Lincoln and Legitimate Expectation

(K. Sukumaran, Senior Advocate, Supreme Court)

There is much confusion even now on that elusive concept of legitimate expectation. Even among lawyers and judges. That emphasises the necessity of avoiding legal jargon and describing ideas in simple sentences. There is none to match in that exercise Abraham Lincoln, our own affectionate Abe. Who could give a better illustration of 'Democracy', in easy-to-understand language-as government of the people, and by the people, for the people. The idea is crystal clear. 'Legitimate expectation', as a legal concept, is of comparatively recent origin. Yet the abiding principle was known to the genius of Law. Little wonder then, that Lincoln could reach the core of the concept.

The story dates back to 1838. The place is Kentucky-well known for its chicken-charisma. Mrs. O.H. Browning, wife of his friend suggested to Lincoln that he should become her brother-in-law. And quickly too. Lincoln accepted the proposal, because he was 'most confoundedly well pleased with the project'.

Soon there was a visit by the lady-friend, this time with her sister. Lincoln inferred that it was an indication of agreement to a matrimonial arrangement. Lincoln had met her but a few years back. Lincoln was willing, as was Barkis. The girl was summoned to have a personal acquaintance. After all, they are to live as man and wife, till death doth them part. She came all the way to Kentucky, where Lincoln was then practicing as a lawyer. When they met Lincoln had the shock of his life. Time can play wonders with a feminine face. That happened here as well. Matters were tending to a tragedy, sadly enough.

The face of the innocent girl Lincoln had preserved in his mind had totally evaporated. Instead, there was a corpulent woman, who looked forty. His mind tossed like an Indian swing. At last, he came to a firm and logical conclusion.

The reasoning was perfect logic, it even had the grain of a sound legal principle, which in later times had been 'much laundered by lawyers and ironed out by judges, not always without a crease. We have a pet name for it: Legitimate Expectations.

The girl would have had great expectations of a congenial matrimonial home. She had acted on his representation, signifying his willingness to marry her. Indeed she had altered her position to her detriment, by so acting on the representation.. Then, it is neither proper or just to frustrate her desires or distress her by an irretrievable disappointment. Lincoln made up his mind: to marry her.

Lincoln sincerely and tenaciously tried to discover beauty in all her features. He almost succeeded, except as regards the face. If that is Fate, Lincoln would not meddle with it.

They had a long stroll. Many topics were discussed, some relevant, and some utterly irrelevant. A romantic sauntering does not limit the topics of conversation to rational themes. At long last, Lincoln came to the point. Mustering all courage, Lincoln, did propose to her. The reply was taken for granted.

Lincoln had told the sister that he would take her for better or for worse. "I made it a point of honor and conscience in all things to stick to my word, especially if others INDUCED TO ACT ON IT...." he has stated. Mark the other words as well:

'Well' thought I, 'I have said it, and be the consequences what they may, it shall not be my fault if I fail to do it'.

Lincoln also tried to convince himself that 'the mind was much more to be valued than the person'. In that she was not inferior to any with whom he had been acquainted.

There was yet another assurance. During the stay there, Lincoln had 'letters from her which did not change his opinion of either her intellect or intention, but on the contrary confirmed it'.

When we remember that Lincoln was a lawyer at that time, we can appreciate his narrative better in his inimitable style:

"As the lawyer says, it is was done in the manner following, to wit: After I had delayed the matter as long as I thought I could in honor do, I thought I will bring it to a consummation without further delay and so I mustered my resolution and made the proposal to her direct; but shocking to relate, she answered. No. At first I thought she did it out of an affection of modesty... but on my renewal of the charge I found it that she spelled it with greater firmness than before. I tried it again and again, but with the same success, or rather with the same want of success.'

The tragedy was complete.

Lincoln neatly summed up the position. "Others have been made fool of by the girls,.... I most emphatically in this instance, made a fool of myself'.

All these facts are chronicled in Lincoln's letter to Mrs. O.H. Browning which, interestingly, and significantly too, is dated 1st April 1838.

