Inder Singh vs Union of India (UOI) and Others

Bhawani Singh, J.—The Petitioner is the Advocate General for the State of Himachal Pradesh from 24th December, 1992. In the past also, he had been Advocate General from 28th February, 1980 to 8th April, 1983 and from 17th March, 1989 to 1st March, 1990. His grievance is that the Respondents are not paying his professional fee for the cases he conducted as Advocate General on behalf of Respondents Nos. 1 and 2.

According to the Petitioner, the fee of Advocate General of Himachal ''Pradesh is regulated by the Rules known as ''Rules for Regulating the Remuneration and Duties of the Advocate General Rules, 1971. Rule 6 of these Rules provides as under:

Rule No. 6: In civil cases the Advocate General will paid fees in accordance with the following scales:

(a) Seven and half per cent on the first Rs. 5000/- of the claim, 3 per cent on the next Rs. 15,000/- of the claim, 1 per cent on the claim between Rs. 20,000/- and Rs. 50,000/- and 50 paise per cent on the claim above Rs. 50,000/-. The fees shall be subject to a minimum of Rs. 32/- and maximum of Rs. 1000/- for any one case, provided that, in any case of great importance making an unusual demand on the time and energy of the Advocate General, the State Government may direct that such fee as it considers suitable may be granted, not exceeding the fixed percentage rate upto maximum of Rs. 5000/-.

(b) In cases in any Court subordinate to the High Court conducted throughout by the Advocate General, the fee payable shall be to a minimum of Rs. 100/- for each day of attendance.

(c) For appearances in any case not conducted throughout by the Advocate General, the fee will be Rs. 100/-for each day of attendance Clause (a) above.

(d) xxx xxx xxx (e) xxx xxx xxx (f) xxx xxx xxx

According to the practice of the Advocate General''s office and the notification dated 22-12-1983, one-third of the fee of the case is paid to the Advocate General through whom the case is admitted and the remaining two-third to the Advocate General through whom the case is finally decided. The Respondent requested the third Respondent to conduct these cases through the Petitioner who was Advocate General at that time. Therefore, these cases were conducted by the Petitioner as Advocate General of Respondent No. 3 and not as a private Counsel. In this way, the Petitioner conducted large number of cases (Annexures P-l, P-2, P-3 and P-4). Consequently, detailed fee bills were submitted to the Respondents on various dates like 3rd April, 1992 (Annexures P-1, P-2 and P-3) and 29th March, 1993 (Annexure P-4), claiming an amount of Rs. 89,264/-. These bills remained unpaid for sufficient long time. Through communication (Annexure P-5), the Respondents intimated the Petitioner that he was entitled to Counsel-fee as per Punjab law Department Manual. As a matter of fact, the Punjab Law Department Manual has nothing to do with the Petitioner''s fee since he was entitled to fee in accordance with ''Rules for Regulating the Remuneration and Duties of the Advocate General Rules, 1971, further clarified by the third Respondent in the communication dated 22nd December, 1983 (Annexure P-6). Accordingly, two-third of the fee in cases mentioned in bills (Annexures P-1 to P-4) had already been paid to different Advocates General who had finally argued the cases and this two-third fee was calculated and paid on the basis of the Rules stated above. On earlier occasions also, the Respondents had made the payment of fee on the basis of these Rules except in cases covered by CWP No. 534 of 86 where the fee was paid on the basis of a compromise between the parties. The Respondents are raising the dispute only with respect to one-third of the fee. The Petitioner is entitled to his professional fee, claimed through the bills mentioned hereinabove, in accordance with the Rules applicable to him. The Punjab Law Department Manual and the settlement arrived at in CWP No. 534 of 86 do not apply to these bills since this compromise was confined to cases involved in that writ petition.

Numerous communications were sent to Respondent No. 2 for making the payment but nothing was done. On 29-6-93, Respondent No. 2 took a pre-receipt for Rs. 19956.50 (Annexure P-7) for Regular First Appeals mentioned in Annexures P-8 to P-11. Liability has been admitted by the Respondents (Annexure P-12) but no payment has been made. The calculation of fee has been made on the basis of Punjab Law. Department Manual which is patently arbitrary and illegal and, therefore, unacceptable to the Petitioner. The Petitioner is entitled to his professional fee totalling Rs. 89, 264 for cases mentioned in bills (Annexures P-1 to P-4), duly submitted for payment along with interest at the rate of 18 per cent per annum since the legitimate professional charges of the Petitioner were withheld without any justifiable reason depriving the Petitioner from use of the same.

