A Stroke from Einstein’s Wisdom to Elucidate Reverse Burden in Cheque Bounce Cases

Einstein had famously said:

"If I had an hour to solve a problem, I'd spend 55 minutes thinking about the problem and 5 minutes thinking about solutions".

Explaining the above-mentioned quote, Supreme Court Justice Aravind Kumar in the judgment Rajesh Jain v. Ajay Singh (2023 (6) KLT 209 (SC)) stated,

“Exaggerated as it may sound, he is believed to have suggested that quality of the solution one generates is directly proportionate to one's ability to identify the problem. A well-defined problem often contains its own solution within it.”

It’s quite intriguing that the Hon’ble Judge has used creative way to emphasize the importance of problem-solving, specifically in the context of framing legal issues and allocating the burden of proof in cheque bounce cases involving Sections 138 and 139 of the Negotiable Instruments Act, 1881.

He simplified,-

“Drawing from Einstein's quote, if the issue had been properly framed after careful thought and application of judicial mind, and the onus correctly fixed, perhaps, the outcome at trial would have been very different and this litigation might not have travelled all the way up to this Court.”

The following paragraphs saw the application of the Einstein’s theory while being critical of the impugned High Court judgment. 

Initial framing of the question is critical

In legal cases, the initial framing of the legal question is critical. If the legal issue is not carefully defined, it can lead to erroneous judgments. This is analogous to the importance of understanding the problem before seeking a solution.

It is quoted as “When the initial framing of the question itself being erroneous, one cannot expect the outcome to be right.”

Incorrect fixation of onus on the complainant and improper understanding of Section 139

It is asserted that there was a fundamental error in the approach of the High Court when it placed the onus on the complainant instead of fixing it on the accused. The High Court failed to understand the nature of presumption in Section 139 when it emphasized that there is want of evidence on part of the complainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. High Court seems to have lost sight of the legal principle that once the presumption under Section 139 was activated it has the effect of shifting the evidential burden on the accused. This error led to a flawed judgment.

As an outcome, the impugned High Court judgment was set aside and the complaint under Section 138 of the Negotiable Instruments Act, 1881 preferred by the complainant was allowed. The respondent accused was convicted and fined twice the amount of the bounced cheque.

To summarise, the use of Einstein's quote served as a powerful metaphor for highlighting the importance of properly defining the legal issue and application of judicial mind in a legal case. It underscores that a well-defined legal issue often contains its own solution within it, and errors in this process can lead to erroneous judicial outcomes.

Short Edits by Ashly Harshad
Advocate, Supreme Court

Whether Royalty is Tax

(In memory of Late Sri.T.S.Krishnamoorthi Iyyer)

PREROGATIVE RIGHT V. PROPRIETARY RIGHT

(By MKS Menon, Advocate, Supreme Court)

A. OWNERSHIP ON SUBSOIL RIGHTS INCLUDING MINERALS:

i) In India after the introduction of various agrarian reform legislations, there is a wrong belief that the entire subsoil rights are vested in the Government. On the contrary there are so many exceptions to the said rule because presumption was applied purely on the basis of general postulation. Vesting of minerals depends on various land tenure enacted in different parts of the country and also on the language of different land reform legislations of different States. Eg.in Kerala Malabar has a different land tenures compared to Travancore-Cochin. One classic example is the ‘ryotwari settlements’ introduced in Madras and Andhra Pradesh during pre-independence era. These ryotwari lands were originally held to be excluded from the definition of ‘Estate’ under Article 31-A of the Constitution through judicial interpretations until those legislations were modified and included in the 9^th Schedule so as to save it from the rigour of Part-III of the Constitution. However, in sofar as the ownership on minerals are concerned, it is still a grey area because as already said vesting depends upon the language of various legislations. In most of the cases, the mines and minerals are included in the vesting section so as to show the completeness of the vesting up to the centre of the earth. Halsbury’s Laws of England and Broom’s Law dictionary makes it clear that an owner of the surface is the owner of everything beneath up to the centre of the earth.

ii) InThressiamma Jacob’s case reported in(2013 (3) KLT 275 (SC) = (2013) 9 SCC 725) larger bench of the Hon’ble Supreme Court (by Justices R.M.Lodha, J., Chelameshwar, J. and Madan B.Lokur, J.) held that owners of mineral bearing lands (quarries) in Malabar District in Kerala are owners of the minerals as well. (Author of this article successfully argued the case for the appellants in that matter). The wrong presumption that, ‘all minerals are vested in the State’, stands rebutted in this case by giving a complete answer to the question as to who is the owner of the subsoil right, in the absence of a specific vesting provision.

B. ‘ROYALTY’ & ‘DEAD RENT’ ARE INCIDENTS OF  PROPRIETARY RIGHT AND NOT A PREROGATIVE RIGHT:

i) The meaning of the expression “dead rent” and “royalty” and their connotation under various dictionaries:

Wharton’s “Law Lexicon”, Fourteenth Edition, at page 359, defines “dead rent” as:

“Dead Rent is rent payable on a mining lease in addition to a royalty, so called because it is payable whether the mine is being worked or not.”

The definition of “dead rent” given in Black’s “Law Dictionary”, Fifth Edition, at page 359, is as follows:

“Dead Rent in English law, a rent payable on a mining Lease in addition to a royalty, so called because it is payable although the mine may not be worked.

Jowitt’s “Dictionary of English Law”, Second Edition, at page 555, defines “dead rent” as “Dead Rent, a term sometimes used in mining leases in contradistinction to a royalty, to denote a fixed rent to be paid whether the mine is productive or not. See RENT.”

The same Dictionary states under the heading “Rent”, at page 1544 :

“When a mine, quarry, brick-works, or similar property is leased, the lessor usually reserves not only a fixed yearly rent but also a royalty or galeage rent, consisting of royalties (q.v.) varying with the quantity of minerals, bricks, etc., produced during each year. In this case the fixed rent is called a dead rent.”

“Royalty” is defined in Jowitt’s “Dictionary of English Law”, Second Edition, at page 1595, inter alia, as :

“Royalty, a payment reserved by the grantor of a patent, lease of a mine or similar right, and payable proportionately to the use made of the right by the grantee. It is usually a payment of money, but may be a payment in kind, that is, of part of the produce of the exercise of the right. See Rent.”

“Royalty” is defined in Wharton’s “Law Lexicon” Fourteenth Edition, at page 839, as :

“Royalty, payment to a patentee by agreement on every article made according to his patent; or to an author by a publisher on every copy of his book sold; or to the owner of minerals for the right of working the same on every ton or other weight raised”.

