ADI PHEROZSHAH GANDHI versus H. M. SEERVAI, ADVOCATE-GENERAL OF MAHARASHTRA, BOMBAY

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863

ADI PHEROZSHAH GANDHI

v.

H. M. SEERVAI, ADVOCATE-GENERAL OF MAHARASHTRA,BOMBAY

August 21, 1970

[M. HmAYATULLAH, C.J., J. M. SHELAT, G. .l(. MITTER, c. A. VAIDIALINGAM AND A. N. RAY, JJ.]

A.dvocatts Act (25 of 1%1) s. 37--,:ferson aggrieved', meanmg OJ Advocate-General of State taking part in proceedings before Disciplinnry Committee of Bar Council-If 'person aggrieved' with a right of appeal.

The appellant wa~ an advocate from Maharashtra. He was convicted by a Summttry Court in London on a charg~ of pilfering from a Depart mental Store and was sentenced to pay a fine. The State Bar Council chlled upon him sou motu to show cause why he should not be held guilty of misconduct. lie submitted his explanation and the Disciplinary Committee of the Bar Council was satisfied that there was no reason for holding him guilty of profession~ misconduct. The Advocate-Genen.l required by of the State who was sent a noti~ of tile proceedings as s. 35(2) of the Advocates Act, 1961, and had appeared before the Discip-. Jinary Committee, tiled an appeal tp the Bar Council of India un~r the s. 37 of the Act, under which, any 'person aggrie\·ed by an order of Disciplinary Committe~: of the StatQ Bar Council mad~ under s. 35 of the Act, may prefer an appeal to thl: Bar Council of India. The appel~ !ant objected that the Advocate-Gene~al had no to file the appeal. The objection was overruled by the Disciplinary Committee of tbe Bar Council of India and the appellant was found guilty of profes- sional misconduct.

locus standi

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In appeal to this Court, on the question of the compett:u~y of

Advocate-General to file the appeal under s. 37.

the

HELD : (Per Jiidayatullah, C.J., Shelat and Mitter,

JJ.) The Advocate-General Was not 'a person aggrieved' within the meaning of .s. 37 and therefore, the appeal filed by him was incompetent and hence, the finding of the Disciplinary Committee of the Bar Council of India should be set aside. [887 H; 904 E)

(Per Hidayatullah C.J.) (1) The expression 'person aggrieved' must be construed by reference to the context of the enactment in which it appears and all the circumstances. Under the Act, disciplinary proceed iags before a State Bar Council commence on a complaint to it or suo mtJtu and are referred to its Disciplinarr. Committee. The Disciplinary Committee can reject the matter summartly; but if it proceeds to hear it further, notice thereof is sent to the 6oncemed advocate and the Advocate.{Jeneral of the State. The Advocate-General may appear personally or by counsel. If the Disciplinary Committee after giving the A,lh-ocate and the Advocate-General an opportunity to be heard holds that the Advocate is not guilty of any misconduct it makes an order ::ither dismissing the complaint, or where the pro:eeding was started by the Bar Council makes an order that the matter may be filed. If it finds the advocate guilty it may either reprimand the advocate or suspend

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864

SUPREME COURT REPORTS

thi advocate from practice for a specified period or remove his name from the roll of Advocates. From the decision of the Disciplinary Committee of the State Bar Council an appeal lies to the Bar Council of India at the instance of 'a person aggrieved'. The appeal is heard by the Disci pHnary Committee of the Bar Council of India and from its decision an app-:al lies to this Court. ([884 E-H; 885 A-B]

(a) In

these proceedings before

the disciplinary committee

the Ad\·ocate-General is not in the nature of a party having independent rights which he can claim nor is ,be injured by the decision. The decision doe5 not deny him 1>nything nor does it ask him to do anything, He j; also not intended to be bound by the decision. He does not represent the Bar nor has he a right to speak on behalf the body of the advocates. Such a privilege is neither expressly conferred on him nor can it be implied from the provisions of the Act. [885 C-D; 886 A-B]

(b) In the State Bar Councils (except in Delhi), the Advocate-General o( the State is an e.x-offl.cio member, but his functions are not different from those of other members. He has a right of pre-aud·ience, but the Admcatcs Act does not confer any other right on him. W,hen the Com nittee considers in limini to decide whether the matter should be pro c:;-ded with at all. the Advocate General's presence is not considered necessary. Therefore, the Advocate-General is not a prosecutor on behalf ot rhe Bar Council.· He is noticed and brought before the Committee be cause he is the Chief Counsel of the State and therefore his assistance ·at the hearing is useful. He is generally a lawyer of some standing hav- . ing made a mark in the profession and his contribution to the delibera tic-ns of the Disciplinary Committee is welcome, because, thus the Dis ciplinary Committee is helped to reach a l?roper conclusion. The fact th;;,t he can appear throug,h counsel shows that the intention is merely to ha\'e his opinion as an amicus curiae who is neither siding with the complaintant nor with the Advocate and w~o will thus have an unbiased und impartial approach to the case. He must after he has done his duty ~~~ve the matter to the complainant and the advocate or the Bar Council to take the matter further if they choose. [883 C, E-F; 885 E-H; 886 A]

(c) If he is not a person summoned to be bound by the order but a person who is ,beard in a &ispute between others merely to be of assist ance in reaching the right conclusion he can hardly have a grievance. Am· person who feels disappointed with the result of a case is not 'a perSon aggrieved'. He must be disappointed of a benefit which he would ba\'e received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something or must have a tendency to inJure him. That the order is wrong or that it acquits some one who he thinks ought to be ~onvicted does not by itself r,i\'e rise to a legal grievance. [876 A-C]

Therefore it cannot be said that by reason of the provisions of the Advocates A~t, the Advocate-General of the State enjoys such a position that he must necessarily be treated as 'a person aggrieved' entitling him tD file an appeal. f882 H; 886 G)

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In re. Sidebotham Ex. Sidebotham, (1880) 14 Ch. D. 458(C.A.). In n. Lamb Exp. Board of Trade, [1894] 2 O.B.D. 805, 812, In re. Kitson, Ex;~. Sugderi·(Thomcs) & Sons, .Ltd. [19.11]2 K.B. 109, 112::.._114, Bl!'·- H re · BI'Own E.xp. Debtor v. Offi.cwl Rece1ver (1943) Ch. D. 177. Ell1s · E;p, Ellis (1876)2 Ch. D. 779, ln re. Words Exp. Dalton (1874)~ L.T. 297(C.A.). R. v. London Count,v Keepers of .Peace and Just1ce [1890] 20 Q.B.D. 357, Jennings v. Kelly, (1940] A.C. 206, (H.L.). In

A. P, GANDHI v. H. M. SBBll.VAI

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'- re. Reviere (1884) 2 Ch. D. 48, Robinson v, Currey {1881] 7 Q.B.D. 465, 470. (C.A.}; Seven Oaks Urban District Council v. Twynham (1929) 2 K.B. 440, 443, Ealing Corporation v. Jones L. R. [1959] 1 Q.BD. 384, B. M. Madani v. Commissioner of Workmen's Com,ensation Bom bay, C.A. 877 of 1968 decided on October 10, 1968 and Municipal Corpo ration oj the City of Bombay v. Chandukzl Sht.maldas Patel, C.A. 1716 of 1967 decided on August 1, 1970, referred to.

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( 2) It could not be said that in the present case there were several points of general public interest which needed to be solved and there· fore, if the decision of the Disciplinary Committee of the State Bar Council was wrong, the Advocate-General, in public interellt, could take the matter further. [886 G-H]

Unlike the position of an Attorney General in a Crown Colony, the Advocate-General of a State in India does not represent the Executive or the Legislature or ~he Judiciary, or the Central Government in discipli nary proceedings before the Disciplinary Committee. . The magnilo quent phrases such as Leader of the Bar, Keeper of the Conscience of the Bar have no meaning neither under the Advocates Act nor under the Bar Councils Act, 1926. They are just honorofic titles given by the courtesy but are not grounded on law, the keepers of the conscience of the Bar being the Bar Councils. [883 F-G; 886 C-D}

In the present case. the appellant was not precluded from question ing the charge in the disciplinary proceedings beca\lle of the decision of the Criminal Court in London. His explanation was accepted by the Disciplinary Committee of the State Bar Council. They were also satis in EiJ.Jlano fied that the summary proceedings in the criminal trial offended against the principles of natural justice, and that thercfo~, the conviction· of the appellant in· England did not show any moral turpitude in the appellant. If the Advocate General's view on these matters were not accepted by the Disciplinary Committee he • could not ha\'e any 8tcievance. He could not make it his own cause or a cause on behalf of others whom he did not represent. He had done his duty and tl\e matter should have rested there. rss7 C-F]

Attornt:J·Gtneral t1j Gambia v. Pierre StuJr N'Jie, [1961] A.C. 617

(P.C.) referred to.

that

(3) (a) The facts

in Advocate-General of Bombay v. Phlro1: Rustam/1 Barucha 37 Born. L.R. 722 (P.C.) the staudina of the Advocate GenCl'al to apply for special leave in a proceeding relatinf to profeuional lnisconduct of an Advocate was questioned bellore the Pr'lVy Council, but that the Privy Council refused SJ?tCial leave on a different ground cannot import a rejection of the objection as to the standing of the .Advocate General. rsst E-FJ

(b) The observations in B. Nc.grshV:•ara Rao v. The Hon'ble Judges uf the Madras High Court, [1955] 1 S.C.R. 1055 that in an appeal arising out of a proceeding under the Bar Councils Act, it was inappropriate to make the Judges respondent, and that the appropriate parti~s should be the con~erncd Advocate the complainant (if any), the Bar Council and the Advocate-G.:neral of the State, do not advance the case of the Advocate General in this case. [882 E}

(Per Shelat and Mitter, JJ.) ( 1) A State Bar Council consists of a ·number oi 111embers including the Advocate-General of the State ex-afficio. Under the provisions of the Advocates Act, subject to a Jight of appeal to this Court under s. 38, inquiries into char~es of misconduct against L169CI/71-ll

866

SUPREME COURT REPORTS

( 197 J ] 1 S.C.R.

advocal~s arc to be in the exclusive jurh.diction of the Bar Councils. · If a compla_int is received against an Advocate it is reft!rred to tbe Disciplinary Cornrmttee of the Bar Council or the :aar Council c:tn take such a step suo. motu. lt is however not obligatory to refer each and every coro plamt but only when the Bar Coun~il is satisfied that there is a prima facie If it is not so satisfied it can throw out the com ca~e for investigation. plaint as frivolous. And it is only when the Disciplinary Committee does not s~arily reject the complaint that a date has to be fixed for its hearing and notice thereof must be given to the advocate concerned and incumbent the Advocate-General of through on the Advocate-General to appear in person; he can appca·r at~othcr i!dvocate and place his view-point before the Disciplinary Com mtttee. The Advocate and a complainant who makes allegations against an advoca.tc are persons aggrieved entitled to file an appeal under s. 37 if an ::>rder Js made against the advocate, N the complaint is dismissed by the Discivlinary Committee:. But the State Bar Council cannot be such a person as the order is made by itself and acting through its Disciplinary Committe':'. [889 B-C; 891 B-CJ ·

the State but

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Generally speaking a person is said to be aggrieved by an order whkh is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. A person who is not a party to u litigation bas no right of appeal merely because the juugmcnt or order contains som<> adverse remarks against him. A person who is not a party to a suit may prefer an appeal, with the leave of the' appellate court when the judg ment would be binding on him. But because a person has been given notice of some proceedings wherein he is gh·cn a right to appear ami make his submissions, he docs not without more, have a right of appeal from an order rejecting his contentions or submissions. To the Advocate-General in the company of "persons aggrieved" one must be able to say that t.he Disciplinary Committee committed an error which it was his duty to attempt to set right because of some function attribut· able to him as the Advocate Gene1 al or. some obligation cast upon him by the Act or the general law of the land to safeguard and maintain standards of conduct of Advocates laW down by the Bar Council of India. [892 B-Fl

.place

(a) The Advocate-General is entitled to a hearing if. the complaint is not rejected summarily. But it is not obligatory on him to take .part i~ the proceedings. It is only w,hen he feels that a case requires a care 'ful investigation and proper elucidation of ,the facts or .the exposition of the law on the subject that he is called upon to render a.~sistance. He hAs to take a fair and impartial attitude and r.~n<icr all assi~tance to the Bar CounCil to enable it to arrive at a proper decision. His role is not that of a prosecutor nor is he a defence counsel on behalf of the advocate. His duty is to put before the Disciplinary Comt~ittee the facts in their, proper perspective and .to advance the proper mfercncc t~ be drawn. Once he does so there tA an end of tbe matter so. ~ar as he 1s concerne~: and he cannot have an" grievance ~ause the dects1on of the Bar Counc1l is against his submission or not to his liking. [896 G-H; 897 A-C]

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(b) Article 165(2) of the Constitution epitomizes the functi?Rs and It lays down that he h~s ~o discharge duties of the Advocate·General. the functions conferred upon him bv or under the Const1tutton or any lt is n~t open to the A&vocat~­ ttber law for the til'!}e being ·tn force. General to intervene In any mit or legal proceedmg apart from the provi sions of the Codes of Civil and Criminal Procedure, ~er~ly because he thinks public interest is involved in the matter. Constdermg the matter

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historically, the Legislature, ·while passing the Bar Councils Act, 1926, and the Ad\-ocates Act, 1961, thought that the Advocate-General tboWd be. beard · inasmu~h as h~ oceupied the posif:ion Of a general referee on pomts of · professtonal etiquette very. much like the . Attomoy-Geocral in Eogland. Onee he does this duty enjoined upon him by the statute, of making such submissions as he thinks oroper at the hearin& his tunc- · tions qw the enquiry come to an end.· As a referee he has no furtber B ·interest in the matter, and if the Disciplinary Committee makes an order against the advocate which the Advocate-General considers hant . and unreasonable he is not called upon to file an appeal. Neither is be inte rested in prosecuting the matter further if he takes the view that ~he punishment meted out is not commensurate with the misconduct of the <Advocate. [897 D-E, G-H; 900 C-FJ

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. Robinson v. Currey, 7 Q.B.D. 465, Ex parte Sidebothom.

In re Sidebotham, 14 Ch. D. 458, 465, Ex parte Oflic/Ql Receiver. In re Read, .,Brown &: C.o. 19 Q.B.D. 174, 178, The Queen v. Keeptrs of the Pt4ce and Justices of the County of London, 25 Q.B.D. 359, 361; Rex v. Lon don Quarter Sessions, Exparte Westminster Corporation (1951) 2 Q.B.D. 5f)8, Snen Oaks Urban District Council v. Twynham, (1929) ' 2 (Nl.D. 444, Ea/ing Corporation v. Jones, (1954) 1 K.B. 384, 390, referreG to,

(2) The Ad\-ocate-General of a State in India is not a repre&en~tive of the Government. Neither the Constitution nor the ' Advocates i Act holds him so nor is he a person representing public interest, unliko6 the statutes. Attorney-General in a Crown Colony, except as provided in He may draw the attention of the Bar Council to any misconduct of an advocate and appear at the bearing. Once the hearing is ove1 and a finding is recorded he has done his du~y apd he cannQt ~ said to be aggrieved within the meaning of s. 3 7. Every day courts of law are called upon to decide questions of Jaw inter partes which may be of general importance to the public. 1be Advocate-General cannot prefer an appeal merely because the question is one of considerable. importance to the public inasmuch as he is not a party to it; and be has LJ locus standi to do so, even in a case ~bllfe the statute only gives him an opportunity of appearing at a hearing ·and making his submission. ~ decision of the Dtsciplinarv Committee cannot necessarily be said to raise a point of public interest merely because the Advocate General feels that it is erroneous or that he himself would have arrived at a different It is at best his personal opinion. The Advocate-General conclusion. in India is not the guardian angel of tbe Bar. oor is he the champion of in a statute. [902 D-G; puhlic interest in any matter save as speci.fted 904 B-El Attornev General of Gambia v. Piem! s., N' 1~, (1961) A. C. 617,

(P.C.), referred to.

( 3 )(a) The decision of the Judi<.ial Committee in Advocate-Genera!. Bombay v. Phlroz Barucha, 37 B.L.Jl. 722 (P.C.) does not help the Advocate-General, because it did not decide the point u to the maintain

• ability of the appeal. [903 C-DJ

that anv

(b) It did not appear

in 8. Nageswara Rao v. The Hon'ble Judge, of the Madras High Court." [1955]1 S.C.R. 1055, 1064 about the prpper parties to the appeal before this Court arising from proceedings under the Bar Councils Act; and the point as to whether the Advocate General was a person aggrieved Wa!> neither raised nor argued.. Therefore, the observation in the case that

lfiUitlent was advanced

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SUPREME COURT REPORTS

(1971] 1 S.C.R.

the Advocate-General of the State is an appropriate party in the appeal should not be accepted. [903 G-HJ

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(Per Vaidialinaam and Ray, JJ. dissenting) : The appeal tiled by the Advocate-General of Maharashtra was competent as be was 'a person aggrieved' under s. 37 of the Advocates Act, 1961. [908 B-C; 920 G-H]

·(Per Vaidialiogam, J.) : (1} 'Ibe question whether

the Advocate General is a 'person aggrieved' under s. 37 of the Advocates Act will have to be tackled with refero}nce to the scheme and provisions of the Act. Under the Act, the State Bar Councils and the Bar Council of India have been n;.ade autonomous units and various functions regarding the legal pr~fesston have been entrusted to them taking disciplinary action against delinquent members and conducting inquiries. Barring a right of appeal to this Court under s. 38 the ·courts are completely out of the picture. Under ss. 3(2)(a), 23(4) and 35, the Advocate.General of t.be State is given a very important and responsible position and the Act has gi\'en due recognition to his status by virtu~ of his being the hi~est law officer in the State, and as one who may be trusted to 'place ~ dis interested and dispassionate Yiew before the Disciplinary Committee to enable it to come to a proper decision with respect to the advocate con ~erned and the legal profession. Apart from being an ex of!lc:io member of the State Bar Council, he bas also a right of pre-audience over other advocates. [909 D-G; 911 G-H; 912 B-D; 916 A]

including

Under ss. 35 and 37, (i) the State Bar Council can suo motu or on receipt of a complaint, OW1hen it has reason to believe that an advocate has been guilty of professional or other misconduct, refer the case to its IJis .ciplinar!' Corlimittee (ii) If the Committee does not summarily reject the complaint, it is bound to fix a elate fo•· its hearing ando al~o bound to give n\ltice to the advocate and the Advocate General of the State; (iii) The Committee is bound to give an opportunity of being heard to the Ad\'o· ·cate and the Advocate-General and there is no distinction in the opportu ·nity so afforc.led to both of them; (iv) The Advocate-General may appear 4n person or through counsel: (v) the Committee can pass one or other of the orders enumerated in s. 3S(a) to (d) and the orders have to be communicated to the Ac.lvocate.Oeneral also, and under s. 37 'any person aggrieved' i~ entitled to file an appeal to the Bar Council of Jndiu. Unlike under · the Bar Com1cits Act. the Advocate-General is associated with the disciplino.ry proceed ina~ right from the ~to.ge of the inquiry by· the Committee. The notice to the Advocate.General cannot be a formal · and empty notice, because he should be given nn opportunity of being heard. Even though there may be no 'lis' and the Advocate-General may not be a 'party' in the usual sense, he is also entitled. like the advocate against whom the inquiry is being conducted. to place before the Com mittee all aspects of the matter in favour of and against the advocate. He is allowed to appear bv counsel. because, he may not be able to appear personalty and participate !n all the disc.iplinary p:oceedin.gs. He n~d not be ,;ndictive or take stdes, but by vutue of h1s spectal and dis passionate role he will be able to place all releva.nt material to enable the Committee to come to a proper and correct findmg. [912 D-H; 913 A-H : •)14 A·Bl

(a} The fact that the Advocate General docs not allege an infrin~e­ ment of any legal rights of his own is of no consequence. It may be that fo a particular case the Ad\'"Ocate General may the fin~ing arrived at either in favour of the advocate or agamst h1m or the pumsh ment imposed on the advooate. is not jus!ified bv the evidence. on record. Under such and similar circumstances the Advocate General wJil be com petent. as 'a person agg~iev~d', to ·bring up the matter before the Appel late Committee so that JUShce may be done. [914-G; 915 A-CJ

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A. P, GANl>lU v. H. M. SBERVAJ

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Sevenoaks Urhan District Council v. Twynham [1929] 2 K.B. 440. Ecding Corporation v. Jones [1959] 1 Q.B. 584, Madani v. Commissioner of Workme~r's Compensation, Bombc.y, C.A. 877 of 1968 decided on October 10, I 968.

