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Tikamchand Sualalji Agrawal Vs. the Joint Registrar Co-operative Societies, M.P., Bhopal and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 15 of 1969
Judge
Reported inAIR1971MP86; 1971MPLJ110
ActsMadhya Pradesh Co-operative Societies Act, 1960 - Sections 67 and 67(2); Constitution of India - Articles 14 and 254; Advocates Act - Sections 30
AppellantTikamchand Sualalji Agrawal
RespondentThe Joint Registrar Co-operative Societies, M.P., Bhopal and ors.
Appellant AdvocateK.R. Sethi, Adv.
Respondent AdvocateK.K. Dube, Govt. Adv. for Respondents Nos. 1 and 2
DispositionPetition dismissed
Cases ReferredPett v. Greyhound Racing Association Ltd.
Excerpt:
- - for these reasons, we are clearly of the view that there is sufficient guidance in section 67 (2) for the exercise of the discretion and it is not invalid or void......reads as under: 'section 67 (2). no party shall be represented at the hearing of the dispute byany legal practitioner, except with the permission of the registrar or his nominee or board of nominees, as the case may be: provided that where the permission is so granted, the other party to the dispute shall be entitled to be represented by a legal practitioner.' 4. learned counsel for the petitioner first contends that section 67 (2) of the madhya pradesh co-operative societies act, 1960 is repugnant to section 30 of the advocates act, 1961 and has, therefore, become void under article 254 of the constitution. section 30 of the advocates act entitles an advocate to practise as of right in all courts and also before any tribunal or person legally authorised to take evidence, and the right.....
Judgment:

Singh, J.

1. This is a petition under Article 226 of the Constitution for quashing the order passed by the Deputy Registrar, Co-operative Societies, Indore on March 20, 1968 and the order passed in revision by the Joint Registrar, Cooperative Societies, Bhopal on August 1, 1968.

2. The relevant facts are that a dispute against the petitioner was referred by the Kendriya Sahakari Upbhokta Bhandar, Indore for adjudication to the Deputy Registrar. The petitioner made an application on March 20, 1968 praying that permission be granted to him for being represented by an Advocate. He also prayed that he should be allowed to engage an Advocate for inspecting the record. This application was rejected by the Deputy Registrar on March 20, 1968. The petitioner then went up in revision which was dismissed by the Joint Registrar on August 1, 1968. These are the orders which have been challenged by the petitioner in this petition.

3. Section 67(2) of the Madhya Pradesh Co-operative Societies Act, 1960, under which the impugned orders werepassed reads as under:

'Section 67 (2). No party shall be represented at the hearing of the dispute byany legal practitioner, except with the permission of the Registrar or his nominee or board of nominees, as the case may be:

Provided that where the permission is so granted, the other party to the dispute shall be entitled to be represented by a legal practitioner.'

4. Learned counsel for the petitioner first contends that Section 67 (2) of the Madhya Pradesh Co-operative Societies Act, 1960 is repugnant to Section 30 of the Advocates Act, 1961 and has, therefore, become void under Article 254 of the Constitution. Section 30 of the Advocates Act entitles an Advocate to practise as of right in all Courts and also before any tribunal or person legally authorised to take evidence, and the right to practise under this section is not expressly subject to any otherwise provision in any other law as was the case under Section 14 of the Bar Councils Act, 1926. It is pointed out by the learned counsel that the Registrar, his delegates and nominees in deciding a dispute under the provisions of the Co-operative Societies Act have, by virtue of Section 89, legal authority to take evidence and, therefore, they are persons before whom an Advocate has a right to practise without any restriction. The argument is that the restriction contained in Section 67 of the Co-operative Societies Act that a party can only be represented by a legal practitioner when permission to that effect is granted by the Registrar conflicts with the right conferred upon an Advocate under Section 30 of the Advocates Act giving rise to inconsistency or repugnancy between the two provisions.

5. The contention raised by the learned counsel proceeds upon the assumption that Section 30 of the Advocates Act not only entitles an Advocate to practise as of right but also confers a right on a litigant to be represented by an Advocate in all proceedings arising before Courts or tribunals, or persons mentioned in Section 30. Whether this assumption and contention of repugnancy based on it are correct or not would have required some consideration but for the fact that the learned counsel is unable to satisfy us that Section 30 has been brought into force. The Advocates Act received the assent of the President on May 19, 1961. Section 1(3) of this Act provides that it shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint and different dates may be appointed for different provisions of this Act. We have not been shown any notification of the Central Government by which any date has been appointed for coming into force of Section 30 of the Act. Thus, Section 30 is still not inoperation. Repugnancy between a Union Act and a State Act can arise when the Union Act evinces an intention to cover the whole field of the subject dealt with by the State Act. It is possible that the Union Act may cover the whole field giving rise to repugnancy, although statutory rules and orders have yet to be framed for giving effect to the policy of the Act; State of Orissa v. M.A. Tulloch & Co., AIR 1964 SC 1284 at P. 1292. But repugnancy cannot arise until the Union Act is actually brought into force in the State. In Attorney General for Ontario v. Attorney General for the Dominion, 1896 AC 348, a provincial law of Ontario was challenged on the ground of repugnancy to the Temperance Act of Canada, a dominion law, which, though extending to the province, had not been brought into force there. In rejecting the argument of repugnancy, the Privy Council said:--

