Notary Advocates as Mediators, Arbitrators or Conciliators

(By A.M. Ashraf, Judicial First Class Magistrate, Kodungallur)

A dispute precedes a litigation. A dispute may be raised because of ignorance on the part of disputant. The relationship between the litigants become, bitter when his ignorance about his right is fueled by his ego. If a disputant is empowered by making him aware of his right, the dispute may come to an end. Due to inherited legacy of huge arrears, almost all courts are heavily burdened with these tasks and consequential delay in disposal of cases, more often defeats justice invariably, adds complications to the already complicated issues involved. Function of Notaries was at one point of time considered to be a Notary to attest, verify, authenticate, certify the execution of an instrument. But the conventional concept has undergone a sea of change with the insertion of new sub-section in S.8 of Notaries Act 1952. Really object of the enactment was to change the Notaries with duty of mediating and promoting the settlement of disputes as and when they are called to it. In these juncture , Notary Advocate will have an important role to play, but the goal cannot be achieved unless requisite institutional frame work is put to place.

Section 8(hb)(Ins. by Act 36 of 1999 effect from 17.02.1999) would supplement that a Notary may do by virtue of his office, act as an arbitrator, mediator or conciliator, if so required. Hence a section of legal practice have become dressed as mediators, conciliators and arbitrators (It is apposite to provide appropriate training). Unequivocal picturesque rains a point that a notary has authority or authorised to act as an officer of ADR (Alternative Dispute Resolution) mechanism, which provided additional form in the dispute resolution mechanism. But our awareness or lack of it would be tested from the fact that how many of us are aware that in terms of section 8(hb) of the Notaries Act in 1952 one of the functions of a Notary is to act as an arbitrator, conciliator ?. How many of us even think of availing the services of Notaries as mediators who are absolutely untrained ?.

Sub-section (1) of Section 89 of C.P.C. empowers the court to formulate the terms of settlement and give them to the parties for their observation and reformulate the terms of a possible settlement and then refer the same for any one of the ADR processes. If sub-section (1) of Section 89 is to be literally followed, there is nothing wrong in entrusting a matter to a Notary Advocate by virtue of S.(hb), for any one of the ADR process. Ideo , in the matter of ADR process , the Notary Advocates should be encouraged.

The job of Notary Advocate is that facilitator or arbitrator. But the tasks of the facilitator is not that of arbitrator. The arbitrator decide issue between the parties, a Notary Advocate bring them together with the object of settling the dispute. Ideo, a Notary Advocate unlike a lawyer is a healer of conflicts and not a combatant. Duties of Notary Advocate cannot be confined solely with a view to verify, authenticate or attest the execution of any instrument. Their duty is to act as a commissioner to record evidence in any civil or criminal trial, if so directed by any Court or Authority, but also a Notary Advocate may act by virtue of his office to act as an arbitrator, mediator or conciliator, if so required. So, the input is the Notaries are to be invited to be part and parcel of ADR process too, after imparting training.

Registration of Marriage Act, Some Important Rulings

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

Registration of Marriage (Common) Rules 2008 Kerala, Rules 5 & 6

1. In view of the introduction of Kerala Registration of Marriage (Common) Rules 2008,the Government should seriously consider amendment to the Registration Rules prohibiting registration of agreements under “Head as Marriage Agreement”.

ILR 2009 (2) Ker.95 (D.B.) (Sayed Abdul Basil v. Assistant Commissioner of Police).

2. Marriages of persons who are Indian Citizens belonging to various religions should be made compulsory in their respective States where the marriage is solemnized. 2006(1) KLT 791 (SC) = 2006 (2) MLJ 15 (Seema v. Ashwani Kumar)

3. Registration of Marriages (Common) Rules, 2008 (Kerala), Rr.13 & 9(1) — Correction in marriage register.

Pendency of criminal proceedings, alleging fabrication of false marriage certificate, cannot stand in the way permitting an application for correction in the register, in view of the manner in which the correction is effected in the original record.

2012 (4) KLT 623 (Jijomon v. Neezhoor Grama Panchayat).

4. Registration of Marriages (Common) Rules, 2008 (Kerala) Rr.9(1) & 13 — Passport is an authentic record regarding the name and other personal particulars of an individual.

