Slumbering Environment Regime: Concern of the Apex Court

(By P. Leelakrishnan (Professor, Emeritus (Law), CUSAT) and
S. Naveen (Assistant Professor, School of Laws, CUSAT)

In the recent case, Kerala State Coastal Management Authority v. DLF Universal Ltd.¹, the lethargy of environmental authorities in India is likened to the classic marathon sleep of Kumbakarna, the mythological figure in Ramayana. Irrefutably, the comparison points to the dire need to make environment regime more vibrant by clearing off all slowcoaches. As the story goes, as soon as he is woken up, Kumbakarnabecomes annoyed till he is readily supplied with plenty of food to gratify his insatiable appetite. One hopes that the comparison does not go to such imagination but is confined to reveal the inefficiency of the environmental agencies.

Facts of the case

The respondent builders, DLF Universal Ltd. (DLF), after obtaining all other requisite permits, apply for environmental clearance on 27.11.2007 for constructing a multi-storeyed residential complex². It seems that they have waited for a long period but did not get any information on the fate of their application. DLF begins the work on the strength of a provision for the ‘deemed clearance’ in the EIA notification³and almost completes the construction on 09.11.2012 when the Writ Petition is filed before the Kerala High Court. However, on 11.12.2013, the State Environment Impact Assessment Authority (SEIAA) renders what is called an ‘integrated’ CRZ-cum-environmental ‘clearance’.

The main issues involved are whether the coastal regulation zone agencies can make contradictory and varying opinions on the location of the project and whether the developer could can go ahead and complete his project when the impact assessment authorities slept over his clearance application for a long time without making a definite decision.

CRZ and EIA Notifications                                        

Coastal Regulation Zone (CRZ) Notification 2011 specifically protects coastal ecosystem and classifies coastal areas into zones⁴. It prohibits developmental activities in CRZ I, the ecologically sensitive areas, but it allows development in permissible areas including CRZ II with restrictions. The Environment Impact Assessment (EIA) notification 2006 drawn with nation-wide application lays down a mandate for environment impact assessment (EIA) of development projects with significant environment impact. The manifest object of EIA is to reconcile the conflicts between environment and development and to ease the pitch for sustainable development. Both CRZ and EIA notifications are involved in the present case under comment. The impugned building project is a category ‘B’ project that needs State environmental clearance⁵. Obviously, to avoid a predicament of projects being blocked unnecessarily for abnormally long a period due to lethargy and distraction of the clearing authorities, a time-frame is provided for communicating the final decision of the impact assessment authority to the applicants whether it is positive or not. If he does not receive the communication within the time⁶the applicant may proceed as if the environment clearance sought for has been granted.⁷Obviously, the respondent builders have resorted to this deemed clearance.

Differing views of the High Court                             

The Single Bench of the High Court holds the post-construction environmental clearance a nullity and orders to demolish the building on the ground that the clearance accorded by SEIAA was not based on the recommendation of the State Expert Appraisal Committee.⁸The Division Bench of the court agrees with the reasoning on the illegality of the clearance but decides to retain the structure after imposing a penalty of Rupees one crore. It is true that no action was taken against several other violators not only around but also in other parts of the city with more proximity to the water body.⁹The court makes it clear that this fact does not deter the court from dealing with the present case in an appropriate manner. There are other more persuasive factors. The writ petitioner does not want demolition; he desires only to assert the rule of law.¹⁰DLF has met all requirements except environmental clearance. More importantly, the court is anxious to see that the damage caused to environmental balance on not getting clearance ‘is not to be widened on causing demolition, leaving concrete rubbles and remains/debris in the area, to be dumped into the river or elsewhere once the demolition is implemented.’¹¹

Censuring Negligence and Double-speak

Dismissing the appeal filed, against the decision of the Division Bench of High Court, the Apex Court saves the structure already built up albeit retaining the penalty imposed for not obtaining ‘prior’ clearance.¹²The court takes a hard look at the negligence of the regulatory agencies deferring from the grounds relied on by the courts below. It is made clear that in the all-important process of environmental clearance, the agencies went off at a tangent with conflicting decisions.

The CESS, the agency assigned to furnish a CRZ status report, makes a positive recommendation in May 2009 that the project area is situated in CRZ II and not in the prohibited CRZ I. On a second visit to the site, CESS changes its mind and reports that DLF had reclaimed part of the low-lying areas such as filtration ponds and thus, violated the prohibitions in CRZ I. Undoubtedly, this is contradictory to its earlier stand that the project proposed was in a permissible area.¹³Events seem to happen quickly. The revenue authority issues a stop memo. The petitioner, a resident of the locality who remained silent throughout, files a Writ Petition.

