Citation Codes

Equivalent Citations

citation codes

Case Number

1976 of 1976

Advocates

K.Rama Kumar

Judges

Chief Justice Mr.V.P. Gopalan Nambiyar
Mr. Justice K.K. Narendran

Acts

provisions of sub - clause (4) of s. 55
clauses act, 1897, S. 13

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner filed a writ of quo warranto challenging the appointment of an additional Advocate‑General for the State (the 2nd respondent). The challenged appointment was for a three‑year term from 1 January 1976, effected by an order dated 26‑12‑1975 (ext. P1). On the same date another order (ext. P2) extended the term of the existing Advocate‑General for a further three years from 1 January 1976. Both appointments were made under Article 165(1) of the Constitution of India.

The petition was admitted by a learned judge on 29‑3‑1976 and notice was ordered. The admitting judge expressed the view that, given the importance of the question, the petition should be heard by a Division Bench; the judge who admitted the petition did not notice an earlier ruling in Antony v. State of Kerala (1975 KLT 678).

Legal Issues Presented

Whether the 2nd respondent holds title to the office of Additional Advocate‑General or is a usurper of that office (i.e., whether a writ of quo warranto should issue).
Whether Article 165 permits the appointment of an additional Advocate‑General (i.e., whether the singular term "the Advocate‑General" in Article 165 precludes multiple incumbents).
Whether the interpretative rule under Article 367 read with Section 13 of the General Clauses Act, 1897 (singular including the plural) applies so as to permit plural appointments, unless there is repugnancy in subject or context.
Whether any pleaded mala fides on the part of the appointing authority justified relief.

Arguments of the Parties

Petitioner's Arguments

A duplication of the office of Advocate‑General (appointment of more than one person) would provoke serious conflicts in discharging important constitutional and statutory responsibilities and therefore a plurality was not intended by the framers.
Practical problems identified included: who would address the Legislative Assembly under Article 177; who would be ex‑officio chairman of the Bar Council under the Bar Councils Act (as it then stood); who would exercise specific statutory functions such as entering nolle prosequi under the Criminal Procedure Code, protecting public charities under Section 92 CPC, and discharging contempt‑related responsibilities.
The petitioner relied on the nature of the Advocate‑General's functions (Article 177, Bar Councils Act s.8(4) as it then stood, Advocates Act s.23, CPC ss.91/92, CrPC ss.194/333/495, Contempt of Courts Act 1971) to show incompatibility of plurality.
Case law invoked by the petitioner included Balakrishna Iyer v. Krishnan (1968 KLT 8) to argue that expressions in statutes may not include additional incumbents in certain contexts.

Respondent / State's Arguments

The State relied on Article 367(1) of the Constitution and Section 13 of the General Clauses Act, 1897 to argue that the singular expression may include the plural unless there is repugnancy in subject or context; thus, a plurality of Advocate‑Generals is permissible.
The State placed reliance on an earlier ruling in Antony v. State of Kerala (1975 KLT 678), where a learned judge dismissed a similar quo warranto challenge and observed that Article 165 did not bar appointment of an additional Advocate‑General, citing Article 367 and Section 13.
The State pointed to a government notification (No. 368/BI/76/Law dated 20‑8‑1976) amending earlier rules to add the term "additional Advocate‑General" and to define duties and functions for the additional office, including an enabling provision allowing the additional Advocate‑General to discharge constitutional and statutory functions (particularly during the Advocate‑General's absence) subject to allocation of work.
The government pleader cited Privy Council authority (Sin Poh Amalgamated (HK) Ltd v. Attorney‑General) and related authorities to apply the test for "contrary intention" under interpretation statutes and argued that there was no sufficient contrary intention to exclude plural appointments.
The State also referenced historical evolution (deletion of sub‑clause (4) of Section 55 of the Government of India Act) and administrative practice in at least two other States (Rajasthan and Jammu & Kashmir) where additional Advocate‑Generals had functioned without challenge.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Antony v. State of Kerala (1975 KLT 678)	Held (by a learned judge) that Article 165 did not bar appointment of an additional Advocate‑General; cited Article 367 and Section 13 of the General Clauses Act.	The opinion records that this earlier ruling dismissed a similar writ petition and reached the view that Article 165 did not preclude an additional appointment. The judge who admitted the present petition had not noticed this decision.
Balakrishna Iyer v. Krishnan (1968 KLT 8)	Decided that the expression "subordinate judge" would not include an "additional subordinate judge" where the statute made the office function as a persona designata; context produced a contrary result.	The court treated this decision as distinguishable: it arose where the statutory context showed that allowing an additional incumbent would create manifest incongruities; hence it did not support a general prohibition of additional incumbents under Article 165.
Law Society v. United Service Bureau Ltd ((1934) 1 K.B. 343)	Held that in the criminal context, the word "person" in the singular could not be read to include "persons" in the plural for the purpose of imposing criminal liability under the Solicitors Act, 1932.	The court considered this authority inapposite: it rested on the reluctance to expand criminal liability by reading singular as plural where the context did not clearly allow such an expansion.
Sin Poh Amalgamated (HK) Ltd v. Attorney‑General ((1965) 1 All E.R. 225)	Lord Pearce articulated a test for finding "contrary intention" under an interpretation ordinance (similar to the General Clauses Act): the plural should cover the singular except where the context shows the legislature would have rejected such an amendment.	The court quoted Lord Pearce's formulation and applied the test in the context of Article 165 and the General Clauses Act; it found no convincing evidence of a contrary intention sufficient to exclude the operation of the interpretative provision.
Blue Metal Industries v. R. W. Dilley ((1969) 3 All E.R. 437)	Followed the principle in Sin Poh regarding interpretation and contrary intention under interpretation legislation.	The court noted that Blue Metal followed the Sin Poh principle; it treated these authorities as supportive of reading the singular to include the plural unless context shows otherwise.

