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HIGH COURT OF ORISSA
R. L. Narasimham, C. J. And S. Barman, J.
BHARAT NAIK - Appellant
Versus
ASSISTANT REGISTRAR, CO-OPERATIVE SOCIETIES AND ANR. - Respondent
O. J. C. 427 Of 1956
Decided On : April 07, 1958
CO-OPERATIVE SOCIETIES ACT - SECTION 133 - CONSTITUTIONALITY - RIGHT TO LEGAL REPRESENTATION - ARTICLE 14 - CLASSIFICATION OF AUTHORITIES - REASONABLENESS - UNFETTERED DISCRETION - TRANSFER OF CASES.
Fact of the Case:
The Orissa Co-operative Societies Act, 1951 (Orissa Act XI of 1952) came into force on 1-7-1955, consolidating and repealing previous Acts relating to cooperative societies in Orissa. Section 133 of the Act barred legal practitioners from representing parties in proceedings under the Act before certain authorities, including the Registrar of Co-operative Societies, persons exercising the powers of the Registrar, arbitrators, and liquidators. Two O. J. Cs. challenged the constitutional validity of Section 133, arguing that it violated Articles 19(1)(g) and 14 of the Constitution.
Finding of the Court:
The Court held that the first two contentions, regarding the right of legal practitioners to carry on their profession and the right of litigants to engage legal practitioners, were rightly given up by the petitioners in light of previous Bench decisions of the Court. The Court then proceeded to examine the third contention, that Section 133 read with Section 73 of the Act violated Article 14 of the Constitution by permitting discrimination between different litigants.
Issues: 1. Whether Section 133 of the Orissa Co-operative Societies Act, 1951, violated Article 19(1)(g) of the Constitution by imposing an unreasonable restriction on the right of legal practitioners to carry on their profession? 2. Whether Section 133 violated Article 14 of the Constitution by imposing an unreasonable restriction on the right of litigants to engage legal practitioners? 3. Whether Section 133, read with Section 73, violated Article 14 by permitting discrimination between different litigants?
Ratio Decidendi: 1. The Court held that the right of legal practitioners to practise before a Court or tribunal is not an absolute right, but is subject to the provisions of the law for the time being in force. Therefore, a prohibition against legal practitioners appearing before a particular class of tribunal or Court would not amount to an unreasonable restriction on their right to carry on their profession. 2. The Court held that there is no fundamental right for a litigant to be represented by a legal practitioner in Civil litigation, or for a legal practitioner to appear before any Court or tribunal. Therefore, the mere conferment of unfettered discretion in a high authority like the Registrar of Co-operative Societies to prohibit legal representation in certain proceedings would not offend Article 14. 3. The Court held that the distinction made in the Act between higher authorities (Registrar, State Government, Collector, and Board of Revenue) and lower authorities (persons exercising the powers of Registrar, liquidator, arbitrator, etc.) was reasonable. The Court noted that the Legislature may have considered that the main questions to be decided before the lower authorities may not generally involve difficult questions of law, and that legal representation may not be necessary. The Court also noted that every order passed by a lower authority was subject to appeal to the Registrar, before whom a legal practitioner could appear as of right.
Final Decision: The Court rejected the petitions challenging the constitutional validity of Section 133 of the Orissa Co-operative Societies Act, 1951.
R. L. NARASIMHAM, C. J.
( 1 ) THESE two O. J. Cs. were heard analogously and will be disposed of in one judgment as both of them involve a common constitutional question.
( 2 ) BY these two applications the constitutional validity of Section 133 of the Orissa co-operative Societies Act 1951 (Orissa Act XI of 1952 -- hereinafter referred to as the Act) has been challenged. That Section reads as follows : "133: Legal practitioners shall not be entitled to represent parties in proceedings under the Act or the rules before any person other than the registrar exercising the powers of Registrar, or any person subordinate to him or acting on his authority, an arbitrator or body of arbitrators, or a liquidator". In O. J. C. No. 290 of 1956 a dispute under the said Act was pending before the assistant Registrar of Co-operative Societies, Cuttack Circle, having, been transferred to his file by the Registrar. The applicant wanted to be represented in the proceeding through an Advocate, but the Assistant Registrar refused permission relying on the aforesaid Section 133. In O. J. C. No. 427 of 1956 also a similar dispute was pending before the Liquidator, Orissa Cooperative Cloth and yarn Syndicate-cum-Assistant Registrar of Co-operative Societies and the said liquidator refused to permit the petitioner to be represented in that proceeding through a legal practitioner.
( 3 ) THE Act came into force on 1-7-1955. It is a consolidating Act repealing (i) the bihar and Orissa Co-operative Societies Act 1935, (ii) the Madras Co-operative societies Act 1932 and (iii) the Orissa Co-operative Land Mortgage Bank Act 1938, and unifying in one Act the entire law relating to Co-operative Societies in the whole of Orissa. Without going into unnecessary details about the provisions of the act it is sufficient to say that the most important functionary under the Act is the registrar of Co-operative Societies, appointed by the State Government, in whom is vested the entire supervision and control of the co-operative movement in the state. Section 8 of the Act authorises the Government to appoint other persons to assist the Registrar and confer on such persons all or any of the powers entrusted to the Registrar by or under the Act. In the remaining Sections of the Act a sharps distinction is made between the registrar on the-one hand and a person exercising the powers of the Registrar on the other. Chapter IX deals with disputes regarding the business of a co-operative society and Section 73 confers on the Registrar the power to decide such a dispute either himself or transfer it for disposal (1) to any person authorized by the State government to exercise the powers of the Registrar or (2) to an Arbitrator appointed by the State Government. Sub-section (3) of Section 73 confers consequential powers on the Registrar to withdraw a reference transferred to the aforesaid officers and either hear it himself or transfer it to some other officer. Chapter X deals with the winding up and dissolution of co-operative societies and the appointment of liquidators for that purpose. Chapter XII says that the Registrar and other persons v exercising his powers including liquidators, shall have powers under the Civil Procedure Code for the purpose of enforcing the attendance of witnesses and to compel the production of documents, etc. They also have the power to attach properties (section 113 (2)), issue injunctions (Section 104), exercise the powers of a civil Court for the execution of their orders (Sections 106, 107, 108, 109, 110 and 112), etc. Section 128 confers powers on the Registrar to hear appeals against the decisions of any of his subordinate officers exercising the powers of the Registrar, or of arbitrators or liquidators appointed under the Act. He has also powers of review and revision under Sections 130 and 131. In addition, the State Government has been conferred powers of revision under section 132. Section 134 bars the jurisdiction of the Civil Court
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