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1985 DIGILAW 228 (CAL)

Raj Kumar Agarwalla v. UNION OF INDIA

1985-06-07

Padma Khastgir

body1985
JUDGMENT 1. BEING aggrieved of and seriously prejudiced by the various orders passed by Mr. Justice b. C. Basak, the State of Bihar moved an application, before this Court for vacating the orders passed by the said learned Judge in this writ proceeding. 2. THE State of Bihar by notification imposed restriction on the movement of salt and in consequence thereof issued various orders to the effect that no conralignment of salt will be released without the counter-signature of the Special Officer, Rationing Officer or the Sub Divisional Officers. Hence the movement of salt by railways were restricted by the bihar Government. The writ petitioner Raj Kumar Agarwalla in utter violation of such notification despatched salt to West Bengal via railways and without obtaining the necessary counter-signatures from the appropriate officers and or authorities. The Secretary, Govt, of Bihar had drawn the attention of this act of smuggling of salt to the Salt Commissioner. As a result there was direction that railway receipts should be counter signed by file officers concerned before delivery of saw to the traders which was duly communicated to all District Officers and, all Station Masters of the railways. 3. THE Hon'ble Supreme Court in appeal Nos. 653-654 upheld the notification as valid and was in force by virtue of the provisions as contained in the essential Commodities Act, 1955. 4. IN as Much as the writ petitioner could not produce the counter-signature, the railways refused to release the consignment of salt in favour of the writ petitioner. The writ petitioner moved an application before Mr. Justice B. C. BA sk on 9th of December 1980 and the learned Judge issued the Rule and various orders in favour of the writ petitioner. The learned Judge appointed Mr. Mathura Nath Banerjee as Special Officer to take delivery of salt covered by the railway receipts with a directions upon the railway authorities not to charge any demurrage and/or wharfage charges. The State of Bihar engaged Sri narottam Chatterjee Advocate to conduct the case by order dated Law Department, Patna letter No. C/ed-1281 g-1450 G communicated vide letter Wo. 2684 dated 18th of March 1981 from the deputy Secretary, Supply and Commerce department, Patna, Bihar. In his place at present Mr. The State of Bihar engaged Sri narottam Chatterjee Advocate to conduct the case by order dated Law Department, Patna letter No. C/ed-1281 g-1450 G communicated vide letter Wo. 2684 dated 18th of March 1981 from the deputy Secretary, Supply and Commerce department, Patna, Bihar. In his place at present Mr. Ram Chandra Prasad, the learned Advocate had been appointed to conduct and appear in this case on behalf of the State of Bihar vide govt, of Bihar letter (Judicial Department) letter No. CD-24/83/716 J dated 4th of June, 1983. 5. IN an affidavit affirmed by Surendra mohan Singh Joint Secretary, Food supply and Commerce Department, Govt, of Bihar affirmed on 26th of February, 1985 stated on behalf of the State of bihar that neither the office of the Govt, of Bihar, Patna, the Legal Remembrancer Department, nor the Food Commissioner Govt, of Bihar had at any point of time authorised the learned Advocate general Sri Snehangshu Kanta Acharyya or Mr. Binod Giri, a learned Advocate to appear on behalf of the State of Bihar and make contrary and/or contradictory submissions on behalf of the State of bihar which. submissions and/or statements not only went against the interest of the State of Bihar but also amounted to acceptance of the submissions and/or allegations and/or contentions of the writ petitioner Raj Kumar Agarwalla. In view of such submissions made by the learned Advocate General on 7th of January, 1981 to the effect that the state of Bihar had no objection if the goods were released to the peltiti6ner an order was passed by Mr. Justice B. C. Basak directing the Special Officer to release the salt and further restrained the Railway, Authorities from putting any restriction, regarding consignment of salt or production of counter-signature. After passing such order the learned Judge forthwith released the matter from his list. 6. THE State of Bihar contended that the learned Judge had no jurisdiction to entertain and/or admit and/or issue a rule in favour of the writ petitioner and pass such interim orders completely ignoring the ban imposed by the state of Bihar which were derogatory to the interest of the State of Bihar, the State of Bihar further Contended that no part of the cause of action had arisen within the jurisdiction of this court. The Legal Remembrancer of the govt, of Bihar and the Food Commissioner held necessary enquiry in the matter and from inspection and perusal of the records it appeared that neither the office of the Food Commissioner, Govt, of Bihar, Patna, nor the Deputy Commissioner had authorised Mr. Binod Giri and the learned Advocate General Snehangshu Kanta Acharyya to appear in this case of behalf of the State of Bihar and make submissions against the interest of the State of