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Pramesh Chandra Gupta v. Registrar, High Court Of Judicature At Allahabad
Judgment Summary — Agarwala, J.
Factual and Procedural Background
Fifteen law graduates who had attended the chambers of senior advocates seeking enrolment as Advocates of the High Court applied to the Registrar for enrolment. The Registrar refused to accept the applications on the ground that there was no validly functioning Bar Council in the State. The applicants sought an order from the High Court to accept their enrolment applications and to admit them to the roll of Advocates so they could practise in the High Court and subordinate courts.
The refusal arose against the backdrop of earlier Bench decisions (Durgeshwar Dayal Seth and Kumari Saroj Rawat) which had held aspects of the Uttar Pradesh amendment to the Indian Bar Councils Act and consequent state notifications to be ultra vires, resulting in the conclusion that no valid Bar Council existed for the new High Court created by the 1948 Amalgamation Order. The present matter was heard by a Full Bench because an earlier two-judge Bench (Agarwala and Sahai, JJ.) considered some observations in those earlier decisions required reconsideration.
Legal Issues Presented
- Whether Sections 3 to 16 of the Indian Bar Councils Act, 1926 (the "Bar Councils Act") apply to the new High Court constituted by the United Provinces High Courts (Amalgamation) Order, 1948.
- Whether, in the absence of a legally constituted Bar Council for the new High Court, the High Court has jurisdiction and power to enrol advocates on its roll and to consider enrolment applications without reference to a Bar Council or compliance with the rules that contemplate Bar Council objections.
- Whether the procedural rules (including notice to the Bar Council and provision for objections) are mandatory conditions precedent to the exercise of the High Court's power of enrolment, or whether they are directory and therefore dispensable where compliance is impossible.
Arguments of the Parties
Applicants' Arguments
- The applicants contended that the High Court has power to enrol them as Advocates entitled to practise in the High Court even in the absence of a Bar Council.
- They further argued that the rules requiring notice to and objections by the Bar Council are merely directory and do not affect the substantive power of the Court to enrol. Even if mandatory, those rules are not conditions precedent to the exercise of jurisdiction and can be waived if impossible to comply with because no Bar Council exists.
Registrar / State / Respondent Position (as recorded)
- The Registrar informed the applicants that their applications could not be entertained and that they could not be enrolled because there was no Bar Council validly functioning in the State (following earlier judicial decisions declaring the ad hoc Bar Council and certain amendments void).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Durgeshwar Dayal Seth v. The Secretary, Bar Council, Allahabad (1954 A.L.J. 477) | Held that the ad hoc Bar Council constituted under the Uttar Pradesh amendment was illegal; held that the amending Act was ultra vires and the State notification under the amended Act was void, and observed that old Bar Councils had not been abolished so a new Bar Council could not be brought into existence. | The Full Bench reviewed and critically examined this decision, accepting some of its findings but disagreeing with the conclusion that a new Bar Council could not be created so long as old Bar Councils (created for different courts) existed; the court held that when the High Court for which a Bar Council was constituted ceases to exist, that Bar Council cannot act for the new High Court. |
| Kumari Saroj Rawat v. The Secretary, Bar Council, High Court, Allahabad (1954 A.L.J. 400) | Held that the Bar Councils Act could not apply to the new High Court unless the State Government issued a fresh notification under the unamended Secs. 1(2) and 1(3) of the Act. | The Full Bench disagreed with those observations, finding that paragraph 17(c) of the Amalgamation Order read with Section 3(29) of the General Clauses Act and the 1928 Governor-General notification meant the Bar Councils Act did apply to the new High Court without a fresh State notification. |
| Montreal Street Railway Company v. Normandin (17 A.C. 170, Privy Council) | Principle that where statutory provisions impose duties but neglect of such duties would cause serious general inconvenience or injustice, courts have treated such statutory requirements as directory; neglect does not nullify the acts done. | The Full Bench relied on this principle to hold that procedural rules requiring reference to a Bar Council are directory where compliance is impossible and that non-compliance does not affect the validity of the Court's enrolment acts. |
