The  IP- Fashion Imbroglio : Issues and Challenges

(By Dr.Raju Narayana Swamy, IAS)

Introduction

Fashion has been defined as “everything that is the current trend in a person’s appearance and attire, particularly in clothing, footwear and accessories”. It is more than just clothes, jewellery and shoes, but is a form of expression.To quote Ralph Lauren himself,^[1] “fashion is not necessarily about labels.  It’s not about brands.  It’s about somethingelse that comes from within you”.

IP and fashion are inextricably linked.  In fact, copyright and related rights, trademarks, patents, utility models, registered and unregistered designs, domain names, geographical indications, trade secrets, know-how etc., can all be used to protect fashion designs. In the Indian context, special mention should be made of the Copyright Act 1957, Industrial Designs Act 2000 and Trademark Act 1999.  To be more specific, sketch design and colour combination can be protected under the Copyright Act whereas article design can be protected under the Designs Act.

Legal provisions

No discussion on fashion and IP can be complete without a reference to Section 2(d)of the Designs Act and Section 15 of the Copyright Act.  The former defines designs to mean “only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined which in the finished article appeals to and is judged by the eye”.  It is noteworthy in this context that the Designs Act does not incorporate a specific definition of “fashion design”. The Act does not protect the entire garment, rather it only protects individual aspects like shape, pattern, colour etc., of the garment.  The need of the hour is a term that should facilitate the overall appearance of a particular piece of apparel rather than the current definition which protects each aspect of a garment individually.  As regards the latter, it stipulates that

(1) Copyright shall not subsist in any design which is registered under the Designs Act.  Thus designs that are capable of being registered under the Designs Act, 2000 and are registered according to the Act’s provisions are exclusively protected under the Designs Act. It needs to be mentioned here that for a design to be protected under the Designs Act, it should satisfy the conditions as laid down in Section 4 of the said Act.

(2) Copyright in any design, which is capable of being registered under the Designs Act but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or with his license, by any other person.  It also needs to be mentioned here that designs that are not eligible for registration under the Designs Act, 2000 because they are original artistic works are protected under the Copyright Act, 1957.

Special mention must be made in this regard of the case Ritika Private Limited v. Biba Apparels Private Limited in which a boutique apparel designer firm that was  the first to copyright a design which was commercially in use by the defendant sought an injunction. The Court ruled in favour of the defendant pointing out that the copyright was given under the Copyright Act of 1957 which states that if a design is reproduced more than fifty times, the designer loses his copyright on the work.  To be more specific, the Court looked into the legislative perspective and made a clear inference that the protection afforded to a work that is commercial in nature is less than that granted to a work of pure art and that they are not to be compared.

The Microfibres Case

A landmark case in the annals of fashion and IP is the Microfibres case ^[ii] wherein the Delhi High Court endeavoured to formulate the Indian legal stance on copyright protection for fashion designs.  In this case Microfibres, an American corporation involved in the business of selling and exporting upholstery materials sued the defendant contending that the Berne and Universal Copyright Conventions provided copyright protection to its artistic works in India and that the defendant’s textiles bear works that were identical or colourable imitations of the originals.  In fact, the claim of the plaintiff was that their work constituted original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957 which would entitle them to enjoy copyright protection.  The defendants argued that the plaintiff’s artistic works were actually designs and fell within the scope of the Designs Act 2000.  To fortify their arguments, they pointed out that the plaintiff had registered some of the upholstery designs in UK under the local Designs Act and that the Indian Design Office had confirmed in writing that the subject works are registrable.

The Court accepted the argument that the only category in which fabric designs could potentially fit under S.2(c) of artistic creation is ‘painting’. The Court made a distinction between paintings in the meaning of M.F.Hussain’s works and fabric patterns holding that only the former may be classified as a “painting” under the concept of artistic work. The comparison to M.F.Hussain’s painting in the present case would be otiose.  In a design, the characteristics are merely ornamental and are applied to another object, as opposed to an artistic painting which has its own existence.  The goal with which such arrangements were undertaken in the present case (viz) to employ them in a commercial setting must not be overlooked.  Establishing a sixty year monopoly (as envisaged in Copyright Act) on industrial and commercial designs will render the law of designs obsolete and hamper competition, nay industrial innovation.

Given that a particular design had been manufactured more than fifty times in Microfibres, the Division Bench dismissed the appeals as frivolous and upheld the Single Judge’s decision that any copyright in the designs was abandoned upon such commercial production of the articles to which the design had been applied.

Rajesh Masrani v. Tahiliani Design(2008 (4) KLT OnLine 1142 (Del.))

This is a case which has a significant impact on the fashion industry. In this case the defendant asserted that the plaintiff cannot claim protection to their designs as the designs were not registered as per the Copyright Act, 1957. The Court noted that it is well established law that registration of the work is not mandatory.  The registration u/S.44 of the Act is not a prerequisite to pursuing remedies such as seeking an injunction to prevent infringement as well as damages.  It is merely there to provide prima facie verification of the details of the right as mentioned in Section 48. The Court also observed that the plaintiff’s work is an original artistic work entitled to protection under Section 2(c) of the Copyright Act and that as it cannot be registered under the Designs Act, the provisions of Section 15(2) of the Copyright Act do not apply.  The Court held that the plaintiff’s work is at least inventive and unique, if not novel and that the respondent had copied the work, which should not be allowed.  It was categorically held that registration is not necessary for claiming protection to designs under the Copyright Act.

Trademark protection for Fashion Design

In India, the Designs Act, 2000 under Section 2(d) while defining “design” expressly excludes the trademark. To put it a bit differently, a fashion design which is a trademark cannot be protection under the Designs Act.  But the judgment rendered by the Delhi High Court inMicolube India Ltd. v. Rakesh Kumar Trading as Saurabh Industries & Ors. ^[iii] has expanded the ambit of trademark protection for design.  The Full Bench by 2:1 majority held that the plaintiff would be  entitled  to institute an action of passing off in respect of a design used by him as a trademark provided the action contains the necessary ingredients to maintain such a proceeding.  The Court observed that: “post registration under Section 11 of the Designs Act there can be no limitation on its use as a trademark by the registrant of the design. The reason being : the use of a registered design as a trademark is not provided as a ground for its cancellation under Section 19 of the Designs Act.”

Thus a fashion design registered under the Designs Act not only gets protection under the Act but can also be protected by instituting an action for passing off provided that design was being used as a trademark post-registration.

Fashion Design & Piracy

Fashion design is the application of design and aesthetics beauty to the items of fashion.  Modern fashion design is divided into three basic categories: (1) haute couture, (2) ready-to-wear (Pret-a-Porter) and (3) mass market.  A couture garment is made to order for an individual customer from high quality, expensive fabric, seen with extreme attention to detail and finish, using time consuming techniques.  Ready- to-wear collections on the other hand are not made for individual customers, but are made in small quantities to guarantee exclusivity.  Both haute couture and ready to wear collections are presented in international catwalks. The Mass Market on the contrary caters for a wide range of customers using cheaper fabrics and simpler production techniques.