Re. Siclehotham 14 Ch. D. 458, The Queen v. The Keepers oj the Peace and lltstice.1· of the County of London, 25 Q.B.D .. 357, Re. Reed, Brow" & Co. 19 Q.B. 174, Rex v. London Quarter Sessions (1951) 2 K.B. 508 and Municipal Corporation of the City of Bombay v, Chandulal Shamaldas Patd. C.A. 1716 of 1967 decided on August 1, 1970, referred to.

(b) The fact that the Legislature provided that the Advocate-General should be associated with the disciplinary proceedings from the very beginning of the inquiry brings him undtt s. 37 as 'a person aggrieved' and hence the fact that the Ccmmittee decided in favour of the Advo cate has no bearing on the question. [914 G-Hl

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(c) The fact that the Ad\-ocate General is not given notice before re jecting a complaint summarily does not militate against the view that be is 'a person aggrieved' because, probably, the Legislature felt that if there was a wrongful summary reje,,:tioo of a complaint, it could be ~t right by the Bar Ccuncil of India \lnder s. 48A by exercising its revl sional powers. [916 E-F]

(d) In thi.'l view it is unnecessary to mention the Advocate General

specifically 'a person aggrieved' in ~. 37. [918 A]

(2.) The analogy of the Attorney-General in a Colony repre5enting the Crown and being the guardian of public interest as stated in .Attorney Gtneral of Gambia v. Pelrre Sarr N' lie (1961) A.C. 617 cannot be brought in for interpreting s.37 of the Advocates Act, and the observa- · tions therein must be related to the particular legal provisions which were considered. But even that decision recognised that the words 'person aggrieved' are very wide and should not be subjected to any restrictive tnteqirctation. (912 A-B: 920 A·B, EJ

(3) The decisions in Advocate-General of Bom/Jay v. Pitambardas Gokuldas, 62 I.A. 235 and Advocate-General of Bombay v. Phiroz Rustomji Barucha, 37 B.L.R. 722(P.C.) do not decide the quec;tion one way or the other. [917 A-Bl

(Ptr Ray, J.) : (1) The purpose and the provisions of the Advocates Act ;:!etermine whether the Advo;:ate-General is a person aggrie\·ed within the meaning of s.37 of the Advocate~; Act. Under the Act. a State Bar Council i,; empowered to con!ltitutc a Disciplinary Committee. Where on receipt of a complaint or otherwise a State Bar Council ha~ reason to hetieve that an advocate on it~ roll i!; guilty of profcs~ional mi~conduct it shall refer the case for disposal to its Disciplinary Committee, l\nd if the Committee does not summarily reject it, a date of hearing shall be fixed. The provisions relating to inquirie'> into profes~ional misconduct of an advocate. establish first that the Advocate General entitled to a notice of the date of hearing, secondly. that no order can be made bv the Discipli nary Committee without givin~ him an opportunity, and thirdly that he may appear in person or th·rough an advocate and that he has a right of preaudi ence. He may not choose to appear but if he docs appear, his right is ba~d on statute: and he does not apnear as ·a mere friend of the court. He is heard because he is the t1ead of the Bar in the State and the proceedings affect the discipline and dignity of the Bar and touch the profe:o;sional

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SUPR.EME COUilT REPORTS

(1971] 1 S.C.R.

165 of the Constitution

conduct of aa adl-ocate. Under Art. the AdV'ocatc Oeoeral has to discharge the functions conferred on him by the Constitution or any other law in force. The Advocates Act concerns .an advocate and it is in the fitness of things that the Advocate General of the State is heard ~ a person representing the profession which assists the Jitipnt public and : tbe courts in the administration of jurtice. He i~ liiUIIIy a penon of hilh standina and experience and will not adopt any pctilan attitude in the proceedings. The purpose of the inquiry is not &o .~ the gri,evance of an individual complainant-in fact ss. 35 and 36 do not contemplate any notice to the complainant-but to find out whether there is any breach of professional standards and conduct.

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[926 C-H; 827 F-H; 928 A-C}

(a) It is not the intention of the statute that he would be merely a <1eutral observer before the Disciplinary Committee and that he would have no duty to perform. He would have to express his views, and if in. a matter \of sufficient gravity a totally inadequate punishment is im poted or if the punishment is too severe the Advocate General would be a 'per100 agrieved', to have. it corrected. The words 'person aggrieved' MD be referable to the Advocate, complainant, and the Advocate Gene ral or Attorney General as the case may be. The Advocate-General and the Attorney General will be persons aggrieved because they are in .terested in maiotain~ng professional rectitude. [929 C-G]

(b) Further if the proceedin~ were held without notice

the Advocate General or without ginng him an · opportunity of being heard he would be a· person aggrieved. . His participation in the proceedings .data not ~ter the position. If he has a right to be heard, he may have a grievance aa to the result of the hearing. [929 A-B]

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Re. Exparte Sidebotham -14 Cb. D. 458; Exparte Official Receiver. ln re. Reed Bowen, 19 Q. B. D. 174, Sevenoaks Urban British CounciL · v. Twynhtm ( 1929) 2 K. B. 104, Queen v. Keepers of the Ptt;ee and Justices of the County of London, 25 Q .. B. D. 351 and Madani ... Commir.Jioner of Workmen's Compensation, Bombay, C.A. 811 of 196~ decided on October 10, 1968, referred to.

(2) lD dilciplinary proceedings there is no party in the usual ·sense. ·n.. Ad\"OC&te-Geoeral is not a party to a 'lis' and has no personal or peamiary or proprietary interest in the matter. That is why the Act . usa tbe words 'person aggrieved' and not 'party aggrieved'. But he is heard, not beCause he is a party, but because he represents the interest of tbe profession anct for the purpose of upholding its purity and t.be p..ervation of correct atandards and norms. Prom this point of view he will be an aagrieved peliOn wbco he find1. that the interests of the Bar. Nbich is a matter of public interest, is not properly safeguarded by the In Attorney General of Gambia v. Pierre Dlaclp,Jinary Committee. Bllllr N' Jl~. (1961) A.C. 617 the JudJcial Committee construed tbe words ~penon agrieved" as not to be su~ected to a restrictive interpretation but to include &\person who has a genuine grievance because an order hu been made which prejudicialtv affected his interest, and that the . worda~would ioclude the Attorney General of Gambia as representing the public interest. ·1927 E-F; 928 C-D, G-H; 929 G·HJ

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·(3) The decisions of the Judicial Committee in Advocate-General of Bomhay v. Phiroz ,Bcruc'Jra, 62 I. A. 235 and of this Ccurt in B. Nagnh wara Rao v. The Hon'ble Jud!(eJ of the Madras High Court, rt955) l .s,C.R. 1055 indicate that the Advocate General under the Bar Councils .Act,· 1926 had locus standi to prefer an appeal. [925 D-E, G)

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A. P. GANDHI v . . H. M. SEERVAI (Hidayatullah, C.J.)

871

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CIVIL APPELLATE JuRlsmcnoN: Civil Appeal No. 2259 of

1969.

Appeal under s. 38 of the Advocate's Act, 1961 from the order dated October 26, 1969 of the Discip1inary Committee of .the Bar Council of India ia D.C. Appeal No. 18 of 1968.

C. K. Daphtary, A. S. R. Chari, J. B. Dadachanji, 0. C.

Mathur, Ravinder Narain and S. Swarup, for the appellant.

V. S. Desai and B. D. Sharma, for re~pondent No. 1.

M. C. Bhandare and S. B. Wad, for r~pondent No. 2.

V. A. Seyid Muhammad and S. P. Nayar, for Attorney~Gene·

raJ for India.

A. V. Rangam, for Advocate-General for the Tamil Nadu. ·M. C. Setalvad, Rameshwar Nath, for Bar Council of India. 0. P. Rana, for Advocate-General for the State of"U.P.

A. G. Pudissery, for Advocate-General for the State of Kerala.

K. Baldev Mehta, for Advocate-General for the Stote of

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R<~_jasthan.

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A. P. S. Chauhan, A. D. Mathur and N. P. Jain,

for Bar

Council U.P.

Sukumar Ghose and G. S. Chatterjee,

for

the· Advocate

General for the State of West Bengal.

P. Patmeswara Rao, for Advocate-General for the Andhra

F Prade:;h,

I. N. Shroff, for Advocate-General for the State oE Madhya

Pradesh.

J. C. Medhi, Advocate-General for the State of Assam and

Naunit Lal, for the Advocate-General for the State of Assam.

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.HIDAYATULLAH, C.J., and· MITTER J. on behalf of SHBLAT J. ·o.md himself delivered separate judgments. VAII>IALlNGAM and \ RA 'I' JJ. delivered separate dissenting opinions.

Hidayatullah, C.J.-1 agree with the judginent delivered by my broth~r Mitter but in view of the importan~ ·of the question and the dtfference between my brethren I have chosen to express myself separately.

872

SUPREME COURT REPORTS

[1971] 1 S.C.R.

We he~rd this appeal on a preliminary point raised by th~; appellant that the appeal of the Advocate-General of Maharashtra filed before the Bar Council of India was incompetent as the Advocat~neral did not fall within the expression a 'person ag grieved' to whom alone is given the right of appeal under s. 37 of the Advocates Act of 1961, against the orders of the Discipli nary Committee of the Bar Council of the State.

The facts necessary to bring out the controversy may be briefly stated. The appellant is an advocate from Maharashtra. The Bar Council of the State of Maharashtra had called. upon him suo motu to show cause why he should not be held guilty of misconduct. It appears that the appellant was convicted before a Summary Court in London Qn a charge of pilfering some arti cles from departmental stores and sentenced to a fine. The record ·of the proceedings in London was not before the Bar Council of the State and action was taken on the basis of a brief report of the incident in a newspaper. The appellant explained before the disciplinary committee of the Bar Council of the State that he was the victim of a misunderstanding but as he had no means of defending himself effectively, he was found guility lWi receiv ed a light sentence of fine. He explained how he had fallen into this unfortunate predicament and did not know llow to extricate himself. The order of the Swnmary Court was not a speaking order and the proceedings were summary. The disciplinary com mittee were satisfied .that there was no reason to hold him guilty therefore, ordered of professional or other misconduct. They, that the proceedings be filed.

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The Advocate-General of the State, who was sent a notice of the proceedings, as is required by the second sub-section of s. ·! 35, and had appeared before the committee, purportin~ to act . under s. 37 of the Act filed an appeal before the Bar Ciuncil of India. It was heard by the disciplinary committee of the Bar II Council of India. The advocate objected that the Advocate , 1 i General had no locus standi to file the appeal. The objection .. r· was overruled and the appeal was accepted. The advocate was held guility of misconduct .and suspended for a year from prac- tice. The advocate now appeals under s. 38 of the Act to this . Court. His appeal raises questions of merit but he contenqs at the tbreshhold that the Advocate--General was not competent to file the appeal under s. 37 of the Act.

Th point in controversy before the disciplinary committee of It is : 'he Bar Council of India arid now before us, is a short one. whether the Advocate-Genex:al can be said to be a -person aggriev ed' by the order of the disciplinary committee of the Bar Counci1 of the State Having heard this poi·nt in detail we took time I am of the opinion that it must be held in favonr to consider.

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A. P. GANDHI v. H. M. SEERVAI (Hidayatul/ah, C.J.)

873

A of the advocate and the order of the disciplinary committee of the Bar Council of India, now under appeal before us, must be set aside on this short ground without going into the merits of the case.

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Section 37 of the Advocates Act 1961 reads : "37. Appeal to the Bar Council of India. ( 1). AID _a;woo~ggrieyed py an order of the dis ciplinary committee of a State Bar Council made under section 35' may, within sixty days of the date of the communication of the order to him, prefer an ap peal to the Bar Council of India.

. ( 2) Every such appeal shall be heard by the dis ciplinary committee of the Bar Council of India which may pass such order thereon as it deems fit."

The expression a 'person aggrieved' is not new, nor has it oc-· curred for the first time in the Advocates Act. En fact it occurs in several Indian Acts and in British Statutes for more than a In the latter a right of appeal to a 'person ag hundred years. grived' is conferred in diverse contexts. It occurs in the Ale the B8lllkruptcy Acts, Copyright Act, Highway House Act, Act, Licensing Acts, Milk arul Dairies (Amendment) Act. Rating and. Valuation Act, Summary Jurisdiction Act, Union Committee Act, Local Acts, in certiorari proceedings and the Defence of Realm Regulations to mention only a few. The list of Indian Acts is equally long.

As a result of the frequent use of this rather vague phrase. which practice, as Lord Parker pointed out in Ealing Corporation v. JoMs(l), has not been avoided, in spite of the confusion it causes, selections from the observations ot judges expounding the phrase in the context of these varied statutes were cited before us for our acceptance. The observations often conflict ~ince they were made in different contexts and involved the special standing of tbe party claiming the right of appeal. Yet these definitions are not entirely without value for they disclose a certain unani mity on the essential features of this phrase, even in the diversity c.f the contexts. The font and origo of the discussion is the well~ known definition of the phrase by James L.J. in In Re Side It was observed that the words hotham Ex. j. Sidebotham(2). 'person .aggrieved' in s. 71 of the Bankruptcy Act of 1869 meant:

"1not really a person who is disappointed of a benefit which he might have received, if some order had been

(I) L R.

{1959] I Q. B. D. 3P4.

(:') mPO) 14 0. D. 4~8 C. A

874

SUPREME COCRT REPORTS

[1971]1 S.C.lt

made. A 'person aggrieved' must be a man Wh(' had suffered a legal g,rievMJCe, a man against whom a deci sion has been pronounced which had wrongfully depriv- ed him of so111ething or wrongfully refused him some thing or wrongfully affected his title to something.''

·The important words in this definition are 'a benefit which h~ might have received' and 'a legal grievance' against the decision which 'wrong!fully deprives him of somethmg' or affects 'his title to something'.

The definition was held in later r.ases to be not exhaustive and several other features of the phrase were pointed out. Thus Wl der the Bankruptcy Acts, where the Board of Trade summoned to support the validity of the appointment of a trustee, went before the judge, and failed, it was considered a 'person aggrieved' on the prindple th<;tt a person who is brought before the Coun to submit to its decision, but not a person who is heard in a dispute between othe.rs must lJe treated as a ·person aggrieved' (see br Re l.amb Ex., p. Board of Trade(!) per Lord Esher). Her~ again the words to notice are 'brought before the court to submit to its decision', that is to say, a person who is in the nature of a party as contra-distinguished from a person who is next des cribed as 'a person who is heard ir. a dispute between other!'i.' To distinguish between these two positions I may refer to a few more decisions. In In Re Kitson, Ex. fJ. Sugden! (Thomas) & Sons Ltd. e), it was further explained that.

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"the mere fact that an order is wrongly made does not of itse1f give a grievance to a person not otherwise (per Phiilimore J.) aggrieved."

It was added that a person deprived of the fruit~ of litigation F which he had instituted in the hope for them, is a 'person aggriev- . ed'. Similarly, a creditor who did not wish an adjudication order to be made was held not to be a 'person aggrieved'-Sce In Re Brown Ex. p, Debtor v. Official Receiver( 8 ). The utmost that this series of cases goes is to be found in the observations of James L.J. in Ellis Ex. p. Ellis(') that even a rersor.. not bound G by the order of adjudication must be treated as a 'person a~griev- ed' if the order embarrasse.<> him. In a later case ( Tn Re Woods Ex. P. Ditton)(D) Cotton L.J. held that ev~1l so the person must be aggrieved by the very ordl'r and not b-y any of the consequen- ces that en:rue. This was clarified in R. v. London Countv Kee- per.~ of the Peace and Justices( 6

(1) [1894} 2 Q. B. D. 805 at 812. (3) P94~J Ch. D. D. 177. ,(S) [1879] ~0 L. T. 297 C.A. 79.

), by Lord Coleridge C.J: while . .H (2) [1911] 2 K. B. lOQ Rl 1!::·114. (4) [l R76l :! Ch. D. 797. (6) (l ~90] 20 Q. B. D. 357 at ~fi1.

A. P, GANDHI v. H. M. SBERVAI (Hidayatullah, C./.)

875

A

dealing with the Highway Act, denying the right of appeal in these words :

"Is a person who cannot succeed in getting a con viction against another a 'person aggrieved' ? He may be annoyed at finding that what he thought was a breach of the law is not a breach of law; but is he aggrieved because some one is held not to have done wrong ? It is difficult to see that the section meant anythi;ng of the kind. The section does not give an appeal to any body but a person who is by the direct act of the Ma- . gistrate 'aggrieved'-that is who has had something done or determined against him by the Magistrate."

These observations again show that the person must himself suffer a grievance, or must be aggrieved by the very order because it affects him.

Two cases which may usefully be seen in the same context may In Jennings v. Kelly( 1) in relation to the next be mentioned. Government of Ireland Act 1920, Lord Wright did say that if a person was treated in certiorari proceedings as a competent party 3jll,d notice was served on him as being a proper party he would be a 'person aggrieved.' The point to bear in mind is that the person must be treated as a party. However the force of the observation was considerably weakened because the party there was or~red to pay coste; and the·.right of appeal was held to be available on. that limited ground. .. Further qualification is to be found in In Re Riviere ( 1884) 26 Ch. D. 48 where Lord Set- borne observed :

· " .... it must be a leg·al grievance; 1t. must not be a stet pro ratione voluntas,· the applicant must not come merely saying 'I do not like this thing to be done', it must be shown that it tends to his injury, or to his damage, in the legal sense of the word.''

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'lbe locus !Iandi of the person aggrieved must be found from his position In th1 fj!st proce1dlng and his grievance must arit~e from that standing taken with the effect of the order on him.

These cases are of course far removed from the one before me and as Branwell L.J. observed in Robin.rcn v. Curreye) the expression is nowhere defined and, therefye, must be construed by reference to the context of the enactment in which it appears 8jlld all the circumstances, He pointed out that 'the words are ~rdinarily English words. which are to have the ordinary mean mg put upon them.'

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O> rn4J A. c. 206.

(2) [1881] 7 Q. R D. 46~, 470. C. A.

876

SUPREME COURT REPORTS

(1971] 1 S.C.R . .

From these cases it is apparent that any person who feels dis appointed. with tb.e result of. the case is not a 'person aggrieved.' He must be disappointed of a benefit which he would have receiv ed if the or~r had gone the other way. The_order must cause him a legal grievance by wrongfully deprhing him of something. It is no doubt a legal grievance and not a grievance about mate rial matters but his legal grievance must be a tendency to injure him. That the order is wrong or that it acquits some one who he thinks ought to be convicted does not by itself give rise to a legal grievance. These principles are gathered from the cases cited and do not, ·:1s I shaa show later, do violence to the context in which the phrase occurs in the Advocates Act. Although I am awE~re that in Seven Oaks Urban Dz'strict Council v. Twynham( 1) Lord Hewart C.J. uttered words of caution, again emphasised by Lord Parker C.J. in Ealing Corporation v. Jones('l), in applying too readily the definitions given in relation to other statutes but I do not think I am going beyond what Lord Hewart C.J. said and what Lord Parker C.J. did in the case. Lord Parker observ ed:

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" .... As Lord Hewart C.J. poioted out in Seven Oak.; Urban District Council v. Twynam: 'But as has been said again and again there is often little utility in seek~ ing to interpret particular expressions in one statute by reference to decisions given upon similar exprr.ssions in different statutrs which have been enacted alio in tuitu. The problem with which we are concemed is not, what is the meaning of the expression 'aggrieved' in any one of a dozen other statutes, but what i~ its meaning in this part of this statute?' Accordingly, T only look at the cases to which we have been referred to see if there are general principles which can be ex tracted which will guide the court in approaching the question as to what the words 'person aggrieved' mean in any particular statute."

