Departure of Lord Denning - A Tribute

(By Justice C.K. Thakker, Judge, High Court of Gujarat, Ahmedabad)

As earth thy body keeps, thy soul the sky,

So shall this verse preserve thy memory;

For thou shall make it live,

Because it sings of thee.

On March 5, 1999, Lord Denning passed away. After completing 100 years of age, the Master of the Rolls left us leaving behind him plethora of precedents, several memorable judgments and numerous thought provoking books1.

Often innovative, occasionally controversial and undoubtedly a great Judge of twentieth century, Lord Alfred Thompson Denning, popularly known as "Tom Denning" was born on January 23, 1899 at Whitchurch in Hampshire. After graduating from Oxford University, he was called to the Bar in 1921. In 1944, Lord Denning was appointed as a Judge of the High Court. In 1949, he was promoted to the Court of Appeal and in 1957, to the House of Lords. In 1962, he was appointed the Master of the Rolls and occupied that position upto 1982.

The contribution of Lord Denning will never be forgotten by legal world. Take any branch of law and you will find judgments of Lord Denning. May it be Contract or Tort, Equity or Trust, Family matters. Landlords and Tenants, Town Planning, Housing Development, Labour Law, Interpretation of Statutes, Administrative Law or Constitutional Law, there are bound to be important decisions of Lord Denning.

Lord Denning believed in doing justice - full and complete. He, therefore, interpreted statutory provisions in the light of the ultimate goal to be achieved, which was Justice. Inspite of the limitations of a Judge, according to him, it was possible to do justice to the cause by interpreting law as required in the case on hand. In his words, "a Judge must not alter material of which it is woven but he can and should iron out the creases."2 Though, the House of Lords did not approve the view of Lord Denning and described it as "a naked usurpation of the legislative function "3, it cannot be gainsaid that in interpreting a statute, a Judge should not be oblivious and ignorant of justice.

In upholding the right of locus standi. Lord Denning did not stick to the traditional view of "person aggrieved". He evolved the concept of "sufficient interest" of an applicant who approaches a court of law."4

In R. v. Greater London Council, ex parte Blackburn,5 prohibition was sought restraining the Council from illegally exhibiting pornographic films. Locus Standi of Blackburn was challenged. Negativing the contention and upholding locus standi of the applicant, Lord Denning observed; "If Blackburn had no sufficient interest, no other citizen had and in that event no one would be able to bring an action for enforcing the law and transgression of law would continue unabated". Though House of Lords reversed the decision of Lord Denning 6, in his well known work7, Lord Denning said; "I must confess that whenever an ordinary citizen comes to the Court of Appeal and complains that this is that Government Department - or this or that Local Authority -or this or that Trade Union - is abusing or misusing its power -I always like to hear what he has to say." (Emphasis supplied)

In the field of Administrative Law, the contribution of Lord Denning will be remembered for all time to come. In English Legal system, which was under the influence of Dicey, it was Lord Denning who openly proclaimed; "It may truly now be said that we have developed system of administrative law". He delivered several judgments on the principles of natural justice. Regarding bias, his views were unambiguous and clear. Applying the test of likelihood of bias, he ruled that the Presiding Officer must be above bias or prejudice. Reiterating the test of Lord Hewart, C.J.8, that "Justice should not only be done but manifestly and undoubtedly be seen to be done"; and of Lord Bowen, J.9 that "Judges, like Caesar's wife must be above suspicion", Lord Denning said; "Reason is plain enough. Justice must be rooted in confidence andconfidenceis destroyed when right minded people go away thinking 'the Judge was biased' "10 (Emphasis supplied)

Often the concept of "natural justice" was criticised describing it as an "unruly horse". The reply of Lord Denning was that, "With a good man in the saddle, unruly horse can be kept under control. It can jump over obstacles. It can leap fences put up by fictions and come down on the side of justice."11

About the right to be represented by a counsel, Lord Denning asserted that "when a man's reputation or livelihood is at stake, he not only has a right to speak by his own mouth but has also right to speak by Counsel or Solicitor. Even a prisoner can have his friend." 12(Emphasis supplied)

In 'Delegated Legislation', Lord Denning declared that "whereas administrative function can often be delegated judicial function rarely can be. No judicial Tribunal can delegate its function, unless it is enabled to do so expressly or by necessary implication." Lord Denning said; "When an Act is held ultra vires, it is null and void and of no legal effect whatsoever. Such void act cannot even be ratified subsequently. Effect of ratification is to make it equal to a prior command but as a prior command in the shape of delegation would be useless, so also is a ratification".13

His contribution to the "Doctrine of Estoppel" is unique in nature. Under the traditional law, the doctrine could be used only as a defence but could not be made the cause of action. In other words, it could be used as a shield but not as a sword 14. Lord Denning challenged the limited application of the doctrine. In his opinion, the doctrine was based on equity, where justice would prevail over truth. In High Trees,15Lord Denning held that the doctrine of estoppel need not be inhibited by narrow application as defence and it was open to the applicant to invoke the doctrine of equitable estoppel * to get appropriate relief from a competent Court.

