ORDER
Harish Chandra, J.
1. These are two criminal miscellaneous cases arising out of Criminal Appeal No. 404 of 1948 in which the applicants in Criminal Misc. case No. 941 of 1949 have appealed against their convictions and the sentences of transportation for life that have been passed upon them. In their application they say that they have engaged Sir Iqbal Ahmad to argue their appeal and pray that permission be accorded to him to appear on their behalf in this Court. The other case--criminal Misc. case No. 940 of 1949--arises out of an application by Sir Iqbal Ahmad himself praying for the permission of this Court to argue the said appeal on behalf of the appellants.
2. Sir Iqbal Ahmad was an advocate of the Allahabad High Court and was later appointed a Puisne Judge of that Court. In or about the year 1933, on his appointment as a Puisne Judge of that Court he gave an undertaking not to practice in the Court or in the Courts subordinate thereto after his retirement. He continued to work as a Puisne Judge of this Court for many years and was, a few years before his retirement, elevated to the office of the Chief Justice of that Court. Some time after his retirement he was entered on the roll of advocates of the Chief Court of Avadh and was thereafter entitled to practise in that Court as also in all Courts subordinate thereto. The High Court at Allahabad and the Chief Court at Avadh were amalgamated with effect from 26th July 1948 by the United Province High Courts Amalgamation Order, 1948, promulgated by the Governor. General under Section 229, Government of India Act. Article 8 of the Order runs as follows :
'(1) The New High Court shall have the like powers to approve, admit, enrol, remove and suspend advocates and attorneys, and to make rules with respect to advocates and attorneys, in the whole of the United Provinces as are, under the law in force immediately before the appointed day exercisable by either of the existing High Courts.
(2) The right of audience in the new High Court shall be regulated in accordance with the like principles as, immediately before the appointed day, are in force with respect to the right of audience in the High Court in Allahabad.
Provided that, subject to any rule made or direction given by the new High Court in the exercise of the powers conferred by this Article, any person who, immediately , before the appointed day, is an advocate entitled to practise or ah attorney entitled to act in either of the existing High Courts shall be recognised as an advocate or an attorney entitled to practise or to act, as the case may be, in the New High Court.'
By virtue of the provisions contained in the proviso to this article, Sir Iqbal Ahmad who was already an advocate on the roll of advocates of the Chief Court of Avadh and entitled to practise in that Court became entitled to practise in the new High Court. The Governor-General, however, on 4th November 1948 promulgated the United Provinces High Courts (Amalgamation) Amendment) Order, 1948 by which was added a further proviso to Art. 8 as follows :
'Provided further that notwithstanding the amalgamation of the existing High Courts all undertakings given by persons who have held office as Judges of either of the existing High Courts or of the new High Court not to practise as advocates within the jurisdiction of either of the existing High Courts shall be deemed to continue in force, and the Chief Justice shall issue directions prohibiting from practice as advocates such persona to such extent as may be appropriate having regard to the terms of their undertakings, and for this purpose the said undertakings shall be construed as applicable to the new High Court.'
Thereafter on or about 25th November 1948, the Chief Justice of the New High Court issued an order which directed that ex-Judges of the Allahabad High Court before its amalgamation with the Chief Court of Avadh who had given an undertaking not to practise within the jurisdiction of this Court were not to appear before the Benches of the High Court sitting at Allahabad or in Courts subordinate thereto in the thirty-seven districts which were under the jurisdiction of the Allahabad High Court before 26th July 1948.
3. By this order Sir Iqbal Ahmad was prevented from practising in the new High Court at Allahabad or in any one of the thirty-seven districts which had been subordinate to the Allahabad High Court before the amalgamation which took place on 26th July 1948, The applicants' contention is that Article 8 of the Amalgamation Order, the new proviso added thereto on 4th November 1948 and the direction issued by the Chief Justice of this Court are ultra vires and that Sir Iqbal Ahmad is entitled to practise in the new High Court without any restriction. His contention is that the undertaking which he had given lapsed with the amalgamation of the Allahabad High Court with the Avadh Chief Court to form what has been described in the amalgamation order as the new High Court. The applications are opposed by the Advocate General.