Court's Reasoning and Analysis

The court separated the question of policy from legality: while acknowledging the policy and practical objections to duplicating a responsible constitutional office, the court confined itself to the legal question whether the appointment was valid and whether the 2nd respondent was a usurper.

The court analyzed Article 165 structurally: clause (1) deals with appointment, clause (2) with duties and functions, and clause (3) with duration of office. It relied on Article 367(1) of the Constitution, which makes the General Clauses Act, 1897 applicable for interpretation unless the context otherwise requires. Section 13 of the General Clauses Act (words in singular include the plural, unless repugnant in subject or context) was central to the interpretative exercise.

The court asked whether there was anything "repugnant in the subject or context" that would prevent construing the singular expression to include the plural. It acknowledged that plurality might provoke conflicts in practice but regarded these as not insurmountable; potential conflicts could be resolved by human adjustment, conventions, or by rules/instructions.

The court examined the government notification (No. 368/BI/76/Law dated 20‑8‑1976) amending the rules relating to the Advocate‑General to include "additional Advocate‑General" and to define duties and functions. Key features noted:

Rule 2 defined duties of the Advocate‑General.
Rule 3 defined duties of the Additional Advocate‑General, permitting the additional incumbent to perform the same duties as items (i) to (xviii) of Rule 2 subject to allocation by the Advocate‑General, and expressly enabling the additional Advocate‑General to discharge constitutional and legal functions of the Advocate‑General (notably as an enabling provision to be exercised in the Advocate‑General's temporary absence or non‑availability).

On this statutory and regulatory material the court concluded that the rules provided a workable demarcation of responsibilities and an enabling power for the additional Advocate‑General which was not antagonistic to the Advocate‑General's powers. Consequently, the court was unable to find any clash or conflict of duties that would compel a conclusion that Article 165 precluded a duality of the office.

The court considered comparative/supporting facts: it was informed that additional Advocate‑Generals had operated in at least Rajasthan and Jammu & Kashmir without challenge; although counsel could not supply exhaustive documentary proof of the source of those appointments, the court took note of the disclosed facts.

The court distinguished authorities relied on by the petitioner (Balakrishna Iyer and Law Society) on grounds that their contexts or principles did not apply to the present interpretative question. It accepted the Sin Poh formulation of the "contrary intention" test but observed that speculative historical arguments (how the legislature would have reacted to a proposal for plural Advocate‑Generals) did not provide a decisive answer against permitting plural appointments.

The court also rejected the petitioner's mala fides plea as inadequately pleaded and controverted by the counter affidavit.

Holding and Implications

Holding: The court concluded that the petitioner had not established that the 2nd respondent was a usurper of the office of Additional Advocate‑General. The petition for a writ of quo warranto was dismissed.

Disposition: Writ petition dismissed; no order as to costs.

Immediate Consequences for the Parties

The 2nd respondent's appointment as Additional Advocate‑General was upheld; the court found no ground to remove the 2nd respondent from office on the petitioner's challenge.
The petitioner received no relief and the writ of quo warranto was refused.
No costs order was made against the petitioner.

