Need for an Amendment in Section 243 of Kerala Panchayat Raj Act, 1994 and Section 539 of the Kerala Municipality Act, 1994

(By H.Sajeer, Law Officer, Principal Directorate, Thiruvananthapuram)

The Kerala Panchayat Raj Act and the Kerala Municipality Act have specifically fixed a limitation for the recovery of arrears due to it. The Apex Court and the Hon’ble High Court held that, the limitation stipulated in the K.P. Act and K.M. Act are mandatory and not directory. But it is because of the rigidity and strictness, a lot of public money, as arrear of property tax and fees to the Panchayats and Municipalities have remained unrecovered. The swindlers got more and more benefit because of the shorter period of limitation. 

This is an attempt to express the need for an amendment in Section 243 of the K.P. Act,1994 and Section 539 of the KM Act, 1994.

Section 243 of the Kerala Panchayat Raj Act,1994 says,  No distraint shall be made, no suit shall be instituted  and no prosecution  shall be commenced in respect of any tax or other sum due to a Panchayat under this Act  or any rule or bye-law, or order made under it after the expiration of a period of three years from the date on which  the distraint might first  have been made, a suit might first have been instituted  or the prosecution  might first have been commenced, as the case may be, in respect of such tax or sum.

On going through the provision, it can be seen that the time stipulated for the collection of any fee or tax shall be of three years from the date of its assessment. It is the settled position that the local self government institutions are functioning from its own fund, which is created from the collection of fees and tax from the shops and commercial establishments and from those persons who are approaching these bodies for various services. The staff and the secretaries may change in every year. It is usual that a newbie in service may not be familiar with the file, may cause delay in sending distraint to the party in time. Such delay may cause and continue till another person assumes charge in the same seat. If the distraint made thereafter, the limitation will hit and the distraint will become time barred.

A proviso clause is added in the above Section, wherein it reads, 

Provided that in the case of assessment under sub-section (2) the above said period  of three years shall be computed  from the date on which distraint, suit or prosecution might first have been made, instituted  or commenced  as the case may be after making such assessment.

(2) Notwithstanding  anything contrary to this contained in this Act or the rules made thereunder, where for any reason, a person liable to pay any tax or fees leviable under this Act has escaped assessment, the Secretary may at any time within four years from the date on which such tax should have been assessed serve on him a notice assessing the tax or fee due and demand the payment within fifteen days from the date of serving  such notice and thereupon  the provisions of this Act  and the rules made thereunder  shall apply as if the assessment of such tax or fee was made in time.

On a combined reading of the proviso and the sub-section (2) of Section 243 of the K.P. Act, it can be seen that, if the Secretary is of the reason to believe that a person purposefully evading the tax or fees leviable to the Panchayat or escaped from the assessment, the Secretary can issue a notice to the person demanding the payment of such tax or fee. But it is also stipulated that such period shall be within four years from the date of the first assessment.

A penal provision is also incorporated, wherein ,   

(3) Where any tax or other amount due to a Panchayat has been barred by limitation under sub-section (1) due to the default of taking steps at the appropriate time and it is found in a lawful enquiry  that it was lost due to the default  of any officer or officers,  the amount so lost to the Panchayat shall be realised  with twelve percent interest thereon from such officer or officers.

The above penal provision is included to alert the officials to do their duty vigorously and punctually. Otherwise the liability of  another person’s tax would fall upon him.

A similar provision is also included in the Kerala Municipality Act,1994 also. Section 539
of the Act,

No distraint shall be made, no suit shall be instituted and no prosecution shall be commenced in respect of any sum due to a Municipality under this Act after the expiration of a period of three years from the date on which distraint might first have been made, suit might first have been instituted, or prosecution might first have been commenced, as the case may be, in respect of such sum:

Provided that in the case of assessment made under Section 282 the said period of three years shall be computed from the date on which distraint might have been made, suit instituted, or prosecution commenced, after the assessment under the said Section shall have been made.

 (2) Where any amount due to the Municipality has been barred by limitation under sub-section (1) due to the default of not taking steps at the appropriate time, and it is found in a lawful enquiry that it was lost due to the default of any officer or officers, the amount so lost to the Municipality shall be realised with twelve per cent interest thereon from such officeror officers.

In a conjoined reading of these two provisions, it is crystal clear that the recovery of any sum due to the Panchayat or Municipality shall be  recovered only within three years from the date of the amount falls due.

Section 243 of the Panchayat Raj Act 1994 clearly stipulates that no recovery can be made after expiration of a period of three years from the date on which distraint might first have been commenced or suit might first have been instituted as the case may be, in respect of the amount due.

The above said limitation is an open corridor to the fraudulent evaders, who were purposefully hiding for the payment of property tax and other fees leviable to the Panchayats and Municipalities.

In the Income Tax Act, Section 271CA, where a person fails to collect tax at source, he will be liable to pay a penalty equal to the amount of tax which he has failed to collect. But the limitation fixed in the KP Act and Municipality Act have a clear bar to use distraint to recover the arrears. 

For instance, the mobile tower companies have installed towers in the Panchayats and Municipalities by a bilateral agreement with  the land owner and the Company. Later the  tower charge  shall be assessed and levied by the Local bodies. These tower owners may change their addresses  or they merge or amalgamate with other companies. It is true that these companies defaulted huge sum to the Local Bodies as property tax and fees. If any new company who took over all the liabilities of the first  tower installed company approaches the local body to clear the dues, the Panchayat cannot collect the amount, due to the hit of  sub-section (2) of Section 243 of the Act.

InA.B Elezabeth v. Thuravoor Grama Panchayat, reported in  2021 (4) KLT 574, the Hon’ble High Court held that,

“Viewed in that perspective, I am of the considered opinion that even though the petitioner is not entitled to succeed on account of not following the proper procedure to be followed by the statutory audit authority as deliberated above, the petitioner is entitled to succeed on the ground of limitation prescribed under Section 243 of the Act, 1994, and therefore no recovery could be initiated after the expiry of a period of 3 years from the effective date discussed above.

In Plant Manager, Indian Oil Corporation Ltd v. Secretary, Thenhipalam Grama Panchayat, reported in 2010(3) KLT 300, it was held that for collecting arrear amount by imposing a condition that if the petitioner wants a renewal of the license, it should pay the arrears of license fee is violative of Section 243 of the Act.

Here what is intriguing is that, Panchayat Raj Act  Section 244  empowers the Panchayat to write off the irrecoverable amount, if in its opinion that such amount was not in any way recoverable. At the same time Section 243 empowers the Panchayat to impose penal action against those who were responsible for the delay in sending timely distraint.

It is discernible to point out that, the Panchayat and the Municipalities can write off any amount  whatsoever due to it, whether under the contract or otherwise, or any sum payable in connection therewith, if in its opinion such amount  or sum is irrecoverable. Hence any action for the recovery of time barred amount from the employees of the Panchayat or Municipalities, as stipulated in sub-section (3) of Section 243 of the Act may be a futile exercise and a plain road for the fraudsters to escape from the eye of law.The ultimate persons those who benefited from these provisions of the Acts are the multinational companies who were purposefully evading tax.

Hence, it is high time to revamp the limitation period stipulated in the Kerala  Panchayat Raj Act,1994 and the Kerala Municipality Act, 1994 by inserting a proviso that,

Provided further that, if the Panchayat is of the reason to believe that, where for any reason a person liable to pay any tax or fees leviable under this Act, has escaped assessment the Secretary may at any time, without considering the period of limitation, proceed against such person for the recovery of such dues with twelve percent interest thereon.

 If the above proviso cannot be implemented on any reasons, then the limitation period as stipulated may be extended to seven years. At the same time the strictures in sub-section (3) of Section 243 of the K.P. Act and sub-section (2) of Section 539 of the K.M. Act is either to be diluted or deleted.