The Kerala State Coastal Management Authority (KSCMA)does not find any violation of CRZ norms when at first it decides to recommend the project to Ministry of Environment and Forest on 20.03.2010.Later,there is a surprising volte-face. KCZMA alleges that DLF had reclaimed land and violated CRZ norms, KCZMA approaches the Apex Court in appeal and vehemently argues for demolition.¹⁴

The U-turn of the Ministry of Environment and Forest is quite pronounced. Its earlier stand before the High Court is that the project is valid but the Ministry changes its stand and pleads before the Supreme Court, that there has been reclamation of water bodies in the prohibited zone and that the post-construction environment clearance is invalid.¹⁵

In the midst of these conflicting opinions and shifting stands, no wonder that the court is forced to express deep resentment and to slam at the utter neglect and fluctuating stance of the regulatory bodies despite making it categorically clear that if the large scale violations were proved, there would be no other alternative than bringing down the structure. The court is of the firm view that instead of flip-flop of various authorities, greater processual clarity and better understanding among them are necessary ‘for not leaving the developers in the lurch’ and ‘their large investments at stake’.¹⁶

The Decision

Although it has applied for environmental clearance satisfying all other essential requirements in 2007, DLF gets the clearance after a period of more than seven years. Needless to say, that the delay is abnormal but oppressive. No wonder, this lackadaisical attitude on the part of the authorities persuaded DLF to shelter its project under ‘deemed clearance’ and to complete it virtually by 2012.

It is true that the Apex Court does not nullify the environmental clearance as the courts below have done. Nevertheless, they record a specific warning that ‘in future, whenever permissions are required to come and are to be obtained before the commencement of construction, it would be no answer that the activity can be carried out without obtaining the permissions.’¹⁷Though not expressly specified, the warning indicates hidden dangers lurking behind the concept of deemed clearance. The developers may at any time abuse the position with or without the silent permission of the authorities. When permission is envisaged in a time bound schedule, the court wanted clarity on what is permissible and what is not. Manifestly, there was no question mark on the various permissions to DLF to carry on construction. The fear that some area lay in the prohibited CRZ I is already dispelled in the earliest report of CESS and the recommendation afforded by the appellant KCZMA on 20.03.2010. It is the view of Supreme Court that the matter should have been settled at that stage itself.

The conclusions of the High Court seldom find favour with the Apex Court who hold the violations alleged have not emerged with clarity.¹⁸CRZ land use map given early shows that in the past there was no filtration ponds in the area and consequently, there could not have been any reclamation by the DLF. Further, there were earlier reports that the canal lying near the construction is only a drainage canal, not a water body for the purpose of determining CRZ violations. All the procedural requirements were followed when the appellant KCZMA, recommends that the construction fell under CRZ-II and the narrow canal was not an impediment to the construction. When the State Expert Impact Assessment Authority (SEIAA) is created, the Ministry of Environment and Forest in its ‘own wisdom’ forwards the whole file so that the newly formed state authority can exercise its expertise for environmental clearance. One finds that on 31.10.2013, SEIAA, being the final authority, cleared the proposal after seeking explanation from DLF. This is what weighs with the Apex Court. For the authorities to say otherwise or contradict themselves would not be fair to DLF and would cause grave uncertainty if such an approach is permitted.¹⁹This is especially so in view of the contradicting stands taken by each recommending or deciding authority in different times.

Conclusion

With clear and unambiguous conclusions, the highest court of the land observes, that ‘whatever the manner in which the provision for clearance is worded, it should imply hence forththat a prior clearance and necessary clarifications should be issued by the authorities in a time-bound manner to obviate such situations in the future.’²⁰This is a strong signal that instead of dilly dallying, the administration should initiate actions at the earliest opportunity and avoid the abuse of ‘deemed clearance’.

In the court’s view, the policy for more single window clearance may have simplified the methodology of processing applications resulting in less uncertainty and better enforcement.’²¹One may say that the strategy may not be a panacea for the existing maladies of the system. There is no substitute for the vigilance and objective assessment by the authorities as well as for their commitment to the duty to protect and improve the environment. Bereft of these values, the very existence of laws is no guarantee that administrative agencies shall be efficient and laws operated and managed effectively. Inefficiency and negligence of the drowsy and uncaring authorities fail to preserve critical natural resources and adversely affect the quality of the ecosystem. Conservation is possible only when it is done with utmost care and attention. Needless to say, that sleeping regulators shall be awakened and made more responsible and disciplined.

Foot Note:

1.    2018 (2) KLT  = (2018) 2 SCC 203.

2.    Ibid. Such as building permission from the Municipal Corporation, NOCs from Pollution Control Boards and Fire and Rescue department and the site clearance from the Navy.

3.    See notes 6 and 7 infra.

4.    S.O. 19(E) dated 6th January 2011.

5.    S.O.No.1533 dated 14.09.2006. The SEIAA clears ‘B’ category projects. Until SEIAA is constituted, central authorities [Expert Appraisal Committee (CEAC)] will appraise and clear ‘B’ projects.

6.    Ibid. Paragraph 8(i), the time frame is 105 days after the recommendation, positive or negative, of Central or State environment appraisal committee is received. Paragraph 8(ii) provides 130 days for the communication if it is after the process of reconsideration.

7.    Ibid. Sub-paragraph 8(iii) affords the deeming mechanism. which runs, “In the event that the decision of the Regulatory Authority is not communicated to the applicant within the period specifiedin sub-paras (i) and (ii) above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or deniedby the Regulatory Authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Appraisal Committee concerned.”

8.   Antony A.V. v. Corporation of Cochin(2015 (1) KLT 178 p.187).

9.   DLF Universal Ltd v. Antony (2017 (1) KLT 438 p.459).

10.  Ibid p 460

11.  Ibid pp 458, 459(emphasis added).

12.  Kerala State Coastal Management Authority v. DLF Universal Ltd.(2018 (2) KLT =(2018) 2 SCC 203). Later in the month of April, 2018 the Apex Court dismissed KSCMA’s petition for review too.