Piracy is the act of duplicating without permission.Unauthorized replication of original fashion designs is known as fashion design piracy.It can be divided into two broad categories-knock-offs and counterfeit. Knock-offs do not have the original company’s logo or mark on the product. To put it a bit differently, they are exact replicas of another designer’s style, but without IP infringement. This is in sharp contrast to counterfeiting which involves making replicas with the same brand name as original commodities. To be true to facts, there are two forms of counterfeiting in fashion industry: deceptive and non-deceptive. Deceptive counterfeiting occurs when a consumer is uninformed that he or she is purchasing a false or fraudulent object.^[v]  Non deceptive counterfeiting occurs when a customer buys a duplicate of the actual brand intentionally and with complete awareness.^[vi]  In our image-based buying society where shoppers seek the optimum mix of trend and affordability, we have the perfect environment for counterfeiting.  No wonder why counterfeiters are mostly targeting major fashion houses-Gucci, Prada and Adidas, to name few.

The Piracy Paradox

The “Piracy Paradox” was coined by Kal Raustiala and Christopher Sprigman to describe the idea that copying leads to new creations.^[vii]  Their contention is that imitation not only coexists with creativity but also encourages it. They point out the ‘angelic’ qualities of piracy and substantiate that piracy in fashion design may prove more a boon than a bane.Elucidating it further they write:-

“The absence of IPR protection for creative designs and the regime of free design appropriation speeds diffusion and induces more rapid obsolescence of fashion designs…  The fashion cycle is driven faster....by widespread design copying because copying erodes the positional qualities of fashion goods.  Designers in turn respond to this obsolescence with new designs.  In short, piracy paradoxically benefits designers by inducing more rapid turnover and additional sales”.

However the paradox is a weak argument for the endless duplication that occurs in the fashion apparel sector all over the globe.  In fact the paradox has been challenged especially by Hemphill and Suk (2009) who highlight that there are various forms of copying in the fashion industry - ranging from actual imitation to borrowing, remixing and reinterpreting.  Copying someone else’s work is unethical and theft is morally wrong in every aspect of law.  To put it a bit differently, the paradox runs counter to the notion of uniqueness, which is the driving force behind the fashion industry.  Another fundamental flow in the paradox is that it is predicated on the ‘trickle-down effect’ which assumes that fashion designs are copied from the top. This is erroneous as local enterprises which employ indigenous designers are the hardest hit by counterfeits.  Due to shortage of finances, these employees are unable to generate new designs in accordance with the Piracy Paradox.  Thus the Paradox overlooks the fact that plagiarism is a two-way street.

Claiming protection for Fashion Designs under the Indian Law: Issues and Challenges

          Claiming protection for fashion designs under the Indian law is not an easy process.  First, to claim protection under the Copyright Act, the work should qualify as an original artistic work (which is dealt with u/S.2(c)). As regards the Designs Act, it should fall under the category dealt u/S.2(d) of the Act. Apart from it, a design to get registration and consequently to get protection under the Designs Act must satisfy the following conditions as well:

1.   It must be new or original

2.   It must not have been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the date of filing for registration.

3.   It must be significantly distinguishable from known designs or combination of known designs

4.   It must not comprise or contain scandalous or obscene matter.

Under the Act, the proprietor (as explained in Section 2(j)) of a registered design gets copyright in the design which means the exclusive right to apply the design to any article in any class in which the design is registered.  Thus the Act affords protection not in a particular article but against a class of articles as enumerated in Schedule III of the Designs Rules, 2001. Goods manufactured by the fashion designers may fall under the following classes:-

(1)  Class 2: Articles of clothing and haberdashery

(2)  Class 3: Trade goods, cases, parasols and personal belongings, not elsewhere specified

(3)  Class 5: Textile piece-goods, artificial and natural sheet material.

(4)  Class 10: Clocks and watches and other measuring instruments, checking and signaling instruments

(5)  Class 11: Articles of adornment.

The overlapping between Designs Act and Copyright Act however has an adverse effect with regard to the protection of fashion designs.

It is also worth mentioning here that in the absence of registration the design law provides no protection and that the registration process is not only expensive but also time consuming. In India, the entire design registration procedure (from filling an application to receiving a certificate of registration) takes roughly 10 to 12 months.  This is troublesome because a garment’s anticipated life in a designer store is limited to one season or 3-4 months.^[viii]  In this situation, a designer is left with only one option-to apply for design registration well ahead of the anticipated date of market debut of his works. This leads to a new challenge (viz) maintaining the secrecy behind design elements. Moreover, once the registered design reaches the consumer market, the designer may discover that the design is unappreciated, rendering the entire design registration worthless.  It also needs to be mentioned here that though the Designs Act provides for recovery of damages vis-a-vis infringement of registered designs, the amount of money that can be collected is minimal (i.e.) not exceeding ` 50,000/-.  The grandeur associated with couture designs worth lakhs of rupees is mocked by this damage barrier.

 Fashion designers who have not registered their designs are unable to seek damages and injunction to prevent unauthorized copying of their designs.  Needless to say, in an era of fast-paced fashion sector development, where design houses release new collections of fashion goods on a regular basis-usually every season-fashion designers require automatic and instant protection for their designs that is not dependent on registration.^[ix]   It is here that the Indian law falters. Thus the Indian law denies designers the opportunity to test their unique interventions in the market, observe how they are received and then decide whether or not the design is worthy of registration.

The International Scenario

In comparison to the Designs Act of India, the EU’s 2002 Regulation (Council Regulation(EC) No.6/2002 of 12 December 2001 on Community Designs), the UK’s CDPA (Copyright, Designs and Patents Act) and the US’s ID3PA and IDPA (Innovative Design Protection and Piracy Prevention Act of 2011 and the Innovative Design Protection Act of 2012) establish an effective regime for the protection of the fashion design industry by providing protection against unregistered design copying. In fact, unregistered design is the real innovation of European Design Right.^[x]  The most vivid example regarding unregistered design protection is Karen Millen v. Dunnes Stores.^[xi]

(a) The EU context

           In the EU, industrial design rights are provided at both the Community level by virtue of the Community design and at the national level under individual national laws.  A community design is a unitary industrial designs right that has equal effect across the EU and regulated by the 2002 Regulation.The 2002 Regulation includes provisions relating to “registered community design protection” and “unregistered design protection”.  Although unregistered community design protection is shorter (three years) and limited in comparison to the term of the registered community design protection (twenty five years) it is more suitable to those industries which are producing large numbers of possibly short -lived designs over short periods of time, particularly fashion industry.

(b) The UK scenario

Fashion designers in the UK are protected from the evil of piracy as they may institute a suit for infringement of their design right and may get relief by way of damages, injunctions, accounts or otherwise under the CDPA without having to go through the pain of registration of design.  It is worth mentioning here that an unregistered design right is limited in nature.  It does not allow monopoly rights but the owner is protected from copying of his/her design.

(c)  France and Italy

          France has long considered fashion design to be a protectable form of expression.  It first granted protection to fashion design as an applied art under the Copyright Act of 1793 before extending protection in the Copyright Act of 1909 to patterns and other nonfunctional aspects.  It explicitly specifies fashion designs in listing protected works under Copyright Law. French copyright law grants moral and patrimonial rights to authors.  The former affirm the designer’s rights of integrity and attribution, extend to his or her heirs and do not expire. In fact, under Section L 121-9 of the French Intellectual Property Code, the designer has four main categories of moral rights: the droit de paternite, the droit au respect de l integrite de l ceuvre, the droit de divulgation, the droit de repentir ou de retrait. The latter grant the holder the exclusive rights of reproduction, distribution and financial returns from the sale of the design.

Under French Law, fashion designs receive protection upon creation as opposed to the laws of the European Community where rights attach at publication or registration.

