Bombay High Court Chaitram Chindhuji Wasnik vs State Of Maharashtra And Ors. on 28 December, 2006Equivalent citations: 2007 (3) MhLj 264 Author: V Daga Bench: V Daga, A Chaudhari
V.C. Daga, J.
1. The petitioner, the document-Bond writer has filed this petition challenging the direction contained in circular dated 21-6-2001 issued by the Inspector General and Stamp Controller, Maharashtra State, Pune; wherein the directions are issued not to grant or renew licence to the document-Bond writer, who has completed sixty years of his age. Factual Aspects:
2. Undisputed factual matrix is that the petitioner was granted licence to practice as a document-Bond writer in the year 1982 for the area of Tahsil Sakoli, District : Bhandara. The said licence was renewed from time to time right up to the year 2002.
3. The petitioner on 11-12-2002 applied for renewal of his licence as document writer for the year 2003-04. While accepting the application for renewal, the District Registrar, Bhandara called upon the petitioner to submit certificate showing his date of birth. Accordingly, the birth certificate was produced by the petitioner which revealed that the petitioner had already completed age of sixty years on the date of application seeking renewal of his licence.
4. The petitioner was given a copy of the circular dated 21-6-2001 directing cancellation of licence issued to the petition-Bond writer who has completed sixty years of his age. The petitioner, apprehending rejection of his application for renewal, filed this petition under Article 226 of the Constitution of India challenging the direction contained in the said circular debarring or disqualifying the person above the age of sixty years from practicing as a document-Bond writer. This Court, vide order dated 12-12-2003 while issuing rule, granted interim relief directing renewal of licence of the petitioner subject to the result of this petition.
5. Mr. Jaiswal, learned Counsel appearing for the petitioner urged that the respondents have no power to fix the age limit of the document-Bond writers. In his submission, there is no provision either under the Registration Act, 1908 or in the Maharashtra Registration Manual Part I and II to prevent the document writer from practicing beyond the age of sixty years. He further urged that circular preventing document writer to practice beyond the age of 60 years is violative of Article 19(1)(g) of the Constitution of India. He has placed reliance on the judgment of the Apex Court in the case of B. P. Sharma v. Union of India and Ors., in support of his submission.
6. Mr. Mujumdar, learned A.G.P. appearing for the respondents submits that the circular is issued by the Inspector General and Stamp Controller, MS, Pune with the approval of the State Government in exercise of power conferred by Sub-section (4) of Section 69 of the Registration Act, 1908 (for short, the Act). He has also placed reliance on Appendix 6 of the Maharashtra Registration Manual Part-II in support of his submission. He further submits that the age criteria was prescribed with a view to create self-employment opportunities in favour of educated unemployed youths.
7. Mr. Mujumdar also submits that the similar issue was raised in Writ Petition No. 423 of 1996 before the Division Bench at Aurangabad of this Court in the case of Dattatraya Gopalrao Kulkarni v. Collector, Aurangabad and Ors.; wherein the petition was dismissed in the motion hearing holding that there was neither unreasonableness or nor vested right to practice in favour of the petitioner was created. Copy of the said order dated 1-8-1996 was placed before us for our perusal. He, thus, prayed for dismissal of the writ petition.
8. We propose to deal with the contention raised by Mr. Mujumdar that the petition involving identical question being Writ Petition No. 423 of 1996 had been dismissed by the Division Bench at Aurangabad vide its order dated 1-8-1996 and, therefore, this petition should also be dismissed for the same reasons.
9. We have perused the above order dated 1-8-1996. The said one line order appears to have been passed while dismissing the petition in motion hearing, reading as, “We do not see any unreasonableness. There is no vested right involved in the petitioner. Writ petition dismissed.” With due respect, we are of the considered view that the aforesaid order dated 1-8-1996 does not disclose reasons in support of the order. A decision which is not express and is not founded on reasons nor proceeds on consideration of the issue cannot be deemed to be a law declared to have a binding effect as held by Apex Court in the case of State of U.P. v. Synthetics Chemicals Ltd. . The contentions raised in the present petition were not subject matter of consideration. The said order can hardly be said to be precedent for deciding the present petition.
