Judgement

SHELAT. J.:- This appeal by certificate raises the question as to the scope of entries 77 and 78 in List l and entry 26 in List III of the Seventh Schedule to the Constitution.

2. The question arises in the following manner:

3. On a complaint by the Subordinated Judge that the appellant, while taking inspection of the Court record in an arbitration matter pending before his Court, had mutilated the copy of a notice in that record by wilfully tearing a portion thereof, the District Judge, Delhi filed a report against the appellant before the Delhi State Bar Council for taking action under the Advocate (Act, 25 of 1961 hereinafter refereed to as the Act). The Disciplinary Committee of the said Council after hearing the appellant found him guilty of professional misconduct and ordered his suspension for one year under S. 35 (3) (c) of the Act. An appeal filed by the appellant under S. 37 before the Bar Council of India failed. Thereupon he filed an appeal against the said order under S. 38 in this Court. The appeal was placed for preliminary hearing and summarily rejected at that stage. The appellant thereafter filed a writ petition in the High Court of Punjab (Delhi Bench) for quashing the said order of suspension, the order of the appellate authority confirming the said order and the order of this Court dismissing the appeal. He thereafter filed a review petition against the dismissal of his appeal contending, inter alia, that rule 7 of 0. 5 of the SC Rules was ultra vires S. 38 of the Act. The review petition also was dismissed.

4. At the hearing of his writ petition the appellant, inter alia, contended that S.38 of the Act was ultra vires Art. 138 (2) of the Constitution inasmuch as the appellate jurisdiction conferred on this Court by S. 38 fell under entry 26 in List III and that there being no special agreement between the Government of Indian and the Government of any State as required by clause (2) of Art. 138, S. 38 was invalidly enacted. He also contended that 0. 5, R. 7 of the SC Rules under which the appeal was placed for preliminary hearing was ultra vires S. 38 as the said rule cut down and impaired his right of appeal under S. 38. Lastly, he contended, that the decision, of the Bar Council of India was bad for the several grounds alleged by him in his writ petition. The learned Single Judge who heard the writ petition rejected tines, contentions and dismissed it. As regards the first contention he held that clause (2) of Art. 138 did not apply and that it was clause (I) of that Article which was applicable as the subject matter of the Advocates Act fell under entry 77 of the Union List. As to the other two contentions he held that rule 7 of 0 5 was valid and did not contravene S. 38 that the Bench before which the appeal came up for preliminary hearing had heard the appel1ant s counsel and in addition had called for production of a document desired by him. There was no affidavit by Counsel appearing for him that he was not heard on any point which he desired to contend. He also held that the appellant had specifically raised the contention as to the vires of the said rule in his review petition and that that contention having been rejected, the appellant could not reagitate it in the writ petition. He also held that the appellant was similarly not entitled to reagitate the question as to the merits of the said order of suspension, the same having been consider and rejected at the time of the preliminary hearing of his appeal. Aggrieved by the order of the learned Single Judge, the appellant filed a Letters Patent Appeal. At the hearing of that appeal the appellant s counse1 conceded that he could not raise any contention on the merits of the case in view of this Court having disposed of those very contentions and that therefore he would confine his arguments only to the question of the vires of S. 38. The learned Judges, who heard that appeal were of the view (1) that the Act was a composite piece of legisla