Master of Philosophy Vs Doctor of Philosophy

The Master of Philosophy (MPhil) entails the writing of a supervised thesis of up to 30,000 words, as well as completing a course in legal research method.

The MPhil is a three-term full-time programme with a usual residence requirement for three terms from the date of admission. The MPhil thesis must make a worthwhile contribution to knowledge and or understanding in its field.

The Doctor of Philosophy (DPhil) is the Faculty’s most advanced research qualification and entails writing a thesis of between 75,000 and 100,000 words, which must make a significant and substantial contribution to its field.

Full-time study for the DPhil usually comprises three to four years and part-time six to eight years, inclusive of research methodology training in the first year for full-time students and over years one and two for part-time students. The part-time study requires attendance for a minimum of 30 days of university-based work each year, normally coinciding with the full terms of the academic year.

Collegiate university

A collegiate university, which means it is made up of self-governing, independent colleges. All students are a member of a college. Colleges provide students with an ideal opportunity for interaction with peers from different academic disciplines, countries and backgrounds, as well as a place to get involved in clubs, sports and cultural activities, socialise, eat and sometimes live.

In a collegiate university, colleges are very important in admissions and teaching provision for undergraduate students, it is the Faculty that manages the admissions process and provides the teaching for graduate students.

Law Of Contract

(a) The rules relating to the formation of agreements and to certain further requirements which must be satisfied to make agreements legally enforceable;

(b) The contents of a contract and the rules governing the validity of terms which exclude or restrict liability and unfair terms in consumer contracts;

(c) The nature and effects in a contractual context of mistake, misrepresentation, duress and undue influence;

(d) The general principle that right and duties arising under a contract can only be enforced by and against the parties to it and its main exceptions;

(e) Performance and breach, including the right to terminate for failure in performance and the effects of wrongful repudiation;

(f) Supervening events as a ground of discharge under the doctrine of frustration;

(g) Remedies for breach of contract by way of damages, action for the agreed sum, specific performance and injunction.

(h) The basis of contractual liability.


Adapted  From: The Faculty of Law University of Oxford

The National Population Register (NPR) is a Register of usual residents of India

PAKISTAN OR THE PARTITION OF INDIA

A. Introduction

1. The National Population Register (NPR) is a Register of usual residents of the country. It is being prepared at the local (Village/sub-Town), sub-District, District, State and National level under provisions of the Citizenship Act 1955 and the Citizenship (Registration of Citizens and issue of National Identity Cards) Rules, 2003. It is mandatory for every usual resident of India to register in the NPR. A usual resident is defined for the purposes of NPR as a person who has resided in a local area for the past 6 months or more or a person who intends to reside in that area for the next 6 months or more.

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THE CITIZENSHIP (AMENDMENT) BILL 2019

Bill No. 370 of 2019

AS INTRODUCED IN LOK SABHA

THE CITIZENSHIP (AMENDMENT) BILL, 2019

A
BILL

further to amend the Citizenship Act, 1955.

BE it enacted by Parliament in the Seventieth Year of the Republic of India as  follows:—

1. (1) This Act may be called the Citizenship (Amendment) Act, 2019.

(2) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint.

2. In the Citizenship Act, 1955 (hereinafter referred to as the principal Act), in section 2, in sub-section (1), in clause (b), the following proviso shall be inserted, namely:—

“Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or
Christian community from Afghanistan, Bangladesh or Pakistan, who entered into
India on or before the 31st day of December, 2014 and who has been exempted by the
Central Government by or under clause (c) of sub-section (2) of section 3 of the
Passport (Entry into India) Act, 1920 or from the application of the provisions of the
Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as
illegal migrant for the purposes of this Act;”.

3. After section 6A of the principal Act, the following section shall be inserted, namely:—

‘6B. (1) The Central Government or an authority specified by it in this behalf may, subject to such conditions, restrictions and manner as may be prescribed, on an application made in this behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the proviso to clause (b) of sub-section (1) of section 2.

(2) Subject to fulfilment of the conditions specified in section 5 or the qualifications for naturalisation under the provisions of the Third Schedule, a person granted the certificate of registration or certificate of naturalisation under sub-section (1) shall be deemed to be a citizen of India from the date of his entry into India.

(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2019, any proceeding pending against a person under this section in respect of illegal migration or citizenship shall stand abated on conferment of citizenship to him:

Provided that such person shall not be disqualified for making application for citizenship under this section on the ground that the proceeding is pending against him and the Central Government or authority specified by it in this behalf shall not reject his application on that ground if he is otherwise found qualified for grant of citizenship under this section:

Provided further that the person who makes the application for citizenship under this section shall not be deprived of his rights and privileges to which he was entitled on the date of receipt of his application on the ground of making such application.

(4) Nothing in this section shall apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified under the Bengal Eastern Frontier Regulation, 1873.’

4. In section 7D of the principal Act,—

(i) after clause (d), the following clause shall be inserted, namely:—

“(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or provisions of any other law for time being in force as may be specified by the Central Government in the notification published in the Official Gazette; or”.

(ii) after clause (f), the following proviso shall be inserted, namely:—

“Provided that no order under this section shall be passed unless the Overseas Citizen of India Cardholder has been given a reasonable opportunity of being heard.”.

5. In section 18 of the principal Act, in sub-section (2), after clause (ee), the following clause shall be inserted, namely:—

“(eei) the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B;”.

6. In the Third Schedule to the principal Act, in clause (d), the following proviso shall be inserted, namely:—

‘Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of Government in India as required under this clause shall be read as “not less than five years” in place of “not less than eleven years”.’.

STATEMENT OF OBJECTS AND REASONS

The Citizenship Act, 1955 (57 of 1955) was enacted to provide for the acquisition and determination of Indian citizenship.

2. It is a historical fact that trans-border migration of population has been happening continuously between the territories of India and the areas presently comprised in Pakistan, Afghanistan and Bangladesh. Millions of citizens of undivided India belonging to various faiths were staying in the said areas of Pakistan and Bangladesh when India was partitioned in 1947. The constitutions of Pakistan, Afghanistan and Bangladesh provide for a specific state religion. As a result, many persons belonging to Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have faced persecution on grounds of religion in those countries. Some of them also have fears about such persecution in their day-to-day life where right to practice, profess and propagate their religion has been obstructed and restricted. Many such persons have fled to India to seek shelter and continued to stay in India even if their travel documents have expired or they have incomplete or no documents.

3. Under the existing provisions of the Act, migrants from Hindu, Sikh, Buddhist, Jain, Parsi or Christian communities from Afghanistan, Pakistan or Bangladesh who entered into India without valid travel documents or if the validity of their documents has expired are regarded as illegal migrants and ineligible to apply for Indian citizenship under section 5 or section 6 of the Act.

4. The Central Government exempted the said migrants from the adverse penal consequences of the Passport (Entry into India) Act, 1920 and the Foreigners Act, 1946 and rules or orders made thereunder vide notifications, dated 07.09.2015 and dated 18.07.2016. Subsequently, the Central Government also made them eligible for long term visa to stay in India, vide, orders dated 08.01.2016 and 14.09.2016. Now, it is proposed to make the said migrants eligible for Indian Citizenship.

5. The illegal migrants who have entered into India up to the cut of date of 31.12.2014 need a special regime to govern their citizenship matters. For this purpose the Central Government or an authority specified by it, shall grant the certificate of registration or certificate of naturalisation subject to such conditions, restrictions and manner as may be prescribed. Since many of them have entered into India long back, they may be given the citizenship of India from the date of their entry in India if they fulfil conditions for Indian citizenship specified in section 5 or the qualifications for the naturalisation under the provisions of the Third Schedule to the Act.

6. The Bill further seeks to grant immunity to the migrant of the aforesaid Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities so that any proceedings against them regarding in respect of their status of migration or citizenship does not bar them from applying for Indian citizenship. The competent authority, to be prescribed under the Act, shall not take into account any proceedings initiated against such persons regarding their status as illegal migrant or their citizenship matter while considering their application under section 5 or section 6 of the Act, if they fulfil all the conditions for grant of citizenship.

7. Many persons of Indian origin including persons belonging to the said minority communities from the aforesaid countries have been applying for citizenship under section 5 of the Citizenship Act, 1955 but they are unable to produce proof of their Indian origin. Hence, they are forced to apply for citizenship by naturalisation under section 6 of the said Act, which, inter alia, prescribe twelve years residency as a qualification for naturalisation in terms of the Third Schedule to the Act. This denies them many opportunities and advantages that may accrue only to the citizens of India, even though they are likely to stay in India permanently. Therefore, it is proposed to amend the Third Schedule to the Act to make applicants belonging to the said communities from the aforesaid countries eligible for citizenship by naturalisation if they can establish their residency in India for five years instead of the existing eleven years.

8. Presently, there is no specific provision in section 7D of the Act to cancel the registration of Overseas Citizen of India Cardholder who violates any provisions of the Act or any other law for the time being in force. It is also proposed to amend the said section 7D so as to empower the Central Government to cancel registration as Overseas Citizen of India Cardholder in case of violation of any provisions of the Act or any other law for the time being in force.

9. Since there is no specific provision in the Act at present to provide an opportunity of being heard to the Overseas Citizen of India Cardholder before cancellation of the Overseas Citizen of India Card under section 7D, it is proposed to provide the opportunity of being heard to the Overseas Citizen of India Cardholder before the cancellation of the Overseas Citizen of India Card.

10. The Bill further seeks to protect the constitutional guarantee given to indigenous populations of North Eastern States covered under the Sixth Schedule to the Constitution and the statutory protection given to areas covered under “The Inner Line” system of the Bengal Eastern Frontier Regulation, 1873.

11. The Bill seeks to achieve the above objectives.

NEW DELHI; AMIT SHAH.

The 4th December, 2019.

MEMORANDUM REGARDING DELEGATED LEGISLATION

Clause 5 of the Bill seeks to insert a new clause (eei) in sub-section (2) of section 18 of the Citizenship Act, 1955 so as to empower the Central Government to make rules to provide the conditions, restrictions and manner for granting certificate of registration or certificate of naturalisation under sub-section (1) of section 6B of the said Act.

2. The matters in respect of which the aforementioned rules may be made are matters of procedure and it is not practicable to provide for them in the Bill itself. The delegation of legislative power is, therefore, of a normal character.

(Shri Amit Shah, Minister of Home Affairs)

MGIPMRND—4109LS(S3)—06-12-2019.

THE SPECIAL PROTECTION GROUP (AMENDMENT) BILL 2019

LOK SABHA – A Bill further to amend the Special Protection Group Act, 1988.

As passed by Lok Sabha

THE SPECIAL PROTECTION GROUP (AMENDMENT) BILL, 2019
A
BILL
further to amend the Special Protection Group Act, 1988.

BE it enacted by Parliament in the Seventieth Year of the Republic of India as follows:—

1. (1) This Act may be called the Special Protection Group (Amendment) Act, 2019.

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. In section 4 of the Special Protection Group Act, 1988,—

(i) for sub-section (1), the following sub-section shall be substituted, namely:—

“(1) There shall be an armed force of the Union called the Special Protection Group for providing proximate security to,—
(a) the Prime Minister and members of his immediate family residing with him at his official residence; and

(b) any former Prime Minister and such members of his immediate family as are residing with him at the residence alloted to him, for a period of five years from the date he ceases to hold the office of Prime Minister.”;

(ii) in sub-section (1A), for clause (b), the following clause shall be substituted, namely:—

“(b) where the proximate security is withdrawn from a former Prime Minister, such proximate security shall also stand withdrawn from members of immediate family of such former Prime Minister.”.


AS PASSED BY LOK SABHA ON 27.11.2019

Advocates Act 1989

Laws of Kenya

Arrangement of Sections

PART I – PRELIMINARY

PART II – THE COUNCIL OF LEGAL EDUCATION

PART III – PROVISIONS RELATING TO THE RIGHT TO PRACTISE AS AN ADVOCATE

PART IV – ADMISSION AS ADVOCATE

PART V – SENIOR COUNSEL

PART VI – PRECEDENCE

PART VII – PRACTISING CERTIFICATE

PART VIII – PROVISIONS WITH RESPECT TO UNQUALIFIED PERSONS ACTING AS ADVOCATES AND OFFENCES BY ADVOCATES

PART IX – REMUNERATION OF ADVOCATES

PART X – COMPLAINTS COMMISSION

PART XI – DISCIPLINE

PART XII – MISCELLANEOUS PROVISIONS

FIRST SCHEDULE [Section 3(2) (now repealed).]

SECOND SCHEDULE [Section 86(2).]

Subsidiary Legislation

Date of commencement: Section 32— 1st January, 2000. ] [ Date of assent:13th December, 1989. ]   Subsidiary Legislation

 
PART I – PRELIMINARY
1.
Short title

This Act may be cited as the Advocates Act.

2.
Interpretation

In this Act, unless the context otherwise requires—

“advocate” means any person whose name is duly entered upon the Roll of Advocates or upon the Roll of Advocates having the rank of Senior Counsel and, for the purposes of Part IX, includes any person mentioned in section 10;
 
“annual licence” deleted by Act No. 9 of 2000, s. 56;
 
“client” includes any person who, as a principal or on behalf of another, or as a trustee or personal representative, or in any other capacity, has power, express or implied, to retain or employ, and retains or employs, or is about to retain or employ an advocate and any person who is or may be liable to pay to an advocate any costs;
 
“contentious business” means any business done by an advocate in any court, civil or military, or relating to proceedings instituted or intended to be instituted in any such court, or any statutory tribunal or before any arbitrator or panel of arbitrators;
 
“costs” includes fees, charges, disbursements, expenses and remuneration;
 
“Court” means the High Court;
 
“Disciplinary Tribunal” means the Disciplinary Tribunal established under section 57;
 
“non-contentious business” means any business done by an advocate other than contentious business;
 
“practising certificate” means a certificate issued under section 21;
 
“Registrar” means the Registrar of the Court;
 
“Roll” means, as the case may require, the Roll of Advocates kept under section 16 or the Roll of Advocates having the rank of Senior Counsel under this Act;
 
“Senior Counsel” means an advocate upon whom the President has conferred the rank of Senior Counsel;
 
“the Council of Legal Education” means the Council of Legal Education established by section 3 of the Council of Legal Education Act, 1995 (Cap. 16A);
 
“the Council of the Society” means the Council of the Society elected under section 13 of the Law Society of Kenya Act (Cap. 18);
 
“the Society” means the Law Society of Kenya established under the Law Society of Kenya Act (Cap. 18);
 
“unqualified person” means a person who is not qualified under section 9 and includes an advocate who—
(a) is not qualified under section 9;
(b) is not exempt under section 10; and
(c) fails to take out a practising certificate.

 

[Act No. 7 of 1990, Sch., Act No. 12 of 1995, s. 21, Act No. 9 of 2000, s. 56, Act No. 12 of 2012, Sch., Act No. 11 of 2017, Sch.]
PART II – THE COUNCIL OF LEGAL EDUCATION
3 to 8

Repealed by Act No. 12 of 1995, s. 21.

 
PART III – PROVISIONS RELATING TO THE RIGHT TO PRACTISE AS AN ADVOCATE
9.
Qualifications for practising as an advocate

Subject to this Act, no person shall be qualified to act as an advocate unless—

(a)

he has been admitted as an advocate; and

(b)

his name is for the time being on the Roll; and

(c)

he has in force a practising certificate;

(d)

deleted by Act No. 9 of 2000, s. 57,

and for the purpose of this Act a practising certificate shall be deemed not to be in force at any time while he is suspended by virtue of section 27 or by an order under section 60(4).

[Act No. 7 of 1990, Sch., Act No. 9 of 2000, s. 57.]
10.
Certain officers entitled to act as advocates

Each of the following persons shall, if he holds one of the qualifications specified in paragraphs (a), (b) and (c) of section 13(1) at the time of his appointment to his office, be entitled in connection with the duties of his office to act as an advocate, and shall not to that extent be deemed to be an unqualified person, that is to say—

(a)

an officer in the office of the Attorney-General or the office of the Director of Public Prosecutions;

(b)

the Principal Registrar of Titles and any Registrar of Titles; or

(c)

any person holding office in a local authority established under the Local Government Act, (Cap. 265).

(d)

such other person, being a public officer or an officer in a public corporation, as the Attorney-General may, by notice in the Gazette, specify:

Provided that the officers referred to in this section shall not be entitled to charge fees for so acting.

[Act No. 7 of 2007, Sch., Act No. 12 of 2012, Sch.]
11.
Foreign advocates
(1)

The Attorney-General may, in his absolute discretion, admit to practise as an advocate, for the purpose of any specified suit or matter in or in regard to which the person so admitted has been instructed by the Attorney-General or an advocate, a practitioner who is entitled to appear before superior courts of a Commonwealth country, if such person has come or intends to come to Kenya for the purpose of appearing, acting or advising in that suit or matter and is not disqualified or suspended by virtue of this Act, and a person so admitted (hereinafter in this section referred to as a “foreign advocate”) shall not, for the purpose of that suit or matter, be deemed to be an unqualified person.

(2)

No foreign advocate shall be entitled to practise until he has paid to the Registrar the prescribed admission fee.

(3)

No foreign advocate shall be entitled to practise unless he is instructed by, and if appearing in court appears with, an advocate or any person mentioned in section 10, nor shall any foreign advocate be entitled to sign or file any pleadings in court.

(4)

Every foreign advocate shall, during and for the purposes of his admission, be deemed to be an advocate for the purposes of Parts VIII, IX, X, and XI:

Provided that in respect of a foreign advocate references in Part XI, or in any rules made under this Act, to the Disciplinary Committee shall be construed as references to the Chief Justice and references to striking the name of an advocate off the Roll shall be construed as references to disqualifying a foreign advocate from practice in Kenya.

(5)

Where a complaint under Part XI has been made in respect of a foreign advocate, the Chief Justice, in addition to the powers conferred upon him by that Part as modified by subsection (4), shall have power, in his discretion at the instance of the complainant or of the Council of the Society, to suspend immediately such foreign advocate from practice in Kenya pending the dismissal of the complaint or the making of a final order in respect thereof.

PART IV – ADMISSION AS ADVOCATE
12.
Qualification for admission as advocate

Subject to this Act, no person shall be admitted as an advocate unless—

(a)

he is a citizen of Kenya, Rwanda, Burundi, Uganda or Tanzania; and

(b)

he is duly qualified in accordance with section 13.

[Act No. 2 of 2002, Sch., Act No. 12 of 2012, Sch.]
13.
Professional and academic qualifications
(1)

A person shall be duly qualified if—

(a)

having passed the relevant examinations of any recognized university in Kenya he holds, or has become eligible for the conferment of, a degree in law of that university; or

(b)

having passed the relevant examinations of such university, university college or other institution as the Council of Legal Education may from time to time approve, he holds, or has become eligible for conferment of, a degree in law in the grant of that university, university college or institution which the Council may in each particular case approve;

and thereafter both—

(i) he has attended as a pupil and received from an advocate of such class as may be prescribed, instruction in the proper business, practice and employment of an advocate, and has attended such course or tuition as may be prescribed for a period which in the aggregate including such instruction, does not exceed eighteen months; and
(ii) he has passed such examinations as the Council of Legal Education may prescribe; or
(c)

he possesses any other qualifications which are acceptable to and recognized by the Council of Legal Education;

(d)

he is an Advocate for the time being of the High Court of Uganda, the High Court of Rwanda, the High Court of Burundi or the High Court of Tanzania;

(e)

he is for the time being admitted as an advocate of the superior court of a country within the Commonwealth and—

(i) has practised as such in that country for a period of not less than five years; and
(ii) is a member in good standing of the relevant professional body in that country:

Provided that the Council may, in addition, require that a person to whom this paragraph applies undergo such training, for a period not exceeding three months, as the Council may prescribe for the purpose of adapting to the practice of law in Kenya.