10. Even otherwise, in view of the subsequent judgment of the Supreme Court in the case of B.P. Sharma v. Union of India (supra), the question which needs consideration is, as to whether putting age restriction imposing ban on carrying on a private profession or some employment on attaining the certain age chosen by the State can be said to be a reasonable restriction in absence of any strong reasons therefor without fulfilling criteria of public interest.
11. The second question which needs consideration is, as to whether under Section 69 of the Act, the State Government has a power to issue circular prescribing condition that no licence shall be granted or renewed in favour of the petition/document/Bond writer who have crossed his age of 60 years or that licence of such person should be cancelled.
12. Having heard rival parties, it would be relevant to consider some of the provisions as indicated by the learned Counsel for the respondents so as to be able to understand the legal sanction behind the conditions laid and restrictions placed on the profession of petition/document/Bond writer. The Registration Act, 1908 is an Act to consolidate the enactments relating to the Registration of Documents. Our attention is drawn to Section 69 of the Act which reads as under:
Power of Inspector General to superintend registration offices and make rules. (1) The Inspector General shall exercise a general superintendence over all the registration offices in the territories under the State Government, and shall have power from time to time to make rules consistent with this Act–
(a) providing for the safe custody of books, papers and documents,
(aa) providing the manner in which and the safeguards subject to which the books may be kept in computer floppies or diskettes or in any other electronic form under Sub-section (1) of Section 16-A.
(b) declaring what language shall be deemed to be commonly used in each district.
(c) declaring what territorial divisions shall be recognised under Section 21;
(d) regulating the amount of fines imposed under Sections 25 and 34, respectively;
(e) regulating the exercise of the discretion reposed in the registering officer by Section 63;
(f) regulating the form in which registering officers are to make memoranda of documents ;
(g) regulating the authentication by Registrars and Sub-Registrars of the books kept in their respective offices under Section 51; and the manner of recopying such books or portions thereof;
(gg) regulating the manner in which the instruments referred to in Sub-section (2) of Section 88 may be presented for registration;
(ggg) regulating the procedure for transmitting documents for being photographed and the serial numbering, binding and preservation of the photographic prints and negatives, the manner of fixing the signature and seal of the Photo-Registrar at the end of a length of film, and the procedure generally in the Government Photo-Registry;
(h) declaring the particular to be contained in Indexes Nos. I, I-A, II, II-A, III and IV, respectively;
(i) declaring the holidays that shall be observed in the registration offices; and
(j) generally, regulating the proceedings of the Registrars and Sub-Registrars.
(2) The rules so made shall be submitted to the [State Government] for approval, and, after they have been approved, they shall be published in the [Official Gazette], and on publication shall have effect as if enacted in this Act.
13. On the basis of the above provision, it is sought to be argued on behalf of the respondents that by statutory rules framed under the provisions of the Act, the profession of such persons who may take the job of petition/bond/document writer for monetary consideration can be regulated by laying down conditions of a licence for the purpose by the Inspector General and State Controller of the State of Maharashtra. Having examined the text of Section 69 of the Act, it empowers to the Inspector General to superintend registration offices and make rules, to fix the age of man who carry out the profession of petition/bond/document writer. It may be noted that by implication, section provides a authority to frame rules to grant licence to practice as a petition/bond/document writer. The whole reading of Section 69 leads only to the conclusion that the nature of the power is only regulatory. It does not in any manner lead to creation of relationship of master and servant between the State and the approved licensee petition/bond/document writer; nor even to any relationship to the contractual in any nature.