Broader Legal Implications Noted by the Court

The court's reasoning endorses the application of Article 367 and Section 13 of the General Clauses Act to interpret a constitutional provision expressed in the singular as capable of including the plural unless repugnant in subject or context. The court found the rule amendments and enabling provisions sufficient to permit a harmonious functioning of two incumbents; thus, on the facts and materials before it, a duplication of the office was held legally permissible. The opinion does not expressly state that it is laying down a rule of wide precedential effect beyond this dispute; the decision is presented as resolving the legal issue in this case on the statutory and regulatory materials and the authorities discussed.

This summary is based exclusively on the information contained in the provided opinion. No facts or conclusions beyond those expressly stated in the opinion have been added.

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Padmanabhan v. State Of Kerala

1. The petitioner seeks a writ of quo - warranto, Challenging the appointment of an additional advocate - general for this state, For a term of three years from 1st january 1976, By ext. P1 order dated 26121975. By ext. P2 order of the same date, The term of office of the present incumbent as the advocate - general of the state was extended for a further period of three years, From 1st january, 1976. Both the appointments were under art. 165 (1) of the constitution of india. It is not for us to concern ourselves with the policy underlying these appointments or even with the propriety of duplicating the office of advocate - general. A writ of quo - warranto having been sought for, We propose to address ourselves only to the question whether the 2nd respondent has title to the office of the additional advocate - general or is a usurper of the said office.

2. The writ petition was admitted by a learned judge on 29 31976 and notice was ordered to the respondents. On the same date on which notice was ordered, And before the same had been served on the other side, The learned judge recorded his view that in view of the importance of the question involved, The petition should be heard by a division bench. There was a ruling of a learned judge of this court in antony v. State of kerala (1975 klt. 678), Where a writ of quo warranto was prayed for against the re - designation of the post of the senior government pleader as additional advocate - general. The contention of the state in that writ petition, As seen from the judgment, Was that even after his appointment as additional advocate - general, The 2nd respondent continued to be a law officer whose conditions of service, Duties and remuneration governed are by the rules (go; prescribed for the purpose, And that the additional advocate - general did not have any of the powers, Duties or privileges of the advocate - general. It was the state's contention that even after the said appointment of the 2nd respondent, There was only one advocate - general for the state. The learned judge, In dismissing the writ petition, Observed that art. 165 of the constitution, Did not bar the appointment of an additional advocate - general, And cited art. 367 of the constitution and s. 13 of the general clauses act, In support of the said conclusion. The learned judge, Who admitted this writ petition and expressed the view that it may be heard by a division bench, Did not notice the judgment in antony v. State of kerala (1975 klt. 678).

3. Art. 165 of the constitution of india reads as follows: "165. Advocate - general for the state.

(1) the governor of each state shall appoint a person who is qualified to be appointed a judge of a high court to be advocate - general for the state.

(2) it shall be the duty of the advocate - general to give advice to the government of the state upon such legal matters, And to perform such other duties of a legal character, As may from time to time be referred or assigned to him by the governor, And to discharge the functions, Conferred on him by or under this constitution or any other law for the time being in force.

(3) the advocate - general shall hold office during the pleasure of the governor, And shall receive such remuneration as the governor may determine. "

clause (1) deals with the appointment to the office; clause (2) provides for the duties and functions of the advocate - general; and clause (3) provides for the duration of bis office. One important constitutional function or privilege of the advocate - general, Provided by art. 177 of the constitution, Is his right to speak, And otherwise take part in, The proceedings of the legislative assembly of the state, Or, In states having a legislative council, In both houses, But he shall have no right to vote. Regarding his duties and functions under any other law for the time being in force, Counsel for the petitioner stressed the following: under s. 8 (4) of the bar councils act, As it stood at the time of the impugned appointment, The advocate - general was to be the ex - officio chairman of the bar council; (the position is altered by subsequent amendments, And today the chairman is not chosen ex - officio, But is to be elected) ; he has a right of pre - audience under s. 23 of the advocates act, 1961; he has certain special functions and responsibilities to discharge under ss 91 and 92 of the civil procedure code, Regarding public nuisances and public charities; he has special functions under s. 194. 333 and 495 of the criminal procedure code; and an important part to play in the launching and prosecution of actions under the contempt of courts act, 1971.

