Art of Distinguishing Case Law

(Varghese T. Abraham, B. A., LL. M., (District Judge) Presiding Officer, Labour Court, Ernakulam.)

Not a Story - Believe Me or Not

Scene was a moffusil Court in Middle - Travancore. There was a pleader. He is no more. He was subscriber to Travancore Law Journal (T.L.J.) Though a veteran cross examiner he was a poor student of quick grasping. One day he went through a Judgment - not in its entirety - which appeared in the Journal. The Editorial Note of that Judgment ran as follows:-

"Theft – 380 I.P.C. - A member of a Hindu Joint Family cannot commit theft".

Facts of that case would show that a member of a Joint Hindu Family committed theft of family property. In that context, the then apex court of the State held that a member of a Hindu Joint Family has moiety of share over the family property, he is entitled to have share over every inch of the property and the remedy of the aggrieved party is to sue for partition, claim the share of the stolen property and not to launch a criminal prosecution.

The aforesaid Pleader had a theft case with him. In that case, one Parameswaran Pillai committed theft of the property of his neighbour Mathew, a Christian. When Mathew stood in the box, the Head Constable, as he could .then, brought out the necessary facts in the examination in chief. The Pleader stood up and put only one question in cross-examination. "Mr. Mathew do you agree that my client is a member of a Joint Hindu Family?"

Mathew replied, "Yes".

The Pleader sat on chair. He did not put any question to other witnesses also. The Magistrate was surprised and the Pleader solaced the Magistrate saying he has a decision with him to support his client's case. When the case reached the stage of argument, the Pleader relying on the above said decision submitted. "My client is admittedly a member of a Hindu Joint Family and as per this decision he cannot commit theft". Pleader's innocence and ignorance ended in conviction of his client.

A Prolegomenon

The above incident happens in the bar and verdicts daily. The law declared and laid down by the Supreme Court binds all the Courts below it including the High Courts. The law laid down by the High Court binds all the subordinate Courts of that State. In the absence of any decision of the High Court to which the subordinate courts of that State function, the decisions of other High Courts can be looked into and accepted atleast as a persuasive piece of legal principle. Eventhough the decision of the High Court or Supreme Court is incorrect, unpalatable, the subordinate courts have to follow it, unless the decision is per incurium [1]. This is the constitutional mandate. It is also necessary for maintaining judicial discipline. Yet another reason is that better wisdom of the Courts below must yield to the higher wisdom of the Courts above.

Doctrine of Stare Decisis [2]

It is a basic principle of administration of justice that like cases should be decided like. Law declared by the highest courts have binding force because of the principle of stare decisis. It is a maxim of practical universal application.

Legal principles are often laid down by judges in the interpretative process. Legislature while enacting laws cannot anticipate everything that may arise in future. Though it is said that Court cannot fill up lacuna or loop holes in statutes it often does so in the course of dispute settlement. Judges cannot fold their hands by saying that casus ommisus is to be filled by the Legislature and it is not the court's duty to do so. But in usual practice Judges fill up the lacuna so as to alter the law to meet social situations or urgent necessity. This is called by Lord Denning [3] as "ironing out of creases". But he cautions "a Judge shall not alter the material of which the Act is woven....." His Lordship Justice V.R. Krishna Iyer [4] puts it in another sarcastic form:" Statutory construction is not petrified process and the old bottle to the extent language and realism permits, be filled with new wine. Of course, the bottle should not break or lose shape". According to Cardozo.J. "Judges make law by evolution rather than by revolution" [5]. "Judges do and must legislate...." said Holmes. J.

Judicial Activism

Law is an instrument of social ends. A dynamic society requires a dynamic legal system. A Judge legislates only between gaps. He fills the open space in the law. As Justice Holmes asserted, "Judges really make the law, because they are motivated by the considerations as is the legislator". A Judge must be active. He shall not be a passive on looker. If the legislature fails or omits to intervene Judges must wear the rob of legislator. Judiciary is the back bone of Indian Democracy. Might, muscle and money shall not exploit the unorganised class or the down trodden [6]. Recently a Division Bench of Calcutta High Court in Basant Kumar v. Gopal Chokhany [7] exhibited judicial activism. In that case a guardian was appointed for the benefits of children of land lord who lost mental balance. The High Court increased rate of rent in the interest of social justice and rejected the tenant's plea that his case is governed by, Rent legislation. The concept of social justice weighed the mind of court. The Supreme Court in Sadhuram v. PidiaBehari [8] had already adopted a similar approach. In that case when the property was sold by auction by the Official Receiver a few persons unauthorisedly trespassed into property and put up hutmunts for their residence. The Supreme Court accepted their offer to pay substantial amount even though they were trespassers.

