Binod Kumar Roy and Lakshmi Bihari, JJ. - (1.) The petitioner has come up with a prayer to quash Order No-76/91 dated 4.9.1991 passed by the respondent No. 1 (the District & Sessions Judge. Dehradun) under Section 36 of the Legal Practitioners Act, 1879 (hereinafter referred to as the Act) as contained in Annexure-7 to this writ petition recording a finding that he Is satisfied that the petitioner habitually acts as a tout and accordingly his name may be Included in the list of touts, if any, maintained previously and if no such list has yet been prepared, a list as contemplated shall be now prepared including his name as tout at Serial No. 1 thereof and further exercising his powers under sub-section (4) thereof excluding him from the precincts of the District Court. Dehradun. 1.1. The aforesaid order reads thus : "On receipt of the resolution dated 16th July, 1991 from Bar Association. Dehradun. requesting me to declare Sri Nathi Ram s/o Sri Jhandoo Lal r/o Jhanda Mohalla. Dehradun, as 'tout', an enquiry in pursuance of Section 36 (2A) of the Legal Practitioners Act. 1879, was directed to be made by me by Sri S. M. Goel. 1st Addl. Sessions Judge, Dehradun. The Enquiry Officer, after affording an opportunity to Sri Nathi Ram to make a representation and after hearing him has submitted a report today. The Enquiry Officer is of the considered opinion that Sri Nathi Ram aforesaid be declared as a tout and his name should be published as a tout under the provisions of Section 36 of the Act. I have considered the report of the Enquiry Officer and found that the resolution of the Bar Association, which was passed unanimously, is a valid and strong evidence of the general repute of Sri Nathi Ram. Sri Nathi Ram, who was afforded due opportunity, has not been able to rebut the evidence furnished against him in the form of resolution of the Bar Association. The resolution of the Bar Association categorically speaks of the fact that Sri Nathi Ram is a tout. Taking into consideration the unrebutted resolution of the Bar Association and the report of the Enquiry Officer, I am satisfied that Sri Nathi Ram habitually acts as a tout. Accordingly his name may be included in the list of touts, if any maintained previously. If no such list has yet been prepared, a list as contemplated under Section 36 of the Act shall be now prepared and in this list name of Nathi Ram aforesaid shall be included as tout at serial No. 1. In exercise of the powers conferred under sub-section (4) of Section 36 of the Act I hereby exclude from the precincts of the Court Sri Nathi Ram whose name is included in the list of touts. Let a copy of this order be sent to Sri Nathi Ram s/o Sir Jhandoo Lal r/o Jhanda Mohalla. Dehradun, for his information and compliance. A copy of this order shall also be sent to the District Magistrate, Dehradun and the subordinate courts as well as the Bar Association, Dehradun, for Information. This order be also pasted on the notice board of the new and old buildings of this judgeship for general information."
(2.) The Relevant Facts : 2.1. According to the petitioner he had appeared on 27.7.1991 before the respondent No. 1 and was apprised of the Resolution dated 16.7.1991 of the Bar Association, Dehradun, resolving that as he is a tout, he be declared as such. In this regard he vide his application dated 30.7.1991 filed before respondent No. 1 prayed to rescind that resolution on the ground that he is husband and brother-in-law of Mala Verma and Monika Verma. Advocates who practice on the criminal side and for taking it back on the ground that for dropping them he has to go to civil court off and on; that the decision of the Bar is ex parte and baseless, which does not disclose that Mala Verma, Advocate is his wife ; that even though his wife is member of the Bar Association neither she or he were disclosed of any reason or given any notice. Respondent No. 1 entrusted enquiry to respondent No. 3 under subsection (2A) of Section 36 who sent a show cause notice dated 14.8.91 as contained in Annexure-2 to the petitioner calling upon him as to why he should not be so declared, and to produce any defence and to give list of evidence, both oral and documentary, and that in the event of his non-appearance it would be deemed that he has nothing to say in rebuttal. A similar notice was sent to Mala Verma who is claimed by the petitioner to be his wife. Smt. Mala Verma filed her show cause claiming to be wife of the petitioner before respondent No. 3 as contained in Annexure-6 praying to rescind the resolution for the reasons mentioned therein. The petitioner also filed his show cause, as contained in Annexure-5 praying to rescind the show cause for the reasons mentioned therein. It appears that thereafter respondent No. 2 sent his enquiry report on the basis of which the Impugned order was passed. 2.2. In the counter-affidavit of respondent No. 2 it has been denied that the petitioner is husband of Smt. Mala Verma and brother-in-law of Km. Monika Verma, Advocates, and stated inter alia that since the petitioner is not a member of the Bar, hence no notice of the specially convened Meeting held on 16.7.91 in regard to his being a 'tout' was required to be given to him in which it was unanimously decided to get him declared 'tout' : that the petitioner was afforded an opportunity by respondent No. 2 before he was declared as a tout : and that the order dated 4.9.1991 is self speaking and does not call for any interference, which was passed after respondent No. 1 was fully satisfied. 2.3. The petitioner had filed a rejoinder to the aforesaid counter-affidavit. The Submissions :
(3.) With reference to the statements made in Paragraphs 11 and 12 of the writ petition Sri Ranjit Saxena, learned counsel for the petitioner, submitted that the learned District Judge has wrongly mentioned in is order that an opportunity of hearing was afforded to the petitioner who overlooked the fact that such an opportunity was not given by the Enquiring Officer respondent No 3. In support of the facts stated In Paragraphs 11 and 12, Mr. Saxena pointed out that no counter-affidavit has been filed by respondent No. 1 or 3 and despite opportunity being granted to the learned standing counsel, who has entered appearance on their behalf (respondent Nos. 1 and 3), the records of the proceedings have not been produced before us to show that they had in fact afforded opportunity of hearing to the petitioner, muchless due opportunity. In order to repudiate the correctness of the Resolution, his wife has also filed her show cause before respondent No. 3. Respondent No. 1 has not applied his mind to the glaring fact that even though from the resolution it was clear that it was passed by majority of the members but respondent No. 1 has erroneously observed that It was passed unanimously.;