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HIGH COURT OF CALCUTTA
KALYAN JYOTI SENGUPTA
CHUNILAL BASU - Appellant
Versus
HONble CHIEF JUSTICE OF THE HIGH COURT AT CALCUTTA - Respondent
. Of .
Decided On : May 15, 1972
LETTERS PATENT - JURISDICTIONAL LIMITS - ADVOCATES ACT - CONSTITUTIONALITY - WRIT PETITION - DISMISSAL - CLASSIFICATION - DISCRIMINATION - REASONABLE CLASSIFICATION - HISTORICAL REASONS - GEOGRAPHICAL CLASSIFICATION - EQUALITY BEFORE LAW - EQUAL PROTECTION OF LAWS - UNFETTERED POWER OF SELECTION - LEGISLATURE - CLASSIFICATION BASED ON GEOGRAPHICAL OR OCCUPATIONAL BASIS - RATIONAL RELATION TO OBJECT OF ENACTMENT - PRESUMPTION OF VALIDITY - ONUS ON PETITIONER TO SHOW DISCRIMINATION - SPECIAL LAWS FOR SPECIAL AREAS - TERRITORIAL DISCRIMINATION - DIFFERENT LAWS IN DIFFERENT AREAS - HISTORICAL REASONS - GEOGRAPHICAL CLASSIFICATION - REASONABLE CLASSIFICATION - DELEGATION OF POWER TO HIGH COURT TO FRAME RULES - UNFETTERED POWER - REASONABLE RESTRICTION - VESTING OF DISCRETION IN HIGH COURT - UNIFICATION OF BAR - ADVOCATES ACT, 1961 - SECTIONS 24, 34(2)(III), 34(3) - CONSTITUTION OF INDIA, ARTICLES 14, 225, 372.
Fact of the Case:
Petitioners, citizens of India, challenged the constitutionality of the Letters Patent of 1865, the Calcutta High Court (Jurisdictional Limit) Act, 1919, and sections 34(2)(3) of the Advocates Act, 1961, on the ground that they offended Article 14 of the Constitution of India. A similar application was filed by petitioner No. 2, Sri E. H. Tippo, which came before D. Basu, J. for consideration as to its maintainability. The said petition was dismissed on the ground that there were not sufficient averments to show which would render the alleged classification unreasonable and also to show how they were affected by the offending law. It was held that unless such averments were made, the opposite parties could not get an opportunity to controvert such allegations or to set up further grounds for which the classification, if any, may be sustained. D. Basu, J. however, permitted them to file fresh application either by themselves or along with others with proper averments. The said order was passed in C. O. 6796 (W) of 1968 on Jan. 25, 1971. After that, the present application has been filed on 5.2.71.
Finding of the Court:
1. The Letters Patent of 1865 is not ultra vires the Government of India Act, 1935 or of the Indian Independence Act 1947 and as such these Letters Patent are still in force within the meaning of Article 372 read with Article 225 of the Constitution of India. 2. The Calcutta High Court (Jurisdictional Limits) Act 1919 is not violative of Article 14 of the Constitution and as such it is not ultra vires the Constitution. 3. Clause (iii) of sub-section 2 of section 34 of the Advocates Act is ultra vires and that it in any way offends article 14 of the Constitution.
Issues: 1. Whether the Letters Patent of 1865 is ultra vires the Government of India Act, 1935 or of the Indian Independence Act 1947? 2. Whether the Calcutta High Court (Jurisdictional Limits) Act 1919 is violative of Article 14 of the Constitution? 3. Whether clause (iii) of sub-section 2 of section 34 of the Advocates Act is ultra vires and that it in any way offends article 14 of the Constitution?
