In Re Plachimada

(By Justice K.P. Radhakrishna Menon)

The Supreme Court in State of Tamil Nadu v. Hind Stones, (1981) 2 SCC 205 has held: “Rivers, such other sources constitute a nation's natural wealth. These resources are not to be frittered away and exhausted by any generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation". Margret Thatcher, one of the ablest and bold Prime Ministers of Britain after Sir Winston Churchill, usedthe felicitous words to emphasis her concern about the declining health of the vital signs of the earth has a free hold on this earth: “No generation has a free hold on this earth. All we have is a life tenancy — with a full repairing lease “. The environmentalist Mr. Lester Brown remarked 'we have not inherited this earth from our forefathers, we have borrowed it from our children'. The First Brandt Report of the Brandt Commission, an International Commission which dealt with the impairment of ecology, environment and natural resources caused by people who have fallen into the whirlpool of the evils consumerism, has paused the question; "Are we to leave our successors a scorched planet advancing deserts, impoverished land scapes and ailing environment?"

Taking note of this alarming situation, Parliament by the (Forty Second Amendment) Act, 1976 incorporated Art. 48 A. "Protection and improvement of environment and safe guarding of forests and wild life"-- and Art. 15 A(g). The Fundamental Duty of a citizen "to protect and improve the natural environment including forests, lakes, rivers and wild life........." into the constitution.

Construing the Directive Principles (Art.48A is one such Directive) the Supreme Court in held that the purpose of the Directive Principles is to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution. Through such a social revolution the constitution seeks to fulfill the basic needs of the common man and to change the structure of our society. It aims at making the Indian masses free in the positive sense. Without faithfully implementing the Directive Principles it is not possible to achieve the welfare State contemplated by the Constitution. Justice Ray held that "the Directive Principles can be effective only if they are to prevail over the fundamental rights of a few in order to sub-serve the common-good". The Apex Court also found that it is the constitutional duty not only of the State (Art.48A) but also of every citizen (Art. 51 A) to protect and improve the environment and natural resources of the country. The Supreme Court has also made it clear that the Directive Principle contemplated under Art. 48A can even be enforced taking into account the expanded interpretation of Art.21 guaranteeing the fundamental right of a citizen to be free and live in dignity.

The lethargy on the part of the State resulted in the non implementation of the commands highlighted in Art.48A, resulting in the impairment of the ecology, environment and natural resources by the rich in the process of their commercial ventures, to the detriment of the poor, for the welfare of whom the constitution has contemplated the welfare State. The case M.C. Mehta v. Kamalnath, (1997) 1 SCC 388, is a pointer in this regard.

Considering the various aspects of the issue the Supreme Court declared (in Kamalnath case) that "The Public Trust Doctrine is a part of the law of the land". I shall reproduce relevant portions of the judgment:

"....The Public Trust Doctrine primarily rests on the principle that certain sources like air sea, water and the forest have such a great importance to the people as a whole, that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The Doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes .......Our legal system -- based on English common law -- includes the Public Trust Doctrine  as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment....... The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership. Thus the Public Trust Doctrine is a part of the law of the land". (Emphasis supplied)

By virtue of Art.141 of the Constitution the law declared by the Supreme Court shall be binding on all authorities including High Courts, Tribunals and Governmental instrumentalities.

Ignoring the law declared by the Supreme Court namely that the Public Trust Doctrine under which the State as a trustee is under a legal duty to protect the natural resources, the object sought to be achieved by Art.48A read with Art.21 and the specific provision in the Panchayat Act, mandating the Panchayat to protect and maintain the water sources, the Government allowed the appeal, the Coco-Cola company had filed before them challenging the resolution of the Perumatti Panchayat not to renew its permit/license on the ground that extraction of ground water by the company has affected the right of the people in general in and around the area to get drinking water, and directed the Panchayat to reconsider the issue after getting the report of an expert body. The stay of operation of the resolution of the Panchayat was kept in force till the disposal of the issue afresh by the Panchayat.

The order of the Government, the Panchayat challenged before the High Court. The learned Judge Sri. Justice Balakrishnan Nair found that the underground water in dispute is a natural wealth relying on the ruling of the Supreme Court in Mehta v. Kamalnath. Relevant portion of the judgment reads: "Therefore, I feel that the extraction of ground water, even at the admitted amounts — by the 2nd respondent (Coca-Cola Company) is illegal. It has no right to extract this much of national wealth. The Panchayat and the State are bound to prevent it. The duty of the Panchayat can be co-related with its mandatory function "No.3" under the Third Schedule to Panchayat Raj Act namely "Maintenance of traditional drinking water sources’ and that of the State of Art.21 of the Constitution of India. Though ground water is not expressly mentioned, S.218 makes the Panchayat, the custodian of all natural water resources”.

