Blowing Hot and Cold about the CRZ II Status of
109 Grama Panchayaths !

(Coastal Regulation Zone Notification 2019 - Coastal Zone Management Plan in Kerala)

(By Sherry J. Thomas, Advocate, High Court of Kerala)

The history of regulation

A great many local inhabitants are facing hardships for construction of their dwelling houses due to regulations in connection with Coastal Regulation Zone notifications (hereinafter referred as CRZ) time to time. Obviously, first CRZ Notification came in the year 1991 and thereafter 2011 and finally in January, 2019. As per the provisions of the Notification, unless and until Coastal Zone Management Plan (hereinafter referred as CZMP) is prepared, the existing Notification will prevail and the benefits of the new Notification will not be made available to the public. As on today, the prevailing Notification for regulation of building permits is of CRZ 2011 Notification by the erstwhile Ministry on 6.1.2011.

Relaxation in regulations

During the pendency of erstwhile notification, Ministry received representations from various Coastal States and Union Territories besides other stakeholders and accordingly a committee was constituted under the Chairmanship of Dr.Shailesh Nayak to examine various issues and concerns of coastal States and to recommend appropriate changes in the said Notification. Thereafter upon the recommendations, several changes were carried out in the 2011 Notification and a new Notification CRZ 2019 is issued in supersession of the Coastal Regulation Zone Notification 2011. Despite of the same, the benefits of CRZ 2019 Notification is not available to the coastal people, because, as per the clause 6 in the CRZ notification 2029, it will be implemented only on preparation of Coastal Zone Management Plan (CZMP) which is not yet prepared.

The clause 6 of CRZ Notification 2019  read so-

Clause 6: Coastal Zone Management Plan (CZMP) – (i) All coastal States and Union territory administrations shall revise or update their respective coastal zone management plan (CZMP) framed under CRZ Notification, 2011 number S.O. 19 E, dated 6th January, 2011, as per provisions of this notification and submit to the Ministry of Environment, Forest and Climate Change for approval at the earliest and all the project activities attracting the provisions of this notification shall be required to be appraised as per the updated CZMP under this notification and until and unless the CZMPs is so revised or updated, provisions of this notification shall not apply and the CZMP as per provisions of CRZ Notification, 2011 shall continue to be followed for appraisal and  CRZ clearance to such projects.

Now the situation in Kerala is that all the activities in CRZ areas are halted due to the pendency of finalization of CZMP. Obviously that the non-completion of finalization process of CZMP for the CRZ Notification 2019 which is published in January 2019 is not because of the fault of the Coastal people.

Applicability of CRZ - Zone II

The regulations in coastal regulations on notification will vary based on the particular zone in which the land is categorised. If the land is in CRZ zone II category, constructions are permissible on the landward side of existing authorised structure or existing Road.
Ipso facto, if a local body is included in CRZ II category in the coastal zone management plan, they can claim this benefit. It is true that nowhere in the notification, the categorisation is fixed on identification of local body; whereas, it is on the basis of the fact that whether the local body comes under the category of ‘legally designated urban area’.

In order to include many coastal Panchayats under this category for minimising the restrictions in the regularisation,  the State Government issued an order dated 6.10.21 by exercising powers conferred by Rule 3(6) of the Kerala Panchayat Building Rules 2019 notifying several Grama Panchayats as Category I Village Panchayats. The CRZ II category is meant for the legally designated urban area and 175 Coastal Grama Panchayats, will be treated as legally designated urban area. Many of the coastal Panchayats in Kerala is included in the list of 175 Panchayats. The Expert Committee Constituted by State Government recommended to categorize 175 Coastal Panchayats as CRZ II Category. There is criticism on this point that under the guise of enabling the right to home of coastal inhabitants, now the State Government is opening the coastal area to all commercial activities respective whether they are local inhabitants or coastal community, and it will dilute the purpose of regulation itself. At the same time there are arguments that right to property is a constitutional right and by way of this notification, this right is being curtailed for more than three decades and therefore the coastal people are eligible to use their land like any other land holder in the country.

The list 175 vs. 66

As a matter of fact, in order to avail the benefit of CRZ II for many of the coastal Panchayats, the Government of Kerala made a representation to the NCZMA (National Coastal Zone Management Authority) related to CZMP (Coastal Zone Management Plan) pointing out that the term ‘legally designated urban areas’ is not defined under CRZ Notifications and therefore the ‘Urban Areas’ designated by the Acts or Rules or the Census Towns may be considered as ‘legally designated urban areas’ for the purpose of CRZ Notification. However NCZMA vide Agenda No.4.6 of 45th meeting held on 1.7.2022 recommended that only 66 Category I Coastal Grama Panchayats notified before the date of Notification of CRZ Notification 2019 will be considered for the approval by the Ministry as legally designated urban areas as per CRZ Notification 2019. The meaning is clear that those Panchayats remain as Category I on the date of CRZ Notification 2019 will be included in the CRZ II Category and the rest 109 Panchayats will not be included in the list. There is no reasoning for considering classification as on the date of issue of CRZ 2019 Notification.

Undisputedly, as per clause VI of the CRZ 2019 notification unless and until CZMP is prepared for CRZ 2019, the said notification cannot be implemented and existing CZMP of 2011 Notification is prevailing. Therefore, the question to be mooted is that, even now the CZMP of 2019 Notification is not implemented and the date of urbanization has to be calculated from the date of finalization of CZMP not on the date of issue of CRZ 2019 Notification. If the date of finalisation of CZMP is considered, the rest of 109 Grama Panchayats are eligible for counting in CRZ II category.

Yet another aspect is that the guidelines for preparation of CZMP is published as Annexure IV of CRZ Notification 2019. The Paragraph 5 of the Guidelines dealt with classification of CRZ Areas. It is unambiguously stated that the verification shall be based on the latest satellite imagery and ground truthing.

