any legal rights of his own is of no consequence.
The particular preceding in which the Advocate-General is given a right to
participate relates to an inquiry into the allegations of misconduct against an
advocate. Upon a fair construction of S. 37 read with S. 35 of the Act, the
Advocate-General, in my opinion is "any person aggrieved" and as such
was entitled to file the appeal under S. 37 (1 ) against the order passed by
the Committee. The same reasoning will apply to the Attorney-General of India
under S. 38.
(1) (Civil Appeal No. 877 of 1968 decided on
8-10-1968).
915 It may be that in a particular case the
Advocate-General may feel that the findings arrived at in favour of the
advocate by the Committee is not justified by the evidence and that decision
will have to be reconsidered by the Appellate Committee; or it may even be that
in a particular case the sentence imposed by the Committee may not be
commensurate with the guilt of the advocate; or it may also be that the
sentence imposed on an, advocate by the Committee is very harsh or the finding
of guilt is not correct. Under such and similar circumstances in the interests
of the Advocate and the legal profession, the Advocate-General will be
competent to bring up the matter before the Appellate Committee so that justice
may be done.
In this context the observations of Lord
Hewart C.J. in Sevenoaks Urban District Council v. Twynam(1) are apposite.
The question before the Court in that
decision was whether an objector to a proposal made by a local authority to
acquire land in order to provide parking place for vehicles and whose
objections were overruled was a person aggrieved' under s. 68(3) of the Public
Health Act 1925 and as such entitled to appeal. It was found that the objector
alleged no ground of objections personally to himself. Nevertheless it was held
that such an objector was a person aggrieved' and entitled to appeal. Lord
Hewart C.J. at page 443 states:
"The question therefore is : Is it true
to say that in these circumstances and within the meaning of (this part of this
statute this respondent was a person.... aggrieved' ? Now undoubtedly those
words, a person aggrieved', have very often been considered, and, if one looked
at the mere terms apart from their context and apart from the particular
circumstances, it would have been, quite easy to marshal decisions of
contradictory import.
But as has been said again and again there is
often little utility in seeking to interpret particular expressions in one
statute by reference to decisions given upon similar expressions in different
statutes which have been enacted alio intuitu. The problem with which we are
concerned is not, what is the meaning of the expression aggrieved' in any one
of a dozen other statutes, but what is its meaning in this part of this statute
? It is a little important to see what this part of this statute is dealing
with." The above extract has been quoted with approval by Lord Parker C.J.
in Ealing Corporation v. Jones(').
I have already indicated earlier that the
problem before us whether the Advocate-General is a person aggrieved' under s.
37 (1) [1929] 2 K. B. 440.
(2) [1959] 1. Q. D. 384.
916 of the Act will have to be tackled with
reference to the scheme and provisions of the Act and that is exactly what I
have done and arrived at the conclusion that he is a person aggrieved.
Mr. Daphtary argued that when the Committee
consisting of members of the legal profession, has decided in favour of the
Advocate, the Advocate-General can have no grievance.
This in my view is really begging the
question. Why did the Legislature then bring in the Advocate-General at all and
why has it associated him in disciplinary proceedings from the very beginning
of the inquiry ? That and other circumstances, already pointed out by me, bring
him under s.
37 as "any person aggrieved." Mr.
Daphtary then urged that if the Advocate-General was expected to safeguard the
interest of the Advocate and the legal profession by seeing that proper
decisions are given by the Committee, that purpose is not served when powers
have been given to the Committee under s. 35(2) to summarily reject a complaint
and the Advocate-General will have no remedy against such rejection. The short
answer to this contention is that a right of appeal must be specifically
conferred by statute. Section 37(1) gives a right of appeal against an order
passed under s. 35. The orders which could be passed after hearing the case are
enumerated in clauses (a) to (d) of S. 35 (3). It is not necessary for me to
express any opinion whether an order summarily rejecting a complaint can also
be the subject of an appeal under S.
37(1) as that section is in very wide terms.
In any event, Mr. Daphtary's contention will only amount to this viz., that the
Advocate-General is not associated at the stage of summary rejection of a
complaint. That circumstance does not militate against the view already
expressed by me.
Probably the Legislature may have felt that
if there is any wrongful summary rejection of a complaint it could be set right
by the Bar Council of India under S. 48A. But once the Committee decides to
hear the cases and passes an order under s. 35, the Advocate-General gets a
right of appeal under S. 37(1).
