The End of an Era

(T.G. John, Advocate, Thrissur)

In July last, Thurgood Marshall, the only Afro-American ever to serve as a justice of the U.S. Supreme Court gave up the seat he had held since 1967. He was approaching his eighty third birthday.

Thurgood Marshall was the only member of the U.S. Supreme Court who knew how it felt to be called a 'nigger'. In the 1940's and 1950's when he roamed the Court rooms of the South as Chief Counsel for the Legal Defense Fund for the advancement of coloured people, Marshall suffered all the indignities of segregation. He once told a Judge in North Carolina he had eaten the same meal in the same restaurant where the Judge dined the night before, with one difference. "You had yours in the dining room" said Marshall", I had mine in the kitchen".

Very little about the law was abstract to Marshall He not only suffered its worst failure, the long reign of legal segregation, but he was also the architect of one of its greatest triumphs. He was the victorious attorney in Brown v. Board of Education, the 1954 landmark decision prohibiting racial segregation in public schools. As a judge, Marshall helped to change American law. As a civil right lawyer he changed America. In 1967, when Lyndon Johnson chose him as the first ‘black’ Supreme Court Justice, Marshall was a man resolved to continue the revolution he had helped to set in motion.

Thurgood Marshall was born in Baltimore, Maryland in 1908 when the city was segregated, as any in the deep South. Because the University of Maryland law barred blacks, Marshall gave up hope of attending there. He went instead to the all-black law school of Howard University which in the 1930's was being transformed into a training ground for lawyers who could challenge segregation in the courts. After graduation Marshall worked as a lawyer. One of his first major cases forced the integration of the same University of Maryland law school which he was unable to attend. As he travelled through the South, Marshall was routinely threatened. More than once he found himself facing a white racist with a gun. Undaunted, Marshall and his team of lawyers laid the legal groundwork" for the celebrated case Brown v. Board of Education. Marshall convinced the court that the 14th amendment of the American Constitution would not allow segregation. His problem was the Court's long-held view that separate but equal facilities were constitutional. But Marshall convinced the Court that there was no such thing as equality in a system of separation and that the very act of separation stigmatised individuals.

It was due to failing health that Thurgood Marshall retired at the age of 83. His last words from the Bench were a stinging rebuke to the court's conservative majority. His dissenting judgment in a 6 to 3 decision was like thunder: 'Power, not reason, is the new currency of this Court's decision making...... Cast aside today are those condemned to face society's ultimate penalty. Tomorrow's victims may be minorities, women or the indigent'.

Need for Structural Reforms in the Indian Judiciary

(S. James Vincent, Advocate, Ernakulam)

A free and independent Judiciary is a basic feature of a Republican Constitution, and is the cornerstone of Indian democracy. Well, that was the design and the intention of the framers of the Constitution; but in practice, the Judiciary in India has always been top-heavy and burdened with what is called "docket explosion" or "caseload crisis", with the result that it has not been able to deliver the goods upto the expectation. Delay in the disposal of cases is the bane of Indian Judiciary. Many Chief Justice of India, for example, Justice P.N. Bhagwati and Justice Venkataramiah, have confessed that the Indian Judiciary is on the virge of collapse. But at present it has crossed that stage and is virtually collapsing. Definitely, workload is one of the reasons for its ineffectiveness. But we need not ascribe to it the entire fault; we have to focus our attention on other aspects like the internal working of the court, its mechanics and techniques. We must also guage the strategems and the strategies of the working of this institution in order to understand its weakersports.

