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.

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.

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.

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.

KLT Exclusive Interview:

Empowering Perspectives : Insights From Three Women Senior Advocates of

the High Court of Kerala

(Interviewed by Adv. Ashly Harshad, Assistant Editor, KLT)

In 1916 when Ms. Regina Guha, a valid law degree holder was denied enrolment as a legal practitioner by the Full Court of Calcutta High Court on account of the then prevalent law which disqualified women from such enrolment it was the beginning of a quest for gender equality in the legal profession. In 1922 when Allahabad High Court allowed Ms.Cornelia Sorabji to be enrolled as a lawyer she became the first woman barrister of our country. Thereafter the Government amended the law favouring enrolment of women. Yet, a century later, discussions on women reservation in judiciary and senior advocate positions persist. How far have we come? Let’s hear from our Senior Women Advocates.

The interview with three women Senior Advocates of the High Court of Kerala, Senior Adv.Sumathi Dandapani, Senior Adv.V.P.Seemandini and Senior Adv.Dhanya P.Ashokan, highlights their remarkable journeys, challenges faced as women in the legal profession, and their contributions towards social justice. Their advocacy for change echoes resilience, determination, and a commitment to advancing justice.

 

There are no Shortcuts to Success; Litigation Demands Unwavering Commitment, Dedication and Perseverance

Senior Advocate Sumathi Dandapani, one of the two pioneer woman lawyers who was conferred senior designation expresses a sense of fulfilment while reflecting on her journey as a successful lawyer. She asserts that there is a supportive environment fostered by Judges and peers in the High Court of Kerala.

Back in 2007 when there were no woman senior advocates, you were one of the first two women senior advocates named in the history of the Kerala High Court. Your journey must be filled with unique experiences. Can you share some insights into the challenges you faced and the milestones you achieved on your path to becoming a Senior Advocate.

I believe my journey to becoming one of the first two designated women senior advocates in the history of the Kerala High Court has been a testament to resilience and determination. A significant milestone was establishing myself in the fiercely male-dominated realm of motor vehicles cases. Despite initial scepticism and attempts to undermine my presence, my familial background in the industry provided a crucial foothold, bringing in premium clients from the outset. I was happy to be a well-earning lawyer since day 1 of my litigation career. However, sustaining this success demanded relentless effort, including frequent travel across various districts from Kasargod to Trivandrum.

I would also recall the privilege of being Standing Counsel to various institutions like the Railway for about 3 and half decades, KLD Board for 2 and half decades, RBI for the past one decade, ISSHER, Trivandrum for the past decade and as Tamil Nadu State Council in Kerala for 5 years, as significant milestones in my journey.

During my tenure as a junior advocate, I had the privilege of practicing under the tutelage of esteemed legal minds, Justice Mr. P.C. Balakrishnan and Justice Mr. V.P. Mohan Kumar, both distinguished advocates at that time. A particular incident stands out vividly in my memory, emphasizing the importance of discipline and punctuality in this profession. One day, heavy rains and thunderstorms delayed my arrival at the office by a mere ten minutes. However, the consequence of this tardiness proved to be a valuable lesson in professionalism. Upon my arrival, Mohan Kumar handed a sternly worded two-page reprimand penned by P.C.B. and Mohan Kumar instructed me to read it before meeting my senior. While the experience may have felt harsh at the time, in hindsight, I recognize the invaluable role that such strictness and discipline played in shaping my professional values. It was through these lessons in accountability and punctuality that I learned the importance of diligence and commitment, so I would say that even challenges are only learning lessons in disguise.

I have also encountered various challenges reflective of systemic biases. There was an instance when I was repeatedly denied court orders even in meritorious cases which could be attributed to the fact that I did not meet the District Judge in his chamber upon his appointment as Judge. Eventually the matter got resolved.

When I contested for the presidency of the Kerala High Court Advocates’ Association, the prevalent notion questioned a woman’s candidacy, highlighting entrenched gender stereotypes in leadership roles within the legal fraternity. I am glad to say that the scenario is very different now and the change has definitely been for the better.