Mr. V. S. Desai referred us to the decision
of the Judicial Committee in Advocate General of Bombay and others v.
Pitamberdas Gokuldas Mehta and others(1)
wherein, according to him, an appeal by the Advocate-General of Bombay against
the decision of the High Court of Bombay Pleaders Act was entertained by the
Judicial Committee. He has also referred us to the discussion between the Court
and counsel in the said decision reported in Advocate-General of Bombay v.
Phiroz Rustomji Bharucha (2) which, according
to him, will show that though an objection about the locus standi of the
Advocate-General to file an (2) 37 Bombay Law Reporter 722.
(1) Indian Appeals 235.
917 appeal under such circumstances was
raised, but was not accepted by the Judicial Committee. I have gone through
both the reports and there is no indication that the question of
maintainability of an appeal by the AdvocateGeneral was decided one way or the
other by the Judicial Committee.
Mr. Daphtary has referred us to the decisions
in Re. Sidebotham(1), in re. Reed, Bowen & Co.,(2), The Queen v. The
Keepers of the Peace and Justices of the County of London(3), Rex. v. London
Quarter Sessions(4) and Ealing Corporation v. Jones(5), wherein the expression
person aggrieved' occurring in different statutes came up for interpretation.
The principles that emerge from those decisions appear to be that a person
aggrieved' must be a person who has suffered a legal grievance or who has
claimed a title to something and his claim has been negatived or who has
maintained to the contrary in the proceedings or litigation. It has been
further held in some of those decisions that the said expression does not take
in any person who may be affected by the order or who may feel disappointed or
even annoyed at the decision. In the view that I take that the expression
person aggrieved' in s. 37 of the Act has to be interpreted in the light of the
provisions of and scheme of the Act as well as the context in which those
expressions appear. I do not think it necessary to consider in great detail
those decisions which have been rendered on different statutes.
The decision in The Municipal Corporation of
the City of Ahmedabad v. Chandulat Shamaldas Patel and others(6) referred to by
Mr. Daphtary, in my opinion, does not assist the appellant. In that decision it
was held that when certain notifications issued under the Land Acquisition Act
were set aside by the High Court, the Municipal Corporation, on whose behalf
the ;acquisition was being made by the Government, cannot be considered to be a
person aggrieved' entitled to challenge the order of the High Court. An
additional reason has also been given against the competency of the appeal that
even an order for costs has not been passed against the Municipal Corporation.
That decision was rendered on the scheme of the Land Acquisition Act, and so
does not help the appellant.
It was urged on behalf of the appellant that
if the Advocate-General was really intended to be given a right of appeal under
s. 37 (1), the Legislature should have used the expression any person including
the Advocate-General aggrieved by an order.
(1) 14 Chancery Davison 458.
(3) 25 Q. B. D. 357.
(5) [1959] I. Q. D. 384.
(2) 19 Q. B. 174.
(4) [1951] 2 K. B. D. 508.
(6) (Civil Appeal No. 1716 of 1967 decided on
1-8-1970) 918 I am of the view that it was unnecessary to make any such
provision because the expression as it stands clearly takes within its fold the
Advocate-General also.
This leaves me with the decision in Attorney-General
of the Gambia v. Pierre Sarr N.'Jie(1) which has been very strongly relied on
by Mr. Daphtary. One Mr. X a member of the, English Bar was admitted to
practice as a barrister and solicitor of the Supreme Court of Gambia. The
Deputy Judge made an order striking his name off the roll of that Court.
This decision was reversed by the West
African Court of Appeal on the ground that the Deputy Judge had no jurisdiction
in the matter. The Attorney-General of Gambia sought leave to appeal to Her
Majesty in Council; but the West African Court of Appeal declined to grant him
leave on the ground that notice had not been given in due time to Mr.
X. The Attorney-General then made a petition
to Her Majesty for special leave to appeal from the judgment of the West African
Court of Appeal, setting aside the order of the Deputy Judge as well as
refusing to grant leave to appeal.
The Attorney-General's petition was granted;
but liberty was reserved to Mr. X to raise the preliminary point that no appeal
lay at the instance of the Attorney-General. During the course of arguments the
Judicial Committee rejected the preliminary objection.