KLT Exclusive Interview:

Empowering Perspectives : Insights From Three Women Senior Advocates of

the High Court of Kerala

(Interviewed by Adv. Ashly Harshad, Assistant Editor, KLT)

In 1916 when Ms. Regina Guha, a valid law degree holder was denied enrolment as a legal practitioner by the Full Court of Calcutta High Court on account of the then prevalent law which disqualified women from such enrolment it was the beginning of a quest for gender equality in the legal profession. In 1922 when Allahabad High Court allowed Ms.Cornelia Sorabji to be enrolled as a lawyer she became the first woman barrister of our country. Thereafter the Government amended the law favouring enrolment of women. Yet, a century later, discussions on women reservation in judiciary and senior advocate positions persist. How far have we come? Let’s hear from our Senior Women Advocates.

The interview with three women Senior Advocates of the High Court of Kerala, Senior Adv.Sumathi Dandapani, Senior Adv.V.P.Seemandini and Senior Adv.Dhanya P.Ashokan, highlights their remarkable journeys, challenges faced as women in the legal profession, and their contributions towards social justice. Their advocacy for change echoes resilience, determination, and a commitment to advancing justice.

There are no Shortcuts to Success; Litigation Demands Unwavering Commitment, Dedication and Perseverance

Senior Advocate Sumathi Dandapani, one of the two pioneer woman lawyers who was conferred senior designation expresses a sense of fulfilment while reflecting on her journey as a successful lawyer. She asserts that there is a supportive environment fostered by Judges and peers in the High Court of Kerala.

Back in 2007 when there were no woman senior advocates, you were one of the first two women senior advocates named in the history of the Kerala High Court. Your journey must be filled with unique experiences. Can you share some insights into the challenges you faced and the milestones you achieved on your path to becoming a Senior Advocate.

I believe my journey to becoming one of the first two designated women senior advocates in the history of the Kerala High Court has been a testament to resilience and determination. A significant milestone was establishing myself in the fiercely male-dominated realm of motor vehicles cases. Despite initial scepticism and attempts to undermine my presence, my familial background in the industry provided a crucial foothold, bringing in premium clients from the outset. I was happy to be a well-earning lawyer since day 1 of my litigation career. However, sustaining this success demanded relentless effort, including frequent travel across various districts from Kasargod to Trivandrum.

I would also recall the privilege of being Standing Counsel to various institutions like the Railway for about 3 and half decades, KLD Board for 2 and half decades, RBI for the past one decade, ISSHER, Trivandrum for the past decade and as Tamil Nadu State Council in Kerala for 5 years, as significant milestones in my journey.

During my tenure as a junior advocate, I had the privilege of practicing under the tutelage of esteemed legal minds, Justice Mr. P.C. Balakrishnan and Justice Mr. V.P. Mohan Kumar, both distinguished advocates at that time. A particular incident stands out vividly in my memory, emphasizing the importance of discipline and punctuality in this profession. One day, heavy rains and thunderstorms delayed my arrival at the office by a mere ten minutes. However, the consequence of this tardiness proved to be a valuable lesson in professionalism. Upon my arrival, Mohan Kumar handed a sternly worded two-page reprimand penned by P.C.B. and Mohan Kumar instructed me to read it before meeting my senior. While the experience may have felt harsh at the time, in hindsight, I recognize the invaluable role that such strictness and discipline played in shaping my professional values. It was through these lessons in accountability and punctuality that I learned the importance of diligence and commitment, so I would say that even challenges are only learning lessons in disguise.

I have also encountered various challenges reflective of systemic biases. There was an instance when I was repeatedly denied court orders even in meritorious cases which could be attributed to the fact that I did not meet the District Judge in his chamber upon his appointment as Judge. Eventually the matter got resolved.

When I contested for the presidency of the Kerala High Court Advocates’ Association, the prevalent notion questioned a woman’s candidacy, highlighting entrenched gender stereotypes in leadership roles within the legal fraternity. I am glad to say that the scenario is very different now and the change has definitely been for the better.

Being designated as a Senior Advocate in 2007, you have undoubtedly witnessed significant changes within the legal profession. How do you perceive the evolution of gender representation and equality within the Kerala High Court since your designation?

Since my designation as a Senior Advocate in 2007, I’ve witnessed notable shifts in gender dynamics within the Kerala High Court. The legal landscape has witnessed a commendable influx of women lawyers, marking a departure from previous under representation. The past three years alone have seen thousands of women enrolling in litigation, indicative of changing perceptions and opportunities within the legal sphere.

Crucially, this transformation is bolstered by the tremendous support cultivated by Judges in the Kerala High Court. Their encouragement empowers women lawyers to engage robustly with legal matters, fostering a conducive environment for professional growth and equitable representation.

Your accomplishment as a Senior Advocate sets a precedent for aspiring women lawyers. What advice or guidance would you offer to young women lawyers aspiring to reach similar heights in their legal careers?

Firstly, there are no shortcuts to success; litigation demands unwavering commitment, dedication, and perseverance. My personal routine, often extending pastmidnight, could be taken as an indication to the rigorous nature of legal practice. In my case, the unwavering support of my late husband was also instrumental in navigating the intricate balance between personal and professional spheres so I would also recommend that lady lawyers who want to sustain the long haul be cautious of whom they choose as life partners. Partners who would understand the struggles and demands of litigation would be greatly helpful in shaping your career.

Reflecting on your experience, what do you consider as the most fulfilling aspect of being a Senior Advocate in the Kerala High Court? How do you believe your role contributes to the broader legal landscape and society as a whole?

Reflecting on my journey, the designation as a Senior Counsel remains a humbling acknowledgment of my dedication and expertise, particularly given its discretionary nature at the time I was designated. Back then, applications were not invited and a lawyer would be designated as Senior Counsel only if the Judges made a choice to appoint an advocate as one. However, beyond personal accolades, the true fulfilment stems from the enduring trust bestowed upon me by clients, reaffirming the impact of my contributions to the legal fraternity.

Beyond individual achievements, my role extends to broader societal contributions through engagement in pro-bono cases. These endeavours are not merely legal pursuits but integral components of a collective quest for justice.

One of the most rewarding aspects of my career has also been witnessing the flourishing trajectories of my junior colleagues. Notably, two of my former juniors have ascended to positions as Judges in lower courts, while this year, three advocates who were once part of Dandapani Associates have been designated as Senior Counsels in the High Court. This brings the total count of senior counsels from Dandapani Associates in the Kerala High Court to eight. It gives me immense satisfaction to observe the progression of advocates who started their journey under the guidance of Dandapani Associates, now assuming esteemed roles as Judges and senior counsels.

As a trailblazer in the legal profession, what initiatives or changes would you advocate for to further promote gender diversity and inclusivity within the Kerala High Court and the legal community at large?

As explained above, there is already a remarkable evolution in gender representation and inclusivity within the Kerala High Court. Unlike the past, where women lawyers were a rarity, today, there’s a noticeable surge in women entering the legal profession. In the last three years alone, thousands of women have enrolled in litigation, marking a significant departure from previous norms.

This positive change is further reinforced by the supportive environment fostered by Judges and peers in the Kerala High Court. Their encouragement and recognition of the capabilities of women lawyers have played a pivotal role in creating opportunities for them to thrive. As a result, there’s already a palpable sense of empowerment among women lawyers and I would only hope that this trend grows in strength with time.

Over the years, I’ve also actively sought to include more women lawyers in my office. I strongly advocate for prestigious offices to adopt a similar approach, ensuring a welcoming environment for women lawyers and providing them with equitable opportunities in litigation.