Being designated as a Senior Advocate in 2007, you have undoubtedly witnessed significant changes within the legal profession. How do you perceive the evolution of gender representation and equality within the Kerala High Court since your designation?

Since my designation as a Senior Advocate in 2007, I’ve witnessed notable shifts in gender dynamics within the Kerala High Court. The legal landscape has witnessed a commendable influx of women lawyers, marking a departure from previous under representation. The past three years alone have seen thousands of women enrolling in litigation, indicative of changing perceptions and opportunities within the legal sphere.

Crucially, this transformation is bolstered by the tremendous support cultivated by Judges in the Kerala High Court. Their encouragement empowers women lawyers to engage robustly with legal matters, fostering a conducive environment for professional growth and equitable representation.

Your accomplishment as a Senior Advocate sets a precedent for aspiring women lawyers. What advice or guidance would you offer to young women lawyers aspiring to reach similar heights in their legal careers?

Firstly, there are no shortcuts to success; litigation demands unwavering commitment, dedication, and perseverance. My personal routine, often extending pastmidnight, could be taken as an indication to the rigorous nature of legal practice. In my case, the unwavering support of my late husband was also instrumental in navigating the intricate balance between personal and professional spheres so I would also recommend that lady lawyers who want to sustain the long haul be cautious of whom they choose as life partners. Partners who would understand the struggles and demands of litigation would be greatly helpful in shaping your career.

Reflecting on your experience, what do you consider as the most fulfilling aspect of being a Senior Advocate in the Kerala High Court? How do you believe your role contributes to the broader legal landscape and society as a whole?

Reflecting on my journey, the designation as a Senior Counsel remains a humbling acknowledgment of my dedication and expertise, particularly given its discretionary nature at the time I was designated. Back then, applications were not invited and a lawyer would be designated as Senior Counsel only if the Judges made a choice to appoint an advocate as one. However, beyond personal accolades, the true fulfilment stems from the enduring trust bestowed upon me by clients, reaffirming the impact of my contributions to the legal fraternity.

Beyond individual achievements, my role extends to broader societal contributions through engagement in pro-bono cases. These endeavours are not merely legal pursuits but integral components of a collective quest for justice.

One of the most rewarding aspects of my career has also been witnessing the flourishing trajectories of my junior colleagues. Notably, two of my former juniors have ascended to positions as Judges in lower courts, while this year, three advocates who were once part of Dandapani Associates have been designated as Senior Counsels in the High Court. This brings the total count of senior counsels from Dandapani Associates in the Kerala High Court to eight. It gives me immense satisfaction to observe the progression of advocates who started their journey under the guidance of Dandapani Associates, now assuming esteemed roles as Judges and senior counsels.

As a trailblazer in the legal profession, what initiatives or changes would you advocate for to further promote gender diversity and inclusivity within the Kerala High Court and the legal community at large?

As explained above, there is already a remarkable evolution in gender representation and inclusivity within the Kerala High Court. Unlike the past, where women lawyers were a rarity, today, there’s a noticeable surge in women entering the legal profession. In the last three years alone, thousands of women have enrolled in litigation, marking a significant departure from previous norms.

This positive change is further reinforced by the supportive environment fostered by Judges and peers in the Kerala High Court. Their encouragement and recognition of the capabilities of women lawyers have played a pivotal role in creating opportunities for them to thrive. As a result, there’s already a palpable sense of empowerment among women lawyers and I would only hope that this trend grows in strength with time.

Over the years, I’ve also actively sought to include more women lawyers in my office. I strongly advocate for prestigious offices to adopt a similar approach, ensuring a welcoming environment for women lawyers and providing them with equitable opportunities in litigation.

I would like to mention that now since there are several avenues to choose from within the legal profession, women lawyers are able to make empowered choices in terms of which field of law suits them best given their personal preferences and values. From Zia Mody, to Indira Jaising to Karuna Nundy, we have women in top positions, whether it be the corporate legal world or litigation, who are instrumental in positively impacting the collective legal landscape.

