University Ombudsman Still an Unborn Baby

(By Ajay R. Kamath, Advocate, Trivandrum)

In Kerala, we are very much familiar about the concept of “Ombudsman”. We have seen ombudsman for Local Self-government Institutions, Banking, Insurance, Electricity and for Co-operative Societies. But how many of us are aware that it is mandatory for each and every university to have an Ombudsman.

The University Grants Commission in 2013 came out with a regulation called UGC (Grievance Redressal) Regulations, 2012 with an aim to redress the grievances and to uplift the overall standard of higher education in the country. The regulation proposes to establish a two tier mechanism which consists of a Grievance Redressal Committee at the college/regional level and Ombudsman as its Appeal Authority.

Who will be Ombudsman?

The Regulation prescribes that, the Ombudsman must be a person who has been a judge not below the rank of a District Judge or a retired professor who has at least ten years’ experience as a professor.

Mode of appointment

The Ombudsman in a State University must be appointed from a panel of three names recommended by the search committee consisting of nominee of the Governor of the State as Chairman; two Vice-Chancellors from public Universities of the State, nominated by the State Government as members; one Vice-Chancellor from private university of the State, nominated by the State Government as member and Higher Education Secretary of the State as the member and Convener.

Purpose of the Ombudsman

Ombudsman serves as a platform for aggrieved students to register their complaints or grievances, regarding the following;

* Admissions taking place contrary to the merit determined in accordance with the institute’s declared policy.

* Making admission contrary to merit determined in accordance with the declared admission policy of the institute.

* Irregularity in the admission process adopted by the institute.

* Refusing admission in accordance with the declared admission policy of the institute.

* Non publication of prospectus, as specified.

* Publishing any information in the prospectus, which is false or misleading, and not based on facts.

* Withhold or refuse to return any document in the form of certificates of degree, diploma or any other award or other document deposited with it by a person for the purpose of seeking admission in such institution, with a view to induce or compel such person to pay any fee or fees in respect of any course or program of study which such person does not intend to pursue.

* Demand of money in excess of that specified in the declared admission policy or approved by the competent authority to be charged by such institution.

* Breach of the policy for reservation in admission as may be applicable.

* Complaints, of alleged discrimination of students, from the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Women, Minority or Disabled categories.

* Non-payment or delay in payment of scholarships to any student that such institution is committed, under the conditions imposed by University Grants Commission, or by any other authority.

* Delay in conduct of examinations or declaration of results beyond that specified in the academic calendar.

* On provision of student amenities as may have been promised or required to be provided by the institution.

* Denial of quality education as promised at the time of admission or required to be provided.

* Non transparent or unfair evaluation practices.

* Harassment and victimisation of students, including sexual harassment.

How it will function

* Each University/Institution shall establish a registry, headed by an employee of the institute of appropriate rank as the Ombudsman may decide where any aggrieved student or person may make an application seeking redressal of grievance.

* On receipt of an application by the registry, the employee-in­charge shall inform the Ombudsman. The registry shall immediately provide a copy to the institution for furnishing its reply within seven days.

* The Ombudsman shall fix a date tor hearing the complaint which shall be communicated to the institute and the aggrieved person either in writing or electronically, as may be feasible.

* An aggrieved person - may appear either in person or represented by such person as may be authorised to present his case.

* The Ombudsman shall be guided by the principles of natural justice while hearing the grievance.

* The Ombudsman shall ensure disposal of every application as speedily as possible and not later than a month of receipt of the grievance.

* The institution shall co-operate with the Ombudsman in redressal of grievances and failure to do so may be reported by the Ombudsman to the U.G.C.

* On the conclusion of proceedings, the Ombudsman shall pass such order, with reasons for such order, as may be deemed fit to redress the grievance and provide such relief as may be desirable to the affected party at issue.

* The institution shall comply with the order of the Ombudsman, failing in which it shall be reported to the U.G.C.