If I may say respectfully T fully endorse this approach. I am now in a position to examine the Advocates' Act but before T do so I must refer to a case near in pojnt to this case. than any considered before. ·

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The case is reported in A ttornev General of Gambia v. Pierri~ Saar N'jie( 8 ) . ' A legal practitioner was held guilty of professional misconduct but was acquitted on apooal and ·an appeal was taken to the Judicial Committee against the decision of the West African Court of Appeal. This involved consideration of

---·-·---------------- (!) [!92Q] 2 K. 1l .140, 443. m 119611 A. c. 617.

(2) L. R. [1959] 1 Q. B. D. J!l~.

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A. P, GANDHI v. H. M. SEERVAI (Hidayatullah, C.J,) 87']

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}. whether the Attorney General 'could be said

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!!rleved'. The facts IIleed to be stated a little ~ lie a person. ag ~ely upon the observations of Lord Denning an~ th as both Sides ey need to be explained carefully. A barrister (a ~eJ?ber of the English Bar) and also a Soli citor. (the. two pro!ess10ns appear to ut: united in the Gambia) 11 prachsl.ng m t~e Supreme Court of the Gambia was charged with professional misconduct and a,n order was. ~ade, September 22, 1958, by the Deputy Judge (~bb?t J.) striking off his name from the roll of that Court, · and d1rectmg that the matter be reported to the Masters of the Bench of his Inn. · On June 5 1959 the West African Court of Appeal (Bairamian, Ag.P, Hurley Ag. C J.A. and Ames Ag. J.A.) set aside the order on the ground that the Deputy Judge had no jurisdiction. The Attorney General of the Gambia thereupon sought leave to appeal to Her Majesty in Council but this was refused. Then a petition was made for ·special leave. Special leave was granted subject to the prel_imi nary objection by the respondent that no appeal lay at the ms£- D once of the Attorney General. The preliminary objection was

rejected.

Sectio,n 31. of the West African (Appeal to Privy Council) · Order in Council 1949 under which special leave was asked

reads :

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''Nothin" in this order contained. shall be deemed to f H ' M 'est upon the humble 1~

."' . mterfere. w1th the ng t o petition of any person aggneved by any Judgm h the court to admit his appeal therefrom UJ?On sue c~>n­ ditions ~ His Majesty in Co\~ncil shall tlunk fit to Im- pose."

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li · barristers and so cl- Io the Gambia disciplinary JUriSdiction over C • rt 1928. Under tors is embodied in Rules of the Supremend 0~ere is only one) those rules the 'Supreme Court' J';!~ge (~ the Court, and Sche- admits and enrols barristers and s.ohcltors du!e I Order 9 r. 7 says that : -

· for reasonab e cause, "The Judge shall ~.:tve powe~iicitor front practi~ing to suspend any hamster or ·S rt for an~· specified within the jurisdic~ion of ilie b~o~truck off the roll .of period, or order h1s name to . court."

· d •1 hears np· In C Then there js the West Afnca~ . ouivil and crinunal matte~k off c Mr Macauley Ms ~cau!ey 1'.:1 l! Peals from the 'Supreme Court 1 • ruled an earlier case in which a cer ~~~ierr:; Leone an~ .f· the roll of the Supreme Court 0 sought to appeal to the Full Court

of West Afnc:t tt wns

rt of Appeal. an

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878

SUPREME COURT REPORTS

[1971} 1 S.C.R.

by the Full Court that the decision of the Chief Justice was not a decision of the 'Supreme' Court' and was, therefore, not appealw able and that the only remedy was "to obtain special leave to appeal to the Privy Coundl (see W. E. A. Macauley v. Judges. of the Supreme Court of Sierra Leone and Anr. (1). The legtslature then added s. 14 which provided :

"An appeal shall lie to the Court of Appeal from any order of the judge suspending a barrister or soliciw tor of the Supreme Cour-t· from practice or striking his name off the roll, .. and for the purposes_ of any such appeal any such order shall be deemed to be an order of the Supreme Court."

The words of the section show that the legislature did not regard a decision in disciplinary· matters as a judgment of a court but only deemed it to be so.

'' ., The Full Court on the appeal <>f N'Jie from the order of the• Deputy Judge held that a Deputy Judge could not. deal with ~y matter which was not a proceeding in the court ill the exerclSe of judicial power. The Judicial Committee held that this was exercise of judicial power. Th~ the preliminary objection was considered. The objection was that the Attorney General bad no locus standi not being a 'person aggrieved'. This was over ruled by the Judicial Committee. -

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Lord Denning referred to the definition of James L.J. in In Re Sidebotham Ex. p. Sidebotham, (2) and said that i.f the defiw nition were to be regarded a~ exhaustive and were held applic able, an 'aggrieved person' would be only a person who wa5 a party to a lis, a controversy inter partes and had a decision given • against him. The Attorney General would not come within this r~st~ic~ed definition as there was iDO suit between two parties when disciplinary proceedings were started ex mero motu by the court or at the instance of the Attorney General or some one auainst a legal practitioner. But the definition of James L.J. \~as not exhaustive and the words 'person a..-o-rieved' were of wide import ~nd should not be subjected to a r~~tricted interpretation. They In~luded not a busy body but certa_inly one who had a genuine gncvancc .bc~ause an orde~ had been made which prejudicially affected bts mtere~ts.. Po~mg the question 'did the Attorney General have a sufficient mterest', the Judicial Committee ::l(ns wered he had. The ~ttorney G~ne!al in a Colony represented the C~own as the guardtan of pubhc mtcrest and it was his duty to bnng before the .Judge a case of misconduct to warrant action. Then Lo~d ~cnmng proceeded to distinguish two kinds of cases to detcrmmc 1f the Attorney General would be a 'person aggriev:

0) L. R. (1928] A. C. 344.

(2) [1880] 40 Ch. D. 458 (C. A.)

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A. P, GANDHI v. H. M. SEERVAl (HidayatuJ/izh, C./.)

879•

ed.' The first was a case where the judge acquitted the practi In such a case no. appeal was open to the Attorney Gene tioner. ral under the Supreme Court Ordinance, and Lord Denning add ed "He has done his duty and ·is not aggrieved". In other words, he did not come within the words of the 31st section of the Order in Council. The Attorney General could not, therefore, ask for !!pecialleaw as a 'person aggrieved', But the case was different if the judge found the practitioner guilty and a Court of Appeal reversed the decision on a ground which went to the roct of the jurisdiction of the judge or was otherwise a point in which the ln that case the Attorney General public interest was involved. was a 'person aggrieved'.

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The observations of Lord Denning clearly meant that the Attorney General could not pose as a ·person aggrieved' to seek to bring a simple case of acquittal for reversal by the Judicial Committee u~nder the 31st section of the Order in Council for he could not be regarded as a 'person aggrieved'. The remark was D made perhaps to repel an argament t~t every case of acquittal would make the Attorney General an 'aggrieved person'. Lord De1ming said that this was not the true position. The Attorney General could only move the judge and there his duty ended. The law gave him •no express right of appeal and he could not daim to be a 'person aggrieved'. He could only invoke the 31st section if he could make out his grievance and it was found to be as a person representing the Crown and the guardian of public interest seeking to get reversed a decision which struck at the root of the jurisdiction of the disciplinary judge, by de,ll'ymg that the Deputy Judge was exercising judicial power under s. 7 of the Supreme Court Ordinance. The Crown was aggrieved by this decision and the Attorney General representing the Crown was an 'aggrieved person'.

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The scheme of the law under which the disciplinary actio.n was taken ·and the appeal to the Privy Council was brought ga.,~ the true connotation of the expression 'person aggrieved'. In those cases in which no question of public interest -was involved the Attorney General even if he had moved the judge and got :111 adver!!e decision could not be regarded as a~grieved but in a case in which, apart from the merits of the case against the practitioner, some grave question of public importance was in the Attorney General representing the Crown could be volved, regarded as a 'person aggrieved'.

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It was presumably after reading this case and un~erstanding tt as I have done, that the Advocate~General set about making

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SUl'REME COURT REPORTS

[1971) 1 S.C.lt

.out a question of public importance. He did not seem only to ;get the decision overturned on facts. This is what he said :

"The appellant has filed this appeal as the Advocate General of Maharashtra. Under the Advocates Act, 1961, (as under the Indian Bar Councils Act, 1926), the Advocate General represe,nts the public interest in every disciplinary inquiry. Under sec. 35 of the Advo cates Act, 1961, the Advocate General is entitled to notice in respect of every disciplinary inquiry, is en titled to have an opportunity of being heard before the disciplinary committee passes any order. This appeal raises very important questions of principle as regards the effect of a conviction of an Indian Advocate of an offence recognised by all civilised countries as an offence involving moral turpitude. The question raised also related to the requirements of natural justice in a crimi nal court, and the effect of the judgments of the Supreme It raises the further question Court on the subject. whether an Indian Advocate convicted of an offence involving moral turpitude by a Court outside India is immune from disciplinary action because of minor dif ferences of procedure in such countries where such trial has been held in complete accord with principles of natural justice. The profession of an advocate 1s. an honourable pro.fession and the disciplinary provisions of the Advocates Act are designed to secure that persons 12uilty of offences involving moral turpitude are subject to appropriate disciplinary action."

It is obv1ous that the Advocate-General has attempted to use the observations of Lord Denning in the Gambia case and wishes to plead that he enjoys a special position in the Bar and under the Advocates Act aJ11d therefore is entitled to appeal as a 'person aggrieved'. This was the line adopted by Mr. M. C. Setalvad, counsel for the Bar Council' of India. On the other hand, Mr. V. S: Desai appearing for the Advocate General argued that the Advocate-General havin~ notice of disciplinary proceed ings, in any event, must be treated as a 'person aggrieved' with I shall consider the nar in ss. 35 and 38 of the Advocates Act. row question presented by Mr. Setalvad latter. I shall first take up for consideration the larger question 'aDd the more general application of the expression 'person aggrieved'.

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In support of his contention Mr. V. S. Desai cited three cases from this Court, one from the Judicial Committee and one from the Bombay High Court. They all relate to disciplinary pro -ceedings and I may begin by considering them.

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A. P. GANDHI v. H. M. SEER VAl ( Hidayatullah, C .J.)

8 81

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The case of the Privy CoWicil reported in Advocate General of Bombay & Ors. v. Phiroz Rusto.mji Bharucha(l) was next cited. It was an application for special leave by the Advocate Oeneral of Bombay in a proceed~g relating to profess1onal misconduct of an advocate. The standing of the Advocate Gt:ncral was questioned. The repJrt in the Bombay Law Reporter Series ( 1 ) reproduces -more fully the arguments than the ufficial report and we were referred to the arguments. The point was not debated and there doe5 not appear to be a pronouncement on this point either during the course of argument or in the judgmem since special leave was refused on another ground. Mr. De~i nys that if the Judicial Committee had found substa"ce in 1his obje: tion they wou:d have ruled out the Advocate General on this ground alone. There is no reason to think that the obj~ti:>n was considered at all. I cannot derive any ass~tance fr~m •b;s ruling because the prerogative of the Crown to grant sp'!cial leave as of grace in any case was always there irrespective of the standi,g of the Advocate General. The Privy Council often granted special leave and even heard apoeals on certificates wrone:lv gran~ed. (See Sevak Jerancho'l Bh'l~i/al v. Dak~re Temple Commir•ee(~) and the case~ co1lected in Halsbury Laws of England ( 3rd Edn.) Vol. 9 p. 380 paragraph 886 note (h). Thi" p"er'1tzative the Judicial Committee has exercised on behalf of the Crown parti cularly in cases of general interest see ibid o. 379 s. 8R5 note (:.). / The provisions of the fonner s. 112 of the Code of Civil Pr"ce"'ure show the extent of the prerogative. Therelore. becauc;e the Privy Council refused soecial leave on one ground rath~r th~'l'l an0ther ca~not imo"rt a rejection of the objection as to the standing or the Advocate General.

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Next we have all unreonrteti decic;ion of a Divi~ion Bf'nch of · this Court reported in B. M. Madani v. Commi~s;,mer of Work- F men'~ ComoPnsatinn. Bombav( 8 ). Tn that case the aooeal was taken bv the Commissioner for enhancement of ~naltiec; :nraim:t the <ieFnquent arivnca•e an-1 the penalty wa~ in· fact incre1'\ed. Th;s Court held that he w~ts entitled to cfo so as a 'perc;on a~2rieved'. The particu1llr misconduct was c"Tnmitted in relation to a c'ai m~nt bef'ore the Commiss;oner. The Ativ~cate ha-i P"Cketed the · trave1Jlne allowance graY~tP.d by the Commissioner t"l •he w:dow of a decelis~d workm~tn. There m~v be some doubt wl-!e1her the Commic;sioner wac; a ·~non a22rieverf• by the nef'lfl1tv imoosed in the first insta'1ce hut I do not nursue tltis matter The case can be justified on the dictum in some cas"'s that a partv which mMe~ the c"~urt or a pe"S"n br"~Uf!h• bef,re th~ cnurt fo b~> b,u.,d bv its order m~v b~ a 'nerson aagrieved.' See for ex:~mol .. th~ c~se of the O:fJHal Receiyer in Re Pa;vne Ex p, CtJSfle Mail Packets

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(t) 37 Born. L. R. 722 (PC) f3' C. A. 877 of 1968 decided on October 10, 1968.

(2) A. J R. '9"'5 P. C. ISS.

L USSnp.Cf{P)'7l-12

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[ 1971] l S.C.R.

I'

Co. ( 1), and ln Re Lamb Ex. p.: Board of Trade already con.sider ed by me. Madani's. c.ase ·doe.s not help to resolve the dispute centring round the Advocate-General.

The next case is reported in Bhataraju Nageshwara Rao v. The Hon'b/e Judges of tlie Madras High Court and others(2). That case .qrose under the Bar Councils Act, 1926 when the Judges exercised disciplinary power. In the case before the Supreme Court the Judges of tl~e Madras High Court were shown as res pondents. This Court observed at page 1064 as follows :

"Before parting with this appeal we desire to say that it appears to us that it was wholly wrong and inappro priate for the appellant to have made the Ho.nourable Judges of the Madras High Court respondents to this appeal. It appears that in some cases involving con tempt of Court the Honourable Judges have been made_ It is not necessary for us to express any opinion • parties. on this occasion as to the propriety. of that procedure in contempt cases but we are clearly of the opinion that in an appeal arising out of a proceeding under the Bar •. Councils Act the appropriate par_ties should be the advo cate concerned, the complainant, if any, the Bar Coun- cil or the secretary thereof and the Advocate General o.f the State concerned to whJm notice have to be issued under sectiop; 12(3) of the Indian Bar Councils Act."

This does not advance the case of the Advocate General of Maha rashtra any further.

The last case of this Court is Municipal Corporation of the City of Bombay v. Chandulal Shamaldas Patel and Ors.( 8 In land acquisition cases started ·for the benefit of the Municipal Corpora tion certain notifications issued under the Land Acquisition Act were set aside by the High Court, and the Municipal Corpora tion sought to appeal. It was held not to be a 'person ag~rieved'. This case, even if I were to accept it as correctly decided, does not assist us in relation to our Act passed with a djfferent intent and purpos~ and using the words in another context.

).

The last case is from Bombav but it did not discuss the point It is useless to

and cannot be held to have laid down a precedent. refer to it.

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I i>vw proceed to examine the larger question whether by rea son of the provisions of the Advocates Act the AdvOcate General of the State enjoys such position that he must necessarily be treat-

H

0) [1886] 18 Q. B. D. 154 C. A. (3) C. A. No. 1716 of 1967 decided on August 1, 1970.

(2) [1955] 1 S. C. R. 1055.

A. P. GANDHl v. H. M. SEERVAI (Hidayatullah, C.J.)

883

. A

ed as a 'ptrson aggrieved' entitling him to file an appeal. For this purpose we have to examme critically the provislOns of the Act to discover if the claim can be entertained.

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The· Advocates Act wa~ passed to amend and consolidate the law relatmg to legal practitioners and to provide for tne consti tutiOn of ..tSar Coulficsls and an All India Bar. lt replaced the car11er Acts governing the legal profession particularty the Indian Bar Councils Act 1 ~26. Pnor to the passmg of the Advocates the enrolment and discipline o.f legal praclitioners was in Act, the hands of the courts and in the case ot the aavocates the High Court enterta~d and deternuned cases of misconduct agamst them. Now this jurisdiction is completely transferred to the Bar Councils of the States and the Bar Council of India. In the Bar Councils of the States {except Delhi) the Advocate-General of the State is an ex officio member. In Delhi the Additional Soli citor.:cJeneral takes the place of the Advocate-General. Other members are elected. In the Bar Council of India, the Attorney General and the Solicitor-General are ex officio members and the other members are elected one each by· the State Bar Coun In· the Union Territory o.f Delhi the Additional Solicitor cils. General is ex officio member. The functions of the Advocate General are not different from those of the other members in so far as the affairs of the Bar Council are concerned. The only matters where the Advocate-General, the Attorney-General and the Solicitor-Geneml and the Additional Solicitor-Gen:cral are mentioned are these. The Act gives a right of pre-audience over other advocates to the Attor,ney-General, the Solicitor-General, the Additional Solicitor-General and the Advocate-General. The right of pre-audience gives them a standing for hearing of cases but does not confer on them any other rights. The magnilo quent phrases such as Leader of the Bar, Keeper of the Cons cience of the Bat have no meaning neither now, nor before under the Bar Councils Act of 1926. They are just honorific titles given by courtesy but are not grounded on law. Indeed the Keepers of the Conscience of the Bar are the Bar Councils and the Leader of the Bar mav be someone who may even have refus ed to accept Advocate-Generalship.

The functions of the Bar Councils of the States and the Bar Council of India throw some light on the remaining functions of the Advocate-General and mav first be seen. Section 6 of the Act Iavs down the functions of the State Bar Council and s. 7 thoc;e of the Bar Council of India. Apart from certain adminis trative functions which· these councils, which are bodies corpo rate, perform, tbeir functions in relation to the Bar are so~e· what different. Both have their own rolls and they prepare a~ ,.

884

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(1971) 1 S.C.k.

maintain the rolls. ·The 'State Bar Cotmcil entertains and deter ID..Ull!s cases of nlliconuuct of advoc4tes on iLs roil and saieguarJs the ngats, pnvLeges and interests of a ... vocates on 1ts roll. The I:sar council of .10-.lla iays oown Lhe s.andaras of pro~ess10nal con duct and eLiquetle of advocates, the procedure to be tol.owed by its OlSCtpJlllary COillilllttee and the disc,plinary committee of each of the State Bar Councils. The Bar Council of tndia al~o safeguards the. righ.s and privileges and interests of advJcates and exercises general supervision and control over State . Bar Coun cils. It also aeals with and disposes of any matter arising l!,nder the Advocates Act which may be referred to it by a State Bar Council. There are other fl.llUCtions which relate to the ejucation etc. ofthose who wish. to join the legal profession. The Bar Council. of India maintains a c~mmori roll of advocates. The Bar Councils also decide in relation to their rolls all questions of sen~ority. The State Bar Councils and the Bar Council of India constitute one or more disciplinary committees and under Chapter V questions of the conduct of advocates on their respective rolls are referred to them. The disciplinary committee of the Bar Coun cil of India exercises superi::>r powers inasmuch as it hears appeals from the orders of the disciplinary committee) of the State Bar Counci's and may even of its own motion withdraw for inquiry befo"e itself for disposal, any pro~eedin()'s for d'scip'inarv action against an advocate oendi11g before the uisciplinary committee of any State Bar Council.

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the The disciplinary proceedings commence both before State Bar Council and the Bar Council of India on a cotnp1aint or otherwise made respective1y to the State Bar Council or the Bar Council of India. The B·u Counci15 in either case re~er them for disposal to their respective disciplinary committees. The disciplinary committee in each cac;e can reject the compl'~int sum marily, but if it proceeds to hear the matter ,further it causes a notice thereof to be sent to the advocate conc-erned and to the Advocate-General of the s·a•e or the Attorney.Qeneral of Tndia, as the case mav be. The discio1ina'"V committee after giving the advocate concerned and the A-ivocate-General or the Attorney General, as the c-.:tse may be, an opportunity to be heard, makes an order ei•hel' dismissinq the complaint or where the proceedi.,gs are found to be not fit for consideration a,nd are started at the instance of the Bar Council, orderin<t that they may be flied. The ~mmittee may, if the advoca~e is found guilty, reorimand h;m or suspend him frnm pr~c·ice for such period as it del!ms fit, · or mav remove him altogether from the roll of advocates. The Advocate-General or the Attomey.Qeneral, as the ca')e may be, need not appear personally but may appear through an advo- · cate.

