O.P. Faizi v. Union of India & Ors

V. KAMESWAR RAO, J AUGUST 23, 2018 kks

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 23.08.2018 + W.P.(C) 3574/2014 O.P. FAIZI ..... Petitioner Through: Mr. S.N. Bhardwaj, Adv. versus UNION OF INDIA & ORS ..... Respondents Through: Ms. Suparna Srivastava, Standing Counsel for UOI. Mr. Ramesh Singh, Standing Counsel for GNCTD. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V. KAMESWAR RAO RAJENDRA MENON, CHIEF JUSTICE (ORAL): 1. Seeking a writ of mandamus, petitioner, a practising Advocate and an elected member of the Bar Council of Delhi has filed this petition in public interest seeking the following two reliefs: "(i) Issue a writ of Mandamus, or any other appropriate writ, direction or order thereby directing the Respondents Nos.1 and 2 to take a considered and conscious decision for amending Schedule-I to the Advocates' Welfare Fund Act, 2001, for upward revision and review of the quantum of payment to which Advocate Members of the Welfare Fund are entitled on cessation of practice; (ii) To issue a Writ of mandamus, or any other appropriate writ, direction or order thereby directing the Respondents Nos.1 and 2 to appropriate sufficient and reasonable amount of grant every year as their contribution to the Advocates' Welfare Fund under Section 3(d) of the Advocates' Welfare Fund Act, 2001, in the light of the fact that vide an order passed on 25.02.2011, the State of Tamil Nadu has decided to sanction annual grant upto Rs.2.50 crores for the Tamil Nadu Advocates' Welfare Fund;" 2. The case of the petitioner is that the Advocates' Welfare Fund Act, 2001 was enacted by the Central Government inter alia providing for constituting a welfare fund for the benefit of Advocates. It is a Central Act and by virtue of Section 38 the same applies to States in which there is no special or separate enactment by the concerned State Government with regard to the subject in question. Schedule II of the Central Act details the particulars of various State enactments already covering the field. As per the enactments indicated in Schedule II, the Government of NCT of Delhi has not been mentioned therein and therefore it can be safely construed as stated by the petitioner that there is no enactment on the subject in question by the Government of NCT of Delhi and consequently the Central Act of 2001 applies to the Government of NCT of Delhi. Section 2(b) of the Act of 2001 defines the Appropriate Government and according to this the State Government in the case of an Advocate admitted on the roll of the Bar Council of a particular State would be the Appropriate Government. Further, cessation of practice is defined in Section 2(c) to mean removal of an Advocate's name from the State roll by virtue of the eventualities contemplated under Section 26(A) of the Advocates Act, 1961 (hereafter referred to as 'the Act') happening. Section 26(A) of the Act further provides for removal from the roll by the State Bar Council the name of an Advocate who is dead or from whom a request is received to that effect. That being so, it is canvassed that cessation of practice includes not only removal from the rolls on account of death of the Advocate concerned but also eventually cessation of practice by an Advocate enrolled with the State Bar Council. 3. Section 3 of the Central Act, namely, the Advocates' Welfare Fund Act, 2001 mandates every Appropriate Government to make appropriation of funds in its budget for giving grant to the Advocates' Welfare Fund. 4. Further, the fund created under the Central Act is managed by the Trust Committee called the Advocates' Welfare and Trust Committee. For the present, the Additional Solicitor General of India is the Chairperson of the Committee and the Secretary of the Bar Council of India is the ex officio Secretary. 5. Section 21 of the Central Act deals with the issue of payment to be made on cessation of practice by an Advocate and for the sake of brevity the benefit to be granted under Section 21 of the Act as detailed therein reads as u