The authorities cannot blow hot and cold as against the right of coastal people. For implementing the New Notification, the authorities are on a stand that the CZM Plan is not yet ready and for considering the categorisation of local bodies which is imperative while preparing plan, they says present status of 109 Panchayats cannot be included as it was not in urban category on the date of CRZ notification 2019. Trite law is that the category available at the date of preparation/finalization of the CZMP, to be considered. The plan itself must be revised every 5 years and the latest status of local bodies should be reflected, for a just consideration.

The relaxation in CRZ Notification 2019, on various aspects was notified with an intention to reduce the difficulties for local communities in construction of their homestead.  The Dr.Shailesh Nayak Committee which was specifically appointed for this purpose recommended to relax the restrictions and accordingly the distance of NDZ is reduced on various categories. Evidently in the CRZ 2019 Notification the NDZ is generally reduced 50 metres in case of water bodies other than sea.

Implementation of latest notification

The implementation of CRZ 2019 Notification will be effective only after the finalization of Coastal Zone Management Plan of the same. The guidelines for preparation of CZMP is published as Annexure IV of CRZ Notification 2019. The Guideline 3(v) says, classification of different coastal zones shall be done as per the CRZ Notification and standard national or international colour codes shall be used. Therefore, it is clear that the classification of categories are to take place while preparation of CZM Maps and not as on the date of issue of Notification. The Paragraph 5 of the Guidelines dealt with classification of CRZ Areas. The land use plan of the area is to be considered. The Para 5(vii) is specific on the point that, “The existing authorized developments on the seaward side shall be clearly demarcated”. The revision of CZMP is also possible as per Para 7 of the Guidelines. It is stated that the verification shall be based on the latest satellite imagery and ground truthing. Therefore, the denial of categorization of CRZ II in connection with 109 Panchayats cannot be construed as legal. The date of issue of Notification is not the criteria, whereas as the latest ground truthing and legal status has to be taken in to account.

Delay in finalizing coastal zone management plan

The State Government is bound to prepare the plan enabling construction of dwelling units of local inhabitants as per the latest documents. Any delay in preparation of such plan may will be prejudicial to the right to home of the coastal people. Comparatively lesser restrictions are incorporated in the 2019 Notification, with an intention to reduce the rigour of regulation so as to enable construction of houses for local inhabitants. In the new Notification, the NDZ is reduced to 20 metres in case of back water islands. The dwelling houses of local inhabitants are also permissible. Therefore, the coastal people are entitled to get the benefit of reduced distance rule in the latest notification. The Honourable Supreme Court in Trilok Chand V. State of Himachal Pradesh (2019 (4) KLT OnLine 3232 (SC) = (2020) 10 SCC 763) held in a case in connection with Prevention of Food Adulteration Act 1954, relied on a previous decision wherein it was opined that, since the amendment was beneficial to the accused persons, it could be applied to earlier cases pending before the courts. In so far as the central amendment reduces the punishment for an offence, there is no reason why the accused should not have given the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of law. The principle is based on sound reason and common sense. This finds support in the following passage from Craies on Statute law 7th Edition at pp 388-89-

“ A retrospective statute is different from an ex post facto statute. “Every ex post facto law....” said Chase, J., in the American case of Calder v. Bull “must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement: as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction…… There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.” (Paragraph 6).

The Honourable Supreme Court also held in Nemi Chand v. State of Rajasthan (2016 (1) KLT OnLine 2795 (SC) = (2018) 17 SCC 448) amendment which is beneficial can be applied even with respect to earlier cases.Therefore the NCZMA shall RECONSIDER the Agenda No.4.6 of  45th meeting dated 1.7.2022 on the basis of date of preparation of Coastal Zone Management Plan as per Annexure A IV guidelines so as to classify 175 Panchayats included in the  Government Order as CRZ II category.  It is also a matter of concern that the preparation of CZMP (Coastal Zone Management Plan) and classification of categories are based on the latest satellite imagery and ground truthing as per
Annexure IV guidelines published in CRZ 2019 Notification.

Furthermore, the restriction for construction of dwelling houses in the No Development Zone of CRZ Notification can be minimised by Incorporation of necessary disaster management provisions and proper sanitation arrangements as per Clause 5.3(ii)(a) of CRZ 2019 Notification. But such provisions are not yet included in the existing draft plan. Therefore, the dream of coastal community to utilise their property for construction of dwelling houses even if it falls under No Development Zone (NDZ) of Coastal Regulation Zone Notification is left unattended.

(This article is based on the latest updates as on 29.02.2024)

JUSTICE ANU SIVARAMAN BIDS ADIEU TO KERALA HIGH COURT:

HER JOURNEY SO FAR

(By Adv. Ashly Harshad, Assistant Editor, KLT)

On the 18th March, 2024 Center notified the transfer of Justice Anu Sivaraman from High Court of Kerala to High Court of Karnataka following a Supreme Court Collegium recommendation accommodating her request. As many lawyers expressed, it will be a loss to the Kerala High Court and a gain to the Karnataka High Court.

Justice Anu Sivaraman, the youngest among the four children of late Mr.Justice V.Sivaraman Nair and Mrs. Nalini Sivaraman was born on May 25, 1966, in Ernakulam. She pursued her schooling at St. Teresa’s Convent Girls High School, Ernakulam and attended St. Teresa’s College for pre-degree before advancing to Maharaja’s College, Ernakulam from where she graduated in English Literature in 1986. She became a Diploma holder in Journalism from the prestigious Kerala Press Academy in 1987. Driven by a passion for legal advocacy, she furthered her studies by pursuing law from Government Law College, Ernakulam. With her enrolment as an advocate on 09.03.1991 a foundation for an illustrious legal career was laid.

