Espee on March of Law

(By S. Parameswaran, Advocate, High Court of Kerala)

1. The central concepts of modern legal culture are choice, consent, freedom and individual rights. In every area of social life, institutional behaviour has been reconstituted, gradually or rapidly, to reflect the new culture, the new version of choice, liberty, social justice and individualism. Law is the vehicle through which modern notions of choice are translated into living social arrangement. The issue, then, is not one of "more law or less Law" but rather what kind of law and what kind of arrangements and elements of ritual and magic and ceremony do survive in modern law, there is an occasional glint of symbolism and enchantment. Yet these elements do not appear to be strong-spirited enough to capture and sustain the underlying power of modern authority. Nothing has been more surprising and dramatic than that the explosion of constitutional law in India in the last three, to four decades has come to recognise the reality that there is nothing undemocratic about an institution like our Supreme Court that declares, sustains, protects and supports these rights. It is in this background that I wish to provide a bird's eye view of the performance of the Apex Court in the year that went by.

1 A. We have just rung out the old year 1995 and rung in the new 1996. The year that went by presented us with a number of important decisions on a variety of cases by the Apex Court of the country. In this bird's eye-view, this writer does not venture into a prediction of the future course of events of legal significance, but only wishes to express a common view of recent controversies of legal import and critically examine the Indian Supreme Court's handling of the cases and controversies, which demonstrate the range and variety of attitudes that influenced its thinking.

2. Under constitutional law, particularly relating to Article 15 of the Constitution of India, the Bench comprising Justices K. Ramaswamy & N. Venkatachala laid down the procedure for issuance of social status certificates, their scrutiny and their approval, in Director of Tribal Welfare, Govt. of Andhra Pradesh v. Laveti Giri & others reported in AIR 1995 SC 1506. The court further held that the burden of proof as to social status is always on the person approaching the Court seeking constitutional socio-economic advantage and that it is not part of the duty of the State to disprove or otherwise.

3. An epoch-making decision reported in 1995 (Dr. M. Ismail Faruqui v. Union of India & others - AIR 1995 SC 605), though delivered on 24.10.94, is the Ayodhya Case by a five-Judges bench - a land mark decision of the Venkatachaliah court. The court held that the pith and substance of the acquisition of certain areas in Ayodhya Act is acquisition of property and not public order and the Act squarely falls within the ambit of Entry 42, List 3 of Sch.7 of the Constitution and as U.P. was under President's Rule, legislative competence could not be questioned. Delineating the contents and contours of secularism, the Bench held that as adopted in the Constitution the concept is also a facet of right to equality. After ascertaining the area required, the court said, the remaining area should be released to the owner. More importantly, the majority headed by the Chief Justice through Justice J.S. Verma held that the theory that property once consecrated Mosque remains always as mosque is not the Muslim Law in India and that title to mosque can be lost by adverse possession and that mosque is not an essential! part of the practice of Islam religion and Namaz can be offered anywhere and in the open.

4. In Kumari Madhuri Patil & Another v. Addl. Commissioner, Tribal Development and others (AIR 1995 SC 94), the petitioner claimed admission in a Maharashtra Educational institution on the basis of false certificate as a member of the Scheduled Tribe called Mahadeo Koli. The Court found that her father's school records during pre-independence period, showed the caste as Hindu Koli. Several seconds of pre-independence period according to the court, carried greater probative evidentiary value and the candidate cannot get benefit of being a member of the Scheduled Tribe in question. The documents produced to show caste which were relied upon in the face of the school record cannot be relied upon. This is especially so, when the committee constituted specially for fact-finding on the question has given its views. The court further held that the doctrine of promissory estoppel cannot be availed of by the candidate and it enunciated necessary guidelines for the issuance of social status certificate, its scrutiny and approval.

5. That Art.21 of the Constitution cannot be indiscriminately invoked for profit has been explicitly stated by the Supreme Court. In M G. Sivani v. State of Karnataka (AIR 1995 SC 1770) the Supreme Court, while dealing with appeals against the judgments of the Karnataka and the Madras High Courts regarding the regulation and restriction of video games, held that these were not violative of the right to life guaranteed under Art.21 of the Constitution of India. Interpreting Ss.31 & 39 of the Mysore Police Act, 1963 and Secs.34, 35 & 39 of the Madras City Police Act, 1888 and discountenancing the challenge against the validity of licensing of video games, Justice K. Ramaswamy speaking for himself and Justice B.L. Hansaria held that the prohibition in the licence, of admitting school or college-going children during school or college hours is in the public interest of education of students and is neither unreasonable nor capricious and it is not violative of Art.21 of the Constitution.

6. The same Judge, however, sitting with Justice N. Venkatachala in LIC of India and another v. C.E.R.C. and others reported in AIR 1995 SC 1811, held that confining Term Policies by LIC only to the salaried class from Government, semi-Govt. or reputed commercial firms is offensive/of the egalitarian ethos informing Art.14 of the Constitution of India. The classification so confining, the court held, has the insidious and irrevocable effect of excluding lives in vast rural and urban areas engaged in unorganised or self-employed sectors to have life assurance, offending Art.14 of the Constitution and socio-economic justice. The doctrine of classification is only a subsidiary rule evolved by the court to give practical content to the doctrine of equality; overemphasis on the doctrine of classification or anxious or sustained attempt to discover some basis for classification may gradually and imperceptibly erode the profound potency of the glorious content of equality enshrined in Art. 14 of the Constitution, the Bench added. Holding that writ petition questioning the validity of the terms and conditions of the Term Policy of the LIC is maintainable, the court said that the action of the respondents bears public character with an imprint of public interest element in their offers involving the public to enter into a contract of life insurance. It is not a pure and simple private law dispute without any insignia of public element. The court, however, consolingly permitted the LIC to revise the premium to make the policy viable and easily available to the general public in the light of the law declared by the court in the judgment. This is one of the most well-considered judgments touching the law of contract rendered in recent times by the Indian Supreme Court.

7. In regard to educational institutions, and the fundamental constitutional rights to run the same, the Supreme Court upheld the right of a company to set up a technical institute only for the children of its employees, where admissions are strictly on merit basis and no fees are charged. The Court observed that the purpose of starting and running the institute was not inconsistent with object sought to be achieved, by the scheme enunciated in Unnikrishnan's case (19S3 AIR SCW 863) and the regulations framed by the All India Council for Technical Education (A Polytechnic by Name Larsen & Toubro Institute of Technology and another v. All India Council for Technical Education and others - AIR 1995 SC 1585).

8. In G. Rabinathan v. State of Karnataka & Others (AIR 1995 Supreme Court, 1474), Justices K. Rarnaswamy and B.L. Hansaria opined that the Govt. is the appropriate authority to decide whether seniority is to be computed from the date of appointment in Defence Services and whether seniority rendered in IMCG would amount to service in the, Defence Services. That was a case where the defence personnel concerned were transferred to the civil service of the Union or State Government and the question arose whether continuance of their service is deemed under Rule 6-A of Karnataka Government Servants (Seniority) Rules, 1957. In the said case, the Supreme Court, however, held that the Government Is the competent authority to take decisions in service matters.

9. In A. K. Kaul and another v. Union of India and another reported in AIR 1995 SC 1403 Justices S.C. Agrawal and Faizah Uddin drew distinction between judicial review and justiciability and added that the power of judicial review is implicit in a written Constitution and unless expressly excluded by a constitutional provision, the power of judicial review is available in respect of exercise of powers under any of the provisions of the Constitution. Justiciability relates to a particular field failing within the purview of the power of judicial review. On account of want of judicially manageable standards, there may be matters which are not susceptible to the judicial process, in that ca.se, the Court held that the decision as to dispensing with an enquiry prior to dismissal or removal from service of a Government servant under Art.311 (2), Second proviso, clause (c), the satisfaction reached by the President or the Governor as the case may be, was justiciable within the limits indicated in the decision reported in AIR 1994 SC 1918 (S. R. Bommai). The Court further held that the absence of the requirement to record reasons in clause 3 is not indicative of immunity from judicial review.