Consequences of non-compliance

If any University wilfully contravenes or repeatedly fails to comply with orders of the Ombudsman, then it shall be reported to the U.G.C. and U.G.C. may proceed to take following actions, namely:-

a) withdrawal of declaration of fitness to receive grants under Section 128 of the Act;

b) withholding any grant allocated to the Institution;

c) declaring the institution ineligible for consideration for any assistance under any of the general or special assistance programs of the Commission;

d) informing the general public, including potential candidates for admission, through a notice displayed prominently in the newspapers or other suitable media and posted on the website of the Commission, declaring that the institution does not possess the minimum standards for redressal of grievances;

e) recommend to the affiliating university for withdrawal of affiliation, in case of a college;

f) recommend to the Central Government for withdrawal of declaration as Institution deemed to be university, in case of an institution deemed to be university;

g) recommend to the appropriate State Government for withdrawal of status as university in case of a university established or incorporated under a State Act;

h) taking such other action within its powers as the Commission may deem fit and impose such other penalties as may be provided in the Act for such duration of time as the institution complies with the provisions of the U.G.C. Regulations

.

Status in our Universities

It has been 4 years and 7 months since the U.G.C.(Grievance Redressal) Regulations came into force but none of the Universities in the State has appointed an Ombudsman, even after a directive from the U.G.C. The Ombudsman in our Universities will indeed help to curb the current unfair practises which are currently occurring in our State. It is pertinent to note that a proposal for appointing an Ombudsman in University of Kerala and Cochin University of Science and Technology are within the consideration of the State Government and a favourable action is expected soon.

Service of Summons on Defendants

(By V.MB. Nambisan, Advocate, Taliparamba)

1.  Recently, in Arundas v. Priji,reported in 2017 (4) KLT 1060, Our Hon’ble High Court (Division Bench) held that “service of notice on a defendant can be done by service on an adult member of his family who is residing with him only if it is specifically so ordered by the Court (para.20) under Order V Rule 15 of the Civil Procedure Code (for short CPC). The observations that “the unexpendable imperative for courts to ensure valid and proper service of summons and notices to defendants in a suit and other proceedings can never be overstated” and that “proper service of summons is a fundamental rule of procedure” are all well said. As such, the captioned subject invites a detailed discussion.

2.  Section 27 of C.P.C. says that “summons shall be served in the prescribed manner”. The manner is prescribed in Order V of C.P.C. and in Civil Rules of Practice (for short CRP) Rules 75 to 80.

Order V Rules 11 and 12 of CPC read together spell out that summons shall be served on each defendant in person.

Order Rule 12 (second part) read with Rules 13 and 14 deal with service of summons on Agents of defendants.

Order V Rule 15 deals with service of summons on an adult member of defendant’s family. Rules 16 to 19 deal with the procedure to be followed in the matter of service of summons on Agents, adult members etc. C.R.P. Rules 75 to 80 set out the procedure to be followed by the Serving Officer to effectuate service of process.

4. There is an all-important directive to the court in Order V Rule 19 that when summons is effectuated “the Court shall declare that summons has been duly served. This is indispensable because Order IX Rule 6 says that “when it is proved that summons was duly served on defendant, if he is absent on the date of hearing, he shall be set ex parte and if not duly served a second summons shall be issued.

The above directive is common to service of summons under Order V Rules 11 to 18.

5. A close study of the above provisions will convince us that Order V Rules11 to 19 and C.R.P. Rules 75 to 80 have to be considered together. One rule cannot be chiselled out and commented upon separately.

6. Now let us find out whether service of summons on an adult member of the family of defendant who resides with him can be served only on a specific order of the Court to that effect.

i) Order V Rule 16 directs that the Serving Officer shall get acknowledgment for service of the summons from the defendant or his agent or other person. The “other person” referred to herein can mean none other than the “adult member of defendant’s family” referred to in Rule15. Suppose the adult member of defendant’s family concedes to accept summons giving acknowledgment for it, can not the Serving Officer serve it on him? Or, should he submit a return to the court stating the above facts and wait for a specific order to serve it on an adult member which will be done by the court only at the next hearing date ?

ii) In Rule 17 we again find “such other person as aforesaid”. Who else can it be except the “adult family member”? It continues to say that the Serving Officer shall affix a copy of the summons on the outer door of the house etc. Again, should the Serving Officer go back and get an order from Court for affixture ? Order V Rule 19 says that the court may examine the Serving Officer on oath to ascertain the truthfulness of serving the Summons. What more is required ?

iii) Rule 18 calls upon the Serving Officer to submit a detailed report on serving the process under Rule 16 which should include the serving time manner, ID witness etc. C.R.P. Rule 77 to 80 also call upon the Serving Officer if he has affixed the summons on the outer door etc., to submit his report verified by affidavit giving details of serving summons. If summons could be served on an adult member only after the court gives a finding for it, why should the Serving Officer be called upon to submit such a report to the court ?