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A. P, GANDHI v. H. M. SEBlt'MJ (fHidayatullah, C./.)

885

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From .the decision of the disciplinary committee of the State Bar Couuc!l an appeal nes 10 tne .tSar Councu of maia wmch is heard oy tne <l1SC1p11nary COIDllllttee of the .tlar Council 01 in~.ha wmcn may pass sucn oroers thereon as it deems fit. .from tne ctects1on or tnc ct1scip1mary commtLtee of the Har Council of mdia an appeal 11es to tms Court. The appeals can be taken by a 'person aggnevect' by the oroer of the <hscip.iHary commirtee of tne State oar Council or the Bar Cou,ncil of lndia, as the case It is in this context tnat we have to determine whether may be. the Advocate-General can be regarded as a 'persJn aggrieved'.

In view of the common roll maintained by the Ba.r Council of India it appears to me that if anybody represents the Bar it would be the Bar Council of India and in the case of the States, the Bar Council of the State. 'The Advacate-Genera1 has no right to speak on behalf of the body of the advocales as if he represented them and their interests, Neithe~ is this privilege expressly conferred on him, nor can it be · implied from any of the provisions of the Act. The question, therefore, aflSes : in what capacity does the Advocate-General appear before a discip· linary committee? It is obvious that he is not a prosecutor on behalf ol the Bar Council because if he was one, his presence would be more necessary at the stage at which the discip inary committee considers in limini to decide whether the matter should be proceeded with ·at all. The next question is : why is he sum· maned at all ? In my opinion, the Advocate-General is not noticed and brought before the court because he is a prosecutor or is to be bound by the order of the disciplinary comm1ttee. He represents no interest there and is heard merelv because h~ is the chief counsel of the State and therefore his assistance at the hear. in~r is use+'ul. The fact that he need not appear bv himself and may ap!)ear throuv:h an advocate renders his position a little weaker In the matter of his grievance. Lf he 111 to be tre·,ted as a •person aggrieved' he must a"gue the case himself. The fact that he appears throug;h a counsel shows that the intention is merely to have the opinlon of a person who iq neither sidinsz with the comolain~nt nor with the advocate and who w:n thus have un· biased anrJ impartial aoproach to the cal\e. The Advocate-Gene ral is genera11v a Iawver of some standine: havi.,!! marie a mark in the profession and his contribution to the deliberatinnc; of the discin]inarv committee ic; welcnme becau~e thu~ the· disciplinary committee is helped to reach a proper conclusion.

If he ic; not a person summoned to be bound by the order but a person who is hearrl in a dic;nute b"tween others merelv to be of assistance in reachiM the ril!ht conclusion he can hardlv have a ~rievanct. The Anvocqte-General must a.f•er he has done his duty leave the matter to the ~omplainant and the advocate or the

886

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[1971] 1 S.C.R.

- tion to hear the case.

Bar Council to take the matter further if they choose. In no event the AuvocaLe~General is in the nature of a pany having indepen~ dent nghts wh1ch he can c1aim are injured by the decision. The decis'ion does not de)ly him anything nor does it ask him to do It is thus that Lord Denn.ng says that in these disr.ipli anything. . nary proceedings the Attorney-General is not a party as in a lis . and after the aecisio.n, hlli duty end£. Lord Denning points this out clearly by saying that the Attorney~General in that case could not have been aggneved by the order of the Deputy Judge if he had acquitted the delinquent advocate in. that case The Attorney General's interest was found by Lord Denning 1n relation to the . Crown and the Colony and that too for the special reason that appeal court had denied that the Deputy Judge possessed jurisdic- In our country the Aovocate-General do.!s not represent the Exec\ltive or the Legislature or the Judiciary in Aiiscip!Jnary proceedings before the disciplinary committee. His function is advisory and more akin to an amicus curiae. He is not to take sides except in so tar his arguments lend weight to the case of the one side or that of the other. Beyond that he is not interested in the dispute either in his personal capacity or in his capacity as an Advocate~General. He does not represent If the Government was the Government in these proceedings. Irr other statutes, interested the notice would have gone to it. where .the Central Government is vitally i·n!terested, as for exam- . ple, in the Chartered Accoimtants' Act, the notice does not go to .the AdvocatewGeneral but to .Government and the government appears through the Advocate-General. The Advocate-General under the Act finishes his duty whert the hearing is over and he cannot be considered to be a party interested or a 'person aggriev I do not find anything in the Act which indicates that the ~.d' . · Advocate-General is to be treated as a person aggrieved' by · a decision whether in favour o£ the advocate or against biro. Indeed it would have been the eas;est thing to give a ri~ht ot aopeal to the Advocate-General eo nomine without including him in the comoen- · dious phrase a 'person ag~rieved'. If he is not noticed, the order would be held to d~nv him something which the law entitled ,him to. That is quite d=fferent. The lareer·propOsition contended for by Mr. Desai is therefore not acceptable to me.

This brings me to the narrow ground on which Mr. Setalvad very properly rested the case o.f the Bar Council of India. That · narrow ground is that in this case there were several points of general oub1ic interest which needed to be solveci and therefore. if the decision of the discirtinarv committee of the State Bar Coun ci1 wac; wrong, the Advocate-Gen~ral in the public i'nter-ec::t could I do riot think that I r~n subscribe to take the matter further. this aonr11ach either in thi.,-c!lse. The Adv'"'c:lte-Gener~l nre~;ont­ ed his views that a conviction in England showed moral turpitude ·

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A. P. GANDHI v. H. M, SEERVAl ·(Hidayatullah, C.J.)

887

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I do not think that this .inference necessarily fol in the advocate. lows. The advocate explained that he was held guilty in a sum mary court and· received a small fine b~cause he was not in a position to prove his innocence before the Magistrate.

Now in disciplinary proceedings the advocate was not estopped from questioning the charge that he was guilty of corrupt practice. . In a civil proceeding the decision of a criminal court is not res judicata. To give an examplet ·if a person is involved in a traffic offence in which some one is injured he inay in the criminal court receive a light Stintence but if he is sued in a civil court for heavy damages he can plead and prove that he was not negligent or that accident was due to the contributory negligence of the defen-. dant. The decision of the criminal court would not preclude him ftom raisV1g this issue before the Civil court.

The advocate here explained .that he was held guilty. before the Magistrate in the circumstances i.n which he was placed. The fact of his conviction, as well as his full statement bearing on his conduct were before the disciplinary committee of the State Bar Council. They had to choose between the two, that is to say, the, result of a summary trial without going into merits and proof of.' the misconduct. Having examined the advocate and seen the r~ cord, the disciplinary committee. of the State Bar Council chose · to accept the plea of the advocate and held that he was not guilty. They were also satisfied that the surimiaiy proceedings in the cri minal trial in England offended against the principles of natutar justice. They were entitled to this view on which much can be said on both sides. If the Advocate-General's view of the case was not accepted by the disciplim1ry committee he could not>bave any grievance. He could not make this into his own cause or a cause on behalf of· persons he did not represent. He had done his duty and the matter shou1d have rested there. For this reason I am of the view in this case the Advocate-General was not a 'person ag~rieved' within the meaninl! of s. 37 of the Advocates Act even on the narrow ground and the appeal fi1ed by him before the disciolinary committee of the Bar Council of India was incompetent.

The conclusion which 1 have reached does not mea.n that I have !!One into the merits of the advocate's plea. Nor does it indicate that I, sittinq a5 a ju<ige, would have accented the plea of the advocate, if I were to decide the ca<;e on facts. That is a matter quite beside the point. I refer to the ple::~ ~r~u<;e it was ra~"ed and was accepted by his peers on the disciplinary · com mittee.

T wnHH. therefore. 31lnw the aoMal ::~nl"l ~et ~r;:in~ the order

of the disciplinary comiJiltee of the· Bar Council of Inttia.

888

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[1971] 1 S.C,R.

Mi*r, J~ _ On t.be besis of a· news item in th,e 1,'imes ·of India of August-'P, 1966 the Bar Council of Maharashtra in exercise of its powers under s. 35 of the Advocates Act, 1961 issued a :notice to the appellant to face an inquiry into his conduct by its discipli nary committee. The said committee exonerated lh~ appellanr of lhe charge levelled against him and held that he was not guilty of any misconduct, professional or otherwise. Relying on the provi sions of s. 37 of the said Act the _Advocate-General oi Maharashtra who had appeared before the said- committee preferred an appeal 'to the Bar Council of India. The DiscipJinary Committee of the Bar Council of India dis.a_greed with the finding of the disciplinary committee of tbe Bar Cowlcil of Maharashtra observing that lhe

conduct of\ the awe••• which was investigated into before the

State Bar ~il was quite undmerving of an advocate and directed his suspension from practice for a per~od of q_ne year. The appellant has come up in appeal to this Court and has urged · a prelimmary point that tbe appeal by the Advocate-General to the Bar Council of India was incompetent and the finding and order of the disciplinary committee of the said body ought to be &et aside on that ground alone without our going into the facts of the case.

Notice of this hearing was given to the A~vocates-General and the Bar Councils of all the States as also the Attornej.'-General of India and we have had the benefit of arguments advanced before us not only on behalf of the Advocate-General for the State ()f Mahara~htra but also on behalf of the Bar Council of India, the Attornev-Genernt of India and some of the Advocates General of the Stnte!i.

The determinntion of thill question depends on the interprets· tion of s. 37 of the Advocates Act. 1961 (hereinafter referred to a~ the 1Act') :-

"( 1) Any per~on ngg1·ieved by un order of the disci plinary committee of n State Bar Council made under section 35 may, within ~ixty days of the date of the communication of the order to him. prefer an appeal to the Bar Council of Indin.

(2) Every such appeal shall b~ heard by the discipli nary committee of the Bar C.ouncil of India which may pass such order thereon <ts it deems fit. ..

To put the matter in a nut-~hell the question is, "Is the Advocate General of a State who appears before the disciplinary committee of a State Bar Council in pursu<mce of a notice given to him under s. 35(2) of the Act 'a person aggrieved' within the meaning of the words used in 'i. 3 7 ?"

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A, P. GANDIU v. H. M. SBBRVAI (MiNer, 1.)

889

To decide this question we have to look into the Act to find out the role of the Advocate-General of a State in proceedings of thi~ kind. The object of the Act is to amend and consolidate the the law relating to legal practitioners and to provide for the constitution · of Bar Councils and an All-India Bar. All States and the Union territories are to be under the jurisdiction of named State Bar Councils and there is also to be a Bar Council of India for the territories to which the Act is extended. Gene rally speaking a State Bar Council is to consist of a number of members inc'uding the Advocate-General of the .State e." officio, while the Attorney-General of India ex officio is to be a member of the Bar Council of India. The other members of the Bar Councils art: to he elected in terms of the Act. Under s. 6 the functions of a State Bar Council are to be inter alia :-

(a) to admit persons as advocates on its roll: (b) to prepare nnd maintain such roll; (c) to entertain and determine cases of mis-conduct

against advocates on its roll.

S. 7 Jays down the functions of the Bar Council of India which are to be Inter alia :

(a) to prepare ond maintain a common roll of advo

cates:

(b) to lay down standards of professional conduct

and etiquette for advocates; and

(c) to lay down the procedure to be followed by its the disciplinary .

disciplinary committee and committee of each State Bar Council.

Under s. 9 n Bnr Council hn~ to constitute one or more disci plinary committees each of which is to consist of three persons of whom two are to be persons elected by the Council from amonp;st its members nnd the third is to be a person co-ooted by the Council from amon~st advocates possessing the qualifications specified in the proviso to sub-s.(2) of s. 3 but is not a memher of the council. S. 15 empowers Bar Counci~ to make rules the Act to carrv out the purposes of the Act. Chaoter III of containing ss. 16 to 28 provides for admission and enrolment of advocates. the determination of their senioritv etc. The right of an e1dvocate to practice is dealt with in Chaoter IV. Chapter V which contains ss. 35 to 44 deals with conduct of advocates. The relevant provisions thereof are set out as under-

• "35(1) Where on receipt of a comol<~int or other wise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or

890

SUPREME COURT REPORTS

[1971] 1 S.C.R.

other misconduct, it shall refer the case for disposal to its disciplinary committee.

(2) The disciplinary committee of a State Bar Council, if it doe_s_ not summarily reject the complaint, shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate con~ cerned and to the Advocate-General of the State.

(3) The disciplinary cornmittee of a State Bar Council after giving the advocate concerned and the Advocate~General an opportunity of being heard, may make any of the following orders, namely : -

(a) dismiss the complaint or, where the proceed ings were_ initiated ai. the instance of the State Bar Council, direct that the proceedings be filed;

(b) reprimand the advocate;

(c) suspend the advocate from practice

for

such

period as it may deem fit;

(d) remove the name of the advocate from the State

ro11 of advocates.

(4) (5) Where any notice is issued

General under sub-section may appear before the disciplinary committee of State Bar Council either in person or advocate appearing on his behalf.

the Advocate (2) the Advocate-General the through any

to

37. Supra.

38. Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under section 36 or section 37 may, within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order thereon as it deems fit."

S. 42 gives the disciplinary committee of a Bar Council the same powers as are vested in a civil court under the Code of Civil Procedure in respect of various matters including the summoning and enforcing the attendance of any person and examining him on oath, requiring discovery and production of documents etc. and under sub-s. (2) all proceedings before a disciplinary com mittee of a Bar Council are to be deemed judicial proceedings within the meaning of sections 193 and 228 of the !ndian Penal

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A. P. GANDHI V. H •. M, .SEERVAI (Mitter, J.)

891

Code.. S. 43 empowers the disciplinary committee of a Bar Council to make such order as to costs of any proceedings before it as it may deem fit. S. 44 gives the disciplinary committee power to review any order passed by it of its own motion or otherwise.

The above provisions of the Act make it clear that subject to a right of appeal to this Court under s. 3.8 the inquiry into charges of misconduct against ap. advocate are to be in the exclusive jurisdicrion of the Bar Councils. Any complaint against the cu_nduct of an ~dvocate has to be preferred before a State Bar Cuunc1l and when the council has reason to believe on the strength o.f such complaint that an advocate on its roll has been guilty of profes sional or other misconduct, it has to refer the case for disposal to its disciplinary committee. The council cari take such a step of its own motion. Section 35(1) shows that it is not obligatory on the State Bar Council to refer each and every complaint to It has to be satisfied that there is a the disciplinary committee. prima facie case for investigation. It can throw out a complaint if the same appears (O be frivolous. Sub-s. (2) of s. 35 shows that it is not incumbent on the disciplinary committee of a State Bar Councii to proceed further with the matter if it takes the It is not obliged view that the complaint is without substance. to call upon the advocate concerned to explain his conduct or to inform the Advocate-General that it has rejected the complaint It is only when the disciplinary committee is satis summarily. fied that the complaint ought not. to be rejected out of hand that it has to fix a date for the hearing of the case and give notice thereof to the advocate concerned and to the Advocate It is mandatory on the disciplinary com General of the State. mittee to give such a notice to both. Sub-ss. (3) and (5) of s. ~5 go to show that it is not incumbent on the Advocate-General to appear at the hearing and that it is within his discretion to appear either by himself or through another advocate of his choice and place his viewpoint before the disciplinary committee. He is not a party to the proceedings but he has a right to appear and to make submissions ' both on questions of fact and ques- tions of law.

·

S. 37 does not in terms lay down who can· prefer an appeal from t_he order of the disciplinary committee of the State Bar Counctl. There can be no doubt that the advocate agianst whom an order is made would be a person aggrieved. The State Bar. Council cannot be such a person as the order is mad~ by 1tsel~ acting through its disciplinary committee. A member of ~he public may make a complaint to the State Bar Council ag~mst an. adyocate on the ~round of loss or damage or any senous oreJudtce caused to htm by the advocate, be it negligenc~ or fraud e.f?. collusion with the opponent or misappropriation of

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SUPREMn COURT REPORTS

[1971] 1 S.C.R.

any moneys belonging to him and there does not seem to be any justifying cau5e for holding that he is not a person aggrieved by an order which dismisses his complaint.

The question arises as to whether the Advocate-General is n person aggrieved because the disciplinary committee does not take the snme view of the matter as himself, be it for or against the advocr.te. To place the AdYocate-General in the category of "person aggrieved" one must be able to say that the discipli nary committee committed an error which it was his duty to attempt to set right because of some function attributable to him as the Advocate-General or some obligation cast upon him by the Act or the general Jaw of the land to safeguard and mamtain standards of conduct of advocates laid down by the Bar Council of India.

Generally speak.rig, a person can be said to be aggrieved by a11 order which is to his detrimentt pecuniary ·or otherwise or r.auses him some prejudice in some form or other. A person who is not a party to a litigation has no right to appeal merely berausc the judgment or order contains some adverse remarks against him. But it has been held in a number of cases that a person who is not a party to suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the jud~ment would be binding on him under Explana tion 6 to ~ect1on 11 of the Code of Civil Procedure. We .find ourselves unable to take the view that because a person has been given notice of some proceedings wherein he is given a right to appear and make his submissions, he should without more have a right of appeal from an order rejecting his contentions or submissions. An appeal is a creature of statute and if a statute rests exoresslv ~ives a person a right to appeal, the matter there.

Innumerable statutes both in England and in India give the right of appeal to ua person aggrieved" by an order made and the provisions of such statutes have to be construed in each case to find out whether the person !ll'eferrine an appeal falls within that expression. As was observed in R"bimon v. Currey( 1 ) the words "person aggrieved" are 'ordinary English words which are to to have the ordinary meaning nut uoon Halsbury's Laws of England (Third Edition, Vol. 25) page 293 foot-note "h" :

them'. According

"The expression is nowhere defined

·and must be construed by reference to the context .of the enactment in which it appears and all the circumstances :"

(I) 7 Q. B D. 465.

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• A. P. GANDHI v. H. M. SEERVAr (Mitter, J.)

993

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Attempts have however from time to time been made to define In Ex parte Sidebotham In re the expression in various cases. Sidebotham(l) it was observed by James, L.J. ·

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"But the words 'person aggrieved~ do · not

really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'pen;on aggrieved;----must be a man who has suffered a legal grievance. a man against whom a deci- sion has been pronounced which has wrongfully depriv ed him of something, or wrongfully refused him same thing, or wrongfully affected his title to something.''

The above definition of James, L.J. was described by Esher, . M.R. in Ex Parte Official Receiver ln Re Reed, Bowen & Co.(2)

as not "an exhaustive definition". His Lordship added :

"It is an affirmative definition of a person who may appeal, and at all events it includes a person who has asked for a decision for which he had a right to ask. and has been wrongfully refused."

The Queen. v. The Keepers of the Peace and Justices of the County of London(3) was a case of an appeal by an informant against the judgment of a justice of lhe peace upon the he~ring of an information or complaint by the vestry of the parish against a person for unlawfully and wilfufly obstructing the free passage of a certain highway. The relevant section provided:

"If any person shall think himself aggrieved by ... any order, conviction, judgment, or determina tion made, or by any matter or thing done by any justice or other person in pursuance of this Act .... such person may appeal to quarter sessions:·

In holding that an informant had no

· Coleridge C.J. said:

right of appeal Lord

. ."Is a ~rson who cannot. su~ceed in getting a con VIction agamst another a 'person . aggrieved ?' He may be annoyed. at finding that what he thought was a breach of law 1s not a breach of is he 'aggrieved' because some one is held not to have done wrong ? It is difficult to see that the section meant anything of that kind."

law; but

'

D poration( 4

In Rex v. London Quarter Sessions Ex parte Westminster Cor ) a borough council whose cance.lation of the regis tration of a street trader had been reversed by a magiStrate on

(1) 14 Ch. D. 458 at 465. (3) 25 Q. B. D. 357, 361.

(2) 19 Q. B. D. 174 at 178. (4) 512 K. B. 508

S9-!

