Asutosh Mookerjee, Acting C.J.
1. We are invited in this Rule to set aside an order made under Sub-section (1) of Section 36 of the Legal Practitioners Act, on the ground that the order was made in contravention of its provisions. That section is in these terms: (1) Every High Court Judge, 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 as 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, by evidence of general repute or otherwise, habitually to act as touts, and may, from time to time, alter and amend snob, lists....' This provision has been interpreted to mean that the evidence must be taken by the officer concerned. This was first laid down in the case Prasanna Kumar Das, In the matter of 12 C.W.N. 843 note and the rule there enunciated was followed in Madhu Pershad, In the matter of 6 C.W.N. 289 and Chandi Charan Dey, In re 12 C.W.N. 842. This has been the recognized interpretation of this provision of the law ever since 1897 and we are surprised that, on the present occasion, a procedure has been followed which is wholly inconsistent with the interpretation thus placed on the Statute. In this case, the evidence was taken by the Sub Divisional Officer, who embodied his conclusion that the petitioner was a tout in an order which he placed before the District Magistrate for confirmation, the District Magistrate thereupon signified his approval, by the word 'yes'. This was clearly in contravention of the provision of Section 36.
2. Our attention hap, however, been drawn to the case of Hari Charan Sirkar v. District Judge of Dacca 6 Ind. Cas. 327 : 11 C.L.J. 513 at p. 520 : 11 Cr.L.J. 320 where ft was observed that the Court would not set aside an order under Section 33 when the proceedings had been regularly conducted and the order was manifestly justified by the evidence. In that case, an objection was taken that the proceedings were bad by reason of misjoinder. Here, however, it cannot be said that the proceedings have been regularly conducted, when in fact they have been conducted in contravention of the provision of the law. It is further plain that the decision in Rasik Lal Nag, In the matter of 88 Ind. Cas. 980 : 44 C. 639 : 24 C.L.J. 190 : 20 C.W.N. 1284 : 18 Cr.L.J. 420 (to which. we have been referred) is also distinguishable. That case was decided under Section 14 of the Legal Practitioners Act which empowers the High Court alone to pass the final order in respect of a Pleader or a Muktear. The section contemplates that the evidence may be taken by a Subordinate Officer and the matter then reported to the High Court with the expression of an opinion by the Judge, Magistrate or the Revenue Authority through or by whom the reference is made. In the case before us, the order has to be made by a certain specified authority and Section 36 specifically requires that that authority, and that authority alone, should take the evidence which is the foundation of the order.
3. The result is that the Rule is made absolute and the order discharged.
4. I agree.