Awadhesh Tiwari v. State of Bihar — 1998 DIGILAW 666 (PAT)

JUDGMENT S.K. Singh, J. C.W.J.C. No. 3089 of 1991 has been filed under Articles 226 and 227 of the Constitution of India whereas C.W.J.C. Nos. 5325/97, 4994/96 and 3036/91 have been preferred under Article 226 of the Constitution of India. All the writ applications were made analogous and heard together and are for the same relief, as such, with the consent of the parties are being disposed of by this common judgment. The writ petitioners have prayed for issuance of appropriate writ declaring Bihar Deed Writers Licensing Rules, 1996 (hereinafter to-by-referred to as ‘Rules’) as illegal-and ultra vires the Constitution of India and inconsistent with the Registration Act. A further prayer has been made for declaration of all consequential actions under the said Rules as illegal void and unconstitutional. 2. The writ petitioners who are carrying on the profession of a Deed Writer, have challenged the aforementioned Rules on the ground that the Deed Writers who have adopted the said profession for less than ten years, have to obtain licence and to qualify for the same should have a minimum of ten years experience in the said job of Deed Writer. 3. Under Clause 3 of the said Rules, qualification has been laid down for a Deed Writer. Said clause 3 reads as follows: "3. (a) Qualifications. - The following shall be qualifications for a deed writer – (a) he is a citizen of India and has attained at least the age of 18 years. (b) he has passed the matriculation examination or any other equivalent recognised examination. (c) he has passed Deed Writers licensing examination conducted under Rule. Provided that a licence may be granted to any person who has been in the profession of the documents writer for at least ten years prior to the date of the Registration (Bihar Amendment) Act, 1991 came into force, without requiring him to appear in the written test referred to in sub-section (1) if the Registrar of a District or any other officer authorised by him in this behalf is satisfied that he is otherwise fit to take the profession of a document writer. (d) he should be of good moral character. (e) he has the knowledge of regional language of the locality in addition to the knowledge of Hindi or English.” 4. (d) he should be of good moral character. (e) he has the knowledge of regional language of the locality in addition to the knowledge of Hindi or English.” 4. Under Clause (c) of the said qualification it has been stated that a Deed Writer has to pass a Deed Writers Licensing Examination conducted under the Rule. Provided that a licence may be granted to any person in the profession of the documents writer for at least ten years prior to the date of the Registration (Bihar Amendment) Act, 1991 came into force. 5. A submission has been made on behalf of the petitioners that in view of said clause any person who has been engaged in Deed writing after 25.3.91 shall be debarred from practising said profession of deed writing unless he passes the said registration examination. 6. According to learned counsel for the petitioners, by Sections 68A and 68B of the Registration (Bihar Amendment) Ordinance, 1991, right of citizen has been curtailed for choosing the profession of document writer which is violative of Article 14 of the Constitution as the State Shall not deny to any person equality before the law or the equal protection of laws within the territory of India. According to learned counsel if such a Rule is allowed to be continued the deed writers practising the said profession in the State of Bihar shall be discriminated against the deed writers in the other States and the Union Territories of India as nowhere else such a condition for issuing of a licence as a deed writer has been envisaged. 7. A further contention has also been made that the aforesaid Rules are also violative of Article 19(1) (g) of the Constitution which says that all citizens shall have the right to practice any profession or to carryon any profession, trade or business. Under the said Article of the Constitution, the right of a citizen to choose his or her profession, has been saved which has been curtailed by Sections 68-A and 68-B of the Amending Act. 8. Under the said Article of the Constitution, the right of a citizen to choose his or her profession, has been saved which has been curtailed by Sections 68-A and 68-B of the Amending Act. 8. A further contention has been made by learned counsel for the petitioners that earlier also an attempt was made to incorporate the aforesaid provision by amending the Indian Registration (Bihar Amendment) Act, 1964 which has been declared ultra vires by a Division Bench of this Court in the case of *Ramsagar Singh and others vs. State of Bihar reported in (1971 BLJR 226 : 1970 PLJR 568). 9. A Division Bench of this Court while considering the aforesaid case in Ramsagar Singh (supra) had held that under the Central Act, Registering authority cannot say that the documents presented for registration having been scribed by an unlicensed document writer cannot be registered. 