I would like to mention that now since there are several avenues to choose from within the legal profession, women lawyers are able to make empowered choices in terms of which field of law suits them best given their personal preferences and values. From Zia Mody, to Indira Jaising to Karuna Nundy, we have women in top positions, whether it be the corporate legal world or litigation, who are instrumental in positively impacting the collective legal landscape.

Throughout your career, you’ve likely encountered various legal cases and challenges. Can you share a particularly memorable case or achievement that has had a significant impact on you personally and professionally?

Throughout my career, I’ve encountered a myriad of legal cases and challenges, each contributing to my growth and evolution as a lawyer. It’s difficult to single out one particular case as the most impactful, as every case holds equal significance for me.

Every case, whether exhilarating or daunting, has left an indelible mark on my professional journey. Beyond the immediate emotions they evoke, each case has been a profound learning experience, enriching my knowledge and skills in diverse aspects of the law. Consequently, I cherish every case I’ve handled, as each has contributed uniquely to my repository of legal expertise and shaped me into the lawyer I am today.

Looking ahead, what aspirations or goals do you have for yourself and for the advancement of women in the legal profession within Kerala and beyond?

Reflecting on my journey, I find myself in a position where I can proudly and humbly say that I have achieved much of what I set out to accomplish. I am filled with a sense of fulfillment knowing that I have navigated through the complexities of the legal landscape and emerged successful. Each trial, each victory, and even each setback has contributed to my growth and shaped me into the advocate I am today.

Now, my aspirations are simple. I aim to continue serving the legal profession in the best way possible, leveraging my experience and expertise to uphold the principles of justice. Whether it be through representing clients diligently or mentoring aspiring lawyers, my commitment remains unwavering. In essence, while my journey may have had its ups and downs, I am content in knowing that I have already achieved much of what I once hoped for. Moving forward, my focus is on maintaining the highest standards of professionalism and integrity, ensuring that I continue to make a meaningful impact in the legal arena.

Our Profession is the only Profession which can help People of all Walks of Life

Senior Advocate V.P.Seemandini, one of the two pioneer woman lawyers who was conferred Senior Advocate Designation by the High Court of Kerala shares her wealth of experience.

As a designated Senior Advocate with extensive experience in the legal field, could you share some insights into the challenge you’ve encountered as a woman lawyer throughout your career journey? How have these challenges shaped your approach to advocating for gender equality within the legal profession?

I started my practice from November 1976 onwards. During my initial period of practice, my experience, was that the men lawyers are not so happy with the women lawyers, coming up in the legal profession. I also noticed that, both men and women clients are not confident in entrusting their brief to women lawyers, probably because, during those periods, people were entertaining a strong impression that, only men lawyers are capable of handling cases (Civil, Criminal, Service and Constitutional matters).

As time passed by, I must admit that as a lady advocate, I never encountered any challenges from lawyers (juniors or seniors) and from my clients (both men and women). Thus, there is no gender inequality within the legal profession. Fortunately for me, from the very beginning of my career, I got maximum encouragement and opportunities for arguing cases.

You’ve expressed concerns about the disparity in the number of senior women lawyers in the Kerala High Court. What, in your view, are some of the underlying reasons behind the reluctance of women lawyers to apply for senior positions, despite their competence and eligibility?

Majority of women lawyers (including me) are against the newly introduced interview for designating senior lawyers. Majority women lawyers will have unavoidable family responsibilities, connected with their home, children etc., preventing them from taking up heavy responsibilities of senior lawyer. In very few cases, their husbands may not be interested, in their life partner taking up such heavy professional responsibilities, along with their family responsibilities of bringing up their children.

Given your role as the President (Southern Region) of the International Federation of Women Lawyers, what initiatives or strategies do you to propose to encourage and empower more women lawyers to pursue senior positions within the legal fraternity?

As and when possible, I, along with the founder President of AIFWL (All India Federation of Women Lawyers) used to meet women lawyers with high calibre and having active practice in various High Courts in India.

We made it a point, to attend without fail, all the biennial conferences that were/are being hosted in all States in India, to encourage all women lawyers in India, to come up in their profession.

Effective steps were/are being taken by us, by requesting Hon’ble Chief Justice of India and Central Law Minister, to empanel more and more women lawyers (having regular practice in the High Courts and Supreme Court) as Central Government Pleaders and as Standing Counsel for Central Government as well as Central Government owned institutions/establishments.

As a matter of fact, we have passed several resolutions and sent those resolutions to the Bar Council of India as well as the State Bar Council to appoint more women lawyers in the Managing Committee of Bar Council of India and State Bar Councils.

Reflecting on your designation as a Senior Advocate, can you shed light on the importance of proactive measures such as suo motu designation of senior women lawyers by the High Court, as observed in the recent ground-breaking decision by the Supreme Court?

I fully agree with the views expressed by the Hon’ble Supreme Court, for designating more women lawyers in the various High Courts in India, mainly for the reason that, as a matter of common practice, and human physiology,the clients are always interested in entrusting cases involving constitutional issues; service matters etc., only to men lawyers (both senior and junior). Women lawyers are being preferred only for conducting matrimonial cases.

Considering the recent amendments to the High Court of Kerala (Designation of Senior Advocates) Rules, how do you perceive the effectiveness of the points-based system for assessing candidates and the criteria for designation as a Senior Advocate, particularly in fostering gender diversity and inclusivity?

Frankly speaking, I am very much for following the previous practice of conferring Senior Advocate position, based on the multifarious nature of cases (Civil, Criminal, Constitutional, Service matters etc.) conducted by the concerned lawyers. According to me, only by following such procedure, more women lawyers, can be conferred senior status, depending upon their area of practice in various subjects.

Throughout your illustrious career, what achievements or contributions are you most proud of in promoting the rights and representation of women within the legal profession and the broader society?

To be honest with you, I should say that the most welcoming and attractive aspect of my career, as a lady lawyer, is the chances which I got to serve the society as a whole, more particularly, women and children who are suffering with so many legal issues concerning their family, property etc.

Throughout my career as a lawyer, in my capacity as office bearer/member of KFWL, All India Federation of Women Lawyers, as also Regional Vice-President of International Federation of Women Lawyers, I had the advantage of conducting legal literacy classes to the downtrodden mass situated in remote villages.

Victim Right Centre (VRC) introduced as part of legal literacy programme by Hon’ble Mr.Justice Muhamed Mustaque of the Kerala High Court has given solace to several women victims suffering in the various Jails in Kerala State.

As a lawyer, I had been associated with few charitable organization; giving protection to women and children functioning in Kerala State. Sree Narayana Sevika Samajam is one such organization which is a rescue home for destitute women and children, registered under Charitable Societies Act, including an Old Age Home for old and infirm women, recognized by the Social Welfare Department of Kerala State. At present, we are giving shelters to 238 women and children irrespective of their caste or creed.

I am the committee member of a women’s organization namely “Cultural Academy for Peace”, (a Government run institution) which is conducting the following welfare centers: 1. Shanthibhavan (women rehabilitation and care and support center). 2. Sakhi counseling center. 3. Community College for dropout women and girls. 4. Village integrated development program in various villages for women 5. Community mediation center.

According to me, our profession is the only profession which can help people of all walks of life.

Looking ahead, what are your aspirations for the future of women lawyers in Kerala, and how do you envision leveraging your position and influence to advance these aspirations?

