B.C. Ray, J. - (1.) The subject matter of this Rule is a purported amendment made to paragraph 5 of Schedule A of the West Bengal Estates Acquisition Rules framed under Section 59 of the West Bengal Estates Acquisition Act which was published in the Calcutta Gazette (Extra-ordinary) on 11.4.80 under No. 780 L Ref./6M-146/79.
(2.) The short fact of the case is that the petitioner Nos. 1 to 15 who are the advocates under the Advocates Act and practising in the Court of District Judge, Bankura comprising in civil, criminal and revenue jurisdictions and petitioners Nos. 16 and 17 who are carrying on their profession as revenue agents in the Collectorate of Bankura have come up with this writ petition challenging the amendment of paragraph 5 of Schedule A of the Rules laying down the manner of payment of compensation to the intermediary whose interest has vested in the State by virtue of the enforcement of the provision of West Bengal Estates Acquisition Act, 1953 mainly on the ground that the purposed amendment excludes totally or in other words debars totally advocates and revenue agents from withdrawing compensation money and also annuity money awarded in respect of the intermediary interest vested in the State by filing vakalatnama on behalf of their clients, i.e. the intermediaries who engaged them for withdrawing such compensation and/or annuity money from the office of the compensation officer. It has been stated that prior to the enforcement of the amendment of paragraph 5 of Schedule A there was clear provision for appointment of recognised agent by executing vakalatnama in favour of an advocate or revenue agent as provided under the Code of Civil Procedure. By the impugned amendment the provision as regards the appointment of a recognised agent under a vakalatnama executed in favour of a pleader or revenue agent was totally omitted. Before this amendment of the rule was finally published a draft publication of the amendment was made and this draft rule which was published in the Calcutta Gazette on 9 to 79 under Notification No. 3058 L Kef, has b en annexed as annexure A to the petition. It has been stated in the said notification that the draft will be taken into consideration on or after the 15th November, 1979 and any objection or suggestion with respect thereto which may be received by the undersigned before that date will be considered. This notification was issued under the signature of D. Bandopadhya, Secretary to the Government of West Bengal, Immediately after the draft publication was made objections were filed by the petitioners on 3.11.79 objecting to the proposed draft on the grounds, inter alia, that the sole object of the purported draft amendment is to debar legal practitioners or advocates from acting in the matter of withdrawal of compensation as enjoined under rule 19(1) of the West Bengal Estates Acquisition Rules which provided the manner of payment of compensation in accordance with the provisions of Schedule 'A' and in paragraph 5 of that schedule clear provisions were made for engagement of advocates and revenue agents by vakalatnama for withdrawal of the compensation or annuity money on behalf of the intermediaries. It has also been stated in the said objection that the purported amendment will not provide any guarantee to the Intermediary entitled to the manner of payment of compensation under Section 23 of the West Bengal Estates Acquisition Act, 1953 read with Rule 19(1) of the West Bengal Estates Acquisition Rules and it does not provide for adequate safe guards against the misappropriation of the compensation money that may be withdrawn by the authorised agent as in case of lawyers there are certain norms which a lawyer has to conform in accordance with the provisions of the Advocates Act, 1961 which are conspicuous by their absence in the case of authorised agents. Another objection was taken that the purported draft amendment which purports to do away with the valuable right conferred by the statute is bad as they are contrary to the provisions of the Act of the Parliament and as such the purported amendment is unenforceable in law and void. On these allegations this Writ application was moved and a Rule was issued. The prayer for interim order was directed to be considered after notice to the Advocate-General, West Bengal. On 15th July, 1980 an interim order was made to this extent that the amendment will not be applicable to the petitioners but any amount that will be withdrawn by the petitioners such amount without any declaration of charges or expenses shall be kept deposited in suspense account in a Scheduled Bank until further orders Though at the time of hearing of the prayer for interim order the learned Additional Advocate General with his junior appeared for the State of West Bengal yet no memorandum of appearance was filed till 15th January, 1981 when memorandum of appearance was filed on behalf of the State of West Bengal. An affidavit-in opposition sworn by one Shri Ranjit Guha, Assistant Secretary to the Government of West Bengal, Land and Land Revenue Department, on behalf of the respondent No. 1 as well as on behalf of respondents Nos. 2 to 8 was filed on 18th December, 1980 when admittedly no power was filed on behalf of the State respondents, subsequently memorandum of appearance on behalf of the State respondents was filed. An affidavit-in reply has also been filed on behalf of the petitioners to the same.