The moral of the story is a glittering beacon.

If principles of Promissory Estoppel' have been somewhat couched in confusion in India, one can see in Lincoln's words clarity in every sense. For, he had no slant towards Executive nor undue sympathy towards the promise.

One of the latest and well considered judgments on this complex concept is rendered by Majmudar and is reported in (1998) 2 SCC. Thomas J. followed that path in a still later decision in (1998) 7 SCC. Yet Anand, J., as he then was, persisted on (what many may feel) a narrow view even when later decisions indicating a contra view had been presented before him. (Prima Industries case)

Lincoln's description of 'Promissory Estoppel' is as clear and instructive as his definition of 'Democracy'. Making a promise a matter of honour, has other enduring advantages. No industrialist or entrepreneur would rush to a State where one could only witness a procession of cradles and coffins in promises. Did not poet Frost sing:

"The woods are lovely dark and deep

But I have promises to keep."

New Year Gifts - A Post Mortem [1]

(Salim Kambisseri, Asst. Public Prosecutor, Grade I, Changanacherry)

The first part of 1999 (1) KLT has published two decisions out of which one to an extent, create doubt about the correctness of judicial reasoning and the other requires some clarification.

Sreenivasa Shenoy - A Legal Anatomy [2]

Facts are briefly worded as follows:

The petitioner was an accused in a P.F.A. Case before the Chief Judicial Magistrate, Ernakulam for the sale of the adulterated Toor Dal, which according to the Public Analyst contained 7.6% by weight of Kesari dal. At the instance of the accused the second sample was sent to Central Food Laboratory, Ghaziabad invoking the provisions of S.13(2) of the P.F.A. Act. The Certificate issued by the Director, Central Food Laboratory in Form II showed that the sample contained the presence of synthetic coal tar colour and hence adulterated. As per the certificate Kesari Dal was absent.

Even though some of the contentions were rejected by Madam Justice Sree Devi, it is apparent that she seems to have inspired by the contention of the counsel for the petitioner that since the Certificate of C.F.L. disclosed that the sample contained coal tar colour, which is prohibited by law, is a new offence and a "fresh consent" from appropriate authority" has to be obtained.

Madam Justice Sree Devi Observes:-

"Accepting this decision, I have to hold that a fresh sanction is necessary to proceed further with the case. Therefore, I direct that the learned Magistrate before proceeding further, will give the prosecution an opportunity to place the certificate of the Director of Central Food Laboratory before the appropriate authority for consideration and consent for continuance of the prosecution and in the event of no such consent of the appropriate authority is obtained and produced before the Magistrate within a reasonable time, not exceeding one month for the purpose, the learned Magistrate shall discharge the accused and drop the present proceedings. In the event of any such consent is obtained and produced by the prosecution, within the time allowed, the learned Magistrate may proceed with the disposal of the present proceedings in accordance with law. I do not find any ground to quash the charge Annexure-C dated 10.3.1997 of the Court below".

With due respect I have to submit that no question arise in this case for a "fresh consent" from "appropriate authority" as a consent is not at all required in this case since this is a complaint instituted by a Food Inspector by virtue of authorisation by the Government of India. It is only a complaint by an officer authorised for the purpose under S.20 of the P.F.A. Act.

S.20(i) of the P.F.A. acts is reproduced below to get a clear picture:-

"No prosecution for an offence under this Act; not being an offence under S.14 of S.14A; shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special order, by the Central Government or State Government. (emphasis supplied)

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred in S.12, if he produces in Court a copy of the report of Public Analyst along with the complaint."

