Amendment to S. 446, Criminal Procedure Code - A Note

(P.K. Surendranatha Panicker, Judicial First Class Magistrate Badagara)

Every provision requiring the realisation of a certain sum of money shall contain an alternative provision what the Court has to do in the event of non-realisation. If any provision does not contain the letter part, that defect has to be got cured by appropriate amendment.

Such a defective provision is now contained in the Code of Crl. Procedure, 1973 in S. 446, which deals with the procedure on forfeiture of bonds. Sub-s. (1) of S. 446 deals with the issue of a notice to the person or persons bound by the bond to pay the penalty thereof or to show cause why it should not be paid. And Sub-s, (2) of that section reads:

'If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code".

S. 421 deals with the procedure for realisation of fine (a) by issue of a warrant to levy the amount by attachment and sale of any movable property belonging to the offender, and (b) by issue of a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both of the defaulter. The proviso to subsection (1) of S. 421 says that if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant etc. Sub-s. (3) of S. 421 directs the Collector to realise the amount in accordance with the Jaw relating to recovery of arrears of land revenue and it contains the proviso "Provided that no such warrant shall be executed by the arrest and detention in prison of the offender."

The above provisions clearly show that if the defaulter in a forfeiture of bond case failed to pay the penalty or if the penalty cannot be realised as per S. 421, the defaulter can go free without the fear of any punishment for the default in view of the absence of such a provision in S. 446.

In this connection it may be noted that the corresponding section in the old Code viz. S.514 (4) of the old Code provides imprisonment in case of non-realisation of the penalty. The relevant section reads as follows:

"If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment in the Civil Jail for a term which may extend to six months".

The Law Commission while recommending to revise the section observed in its report thus:

"S. 42.5. S. 514 (4) provides that if the penalty is not paid and cannot be recovered by attachment and sale of property, the Court may order the person who is bound under the bond, to imprisonment in Civil Jail for six months We feel that imprisonment in Civil Jail in these circumstances is out of accord with modern thinking and propose to omit sub-s. (4)".

But at the same time in the case of non-payment of compensation under S. 250, provision has been made in Sub-s. (3) to order the defaulter to undergo simple imprisonment for a period not exceeding thirty days. Similarly provision for passing an order of imprisonment for non-payment of maintenance allowance is contained in S. 125 also.

The Law Commission might have thought it fit to omit the provision regarding imprisonment for non-realisation of penalty on the presumption that every accused and every surety in a criminal case might be having sufficient movable or immovable properties for the purpose of realisation of the penalties under the bond incase of its forfeiture.

The present trend of judicial pronouncements are to the effect that a liberal policy of accepting sureties without any monetary considerations has to be adopted by the Courts and also of considering the feasibility of releasing accused persons on their own recognizances. The release of an accused on self bond can be ordered only in exceptional cases and that too after making an enquiry into the conditions and background of the accused that he has his roots to the community and is not likely to abscond. In other cases the release of an accused person on self bond will be risky in the sense that his subsequent non-appearance will delay the trial and disposal of the case. Though it is often said that the hands of law are long enough to apprehend bail jumpers by issue of coercive steps, experience teaches that the executing machinary is always sluggish in this respect. In such cases the guarantee of a surety is the best safeguard to procure his attendance. As long as the Code prescribes that the bond should be for a sum of money, a violation of the bond and its forfeiture requires that the penalty stipulated in the bond or the net amount after remission by the Court has to be realised. If that amount cannot be realised the defaulter has to suffer the consequences of his default. Liability incurred by the surety under the bond on account of non-appearance of accused must be enforced against the surety, otherwise any relaxation in this behalf has the effect of inducing people to execute surety bonds without due sense of responsibility. The same is the case with the accused also.

The Parliament has in its wisdom realised this aspect and inserted Form Nos. 47 to 51 to the Code by S. 35 of The Code of Criminal Procedure (Amendment) Act, 1978. Form No. 51 contains the following words viz. "and an order has been made for his imprisonment in the Civil Jail for (specify the period)" and Forms Nos. 54 and 56 contain the following words viz. "and an order has been passed for the imprisonment of the said (name) in the Civil Jail for the period of (term of imprisonment)". This would clearly show the intention of the Parliament to send defaulters to the Civil Jail. While prescribing the above forms the Parliament has omitted to amend S. 446 to enable the Courts to pass order of imprisonment for non-realisation of penalty. Without a specific provision in the body of the Code no court will get jurisdiction to pass an order of imprisonment. Hence it is humbly suggested that it is high time for the Parliament to amend S. 446 Cr. PC. suitably.

