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Bharat Naik Vs. Assistant Registrar, Co-operative Societies and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 290 and 427 of 1956
Judge
Reported inAIR1958Ori217
ActsConstitution of India - Article 14 and 19(1); Orissa Co-operative Societies Act, 1952 - Sections 73 and 133
AppellantBharat Naik
RespondentAssistant Registrar, Co-operative Societies and anr.
Appellant AdvocateR.N. Misra, Adv.
Respondent AdvocateAdv. General
DispositionPetitions dismissed
Cases Referred(E) and Muthiah v. Commr. of Income
Excerpt:
.....new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - though the drafting is not very happy especially after the incorporation of the amendment, on a fair construction of section 133 it appears that that section only says that legal practitioners shall not be entitled to represent parties before (1) any person exercising the powers of the registrar other than the registrar himself; whereas a superior tribunal would be in a better position to appreciate the intricate questions of law that may be argued before it by that practitioner. 11. this case is clearly distinguishable from those classes of cases relating to two laws dealing with the same subject matter, which exist side by side and..........-- hereinafter referred to as the act) has been challenged. that section reads as follows :'133: legal practitioners shall not be entitled to represent parties in proceedings under the act or the rules before any person other than the registrar exercising the powers of registrar, or any person subordinate to him or acting on his authority, an arbitrator or body of arbitrators, or a liquidator'. in o. j. c. no. 290 of 1956 a dispute under the said act was pending before the assistant registrar of co-operative societies, cuttack circle, having, been transferred to his file by the registrar. the applicant wanted to be represented in the proceeding through an advocate, but the assistant registrar refused permission relying on the aforesaid section 133. in o. j. c. no. 427 of 1956 also a.....
Judgment:

R. L. Narasimham, C.J.

1. These two O.J. Cs. were heard analogously and will be disposed of in one judgment as both of them involve a common constitutional question.

2. By these two applications the constitutional validity of Section 133 of the Orissa Co-operative Societies Act 1951 (Orissa Act XI of 1952 -- hereinafter referred to as the Act) has been challenged. That Section reads as follows :

'133: Legal practitioners shall not be entitled to represent parties in proceedings under the Act or the rules before any person other than the Registrar exercising the powers of Registrar, or any person subordinate to him or acting on his authority, an arbitrator or body of arbitrators, or a liquidator'.

In O. J. C. No. 290 of 1956 a dispute under the said Act was pending before the Assistant Registrar of Co-operative Societies, Cuttack Circle, having, been transferred to his file by the Registrar. The applicant wanted to be represented in the proceeding through an Advocate, but the Assistant Registrar refused permission relying on the aforesaid Section 133. In O. J. C. No. 427 of 1956 also a similar dispute was pending before the Liquidator, Orissa Cooperative Cloth and Yarn Syndicate-cum-Assistant Registrar of Co-operative Societies and the said Liquidator refused to permit the petitioner to be represented in that proceeding through a legal practitioner.

3. The Act came into force on 1-7-1955. It is a consolidating Act repealing (i) the Bihar and Orissa Co-operative Societies Act 1935, (ii) the Madras Co-operative Societies Act 1932 and (iii) the Orissa Co-operative Land Mortgage Bank Act 1938, and unifying in one Act the entire law relating to Co-operative Societies in the whole of Orissa. Without going into unnecessary details about the provisions of the Act it is sufficient to say that the most important functionary under the Act is the Registrar of Co-operative Societies, appointed by the State Government, in whom is vested the entire supervision and control of the co-operative movement in the State. Section 8 of the Act authorises the Government to appoint other persons to assist the Registrar and confer on such persons all or any of the powers entrusted to the Registrar by or under the Act.

In the remaining Sections of the Act a sharps distinction is made between the Registrar on the-one hand and a person exercising the powers of the Registrar on the other. Chapter IX deals with disputes regarding the business of a co-operative society and Section 73 confers on the Registrar the power to decide such a dispute either himself or transfer it for disposal (1) to any person authorized by the State Government to exercise the powers of the Registrar or (2) to an Arbitrator appointed by the State Government. Sub-section (3) of Section 73 confers consequential powers on the Registrar to withdraw a reference transferred to the aforesaid officers and either hear it himself or transfer it to some other officer. Chapter X deals with the winding up and dissolution of co-operative societies and the appointment of liquidators for that purpose.