7. The process server is a responsible Officer deputed by the Court. He is not a peon nor a messenger. He is a Public Officer. See C.P.C., Section 2(17)(d). He is authorized by the court to execute judicial process. When he serves the summons on an adult member of defendant’s, family taking acknowledgement for it as prescribed in Order V Rule 16, he performs his duty. It has to be presumed that he has regularly performed it, vide Indian Evidence Act, S.114(e).

Is not the above analytical discussion decisive to conclude that no specific finding of the Court is required for the Serving Officer to serve the summons on an adult member of the family of the defendant, who is residing with him.

What Information of A Co-operative Society can be Accessed by A Public Authority under the Right to Information Act? The Guiding Principles

(By R. Muralidharan, Puducherry Civil Service Officer (Retd.), Director, Catalyst [The Training People])

The question whether co-operative societies answer the definition of ‘public authority’ under Section 2(h) of the Right to Information Act, 2005 was engaging the attention of various State and Central Information Commissions and the High Courts for quite some time and divergent decisions were delivered by the Commissions and the High Courts.  Ultimately, the Supreme Court, from a Full Bench decision emanated from the Kerala High Court, settled the jurisdictional limit of the Right to Information Act vis-a-vis Co-operative Societies in Thalappalam Service Co-operative Bank Ltd., & Ors. v. State of Kerala & Ors.(2013 (4) KLT 232 (SC): 2013 (12) SCALE 527: 2013 (6) CTC 98: (2013) 7 MLJ 407: 2014-1-LW. 273 : RTIR IV (2013) 75 : (2013) 16 SCC 92 with the following propositions:

(i)  To answer the definition of ‘public authority’ under Section 2(h) of the R.T.I. Act it is to be established whether a co-operative society is a body owned, controlled or substantially financed, directly or indirectly by funds provided by the appropriate Government;

(ii)  A Co-operative Society is not a body owned by the appropriate Government;

(iii)  The expression ‘controlled’ must be a control of a substantial nature and not merely supervisory or regulatory.  Powers exercised by the Registrar and others under the Co-operative Societies Act are only regulatory or supervisory in nature, which will not amount to dominating or interfering with the management or affairs of the society so as to be controlled;  

(iv)   ‘Substantially financed’ indicate that the degree of financing must be actual, existing, positive and real, it should be shown that but for the funding the society would struggle to exist;

(v)   Providing subsidies, exemption, privileges etc., will not tantamount to substantial financing.  Similarly schemes meant for betterment of co-operatives also will not be construed as substantial financing;

(vi)  Only if the societies are substantially financed, it will fall within the sweep of ‘public authorities’ and answerable to the R.T.I. Act;

(vii)   A body (in this case a society) is free to establish that it is not owned, controlled or substantially financed directly or indirectly by the appropriate Government;

(viii)  If the information is not statutorily accessible by a public authority those information will not be under the ‘control of the public authority’;

(ix)  A citizen can have access to information of a co-operative society through the Registrar, who is a pubic authority;

(x)  The Registrar cannot access all the information from a co-operative society, but only those information which it is legally obliged to pass on to the Registrar and also only those information to which the Registrar can have access in accordance with law.

This article focuses on to what extent the applicant can have information from a co-operative society through a public authority who can access it under any other law as had been defined under Section 2 (f) of the Act.  The claim of the applicant seems that though the co-operative society is not a public authority under the Act, he can entrée such information he intends to have through the public authority, namely, the Registrar of Co-operative Societies, who is a public authority under Section 2 (h) of the Act.  Is there any limit for such access to information or sky is the limit?