Reference in High Court on the Retirement of the Hon’ble Chief Justice Mr. K. T. Koshi

The reference on the retirement of the Hon’ble Chief Justice Mr. K. T. Koshi was held on 30-1-1959 at 4. P. M. in the First Court Hall. The Court Hall was packed full with lawyers and officers of the High Court. All the Judges were present. Mr. K. V. Surianarayana Iyer, Ad­vocate General bade on affectionate farewell to the retiring; Chief Justice-He referred to the proud record of his work and achievements as an eminent lawyer and as a great Judge. He said: “His Lordship started practice in 1921 at Ernakulam with the blessings of his father-in-law Mr. Philip and rose to eminence. He was a reputed cross-examiner. He had appeared in many important and sensational cases, such as Kumblanji riot case, Rekthalekka sedition case, Vellarapally case etc., and discharged his duties as a lawyer with distinction. The thoroughness with which he argued the cases was remarkable” He continued: “His Lordship had a judicial mind and aptitude and was always anxious to do justice. His judgments were full and up-to-date. His judgments on rule of circumstantial evidence, scope of S. 27 of Evi­dence Act, rule of presumption as to death, S. 39 of Nayar Act etc., disclose his vast learning and juristic approach. Industrial law, law of constitution, especially those relating to fundamental rights, law of social relations, civil and criminal cases, all were dealt with by him thoroughly and exhaustively. As the head of the judicial administration his services are equally great. He substantially succeeded in his attempt to reduce the arrears of work in the High Court and in the subordinate Courts. The well equipped spacious High Court library today we see, is the result of his efforts.” He concluded by saying: ‘‘His Lordship has done his part creditably. Let Almighty may shower His choicest blessings upon him.”

Mr. Justice Sankaran in his speech said that the Hon’ble Chief Justice had successfully tackled various problems which arose during iiis tenure of office, especially regarding service integration. He tried his best for the liquidation of the arrears of work. He said that with the formation of the Kerala State followed by the addition of Malabar .there was substantial increase in the number of cases in the High Court and the number of Judges was not sufficient to cope with that increase and he wished that the authorities concerned may do the needful in the matter shortly. He also referred to the Chief Justice’s judicial achievements as a Judge and wished him long, life and prosperity.

Reference in High Court on the occasion of the first sitting of the

Hon’ble Chief Justice Mr. K. Sankaran

There was a reference on 4-3-1959 at 11-15 P. M. in the First Court to felicitate the new Chief Justice of Kerala, Mr. K. Sankaran who took his seat along with all the Judges. The Hall was full with advocates and officers of the Court. Mr. K.V. Surianarayana Ayyar, Advocate General on behalf of the Bar extended to the Hon’ble Chief Justice best wishes and hearty felicitations. He referred to the judicial talents and qualities of the Hon’ble Chief Justice and assured him the hearty co operation of the Bar in the administration of justice and wished him long life and success.

     Mr. T.N. Subramonia Iyer, President of the Advocates’ Association said that the undoubted talents of Mr. Justice Sankaran have been duly recognized by his elevation as Chief Justice, which he richly deserves. His unfailing courtesy to the Bar, his unflinching integrity and independence, exceptionally patient hearing, sweet temperament and quick perception all made him a popular and distinguished Judge. He requested his Lordship to redress the grievances of the Bar especially in the matter of appointment to the judiciary. He concluded by assuring him of the fullest cooperation and assistance of the Bar, and wishing him brilliant success and greater prosperity.

Hon’ble Mr. Justice S. Velu Pillai

We offer our sincere congratulations and cordial felicitations to Mr. Justice S. Velu Pillai on his elevation to the Bench of the Kerala High Court. His appointment has been hailed with universal satisfaction and joy all round for, all were looking forward with eagerness for this conferment of honour on him which he richly deserved earlier.