Mention must be made here of the suit filed by Yves Saint Laurent against Ralph Lauren for infringement based upon moral and patrimonial rights, stemming from a haute couture dinner – jacket dress featured on a 1992 runway.^[xii] The Court found that the Ralph Lauren ready-to-wear version was so strikingly similar that an ordinary customer would not be able to tell the difference.  The striking similarly infringed upon the moral and patrimonial rights of Yves Saint Laurent as the right of attribution and rights of reproduction, distribution and financial returns were violated.

Like France, Italian fashion has a rich history and reputation for luxury. Copyright protection in Italy comes automatically with creation of the work. Under Italian copyright law, “works of industrial design displaying creative character and per se artistic value” are protected.^[xiii]   Ancillary to its statutory protections, Italy has established the Jury of Design, an independent body that determines whether a design is worthy of protection.^[xiv]  It is comprised of ten experts, jurists, designers, marketing experts and entrepreneurs. Though not binding, decisions of the Jury of Design are largely respected by both the parties.

(d) The US situation

           The US legislations are audacious attempts to protect fashion designs exclusively and facilitate increased design innovation and dissuading of knock offs.

Impact of technology on the fashion -- IP synergy

In New York, Intel partnered with numerous designers including Erin Fetherston,
Prabal Guning and Band of Outsiders to live broadcast their shows in virtual reality.  Similarly the London- based fast fashion retailer Topshop provided shoppers with headsets enabling them to see its catwalk show in real-time through a 3D virtual world.  Meanwhile designer Rebecca Minkoff turned to augmented reality via a partnership with shopping app Zeekit which allowed viewers to upload a picture of themselves to see what they would look like in their favourite items following the show. However one of the most interesting innovations came in mixed reality space. This time it was on creating a experience layed over the real world through holograms.This was used on a runway by the legendary Alexander Mc Queen when a hologram version of Kate Moss modeled a dramatic organza gown. Holograms have recently appeared in the fashion shows of Diesel, Guess and Ralph Lauren creating optical illusions and taking the fashion-technology relationship to the next level.

But the synergy does not stop there. In a fashion show in Milan, luxury designers Dolce and Gabbana did not trot out handbags on the arms of humans.  Instead drones did the heavy lifting, emerging from backstage.

All these raise innumerable questions on the fashion--IP law front. For instance, can holograms and drones be considered performers? Who is the author of the collective work created by artificial intelligence? These questions are to be viewed in the backdrop of the fact that traditionally the requirement of originality has been linked to the physical person of the author. To put it a bit differently, machines and AI seem to be excluded from the notion of authorship.  However this does not mean that algorithmic artworks cannot afford copyright protection as long as human choices are involved.  These questions assume all the more importance as rapid technological progress has exacerbated the inadequacy of IPRs against plagiarism. Introducing a separate sui generis protection for Al-generated works is perhaps the need of the hour.

Conclusion       

Ralph Lauren once said, “I do not design clothes.  I design dreams”.Fashion law incor-porates the legal questions inherent to the design, manufacture, distribution, marketingand promotion of all types of fashion products. Whether the subject is haute couture or ordinary clothing, this branch of law encompasses a wide variety of legal issues that accompany a fashion item throughout its lifecycle. Contract law, company law, tax law, international trade and customs law are of fundamental importance in defining the new area of law. But the most important of them all is IP law. For instance one cannot ignore the discussions related to the manipulation of photographed images made possible by programs such as Photoshop. Expressions through digital technology raise questions regarding transparency, veracity of commercial communications and consumer’s freedom of choice as new technologies could facilitate the sale of counterfeit goods. Needless to say, fashion is going through a metamorphosis. Even catwalks which have traditionally represented private sales channels for select wealthy customers have taken on a new function-entertaining the crowd rather than sale of chic clothing.  As the industry reinvents itself post the pandemic, the new frontiers thereof revamp, revitalize and rejuvenate the debate on the appropriateness of rights and remedies provided by IP law in this ever emerging field.

References

1.Raustiala, K. and Springman,C./ “ The Knodioff Economy, How imitation sparks Innovation”
(Oxford University Press, Ist Edition, 2012).

2.Aditya Reddy & Goutham Shivshankar, Legal Protection for Fashion Design, 3 Indian J.Intell.Prop.L.85 (2010).

3.Pankaj Kumar, Fashion and Related Intellectual Property Rights Issues, llS  (Deemed to be University 84-95 (2019).

4.Hitton B; Choi C.J & Chen S. “The Ethics of counterfeiting in the Fashion Industry: Quality,
credence and profit Issues”, Journal of Business Ethics, 128,324-330(2004).

5.Cassandra Elrod, “ The Domino Effect: How Inadequate Intellectual Property Rights in the Fashion Industry Affect Global Sustainability”, Indiana Journal of Global Legal Studies (2017).

6.Alexandra Manfredi, Haute copyright Tailoring copyright protection to High-Profile Fashion Designs, 21 Cardozo J. Int’l & Comp.L.111(2012).

7. Nicole Giambarrese, “ The Look for less.  A survey of Intellectual Property Protections in the Fashion Industry”. 26 Touro L.Rev.243(2010).

8. Kimberly A.Harchuk, Fashion Design Protection:  The Eternal Plight of the “soft sculpture”, 4 Akron Intellectual property Law, 73(2010).

9.Tina Martin, “Fashion Law Needs Custom Tailored Protection for Designs”, 48 U.Balt.L.REV.453(2019).

10.Arianne Vanessa Josephine T.Jimnez, “ A Sui Genris System of Protection for  Exceptionally Original Fashion Designs”, 36 Loy.L.A.Ent, L.Rev,101(2016).

11.Emily S.Day, “Double Edged Scissors: Legal Protection for Fashion Designs”,  86 N.C.L.Rev.237, 2007-2008.

12.Hetherington S.L, “ Fashion Runaways are No Longer the public Domain:  Applying the common Law Right of Publicity to Haute Couture Fashion Design, “Hastings Comm & Ent I-J., 24,P-43(2001).

13.Antikainen,M, “ Copyright Protection and AI-Generated Works – A fight we have already lost?”, Luigi Carlo Ubertazzi (ed), AIDA: Annali italiani del diritto d’autore, della culture e dello
spettacolo XXVII  Giuffre Francis Lefebvre (2018).

14.Asmah, J, “ Stepping outside the box: Traditional Knowledge, folklore, indigenous textiles and cultural appropriation – Is there room for folklore. Protection under intellectual Property Law?” Doctoral thesis, University of Ottawa (2010).

15.Bently, L, “ The Design/Copyright Conflict in the United Kingdom: A History  in Estelle Derelaye (ed)
The Copyright/Design Interface, Past, Present and Future, Cambridge UniversityPress (2018).

 

[i]     Ralph Lauren, Good Reads, https://www.good reads.com/quotes/538638 – fashion-is-not-necessarily-about-labels-it-is-not-about-brands.

[ii]    Microfibres Inc v. Giridhar & Co. 2006 (32) PTC 157(Del.).

[iii]   Case No.CS(OS)1446 of 2011 decided on 15.5.2013.

[iv]   Some authors add two more to this list-diffusion and bridge.

[v]    Nicole Giambarrese, The Look for Less: A survey of intellectual property protections in the Fashion Industry, 26 Tourol.Rev.243(2010).

[vi]   Philip Liu, An Open Shield:Antitrust Arguments against Extending copyright protection to Fashion Designs, 23

       INFO.&COMM.TECH.L.,159 (2014).

[vii]  Ibid.

