Registrar of The Original Side of Calcutta High Court vs Bhupati Bhushan Dalal

A.K. Sinha, J.—These appeals arise out of an order passed by D. Basu J. in writ jurisdiction of this Court upon an application made by one Bhupati Bhushan Dalal, an Advocate of this Court, under Article 226 of the Constitution of India briefly in the following circumstances:

The Petitioner who is the Respondent in these three appeals is a practising Advocate enrolled under the Advocates Act, 1961, in this Court and his case is that he is entitled to practise as a matter of right in this Court in all its jurisdiction including all original jurisdiction and, particularly, the ordinary original jurisdiction in accordance with the provisions of the Advocates Act which right, it is alleged, includes the right both to act and plead for the suitors. By a pretended rule, namely Rule 22 of Chapter I of the Rules of the Original Side of this Court, he is being prevented from exercising his lawful right to act for suitors in the original jurisdiction of this Court and in appeals from decrees or orders made in such jurisdiction. Still, further case of the Respondent is that although many Advocates, who were previously Attorneys of this Court, even after their enrolment as Advocates, have been allowed to act in the Original Side while other Advocates including the Respondent are not being so allowed to act for suitors in original jurisdiction of this Court and thereby the Respondent has been denied equal protection of law in violation of Article 14 of the Constitution. This Court has no jurisdiction under the law to make Rules for its appellate jurisdiction with regard to the right of Advocates to practise or to prevent Advocates for acting for suitors or authorise Attorneys to act in appellate jurisdiction.

Substantially, in the above background the Respondent has set out a number of grounds challenging the validity of Rule 22 of Chapter I of the Rules of the Original Side of this Court both constitutionally and statutorily and prayed for a writ in the nature of mandamus directing the Registrar, Original Side, of this Court not to give effect to Rule 22 of Chapter I and also for quashing such Rule and by a writ in the nature of certiorari a declaration that such Rule is void, inoperative and ultra vires the Constitution of India. The Respondent made a further supplementary affidavit at a subsequent date giving, inter alia, further particulars of the Advocates who were previously Attorneys and still being retained as Attorneys in the list of this Court even after their enrolment as Advocates and are still acting as Attorneys for suitors in this Court to show that the Court made a discrimination by such Rules between Advocates and Advocates without any reasonable classification and without nexus between any such Rules and the object sought to be attained. It is also alleged by the Respondent that there is no ''legal, rational or constitutional justification'' of the Division of this Court under so-called Original Side and Appellate Side and substantially upon these submissions the Respondent prayed for leave to add another prayer for restraining the administrative authority represented by the Registrar, Original Side, preventing the Advocates from acting for suitors in all jurisdictions including original jurisdiction of this Court and in appeals from orders and decrees made in such original jurisdiction. Then, there was further supplementary affidavit by the Respondent by which he challenged on various grounds a proviso added to Rule 1 of Chapter I of the Original Side Rules on October 3, 1969, and published in Calcutta Gazette dated October 16, 1969. The Respondent also in this affidavit prayed for addition of another prayer by amendment of the original petition, namely, that he was entitled to act for suitors in all jurisdictions of this Court as an Advocate without being required to comply with the Rules made by Rule 1 of Chapter I. The Respondent yet by another affidavit took several additional constitutional grounds affecting his fundamental right in the democratic set up of India by existence of Rule 22 of Chapter I of the Original Side Rules.

A Rule was issued, firstly, upon the Registrar of the Original Side of this Court but leave was granted to add the Secretary, Incorporated Law Society, Calcutta, the Secretary, Bar Association, Calcutta, and the Secretary Bar Library Club, Calcutta, as opposite parties on the view that they might be affected by the eventual order of this Court and the Rule was directed to be served upon them. Accordingly, they were all the added Respondents Nos. 2 to 4 and the Rule was opposed not only by the Registrar of the Original Side of this Court but also by the Secretaries, Incorporated Law Society and Bar Library Club, the Respondents opposite parties Nos. 3 and 4.

In the affidavit-in-opposition by Tulsi Kumar Banerjee, both an Attorney and Advocate of this Court and Secretary of the Incorporated Law Society at the material time, several preliminary points were raised against the maintainability of the petition under Article 226 as according to the Rules of the Original Side the petition was not put in either by an Attorney or a Supreme Court Advocate and on merits all material allegations as also the correctness of the submission of the grounds taken in the petition were denied. Tulsi Kumar Banerjee also dealt with all subsequent supplementary affidavits made by the Respondent in support of the original petition and equally denied all material allegations or correctness of submissions and also the validity of the further grounds taken by the Petitioner. In fine, his case was that the Rules framed by this Court in exercise of the original jurisdiction sought to be challenged by the Respondent were quite valid and constitutional and they were neither discriminatory nor unreasonable restriction upon the Petitioner''s right to carry on his profession.

The Registrar, Original Side, affirmed an affidavit-in-opposition, as appears, on November 19, 1970, to a supplementary affidavit sworn by the Respondent on November 17, 1970, only by way of information to the Court, namely, that no Attorney still then applied for enrolment in terms of proviso to Rule 1 of Chapter I of the Original Side Rules and, though he opposed the Rule, no other affidavit-in-opposition was used. No other affidavit was also filed by the Secretary, Bar Library Club, but they opposed the Rule.

The learned trial Judge though held that the impugned Article 22 or proviso to Rule 1 of Chapter I of the Original Side Rules was neither unconstitutional nor statutorily invalid, took the view that there was inherent conflict between Rule 22 and the impugned proviso to Rule 1 of Chapter I of the Original Side Rules and Rule 22 still survived. Accordingly, the learned Judge directed the Registrar to place these Rules before the Court in its rule-making capacity so that Rule 22 may be read subject to the proviso to Rule 1 of Chapter I of the Original Side Rules. The learned trial Judge also held that though rule-making power is conferred upon the High Court u/s 34 of the Advocates Act, the position regarding the Advocate''s right to practise as of right remained unaltered and Rule 22 or proviso to Rule 1 would still be invalid as the learned Judge thought that the expression ''original jurisdiction'' could only mean the civil suits instituted in the original jurisdiction of this Court and not other original matters enumerated in various clauses in the Letters Patent and in case the expression ''original side'' could not be equated with the term ''original jurisdiction'' and, therefore, Rule 22 or proviso to Rule 1 could not be enforced in any jurisdiction of this Court other than its original jurisdiction. Further, Rule 22 could not have any application to appeals from original jurisdiction as the only power reserved for the High Court to make rules regulating the practice was confined only to such original jurisdiction and not to appellate jurisdiction and in this respect there was no difference between appeals from the Original Side of this Court and appeals from other Courts subordinate to this Court as provided in Clause 15 and 16 of the Letters Patent respectively. Accordingly, the learned Judge made the Rule absolute to this extent that Rule 22 and the proviso to Rule 1 of Chapter I of the Original Side Rules were declared ultra vires insofar as they relate to the jurisdiction ''other than the original jurisdiction'' and the Registrar was restrained from preventing the Petitioner from acting for suitors in all jurisdiction other than original to comply with the requirements of the proviso. The Registrar was also, as noticed earlier, directed to place both the Rules before the rule-making body of the Court drawing the attention of that body as to the need for amending the Rules on the points suggested in the judgment. That is how in short the Registrar, Original Side, and the Secretary, Incorporated Law Society, and the Secretary, Bar Library Club, felt aggrieved and preferred the above three respective appeals. The Respondent has also put in cross-objections on points found against them.

Before we come directly to the points taken by the Appellants or the counter-points pressed by the Respondent, it would be useful to have a glimpse of history leading to the establishment of the High Courts by Royal Charter under Letters Patent issued from time to time and series of Acts and enactments uptill today relating to their powers and jurisdiction both in the Original and Appellate Sides including also the power regulating the right of several classes of lawyers to practise. Such history though quite long and by now practically a forgotten episode of distant past, nonetheless if recapitulated, would always excite interest. For the British judicial system introduced in this country emerged from a state of utter confusion and uncertainties prevailing at the time of declining Muslim rule and simultaneous occupation, though gradual, of this land by the English. All the annals of conquest and subjugation unmistakably show that the conqueror, if intends to perpetuate his domination over the occupied country, must also as a matter of policy establish a strong government. So, the British on and after their conquest of this land, to perpetuate their rule in India, had always been keen to set up a powerful government and thus gain its firm footing upon this land. As administration of justice is one of the vital limb of a well-organised government, it had always usurped their anxious consideration for founding an effective judicial system in this country. According to Morley, one of the oldest authorities on the subject,

the earliest power emanating from the Crown for the administration of justice in India dates as far back as the reign of James I, who by Charter granted in the year 1622 authorised the old East India Company to chastise and correct all English persons residing in the East Indies and committing any misdemeanour either with Martial Law or otherwise. (See Administration of Justice in British India by W.H. Morley.

Of course, in fact, Charles II by his Royal Charter dated April 3, 1661, gave the Governors and Councils of several places belonging to the company in the East India power

to judge all persons belonging to the said Governor and company or those who live under them in all causes, whether civil or criminal, according to the law of the kingdom, and to execute all orders.

It is not clear as to what types of Courts were actually established for judging all persons on the lands in occupation of the British then.

According to the same historian, on the representation of Court of Directors of the United Company by Royal Charter granted in 1726, all the Courts were superseded and the East India Company was empowered to establish at each of the settlements a Court consisting of a Mayor and nine Aldermen to be the Court of Record and try and determine all civil suits, actions and pleas between party and party. By the same Charter, Courts of Oyer and Terminer, as in England, then were constituted at each of the settlements consisting of Governors and Councils for the trial of criminal offences excepting treason committed within the towns of Madras, Bombay and Calcutta or within any of the factories thereto or within 10 miles of the same. In 1753, however, a new Charter was granted by King George II re-establishing the Mayor''s Court in the three Presidencies, namely, Madras, Bombay and Calcutta, without of course any material alterations. But, these Courts were limited in their civil jurisdiction to litigations between persons not natives of these towns unless there was consent of the parties. The jurisdiction of the Government Court in criminal matters was also limited to offences committed within several towns and the factories or places subordinate thereto. Twenty years later, on the basis of an enactment passed by British Parliament by Royal Charter dated March 26, 1774, the Supreme Court of Judicature at Fort William in Bengal was established which was empowered to exercise and perform all civil, criminal, admiralty and ecclesiastical jurisdiction and to determine all actions and suits arising in Bengal, Bihar and Orissa and all pleas, real, personal or mixed, against the united company or the Mayor and the Aldermen and any of the King''s subject residents in Bengal, Bihar and Orissa and against all other persons inhabitants of India residing in these places upon any contract or agreement in writing with any of the King''s subjects on a cause action exceeding Rs. 500/- and on a further agreement that in case of dispute the matter should be determined in the Supreme Court. It was also empowered to appoint guardians of infants and insane persons and all matters relating to probate and matrimonial jurisdiction. We need not, however, go into other details for it was a long Charter and the powers and jurisdiction of the Supreme Court were defined in details. Although, at first, there was provision for appeal from civil Courts subsequently that was withdrawn. On the basis of the same enactment, Supreme Courts were also established in Madras and Bombay invested with same powers as the Supreme Court at Fort William in Bengal. In the Supreme Court what is relevant for our present purpose is that these Courts were authorised to appoint their own ministerial officers and also empowered to admit and enrol such and so many Advocates and Attorneys, as shall be deemed fit and proper, and no other than the English and Irish Barristers and Attorneys, persons were allowed as such Advocates and Attorneys to plead and act for the parties. It would be a difficult task, as rightly stated by Morley, to define exactly the

power and jurisdiction of Supreme Court in India given by the Statutes and Charters and question constantly arose on those important subjects which could be solved only by decision of the Courts or fresh enactments.

