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

(By Advocate Sunny Mathew, High Court of Kerala)

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

NEW OFFENCES

SECTION - 69

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

SECTION - 95

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

SECTION- 111

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

SECTION -112

 

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

SECTION -113

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

SECTION - 152

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

SECTION - 226

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

SECTION -304

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

ADDITIONS

SECTION - 4

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

SECTION-70

 

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

SECTION -103

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

SECTION -106

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

SECTION -117

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

DELETIONS

SECTION -124-A

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

SECTION - 377 OF IPC

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

RETENTION  WHICH  OUGHT  TO  HAVE  BEEN  AVOIDED SECTION - 88

 

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

PRACTICAL DIFFICULTIES

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

CONCLUSION

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

Presumption of Conclusive Proof under the
Bharatiya Sakshya Adhiniyam, 2023

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

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

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

The ingredients of the said Section is mainly-

a.   There must have been a marriage;

b.   The said marriage is a legally valid marriage;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stamp Act v. Arbitration Act

*(By Saji Koduvath, Advocate, Kottayam)

Abstract

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

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

The Seven Judge Bench of the Supreme Court held-

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

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

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

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

Reference to Seven-Judge Bench

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

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

●    The Stamp Act is a fiscal statute only.

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

●    Hence such unstamped agreements are not void.

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

●     The Arbitration Act provided for minimum judicial interference.

●     Arbitration Act is a self-contained Code.

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

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

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

●    The Arbitration Act, a comprehensive legal Code.

      ●   It is a “special”statute.

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

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

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

The Supreme Court has overruled Earlier Decisions

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

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

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

These (earlier) decisions held –

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

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

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

FINDINGS OF THE APEX COURT

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

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

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

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

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

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

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

Referral Court Not to Impound Unstamped Instrument

The Apex Court held as under:

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

Conclusions of the Apex Court

The Apex Court held further as under:

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

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

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

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

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

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

End Notes

Arbitration and Conciliation Act, Sections 7, 8 and 16

7. Arbitration agreement.

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

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

●     An arbitration agreement shall be in writing.

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

      ●    (a) a document signed by the parties;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One Year Interruption or Obstruction will not Affect

Prescriptive Easement

(By Saji Koduvath, Advocate, Kottayam)

 

Abstract

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

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

               an obstruction for a period up to One Year

               will not be counted, or considered, as a bar

                for achieving the completion of 20 years’

                peaceable enjoyment without interruption

                (even if the obstruction is acquiesced,

                or suffered silently, by the dominant owner).

Because, Explanation II says –

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

               “… unless such obstruction is submitted to or acquiesced in

               for one year after the claimant has notice thereof and

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

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

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

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

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

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

               a period ending within two years next before

               the institution of the suit wherein

               the claim to which such period relates is contested.” 

It denotes two things:

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

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

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

Therefore, a suit can be filed –

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

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

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

‘Obstruction’ up to One Year being Not Counted

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

       acquiescence by the dominant owner,

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

        only after the said period “for One Year“.

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

               the period of ‘limitation’ will be 3 years.

But, it is obvious:

              If dominant owner has made an attempt to remove the obstruction

              (or interfered, in contrast to acquiescence)

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

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

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

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

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

               “… unless such obstruction is submitted to or acquiesced in

               for one year after the claimant has notice thereof and

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

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

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

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

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

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

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

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

Explanation II is an enabling provision

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

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

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

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

               will not be counted, or considered as a bar

               for achieving the completion of 20 years’

               peaceable enjoyment without interruption.

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

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

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

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

Reckoning of one year period

Explanation II makes it clear –

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

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

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

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

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

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

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

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

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

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

●  or, within three years of obstruction.

But, it is obvious:

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

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

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

It reads as under:

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

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

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

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

   use of water, way etc.

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

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

●     It simply refers to ‘cause of action’.

“Ending within two years”– Purport

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

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

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

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

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

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

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

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

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

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

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

See:

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

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

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

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

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

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

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

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

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

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

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

●    by actual cessation of the enjoyment,

       ●    by an obstruction,

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

See:

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

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

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

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

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

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

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

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

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

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

See:

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

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

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

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

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

End Notes

Section 15 Easement Act reads as under:

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

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

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

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

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

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

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

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

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

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

Illustrations

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

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

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

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

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

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

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

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

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

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

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

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

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

A penal provision is also incorporated, wherein ,   

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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