Take care of the calf and threw away the placenta

A cow delvers a calf and also a placenta. Look after the calf and throw away the placenta. It is the principle of law laid down by a Judge in a given set of facts that binds the Courts below. "It is not everything said by a Judge that constitutes a precedent. The dispute is solely concerned with facts except on questions of law [9]". Rupert Cross says [10]:

"If the Judge in a later case is bound by the precedent according to English doctrine of stare decisis, he must apply the earlier ratio decidendi, however much he disapproves of it, unless to use the words of Lord Reid, he considers that the two cases are reasonably distinguishable".

Casual observation

Suppose the question before the court is "whether B. Ed. degree is a post graduate degree". In the verdict the Judge says "Like an LL. B. degree B. Ed. degree is not a post graduate degree". Here, "Like an LL. B. degree" is an unnecessary or casuaI observation. It is obiter dicta; just like a placenta. "B. Ed. degree is not a post graduate degree" is the principle of law or ratio decidendi, it is the calf. Take care of, and nurse it.

Ratio decidendi and Obiter Dicta-Distinction

The distinction between ratio decidendi and obiter dicta is an old one. As long as 1673 Vaughun C.J. said :

"An opinion given in court, if not necessary to the judgment given of record, but that it might have been as well given if no such or a contrary had been broached is no judicial opinion, but a mere gratis dictum [11]. Austin said [12]: "Such general proposition, occurring in the course of a decision, as have not this implication with the specific peculiarities of the case, are commonly styled as extrajudicial, and commonly have no authority".

Don't forget

A Judge decides a case on the set of facts presented before him. The Supreme Court in Prakash Amich v. State of Gujarat [13] said:

"Hence, while applying the decision to a later case, the court which is dealing with it should carefully try to ascertain the true principle laid down by the previous decision. A decision often takes its colour from the questions involved in the case in which it is rendered. The scope and authority of a precedent should never be expanded unnecessarily beyond the needs of a given situation....."                                                                       (emphasis supplied)

The Supreme Court, again, in C.I.T. v. Sun Engineering Works [14] observed: "It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this court divorced from the context of the question under consideration and treat it to be the complete law declared by this Court. Judgment must be read as whole and the observations from the judgment have to be considered in the light of questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered..... [15]”

Foot Notes:

1. A decision against the statutes or in ignorance of law or binding principle is called decision per incurium

2. This doctrine means "keep to what has been decided previously."

3. Seafood Court Estates Ltd. v. Asher 1949 All. E.R.155.

4. Bangalore Water Supply case, 1978 Lab. I.C.467.

5.Nature of Judicial Process. P.169.

6. Recently a Division Bench of our Kerala High Court declared unconstitutional the provisions relating to fair rent in the Kerala Buildings (Lease and Rent Control) Act 1965 enacted three decades ago. This is judicial activism since the court felt that "all Land Lords are not rich and all the tenants are not poor."

7. A.I.R. 1994 Cal. III.

8. AIR. 1984 SC.1471.

9.Rupert Cross. "Precedent in English Law" second Edn, P.36.

10.Ibid pp 36-37.

11. Quoted in "Precedent in English Law" " Ibid p.37.

12. Jurisprudence. 5th Edn. P.622. Salmond.

13. A.I.R. 1986 S.C.468.

14.A.I.R. 1993 S.C.43.

