The Maharashtra Advocates Welfare Fund Act, 1981 Complete Act - Bare Act

An Act to provide for the constitution of an Advocates Welfare fund and utilization thereof for payment of certain retirement and other benefits to the Advocates in Maharashtra.

WHEREAS is expedient to provide for the constitution of an Advocates Welfare Fund and utilization thereof for the payment of certain retirement and other benefits to the Advocates in the State of Maharashtra and for matters connected therewith or incidental thereto ; It is hereby enacted in the Thirty-second Year of the Republic of India as follows :

CHAPTER I-PRELIMINARY

(1) This Act may be called the Maharashtra Advocates Welfare Fund Act, 1981.

(2) It extends to the whole of the State of Maharashtra.

(3) It shall come into force on such date, as the State Government may, by notification in the Official Gazette appoint.

In this Act, unless the context otherwise requires

(a) "Advocate" means a person whose name has been enrolled on the toll of Advocates prepared and maintained by the Bar Council of Maharashtra under section 17 of the Advocates Act and who is a member of a Bar Association;

(b) "Advocates Act" means the Advocates Act, 1961;

(c) "Advocates Welfare Fund" or "Fund" means the fund constituted and maintained under this Act;

(d) "Bar Association" means an association of Advocates attached to any Court or any Tribunal or such other authority or person as is legally authorised to take evidence or to adjudicate or decide any disputes in the State of Maharashtra and recognised by the Bar Council under section 14;

(e) "Bar Council" means the Bar Council of Maharashtra, constituted under section 3 of the Advocates Act ;

(f) "cessation of practice means removal of the name of an Advocate from the State roll maintained by the Bar Council on account of his retirement or death ;

(g) "dependents" means wife, husband, father, mother and unmarried minor children or such of them as exist ;

(h) "member of the Fund" means an Advocate admitted to the benefit of the Fund and continuing to be a member thereof under the provisions of this Art ;

(i) "prescribed" means prescribed by the Bar Council by regulations made under this Act ;

(j) "retirement" means stoppage of practice as an Advocate communicated to and recorded by the Bar Council ;

(k) "stamp" or "welfare fund stamp" means the stamp printed and distributed by the Bar Council under sections 18 ;

(l) "State" means the State of Maharashtra

(in) "suspension of practice" means voluntary suspension of practice as an Advocate or suspension by the Bar Council for misconduct under Advocates Act ;

(n) "Trustee Committee" or "Committee" means the committee established under section 4;

(o) "Wakalatnama" includes a memorandum of appearance or any other document by whatever name called, by which an Advocate is empowered to act appear or plead before any Court, or any Tribunal or such other authority or person as is referred to in section 14 legally authorised to take evidence or to adjudicate or decide any disputes.

CHAPTER II-CONSTITUTION OF ADVOCATES WELFARE FUND

(1) The State Government shall constitute a fund called the Advocates Welfare Fund.

(2) There shall be credited to the Fund

(a) an initial amount of Rs. 10,000 or such other higher amount as the Bar Council may credit to this Fund before the 31st December, 1981 ; and all amounts paid by the Bar Council annually from the year 1982 onwards under sub-section (3) ;

(b) any other contribution made by the Bar Council;

(c) any voluntary donation or contribution made to the Fund by the Bar Council of India, or any Bar Association or any Advocates ;

(d) all sums collected by way of sate of stamps under section 18 ;

(e) any grants which may be made by the State Government to the Fund under appropriation duly made in this behalf ~

(f) any grants, donations, gifts, benefactions received from other institutions or persons and credited to the Fund, from time to time ;

(g) any sum borrowed under section 12

(h) all sums received from the Life Insurance Corporation of India on the death of any member of the Fund under any Group Insurance Policy ;

(i) any profit or dividend received from the Life Insurance Corporation of India in respect of policies of Group Insurance of the members of the Fund ;

(j) all sums collected under section 16 by way of application fees and annual subscriptions and interest thereon ;

(k) any interest or dividend or other return on any investment made of any part of the Fund.

(3) The Bar Council shall pay to the Fund annually an amount at such rate not exceeding 20 per cent of the enrolment

CHAPTER III-ESTABLISHMENT OF TRUSTEE COMMITTEE AND VESTING OF WELFARE FUND IN THAT COMMITTEE

(1) The State Government shall, by notification in the Official Gazette, establish, with effect from such date as may be specified therein, a Committee to be called the Maharashtra Advocates Welfare Fund Trustee Committee.

(2) The Trustee Committee shall be a body corporate having perpetual succession and a common seal with power to acquire, hold and dispose of property and to contract and shall by the said name sue and be sued.