By way of preliminary objections, Respondents Nos. 1 and 2 have stated that Counsel fee in respect of these cases was due to the Petitioner in the year 1981-82 when he claimed the same in other similar Regular First Appeals but not in these cases for reasons best known to him. Fee in certain Regular First Appeals was paid pursuant to settlement between the Parties in CWP No. 534 of 86 (Annexure R-1). Since quantum of fee claimed in these cases is disputed, writ petition is not maintainable. Alternative remedy of civil suit for the recovery of the amount is available to the Petitioner. On merits, it has been admitted that one-third fee is payable to the Advocate General who files and gets the case admitted and the remaining two-third, is paid to the Advocate General through whom the case is finally decided. This is as per clarification given by the Deputy Secretary (Home), Government of Himachal Pradesh, vide letter No. 19-19/71 Home-(B),dated 22-12-1983 (Annexure R-2). Accordingly, the fee was regulated and payable to the Advocate General. However, it is submitted that the Petitioner filed CWP No. 534 of 1986 (Inder Singh v. State of Himachal Pradesh and Ors.) in this Court in which the question of payment of fee incases which were decided bunch wise involved. On examination of the matter, it was decided that in such cases two-third of the admissible fee was to be paid in one case to be treated as the main case and one-half thereof was to be paid in the remaining cases. Further there was another category of bunch cases where the Regular First Appeals were dismissed in limine and the entitlement of Counsel fee in such cases was also determined on the above line, namely, two-third of the fee was to be paid in one such case to be treated as the main case and one-half thereof to be paid in the remaining cases. This position was pointed out to the Petitioner and a settlement on these lines was made between the parties. A copy of the communication from the General Manager, Beas Project Chandigarh, No. 1636.39/BPF /7170 dated 19-5-1989 (Annexure R-3) was received in this behalf and payment was made accordingly and accepted by the Petitioner. In accordance with the principle laid down in the Punjab Law Department Manual, namely, where a group of cases is heard together and are disposed of by one judgment, full fee is payable only in the case in which the main judgment is written, but in each of the connected cases, one-half of the fee would be payable. The claim of the Petitioner relates to admission of cases from 1981 to 1983, which were subsequently decided finally. Such fee has become admissible on the final decision of these cases and the same has already been paid to Shri Chhabil Dass, the then Advocate General. Moreover, these cases for which the filing admission fee has been claimed, have now been finally decided by this Court in bunches on different dates The Respondents were always willing to pay Counsel fee at the rates which were settled between the parties in Civil Writ Petition No. 534 of 1986. Accordingly, by way of first step in this direction, the Petitioner has already been paid a sum of Rs. 19956-50 vide Bank draft No. MOL/A/39-480100 dated 31-12-1993 in respect of 194 cases and the remaining bills are under process for arranging the payment in accordance with the aforesaid settlement. It has been admitted that these cases were entrusted to the Petitioner at the instance of the third Respondent by the first Respondent but not by other Respondents. In Civil writ Petition No. 534 of 1986, the Petitioner accepted Counsel fee in terms of the settlement read with Punjab Law Department Manual and payment of Rs. 33,942.85 for 144 bills was made to him. Hence, this settlement has superseded the provisions of the 1971 Rules as well as the clarifications contained in communication Annexure P-6 of 1983. The other Advocates General of Himachal Pradesh had been paid their fee as per the norms contained in the Punjab Law. Department Manual and not according to the Rules pressed into service by the Petitioner, Pre-receipt for Rs. 19956.50 was obtained from the Petitioner on 29-6-93 and this amount has since teen paid to him on 5-1-1994. The remaining fee is payable to the Petitioner in accordance with the Punjab Law Department Manual and settlement arrived at in Civil Writ Petition No. 534 of 1986 and the claim of the Petitioner for higher fee is not, therefore, tenable. Fee is being claimed after 10 to 12 years which is barred by time now. However, steps are being taken to make such payments which would be legitimately due to the Petitioner in accordance with the norms laid down, in Punjab Law Department Manual as well as the settlement in Civil Writ Petition No. 534 of 1986.

