A Verdict that Disappointed Consumers

(By Kauser Edappagath, Advocate, Kannur)

Not quite long ago I did utilize the precious pages of this venerable Law Weekly to comment on the repetitive act of the High Court in interfering in the proceedings of the Consumer Forum, constituted under the Consumer Protection Act, 1986. (Jurisdiction of the High Court over the Consumer Fora - 2000 (1) KLT 17) Now, again I am constrained to drop few lines criticizing honourably about a recent verdict of the High Court of Kerala which made the telephone consumers also out side the purview of the Consumer Courts. The impugned judgment was delivered by the High Court of Kerala in General Manager v. Consumer Disputes Redressal Forum, (2000 (2) KLT 195) where in it was held that the dispute comes under S.7B of the Indian Telegraph Act is to be dealt with under the provisions of arbitration clause contained in the Telegraph Act and the Forum lacks jurisdiction to entertain and try such complaint. About the jurisdiction of the High Court to sit on judgment over the Consumer Forum, I am not commenting anything here since it was already covered in length in my article mentioned supra. But I must say that the ruling rendered in 2000 (2) KLT 195 is a decision per incuriam and has no binding force.

There is no doubt as to the proposition that the facility of telephone by the telecommunication department to a consumer, become a service as defined under the Consumer Protection Act. In Union of India v. Nilesh Agarwal, the National Commission held that the facility of a telephone is service under the Act and a subscriber is a consumer of telephone and is entitled to seek relief from the Consumer Forum under the Consumer Protection Act. It was misinterpreting S.3 of the Consumer Protection Act, the Hon'ble Division Bench came to the conclusion that the consumer forums lack jurisdiction to try the disputes come within the purview of S.7Bofthe Indian Telegraph Act. S.3 of the Consumer Protection Act lays down that the provisions of the said Act are in addition to and not in derogation of the provisions of any other law for the time being in force. The phrase "in addition to" and "not in derogation of used in S. 3 of the Act leaves no scope for doubt that the provisions of the two Acts, namely the Indian Telegraph Act and the Consumer Protection Act are complementary and supplementary to each other. The Consumer Protection Act gives the consumer an additional remedy besides those, which may be available under the existing laws. The fact that the dispute involving excess billing or meter reading can be settled under S.7B of the Indian Telegraph Act does not therefore oust the consumers from seeking relief under the Consumer Protection Act. Evidently the Parliament had considered it expedient to do so for the better protection of the interest of the consumers and for the expeditious settlement of consumer disputes. If the Legislature in its wisdom has, in terms, granted additional rights and remedies to the class of consumers, constituted by the Act, it is not for the court by way of interpretation to cut and abridge the scope thereof. These rights and remedies are not to be blackened or hamstrung either by the statutory provisions of an earlier law or by contractual agreement of the parties. The somewhat precious recently created rights and remedies of the class of consumers are not to be cut down by construction, unless expressly mandated by a non obstante clause as rightly held in Jagadamba Rice Mills v. Union of India (1991 CPC 360 Haryana). Recently the Supreme Court of India in Fair Air Engineers (P) Ltd. v. N.K. Mody (1996 (111) CPJ 1) correctly interpreted the S.3 and held, "Accordingly, it must be held that the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that S.3 envisages that the provisions of the Act are in addition to and not in derogation of any other law in force. It would therefore be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which would be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure". Unfortunately, the Division Bench of the Kerala High Court did not notice the interpretation given to S.3 in its proper perspective by the Apex Court.

The question whether the consumer forum has jurisdiction to entertain and try the complaint regarding excessive billing in view of the specific provision of S. 7B in the Indian Telegraph Act had come for consideration before the National Commission for more than one occasion and it decided in favour of the consumer. In Commercial Officer, Office of Telecomm. Dist. Manager, Patna v. Bihar State Wear Housing Corporation (91 (1) CPR 142) and in Union of India v. Nilesh Agarwal (1991 (1) CPR 348) the National Commission consistently held that the remedy by way of arbitration under the Telegraph Act does not preclude an aggrieved consumer from seeking redressal before Forum under the Consumer Protection Act. The Lucknow Bench of the Allahabad High Court also took the same view in Union of India and Ors. v. Mrs. S. Prakash & Ors. (1991 (1) CPR 307). Further, most importantly, the Supreme Court of India in a very recent ruling in Skypark Couriers Ltd v. Tata Chemicals Ltd (AIR 2000 SC 2008 B) held "even if there exist an arbitration clause in an agreement and complaint is made by the consumer, in relation to certain deficiency in service, then the existence of an arbitration clause will not be a bar to the entertainment of complaint by the redressal agency, constituted under the Consumer Protection Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force." The remedy by way of arbitration under S. 7B of the Indian Telegraph Act is a statutory remedy while the remedy provided in the agreement involved in the above-cited decision of the Supreme Court is a contractual one. But an arbitration clause embodied in an agreement between the parties could be enforced and redressed only under the provisions of Arbitration Act, 1940 or Arbitration and Conciliation Act, 1996, in which case it gets statutory color. In the larger lights of S. 3, the remaining provisions of the Act provides additional rights, remedies, forums and executing process for the consumer disputes irrespective of the arbitration clause, whether contractual or statutory.