4. With respect to the applicants' contention that Article 8 of the Amalgamation Order is invalid, reference is made to the Bar Councils Act 1926 (Act XXXVIII [38] of 1926). Section 14 of that Act gives an advocate an unrestricted right to practise in the High Court of which he is an advocate subject to certain exceptions with which we are not concerned. It is argued that this right cannot be taken away by any provisions contained in the Amalgamation Order. But a perusal of Sub-section (2) of Section 1 of that Act will show that the Act applies only to certain specified High Courts and that its application to other High Courts depends upon a notification to be issued by the Provincial Government concerned. The Allahabad High Court as it was before the amalgamation is included in the list of High Courts to which the Act applies. It obviously could not apply to the new High Court unless the Provincial Government issued a notification to that effect in the official gazette. It would thus appear that with the amalgamation of the Allahabad High Court with the Avadh Chief Court, Section 14, Bar Councils Act ceased to apply to Advocates on the roll of either the Allahabad High Court or the Avadh Chief Court and they were not thereafter entitled under Section 14, Bar Councils Act as of right to practise in the New High Court. It was, therefore, necessary for the Governor General acting under Sub-section (2) of Section 229, Government of India Act to make some provision in the Amalgamation Order with respect to the advocates of the two Courts.
5. In Clause (c) of Article 17 of the Amalgamation Order it was provided that:
'references in any Indian law to either of the existing High Courts by whatever name shall, unless the context otherwise requires, be construed as references to the new High Court.'
and in view of this Article, Sub-section (2) of Section 1, Bar Councils Act will be read to include the new High Court also. But the application of all the sections of the Act except Sections 2, 17, 18 and 19 to the High Courts to which the Act applies is barred by Sub-section (3) of that section unless the Provincial Government by notification in the Official Gazette directs that any of those provisions shall come into force in respect of any High Court to which the Act applies. The provisions in Clause (c) of Article 17 of the Order were, therefore, not enough to make Section 14, and certain other sections of the Indian Bar Councils Act applicable to the new High Court and further provision was necessary with respect to the right of advocates on the rolls of the Allahabad High Court and the Avadh Chief Court to practise in the new High Court and with that purpose Article 8 was introduced.
6. It will be noticed that Article 8 of the Amalgamation Order does not give an unrestricted right to the advocates of the two Courts to practise in the new High Court and that right is 'subject' to any rule made or direction given by the new High Court in the exercise of the powers conferred by this Article. The contention, therefore, that Article 8 of the Amalgamation Order takes away or modifies the unrestricted right which the advocates of the two Courts had to practise before the new High Court is meaning, less. It will be noted that the application of the Bar Councils Act to the new High Court also depended upon the provisions of the Amalgamation Order, namely, those contained in para. (c) of Article 17 thereof. The right, was thus the creation of the Amalgamation Order itself and it was open to the Governor-General to place such restrictions upon that right as he considered necessary and I cannot understand how, in this view of the matter, Article 8 of the Amalgamation Order can be regarded as ultra vires. It will be seen that an 'advocate' has been defined in Clause (a) of Sub-section (1) of Section 2, Bar Councils Act as 'an advocate entered in the roll of advocates of a High Court under the provisions of the Act.' It is obvious that after the amalgamation the Advocates on the rolls of the two Courts could not be regarded as advocates on the roll of the new High Court under the provisions of the Act and I cannot understand how Sir Iqbal Ahmad could in any sense be regarded as entitled to the benefit of Section 14, Bar Councils Act.
7. Another argument advanced on behalf of the applicants is that the Governor-General could attain the object which is sought to be attained by Article 8 of the Amalgamation Order by Clause (c) of Article 17, combined with a notification issued by the Provincial Government making Section 14, and certain other sections of the Bar Councils Act applicable to the new High Court. Having regard to the provisions of Section 8 of the Act, it is doubtful if that would have been sufficient for carrying out the object in view. But Section 229, Government of India Act gives power to the Governor-General to make such provision in regard to this and other matters as may appear to him to be necessary, and it is not open to this Court to enquire what was the best method of attaining the object which the Governor. General had in view in regard to any of the matters with respect to which he had the power to make provisions in the Amalgamation Order. It is clear from the above discussion that some provision in regard to the right of the advocates on the rolls of the two High Courts before the amalgamation to practise in the new High Court wag absolutely necessary and the Governor-General was within his rights in providing for it in Article 8 of the Order in exercise of the power given upon him by Sub-section (2) of Section 229, Government of India Act.