In India, ordinarily, a civil litigation is a matter for concerted action for a generation. A civil suit at the trial court and a first appeal in the District Court ordinarily take 3 to 5 years each for a finish, and a second appeal in the High Court, 4 to 6 years. Again, in between this tier-type litigation, it ordinarily takes 6 months to get a copy of the judgment and decree in the Subordinate courts, and 3 months in the High Court. That means, in total, about 15 years for an ordinary suit to find its finality at the High Court level. Thereafter, the real bugbear of the Plaintiff, called execution, stares in his face. That ordinarily takes 5 years. But there are likely to be a spate of other interlocutory proceedings, such as civil revision petitions, civil miscellaneous appeals, etc. that may add 3 to 5 years to the age of the litigation. That means, in a hotly contested case, to get the final result, ordinarily, it takes around 20 to 30 years at the level of the High Court, in respect of cases relating to recovery of real property and realisation of money. But if one is destined to prefer the luxury of a further appeal in the Supreme Court, 15 to 20 years have to be added again. That means, something like 50 years for a hotly contested litigation to reach finality. There may be exceptional cases where reliefs obtained earlier due to various reasons. This is the nature of litigation with respect to recovery of immovable property and realisation of money; but in respect of injunction suits relief may be available much earlier. In the case of money suits the period for securing a decree may be less compared to the property suits; but though the period for securing a decree may be less compared to the property suits, the period for securing the ultimate relief (the time necessary for execution) is much longer.

When we take a close look at these litigations, we can understand that the nature and substance of these cases vary vastly. From simple cases for recovery of Rs.100/- to Rs.100 -million suits filed by banks and other financial institutions; from dog-bite cases for wreaking vengeance on the opponent to multi-million rupee suits like the Golden Temple damage suit against the Union of India or the Bhopal litigation against Union Carbide. There are vexatious litigations too. There is no effective law or mechanics for checking unnecessary litigations. Again in several instances, litigation is launched to harass the opponent, or as a matter of prestige, and in such cases the suit is converted into a never-ending process, causing drain on public resources, and an Indian litigant has also the freedom and the fundamental right to take all these cases right up to the Supreme Court. This is also one of the main reasons for the weakening and the ineffective functioning of the Indian judicial system.

Therefore, in addition to the introduction of steps and techniques to reduce the arrears and the period of litigation, we have to think about structural reforms in the Judiciary for making it a more useful and effective institution. We must think why the Village Panchayats not be given the power to settle small disputes, say, upto the value of Rs.1,000/-, silly but prestige litigations like boundary disputes, disputes relating to trees on the boundary, disputes relating to easements, etc. Why not lawyers' chambers be utilised for pre-trial discovery and settlement, negotiations and compromises, and out-of-court settlements? At least, in small types of litigations, lawyers should act as umpires and settle cases amicably and immediately? Such cases should not be allowed to reach the courts and congest the system.

Moreover, there should be reforms in court procedures too. Unnecessary, avoidable and purely technical rules of procedure could be abrogated or at least simplified. Provisions regarding service of notice through process servers, substituted service, fresh notice in pauper proceedings after conversion as a suit and in appeals and revisions after condonation of delay, in review proceedings etc. could be avoided. Notice could be served at the first instance per Registered Post, and process servers need be sent only for affixture. Providing lower court records in time to Appellate and Revisional Courts is essential for quickening the pace of justice. Again preparing the prefix and suffix to the judgments at the time the judgment is ready for pronouncement and taking as much photocopies as are necessary for service on the litigants and delivering them at the time of pronouncement of the judgment, are also essential. Introducing reforms in the pleadings mainly for making it compulsory for litigants to state in their pleadings the names and addresses of their legal heirs and of the lawyer they intend to engage in case of appeal or revision in the District Court or in the High Court, as the case may be, would also cut short unnecessary procedure. If this is done, notice in appeals and revisions could be served on the counsel, making service of fresh notice on litigants unnecessary in appeals and revisions, saving much time and expense for the litigants.

Abatement and impleading of legal heirs after several years, causing delay in litigation, could be avoided. Avoiding unnecessary postings in court, is also necessary. That is to say, cases need be posted in open court only for taking evidence or for hearing or such other important matter, and the period for filing replies and written statements should be limited to 1 or 2 months, depending on whether a suit notice had been served earlier, without investing the discretion in the Court to adjourn cases for these purposes. All documents and list of witnesses should be produced along with the pleadings. Copies of all papers produced in court should be served on counsel for the opposing parties. Time limits should be strictly enforced.