13.  Ibid pp 221, 222.

14.  Ibid pp 210–214. It pleads its inability to move early as it has no enforcement mechanism and has to solely depend on the municipal body for enforcement. The Apex Court warned that KCZMA having a crucial role in preserving the environment in the coastal area cannot wash their hands off by the alleged lack of an enforcement force.

15.  Ibid pp.215, 216. It was argued that the environmental clearance by SEIAA under EIA notifi-cation was invalid without appraisal and approval by KCZMA under CRZ notification.

16.  Ibid p 220.

17.  Ibid p 221.

18.  Ibid pp 222, 223.

19.  Ibid p 223.

20.  Ibid. Italics is ours. The impugned order to deposit`1 crore can be treated as a fine for starting construction without obtaining prior clearance but the amount should go to KCZMA and not to the Collector.

21. Ibid p.224.

Justice Vis-a-VisJudgments  – An Analysis

(By Veena K.B., Judicial First Class Magistrate – II, Palakkad)

Introduction:

This was one of the first thoughts which triggered my consciousness when I entered Judicial Service as a Munsiff-Magistrate. Having completed only a few years in my service, I venture to share some humble thoughts on the subject.

To begin with, the term ‘Justice’ is not defined in any of our statutes, as it is not a simple ‘term’, but a ‘concept’ to be propounded. The concept of justice is writ larged in our administration of law and legal process. The term ‘Judgment’ is defined under S.2(a) of the Civil Procedure Code, 1908 in the following terms: “Judgment means the statement given
by the Judge on the ground of a decree or order”. It is the statement of reason for the Judge to arrive at the conclusion. Thus the reasoning is the soul of a judgment. In that we are guided by proof of existence and non-existence of facts and the presumptions of law, of facts and conclusive proof to arrive at the final decision. In that process, evidence is the ‘means’ to which the proof is the ‘end’.

Section 3 of the Indian Evidence Act, 1872 defines ‘proved’, ‘disproved’ and ‘non-proved’; which definition is the very basis of appreciation of evidence and the standard being that of a normal prudent man. The question at this juncture is, are we guided by the definition in arriving at our decision, or get into a most hyper technical view so to frustrate the administration of justice. I concede, that it is not in all cases that we are taken into the Kurushetra of ‘justice’ and ‘judgment’. But at times we may get entangled in both, searching for the ‘honeybees of Solomon’, to guide us to the truth.

Law is evolved to protect the honest and the vigilant and not for the cunning and the shrewd. Law is for the dispensation of justice and not for dispensing with justice. In the process of appreciation of evidence, law is to be applied to the facts proved and not vice versa.If the latter is done, it will only lead to the moulding of facts according to law and ultimately will disrupt the justice delivery system.

Case study

The point can be brought to light by one or two case study.

Case No.1:In a suit for partition, the defendant relies on a gift deed and the fact remains that there is absence of executant’s signature at the last page of the gift deed. The executant is no more and the gift remained unchallenged during the life time of the donor. Then the question is how fatal it is to enter a finding on the validity of the gift deed. According to the plaintiff, the gift deed is not at all a valid document, since the executant had omitted to put the signature at the ‘attestation clause’. On the other hand, the defendants prayed to non-suit the plaintiff by upholding the gift deed, as according to him, the attestation is not confined to any particular page of a document.

On that score, both sides relies upon the decision of the Hon’ble High Court of Kerala inBaburajan v. Parukutttyreported in (1999 (1) KLT 425), in which case, the testator omitted to put signature in one of the middle pages of the will and Hon’ble High Court took the view that since the testator had put the signature at the 1st page and at the ‘attestation clause’, the intention of the testator to bequeath is proved, the will cannot be held to the invalid. Then the next point is how the above quoted decision has got a bearing on the above issue. Section 122 of the Transfer of Property Act 1882 defines ‘Gift’, Section 123 provides for the attestation of the gift deed thus requiring the mode of proof as provided under S. 68 of Indian Evidence Act 1872. In the case in hand, attesting witness examined proved due attestation. It is pertinent to note that S.3 of the Transfer of Property Act, 1882, which defines “attested” also reads that “no particular form of attestation shall be necessary”.

So the point is, in the case where attestation, registration and circumstances under which the deed is executed, is proved, is it, justifiable to invalidate the deed on a most hyper technical view that the executant has omitted put the signature at the last page. Is it difficult to find that the attestation pertains to whole of the document and does not confine itself to the attestation clause. It is at this juncture, the above discussed point of application of law into proved facts becomes relevant to advance the course of justice.

Case No.2:The second case is where the plaintiff sues for lateral support for the property and the compound wall and the defendant contends that since the plaintiff has burdened his land with additional pressure, he is not bound to give support to the plaintiff’s property.

Illustration (e) to Section 7 of Indian Easements Act, 1882deals with lateral support. To quote:

“The right of the every owner of land that such land, in its natural conditions, shall have the support naturally rendered by the subjacent and adjacent soil of another person.

Explanation- Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the ‘subjacent and adjacent soil’ mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.”