8. It is, however, contended that Section 229, Government of India Act does not in fact give the Governor-General the power to make provisions with respect to the right of advocates to practise in the new High Court. Sub-section (2) of Section 229 runs as follows:
'Where any Court is reconstituted, or two Courts are amalgamated, as aforesaid, the Order shall provide for the continuance in their respective offices of the existing judges, officers and servants of the Court or Courts, and for the carrying on before the reconstituted Court or the new Court of all pending matters, and. may contain such other provisions as may appear to the Governor-General to be necessary by reason of the reconstitution or amalgamation.'
9. The contention is that the other provisions contemplated by the sub-section must be provisions of a nature similar to those specifically mentioned in the sub-section. It is said that the doctrine of ejusdem generis will apply and that therefore, these other provisions cannot include provisions such as those contained in Article 8 of the Amalgamation Order. The two provisions specifically mentioned in the sub-section are entirely different from one another--one of the provisions relates to the continuance in their respective offices of the existing judges, officers and servants of the Courts, while the other deals with the carrying on in the new Court of all pending matters. It was held in the case of Tillamanns and Co. v. SS. Kuntsford, Ltd., 1908-2 K. B. 385, that the doctrine of ejusdem generis applies only when there is a genus or class or category. Unless it is possible to find a category, there is no room for the application of this doctrine. That view was followed by the Rangoon High Court in the case of Municipal Corporation Rangoon v. Saw Willie, A. I. R. (29) 1942 Rang, 70: (1941 Rang. L. R 724). In the present case, it is not possible to find a category into which the two specific provisions mentioned in sub-section may be placed. Therefore the doctrine of ejusdem generis cannot be any guide for determining what other provisions are contemplated by that sub-section. In my view it is open to the Governor-General to include in the Order any such provision as may appear to him to be necessary by reason of the amalgamation. As I have said before, there can be no doubt that the matters provided for in Article 8 of the Order were absolutely necessary in view of the amalgamation of the two High Courts and provision therefor was rightly made in the Order. I cannot, however, understand what advantage the applicant can gain if the provisions of Article 8 of the Order are held to be ultra vires the powers of the Governor-General under Section 229, Government of India Act. The result would be that no advocate of either of the two amalgamated Courts would be able to appear and plead before the new High Court and Sir Iqbal Ahmed, being an advocate on the roll of the Avadh Chief Court, will have no right to practise in this Court.
10. My attention has been drawn to the case of In the matter of Refugee Advocates decided by a Bench of this Court on 23rd November : AIR1949All511 . It appears that in that case this Court admitted a number of refugee lawyers from the Punjab and the North Western Frontier Provinces to the roll of Advocates of this Court on the recommendation of the Bar Council at Allahabad. The Court seems to have assumed that Section 8 and certain oher sections of the Indian Bar Councils Act applied to this Court. The question whether they applied or not was not raised and was not considered by the Court at all and the ruling has, therefore, no application to the present case.
11. The next contention urged on behalf of the applicants is that assuming that the Governor-General has the power to make the provisions contained in Article 8 of the Amalgamation Order, he had no power at all to amend the Amalgamation Order and to introduce a further proviso to that Article which has the effect of depriving Sir Iqbal Ahmed of his right to practise in the new High Court. It is said that the power given to the Governor-General under Section 229, Government of India Act, is exhausted once that power has been exercised by him and that he has no further power left in him to add to the orders already passed by him. Reference is made to Sub-section (5) of Section 19, Independence Act. It would appear that that Act gives wide powers to the Governor-General to adapt and modify the Government of India Act, the Orders in Council and the rules and other instruments made thereunder in their application to the Indian Dominion as also to make 'necessary adaptations' in the law of British India as applicable to the Indian Dominion and by Sub-section (5) of Section 19, it is provided that:
'Any power conferred by this Act to make any order includes power to revoke or vary any order previously made in the exercise of that power.'
The argument of learned counsel for the applicant is that the fact that a power to revoke or vary any order previously made in the exercise of the power conferred by the Independence Act was specifically provided for in Sub-section (5) of Section 19 shows that but for this provision such power to revoke or vary any order previously made did not exist. The learned Advocate General has, however, referred me to Section 32, Interpretation Act, 1889, Sub-section (1), of which runs as follows: 'Where an Act passed after the commencement of this Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.'