This verdict is one following the dictum laid down by the Supreme Court in Mehta v. Kamalnath namely "The State as trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership" rendered with the idea of accomplishing the objective sought to be achieved by Art.48A read with Art.21 of the Constitution. Sinha, J. of the Supreme Court in his dissenting judgment in State of West Bengal v. Keshoram Industries, (2004) 10 SCC 201, after restating the law of the Doctrine of Public Trust in relation to natural resources, has noted with approval the decision of Justice Balakrishnan Nair (Para 389) and observed: "The High Court of Kerala recently by a judgment (Vide 2004 (1) KLT 731) restrained Coca-Cola company from using ground water for running its plant at Plachimada.........stating that ground water was a part of the national wealth and it belongs to the entire society,............the State has to protect under-water against excessive exploitation and inaction on its part tantamount to infringement of the fundamental right guaranteed  under Art.21 of the Constitution".

This decision of Justice Balakrishnan Nair following the Supreme Court rulings declaring the law, is reversed by a Division Bench in appeal, as is seen from the judgment reported in 2005 (2) KLT 554 (Hindustan Coca-Cola Beverages Ltd. v. Perumatty Grama Panchayat). The findings of the Division Bench that the water extracted by the company from its property is its wealth, virtually runs counter to the law declared by the Supreme Court in M. C. Mehta case. It is relevant to note that it is not as if, the Division Bench was not aware of the above Supreme Court dictum. That the Judges were conscious of the law declared by the Supreme Court is clear from their declaration that "We hold that ordinarily a person has right to draw water, in reasonable limits, without waiting for permission from the Panchayat and the Government. This alone could be the rule, and the restriction, an exception. The reliance placed by the learned Judge in Kamalnath's case. (1997) 1 SCC 388. is not sufficient to dislodge the claim. The observation in para 13 that the ground water under the land of the respondent (company) does not belong to it may not be a correct proposition of law".

The above declaration of law by the Division Bench, I submit, cannot be sustained in the light of the dictum laid down by the Supreme Court in Kamalnath's case, which was restated by Sinha, J. in his dissenting judgment (dissent only on the main point) while noting with approval the decision of Balakrishnan Nair, J.

The ratio of the ruling in Kamalnath case that "the Public Trust Doctrine is the law of the land” has the same status as that of a statute and if that be so, the finding of the Division Bench that “A person has the right to extract water from his property, unless it is prohibited by a statute” respect, warrants review. It is all the more so because the Division Bench virtually has impliedly found that the proprietary right of the company over the ground water is no more there, assuming it ever existed, in the light of its finding that, "In the present case, we also notice the statement that the company has registered themselves as required under the Kerala Ground Water (Control and Regulation) Act, 2002, which came into force on 11.12.2003". That the company has no such right is clear from the Preamble to the Act: I shall reproduce them for easy reference.

WHEREAS it is expedient to provide for the conservation of Ground Water and for the regulation and control of its extraction and use in the State of Kerala;

AND WHEREAS in certain areas of the State the tendency of indiscriminate extraction of Ground Water is continuing;

AND WHEREAS it is felt that the erratic extraction of ground water is found to result in undesired environmental problems in such areas;

AND WHEREAS the ground water is a critical resource of the State;

AND WHEREAS it is considered necessary in the public interest to regulate and control any form of development of ground water in the State of Kerala;"

The decision of the Division Bench I submit, is capable of thwarting the objective sought to be achieved by the Constitution by incorporating the directive principles, namely a welfare State.

In conclusion I will quote Dr. S. Radhakrishnan; "we have held that the ultimate sovereignty rests with the moral law, with the conscience of humanity. People as well as kings are subordinate to that. Dharma, righteousness, is the King of Kings. It is the ruler of both the people and the rulers themselves. It is the sovereignty of law which we have asserted".

Is It Time to Think of One More Ombudsman? One for the Legal Services?

(By Justice M.R. Hariharan Nair)

Squabbles in the fraternity of lawyers sometimes reach the level of litigation in Courts and the Respondent may even be the Bar Council. Even allegations of corruption are sometimes raised against the learned members of the Bar Council. In the absence of any shield of immunity from litigations provided to the Bar Council or its members through legal provisions, such litigations, often, are fought out to its logical end in Courts. But are there not better ways to resolve such problems than resort to regular litigation? Let us see what is the scheme in vogue in the U.K?

The Legal Services Ombudsman, there, can receive complaints about the professional body and call for the file concerned from the Bar Council and thereafter ask a senior member of the Ombudsman's investigating team to look at it. and the team, in turn, will prepare a report in the matter for the perusal of the Ombudsman. If the Investigating team wants more information or explanation from the complainant, they can call for it. When the report is ultimately filed and the Ombudsman is satisfied with the investigating officer's draft report, a copy thereof will be sent over to the complainant and to the Bar council.

If the Ombudsman decides, on the basis of the Report, that the Bar Council didn't investigate a complaint properly or didn't investigate it at all, a re-consideration of the question by the Bar Council can be directed. If he comes to the conclusion that the Bar Council delayed decision or caused unnecessary distress or inconvenience or mis- handled the complaint, compensation to the complainant from the Bar Council can be ordered besides leveling criticism against the Bar Council.

