Surajmal Surolia Vs. The Bar Council of
India & Ors  INSC 75 (28 March 1974)
RAY, A.N. (CJ) REDDY, P. JAGANMOHAN SARKARIA,
CITATION: 1974 AIR 1212 1974 SCR (3) 808 1974
SCC (4) 635
Advocates Act 1961, (25 of 1961)--Sanad
granted by a princely State which was not a covenanting state--Sanad did not
show under what law it was issued--If entitled to enrol as an advocate under
The petitioner was granted a Sanad by Ijlas
Thikana Khetri which was the highest court in. a native state. On the basis of
the Sanad the petitioner practiced in another native State for some years and
later joined service. In 1955 his application for recommencing practice was
rejected by the High Court of Rajasthan on account of his not making an
application before the appointed day in December, 1951.
Later the petitioner applied to the Delhi
State Bar Council for enrollment under s. 24(3) of the Advocates Act which was
rejected. Sub-section 3 to section 24 says that a person who has for at least
three years been a vakil or a pleader or a mukhtar or was entitled at any time
to be enrolled under any law as an Advocate of a High Court (including a High
Court of a former part B State) may be admitted as an advocate on a State roll.
Dismissing the appeal.
HELD : On the material placed before the
Delhi Bar Council for the purpose of the petitioner's enrolment it could not be
held that the decision of the Bar Council was incorrect.
If the petitioner were actually qualified
under the Act for enrolment as an advocate and had been wrongfully refused
enrolment by the authorities the question of infringement of his fundamental
rights under Article 19(1)(g) would have arisen. [912 D-E] Admittedly the
petitioner did not come under the first part of sub-section 3(a) of section 24
of the Advocate Act since he was neither a vakil nor a pleader nor a mukhtar.
The Sanad on which he relied upon did not show under what law it was issued.
Further, Thikana Khetri was not one of the covenanting States of the United
State of Rajasthan. [811 E] The petitioner had not taken any steps in
accordance with the law to get himself enrolled under the Bar Council Act or
any other Act entitling him for enrolment; nor did he pursue the matter further
in that behalf when his application had been rejected by the High Court under
s. 49 of the Rajasthan High Court Ordinance (15 of 1949) [812 D]
ORIGINAL JURISDICTION : Writ Petition No. 424
Under Art. 32 of the Constitution of India
for the enforcement of fundamental rights.
Ch. Ram Sarup and R. A. Gupta, for the
N. H. Hingorani, for respondent no. 1.
Hardev Singh, for respondent no. 2.
R. N. Sachthey, for respondent no. 3.
ARGUMENTS For the petitioner : The
petitioner's case was fully covered by S. 24(3) of the Advocates' Act as he had
practised as Vakil for three years before the coming into force of this Act. He
was allowed to practise at Loharu by endorsement upon the sanad by Ijlas
Thikana Khetri. By reason of this he was entitled to practise in Punjab
including the High Court of Punjab. Secondly, the petitioner was entitled to be
enrolled as an advocate under r. 421 of the Rajasthan High Court Rules 809 1952
but the date mentioned for application for enrolment had expired before the
publication of the rules and hence he could not apply within the time limit
For the respondent No. 1 : The petitioner's
application to the Delhi Bar Council for enrolment as an Advocate under section
24 of the Advocates Act, 1961 was rejected on the ground that the petitioner
was not a law graduate and that the court of Ijlas Thikana Khetri where he was
enrolled as an advocate was not a High Court. It is conceded by him that he is
not qualified to be enrolled as an Advocate under section 24(1) of the, said
Act but contended that his case is covered by section 24(3) as he had practised
as a vakil for three years in the court of Ijlas Thikana Khetri and was
entitled at any time to be enrolled under any law as an Advocate of a High
Court of a former Part B State.
The question arises whether Khetri State was
one of the covenanting states of United State of Rajasthan. The United State.
of Rajasthan (consisting of 14 covenanting states) came into existence with
effect from May 15, 1949 and Thikana Khetri was not one of them.
The Rajasthan High Court Ordinance No. XV of
1949 provided for the establishment of the Rajasthan High Court and abolition
of all High Courts in the covenanting States. The Part B States (Law) Act No.
