Comment on 2002 (1) KLT 384

(By U. Balagangadharan, Advocate, Palakkad)

In the domain of disciplinary proceedings different sets of procedures are mandated for the imposition of major penalty and minor penalties. Minor penalty is ordinarily imposed after a summary procedure. While for inflicting major penalties a detailed regular enquiry in consonance with the principle of natural justice is necessary. Whether a given penalty is a major or minor one is no more a moot issue because it is either delineated in the Statutory Rules or is settled by Judge made laws.

In a recent case reported as Pushkaran v. State of Kerala, 2002 (1) KLT 384, the Single Bench of the Hon'ble High Court of Kerala found that withholding of two increments with cumulative effect is only a minor penalty and it does not amount to reduction to a lower rank. It was a case where the petitioner was Constable who was found guilty of releasing a bootlegger without registering any case. Upon conducting the enquiry, the Constable was imposed with the penalty of withdrawing two increments with cumulative effect. It was argued before the Hon'ble Court inter alia that the punishment amounts to reduction to a lower rank which is a major penalty as per the Kerala Police Departmental Inquiries (Punishment & Appeal) Rules, 1958 and regular enquiry ought to have been conducted. Hon'ble Court found that it was only a withholding of increments with cumulative effect and was not a punishment of reduction to lower rank and the consequences of it would be to deprive some monetary impact while the delinquent continues in the same rank. Therefore, the Hon'ble Court rejected the plea of the petitioner to follow procedure for imposition of major penalty was rejected. This was one of the findings in the judgment.

In this back drop, it is useful to reminiscent a decision rendered by the Hon'ble Supreme Court as early as in 1990 itself in an identical set of facts and held in unambiguous terms that withholding of two increments with cumulative effect would amount to imposition of major penalty and detailed regular enquiry was mandatory such circumstances. It was case (reported as Kulwant Singh Gill v. Stale of Punjab, JT 1990 (4) 70) of an Inspector in Food and Supplies Department of Slate of Punjab where lie was awarded the penalty of stoppage of two increments with cumulative effect under the provisions of Punjab Civil Services (Punishment and Appeal) Rules, 1970. Under the provisions of the aforesaid Rules, "withholding of increments of pay" is graded as minor penalty and "reduction to a lower stage in the time scale of pay" as major penalty. Therefore, the question arose whether stoppage of two increments with cumulative effect is a major penalty? The Apex Court found that withholding increments of pay simpliciter undoubtedly is a minor penalty but when it was imposed with cumulative effect it would indisputably mean that two increments earned by the employee was cut off as measure of penalty for ever in his upward march of earning higher scale of pay and in other words the clock is put back to a lower stage in the time scale of pay and on the expiry of two years the clock starts working from the stage afresh. The court further found that the insidious effect of the impugned order by necessary implication, is that the employee is reduced in his time scale by two places and it is in perpetuity during the rest of the tenure of his service with the effect that two years' increments would not be counted in his time scale of pay as a measure of penalty. The Apex Court concluded by holding that the penalty of withholding of increments with cumulative effect would come within the meaning of major penalty and its imposition without enquiry is per se illegal. This decision is seen followed by various High Courts and Tribunals across the country. Very recently, in an identical set of facts, the Punjab and Haryana High Court in State of Haryana v. Harbans Lai Dua, 2000 (1) Administrative Total Judgments 363, following the aforesaid dictum laid down by the Supreme Court held that penalty of stoppage of increments with cumulative effect is a major penalty and such penalty can be imposed after a regular enquiry only. The above decision of the Supreme Court has not been so far over ruled or rescinded by any co-ordinate Bench or a higher Bench.

It appears that the factual matrix and the question of law arose for consideration in Pushkaran and Kuhvani Singh are identical. Therefore, inevitable fall out is that the decision in Kerala High Court in Pushkaran goes inconsistent with the decision of the Apex Court in Kulwant Singh. What sounds unfortunate is that the counsel appearing on both sides before the Kerala High Court in the case failed to enlighten the Bench by inviting attention to the above position of law.

"Polluter Pays Principle"

(By Jasmine Alex, Advocate, Ernakulam)

Recently the Supreme Court of India has adopted a new concept of compensation pertaining to environmental pollution, namely "polluter pays principle". It is a new born of judicial creativity of the Apex Court upon the realisation that if the environmental disturbances were not controlled the survival of human being on this planet would become impossible.

The decisions in Indian Council for Enviro - Legal Action v. Union of India, (A.I.R.1996 SC 1446.) 'Vellore Citizens' Welfare Forum v. Union of India, (A.I.R. 2000 SC 1997.) M.C. Mehta v. Kamal Nath, (A.I.R. 1996 SC 2715.) etc. deserve special mention for the following reasons:

 (i)    "Polluter pays principle" has been applied as a means of paying for the cost of pollution and control.