5. Family Law - Marriage Registration Certificate.

Quashing of- TN Registration of Marriages Act, 2009 - Allegation that 4th respondent took petitioner to Sub Registrar’s office and made her sign, as if she is the witness to 4th respondent’s marriage. But 4th respondent claimed that petitioner and 4th respondent got married to each other. Petitioner alleged that no proof regarding manner in which alleged marriage conducted, no certificate of priest and no proof that alleged marriage took place within jurisdiction of Sub Registrar’s office. Allegation that entire transaction of alleged registration is unauthorized and to be cancelled. Thereafter Sub Registrar sent letter to petitioner stating that marriage is registered and registration can be cancelled in court only. Writ Petition - Whether marriage certificate as registered is a nullity and same is to be quashed as void ab initio. Held, disputed fact exists regarding manner in which petitioner appeared before Sub Registrar and signed documents. Such disputed questions cannot be gone into in Writ Petition. Petitioner’s father’s family card, mark sheet and driving licence found as documents filed before Sub Registrar’s office. Manner in which these documents filed before Sub Registrar to be gone into elaborate trial and not in writ proceedings. Letter issued by Sub Registrar informing petitioner to approach court to cancel registration certificate unwarranted and same is set aside. Court directs Sub Registrar to place entire papers/documents/records before District Registrar (Admin.) District Registrar (Admin.) to take up complaint of petitioner and conduct enquiry as to whether registration taken place fraudulently. If proved that registration fraudulent, necessary criminal action to be initiated and marriage certificate to be annulled. Petition disposed of.

(2014) 3 MLJ 863 (C.Sivagama Sundari v. Inspector General of Registration)
(2009) 2 MLJ (Cr) 607, AIR 1964 SC 962 referred.

6. Registration of Marriages (Common) Rules, 2008 (Kerala), Rule 6.

Marriage solemnized between two persons belonging to different religions can be registered under the provisions of the Rules. Circular to the effect that marriages solemnized between persons belonging to different religions or not registrable under the Rules is repugnant and contrary to the provisions contained in the Rules.
2012 (2) KLT 594 = ILR 2012 (2) Ker.463 = 2012 (2) KLJ 580 (Deepu Dev & Anr. v. State of Kerala & Anr.)

7. Registration of Marriages (Common) Rules 2008 (Kerala).

Whether registration under the rules will validate a marriage. Held, registration itself cannot be a proof of the validity of marriage. By virtue of registration under the Common Rules no marriage which is inherently invalid will not become validated in any manner.

8. Registration of Marriages (Common) Rules 2008 (Kerala) R.6

Marriage solemnized between 2 persons belonging to different religions can be registered under the rules Circular No. 63882/RC3/2010 /LSGD Dt. 28.2.11 is illegal.

2012 (2) KLT 594 (Deepu Dev & Anr. v. State of Kerala and Anr.).

2006 (1) KLT 791 (SC) (Seema v. Ashwani Kumar).

9. Registration of Marriages (common) Rules, 2008 (Kerala) Rule 6

Marriage between an Indian and a foreign national solemnized in the State of Kerala. Whether can be registered under the Rules. Held, rules does not contain any stipulation about nationality of the parties contracting the marriage. So long as marriage is solemnised in the State, Authorities are bound to register it, even if one of the party is a foreign national. Personal appearance of the parties to the marriage is not necessary for presentation of application for registration of marriage.

2012 (1) KLT 750(Najma v. Registrar General of Marriages)

10. Registration of Marriages (Common) Rules, 2008 (Kerala), R.10

Fact that wife was a minor at the time of marriage cannot disentitle parties from getting their marriage registered.

2013(2) KLTSN 66)(C.No.77) = 2013(2) KLJ 651 (Faseela v. State of Kerala).

Climate Change -- Impact on Human Rights

(By Justice A.K.Jayasankaran Nambiar, Judge, High Court of Kerala)

The phrase “Human Rights” is invariably used to refer to those inalienable rights that are conceded to an individual by society, so as to ensure his/her survival as a human being on planet earth. Unlike legally conferred rights, that owe their origin to socially accepted legal frameworks, a human right is one that inheres in every human from the time he/she commences life on earth. It was therefore that, when a re­affirmation of human rights was necessitated after the end of the second world war, the document that was published by the United Nations came to be called the Universal Declaration of Human Rights - it merely declared what was already known - that every human being possessed certain inalienable human rights. For, we the people of India, the affirmation of these rights is through the fundamental right to life, guaranteed by Art. 21 of the Constitution of India.