15. See also Madhav Rao v. Union of India A.I.R. 1971 S.C.530.

Blood Test in Paternity Dispute

(S.A. Karim, M.Com. L.L.B., Advocate, Thiruvananthapuram)

Blood test means human blood test. It becomes necessary to decide disputed paternity. The paternity issue arises in family and property disputes. In such case, direct evidence is not probable and the litigant relys on circumstantial evidence. A clear, convincing and reliable evidence is very remote. Therefore, the litigant turns to the time tested scientific evidence like blood group test. Jaisingh P. Modi is an authority in medical jurisprudence. His book 'Medical Jurisprudence and Toxicology', 20th edition, page 93, states "no blood group antigen can appear in a child, unless it is present in either or both of the parents. An antigen from a homozygous blood group must appear with blood of the child". This is not the conclusive test, but there is more chance. It excludes a suspected father or mother. The latest scientific achievement in this field is D.N. A. test. It revolutionises medical diagnosis, forensic work and solves old mysteries.

The Supreme Court in a Division Bench decision in Goutham Kundu v. State of West Bengal, held that a child born during lawful wedlock is legitimate and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence and not by mere balance of probabilities. It is reported in 1993 Criminal Law Journal 3233, 1993 SCC (Cri.) 928 and AIR 1993 SC 2295. The Apex Court refuses, to declare a child bastard and a mother unchaste based on scientific evidence. This decision is relied in Gomathi v. Vijayaraghavan of the Madras High Court, reported in 1995 Crl. Law Journal 91. Therefore, the Court takes shelter on Ss.4 and 112 of the Evidence Act.

S.112, Evidence Act, deals with legitimacy of child. It reads "the fact that any person was born during the continuance of valid marriage between his mother and any man or within two hundred and eighty days after its desolution, 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 he could have been begotten. S.4 of the Evidence Act, states the principle of conclusive proof when one fact is declared by this Act to be conclusive proof of another, the court shall on proof of one fact regard the other as proved and shall not allow evidence to be given for the purpose of disproving it".

Modi's blood group test theory and the latest D.N.A. test are challenge to S.112 Evidence Act. It is due to the enormous growth of science and technology. With all humility, I submit, the decision of Supreme Court in Goutham Kundu v. State of West Bengal, gives new lease of life to S.112 of the Evidence Act, and shuts out the litigant from scientific evidence.

Law of Intestate Succession — A Comment on

1995 (1) KLT 403 (SC)

(By T.J. Michael, Advocate, Thodupuzha)

The finding of the Hon'ble Division Bench of the Apex Court, in Radhika v. Agnu Ram 1995 (1) KLT 403, it has to be submitted with respect to the Hon'ble Judges that one would be afraid whether it is not against the proposition of law laid down in the same decision.

The law of intestate succession in the case of property inherited by a Hindu female from her father or mother, is contained in Ss.15 and 16 of the Hindu Succession Act, 1956. The non obstante clause contained in sub-section (2) of S.15 lays down that where there are no sons or daughters and no children of a pre-deceased son or daughter of the deceased; the property will devolve upon the heirs of the father. But in the instant case the deceased intestate woman has a daughter. As is understood, the widower husband has filed the suit for partition of the properties of the deceased wife on the premise that he and the defendant daughter are the heirs of the deceased. From the facts it seems that the method of succession contained in S.15(2)(a) is not applicable to the case since the deceased has a daughter. Therefore with great respect one has to doubt whether the interference, with the concurrent findings of the District Court and High Court that the appellant and respondent are the heirs of deceased and they inherit in equal moiety, is justified.

Any Difference in the Defence available to the Insurers under 1939 and 1988 Act and Whether the Decision Reported in 1996 (1) 393 Requires Reconsideration

(By C.R. Kesavan, Advocate, Tirur)

1. An Insurer who is given notice of application for compensation under 1939 Act is entitled to defend the action on 3 grounds enumerated in S. 96(2) clauses (a), (b) and (c). Clause (a) pertains to a defence that the Insurance Company is not liable if the Policy is cancelled by mutual consent or by virtue of any provisions contained therein before the accident giving rise to the liability. The defence under CI. (b) is that the insurer can avoid the liability if there is any breach of certain specified condition of the Policy as enumerated therein under Sub clause (i), (ii) and (iii). The 3rd defence under clause (c) is that the insurer can avoid liability if the Policy is obtained by non-disclosure of material fact or representation of fact which was false.

