Shri. Suresh Shamrao Kamble vs State Of Maharashtra
2017 Latest Caselaw 3081 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION
                     WRIT PETITION NO.7143 OF 2013


   Suresh Shamrao Kamble                         ...Petitioner  
   vs.
   State of Maharashtra & Ors.                   ...Respondents


   Mr.Sugandh B. Deshmukh a/w Mr.Ajinky Udane for the 
   Petitioner 
   Mr.P.G.Sawant, AGP for the respondent Nos.1 to 7. 


   CORAM : A.S.OKA, & A.A.SAYED, JJ.

DATE ON WHICH JUDGMENT IS RESERVED: 27TH OCTOBER 2016 DATE ON WHICH JUDGMENT IS PRONOUNCED : 13TH JUNE,2017

JUDGMENT: (PER A.S.OKA,J.)

1 The petitioner is a member of the Bar and was the District Government Pleader for Kolhapur District. He has filed this petition under Article 226 of the Constitution of India seeking a writ of mandamus directing the respondents to pay his professional charges as per Rule 96 of the Maharashtra Law Officers (appointment, conditions of service and remunerations) Rules, 1984 (for short `the said Rules') in respect of the professional services rendered by him in four execution applications viz; Special Darkhast Nos.19 of 2004, 10 of 2004, 26 of 2007, 11 of 2008 and 19 of 2008. He was appointed to represent the State Government in the said execution applications. We kept the matter pending for Judgment as we expected the State Government to adopt a fair approach and to come out

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with a solution. As the State Government has not done that, we are proceeding to decide this petition on merits.

2 The learned counsel for the petitioner invited the attention of the Court to the letters at Exhibit-A showing that the petitioner was appointed to represent the State Government in the proceedings subject matter of this writ petition.

3 The learned counsel for the petitioner has taken us through the correspondence annexed to the petition. He relied upon the letter dated 3 rd August 2009 issued by the Deputy Executive Engineer to the Superintending Engineer, Konkan Patbandhare Mandal, Ratnagiri stating that the scrutiny of the bills of the professional charges payable to the petitioner is completed and that the petitioner is entitled to fees of Rs.10,41,818/- for professional services in Special Darkhast Nos.10 of 2004 and 26 of 2007. He pointed out that along with the letter dated 24 th November 2009, the Executive Engineer forwarded the bills to the Secretary of the Water Resources Department of the Government of Maharashtra demanding grant of Rs.12,00,000/- for the release of the bill amount. He invited our attention to the correspondence made by the Deputy Executive Engineer for sanction of the bill amounting to Rs.85,000/- towards professional charges. He pointed out the correspondence made subsequently and in particular the letter dated 3rd May 2011 issued by the Assistant Superintending Engineer, Ratnagiri to the

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petitioner stating that the delay in making payment to the petitioner was due to the fact in the financial year 2010-2011, budgetary provision of only Rs.10,000/- was made. He stated that the fees will be paid as soon as the grant is available and the remuneration is fixed by the Law and Judiciary Department. He also invited our attention to the communication issued by the State Government on 11 th May 2011 to the Chief Engineer of Konkan Division. It was pointed out that the GR dated 21 st February 1992 was issued in respect of the fees payable to the Advocates who appeared in the arbitration proceedings. The Government recorded that as the petitioner appeared in execution proceedings before the Civil Court filed for execution of the Awards, the fees payable as per the said GR are not payable to the petitioner. It was stated that the Rule 96 of the said Rules will not be applicable and the fees payable will be as per the Rule 138 of the said Rules. The learned counsel for the petitioner pointed out that Rule 96 is applicable to the arbitration cases. He submitted that the Execution Applications arose out of the arbitral Award. He submitted that the case of the petitioner will be governed by Rule 96 and in the present case, Rule 138 will not apply. He invited our attention to the fact that by a separate GR dated 15 th May 1996, the State Government was paying professional charges as per Rule 96 to other members of the Bar who were similarly placed. He submitted that the petitioner cannot be treated differently from the said members of the Bar. He submitted that no reply has been