The definition of “royalty” given in Black’s “Law Dictionary”, Fifth Edition, at page 1195, is as follows :

“Royalty. Compensation for the use of property, usually copyrighted material or natural resources, expressed as a percentage of receipts from using the property or as an account per unit produced. A payment which is made to an author or composer by an assignee, licensee or copyright holder in respect of each copy of his work which is sold, or to an inventor in respect of each article sold under the patent. Royalty is share of product or profit reserved by owner for permitting another to use the property. In its broadest aspect, it is share of profit reserved by owner for permitting another the use of property....”

“In mining and oil operations, a share of the product or profit paid to the owner of the property.....”

In Halsbury’s “Laws of England”, Fourth Edition in the volume which deals with “Mines, Minerals and Quarries”, namely, Volume 31, it is stated in paragraph 224 as follows:

“224. Rents and royalties. An agreement for a lease usually contains stipulations as to the dead rents and other rents and royalties to be reserved by, and the covenants and provisions to be inserted in, the lease.....”

The topics of dead rent and royalties are dealt with in Halsbury’s “Laws of England” in the same volume under the sub-heading “Consideration”, the main heading being “Property demised; Consideration”. Paragraph 235 deals with “dead rent” and paragraph 236 with “royalties”. The relevant passages are as follows :

“235. Dead rent. It is usual in mining leases to reserve both a fixed annual rent (otherwise known as a ‘dead rent’, ‘minimum rent’ or ‘certain rent’) and royalties varying with the amount of minerals worked. The object of the fixed rent is to ensure that the lessee will work the mine; but it is sometimes ineffective for that purpose. Another function of the fixed rent is to ensure a definite minimum income to the lessor in respect of the demise.

If a fixed rent is reserved, it is payable until the expiration of the term even though the mine is not worked, or is exhausted during the currency of the term, or is not worth working, or is difficult or unprofitable to work owing to faults or accidents, or even if the demised seam proves to be non-existent.

“236. Royalties. A royalty, in the sense in which the word is used in connection with mining leases, is a payment to the lessor proportionate to the amount of the demised mineral worked within a specific period.”

In paragraph 238 of the same volume of Halsbury’s “Laws of England” it is stated :

“238. Covenant to pay rent and royalties. Nearly every mining lease contains a covenant by the lessee for payment of the specified rent and royalties.”

Rent is an integral part of the concept of a lease. It is the consideration moving from the lessee to the lessor for demise of the property to him. Section 105 of the Transfer of Property Act, 1982, contains the definitions of the terms “lease”, “lessor”, “lessee”, “premium” and “rent” and is as follows :

“105, Lease defined. A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.”

Lessor, lessee, premium and rent defined. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.”

In a mining lease, the consideration usually moving from the lessee to the lessor is the rent for the area leased (often called surface rent), dead rent along with Royalty. Since the mining lease confers upon the lessee the right not merely to enjoy the property as under an ordinary lease but also to extract minerals from the land and to appropriate them for his own use or benefit, in addition to the usual rent for the area demised, the lessee is required to pay a certain amount in respect of the minerals extracted proportionate to the quantity so extracted. Such payment is called “royalty”. It may, however, be that the mine is not worked properly so as not to yield enough return to the lessor in the shape of royalty. In order to ensure for the lessor a regular income, whether the mine is worked or not, a fixed amount is provided to be paid to him by the lessee. This is called “dead rent”.

“Dead rent” is calculated on the basis of the area leased while royalty is calculated on the quantity of minerals extracted or removed. Thus, while dead rent is a fixed return to the lessor, royalty is a return which varies with the quantity of minerals extracted or removed. Since dead rent and royalty are both a return to the lessor in respect of the area leased, looked at from one point of view dead rent can be described at the minimum guaranteed amount of royalty payable to the lessor but calculated on the basis of the area leased and not on the quantity of minerals extracted or removed. Stipulations providing for the lessee’s liability to pay surface rent, dead rent and royalty to the lessor are the usual covenants to be found in a mining lease.

C. RIGHT ON MINERALS EXERCISED BY THE BRITISH IN INDIA:

i) ‘SHARE IN THE PRODUCE’ IS PREROGATIVE RIGHT – (TAX- CESS ETC:)

Right exercised by the British in making an assessment under ryotwari settlements namely ‘share in the produce’ has been misinterpreted in many Courts. However various Government Orders pronounced at that time makes things more clear.

RESOLUTION – dated 19th March 1888, No.277.

In supersession of the existing Standing Order, the following is issued as Standing Order No.10:-

1. The State lays no claim to minerals -

|G.O.26th May, 1882, |(a) In estates held on sanads of permanent| |No.511 (Notifica-tion,|settlement | |paragraph 1). | | |G.O.28th October 1882|(b) In enfranchised inam lands No.1181 | | |G.O.28th April 1881 |(c) In religious service tenements No.861 |confirmed under the inam rules on perpetual service tenure. (d) In lands held on title – deeds, issued | | |under the waste land rules, prior to 7th | | |October, 1870, in which no reservation of | | |the right of the State to minerals is | | |made.|

2. The right of the State in minerals is limited in the following cases to a share in the produce of the minerals worked, commuted into a money payment, if thought necessary, by Government, in like manner with and in addition to the land assessment :-

(a)  In lands occupied for agricultural purposes under ryotwari pattas :

      (G.O. 23rd January 1881)

(b)In janmom lands in Malabar:

      (G.O.16th December1881 No.1384)

Persons intending to work minerals in those lands should give notice of their intention to the Collector of the district, specifying the lands in which they intend to carry on mining operation and should pay in two half-yearly instalments a special assessment for minerals in addition to the land assessment at the following rates:-

Per acre (`)………………

3. For mining for diamonds and other precious stones 15

4. For mining for coal, lime-stone or quarrying for building stone … (Such rates as may be fixed by the Board from time to time. The rates will be doubled if mining operations are carried on without giving notice to the Collector.

The special assessment will be entered in the patta granted for the land and collected under the provisions of Act II of 1834 Madras. No charge will be made for merely prospecting for minerals in patta lands if mines are not regularly worked. No remission will be granted in respect of any land rendered unfit for surface cultivation by the carrying on of mining operations. This rule does not of course affect in any way the right which all holders of lands on patta possess of digging wells in their lands and of disposing of the gravel and stones which may be thrown up in the course of such excavation.