10. A further contention has been made that under Section 69(1)(bb) of the Registration Act though Respondent No. 2 Inspector General of Registration, Bihar is empowered to make Rules from time to time consistent with the Act but the present Rules are not consistent with the Act and the same are violative of the orders passed by this Court by which operation of Section 5 of the Act has been stayed. In view of aforesaid submission prayer has been made to declare the said Rules as ultra vires to the Constitution and inconsistent with the Registration Act. 11. A counter affidavit has been filed on behalf of Respondents-1 and 2 in which it has been stated that the deed writers are a class of persons to constitute the instruments in the registry office. They are popularly known as "Katib". Katibs were supposed to be well versed and educated in Farsi and Urdu. The prime quality of Katibs was a good and legible handwriting. The Registration Act dates back to the year 1864. In 1908 a new Registration Act brought into existence by the British Government by replacing the old Acts of 1864 and 1877. The primary job of these deed writers are writing of documents which are placed for registration. In the post independent year persons having inferior qualities started to engage themselves in the job of deed writings. In 1908 a new Registration Act brought into existence by the British Government by replacing the old Acts of 1864 and 1877. The primary job of these deed writers are writing of documents which are placed for registration. In the post independent year persons having inferior qualities started to engage themselves in the job of deed writings. As a lot of problem was being faced by the registry office and also to the parties concerned who were getting their documents executed it was thought that the deed writer should have necessary qualification and skill so that they may discharge their duties to the satisfaction of the authorities and parties concerned; and be also consistent with the public interest and at least they should have a clean legible and good handwriting. State of Bihar by an amendment knows as Registration (Bihar Amendment) Act, 1964, (Bihar Act VI of 1966) Clause (bb) to Sub-clause-1 of Section 69 of the Registration Act was inserted with a purpose to regulate the profession of deed writers and subsequently, rule was framed to facilitate the licences to the deed writers but on the ground that this amendment in the Central Act did not have the concurrence of the President of India as required by Clause (2) Article 254 of the Constitution, this Court declared the aforesaid amendment as ultra vires and illegal. 12. Again in the year 1991 Sections 58-A, 68-B and 69(bb) were inserted by Registration (Bihar Amendment) Ordinance, 1991. The vires of the Ordinance was challenged by filing various writ petitions before this Court. The Ordinance was subsequently replaced by Registration (Bihar Amendment) Act, 1991 enacted by the State Legislature and after obtaining the concurrence of the President of India. In the meantime Deed Writers Licensing Rule, 1996 has been enacted. According to learned counsel for the Respondents as no final order has been still passed in C.W.J.C. No. 3036 of 1991 and other analogous cases and as the interim relief granted in those petitions were limited to those writ petitioners only, the Rules are applicable to the rest of the Deed Writers. 13. According to learned counsel for the Respondents as no final order has been still passed in C.W.J.C. No. 3036 of 1991 and other analogous cases and as the interim relief granted in those petitions were limited to those writ petitioners only, the Rules are applicable to the rest of the Deed Writers. 13. A further contention has been made by the State that as the department of Registration is an important revenue earning department of the State and also of prime public importance as it maintains records of various transactions on which he could rely in the interest of public, it was found necessary to regulate activities of the Deed Writers as on various occasions their mala fide intentions caused loss of revenue and has put public to inconvenience. As in the interest of the public at large the State thought that it was necessary to keep unauthorised persons out of the campus of the registry office. Rule 1996 of Bihar Deed Writers Licensing Rules has been framed. 14. In reply to the contention of the petitioners that the said Rules were violative of the provision of the Act it has been stated that these Rules were neither illegal nor Inconsistent with the Registration Act as by Registration (Bihar Amendment) Ordinance, 1991, Sections 68-A and 68-B have been inserted. By these sections while imposing prohibition on unlicensed persons to act as a Deed Writer, the provision of granting of licence to act as a Deed Writer have also been made compulsory. In view of said provision of the Act, according to learned counsel, Deed Writers Licensing Rule, 1996 has been framed to implement the said provision under Sections 68-A and 68-B. As according to learned counsel, Rules are not inconsistent with the provision of the Act they cannot be said to be ultra vires. 