SUPREME COURT REPORTS

[19 7! 1 1 S.C.R.

appeal by the trader concerned under s. 25 of the London County Council (General Powers) Act, 1947 · was held not to be a person aggrieved by an order of a court of summary jurh,diction within the meaning of s. 64 of the Act. The argument advanced on behalf of the corporation was that it had a public adminis trative duty to perform in the regulation of the streets and rtaving been interfered with in the execution of that duty by the deci sion of ·the magistrate, they were persons aggrieved by his order. app~ication by Lord One of the grounds for refusal of Goddard, C.J. was that the order made did not directly affect the borough council in such a way as to make them "a p~r~on aggrieved" within the meaning of the section. According to the learned Chief Justice what the statute did was "to substitute th~ opinion of the magistrate for the opinion of a borough council". It was said that the court of summary jurisdiction had to take . into account the same :matters as the borough council had to take into account, and if the court thinks that the cancellation the of the licence is not justified, it can restore the licence street trader. If the court of summary jurisdiction refuses to grant a licence, then the street trnder is a person aggrieved, be ~ause his livelihood is affected, or an order is made dlrectlv - affecting him.

the

to

The case of Sevenoaks Urban District Council v. Twynam(l) was relied upon by counsel appear1ng for the Advocate-General of Maharashtra to support his argument that even a person ..;ho had no proprietary or pecuniary interest in the subject matter of the litigation might be a person aggrieved so · as to give him a right to appeal. The statute in this case was however worded very differently from the statutes which came up for considera tion in the cases noted ea'rlier. S. 68(1') of the Pubiic Health Act. 1925 laid down that:

"Where for the purpose of relieving or· preventing congestion of traffic it appears to the local authority to be necessary to provide within their district suitable parking places for vehicles"

then that authority may, subject to certain conditions, provide those parking places and might acquire land suitable for use as a parking place. The proviso to the section however laid down. that no such order shall authorise the usc of any part of a street so as unreasonably to prevent access to any pr~miscs adioin ing the street, or the use of the street by any person entitled to be a nuisance, or be to the mad~ in the c;f consent

respect of any part of -a street without for

the authority or persQn

thereof, or so as

responsible

the use

([) f19:!9] 2 K. B. 440 at 444.

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c

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A. P. GANDHI V. H. M. SEE!:lVAI '(Mi~ter, J.)

8\-!5

for

maintenance of the street. Sub-s. ( 2) of the section provided that where a lccal authority proposes to acquire 1and the purpo~c of using it as a parkillg place th~y are to give notice of the proposal specifying the land and notify the date within which any objection is to be sent to them and the notice is to state that a right of -appeal was conferred by the section. Sub-s. (3) provided that before carry1ng into effect any proposal of which notice was required to be given the local authority shall consider any objection which was sent to them in writing. There was no limit there as to the kind of person making the objection or the kind of objection which might be raised. The respondent, a rate payer, duly gave notice under sub-s. ( 3) on various grounds but he did not allege the infringement of any personal legal right and he objected in his capacity as a ratepayer and as a member of the public on grounds common to them all. The urban coun cil considered the objection and informed him of their decision to proceed with the scheme. The respondent appealed to petty sessions which allowed his objection. The appellant appealed to quarter sessions and took the'_preliminary objection that the res pondent was not a person aggrieved because he ·had alleged no infr~ngement of any legal right\ personal to him.

Referring to the dicta of Jalues L.l., Esher M~R. and Lopes

L.J. in the above cases Lord Hewart C.J. observed:

the

"I think this respondent did ask for a decision for which he had a right to ask. He did give notice of an objection of which he was entitled to give notice, ... but the person making the objection is not to have an appeal u\llless he satisfies two conditions : (1) that he is the author of the objection, and (2) that he is ag grieved by refusal in the sense that he has a special and individual right infringed. . It seems to me that upon the fair construction of this sub-section, which is by no means a common kind of statutory provision, what is meant is that a person .may make an .objection ~nd is entitled to a decision upon it, and .if the decision 1s adverse to him, he may, if he thinks fit and subject to . ~he usual consequences, a~peal from it to a petty sessional court, and so appeahntz, may, in consequence of other statutory provisions. appeal. if need be. to the court of quarter sessions.''

According to A vary J. :

''There is no limit there [in sub.s. (3)] of the kind of person or the kind of objection which mav be made. 1t proceeds that after so considering the objection, they

l

896

SUPREME COURT REPORTS

[1971] J S.C.R.

are to give notice of their decision to the person by whom the objection was made, and any person who is aggrieved by such decision may appeal. I cannot he.p thinking that on the plain words of that statute it was intended to give a right of appeal to any person who has made an objection to the proposal and has received ~otice that that objection has been overruled." In Ealing Corporation v. Jones( 1) Lord Parker C.J. remark ed that it was easier to say what will not constitute a per~on aggrieved than it was to say what "person aggrieved'' included. He observed that a person was not aggrieved wh~n being a public body it had been frustrated in the· performance of one of its pub lic duties. He amplified this by saying that ~

''I( costs have been awarded in a case against a local authority, it is clear on the authorities the local authority would be an aggrieved· person. Equal y, if the result of the decision has been to put some legal burden on the public body concerned, that has been held to make it a person aggrieved." According to D~novan J. in the same case-

that

"The word 'aggrieved' connotes some legal grie vances, for examp!e, a deprivation of something, an adverse effect on the title to something, and so on, and I cannot see that this is so here. The local p1an ning authority has simply been told that it cannot en force the discontinuance of the prese11t use of this land by the appe'lant by means of an enforcement notice under s. 23."

If one is to be guided merely l;>y the provisions of .the Advo cates Act it is difficult to see how· the Advocate-General can be a person aggrieved because the State Bar Council takes the view, whatever be its reasoning. that an advocate on its roll h1s not been guilty of anv misconduct. The entertaining of C"mplaints, the inquirv into them and the punishment to be meted out to the advocate are a]] co11cerns cl the Bar Council. The Arlvocate General no doubt is entitled to a hearing if the complaint is not rejecteti summarily. The statute exoects him to take a fair ~nd impartial attitude. He has to render all assistance to the Bar Counci1 so that a proper decision mw be arriverJ at. Rio:; ro 1e is not that of a prosecutor: nor is he a defellce counsel on in 1!et behalf of ting the advocate nunished any more than he is interested in seeing that the charac+er of a fe11~"~w member of the Bar is cleared even if his conduct be unworthy of an advocate.

the advoc~te. He

interested

is not

(1) [1959] 1 Q. B. 384 at 390.

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A. P, GANDHl v. H. M, SEERVAI (Mittel, J.)

897

The Act does not make it obligatory on him to take part in the proceedings where he thinks that the facts of the case are so plain that his assistance is not called for. It is only when he feels that a case requires ·a careful investigation and proper elucidation of the facts or the exposition of the law on the subject that he is cc.tlled upon to render all assistance in the proceedings. When he chooses to do so he does his duty by appearing at the hea~·ing and putting before the disciplinJry committee the fJcts in tl1eir proper perspective and advancing the proper inference to be drawn there from. Once he does so there is an end of the matter so far as he ;~ concerned. He cannot have any grievance because the deci sion cf tJie Bar Council is against his submission or not to his likmg.

The yuestion then arises as to wh~ther any duty is cast on the Advocate-General by reason of his position to question the decision of the Bar Council if he feels it in the general interest of the mem bcrs of the Bar or a wider public to do so. Art. 165(2) of the Comtitution epito~nizcs the functil;ns and duties of ,the Advocate-General in the following words : -

"!: shalt be the duty of the Advocate-General to give .:1dvi-..c to the Government of the State upon ~uch legal matters and to perform such other duties of a leg<~l c!1aracter, as may from time to tim.; he referred or as signed to him by the Governor and the functions conferred upon him by or under the Constitu tion or any other law for the time being in force."

to discharge

A notable instance of his statutory duties is furnished by Order XXVII-A of the Code of Civil Procedure. By the provisions of s. 91 of the CoQe of Civil Procedure no suit for a declaration and instituted injunctiol) in tht: case of a public nuisance can be except by him or with his consent. Similar powers are given and duties cast on him by s. 92 C.P.C. in the case of trusts created for public purposes. Section 526-A of the Code of Criminal Proce dure gives an Advocate-General power to apply to the court for the committal or transfer of a case to the High Court where any person subject to the Naval Discipline Act or to the Army Act or to the Air Force Act is accused of any of the offences specified It is not open to the Advocate-General to intervene in therein. any suit or legal proceeding apart from the provisions of the Code of Civil Procedure because he thinks pubiic interest is involved in the matter.

Treating the matter historically, it may be said that in many respects t3e position of an Advocate-General before 1950 was very similar to that of the Attorney-General in England. Sec tions 100 and 111 of a statute of 1813, 53 George III, C. 155, L169Sup.CI(P)/71-13

898

SUPREME COURT REPORTS

[1971] 1 S.C.R.

A

enabled the Advocates-General to exhibit to the respective Supreme Courts of Judicature at any of the Presidencies or to the Recorder's Court at Bombay any information or informations for breaches of Revenue laws etc. as might be taken by the Attorney-General in the court of Exchequer in England or in the nature of action or actions at law or of a bill or biBs in equity as occasion might require against any person or persons residing within such juris diction as His Majesty's Attorney-General for the time being was by law authorised to exhibit. The wording of s. 111 shows that itf object was to dispel doubts which had arisen about the compe tency of the Advocate-General or Principal Law Officer of the E2-,t India Company to take such action. S. 114 of the Govern meat of India Act, 1915 empowered the Advocate-General for any. Presider~cy to take on behalf of His Majesty such proceedings as C might be taken by His Majesty's Attorney-General in England. S. 65(2) of the Government of India Act, 1935 laid down that it was the duty of the Advocate-General to give advice to the Provin- cial Government upon such legal matters and to perform such other dutie" of a leg~l character as may from time to time be referred or assigned to him by the Governor.

B

D

The position of the Attorney-General in England is stated by Hood Phillips on Constitutional and Administrative Law (Fourth . Edition) at p. 316 to be as follows :

"The Law Officers consist of the Attorney-General and Solicitor-General for England, and the Lord Advo cate and Solicitor-General for Scotland. They are re garded as the heads of the Bar in their respective coun tries, and as such are referees on points of professional etiquette."

The learned author goes on to note at p. 317 :

"The Attorney-General represents the Crown in civil proceedings in which it is specially concerned. His consent is necessary for the prosecution of certain offen ces, e.g. under the Official Secrets Acts. In criminal proceedings he. or. the Solicitor-General. or their depu ties, prosecute m Important cases. the practice for the At_tor~ey-General to lead in treason and impor tant ~onstitutional cases. He may also file ex officio criminal is now rarel¥ used. He may stop the trial of an indictment by entenng a nolle prosequi. He may also take over certain proceedings on the relation of private individuals (relator actions) e.g. public nuisance etc ....... The At10rney- General's procedural privileges include the right to demand a trial at Bar (i.e. now, before a Divisio,nlal

informations, though

this procedure

It is

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A. P. GANDHI v. H. M. SEERVAI (Milter, J.)

899

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Court), and the right to choose the venue for any civil or criminal proceedings in which the Crow!l is concerned.'

the Constitution Anson in his treatise on Law and Custom of Volume II, Part I (4th Edition, 1935) describes the Attorney the General, the Solicitor-General and the Lord Advocate and Solicitor-General for Scotland as the chiefs of the legal profession in their respective countries and states that in England and Nor thern Ireland they represent the Bar when the Bar takes collective action. So far as England is concerned neither the Attorney General nor the Solicitor-General appears to have had for a very long time any function to discharge or any duty to perform when the conduct of a barrister or a solicitor was called in question. The power of inquiry was delegated by the Judges to the Inns of Court so far as barristers were concerned and as regards solicitors the matter has for some time been delegated to the Law Society.

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for

It may not alsb be out of place to note the history of the legislation in India with regard to enquiries against members of the legal profession prior to the Act of 1961. Under clause 10 of the Letters Patent Qf the High Court of Calcutta of the year· 1865 the High Court was to have power to make rules the qualification and admissipn of proper persons to be advocates, vakils and attorneys at law and was to be empowered to remove or suspend them from practice on reasonable cause. The Letters Patents of other High Court contained provisions. The Legal Practitioners Act 1879 appears to have been the earliest Indian statute on the subject. Under s. 13 of this Act the High Court was empowered after su~h enquiry as it though fit, to suspend or dismiss any pleader or muktyar who was guilty of fraudulent or grossly improper conduct in the discharge of his professional duty. The Bar Councils came into existence for the first time under the Bar Councils Act, 1926. But even under this Act the power to reprimand, suspend or remove from pra&tice any advocate of the High Court charged with professional or other misconduct was left with the High Court under s. I 0(1 ). S. 1 0(2) laid down the procedure to be adopted by the High Court when a complaint was made to it by any Court or by the Bar Council or by any other person that an advocate had been guilty of misconduct. The· High Court could summarily reject the complaint or refer the· case for enquiry to the Bar Council or after consultation with the Bar Co~ncil refer it _to the Court of a District !udge and it also might of 1ts own motiOn refer any case where 1t had reason to believe that any advocate had been sv g~i l ty. Under s. 11 it was the ~ duty of a committee of the Bar Council to inquire into a complaint H· made under s. 10. Under s. 12(2) of the Ar.t the finding of a Tribunal on an inquiry referred to the Bar Council was to be forwarded to the High Court through the Bar Council and the finding of a District Court on such inquiry was to be forwarded

G

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900

SUPREME COURT REPORTS

( 1971] I S.C.R.

to the Hioh Court direct with a copy to the Bar Council. S. 12(3) of the A~t contained a provision somewhat similar to s. 35(3 ). of the Act of 1961. The hearing was however to take place before the High Court, which had to give notice of the date ~xed for the purpose to the advocate concerned, to the Bar Council and to the Advocate-General and to afford them an opportunity of being heard before orders were passed in the case. Under the Act of 1926 the Advocate-General appeared on the scene only after the Bar Council had recorded its finding. The significant departure in the Act of 1961 from the analogous provision of the Act of 1926 is that the Advocate-General is given notice of hearing of the cas~. By itself this cannot affect any ch.:nge in his position as regards an inq: .. tiry into the conduct of an advocate. It would be reasonable to hold that while passing the statutes of 1926 and 1961 the Legislature thought that the Advocate-General should be heard inasmuch as he occupied the position of a general referee on points of professional etiquette very much like the Attorney General in England.

However that may be, once he does the duty enjoined upon ·him by the statute of making such submissions as he thinks proper at the hearing his functions qua the inquiry come to an end. As If the discipii a referee he has no further interest in the matter. nary committee of the Bar Council makes an order against the advocate which the Advocate-General considers harsh and un~ reasonable in the circumstances of the case, he is not called upon to file an appeal to protect the interests 0f the advocate. Neither js he interested in prosecuting the matter further if he takes the view that the pu11ishment meted is not commensurate with the misconduct of the advocate.

).

Elaborate reference was made at the Bar to the decision· of the Privy Council in Attorney-General of the Gambia v. Pierre Sarr N'Jie ( 1 In that case the conduct of the respondent, a mem ber of the English Bar admitted to practice as a barrister and solicitor of the Supreme Court of the Gambia was found to be dishonourable and as such an order striking his name off the roll of the court was made by the deputy Judge with a direction that it should be reported to the Masters of the Bench of the Inn to which he belonged. The Chie.f Justice of the Supreme Court of the Gambia had criticised the conduct of the barrister severely in the course of a trial held before him and had sent a copy of his judgment to the Attorney-General of the Gambia. The Attorney~ General served a notice of motion on the barrister for an enquiry to be made by the Chief Justice but as the Chief Justice was the only Judge of that Court he recommended that some one other than himse1f should be appointed as a deputy Judge to hold the

{I) [1961] A. C. 617, 630.

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A, P. GANDHI v. H. M. SEERVAI (Mitfer, ].)

901

inquiry. The Deputy Judge ordered his name to be struck off the roll. His order was however set aside by the West African Court of Appeal not on merits but on the ground that a Deputy Judge had only jurisdiction to represent the Chief Justice in the exercise of his judicial pQ\".'ers and according to the Court of Appeal the power to strike the name of a legal practitioner off the roll was not a j1.1dicial power. The Attorney-General of the Gambia appealed to Her MajesLy in Council. The question of the the maint: · ; bility of the appeal was also canvassed before Board. \-, ,u, regard to inquiries into the conduct of barristers and solicitors in the Crown colonies Lord Denning, who delivered the judgment of the Privy Council, said-

"hv the common law of England the Judges have the right to determine who shall be admitted to practice as barristers and solicitors, and as incidental thereto the judges have the right to suspend or prohibit from prac time In England this power has for a very long tice. been delegated, so far as barristers are concerned, t6 the Inns of Court; and, for a much shorter time, so far as solicitors are concerned, to the Law Society. In the colonies the Judges have retained the power in their own hands, .. .''

His Lordship went on to remark at p. 631 :

"When the judges exercise this power to suspend or expel, they do not decide a suit between the parties. There is no prosecutor as in a criminal case, nor any plaintiff as in a civil suit. The judges usually act on their own initiative, ex mero motu, on i,nformation which has come to their notice, or to the notice of one or other of them in the course of their duties."

Further,

"When a legal practitioner is suspended or struck off by the judges of a colony, he has always been at liberty to petition Her Ma~~sty in Council restore him."

to

Rejecting the argument that the Attorney-General had no locus standi to petition for special leave to appeal as· he was not a person aggrieved, the Board n:krred to s. 31 of the Order in Council. 1949 which gave very wide powers to His Majesty in Council to entertain the petition of any person aggrieved by any judgment of the court and to, admit his appeal upon such condi tions as His Majesty in Council would think fit to impose. On the facts of the case the Board held that the Attorney-General had a sufficient interest in the matter because the order made by the

902

SUPREME COURT REPORTS

[1971J 1 S.C.R.

.West African Court of Appeal prejudicially affected his interests. The reasoning of the Board was a~ follows : -

"The Attorney-General in a c?lo_ny represent~ t~e It IS hts Crown as the guardian o( the pubhc mterest. duty to bring before the Judge any misconduct . of a barrister or solicitor which is of sufficient grav1ty to warrant disciplinary action. True it is that if the judge acquits the petitioner of misconduct, no appeal is open to the Attorney-General. He has done his duty and is not aggrieved. But if the Judge finds the pra~titioner guilty of professional misconduct and a Court of App~al reverses the d_ccision on a ground which goes to the JUriS diction of the judg~, or 1s otherw1se a point in which the public interest is (;Oncerm:d, the Attorney-General is a 'person aggrieved' by the decisio,n and can properly petition Her Majesty for special leave to appeal."

lt is clear that Lord Denning consider~d the denial of jurisdiction of the deputy Judge to be a matter of.public interest and therefore held the Attorney-General, as the Crown's representative, to be a person sufficiently inte1e5ted as to be a person aggrieved. That surely is not the positoin here, nor is an Advocate-General the representative of the Government. Neither the Constitution nor the Advocates Act 1961 holds him as the repr~5entative of the Government or as a person representing the public interest. Whate,:er may be the position of the Attorney-General in a colony as a representative of the Crown, he is not the guardian of the public interest in India in any matter except as provided for in the statutes. He like any other person may draw the attention of the Bar Council to any mis-conduct of an advocate which accord ing to him merits disciplinary action. The Act of 1961 provides for notice to be given to him of all such proceedings and gives him a right to appear at the hearing but once the hearing is over and a finding recorded he has done his duty and cannot be said to be aggrieved within the meaning of the expression used in s. 37. It is only because the Attorney-General for the Gambia had an interest in seeing that the Court of Appeal did not reverse the deci sion of the Deputy Judge on a ground which went to the jurisdic tion of the Judge or was otherwise a point in which the public interest was concerned that the Board held that he was a person aggrieved.

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Our attention was drawn to a decision of the Judicial Com mittee in Advocate-General Bombay v. Phiroz Barucha(l) where the Privy Council entertained an appeal by the Advocate-General

H

(l) 37 B.L.R. 722.

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A. P. GANDHI v. H. M. SEERVAI (Mitter, J.)

903

taken by

of Bombay against an advocate who h.~d been found by the High Court of Bombay to have been guilty of misconduct but against whom no disciplinary action had be.eo the Judges. Although there was a good deal of discussi.on at the Bar about the maintainability of the appeal which was sought for by special leave, the Board remarked that the circumstances were not such as to justify it in advising His Majesty to grant such special leave principally on the ground that the qu~stion was one of the exercise of statutory discretion by the Judges as to whether the circums tances of the case as established before the High Court called for. any disciplinary action and the Board felt that the action of the High Court in exercising their discretion in the way they had done was not such as His Majesty would be advised further to consider.