Career as a lawyer

As part of her chamber work, she had attended the office of Late Mr. P. Ramakrishnan Nair, a civil lawyer of Kerala High Court. She started practice by being a part of the office headed by Senior Advocate Mr. P. Ravindran, who is her brother in law – her only sister’s husband. She was a Senior Government Pleader from 2006 to 2010. She also served as the Special Government Pleader (Co-operation) during the period from January 2010 to August 2011. For 10 years during the period from 2001 to 2011 she was a Standing Counsel for the Kochi Corporation as well. As a lawyer she has proved her expertise in different laws and has been articulate both in her drafting and arguments. (Excerpts from the speech delivered by the then Advocate General of Kerala, Late Shri K.P.Dandapani in the Full Court Reference held in the High Court of Kerala on 10.4.2015 during the elevation of Justice Anu Sivaraman as the Judge of High Court of Kerala (2015 (2) KLT Journal 37-54).)

Judicial Career

Justice Anu Sivaraman was directly elevated from the bar and was sworn in as Additional Judge of the High Court of Kerala on 10.04.2015. Appointed as Permanent Judge of the High Court of Kerala with effect from 05.04.2017 she depicted dedication to justice, unwavering integrity, and profound wisdom. She has always strived to uphold the standards of fairness and excellence.

As a Judge of Kerala High Court she is often described as a considerate Judge due to her empathetic approach towards cases and litigants who come before her. Justice Anu Sivaraman takes up commendable efforts to ensure fairness and equity in her decisions, including the cases involving vulnerable populations or those facing difficult circumstances.

One such case was regarding the rights of transgender community and their enrollment with the National Cadet Corps. Interpreting the Transgender Persons (Protection of Rights) Act, 2019 and equality clauses of Constitution of India, the rights of the transgender person to join NCC was upheld. It was observed in Hina Haneefa v. State of Kerala (2021 (3) KLT 115) that,

“In view of the specific provisions in the 2019 Act by which a transgender person has a right to be recognized not only as a transgender but also a right to self perceived gender identity I am of the opinion that the petitioner who has opted for the female gender and has undergone sex reassignment surgeries for aiding her self perception as a member of the said gender would definitely be entitled to enrollment in the N.C.C. unit reckoning her as a transgender and further as a member of her self perceived gender, that is, the female gender. The fact that the provisions of the N.C.C. Act do not recognize the third gender or that detailed guidelines are required to be drawn up for the integration of persons of the third gender into the Armed Forces or the National Cadet Corps cannot, according to me, be a justification for denying admission to the petitioner to the NCC unit on the basis of the Identity Card obtained by her.”

Further, in Treasa Josfine v. State of Kerala (2021 (3) KLT 283), the challenge was regarding a provision in the employment notification which discriminated against women from applying to the post of safety officer. Justice Anu Sivaraman quashing the said provision in the notification observed that embargo contained in the notification that ‘only male candidates can apply’ is violative of the provisions of Articles 14, 15 and 16 of the Constitution of India and handed down the ruling that a woman who is fully qualified cannot be denied of her right to be considered for employment only based on her gender.

In Irene Immanuel v. State of Kerala (2021 (5) KLT 540) the issue was regarding the issuance of a community Certificate to a person form an OBC community, whose parents had migrated from the State of Tamil Nadu. The Court after hearing both the sides concluded that, in a case where the community is included in Other Backward Classes in both the State of origin as well as in the State of migration, it is obvious that a certificate can be issued by the competent authority in the migrated State for availing the benefits in the migrated State as well. Since the petitioners were admittedly born and brought up in Kerala and since the Other Backward Class to which they belong is included in the list of Other Backward Classes both in the State of origin as well as in the migrated State, the competent authority with regard to the place of birth and residence of the petitioners would have the jurisdiction to consider the issuance of community certificate to the petitioners.

There are several judgments to her credit which can be considered as valuable precedents on service law, Environment law, Taxation laws and the like.  

Her relationship with the bar was always cordial. Noted for her willingness to listen attentively to all sides of a case and to consider the broader context in which legal issues arise has garnered much appreciation among the bar members. Her demeanour on the bench is marked by a soft-spoken and considerate approach, which fosters an atmosphere of respect and co-operation within the courtroom. Lawyers who have appeared before her often praise her gentle manner of handling cases, finding her demeanour reassuring and conducive to open dialogue.

Transitions are part of life. On behalf of KLT we express our deepest gratitude for her service and wish her all the best in her future endeavours. May the journey ahead be filled with success, fulfillment, and the knowledge that her legacy will endure in the hearts and minds of those she has touched.

The Name of the New Statutes in Sanscritised Hindi

(By Adv.Parippally R. Raveendran,

Special Public Prosecutor, Former member, Bar Council of India)

1. After entrusting Prof. Ranbir Singh as the Chairman of the criminal law amendment committee, the Government of India declared that after the 70 years of post-Independence experience, the court have reviewed the working of the Criminal Procedure Code and Indian Penal Code, but no progress has been achieved in the justice delivery system to the expectation. Therefore, the committee has to exhaust for comprehensive reforms in the criminal and allied laws. While introducing the new Bharathiya Nagarika Suraksha Sanhita 2023, the aim and object of the new legislation is stated as “for good governance, an effective and speedy Justice delivery system is needed”.

2. The object of the new legislation is intended for curbing the delay in dispersing justice to the needy and the inordinate delay in conducting the investigation.

3. In the Criminal Procedure Code, 1973, there are 484 sections. But, in the new statute book BNSS, 531 sections are incorporated. Barring police custody, mandatory forensic investigation and enhancing the rights of the victim, all the sections were rearranged in the new statute book.

4. 99.9% of the new provisions are the verbatim reproduction of the existing statute.

5. The existing Indian Penal Code, The Cr.P.C. and Evidence Act the name of these statues are in English Language, whereas the name of the new statutes were either in Sanskrit or Sanskritised Hindi. Bharathiya Nyaya Samhita 2023, Bharathiya Nagarika Suraksha Samhitha, 2023, Bharathiya Sakshya Niyamam, 2023 and the name of these statutes were proposed in violation of Article 348(1)(b) of Constitution of India.