Nay Sanction Nor Consent

On a careful reading of the above section with caution and circumspection with particular reference to the "comma" used in the section immediately after the word "except by" and also the meaning of the word "or" immediately following the "comma" will point out the following;-

There are two sets of authorities or persons empowered to launch prosecution under this Section. The persons empowered to launch prosecution are:-

a) Central Government, State Government and a person authorized by general or special order, by the Central Government or State Government.

b) Persons with the written consent of the Central or State Government or the written consent of a person authorised by general or special order, by the Central or State Government

In this case the complaint was filed by the Food Inspector by virtue of the authorisation which has been produced and proved in this case. Therefore, evidently this is not a prosecution instituted by the State Government. So according to this writer in this case the question of "sanction" or "fresh sanction" does not arise in this case.

I am buttressed in this view by the following two decisions:- (1) Food Inspector, Kasargod Circle v. K. Sankara Moolya [3] and (2) Food Inspector v. Arunachalam [4].

In the instant case the Government of Kerala issued a revised notification as G.O. No.6104/G3/95 H & FWD dated Thiruvananthapuram 20th March 1996 published in Extra ordinary Gazette dated 29th March 1996 (S.R.O. No.319/96) in exercise of sub-S.(1) of S.9 of P.F.A. Act 1954. Above G.O. was issued in suppression of all notifications on the subject, which appoints the complainant in this case also to be the Food Inspector for the local area mentioned against his name. The Explanatory note makes it clear that the Food Inspector is an authorised officer to file complaint under S.20 of the P.F.A. Act which reads as follows:-

"As per S.20 of the P.F.A. Act 1954 prosecution of offence under this Act shall be instituted except by, or with the written consent of the State Government. It is necessary that the Food Inspectors are authorised to institute prosecutions for offence under the said Act. This notification is intended to achieve the above object."

Admittedly, the prosecution having been launched by the Food Inspector who is an authorised officer by the Government of Kerala to institute prosecutions for offences under the Act, it goes without saying that no consent of Central or State Government is necessary for launching prosecution. So the question of "fresh consent" also does not arise. In this context, it is unfair on my part if I side step a Supreme Court decision Suresh M. Rajput v. Bhartiben Pravinbhai Soni & Ors. [5] A plain reading of para.5 of the above decision may confuse the mind of a reader that sanction is invariably necessary in all cases. In that case, the L.H.A. was designed as sanctioning authority. Question raised in that case was that whether the sanctioning authority has applied his mind to the report of the Public Analyst and other pertinent papers and documents submitted by the Food Inspector. That decision is not at all applicable in this case.

If for argument sake, one admits that consent is obligatory even then fresh sanction is not at all necessary, according to a catene of decisions. [6]

A contrary view in favour of the decision under discussion is reported in Rattan Lai and etc. v. State of M.P. [7] Earlier the best is to interfere the decision by a larger Bench. The author genuinely believes that the notification extracted above and the legal aspects projected by me might not have been brought to the notice of the learned single Judge.

Regarding Balan v. State of Kerala

In this case, it was held by his Lordship Justice Narayanan Nambiar that the reports of the Excise Inspectors can be treated as complaints relying on the decision reported in 1991 (2) KLT 323. Since the case was taken on file before the amendment of the Act, i.e., before 3.6.1997, the view is correct. But there is every possibility to confuse the mind of the professional infants. S.50 of the Abkari Act says that every report of the Abkari Officer can be treated as a report in accordance with sub-s.(2) of the Act of S.173 Cr. P.C. and it is extracted below:-

"As soon as investigation into the offences under the Act is completed, the Abkari Officer shall forward to the Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-s.(2) of S.173 of the Code of Criminal Procedure 1973".

S.50A also makes clear the position. This author submits that above decision is not at all applicable to cases detected after 3.6.1997.

___________________________________________________________________

Footnotes:

1    In this Article the author wishes to comment upon Sreenivasa Shenoy v. Food Inspector,1999(1) KLT 17 and Balan v. State of Kerala, 1999 (1) KLT 13.

2    Cited Supra.

3    1986 (1) I.L.R. 607 Kerala.

4    1992 Crl. LJ.3930 (Mad.)

5    1996 Crl. L.J.1621.

6    See for instance 1977 Crl. L.J. 122 All., 1978 Crl. L.J.1036, 1989 (2) FAC 190.

7    1991 Crl. L.J.3302.