The following observations assumes importance:                                                 

“….should pay in two half-yearly instalments a special assessment for minerals in addition to the land assessment at the following rates:-

Per acre (`) ………………

‘Royalty’ as already explained, is paid in accordance with the quantity of the mineral extracted and not as payment as a unit. It is always the claim of the proprietor/owner
of the mineral and not a prerogative right to assess it as revenue. This shows that the British never claimed the ownership on minerals. ‘Share in the produce’ found in all these Government orders of pre-independent era was not rent/royalty but only ‘revenue/tax on minerals. In Madathappu Ramaya v. The Secretary of State For India reported in ((1904) 14 MLJ 37) Privy Council clarified this aspect in so many words in para.30 as follows:

“30.The right of Government to assess land to land-revenue and to vary such assessment from time to time is not a right created or conferred by any statute, but, as stated in my judgment in Bell’s Case I.L.R.25 M.482 is a prerogative of the Crown according to the ancient and common law of India. The prerogative right consists in this, that the Crown can by an executive act determine and fix the ‘ Rajabhagam’ or King’s share in the produce of land and vary such share from time to time. This necessarily implies and pre-supposes that the occupant of the land has an interest in the land and is entitled to the occupant’s or ryot’s share of the produce as distinguished from the King’s share. The same idea is often expressed in the words that the Crown is entitled to the Melvaram in the land and the ryot to the Kudivaram. It therefore necessarily follows that the Crown cannot impose land-revenue upon lands in which, according to its own case, the person in occupancy has no title of interest or Kudivaram right. That such is the nature and extent of the prerogative right of the Crown is fully borne out by Regulation XXVI of 1802 and the provisions of (Madras) Act II of 1864. The definition of the term ‘ landholder’ in Section 1 of the Act (II of 1864) would be inapplicable to persons in possession of land merely as trespassers and to cases in which the land is not subject to the payment of revenue to Government. Section 2 which declares that the land, the buildings upon it and its products shall be regarded as the security for payment of the public revenue, necessarily implies that the occupant of the land who has to pay the revenue has a right in the land and its products. Section 3imposes upon the land-holder the obligation to pay the revenue due upon the land and Section 42 – which provides for the sale of the defaulting ryot’s, land free of encumbrances created by him and for payment to him of the balance of the sale-proceeds after deducting the arrears of revenue--clearly shows that he has a substantial interest in the land.”

In N.R.Reddy v. State of A.P.reported in ((1965) 2 Andh. LT 297) this has been highlightedby A.P.High Court and the same was approved by 7 Judges bench inIndia Cement Ltd. v. State of Tamilnadu reported in ((1990 (1) KLT OnLine 1002 (SC) = (1990 1 SCC 12). InIndia Cements case (supra) 7 Judges bench had appreciated this well-established principles of common law followed in India from time immemorial and held in para.20 as follows:

“20 ………………….in the earlier days, sovereign had in exercise of their prerogative right claimed a share in the produce of all cultivated land known as ‘Rajabhagam’ or by any of the various other names, and had fixed their share or its commuted money value from time to time, according to their will and pleasure……………..  The right of the sovereign to a share in the produce as observed by the Government of Madras in 1856 is not rent which consists of all surplus produce after paying the cost of cultivation and the profits of agricultural stock but revenue only which ought if possible to be so lightly assessed as to leave a surplus or rent to the occupier, when he in fact lets the land to others or retains it in his own hands…..”

In fact from time immemorial till the passing of Section 2 of the MMDR Act 1957, every State used to make an additional assessment on ‘minerals excavated as ‘Rajabhagam’ if found necessary as stated in the G.O.16th December 1881 No.1384 and not Royalty which is claimed in proportion to the quantity of the mineral excavated. This practice was abandoned once the MMDR Act 1957 was enacted and the entire field of legislation was taken over by the Central Government under Section 2.D.MINES AND MINERALS DEVELOPMENT AND REGULATION ACT 1957 :

MMRD Act 1957 was enacted by replacing the earlier enactments in order to bring the entire field of mineral development under the control of the Central Government.
Section 2 of the Act enable the Central Government to make such a declaration and all entries in Part -II of the 7^th Schedule was incorporated in such a manner so as to enable the Central Government to exercise its supremacy. Central Government made a declaration and now the entire field of mineral development and regulation is under the control of the Central Government and the State can only make rules under Section 15 of the MMRD Act 1957. In this scenario one question always remained as a perineal issue , i.e.

“Whether Section 2 declaration denude the right to exercise its prerogative right by the State Governments otherwise provided under Entry 50 of Part II of the 7^th Schedule of the Constitution?”

The controversy as to whether Section 2 declaration takes over the field of assessment of revenue as well, is an unresolved question still in limbo because even 7 Judges in India Cements case reported in (1990 (1) KLT OnLine 1002 (SC) = (1990) 1 SCC 12) could not resolve the controversy. The argument that imposition of ‘Cess’ on Royalty shall distend the Royalty and therefore is beyond the legislative competence of the State of Tamil Nadu in view of Section 9 of the MMRD Act 1957 was accepted in that case and it was held that the State cannot bring in a ‘cess’ on Royalty. Under Section 9 of the Act only the Central Government can enhance the Royalty and therefore the cess imposed by State of TN was beyond their competence; it was declared. However the question whether an imposition of prerogative right can balloon the proprietary right is still staring at our face. In para.34 Hon’ble Court held that Cess on Royalty cannot be justified under Entry 23 of List II and also that Cess cannot fall under Entry 49 of List II because it is not a tax ‘on land’ but ‘on the Royalty’ which is a payment for the user of land. Whether the above conclusion is correct or not is now under the consideration of 9 Judges.