Supreme Court sets the tone

The answer to the above question may be found from the judgment of the Apex Court in Thalappalam Service Co-operative Bank Ltd. (supra). The Court observed that the Registrar functioning under the Co-operative Societies Act is a public authority.  As a public authority the Registrar has been conferred with lot of statutory powers.  He is duty bound to comply with the obligations under the R.T.I. Act.  Information which he is expected to provide is the information enumerated in Section 2(f), subject to the limitations provided under Section 8.  The Registrar can also, to the extent law permits, gather information from a society, on which he has supervisory or administrative control.  He is not obliged to disclose those information if those information fall under Section 8.  Only those information which a Registrar can have access under the Co-operative Societies Act from a society could be said to be the information which is ‘held’ or ‘under the control of the public authority’. 

The Registrar is not bound to furnish the information to the applicant if the information sought for falls under the exempted category, even if the Registrar has got that information.  He is bound to provide the information only on his satisfaction that large public interest warrants such a disclosure that too for reasons to be recorded in writing.

In Central Board of Secondary Education & Anr. v. Aditya Bandopadhyay & Ors. (2011 (3) KLT SN 117 (C.No.120): (2011 (2) ID 101: 2011-4-LW-289: 2011 (7) MLJ 1237: (2011) 8 SCC 497: RTIR III (2011) 242), the Supreme Court  clarified that if a public authority has any information in the form of data or analyzed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in Section 8 of the Act. But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non-available information and then furnish it to an applicant.  Of course, this decision is not based on interpretation of the Co-operative Societies Act.

Decisions of the High Courts

Echoing on the law enunciated by the Supreme Court, various High Courts have rendered the following decisions on this subject.

(i) The Division Bench of Delhi High Court in Eliamma Sebastian v. Ministry of Home Affairs & Ors. (2016 (4) KLT 2211 (Del.) = RTIR II (2016) 101) held that the information which is in the possession of the co-operative society is accessible to its members and those interested, in Section 139 of the Delhi Co-operative Societies Act. The absolute nature of this obligation to furnish information to those entitled to apply and receive is reinforced by the consequences which are spelt out in Section 139(2). However, information which the society may not possess, but pertaining to it, in the form of records with the Registrar of Co-operative Societies, have to be provided by the latter, under the R.T.I. Act, as there is no doubt that such official, who discharges statutory functions, is a public authority. However, the grounds of exemption spelt out under the R.T.I. Act too would be attracted, wherever applicable. The applications of the petitioner shall be considered by the Registrar, to the extent the information is available with his office. In regard to the information not available, the Registrar shall indicate clearly what material does not exist, in an order. It is then open to the petitioner to seek such information under Section 139 of the Delhi Co-operative Societies Act.

(ii) In case before Bombay High Court in Sainik Co-operative House Building Society Ltd. v. Bismark Facho & Ors.(AIR 2015 Bom.153), the information in the form of question Nos. 4 and 5 (minutes of the society) was not in possession of the Registrar of Co-operative Societies but he had called for the said information from the petitioner society and the petitioner society had refused to furnish the said information. There was no finding by any authority that the information sought for by the first respondent by way of question Nos. 4 and 5 could be accessed by the Registrar under the Maharashtra Co-operative Societies Act or any other law for the time being in force at the relevant time.

The impugned order to the effect that the petitioner society is a public authority and has to give the information requested by the citizens under the Act, unless it is exempted under any of the provisions of the same Act and therefore the second respondent shall give information withheld by the petitioner was quashed and set aside.

(iii) In Puthiyatheru Urban Co-operative Society Ltd., v. Joint Registrar of Co-operative Societies (General), (2017 (2) KLT 656 : AIR 2017 Ker 166 : RTIR III (2017) 167), the Kerala High Court observed that in the light of the decision of the Apex Court in Thalappalam Service Co-operative Bank Limited v. State of Kerala [cited above] there cannot be any doubt that the petitioner would not fall within the definition of ‘public authority’ under the RTI Act. Co-operative societies registered under the Societies Act are, therefore, only private bodies as far as the R.T.I. Act is concerned. But, the Joint Registrar and Assistant Registrar would certainly fall within the definition of ‘public authority’ under the R.T.I. Act and they are, therefore, obliged to furnish information under the R.T.I. Act. The information which the Joint Registrar and Assistant Registrar are obliged to furnish under the RTI Act are only information which would fall within the definition of ‘information’ as contained in Section 2(f) of the R.T.I. Act.