Regarding exclusion of jurisdiction of the Civil Court when a remedy is provided in the special statute, the Apex Court in two land mark judgments (Dlutlla Bai v. Slate ofM.P. and Ors. AIR 1969 SC 78 and Premier Automobiles v. K.S. Wadekar AIR 1975 SC 2238) held that if the dispute in question is one arising out of a right or liability under the general common law and not under the special enactment, the jurisdiction of the Civil Court is only an alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy. Here the dispute in question regarding excess billing is one arising out of a right or liability under the general common law under the head of "tort". The Indian Telegraph Act does not create a new right or liability not existing at common law by way of S.7B. In the circumstances, relying on the dictum laid down by the Supreme Court in the above said rulings, a consumer has a right of election to invoke either the jurisdiction of the Consumer Forum or the Arbitration clause in S.7B of the Indian Telegraph Act.

Quite unfortunately, the principles as laid down by the Supreme Court in Fair Air Engineers, Sky Park Couriers Ltd., Dulla Bai and Premier Automobiles (supra) were neither brought to the notice of the Division Bench of the Kerala High Court nor were it considered. The decisions of the Supreme Court in the above mentioned cases are law declared under Art.141 of the Constitution of India. It is well settled that even the obiter of the Supreme Court is entitled to the highest respect. Therefore the decision of the Division Bench in General Manager v. Consumer Dispute Redressal Forum (supra) which was rendered in ignorance of a binding authority is a judgment per incuriam and has no binding force. In CBSE v. CDRF (1993 (2) KLT 917) the Kerala High Court held that when the National Commission has taken a view on a particular point, the High Court cannot go into the correctness of the said view in another case where similar point arises and that such power is conferred only on the Supreme Court under the Act. As such the Division Bench of the Kerala High Court erred in taking a different view than that of the National Commission.

Instead of relying on the rulings mentioned above, which has got direct bearing on the issue, the Division Bench relied on certain rulings which has no relevance on the issue. The Division Bench mainly relied on the decision of the Supreme Court in Thiruvallur Transport Corporation v. Consumer Protection Council (AIR 1995 SC 1384). That was a case where the Supreme Court was considering the question whether claim for compensation arising out of motor vehicle can be adjudicated by the consumer forum and whether injured in case of motor accident can be considered as a consumer. It was held that compensation for injury sustained in fatal accident arising out of use of motor vehicles shall be claimed only before the Tribunal set up for that purpose by a special statute namely Motor Vehicles Act. The said decision can be justified on the ground that the Motor Vehicles Act expressly oust the jurisdiction of any other Courts or Tribunals. No such ouster clause is there in the Indian Telegraph Act. Even if the principle laid down by the Supreme Court in Thiruvallur Transports (supra) case that general law must yield to the special law is applied here, the Telegraph Act must yield to Consumer Act since the Telegraph Act deals with all aspects of telephone system and apparatus, whereas the Consumer Protection Act deals only with the deficiency in service, if any, by the telecom department or its employees. The other rulings relied on by the Division Bench such as Raag Rang & Anr. v. General Manager, Delhi Telephones (1997 (5) SCC 345) and M.L. Jaggi v. Mahanagar Telephones Nigam Ltd. (JT 1996 (1) SC 215) only say that the dispute regarding the payment of telephone bill is to be dealt with under the provisions of the arbitration clause contained in the Telegraph Act. Those rulings do not say that the Civil Court or Consumer Forum has no jurisdiction to try such disputes. In Srikant K. Jituri v. Corporation of the City of Belgaum (1994 (6) SCC 572) the suit was held as not maintainable in view of the specific bar in the special statute. In Telecom Dist. Manager, Goa v. Demoo & Co. (AIR 1996 SC 1545) the Supreme Court was only considering the question whether the dispute shall be referred only when there is reference by the court.

Moreover, the remedy under the Consumer Protection Act is more effective and speedy than under S.7B of the Indian Telegraph Act. In practice it is seen that the arbitration is only a formal exercise. In most of the cases the subscriber aggrieved by excess billing receives stereotyped letter stating that on investigation no defect in the metering equipment could be found and that the amount shown in the bill is correct. Arbitration proceedings initiated under S.7B do not yield any positive results as far as the subscriber is concerned as the arbitrator is an officer from the Telecom Department. The fact remains that the Consumer Courts are the only forums where the consumers can approach to seek redressed their grievance against the Telephone Department.

