11 7 of 1958
Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights
RK Garg M K Ramamurthi section C Agarwala and D P Singh for the petitioners
The respondent did not appear
306 1961 August 29
The Judgment of the Court was delivered by SK DAs J
This is a writ petition oil behalf of the Bihar State Mukhtars  Association Patna and the Vice President and the General Secretary thereof
The petition has been heard exparte as there has been no appearance on behalf of the Chief Justice and Judges of the Patna High Court who were cited as respondents to the petition
The petitioners contend that certain rules of the Patna High Court made as far back as 1922 under s11 of the Act XVIII of  1879 hereinafter referred to as the Act in respect of the functions
 powers and duties of Mukhtars practising in the subordinate courts are now invalid and void because they contravene the fundamental right of the petitioners guaranteed under article 191g of the Constitution of India and are not saved by cl
6 thereof
The petitioners have in particular challenged the validity of r 2 made by the said High Court under section 11 of the Act and incorporated in Chapter III Part VII of the General Rules and Circular Orders of the High Court of Judicature at Patna Civil 1922
The petitioners pray that an appropriate writ direction or order be issued by this Court declaring that r 2 aforesaid is unconstitutional and there fore void and inoperative
We shall presently read the rule  but before we do so a few facts which are not in dispute may be stated
The petitioners state that the Bihar State Mukhtars  Association was formed some 30 years back with the object of generally protecting the interests of the Mukhtars in the State of Bihar practising in the courts subordinate to the High Court of Patna within the meaning of section 3 of the Act
At its various annual conferences the said Association passed resolutions to move the high Court for the removal of the restriction imposed by r 2 aforesaid on the right of Mukhtars practising in 307 subordinate civil courts
The High Court did not remove the restriction
On July 27 1958 at an emergent Executive Committee meeting of the Association it was
resolved to move  the Supreme Court under article 32 of the Constitution
The present writ petition has been filed in pursuance of that resolution
The enrolment of Mukhtars is made under certain provisions of the Act to which a reference must now be made Under s3 of the Act a subordinate Court means all courts subordinate to the High Court including courts of Small Causes established under Act IX of 1850 or Act XI of 1865
Legal practitioner means an advocate vakil or attorney of any High Court a pleader Mukhtar or revenue agent
Section 6 of the Act empowers the High Court to make from time to time rules consistent with the Act in respect of certain matters including inter alia the qualifications admission and certificates of proper persons to be Mukhtars of the subordinate courts
It appears that by a rule made under section 6 of the Act the High Court of Patna laid down that any person who shall produce a certificate from a committee constituted by the High Court that he has passed an examination in the subjects prescribed from time to time by the High Court for the mukhtarship examination may be admitted
as a Mukhtar to practise in courts subordinate to the High Court
Rule 10 laid down the subjects in which the examination was to be held
This examination was known as the Mukhtarship examination
It was abolished some time in the year 1947 48
Under section 7 of the Act the High Court made certain rules for the grant of certificates to Mukhtars who had passed the necessary examination for admission as prescribed by the rules referred to above
Section 7 also provided for annual renewal of such certificates
The argument of learned advocate for the petitioners is rested
mainly on the pro
visions of section 9 and they must be quoted in full 308 Every mukhtar holding a certificate issued under section 7 may apply to be enrolled in any Civil or Criminal Court mentioned therein and situate within the same limits  and subject to such rules as the High Court may from time to time make in this behalf the presiding Judge shall enroll him accordingly and thereupon he may practise as a mukhtar in any such Civil Court and any Court subordinate thereto and may subject to the provisions of the Code of Criminal Procedure appear plead and act in any such Criminal Court and any Court subordinate thereto
 Section 10 says in effect that except as provided by the Act or any other enactment t for the time being in force no person shall practise as a Mukhtar in any Court unless he holds a certificate issued under s7 and has been enrolled in such court or in some court to which it is subordinate
Then come section 1 1 under which the impugned rule was made
This section is in these terms
Notwithstanding anything contained in the Code of civil Procedure the High Court may from time time make rules declaring what shall be deemed to be the functions powers and duties of Mukhtars practising in the subordinate courts and in the case of a High Court not established by Royal Charter in such Court
 The High Court of Patna made a number of rules defining the functions powers and duties of Mukhtars practising in the subordinate courts
One of these rules is r 2 which is in these terms
Rule 2 A Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature  and
effect of his application or to offer any legal argument or to examine any witness without the leave of the Court specially given
 309 The argument of learned Advocate for the petitioners is this
He has submitted that s9 of the Act gives every Mukhtar holding a certificate issued under s7 the right to apply to be enrolled in any Civil or Criminal Court subordinate to the High Court and on enrollment in accordance with the rules  he has the right to practise as a Mukhtar in any Civil Court and in Courts subordinate thereto and  has further the right to appear plead and act in any Criminal Court
This right of practice learned Advocate for the petitioners has contended cannot be curtailed and section 11 which empowers the High Court to Make rules declaring what shall be deemed to be the functions powers and duties of the Mukhtars practising in the subordinate courts does not empower the High Court to make a rule which curtails the right given by s9
His argument further is that the impugned rule curtails the right of a Mukhtar to practise in the Civil Courts inasmuch as it says that a Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature and effect of his application or to offer any legal argument or to examine any witness without the leave of the court specially given
He has contended firstly that the rule is in excess of the rulemaking power under section 11 and secondly is An unreasonable restriction on the right guaranteed under article 191g of the Constitution
The simple question for decision really is this is the impugned rule in excess of the powers given to the High Court under section 11 of the Act  If the rule is intra vires the Act then clearly enough there has been no violation of any fundamental right of the petitioners