Mr. Justice Velu Pillai is a proud inheritor of a glorious tradition and an illustrious family of eminent Judges. His father Rao Bahadur G. Sankara Pillai was a Judge of the Travancore High Court from 1098 to 1102 ME Mr. Sankara Pillai’s father Dewan Bahadur A. Govinda Pillai was also a Judge of the Travancore High Court from 1071 to 1084 M.E. Mr. Govinda Pillai’s uncle Mr. Sankar-nath who was a Judge of the Court of Ranjit Singh in Punjab adorned the Sudder Court of Travancore as the Chief Justice for a few years in the 1st decade of 1000 M.E. Thus Mr. Justice Velu Pillai today is having the “unique instance not only in India but even in the United Kingdom where the same family has produced four generations of High Court Judges.”

Mr. Justice Velu Pillai was born on 14th October 1905. After a brilliant academic career he enrolled as an advocate in 1928 and set up practice at Trivandrum under the table guidance of late Mr. Kayyalam Parameswaran Pillai. In an incredibly short time by dint of his industry and merit he made his way to the front rank of the profession and occupied a prominent position acquiring a lucrative practice. In recognition of his talents and merits he was appointed as a District Judge in 1948. All through his career as a District Judge he was held in warm regard and high esteem by the Bar and the general public by reason of his deep learning, devotion to duty, exceptional punctuality and dignified and courteous behavior. Simple in habits, unostentatious and affable in manners, and gifted with a keen intellect Mr. Justice Velu Pillai has earned a reputation throughout Kerala as a Judge of high integrity and absolute impartiality. It can undoubtedly be stated of his court as was said of Lord Cockburn’s Court, “a Court where every man felt himself in the presence of a gentleman, whose genial courtesy made all things genial, whose exquisite learning captured all men’s love, whose sun bright Justice brightened every cause and sent even him who lost away content”. Our good wishes go to him for a distinguished and enlightened career in his new sphere.

Hon’ble Mrs. Justice Anna Chandy

The elevation of Mrs. Anna Chandy as a Judge of the Kerala High Court is a matter of extreme honour, supreme gratification and unbounded pride to all the people of Kerala and especially to the womankind. Kerala, the smallest of States in India, today has attained the pinnacle of glory and has attracted the whole world by her appointment, being the first and unique instance of a lady occupying the exalted office of a High Court Judge, not only in India but elsewhere also.

Mrs. Justice Anna Chandy was born in the year 1905.’ She had an illustrious educational career. She took the M. A. Degree in 1926 with distinction. She joined the Bar in 1929 and set up practice at Kottayam as a junior to late Mr. John Nidhiri and afterwards at Trivandrum. By dint of her indomitable spirit of courage and devotion to duty she was able to acquire a wide practice especially on the criminal side. She had also her valuable services in the Travancore Legislative Assembly. In 1937 she was appointed as a Munsiff and in 1948 as a District Judge. She enjoyed the unbounded confidence of the legal profession and the litigant public in the discharge of her duties. Her wide legal knowledge, forensic abilities, quick understanding and affable manners made her a popular and distinguished judicial officer. As a Judge, she was strictly adhering to the rule laid down by Judge Mathew Hale that “she is entrusted for God, the State and the country at large and therefore that has to be done uprightly, deliberately and resolutely.” We extend to Mrs. Justice Anna Chandy our heart-felt congratulations and sincere felicitations and wish her a bright future and brilliant success in the most sacred and exalted temple of Justice. May she be the beacon light of womankind?