Lord Denning believed in preservation and maintenance of Rule of law. Hence, when injunction was sought against an illegal act of a public authority and it was contended by the authority that if injunction were granted, there would be administrative chaos, Lord Denning proclaimed; "I must say this: If a local authority does not fulfill the requirements of the law, this Court will see that it does fulfill them. It will not listento suggestion of chaos...................Even if chaos should result, still law must beobeyed."16(Emphasis supplied)

Lord Denning was a progressive Judge. He believed in doing justice to the case on hand. His judicial philosophy is reflected in the following statement; "My root belief is that the proper role of the Judge is to do justice between parties before him. If there is any rule of law, which impairs, the doing of justice, then it is the province of the Judge to do all that he legitimately can to avoid that rule - or even to change it - so as to do justice in the instant case before him. He need not wait for legislation to intervene; because that can never be of any help in the instant case".17

He was, however, conscious of the limitations of a Judge and hence proceeded to state; "I would emphasise, however, the word "legitimately"; the judge is himself subject to law and must abide by it."18

He reiterated what Thomas Fuller said more than three centuries ago; "Be you ever so high, the law is above you."19

Lord Denning always emphasised that a judge must be cool, quiet and sober. He stated; "One thing a Judge must never do. He must never lose his temper."20

Lord Denning was a champion of personal liberty and individual freedom, but not at the cost of interest of society at large. According to him, a balance must be struck between private rights and social security. In a country where Parliament is sovereign and can do everything, "but make a woman a man and a man a woman". Lord Denning stated; "To my mind it is fundamental to our society to see that powers are not abused or misused. If they come into conflict with freedom of an individual or with any other of our fundamental freedoms, then it is the province of the Judge to hold the balance between the competing interests.21

Lord Denning was very popular with law students. Mr. Alex Lyon, M.P. who was a law student said; "Lord Denning was my great Hero when I was a law student. I used to go to sit in the Court just to listen to him. He has a beautiful voice and beautiful delivery but I was also enthralled by what he was doing to the law to advance it into the twentieth century."22

On his seventy-ninth birthday, a student from the University of Toronto sent a birthday card to Lord Denning. It was a cartoon showing a horse and a rider leaping over a fence and was titled; "Obstruction to Justice." The horse had a streamer on his tail, with a label, 'Public policy'. The rider was a Judge, in joyous mood and in full control, with wig and gown flying. Lord Denning was very much pleased and replied wishing that the students should become good horsemen and horsewomen.23

On July 31, 1982, farewell was given to Lord Denning on his retirement. In valedictory speech, the Lord High Chancellor, Lord Hailsham of St. Marylebone said; "It is given to few men to become a legend in their lifetime. There would be few in this country who would deny that Lord Denning is one of these few. From the numbers and standing of his own fraternity of the law assembled here today to do him honour, we can readily infer, that he has been and is a golden legend."

The Lord High Chancellor concluded:

"Without him, things will never be quite the same again. I like to think that notwithstanding his retirement our period of creativity will not quite come to an end, still less relapse once more into quiescence. But, master of the Rolls, we shall miss you. We shall miss your passion for justice, your independence and quality of thought, your liberal mind, your geniality, your unfailing courtesy to colleagues, to counsel, and to litigants in person who, like the poor, are always with us, particularly in the Court of Appeal. Above all, we shall miss you and your gift of friendship, your sturdy independence, and your unflagging and effervescent enthusiasm. Now you belong to history. But here you see around you a company of admirers and friends. We wish you well, both you and Lady Denning. Come and see us often. Wherever lawyers are gathered together they will always rejoice to see you in their midst."24

Many Judges have been admired for their learning and erudition but Lord Denning was loved by one and all. It was because of his basic humanity, unfailing courtesy and kindness towards litigants, lawyers and brother judges. Lord Scarman said; "He was the finest judge that I ever met in my time, one of my heroes." Lord Woolf, the present Master of the Rolls recalls how Lord Denning guided him when he was a young advocate. Rich tribute was paid by Lord Chief Justice Bingham when he stated; "Lord Denning was the best known and best loved judge of this, or perhaps any generation".

The author was fortunate enough to have Lord Denning's blessings in all his works25. Though the author had no occasion to meet Lord Denning personally, he would always cherish the memory of Lord Denning for the blessings and encouragement extended to him for the last more than six years.

Though Lord Denning is not with us today, one should remember that "the fact that we cannot see our friends or communicate with them after transformation which we call 'death' is no proof that they cease to exist."

We can only pray God for eternal and everlasting peace to the departed soul by stating what Alic Gary said:

''Ye doubting souls, from doubt be free-

ye mourners, mourn no more;

For every wave of Death's dark sea,

Breaks on that blissful shore".

__________________________________________________________________

1."Freedom under the Law" (1949); "The Changing Law" (1953); "The Road to Justice" (1955); "The Discipline of Law" (1979); "The Due Process of Law" (1980); "The Family Story" (1981); "What Next in the Law"(1982); "The Closing Chapter" (1983); "Landmarks in the Law" (1984).