Various Consumer Forums of the Kerala State has already started dismissing complaints against Telecom Department as not maintainable in view of the Division Bench's ruling. But I must say that the said judgment is not a binding precedent for the various reasons stated above and hence the lower courts need not follow it. Needless to say, the State Commissions as well as District Forums are bound to follow the dictum laid down by the National Commission in Nilesh Agarwal & Bihhar State Wear Housing Corporation (supra) that the consumer forums retains jurisdiction to decide disputes against Telecom Department irrespective of the remedy by way of arbitration under the Indian Telegraph Act.

"Interruption En-Route the Destination" of Criminal Cases -

A Study of Sharma's Cases / And II

(By T.P. Aboo, Advocate, Manjeri)

"Justice ordinarily demands that every case should reach its destination, not interrupted en-route" - observed Krishna Iyer, J. in Balwant Singh & Ors. v. State of Bihar (1997 SC (Crl.) 633). The Code of Criminal Procedure 1973 provides for premature termination of criminal proceedings before the culminator into judgments under various sections, i.e., S.227 (Discharge of the accused by the court, S.239 (Discharge by the Magistrate in warrant trial), 245 (discharge in private complaints), 256 (Non-appearance or death of complainant), 257 (withdrawal by complainant), 258 (Power of the court to stop proceedings in summons cases), 320 (compounding by the parties), 321 (withdrawal of cases by Public Prosecutor).

Apart from these provisions of Cr.P.C. the Apex Court has through its rulings issued guidelines and directions for putting an end to the criminal cases or close prosecution evidence under some special circumstances.

The important decisions on this point are "Common Cause cases (1996 (4) SCC 33), Common Cause cases (1996 (6) SCC 775), Rajdeo Sharma 's case I (AIR 1996 SC 3281), Rajdeo Sharma's case II (2000(1) KLT463).

The line of approach made by the Supreme Court in Common Cause cases was different from that of Sharma's cases. In Common Cause cases direction was for the disposal of the cases by acquittal or discharge, whereas in Rajdeo Sharma's cases the direction was to close prosecution evidence and proceed to the next step. In direction No. 1 in Sharma's case the Apex Court directed the criminal courts to close the prosecution evidence on completion of 2 years "from the date of recording the plea of the accused on charges framed in cases punishable with imprisonment not exceeding seven years and in direction No. Ill, to close evidence on completion of 3 years from the date of recording the plea of the accused "on charges framed" in cases punishable with imprisonment for a period exceeding 7 years.

2.  It is submitted that these two directions are applicable to warrant case and the cases exclusively triable by the Sessions Court - Not to summons cases as the Supreme Court used the words "recording the plea of the accused on charges framed". The procedure for the trial of warrant cases is dealt with in Chapter 19 Cr.P.C. S. 239 empower the Magistrate to discharge the accused while S.240 gives the power to frame the charge S.228 Cr.P.C. deals with framing the charge by a Court of Session.

Chapter 20 of Cr.P.C. deals with trial of summons cases. S.251 provides that the particulars of the offences shall be stated to the accused and he shall be asked whether he pleads guilty or has any defence to make but it shall be not necessary to frame a formal charge. "Recording plea on particulars stated" in a summons cases is different from "recording plea on charges framed" in warrant cases, "Sharma's case" excluding summons cases from its application.

3.    In a decision reported in Sahadevan v. Excise Inspector (1999 (1) KLT 687) Sankaranarayanan, J. applied this decision in a summons case. The Hon'ble Court was

dealing with S. 55 of the Abkari Act (before the amendment of 1997). All the offences under the old Abkari Act were summons cases as the punishment prescribed was not for imprisonment exceeding 2 years. In Shaji v. State (2001 (1) KLT 733) Rajendra Babu, J. also did not make any difference between "plea recorded on particulars stated" and "plea recorded on charges framed though the Apex Court deliberately excluded the former from the purview of the directions in Sharma's case. In Shaji v. State (2001 (1) KLT 733) at Page 737 para 6 Rajendra Babu, J. observed "The direction number one in Raj Deo Sharma's case, 1999 (1) KLT 173 (SC) was to proceed to the next step in respect of the cases punishable with imprisonment for a period of not exceeding seven years if a period of two years had elapsed since the recording of the plea of the accused". The Hon'ble Judge left out the words "charges framed" in the above sentence which it is submitted is "the part and parcel" of the Supreme Court direction. For offences punishable below 7 years this word is very important to decide whether the offence is a warrant case or a summons case.