It is to be noticed that against the decision
of the Deputy Judge striking his name off the roll, Mr. X filed an appeal to
the West African Court of Appeal under s. 14 which was as follows "An
appeal shall lie to the Court of Appeal from any order of the Judge suspending
a barrister or solicitor of the Supreme Court from practice or striking his
name off the Roll and for the purposes of any such appeal any such order shall
be deemed to be an order of the Supreme Court." I am particularly
referring to this decision because certain observations of Lord Denning on
which reliance has been placed by Mr. Daphtary will have to be understood with
reference to this provision of law. Exercising jurisdiction under this section,
the West African Court of Appeal set aside the order of the Deputy Judge. In
the first instance the Attorney-General sought leave to appeal to Her Majesty
in Council from the West African Court of Appeal under s. 5 of the West African
(Appeal to the Privy Council) Order in Council. 1949, which is as follows
"Applications to the, court for leave to appeal shall be made by motion or
petition within 21 days from the date of the judgment to be appealed from, and
the (1) [1961] A. C. 617.
919 applicant shall give the opposite party
notice of his intended application." The West African Court of Appeal
declined to grant leave to appeal to the Attorney-General on the ground that
notice-had not given within the time mentioned in the above order to Mr. X. The
Attorney-General made an application to the Judicial Committee for special
leave to appeal from the two orders mentioned above of the West African Court
of Appeal.
That petition was filed under s. 31 of the
West African (Appeal to Privy Council) Order in Council, 1949, which runs as
follows "Nothing in this order contained shall be deemed to interfere with
the right of His Majesty upon the humble petition of any person aggrieved by
any judgment of the Court to admit his appeal there from upon such conditions
as His Majesty in Council shall think fit to impose." The question that
arose before their Lordships was whether the Attorney-General was a person
aggrieved' under the above order.
In discussing this question Lord Denning at
page 634 observes:
"....... The words person aggrieved' are
of wide import and should not be subjected to a restrictive inter predation.
They do not include, of course a mere busy body that is interfering in things
which do not concern him: but they do include a person who has a genuine
grievance because an order has been made which prejudicially affects his
interests. Has the Attomey-General a sufficient interest for this purpose?
Their lordships think that he has. The AttorneyGeneral in a colony represents
the Crown as the guardian of the public interest. It is his duty to bring
before' the judge any misconduct of a barrister or solicitor which is of
sufficient gravity to warrant discriplinary action. True it is that if the
judge acquits the practitioner of misconduct, no appeal is open to the Attorney
General. He has done his duty and is not aggrieved. But if the judge finds the
practitioner guilty of professional misconduct, and a Court of Appeal reverses
the decision on a ground which goes to the jurisdiction of the judge, or is
otherwise a point in which the public interest is concerned, the
Attorney-General is a person aggrieved' by the decision and can properly
petition Her Majesty for special leave to appeal. It was for these reasons that
their Lordships rejected the preliminary objection and held that the
Attorney-General was a 920 person aggrieved' by the decision of the West
African Court of Appeal." The observations made in the above extract, in
my opinion, have to be related to the particular provision of the order in
Council which the Judicial Committee was considering. In the case before the
Judicial Committee, the Attorney-General had initiated the disciplinary
proceedings against the Barrister. Under S. 14, there was only a very limited
right of appeal and that too in favour of the barrister or solicitor in respect
of the orders mentioned therein. The Attorney-General, though he may have been
the complainant under S. 14 had no right of appeal if the barrister was
acquitted. That is why Lord Denning states that it is true that if the Judge
acquits the practitioner of misconduct no appeal is open to the
Attorney-General. This view, with respect, is correct because S. 14 does not
give a right of appeal to the Attorney-General. Lord Denning, no doubt, has
further stated that the Judicial Committee has rejected the preliminary
objection in view of the fact that it was of the opinion that in the case
before it a question of jurisdiction or a point of public interest is involved
and therefore, the Attorney-General is a person aggrieved.
I have already indicated that-there are no
restrictions or limitations imposed in S. 37 of the Act giving a right of appeal
only to the advocate who may have been found guilty.
On the other hand, the words "any person
aggrieved" in S. 37 are very wide, and as observed by Lord Denning in the
opening part of the above extract these words should not be subjected to a
restrictive interpretation. In the view that I take that the Advocate-General
has an unqualified right of appeal under s. 37(1) I do not think it necessary
either to refer to Art. 165 of the Constitution nor do I think it necessary to
consider the further question whether the appeal filed by the Advocate-General
before the Bar Council of India relates to any question of jurisdiction or a
point of public interest.
