The
Himachal Pradesh State Legal Services Authority, in exercise of the powers
conferred on it under section 29-A of the Legal Services Authorities Act, 1987
(Act No. 39 of 1987), hereby makes the following regulations to give effect to
the provisions of the aforesaid Act: CHAPTER-I PRELIMINARY (1)
These regulations may be called the Himachal
Pradesh State Legal Services Authority Regulations, 1996. (2)
These shall come into force at once. (1)
In these regulations, unless the context
otherwise requires, (a)
"Act" means the Legal Services
Authorities Act, 1987 (39 of 1987); (b)
"Committee" means the High Court
Legal Services Committee; (c)
"High Court" means the High Court
of Himachal Pradesh; (d)
"Rules" means the Himachal Pradesh
State Legal Services Authority Rules, framed under the Act. (2)
All other words and expressions used in these
regulations, but not defined, shall have the same meanings as are assigned to
them in the Act or the rules framed, thereunder. CHAPTER-II HIGH COURT
LEGAL SERVICES COMMITTEE (1)
The High
Court Legal Services Committee shall including Chairman have not more than
seven members. (2)
The
following shall be ex-officio members of the High Court Legal Services
Committee: (i) a
sitting Judge of the High Court, (to be nominated by the Chief Justice of the
High Court) ... Chairman (ii) the
Advocate General, Himachal Pradesh ... Member (iii) the
President, Himachal Pradesh High Court Bar Association ... Member (3)
The Chief
Justice of the High Court may nominate other members (not exceeding four) from
amongst those possessing the experience and qualifications prescribed in
sub-regulation (3) of this regulation. (4)
A person
shall not be qualified for nomination as a member of the High Court Legal
Services Committee unless he is: (a)
an eminent
social worker who is engaged in the upliftment of the weaker sections of the
people, including Scheduled Castes, Scheduled Tribes, Women, Children, rural
and urban labour; or (b)
an eminent
person in the field of law or public administration; or (c)
a person of
repute who is specially interested in the implementation of the Legal Service
Schemes. (1)
The term of
office of the Members of the High Court Legal Services Committee nominated
under sub-regulation (3) or regulation 3 by the State Authority shall be two
years and they shall be eligible for re-nomination. (2)
A member of
the High Court Legal Services Committee under sub-regulation (3) of regulation
3 may be removed by the Chief Justice of the High Court, if: (a)
he fails,
without sufficient cause, to attend three consecutive meetings of the High
Court Legal Services Committee; (b)
has been
adjudged an insolvent; or (c)
has been
convicted of an offence, which in the opinion of the State Authority involves
moral turpitude; or (d)
has become
physically of mentally incapable of acting as a member; or (e)
has so
abused his position as to render his continuance in the High Court Legal
Services Committee prejudicial to the public interest: Provided that no member shall be removed from the High Court Legal
Services Committee, without affording him reasonable opportunity of being
heard. (3)
A member
may, by writing under his hand addressed to the Chairman resign from the High
Court Legal Services Committee and such resignation shall take effect from the
date on which it is accepted by the State Authority or on the expiry of 30 days
from the date of tendering resignation, whichever is earlier. (4)
If any
member nominated under sub-regulation (3) of regulation 3 ceases to be member
of the High Court Legal Services Committee for any reason, the vacancy shall be
filled up in the same manner as the original nomination and the person so
nominated shall continue to be a member for the remaining term of the member in
whose place he is nominated. (5)
Subject to
the provision of sub-regulation (6) all members nominated under sub-regulation
(3) of regulation 3 shall be entitled to payment of travelling allowance and
daily allowance in respect of journeys performed in connection with the work of
the High Court Legal Services Committee and shall be paid by the High Court
Legal Services Committee in accordance with the Himachal Pradesh Government
instructions contained in Finance Regulation Department Office Memorandum No.