4.  The exceptions granted to these directions are exhaustive. The discretion not apply the dictum is "for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution." The exception is fettered with 4 qualifications. So it is submitted the discretion can be exercised in "rarest of rare case" - The term coined by the apex court in the case of awarding capital punishment Balwant Singh v. State of Punjab (AIR 1976 SC 2196 S. 354 (3) Cr. P.C.).

5.  The controversy regarding the starting point of "Rider Clause" granted in Sharma's case II is now settled. In Shaji v. State (2001 (1) KLT 733), Rajendra Babu, J. ruled that the starting point of the period of extension of 1 year started from 8.10.1998. Period of suspension of the operation of judgment from 14.5.1999 would stand excluded in computing the additional period of 1 year.

6.  The term "stands excluded" is a bone of contention. Some argue that what is suspended is the operation of the judgment, so that period is to be subtracted from 1 year, as the courts were free to conduct trial without the control of the judgment whereas others argue that the term "stands excluded" in other exceptions - absence of Presiding Officers and Prosecutors etc. - is used in the opposite sense- so that period is to be added with one year. The meaning of the terms must be understood with reference to the context, and in that sense the period of suspension of the judgment is to be subtracted from 1 year. There is no benefit of the "Rider Clause" now available as the period is already over by 8.10.99 minus suspension period of the operation of the judgment.

7.  Whether an order passed on the directions of "Sharma's case" in interlocutory or not and whether the prohibition of S. 397(2) Cr.P.C. will bar a revision is another dispute. In Udaya Kumar v. Superintendent of Police (2002 (1) KLT 212). Padmanabhan Nair, J. dismissed all the petitions, on the ground that all those cases were interlocutory and no revision would stand as the disposal of the cases would not have the effect of terminating the proceedings. As the Hon'ble Judge was deciding the case on particular facts it is submitted that this case is no authority on the point. In cases where no witness is examined an order as per Sharma 's case will terminate the proceedings. The Honourable High Court was dealing with S. 19(3) of PC Act, 1988. In V.C. Shukla v. C.B.I, the Apex Court (1980 SCC (Cr.) 695) had made a distinction between the Special Court Act and Cr.P.C. As the objective of the Special Court Act was "quickest despatch and speediest disposal" and it covered only specified number of criminals the Court was of opinion that, framing charge might be interlocutory under the Act, and not so under the Code. Further an order on Sharma 's case is a ruling of great moment flowing from Art. 21 of the Constitution affecting the life and liberty of the accused and as per the decisions of the Apex Court, such order cannot be interlocutory. The Supreme Court in recent decision has considered S. 317 Cr.P.C. - disposing personal attendance of the accused - in revision". In Shaji v. State (2001 (1) KLT 733) the Hon'ble Kerala High Court entertained the revision, Crl. R.P. 88/2000 on an order under Sharma's case. So it is submitted the revisional jurisdiction of the High Court and Sessions Court can be exercised on an order passed in Sharma's case.

8.  In Ramachandra Rao v. State of Karnataka (2002 (6) SCALE 516) the correctness of all Common Cause cases I and II and Sharma's case I and II was challenged and the matter is now before the Constitution Bench. In Udaya Kumar's case, 2002 (2) KLT 212 the prayer for the stay was not allowed as dictum of Sharma's case is still binding on subordinate courts under Art. 131 of the Constitution. In Sheonandan Pawan v. State of Bihar (AIR 1987 SC 877) the question whether a Constitution Bench can entertain review petition unless the judgment sought to be reviewed was set aside, was the point for consideration. The majority proceeded on the assumption that it was set aside.

9.  In Udaya Kumar v. Supdt. of Police (2002 (1) KLT 212), Padmanabhan Nair, J. observed that "In Raj Deo Sharma Case it is not stated that for getting extension, prosecution shall file written application. The Hon'ble Court proceeded further and ruled that oral request was sufficient and the court could act even on a petition filed by the accused. In Shaji v. State (2001 (1) KLT 733) the Single Bench ruling was to the effect that the court can extend one year on a request by the prosecution. Hence the distinction between granting extension for very "exceptional reasons" and granting extension of one year as per "Rider Clause" must be clear. In the former the court is acting suo-moto; prosecution or the accused are not prevented from moving the court for the relief. But the subordinate courts must exercise the discretion on the date of the expiry of 2 years or 3 years as the case may be, otherwise if the accused filed a petition after 1 year there cannot be extension retrospectively. So far as the Rider Clause is concerned Sharma's case mandates that, "additional period of one year can be claimed" by the prosecutor. It is submitted that, in this case claiming by the prosecutor is mandatory and in this respect there is conflict of opinion between two Hon'ble Single Judges of the High Court, in Shaji's case (2001 (l)KLT733)and UdayaKumar Case (2002(1) KLT 212).