E.  CONFLICT OF JUDGMENTS DEALING WITH THE QUESTION AS TO WHETHER ROYALTY IS TAX:

a) One after another, various Constitution Benches of the Hon’ble Supreme Court deliberated upon this subtle issue but still the same has not been resolved yet. After a 7 Judges bench of the Hon’ble Supreme Court headed by Chief Justice Gajengragadkar in HRS Murthy (1964 KLT OnLine 1327 (SC) = 1964) 6 SCR 666 =AIR 1965 SC 177)considered as to what is the impact of statutory declaration under Section 2 of Mines and Minerals (Development and Regulation) Act, 1957 whereby the entire field of development and
regulation of mines and minerals were occupied by Central Government, another 7 Judges bench in India Cements case reported in (1990 (1) KLT OnLine 1002 (SC) =
(1990) 1 SCC 12) headed by Chief Justice E.S.Venkataramaiah again considered the issue.
India Cements case (supra) refused to accept various conclusions in HRS Murthy (supra) (para.28) but the matter did not go before larger bench. In fact a passing reference to the judgment of Karnataka High Court in Laxminarayana Mining Co. reported in (1972 KLT OnLine 1202 (Karnt.) = AIR 1972  Mysore 299) is made there in para.27, even though in so many words the said judgment was not approved anywhere in the judgment. This created lot of confusion during the post ‘India Cements’ (supra) judgement. InLaxminnarayana (supra) Karnataka High Court states in para.15 of the said judgment that ‘Royalty is tax’ and also that Entry 50 of Part-II of the Constitution covers ‘Royalty’ as well. The following observation in para.15 assumes importance :

“15.  …………….To us it appears the expression ‘tax on mineral rights’ includes within its scope the royalty payable on minerals extracted. Mineral rights and mining activity carried on in exercise of those mineral rights appear to us to be indistinguishable in the above context. That appears to be the true intendment of the declaration contained in Section 2 of the Central Act and that it is so enacted in order to see that throughout the Indian Union, the rents, royalties and other taxes payable in respect of mining and minerals are uniform……”

The above conclusion in Laxminarayana (supra) is per incuriam because the said declaration was made in ignorance of Section 17-A (3) of the MMDR Act 1957.In India Cements case (supra) at the end of the para.27it appears that judgment in Laxminarayana (supra) is deemed to been approved, because the last sentence in para.27 of India Cements case (supra) states :

“27…………….At page 306 of the said report, it was held that Royalty under Section 9 of the Mines and Minerals Act was really a tax.”

The above observation had definitely influenced the decision making and final conclusion at para.34 where it stated that royalty is tax. However when we look at the ratio in India Cements case (supra) it could be seen that the levy of Tamil Nadu Government was set aside by the 7 Judge bench, not because it declared that ‘royalty is a tax’ but on two other grounds; i.e. (i)  Section 9 stands violated because by imposing Cess on Royalty, Royalty got distended and that power is vested only with the Central Government and not with the State Government and (ii) Cess on Royalty cannot be justified under Entry 49 because it is not a levy directly on land as a unit. The judgment remained so fluid and during the periods to come that had created enough turbulence causing trouble to the respective Governments in exercising its prerogative right covered by Entry 50 of the Part-II of the Constitution. There after in Kesoram reported in (2004 (1) KLT OnLine 1268 (SC) = (2004) 10 SCC 201 a 5 Judges Constitution Bench headed by Chief Justice Lahoti (As he then was) on a majority of 4:1, tried to salvage the situation by holding that the error inIndia Cements case (supra) was only a typographical error.

b) ‘India Cements case’ reported in (1990 (1) KLT OnLine 1002 (SC) = (1990) 1 SCC 12 (7 Judges bench) is a Classic example of an omission in dealing with the issue regarding legislative competence of the State Government to impose tax/cess on minerals. The said judgment failed to independently reproduce and interpret Section 2 of the Mines and Minerals Development and Regulation Act, 1957 untrammelled by the view of various earlier judgments and also failed to refer the matter to a larger bench having more than 7 Judges as soon as it found that they do not agree with the previous 7 Judges Bench judgment in HRS Murthy (supra). On the other hand it tried to travel through a different path altogether and deliberated upon the issue on a novel point so as to hold that ‘Cess’ on Royalty imposed by State of Tamil Nadu shall enhance the Royalty and hence is beyond the scope of delegated power under Section 15 of the 1957 Act. No doubt enhancement of royalty under Section 9 of the 1958 Act, is the prerogative of the Central Government alone and State cannot trench upon this filed at any cost. Still a reasonable doubt arises as to whether by exercising a prerogative right (provided Entry–54 of List-I R/W Entry 50 of List- II permits), can an incident of proprietary right (Royalty) get inflated? Most importantly, it is most important to remember that the conclusion was not that ‘Royalty is tax’ and therefore cess on royalty will amount to ‘tax on tax’ as that could be seen propounded in various discussions in social media emanating from the judgment inIndia Cements case (supra). It is respectfully submitted that, in that case India Cements case (supra) itself may have to be considered as a judgment rendered sub-silentio of Section 17-A(3) of MMDR Act 1957. The author do not subscribe to the opinion that India Cements case (supra) declared that  ‘Royalty is Tax’. The enactment made by the State of Tamil Nadu imposing cess on Royalty was held to be beyond legislative competence, in that case only because it shall result in violation of Section 9(3) of MMDR Act 1957 (para.34). The major pondering in the judgment revolved around Section 9(3) of the MMDR Act 1957 and Entry 49 of List II so as to justify the impost of ‘cess on royalty’ by State of Tamil Nadu. Even though Entry 49, Entry 50 as well as Entry 23 of List II of Seventh Schedule were superficially recalibrated in the light of ‘Federal checks and balances’ in the Constitution of India so as to find out whether the Tamil Nadu legislature exercised its wisdom wisely but finally, the whole judgment went in to a no-man’s territory where by Section 9 was brought in as a sheet anchor to lay its foundation in para.30 and 34 of the judgment. In paragraph 34 it is observed as follows:

“34.     In the aforesaid view of the matter, we are of the opinion that royalty is a tax and as such a cess on royalty being a tax on royalty, is beyond the competence of the State legislature because Section 9 of the Central Act covers the field and the State legislature is denuded of its competence under Entry 23 of List II. In any event, we are of the opinion that cess on Royalty cannot be sustained under Entry 49 of List II as being tax on land. Royalty on mineral rights is not tax on land but a payment for the user of land.”