It can be inferred that the scheme of the R.T.I. Act is that whenever applications are preferred for information before the public authorities in relation to private bodies, it is obligatory for the public authorities concerned to consider whether the information sought are information which they are empowered to access under any law. If the information sought is not information which the public authorities are empowered to access under any law in respect of a private body, the public authorities have no obligation under the R.T.I. Act to furnish such information. In this context, it is to be clarified that if information sought from a public authority in relation to a private body are information which the public authority is empowered to access under any law, such information can certainly be gathered and furnished to the applicant, if the same is not available on the record of the public authority.

(iv) The question that calls for adjudication before the Kerala High Court in Thrissur District Co-operative Bank, Thrissur v. State Information Commission, Thiruvananthapuram & Anr. (2017 (1) KLT 2101 = AIR 2017 Ker.120) is do the co-operative societies fall within the jurisdictional limits of the Right to Information Act directly or indirectly, that is, at least, through the process of an official gathering information and then providing it to the applicants?

The Co-operative Societies, not supported by the Government, assert that they are not ‘public authorities’ and, so, they are beyond the jurisdictional limits of the Right to Information Act; certain third parties, unconnected to the societies, seek information insisting that the societies are bound by the Act; the Information Commission endorses the third-party view. The issue, broadly having been decided by the Supreme Court in Thalappalam, the question is whether the co-operative societies are liable to provide information under either the Right to Information Act or the Kerala Co-operative Societies Act.

The information he is expected to provide is the information enumerated in Section 2(f) of the R.T.I. Act; it is, however, subject to the limitations imposed by Section 8 of the Act. The Registrar can also, to the extent law permits, gather information from a society, on which he has supervisory or administrative control under the Co-operative Societies Act. Only the information a Registrar of Co-operative Societies can legitimately have access to from a society under the Co-operative Societies Act could be said to be the information ‘held’ by or is under the ‘control’ of public authorities. Apart from the Registrar of Co-operative Societies, there may be other public authorities who can access information from a co-operative bank under law. In a given situation, the society will have to part with that information. But the demand should have statutory backing.

If there is no bona fide public interest in a person’s seeking information, disclosing that information will unwarrantedly invade the privacy of the person whose information is sought. In that eventuality, the public authority, here the Registrar, can refuse the person’s request, even withhold the information. Further, if the authority finds that information sought can be provided in the larger public interest, then the officer should record his reasons in writing before providing the information, because the person from whom information is sought also has a right to privacy guaranteed under Article 21 of the Constitution.

                                                                                 Note: Underlined to add emphasis

In fine

From an analysis of the aforesaid judgments and the principles evolved therein it is clear as crystal that Co-operative Societies, if not substantially financed, do not answer the definition of public authority under the R.T.I. Act.  When an applicant seeks information about such societies and makes an application to the public authority, the Registrar cannot access all the information from a co-operative society, but only those information which the society is legally obliged to pass on to the Registrar and also only those information to which the Registrar can have access in accordance with law. If information sought for is accessible under any law, such information can certainly be gathered and furnished to the applicant, if the same is not available on the record of the public authority. It is pertinent to note that if the society is substantially financed by the appropriate Government it is a public authority and is obliged to provide the information under the provisions of the Act.

Using Sword, Sans Notification, No Offence?

(By Abdul Khader Kunju S., Asst. Public Prosecutor, Cherthala)

The background of the issue

The conflicting decisions of two co-ordinate Benches of the Hon’ble High Court of Kerala creating doubts regarding the proper application of the Arms Act, 1959 (the Act) in Kerala. First one is that held in Azzi v. State of Kerala(2013 (4) KLT 439) and the other one is in Jinu v. State of Kerala(2017 (4) KLT 895). Both by Single Benches. In the former one the Court held as follows:-

“I am of the opinion that though the accused has not inflicted injuries with arm on any person, the act of threatening or intimidating or alarming another person by showing any arm or brandishing a knife or sword or any arm of such description and design with an intend to cause fear of death in the mind of another person or alarming him would come under the expression ‘use’ of arm, constituting the offence under Section 5(1) r/w. Section 27 of the Arms Act. Arms, particularly, in the description or design of knife or sword may have several usages. But, when the accused threatened and caused fear of death in the mind of passengers by the act of brandishing the sword in his hand and shouting that he would stab each of them to death it can be held that he used the sword in violation of Section 5 of the Arms Act and thereby committed the offence there under.”