Unconstitutional Walk-Out

(By T.P. Kelu Nambiar, B.A.M.L.)

We find news-papers reporting every day or every third day that the Opposition staged a walk-out from the Assembly for one reason or the other. This walk-out is certainly on exhortation by the Leader of the Opposition. Here, the Leader forgets the Constitutional oaths taken by him and his duties under the Constitution. On a survey of the matter, I am inclined to take the view that such walk-outs are unconstitutional. I should think that this topic is of tremendous validity in these days. Therefore I have decided to take it out of my casket of silence.

A member of the Legislative Assembly represents a particular territorial constituency as provided for in Article 170 of the Constitution of India. Let it be noted that a Member of the Legislative Assembly is not a representative of only the electors whose votes enabled him to succeed; once elected, he becomes the representative of the particular territorial constituency as such. Like that, when elections are held to all the territorial constituencies of the State, the members elected collectively represent the entire State.

When a person offers himself as a candidate for election to the Legislature of the State, he is bound to take a Constitutional oath/affirmation as provided for in the Third Schedule to the Constitution of India. The oath/affirmation is as follows:

"I,...............having been nominated as a candidate to fill a seat in the Legislative Assembly, do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to die Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."

Before taking seat in the Legislative Assembly on his election, the elected Member has to take a Constitutional oath/affirmation. This is also provided for in the Third Schedule. The oath/affirmation is as follows:

"I,.........having been elected a member of the Legislative Assembly do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter." (underlining supplied).

The Constitution includes within the functions of the Legislature, the function of expressing the opinion of the people, the function of informing the people of what it does, the function of properly teaching the public as well as the functions of legislation and finance. Bagehot has spoken of the expressive function, the teaching function and the informing function of the House of Commons. Same are the functions of a Legislature of a State. The Legislature "is a sounding-board" of the State's grievances and opinions; legislators are expected to create without destroying; and, according to John Stuart Mill, who spoke of the functions of the House of Commons, it is an arena in which not only the general opinion of the nation, but that of every section of it can produce itself in full light and challenge discussion. The Members of the Legislature who do not hold ministerial office need the political will to do more than simply sit in or quit from the Legislature. The proper office of a representative Assembly, in the words of Mill, is to watch and control the Government; to compel a full exposition and justification of all of them which anyone considers questionable; to throw the light of publicity on its acts; to censure them if found condemnable; and, if the men who compose the Government abuse their trust or fulfill it in a manner which conflicts with the deliberate sense of die nation, to expel them from office. But, not to run away from the Legislature off and on. When the Opposition walks-out of the Assembly the political party/parties running the Government will not have to face any opposition; and several business would be taken up and completed in the absence of the Opposition, without any discussion and difficulty. That is facilitated by the intermittent out-door peregrinations of the Opposition. Nothing is gained by such exit; but many things are lost. No profit it derived; but huge loss is incurred. When the Legislative Assembly is in session, the duty of a Legislator is inside the Assembly, not out-side. True to his oath, he has to faithfully discharge the duty upon which he had entered, as a Member of the Legislative Assembly. He cannot run away from that duty, whatever be the subject of consideration, - be it pivotal or peripheral, major or marginal, profound or profane. Such act of running away is verily unconstitutional: and breach of the Constitutional oath. Running away from duty cannot be equated to registering a protest. As representatives of territorial constituencies, the Members of the Legislative Assembly owe duty to the people of the respective territories by representing them in the Assembly. This is a Constitutional duty.

Have the members of the Opposition ever considered the question as to whether their boycott of the Assembly is liked or disliked by the people who have facilitated their entry to the Assembly.

The above are some of my thoughts on an important constitutional aspect. In fact, this topic is fit to be made one for public discussion, because the public are the persons affected by the Legislators keeping away from the Legislative Assembly, thereby remaining on the wrong side of the Constitution.