10. In the same case the Court upheld the privilege claimed by the Government as regards Cabinet papers brought into existence for the purpose of preparing submissions to the Cabinet, notes and minutes made by the respective officers, information expressed and the gist of the official decisions as secrecy was of the essence of the Intelligence Bureau. It endorsed the view taken by the Tribunal which looked into the records for determining whether the satisfaction of the President in regard to the dismissal of the officers was vitiated, but did not permit disclosure to the other party.

11. In UP State Sugar Corporation Ltd. v. UPPS Corporation Karmachari Association and others (AIR 1995 SC 1484) Justices S.C. Agrawal and Mrs. Sujata V. Manohar held that the remarks made by the High Court about the officers for non-implementation of a particular policy were not justified. It was observed by Justice Agrawal speaking for the Bench that it would not be fair to place blame on the civil servants without fully examining the reasons for failure to implement a particular policy. The court also set aside the direction of the High Court to file complaint against the officers under Criminal Law for filing Counter Affidavit containing slight errors, observing that does not lead to the inference that a false plea was manufactured by the Corporation on whose behalf the Affidavit was filed.

12. In relation to the Representation of the Peoples Act, 1950 and the Constitution of India, Arts.324, 14, 5 and 11 and the Citizenship Act, 1995, S.9, the Bench comprising Justices A.M. Ahmadi, N.P. Singh and Mrs. Sujatha v. Manohar held that determination of citizenship even for the limited purpose of some other law has to be done by the authorities in the light of the constitutional provisions and the Citizenship Act. The court frowned upon the deletion of the names of certain persons from the electoral rolls on the ground of suspicion about citizenship without granting any opportunity of hearing, saying that the hearing would not be meaningful unless the basis for the suspicion is disclosed (Lal Babu Hussain & others v. Electoral Registration Officer and others, AIR 1995 SC 1189).

13. In Secretary, Ministry of Information and Broadcasting, Govt. of India &others v. Cricket Association of Bengal and others (AIR 1995 SC 1236) the court blazed new trails. Three eminent Judges who constituted the Bench P.B. Sawant, S. Mohan and B.P. Jeevan Reddy opined that freedom of speech and expression guaranteed under Art.19(1)(a) & (2) of the Constitution includes the right to acquire and disseminate information, and right to disseminate includes the right to communicate through any media, print, electronic or audio-visual. No restriction can be placed on the right to freedom of speech and expression on a ground other than those specified in. Art. 19(2). The court further observed that broadcasting and telecasting is a medium of speech and expression, and monopolisation thereof is not permitted under law. In the telecast of sports, free speech element is present and the degree of free speech element depends upon the character of the telecaster. The court, however, added that the scarcity of frequency creates in-built restriction on the right to telecast and the greater impact on TV on society cannot be clear base for additional restriction over and above those permissible under Art.19(2). The Court observed that the frequency right must be protected by establishing centralised agency representative of all sections of society free from control of both the Government and the influential sections of the society. The court directed the Central Government to take immediate steps for establishment of independent autonomous public authority. The court rightly emphasised that the freedom of speech under Art.19(1)(a) of the Constitution is basic and available from democratic polity. The grounds for restriction specified under Art.19(2), the court added, are conceived in national interest and interest of security. While public broadcasting is implicit under Art.19(1)(a), private broadcasting is not. Right to receive and impart information does not include the right to impart information by use of air waves, which is public property.

14. In Indian Council of Legal Aid and Advice v. Bar Council of India (AIR 1995 SC 691), the Division Bench headed by Chief Justice Ahmadi struck down the Bar Council of India Rules (Cht.3, R.9) debarring persons who have completed 45 years of age as bad being beyond the rule-making power of the Bar Council of India and ultra virers the Advocates Act, 1961.

15. The court in Narendra Kumar v. State of Haryana (AIR 1995 SC 519) deprecated the demotion by transfer of an employee on the ground that his arm was amputated owing to cancer and consequently he was unable to do his old job. Holding that it is violative of right to life under Art.21, which includes right to livelihood, the court ordered protection of his pay and that should be accommodated in a suitable post.

16. Administrative law structures have public authorities work, and in that part known well to lawyers, provide a system of review and redress. What underpins. this law, it might be said, is not some theory about society, but simply the application of the principle of legality; the question, in any case, is simply whether the administrative action challenged is within the scope of the empowering law. There are also cases or groups of cases which reveal more clearly than usual that the choices which Judges must make in the application of Administrative Law have led them to take a very different view from Government about the allocation of resources'(See J. A. G. Griffith, the Politics of the Judiciary, Third Edn.1985). The principles of legality supplies only the lawyers' over-reaching theory for the principles of judicial review; it does not tell us anything about how the principles have to be applied. The objectives of the public administration reformers of the 1970s were to make the administration more efficient, more democratic and more equitable.

17. Another decision of import in Administrative Law was rendered by the Apex Court in L. Chandrakant v. Union of India (AIR 1995 SC 1151), where the Court felt that its judgment in Sampath Kumar's case (AIR 1987 SC 386) including the question whether the Tribunal can at all have an Administrative Member on its Bench required reconsideration by a larger Bench. The Division Bench comprising Justices Kuldip Singh, Hansaria and Majumdar was considering in this case the question of validity of S.5(6) of the Administrative Tribunals Act, 1985 and the power of the Tribunal to adjudicate upon questions pertaining to the constitutional validity or otherwise of a Rule framed under S.309.

18. In service jurisprudence, ah important decision rendered was that the Central Civil Services (C.C.A.) Rules, 1965 are not applicable to civilian employees of the Defence Services. The Court below refused to set aside removal from service of the employee who alleged that the enquiry was held under these Rules on the ground that no prejudice was caused to him and as the Rules are more specific and more beneficial than the principles of natural justice (Director General of Ordnance Services and another v. P. V. Malhotra, AIR 1995 SC 1109).

19. Consistency, perhaps, is not a judicial virtue. The Judges must be free-thinking and amenable to change of views on very strong grounds. And as Cardozo said, every judgment reflects the personality of the judge. But, the moot question is whether the decisions commented upon is right and appropriate as it has an unsettling effect on the Apex Court's earlier decisions in Sampat Kumar (AIR 1987 SC 386), Parmananda (AIR 1989 SC 1185) and Majumdar (AIR 1990 SC 2263)'where it declared that the Administrative Tribunals are substitutes for, and alternatives to, High Courts. Both the complexity of the law and the rate of change have so accelerated in the last decade that it has become virtually impossible to teach the law; this situation gets aggravated by the frequent shifting in the stance of the Supreme Court on administrative and social issues.

20. There is, of course, another way of looking at this issue. These decisions cannot be brushed aside as having leapt from common place brains of mediocre judges. Great judicial minds, of course, are not immune to errors. U. S. Chief Justice Roger Brook Taney's wretched opinion in Dred Scoff v. Sanford (1857) and Justice Joseph Storey's ill-started invention of general federal common law in Swift v. Tyson (1842) are exemplary. But profound and penetrating Justices are indispensable to sound constitutional doctrine because they possess the boldness necessary to reexamine prevailing orthodoxies. Trial and error is as pivotal to sound constitutional philosophy as it is to intellectual advance in other professions. The evolution of constitutional thought is hastened by the exceptional jurist who does not hesitate to question precedents that others blindly accept. All disciplines including law progress on the backs of the fearless and the brilliant. The apex court's influence over the country is ubiquitous and this militates in favour of justices with panoramic and powerful intellect and the need to avoid uneven handed or erratic decision-making. Intellectually gifted justices are indispensable to decisions that shine with coherence and lucidity, and that provide decipherable roadways for courts below them.