In the latter case the Court held that:-

“Thus, on reading of Section 5 along with Section 4 of the Arms Act, it can be seen that Section 5 will not be applicable in cases of arms coming under the purview of Section 4 of the Arms Act for which licence is not required. As long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie.”

In the first case there was no contention that offence under Section 27(1) of the Act would not form if the arms other than a firearm or ammunition is used without licence in a non-notified area, but in the second case the main dispute was that unless the place where the use of arm was held is a notified area there will be no such offence. In both the cases similar acts were done by the accused and both the places are somewhere in and around Kochi. And there is no dispute that the places are not notified areas.

Though apparently the considerations were not exactly the same, both the decisions run around the question whether licence is required to use the arms other than a firearm or ammunition in a non-notified area.

Objects of the Arms Act, 1959

The Arms Act, 1959 came into being on 1.10.1962 by repealing the Indian Arms Act, 1878. The Arms Rules 1962 also came into effect. The Act mainly focuses on regulating the possession, availability and the use of firearms, ammunition and arms other than firearms and ammunition. As per the 1878 Act almost all the types of weapons were included in the definition of arms. As expressed in the object and reasons of the Act, 1959, the 1878 Act was intended to disarm the entire nation, but it was found that, in certain situations, it is necessary to permit the law abiding citizens to have in possession and use firearms. Hence the Act came into effect. The object and reasons of the present Act intended to exclude knives, spears, bows and arrows etc., from the definition.  

Possession not prohibited of certain arms

The possession and acquisition of firearms and ammunition are regulated by Section 3of the Act. According to which no one can have the possession of such arms without licence. Primarily the possession of arms other than firearms and ammunition require no licence.  But in case of special situation prevailing in any area, if the Central Government is of opinion that arms other than firearms are also be regulated, that Government can issue a notification under Section 4 of the Act. Thereupon acquisition, possession and carrying of arms of such class or description also are offences, unless the person, who acquires or possesses holds licence. Section 25 (1-B) (b) penalizes the possession of arms of such description in the notified area.       

Let’s, now go though the ambit of notification under Section 4 of the Act, first.

“4. Licence for acquisition and possession of arms of specified description in certain cases - If the Central Government is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest that the acquisition, possession or carrying of arms other than firearms should also be regulated, it may, by notification in the Official Gazette, direct that this section shall apply to the area specified in the notification and thereupon no person shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that notification unless he holds in this behalf a licence issued in accordance with the provisions of this Act and the rules made there under.”

Rule 4 of the Arms Rules, 2016, explicitly provides that for the possession etc. of arms other than firearms and ammunition no licence is required in a non-notified area, which says as follows:-

“4. Licence for arms other than firearms and applicability of Section 4.─
(1) Unless the Central or the State Government by notification in the Official Gazette so directs, no licence shall be required for the manufacture, sale, possession for sale or test, of arms of Category V in Schedule I except in the areas notified under Section 4.

(2) In any area specified in the notification issued by the Central Government under Section 4 of the Act, licence for acquisition, possession or carrying in that area of arms of such class or description as may be specified in that notification may also be granted or renewed as provided in Schedule II, subject to such conditions as may be specified in these rules, that Schedule and in the licence.”

Notification in the State of Kerala

No notification is issued under Section 4 of the Arms Act 1959 so far in Kerala, whereas the notification issued by the then Madras Government under Section 17 of the Act of 1878 vide Notification No.222 in respect of the then Malabar District is still in effect in areas covered under the then Malabar District. By explaining the provisions of Section 46 of the Act of 1959 and Section 24 of the General Clauses Act, the High Court of Kerala in Jithu v. The State of Kerala(2014 (3) KLT 243) has settled this position.

