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Attorney(S)
  • S. Malhotra
  • D.P. Sud
Judges
  • R.S Pathak, C.J
  • C.R Thakur, J.
Acts
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Attorney(S)
  • S. Malhotra
  • D.P. Sud
Judges
  • R.S Pathak, C.J
  • C.R Thakur, J.
Acts
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Smart Summary

Structured Summary of the Opinion (R.S. Pathak, C.J.)

Factual and Procedural Background

The petitioner challenged, by a petition under Article 226 of the Constitution, an order of the Bar Council of India (BCI) removing his name from the roll of Advocates maintained by the Bar Council of Delhi.

Relevant factual sequence (as stated in the opinion):

  • The petitioner obtained an LL.B. degree as a private (non‑collegiate) candidate from Punjab University in 1968.
  • He applied for enrolment as an advocate to the Bar Council of Punjab & Haryana on 17 November 1970 under Section 24 of the Advocates Act, 1961; that Council doubted the validity of his degree and referred the question to the Bar Council of India.
  • On 19 March 1971 the petitioner sought to withdraw his application from the Bar Council of Punjab & Haryana, but there is no record that the withdrawal was allowed.
  • The petitioner applied to the Bar Council of Delhi on 31 March 1971 and was enrolled on 5 April 1971.
  • On 15 April 1971 the Bar Council of Punjab & Haryana refused enrolment on the ground that the petitioner's degree did not meet the statutory requirement of a minimum two‑year law course after graduation and was a non‑collegiate degree.
  • The Bar Council of Delhi, on learning of those earlier proceedings, asked the petitioner in May 1971 why he had not disclosed the Punjab & Haryana proceedings and that his law degree was that of a private candidate. The petitioner's explanation was not accepted and the matter was referred to the Bar Council of India under Section 26(1) of the Advocates Act.
  • On 30 April 1972 the Bar Council of India found that the petitioner had suppressed material facts when applying to the Bar Council of Delhi and, invoking the proviso to Section 26(1), removed his name from the roll.
  • Respondents raised a preliminary objection before the High Court: that the Himachal Pradesh High Court had no territorial jurisdiction to entertain the writ since the Bar Council of Delhi and the Bar Council of India sit outside its territorial limits and no part of the cause of action arose within Himachal Pradesh.
  • The High Court upheld the preliminary objection and found the petition not maintainable in that Court, but directed that the petition be returned to the petitioner for presentation to the proper Court (respondents having no objection to such return), although the Court noted some doubt whether such return is permissible for a petition under Article 226.

Legal Issues Presented

  1. Whether the High Court had jurisdiction under Article 226(1) and Article 226(1‑A) of the Constitution to entertain a writ petition challenging an order of the Bar Council of India and the Bar Council of Delhi when those authorities are situated outside the territorial jurisdiction of the High Court.
  2. Whether the service of a copy of the impugned order on the petitioner at Simla (Himachal Pradesh) or the alleged deprivation of the right to practise in Himachal Pradesh constituted a cause of action arising, wholly or in part, within the territorial jurisdiction of the Himachal Pradesh High Court.
  3. Whether the petitioner had, by virtue of his entry on the State roll of the Bar Council of Delhi, acquired a right to practise in Himachal Pradesh under Sections 19, 20 and 30 of the Advocates Act by reason of entry in the common roll maintained by the Bar Council of India.

Arguments of the Parties

Respondents' Arguments

  • The High Court has no jurisdiction under Article 226(1) because the Bar Council of Delhi and the Bar Council of India sit outside the territorial limits of the Court and the impugned order was passed by bodies outside that territory.
  • There is no part of the cause of action that arises within the territorial jurisdiction of the Himachal Pradesh High Court.