| Queen v. The Justices of Leicestershire (L.R. 15 Q.B. 88) | Held that where performance of a condition required by law becomes impossible (e.g., serving notice on a deceased respondent), proceedings may still be validly heard. | Used as supporting authority for the proposition that impossible conditions precedent need not be enforced so as to defeat jurisdiction; applied by analogy to the inability to comply with rules requiring Bar Council reference where no Bar Council exists. |
| Unspecified decision of the Supreme Court (A.I.R. 1953 Supreme Court 318) | Held that a notification under a statute (the Bombay Excise Act in that decision) is included within the phrase "Indian Law" by virtue of Section 3(29) of the General Clauses Act. | The Full Bench relied on this authority to support the view that the 1928 Governor-General notification under the Bar Councils Act counts as "Indian Law" and therefore is carried forward to the new High Court by the Amalgamation Order. |
| In the matter of a refugee Advocate (bench of this Court; citation not specified) | Held that a requirement (recommendation of the District Judge contained in a proviso to Rule 1 under Section 9 of the Bar Councils Act) could be waived when it was not possible to obtain the recommendation. | The Full Bench cited this Court's prior practice to support the proposition that procedural requirements under the Bar Councils Act may be waived when compliance is impossible. |
Court's Reasoning and Analysis
The Full Bench conducted a historical and textual analysis before reaching its conclusions. The main analytical steps were:
- Historical foundation: Traced the High Court's power to enrol advocates to paragraphs 7 and 8 of the Letters Patent (establishing power to approve, admit and enrol advocates, and to make rules for qualification and admission), subject to legislative powers. The Chief Court of Oudh and its powers under earlier laws were also noted.
- Operation of the Indian Bar Councils Act, 1926: Noted how the 1926 Act consolidated law relating to advocates, how Section 1(2) named certain High Courts (including the old Allahabad Court) and how Section 1(3) allowed the Governor-General to bring other sections into force for particular High Courts by notification. A 1928 Governor-General notification had brought Sections 3 to 16 into force for the then-Allahabad High Court effective 1 June 1928.
- Effect of the 1948 Amalgamation Order: The 1948 Amalgamation Order created a new High Court (an amalgamation of the old Allahabad High Court and the Oudh Chief Court). The Amalgamation Order preserved the powers of the new High Court to enrol advocates and provided that references in Indian law to either old court would be construed as references to the new High Court (paragraph 17(c)). The court emphasized that "Indian Law" includes notifications by virtue of Section 3(29) of the General Clauses Act.
- Application of earlier Bench decisions: The court reviewed Durgeshwar Dayal Seth and Kumari Saroj Rawat which had held that the Uttar Pradesh amendment and related state notification were ultra vires and that fresh state notifications would be required. The Full Bench concluded those earlier decisions had not properly considered paragraph 17(c) of the Amalgamation Order read with the General Clauses Act and the existing Governor-General notification; accordingly, the Full Bench disagreed with the view that Sections 3 to 16 could not apply to the new High Court without fresh state action.
- Corporate existence and cessation of old Bar Councils: The court reasoned that though Bar Councils are corporate bodies constituted for particular High Courts (Section 3 of the Bar Councils Act), when the High Court for which a Bar Council was constituted ceases to exist, that Bar Council cannot continue to carry out functions for a High Court to which it was not appointed; practically, a new Bar Council must be constituted for the new High Court if Sections 3 to 16 apply.
- Directory versus mandatory nature of procedural rules: The Full Bench analyzed the rules made under Section 9 (which required notice to and opportunity for the Bar Council to object to enrolment applications). The court distinguished between the substantive jurisdiction to enrol (derived from Letters Patent and preserved by the Amalgamation Order) and the procedural rules. It concluded the notice-and-objection provisions are, in substance, procedural and directory. The court relied upon the maxim lex non cogit ad impossibilia and authorities (including Maxwell on the Interpretation of Statutes, Privy Council and English authorities) to hold that where compliance is impossible or would produce unjust results, procedural obligations of this type may be treated as dispensable.
- Practical justice and consequence analysis: The court noted that refusing to consider applicants until a Bar Council exists would cause injustice and inconvenience to applicants. Conversely, enrolling applicants in the absence of a Bar Council would not cause real injustice to others. On this balance, and in the special circumstances (absence of an existing Bar Council arising from previous invalidations of the ad hoc council and the legislative situation), the Court concluded it could consider enrolment applications without reference to a Bar Council.