Year in Retrospect — 1979

(K.S. Rajamony)

Constitutional & Administrative Law

R. D. Shetty v. International Airport Authority (AIR. 1979 SC. 1628) marks a significant step in the march of Indian Administrative Law and is of major jurisprudential importance as was Royappa (AIR. 1974 SC. 555) of 1974 and Maneka Gaadhi (AIR. 1978 SC. 597) of 1978. The primary focus of the case is in reaffirming the rule that all authorities coming within the definition of "State" under Art. 12 are subject to the same constitutional or public law limitations as Government. No corporation which is an instrumentality or agency of Government can exercise its power arbitrarily when dealing with the public, whether in the matter of giving jobs or entering into contracts or otherwise. Its action must be in conformity with some principle which meets the test of reason and relevance and must be nondiscriminatory. In reaffirming the above rule, the court also explores the nature and status of public corporations and their evolution as the "third arm of the Government". In Rajasthan Electricity Board v. Mohanlal (AIR. 1967 SC. 1857) two tests had been laid down for identifying an 'authority' as State. They were (1) whether it has been invested with statutory power to issue binding directions to third parties, the dibedience of which would entail penal consequence or (2) whether it has the sovereign power to make rules and regulations having, the force of law. These tests were followed by Ray C. J. in Sukhdev v. Bhagat Ram (AIR 1975 SC. 1331). Mathew J. however in the same case propounded a broader test, viz. whether the statutory corporation or other body or authority is an instrumentality or agency of Government. In the present case the Supreme Court accepts the tests laid down in Rajasthan Electricity Board case, but adopts the test of governmental instrumentality or agency as an additional test. While thus expanding the frontiers of the concept of'State', the court removes the misunderstanding resulting from decisions suchas the Praga Tool Corporation (AIR. 1969 SC. 1306) and Sabhajit Tawari (AIR. 1975 SC. 1329) to the effect that companies and socieities are not amenable to writ jurisdiction. The impression created by the above line of cases was that, anon-statutory body is not an 'authority'whatever be the extent of governmental control over it and conversely, a statutory body is an 'authority', governmental control over it being irrelevant. These clouds have now been cleared. Hereafter the test will be whether they are governmental instrumentalities or agencies, for determining which the cumulative effect of a number of criteria has to be examined; some of them are, whether any assistance financial or otherwise is given by the State and if so its nature and magnitude, whether there is any control of the management and policies of the corporation by the State and if so its nature and extent, whether the corporation enjoys State conferred or State protected monopoly status and whether the corporation is carrying out public functions closely related to Governmental functions. This decision which helps to evolve a new jurisprudence around public corporations is a welcome trend in the progress of public law, though the entire discussion is by way of obiter.

The doctrine of promissory estoppel has once again found its most eloquent exposition in M. P. Sugar Mills v. State of U. P. (AIR. 1979 SC 621) after the Indo-Afghan Agencies case (AIR. 1968 SC. 718). On the basis of a statement made by the Secretary in the Industries Department of U. P. Government, a news item appeared in thepress to the effect that Government had decided to give exemption from sales tax for a period of three years to all new industrial units in the State. The appellant, relying on the representation of government borrowed moneys from various financial institutions, purchased plant and machinery and set up a Vanaspathi factory at Cawnpore. A Bench consisting of Bhagwati and Tulza-purkar JJ. held that the Government was bound on the principle of promissory estoppel to make good the representation made by it. In both the cases mentioned above Government was held bound to honour its informal assurances if a citizen had acted to his detriment by relying on them. Nay, it is not necessary that the promisee should suffer any detriment at all; it is enough if he has altered his position in reliance on the promise. In an excellent thesis on this expanding doctrine, Bhagwati J said that it is an equitable principle evolved by the courts for doing justice and "there is no reason why it should be given only a limited application by way of defence." There is no reason in logic or principle why promissory estoppel should also not be available as a cause of action, if necessary to satisfy the equity," In this respect the court differed from the English rule that it can only be a shield and not a sword. The defence based on executive necessity has been categorically negatived. Four earlier decisions of the Supreme Court by larger benches where a contrary trend was indicated, were distinguished with the concluding observation that "there Is no authoritative decision of the Supreme Court which has departed from the Indo-Afghan Agencies Case." This case may raise the interesting question as to what would be the position if a smaller Bench of the Supreme Court differs from a larger Bench. The Supreme Court said in State ofU. P. v. Ramachandra Trivedi (AIR. 1976 SC. 2547) [1]: "Even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court it cannot disregard or skirt the views expressed by the larger Benches. The proper course for a High Court in such a case is to try to find out and follow the opinion expressed by larger Benches of Supreme Court in preference to those expressed by smaller Benches of the court which practice hardened as it has into a rule of law is followed by the Supreme Court itself."