Petitioner's Arguments

  • Service of a copy of the impugned order on the petitioner at Simla constituted part of the cause of action within the territorial jurisdiction of Himachal Pradesh, because it was argued the order became effective only upon such service.
  • The petitioner contended that removal from the roll had deprived him of the right to practise in Himachal Pradesh because enrolment on the State roll of Delhi entitles an advocate to be entered on the common roll and thereby to practise throughout India under Section 30.
  • The petitioner placed several precedents before the Court to show that in analogous situations a cause of action arose within the territorial jurisdiction of the forum where consequences were felt or where acts took effect.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78 Definition of "cause of action": it comprises every fact which would be necessary for the plaintiff to prove to obtain relief (i.e., facts essential for obtaining relief). The Court invoked this definition to reject the petitioner's argument that mere service of a copy at Simla constituted part of the cause of action; the Court held only those facts necessary to obtain relief count and that the order was made in the petitioner's presence in Delhi.
Bachhittar Singh v. State of Punjab, AIR 1963 SC 395 Where an order is that of the State Government, it amounts to a decision only when communicated to the person affected, because the executive may alter its decision before communication. The Court distinguished that principle from the present case: it observed that governmental orders may be provisional until communicated, but a Bar Council order made in the presence of the person is final on pronouncement and not dependent on subsequent service at another place.
State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 Reinforces that an appointing authority's order (e.g., of dismissal) not communicated may theoretically be modified before communication, differing from judicial pronouncements. The Court relied on the same line of reasoning to show the distinction between executive orders and the Bar Council's order pronounced in person and taking effect immediately.
Harcharan Lal v. Director, Indian Institute of Sugarcane Research, Lucknow, AIR 1964 All 379 Where consequences of an order were felt within the territorial limits of a High Court (Uttar Pradesh), that Court could entertain a writ under Article 226(1‑A). The Court noted the case but found its facts (and the principle it illustrates) distinguishable and not helpful to the petitioner because the present order took effect at Delhi.
Damomal Kausomal Raisinghani v. Union of India, AIR 1967 Bom 355 Even though an order was made in Delhi, its consequences at Ulhasnagar (Thana) meant proceedings would be taken within the Bombay High Court's territorial jurisdiction. The Court observed the case is factually different and does not assist the petitioner on the facts of the present matter.
Gopal Vinayak Godse v. The Union of India, AIR 1971 Bom 56 (SB) Where seizure occurred in Poona in pursuance of an order made by Delhi Administration, the cause of action arose where the seizure took place. The Court treated this as another factual illustration where the locus of the operative act (seizure) determined jurisdiction; it found that fact pattern distinguishable from the present case.
Serajuddin and Co. v. State of Orissa, AIR 1971 Cal 414 Orders served on the petitioner at Calcutta and requiring action at his Calcutta office gave rise to a cause of action in Calcutta. The Court noted the factual basis for Calcutta High Court's jurisdiction in that case, and held it did not correspond to the facts before this Court.
S.S. Light Rly. Co. Ltd. v. The Industrial Tribunal (Central), AIR 1971 Delhi 69 Where hearings occurred partly in Delhi, the award published at New Delhi and the relevant activities took place within the Delhi High Court's territory, a writ lay before that High Court. The Court again recorded that the decision turns on facts and that the cited authorities show different fact situations; they do not support the petitioner's claim of territorial jurisdiction in Himachal Pradesh.

Court's Reasoning and Analysis

The Court's analysis proceeded in distinct legal steps, applying constitutional provisions and statutory scheme as manifested in the record:

  1. Territorial scope of Article 226(1): The Court observed that Article 226(1) empowers a High Court to issue writs to persons or authorities "within the territories in relation to which it exercises jurisdiction." Since both the Bar Council of Delhi and the Bar Council of India sit outside the territorial jurisdiction of the Himachal Pradesh High Court, the Court concluded it had no power under Article 226(1) to grant relief against those bodies.
  2. Article 226(1‑A) and the "cause of action" test: The Court examined Article 226(1‑A), which allows writs if the cause of action, wholly or in part, arises within the Court's territory. The Court emphasized the legal meaning of "cause of action" — comprising facts necessary for the plaintiff to prove to obtain relief — and relied on the Privy Council's definition (Mohammad Khalil Khan v. Mahbub Ali Mian) to assess whether any essential fact arose in Himachal Pradesh.
  3. Effect of service at Simla: The petitioner argued that service of a copy at Simla meant a part of the cause of action arose there because the order became effective only upon such service. The Court rejected this: the copy of the impugned order annexed to the petition showed it was passed in the petitioner's presence on 30 April 1972 in Delhi (his presence was noted). The Court held the order was communicated to him when pronounced and took effect at that time in Delhi; subsequent service at Simla did not create part of the cause of action.
  4. Distinction from executive orders: The Court considered precedents (Bachhittar Singh; State of Punjab v. Amar Singh Harika) dealing with executive orders where communication is essential because the executive authority could alter its decision before communication. The Court distinguished those decisions: a Bar Council order made in the person's presence under the proviso to Section 26(1) of the Advocates Act is final on pronouncement and not provisional pending later communication.
  5. Finality of Bar Council removal order: The Court explained that an order by the Bar Council under the proviso to Section 26(1) is final unless reviewed by the Bar Council in the exercise of a statutory power or corrected for clerical error in exercise of inherent jurisdiction. Therefore, the removal order took effect when pronounced in Delhi and did not depend on later acts in Himachal Pradesh.
  6. Right to practise and the common roll (Sections 19, 20, 30): The Court analyzed the petitioner's contention that removal deprived him of the right to practise in Himachal Pradesh by reference to the Advocates Act's scheme. Section 19 requires State Bar Councils to send authenticated rolls and alterations to the Bar Council of India; Section 20 directs the Bar Council of India to prepare and maintain a common roll comprising entries of all State rolls; Section 30 entitles only those whose names are entered in the common roll to practise throughout the territories covered by the Act. The Court held the petitioner had to establish that his name was in the common roll to claim a right to practise in Himachal Pradesh; on the material before the Court there was no suggestion his name was ever entered in the common roll, so he could not assert that right.
  7. Treatment of other authorities relied upon by the petitioner: The Court reviewed a series of decisions cited by the petitioner and explained that each turned on distinct facts (e.g., operative acts occurring within the forum, seizures, local consequences, hearings held locally). The Court found those cases inapposite on the facts at hand and insufficient to establish territorial jurisdiction for the Himachal Pradesh High Court.
  8. Disposition: Applying these legal principles to the facts, the Court concluded the cause of action did not arise, wholly or in part, within the territorial jurisdiction of the Himachal Pradesh High Court and therefore the petition was not maintainable there.

