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24 Parganas Lawyers' Clerks Association and Ors. Vs. State of West Bengal and Ors. (09.04.1984 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule Nos. 13301(W) of 1982, 6189(W) of 1983 and Civil Order 15096-97(W) of 1982
Judge
Reported inAIR1986Cal205
ActsConstitution of India - Articles 14, 19(1), 43 and 226; ;Registration (West Bengal Amendment) Act, 1981 - Section 5; ;West Bengal Registration (Deed Writers), Rules, 1982 - Rules 4, 6, 6(1), 7, 10, 14, 15, 19, 20, 21 and 123; ;Registration Act, 1908 - Sections 57 and 80G; ;Bengal Registration Rules, 1962 - Rules 120 to 125 and 129; ;Bengal Touts Act, 1942; ;Suceession Act; ;Transfer of Property Act, 1882 - Section 3
Appellant24 Parganas Lawyers' Clerks Association and Ors.
RespondentState of West Bengal and Ors.
Appellant AdvocateB.N. Sen and ;Rabindra Nath Das, Advs.
Respondent AdvocateS.K. Acharya, Adv. General, ;Tapas Roy and ;Asit Goswami, Advs., ;R.N. Mitra and ;Rayit Mitra, Advs. for Added Respondents
DispositionPetitions dismissed
Cases ReferredDevata Prasad Singh v. Hon
Excerpt:
- .....particular section 5 thereof and the rules framed thereunder being the west bengal registration (deed writers) rules, 1982 (hereinafter called the 1982 rules) as ultra vires articles 19(1)(g), 246 and 300-a of the constitution of india. 2. by an order dated 3rd march, 1983 the west bengal deed writers' association and atul krishna majumder for self and as the general secretary of the said association were added as respondents nos. 6 and 7 in this rule. 3. the petitioner no. 1 is an association of licensed clerks of lawyers and advocates practising in various courts in the district of 24 parganas (hereinafter for the sake of brevity called lawyers' clerks). it is the case of the petitioner that the licensed lawyers' clerks are entrusted with the duties of making searches in different.....
Judgment:
ORDER

Chandan Kumar Banerji, J.

1. In this Rule the petitioners have, inter alia, challenged the Registration (West Bengal Amendment) Act, 1981 (West Bengal Act. XLIII of 1981) (hereinafter calledthe 1981 Act) and in particular Section 5 thereof and the Rules framed thereunder being the West Bengal Registration (Deed Writers) Rules, 1982 (hereinafter called the 1982 Rules) as ultra vires Articles 19(1)(g), 246 and 300-A of the Constitution of India.

2. By an Order dated 3rd March, 1983 the West Bengal Deed Writers' Association and Atul Krishna Majumder for self and as the General Secretary of the said Association were added as respondents Nos. 6 and 7 in this Rule.

3. The petitioner No. 1 is an association of licensed Clerks of lawyers and advocates practising in various Courts in the District of 24 Parganas (hereinafter for the sake of brevity called lawyers' clerks). It is the case of the petitioner that the licensed lawyers' clerks are entrusted with the duties of making searches in different Registration and Sub-Registration Offices for drafting deeds or documents of Conveyance of properties. They are entrusted with drafting deed of Conveyance and are engaged for such purpose being less expensive. Notwithstanding licences being granted to the deed writers under Section 80G of the Registration Act, 1908 the licensed lawyers' clerks were all along permitted to act as deed writers. The case of the petitioners is that by the 1981 Act privileges hitherto enjoyed by the licensed lawyers' clerks are sought to be taken away and jeopardised and by the 1982 Rules they are sought to be debarred from obtaining a deed writers' license. The added respondents Nos. 6 and 7, however, deny and dispute that the licensed lawyers' clerks ever drafted any deed or were ever entrusted with such drafting.