15. A further contention has been made that apprehension of the petitioners regarding ten years of awaiting period from the date of commencement of the amended Act is also misconceived as under Section 68-A of the Act only persons having ten years professional experience on 25.3.91 have been given privilege to get a licence without any examination. 15. A further contention has been made that apprehension of the petitioners regarding ten years of awaiting period from the date of commencement of the amended Act is also misconceived as under Section 68-A of the Act only persons having ten years professional experience on 25.3.91 have been given privilege to get a licence without any examination. Rule 5(2) of the Licensing Rule, 1996, the subject for examination has been defined which clearly indicates that any aspirant for licence is required to have adequate knowledge of stamp and registration fee and law relating to conveyancing arid drafting of documents in Hindi, English or a regional language. Ten years waiting period is not prescribed anywhere. Only persons who had not completed ten years of professional experience on 25.3.91 are required to pass the examination for licence after attaining ten years experience. 16. According to learned counsel for the Respondents it cannot be disputed that basic knowledge of Transfer of Property Act stamp and registration fee, drafting of documents are required to such documents writer. If they do not have the minimum basic knowledge, vendors and vendees may suffer from monetary loss. 17. With regard to submission of the petitioners that said Rules were violative of Article 14 of the Constitution, it has been stated that the said Rules only regularise the procedure as to how a person can become a licensed Deed Writer and it is not for the first time that the State of Bihar was bringing such an amendment or framing such a Rule as many other States like Andhra Pradesh, Pondicherry, Karnataka, Kerala, Punjab, Haryana, West Bengal and Uttar Pradesh have amended the relevant sections of the Act and framed rules to grant licence to the document writers. The intention of the Respondents in framing the Rules is to give a clean and efficient service to the registrant public, such a rule cannot be said to be violative of Article 14 of the Constitution as has been stated by the petitioners. Said Rule according to learned counsel nowhere debars anybody to adopt the profession of the deed writing. The only intention of the Respondent No. 2 is to provide competent, skilled and well-versed document writers to the public so that concerned party may not face hazard when they require their services in the registry office. Said Rule according to learned counsel nowhere debars anybody to adopt the profession of the deed writing. The only intention of the Respondent No. 2 is to provide competent, skilled and well-versed document writers to the public so that concerned party may not face hazard when they require their services in the registry office. Sections 68-A and 68-B only puts a check and limit to influx of unauthorised person in the profession of document writers, so that every person engaging himself in the profession of document writing gets minimum livelihood. 18. It has also been stated that same cannot be said to be violative of Article 19(1)(g) of the Constitution because by the said amendment the right to carryon a profession, trade or business has only been restricted or regulated by the authority of law, nobody has been stopped tram professing such a profession. State has right to formulate any law for the purpose of imposing reasonable restrictions in the light of the public interest. 19. A further contention has been made that under Section 69(1) of the Registration Act, Inspector General of Registration (Respondent No. 2) is empowi3red to make rules consistent with the Act. By the powers conferred under Clause (b) of Section 69 enacted by the (Bihar Amendment) Act, 1991, Respondent No. 2 was fully empowered to frame Rules and as such, Bihar Deed Writers Licensing Rules, 1996 which is compatible with the Act has been framed. For the reasons stated above, it has been prayed that the writ application be dismissed with cost. 20. Learned counsel for the petitioners has relied upon a judgment of this Court in the case of *Syed Mohammad Nasiruddin vs. State of Bihar and others reported in 1970 PLJR 568. A Division Bench of this Court while considering the constitutional validity of Clause (bb) of sub-section (1) of Section 69 of the Indian Registration Act (Central Act XVI of 1908), as inserted by the Indian Registration (Bihar Amendment) Act, 1964 and the Rules framed thereunder (sic). Clause (bb) reads as :- "Providing for the grant of licences to document writers, the revocation of such licences, the terms and conditions subject to which and the authority by whom such licences shall be granted and generally for all purposes connected with the writings of documents to be presented for registration". 