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Judgment
K. Ramaswamy, J. 1. The petitioner Mr. N. A. Nazareth is seeking a writ of Mandamus or any other appropriate writ or direction to the Bar Council of the State of Andhra Pradesh restraining it from taking any adverse step to de-bar the petitioner from practising the profession of law in the State of Andhra Pradesh. According to the petitioner he was enrolled as an advocate in 1953-54 on the roll of Rajasthan State Bar Council and he practised in Jaipur, Delhi, Calcutta, Bombay and Madras prior to the Advocate''s Act 25 of 1961 (for short ''the Act'') came into force. He practised up to 1958 throughout the Metropolitan Cities of India. He came down to Hyderabad after the demise of his father and stayed for some time in his father''s house. There arose litigation in respect of his father''s property. He abandoned all his law books, certificates and furniture in the house and he went to Bombay. When he came back along with his wife to stay in his house, to his surprise, he found that his step-mother was in possession of his house and all his belonging including law books, certificates etc., were found missing from the house. He made an enquiry but found no reply. Some foul play was played by his step-mother and relatives. He made a complaint to the police in that regard. But the Police could not trace any of his belongings. His enrolment certificate issued by the Rajasthan State Bar Council was also gone with the entire moveables. He went to Bombay and joined the service as a Field Officer in General Insurance Corporation of India at Bombay. In the year 1977 he came back to Hyderabad with his family after leaving the job. He was practising at Hyderabad in the Criminal Courts. He made several representations from the year 1.980 to 1983 to the States Bar Council and also to the other Bar Councils to trace the record. On July 20, 1984 the Secretary of the respondent called upon the petitioner to furnish the date of enrolment of the petitioner and also the name of the Bar Council on the rolls of which he was enrolled. On Oct. 20, 1984 he sent another reminder. The petitioner has sent a reply on Oct. 27, 1984 informing all the details. But still the respondent with a mala fide intention and ulterior motive is calling upon the petitioner to prove his enrolment. The petitioner has been pursuing his legal practice having been enrolled as an advocate. He furnished all the material details in his reply dated Oct. 27, 1984 and that the Bar Council is demanding to restrain or debarring him from practising the profession of law. Therefore, he seeks the relief referred to herein before. Mr. K. V. Satyanarayana, Secretary of the Bar Council of the State of A.P., has filed his counter-affidavit on behalf of the respondent. It is stated that the petitioner''s allegation that he was enrolled as an advocate in 1953-54 on the roll of Rajasthan State Bar Council cannot be correct for the reason that enrolments are being done by the respective High Courts under the Indian Bar Council Act, 1926 and not by the respective Bar Councils. Therefore, the petitioner''s contention that he was enrolled as an advocate in the Bar Council of Rajasthan is not correct The respondent is not aware whether the petitioner had practised at Jaipur, Delhi, Calcutta, Bombay and Madras. It is for the petitioner to prove the same. It is also denied that the petitioner was practising up to 1958 throughout the Metropolitan Cities without any hindrance. It is stated that a letter was addressed by him on July 20, 1984 to ''the petitioner to furnish the date of his enrolment as an advocate and also the name of the Bar Council of which his name was entered. The petitioner was also requested to send a true copy of the enrolment certificate. As no reply was received, another letter dated Oct. 20, 1984 was sent as a reminder. The petitioner has sent his reply on Oct. 27, 1984. Therein he stated that in a criminal case, C.C. No. 713/77, on the file of the Court of the IV Metropolitan Magistrate, Hyderabad, some particulars are claimed to have been stated and he sought extension of time to produce the records. Despite issuing several letters, the petitioner has failed to furnish the necessary information regarding his enrolment as a legal practitioner. Therefore, it is stated, the petitioner is not entitled to practise whiting the jurisdiction of the respondent-Bar Council. The petitioner has filed O.S. No. 1304 of 1987 on the file of the VI Assistant Judge, Hyderabad, against the Bar Council of India, Bar Council of Rajasthan and the respondent to declare that he is a bona fide legal practitioner and to declare that the circular issued by the respondent on Oct. 17, 1986 is illegal and for consequential injunction. Written statement was riled on behalf of the respondent and the suit is pending. It is also stated that on the earlier occasion the petitioner filed O. S. No. 2663 of 1986 on the file of the IV Asst. Judge, City Civil Court, Hyderabad, for injunction. The suit was dismissed on Sept. 5, 1986 as not pressed. It is stated that the petitioner is illegally continuing as an advocate without producing any material before the Bar Council to the effect that he was enrolled as an advocate. The Chief Metropolitan Magistrate, Hyderabad, in his letter dated : Jan. 17, 1987 addressed to the Assistant Commissioner of Police (has asked) for taking appropriate action against the petitioner.
