GSR 48. - The Government of Rajasthan is
pleased to make following Rules for providing legal assistance to the Indian
Soldiers. (1)
These rules may be called the Rajasthan Legal
Assistance (Indian Soldiers) Rules, 1971. (2)
They shall come into force from such date as the
Government may, by notification in the official Gazette, appoint and different
dates may be appointed for different areas. (3)
They shall remain in force while the proclamation
of Emergency is in operation. In these rules, unless the context
otherwise requires, (a) "Act" means the Indian Soldiers
(Limitation) Act, 1925 (Central Act 3 of 1925); (b) "Court" means a civil, criminal or
revenue Court; (c) "Indian Soldier" means any person
domiciled in Rajasthan and subject to the Army Act, 1950 or the Air Force Act,
1950. (d) "Proceedings" includes any suit,
appeal or application or any complaint or police report; (e) "Proclamation of Emergency" means
the proclamation of Emergency made by the President of India under clause (1)
of Article 352 of the Constitution of India; (f) "Section" means the section of the
Indian Soldiers (Litigation) Act, 1925 (Central Act 3 of 1925); (g) "Saving under war conditions" means
serving under conditions declared by the Government of India under clause (b)
of section 3 of the Indian Soldiers (Litigation) Act, 1925 (Central Act 3 of
1925) as constituting a State of War for the purposes of the said Act. Legal assistance at the expense of
the State may be provided to an Indian Soldier serving under war conditions.- (a) If, in any proceeding by or against an Indian
Soldier pending before any court on the date of commencement of these rules in
any area or in any proceeding instituted in any court against such soldier
after such commencement, he is- (i)
an unrepresented party not conjointly with others and is unable to
appear therein, or (ii)
an unrepresented party conjointly with others but the interests of the
soldier are not identical with and are not adequately represented by such other
party or are not of a formal nature and such soldier is unable to appear in
such proceeding, or (iii)
not a party, but is materially concerned in the outcome of the
proceeding and his interests are likely to be prejudiced by his inability to
attend. (b) If any proceeding is intended to be instituted by
or on behalf of an Indian soldier alone to prevent any one to invade or
threaten to invade the soldiers right to or enjoyment of his property or to
prevent it from being wasted, damaged or alienated, or to restrain anyone from
causing any injury of any kind to such soldier or to recover possession of any
property of which he is dispossessed after the date of the proclamation of
Emergency; provided that in civil and revenue proceedings falling under parts
(i) and (ii) of clause (a), the Collector shall first be moved to issue a
certificate under section 5 and legal assistance shall not be provided under
these rules unless such proceedings have been continued by the Court under
section 8. (1)
An Indian Soldier or on his behalf his next kin,
other relative or friend may, in the prescribed form, apply to the
Sub-Divisional officer within whose jurisdiction the Indian soldier ordinarily
resides or his property or the court, wherein the proceeding instituted by or
against such soldier is pending or is intended to be instituted by or on his
behalf, is situated. (2)
The Sub-Divisional officer, on being satisfied that
legal assistance is admissible to such soldier under rule 3 and that no legal
practitioner has volunteered, or is likely to volunteer, to represent such
soldier without payment of fee to him, may, subject to rule 5, engage any legal
practitioner to represent such soldier in such proceeding. The Sub-Divisional officer shall:- (a) maintain a list of legal practitioner of not more
than seven years standing at the Bar practicing at the Tehsil, Sub-Division or
district headquarter: (b) engage under rule 4 a legal practitioner from the
said panel by rotation in the order in which the name appears in such list
unless there are special reasons to the contrary to be recorded in writing by
such officer: Provided that if any particular
case, the Sub-Divisional officer considers it necessary to engage a senior
legal practitioner on behalf of the Indian Soldier, he may engage such a
practitioner after obtaining prior approval in writing of the Collector. When a legal practitioner is
engaged by the Sub-Divisional officer to represent an Indian soldier, he shall
receive:- (a) if the proceedings are pending or instituted in a
criminal court such fee as may be agreed upon between the Sub-Divisional
officer and such practitioner; (b) if the proceedings are pending or instituted in a
civil or a revenue court, such fee as is legally taxable according to the Rules
in force for the time being; (c) The Sub-Divisional officer shall certify on each
bill of fees received by him from legal practitioner that the amount of fees
has been fixed having regard to all the circumstances of the case and that it
is reasonable: Provided that in cases falling
under clause (b) if the pecuniary value of the suit, appeal or application
cannot be defined or when defined is so low that the fees calculated thereon
are trifling, the Sub-Divisional officer may fix such fee as he deems proper
taking into consideration the circumstances of the case: Provided further that the fee
payable under this rule shall not exceed in each case fifty rupees where a
penal legal practitioner is engaged under the proviso to rule 5. Expenses incurred in defending a
soldier under these rules, shall be payable by the Government if they are
exclusively incurred in connection with the litigation in question on account
of Court fee, Vakalat Nama, Application etc. filed in court. Note: - Stamp duty on affidavits should be regarded
as expenses ailing within these rules but not penalty paid on unstamped
documents. The legal practitioner who is to
be proceed to a place other than his permanent residence for the conduct of a
case under these rules, shall be entitled to travelling allowance and daily
allowance at the rates as are admissible to an officer of the State Government
of the Second Class. The Legal practitioner engaged to
conduct case shall be expected to appear if necessary in the court o first
appeal without additional remuneration. Nothing in this rule, however, shall be
regarded him to appear before the High Court. No assistance for appeal shall be
given unless the Law Department agrees to the appeal being preferred or
considers pending appeal worth contesting. If any costs are awarded by courts
to such soldier, they will be credited to the State account. The Legal practitioner engaged for
defending the soldier shall send his bill to the Sub-Divisional officer showing
separately the following:- (i)
Date of decision and the result of the case. (ii)
Fees settled under rule 6 (in case of legally taxable fees memo of costs
obtainable from the court should be attached). (iii)
Travelling expenses claimed under rule 8. - The Legal practitioner shall
submit his claim for travelling expenses in the form prescribed by the
Government for Government servants. (iv)
Incidental expenses claimed under rule 7 (a memo signed by the Legal
practitioner specifying the kind of memo filed and fee paid thereon will be
sufficient). (v)
Separate bill will be prepared by the Legal practitioner for separate
cases. The Sub-Divisional officer will be the sanctioning, drawing and
disbursing officer for these expenses and will maintain proper record. (i)
A grant of assistance under these rules shall be
absolutely at the discretion of the Sub-Divisional officer. The Sub-Divisional
officer may refuse to sanction an application for grant but he will assign
reasons therefor. The Collector may be approached to revise the orders. (ii)
Notifications;-[Notification No.F. 6(
126) Revenue B/62, dated 15-2-1963, Published in Rajasthan Gazette
Extraordinary Part IV-C, Supplementary No. 1 dated 4-4-1963.] (iii) In exercise of the powers
conferred by section 14 of the Indian Soldiers (Litigation) Act, 1925 (Central
Act No.4 of 1925), the State Government hereby directs that all the provisions
of the said Act shall apply to the Rajasthan Armed Constabulary Personnel
stationed outside Rajasthan in connection with the present National Emergency
in the same manner as the said provisions apply to soldiers covered by the
Government of India, Ministry of Defence's notification No. S.R.O 3 E. dated
the 15th November, 1962.The Rajasthan
Legal Assistance (Indian Soldiers) Rules, 1971