I should even think that there should be a law enabling the people of the territorial constituency to call back their member who runs away from his duty to the people, and that, in violation of the Constitutional oath taken by him. When the Irish tenants joined together and declared that they had nothing to do with Captain Charles Boycott of Country Mayo in order to coerce him to lower rents in hard times, they would never have contemplated that future legislators in India would run away from their duties in the name of Captain Charles Boycott. Erskine May and Charles Boycott are verily strangers.

Negotiable Instruments Act, Chapter XVII Defeats the Purpose

(By Advocate S.A. Karim, Thiruvananthapuram)

The Negotiable Instruments Act, 1881, is century old one. By Amendment Act, 66 of 1988, Chapter 17 has been introduced in the main Act. This Chapter is only ten years old. It contains Ss.138 to 142. The amendment intends to discourage the unscrupulous dealings in cheque and to get back the cheque amount to the payee or the holder in due course. Before the amendment, the Act was under civil jurisdiction. After the amendment, it came to criminal jurisdiction. If one does not follow the section of this Chapter, remedy lies in the civil side. This chapter underwent various interpretations by various High Courts and the Supreme Court. Thus, this Chapter became the life blood of commerce and the Act itself. Still the real purpose is not served.

The drawer, drawee and the payee or holder in due course are the parties of a cheque. Normally, the victim is the payee or the holder in due course. This chapter intends to get back the cheque amount to the payee or the holder in due course. It never happens. S.138 reads-

"Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it, exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both".

Under this section, once an accused is found guilty, he shall be convicted and sentenced to undergo imprisonment for a term or impose fine. The payee or the holder in due course does not get the cheque amount. The case is instituted on a complaint by the payee or the holder in due course under S.142 of the same chapter. The Section further speaks the formalities to be followed. If he knows, he will not get the cheque amount, he will not file complaint and instead fall back to the civil side. The victim comes to the criminal court for speedy remedy and to get the amount and save money and time. The enlightened Parliament has never intended to make the treasury richer with private money. It is the undesired effect of this chapter. As this chapter comes under criminal jurisdiction, the Criminal Procedure Code applies. It is true S.357 of the Code provides compensation. It is only discretionary. In order to serve the intention of the Parliament, it requires a provision to get the cheque amount and expense to the payee or the holder in due course.

Rajendra Prasad (1997 (2) KLT 458) - A Bad Stock of Descent

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

The Division Bench decision Rajendra Prasad v. South Indian Bank (1997 (2) KLT 458) held following the decision in Sheo Narain Sah v. Mt. Deolochan Kuer (AIR 1948 Pat 208) that the right of redemption until confirmation of the sale is not a right under S.60 of the Transfer of Property Act but only a right under O.34 R.5 of the Central CPC. It further held that the under the amended Kerala O.34 only a composite decree is contemplated and once a sale takes place pursuant to the said decree the right to seek redemption ceases. The attention of the readers are also drawn to the Article written by Mr. M. R. Parameswaran in 1997 (2) KLT (Journal) 46. Mr. Parameswaran pleaded for amendment of the Kerala Order 34 to avoid unnecessary hardship to mortgagors. (I feel there are stronger arguments to show that O.34 of Kerala is beyond the rule making power of the High Court, whether it is under S.122 of CPC or under S.104 of the T.P. Act and so bad. For the time being I am not examining that proposition). With great respect the approach made in 1997 (2) KLT 458 as well as in the Article written by Mr. Parameswaran is not in the right direction.

2. I submit that the Division Bench decision is PER INCURIAM of binding precedent as well as SUB SILENTIO of relevant provisions of the Kerala Civil Procedure Code. To substantiate the finding that on passing of final decree the right of mortgagor comes to an end, the Division Bench followed AIR 1948 Pat. 208. This decision was directly over-ruled in Mhadagonda Ramgonda Patil & Ors. v. Shripal Balwant Rainade and Ors. (AIR 1988 SC 1200) the said fact was not noticed by the Division Bench. So, the entire finding based on AIR 1948 Pat 208 is PER INCURIAM.