I am of the strong view that, future of women lawyers in Kerala are very prosperous and to my knowledge, majority of women lawyers are hard working and socially committed and interested in spending their time and energy for the upliftment of illiterate women, toiling hard day and night, in the remote villages in various State. To support the advancement of woman lawyers I plan to promote them, by actively involving them in all activities of KFWL, AIFWL and FIDA (International Federation of Women Lawyers). Additionally, I aim to involve them in taking legal literacy classes in the remote village in the State and by taking classes on recent decisions of Supreme Court and High Court on issues involving the protection of women and children. Furthermore, encourage them to attend regularly and continue legal education classes, conducted by eminent personalities practicing in various Courts in India, on topics which are relevant for all practicing lawyers.

Do not let your Gender Define the Work you do

In conversation with the newly designated Senior Advocate Dhanya P. Ashokan

As the single woman lawyer designated as a Senior Advocate after a period of over 15 years, could you kindly share some of the challenges specific to your journey as a woman lawyer in attaining this prestigious position? Additionally, how did you navigate and overcome these challenges to achieve this milestone?

A woman is often seen as a wife, mother, daughter, sister, but rarely as an individual who has a personality of her own. The path I traversed to become a Senior Advocate wasn’t a bed of roses. Patriarchy from time immemorial has imposed gender roles, which makes it seem that it is a mother’s “duty” to be attentive to her children, take care of their personal, curricular and co-curricular, and social needs. At the same time a father who does the same things is applauded for doing a commendable job, while the society fails to realise parenting is an equal job. At this juncture, I would like to say, having an equal parent as a husband was my biggest support. The initial years of my practice was having to handle 2 full time jobs—that of a mother of a new-born and a small child, that of a junior lawyer. The uphill battle of having to attend to my kids’ daily needs, running to their schools and also managing casefiles and research and the heavy law books was a tough row to hoe. But I can confidently say, I had strong pillars supporting me through my struggle. My family and my faith. I believe, regardless of how difficult circumstances are, it is ultimately the curiosity in you and the desire to attain more knowledge that is most important for a lawyer. The very same curiosity and desire, and the strong belief that the path of my career is not defined by my gender but my ability and willingness to work is what that took me here.

Discrimination is not limited to the legal arena, but it is quite unfortunate that a field that fights for justice ends up having such a wide disparity. What I’d like to say is, do not let your gender define the work you do. This is a fight for our right to provide equal service. The service that we as women provide as lawyers to the public, is no less but at par with any other gender. Let your determination and hardwork push you.

What motivated you to apply for the designation of Senior Advocate, and who encouraged you the most in this pursuit? Additionally, what do you believe sets you apart as a candidate for this position?

My father was not only the fuel but also the fire that pushed me to my financial independence. Even though the commencement of my career was post the passing away of my beloved father, the path he paved while leaving his legacy, is the same I followed, though life had showered unprecedented hurdles in between for me to overcome. It was my father’s principles and values that guided me throughout my journey. But regardless of that, I hold a firm belief that it is your own determination and hardwork that takes you forward. You have to earn your title, claim it with passion and courage. No one confers the title on you, it is earned, it is achieved. My husband, who is also a practising lawyer, has been my biggest support system. His companionship and encouragement is what made me realise how important law as a subject is to me and how it is my passion. His presence has been a constant drive for me to achieve my best.

In your opinion, what initiatives can be implemented to encourage more women lawyers to apply for senior positions within the legal profession?

The first initiative, always, is stepping up. It is the fear, an insecurity or thought that “I might not be as good as the male counterparts, as I don’t see any woman senior” is what holds them back from applying. My firm belief that my work is not better but is no less than my counterparts is what made me step up and I hope this step acts as the first link to a chain reaction. Educating the women lawyers that the value of their work and effort is not dependent on their gender is also quite important for achieving more participation. And, finally, something I’d like to encourage the male counterparts to do is to support women lawyers to step up. Women are not a competition to your stature, but a valuable addition of service to this noble profession.

How do you envision leveraging your role as a Senior Advocate to support and mentor other women lawyers in their careers?

As I said before, stepping up for this post is my first endeavour into encouraging other women to step in. Apart from that, it is my work that I’d like to put forward as an example as I don’t deem my work to be better than others but to make them realise that their work is as worthy as anyone else’s. I want women to recognise their worth and I would like to not lead, but to hold their hands and be a friend, to walk together and help them walk together with me into achieving the dream of showcasing the value of our works without it being belittled on the basis of our gender.

Could you highlight some of the significant cases or contributions you’ve made to the legal field, particularly in areas of your expertise? Is there any special case that stayed with you or has left a lasting impression on you?

I had the opportunity to argue in several significant cases before the Hon’ble High Court of Kerala, which culminated in reportable judgments that had its own profound impact on legal precedent and social justice. I am citing a few here. One of the cases ruled that if parties live together by virtue of a registered agreement, that by itself would not entitle them to claim it as a marriage and claim divorce. In another decision, I advocated for contractual women employees to be entitled to maternity benefits, which resulted in a favourable judgment and ultimately led to the issuance of a Government notification granting six months of maternity leave for all contractual employees. I believe I played a role in expanding the definition of “Establishment” under the Maternity Benefit Act to include establishments as defined by any relevant State law, ensuring broader coverage for maternity rights. Furthermore, I argued against the use of artificial breaks in service between contracts to deny maternity rights to employees, emphasizing the importance of fairness in employment practices and the Court reciprocated in the following way that short artificial breaks in service between successive contracts cannot be used as a device to deny maternity rights to the employees. In a proceeding under the Domestic Violence Act, I emphasized the consequences of non-compliance with maintenance orders, which resulted in the ruling that defence can be struck off for non-compliance with an order of payment of pendente lite maintenance, if the default is found to be wilful.

However, one of the cases that has stayed with me or I’d say has had a lasting impression on me is a Writ Petition filed seeking the relief of Writ of Mandamus against the District Medical Officer (DMO), Thrissur to constitute a Medical Board to evaluate and submit a report of the treatment given to the son of the writ petitioner in a private hospital and the chances of his future treatment if any. I knew that it was an experimental writ. But the faint hope of saving the petitioner’s son’s life drove me to file the same. The petitioner’s son had met with an accident. He had severe head injuries and was admitted in a private hospital and had been under treatment for about 5 months. About 20L had already been spent for his treatment with the help of a social charity committee. One unfortunate day, the petitioner’s son was removed from the ventilator by the hospital authorities and they stopped all life supporting medicines thereafter expressing their helplessness in his future treatment and asked his family to await his death within a few hours. Quite shockingly, fortunately I’d say, his readings remained normal post removal from the ventilator. This is when the petitioner approached me to take action against the hospital authorities. Call it the selfish or unqualified desire of a mother to save a child’s life, it is the impending threat to his life that bothered me at that moment over the actions of the hospital authorities, which is precisely why I proceeded to prepare a Writ Petition of this nature. Ensuing which, the Hon’ble High Court of Kerala directed the DMO to ascertain the patient’s condition then and to find out whether it was possible to afford a shifting to another hospital, and if found conducive, directed further to make arrangements for the same. After receiving the report, this Hon’ble Court directed to arrange for an ALS Ambulance with oxygen and suction facility and the service of a pulmonologist and a trained nurse to shift the patient to Medical College, Thrissur. After about 3 months, with the expertise of the doctors, God’s grace and fate’s supportive hands, the child returned back to his life, to normalcy from the vegetative state he was expected to be in before. This was a pro bono case for me. A lawyer’s profession is that of service and as Kane Morgan quite intriguingly said, sometimes to become a lawyer, we must become an eloquent devil that views justice as God and with that goal, we try paths that may not have been opted by others. For me, this writ was as such, an experiment as I said, a risk I was willing to take. Nonetheless, the petitioners instead of seeing me as the eloquent devil, sees me as someone who gave back their son’s life, a miracle I would refuse to take to my credit, but I would selfishly, quite confidently take the child’s smile to my credit. When I see the child, whom I once saw wired up in a ventilator, breathing—living, as a healthy child brings tremendous joy even today. This more than being a professional achievement, has been a personal one and has always left me in awe of how much service we as lawyers can do to humanity and mankind. These experiences have reinforced my commitment to advocating for equality and justice within the legal system.

