M.N.BHANDARI, J. - (1.) By this writ petition, a challenge is made to third proviso of Section 17(1) of the Rajasthan Advocates Welfare Fund Act, 1987 (in short "the Act of 1987"), as amended by the Act of 2012 i.e.
(2.) Rajasthan Advocate Welfare Fund (Amendment) Act, 2012 (for short "the Amendment Act of 2012") apart from Sections 17 and 18 of the Act of 1987, as amended in the year 2012. Brief facts of the case are that petitioner's husband was an Advocate and became Member of the Rajasthan Advocates Welfare Fund (in short "Welfare Fund") on 25th February, 1991. He remained Member of the Welfare Fund continuously for more than 10 years, however, his membership was terminated/ceased due to default in making payment of subscription towards the Welfare Fund. The petitioner's husband was re-admitted as Member of the Welfare Fund on 4th October, 2012. While readmitting, he had deposited complete arrears of subscription with interest for past years.
(3.) The petitioner's husband died on 28th September, 2014. The petitioner prayed for relief under the Act of 1987 but has been denied by the Bar Council of Rajasthan in reference to Sections 16, 17 and 18 of the Act of 1987. For ready reference, the provisions are reproduced hereunder: "16. Membership in the Fund.-(1) Every advocate practising before any Court, Tribunal or other authority legally authorized by any law to take evidence or to adjudicate or decide any dispute in the State shall apply to the Trustee Committee for admission as a member of the fund in such form as may be prescribed: (2) On receipt of an application under sub-sec. (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 heard against rejection of his application. (3) Every applicant shall pay an admission fee of Rs.400/- in lump-sum alongwith application for membership, which shall be credited to the account of Trustee Committee. (4) In the event of rejection of the application, the admission fee paid shall be refunded to the applicant. (5) Every member shall pay [in advance] an annual subscription to the Fund on or before the 30th June of every year at the following rates, namely:- (i) Where the standing of the Advocate at the Bar is less than five years- Rs. 300/- (ii) Where the standing of the Advocate at the Bar becomes five years or is less than ten years-Rs. 750/- (iii) Where the standing of the Advocate at the Bar is ten years or more-Rs. 1250/- Provided that a member of the fund may deposit in lump-sum a sum of Rs. [17,500/-] and in that event he shall be required to pay annual subscription[:] ? Provided further that the prospective member shall pay the full subscription of the current year alongwith the admission fee to the fund [:] Provided also that if annual subscription of current year is paid on or before 30th June, the member of the Fund shall be liable to pay on the amount of arrear an interest at the rate of Rs. 1.50 per hundred per (4 of 11) [CW-4285/2016] month from the date on which subscription becomes due. (6) Any member who fails to remit the annual subscription on or before the due date mentioned in sub-sec. (5) shall, upon notice in writing of one month being [issued to him under postal certificate] by the Trustee Committee, be liable to be removed by the Trustee Committee from the membership of the Fund. (7) A person removed from the membership of the Fund under sub-sec. (6) shall be re-admitted by the Trustee Committee to the Fund on payment of the arrears of subscription due against him alongwith interest thereon at the rate of 1.50 rupees per hundred per month from the date the subscription became due and 100/- rupees as readmission fees within one year from the date of his removal: Provided that where a member does move application for re-admission within stipulated period the amount deposited by way of subscription shall be refunded to him if he has been granted any exgratia under Section 25 or he is entitled for any benefit under Section 17. (8) A member of the Fund may, at any time after his admission to the membership of the Fund, make a nomination in the prescribed form appointing one or more person to receive the benefits arising from his membership of the Fund in the event of his death. (9) If a member nominates more than one person under sub-sec. (8), he shall specify in the nomination the 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. (10) A member may at any time cancel his nomination by sending notice in writing to the Trustee Committee and in that event, he shall be entitled to make a fresh nomination during the continuance of his membership in accordance with sub-sec. (8). (11) 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 such member fails to do so without sufficient reason, the Trustee Committee may reduce, in accordance with such principles as may be prescribed, the amount due to that member. (12) A member who ceases to practice in Rajasthan shall automatically cease to be a member of the Fund and such member shall be entitled to receive the amount of subscription deposited by him, if he has been granted any ex-gratia under Section 25 or, as the case may be, the benefits under Section 17 upto the date of such cessation. (13) A member of the Fund, who is punished for professional misconduct under the Advocates Act and is suspended from practice, shall be entitled to benefits of the Fund for the period of such suspension nor shall be required to pay yearly subscription for such period. 