To conclude, the appeal filed by the
Advocate-General of Maharashtra before the Appellate Committee was competent
and this point has to be held against the Appellant. The result will be that
the appeal before us will have to be heard on merits.
RAY, J. I agree with Vaidialingam, J. I
desire to express my separate opinion in view of the importance of the question
raised in this appeal.
This is an appeal from the order dated 26
October, 1969 of the Disciplinary Committee of the Bar Council of India
suspending the appellant from practice for a period of one year.
921 An appeal to the Disciplinary Committee
of the Bar Council of India was preferred by Shri H. M. Seervai, Advocate
General of Maharashtra against the order dated 17 October, 1968 of the Bar
Council of Maharashtra holding that the appellant was not guilty of
professional misconduct or otherwise.
Before the Disciplinary Committee of the Bar
Council of India a preliminary objection was taken by AdiPheroz Shah Gandhi as
to the maintainability of the appeal preferred by the Advocate General of
Maharashtra.
The appellant pressed the same preliminary
objection in this Court, namely, that the Advocate General of the State of
Maharashtra could not prefer an appeal against an order of the Disciplinary
Committee of the State Bar Council.
The relevant provision for appeal to the Bar
Council of India is to be found in section 37 of the Advocates Act, 1961
(hereinafter referred to as the Act). There are two sub-sections of section 37.
The first sub-section enacts that any person, aggrieved by an order of the
Disciplinary Committee of the State Bar Council made under section 35 may,
within sixty days of the date of the communication of the order to him, prefer
an appeal to the Bar Council of India. Sub-section (2) of section 37 states
that every such appeal shall be heard by the Disciplinary Committee of the Bar
Council of India.
The present appeal is under section 38 of the
Act which confers right of appeal to the Supreme Court by any person aggrieved
by an order made by the Disciplinary Committee of the Bar Council of India.
The entire controversy in this appeal centers
on the meaning of the words any person aggrieved by an order of the
Disciplinary Committee of the State Bar Council' occurring in sub-section (1)
of section 37 of the Act. The same words also occur in section 38 of the Act.
Mr. Daphtary on behalf of the appellant
contended first that the Advocate General did not represent public interest and
could not therefore be said to be a person aggrieved by an order of the
Disciplinary Committee. Secondly, that the provisions in section 35 of the Act
that the Advocate General was entitled to a notice from the Disciplinary
Committee of the date of hearing and the provision that the Advocate General
was entitled to be heard by the Disciplinary Committee could not have the
effect of making the Advocate General a party, and, thirdly, the Advocate
General was an impartial person and his duty would end by making submissions,
if any, before the Disciplinary Committee and he would 922 not be a person
aggrieved either by an order of dismissal of a complaint against the Advocate
or by any order passed against the Advocate.
Notices were given to the Attorney General
and the Advocates General of different States in view of the importance of the
question involved in this appeal. Mr. V. S. Desai on behalf of the Advocate
General of Maharashtra, Mr. Setalvad on behalf of the Bar Council of India, Dr.
Seyied Muhammad on behalf of the Attorney General, Mr. Datar counsel for the
Maharashtra State Bar Council of India, Dr. Seyied Muhammad on behalf of the of
other States all contended that the Advocate General would have the right under
the Act to prefer an appeal as a person aggrieved by an order of the
Disciplinary Committee of a State Bar Council.
Various decisions were cited at the Bar to
illustrate the meaning of the words person aggrieved'. One group of decisions
is based on the locus classics in Re. Ex-parte Sidebotham(1). The other line of
decisions is to be found in Ex-parte Official Receiver, In Re. Reed. Bowen
& Co.(2) and Sevenoaks Urban District Council v. Twynam(3). James, J. in
the case of Ex-parte Sidebotham said that "a person aggrieved' must be a
man who has suffered a legal grievance, a man against whom a decision has been
pronounced which has wrongfully deprived him of something, or wrongfully
refused him something, or wrongfully affected his title to something."
Lord Esher, M. R. on the other hand in Ex-parte Official Receiver In Re. Reed,
Bowen & Co.(2) said that the meaning given by James, L.J. to the words
person aggrieved' would not be an exhaustive definition and the words would
include a person who has asked for a decision for which he had a right to ask,
and has been wrongfully refused. In the Sevenoaks(3) case Lord Hewart, C.J.
said "that when a person might make an objection and was entitled to a
decision upon it he would, if the decision was adverse to him be, able to
appeal".