Considering the disparity in the number of women designated as Senior Advocates in the Kerala High Court, what strategies do you propose to address this imbalance and promote gender equality within the legal profession?

As per Kerala Bar Council data, there is roughly 1 female advocate for every 2 male advocates in the State. This proportion comes down to 3 to 80 when it comes to the number of senior advocates. Two pertinent questions we should ask here is: 1) Why are women applicants so less? 2) Is it only because the applicants are less, or is there any other factor beyond that preventing them from being selected?. Only a collective attitude that women must be represented if not equally but at least adequately or proportionately and a profession of service needs more “hands”, and not just a particular gender’s hands to extend justice is what that would promote equality in my opinion. This attitude must stem from the excellent minds of Judges, Senior Advocates, other legal professionals and most importantly the new generation of young lawyers.

Blowing Hot and Cold about the CRZ II Status of
109 Grama Panchayaths !

(Coastal Regulation Zone Notification 2019 - Coastal Zone Management Plan in Kerala)

(By Sherry J. Thomas, Advocate, High Court of Kerala)

The history of regulation

A great many local inhabitants are facing hardships for construction of their dwelling houses due to regulations in connection with Coastal Regulation Zone notifications (hereinafter referred as CRZ) time to time. Obviously, first CRZ Notification came in the year 1991 and thereafter 2011 and finally in January, 2019. As per the provisions of the Notification, unless and until Coastal Zone Management Plan (hereinafter referred as CZMP) is prepared, the existing Notification will prevail and the benefits of the new Notification will not be made available to the public. As on today, the prevailing Notification for regulation of building permits is of CRZ 2011 Notification by the erstwhile Ministry on 6.1.2011.

Relaxation in regulations

During the pendency of erstwhile notification, Ministry received representations from various Coastal States and Union Territories besides other stakeholders and accordingly a committee was constituted under the Chairmanship of Dr.Shailesh Nayak to examine various issues and concerns of coastal States and to recommend appropriate changes in the said Notification. Thereafter upon the recommendations, several changes were carried out in the 2011 Notification and a new Notification CRZ 2019 is issued in supersession of the Coastal Regulation Zone Notification 2011. Despite of the same, the benefits of CRZ 2019 Notification is not available to the coastal people, because, as per the clause 6 in the CRZ notification 2029, it will be implemented only on preparation of Coastal Zone Management Plan (CZMP) which is not yet prepared.

The clause 6 of CRZ Notification 2019  read so-

Clause 6: Coastal Zone Management Plan (CZMP) – (i) All coastal States and Union territory administrations shall revise or update their respective coastal zone management plan (CZMP) framed under CRZ Notification, 2011 number S.O. 19 E, dated 6th January, 2011, as per provisions of this notification and submit to the Ministry of Environment, Forest and Climate Change for approval at the earliest and all the project activities attracting the provisions of this notification shall be required to be appraised as per the updated CZMP under this notification and until and unless the CZMPs is so revised or updated, provisions of this notification shall not apply and the CZMP as per provisions of CRZ Notification, 2011 shall continue to be followed for appraisal and  CRZ clearance to such projects.

Now the situation in Kerala is that all the activities in CRZ areas are halted due to the pendency of finalization of CZMP. Obviously that the non-completion of finalization process of CZMP for the CRZ Notification 2019 which is published in January 2019 is not because of the fault of the Coastal people.

Applicability of CRZ - Zone II

The regulations in coastal regulations on notification will vary based on the particular zone in which the land is categorised. If the land is in CRZ zone II category, constructions are permissible on the landward side of existing authorised structure or existing Road.
Ipso facto, if a local body is included in CRZ II category in the coastal zone management plan, they can claim this benefit. It is true that nowhere in the notification, the categorisation is fixed on identification of local body; whereas, it is on the basis of the fact that whether the local body comes under the category of ‘legally designated urban area’.

In order to include many coastal Panchayats under this category for minimising the restrictions in the regularisation,  the State Government issued an order dated 6.10.21 by exercising powers conferred by Rule 3(6) of the Kerala Panchayat Building Rules 2019 notifying several Grama Panchayats as Category I Village Panchayats. The CRZ II category is meant for the legally designated urban area and 175 Coastal Grama Panchayats, will be treated as legally designated urban area. Many of the coastal Panchayats in Kerala is included in the list of 175 Panchayats. The Expert Committee Constituted by State Government recommended to categorize 175 Coastal Panchayats as CRZ II Category. There is criticism on this point that under the guise of enabling the right to home of coastal inhabitants, now the State Government is opening the coastal area to all commercial activities respective whether they are local inhabitants or coastal community, and it will dilute the purpose of regulation itself. At the same time there are arguments that right to property is a constitutional right and by way of this notification, this right is being curtailed for more than three decades and therefore the coastal people are eligible to use their land like any other land holder in the country.

The list 175 vs. 66

As a matter of fact, in order to avail the benefit of CRZ II for many of the coastal Panchayats, the Government of Kerala made a representation to the NCZMA (National Coastal Zone Management Authority) related to CZMP (Coastal Zone Management Plan) pointing out that the term ‘legally designated urban areas’ is not defined under CRZ Notifications and therefore the ‘Urban Areas’ designated by the Acts or Rules or the Census Towns may be considered as ‘legally designated urban areas’ for the purpose of CRZ Notification. However NCZMA vide Agenda No.4.6 of 45th meeting held on 1.7.2022 recommended that only 66 Category I Coastal Grama Panchayats notified before the date of Notification of CRZ Notification 2019 will be considered for the approval by the Ministry as legally designated urban areas as per CRZ Notification 2019. The meaning is clear that those Panchayats remain as Category I on the date of CRZ Notification 2019 will be included in the CRZ II Category and the rest 109 Panchayats will not be included in the list. There is no reasoning for considering classification as on the date of issue of CRZ 2019 Notification.

Undisputedly, as per clause VI of the CRZ 2019 notification unless and until CZMP is prepared for CRZ 2019, the said notification cannot be implemented and existing CZMP of 2011 Notification is prevailing. Therefore, the question to be mooted is that, even now the CZMP of 2019 Notification is not implemented and the date of urbanization has to be calculated from the date of finalization of CZMP not on the date of issue of CRZ 2019 Notification. If the date of finalisation of CZMP is considered, the rest of 109 Grama Panchayats are eligible for counting in CRZ II category.

Yet another aspect is that the guidelines for preparation of CZMP is published as Annexure IV of CRZ Notification 2019. The Paragraph 5 of the Guidelines dealt with classification of CRZ Areas. It is unambiguously stated that the verification shall be based on the latest satellite imagery and ground truthing.

The authorities cannot blow hot and cold as against the right of coastal people. For implementing the New Notification, the authorities are on a stand that the CZM Plan is not yet ready and for considering the categorisation of local bodies which is imperative while preparing plan, they says present status of 109 Panchayats cannot be included as it was not in urban category on the date of CRZ notification 2019. Trite law is that the category available at the date of preparation/finalization of the CZMP, to be considered. The plan itself must be revised every 5 years and the latest status of local bodies should be reflected, for a just consideration.

The relaxation in CRZ Notification 2019, on various aspects was notified with an intention to reduce the difficulties for local communities in construction of their homestead.  The Dr.Shailesh Nayak Committee which was specifically appointed for this purpose recommended to relax the restrictions and accordingly the distance of NDZ is reduced on various categories. Evidently in the CRZ 2019 Notification the NDZ is generally reduced 50 metres in case of water bodies other than sea.