21. Under the Civil Procedure Code certain important decisions were rendered by the apex court of the country in the year that went by. In Madhya Pradesh Electricity Board Vs. Central Electric Supply Co. Ltd. and others reported in AIR 1995 SC1456, Justices B.P. Jeevan Reddy and Smt. Sujatha v. Manonar, reversing the decision of the M.P. High Court held that the application seeking compensation in execution of decree was not maintainable. In a suit for possession of properties, objections were filed to execution. The High Court of Madhya Pradesh had ordered that the plaintiff could seek compensation for properties in appropriate proceedings. The Supreme Court held that the word "Proper Proceedings" in the order of the High Court would mean separate independent proceedings and not execution proceedings of the very same decree.

22. In yet another decision, namely, Nagar Palika, Jind v. Jagat Singh (AIR 1995 SC 1377) Justices J.S. Verma, N.P. Singh and K. Venkataswami were concerned with the applicability of Sec. 6 of the Specific Relief Act, 1963 in a suit for injunction restraining the defendant from interfering with the possession of the plaintiff who never alleged that he was dispossessed by the defendant but, claiming to be the owner, had asserted that he was in possession. The Supreme Court speaking through Justice Sujatha V. Manonar held that the principles under Sec. 6, Specific Relief Act would not be attracted. In the said case, the title and possession of the plaintiff was always disputed by the defendant from the stage of written statement. The Supreme Court held that it was incompetent on the part of the appellate court to record its finding on the claim of title of the plaintiff alone and that the failure of the court to enquire or investigate is a serious error on record, disentitling the plaintiff to any relief, merely on the basis of entries in revenue records.

23. Under Order XXXII, Rule 3 of the CPC, the Court held that a minor can file suit to set aside the decree passed against the minor on the ground of gross negligence on the part of the next friend of the minor. In the said case, the court held that Sec.44 of the Evidence Act, 1872 would be attracted only if any inference of fraud or collusion could be drawn from gross negligence (Asharfi Lal v. Smt. Koli reported in AIR 1995 SC 1440).

24. In Civil Law, in Mahboob Sahab v. Syed Ismail & others (AIR 1995 SC 1205) the court held that a Muslim Gift need not be in writing and laid down the essential conditions-for a valid gift. It also held that the mother of the minor cannot act or be appointed as guardian for a minor. The court also laid down the norms for application of the doctrine of res judicata under S.11 of the C. P. C. between co-defendants and added that the doctrine has to be applied with great care and caution, the reason for that being fraud or collusion.

25. Interpreting S. 9, C.P.C. and S.102(2) of the Karnataka Municipal Corporations Act, 1977, the court held that suit against enhancement of property tax was not maintainable on the ground that it is arbitrary and unreasonable. But writ petition challenging action under the Act is maintainable (Srikant Kashinatha Jituri v. Corporation of City of Belgaum, AIR 1995 SC 288).

26. In regard to fixation of compensation under S. 23 of the Land Acquisition Act, 1894, the failure of the lower court to apply the armchair test of a prudent purchaser and a willing vendor - or the test of the realised income on crops in the fixation of compensation was held to be illegal in Nuclear Power Corpn. v. Gajraj Singh & another (AIR 1995 SC 1606). The court further held that appeals filed by parties interested, but not impleaded, cannot be dismissed on the ground of delay.

27. Avery important decision was taken by the Bench comprising Justices Kuldip Singh and R. M. Sahai holding that the Second marriage of a Hindu husband during the subsistence of the first marriage after converting himself into Islam is void in the eye of law, under Sec. 494 of the IPC. It is violative of justice, equity and good conscience. The Second marriage of a Hindu husband after his conversion to Islam would be in violation of the IPC and as such void in terms of Sec. 494. Any act which is violative of the mandatory provisions of law is per so void and the apostate husband would be guilty of offence under Sec. 494 of the IPC and all the 4 ingredients of Sec.494 are satisfied in the case. The court further observed:-

28. "A matrimonial dispute between a convert to Islam and his/her non-Muslim spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a case was or is not required to be the "Muslim Personal Law". In such cases the court shall act and the Judge shall decide according to justice, equity and good conscience. The second marriage Of a Hindu husband after embracing islam being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of S.494, I.P.C.

The second marriage of an apostate-husband would also be in violation of the rules of natural justice. Assuming that a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to marry again without getting his earlier marriage under the Act dissolved. The Second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void {Smt. Sarla Mudgal v. Union of India & others, reported in AIR 1995 SC 1531)".

29. In an epoch-making decision in Criminal Law rendered in State of Madhya Pradesh and another v. Ram Krishna Balothia and another (AIR 1995 SC 1198), Justice Sujata speaking for herself and Justice B.P. Jeevan Reddy held that the offences under Ss.18 & 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Act 33 of 1989 form a distinct class by themselves and cannot be compared with other offences. Therefore, Sec. 18 of the Act excluding application of the provisions regarding anticipatory bail under Sec. 438 of the Criminal Procedure Code is not violative of Arts.14 & 21 of the Constitution of India. The court un-mistakably made it clear that anticipatory bail was not available in the case of offence of atrocity on Scheduled Castes and Scheduled Tribes. Looking to the historical background of untouchability, there is justification for apprehension that the benefit of anticipatory bail, if made available to persons who have allegedly committed such offence, there is every likehood of their misusing of their liberty while on anticipatory bail to terrorise their victims and to prevent proper investigation, held the court. The court further observed that anticipatory bail is essentially a statutory right conferred long after the coming into force of the Constitution and hence it cannot be considered as an essential ingredient of Art.21 of the Constitution of India.

30. In Charipalli Shankarrao v. Public Prosecutor, A.P. High Court, AIR 1995 SC 777), the Court upheld the validity of a dying declaration recorded by a Head Constable in the absence of availability of Magistrate.

31. In Taxation jurisprudence, the apex court in the judgment delivered by Justices K. S. Verma and K.S. Paripoornan in Amrit Banaspati Co. Ltd. v. Union of India & others (AIR 1995 SC 1340), upheld the imposition of tax on movement of goods and stated that it does not in any way impair freedom of trade. The terminal tax on goods carried by rail or road into Delhi has to be presumed to be levied in public interest and in the case on hand the presumption was not offset by any contra material. The court added that while challenging the constitutionality of a statute, specific, clear and unambiguous allegations of violation of Constitution should be made and the burden of proof is on the challenger. S.178 of the Delhi Municipal Corporation Act, even if assumed to be contrary to Art.301 of the Constitution of India, would be saved by Art.302, held the court.

32. In Income Tax, one case came up before the Supreme Court claiming refund when the assessment order was set aside in appeal with direction to the ITO to make fresh assessment. The court refused to order refund as refund would arise only when fresh assessment is made and amount leviable as tax is ascertained (C.I. T. v. Chittoor E. S. C., AIR 1995 SC 700).

33. The court held that promissory estoppel doctrine was not attracted to a case of issuance of a notification withdrawing time-bound exemption notification. The exemption notification did not hold out any promise to the importers, the court added (Kasinka Trading and another v. Union of India & another, AIR 1995 SC 874).

34. In Corporate jurisprudence the court's dictum laid down in Hindustan Lever Employees' Union v. Hindustan Lever Ltd. (AIR 1995 SC 470) is noteworthy. That case involved amalgamation of an Indian Company with a foreign company which was approved by the majority of share-holders, debenture holders and even financial institutions; shares were properly valued and the Explanatory statement accompanying amalgamation proposal did not Sack in material particulars. On the sole ground that it envisaged 51 % equity participation by the foreign Company the scheme cannot be said to be against public interest, the court opined.