From the above discussion it is clear that the usage ‘Royalty is tax’ appearing in paragraph 34 of the judgment is not a typographical error but an inadvertent error by omitting to contain the statutory scheme in incorporating Section 17-A(3) of the MMDR Act 1957 and also evident that the judgment has thoroughly influenced by the per incuriam judgment of the Karnataka High Court in Laxminarayana (supra).

c) No doubt in Kesoram’s case (supra) Constitution Bench of 5 Judges, held that the error in the earlier 7 Judges bench judgment was the outcome of a ‘typographical error’. However Hon’ble Mr.Justice Sinha (as he then was) descended with a word of caution that a 5 Judges bench cannot read down a 7 Judges bench judgment. In fact in Paragraph 71 of the majority judgment in Kesoram (supra) held as follows:

“71 We have clearly pointed out the said error, as we are fully convinced in that regard and feel ourselves obliged constitutionally, legally and morally to do so, lest the said error should cause any further harm to the trend of jurisprudential thought centering around the meaning of ‘royalty’. We hold that royalty is not tax. Royalty is paid to the owner of land who may be a private person and may not necessarily be State. A private person owning the land is entitled to charge royalty but not tax. The lessor receives royalty as his income and for the lessee the royalty paid is an expenditure incurred. Royalty cannot be tax. We declare that even in India Cement it was not the finding of the Court that royalty is a tax.
A statement caused by an apparent typographical or inadvertent errorin a judgment of the Court should not be misunderstood as declaration of such law by the Court. We also record, our express dissent with that part of the judgment in Mahalaxmi Fabric Mills Ltd. and Ors. which says (vide para.12 of SCC report) that there was no ‘typographical error’ in India Cement and that the said conclusion that royalty is a tax logically flew from the earlier paragraphs of the judgment.”

c) In fact the word of caution raised by Hon’ble Mr.Justice Sinha was not merely an aspect of judicial discipline. A thorough investigation into the ratio of the judgment in India Cements case (supra) will reveal that the 7 Judge Bench decision in India Cements (supra) definitely needed a post-mortem because it had ignored to settle its descend from the conclusions arrived at by the earlier bench of even number in HRS Murthy (supra) by referring the issue to a larger bench (para.28 of India Cements case).

d) Most importantly Section 17A(3) of the MMDR Act 1957 dealing with private ownership of minerals was omitted to be looked in to in India Cements case (supra) and as a result the meaning of ‘Royalty’ got mis-interpreted at least in para.27 due to the influence of the Karnataka High Court view in Laxminarayana (supra). It is seen written ‘Royalty is a tax’.  No doubt the next Constitution Bench in Kesoram (supra) tried to explain it by stating that the error was a ‘apparent typographical or inadvertent error’.It had also held that even a private person can claim Royalty and therefore it can never be a tax. It had rightly held that ‘Royalty’ is the proprietary right of the owner and that owner need not be the State. Section 17A(3) of the MMDR Act 1957, provides that if the State requires Minerals belonging to a private person, the State will have to pay Royalty to the lessor (private person) like any other lessee. Section 17-A(3) Reads as follows:

“17-A (3)-

Where in exercise of the powers conferred by sub-section (1A) or sub-section (2) the Central Government or the State Government, as the case may be, undertakes prospecting or mining operations in any area in which the minerals vest in a private person, it shall be liable, to pay prospecting fee, royalty, surface rent or dead rent, as the case may be, from time to time at the same rate at which it would have been payable under this Act if such prospecting or mining operations had been undertaken by a private person under prospecting licence or mining lease.”

Private Citizen cannot exercise ‘prerogative right’ to impose tax; means ‘Royalty’ under the MMDR Act, 1957 is not a ‘prerogative right’ but a ‘proprietary right enabling even a private person to claim royalty. Supreme Court inadvertently declared that ‘cess’ on Royalty being a ‘prerogative impost’ shall enhance the ‘Royalty’, without appreciating the fact that ‘Royalty’,  is a ‘proprietary right’ and not a ‘prerogative right’. Under Section 9, fixing maximum rate of Royalty no doubt is a prerogative vested in the Central Government as a statutory requirement aiming at development and regulation of mines and minerals. Therefore the finding in India Cements case (supra)  that due to the impost of cess on Royalty, ‘Royalty’ got distended/enhanced,required to be revisited again by making an introspection so as to find out whether Section 2 of the MMDR Act 1957 was correctly appreciated. Whether legislative field under Entry 50 of List -II which enabled the State to impose tax on mineral rights, rightly held to be denuded by a declaration under Section 2 of the MMDR Act, 1957. That exercise may not even need a declaration about the nature of Royalty so as to find out as to whether Royalty is tax or not.

e) In 2011, 3 Judges Bench headed by Chief Justice Kapadia in ‘Mineral Area Development Authority v. Steel Authority of India’ reported in (2011 (2) KLT Suppl.2 (SC) =
(2011) 4 SCC 450) apparently referred the matter to 9 Judge bench so as to iron out the creases in the previous pronouncements on this scorching issue. Most disappointing fact is that when the matter was referred to 9 Judges Bench, the question “Whether Royalty is tax’ also stands referred to 9 Judges, despite the fact that Section 17A(3) is loud and clear that ‘Royalty can never be a Tax’. Section 17 A (3) of the MMDR Act 1957 specifically provides, that if the State or Central Government needs minerals belonging to a private person, State/Central Government shall pay Royalty to the said private person. As already stated a private person cannot exercise prerogative right to impose tax. Therefore Royalty can only be a ‘proprietary right’ and can never be a ‘prerogative right’ as held in Satyanaranyana’s case (supra). Most importantly, Section 17-A(3) of MMDR Act 1957 is not under challenge in any of these proceedings. Consequence is that there are various cases pending in the Supreme Court pertaining to various imposts including service tax, an impost by the Central Government itself, thinking that if Royalty is declared as Tax then service tax cannot be levied. All these cases are pending before the Hon’ble Supreme Court waiting for the 9 Judge bench decision which requires urgent attention. In fact hundreds of cases can be disposed off with a single stroke and delay may not hamper justice delivery system. Justice in that case is done not only to private persons but also to the State as well.

f) However the question whether the Royalty can be collected by the State as a prerogative right was left open to be decided until the controversy referred to 9 Judge bench in (2011 (2) KLT Suppl.2 (SC) = (2011) 4 SCC 450)is finally resolved. In Thressiamma Jacob (supra), the State was claiming the ‘Royalty’ not as a tax in exercise of it’s prerogative right but as the owner of the minerals but the larger bench turned down the plea of the State. In fact the order in Mineral Area Development Authority v. Steel Authority of India’ (2011 (2) KLT Suppl.2 (SC) = (2011) 4 SCC 450) is delaying dispensation of justice, because 9 learned Judges are yet to deliberate upon a point directly covered by the statutory provision i.e. Section 17-A(3) of the MMDR Act 1957 and all cases touching upon this issue has to wait until a declaration comes from 9 Judges bench. The constitutional right of the petitioners in those cases for property under Article 300-A stands suspended sine die, despite the fact that due process of law demands a decision based on Section 17-A(3) at the earliest. The author strongly suggest that all those matters touching on the point as to whether ‘Royalty is tax ’ can be disposed of on the basis of the statutory provision Section 17-A(3) of the MMDR Act 1957.