(3) The Trustee Committee shall consist of the following members, namely;

(a) the Advocate General of Maharashtra, who shall be the Chairman of the Trustee Committee, ex officio ;

(b) the Secretary to Government, Law and Judiciary Department of the Government of Maharashtra, ex officio ;

(c) three members nominated by the State Government ;

(d) two members of the Bar Council Dominated by the Bar Council ;

(e) the accountant of the Bar Council, who shall be the treasurer of the Trustee Committee, ex officio ; and

(f) the Secretary of the Bar Council, who shall be the Secretary of the Trustee Committee, ex officio

(4) A member nominated by the State Government under clause (c) of sub-section (3) shall hold office for a term of four years, unless the State Government terminates his nomination earlier or he is removed under sub-section (2) of section 5 or he resigns hi, membership and his resignation is accepted by the State Government under subsection (1) of section 6.

(5) A member nominated by the Bar Council under clause (d) of sub-section (3) shall hold office for a term of four years or for the duration of his membership in the Bar Council, whichever is less, antes, he is removed under subsection (2) of' section 5 or he resigns his membership and his resignation is accepted by the Bar Council under sub-section (1) of section 6.

(1) A member nominated under clause (c) or clause (d) of sub-section (3) of section 4 shall be disqualified to be a member of the Trustee Committee, if he (a) becomes of unsound mind ; or

(b) is adjudged insolvent ; or

(c) is absent without leave of the Trustee Committee for more than three consecutive meetings of the Committee or

(d) is a defaulter to the Fund (in case he is a member of the Fund) or has committed a breach of trust; or

(e) is convicted by a criminal court for an offence involving moral turpitude, unless such conviction has been set aside.

(2) The State Government may remove any member who is or has become disqualified under sub-section (1) from membership of the Trustee Committee:

Provided that, no order removing any member shall be passed unless that member and the Bar Council in the case of a member nominated by it have been given an opportunity of being heard:

Provided further that, nothing in this section shall apply where the State Government terminates the membership of a member nominated by it under sub-section (4) of section 4, on the ground other than incurring any of the disqualification and removal under this sub-section.

(1) Any member nominated under clause (c) or clause (d) of sub-section (3) of section 4 may resign his office by giving one month's notice in writing to the State Government or the Bar Council, as the case may be, and on such resignation being accepted by the State Government or the Bar Council, shall be deemed to have vacated his office:

Provided that, the Bar Council shall consult the State Government before accepting the resignation of a member nominated by it.

(2) A casual vacancy in the office of a member nominated under clause (c) or clause (d) of subsection (3) of section 4 occurring on account of death, resignation, termination or removal of a member may be filled up, as soon as conveniently may be, by nomination of a person thereto by the State Government or, the Bar Council, as the case may be, and a person so nominated shall hold office so long as the member in whose place he is nominated would have held it, if the vacancy had not occurred.

(1) During any vacancy in a Trustee Committee the continuing members may act as if no vacancy had occurred.

(2) The Trustee Committee shall have power to act, notwithstanding any vacancy in the membership or any defect in the constitution thereof, or any defect or irregularity in the nomination of any person as a member thereof, or any defect or irregularity in any act done or proceeding taken under this Apt or the regulations made thereunder not affecting the merits of the case; and such proceedings of the Committee shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled to do so sat or voted or otherwise took part in the proceedings or that some defect or irregularity as aforesaid existed.

(1) The Trustee Committee shall meet, at least once in three calendar months or more often if found necessary to transact business under this Act or the regulations made thereunder,

(2) Three members of the Trustee Committee shall form the quorum for a meeting of the Committee.

(3) The Chairman or, in his absence, a member elected, shall preside over a meeting of the Trustee Committee.

(4) Any matter coming up before a meeting of the Trustee-Committee shall be decided by a majority of the members present and voting at the meeting and, in the case of an equality of votes, the Chairman or the member presiding over the meeting shall have a casting vote.

The non-official members of the Trustee Committee shall be eligible to get such travelling allowance and daily allowance as are admissible to the members of the Bar Council:

Provided that, if a member of the Committee is a Member of the Maharashtra Legislative Assembly or Maharashtra Legislative Council or a Member of Parliament the allowances payable to such member shall be the travelling and daily allowances or such other allowances which are payable to him as a Member of the State Legislature or of Parliament, is the case may be, for the purpose of meeting the personal expenditure in attending the meeting of the State Legislature or Parliament or its Committees.

The Fund shall vest in, and be held and applied by, the Trustee Committee, subject to the provisions, and for the purposes, of this Act.

(1) The Trustee Committee shall administer the Fund.