6. Article 348(1) says about the language to be used in the Supreme Court and High Court and the language of the Acts and Bills etc. by virtue of Article 348(1)(a), in the Supreme Court and High Court and as per clause (b) in the textbooks and as per sub-clause (2) in the both houses of the Parliament, the bills and amendments and clause 1(ii) the law passed by the Parliament and the State Legislature, the ordinance promulgated by the President or Governor as per sub-clause (3), all the orders and rules and the laws passed by the Parliament and Legislatures under the Constitution shall be in English language. As per Article 348 of the Constitution, no bill can be introduced in Parliament either in Hindi or Sanskritised Hindi.

 THE NOTABLE CHANGES IN BNSS

1. Section 176 of BNSS or Section 157 of Cr.P.C., by adding a new sub-section (3), when the police receive information about the commission of a crime punishable for more than 7 years, it is mandatory for a forensic team to visit the scene and collect samples as well as cause videography of the process.

2. A proviso has been added to Section 232 BNSS corresponding to Section 209 of Cr.P.C. wherein during the committal proceedings an application filed by the victim shall also be forwarded to the Sessions Court. Similarly, copies of documents such as police report to be supplied under Section 207 Cr.P.C. or Section 230 BNSS shall also be supplied to the victim or to their advocates thereby the right of the victim is substantially enhanced.

3. Significant changes are made to Section 187 of BNSS. As per S.187(2), the judicial custody can be extended not less than 15 days by a magistrate, but in serious offences the remand can be extended up to 90 days and in comparatively lesser offences the accused can be in judicial custody for atleast 40 days . During this period , if the investigation agency requests for a police custody for purpose of investigation the court will be compelled to accede the demand of the police.

As per the existing S.167(2)(a), a Magistrate can authorize custody upto 60/90 days of which only the first 15 days can be in the police custody as signified by the usage of the words “otherwise than on custody of police, beyond the period of 15 days”. As per the existing law over the 15 days are elapsed, no one can be send to police custody even if the arrested persons were not send to police custody for a total of 15 days. This view was taken held in the landmark decisions C.B.I.v. Anupam J Kulkarni (1992 (1) KLT SN 49 (C.No.64) SC = (1992) 3 SCC 141).

4. The new statute of BNSS seems to be more in line with the Sentil Balalji v. State in 2023. In this case, one of the findings of the case is“the maximum period of 15 days of police custody is meant to be applied to the entire period of investigation-60/90 days as a whole”. The court in Sentil Balaji had also urged a reconsideration of the Anupam Kulkarni by a larger bench. The new amendment regarding the police custody will curtail the civil liberties of the citizens and also there is every possibility for misusing the statutory of provision by the police.

5. Section 15 of BNSS is with regard to the search conducted by the police. As per this provision, search is to be videographed and the material objects seized from the search premises is to be produced within 48 hours to the jurisdictional magistrate.

6. A witness protection scheme is to be formulated by the State Governments as per S.298 of BNSS to protect the rights of the witnesses.

7. While recording the statement of the witnesses under S.183(6)(a) of BNSS (Cr.P.C. - S.164), the Magistrate has to be guided by 2 principles-

●    If a woman is giving the statement, a woman Judge is to record the statement.

●    If an offence is punishable with more than 10 years imprisonment, the Magistrate himself records the statement of the witnesses.

8. If a person is arrested beyond the territorial jurisdiction as per S. 82(2) of BNSS, the factum of arrest is to be intimated where the person ordinarily resides in the district and the information of arrest is to be communicated to the concerned district administration.

9. By virtue of S.71(2) and 73, the summons issued through electronic devices can be accepted. As per 227 of BNSS, the summons and warrant also can be served through electronic media.

10. As per Sections 193(8) and 230 BNSS, if the documents of the accused are voluminous in nature, it can be served through electronic media. Under S.173(1) of BNSS, FIR can also be recorded in the digital mode.

11. As part of the investigation under S.176 of BNSS, the statement of the rape victim can be recorded either in her house or at a place of her choice and a woman police officer has to record the statement in the presence of the relatives of the victim and the process of recording the statement is to be video graphed even using a mobile phone.

12. As per S.360 of BNSS, before withdrawal of the case, the victim is to be heard and this is new provision.

13. Before the trial or appeal concludes, the accused shall be required to execute a bond. A new provision i.e., S.483 has been added to BNSS in the Chapter governing grant of bail. This was earlier seen as S.437A as added by Arunachal Pradesh State amendment. As per this section, before the trial or appeal concludes, the accused shall be required to execute a bond to appear before the next court. This provision enables a positive impact on the person so concerned need not be immediately arrested to secure their presence before court. The litigant public and the legal fraternity is keenly observing whether as per the new amendment in Criminal Procedure Code, any substantial change will reflect to reduce the mounting arrears of 5 crore cases pending in our justice delivery system.

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(By  F.-]n.Fw sambvXp, I®qÀ)

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20. In the result, the revision stands allowed as follows:

(i)    The judgment dated 19.10.2004 of the Additional Sessions Judge, North Paravur in Crl.Appeal No.96/2003, is hereby set aside.

(ii)   The 1st respondent (accused in C.C.No.561/1999 of Judicial First Class MagistrateCourt-I, Aluva) is found guilty of Section 417 I.P.C., and he is convicted thereunder.

(iii)  The 1st respondent (accused in C.C.No.561/1999 of Judicial First Class MagistrateCourt-I, Aluva) is sentenced to imprisonment till the rising of court and fine `1,00,000/- (Rupees One Lakh only).

(iv)  Out of the above fine of `1,00,000/-, if realized, an amount of `90,000/- (Rupees Ninety Thousand only) shall be paid as compensation to the petitioner (PW1 in C.C.No.561/1999) under Section 357(1)(b) Cr.P.C.