4. Mr. B. N. Sen, learned advocate for the petitioners referred to Rule 6 of the 1982 Rules which provides for disqualifications for which a deed writer's licence shall not be granted and one of such disqualifications as contained in Clause (i) of the said Rule is, if he is engaged in any gainful occupation or employment. Rule 4 prohibits a person from engaging himself in the profession of a deed writer if he is not a licensed deed writer. Exemption, however, is given to advocates and pleaders practising in any Court in the State and to Solicitors. It was contended that the expression 'gainful occupation or employment' has neither beendefined in the Registration Act, 1908 (hereinafter called the Central Act) nor in the 1981 Act nor in the 1982 Rules. It was urged that lawyers' clerks were not employed by their masters on any salary and they received some remuneration on the basis of each and individual case of the lawyers with whom they were engaged. They have no fixed income. At best they had a fluctuating income dependent solely on the number of Court cases or proceedings filed by the lawyers by whom they were engaged or pending before the Courts. As such the lawyers' clerks could not be said to be engaged in any gainful occupation or employment and could not be disqualified from drafting deeds of documents or from obtaining deed writers' licence. Mr. Sen referred to Dr. A. R. Biswas' Encyclopaedic Law Dictionary in which the expression 'gainfully occupied person' is defined as meaning a person who is occupied in any trade, business, profession, office, employment or vocation and is wholly or substantially dependent thereon for a livelihood or a person though temporarily employed is normally so engaged and dependent. It was contended that the classification sought to be made in Rule 6(1) of the 1982 Rules was irrational due to vagueness. Considering the nature of their occupation or employment and the possibilities of making gains therefrom, the lawyers' clerks could not be said to be engaged in any gainful occupation or employment as such clerks. There is no rational nexus to the object which the 1982 Rules wished to achieve. The said expression did not indicate any identifiable group of persons. Thus the said provision in Rule 6(1) of the 1982 Rules was violative of Articles 14, 19(1)(g) and 43 of the Constitution of India.

5. Rule 7 of the 1982 Rules provides that non-testamentary documents are to be prepared by licensed deed writers only but no licence was necessary if the same are prepared by an advocate or a pleader or a Solicitor and such documents unless prepared by a licensed deed writer or an advocate or a Solicitor, shall not be accepted for registration. Exemption from the said provision is given to such documents executed by or on behalf of or in favour of Government of India, State Government or local authorities and other bodies corporate and institutions as may be specified by notification in the Gazette.

Exemption is also given to such documents if prepared and executed in other States of India or in a foreign country. Testamentary documents, however, could be prepared by the testator or by any person authorised by him. Mr. Sen commented that Rule 7 of 1982 Rules was contrary to the prohibitions contained in Rules 4 and 6 of the 1982 Rules. Any person including a lawyers' clerk could prepare conveyances and other non-testamentary documents to be executed by or on behalf of or in favour of Government of India, State Government, local authorities and other bodies corporate and institutions as notified in the Gazette and he could also prepare such documents in other States of India or in any foreign country, for example, Bangladesh or Nepal. Further there is no prohibition in the matter of testamentary documents although such documents have no less importance than non-testamentary documents.

6. It was next urged that under Section 57 of the Central Act the registering officers are bound to allow inspection of certain books and indexes and to give certified copies of entries upon payment of fees. While Rule 14 of the 1982 Rules provides that any person whose name is not included in the list of licensed deed writers hung up in the Registration Office and entering such office or its compound except for the purpose of transacting business in connection with registration of his own documents or for making searches or application or applications for certified copies or doing any other transaction on his own behalf or under a Power of Attorney or unless he owns a receipt under Section 82 of the Central Act duly endorsed in his favour shall be deemed to be a tout and his name shall be liable to be included in the list of touts and Rule 15 of the 1982 Rules provides for holding an enquiry against a person suspected to be tout. It was urged that Rules 14 and 15 of the 1982 Rules were clearly violative of the provisions of Section 57 of the Central Act. It was contended that every citizen of India, even if employed, is entitled to a living wage. There is no provision in the Constitution which authorises the Parliament or the State legislature to make Laws reducing the income of a person or from improving his economic condition. In any event any person employed otherwise cannot be debarred from supplementing his incomein any manner. The terms of employment or engagement of lawyers' clerks did not debar them from simultaneously carrying on any other profession or vocation or accepting any other occupation or engagement without however in any way hampering or neglecting their engagement or employment as lawyers' clerks.