There were a few other Courts established in Madras and Bombay known as Recorder''s Courts which were also in the pattern of Mayor''s Court but subsequently abolished. There were also Courts of Request and Small Causes established in the three Presidencies between the years 1839 and 1850. The Court of Request, however, has long been abolished and it is well-known that the Court of Small Causes are now existing. It is well-known also that at one time Insolvency Courts and Vice-Admiralty Courts were also established but subsequently abolished. As regards criminal or quasi-criminal offences there were Justices of the Peace, Magistrates and Coroners who used to function practically as separate limbs of the Supreme Court.

The Supreme Court was established by the British King in India primarily for British subjects in English settlements but for the administration of justice amongst the local inhabitants a judicial system was established by the East India Company. Its gradual rise and progress is a long and tiresome history, but this much is well-known, however, that on the plans formulated by successive Governors of Bengal and the Regulations passed from the year 1793, different grades of civil Courts and criminal Courts came into existence culminating in the highest Court of Appeal of civil and criminal jurisdiction known as Sadar Diwani Adalat and Sadar Nizamat Adalat respectively established in the three Presidencies, namely Calcutta, Madras and Bombay, at different times. It is difficult to get a clear picture of the origin and growth of system of practice by native lawyers in those Courts established by the Company at least prior to Regulation VII of 1793. This Regulation was, however, repealed along with several other Regulations by Regulation XXVII of 1814 which was a complete code containing provision for enrolment of natives of India restricted to Hindu or Muslim community as Vakils, also described as Pleader, in the marginal notes of several sections of the Regulation by Sadar Diwani Adalat and several provincial Courts and their discharge, suspension etc. and all other connected matters regulating their right of practice in these Courts. Later, by another Bengal Regulation XX of 1833 some changes were introduced regarding remuneration of pleaders. Thereafter, as appears, Legal Practitioner''s Act of 1846 was passed which permitted people of all nationalities or religions to enrol as pleaders subject, however, to grant of certificate to practise in these Courts and about their qualifications. Morley points out that by this Act every Barrister of Her Magesty''s Courts in India was entitled as such to plead in any of the Sadar Courts of the East India Company subject to all the Rules enforced in the said Sadar Courts applicable to the pleaders. (See Morley''s Administration of Justice in British India, p. 176). This Act was again modified by another Act XX of 1853.

There were many ups and downs in the establishment of Sadar Diwani Adalat which at one time was abolished and was again re-established at the Presidency and consisted of the Governor General and other members of the Supreme Council. It received appeals from the provincial Courts and Councils and from the Board of Revenue, but in course of time Judges were appointed by the Governor-General, the Chief Judge being also a member of the Supreme Council, and the other two being selected from the covenanted services of the Company and the Sadar Diwani Adalat became the Court of Record. It is, again, a long history and it is wholly unnecessary to go into details for the purpose of the present case, but then attempts were made as were though absolutely necessary ''to bridge over the wide gulf'' as stated by Cowell in his History and Constitution of the Courts and Legislative Authorities in India (6th ed., p. 225)--

which separated the laws which they respectively administered, and the procedure which they respectively observed.

It is said

that the abolition of the East India Company, the assumption of direct responsibility of Government by the English Crown and the consolidation of the Indian empire under the Queen, which occurred in 1858, favoured the work of amalgamation which the influences of a century had impeded and prevented. Policy suggested that in re-establishing and consolidating the new empire, something more was required than an imperial army, government and legislature. A uniform criminal law, a uniform system of Courts of civil and criminal procedure and in the end a uniform civil law, so far as exclusive rights to personal laws, based upon religion, would permit and, as far as practicable, equal liability to the jurisdiction were required as a basis upon which to found a just as well as an imperial administration.

It is, however, unnecessary to state how then after the Queen''s Proclamation within a few years the Code of Civil Procedure, the Indian Penal Code and the Code of Criminal Procedure were enacted and were made applicable to the whole Indian empire and all Courts were governed by the procedure except the Supreme Court and the Courts established by the Royal Charter. It would be sufficient to say that at long last in the year 1861 a Bill was introduced into Parliament for the establishment of High Courts in India which was based on the recommendation made by the Select Committee for amalgamation of the Supreme Court and Sadar Diwani Adalat and Sadar Nizamat Adalat in each Presidency into one so as to unite the legal training of the English lawyers with the intimate knowledge of customs, habits and laws of the natives possessed by the Judges in the country as stated by Cowell in the same book (p. 226). This Act was quickly passed and by it the Crown was empowered to establish by Letters Patent a High Court for the Bengal division at the Presidency of Fort William and also at Madras and Bombay and on establishment of such High Courts, the Courts of Sadar Diwani Adalat and Sadar Nizamat Adalat would stand abolished and the jurisdiction and powers of such High Courts to be fixed also by the Letters Patent. Thereafter, it is well-known that Charters were issued in 1862, and afterwards new Charters in 1865 constituting the High Courts in Bengal, Madras and Bombay. Thus, the Supreme Court though disappeared re-appeared again in another form. The High Courts were vested in a modified form with ordinary original civil jurisdiction, extra-ordinary original jurisdiction, the original criminal jurisdiction and also extra-ordinary criminal jurisdiction--testamentary, intestate jurisdiction, matrimonial, insolvency, divorce and admiralty jurisdiction. The High Court in Bengal in place of Sadar Diwani Adalat and Sadar Nizamat Adalat was constituted as the Court of Appeal both from the civil and criminal Courts of the Bengal division of the Presidency and from all other Courts subject to its superintendence. The two other High Courts, both at Madras and Bombay, were also established by Charters issued in 1862 and further Charter in 1865 which applied to Calcutta.

Although there were thus in law fusion of two rival systems of judicial administration, the Supreme Court, as pointed out by Cowell in the same book (pp. 231-232)--"in reality survived as a distinct branch of the High Court, namely, its Original Side." Amongst other things it is said that

the law of equity which is enforced in its Original Side was the same as would have been applied by the old Supreme Court and was distinct from the rules of law, equity and good con science applied by the Appellate Side which succeeded to the old Sadar Courts. The criminal and admiralty, testamentary and matrimonial jurisdiction of the High Court in its Original Side were precisely the same as those exercised by the Tribunal to which it succeeded. Its criminal procedure too remained distinct from that of the Appellate Side--the real innovation was that the civil procedure of the old Supreme Court was swept away and Act VIII of 1859 was substituted as the Code uniformly and universally applicable throughout India. Progressive legislation establishing, as time went on, a body of Anglo-Indian Law applicable in both Courts as eventually contemplated or nearly so which was originally contemplated.

It thus also started uniformity in the criminal law (the Penal Code having come into force on January 1, 1862) and the CPC and the civil and criminal Appellate Authority dates from 1862. Since the passing of the Indian High Courts Act of 1861 and also Indian Councils Act, 1861, several other provincial High Courts by issue of Letters Patent in respect of different provinces were established. The jurisdiction and powers of these High Courts were not appreciably enlarged or altered except in the Government of India Act, 1935. (See Sections 223-227 of the Government of India Act, 1935). But we are not concerned with these powers at the present moment. So, the chartered High Courts of each of the Presidency towns remained practically the same concerning their powers and jurisdiction under the Government of India Act, 1935.

After the Government of India Act came the Constitution of India and, although the Constitution envisaged establishment of High Court for each State, the power and jurisdiction of existing High Court remained the same as existed immediately before the commencement of the Constitution except certain matters concerning the revenue or their collection as embodied in Article 225 of the Constitution. This, however, is subject to the provision of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by the Constitution. The result is that the chartered High Court at Calcutta still exercises its original jurisdiction in all matters provided in the Letters Patent of 1865 subject, however, to certain subsequent enactments made by competent Legislature affecting its powers and jurisdiction in many matters including the right of the different class of lawyers to practise in High Court.

Now, in this case, we are concerned with the right of the Advocates to practise in High Courts. Whatever might have been the powers of the Supreme Court of Judicature at Fort William in Bengal, by Clause 9 and 10 of the Letters Patent of 1865, powers were conferred upon the High Courts to approve admit and enroll such and so many Advocates, Vakils and Attorneys and to make rules for the qualification and admission of such persons with power to remove and suspend them from practice on reasonable cause, and such Advocates, Vakils and Attorneys on and after admission and enrolment would have the right to appear for the suitors, either to plead or to act or both, according to the directions and rules that may be framed by the High Court. So, according to the rules framed originally the Advocates had a right both to act; and plead in its Appellate Side, but on the Original Side they were gradually given the right to plead but not to act which was conferred on Attorneys. There were also Vakils who were not allowed either to act or plead in the Original Side but to plead and act only in the Appellate Side.

Then came the Legal Practitioner''s Act, 1879, which however u/s 4 conferred upon the Advocates right to practise as of right in any Court subordinate to the High Court but not in the High Court itself. This Act by Section 42 repealed two earlier Acts, I of 1846 and XX of 1853, and a Bombay Regulation II of 1827. Almost about half a century later in 1926, Indian Bar Councils Act was passed to ''consolidate and amend the law relating to legal practitioners''. We shall deal with and discuss in detail, if necessary, the scope and effect of several material provisions of this Act for the purpose of this case elsewhere in this judgment, but at the present moment it would be sufficient to say that this Act did not extend the right of the Advocates enrolled in the High Court to practise as of right in the Original Side of the Court, i.e. both to act and plead in the Original Side of the High Court. In other words, the provisions of Clause 9 and 10 of the Letters Patent of 1865 survived in spite of the Indian Bar Councils Act of 1926.