2. Seaford Court Estates Ltd. v. Asher;(1949) 1 KB 481; (1949) 2 All. ER 155; (AC) See also Asher v. Seaford Court Estates Ltd.; (1950) All. ER 1018; 1950 AC 508.(HL)

3. Magor & St. Mellons Rural District Council v. New Port Corporation; (1951) 2 All ER 839:1952 AC 189.

4. Attorney General of Gambia v. Pierra Sarr N'Jie; 196l AC 617: (1961) 2 All ER 504: (1961) 2 WLR 504:(196l) 2 WLR 845: Maurice v. London County Council; (1964) 2 QB 362; Attorney General ex rel Mc Whirter v. lndependent Broadcasting Authority; 1973QB 629: (1973) 1 All ER 689: (1973) 2 WLR 344; Rex v. Greater London Council, ex parte Blackburn; (1976) 3 All ER 84: (1976)1 WLR 550; Gouriet v. Union of Post Office Workers; (1977) 1 All ER 6960: (1977) 2 WLR 310: 1977 QB 729

5. (1977) All ER 696: (1977) 2 WLR 310: 1977 QB 729(CA)

6. Gouriet v. Union of Post Office Workers (1977) 3 All ER 70; (1977) 3 WLR 300:1978 AC 435 (HL).

7. “The Discipline of Law” (1979); P.144; See also V.G. Ramachandran;" Law of Writs"; (1993); pp. 24-25.

8. R.V. Sussex Justices; (l924) 1 KB 256 (259): 1923 All ER 233:93 LJKB 129.

9. Leeson v. General Council of Medical Education & Registration; (1889) 43 Ch D 366 (385): 1886-90 All ER 78:61 LT 849.

10. Metropolitan Properties Ltd. v. Lannon;(1069) 1QB 577 (578): (1968) 3 All ER 304: (1968) 3 WLR 394.

11. Enderby Town Football Club Ltd. v. Football Assn. Ltd.; 1971 Ch D 591 (606): (1971) 1All ER 215; See also "The Discipline of Law" (1979); pp. 170-73.

12. Pett v. Greyhound Racing Association (I); (1968) 2 All ER 545 (549) : (1969) 1 QB 125 (132) : (1968) 2 WLR 1471.

13. Barnard v. National Dock Labour Board; (1953) 1 All ER 1113 (1119):(1953)2 QB 18; see also "The Discipline of Law"(1979);pp 79-81.

14. "The Closing Chapter"; (1983); pp 254-57; "The Discipline of Law"; (1981); pp 199-223.

15. Central London Property Trust Ltd. v. High Trees House Ltd.; (1947) 1 KB 130; (1946) 1 All ER 256; see also Robertson v. Minister of Pensions; (1948) 2 All ER 767: (1949) 1 KB 227; Lever(Finance)Ltd. v. Westminister Corporation; (1970) 3 All ER 496:(1971) 1QB 222.

16. Bradbury v. London Borough Council; (1967) 3 All ER 434 (441): (1967) 1 WLR1311.

17. "The Family Story"; (1981) p. 174.

18. Ibid. It was however, doubtful whether the word "legitimately" had any significance in view of another statement;

"I never say 'I regret having to come to this conclusion but I have no option. There is always a way round. There is always an option - in my philosophy - by which justice can be done'." "The Family Story"; (1981); p. 208.

Jowell & McAuslan; "Lord Denning: The Judge and the Laws"; (1984); p.80.

19. "The Family Story";(1981); p.l79.

20. Ibid; at p. 206.

21. Ibid; at p. 179; see also "Freedom Under the Law"; (1949); p. 179; "The moral of it all is that a true balance must be kept between personal freedom on the one hand and social security on the other."

22. "The Listener"; September27, 1979.

23. "The Discipline of Law"(1979);pp. 172-73.

24. "Farewell to Lord Denning"; The Lord High Chancellor Lord Hailsham of St. Marylebone; on July 30, 1982.

25. Justice C.K. Thakker; "Administrative Law": (1992); V.G. Ramachandran; "Law of Writs"; Fifth edition by Justice C.K. Thakker; (1993); "Criminal Procedure"; (1994); "Civil Procedure"; (1997); "Lectures on Administrative Law" (1998); Ratanlal & Dhirajlal "Law of Crimes"(24th edn.) by Justice C.K. Thakker (1998).

relegated to a secondary position in the newly created R.9A, and service by RPAD, fax, approved courier service or e-mail have been given primary position. However, in practical plane an insurance against few difficulties may have to be provided. For instance it has been experienced even by this author that transmission of message by e-mail is susceptible to be corrupted by virus, with the result the sender's system may inform transmission of message, while the receiver may not receive it at all.

But the most serious criticism is regarding the proviso to the newly introduced R.9(3) which provides that where summons is send by RPAD, notwithstanding the fact that acknowledgement card has not returned or mislaid, the Court shall still declare that the summons has been duly served on the date fixed by it. Even S.27 of General Clauses Act provides for only a rebuttable presumption that a registered post has reached the addressee. If the Court makes a declaration under O.V R.9(3) proviso, then it may be difficult for any party, who has not been actually served, to set aside a decree under O.IX R.13, for one of the two grounds available for the defendant to set aside an ex parte decree is that the summons has not been duly served. The amended O.V R.9(3) seeks to convert what has been hither to a rebuttable presumption, into one of conclusive presumption, if not a fictional proof. It is not advisable, if not dangerous, for procedural law to declare justice on presumptive service of notice of a suit. At the best it can only be a last resort, but never can it be a primary mode.