Throughout your career, you’ve likely encountered various legal cases and challenges. Can you share a particularly memorable case or achievement that has had a significant impact on you personally and professionally?

Throughout my career, I’ve encountered a myriad of legal cases and challenges, each contributing to my growth and evolution as a lawyer. It’s difficult to single out one particular case as the most impactful, as every case holds equal significance for me.

Every case, whether exhilarating or daunting, has left an indelible mark on my professional journey. Beyond the immediate emotions they evoke, each case has been a profound learning experience, enriching my knowledge and skills in diverse aspects of the law. Consequently, I cherish every case I’ve handled, as each has contributed uniquely to my repository of legal expertise and shaped me into the lawyer I am today.

Looking ahead, what aspirations or goals do you have for yourself and for the advancement of women in the legal profession within Kerala and beyond?

Reflecting on my journey, I find myself in a position where I can proudly and humbly say that I have achieved much of what I set out to accomplish. I am filled with a sense of fulfillment knowing that I have navigated through the complexities of the legal landscape and emerged successful. Each trial, each victory, and even each setback has contributed to my growth and shaped me into the advocate I am today.

Now, my aspirations are simple. I aim to continue serving the legal profession in the best way possible, leveraging my experience and expertise to uphold the principles of justice. Whether it be through representing clients diligently or mentoring aspiring lawyers, my commitment remains unwavering. In essence, while my journey may have had its ups and downs, I am content in knowing that I have already achieved much of what I once hoped for. Moving forward, my focus is on maintaining the highest standards of professionalism and integrity, ensuring that I continue to make a meaningful impact in the legal arena.

 

Our Profession is the only Profession which can help People of all Walks of Life

Senior Advocate V.P.Seemandini, one of the two pioneer woman lawyers who was conferred Senior Advocate Designation by the High Court of Kerala shares her wealth of experience.

As a designated Senior Advocate with extensive experience in the legal field, could you share some insights into the challenge you’ve encountered as a woman lawyer throughout your career journey? How have these challenges shaped your approach to advocating for gender equality within the legal profession?

I started my practice from November 1976 onwards. During my initial period of practice, my experience, was that the men lawyers are not so happy with the women lawyers, coming up in the legal profession. I also noticed that, both men and women clients are not confident in entrusting their brief to women lawyers, probably because, during those periods, people were entertaining a strong impression that, only men lawyers are capable of handling cases (Civil, Criminal, Service and Constitutional matters).

As time passed by, I must admit that as a lady advocate, I never encountered any challenges from lawyers (juniors or seniors) and from my clients (both men and women). Thus, there is no gender inequality within the legal profession. Fortunately for me, from the very beginning of my career, I got maximum encouragement and opportunities for arguing cases.

You’ve expressed concerns about the disparity in the number of senior women lawyers in the Kerala High Court. What, in your view, are some of the underlying reasons behind the reluctance of women lawyers to apply for senior positions, despite their competence and eligibility?

Majority of women lawyers (including me) are against the newly introduced interview for designating senior lawyers. Majority women lawyers will have unavoidable family responsibilities, connected with their home, children etc., preventing them from taking up heavy responsibilities of senior lawyer. In very few cases, their husbands may not be interested, in their life partner taking up such heavy professional responsibilities, along with their family responsibilities of bringing up their children.

Given your role as the President (Southern Region) of the International Federation of Women Lawyers, what initiatives or strategies do you to propose to encourage and empower more women lawyers to pursue senior positions within the legal fraternity?

As and when possible, I, along with the founder President of AIFWL (All India Federation of Women Lawyers) used to meet women lawyers with high calibre and having active practice in various High Courts in India.

We made it a point, to attend without fail, all the biennial conferences that were/are being hosted in all States in India, to encourage all women lawyers in India, to come up in their profession.

Effective steps were/are being taken by us, by requesting Hon’ble Chief Justice of India and Central Law Minister, to empanel more and more women lawyers (having regular practice in the High Courts and Supreme Court) as Central Government Pleaders and as Standing Counsel for Central Government as well as Central Government owned institutions/establishments.