2. While enacting 1988 Act, the Legislature deleted the 1st defence in cl. (a) of 1939 Act and other 2 defences available under clauses (b) and (c) of 1939 Act are retained AT IT IS in the 1988 Act. Due to the deletion of the 1st defence in cl. (a) of 1939 Act, the changes in serial numbers of the clauses is necessitated and with the result what was the 2nd defence in cl. (b) of 1939 Act is numbered as cl. (a) and similarly cl. (c) in the old Act is numbered as cl. (b) under the new Act. But it must always be borne in mind that the cl. (b) in 1939 Act pertains to the defence of breach of specified conditions of Policy and this is now cl. (a) in the new Act and the defence of suppression of material fact while obtaining the policy in cl. (c) in the old Act is cl. (b) in 1988 Act and this clause is nothing to do with any condition of the Policy and any breach thereof.

3. The driving licence as defined in S. 2(10) of the M.V. Act 1988 should not only authorise the holder to drive a motor vehicle but it should also specifically authorise him to drive a particular class, description or type of a motor vehicle. No person shall drive a motor vehicle in any public place unless he holds an effective driving licence and to drive a transport vehicle he should be specifically entitled as per the licence. As regards the definition and necessity for driving licence etc., the provisions contained in both the 1939 and 1988 Acts are similar. Driving a motor vehicle by a person not duly licenced is a breach of specified condition of a Policy and this is a defence available to the insurance company under both the 1939 and 1988 Act (vide S. 96(2) (b)(ii) and S. 149 (2) (a) (ii) of the respective Acts.

4. The consistent view of the High Courts of Punjab and Haryana, Gujarat, Karnataka and Andra Pradesh is that it is a good defence to the Insurance Company to avoid liability if the driver of a motor vehicle is not duly licenced. The latest pronouncement of the Hon'ble Supreme Court reported in 1996 AC J 253 establishes the fact that a person who is not duly licensed (even a learner's licence is not sufficient) is a good defence available to the Insurance Company and the Policy of Insurance contemplates that the Insurance Company would be liable only if the vehicle is being driven by a person holding a valid driving licence though it is the decision rendered under S. 96(2)(b)(ii) of the M.V. Act, 1939. When the insured allows the vehicle to be driven by a person not duly licensed there is a wilful breach of specified condition of the Policy and the Insurance Company is not liable at all is the law of the land as reported in 1989 AC J1078 SC while dealing the provision contained in S. 96(2)(b)(ii) of 1939 M.V. Act. The corresponding provision under 1988 Act is identical and hence to hold the Insurer liable, or to direct the company first to pay the quantum of liability which in law it is not liable and then to direct the Company to realise the amount from the actual person who is liable in law is not to give the correct legal effect of the provisions of law contained in both the Acts in case the provisions are identical in both the Acts.

5. While giving legal effect to Sub-ss. 2 and 4 of S. 149 of M.V. Act 1988, our Hon'ble High Court in a case wherein the driver is found not duly licensed has made the Insurance Company liable and directed first to discharge the liability and then to recover the amount from the insured as per the ruling reported in 1996 (1) KLT393 (The Oriental Insurance Co. Ltd., v. Usha). It appears that the decision rendered by our Hon'ble High Court is without taking into account the real legal effect of S. 149 of the Act especially sub-s. 4 therein with reference to the earlier provisions contained in 1939 Act. It can be seen from the following comparison of the provision contained both in S. 96(2) and (3) of 1939 Act and S. 149 (2)(4) of 1988 Act that the Legislature, as a matter of fact, has never intended to effect any change as regards the defence opened to the insurer in 1988 Act expecting the deletion of the 1st ground of defence that the policy is cancelled by mutual consent etc. etc. as contained in clause (a) in S. 96(2) of the old Act.

Comparative Study

6. It can be seen from the above comparative study of the provisions under both the Acts that the defences opened to the Insurance Company to avoid liability are identical and the only difference is that the first ground contained in S. 96(2) Cl. (a) (the Policy was cancelled by mutual consent or by virtue of any provisions contained in the Policy before the accident giving rise to the liability) is taken away and deleted in the new Act. This first ground of defence is not available now unlike in the old Act (Cl.(a) of the 1939 Act.)