[viii]  Kimberly A. Harchuck, Fashion Design Protection. The Eternal Plight of the soft sculpture, 4 AKRON INTELLPROP-073 (2010).

[ix]   Manaswini Raj, Flashing Badges and Design-copyright: A case comment, 22 NATL, Sch.India, Rev.199(2010).

[x]    Susanna Monseau, “ European Design Right : A Model for the Protection of All Designers from Piracy”, American Business Law. Journal, Vol 46, Issue 1, Spring 2011.

[xi]   Case C-345/13, CJEU, June 19,2014.

[xii]  Tribunal de commerce, Paris, May 18,1994, E.C.C.1994, 512(Fr).

[xiii]  Legge 22 aprile 1941, n.633 in G.U, Jul.7,1941,n.166,art 2(10) (lt.) available at http://wipo.int/wipolex/en/details.jsp?id=10311.

[xiv]       Mario Franzosi, Design Protection Italian Style, 1 J. Intellectual Property Law & Prac.599,602 (2006).

 

 

Seesaw of Supreme Court in N.N. Global Mercantile Pvt. Ltd. v.
Indo Unique Flame Ltd.

Stamp Act v. Arbitration Act

*(By Saji Koduvath, Advocate, Kottayam)

Abstract

Several earlier decisions, including N.N.Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. (2023 (4) KLT SN 40 (C.No.30) SC = 2023 KLT OnLine 1429 SC = (2023) 7 SCC 1),
dated April, 25, 2023, held that existence of a valid arbitration agreement with sufficient stamp was necessary for ‘reference to arbitrator’ under Section 8 or 11 of the Arbitration and Conciliation Act, 1996; and if an arbitration agreement was not sufficiently stamped it could not be sent for Arbitration.

Seven Judge Bench of the Apex Court, in N.N.Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd., on December 13, 2023, held that the objections as to insufficiency of stamp lies in the domain or ambit of the Arbitral Tribunal; and it could not be a subject for the Court (that sends the matter to the Arbitral Tribunal).

The Seven Judge Bench of the Supreme Court held-

●    Defect on non-stamping of a document is curable.

●    Such a document is not void (though “inadmissible” under Section 35 of the Stamp Act).

●     The courts, only examine whether the arbitration agreement“prima facieexists”(under Section 8 and 11 of the Arbitration Act).

●     The objection as to non-stamping fall within the ambit of the Arbitral Tribunal (Section 16).

Reference to Seven-Judge Bench

The Five Judge Bench decision in N.N.Global Mercantile Pvt. Ltd. v. Indo Unique
Flame Ltd. (2023 (4) KLT SN 40 (C.No.30) SC = 2023 KLT OnLine 1429 SC = (2023) 7 SCC 1),was placed before the Seven Judge Bench, in a ‘Curative Petition’, considering the “larger ramifications and consequences” (within the shortest time?).

Findings of the Seven-Judge Bench – on Stamp Act, in Nutshell

●    The Stamp Act is a fiscal statute only.

●    The Act itself provided for curing defects on non-stamping.

●    Hence such unstamped agreements are not void.

Findings of the Seven-Judge Bench – on Arbitration Act, in Nutshell

●     The Arbitration Act provided for minimum judicial interference.

●     Arbitration Act is a self-contained Code.

●     It provides for the separability of the arbitration agreement from the main contract.

●     Arbitral Tribunals had jurisdiction to determine the limits of their own jurisdiction. Thereby, the Arbitral Tribunal can decide “the existence and validity of an arbitration agreement“.

●    Harmonious interpretation of Stamp Act and Arbitration Act is needed, for-

●    The Arbitration Act, a comprehensive legal Code.

      ●   It is a “special”statute.

      ●   It did not specify stamping as a pre-condition of a valid arbitration agreement.

      ●   It requires courts to confine at the referral stage to examination of the existence of arbitration agreement.

The Seven Judge Bench highly relied on Section 16 of the Arbitration and Conciliation Act, 1996, which declares the competence of Arbitral Tribunal to determine the existence or validity of the arbitration agreement .

The Supreme Court has overruled Earlier Decisions

●     N.N.Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. (2023 (4) KLT SN 40 (C.No.30) SC = 2023 KLT OnLine 1429 SC = (2023) 7 SCC 1).

●     SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. Ltd.(2011 (3) KLT SN 69 (C.No 66) SC = (2011) 14 SCC 66).

●     Garware Wall Ropes Ltd. v. Coastal Marine Constructions Ltd. (2019 (2) KLT OnLine 3125 (SC) = (2019) 9 SCC 209).

These (earlier) decisions held –

●     Existence of a valid arbitration agreement,with sufficient stamp, was necessary, for ‘reference to arbitrator’.

These decisions relied, mainly, on Section 8(1) of the Arbitration and Conciliation Act, 1996 which reads as under:

●     “A judicial authority …. shall … refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

FINDINGS OF THE APEX COURT

Non-Stamping Does Not Render a Document Invalid or Non-existent.

● “194. The interpretation accorded to the Stamp Act by this Court in the present judgment does not allow the law to be flouted. The Arbitral Tribunal continues to be bound by the provisions of the Stamp Act, including those relating to its impounding and admissibility. The interpretation of the law in this judgment ensures that the provisions of the Arbitration Act are given effect to while not detracting from the purpose of the Stamp Act.

195. The interests of revenue are not jeopardised in any manner because the duty chargeable must be paid before the agreement in question is rendered admissible and the lis between the parties adjudicated. The question is at which stage the agreement would be impounded and not whether it would be impounded at all. The courts are not abdicating their duty but are instead giving effect to:

●    a. The principle of minimal judicial intervention in Section 5 of the Arbitration Act;

●    b. The prima facie standard applicable to Sections 8 and 11 of the Arbitration Act; and

●    c. The purpose of the Stamp Act which is to protect the interests of revenue and not arm litigants with a weapon of technicality by which they delay the adjudi-cation of the lis.

●    d. The interpretation of the law must give effect to the purpose of the Arbitration Act in addition to the Stamp Act.”    (emphasis in original)

Referral Court Not to Impound Unstamped Instrument

The Apex Court held as under:

● “218. The discussion in preceding segments indicates that the referral court at Section 11 stage should not examine or impound an unstamped or insufficiently stamped instrument, but rather leave it for the determination by the Arbitral Tribunal. When a party produces an arbitration agreement or its certified copy, the referral court only has to examine whether anarbitration agreement exists in terms of Section 7 of the Arbitration Act. The referral court under Section 11 is not required to examine whether a certified copy of the agreement/instrument/contract discloses the fact of payment of stamp duty on the original. Accordingly, we hold that the holding of this Court in SMS Tea Estate (P) Ltd. (supra), as reiterated in N.N.Global 2 (supra), is no longer valid in law.”

Conclusions of the Apex Court

The Apex Court held further as under:

“224. The conclusions reached in this judgment are summarised below:

●     Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable;

b.    Non-stamping or inadequate stamping is a curable defect;

c.    An objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The concerned court must examine whether the arbitration agreement prima facie exists;

d.    Any objections in relation to the stamping of the agreement fall within the ambit of the Arbitral Tribunal; and

e.    The decision in N.N.Global 2 (supra) and SMS Tea Estates (P) Ltd. (supra) are overruled. Paragraphs 22 and 29 of Garware Wall Ropes Ltd. (supra) are overruled to that extent.”