As a matter of fact, we have passed several resolutions and sent those resolutions to the Bar Council of India as well as the State Bar Council to appoint more women lawyers in the Managing Committee of Bar Council of India and State Bar Councils.

Reflecting on your designation as a Senior Advocate, can you shed light on the importance of proactive measures such as suo motu designation of senior women lawyers by the High Court, as observed in the recent ground-breaking decision by the Supreme Court?

I fully agree with the views expressed by the Hon’ble Supreme Court, for designating more women lawyers in the various High Courts in India, mainly for the reason that, as a matter of common practice, and human physiology,the clients are always interested in entrusting cases involving constitutional issues; service matters etc., only to men lawyers (both senior and junior). Women lawyers are being preferred only for conducting matrimonial cases.

Considering the recent amendments to the High Court of Kerala (Designation of Senior Advocates) Rules, how do you perceive the effectiveness of the points-based system for assessing candidates and the criteria for designation as a Senior Advocate, particularly in fostering gender diversity and inclusivity?

Frankly speaking, I am very much for following the previous practice of conferring Senior Advocate position, based on the multifarious nature of cases (Civil, Criminal, Constitutional, Service matters etc.) conducted by the concerned lawyers. According to me, only by following such procedure, more women lawyers, can be conferred senior status, depending upon their area of practice in various subjects.

Throughout your illustrious career, what achievements or contributions are you most proud of in promoting the rights and representation of women within the legal profession and the broader society?

To be honest with you, I should say that the most welcoming and attractive aspect of my career, as a lady lawyer, is the chances which I got to serve the society as a whole, more particularly, women and children who are suffering with so many legal issues concerning their family, property etc.

Throughout my career as a lawyer, in my capacity as office bearer/member of KFWL, All India Federation of Women Lawyers, as also Regional Vice-President of International Federation of Women Lawyers, I had the advantage of conducting legal literacy classes to the downtrodden mass situated in remote villages.

Victim Right Centre (VRC) introduced as part of legal literacy programme by Hon’ble Mr.Justice Muhamed Mustaque of the Kerala High Court has given solace to several women victims suffering in the various Jails in Kerala State.

As a lawyer, I had been associated with few charitable organization; giving protection to women and children functioning in Kerala State. Sree Narayana Sevika Samajam is one such organization which is a rescue home for destitute women and children, registered under Charitable Societies Act, including an Old Age Home for old and infirm women, recognized by the Social Welfare Department of Kerala State. At present, we are giving shelters to 238 women and children irrespective of their caste or creed.

I am the committee member of a women’s organization namely “Cultural Academy for Peace”, (a Government run institution) which is conducting the following welfare centers: 1. Shanthibhavan (women rehabilitation and care and support center). 2. Sakhi counseling center. 3. Community College for dropout women and girls. 4. Village integrated development program in various villages for women 5. Community mediation center.

According to me, our profession is the only profession which can help people of all walks of life.

Looking ahead, what are your aspirations for the future of women lawyers in Kerala, and how do you envision leveraging your position and influence to advance these aspirations?

I am of the strong view that, future of women lawyers in Kerala are very prosperous and to my knowledge, majority of women lawyers are hard working and socially committed and interested in spending their time and energy for the upliftment of illiterate women, toiling hard day and night, in the remote villages in various State. To support the advancement of woman lawyers I plan to promote them, by actively involving them in all activities of KFWL, AIFWL and FIDA (International Federation of Women Lawyers). Additionally, I aim to involve them in taking legal literacy classes in the remote village in the State and by taking classes on recent decisions of Supreme Court and High Court on issues involving the protection of women and children. Furthermore, encourage them to attend regularly and continue legal education classes, conducted by eminent personalities practicing in various Courts in India, on topics which are relevant for all practicing lawyers.

 

Do not let your Gender Define the Work you do

In conversation with the newly designated Senior Advocate Dhanya P. Ashokan

As the single woman lawyer designated as a Senior Advocate after a period of over 15 years, could you kindly share some of the challenges specific to your journey as a woman lawyer in attaining this prestigious position? Additionally, how did you navigate and overcome these challenges to achieve this milestone?

