P (PLP)

The High Court of East Bengal in order to give effect to the provisions of section 8 subsection (2) of the Bar Councils Act which require the High Court to prepare and maintain a roll of advocates of the Court, invited applications from persons desiring their names to be brought on the roll of Advocates of the High Court in East Bengal, and fixed the 14th February, 1948, as the last date for receiving the applications. It may be noted here that the applicants before us all applied after the 14th February, 1948; By reason of section 8 (1). of the Bar Councils Act, which provides that:

" No person shall be entitled as of right to practise in any High Court, unless his name is entered in the roll of the Advocates of the High Court maintained under this Act ", a person would have ceased to have any right to practise in this High Court, unless his name was brought on the roll of this Court. Evidently it was because of this that these applications for enrol ment were made, The Indian Independence Act by section 18 (3) provided that laws of British India, which would include the Stamp Act, existing immediately before the appointed day, shall so far as applicable and with the necessary adaptations continue as the law of each of the new Dominions until altered by the Legislature of the Dominion in question or other law making authority; The necessary, adaptations contemplated in the section were carried out by the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947, which by Article 4 provides as follows :‑ (1) "Where an existing Pakistan law contains a provision defining the territories to which the law extends, or a provision referring to the territories which are within the scope of that provision, that provision shall be 3o adopted as to exclude any territories which on the appointed day are not to form part of the territories of Pakistan. (2) " Without prejudice to the general effect of the preceding paragraph, reference in any existing Pakistan law to the whole of British India " (or " British India ") ...shall except where the reference occurs in a title or preamble or any citation or description of an Act, Ordinance or Regulation and except where the context otherwise requires, be replaced by references to " All the Provinces of Pakistan " ......... The effect of this on the Stamp Act would be that the Stamp Act, which before the 15th August, 1947, had its local extent by its section 1 (12) to the whole of British India will extend on and from the 15th August, 1947, to all the Provinces of Pakistan., The intention of section 18 of the Indian Independence Act and the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947, was to continue the Act after the appointed day to the portion of British India which has now' become Pakistan. It does not appear that it was intended that there would be any absolute break from the past or that the application of the Act to Pakistan after the appointed day should be as if it was starting with a clean slate. In other words, the rights acquired and liabilities incurred under the Act before the appointed day were to be continued until a contrary provision was made by amendment or some other legislation. Mr. Hamoodur Rahman appearing on behalf of the Bar Association contended in the first instance that no part of Article 30 of Schedule I of the Stamp Act applied to such of the applicants as were Advocates of the Calcutta High Court before their application. He argued that inasmuch as by the proviso to Article 6 of the High Courts (Bengal) Order, 1947, it was provided that an Advocate who was entitled to practise in the Calcutta High Court shall be recognised as entitled to practise in the East Bengal High Court, their applications did not amount to applications for entry as contemplated in Article 30 of Schedule I to the Stamp Act, and if in their case it was not a case of " entry " no question of payment of stamp duty arises. We are unable to accept this proposition. Nothing appears from the High Court (Bengal) Order, 1947, by which the right of the East Bengal High Court to prepare and maintain a roll of its own has been taken away, and it cannot be said that for purposes of section 8 of the Bar Councils Act the order contemplated that the roll of the Calcutta High Court would be treated as the roll of the High Court in East Bengal. The question of entry is separate from the question of eligibility or qualifications by which) an advocate would be entitled to be brought on the roll of High Court; and the very fact that these applications have beer made by these persons to be brought on the roll of the East Bengal High Court shows that the applicants themselves felt that the fact that their names were borne on the roll of the Calcutta High Court would not under the High Courts (Bengal) Order, 1947, entitle them to practise in the East Bengal High Court without being brought on its roll. The next point argued by Mr. Rahman was that even if it is a case‑ of entry, it is not an entry under one of the three enact ments mentioned in Article 30 of Schedule I to the Stamp Act. Article 30 should be read with section 3 of the Act which provides the operative portion of the enactment. Section 3 of the Stamp Act is as follows :‑ " Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in that Schedule as the proper duty therefore respectively, that is to say :-- (Article 30 of Schedule I to the Stamp Act is as follows :) "Entry as an Advocate, Vakil or Attorney on the Roll of any High Court (under, the Indian Bar Councils Act, 1926 or) in exercise of powers conferred on such Court by Letters Patent or by the Legal Practitioners Act, 1884 . Exemption Entry of an Advocate, vakil or attorney on the roll of any High Court when he has previously been enrolled in a High Court. The 3 enactments under which a High Court can enter an