Fin.(C)-B(7)-2/88, dated 24-5-1995, as amended from time to time. (6)
If a member
is a Government employee, he shall be entitled to draw the travelling allowance
and daily allowance at the rates to which he is entitled to under the service
rules applicable to him and shall draw from the department in which he is
employed and not from the High Court Legal Services Committee. (7)
The
Secretary of the High Court Legal Services Committee shall be the part time
officer of the High Court Legal Services Committee and he shall be paid
honorarium for the performance of the functions as such, at such rates as may
be fixed from time to time, by the State Authority in consultation with the
State Government. (1)
It shall be
the duty of the High Court Legal Services Committee to give effect to the
policy and directions of the State Authority. (2)
Without
prejudice to the generality of the function referred to in sub-regulation (1),
the High Court Legal Services Committee shall, for the High Court, perform all
or any of the following functions, namely: (a)
provide
legal services to persons who satisfy the criteria laid down under the Act and
the rules framed thereunder. (b)
conduct Lok
Adalats for High Court cases; and (c)
encourage
the settlement of disputes by way of negotiations, arbitration and
conciliation. (1)
The
Secretary shall be custodian of all assets, accounts, records and funds placed
at the disposal of the Committee and shall work under the supervision and
direction of the Chairman of the Committee. (2)
The
Secretary shall maintain or cause to be maintained true and proper accounts of
the receipt and disbursement of the funds of the Committee. (3)
The
Secretary shall convene meeting of the Committee with the previous approval of
the Chairman and shall also attend meeting and shall be responsible for
maintaining a record of the minutes of the proceeding of the meetings. (1)
The
Committee shall ordinarily meet once a month on such date, and at such place as
the Secretary may, in consultation with the Chairman decide. (2)
The
Chairman, and in the absence of the Chairman a person chosen by the members
present from amongst themselves shall preside at the meeting of the Committee. (3)
The
procedure at any meeting of the Committee shall be such as the Committee may
determine. (4)
The minutes
of the proceedings of each meeting shall be truly and faithfully maintained by
the Secretary and such minutes shall be open to inspection at all reasonable
times by the members of the Committee. A copy of the minutes shall, as soon as
may be after the meeting, be forwarded to the State Authority. (5)
The quorum
for the meeting shall be four including the Chairman or the member presiding
over the meeting. (6)
All
questions at the meeting of the Committee shall be decided by a majority of the
Members present and voting and in cases of a tie the person presiding shall
have a second or casting vote. (1)
The Funds of
the Committee shall consist of such amounts as may be allocated and granted to
it by the State Authority as also such amounts as may be received by the
Committee from time to time either by way of donations or by way of costs,
charges and expenses recovered from the legal aided persons or the opposite
party or otherwise. (2)
The funds of
the Committee shall be maintained in a Scheduled Bank. (3)
For the
purpose of meeting the incidental minor charges as Court fee, stamps and
expenditure necessary for obtaining copies of documents etc., a permanent
advance of rupees two thousand shall be placed at the disposal of the Secretary
of the Committee. (4)
All
expenditure on legal aid and advice, provision of other legal services as also
expenditure necessary for carrying out the various function of the Committee,
shall be met out of the funds of the Committee. Secretary shall operate the
bank accounts of the Committee in accordance with the directions of the
Chairman. (5)
The
Committee shall cause to be kept and maintain true and correct accounts of all
receipts and disbursements and furnish quarterly returns to the State
Authority. The accounts of the Committee shall be audited by the State
Government Local Audit Department at least once a year and any expenditure
incurred in connection with such audit shall be paid by the Committee. CHAPTER-III DISTRICT
LEGAL SERVICES AUTHORITIES AND TALUKA LEGAL SERVICES COMMITTEES (1)
The Secretary of the District Legal Services
Authority appointed, under sub-section (3) of section 9 of the Act shall act,
exercise and perform the duties of the Secretary of the District Legal Services
