M.N. Roy, J.
1. The petitioner, who is a registered Clerk of a learned lawyer, has challenged an order dated Aug. 8, 1971, made in a proceeding under Section 36 of the Legal Practitioners' Act, 1879 (hereinafter referred to as the said Act), by the learned District Magistrate, 24 Parganas, whereby he has been declared to be a 'Tout' within the meaning of the said Act.
2. Admittedly, the petitioner was originally attached to one Sri Bhaba Ranjan Sur, a learned lawyer practising in the Barrackpore Court, as his registered Clerk. Thereafter, on the recommendations of the said Sri Sur, he was appointed as a registered Clerk under Sri Joy Narayan Bhattacherjee, a learned Advocate, practising at the Alipore Judge's Court. He has stated that all throughout, he has not only served the cause of his master but also that of their clients sincerely, honestly and with due diligence. He has averred that he has a social status and he is instrumental in having his master to build up good practice. It has been alleged by him that his social status and financial position created jealousy in some members of the Bar and because of such jealousy and ill feeling, gome differences arose between him, other persons including some employees attached to the Court where he used to serve and learned Lawyers. He has further alleged that because of the facts as aforesaid, some of the learned members of the Barrackpore Bar Association, persuaded the Association to adopt a resolution against him and thus to put an end to his career by declaring him a 'Tout'. He has also alleged that on being so influenced, the Bar Association, Barrack-pore, held a General Meeting on June 2, 1965, to adopt a resolution to the above effect and in fact such meeting was held, wherein under the Presidentship of Sri A. K. Chakraborty, President of the Bar Association concerned, the following resolution was adopted unanimously.
'The members of the Barrackpore Bar Association met at a General Meeting on 2-6-65 at 1 P. M. in the Association Hall specially convened for the purpose and after considering the complaint of Sri Manindra Kumar Rakehit, Advocate, a member of the Association and after due discussion about the conduct and activities of Sri Manindra Narayan Ghose a lawyer's clerk of this court were satisfied that the said clerk was a tout and unanimously resolved that Sri Manindra Narayan Ghose a person known as Lawyer's clerk of the Barrackpore court be declared a tout. The Sub-Divisional Magistrate, Barrack-pore be informed about the resolution.
The members also resolved that the District Magistrate of 24 Parganas be requested to declare and enlist him as a tout under the appropriate provisions of law.'
There have been claims and counter claims about the validity, bona fide and the propriety of the said resolution. The petitioner has contended that the said resolution was illegal and irregular, apart from being mala fide one, and the General Meeting in question, in which the same was passed, was not properly convened and held. Those allegations have however, been refuted and denied categorically by the respondent No. 5, Barrackpore Bar Association.
3. However, after the resolution, being so passed, was forwarded to the Additional District Magistrate, 24 Parganas (North), for necessary action and not to the District Magistrate concerned and the said Additional District Magistrate in his turn asked the sub-divisional officer, Barrackpore, to bold the enquiry in the matter. Admittedly, the District Magistrate himself did not pass any order on enquiry. It has further been alleged that the sub-divisional officer, Barrackpore, who was so asked to hold the enquiry, did not hold the enquiry himself but directed shri M. N, Panamanick, Magistrate First Class, respondent No. 2 to hold the enquiry. These actions, the petitoner has contended to be irregular, illegal and void, under the relevant provisions of the said Act. The provisions which would be relevant for this proceeding, may be quoted hereunder: 'tout' means a person--
(a) Who procures, in consideration of any remuneration moving from any legal practitioner, the employment of the legal practitioner in any legal business; or who proposes to any legal practitioner or to any person interested in any legal business to procure, in consideration of any remuneration moving from either of them, the employment of the legal practitioner in such business;
36. Power to frame and publish lists of touts.
(1) Every High Court, District Judge, Sessions Judge, District Magistrate and Presidency Magistrate, every Revenue-officer not being below the rank of a Collector of a District, and the Chief Judge of every Presidency Small Cause Court (each ag regards their or his own Court and the Courts, if any, subordinate thereto) may frame and publish lists of persons proved to their or his satisfaction of to the satisfaction of any subordinate Court as provided in Sub-section (2A), by evidence of general repute or otherwise, habitually to act as touts, and may, from time to time, alter and amend such lists.
