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2014 DIGILAW 1477 (AP)

Bar Council of India v. Savulgay Prabhakar

2014-12-05

KALYAN JYOTI SENGUPTA, SANJAY KUMAR

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JUDGMENT Kalyan Jyoti Sengupta, J. 1. The aforesaid two appeals have already been admitted for hearing. 2. Both the interlocutory applications are taken up for hearing, though arising out of separate appeals, however fact and law involved therein are identically same and further, Hon'ble trial judge has passed common judgment and order dated 12.11.2014 in two separate writ petitions, being W.P. Nos. 17676 & 24760 of 2014. 3. It appears that both the writ petitions were filed being aggrieved by the communication of the appellant. It appears that 1st respondent herein is described as 'Government of India'. We think 'Government of India' is not sui juris under Article 300 of the Constitution of India rather 'Union of India'. Therefore, necessary correction has to be made deleting the word 'Government' substituting with the word Union. We direct the office to do the needful before issuing a copy of this order. 4. Essentially, in both the writ petitions, a declaration has been sought that, by virtue of Section 34 of the Andhra Pradesh Reorganization Act, 2014 (hereinafter referred to as 'Act, 2014'), Bar Council for the State of Telangana has become functional. 5. Therefore, necessary steps should be taken by the 1st respondent-Union of India as a consequential measure and further, the letter of the Bar Council of India, being the appellant herein, dated 21.6.2014 is questioned in relation thereto. 6. Shorn of all the details, the facts leading to filing of the aforesaid two writ petitions and consequently, the present appeals, are as follows: Writ petitioners in both the writ petitions are practising advocates of this Court. They intend to exercise their option for transferring their names to the rolls of the Bar Council of the State of Telangana from the existing Bar Council of State of Andhra Pradesh (hereinafter referred to as 'A.P. Bar Council'). Accordingly, they made representations. Immediately before receipt of the said representations of the writ petitioners, A.P. Bar Council, the 4th respondent in the writ petition, wrote a letter dated 10.6.2014 to Bar Council of India (BCI), the appellant herein, seeking guidance from the appellant regarding enrolment of law graduates and continuation of proceedings pending before the disciplinary committee. The aforesaid request was placed in the meeting of the General House of the appellant on 17.6.2014. The aforesaid request was placed in the meeting of the General House of the appellant on 17.6.2014. In the meeting, it was resolved that the A.P. Bar Council would continue to exercise disciplinary jurisdiction as well as power of enrolment of law graduates as advocates for practising in both the State of Andhra Pradesh and State of Telangana. It was further stated that option shall be invited from those persons seeking to enrol as advocates on the rolls of Bar Council of State of Telangana and that of State of Andhra Pradesh separately as and when bifurcation of Andhra Pradesh State Bar Council takes place. Accordingly, two separate registers shall be maintained for two States as per the option given by the candidates. This resolution was informed by a communication dated 21st June, 2014 by the appellant, to the A.P. Bar Council, which was also questioned in the writ petitions. 7. The learned trial Judge, after hearing the learned counsel and interpreting the provisions of Section 34 of Act, 2014 vis-a-vis provisions of Section 3 of the Advocates Act, 1961, held that the meaning of the words "the date" mentioned in sub-section (1) of Section 34 is 'appointed day', namely, 2nd June, 2014. In other words, the learned trial Judge declared that on and from 2nd June, 2014, Telangana Bar Council is deemed to have been constituted and/or came into being. Hence, the direction given by the appellant is contrary to the provisions of Act, 2014. Therefore, His Lordship was pleased to give a direction to the Central Government and the appellant to ensure that the State Bar Council for State of Telangana becomes operational. 8. At this interlocutory stage, the only consideration for this Court is whether the interpretation given by the learned trial Judge, prima facie, is correct or not. 9. Mr. D. Prakash Reddy, learned Senior Advocate appearing for the appellant, submits that the interpretation given by the learned trial Judge is patently wrong and such interpretation leads to absurdity. He would urge that the language of sub-section (1) of Section 34 has reference to sub-section (1) of Section 30 of Act, 2014. According to him, sub-section (1) of Section 30 is a provision for converting the High Court of Judicature at Hyderabad into a Common High Court till establishment of High Court of Andhra Pradesh. He would urge that the language of sub-section (1) of Section 34 has reference to sub-section (1) of Section 30 of Act, 2014. According to him, sub-section (1) of Section 30 is a provision for converting the High Court of Judicature at Hyderabad into a Common High Court till establishment of High Court of Andhra Pradesh. The learned trial Judge has erroneously taken the appointed day as being the date mentioned in sub-section (1) of Section 34. He says that sub-section (1) of Section 30 has to be read as a whole and if it is read carefully, it would emerge that two dates are contemplated, one is the appointed day, being 2nd June, 2014, and another is the day when a separate High Court for the State of Andhra Pradesh is constituted under Article 214 of the Constitution of India read with Section 31 of Act, 2014. Otherwise, it does not make any sense. Therefore, he asserts that separate Bar Council for the State of Telangana cannot be said to have been constituted till a separate High Court for the State of Andhra Pradesh is created, and the date on which this High Court will be created is the date to be understood both in sub-section (1) of Section 30 and sub-section (1) of Section 34. 