10. Exception No. IV In Sharma's case is that if the inability for completing the prosecution evidence within the aforesaid period is attributive to the "conduct" of the accused in "protracting" the trial no court is obliged to close the prosecution evidence". Here the apex court has used two words "conduct" and "protracting the trial". For availing of the exception the "conduct" of the accused must be the cause of "protracting" the case.  "Conduct" of a person is formed by the continuous and consistent behaviour, single instance does not constitute "conduct". It is question of fact. In this case the subordinate courts are given discretion in the facts and circumstances of the case, either to apply or not apply the discretion. When the accused or the counsel is absent on some occasions and petition is filed to excuse the absence is accepted by the court," the "conduct" of the accused is not the cause for "protracting" the trial. It is the circumstances wherein steps are taken under Ss. 83 and 84 of Cr.P.C. or non-co-operation of the counsel as reported in 2001 (2) KLT 159 (SC) which attract this exception.

All subordinate courts are bound to apply the direction in Sharma's case No. I and II in "letter and spirit". Systematic or infrastructural inconvenience is no excuse as the Supreme Court has considered that point in the main appeal and rejected it. The Supreme Court in a subsequent decision (2001 (2) KLT 159 SC), compared this excuse to the proverbial complaint of "workers blaming the tool". It is a cardinal principle of interpretation that the plain meaning of a provision should be followed when it is clear and un-ambigous. This is true in the construction of statutes as well as understanding the decision of the High Courts and Supreme Court of India (AIR 1979 SC Maxwell on Interpretation of Statutes page 28).

Proceedings Due to Under Valuation Under S.45b

of the Kerala Stamp Act, 1959

Whether Applicable to Sale Deeds?

(By S.H. Jayakesan, Law Secretariat, Thiruvananthapuram)

Retaining of instruments (Sale Deeds) by the Registering Officers for want of proper stamp duty and dealing such sale deeds under S.45B of the Kerala Stamp Act, 1959 (Act 17 of 1959) (for short "the Act") has become a common phenomenon in the State. In that connection, in 2002 (1) KLT 18, (Kerala Buildings Forum v. State of Kerala), it was ruled that the Registering Officer/District Registrar has got power to retain the original document (Sale Deed) after registration, till the adjudication of the reference under S.45B(1) of the Act is over and its compliance done. Such a conclusion was arrived at on a construction of the provisions contained in S.45B, read with Ss.33 and 34 of the Act. But in 2002 (1) KLT 806 (Periyar Real Estates v. State of Kerala) overruling the above said decision it was held by the Division Bench that even if there is a dispute as to the stamp duty payable on the instrument subject to registration, after registration of the instrument, the registering authority is not entitled to retain possession of the original document under S.45B of the Kerala Stamp Act, 1959. According to the latter decision, if S.45B of the Act is construed as empowering the Registering Officer to retain the original instrument, it would be repugnant to S.61(2) of the Registration Act, 1908 (Central Act, XVI of 1908).

But when we go through Ss.28A and 45A of the Act, it appears that as far as a Sale Deed (which does not bear sufficient stamp at the time of presentation for registration) is concerned, S.45B of the Act has no application and S.45A would be the relevant provision to deal with a sale deed bearing stamp of insufficient amount.

A comparative study of Ss.45A and 45B of the Act would be helpful to explain the position.

Sub-s.(1) of S.45B of the Act provides that - "If the Registering Officer, while registering any instrument, transferring any property, has reason to believe that the value of the property or the consideration, as the case may be, has not been truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the value or consideration, as the case may be, and the proper duty payable thereon" (*S.45B was inserted in the Act by way of an amendment vide S.6 of Act 17 of 1967).

But such a wide and general power conferred on a Registering Officer under sub-s. (1) of S.45B of the Act seems to be curtailed as far as it relates to a sale deed, in view of the provision contained in S.45 A of the Act, which was inserted in the Act on a subsequent occassion, i.e., by the Kerala Finance Act, 1994.*

Sub-s.(1) of S.45A of the Act provides that- "Notwithstanding anything contained in this Act, the Registering Officer shall, while registering an instrument transferring anv land. other than an instrument of partition, settlement or gift among the members of a family, chargeable with duty verify whether the value of the land or the consideration set forth in the instrument is the fair value of that land". Sub-s.(2) of S.45A of the Act provides that- "Where on such verification, the Registering Officer is satisfied that the value of the land or consideration set forth in the instrument is not less than the fair value of that land, he shall duly register the instrument". Sub-s.(3) of S.45A of the Act further provides that- "Where on verification, the Registering Officer finds that the value of the land or the consideration set forth in the instrument is less than the fair value of the land fixed under S.28A, he shall, by order, direct the payment of proper stamp duty on the fair value of the land fixed under S.28A within a period of seven days from the date of the order and on payment of the deficit stamp duty, the instrument shall be duly registered." (S.28A was also inserted in the Act in the year 1994).