Then, after the commencement of the Constitution another important Act came into force, namely, the Supreme Court Advocates (Practice in High Courts) Act. This Act really dealt with the rights of the Advocates to practise in the Supreme Court of India, but its importance lies in the fact that such Advocates have been held by the Supreme Court to be entitled as of right both to act and plead in the Original Side of the Calcutta High Court: See Aswini Kumar Ghosh and Another Vs. Arabinda Bose and Another, . After declaration of such right of the Supreme Court Advocates suitable amendments were made in the Rules of the Original side of this Court in or about 1955 embodying certain provisions for enabling the Supreme Court Advocates to act in the original side. We may, if necessary, look into these rules in detail elsewhere in his judgment, but at the present moment we would only point out that the validity of these appear, however, that there were lawyers of different clause who were allowed to exist even under the Bar Councils Act.

Lastly, to wipe out the distinct classes of such lawyers and to unify them into one class, which appears to be the primary object, in 1961 the Advocates Act was passed. This Act, briefly speaking, took away the entire power of admission and enrolment from High Court of Advocates and conferred them upon the State Bar Council of each State and also upon a Central Council named as Bar Council of India to prepare a common roll of all the Advocates. As regards the right of these Advocates to practise in the High Court there are almost similar provisions to those under the Indian Bar Councils Act with powers again conferred upon the High Court to regulate their practice. There are quite a number of other provisions relating to conduct of Advocates, certain other miscellaneous provisions relating to repeal of certain other enactments and temporary and transitional provisions concerning election, terms of office of members and the rights of certain existing legal practitioners etc. We will deal, if necessary, later on in this judgment with some of those relevant provisions of this Act to determine its effect or impact upon the rules framed by this Court in the exercise of its original jurisdiction regulating the right to practice of the Advocates which are the subject-matter of controversy in the present appeal.

Now, in the background of what we have stated above, it is to be seen, firstly, whether Rule 22 of Chapter I of the Original Side Rules suffers from partial infirmities as found by the learned Judge and to that extent is ultra vires and void. Secondly, what is the effect of the new provisions in the form of proviso added to Rule 1 of Chapter X and whether they are equally invalid and void.

The points raised before us by the Appellants, namely, the Secretary, Incorporated Law Society and also on behalf of the Bar Library Club on the question of validity of Rule 22 of Chapter I of the Original Side Rules are: (i) original jurisdiction includes all jurisdiction as mentioned in several other clauses of the Letters Patent of 1965 and includes all matters which originate in this Court as a Court of first instance, i.e. in the Original Side: (ii) the appeals under Clause 15 of the Letters Patent of 1865 form a distinct class of appeals or are otherwise not the appeals before the Court of Appeal of High Court as provided in Clause 16 of the Letters Patent; (iii) the proviso with all its sub-clauses added to Rule 1 of Chapter I of the Original Side Rules is quite valid and binding insofar as it extends to all matters in which the High Court exercises its original jurisdiction or, in other words, the High Court exercises its powers as a Court of first instance; (iv) in view of Section 34 of the Advocates Act, 1961, which is now in force, the High Court is empowered to make rules both in the Appellate and in the Original Sides of the High Court to regulate the practice of the Advocates enrolled under the Bar Councils Act.

The points raised on behalf of the Registrar, Original Side, are practically the same except that the position of the Advocates both to act and plead in the appeals arising from the Original Side matters is not seriously challenged. Before we take up these points for consideration, we must take notice and dispose of two preliminary objections against the maintainability of the appeals raised by Mr. Bhattacharya, learned Advocate on behalf of the Petitioner-respondent.

In the first place, it is contended that the present appeals either at the instance of the Bar Library Club or the Incorporated Law Society are wholly incompetent as they are not the persons aggrieved. It is said that they were directed to be made parties in the Rule by the Court just because it was felt that the matter should be disposed of in their presence and not because their interests were in any way affected for the simple reason that no relief was claimed against them either jointly or severally with the Registrar, but these associations were before this Court and were heard practically on the same basis as they were heard in Aswini Kumar''s case Supra. Reliance is placed on a decision of the Supreme Court in Adi Pherozshah Gandhi Vs. H.M. Seervai, Advocate General of Maharashtra, Bombay, as also on a decision of the English Court In Re Sidebotham (1880) 14 Ch.D. 458 in aid of such contention. It is also argued that, even if the word ''aggrieved'' does not occur in the relevant Clause 15 of the Letters Patent under which the parties are entitled to prefer an appeal in the present matter if otherwise they have a right, the same principle will apply and this position, it is submitted, is supported from the view taken in a Bench decision of this Court in Union of India (UOI) Vs. Official Liquidator and Another, . This contention on behalf of the Respondent is, however, sought to be repelled on an argument, firstly, on the ground that the impugned Rules which are sought to be struck down as invalid or part of which has been struck down in fact by the judgment of the learned trial Judge would very much affect the other class of lawyers, namely, the Attorneys and Barristers practising in this Court. It is idle to suggest that their interests would not be affected at all. It is said that Rule 22 conferred power upon the Attorneys to act even in the appeal from original jurisdiction. But, that power has been taken away by the decision of the trial Judge for it has been held that the Advocates are entitled both to act and plead ''as of right'' in appeals even from the Original Side. Secondly, the proviso added to Rule 1 of Chapter I though found to be valid has been restricted in its operation limited to ordinary original civil jurisdiction which has been explained as being confined only to suits filed in the Original Side. It is submitted that the Bar Library Club and the Society were not asked to be made parties merely to assist the Court but because their interests would very much be affected by the result of the decision in the Rule. It is pointed out that the decision of the Supreme Court has no application to the facts of the present case. So, the Appellants are the persons aggrieved as their rights have been immensely affected by the result of the decision of the learned trial Judge.

The other contention raised on behalf of the Petitioner-respondent is that nobody could be a judge in his own cause. In elaborating this point, it is argued that the Rules under challenge having been framed by the Judges of this Court the same Judges or their successors are not competent to hear the matter when a dispute is raised as to the validity of the identical Rules. In other words, it is submitted that the Judges themselves being interested in the result of the litigation they cannot sit upon and decide themselves such litigation. In support of such contention, reference is made to a passage in Broom''s Legal Maxim (10th ed., pp. 68-69) and also to an English decision of House of Lords, cited as authority by the author in Dimes v. Grand Junction Canal (1852) 3 H.L.C. 759. Reliance is also placed on a decision of the Supreme Court in R. Viswanathan Vs. Rukn-Ul-Mulk Syed Abdul Wajid, and also on a decision of this Court in Shamlal Sen Pvt. Ltd. v. Collector of Customs (1962) 66 C.W.N. 948. It is, however, conceded that this principle of bias is subject to three exceptions, namely, (a) where there is statutory exceptions, (b) in case of absolute necessity; and (c) if there is waiver. But it is said that the appeals did not come within any of these exceptions. Firstly, there is no statutory exception, secondly, there was no absolute necessity to prefer an appeal in this Court as there was alternative remedy, namely, to prefer an appeal to the Supreme Court; thirdly, there is no question of waiver either on the part of the Petitioner-respondent even though the Respondent surrendered to the jurisdiction of the learned trial Judge and asked him to dispose of the Rule out of absolute necessity. It is said that waiver, if there be any, was only confined to the Rule itself and did neither, nor could, extend to successive appeals if there were any. To appreciate the meaning of the term ''bias'' reliance is placed on a decision of the Supreme Court in The Andhra Pradesh State Road Transport Corporation, Hyderabad and Another Vs. Sri Satyanarayana Transports (Private) Ltd., Guntur and Others, and also on A.K. Kraipak and Others Vs. Union of India (UOI) and Others, and Gullapalli Nageswara Rao etc. Vs. The State of Andhra Pradesh and Others, . It is, however, submitted on behalf of the Appellants Society and Bar Library Club in repelling such contention that there is no questions of bias involved in the present case. It is argued, relying on certain passage from the Principles of Administrative Law of Grifith and Street that bias may be of three major categories--(i) bias on the subject-matter; (ii) pecuniary bias and interest; and (iii) personal bias. It is said that in the field of administrative law and its operation, bias to certain extent cannot be avoided, but at the same time must have to be permitted within certain limits. Even in juristic expression in this part of the law it has become always a difficult and delicate task in drawing a line defining the limits of this permissible extent of bias in the field of administrative law. Reliance is placed on an English decision R. v. Mayor and Justices of Deal (1881) 45 L.T. 439 (441) where it has been held that a Magistrate who subscribed to the National Society for the prevention of cruelty to animals was not disabled from trying a charge brought by that body for cruelty to a horse. Although this part of the law, it is said, has not fully developed in this country, reliance however is placed on a long line of decisions of the Supreme Court, namely, The Registrar, Co-operative Societies Vs. Dharam Chand and Others, , Gullapalli''s case Supra and also on S. Pratap Singh Vs. The State of Punjab, and C.S. Rowjee and Others Vs. Andhra Pradesh State Road Transport Corporation, . In fine, it is submitted, where interest of the persons adjudicating is not pecuniary, the order will not be granted unless it is shown that his interest is substantial and of such a character that it will give rise to real likelihood of bias or that his decision was actually biased. There mere suspicion or even reasonable suspicion would not be sufficient to constitute bias.

We, however, think none of the two points raised on behalf of the Petitioner-respondent need be decided in this case for, it is conceded by Mr. Bhattacharya, that the admitted facts are that both the Bar Library Club and the Incorporated Law Society were added as necessary parties in the Rule and directed to be served as such parties by the learned trial Judge without any objection. Clearly, the Bar Library Club and Incorporated Law Society were not given notice merely to appear to assist the Court under the provisions of any Statute as in Adi Pherozshah''s case Supra, but they were made parties in the Rule evidently on the view that their interests might be affected by the result of the Court''s decision and they were allowed to be made parties without objection from the Petitioner who in compliance with the order of the Court served the Rule upon them. On the other question as to bias the Respondent-petitioner, it is conceded by Mr. Bhattacharya, waived his right to raise any objection and surrendered to the jurisdiction of the learned trial Judge to hear and decide the Rule. It, therefore, follows that the Respondent-petitioner must necessarily be deemed to have waived his right to raise any objection on the question of jurisdiction and the competency of the appellate Court to hear and determine the questions involved, for, it is well-established appeal is a continuation of the same proceeding and the appellate Court has the same power and jurisdiction and shall perform as nearly as may be the same duties as are conferred and imposed on the Court of original jurisdiction as provided in Section 107 of the CPC even if the appeal in question is an appeal under Clause 15 of the Letters Patent. Such being the position the inevitable result, in our opinion, is that the Respondent-petitioner is precluded from raising both the questions as to the interests of the Appellants or the jurisdiction of the Appellate Court to decide the appeal. We, therefore, find no substance in the two preliminary points raised on behalf of the Respondent-petitioner.