7. The second ground of defence in 1939 Act which is the first ground in 1988 Act opened to the Insurance Company under both the Acts is the breach of certain specified conditions of the Policy and this ground is also identical under both the Acts. It may be borne in mind that this ground of defence IS THE BREACH OF SPECIFIED CONDITIONS OF THE POLICY and not a ground under the existence of certain given fact and circumstances as in the third ground of defence. (Vide Cl.(b) of 1939 Act which is corresponding to Cl.(a) of 1988 Act).

8. The third ground of defence in 1939 Act which is the 2nd ground in 1988 Act (it is not breaches of specified conditions of the policy) opened to the insurance company under both the Acts is that the company can avoid the liability if the policy is void on the ground that it is obtained by non-disclosure of material fact or by representation of facts which was false in some material particular, (vide cl. (c) of 1939 Act which is corresponding to cl. (b) of 1988 Act).

9. Thus, previously under the old Act there were 3 grounds of defences whereas under the new Act there are 2 grounds of defence. When the 1st ground of defence is deleted under the new Act, what was contained as 2nd ground of defence under the old Act (S. 96(2) Cl. (b) - breach of certain specified conditions of Policy) happened to be the 1st ground of defence under the 1988 Act (S. 149 (2) cl. (a)). In short cl. (b) of old Act is now cl. (a) under the new Act and similarly what was contained as 3rd ground of defence in S. 96 (2), cl. (c) of the old Act happened to be the 2nd ground in S. 149 (2) cl. (b). This is the only distinction between the 1939 and 1988 Acts.

10. When a ground of defence of breach of certain specified conditions of the Policy is opened to the insurance company under cl. (b) of S. 96(2) of the old Act (cl. (a) of S. 149(2) under the new Act), the Legislature wanted to make it dear that any-other condition other than those certain specified conditions in the Policy cannot be pressed into service by the Insurance Company and referred to avoid statutory liability and such conditions will be of no legal effect. Hence, sub-s. (3) of S. 96 of (lie old Act is enacted to carry out the above intention and which is corresponding to Sub-s. 4 of S. 149 of the new Act. On a reading of S. 96(3) of the old Act it is clear that the breach of specified conditions of the Policy enumerated in cl. (b) of S. 96(2) are saved and protected and the defence of breach of such certain specified conditions contained in Cl. (b) is always opened to the Insurance company to avoid liability. When a person can legally avoid a liability under certain given circumstances, the question of asking that person to discharge first the liability and then to recover the amount paid from the person actually liable does not arise at all (vide 1990 ACJ 757 Karnataka).

11. On a comparison of the provisions contained in Sub-s. (3) of S. 96 of the old Act and Sub-s. 4 of S. 149 of the new Act one can find that the legislature as it is simply copied down the provisions contained in Sub-s. 3 of S. 96 while enacting the Sub-s. 4 of S. 149. The words 'cl. (b) of Sub-s. (2)" appearing therein are also copied and referred in Sub-s. 4 of S. 149 of 1988 Act as in the old Act instead of cl. (a) by forgetting the fact that cl. (b) conditions of Policy of the Old Act is now cl. (a) under the new Act due to the deletion of cl. (a) of the old Act and re-numbering the clauses in Sub-s. (2) while enacting the new Act and also forgetting the vital fact that the cl. (b) in Sub-s. (2) of S. 149 of the new Act does not pertain at all to any conditions of Policy but totally a different ground of defence on the happening of a certain event viz., that the policy is void as it is obtained by suppression of material fact etc. etc. The reference of cl. (b) therein in Sub-s. 4 instead of cl. (a) is a clear mistake committed by the legislature. If a literal interpretation is given to the provisions contained in Sub-s. 4 of S. 149 of 1988 Act without diving deep into the matter as appears to have been done by our Hon'ble High Court while deciding the case reported in 1996 (1) KLT 393, the result would be that certain right of defence given under S. 149(2) cl. (a) is taken away under Sub-s. 4 of S. 149 and the Insurance Company cannot avoid liability under any circumstances expecting on the ground that the Policy is void due to happening of certain events. This definitely is not the real intention of the Legislature and reference to cl. (b) instead of cl. (a) in Sub-s. 4 of S. 149 is an inadvertent mistake committed by the Legislature in its hasty legislation.