(2)

The Council of Legal Education may exempt any person from any or all of the requirements prescribed for the purposes of paragraph (i) or paragraph (ii) of subsection (1) upon such conditions, if any, as the Council may impose.

[Act No. 2 of 2002, Sch., Act No. 7 of 2007, Sch., Act No. 12 of 2012, Sch.]
14.
Attorney-General and the Director of Public Prosecutions may take pupils

The Attorney-General and the Director of Public Prosecutions may take pupils in accordance with section 13 and in this Part and in any regulations “advocate”, in the context of pupillage, includes the Attorney-General and the Director of Public Prosecutions.

[Act No. 12 of 2012, Sch.]
15.
Admission as an advocate
(1)

Every person who is duly qualified in accordance with this Part may apply for admission as an advocate, and the application shall be made by petition in the prescribed form, verified by oath or statutory declaration addressed to the Chief Justice, and filed with the Registrar together with a notice intimating that the petition has been so filed together with such other documents as may be prescribed and the applicant shall also deliver a copy of the petition and of any document delivered therewith to the secretary of the Council of Legal Education and to the secretary of the Society.

(2)

The notice referred to in subsection (1) shall be publicly exhibited by the Registrar for one month before any order shall be made on the petition.

(3)

Every petition made under this section shall be heard by the Chief Justice in chambers within ninety days of the expiry of the period referred to in subsection (2), and the Council of Legal Education and the Society shall have the right to be heard thereon; and, if the Chief Justice is satisfied as to the qualifications, service and moral fitness of the petitioner, he shall adjourn the hearing into open court and shall order that the petitioner be admitted as an advocate:

Provided that any period during which the High Court is on vacation shall be excluded when calculating the period of ninety days referred to in subsection (3).

(4)

On an order being made under subsection (3), and after payment by the petitioner to the Registrar of the prescribed fee, the petitioner shall take an oath or make an affirmation as an officer of the Court before the Chief Justice in such form as he shall require, and shall thereafter sign the Roll in the presence of the Registrar or a Deputy Registrar who shall add his signature as witness.

(5)

All reports, records and communications made under or in connection with this section shall be absolutely privileged.

[Act No. 27 of 2012, s. 50.]
16.
Custody of Roll

The Registrar shall keep the Roll of Advocates in accordance with this Act and any directions as to its form and the information to be recorded as the Chief Justice may give, and shall allow any person to inspect the Roll during office hours without payment.

PART V – SENIOR COUNSEL
17.
Senior Counsel
(1)

The President may grant a letter of conferment to any person of irreproachable professional conduct who has rendered exemplary service to the legal and public service in Kenya conferring upon him the rank and dignity of Senior Counsel.

(2)

A person shall not be eligible to be a Senior Counsel unless—

(a)

he is a duly enrolled advocate of the High Court of not less than fifteen years’ standing; or

(b)

being a person to whom section 10 applies, he holds, and has held for a continuous period of not less than fifteen years, one or other of the qualifications specified in section 13(1).

(3)

The grant shall be made not later than sixty days upon receipt of a list of names submitted by the Committee on Senior Counsel through the Chief Justice.

[Act No. 6 of 2009, Sch.]
18.
Roll of Senior Counsel
(1)

Upon the commencement of this Act, the Registrar shall cause to be prepared, and shall thereafter maintain, a Roll of Advocates having the rank of the Senior Counsel (hereinafter called “the Roll of Senior Counsel”) in accordance with this Part and any directions as to its form and the information to be recorded as the Chief Justice may give, and shall allow any person to inspect the Roll during office hours without payment.

(2)

There shall be entered in the Roll of Senior Counsel the names of all persons having the rank thereof in accordance with this Part.

(3)

Every person upon whom the rank of Senior Counsel has been conferred shall sign the Roll of Senior Counsel in the presence of the Registrar, and the Registrar shall add his signature as a witness.

(4)

The Chief Justice shall cause to be published in the Gazette the names of the advocates upon whom the rank of Senior Counsel is conferred.

[Act No. 6 of 2009, Sch.]
19.
Application of Part XI

In the application of Part XI to Senior Counsel—

(a)

all references therein to the Disciplinary Committee shall be construed as references to a Committee of three, to be appointed in each case by the Chief Justice, consisting of the Attorney-General or the Solicitor-General and two Senior Counsel and the Attorney-General or Solicitor-General shall be chairman of the Committee;

(b)

the secretary to the Disciplinary Committee shall perform the duties of secretary to any such committee; and

(c)

subsections (2) and (3) of section 57 shall not have effect.

PART VI – PRECEDENCE
20.
Precedence

The Attorney-General, the Director of Public Prosecutions, the Solicitor-General, Senior Counsel or Queen’s Counsel according to the date of their appointment as such, the chairman and the vice-chairman (if not a Senior Counsel) of the Society shall, in that order, take precedence of advocates who, inter se, shall take precedence according to the date upon which they signed their names on the Roll.

[Act No. 12 of 2012, Sch.]
PART VII – PRACTISING CERTIFICATE
21.
Registrar to issue practising certificates

The Registrar shall issue in accordance with, but subject to, this Part and any rules made under this Act certificates authorizing the advocates named therein to practise as advocates.

[Act No. 7 of 1990, Sch., Act No. 9 of 2000, ss. 58, 59.]
22.
Application for and issue of practising certificate
(1)

Application for a practising certificate shall be made to the Registrar—

(a)

by delivering to him an application in duplicate, signed by the applicant specifying his name and place of business, and the date of his admission as an advocate;

(b)

by producing evidence satisfactory to the Registrar that the applicant has paid to the Society the fee prescribed for a practising certificate and the annual subscriptions payable for the time being to the Society and to the Advocates Benevolent Association; and

(c)

by producing a written approval signed by the Chairman of the Society stating that there is no objection to the grant of the certificate.

(2)

Subject to section 31, the Registrar, if satisfied that the name of the applicant is on the Roll and that he is not for the time being suspended from practice, shall within fourteen days of the receipt by him of the application issue to the applicant a practising certificate.

(3)

The Registrar shall cause one copy of each declaration delivered to him under this section to be filed in a register kept for that purpose, and any person may inspect the register during office hours without payment.

[Act No. 7 of 2007, Sch.]
23.
Issue of practising certificate to confer membership of Society
(1)

Every advocate to whom a practising certificate is issued under this Part shall thereupon and without payment of any further fee, subscription, election, admission or appointment, and notwithstanding anything contained in the Law Society of Kenya Act (Cap. 18) or in any regulations made thereunder, become a member of the Society and the Advocates Benevolent Association and be subject to any provision of law or rule of the Society and the Advocates Benevolent Association for the time being affecting the members thereof.

(2)

Every advocate who has become a member of the Society under this section shall remain a member until the end of one month after expiration of his practising certificate, unless his name, whether at his own request or otherwise, is removed from or struck off the Roll, whereupon he shall cease to be a member of the Society.

(2A)

The Society shall issue to every advocate registered with it a stamp or seal bearing the advocate’s name, admission number and the year of practice in such form as may be approved by the Council of the Society and prescribed in regulations, and such stamp or seal shall be affixed on every document drawn by such advocate and lodged for registration in any registry in Kenya or issued for any other professional purpose.

(3)

An advocate who has become a member of the Society under this section and who is suspended from practice shall not be entitled during the period of the suspension to any of the rights or privileges of such membership.

[Act No. 11 of 2017, Sch.]
24.
Date and validity of practising certificate
(1)

Every practising certificate shall bear the date of the day on which it is issued and shall have effect from the beginning of that day:

Provided that a practising certificate which is issued during the first month of any practising year shall have effect for all purposes from the beginning of that month.

(2)

The practising year shall be from the 1st January to 31st December:

Provided that the Council of the Society, with the approval of the Chief Justice, may by order alter the practising year, and the order may make such transitional provision in regard to incidental matters as may be expedient.

(3)

Every practising certificate shall expire at the end of the practising year in which it was issued:

Provided that, where the name of an advocate is removed from or struck off the Roll, the practising certificate (if any) of that advocate shall expire forthwith.

(4)

The Registrar shall enter upon the Roll a note of the date of the issue of every practising certificate.

25.
Discretion of Registrar to issue practising certificate in special cases
(1)

Subject to subsection (3) and to section 28(5), subsection (2) shall have effect where an advocate applies for a practising certificate—

(a)

when for twelve months or more he has ceased to hold a practising certificate in force; or

(b)

whilst he is an undischarged bankrupt or a receiving order in bankruptcy is in force against him; or

(c)

when, having been suspended from practice or having had his name removed from or struck off the Roll, the period of his suspension has expired or his name has been restored to the Roll, as the case may be; or

(d)

not having held a practising certificate in force within twelve months next following the date of his admission as an advocate; or

(e)

whilst he is a person to whom the powers and provisions of the Mental Health Act (Cap. 248) relating to management and administration apply; or

(f)

without having paid a penalty or costs ordered by the Disciplinary Committee to be paid by him; or

(g)

after having been adjudicated a bankrupt and obtained his discharge or after having entered into a composition with his creditors or a deed of arrangement for the benefit of his creditors; or

(h)

after having had given against him any judgment which involves the payments of moneys, not being a judgment—

(i) limited to the payment of costs; or
(ii) as to the whole effect of which upon him he is entitled to indemnity or relief from some other person; or
(iii) evidence of the satisfaction of which, within seven days of the giving of such judgment, has been produced to the Registrar.
(2)

The applicant shall give to the Registrar and to the secretary of the Society not less than six weeks before his application for a practising certificate notice of his intention to apply therefor.

(3)

The Council of the Society shall make representations or submit a recommendation to the Registrar with respect to any application made under this section, and any such representations shall be taken into account by the Registrar and shall be absolutely privileged.

(4)

The Registrar may in his discretion—

(i)

grant or refuse any application made under this section; or

(ii)

decide to issue a practising certificate to the applicant upon such terms and conditions as he may think fit;

and, where the Registrar decides to issue a certificate subject to conditions, he may, if he thinks fit, postpone the issue of the certificate pending the hearing and determination of any appeal under section 26(2):

Provided that in a case such as is mentioned in paragraph (b) or (h) of subsection (1), where on appeal has been made to the appropriate court against the order or judgment in question the Registrar shall not refuse the application before the determination of that appeal.

(5)

Where a practising certificate free of conditions is issued by the Registrar under subsection (2) to an advocate in relation to whom that subsection has effect by virtue of any of the particular circumstances mentioned in paragraphs (a), (c), (d), (g) and (h) of subsection (1), subsections (2), (3) and (4) shall not thereafter have effect in relation to that advocate by virtue of those circumstances.

[Act No. 7 of 2007, Sch.]
26.
Appeals in connection with issue of practising certificate
(1)

If in any case, not being a case to which section 25 applies, the Registrar on an application duly made to him refuses or neglects to issue a practising certificate the applicant may apply to the Chief Justice who may make such an order in the matter as is just.

(2)

Where under section 25 the Registrar either refuses to grant a practising certificate or decides to issue that certificate subject to terms and conditions, the applicant may by petition presented within one month after being notified of the decision of the Registrar, and in such manner and subject to such regulations as the Chief Justice may from time to time direct, appeal against that decision to the Chief Justice, who may—

(a)

affirm the decision of the Registrar; or

(b)

direct the Registrar to issue a certificate to the applicant free from terms and conditions or upon such terms and conditions as the Chief Justice may think fit; or

(c)

direct the Registrar not to issue a certificate; or

(d)

if a certificate has been issued, by order suspend that certificate; or

(e)

make such other order as he may think fit.

27.
Suspension of practising certificate in certain circumstances

The making by the Disciplinary Committee or the Court of an order suspending an advocate from practice shall operate, and the adjudication in bankruptcy of an advocate shall operate immediately, to suspend any practising certificate of that advocate for the time being in force.

28.
Duration of suspension of practising certificate
(1)

Subject to this section, where a practising certificate has become suspended by an order under section 26(2) or by virtue of section 27, that suspension shall continue until the certificate expires.

(2)

The suspension of a practising certificate by virtue of section 27 by reason of an adjudication in bankruptcy shall terminate if the adjudication is annulled and a certified copy of the order annulling the adjudication has been served on the Registrar.

(3)

Where an advocate’s practising certificate has become suspended—

(a)

by an order under section 26(2); or

(b)

by virtue of section 27 by reason of his adjudication in bankruptcy,

the advocate may at any time before the certificate expires (and, in the case of adjudication in bankruptcy, while the adjudication remains unannulled) apply to the Registrar to terminate the suspension of the practising certificate, giving at the same time notice to the secretary of the Society that the application has been made.

(4)

The Council of the Society may make representations or submit recommendations to the Registrar with respect to any application made under this section, and the representations or recommendations shall be absolutely privileged.

(5)

The Registrar may in his discretion—

(i) by order terminate the suspension either unconditionally or upon such terms and conditions as he may think fit; or
(ii) refuse the application.
(6)

If, on an application by an advocate under subsection (3), the Registrar refuses the application or terminates the suspension subject to terms or conditions, the advocate may, by petition presented in such manner and subject to such regulations as the Chief Justice may from time to time direct, appeal against the decision of the Registrar to the Chief Justice, who may—

(a)

affirm the decision of the Registrar; or

(b)

terminate the suspension either unconditionally or upon such terms and conditions as he may think fit.

(7)

Where an advocate’s practising certificate has become suspended by virtue of section 27 by reason of his suspension from practice and the suspension of his practising certificate is terminated unconditionally under subsection (5) or subsection (6), then, notwithstanding paragraph (c) of subsection (1) of section 25, subsections (2), (3) and (4) of section 25 shall not thereafter have effect in relation to that advocate by virtue of that suspension from practice and the expiry of the period thereof.

29.
Publication of suspension or termination of suspension of practising certificate in certain cases

Where an advocate’s practising certificate has become suspended—

(a)

by an order under section 26(2); or

(b)

by virtue of section 27 by reason of his adjudication in bankruptcy,

the Registrar shall forthwith cause notice of that suspension to be published in the Gazette and a note thereof to be entered against the name of the advocate in the Roll; and where that suspension is terminated under subsection (2), subsection (3) or subsection (4) of section 28, the Registrar shall forthwith cause a note of that termination to be entered against the name of the advocate in the Roll and, if so requested in writing by the advocate, a note thereof to be published in the Gazette.

30.
Evidence as to holding of practising certificate
(1)

Any list purporting to be published by authority of the Registrar and to contain the names of advocates who have obtained practising certificates for the current year before the 1st February in that year shall, until the contrary is proved, be evidence that the persons named therein as advocates holding such certificates as aforesaid for the current year are advocates holding such certificates.

(2)

The absence from any such list of the name of any person shall, until the contrary is proved, be evidence that that person is not qualified to practise as an advocate under a certificate for the current year, but in the case of any such person an extract from the Roll certified as correct by the Registrar shall be evidence of the facts appearing in the extract.

30A.

Repealed by Act No. 9 of 2000, s. 60.

30B.

Repealed by Act No. 9 of 2000, s. 61.

30C.

Repealed by Act No. 9 of 2000, s. 62.

PART VIII – PROVISIONS WITH RESPECT TO UNQUALIFIED PERSONS ACTING AS ADVOCATES AND OFFENCES BY ADVOCATES
31.
Unqualified person not to act as advocate
(1)

Subject to section 83, no unqualified person shall act as an advocate, or as such cause any summons or other process to issue, or institute, carry on or defend any suit or other proceedings in the name of any other person in any court of civil or criminal jurisdiction.

(2)

Any person who contravenes subsection (1) shall—

(a)

be deemed to be in contempt of the court in which he so acts or in which the suit or matter in relation to which he so acts is brought or taken, and may be punished accordingly; and

(b)

be incapable of maintaining any suit for any costs in respect of anything done by him in the course of so acting; and

(c)

in addition be guilty of an offence.

[Act No. 2 of 2002, Sch.]
32.

Repealed by Act No. 27 of 2012, s. 50 .

32A.
Employment as in-house Advocate
(1)

A person who is qualified to act as an advocate under this Act may be employed as an in-house advocate.

(2)

A person who is employed as an in-house advocate shall—

(a)

be an independent professional legal advisor to his or her employer; and

(b)

not charge fees for services rendered below the minimum prescribed fees under section 44.

[Act No. 12 of 2012, Sch.]
32B.
Standards of work and remuneration
(1)

The Chief Justice shall, on the recommendation of the Council of the Society, prescribe—

(a)

the standards of work that may be performed by a person employed as an in-house advocate under this Act; and

(b)

the criteria for determining the remuneration payable to an in-house counsel by an employer.

(2)

The employer of an in-house advocate shall not determine the remuneration of such advocate otherwise than in accordance with the criteria prescribed under subsection (1)(b).

(3)

Notwithstanding subsection (2), the employer of an in-house advocate may, in making a determination under subsection (2), offer the advocate remuneration which is higher than that prescribed.

(4)

Subject to subsection (3), a person who contravenes subsection (2) commits an offence.

[Act No. 12 of 2012, Sch.]
33.
Penalty for pretending to be advocate

Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognized by law as qualified to act as an advocate shall be guilty of an offence.

[Act No. 2 of 2002, Sch.]
34.
Unqualified person not to prepare certain documents or instruments
(1)

No unqualified person shall, either directly or indirectly, take instructions or draw or prepare any document or instrument—

(a)

relating to the conveyancing of property; or

(b)

for, or in relation to, the formation of any limited liability company, whether private or public; or

(c)

for, or in relation to, an agreement of partnership or the dissolution thereof; or

(d)

for the purpose of filing or opposing a grant of probate or letters of administration; or

(e)

for which a fee is prescribed by any order made by the Chief Justice under section 44; or

(f)

relating to any other legal proceedings;

nor shall any such person accept or receive, directly or indirectly, any fee, gain or reward for the taking of any such instruction or for the drawing or preparation of any such document or instrument:

Provided that this subsection shall not apply to—

(i) any public officer drawing or preparing documents or instruments in the course of his duty; or
(ii) any person employed by an advocate and acting within the scope of that employment; or
(iii) any person employed merely to engross any document or instrument.
(2)

Any money received by an unqualified person in contravention of this section may be recovered by the person by whom the same was paid as a civil debt recoverable summarily.

(3)

Any person who contravenes subsection (1) shall be guilty of an offence.

(4)

This section shall not apply to—

(a)

a will or other testamentary instrument; or

(b)

a transfer of stock or shares containing no trust or limitation thereof.

[Act No. 2 of 2002, Sch.]
34A.
Additional endorsements

Subject to section 10, an advocate who holds a current practising certificate shall not file any legal documents in any registry under any law which requires filing of such document by an advocate, or issue such document for any other professional purpose, unless there is affixed on each such document the stamp or seal issued by the Society under section 23(2A).

[Act No. 11 of 2017, Sch.]
34B.
Validity of legal documents
(1)

A practising advocate who is not exempt under section 10 and who fails to take out a practising certificate in any year, commits an act of professional misconduct.

(2)

Notwithstanding any other provisions of this Act, nothing shall affect the validity of any legal document drawn or prepared by an advocate without a valid practising certificate.

(3)

For the purpose of this section, “legal document” includes pleadings, affidavits, depositions, applications, deeds and other related instruments, filed in any registry under any law requiring filing by an advocate.