Our Courts have long recognised the existence of a right to clean environment as an integral facet of the right to life under Art. 21 of the Constitution. Further, our Constitution mandates that the State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country (Art.48-A) and that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures (Art.51-A). While we have had to grapple with the vexed issue of the extent of regulation that is to be imposed on economic activity, so as to strike a balance between the competing interests of economy and environment, the twin principles of “sustainable development” and “polluter pays” have occupied a pride of place in environmental litigation in our country. Our long-term vision is guided by the principle of inter-generational equity. We have, however, reached a stage where we can no longer view environmental issues as something that affects us as citizens of this country. We now need to think global - not only as to how our actions will affect living beings the world over, but also how the actions of others can be regulated to ensure our continued survival. Strategies now need to expand beyond territorial frontiers and envelop the whole world as one unit. Since the problems we face are global and affect us as citizens of the world, our solutions also need to be global, so as to offer solace to even those living outside the territorial confines of our country.

Of the myriad environmental problems that we face today, climate change, or global warming, is just one. It refers to the change in global or regional climate patterns over an extended period of time, ranging from decades to millions of years, and is attributed largely to the increased levels of atmospheric carbon dioxide that is produced by the use of fossil fuels. Scientists would tell us that the rate at which energy is received from the sun, and the rate at which it is lost to space, determine the equilibrium temperature and climate of earth. This energy is distributed around the globe by winds, ocean currents, and other mechanisms to affect the climates of different regions. Factors that shape climate are called forcing mechanisms and these can, in turn be of two types -internal and external. Internal forcing mechanisms are natural processes within the climate system itself eg., thermohaline circulation. External forcing mechanisms can be either natural or anthropogenic, the latter referring to human activities that affect the climate, and the subject of focus in this paper.

In his book “A New Green History of the World”, Clive Ponting encapsulates the essence of the problem that we face today, in the following words:

“Without greenhouse gases in the atmosphere to trap outgoing terrestrial infrared radiation the average temperature on earth would be about -18 degree Celsius and too cold for life. These gases, primarily carbon dioxide and methane, maintain the average temperature of the earth at about 15 degree Celsius. However, in the last 200 years, human activities have added extra quantities of these greenhouse gases - carbon dioxide, methane and nitrous oxide - and introduced new ones in the form of the various Chlorofluorocarbons (CFC’s). The effect of these changes has been to turn a vital life-sustaining mechanism into the world’s most threatening and potentially catastrophic environmental problem - global warming.”

Carbon Dioxide today accounts for about two-thirds of the total effect of greenhouse gas emissions. The excess carbon dioxide that we release into the atmosphere comes mainly from the burning of fossil fuels like coal, oil and natural gas. Deforestation and clearing of land also contribute to the release of carbon dioxide into the atmosphere since the cut trees are burnt to produce carbon dioxide, and lesser number of standing trees results in lesser absorption of carbon dioxide by the trees during photosynthesis. Similarly, methane gas is released into the atmosphere from paddy fields, where decaying animal and vegetable matter is sued as fertilizer, and from domesticated cattle that have bacteria in their guts, which release methane as a waste product. Termites feeding on decayed wood also produce methane as a by-product of digestion. Nitrous oxide is produced by vehicle engines as also by nitrate fertilizers. Although there is lesser concentration of methane and nitrous oxide in the atmosphere, when compared to carbon dioxide, together with CFC’s, they are more powerful as greenhouse gases and are more long lived and hence will remain in the atmosphere for longer periods.

Global efforts at tackling climate change through regulations took shape in 1988 when the UN Intergovernmental Panel on Climate Change (IPCC) was established to provide the world with a clear scientific view on the current state of knowledge in climate change and its potential environmental and socio-economic impacts. As an intergovernmental body, membership of the IPCC is open to all member countries of the United Nations (UN) and the World Meteorological Organization (WMO). Currently, about 195 countries are members of the IPCC. The reports provided by the IPCC, which has significant scientific inputs, enable Governments to take policy decisions with regard to Climate Change.