4. The petitioner's counsel contended that a duplication of the office of the advocate - general or the appointment of more than one person to that office would provoke a serious conflict is the discharge of the important constitutional and statutory responsibilities and functions of the advocate - general; and for that reason, It was contended that a duality of the office was not intended or contemplated by the framers of the constitution. If two or more advocate - generals were to be appointed under the article, Who, It was asked, Was to address the assembly under art. 177 of the constitution, If the assembly decided to hear the advocate - general, On any particular aspect?; who, In such a case, Was to be the ex - officio chairman of the bar council? (so long as the bar councils act required such a choice) ; who again, Was to discharge the important function of entering a nolle prose qui under the criminal procedure code?, Or act as protector of public charities under s. 92 of the civil procedure code?, Or discharge the special responsibility in respect of contempt of court? these and other aspects were expatiated at great length to impress on us that a plurality of advocate - generals, Functioning under the constitution, Was not to be envisaged at all. Our attention was drawn to art. 76 of the constitution providing in almost similar terms for the appointment of the attorney - general. With lesser degree of appropriateness, Our attention was also called to the following articles of the constitution, Providing for certain constitutional offices, Namely, Art. 52 (president) ; art. 63 (vice - president) ; art. 93 (speaker and deputy speaker) ; art 124 (chief justice of india) ; art. 148 (comptroller & auditor - general of india) ; art. 153 (governors) ; art. 178 (speaker & deputy speaker of the legislative assembly) ; art. 280 (finance commission) ; art. 315 (public service commission) ; and art. 338 (special officer for scheduled castes, Scheduled tribes, Etc.). With varying degree of emphasis and effect, It was argued that a duplication of these constitutional offices was not intended or contemplated.

5. We have given these arguments our very careful thought and consideration. We should not be understood as belittling the importance and the relevancy of these considerations in duplicating a responsible constitutional office such as that of the advocate general. But the policy and the propriety underlying the duplication is one thing, And its legality, Quite another. We are concerned only with the latter aspect of the question. The scheme of art. 165 of the constitution, Appears to us, Also, To some extent, At any rate, To keep the appointment to the office as separate from the functions and responsibilities appertaining to it. As noticed already, While clause (1) of the article deals with the appointment, Clause (2) provides for functions and responsibilities, And clause (3), For the duration of the office. It is here that we have to take note of art. 367 (1) of the constitution, Which provides:

"367. Interpretation (1) unless the context otherwise requires, The general clauses act, 1897, Shall, Subject to any adaptations and modifications that may be made therein under art. 372 apply for the interpretation of this constitution as it applies for the interpretation of an act of the legislature of the dominion of india.

no adaptations and modifications having relevance have been brought to our notice. Turning to the general clauses act, 1897, S. 13 thereof enacts:

"13. In all central acts and regulations, Unless there is anything repugnant in the subject or context,

(1) words importing the masculine gender shall be taken to include females; and

(2) words in the singular shall include the plural, And vice versa. "

the above provision was relied on by the state to contend that the provision in the singular for appointment of an advocate - general would include the plural. Both on the terms of art. 367 and on the language of s. 13 of the general clauses act this implication is to be read "unless there is anything repugnant in the subject or context". Is there, Then, Anything repugnant in the subject or context preventing the appointment of two incumbents to the office of advocate - general. May be, Such appointment/ appointments may provoke unseemly scrambles or conflicts or clashes in the discharge of functions. These, However, Are not insurmountable, And may be left to resolve themselves by adjustment of human relationships, By development of healthy conventions, Or by the delineation by rules and instructions. In the case on hand, We have government notification no. 368/bi/76/ law dated 20th august 1976 which makes certain amendments to the notification dated 1111956 relating to the rules regarding the duties, Remuneration etc. Of the advocate - general. In the preamble itself to the parent notification, The words "additional advocate - general", Were to be added after the term'advocate - general'. By clause (2) of the proceedings, Duties and functions of the advocate - general were defined sub - clauses (i) to (xix). Sub - clauses (xviii) and (xix) reads as follows:

" (xviii) to perform such other duties of a legal character as may, From time to time, Be referred or assigned to him by the governor;

(xix) to discharge the functions conferred on him by or under the constitution or any other law for the time being in force:"

clause 3 is as follows:

"3. Duties and functions of the additional advocate general. (1) the additional advocate general shall perform the same duties and functions as are assigned to the advocate - general in items (i) to (xviii) (both inclusive) of r. 2, Subject to the allocation of work by the advocate general except the power to supervise and control the work of the law officers attached to the high court referred to in item (xi) of that rule;

(2) the functions conferred on the advocate general by or under the constitution or any other law for the time being in force may be discharged by the additional advocate - general also;

(3) in part ii, For the heading "the advocate general shall receive remuneration as specified below": -, The following heading shall be substituted, Namely:

"remuneration of the advocate - general" ; it

xx xx xx xx

in view of the above delegation of functions, The constitutional, Statutory and legal functions are to be performed by the advocate - general. Sub - clause (2) of r. 3 merely enables the additional advocate - general to discharge the constitutional and legal functions of the advocate - general. But this is an enabling power to be exercised during the temporary absence or non - availability of the advocate - general, And certainly not in antagonism to his powers in the face particularly of this demarcation of responsibilities as between the two incumbents for the office, We are unable to find any clash or conflict of duties, Which should compel a conclusion that a duality of the office cannot be thought of at all on the language of the constitutional provisions, It is difficult to countenance such an argument. The provisions of the rules framed under art. 165 (2) and (3) which we have extracted above, Persuade us to hold that in actual practice it is possible to secure a smooth and harmonious functioning of two incumbents in the same office.