On a meticulous examination of S.45 A and 45B of the Act, it should be seen that, though under sub-s.(1) of the S.45B a general power has been conferred on a Registering Officer to deal with any instrument, transferring any property, the Legislature with the insertion of a special provision viz., S.45A has excluded Sale Deeds from the purview of S.45B. In other words, by the usage of the words, "Notwithstanding anything contained in this Act..." and "other than...." appearing in sub-s.(1) of S.45A of the Act, the Legislature has engrafted a special provision in the Act, to deal with instruments (which squarely cover sale deeds), which do not bear sufficient stamp as per 'fair value' fixed under S.28A of the Act. So S.45 A of the Act contains a prerequisite condition for registering a sale deed, i.e., payment of stamp duty as per fair value fixed under S.28A of the Act. Therefore, in the case of a sale deed there arises no question of fixing proper stamp duty on a subsequent occasion (i.e., after effecting registration) following the procedure laid down under S.45B of the Act. While registering a Sale Deed, one of the questions to be considered by the Registering Officer (in addition to the aspects to be looked into as per the Registration Act, 1908) is whether the sale deed has been properly valued as provided under S.45A of the Act. The instrument has to be registered, if the value of the land or the consideration set forth in the sale deed is not less than the fair value of that land fixed under S.28A of the Act. Otherwise, the Registering Officer has to resort to the course of action provided under sub-s.(3) of S.45 A of the Act and not the one provided under S.45B of the Act. If a sale deed was also to be referred to the Collector under sub-s.(1) of S.45B, then the Legislature would not have incorporated the concept of "fair value" under S.28A and the special provision of S.45A in the Act. Therefore, S.45A of the Act would be the relevant provision applicable to Sale Deeds, which are insufficiently stamped at the time of presentation for registration. In such circumstances, the maxim - "Generadia specialibus non derogant" (i.e., General words do not derogate from special) would apply and in the result, a Registering Officer may not be able to refer a sale deed after registration to the Collector. Because, as stated earlier, as far as a Sale Deed is concerned, the procedure prescribed under S.45A of the Act are special in nature and all such procedures are founded on the "fair value" to be fixed under S.28 A of the Act.

In this context, another aspect which may require consideration is whether under sub-s.(3) of S.45 A of the Act, a Registering Officer can refuse to register a Sale Deed presented for registration, on the ground that it is not duly stamped as per fair value fixed under S.28A of the Act, and whether such a course would be repugnant to the Registration Act, 1908 or not. It may be noted that sub-s.(1) of S.71 of the Registration Act, 1908 empowers a Registering Officer to refuse registration of a document, for reasons to be recorded. Therefore, in view of the said provision in the Registration Act, a Registering Officer can refuse to register a Sale Deed which does not bear stamp duty as per fair value, as provided under sub-s.(3) of S.45A of the Kerala Stamp Act and insist for compliance of the demand for proper stamp duty as per fair value fixed under S.28 A of the Act.

*Note:     1.     Section 45-A inserted by the Kerala Finance Act, 1994 published in K.G. Ex. No. 784 dated 29-7-1994. Earlier section 45-A was renumbered as "45B" and new section 45A inserted by Act 14 of 1988. Later section 45 A was omitted by Act 16of 1991 with effect from 11-1-1991.

 2.     Section 45B was inserted by section 6 of Act 17 of 1967 (15-6-1967).

(Source :- Gangadharan on Stamp Court Fees and Suits Valuation in Kerala -A.G. Publications).

Chetan Dass V. Kamala Devi: Where Lies the Doctrine

of Irretrievable Breakdown of Marriage?

(By Mathew M. Chacko, Kottayam)

"If they desire that they be two, who is the law to insist that they be one'" (Chinnappa ReddyJ., Reynold Rajamani v. Union of India, (1982) 2 SCC 474, para.14)

The doctrine of irretrievable breakdown of marriage had over the past two decades crept into the Indian family law jurisprudence. It is not a ground for divorce recognized by legislative enactment, but one which the judiciary had hesitatingly accepted, as a valid ground. However, its position had not yet been firmly affirmed by the Supreme Court of India. It was in such a legal milieu that the judgment in Chetan Dass v. Kamala Devi, (2001) 4 SCC 250, rejected the very jurisprudential basis of the doctrine throwing up the question - is the irretrievable breakdown of marriage a valid ground for obtaining divorce (in India)?

The doctrine of irretrievable breakdown of marriage has as its logical basis the idea that it is not the business of the law to perpetuate what does not in reality exist.

