Basudeb Dutta v. State of West Bengal — 1981 DIGILAW 203 (CAL)

ORDER The subject matter of this Rule is a purported amendment made to paragraph 5 of Schedule A of the West Bengal Estates Acquisition Rules framed under S. 59 of the West Bengal Estates Acquisition Act which was published in the Calcutta Gazette (Extra-ordinary) on 11.4.80 under No. 780 L Ref. /6M-146/79. 2. The short fact of the case is that the petitioner Nos. 1 to 15 who are the advocates under the Advocates Act and practising in the Court of District Judge, Bankura comprising in civil, criminal and revenue jurisdictions and petitioners Nos. 16 and 17 who are carrying on their profession as revenue agents in the Collectorate of Bankura have come up with this writ petition challenging the amendment of paragraph 5 of Schedule A of the Rules laying down the manner of payment of compensation to the intermediary whose interest has vested in the State by virtue of the enforcement of the provision of West Bengal Estates Acquisition Act, 1953 mainly on the ground that the purported amendment excludes totally or in other words debus totally advocates and revenue agents from withdrawing compensation money and also annuity money awarded in respect of the intermediary interest vested in the State by filing vokalatnama on behalf of their clients, i.e. the intermediaries who engaged them for withdrawing such compensation and/or annuity money from the office of the compensation officer. It has been stated that prior to the enforcement of the amendment of paragraph 5 of Schedule A there was clear provision for appointment of recognised agent by executing vokalatnama in favour of an advocate or revenue agent as provided under the Code of Civil Procedure. By the impugned amendment the provision as regards the appointment of a recognised agent under a vokalatnama executed in favour of a pleader or revenue agent was totally omitted. Before this amendment of the rule was finally published a draft publication of the amendment was made and this draft rule which was published in the Calcutta Gazette on 9.10.79 under. Notification No. 3058 L Ref, has been annexed as annexure A to the petition. It has been stated in the said notification that the draft will be taken into consideration on or after the 15th November, 1979 and any objection or suggestion with respect thereto which may be received by the undersigned before that date will be considered. Notification No. 3058 L Ref, has been annexed as annexure A to the petition. It has been stated in the said notification that the draft will be taken into consideration on or after the 15th November, 1979 and any objection or suggestion with respect thereto which may be received by the undersigned before that date will be considered. This notification was issued under the signature of D, Bandopadhya, Secretary to the Government of West Bengal, immediately after the draft publication was made objection~ were filed by the petitioners on 3.11.79 Objecting to the proposed draft on the grounds, inter alia, that the sole object of the purported draft amendment is to debar legal practitioners or advocates from acting in the matter of withdrawal of compensation as enjoined under rule 19(1)of the West Bengal Estates Acquisition Rules which provided the manner of payment of compensation in accordance with the provisions of Schedule ‘A’ and in paragraph 5 of that schedule clear provisions were made for engagement of advocates and revenue agents by vokalatnama for withdrawal of the compensation or annuity money on behalf of the intermediaries. It has also been stated in the said objection that the purported amendment will not provide any guarantee to the Intermediary entitled to the manner of payment of compensation under S. 23 of the West Bengal Estates Acquisition Act. 1953 read with Rule 19(1) of the West Bengal Estates Acquisition Rules and it does not provide for adequate safeguards against the misappropriation of the compensation money that may be withdrawn by the authorised agent as in case of lawyers there are certain norms which a lawyer has to conform in accordance with the provisions of the Advocates Act, 1961 which are conspicuous by their absence in the case of authorised agents. Another objection was token that the purported draft amendment which purports to do away with the valuable right conferred by the statute is bad as they are contrary to the provisions of the Act of the Parliament and as such the purported amendment is unenforceable in law and void. On these allegations this Writ application was moved and a Rule was issued. On these allegations this Writ application was moved and a Rule was issued. The prayer for interim order was directed to be considered after notice to the Advocate-General, West Bengal On 15th July, 1980 an interim order was made to this extent that the amendment will not be applicable to the petitioners but any amount that will be with drawn by the petitioners such amount without any declaration of charges or expenses shall be kept deposited in suspense account in a Scheduled Bank until further orders. Though at the time of hearing of the prayer for interim order the learned Additional Advocate General with his junior appeared for the State of West Bengal yet no memorandum of appearance was filed till 15th January, 1981 when memorandum of appearance was filed on behalf of the State of West Bengal. An affidavit-in-opposition sworn by one Shri Ranjit Guha, Assistant Secretary to the Government of West Bengal, Land and Land Revenue Department, on behalf of the respondent No.1 as well as on behalf of respondents Nos. 2 to 8 was filed on 18th December, 1980 when admittedly no power was filed on behalf of the State respondents. subsequently