By way of rejoinder, the Petitioner has stated that fee did not become due to him in 1981-82 since it becomes payable and due when the case is finally argued and decided. It is at this stage that the Advocate General, who gets the case admitted is entitled to one-third of the fee and the Advocate General who argues the same finally gets two-third fee. These cases were got admitted by the Petitioner but finally argued by Shri Chhabil Dass, the then Advocate General on 7-12-1990, 14-12-1990 and 1-1-1991 (Annexures P-1 to P-4). It was thereafter that Shri Chhabil Dass was paid his fee on disposal of the cases The Petitioner claimed fee with respect to these cases which were finally disposed of in 1981-82, It has been admitted that fee in respect of cases disposed of in 1981-82 was claimed in Civil Writ Petition-No. 534 of 1986 where there was a settlement between the parties. Fee was paid to the Petitioner and the writ petition was disposed of on the basis of the settlement (Annexure R-1). The points raised in that writ petition were not decided by the Court, therefore, the decision of that writ petition would not be applicable in the present case. The settlement arrived at between the parties in that case would neither overrule the statutory Rules framed under Article 165 of the Constitution nor the instructions issued by the State Government. It has also been denied that the Petitioner is entitled to fee according to the settlement and Punjab Law Department Manual and not according to the 1971 Rules and instructions issued by the State Government (Annexure R-2). In the present case, the only question involved is whether the Advocate General is entitled to fee in accordance with the 1971 Rules or through any other mode or scheme, therefore, the case does not raise disputed questions of facts. It has been disputed, that in such cases two third of the admissible fee is to be paid in one case, to be treated as the main case and one-half thereof payable in the remaining cases. As matter of fact, the Advocate General if entitled to fee in accordance with the 1971 Rules read with instructions (Annexure R-2) and by no other schemes, means or modes. Communication (Annexure R-3) is between the Respondents arid the Petitioner has nothing to do with it. It does not overrule the statutory Rules of 1971 and instructions (Annexure R-2). The settlement in Civil Writ Petition No. 534 of 1986 has no bearing on the claim of the Petitioner in the present case nor he is to be paid according to the Punjab Law Departmnet Manual or any other mode. Assuming that the Advocate General was paid differently, does not mean that the Petitioner is to be paid similarly despite the fact that he is entitled to claim the fee in accordance with the 1971 Rules and instructions (Annexure R-2). The plea of limitation is totally uncalled for since the Petitioner had been claiming the fee right from the beginning and the Respondents admitting the liability to pay the same.

Through the sur-rejoinder, it has been reiterated that the Petitioner is entitled to fee according to the settlement in Civil Writ Petition No. 534 of 1986 read with the Punjab Law Department Manual. It is also stated that Shri Chhabil Dass was paid fee according to Punjab Law Department Manual and the Petitioner has to be paid similarly. Other contentions of the Petitioner have also been assailed. These are the essential pleas of the parties.

We heard the learned Counsel for the parties and examined the submissions raised by them carefully. The first question to be decided is whether the settlement arrived at in Civil Writ Petition No. 534 of 1986 and provisions of the Punjab Law Department Manual would govern the fee of the Advocate General in this case. In the State of Himachal Predesh, the fee of the Advocate General is regulated by the 1971 Rules, extract of which has been quoted above, therefore, it is difficult to conclude that the Advocate General of Himachal Pradesh would like to be paid in accordance with the Punjab Law Department Manual and not under the 1971 Rules which govern his service conditions and payment of fee. Moreover, 1971 Rules are more beneficial to him, therefore, he could not have divested himself of the application of these Rules and claimed fee under Rules of different State despite being less beneficial to him. The issue becomes crystal clear from Communication No. 19-19/71-Home (D) dated 22-12-1985 (Annexure P-6) from the Deputy Secretary (Home) to the Advocate General, Himachal Pradesh, touching the payment of fee to the Advocate General. It appears to have been issued pursuant to the letter No. 4-1/72.PNO-4307 dated 2-7-1985 from the Advocate General seeking clarification about the payment of fee to the Advocate General. It is relevant to quote some relevant part of it:

Point No. 1: The Advocate General who filed the appeal and got it admitted may be paid 1/3rd of the total fee and the remaining 2/3rd of the fee to the Advocate General who argues the appeal.