(v)  In the event of default of payment of fine, as directed above, the 1st respondent shall undergo simple imprisonment for a term of six months.

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“64. Sentence of imprisonment for non-payment of fine.—In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine.

it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.”

XpSÀ¶p XS-hp-in-£-bpw, ]ng-in£bpw \ÂIm-hp¶ tIÊp-I-fn ]ng in£ am{X-amWv hn[n-¨--sX-¦n AXv HSp-¡m-Xn-cp-¶mep-ff ]c-am-h[n in£ \nb-a-¯nse 65-þmw hIp-¸nepw hni-Z-am-¡p-¶p.

65. Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable.—The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence be punishable with imprisonment as well as fine”.

CXn \n¶pw XS-hp-in-£-bpw, ]ng-in£bpw \ÂIm-hp¶ tIÊp-I-fn ]ng in£ am{Xw \ÂIn-bm B Ipä-¯n-\p-ff ]c-am-h[n XShp in£-bpsS \men-sem¶v XS-hp-in-£sb ]ng HSp-¡m-Xn-cp-¶-Xn-\p-ff XShv in£-bmbn \ÂIp-hm³ ]mSp-f-fq-sh¶v hy-à-am-Ip-¶p. in£m-\n-b-a-¯nse 67-þmw hIp¸nse hy-hØ IqSn ]cn-tim-[n-¡p-t¼mÄ ta hkvXpX kwi-bm-Xo-X-hn[w t_m[-y-s¸-Sp-¶-Xm-Wv.

“67. Imprisonment for non-payment of fine, when offence punishable with fine only.—If the offence be punishable with fine only, the imprisonment which the Court imposes in default of payment of the fine shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine, shall not exceed the following scale, that is to say, for any term not exceeding two months when the amount of the fine shall not exceed fifty rupees, and for any term not exceeding four months when the amount shall not exceed one hundred rupees, and for any term not exceeding six months in any other case.”

ta {]Xn-]m-Zn¨ \nb-a-h-y-h-Ø-I-fpsS hni-Zo-I-c-W-¯n \n¶pw ]ng am{Xw Ipä-¯n-\p-ffin£-bmbn hn[n-¡m-hp¶ tIÊp-I-fn ]ng HSp-¡m-Xn-cp-¶m in£m \nb-a-¯nse 67þmw hIp-¸n {]Xn-]m-Zn¨ ]c-am-h[n XShpw, XS-hpw, ]ngbpw in£-bmbn hn[n-¡m-hp¶ tIÊp-I-fn ]ng am{X-tam, Asæn ]ng-bpw, XShpw \ÂIn in£n-¡-s¸-Sp-I-bm-sW-¦n-tem, ]ng HSp-¡m-Xn-cp-¶m in£m \nb-a-¯nse 65þmw hIp-¸n {]Xn-]m-Zn¨ ]c-am-h[n XS-hpw \ÂIp-¶-Xn-\p-ff A[n-Im-ctam tImS-Xn-IÄ¡p \nbaw A\p-h-Zn-¨n-«p-f-fq-sh¶p t_m[y-am-Ip¶p

Cu teJ-\-¯n ]cm-aÀin¨ tIÊn _lp. tIcf sslt¡m-SXn knwKnÄ s_©v H¶mw FXnÀI-£nsb I.P.C. 417-þmw hIp¸p {]Imcw Ipä-¡m-c-s\¶p IsI-¯p-Ibpw {]kvXpXhIp¸p {]Im-c-ap-ff in£-bp-amWv \ÂI-s¸-«n-cn-¡p-¶-Xv. AXn-\m in£m \nb-a-¯nse 417-þmw hIp-¸-\p-k-cn-¨p-ff ]c-am-h[n in£ F{X-bmsW¶p ChnsS ]cn-tim-[n-t¡-I-XpIv.

in£ Hcp hÀjs¯ ]c-am-h[n XS-thm, ]ngtbm AsÃ-¦n cIpw IqSntbm BIp-¶-Xn-\m ]ng in£ am{Xw {]Xn-]m-Zn-¡p¶ Ipä-]-cn-[n-bn in£m \nb-a-¯nse 417-þmw hIp¸v DÄs¸-Sp-¶n-Ã. AXp-sImIv ]ng HSp-¡m-Xn-cp-¶-Xn-\p-ff XShv in£¡v \nb-a-¯nse 67-þmw hIp¸v _m[-I-am-Ip-¶n-söpw, adn¨p 65-þmw hIp-¸nsâ ]cn-[n-bn-emWv hcp-I-sb¶pw hfsc hy-à-ambn hkvXp-X-IÄ t_m[y-s¸-Sp-¯p-¶p. ]t£ ]ng kwJy Hcp e£w cq] HSp-¡p¶XnÂhogvN hcp-¯n-bm \nb-a-{]-Imcw aq¶p-amkw ]c-am-h[n XShv \ÂtI-In-S¯v _lp: sslt¡m-SXn \ÂInb XShv Bdp-am-k-am-Wv. Cu kml-N-c-y-¯n-emWv {]kvXpX D¯-c-hn\p \nb-a-km-[p-X-bn-söp IsI-¯n-b-Xv.

\nb-a-¯n {]Xn-]m-Zn¨ ]c-am-h[n in£-bn Ihnª in£ \ÂIp-¶-Xn\p sslt¡m-S-Xn-IÄ¡v \nbaw {]tX-yIw A[n-Imcw \ÂI-s¸-«n-«n-Ã. {Inan-\ \S-]-Sn-N-«-¯nse 28-þmw hIp-¸nse {]Xn-]m-Z-y-¯n-eqsS AXv hy-à-am-¡-s¸-«n«p-Iv.

“28. Sentences which High Courts and Sessions Judges may pass.—

(i)  A High Court may pass any sentence authorised by law.