Advocate on its roll, namely, the Bar Councils Act, 1926, the Letters Patent and the Legal Practitioners Act, 1884, are the only provisions under which a High Court can enrol an Advocate, and the entry in the present cases would be an entry under the Bar Councils Act, 1926, read with the Letters Patent of the Calcutta High Court, which by application of Article 5 of the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947, should be read to have reference to the High Court of East Bengal. It is conceded that this Article applies only to an existing law in which a High Court is particularly and specifically men tioned and not where the words " High Court " are generally used. It was argued in support of this contention that inasmuch as the Advocates of the Calcutta High Court were given certain rights under the proviso to Article 6 of the High Court (Bengal) Order, 1947, their entry would be under that order. In the first place this right has not been given by any positive provision in the order, and has been only indirectly given in the proviso, and secondly, it was made subject to any rule or direction to be made by the High Court. The order does not purport to abrogate any provision of the Bar Councils Act. Besides this, the order which the Governor‑General was authorised to promulgate was intended to be a transitory provision for the purpose of carrying out the Independence Act without dislocating the existing administration of the country. We do not think this contention has any substance. Thirdly, Mr. Rahman argued that in any event these Advocates came within the exemption clause of Article 30 of Schedule I to the Stamp Act. Now we proceed to examine Article 30 of Schedule I to the Stamp Act in its bearing on the right to exemption. We have already said that the Independence Act and the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947, continued the old law with rights acquired and obligations incurred under it. The effect of the Pakistan (Adaptation of Existing Pakistan Laws) Order, 1947 read with section 18 (3) of the Independence Act and section 1 (2) of the Stamp Act will be that whatever was done before the appointed day, namely, the 15th August, 1947, in British India will continue to be valid in Pakistan after the 15th August, 1947, the expression " Any High Court " occurring in Article 30 of Schedule I to the Stamp Act will mean any High Court in British India, if the reference is to the point oS time before the 15th August, 1947, and to a High Court in Pakistan if the reference is to any time after the appointed day. The word " entry " so far as Pakistan is concerned will relate to all entries present or future on and from the 15th August, 1947. The expression previously been enrolled in a High Court " includes and extends to enrolment made in a High Court in British India before the 15th August, 1947. The word ` previously indicates that something done before the moment when by the adaptation the Stamp Act began to apply to Pakistan, would also be taken into consideration in considering the question of exemption. As we have already said that before the 15th August, 1947, the Stamp Act extended to the whole of British India, previous enrolment in any of the High Courts in British India would entitle an Advocate, who seeks subsequent entry on the roll of the High Court of East Bengal, to this exemption.: Our answer to the question referred to us therefore is that the words " a High Court " in, the exemption clause of Article 30 include all Courts of British India before the appointed day, viz. the 15th August, 1947 and refer to the High Courts of Pakistan after that day. The result is that according to our finding all those applicants who were enrolled in any High Court in British India before the appointed day would be entitled to exemption. The same view was taken in the case of Refugee Advocates reported in A. I. R. (36) 1949 All. 511, as will appear from the concluding paragraph of the judgment. They are all cases of Advocates who were enrolled previously in a High Court in British India before the appointed day and were held to be entitled to exemption. The judgment does not give any reason to support the view but the result was the same at which we have arrived. It now remains for us to deal with the applications of persons who were first enrolled in the Calcutta High Court after the appointed day and claim exemption from the payment of stamp duty under Article 30 of Schedule I to the Stamp Act. These are only a few amongst the numerous applicants. We have already dealt with the general principle which would apply to these cases, but it was argued on behalf of some of them that inasmuch as sanads have already been issued to them they could not be called upon to pay the stamp duty. We do ‑not think that there is any provision of law which exempts them from paying the stamp duty if they are otherwise liable to it even if the sanads have already been issued to them by the office, most probably by inadvertence. To our mind the only way by which they can get exemption from the payment of stamp duty is to approach the Provincial Government which we understand is the collecting Government to reduce or remit the duty in their favour by an order under section 9 of the Stamp Act, with which this Court has got no concern. However, it appears that in some of these cases payment of stamp duty in the other High Court was made under misapprehension; as the Bar 'Council took some time to be set up in this Province, pending which the regular machinery for enrolment was not functioning here. Such cases as those in which the first enrolment in the other High Court was made under an honest mistake or other stress of circumstances would appear to deserve favourable consideration by the proper authority. CHOWDHURY, J.-I agree. K.M.A/A.H Reference answered.