A woman is often seen as a wife, mother, daughter, sister, but rarely as an individual who has a personality of her own. The path I traversed to become a Senior Advocate wasn’t a bed of roses. Patriarchy from time immemorial has imposed gender roles, which makes it seem that it is a mother’s “duty” to be attentive to her children, take care of their personal, curricular and co-curricular, and social needs. At the same time a father who does the same things is applauded for doing a commendable job, while the society fails to realise parenting is an equal job. At this juncture, I would like to say, having an equal parent as a husband was my biggest support. The initial years of my practice was having to handle 2 full time jobs—that of a mother of a new-born and a small child, that of a junior lawyer. The uphill battle of having to attend to my kids’ daily needs, running to their schools and also managing casefiles and research and the heavy law books was a tough row to hoe. But I can confidently say, I had strong pillars supporting me through my struggle. My family and my faith. I believe, regardless of how difficult circumstances are, it is ultimately the curiosity in you and the desire to attain more knowledge that is most important for a lawyer. The very same curiosity and desire, and the strong belief that the path of my career is not defined by my gender but my ability and willingness to work is what that took me here.

Discrimination is not limited to the legal arena, but it is quite unfortunate that a field that fights for justice ends up having such a wide disparity. What I’d like to say is, do not let your gender define the work you do. This is a fight for our right to provide equal service. The service that we as women provide as lawyers to the public, is no less but at par with any other gender. Let your determination and hardwork push you.

What motivated you to apply for the designation of Senior Advocate, and who encouraged you the most in this pursuit? Additionally, what do you believe sets you apart as a candidate for this position?

My father was not only the fuel but also the fire that pushed me to my financial independence. Even though the commencement of my career was post the passing away of my beloved father, the path he paved while leaving his legacy, is the same I followed, though life had showered unprecedented hurdles in between for me to overcome. It was my father’s principles and values that guided me throughout my journey. But regardless of that, I hold a firm belief that it is your own determination and hardwork that takes you forward. You have to earn your title, claim it with passion and courage. No one confers the title on you, it is earned, it is achieved. My husband, who is also a practising lawyer, has been my biggest support system. His companionship and encouragement is what made me realise how important law as a subject is to me and how it is my passion. His presence has been a constant drive for me to achieve my best.

In your opinion, what initiatives can be implemented to encourage more women lawyers to apply for senior positions within the legal profession?

The first initiative, always, is stepping up. It is the fear, an insecurity or thought that “I might not be as good as the male counterparts, as I don’t see any woman senior” is what holds them back from applying. My firm belief that my work is not better but is no less than my counterparts is what made me step up and I hope this step acts as the first link to a chain reaction. Educating the women lawyers that the value of their work and effort is not dependent on their gender is also quite important for achieving more participation. And, finally, something I’d like to encourage the male counterparts to do is to support women lawyers to step up. Women are not a competition to your stature, but a valuable addition of service to this noble profession.

How do you envision leveraging your role as a Senior Advocate to support and mentor other women lawyers in their careers?

As I said before, stepping up for this post is my first endeavour into encouraging other women to step in. Apart from that, it is my work that I’d like to put forward as an example as I don’t deem my work to be better than others but to make them realise that their work is as worthy as anyone else’s. I want women to recognise their worth and I would like to not lead, but to hold their hands and be a friend, to walk together and help them walk together with me into achieving the dream of showcasing the value of our works without it being belittled on the basis of our gender.

Could you highlight some of the significant cases or contributions you’ve made to the legal field, particularly in areas of your expertise? Is there any special case that stayed with you or has left a lasting impression on you?