Implementation of latest notification

The implementation of CRZ 2019 Notification will be effective only after the finalization of Coastal Zone Management Plan of the same. The guidelines for preparation of CZMP is published as Annexure IV of CRZ Notification 2019. The Guideline 3(v) says, classification of different coastal zones shall be done as per the CRZ Notification and standard national or international colour codes shall be used. Therefore, it is clear that the classification of categories are to take place while preparation of CZM Maps and not as on the date of issue of Notification. The Paragraph 5 of the Guidelines dealt with classification of CRZ Areas. The land use plan of the area is to be considered. The Para 5(vii) is specific on the point that, “The existing authorized developments on the seaward side shall be clearly demarcated”. The revision of CZMP is also possible as per Para 7 of the Guidelines. It is stated that the verification shall be based on the latest satellite imagery and ground truthing. Therefore, the denial of categorization of CRZ II in connection with 109 Panchayats cannot be construed as legal. The date of issue of Notification is not the criteria, whereas as the latest ground truthing and legal status has to be taken in to account.

Delay in finalizing coastal zone management plan

The State Government is bound to prepare the plan enabling construction of dwelling units of local inhabitants as per the latest documents. Any delay in preparation of such plan may will be prejudicial to the right to home of the coastal people. Comparatively lesser restrictions are incorporated in the 2019 Notification, with an intention to reduce the rigour of regulation so as to enable construction of houses for local inhabitants. In the new Notification, the NDZ is reduced to 20 metres in case of back water islands. The dwelling houses of local inhabitants are also permissible. Therefore, the coastal people are entitled to get the benefit of reduced distance rule in the latest notification. The Honourable Supreme Court in Trilok Chand V. State of Himachal Pradesh (2019 (4) KLT OnLine 3232 (SC) = (2020) 10 SCC 763) held in a case in connection with Prevention of Food Adulteration Act 1954, relied on a previous decision wherein it was opined that, since the amendment was beneficial to the accused persons, it could be applied to earlier cases pending before the courts. In so far as the central amendment reduces the punishment for an offence, there is no reason why the accused should not have given the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of law. The principle is based on sound reason and common sense. This finds support in the following passage from Craies on Statute law 7th Edition at pp 388-89-

“ A retrospective statute is different from an ex post facto statute. “Every ex post facto law....” said Chase, J., in the American case of Calder v. Bull “must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction…… There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.” (Paragraph 6).

The Honourable Supreme Court also held in Nemi Chand v. State of Rajasthan (2016 (1) KLT OnLine 2795 (SC) = (2018) 17 SCC 448) amendment which is beneficial can be applied even with respect to earlier cases.Therefore the NCZMA shall RECONSIDER the Agenda No.4.6 of  45th meeting dated 1.7.2022 on the basis of date of preparation of Coastal Zone Management Plan as per Annexure A IV guidelines so as to classify 175 Panchayats included in the  Government Order as CRZ II category.  It is also a matter of concern that the preparation of CZMP (Coastal Zone Management Plan) and classification of categories are based on the latest satellite imagery and ground truthing as per
Annexure IV guidelines published in CRZ 2019 Notification.

Furthermore, the restriction for construction of dwelling houses in the No Development Zone of CRZ Notification can be minimised by Incorporation of necessary disaster management provisions and proper sanitation arrangements as per Clause 5.3(ii)(a) of CRZ 2019 Notification. But such provisions are not yet included in the existing draft plan. Therefore, the dream of coastal community to utilise their property for construction of dwelling houses even if it falls under No Development Zone (NDZ) of Coastal Regulation Zone Notification is left unattended.

(This article is based on the latest updates as on 29.02.2024)

JUSTICE ANU SIVARAMAN BIDS ADIEU TO KERALA HIGH COURT:

HER JOURNEY SO FAR

(By Adv. Ashly Harshad, Assistant Editor, KLT)

On the 18th March, 2024 Center notified the transfer of Justice Anu Sivaraman from High Court of Kerala to High Court of Karnataka following a Supreme Court Collegium recommendation accommodating her request. As many lawyers expressed, it will be a loss to the Kerala High Court and a gain to the Karnataka High Court.

Justice Anu Sivaraman, the youngest among the four children of late Mr.Justice V.Sivaraman Nair and Mrs. Nalini Sivaraman was born on May 25, 1966, in Ernakulam. She pursued her schooling at St. Teresa’s Convent Girls High School, Ernakulam and attended St. Teresa’s College for pre-degree before advancing to Maharaja’s College, Ernakulam from where she graduated in English Literature in 1986. She became a Diploma holder in Journalism from the prestigious Kerala Press Academy in 1987. Driven by a passion for legal advocacy, she furthered her studies by pursuing law from Government Law College, Ernakulam. With her enrolment as an advocate on 09.03.1991 a foundation for an illustrious legal career was laid.

Career as a lawyer

As part of her chamber work, she had attended the office of Late Mr. P. Ramakrishnan Nair, a civil lawyer of Kerala High Court. She started practice by being a part of the office headed by Senior Advocate Mr. P. Ravindran, who is her brother in law – her only sister’s husband. She was a Senior Government Pleader from 2006 to 2010. She also served as the Special Government Pleader (Co-operation) during the period from January 2010 to August 2011. For 10 years during the period from 2001 to 2011 she was a Standing Counsel for the Kochi Corporation as well. As a lawyer she has proved her expertise in different laws and has been articulate both in her drafting and arguments. (Excerpts from the speech delivered by the then Advocate General of Kerala, Late Shri K.P.Dandapani in the Full Court Reference held in the High Court of Kerala on 10.4.2015 during the elevation of Justice Anu Sivaraman as the Judge of High Court of Kerala (2015 (2) KLT Journal 37-54).)

Judicial Career

Justice Anu Sivaraman was directly elevated from the bar and was sworn in as Additional Judge of the High Court of Kerala on 10.04.2015. Appointed as Permanent Judge of the High Court of Kerala with effect from 05.04.2017 she depicted dedication to justice, unwavering integrity, and profound wisdom. She has always strived to uphold the standards of fairness and excellence.

As a Judge of Kerala High Court she is often described as a considerate Judge due to her empathetic approach towards cases and litigants who come before her. Justice Anu Sivaraman takes up commendable efforts to ensure fairness and equity in her decisions, including the cases involving vulnerable populations or those facing difficult circumstances.

One such case was regarding the rights of transgender community and their enrollment with the National Cadet Corps. Interpreting the Transgender Persons (Protection of Rights) Act, 2019 and equality clauses of Constitution of India, the rights of the transgender person to join NCC was upheld. It was observed in Hina Haneefa v. State of Kerala (2021 (3) KLT 115) that,

“In view of the specific provisions in the 2019 Act by which a transgender person has a right to be recognized not only as a transgender but also a right to self perceived gender identity I am of the opinion that the petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrollment in the N.C.C. unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender. The fact that the provisions of the N.C.C. Act do not recognize the third gender or that detailed guidelines are required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps cannot, according to me, be a justification for denying admission to the petitioner to the NCC unit on the basis of the Identity Card obtained by her.”

Further, in Treasa Josfine v. State of Kerala (2021 (3) KLT 283), the challenge was regarding a provision in the employment notification which discriminated against women from applying to the post of safety officer. Justice Anu Sivaraman quashing the said provision in the notification observed that embargo contained in the notification that ‘only male candidates can apply’ is violative of the provisions of Articles 14, 15 and 16 of the Constitution of India and handed down the ruling that a woman who is fully qualified cannot be denied of her right to be considered for employment only based on her gender.