[Act No. 11 of 2017, Sch.]
35.
Instruments to be endorsed with name and address of drawer
(1)

Every person who draws or prepares, or causes to be drawn or prepared, any document or instrument referred to in section 34(1) shall at the same time endorse or cause to be endorsed thereon his name and address, or the name and address of the firm of which he is a partner and any person omitting so to do shall be guilty of an offence and liable to a fine not exceeding five thousand shillings in the case of an unqualified person or a fine not exceeding five hundred shillings in the case of an advocate:

Provided that, in the case of any document or instrument drawn, prepared or engrossed by a person employed, and whilst acting within the scope of his employment, by an advocate or by a firm of advocates, the name and address to be endorsed thereon shall be the name and address of such advocate or firm.

(2)

The Registrar, the Registrar of Titles, the Principal Registrar of Government Lands, the Registrar-General, the Registrar of Companies and any other registering authority shall refuse to accept or recognize any document or instrument referred to in section 34(1) unless such document or instrument is endorsed in accordance with this section.

36.
Undercutting
(1)

Any advocate who holds himself out or allows himself to be held out, directly or indirectly and whether or not by name, as being prepared to do professional business at less than the remuneration prescribed, by order, under this Act shall be guilty of an offence.

(2)

No advocate shall charge or accept, otherwise than in part payment, any fee or other consideration in respect of professional business which is less than the remuneration prescribed, by order, under this Act.

37.
Sharing profits

Any advocate who agrees to share his profits in respect of any professional business, whether contentious or non-contentious, with any person not being an advocate or other duly qualified legal practitioner (by whatever name called) shall be guilty of an offence:

Provided that this section shall not apply to the payment of any bonus to any of his employees by an advocate, being a bonus based or calculated on the advocate’s total earnings or profits in respect of any period.

38.
Touts
(1)

Any unqualified person who, in consideration of any payment or other advantage to himself or any other person, procures or attempts to procure the employment of an advocate as such in any suit or matter or solicits from an advocate any such payment or advantage in consideration of such employment shall be deemed to be a tout for the purposes of this section.

(2)

The Chief Justice may, if satisfied that any person has acted as a tout, by order exclude such person from the employment by an advocate in his practice as such.

39.
Advocate not to act as agent for unqualified person

Any advocate who acts as agent in any suit, or in any matter in bankruptcy, for any unqualified person, or permits his name, or that of any firm of which he is a partner, to be made use of in any such suit or matter, upon the account or for the profit of any unqualified person or who does any other act enabling an unqualified person to appear, act or practise in any respect as an advocate in such suit or matter, or who in any way assists any unqualified person in any cause or matter in which he knows that such person is contravening or intends to contravene this Act, shall be guilty of an offence.

40.
No costs recoverable where unqualified person acts as advocate

No costs in respect of anything done by an unqualified person in contravention of this Part shall be recoverable in any suit or matter by any person.

41.
Employment by advocate of persons struck-off the Roll or suspended
(1)

No advocate shall, in connection with his practice as an advocate, without the written permission of the Council of the Society, which may be given for such period and subject to such conditions as the Council thinks fit, employ or remunerate any person who to his knowledge is disqualified from practising as an advocate by reason of the fact that his name has been struck off the Roll, otherwise than at his own request, or is suspended from practising as an advocate.

(2)

An advocate aggrieved by the refusal of the Council of the Society to grant any permission referred to in subsection (1), or by conditions attached by the Council to the grant thereof, may appeal to the Chief Justice, who may confirm the refusal or the conditions, as the case may be, or may, in lieu of the Council, grant such permission for such period and subject to such conditions as he thinks fit.

(3)

If any advocate acts in contravention of this section or of the conditions subject to which any permission has been given thereunder he shall be liable to proceedings under section 60.

42.
Penalty for failure to disclose fact of having been struck-off, etc.
(1)

Any person who, whilst he is disqualified from practising as an advocate by reason of the fact that he has been struck off the Roll, otherwise than at his own request, or is suspended from practising as an advocate, seeks or accepts employment by an advocate in connection with the advocate’s practice without previously informing him that he is so disqualified as aforesaid shall be guilty of an offence and liable to a fine not exceeding fifty thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

(2)

Deleted by Act No. 2 of 2002, Sch.

[Act No. 2 of 2002, Sch.]
43.
Offences by bodies corporate
(1)

If any act is done by a body corporate or by any director, officer or servant thereof, of such a nature or in such a manner as to be calculated to imply that the body corporate is qualified, or recognized by law as qualified, to act as an advocate, the body corporate shall be guilty of an offence and liable to a fine not exceeding fifty thousand shillings for each such offence, and, in the case of an act done by any director, officer or servant of the corporation, he shall, without prejudice to the liability of the corporation, be guilty of an offence and liable to a fine not exceeding twenty-five thousand shillings for each such offence.

(2)

In this Part, references to unqualified persons and to persons include references to bodies corporate.

PART IX – REMUNERATION OF ADVOCATES
44.
Chief Justice may make orders prescribing remuneration
(1)

The Council of the Society may make recommendation to the Chief Justice on all matters relating to the remuneration of advocates, and the Chief Justice, having considered the same, may by order, prescribe and regulate in such manner as he thinks fit the remuneration of advocates in respect of all professional business, whether contentious or non-contentious.

(2)

An order made under this section in respect of non-contentious business may, as regards the mode of remuneration, prescribe that it shall be according to a scale of rates of commission or percentage, varying or not in different classes of business or by a gross sum, or by a fixed sum for each document prepared or perused, without regard to length, or in any other mode, or partly in one mode or partly in another, and may regulate the amount of remuneration with reference to all or any of the following, among other, considerations, that is to say—

(a)

the position of the party for whom the advocate is concerned in the business, that is, whether as vendor or purchaser, lessor or lessee, mortgagor or mortgagee, and the like;

(b)

the place where, and the circumstances in which, the business or any part thereof is transacted;

(c)

the amount of the capital money or rent to which the business relates;

(d)

the skill, labour and responsibility involved therein on the part of the advocate;

(e)

the number and importance of the documents prepared or perused, without regard to length.

(3)

An order made under this section may authorize and regulate—

(a)

the taking by an advocate from his client of security for payment of any remuneration to be ascertained by taxation or otherwise, which may become due to him under any such order; and

(b)

the allowance of interest.

(4)

So long as an order made under this section in respect of non-contentious business is in operation, taxation of bills of costs of advocates in respect of non-contentious business shall, subject to section 45, be regulated by that order.

45.
Agreements with respect to remuneration
(1)

Subject to section 46 and whether or not an order is in force under section 44, an advocate and his client may—

(a)

before, after or in the course of any contentious business, make an agreement fixing the amount of the advocate’s remuneration in respect thereof;

(b)

before, after or in the course of any contentious business in a civil court, make an agreement fixing the amount of the advocate’s instruction fee in respect thereof or his fees for appearing in court or both;

(c)

before, after or in the course of any proceedings in a criminal court or a court martial, make an agreement fixing the amount of the advocate’s fee for the conduct thereof,

and such agreement shall be valid and binding on the parties provided it is in writing and signed by the client or his agent duly authorized in that behalf.

(2)

A client may apply by chamber summons to the Court to have the agreement set aside or varied on the grounds that it is harsh and unconscionable, exorbitant or unreasonable, and every such application shall be heard before a judge sitting with two assessors, who shall be advocates of not less than five years’ standing appointed by the Registrar after consultation with the chairman of the Society for each application and on any such application the Court, whose decision shall be final, shall have power to order—

(a)

that the agreement be upheld; or

(b)

that the agreement be varied by substituting for the amount of the remuneration fixed by the agreement such amount as the Court may deem just; or

(c)

that the agreement be set aside; or

(d)

that the costs in question be taxed by the Registrar,

and that the costs of the application be paid by such party as it thinks fit.

(2A)

An application under subsection (2) may be made within one year after the making of the agreement, or within three months after a demand in writing by the advocate for payment under the agreement by way of rendering a fee note or otherwise, whichever is the later.

(3)

An agreement made by virtue of this section, if made in respect of contentious business, shall not affect the amount of, or any rights or remedies for the recovery of, any costs payable by the client to, or to the client by, any person other than the advocate, and that person may, unless he has otherwise agreed, require any such costs to be taxed according to the rules for the time being in force for the taxation thereof:

Provided that any such agreement shall be produced on demand to a taxing officer and the client shall not be entitled to recover from any other person, under any order for the payment of any costs to which the agreement relates, more than the amount payable by him to his advocate in respect thereof under the agreement.

(4)

Where any agreement made by virtue of this section is made by the client as the guardian or committee of, or trustee under deed or will for, any person whose property will be chargeable with the whole or any part of the amount payable under the agreement, the advocate shall, before payment thereunder is accepted or demanded and in any event within six months after its due date, apply by chamber summons to the Court for approval of such agreement, and every such application shall be dealt with in accordance with subsection (2).

(5)

If, after an advocate has performed part only of the business to which any agreement made by virtue of this section relates, such advocate dies or becomes incapable of acting, or the client changes his advocate as, notwithstanding the agreement, he shall be entitled to do, any party, or the legal personal representatives of any party, to such agreement may apply by chamber summons to the Court to have the agreement set aside or varied, and every such application shall be dealt with in accordance with subsection (2):

Provided that, in the case of a client changing his advocate, the Court shall have regard to the circumstances in which the change has taken place and, unless of opinion that there has been default, negligence, improper delay or other conduct on the part of the advocate affording to the client reasonable ground for changing his advocate, shall allow the advocate the full amount of the remuneration agreed to be paid to him.

(6)

Subject to this section, the costs of an advocate in any case where an agreement has been made by virtue of this section shall not be subject to taxation nor to section 48.

46.
Invalid agreements

Nothing in this Act shall give validity to—

(a)

any purchase by an advocate of the interest, or any part of the interest, of his client in any suit or other contentious proceeding; or

(b)

any agreement relieving any advocate from responsibility for professional negligence or any other responsibility to which he would otherwise be subject as an advocate; or

(c)

any agreement by which an advocate retained or employed to prosecute or defend any suit or other contentious proceeding stipulates for payment only in the event of success in such suit or proceeding or that the advocate shall be remunerated at different rates according to the success or failure thereof; or

(d)

any agreement by which an advocate agrees to accept, in respect of professional business, any fee or other consideration which shall be less than the remuneration prescribed by any order under section 44 respect of that business or more than twenty-five per centum of the general damages recovered less the party and party costs as taxed or agreed; or

(e)

any disposition, contract, settlement, conveyance, delivery, dealing or transfer that is, under the Insolvency Act, 2015, void or ineffective against the Official Receiver or a bankruptcy trustee or an interim trustee in proceedings under that Act.

47.
Power of court to order advocate to deliver his bill and to deliver up deed
(1)

The jurisdiction of the Court to make orders for the delivery by an advocate of a bill of costs, and for the delivery up of or otherwise in relation to, any deeds, documents or papers in his possession, custody or power, is hereby declared to extend to cases in which no business has been done by him in the Court.

(2)

In this section and in sections 48, 49 and 50 “advocate” includes the executors, administrators and assignees of the advocate in question.

48.
Action for recovery of costs
(1)

Subject to this Act, no suit shall be brought for the recovery of any costs due to an advocate or his firm until the expiry of one month after a bill for such costs, which may be in summarized form, signed by the advocate or a partner in his firm, has been delivered or sent by registered post to the client, unless there is reasonable cause to be verified by affidavit filed with the plaint, for believing that the party chargeable therewith is about to quit Kenya or abscond from the local limits of the Court’s jurisdiction, in which event action may be commenced before expiry of the period of one month.

(2)

Subject to subsection (1), a suit may be brought for the recovery of costs due to an advocate in any court of competent jurisdiction.

(3)

Notwithstanding any other provisions of this Act, a bill of costs between an advocate and a client may be taxed notwithstanding that no suit for recovery of costs has been filed.

49.
Procedure in action where quantum of costs is challenged by defence

Where, in the absence of an agreement for remuneration made by virtue of section 45, a suit has been brought by an advocate for the recovery of any costs and a defence is filed disputing the reasonableness or quantum thereof—

(a)

no judgment shall be entered for the plaintiff, except by consent, until the costs have been taxed and certified by the taxing officer;

(b)

unless the bill of costs on which the suit is based is fully itemised, the plaintiff shall file a fully itemized bill of the costs within fourteen days from the date of service of the defence, or such further period as may be allowed by the court, and shall serve a copy thereof on the defendant, and, if the total amount of such bill exceeds the amount sued for, the prayer of the plaintiff shall, subject to the court’s pecuniary jurisdiction, be deemed to be increased accordingly and all consequential amendments to the pleadings may be made;

(c)

no court or filing fee shall be payable on filing a bill of costs required by this section, but, if thereby the amount for which judgment is prayed in the plaint is deemed to be increased under paragraph (b), the plaintiff shall pay to the court such court or filing fee as may be appropriate to the increase; and

(d)

at any time after the bill of costs has been filed, and before the suit has been set down for hearing, any party to the action may take out a summons for directions as to whether such bill should be taxed by the taxing officer before the suit is heard.

50.
Taxation on application of third parties, beneficiaries under trust, etc.
(1)

Where a person other than the person who is the party chargeable with a bill of costs is liable to pay the bill either to the advocate or to the party chargeable with the bill, or where a person is interested in any property in the hands or under the control of a trustee, executor or administrator, out of which property the trustee, executor or administrator has paid or is liable to pay the bill, that person or his administrators, executors or assignees may apply to the Court for an order for the taxation of the bill as if he were the party chargeable therewith, and the Court, having regard to the extent and nature of the interest of the person, may make any order thereon which it would have been competent to make if the application had been made by that party:

Provided that no order for taxation of a bill shall be made under this section in any case where—

(i) the bill has previously been taxed; or
(ii) the application is made more than six months after the date on which the bill was rendered to the party chargeable therewith or three months after the date on which the bill was paid, or the date when the party making the application became entitled to do so, whichever is the earliest.
(2)

If an applicant under subsection (1) pays or has paid any money to the advocate in respect of a bill of costs payable out of property in the hands or under the control, of a trustee, executor or administrator he shall have the same right to be paid that money by the trustee, executor or administrator chargeable with the bill as the advocate had.

(3)

The Court may, if it orders taxation of the bill under this section, order the advocate to deliver to the applicant a copy of the bill upon payment of the costs of that copy.

51.
General provisions as to taxation
(1)

Every application for an order for the taxation of an advocate’s bill or for the delivery of such a bill and the delivering up of any deeds, documents and papers by an advocate shall be made in the matter of that advocate.

(2)

The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the Court, be final as to the amount of the costs covered thereby, and the Court may make such order in relation thereto as it thinks fit, including, in a case where the retainer is not disputed, an order that judgment be entered for the sum certified to be due with costs.

52.
Charging orders

Any court in which an advocate has been employed to prosecute or defend any suit or matter may at any time declare the advocate entitled to a charge on the property recovered or preserved through his instrumentality for his taxed costs in reference to that suit or matter, and may make orders for the taxation of the costs and for raising money to pay or for paying the costs out of the property so charged as it thinks fit, and all conveyances and acts done to defeat, or operating to defeat, that charge shall, except in the case of a conveyance to a bona fide purchaser for value without notice, be void as against the advocate:

Provided that no order shall be made if the right to recover the costs is barred by limitation.

PART X – COMPLAINTS COMMISSION
53.
Establishment of Complaints Commission
(1)

There is hereby established a Complaints Commission (in this Part referred to as “the Commission”) which shall consist of such commissioner or commissioners as shall be appointed by the President for the purpose of enquiring into complaints against any advocate, firm of advocates, or any member or employees thereof.

(2)

If a single commissioner is appointed under subsection (1) he shall be a person who is qualified to be appointed as a Judge of the High Court under Chapter IV of the Constitution, and if more than one commissioner is appointed then one commissioner shall be so qualified.

(3)

The Commission may require any person, whom it considers necessary for the purpose of carrying out its duties under this section, to assist it in so doing.

(3A)

Any person who, without lawful excuse, fails or refuses to assist the Commission when required to do so under subsection (3) shall be guilty of an offence.

(4)

It shall be the duty of the Commission to receive and consider a complaint made by any person, regarding the conduct of any advocate, firm of advocates, or any member or employee thereof; and—

(a)

if it appears to the Commission that there is no substance in the complaint it shall reject the same forthwith; or

(b)

if it appears to the Commission whether before or after investigation that there is substance in the complaint but that the matter complained of constitutes or appears to constitute a disciplinary offence it shall forthwith refer the matter to the Disciplinary Committee for appropriate action by it under Part XI; or

(c)

if it appears to the Commission that there is substance in the complaint but that it does not constitute a disciplinary offence it shall forthwith notify the person or firm against whom the complaint has been made of the particulars of the complaint and call upon such person or firm to answer the complaint within such reasonable period as shall be specified by the Commission in such notification; or

(d)

upon the expiration of the period specified under paragraph (c), the Commission shall proceed to investigate the matter for which purpose it shall have power to summon witnesses, to require the production of such documents as it may deem necessary, to examine witnesses on oath and generally take all such steps as it may consider proper and necessary for the purpose of its inquiry and shall, after hearing any submissions made to it by or on behalf of the complainant and the person or firm against whom the complaint has been made, make such an order or award in accordance with this section as it shall in the circumstances of the case consider just and proper; or

(e)

if it appears to the Commission that there is substance in a complaint but that the circumstances of the case do not disclose a disciplinary offence with which the Disciplinary Committee can properly deal and that the Commission itself should not deal with the matter but that the proper remedy for the complainant is to refer the matter to the courts for appropriate redress the Commission shall forthwith so advise the complainant.

(5)

In all cases which do not appear to the Commission to be of serious or aggravated nature, the Commission shall endeavour to promote reconciliation and encourage and facilitate an amicable settlement between the parties to the complaint.

(6)

If the Commission considers that the complainant has suffered loss or damage by reason of the advocate’s conduct, the Commission may, by order, award such complainant compensation or reimbursement not exceeding one hundred thousand shillings.

(6A)

An order made under subsection (6) shall be registered with the Court and shall thereupon be enforceable in the same manner as an order of the Court to the like effect.

(6B)

Where the matter before the Commission relates to surrender of funds or property by an advocate to a client, the Commission may order the surrender of all refunds or property which the advocate does not dispute:

Provided that this subsection shall not apply where the complainant has filed a civil suit against the advocate in respect of the same funds or property.

(6C)

An advocate against whom an order is made under this section and who has not appealed against such order under section 62 may apply to the Disciplinary Committee for a review of the Order.

(6D)

The Commission may, in hearing a complaint against an advocate, order such advocate to produce to the Commission a detailed fee note for purposes of taxation of the bill of costs:

Provided that where the advocate fails to produce such fee note within 14 days from the date of such order, the Commission may assess the advocate’s fee in such sum as it deems fit.

(6E)

The Commission may investigate the accounts of an advocate against whom a complaint has been made and for that purpose may order such advocate to produce all relevant books and documents to the Commission or to an accountant engaged before the Commission in that behalf.

(7)

The Commission may issue a warrant for the levy of the amount of any sum ordered to be paid by virtue of this section on the immovable and movable property of the person or firm by whom the compensation is ordered to be paid by distress and sale under warrant, and such warrant shall be enforced as if it was a warrant issued by the Court.

(8)

Any party aggrieved by a decision or order of the Commission under this section may appeal to the High Court and the determination of any such appeal shall be final.

(9)

The Commission shall publish a quarterly report as to the complaints dealt with by it in that quarter and the report shall be made in such manner and be in such form as shall be prescribed by rules made under subsection (3) of section 54.