State of Kerala v. T P. Roshana (AIR. 1979 SC. 765)is an interesting illustration of judicial activism on the part of the Supreme Court. After striking down the scheme of admission to the Medical colleges, the court did not sit back leaving it to the helpless government to solve the consequential crisis. The result of the declaration of invalidity of the concerned G. O. would have been to throw out a number of students already undergoing their course. The court came to their rescue and persuaded the Calicut and Kerala Universities, the Indian Medical Council and Government of Kerala to increase the number of seats so that 30 more students from the colleges affiliated to the Calicut University could be admitted to the medical colleges in the State. Apart from demonstrating the dynamics of writ jurisdiction and the ultimate purpose of the judicial process, Krishna Iyer J. explained how the vagarious element in the valuation of answer papers though factually true, was too marginal to be violative of Art 14. Current conditions in Kerala were considered by the court as justifying the classification of the student community on zonal basis for the purpose of admission to medicial colleges. The court did not find any substantial differentiation between the Kerala and Calicut Universities in regard to the awarding of marks or syllabi or examination methodology for the pre-Degree or degree course. As per the impugned Government order the seats available for MBBS were distributed among the students of the two universities in the ratio of the candidases registered for the pre-Dgree and B. Sc. course in the two universities, taking the average for the previous three years.The Supreme Court agreed with the Kerala High Court that this was discriminatory. There was no nexus between the registered students'strength and the seats to be allotted.

Manohar v. Marotrao (AIR. 1979 SC. 1084) brings into focus the clash between what may be termed as the modern purposive approach and the traditional literal approach in the matter of interpretation of statutes. By a majority, it was held that where an LIC employee contested a municipal election successfully without obtaining the permission of the LIC Chairman the election was not rendered void or illegal. Krishna Iyer J said, "The strictly literal may be not often be logical if the context indicates a contrary legislative intent. A policy oriented understanding of a legal provision which does not do violence to the text or the context gains preference as against a narrow reading of the words used."

The golden rule in the construction of statutes appears to be, whenever there is a choice, choose the meaning which accords with reason and justice. Thus a division bench of the Kerala High Court (Eradi and Narendran JJ.) in Eapen v. Union of India (1979 KLT. 861) quashed an order passed by the P & T Department superannuating a telephone-technician five years before the due date. An error which had crept into the school record happened to be reproduced in the employee's service record also. His request for correction of the date of birth in the service record was declined on the ground that Fundamental Rule 56, Note 5, permitted correction only "if it is established that a bonafide clerical mistake has been committed in recording the date of birth in the service book". Faced with the glaring injustice, Eradi J. observed that in interpreting the rule "the attitude should not be one of wooden rigidity but should be one susceptible of sufficient flexibility so as to meet out justice in truly deserving cases".

One of the most significant contributions of the Supreme Court during 1979 is its restoring basic human rights to convicts and undertrial prisoners. Speedy trial has been held to be an essential and integral part of the fundamental right to life and liberty enshrined in Article 21. A large number of undertrial prisoners languishing in the jails of Bihar for periods longer than what they would have been sentenced to suffer if found guilty, were ordered to be released. In Hussainra Khatoon (AIR. 1979 SC. 1360) Bhagawati J. said that courts must abandon the antiquated concept under which pretrial release is ordered only against bail with sureties. The accused must as far as possible be released on his personal bond the amount of which should not be excessive. Pathak J. said that there is an urgent need for a clear provision in the Crl.PC. enabling the release in appropriate cases of an undertrial prisoner on his own bond without sureties and without any monetary obligation. Alerting the Bihar judiciary of its responsibility to protect human liberty, Bhagawati J. said in Hussainara Khatoon (AIR. 1979 SC 1369) "the judiciary in the State of Bihar also cannot escape its share of blame because it could not have been unaware of the fact that thousands of undertrial prisoners are languishing in jail awaiting trial which never seems to commence". It was also held that free legal service is an essential ingredient of the guarantee of Art. 21. Two more cases in these series laying down the same principles are reported in AIR. 1979 SC 1377 & 1819. It is quite possible that what happens in Bihar happens in the other States as well and calls for immediate enquiry by the Government, judiciary and leaders of public opinion.