Holding and Implications

Holding:

The writ petition is not maintainable in the Himachal Pradesh High Court for want of territorial jurisdiction.

Implications and immediate effects:

  • The Court declined to grant relief under Article 226 against the Bar Council of Delhi or the Bar Council of India because those authorities sit outside the Court's territorial jurisdiction and no part of the cause of action arose in Himachal Pradesh.
  • The Court rejected the petitioner's contention that service of a copy at Simla or a claimed right to practise in Himachal Pradesh (absent entry in the common roll) created territorial jurisdiction.
  • The petition was ordered to be returned to the petitioner for presentation to the proper Court (the Court noted some doubt whether such return is strictly permissible under Article 226 procedure but directed return because the respondents had no objection).
  • No broader legal precedent was announced beyond applying established principles on territorial jurisdiction, cause of action, and the statutory scheme for the common roll of advocates; the decision rests on the facts and the application of those existing principles.

Order: Accordingly, the petition was found not maintainable in the Himachal Pradesh High Court and was directed to be returned to the petitioner for presentation to the appropriate forum.

Show full summary ...

    S.S Mittal v. Bar Council Of India And Others Opposite Parties.

    R.S Pathak, C.J:— The petitioner applies under Article 226 of the Constitution for quashing an order of the Bar Council of India removing his name from the roll of Advocates maintained by the Bar Council of Delhi.

    2. The petitioner, who at one time was a member of the judicial service, is said to have obtained his LL.B Degree as a private candidate from the Punjab University in the year 1968 and after resigning from judicial service he applied on November 17, 1970 to the Bar Council of Punjab and Haryana at Chandigarh for enrolment as an Advocate under Section 24 of the Advocates Act, 1961. The Bar Council of Punjab and Haryana was doubtful whether the law degree obtained by the petitioner could serve to qualify him for enrolment and it referred the question to the Bar Council of India for its opinion. The petitioner now applied on March 19, 1971 to the Bar Council of Punjab and Haryana for withdrawing his application but there is nothing to show that any order was passed allowing the application to be withdrawn. On March 31, 1971 he applied to the Bar Council of Delhi for enrolment as an Advocate. The application was allowed and the petitioner was enrolled on April 5, 1971. Meanwhile, on April 15, 1971, the Bar Council of Punjab and Haryana made an order refusing to enrol him as an Advocate on the ground that as he had not obtained the law degree after undergoing a course of study in law for a minimum period of 2 years after graduation and has obtained it as a non-collegiate candidate he was not eligible for enrolment as an Advocate. Thereafter, the Bar Council of Delhi came to know of the proceedings before the Bar Council of Punjab and Haryana and in May 1971, it wrote to the petitioner to explain why at the time of applying to it for enrolment he had not disclosed the fact that his enrolment had been refused by the Bar Council of Punjab and Haryana and that he had passed the Law Examination in 1968 as a private candidate. The petitioner submitted his explanation but it was not accepted. The case was referred to the Bar Council of India under Section 26(1) of the Advocates Act. On April 30, 1972, the Bar Council of India held that the petitioner had been guilty of suppressing material facts at the time of applying for enrolment to the Bar Council of Delhi inasmuch as he did not disclose that he had made an earlier application to the Bar Council of Punjab and Haryana, which was about to be rejected, and that his law degree was one which could not be recognised. Accordingly, acting under the proviso to Section 26(1) of the Advocates Act it removed the name of the petitioner from the roll. Shri D.P Sud, learned Counsel for the respondents, has raised a preliminary objection. He urges that this Court has no jurisdiction to entertain this writ petition inasmuch as the Bar Council of Delhi and the Bar Council of India, which passed the impugned order, is situated outside the territorial jurisdiction of this Court and no part of the cause of action arises within that territorial jurisdiction. It seems to us that objection has force and must be upheld.