CONCLUSION :

The finding inIndia Cements case (supra) that ‘CESS ON ROYALTY ENHANCE THE ROYALTY’ is a declaration made in sub-silentio of Section 17A(3) of the MMRD Act, 1957. Royalty being a proprietary right (Section 17A(3)) can be claimed by an owner of the Minerals alone (can be a private person or the State),where as cess/tax can be imposed only by the State in exercise of the prerogative right vested in it.

TO BE COMMANDED NOT DEMANDED !

(K. Ramakumar, Senior Advocate, High Court of Kerala)

With the advent of the Advocates Act 1961, there is one common bar for the whole country. Section 30 provides that every advocate whose name is entered in the State roll shall be entitled as of right to practice throughout India in all courts including the Supreme Court. All advocates therefore form one common class entitled to appear and plead in any court in any part of the country. Nevertheless there is an entirely anomalous provision, Section 16 which creates two classes of advocates namely senior advocates and other advocates. Section 23(5) of the Act provides that Senior Advocates shall have pre audience over other advocates. This means that among the common class of advocates, a privileged class is artificially created which prima facie is violative of Articles 14 and 19 of the Constitution of India. In Pattali Makkal Katchi v. A.Mayilerumperumal & Ors. reported in (2022 (2) KLT OnLine 1061 (SC) = (2023) 7 SCC 481), this is what the Supreme Court said:-

“Equal laws would have to be applied in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. The classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should regarded as invalid. The whole doctrine of classification is based on discrimination without reason and discrimination with reason and on the well-known fact that the circumstances which govern one set of persons or objects may not necessarily be the same as those governing another set of persons or objects so that the question of unequal treatment does not really arise as between persons governed by different conditions and different sets of circumstances.”

The court further adds;

“…Those who are similarly circumstanced are entitled to an equal treatment. Equality is amongst equals. Classification is therefore, to be founded on substantial differences which distinguish persons grouped together from those left out of the groups and such differential attributes must bear a just and rational relation to the object sought to be achieved.”

Can there be more equals and more privileged among the same class namely advocates of India? It is humbly submitted there is nothing that can justify an irrational discrimination among persons falling in the same class. I am not oblivious of the fact that the Apex Court has in passing upheld the validity of the classification. It is only on the slender ground that the designation is not uncontrolled, unguided or unchannelised and possibility of misuse cannot be a ground for holding a provision of the statute to be constitutionally fragile. (See Indira Jaising v. Supreme Court of India & Ors. reported in (2017 (4) KLT 632 (SC) = (2017) 9 SCC 766).

The highest court in Indira Jaising, it is humbly and respectfully submitted, has not considered whether the sub classification among a distinct class performing similar functions, duties and responsibilities can be justified. The issue therefore is yet open for further re-visitation. The designation of advocates into senior and others is part of the colonial vestige which we have inherited from the British or thrust upon us. Those who were known as sergeants–at–law, later came to be known as Queens’ Counsel/Kings’ Counsel. The process of appointment of Queen’s Counsel in the United Kingdom had drawn flak as “Propagation of coterie” and shrouded in arcanum. The practice significantly still exists mostly only in Common Wealth Countries like Australia, Nigeria, Singapore etc. In Sri Lanka they are called President’s counsel.

Why is it that in no other professions like Medicine, Engineering, Architecture etc., etc., there are no senior doctors, senior engineers or senior architects? What is so very special to the profession of law alone to devise a discriminatory dichotomy?

Section 16(2) of the Advocates Act provides that an advocate may with his consent be designated if the High Court is of the opinion that by virtue of his ability, standing at the bar, or special knowledge of law he is deserving of such distinction. Strangely, possession of good character, and high ethical standards indubitably essential for any lawyer worth the name are not mentioned in the Section, which however, finds a place only in the explanation to one of the Rules framed by the High Court of Kerala purportedly under Section 16(2) of the Advocates Act, 1961. A mere look at Section 16 makes it irrefragable that the Section does not confer on any High Court any rule making power.

‘Character’ is defined as “that moral predisposition or habit, or aggregate of ethical qualities, which is believed to attach to a person, on the strength of the common opinion and report concerning him” (Black’s Law Dictionary 6th Edition).

Seniority, like respect has to be commanded and not demanded. The Rules framed by the High Court of Kerala for Designation of Senior Advocates, 2000 contain a provision enabling an advocate to seek the designation on application highlighting specialization in any field of law making a reference to any important matter in which he has appeared, participation in seminars, conferences relating to law etc., etc., Is it permissible, particularly on parameters of doubtful validity as the Apex Court has now desired re-jigging of the extant Rules?

Seeking seniority prima facie appears to be incongruous with the high standards expected of a worthy senior and has been frowned upon by our own High Court and in more pellucid manner by the Orissa High Court.

The Supreme Court has this to say on designation. (Indira Jaising v. Supreme Court of India & Ors. reported in (2017 (4) KLT 632 (SC) = (2017) 9 SCC 766).

“…There has to be a full and effective consideration of the criteria prescribed, namely ability, standing at the bar, special knowledge or experience in law in the light of materials which necessarily have to be ascertainable and verifiable facts.”

The court has administered a word of caution.

“….. The credentials of every advocate who seeks to be designated as a senior advocate or whom the Full Court suo motu decides to confer the honour must be subject to an utmost strict process of scrutiny leaving no scope for any doubt or dissatisfaction in the matter.”

The quality and merit of a lawyer are best assessed by the litigants, the lawyers’ clerks and of course other lawyers. What is the machinery for the High Court either under the rules or otherwise to find out whether there had been an unethical conduct on the part of the lawyer who is proposed to be designated? A successful legal practitioner will be always artful while appearing in court. It is not the length of his limousine but the depth of his learning that earns admiration and respect to a lawyer.

Please remember in one of the foremost High Courts of the Country, the High Court of Delhi, two reputed Senior Advocates, (One of them counsel to the former Prime Minister, to boot) were stripped of their designation for unethical conduct.

The Supreme Court in Second Indira Jaising reported in (2023 (3) KLT 744 (SC) = (2023) 8 SCC 1) reiterated the criteria as follows:-

“The designation of Senior Advocates in India is a privilege awarded as a mark of excellence to advocates who have distinguished themselves and have made a significant contribution to the development of the legal profession. It identifies advocates whose standing and achievements would justify an expectation on the part of the clients, the judiciary, and the public, they can provide outstanding services as advocates in the best interest of the administration of justice.”