12. Any contract entered into between two parties is void if it is obtained by suppression of material fact and mis-representation of fact. This is more so in the case of a contract of insurance as it is a contract wherein utmost good faith is expected from the contracting parties. This substantive defence is always opened to the Insurance Company under the old Act as well as under the new Act. Under cl. (c) in Sub-s. 2 of the old Act (cl. (b) under the 1988 Act) the Insurance Company can avoid the liability if the Policy is void if it is obtained by non-disclosure of material fact and representation of fact which was false as in cl. (b) of Act 1988. But cl. (c) is not referred in Sub-s. 3 of S. 96 of the 1939 Act but cl. (b) alone finds a place therein. If a literal interpretation of this provision is done as seen done by Their Lordships of our High Court while deciding the case reported in 1996(1) KLT393, the result would be that one can easily say that as there is no reference of cl. (c) in S. 96(3) of the old Act the defence that the policy is void due to non-disclosure of material fact is not available to the Insurance Company under the old Act. The defence under cl. (c) of the old Act is always opened to the Insurance Company under the old Act despite the fact that it does not find a place in Sub-s. 3 of S. 96 of the old Act, since it does not pertain at all to any conditions of Policy. What is saved under both sub-s. (3) of S. 96 old Act and Sub-s. 4 of S. 149 new Act are certain conditions of Policy and they are only referred therein and it is nothing to do with the other ground of defence mentioned in cl. (c) of the Old Act which is corresponding to cl. (b) of the new Act. It appears that this vital distinction was not brought to the attention of the Learned Judges and hence, the decision in 1996 (1) KLT 393 is rendered on a mere literal interpretation of Sub-s. 4 of S. 149 of the M.V. Act, 1988. The reference to cl. (b) in Sub-s. 4 of S. 149 of 1988 Act is evidently a mistake crept in due to the deletion of the 1st ground of defence contained in cl. (a) of the old Act, and in order to give the correct legal effect of the sub-s. 4 of S. 149 of 1988 Act, it is to be interpreted in a meaningful manner to avoid the anomaly. If a meaningful interpretation is given by comparison of the provision contained in both the Acts it can be seen that the Legislature never intended to take away the defence given to the Insurance company as per S. 149 (2)(a). When there is an ambiguity in a statute a clear distinction has to be drawn between the literal approach and purposive approach and the purposive approach is adopted in order to give the correct legal effect. The very purpose of enacting S, 149 of 1988 Act is to save certain conditions of Policy in order to enable the insurer to take shelter under those conditions to avoid liability. If literal interpretation is given to S. 149(4) of 1988 Act it would be meaningless and the very object of legislation would be defeated exposing the insurer to all kinds of risks. Normally war and riot risks are excluded in a contract of insurance. War risks are specifically included when war is declared between two countries. In recognition of this established principles which reigns the field, the injury caused due to war, riot and civil commotion are specially excluded as per S. 149 (2) cl. (a) (iii) of M. V. Act, 1988, and the company can always avoid the liability on these grounds with reference to conditions contained in the Policy of Insurance. By giving a literal interpretation of S. 149(4) of 1988 Act, if cl. (a) policy conditions are not brought within the ambit of the saving clauses therein, the insurance company has to pay even in a case when all occupants in several stage carriage buses parked in a bus stand are reduced into ashes due to the bombardment of an enemy plane during the time of a war. Similarly, due to the riot or civil commotion if all passengers in a stage carriage are burned alive by rioters, the insurance company has to pay compensation. This is not the scheme of the M. V. Act despite the fact that it is a social legislation to protect the innocent victims of the road accidents.

"Where the language of a statute in its ordinary meaning and gramatical construction leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of die words and even die structure of die sentence". (MAXWELL ON INTERPRETATION OF THE STATUTES).

According to Benjamin Cardozo the eminent jurist,

"There are gaps to be filled, mere are doubts and ambiguities to be cleared up". "There are hardships and wrongs to be mitigated, if not avoided" while interpretating a statute in order to give correct legal effect."

