Promulgated by the Governor of Kerala in the Sixtieth Year of the Republic of India.
further to amend the Kerala Advocates’ Welfare Fund Act, 1980.
Preamble. – WHEREAS, the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2008 (18 of 2008) was promulgated by the Governor of Kerala on the 10th day of June, 2008;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State of Kerala, during its session which commenced on the 23rd day of June, 2008 and ended on the 24th day of July, 2008;
AND WHEREAS, in order to keep alive the provisions of the said Ordinance, the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2008 (28 of 2008) was promulgated by the Governor of Kerala on the 1st day of August, 2008;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State of Kerala during its session which commenced on the 24th day of November, 2008 and ended on the 18th day of December, 2008;
AND WHEREAS, in order to keep alive the provisions of the said Ordinance, the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2009 (4 of 2009) was promulgated by the Governor of Kerala on the 3rd day of January, 2009;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State of Kerala during its session which commenced on the 13th February, 2009 and ended on the 3rd March, 2009;
AND WHEREAS, in order to keep alive the provisions of the said Ordinance, the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2009 (10 of 2009) was promulgated by the Governor of Kerala on the 26th day of March, 2009;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State of Kerala during its session which commenced on the 22nd day of June, 2009 and ended on the 24th day of July, 2009;
AND WHEREAS, in order to keep alive the provisions of the said Ordinance, the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2009 (16 of 2009) was promulgated by the Governor of Kerala on the 1st day of August, 2009;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State of Kerala during its session which commenced on the 8th day of September, 2009 and ended on the 17th day of September, 2009;
AND WHEREAS, in order to keep alive the provisions of the said Ordinance, the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2009 (23 of 2009) was promulgated by the Governor of Kerala on the 19th day of October, 2009;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by the Legislative Assembly of the State of Kerala during its session which held on the 29th day of December, 2009;
AND WHEREAS, under sub clause (a) of clause (2) of Article 213 of the Constitution of India, the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2009 (23 of 2009) will cease to operate on the 9th day of February, 2010;
AND WHEREAS, difficulties will arise if the provisions of the said Ordinance are not kept alive;
AND WHEREAS, the Legislative Assembly of the State of Kerala is not in session and the Governor of Kerala is satisfied that circumstances exist which render it necessary for him to take immediate action;
NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor of Kerala is pleased to promulgate the following Ordinance: -
1. Short title and commencement. - (1) This Ordinance may be called the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2010.
(2) It shall be deemed to have come into force on the 10th day of June, 2008.
2. Act 21 of 1980 to be temporarily amended.-During the period of operation of this Ordinance, the Kerala Advocates’ Welfare Fund Act, 1980 (21 of 1980) (hereinafter referred to as the principal Act), shall have effect subject to the amendments specified in sections 3 to 12.
3. Amendment of section 2.- In section 2 of the principal Act,-
(i) clause (a) shall be numbered as clause (aa) and before clause (aa) so renumbered, the following clause shall be inserted, namely:-
“(a) “actual practice” means carrying on the profession of an Advocate and filing of at least 5 vakalath per year in case of Advocates other than Senior Advocates under the Advocates Act, 1961 (Central Act 25 of 1961).”;
(ii) in clause (aa) as so renumbered, the words “and who is a member of the Bar Association” shall be added at the end;
(iii) in clause (d),-
(a) after the words “on account of his retirement” the words “due to chronic ailment which permanently incapacitates him to carry on the profession of an Advocate” shall be added; and
(b) for the word “death”, the words “on completion of fifteen years of continuous membership” shall be substituted;
(iv) after clause (d), the following clause shall be inserted, namely:-
“(dd) “chronic ailment” means physical or mental ailment which incapacitates a lawyer to continue his
4.Amendment of section 3.-In sub-section (2) of section 3 of the principal Act, after clause (k), the following clause shall be inserted, namely:-
“(l) the sum repaid under clause (a) of rule 4 in Chapter 5 of the Bar Council of Kerala Rules.”.
5. Amendment of section 9.- In sub-section (2) of section 9 of the principal Act, after clause (g), the following clause shall be inserted, namely:-
“(gg) issue pass book with photograph to the members of the fund, on payment of such fee as may be fixed by the Trustee Committee from time to time.”.
6.. Amendment of section 11.-In section 11 of the principal Act, after clause (h), the following clause shall be inserted, namely:-
“(hh)issue duplicate copy of membership certificate in lieu of original to members on payment of such charges as may be fixed by the Trustee Committee from time to time.”.
7. Amendment of section 14.-After sub-section (2) of section 14 of the principal Act, the following sub-sections shall be inserted, namely:-
“(3) Every Bar Association shall receive subscriptions mentioned in sub-section (5) of section 15 from its members who are in active practice and remit the same to the fund forthwith.
(4) Every Bar Association shall issue certificates of recommendations as stated in sub-section (6) of section 15 to its members on request made to that effect:
Provided that the Bar Association shall not issue any certificate of recommendation unless the Association is satisfied that the member is actively practising as an advocate.”.