35. In Satish Cahndra v. Union of India (AIR 1995 SC 138), distinguishing its earlier decision in Sampat Kumar's case, (AIR 1987 SC 386) the Bench comprising Justices A.M. Ahmadi and B.L. Hansaria held that the Company Law Board is not a substitute for the High Court and that the provisions relating to the Board in the Companies Act, Sec. 10 (e) as amended by the Companies Amendment Act, Act 31 of 1988, cannot be assailed on the ground of legislative incompetence. The conferment of power under S.397, which is less drastic, on the Board while retaining the drastic power of winding up with the High Court, is not vitiating the provisions and the latter cannot be assailed on the ground of lack of intelligible and acceptable differentia for having two fora for two purposes. Nor can it be attacked on the ground that it does not protect minority shareholders.

36. In another decision of significant import to industry, the Apex Court in M/s. S.R.T. Ltd. v. M/s. Garware Plastics and Polyesters Ltd. and others (AIR 1995 SC 2228) stressed the need for expedition and completion within a time-frame of the procedure for revival and rehabilitation of the sick or the potentiality sick companies under the Sick Industrial Companies (Special Prevention) Act, 1986, constructing Ss.17 and 18 of the Act. Justice K. Ramaswamy speaking for himself and Justice N. Venkafachala underscored the need for hearing the Central Government and the Central Government and the Central Board of Direct Taxes when the merger of a sick company with a healthy company involves the question of granting a certificate by the Central Government, The practice of sabotaging such schemes was firmly dealt with by the Court by dismissing the petition with exemplary costs.

37. In industrial jurisprudence, the Supreme Court did contribute much in the year gone by. However, it made an important decision in which it declared that S.25-M of the I.D. Act, 1947 as amended in 1970 requiring prior permission of concerned authority before effecting lay off was constitutionally valid and not violative of Art.19(6) of the Constitution of India. Quite contrary to the apex court's consistent stand against reliance on external aids like the Statement of Objects and Reasons in interpreting a statutory provision, the Bench comprising Justices G.N. Ray and B.L. Hansaria held that the object underlying the requirements of prior permission for layoff of workmen introduced by S.25-M as indicated in the Statement of Objects and Reasons for the Amending Act of 1976 is to prevent avoidable hardship to the employees resulting from lay-off by protecting employment to those already employed and maintain higher tempo of production and productivity by preserving industrial peace and harmony. The said consideration coupled with the basis underlying the provisions of the Act, namely settlement of industrial disputes and promotion of industrial peace, gives sufficient indication of the factors which have to be borne in mind by the appropriate government or authority while exercising its power to grant or refuses permission for layoff under sub-section (2) of S.25-M. There may be various contingencies justifying an immediate action of lay-off, but then, the Legislature in its wisdom has thought it desirable in the greater public interest that decision to lay-off should not be taken by the employer on its own assessment with immediate effect, but the employer should seek approval from the concerned Authority which is reasonably expected to be alive to the problems associated with the concerned industry and other relevant factors, so that on scrutiny of the reasons pleaded for permitting lay-off, such Authority may arrive at a just and proper decision in the matter of according or refusing permission to lay-off. The court added that the employer has to face some inconvenience caused on account of this stipulation and that in the greater public interest for maintaining industrial peace and harmony and to prevent un-employment without just cause, the restriction imposed under sub-s.(2) of S.25-M cannot be held to be arbitrary, unreasonable or far in excess of the need for which such restriction as has been sought to be imposed (Papanasam Labour Union v. Madura Coats Ltd. and others -AIR 1995 SC 2200.

38. In Labour Jurisprudence, the court declared the law of far-reaching effect in Hindustan Steel Works Construction Ltd. etc. v. H.S.W.C. Ltd. Employees' Union and another (AIR 1995 SC 1163). In that case; the Construction company undertaking contract work wherever awarded appointed a number of local persons in one worksite, and on completion, wound up the establishment there. The workers cannot demand absorption in other units even if the Company reserves the right to transfer employees from one unit to another, and re-instatement cannot be ordered invoking S.25 FFF of the industrial Disputes Act, 1947, the Court observed.

39. In Birla Cement Works v. G.M., Western Railway and another (AIR 1995 S.C. 1111), the court held that the Railway Claims Tribunal is not a Civil court and that the provisions of the Limitation Act are not applicable to proceedings before it. The Court blazed new trails of industrial jurisprudence when it held the employer vicariously liable to pay damages when a workman affected by asbestosis dies after cessation of employment. The Asbestos Industries is bound by Rules regarding safety in the use of asbestos issued by the I.L.O., said the Court, which issued various directions to the industry for control of occupational health hazards and diseases to workmen. Justice K. Ramaswamy speaking for the Bench comprising Chief Justice Ahmadi, M.M. Punchi, J. and himself, observed that right to life under Art.21 of the Constitution does not connote mere animal existence or continued drudgery through life and it includes right to livelihood, better standard of life, hygienic conditions in work place and leisure and also tradition and cultural heritage. His fundamental right under Art.21 includes hygienic conditions in work place and leisure, and in enforcement and protection of the fundamental rights, remedy of compensation is available under Arts.32 & 226 of the Constitution and the State cannot claim sovereign immunity (C. E. R. C. & others v. U.O.I. & another, AIR 1995 SC 922).

40. The Supreme Court came down heavily on the Executive, invoking its Contempt jurisdiction in Dhananjay Sharma and others v. State of Haryana (AIR 1995 SC 1795). The Bench comprising Justice Dr. A.S. Anand and Faizuddin observed that any conduct which has a tendency to interfere with the administration of justice or the due course of judicial proceedings amounts to the commission of criminal contempt. The swearing of false affidavits not only has the tendency of causing obstruction in the due course of judicial proceedings, but has also the tendency to impede, destruct and interfere with the administration of illegal detenus before the Supreme Court, the police officers filed false affidavits and forcibly compelled a detenu to do so. The Court rejected the apology tendered by the Police Officials, and imposed deterrent punishment on them. It also hauled up the Secretary of the Home Department, a respondent in the petition, for not filing counter additives for contempt and reprimanded him.

41. The Supreme Court has in the year gone by asserted its authority and the supremacy of the judiciary by exercising its Contempt jurisdiction. Earlier it hauled up five senior officers of the Maharashtra Government including the Education and Law Secretaries for contempt for non-compliance with its order concerning the quota for NRI admission to Medical Colleges. Recently, it held a senior IAS Officer, Vasudevan of Karnataka Government, guilty of contempt in regard to implementation of Reservation Policy and sentenced him to one month's simple imprisonment. Actually, the officer acted at the behest of the Chief Minister and his Cabinet, who were allowed to go sot-free. This is not only inappropriate and inequitous, but potent with the dangerous consequence of politicians defying court orders with disdain. For this, there has to be a change of the present system where the Bureaucracy has to bear the brunt of Government action whether before the Courts or the Parliamentary Committees. There is no reason why the Political Executive which pulls the strings from behind leading to the punishment of the bureaucrats should be allowed to go scot-free, it must be held answerable and accountable to the Judiciary and the Legislature for its actions and inactions. The Supreme Court could profitably think of laying down guidelines in this regard 'An Active Judiciary' by Madhv Godebole - Indian Express dated 23.12.1995).

42. In a short and crisp judgment, the Apex court observed that the guidelines laid down by it earlier in Laxmikant Pandey (Al R1984) SC 489) and Laxmikant Pandey (AIR 1986 SC 272) are exhaustive and emphasised the need for strict adherence to the guidelines. Justice R.M. Sahai speaking for himself and Justice B.L. Hansaria held that the absence of explanation by the authorised officer of the effect of adoption to the biological parents of the adopted child rendered the adoption infirm (AIR 1995 SC 1982 - Suman Lai Chotalal Kamar v. Miss Asha Trilokbhai Saha etc.).