End Notes

Arbitration and Conciliation Act, Sections 7, 8 and 16

7. Arbitration agreement.

●     In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

●     An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.

●     An arbitration agreement shall be in writing.

●     An arbitration agreement is in writing if it is contained in

      ●    (a) a document signed by the parties;

      ●    (b) an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or

●    (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.

●     The reference in a contract to a document containing an arbitration clause consti-tutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

8. Power to refer parties to arbitration where there is an arbitration agreement.

●     (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court,refer the parties to arbitration unless it finds that prima facieno valid arbitration agreement exists.

●     (2) The application referred to in sub-section (1) shall not be entertained unless it
is accompanied by the original arbitration agreement or a duly certified copy thereof:

      ●  Provided that where the original arbitration agreement or a certified copy thereofis not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.

●    (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

16.Competence of Arbitral Tribunal to rule on its jurisdiction.

●     (1) The Arbitral Tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,–

●     an arbitration clause which forms part of a contract shall be treated as an agreementindependent of the other terms of the contract; and

●     a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) Where an award is remitted under sub-section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court:

Provided that any time so fixed may be extended by subsequent order of the Court.

(3) An award remitted under sub-section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed.

New Bharatiya Nyaya Sanhitha 2023 —
From A Lawyer’s Perspective

(By Advocate Sunny Mathew, High Court of Kerala)

From 1st July 2024 onwards the Bharatiya Nyaya Sanhitha (BNS for brevity), is coming into force. At the outset I would like to say that the new BNS will bring in total chaosto all the stake holders namely the prosecution,defence, investigating agencies and judiciary.Let’s analyze the major changes brought in the new Act. I would like to desect BNS under four heads i.e., New offences, additions, deletions and unwarranted retentions.

NEW OFFENCES

SECTION - 69

● Under Section 69 of the B.N.S. sexual intercourse with a woman by deceitful means or by making promise to marry etc., is made an offence punishable with imprisonment for a term which may extend to 10 years and fine.

SECTION - 95

● Under Section 95 of the new Act hiring, employing or engaging any child to commit an offence is made punishable with imprisonment which shall not be less than 3 years but which may extend to 10 years and with fine and if the offence is committed be punished with the punishment provided for that offence as if the offence has been committed by the such person himself. By way of an explanation hiring, employing etc., of a child for sexual exploitation or pornography is covered within the meaning  of this Section.

SECTION- 111

● Under Section 111 of the B.N.S. organized crimes like kidnapping, robbery, extortion, land grabing,contract, killing, economic offences  cybercrimes etc., committed by mafia gangs or crime syndicates are punishable, and under sub-section (2)(a) of Section 111 if resulted in death of any person the offence is punishable with death or imprisonment for life and fine which shall not be less than `10 lakhs with no upper limit, and in other cases punishable with mandatory minimum 5 years of imprisonment which may extend to imprisonment for life and a minimum fine of `5 lakhs with no upper limit. However the word ‘cybercrime’ is not defined anywhere in B.N.S. and is capable of misuse.One draconian provision under Section 111 of B.N.S. is sub-section (6) which prohibits possession of any property derived or obtained from the commission of an organized crime. The said offence is punishable with imprisonment  which shall not be less than 3 years but which may extend to imprisonment for life and fine which shall not be less than ` two lakhs with no upper limit. Here mere possession of the property even without  knowledge that the said property is involved in an organized crime is punishable. Moreover under sub-section (5) harbouring or concealing any person who has committed an offence under this Section is made a serious offence punishable with imprisonment which shall not be less than three years but which may extend to imprisonment for life and a minimum fine of ` 5 lakhs with no upper limit.

SECTION -112

 

 ● Under Section 112 of the new Act petty organized crime has been introduced and whoever being member of a group or gang commits any act of theft snatching, cheating, unauthorized selling of tickets etc., is made punishable with imprisonment which shall not be less than 1 year but which may extend to seven years and fine. By way of explanation theft under this Section is defined as including theft from vehicle, cargo theft,pick pocketing, shop lifting etc.

SECTION -113

● A draconian provision which will certainly be misused is the introduction of terrorist act as an offence under Section 113 of the B.N.S. The definition of terrorist act as contained in Section 15 of the Unlawful Activities (Prevention) Act, 1967 is copied, word by word, and introduced as an offence sans any of the checks and  balances contained in the U.A.P.A. Under Section 113(3) whoever conspires or attempt to commit, or advocates, abets, advise or incite directly or knowingly facilitates the commission of a terrorist act shall be punished with imprisonment for life and fine. Under Section 113(5) any person who is a member of a terrorist organization which is involved in terrorist act shall be punished with imprisonment for life and fine. The term ‘terrorist organization’ is not defined anywhere in the new Act.

SECTION - 152

● Under Section 152 of the B.N.S. Act endangering sovereignty, unity  and integrity of India is made an offence and whoever purposefully or knowingly  by words either spoken or written or by signs or by visible representation or by electronic communication or by the use of financial means excites or attempt to excite secession or armed rebellion etc, endanger the sovereignty or unity and integrity of India shall be punished with imprisonment for life or with imprisonment which may extend to seven years and with fine. Here one can find the ghost form of the draconian offence of sedition as contained in Section 124(A) of the IPC with more rigour.

SECTION - 226

● Under Section 106 of the B.N.S. attempt to commit suicide or to compel or restrain
exercise of lawful power to restrain any public servant from discharging his official duty is made an offence punishable with imprisonment for a term which may extend to one year or with fine or with both or with community service.

SECTION -304

● New Section 304 of B.N.S. makes the act of ‘snatching’ an offence punishable with imprisonment which may extend to three years and fine.

ADDITIONS

SECTION - 4

● Under Section 4(f) of the B.N.S. one more form of punishment namely “community service” is introduced for commission of six petty offences. However, the word community service is not defined under the Act and this will certainly lead to confusion.

SECTION-70

 

● Sub-section (2) has been introduced to new Section 70 corresponding to Section
376-D (Gang rape) making gang rape of a woman under the age of 18 a separate offence with a punishment for the remainder of the natural life of the offender and also with fine which should be just and reasonable to meet the medical expenses and re-habilitation of the victim.

SECTION -103

● New Section 103 corresponding to Section 302 IPC, provides for punishment for  murder. While retaining the punishment for murder as in IPC sub-section (2) has been added providing for punishment for committing murder on the ground of race, caste or community, sex, place of  birth,language, personal belief etc., with imprisonment for life. In other words, murder by mob lynching is specifically made an offence.

SECTION -106

● Under the B.N.S. causing death by negligence is made a more serious offence punishable with imprisonment for a term which may extend to 5 years and with fine. Registered Medical Practitioners are also brought under the purview of the offence and if death is caused while performing medical procedure he shall be punished with imprison-ment for a term which may extend to two years and fine. Moreover under Section 106(2) causing death by negligent driving of vehicle and the offender escapes without reporting it to a Police Officer or a Magistrate soon after the incident is punishable with imprisonment which may extend to 10 years and fine.

SECTION -117

● Under Section 117 of B.N.S. (corresponding to Section 325 of the IPC) sub-sections (3) and (4) are introduced. Under Section 117(3) while causing grievous hurt if the victim suffers permanent disability or is made in persistent vegetative state shall be punishable with imprisonment for the remainder of that person’s natural life. Under Section 117(4) if grievous hurt is caused by a group of five or more persons on the ground of race, caste or community personal belief etc., shall be punished with imprisonment which may extend to 7 years and fine.