Authority in addition to the duties to be discharged by him as a Judicial
Officer and for the discharge of his additional duties he may be paid an
honorarium as may be fixed from time to time by the State Authority in
consultation with the State Government. (2)
The Secretary shall be the principal officer
of the District Authority and shall be custodian of all assets, accounts,
records and funds placed at the disposal of the District Authority. (3)
The Secretary shall maintain or cause to be
maintained true and proper accounts of the receipts and disbursement of the
funds of the District Authority. (4)
The Secretary shall convene, meetings of the
District Authority with the previous approval of the Chairman and shall also
attend meeting, and shall be responsible for maintaining a record of the
minutes of the proceeding of the meetings. (1)
The District Authority shall ordinarily meet
once a month on such date, at such place, as the Secretary may, in consultation
with the Chairman decide. (2)
The Chairman, and in the absence of the
Chairman, a person chosen by the members present from amongst themselves shall
preside at the meeting of the District Authority. (3)
The procedure at any meeting of the District
Authority shall be such as the District Authority may determine. (4)
The minutes of the proceedings of each meeting
shall be truly and faithfully maintained by the Secretary and such minutes
shall be open to inspection at all reasonable time by the members of the
District Authority. A copy of the minutes shall as soon as may be, after the
meeting, be forwarded to the Chairman of the District Authority. (5)
The quorum for the meeting shall be three
including the Chairman or the member presiding over the meeting. (6)
All questions at the meeting of the District
Authority shall be decided by majority of the members present and voting and in
case of a tie, the person presiding shall have a second or casting vote. (1)
The funds of the District Authority
established under section 17 of the Act, shall be maintained in a Scheduled
Bank. (2)
For the purpose of meeting the incidental
minor charges such as court fee, stamps and expenditure necessary for obtaining
copies of documents etc., a permanent advance of rupees two thousand shall be
placed at the disposal of the Secretary of the District Authority. (3)
All expenditure on legal aid and advice,
provisions of other legal services as also expenditure necessary for carrying
out the various functions of the District Authority, shall be met out of the
funds of the District Authority and in accordance with such rules as may be
made by the District Authority with the prior approval of the State Authority.
The Secretary shall operate the bank accounts of the District Authority. (4)
The District Authority shall cause to be kept
and maintained true and correct accounts of all receipts and disbursements and
furnish quarterly return to the State Authority. Such accounts shall be audited
in accordance with the provisions of section 18 of the Act. (1)
The Office Superintendent of the Office of
the person performing the functions of the Chairman of the Taluka Legal
Services Committee or in case if there is no such Superintendent, some other
officer/official working under the Chairman and appointed by him, shall act,
exercise and perform the duties of the Secretary of the Taluka Legal Services
Committee. He shall be a part time officer and for the discharge of the
additional duties shall be paid an honorarium as may be fixed from time to time
by the State Authority, in consultation with the State Government. (2)
The Secretary shall be the custodian of all
assets, accounts, records and funds placed at the disposal of the Taluka
Committee. (3)
The Secretary shall maintain or cause to be
maintained true and proper accounts of the receipt and disbursement of the
funds of the Taluka Committee. (4)
The Secretary shall with the previous
approval of the Chairman, convene meetings of the Taluka Committee and shall
also attend meetings and shall be responsible for maintaining a record of the
minutes of the proceeding of the meetings. (1)
The Taluka Committee shall ordinarily meet
once a month on such date, at such place, as the Chairman may decide. (2)
The Chairman, and in the absence of the
Chairman, a person chosen by the members present from amongst themselves shall
preside at the meeting of the Taluka Committee. (3)
The procedure at any meeting of the Taluka
Legal Services Committee shall be such as the Taluka Committee may determine. (4)
The minutes of the proceedings of each
meeting shall be truly and faithfully maintained by the Secretary and such