42 A. The Apex Court came down heavily on the practice of deliberate misleading of the court by clients with or without the knowledge, consent or approval of the Counsel by producing fabricated or forged documents or swearing to false affidavit in Chandra Shastri v. Amit Kumar Varma, (1995) SCC 421). In the said case forged and fabricated documents were filed in court with the oblique motive of deceiving and defrauding the court. This, the court observed, resulted in interference with the administration of justice and amounted to contempt of court. The court, in contempt proceedings taken by it suo motu, emphatically stated the need for deterrent punishment. The contemner tendered apology after forming an impression that the court was of the view that he had committed contempt. The contemner in his affidavit stated that he would lose his job and his life would be shattered if he was held quality of contempt and punished. The court felt that the apology was not the outcome of real remorse or contrition, but was tendered as a weapon of defence-and hence not acceptable. With the view that it should serve as a deterrent and an eye-opener and holding that composition of fine will not suffice, the court awarded the contemner a punishment of two weeks imprisonment. In the opinion of the Bench consisting of Justice Kuldip Singh and himself, Justice Hansaria did, indeed, rightly inject a sense of fear and respect in the minds of men who try to play truant with legal and judicial institutions.

43. In matrimonial jurisdiction, the Supreme Court invoked its jurisdiction under Art.142 of the Constitution and granted divorce in Ramesh Chander v. Smt. Savithri (AIR 1995 SC 851). In a petition for divorce filed under S.13 of the Hindu Marriage Act, it was revealed that the marriage was dead emotionally and practically and that the husband was not dutiful and conscious of his responsibilities towards either his wife or his son. The Court felt that continuance of martial alliance will be cruelty, specially when the child born out of the wedlock had grown up and was employed. Though, the husband expressed remorse and willingness to transfer his only house to the wife to recompensate the wrong done by him, the court directed dissolution of marriage invoking its power under Art.142 of the Constitution subject to such transfer.

44. In Insurance law, a Division Bench of the Court clarified that comprehensive policy of insurance will not entitle the owner to claim unlimited ''ability u/S.95(2) of the Motor Vehicles Act, 1956 (New India Assurance Co. Ltd. v. Smt. Shanti Bai, AIR 1995 SC 1113).

45. In relation to the Laws of Contract and Specific Relief, an important decision was rendered by the Court in S.V.R. Mudaliar (dead) by L.Rs and others v. Mrs. Rajabu F. Behari (dead) by LRs. and others (AIR 1995 SC 1607). Where between the vendor and the vendee of two properties, it was recorded as gentleman's understanding that the vendee would reconvey the property sold to the vendee if the purchase money is paid along with solatium and the agent of the parties drew up an agreement to this effect, it was held enforceable. The proposition that in addition to the existence of an agreement and the presence of consideration, there is also a third element in the form of intention of parties to create legal relation on which the enforceability of the contract depends cannot be accepted, the court said.

46. In a spirit of judicial activism, Justice Venkatachaiaiah gave directions for execution of renovation and construction of mental aslyms in Rakesh Chandra Narian v. State of Bihar and others reported in AIR 1995 SC 208. The court had earlier appointed a committee with regard to the management of the Ranchi Mental Hospital and the control systems which needed second look. The committee was set up for suggesting administrative set-up for certain .mental aslyums. The reports and recommendations of the committee were accepted by the court, which directed the implementation of the report in the matter of administration, control and management of the asylum.

47. In a decision of far-reaching importance, the Supreme Court chastised the Government for the lapses of lawyers representing the Government resulting in difficulty to the Court and drain on the State exchequer. In Union of India and another v. Rahul Rasgotia and others (AIR 1995 SC 2337), dealing with the I.P.S. Probation Rules and I.P.S. (Cadre) Rules, 1994 Justice J.S. Verma speaking for himself and Justice N.P. Singh and N. Venkatachala placed on record their Lordships deep distress at the manner in which the cases of the Government are generally conducted in the Supreme Court and also when the Government approaches the court to overcome the consequence of an adverse order made against it. The court expressed its views with a feeling almost of despair since its constant lament orally, and, at times, even in writing, so far evinced (sic.) no appropriate response for improvement and recalled its observation in Union of India v. Radhakrishnan (1991) 3 SCR 895 : (1991) AIR SCW 2370) and regretted that there was no improvement in the situation. The court observed "We are not sure whether such lapses of persons responsible for conduct of the cases on behalf of the Government are deliberate or inadvertent, but they are certainly culpable which need to be investigated by the concerned authorities to identify the delinquent and punish them in public interest." These observations of the Apex Court should re-open the eyes of the Government or make it re-think and review its present policy of appointment of law officers of the State purely on political and communal considerations without any regard for quality, merit, experience or equipment. Even the high offices of Advocate General and Attorney General and Solicitor General have been degraded by appointing men of few ideas and fewer scruples in such posts by the Central and the State Governments.

48. In some of the selected cases discussed herein, the court over a span of time appear to have been inconsistent, albeit a paradoxical inconsistency, in wanting the best of both worlds, the private and the public.

49. These trends of the Apex judiciaries decision-making process and pattern remind one of Justice Thurgood Marshal's observation about the U.S. Supreme Court, "Power and reason is the new currency of this Court's decision-making - Neither the law nor the facts supporting Booth and Gathers underwent any change in the last tour years. Only the personnel of this Court did. In dispatching Booth and Gathers to their graves, today's majority ominously suggest that an even more extensive upheaval of this Court's precedents may be in store. Cast aside to-day are those condemned to face society's penalty, tomorrows victims may be minorities, women or the indigent,. Inevitably, this campaign to resurrect yesterday's spirited dissent will squander the authority and the legitimacy of this Court as a protector of the powerless' (Thurgood Marshal", Michael D. Davis and Hunter R. Clerk).

50. It will be profitable to recall the words of the U.S. Supreme Court Missouri Knights of the Ku Klux Klan v. Kansas City. "When men have realised that time has upset many fighting faiths, they may come to believe, even more than they believe, the very foundations of their own conduct that the ultimate goal desired is better reached by free trade in ideas - that the best test Of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. Those who won our independence believed that the final end of the State was to make men free to develop their faculties, and in its government the deliberative forces should prevail over the arbitrary.....they knew..... that it is hazardous to discourage thought, hope and imagination, that fear breeds repression, that repression breeds hate, that hate menaces stable Government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy tor civil counsels is good ones" ("In our Defence - The Bill of Rights in Action", by Ellen Alderman and Carolina Kennedy, P.- 32).

51. In Areopagitica - a speech for the liberty of unlicensed printing, John Milton wrote "Truth and understanding are not such wares as to be monopolised and traded in by tickets and statutes and standards. To Milton, sponsorship was the "greatest discouragement and affront that can be offered to learning and learned men."

52. Again, in New York v. Sullivan (1964) the U.S. Supreme Court wrote of a "profound national commitment to the principle that debate, on public issues can, should, be un-inhibited, robust and wide open. This basic power of the universe cannot be fitted into the outmoded concept of narrow nationalism. For, there is no secret and there is no defence, there is no possibility of control except through the aroused understanding and insistence of the peoples of the world ("In our Defence - The Bill of Rights In Action." Ellen Alderman and Carolin Kennedy, P. 49). These hortatory principles must have informed our Supreme Court in the decision taken in the Cricket Association of India case, and, perhaps, rightly too.

53. Even a non-lawyer such as former Prime Minister of Australia, Malcom Fraser, who promoted Administrative law reforms and, indeed, saw it as the major achievements of his seven years in office, argued that the legal system has taken de facto control over spending a good deal of public money, whereas the ultimate power over spending public money must reside with those who have the ultimate responsibility for procuring it - in the hands of the elected Government (Address to Seminar - Paper presented at Seminar on Administrative law - Retrospect and Prospect. Faculty of Law, Australian National University 15 & 16 May, 1987).

"Energetic government requires a responsive Bureaucracy, capable of efficiently translating stated Government policy into achievable administrative practice and effective programmes, free of bureaucratic foot-dragging or obstruction", as the Supreme Court said in S.P. Gupta's case (AIR 1992 SC 149 at 232).