(c) In O.VI, the shocking amendment has been the deletion of R.17 and 18 relating to amendment of pleadings. Alongside, O.VIII Rr.9 and 10 too have been deleted. Let us presume some formal defect other than the one already discussed, in (b) above, such as seeking an alternate relief where there is a pleading, or a much more innocuous amendment for correcting a wrong survey number or a boundary. Then there may be subsequent changes some of which may not be evidentiary. You cannot seek amendment of pleadings now. S.151 may have an assignment here. But, if S.151 is to be interpretated as a panacea for all procedural shortcomings, then the amendments achieve very little by way of reformation of legal system. At any rate it leaves a debate open, enabling our various High Courts to deliver divergent opinions to be finally settled by the Supreme Court, long after some injury is inflicted and the agony is suffered. The right to amend is an insurance against multiplicity of proceedings and the same ought not have been denied to the litigants.

(d) The amendments to O.VII Rr.14 and 18 requires a close attention for it poses greater threat to justice as a common man understands the concept. Existing rules were substituted. This may be read in conjunction with another amendment involving the deletion of O.XVIII R.17A. Necessary amendments have also been made to O.XIII R.1, while R.2 of that order has been deleted. The present position is that the plaintiff must file along with the plaint all the documents upon which he institutes the suit, and to file a list of documents he relies on, and if he omits to do the same, he shall not be permitted to file them except with the leave of the Court. The amended provision says that all documents either the one upon which suit is filed or which the plaintiff relies on, should be listed and filed along with the plaint. True the new R.14 (2) provides that where documents are not in the possession or power of the plaintiff, he may state in whose custody it is. Similar amendments have also been introduced in O.VIII. Now let us imagine a situation; What, if a party does not know about the existence of a certain document that affects his right. It may be a document on which the parties may litigate. Presently, if such documents are found pendente lite, the same may be produced and if necessary, the plaint could be suitably amended. Unfortunately O.VI R.17 of Rr.17 and 18 have been deleted. So the plaint could not be amended. Additional pleadings could not be filed, because O.VIII Rr.9 and 10 too have been deleted. The suit could not be withdrawn with the leave to file a fresh suit on the same cause of action under O.XXIIIR.1, because the situation discussed may not constitute a formal defect within the meaning of that order. The new amendment does not touch O.XXIII R.1, or Explanation IV to S.11, or O.II, R.2, in order the difficulty created can be removed, if not now, at least later. The next situation is even worse. Where a document is crucial, but only evidentiary, of which a party does not have any knowledge about before trial, it is impossible for him to admit it in evidence notwithstanding its admissibility otherwise. He now can only hold it in his hand to write a memoir as to how he lost a battle for want of knowledge about an evidentiary document. Where we are heading for? The situation is further complicated by the fact that O.XLI R.27 providing for production of additional evidence before the appellate Court has not been deleted. This implies that an evidentiary document detected pendente lite and hence incapable of production before the trial Court can still be produced before the appellate Court, and the sufficient cause required for its non production before the trial court could still be the lack of knowledge about the existence of the document. The inexplicability is mindboggling.

(e) The time provided for filing written statement under O.VIII R.1 has now been limited to one month, with a further extension for another month. It is debatable if time could be further extended under S.148. In one sense it is a welcome limitation. But as said elsewhere in this article it ought to have been made a bit flexible. There may arise a situation where a defendant may not possess necessary records with him. Most may be revenue records, others may be with the sub registry. Then it will become difficult for a defendant even to conceptualize his defence. While one or two months time may be adequate for obtaining records in an ideal circumstances, practical pragmatism informs that considerable delay often is inevitably consumed, for the public officers entrusted with the statutory responsibility are not always expected to act without an extra statutory incentive. In the absence of any provision for amendment of pleadings, too much burden is cast on the defendant. Therefore, the Court should have the power to extend time in rarest of rare cases beyond the two months provided for.

(f) Under O.XIV, where the Court is obligated to frame issues on material points in controversy, its freedom, if not the power to amend or strike out issues has been stripped of in the new look C.P.C. The ante-thesis to the amendment theme may well have its genesis here. What, if an appropriate issue is not pointedly framed, but a decision is still given while dealing with another issue. Incentive is now given for an unscrupulous litigant, who may now file another suit on aspects touching on the issue omitted to be framed in the earlier round, and may contend that what was originally 'observed' was only reasoning of the Court while dealing with another issue, and that under S.11, reasoning is not res judicata (AIR 1963 SC 1122). If a decision is on an issue, it fits in with the definition of res judicata in a second round battle. But if a doubt is raised whether a certain finding is a decision on issue or a mere reasoning, then it becomes an ideal material for a Court room debate. It is humbly felt that lack of precision may consume Court's time.