- Alternative / fallback: The court further observed that if, contrary to its primary view, Sections 3 to 16 did not apply to the new High Court, the applicants' case would be even stronger because the Court's power of enrolment under the Letters Patent and the Amalgamation Order would then be unfettered by rules under the Bar Councils Act.
Holding and Implications
Holding: Application allowed. The Full Bench directed that the applicants' applications for enrolment as Advocates be considered by the High Court on their merits without reference to a Bar Council.
Implications and consequences:
- The Court held that Sections 3 to 16 of the Indian Bar Councils Act, 1926, are applicable to the new High Court constituted by the 1948 Amalgamation Order (i.e., the Bar Councils Act applies to the new High Court and a new Bar Council can be brought into existence under those provisions without a fresh State notification in the circumstances explained by the court).
- Where no Bar Council exists, the procedural rules requiring notice to and opportunity for the Bar Council to object to enrolment applications are, in the circumstances of impossibility, dispensable; the High Court may consider enrolment applications on their merits notwithstanding non-compliance with those rules.
- The immediate practical effect is that the fifteen applicants are entitled to have their enrolment applications considered by the High Court on merits and not summarily refused on the ground of non-existence of a Bar Council.
- The court explained legal principles (including treatment of procedural obligations as directory where performance is impossible and reliance on the Amalgamation Order and General Clauses Act) that governed its intervention; the opinion does not purport to set out a broader doctrine beyond the reasoning given, but it does resolve the specific legal questions in this factual matrix.
Disposition: Application allowed; applicants' enrolment applications to be considered on merits.
Agarwala, J.:— This is an application by fifteen Law Graduates who have attended the chambers of senior Advocates authorised to give them training for the purpose of enrolment as Advocates of this Court for more than a year, praying that this Court may be pleased to accept their applications for enrolment as Advocates, and admit them to the roll of Advocates of this Court authorising them to practise in this court and in the courts subordinate thereto. It is alleged that the applicants approached the Registrar of the High Court to accept their applications for enrolment as Advocates of this Court but the Registrar informed them that such applications could not be entertained and that the applicants could not be enrolled as there was no Bar Council validly functioning in this State. The contention of the applicants is that this Court has power to enrol them as Advocates entitled to practise in this Court even in the absence of a Bar Council.
2. The difficulty in respect of the applications for enrolment being considered on their merits has arisen on account of a decision of a Bench of this Court in Durgeshwar Dayal Seth v. The Secretary, Bar Council, Allahabad 1954 A.L.J 477. to the effect that the ad hoc Bar Council constituted for this Court under the Bar Councils Act, as amended by the Bar Councils (U.P Amendment) Act, 1950, was an illegal body, as the said amending Act was ultra vires the State Legislature and the notification issued by the State Government under the amended Bar Councils Act applying Secs. 3 to 16 of the Act to this High Court was consequently void and of no effect. The Bench further observed that the old Bar Councils have not been abolished and that till they are abolished a new Bar Council for this High Court which is a new High Court cannot be brought into existence and that Secs. 3 to 16 of the Bar Councils Act of 1926 can be applied to this Court only when a fresh notification is issued by the State Government under Sec. 1(3) of the Act. In a subsequent case reported an Kumari Saroj Rawat v. The Secretary, Bar Council, High Court, Allahabad 1954 A.L.J 400. the same Bench held that the Bar Councils Act of 1926 could not apply to this High Court unless the State Government issued a fresh notification under Secs. 1(2) and 1(3) of the unamended Bar Councils Act of 1926. The matter at first came up for decision before a Bench of this Court consisting of Agarwala and Sahai, JJ. and, as they were of opinion that some of the observations made by the Bench which decided the above noted two cases required reconsideration, the case was referred to this Full Bench. To understand the contentions of the parties and to pronounce an opinion on them, it is necessary to trace the history of the power of the High Court to enrol Advocates on its roll entitling them to practise in the Court.