These decisions indicate that the words
person aggrieved' would have different shades of meaning in accordance with the
tenor of the relevant statute. The observations of James, L.J. in the case of
Ex-parte Sidebotham turn on the meaning of the words person aggrieved'
occurring in the English Bankruptcy Act, 1914 which, inter alia, provided that
the orders of the Court in bankruptcy matters except in cases specially
excluded were subject to appeal at the instance of any person aggrieved even if
he had not appeared in the court below. It is in the context of the English
Bankruptcy Act that creditors, trustees, administrators of a debtor (1) 14 Ch.
D. 458 (3) [1929] 2 Y..B. 404.
(2) 19 Q.B.D. 174.
923 or bankrupt would have a legal grievance
against whom a decision has been pronounced which has wrongfully deprived him
of something, or wrongfully refused him something, or wrongfully affected his
title to something.
Lord Hewart, C.J., in Sevenoaks case(1) said
"the problem is not what is the meaning of the expression person
aggrieved' in one or dozen statutes but what is its meaning in this part of the
Statute". In that case the relevant provision of the Public Health Act
conferred a power on a local authority to provide within that district suitable
parking place for vehicles. The statute further in that case contemplated a
notice of the proposal to acquire land for using it as a parking place and
objections, if any. to such proposal. When objections were made, the local
authority would have to consider them. In the Sevenoaks case the Urban Council
considered the objection of a rate payer and thereafter proceeded with the
scheme of the parking place.
Lord Hewart, C.J. in giving meaning to the
words person aggrieved' in that case said that first a person was an author of
an objection, and, secondly, he was aggrieved by the refusal of his objection.
It was held that a special individual right was infringed. In the Sevenoaks(1)
case there was neither a pecuniary nor a proprietary grievance.
The action of the local authority in
providing a parking place invited objections. It is the refusal of that
objection which constituted a grievance and it was a grievance sustainable in
law.
Mr. Daphtary relied on the observations of
James, L.J. in Re. Sidebotham (2) that a, disappointed person would not be a
person aggrieved' and also on the observations of Lord Coleridge in Queen v.
Keepers of the Peace and Justices of the County of London (3 ) that one would
not be an aggrieved person because someone was held not to have done wrong. In
other words, it was said that the Advocate General would make submissions or
advance contentions and the nonacceptance by the Disciplinary Committee of such
submissions would not constitute either a legal grievance or rejection of a
remedy asked for.
Mr. Daphtary also leaned heavily on the
decision of the Judicial Committee in Attorney General of Gambia v. Pierre Sarr
N' Jie(4) in support of two propositions. First, that the Judicial Committee
found in the Gambian case that in the colonies the Attorney General represented
the Crown and was therefore the guardian of the public interest. Mr. Daphtary
submitted that the Advocate General did not represent public interest in our
country and therefore could not be said to be a guardian of public interest.
Secondly, the Judicial Committee in the Gambian case said that in (1) [1929] 2
K.B. 404.
(3) 25 Q.B.D. 357.
(2) 14 Ch. D. 458.
(4) [1961] A. C. 617.
924 relation to disciplinary proceedings if a
legal practitioner was acquitted of misconduct no appeal was open to the
Attorney General because he had done his duty and was not aggrieved. Extracting
that proposition from the Gambian case Mr. Daphtary submitted that similarly
the Advocate General could not have any grievance where an Advocate was acquitted.
The purpose and the provisions of the Advocates
Act, 1961 will determine whether the Advocate General is a person aggrieved
within the meaning of the relevant sections in the Act. It may not be out of
place to refer to the Bar Councils Act, 1926 which dealt with disciplinary
conduct of practitioners. Prior to the Advocates Act the High Court under the
Bar Councils Act, 1926 had power to suspend any advocate from practice whom it
found guilty of professional or other misconduct. Under the said 1926 Act upon
receipt of a complaint made to it by any court or by Bar Council or by any
other person that any Advocate had been guilty of misconduct, the High Court if
it did not summarily reject the complaint referred the case for enquiry to the
Bar Council or after consultation with the Bar Council to the Court of a
District Judge and the High Court might of its own motion refer any case in
which it had reason to believe that any such Advocate had been so guilty. If
any case was referred under the Bar Councils Act, 1926 for enquiry, the case
was to be enquired into by the Committee of the Bar Council which was called
the Tribunal. The Tribunal consisted of not less than three and not more than
five members of the Bar Council appointed for that purpose by the Chief Justice
or Chief Judge of the High Court, and one of the members so appointed was the
President of the Tribunal.