By far the most outstanding contribution of the Supreme Court to constitutional law during the year is In Re the Special Courts Bill, 1978 (AIR. 1979 SC 478).The question referred by the President to SC was "whether the Bill or any of the provisions thereof if enacted would be constitutionally invalid?". It was held that offences alleged to have been committed during the period of Emergency constitute a class by themselves and so do the persons who are alleged to have utilized the high public or political offices held by them as a cover or opportunity for committing those offences. The object of the bill is to ensure a speedy trial. The classification is founded on an intelligible differentia and has a rational relation with the object sought to be achieved. However the ante-dating of the Emergency from June 25 to February 27, 1975 was declared unscientific and irrational. The classification was held invalid in so far as it covered offences committed before 25th June 1975, Clause 4(2) providing that Government's declaration regarding the offences to be dealt with under the Act shall not be called in question in any court, was held to be invalid. "The declaration will be open to judicial review. In a Government of laws there is nothing like unfettered discretion immune from judicial reviewability".

In AIR. 1979 SC 429, it has been held that if the service of a temporary Government servant is terminated arbitrarily and without any reason whatsoever and employees junior to him are retained in service, the termination is illegal and violates Arts. 14 & 16. J978 KLT. 605 (FB) has to be reconsidered in the light of this decision. 1977 KLT. 362 now stands restored.

Art. 311 (2) is not attracted where the order of termination is not by way of punishment, but is a termination simpliciter of the service of a temporary Government servant. A complaint against the person can be taken into account for the purpose of considering the suitability of the employee. It was merely a motive and not the foundation of the order. AIR 1979 SC. 684.

In Karunanidihi v. Union of India (AIR 1979 SC 898) the SC. laid down when two statutes can be said to be repugnant to one another. The Tamil Nadu Public Men (Criminal Misconduct) Act, 1974 is not repugnant to the IPC. or the Prevention of Corruption Act. It was also held that a Chief Minister is a Public Servant Under S. 21 of IPC.

The provisions in the Indian Foreign Service (Conduct and Discipline) Rules 1961 requiring a female employee to obtain permission of Government in writing before her marriage and denying right to be appointed on the ground that candidate is a married woman are discriminatory against Women and offend Articles 14,15 and 16. 1979 SC. 1868; Rule 12 (iii) of the Kerala Education Rules banning admission of girls to boys schools violates Art. 30.(1). The rule therefore was held inapplicable to minority schools. 1979 SC. 83; The rule of construction is firmly established that retrospective operation is not to be given to a statute so as to impair an existing right or obligation. If the enactment is expressed in a language which is fairly capable of either interpretation, it ought to be construed as prospective only. 1979 SC 592; A trial under a procedure different from what obtained at the time of the commission of the offence or by a different court cannot ipso facto be held to offend Art 20 (1). No accused has a fundamental right to trial by a parti­cular court or procedure. S. 5 (3) of the Prevention of Corruption Act, 1947 provides a rule of presumption of guilt. The accused was charged with the commission of an offence under the Act when S. 5 (3)-was in existence. This section was repealed by an amending Act of 1964, but re-introduced by another amending Act of. 1967. The result was that S. 5 (3) revived and the presumption could be applied in the trial of the accused. There is no violation of Art. 20 (1). AIR 1979 SC. 692; The power of review inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors. High Court has power to review its orders under Art. 226. But the power cannot be exercised on the ground that the decision was erroneous on merits which is the province of a court of appeal 1979 SC 1047; In District Registrar, Palghat v. Koyakutty, (AIR. 1979 SC 1060) a person became Lower Division Clerk as a result of exemption from qualification granted by the Madras Government. After the States Reorganisation, the Kerala Government issued an order that all such persons should pass a test for further promotion as Upper Division Clerk. The SC held that the Government order violated Rule 28 (b) (ii) of the KSSR. The court further said that the Kerala High Court was justified in giving a positive direction to Government to promote the employee. AIR. 1979 SC. 1060. Adverse remarks in confidential report cannot be acted upon to deny promotion unless they are communicated to the person concerned so that he has an opportunity to improve his work and conduct or to explain the circumstances leading to the remark Such an opportunity is not an empty formality. The selection committee should give reasons for superseding any member of the State Civil Service for promotion to IAS. "Rubber-stamp" reasons are not enough. "Officer not found suitable" is the conclusion and not a reason in support of the decision to supersede him" 1979 SC 1622. The words "regular" or "regularisation" do not connote permanence. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to the methodology followed in making the appointments. 1979 SC 1676; The absence of a right to appeal in the statute does not spell arbitrariness. Giving reasons for conclusions is ordinarily an important component of natural justice in quasi-judicial tribunals. 1979 SC 1803; A train lighting inspector was appointed by the Chief Electrical Engineer. Subsequently the power of appointment to that category was delegated to the Asst. Electrical Engineer who removed the employee from service. The removal was held illegal as offending Art. 311(1). 1979 SC 1912; A former member of the Public Service Commission can be validly appointed as Governor of a State, because the office of Governor is not an employment under government and it does not therefore come within the proibition of Article 319 (d). AIR. 1979 SC 1109.