memorandum of appearance on behalf of the State respondents was filed. An affidavit-in reply has also been filed on behalf of the petitioners to the same. 3. At the time of hearing of the Rule Mr. Dutta learned Advocate for the petitioner, raised a preliminary objection about the consideration of the affidavit-in opposition filed on behalf or the State respondents on the grounds that as there was no appearance entered on behalf of the State the affidavit which was filed could not be taken into consideration in view of the provisions or Order 27 rule 8 of the Code of Civil Procedure which requires that before a defence is entered into on behalf of the State the Government pleader or someone on behalf of the State must file his memo of appearance otherwise the case will proceed as in a suit between private parties. It has therefore been submitted by Mr. Dutta that this affidavit which was filed before any memo of appearance was filed on behalf of the State should not be taken into consideration. Mr. It has therefore been submitted by Mr. Dutta that this affidavit which was filed before any memo of appearance was filed on behalf of the State should not be taken into consideration. Mr. Dutta has also raised another objection that the officer who swore this affidavit was not competent to swear the same inasmuch as it was not within his knowledge whether objections to the draft amendment Rule were considered by the authorities concerned, i,e., respondent No.1, the Secretary, Land and Land Revenue Department or not and this affidavit therefore should not be looked into on that ground also. Mr. Dutta has also placed before this Court the relevant provisions of S. 23 of West Bengal Estates Acquisition Act which provides that the compensation officer after the date of final publication of the compensation roll shall in the prescribed manner proceed to make payment of compensation to the intermediary entitled to the same in accordance with the terms of the compensation assessment roll with interest. The manner has been prescribed by rule 19 of the West Bengal Estates Acquisition Rules, 1954. Rule 19(1) provides that the compensation shall be paid under S. 23 in accordance with the provisions of schedule A appended to these rules, Para 5 of schedule A lays down the manner in which the compensation is to be paid. Mr. Dutta has argued that para 5 as it was prior to this amendment clearly provided for appointment of a pleader or a revenue agent under a vokalatnama by an intermediary for withdrawal of the compensation money and/or annuity. This right was taken away by the purported amendment of the rules inasmuch as it omits the words “relating to the engagement of a lawyer or a revenue agent by a vokalotnama for the purpose of withdrawal of compensation or annuity money from the compensation office”. Mr. Dutta has also urged with great vehemence, firstly, that there was no consideration of the objection filed by the petitioners as mentioned in annexure B to the petition nor there was any opportunity of hearing given to the petitioners in support of their objection against the proposed draft amendment of the rules. i.e., para 5 of the schedule A of the said rules. Mr. i.e., para 5 of the schedule A of the said rules. Mr. Dutta has further submitted that under S.24 of the Bengal General Clauses Act the draft of the amended Rules is required to be published before it is made final. In this case it has been submitted that the amended rules that were published no draft of the same was published and as such there being a non-compliance with the provisions of S. 24 of the Bengal General Clauses Act the final publication of the Rules is invalid and ineffective. Mr. Dutta has also submitted that the right to carryon any trade or profession is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India and under sub Article 6 of Article 19 only reasonable restrictions can be imposed in the interest of the general public. The amended rules which totally debar the engagement of lawyers by vokalatnama for the purpose of appearing before the compensation officer for withdrawal of compensation and/or annuity awarded in favour of the intermediary is a restriction not at all reasonable may not for the interest of general public and as such it his been submitted that it is a fraud on the statute and it is a nullity creating unreasonable restriction on the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. Mr. Dutta has also submitted that assuming that it is not a fundamental right still then it is a statutory right flowing from the Advocates Act. 1961. This Advocates Act whereby the rights of the Advocates have been made in accordance with the entry made in list I of the VIIth Schedule The proposed amendment made by the State Government being contrary to or in other words opposed to the express rights conferred upon the advocates by Ss. 29 and 30 of the Advocates Act is invalid and bad because it is not within the competence of the State Government to make such a rule. Some decisions have been cited at the Bar on this point. Mr. Dutta has also submitted on merit that the alleged ground for amendment is imaginary and as vague as possible. In this connection Mr. Dutta has referred to the affidavit-in-reply of several advocates stating that the allegations of misappropriation and/or non-payment of compensation money after withdrawal of the same to the intermediaries are not substantiated. Mr. Dutta has also submitted on merit that the alleged ground for amendment is imaginary and as vague as possible. In this connection Mr. Dutta has referred to the affidavit-in-reply of several advocates stating that the allegations of misappropriation and/or non-payment of