P L D 1963 Dacca 774 (PLP)

2. The first point that was raised in support of the Rule was ultimately not pressed in view of the production of the Notification No. CAL‑230/60‑889, dated the 22nd July 1960 by which the Additional District Magistrate was authorised to exercise all powers of a District Magistrate.

3. Mr. Huda attempted to argue that as there was nothing to show on the record that the Additional District Magistrate was authorised to exercise the powers of the‑ District Magistrate the order passed by him under section 36 of the Legal Practitioners Act was invalid. In view of the production of a copy of the notification he did not ultimately press this point. The main argument that has been advanced in this Rule before me is that there is no evidence on the record to show that the present petitioner is a tout. Subsection (2) of section 3 of the Legal Practitioners Act defines a tout as one who procures in con sideration 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 considera tion of any remuneration moving from either of them, the employment of the legal practitioner in such business. The impugned order has been passed under section 36 of the Legal Practitioners Act. It empowers 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 to frame and publish list of persons proved to their or his satisfaction or to the satisfaction of any Subordinate Court a, provided in subsection (2) (a) by evidence of general repute or otherwise habitually to act as touts and may from time to time A alter and amend such lists. An explanation to this section was added by Act XV of 1926 which provides that the passing of al resolution, declaring any person to be or not to be a tout, by a majority of the members present at a meeting specially con vened for the purpose, of an association of persons entitled to practice as legal practitioners in any Court or Revenue‑officer, shall be evidence of the general repute of such person for the purposes of this subsection.

4. Mr. Huda though not very seriously wanted to argue that the meeting that was convened in this case was not done specially for the purpose of declaring the present petitioner as a tout. This argument cannot be accepted in view of what appears from the resolution itself. The resolution clearly indicates the meeting was convened for the purpose of considering a complaint made by one of the members of the association Moulvi Munir Hossain which was to the effect that the petitioner was acting as a tout and he was otherwise an undesirable person to continue as Mukhtear's clerk. The petitioner is a registered clerk of Moulvi Serajuddin Ahmed, a Mukhtear of the Comilla Bar. In view of what has been stated in the resolution I am not prepared to accept the argument of Mr. Huda that the meeting was not specially convened for the purpose of declaring the present petitioner as a tout.

5. The next argument that has been advanced and which needs serious consideration is that there is no evidence on the record to show that the present petitioner is a tout. I have already quoted the definition of a tout in the Legal Practitioners Act. Mr. Huda's contention is that the resolution which forms the basis of the order passed by the learned Additional District Magistrate does not show that the members of the association were satisfied from evidence that the present petitioner either employed any legal practitioner in consideration of any re muneration moving from him or there was any such proposal to that effect to any legal practitioner. Learned Advocate in support of his contention, that in the absence of any thing to show that the members of the Mukhtears Bar Association who passed the resolution had any such evidence before them and they accepted the same, the order cannot be sustained, has relied upon two decisions: the first being the decision in the case of Ugam Prasad Pandey v. King Emperor (I L R 6 Pat. 567). In that case a resolution was passed by a sub‑committee of a Bar Association and the sub‑committee consisted of seven members. The resolution was not accepted by the High Court as it was the resolution of a sub‑committee of only seven members out of an association of 22 members. The High Court then considered whether if the resolution could not be acted upon there was any evidence to support the finding that the petitioner in that case was a tout and in that connection considered the definition under section 3 of the Legal Practitioners Act and as it was found that the order complained of did not indicate that there was any evidence to the effect that the petitioner either received remuneration from any legal practitioner for his employment or made any such proposal, the order was set aside with a direction that the case may be considered on the evidence which was alleged to be on the record by the learned Government Advocate to justify the order. The contention of Mr. Huda that since the resolution did not indicate that the petitioner in that case came within the definition of a tout under section 3 of the Legal Practitioners Act the order was set aside cannot be accepted in view of what I have already said.

6. The next case relied upon by him is the case of Jounalogedda Sambayye (28 I C 918). This is a decision which was passed before the amendment of section 36 of the Legal Practitioners Act. The question that arose for consideration in that case was whether in a case where the petitioner admitted that he was a tout that admission could be the sole basis of the order under section 36 declaring him to be a tout. The order was set aside as that was the only evidence relied upon and the case was sent on remand to the lower Court for disposal according to law. This decision in my view, has no relevancy to the dispute in this case. It appears that there are two decisions which were passed after the amendment of section 36 referred to above which clearly indicate that a resolution of a Bar Association declaring a person to be a tout is by itself sufficient evidence of general repute within the meaning of section 36 and if a Court acts upon it such decision should not be interfered with by the High Court. The first case reported in A I R 1931 All.

315. The head‑note of the said case reads as follows: "Where there is a resolution of the Bar Association declaring a person to be a tout and the Courts act and give effect to the resolution and there is no evidence called in rebuttal which was believed by the lower Court as sweeping away the legal effect of the resolution the High Court will not in revision set aside the order declaring a person to be a tout." The other case is Harendra Narayan Chaki v. Secretary, Bar Association, Jamalpur, Mymensingh (56 Cal. 800), where Suhrawardy, J., who delivered the judgment considered the decision in the case of Ugam Prasad Pandey v. King Emperor and observed as follows :‑ "The Legal Practitioners Act, as it originally stood before its amendment in 1926, made it obligatory upon the pro secution to prove that the person accused receives re muneration from legal practitioners. Even at that time it has held in some cases that this proof may be supported by circumstances leading to the inference that the person accused was in the habit of receiving remuneration from legal practitioners. It was held by Walsh, J. in the matter of the petitions of Kalka Prasad I L R 1940 All. 153 that it is a reasonable and legitimate inference of fact that if a man is shown to spend the greater portion of his working hours in canvassing and introducing clients to members of the pro fession, he is not rendering gratuitous service such as a casual friend or acquaintance may do. The learned Judges in Ugam Prasad Pandey v. King Emperor, also did not lose sight of this principle and observed while remanding the case to the Court below that there might be evidence on record showing that remuneration moved from legal practitioner, or giving rise to a reasonable inference that it so moved. It is ordinarily difficult for the prosecution by evidence of the legal practitioners to prove moving of remuneration from them and in order to facilitate the proof of such conduct on the part of the person accused the Legislature thought it fit to amend section 36 by making evidence of a general repute admissible against the person accused."

7. In the present case the resolution clearly recites that Moulvi Munir Hossain made a definite charge that the petitioner was in the habit of engaging lawyers and used to get fees from out of their share of fees. It is further stated in the resolution that a number of Mukhtears were examined who definitely stated that the petitioner after obtaining a card on the recommendation of Mr. Serajuddin Ahmed also engaged other Mukhtears in connection with cases. The other charges regarding his behaviour, conduct and character and the fact that he has convicted in a case under section 395 of the Pakistan Penal Code which were accepted by the members of the Bar Association are, of course, not relevant for the purpose of this case. The resolution further states that from the consideration of the facts and circumstances proved against the petitioner and complaints received against him the members were of the unanimous opinion that Rajjab Ali alias Kalai is a notorious tout and he should at once be remove C The resolution therefore, has declared him to be a tout and it is evidence of general repute under section 36 in view of the Explanation to that section and if the Additional District Magistrate has acted upon this resolution I do not see any ground for interference. The result, therefore, is that this Rule is discharged. S. B./A. H. Rule discharged.