3. By a Letters Patent of 17th March, 1866, a High Court of Judicature was established in the North Western Provinces on the 1st of June, 1866, with its seat at Agra. In 1869 the High Court was shifted at Allahabad. On the 11th of March, 1915 the Letters Patent of the North-Western Provinces High Court were amended and the name of the Court was changed into the High Court of Judicature at Allahabad. This Court had jurisdiction in the territories of the Province of Agra. The power to enrol Advocates entitling them to practise before the High Court was described in paragraphs 7 and 8 of the Letters Patent. By para 7 the Court was authorised and empowered in the following words:—
“…. To approve, admit and enrol such and so many Advocates, Vakeels and Attorneys as to the said High Court shall seem meet and such Advocates, Vakeels and Attorneys shall be and are hereby authorized to appear for the Suitors of the said High Court and to plead or to act or to plead and act for the said suitors according as the said High Court may by its rules and directions determine and subject to such rules and directions.”
4. Para 8 provided—
“…. The said High Court of Judicature at Allahabad shall have power to make rules for the qualification and admission of proper persons to be Advocates, Vakeels and Attorneys at Law of the said High Court and shall be empowered to remove or to suspend from practice on reasonable cause the said Advocates, Vakeels or Attorneys at Law.”
5. This power was, by paragraph 35 of the Letters Patent, subject to the Legislative powers of the appropriate Legislature.
6. For the province of Oudh, a Chief Court was established under Act IV of 1925 with its seat at Lucknow. The power to enrol Advocate was derived from the Legal Practitioners Act, 1879.
7. In 1926, the Indian Bar Councils Act (Act XXXVIII of 1926) came into force. By this Act the whole law relating to Advocates entitled to practise in the High Courts in India was consolidated. The Act in the first instance extended to the then High Court of Allahabad and certain other High Courts and under Sec. 1(2) it could be made applicable to such other High Courts as the Governor-General in Council may, by a notification in the official gazette, declare to be High Courts to which the Act applied. Sub-sec. (3) of Sec. 1 of the Act provided that
“Sec. 1 and Secs. 2, 17, 18 and 19 shall come into force at once”;
and that the Governor-General in Council may, by notification in the Gazette of India, direct that the other provisions of the Act or any provision thereof specified in the notification, shall come into force in respect of any High Court to which the Act applied on such date as he may by the notification appoint. A notification under sub-sec. (2) of Sec. 1 applying the Act to the Oudh Chief Court was made on the 1st of March, 1928, and, a notification of the same date applied to that Court Secs. 3 to 16 also, so that all the sections of the Act applied to the Chief Court of Oudh as from 1st March, 1928. As the High Court of Judicature at Allahabad was already mentioned in the original sub-sec. (2) of Sec. 1, no notification under that section was required. A notification under sub-sec. (3) of Sec. 1 of the Act was made by the Governor-General applying Secs. 3 to 16 of the Act to the High Court of judicature at Allahabad as from the 1st of June, 1928. As an argument has been based upon the language of this notification, we may quote it here in full. It runs:
“In pursuance of sub-sec. (3) of Sec. 1 of the Indian Bar Councils Act, 1926 (XXXVIII of 1926), the Governor-General in Council is pleased to appoint the first day of June, 1928 as the date on which the provisions of the said Act not yet in operation shall come into force in respect of the High Court of Judicature at Allahabad.” (Vide Gazette of India, dated April 7, 1928, Part I, page 400). Thereafter the Bar Councils for the two Courts at Allahabad and Lucknow came into existence according to the provisions of the Bar Councils Act and continued to function separately under the two Courts. Sec. 8(1) of the Bar Councils Act provided—
“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.”
8. Sub-sec. (2) of Sec. 8 directed the High Court to prepare and maintain a roll of Advocates of the High Court in which shall be entered the names of—
(a) all persons who were entitled to practise in the High Court before the date on which the section came into force, and
(b) all other persons who were admitted to be Advocates of the High Court under the Act.”