    3. Both the Bar Council of Delhi and the Bar Council of India have their seat outside the territorial jurisdiction of this Court. The impugned proceedings were taken by them, and the impugned order removing the name of the petitioner from the roll of Advocates was passed by the Bar Council of India. Article 226(1) of the Constitution empowers the High Court to issue directions, order or writs to any person or authority within the territories in relation to which it exercises jurisdiction. It has no power under Article 226(1) to do so if the person or authority is situated outside those territories. Therefore, this Court has no power under Article 226(1) to grant relief against the Bar Council of Delhi or the Bar Council of India.

    4. Article 226(1-A) empowers the High Court to issue directions, orders or writs if the cause of action, wholly or in part, arises within the territories in relation to which it exercises jurisdiction. There is nothing to show that any part of the cause of action arises within the territories of Himachal Pradesh. Learned counsel for the petitioner points out that a copy of the order was served on the petitioner at Simla and therefore, it is urged, the cause of action arises within the jurisdiction of this Court. It is said that the order became effective only upon service of the copy on the petitioner and therefore, this service constituted part of the cause of action. In our opinion, the mere circumstance that a copy of the order was served on the petitioner at Simla does not lead to the inference that a part of the cause of action arises there. The cause of action includes only those facts which are essential for obtaining relief. As was pointed out by the Privy Council some years ago, it means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78. It is necessary for the petitioner to establish that a copy of the impugned order was served on him before he can obtain relief? Was he affected by the order only after a copy of it was served on him, or did the order come into effect as soon as it was passed? It is clear from the copy of the impugned order annexed to the writ petition that it was passed in the presence of the petitioner on April 30, 1972. His presence has been noted at the top of the order. There is no averment in the writ petition that the order was not passed in his presence. In the circumstances, we must take it that the order was communicated to him when it was made on April, 30, 1972. The order took effect as soon as it was passed on that date. It removed the name of the petitioner from the roll of Advocates, and it did that as soon as it was made. To accomplish that end, it was not necessary that a copy of the order should also have been served on the petitioner. The order was a complete and final order, and after pronouncing it the Bar Council of India had no power to make a different order. An order made by the Bar Council under the Proviso to Section 26(1) of the Advocates Act is final unless it is reviewed by the Bar Council in the exercise of some statutory power conferred upon it in that behalf, or a clerical or some such error is corrected in the exercise of the inherent jurisdiction of the Bar Council.

    5. In Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, on which the petitioner relies, the order in question was an order of the State Government and it was laid down by the Supreme Court that in order to amount to decision of the Government it must be communicated to the person concerned, and that was for the reason that it was always open to the Government, before such communication to make a different order. The Supreme Court raid:

    “Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore till its communication, the order cannot be regarded as anything more than provisional in character.”

    6. Proceeding on similar reasoning, the Supreme Court observed in State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313:

    “If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court the authority may change its mind and decide to modify that order.”

    7. And it referred to the considerations peculiar to orders of dismissal which led it to take that view.

    8. In the present case, the order was made by the Bar Council of India in the presence of the petitioner at Delhi. It was, therefore, communicated to him at Delhi. It took effect at Delhi, and its taking effect was not postponed to the moment when a copy of the order was served on the petitioner at Simla.

    9. It is next urged that the impugned order has deprived the petitioner of his right to practise in Himachal Pradesh and therefore the cause of action can be said to arise partly within the jurisdiction of this Court. The right to practise in Himachal Pradesh is based on the submission that by reason of the name of the petitioner being entered on the roll of Advocates maintained by the Bar Council of Delhi, the Petitioner was entitled to have his name entered on the common roll maintained by the Bar Council of India under Section 20 of that Act, and on that he was entitled as of right to practise throughout the territories of India, including the State of Himachal Pradesh, by virtue of Section 30 of the Act. The argument is that once a person is entered on the State roll, that gives him a right to be enrolled on the common roll and therefore to practise anywhere in India. The contention cannot be accepted. Section 19 of the Advocates Act requires every State Bar Council to send to the Bar Council of India an authenticated copy of the roll of Advocates prepared by it for the first time under that Act and thereafter to communicate to the Bar Council of India all alterations in, and additions to, in such roll as soon as the same has been made. Section 20 provides:

    “Common roll of advocates:

    (i) The Bar Council of India shall prepare and maintain a common roll of advocates which shall comprise the entries made in all State rolls……….”