compensation money after withdrawal of the same to the intermediaries are not substantiated. It has also been submitted by Mr. Dutta that if there is any such case of non-payment of money by any advocate after withdrawal of the same there is enough protection for the client firstly the matter may be brought to the notice of the Bu Council which can take suitable steps against the lawyer besides other actions which can be taken for recovery of the sum. Moreover, the allegations that sometimes vocalatnamas are not genuinely executed by the clients. Mr. Dutta submits, is not such an objection that it cannot be tested or verified. It can easily be referred to the Bar Association where the advocate is a member and the same can be duly verified. Mr. Dutta has also submitted that in case of withdrawal of money through an authorised agent there is less security for the intermediary inasmuch as there is no norm which the authorised agent has to comply with after withdrawing the money and for non-compliance of which any steps can be taken for that except bringing civil action against him. It has therefore been submitted that the proposed amendment which totally takes away the right of an advocate and/or revenue agent from being engaged for the purpose of withdrawal of compensation money is contrary to the rights conferred on an advocate under the Advocates Act. It has also been submitted that the proposed amendment purports to create a discrimination between an authorised agent and a recognised agent by totally denying the recognised agent the right to withdraw compensation money on behalf of intermediaries. 4. The learned Additional Advocate General appearing on behalf of the State has submitted referring to the affidavit-in-opposition that the draft of the proposed amendment rules was published in the Gazette in accordance with provisions of S. 24 of the Bengal General Clauses Act, 1899. It has also been submitted by the learned Additional Advocate General that this draft publication has been mentioned in Annexure ‘A’ to the petition. It has also been submitted by the learned Additional Advocate General that this draft publication has been mentioned in Annexure ‘A’ to the petition. It has also been submitted that after the draft publication objections were filed against the same by the petitioners and the same had been considered and after considering the same the amended rules were published in the official gazette as mentioned in annexure C’ to the petition. It has also been submitted that it will be evident from the finally published amended rules that the amended rules differ from the draft rules that were published and according to the learned Addl Advocate General this clearly goes to show that the objections to the draft rules were considered by the Government as required under S. 24 of the Bengal General Clauses Act. It has been further submitted that after publication of the draft rules it is not necessary again to publish the draft of the final rules and the publication of the amended rules in the Gazette makes the amended rules conclusive and final in accordance with the provision of S. 24(5). 5. It has been next submitted by Mr. Addl. Advocate General that the right of an advocate to prectise before any officer or authority is not a fundamental right as provided in Article 19(1)(g) of the Constitution and as such the amended rule cannot be attacked on the ground that it purports to create unreasonable restriction on the right of an advocate to practise' his profession. The next dimension of the learned Addl. Advocate General's argument is that even assuming for argument's sake that it is a fundamental right still then as in a large number of cases it was seen that compensation money and annuity money withdrawn by lawyers and revenue agents were not received by the intermediaries on whose behalf the same were withdrawn and also in many cases even powers were filed not duly signed by the intermediaries concerned. Therefore to ensure and protect the interest of the intermediaries to have their compensation money the revenue agents as well as the lawyers have been debarred by the amended rules from withdrawing compensation money by fling power. There is no bar for the lawyers and revenue agents to he engaged by registered power of attorney as authorised agent for purpose of withdrawal of compensation money. According to the learned Addl. There is no bar for the lawyers and revenue agents to he engaged by registered power of attorney as authorised agent for purpose of withdrawal of compensation money. According to the learned Addl. Advocate General this bar is a reasonable restriction imposed in public interest and it falls within clause (6) of Article 19(1)(g) of the Constitution. It is a reasonable restriction and not unreasonable one. It has also been submitted by Mr Gupta, Addl Advocate General, that the right of an advocate to practise is right granted by Ss. 29 and 30 of the Advocates Act, 1961 and clause (iii) of S. 30 provides that the advocate may appear before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. As para 5 of schedule A of the West Bengal Estates Acquisition Rules, 1954 by introducing the amendment debars the advocates and revenue agents to practise, such debarment is not opposed to the statutory right conferred upon the advocate under S. 30 of the Act. The case that was cited on behalf of the petitioners was sought to be distinguished on this basis and it was contended that that case relates to debarment of an advocate from appearing before the tribunal which is not the case here. It was therefore submitted that that case had no application to the facts of the instant case. 6. The most important question that requires consideration for a proper decision of this case is whether the right of an advocate to appear is a right conferred by the statute and if it is a statutory right what is the extent of such right Before entering into this question I think it is proper to deal with the argument advanced on behalf of the petitioners that the right of an advocate to practise his profession is a fundamental right guaranteed under Article 19(1)(g) of the Constitution. On this question it appears that the entries Nos. 77 and 78 of list I of the 7th schedule clearly provide for making of legislation with regard to persons entitled to practise before the Supreme Court and the High Courts and entry No. 26 of the concurrent list. i.e., list 3 of the 7th schedule provide for making legislation with regard to legal medical and other professions. 