This decision does not help the Advocate-General of Maha rashtra because it did not decide the point as to the maintainability of the appeal. It is well known that the Judicial Conimittec was never chary in granting special leave to appeal when it felt that the justice of th€? case demanded a further hearing.

:Mr. Daphtary appearing for the appellant very fairly drew our attention to an observation of this Court in Bhataraju Nage slmra Rao v. The Hon'ble Judges of the Madras High Court(~) which was a case of an appeal by spccia~ leave from an order of the Hi!!h Court at Madras under s. 12 of the Indian Bar Councils Act debarring the advocate for a period of five years on charges In of misconduct which were held by the High Court as proved. the ultimate paragraph of the judgment this Court recorded its strong disapproval of the frame of the appeal in that the Judges of the High Court had been made respondents to it. They how ever went on to observe that :

"in an appeal arising out of a proceeding under the Bar Councils Act the appropriate parties should be the advocate concerned, the complainant, if any, the Bar Council or the secretary thereof and the Advocate-Ge;ne ral of the State concerned to whom notices have to be issued under section 12(3) of the Indian Bar Councils Acl."

With great respect, we find ourselves unable to concur in the above so far as the Advocate-General is concerned. It does not appear that any argument was advanced about the proper parties to the appeal before this Court and the point as to whether the Advocate General was a per:son aggrieved was neither raised nor argued. The only party to appear before this Court was "the Judges of the High Court." (1) {1955] J.S.C.R. 1055, 1064

904

SUPREME COURT REPORT::;

(1971] 1 S.C.R.

in

that

that

this case

It appears

the Advo.ca~e-9eneral of . Maharashtra felt the dJ~c1plmary committee of the Maharashtra Bar Council had gone wrong and that there ~·a~ a question of principle involved as regards the. effect of :1 con.vt~~IOn of an Indian advocate of an offence recogmsed by all ClVIlised countries as an offence involving moral turpitude and ~hat the question also related to the requirements of natural justice in a criminal court. Every day courts of law are called upon to decide questions of law inter-partes which may be of general importance to the public. The Advocate-General cannot prefer an appeal merely because the question is one of considerable importance to the public inasmuch as he is not a party to it and he has no locus standi to do so even in a case where the statute only gives him an or.portunity of appearing at a hearing ~md making his submissions.

A decision by the 9isciplinary committee cmmot necessarily be said to raise a point of public interest merely because the Advocate-General fe~ls that it is erroneous or that he himself would have arrived at a different concbsion. That at best is his personal opinion as regards the conduct of an advocate who has to deal with the public and the non-acceptance thereof does not make him a person aggrieved. An Advocate-General in India is not the guardian angel f the Bar, nor is he the champion of public interest in any matter save as specified in a statute.

In conclusion we hold that the appeal by the Advocate-General of Maharashtra to the Bar Council of India was incompetent and this appeal should be allQwed and the finding of the Bar Council of India set aside.

Vaidi~lingam, J. With

to a()'ree . with the views expressed by My Lord, and Mr. Justice Mitter that the appeal filed by the Advocate-General of Maharashtra before the Bar Council of India was incompetent.

I am not able

respect,

The preliminary point that has been argued before us in this appeal relates to the maintainability of the appeal by the -Advocate General of Maharashtra before the Bar Council of India under s. 37 (1) of the Advocates Act 1961-Act 25 of 1961 (hereinafter referred to as the Act) against the order of the Disciplinary Com mittee of the Bar Council of Maharashtra (hereinafter referred as the Committee) dated October 19, 1968 holding the appellant not It is not necessary to refer guilty of any professional misconduct. the to the allegations of professional misconduct made against appellant as this appeal has yet to be heard on merits.

Against the order of the Committee, acquitting the appellant, filed

the Advocate-General of Maharashtra Sri H. N. Seervai,

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A. P. GANDHI v. H. M. SEER VAl (Vaidialingam, ], )

905·

under s. 37 ( 1) D.C. Appeal No. 18 of 1968 before the Bar Coun cil of India. The said appeal was heard by the Disciplinary Com mittee of the Bar Council of India (hereinafter referred to as the Appellate Committee) as required by s. 3 7 ( 2) of the Act. A preliminary objection was raised on behal.f of the appellant that the Advocate-General was not competent to prefer the appeal as he was not the complainant nor were the proceedings for taking disciplinary action initiated at his instance and he is not "any per son aggrieved'' ·under s. 3 7 ( 1 ) . The State Bar Council, which iuitiated the proceedings was apparently satisfied with the decision of its Committee and did not take any further action. In short, according to the appellant, the Advocate-General was not '·any person aggrieved", under s. 3 7 (1) of the Act. The appeal was also contested by the appellant on merits. The Appellate Com mittee bv its order dated October 26, J 969 overruled the preli minary objection and held that the Advocate-General was compe tent to maintain the appeal under s. 37 ( l). By the same order the Appellate Committee disagreed with the findings of the Com mittee and found tho,;: appellant guilty of professional misconduct and ordered his suspension from practice for a period of one year. The appellant was also directed to pay the costs of the proceed ings. It is this order of the Appellate Committee that is the sub- ject of the appeal before us.

•

As stated earlier, we have heard arguments only on the ques- · tion of the maintainability of the appeal at the instance of the Advocate-General of Maharashtra before the Bar Council of India. As the question raised was a fairty important one. notice had been issued to the Attorney-General of. India, the Bar Council of India, the Advocates-General and the Bar-Councils of the States. Advo~ cates-General of most of the States were represented by counsel. The Attorney-General of India, the Bar Council of India as well as :he Bar Council of Maharashtra were also represented by counsel before us.

The question posed for our consideration

the Advocate-General of a State comes within the expression "any person aggrieved" in s. 37 ( 1) of the Act.

is whether

Mr. Daphtary. learned counsel for the appellant. drew our attention to the various provisions of the Act and pointed out that matters concerning the legal profession have now been entrusted to the State Bar Councils and the Bar Council of India and the powers to take disciplinary action have also been vested in them. the W~atever may have been the position once occupied by Aavocate-General vis-a-vis the legal profession, that has now been is changed by the Act. His appearance in disciplinary matters in interest only to assist the Committee and he has no

further

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those proceedings. Whether an Advocate is acquitted or convict- A ·ed is no concern of the Advocate-Ge,neral, because he is not interested in the actual decision of the Committee. Hence the Advocate-General cannot be considered to be "any person aggriev- ed by any order of the Committee so as to be eligible to file an In this connection Mr. Daphtary appeal under s. 37 of the Act. .referred us to several English decisions where the expression 'per- son aggrieved' has been considered and interpreted with references to the statutes in which those expressions occur. Relying on the principles laid down in those decisions, to which reference will be made later, Mr. Daphtary pointed out that the expression 'person aggrieved' should not be interpreted as covering every person who is disappointed or dissatisfied with a uecision rendered by a Com- . mittee. On the other hand, the counsel urged, that in order to be C considered as a 'person aggrieved' that person must be one who has suffered a legal grievance, a man against whom a decision has been pronounced and which has wrongfully deprived him of some- . thing or wrongfully refused him something, or wrongfully affected his title to something. An appeal must be by the party who has endeavoured to maintain the contrary of that which has place. The counsel further pointed out that the Advocate-General is a public officer and ca~not be considered to be a party to the proceedings before the Committee. The Advocate-General may be even annoyed \vith the decision of the Committee acquitting an Advocate, but that will not make him a 'person aggrieved'.

taken D

the Considerable reliance was placed by Mr. Daphtary on observations of Lord Denning in Attorney-General of the Gambia v. Pierre Sarr N'lie( 1 ) to the effect that the Attorney-General in a colony represents the Crown as the guardian of the public interest and that it is his duty to bring before the Judge any misconduct of a barrister or solicitor which is · of sufficient gravity to warrant disciplinary action and that if the Judge acquits the practitioner of misconduct, no appeal is open to the Attorney-General, who has done his duty and is not aggrieved. But if, on the other hand, a · Court of Appeal reverses the decision holding a practitioner guilty of professional misconduct, o.n a ground which goes to the juris diction of the Judge or is otherwise a point in which the public interest is concerned , the Attorney-General is a 'person aggrieved' by the decision and can properly petition Her Majesty for special leave to appeaL Drawing support from these observations Mr. Daphtary urged that in this case, the Committee had acquitted the appellant and the Advocate-General having appeared through counsel before the Committee has done his duty, and as such he jurisdic cannot be considered to be aggrieved. No question of lion of the Committee or any point in which the public interest is

(]) 11961} Appeal Cases 617

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A. P. GANDHI V. H. M. SEERVAI (Vaidialingam, J.)

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concerned arose for decision in the appeal filed by the Advocate General, so as to make the appeal competent even within the limited rule laid down by Lord Denning.

Mr. V. S. Desai, learned counsel appearing for the Advocate General of Maharashtra and Mr. M. C. Setalvad, learned counsel appearing for the Bar Council of India have supported the decision of the Appellate Committee holding in favour of the competency of the appeal filed by the Advocate-General as "any person aggriev ed" under s. 37 of the Act. The counsel appearing the Attorney-Gentral, the Bar Council of Maharashtra and the Advo cates-General represented before us have supported this view.

for

Mr. V. S. Desai pointed out that the Act is a self-contained Code, and that the various decisions where the expression 'person aggrieved' has been interpreted must be appreciated in the parti cular context in which those expressions occur the statutes which were before the Courts. The reasoning in those decisions may furnish a guide but cannot be applied ipso facto when inter preting s. 37 of the Act. The expression "any person aggrieved" in s. 37 of the Act will have to be understood and interpreted in the context in which it appears, having due regard to the scheme of the Act. The counsel also referred us to certain decisions bear ing on this matter, to which we shall refer in due course.

in

Mr. M. C. S~tal~'ad, learned counsel, appearing for the Bar Council of India urged in particular that the Advocate-General is a responsible person and is the highest Law Officer of the State. The legal profession is very closely associated with the administra tion of justice by the Courts. The Bar, in that context has to come into contact with the public to assist them in legal matters. This responsible position occupied by the legal profession has to be properly safeguarded and that could be done only by insisting that its members are persons of high character and integrity and who observe rules of professional etiquette. The Act has made it obligatory to give notice in the disciplinary proceedings· to the Advocate-General and give him an opportunity of being heard. The purpose for which the highest Law Officer of the State, the Advocate-General, is brought in not only in the Act, but also in the Indian Bar Councils Act of 1926 (Act 38 of 1926) (herein after referred to as the Bar Councils Act) is to subserve the public interest, namely, of seeing that the integrity and honesty of the legal profession are maintained and that proper decisions are given in disciplinary proceedings. There may be cases of inadequate punishment or even harsh punishment being awarded by the Com mittee. The Advocate-General in proper cases can bring up such further matters before the Bar Council of India. Mr. Setalvad pointed out that there is no restriction placed in s. 37 denying the right of the Advocate-General to file an appeal against the orders of the Committee. Having due regard to the scheme of the Act

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[1971] 1 S.C.R.

and particularly of ss. 35 and 3 7, the Advocate-General comes within "any person aggrieved" and hence he was competent to file the appeal.

....

I have given careful consideration to the various aspects placed before us by all the learned counsel and I am of the view that the decision of the Appellate Committee holding that the appeal filed by the Advocate-General of Maharashtra was compete;nt is cor I am further of the view that the expression "any person rect. in. aggrieYed" in s. 3 7 will have to be interp;eted in Ute context which it appears, having due regard to the provisions of the Act and its scheme. Considered in this manner, it has to be held that the Advocate-General comP.S within "any person aggrieved'' in s. 37. The decisions relied on by Mr. Daphtary have, no doubt, interpreted the expression 'person aggrieved' occurring in the parti cular statute:i which came up for consideration in those decisions, . but in my opinion it \Viii not be safe to adopt in toto the interpre tation so placed. no doubt on the identical expression uccurring in different statutes when construing the said expression in the Act before us. As pointed out by Lord Parker C.J. in Eating Corpo ration \'. Jones( 1 ) cases which have interpreted similar expressions, can be looked into "to see if there are general principles which the can be extracted which will guide the court in approaching question as to \\·hat the words ·person aggrieved' mean in any par ticular statute." I will make a brief reference to the decisions cited for the appellant later. But before doing so, it is desirable the to refer to some of the provisions of the Act itself, so scheme of the Act will become evident, and that will throw con siderable light on the interpretation of s. 3'/.

that

Before I refer to the Act. I think it desirable 'to advert to some of the provisions of the Bar Councils Act. Even at the outset [ may point out that the scheme of the Bar Councils Act was diffe rent. In the Bar Councils Act. the disciplinary jurisdiction over Advocates was vested in the High Court [vide s. 10(1)]. Under is not summarily s. 10(2) the High Court, if the compbint rejected by it. had to refer the case for inquiry either to the Bar Council or after consultation with the Bar Council, to the Court of a District Judge. When a case is referred for inquiry to · the Bar Council under s. 1 I, the case was to be inquired into by the Committee of the Bar Council. referred to as the Tribunal. and th:lt Tribunal consisted of the particular number of person men tioned in s. 11 (2) appointed for the purpose. by the Chief Justice. The High Court had power to make rules under s. 1 2 ( 1 ) prescrib ing the procedure to be followed in the conduct of inquiries. The findin_!! of the inquiry by the Tribunal had to be forwarded to the High Court. On receipt of the finding. the High Court had to fix

(I) [1959) I Q.B.D. 384.

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A. P. GANDHI V. H, M. SEERVAI ( Vaidia/ingam, J.) 909

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a date for heariug of the case. under s. 12 ( 3) it was obligatory to give notice, amongst other persons, to the Advocate-General of the day fixed for hearing; and it was also further obligatory to give the Advocate-General an opportunity of being heard before orders were passed. Under s. 12( 4) the High Court could pass final orders or refer the case back for further inquiry. Under sub-s. ( 5) the High Court had also power, -when passing final orders to give directions regarding payment of costs. I am only referring to the materi<il provisions of the Bar Councils Act to show that the High Court was then the disciplinary authority and the function of the Committee of the Bar Council was only to submit a finding after conducting an inquiry as directed by the High Court. It is then was not however to be noted that the Advocate-General the associated in the inquiry proceedings before the Tribunal of Bar Council ; but he was entitled to be given notice of the date fixed for hearing and also to be heard in the proceedings before the High Co'urt after receipt of the finding submitted by the Com mittee of the Bar Council. Those provisions clearly establish the important position occupied by the Advocate-General and rocog nised by the Bar Councils Act.

The scheme is slightly different when we come to

the Act. The State Bar Councils and the Bar Council of India have been made autonomous units and various functions regarding the legal profession have been entrusted to them. Taking disciplinary action against the delinquent members of the Bar and conducting inquiries are all part of their functions. Barring a provision of a right to appeal to the Supreme Court under s. 38 of the Act, the Courts are completely out of picture so far as the legal profession is conceflled. The Act was one to amend and consolidate the law relating to legal practitioners and to provide for the constitution of the Bar Councils of the States and the Bar Council of India. Section 3 makes provisions for the State Bar Councils. Un.der sub-section ( 2) the Advocate-General of the State is an ex-officiO is member. Similarly the Additional Solicitor General of India an ex-officio member of the State Bar Council of Delhi. Section 6 ( I ) enumerates the functions of the State Bar Coun~ils. One of the functions under cl. (c) relates to entertaining and determining cases of misconduct against advocates on the roll of the State Bar Council. Section 7 similarly enumerates the functions of the Bar Council of India. Under cl. (c), the Bar Council of India has got the power to Jay down the procedure to be followed by its Disciplinary Comm;ttee and the Disciplinary Committees of each State Bar Councils. Section 9 deals with the Bar Council consti tuting one or more Disciplinary Committees in the manner indicat· ed therein. Section 23 gives a right of pre-audience to the Attor ney-Genera] of India, the Solicitor General of India, the Additional-

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[1971}1 S.C.R.

Solicitor General of India and the Advocate-Generals of the States, A as mentioned in sub-sections 1 to 4 respectively.

Chapter V deals with the "conduct of Advocates" and contains the group of sections 35 to 44. Section 35 deals with the punish ment of Advocates for misconduct and is as follows :

"Section 35 : Punishment c.f advocates for mis

conduct :

( 1 ) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advo- cate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its dis ciplinary committee.

( 2) The disciplinary committee of a State Bar Council, if it does not summarily reject the complaint, shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate-General of the State.

( 3) The disciplinary committee of a State Bar CoWl cil after giving the advocate concerned and the Advo cate-General an opportunity of being heard, may make any of the following orders, namely:-.

(a) dismiss the complaint or~ where the proceedings were initiated at the inrstance of the State Bar Council, direct that the proceedings be tiled;

(b) reprimand the advocate;

~c) suspend the advocate from practice

for such

period as it may deem fit;

(d) remove the name of the advocate

from

the

State roll of advocates.

( 4) Where an advocate is suspended from practice under clause (c) of sub-section ( 3 )~ he shall, during the period of suspension, be debarred from practising in any court or before any authority or person in India.

( 5) Where any notice is issued to the Advocate- General under sub-section (2), the Advocate-General ·may appear before the disciplinary committee of the State Bar Council either in person or through any advo- cate appearing on his behalf."

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Similarly s. 36(1) deals with the disciplinary pow,rs of Bar Council of India. Sub-section (2) confers powers on

the the

A. P. Gi\NDHI v. H, M. SEERVAI (Vaidialingam, /.)

911

A Appellate Committee of its own motion to withdraw for inquiry for itself any disciplinary action against an advocate pending before the Committee and dispose of the same. Sub~section (3) provides for the Appellate Committee when disposing of a ~ase under s. 36 observing, so far as may be, the procedure laid down in s. 35. the Advocate~

It further provides that references

to

B General in s. 35 are to be construed as references to the Attorney

General of India.

Sections 37 and 38 which provide for an appeal to the Bar run as.

Council of India and to the Supreme Court respectively follows:

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"Section 3 7 : Appeal to the Bar Council of India.

( 1 ) Any person aggrieved by an order of the dis ciplinary committee Qf a State Bar Council (under section 35) ill.ay, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India.

(2) Every such appeal shall be heard by

the dis-· ciplinary committee of the Bar Council of India which may pass such order thereon as it deems fit."

"Section 38. Appeal to the Supreme Court :

Any person aggrieved by an order made by the dis ciplinary committee of the Bar Council of India under section 36 or section 37 may, within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order thereon as it deems fit."

Section 42 ( 1 ) deals with powers of the disciplinary committee of a Bar Council with regard to the various matters provided for· in cis. (a) to (f). Section 43 provides for making of orders as to costs by the disciplinary committee of a Bar Council. Section 44 gives powers of review to the disciplinary committee of a Bar Council. Section 48A. in Chapter VI, deals with the revisional powers of the Bar Council of India.

It will be seen from ss. 3 (2 )(a), 23 ( 4) and 35 that the Advocate-General of the State is given by the Act a very impor tant and responsible position. Some discussion took place before us whether the Advocate·General can be considered to be the person who is charged with the duty of safeguarding the profes- sional integrity of the members of the Bar. when powers and duties in that regard have been conferred under the Act on the

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I do not think it necessary to go into that State Bar Councils. .aspect as I think a;n' inquiry in that regard is not relevant tor the present purpose of construing s. 37. Nor can the analogy of the Att~ney-General in a colony representing the Crown, being the guardian of public interest, as stated by Lord Denning in Attorney General of the Gambia v. Pierl'ee Sarr N'Jie(l) be brought in for interpreting ·s. 37 of the Act, as we are only concerned to find out the right given to the Advocate-General by t~e Act. So far as that is concerned, I am satisfied that the Act has given due recog nition to his status by virtue of1 his being the highest Law Officer in the State, as the Advocate-Ge;rf,;:ral and who may be trusted to place a disinterested and dispassionate view before the Committee to enable it to come to a proper decision having due regard to the Advocate concerned, as well as the entire legal profession to which he belongs. Apart from his being under s. 3 (2) (a) an ex-officio member of the State Bar Council, s. 23 ( 4) gives him a right of pre-audience over all other advocates.