DELETIONS

SECTION -124-A

Section 124-A which the Apex Court in Vombatker S.G.v. Union of India reported in 2022 (3) KLT OnLine 1105 (SC) held as unconstitutional is a major deletion. However, under Section 152 B.N.S a more draconian provision is incorporated and therefore, the tiger is still on your door steps and sedition law still exists.

SECTION - 377 OF IPC

Another important deletion is the deletion of Section 377 of the IPC.

RETENTION  WHICH  OUGHT  TO  HAVE  BEEN  AVOIDED SECTION - 88

 

● One retention under B.N.S. is Section 88 (corresponding to Section 312 IPC) i.e., causing ‘miscarriage’. This is without taking into account the Medical Termination of Pregnancy Act, 1971 and the Constitution Bench decision of the Apex Court is ‘X’ v. Government of NCT of Delhi reported in 2022 (5) KLT 747 (SC) wherein it has been held that a woman has a right, which flaws from Article 21 of the Constitution of India, to terminate unwanted pregnancy.

PRACTICAL DIFFICULTIES

● Now all the stakeholders are aware what will be the section of offence, if a particular offence is committed. For example if a person beat another with hand it will be Section 323 of IPC and if grevious hurt is caused thereby it will be Section 325 of the IPC  with exception provided under Section 335 and if beaten with a stick it is Section 324 of the IPC, if grevious hurt is caused thereby it is 326 of the IPC and if amounts to attempt to murder 307 of the IPC and so on.Under B.N.S. all the sections of offences are completely re-arranged.Once B.N.S. is implemented all thestake holders will find it difficult to find out which is the corresponding penal provision under the B.N.S. Yet another problem will be that all the offences committed prior to 01.07.2024 will have to be dealt with under the IPC and it will take at least another 30 years for those cases to conclude. In other words at least for the coming 30 years all the stakeholders will have to labour under both the statutes resultingin utter confusion.

CONCLUSION

Under the B.N.S.only few new offences are introduced which could have been introduced by way of inserting at appropriate places. Required additions could have been incorporated by amendments to existing Sections. Section 498-A and 304-B of IPC are classic examples of introducing new offences.B.N.S. has been introduced to ‘change’ the colonial hangover of Indian Penal Code. However, the proclaimed intention of the Legislature is not seen achieved.

Presumption of Conclusive Proof under the
Bharatiya Sakshya Adhiniyam, 2023

(By A.S. Madhu sudanan, Advocate, Thalasserry)

Section 4 of The Indian Evidence Act, 1872, defines three different types of Presumptions. Out of the said three, the third limb of Section 4, describes Conclusive Proof. Section 4 of the Indian Evidence Act defines “Conclusive Proof ”as follows -- When one fact is declared as the conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”

The most pertinent user of the said presumption of conclusive proof is under Section 112 of the Indian Evidence Act which states, “The fact that any person was born during the continuance of a valid marriage between the mother and any man or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of the man, unless it can be shown that the parties to the marriage had no access to each other at any time when it could have begotten.”

The ingredients of the said Section is mainly-

a.   There must have been a marriage;

b.   The said marriage is a legally valid marriage;

c.   The person must be born during the subsistence of the said marriage or within 280 days of its dissolution.

d.   If the marriage was dissolved the mother ought to have remained unmarried.

         If the above facts are proved that Court shall presume conclusively that the said person is the legitimate child of that man.

The presumption however also includes an exception that can be proved by the husband, which is that at the relevant point of time when the child was begotten, the husband did not have physical access to his wife.

The reason behind the said presumption is that a child should not be easily bastardised. Even if it is proved that during the subsistence of the marriage the wife had committed adultery, the man cannot escape from the presumption of the legitimacy of the child being born during the said marriage due to the existence of the above presumption. The existence of such a presumption in the Indian Evidence Act can be truly associated with the fact that the said Act was enacted in 1872 when the medical science had not progressed and it was impossible to conclusively determine whether a child born to a woman is in fact the son of her husband or not and the word of the woman would have to be taken for granted.

Before the advent of the DNA profiling the paternity of a child could be excluded by using blood test. However the accuracy of the said test was doubtful and it could only exclude the possibility of the paternity at best but could not confirm the paternity of an infant conclusively. It was in the 1980s that DNA profiling came in to existence as a scientific tool.The said test is highly precise and reliable. In 2005, the Code of Criminal Procedure was amended and an explanation was included in Section 53 of the Code, which empowered the Investigating Officer to collect, bodily fluids, swabs, hair etc., of the accused for performing tests including DNA profiling during the course of investigation. In spite of the said amendment in the Code of Criminal Procedure the presumption under Section 112 of the Indian Evidence Act continued and because of the said presumption the DNA test of a child was not admissible as proof to prove or to disprove paternity and as long as the evidence in respect of lack of access as stated in Section 112 could not be brought forth even if DNA test result was available to the contrary, the legitimacy of the child was conclusive and the man was burdened with the paternity of the child. Such a conclusion had drastic consequences as the man is burdened to provide maintenance to the child and the child could inherit the said man as his legitimate son if the man dies intestate. Hence the presumption is tyrannical because under the circumstances, the man is compelled to live with the knowledge of the fact that he burdened with the fatherhood of a child whose paternity is different.

Rajesh Francis v. Preethi Rosalin(2012 (2) KLT 612) was a decision of the Division Bench of the Kerala High Court in respect of Section 112 of the Indian Evidence Act. In the said matter the husband had approached the Family Court to declare the marriage as null and void under the Indian Divorce Act, 1869. The case of the husband was that at the time of marriage the wife was pregnant through another man and hence the consent of the husband to the said marriage was vitiated by fraud. The Court upheld the contention of the husband and the marriage was declared null and void. It was also held that Section 112 being a part of the substantive law is applicable to the Family Court and Section 14 of the Family Courts Act would not exempt the Family Court from the operation of Section 112 of the Indian Evidence Act. The High Court was also pleased to hold that existence of a valid marriage is the sine qua non for the invocation of Section 112 of the Indian Evidence Act and in the instant case since the consent to the marriage is vitiated by fraud there was no valid marriage and hence Section 112 cannot be invoked. However in paragraph No.46 and 47 of the said Judgment the High Court has given a very innovative interpretation to the word “access” found in Section 112 of the Indian Evidence Act. In paragraph No.46 it is stated, that the modern techniques of science make it possible to determine exactly when the sperm fertilised with the ovum and the exact time in which the child was begotten. In paragraph No 47 of the said Judgment the Honourable High Court has widened the scope of the word “access” and given it a liberal and progressive meaning by stating that the word “access’ in Section 112 should be read as to mean, the access of the sperm of a man to the ovum and not the physical access of the husband and wife.

The said decision was followed by the decision of the Apex Court in Nandlal WasudeoBadwaik v. Lata Nandlal Badwaik and Anr.(2014 (1) KLT SN 25 (C.No. 32) SC = (2014) 2 SCC 576). Here the petitioner was the husband and the respondent No.1 is the wife and the respondent No.2 is the alleged child. The petitioner had denied the paternity of the child and hence the Court had directed DNA test. The DNA test excluded the petitioner from the paternity of the respondent No.2. The Honourable Court proceeded on the grounds that when there is immaculate evidence in the DNA report, the Court need not rely on the presumption under Section 112 of the Indian Evidence Act. This decision made the DNA evidence admissible and held that in the event of availability of DNA evidence it would supersede the presumption under Section 112 of the Indian Evidence Act.