10. He contends further that wherever the Legislature intended to use the word 'appointed day' being 2nd June, 2014, it has been so used in various sections of the Act. He has drawn our attention to the sections of Part-II, Part-III and everywhere therein the words "appointed day" are used. The Legislature purposefully used the word "the date" in sub-section (1) of Section 34 and that of Section 40 of the Act, 2014. Therefore, he concluded that amendment of Section 3 of Advocates Act, 1961 by insertion of the words 'Telangana" will take effect only from the date when a separate High Court of Andhra Pradesh is constituted. 11. Mr. S. Satyam Reddy, learned Senior Advocate appearing for one of the writ petitioners/respondents, supports the interpretation given by the Hon'ble trial Judge. In furtherance of his submission, he says that with the commencement of Act, 2014, being 2nd June, 2014, the Bar Council for the State of Telangana is deemed to have been constituted. It has to be made functional. S. Satyam Reddy, learned Senior Advocate appearing for one of the writ petitioners/respondents, supports the interpretation given by the Hon'ble trial Judge. In furtherance of his submission, he says that with the commencement of Act, 2014, being 2nd June, 2014, the Bar Council for the State of Telangana is deemed to have been constituted. It has to be made functional. He says that unlike Section 30, Section 34 of Act, 2014 does not speak about a common Bar Council. He says in sub-section (1) of Section 30 of Act, 2014, only one date is mentioned, that is appointed day, and no other date is mentioned. With the insertion of the word "Telangana" in between the words "Rajasthan" and "Uttar Pradesh" in Section3 of the Advocates Act, 1961, by virtue of sub-section (1) of Section 34 of Act, 2014, A.P. Bar Council cannot function as the Bar Council for State of Telangana. If the interpretation sought to be given by the learned Senior Counsel for the appellant is accepted, it will defeat the object of the provisions of Section 34 of Act, 2014 itself. 12. He therefore submits that the learned trial Judge was perfectly justified in passing the order. 13. Mr. S.R. Ashok, learned Senior Advocate appearing for another writ petitioner, supported the argument of Mr. S. Satyam Reddy, and in addition thereto, says that the apparent meaning of the words employed in the statute should be given as there is no ambiguity that only one date is mentioned in sub-section (1) of Section 30 of Act, 2014 i.e., the appointed day, being 2nd June, 2014, and no other date has been mentioned. Hence, the Court cannot substitute date nor in this case it can give any second interpretation, as a second interpretation is possible when there is any ambiguity. 14. The learned Counsel for Union of India, while supporting the argument of Mr. D. Prakash Reddy, submits that under the Advocates Act, 1961 or Rules framed thereunder, the Central Government has no power to take any steps for making the Bar Council for State of Telangana, functional. The learned trial Judge, without tracing such power, has given a direction to take steps. The Central Government is unable to take step in the absence of specific provision under the Act, 2014. 15. The learned trial Judge, without tracing such power, has given a direction to take steps. The Central Government is unable to take step in the absence of specific provision under the Act, 2014. 15. The learned counsel for A.P. Bar Council contends that it appears that in view of commencement of Act, 2014 the function of the A.P. Bar Council has come to a standstill. So, necessary instructions and guidance were sought from the appellant and in terms of such guidance, two separate Registers are maintained for enrolment of fresh advocates and now, this direction given under the provisions of the Advocates Act, 1961, under Section 48B are to be followed for the time being. 16. We make it clear that our findings and decision on this issue right now is absolutely tentative and for the purposes of dealing with the interlocutory applications and it will not be a binding factor either way at the time of final hearing of the appeals. 17. Before we discuss the issues involved, considering the contentions and rival contentions of the learned counsel, we set out Section 34 of Act, 2014, hereunder. 