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filed by the State Government. He urged that from the correspondence made by the Officers of the Irrigation Department the copies of which have been annexed as Exhibit-A, it is very clear that between the years 2004 to 2009, the petitioner was never informed that he will not be entitled to fees in accordance with Rule 96. He urged that if the petitioner would have been given the said information earlier, he would not have accepted the request to appear in the said execution proceedings on behalf of the State Government. He also invited our attention to the orders passed in some of the execution applications by the Executing Court for showing that the petitioner exercised his best professional skill and ensured that the State Exchequer does not suffer. He submitted that after having efficiently discharged his duties, now the State Government cannot raise hypothetical contentions and defeat the legitimate claim of the petitioner. The learned AGP for the State Government would urge that Rule 96 is not applicable to the case of the petitioner and therefore, a writ as prayed for cannot be issued. The learned counsel for the petitioner relied upon the Judgment and Order dated 9th May 2014 in Writ Petition No.11417 of 2012 filed by the petitioner. He pointed out that for non payment of fees by the State Government, the petitioner was required to approach this Court and by a Judgment and order dated 9 th May 2014, the said petition was allowed.

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 4        We   have   given   careful   consideration   to   the 

submissions. The main controversy revolves around the issue of applicability of Rule 96 or Rule 138 of the said Rules. Rule 96 reads thus:

"96 Cases not falling under the Rules applicable to Law Officers (1) The following types of cases do not fall under the Maharashtra Law Officers (Amendment, Conditions of Service and Remuneration) Rules,1984, namely :-

(a) All cases under the Industrial and Labour Laws;

(b) cases under the Payment of Wages Act,1936;

(c)cases under the Minimum Wages Act,1948;

(d) cases under the Workmen's Compensation Act,1923

(e) Arbitration cases;

(f) Election Petitions;

(g) cases under the Bombay Public Trusts Act,1950;

(h) cases before the Motor Accident Claims Tribunal

(i) cases before the Sales Tax Tribunal.

In such cases, neither the sanction of Government in the Law and Judiciary Department for the engagement of any Law Officers for the institution or defence of the cases is necessary nor their fees and law

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charges are debitable to the grants at the disposal of the Law and Judiciary Department. If the administrative departments and the Government officers under their control desire to engage the services of the Law Officers for the institution or defence of cases falling under the aforesaid categories, they may do so. In such cases, fees and law charges of the Law Officers are payable directly by the administrative departments concerned.

(2) The courts like Labour Courts, Industrial Courts, Revenue Courts, Courts of Rent Collector, Co-operative Courts or Tribunals such as Sales Tax Tribunal are not "courts" within the definition of "civil courts" under the Bombay Civil Courts Act,1869.

(3) It is not within the duties of the Law Officers to appear in the cases mentioned in sub-rule (1) of or filed before the courts or tribunals mentioned in sub-rule (2) or before any Appellate Authority or Commissioner of Payments on behalf of the State or its officers. However, if the administrative departments concerned and the Government Officers under their control desire to engage the services of the Law Officers in such cases they may do so for which neither the sanction of Government in the Law and Judiciary Department is necessary nor their fees and law charges are debitable

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to the grants at the disposal of that department. The administrative departments concerned or the Government officers under their control should settle the fees of the Law Officer, to be engaged by them, in advance, which are payable to them direct by the administrative departments concerned, as soon as the case is decided. It is however, for the Law Officers to ask for an advance, either for fees or for expenses, if they accept brief in such cases. Once the fees and law charges are settled in advance, the question of certifying reasonableness of fees payable to the Law Officers by the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to the Government, Law and Judiciary Department at Nagpur or Aurangabad as the case may be, does not arise.

(4) The administrative departments may, if they deem fit necessary, draw up a Panel of Counsel or engage any private counsel on permanent basis to appear on behalf of their departments concerned and the Government officers under their control in the Labour Courts, Industrial Courts or any other tribunals. The rate of fees and other law charges payable to such counsel may also be got fixed up in consultation with the Commissioner or Deputy Commissioner of Labour of the division concerned, as the case may be. As the payment of legal fees to such

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counsel falls under the category of special contingencies of non-recurring nature, prior sanction of Government in the administrative department is necessary. However, the counsel so engaged are not the Special Counsel, within the meaning of these rules and as such they are not entitled to any special fees. (5) If the Government Officer concerned desires to have an opinion on any legal point in any such case, he may refer the matter to his administrative department concerned, which may, if it deems fit, seek the opinion of the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be."