In 1979 KLT 845 Kochu Thommen J. points out that the distinction between jurisdictional errors (in the Anisminic sense) and errors within juris­diction which is the criterion for distinguishing a void order from a voidable order is so fine that it has reached almost the vanishing point. An order may be void ab-initio. But it continues to operate until its invalidity is declared by court. Until then a void order is only voidable and the person against whom it made is bound by the consequence flowing from it. In this view the learned Judge declined to quash an order imposing penalty for non-payment of sales tax on the ground that the levy of sales tax itself was null and void. It is true that the distinction between void and voidable orders is considerably blurred by recent English decisions. However, the question whether an illegal administrative order is void or voidable may not be capable of an answer in the abstract. The question may have to be solved in concrete cases taking into account the type of interest involved and the person against whom the order is sought to be enforced. In 1979 KLT. 220 (FB.) it is held that a private college, though affiliated to the University, is not a statutory body nor has the teacher statutory status. Therefore a writ will not lie. Akhileswara Iyer's case (1959 KLT. 816) was over-ruled. It was also held that the principle that 'no man shall be judge in his own cause' cannot prevail against an express statutory provision or a consensual term. In 1979 KLT. 286 the meaning and content of 'seniority-cum-fitness' was discussed by Gopalan Nambiyar CJ. An element of assessment of suitability is involved in deciding seniority-cum-fitness. The employee's service record is certainly an element to be taken into account.

In 1979 KLT. 350, a Bench of five judges declared the Guruvayur Devaswom Act, 1971 as unconstitutional and void. In a scholarly judgment, Eradi J. discussed the scope and ambit of the fundamental rights enshrined in Arts. 25 & 26 and the extent to which State Regulation can abrridge them. Any law which takes away the right of administration altogether from the religious denomination and vests it in any other secular authority would violate Art. 26(d). It is not open to restrict the performance of religious rites and ceremonies under the guise of regulating the administration of the trust estate. Unguided power of nominating the managing committee, arbitrary power of alienation of Devaswom properties, the confirment of extraordinary powers on the Administrator and power to appoint a non-Hindu, vesting the administration and control over the funds in State Government, denial of right to approach the civil court were all held violative of Arts. 25 & 26.

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Foot Note:-

1.What happens if the larger bench is divided, say 6: 5 and the smaller Bench of 7 judges is unanimous?

x          x          x

Civil Law

The controversial Lizzy v. Kuttan (1976 KLT 571 FB) found its Waterloo at last in the five judges' decision in Kesava Bhatt v. Subraya Bhat (1979 KLT 766). It was held by the larger Bench that (a) in a suit for injunction, no question of the rights of a tenant arises and reference to Land Tribunal is not necessary; (b) the mere incorporation of an unnecessary or irrelevant plea of tenancy in the written statement cannot attract the bar of S. 125 (3). The question of tenancy must arise for consideratian; (c) if a question of tenancy arose, the civil court decree without reference to the tribunal would be without jurisdiction and hence null and void; (d) a matter which had become res judicata cannot be said to "arise". Lizzy v. Kuttan however, still haunts judicial thinking on the KLR Act. See for eg. Chinna Amma v. Sarojini Amma [1] where Poti J. expressed the opinion that Lizzy v. Kuttan did not say anything different from Kesava Bhat.