minutes shall be open to inspection at all reasonable times by the members of
the Taluka Committee. A copy of the minutes shall, as soon as may be, after the
meeting, be forwarded to the District Authority as well as State Authority. (5)
The quorum for the meeting shall be three
including the Chairman or the member presiding over the meeting. (6)
All questions at the meeting of the Taluka
Committee shall be decided by a majority of the members present and voting and
in case of a tie, the person presiding shall have a second or casting vote. (1)
The Funds of the Taluka Committee shall
consist of such amount as may be allocated and granted to it by the State
Authority as also such amounts as may be received by the Committee from time to
time either by way of donations or by way of costs, charges and expenses
recovered from the legal aided persons or the opposite party or otherwise. (2)
The Funds of the Taluka Committee shall be
maintained in a Scheduled Bank. (3)
For the purpose of meeting the incidental
minor charges such as Court fee, stamps and expenditure necessary for obtaining
copies of documents etc., a permanent advance of rupees two thousand shall be
placed at the disposal of the Secretary of the Taluka Committee. (4)
All expenditure on legal aid and advice,
provisions of other legal services as also expenditure necessary for carrying
out the various functions of the Taluka Committee shall be met out of the funds
of the Taluka Committee. The Secretary shall operate the bank accounts of the
Committee in accordance with the directions of the Chairman. (5)
The Taluka Committee shall cause to be kept
and maintain true and correct accounts of all receipts and disbursements and
furnish quarterly returns to the State Authority. The accounts of the Taluka
Committee shall be audited by the State Government Local Audit Department at
least once a year and any expenditure incurred in connection with such audit
shall be paid by the Taluka Committee. CHAPTER-IV LEGAL AID Every person who has to file or defend
a case shall be entitled to legal services if that person is: (a)
a member of a Scheduled Caste or Schedule
Tribes; (b)
a victim of trafficking in human beings or
beggar as referred to in Article 23 of the Constitution; (c)
a woman or a child; (d)
a mentally ill or otherwise disabled person; (e)
a person under circumstances of underserved
want such as being a victim of a mass disaster, ethnic violence, caste
atrocity, flood, drought, earthquake or industrial disaster, or (f)
am industrial workman; or (g)
in custody, including custody in a protective
home within the meaning of clause (g) of section 2 of the Immoral Traffic
(Prevention) Act, 1956, or in a juvenile home within the meaning of clause (j)
of section 2 of the Juvenile Justice Act, 1986, or in a psychiatric nursing
home within the meaning of clause (g) of section 2 of the Mental Health Act,
1987; or (h)
in receipt of annual income less than rupees
fifteen thousand or other higher amount as may be fixed under rule 17 of the
Himachal Pradesh Legal Services Authority Rules, 1995: Provided that the Legal Services
Committee or authority may grant legal aid (i)
in a case of great public importance; or (ii)
in a test case, the decision of which is
likely to affect cases of numerous other persons belonging to the weaker
sections of the community; or (iii)
in any case, which for reasons to be recorded
in writing, is considered by the Chairman to be deserving of legal aid even
where the means test is not satisfied. Legal aid may be given in all or more
of the following modes, namely:- (a)
payment of court-fees, process fees and all
other charges payable or incurred in connection with any legal proceedings; (b)
representation by a legal practitioner in
legal proceedings; (c)
obtaining and supply of certified copies of
orders and other documents in legal proceedings; (d)
preparation of appeal, paper book including
printing and translation of documents, in legal proceedings. Legal aid shall not be given in the
following cases, namely: (1)
Proceedings wholly or partly in respect of: (a)
defamations; or (b)
malicious prosecution; (c)
a person charged with contempt of court
proceedings; (2)
proceedings relating to any election; (3)
proceedings incidentally to any proceedings
referred to in items (1) and (2); (4)
proceedings in respect of offences where the
fine imposed is not more than Rs. 50/-; (5)
proceedings in respect of economic offences
and offences against social laws, such as the Protection of Civil Rights Act,
1955, and the Immoral Traffic (Prevention) Act, 1956: Provided that the Chairman may in