    10. Section 30 provides:

    “Right of advocates to practise:

    Subject to the provisions of this Act, every Advocate whose name is entered in the common roll shall be entitled as of right to practise throughout the territories to which this Act extends…….”

    11. Before the petitioner can invoke Section 30 in support of his right to practise in Himachal Pradesh, he must establish that his name is entered in the common roll. The right to have one's name entered in the common roll and the making of an entry in the common roll in recognition of that right are two different things. The gulf between the two is bridged when the State Bar Council, acting under Section 19, conveys to the Bar Council of India the addition made to the roll maintained by it and the Bar Council of India then, acting under Section 20, enters the name in the common roll, the physical existence of the entry in the common roll gives an Advocate the right to practise anywhere in India. On the material before us, there is nothing to suggest that the name of the petitioner was ever entered in the common roll. Therefore, he is not entitled to maintain that he had a right to practise in Himachal Pradesh.

    12. Learned counsel for the petitioner has placed a number of decisions before us in support of the contention that the cause of action arises wholly or in part within the jurisdiction of this Court. In our opinion, those cases do not help the petitioner.

    13. In Harcharan Lal v. Director, Indian Institute of Sugarcane Research, Lucknow, AIR 1964 All 379, the petitioner was a truck driver serving at the Central Sugarcane Station, Lucknow. His services were terminated by the Director, Indian Institute of Sugarcane Research, Lucknow. An appeal filed by the petitioner was dismissed by the Government of India, Ministry of Food and Agriculture (Department of Agriculture), New Delhi. The Allahabad High Court rejected the contention that because the original order terminating the petitioner's services could be said to have merged in the appellate order of an authority outside the territorial limits of that Court, no writ petition would lie to it. It referred to Article 226(1-A) of the Constitution and held that the cause of action arose within Uttar Pradesh. This case, it will be noticed, falls within the principle laid down in Bachhittar Singh, AIR 1963 SC 395 (supra).

    14. The next case relied upon is Damomal Kausomal Raisinghani v. Union of India, AIR 1967 Bom 355. That was a case where although the order was made by a governmental authority at Delhi it had its consequence at Ulhasnagar situated in the District of Thana of Maharashtra where the petitioner resided, and it was observed that the proceedings contemplated against the petitioner in consequence of the impugned order would be taken by officers located within the territorial jurisdiction of the Bombay High Court.

    15. Reference has also been made to Gopal Vinayak Godse v. The Union of India, AIR 1971 Bom 56 (SB). In that case the cause of action was furnished by the seizure of the books in Poona, even though the seizure was effected in pursuance of the order of forfeiture passed by Delhi Administration. Clearly a writ petition challenging the seizure could be maintained before the Bombay High Court.

    16. In Serajuddin and Co. v. State of Orissa, AIR 1971 Cal 414, which has also been placed before us, the orders impugned by the petitioner were served on him at Calcutta, but they were orders requiring him to stop working and to quit possession of certain mines. It appears from the judgment of the Calcutta High Court that the petitioner maintained an office at Calcutta from which he directed the activities concerning the mines. The impugned orders required him to do or to forbear from doing something at his Calcutta office, and therefore, it is apparent that the cause of action arose at calcutta. The Calcutta High Court, therefore, held that it had jurisdiction in that matter.

    17. Finally, reliance has been placed on S.S Light Rly. Co. Ltd. v. The Industrial Tribunal (Central), AIR 1971 Delhi 69. The impugned award was made by the Industrial Tribunal, Lucknow, but some of the hearings of the Tribunal took place in Delhi and the award was published at New Delhi. Further, the petitioner and the workmen who were affected by the award were carrying on their activities, to which the award was related, at Shahadra within the jurisdiction of the Delhi High Court. Upon those facte, the Delhi High Court held that a writ petition against the impugned order would lie to it.

    18. In our opinion, upon the facts of the present case this petition is not maintainable in this Court. Learned counsel for the petitioner prays that in case this Court finds that the petition is not maintainable here it may be returned to the petitioner for presentation to the proper Court. We have some doubt whether this can be done in the case of a petition under Article 226 of the Constitution, but as learned counsel for the respondents states that he has no objection to such an order, we direct the petition be returned to the petitioner for presentation to the proper Court.

    19. Order accordingly.

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    Comments

    S.S Mittal v. Bar Council Of India And Others Opposite Parties.
    (Sep 8, 1972)