".........the essence of marriage is a sharing of common life, a sharing of all the happiness

that life has to offer and all the misery that has to be faced in life, an experience of the joy that comes from enjoying, in common, things of the matter and of the spirit and from showering love and affection on one offspring. Living together is a symbol of all such sharing in all its aspects. Living apart is a symbol indicating the negation of such sharing. It is indicative of the disruption of the essence of marriage - 'breakdown' - and if it continues for a fairly long period, it would indicate the destruction of the essence of marriage - 'irretrievable breakdown'." (71st Report of the Law Commission of India on the Hindu Marriage Act, 1955 at para 6.5)

The history of all matrimonial laws would show that conservative attitudes have initially influenced the grounds on which divorce is granted (Pathak, J., Reynold Rajamani v. Union of India, (1982) 2 SCC 474, para.4). However, a conspectus of judicial dicta would show, that a more liberal approach is the order of the day (Ibid). The liberal or pragmatic approach recognizes the need for the happiness of the adult parties involved in a marriage. This had dictated a paradigm shift in the theoretical basis of judicial policy with regard to grant of divorce - from one based on fault to one based on acceptance of reality.

The judiciary has recognized that irretrievable breakdown of marriage is a ground for divorce (Saroj Rani v. Sudershan Kumar, (1984) 4 SCC 90 at para.9; Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226 at para.23). However, such recognition has been enveloped by the hesitation to tread in areas felt to be the rightful domain of the Legislature. Therefore, the scope of this doctrine has not been emphatically judicially pronounced.

In Chanderkala Trivedi v. Dr. S.R Trivedi ((1993) 4 SCC 232), the Apex Court of the land was faced with a fact situation that resembled a movie plot. Differences arose between a husband and a wife after nine years of marriage. Allegations of sexual promiscuity have been exchanged between husband and wife. The husband allegedly enjoyed an intimate relationship with a lady doctor, whereas the wife is alleged to have partook in undesirable associations with young boys. The Supreme Court noted that the marriage seems to be dead for all practical purposes and granted a decree of divorce on the ground that the marriage has irretrievably broken down.

The fact situation in Ashok Hurra v. Rupa Bipin Zaveri, (1997) 4 SCC 226 is also one of a marital breakdown as evidenced by the husband's remarriage. Here, the Court noted that revival of the marriage is not possible. The breakdown was also evidenced by a prolonged period of separation. The two Judge Bench of the Apex Court had no hesitation in finding that there is "no useful purpose in served in prolonging the agony any further....." (Ibid, at para.23). The Court utilised its powers under Art. 142 of the Constitution of India to grant divorce on the ground that there has been an irretrievable breakdown of marriage.

Though no clear judicial exposition is available, the general trend of the Court can be ascertained from these two judgments. Where allegations and counter allegations of deceit and treachery spring forth from the members of the former marital unit and where this breakdown is evidenced by a period of separation, the Courts would have no hesitation to grant divorce on the ground that the marriage has irretrievably broken down. However, the decision in Chetan Dass v. Kamala Devi (supra n.2), seems to rewrite this cautiously worded jurisprudence in the interest of "regulating matrimonial norms for making a well knit, healthy........society." (Ibid at para.14).

The appellant husband had previously filed for divorce and withdrawn it to attempt revival of an ailing marriage. The wife has left the company of the husband for the second time in their troubled marital life, alleging adultery. The trial court has found that the husband did share an adulterous relationship with one lady. The husband contends that his wife was used to a much higher standard of living. He further alleges that her activities including a false allegation of adultery amounts to mental cruelty.

The marriage ceremony took place in 1976. Throughout the last quarter of a century, the couple has spent slightly less than two years together. The majority of this period has been spent in costly litigation, laying the blame for the breakdown of the marriage at each other's feet. The facts do not allow any argument on the question of whether the marriage has broken down. The only contention raised before the Supreme Court is that the marriage has irretrievably broken down and that divorce should be granted on that ground. The last sentinel of justice in the land replied thusly:-

"Matrimonial matters are matters of delicate human and emotional relationship. It demands trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute, framed keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individual as well as in broader perspective, for regulating matrimonial norms for making of a well knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to playing the society in general. Therefore it would not be appropriate to apply any submission of 'irretrievably broken marriage' as a straightjacket formula for grant of relief of divorce. This aspect has to be considered in the background of the other facts and circumstances of the case. (Ibid)."

The facts and circumstances of the case involve two years of marital union and almost a quarter of century of separation. It also brought in its sweep a court room drama, which has lasted over a decade and a half. Allegations of economic insufficiency, adultery and mental cruelty have been exchanged. Is it not ironic that the Supreme Court of India found that this marriage though broken (Ibid, at para.9) was retrievable? Or was it the position of the Court that once the marriage has irretrievably broken, the courts of law would attempt to impose the "mutual trust, regard, respect, love and affection" (supra n.l 1) unless the straightjacket formulas embodied in the various divorce laws are satisfied?

