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.;