Useof arms of every kind in any area is offence

What is obvious from Section 4 of the Act is that, if the Central Government makes a notification in terms of that section the acquisition, possession or carrying of arms other than firearms will also be regulated. Notification has nothing to do with the use of such arms. Use of arms is regulated by Section 27 r/w Section 5 of the Act. The language in Section 4 is clearly comprehensible.

Decision in Jinu’s case

Juxtaposing Section 4 with Section 5 of the Act, the Court in Jinu’scase (supra) observed that in order to attract Section 5 of the Act arms other than fire arms it should be “such class or description as may be prescribed” and therefore, held that as long as the area wherein the sword used is not a notified area, an offence under Section 27 will not lie. In order to understand the nuances of the problem let’s go through the Section 5 of the Act. Punishment under Section 27 of the Act is provided for the contravention of what is stipulated in Section 5 thereof.

“5. “Licence for manufacture, sale, etc., of arms and ammunition —(1) No person shall—

(a) use, manufacture, sell, transfer, convert, repair, test or prove, or

(b) expose or offer for sale or transfer or have in his possession for sale, transfer, conversion, repair, test or proof,

any firearm or any other arms of such class or description as may be prescribedor any ammunition, unless he holds in this behalf a licence issued in accordance with the provisions of this behalf a licence issued in accordance with the provisions of this Act and the rules made there under:

****

****”                                                                            (emphasis added)

And the relevant part of Section 27 reads as follows:-

“27. Punishment for possessing arms, etc.,—

  (1) Whoever uses any arms or ammunition in contravention of Section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

****

****”

Sword, an arm of prescribed description

One and only hypothesis deriving out of the above provisions is that the use, among other things,of arms of such class or description as may be prescribed, in any area, is offence. Next is to see whether the ‘sword’ is an arm of such class or description as ‘prescribed’. The word “prescribed” is defined under Section 2(g) of the Act to mean as prescribed by rules made under this Act. A schedule is attached to the Arms Rules, 2016 (previously the Arms Rules, 1962) made under the Act.

This aspect is more specifically expressed under Rule 2 of the 2016 Rules, which is as follows:-

“2. Classification of arms and ammunition.─ For the purposes of the Act and these rules, arms and ammunition shall be of the categories specified in columns (2) and (3) respectively of Schedule I and references to any category of arms or ammunition in these rules shall be construed accordingly.”

Sword is one among the categories specified therein. Hence it can be seen that sword is a prescribed arm. In the light of the above, it is apparent that prescription of certain class or description of any arm in addition to the inclusion of such arm in the Schedule is not necessary. Sword being an item included in the Schedule its use is an offence under Section 27(1) of the Act, even in a non-notified area.

Jinu’sCase, a wrong proposition

 Since the sword, being a prescribed arm within the meaning of Section 5 of the Act, its use is an offence under section 27(1) of the Act, irrespective of the fact whether the area is notified or not. In Azzi’scase (supra) it has held that brandishing a sword is using it.  Hence, it seems that, the reasoning in Jinu’scase holds no water and the same needs to be corrected.  

Conclusion

As the law is uncertain at times it is the duty of the Judges to expound it. Respecting the function of Judges, Lord Denning, in the preface to his book ‘The Changing Law’, says:-

“The truth is that the law is often uncertain and it is continually being changed, or perhaps I should say developed, by the Judges. In theory the Judges do not make law. They only expound it. But as no one knows what the law is until the Judges expound it, it follows what they make it.”   

The controversies on the application of law of arms have been the concern of law enforcing agencies since long. As the decisions referred to supra reflect incongruous propositions the lower courts and law enforcing agencies would be put to untold uncertainty. To say less, the judgment in Jinu’scase (supra) becomes another decision to be corrected by the appropriate forum of the Court.