(2) In the administration of the Fund, the Trustee Committee shall, subject to the provisions of this Act and the regulations made thereunder,

(a) hold the amounts and assets belonging to the Fund in trust;

(b) receive applications for admission or readmission to the Fund, and dispose of such applications within ninety days from the date Of receipt thereof;

(c) receive applications from the members of the Fund, their nominees or legal representatives, as the case may be, for payment out of the Fund, conduct such enquiry as it deems necessary for the disposal of such applications and dispose of the applications within five months from the date of receipt thereof;

(d) record in the minute book of the Trustee Committee, its decisions on the applications :

(e) pay to the applicants amounts at the rates specified in the Schedule ;

(f)

(g) send such periodical and annual reports as may be prescribed to the State Government and the Bar Council ;

(h) communicate to the applicants by registered post with acknowledgement due the decisions of the Trustee Committee in respect of applications for admission or readmission to the Fund or claims to the benefit of the Fund.

(i) do such other acts as are, or may be, required to be done by it under this Act and the regulations made thereunder.

(1) The Trustee Committee may, with the recommendation of the Bar Council and the prior approval of the State Government, borrow, from time to time, any sum required for carrying out the purposes of the Act.

(2) The Trustee Committee shall deposit all moneys and receipts forming part of the Fund in any scheduled bank or invest the same in the units issued by the Unit Trust of India, the National Post Office Savings Certificates or any other Government Security or in loans to any corporation owned or controlled by the Central Government or the State Government or in loans floated by the Central Government or the State Government or in any other manner as the Bar Council may, from time to time, direct with

(3) All amounts due and payable under this Act and all expenditure relating to the management and administration of the Fund shall be paid out of the Fund.

(4) The accounts of the Trustee Committee shall be audited annually by the Chief Auditor, Local Fund Accounts or any other person empowered by the State Government to perform the functions of an auditor under the Bombay Local Fund Audit Act, 1930, as if the Fund were a Local Fund and the Trustee Committee were a Local authority within the meaning of these expressions in the said Act

(5) The accounts of the Trustee Committee, as certified by the auditor, together with the audit report thereon shall be forwarded to the Bar Council by the Trustee Committee and the Bar Council may issue such directions as it deems fit to the Trustee Committee in respect thereof.

(6) The Trustee Committee shall comply with the report of the auditor and the directions issued by the Bar Council under sub-section (5).

The Secretary of the Trustee Committee shall

(a) be the chief executive authority of the Trustee Committee and responsible for carrying out its decisions ;

(b) represent tile Trustee Committee in all suits and proceedings for and against the Committee ;

(c) authenticate by his signature all decisions and instructions of the Trustee Committee ;

(d) operate the bank accounts of the Trustee Committee jointly with the treasurer;

(e) convene meetings of the Trustee Committee and prepare their minutes;

(f) attend the meetings of the Trustee Committee with all the necessary records and information;

(g) maintain such forms, registers and other records as may be prescribed from time to time and do all correspondence relating to the Trustee Committee:

(h) inspect and verify periodically the accounts and registers of the Bar Associations regarding the stamps;

(i) prepare an annual statement of business transacted by the trustee Committee during each financial year;

(j) make appointments of the officers and servants of the Trustee Committee as sanctioned by the Committee and have power to take disciplinary action against any such officer or servant;

(k) do such other acts as may be directed by the State Government, the Trustee Committee and the Bar Council.

CHAPTER IV-RECOGNITION AND REGISTRATION OF BAR ASSOCIATIONS

(1) All associations of Advocates known by any name functioning in any Court, or before any Tribunal, or before any other authority or person legally authorised to take evidence or to adjudicate or decide any disputes may, before a date to be notified or before such extended date as may be notified by the Bar Council in this behalf, apply to the Bar Council in such form as may be prescribed for recognition and registration. Any association of Advocates constituted after the date of commencement of this Act may, at any time thereafter likewise apply to the Bar Council for recognition and registration.

(2) Every application for recognition and registration shall be accompanied by the rules or bye-rules of the association, the names and addresses of the office-bearers of the association and an up-to-date list of the members of the association showing the name, address, age, date of enrolment and the ordinary place of practice of each member.

(3) The Bar Council may, after such enquiry as it deems necessary, recognise the association and issue a certificate of registration in such form as may be prescribed.

(4) The decision of the Bar Council regarding the recognition and registration of a Bar Association shall be final.

(1) Every Bar Association shall, on or before the 15th April every year, intimate to the Bar Council a list of its members as on the 31st March of that year.