(ii)  .......................................................................................”

dnhn-j³ lÀPn-bn-t·-ep-ff sslt¡m-SXn knwKnÄ s_©nsâ D¯-c-sh¶ \ne-bn sXäv kw`-hn-¨n-«p-sI-¦n kzbw Xncp-¯p-hmt\m, dnhyq sN¿p-hmt\m \nbaw A\p-h-Zn-¡p-¶n-Ã. kvs]j-y eohv s]äo-j-\p-ambn H¶mw FXnÀI-£n¡v _lp.kp{]ow-tIm-S-Xnsb kao-]n-¡p-I-sb-¶Xv am{X-amWv \nb-a-]-c-amb GI]cn-lm-c-amÀ¤w. ]t£ AXn-hnsS Hcn-¡epw kw`-hn¡m-\n-S-bn-Ã. ImcWw ]e X-h-W-I-fmbn Ah-kcw \ÂIn-bn«pw H¶mw FXnÀI-£n sslt¡m-S-Xn-bn¯s¶ t\cnt«m, A`n-`m-j-I³ aptJ-\tbm lmP-cmbnÃ. lÀPn-¡m-c³ `mKw A`n-`m-j I-sâbpw, Kh¬saâv ]»n¡v t{]mkn-I-yq-«-dp-sSbpw hmZ-§Ä tI« tij-amWv Cu tIÊn sslt¡m-SXn D¯-chv ]pd-s¸-Sp-hn-¨n-cn-¡p-¶-Xv.

ta kml-N-c-y-§-fn H¶mw FXnÀI£n ]ng HSp-¡msX Bdp-amkw XShv A\p-`-hn-¡m³ X¿m-dm-Ip-I-bm-sW-¦n Hcp PpUo-j-y D¯-chv `c-W-L-S\ 14-þmw hIp-¸-\p-k-cn-¨p-ff Hcp ]ucsâ aueo-Im-h-Im-i-ew-L-\-¯n\p hgn Hcp-¡p-I-bntÃ. Cu AhØ Hcn-¡epw krjvSn-¡-s¸-Sm-\-\p-h-Zn¨p IqsS¶ e£-y-t¯m-sS-bmWv Cu {]iv\w \nb-a-]-WvUn-X-cpsS {i²-bnÂs¡mIp-h-cp-¶-Xn-te¡p hgn-sbm-cp-¡n-bn-«p-f-f-Xv. Cu teJ-\-¯nsâ GI Dt±-i-hpw, AXv am-{X-amWv AXp-sImIv H¶p-In Cu teJ-\-¯n-eqsS {]I-S-am-¡n-bn-«p-ff \nb-a-{]-iv\§Ä sXäv AXà icn-bm-sW¶ ho£W¯nem-sW¦nÂ,  H¶mw FXnÀI£n XShv A\p-`-hn-¡m³ Hcp-§p¶ kmlN-c-y-sa-¦nÂ, PpVo-j-y D¯-c-hn-eqsS kw`-hn-t¨-¡m-hp¶ `c-W-L-S\ aueo-Im-h-Im-i-ewL\w Hgn-hm-¡m³ kp{]o-tIm-S-Xnsb kao-]n-¡pI F¶ amÀ¤w HgnsI atäsX¦nepw amÀ¤aptIm?CXv IsI-t¯-IXv \nb-a-Ú-·mcpsS IÀ¯-h-y-am-sW¶p Cu teJ-I³ hni-z-kn-¡p-¶p. \nb-a-Ú-·mtc Hcp \nanjw CXn-te............. CXn-te !

When Declaration Needed for Injunction and Recovery

 (By Saji Koduvath, Advocate, Kottayam)

Overview

General Principles as to ‘Injunction’

●    Injunction is granted to ‘prevent breach of an OBLIGATION’.

●    It must be to enforce an individual CIVIL RIGHT.

●    It is a discretionary remedy granted by the civil court.

General Principles as to ‘Recovery’ of Property

●   Plaintiff has to succeed a suit for recovery on title, on the strength of his title.

●  If a person is dispossessed ‘otherwise than in due course of law’, he canrecover the property under Section 6 of the Specific Relief Act, on the strength of his earlier possession.

●   In a suit for recovery on title, even if the defendant claims title as owner and fails   to prove it, the plaintiff can win only if he establishes his title.

●     In a suit for recovery on title, if the defendant establishes his right to continue possession (honouring possession of the plaintiff) as lessee, licencee, mortgagee etc., the plaintiff will fail.

Declaration of Title

●     Declaration is to make clear what is doubtful.

●     Declaration is needed when serious denial or cloud on title. 

●     Declaration is needed as an ‘introduction’ to grant Injunction and Recovery.

●     Declaration is also to tide over Insurmountable obstacle. 

●     Injunction is granted without declaration, when the plaintiff has well established title, or settled lawful possession.

●     No declaration is needed when title claimed by the defendant is null or void.

●     A complete stranger whose interest is in no way affected by another’s legal character is not entitled for a declaration.

Requisites for a Declaratory Suit

In State of M.P. v. Khan Bahadur (AIR 1971 M.P. 65 (A.P.Sen, J.) laid down the requisites for a declaratory suit as under:

 ●    “The requisites for a declaratory suit are well known. In order to obtain relief of this kind, the plaintiff must establish that

  (i)  the plaintiff is at the time of the suit entitled to any legal character or any right to any property;

 (ii)   the defendant has denied or is interested in denying the character or the title of the plaintiff;

 (iii) the declaration asked for is a declaration that the plaintiff is entitled to a legal character or to a right to property, and

 (iv)  the plaintiff is not in a position to claim a further relief than a bare declaration of his title.

  ●  Even if all these conditions are fulfilled, the Court hasstill a discretion to grant or not to grant a declaratory relief depending on the circumstances of each case.”