The question at this juncture is whether the plaintiff by putting up a compound wall has lost his natural right of support in view of the explanation to the said illustration. Upon a technical application of law, it may follow that as and when the dominant owner alter the natural condition of his land, the servient owner can withdraw the support rendered by his land. But in that matter, the crucial question to be gone into is whether the additional burden, substantially and materially altered the dominant heritage and even in the absence of the imposition, the acts of the defendant is likely to cause damage to the plaintiff. That is, if he digs to the extremity of his property in a most careless manner, the same is actionable, since that act amounts to disturbance to right of lateral support and even if there is an additional burden on the dominant heritage, which he is liable to support only when it has ripened into an easementary right. So the crux of the matter, is that not only the natural condition of the dominant heritage, but also the act of the defendant being careless makes it actionable. The Hon’ble High Court of Kerala in Narayanan v. Sankaranreported in (1971 KLJ 599), discussed the point and it was held as follows:

“The relevant question would be not only whether there are additional structures or additional weight imposed on the land of the plaintiff but whether even without such an imposition, the acts of the defendant are likely to cause damage to the plaintiff. If it is likely to cause damage to the plaintiff, then plaintiff would be entitled to the injunction as prayed for”

And the same was later reiterated by the Hon’ble High Court in Ramakrishnan v. Devassy reported in (1988 (2) KLT 365). This illustration also emphasizes the above discussed
aspect of adherence to facts in the administration of justice.

Conclusion

My attempt was only to stress upon standard of appreciation of evidence in a given case, the yardstick of which is laid down in the most possible means in our law of evidence and not to depart from it for the sake of some hyper technicality. Let me close, by quoting the words of Mahatma Gandhi:

“Facts means truth, and once we adhere to truth, the law comes to our aid naturally.”

Taking Cognizance of an Offence – The Disillusionment Still Continues*

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

The Issue

When is a Magistrate said to have taken cognizance of an offence? This basic question is posed herein. The legal fraternity is completely cognizant that the issues concomitant to the magisterial act of taking cognizance of offence is always a contentious affair. Re-reading of this legal aspect has been propelled by the judgment of the Single Bench of the Hon’ble High Court of Kerala rendered in Joshy Varghese v. Mar George Alancherry(2018 (1) KLT 904).

The topic in this case was whether the Magistrate can order an investigation u/S.156 (3) of Cr.P.C. (the Code) by reverting back, after having examined the complainant u/S.200 of the Code. The Court ingeniously held that such a move is not permitted in the scheme of the Code, but in the course of discussion, the Court observed that the Magistrate has not taken cognizance of offence (nonetheless the complainant was examined) in that case till then. Here lies the question, when the Magistrate takes cognizance of an offence, and also, does this decision conveys the correct proportion of law.

The Facts in Joshy Varghese

In Joshy Varghese(supra) a complaint was filed alleging offences u/S.406, 420 and 120B of I.P.C. The relief sought was to forward the same for investigation u/S.156 (3) of the Code, but the Magistrate without paying any heed to that, decided to examine the complainant, and after examination of the complainant directed to produce his witnesses. At this stage the complainant moved the High Court with a prayer to direct the Magistrate to forward the complaint u/S.156 (3) of the Code. In that occasion the Court expressed the opinion as to the law of taking cognizance. In the words of the Court:

Evidently, it is true that the learned Magistrate has not so far taken cognizance of the offence on the complaint. At the same time, it is a fact that the learned Magistrate has decided to have recourse to the procedure for taking cognizance of the offence/offences on the complaint and that is the reason why the learned Magistrate has recorded the sworn statement of the complainant. The Magistrate was not satisfied with the sworn statement of the complainant alone for taking cognizance of any of the offences on the complaint, and that is the reason why the learned Magistrate has evidently directed the complainant to produce his witnesses for recording their statements.             (emphasis supplied)

And finally the Court declared the law that once the Magistrate decided to take cognizance of an offence on a complaint and has proceeded with accordingly, the Magistrate cannot go back to the stage of S.156 (3) of the Code.

Meaning of ‘Taking Cognizance’

No enactment defines the word ‘cognizance’, yet the judicial answer to this conundrum is well settled; the ratiocination of the judges, who found answer to this issue, is well acclaimed.

As early in 1910, the first High Court in India in Emperor v. Sourindra Mohan Chuckerbutty [(1910) ILR 37 Cal.412 ] observed that taking cognizance does not involve any formal action, or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.

Another earliest observation on the above question can be seen in the words of Das Gupta, J. in Superintendent And Remembrancer v. Abani Kumar Banerjee(AIR 1950 Cal. 437).

To his words:

What is “taking cognizance” has not been defined in the Criminal Procedure Code, and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal P. C., he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter,--proceeding under Section 200, and thereafter sending it for enquiry and report under Section 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g., ordering investigation under Section 156(3), or issuing a search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of the offence.

The above observations are not isolated ones. In a plethora of cases, the High Courts and the Supreme Court with approval have quoted the above findings of the Calcutta High Court, hence, now it is a well settled position of law that, when the Magistrate decides to examine the complainant or decides to proceed with the complaint (e.g. issuing summons to the accused without the examination of the complainant in case the complaint is by a public servant in his official capacity) other than to send it for investigation, the cognizance of offence is taken.