14. So far as the fixation of age beyond which it is prohibited in the impugned circular that the licence shall not be renewed in favour of the petition/bond writer who has crossed the age of sixty years of his age does not seem to be within the scope of the provisions indicated above. The document/Bond/petition writers profess their independent profession. Since they come in touch and have to deal with the members of the public, the State of Maharashtra through the Inspector General of Stamp Controller considered it necessary to regulate conditions of their profession or terms and conditions for grant of licence, e.g. the educational qualification, fee which would be chargeable by them, the way they will conduct their profession and many do’s and don’ts have been provided. Since it is regulatory in nature and they have to conform to certain norms laid necessarily suitable for the professions, which as a matter of fact is for the benefit and to protect the interest of the citizens seeking registration of the documents. There is no relationship of master and servant between them nor there exists any contractual relationship. No benefit is conferred nor is any emolument, etc. payable to the document/bond/petition writer by the Government. No kind of protection nor any other benefit is provided to them by the Government. This is as much a matter of self-employment and private profession, as many others. In the absence of any such relationship as that of master and servant or contractual in nature, ordinarily there would be no good reason for the State to completely prohibit as its choice to carry on a private profession or self-employment, on attaining a certain age.
15. A judicial note of the facts can be taken that lawyers and doctors are allowed to practice even beyond the age of 60 years. It cannot be said that the doctors and lawyers do not need to have energy, stamina and strength to practice their profession, though may be it is required in lesser degree. In the matter of private person who is self employment of a person equipped in a particular discipline or profession; it is better left to the client or consumer of the related service to choose as to whose services they may like to avail of. Besides doctors and lawyers, there are innumerable categories of persons who are self-employed earning their livelihood exerting themselves physically and manually also. It does not mean that they can be subjected to total curtailment of their right to earn their livelihood at any given stage.
16. We fail to understand the logic that if licence of petition/bond/ document writer who have reached the age of 60 years has not renewed then it will provide self employment opportunity to the younger generation. As a matter of fact, persons who cross the age of 60 years will be better equipped and will be of more assistance to their clients because of their vast experience. At times it is quite possible that a more mature and older document/bond/petition writer may be more informative and may draft the document in a better way. It goes without saying that simultaneously young person can also be introduced in the profession by giving them licence to practice as document/petition writer. Hence, in private professions it is better left to the consumer of the service to make his own choice whatever be the profession.
17. We have also examined text of Appendix-6 appended to Maharashtra Registration Manual Part-II. We could not notice any provision fixing of age limit or prohibiting the petition/document/bond writer to practice beyond the age of sixty years. At the same time even Section 69 nowhere provides for any such authorisation in favour of the State that no licence should be renewed in favour of petition/document/bond writer who has crossed his age of 60 years. Thus, direction issued in the impugned circular to the extent it is changed does not seem to be within the scope of the provisions under the provisions as indicated above.
18. In the case of B. P. Sharma v. Union of India and Ors. (cited supra) the Apex Court while dealing with the challenge based on Article 19(1)(g) held as under:
14. The right which is guaranteed to all citizens under Article 19(1)(g) of the Constitution of India is to practise any profession or to carry on any calling, trade or business. Clause (6) of Article 19, however, places a restriction that nothing would prevent the State from making any law imposing reasonable restrictions in exercise of the right in the interest of the general public. Sub-clauses (i) and (ii) further provide that professional and technical qualifications, as may be thought necessary for practising the profession, can always be prescribed and exclusion of carrying on of any calling, trade or business etc. is also envisaged which is also carried on by a State or by a corporation owned and controlled by the State. Subject to the above noted restrictions the valuable right as provided under Article 19(1)(g) is available to all the citizens who are free to choose any trade, business, calling or profession etc. It obviously, also includes the manner and terms in which they will carry on their profession, but again subject to reasonable restrictions which may be thought necessary by the State in the interest of the general public. On the other hand, once a citizen voluntarily chooses to join government service or any other service, he would obviously be free to do so but he would be bound by the terms and conditions of the service as may be provided under the law or by contract of service.