[Act No. 2 of 2002, Sch.]
53A.
Remuneration of Commissioner
(1)

There shall be paid to the Commissioner such remuneration by way of salary, allowance, pension or gratuity as shall be determined by the President.

(2)

The remuneration referred to in subsection (1) shall be paid out of moneys provided by Parliament.

[Act No. 21 of 1990, Sch.]
54.
Secretary and staff of Commission and rules relating thereto
(1)

There shall be a secretary to the Commission who shall be appointed by the Attorney-General.

(2)

The Attorney-General shall provide such public officers as are necessary for the proper and efficient exercise of the duties and functions of the Commission.

(3)

The Attorney-General may make rules regulating the structure and operation of the Commission and for the carrying into effect its functions under this Part.

PART XI – DISCIPLINE
55.
Advocates to be officers of Court

Every advocate and every person otherwise entitled to act as an advocate shall be an officer of the Court and shall be subject to the jurisdiction thereof and, subject to this Act, to the jurisdiction of the Disciplinary Tribunal:

Provided that the persons mentioned in section 10, other than those included in paragraph (c) of that section, shall not be subject to the jurisdiction of the Disciplinary Tribunal.

[Act No. 12 of 2012, Sch.]
56.
Savings of disciplinary powers of Court

Nothing in this Act shall supersede, lessen or interfere with the powers vested in the Chief Justice or any of the judges of the Court to deal with misconduct or offences by an advocate, or any person entitled to act as such, committed during, or in the course of, or relating to, proceedings before the Chief Justice or any judge.

57.
Establishment of Disciplinary Tribunal
(1)

There is established a tribunal to be known as the Disciplinary Tribunal (in this Part referred to as “the Tribunal”) which shall consist of—

(a)

the Attorney-General;

(aa)

deleted by Act No. 18 of 2014, Sch.;

(b)

the Solicitor-General or a person deputed by the Attorney-General; and

(c)

six advocates (other than the chairman, vice-chairman or secretary of the Society), of not less than ten years standing, one of whom shall be an advocate who does not ordinarily practise in Nairobi, all of whom shall be elected and shall hold office for three years and be eligible for re-election;

(d)

deleted by Act No. 7 of 2007, Sch.

(1A)

The members of the Tribunal shall be paid such remuneration, fees or allowances for expenses as the Attorney-General, in consultation with the Treasury, may authorise out of monies provided by Parliament for that purpose.

(2)

During the illness, or temporary absence from Kenya, of any of its elected members, the Tribunal may nominate any advocate who is qualified for election as a member of the Tribunal to act as a temporary member of the Tribunal.

(3)

In the event of there being any complaint or matter pending before the Tribunal at the date of retirement of any member and such member being a member of a tribunal thereof which had, prior to such date, entered upon the hearing thereof in accordance with section 60, that member shall, in the event of his not being re-elected, be deemed to remain in office for the purpose only of such complaint or matter and shall so remain until such complaint or matter has been finally disposed of.

(4)

For the purposes of subsection (3), a complaint or matter shall be deemed to be pending if under consideration by the Tribunal, and a complaint or matter shall be deemed to have been finally disposed of—

(a)

in the case of an application under section 59, or a complaint under section 60, upon the making of a final order; or

(b)

in the case of a matter arising under section 71, when the Chief Justice has signified his decision thereon; or

(c)

in the case of an application under section 72, upon the final conclusion of the proceedings relating thereto before the Committee or the Court, as the case may be; or

(d)

in any other case, upon the final determination thereof by the Committee.

[Act No. 2 of 2002, Sch., Act No. 7 of 2007, Sch., Act No. 12 of 2012, Sch, Act No. 18 of 2014, Sch.]
58.
Proceedings of Tribunal
(1)

The Tribunal may, subject to subsection (2), act as a tribunal of either three or five members, and may require the chairman or vice-chairman of the Society or both or any other member of the Council of the Society, to sit as an additional member or members of the Tribunal to constitute the tribunal for the purposes of any complaint or matter where, on the grounds of availability or convenience, a tribunal would not otherwise be available.

(2)

The Attorney-General or Solicitor-General shall be the chairman of the Tribunal and shall preside at all meetings at which he is present, and in absence of the Attorney-General or the Solicitor-General the person deputed by the Attorney-General under section 57(1)(b) shall be chairman of that meeting:

Provided that if both the Attorney-General and the Solicitor-General or any person deputed by the Attorney-General under subsection (1) of section 57 are unable to be present, the tribunal shall appoint a chairman from the members present.

(3)

The secretary of the Society shall be the secretary of the Tribunal and his remuneration, if any, shall be paid by the Society:

Provided that the Tribunal may, in the case of absence or inability to act of the secretary, appoint any person entitled to act as an advocate to act as secretary to the Tribunal during the period of such absence or inability to act and in such case the remuneration, if any, of the person so appointed shall be paid by the Society.

(4)

For the purposes of any application or complaint made to it under this Part, the Tribunal may administer oaths or affirmations, and the complainant and the advocate to whom a complaint relates, and an applicant making any application to the Tribunal, may take out a summons to give evidence or to produce documents, but no person shall be compellable under any such summons to produce any document which he could not legally be compelled to produce at the trial of a suit.

(5)

All proceedings before the Tribunal shall be deemed for the purposes of Chapter XI of the Penal Code (Cap. 63) to be judicial proceedings and for the purposes of the Evidence Act (Cap. 80) to be legal proceedings.

(6)

The Tribunal may make rules for regulating the making to the Tribunal, and the hearing and determination by the Tribunal, of applications or complaints under this Part or with respect to matters incidental to or consequential upon it’s Orders.

[Act No. 2 of 2002, Sch., Act No. 12 of 2012, Sch.]
58A.
Establishment of Regional Disciplinary Committees
(1)

There are hereby established Disciplinary Committees (in this Part referred to as “Regional Committees”) in five representative regions, other than Nairobi, identified by the society.

(2)

Each Regional Disciplinary Committee shall have a jurisdiction concurrent to that of the Disciplinary Committee established under section 57 of the Advocates Act in their respective regions, and shall exercise the same functions and have the same powers and duties set out under this Part or under any other written law.

(3)

Each Regional Committee shall consist of five advocates (other than the Chairman, Vice-Chairman or Secretary of the Society) of not less than ten years’ standing, all of whom shall be elected by the various chapters or regional representatives of the Society, who shall hold office for two years and shall be eligible for re-election.

(4)

The provision of this Part shall apply accordingly to the Committee and the Regional Committees, and the two shall be used interchangeably where reference is made to one or in any other written law.

[Act No. 7 of 2007, Sch.]
59.
Application for removal of name from the Roll
(1)

An advocate may make an application to the Tribunal to procure his name to be removed from the Roll.

(2)

On the hearing of an application under subsection (1), the Tribunal may make an order that the name of such advocate be removed from the Roll and may make such other order in relation to the case as it may think fit.

[Act No. 12 of 2012, Sch.]
60.
Complaints against advocates
(1)

A complaint against an advocate of professional misconduct, which expression includes disgraceful or dishonourable conduct incompatible with the status of an advocate, may be made to the Tribunal by any person.

(2)

Where a person makes a complaint under subsection (1), the complaint shall be by affidavit by himself setting out the allegations of professional misconduct which appear to arise on the complaint to the Tribunal, accompanied by such fee as may be prescribed by rules made under section 58(6); and every such fee shall be paid to the Society and may be applied by the Society to all or any of the objects of the Society.

(3)

Where a complaint is referred to the Tribunal under Part X or subsection (1) the Tribunal shall give the advocate against whom the complaint is made an opportunity to appear before it, and shall furnish him with a copy of the complaint, and of any evidence in support thereof, and shall give him an opportunity of inspecting any relevant document not less than seven days before the date fixed for the hearing:

Provided that, where in the opinion of the Tribunal the complaint does not disclose any prima facie case of professional misconduct, the Tribunal may, at any stage of the proceedings, dismiss such complaint without requiring the advocate to whom the complaint relates to answer any allegations made against him and without hearing the complaint.

(4)

After hearing the complaint and the advocate to whom the same relates, if he wishes to be heard, and considering the evidence adduced, the Tribunal may order that the complaint be dismissed or, if of the opinion that a case of professional misconduct on the part of the advocate has been made out, the Tribunal may order—

(a)

that such advocate be admonished; or

(b)

that such advocate be suspended from practice for a specified period not exceeding five years; or

(c)

that the name of such advocate be struck off the Roll; or

(d)

that such advocate do pay a fine not exceeding one million shillings; or

(e)

that such advocate pays to the aggrieved person compensation or reimbursement not exceeding five million shillings,

or such combination of the above orders as the Tribunal thinks fit.

(5)

The Tribunal may make any such order as to payment by any party of any costs or witness expenses and of the expenses of the Tribunal or the members thereof in connection with the hearing of any complaint as it may think fit, and any such order may be registered with the Court and shall thereupon be enforceable in the same manner as an order of the Court to the like effect.

(6)

Where an advocate against whom the Tribunal is hearing a complaint relating to fees and costs has not filed a bill of costs in Court, the Tribunal may upon the request of the complainant, order such an advocate to produce before it a detailed fee note:

Provided that where the advocate fails to comply with an order of the Tribunal under this subsection, the Tribunal may determine the fee payable to the advocate in such sums as it deems fit.

(7)

If a bill of costs has been filed in Court by the advocate against whom a complaint is being heard but has not been taxed, the Tribunal may adjourn the complaint for such period as it considers reasonable to allow such taxation:

Provided that if at the expiry of such adjournment, the bill is still not taxed, the Tribunal may make its own estimate of the costs due to the advocate and make orders accordingly.

(8)

A determination of the Tribunal under subsections (7) and (8) shall be deemed, for all purposes, to be a determination of the Court.

(9)

In any case where the complainant has not filed a civil suit against the advocate in respect of the sum in dispute, the Tribunal may order the advocate to pay to the complainant such sum as it finds to be due from the advocate.

(10)

An order made by the Tribunal under this section—

(a)

shall be in the name of the advocate or firm of advocates in respect of whom or which the order is made;

(b)

may be filed in the civil registry of the Court by any party thereto who shall, within twenty-one days of the filing, give a notice to all other parties in writing of the filing of the order, which shall bear the date, the cause number and the registry in which it has been filed and a return of service of the order.

(11)

If no memorandum of appeal is filed in accordance with subsection (1) of section 62 the party in favour of whom the order is made may apply ex parte by summons for leave to enforce such order as a decree, and the order may be executed in the same manner as an order of the Court to the like effect and, if it is an order for the recovery of money, may be enforced on the immovable and movable property of the advocate in accordance with the Civil Procedure Rules (Cap. 21, Sub. Leg.).

(12)

The Tribunal may issue a warrant for the levy of the amount of any sum ordered to be paid by virtue of this section on the immovable and movable property of the advocate by distress and sale under warrant, and such warrant shall be enforced as if it were a warrant issued by the Court.

[Act No. 2 of 2002, Sch., Act No. 12 of 2012, Sch.]
60A.
Hearing of complaints
(1)

The powers conferred on the Committee by this section may be exercised on the hearing of—

(a)

any application or complaint made to the Committee under this Act by or on behalf of the Council;

(b)

any application made to the Committee by the Complaints Commission under this Act; or

(c)

any application or complaint made to the Committee under this Act, by or on behalf of any person.

(2)

Where, on the hearing of any application or complaint with respect to an advocate or firm of advocates, it appears to the Committee that the professional services provided by such advocate or firm in connection with any matter in which such advocate or firm of advocates had been instructed by a client were, in any respect, not of the quality that could reasonably have been expected of an advocate, then, subject to subsection (4), the Committee may, if it thinks fit, do one or more of the following things, namely—

(a)

determine that the costs to which the advocate or firm of advocates shall be entitled, in respect of those services shall be limited to such amount as may be specified in its determination and by order, direct the advocate to comply, or to secure compliance, with such one or more requirements falling within subsection (3) as appear to it to be necessary in order to give effect to its determination; or

(b)

by order direct the advocate or firm of advocates to secure the rectification at their own expense of any error, omission or other deficiency arising in connection with the matter as it may specify; or

(c)

by order direct the advocate or firm of advocates to take at their own expense, such other action in the interests of the client as it may specify.

(3)

The requirements referred to in paragraph (a) of subsection (2) are—

(a)

a requirement to refund the whole or part of any amount already paid by or on behalf of the client in respect of the advocate’s costs in respect of services rendered in connection with the matter;

(b)

a requirement to remit the whole or part of the costs; and

(c)

a requirement to waive, whether wholly or to any specified extent, the right to recover those costs.

(4)

The Committee shall not exercise any of its powers under this section unless it is satisfied that it would in all circumstances, be appropriate to do so; and in determining whether in any case it would be appropriate to exercise any of those powers, the Committee may have regard—

(a)

to the existence of any remedy that could reasonably be expected to be available to the client in civil proceeding; or

(b)

where proceedings seeking any such remedy have not been commenced by the client, whether it would be reasonable to expect him to commence such proceedings.

(5)

Where the Committee has given a direction under subsection (2)(a) in order to give effect to a determination by it under that provision, then—

(a)

for the purposes of any taxation of a bill covering those costs the amount charged by the bill in respect of those costs shall be deemed to be limited to the amount specified by the Committee; and

(b)

where a bill covering those costs has not been taxed in accordance with paragraph (a), the client shall, for the purposes of the recovery of those costs (by whatever means) and notwithstanding any statutory provision or agreement, be deemed to be liable to pay costs only to the extent of the amount specified by the Committee.

(6)

Where a bill covering those costs has been taxed in accordance with subsection (5)(a), the Committee’s direction under subsection (2)(a) shall, so far as relating to those costs, cease to have effect.

(7)

For the purposes of this section, “client”, in relation to any matter in which an advocate or firm of advocates has been instructed, includes any person on whose behalf the person who gave the instructions was acting.

[Act No. 2 of 2002, Sch.]
61.
Reports by Tribunal and action thereon
(1)

On the termination of the hearing of a complaint, if the Tribunal does not dismiss the same, the Tribunal shall embody its findings and the order or orders made by it in the form of a report to the Court, which shall be delivered to the Registrar, together with the record of evidence taken and any documents put in evidence.

(2)

The Registrar shall give to the complainant, to the Complaints Commission (if the complainant has been referred by it to the Tribunal), to the Council of the Society and to the advocate to whom the complaint relates notice of delivery of the report, which shall be open to inspection by the complainant, the Commissioner, the advocate to whom the complaint relates and their respective advocates, if any, and by the Council.

(3)

At the conclusion of the hearing of a complaint the Tribunal may, if evidence of an offence appears to it to have been disclosed under section 80, make a report of the proceedings and its findings to the Attorney-General who shall consider whether to exercise his powers under that section.

[Act No. 12 of 2012, Sch.]
62.
Appeal against order of Tribunal
(1)

Any advocate aggrieved by order of the Tribunal made under section 60 may, within fourteen days after the receipt by him of the notice to be given to him pursuant to section 61(2), appeal against such order to the Court by giving notice of appeal to the Registrar, and shall file with the Registrar a memorandum setting out his grounds of appeal within thirty days after giving by him of such notice of appeal.

(2)

The Court shall set down for hearing any appeal filed under subsection (1) and shall give to the Council of the Society and to the advocate not less than twenty-one days’ notice of the date of hearing.

(3)

An appeal under this section shall not suspend the effect or stay the execution of the order appealed against notwithstanding that the order is not a final order.

[Act No. 12 of 2012, Sch.]
63.
Registrar to furnish copy of the report and record

When notifying the Council of the Society and the advocate to whom a complaint relates of the date fixed for the hearing of the appeal, the Registrar shall also forward to the Council and the advocate a copy of the report of the evidence, a list of any documents put in evidence and the memorandum of appeal.

64.
Powers of Court

The Court, after considering the evidence taken by the Tribunal, the report of the Tribunal and the memorandum of appeal, and having heard the parties, and after taking any further evidence, if it thinks fit so to do, may—

(a)

refer the report back to the Tribunal with directions for its findings on any specified point; or

(b)

confirm, set aside or vary any order made by the Tribunal or substitute therefor such order as it may think fit;

and may also make such order as to the payment by any person of costs, or otherwise in relation to the appeal, as it may think fit.

[Act No. 12 of 2012, Sch.]
65.
Powers of Court under section 64 to be exercised by two judges
(1)

The powers conferred upon the Court by section 64 shall be exercised by not less than two of the judges of the Court.

(2)

If such powers are exercised by two judges and the opinion of the Court is equally divided, the matter shall be reheard by three judges.

(3)

If such powers are exercised by three judges and they do not agree in their opinion, the decision of the majority shall be taken to be the decision of the Court.

66.
Registrar to draw up orders

Where an order has been made by the Court under section 64, the Registrar shall, within one week from the date of the making thereof, cause the order to be drawn up.

67.
Right of appeal to Court of Appeal
(1)

Any advocate aggrieved by a decision or order of the Court made under section 64 may appeal therefrom to the Court of Appeal in the manner and within the time prescribed by the rules made from time to time by the Court relating to second appeals in civil matters.

(2)

An appeal under this section shall not suspend the effect or stay the execution of the decision or order appealed against notwithstanding that the order concerned is not a final order.

68.
Orders to be noted on the Roll
(1)

The Registrar shall cause a note of the effect of a final order to be entered in the Roll against the name of the advocate concerned, and where the order so directs shall remove or strike off his name from the Roll.

(2)

The Registrar shall send to the secretary of the Society a certified copy of every final order made under this Part removing or striking off the name of an advocate from the Roll or suspending an advocate from practice.

(3)

Where an advocate is a member of a professional body outside Kenya, or is subject to the jurisdiction for the purposes of discipline of a professional body outside Kenya, the Registrar shall also send to the professional body a certified copy of every final order made under this Part suspending or striking off the name of the advocate from the Roll.

69.
Law Society to be informed of result of disciplinary proceedings and publicity of striking-off or suspension
(1)

The Registrar shall inform the secretary to the Society of the making of an entry in respect of any advocate on the Roll and of the removal from, or the striking off, the Roll of the name of any advocate in accordance with the provisions of this Part.

(2)

The Registrar shall cause to be published in the Gazette a notice that a final order has been made in respect of any advocate whereby he has been suspended from practice or whereby his name has been struck off the Roll and the Society may publish a similar notice in at least one daily newspaper of national circulation.

[Act No. 2 of 2002, Sch.]
70.
Limitation of time for certain applications to strike names off the Roll

Subject as hereinafter provided, no advocate shall be liable to have his name struck off the Roll on account of any defect in his admission and enrolment, unless the application to strike his name off the Roll is made within twelve months after the date of his enrolment:

Provided that this section shall not apply to any case where fraud is proved to have been committed in connection with the admission or enrolment.

71.
Restoration to Roll

The Chief Justice shall, upon the recommendation of the Tribunal and with the written approval of the Chairman of the Society, order the Registrar to restore on the Roll the name of any advocate whose name has been removed or struck off the Roll, and the Registrar shall, upon payment by the advocate of the prescribed fee, restore such name accordingly.