The contention of Sri Nazareth is that he has filed a declaration before the Bar Council of India that he was enrolled as an advocate in the year 1953-54 in the Bar Council of Rajasthan with Roll No. 1179 as per the Old Register. It was duly received by the Secretary, Bar Council of India on Oct. 31, 1984. No steps have been taken by the Bar Council of India to transfer the enrolment papers of the petitioner to the respondent. The petitioner is entitled to practise the profession of law which he has been practising all the while. He is now aged 78 years and at this fag end of his life he may not be prevented from practising the law. The question, therefore, is whether the mandamus or the direction sought for can be given to the respondent-Bar Council. With a view to appreciate the stand taken by the petitioner, it is necessary to examine the relevant statutory provisions. In the year 1953-54 in which the petitioner claimed to have been enrolled as an advocate, the relevant law in force was the Indian Bar Councils Act, Act No. XXXVIII of 1926. Section 8 of the Indian Bar Councils Act provides thus :
"8. Enrolment of advocates : --
(1) No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the advocates of the High Court maintained under this Act:
Provided that nothing in this sub-section shall apply to any attorney of the High Court.
(2) The High Court shall prepare and maintain a roll of advocates of the High Court in which shall be entered the names of --
(a) all persons who were as advocates, vakils or pleaders, entitled as of right to practise in the High Court immediately before the date on which this Section comes into force in respect thereof, and
(b) all other persons who have been admitted to be advocates of the High Court under this Act.
The proviso is not necessary and hence omitted.
(3) Entries in the roll shall be made in the order of seniority; and such seniority shall be determined as follows:
The Details are not necessary and hence omitted.
(4) xxxxx
(5) The High Court shall issue a certificate of enrolment to every person enrolled under this Section.
(6) The High Court shall send to the Bar Council a copy of the roll as prepared under this Section, and shall thereafter communicate to the Bar Council all alterations in, and additions to the rolls as soon as the same have been made.
(7) The Bar Council shall enter in the copy of the roll all alterations and additions so communicated to it."
Section 9 of the Act prescribes the qualifications and admission of advocates. The other Sections are unnecessary for the purpose of disposal of this case and hence omitted. A reading of the above Sections shows that a person, who is eligible to be enrolled as an advocate under S. 8, shall be enrolled as an advocate and his name shall be entered on the rolls of the advocates of the High Court and a certificate of enrolment shall be issued to every person enrolled. Then the High Court communicates a copy thereof to the Bar Council concerned and the Bar Council also maintains, the rolls of the advocates enrolled under S. 8 of the Act. Such advocate alone is entitled to practise profession of law. Section 17 of the Act provides the procedure of the advocates practising on the notified date, on which date the Act has came into force. The Act has come into force in Nov. 1961. Section 17(1) of the Act reads thus:
"17(1) Every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of:
(a) all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926 immediately before the appointed day including persons, being citizens of India, who before the 15th day of August, 1947, were enrolled as advocates under the said Act in any area which before the said date was comprised within India as defined in the Government of India Act, 1935, and who at any time, express an intention in the prescribed manner to practise within the jurisdiction of the Bar Council."
Clause (b) and other sub-sections are not necessary for the purpose of disposal of this case and hence omitted.
A reading thereof clearly indicates that all persons, who were entered on the rolls as advocates of any High Court under the Indian Bar Councils Act immediately before the appointed day, are obliged to give an intimation in the prescribed manner of their intention to practise within the jurisdiction of the Bar Council On giving such an intimation, the Bar Council enters their names on its rolls. Section 29 gives the right to practise in Chapter IV which reads as follows:
"29. Subject to the provisions of the Act, and rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates."