17. Payments from the Fund on cessation of Practice.-(1) A member of the Fund who completes a period of five year's practice after he becomes member of the Fund shall, subject to the provisions of this Act, be entitled on cessation of practice to receive out of the Fund an amount corresponding to the number of years of his standing at the rate specified in the Schedule. Explanation.-(i) For the purpose of calculating the number of years of standing of a member of the Fund for the purpose of this sub-section, every four year's practice as an advocate before the admission of a member to the Fund shall be counted as one year's standing and every year of practice over and above four years before such admission shall be counted equivalent to three month's standing and the total number of years of standing so counted shall be added to the number of years of practice after such admission. (ii) The period during which a member of the Fund remained under suspension shall be considered for the purpose of counting the years of standing: Provided that a member shall be entitled to claim an amount of Rs. 500/- for a fraction, if any, remaining after dividing the number of years of practice by four as per Explanation (I) [:] Provided further that in the event of death of a member the sum payable under this sub-section shall be the amount as specified in the Schedule or [rupees two lacs fifty thousand] whichever is higher: Provided also that the provisions of second proviso shall be applicable in respect of a member who is admitted or readmitted after the age of forty five years: Provided also that the member admitted to the Fund after the commencement of the Rajasthan Advocates Welfare Fund (Amendment) Act, 2003 (Act No. 9 of 2003) shall be entitled to the benefit of Explanation (i). (2) In the event of death of a member of the Fund, the amount to which the member was entitled shall be paid to his nominee, to his dependents and in absence thereof, to his legal heirs subject to their obtaining a succession certificate from the competent court. (3) The amount payable as per sub-sec.(1) can be claimed after completion of fifteen yeas practice as an advocate or on attaining fifty years of age, whichever is [later], but the member will have to seek retirement as an advocate and shall be entitled to be enrolled as an advocate and to become member of the fund. Provided that a member suffering from permanent disablement shall be allowed to draw the amount before completing fifteen years of membership of fifty years of age or, as the case may be, both. (4) An application for payment of the amount from the Fund admissible to a member shall be made by him to the Trustee Committee in such form as may be prescribed. 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 the refund of the annual subscription paid by him under sub-sec. (5) of Section 16 on his making an application thereof in such form as may be prescribed. (5) An application received under sub-sec. (3) or subsec. (4) shall be disposed of by the Trustee Committee after such enquiry as it deems necessary. 18. Restriction on benefits from the Fund.-(1) Notwithstanding anything to the contrary contained in this Act, if any Advocate after his admission to the Fund joins an employment, he shall cease to be a member of the Fund and if he, thereafter, gets readmission to the Fund within a period of fifteen years, he shall be entitled to the benefit as per the schedule appended to Section 17 for such number of years of standing as he remains member of the Fund before joining such employment and after such readmission. (2) Notwithstanding anything contained in this Act, a person who gets himself enrolled or resume as an Advocate after serving under may employer for a period of less than fifteen years, shall be entitled to become a member of the Fund nor to receive any benefit of the Fund. (3) A person who is in full time service gets himself enrolled by virtue of the provisions of the Advocates Act, 1961 (Central Act No. 25 of 1961) and rules framed thereunder by the Bar Council of India and State Bar Council shall be entitled to become a member of the Fund.";