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Rajasthan High Court · body

1952 DIGILAW 186 (RAJ)

Mahendra Prasad v. State

1952-07-31

BAPNA, WANCHOO

body1952
Bapna, J.—These four petitions relate to the enrolment as pleaders or renewal of their sanads under the Indian Legal Practitioners Act (Act XVIII of 1879). The petitioners in petitions Nos. 17 and 20 were enrolled as permanent pleaders in the High Court of the former covenanting State of Jaipur, under sec. 7 of the Jaipur Legal Practitioners Act, 1943, prior to the formation of the United State of Rajasthan. The petitioners in petitions No. 18 and No. 19 were enrolled as permanent pleaders in the former High Court of the covenanting State of Jodhpur under the Marwar Legal Practitioners Act, 1913 prior to the formation of the United State of Rajasthan. 2. The Indian Legal Practitioners Act (Act No. XVIII of 1879) was extended to Rajasthan in its entirety on 1st April 1951 by virtue of the Part B States (Laws) Act, 1951 (Act No. III of 1951). This will be referred to hereafter as the Extended Act. Sec. 6 of the Act provides for rules to be made by the High Court for qualifications, admission and certificates of proper persons to be Pleaders of the subordinate courts and of the Revenue-offices situate within the local limits of its appellate jurisdiction. Sec. 7 provides for a certificate to be issued to a person admitted as a Pleader under sec. 6 of the Act. This certificate is to be one which may authorize the holder thereof to practise up to the end of the current year. Para (2) of sec. 7 provides for renewal of certificates if the holder of the certificate desires to continue to practise, but the renewal is to be subject to any rules consistent with the Act which may from time to time be made by the High Court in that behalf. Sec. 10 prohibits any person to practise as a Pleader unless he holds a certificate issued under sec. 7 of the Act. 3. Prior to the formation of the United State of Rajasthan, there were different enactments in force in the covenanting States and while in many States the Pleaders had to get their sanads renewed from year to year, in the covenanting States of Jaipur and Jodhpur the law provided for permanent enrolment of Pleaders. 4. 7 of the Act. 3. Prior to the formation of the United State of Rajasthan, there were different enactments in force in the covenanting States and while in many States the Pleaders had to get their sanads renewed from year to year, in the covenanting States of Jaipur and Jodhpur the law provided for permanent enrolment of Pleaders. 4. After the formation of Rajasthan an attempt was made to secure uniformity of Laws in Rajasthan and under the Rajasthan Adaptation of Centra] Laws Ordinance (No. IV of 1950) the Indian Legal Practitioners Act, 1879, was applied to the whole of Rajasthan subject to special adaptations. This will be referred t"o hereafter as the Adapted Act. Sec. 4 of the Indian Act was substituted by the following provision:— Section 4 : "Every person now entered as an Advocate, Vakil or Pleader on the roll of a High Court of a covenanting State or hereafter entered on the roll of the High Court of Rajasthan shall be entitled to practise in all the courts subordinate to the High Court of Rajasthan and in all Revenue offices situate within the jurisdiction of such Court." Section 7, a proviso was added to the effect that— "Provided further that no renewal of certificate shall be necessary in the case of Pleaders who have been permanently enrolled as such in the High Court of any covenanting State." The effect of the adaptations was that permanent Pleaders who had been enrolled in the High Courts of the former covenanting States of Jaipur and Jodhpur were entitled as a matter of right to practise in the courts subordinate to the High Court of Rajasthan without any fresh enrolment in the High Court of Rajasthan or getting their sanads renewed from year to year. 5. As a result the permanent Pleaders continued to practise in the courts subordinate to the High Court until the Indian Legal Practitioners Act of 1879 was extended in its entirety by the Part-B States (Laws) Act 1951. On 2nd February, 1952, a notice was issued by the Registrar of this court whereby attention of the Pleaders permanently enrolled in the covenanting States was drawn to the provisions of sec. 7 of the Extended Act and they were asked to have their sanads renewed from the High Court of Rajasthan. 6. On 2nd February, 1952, a notice was issued by the Registrar of this court whereby attention of the Pleaders permanently enrolled in the covenanting States was drawn to the provisions of sec. 7 of the Extended Act and they were asked to have their sanads renewed from the High Court of Rajasthan. 