54. There has been a recent tendency in the Apex Court's members to castigate and chastise the legal profession. The lawyers have been dubbed and dismissed as robbed oddities by the mainstream of the judiciary. Let us not forget that the Bar and the Bench belong to the same class and genre and the tendency is suicidal. As James G. Leyburn, the social scientist wrote, "when selfishness in the individual or ethnocentrism in the group exceed the willingness to make concessions to one's associates, there is an inevitable tendency towards disintegration of the band." Circumstances of such caustic comments from the Bench are a chilling commentary on the judiciary's sleeply disregard for lawyers' freedom.

55. We are now passing through a time where men and women, here around the world, have lost faith in their institutions. They are questioning, re-examining. At such a time, there can be nothing more healing than for them to participate directly in the reshaping of the institutions that no longer enjoy their confidence. Participation preserves the vitality of the institutions and nurtures a healthy relationship between the individual and the society. When people, for whatever reason - oppression, laziness or complacency - take no part in their institutions, the institutions themselves decay at an accelerating pace. Hence, we have to re-hash and re-shape the legal doctrines propounded and followed in the cosy, warm sunshine of Victorian prosperity. As Lon L. Fuller said in his anatomy of The Law, "law can appear as the highest achievement of civilization liberating for creative use human resources Otherwise dedicated to destruction. In man's capacity to perceive and legislate against his own defects we can discover his chief claim to stand clearly above the animal level. A shift in mood and all this bright glitter surrounding the law can collapse into dust. Law then become man's badge of infamy, his confession of ineradicable perfidy."

56. As an eminent former Judge of the Supreme Court observed, "A judge, like Epictetus, it has been aptly put, must recognize the impropriety of being emotionally affected by what is not under one's control. The Courts, it is also pointed out, have to be much more circumspect in seeing that they do not overstep the limits of their power, because to them is assigned the function of being the guardian of the Constitution.....The Courts have, I submit, to earn reverence through the test of truth. Contempt of court is too thin and fragile a reed to afford support to the majesty of the rule of law or the dignity of the Court." (Judicial Activism - II by Justice H.R. Khanna - The Hindu dated 28.9.95).

57. U.S. Supreme Court Judge Justice Jackson's advice to his colleague is memorable. "We are final, not because we are infallible; we are infallible because we are final."

Sweeping Sympathy or Justice Based on Law ?

(By S. Parameswaran, Advocate, High Court of Kerala)

Justice Frankfurter a liberal lawyer - was a conservative judge, who became the pre-eminent advocate of the doctrine of judicial restraint believing profoundly that personal preferences can have no place in judging, because to let them in produces a rule of men, not laws. To emulate Frankfurter will not be construed as a reactionary metamorphosis or masochistic in ruling contrary to one's powerful libertarian beliefs. These prefatory observations are made in connection with a decision of a Division Bench of the Kerala High Court comprising Justices P.A. Mohammed and D. Sreedevi in Oriental Insurance Co. Ltd. v. T.P. Balakrishnan (Judgment dated 24-9-1999 in M.F.A. Nos.642 & 643 of 1996 (reported in 1998 (2) KLT 954). Giving a very narrow interpretation to S.147(2) of the Motor Vehicles Act, 1987, their Lordships dismissed the appeal of the Insurance Company holding that the breach of conditions of the policy did not immunise the insurer from liability to pay compensation to the victim of a motor accident. The reliance placed by the Bench on the Supreme Court decision in B.V. Nagaraju v. Oriental Insurance Co. Ltd. (AIR 1996 SC 2054) and its understanding of the dictum do not appear to be correct. It is not discernible as to what their Lordships mean by saying after extracting the observations of the Supreme Court, "As a matter of fact, no such contributory factor is involved in the present case. What is involved here in the present case is without the knowledge of the owner of the vehicle, the driver has carried passengers in excess of the permitted number of passengers. This is an irregularity committed by the driver and that cannot be attributed to the owner of the vehicle, was used for not allowed by the permit."

These observations and holding, with respect, fly against the concept and content of vicarious liability. It is perhaps redundant to remind their Lordships that the liability for payment of compensation is fastened on the owner of the vehicle on the doctrine of vicarious liability, which is accepted and not anathema to the Law of Torts which is the sheet-anchor of the relevant chapter of the Motor Vehicles Act. The anxiety of the court to make available compensation to the helpless and hapless victim of a motor accident is understandable and appreciable. But it is a trite truism that justice has to be rendered by the court according to law, however distasteful some of the statutory provisions or principles may be to the court. One may profitably refer to the following words of the illustrious American Supreme Court Judge Frankfurter in the opinion delivered in Barnette revising Gorbitis by rendering the solitary voice of minority as a lone and embattled dissentuer. Perhaps, this is one of the most personal paragraphs ever written by a Supreme Court Justice is an attempt to justify his position to a perplexed Bar and Bench. Said Frankfurter "As a member of this Court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard. The duty of a judge, who must decide, which of two claims before the Court shall prevail, that of a State to enact and enforce law within its general competence or that of an individual to refuse obedience because of the demands of his conscience is not that of the ordinary person."

To follow Frankfurter in matters like this will not make the concerned judge a fallen liberal or a born-again conservative. Perhaps, that the judge was merely an intellectual attempting to do his duty as he abstractly saw it was too subtle an idea for popular consumption. It is true that our High Court like other High Courts of this country, during the last three decades has set in motion the fright-train of liberal decision making that rumbles through thirty years of Kerala life with certain awful exceptions. But, pragmatism need not look like anti-intellectual good-old-boyism, it could be result oriented and determined to do justice regardless of technical or legal constraints. The court's feel for the average person or common man may translate into sympathy for oppressed individuals and victims of accidents. But, that need not, and, indeed, should not be the motivating or deciding factor in every decision. The established precedents and principles, which should dominate judging are not to be discarded as verbal technicalities to be manipulated in the service of common sense, where justice truly lay. Or, in other words a judge should not permit his powerful personal belief to overcome his stern professional code or to lay down lines of doctrinal demarcation.

In B.V. Nagaraju the factual matrix was totally different from that in the case under discussion. In that case, it was not alleged that the driver of the insured vehicle was responsible for the accident. It is in that context that the court observed - and, with respect, perhaps, not correctly - "By merely lifting a person or two or even three by the driver or the cleaner of the vehicle, without his knowledge, cannot be said to be such a fundamental breach that the owner should, and in all event, be denied (sic) indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract unless some factor existed which by themselves had gone to contribute to the causing of the accident."

Mind you, in the case before the Supreme Court the coming vehicle had collided head on with the insured vehicle. How could these observations in the Supreme Court decision form the rationale for the decision of the Kerala Division Bench is anybody's guess.

In Skandia Ins. Co. Ltd. (AIR 1987 SC 1184), what the Supreme Court said was that a mere breach of clause does not absolve the insurer of the liability and he has to establish that the insured himself was guilty of committing breach of promise in the contract of insurance. This also does not lend support, substance or sustenance to the dictum of the Kerala High Court.

Justice E.S. Venkataramiah's observations on behalf of himself and Justice Bhimayya in Madras Motor and General Insurance Co. Ltd. and another v. Nanjamma and others reported in AIR 1977 Karnataka 46, relied on and referred to by Justices Mohammed and Sreedevi also do not support or strengthen the view of their Lordships. What the Karnataka Division Bench said in a case arising from a motor accident resulting in the death of seven persons was that the mere fact that the car was overloaded, that it carried passengers in excess of permissible limit, does not mean that it was used for a different purpose and thereby immunise the insurer from liability. That question and proposition is totally different and distinct from that in the case under comment. This writer emphatically and candidly admits that we should not allow the monopolistic insurance companies to defeat justice by sleezy maneuverings or resort to hyper-technicalities or hair-splitting arguments. But, one should not consider the Law of Torts and the Law of Contract as mere relicts to be encased and embalmed in shroud and frozen in time, no longer laws to be applied to new situations.