The Court went ahead and assessed the marriage, admitted it was broken, lay the blame at the feet of the husband and declared that law thereby precluded the husband from recognition of the fact that the marital union was broken. In the name of protection of the "institution of marriage" (supra n.2 at para.19), the Supreme Court rewrote half a century of jurisprudential progression and declared its faith in the fault theory of divorce. Consequently, the Court seems to have dumped the doctrine of irretrievable breakdown of marriage into the historical dustbin of rejected ideas. Can it be retrieved?

Comment on 2002 (1) KLT 384 - A Writing Per in Curiam

(By P. V. Asha, Advocate, Ernakulam)

The controversy regarding the nature of penalty as to barring of increment with cumulative effect is not yet over? It appears so, from the Article published in 2002 (2) KLT Journal 6.

Much water has flown since the pronouncement of the judgment in Kulwant Singh Gill v. State of Punjab reported in 1991 Supp (1) SCC 504 = JT 1990 (4) SC 70.

Subsequent to the judgment in Kulwant Singh's case, the question whether withholding of increments with cumulative effect is a minor penalty or major penalty has been the subject matter in a number of cases. An elaborate discussion on this issue referring to case law and relevant provisions in the service rules of various States is available in the Article of Mr. Justice K.A. Abdul Gafoor, published in 1993 (1) KLT Journal 8.

The 1st reported decision of the Kerala High Court on the subject is M. Devaki v. State reported in 1994 (2) KLJ 808. It was held that the Supreme Court judgment considering the provisions contained in Punjab Civil Service (Discipline and Appeal) Rules was not applicable in the context of KCS (CC & A) rules. The same question came up before a Division Bench in State of Kerala v. Rangarajan reported in 1997 (2) KLT 121. Punishment of barring of increment awarded to an official governed by Kerala Police Departmental Inquiries (Punishment and Appeal) Rules, 1958, without conducting full fledged inquiry and without furnishing inquiry report was under challenge. The finding of the learned Single Judge relying on Kulwant Singh's case was reversed with the following observation.

"3. xxx We are unable to accept this view for the reason that in the KPDPI & A Rules it is specifically stated that withholding of increment or promotion is a minor penalty, xxx The said view was taken on the basis of Punjab Civil Service (Discipline & Appeal) Rules, 1970".

Yet another Division Bench considered the question in Balagopal v. State of Kerala reported in 2000 (1) KLT120 wherein the appellant's contention that the penalty of withholding of increment with cumulative effect cannot be imposed without conducting a fulfledged inquiry, was repelled after an elaborate consideration of the provisions contained in the KCS (CC & A) Rules, 1960. The observations in paras.5 &6ofthejudgmentatpage 124 answer the comment of the author.

In Pushkaran v. State of Kerala (2002 (1) KLT 384) penalty imposed under the Kerala Police Departmental Inquiries Punishment & Appeal Rules, 1958 was under challenge. The provisions relevant in the KPDIP & A Rules, 1958 are Rules 6,12,15 and 17.

"15. Penalties:-(1) The following penalties may for good and sufficient reasons and as provided under these rules, be imposed upon members of the service, namely :-

xxx                         xxx                         xxx                         xxx

(g)   withholding of increments or promotion including stoppage at an efficiency bar.

(h) Recovery from pay of the whole or part of any pecuniary loss caused to State Government or to a local authority by negligence or breach of orders, or recovery from pay to the extent necessary of the monetary value equivalent to the amount of increments ordered to be withheld where such an order cannot be given effect to.

Explanation:-In case of stoppage of increments ordered to be withheld with cumulative effect the monetary value equivalent to three times the amount of increments ordered to be withheld may be recovered".                                                                    (emphasis supplied)

R.12 provides for the summary procedure to be followed while awarding punishments specified in clause (a) to (i) of sub-r. 1 of R.15. R.6 provides for a preliminary inquiry, framing of charges, oral inquiry etc. to be conducted, for imposition of penalties other than those specified in clauses (a) to (i) of R.15. R.17 deals with the procedure to be followed before imposing penalties under clause (j) to (m) of sub-r. (1) of R.15 of KPDIP & A Rules.

A provision similar to the explanation under clause (g) of KPDIP & A Rules, 1958 or to the Note (1) under clause (iii) of R.11 of KCS (CC & A) Rules or R.31 of Part IKSR, which applies to those governed by KPDIP & A Rules as well as to those governed by KCS (CC & A) Rules, 1960 is not available for those governed by Punjab Civil Service (Discipline & Appeal) Rules, 1970. Therefore the factual and legal matrix involved in Pushkaran v. State of Kerala and Kalwant Singh's case stand on different footing.

In this background can there be any scope for a controversy regarding the nature of the penalty viz. barring of increment with or without cumulative effect?