9. Under Sec. 9, the Bar Council was, with the previous sanction of the High Court, empowered to make rules to regulate the admission of persons as Advocates of the High Court, but there was a proviso to this to the effect that such rules shall not limit or in any way affect the power of the High Court to refuse admission to any person at its discretion. Sec. 19(2) of the Act provided that—
“When Secs. 8 to 16 come into force in respect of any High Court of Judicature established by Letters Patent, this Act shall have effect in respect of such Court notwithstanding anything contained in such Letters Patent, and such Letters Patent shall, in so far as they are inconsistent with this Act or any rules made thereunder, be deemed to have repealed.”
10. Under the rules made under Sec. 9 of the Act, all applications for enrolment as Advocates had to be made to the High Court and were to for sanctioned or refused by the High Court, but it was provided, vide rule 1(4) that
“On receipt of the application the Registrar shall cause a notice of the said application to be served on the Secretary, Bar Council, together with a copy of the application, intimating that the application will for taken into consideration after fifteen days from the date of the service of the notice and whether the Bar Council has any objection to the granting of the application.”
11. Sub-Rule (5) of rule 1 provided that—
“If the Bar Council prefers any objection to the admission of the applicant, such objection shall be laid before the High Court for hearing in accordance with the provisions of Sec. 9. Sub-sec. 2(d) of the Bar Councils Act.”
12. Sub-sec. (8) of rule 1 provided that—
“If the objection preferred by the Bar Council to the application is upheld, the application shall be deemed to have been refused.”
13. It is obvious from the above rules that if the Bar Council failed to file any objections within the period of fifteen days, the Bar Council was not bound to be heard. Similar rules were made by the Bar Council of Oudh.
14. This was the state of affairs in 1948 when the two Courts, at Allahabad and at Lucknow, were amalgamated by the United Provinces High Courts (Amalgamation) Order, 1948, which was passed under the provisions of Sec. 229 of the Government of India Act of 1935. The new High Court under the Amalgamation Order came into existence on the 26th of July, 1948. Para 3 of the Amalgamation Order provided that—
“As from the appointed day (namely, the 26th of July, 1948) the High Court in Allahabad and the Chief Court in Oudh shall be amalgamated and shall constitute one High Court by the name of the High Court of Judicature at Allahabad.”
15. Para. 8(1) of the said Order provided that—
“The new High Court shall have the like powers to approve, admit, enrol, remove and suspend advocates and attorneys, and to make rules with respect to advocates and attorneys, in the whole of the United Provinces as are, under the law in force immediately, before the appointed day, exercisable by either of the existing High Courts.”
16. Para. 17(c) provided that—
“references in any Indian Law to either of the existing High Courts by whatever name shall unless the context otherwise requires, be construed as references to the new High Court.”
17. One such Indian Law was the Bar Councils Act, and, therefore, the reference to the High Court of Judicature at Allahabad in Sec. 1(2) of the Bar Councils Act would be a reference to the new High Court of Judicature at Allahabad. This is not in dispute. But the question that has been contested at the Bar is whether the notification of the Governor-General in Council, dated the 1st of June, 1928, already quoted, made under Sec. 1(3) can make the provisions of Secs. 3 to 16 of the Bar Councils Act applicable to the new High Court. We shall deal with this question later.
18. In the Amalgamation Order, however, no provision was made with regard to the existing Bar Councils, one functioning at Allahabad and the other at Lucknow. The two Bar Councils, therefore, continued to act for some time till the term of office of the members of the Bar Councils expired. These members were to be elected for a term of three years. In the case of the Allahabad Bar Council their term expired in 1949. In the case of the Lucknow Bar Council, it had expired earlier. The State Government was advised that the old Bar Councils could be abolished and a new Bar Council established only by means of a fresh legislative enactment, and that a fresh notification applying Secs. 3 to 16 of the Bar Councils Act to the new High Court had to be made. Accordingly in 1950, after the new Constitution of India had come into force, the State Legislature enacted the Indian Bar Councils (Uttar Pradesh Amendment) Act, 1950 by which the original Bar Council Act was amended in respect of the constitution of the Bar Council for the new High Court the old Bar Councils were abolished and a new Bar Council was to be established by holding elections under the amended Act, and for the period that was to elapse before the duly elected new Bar Council came into existence, the Chief Justice of the new High Court was empowered to constitute an ad hoc Bar Council. The Uttar Pradesh Government issued a notification, under Sec. 1(3) of the Bar Councils Act as amended by the Indian Bar Councils (Uttar Pradesh Amendment) Act, 1950, on the 24th of May, 1952, applying Secs. 3 to 16 of the Bar Councils Act as amended by the Indian Bar Councils (Uttar Pradesh Amendment) Act, to the new High Court. The Chief Justice constituted an ad hoc Bar Council for the new High Court. A new roll of Advocates was prepared and some Advocates were freshly enrolled under the new rules framed under the Amended Act. The enrolment was stopped after the decision in Durgeshwar Dayal Seth v. The Secretary, Bar Council, Allahabad.