Explanation-- The passing of a resolution, declaring any person to be or not to be a tout, by a majority of the members present at a meeting specially convened for the purpose, of an association of persons entitled to practice as legal practitioners in any Court or Revenue-Office, shall be evidence of the general repute of such person for the purposes of this sub-section.
(2) No person's name shall be included in any such list until he shall have had an opportunity of showing cause against such inclusion,
(2A) Any authority empowered under Sub-section (1) to frame and publish a list of touts may spend to any Court subordinate to such authority the names of any persons alleged or suspected to be touts, and order that Court to hold an inquiry in regard to such persons; and the subordinate Court shall thereupon hold an inquiry into the conduct of such persons and, after giving each such person an opportunity of showing cause as provided in Sub-section (2), shall report to the authority which has ordered the inquiry the name of each such person who has been proved to the satisfaction of the subordinate Court to be a tout; and that authority may include the name of any such person in the list of touts framed and published by the authority; Provided that such authority shall hear any such person who, before his name has been so included, appears before it and desires to be heard.' There is also no dispute that the respondent No. 2, Shri Paramanick, Magistrate First Class, held the purported enquiry and examined several witnesses, including the master of the petitioner. It further appears from the proceeding that 11 witneses, out of the 12 as aforesaid, were examined at the instance of the Additional District Magistrate, respondent No. 4, and the remaining one viz., the master of the petitioner was examined by or at his instance. It has further been alleged that none of those witnesses said anything which would come within the meaning of the word 'Tout' as defined in the said Act. On the other hand, it appears that the master of the petitioner completely belied the allegations which were levelled against him. It has been alleged by the petitioner that even in spite of such state of evidence, the said Shri Paratnanick, without properly considering the materials available on record and in fact relying on some extraneous materials and considerations, to which the petitioner had no knowledge, and he was never allowed to place his defence against those materials, returned a finding of guilt against the petitioner and recommended that there were sufficient grounds to declare him a 'Tout'. It further appears from the statement as made in the petition that from the initial stage, the petitioner raised objections against the jurisdiction of the said Sri Paramanick, to hold the enquiry in question. The said report is in Annexure 'C' and such report was forwarded to the respondent Additional District Magistrate, who in his turn, again forwarded the report to the learned District Magistrate, for necessary action.
4. The said District Magistrate in terms of Section 36(2) of the said Act, issued a notice on the petitioner for initiation of necessary proceedings, which according to the petitioner was concluded on June 30, 1970 before the learned District Magistrate and July 16, 1970 was fixed for delivering the judgment. It has been alleged further by the petitioner, that curiously enough and for reasons best known to the learned District Magistrate, the matter was kept pending till Aug. 8, 1971 and on the eve of his transfer from the concerned district the learned District Magistrate delivered his order, which is in Annexure 'D', and whereby the petitioner has been declared 'Tout' and was further directed to be excluded from the precincts of the Criminal Court, Barrack-pore.