6. It is urged in the aforesaid four petitions that it is not necessary for the petitioners to be enrolled afresh in the Rajasthan High Court or to have their sanads renewed under the Extended Act. The arguments advanced by the petitioners being similar, the four petitions were linked up and a hearing was given on the judicial side. 7. It was argued by learned counsel for the petitioners that sec. 6 of the part B States (Laws) Act preserves their right to practise as a Pleader in the courts subordinate to the High Court. The arguments advanced by the petitioners being similar, the four petitions were linked up and a hearing was given on the judicial side. 7. It was argued by learned counsel for the petitioners that sec. 6 of the part B States (Laws) Act preserves their right to practise as a Pleader in the courts subordinate to the High Court. Repeals and savings : If immediately before the appointed day, there is in force in any Part B State any law corresponding to any of the Acts or Ordinances now extended to that State, that law shall, save as otherwise expressly provided in the Act, stand repealed : Provided that the repeal shall not affect— (a) the previous operation of any law so repealed or anything duly done or suffered thereunder, or (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed, or (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if this Act, had not been passed : Provided further that, subject to the preceding proviso, anything done or any action taken (including any appointment or delegation made, notification, order instruction or direction issued, rule regulation, form bye-law or scheme framed, certificate obtained, patent permit or licence granted or registration effected) under any such law shall be deemed to have been done or taken under the corresponding provision of the Act or Ordinance as now extended to that State, and shall continue to be in force accordingly, unless and until superseded by anything done or any action taken under the said Act or Ordinance." The contention of the learned counsel is that although the Indian Legal Practitioners Act 1879, as adapted by the Rajasthan Adaptation of Central Laws Ordinance, 1950, has been repealed by the opening words of sec. 6 of the Part B States (Laws) Act, 1951, the proviso (b) to that section preserved the right to practise as a Pleader in courts subordinate to the High Court of Rajasthan which had already been acquired under the Adapted Act. 8. 6 of the Part B States (Laws) Act, 1951, the proviso (b) to that section preserved the right to practise as a Pleader in courts subordinate to the High Court of Rajasthan which had already been acquired under the Adapted Act. 8. The argument is plausible, but on a careful consideration it has no force. On a perusal of the Adapted Act and the Extended Act, it becomes clear that the right given to the Pleaders permanently enrolled in the covenanting States by secs. 4 and 7 of the Adapted Act is quite inconsistent and incompatible with the provisions of the Extended Act. Under sec. 4 of the Act, Pleaders permanently enrolled in the covenanting States were not required to be enrolled afresh in the Rajasthan High Court and no issue of a new sanad or a renewal of a sanad was necessary. Sec. 10 of the Extended Act debars any person from practising in subordinate courts unless he holds a certificate issued under sec. 7 of the Act. Under sec. 7, the sanad could be issued to a person who was admitted under sec. 6 and the renewal of a sanad was to be subject to the rules made by the High Court from time to time. The rights granted by ss. 4 and 7 of the Adapted Act were, therefore, completely taken away by the extension of the Indian Act in its entirety. The Indian Act not only authorised the High Court to make rules consistent with the Act for the qualifications, admission and certificates of proper persons to be Pleaders, but these rules could be changed and altered from time to time by the High Court and the renewal of sanads was to be subject to these changed or altered rules. The effect of the provisions of the Indian Act as extended was that it authorized the High Court to make its own rules and change them when necessary. In making such rules for admission, the High Court could prescribe a minimum educational standard which may not have been acquired by some of the Pleaders in the covenanting States and who would not be thus qualified for enrolment under the Extended Act. In making such rules for admission, the High Court could prescribe a minimum educational standard