I had the opportunity to argue in several significant cases before the Hon’ble High Court of Kerala, which culminated in reportable judgments that had its own profound impact on legal precedent and social justice. I am citing a few here. One of the cases ruled that if parties live together by virtue of a registered agreement, that by itself would not entitle them to claim it as a marriage and claim divorce. In another decision, I advocated for contractual women employees to be entitled to maternity benefits, which resulted in a favourable judgment and ultimately led to the issuance of a Government notification granting six months of maternity leave for all contractual employees. I believe I played a role in expanding the definition of “Establishment” under the Maternity Benefit Act to include establishments as defined by any relevant State law, ensuring broader coverage for maternity rights. Furthermore, I argued against the use of artificial breaks in service between contracts to deny maternity rights to employees, emphasizing the importance of fairness in employment practices and the Court reciprocated in the following way that short artificial breaks in service between successive contracts cannot be used as a device to deny maternity rights to the employees. In a proceeding under the Domestic Violence Act, I emphasized the consequences of non-compliance with maintenance orders, which resulted in the ruling that defence can be struck off for non-compliance with an order of payment of pendente lite maintenance, if the default is found to be wilful.

However, one of the cases that has stayed with me or I’d say has had a lasting impression on me is a Writ Petition filed seeking the relief of Writ of Mandamus against the District Medical Officer (DMO), Thrissur to constitute a Medical Board to evaluate and submit a report of the treatment given to the son of the writ petitioner in a private hospital and the chances of his future treatment if any. I knew that it was an experimental writ. But the faint hope of saving the petitioner’s son’s life drove me to file the same. The petitioner’s son had met with an accident. He had severe head injuries and was admitted in a private hospital and had been under treatment for about 5 months. About 20L had already been spent for his treatment with the help of a social charity committee. One unfortunate day, the petitioner’s son was removed from the ventilator by the hospital authorities and they stopped all life supporting medicines thereafter expressing their helplessness in his future treatment and asked his family to await his death within a few hours. Quite shockingly, fortunately I’d say, his readings remained normal post removal from the ventilator. This is when the petitioner approached me to take action against the hospital authorities. Call it the selfish or unqualified desire of a mother to save a child’s life, it is the impending threat to his life that bothered me at that moment over the actions of the hospital authorities, which is precisely why I proceeded to prepare a Writ Petition of this nature. Ensuing which, the Hon’ble High Court of Kerala directed the DMO to ascertain the patient’s condition then and to find out whether it was possible to afford a shifting to another hospital, and if found conducive, directed further to make arrangements for the same. After receiving the report, this Hon’ble Court directed to arrange for an ALS Ambulance with oxygen and suction facility and the service of a pulmonologist and a trained nurse to shift the patient to Medical College, Thrissur. After about 3 months, with the expertise of the doctors, God’s grace and fate’s supportive hands, the child returned back to his life, to normalcy from the vegetative state he was expected to be in before. This was a pro bono case for me. A lawyer’s profession is that of service and as Kane Morgan quite intriguingly said, sometimes to become a lawyer, we must become an eloquent devil that views justice as God and with that goal, we try paths that may not have been opted by others. For me, this writ was as such, an experiment as I said, a risk I was willing to take. Nonetheless, the petitioners instead of seeing me as the eloquent devil, sees me as someone who gave back their son’s life, a miracle I would refuse to take to my credit, but I would selfishly, quite confidently take the child’s smile to my credit. When I see the child, whom I once saw wired up in a ventilator, breathing—living, as a healthy child brings tremendous joy even today. This more than being a professional achievement, has been a personal one and has always left me in awe of how much service we as lawyers can do to humanity and mankind. These experiences have reinforced my commitment to advocating for equality and justice within the legal system.

Considering the disparity in the number of women designated as Senior Advocates in the Kerala High Court, what strategies do you propose to address this imbalance and promote gender equality within the legal profession?

As per Kerala Bar Council data, there is roughly 1 female advocate for every 2 male advocates in the State. This proportion comes down to 3 to 80 when it comes to the number of senior advocates. Two pertinent questions we should ask here is: 1) Why are women applicants so less? 2) Is it only because the applicants are less, or is there any other factor beyond that preventing them from being selected?. Only a collective attitude that women must be represented if not equally but at least adequately or proportionately and a profession of service needs more “hands”, and not just a particular gender’s hands to extend justice is what that would promote equality in my opinion. This attitude must stem from the excellent minds of Judges, Senior Advocates, other legal professionals and most importantly the new generation of young lawyers.