5 From Sub-Rule 1 of Rule 96 it appears that all the 10 proceedings mentioned thereunder are not the proceedings before the ordinary Civil Court. Execution Applications before the Civil Court are not included therein. Therefore, under Sub-Rule 2, it is mentioned that the Labour Courts, Industrial Courts, Revenue Courts, Courts of Rent Collector, Co-operative Courts or the Tribunals are not the Courts within the definition of Bombay Civil Courts Act, 1869. Sub-Rule 3 of Rule 96 provides that in the cases mentioned in the Sub-Rule 1, it is open for the administrative departments and concerned Government Officers under their control to engage the services of the Law Officers in the cases specified in sub-Rule 1. In such cases, neither the

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sanction of the Government nor of the Law and Judiciary Department is necessary. Their fees not debitable to the grants at the disposal of that department. It is further provided in Rule 96 that Administrative Departments and the concerned Government Officers under their control should settle the fees of the Advocate engaged by them which are payable directly by the Administrative Department concerned as and when the cases are decided.

Rule 138 reads thus:

"138 Charges in civil cases in mofussil District or Civil Courts -

(1) A Government Pleader shall submit his bill for fees and all charges (including travelling expenses) incurred by him in connection with civil cases to the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, for scrutiny and countersignature. (2) Such bills shall be accompanied by vouchers or by a copy of the Court's decree in support of every item contained in it. (3) Such bills shall be submitted as soon as possible after each case has been decided:

Provided that, where the Government Pleader has to incur expenditure from the permanent

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advance, he should submit advance bills regularly at the end of each month, irrespective of the amount in balance in the permanent advance:

Provided further that, when, as in the case of a court-fee chargeable on an appeal for a large amount, a Government Pleader has to pay a large sum expense, he may submit a separate bill for such sum immediately. (4) A bill submitted on the conclusion of any case shall include the whole of the charges incurred and the fees earned by the Government Pleader in connection with that case, and any sums which may have been drawn previously under sub-rule (3) shall be shown at the end of the bill and deducted.

(5) If the Remembrancer of Legal Affairs or the Joint Secretary or the Deputy Secretary to Government, Law and Judiciary Department at Nagpur or Aurangabad, as the case may be, passes any such bill, he shall countersign it and return it to the Government Pleader, who will then cash it at the treasury."

6 In the present case, the petitioner appeared before the regular Civil Court in the Execution Applications filed for enforcement of arbitral Award. As noted earlier, Rule 138 is applicable in Civil cases in Mofussil District or Civil Court. The cases listed under Sub-Rule 1 of Rule 96 are not

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civil cases in Mofussil District which are specifically covered by Rule 138. Clause (e) of Sub-Rule 1 of Rule 96 mentions arbitration cases. In the present case, the case will be governed by Rule 138 as the execution applications were filed in the Civil Court. The execution applications cannot be termed as arbitration cases.

7 The learned counsel for the petitioner has invited our attention to the correspondence on record. The first relevant letter is dated 3rd August 2009 addressed by the Deputy Executive Engineer of Tilari Project Division No.1. In the said letter addressed to the Superintending Engineer, the Deputy Executive Engineer recommended for grant of fees of Rs.10,41,818/- to the petitioner. By a letter dated 24th November 2009, the Assistant Superintending Engineer, Konkan Patbandhare Mandal, Ratnagiri requested the Secretary of the Water Resources Department to release grant of Rs.12,00,000/- to enable him to make payment to the petitioner. By a letter dated 25th February 2010, the Deputy Executive Engineer, Tilari Project Division No.1, informed the Superintending Engineer of the Konkan Patbandhare Mandal, Ratnagiri that in Special Darkhast Nos. 11 of 2008 and 19 of 2008, an amount of Rs.85,000/- is payable to the petitioner by way of fees. By a letter dated 3rd May 2011, the petitioner was informed by the Assistant Superintending Engineer, Konkan Patbandhare Mandal, Ratnagiri that for the financial year 2010-2011, grant of only a sum of Rs.10,000/- was made available. It was further

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stated in the said letter that after the eligibility to receive fees is assessed by the Law and Judiciary Department, Mantralaya, Mumbai and after receiving funds, necessary amount will be paid to the petitioner.