which may not have been acquired by some of the Pleaders in the covenanting States and who would not be thus qualified for enrolment under the Extended Act. Similarly, rules could be altered to provide a higher educational standard at any time and it would debar the renewal of sanads in the case of some Pleaders who might have been enrolled by the High Court previous to such alteration. These are the powers which have been given to the High Court under the Extended Act. The contention of learned counsel for the petitioners that the right to practise granted by the Adapted. Act under secs. 4 and 7 was still preserved by the proviso (b) to sec. 6 of Part B States (Laws) Act, would render nugatory the provisions of secs. 6, 7 and 10 of the Extended Act. 9. Learned counsel for the petitioners argued that the rights acquired under the previous Act would remain preserved even though a different intention appeared in the repealing Act as the words "unless a different intention appears" are not contained in the proviso to sec. 6 of the Part B States (Laws) Act. The proviso to sec. 6 is nothing more than what is contained in sec. 6 of the General Clauses Act and as observed by Craies on Statute Law (4th Edition, page 353) "sometimes when an Act is repealed it is expressly enacted in the repealing Act that this repeal shall not affect any right or liability acquired, accrued, or incurred. But as the rule of law is as above stated, such a clause as this is apparently unnecessary, and only inserted ex abundanti cautela and this is now the general canon of construction as to repeals made after 1889. The year 1889 was the year in which the interpretation Act, 1889 (52 and 53 Vict. C. 63) was passed by the Parliament of England. The rule of law as to the effect of repeal which was contained in sec. 38 (2) of the Interpretation Act, 1889, is repeated in sec. 6 of the Indian General Clauses Act (Act X of 1897) and is as follows :— "6. C. 63) was passed by the Parliament of England. The rule of law as to the effect of repeal which was contained in sec. 38 (2) of the Interpretation Act, 1889, is repeated in sec. 6 of the Indian General Clauses Act (Act X of 1897) and is as follows :— "6. Effect of repeal:—Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not— (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture punishment may be imposed as if the repealing Act or Regulation had not been passed " 10. The proviso (b) mentioned in sec. 6 of the Part B States (Laws) Act corresponds to clause (c) in sec. 6 of the General Clauses Act, but the general rule is subject to an exception which is "unless a different intention appears". A comparison of the Adapted Act and the Extended Act made above clearly shows that the intention of the Extended Act was to do away with the special privileges recognised by the Adapted Act. While the purpose of the adaptation of Central Laws in Rajasthan was to bring about a uniformity of laws in the area covered by the covenanting States of Rajasthan, the purpose of the Part B States (Laws) Act was to bring about uniformity of laws in Part B States. The Extended Act would, therefore, become applicable and would supersede the provisions of the Adapted Act if they were inconsistent with the Extended Act. It may be pointed out that under sec. The Extended Act would, therefore, become applicable and would supersede the provisions of the Adapted Act if they were inconsistent with the Extended Act. It may be pointed out that under sec. 11 of the Rajasthan Adaptation of the Central Laws Ordinance, 1950, the provisions of the Indian General Clauses Act (Act No. X of 1897) were applicable for the interpretation of the Adapted laws and the same Indian General Clauses Act is also applicable for the interpretation of the Central Acts. 11. In our opinion, the right to practise as a Pleader in courts subordinate to the Rajasthan High Court without any enrolment or renewal of the sanad acquired by sec. 4 and sec. 7 of the Adapted Act has now been lost by the extension of the Indian Legal Practitioners Act 1879 in its entirety, and the permanent Pleaders, are required under the Extended Act to apply for enrolment and renewal of their sanads according to the rules made by this High Court under sec. 6 of the Extended Act. They will also be required to have their sanads renewed from year to year under sec. 7 of the same Act and in case of failure to do so they are liable to be debarred from practising under sec. 10 of the Extended Act (Indian Legal Practitioners Act, No. XVIII of 1879). 12. All the four petitions are, therefore, rejected. The office will take further action in the matter.