Chapter XII says that the Registrar and other persons v exercising his powers including liquidators, shall have powers under the Civil Procedure Code for the purpose of enforcing the attendance of witnesses and to compel the production of documents, etc. They also have the power to attach properties (section 113(2)), issue injunctions (Section 104), exercise the powers of a civil Court for the executionof their orders (Sections 106, 107, 108, 109, 110 and 112), etc. Section 128 confers powers on the Registrar to hear appeals against the decisions of any of his subordinate officers exercising the powers of the Registrar, or of arbitrators or liquidators appointed under the Act.

He has also powers of review and revision under Sections 130 and 131. In addition, the State Government has been conferred powers of revision under Section 132. Section 134 bars the jurisdiction of the Civil Court in respect of matters dealt with under the provisions of the Act. The Collector and the Board of Revenue have been conferred appellate powers on some specified matters by Sub-section(2) of Section 128.

4. The main contention of Mr. R. N. Misra, on behalf of the petitioners, is that the scheme of the Act is to provide a complete machinery for the purpose of deciding disputes under the Act and to oust the jurisdiction of the Civil Court to decide such disputes. Such disputes relate to moveable and immovable properties and involve difficult questions of title and also intricate questions of Civil Law. Hence, the assistance of a legal practitioner is absolutely necessary for the purpose of proper adjudication of the dispute. Section 133, however, deprives the parties of the right to be represented by a legal practitioner in any proceeding under the Act before any authority except the Registrar. At the time of the filing of these applications the constitutionality of this section was challenged on three grounds:

(i) It imposes an unreasonable restriction on the right of a legal practitioner to carry on his profession guaranteed under Article 19(1)(g) of the Constitution.

(ii) It imposes an unreasonable restriction on the right of a litigant to engage a legal practitioner.

(iii) It offends Article 14 of the Constitution by permitting discrimination between different litigants.

5. The first two contentions were rightly given up by Mr. Misra at the time of hearing in view of the previous Bench decisions of this Court. Thus, in Nabin Chandra Gantayet v. State of Orissa, 23 Cut LT 67: (AIR 1957 Orissa 56) (A) where the constitutional validity of a similar provision in Rule 22of the Orissa Tenants Relief Rules was impugned, this Court held that where civil rights are in dispute there is no fundamental right for either party to appear through a legal practitioner and that consequently if a special statute takes away the right ofa party to appear before a Tribunal constituted under that statute, such provision cannot be held to be unconstitutional. Again in another Bench decision of this Court reported in Digambar Aruk v. Nanda Aruk, AIR 1957 Orissa 281 (B) it was held that the right of a legal practitioner to practise before a Court or tribunal is not an absolute right, but it is a right subject to the provision of the law for the time being in force, and if that law prohibits him from practising before a class of tribunal or Court such prohibition would not amount to an unreasonable restriction on the right of that practitioner to carry on his profession, guaranteed under Article 19(1)(g) of the Constitution.

6. The only question therefore that remains to be considered is whether Section 133 read with Section 73 of the Act is violative of Article 14 of the Constitution.

7. Before discussing this question, it will be useful to consider the history of the Legislation dealing with this section. In the Orissa Co-operative Societies Bill 1951, the clause corresponding to Section 133 of the Act was as follows :

'133. Legal practitioners shall not be entitled to represent parties in proceedings under this Act or the rules, before the State Government, the Registrar, any person exercising the powers of Registrar, or any person subordinate to him or acting on his authority, an arbitrator or body of arbitrators, or a liquidator, the Collector, or the Board of Revenue.'

When the Bill was moved in the Assembly on 3-10-1951, Mr. G. Narayanamurthy who moved for referring it to a Select Committee (page 43 of the Orissa Legislative Assembly Proceedings of that date), urged that though there may not be any necessity for a legal practitioner to appear before the Registrar or some of the officers there may be such necessity for him to appear before higher authorities. Apparently his suggestion was that there should be no bar against the appearance of legal practitioners either before the State Government, the Collector or the Board of Revenue but that he had no objection to the Bar against their appearance before the Registrar and officers subordinate to him exercising the powers of the Registrar, or before an arbitrator or liquidator under the Act.