(2) Every Bar Association shall intimate to the Bar Council

(a) any change of the office-bearers of the association within fifteen days from such change;

(b) any change in the membership, including admissions and readmissions, within thirty days of such change;

(c) the death, retirement or voluntary suspension of practice of any of its members within thirty days from the date of occurrence thereof; and

(d) such other matters as may be prescribed or required by the Bar Council from time to time.

CHAPTER V-MEMBERSHIP IN THE FUND AND PAYMENT THEREFROM

(1) Every Advocate practising before any Court, or any Tribunal, or any other authority or person legally authorised to take evidence or to adjudicate or decide any disputes in the State and being a member of a Bar Association recognised by the Bar Council under section 14 may apply to the Trustee Committee for admission as i member of the Fund, in such form as may be prescribed.

(2) On receipt of an application under sub-section (1), the Trustee Committee shall make such enquiry as it deems fit and either admit the applicant to the Fund or for reasons to be recorded in writing reject the application:

Provided that, no order rejecting an application shall be passed unless the applicant has been given an opportunity of being beard.

(3) An application fee shall

(i) in the case of an applicant who, on the date of application has practised for a period of twelve years or more, be two hundred rupees ; and

(ii) in the case of an applicant who, on the date of application has practised for a period of less than twelve years, be one hundred rupees; and such application fee shall be payable in the course of one year in four equal installments, in such manner as may be prescribed, the first instalment being a payable along with the application:

Provided

(4) In the event of the rejection of any application the first installment of the admission fees paid along with the application shall be refunded to the applicant.

(5) Every member shall pay an annual subscription to the Fund on or before the 31st December of every year at the following rates, namely

Where the standing of the Advocate at the Bar on the last 31st December is five years or more, but less than fifteen years.=50 Rupees

Where the standing of the Advocate at the Bar on the last 31st December is fifteen years or more=One hundred rupees.

(6) A member shall be entitled to pay the subscription under sub-section (5) in two equal half yearly instalments at his option, the first instalment being payable on or before the 30th June and the second instalment being payable on or before the 31st December, every year.

(7) Any member who fails to remit the annual subscription or half yearly instalments, as the case may be, on or Were due dates mentioned in sub-section (5) or sub-section (6) shall after giving him one month's notice in writing be liable to be removed by the Trustee Committee from the membership of the Fund.

(8) A person removed from the membership of the Fund under sub-section (7) shall be readmitted to the Fund on payment of the arrears with interest at twelve per cent per annum within six months from the date of removal.

(9) Every member shall, at the time of admission to the membership of the Fund, make a nomination conferring on one or more persons the right to receive the amount which may be due to him from the Fund in the event of his death before the amount has been paid to him.

(10) If a member nominates more than one person under sub-section (9), he shall specify in the nomination tile amount or share payable to each of the nominees in such manner as to cover the whole of the amount that may be due to him.

(11) A member may at any time cancel nomination by sending a notice in writing to the Trustee Committee, provided that a member shall along with such notice send a fresh nomination.

(12) Every member who voluntarily suspends practice or retires shall, within Fifteen days of such suspension or retirement, intimate that fact to the Trustee Committee and if any member fails to do so without sufficient reasons the Trustee Committee may reduce, in accordance with such principles as may be prescribed, the amount due to that member.

(1) A member of the Fund shall, on cessation of practice be entitled to receive from out of the Fund an amount at the rate specified in the Schedule:

Provided that, where under sub-section (4), for the remaining fraction of years, every year of practice at the Bar is computed as three months of practice, a member shall be entitled to receive an additional amount of two hundred and fifty rupees for each such period of three months so computed.

(2) In the event of death of a member, the amount shall be paid to his nominee, or, where there is no nominee to his legal heirs on production of a succession certificate.

(3) A member of the Fund may opt retirement benefits at any time after five years of his admission as a member of the Fund, but he shall be eligible for readmission to the Fund as a new member subject to such conditions as may be prescribed:

Provided that, a member suffering from permanent disablement shall be allowed to retire within five years of his admission to the Fund.

(4) For calculating the period of years standing at the Bar referred to in the Schedule for the purpose of payment under this Act every four years of practice at the Bar, if any, before the admission of a member to the Fund shall be computed as one year of practice and for the remaining fraction of years every year of practice shall be computed as three months of practice and the total of such completed years so computed shall be added on to the number of years of practice after such admission.

(5) In the case of a member who dies within five years of his admission to the Fund, his nominee or legal heir, as the case may be, shall be eligible to get an amount at the rate of one thousand rupees per year of practice.

(6) An application for payment from the Fund shall be preferred to the Trustee Committee in such form as may be prescribed.