[Act No. 2 of 2002, Sch., Act No. 7 of 2007, Sch., Act No. 12 of 2012, Sch.]
72.
Disciplinary powers as to clerks
(1)

An application may be made by or on behalf of the Council of the Society to the Tribunal for an order directing that, as from a date to be specified in such order, no advocate shall, in connection with his practise as an advocate, without the written permission of such Council, which may be given for such period and subject to such conditions as such Council may think fit, take into or retain in his employment or remunerate any person, who, being or having been a clerk to an advocate—

(a)

has been convicted of any offence mentioned in Chapters XI, XXVI, XXXII or XXXV, in or against any one or more of sections 280, 281, 282, 285, 293, 294, 308, 311, 314, or 393 of the Penal Code (Cap. 63), or any offence mentioned in the Prevention of Corruption Act (Cap. 65); or

(b)

has been convicted of any offence involving fraud or deceit; or

(c)

has been party to any act or default of an advocate in respect of which a complaint has been or might be made against such advocate to the Tribunal; or

(d)

has so conducted himself whilst employed as a clerk to an advocate that, had he himself been an advocate, such conduct might have formed the subject of a complaint against him to the Tribunal.

(2)

The provisions of section 58 and of subsections (4), (5) and (6) of section 60 shall apply, mutatis mutandis, to the hearing of an application under this section.

(3)

Every order made by the Tribunal under this section shall be filed, on a file to be kept for that purpose, by the secretary to the Tribunal who shall cause a certified copy of such order to be delivered to the person to whom it relates or shall forward the same by registered post to his last known address.

(4)

The file mentioned in subsection (3) may be inspected by any advocate during office hours without payment.

[Act No. 12 of 2012, Sch.]
73.
Clerk’s right of appeal
(1)

Any person against whom an order has been made by the Tribunal under section 72 may, within fourteen days of the date of such order, appeal against such order to the Court, by giving notice of appeal to the Registrar and shall file with the Registrar a memorandum setting out his grounds of appeal within thirty days after the giving by him of such notice of appeal.

(2)

The Court shall set down for hearing any appeal filed under subsection (1) and shall give to the Council of the Society and to the appellant not less than twenty-one days’ notice of the hearing.

(3)

The provisions of sections 64, 65 and 79 shall apply, mutatis mutandis to the hearing of an appeal under this section.

(4)

The decision of the Court shall be final.

[Act No. 12 of 2012, Sch.]
74.
Offences and penalties with respect to employment of clerks against whom an order is in force
(1)

Any person against whom an order made under section 72 is in force who seeks or accepts employment by, or remuneration from, an advocate in connection with his practice as an advocate without previously informing him of the order shall be guilty of an offence.

(2)

Any advocate who knowingly acts in contravention of an order made under section 72 or in contravention of any condition subject to which the permission of the Council of the Society may have been given under subsection (1) of that section shall be guilty of an offence.

75.
Order of Tribunal to be received in evidence

Every report and every order made by the Tribunal under this Part shall be signed by the chairman of the Tribunal, and any document, purporting to be a report or an order so signed shall be received in evidence in any judicial proceedings or in any proceedings under this Act, and shall be deemed to be such a report or an order without further proof of its contents unless the contrary is shown.

[Act No. 12 of 2012, Sch.]
76.
Authentication of rules and other documents

Subject to section 75, all rules, certificates, notices and other documents made or issued by the Tribunal for any purpose whatsoever may be signed on behalf of the Tribunal by the secretary to the Tribunal or by such member or other person as the Tribunal may for that purpose appoint.

[Act No. 12 of 2012, Sch.]
77.
Penalties for failure to comply with order of Committee

Any person who, without good and lawful excuse, contravenes or fails to comply with any order, notice or direction of the Committee or the Complaints Commission shall be guilty of an offence and, in the case of an advocate, shall, alternatively or in addition, be liable to proceedings under section 60.

[Act No. 2 of 2002, Sch.]
78.
Immunity for members of Tribunal

No member of the Tribunal, nor any person who is or was at any material time a member, or the secretary, thereof, shall be liable to be sued in any civil court for or in respect of any act or thing done or omitted to be done, or ordered to be done or omitted, by him, in good faith, in the exercise, discharge or performance or intended or purported exercise, discharge or performance, of any of the powers jurisdiction, duties or functions conferred upon him under or by virtue of this Act.

[Act No. 12 of 2012, Sch.]
79.
Right to legal representation

Any advocate against whom a complaint is made or any complainant under Part X or this Part, may be represented by an advocate.

80.
Betrayal of trust

Any person who, being an advocate, is entrusted in his professional capacity with any money, valuable security or other property to retain it in safe custody with instructions to pay or apply it for any purpose in connection with his duty as an advocate fails to pay, apply or account for the same after due completion of the purpose for which it was given, shall be guilty of an offence:

Provided that no prosecution for an offence under this section shall be instituted unless a report has been made to the Attorney-General by the Tribunal under subsection (3) of section 61.

[Act No. 12 of 2012, Sch.]
PART XII – MISCELLANEOUS PROVISIONS
81.
Power to make rules
(1)

The Council of the Society, with the approval of the Chief Justice, may make rules with regard to—

(a)

the professional practice, conduct and discipline of advocates;

(b)

the keeping of accounts by advocates;

(c)

the annual submission to the Council of a certificate by an accountant registered under the Accountants Act (Cap. 531) or by some other person or class of persons specified by such Council that he has examined the books, accounts and documents of the advocate to such extent as may be prescribed and stating—

(i) whether or not he is satisfied that, during the period covered by his certificate, the advocate has complied with the rules for the time being in force regulating the keeping of accounts by advocates; and
(ii) if he is not so satisfied, the matters in respect of which he is not satisfied;
(d)

the retention or otherwise by advocates of interest earned on moneys deposited, received or held for or on account of clients;

(e)

the issue of practising certificates, the fee payable thereon and the duties of the Registrar with respect to the issuing of such certificates;

(ee)

the procedure for the conferment of, and the privileges attached to, the rank of Senior Counsel;

(f)

the establishment of a compensation fund for the benefit of clients;

(g)

indemnity for clients against loss or damage arising from claims in respect of any civil liability incurred by an advocate or his employee, or from breach of trust by the advocate or his employee;

(h)

continuing professional education for all advocates practising in Kenya;

(i)

generally for the better carrying out of the provisions of this Act, other than Parts III, IV, IX, X and XI.

(2)

If an advocate fails to comply with any rules made under this section, any person may make a complaint in respect of that failure to the Disciplinary Tribunal.

(3)

No rule made under this section shall require an advocate who is a member of the National Assembly or the Speaker and who holds a practising certificate to undergo continuing legal education during his tenure as such member or as the Speaker.

[Act No. 7 of 1990, Act No. 9 of 2000, s. 63, Act No. 2 of 2002, Sch., Act No. 7 of 2007, Sch., Act No. 6 of 2009, Sch., Act No. 12 of 2012, Sch.]
82.
Relief to banks
(1)

Subject to this section, no bank shall, in connection with any transaction on any amount of any advocate kept with it or with any other bank (other than an account kept by an advocate as trustee for a specified beneficiary) incur any liability or be under any obligation to make an inquiry, or be deemed to have any knowledge of any right of any person to any money paid or credited to any such account which it would not incur or be under or be deemed to have in the case of an account kept by a person entitled absolutely to all the money paid or credited to it:

Provided that nothing in this subsection shall relieve a bank from any liability or obligation to which it would be subject apart from this Act.

(2)

Notwithstanding anything in subsection (1), a bank at which an advocate keeps an account for client’s money shall not, in respect of any liability of the advocate to the bank, not being a liability in connection with that account, have or obtain any recourse or right, whether by way of set-off, counterclaim, charge or otherwise, against moneys standing to the credit of that account.

83.
Saving of other laws

Nothing in this Act or any rules made thereunder shall affect the provisions of any other written law empowering any unqualified person to conduct, defend or otherwise act in relation to any legal proceedings.

84.
Application of certain fees, etc

All admission fees received by the Registrar under section 11(2) or 15(4), and all fees received by the Registrar in respect of replacing an advocate’s name on the Roll under section 71, shall be paid by the Registrar to the Society, and those fees together with the fees for practising certificates and the Society’s annual subscriptions, both of which shall be collected by the Society, shall be applied by the Society to all or any of the objects of the Society.

85.
General penalty
(1)

Any person who is guilty of an offence under this Act for which no penalty is otherwise provided shall be liable to a fine not exceeding one hundred thousand shillings or to imprisonment for a term not exceeding two years or both.

(2)

Any advocate who is guilty of an offence under this Act shall be liable, whether or not he has been charged with, convicted or acquitted of such offence, to proceedings under section 60.

[Act No. 2 of 2002, Sch.]
86.
Repeal of Cap. 16 and savings
(1)

The Advocates Act (Cap. 16) is repealed.

(2)

Without prejudice to the generality of the application of subsection (3) of section 23 of the Interpretation and General Provisions Act (Cap. 2), the transitional provisions set out in the Second Schedule to this Act shall have effect on the repeal of the Advocates Act (Cap. 16).

FIRST SCHEDULE [Section 3(2) (now repealed).]
PROCEEDINGS OF THE COUNCIL OF LEGAL EDUCATION
 

Repealed by Act No. 12 of 1995 , s. 21 .

SECOND SCHEDULE [Section 86(2).]

TRANSITIONAL PROVISIONS

1.

The four advocates who, immediately before the commencement of this Act, were members of the Council of Legal Education then existing shall be deemed to be the four advocates nominated by the Society for the purposes of section 3 of this Act.

2.

The Roll of all advocates kept by the Registrar in accordance with the provisions of section 20 the Advocates Act (Cap. 16) (hereinafter referred to as “the repealed Act”) shall continue to be the Roll of Advocates for the purposes of this Act.

3.

Any practising certificate issued by the Registrar in accordance with the provisions of the repealed Act and in force at the commencement of this Act shall be deemed to have been issued in accordance with the provisions of this Act.

4.

The Disciplinary Committee established by the repealed Act shall become and shall be the Disciplinary Committee for the purposes of this Act and any complaint or matter pending before the Disciplinary Committee at the commencement of this Act shall continue before the Disciplinary Committee in accordance with the provisions of the repealed Act, as the case may require.

5.

Notwithstanding the repeal of the Advocates Act, a person who, immediately before the commencement of this Act, was serving articles of clerkship registered under section 14 of the Act shall continue to serve under those articles until the date of expiry and shall be deemed to be duly qualified for the purposes of section 12 of this Act.

6.

Notwithstanding the repeal of the Advocates Act, a person who, immediately before the commencement of this Act, was undergoing instruction as a pupil in accordance with section 12 or 18A thereof, shall continue to receive instruction as a pupil for the prescribed period until the date of expiry and shall be deemed to have duly complied with subparagraph (i) of subsection (1) of section 13 of this Act.

Agra City – Tūzuk-i-Jahāngīrī

Agra is one of the grand old cities of Hindustan. It had formerly an old fort on the bank of the Jumna, but this my father threw down before my birth, and he founded a fort of cut red stone, the like of which those who have travelled over the world cannot point out. It was completed in the space of fifteen or sixteen years. It had four gates and two sally-ports, and its cost was 35 lakhs of rupees, equal to 115,000 tomān of current Persian coinage and to 10,500,000 k͟hānī according to the Tūrān reckoning. The habitable part of the city extends on both sides of the river. On its west side, which has the greater population, its circumference is seven kos and its breadth is one kos. The circumference of the inhabited part on the other side of the water, the side towards the east, is 2½ kos, its length being one kos and its breadth half a kos. But in the number of its buildings it is equal to several cities of ʿIrāq, K͟hurāsān, and Māwarāʾa-n-nahr (Transoxiana) put together. Many persons have erected buildings of three or four storeys in it. The mass of people is so great, that moving about in the lanes and bazars is difficult. It is on the boundary of the second climate. On its east is the province of Qanauj; on the west, Nāgor; on the north, Sambhal; and on the south, Chanderī.

It is written in the books of the Hindus that the source [4]of the Jumna is in a hill of the name of Kalind,2 which men cannot reach because of the excessive cold. The apparent source is a hill near the pargana of K͟hiẓrābād.

The air of Agra is warm and dry; physicians say that it depresses the spirits (rūḥrā ba taḥlīl mībarad) and induces weakness. It is unsuited to most temperaments, except to the phlegmatic and melancholy, which are safe from its bad effects. For this reason animals of this constitution and temperament, such as the elephant, the buffalo, and others, thrive in its climate.

Before the rule of the Lodī Afghans, Agra was a great and populous place, and had a castle described by Masʿūd b. Saʿd b. Salmān in the ode (qaṣīda) which he wrote in praise of Maḥmūd, son of Sultan Ibrāhīm, son of Masʿūd, son of Sultan Maḥmūd of G͟haznī, on the capture of the castle—

“The fort of Agra appeared in the midst of the dust

Like a mountain, and its battlements like peaks.”3

When Sikandar Lodī designed to take Gwalior he came to Agra from Delhi, which was the capital of the Sultans of India, and settled down there. From that date the population and prosperity of Agra increased, and it became the capital of the Sultans of Delhi. When God Almighty bestowed the rule of India on this illustrious family, the late king, Bābar, after the defeat of Ibrāhīm, the son of Sikandar Lodī, and his being killed, and after his victory over Rānā Sāngā, who was the chief of the Rajas of Hindustan, established on the east side of the Jumna, on improved land, a garden (chārbāg͟h) which few places equal in beauty. He gave it the name of Gul-afs͟hān [5](Flower-scatterer), and erected in it a small building of cut red stone, and having completed a mosque on one side of it he intended to make a lofty building, but time failed him and his design was never carried into execution.

In these Memoirs, whenever Ṣāḥib qirānī is written it refers to Amīr Tīmūr Gūrgān; and whenever Firdūs-makānī is mentioned, to Bābar Pāds͟hāh; when Jannat-ās͟hyānī is used, to Humāyūn Pāds͟hāh; and when ʿArs͟h-ās͟hyānī is employed, to my revered father, Jalālu-d-dīn Muḥammad Akbar Pāds͟hāh G͟hāzī.

Melons, mangoes, and other fruits grow well in Agra and its neighbourhood. Of all fruits I am very fond of mangoes. In the reign of my father (ʿArs͟h-ās͟hyānī) many fruits of other countries, which till then were not to be had in India, were obtained there. Several sorts of grapes, such as the ṣāḥibī and the ḥabs͟hī4 and the kis͟hmis͟hī, became common in several towns; for instance, in the bazars of Lahore every kind and variety that may be desired can be had in the grape season. Among fruits, one which they call ananās (pineapple), which is grown in the Frank ports,5 is of excessive fragrance and fine flavour. Many thousands are produced every year now in the Gul-afs͟hān garden at Agra.

From the excellencies of its sweet-scented flowers one may prefer the fragrances of India to those of the flowers of the whole world. It has many such that nothing in the whole world can be compared to them. The first is the champa (Michelia champaca), which is a flower of exceedingly sweet fragrance; it has the shape of the saffron-flower, but is yellow inclining to white. The tree is very symmetrical [6]and large, full of branches and leaves, and is shady. When in flower one tree will perfume a garden. Surpassing this is the keoṛā6 flower (Pandanus odoratissimus). Its shape and appearance are singular, and its scent is so strong and penetrating that it does not yield to the odour of musk. Another is the rāe bel,7 which in scent resembles white jessamine. Its flowers are double and treble (?). Another is the mūlsarī8 (Mimusops Elengi). This tree, too, is very graceful and symmetrical, and is shady. The scent of its flowers is very pleasant. Another is the ketakī9 (Pandanus ?), which is of the nature of the keoṛā, but the latter is thorny, whereas the ketkī has no thorns. Moreover, the ketkī is yellowish, whereas the keoṛā is white. From these two flowers and also from the chambelī10 (Jasminum grandiflorum), which is the white jessamine of wilāyat (Persia or Afghanistan), they extract sweet-scented oils. There are other flowers too numerous to mention. Of trees there are the cypress (sarw), the pine [7](sanūbar), the chanar (Platanus orientalis), the white poplar (safīdār, Populus alba), and the bīd mūllā (willow), which they had formerly never thought of in Hindustan, but are now plentiful. The sandal-tree, which once was peculiar to the islands (i.e., Java, Sumatra, etc.), also flourishes in the gardens.

The inhabitants of Agra exert themselves greatly in the acquirement of crafts and the search after learning. Various professors of every religion and creed have taken up their abode in the city.


Source:  Tūzuk-i-Jahāngīrī

The Water (Prevention And Control of Pollution) Act 1974

The Water (Prevention And Control of Pollution) Act, 1974

(6 of 1974)

23rd March 1974

An Act to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.

Whereas it is expedient to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water, for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution and for conferring on and assigning to such Boards powers and functions relating thereto;

And whereas Parliament has no power to make laws for the States with respect to any of the matters aforesaid except as provided in articles 249 and 250 of the Constitution;

And whereas in pursuance of clause (1) of article 252 of the Constitution resolutions have been passed by all the Houses of the Legislatures of the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal to the effect that the matters aforesaid should be regulated in those States by Parliament by law;

Be it enacted by Parliament in the Twenty-fifth Year of the Republic of India as follows:

CHAPTER I

Preliminary

1. Short title, application and commencement .(1) This Act may be called The Water (Prevention and Control of Pollution) Act , 1974.

(2) It applies in the first instance to the whole of the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal and the Union territories; and it shall apply to such other State which adopts this Act by resolution passed in that behalf under clause (1) of article 252 of the Constitution.

(3) It shall come into force, at once in the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal and in the Union territories, and in any other State which adopts this Act under clause (1) of article 252 of the Constitution on the date of such adoption and any reference in this Act to the commencement of this Act shall, in relation to any State or Union territory, mean the date on which this Act comes into force in such State or Union territory.

2. Definitions .In this Act, unless the context otherwise requires,
(a) Board means the Central Board or a State Board;

(b) Central Board means the Central Pollution Control Board constituted under section 3;

(c) member means a member of a Board and includes the Chairman thereof;

(d) occupier, in relation to any factory or premises, means the person who has control over the affairs of the factory or the premises, and includes, in relation to any substance, the person in possession of the substance;

(dd) outlet, includes any conduit pipe or channel, open or closed, carrying sewage or trade effluent or any other holding arrangement which causes, or is likely to cause, pollution;

(e) pollution means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of acquatic organisms;

(f) prescribed means prescribed by rules made under this Act by the Central Government or, as the case may be, the State Government;

(g) sewage effluent means effluent from any sewerage system or sewage disposal works and includes sullage from open drains;

(gg) sewer means any conduit pipe or channel, open or closed, carrying sewage or trade effluent;

(h) State Board means a State Pollution Control Board constituted under section 4;

(i) State Government in relation to a Union territory means the Administrator thereof appointed under article 239 of the Constitution;

(j) stream includes

(i) river;

(ii) water course (whether flowing or for the time being dry);

(iii) inland water (whether natural or artificial);

(iv) sub-terranean waters;

(v) sea or tidal waters to such extent or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf;

(k) trade effluent includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any [industry, operation or process or treatment and disposal system], other than domestic sewage.

CHAPTER II

The Central And State Boards For Prevention And Control Of Water Pollution

3. Constitution of Central Board .(1) The Central Government shall, with effect from such date (being a date not later than six months of the commencement of this Act in the States of Assam, Bihar, Gujarat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal and in the Union territories) as it may, by notification in the Official Gazette, appoint, constitute a Central Board to be called the [Central Pollution Control Board] to exercise the powers conferred on and perform the functions assigned to that Board under this Act.