Bihar. Neither the government of Bihar nor any of its officers had ever authorised Sri Snehangshu Kanta. Acharyya to submit to an order that the consignment of salt be released in favour of the writ petitioner without obtaining the counter-Signatures cm the railway receipts. It had been enphatically stated that the Advocate General had not been instructed to be a party to a consent order and make submissions against the interest of the State of bihar. Inspite of such grave allegations having been made in the affidavit of the joint Secretary, Govt, of Bihar, affidavit had been filed by the Clerk of the advocate General, upon which this court could place no reliance. The annexure to the said affidavit did not authorise the Advocate General to appear on behalf of State of Bihar. 7. ENGAGEMENT of a lawyer by the state of Bihar is the exclusive power of the Legal Remembrancer of the Govt. of Bihar according to the rules of the executive business. No. other officer has any power -to engage a lawyer directly. Even if such a lawyer is engaged directly, in case of extreme urgency that must be approved by the Legal Remembrancer, Govt, of Bihar. In the instant case the Govt, of Bihar had not approved or accorded its sanction of engagement of mr. Binod Giri and/or the learned Advocate General on its behalf, nor did the govt, of Bihar authorise him to consent to an order for the release of the consignment of salt. 8. MR. In the instant case the Govt, of Bihar had not approved or accorded its sanction of engagement of mr. Binod Giri and/or the learned Advocate General on its behalf, nor did the govt, of Bihar authorise him to consent to an order for the release of the consignment of salt. 8. MR. Binod Giri did not file any power on or before the day he appeared on behalf of the State of Bihar and the learned Advocate General consented to an order being passed in favour of the writ petitioner in as much as the said original Power was not in the file Only after the matter was part heard before this Court the learned Advocate General prayed for inspection of the file and then only the Power signed by Mr. Giri was found in the file. From the Power itself it would be evident that the same does not bear the Stamp of the Calcutta high Court, nor any number has been given on such Power. Moreover the said power does not indicate that it was given on behalf of the respondent, State of Bihar. Apart from that there are other intrinsic evidence to indicate that the Power could not have been filed at the time when the consent order was passed by the learned Judge. There is reason to believe that Mr. Binod Giri the learned Advocate as also the learned Advocate General had not been authorised and/or engaged by the state of Bihar to appear in the case on its behalf. There was no authority and/or instructions given to the Advocate General to state before the learned Judge on 7th January, 1981 that the State of bihar had no objection if the goods were released to the writ petitioner. The state of Bihar did not authorise Mr. Binod Giri and/or the learned Advocate general to admit the statements and or allegations made by the petitioner. There was no Power of Attorney granted by the State of Bihar in favour of Mr. Binod giri on the day when such order was passed. There was no affidavit denying such serious allegations as made in the affidavit of the Joint Secretary. The affidavit filed on behalf of the Clerk does not justify the appearance on behalf of the State of Bihar as also the submissions made by the learned Advocate General. Binod giri on the day when such order was passed. There was no affidavit denying such serious allegations as made in the affidavit of the Joint Secretary. The affidavit filed on behalf of the Clerk does not justify the appearance on behalf of the State of Bihar as also the submissions made by the learned Advocate General. The violation of the notification issued by the Govt, of Bihar by the writ petitioner had been supported by the learned lawyers. On suppression of material facts that the Govt, of Bihar did not authorise him to make such statements, such statements had been made by the learned Advocate General. There had been mis-representation that he had been duly authorised by the State of bihar Apart from that Mr. Ram Chandra prosad had openly submitted in Court that he had been pressuses and had been abused filthily for moving the application before this Court. Under the circumstances, this Court takes serious view of such reprehensible part played by the Advocate General and condemn, the same in as much as it has not only lowered the. position of the Advocate General but also derogated the reputation of this High Court. This Court, under the circumstances is compelled to refer the matter to the hon'ble Chief Justice of Calcutta High court and the Bar Council of India for necessary enquiry and action. The original file as also the Power signed by mr. Binod Giri be kept in the safe custody of the Appellate Side Registrar, till further order. S. R. [an appeal has been preferred and a stay order has been obtained and reference to the part played by the Advocate General has been directed to be expunged Ed.