In the meantime, the High Court of Orissa in a batch of cases (Banshidhar Baug v. Orissa High Court & Ors. (2021 (3) KLT OnLine 1043 (Ori.) = W.P.(C) Nos.17009 of 2019) has declared the procedure followed by that court irregular and one of the rules ultra vires. Even so, in regard to the five wrongly designated seniors, the court said “we do not want to disgrace them by withdrawing the designation as there is no fault on their part in the entire exercise”.

That court thought aloud on who should be a designated senior.

“(I) He is an Advocate with towering personality. He is suave and gentle. His disposition towards the Court and his fellow counsels is impressive. He is known for his ready wit. Ask him any question on any law, he has an answer with reasoning. His standing in the Bar is remarkable. He is a social factor in the society, he lives. He is humble, dignified, kind and a person with sobriety. He would however not come to stand in a queue to file an application for being designated as “Senior Advocate”. Such a person being an asset to the profession, suo motu power should be reserved to be exercised for such a person only and such power should be given to the High Courts, as in our understanding, such power has not been given to the High Courts in the guidelines/norms framed in Indira Jaising case. (underlining supplied)

(II) Designation of “Senior Advocate” is a coveted position from the point of view of the bar and the society. There should not be crowd in such a coveted position. Every Tom, Dick and Harry should not be brought to this position by whatever means permissible. Certain percentage of the total strength of a particular Bar should only be allowed to enter into this coveted position.”

Canvassing for seniority by self-certification should therefore, be immediately ended not merely mended.

Let us therefore, strive to retrieve the glory of the legal profession back to its lustrous past.

THERE IS A NEED FOR JUDICIAL INTERVENTION FOR THE ILLEGAL COLLECTION OF FEES FOR THE ISSUANCE, CANCELLATION AND IMPOSING FINES FOR THE REVALIDATION OF DEMAND DRAFTS

(By H. Sajeer, Court Officer, Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

Why is a Demand Draft masked with a validity period of three months? Why does the drawer have to pay a specific sum for its issue and its revalidation? Whether the regulation issued by the Reserve Bank of India has an overriding effect over a statute? Whether the Demand Draft is qualified to be a Negotiable Instrument under Section 13(1) of the NI Act, are some queries to be answered here.

The term Demand Draft is neither defined nor explained in the Negotiable Instruments Act, of 1881.

A Demand Draft is a method used by an individual or a bank to transfer money from one bank account to another. Demand Drafts differ a lot from cheques.It does not require the signature of the account holder for encashment. Demand Drafts are only payable on demand and can only be deposited in the bank. It is usually issued or taken when a large amount of money is in question or between parties who are unknown to each other and lack trust. The name of the person to whom the Demand Draft is to be paid is mentioned on the DD. The person or customer who requests the Demand Draft is called the Drawer or Applicant.While the bank that pays the money is called the drawee. The name of the person or party to whom the demand draft is to be paid is mentioned on the DD. The payee is the person or party who receives the amount through the demand draft.

It is evident that to obtain a Demand Draft, the issuer of the Demand Draft (usually a bank) collects the entire amount of the draft to ensure that the funds are available before issuing the Draft.So, it is a prior condition for availing a demand draft that the drawer should deposit the bank an amount specified in the demand draft with the drawee bank after accepting the amount specified in the demand draft along with a specified charge as the fee for issuance of the Demand Draft. As and when the DD is issued the role of the bank becomes a trustee and its liability will only be discharged after due payment. It is illegal and impermissible that the drawee bank can’t withhold the amount for any reason of fraud, misrepresentation, etc. It is the duty fastened upon the drawee bank to duly pay the amount to the payee as what is intended by the drawer.

If a court directed a petitioner to produce DD of a specific sum as the costs for condoning the delay, because of the non-filing of the complaint within the statutory time limit.Here the petitioner has to pay the costs by way of DD and to produce it before the court. It was the registry to hand over the DD to the opposite party. However, the opposite party couldn’t appear in the court to accept the DD due to some unforeseen events. If he appeared three months after and claimed the DD amount, the registry has no option but to give the outdated DD to the Opposite party. Though he may be the payee and the funds are already with the bank, the banking authorities may not honour the DD on the reason of invalidation.They insist on the presence of the drawer for its revalidation.  The drawer shall appear again before the bank and pay the fee again for its revalidation, though the funds have been with the bank for a long time. Hence the bank is looting the public money in three-foldways. First, by accepting a specific fee for the issuance of the  DD by accepting the full amount as interest interest-free deposit.  Secondly, the bank will utilise the amount deposited as such by the drawer by allowing loans to its stakeholders. Thereby, they could earn interest. Thirdly, they are again accepting a fee like a fine in the guise of revalidating the Demand Draft and thereby again plundering the drawer, though the bank is obliged to maintain the amount as a trustee.  Section 85 A clearly states that the liability of the bank will expire only on the due payment of the amount to the payee.

The Negotiable Instruments Act does not define the term Demand Draft. But in Section 85A of Chapter VII, under the heading “Discharge from Liability on Notes, Bills, and Cheques,” named a word as“drafts”. It says that,

“Where any draft, that is, an order to pay money, drawn by one office of a bank upon another office of the same bank for a sum of money payable to order on demand, purports to be endorsed by or on behalf of the payee, the bank is discharged by payment in due course.”

It clearly stated that a draft is an order to pay money by one bank to another office of the same bank payable on demand that purports to be endorsed by the payee or on behalf of the payee. Here, the only course of action for the bank is to pay the amount through its other branch to the payee, as what the drawee endorsed on behalf of the drawer. The bank was only discharged from liability after payment in due course.

Section 85A has not specified a limitation for the validity of the Draft. It only deals with the discharge mode of the bank where was received the sum from the drawer. Ona plain reading of this Section, it can be seen that the bank is only a trustee of the amount deposited by the drawer and the bank cannot impose a fine on its cancellation or revalidation or reissuance.

Then what is the authority of the banks to collect such illegal fees is that, on November 4, 2011, the Chief General Manager of the Reserve Bank of India issued a letter to all the Chief Executive Officers and Chairmen of the Scheduled Commercial Banks and Local Area Banks (RBI/2011-12/251 DBOD.AML BC.No.47/14.01.001/2011-12) by stating that,

“It has been brought to the notice of the Reserve Bank by the Government of India that some persons are taking undue advantage of the said practice of banks of making payment of cheques, drafts, pay orders, and banker’s cheques presented within six months from the date of the instrument as these instruments are being circulated in the market like cash for six months. The Reserve Bank is satisfied that, in the public interest and the interest of banking policy, it is necessary to reduce the period within which cheques, drafts, pay orders, and banker’s cheques are presented for payment from six months to three months from the date of such instruments. Accordingly, in the exercise of the powers conferred by Section 35A of the Banking Regulation Act, 1949, the Reserve Bank hereby directs that, with effect from April 1, 2012, banks should not make payment of cheques, drafts, pay orders, or banker’s cheques bearing that date or any subsequent date if they are presented beyond the period of three months from the date of such instrument.