19. Learned counsel for both sides have proceeded before us on the assumption that the decision of the Bench declaring that the Indian Bar Councils (Uttar Pradesh Amendment) Act was ultra vires and the notification issued by the State Government on the 24th of May, 1952, under the amended Bar Councils Act applying Secs. 3 to 16 of the amended Bar Councils Act to the new High Court was void and of no effect. The position therefore now is that there is no legally constituted Bar Council for the new High Court in existence, and the question is whether the High Court has power to enrol Advocates in such a situation. We have first to consider whether Secs. 3 to 16 of the Bar Councils Act apply to the new High Court.
20. It is clear from the Amalgamation Order that this High Court is a new High Court in spite of the fact that it bears the old name of the High Court of Judicature at Allahabad. The name could have been different, and the mere fact that it is the same, does not mean that it is the old High Court of Judicature at Allahabad. Nevertheless, the new High Court is not entirely unconnected, with the old Courts. Paragraph 3 of the Amalgamation Order clearly states that the two old High Courts shall be ‘amalgamated and shall constitute one High Court’; so that the new High Court is an amalgamation of the two old High Courts. The Judges of the two Courts were continued to function as Judges of the New High Court; the officers and servants of the two courts were to be the officers and servants of the new court; the jurisdiction of the new High Court was to the same extent as the jurisdiction of both the old Courts; the Advocates entitled to practise in the two old Courts were entitled to practise in the new High Court and the new High Court was to have the same powers of enrolling, approving, admitting, removing and suspending Advocates as the two old Courts had, and the practice and procedure of the new Court was to be the same as was in force in the old High Court at Allahabad. The old rules and orders made by either of the existing High Courts continued in force and the proceedings pending before the old Courts were to be deemed to be transferred to the new High Court and were to continue as if they were proceedings instituted in the new High Court. It is, therefore, obvious that the new High Court is a continuation of the two old Courts and the intention was that the law applicable to the old High Courts should continue to apply to the new High Court with such modifications as may be necessary in the circumstances. One would, therefore think that the notification of the Governor-General in Council dated the 1st of June, 1928 in respect of the old High Court of Judicature at Allahabad continued to apply to the New High Court. It may be observed that the phrase “Indian Law” as mentioned in paragraph 17(c) of the Amalgamation order includes not only an Act of the Legislature, but also all rules, bye-laws and orders or notifications made thereunder, vide Sec. 3(29) of the General Clauses Act. The word “order” in that section would include a ‘notification’; because a notification is nothing but an order. This view is fortified by a decision of the Supreme Court in (A.I.R 1953 Supreme Court 318) in which a notification under the Bombay Excise Act was held to be included within the phrase ‘Indian Law’ by virtue of Sec. 3(29) of the General Clauses Act. But it was urged that under Sec. 1(3) of the Bar Councils Act, a date has to be mentioned in the notification from which Secs. 3 to 16 of the Act are to apply to a Court and that the notification of 1928 fixing the 1st of June, 1928 as the date, could not possibly apply to the new High Court which was not in existence on that date and for this reason the notification of the Governor-General already could not apply to the new High Court. This argument is fallacious. If the notification made under the Indian Bar Councils Act is an ‘Indian Law’ (as have been held that it is), then the notification is to apply to the new High Court with such modifications as would be necessary in the nature of things and circumstances. The date, 1st June, 1928, mentioned, in the notification could obviously not apply to the new High Court, but as the intention underlying the Amalgamation Order was that the law applicable to the old Courts was to be continued in the altered circumstances and was to be applicable to the new High Court, it is clear that the notification would apply to the new High Court as from the date the new High Court came into existence and the appointed date in connection with the new High Court would consequently for the date of the coming into existence of the new High Court. Reasonable effect must be given to a provision of law which is deemed to be applicable to a new state of affairs, and this is the only way in which effect can be given to the said notification of the Governor-General. We are, therefore, of opinion that Secs. 3 to 16 of the Bar Councils Act are already applicable to the new High Court and no new notification by the State Government is required and that consequently the new High Court can proceed to bring into existence a new Bar Council.