7. It was lastly contended that 1982 Rules were made in exercise of the power conferred by Section 80G of the Central Act as substituted by Section 5 of the 1981 Act. Under Sub-section (1) of this substituted Section 80G of the Central Act, the rules framed had to be consistent with the Central Act being principal Act. But 1982 Rules being inconsistent with the Central Act the same was in excess of the powers conferred by the said substituted Section 80G of the Central Act and as such, illegal and void.

8. Mr. Tapas Roy, learned advocate for the State respondents, contended that the lawyers' clerks under the terms and conditions of their licence had to work only for their respective masters and for no other lawyer. They never worked as deed writers and never possessed any deed writers licence. In this context Mr. Roy referred to Rule 874 of the Civil Rules and Orders, Volume 1, Chapter 43. which provides that the licensed clerk of a pleader or mukhtear is bound to employ himself exclusively in the service of his master for the purpose of the master's bona fide legal business. It may be noted that under Rule 879 no such licensed clerk is entitled to work for any other pleader or mukhtear except under certain special circumstances and that also with the permission of the presiding Judge of the Court. Reference was also made to old Sections 80B and 80G introduced in the Central Act by Bengal Act V of 1942 (hereinafter called the 1942 Act). Under the said Section 80G the Inspector General of Registration was given power to make rules consistent with the Act, inter alia, prescribing the manner in which and the term subject to which persons who wrote documents outside the precincts of a Registration office or who frequented the precincts of such offices for the purpose of writing documents may be granted licence and declare the conditions under which persons writing documents outside the precincts of Registration Offices without licence shall be deemed to be touts for the purpose of the Act. Under Section 80B provisionwas made for enquiry regarding persons suspected to be touts. The present new Section 80G introduced in the Central Act in replacement of the old section 80G, by the 1981 Act was in effect not a new section but merely clarified the old Section 80G. Before the 1982 Rules there was West Bengal Registration Rules, 1962 (hereinafter called the 1962 Rules) and reference was made to Rules 120 to 125 and 129 of the 1962 Rules. Similar prohibition as in Rule 19 of the 1982 Rules against a tout being a person acting as a deed writer without a deed writer's licence was also in Rule 129 of the 1962 Rules and similar provision for hanging up a list of licenced deed writers in the Registration Office with a note of warning as contained in Rule 14 of the 1982 Rules was also in Rule 123 of the 1962 Rules. Thus, it would appear that no new prohibition or impediment was introduced by the 1982 Rules in respect of persons visiting the Registration Offices or writing deeds without a deed writers licence. Even under 1962 Rules no one could act as a deed writer without a deed writer's licence and if he did so he was a tout punishable under Section 80F introduced in the Central Act by the 1942 Act. If the lawyers' clerks as alleged by the petitioners acted as deed writers, they did so illegally and no cause of action founded on illegality could be enforced in a court of law and the Writ Court will not grant any relief to them.

9. It was submitted that the expression 'engaged in any gainful occupation or employment' did not mean that a person so engaged or employed should have a particular income or a particular minimum income. This avenue of acting as deed writers is given to persons who arc not engaged in any other gainful occupation or employment. The said expression is used in contradistinction to persons who are not in occupation or employment at all. This is an intelligible differentia and a broad classification has been made by the said expression.

10. The object and purpose of the 1942 Act and 1962 Rules as well as of the 1981 Act and the 1982 Rules was and is to protect the interest of those who take up the profession of deed writers as their means of livelihood from the depredation and interference of undesirable and unskilled or semi-skilled persons.