His contention is that Sub-section (1) of Section 32, Interpretation Act, 1889 gives the necessary power to the Governor-General to exercise the power and to perform the duty imposed upon him by Section 229, Government of India Act, 'from time to time as occasion requires'. It will be seen that the provisions of Sub-section (5) of Section 19, Independence Act, 1948, are wider and it was apparently because the provisions contained in Sub-section (1) of Section 32, Interpretation Act, were not wide enough for the purpose in view that further provision was made in Sub-section (5) of Section 19, Independence Act. The contention of learned counsel for the applicants that after the promulgation of United Provinces High Courts (Amalgamation) Order, 1948 on 19th July 1948, the Governor-General was not entitled to exercise the power conferred or to perform the duty imposed upon him by Section 229, Government of India Act, is, therefore, without force.
12. The argument that the right given to Sir Iqbal Ahmed to practise in the new High Court is a statutory right and that the question whether the undertaking given by him attaches to the new High Court or not is a 'justiciable issue' is not sound. He never had a statutory right to practise in the new High Court. He had a statutory right to practise in the Avadh Chief Court but it ceased with the merger of that Court into the new High Court and whatever right to practise he had thereafter was the result of the provisions contained in the Amalgamation Order of July 1948. As regards the undertaking, the Governor. General, while determining the right of Advocates on the rolls of the two High Courts to practise in the new High Court had every right to consider what the position of such retired Judges of the two High Courts as had given undertakings not to practise after retirement would be with respect to the new High Court and I cannot understand how the power exercised by him in that regard can be regarded as ultra vires. As already mentioned before, the right given to the advocates on the rolls of the Allahabad High Court and the Avadh Chief Court by Article 8 of the Amalgamation Order was not an absolute one and was subject to 'any rule or direction given by the new High Court' and it was open to the Governor-General in the light of other circumstances coming to his notice to place such further restrictions upon it as he considered necessary in the exercise of the powers conferred upon him by Sub-section (1) of Section 229, Government of India Act read with Section 32, Interpretation Act, 1889.
13. A further point raised on behalf of the applicant is that even if the Governor-General had the power to place such restrictions upon the right to practice of persons who had held office as Judges of either of the two High Courts he had no power to delegate to the Chief Justice of the new High Court the power to issue directions prohibiting them from practice as advocates to such an extent as may be proper having regard to the terms of their undertakings. Such delegation of authority is not uncommon in legislative enactments or orders issued under those enactments and I can see no illegality in such delegation of authority to the Chief Justice of the new High Court. The further proviso added by the Amendment Order of 4th November 1948, sets out the principles upon which the right to practise of persons who had held office as Judges of either of the two High Courts would be based and provides that all undertakings given by them would be construed as applicable to the new High Court and all that the Chief Justice was required to do was to pass such orders in accordance with those principles 'as may be appropriate having regard to the terms of their undertakings.' It will be seen that the Amalgamation Order has also given power to the High Court to make rules and orders in regard to various matters. It would be unreasonable to contend that those provisions are ultra vires the powers given to the Governor-General by Section 229, Government of India Act, and I can see nothing illegal in the delegation of the power upon the Chief Justice by the further proviso added to Article 8, Amalgamation Order, to issue appropriate directions to advocates who had held office as Judges of either of the two High Courts in regard to their right of practice in accordance with the provisions of that proviso.
14. Another argument advanced on behalf of the applicant is that in the pre-amble to the amending order Sub-section (1) of Section 229, Government of India Act, 1935 has been referred to although the power to issue orders in regard to various matters connected with the amalgamation of the two High Courts has been given to the Governor-General by Sub-section (2) of that Section. There can be no doubt that this is a mere clerical error. Under no provision of law does it appear to be necessary that the authority that has been given power to issue certain directions or orders shall, while issuing those directions or orders, state under what specific power such orders or directions are being issued by it and that unless this is done such directions or orders would be invalid. As already stated above, my view is that the Governor General had the power under Sub-section (2) of Section 229, Government of India Act to add a further proviso to Article 8, Amalgamation Order, and the United Provinces High Courts (Amalgamation) (Amendment) Order, 1948 was issued in the exercise of that power. The mere fact that in the preamble to that Order Sub-section (1) was erroneously mentioned in place of Sub-section (2) of Section 229, Government of India Act would not in my view make the order illegal.