In Irene Immanuel v. State of Kerala (2021 (5) KLT 540) the issue was regarding the issuance of a community Certificate to a person form an OBC community, whose parents had migrated from the State of Tamil Nadu. The Court after hearing both the sides concluded that, in a case where the community is included in Other Backward Classes in both the State of origin as well as in the State of migration, it is obvious that a certificate can be issued by the competent authority in the migrated State for availing the benefits in the migrated State as well. Since the petitioners were admittedly born and brought up in Kerala and since the Other Backward Class to which they belong is included in the list of Other Backward Classes both in the State of origin as well as in the migrated State, the competent authority with regard to the place of birth and residence of the petitioners would have the jurisdiction to consider the issuance of community certificate to the petitioners.

There are several judgments to her credit which can be considered as valuable precedents on service law, Environment law, Taxation laws and the like.  

Her relationship with the bar was always cordial. Noted for her willingness to listen attentively to all sides of a case and to consider the broader context in which legal issues arise has garnered much appreciation among the bar members. Her demeanour on the bench is marked by a soft-spoken and considerate approach, which fosters an atmosphere of respect and co-operation within the courtroom. Lawyers who have appeared before her often praise her gentle manner of handling cases, finding her demeanour reassuring and conducive to open dialogue.

Transitions are part of life. On behalf of KLT we express our deepest gratitude for her service and wish her all the best in her future endeavours. May the journey ahead be filled with success, fulfillment, and the knowledge that her legacy will endure in the hearts and minds of those she has touched.

\nb-a-Ú·mtc ChnsS Hcp \nanjw !

(By  F.-]n.Fw sambvXp, I®qÀ)

GsXm-cmÄ¡pw \nb-a-¯n\p ap¼n ka-X-z-tam, Xpe-y-amb \nb-a-kw-c-£-Wtam \ntj-[n¨pIqSm-¯-Xm-sW¶p `c-W-L-S\ 14-þmw hIp¸v A\p-im-kn-¡p-¶p. Hcp ]uc\p Cu Ah-Imiw \ntj-[n-¡-s¸-Sp-t¼mÄ AhnsS aueo-Im-h-Imi ewL-\hpw, `c-W-L-S-\-tbm-Sp-ff shÃp-hn-fnIfpw {]X-y-£-s¸-Sp-¶p. {]tX-y-In¨p Hcp PpUo-j-y D¯-c-hn-eqsS kw`-hn-¡p-I-bm-sW-¦n {]iv\-¯nsâ Kuchw hÀ²n-¸n-¡p-¶p.

2024 (1)  sI.-FÂ.Sn þ 450-þmw\¼dmbn dnt¸mÀ«v sNbvXn-«p-f-fXpw, {Inan-\ BÀ.-]n.441-/2005-þ \¼-dn \ne-sIm-f-fp-¶-Xp-amb kucn-bmÀþV þap«w A_vZp-ff tIÊn _lp. tIcf  sslt¡m-SXn knwKnÄ s_©v ]pd-s¸-Sp-hn¨ D¯-c-hnse 20-þmw JWvUn-I-bnse {]Xn-]m-Z-y-amWv apJ-hp-c¡v Imc-W-am-bn-«p-f-f-Xv. sslt¡m-SXn D¯-c-hnse {]kvXpX 20-þmw JWvUn-I-bnse {]Xn-]m-Z-y-w AtX-]Sn ChnsS D²-cn-¡p-¶p.

20. In the result, the revision stands allowed as follows:

(i)    The judgment dated 19.10.2004 of the Additional Sessions Judge, North Paravur in Crl.Appeal No.96/2003, is hereby set aside.

(ii)   The 1st respondent (accused in C.C.No.561/1999 of Judicial First Class MagistrateCourt-I, Aluva) is found guilty of Section 417 I.P.C., and he is convicted thereunder.

(iii)  The 1st respondent (accused in C.C.No.561/1999 of Judicial First Class MagistrateCourt-I, Aluva) is sentenced to imprisonment till the rising of court and fine `1,00,000/- (Rupees One Lakh only).

(iv)  Out of the above fine of `1,00,000/-, if realized, an amount of `90,000/- (Rupees Ninety Thousand only) shall be paid as compensation to the petitioner (PW1 in C.C.No.561/1999) under Section 357(1)(b) Cr.P.C.

(v)  In the event of default of payment of fine, as directed above, the 1st respondent shall undergo simple imprisonment for a term of six months.

ta {]Xn-]m-Z-y-¯n \n¶pw FXnÀI-£nsb in£m \nb-a-¯nse 417-þmw hIp¸v  {]Imcw sslt¡m-SXn Ipä-¡m-c-\m-sW¶p IsI¯nsb¶pw {]kvXp-X- h-Ip-¸-\p-k-cn¨p tImSXn ]ncnbpwhsc XS-hpw, Hcp e£w cq] ]ngbpw, ]ng HSp-¡m-Xn-cp-¶m Bdp-amkw shdpw XS-hn\pw H¶mw FXnÀI-£nsb in£n-¨-Xmbpw hy-à-am-Ip-¶p. ChnsS ]ng HSp-¡m-Xn-cp-¶m Bdp-amkw shdpw XShv in£ \ÂInb sslt¡m-SXn D¯-chv in£m-\n-b-a-¯nse 65-þmw hIp-¸nsâ \á-amb ewL-\-atÃ?tImSXn hn[n-¡p¶ ]ng in£ HSp-¡m-Xn-cp-¶m \ÂtI-Ip¶ XShp kw_-Ôn¨v C´-y³ in£m-\n-b-a-¯nse 63 apX 67 hsc hIp-¸p-I-fn-embn  hni-Z-ambn hy-à-am-bn-«p-Iv. Ah hne-bn-cp-¯-s¸-Sp-t¼mÄ ta tNmZ-y-¯n\p ""AtX"" sb¶ D¯-c-amWv e`n-¡p-¶-Xv.

At¸mÄ {]iv\w Kpcp-X-c-am-Ip-¶p. B Ah-Ø-bn ]ng HSp-¡m-Xn-cp-¶m-ep-ff XShp in£m-hn[n kw_-Ôn¨ \nb-a-h-y-h-Ø-IÄ AtX-]Sn D²-cn¨p sImIv hkvXpX t_m[-y-s¸-Sp-¯m³ \nÀ_-Ôn-X-\m-Ip-¶p-Iv. in£m \nb-a-¯nse 64-þmw hIp-¸mWv ]ng HSp-¡m-Xn-cp-¶m  XS-hp-in£ hn[n \ÂIp-¶-Xn-\p-ff A[n-Imcw tImS-Xn-IÄ¡p \ÂIp-¶-Xv. {]kvXpX hIp-¸v F´p ]d-bp-¶p.

“64. Sentence of imprisonment for non-payment of fine.—In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine.

it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.”

XpSÀ¶p XS-hp-in-£-bpw, ]ng-in£bpw \ÂIm-hp¶ tIÊp-I-fn ]ng in£ am{X-amWv hn[n-¨--sX-¦n AXv HSp-¡m-Xn-cp-¶mep-ff ]c-am-h[n in£ \nb-a-¯nse 65-þmw hIp-¸nepw hni-Z-am-¡p-¶p.

65. Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable.—The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine”.

CXn \n¶pw XS-hp-in-£-bpw, ]ng-in£bpw \ÂIm-hp¶ tIÊp-I-fn ]ng in£ am{Xw \ÂIn-bm B Ipä-¯n-\p-ff ]c-am-h[n XShp in£-bpsS \men-sem¶v XS-hp-in-£sb ]ng HSp-¡m-Xn-cp-¶-Xn-\p-ff XShv in£-bmbn \ÂIp-hm³ ]mSp-f-fq-sh¶v hy-à-am-Ip-¶p. in£m-\n-b-a-¯nse 67-þmw hIp¸nse hy-hØ IqSn ]cn-tim-[n-¡p-t¼mÄ ta hkvXpX kwi-bm-Xo-X-hn[w t_m[-y-s¸-Sp-¶-Xm-Wv.