Abrogating the provisions relating to execution in the Code of Civil Procedure and making execution itself a part of the trial procedure, is necessary. There need not be another execution petition, notice in execution and the consequential persecution of the plaintiff. The rules of pleading should be made strict and enforced strictly, so that prolixity of pleadings could be avoided. Rules of relevancy in the Evidence Act. too, should be strictly enforced, so that unnecessary oral and documentary evidence need not be let in and unnecessary and harassing cross-examination can be avoided which would save a lot of time of the Court. Again, oral arguments could be limited and written briefs could be made compulsory, together with appointment of Law Clerks in the District Courts, High Courts and in the Supreme Court. Issue of commissions should be strictly in turn from a panel which is to be renewed every half year and limiting the time for submission of the report to 2 or 3 weeks, or a month. Again, priority of cases has to be determined and time limits prescribed, which should be strictly enforced.

There is one more thing that requires immediate reform. That relates to the working mechanics, the techniques and the procedures, and the provisions for appeals and revisions in the High Courts and the Supreme Court. The High Court should be in the model of the British Supreme Court, which consists of the Divisional Courts and the Court of Appeal. The Divisional Court could be manned by single Judges. High Court Judges following their elevation could be assigned to the Divisional Court, and after acquiring 5 to 7 years of experience as a Divisional Judge, should be elevated to the Court of Appeal with better perks and conditions of service. The decisions of Divisional Courts shall not be reported and those Judgments shall not be cited as precedents, excepting on points on which there are no decisions of the Supreme Court or the Court of Appeal. The Judgments of Divisional Courts could be certified for reporting by the Council of Law Reporting for unique reasons. It is also necessary that the Judges should have a minimum tenure of around 25 years, that is to say, Judges should be appointed around the age of 40 and the age of retirement should be fixed at 70 for the Supreme Court and 65 for the High Courts. Persons with less than 10 years of potential service shall not be appointed, in view of the fact that it takes around 3 to 5 years for a Judge to get accustomed to his work and feel at home in the office, and almost all strong and sound judges have been those who have had comparatively long tenure of service. As far as appointment to the Supreme Court is concerned, Judges should be in their early or middle 50s, with at least 10 years service left, which would help maintain uniformity, continuity and predictability of the law declared by the Supreme Court.

A proper mechanism for the selection and appointment of the Judges to the High Courts and the Supreme Courts, and for looking into the complaints against Judges, is also very important. In respect of this aspect, there is now what is called the Constitution (Sixty-seventh) Amendment Act 1990 which provides for a fairly satisfactory mechanism for looking into the complaints against Judges. However, for an effective and proper selection and appointment of Judges, there is no finalized effective programme or proposal. The Law Commission in its 120th Report has recommended the setting up of a National Judicial Commission with powers of selection of the Judges. The institution of a National Judicial Service is also contemplated. The Report of the Law Commission recommends that appointment of Judges to the High Courts shall be in the ratio of 40:40:20 from the Indian Judicial Service, the Subordinate Judicial Service and the Bar. This is far from being satisfactory. There is no reason for giving a higher preference to the candidates from the Subordinate Judiciary overlooking the legitimate claim of the Bar, whereas a greater preference could be given to the Indian Judicial Service. Therefore, it is felt that the quota should be fixed as 50:20:30. It could even be 1:1:1, that is to say, equal number from the three segments, which would maintain a system of healthy rivalry and competence.

As far as the Supreme Court is concerned, there has to be substantial reforms. There shall be 31 Judges in the Supreme Court which should adopt a two-tier sitting pattern. Eleven senior Judges shall sit en bloc to hear constitutional cases alone and this constitutional tier should function like the US Supreme Court. In addition to these 11 Judges, there could be 4oth'er ex officio members to help and guide the Judges in resolving disputes relating to Policy considerations. These ex officio members shall be co-opted by the Chief Justice of India. There shall not be individual judgments, but only one majority judgment and a minority judgment, so that the voice of the court shall be powerful and discernible. Admission to the Constitutional Court should be very strict, as in the American Supreme Court. The remaining 20 judges should sit in four Divisions of 5 Judges each to deal with civil, criminal, taxation, and labour matters. The 5 Judges of each division shall sit en bloc and there shall be only a majority and a minority judgment and no individual judgments. Admissions in these divisions should also be radically strict.