In Tula Ram v. Kishore Singh(AIR 1977 SC 2401), it was viewed thus:   

It seems to us that there is no special charm or any magical formula in the expression “taking cognizance” which merely means judicial application of the mind of the Magistrate to the facts mentioned in the complaint with a view to, taking further action. Thus what Section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations.

Examination of Complainant Only After Cognizance

The process of taking cognizance of offence requires nothing more than the decision of the Magistrate to proceed with the complaint or the final report of the police, under Chapter XV of the Code; it happens in the initial stage. In other words, the act of taking cognizance presupposes the examination of the complainant in complaint cases. In that sense, the Magistrate cannot proceed to examine the complainant unless he takes the cognizance of the offence.*It is held that when the case is adjourned for examination of complainant, the Magistrate has taken cognizance of offence. Some of the other cases where the Apex Court expressed the opinion that the Magisterial act of taking cognizance of the offence is over by the time he decides to move further after applying his mind are Cref Finance Ltd. v. Shree Shanthi Homes Pvt. Ltd(AIR 2005 SC 4284), Narsingh Das Tapadia v. Goverdhan Das Partani(2000 (3) KLT 605 (SC) = (2000) 7 SCC 183), Devarapally Lakshminarayana Reddy & Ors. v. Narayana Reddy & Ors.(AIR 1976 SC1072).

Conclusion

There are some stages, established by the procedural law, in the prosecution of any case. Taking cognizance of offence by courts, being one of such stages, upon which the case steps forward in a criminal matter, assumes some importance. Unless the law is explained correctly by the courts, the decisions of which have the precedential value, there will be confusion and uncertainty among the lower courts and the legal sodality. The law, in the field of cognizance of offence, is being as mentioned above, in Joshy Varghese’scase (supra), it can be seen that, the Magistrate already had taken cognizance of the offence at the time he decided not to invoke Section 156 (3), but to resort to Section 200 of the Code. It is not because the Magistrate decided to take cognizance of offence, but for the reason that he has taken cognizance of offence by deciding to examine the complainant the scope under Section 156 (3) of the Code was closed. In fact, there is no stage of deciding to take cognizance of offence.So, the view of the learned Judge of the Single Bench of the High Court, that the Magistrate has only decided to take cognizance of offence after he examined the complainant, does not reflect the correct law, it seems, it is submitted.

Foot Note:

*State of West Bengal v. Bijoy Kumar Bose (AIR 1978 SC 188). Also See Sohoni’s Code of Criminal Procedure, 20th Edition, Page No.2569.

Can a Ship held Under a Demise Charter be Arrested for a
Claim against the Charterer

(By V.B.Hari Narayan, Advocate, High Court of Kerala)

Facts:

In the recent decision of Sunil B. Naik v. Geowave(Civil Appeal No:2617/2018 dated
9.3.2018) the Supreme Court has shed light upon a crucial point of admiralty law concerning enforcement of maritime claims through arrest of the vessel held by a Charterer.

Reflect Geophysical Pte Ltd (‘Reflect’) entered into a bareboat charter with Master and Commander AS Norway (‘AS Norway’) for the vessel Geowave Commander (‘Geowave’)
in order to discharge its obligations under a contract awarded by Oil & Natural Gas Corporation (‘ONGC’) in 2012. As per the contract, Reflect was required to carry out seismic survey operations off the cost of Gujarat near Okhra port.

To facilitate the survey operations, Reflect entered into a charter hire agreement with M/s.Sunil B.Naik for the supply of 24(initially for 16) fishing trawlers being chase vessels. Likewise, a vessel ‘Orion Laxmi’ was hired from one Yusuf Abdul Gani to support survey vessel Geowave. In default of payment due under the hire contracts, Sunil Naik and Yusuf Gani obtained orders of arrest against the vessel Geowave from the Bombay High Court in order to enforce their respective maritime claims. On a notice of motion filed by AS Norway, the learned Single Judge vacated the order. Hence, an appeal was filed before the Division Bench. The same was dismissed and thus the matter was before the Supreme Court.

Issue

The principal issue in the appeal was whether a maritime claim could be maintained under the admiralty jurisdiction of the High Court for an action in rem against the respondent ship in respect of the dues of the appellants against the charterer who was not the de jure owner of the ship.

Principal Argument

The appellants alleged liability on the part of the respondent vessel based on the rights and obligations flowing from the charter hire agreement. They pressed their case further by putting up a plea for “beneficial ownership”, in an attempt to equate the status of a demise charterer with that of a beneficial owner. In order to canvas for such a proposition, the appellants relied on Medway Drydock & Engineeing Co Ltd v. MV Ursula (1973) QB 265 and Epoch Enterrepots v. M.V. Won Fu (2003) 1 SCC 305.

The respondent challenged the existence of a maritime claim and the corollary right to arrest the respondent vessel. It was argued that the maritime claim lay in respect of the appellants’ vessels. In addition, on account of Reflect not being an owner of the respondent vessel, the same could not be arrested.

Reliance was also placed by both sides on the celebrated case of M.V.Elisabeth (AIR 1993 SC 1014) for establishing (for appellants) and disproving (for respondent) jurisdiction.

Analysis

Admiralty Jurisdiction in India & Maritime Claims

In order to address the issue at hand, the Supreme Court extensively dealt with the law relating to admiralty jurisdiction in India with respect to maritime claims.