(g) The next interesting instance of speed based amendment is in O.XVIII R.4 has been replaced. Now chief examination is through affidavit and cross examination is by commission. Shame, a litigant must pay for the Commissioner, who shall be from a panel to be prepared by the High Court. The reason according to draftsman is that most of Court room work is wasted in examination of witnesses. But Court has still time for adjourning cases, which consumes bulk of its time in the name of calling work, to record, if summons has been issued or returned, if counter has been filed, if orders have been extended, and whole lot of other innocuous work. But the all crucial trial work, perhaps the real function of a trial court judge, has been delegated to Commissioners. The Judge will not now have any opportunity to see the demeanour of a witness or the manner in which he answers. A significant casualty is that the Court room ambience, which has traditionally been a time tested lie detector for a witness attempting to perjure himself, now stands lost in the name of saving the judicial time. The amendment attempts to depersonize the trial Judge, which one would have wished in various other aspects of justice dispensation. And then the cost. What a shame that the State should commercialise justice. Is it not the duty of the State to provide justice. After all State receives Court fees. Now what about an indigent person? No provision is made. If the State is concerned about payment of Commissioner's costs then let it create a Fund for the purpose under one of its many legal aid programmes. Insisting on Commission cost is a blatant denigration of Art.39-A of our Constitution and an insult to the citizen.

(h)One baffling amendment has been made to O.XX R.1. Hitherto, under R.1(2), a Judge when delivering a written judgment, shall make available a copy of the judgment for the perusal of the parties or the pleaders immediately after the judgment is pronounced. The amendment dispenses with this requirement. It is amazingly surprising how this amendment helps the advancement of the theme of amendment, viz. speedy disposal. What then a Judge is expected to do? He need not engage in examination of witnesses because that is a waste of judicial time. He is not required to make ready his judgment immediately on its pronouncement. What then are the other more serious jobs that a Judge is entrusted with. May be, he will effectively engage himself in calling work and hear arguments. Here, the draftsman is found awfully wanting. There is no provision for submitting argument notes. This will, not only likely to save considerable judicial time, but also fix up the responsibility of the Judge to delve into the various points argued. It will also aid in a proper performance audit of a Judge. Therefore, in the emerging scenario, how will a Judge be seen to dispense fair justice, when a simple mechanism ensuring his functional accountability is done away with. The laity on the road may have few uncomfortable questions for the draftsman: "Who protects whom? And why?" May be the draftsman may defend his action with his amendment of R.6B. R.6B in its latest form prescribes that copies of judgments shall be made immediately available to the parties on payment of such charges as may be prescribed by the High Court. (In the earlier version only in the case of type written judgments copies may be made immediately available). But experience informs both the lawyer and the litigant that even the earlier provision has been a non starter. There has been a deplorable tendency displayed by some judicial officers who will withhold judgments in their chambers denying the anxious litigant an opportunity to peruse the judgment deciding his right, on the ground that the draft is yet to be corrected. The Code either new or old, does not provide for pronouncing uncorrected draft judgments. It is not an wholesome condemnation of our honourable Judges. But honestly being a vacillating virtue, a few may be tempted to err. After all Judges are human too. Therefore, a procedural provision may still be essential to curb such temptations. When R.1(2) provided for making immediate availability of judgments, at least there will be a statutory compulsion, howsoever dysfunctional the same might be, for ensuring functional accountability of Judges. Then there may arise another peculiar situation: Copies shall be made available on payment of charges for the purpose of preferring appeal. What, if a litigant does not want to prefer an appeal, or does not want to pay the required charge for the copy. Is he not then entitled to peruse the judgment immediately. If he should not, why not?

It’s time we also think in terms of incorporating the decretal portion in the last paragraph of the judgment itself, abolishing thereby the need to draft decrees. The decree is only going to state the cause title, date of institution of the suit, court fees paid, operative portion of the judgment and the cost along with the schedule of property. There is far too much attachment to decrees, for it is the decree which is executed. But by appropriate amendments, time and expense involved can be reduced.

(i) Amendment to O.XLI R. 11 introduces, subtly though, the concept of admission in first appeals when the findings on facts still await a finality. Not surprising for Justice Malimath Committee to have recommended it. But it involves considerable risk, for it requires a sound Judge made of fine judicial temperament, as a pre-requisite. It is imperative therefore, that the first appellate Judges are prepared well in advance for discharging this responsibility, lest there is a greater danger for grave injustice.

(j) As regards Second Appeal crucial amendment has been made to S.102. Now Second Appeal, where the value of the subject matter is less than Rs.25,000/- is barred. Under the present S.102, only those suits of the nature cognizable by Courts small causes of the value Rs.1,000/- were denied the right to Second Appeal. No such qualification is available in S.102. However, the notes on clauses appended to the Bill on the present amendment would like one to believe that only Rs.25,000/- has replaced Rs.1,000/- in view of fall in value of money. There are several provisions in the Court Fee Act which provides Rs.400/- or less as the minimum value of the subject matter, where the same is incapable of proper valuation. Mostly the minimum statutory value stipulated is adopted. If S.102 as amended takes effect and interpreted strictly, then most suits will attain finality after First Appeal.