11. It was next submitted that Section 57 of the Indian Registration Act, 1908 merely provides for granting of inspection of certain indexes and of certified copies of certain documents. The notice mentioned in Rule 14 of the 1982 Rules which was also in Rule 129 of the 1962 Rules puts only reasonable restrictions in the matter of making searches or applications for certified copies so that unknown, undesirable and unauthorised persons could not have access to the valuable records of the Registration Offices, This was merely a regulatory measure. Mr. Roy in support of his contention placed reliance on a decision of the Supreme Court in Devata Prasad Singh v. Hon'ble Chief Justice and the Judges of the Patna High Court reported in : [1962]3SCR305 . Here the Supreme Court held that Sections 9 and 11 of the Legal Practitioners Act, 1879 should be read together and that Rule 2 in Chapter III, Part VII of the General Rules and Circular Orders of the High Court of Judicature at Patna (Civil) 1922 framed by the Patna High Court restricting the right of Mukhtears to plead in Civil Courts is not in excess of the rule-making power of the High Court and is not in violation of their fundamental right to practise the profession of Mukhtear and not in contravention of any fundamental right of the Mukhtears guaranteed under Article 19(1)(g) of the Constitution.

12. Mr. R. N. Mitra, learned advocate for the added respondents disputed and denied that lawyers' clerks ever drafted or wrote deeds or ever inspected any records in the registration offices or obtained copies of any documents therefrom of their own or were ever engaged in the work of drafting or writing deeds. The petitioners being the licensed lawyers' clerks are seeking in this rule to be permitted to act both as lawyers' clerks and deed writers while the licensed deed writers, apart from their work of writing deeds, could neither do any other work for gain nor could be engaged in any other occupation or employment for gainful purpose. If they did so, their licences (1) would not be renewed because of cls. (i) and (iii) of Rule 10, (2) would be suspended because of Sub-rule (3) of Rule 21 and (3) would be cancelled because of Clause (b) of Sub-rule (i) of Rule 20 of the 1982 Rules on account of their disqualificatioh of being engaged in a gainful occupation or employment under Clause (i) ofR. 6 of the said Rules. There is no discrimination against the licensed lawyers' clerks inasmuch as qualifications or disqualifications for both licensed deed writers and licensed lawyers' clerks are the same. The licensed deed writers have to give up their other occupation or employment. Similarly the licensed lawyers' clerks also have to give up their occupation or employment as licensed lawyers' clerks to obtain deed writers' licence. Thus no unreasonable restriction has been put by the 1982 Rules on the licensed lawyers' clerks.

13. It was lastly urged by Mr. Mitra that the expression 'engaged in gainful occupation or employment' did not mean that a person engaged in a particular occupation or employment should earn a particular income. If the occupation or employment gave opportunity to earn or make profit, it was a gainful occupation or employment.

14. This Rule could be disposed of on a very short point. The entire basis of the claim of the petitioners in this Rule is that prior to the coming into force of the 1981 Act and the 1982 Rules the licensed lawyers' clerks had all along acted as deed writers, made searches in the Registration Offices and obtained copies of documents therefrom on behalf of the parties for whom they so acted. This is, however, denied and disputed both by the State respondents as well as by the added respondents. This being a disputed question of fact this Court hi exercise of its constitutional writ jurisdiction would not go into the same. Accordingly this Rule would fail on that ground alone.

15. Be that as it may, since elaborate arguments have been made on various aspects and the validity of the 1981 Act and the 1982 Rules have been challenged, it is only proper to deal with the matter more elaborately and decide the same.

16. To appreciate the contentions raised in this rule in their proper perspective it is necessary to consider the position of law before the introduction of the 1981 Act and the 1982 Rules.

17. Part XIIIA containing Sections 80A to 80F and Part XIIIB containing Section 80G was incorporated in the Indian Registration Act,1908 subsequently called the Registration Act, 1908 being the Central Act by the Bengal Touts Act, 1942 (Bengal Act V of 1942) being the 1942 Act.

18. Rules 120 to 129 of the Bengal Registration Rules 1962 being the 1962 Rules were the rules relating to deed writers and also regarding touts and how the touts were to be dealt with.

19. The Registration (West Bengal Amendment) Act, 1981 being the 1981 Act substituted the old Section 80G incorporated in the Central Act by the 1942 Act by a new Section 80G and the West Bengal Registration (Deed Writers') Rules, 1982 being in 1982 Rules repealed Rules 120 to 129 of the 1962 Rules and introduced a new set of rules relating to deed writers and also regarding touts and how the touts were to be dealt with.