While interpreting the scope of a particular provision of law the Court must ascertain the intention of Legislature by looking at not merely to the clauses to be construed but to the entire statute as opined by our Hon'ble Supreme Court in (1979) 4 SCC 85. "A statute is not to be interepreted merely from the Lexicographer's angle. The Court must give effect to the will and in-built policy of the Legislature as discernible from the object and scheme of the enactment, and the language employed therein." The meaning and intent of the Legislature is to be gathered not merely from the words used by the Legislature but a variety of other relevant circumstances. "To he literal or to be blinkered by some rigid cannon or restriction may be to miss the life of law itself as opined by our Hon'ble Supreme Court in (1977) 1 SCC 155. "In order to know what is the provision contained in a particular provision of law one has to know what it has been, and what it tends to become". "We are interested with law as it is. If this leads to unjust results it is a matter for Parliament and not for us" is not the stand expected from a Judge while giving a correct legal effect to a particular portion of the provisions of the statute.

Hence, cl. (b) of Sub-s. 2 referred to in S. 149(4) is to be read as cl.(a) of Sub-S. 2 in order to give the correct legal effect, and to obviate the unintentionally  anomaly committed by the Legislature the decision reported in 1996 (1) KLT 393 requires immediate reconsideration and the Legislature is also to see that this anomaly is not allowed to be there in the statute any longer.

The Full Bench Fallacy

(By K.V. Sohan, Advocate, Ernakulam)

1. The Full Bench decision Kerala Fisheries Corporation v. P.S. John, 1996 (1) KLT 814 held that (1). The Collector exercising power under the Revenue Recovery Act is not a Court and Limitation Act being applicable only to 'Court' will not apply to proceedings for recovery of any amount by the Collector. (2) Assuming Collector is a Court, once any amount due to any institution notified to be recoverable under the Revenue Recovery Act, by fiction the amounts due to those institutions arc amounts due to Government and the period available for recovery of amounts due to those institutions under the Act would also be 30 years provided for recovery of government dues under Article 112 of the Limitation Act.

2. Hon'ble Mr. Justice Balasubramanian on behalf of the Full Bench traced the law, rather the confusion created by the Supreme Court from Athani Municipality (AIR 1969 SC 1335) to Mitkri Gopalan (AIR 1995 SC 2272) and correctly found that Limitation Act is applicable to all applications under any Act in any "Court".

3. Learned Judge quoted Birla Cements Works case (AIR 1995 SC 1111) which held that Railway Claims Tribunal is not a Civil Court and so Limitation Act is not applicable. This decision is not an authority not only due to the later decision of Mukri Gopalan which held that Limitation Act applies to all 'Courts', whether civil, criminal or special courts constituted under any enactments but also due to the apparent misconception of the Supreme Court that Limitation Act applies only to 'Civil Courts' though no where in the Limitation Act it is stated so. Birla Cements does not refer to any earlier decisions also. When I stated above that the Supreme Court decision created confusion, it is with reason. In K.S.E.B. v. T.K.K. (AIR 1977 SC 282) in the last paragraph their Lordships used the word 'Civil Courts'. On a whole reading of the decision it is clear that their lordships used the words 'Civil Court' in contra distinction with Court martial or other Courts where non civilians are dealt with. It is also to be remembered that prior to K.S.E.B. case the Supreme Court in AIR 1976 SC 105 held that Limitation Act applies to criminal Courts. So, the only correct conclusion possible is that the one laid in Mukri Gopalan and accepted as the correct law by the Full Bench.