A Look On The Ruling In 2017 (2) KLT 645

(By P. Devasahayam, Advocate, Vanchivoor, Thiruvananthapuram)

This decision (Abdul Kareem v. Muhammed Shafi) was rendered by Honourable Mr.Justice K.Harilal and Honourable Mr.Justice Raja Vijayaraghavan V. It is a case where the Landlord filed petition before the BRC Court for eviction of a tenant under S.11(2)(b) and 11(3) of the BRC Act 1965. Pending the matter Land lord filed two applications, one was for amendment of the petition under Order 6 Rule 17 C.P.C. along with S.23(1)(j) of the BRC Act seeking for incorporating S.11(4)(iii) of the Act with the allegation that the tenant had acquired possession of another building. The other application was for appointment of a commissioner. The Rent Control Court dismissed these applications. In an O.P.(RC) No.3669 of 2013 filed by the Landlord their Lordships concurred with the decision of the Rent Control Court regarding application for amendment and allowed the other application for appointment of commissioner.

I wish to discuss the decision on amendment. It was held by the court that in view of the rigour under S.23(1)(j) of the Act, Order VI Rule 17 C.P.C. cannot be allowed. It was also held that S.23(1)(j) of the Act is confined to the amendment to cure “defect or error” in the Rent Control Petition only and the cause of action for eviction on the new ground arose pending the matter petitioner was disentitled for amendment.

It was so discussed in para.12 of the decision that S.23(1)(j) is confined to cure “defect or error” in the Rent Control Petition only. According to me the literal and purposive interpretation of the Section is not only the application but the entire proceedings including application. It is the principle of law that subsequent event can be considered by the court to shorten litigation and cause of action is applicable only to suits and not application like applications before BRC Court. As per the opinion of his Lordship Justice Mr.V.R.Krishna Iyer the number of acceptance of subsequent event is legion.

Let us consider the earlier decisions on this matter in Abraham v. Associated Engineering Corporation (1984 KLT 985). It was held that Rent Control Court has power for amendment under S.23(1)(j) or inherent power or residuary powers of the Rent Controller as a Court. In Seshambal v. Chelur Corporation (2010 (1) KLT 834) it was so held by the Supreme Court at page 839 and 840, subsequent event can be considered by amendment if there is hearing upon the impact of the rights of the parties. In Mohan v. Jayaprakash (2013 (2) KLT 260) it was a case for amendment by adding a additional party to the proceedings pending the matter. After analyzing the case law it was held that S.22 or 23 of the Act does not mean that the Rent Control Court does not lacks inherent power to do substantial justice in adding parties and amending applications. In Krishna Iyer v. Abdul Rasheed (2015 (1) KLT 511) it was held that S.23 of the Act does not bar the Rent Control Court to exercise any other power which the Civil Court exercises under C.P.C. provided it does not offend the Act and Rules.

It can be seen that S.23(1)(j) of the BRC Act has been interpreted in a hyper technical way in the present case. The basic principles of judicial system under jurisprudence is for rendering substantial justice. This subsequential justice can be done through the channels of truth. There are series of procedures adopted in an enactment to find out truth. The procedures are interrogatories, production of documents, examination of parties etc. The Authority on this matter is cited in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (2012 (2) KLT SN 46 (C.No.47) SC = AIR 2012 SC 1727). Truth must be the foundation of Justice. Judges should not sit as mere umpire during trial, but play active role to find out, truth. This value of truth for administration of justice has been discussed at paras 31 to 49 of this judgment. This matter has been re­iterated in another judgment in Shanmugam v. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (AIR 2012 SC 2010). The journey of a Judge is to discover the truth. Every trial is a voyage of discovery in which truth is the quest. Paras 24 to 29 deal with truth including English, American and Israel decisions.

S.23 of the Act deals with procedure including amendment of defect or error in orders or proceedings. In this case the tenant was alleged to have obtained possession of another building entiling the landlord for eviction of the tenanted building. The word proceedings mentioned in this section has not been defined.  Applying the principle in Hydon’s case remedy is to be advanced to find out the truth for the administration of justice. As per the ruling in 1988 KLJ 55 interpretation is possible one that is reasonable on common sense.

We Lawyers are arguing our cases with the support of authorities. I have got a doubt as to the interpretation of S.23(1)(j) of the Act in view of this Ruling of their Lordships as to whether it is a pragmatic approach or pedantic approach with the goal to find out the truth for the ends of justice.