'No Limitation without Knowledge - Actual or Deemed'

(By M.R. Rajendran Nair, Advocate)

Decisions given in ignorance or forget fullness of some inconsistent statutory provisions or of some authority binding on the Court concerned are called 'per incuriam'. Where, by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedent. ((1975) 2 SCC 232)

On this premise it is submitted that the apex court's decision in Tota Ram v. State of U.P. - JT 1997 (6) SC 231, to the effect that the limitation of 3 months under S.28A of the Land Acquisition Act 1894 starts from the date of order and not from the date of knowledge is clearly wrong. It is per incuriam. In Raja Harish Chandra Raj Singh v. The Dy. Land Acquisition Officer (AIR 1961 SC 1500), while construing the proviso to S.18 of the Land Acquisition Act the Supreme Court held that "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award was either communicated to the party or is known by him either actually or .constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collectors award' used in the proviso to S.18 in a literal or mechanical way."

There is no reason why the phrase 'date of award of the reference court' should be differently construed. The Supreme Court in Harish Chandra's case observed that the view taken by the High Court proceeds on the literal constructions of the relevant clause, and that the literal and mechanical construction of the words, 'the date of award' occurring in the relevant section would not be appropriate.

In Assistant Transport Commissioner v. Nand Singh (AIR 1980 SC 15), within the meaning of S.15 of Utter Pradesh Motor Vehicles Taxation Act, it was the date of the order which gave the starting point for preferring an appeal within 30 days of that date. The Supreme Court held that in a given case, the date of putting the order in communication under certain circumstances may be taken to the date of communication of the order or the date of the order. Following Harish Chandra's case, appeal filed within 30 days of the date of knowledge was held to be within time. It was .observed that generally speaking the order would be effective against the person affected by it only when it came to his knowledge either clearly or constructively, otherwise not.

In Collector of Central Excise v. M.M. Rubber and Co. AIR 1991 SC 2141 it was held that so far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order.

Therefore, courts have uniformly laid down as a rule of law that for seeking the remedy, the limitation starts from the date on which the order was communicated to him or the date on which it was pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing of the passing of the order and what it contains. The knowledge of the party affected by such a decision, either actual or constructive is thus an essential element which must be satisfied before the decision can be said to have been concluded and binding on him otherwise the party affected by it will have no means of obeying the order or action in conformity with it or of appealing against it or otherwise having it set aside. This is based upon, as observed by Rajamanner, C.J. in Muthia Chettiar v. CIT (AIR 1951 Mad 204) (supra), "a statutory and just principle". The application of this rule so far as the aggrieved party concerned is not dependent on the provisions of the particular statute, but is so under the general law".

'In Dhara Singh v. State AIR 1981 SC 427 following AIR 1961 SC 1500 it was held that when the law lays down that non-compliance with an order could expose the person against whom it is made to criminal liability it is reasonable to hold that in the absence of proof of his knowledge of the order no penal action can be taken against him for non-compliance with it. The information or knowledge in the course of criminal proceeding instituted for non-compliance could not be a substitute for the knowledge which should ordinarily precede the institution of such proceedings.

Thus, when the Supreme Court has laid down the law in unequivocal terms, and it is settled legal position that no Judge in India except a larger Bench of the Supreme Court without a departure from judicial discipline can whittle down, wish away or be unbound by the ratio of a binding decision, the decision of Supreme Court in JT 1997 (6) SC 231 has to be viewed as per incuriam and for that reason the decision of the Kerala High Court reported in 1997 (2) KLJ 520 does not reflect the correct legal position.

A distinction has to be drawn between a case where an order is passed in presence of parties, actual or constructive or with notice, and where such order is passed without notice and in their absence. In the latter case, 'date of the order' should necessarily mean date on which the concerned party comes to know about the Order either by communication or otherwise. To act on the basis of an order without actually coming to know about that will be an impossibility. Law never prescribes 'impossibility' and therefore, in order to avoid the 'impossibility' of an action contemplated by law interpretative innovation should lead to a purposive construction, so that the statutory provision does not become illusory.

No Cause of Action, not Maintainable, but Decreedi

(By M.R. Rajendran Nair, Advocate, Ernakulam)

Can the plaintiff in a Civil Suit for specific performance of a contract get over the personal bar to relief under S.16(c) of the Specific Relief Act, depending upon status of defendant. According to the decision of Supreme Court in Jug Raj Singh and Anr. v. Labh Singh & Ors. reported in (1995) 2 SCC 31, defendants, non parties to the contract will not be entitled to contend that the plaintiff was not read} and willing to perform his part of the contract. According to the Supreme Court the plea is specifically available to the Vendor/Defendant and it is personal to him. Subsequent purchasers have got .only the right to defend their purchase on the premise that they have no prior knowledge of the agreement of sale with the plaintiff.

The Supreme Court stated the position as follows:

"Though they are necessary parties to the suit, since the decree obtained by the plaintiff would be binding on the subsequent purchasers, the plea that the plaintiff must always be ready and willing to perform his part of the contract must be available only to the vendor or his legal representatives but not to the subsequent purchasers".

It is submitted that this statement does not reflect the correct legal position as can be seen from the settings of the provision and the binding precedents. S.16(c) of the Specific Relief Act reads as follows:-

"16. Personal bars to relief:- Specific performance of a contract cannot be enforced in favour of a person.

xxxx          xxx      xxx

(c) who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him other than terms the performance of which has been prevented or waived by the defendant.

Explanation (ii) to CI. (c) also is relevant.

(ii) the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction".

Absence of averment as stipulated in S.16(c) of Specific Relief Act, 1963 and proof thereof will be fatal to a plaintiff in suit for specific performance.

In Ouseph Varghese v. Joseph Aley reported in (1969) 2 SCWR 347 the Supreme Court held as follows:

"........... He must further plead that he has been and is still ready and willing to specifically perform his part of the agreement. In the absence of such an allegation the suit is not maintainable. In the present case, the plaintiff did not plead either in the plaint or at any subsequent stage that he was ready and willing to perform the agreement pleaded in the written statement of the defendant. A suit for specific performance has to conform to the requirements prescribed in Forms 47 and 48 of the First Schedule in the Civil Procedure Code".                       (Emphasis supplied)

Where a suit is not maintainable for lack of pleadings how can it become maintainable depending on any plea available or not available to any defendant. There is no provision in law which stipulates that a particular class of defendants will be precluded from raising a contention to the effect that the suit is not maintainable or that the plaintiff had the cause of action.

The relevant paras of the Forms 47 and 48 of the 1st Schedule in the Civil Procedure Code are reproduced below:

"3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice." (Form No.47)

"5. The Plaintiff is still ready and willing to pay the purchase money of the said property to the defendant". (Form No.48)

Of course in view of the ruling of the Supreme Court in Pandu Rang Ganpat Janawade v. Ganapat BAAIRU Kadam (1996) 10 SCC 51 and Sukhbiv Singh v. Brijpal Singh (1997) 2 SCC 200, procedure being hand maid to substantiate rights of parties, a strict conformity with the form may not be necessary. But the necessary ingredients constituting readiness and willingness must be pleaded and proved. What requires to be considered in whether the essential facts constituting the ingredients in S. 16(C) of the Act were pleaded.

The consequence of plaintiff not complying with the mandatory statutory requirement of S.16(c) of Specific Relief Act is also very specific. If there is no averment of 'readiness' and 'willingness' the plaint will not disclose a cause of action and the same will have to be rejected under O.7 R.11(a) or (d), according to which the plaint shall be rejected where it does not disclose a cause of action or where the suit appears from the statements in the plaint to be barred by any law. That in the absence of the specific averment of 'readiness' and 'willingness' it must be held that the plaintiff has no cause of action is concluded by the decision of Supreme Court reported in AIR 1968 SC 1355.