Last, some thing about the Bar too. The Bar being part of the Judiciary, should reform itself. Formation of big partnerships in the nature of big US law firms should be thought of Again, there should be facilities for acquisition of adequate professional competence and training, introducing pre-trial settlements, negotiations and out-of-court compromises. Law offices should be modernized. Introduction of computers and electronic devices and technological inputs, etc. would be very essential in order to cope up with the modern technological developments in other fields.

If the Bench and the Bar are reformed and refined and made efficient, the litigants will get the result quickly and effectively within one year in any court so that there will be finality to a case within 2 to 3 years, as in the case of Great Britain or the United States. Urgent legislation would be required in this regard - constitutional, statutory and regulatory. And the earlier the better.

An Interpretation Gone Astray or Awry?--

A Critique of Kunhi kelu v. Abdul Samad : 1990 (2) KLT 457

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

1) Interpretation of statutes is no less an art than a science calling for the exercise of sharp intellect, interpretative skill, judicial "legerdemain" and legal acumen. Not every Judge or every Bench comes out with success, much less flying colours, in this tantalising, yet tenter-hook-holding, exercise. In an era of evolving an expanding sociological jurisprudence, where law is considered not an academic abstraction for the ivory-tower academics, but an effective and energising instrument of social engineering and innovative social action, it affords-and, indeed, should afford-understandable temptation and adequate opportunity for judicial activism. But, even a Judge or a Bench familiar for its incisive analysis and inquisitorial insight may trip on occasions. The latest instance on point is Kunhi Kelu v. Abdul Samad, a judgment of Justices K. Sukumaran and Rajasckharan reported in 1990 (2) KLT 457.

2) Placing its reasoning on the pegs of S3 of the Kerala High Court Act, S.22 of the Kerala Small Cause Courts Act, S.115of the Code of Civil Procedure, and S. 103 of the Kerala Land Reforms Act, Their Lordships have held that a single Judge is not competent to deal with revisions under S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 and that the revisions have to be heard by a Division Bench of two Judges. But, after making these observations the Judges express the hope that the Legislature may step in with a specific provision by way of amendment of the statute-a clear enough indication that they were not sure of their steps and sanguine about the sustainability of their pronouncement! Does it not reflect or reveal the fact that the Bench headed by an intelligent and innovative senior Judge felt unsure of its ground and steps? Then, why supply the causus omissu, when the Bench itself rightly observed, "It is for the legislature to have the final say".

3) The Bench is correct in referring to the provision of S.4(7) of the Kerala High Court Act, but not right in its interpretation based thereon. But, it should not, with respect, have contented itself with placing reliance on Ouseph Chacko's case (1966 KLT 1060), a case decided by Justice Krishnamoorthy Iyer, whose competence in, and command over, civil law is, of course, nonpareil! It should have recalled and recognised the fact that it was not the Legislature's fault that landlords and tenants were bandied about on account of the shifting sands of judicial dicta concerning the interpretation, scope and applicability of S.20 of the Kerala Buildings (Lease and Rent Control) Act, 1965 and its finality. In the normal course, the Legislature originally provided for the revisional jurisdiction to be exercised by the District Court. It was the Kerala High Court which evolved and invented the remedy of a further revision under S.115 of the C.P.C. to the High Court, jurisdiction for which used to be exercised by a Single Judge of the Kerala High Court. The Supreme Court, after some vacillation, gave a quietus, to the controversy by laying down that no second revision would lie.

4) The court's abrupt and seemingly profound treatment is not rendered understandable in the context of the disastrous consequences it may leave on the fate and future of the litigants; perhaps, it can boast of an egalitarian impact (not ethos) in that both landlords and tenants are at the receiving end. This is an enormous, and, none the less, erroneous, interpretation undertaken without analysis or justification.