21. In Durgeshwar Dayal Seth v. The Secretary, Bar Council, Allahabad, after holding that Sec. 1(2) of the Bar Councils Act applied to the new High Court by virtue of paragraph 17(3) of the Amalgamation Order, the Bench (Desai and Mukerji, JJ.) observed that—
“It has not the effect of conferring a power upon the new High Court to do afresh everything that the old High Court was empowered to do. There existed the Bar Councils at Allahabad and at Lucknow, and so long as they were not dissolved another Bar Council could not be created. The principal Act did not contain any provision for the dissolution of a Bar Council. There cannot possibly be two Bar Councils for the same High Court under the Act. Therefore, even if it could be said that the clause empowered the new High Court to do over again all the acts that were to be done by the old High Court, the context requires that a new Bar Council cannot be created so long as the old Bar Councils exist.”
22. In Kumari Saroj Rawat v. The Secretary, Bar Council, High Court, Allahabad the Bench observed:
“The amalgamated Court of Allahabad and Oudh is a new High Court and is not covered by the High Court to which reference has been made in Sec. 1(2) of the Bar Councils Act of 1926. If the amalgamated High Court is a new High Court, as indeed it is under the Amalgamation Order of 1948, then it is not one of the High Courts which has been specifically named in Sec. 1(2) of the Bar Councils Act and, therefor, if the Bar Councils Act is to be made applicable to this new High Court then a notification in respect thereof has to be issued by the State Government extending the provisions of the Bar Councils Act to it. Further, if the provisions of the Bar Councils Act mentioned in sub-sec. (3) of Sec. 1 are to apply to this New High Court then the requisite notification has to be issued by the State Government and so long as these notifications do not issue, the provisions of the Bar Councils Act of 1926 cannot apply to the new High Court.”
23. With respect, we are unable to agree with these observations. It appears that the Bench did not consider the effect of para 17(c) of the Amalgamation Order read with Sec. 3(9) of the General Clauses Act, and the notification of the Governor-General in Council referred to above. The observation of the Bench in Saroj Rawat's case that Sec. 1(2) of the Bar Councils Act did not apply to the new High Court is contrary to what the same Bench had held in the earlier case of D.D Seth. Obviously it was under some mis-apprehension that the Bench made contradictory observations on this point in the two cases. Moreover it does not appear that the provisions of the part B laws Act, 1951 which makes Sec. 1(2) of the Bar Councils Act applicable to all High Courts in Parts A and B States, were brought to the notice of the Bench.
24. We agree that there cannot possibly be two Bar Councils for the same High Court under the Act, but we respectfully disagree with the observation that so long as Bar Councils at Allahabad and Lucknow were not dissolved another Bar Council cannot be created. The old Bar Councils were created under Sec. 3 of the Bar Councils Act, which provided—
“(1) For every High Court a Bar Council shall be constituted in the manner hereinafter provided.
(2) Every Bar Council so constituted shall be a body corporate having perpetual succession and a common seal with power to acquire and hold property, both movable and immovable, and to contract, and shall by the name of the Bar Council of the High Court for which it has been constituted sue and be sued.”
25. It is true that the Bar Councils Act does not contain any provision for the dissolution of a Bar Council created under the Act, but from the very fact that the Bar Council is constituted for a particular High Court, it follows necessarily that when the High Court itself ceases to exist, the Bar Council must also come to an end. It may continue to exist, as it is a body corporate, only for winding up its affairs after the High Court for which it is constituted cases to exist, but obviously it cannot carry out any function connected with the High Court which has ceased to exist, and since the old Bar Council cannot act for the new High Court for which it is not constituted a new Bar Council must be brought into existence for the new High Court if Secs. 3 to 16 of the Bar Councils Act apply to the new High Court.