Though the Bill was not referred to a Select Committee after some discussion between the Government Member in charge of the Bill (Sri Kapileswar Prasad Nanda) and Mr. Narayanamurthy on the next day, Government moved the following amendment to Clause 133 (page 33 of the Orissa Legislative Assembly Proceedings dated 5-10-1951), viz., that the words 'State Government, the Registrar, the Collector or the Board of Revenue' occurring in that clause be omitted, and the words 'other than the Registrar'' should be inserted after the word 'person' and before the word 'exercising'. This amendment was adopted. Thus, it is clear that though in the original Bill the intention was to totally deprive the legal practitioners of their right to appear for any party in a proceeding under the Act or under the rules, before any authority exercising functions under the Act, including the State Government, the Collector and the Board of Revenue, subsequently Government themselves limited the scope of Section 133 to subordinate authorities only.

The right of a legal practitioner to appear before the Government or the Collector or the Board of Revenue in any proceeding under the Act was left untouched. Similarly, his right to appear in any proceeding before the Registrar also was saved. This is the significance of the words 'other than the Registrar' occurring in that Section. Though the drafting is not very happy especially after the incorporation of the amendment, on a fair construction of Section 133 it appears that that Section only says that legal practitioners shall not be entitled to represent parties before (1) any person exercising the powers of the Registrar other than the Registrar himself; (2) any person subordinate to the Registrar or acting on his authority; (3) an arbitrator or body of arbitrators; and (4) a liquidator. These officers are all inferior to- the Registrar in rank and he has the power to transfer any case to their file and also to recall any case to his own.

He has also powers of appeal against their decisions. Mr. Misra contended that if Section 133 of the Act be construed along with the powers of transfer conferred on the Registrar by Section 73 of the Act, gross discrimination may be made between different litigants who are otherwise placed in identical circumstances. Thus, if the Registrar so chooses the reference of one litigant may be transferred to, say, an Assistant Registrar thereby depriving him of his right to be represented by a legal practitioner, whereas the reference of another litigant may be retained in his own file so as to afford him an opportunity of being represented by a legal practitioner in that proceeding. Thus, according to Mr. Misra, Section 73 read with Section 133, confers an unfettered discretion on the Registrar to discriminate arbitrarily between two different litigants who might otherwise be placed in identical circumstances and is, therefore, violative of Article 14 of the Constitution.

8. This argument is no longer available in view of the recent pronouncement of the Supreme Court in Panna Lall Binj Raj v. Union of India, (S) AIR 1957 SC 397 (C). There the unrestricted power of transfer of income-tax cases conferred by Section 5(7A) of the Income-tax Act, on the Commissioner of Income-tax was challenged, as contravening Article 14. Their Lordships of the Supreme Court repelled such an argument observing that the power of transfer though conferred for administrative convenience is absolutely necessary and that it has been conferred not on minor officials of the Department but on top-ranking authorities and there is a presumption that public officials will discharge their duties honestly and in accordance with law. Even if there was a possibility of abuse of the discretionary power of transfer vested in high officials, the law itself cannot be struck down as unconstitutional but only the order of transfer if it is found to have been made in abuse of that power.

Their Lordships of the Supreme Court further observed that there was a broad distinction between discretion which had to be exercised with regard to a fundamental right guaranteed by the Constitution and some other right which is given by the statute. Where discretion is given in a statute so as to affect the fundamental right of a citizen, the discretion must be controlled by clear rules so as to come within the category of 'reasonable restrictions'.

On the other hand, discretion in respect of other matters though left unfettered in the statute, cannot be held to offend Article 14 of the Constitution. Transfer of a case from one authority to another may cause some inconvenience and may, as in the present case, deprive a party of the right of being represented by a lawyer, but as there is no fundamental right for a litigant to be represented by a legal practitioner in Civil litigation, or for a legal practitioner to appear before any Court or tribunal, the mere conferment of unfettered discretion in such a high authority as the Registrar of Co-operative Societies will not offend Article 14.