appropriate cases grant legal aid even in such proceedings for reasons to be
recorded in writing. (6)
Where a person seeking legal aid (a)
is concerned with the proceeding only in
official capacity; or (b)
if a formal party to the proceedings, not
materially concerned in the outcome of the proceedings and his interest are not
likely to be prejudiced on account of the absence of proper representation. (1)
Any person desiring legal aid or advice may
make an application addressed to the Secretary of the Authority/Committee. But
if the applicant is illiterate or not in a position to fill in the particulars
required in the application, the Secretary or any other officer of the
Committee or any legal practitioner whose name appears on the panel of Legal
Aid Lawyer of the Authority/Committee, as the case may be, shall gather the
necessary particulars from the applicant and prepare the application on his
behalf and after reading it out and explaining it to him, obtain his signature
or thumb mark on it. (2)
The Authority/Committee shall maintain a
register of applications wherein all applications for legal aid and advice
shall be entered and registered and the action taken on such applications shall
be noted against the entry relating to each such application. (1)
On receipt of an application for legal aid or
advice, in the case of High Court Committee or District Authority, the
Secretary and in the case of Taluka Committee, the Chairman of the Taluka
Committee shall scrutinise the application for the purpose of deciding whether
the applicant is deserving of legal aid in accordance with the provisions of
these Regulations and for the purpose of arriving at such decision, he may
require the applicant to submit further information as may be necessary and
also discuss the matter personally with the applicant and in doing so he shall
have regard to the fact that the applicant belongs to a weaker section of the
community and is required to be assisted even in the matter of obtaining legal
aid. The application shall be processed as early as possible and preferably
within one week. (2)
The Legal Services Authority/Committee, to
which application is made shall consider the application and decide
desirability of granting application and its decision to give or refuse legal
aid shall be final. (3)
Where it is decided not to give legal aid to
an applicant, the reasons for not doing so shall be entered in the Register of
applications maintained by the Authority/Committee and information in writing
to that effect shall be communicated to the applicant. (4)
No application for legal aid or advice shall
be allowed, if the Authority/Committee is satisfied that: (a)
the applicant has knowingly made false
statement or furnished false information as regards his means or place of
residence; or (b)
in a proceeding, other than the one relating
to criminal prosecution, there is no prima facie case to institute, or as the
case may be, to defend the proceeding; or (c)
the application is frivolous or fictitious;
or (d)
the applicant is not entitled to the same
under regulation 17 or any other provision of these regulation; or (e)
having regard to all the circumstances of the
case, it is otherwise not reasonable to grant it. (1)
Where an application for legal aid or advice
is allowed, the Secretary of the Authority/Committee shall issue a Certificate
of Eligibility to the applicant entitling him to legal aid or advice in respect
of the proceeding concerned. (2)
The Certificate of Eligibility shall stand
cancelled if the legal aid is withdrawn and the lawyer to whom the case of the
applicant is assigned as also the court before which the case is pending shall
be informed accordingly in writing. (1)
Subject to the approval of the State
Authority, the Legal Services/Authority/Legal Service Committee shall prepare a
panel of legal practitioners who are prepared to represent or prosecute the
cases on behalf of the legal aided persons under these regulation. The legal
practitioners on the panel shall be paid honorarium as set out in the Schedule: Provided that where the matter is
disposed of in less than five effective hearings, the fee payable shall be 1/3
of the fee prescribed in the Schedule. (2)
No legal practitioner to whom any case is
assigned either for legal advice or for legal aid shall receive any fee or
remuneration whether in cash or in kind or any other advantage, monetary or
otherwise, from the aided person or from any other person on his behalf. (3)
The legal practitioner on the Panel, who has