Banks should ensure strict compliance with these directions and notify the holders of such instruments of the change in practice by printing or stamping on the check leaves, drafts, pay orders, and banker’s cheques issued on or after April 1, 2012, and by issuing suitable instructions for presentment within three months from the date of the instrument”.

The above-said directive of the Reserve Bank of India is on the guise of curtailment of fraudulent circulation of cheques, pay orders, and bankers’ cheques through the market-like currency. If we agree with the direction on some points the cheques can be endorsed and circulated like a currency to another person. But a Demand draft can’t be endorsed by the drawer because the endorsement is purely the domain of the drawee. So the Demand Draft is a water-tight compartment only to be released as what it endorsed by the drawee. So the Reserve Bank’s circular by clubbing the Demand draft along with other negotiable instruments is per se erroneous and unsustainable.

We know that, unlike other negotiable instruments, the demand draft is a pre-deposited document,that only can be used as the medium of a transaction between two banks. The condition precedent is that the drawer must deposit the amount as specified in the Demand Draft in his bank. The bank shall charge a fee for its issuance, according to the quantum of the amount deposited in the bank. The fee may vary from bank to bank, and it includes the value of the draft,i.e., 1.50 to 4 per cent per thousand with Service Tax. The minimum amount for obtaining a demand draft is 25 rupees. For cancellation and revalidation, the same amount is to be levied by the bank. So cancellation and revalidation are the penal provisions adopted by the banks according to their whims and fancies.

It is further noted that the question of revalidation of the Demand Draft may arise after three months, as per the regulation of the RBI. Within this period, the amount deposited by the Drawer should be with the bank. They can freely use and collect interest from the said amount without even paying a single penny to the drawer. The drawer has no right to claim interest on the amount deposited by him, as a condition precedent for obtaining a demand draft, at the time of cancellation or revalidation. Instead, he has to pay a penal amount like that it was an offence to deposit a huge sum in his bank to obtain a Demand Draft. At the same time, the bank, though a trustee of the amount, circulates the amount as loans and advances to its customers.

It is pertinent to note that for revalidation of the demand draft, the drawer should pay an amount equal to the amount paid for doing a demand draft. So, the bank could obtain triple unlawful enrichment from the drawer. It is nothing but an“illegal loot legally”.

We all know that the nomenclature of the demand draft is different from other negotiable instruments. The demand draft is a prepaid document only showing that a specified amount was deposited in the bank, and the payee can ensure its accuracy. The Demand Draft will not bounce due to insufficient funds since the payment has already been made by the drawer. As a result, it is more secure and comes with lesser risk. It is only payable to the name of the payee which was endorsed on it and is payable on its proper presentment. It means the payee can immediately be paid the specified amount and cannot be stopped from payment once he presents it to the bank as endorsed. It does not even require a signature for the transfer of funds.

In the guise of renewal, revalidation and cancellation the banks are looting the public at large and also plundering the ordinary people. They also impose fines for not possessing a minimum balance, SMS fees and ATM insufficient funds in Automated Teller Machines. What authority did a bank have to impose fines on customers for the reason of non-maintaining a minimum balance? No legislation says that a citizen shall maintain a minimum account in his bank account otherwise he will be penalised. The banks are not courts or judicial authorities to impose fines on their stakeholders. Hence a judicial intervention is highly necessary to chain up these licensed looting of public money by the banks.

Hence, Judicial intervention is highly necessary in this regard to remove the limitation period for the validity of the Demand Draft and to declare the letter issued by the Reserve Bank of India is per se illegal, null and void and against the mandate of Section 85A of N.I. Act.

A Tribute to the Stalwart – By Juniors of Advocate P.B.Menon

 The legal fraternity in Palakkad is privileged to have the oldest active lawyer in India and perhaps in the world practicing amongst us. Sri P.B. Menon popularly known as Senior, who has attained the pinnacle  of his career, has turned 97 years old and is still in active practice in trial courts. He has completed 73 years of active practice. On July 18, 2023, his name was formally recorded in the India book of records for having the longest number of years of active practice. Sri Pachuveetil Balasubramania Menon was born in Pallasena Village of Palakkad District, Kerala, then part of the Madras presidency to Sri.Koman Nair and Smt. Kalyanikuttyamma. He has three brothers and three sisters. He completed his matriculation from P.M.G. School Palakkad, intermediate, and graduation from Government Victoria College, Palakkad.

 He was enrolled as an Advocate on July 18th 1950  and has set up his practise under the tutelage of legendary Sri.Kuttikrishnan Menon, then Advocate General of Madras in the High Court of Madras. Later in 1952, he moved to Palakkad, his native place, where he started practising under the Late Sri.Rama Krishna Iyer, a leading criminal lawyer of the time. Later, as per the wishes of his parents, he got married to Late Smt.Malathi Menon, daughter of Late Sri C. Madhavan Nair, a doyen of the Palakkad bar, and started practising under him. He has two daughters and one son.

His passion and unwavering commitment to the legal profession are unparalleled, and his desire and quench for perfection and punctuality in his work are unmatched beyond words. Probably one of the hardest things in the life of an aspiring Advocate is to make him a role model.

 He is the crown jewel of the Palakkad District Bar Association, he is our pride and other’s envy. We, as the members of the Palakkad District Bar Association, are blessed to have a maestro like him on our bar roll and, of course, fortunate to inherit his legacy, a very rare feat. He being the light tower of this profession, may the almighty shower blessings abundantly on him so that we could progress usher  in the shade and the light shed by him. We, on behalf of the Advocate Fraternity in Palakkad, bow down before our senior the veteran of legal fraternity with lots of love, respect, and prayers. We thank him for being our invaluable resource person with his huge library donated to the Palakkad District Bar Association. He is a perfect combination of brevity, analytical skills, and dedication. To express him in one word, brevity is his soul. His office is always open to all members of the advocate fraternity for consultation and clarification. We take this opportunity to thank KLT for publishing his insightful and thought-provoking articles on various subjects related to law. We expect him to enrich the treasure trove by penning down more and more visionary articles.