MULCHAND GULABCHAND Vs. MUKUND SHIVRAM BHIDE

JUDGEMENT

(1.) A dispute between the petitioner who is a member of the Bombay Provincial Co-operative Bank, Ltd. , Dhulia, and the" Society was referred to arbitration under Section 54 of the Co-operative Societies Act. As the amount involved in the dispute was very large, viz. Rs. 53,495-0-6, the petitioner wanted to appear before the arbitral tribunal through his advocate and the tribunal rejected the application of the petitioner as it was governed by Rule 36 of the rules framed under the Act. That rule is framed under Section 71, and Sub-section (1) of that section provides that the Provincial Government may, for the whole or any part of the presidency and for any society or class of societies, make rules to carry out the purposes of the Act, and Sub-section (2) provides:

(2.) NOW, it is contended by Mr. Kotwal that Rule 36 is 'ultra vires'. It is pointed out that the petitioner is considerably handicapped by having to appear before the arbitrators with-out the assistance of a lawyer and that the rule inasmuch as it totally prohibits representation of a party by a legal practitioner is unreasonable and therefore should be held 10 be bad by this Court. Now, the power which Courts have to consider the validity of statutory rules is very limited power. If a rule is within the ambit of the statute, then it cannot be successfully challenged on the ground that it is an unreasonable rule. As a matter of fact, Courts in India until our Constitution was enacted had no power at all to consider the reasonableness of any legislation. Reasonableness was a matter of policy which was left to the Legislature and a law could only be challenged on the ground of its being 'ultra vires' of the Legislature; but if it was within the competence of the Legislature, the law could not further be challenged on the ground that it was not a reasonable law. Similarly statutory rules formed part of the statute, and if they were within the scope of the statute and permitted by the statute to be framed, then they could not be challenged on the ground of unreasonableness. Mr. Kotwal has drawn our attention to various decisions of the English Courts where by-laws have been held to be bad on the ground that they were unreasonable. Now, there is a clear distinction between statutory rules and by-laws. By-laws are usually framed by corporations under their inherent powers in order to carry out the purposes of the corporation or they are framed by public authorities set up by Parliament, and as it is left to the corporations or the public authorities to frame these by-laws and carry out their purposes, the Courts have retained certain amount of control over the by-laws by considering their reasonableness. But statutory rules stand on an entirely different footing. Parliament or Legislature, instead of incorporating the rules into the statute itself, ordinarily authorises Government to carry out the details of the policy laid down by the Legislature by framing the rules under the statute, and once the rules are framed, they are incorporated in the statute itself and become part of the statute, and the rules must be governed by the same principles as the statute itself. And, therefore, although a by-law may be challenged on the ground that it is unreasonable, a statutory rule cannot be so challenged. It is not suggested by Mr. Kotwal that any fundamental right of the petitioner is affected by the statutory rule. The fundamental right that a citizen has is to be heard before a judicial tribunal and not to have any decision given against him or affecting his rights without his being permitted to show cause in his defence. But that right is vouchsafed to the petitioner. We do not think it can be seriously urged that it is a fundamental right of a citizen to be heard through his advocate or through his lawyer.

(3.) IT is also suggested that the rule does not fall within the ambit of Section 71 (2) (u) because that deals with rules of procedure, and it is contended that the right of a party to be represented by a lawyer is not a rule of procedure. Now, it is for the Courts or for tribunals to determine as a matter of procedure as to how parties should be represented and how they should present their case to the Court or the tribunal, and if a rule in laying down such a procedure provides that a party shall be heard in person and not by his advocate or lawyer, it is nothing more than a rule of procedure. If a tribunal were to say that a party shall not be heard at all, that would be a rule of substance, a deprivation of a substantial right and not a rule of procedure. But as the right of the party to be heard is safeguarded and only his right to be heard by a lawyer has been taken away, in our opinion Rule 36 is a rule of procedure not affecting substantive rights. If any authority is necessary, it is to be found in 'in RE GODINHO', 36 Bom LR 1 (FB ). As pointed out by Rangnekar J. :