(7) In the case of a member who voluntarily ceases to be in practice (otherwise than on account of his death) within five years of his admission to the Fund, he shall be entitled to get the annual subscription paid by him under sub-section (5) of section 16 refunded to him on his making an application therefor in such form as may be prescribed.

(8) An Application received under sub-section (6) or (7) shall be disposed of by the Trustee Committee after such enquiry as it deems necessary.

CHAPTER "VI PRINTING AND DISTRIBUTION OF STAMPS BY BAR COUNCIL

(1) The Bar Council shall cause to be printed and distributed welfare fund stamps each of the value of two rupees with the Bar Council Emblem and its value inscribed thereon.

(2) The stamps shall be of the size I"X2" and be sold only to the members of the Fund.

(3) The custody of the stamps shall be with the Bar Council.

(4) The Bar Council shall control the distributions and sale of the stamps through The Bar Associations.

(5) The Bar Council and the Bar Associations shall keep proper accounts of the stamps in such form and in such manner as may be prescribed.

(6) The Bar Associations shall purchase the stamps from the Bar Council after paying the value thereof less ten pen cent, of such value towards incidental expenses.

(7) The Bar Council shall, after deducting from the sale proceeds of stamps the actual Cost Of printing and distribution of stamps, pay the amount realised by sale of stamps to the Trustee Committee within 15 days after the end of every quarter.

CHAPTER-VII Miscellaneous

(1) Every member of the Fund shall affix one A welfare fund stamp referred to in subsection (1) of section 18 an every Wakalatnama filed by him and no Wakalatnama shall be filed before or received by any Court, Tribunal or other authority or person referred to in section 14 unless it is stamped.

(2) The value of the stamp shall neither be cost in the case nor be collected in any event from the client,

(3) Any contravention of the provisions of sub-section (2) by any member shall disentitle him to the benefits of the Fund and the Trustee Committee shall report such instances to the Bar Council for appropriate action.

Every stamp affixed on Wakalatnama under Sub-section(l) of section 19 filed before any Court, Tribunal or any other authority or person shall be cancelled in the manner provided in section 42 of the Bombay Court-fees Act, 1959

Nothing contained in sections 19 and 20 shall apply in the cases of

(a) the Advocates appointed by the Court

(b) the Advocates appearing in legal aid matters for parties to whom legal aid has been rendered by the Bar Council or its Legal Aid Committees or by the Central Government or the State Government ;

(c) the Advocates appointed for the accused by the Courts to help the Court as amicus curiae or the Advocate otherwise appearing as amicus curiae ;

(d) the Advocates appearing on behalf of the Bar Council or any Bar Association,

(1) An appeal against any decision of the Trustee Committee shall lie to the Bar Council.

(2) The appeal shall be in the prescribed form and shall be accompanied by

(a) the order appealed against ; and

(b) a fee of one hundred rupees which shall not be refunded.

(3) The appeal shall be filed within thirty days from the date of receipt of the order appealed against.

(4) The decision of the Bar Council on the appeal shall be final.

(l) The Trustee Committee may, for the welfare of the members of the Fund,

(a) obtain from the life Insurance Corporation of India policies of Group Insurance for the

(b) provide for medical and educational facilities for the members of the Fund and their dependents ; and

(c) provide

(d) provide for such other benefits and amenities as may be prescribed.

(2) Notwithstanding

(1) Notwithstanding anything contained in any other law for the time being in force, the interest of any member in the f und or the right of a member or his nominee or legal heirs to receive any amount from the Fund, shall not be assigned, alienated, or charged and shall not be liable to attachment under any decree or order of any Court, Tribunal or other authority or person.

(2) No creditor shall be entitled to proceed against the Fund or the interest therein of any member or his nominee or legal heirs

Explanation: - For the purposes of his section, "creditor" includes the State, or an official assignee or receiver appointed under the Presidency-towns Insolvency Act, 1909, the Provincial Insolvency Act, 1920, or any other law for the time being in force.

(1) No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or any regulations made thereunder.

(2) No suit or other legal proceeding shall lie against the Trustee Committee or the Bar Council for any damage caused by anything which is in good faith done or intended to be done in pursuance of this Act or any regulations made thereunder.

No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Trustee Committee or the Bar Council.

The Trustee Committee and the Bar Council shall, for the purposes of any enquiry under this Act, have the same powers as are vested in a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of the following matters, namely:

(a) enforcing the attendance of any person for examining him on oath ;

(b) requiring the discovery and production of documents ;

(c) receiving evidence on affidavit

(d) issuing commissions for the examination of witnesses

The Bar Council may, with the previous approval of the State Government, by notification in the Official Gazette, make regulations for the purpose of carrying into effect the provisions of this Act and for matters which are to be or may be prescribed under the Act.