“67. Imprisonment for non-payment of fine, when offence punishable with fine only.—If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case.”

ta {]Xn-]m-Zn¨ \nb-a-h-y-h-Ø-I-fpsS hni-Zo-I-c-W-¯n \n¶pw ]ng am{Xw Ipä-¯n-\p-ffin£-bmbn hn[n-¡m-hp¶ tIÊp-I-fn ]ng HSp-¡m-Xn-cp-¶m in£m \nb-a-¯nse 67þmw hIp-¸n {]Xn-]m-Zn¨ ]c-am-h[n XShpw, XS-hpw, ]ngbpw in£-bmbn hn[n-¡m-hp¶ tIÊp-I-fn ]ng am{X-tam, Asæn ]ng-bpw, XShpw \ÂIn in£n-¡-s¸-Sp-I-bm-sW-¦n-tem, ]ng HSp-¡m-Xn-cp-¶m in£m \nb-a-¯nse 65þmw hIp-¸n {]Xn-]m-Zn¨ ]c-am-h[n XS-hpw \ÂIp-¶-Xn-\p-ff A[n-Im-ctam tImS-Xn-IÄ¡p \nbaw A\p-h-Zn-¨n-«p-f-fq-sh¶p t_m[y-am-Ip¶p

Cu teJ-\-¯n ]cm-aÀin¨ tIÊn _lp. tIcf sslt¡m-SXn knwKnÄ s_©v H¶mw FXnÀI-£nsb I.P.C. 417-þmw hIp¸p {]Imcw Ipä-¡m-c-s\¶p IsI-¯p-Ibpw {]kvXpXhIp¸p {]Im-c-ap-ff in£-bp-amWv \ÂI-s¸-«n-cn-¡p-¶-Xv. AXn-\m in£m \nb-a-¯nse 417-þmw hIp-¸-\p-k-cn-¨p-ff ]c-am-h[n in£ F{X-bmsW¶p ChnsS ]cn-tim-[n-t¡-I-XpIv.

in£ Hcp hÀjs¯ ]c-am-h[n XS-thm, ]ngtbm AsÃ-¦n cIpw IqSntbm BIp-¶-Xn-\m ]ng in£ am{Xw {]Xn-]m-Zn-¡p¶ Ipä-]-cn-[n-bn in£m \nb-a-¯nse 417-þmw hIp¸v DÄs¸-Sp-¶n-Ã. AXp-sImIv ]ng HSp-¡m-Xn-cp-¶-Xn-\p-ff XShv in£¡v \nb-a-¯nse 67-þmw hIp¸v _m[-I-am-Ip-¶n-söpw, adn¨p 65-þmw hIp-¸nsâ ]cn-[n-bn-emWv hcp-I-sb¶pw hfsc hy-à-ambn hkvXp-X-IÄ t_m[y-s¸-Sp-¯p-¶p. ]t£ ]ng kwJy Hcp e£w cq] HSp-¡p¶XnÂhogvN hcp-¯n-bm \nb-a-{]-Imcw aq¶p-amkw ]c-am-h[n XShv \ÂtI-In-S¯v _lp: sslt¡m-SXn \ÂInb XShv Bdp-am-k-am-Wv. Cu kml-N-c-y-¯n-emWv {]kvXpX D¯-c-hn\p \nb-a-km-[p-X-bn-söp IsI-¯n-b-Xv.

\nb-a-¯n {]Xn-]m-Zn¨ ]c-am-h[n in£-bn Ihnª in£ \ÂIp-¶-Xn\p sslt¡m-S-Xn-IÄ¡v \nbaw {]tX-yIw A[n-Imcw \ÂI-s¸-«n-«n-Ã. {Inan-\ \S-]-Sn-N-«-¯nse 28-þmw hIp-¸nse {]Xn-]m-Z-y-¯n-eqsS AXv hy-à-am-¡-s¸-«n«p-Iv.

“28. Sentences which High Courts and Sessions Judges may pass.—

(i)  A High Court may pass any sentence authorised by law.

(ii)  .......................................................................................”

dnhn-j³ lÀPn-bn-t·-ep-ff sslt¡m-SXn knwKnÄ s_©nsâ D¯-c-sh¶ \ne-bn sXäv kw`-hn-¨n-«p-sI-¦n kzbw Xncp-¯p-hmt\m, dnhyq sN¿p-hmt\m \nbaw A\p-h-Zn-¡p-¶n-Ã. kvs]j-y eohv s]äo-j-\p-ambn H¶mw FXnÀI-£n¡v _lp.kp{]ow-tIm-S-Xnsb kao-]n-¡p-I-sb-¶Xv am{X-amWv \nb-a-]-c-amb GI]cn-lm-c-amÀ¤w. ]t£ AXn-hnsS Hcn-¡epw kw`-hn¡m-\n-S-bn-Ã. ImcWw ]e X-h-W-I-fmbn Ah-kcw \ÂIn-bn«pw H¶mw FXnÀI-£n sslt¡m-S-Xn-bn¯s¶ t\cnt«m, A`n-`m-j-I³ aptJ-\tbm lmP-cmbnÃ. lÀPn-¡m-c³ `mKw A`n-`m-j I-sâbpw, Kh¬saâv ]»n¡v t{]mkn-I-yq-«-dp-sSbpw hmZ-§Ä tI« tij-amWv Cu tIÊn sslt¡m-SXn D¯-chv ]pd-s¸-Sp-hn-¨n-cn-¡p-¶-Xv.

ta kml-N-c-y-§-fn H¶mw FXnÀI£n ]ng HSp-¡msX Bdp-amkw XShv A\p-`-hn-¡m³ X¿m-dm-Ip-I-bm-sW-¦n Hcp PpUo-j-y D¯-chv `c-W-L-S\ 14-þmw hIp-¸-\p-k-cn-¨p-ff Hcp ]ucsâ aueo-Im-h-Im-i-ew-L-\-¯n\p hgn Hcp-¡p-I-bntÃ. Cu AhØ Hcn-¡epw krjvSn-¡-s¸-Sm-\-\p-h-Zn¨p IqsS¶ e£-y-t¯m-sS-bmWv Cu {]iv\w \nb-a-]-WvUn-X-cpsS {i²-bnÂs¡mIp-h-cp-¶-Xn-te¡p hgn-sbm-cp-¡n-bn-«p-f-f-Xv. Cu teJ-\-¯nsâ GI Dt±-i-hpw, AXv am-{X-amWv AXp-sImIv H¶p-In Cu teJ-\-¯n-eqsS {]I-S-am-¡n-bn-«p-ff \nb-a-{]-iv\§Ä sXäv AXà icn-bm-sW¶ ho£W¯nem-sW¦nÂ,  H¶mw FXnÀI£n XShv A\p-`-hn-¡m³ Hcp-§p¶ kmlN-c-y-sa-¦nÂ, PpVo-j-y D¯-c-hn-eqsS kw`-hn-t¨-¡m-hp¶ `c-W-L-S\ aueo-Im-h-Im-i-ewL\w Hgn-hm-¡m³ kp{]o-tIm-S-Xnsb kao-]n-¡pI F¶ amÀ¤w HgnsI atäsX¦nepw amÀ¤aptIm?CXv IsI-t¯-IXv \nb-a-Ú-·mcpsS IÀ¯-h-y-am-sW¶p Cu teJ-I³ hni-z-kn-¡p-¶p. \nb-a-Ú-·mtc Hcp \nanjw CXn-te............. CXn-te !