'Their Lordships can discover no adequate grounds for holding that there exists repugnancy between the two laws in districts of the province of Ontario where the prohibitions of the Canadian Act are not and never be in force.' (pages 369-370)

The aforesaid observations were quoted with approval by Sulaiman, J. in Shyamakant v. Rambhajan Singh, AIR 1939 FC 74 at p. 83, which was in its turn relied upon by Bhagwati, J. in Tika Ramji v. State of U.P., AIR 1956 SC 676 at pp. 700 & 703, and one of the principles that was deduced was that 'repugnancy must exist in fact and not depend merely on a possibility.' The width of this principle is open to doubt in view of certain observations made in Municipal Council, Palai v. T.J. Joseph, AIR 1963 SC 1561 at p. 1566 and AIR 1964 SC 1284 at pp. 1291-1292. The Privy Council case, however, is still an authority for the view that the question of repugnancy cannot arise until the Union law is actually brought into force in the State and indeed it is on this ground that it was distinguished by the Supreme Court in AIR 1963 SC 1561 (supra). We are, therefore. of opinion that the argument that Section 67(2) of the Cooperative Societies Act is repugnant to Section 30 of the Advocates Act, which is still not in force, is not open to the petitioner.

6. The learned counsel then contends that Section 67 (2) of the Co-operative Societies Act is invalid as it confers unfettered discretion on the Registrar or his nominees to grant or refuse permission for representation by a legal practitioner. The argument is that no policy or guidance is stated in Section 67 as to when permission to be represented by a legal practitioner should be granted and when permission should be refused.

7. The right to be represented by a legal practitioner, except when a person is charged of a criminal offence, is not a fundamental right. So far as proceedings in Civil Courts are concerned, right to representation by a legal practitioner is conferred on a party by Order 3 Rule 1 of the Code of Civil Procedure. As regards Tribunals and quasi-judicial authorities, in the absence of any specific statutory provision, a party's right to representation by a counsel is based on the law of agency and principles of natural justice. Subject to exceptions, a person can appoint an agent for any purpose and the agent so appointed may be a lawyer. So a person who can appear in a proceeding by an agent can appoint a lawyer to be his agent. Again when a person's reputation or livelihood or any matter of serious import is involved, natural justice may require that he can be represented, if he so desires, by a lawyer; Pett v. Greyhound Racing Association Ltd., (1968) 2 WLR 1471 at pp. 1475, 1476. But it is also said that the procedure of administrative tribunals being informal, a party can feel at ease and properly present his case even without a lawyer; this is one of the reasons which are given for the growth of the tribunals; (Justice in the Welfare State, Harry Street, page 10 (Hamlyn Lectures, 1968)). Many believe that at least in simple and ordinary matters representation by a lawyer unnecessarily adds to the expense of the parties and has a tendency to complicate and prolong the proceedings. Experience shows that simple disputes can be satisfactorily decided even without the assistance of counsel. With these general observations, let us turn to Section 67 (2) of the Cooperative Societies Act. The policy or object behind this section seems to be hat the disputes submitted to the Registrar or his nominees should be speedily decided and so far as ordinary and simple disputes are concerned in which there is no complication, normally the parties should not be allowed the assistance of legal practitioner to avoid delay and expense; but in complicated cases or where consequences may be serious, or where due to some disability, or for other reason, a party is not able to properly present his case, permission should be granted. This policy or object is no doubt not expressly stated in the section, but that is implicit from the provisions of the Act and the nature of the discretion conferred under the section on the Registrar. It has to be remembered that in deciding disputes under the Act, the Registrar Acts in a quasi-judicial capacity. In exercising his discretion under Section 67 (2), he cannot act arbitrarily but is to be guided by the policy or object of the Act; the discretion conferred is judicial and not administrative. For these reasons, we are clearly of the view that there is sufficient guidance in Section 67 (2) for the exercise of the discretion and it is not invalid or void.

8. In the instant case the Deputy Registrar to whom the power under Section 67 (2) has been delegated was of the opinion that the dispute was a simple one and did not need representation of the petitioner by a legal practitioner. The application of the petitioner was, therefore, rejected. We do not find any error of jurisdiction or any error apparent on the face of record in this order.

9. In the result, the petition fails and is dismissed. Having regard to the circumstances of the case, we make no order as to costs. The amount of security deposit shall be refunded to the petitioner.


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