This brings us to the first question whether Rule 22 of Chapter I of the Original Side Rules is partially invalid and ultra vires. Rule 22 of the Original Side Rules provides:

Persons entitled to appear and plead in the Court in the exercise of its original jurisdiction shall in all respects conform to the practice of and shall be subject to the same obligations and rules of professional etiquette whereby Advocates practising on the Original Side of the Court prior to the 1st of July, 1928, were governed, so that no such person shall be entitled to act on the Original Side of the High Court. Provided that nothing in this chapter shall preclude an Advocate who, prior to the 15th day of November, 1940, has been admitted to appear and plead on the Original Side under the provisions of Rule (iii), (iv) or (vi) nor any Advocate who may be admitted after the 15th day of November 1940, under the provisions of the same Rules as amended, from acting in any jurisdiction other than the original jurisdiction of the High Court and on appeal therefrom.

From the above provision, it seems clear that no Advocate was entitled to act on the Original Side prior to the addition of proviso to Rule 1 of Chapter I and also appeals from the Original Side. Firstly, the learned Judge on interpretation of various sections under the High Courts Act, 1861, took the view that the expression ''original jurisdiction'' was used only in relation to civil jurisdiction, but as there are other jurisdictions as for instance for infants, lunatics, insolvents, admiralty and testamentary, which were treated as original or otherwise, the expression ''original jurisdiction'' under the Bar Councils Act must have meant the original civil and original criminal jurisdiction and not any other jurisdiction which the High Court also exercises under the Letters Patent. Secondly, the learned Judge took the view that Rule 22 should have been properly amended after coming into force of the Bar Councils Act and in the absence of such amendment Rule 22 became invalid insofar as it has gone beyond the limits specified under Sections 9(4) and 14(3) of the Bar Councils Act. Thirdly, on a construction of relevant clauses of the Letters Patent conferring powers upon the High Court to exercise original jurisdiction, the learned trial Judge was of the opinion that the Original Side

is not either in fact or in law identical with the expression ''original jurisdiction'' but is much wider,

and, therefore, the expression ''original side'' instead of the expression ''original jurisdiction'' has become ultra Vires and invalid since the coming into force of the Bar Councils Act. Fourthly, the appeal from the original jurisdiction in Rule 22 barring the Advocates both to act and plead as a matter of right in view of Sections 9(4) and 14(3) of the Bar Councils Act, was wholly unwarranted.

It is contended on behalf of the Appellants that the expression ''original jurisdiction'' could not be confined only to ordinary original jurisdiction relating to civil suits, but necessarily it would relate to matters or proceeding initiated for the first time in the High Court. It will include both ordinary or extra-ordinary jurisdiction as provided in various clauses in the Letters Patent. It is submitted that merely because in the exercise of jurisdiction relating to infants, lunatics or insolvency, admiralty and testimonial jurisdiction, the expression ''original'' is not there in the relevant clauses, it cannot be said that they do not come within the purview of the expression ''original jurisdiction'' for, it is undisputed, that proceedings relating to these matters under various clauses of the Letters Patent are initiated in the High Court for the first time as a Court of first instance. In other words, these proceedings originate in the Original Side of the High Court which exercises its powers and jurisdiction over such proceedings as a Court of first instance. The expression ''original jurisdiction'' will include ordinary and extra-ordinary original jurisdiction as envisaged under several clauses of Letters Patent. Reliance is placed on a decision of the Judicial Committee in Navivahoo v. Turner (1889) 16 I.A. 156 shows that an insolvency proceeding or the proceedings in execution of orders entered up in such proceedings are the proceedings of the High Court and is made in the exercise of civil jurisdiction and of original jurisdiction. It is submitted that the expression ''ordinary jurisdiction'' embraces all such as is exercised in the ordinary course of law and without any necessary step to assume it; and that it is opposed to extra-ordinary jurisdiction which the Court may assume at its discretion upon special occasions and by special orders, and therefore, it is held in this case that there is in reality three-fold division of jurisdiction, namely, ordinary, extra-ordinary and appellate. It is argued that both ordinary and extra-ordinary jurisdictions would come again within the expression ''original jurisdiction''.

It is contended, however, on behalf of the Respondent that original jurisdiction could not travel beyond the Presidency town of Calcutta as envisaged under the Calcutta High Court (Jurisdictional Limits) Act of 1919. It is submitted that jurisdiction may be (i) constitutional, (ii) statutory and (iii) traditional or historical. But so far as original jurisdiction is concerned, there are very many matters which cannot be comprised within the meaning of original jurisdiction, as for instance, when the High Court exercises its power under Representation of People Act or Indian Succession Act, Insolvency Act, Lunacy Act etc. Then, after the commencement of the Constitution, regarding the power exercised under Article 226 of the Constitution, it cannot be said that the High Court exercises original jurisdiction. But even then, Rules have been framed laying down certain procedure to initiate a writ proceeding both in the Original Side and in the Appellate Side mainly on territorial division. But by such Rules the High Court cannot add yet another matter in the list of original jurisdiction. In fine, the reasons given by the learned trial Judge are repealed on behalf of the Respondents to show that the expression ''original jurisdiction'' under the Bar Councils Act must be deemed to have meant only the original civil and original criminal jurisdiction.

On the third point, namely, as to the interpretation of the term ''original side'' and ''original jurisdiction'' as made by the learned Judge, it is contended that original side, as used in the relevant Rules, is equivalent to the expression ''original jurisdiction''. It is pointed out on behalf of the Appellant that in Aswini Ghose''s case Supra the term ''original side'' has been used in place of ''original jurisdiction''. For, it is said that the word ''practice'' both in the Bar Councils Act and in the new Act meant acting and pleading.

But while in the case of the Advocates of Calcutta and Bombay High Courts it has expressly preserved and continued the power of those Courts to restrict or exclude the right to practise on the ''Original Side'' it has reserved no such over-riding power under the new Act with the result that any restrictive Rule cutting down the statutory right would be repugnant to Section 2 and, therefore, void and inoperative.

It is, therefore, argued that even though Original Side is mentioned in the relevant Rule that was meant invariably to be the equivalent expression of the original jurisdiction and could not merely, on that account, be held invalid or ultra vires the relevant provision of the Bar Councils Act. It is, however, contended on behalf of the Respondent that the terms ''original side'' and ''original jurisdiction'' are two different concepts and they cannot be treated as inter-changeable words or synonymous expressions. As the expression ''original jurisdiction'' was used by the Legislature in the Bar Councils Act, the High Court could not have meant the same thing by substituting the words ''original side''. It is therefore clear, it is submitted, that Rule 22, insofar as it expresses Original Side, was ultra vires the Bar Councils Act.

On the next question, whether Rule 22 could extend to appeals from the original jurisdiction, it is contended on behalf of the Appellants that appeal from the original jurisdiction under Clause 15 of the Letters Patent is not really an appeal in the Court of Appeal as provided in Clause 16 of the Letters Patent. It is not an appeal from a subordinate Court but from the decision of a Judge of the same Court which cannot be called an inferior Court. Reference is made to append. L, Forms Nos. 1 and 2 of the Original Side Rules (Ormand''s 4th ed., pp. 725-26). Reliance is placed on a decision of this Court in Dwarkaram v. K.C. Dey and Co. (1936) 40 C.W.N. 515 and it is submitted quoting an observation of Costelo J. in the same case that such appeal is in the nature of re-hearing of the matters. The High Court is not in such appeal exercising its jurisdiction as a Court of Appeal established by Clause 16 of the Letters Patent.

It is next contended that the appeals from the original jurisdiction form a class by themselves and the practice treating them as a separate class is continuing for more than 100 years. It is said that the Supreme Court also in Aswini Ghose''s case Supra accepted this interpretation. Although, therefore, it is argued, they are not appeals in the strict sense of the terms but a review and reconsideration of the matter by the same Court and, therefore, they cannot be treated as appeals in the sense it is understood under Clause 16 of the Letters Patent.

On behalf of the Respondent, these contentions are sought to be met, firstly, on an argument that there is only one appellate jurisdiction of the High Court--whether such appeals come from the subordinate Court or from the original jurisdiction of this Court and in support of this contention reference is made to Section 9 of the High Courts Act, 1861. Reliance is also placed on a decision of United States in Marbury v. Madison (1901) 2 Law Ed. 135 and also on a certain passage of Hamlin Lectures on Common Law in India (2nd ed., p. 31) by M.C. Setalvad and a number of decisions including one of Supreme Court, viz., Ladli Prasad Jaiswal Vs. Karnal Distillery Co. Ltd. and Others, , Toolsey Persaud Bhuckt v. Benay Misser (1896) 23 I.A. 102, Sachindra Mohan De v. N.M. Chakravarti, Official Receiver (1970) 75 C.W.N. 359, Ramji Singh v. Mt. Chhulchhana Kuer ILR (1958) Pat. 674, AIR 1940 39 (Nagpur) , L. Ram Sarup Vs. Mt. Kaniz Ummehani, , Chairman, Budge Budge Municipality Vs. Mongru Mia and Others, and Regina v. Malutosh 7 W.R. 52. It is argued that the decision of a Single Judge of High Court is a Court of first instance and the appellate Court is a Court immediately above the Court of the first instance and clearly, therefore, the High Court exercises its jurisdiction as a Court of Appeal against the decision of a single Judge from the Original Side and not as the same Court reviewing or reconsidering its own decision.

These rival contentions of the parties, however, we think would, if at all assume importance only if proviso now added to Rule 1 of Chapter I of the Original Side Rules is held to be invalid. At this stage, therefore, we would examine Rule 1 with the proviso and, thereafter, advert to the above points concerning the validity of Rule 22, if necessary. Now, Rule 1 of Chapter I with the opening part of the proviso which is material for our purpose runs thus:

Any person qualified as hereinafter stated may appear and plead in the High Court in the exercise of its original jurisdiction and if such application is granted shall be entitled so to appear and plead and be subject to the rules contained in this chapter.