5) As neither the language of the statute nor the legislative history supports its holding, the Division Bench is compelled to rely on an earlier decision of the Court without an attempt at an analytical scrutiny of the said decision and perhaps on its own perception of the policy. Its conclusion that the language of the statute is clear, admitting of no advertance to other settled canons of interpretation of statutes, is, to put it mildly, not soundly based. The court's error in statutory construction, however, is less objectionable than the attitude of imperviousness to the injurious impact of the decision it displays in its decision. The court's insensitivity to the human dimensions of this decision is particularly obvious in its cursory discussion of the statutory provisions and its avoidance of a meaningful scrutiny of the statute.

6) Will it not sound anomalous, that while a second revision was entertained and adjudicated upon by a Single Bench of the High Court, the first revision is enjoined to be heard by a Division Bench. Neither textual tenets nor contextual compulsions warrantor justify such an interpretation and dictum, particularity when one bears in mind the checquered history of S.20 of Act2ofl965 caused by the rather harsh and continuous beatings it had to bear from judicial hands. That lawyers and litigants have suffered a lot on account of such, what I may respectfully and euphemistically, call "judicial ventriloquism" is a different matter and a poor consolation. (The bitter memories of judicial inconsistency in regard to the Kerala Land Reforms Act and its disastrous effect on the fate and fortunes of litigants are still fresh in our minds). When one views these facts in their proper perspective, one can see that the best course would have been to let the status quo continue and point out to the Legislature the lacunae and lapses, if any, in the legislation and highlight the importance of, and the need for, a legislative amendment byway of clarification in S. 20 of the B.R.C. Act or S. 4 of the High Court Act, that revisions under the section should be heard by a single judge.

7) When the consequences of such an interpretation are so serious, so far-reaching and pervading, so glaring a departure from the structure and spirit of the statutory provision, when the effect is to fetter the rights of the litigant, and of the courts, in the exercise of powers heretofore conceded to them, of the most fundamental character, in the absence of language which expresses in no uncertain terms such a purpose too clearly to admit of doubt, with respect, I say that this "radical" interpretation has to be reversed. This is particularly so, when day in and day out, we cry hoarse over the need for a simplification of the procedural law and a Door-delivery Justice System.!

8) Was it not better for the court to follow the well-entrenched tradition than fall a prey to the temptation of judicial legislation is a pertenent question that persters any discerming lawyer. The Division Bench's expectations and hopes about a legislative intervention appears more durable than its interpretation of the statutory provisions.

9) Courts acting under the guise of judicial power cannot nullify, defeat or distort the reasonably clear meaning of any part of a statue in order to give expression to some theory of its own about the broad or basic scheme of statutes. The power of judicial interpretation, even if it includes what may be termed 'interstitial law-making' cannot, extend to direct conflict with the express provisions of the statutes or to ruling them out of existence, as the express provision cannot be curtailed or nullified by an imaginative theory of legislative intention.

10) In this short article, my attempt is not to articulate the constraints that must operate upon the court when it resorts to the interpretation of a statute, but to highlight the tenuous moorings of the decision to the text of the statute and the disastrous and damaging impact, it may have on the domain of rent control cases. The decision sweeps unnecessarily broadly, and thereby invades the area of settled procedures.

11) In interpretation in relation to statute law, be they penal or beneficial, restrictive or enlarging, four points have to be discerned and considered: (a) What was the general law before the enactment? (b) What was the mischief and defect for which the general law did not provide? (c) What remedy the legislature has resolved and appointed to cure the defect and prevent the mischief? and (d) the true reason of the remedy. Then the office of all the judges is always to give a construction that shall suppress the mischief and advance the remedy, not to promote the continuance of the mischief or create added difficulties pro privato commodo, but to add force and life to the cure and the remedy, according to the true intent of the makers of the Act, on pro bono publico principles. These principles, mutatis mutandis apply to the interpretation under discussion.

12) Ido concede that the limit beyond which the power of judicial interference may not be pressed is neither definite nor unalterable, but may be made to move, within limits not well defined, with changing need and circumstance, and that any attempt to fix a rigid boundary would be unwise as well as futile.

13) The revisional power in question, though, perhaps, is a sustantive power, is simply a necessary noncomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law.

14) It is necessary to lay to rest tersely the somewhat decayed corpse of the Ouseph Chacko approach to the High Court Act, giving a quietus to the note-so-nagging, but, perhaps, lingering, doubt on the question.