21. Clause (bb) reads as :- "Providing for the grant of licences to document writers, the revocation of such licences, the terms and conditions subject to which and the authority by whom such licences shall be granted and generally for all purposes connected with the writings of documents to be presented for registration". 21. The Division Bench after considering the aspect of the matter held that under Central Act, the registering officer cannot say that the document presented for registration having been scribed by an unlicensed document writer cannot be registered. But such a thing has been brought about by necessary implication by the impugned Clause (bb) and in express language by Rule 3 of the Rules. The learned court held that in absence of such a bar which has been indicated to be put by Clause (bb) of Sub-section (1) of Section 59 and has been expressly put by Rule 3 of the Rules, the regulation of the profession of the document writers in pith and substance will remain a control and regulation of the profession and will have nothing to do with the purpose connected with the writing of document to be presented for registration. The clause, as it stands, suffers from insumountable infirmity of repugnancy between the State Law and the Central Law. Hence, the law, as enacted in violation of requirements of Clause (2) of Article 254 of the Constitution, is not valid. 22. The registration of deeds and documents is a subject under entry 5 of list 3 of the 7th Schedule to the Constitution of India. Since the aforesaid subject is in the concurrent list, both the Central Government as well as the State Legislature are competent to make enactment with respect to the said subject. Both the State Legislature and the Central Legislature have the power to deal with that interest. By virtue of the said Entry-5, Article 254 of the Constitution deals with the situation where there is in-consistency between the laws made by the Parliament and the laws made by the Legislature of a State. Under clause (1) of that Article, if any provision of law made by the Legislature of a State is repugnant to any provision of a law made by the Parliament. Under clause (1) of that Article, if any provision of law made by the Legislature of a State is repugnant to any provision of a law made by the Parliament. which the Parliament is competent to enact then subject to the provisions of Clause (2), the law made by the Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail and the law made by the Legislature of the State shall, to the extent of repugnancy, be void. However, under clause (2) of Article 254 of the Constitution where a law made by the Legislature of a State with respect to one of the matters, enumerated in the concurrent list contains any provision repugnant to the provision of an earlier law made by the Parliament or/an existing law with respect to that matter, then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent prevalied in the State. 23. As mentioned hereinabove the amendment in the Central Act by the Bihar Amendment Act, 1964 was introduced without obtaining the assent of the President and there being direct conflict in between the Central Act and the provision sought to be introduced by the State Amendment Act, this court in the case of Syed Md. Nasiruddin vs. The State of Bihar and others (1970 PLJR 568), held that the aforesaid amendment introduced by the State Legislature was violative of Clause (2) of Article 254 of the Constitution and as such void. 24. Under such circumstances this court in the case of Syed Md. Nasiruddin (supra) held the aforesaid inclusion of clause (bb) of sub-section (1) of Section 69 void. The said decision can have no bearing in the instant case inasmuch as it is not the case of the petitioner that the Bihar amendment incorporated by the Bihar Amendment Act of 1991 is violative of sub-clause(2) of Article 254 of the Constitution. Consequently, the Bihar Deed Writers Licensing Rules, 1996 framed under aforesaid provisions incorporated in the Registration Act by the said Bihar Amendment Act, 1991 cannot be said to be ultra vires. 25. So far as the submission of the earned counsel for the petitioners that the aforesaid Rules are violative of Article 19(1)(g) of the Constitution is also not sustainable and fit to be rejected. 25. So far as the submission of the earned counsel for the petitioners that the aforesaid Rules are violative of Article 19(1)(g) of the Constitution is also not sustainable and fit to be rejected. Under Article 19(1)(g) of the Constitution, every citizen has a right to practice any profession or to carryon any occupation, trade or business. However, the Legislature has the authority to put reasonable restriction in aforesaid unfettered right by making a law imposing reasonable restriction under Clause (6) of Article 19. The expression 'reasonable restriction" signifies that the limitation imposed on a person in enjoyment of that right should not be arbitrary or of an excessive nature beyond what is required in the interest of public. The Apex Court in the case of P.P. Enterprises etc. vs. Union of India and others reported in A.I.R. 1982 Supreme Court 1016 held that no cut and dry test can be applied to each individual statute impugned nor an abstract standard or general pattern of reasonableness can be laid down. The Court in each case has to strike a proper balance between freedom guaranteed by Article 19(1)(g) and the social control permitted by Clause (6) of Article 19. 