Provided that any person qualified to appear and plead on the Original Side under the above rule may also apply to act in the High Court in the exercise of its original jurisdiction, and if such application is granted, shall also be entitled to act subject to the following Sub-rules....

The learned trial Judge condemned the above proviso as the term ''original side'' was used instead of the term ''original jurisdiction'' on the same or similar reason in declaring Rule 22 of Chapter I as invalid. But, nevertheless, he held that the High Court was competent to frame such rules and even imposing conditions under which the Advocates would be entitled to act or to plead in the original jurisdiction and, since the power under the Bar Councils Act is still available to the High Court, the impugned amendment may be sustained as valid. The learned Judge did not, however, accept the contention of Mr. Deb that such power u/s 34(1) of the Advocates Act has over-riding effect upon Sections 9(4) and 14(3) of the Bar Councils Act. The contention that the proviso was ultra vires Article 14(1) of the Constitution was rejected on several reasons but without prejudice to the right of the Respondent to make a fresh challenge on proper averments and with proper parties. It is, therefore, clear from the opinion of the learned Judge himself that the proviso to Rule 1 of Chapter I of the Original Side Rules is quite valid excepting that it could not be applied to any other jurisdiction besides the original jurisdiction by which, as already noticed, he meant only the jurisdiction relating to institution of civil suits in the original jurisdiction of this Court and also the original criminal jurisdiction. It is difficult to see how after the door for admission of the Advocates to act in the High Court in exercise of its original jurisdiction was thrown open by framing a rule in the form of proviso to Rule 1 of Chapter I, it is still necessary to define or interpret the expression ''original jurisdiction''. By the proviso every Advocate, Attorney and Barrister are entitled to act in this High Court in its original jurisdiction and the bar so long existing has been lifted. Now, therefore, the Advocates may not have any real grievance again to agitate that they have been denied fair treatment in matters relating to their right to act in the Original side of the High Court. There is neither any reservation nor any reservation nor any limitation in extending this right to the Advocates practising in this Court to act in any matter which is initiated either as a suit or as a proceeding for the first time in the of original jurisdiction of this Court. That being the position, the question whether by the expression ''original jurisdiction'' only the ordinary original jurisdiction relating to suits or original criminal jurisdiction is meant or whether they extend to all other proceedings, provided in several other clauses of the Letters Patent has become immaterial. It has become unnecessary and useless to go into or decide that question now when all classes of lawyers in the High Court have been placed on the same footing insofar as their right to act in this Court in its Original Side or in the exercise of its original jurisdiction is concerned. In fact, this was not one of the grounds for attacking the validity of Rule 22 or the proviso to Rule 1 of Chapter I of the Original Side Rules taken by the Petitioner. of course, we say this subject to the other constitutional objection raised on behalf of the Respondent against the proviso, namely, that they are ultra vires both Articles 14 and 19(1)(g) of the Constitution in the cross-objection to which we shall come at the proper time.

But, even if we go into the question as to the exact meaning of the expression ''original jurisdiction'', we are unable to agree with the view taken by the learned trial Judge. In the first place, the learned Judge has disapproved the relevant rules on the ground that instead of ''original jurisdiction'', ''original side'' has been mentioned. In our view, the terms ''original jurisdiction'' and ''original side'' are inter-changeable and ''original side'' is equivalent to the expression ''original jurisdiction'' used in these rules. From the short history which we have recited above, it should appear that the Supreme Courts established in India by the Charter were vested with five distinct jurisdictions--civil, criminal, equity, ecclesiastical and admiralty. This ''jurisdiction'' as stated by Morley in Administration of Justice in British India (p. 18, note 2) are technically termed ''side'' of the Court: as the ''Crown Side'', the ''Common Law Side'' etc. So, the term ''side'' has its origin in English Courts by which the jurisdiction of Courts is understood and the same practice of using the expression ''jurisdiction'' technically in terms of ''side'' was followed in India since the establishment of the Supreme Courts in Calcutta, Bombay and Madras. It is, therefore, not right to say that the term ''side'' would mean something different from ''jurisdiction''.

Mr. Bhawani Shankar Chowdhury, learned Advocate, who followed Mr. Bhattacharya on behalf of the Respondent, also has advanced certain arguments repeating in substance some of his own comments given in his book entitled Studies in Judicial History of British India on this aspect of the matter. It is said that having regard to the history of establishment of the Supreme Court in this country, there could be little doubt that the Original Side of High Court was a racial Court--a Court for the benefit of British subjects over the heads of the natives providing for suits without Court Fees, trials by High Court Judges of matters triable by Munsifs and Subordinate Judges with an English procedure and a bifurcated legal profession. In supporting the reasons given by the learned trial Judge he has submitted that there could be no such thing as original side, or original jurisdiction and original side are the same thing. It is not only unknown to law, it is submitted, but having regard to its substance and historical identity it is ultra vires the provisions of Articles 14 and 15(1) of the Constitution. According to Mr. Chowdhury, Article 225 of the Constitution did not save this arbitrary classification. Mr. Chowdhury has also disputed in this connection the correctness of the decision made by K.J. Sen Gupta J. in Chunilal Basu v. The Hon''ble Chief Justice of the Calcutta High Court Chunilal Basu and Another Vs. The Hon''ble Chief Justice of the High Court at Calcutta and Others, where it has been observed by the learned Judge that the Letters Patent of 1865 are still in force within the meaning of Articles 372 and 225 of the Constitution and the Calcutta High Court (Jurisdiction and Limits) Act, 1919, are not ultra vires Article 14. As regards the constitutionality of the Letters Patent or for the matter of that the existence of original side or original jurisdiction of this Court, they were neither challenged nor even raised or decided by the learned trial Judge. So, at this stage, we are not prepared to enter into these questions. We have not been shown, however, by any of the Advocates who appeared before us in support of the judgment any authority nor there is one even referred to in the judgment to show that the term ''side'' is something different from jurisdiction and, if so, what exactly the expression ''side'' would mean.

The next reason given by the learned Judge on this aspect of the matter is that although u/s 9 of the Indian High Courts Act each High Court was empowered to exercise

all such civil, criminal, admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction--original and appellate in the relevant Letters Patent only in clauses 11 to 13, the expression ''original jurisdiction'' was used but not so in other cases relating to exercise of jurisdiction over infants, lunatics and insolvents also matrimonial, admiralty and like matters.

Elaborate discussions have been made citing instances of the incompatibility of two expressions as it is said that in exercising admiralty, matrimonial, testamentary suits classification of the writ proceedings under Article 226 marked as Original Side and Appellate Side, the writ proceedings u/s 45 of the old Specific Relief Act, 1887, are matters included under the Rules in the Original Side, although some of these matters which are provided in the relevant clauses of the Letters Patent are not mentioned as matters of original jurisdiction and rest of the other matters which could not be, strictly speaking, treated as matters of original jurisdiction came to be included as matters in the Original Side and, therefore, the expressions ''original jurisdiction'' and ''original side'' were not identical expressions, but the expression ''original side'' is much wider. We are, again, unable to agree with the reasons given or conclusion reached by the learned trial Judge. If the term ''side'' is technically understood as ''jurisdiction'', then clearly the original side would mean original jurisdiction. All matters enumerated by the learned Judge, either within the relevant clauses of the Letters Patent or outside, originate in the High Court as a Court of first instance. We see no reason why those matters cannot be included as matters of original jurisdiction. The point in substance has been clarified by the Judicial Committee as long back as 1888-89 in Navivahoo''s case Supra relied on behalf of the Appellants and it has been held that, apart from civil suits or original criminal proceedings in many other matters or proceedings, the powers exercised by the High Court are both of civil and original jurisdiction. The same view is adopted by the Supreme Court in Jyoti Bhushan Gupta v. Banaras Bank Ltd. AIR 1962 S.C. 402 where, amongst other things, it has been held that there is no difference between characters of the original civil jurisdiction conferred upon the High Court by the Letters Patent and the jurisdiction conferred by special Acts, for in the latter case also the High Court exercises its power as a Court of first instance and the jurisdiction thus exercised is original and civil, and if the exercise of that jurisdiction does not depend upon any Preliminary step invoking exercise of discretion of High Court, such jurisdiction is ordinary. It has also been pointed out, we think rightly, on behalf of the Appellants, as noticed earlier, that in Aswini Ghose''s case Supra the term ''original side'' has been used by the Supreme Court in place of ''original jurisdiction'' wherein it was, inter alia, observed that the word ''practice'' both under the Bar Councils Act and in the new Act meant both ''acting and pleading'', but while in the case of Calcutta and Bombay High Courts it has expressly preserved and continued the powers of those Courts to restrict or exclude the right to practise on the ''original side'', it has reserved no such overriding power under the new Act with the result that any restrictive rule cutting down the statutory right would be repugnant to Section 2 and, therefore, void and inoperative. We are not unmindful, while we say this, that territorial limits have been defined for exercise of original jurisdiction by the High Court, but that fact by itself cannot exclude other matters from the purview of the original jurisdiction for the exercise of original jurisdiction will not only depend upon the place of residence or trading of the opponents but on many other factors under the law. It is unnecessary to deal exhaustively with this aspect of the matter, but if any instance is needed, we can only refer to those proceedings which may be instituted in the Court of original jurisdiction within whose territorial limits cause of action or part of cause of action would arise. In any case, it is neither feasible nor desirable to embark upon an enquiry into more than a century old rule and practice, even if we do not take into account of the period of practice followed in the Supreme Court, to find out the exact connotation of the terms ''original side'' and ''original jurisdiction'', for that would lead to more confusion and uncertainties without achieving the desired result. In fact, the learned Judge himself could not determine exclusively what matters would properly come within the fold of expression ''original jurisdiction'' although at the same time he thought it unnecessary to do so. In our opinion, it is not only not necessary but also not possible to determine and categorize the exact matters which would come within the purview of the terms ''original jurisdiction'' and ''original side'' respectively even if they are accepted as indicating different matters. At such a distance of time both the terms have lost their separate identities, if there were any, and merged into one and the same thing. In our opinion, therefore, the expressions ''original jurisdiction'' and ''original side'' are equivalent expressions and the impugned rules cannot be held to be invalid just because instead of ''original jurisdiction'' the term ''original side'' has been mentioned.