completed his assignment, shall submit a statement showing the honorarium due
to him in connection with the legal proceeding conducted by him on behalf of
the legally aided person to the Secretary of the Authority/Committee who shall
with the approval of the Chairman and after due scrutiny and countersignature,
place the same before the Authority/Committee for sanction and on such sanction
being given by the Authority/Committee the amount shall be paid by the Secretary
to the legal practitioner. It will, however, be open to the legal practitioner
to waive the honorarium in whole or part. (1)
Every aided person or his representative
shall attend the office of the Authority/Committee as and when required by the
Authority/Committee or by the legal practitioner rendering legal aid to him and
shall furnish full and true information and shall make full disclosure to the
legal practitioner concerned and shall attend the Court as and when required,
at his own expense. (1)
The Authority/ Committee may either on its
own motion or otherwise cancel the Certificate of Eligibility granted under
regulation 20 in the following circumstances, namely: (a)
in the event of being found that the aided
person was possessed of sufficient means or the Certificate of Eligibility was
obtained by misrepresentation or fraud; (b)
in the event of any material change in the
circumstances of the aided person; (c)
in the event of any misconduct, misdemeanor
or negligence on the part of the aided person in the course of receiving legal
aid; (d)
in the event of the aided person not
co-operating with the Committee or with the Legal Practitioner assigned by the
Committee/Authority; (e)
in the event of the aided person engaging a
legal practitioner other than the one assigned by the Committee/Authority; (f)
in the event of death of the aided person
except in the case of civil proceedings where the right of liability survives; (g)
a report has been received from the advocate
assigned to the legally aided person that the legally aided is not co-operating
with the advocate assigned to him or is guilty of misconduct towards the
advocate and such report has been verified by the Chairman of the Legal Services
Committee/Authority: Provided that, no such Certificate of
Eligibility shall be cancelled without giving due notice thereof to the aided
person or to his legal representatives in the event of his death to show cause
as to why the Certificate should not be cancelled. (2)
Where the Certificate of Eligibility is
cancelled on the grounds set out in clause (a) above, the Authority/Committee
shall discontinue legal aid allowed and shall be entitled to recover from the
aided person the amount of legal aid granted to him. Notwithstanding anything to the
contrary contained in these regulations, in case the Chairman of any
Committee/Authority is of the opinion that such a situation has arisen wherein
immediate action is required to be taken or there is no possibility of
immediate convening the meeting of the Committee/Authority, then he may, in
anticipation of the approval of the Committee/Authority concerned, take such
action as he may deem fit, and thereafter he shall, as soon as possible send a
report of his action so taken to the Committee/Authority concerned. Advocate engaged out of the panel as
prepared for prosecuting/ defending/protecting legal interest of a person
granted free legal aid shall be entitled to the fee other than the High Court
as under: 1.
Rs. 850/- per case in any court at
Sub-Divisional level, such as the Court of Senior Sub-Judge, Chief Judicial
Magistrate, Sub-Judge Judicial Magistrate, Court of Assistant Commissioner, 1st
Grade, Sub-Divisional Collector, Sub-Divisional Magistrate, Tehsildar; 2.
Rs. 1250/- per case at District level, such
as the Courts of District Judge, Sessions Judge, Additional District Judge,
Additional Sessions Judge, District Collector, Divisional Commissioner,
District Consumer Forum established under the Consumer Protection Act, 1986 and
Labour and Industrial Tribunal set up under the Industrial Disputes Act, 1947; 3.
Rs. 3000/- maximum payable after disposal of
the case at the High Court level including the State Consumer Forum established
under the Consumer Protection Act, 1986 and the Court of Financial Commissioner
Revenue (Appeals). 4.
Fee payable to a panel lawyer under these
regulations shall be made in two instalments as under: (i)
1/2 of the fee, on engagement of the lawyer,
payable, after first hearing of the ease; (ii)
remaining fee, payable after the final
decision of the case. HIMACHAL PRADESH STATE
LEGAL SERVICES AUTHORITY REGULATIONS, 1996
PREAMBLE