(k) Amendment to S.115 restricts the High Court's power of revision of order only to cases where an order in favour of the revision petitioner would dispose of the lis. Instead revisional jurisdiction of the High Court could have been deleted. A revisional order probably may dispose of a lis, against an order dismissing an application for rejecting the plaint under O.VII R.11.or one for dismissing the suit for non-compliance with the order of discovery under O.XI R.11, or where a party refuses to give evidence or produce documents under O.XVI R.20. But these are provisions rarely resorted to even before the trial Court.

III. The foregoing discussion is not a product of an exhaustive exercise. Nor the author claims that his views are absolute. After all, a complete commentary on the Code is as elusive as an attempt to achieve perfection. It is a humble invitation to the legal fraternity for a greater, purposeful and justice oriented discussions. Its time to act, for the danger is at the door step.

Precautionary Principle and Environmental Regime

(By P. Leelakrishnan, Advocate, High Court of Kerala)

Sustainable development demands striking a balance between environmental values and developmental needs. No doubt a plethora of problems spring up in this respect and are to be settled. Uncertainty of scientific opinion on questions to be decided is one of them. Necessarily, this makes the decision-maker more responsible and caitiuos. A.P. Pollution Control Board v. M.V. Nayudu(AIR 1999 SC 812) seized of this problem and formulated precautionary principle as a guide in avoiding the crisis of decision making.

The facts of the case show that the State Pollution Control Board refused to grant the respondent company no-objection certificate and the consent required under the Water Act 1974, on the ground that the process of manufacturing B.S.S. grade castor oil and glycerine has pollution potential and that the proposed site within prohibited zone often kilo-metres around the lakes supplying drinking water was objectionable. The company succeeded to get the case remanded in a statutory appeal. The appellate authority, on the basis of the reports and affidavit filed by an experienced scientist, held that the board should not have refused consent merely because an industry produces hazardous substance but could have given consent with conditions and safeguards. The High Court adopted a deferential approach to this opinion and did not interfere. The appeal before the Supreme Court was filed by the Pollution Control Board. The Supreme Court neither agreed with the board nor endorsed the view of the appellate authority. Interestingly, they said that appellate authorities and Courts without technical inputs are not competent to decide matters involving environmental expertise. Hence, they thought it better to-refer the matter for investigation by National Environmental Appellate Authority (NEAA) and report. Although in the process, they laid down certain significant propositions and suggestions for law reform, the Supreme Court was conspicious in dwelling on the 'precautionary principle' that should act as a guide in adopting cost-effective measures for preventing degradation of environment.

Precautionary Principle

Precaution is always necessary to avert possible dangers. This is true of steps to avoid environmental mishaps. This is especially so because even scientists may not be sure whether or not there would be harm to the environment and if there is one, the extent of the environmental harm as a result of implementation of a development project. On the global problems such as depletion of ozone layer and green house effects the scientific community had held driametrically opposing views. Consequently, precautionary measures and standards of behaviour were suggested at the international forums in order to tide over the difference of opinion. The concept of precautionary approach for protection of environment was rendered international acceptance at the U.N. conference in Rio in 1992. The Rio Declaration lays down:

"In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation" (Rio Declaration, Principle 15)

One adopts precautionary approach when there is a reasonable apprehension of environmental harm behind a proposed action. The precautionary principle has becomeas part of the customary law since many Nations began to adopt the approach for preventing irreversible environmental harm.

Stockholm Conference in 1972 was the first attempt at instilling the world awareness for environmental protection. It was less concerned with development than Rio Conference of 1992 was. Stockholm lingered on a theory of assimilation.1 The idea was that harm to the environment would be assimilated as the environment had the capacity to assimilate substance so as to render them harmless. The theory becomes inapplicable when one does not determine in advance the extent of harm and the extent of the assimilative capacity. It also becomes impracticable when one finds no suitable technical expertise available to confine the harm within limits of the carrying capacity. It is in this background that the Rio Conference in 1992 recognised the precautionary approach as a useful strategy for the nations to follow for the purpose of preventing degration and improving the quality of environment.

Citing the principle as recognized by the Rio declaration, the Nayudu's case seems to suggest that it is better to err on the side of caution and to prevent irreversible environmental harm than to run the risk and to get entangled in a gamble. The principle of precaution no doubt involves the anticipation of environmental harm; it necessitates measures to avoid it or to choose the least environmentally harmful activity. The uncertainty of science had led to certain dangerous situations in the past. It is science that has created such situations in its march towards new frontiers. The CFC and DDT were considered environmentally benign when they were first developed.2 But scientists themselves have come up worried over their adverse effects on the environment later on. The Nayudu's case held that the precautionary principle is based upon such scientific uncertainty. The Court went on

"The environmental protection should not only aim at protecting health, property and economic interest but also protect the environment for its own sake; precautionary duties must not only be triggored by suspicion of concrete danger but also by (justified) concern or risk potential."(Supra, n.1, pp.820, 821.)

What is stated in the Rio declaration is 'precautionary approach'. The expression 'approach' does not lose its character as a principle.