The finding of a Tribunal was forwarded to
the High Court through the Bar Council and the finding of a District Court was
to be forwarded direct to the High Court with a copy to the Bar Council. On
receipt of the finding the High Court was to fix a date for the hearing of the
case and notice of the date so fixed was to be given to the Advocate concerned
and to the Bar Council and to the Advocate General. The High Court was also
required under the statute to afford the Advocate concerned and the Bar Council
and the Advocate General an opportunity of being heard before orders were
passed in that case.
Mr. Desai relied on the provisions of the Bar
Councils Act, 1926 to show that under the said Act notice was to be given to
the Advocate General and that the Advocate General was entitled to be heard and
he relied on a decision of the Judicial Committee in Advocate General of Bombay
v. Phiroz Bharucha(1) and the decision of this Court in Bhataraju Nageshwara
Rao v. The, Hon'ble Judges of the Madras High Court & Ors. (2 ) in support
of two (1) 62 I. A. 235: 37 Bom. L. R. 722.
(2) [1955] 1. S.C.R. 1055.
925 propositions, namely, that the Advocate
General could prefer an appeal and in an appeal preferred by the Advocate
concerned, the Advocate General would be a respondent to such an appeal. In
Bharucha's case(1) certain Advocates were members of Associations declared
unlawful by Government and they were convicted of offences punishable under
section 17(1) of the Criminal Law Amendment Act, 1908. The High Court did not take
any steps, against the Advocates an the ground that it did not consider that
membership of an unlawful Association would render the Advocates unfit for the
exercise of the profession. The Advocate General of Bombay made applications
for special leave before the Judicial Committee to appeal against the decision
of the High Court. The Judicial Committee did not grant any special leave and
agreed with the view of the High Court.
No question was raised in the applications
before the Judicial Committee as to the maintainability of the applications for
special leave. It should be noticed that under the Bar Councils Act there was
no provision for any appeal. Mr, Desai rightly relied on the decision of the
Judicial Committee not for an actual decision that the, Advocate General had a
right of appeal but for the purpose of showing that the Advocate General had
not only locus standi to make an application for leave but also could be said
to have been aggrieved by an order in relation to professional misconduct of an
Advocate. The Judicial Committee would not have entered into the merits of the.
case if the Advocate General had no right to
apply for leave to, appeal.
The decision of this Court in Bhataraju's
case(2) was to the effect that in an appeal preferred to the Supreme Court by
an Advocate against whom an order of suspension was passed by the High Court
under section 12 of the Bar Councils Act, the proper respondents would be the
complainant, if any, the Bar Council and the Advocate General of the State
concerned and not the High Court. The appeal to this Court in Bhataraju's
case(2) was by special leave. This Court held that the Advocate General, the
Bar Council and the complainant would be parties to the appeal on the ground
that notices under the Bar Councils Act had been issued top those persons. The
decisions of this Court and the Judicial Committee both indicate, that the
Advocate General under the Bar Councils Act had locus standi in making an
application for leave to appeal and being a respondent to an appeal preferred
by the Advocate.
The position held by the High Court under the
Bar Councils Act, 1926 is now occupied by the Bar Council under the Advocates
Act. There are State Bar Councils and there is also a Bar Council of India.
Every Bar Council is a body corporate. The (1) 62 I.A. 2350 (2) [1955] 1 S.C.R.
1055.
926 functions of the State Bar Council are
inter alia to admit persons as advocates on its roll; to prepare and maintain
such roll; to entertain and determine cases of misconduct against advocates on
its roll; to safeguard the rights, privileges and interest of advocates on its
roll. The functions of the Bar Council of India are to lay down standards of
professional conduct and etiquette for advocates, to lay down the procedure to
be followed by the Disciplinary Committee of the Bar Council of India and the
Disciplinary Committees of the State Bar Councils, to safeguard the rights,
privileges and interests of advocates.
A Bar Council is empowered under the Act to
constitute one or more Disciplinary Committees.