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Coming to s. 35, read with s. 37, which has been extracted earlier, the main features that emerge therefrom are as follows :

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( 1) The State Bar Council can suo moto or on receipt of a complaint, when it has reason to believe that an advocate has been guilty of pro fessional or other misconduct refer the case to its committee.

( 2) If the Committee does n,ot summarily reject the complaint, it is bound to fix a date for hearing of the case, and it is also further bound to give notice of the date of hearing, apart the advocate concerned, to the Advocate-General of the State.

from

( 3) The Committee is bound in the inquiry to give an opportunity of being heard both to the advo cate ~oncerned and the Advocate-General. After such an inquiry the Committee can pass one or other of the order~ enumerated in clauses (a) to (d) of s. 35.

( 4) The Advocate-General may appear before the Committee in person or through an advncate appearing on his behalf.

( 5) The orders of the Committee have to be com- municated to the Advocate-General and the advocate concerned.

(I) [1961} 1 A. C. 617.

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A. P. GANDHI v. H. M. SEERVAI (Vaidialingam, l.)

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( 6) Against the orders passed under s. 35, any person aggrieved is entitled to file an appeal under s. 37, to the Bar Council of India.

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indicates

D because sub-section ( 3) clearly

While under the Bar Councils Act, the Advocate-General was associated with the disciplinary proceedings only when the matter 8 was being decided by the High Court, after receipt of tte findings submitted by the Tribunal of the Bar Council, it is significant to note that under the Act, the Advocate-General is associated with the disciplinary proceedings right from the stage of inquiry by the Committee. Under sub-section (2) of s. 35 the Committee is bound to give notice of the date of hearing not only to the Advo cate concerned but also to the Advocate-General of the State. C will be noted that disciplinary proceedings may have been· occa sioned because of a complaint made by a third party or may have been initiated suo mota by the State Bar Council. In whatever manner the proceedings may have been initiated, the Advocate.. It General is entitled to be given notice of the date of hearing. cannot be a formal and empty notice_ to the Advocate-General, the Advocate~ is General should be given an opportunity of being heard. significant to note that sub-section ( 3) of s. 35 which deals with the giving of a:n opportunity of being heard both to the advocate concerned and the Advocate-General does not make any distinc tion in the opportunity so afforded to both of them. The same opportunity that the Advocate concerned has under sub-s. (3) is It is not necessary to go also afforded to the Advocate-General. to the extent of holding that there is a "lis" before the Committee and that the Advocate-General is a "party" in the sense that expres~ sion is ordinarily understood in law. The advocate concerned will be interested in disputing the allegations made or charges levelled against him and he will be entitled to lead evidence in support of If' there is a complainant, he ·.viii of course lead evi~ dence to support his case. The Advocate~General, on the other hand, is also entitled to place before the Committee all arper.ts of the matter including facts that may be in favour of the advocate whose conduct is under inquiry. This is because of the impor· the Advocate- tant positivn occupied by him. G General may not be able to appear personally and participate in all the disciplinary proceedings and that is why provision has been made in s. 35(3) enabling the Advo~ate-General to appear either in person or through any advocate appearing on his behalf. Just as the Advocate concerned will have an opportunity of examining his witnesses and cross-examining the witnesses produced against nim, the Advocate-General or the counsel appearing on his behalf will also have a right of cross-examining the witnesses produced in the case so as to elicit information abcut the charge of profes '!'he sional misconduct 1.

' ~ .tgainst the advocate concerned.

It may be that

F his plea.

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1169 SupCI/71-14

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914

SUPREME COURT REPORTS

[1971] 1 S.C.R.

Advocate-General need not be vindictive and take sides as a party to a litigation and see .that the advocate is found guilty. On the other hand, by virtue of the special and dispassionate role occu pied by him, he will be able during the inquiry to place such mate rials or evid~nce which will enable the Commi~tee to come to a proper and correct finding, in the interest of both the legal prac titioner and legal profession to which he belongs.

to

It is in this context of the close association of the Advocate General with the disciplinary proceedings that the expression 'per son aggrieved' in s. 37 has to be interpreted. There can be no controversy that an appeal will lie against the various orders that the Committee may pass as enumerated in cls. (a) (d) of s. 35 ( 3). The question is at whose instance the appeal will lie. If the complaint is dismissed, the complainant will be a 'person aggrieved' who can file an appeal under s. 37. In fact it has been held by this Court ir. B. M. Madani v. Commissioner of Work men's Compensation, Bombay(!) that when proceedings are initiated on a complaint by a party and the Committee after find ing the advocate guilty of the charges, passed an order reprimand ing with a warning, an appeal filed by such a complainant before the Appellate Committee only on .the question of sentence impos ed, was competent as the complainant was a 'person aggrieved'. Similarly, an order adverse to the advocate, concerned, can be the ·subject of appeal a't his instance.

,.

.:

There is ·no controversy that t!!e order passe'd by

the Com mittee was communicated to the Advocate-General. As already pointed Qut a series of steps is contemplated und~r s. 35; reference to the. Committee, of a case of professional misconduct; notice of .the date of hearing to be given to the Advocate-General; Advocate General being given an opportunity of being heard at the hearing; the. Advocate-General being entitled to appear before the Com mittee either in person or through an Advocate; his being entitled to· be communicated with a copy of the order passed by the Com mittee. It is in that context and for these purposes that I have considered the meaning of the expression "any person aggrieved" in s. 37 ( 1). The fact that the Advocate-General does not allege an infringement of any legal rights of his own is of no conse the Advocate quence. The particular proceeding in which General is given a right to participate relates to an inquiry into ihe allegations of misconduct against an advocate. Upon a fair cons truction of s. 37 read with s. 35 of the Act, the Advocate-General. in my opinion is ''any person aggrieved'' and as such was entitled to file the appeal under s. 37 (1) against the order passed by the Committee. The same reasoning will apply to the Attorney Genetal of India under s. 38.

(I) (Civil Af!peal No. 877 of -1968 decided on 8-10-1968).

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It may be that in a particular case the Advocate-General may feel that the findings arrived at in favour of the advocate by the Committee is not justified by the evidence and that decision will have to be reconsidered by the Appellate Committee; or it may even be that in a particular case the sentence imposed by the Com mittee may not be commensurate with the guilt of the advocate; or it may also be that the sentence imposed on an advocate by the Committee is very harsh or the fi.'llding of guilt is not correct. Under such and similar circumstances in the Advocate and the legal profession, the Advocate-General will be competent to bring up the matter before the Appellate Committee so that justice may be done.

interests of

the

in In this context the observations of Lord Hew art C.J. Sevenoaks Urban District Council v. Twynam(l) are apposite. _The question before the Court in that decision was whether an objector to a proposal made by a local authority to acquire land in order to provide parking place for vehicles and whose objec tions were overruled was a 'person aggrieved' under s. 68 ( 3) of the Public Health Act 1925 and as $Uch entitled It was found that the objector alleged· no ground of objections per sonally to himself. Nevertheless it was held that such an objec tor was a 'person aggrieved' and entitled to appeal. Lord Hew.art ,C .J. at page 443 states :

to appeaJ.

"The question therefore is : Is it true to say that in these circumstances anawithin the ·meaning of tl;lis part of this statute this -respondent was a 'person . : . . aggrie\:.~ ed' ? Now undoubtedly those words, 'a person aggriev 4 ed', have very often been considered, and, if one looked at the mere terms apart from their context and apart from the particular circumstances, it would have been quite easy to marshal decisions of contrad-ictory import. But as has been said again and again ther~ is often little utility in seeking to interpret particular expres- sions in one statute by reference to decisions given upon similar expressions in different statutes which have been enacted alio intuitu. The problem with which we are concerned js not, what is. the meaning of the expression 'aggrieved' in any one of a dozen other statutes, but what is its~.meaning in this part of this statute ? It is a i'5 little important to see what this part of this statute dealing with.,

The above extract has been quoted with approval by Lord

Parker C.J. in Ealing Corporation v. Jones( 2

).

II

I have already indicated earlier that the problem before us whether the Advocate-General is a 'person aggrieved' under s. 37

(I) [19291-2 !~. B. 440. _.

(2) [1959] 1. Q: B. 384.

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[1971] 1 S.C.R.

of the Act will have to be tackled with reference to the scheme and provisions of the Act and that is exactly what I have done and arrived at the conclusion that he is a perso:1 aggrieved.

Mr. Daphtary argued that when the Committee consisting of members of the legal profession, has decided in favour of the Advocate, the Advocate-General can have no grievance. This, i!l my view, is really begging the question. Why did the Legisla it ture then bring in the Advocate-General at all and why has associated him in disciplinary proceedings from the very beginning of the inquiry. ? ~at and other circumstances, already pointed out oy me, bnng htm under s. 3 7 as "any person aggrieved."

Mr. Daphtary then urged that if the Advocate-General was expected to safeguard the interest of the Advocate and. the legal profession by seeing that proper deci~ons are given by the Com mittee, that purpose is not served when powers have been given to the Committee under s. 35(2) to summarily reject a complaint and the Advocate-General will have no remedy against such rejection. The short answer to this contention is that a right of appeal must be specifically conferred by statute. Section 37 ( 1) gives a right of appeal against an order passed under s. 35. The orders which could be passed after hearing the case are enumerat ed in clauses (a) to (d) of s. 3 5 ( 3). It is not pecessary for me to express any opinion whether an order summarily rejecting a complaint can also be the subject of an appeal under s. 3 7 ( 1) as In any event, Mr. Daphtary's that section is in very wide terms. contention will only amount to this viz., that the Advocate-Gene ral is not associated at the stage of summary rejection of a com the view plaint. That circumstance does not militate against already ewressed by me. Probably the Legislature may !].ave felt that if there is any wrongful summary rejection of a complaint it could be setright by the Bar Council of India under s. 48A. But once the Committee decides to hear the cases and passes an order under s. 35, the Advocate-General gets a right of appeal under s. 37(1).

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Mr. V. S. Desai referred us to the decision of

the Judicial Committee in Advocate General of Bombay and others v. Pitamberdas Gokuldas Mehta and others(!) wherein, according to him, an appeal by the Advocate-General of Bombay against the decision of the High Court of Bombay Pleaders Act was enter tained by the Judicial Committee. He has .also referr.ed us tC? ~he discussion between the Court and counsel Ill the satd decision reported in Advocate-General of Bombay v. Phiroz Rustomji Bharucha(2) which, according to him, will show that though an objection about the locus standi of the Advocate-General to file an

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(l) 62 Indian Appeals 235.

(2) 37 Bombay, Law Reporter 722.

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A. P. GANDHI v, H. M. SEERVAI (Vaidia/ingam, J.)

917

appeal under such circumstances was raised, but was not accepted I have gone through both the reports by the Judicial Committee. and there is no indication that the question of maintainability of an appeal by the Advocate-General was decided one way or the other by the Judicial Committee

Mr. Daphtary has referred us to the decisions in Re. Side- botham(l ), in re. Reed, Bowen & Co.,( 2 ), The Queen v. The Keepers of the Peace and Justices of the County of London( 8 ), Rex. v. London Quarter Sessions(•) ~ Ealing Corporation v. Jones ( ~), wherein the expression 'person aggrieved' occurring in interpretation. The principles different statutes came up for that emerge from those decisions appear to be that a 'person aggrieved' must be a person who has suffered a legal grievance 'or who has olaimed a title to something ~rld his claim has been negatived or who has maintained to the contrary in the proceedings or litigation. It has been further held in some of those decisions that the said expression does not take in any person who may be affected by the order or who may feel disappointed or even annoyed at the decision. In the view that I take that the expression 'person aggrieved' in s. 37 of the Act has to be inter preted in the light of the provisions of and scheme of the Act as I do not well as the context in which those expressions appear. think it necessary to consider in great detail those decisions \vhich have been rendered on different statutes.

The decision in The Municipal Corporation of the City of Ahmedabad v. Chandulal Shamaldas Patel and others( 6 ) referred · to by Mr. Daphtary, in my opinion, does not assist the appellant. In that decision it was held th~t when certain notifications issued under the Land Acquisition Act were set aside by the High Court, the Municipal Corporation, on whose behalf the· acquisition was being made by the Government, cannot be considerd to be a 'per son aggrieved' entitled to challenge the order of the High Court. An additional reason has also been given against the competency of the appeal that even an order for costs has not been passed against the Municipal Corporation. That decision was rendered on the scheme of the Land Acquisition Act, and so does not help the appellant.

It was urged on behalf of the appellant that if the AdYocate General was really intended to be given a right of appea1 under s. 3 7 ( 1), the Legislat~re should have used the expression 'any person including the Advocate-General aggrieved by an order .... •

(I) 14 Chancery Divison 458. (3) 25 Q. B. D. 357. (5) [1959] I Q. D. 384. (6) (Civil Appeal No. l'il6 of 1967 decided on 1-8·1970)

(2) 19 Q. B. 174. (4) [1951] 2 K. B. D. 508.

918

SUPREME COURT REPORTS

[1971] 1 S.C.R.

I am of the view that it was unnecessary to make any such provi sion because the expression as it stands clearly takes . within its fold the Advocate-General also.

the This leaves me with the decision in Attorney-General of Gambia v. Pierre Sarr N.'Jie(:) which has been very strongly relied on by Mr. Daphtary. One Mr. X a member of the English Bar was admitted to practice as a barrister and solicitor of the Supreme Court of Gambia. The Deputy Judge made an order striking his name off the roll of that Court. This decision was reversed by the West African Court of Appeal on the ground that the Deputy Judge had no jurisdiction in the matter. The Attor ney-General of Gambia sought leave to appeal to Her Majesty in Council; but the West African Court of Appeal declined to grant him leave on the _ground that notice had not been given in due time tO Mr. X. The Attorney-General then made a petition to Her Majesty fu~ special leave to appeal from: the judgment of the West African Court of Appeal, setting aside the order of the Deputy Judge-as· well as refusing to grant leave to appeal. The Attorney-General's petition was granted; but liberty was reserved to Mr. X to raise the preliminary point that no appeal lay at the instance of the ~ttomey-General. During the course of argu ments the Judicial Committee rejected the preltminary objection.

It is to be noticed that against the decision of

the Deputy Judge striking his name off the roll, Mr. X filed an appeal to the West African Court of Appeal under s. 14 which was as follows ;

"An appeal shall lie to the Court of Appeal from any order of the Judge suspending a barrister or soli citQr of the Supreme Court from practice or striking his name off the Roll and for the purposes of any such appeal any such order shall be deemed to be an order of the Supreme Court.,,

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I am particularly referring to this decision because certa~n observations of Lord Denning on which reliance has been placed by Mr. Daphtary .will have, to be understood with reference to this provision. of law. Exercising juris~ic.tion under this section, the West Afncan Court of Appeal s~t as1de the order of the Deputy Judge. In the first instance the Attorney-General sought leave to appeal to Her Majesty in Council from the West African Court of Appeal under s. 5 of the West African (Appeal to the Privy Coun cil) Order in Council, 1949, which is as follows:

"Applications to the court for leave to appeal shan· be made,.by motion or petition within 21 days from the date of the judgment to be appealed the

from, and

(1) [1961] A. C. 617.

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A. P. GANDHI v. H. M. SEERVAI (Vaidiafingam, J.)

919

applicant shall give the opposite party notice of his in tended application."

The West African Court of Appeal declined to grant leave to appeal to the Attorney-General on the ground that notice had not given within the time mentioned in the above order to Mr. X. The Attorney-General made an application to the Judicial ~om­ mittee for special leave to appeal from the two orders mentioned above of the West African Court of Appeal. That petition was filed under s. 31 of the West African (Appeal to Privy Councll) Order in Council, 1949, which runs as follows:

"Nothing in this order contained shall be deemed to interfere with the right of His Majesty upon the humble petition of any pen;on aggrieved by any judgment of the Court to admit his appeal therefrom upon such condi tions as His Majest~· in Council shall think fit to impose."

The question that arose before their Lordships was whether the Attorney-General W< s a 'person aggrieved' under the above order.

In discussing this question Lord Denning at page 634

observes :

·• ...... The words 'person aggrieved' are of wide .

import and should not be subjected to a restrictive inter pretation. They do not include, of course, a mere busy body who is interfering in things which do not concern him : but they do include a person who has a genuine grievance because an o.rder has been made which prejudicially affects his interests. Has · the Attorney-General a sufficient interest for this purpose'! Their Lordships think that he has. The Attorney General in a colony represents the Crown as the guar It is his duty to bring before dian of the public interest. the judge ahy misconduct of a barrister or solicitor which is of sufficient gravity to warrant discriplinary action. True it is that if the judge acquits the practi tioner of miscon-duct. no appeal is open to the Attorney GeneraL He has done his duty and is not aggrieved. · But if the judge finds the practitioner guilty of profes sional misconduct, and a Court of Appeal reverses the decision on a ground which goes to the jurisdiction of !he judg~, or is otherwise a point in which the public. mterest IS concerned, the Attorney-General is a 'person aggrieved' by the decision and can properly petition Her Majesty for special leave to appeal. It was for these rejected the preliminary objection and held that the Attorney-General was a

· reasons that their Lordships

920

SUPREME COURT REPORTS

[1971] 1 S.C.R.

'person agg!ieved' by the decision of the West African Court of Appeal."

The observations made in the above extract, in my opinion, have to be related to the particular provision of the order in Coun· In the ca.;;e cil which the Judicial Committee was considering. before the Judicial Committee, the Attorney-General had imtiated the disciplinary proceedings against the Barrister. _Under s. 14, there was only a very limited right of appeal and that too in favour the orders mentioned of the barrister or solicitor in respect of therein. The Attorney-General, though he may have been the complainant under s. 14 had no right of appeal if the barrister was acquitted. That is why Lord Denning states that it is true that if the Judge acquits the practitioner of misconduct no appeal is open to the Attorney·General. This view, with respect, is cor rect because s. 14 does not give a right of appeal to the Attorney· Gen~ral. Lord Denning, no doubt, has further stated that the Judicial Committe~ has rejected the preliminary objection in view of the fact that it was of the opinion that in the case before it a question of jurisdiction. or a point of public interest is involved and therefore, the Attorney·General is a 'person aggrieved'.

I have already indicated that there are no restrictions or limit~­ tions imposed in s. 37 of the Act giving a right of appeal only to the advocate who may have been found guilty. On the other hand, the words "any person aggrieved'' in s. 37 are vr:ry ·wide, and the above as ohserved by Lord Denning in the opening part 0f extract these words should not be subjected to a restrictive inter pretation. In the view that I take that the Advocate-General has· an unqualified right of appeal under s. 37 ( 1) I do not think "it necessary either to refer to Art. 165 of the Constitution nor do I think it necessary to consider the further question whether the appeal tiled by the Advocate-General before the Bar Council of India relates to any question of jurisdiction or zt point of public interest.

To conclude, the appeal filed by

the Advocate-General of Maharashtra before the Appellate Committee was competent and this point has to be held against the appellant. The result will be that the app~al before us will have to be heard on merits.

RAY, J.

I agree with Vaidialingam, J.

my separate opinion in view of the importance of raised in this appeal.

I desire to express the question

This is an appeal from the order dated 26 October, 1969 of the Disciplinary Committee oi the Bar Council of India suspend· ing the appellant from practice for a period of one year.

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A. P. GANDHI V. H. M . SEERVAI (Ray, J.)

921

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An appeal to the Disciplinary Committee of the Bar Council of India was preferred by Shri H. M. Seervai, Advocate General of Maharashtra against the order dated 17 October, 1968 of the Bar Council of Maharashtra holding that the appellant was not guilty of professional misconduct or otherwise.

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Before the Disciplinary Committee ot the Bar Council of India a preliminary objection was taken by Adi Pheroz Shah Gandhi as to the maintainability of the appeal preferred by the Advocate Gent:ral of Maharashtra.

The appellant pressed the same preliminary objection in this Court, namely, that the Advocate General of the State of Maha rashtra could not prefer an appeal against an order of the Disci plinary Committee of the State Bar Council.

The relevant provision for appeal to the Bar Council of India is to be found in section 3 7 of the Advocates Act, 1961 (herein after referred to as the Act). There are two sub-sections of section 3 7. The first sub-section enacts that any person aggrieved by an order of the Disciplinary Committee of the State Bar Coun cil made under section 35 may, within sixty days of the date of the communication of the order to him, prefer an appeal the Bar Council of India. Sub-section (2) of section 37 states that every such appeal shall be heard by the Disciplinary Committee of the Bar Council of India.