At the Rio Earth Summit in 1992, one of the three conventions that were adopted by the participating countries was the United Nations Framework Convention on Climate Change (UNFCCC). It came into force with effect from 21.03.1994 and has been ratified by 197 countries. The principle objective of the convention is the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. It stipulated that such a level should be achieved within a time frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened, and to enable economic development to proceed in a sustainable manner. The most notable feature of the convention was that it put the onus on developed countries to lead the way since they were the source of most past and current greenhouse gas emissions. The industrialized countries took the lead and the efforts taken ensured that emissions were reduced to the 1990 levels by the year 2000. The convention also mandated that the industrialized countries would support climate change activities in developing countries by providing financial support for action on climate change. A system of grants and loans has been set up through the convention and is managed by the Global Environment Facility. Industrialized countries also agreed to share technology with less advanced nations. Recognizing the need for economic development in poorer countries, the convention accepted that the share of greenhouse gas emissions produced by developing nations would grow in the following years.

The Kyoto protocol was adopted in Kyoto, Japan on 11.12.1997 and, owing to a complex ratification process, came into force only on 16.02.2005. The agreement is noteworthy because it commits its parties by setting internationally binding emission reduction targets, and a heavier burden on developed nations under the principle of “common but differentiated responsibilities”. On 8.12.2012, at Doha, the Doha Amendment to the Kyoto Protocol was adopted which prescribed new commitments for the developed nations for the period from 1st January 2013 to 31st December 2020. The commitments envisage a reduction of Greenhouse Gas emissions by developed nations by at least 18 % below 1990 levels in the eight-year period from 2013 to 2020.

Quite Recently, the Paris Agreement of 2015 saw all nations come together to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so. The central aim of the agreement is to strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below two degree Celsius above pre-industrial levels, and to pursue efforts to limit the temperature increase even further to 1.5 degree Celsius. India became a signatory to this agreement on 2nd October, 2016.

While it may be a fact that countries have come together to address the problem of climate change and have, indeed, drawn up treaties, protocols and agreements that announce their decisions and plans for the future, the legal enforceability of the obligations and duties expected of the signatory States has always been a matter of concern. Much depends upon the final words used in an agreement. In this context, one finds a brilliant analysis of the text of the Paris Agreement of 2015 in an article titled “The 2015 Paris Agreement: Interplay between Hard, Soft and Non-Obligations” by Lavanya Rajamani, Professor, Centre for Policy Research, New Delhi, who was part of the UNFCCC Secretariat core drafting and Advisory Team at the Paris negotiations. She concludes her paper by stating “The Paris Agreement is arguably an exemplar of the ‘brave new world of international law’ in which forms of law and lawmaking have ‘mutated into fascinating hybrid forms. The Paris Agreement, a product of a deeply discordant political context, rife with fundamental and seemingly irresolvable differences between Parties, is an unusual Agreement. It contains a carefully calibrated mix of hard, soft and non-obligations, the boundaries between which are blurred. Each of these types of obligations plays a distinct and valuable role. The ‘hard obligations’ of conduct in mitigation and finance, in conjunction with a rigorous oversight system, form the core of the Paris Agreement. The ‘soft obligations’ peppered throughout the instrument in relation to mitigation, adaptation and means of implementation create good faith expectations of Parties. And the non-obligations, albeit unusual in operational provisions of treaties, provide valuable context, construct narratives and offer mutual reassurances. This delicate and unusual mix of obligations (hard and soft) and non-obligations—years in the making— was crucial in delivering the Paris Agreement. It remains to be seen if this mix of obligations will deliver us from climate change.”

International Treaties and Agreements need to be legally enforceable throughout the world, and every signatory country ought to be made legally obliged to adhere to its respective commitment. When it comes to matters that have a direct bearing on human rights, commitments need to be in the nature of “Hard Obligations”. We are far too deep in the quagmire of global warming to find solace in “soft obligations” and “non-obligations” in International agreements.

India’s efforts at tackling the problem through domestic measures began in 2006 with the laying down of the National Environment Policy 2006, which focuses on sustainable development alongside environmental concerns. We have adopted a National Action Plan on Climate Change (NAPCC) and the policy initiatives of the Central Government are supplemented by the actions of the State Governments, NGO’s and initiatives of the private sector and other stakeholders. The State Governments have put in place their own action plans on climate change (SAPCC). Action has also been taken through amending various statutes that regulate the use of natural resources so as to ensure the efficient use of energy. Fiscal measures such as imposition of cesses and duties on certain types of fuel, as also higher rates of tax on fossil fuels, have also been introduced so as to force a conversion to alternate and cleaner energy. .Afforestation and Reforestation have been actively pursued and we have been successful in enhancing the forest cover in our country’, although we still have some distance to go before we reach our goal of bringing approximately 33% of the land area under forest cover.