5. This action, of and by the learned District Magistrate concerned, has also been termed by the petitioner to be without jurisdiction and in excess of powers under Section 36 of the said Act. He has further contended the said order to be illegal, inoperative, void and bad. That apart, it has been contended by the petitioner that the learned District Magistrate, also acted without jurisdiction in taking into consideration the report of the said Sri Paramanick, wherein the petitioner was held as a 'Tout', as the said Sri Paramanick had no jurisdiction to hold the enquiry in question, That, apart, the petitioner has contended that the enquiry held by the said Sri Paramanick, was also unauthorised, as he was not authorised to hold the same by the learned District Magistrate. He has further contended that the enquiry held by the said Sri Paramanick, on the directions of the Sub-divisional Officer, Barrackpore was without jurisdiction as the said Sub-divisional Officer was not also authorised and justified in issuing such directions to the said Shri Paramanick and the more so when the Additional District Magistrate concerned himself had no authority or jurisdiction to direct the enquiry. It was also contended by him that the petitioner being registered as a Clerk of a learned Advocate in the Court of the District Judge, Alipore, the District Magistrate concerned in the instant case had no authority to declare him a 'Tout' or to initiate against him any proceeding under Section 36 of the said Act and he has specifically stated that the learned District Magistrate cannot clothe himself with a jurisdiction or confer upon him such jurisdiction by giving erroneous decision. It has further been contended that the hearing either before the said Sri Paramanick or the learned District Magistrate concerned was nothing but an empty formality and wholly illusory and was granted in pretended compliance with the mandatory provisions of the said Act. In fact, he has stated that there was not only no compliance with the requirements of the statute, but the proceedings were initiated and completed without jurisdiction and in violation of the principles of natural justice, as at no point of time, he had no proper or ample opportunities to represent his case. The petitioner has further submitted that the learned District Magistrate further acted illegally in not taking into consideration duly the admissibility of the resolution as passed by the Bar Association, Barrackpore as the same do not fulfil the requirements of law, in terms of the explanation to Section 36(1) of the said Act, He has made specific allegations that the resolution in question was not a proper one, as the same was not properly notified or represented and/or duly attended to or passed by the members of the said Association. That apart, on merits, the petitioner submitted that the evidence as produced before the said Sri Paramanick, did not disclose any fact which could lead to declare him a 'Tout' and there was no evidence before the learned District Magistrate, to show that the petitioner procured any consideration or any remuneration from any legal practitioner or the employment of any legal practitioner in any legal business. There is also no evidence forthcoming to show that for specific purpose of procuring clients, the petitioner used to visit frequently the precincts of Civil or other Courts and/or places of public resort. That apart, he has also contended that there is no evidence to show that he is habituated to propose to any legal practitioner or any person, to act any legal business, in consideration of any remuneration from either of them or the employment of the legal practitioner in such business.
6. On the pleadings as above, the first and foremost point which is required to be found out and determined is, whether the action in the instant case was taken in accordance with the provisions of Section 36 of the said Act. The power under the said section is invested with every High Court, District Judge, Sessions Judge, District Magistrate and Presidency Magistrate, every Revenue Officer not below the rank of a Collector of a District, and the Chief Judge of every Presidency Small Causes Court (each as regards their or his own Court and the Courts, if any, subordinate thereto), for framing and publishing list of persons proved to their or his satisfaction on evidence or to the satisfaction of any subordinate Court as provided in Sub-section (2A), as 'Touts'. The proceedings for such determination may amongst others be initiated on the basis of a resolution passed by the majority of the members of the Bar Association concerned. But before such declaration, the person concerned must be given an opportunity of showing cause. Such opportunity in my view must include the principles of natural justice and would also include a right to be heard and make representations against the proposed action. The authorities competent to hold the relevant enquiry for the purposes as aforesaid have been specifically mentioned in Section 36(2A) of the said Act. Those provisions in Section 36(2A) specifically empower the authorities as mentioned in Section 36(1) to frame and publish a list of touts and to send the same to any Court subordinate to them the names of any persons alleged or suspected to be touts, and order that Court to hold an inquiry. On such reference, the Subordinate Court concerned, is required to hold the necessary inquiry into the conduct of the person or persons so notified, after giving due opportunities of showing cause and then to report to the referring authority and then, on consideration of such report, the concerned referring authority, may include the name of such person as reported, in the list of touts as framed and published. The referring authority as mentioned hereinbefore viz., the authorities as mentioned in Section 36(1) would be 'such authority' as mentioned in proviso to Section 36(2A) of the said Act and as such before passing the final order, they are also required to hear the person concerned, against whom a proceeding has been initiated and who is going to be declared a 'Tout'. As observed by this Court, In the matter of Nafar Chandra Dome, 24 Cal WN 1074 : (AIR 1920 Cal 833) an order directing a penson to be a tout can only be made by one of the authorities as specified in Section 36(1) of the said Act and upon evidence taken by such authority himself.