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The pres~nt appeal is under section 3 8 of the Act which con fers right of appeal to the Supreme Court by any person aggrieved by an order made by the Disciplinary Committee of the Bar Coun cil of India.

The entire controversy in this appeal centres on the meaning of the words 'any person aggrieved by an order of the Disciplinary Committee of the State Bar Council' occurring in sub-section ( i l of section 3 7 of the Act. The same words also occur in section 38 of the Act.

Mr. Daphtary on behalf of the appellant contended first

that the Advocate General did not represent public interest and could not therefore be said to be a person aggrieved by an order of the Disciplinary Committee. Secondly, that the provisions in section 35 of the Act that the Advocate General was entitled to a notice from. !he Disciplinary Committee of the date of hearing and the prov1s~o~ t~at the Adv~cate General was entitled to be heard by the Dtsciphn:uy Committee could not have the effect of making the Advocate General a party, and, thirdly, the Advocate General w~s an impartial person and his duty would end by making sub missions, if any, before the Disciplinary Committee and he would

~22

SUPREME COURT REPORTS

(1971] 1 S.C.R.

not be a person aggrieved either by an order of dismissal of a com the plaint against the Advocate or by any order passed against Advocate.

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Notices were given to the Attorney General and the Advocates General of different States in view of the importance of the ques- tion involved in this appeal. Mr. V. S. Desai on behalf of Advocate Gener.al of Maharashtra, Mr. Setalvad on behalf of the Bar Council of India, Dr. Seyied Muhammad on behalf of the AttorneY General, Mr. Datar counsel for the Maharashtra State Bar Cotmcil of India, Dr. Seyied Muhammad on behalf of the of other States all contended that the Advocate General would have the right under the Act to prefer an appeal . as a person aggrieved by an order of the Disciplinary Committee of a State Bar Council.

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the . s.

Various decisions were cited at the Bar to illustrate the mean- is

ing of the words 'person aggrieved'. Qne group of decisions based on the locus classicus in Re. E.~-parte Sidebotham (lt). The · other line of decisions is to be found in Ex-parte Official Receiver, · J) Tn Re. Reed. Bowen & Co. (2) . and Sevenoaks Urban District Council v. Twynam( 3 ). James, J. in the case of Ex-parte Side botham said that "a 'person aggrived' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of some thing. or \HOngfully refused him something, or wrongfully affected his title to something." Lord Esh~r. M. R. on the other hand in Ex-parte Official Receiver In Re. Reed, Bowen & Co.(2) said that the meaning given by James, L.J. to the words 'person aggrieved' would not be an exhaustive definition and the words would include a person \\·ho has asked for a decision for which he had a right to ask, and has been wrongfully refused. In the Sevenoaks( 3 ) . case Lord Hewart, C.J. said "that when a person might make an.obje·c tion and was entitled to a decision upon it he would, if the·deci sion was adverse to him be able to appeal".

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· These decisions indicate that the words 'person aggrieved' would have different shades of meaning in accordance with the tenor of the relevant statute. The observations of James, L.J. in the case of Ex-par_te Sidebotham turn on the meaning of the words 'person aggrieved' occurring in the English Bankruptcy Act, 1914 which. inter alia, provided that the orders of the Court in bank ruptcy matters exc.ept in cases specially excluded were subject to appeal at the instance of any person aggrieved even if he had not appeared in the court below. It is in the context of the English Bankruptcy Act that creditors, trustees, administrators of a debtor

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(I) 14 Ch. D. 458

(2) 19 Q.B.D. 174.

0) [1929] 2 K..B. 404.

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A. P. GANDHI V. H. M, SEERVAI (Ray, /.)

923

or bankrupt would have a legal grievance against whom a deci sion has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.

Lord Hewart, C.J., in Seven.oaks cas~(!) said "the problem is not what is the meaning of the expression person aggrieved' in one or dozen statutes but what is its meanh!llg in this part of the Sta tute". In that case the relevant provision of the Public Health Act conferred a power on a local authority to provide with~ that dis trict suitable parking place for vehicles. The statute further in that case contemplated a notice of the proposal to acquire for using it as a parking place and objections, if any, to such proposal. When objections were made, the local authority would have to In the Sevenoaks case the Urban Council consi· consider them. dered the objection of a ratepayer and thereafter proceeded with in giving the scheme of the parking place. Lord Hewart, C.J. · meaning to the words 'person aggrieved' in that case said that first a person was an author of art objection, and, secondly, he was It was held that a spe· aggrieved by the refusal of his· objection. cial individual right was infringed. case there was neither a pecuniary nor a proprietary grievance. The action of the local authority in providing a parking place invited It is the refusal of that objection which constituted a objections. grievance and it was a grievance sustainable in law.

In the Sevenoaks(l)

land

~lr. Daphtary relied on the observations of James, L.J. in Re. Sidebothame) that 'a disappointed person would not be a person aggrieved' and also on the observations of Lord Coleridge in the County of Queen v. Keepers of the Peace and ]J-tstices of . London e) that one would not be an aggrieved person because it someone was held not to have done wrong. W<l5 said that the Advocate General would make submissions or adYance contentions and the non-acceptance by the Disciplinary Committee of such submissions would not constitute either a legal grievance or rejection of a remedy asked for.

In other words,

Mr. Daphtary also leaned heavily on the decision of the Judi· ck:!l Committee in Attorney General of Gambia v. Pierre Sarr N' .ffe( 4 ) in support of two propositions. First, that the Judicial Committee found in the Gambian case that in the colonies the Attorney General represented the Crown and was the therefore guardian of the public interest. Mr. Daphtary submitted that the Advocate General did nqt represent public interest in our country and therefore could not be said to be a guardian of public interest. Secondly. the Judicial Committee in the Gambian case said that in 0) [1929] 2 K.B. 404. 0.) 25 Q.1J.D. 357.

(2) 14 Ch. D. 458. (4) [1961] A. C. 617.

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SUPREME COURT REPORTS

[1971] 1 S.C.R.

.relation to disciplinary proceedings if a legal practitioner was acquitted of misconduct no appeal was open to the Attorney Gene ral because he had done his duty and was not aggrieved. Extract· ing that proposition from the Gambian case Mr. Daphtary sub· mitted that similarly the Advocate General could not have any grievance where an Advocate was acquitted.

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The purpose and the provisions of the Advocates Act, 1961 will determine whether the Advocate General is a person aggriev· ed within the meaning of the relevant sections in the Act. It may not be out of place to refer to the Bar Councils Act, 1926 which dealt with disciplinary c~nduct of practit;oners. Prior the Advocates Act the High Court under the Bar Councils Act, 1926 had power to suspend any advocate from practice whom it found guilty of professional or other misconduct. Under the said 1926 Act upon receipt of a complaint made tu it by any court Qr by Bar Council or by any other person that any Advocate had been guilty of misconduct, the High Court if ~t did not summarily reject the complaint referred the case for enquiry to the Bar Council or after consultation with the Bar Council to the Court of a District Judge and the High Court might of its own motion refer any case in which it had reason to believe that any such Advocate had been so guilty. If any case was referred under the Bar Councils Act, 1926 for enquiry, the case was to be enquired into by the Com mittee of the Bar Council which was called the TribunaL The five Tribunal consisted of not less than three and not more than the members of the Bar Council appointed for that purpose by the Chief Justice or Chief Judge of the High Court, and one of members so appointed was the President of the Tribunal. The finding of a Tribunal was forwarded to the High Court through the Bar Council and the findinQ: of a District Court was to be forward ed direct to the High . Court with a copy to the Bar Council. On the receipt of the finding the High Court was to fix a date for hearing of the case and notice of the date so fixed was to b~ given to the Advocate concerned and to the Bar Counc;l and the .Advocate General. The High Court was also required under the statute to afford the Advocate concerned and the Bar Council and tile Advocate General an opportunity of being heard before orders were passed in that case.

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Mr. Desai relied on the provisions of the Bar Councils Act, 1926 to show that under the said Act notice was to be given to the Advocate General and that the Advocate General was entitled to be heard and he relied on a decision of the Judicial Committee in Advocate General of Bombay v. Phiroz BharuchaC) and the deci sion of this Court in Bhataraju Nageshwara Rao v. The Hon'ble two Judges of the Madras High Court & Ors.(2) in support of

{1) 62 1. A. 235: 37 Born. L·. R . 722.

(2) [!9551 1. s.c.R. 1055.

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A, P. GANDID V. H. M, SEERVAI (Ray, J.)

925·

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propositions, namP-ly, that the Advocate General could prefer aru appeal and in an appeal preferred by the Advocate concerned, the Advocate General would be a respondent to such an appeal. In Bharucha's case (I) certain Advocates were members of Associa· tions declared unlawful by Government and they were convicted of offences punishable under section .17 ( i) of the Criminal Law Amendment Act, 1908. The High Court did not take any steps against the Advocates on the ground that it did not consider that membership of an unlawful Association would render the Advo the profession. The Advocate cates unfit for the exercise of General of Bombay made applications for special leave before the Judicial Committee to appeal agaim.t the decision of the High Court. The Judicial Committee did not grant any special leave and agreed with the view of the High Court. No question was raised in the applications before the Judicial Committee as to the It should be maintainability of the aplications for special leave. noticed that under the Bar Councils Act there was no provision the for any appeal. Mr. Desai rightly relied on the decision of Judicial Committee not for an actual decision that the Advocate General had a right of appeal but for the purpose of showing that the Advocate General had not only locus standi to make an appli cation for leave but also could be said to have been aggrieved by au order in relation to professional misconduct of an Advocate. The Judicial Committee would not have entered into the merits of the case if tl•e Advocate General had no right to apply for leave to appeal.

The decision of this Court in Bhataraju's case( 2

) was to the· effect that in an appeal preferred to tlie Supreme Coun by an Advocate against whom an order of suspensio,n, was passed by the High Court under section 12 of the Bar Councils Act, the proper respondents would be the complainant, if any, the Bar Council and the Advocate General of the State concerned and not the High Court. The appeal to this Court ln Bhataraju's case( 2 ) was by special leave. This Court held that the Advocate General, the Bar Council and the complainant would be parties tO- the appeal on the ground that notices under the Bar Councils Act had been issued to those persons. The decisions of this Court and the Judicial Com mittee both indicate that the Advocate General under the Bar Councils Act had locus standi in making an application for leave to appeal and being a respondent to an app~al preferred by the Advocate.

The position held by the High Court under the Bar Councils Act 1926 is now occupied by the Bar Council under the Advo cates Act. There are State Bar Councils and there is also a Bar Council of India. Every Bar CounCil is a body corporate. The (1) 62 I.A. 2350

(2) [1955] l S.C.R. 1055.

·926

SUPJEME COURT REPORTS

[1971) 1 S.C.R.

I I

:functions of the St~~e Bar Council are inter alia to admit persons as advocates on its roll; to prepare and maintain such roll; to enter- tain and determine i cases of misconduct against advocates on its roll; to safeguard th.~ rights, privileges and interest of advocates on lay its roll. The functions of the Bar Council of India are to down standards of professional conduct and etiquette for advo cat.es, to lay down the procedure to be followed by the Discipli- nary Committee of the Bar Council of India and the Disciplinary rights, · Committees of the State Bar Councils, to safeguard the privileges and interests of advocates. A Bar Council is empowered under the Act to constitute one or more Disciplinary Committees. Sections 35 to 44 deal with conduct of Advocates and powers of the Disciplinary Committees of the State Bar Councils as also of the Bar Council of India. Under section 35 of the Act where on receipt of a complaint or otherwise a State Bar. Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee. The Disciplinary Committee ·of a State Bar Council, if it does not summarily-reject the complaint, shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate · Gen~ral of the State. The Disciplinary Committee of a State Bar Council after giving the advocate concerned and the Advocate General an opportunity of being heard, may dismiss the complaint 0r reprimand the advocate, suspend the advocate from practice for .such period as it may deem fit, or remove the name of the advocate from the State ron of advocates. Where any notice is issued to the Advocate General, the Advocate General may appear before in the Disciplinary Committee of the State Bar Council either person or through any advocate appearing on his behalf. These provisions establish first that the Advocate General is entitled to a notice of the date of hearing, secondly, that no order can be made by the Disciplinary Committee without giving an opportu nity to the Advocate General of being heard, and, thirdly, that the Advocate General may appear in person or through any advo cate. It cannot be said that the Advocate General is appearing as a friend of the Court The right of the Advocate General to appear is based on statute. The word 'may' is used to indicate the choice of the Advocate General to appear in person or through any advocate. He may choose not to appear at all. But when the Advocate General does appear, he does so by virtue of the statutory rights and powers conf7rred on him. It .is, . therefore, necessary to know as to why notice under the Act 1s g1ven to the Advocate General and why he is to be heard before an order is made by the Disciplinary Committee.

The Judicial Committee in the Gambian case found that the -name of N'Jie was struck off the roll of barristers and solic;ters of

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927

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the Supreme Couri: of Gambia by an order of Abbott, J., Deputy Judge of the Supreme Court in th~ Colony of· Gambia~ The Deputy Judge had jurisdiction to represent the Chief Justice in the exercise of his judicial powers. The power to strike the name of the legal practitioner off the roll was held by the Judicial Com- mittee not to be a judicial power but an administrative one of the Chief Justice of the Supreme Court of Gambia. Therefore, the order of Abbott, J. was without jurisdiction. The West African Court of Appeal undet those Circumstances set aside the ord~r of Abbott, J. The Attorney General of Gambia thereupon preferred the Privy an appeal to the JudiciaL Committee. An appeal to Council lay under section 31 of the West African to Priv¥ Council) Order in Council, 1949. Broadly stated. the pro vision was to the effect that any person aggrieved by any judg meqt of the Court could prefer an appeal to His Majesty. The Judicial Commlttee construed the words 'person aggrieved' occur ring in ·section 31 of the West African Order in Council. 1949 not to be subjected to a restrictive interpretation but to include a person who has a genuine grievance because an order has been D· made which prejudicially affected his interest. The Attorney Gene-' ral of Gambia was found to have sufficient interest for the purpose and the interest was held to be a public one which the Attorney General represented. The Judicial Committee also said that ]f the Judge found the practitioner guilty of misconduct and the West African Court of Appeal of Gambia reversed the decision which went to the jurisdiction of the Judge. or was otherwise ~l point in which public interest was concerned, the Attorney Gene- ral would be a person aggrieved by the decision. The Judicial Committee construed the words 'person aggrieved' to include the Attorney General of Gambia as representing the public interest.

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The 111ost sigrificant feature in sections 35 and 36 of the Act is that the Disciplinary Committee does not either give any notice to o.r hear the complainant. On the contrary notice is given under sectton 36 to the Attorney General and under section 35 to the Adovcate General. The Disciplinary Committee without giving the Attorney General in one case and the Advocate General in another case an opportunity of being heard cannot pass any order against the Advocate concerned.. The Attorney General under Article 76 of the Co.nstitution and the Advocate General under Arti.;le 165 of the Constitution have to discharge the functions conferred on them by or under the Constitution or any 0ther law for the time being in force. The Advocates Act concerns the Advocate and it is in the fitness of things that the Attorney General and the Advocate General uf a State are heard as persons repre senting the profession which assists the litigant public and the courts in the administration of justice. The Attorney General and the Advocates General of States are persons of high standing

928

SUPREME. COURT REPORTS

[1971] 1 S.C.R.

and with long experience in the profession and it is indisputable in proceedings that they will ever adopt any partisan attitude before the Disciplinary Committee. The Advocates Act gives special pre-eminence to the Attorney General and the Advocate General in disciplinary proceedings because it is not an attempt of the Disciplinary Committee to redress the grievance of an indi vidual complainant but to find out whether there is any breach of professional standard and conduct. The high tradition, dignity and purity of the Bar is to be maintained. The Attorney General and the Advocate General are heard because they are heads of their respective Bar and the proceedings affect discipline and dig nity of the Bar and touch the professional conduct of an Advocate. They are not parties to a 'lis'. They have no personal or pecu niary or proprietary interest in the matter. It is manifest that their locus standi and interest is based on professional code of conduct and for the purpose of upholding the purity of the Bar and preser the profession. The vation of correct standards and norms in Attorney General and the Advocates General will uphold the pro fessional discipline, dignity and decorum and that is why no order is made by the Disciplinary Committee without giving them an opportunity of being heard.

The issue before the Disciplinary Committee is whether there has been professional misconduct and the question has to be looked at purely from the point of view of profession. The profession touches the public on the one hand and the courts on the other. On no other basis could the presence of the Advocate Gen~ral be explained.

In a recent decision of this Court in B. M. Madnani v. Com missioner of Workmen's Compensation, Bombay(!) the Commis sioner of Workmen's Compensation preferred an appeal for en hancement of penalties against the Advocate concerned. This Court held that the Coniinissioner was entitled to maintain the appeal as a person aggrieved. Mr. Daphtary at one stage con tended that a complainant would not be a person aggrieved within the meaning of the relevant section ot the Advocates Act to prefer an appeal. The decision of this Court repels that submission. It may not be out of place to notice that the Act uses

the 'party aggrieved'. words 'person aggrieved' and not the words First in disciplinary proceedings there is no party. It is a matter touching the professional conduct of the Advocate. The enquiry is by the Disciplinary Committee. The Advocate is heard. The Attorney General in one case and the Advor:ates General in other cases are heard. They are heard not because they are parties but hecause they represent the interest of the profession. They re present the standards to be maintained in the profession. Suppos,e.

(1) C.A. No. 877 of 1968 dec'ded on October 10, !96R.

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A. P. GANDHI V. H. M, SEERVAI (Ray, J.)

92~

A _the Disciplinary-Committee held proceedings without giviug notice to the A~vocate General or made an order without giving the: Advocate General an opportunity of being heard. In either case the Advocate General would be a person aggrieved. Would the participation by the Advocate General in the proceedings before _ the DiscipJinary Committee alter the position ? Neither on logic- nor on principle could it be said that the Attorney General and the Advocates General who have the right to be heard could bot If they have the rifbt to be- be persons aggrieved by the decision. heard they may l~ave grievance as to the result of the heanng.

8

c

D

E

F

G

H

It was not

The Attorney General and the Advocates General

rer.eive notice and are entitled to be heard by virtue of the provisions in the statute. They are perlonmng statutory duties. They are not the: contemplated in the statute as ordinary counsel. intention of the statute that they would be merely neutral obser vers before the Di~cipJinacy Committee a'nd they would have n() duty to perform. They would have to express their views one It is true that they would be completely free way or the other. from personal favour or disfavour in these matters 1ouching the the Disciplinary professional conduct. Their presence before the Committee is explicable only on the ground of adherinz. to correct professional code. the to Attorney General and the Advocate General to take the view -that in a matter of sufficient gravity a completely inadequate punish ment would not be in public interest of the profession. Similarly, if the punishment is severe in a case which did not merit such: action, the Attorney General and the Advocate General would be persons aggrieved to have it ~orrected.

It would therefore be open

To accede to the contention of Mr. Daphtary that the words: 'person aggrieved' refer only to Advocates would be misreading the provisions. The words 'person aggrieved' will be referable f(} the Advocate ·concerr.ed, the complainant and the Attorney Gene ral or the Advocate General as the case may be. The Attorney General and the Advocate General will be persons aigrieved' because they are interested in maintaining the professional recti tude. The Attorney General and the Advocate General have the lea right of pre·audience. Such right determines that they are ders of the profession in their respective fields. They will ask for maintaining the proper standards of professional ethics. is from that point of view that the Actornev General and the Advo· cate General will be aggrieved persons when they will fin<Pthat the interest of the Bar, the public interest have not been properly safeguarded by decisions of the Disciplinary Committee of the· Bar Council. 169 Su'p CI/{P)· 71-15

It

·

930

StJPREME COURT REPORTS

[1971 j 1 S.C.R.

For these reasons I am ·of opinion that the Advocate General A

of the State of Maharashtra is competent to appeal as a person aggrieved under section 37 of the Advocates Act, 1961.

ORDER

In accordance with the opinion of the majority, the appeal is n

allowed and the order of the Bar Council of India is set aside. There shall be no order as to costs.

V.P.S. ·