Conclusion

The world community has come together to tackle the problem of global warming and we need to ensure that the momentum is kept up in the coming years. Commitments by individual nations, in International Agreements, need to be recorded in unambiguous terms and legally enforceable. We need to realize that the problem, if left unchecked, will have catastrophic consequences for the human species. We are told that mid-2016 was the warmest period in the history of the earth and that should be catalyst enough to increase our efforts in this area. Our actions need to be concerted and designed to ensure that this basic human right - to an environment that is conducive to human life on earth - is respected and guaranteed to all of mankind, across generations.

Ground Water -- Legal Control

(By Jose Vikas Yesudasan, Assistant Manager (Legal), The South Indian Bank Ltd.)

Introduction

Ground water is one of the indispensable sources of drinking water.1 But now-a-days, people extract ground water for not only drinking purpose but also commercial one. In fact, ground water is getting depleted and contaminated, thanks to its indiscriminate exploitation for the latter purpose. This precarious situation calls for a perusal and analysis of the existing legal control of ground water.

a) Statutory control

With the emergence of privatization and globalization, over-exploitation of ground water by the multinationals is posing a threat to the quantity of ground water, available for the common man’s consumption. Apprehending that the unprecedented over-exploitation of ground water will pave the way for the exhaustion and gradual extinction of ground water, the Kerala Government enacted the Kerala Ground Water (Control and Regulation) Act, 2002 for the regulation of its exploitation.

The Kerala Ground Water (Control and Regulation) Act, 2002 provides for the constitution of the State Ground Water Authority, comprising members like an expert in Water Resources, a member belonging to scheduled caste/scheduled tribe, a woman, a public man, an environmentalist, a member of Municipal Council, Secretaries of Departments of Water Resources, Finance and Local Self-government as well as the Director of Ground Water Department2. Based upon the recommendation of this authority, representing multiple interests, the Government may notify areas for the regulation of ground water consumption3. Any person, who is desirous of digging a well or converting an existing well into a pumping well or registering an existing well in the notified area, is expected to obtain a permit from the authority4. The latter will issue a permit, if it does not offend public interest5. But, except, in the case of registration of the existing wells, the permit shall be deemed to have been granted to the applicant, if the authority procrastinates for more than ninety days6. This implies that the applicant will be blessed with a permit, even if it infringes public interest, if the application is kept pending for more than ninety days after its receipt. The Act proposes to protect public drinking water resources by requiring persons to get permit for digging wells within thirty metres from such resources7. But in this case also, if the decision of the authority is not communicated to the applicant within ninety days from the date of the application for permission, it shall be deemed to have been granted to the applicant8. To make matters worse, the gravity of the object of the Act appears to be diluted by the provision for penalty, which ranges from five hundred to two thousand rupees9 only. This nominal sum will go on tempting multi-nationals to ascend the ladder of prosperity by violating the Act and escaping its clutches through the loophole of petty penalty.

b) Judicial Control

F.K.Hussain v. Union of India10 which was the first important case, pertaining to the regulation of ground water exploitation. In this case, the Lakshadweep administration evolved a scheme to augment water supply by extracting water from wells. The petitioner smelled a rat and wanted to smother it, as it will lead to the intrusion of salt water into the ground water of the area and upset the fresh water equilibrium there. The Kerala High Court held that the contamination of potable water is a breach of the fundamental right to life under Article 21 of the Constitution, because the right to life does not only mean mere animal existence but also has many dimensions attached to it. The right to sweet water and right to free air are the attributes of the right to life, for these are the basic elements, which sustain life itself. Hence, the administrative agency cannot be permitted to function in such a manner as to make inroads into the fundamental right under Article 21. The agency should exploit other alternatives like rain water harvesting, reverse osmosis and desalination for augmenting the water supply of the region. This is because human interference with nature should not exceed its capacity for regeneration.