7. In this case, the resolution on being passed, was admittedly sent to the Additional District Magistrate, 24 Parganas, who directed the matter to the Sub-divisional Officer, Barrackpore, for enquiry and he himself did not hold the enquiry, but referred the same again to the said Shri Paramanik, Magistrate First Class, Barrackpore. Thus, in terms of Section 36(1), the District Magistrate, 24 Parganas was authorised and the proceedings were required to be initiated by him and he in his turn, in terms of Section 36(2A) could have referred the necessary enquiry to any Court subordinate to him and that not having been done the initiation was improper. This is the first irregularity in the matter. Assuming but not accepting the fact that the initiation in the instant case by the Additional District Magistrate, 24 Parganas (North), was due and proper, as the resolution was sent to him and he was authorised to have the necessary enquiry conducted by his subordinate authority viz., the Sub-Divisional Officer, Barrackpore, but till then the report was vitiated as the enquiry was not conducted by the said Sub-Divisional Officer, but the same was done and report was made by the said Shri Paramanik, Magistrate First Class, Barrackpore. if at all, the Sub-Divisional Officer concerned, as the delegate of the Additional District Magistrate had the authority to enquire and make the report, but he could not in any event redelegate such right or power to another. The said Shri Paramanick as the delegate of the delegated authority, thus had no right or competence to enquire in the matter and to report. Therefore, the action taken on the basis of such report cannot secondly be sustained. It must be mentioned here that the learned Advocates appearing for the respondents referred to Section 36(1) and more particularly to portions marked with bracket and contended that the word 'each' as mentioned therein, would mean and Qualify that the initiation as made in the instant case by the Additional District Magistrate, was proper as he in terms of the said qualifying or authorising clause, was competent to initiate the proceeding and thus where the enquiry conducted by his subordinate Court. I am unable to accept such contentions and I hold that the said word 'each' connotes and means the authorities as mentioned in the earlier part of Section 36(1) and. that would not mean and include the Additional District Magistrate as in the instant case.
8. Let us now take up for consideraration the other objections of the petitioner, particulars whereof have been mentioned hereinbefore. I am of the view that since the petitioner on the date of the initiation was attached to a learned Advocate practising at Alipore, so the initiation of the proceeding by the authorities at Barrackpore and the more so when he was not rendering his services in such jurisdiction, have no basis and are without any substance and the proceedings were initiated for instances or acts of the petitioner, while he was serving under the jurisdiction of the Barrackpore Court. It would also not be possible or proper for this Court to make any determination on the propriety, validity or otherwise of the resolution as passed by the Barrack-pore Bar Association, which incidentally was the basis of the initiation.
9. Those apart, I hold that Section 36(1) requires hearing at least at two stages. Firstly, at the stage of enquiry and secondly, at the stage of passing the order and such hearing would mean personal hearing and the said section further incorporates the theory of principles of natural justice.
10. In view of the above, the application should succeed, so also the Rule and the same is thus made absolute. There will be no order for costs. Let appropriate writs be issued.
11. Although I have made the Rule absolute, yet I am not unmindful of the fact that if a person is really guilty or there are such charges against him under the said Act, he must be duly and appropriately proceeded with and as such I direct that this order will not prejudice the respondents from proceeding against the petitioner afresh and to determine the, case in accordance with law. I must also record that in the order which I have proposed, I have not gone into the merits of the case and the same is left for the consideration of the appropriate authority under the said Act. I also express my desire and that too considering the age of the proceeding, that steps, if any, and if at all, in the matter, be taken and completed within 6 months.