20. Under the said old Section 80G power was given to the Inspector General of Registration to make rules consistent with the Central Act, inter alia, prescribing the manner in which and the term subject to which deed writers' licence could be granted to persons who wrote documents outside the precincts of the Registration Office or who frequent the precincts of Registration Offices for the purpose of writing documents and also declaring the conditions under which persons who wrote documents outside the precincts of Registration Offices shall be deemed to be touts for the purposes of the Central Act in its application to the Province of Bengal now the State of West Bengal.

21. The new Section 80G gave similar powers to the Inspector General of Registration toframe Rules for granting licences to deed writers but elaborating the manner in which and the terms and conditions subject to which and the authority by which such licences could be granted or refused. The power of revocation of a licence granted to choose the persons suitable for grant of such licence, to refuse renewal of such licence and other matters connected with and relating to the grant of such licences were matters which have been elaborated in the new Section 80G were, in my opinion, imbedded in the said old Section 80G. In my opinion, the said old Section 80G also conferred power on the Inspector General of Registration to frame appropriate rules restricting entry ofpersons in the Registration Offices. The 1962 Rules also provided for the qualifications of a person for grant of a deed writer's licence to him. Rule 121 of the 1962 Rules, inter alia, provided that if the Registrar was satisfied that the applicant was a desirable person and fit to be a deed writer he could be granted a licence upon payment of the prescribed fees. Rule 122 of the said Rules, inter alia, gave power to the Registrar to refuse to renew the licence. Rule 124 of the 1962 Rules is a verbatim copy of Rule 14 of the 1982 Rules save for the mistakes occurring therein. The note of warning which is to be hung up with the list of licenced deed writers in the Registration Office under Rule 123 of the 1962 Rules is word for word the same in Rule 14 of the 1982 Rules. There are, however, several mistakes in Rule 14 of the 1982 Rules which is attributable to the negligence and callousness of our legislators and the legislative department of the State.

22. The same prohibition as to entry of persons in the Sub-Registry Office or its compound under the 1962 Rules continued so long before the 1981 Act came into force and the 1982 became operative. For all these years the petitioners neither felt aggrieved by the said prohibition nor did they challenge the validity thereof. In spite of the said prohibition if the lawyers' clerks at all acted as deed writers or visited the Registration Offices for making searches or for obtaining certified copies of documents or for transacting any other business, the only inference that could be drawn was that the same was unauthorised and they did so unnoticed by the registering authorities. Mr. Roy is right in his contention that the lawyers' clerks if they at all acted as deed writers they did so illegally and any cause of action founded on illegality could not be enforced in a court of law and a writ court will not grant any relief to such persons.

23. The prohibition or impediment put on persons other than licenced deed writers by Rule 123 of the 1962 Rules has withstood the test of time. The same prohibition or impediment is also put by Rule 14 of the 1982 Rules.

24. No doubt, Section 57 of the Central Act is in wide terms and inspection of Books Nos. 1 and 2 and of Indexes relating to Book No. 1 is open to all but this does not take away theright of the State Government to introduce legislation or frame Rules restricting such right of the public in general in respect of registration establishments set up by the State Government, that may be necessary for the safety of the registration establishments and the documents registered therein being valuable records. Such restriction, in my opinion, is merely a reasonable restriction and does not violate any of the provisions of the Constitution.

25. It is true that a testamentary document is also an important document and may also be registered, its registration being optional. But non-testamentary instruments as specified in Section 17 of the Central Act are documents which are compulsorily registrable and such documents do not become effective unless they are registered but that is not the case with regard to testamentary instruments. Testamentary instruments enjoy a special privilege under the Succession Act. Military personnel belonging to army, navy and air force may make even oral Wills, while a layman may make a testamentary instrument although in writing by himself without the assistance of a lawyer or a deed writer or any other person and if so desired, the testator could have the same registered.