(2) The Central Board shall consist of the following members, namely:
(a) a full-time Chairman, being a person having special knowledge or practical experience in respect of [matters relating to environmental protection] or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;

(b) such number of officials, not exceeding five, to be nominated by the Central Government to represent that Government;

(c) such number of persons, not exceeding five, to be nominated by the Central Government, from amongst the members of the State Boards, of whom not exceeding two shall be from those referred to in clause (c) of sub-section (2) of section 4;

(d) such number of non-officials, not exceeding three, to be nominated by the Central Government, to represent the interests of agriculture, fishery or industry or trade or any other interest which, in the opinion of the Central Government, ought to be represented;

(e) two persons to represent the companies or corporations owned, controlled or managed by the Central Government, to be nominated by that Government;

(f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.

(3) The Central Board shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by the aforesaid name, sue or be sued.

4. Constitution of State Boards .(1) The State Government shall, with effect from such date as it may, by notification in the Official Gazette, appoint, constitute a [State Pollution Control Board], under such name as may be specified in the notification, to exercise the powers conferred on and perform the functions assigned to that Board under this Act.
(2) A State Board shall consist of the following members, namely:
(a) a  Chairman, being a person having special knowledge or practical experience in respect of [matters relating to environmental protection] or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the State Government:

Provided that the Chairman may be either whole-time or part-time as the State Government may think fit;

(b) such number of officials, not exceeding five, to be nominated by the State Government to represent that Government;

(c) [such number of persons, not exceeding five,] to be nominated by the State Government from amongst the members of the local authorities functioning within the State;

(d) [such number of non-officials, not exceeding three,] to be nominated by the State Government to represent the interests of agriculture, fishery or industry or trade or any other interests which, in the opinion of the State Government, ought to be represented;

(e) two persons to represent the companies or corporations owned, controlled or managed by the State Government, to be nominated by that Government;

[(f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the State Government.]

(3) Every State Board shall be a body corporate with the name specified by the State Government in the notification under sub-section (1), having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire hold and dispose of property and to contract, and may, by the said name, sue or be sued.

(4) Notwithstanding anything contained in this section, no State Board shall be constituted for a Union territory and in relation to a Union territory, the Central Board shall exercise the powers and perform the functions of a State Board for that Union territory:

Provided that in relation to any Union territory the Central Board may delegate all or any of its powers and functions under this sub-section to such person or body of persons as the Central Government may specify.

5. Terms and conditions of service of members .(1) Save as otherwise provided by or under this Act, a member of a Board, other than a member-secretary, shall hold office for a term of three years from the date of his nomination:
Provided that a member shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.

(2) The term of office of a member of a Board nominated under clause (b) or clause (e) of sub-section (2) of section 3 or clause (b) or clause (e) of sub-section (2) of section 4 shall come to an end as soon as he ceases to hold the office under the Central Government or the State Government or, as the case may be, the company or corporation owned, controlled or managed by the Central Government or the State Government, by virtue of which he was nominated.

(3) The Central Government or, as the case may be, the State Government, may, if it thinks fit, remove any member of a Board before the expiry of his term of office, after giving him a reasonable opportunity of showing cause against the same.

(4) A member of a Board, other than the member-secretary, may at any time resign his office by writing under his hand addressed
(a) in the case of the Chairman, to the Central Government or, as the case may be, the State Government; and

(b) in any other case, to the Chairman of the Board, nd the seat of the Chairman or such other member shall thereupon become vacant.

(5) A member of a Board, other than the member-secretary, shall be deemed to have vacated his seat if he is absent without reason, sufficient in the opinion of the Board, from three consecutive meetings of the Board, [or where he is nominated under clause (c) or clause (e) of sub-section (2) of section 3 or under clause (c) or clause (e) of sub-section (2) of section 4, if he ceases to be a member of the State Board or of the local authority or, as the case may be, of the company or corporation owned, controlled or managed by the Central Government or the State Government and such vacation of seat shall, in either case, take effect from such date as the Central Government or, as the case may be, the State Government may, by notification in the Official Gazette, specify.

(6) A casual vacancy in a Board shall be filled by a fresh nomination and the person nominated to fill the vacancy shall hold office only for the remainder of the term for which the member in whose place he was nominated.

(7) A member of a Board [shall be eligible for renomination.

(8) The other terms and conditions of service of a member of a Board, other than the Chairman and member-secretary, shall be such as may be prescribed.

(9) The other terms and conditions of service of the Chairman shall be such as may be prescribed.

6. Disqualifications . (1) No person shall be a member of a Board, who
(a) is, or at any time has been adjudged insolvent or has suspended payment of his debts or has compounded with his creditors, or

(b) is of unsound mind and stands so declared by a competent Court, or

(c) is, or has been, convicted of an offence which, in the opinion of the Central Government or, as the case may be, of the State Government, involves moral turpitude, or

(d) is, or at any time has been, convicted of an offence under this Act, or

(e) has directly or indirectly by himself or by any partner, any share or interest in any firm or company carrying on the business of manufacture, sale or hire of machinery, plant, equipment, apparatus or fittings for the treatment of a sewage or trade effluents, or

(f) is a director or a secretary, manager or other salaried officer or employee of any company or firm having any contract with the Board, or with the Government constituting the Board, or with a local authority in the State, or with a company or corporation owned, controlled or managed by the Government, for the carrying out of sewerage schemes or for the installation of plants for the treatment of sewage or trade effluents, or

(g) has so abused, in the opinion of the Central Government or as the case may be, of the State Government, his position as a member, as to render his continuance on the Board detrimental to the interest of the general public.

(2) No order of removal shall be made by the Central Government or the State Government, as the case may be, under this section unless the member concerned has been given a reasonable opportunity of showing cause against the same.
(3) Notwithstanding anything contained in sub-sections (1) and (7) of section 5, a member who has been removed under this section shall not be eligible for renomination as a member.

7. Vacation of seats by members .If a member of a Board becomes subject to any of the disqualifications specified in section 6, his seat shall become vacant.

8. Meetings of Board .A Board shall meet at least once in every three months and shall observe such rules of procedure in regard to the transaction of business at its meetings as may be prescribed:

Provided that if, in the opinion of the Chairman, any business of an urgent nature is to be transacted, he may convene a meeting of the Board at such time as he thinks fit for the aforesaid purpose.

9. Constitution of committees .(1) A Board may constitute as many committees consisting wholly of members or wholly of other persons or partly of members and partly of other persons, and for such purpose or purposes as it may think fit.
(2) A committee constituted under this section shall meet at such time and at such place, and shall observe such rules of procedure in regard to the transaction of business at its meetings, as may be prescribed.
(3) The members of a committee (other than the members of the Board) shall be paid such fees and allowances, for attending its meetings and for attending to any other work of the Board as may be prescribed.

10. Temporary association of persons with Board for particular purposes .(1) a Board may associate with itself in such manner, and for such purposes, as may be prescribed any person whose assistance or advice it may desire to obtain in performing any of its functions under this Act.
(2) A person associated with the Board under sub-section (1) for any purpose shall have a right to take part in the discussions of the Board relevant to that purpose, but shall not have a right to vote at a meeting of the Board, and shall not be a member for any other purpose.
(3) A person associated with the Board under sub-section (1) for any purpose shall be paid such fees and allowances, for attending its meetings and for attending to any other work of the Board, as may be prescribed.

11. Vacancy in Board not to invalidate acts or proceedings .No act or proceeding of a Board or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Board or such committee, as the case may be.

11-A. Delegation of powers to Chairman. The Chairman of a Board shall exercise such powers and perform such duties as may be prescribed or as may, from time to time, be delegated to him by the Board.

12. Member-secretary and officers and other employees of Board .(1) The terms and conditions of service of the member-secretary shall be such as may be prescribed.

(2) The member-secretary shall exercise such powers and perform such duties as may be prescribed or as may, from time to time, be delegated to him by the Board or its Chairman.

(3) Subject to such rules as may be made by the Central Government or, as the case may be, the State Government in this behalf, a Board may appoint such officers and employees as it considers necessary for the efficient performance of its functions [* * *].

(3-A) The method of recruitment and the terms and conditions of service (including the scales of pay) of the officers (other than the member-secretary) and other employees of the Central Board or a State Board shall be such as may be determined by regulations made by the Central Board or, as the case may be, by the State Board:

Provided that no regulation made under this sub-section shall take effect unless,
(a) in the case of a regulation made by the Central Board, it is approved by the Central Government; and

(b) in the case of a regulation made by a State Board, it is approved by the State Government.

(3-B) The Board may, by general or special order, and subject to such conditions and limitations, if any, as may be specified in the order, delegate to any officer of the Board such of its powers and functions under this Act as it may deem necessary.

(4) Subject to such conditions as may be prescribed, a Board may from time to time appoint any qualified person to be a consulting engineer to the Board and pay him such salaries and allowances and subject him to such other terms and conditions of service as it thinks fit.

CHAPTER III

Joint Boards

13. Constitution of Joint Boards .(1) Notwithstanding anything contained in this Act, an agreement may be entered into

(a) by two or more Governments of contiguous States, or

(b) by the Central Government (in respect of one or more Union territories) and one or more Governments of States contiguous to such Union territory or Union territories, o be in force for such period and to be subject to renewal for such further period, if any, as may be specified in the agreement to provide for the constitution of a Joint Board,

(i) in a case referred to in clause (a), for all the participating States, and

(ii) in a case referred to in clause (b), for the participating Union territory or Union territories and the State or States.

(2) An agreement under this section may
(a) provide, in a case referred to in clause (a) of sub-section (1), for the apportionment between the participating States and in a case referred to in clause (b) of that sub-section, for the apportionments between the Central Government and the participating State Government or State Governments, of the expenditure in connection with the Joint Board;

(b) determine, in a case referred to in clause (a) of sub-section (1), which of the participating State Governments and in a case referred to in clause (b) of that sub-section, whether the Central Government or the participating State Government (if there are more than one participating State, also which of the participating State Governments) shall exercise and perform the several powers and functions of the State Government under this Act and the references in this Act to the State Government shall be construed accordingly;

(c) provide for consultation, in a case referred to in clause (a) of sub-section (1), between the participating State Governments and in a case referred to in clause (b) of that sub-section, between the Central Government and the participating State Government or State Governments either generally or with reference to particular matters arising under this Act;

(d) make such incidental and ancillary provisions, not inconsistent with this Act, as may be deemed necessary or expedient for giving effect to the agreement.

(3) An agreement under this section shall be published, in a case referred to in clause (a) of sub-section (1), in the Official Gazette of the participating States and in a case referred to in clause (b) of that sub-section, in the Official Gazette of the participating Union territory or Union territories and the participating State or States.

14. Composition of Joint Boards .(1) A Joint Board constituted in pursuance of an agreement entered into under clause (a) of sub-section (1) of section 13 shall consist of the following members, namely:

(a) a full-time Chairman, being a person having special knowledge or practical experience in respect of [matters relating to environmental protection] or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;

(b) two officials from each of the participating States to be nominated by the concerned participating State Government to represent that Government;

(c) one person to be nominated by each of the participating State Governments from amongst the members of the local authorities functioning within the State concerned;

(d) one non-official to be nominated by each of the participating State Governments to represent the interests of agriculture, fishery or industry or trade in the State concerned or any other interest which, in the opinion of the participating State Government, is to be represented;

(e) two persons to be nominated by the Central Government to represent the companies or corporations owned, controlled or managed by the participating State Governments;

(f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.

(2) A Joint Board constituted in pursuance of an agreement entered into under clause (b) of sub-section (1) of section 13 shall consist of the following members, namely:

(a) a full-time Chairman, being a person having special knowledge or practical experience in respect of [matters relating to environmental protection] or a person having knowledge and experience in administering institutions dealing with the matters aforesaid, to be nominated by the Central Government;

(b) two officials to be nominated by the Central Government from the participating Union territory or each of the participating Union territories, as the case may be, and two officials to be nominated, from the participating State or each of the participating States, as the case may be, by the concerned participating State Government;

(c) one person to be nominated by the Central Government from amongst the members of the local authorities functioning within the participating Union territory or each of the participating Union territories, as the case may be, and one person to be nominated, from amongst the members of the local authorities functioning within the participating State or each of the participating States, as the case may be, by the concerned participating State Government;

(d) one non-official to be nominated by the Central Government and one person to be nominated by the participating State Government or State Governments to represent the interests of agriculture, fishery or industry or trade in the Union territory or in each of the Union territories or the State or in each of the States, as the case may be, or any other interest which in the opinion of the Central Government or, as the case may be, of the State Government is to be represented;

(e) two persons to be nominated by the Central Government to represent the companies or corporations owned, controlled or managed by the Central Government and situate in the participating Union territory or territories and two persons to be nominated by the Central Government to represent the companies or corporations owned, controlled or managed by the participating State Governments;

(f) a full-time member-secretary, possessing qualifications, knowledge and experience of scientific, engineering or management aspects of pollution control, to be appointed by the Central Government.

(3) When a Joint Board is constituted in pursuance of an agreement under clause (b) of sub-section (1) of section 13, the provisions of sub-section (4) of section 4 shall cease to apply in relation to the Union territory for which the Joint Board is constituted.

(4) Subject to the provisions of sub-section (3), the provisions of sub-section (3) of section 4 and sections 5 to 12 (inclusive) shall apply in relation to the Joint Board and its member-secretary as they apply in relation to a State Board and its member-secretary.

(5) Any reference in this Act to the State Board shall, unless the context otherwise requires, be construed as including a Joint Board.

15. Special provision relating to giving of directions .Notwithstanding anything contained in this Act where any Joint Board is constituted under section 13,

(a) the Government of the State for which the Joint Board is constituted shall be competent to give any direction under this Act only in cases where such direction relates to a matter within the exclusive territorial jurisdiction of the State;

(b) the Central Government alone shall be competent to give any direction under this Act where such direction relates to a matter within the territorial jurisdiction of two or more States or pertaining to a Union territory.

CHAPTER IV

Powers And Functions Of Boards

16. Functions of Central Board .(1) Subject to the provisions of this Act, the main function of the Central Board shall be to promote cleanliness of streams and wells in different areas of the States.

(2) In particular and without prejudice to the generality of the foregoing function, the Central Board may perform all or any of the following functions, namely:
(a) advise the Central Government on any matter concerning the prevention and control of water pollution;

(b) co-ordinate the activities of the State Boards and resolve disputes among them;

(c) provide technical assistance and guidance to the State Boards, carry out and sponsor investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution;

(d) plan and organise the training of persons engaged or to be engaged in programmes for the prevention, control or abatement of water pollution on such terms and conditions as the Central Board may specify;

(e) organise through mass media a comprehensive programme regarding the prevention and control of water pollution;

(ee) perform such of the functions of any State Board as may be specified in an order made under sub-section (2) of section 18;

(f) collect, compile and publish technical and statistical data relating to water pollution and the measures devised for its effective prevention and control and prepare manuals, codes or guides relating to treatment and disposal of sewage and trade effluents and disseminate information connected therewith;

(g) lay down, modify or annul, in consultation with the State Government concerned, the standards for a stream or well:

Provided that different standards may be laid down for the same stream or well or for different streams or wells, having regard to the quality of water, flow characteristics of the stream or well and the nature of the use of the water in such stream or well or streams or wells;

(h) plan and cause to be executed a nation-wide programme for the prevention, control or abatement of water pollution;

(i) perform such other functions as may be prescribed.

(3) The Board may establish or recognise a laboratory or laboratories to enable the Board to perform its functions under this section efficiently, including the analysis of samples of water from any stream or well or of samples of any sewage or trade effluents.

17. Functions of State Board .(1) Subject to the provisions of this Act, the functions of a State Board shall be

(a) to plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and to secure the execution thereof;

(b) to advise the State Government on any matter concerning the prevention, control or abatement of water pollution;

(c) to collect and disseminate information relating to water pollution and the prevention, control or abatement thereof;

(d) to encourage, conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution;

(e) to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of water pollution and to organise mass education programmes relating thereto;

(f) to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant of any consent as required by this Act;

(g) to lay down, modify or annul effluent standards for the sewage and trade effluents and for the quality of receiving waters (not being water in an inter-State stream) resulting from the discharge of effluents and to classify waters of the State;

(h) to evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soils, climate and water resources of different regions and more especially the prevailing flow characteristics of water in streams and wells which render it impossible to attain even the minimum degree of dilution;

(i) to evolve methods of utilisation of sewage and suitable trade effluents in agriculture;

(j) to evolve efficient methods of disposal of sewage and trade effluents on land, as are necessary on account of the predominant conditions of scant stream flows that do not provide for major part of the year the minimum degree of dilution;

(k) to lay down standards of treatment of sewage and trade effluents to be discharged into any particular stream taking into account the minimum fair weather dilution available in that stream and the tolerance limits of pollution permissible in the water of the stream, after the discharge of such effluents;

(l) to make, vary or revoke any order

(i) for the prevention, control or abatement of discharges of waste into streams or wells;

(ii) requiring any person concerned to construct new systems for the disposal of sewage and trade effluents or to modify, alter or extend any such existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution;

(m) to lay down effluent standards to be complied with by persons while causing discharge of sewage or sullage or both and to lay down, modify or annul effluent standards for the sewage and trade effluents;

(n) to advise the State Government with respect to the location of any industry the carrying on of which is likely to pollute a stream or well;

(o) to perform such other functions as may be prescribed or as may, from time to time, be entrusted to it by the Central Board or the State Government.

(2) The Board may establish or recognise a laboratory or laboratories to enable the Board to perform its functions under this section efficiently, including the analysis of samples of water from any stream or well or of samples of any sewage or trade effluents.

18. Powers to give directions .(1) In the performance of its functions under this Act
(a) the Central Board shall be bound by such directions in writing as the Central Government may give to it; and

(b) every State Board shall be bound by such directions in writing as the Central Board or the State Government may give to it:

Provided that where a direction given by the State Government is inconsistent with the direction given by the Central Board, the matter shall be referred to the Central Government for its decision.

(2) Where the Central Government is of the opinion that any State Board has defaulted in complying with any directions given by the Central Board under sub-section (1) and as a result of such default a grave emergency has arisen and it is necessary or expedient so to do in the public interest, it may, by order, direct the Central Board to perform any of the functions of the State Board in relation to such area, for such period and for such purposes, as may be specified in the order.

(3) Where the Central Board performs any of the functions of the State Board in pursuance of a direction under sub-section (2), the expenses, if any, incurred by the Central Board with respect to the performance of such functions may, if the State Board is empowered to recover such expenses, be recovered by the Central Board with interest (at such reasonable rate as the Central Government may, by order, fix) from the date when a demand for such expenses is made until it is paid from the person or persons concerned as arrears of land revenue or of public demand.

(4) For the removal of doubts, it is hereby declared that any directions to perform the functions of any State Board given under sub-section (2) in respect of any area would not preclude the State Board from performing such functions in any other area in the State or any of its other functions in that area.

CHAPTER V

Prevention And Control Of Water Pollution

19. Power of State Government to restrict the application of the Act to certain areas .(1) Notwithstanding anything contained in this Act, if the State Government, after consultation with, or on the recommendation of, the State Board, is of opinion that the provisions of this Act need not apply to the entire State, it may, by notification in the Official Gazette, restrict the application of this Act to such area or areas as may be declared therein as water pollution, prevention and control area or areas and thereupon the provisions of this Act shall apply only to such area or areas.

(2) Each water pollution, prevention and control area may be declared either by reference to a map or by reference to the line of any watershed or the boundary of any district or partly by one method and partly by another.

(3) The State Government may, by notification in the Official Gazette,
(a) alter any water pollution, prevention and control area whether by way of extension or reduction; or

(b) define a new water pollution, prevention and control area in which may be merged one or more water pollution, prevention and control areas, or any part or parts thereof.