4. It is clear that Birla Cements case (Railway Claims Tribunal case) unnecessarily narrowed the ratio probably without much application of the mind as in the case of many recent decisions of the Supreme Court. So also the decision of the Supreme Court in 'Officer on Special Duty' v. Sha Manilal Chandulal JT 1996 (2) SC 278, (1996 (9) SCC 414) which held mat the Limitation Act will not apply to Collector acting under Land Acquisition Act is to he doubted. The said decision does not examine whether the Collector discharges duty under the Act has the attributes of a "Court' contemplated under the Limitation Act, It is also to be noticed that the Supreme Court relied on Jokkim Fernandez. (1973 KLT 138) which by the time stood over ruled by Mukri Gopalan. Supreme Courts attention was not brought to the fact of over ruling of Jokkem Fernandez. On a whole reading of the decision, it is clear that the Supreme Court was carried away by the fact that 'court is defined in the Land Acquisition Act. In such circumstances, 'the Act made a distinction between Collector and the Court". It is correct that, for the purpose of Land Acquisition Act, 'Court' is defined to mean a principal Civil Court of original jurisdiction or a specially appointed judicial officer. Evidently, the court defined under the Land Acquisition Act is the Court empowered to go into the correctness of award of the Collector. But the real question was whether the Collector have the attributes of a 'court' while exercising powers under Part II of the Land Acquisition Act. S.5A contemplates an objection to the proposed acquisition and a hearing in person or by a counsel before the Collector. S.14 of the Act gives power to summon and enforce the attendance of witnesses as provided in CPC. Collector has the power to adjourn the enquiry, hear the Council, and make an award. Right to take evidence is also inherent and need not be stated that evidence Act applies to the Collector while acting under Part II of Land Acquisition Act. Supreme Court has not examined, in the light of the above provisions, whether Collector is a Court contemplated under the Limitation Act.

5. The Full Bench examined the sections of R.R. Act and held that Collector acting under R.R. Act has no attributes of a Court. This finding with great respect is incorrect. The result of the decision is that one can be arrested and detained in civil prison or his property can be attached and sold without any adjudication of his liability or recoverability of the amount. The Full Bench did not properly considered the scheme of the R.R. Act. The learned Judge has to concede "while dealing with claims to attached property or considering the arrest of the defaulter under S.65 of the Act, the power to adjudicate is specifically conferred on the Collector" (Para 14 of the Judgment). So, is not the Collector a Court, while at least adjudicating the attachability and arrest of the person? S.34(2) speaks of an objection, enquiry and recording a decision if the defaulter object to the claim of arrears wholly or in part. In S.44(3) if a transferred property is proceeded with, the Collector is to give opportunity of being heard and record reasons. In S.58 for effecting delivery of the property Collector is given all the powers of a Civil Court under CPC. So, at least while acting under S.58, the Collector is a Civil Court. Also, in S.69(3) of the R.R. Act the Collectors to satisfy that the amount is recoverable under the Act. With the aid of the subsequent section the Judges held that when payment is made under protest Collector need not enquire but only send the amount with the protest to the Officer who makes the acquisition. Evidently the protest payment occurs only after the Collector satisfies to proceed. Suppose the legal heirs of the original debtors are proceeded against, when no property devolved on them from the original debtor, or a minor or a lunatic without guardian is proceeded against, they cannot but pay under protest and Collector need not look in to the bar under any other law? Collector need only satisfy that the requisition is made by an authority notified under S.70.

6. On a whole reading of the Act it is clear that unlike the civil proceeding which bifurcates the adjudication of the liability and the executability, the R.R. Act made only a clumsy mixture of both simultaneously for speedy recovery of public revenue. This does not mean that all other laws of the land are not applicable to the Collector proceeding under the R.R. Act. Clearly the R.R. Act contemplates limited adjudication and the Collector while acting under R.R. Act is a Court though not a Civil Court. The reasons for not applying the ratio of State of Tamil Nadu v. Venkataswamy (AIR 1995 SC 21) are also not tenable.

7. As regards the second limb of the finding, it is submitted that it is a fallacy. At this juncture it is to be asked whether amounts due to Government can be recovered by R.R. Act even after the lapse of thirty years? The Full Bench has not answer edit directly. What the Full Bench held in para 18 as I understood is reproduced below as logical premise to show its inherent fallacy without any argument.

Amount due to Government is recoverable

as arrears due on land.

Amount due to institutions notified

under S. 70 are recoverable as

arrears due on land.

So institutions notified under Section 70

of R.R. Act are Government.

11 the above premise is correct, we have to accept the following premise also as correct.

All dogs are mammals

All cats are mammals

So all cats are dogs.