1973 (9) TMI 110 - HC - Indian Laws

Petition transferred to Original Side for disposal under Article 226

The Court upheld the preliminary objection, determining that the petition fell under Article 226 and should be heard in accordance with the Original Side ... - Issues Involved: Competency of the Bench, Jurisdiction under Articles 226 and 227, Validity of Rule 35 of the Bombay High Court (Original Side) Rules, 1957, Enforcement of Section 30 of the Advocates Act, 1961, Supervisory jurisdiction of the High Court.Issue-wise Detailed Analysis:1. Competency of the Bench:The learned Advocate General and Mr. Ashok Desai raised a preliminary objection regarding the competency of the Bench to entertain the petition on the Appellate Side. The Court examined the facts and determined that the petition, based on its averments, must be said to have arisen substantially within the limits of Greater Bombay. Therefore, the petition should be heard in accordance with the Original Side Rules (O.S. Rules) and not the Appellate Side Rules (A.S. Rules). The objection was found to be well-founded, and the Court upheld it.2. Jurisdiction under Articles 226 and 227:The petitioner sought relief under Articles 226 and 227 of the Constitution. The Court noted that Article 227 invests the High Court with supervisory jurisdiction over subordinate courts and tribunals. However, the Assistant Master, whose order was in question, is an officer of the High Court, and his acts are subject to the supervision of the Chamber Judge. Therefore, the Court cannot exercise supervisory jurisdiction over itself. The Court concluded that Article 227 was inapplicable in this case, and the petition should be heard under Article 226, which pertains to the jurisdiction of the High Court to issue writs.3. Validity of Rule 35 of the Bombay High Court (Original Side) Rules, 1957:The petitioner challenged Rule 35 of the O.S. Rules, which disables any advocate from appearing in matters unless instructed by an attorney or if the advocate is a Supreme Court advocate. The petitioner argued that this rule was violative of Articles 14 and 19 of the Constitution and the provisions of the Advocates Act, 1961. The Court did not delve deeply into the validity of Rule 35, as the primary issue was the jurisdiction and competency of the Bench to hear the petition.4. Enforcement of Section 30 of the Advocates Act, 1961:The petitioner sought a writ directing the Union Government to enforce Section 30 of the Advocates Act, which confers unfettered rights on advocates to practice before every court, tribunal, and authority in India. The Court noted the petitioner's grievance regarding the non-enforcement of Section 30 and acknowledged the representations made by advocates and the Bar Council. However, the Court emphasized that the main grievance was the denial of the right to practice on the Original Side of the High Court, and the implementation of Section 30 was inseparably linked to this claim.5. Supervisory Jurisdiction of the High Court:The Court addressed the contention that the Assistant Master is a subordinate court or tribunal within the meaning of Article 227. The Court found this contention untenable, stating that the Assistant Master is an officer of the High Court, and his judicial powers are subject to the supervision of the Chamber Judge. Therefore, Article 227 could not be invoked to correct supposed or true errors of the Judge or the officers of the High Court. The Court concluded that the supervisory jurisdiction under Article 227 was not applicable in this case.Conclusion:The Court upheld the preliminary objection, holding that the petition was virtually under Article 226 of the Constitution and the subject matter substantially arose within the limits of Greater Bombay. Consequently, the petition was liable to be heard in accordance with the O.S. Rules, and its entertainment on the Appellate Side was not justified. The Court ordered the office to send the papers to the concerned section of the Original Side for disposal in accordance with the rules.