When Declaration NEEDED (Common Law Principles)

In every Suit for Recovery, Declaration of Title is Not Essential

Persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. (Anathula Sudhakar v.P. Buchi Reddy (2008 (3) KLT SN 26 (C.No.30) SC). In Sudhakara Reddy v. Lakshmamma, (2014 (4) ALT 404, 2011 (4) ALD 325 (D.B.), the High Court found fault with the lower courts for framing an issue so as to embrace a declaration (as to cancellation of a deed) in the suit seeking injunction simpliciter. (See also:Padmavathi v. Kesava Reddi (1987 (2) KLT 386).

When Injunction granted WITHOUT Declaration (Under Enacted Laws)

When Injunction Refused(even if obligation and breach exists)

Section 41 (a) to (j) Sp.Rlf. Act lays down the instances when injunction is refused. It is:

     ● (a) to restrain – a judicial proceeding –

     ● (b) to restrain – instituting any proceeding in a court not subordinate

     ● (c) to restrain – any legislative body

     ● (d) to restrain –proceedings in a criminal matter

     ● (e) to prevent the breach of a contract – which would not be specifically enforced;

     ● (f) to prevent- not reasonably clear – it will be a nuisance;

     ● (g) to prevent – breach which has been acquiesced;

     ● (h) when equally efficacious relief – certainly be obtained – except – trust;

     ● (ha) if it would impede or delay infrastructure project

     ● (i) if conduct – disentitles – assistance of the court;

     ● (j) if plaintiff has no personal interest in the matter.

Other instances: (Injunction Refused- even if obligation and breach exists)

     1.  If payer is to enforce penal law. Section 4 Sp. Relief Act

     2.  If suit became infructuous

     3.  If prayer granted, ineffective: AIR 1961 All.502

    4.  Brutum fulmen: (AIR 1958 All.706; AIR 1986 AP 306); AIR 1978 HP 2 (BRC neeed) AIR 1957 P.& H.214 (execution in Pakistan)

    5. Civil court Jurisdiction, expressly barred by law: (Various Acts)

    6. Res judicata or O.2 R.2 C.P.C. bar.

Injunction is a Possessory Remedy.

The law as to ‘protection of possession’ by court can be summarised as under:

     ● Possession by itself is a substantive right recognised by law. It is heritable and transferable.

     ● Kuttan Narayanan v. Thomman Mathayi, (1966 KLT 1);

     ● Phirayalal Kapur v. Jia Rani, (1972 KLT OnLine 1191 (Del.));

     ● Nallammal v. Ayisha Beevi, 2017-5 Mad. LJ 864). 

     ●  It is trite law that courts protect settled possession.

     ● Rame Gowda v. M.Varadappa Naidu (2004 (1) KLT OnLine 1239 (SC)).

     ●   Injunction is a possessory remedy.

      ●  Ladies Corner, Bangalore v. State of Karnataka (ILR 1987 Kar.1710), (1987 (1) Kar.LJ. 402).

     ● Patil Exhibitors (Pvt.) Ltd. v. The Corporation of The City (M.Venikatachaliah, J.):  AIR 1986 Karnt, 194, ILR 1985 Kar.3700, 1985 (2) Kar.LJ 533.

    ●  Referred to in Chetak Constructions v. Om Prakash (AIR 2003 M.P.145).

    ●  But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.

    ● Padhiyar Prahladji Chenaji v.Maniben Jagmalbhai: (2022 (2) KLT OnLine 1109 (SC)).

Defendant Can Resist Prayer for Advance Amount Without Counter Claim

A defendant in a suit for recovery of earnest money can resist the prayer for realisation of advance amount, without a counter claim, because Section 74 Contract Act which speaks as to ‘party complaining of breach is entitled, reasonable compensation’ applies “whether a person is a plaintiff or a defendant” (even if it is needed, otherwise). See: Kailash Nath v. DDA (2015 (1) KLT SN 53 (C.No.71) SC); Satish Batra v. Sudhir Rawal (2012 (4) KLT SN 81 (C.No.66) SC).

If Title of Plaintiff Nullity, Defendant Need Not file a Substantive Suit

In Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia (2004 (2) KLT SN 100 (C.No.120) SC), the defendants contended that the plaintiff’s title, on the basis of the alleged auction sale ‘was a nullity, as it was ultra vires the legal provisions and on the ground of lack of jurisdiction, non-service of demand notice on all the heirs and co-owners’. The Apex Court held as under:

 ●  “If the title claimed by the plaintiff was a nullity and wholly void, there was no needfor any of the defendants including Bajranglal to challenge it by way of a substantive suit.”

When Plaintiff Claims Title, He has to PROVE Title, in Injunction & Possession Suit

In Yamuna Nagar Improvement Trust v. Khariati Lal, AIR (2005 (2) KLT OnLine 1121 (SC)), it is held as under:

●    “In our opinion, when the plaintiff had approached the court for permanent injunction claiming to be owner of the property, it was his duty to prove that he was the owner of the property, the said property remained in his possession and that the defendant had no right title or interest therein. Since the plaintiff failed to prove his case the suit was liable to be dismissed.”

Possession cannot be Considered in Vacuum

In Maria Margadia Sequeria v. Erasmo Jack De Sequeria (2012 (2) KLT SN 46 (C.No.47) SC),
it is held as under:

 ●  “63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.”  (Quoted in: Ibrahim v. Saythumuhammed (2013 (4) KLT 435).

When Court Decides upon Title, in Injunction Suit.

In Anathula Sudhakar v. P. Buchi Reddy (2008 (3) KLT SN 26 (C.No.30) SC), it is held as under:

         ●   “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: 

       ●   ….. (d)Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.”

A Void Deed need not be Challenged by Claiming a Declaration

It was also held by the Apex Court in Kewal Krishnan v. Rajesh Kumar (2021 (6) KLT SN 42 (C.No.35) SC), that a void deed need not be challenged by claiming a declaration; and that a plea thereof can be set up even in collateral proceedings.