15. I may also refer to the contention of learned counsel for the applicants that it is open to this Court to determine whether the provisions contained in Article 8, Amalgamation Order, or in the further proviso added thereto by the Amendment Order of 4th November 1948 were in fact necessary. I cannot find any justification for this view in the language used in Sub-section (2) of Section 229, Government of India Act. The Indian Independence Act also gave power to the Governor-General to make necessary adaptations in the law of British India in view of the political changes introduced by that Act. The question whether a Court could go into the question whether any particular adaptation made by the Governor-General in exercise of that power was or was not necessary was considered in the case of Sir Gulab Singh v. Dist. Magistrate of Dehra Dun : AIR1950All11 by a Full Bench of this Court and Sapru J. in the course of his judgment observes :
'That the test provided for 'necessity' is a purely subjective one ; and that the Governor General was the sole judge of it.' The same Judge further observes :
'I do not think we are competent to go into the question, whether the change on 26th August in Regulation III [3] of 1818 was necessary or expedient.
There seems to be no reason why the 'test of necessity' in the present case should, in any sence, be a different one and it is not open to me to consider whether it was in fact necessary or not for the Governor-General to make these provisions in regard to the right of practice of advocate on the rolls of the two High Courts in general and of such advocates as had held office as Judges of either of the two Courts in particular. It is said that the words 'by reason of the constitution or amalgamation after the words 'such other provisions as may appear to the Governor-General to be necessary' give the right to a Court to determine whether a particular provision made by the Governor-General is or is not necessitated by 'reason of the constitution or amalgamation.' I do not see the force of this contention. Where an Act gives a discretion to an executive authority it is not open to a Court to determine whether such discretion was rightly exercised unless it appears that such discretion had not in fact been exercised bona fide. In the present case, however, it is clear that the provisions made by the Governor-General were in fact necessary and the contention is without force.
16. After carefully considering all the points raised on behalf of the applicants my view is that Article 8, Amalgamation Order, the further proviso added thereto by the Governor-General by notification dated 4th November 1948, and the orders issued by the Chief Justice of this Court prohibiting Sir Iqbal Ahmed from practising before the Benches of the High Court sitting at Allahabad or in the Courts subordinate thereto in the thirty-seven districts which were under the jurisdiction of the Allahabad High Court before 26th July 1948 are valid and that Sir Iqbal Ahmed cannot argue criminal Appeal No. 404 of 1948 in this Court at Allahabad.
17. During the course of the argument an application was presented on behalf of Sir Iqbal Ahmed in which it is said that the Allahabad Bar Council had discussed the question of the right of persons who had held office as Judges of the Allahabad High Court or the Avadh Chief Court to appear, plead and act before the new High Court and that he had reason to believe that the, same question had also engaged the attention of all the Judges of the new High Court 'in or about August 1948 and the Hon'ble Judges had given their opinion in writing'. It is prayed in that application that 'this Court be pleased to direct the aforesaid opinion of the Bar Council and the opinion of the Hon'ble Judges to be placed on the record of the case to enable the petitioner to refer to and rely upon them in support of his application.'
I cannot, however, understand how such opinions would be relevant for the purpose of deciding these applications. It is obvious that the matters raised before me in these applications have to be judged independently of any opinion expressed by any person or authority and I reject the application.
18. Before I close this judgment I may add that whether this Court is in law a new Court or not it is to all intents and purposes a continuation of the High Court as it was before 25th July 1948. I, therefore, feel constrained to give expression to a sense of surprise that the applicant in Criminal Miscellaneous case No. 940 of 1949, who had been a Judge of this Court as it was before 26th July 1948, for many years and had also held office as its Chief Justice for several years, should have sought to release himself from the solemn undertaking given by him on his appointment as a Judge of the High Court on what after all are more or less technical grounds.
19. For the reasons given above I reject the applications.
20. Shri A.P. Pandey on behalf of the applicant asks for a certificate of this Court under Sub-section (1) of Section 205, Government of India Act, to enable the applicant to appeal to the Federal Court. I accept the request and give the necessary certificate.