34. Special Provision relating to Bar Council and advocates:- (1) On and from the date referred to in sub-section (1) of section 30, in the Advocates Act, 1961 (25 of 1961), in section 3, in sub-section (1), in clause (a), for the words "Rajasthan, Uttar Pradesh", the words "Rajasthan, Telangana, Uttar Pradesh" shall be substituted. (2) Any person who immediately before the date referred to in sub-section (1) of Section 30 is an advocate on the roll of the Bar Council of the existing State of Andhra Pradesh and practising as an advocate in the High Court at Hyderabad, may give his option in writing, within one year from that date to the Bar Council of such existing State, to transfer his name on the roll of the Bar Council of Telangana and notwithstanding anything contained in the Advocates Act, 1961 (25 of 1961) and the rules made thereunder, on such option so given his name shall be deemed to have been transferred on the roll of the Bar Council of Telangana with effect from the date of the option so given for the purposes of the said Act, and the rules made thereunder. (3) The persons other than the advocates who are entitled immediately before the date referred to in subsection (1) of section 30, to practise in the High Court at Hyderabad or any subordinate court thereof shall, on and after that date, be recognised as such persons entitled also to practise in the High Court of Andhra Pradesh or any subordinate court thereof, as the case may be. (4) The right of audience in the High Court of Andhra Pradesh shall be regulated in accordance with the like principles as immediately before the date referred to in subsection (1) of section 30, are in force with respect to the right of audience in the High Court at Hyderabad. 18. It would appear from sub-section (1) of Section 34 that the Legislature has carefully used the word 'the date' as referred to in sub-section (1) of Section 30 of Act, 2014. Therefore, necessarily, one has to read the provisions of sub-section (1) of Section 30 of Act, 2014, as a whole. Accordingly, the same is set out hereunder: 30. High Court of Judicature at Hyderabad to be common High Court till establishment of High Court of Andhra Pradesh:- (1) On and from the appointed day:- (a) The High Court of Judicature at Hyderabad shall be the common High Court for the State of Telangana and the State of Andhra Pradesh till a separate High Court for the State of Andhra Pradesh is constituted under Article 214 of the Constitution read with section 31 of this Act. (b) The Judges of the High Court at Hyderabad for the existing State of Andhra Pradesh holding office immediately before the appointed day shall become on that day the judges of the common High Court. (2) The expenditure in respect of salaries and allowances of the Judges of the common High Court shall be allocated amongst the States of Andhra Pradesh and Telangana on the basis of population ratio. 19. We are unable to accept the contention that sub-section (1) of Section 30 refers to only one date, that is the appointed day. According to us, as rightly contended by Mr. D. Prakash Reddy, two dates are contemplated under sub-section (1) of Section 30 of Act 2014. 19. We are unable to accept the contention that sub-section (1) of Section 30 refers to only one date, that is the appointed day. According to us, as rightly contended by Mr. D. Prakash Reddy, two dates are contemplated under sub-section (1) of Section 30 of Act 2014. On a reading of clause (a) thereof carefully, one is the appointed day, being 2nd June, 2014, and another is the day or date when a separate High Court for the State of Andhra Pradesh is constituted. 20. Indeed, while interpreting similar expression mentioned in sub-section (1) of Section 40 of Act, 2014, as in that of sub-section (1) of Section34 of the same Act, in one matter viz., Contempt Case No. 965 of 2013, a Division Bench of this Court held on 12th November, 2014, in paragraph-20 of the judgment as follows: 20. Keeping in view this legal aspect, we now examine the relevant provisions of the said Act. If the date mentioned in Section 40 read with Section 30 of the Act is taken as being appointed day, undoubtedly this High Court would be for the State of Telangana alone and not of Andhra Pradesh. Inevitable result would be that the State of Andhra Pradesh would be without any High Court as there is no notification for establishment of High Court for the residuary State of Andhra Pradesh. It is impossible to think that any State or Union Territory will be without a High Court, taking note of the constitutional provisions of Article 214 of the Constitution of India which mandates "There shall be a High Court for each State". This Article does not require a separate High Court for each State or Union Territory individually and this is clear from Article 231 of the Constitution of India which is as follows: 231. Establishment of a common High Court for two or more States – (1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may by law establish a common High Court for two or more States or for two or more States and a Union territory. (2) In relation to any such High Court.- (a) The reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction. (2) In relation to any such High Court.