15) The decision of the Division Bench makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Hon'ble Court. Its rejection of a perfectly plausible reading of the statute flies in the face of the principle of harmonious construction and the effectuation of the intention behind a socio-economic piece of legislation. The decision today appears symptomatic of the court's own insecurity over its handiwork in regard to the revisional jurisdiction of the High Court in rent control cases.

16) The need for judicial restraint is recognised by our High Court. Justice Sukumaran in the Full Bench decision in P. Asokan v. Western India Plywoods Ltd. (AIR 1987 Ker. 103) quite succinctly reflected this principle when his Lordship observed, "Even the courts without much of enthusiastic exuberance of judicial activism can bring about results by a meaningful interpretation".

17) Lord Rcid's observations in Attorney General for Northern Ireland v. Gallagher (1963 A.C. 349 at 366) are quite apposite to the current context. Said the learned Law Lord, "We can have in mind the circumstances when the Act was passed and the mischief which then existed so far as these are common knowledge. We can only use these matters as an aid to the construction of the words which Parliament has used. We cannot encroach on its legislative function by reading in some limitation which, we may think, was probably intended, but which cannot be inferred from the words of the Act". (emphasis supplied)

18) I may conclude recalling the observations of the United States Supreme Court, which, though rendered in a different context, are quite appropriate to the present case:-

"The responsibility, therefore, rests upon legislators, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government, if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annual statutes that had received the sanction of the people's representatives" (Atkin v. Kansas 191 U.S. 207,223).

A Note on the Decision of Smt. Subaida Sulaiman v. Hamza

1991 (2) KLT 158

(M.P.R. Nair, Bar-at-Law, Ernakulam)

I submit with great respect that the Bench decision reported in 1991 (2) KLT 158 Smt. Subaida Sulaiman v. Hamza and others over-ruling the decision of a single judge in 1979, reported in (1985) KUC 270 (Joseph's case) did not lay down the correct law.

This decision, rendered in interpretation of Ss.52 to 54 of the Kerala Revenue Recovery Act, 1963 (Act 15 of 1963), is an instance of judicial legislation for-bidden under our Constitution. It is a rule in the construction of statutes that the ordinary meaning and grammatical sense of the words used should be adhered to. To travel outside the framework of the statute and supply words and intent which are absent in the statute cannot be regarded as part of the judicial functions. The words of Lord Coke in Heydon's case seem to be quite appropriate in this context: "It is to be borne in mind that office of the judges is not to legislate, but to disclose the express intention of the legislature, even if that intention appears to the Court injudicious". The words in a statute have to be given their ordinary signification and "if the words of a statute are in themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature" (See AIR 1961 SC 674).

Now let us analyse the facts of the case and the soundness of the decision. An application had been made under S.53 to set aside the sale of the landed property offered as security. This application was dismissed and the sale was confirmed. In the Revision Application filed before the Board of Revenue against the dismissal of the application under S.53, the sale was set aside on the ground that the price fetched at the sale was inadequate and insufficient. The assignee of the auction purchaser moved an Original Petition under Art.226 of the Constitution which was allowed by a learned single judge holding that the sale was not liable to be set aside merely on account of inadequacy of the price fetched at the sale. In appeal, the Division Beach confirmed the decision of the learned single judge.

The relevant sections of the 1963 Act provide, as follows:

"S.53: Application to set aside sale on ground of material irregularity, Mistake, etc.- (1) At any time 'within thirty days from the date of the sale of immovable property, application may be made to the Collector to set aside the sale on the ground of some material irregularity or mistake or fraud in publishing or conducting it; but, except as otherwise hereinafter provided, no sale shall be set aside on the ground of any such irregularity or mistake unless the applicant proves to the satisfaction of the Collector that he has sustained injury by reason thereof.

(2) If the application is allowed, the Collector shall set aside the sale and may direct a fresh sale.

S.54:- Order confirming or setting aside sale.-- On the expiration of thirty days from the date of the sale, if no application to have the sale set aside is made under S. 52 or S.53 or if any such application has been made and rejected, the Collector shall make an order confirming the sale:

Provided that if the Collector has reason to think that the sale ought to be set aside notwithstanding that no such application has been made or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale".