8 By a communication dated 11th May 2011 which is challenged by the petitioner, the Chief Engineer was informed by the State Government that the GR dated 21st February 1992 will not apply to the petitioner as the said GR is applicable only when Government Advocate appears before an Arbitrator. Therefore, the said communication directed that the case of the petitioner shall be considered under Rule 138 and not under Rule 96.

9 There are letters on record issued by the Executive Engineer or other Officers of the State Government recommending the case of the petitioner for payment of fees of Rs.10,41,818/- and Rs.85,000/- respectively. The said amounts were calculated on the basis of Rule 96 of the said Rules is applicable.

10 As stated earlier, Rule 96 will not apply as the proceedings in which the petitioner appeared are not covered by Sub-Rule (1) of Rules 96 and that Rule 138 will be applicable in the present case. As Rule 138 is applicable, the bill of the petitioner for fees and charges incurred by him in connection of the civil cases will have to be submitted as per Sub-Rule 1 of Rule 138. The amounts which are

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claimed in the petition have been calculated on the footing that Rule 96 will apply.

11 Our attention is invited to Sub-Rule (3) of Rule 28 of the said Rules which provides for Special fees which reads thus:

"(3)Special Fees -

(a)(i) In cases filed before the civil and criminal courts in which unusual importance or difficulty or marked industry or ability has been displayed and for which no fees has been prescribed in these rules, Government in the Law and Judiciary Department may sanction the payment of such special or enhanced fees as it deems fit.

(ii) In cases where there is a doubt as to the applicability of any rate prescribed by Government in the Law and Judiciary Department or as laid down in the rules, framed by the High Court regarding the computation of fees, the fees shall be determined and fixed by Government in the Law and Judiciary Department having due regard to the time and labour involved in the case.

(b)(i) An application for special or enhanced fees shall be made with as little delay as possible and shall be accompanied by a certificate, in original, of the dates of attendance in the court and a copy of judgment or order in the proceedings.

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(ii) The subordinate Law Officers shall submit such applications through their respective principal Law Officers."

12 Our attention is invited to various orders passed by the Executing Court in the proceedings in which the petitioner appeared. The Judgment and Order dated 15th July 2008 passed by the learned Civil Judge (Senior Division), Gadhinglaj in Special Darkhast No.26 of 2007 is annexed to the petition. From the Judgment it appears to us that the claim of more than Rs.11 crores with interest was made by the Decree Holder. The Executing Court granted a claim of Rs.7,05,79,315.14. A copy of the order passed by the Executing Court on 21st August 2009 in Special Darkhast No.19 of 2008 is placed on record. In the said case, claim of Rs.1,32,82,741.80 was made. The Executing Court granted a sum of Rs.1,01,47,507.63. There is a merit in the contention of the petitioner that the concerned department never informed him that he will not be paid fees as per Rule 96. He was always kept under an impression that he will get the fees as per Rule 96. Only after the disposal of the cases that a stand has been belatedly taken by the State that the petitioner would be entitled to fees as per Rule 138. Though a writ as prayed for cannot be issued as the petitioner will not be entitled to fees as per Rule 96, considering the peculiar facts, the case of the petitioner for payment of special fees in accordance with Rule 28 deserves to be considered.

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 13       Hence,   we   dispose   of   the   petition   by   passing 
 the following order: 


      (I)          It will be open for the petitioner to make 

an application in terms of Sub-Rule 3 of Rule 28 of the said Rules through the appropriate Department. It will be open for him to claim the same fees which are reflected from the communications issued by the Irrigation Department. The Government in Law and Judiciary Department will take appropriate decision on the question of eligibility of the petitioner to get special fees under the aforesaid provisions;

(II) The petitioner shall make an application for grant of special fees as aforesaid within a period of one month from today along with requisite documents which shall be decided by the State Government in Law and Judiciary Department within a period of one month from the date on which the said application is made; (III) In the event, a decision is taken not to grant special fees, the computation of the fees payable to the petitioner in the subject cases shall be made in accordance with Rule 138 on the petitioner submitting bills in prescribed format. Necessary payment shall be released as expeditiously as possible and in any event within a period of three months from the date on which the bills are submitted by the petitioner;

(IV) Rule is made absolute on above terms;

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      (V)          All concerned to act upon an authenticated 
          copy of this Judgment. 




          (A.A.SAYED,J.)                         (A.S.OKA,J.)