The said decision was followed by the decision of the Apex Court in Dipanwita Roy v. Ronobroto Roy (2014 (4) KLT SN 61 (C.No.76) SC = (2015) 1 SCC 365).In the above matter the husband had approached the Court seeking dissolution of marriage by a decree of divorce alleging adultery on the part of the wife. The Apex Court was pleased to hold that in the main issue was adultery on the part of the wife and not the legitimacy of the child and hence DNA examination of the child for the purpose of proving adultery committed by the wife was permissible. The Court specifically held that the presumption regarding legitimacy of the child is not disturbed. It was also held that the wife was free to comply with the order and submit the child to the test and in case she fails the Court can under the circumstances draw adverse inference against the wife.

Even though in the above decisions the Apex Court was pleased to hold that DNA evidence was admissible and that it would dislodge the presumption under Section 112 of the Indian Evidence Act the Apex Court does not discuss the conclusive nature of the said presumption under Section 112 and merely stated that the evidence in the form of DNA Report would supersede the presumption under Section 112. The Apex Court has also not endeavoured to give a wider meaning to the word “access”, as discussed in Rajesh Francis v. Preethi Rosalin. Hence in spite of the above decisions of the Apex Court, the Courts have been lukewarm in superseding the presumption under Section 112 of the Indian Evidence Act and have been time and again holding that the DNA test cannot be permitted at a mere asking and that there must be strong plea of non-access for the purpose of allowing such a test. The Courts have also held that the DNA test must be permitted only on rarest occasion in deserving circumstances. The Courts have further held in subsequent decisions that when the cohabitation between the husband and the wife stands proved Section 112 would prevail and the only escape from the application of the said presumption is by proving non-access as provided in the said Section. Hence Section 112 of the Indian Evidence Act remained a grey area requiring amendment by the Parliament, to suit the need of the times.

It was in this background that the Bharatiya Sakshya Adhiniyam, 2023 was passed by the Parliament. Conclusive Proof is defined under Section 2(b) of the Adhiniyam. The legitimacy of the child born during subsistence of marriage, is provided under Section 116 of the Adhiniyam. It is pertinent to note that Section 2(d) and Section 116 is the verbatim duplication of the provisions in respect of conclusive proof as found in Section 4 of the Indian Evidence Act and the provisions of Section 112 of the Indian Evidence Act respectively.

The Parliament could have at least noted the decisions of the Apex Court in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwaik and Another and in Dipanwita Roy v. Ronobroto Roy and carved out an exception in regard to the acceptance of DNA test to the application of the provision in respect of birth of a child during the subsistence of marriage as provided in Section 116 of the Adhiniyam. Or at least the Parliament could have widened the scope of the word “access” in accordance to the decision of the High Court of Kerala in Rajesh Francis v. Preethi Rosalin.

It is most respectfully pointed out that Section 112 of the Indian Evidence Act was one provision which cried for an amendment mainly to incorporate the changes arising due to the development of science and technology and that opportunity is now lost by the incorporation of Section 116 of the Adhiniyam.

One Year Interruption or Obstruction will not Affect

Prescriptive Easement

(By Saji Koduvath, Advocate, Kottayam)

 

Abstract

1. ‘Obstruction‘ up to One year is Not an ‘Interruption’, under Section 15

 In accordance with Explanation II to Section 15, Indian Easements Act, 1882 –

               an obstruction for a period up to One Year

               will not be counted, or considered, as a bar

                for achieving the completion of 20 years’

                peaceable enjoyment without interruption

                (even if the obstruction is acquiesced,

                or suffered silently, by the dominant owner).

Because, Explanation II says –

“Nothing is an interruption within the meaning of this section” (Section 15)

               “… unless such obstruction is submitted to or acquiesced in

               for one year after the claimant has notice thereof and

               of the person making or authorising the same to be made”.

2. What does (20 + 2) years denote?

Para 5 of Section 15 of the Easements Act, refers to various easements

(such as, right to light or air, way, watercourse, use of water, etc. –

the period for prescription for each one is 20 years) and says:

               “Each of the said periods of twenty years shall be taken to be

               a period ending within two years next before

               the institution of the suit wherein

               the claim to which such period relates is contested.” 

It denotes two things:

               (1) Easement by prescription (with minimum 20 years’ user)

               must have been perfected, prior to the ‘obstruction’.

      (2) Suit must be filed within 2 years of obstruction (cause of action).

Therefore, a suit can be filed –

               on the next day of completing the ‘20-years-user’;

               but, within 2 years of obstruction (cause of action).

3. Why No Limitation of 3 years, as usually seen in Limitation Act?

‘Obstruction’ up to One Year being Not Counted

       (for the purpose of Section 15, as per Explanation II) in cases of

       acquiescence by the dominant owner,

        2 years‘ limitation period (in Section 15 para 5) will begin

        only after the said period “for One Year“.

Therefore, where there is acquiescence for a period up to One Year,

               the period of ‘limitation’ will be 3 years.

But, it is obvious:

              If dominant owner has made an attempt to remove the obstruction

              (or interfered, in contrast to acquiescence)

              the ‘limitation-period’ of 2 years will run from that date.

“Obstruction is submitted to or acquiesced in for One Year” (in Explanation II)

For the acquisition of easement by prescription on light, air, support, way etc.,
Section 15 Easements Act stipulates that it must have been enjoyed ‘without interruption’ for minimum 20 years.

While explaining what is ‘interruption’, 1st part of Explanation II explains that ‘interruption’ is actual cessation of the enjoyment. The 2nd part of Explanation II to
Section 15 lays down –

●    “Nothing is an interruption within the meaning of this Section” (Section 15)

               “… unless such obstruction is submitted to or acquiesced in

               for one year after the claimant has notice thereof and

               of the person making or authorising the same to be made”.

An Obstruction for a period up to One Year will Not be an ‘Interruption’

Analysing Explanation II, on first principles, it can be said –

●      An obstruction for a period up to one year will not be an ‘interruption’, or a bar to the ‘peaceable enjoyment’ (to claim easement by prescription).

●    The aforesaid legal proposition (that an obstruction for a period up to one year will not prevent the perfection of easement by prescription), will apply with full vigour even if it is acquiesced by the dominant owner.

‘Obstruction‘ upto One year (in the 20th year, or earlier), Not Counted

It is also definite from the 2nd part of Explanation II to Section 15 –

●     The aforesaid period of obstructionup to one year, that will not stop the fulfilment of 20 years’ uninterrupted enjoyment (required for the perfection of easement by prescription), can be either in the end of 20th year, or in any period earlier thereto .

Explanation II is an enabling provision

2nd part of Explanation II (that is, an obstruction for a period up to One Year will not stand as an interruption) is an enabling provision that stands in favour of the dominant owner (claimant of the easement), for the following reasons –

●   (1) ‘interruption’ is a (negative) matter that stands against (perfection of) easement by prescription, and

●  (2) Explanation II lays down – if only the dominant owner acquiesced obstruction, for a period more than one year, then only it will operate against acquiring easement.

               That is, an obstruction for a period up to one year

               will not be counted, or considered as a bar

               for achieving the completion of 20 years’

               peaceable enjoyment without interruption.

Note: 1.It is clear that the pleading as to ‘interruption, for more than one year‘ has to come (in most cases) from the servient owner (to show no perfection of easement by prescription). Therefore, the burden of proving obstruction, for more thanone year, will be upon the servient owner.