InM.C. Mehta v. Union of India11 the question for consideration was the impact of mining on the ground water table. The ground water scenario within 5 kilometres of Delhi-Haryana border and Aravalli hills was highly deplorable, thanks to illegal and indiscriminate mining. The mining agency did not take measures to pump back the mined water into the abandoned pits to recharge the ground water, thereby catalyzing depletion of ground water. As a consequence, the local people found themselves between the devil and the deep sea. The Supreme Court, therefore directed the monitoring committee to come to the rescue of these people by lending them a helping hand.

In Ashok Kademani And Anr.v. State of Karnataka12 the petitioners were agriculturists who used borewells in their properties for agricultural purposes. However, the Municipal Council directed the petitioners to hand over the borewells to it under the pretext that bore wells in and around the petitioners’ lands had dried. The Karnataka High Court held that although there is a provision in the municipal legislation to transfer immovable property to the Municipality on payment of compensation, this does not empower the Municipality to take over the borewells of the petitioners. The petitioners have a fundamental right to life, which includes the right to all those aspects of life, which make a man’s life meaningful, complete and worth living. So, they are entitled to dig borewells for drawing water for drinking, cultivation etc. It does not become the Municipality to poke its dirty nose into their right and trample under foot the same.

In Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat13 the usage of ground water by Hindustan Coca-Cola in Perumatty Grama Panchayat was scrutinized by Kerala High Court. The local people complained to the panchayat about the over-exploitation of ground water by the company. So the Panchayat cancelled the latter’s licence. The Single Judge of Kerala High Court held that ground water belongs to the public, as per public trust doctrine. So the State and its instrumentalities should act as trustees of this great wealth. The inaction of the State in this regard is tantamount to infringement of the right to life guaranteed under Article 21 of the Constitution. Hence, the Single Judge restrained the company from draining ground water for its use. However, strangely enough, the Division Bench of the court threw cold water on the bubbling judicial dynamism of the Single Judge and questioned the justification for the Panchayat’s action and decided in favour of the company.

In Howrah Ganatantrik Nagarik Samithy & Others v. State of West Bengal14 the Calcutta High Court was confronted with the problem of water pollution, resulting from excessive use of ground water by soft drink companies. However, the court could not but appreciate the steps, taken by the companies to recharge ground water, but added that there must be a State agency to monitor the same.

In John v. Kalamassery Municipality15,John dug a well in his private property and started Aqua Line Fresh to supply water to different institutions in the Edappally village. The unregulated extraction of ground water by him led to acute water scarcity in the surrounding region. According to the Kerala Ground Water (Control and Regulation) Act, 2002, people have the right to draw ground water from their wells, provided they are registered. But the petitioner has not done this registration exercise. The court opined that of the two usages of water, it is the maintenance of the available resource that is more important than its mindless exploitation, thereby echoing the Stockholm Declaration, 197216.

In Pepsico India Holdings Pvt. Ltd. v. State of Kerala and Ors17,the petitioner set up his industry in Palghat after taking the required permission from the concerned State authority and the Panchayat. But the Panchayat refused to renew the licence of the company on the ground that the company had been extracting too much ground water, thereby causing water shortage in the nearby region. The Kerala High Court decided in favour of the petitioner, but could not give a blind eye to the concern of the panchayat for the ground water protection. So, it permitted the Panchayat to bring the problem to the notice of the State Ground Water Authority.

Conclusions and Suggestions

The fact that the Kerala Ground Water (Control and Regulation) Act, 2002 provides for the constitution of the State Ground Water Authority, representing multiple interests, is laudable. But it is doubtful whether the voice of the sole woman sans any qualification, experience or expertise will be heeded by the other well-equipped members. Besides, the deeming provisions relating to the grant of permit and the provision incorporating petty penalty require reconsideration for helping the Act materialize its purpose. It is gratifying to note that the judiciary except the Division Bench of the Kerala High Court in Hindustan Coca-Cola Beverages (P) Ltd. v. Perumatty Grama Panchayat has gone a long way in adding flesh and blood to the statutory skeleton by widening the horizon of Article 21 of the Constitution, holding aloft and applying the principles of public trust and inter-generational equity, embedded in international documents like the Stockholm Declaration.

FootNote:

1. See P.B. Sahasranaman, Handbook of Environmental Law, Oxford University Press, New Delhi, 2009, P.145.

2. The Kerala Ground Water (Control and Regulation) Act, 2002, Section 3.

3. Id., Section 6.

4.Id., Sections 7(1), 8(1).