Sections 35 to 44 deal with conduct of
Advocates and powers of the Disciplinary Committees of the State Bar Councils
as also of the Bar Council of India. Under section 35 of the Act 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 of a State Bar Council, if it does not summarily
reject the complaint, shall fix a date for the hearing of the case and shall
cause. a notice thereof to be given to the advocate concerned and to the
Advocate General of the State. The Disciplinary Committee of a State Bar
Council after giving the advocate concerned and the Advocate General an
opportunity of being heard, may dismiss the complaint or reprimand the
advocate, suspend the advocate from practice for such period as it may deem
fit, or remove the name of the advocate from the State roll of advocates. Where
any notice is issued to the Advocate General, the Advocate General may appear
before the Disciplinary Committee of the State Bar Council either in person or
through any advocate appearing on his behalf. These provisions establish first
that the Advocate General is entitled to a notice of the date of hearing,
secondly, that no order can be made by the Disciplinary Committee without
giving an opportunity to the Advocate General of being heard, and, thirdly,
that the Advocate General may appear in person or through any advocate. It
cannot be said that the Advocate General is appearing as a friend of the Court.
The right of the Advocate General to appear is based on statute. The word may'
is used to indicate the choice of the Advocate General to appear in person or
through any advocate. He may choose not to appear at all. But when the Advocate
General does appear, he does so by virtue of the statutory rights and powers
conferred on him. It is, therefore, necessary to know as to why notice under the
Act is given to the Advocate General and why he is to be heard before an order
is made by the Disciplinary Committee.
The Judicial Committee in the Gambian case
found that the name of N'Jie was struck off the roll of barristers and
solicitors of 927 the Supreme Court of Gambia by an order of Abbott, J., Deputy
Judge of the Supreme Court in the Colony of Gambia.
The Deputy Judge had jurisdiction to
represent the Chief Justice in the exercise of his judicial powers. The power
to strike the name of the legal practitioner off the roll was held by the
Judicial Committee not to be a judicial power but an administrative one of the
Chief Justice of the Supreme Court of Gambia. Therefore, the order of Abbott,
J.
was without jurisdiction. The West African
Court of Appeal under those circumstances set aside the order of Abbott, J.
The Attorney General of Gambia thereupon
preferred an appeal to the Judicial Committee. An appeal to the Privy Council
lay under section 31 of the West African (Appeal to Privy Council) Order in
Council, 1949. Broadly stated, the provision was to the effect that any person
aggrieved by any judgment of the Court could prefer ail appeal to His Majesty.
The Judicial Committee construed the words person aggrieved' occurring in
section 31 of the West African Order in Council, 1949 not to be subjected to a
restrictive interpretation but to include a person who has a genuine grievance
because an order has been made which prejudicially affected his interest. The
Attorney General of Gambia was found to have sufficient interest for the
purpose and the interest was held to be a public one which the Attorney General
represented. The Judicial Committee also said that if the Judge found the
practitioner guilty of misconduct and the West African Court of Appeal of
Gambia reversed the decision which went to the jurisdiction of the Judge, or
was otherwise a point in which public interest was concerned, the Attorney
General would be a person aggrieved by the decision. The Judicial Committee
construed the words person aggrieved' to include the Attorney General of Gambia
as representing the public interest.
The most significant feature in sections 35
and 36 of the Act is that the Disciplinary Committee does not either give any
notice to or hear the complainant. On the contrary notice is given under
section 36 to the Attorney General and under section 35 to the Advocate
General. The Disciplinary Committee without giving the Attorney General in one
case and the Advocate General in another case an opportunity of being heard
cannot pass any order against the Advocate concerned. The Attorney General
under Article 76 of the Constitution and the Advocate General under Article 165
of the Constitution have to discharge the functions conferred on them by or
under the Constitution or any other law for the time being in force. The Advocates
Act concerns the Advocate and it is in the fitness of things that the Attorney
General and the Advocate General of a State are heard as persons representing
the profession which assists the litigant public and the courts in the
administration of justice. The Attorney General and the Advocates General of
States are persons of high standing 928 and with long experience in the profession
and it is indisputable that they will ever adopt any partisan attitude in
proceedings before the Disciplinary Committee. The Advocates Act gives special
preeminence to the Attorney General and the Advocate General in disciplinary
proceedings because it is not an attempt of the Disciplinary Committee to
redress the grievance of an individual complainant but to find out whether
there is any breach of professional standard and conduct. The high tradition,
dignity and purity of the Bar is to be maintained. The Attorney General and the
Advocate General are heard because they are heads of their respective Bar and
the proceedings affect discipline and dignity of the Bar and touch the professional
conduct of an Advocate.