26. We therefore hold that the Bar Councils Act in its entirety applies to the new High Court, and the old rules as to enrolment of Advocates which were made for the old Courts are still in force by virtue of paragraph 8 of the Amalgamation Order.
27. The next question is can the applicants be enrolled when there is no Bar Council for the new High Court in existence? It will be observed that the old rules, which are still in force, contain provisions to the effect that all applications for enrolment shall be notified to the Bar Council which shall have a right to object to the enrolment and that such Objections shall be heard by the court and then only will the applications for enrolment be decided. It has been contended by learned counsel for the applicants that these rules are merely directory and do not affect the power of the Court to enrol and that they merely prescribe a procedure which may or may not be followed by the Court. It is further contended that even if these provisions are mandatory, they are not conditions precedent for the exercise of the Courts jurisdiction of enrolling Advocates, and, therefore, since by the non-existence of the Bar Council they cannot be given effect to or complied with, the Court has power to waive those rules and to enrol the applicants without complying with them. We think that these contentions of the learned counsel are correct. The rules appear to us to be merely directory. It will be observed that the power to enrol Advocates is not conferred by these rules. That power was conferred upon the olid Court at Allahabad under paragraphs 7 and 8 of the Letters Patent and has been continued for the new High Court by paragraph 8 of the Amalgamation Order. The jurisdiction to enrol is one thing and the procedure to be followed for making the enrolment is quite different. The power of the Court to enrol, as preserved to the new Court by paragraph 8 of the Amalgamation Order is not dependent upon the observance of the rules and procedure for its exercise. From a consideration of the rules it is clear to us that the procedure prescribed for giving notice of the applications for enrolment to the Bar Council is merely directory. For, it is the Court which entertains the applications for enrolment; and it is the Court which makes the order of enrolment. The Bar Council may merely prefer an objection to the enrolment, but that may be accepted or may not be accepted by the Court. The jurisdiction of the Bar Council is merely advisory and it cannot be said that if the aforesaid procedure is not followed, the order of enrolment by the Court is rendered nugatory.
28. We are further of opinion that even if the rules are mandatory they are not conditions precedent to the exercise of jurisdiction by the court, and since it is impossible to comply with them because there is no Bar Council in existence, their performance can be dispensed with. As has been observed in Maxwell on the Interpretations of Statutes. Xth Edition, at page 385—
“Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim, that lex non cogit ad impossible out inutilia. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible.”
29. In Montreal Streat Railway Company v. Normandin 17 A.C 170, the Privy Council observed:
“When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the Validity of the acts done.”
30. In the Queen v. The Justices of Leicestershire L.R 15 Q.B 88. notice of an appeal was required to be served on the respondent, but it could not be served because of his death. It has held that the appeal could still be heard because the performance of the condition imposed by law had by the act of God become impossible of performance.
31. On the same principle a Bench of this Court held In the matter of a refugee Advocate5 that the requirement regarding the recommendation of the District Judge in the 7th proviso to Rule 1, made under Sec. 9 of the Bar Councils Act could be waived when it was not possible to get the recommendation of the District Judge.
32. The enrolment of the applicants will not cause any real injustice to any body. On the other hand, injustice or inconvenience to them will be caused if their applications are not considered so long as a Bar Council does not come into existence. We are, therefore, of opinion that when the Bar Council is not in existence, the rules requiring reference to the Bar Council may be dispensed with in considering the applicants' applications for enrolment.
33. If we were to assume that Secs. 3 to 16 of the Bar Councils Act do not apply to the new High Court, then the case for the applicants becomes stronger, because in that case the power of the High Court for enrolment of Advocates under paragraph 8 of the Amalgamation Order read with paragraphs 7 and 8 of the Letters Patent is unfettered by any rules made under the Bar Councils Act and their applications can be considered by the High Court without reference to the or Council at all.
34. In either view of the matter and in the special circumstances of this case, the applications for enrolment may be considered by this Court without reference to the Bar Council. We, therefore, allow this application and direct that the applicants' application for enrolment as Advocates be considered by the Court on their merits.
35. Application allowed.
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