The Division Bench held that the Collector acting under S.53 or the proviso to S.54 can set aside the sale only if he has reasons to think that the sale ought to be set aside for the reasons mentioned in S.53. The court held: "De hors the reasons mentioned in S.53, the Collector has no jurisdiction under S.53 or under the proviso to S.54". In this view, the decision in Joseph's case was overruled.

What the Court had said has rendered the proviso to S.54 nugatory. To hold that the contours of legislative intent in enacting the proviso to S.54, which empowers a Collector to act on grounds other than those alleged in any application which has been made and rejected, after recording his reasons in writing have been identified by the grounds mentioned in S.53, is to re-write S.54 altogether. The fact that the Collector is free to act even on grounds other than those urged in an application, but is enjoined to give his reasons in writing, disproves the theory projected by the Division Bench that the grounds for setting aside the sale under the proviso to S.54 should be the same as those mentioned in S.53. Should the Collector acting under the proviso to S.54 give additional reasons for setting aside the sale if the grounds are those contained in S.53?

I submit that the plain and unambiguous language in the proviso to S.54 of the Act has been given a meaning totally different from the meaning intended by the legislature by the express words employed in the statute. Inadequacy of price would have been a ground under the proviso to S.54, but not under S.53. The decision, in my submission, needs reconsideration.

The Dawning Year

(Siby Mathew, Advocate, Ernakulam)

"Each dawning year beholds us blithely rise

With new-fledged hopes to face the future bent,

Each dying year finds us without the prize"

The advent of every New Year is hailed all over the World with feelings of joy coupled with a prayerful wish that the incoming year would bring happiness and prosperity. No tear is, however, shed over the expiring year. "The year is going, let him go" said Tennyson. And as if to give a parting kick, the poet sang. "Ring out the old, ring in the New". In the eternal calendar, one more year passes yielding place to the New Year with cherished hopes and prospects.

It is wishful thinking that one should be like the ancient Roman God Janus which is credited with two heads one looking back into the old year and one forward into the new commanding both hind sight as well as foresight, so that warned about the shoals and rocks of the immediate future one might use the experience and wisdom of the immediate past in meeting them.

Times have now changed, the old social order, based on wealth and privileges has crumbled, yielding place to socialism and in some instances to communism and to a further extent communalism. Law as well as lawyers have to respond to this change. Adaptation is called for not as a shrewd response but as reflecting the growth of an intelligent realisation and real conviction that we cannot fashion a closing 20th century service from a 19th century mould. "The first thing we do, let's kill all the lawyers", said Dick to Jack Cade (Shakesphere, Henry VI, Part II, Act, IV, Scene 2, line 86). Perhaps one day, we shall receive a more kindly epitaph than this.

The bane of our country at present is that politics has crept into every sphere of life. Many live and thrive on politics. One may as well exclaim.

"O that there might in India be A duty on hypocrasy, A tax on humbug, an excise on solemn plausibilities"

The expiring year has been, by and large a year of little achievement and general disenchantment. For untold mill ions 'equality, liberty and fraternity' means fraternity of street corner, liberty to starve and equality in death. Men and dogs still fight over morsels of food in many big cities. There are countries where people go hungry, and death due to starvation and chronic malnutrition is accepted as a natural phenomenon.

The need of the hour is to dispense light, not to generate heat in reassessing the nation's moral values, its political standards and economic opportunities for ending the current stagnistion and psychic downturn.

The problems of the lawyers and especially the junior section of the Bar are many. The number of law graduates passing out of the law colleges every year is great. Therefore the field of activity, has to be expanded and extended to branches like taxation and industrial law and new spheres where law graduates could play a positive role have to be found out. To redress the manifold grievances of the lawyers, the only solution is a well-organised united Bar. Unfortunately, Lawyers, today are divided on every issue inside and outside the Court. The only sound way to meet the challenge is for the profession to unite and organise.

We cannot foresee what is in the womb of time and what may happen in the next twelve months. Let us hope the TIMES will be useful and prosperous for all of us.