20. Power to obtain information .(1) For the purpose of enabling a State Board to perform the functions conferred on it by or under this Act, the State Board or any officer empowered by it in that behalf, may make surveys of any area and gauge and keep records of the flow or volume and other characteristics of any stream or well in such area, and may take steps for the measurement and recording of the rainfall in such area or any part thereof and for the installation and maintenance for those purposes of gauges or other apparatus and works connected therewith, and carry out stream surveys and may take such other steps as may be necessary in order to obtain any information required for the purposes aforesaid.

(2) A State Board may give directions requiring any person who in its opinion is abstracting water from any such stream or well in the area in quantities which are substantial in relation to the flow or volume of that stream or well or is discharging sewage or trade effluent into any such stream or well, to give such information as to the abstraction or the discharge at such times and in such form as may be specified in the directions.

(3) Without prejudice to the provisions of sub-section (2), a State Board may, with a view to preventing or controlling pollution of water, give directions requiring any person in charge of any establishment where any [industry, operation or process, or treatment and disposal system] is carried on, to furnish to it information regarding the construction, installation or operation of such establishment or of any disposal system or of any extension or addition thereto in such establishment and such other particulars as may be prescribed.

21. Power to take samples of effluents and procedure to be followed in connection therewith .(1) A State Board or any officer empowered by it in this behalf shall have power to take for the purpose of analysis samples of water from any stream or well or samples of any sewage or trade effluent which is passing from any plant or vessel or from or over any place into any such stream or well.

(2) The result of any analysis of a sample of any sewage or trade effluent taken under sub-section (1) shall not be admissible in evidence in any legal proceeding unless the provisions of sub-sections (3), (4) and (5) are complied with.

(3) Subject to the provisions of sub-sections (4) and (5), when a sample (composite or otherwise as may be warranted by the process used) of any sewage or trade effluent is taken for analysis under sub-section (1), the person taking the sample shall

(a) serve on the person in charge of, or having control over, the plant or vessel or in occupation of the place (which person is hereinafter referred to as the occupier) or any agent of such occupier, a notice, then and there in such form as may be prescribed of his intention to have it so analysed;

(b) in the presence of the occupier or his agent, divide the sample into two parts;

(c) cause each part to be placed in a container which shall be marked and sealed and shall also be signed both by the person taking the sample and the occupier or his agent;

(d) send one container forthwith,

(i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or recognised by the Central Board under section 16; and

(ii) in any other case, to the laboratory established or recognised by the State Board under section 17;

(e) on the request of the occupier or his agent, send the second container,

(i) in a case where such sample is taken from any area situated in a Union territory, to the laboratory established or specified under sub-section (1) of section 51; and

(ii) in any other case, to the laboratory established or specified under sub-section (1) of section 52.

(4) When a sample of any sewage or trade effluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent, a notice under clause (a) of sub-section (3) and the occupier or his agent wilfully absents himself, then,
(a) the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (e) of sub-section (3) and such person shall inform the Government analyst appointed under sub-section (1) or sub-section (2), as the case may be, of section 53, in writing about the wilful absence of the occupier or his agent; and

(b) the cost incurred in getting such sample analysed shall be payable by the occupier or his agent and in case of default of such payment, the same shall be recoverable from the occupier or his agent, as the case may be, as an arrear of land revenue or of public demand:

Provided that no such recovery shall be made unless the occupier or, as the case may be, his agent has been given a reasonable opportunity of being heard in the matter.

(5) When a sample of any sewage or trade effluent is taken for analysis under sub-section (1) and the person taking the sample serves on the occupier or his agent a notice under clause (a) of sub-section (3) and the occupier or his agent who is present at the time of taking the sample does not make a request for dividing the sample into two parts as provided in clause (b) of sub-section (3), then, the sample so taken shall be placed in a container which shall be marked and sealed and shall also be signed by the person taking the sample and the same shall be sent forthwith by such person for analysis to the laboratory referred to in sub-clause (i) or sub-clause (ii), as the case may be, of clause (d) of sub-section (3).

22. Reports of the result of analysis on samples taken under section 21 .(1) Where a sample of any sewage or trade effluent has been sent for analysis to the laboratory established or recognised by the Central Board or, as the case may be, the State Board, the concerned Board analyst appointed under sub-section (3) of section 53 shall analyse the sample and submit a report in the prescribed form of the result of such analysis in triplicate to the Central Board or the State Board, as the case may be.
(2) On receipt of the report under sub-section (1), one copy of the report shall be sent by the Central Board or the State Board, as the case may be, to the occupier or his agent referred to in section 21, another copy shall be preserved for production before the Court in case any legal proceedings are taken against him and the other copy shall be kept by the concerned Board.
(3) Where a sample has been sent for analysis under clause (e) of sub-section (3) or sub-section (4) of section 21 to any laboratory mentioned therein, the Government analyst referred to in that sub-section shall analyse the sample and submit a report in the prescribed form of the result of the analysis in triplicate to the Central Board or, as the case may be, the State Board which shall comply with the provisions of sub-section (2).
(4) If there is any inconsistency or discrepancy between, or variation in the results of, the analysis carried out by the laboratory established or recognised by the Central Board or the State Board, as the case may be, and that of the laboratory established or specified under section 51 or section 52, as the case may be, the report of the latter shall prevail.
(5) Any cost incurred in getting any sample analysed at the request of the occupier or his agent shall be payable by such occupier or his agent and in case of default the same shall be recoverable from him as arrears of land revenue or of public demand.

23. Power of entry and inspection .(1) Subject to the provisions of this section, any person empowered by a State Board in this behalf shall have a right at any time to enter, with such assistance as he considers necessary, any place
(a) for the purpose of performing any of the functions of the Board entrusted to him;

(b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given, or granted under this Act is being or has been complied with;

(c) for the purpose of examining any plant, record, register, document or any other material object or for conducting a search of any place in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and for seizing any such plant, record, register, document or other material object, if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder:

Provided that the right to enter under this sub-section for the inspection of a well shall be exercised only at reasonable hours in a case where such well is situated in any premises used for residential purposes and the water thereof is used exclusively for domestic purposes.

(2) The provisions of [the Code of Criminal Procedure, 1973 (2 of 1974)], or, in relation to the State of Jammu and Kashmir, the provisions of any corresponding law in force in that State, shall, so far as may be, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 94 of the said Code, or, as the case may be, under the corresponding provisions of the said law.

Explanation. For the purposes of this section, place includes vessel.

24. Prohibition on use of stream or well for disposal of polluting matter, etc .(1) Subject to the provisions of this section,
(a) no person shall knowingly cause or permit any poisonous, noxious or polluting matter determined in accordance with such standards as may be laid down by the State Board to enter (whether directly or indirectly) into any [stream or well or sewer or on land]; or

(b) no person shall knowingly cause or permit to enter into any stream any other matter which may tend, either directly or in combination with similar matters, to impede the proper flow of the water of the stream in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of its consequences.

(2) A person shall not be guilty of an offence under sub-section (1), by reason only of having done or caused to be done any of the following acts, namely:
(a) constructing, improving or maintaining in or across or on the bank or bed of any stream any building, bridge, weir dam, sluice, dock, pier, drain or sewer or other permanent works which he has a right to construct, improve or maintain;

(b) depositing any materials on the bank or in the bed of any stream for the purpose of reclaiming land or for supporting, repairing or protecting the bank or bed of such stream provided such materials are not capable of polluting such stream;

(c) putting into any stream any sand or gravel or other natural deposit which has flowed from or been deposited by the current of such stream;

(d) causing or permitting, with the consent of the State Board, the deposit accumulated in a well, pond or reservoir to enter into any stream.

(3) The State Government may, after consultation with, or on the recommendation of, the State Board, exempt, by notification in the Official Gazette, any person from the operation of sub-section (1) subject to such conditions, if any, as may be specified in the notification and any condition so specified may by a like notification be altered, varied or amended.

25. Restrictions on new outlets and new discharges .[(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or

(b) bring into use any new or altered outlet for the discharge of sewage; or

(c) begin to make any new discharge of sewage:

Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, if he has made an application for such consent, within the said period of three months, till the disposal of such application.

(2) An application for consent of the State Board under sub-section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed.

(3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed.

(4) The State Board may

(a) grant its consent referred to in sub-section (1), subject to such conditions as it may impose, being

(i) in cases referred to in clauses (a) and (b) of sub-section (1) of section 25, conditions as to the point of discharge of sewage or as to the use of that outlet or any other outlet for discharge of sewage;

(ii) in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and

(iii) that the consent will be valid only for such period as may be specified in the order, nd any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or process, or treatment and disposal system or extension or addition thereto, or using the new or altered outlet, or discharging the effluent from the land or premises aforesaid; or

(b) refuse such consent for reasons to be recorded in writing.

(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge.
(6) Every State Board shall maintain a register containing particulars of the conditions imposed under this section and so much of the register as relates to any outlet, or to any effluent, from any land or premises shall be open to inspection at all reasonable hours by any person interested in, or affected by such outlet, land or premises, as the case may be, or by any person authorised by him in this behalf and the conditions so contained in such register shall be conclusive proof that the consent was granted subject to such conditions.]
(7) The consent referred to in sub-section (1) shall, unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months of the making of an application in this behalf complete in all respects to the State Board.
(8) For the purposes of this section and sections 27 and 30,
(a) the expression new or altered outlet means any outlet which is wholly or partly constructed on or after the commencement of this Act or which (whether so constructed or not) is substantially altered after such commencement;

(b) the expression new discharge means a discharge which is not, as respects the nature and composition, temperature, volume, and rate of discharge of the effluent substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so, however, that a discharge which is in other respects a continuation of previous discharge made as aforesaid shall not be deemed to be a new discharge by reason of any reduction of the temperature or volume or rate of discharge of the effluent as compared with the previous discharge.

26. Provision regarding existing discharge of sewage or trade effluent .Where immediately before the commencement of this Act any person was discharging any sewage or trade effluent into a [stream or well or sewer or on land], the provisions of section 25 shall, so far as may be, apply in relation to such person as they apply in relation to the person referred to in that section subject to the modification that the application for consent to be made under sub-section (2) of that section [shall be made on or before such date as may be specified by the State Government by notification in this behalf in the Official Gazette.]

27. Refusal or withdrawal of consent by State Board .[(1) A State Board shall not grant its consent under sub-section (4) of section 25 for the establishment of any industry, operation or process, or treatment and disposal system or extension or addition thereto, or to the bringing into use of a new or altered outlet unless the industry, operation or process, or treatment and disposal system or extension or addition thereto, or the outlet is so established at to comply with any conditions imposed by the Board to enable it to exercise its right to take samples of the effluent.
(2) A State Board may from time to time review
(a) any condition imposed under section 25 or section 26 and may serve on the person to whom a consent under section 25 or section 26 is granted a notice making any reasonable variation of or revoking any such condition;

(b) the refusal of any consent referred to in sub-section (1) of section 25 or section 26 or the grant of such consent without any condition, and may make such orders as it deems fit.

(3) Any condition imposed under section 25 or section 26 shall be subject to any variation made under sub-section (2) and shall continue in force until revoked under that sub-section.

28. Appeals .(1) Any person aggrieved by an order made by the State Board under section 25, section 26 or section 27 may, within thirty days from the date on which the order is communicated to him, prefer an appeal to such authority (hereinafter referred to as the appellate authority) as the State Government may think fit to constitute:
Provided that the appellate authority may entertain the appeal after the expiry of the said period of thirty days if such authority is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(2) An appellate authority shall consist of a single person or three persons as the State Government may think fit, to be appointed by that Government.
(3) The form and manner in which an appeal may be preferred under sub-section (1), the fees payable for such appeal and the procedure to be followed by the appellate authority shall be such as may be prescribed.
(4) On receipt of an appeal preferred under sub-section (1), the appellate authority shall, after giving the appellant and the State Board an opportunity of being heard, dispose of the appeal as expeditiously as possible.
(5) If the appellate authority determines that any condition imposed, or the variation of any condition, as the case may be, was unreasonable, then,
(a) where the appeal is in respect of the unreasonableness of any condition imposed, such authority may direct either that the condition shall be treated as annulled or that there shall be substituted for it such condition as appears to it to be reasonable;

(b) where the appeal is in respect of the unreasonableness of any variation of a condition, such authority may direct either that the condition shall be treated as continuing in force unvaried or that it shall be varied in such manner as appears to it to be reasonable.

29. Revision .(1) The State Government may at any time either of its own motion or on an application made to it in this behalf, call for the records of any case where an order has been made by the State Board under section 25, section 26 or section 27 for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it may think fit:
Provided that the State Government shall not pass any order under this sub-section without affording the State Board and the person who may be affected by such order a reasonable opportunity of being heard in the matter.
(2) The State Government shall not revise any order made under section 25, section 26, or section 27 where an appeal against that order lies to the appellate authority, but has not been preferred or where an appeal has been preferred such appeal is pending before the appellate authority.

30. Power of State Board to carry out certain works .[(1) Where under this Act, any conditions have been imposed on any person while granting consent under section 25 or section 26 and such conditions require such person to execute any work in connection therewith and such work has not been executed within such time as may be specified in this behalf, the State Board may serve on the person concerned a notice requiring him within such time (not being less than thirty days) as may be specified in the notice to execute the work specified therein.
(2) If the person concerned fails to execute the work as required in the notice referred to in sub-section (1), then, after the expiration of the time specified in the said notice, the State Board may itself execute or cause to be executed such work.
(3) All expenses incurred by the State Board for the execution of the aforesaid work, together with interest, at such rate as the State Government may, by order, fix, from the date when a demand for the expenses is made until it is paid, may be recovered by that Board from the person concerned, as arrears of land revenue, or of public demand.

31. Furnishing of information to State Board and other agencies in certain cases .(1) If at any place where any industry, operation or process, or any treatment and disposal system or any extension or addition thereto is being carried on, due to accident or other unforeseen act or event, any poisonous, noxious or polluting matter is being discharged, or is likely to be discharged into a stream or well or sewer or on land and, as a result of such discharge, the water in any stream or well is being polluted, or is likely to be polluted, then the person incharge of such place shall forthwith intimate the occurrence of such accident, act or event to the State Board and such other authorities or agencies as may be prescribed.
(2) Where any local authority operates any sewerage system or sewage works, the provisions of sub-section (1) shall apply to such local authority as they apply in relation to the person incharge of the place where any industry or trade is being carried on.

32. Emergency measures in case of pollution of stream or well .(1) Where it appears to the State Board that any poisonous, noxious or polluting matter is present in [any stream or well or on land by reason of the discharge of such matter in such stream or well or on such land] or has entered into that stream or well due to any accident or other unforeseen act or event, and if the Board is of opinion that it is necessary or expedient to take immediate action, it may for reasons to be recorded in writing, carry out such operations, as it may consider necessary for all or any of the following purposes, that is to say,
(a) removing that matter from the [stream or well or on land] and disposing it of in such manner as the Board considers appropriate;

(b) remedying or mitigating any pollution caused by its presence in the stream or well;

(c) issuing orders immediately restraining or prohibiting the person concerned from discharging any poisonous, noxious or polluting matter [into the stream or well or on land], or from making insanitary use of the stream or well.

(2) The power conferred by sub-section (1) does not include the power to construct any works other than works of a temporary character which are removed on or before the completion of the operations.

33. Power of Board to make application to Courts for restraining apprehended pollution of water in streams or wells .[(1) Where it is apprehended by a Board that the water in any stream or well is likely to be polluted by reason of the disposal or likely disposal of any matter in such stream or well or in any sewer or on any land, or otherwise, the Board may make an application to a Court, not inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class, for restraining the person who is likely to cause such pollution from so causing.]
(2) On receipt of an application under sub-section (1) the Court may make such order as it deems fit.
(3) Where under sub-section (2) the Court makes an order restraining any person from polluting the water in any stream or well, it may in that order
(i) direct the person who is likely to cause or has caused the pollution of the water in the stream or well, to desist from taking such action as is likely to cause pollution or, as the case may be, to remove from such stream or well, such matter, and

(ii) authorise the Board, if the direction under clause (i) (being a direction for the removal of any matter from such stream or well) is not complied with by the person to whom such direction is issued, to undertake the removal and disposal of the matter in such manner as may be specified by the Court.

(4) All expenses incurred by the Board in removing any matter in pursuance of the authorisation under clause (ii) of sub-section (3) or in the disposal of any such matter may be defrayed out of any money obtained by the Board from such disposal and any balance outstanding shall be recoverable from the person concerned as arrears of land revenue or of public demand.

33-A. Power to give directions .Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shall be bound to comply with such directions.
Explanation. For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct
(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service.

CHAPTER VI

Funds, Accounts And Audit

34. Contributions by Central Government .The Central Government may, after due appropriation made by Parliament by law in this behalf, make in each financial year such contributions to the Central Board as it may think necessary to enable the Board to perform its functions under this Act.

35. Contributions by State Government .The State Government may, after due appropriation made by the Legislature of the State by law in this behalf, make in each financial year such contributions to the State Board as it may think necessary to enable that Board to perform its functions under this Act.

36. Fund of Central Board .(1) The Central Board shall have its own fund, and all sums which may, from time to time, be paid to it by the Central Government and all other receipts (by way of gifts, grants, donations, benefactions, fees or otherwise) of that Board shall be carried to the fund of the Board and all payments by the Board shall be made therefrom.

(2) The Central Board may expend such sums as it thinks fit for performing its functions under this Act [and, where any law for the time being in force relating to the prevention, control or abatement of air pollution provides for the performance of any function under such law by the Central Board, also for performing its functions under such law and such sums shall be treated as expenditure payable out of the fund of that Board.

37. Fund of State Board .(1) The State Board shall have its own fund, and the sums which may, from time to time, be paid to it by the State Government and all other receipts (by way of gifts, grants, donations, benefactions [, fees] or otherwise) of that Board shall be carried to the fund of the Board and all payments by the Board shall be made therefrom.
(2) The State Board may expend such sums as it thinks fit for performing its functions under this Act [and, where any law for the time being in force relating to the prevention, control or abatement of air pollution provides for the performance of any function under such law by the State Board, also for performing its functions under such law], and such sums shall be treated as expenditure payable out of the fund of that Board.

37-A. Borrowing powers of Board .A Board may, with the consent of, or in accordance with, the terms of any general or special authority given to it by the Central Government or, as the case may be, the State Government, borrow money from any source by way of loans or issue of bonds, debentures or such other instruments, as it may deem fit, for the performance of all or any of its functions under this Act.

38. Budget .The Central Board or, as the case may be, the State Board shall, during each financial year, prepare, in such form and at such time as may be prescribed, a budget in respect of the financial year next ensuing showing the estimated receipt and expenditure, and copies thereof shall be forwarded to the Central Government or, as the case may be, the State Government.

39. Annual report .(1) The Central Board shall, during each financial year, prepare, in such form as may be prescribed, an annual report giving full account of its activities under this Act during the previous financial year and copies thereof shall be forwarded to the Central Government within four months from the last date of the previous financial year and that Government shall cause every such report to be laid before both Houses of Parliament within nine months from the last date of the previous financial year.
(2) Every State Board shall, during each financial year, prepare, in such form as may be prescribed, an annual report giving full account of its activities under this Act during the previous financial year and copies thereof shall be forwarded to the State Government within four months from the last date of the previous financial year and that Government shall cause every such report to be laid before the State Legislature within a period of nine months from the last date of the previous financial year.