The right of the petitioners to practise in the subordinate court a was create d by the act
In the arguments before us there was no challenge to the constitutional validity of section 11 of the Act as permitting
an unreasonable restriction of a guaranteed right if on a proper construction that section enabled the High Court to regulate the right 310 of practice of Mukhtars
The complaint before us was that the impugned r 2 was not justified by section 11 of the Act
Therefore the only question which we need consider is whether the impugned rule is in excess of the authority given by section 11 of the Act
It seems to us that the impugned rule is clearly within that authority
The learned Advocate for the petitioners has
sought to make a distinction between the right to practise as given by section 9 and the functions powers and duties as mentioned in section 1 1
Relying on the majority decision in Aswini  Kumar Ghosh and another vs Arabinda Bose  another1 he has submitted that the right to practise means the right to appear and plead as well as to act on behalf of suitors in the subordinate courts the power of the High Court to make rules under s1 1 of the Act as respects the functions powers and duties of Mukhtars practising in the subordinate courts merely means that the High Court may give effect to the right given under section 9 by making rules but it cannot curtail that right  when therefore the High Court made the impugned rule restricting the right of Mukhtars to plead in civil courts it did something in excess of the power given by section 11
We are unable to accept this line of argument as correct
Sections 9 and 1 1 of the Act must be read together and it would be wrong to treat the right to practise given by section 9 as
dissociated from the functions powers and duties of Mukhtars referred to in section 1 1
The learned Advocate for the petitioners is reading the two sections as though one section gives an absolute right and the other section merely empowers the making of rules to effectuate that right
That we do not think is a proper reading of the two sections
It is worthy of note that under section 9 itself a distinction is made between the right of a Mukhtar to practise in civil courts and his right to appear plead and act in any criminal
court
In express terms section 9 gives every 1  311 Mukhtar the right to appear plead and act in any criminal court  it does not however give such an unlimited right in a civil court
On the contrary it merely says that on enrolment a Mukhtar may practise in any civil court but under section 11 the High Court may make rules declaring what shall be deemed to be the functions powers and duties of Mukhtars practising in the subordinate courts
It is clear to us that in declaring what shall be the functions and powers of mukhtars practising in the subordinate courts the High Court can so delimit them as to regulate the right of practice
It will be wrong to treat the functions and powers as dissociated from the right to practise
The right to practise Must depend on the functions and powers
It is also worthy of note that the expression used in section 11 of the Act is much wider than the expression used in section 15 of the Indian Bar Council Act 1926 Act XXXVIII of 1926 which gives the Bar Council the power to make rules to provide for and regulate the rights and duties of Advocates of the High Court
We do not think that the majority decision in Aswini Kumar Ghosh vs Arabinda Bose 1 is of any assistance to the petitioners
That decision depended on the interpretation of section 2 of the Supreme Court Advocates Practice in High Courts Act 1951
That section provided that notwithstanding anything contained in the Bar Councils Act or any other law regulating the conditions subject to which a person not entered in the roll of Advocates of a High Court may be permitted to practise in that High Court every Advocate of the Supreme Court shall be entitled as of right to practise in any High Court whether or not he is an Advocate of  that High Court
It was held by the majority that a rule made by a High Court which denied to an Advocate of the Supreme Court the right to exercise an essential part of his function by insisting oil a dual agency on the Original Side was much more than a rule 1 312 of practice and constituted a serious invasion of his statutory right to practise and the power of making such a rule unless expressly reserved was repugnant to the right conferred by section 2 aforesaid The point to be noticed is that the majority held that unless the power was expressly reserved by the statute a rule could not be made repugnant to the right conferred by section 2 of the
Supreme Court Advocates Practice in High Courts Act 1951
If it be held that sections 9 and 1 1 of the Act must be read together and functions and powers mentioned in s11 are not dissociated from the right to practise mentioned in a 9 then it is clear enough that section 1 1 expressly reserves the power of the High Court to make rules declaring what shall be the functions powers and duties of Mukhtars practising in the subordinate courts
If this be the correct interpretation of sections 9 and 11 of the Act then the principle laid down by the majority in Aswini Kumar Ghosh vs Arabinda Pose is if no assistance to the petitioners in the present case
For the reasons given above we hold that r2 of the rules made by the High Court under section 11 of the Act is not in excess of the rule making power and the petitioners cannot complain of any violation of their fundamental right to practise the profession to which they have been enrolled under the provisions of the Act
The petition fails and is accordingly dismissed
As there has been no appearance on behalf of the respondents there will be no order for costs
Petition dismissed


Summary:
Section 9 of the  entitles a duly enrolled Mukhtar to Practise in any Civil Court and section 11 thereof empowers the High Court to make rules declaring what shall be deemed to be the functions powers and duties of Mukhtars practising in the subordinate Courts
Rule 2 framed under section 1 1 lays down that a Mukhtar shall not be allowed to address any Civil Court except for the purpose of stating the nature
and effect of his application or to offer any legal argument or to examine any witness without the leave of the Court
The petitioners contended that r 2 was in excess of the rule making power under section 1 1 and was an unreasonable restriction on their rights under article 19 1 g of the Constitution
Held that sections 9 and 1 1 of the Act must be read together and the right to practise given under section 9 cannot be dissociated from the functions powers and duties of Mukhtars as contemplated under section 11
In declaring what shall be the functions powers and duties of a Mukhtar the High Court may by its rules so delimit them as to regulate their right of practice in the Civil Courts and such delimitation is no violation of their fundamental right to practise the profession as allowed under the Act
Aswini Kumar Ghosh vs Arabinda Bose  explained and distinguished