111 of 1951, provided for extension of the Indian Bar Councils Act, 1926 to
Part B States. Under section 8(2) of the Bar Councils Act it was obligatory for
the Rajasthan High Court "to prepare and maintain a roll of Advocates of
the High Court in which shall be entered the names of all persons who were as
Advocates, Vakils or pleaders entitled as of right to practise in the High
Court before the date on which the section comes into force in respect
thereof" and as the petitioner was not practising or was not entitled to
practise in the High Court of any of the covenanting states his name could not
be entered on the roll of Advocates under the said section. The Rajasthan High
Court Rules 1952 had no application to his case.
The petitioner's alternative argument that by
Virtue of endorsement on his sanad he was entitled to practise in the State of
Loharu, which was one of the States merged in East Punjab and in view of its
merger he was entitled to practise in Punjab including the High Court of that
state is without any substance. The petitioner has not produced anything to show
that he was entitled to be enrolled as an Advocate in the State of Loharu and
later in the state of East Punjab.
The case of the petitioner is not covered by
section 24(3) of the Advocates Act.
For the Bar Council of India : Assuming that
the impugned decision was erroneous it cannot amount to infringement of the
petitioner's fundamental right under Art. 19(1)(g) of the Constitution [(1955)
2 S.C.R. 1113; A.I.R. 1962 S.C.
1183 and 1971 Supp. S.C.R. 688]. Since Ijlas
Thikana Khetri was not a High Court and Khetri was not even a 'State' the sanad
relied upon by the petitioner did not give him the status of a vakil so as to
confer a right under s.
24(3) of the Advocates Act to entitle him to enroll
as an Advocate.
810 The Judgment of the Court was delivered
by Goswami, J. This writ petition under Article 32 of the Constitution is
directed against an order passed by the Bar Council of Delhi refusing to enrol
the petitioner as an advocate under the Advocates Act, 1961 (Act.25 of 1961),
hereinafter referred to as the Act. Since the order was passed by the Delhi Bar
Council after reference to the Bar Council of India under section 26(2) of the
Act, both the Bar Councils are impleaded as the first and the second
respondents respectively. The third, respondent is the-, Union of India in the
Ministry of Law since the petitioner takes an additional ground that section 26
(2) of the Act is in conflict with section 48A of the same Act.
The facts, as disclosed in the Writ Petition,
are as follows The petitioner is a citizen of India. Under the laws then
prevailing be was granted sanad by the highest court Ijlas Thikana Khetri on
22nd November, 1936. The petitioner states that Thikana Khetri was a small
native state having jurisdiction to make laws and enforce the same. On the
basis of that sanad the petitioner started practice at Loharu, another native
state, in 1944 and continued to practise till May 1947 when he joined service
as a Civil Supply Officer, Khetri. The petitioner informed about his joining
service to the enrolment authority and received a telegram from Diwan of Khetri
(Annexure-A) which takes note of his joining, service and discontinuance of
Although the petitioner has stated that this
telegram was received from Diwan of Khetri, a perusal of the same shows that
the telegram was really from Diwan of Loharu, which was the office of origin of
the telegram. The petitioner's sanad (Annexure-C) which bears the seal of Ijlas
Thikana Khetri dated 22nd November, 1936, is signed by one Hari Prasad,
Secretary, Ijlas Thikana Khetri and shows that "he has been enrolled as a
vakil and authorised to practise in all the Civil. Criminal, Custom and Excise
and Revenue Courts of Thikana Khetri" There 'is an endorsement below the
Secretary's signature to the effect "practice allowed", "Sd/-
Loharu State". It is, therefore, understandable that the petitioner would
have received the telegram (Annexure-A) from Diwan, Loharu. The petitioner
resigned from service in 1948 and in 1955 he applied to the District Judge,
Jaipur, intimating his intention to recommence practice. But his application
was rejected by the Rajasthan High Court on September 10, 1955. The petitioner
further states in his petition that his application was rejected by the High
Court under rule 421 of the Rajasthan High Court Rules, 1952, on account ,of
his not making the application before the appointed day in December 1951. It
is, however, not necessary to deal with the order of the High Court in this
case and we may only note in passing that under rule 421 the following persons
shall be qualified for admission as advocates of the High Court "Any
person whose name is borne on the roll of Advocates or Vakils of the 1 (sic)
grade of any High Court or any authority exercising the powers of a High Court
in any of the Covenanting States of Rajasthan and who was entitled to appear,
act or plead in such Court or authority:
811 Provided, that if such person not holding
the LL.B. or any higher or equivalent degree of any University established by
law in the Union of India fails to apply by the end of December, 1951, he shall
not be enrolled as an Advocate thereafter".