"It is well settled that in a suit for specific performance the plaintiff should allege that he is ready and willing to perform his part of the contract."

xxxx          xxx             xxx

"In a suit for specific performance, on the other hand, he treated and was required by the court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness."

xxxx          xxx             xxx

"In the present case there is absence of an averment on the part of the plaintiff in the plaint that he was ready to perform his part of the contract. In the absence of such an averment it must be held that the plaintiff has no cause of action so far as the relief for specific performance is concerned.       (Emphasis supplied)"

A suit which is not maintainable or a suit which does not disclose any cause of action cannot be given life looking at the availability of plea to any defendant. In Jug Raj Singh's case, Supreme Court is clearly wrong in-stating that the plea of maintainability or absence of cause of action in the light of and S.16(c) of the Specific Relief Act is personal to Vendor/Defendant. Even without any plea from any of the defendants the court is bound to reject the plaint, in the absence of required averment and to dismiss the suit in the absence of proof if the averment is traversed.

In Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 it was held that even a transferee of possession under an agreement for sale must have performed or must be willing to perform his part of the contract. It was observed:

"Even otherwise, in a suit for possession filed by the respondent, successor«-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. Under S.16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when the transferee seeks to avail of S.53 A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He also comes to enquiry must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract."

No court can decree a suit when there is no cause of action disclosed, and when it is not maintainable.

Section 138 of the Negotiable Instruments Act Still a Floating Law

(A comparative version of two rulings reported in 1996 (2) KLT 449 & 1997 (1) KLT 302)

(By Dinesh M. Pillai, Advocate, Kattappana)

To enhance the acceptability of cheques in the common transactions, by making the drawer liable for criminal prosecution, in case of dishounour of cheques for insufficiency of fund in account, the Negotiable Instruments Laws (Amendment) Act 1988 was introduced which came into force from 1.4.1989. The said Act itself provides adequate safeguards to prevent harassment of honest drawers.

After the enactment of the amended Act, there came a lot of criminal complaints filed before various courts in our country for the prosecution of the dishonour of cheques for want of fund in account. The people found and took the amended Act and the proceedings there under as an easiest way to get back their amounts covered under the dishonoured cheques, even though the Act is intended to punish the offenders there under. The Act itself provides for double the amount as fine in addition to one year's imprisonment as punishment. So naturally, monetary interest has a key role behind every complaints under the N.I. Act, distinguished from those under the other Penal Laws. In practical experience, we can see that a lot of complaints filed under the NI Act has been not proceeded by the complainants after they effect a monetary settlement with the accused.

The amended Act which is more technical one, provides many mandatory requirements to be complied before bringing a person for the prosecution of the offence under the Act. The said provisions are constantly subjected to various interpretations by the higher judicial authorities and presently the Act has become a floating one.

Ever since the enactment of the Negotiable Instruments Laws (Amendment) Act, 1988, there came a flood of rulings from the higher judicial authorities touching the various provisions of the Act in many perspectives. Many of the said rulings are mutually contradicting and most of them had put the provisions of the Act in confusion. The said instability and confusion arose by various rulings have made the litigants and lawyers in a hazardous situation.

The relevant sections of the Act being penal, of course, a strict interpretation of the same is warranted. But it cannot be neglected that the punitive acts under the Act are not any thing touching the public tranquility or involves any moral turpitude but only affects between two persons. It can be seen that the Legislature had the above view in its mind and hence, only presumption in favour of the holder of cheque provided under S. 139 of the Act is introduced and various other presumptions in favour of the holder under the unamended NI Act was retained. Whatever may be the mode of interpretation, the most important aspect is that there should be stability to the legal proposition, so as to avoid confusions. The perusal of the various rulings of the higher judicial authorities on the Act for the last 8 years would show that the place of initiation of prosecution, the number of times for which the cheque can be presented, the mode of service of notice of dishonour, the required mode of dishonour of cheques, the requisites of a valid notice are few of the matters connected to the short amendment Act which are disputed among themselves and still not finally decided. The various High Courts among themselves and our own High Court among its own various judgments are having difference of opinion over each aspects of the above said and other provisions of the Act. Of course it would go without saying that the above said instability in judicial decisions make the position of the litigants as well as lawyers very much difficult.

It is in this circumstance that two of the rulings under the NI Act reported in 1996 (2) KLT449 and 1997(1) KLT302, both delivered by Honourable Justice Rajasekharan called my attention and compelled me to write few lines on the same. In both these rulings his Lordship was pleased to weigh the requirements of a notice under S.138 (b) of the NI Act.

The proviso to S.138 of N.I. Act provides three mandatory requirements for the application of the penal provisions of S.138 of the Act. Sub Clause (b) of S.138 reads - the payee or the holder in due course of the cheque as the case may be, makes a demand for the payment of the said amount of money by giving notice in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid.

As the readers are aware with the facts of the two cases involved in the above referred two rulings, I am not wasting space of this journal by discussing the same. My only attempt is to bring forth the legal aspects involved in the said two rulings and to invite the attention of the readers to the same.

In the ruling reported in 1996 (2) KLT 449, while considering the question whether the mentioning of wrong cheque number in the notice under S.138(b) of the N.I. Act would mislead the drawer and whether there is sufficient compliance of S.138(b) it was held that "It is enough that the notice mentioned the fact of issuance of a cheque, the presentation of the cheque for encashment, dishonour of the cheque and demand for the money covered by the cheque". It was further found that the mention of a wrong number of cheque will not alter the situation where there is only single transaction of issuance of cheque between the parties.

In the ruling reported in 1997 (1) KLT 302 the question considered was whether the notice claiming higher amount or lessor amount than that in the cheque makes the notice insufficient. Relying on a decision of the Calcutta High Court, reported in 1996 (2) KLT 886, it was found that a notice claiming higher or lessor amount than the amount covered by the cheque makes the notice insufficient.

In the case decided by the Calcutta High Court, the amount covered by the cheque was Rs.5,79,000/- and the amount claimed by the notice was Rs.6,50,000/-. In the case where upon the decision reported in 1997 (1) KLT 302 was arrived at, the amount covered by the cheque was Rs.40,000/- but in notice the said amount together with interest not mentioning any rate was also claimed and the said notice was decided to be insufficient.

With due respect, I may express my sincere fear that the above said two rulings of the same court have put the legal proposition of S.138(b) of N.I. Act in a mutually contradicting position and confusious. The first ruling provides that an error even of cheque number mentioned in the notice is immaterial as it does not mislead the drawer of the cheque, where as the second ruling says that the mere claim of the complainant in the notice for the interest in addition to the cheque amount makes the notice illegal.

Even though the provisions of the amended N.I. Act, being penal, needs strict interpretation, the real intention behind S.138(b) is to give the drawer of the cheque ar opportunity to get out of his liability by paying off the amount within the stipulated period of time. I may express my sincere doubt whether the above said aspect was considered while delivering the ruling reported in 1997 (1) KLT 302 after having discursed it otherwise the ruling reported in 1996 (2) KLT 449.

As it is well aware, the dishonour of a cheque invites not only criminal action but also civil action, the simultaneous proceedings of both are permissible. The notice issued by the drawer after the dishonour of a cheque may be to afford an opportunity to avoid both civil and criminal proceedings by payment of the amount. So, the question which needs consideration is whether the mere claim for interest on the cheque amount, or the cost of the legal notice in addition to the specific claim for cheque amount in the notice for which the drawee is otherwise legally entitled would vitiate the entire notice under S.138(b) of N.I. Act.

The solemn attempt of the article is to bring forth the instability in the judicial decisions regarding the various provisions of the N.I. Act and to invite the attention ol the enlightened readers to the difficulty causing to the litigants and the lawyers in this regard.

I hope that the higher judicial authorities would soon make appropriate steps in the matter and would put the Negotiable Instrument Act in a stable shore, saving the same from all the fluctuations.