Ratio Decidendi: 1. The Letters Patent of 1865 was replaced by the Letters Patent of 1862. The said Letters Patent was the law in force and regulated the powers of the High Court in Calcutta. Thus the said definition is of no avail to the petitioner. In addition reference may be made to sec. 18 (3) of the Indian Independence Act, which again saved the existing laws. So Mr. John's contention in this respect is not acceptable. 2. The cumulative effect of these clauses is also to save the laws in force and as such Mr. Deb has contended that under no circumstances the Letters Patent can be said to have been repealed or to have come to an end. 3. The Letters Patent, being the law in force and also being the law administered, the same were not affected by the definition of the "existing Central Law". As such the said contention of Mr. John fails. 4. The Calcutta High Court (Jurisdictional Limits) Act 1919 is permissible under the law and it does not offend article 14 of the Constitution. 5. The petitioners can be said to have been placed amongst the persons similarly circumstanced in the area. People residing outside the jurisdiction as fixed by Calcutta High Court (Jurisdictional Limits) Act 1919 can be said to be a class by themselves and those persons who are living inside the jurisdiction so settled may also be said to be a class to be treated similarly. As such there cannot be any discrimination amongst the persons so placed in those different areas. 6. The classification made by legislature would be presumed to be reasonable unless the contrary is alleged and established by the petitioner. 7. The historical evolution of the judicial system as well as of socio-economic complex of our country is traversed it is seen that the different Presidency Towns are replete with peculiar features of their own, necessitating special provisions in law that are distinct from other areas of the States where such Towns are situated. This distinctive provisions in law which have grown out of special and peculiar socio-economic needs of such areas are recognized by law as reasonable classification and as such cannot be impugned on the ground of discrimination violative of Article 14 of the Constitution. 8. In the same State different laws may be appealable on historical reasons and geographical classification is permissible. 9. The impugned sections, namely, clause (iii) of sub-section (2) and sub-section (3) of section 34 of the Advocates Act are not ultra vires the Constitution and that they do not offend Article 14 of the Constitution and as such they cannot be struck down.
Final Decision: The application fails and the Rule is discharged. In view of the nature of the application no order as to cots is made. Applications fail and Rule discharged.
( 1 ) THE petitioner who are citizens of India have challenged the constitutionality of the Letters Patent of 1865, the Calcutta High Court (Jurisdictional Limit) Act, 1919 and section 34 (2) (3) of the Advocates Act, 1961 on the ground that they offend the provisions of Article 14 of the Constitution of India.
( 2 ) SIMILAR application was filed by the petitioner No. 2, Sri E. H. Tippo and another which came for consideration before D. Basu, J. as to its maintainability. The said petition was dismissed on the ground that there were not sufficient averments to show which would render the alleged classification unreasonable and also to show how they were affected by the offending law. It was held that unless such averments were made the opposite parties could not get an opportunity to controvert such allegations or to set up further grounds for which the classification, if any, may be sustained. D. Basu, J. however, permitted them to file fresh application either by themselves or along with others with proper averments. The said order was passed in C. O. 6796 (W) of 1968 on Jan. 25, 1971.
( 3 ) AFTER that, the present application has been filed on 5. 2. 71. The petitioner No. 1 is an Advocate practicing in this High Court. The petitioner No. 2 is a journalist, auditor, printer and publisher of various newspapers - periodicals and a Director of Engineering Times Publication (P) Ltd. having its registered office at 8, Dharmatala Street, Calcutta. They made separate averments of their own while challenging the impugned Acts. According to the petitioner No. 1, he is to practice even before the Appellate Side of this High Court and also in the mofossil Court like Alipore. In Alipore Court he can be directly engaged b y the client and he can also receive his fees directly from them. Whereas in the Original Side he can only accept the brief through attorneys and his fees through them. Direct appointment and payment of fees, according to him, is full proof original and impressive and also it is satisfactory. His further contention is that the Original Side's rules, customs and practices affect the petitioner's right to practise, freely and without any hindrance and as such these rules, customs and practice are discriminatory. By way of example he has said that there are two lists (i) one for Original Side (ii) and another for Appellate Side. For this procedure he is to incur unnecessary expenditure for subscribing two lists.
( 4 ) THE petitioner No. 1 further states that the provisions of the Letters Patent as well as Calcutta High Court (Jurisdictional Limits) Act 1919 are illegal, void and ultra vires and injurious to the petitioner practicing as an Advocate with all his rights and privileges conferred by the Advocates Act, 1961 and/or discriminatory under Article 14 of the Constitution of India.
( 5 ) NEXT comes the averments made by the petitioner No. 2 who is a journalist about whom reference has already been made. In connection with carrying his profession as a publisher and owning properties and in course of his business both at Calcutta and outside of its jurisdiction he has to file frequently cases in different courts. His contention, inter alia, is that the trial of suits in the very first instance by a High Court Judge is accredited with much better advantages with privileged limitations regarding the appeal stage and that such adjudication eventually turns out to be more speedy, economic and convenient, and that such advantage is not available in Alipore or other Mofussil Couts. His further contention is that had there been a single jurisdiction and system of doing justice at least within a conceivable and reasonable set of conditions including area, forum, facilities, representation by Advocates etc. a person may get much better reatment and also good result in such cases.
( 6 ) BOTH the petitioners have challenged the validity and vires of the Calcutta High Court (Jurisdictional Limits) Act 19
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