Regarding the scope of exercise, the appellants relied on the expanding jurisdiction by referring to the new Admiralty Act of 2017 under which the claim includes services rendered for the operation, management and preservation of the vessel.The appellants argued that the agreement related to the above provisions and hence the case fell within the admiralty jurisdiction of the Court.

On the other hand, the respondents argued that the charter hire agreement did not concern provision of goods or services and in fact related to use of the appellants vessel. In addition, the respondents stressed on the importance of fundamental principles of admiralty jurisdiction, and reiterated the rationale and manner of exercise of an action in rem.As laid down in MV Elisabeth, a right in remis conferred upon a claimant by virtue of admiralty law and allows him to proceed against the ship or cargo. It is distinguishable from a right in personamto proceed against the owner. An action originally commencing in rembecomes a personal action against the defendant upon appearance. The right
in remarises from a maritime lien or claim imposing a personal liability upon the owner of the vessel. Thus, the respondent’s argument was that the vessel could only be arrested in case of liability against the owner of the vessel. It was argued that Reflect was not the owner of the ship, and hence the respondent vessel Geowave, owned by AS Norway could not be proceeded against. In order to determine the jurisdiction, the Supreme Court followed a two-fold approach.

The Court first ascertained if the bareboat charterer Reflect was the de jure ownerof the vessel. Second, the Court determined the vessel to which the maritime claim under the charter hire agreement related.

Ownership of the Respondent Vessel

In order to resolve the issue regarding ownership of the respondent vessel, the Court examined the nature of agreement between Reflect and AS Norway in particular clauses from the concerned charterparty dealing with maintenance, use of vessel, changes to the vessel, indemnity etc.

The charter agreement did contain a clause for conversion of the status into a de jure owner but the occasion for the same never arose. The option to purchase was to be exercised by an advance intimation of six months prior to the end of the charter period and the purchase price was also specified. Also, the charterer could not make any structural changes in the vessel or in the machinery, boilers, appurtenances or spare parts thereof without first securing the owner’s approval and the vessel had to be restored to its former condition before the termination of the charter, if so required by the owners.

Further, the Court delineated on the nature of a bare boat charterparty and differentiated it with contracts of affreightment (primarily time and voyage charters).

As explained by the Court, a bareboat charter or a charter by demise operates to act as a lease pursuant to which possession and control is passed from the owners to the charterers, whilst the latter(COA), are in essence contracts for the provision of services, including the use of the chartered ship.

The appellants relying on the case of MV Ursula argued that demise charterers could be equated to a “beneficial owner” in order to bring an action in remunder Section 3(4) of the Administration of Justice Act, 1956. In the case, the determinants for a beneficial ownership were held to be lawful possession and control of the ship, irrespective of having legal or equitable ownership.The Appellants also placed reliance on the case of Epoch Enterrepots to differentiate between different types of charter parties and to assert that in the case of a demise charter, the charterer has complete control of the vessel.

However, the above arguments did not hold water, and the Supreme Court noted that the rule in Medway Drydockwas not accepted and followed in subsequent decisions.

In I Congreso Del Partido (1978) QB 500 it was held that even though a demise charterer has, within limits defined by contract, the beneficial use of the ship; he does not, however, have the beneficial ownership as respects all the shares in the ship.In The “Father Thames” (1979) 2 Lloyds Rep 364 Sheen J. also declined to follow Medway Drydock & Engineering Co. Ltd. and followed I Congreso Del Partido and held that the phrase “beneficially owned” in the 1956 Act did not apply to a demise charter.

The Singapore Court of Appeal in the decision of The “Permina 3001”(1979) 1 Lloyds Law Reports 327 has adopted the similar view that a ship in full possession and control of a person, who is also not an owner of all the shares therein cannot be utilized for the purposes of restraint of the ship.

In the Canadian case Mount Royal/Walsh Inc. v. The Ship Jensen Star el al ((1990) 1 FC 199) it was held that the qualifying term “beneficial” could only be used in reference to the title in remitself.

On analyzing the above authorities, the Supreme Court held that there is a clear distinction between the beneficial owner of a ship and charterer of a ship, and hence Reflect was not the beneficial owner of the ship.

To delineate further on the rationale, the Court drew parallels with a garnishee order where even though amounts held by a third party on behalf ofthe defendant can be attached to satisfy a claim arising against the defendant , recourse cannot be taken towards a third party’s own money. Similarly, in a maritime claim, somebody else’s vessel cannot be arrested.

The Vessel in Issue

In order to determine this issue, the Supreme Court turned to the Arrest Convention of 1999.Article 1 specifies that the maritime claim means a claim inter alia arising out of an agreement relating to use or hire of “the ship.”

It was held that the “ship” connotes to appellants’ vessel being the 16 trawlers and Orion Laxmi and the maritime claim against the above vessels could not be converted into a maritime claim against the respondent ship not owned by Reflect Geophysical.

The contracts entered into between the appellants and Reflect constituted charter hire agreements/contracts and the unpaid amounts under these contracts could only amount to claims against Reflect.

If there was another vessel owned by Reflect, the appellants would have had the remedy to seek arrest of that vessel. Alternatively, if the respondent vessel was put under the de jureownership of Reflect, the appellants could have recovered from the arrest of the vessel.