2.When this plea is raised by the servient owner-

(i) he has to admit the enjoyment of the right claimed up to the date of obstruction; and

(ii) if that plea is resisted by the dominant owner, saying that the period of obstruction is below one year, then it will will be a question of fact.

Reckoning of one year period

Explanation II makes it clear –

● the period of one year is reckoned (1) from the date of notice of the obstruction by the claimant and (2) after getting the knowledge of the person who made the obstruction, or the person who authorised the same to be made.

This plea can be validly raised by the dominant owner (claimant of easement) in the following set of facts –

● The servient owner interrupts/obstructs a way by constructing a wall, a few months prior to completion of 20-year-period (for acquiring easement by prescription).

● Acquiescing the obstruction, the dominant owner (claimant of easement) purchases a nearby property and makes an (alternate) way.

● After completion of 20-years-user (as regards the earlier way) and within one year of ‘acquiescing’ obstruction, the dominant owner can validly claim easement by prescription over that way, invoking this provision.

Why No Limitation of 3 years as usually seen in Limitation Act?

‘Obstruction’ up to One Year being not counted (for the purpose of Section 15, in accordance with Explanation II) in cases of acquiescence by the dominant owner (that is, in spite of notice of obstruction, no attempt made to remove it), 2 years’ limitation period (in Section 15 para.5) will begin only after the said period “for One Year“.

● That is, in cases where there is acquiescence to obstruction for a period up to one year, the period of ‘limitation’ will be 3 years.

Hence, in cases where there is acquiescence (up to one year) after perfection of the 20-year period, suit can be filed –

●  on the next day of completing the ‘20-years-user’;

●  or, within three years of obstruction.

But, it is obvious:

●  If the dominant owner has made an attempt to remove obstruction (or interfered, in contrast to acquiescence), the limitation of 2 years will run from that date.

No Legal Basis for the Proposition based on “Completion of 22 Years user”

Para.5 of Section 15 of the Indian Easements Act, 1882 is the relevant provision.

It reads as under:

● “Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested..” 

● (We see exactly similar wording in Section 25(2), Limitation Act also.)

“Each of the said periods of twenty years” – Import

● Section 15 and 25 refer to various easements – right to light or air, way, watercourse,   

   use of water, way etc.

●     The period for prescription for each of the said easement is 20 years.

“Wherein the claim to which such period relates is contested”- Gist

●     It simply refers to ‘cause of action’.

“Ending within two years”– Purport

●     Para 5 of Section 15 lays down two essential conditions –

●     Firstly, the suit must have been filed after perfecting the right of easement by 20 years’ user, and

●     Secondly, the suit must have been filed within two years of cause of action; that is, obstruction.

On analysis, it can be seen that Para 5 of Section 15 is attracted in the following situation:

1. The cause of action for a suit under Section 15 (interruption to the enjoyment or its threat), must be after perfecting the right of easement by 20 years user.

2. Such cause of action can be one that arises on the next day of completion of 20 years. But, the suit must have been filed within 2 years of such cause of action.

3. There is no legal basis at all for the proposition based on “the completion of 22 years user” inasmuch as:

●     the cause of action (interruption or threat) contemplated in Para 5 is that arises after perfection of easement after completion of 20 years, and

●     the suit could be brought on that day of cause of action itself, or any day within two years.

4. In case, the suit is not filed within 2 years of the cause of action (interruption), by the person claiming the easement (dominant owner); his right thereon will stand barred.

5. ‘Obstruction’ up to One Year being not counted, as explained above (for the purpose of Section 15, in accordance with Explanation II), 2years’ limitation period (in Section 15
para.5) will begin only after the said period “for One Year“; and the thereby period of ‘limitation’ will be 3 years.

See:

●     Nachiparayan v. Narayana Goundan (AIR 1920 Mad.541).

●     Syed Manzoor Hussain v. Hakim Ali Ahmad (AIR 1980 All.389).

●     Sundar v. Shiva Narain Jaiswal (AIR 1988 Pat. 216).

●     Badariya Madrassa Committee v. Antony Robert Breganza (2006 (2) KLT 636).

●    Satya Devi v. Sansar Chand: 2007-50 AIC 678, CIVCC 2007-2 605, HLJ 2006-2 1392, 2007-5 RCR(CIVIL) 352, ShimLC 2006 2 431.

●    Marthoma Syrian Church v. Jessie Thampi (2020 (2) KLT 653).

Does Cessation of Enjoyment (out of Obstruction) alone mark ‘Interruption’?

Explanation II to Section 15 of the Easements Act reads as under:

●   “Explanation II: Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.”

The 1st part of Explanation II explains what is ‘interruption’. 

According to this part, there will be interruption if it is suffered –

●    by actual cessation of the enjoyment,

       ●    by an obstruction,

       ●    by the act of some person other than the claimant.

See:

●   Eaton v. The Swansea Waterworks Co., (1851) Eng R 559, 17 QB 267, 117 ER 1282.

●    Prasad v. Patna City Municipality (AIR 1938 Pat. 42).

●    Anu Sundar v. Shiva Narain Jaiswal (AIR 1988 Pat.216).

●    Pankan Soman v. C.K.Manoharan (2019 (1) KLT SN  90 (C.No.121).

●    See also:Neil J. Creado v. Shah Abbas Khan (2020-1 Bom.CR 160).

●    Kapilrai Brijbhukhandas v. ParsanbenDhirajlal (1998-4 Guj.CD 2941).

‘Without Interruption’ in Section 15 is congruent to ‘Peaceable Enjoyment’

Explanation II to Section 15 explains ‘interruption’ as ‘actual cessation’ for ‘obstruction’. Therefore,

●  ‘Without interruption’ in Section 15 is congruent to ‘peaceable enjoyment’; and actual cessation by obstruction’ alone negatives ‘peaceable enjoyment’.

● In other words, ‘peaceable enjoyment’ also stands on par with (similar to) the expla-nation to ‘interruption’ (that is, there must be actual obstruction, more than a verbal dispute, or legal proceedings).

See:

●     Muthu Goundan v. Anantha Goundan (AIR 1916 Mad.1001: 31 Ind Cas 528).

●     Varkey John v. Varkey Stanselose (AIR 1973 Ker.198).

●   Eaton v. The Swansea Waterworks Company (1851) Eng R 559 (1851) 17 QB 267, (1851) 117 ER 1282.

In Tagore Law Lectures delivered by Peacock deduces, from the cases, that “peaceable enjoyment” means “enjoyment without interruption or opposition of the servient owner sufficient to defeat the enjoyment”, and “that obstruction or opposition to enjoyment must find expression in something done on the servient tenement or the legal proceedings.”

●    See:Bai Kurvarbai v. Jamsedji Rustamji Daruvala (49 Ind Cas 963).

End Notes

Section 15 Easement Act reads as under:

●   Acquisition by prescription. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,

●   and where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,

●   and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,

●  the right to such access and use of light or air, support or other easement shall be absolute.

●   Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.

Explanation I.–Nothing is an enjoyment within the meaning of this Section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.

Explanation II.–Nothing is an interruption within the meaning of this Section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.

Explanation III.–Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this Section.

Explanation IV.–In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.

●  When the property over which a right is claimed under this Section belongs to Government this Section shall be read as if, for the words “twenty years”, the words “thirty years” were substituted.

Illustrations

●   (a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862 to 1st January, 1882. The plaintiff is entitled to judgment.

●   (b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed “as an easement” for twenty years.

●   (c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoy the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.