26. The restrictions with regard, to non-testamentary documents and relaxation with regard to documents executed by or on behalf of or in favour of Governments, local authorities and other bodies corporate or institutions specified by the Government by, Notification in the Gazette is a special privilege given to such authorities and there is no cause for any grievance by the petitioners in respect thereto.

27. As already stated testamentary documents enjoy a special privilege under the Succession Act. Thus relaxation of the rigours with regard to non-testamentary instruments could not be challenged. The Deed writers who have taken up the profession of deed writers as their means of livelihood should have some protection from depredation of their said source of livelihood by persons who have taken up some other profession as their means of livelihood. This is quite reasonable. Thus Rule 7 of the 1982 Rules is, in my opinion, beyond reproach. In this context it may be noted that Rule 129 of the 1962 Rules prohibitedunlicenced deed writers doing any act which was likely to defeat the provisions of any rule made under old Section 80G introduced by the 1942 Act.

28. Good deal of arguments have been made on behalf of the parties in this Rule as to the meaning of the expression 'engaged in any gainful occupation or employment' occurring in Rule 6(i) of the 1982 Rules. The definition in the Law Dictionary referred to by Mr. Sen does not help him because under the said meaning a person wholly or substantially dependent on any trade, business, office, employment or vocation is a gainfully occupied person. Under the said meaning even substantial dependence would be enough to make one gainfully occupied. It is not the argument of Mr. Sen that the licensed lawyers' clerks are not at all dependent on their occupation or vocation or employment as such clerks. In every occupation or vocation or employment which does not carry with it a fixed income or emolument, there is a possibility of earning a very large or a small sum or no sum at all varying from individual to individual but that would not make persons engaged in such occupation or vocation persons not engaged in a gainful occupation or employment. If there is possibility or prospect of making gain in an occupation or, employment or vocation then a person engaged in such occupation or employment or vocation would, in my opinion, be taken to be a person engaged in a gainful occupation or employment. Whether persons are engaged in a gainful occupation or employment could not be decided with reference to each individual engaged in such occupation or employment and by the quantum of the amount earned by each of them. If a particular occupation or employment or vocation afforded opportunities to earn then persons engaged in such occupation or employment or vocation would come within the purview of the expression 'engaged in a gainful occupation or employment'. Thus, the licensed lawyers clerks being engaged in their occupation or employment or vocation as licensed clerks of advocates and other lawyers which afforded them opportunity to earn squarely come within the purview of the expression 'engaged in a gainful occupation or employment'.

29. Under Rules 6, 10, 20 and 21 of the 1982Rules the licence of a deed writer may not be renewed or be cancelled or suspended if he becomes engaged in any other gainful occupation or employment. Thus there is no discrimination between the licensed deed writers and the licensed lawyers' clerks.

30. The notice contemplated under Explanation 1 of Section 3 of the Transfer of Property Act by registration of a document relates to transactions with regard to immovable property which is required by law to be and has been effected by a registered instrument and that also for a person acquiring such property or any part or share or interest in such property. It is not a notice in rem. Testamentary documents do not come within the purview of the notice as contemplated by the said section.

31. From the discussions above on all the points argued before me, I am unable to hold that the classification, if any, intended to be made by the said expression 'persons engaged in a gainful occupation or employment' is vague or has no rational nexus to the object which the 1982 Rules wished to achieve. The same is not only rational but also reasonable, The intent and purpose of the 1982 Rules as would appear from the discussions made above is that a person who engages himself or intends to engage himself in the occupation of a deed writer shall not be engaged or become engaged in any other occupation or employment which affords him an opportunity to earn or in other words which is gainful.

32. For all the above reasons the writ petitioners cannot succeed in this Rule. The Rule is accordingly discharged Interim orders, if any, are vacated. There will, however, be no order as to costs.

Re : C.R. Nos. 6189(W)/83, C.O. 15096(W)/82 and C.O. 15097(W)/82.

33. The judgment delivered by me in C.R. No. 13301(W) of 1982 shall govern C.R. Nos. 6189(W)/83 and C.O. 15096(W) of 1982 and C.O. 15097(W) of 1982.


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