They are not parties to a lis'. They have no
personal or pecuniary or proprietary interest in the matter. It is manifest
that their locus standi and interest is based on professional code of conduct
and for the purpose of upholding the purity of the Bar and preservation of
correct standards and norms in the profession. The Attorney General and the
Advocates General will uphold the professional discipline, dignity and decorum
and that is why no order is made by the Disciplinary Committee without giving
them an opportunity of being heard.
The issue before the Disciplinary Committee
is whether there has been professional misconduct and the question has to be
looked at purely from the point of view of profession. The profession touches
the public on the one hand and the courts on the other. On no other basis could
the presence of the Advocate General be explained.
In a recent decision of this Court in B. M.
Madnani v. Commissioner of Workmen's Compensation, Bombay(1) the Commissioner
of Workmen's Compensation preferred an appeal for enhancement of penalties
against the Advocate concerned. This Court held that the Commissioner was
entitled to maintain the appeal as a person aggrieved. Mr. Daphtary at one
stage contended that a complainant would not be a person aggrieved within the
meaning of the relevant section of the Advocates Act to prefer an appeal. The
decision of this Court repels that submission.
It may not be out of place to notice that the
Act uses the words person aggrieved' and not the words party aggrieved'. First
in disciplinary proceedings there is no party. It is a matter touching the
professional conduct of the Advocate. The enquiry is by the Disciplinary
Committee.
The Advocate is heard. The Attorney General
in one case and the Advocates General in other cases are heard. They are heard
not because they are parties but because they represent the interest of the
profession. They represent the standards to be maintained in the profession.
Suppose, (1) C.A. No. 877 of 1968 decided on October 10, 1968.
929 the Disciplinary Committee held
proceedings without giving notice to the Advocate General or made an order
Without giving the Advocate General an opportunity of being heard.
In either Case the Advocate General would be
a person aggrieved. Would the participation by the Advocate General in the
proceedings before the Disciplinary, Committee alter the position ? Neither. on
logic nor on principle could it be said that the Attorney General and the
Advocates General who have the right to be heard could not be persons aggrieved
by the decision. If they have the right to be heard they may have grievance as
to the result of the hearing.
The Attorney General and the Advocates
General receive notice and are entitled to be heard by virtue of the provisions
in the statute. They are performing statutory duties. They are not contemplated
in the statute as ordinary counsel. It was not them intention of the statute
that they would be merely neutral observers before the Disciplinary Committee
and they would have no duty to perform. They would have to express their views
one way or the other. It is true that they would be completely free from
personal favour or disfavour in these matters touching the professional
conduct. Their presence before the Disciplinary Committee is explicable only on
the ground of adhering to the correct professional code. It would therefore be
open to them Attorney-General and the Advocate General to take the view that in
a matter of sufficient gravity a completely inadequate punishment would not be
in public interest of the profession. Similarly if the punishment is severe in a
case, which did not merit such action, the Attorney General and the Advocate
General would be persons aggrieved to have it corrected.
To accede to the contention of Mr. Daphtary
that the words, 'person aggrieved' refer only to Advocates would be misreading
the provisions. The words person aggrieved' will be referable to the Advocate
concerned, the complainant and the Attorney General or the Advocate General as
the case may be. The Attorney General and the Advocate General will be persons
aggrieved because they are interested in maintaining the professional
rectitude. The Attorney General and the Advocate General have the right of
pre-audience. Such right determines that they are leaders of the profession in
their respective fields. They will ask formatting the proper standards of
professional ethics. It is from that point of view that the Attorney General
and the Advocate General will be aggrieved persons when they will find that
them interest of the Bar, the, public interest have not been proper safeguarded
by decisions of the Disciplinary Committee of-the Bar Council.
169 Sup CI/(P)-71-15 930 For these reasons I
am of opinion that the Advocate General of the State of Maharashtra is
competent to appeal as a person aggrieved under section 37 of the Advocates
Act, 1961.
ORDER In accordance with the opinion of the
majority, the appeal is allowed and the order of the Bar Council of India is
set aside. There shall be no order as to costs.
V.P.S.
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