6. We were also informed at the bar that at least in two states of this country, (rajasthan and jammu & kashmir) additional advocate - generals have been functioning without demur or challenge counsel for the petitioner contended that these appointments have not been shown to be under art. 165 of the constitution; the government pleader countered stating that there is no reason to think that these would not have been under the said article. Beyond these statements neither counsel could supply more tangible information or material, In regard to the genesis of the appointments or the source of power to which they could be traced. We do not propose to over stress the circumstance; but, At the same time, We feel we cannot blind our eyes to the disclosed facts in at least two of the states.

7. The petitioner's counsel cited the decision of a full bench of this court in balakrishna iyer v. Krishnan (1968 klt. 8) which had decided that the expression 'subordinate judge' would not include an additional subordinate judge. We do not propose to examine the decision elaborately. It was clearly concerned with a case, Where, Under the provisions of the concerned act. A subordinate judge was to function as a persona designata and the incongruities of allowing an additional subordinate judge to function, Were manifest, As was exposed by the decision. In other words, There was enough from the context to indicate a contrary conclusion.

8. The decision in law society v. United service bureau limited ((1934) 1 kb. 343) again, Has no application. The same only decided that under s. 46 of the solicitors act, 1932, The expression "person" in the singular cannot be taken to include "persons" in the plural also, So as to authorise conviction of a body of persons constituting a firm of counsel who had carried on their profession without taking out or obtaining the necessary certificate, A contravention liable to be visited with conviction by a criminal court. The decision is quite understandable on the well - recognised reluctance of the courts to expand the region of criminal liability except where the same has been clearly indicated by the context.

9. The learned government pleader cited to us the decision of the privy council in sin poh amalgamated (hk.) ltd v. Attorney - general and another ((1965) 1 all er. 225) where lord pearce, Formulated a test to find out "contrary intention" in the context within the meaning of the interpretation act (worded similarly as the general clauses act). The relevant observation is as follows:

"the interpretation ordinance was intended to avoid multiplicity of verbiage and to make the plural cover the singular except in such cases as one finds in the context of the legislation reason to suppose that the legislature, If offered such an amendment to the bill, Would have rejected it. Here their lordships cannot find any such reason.

there is thus no "contrary intention" sufficient to exclude the operation of the interpretation ordinance, And the appointment was validly made - "

the principle was followed by the judicial committee in blue metal industries v. R. W. Dilley ((1969) 3 all er. 437). Even propounding and accepting the test, We asked the government pleader and the petitioner's counsel, Whether it was not any man's guess at to how the legislature would have reacted to a proposal to have a plarality of advocate - generals. We do not think we got a recordable reply.

10. The government pleader pointed out the historical evolution of art. 165 of the constitution vis - a - vis its predecessor s. 55 under the government of india act. He reminded us of the deletion of the provisions of sub - clause (4) of s. 55 of the earlier act providing for the appointment of advocate - general on the individual judgment of the governor, From art. 165 of the constitution. This was emphasised as indicating a shift to make the office more political in character. We also take note of the fact that under the con situation, The advocate - general's salary has become an item subject to annual vote of the legislature rather than one charged on the consolidated fund, As it was, Under the government of india act but these, We are afraid, Do not help us to obtain a decisive answer to the question of "contrary intention" posed by lord pearce in the privy council case noticed above.

11. The petitioner feebly raised the plea of mala fides. The averments of the petitioner hardly make out any case of mala fides, And even unanswered, We would have taken no note of them. They have been controverted in the counter affidavit; and we have no hesitation to reject the case of mala fides.

12. On the whole, We are not satisfied that the petitioner has made out a case to show that the 2nd respondent is a usurper of the office of additional advocate - general. No case for the issue of a writ of quo - warranto has been made out. We dismiss this writ petition with no order as to costs.

Padmanabhan v. State Of Kerala

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent / State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Immediate Consequences for the Parties

Broader Legal Implications Noted by the Court

Padmanabhan v. State Of Kerala

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