Therefore, under S. 29, after the Act has come into force and from the notified date there is only one class of persons entitled to practise the profession of law, viz., Advocates. Thus the right to practise throughout the country has been found in S. 30 which reads thus:
"30. Subject to the provision of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends --
(i) in all courts including the Supreme Court.
(ii) before any tribunal or person legally authorised to take evidence; and
(iii) before any other authority or person before whom such advocate is by or under any law for the time, being in force entitled to practise."
Section 33 of the Act is also relevant for the purpose of disposal of this case which reads as follows :
"33. Except as otherwise provided in this Act or in any other law for the time being in force , no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act."
A reading of these Sections thus makes it manifest that an advocate, who is enrolled under the Act or who has given a declaration under S. 17(1)(a) to the Bar Council for enrolment under the Indian Bar Councils Act giving his intention to practise within the jurisdiction of the State Bar Council in the prescribed manner and whose name is entered in the rolls of the concerned Bar Council, is entitled to practise the profession of law as of right throughout the territory of India. The words ''Bar Councils'' have been defined under S. 3 of the Act. Therefore, the respondent is one within the meaning of S. 3(1) of the Act. The name of the petitioner shall, therefore, be entered in any of the rolls of the State Bar Council to have a right to practise under S. 30 of the Act. The question, therefore, is whether the petitioner''s name has been entered in any of the State Bar Council''s rolls as an advocate. The petitioner admittedly filed a civil suit, O.S. No. 1304 of 1987, for a declaration on the file of the VI Asst. Judge, City Civil Court, Hyderabad. To question put by me to Mr. Nazareth whether he intends to avail the alternative remedy, under which he has already filed a civil suit in the City Civil Court or press this writ petition for consideration on merits. He stated that he will abide by the decision of this Court and depending upon the result, he can take action in the civil Court. Therefore, I am asked to decide the matter on merits. Accordingly I am deciding this writ petition, though the petitioner has already availed of the alternative remedy by filing a civil suit. It is also seen that under S. 8(5) of the Act a certificate of enrolment would be given by the High Court of Rajasthan. The petitioner made his averment in the writ petition that he was enrolled as an advocate on the rolls of the Bar Council of Rajasthan. Therefore, it must be his enrolment under the Act. But this is not the stand taken across the bar by the petitioner. He claims that he was enrolled as a Pleader in Rajasthan High Court in the year 1953-54 obviously under the Indian Bar Councils Act, 1926. As stated earlier, the enrolment certificate would be given by the High Court under Sub-section (5) of S. 8 of the Act. He claims in his affidavit that the certificate was kept in his house at Hyderabad But the house number was not given in the writ petition and that the certificate was claimed to have been destroyed by his stepmother. But the Indian Bar Councils Act itself provides the procedure regarding the enrolment under S. 8, and under Sub-section (6) the High Court communicates a copy of the certificate to the State Bar Council and the Bar Council maintains a list. If really the petitioner was enrolled as a Pleader as now contended (instead) of his averment as an advocate before the Bar Council of the State of Rajasthan) then one would expect that he should have obtained a certificate from that Bar Council Then an important factor which he has to do, but has not done on his own admission, by giving a declaration before the State Bar Council of Rajasthan as required under S. 17(1)(a) in the prescribed manner of his intention to practise after the Act has come into force. Admittedly he did not give such a declaration. He claims that he made that declaration in the plaint filed by him in the suit. This is not the requirement as contemplated under S. 17(1)(a). Thereby it appears to be that his name did not find place in the rolls of the Bar Council Admittedly, his name does not find place in the rolls of Rajasthan Bar Council. Therefore, the question is whether the petitioner is entitled as of right to practise the profession of law. As seen from S. 30, entry of the name on the State Rolls is a condition precedent to practise as an advocate : he is not entitled to practise the profession of law. In view of the fact that the petitioner has not produced any evidence that his name finds place in any rolls of any State Bar Council, then this Court cannot give direction to the respondent -- Bar Council -- to take any appropriate action as per the provisions of the Act or the Rules made thereunder. No Mandamus can be issued restraining the Bar Council to take action as per law. Therefore, this Court cannot give any direction as sought for. The writ petition is liable to be dismissed and it is accordingly dismissed, but in the circumstances of the case, there shall be no order as to costs.