(ii)   A principle acknowledged in Public International Law has been incorporated into the law of the land as a binding principle of law.

(i) The Polluter should Pay:

The "Polluter pays principle" puts the wrongdoer under an obligation to make good the damage caused to the environment. Accordingly, it is not the role of Government to meet the costs involved in either preventing such damage, or in carrying out remedial action, because in effect the financial burden would be shifted to the tax payer. In fact, this principle is the resolve of the International Community that environmental policy shall be based on the principle that the polluter should pay.

The recognition of the fact of the uncontrolled disturbances caused due to pollution and its impact on future resources prompted the United Nations to hold a Conference on Human Environment at Stockholm in 1972. In 1972, The Organization for Economic Co-operation and Development adopted the "polluter pays principle" as a recommendable method for pollution cost allocation. The Paris Summit of 1972 also discussed the application of the same principle. In 1974, the European community recommended the application of the principle by its member States so that the costs associated with the environmental protection against pollution may be allocated according to uniform principles throughout the community. The principle has been one of the four Community Action Programmes on Environment. The Current Fourth Action Programme of 1987 makes it clear that the cost of preventing and eliminating nuisances must in principle be borne by the polluter and the polluter pays principle has now been incorporated into the European Community Treaty as part of the new Articles on the Environment which were introduced by the Single European Act of 1986. In 1989, the Organization of Economic Co-operation and Development reaffirmed the same principle. The 1992 Maastricht Treaty also provides for the environment policy based on the polluter pays principle.

The Supreme Court of India in Indian Council for Enviro-Legal Action (Supra n. 1) applied the above mentioned principle while examining the liability of the respondent, i.e., the Union of India, in defraying the costs of remedial measures. According to this principle, the responsibility for repairing the damage is that of the offending industry and the Government is empowered to lake measures for giving effect to this principle (lb. at p. 1466). The Supreme Court in Vellore Citizens' Welfare Forum (Supra n.2.) took the view that this principle has been held to be a sound principle by the Court in Indian Council for Enviro-Legal Action and the same thus forms part of the environmental law of the country (Ib.atpp.272L2722.)and M.C. Melita reiterated the same position.

(i)  Incorporation of International Law into the Law of the Land:

A close reading of the above mentioned decisions clearly depicts the judicial technique by which a principle in International Law has been brought into operation in the municipal sphere.

The decisions of the Apex Court in Jolly George Varghese (AIR 1980 SC 470), Rudul Salt, (A1R 1983 SC 1086) Nilabati Behera (AIR 1993 SC 1960.), and a plethora of decisions thereafter1 have witnessed the judicial trend to bring any international principle consistent with or in harmony with the constitutional principles of the land into the municipal law so as to enable the judiciary to promote the object of the constitutional guarantee. "It is now an accepted rule of judicial construction that regard must be had to international conventions and norms for construing domestic law, when there is no inconsistency between them and there is a void in the domestic law."2

The spirit of Art.51© of the Constitution of India which provides for fostering respect for International Law also supports this judicial view. According, even in the absence of a law under Art.253, the judicial law-making provides for filling the gap. In the same way, the Supreme Court borrowed the "polluter pays principle" from Public International Law to fill a laccuna in environmental law in expanding the scope and ambit of Art.21 of the Constitution of India.

In M.C. Mehta (Supra n.3) Saghir Ahmed, J. read Arts.48-A and 51-A(g) into Art.23 of the Constitution and held that any disturbance of the basic environment elements which are necessary for life would be hazardous to "life" within the meaning of Art.21.(Id. At p. 2000) And the Court went further holding that if those rights are violated by disturbing the environment, it can award damages not only for the restoration of the ecological balance, but also for the victims who have suffered due to that disturbance (Ibid). In the matter of awarding damages under Art.32, the Court, following the decisions in Indian Council for Environ-Legal Action and Vellore-Citizens' Welfare Forum, as a corollary to the compensation jurisprudence3 evolved in Public Law domain, has enforced the "polluter pays principle" which is widely accepted in the international sphere as a means of paying for the cost of pollution and control (Supra n.3 at pp. 2001,2001).

Conclusion:

The adoption of the new principle into the law of the land obviates the difficulties in recovering compensatory costs from private parties by the Government. Still, the question whether private parties can directly be brought under writ jurisdiction remains open. But it deserves special mention that in the event of protecting rights of individuals and the society, the apex judiciary is duty bound to ensure remedial measures even by invoking equity principles or adopting legal rules from Public International Law.

______________________________________________________________________

Foot Note :

1."See, for example Bodhi Sattvea v. Ms. Subra Ckakraborty, AIR 1996 SC 922; D.K. Baku v. State of West Bengal, AIR 1997 SC 610; Vishaka v. Stale of Rajaxthan, AIR 1997 SC 3011; Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625; Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149; Chairman, Railway Board v. Chandrbna Das, AIR 2000 SC 988; Municipal Corporation of Delhi v. Female Workers (Muster Roll), AIR 2000 SC 1274.

