JHAMAN KARAMSINGH DADLANI Vs. RAMANLAL MANEKLAL KANTAWALA

JUDGEMENT

(1.) The petitioner, an advocate of this Court. seeks to challenge the Bombay High Court (Original Side) Rules, 1957, in this petition under Articles 226, and 227 of the Constitution of India on the ground of the said Rules being violative of Articles 14 and 19 thereof as also the provisions of the Advocates Act. 1961 . A writ directing Union Government to enforce Section 30 of the said Act said Act also is sought . This petition was lodged and received at the appellate Side. Notice before admission was directed to be issued by Vaidya and Dudhia JJ. to the respondents and certain other interested institutions, in view of importance of the points raised, when the matter was placed before us for admission, on the appearance of the respondents, etc., as per order of the learned Chief Justice. Regular Bench for constitutional matters could not hear it earlier due to an objection raised by Mr. Desai that one of the learned Judges was a member of the delegation opposing such Rules. The learned Advocate General and Mr. Ashok Desai raised a preliminary objection to the competency of this Bench of enter in the petition on the Appellate Side. We have heard them and Mr. Kalsekar, learned Advocate for the petitioner, as also Mr. Paranjape. Mr. Singhavi Mr. D. R. Dhanuka, Mr. M. A. Rane Mr. H.K. Shah and Mr. Mahendra Gill, learned Advocates appearing for different institutions and the learned Government Pleader, all of whom supported the petitioner.

(2.) This High Court since its establishment in 1862 under the Letters Patent has been exercising original as well as appellate jurisdiction and its functioning is regulated by 'the Bombay High Court (Original Side) Rules, 1957 and 'Rules of the High Court of Judicature at Bombay. Appellate Side, 1960' (hereinafter referred to respectively as 'O. S. Rules' and 'A. S. Rules'). Rules also provide for disposal of petitions under Articles 226 and 227 of the Constitution. Supervisory jurisdiction of the High Court under Article 227 of the Constitution is exclusively vested in a Bench on the Appellate Side and jurisdiction of either of the two k wings of this Court under Article 226, however depends upon whether "the matter in dispute" arises substantially in Greater Bombay or beyond it, the same being execrable by the original Side in the former case and by the Appellate Side in the latter case. This is not made dependent on the matter being in fact of an original or appellate nastier. The contention of the learned Advocate General and Mr. Desai is that the matter in dispute, on averments in the petition must be said to have arisen at any rate substantially within the limits of Greater Bombay and the petitioner cannot be permitted to avoid the impact of these Rules and choose his own forum by merely quoting Article 227 of the title and prayer clause of the petition, when it is not attracted or by merely making a pretense of the dispute having arisen beyond Greater Bombay by referring to non-existing facts to attract the Appellate Side jurisdiction under Article 226.

(3.) This take us to the close scrutiny of the facts averred. One Joglekar of Mahad in Kolaba District, filed a Company Petition through the petitioner on the Original Side of this Court. Rule 35 disables any Advocate from appearing in any such a matter unless instructed by an Attorney or unless he happens to be a Supreme Court Advocate. The Assistant Master virtually declined to receive this petition expressing doubt about the petitioner's competency to so file it without complying with the Rules. It is not disputed that Chamber Judge's authority to receive or refuse to receive such documents under Rule 89 is delegated to the Assistant Master under Rule 96. sub-rules (1) and (10) of the O. S. Rules read with clause (b) of Company (Court) Rules subject to his 9 the Chamber Judge on the Original Side) over-all supervision. The real grievance of the petitioner is that Rule 35 is invalid being voilative of Articles 14 and 19 of the Constitution and provisions of the Advocates Act and the order of the Assistant Master is violative of his unrestricted right to practice as an Advocate in this Court without regard to whether the matter is cogniisable by the Original or Appellate Side and without being instructed by any Attorney or enrolling himself as Supreme Court Advocate. His further grievance is that failure of the Union Government to enforce Section 30 of the Advocates Act and piecemeal enforcement of the provision of the said Act has perpetuated such disabilities. He thus claims relief under Articles 226 and 227 of the Constitution.