9. Moreover, it seems a reasonable classification to divide into two groups the authorities who may exercise powers under the Act, the higher group consisting of the Registrar, the State Government, the Collector and the Board of Revenue, and the lower group consisting of other officers exercising the powers of Registrar, liquidator, arbitrator or body of arbitrators, etc. Before the former authorities there is no deprivation of the right of a partyto be represented by a legal practitioner. It is only before the latter authorities that a party is deprived of the right of appearing through a legal practitioner.

If the Legislature thought that before the lower authorities the main questions to be decided may not generally involve difficult questions of law, but only ascertainment of facts and that for that purpose there would be no need for any legal practitioner to assist the party, it will be difficult to hold that the distinction made between these groups of authorities is unreasonable. Moreover, every order passed by any of the lower authorities is subject to appeal to the Registrar before whom a legal practitioner may appear as of right. The absence of any rule for the guidance of the Registrar while making an order of transfer under Section 73 of the Act will not affect the constitutionality of that provision. It is expected that while making orders of transfer the Registrar would first of all consider the questions involved in the case the competence of the transferee officer to decide those questions and then transfer only those cases where, in his opinion, the aid of a legal practitioner will not be required, before those lower authorities.

Even if there is a possibility of abuse of the power of transfer, it will not be proper to hold that the provision of the statute is unconstitutional though, in some circumstances, his order of transfer may be open to challenge.

10. It is not unusual for the Legislature, while creating special tribunals, to say that if a case is heard by an inferior tribunal a legal practitioner is not entitled to appear before it, whereas if the same case is heard by a superior tribunal such practitioner may appear as of right. This distinction is based partly on the fact that the inferior tribunal may get confused and may not be able to appreciate the various points at issue, placed before it by the legal practitioner; whereas a superior tribunal would be in a better position to appreciate the intricate questions of law that may be argued before it by that practitioner.

This distinction is partly in the interests of the legal practitioners themselves, because it may be derogatory to the dignity of their profession that their argument should be wasted before tribunals who are not trained to appreciate the same. Thus, certain classes of offences and certain types of civil litigation are made cognizable by the Adalti Punchayets under the provisions of the Orissa Grama Punchayets Act 1948. Section 94 of that Act prohibits the appearance of legal practitioners before those punchayets.

Yet if those cases or suits are heard by the Magistrate or Munsif concerned, a legal practitioner may appear as of right. In the same manner a similar distinction is made in the Co-operative Societies Act between higher authorities and lower authorities. I think this distinction is based on reasonable classification having in mind the object intended to be achieved.

11. This case is clearly distinguishable from those classes of cases relating to two laws dealing with the same subject matter, which exist side by side and which are applicable to persons placed in - identical circumstances and where the executive is given unfettered discretion to apply one law to one person and the other law to another person; See Surajmall Mohta and Co. v. Visvanatha Sastri, (1955) 1 SCR 448: (AIR 1954 SC 545) (D); Meenakshi Mills Ltd. v. Visvanatha Sastri, (1955) 1 SCR 787: ((S) AIR 1955 SC 13) (E) and Muthiah v. Commr. of Income-tax, (1955) 2 SCR 1247: ((S) AIR 1956 SC 269) (F). In the instant case, there is only one law and what is objected to is the conferment of discretion on a particular officer, namely the Registrar of Co-operative Societies, to discriminate between litigants in exercising his powers of transfer.

12. I should however clarify one point regarding which some confusion appears to exist in the minds of officers exercising powers under the Act. Section 133 of the Act only says that legal practitioners shall not be entitled to represent parties before specified authorities, that is to say, they cannot claim any right to appear before those authorities.

But the section does not prohibit the authority concerned from permitting a legal practitioner to appear before him in a particular case if he considers that any intricate or important question of law arises therein for the decision of which legal assistance will be helpful. It must be left to the discretion of the authority concerned to permit or refuse to permit a legal practitioner to appear before him in a particular case bearing in mind the peculiar circumstances of that case. There is no absolute bar against the appearance of legal practitioners in such proceedings under any circumstances.

13. The petitions are rejected, but there will be no order for costs.

S. Barman, J.

14. I agree.


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