Equally, for the same reason already indicated question whether the Advocates are entitled to act in an appeal from the original jurisdiction as of right without being bound by the previous rules framed in this behalf in the Original Side Rules has become immaterial. Now, by the proviso as the Advocates have been allowed to act in the original jurisdiction on the Original Side, they would undoubtedly be allowed as a matter of course to act in the appeal particularly arising from such suit or proceeding from the original jurisdiction for appeal is nothing but continuation of suit or proceeding. It is true, much has been said about the absence of power and the jurisdiction of High Court to impose conditions or fetter the Advocates in their right to practise ''as of right'' in the Appellate Side of the High Court. But it is again unnecessary to decide those questions in the context of the present situation that has arisen by insertion of the proviso to Rule 1 of Chapter I of the Original Side Rules.

The Advocates are now free to practise in the Original Side both to act and plead and practically in the same manner as in the Appellate Side subject, of course, to other procedural rules and practices of the Original Side. It is, however, held by the learned trial Judge that there is apparent conflict between the provisos to Rule 1 and Rule 22 of Chapter I of the Original Side Rules. But, we think that this proviso which came much later to be included in the Original Side Rules must have overriding effect on Rule 22 of Chapter I of the Original Side Rules. Clearly, Rule 22 would cease to have any effect insofar as it would be inconsistent with proviso to Rule 1 of Chapter I of the Original Side Rules. It is one of the well-established principles of construction of statutes that if there is apparent conflict between the earlier provisions and the latter provisions of the same statute and if they are inconcilable, the latter provisions will prevail: See K.M. Nanavati Vs. The State of Bombay, , The Chief Inspector of Mines and Another Vs. Lala Karam Chand Thapar etc., and Smt. Laxmi Devi Vs. Sethani Mukand Kanwar and Others, . So, applying that rule to the facts of the present case, it seems clear that proviso to Rule 1 of the Original Side Rules will prevail certainly over Rule 22. It is, however, for the High Court in its administrative capacity to alter or repeal or omit the rule in question or the rule apparently in conflict with the latter rule, but the Registrar is neither competent nor any question could arise for a direction upon the Registrar to place the rule before the High Court in Full Court. Instances are not rare but on the contrary many where there are apparent conflicts between the earlier and latter enactments or some of the provisions of the same Act. But that continues to so remain on the Statute Book without being amended or altered by the Legislature and that fact, by itself cannot render the whole Statute or such provisions as are in conflict to be totally ineffective unless, of course, the conflict or anomaly is such that the Statute as a whole or such provisions as a result of such inconsistency become totally unworkable. As observed by Venkatarama Ayer J. in N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, --

it is no doubt true that if on its true construction a statute leads to anomalous results the Courts have no option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute two views are possible, one which results in anomaly and the other not, it is our duty to adopt the latter and not the former seeking consolation in the thoughts that law bristles with anomalies.

In the instant case, therefore, even though there is inconsistency between the two provisions, it is possible to avoid the anomalies and relying on the rule of harmonious construction there is no doubt that proviso as a subsequent provision in the rule would become effective and operative and Rule 22 would cease to have effect by necessary implication so far as it is inconsistent with the proviso.

Now, on the question of Advocates'' right both to act and plead in appeals as of right both parties may have enough to say in support of their rival contentions on the question of the practice followed in the High Courts regarding appeal from original jurisdiction. Having, however, regard to the separate provisions of Clauses 15 and 16 of the Letters Patent, it is not easy to resolve the difficulties, for under Clause 16 of the Letters Patent it is provided amongst other things that there shall be a Court of Appeal from all inferior and subordinate Courts, but in Clause 15 it is only said that the High Court itself will sit as an appellate authority in certain circumstances over the judgment of a single Judge or of a Judge of a Division Bench. So, possibility of segregating these appeals into two distinct classes, as provided in Clauses 15 and 16 of the Letters Patent, cannot be ruled out altogether. On the other hand, it may be also that when the High Court decides an appeal whether from the Original Side or from the inferior Court it does so as an appellate Court and, therefore, it exercises its power in appellate jurisdiction. So, the contention of the Respondent that the Advocates under the relevant provisions of the Bar Councils Act are entitled to practise as of right before the High Court exercising its appellate jurisdiction may equally be acceptable, but in our view, for the reason already given, namely, by adding proviso to Rule 1 of Chapter I of the Original Side Rules, the bar to practise that is both to act and plead in the Original Side and, consequently in appeals therefrom having been lifted, it is no longer necessary to decide this question in the present case.

Even so, it is contended on behalf of the Respondent that the Advocates are entitled to practise as of right, so far as appeals from the Original Side are concerned, without being fettered by terms and conditions of any rules regulating such right. We do not think, even under the Bar Councils Act, the High Court is totally powerless to regulate such right of the Advocates to practise in the Appellate Side. This right, we think, is always subject to the rules framed by the High Court under the power given to it by that Act and the other relevant law'': See Harischandra Jha and Others Vs. Dinesh Narain Jha and Others, . Therefore, if there are some conditions imposed upon the Advocates to regulate their practice even in the appeal from original jurisdiction, that rule will not be in conflict with the right of the Advocates to be entitled as of right to practise as provided u/s 14 of the Bar Councils Act.

Further, the learned Judge himself, in dealing with this aspect of the matter on the contention raised on behalf of the Appellants, looked into Clause 13 of the Letters Patent as the authority of the rule-making power of the High Court relating, inter alia, to the appeal from original jurisdiction and found that the language, no doubt of Clause 37, was wide enough to include both original and Appellate jurisdictions; nevertheless, by reference to Clause 9 of the Letters Patent he has observed that Clause 37 had nothing to do with the right of the Advocates to act and plead in the appeals which, however, according to the learned Judge was covered by Clause 9 of the Letters Patent. It is difficult to see how when a separate set of rules is permitted to be framed under the Letters Patent regulating the procedure of such appeals from the original jurisdiction, the High Court would be powerless to make suitable rules regulating the practice of the Advocates, so far as these appeals are concerned consistent with these rules. In any case, since the other procedural rules of suits and proceedings or appeals therefrom framed under the Original Side Rules by the High Court have not been challenged in this case, we think it is all the more reasonable to hold that the High Court possesses necessary powers to frame certain other rules embodying appropriate terms and conditions for the lawyers entitled to practise so that these procedural rules, for the prosecution of the appeals from original jurisdiction, may be effectively carried out. If, therefore, certain terms and conditions have been laid down in the proviso to Rule 1 of Chapter I of the Original Side Rules, it seems clear, they are in furtherance and not in derogation of the right of the Advocates to practise far less in total extinction of their right to carry out their profession as of right in the Original Side of this Court or appeals therefrom. It cannot be gainsaid that after all profession of lawyer grows in course of time out of necessity to assist the Court in effectively dealing with and determining law suits and proceedings so that justice may be done to the litigants and this is not possible unless some sort of uniform rules are framed for guidance of the lawyers regulating their right of practice before the law Courts.

This power of the High Court, as appears, has also been conferred upon it to frame rules in general terms

to make rules u/s 34(1) of the Advocates Act laying down the conditions subject to which an Advocate shall be permitted to practise in the High Court and the Courts subordinate thereto

without any reservation. Clearly, therefore, the power extends to make such rules in both the jurisdictions of the High Court and the Courts subordinate thereto. This rule-making power has been found by the learned Judge, we think rightly, as valid. But this rule has not been applied by him substantially for three reasons, firstly, by such rule it was held that the Advocates Act could not place any restriction upon the right of the Advocates to carry on their profession as of right as envisaged in Section 30 of the same Act similar to that of Section 14 of the Bar Councils Act which would be a retrograde measure not permissible under these Acts. Secondly, as the Advocates Act is to come into operation chapterwise and not sectionwise, it could not be said that Section 34 of the Advocates Act, though notified admittedly to have already come into operation, could not still be given effect to as Section 30 of the same Act has not come into operation as yet and, therefore, the Bar Councils Act still would hold the field. Thirdly, even if Section 34 has been brought into force the position would not be different for u/s 34(3) the High Court is not yet in a position to make rules in exercise of the power conferred by Section 34(1) and (2). The point involved covers the third and fourth grounds of the Appellants, namely, that the impugned Original Side Rules contained in the proviso to Rule 1 Chapter I are quite valid and binding insofar as it extends to all matters in which the High Court exercises its original jurisdiction and further u/s 34 of the Advocates Act, which is now in force, the High Court is empowered to make rules both in the Appellate and Original Sides of the High Court to regulate the practice of the Advocates enrolled under the Bar Councils Act. We think, having regard to the scheme of the Advocates Act, there is a clear distinction between the right of admission and enrolment of Advocates contained in Chapter III and their right to practise under Chapter IV. So far as right to practise is concerned, although u/s 30 of Chapter IV every Advocate, whose name is entered in the common-roll, shall be entitled as of right to practise throughout the territorries to which this Act extends such right is subject to the other provisions of the Act. In other words, the provision of Section 30 would yield place to other provisions to which it is made the subject: See The South India Corporation (P) Ltd. Vs. The Secretary, Board of Revenue Trivandrum and Another, . The position, therefore, is that this right of the Advocates who are entered in the common-roll as of right to practise in the High Court is subject to the rules that might be framed laying down the conditions, subject to which an Advocate shall be entitled to practise, u/s 34(1) of the Act. Although Section 30 of the Advocates Act has not come into operation, the Advocates, whose names are borne on the said roll of the Bar Council, shall be deemed to be Advocates under the Advocates Act because of the transitional provision of Section 50(3) of the same Act. Such being the position, Section 34(1), which has come into operation, would at once be attracted even though Section 30 has not been put into effect. We cannot agree that merely because in Section 50(3) of the Act there are the provisions of repeal of certain sections mentioned in Clauses (a), (b), (c), (d) and (e) thereto of different Acts including the Bar Councils Act on the date on which Chapter IV comes into force, that cannot withhold the operation of different provisions of the Act if they are put into effect by notification. For under Sub-section (3) of Section 1 of Chapter I of the Act, it is provided that the Act

shall come into force on such date as the Central Government may by a notification in the Official Gazette appoint and different dates may be appointed for different provisions of this Act.

We do not see any anomalies or inconsistencies between these two provisions.

It is rather the case of the Respondent that Section 34 has come into operation even though Section 30 has not. But, it is said that the enrolment of Advocates and the power to enforce conditions are now in the hands of the Bar Council of India and, although Section 30 has not come into operation, Section 24 which comes within Chapter III deals with the qualification of an Advocate, for his admission on a State-roll on fulfilment of certain conditions. Section 29 is the first section under Chapter IV which recognises the Advocates as the only class of persons entitled to practise law, and Section 33 is the negative counterpart of Section 29 which disentitles all persons

on or after the appointed day to practise in any Court or before any authority or persons unless he is enrolled as an Advocate under the Act.