In Madhegowda v. Ankegowda (2002 (1) KLT OnLine 1018 (SC)), our Apex Court has observed that there is little scope for doubt that the transfer of the minor’s interest by a
de facto guardian/manager having been made in violation of the express bar provided under the Hindu Minority and Guardianship Act, 1956, it is per se invalid. Then it is held as under:

        ● “A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding.”

When a person is NOT PARTY to a suit or a Document, Unnecessary to Annul

It is held in Y. G. Gurukul v. Y. Subrahmanyam (AIR 1957 AP 955), as under:

           ● “When a person is not eo nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no such document or decree.” (Followed in Sankaran v. Velukutty (1986 KLT 794.)

See also:

          ● Usman Kurikkal v. Parappur Achuthan Nair (2012 (3) KLT 261)

          ● Sankaran v. Velukutty (1986 KLT 794).

          ● V. Kalyanaswamy v. L. Bakthavatsalam (2020 (4) KLT 913 (SC)).

Cloud – Explained in Anathula – Para 12

A cloud is raised when some apparent defect in his title or some prima facie right of a third party. Not a cloud, if trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title. 

         ● (It should be serious cloud: Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma (2008 (3) KLT OnLine 1121 (SC)) (Quoted in:Muddasani Venkata Narsaiah v. Muddasani Sarojana, AIR 2016 SC 2250).

When declaration refused (S.34 Proviso)           

          1.Further relief possible and not sought for (S.34 Proviso). Where relief of partition is to be sought for, it should be prayed.

          2.Where declaration is a vehicle to launch the weapon of injunction, or recovery – if injunction or recovery itself cannot be granted(or, if granted ineffective:
Brutum-fulmen applies).

Seeking Declaration, Without Prayer for Recovery – Barred by Section 34

In Union of India v. Ibrahim Uddin (2012 (3) KLT SN 73 (C.No.79) SC), the suit was filed for declaration of title of ownership (alone) without seeking consequential relief. (Referred: Ram Saran v. Ganga Devi (AIR 1972 SC 2685), Vinay Krishna v. Keshav Chandra (AIR 1993 SC 957), Gian Kaur v. Raghubir Singh (2011 (4) KLT Suppl.55 (SC)).

When Declaration Given Without Further Relief

        a. No further relief possible on legal character/status or title.

       b. Pecuniary rights (S. 34 is limited to legal character and right to property): State of M.P. v. Khan Bahadur, AIR 1971 MP 65 (A.P. Sen, J.).

Declaration on ‘Legal Character’

Section 34 refers to declaration of status (legal character) or right. Anathula Sudhakar v. P. Buchi Reddy, (2008 (3) KLT SN 26 (C.No.30) SC)), refers to denial/cloud in property rights alone; and notstatus (specifically). Cloud ‘hovering on Legal Character’ is considered in following cases:

          ● Ashoka Sa v. Bidyadhar Patra (AIR 1995 Ori. 59),

          ● Samar Kumar v. Jherna Bera (AIR 2018 SC 334) (Matrimonial status),

          ● Nizar v. Raseena (2018 (4) KLT 870) (Paternity of a child),

          ● Radhakrishnan v. Indu (2018 (3) KLT 664),

         ● United Theological College v. Sunny Kulathakkal (1989 (2) Kar.L.J.456,
      ILR 1989 (Kar.) 3320; See also: AIR 1958 SC 886: Quoted in (2016) 2 SCC 779)
    (Illegal termination of service).

A Complete Stranger not Entitled Declaration

It is held in Ashoka Sa v. Bidyadhar Patra, AIR 1995 Ori. 59, as under:

● “....  A complete stranger whose interest is in no way affected by another’s legal character or who has no interest in another’s property is not entitled to maintain a suit under Section 34.” (Quoted in: Sumathi v. Kamalamma, ILR 2013-3 Ker 259.)

Settled Possession and Established Possession

What is the settled possession or effective possession is made clear in the following decisions:

        ●  Rame Gowda v. M. Varadappa Naidu ((2004) 1 SCC 769),

        ●  Samarpan Varishtha Jan Parisar v. Rajendra Prasad Agarwal (2022 (3) KLT 1150 (SC).

        ●  Poona Ram v. Moti Ram (2019 (1) KLT OnLine 3026 (SC)),

        ●  A. Subramanian v. R. Pannerselvam (2021 (1) KLT OnLine 1168 (SC)).

‘Possession is Good Against all but the True Owner’

This principle is declared in Parry v. Clissold, (1907) AC 73. Though the Supreme Court accepted this principle in Nair Service Society Ltd. v. K.C. Alexander & Ors., (1968 KLT 182 (SC)), it was with a clarification. It reads as under:

        ● “(17) In our judgment this involves an incorrect approach to our problem. To express  our meaning we may begin by reading 1907 AC 73 to discover if the principle that possession is good against all but the true owner has in any way been departed from.

No decree for recovery unless ‘present right to the possession’

While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M.Siddiq v. Mahanth Suresh Das (Ayodhya Case) (2019) 1

 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.

LIMITATION –Declaration

A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years.

Article 65 and not Article 58 of the Limitation Act Governs

In State of Maharashtra v. Pravin Jethalal Kamdar, (2000 (1) KLT OnLine 942 (SC)), it is held by the Supreme Court that merely for the fact that the plaintiff, besides the relief of possession, sought declaration also is of no consequence, and that in such a case the governing article of the Schedule to the Limitation Act would be Article 65.

In C.Natrajan v. Ashim Bai ((2007) 14 SCC 183), the Apex Court held that in the suit which has been filed for possession, as a consequence of declaration of the plaintiff‘s title,
Article 58 will have no application.(See also: Seshumull M.Shah v. Sayed Abdul Rashid,
(AIR 1991 Kar.273). In S.Krishnamma v. T.S.Viswajith: 2009 (4) KLT 840, it is held that when a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit, the consequential relief sought for is to be treated as main relief governing the period of limitation for the suit.