Burden shifting

Highlighting the precautionary principle, the Supreme Court reiterated the dictum of Vellore Citizens Forum'scase that 'the burden is on the developer or the industrialist to prove that his action is environmentally benign'3. This is because the adverse effects on environment is unanticipated. The effects may be serious, irreversible and non-negligible. Inevitably, the one who attempts to change the status quo by implementing the proposed project has to prove that the activity is environmentally benign.4 Imposition of such an onerous duty on him makes the developer behave in a responsible manner from the very beginning. He shall plan and design the project with in-built safeguards. In other words, he shall never leave any stone unturned for introducing cleaner technologies in his ventures. However, the shifting of the burden will not fully solve the problem. The need to identify instances of non-negligible risks still remains.

The idea behind the precautionary principle is that scientific uncertainty must not be a cloak for non-regulation. Preventive and remedial strategies should not wait till detrimental effects on the environment are conclusively proved by scientific evidence. In an experiment, scientist can gather information to confirm or disprove a hypothesis. Regulatory action is not like an experiment; it cannot afford to await certainty.

Acceptance of precautionary approach into our legal system was gradual but specific. When reclamation of wetlands was being made for the purpose of sitting an industrial centre, the Calcutta High Court prohibited further reclamation holding that benefits of wetlands to the society cannot be weighed on mathematical nicety.5 In order to save Taj Mahal from destruction the Supreme Court held that 'even one percent change' should not be taken when the industries in Taj Trapezium were asked to go outside the region or change over to harmless natural gas.6 While in the case of wetlands the Calcutta High Court adverted to, and based their orders, on the precautionary principle. Both the cases are illustrations to show that when there is some evidence of a likelihood of harm to the environment, the precautionary principle be applied. Changing over from coke/coal based industry to natural gas sounds the harbinger of a recognition of clean technology which is the effect of the precautionary approach.

The Supreme Court in Nayuduwas confronted with the difficulty in chosing between the decision of the Board, and the orders of the appellate authority. The decision not to grant NOC looked to be quite reasonable and environment friendly to the common man. Though it was constituted only of a Judge retired from the High CourtJudge, the appellate authority adduced evidence from an environmental scientist to prove that the industry could be run within the locality on conditions laid down by the Board. Obviously, the Supreme Court was not at all agreeable to the direction of the appellate authority to grant NOC and consent even with conditions. NEAA consisting of a Judge who had retired as the Chief Justice of India and of a team of technical experts is found as the most competent authority decide the questions. The Supreme Court wanted to adopt a precautionary approach even in reviewing the decisions. No doubt precautionary principle will have its sway not only in judicial review but also at the original level of environmental decision making. It is mainly addressed to the administrative process that helps to evolve environmentally viable development project and to support every effort for sustainable development.

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1. Stockholm Declaration 1972, Principle 6. "The discharge of toxic substances or of other substances and the release of heat, in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflicted upon ecosystems".

2._. Daniel Bodansky, "Scientific uncertainty and the precautionary principle", Environment, vol.33, September 1991, P.4.

3. Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 at 2721.

4. Supra n. 1.821.

5. People United For Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal. 215, P. 231.

6. M.C.Mehtav. Union of India, AIR 1997 SC 734 at 762.

John Deserved Acquittal

(A Comment on 1999 (2) KLT 699: John v. George Jacob)

(By M.R. Rajendran Nair, Advocate, Ernakulam)

What is the meaning of the expression "receipt of information" obtained in proviso (b) to S.138 of the Negotiable Instruments Act, 1881? Does it mean 'receipt of information in writing'? Does it exclude receipt of information by other modes? In the decision reported in 1999 (2) KLT 699 it is held that the expression 'receipt of information' in S.138 (b) of Negotiable Instrument Act means the 'receipt of information 'in writing' and not a mere oral information, though the words In writing' do not find mention in that provision in that context. The learned Judge declared this to be the legislative intention.

The relevant statutory provision reads as follows:-

"S.138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless -

(a) The cheque has been presented to the bank within a period of 6 months from the date of which the it is drawn or within the period of its validity, whichever earlier;

(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case maybe, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation -For the purpose of this section, "debt or other liability" means a legally enforceable debt or other liability".

S.138-142ofNegotiableInstrumentsAct, 1881, introduced by the Banking Public Financial Institutions and Negotiable Instruments (Amendment Act. 1988 (66 of 1988). created and defined a new offence. The conditions stipulated in provisos a, b and c are conditions precedent for initiating prosecution for an offence under S.138. Provision (b) stipulates that the payee or holder in due course must make a demand for the payment of the amount covered by the cheque by giving a notice in writing to the drawer of the cheque.

Giving of the notice in writing must be within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In this provision while dealing with the notice to the drawer of the cheque (accused) the legislature unequivocally states that the notice must be in writing. At the same time in respect of information by the payee or holder in due course of the cheque regarding return of the cheque as unpaid there is no stipulation that the information must be received in writing. Suppose, on the basis of information received orally or by other modes than in writing, the payee or holder in due course issues notice in writing to the drawer of the cheque making a demand for payment within 15 days of receipt of such information. Can it be said that such notice is insufficient? All that can be insisted on is that the complainant should prove positively that the notice in writing was issued within 15 days of the receipt of information. Failure of the complainant to prove this positively will result in acquittal of the accused. That will not be a 'disastrous consequence' as visualized in the reported Judgment.