(3.) At the time of hearing of the Rule Mr. Dutta learned Advocate for the petitioner, raised a preliminary objection about the consideration of the affidavit-in opposition filed on behalf of the State respondents on the grounds that as there was no appearance entered on behalf of the State the affidavit which was filed could not be taken into consideration in view of the provisions or Order 27 rule 8 of the Code of Civil Procedure which requires that before a defence is entered into on behalf of the State the Government pleader or someone on behalf of the State must file his memo of appearance otherwise the case will proceed as in a suit between private parties. It has therefore been submitted by Mr. Dutta that this affidavit which was filed before any memo of appearance was filed on behalf of the State should not be taken into consideration Mr. Dutta has also raised another objection that the officer who swore this affidavit was not competent to swear the same inasmuch as it was not within his knowledge whether objections to the draft amendment Rule were considered by the authorities concerned, i,e., respondent No. I, the Secretary, Land and Land Revenue Department or not and this affidavit therefore should not be looked into on that ground also. Mr. Dutta has also placed before this Court the relevant provisions of Section 23 of West Bengal Estates Acquisition Act which provides that the compensation officer after the date of final publication of the compensation roll shall in the prescribed manner proceed to make payment of compensation to the intermediary entitled lo the same in accordance with the terms of the compensation assessment roll with interest. The manner has been prescribed by rule 9 of the West Bengal Estates Acquisition Rules, 1954. Rule 19(1) provides that the compensation shall be paid under Section 23 in accordance with the provisions of schedule A appended to these rules. Para 5 of schedule A lays down the manner in which the compensation is to he paid. Mr. Dutta has argued that para 5 as it was prior to this amendment clearly provided for appointment of a pleader or a revenue agent under a vakalatnama by an intermediary for withdrawal of the compensation money and/or annuity. This right was taken away by the purported amendment of the rules inasmuch as it omits the words ' relating to the engagement of a lawyer or a revenue agent by a vakalatnama for the purpose of withdrawal of compensation or annuity money from the compensation office" Mr. Dutta has also urged with great vehemence, firstly, that there was no consideration of the objection filed by the petitioners as mentioned in annexure B to the petition nor there was any opportunity of hearing given to the petitioners in support of their objection against the proposed draft amendment of the rules. i.e., para 5 of the schedule A of the said rules Mr. Dutta has further submitted that under Section 21 of the Bengal General Clauses Act the draft of the amended Rules is required tube published before it is made final. In this case it has been submitted that the amended rules that were published no draft of the same was published and as such there being a non-compliance with the provisions of Section 24 of the Bengal General Clauses Act the final publication of the Rules is invalid and ineffective. Mr. Dutta has also submitted that the right to carry on any trade or profession is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India and under sub Article 6 of Article 19 only reasonable restrictions can be imposed in the interest of the general public. The amended rules which totally debar the engagement of lawyers by vakalatnama for the purpose of appearing before the compensation officer for withdrawal of compensation and/or annuity awarded in favour of the intermediary is a restriction not at all reasonable nay not for the interest of general public and as such it has been submitted that it is a fraud on the statute and it is a nullity creating unreasonable restriction on the fundamental right guaranteed under Article 191 (l)(g) of the Constitution of India. Mr. Dutta has also submitted that assuming that it is not a fundamental right still then it is a statutory right flowing from the Advocates Act. 1961. This Advocates Act whereby the rights of the Advocates have been made in accordance with the entry made in list I of the VIIth Schedule. The proposed amendment made by the State Government being contrary to or in other words opposed to the express rights conferred upon the advocates by Sections 29 and 30 of the Advocates Act is invalid and bad because it is not within the competence of the State Government to make such a rule. Some decisions have been cited at the Bar on this point. Mr. Dutta has also submitted on merit that the alleged ground for amendment is imaginary and as vague as possible. In this connection Mr. Dutta has referred to the affidavit-in-reply of several advocates stating that the allegations of misappropriation and/or non-payment of compensation money after withdrawal of the same to the intermediaries are not substantiated. It has also been submitted by Mr. Dutta that if there is any such case of non-payment of money by any advocate after withdrawal of the same there is enough protection for the client firstly the matter may be brought to the notice of the Bir Council which can take suitable steps against the lawyer besides other actions which can be taken for recovery of the sum. Moreover, the allegations that sometimes vakalatnamas are not genuinely executed by the clients, Mr. Dutta submits, is not such an objection that it cannot be tested or verified. It can easily be referred to the Bar Association where the advocate is a member and the same can be duly verified. Mr Dutta has also submitted that in case of withdrawal of money through an authorised agent there is less security for the intermediary inasmuch as there is no norm which the authorised agent has to comply with after withdrawing the money and for non-compliance of which any steps can be taken for that except bringing civil action against him. It has therefore been submitted that the proposed amendment which totally takes away the right of an advocate and/or revenue agent from being engaged for the purpose of withdrawal of compensation money is contrary to the rights conferred on an advocate under the Advocates Act. It has also been submitted that the proposed amendment purports to create a discrimination between an authorised agent and a recognised agent by totally denying the recognised agent the right to withdraw compensation money on behalf of intermediaries.;