5. Id. , Sections 7(4), 8(3).

6 . Id., Section 7(6).

7. Id., Section 10.

8.    Id. , Section 10(3), Proviso.

9.    Id. , Section 21.

10.  AIR 1990 Ker.321.

11.  2004(3) KLT SN 69 (C.No.97) SC = AIR 2004 SC 4016.

12.  AIR 2005 Kant.124.

13.  2005 (2) KLT 554.

14.  2005 (2) CHN 596.

15.  2006 (2) KLT 386.

16.  See Principle 2.

17.  2007(2) KLT 835.

A Short Historical Background for Passing of Indian Succession (Amendment) Act 26 of 2002 under which the Necessity of Taking of Probate or Letters of Administration with copy of Will Annexed, for Christians in the Whole of India was taken away or Obliterated,
Under Section 213 of Indian Succession Act, 1925

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1. Section 213 of Indian Succession Act as it stood prior to amendment read as follows:-

213. Right as executor or legatee when established.-- (1) No right as executor or legatee can be established in any court of justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.

This section shall not apply in the case of Wills made by Indian Christians and shall only apply.

i) In the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of Section 57, and

ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the (ordinary original civil jurisdiction) the High Courts at Calcutta, Madras and Bombay and where such wills are made outside those limits, inso far as they relate to immovable property situated within those limits].

2. So Christians were not exempted from the applicability of Section 213.
AIR 1982 A.P. 410 at 413 (Tynala Musalayya v. J. Moharaj)

3. While so the amendment to Indian Succession Act was enacted by Kerala State by Indian Succession (Kerala Amendment) Act 1 of 1997 which came into effect from 14.3.1997.

4. Based on this Kerala Amendment, the Kerala High Court in the decision reported in AIR 1998 Ker.160 = 1998 (1) KLJ 460 (Kalari Thressiamma v. Kathidukkanamikal Joseph) held that Christians of Kerala do not require to get their wills probated.

5. But the Amended Act 1 of 1997 (Kerala did not exempt from Section 213(1) to wills executed by Christians of Kerala involving property outside Kerala. So in such Cases they had to take Probate or Letters of Administration for establishing their rights.

6. Thereafter a Christian by name Clarence Pais filed a suit with regard to a flat in Delhi. He was living in Kerala. His aunt had made him as a legatee under her will of 1986 with regard to her flat in Delhi. His aunt died in 1991. He approached the Housing Society to hand over the flat to him which he got by the will of his aunt. Housing society insisted, (obviously to avoid unnecessary disputes and complications) that Clarence Pais should obtain an order from a competent Court. He took appropriate action in the court to get an order. But he was not able to get any relief from court, on the ground that he was bound by the restrictions in Section 213.

7. Thereupon he challenged the constitutional validity of S. 213 in Supreme Court, on the ground of discrimination among Christians (as in Kerala and outside Kerala). But the Supreme Court did not give him the relief on historical reasons. The case is reported in 2001 (1) KLT 860 (SC) = AIR 2001 SC 1151 at 1152 = (2001) 4 SCC 325 (Clarence Pais v. Union of India).

8. However, Christian community made an uproar against this and the Government of India conceded the demand made by the Christian community and enacted Indian Succession (Amendment) Act 26 of 2002 which came into effect from 27.5.2002; by which Section 213(b)(2) was made exemplary to Christians also as in the case of Mohammedans, by inserting the words ‘or Christians’. This is the historical background how the Christians in India get immunity for taking probate or L.O.A.

9. But the proviso of S.213 still continues to apply in the case of wills made by Buddhists, Sikhs or Jaina, if such wills are of classes mentioned in Section 57. Section 57 reads as follows:

57. Application of certain provisions of Part to a class of Wills made by Hindus, etc. -The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply -

a) to all Wills and Codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant - Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay ; and

b) to all such Wills and Codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits; and

c) to all Wills and Codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):

Provided that marriage shall not revoke any such Will or Codicil.

10. Though the Law Commission presided by His Lordship Dr.AR.Lakshmanan, in its 209th report in 2008 had recommended the deletion of Section 213 itself, the Ministry of Law and Justice has not still thought it so far.