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2017 DIGILAW 123 (PAT)

Ratnesh Kumar Singh v. State of Bihar

2017-01-25

JYOTI SARAN

body2017
JUDGMENT : Jyoti Saran, J. 1. Heard 'earned counsel for the petitioners, Mr. Shashi Shekhar Kumar Prasad, learned Assisting Counsel to Principal Additional Advocate General No. 2 for the State and Mr. Bindhyachal Singh, learned counsel who appears for the Patna High Court as well as the Bihar State Legal Services Authority. The petitioners in this writ petition are practising Advocates of this Court and the writ petition while espousing the individual grievance is also filed in representative capacity as the relief so prayed by the petitioners herein would be covering the cases of other mediators as well, whether practising in this Court or the courts below. 2. The limited grievance raised by learned counsel for the petitioners is that although they have been providing assistance to the courts as trained mediators and though they are duly qualified as such but neither the Bihar State Legal Services Authority (hereinafter referred to as 'the Legal Services Authority'), nor the State has taken any steps to ensure that they are properly recompensed for their services. In other words, the grievance of the petitioners in this writ petition is that although on principle the courts as well as 'the Legal Services Authority' have decided on payment of fee to the mediators for the service rendered by them but the actual payment has evaded the mediators. The second relief prayed by the petitioners is for direction to 'the Legal Services Authority' for recommending their respective names for accreditation to the Mediation and Conciliation Project Committee, Supreme Court of India, New Delhi. 3. Learned counsel for the petitioners in support of the relief prayed, has taken this Court through the provisions underlying Section 89 of the Code of Civil Procedure, the rules underlying the Bihar Civil Procedure (Mediation) Rules, 2008 and the different administrative orders issued by 'the Legal Services Authority' from time to time on the issue of fee including a gazette publication which has been placed on record vide Annexure-13 to the interlocutory application bearing I.A. No. 241 of 2016 filed on 11.1.2016 which contains a notification dated 8.7.2015 of the Bihar State Legal Services Authority and inter alia amends Regulation-1 of the Bihar State Legal Services Regulation, 1998 framed under the Legal Services Authority Act, 1987. 4. 4. It is submitted that the scale of fee has been provided under regulation 25 for each mediation whether carried out at the level of the High Court or the district courts. He submits that while Section 3A of the amendment provides for a mediation fee of Rs. 3,000/- for each mediation before the High Court, Section 3B' provides for mediation fee before the district courts and other Executive courts. It is submitted that mediators are to be paid @ Rs. 1,500/- per mediation before the district court; @ of Rs. 1000/- per mediation before the Collector or the Additional Collector and @ Rs. 700/- per mediation before the Executive Magistrates/Magistrates. He submits that though the notification dated 8.7.2015 has been published in Bihar Gazette (Extraordinary) on 21.7.2015 admitting to the scale of fee payable to the trained mediators before different forum but the relief evades the mediators. 5. There is no dispute on the fact that until the amendment of 21.7.2015, any payment to the mediators, was entirely at the discretion of the court concerned because the services were rendered voluntarily. It is recognizing the need of the mediators and the legislative intent of section 89 that it was thought of by the legislature to provide for payment of a fee to these mediators at every level of mediation and which is confirmed by the notification published in the Bihar Gazette (extraordinary) on 21.7.2015. Though counsel for the petitioners has endeavoured to argue that an enhancement in the rate of fee, is also amidst discussion but in my opinion, until such time that a discussion in this regard takes form of a statutory obligation, it cannot be legally enforced. As of today, the grievance raised by the petitioners hinges on the gazette publication present at Annexure-13 which undisputedly provides for payment of fee to the mediators. Even though these mediators have approached the Court with some kind of representation enclosed in the proceedings but undisputedly no individual claim for fee or for accreditation has been raised by the petitioners before the appropriate authority which, according to Mr. Bindhyachal Singh, learned counsel for 'the Legal Services Authority' would be the Chairman, Bihar State Legal Services Authority. 6. Even though these mediators have approached the Court with some kind of representation enclosed in the proceedings but undisputedly no individual claim for fee or for accreditation has been raised by the petitioners before the appropriate authority which, according to Mr. Bindhyachal Singh, learned counsel for 'the Legal Services Authority' would be the Chairman, Bihar State Legal Services Authority. 6. Counsel for the State on his part submits that since no proposal has been received from 'the Legal Services Authority' for release of funds for payment of fee to the petitioners, it has not been acted upon. 7. Having heard learned counsel for the parties and in the circumstances existing as taken note of above and considering that the grievances raised herein have not been addressed to the appropriate authority i.e. the Chairman, Bihar State Legal Services Authority by the petitioners, I deem it fit and proper to dispose of the writ petition with a liberty to the petitioner-mediators to raise their grievance on the issue of fee and accreditation together with papers supporting their entitlement of fee/accreditation and the details of their appearance in the mediations and it goes without saying that any such grievance being raised would be considered and disposed of by the Chairman, Bihar State Legal Services Authority, who may either by himself or through any person duly authorised in this behalf, would consider and dispose of the claim of the petitioners and since it concerns the mediators who are practising Advocates of this Court a disposal preferably within three months from the date of raising of the claim would serve the purpose. The writ petition and the interlocutory applications are disposed of accordingly.