It is submitted that certain fundamentals regarding interpretation of statutes especially in relation to penal provisions must be borne in mind in this context. Where, in a statutory provision express words are used in one limb and those words do not find a place in another limb the maxim of "expressio unis est exclusio alterius" applies.

Secondly penal provisions are to be construed strictly. In the instant case along with the words 'receipt of information' the words 'in writing' were also added under the cover of legislative intention. Here is a situation where the context clearly showed that the legislature wanted to exclude the words 'in writing' while dealing with 'receipt of information' by the payee or holder in due course. Therefore it was not permissible for the court to add the words 'in writing'. The information can be received orally, visually, and by any other mode of communication. What is relevant is whether demand for payment is made within 15 days of the receipt of information. Hence the word 'receipt' definitely means the act or an instance of receiving. Once it is shown that the information was received and no demand was made by giving a notice in writing within 15 days thereof, prosecution under S.138 cannot be initiated. The court is not entitled to read in words not used by the legislature and to prevent the acquittal of the accused. Penal provisions are to be construed strictly in favour of those who become liable.

A court has to interpret the law as it stands. It is the duty of the court to construe the provisions of an enactment according to the language used. The precise words of the relevant statutory enactment is to be applied and administered as accurately as possible. The courts must give first precedence to the plain meaning of the language used in the statute regardless of the consequences thereof. There is an equal duty to restrict the meaning of the general words, whenever it is found necessary to do so in order to carry out the legislative intention. Thus modification of the language of a statute is possible only under exceptional circumstances. The duty of the court is not to put a construction which seems to the court to be the best in the sense that it will work out with most justice or with the least inconvenience, but to put a construction which seems to the court to be the best in the sense that it is the nearest to the language of the legislature.

Moreover the courts are not to supply causes omissus. An interpretation which has the effect of adding certain words and clauses to an enactment should be avoided unless the section as it stands is meaningless or of doubtful meaning. 'Receipt of information' is wide enough to include all means of receipt of such information. To restrict the scope of 'receipt' to 'receipt in writing' is uncalled for and absolutely unnecessary. More so when the construction widens the ambit of the penal provisions preventing the acquittal of the accused.

In the case on hand, the complainant deposed that he knew of the dishonour of the cheque when he went to his Bank on 20.12.1989. And the Bank Manager also deposed that the cheque return memo was also prepared on 20.12.1989. Admittedly, the notice as stipulated in proviso (b) to S.138 of Negotiable Instruments Act was sent only on 9.1.1990; that is, beyond 15 days of the receipt of information by the complainant from the Bank regarding the return of the cheque as unpaid. Therefore, the condition precedent for applying S. 138 did not exist. John deserved acquittal.

A Critique of 1999 (2) KLT 699John V. George Jacob

(By P.S. Leela Krishnan, Advocate, Quilandy)

While interpreting Negotiable Instruments Act 1881 S.138 Proviso (b) in the above case Hon'ble Justice K.A. Mohammed Shafi is very much off the mark both in giving the correct dictionary meaning of the word 'receipt' and in its proper interpretation.

In short the revision centered round the interpretation given to proviso (b) which reads like this: (b) "the payee or the holder in due course of the cheque as the case may be makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of receipt of information by him from the Bank regarding the return of the Cheque as unpaid."

His Lordship after discussing the dictionary meaning of the word receipt says in para 11 "From the context, at which expression 'receipt of information used' in Proviso (b) to S.138.....it is clear that what the Legislature intended is a receipt of information in writing and not a mere oral information though the words in writing do not find in that proviso at the context." Further His Lordship unnecessarily fears "if notice as stipulated in Proviso (b) to S.138 is issued on wrong information regarding the dishonour of the cheque, it will lead to several disasterous consequences."

According to me the word 'receipt' is given an ungrammatical interpretation contrary to the natural construction of the sentence. The receipt of information means on receiving information. The receipt is used there as the noun form of receive and not as the independent noun receipt meaning of which His Lordship took pains in finding in the Concise Oxford Dictionary, Black's Law Dictionary etc. Receipt here means according to major dictionaries: act of receiving or being received, acknowledge receipt of a letter, an order etc. on receipt of news he left.

Maxwell on the Interpretation of Statutes says. The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning and second is that the phrases and sentences are to be construed according to the rules of grammar. The rule of construction is to intend theLegislature to have meant what they have actually expressed.....it is well accepted thatthe beliefs and assumptions of those who frame Act of Parliament cannot make the law.

So much so the meaning attributed to 'receipt' is out of context and ungrammatical. Receipt of information, there means only receiving information, immaterial whether oral or in black and white.

Here in the above case the payee got information of the dishonour of the Cheque on 20.12.1989 when he went to the Bank. But receives written information of the dishonour only on 6.1.1990 at his convenience. If that is what is meant by the Legislature, parties can take legal measures according to their convenience. Law does not allow such leisurely attitudes on the part of litigants. They must be vigil ant. In these circumstances I do not think 1999 (2) KLT 699 will remain good law for long.