26. The Apex Court in the case of M/s. Laxami Khandsari vs. The State of U.P. reported in 1981 S.C. 873, held that as to what should be the reasonable restriction would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen. It was further observed that it would be difficult to lay down any hard and fast rule of universal application but in imposing such restrictions, the State must adopt an objective standard amounting to a social control by restricting the right of the citizens where the necessities of the situation demand. The restriction must be in public interest and are imposed by striking a just balance between the deprivation of right and the danger or evil sought to be avoided. If the restrictions imposed appear to be consistent with the directive principles of the State policy they would have to be upheld as the same would be in public interest and manifestly reasonable. If the restrictions imposed appear to be consistent with the directive principles of the State policy they would have to be upheld as the same would be in public interest and manifestly reasonable. The court must examine the direct and immediate import of the restrictions on the rights of the citizens and determine if the restrictions are in larger public interest. In such cases a doctrinaire approach should not be made but care should be taken to see that the real purpose which is sought to be achieved by restricting the right of the citizen is sub-served. 27. It would not be disputed that the basic knowledge of Transfer of Property Act, stamp and registration fee, drafting of documents etc. are the essential requirements for such deed writers. If they do not have the minimum basic knowledge, vendors and vendees may suffer on account of their fault. The idea behind framing of the said Rule is to provide competent, skilled, and well-versed document writers to the public so that the concerned party may not face any problem. The said provisions are only intended to put a check and limit on influx of unauthorised persons in the said profession of document writers. Even in the past the prime quality of a Katib was a good and legible handwriting. The State having apprised about various problems arising out of influx of non-skilled and inferior qualities of deed writers, the State Government thought it prudent in the larger interest of the public that the deed writers have necessary qualification and skill so that they may be able to discharge their duties properly. In order to avoid the aforesaid problem and in the larger interest of the public, the Legislature introduced aforesaid Bihar Amendment Act, 1991 by incorporating Sections 68A and 68B in the parent Registration Act and also framed Rules for the purpose of carrying the object of the Act. 28. Accordingly, the restrictions imposed by framing of the said Rules, 1996, in my view, cannot be said to be violative of Article 19(1)(g) of the Constitution. The restrictions are reasonable and well within the competence of the State Legislature. 28. Accordingly, the restrictions imposed by framing of the said Rules, 1996, in my view, cannot be said to be violative of Article 19(1)(g) of the Constitution. The restrictions are reasonable and well within the competence of the State Legislature. Moreover, under Sub-clause (c) of Rule 3 of the said Rules, it has been provided that the necessity for passing the Deed Writers Licensing Examination will not be necessary to any person, who has been in profession of the Documents Writers for at least 10 years prior to the date of Registration (Bihar Amendment) Act, 1991 came into force. In other words, those Deed Writers, who had been in such profession and had completed 10 years of professional experience as on 25.3.1991 when the said Amendment Act, 1991 came into force are not required to pass he examination for grant of licence. 29. Thus, in view of the said provisions the impugned legislation cannot be said to be unreasonable, arbitrary and violative of Article 14 of the Constitution of India. 30. In the counter-affidavit filed on behalf of the Respondent-State it has been stated that similar provisions have already been made by other States like, Andhra Pradesh, Kerala, Punjab & Haryana, West Bengal, Karnataka, Pondicheri and U.P. 31. For the reasons stated hereinabove, the impugned Bihar Deed Writers Licensing Rules, 1996 cannot be said to be illegal and ultra vires to the Constitution. Consequently, the writ applications fail and they are dismissed. B.M. Lal, C.J.-I agree.