Without deviating from the ratio of the Division Bench decision in 1976 KLT 870, Viswanatha Iyer J held that a revision under S. 103 of the KLR. Act will lie to the High Court against an order of the Appellate Authority upholding the plea of tenancy and sending back the case for passing a formal order under S. 72F. Such an order of the Appellate Authority is a final order amenable to revision. This decision has obviated the needless and empty formality of going through the Land Tribunal and the Appellate Authority in a farcical second round to enable the High Court to adjudicate the question of tenancy in revision. 1979 KLT. 910; When the Nair Act was repealed on 1—12—1976 by Joint Hindu Family System (Abolition) Act, 1975, pending proceedings continue to be governed by the Nair Act,—1979 KLT. 810 [2]. There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. If the necessary material for the plea is already there, the amendment may be more readily granted, but there is no prohibition against permitting amendment at the appellate stage merely because the necessary material is not already before the court. AIR. 1979 SC. 551; The statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt. Where the pre-emptor-decree holder sold the property, the vendee is entitled to execute the decree under S. 146 even without an assignment of the decree. AIR. 1979 SC 1066;

Continued

In a suit to enforce a guarantee bond which is a continuing guarantee, so long as the account is a live account in the sense that it is not settled and there is no refusal on the part of the guarantor to carry out the obligation, limitation does not commence running. Limitation would only run from the date of breach, AIR. 1979 SC. 102; Application for reference was not made to the Collector within the time prescribed in the Land Acquisition Act. The Collector however made the reference without expressing any opinion as to whether the application was time barred or not. The Court has jurisdiction to decide whether the reference was made beyond the prescribed period and if it was so, decline to answer reference, AIR. 1979 SC. 404; Where in a contract between the State and a contractor, the stipulated period was twelve months, but power was conferred on the Executive Engineer to grant extension of time and for levying penalty for delay, time cannot be considered to be of the essence of the contract and the rescision of such a contract by the State without fixing a further period making time the essence is illegal and the security deposit of the contractor cannot be forfeited, AIR. 1979 SC. 720. Mathew v. TLB (1979 KLT 601 SC) [3] settles some controversies arising from the ceiling provisions of the KLR Act; (a) Affirming 1976 KLT 632, it was held that lands converted into plantations between 1-4-1964 and 1-1-1970 do not qualify for exemption under S. 81(l)(e); (b) It is not permissible for the Taluk Land Board to disregard the evidentiary value of the certificate of purchase issued by the Land Tribunal under S. 72-K(1) merely on the ground that it has not been issued on a proper appreciation of evidence or that it suffers from procedural errors. But the Board can examine whether the certificate is inaccurate on its face or has been obtained by fraud or collusion, 1976 KLT 716 overruled; (c) Affirming 1977 KLT 64, SC. held that S. 84 (3) is retrospective. It invalidates voluntary transfers made after 15-9-1963 with reference to the ceiling area fixed by the Amending Act 35 of 69. 1977 KLT 64 affirmed; (d) Child in the womb on 1-1-1970 is not a member of family for the purpose of S. 82(1)(c); (e) Unmarried daughters attaining majority before 1-1-1970 are not entitled to the benefit of 6 acres under S. 82(1) in the absence of any share under personal law; (f) TLB can revise its order on receipt of additional reports from Collector; (g) Transfers such as gifts made after 1-1-70 have to be ignored even if they are of the excepted variety mentioned in S. 84.

A seven judges Bench of the SC. has reaffirmed that notice under S. 106 of the T. P. Act is not necessary under any State Rent Control Act to get an order of eviction. AIR 1979 SC. 1745.

As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant, AIR 1979 SC. 1848.

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Foot Note:-

1.A.S. No. 18 of 1976 decided on 21—12—79 by Poti. Janaki Amma JJ.

2.But does Act 30 of 1976 repeal the Nair Act in its entirety; See for a critical com­ment, 1979 KLT. (Journal) 41.

3.This case is reported in AIR 1979 SC 1573 as C. Veetil Ammad V. Taluk Land Board.