77 and 78 of list I of the 7th schedule clearly provide for making of legislation with regard to persons entitled to practise before the Supreme Court and the High Courts and entry No. 26 of the concurrent list. i.e., list 3 of the 7th schedule provide for making legislation with regard to legal medical and other professions. The Advocates Act which is a Central Act has been enacted pursuant to the aforesaid entries 77 and 73 of list I and may be entry No. 26 of the concurrent list. Section 29 of the Advocates Act clearly provides that only one class of persons shall be entitled to practise the profession of law viz. advocates and S. 30 which is relevant for our purpose is quoted hereinbelow : Every advocate whose name is entered in the State Roll shall be entitled as of right to practise throughout the territories to which this Act extends (i) in all courts including the Supreme Court, (ii) before any tribunal or person legally authorised to take evidence and (iii) before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise.” 7. It appears from the provisions of these two sections that the advocates have been conferred rights to practise not only in all courts including the Supreme Court but also before any tribunal or person legally authorised to take evidence and also before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice. Therefore the rights of an advocate to practise profession of law clearly flows from the Advocates Act and in my opinion it is a statutory right conferred by the Advocates Act to practise his profession of law before any court or tribunal or other authorities or persons as provided in S. 30 of the Advocates Act. In this connection I am fortified by a decision reported in AIR 1971 Cal 509 (B.B. Dalal v. Registrar, Original Side). Therefore the right to practise law by an advocate is a statutory right. Therefore, the right to practise law by an advocate is a statutory right and not a fundamental right. The next question that requires consideration is whether an advocate is entitled to practise before the Compensation Officer, namely to withdraw compensation money. Therefore the right to practise law by an advocate is a statutory right. Therefore, the right to practise law by an advocate is a statutory right and not a fundamental right. The next question that requires consideration is whether an advocate is entitled to practise before the Compensation Officer, namely to withdraw compensation money. Undoubtedly under the unamended provisions of paragraph 5 of Schedule A which was framed pursuant to Rule 19A providing the manner of payment of compensation clear provision was made for engagement of lawyer and revenue agent by executing vokalatnama as provided under the Code of Civil Procedure for withdrawal of compensation money. The proposed amendment as has been succinctly submitted by the learned Additional Advocate General purports to totally debar on the advocates and revenue agents from being engaged by vokalatnama for withdrawal of compensation or annuity money from the compensation officer. In my opinion, this rule creates a restriction on the right of an advocate which has been conferred under Ss. 29 and 30 of the Advocates Act to practise his profession of law before the Tribunal and also persons legality authorised to take evidence. In this case Ss. 57 and 57A of the West Bengal Estates Acquisition Act clearly provide that a Revenue Officer shall have Powers to summon and enforce attendance of witnesses of any person and to compel production of documents by the same manner as is provided in the case of a Civil Court under the Code of Civil Procedure, 1908. Section 57A also empowers the State Government to invest the authorities mentioned in S. 53 of the Act with all or any of the powers of the Civil Court and the authorities specified in S.53 includes under Clause (e) the Compensation Officers. That being the position under S. 30 Clause (ii) in my opinion, the advocates and revenue agents are competent to appear before the Compensation Officer and curtailment of this right by the proposed amendment is in contravention of provisions of S. 30 of the Advocates Act. Article 245 clearly provides that subject to the provisions of the Constitution Parliament can make laws for the whole or any part of the territory of India and legislature of a State may make law for the whole or any part of the territory of the State. Therefore the Advocates Act being made pursuant to the entries mentioned in entries Nos. Therefore the Advocates Act being made pursuant to the entries mentioned in entries Nos. 77 and 78 of Clause (i) of the 7th schedule and entry 26 of the concurrent list a Rule or Bye-law or Regulation made pursuant to a State Act cannot override or do away with any right conferred by a Central Act and in such cases of conflict the provisions of the Central Act will prevail unless and until there