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Bhima Rao Judgment
Bhima Rao Judgment
com
+W.P.(SR).NO.208510 of 2017
%Date: 21-11-2017
#Between:
1. U.D. Jai Bhima Rao, S/o. U.K. Rao, Advocate, R/o. H.No.13-5-
431/5/C1, Tallagadda, Hyderabad.
2. M. Chalapathi, S/o. M. Kotaiah, Advocate, R/o. H.No.38-16-103/C,
Shivanagar Colony, Sainikpuri x Roads, Secunderabad-500 094.
3. T.V. Ramesh, S/o. T.V. Ramana, Advocate, R/o. H.No.4-6-355/A/1,
Esamia Bazar, Koti, Hyderabad 500 027.
.. Petitioners
And
<GIST:
> HEAD NOTE:
? Cases referred
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practicing on the file of this Court, seeking the issue of a writ of quo
the above writ petition is that the 3rd respondent herein did not practice at
any point of time on the file of the High Court of Judicature at Hyderabad
and that he had always been a practitioner of law in the Muffasil Courts.
Therefore, the petitioners contend that the 3rd respondent did not satisfy
4. At first blush, we thought that the writ petition could have been
filed out of ignorance of law, since the issue raised by the petitioners has
the Supreme court and it is no longer res integra. But a perusal of the
affidavit filed in support of the writ petition shows that it was not out of
ignorance, but out of something else, that the petitioners have come up
with such a stand. It is quite unfortunate that despite knowing the law
petition, contending not only that the appointment of the 3rd respondent
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was contrary to law, but also contending that all the decisions of the
Delhi1, that the object of the Advocates Act, 1961 was to constitute one
common Bar for the whole country. In paragraph-10 of its decision in O.N.
Mohindroo, the Constitution Bench of the Supreme Court pointed out that
The Constitution Bench further observed that all those who have been
enrolled have the right to practice in the Supreme Court as well as in the
High Courts.
with a petition seeking the issue of a writ of quo warranto challenging the
High Court. The basis on which the challenge to the appointment of the
1st respondent before the Supreme Court was made, was that he was not
an Advocate of a High Court within the meaning of Article 217 (2) (b) of
the Constitution.
the Supreme court took note of the language employed in various statutes
such as the Legal Practitioners Act, 1879, the Indian Bar Councils Act,
1
AIR 1968 SC 888
2
AIR 1970 SC 1061
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W.P.(SR).No.280510/2017
1926 and The Government of India Acts of 1915 and 1935 and rejected
the advent of the Advocates Act, 1961, was just the same as it stands
today. This can be seen from what transpired in the Madras High court in
year 1936 but practiced only in the muffasil courts at Madurai, forming
part of the erstwhile Madras Presidency, till 1941. He was then appointed
From 1947 till 1959, he occupied several non judicial posts. Suddenly he
at Madras on 1-7-1960, patently with a view to pave the way for his
eventual elevation to the Bench of the High Court. First his appointment
of the Madras High court. Though the challenge was rejected by the
Bench, one of the Honble Judges constituting the Bench opined that the
Government misused their power and that the apparent suitability of Sri
the future. After the dismissal of the writ petition challenging the
high court, the Government proceeded with its original plan and elevated
him to the High Court. Immediately a quo warranto was filed challenging
his appointment. It was argued in the said writ petition that Article 217
practicing in the High court and that such a view is warranted by the
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W.P.(SR).No.280510/2017
different sets of expressions used in Article 217(2)(b) and Article 233 (2).
retired).
Agarwal.
who was a Public Prosecutor in the District Court was brought to the
Madras High court and appointed first as the Public Prosecutor in 1964,
elevated to the Bench of the Madras High Court, in 1966. The same came
appointments from the Muffasil Bar took place in the Madras High court,
notable among them being that of Justice K.A. Sengottuvelan (from the
from the Salem Bar). Therefore, it is too late in the day for the petitioners
passages both from the decision in O.N. Mohindroo as well as the decision
particular way, the learned Counsel for the petitioners raised three
contentions before us, namely, (1) that the interpretation given in those
binding precedent.
13. At least till about 10 years ago, no member of the Bar would
Bench would have tolerated such an argument to be made across the Bar
such things, since people now believe that the level of maturity of a
contended that the whole theory of precedents proceeds on the basis that
delivered honestly. The passage that is relied upon by the learned Counsel
15. There are two mischiefs in the above argument. The first is that
calling upon the High court to declare as illegal, the decisions of two
16. In fact the main plank of the submission of the learned counsel
for the petitioners is that the Constitution is supreme and that the
But unfortunately for the petitioners it is very same Constitution which has
taught us that the law laid down by the Supreme Court is binding upon
Agarwal and Mahesh Chandra Gupta would not hold water any more. But
expression the service in Article 233 (2) of the constitution and the
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Aggarwal and the decision in Deepak Aggarwal is not to the effect that the
18. The learned counsel for the petitioners also invited our
Ambedkar, Sir John Panrell et al, to buttress his contention as to how law
said them.
completely devoid of merits. The contention that this Court should declare
______________________
V. RAMASUBRAMANIAN, J.
_______________
M. GANGA RAO, J.
21st November, 2017
Js.
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