- (a) The reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction. (b) The reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts, be construed as a reference to the Governor of the State in which the subordinate courts are situate. (c) The reference in articles 219 and 229 to the State shall be construed as a reference to the State in which the High Court has its principal seat: Provided that if such principal seat is in a Union territory, the references in articles 219 and229 to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State shall be construed respectively as references to the President, Union Public Service Commission, Parliament and Consolidated Fund of India. The Scheme of the Common High Court for two States in the aforesaid provision has overriding effect over other provision of the Constitution in this context as it starts with a non obstante clause. To put it negatively, it is not necessary always that each State must have its own separate High Court and a common High Court can be contemplated, so it has been done under Section 30 of Act 2014. Such interpretation of treating the date mentioned in sub-section (1) of Section 40 as the appointed day, 02.6.2014, is absolutely absurd and leads to constitutional vacuum. The intention of the Legislature in this context has to be gathered from the other provisions of Act 2014. The court held, amongst others, as follows: 21. In our view, Section 40 has to be read subject to Section 105 of Act 2014. If we interpret the date mentioned in sub-section (1) of Section 40 read with Section 30 as being the date when a separate High Court for the residuary State of Andhra Pradesh is created as required and mentioned in Section 31 of Act 2014 read with Article 214 of the Constitution, it leads to the possibility, reality and avoidance of a constitutional vacuum and non operation of above Act in this context. The intention of the Legislature in Act 2014 is with regard to functioning of this High Court as a common institution for two separate States even after the appointed day till a date is notified as mentioned in Section 31 of Act 2014 for a separate High Court for the State of Andhra Pradesh. The moment a separate High Court is created by notification, under Article 214 of the Constitution read with Section 31 of Act 2014, the present High Court at Hyderabad will not have any territorial jurisdiction over the residuary State of Andhra Pradesh, and it also sounds logical. 21. We find substance in the argument of Mr. D. Prakash Reddy that wherever the Legislature wanted to use 'the appointed day' it has been mentioned specifically in the Act itself, and we could find so in almost all the sections of Part-II, Part-III and even in some places of Part-IV, almost in all of Part-V, Part-VI & Part-VII. 22. Had the Legislature intended to mean the date mentioned in sub-section (1) of Section 30 read with sub-section (1) of Section 34, then there was no difficulty to use the same in sub-section (1) of Section 34 of Act, 2014, as 'the appointed day'. 23. If we read 'appointed day' as it has been done by the learned trial Judge, then it will lead to absurdity as there will be no Bar Council for the residuary State of Andhra Pradesh. According to us, the office of the Bar Council for the State of Andhra Pradesh must be located within the territorial area of the residuary State of Andhra Pradesh, not in Hyderabad, because this city is used as Capital by the State of Andhra Pradesh for a temporary period and for the period of functioning of this High Court as a common High Court. It is true that a common Bar Council is not provided expressly, but while correlating sub-section (1) of Section 34 of Act, 2014 with that of Section 30, the Legislature intended to make it common. 24. Upon interpretation of the statute, if one course of action is found to be practicable and also realistic, it has to be accepted. On the other hand, if the present State Bar Council of Andhra Pradesh is allowed to function as it is with the guidance given by the appellant, there will be no difficulty. 24. Upon interpretation of the statute, if one course of action is found to be practicable and also realistic, it has to be accepted. On the other hand, if the present State Bar Council of Andhra Pradesh is allowed to function as it is with the guidance given by the appellant, there will be no difficulty. Moreover, we do not find any express provision under the Statute or the Rules by which the Union of India or the appellant can take steps to implement the order. In absence thereof we are afraid, such a direction is not authorized by law. 25. We, prima facie, hold contrary to what has been held by the learned trial Judge, that there is no existence of Telangana Bar Council until a separate High Court for State of Andhra Pradesh is created. 26. We accordingly grant stay of operation or further operation of the impugned judgment and order of the learned Hon'ble trial Judge. We however direct that as per the guidance given by the Bar Council of India, the present A.P. Bar Council shall function and maintain separate registers for both the States for enrolment of fresh advocates as per their option. As far as the disciplinary measure is concerned, the A.P. Bar Council can hear and take decisions in this regard, but shall not implement the same till the disposal of the appeals. We also direct the A.P. Bar Council to include the names of both the learned Advocates General as its ex officio members till the disposal of these appeals. 27. Since all the respondents in the above appeals are appearing through their respective learned lawyers, they take notices of the appeals. Let both the appeals be placed in the list for hearing two months hence. 28. The WAMPs are ordered accordingly.