8. Amendment of section15. - In section 15 of the principal Act,-
(i) in sub-section (1a), after the words “after retirement”, the words “or resignation” shall be inserted;
(ii)after sub-section (1a), the following sub-section shall be inserted, namely:-
“(1b) A person who received retirement benefit from the fund shall not be admitted as member of the fund.”;
(iii)in sub- section (3), for the words “three hundred”, the words “five hundred” shall be substituted;
(iv) for sub- section (5), the following sub-section shall be substituted, namely: -
“(5) Every member shall pay 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 three hundred rupees
Bar is less than five years.
(ii)Where the standing of the Advocate seven hundred and
at the Bar is five years and more but fifty rupees
less than ten years
(iii)Where the standing of the Advocate one thousand and
at the Bar is ten years and more but five hundred rupees
less than fifteen years
(iv)Where the standing of the Advocate two thousand rupees
at the Bar is fifteen years and more but
less than twenty years
(v)Where the standing of the Advocate two thousand and
at the Bar is twenty years and more but five hundred rupees
less than twenty five years
(vi)On or above twenty five years three thousand
rupees
Provided that an Advocate designated as Senior Advocate under the Advocates Act, 1961 (Central Act 25 of 1961), shall pay an annual subscription at the rate of five thousand rupees.”;
(v) after sub-section (5) of the principal Act, the following sub-sections shall be inserted, namely:-
“(6) The payment referred to in sub-section (5) shall be made through the Bar Association in which the contributor is a member or directly to the fund along with a letter of recommendation from the respective Bar Association.
(6A) All members of the fund shall furnish before the Trustee Committee every year, along with the payment of subscription, a declaration in such form as may be prescribed to the effect that he is in actual practice and not in any other employment and not engaged in any other profession or calling.”;
(vi) in sub-section (7), for the words “ at the rate of five rupees per month or part thereof”, the words “ at the rate of twelve per cent per annum” shall be substituted;
(vii) after sub-section (12), the following sub-section shall be inserted, namely:-
“(13) A member who voluntarily suspended his membership may resume his membership in the fund on payment of two thousand rupees as resumption charges, provided he had resumed his practice as an Advocate before the Bar Council.”.
9. Amendment of section 16.- In section 16 of the principal Act,-
(i) for sub- section (1), the following sub-section shall be substituted, namely :-
“(1) A member of the fund shall on cessation of practice be entitled to receive from out of the fund an amount at the rate specified in the schedule for every completed year of practice till the commencement of the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2010 (3 of 2010) and thereafter at the rate of fourteen thousand two hundred and eighty five rupees for every completed year of practice subject to a maximum amount of five lakh rupees in aggregate:
Provided that a member who opts retirement benefits before the completion of fifteen years of continuous membership in the fund shall be entitled to receive the aggregate of the subscription remitted by him to the fund with interest at the rate of six percent thereof, except in the case of cessation due to chronic ailment.”;
(ii) In sub section (2A), after the words “ or an amount of two lakh rupees whichever is higher”, the words “for every completed year of practice till the commencement of the Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2010 (3 of 2010) and thereafter at the rate of fourteen thousand two hundred and eighty five rupees for every completed year of practice subject to a maximum amount of five lakh rupees in aggregate” shall be inserted;
(iii) in clause (i) of sub- section (4), for the words, brackets and figure “sub-section (1)”, the words, brackets and figures “sub-sections (1) and (2)” shall be substituted;
(iv) sub sections (5) and (5A) shall be omitted;
(v)after sub-section (7), the following sub-section shall be inserted, namely:-
“(8) The person who had availed the entire welfare fund benefit and thereafter remitted that amount with interest in the welfare fund as per item (a) of rule 4 of Chapter 5 of the Bar Council of Kerala Rules shall be eligible for refund of such amount with six per cent interest from the date of remittance on his cessation of practice or death:
Provided that in the event of death of the remitter the amount shall be paid to the nominee or where there is no nominee to his legal heirs.”.
10 .Amendment of section 18.-In clause (b) of section 18 of the principal Act, for the words “and their dependents”, the words “a maximum amount of five thousand rupees” shall be substituted.
11. Amendment of section 22. - In section 22 of the principal Act,-
(i) in sub-section (1), for the words “ five rupees and ten rupees”, the words “fifteen rupees and twenty five rupees” shall be substituted.
(ii) in sub-section (4), after the words “through Bar Associations”, the words “or through the outlets setup by the Bar Council for the purpose” shall be added.
12. Amendment of Section 23. –In sub-section (1) of section 23 of the principal Act,-
(i) the words “who is a member of the fund” shall be omitted;
(ii) for the words “fifteen rupees“ and “ten rupees”, the words “twenty five rupees” and “fifteen rupees” shall respectively be substituted;
(iii) after the existing proviso, the following proviso shall be added, namely: -
“Provided further that no Court, Tribunal or other Authority shall receive any vakalath filed by an Advocate unless it is so stamped, and that any person found to be responsible for causing loss to the fund may be held liable for making good such loss.”.
13. Repeal and Saving.- (1) The Kerala Advocates’ Welfare Fund (Amendment) Ordinance, 2009 (23 of 2009), is hereby repealed.
(2) Notwithstanding such repeal, anything done or deemed to have been done or any action taken or deemed to have been taken under the principal Act as amended by the said Ordinance shall be deemed to have been done or taken under the principal Act, as amended by this Ordinance.