Judgment

In full agreement with the decision taken by courts below, the Supreme Court dismissed the appeal and held that an order of arrest cannot be made against a ship to enforce a maritime claim against a third-party who is not the de jureowner of the ship.

Comment

The decision of the Supreme Court has brought to light an important issue in admiralty law and is helpful for the shipping industry which comes across similar issues often. It provides an interesting insight into issues where under a charter agreement two vessels are involved. The decision also comes as an eye opener for creditors who should devise alternatives for recovery, for e.g., through a letter of credit.

The decision is commercially sound. The owner of a vessel stands as a third party to any agreement that is entered into between a demise charterer with another party. A default of the demise charterer should not expose the owner of the ship to any liability by virtue of arrest of the vessel.

DECISIONAL AUTONOMY AND THE LEGAL AGE TO MARRY:

FAR FROM THE FIRST STEP TOWARDS DESTINATION?

(By Dr. Sandeep Menon Nandakumar, Assistant Professor,

School of Legal Studies, REVA University, Bangalore)

Abstract

The legal age of marriage of girls in India is eighteen and though the same is an established law of the country, our courts have, time and time again, questioned the validity of the decision of a major girl regarding her marriage. The recent apprehensions by the Courts in the country regarding the decisional autonomy of girls above eighteen regarding their marriage have raised a lot of debate. Any attempt made by the organs of the State to question the goodness of the decision of girls regarding marriage infringes upon the decisional autonomy conferred by the very same organs of the State. The decision and, especially, the remarks made in certain judgments make one feel that a girl does not possess decisional autonomy over her personal life even after the age of majority. This article examines the situation in India regarding the decisional autonomy of girls regarding marriage and the right of parents and judiciary to enforce their decisions regarding marriage over those girls who have attained the age of majority. This article argues that it is time that the Indian society realises and admits that girls are not allowed to exercise and enforce their decisions even in personal and important matters of their life and there should be a line drawn beyond which her parents or any other institution, for that matter, cannot transcend.

Introduction

The Supreme Court in 2018 set aside the order of a High Court which annulled the marriage of a 24 year old girl[1].  There is nothing strange in a girl marrying at the age of eighteen as it is the age prescribed under law for marriage. However, it is an issue to contemplate when the highest appellate court of an Indian State makes a remark in a judgment pronounced in an open Court that “a Girl aged twenty four is weak and vulnerable.”[2] The major reason why it is to be considered as an issue to contemplate is because the case was related to the custody of a married girl aged twenty four in a Habeas Corpus petition filed by her father. The reasons for the learned Judges of the High Court

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1.Shafin Jahan v. Asokan K.M. & Ors.Criminal Appeal No.366 of 2018 (Arising out of S.L.P.(Crl.) No.5777 of 2017).

2. Para 50 of the judgment dated 24.5.2017 in K.M.Asokan v. State of Kerala (W.P.(Crl.) No.297 of 2016 (2017 (3) KLT 2010).

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in concluding that the marriage, performed as per Islamic customs by an otherwise Hindu girl claiming to have converted to Islam, is a sham seems to be legitimate. The Court was concerned with the welfare of the girl in question and was apprehensive about chances of forcibly converting her to another religion by the respondents in the case. But the comments and statements indicating that even girls above the age of eighteen is weak and vulnerable and that they can be easily persuaded to even change their religious beliefs show some mismatch between the legal age to marry and decisional autonomy of girls above the age of eighteen. It was shattering to note that the Apex Court was called to step in a purely personal matter and decide the validity of the marriage between two consenting adults.

Decisional Autonomy and the Legal Age to Marry: The Mismatch

The statement that girls above the age of eighteen are weak and vulnerable have a direct relation with their decisional autonomy over marriage and it challenges the fundamental concept of legal age for marriage of girls in India. If the interpreters of law believe that they are still vulnerable after attaining the legal age to marry, then it is time that a rethink is made with regard to fixing their legal age of marriage as eighteen. The relevance of this issue is not because of some random statements or remarks in a single judgment. Earlier in 2014, the same Court (not the same Bench, but the same strength), in Dr.Parameswar Lal v. N.N.Ullas and Ors.[3] held that the parents cannot concede absolute decisional autonomy to their children who have attained the age of majority and that social establishments like families grant parental authority to advise and guide their wards.[4]  This observation was also made in a Habeas Corpus petition filed by a doctor against the parents of a daughter who was also a doctor employed in the same place as that of the petitioner. Though the Court admitted the relationship between the petitioner and the detenue and also confirmed that the detenue has decided firmly to marry the petitioner, the Court decided in favour of the parents who kept her in confinement by denying her the right to employment and the freedom to use a mobile phone. The observation from the judgment quoted below would prove this,

“In answer to our (Court’s) questions, she (detenue) confirmed her love affair with the petitioner and also told us that it is her firm decision to get married to the petitioner. She also told us that in order to force her to withdraw from the relationship, for the last three months, she was kept in confinement without allowing her to continue the employment and even refusing to give the mobile phone, which she had. She also told us that all these facilities will be restored only if she agrees for a marriage with somebody else, which was not acceptable to her.” [5]

The Court’s decision against the detenue’s decisional autonomy was after the admission of the Court that “we (Court) interacted with her (detenue) in detail and were prima facie satisfied that there is truth in the allegations of the petitioner.” [6]

The issue regarding legal marriageable age becomes more complex when, in India, the Law Commission recommends lowering of legal age for marriage of boys to eighteen

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3. 2014 (1) KLT 937.