It is difficult to see how by these three provisions the Advocates can be said to have acquired unfettered right to practise as of right throughout the territories which is only conferred u/s 30 of Chapter IV of the Advocates Act. Even assuming that the Bar Council is the sole authority for empanelling the Advocates in State-roll or common-roll, there is nothing to indicate in the Advocates Act that that authority would extend to lay down terms and conditions even in regulating the right of the Advocates to practise in a Court of law which, as we have already observed, is a matter left to High Courts to regulate by appropriate rules u/s 34 of the Advocates Act. It is said that since there is no longer any existence of the domestic Advocates, as they are called, in relation to the Supreme Court Advocates under the Bar Councils Act after the Advocates Act came to occupy the field, the High Court has no power to restrict those Advocates enrolled under the Advocates Act their right to practise, i.e., both to act and plead in the High Court, for it is said that these Advocates are not restricted to any one High Court. They are entitled to practise in all Courts. We think the right of the Advocates to practise in all Courts the Supreme Court in India as of right has not yet accrued by virtue of Section 30 of the Advocates Act. But, even if there is such a right, we think, by virtue of Section 14 of the Bar Councils Act that right is always subject to the rule-making power of the High Court laying down conditions subject to which an Advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. It is said that under Sub-section (2) of Section 34 rule-making power is confined to the Attorneys of the High Court at Calcutta and Bombay and not the Advocates as provided under Clause (iii) of Sub-section (2) of Section 34 of the Advocates Act in the exercise of its original jurisdiction. It is unnecessary to go into these questions, for it is well-established that the specific provisions contained in several clauses under Sub-section (2) of Section 34 are merely illustrative of the general rule-making power conferred upon the High Court under Sub-section (1) of Section 34 of the Act. It is, therefore, not possible to accept the Respondent''s contention that the High Court has no power to lay down conditions for regulating the right to practise of the Advocates as of right under the Advocates Act.

Then, again, Section 34(3) of the Advocates Act appears to have saved all rules made by the High Court under its Letters Patent or any other law relating to any other matters specified u/s 34 of the Advocates Act which were in force immediately before the appointed day. The learned Judge, however, took the view that since the rules framed by the High Court in exercise of its original jurisdiction could not extend to any other jurisdiction except ordinary original jurisdiction relating to civil suits all rules could if at all be saved to that extent and no more. For the reasons, however, already given it is unnecessary again to go into and determine this question for now under the proviso to Rule 1 of Chapter I of the Original Side Rules, the High Court has conferred the right upon the Advocates to practise, i.e., both to act and plead in the exercise of its original jurisdiction. Equally for the same reasons, which we have assigned earlier, we also do not agree that because of the expression ''original side'' used in the proviso to Rule 1 it has suffered, from any infirmities. It is true that the proviso to Rule 1 both ''original side'' and ''original jurisdiction'' have been used, but they are the equivalent expressions of the same subject which clearly means with reference to Rule 1 that any person qualified to appear and plead on the Original Side may also apply to act in the High Court in the exercise of its original jurisdiction and, if such application is granted, shall also be entitled to act subject to certain Sub-rules etc. In other words, the Advocates who are qualified to plead in the original jurisdiction of the High Court are entitled to act also in such jurisdiction subject to certain conditions specified in Sub-rules of the proviso. Therefore, we are unable to agree with the learned Judge that just because the expression ''original side'' has been used instead of ''original jurisdiction'' in the first part of the proviso it becomes patently wrong or the entire proviso became totally ineffective or invalid.

The learned Judge, however, has pointed out that because of the operation of Section 14 read with Section 9(4) of the Bar Councils Act, Section 34(1) of the Advocates Act cannot be construed so as to override those provisions of the Bar Councils Act unless they stand repealed in the manner indicated in Section 50(3) of the Advocates Act. We fail to see how this is so. Both under Sections 9(4) and 14(3) of the Bar Councils Act the High Court''s power either to prescribe qualification or to determine the persons who shall be entitled respectively to plead and to act in the High Court remained unaffected. There is nothing u/s 34(1) to indicate that the powers of the High Court under Sub-section (3) of Section 14 or Sub-section (4) of Section 9 have been abridged or taken away by the powers conferred upon the High Court. On the contrary, it may be said that over and above the power given to the High Court under those provisions of the Bar Councils Act, there has been enlargement of the powers of the High Court in a sense expressly to make rules subject to which an Advocate shall be permitted to practise in the High Court even in its Appellate jurisdiction. There is no anomaly or inconsistency between these provisions of two different enactments and until Chapter IV comes into operation by putting Section 30 into effect, the power conferred u/s 34 must be deemed to be an additional power of the High Court to regulate the practice of the Advocates in the High Court, even though Sections 9(4) and 14(3) remain operative. We therefore, do not think that the proviso to Rule 1 of Chapter I is in any way ineffective or invalid or it is only applicable to the original jurisdiction as interpreted by the learned Judge and not to other matters or proceedings initiated in the original jurisdiction of the High Court.

Now, reverting back to the question of validity of Rule 22 we think, therefore, it is unnecessary to examine the correctness of the rival contentions of the parties as regards the validity of Rule 22 of the Original Side Rules. Even in view of what we have discussed already and the conclusion we have come to on the question of validity of the proviso to Rule 1 of Chapter I, the only question, if at all, that could at best remain to be decided is whether the Advocates could at all be prevented from acting in appeals from the original jurisdiction of the High Court. We have already observed that it is not easy to resolve this delicate and difficult question which now arises on a settled practice followed under the Rules of the Original Side for more than a century in the High Court. So, we leave this question open as we feel that it is no longer necessary to decide the point in view of the proviso to Rule 1 of Chapter I of the Original Side Rules which is valid and effective. These rules have lifted the bar against the Advocates'' right to act in the Original Side.

This brings us to the cross-objection of the Respondent in which grounds taken substantially are two-fold--firstly, the impugned rules are attacked on the ground that they put an unreasonable restriction upon the Respondent''s Fundamental right to carry on his profession as an Advocate as of right and, as such, they are ultra vires Article 19(1)(g) of the Constitution; secondly, they are discriminatory and deny equal protection of law and therefore violative of Article 14 of the Constitution.

On the first question as to unreasonable restriction of the Respondent''s fundamental right, the learned Judge took the view, firstly, that the right to carry on profession was a statutory right and not a common law right and, therefore, no question of infringement of fundamental right could arise; secondly, even assuming that this right was a fundamental right, it was open to the appropriate Legislature to make such restrictive laws regulating such right by virtue of Clause (6) of Article 19 introduced by the first amendment Act, 1951, of the Constitution and, therefore, the High Court''s power to make appropriate rules both for pleading and acting could not be questioned by virtue of any Act of the competent Legislature on constitutional ground. Mr. Bhattacharya in repeating the same argument has contended before us, in the first place, that legal profession is not only a common law profession but an ancient profession being a necessary element in all civilised communities. According to him, it was so with the Romans, Jews, Hindus and every country and nation. Mr. Bhattacharya has referred to Oxford New English Dictionary (vol. VII, p. 1427) to explain as to what exactly is meant by profession which according to the dictionary meaning means legal profession. Reliance is also placed on a passage of Holdsworth''s History of Legal Profession (4th ed., p. 485) to show that the profession grew out of common law, and many more pages of Historical Introduction to Roman Law by Jolowitch were referred to at great length to contend that in its historical perspective lawyers'' profession was at the beginning a common law profession and, therefore, a fundamental right and not merely a statutory right. On this aspect of the matter Mr. Bhattacharya with great pains took us through several comments of high authorities like the Ancient Law of Henry Maine (Chapter 2, pp. 41-42, 44-45); Setalvad''s Common Law of India (Hamlin''s Lectures, pp. 8-9). Mr. Bhattacharya, it must be said, has studied this matter in a spirit of research for he has strenuously pressed his arguments on this point even by referring to certain passages from Bible (St. Luke Bible, Chapter II, verses 46 and 52) and also from Shakespearean Dramas like Merchant of Venice (Act IV, Scene 1), Henry the VIth (Act IV, Scene 2). He also has relied on certain passage from Jaiswal''s Tagore Law Lecture (1917) on Manu and Jagnavalkya (Chapter VI, p. 110, and last chapter, p. 289) to impress upon us that profession is a common law profession and not a profession created by statute.

Mr. Bhattacharya was followed by Mr. Roy on behalf of the Respondent and his precise argument was that the learned Judge misread the decisions in Sakhawat Ali Vs. The State of Orissa, and Babul Chandra Mitra Vs. The Chief Justice and Others Judges of Patna High Court, and wrongly held that the right to practise profession of law was not a fundamental right. It is said, on the contrary, following the principles indicated in these decisions of the Supreme Court, that all relevant Acts, Rules, Regulations and, in particular, the Letters Patent or the Indian Bar Councils Act, 1926, the Advocates Act, 1961, or the Rules of the High Court, Original Side, have to be tested on the touchstone of Sub-clause (6) of Article 19 of the Constitution. It is said that onus, that these Rules on the Original Side have stood the test of reasonable restriction in the interest of general public, is on the Appellants and, that being so, such onus clearly in this case has remained undischarged. Mr. Roy has also attacked the validity of the proviso to Rule 1 of Chapter I on the ground that the conditions imposed under the rule for enabling the Advocates to practise are again not reasonable restrictions having regard to the modern facilities of the mechanised transport, communications, the number of practising lawyers, the scarcity of accommodation in the adjacent premises to High Court and many other matters.