3. The Division Bench held that there is only a composite decree under the Kerala Amendment to O.34 CPC and "the right to deposit and avert the sale is conferred on mortgagor - Judgment debtor under the Kerala Code only prior to the sale itself and not subsequent to the sale". It is submitted that this finding is unsupported by any provision of law. It is also submitted that the Division Bench committed grave error in holding that the right of redemption until confirmation of the sale is not a right under S. 60 of the Transfer of Property Act and is only a right conferred by Order 34 R.5 of the Central CPC.

4. It cannot be disputed that the right of a mortgagor to seek redemption in India is a statutory right conferred under S.60 of the Transfer of Property Act and the said right can be extinguished only in the manner provided under S.60 of the Transfer of Property Act. S.60 says that the sale right can be extinguished by act of parties or by decree of a Court. The Privy Council in Raghunath Singh & Ors. v. Mt. Hansraj Kunwar & Ors. (AIR 1934 P.C.205) held that the decree extinguishing the right of redemption of a mortgage should be strictly according to the form and the decree must specifically state that the right of the redemption shall be extinguished (Privy Council case was a suit for redemption in which the earlier final decree deviating from the form which debars redemption decreed that, in case of default in making payment the plaintiffs suit will stand dismissed. In such circumstances Privy Council held that the second suit for redemption is maintainable as the right of redemption has not been extinguished by the earlier decree as provided under S.60 of the T.P. Act).

5. A close study of O.34 of Central CPC and the Kerala Amendment will reveal that a decree passed in a suit for redemption and foreclosure are different from a decree for realisation of the mortgage amount by sale of the mortgage property. Under the Kerala Amendment a decree for foreclosure is passed under O.34 R.2 and a decree for redemption is passed under O.34 R.4, whereas a decree for sale is passed under O.34 R.3. It is true that the amended Kerala CPC does not contemplate passing of a preliminary decree and final decree in any of the suits under Rr.2, 3 and 4 of O.34. One will notice that in a foreclosure suit, O.34 R.2(ii) says that if payment is not made on or before the day fixed "the defendant and persons claiming through him shall be debarred from all rights to redeem the property". In the decree for redemption, under O.34 R.4 (iii) also the plaintiff is debarred from all rights to redeem the property. It is to be noticed that in a decree for sale under O.34 R.3 there is no debarring of the right of redemption for nonpayment of the decree debt within time and the decree under O.34 R.3 is without debarring the defendant mortgagor from his right to redeem i.e.; in a decree under O.34 R.2 the defendant/mortgagor is debarred by virtue of R.2(ii) from redeeming the property on expiry of the time fixed or failure to pay within the extended time. So also in a decree for redemption the plaintiff mortgagor is debarred by virtue of O.34 R.4 (ii) from redeeming on the failure of the payment within the stipulated time or extended time under O.34 R.5 of Kerala Amendment. This provision which debars redemption is specifically absent in O.34 R.3 and the decree form thereto in Appendix D No.6. The Division Bench is SUB SILENTIO regarding this distinction.

6. So, even if a composite decree under Kerala O.34 R.3 is passed there is no debarring the mortgagor of his right to redeem and the decree passed under O.34 R.3 cannot be said to be a decree which extinguishes the right of redemption. Thus logically and legally (he right of redemption is available to a mortgagor or any other person entitled to redeem in a decree passed under O.34 R.3 until the sale becomes absolute by an order of confirmation of the sale as the sale itself does not extinguish the residuary right of the mortgagor in the ownership of the property (Ref. O.21 R.89, 90 & 92). So, the right of redemption under a decree as per O.34 R.3 can be extinguished only on an order of confirmation of the sale whether under the Central CPC or under the amended Kerala CPC. O.34 R.5 of the Central Act is only a recognition of the substantive right in the procedural law. It is submitted that the Division Bench ruling in Rajendraprasad v. South Indian Bank is a bad stock of descent.