Points Nos. 2 and 3: The fee of the Advocate General, Himachal Pradesh, is to be regulated in accordance with the provisions of rules for regulating the remunerations and the duties of Advocate General issued vide Home-B-Deparment notification of even No. dated 25-5-1971. Under these Rules full fee is to be paid to the Advocate General in each case regardless of the fact whether it has been dismissed in limine (on the ground of amount involved in appeal being petty) or because the cases were decided by the single judgment.

xxx xxx xxx No. 19-19/71-Home (B) dated Shimla-2 the December 1983. Copy forwarded to the Executive Engineer, Land Acquisition and Admn. Division Beas Dam Talwara w.r. to his letter NO. 4470-72/35-L dated 23-9-82 for information and n.a.

Sd/- Deputy Secretary.

The endorsement to one of the relevant Respondent demonstrates that the entitlement of the Advocate General to fee in cases of these Respondents was to be governed by this communication and the 1971 Rules and paid accordingly. These Respondents have not pointed out that these norms were not acceptable to them. In these circumstances, raising of dispute and pressing in service Punjab Law Department Manual is completely baseless. Similarly, the settlement in Civil Writ Petition No. 534 of 1986 does not apply to this case since it is confined to cases which were the subject matter of this writ petition. It reads:

Mr. N.S. Bawa appearing for Respondents Nos. 3 to 5 made a statement that the matter in this case has been settled out of Court and in pursuance of that the Respondents Nos. 3 to 5 have agreed to make payment to the Petitioner within four weeks. In view of the above statement, made by Mr. Bawa, Mr. Goel, learned Counsel for the Petitioner, does not want to press this writ petition.

In view of the above circumstances this writ petition is dismissed. It is further made clear that we are not deciding any question raised in this writ petition on merits and we are deciding it only on the basis of the settlement arrived at between the parties out of Court.

Accordingly, the submission that this settlement is applicable in the present case also is thoroughly untenable. It is not possible to disbelieve the version of the Petitioner who is the Advocate General of the State. Equally untenable is the plea based on Annexure R-3 since it was neither endorsed to the Petitioner nor in tune with the order of this Court, dated 16-5-89 (Annexure R-l).

In the aforesaid circumstances, the fee claimed by the Petitioner through bills (Annexures P-1 to P-4) is in accordance with the Rules of 1971 read with instructions contained in Annexure R-2. Thus counted, the Petitioner is entitled to Counsel fee of Rs. 89,264/-

The Petitioner claims that he is also entitled to interest to the extent of Rs. 19,282.68 from the time of entitlement to the filing of this writ petition on September 6,1993 arid thereafter Rs. 8820/- till date, total amount coming to Rs. 1,17,366.68 since his fee was withheld without any justification and the Respondents had the benefit of utilising this amount for all these years. On this aspect, reliance was placed on para-23 of the apex Court decision reported in Joginder Singh Wasu Vs. State of Punjab, . It reads:

We have already referred to the letter, dated May 5, 1978 wherein the Appellant was requested to send the revised bill for the work done by him. The Appellant shall send the revised bill as per that request. Within four weeks from the date of receipt of revised bill, the entire amount due to him shall be calculated in accordance with the amended Notification No. 12679-2JJ-75/25572 dated August 7, 975 and shall be paid to him together with interest @12% per annum. We are obliged to award interest since the Government had the benefit of use of the said amount for a long number of years.

(emphasis supplied)

We think the claim of the Petitioner for interest is quite justified in the background of this case and we allow the same. The Petitioner has already received Rs. 19956.50 on 5-1-1994. Therefore, balance amount payable to him comes to Rs. 97410. Pursuant to our order dated 28-7-1994, a sum of Rs. 1,22,000/-has been deposited in the Registry of this Court. Out of it, Rs. 97410/- be paid to the Petitioner, and balance refunded to Respondents Nos. 1 and 2. There shall be no order as to costs.

Petition allowed