4. Para 21 of the Judgment in Dr.Lal Parameswar v. N.N.Ullas and Ors. (2014 (1) KLT 937).

5. Para 2 of the Judgment in  Dr.Lal Parameswar v. N.N.Ullas and Ors. (2014 (1) KLT 937).

6. Para 2 of the Judgment in Dr.Lal Parameswar v. N.N.Ullas and Ors. (2014 (1) KLT 937).

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and the High Courts recommend increasing the legal marriageable age of girls to twenty one. The 18th Law Commission in its 205th Report in February 2008 had recommended that the age of marriage for both boys and girls should be eighteen years as according to them the discrimination in the age of marriage for boys and girls lacks scientific reason.[7] The Law Commission did not find any rational basis for prescribing different ages for marriage of boys and girls. In the year 2016, a government appointed high-level panel had recommended amendments to make the legal age for marriage of boys and girls to eighteen, thereby to remove the gender based discrimination that exist in Indian family laws.[8] The recommendation was based on the 18th Law Commission recommendations. At the same time, the Madras High Court in Thiagarajan v. S.I.of Police, Trichy & Ors.[9] expressed concern over the disparity in legal marriageable age of girls and boys in India. The Court was concerned whether a girl could acquire social and psychological maturity at the age of eighteen when compared to the boys who are at the age of twenty one.[10] To make matters worse, a petition has been filed in February 2018 [11] to fix the legal age for marriage for boys and girls as 25 years and 21 years respectively. The suggestion has been made in the petition so as to ensure population control thereby ensuring freedom from poverty and other social menaces.

The presumption of the whole country that girls should be younger to boys at the time of marriage should be done away with. A comparative analysis made with regard to legal age for marriage in other countries would reveal that same age for both boys and girls (be it eighteen or twenty one) are fixed by most of the nations. The discussion regarding physical maturity and hormonal maturity and its proximity with the age of eighteen has been avoided here primarily because there is much more to the concept of marriage than physical intercourse. Arguing for second thoughts about legal age for marriage of girls is in the context of social and psychological maturity that enables a girl to have complete autonomy over her decisions, or in other words, in the context of whether a girl attains sufficient maturity to decide for herself. However, the version that the physical and hormonal maturity is the reason for fixing 18 as the age for marriage of girls has gained popularity. Due to the very same popularity, it is not surprising that one of the courts in India granted divorce to the husband who claimed that wife abstained from sex.

The law in India, which states “sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape” [12], that has legalized marital rape is another example of linking marriage with physical intercourse. Laws like this would continue to be valid just like the terms in family law such as ‘maintenance’ are sanctioned

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7. Law Commission on PROPOSAL TO AMEND THE PROHIBITION OF CHILD MARRIAGE ACT, 2006 AND OTHER ALLIED LAWS, 205th Report, 41.

8. Shalini Nair, Family law reforms: Change Adultery Law, Fix Marriage Age for Both Boys, Girls at 18 yrs, Says Government Panel (October 9, 2017, 5.30 p.m.), http://indianexpress.com/article/india/india-news-india/family-law-reforms-change-adultery-law-fix-marriage-age-for-both-boys-girls-at-18-yrs-says-govt-panel/.

9. Habeas Corpus Petition (MD) No. 1039 of 2014 dated 03.09.2014.

10. Para 12.

11. Ashwini Kumar Upadhyay v. Union of India, Writ Petition (Civil) No 157 of 2018.

12. Exception to Section 375, I.P.C.

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under our law. There are no issues with the term ‘maintenance’ as one of the meanings of the term is connected to providing financial support, but sometimes when read along with other atrocities like domestic violence, molestation and rape, the term ‘maintenance’ seems more like a technical term that denotes woman as a property.

The fact that a girl attains social maturity at the age of eighteen, i.e., hardly months after completing her school education, is hard to digest and in these lines, the statement made by the Hon’ble Judge in K.M. Asokan v. State of Kerala [13]  that “the detenue who is a female in her twenties is at a vulnerable age” is logical. But when the case in hand is related to parental custody of a girl aged twenty four years who has voluntarily married a man of another religion, the order of the learned Judges that the state police should “ensure that she (detenue at her hostel) is not provided the facility of possessing or using a mobile phone” seems unreasonable.

Conclusion

Marriage is, without a doubt, an important choice in life. Though the legal age for marriage of girls is fixed as eighteen years and still girls in India are not conceded the power to make decisions regarding marriage. A girl aged eighteen can marry, if parents have consented to the marriage or if they have arranged the marriage. But she cannot take a voluntary decision to marry or not at the same age. More regrettably, she cannot decide the spouse to whom she wants to get married to. The first step to be taken to solve an issue is to realise that there is one and then take the first step in achieving the destination accordingly. The Indian society and the laws that prescribe different age for boys and girls for marriage keep on stereotyping and discriminating women and the lack of understanding of their real life issues shows that we are far from the first step towards destination.

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13. Para 7 of the judgment dated 24.5.2017 in K.M. Asokan v. State of Kerala (W.P.(Crl.) No.297 of 2016 (2017 (3) KLT 2010))