There is an Explanation to this rule as
follows "Practice as a Vakil of the 2nd grade under the rules of a High
Court or an authority exercising the powers of a High Court in any of the
Covenanting States shall be deemed to be a practice as a pleader".
It appears later on the petitioner applied to
the Delhi State Bar Council for enrolment basing his claim under section 24(3)
of the Act. He does not admittedly have a degree in Law from any university..
He, therefore, rests his claim under section 24(3) (a) which may be. quoted :-
24(3) : "Notwithstanding anything contained in subsection (1) a person
who- (a) has, for atleast three years, been a vakil or a pleader or a mukhtar,
or was entitled at any time to be enrolled under any law as an advocate of a
High Court (including a High Court of a former Part B State)......
may be admitted as an advocate on a State
roll........" Admittedly he does not come under the, first part of sub-
section (3) (a) since he is neither a vakil nor a pleader nor a mukhtar. His
entire claim is that he was enrolled as an advocate of a High Court in a former
Part B State, namely, Rajasthan. In order to come under the second part, he has
not drawn our attention to any law under which be was entitled to be enrolled
as an advocate of the former Part B State of Rajasthan. He entirely relies upon
the sanad (Annexure-C). It does not show under what law the sanad was issued.
Besides, the most formidable stumbling-block to his claim is that Thikana
Khetri, is not one of the covenanting States of the United State of Rajasthan.
The White Paper on Indian States does not show Thikana Khetri as one of the
covenanting States (see Pages 53-55 of the White Paper on Indian States; paras
134-138; Appendix XL and Appendix XLI at pages 274 and 283; also pages 326-335).
Under the Part B States (Laws) Act No. 111 of 1951, which came into force on
1st April,. 1951, the Legal Practitioners Act No. XVIII of 1879 and the Indian
Bar Councils Act No. XXXVIII of 1926 were extended to Part B States. Under
section 8(2) of the Bar Council Act, "the High Court shall prepare and
maintain a roll of advocates of the High Court in, which shall be entered the
names of- (a) all persons who were, as advocates, vakils or pleaders, entitled
as of right to practise in the High Court immediately before the date on which
this section comes into force in respect thereof; and 812 (b) all other persons
who have been admitted to be advocates of the High Court under this Act Earlier,
after the formation of the United State of Rajasthan, Its Rajpramukh
promulgated the Rajasthan High Court Ordinance No. XV of 1949; which came into
force on 29th August, 1949. The Ordinance provided for the establishment of the
Rajasthan High Court and abolition of all High Courts in the covenanting
States. Under section 49 of the Ordinance, on and from the appointed day,
namely, 29th August, 1949, "every Tribunal functioning as the High Court
of a covenanting State or any authority exercising_ the powers of a High Court
in such State shall cease to exist, and all cases pending before the said High
Court or authority at that date shall be transferred to and heard by the High
Curt constituted by this Ordinance, and all the records and ,documents of the several
Courts which so cease to exist, shall become, and be, the records and documents
of the High Court".
The petitioner had not taken any steps in
accordance with law to .get himself enrolled under the Bar Council Act or any
other Act entitling him for enrolment. He also did not pursue the matter
further in that behalf when his application had been rejected by the High Court
under the Ordinance. We are unable to hold that the decision of the Delhi Bar
Council is not correct on the materials produced before it for the purpose of
the petitioner's enrolment. If the petitioner were actually qualified under the
law for enrolment as an advocate and he has been wrongfully refused enrolment
by the authorities, the question of infringement of his fundamental rights
under Article 19 (1) (g) would have arisen. This, however, has not happened in
this case since the very foundation of his claim is non-existent. The Writ
Petition is, therefore, without any merit and is rejected. We will, however,
make -no order as to costs.