The freedom under Article 19(1)(g) can also be completely curtailed in certain circumstances e.g. where the profession chosen is so inherently pernicious that nobody can be considered to have a fundamental right to carry on such business, trade, calling or profession like gambling, betting or dealing in intoxicants or an activity injurious to public health and morals. It may be useful to refer to a few decisions of this Court on the point at this stage viz. in Saghir Ahmad v. State of U.P. and J. K. Industries Ltd. v. Chief Inspector of Factories and Boilers. The main purpose of restricting the exercise of the right is to strike a balance between individual freedom and social control. The freedom, however, as guaranteed under Article 19(1)(g) is valuable and cannot be violated on grounds which are not established to be in public interest or just on the basis that it is permissible to do so. For placing a complete prohibition on any professional activity, there must exist some strong reason for the same with a view to attain some legitimate object and in case of non-imposition of such prohibition, it may result in jeopardizing or seriously affecting the interest of the people in general. If it is not so, it would not be a reasonable restriction if placed on exercise of the right guaranteed under Article 19(1)(g). The phrase “in the interest of the general public” has come to be considered in several decisions and it has been held that it would comprise within its ambit interests like public health and morals (refer to State of Maharashtra v. Himmatbhai Narbheram Rao), economic stability (State of Assam v. Sristikar Dowerah), stability of the country, equitable distribution of essential commodities at fair prices (Union of India v. Bhanamal Gulzarimal Ltd.) for maintenance of purity in public life, prevention of fraud and similar considerations. On consideration of a catena of decisions on the point, this Court, in a case reported in M.R.F. Ltd. v. Inspector, Kerala Govt. has laid down certain tests on the basis of which reasonableness of the restriction imposed on exercise of the right guaranteed under Article 19(1)(g) can be tested. Speaking for the Court, Saghir Ahmad, J. (as he then was), laid such considerations as follows : (SCC p.233, para 13)
(1) While considering the reasonableness of the restrictions, the court has to keep in mind the directive principles of the State policy.
(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.
(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.
(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Clause (6) of Article 19.
(5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (See State of U.P. v. Kaushailiya.)
(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, O.K. Ghosh v. E.X. Joseph.).
19. Thus, it is not a restriction of the age in the light of law laid down in the preceding paragraphs. The clause contained in the impugned circular issued by the respondents on the face of it which reads the age of 60 years to be a reasonable restriction but it amounts to total prohibition upon carrying on one’s profession.
20. The Supreme Court in the aforesaid judgment has observed as under:
It is true, even total prohibition upon carrying on one’s profession can be imposed by way of regulatory measure, but for doing so condition of public interest must be fulfilled. It is not to be taken lightly; it must pass through a stringent test. There are a number of callings and professions in which people are engaged even after attaining the age of 60 or 65 years and in pursuing such self-employment and private profession they find means of their livelihood, without causing any harm to public interest. Such is the case in hand too.
It is always better, nay, necessary too that the freedoms as guaranteed under the Constitution should be allowed to be enjoyed by the citizens to the fullest possible extent without putting shackles of avoidable cobweb of rules and regulations putting check and restrictions in the enjoyment of such freedoms. We find no reasonable ground to put a condition of age bar, where-after a guide may not be allowed to continue his profession as it does not fall in any of such categories which may justify placing such restrictions completely debarring him to act as guide. Curtailment of freedom must have some strong reasons and real nexus with the purpose sought to be achieved. It would not be imposed merely because it is permissible for the State to do so.
21. Thus, considering the above law laid down by the Apex Court and absence of power to debar a person from practicing as bond writer beyond the age of 60 years; the offending part of the circular dated 21-6-2001 issued by respondent No. 1 is liable to be quashed and set aside holding it to be bad and illegal and violative of Article 19(1)(g) of the Constitution of India.
22. In the result, petition is allowed. Rule is made absolute in terms of prayer Clause (A). No order as to the costs.