has been a compliance with the provisions of Article 254(2) of the Constitution, namely. the State Act is reserved for consideration of the President and has received his assent and in that case the State Act can only prevail in that State. That is undoubtedly not the case here. It is pertinent to mention in this connection the decision cited at the bar reported in AIR 1977 Punjab and Haryana 221 at page 232 paragraph 18 where it has been observed :– “The right of an Advocate whose name appears on the common roll to practise before any Tribunal or person legally authorised to take evidence, cannot be taken away by a State law. To the extent section 20A of Haryana Ceiling on Land Holdings Act (26 of 1972) bars the appearance of Advocates before any officer or authority it must be held to be repugnant to S. 30 of the Advocates Act therefore invalid “8. This decision was rendered by the Full Bench of Punjab High Court. I may mention in this connection that similar restriction which was made in the Industrial Law came up for consideration in AIR 1977 SC p. 36 but this question was neither specifically raised nor considered and decided in that case. Therefore the decision in the Full Bench case supports the view which I have taken in respect of the proposed amendment totally debarring the advocates from practising their profession of law by being engaged for withdrawal of compensation money and/or annuity money from the compensation office in respect of the intermediary interest vested in the State under the provisions of the West Bengal Estates Acquisition Act, 1953. As regards the submission about the non hearing of the objections and non-publication of the draft amended Rules, it appears that the draft Rules were undoubtedly published in the Gazette wherein objections were invited and objections were undoubtedly tiled by the petitioners. As regards the submission about the non hearing of the objections and non-publication of the draft amended Rules, it appears that the draft Rules were undoubtedly published in the Gazette wherein objections were invited and objections were undoubtedly tiled by the petitioners. Thereafter fin at publication of the amended Rules were made. First objection raised against this is that there was no publication of the draft of the finally published amended Rules. I do not think that after the publication of the proposed draft amended rules any further draft publication of the final rules is necessary or contemplated under S. 24(3) of the Bengal General Clauses Act, 1899. In my opinion, after the draft publication the amended rules having been finally published the same becomes conclusive and final in accordance with the provisions of sub-s (5) of S. 24 of the said Act. The next objection that the objections filed were not considered and no hearing was given and thereby principles of natural justice have been violated, in my opinion, cannot be sustained for the reason that the legislature under Article 245(I) has got the plenary power of legislation subject to the provisions of the Constitution In other words, the legislature so long it does not transgress the limits of powers conferred in the various entries in the 7th Schedule either on the Legislature of a State or on the Legislature of the Union then within their constitutional limitations the Legislature has got the unrestricted power to legislate in the manner it thinks best in its wisdom. In this case undoubtedly S. 59 of the West Bengal Estates Acquisition Act confers power on the State Government to frame Rules to carry out the purposes of the Act. Therefore, the Rules can be framed by the Rule making authority so long it does not transgress the limits prescribed by the parent Act. The purport of making draft publication is, in my opinion, to bring to the notice of interested persons the amendments in the Rules or bye laws who are going to be affected so that they may know and they can make their objections to the same. The purport of making draft publication is, in my opinion, to bring to the notice of interested persons the amendments in the Rules or bye laws who are going to be affected so that they may know and they can make their objections to the same. It is for the Rule making authority to consider the objections But it is not necessary for them, just like a judicial or quasi-judicial body, after considering objections to record reasons why they are not accepting or accepting those objections and for non-recording of reasons it cannot be said that the amended Rules which were published is bad. The principles of audi alteram partem, in my opinion, cannot be invoked in this case for the simple reason that the said principle can be invoked only in a case where any order is made either by a quasi-judicial tribunal or by an executive authority determining the rights of the parties. In the matter of framing of Rules by a competent authority within the limits of the statute, in my opinion, the principles of natural justice cannot be invoked. Therefore, this connection is without any substance and cannot be sustained. 9. In view of the findings arrived at hereinbefore this Rule succeeds and is made absolute. Let a Writ of Mandamus be issued commanding the respondents to forbear from giving effect to the amended Rules mentioned in Annexure ‘C’ to the petition Let a Writ of Certiorari be issued commanding the respondents to quash and/or set aside the impugned amendments as mentioned in Annexure ‘C’ to the petition. There will be no order as to costs. Let operation of the order be stayed for a period of three weeks but this will not, however, prevent the petitioners to withdraw compensation money in accordance with law. Rule made absolute; Amendment quashed.