2.Per J.S. Verma, C.J.I., in Vishaka v. State of Rajasthan, AIR 1997 SC 3011 at P. 3015.

3.See, Rudul Shah v. State of Bihar, AIR 1983 SC 1086; Sebastian M. Hongray v. Union of India, (1984) 3 SCC 82; Bhim Singh v. State of J. and K.; AIR 1986 SC 494, Saheli v. Commissioner of Police, Delhi Police Head Quarters, AIR 1990 SC 513; State of Maharashtra v. Ravikant S. Patil(l99l) 2 SCC 373; Nilabati Behra v. State ofOrissa, AIR 1993 SC 1960; D.K. Basu v. State of West Bengal, AIR 1997 SC 610 etc.

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).

Hamsadhwani and a Hallmark Judgment:

A Critical Appreciation of Radhakrishna Panicker v. State (2001(3) KLT 631)

(By S. Parameswaran, Advocate, Ernakulam)

I.  In Carnatic music a concert normally starts with the invocation of Lord Ganesha, mostly with Vatampiganapathim Bhajeham in raga Hamsadhwani. Though Ganeshastuthi is an unwritten writ, Hamsadhwani is not - and rightly so - for the artists must have the freedom of choice of the raga. So is the case with judicial performance. Minds differ as rivers differ and judicial minds are no exception; and consistency is not known as a judicial virtue. But, there are cases and circumstances where Judges should be consistent and should not give room for disconcerting unpredictability of litigations. One such area is admission of cases to file. Admission of a case is a judicial conduct that is expected of him in discharge of a duty plainly cast on the Judge by the Constitution. Further, admission of a new case to file though done by an individual Judge is virtually admission by the High Court. Hence, once a similar case has been admitted by one Judge, the other judges, before whom identical cases come up for admission, are bound to follow suit and to act otherwise is nothing short of judicial indiscipline.

II.   It is in this context that the decision of the Division Bench in Radhakrishna Panicker v. State (2001 (3) KLT 631) assumes significance and deserves a thundering applause and a standing ovation from our lawyer fraternity, for, it has well laid to rest the ghost of a pernicious practice persistently pursued by some puigne Judges of the Kerala High Court in the matter of admission for some time past.

III.  Admission of cases to file is a judicial act with its noble and laudable underpinnings of law and justice. Inconsistency of approaches and discrepancy in attitudes of different Judges in admission of cases will send out wrong signals about the impartiality of the judiciary and invite popular misconception that this august institution is little different from the two political Branches of the Government. See the ring of truth in the observations of the Americal Supreme Court: "The Court's power lies in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the judiciary as fit to determine what the Nation's law means and to determine what it demands. The Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation...........The Country can accept some corrections of error without necessarily questioning the legitimacy of the Court......   The legitimacy of Court would fade (however,) with the frequency of its vacillation. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible". (Planned Parenthood of South Pennsylvania v. Casey, (505 US 833)(1992)).

IV.   It is very much necessary that Judges take particular care about their attitudes and utterings from the Bench when one considers the fact that justices maintain an image of a hallowed, priestly tribe that dispenses wisdom from Olympian heights and the people have a right to challenge that wisdom and demystify or debunk those images.

V.  Public scrutiny of the behaviour and perception of Judges is the only effective check on judicial "extravaganza and error", but the scrutiny should not degenerate into a scurrilous, motivated attack on the judiciary.

VI.  And does not former Indian Chief Justice J.S. Verma speak a home truth when he says "The people must be satisfied that he (Judge) practices what he preaches, and only the proper perception influences the course of judicial process. Justice is a divine function. We (Judges) are entrusted with the onerous task of dispensing justice. We, therefore, discharge, a divine function. Since none of us is divine and consequently, perfect justice is beyond us. to administer justice to the best of our ability is all that we can and must strive to achieve". ("New Dimensions of Justice", J.S. Verma, Universal Law Publishing Co. P. Ltd., New Delhi (2001)).

VII.  It is pertinent here to recall the words of the Apex Court in State of Assam v. P. C. Mehra (AIR 1996 SC 430), "Constant awareness of the nature of the (judicial) power and purpose for which it is meant would prevent situations leading to clash of egos and the resultant fall out detrimental to public interest".

Moreover, above the High Court's head, we have a powerful Supreme Court in the country, which can - often does - act as a check on the former's vacillation and vagaries.

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JUSTICE A. LEKSHMIKUTTY

To My Beloved Brother Mrs. Justice V.P. Mohan Kumar, Acting Chief Justice, High court of Kerala.

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