Mr. Kar, on behalf of the Appellant, Secretary, Incorporated Law Society, in repelling these contentions has argued that even under the Bar Councils Act or the Advocates Act there is the right conferred upon the High Court to regulate the rights of the Advocates to practise, i.e. both to act and plead for a party in a Court of law, and if these acts are not challenged as constitutionally invalid, no question of infringement of the Petitioner''s right to carry on his profession of law could arise. In aid of such contention, reliance is placed on a decision of the Federal Court in Sir Iqbal Ahmad v. The Allahabad Bench of the High Court of Judicature at Allahabad AIR 1950 F.C. 72 and also on a decision of the Supreme Court in Devata Prasad Singh Chaudhuri and Others Vs. The Hon''ble The Chief Justice and Judges of the Patna High Court, . The learned Judge has gone in some details over this question and held, firstly, that even if the profession of law is not a statutory creation, Parliament of this country has enough power to make any law enforcing, in the interest of general public, reasonable restriction on the exercise of the right conferred under Clause (g) of Article 19(1) of the Constitution. Secondly, it could not be asserted that a person has an absolute constitutional right to practise before any jurisdiction of the High Court immune from any such rules. We think, however, that the points cannot be decided at all in this case, firstly, because the Respondent did not in his substantive application take any ground challenging the validity of any of the statutes or rules affecting their fundamental right to practise in the original jurisdiction of the High Court, excepting that in a supplementary affidavit he has submitted that in Clause (1) of the Sub-rule under the proviso to Rule 1 of Chapter I is an unreasonable restriction on his right to practice his profession as an Advocate particularly to act and plead for suitors on the original jurisdiction of the High Court substantially on the ground (i) that it was nearly impossible to get accommodation or rooms for office purposes, (ii) even if it is found, the same would be so much expensive that it would be beyond the means of most of the other Advocates, and (iii) further, most of the buildings around the Court building are occupied by Attorneys.

This being the nature of pleading it is neither feasible nor desirable to enter into this question to see whether the impugned rules suffered from any of the constitutional infirmities as alleged by the Petitioner. We think, the decision on question as to whether law has imposed reasonable restrictions on the Petitioner''s fundamental right as envisaged in Article 19(6) of the Constitution will depend upon proper averments of facts. In this case, so far as Rule 22 is concerned, there is no material given in the substantive writ petition on which the Court can be persuaded to reach its conclusion on this complex question of law. Regarding the validity of sub-clause laying down conditions under the proviso to Rule 1 of Chapter I, it is equally not possible to enter into this question on such meagre materials mentioned in the affidavit. In our view, mere allegations of insufficiency or non-availability of proper accommodation for office purposes, which have been made a condition for allowing the Advocates to act in the Original Side, are not based again on proper and adequate materials. It is not possible without proper averments or pleadings to decide this question either way and, therefore, it is not open to the Court in such cases to take judicial notice of the insufficiency or non-availability of the accommodation for office purposes within the area defined under the Sub-rules of the proviso or that the rent of the accommodation, if available, would be so high that it would not be possible for the Advocates generally to pay such high rent or that the Advocates would be unable to deposit Rs. 500 with the Registrar, Original Side of the High Court, to enable them to act in the Original Side. There are many more factors to be considered before the question raised can be effectively decided, for it has been ovserved by the Supreme Court that

in applying the test of reasonableness the Court has to consider the question in the background of facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, and the ratio of the harm caused to individual citizens by the proposed remedy to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general public. See Narendra Kumar and Others Vs. The Union of India (UOI) and Others, .

In fact, this part of the matter was not gone into and decided by the learned trial Judge. So, the Respondent cannot be allowed to press this point and have a decision of this Court at this stage.

Secondly, because all or any of the statutory enactments from which the High Court has derived its power to frame rules regarding the rights of Advocates to practise in the original jurisdiction of the High Court has not been challenged as constitutionally invalid on the ground of infringement of Petitioner''s fundamental right to carry on his profession.

Therefore, at the first instance, it must be taken for granted that the rule-making authority did not transgress the limits prescribed by the Legislature. It is not a case where without legislative authority the High Court on its own has imposed any restriction, if at all, upon the alleged fundamental rights of the Petitioner guaranteed by Article 19(1)(g) of the Constitution. In similar circumstances, in Devata Prasad''s case Supra where u/s 11 of the Legal Practitioner''s Act, 1879, the High Court was authorised to make rules for regulating the functions, powers, duties of Mukhtears practising in the subordinate Courts who were given the right to practise u/s 9 of the same Act in the subordinate Courts and the impugned rule regulating such right was challenged as violative of fundamental right to carry on profession, the Supreme Court held that

if the Rule is intra vires the Act, then clearly enough, there has been no violation of any fundamental right of the Petitioners.

It would thus be seen that since in this case there was no challenge to the constitutional validity of Section 11 of the Act as permitting the unreasonable restriction on a guaranteed right, it is observed that only question which requires consideration is whether the impugned rule is in excess of the authority given by Section 11 of the Act. Applying the principle indicated to the present case, it seems clear that since there was no challenge to the constitutional validity of the parent section from which the powers of the High Court have flown, the only question that can be decided is whether in making these rules the High Court has transgressed its authority given under the Act, namely, either the Bar Councils Act or the Advocates Act. No question of infringement of Petitioner''s fundamental right in the facts and circumstances of this case could arise.

Mr. Bhattacharya, however, has argued that even if the power of the High Court is there to regulate the practice of the Advocates, such power could not be exercised by framing Rule 23 or laying down conditions under the proviso to Rule 1 of Chapter I, for, in either cases such rules have the effect of total prohibition of the right of the Advocates to act. It is said that the true meaning of ''regulating'' is ''to control, govern or direct by rules or Regulations'' but cannot mean ''total restriction on such right''. In support of his contention he has relied on several English decisions: Municipal Corporation of the City of Toronto v. Virgo (1896) A.C. 88 and Attorney-General of Ontario v. Attorney-General for the Dominion (1896) A.C. 348 and also on two decisions of the Supreme Court in Himat Lal K. Shah Vs. Commissioner of Police, Ahmedabad and Another, and Mohammad Yasin Vs. The Town Area Committee, Jalalabad and Another, . We think, however, so far as Rule 22 is concerned, for the reasons already given we are not prepared to enter into this question and, as regards the conditions laid down under the proviso, it really raises the same question whether the conditions complained of are unreasonable restrictions on the Petitioner''s fundamental right which, we have already held, cannot be gone into as the substantive section from which the power of High Court emanated has not been challenged as constitutionally invalid. But, even if we go into such questions we are inclined to hold that the conditions laid down under the proviso to Rule 1 cannot have the effect of total prohibition of the Petitioner''s right to practise in the Original Side. It is not the case of the Respondent that by framing the impugned rules the High Court has transgressed the limits circumscribed by the relevant section either under the Bar Councils Act or the Advocates Act. We, therefore, find no substance in the first contention raised on behalf of the Respondent.

We now take up the second question as to whether the impugned rules are violative of Article 14 of the Constitution. The learned trial Judge, as appears, did not directly decide the question at all. It is contended on behalf of the Respondent that the Petitioner has a right under the Advocates Act especially under Sections 24, 29 and 33, now in force, to practise throughout India including the original jurisdiction of this Court. It is said that by the conditions set out under the proviso the Respondent is being prevented from acting in the original jurisdiction resulting in denial of equal protection of law to him, firstly, because such right is dependent on the pleasure of the Court and, secondly, because it is fettered by unreasonable and impossible conditions thereby making his right under the law nugatory; and thirdly, because it is submitted that the conditions under the proviso, though applied to all, have in fact resulted in discrimination for it is said that the need of finding an office becomes a handicap to the new-comers as Attorneys have already such offices in an institutionalised pattern. The Advocates have not been allowed to function from their Association and Library. It is said that if the matter is considered not from the aspect of numerical equality but from proportionate equality as between the Attorneys and the Advocates, it would be seen, having regard to the nature and effect of the conditions laid down that they have culminated in prejudicial discrimination affecting the rights of the Advocates. We however think, firstly, that the Petitioner is not entitled for the same reason as given by the Supreme Court in Devata Prasad''s case Supra, secondly, because the reason which impelled us to reject the Petitioner''s arguments on the question of infringement of fundamental right guaranteed under Article 19(1)(g) of the Constitution equally applies also to the question raised with reference to Article 14 of the Constitution. It is often said that, in order to effectively determine the question as to whether the Petitioner has been denied equal protection of law, there must be proper pleadings and averments in the substantive petition and, unless there are sufficient and adequate materials before the Court, it would not be possible to effectively determine a serious question challenging the validity of any law resulting in denial of equal protection and thus violative of Article 14 of the Constitution.

It is well-established that the burden of showing that a classification is arbitrary and unreasonable lies on the person who attacks the validity of the law as violative of equal protection guaranteed under Article 14 of the Constitution. See Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, . The Petitioner must set out proper facts and instances of such arbitrary classification and more vague allegations are not enough. It also must be proved that the selection of the class by the Legislature has been arbitrary. See, for instance, The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. The State of Delhi and Another, . This apart, as the presumption of the selection of the class or classification made under the law is reasonable, the Petitioner is to rebut such presumption by evidence either intrinsic or extranuous and the grounds of such discrimination must be stated and supported at least by affidavit evidence: See V.M. Syed Mohammad and Company Vs. The State of Andhra, and also Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, . The learned trial Judge himself considered some of these aspects of the matter and rejected the contention of the Respondent although without prejudice to the rights and contentions of the Respondent to make a separate application. In this case, nothing has been said except a bare ground stating that the impugned rules are violative of Article 14 of the Constitution. In our opinion, on this bare statement it would be futile to enter into the question and effectively determine the vires of the rules in the background of Article 14 of the Constitution.

This apart, it is difficult to see how the conditions laid down are discriminatory. The three branches of profession, namely, the Advocates, the Attorney and the Barristers, who are also Advocates, are placed on the same footing and given similar rights and the conditions laid down under the proviso and are equally applicable to each of these three classes of profession. It is equally difficult to see how in fact of the other procedural Rules in the Original Side of the High Court the conditions laid down are unreasonable or deny equal protection of law to the Advocates. We think, so long as the other procedural Rules in the Original Side are in force for institution and prosecution of all suits and other proceedings, the conditions laid down appears to be unavoidable. In the scheme formulated for carrying out the work of the original jurisdiction for more than a century it is essential that office of the Advocates who would be entitled to act should be maintained and other conditions laid down also should be complied with. So, even if we are called upon to decide this aspect of the matter, we should be inclined to hold that the conditions laid down in the proviso are neither unreasonable nor they deny equal protection of law as envisaged under Article 14 of the Constitution. No other point was pressed.

Accordingly, after giving our most anxious consideration to the points of controversies raised in the present appeal, we are unable to uphold the decision of the learned trial Judge as correct. For the reasons already given, we find no substance in the cross-objections.

The result is, all the three appeals are allowed. We set aside the impugned judgment and order of the learned trial Judge. Both the cross-objections preferred by the Respondent-petitioner are dismissed. The rule is discharged but there will be no order as to costs.

As we have allowed the appeals and set aside the judgment and order of the learned trial Judge, the connected rule is also discharged.

N.C. Mukherji, J.

I agree.