40. Accounts and audit .(1) Every Board shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government or, as the case may be, the State Government.
(2) The accounts of the Board shall be audited by an auditor duly qualified to act as an auditor of companies under section 226 of the Companies Act, 1956 (1 of 1956).
(3) The said auditor shall be appointed by the Central Government or, as the case may be, the State Government on the advice of the Comptroller and Auditor-General of India.
(4) Every auditor appointed to audit the accounts of the Board under this Act shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Board.
(5) Every such auditor shall send a copy of his report together with an audited copy of the accounts to the Central Government or, as the case may be, the State Government.
(6) The Central Government shall, as soon as may be after the receipt of the audit report under sub-section (5), cause the same to be laid before both Houses of Parliament.
(7) The State Government shall, as soon as may be after the receipt of the audit report under sub-section (5), cause the same to be laid before the State Legislature.

CHAPTER VII

Penalties And Procedure

41. Failure to comply with directions under sub-section (2) or sub-section (3) of section 20, or orders issued under clause (c) of sub-section (1) of section 32 or directions issued under sub-section (2) of section 33 or section 33-A .(1) Whoever fails to comply with any direction given under sub-section (2) or sub-section (3) of section 20 within such time as may be specified in the direction shall, on conviction, be punishable with imprisonment for a term which may extend to three months or with fine which may extend to ten thousand rupees or with both and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.
(2) Whoever fails to comply with any order issued under clause (c) of sub-section (1) of section 32 or any direction issued by a Court under sub-section (2) of section 33 or any direction issued under section 33-A shall, in respect of each such failure and on conviction, be punishable with imprisonment for a term which shall not be less than one year and six months but which may extend to six years and with fine, and in case the failure continues, with an additional fine which may extend to five thousand rupees for every day during which such failure continues after the conviction for the first such failure.
(3) If the failure referred to in sub-section (2) continues beyond a period of one year after the date of conviction, the offender shall, on conviction, be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and with fine.

42. Penalty for certain acts .(1) Whoever
(a) destroys, pulls down, removes, injures or defaces any pillar, post or stake fixed in the ground or any notice or other matter put up, inscribed or placed, by or under the authority of the Board, or

(b) obstructs any person acting under the orders or directions of the Board from exercising his powers and performing his functions under this Act, or

(c) damages any works or property belonging to the Board, or

(d) fails to furnish to any officer or other employee of the Board any information required by him for the purpose of this Act, or

(e) fails to intimate the occurrence of any accident or other unforeseen act or event under section 31 to the Board and other authorities or agencies as required by that section, or

(f) in giving any information which he is required to give under this Act, knowingly or wilfully makes a statement which is false in any material particular, or

(g) for the purpose of obtaining any consent under section 25 or section 26, knowingly or wilfully makes a statement which is false in any material particular, hall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to [ten thousand rupees] or with both.

(2) Where for the grant of a consent in pursuance of the provisions of section 25 or section 26 the use of meter or gauge or other measure or monitoring device is required and such device is used for the purposes of those provisions, any person who knowingly or wilfully alters or interferes with that device so as to prevent it from monitoring or measuring correctly shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to [ten thousand rupees] or with both.

43. Penalty for contravention of provisions of section 24.Whoever contravenes the provisions of section 24 shall be punishable with imprisonment for a term which shall not be less than [one year and six months] but which may extend to six years and with fine.

44. Penalty for contravention of section 25 or section 26 .Whoever contravenes the provisions of section 25 or section 26 shall be punishable with imprisonment for a term which shall not be less than [one year and six months] but which may extend to six years and with fine.

45. Enhanced penalty after previous conviction .If any person who has been convicted of any offence under section 24 or section 25 or section 26 is again found guilty of an offence involving a contravention of the same provision, he shall, on the second and on every subsequent conviction, be punishable with imprisonment for a term which shall not be less than [two years] but which may extend to seven years and with fine:
Provided that for the purpose of this section no cognizance shall be taken of any conviction made more than two years before the commission of the offence which is being punished.

45-A. Penalty for contravention of certain provisions of the Act .Whoever contravenes any of the provisions of this Act or fails to comply with any order or direction given under this Act, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment which may extend to three months or with fine which may extend to ten thousand rupees or with both, and in the case of a continuing contravention or failure, with an additional fine which may extend to five thousand rupees for every day during which such contravention or failure continues after conviction for the first such contravention or failure.]

46. Publication of names of offenders .If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the Court before which the second or subsequent conviction takes place to cause the offenders name and place of residence, the offence and the penalty imposed to be published at the offenders expense in such newspapers or in such other manner as the Court may direct and the expenses of such publication shall be deemed to be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.

47. Offences by companies .(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation. For the purposes of this section,
(a) company means any body corporate, and includes a firm or other association of individuals; and

(b) director in relation to a firm means a partner in the firm.

48. Offences by Government Departments .Where an offence under this Act has been committed by any Department of Government, the Head of the Department shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this section shall render such Head of the Department liable to any punishment if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

49. Cognizance of offences .(1) No Court shall take cognizance of any offence under this Act except on a complaint made by
(a) a Board or any officer authorised in this behalf by it; or

(b) any person who has given notice of not less than sixty days, in the manner prescribed, of the alleged offence and of his intention to make a complaint, to the Board or officer authorised as aforesaid, nd no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act.

(2) Where a complaint has been made under clause (b) of sub-section (1), the Board shall, on demand by such person, make available the relevant reports in its possession to that person:
Provided that the Board may refuse to make any such report available to such person if the same is, in its opinion, against the public interest.

(3) Notwithstanding anything contained in section 29 of the Code of Criminal Procedure, 1973 (2 of 1974)], it shall be lawful for any Judicial Magistrate of the first class or for any Metropolitan Magistrate to pass a sentence of imprisonment for a term exceeding two years or of fine exceeding two thousand rupees on any person convicted of an offence punishable under this Act.

50. Members, officers and servants of Board to be public servants. All members, officers and servants of a Board when acting or purporting to act in pursuance of any of the provisions of this Act and the rules made thereunder shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

CHAPTER VIII

Miscellaneous

51. Central Water Laboratory.(1) The Central Government may, by notification in the Official Gazette,
(a) establish a Central Water Laboratory; or

(b) specify any laboratory or institute as a Central Water Laboratory, to carry out the functions entrusted to the Central Water Laboratory under this Act.

(2) The Central Government may, after consultation with the Central Board, make rules prescribing
(a) the functions of the Central Water Laboratory;

(b) the procedure for the submission to the said laboratory of samples of water or of sewage or trade effluent for analysis or tests, the form of the laboratorys report thereunder and the fees payable in respect of such report;

(c) such other matters as may be necessary or expedient to enable that laboratory to carry out its functions.

52. State Water Laboratory.(1) The State Government may, by notification in the Official Gazette,
(a) establish a State Water Laboratory; or

(b) specify any laboratory or institute as a State Water Laboratory, to carry out the functions entrusted to the State Water Laboratory under this Act.

(2) The State Government may, after consultation with the State Board, make rules prescribing
(a) the functions of the State Water Laboratory;

(b) the procedure for the submission to the said laboratory of samples of water or of sewage or trade effluent for analysis or tests, the form of the laboratorys report thereon and the fees payable in respect of such report;

(c) such other matters as may be necessary or expedient to enable that laboratory to carry out its functions.

53. Analysts.(1) The Central Government may, by notification in the Official Gazette, appoint such persons as it thinks fit and having the prescribed qualifications to be Government analysts for the purpose of analysis of samples of water or of sewage or trade effluent sent for analysis to any laboratory established or specified under sub-section (1) of section 51.
(2) The State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit and having the prescribed qualifications to be Government analysts for the purpose of analysis of samples of water or of sewage or trade effluent sent for analysis to any laboratory established or specified under sub-section (1) of section 52.
(3) Without prejudice to the provisions of sub-section (3) of section 12, the Central Board or, as the case may be, the State Board may, by notification in the Official Gazette, and with the approval of the Central Government or the State Government, as the case may be, appoint such persons as it thinks fit and having the prescribed qualifications to be Board analysts for the purpose of analysis of samples of water or of sewage or trade effluent sent for analysis to any laboratory established or recognised under section 16, or, as the case may be, under section 17.

54. Reports of analysts .Any document purporting to be a report signed by a Government analyst or, as the case may be, a Board analyst may be used as evidence of the facts stated therein in any proceeding under this Act.

55. Local authorities to assist .All local authorities shall render such help and assistance and furnish such information to the Board as it may require for the discharge of its functions, and shall make available to the Board for inspection and examination such records, maps, plans and other documents as may be necessary for the discharge of its functions.

56. Compulsory acquisition of land for the State Board .Any land required by a State Board for the efficient performance of its functions under this Act shall be deemed to be needed for a public purpose and such land shall be acquired for the State Board under the provisions of the Land Acquisition Act, 1894 (1 of 1894), or under any other corresponding law for the time being in force.

57. Returns and reports .The Central Board shall furnish to the Central Government, and a State Board shall furnish to the State Government and to the Central Board such reports, returns, statistics, accounts and other information with respect to its fund or activities as that Government, or, as the case may be, the Central Board may, from time to time, require.

58. Bar of jurisdiction .No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an appellate authority constituted under this Act is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.

59. Protection of action taken in good faith.No suit or other legal proceedings shall lie against the Government or any officer of Government or any member or officer of a Board in respect of anything which is in good faith done or intended to be done in pursuance of this Act or the rules made thereunder.

60. Overriding effect.The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.

61. Power of Central Government to supersede the Central Board and Joint Boards .(1) If at any time the Central Government is of opinion
(a) that the Central Board or any Joint Board has persistently made default in the performance of the functions imposed on it by or under this Act; or

(b) that circumstances exist which render it necessary in the public interest so to do, he Central Government may, by notification in the Official Gazette, supersede the Central Board or such Joint Board, as the case may be, for such period, not exceeding one year, as may be specified in the notification:

Provided that before issuing a notification under this sub-section for the reasons mentioned in clause (a), the Central Government shall give a reasonable opportunity to the Central Board or such Joint Board, as the case may be, to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the Central Board or such Joint Board, as the case may be.
(2) Upon the publication of a notification under sub-section (1) superseding the Central Board or any Joint Board,
(a) all the members shall, as from the date of supersession vacate their offices as such;

(b) all the powers, functions and duties which may, by or under this Act, be exercised, performed or discharged by the Central Board or such Joint Board shall, until the Central Board or the Joint Board, as the case may be, is reconstituted under sub-section (3) be exercised, performed or discharged by such person or persons as the Central Government may direct;

(c) all property owned or controlled by the Central Board or such Joint Board shall, until the Central Board or the Joint Board, as the case may be, is reconstituted under sub-section (3) vest in the Central Government.

(3) On the expiration of the period of supersession specified in the notification issued under sub-section (1), the Central Government may
(a) extend the period of supersession for such further term, not exceeding six months, as it may consider necessary; or

(b) reconstitute the Central Board or the Joint Board, as the case may be, by fresh nomination or appointment, as the case may be, and in such case any person who vacated his office under clause (a) of sub-section (2) shall not be deemed disqualified for nomination or appointment:

Provided that the Central Government may at any time before the expiration of the period of supersession, whether originally specified under sub-section (1) or as extended under this sub-section, take action under clause (b) of this sub-section.

62. Power of State Government to supersede State Board .(1) If at any time the State Government is of opinion
(a) that the State Board has persistently made default in the performance of the functions imposed on it by or under this Act; or

(b) that circumstances exist which render it necessary in the public interest so to do, he State Government may, by notification in the Official Gazette, supersede the State Board for such period, not exceeding one year, as may be specified in the notification:

Provided that before issuing a notification under this sub-section for the reasons mentioned in clause (a), the State Government shall give a reasonable opportunity to the State Board to show cause why it should not be superseded and shall consider the explanations and objections, if any, of the State Board.
(2) Upon the publication of a notification under sub-section (1) superseding the State Board, the provisions of sub-sections (2) and (3) of section 61 shall apply in relation to the supersession of the State Board as they apply in relation to the supersession of the Central Board or a Joint Board by the Central Government.

63. Power of Central Government to make rules .(1) The Central Government may, simultaneously with the constitution of the Central Board, make rules in respect of the matters specified in sub-section (2):
Provided that when the Central Board has been constituted, no such rule shall be made, varied, amended or repealed without consulting the Board.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the terms and conditions of service of the members (other than the Chairman and member-secretary) of the Central Board under sub-section (8) of section 5;

(b) the intervals and the time and place at which meetings of the Central Board or of any committee thereof constituted under this Act, shall be held and the procedure to be followed at such meetings, including the quorum necessary for the transaction of business under section 8, and under sub-section (2) of section 9;

(c) the fees and allowances to be paid to such members of a committee of the Central Board as are not members of the Board under sub-section (3) of section 9;

(d) the manner in which and the purposes for which persons may be associated with the Central Board under sub-section (1) of section 10 and the fees and allowances payable to such persons;

(e) the terms and conditions of service of the Chairman and the member-secretary of the Central Board under sub-section (9) of section 5 and under sub-section (1) of section 12;

(f) conditions subject to which a person may be appointed as a consulting engineer to the Central Board under sub-section (4) of section 12;

(g) the powers and duties to be exercised and performed by the Chairman and the member-secretary of the Central Board;

* * *

(j) the form of the report of the Central Board analyst under sub-section (1) of section 22;

(k) the form of the report of the Government analyst under sub-section (3) of section 22;

[(l) the form in which and the time within which the budget of the Central Board may be prepared and forwarded to the Central Government under section 38;

(ll) the form in which the annual report of the Central Board may be prepared under section 39;]

(m) the form in which the accounts of the Central Board may be maintained under section 40;

[(mm) the manner in which notice of intention to make a complaint shall be given to the Central Board or officer authorised by it under section 49;]

(n) any other matter relating to the Central Board, including the powers and functions of that Board in relation to Union territories;

(o) any other matter which has to be, or may be, prescribed.

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, [before the expiry of the session immediately following the session or the successive sessions aforesaid], both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

64. Power of State Government to make rules .(1) The State Government may, simultaneously with the constitution of the State Board, make rules to carry out the purposes of this Act, in respect of matters not falling within the purview of section 63:
Provided that when the State Board has been constituted, no such rule shall be made, varied, amended or repealed without consulting that Board.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the terms and conditions of service of the members (other than the Chairman and the member-secretary) of the State Board under sub-section (8) of section 5;

(b) the time and place of meetings of the State Board or of any committee of that Board constituted under this Act and the procedure to be followed at such meeting, including the quorum necessary for the transaction of business under section 8 and under sub-section (2) of section 9;

(c) the fees and allowances to be paid to such members of a committee of the State Board as are not members of the Board under sub-section (3) of section 9;

(d) the manner in which and the purposes for which persons may be associated with the State Board under sub-section (1) of section 10 and the fees and allowances payable to such persons;

(e) the terms and conditions of service of the Chairman and the member-secretary of the State Board under sub-section (9) of section 5 and under sub-section (1) of section 12;

(f) the conditions subject to which a person may be appointed as a consulting engineer to the State Board under sub-section (4) of section 12;

(g) the powers and duties to be exercised and discharged by the Chairman and the member-secretary of the State Board;

(h) the form of the notice referred to in section 21;

(i) the form of the report of the State Board analyst under sub-section (1) of section 22;

(j) the form of the report of the Government analyst under sub-section (3) of section 22;

(k) the form of application for the consent of the State Board under sub-section (2) of section 25, and the particulars it may contain;

(l) the manner in which inquiry under sub-section (3) of section 25 may be made in respect of an application for obtaining consent of the State Board and the matters to be taken into account in granting or refusing such consent;

(m) the form and manner in which appeals may be filed, the fees payable in respect of such appeals and the procedure to be followed by the appellate authority in disposing of the appeals under sub-section (3) of section 28;

[(n) the form in which and the time within which the budget of the State Board may be prepared and forwarded to the State Government under section 38;

(nn) the form in which the annual report of the State Board may be prepared under section 39;]

(o) the form in which the accounts of the State Board may be maintained under sub-section (1) of section 40;

(oo) the manner in which notice of intention to make a complaint shall be given to the State Board or officer authorised by it under section 49;

(p) any other matter which has to be, or may be, prescribed.


 

Section 144 of the Code of Civil Procedure

Section 144 CPC:

144. Application for restitution – (1) Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled in any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.


The scope of post 1976 amended Section 144 CPC has been considered by this Court in Neelathupara Kummi Seethi Koya Phangal (Dead) by LRs v. Montharapalla Padippua Attakoya & Ors. [1995 (Suppl. 3) SCC 760] in paragraph 3 as under:

“3. In the 1976 Amendment Act suitable amendment was made and Explanations (a) to (c) were added but they have no relevance for the purpose of the case. The question therefore, is whether the transferee executing court is a “court of first instance” within the meaning of Section 144(1) CPC. A bare reading of sub­section (1) does indicate that the application for restitution would lie when the decree executed is reversed or varied or modified. The doctrine of restitution is based upon the high cardinal principle that the acts of the court should not be allowed to work in injury or injustice to the suitors. Section 144, therefore, contemplates restitution in a case where property has been received by the decree­holder under the decree, which was subsequently either reversed or varied wholly or partly in those proceedings or other proceedings. In those set of circumstances law raised an obligation on the party that received the benefit of such reversed judgment to restitute the property to the person who had lost it. In that behalf in sub­section (2) a right of suit was taken out and an application under sub­section (1) was contemplated for execution of the decree by way of restitution. Sub­section (1) clearly indicates that it is a “court of first instance” in which the proceedings in the suit had been initiated and a decree was passed or the suit was dismissed, but subsequently on appeal decreed or vice versa. The court of first instance would, therefore, mean the court which passed the decree or order. The transferee executing court is not the court that passed the decree or order, but the decree was transmitted to facilitate execution of that decree or order since the property sought to be executed or the person who is liable for execution is situated or residing within the jurisdiction of that executing court. Therefore, the court which is competent to entertain the application for restitution is the court of first instance i.e. Administrator’s Court (Subordinate Judge) that decreed the suit, and not the court to which the decree was transmitted for execution. The court of first instance of the administrator is now designated as Court of Subordinate Judge, but application for restitution was filed in executing court, namely, the Court of District Munsif at Androth. Thus in the face of the language of Section 144, the District Munsif at Androth, by no stretch of imagination be considered to be court of first instance. Its order of restitution is without jurisdiction and, therefore, it is a nullity. The High Court is accordingly right in its conclusion that the order for restitution is clearly vitiated by error of law and lack of jurisdiction. We do not find any ground warranting interference. The appeal is dismissed, but in the circumstances without costs.”

It has been further considered by other coordinate Bench of this Court in the recent past in Murti Bhawani Mata Mandir Rep. Through Pujari Ganeshi Lal (D ) Through LR Kailash v. Rajesh & Ors. [2019 (3) SCC 707] as under:

“Section 144 applies to a situation where a decree or an order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. In that situation, the Court which has passed the decree may cause restitution to be made, on an application of any party entitled, so as to place the parties in the position which they would have occupied but for the decree or order or such part thereof as has been varied, reversed, set aside or modified. The court is empowered to pass orders which are consequential in nature to the decree or order being varied or reversed.”

It clearly transpires that Section 144 applies to a situation where a decree or order is varied or reversed in appeal, revision or any other proceeding or is set aside or modified in any suit instituted for the purpose. The principle of doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the decree to make restitution to the other party for what he has lost. This obligation arises automatically on the reversal or modification of the decree and necessarily carries with it the right to restitution of all that has been done under the decree which has been set aside or an order is varied or reversed and the Court in making restitution is bound to restore the parties, so far as they can be restored, to the same position as they were in at the time when the Court by its action had displaced them.