Where allegation of misconduct in the handling of a case by an Advocate stands proved, though the Ombudsman is competent to make a recommendation against the accused lawyer, normally this is not done directly. On the other hand the Ombudsman may recommend that the Bar Council should re-consider its decision on the complaint and take disciplinary action against the lawyer concerned. In other words, the Ombudsman doesn't proceed to discipline lawyers directly.

Normally the Ombudsman's recommendation to pay compensation to a complainant would be implemented by the Bar Council within four weeks of receiving the final report. The Ombudsman can also make 'a binding order' (as distinct from a recommendation) to pay compensation, though this is done only rarely. The impact of such a course would be that such order would have to be followed by the Bar Council even if the Bar Council disagrees with such decision.

Legal Services Ombudsman's decision is final unless reopened by itself which happens only in exceptional circumstances. Two justifying grounds in this regard are:-

(i) that there was a fundamental mistake in the case, or,

(ii) that some important information having serious impact on the decision was missing at the relevant time.

Though there is no appeal against the Legal Services Ombudsman's decision, judicial review would be possible.

If one is not happy with the day to day services received from the Office of the Legal Services Ombudsman, he can write to the Ombudsman's Corporate Services Manager in that regard in which case there would be an investigation into it by the Ombudsman himself.

Probably it is time that we, here, also start thinking of having an Ombudsman for Legal Services. Of course, in view of the disparity in working conditions and, the level of ethics, the scheme concerned cannot be the same as in the U.K. It have to undergo appropriate changes.

Mighty Landlords, Rejoice!

[Critique on Keshavan Nair v. State of Kerala vis-a-vis Haries v. State of Kerala]

(By P.M. Mohammad Shiraz, Advocate, Ernakulam)

On going through decision reported in 2005(3) KLT 391, Keshavan Nair v. State of Kerala, I am reminded of the unrelenting march of Judicial activism, which give the mighty landlord many a reason to cheer. Landlord's panacea for getting rid of troublesome tenant is patented by one of the greatest High Courts of this country. Probably our contribution to the globalisation of justice rendering machinery will be the dictum that if "the intention of the petitioners [Landlords] was to evict illegally the de facto complainant [tenant] who was allegedly running his office in the building belonging to the first and second petitioners", no offence under S.380 and consequentially under S.451 of the Indian Penal Code will lie.

Perusal of the sketchy narration of facts of the case will show that landlords who were on inimical terms with the tenant were alleged to have destroyed the building housing office of the tenant and the files, books, furniture etc. were found missing. On a complaint by the tenant, police after investigation laid charge under Ss.380 & 451 of Indian Penal Code against Landlords, who approached the High Court under S.482 of the Code of Criminal Procedure to quash the charge.

The Learned Judge, after analysing provisions of Ss. 23,24 & 378 of Indian Penal Code, came to the conclusion that since records produced before the court "will reveal the intention of the accused was only to evict the petitioners [Sic] and not to commit theft as defined" and went on to quash the charge as " it is well settled that if the court finds that the allegations revealed from the records on the face of it do not constitute ingredients of any offence, this court can certainly interfere under S.482 of Criminal Procedure Code and quash the charge. This will be necessary for the purpose of preventing abuse of process of court and also to meet ends of justice, as stated in S.482 itself".

After reading the Judgment, two questions troubled me:

A). Will not destruction of the tenanted premises and removal of furniture, books, files etc. from the premises, cause loss by unlawful means of property to which the person losing it is legally entitled? In other words, 'Wrongful loss' as defined in S.23 of Indian Penal Code. If that be so, since the act is alleged to be done with the intention of causing wrongful loss will it not amount to doing a thing dishonestly? and if that be so, will not the act amount to theft as defined in S.378 of Indian Penal Code?

The law can be summed up as follows: Where a person takes away a thing not because he bona fide believes that he has a right to take away the thing, but with the intention of coercing the person in possession to do something even though he does not intend to deprive that person of the thing permanently, he must be deemed to have committed an offence of theft. If this be the test, will not demolition of the building and removal of furniture etc. with an intention to illegally evict the de facto complainant, amount to theft and at least criminal trespass?

B. Is the High Court justified in exercising its power under S.482 in a case of this nature where the intention or lack of it can be brought out only in a full fledged trial?

Thinking about these imponderables, I turned the pages of KLT. Lo and behold, I came across Haries v. State of Kerala, 2005 (3) KLT 400. In that case, letters containing obscenity were written to a hapless woman and the Police after investigation laid charge against the author of those letters under Ss.292, 294(b) and 506(1) of the Code. The charge sheet was challenged by the accused invoking jurisdiction under S.482 of Criminal Procedure Code. After turning the 'annals of Indian Penal Code' and lamenting about the plight of Indian women, the learned Judge found that the allegations will constitute an offence under S.509 of Indian Penal Code and hence declined jurisdiction to quash the charge. The learned Judge found that since " the allegation revealed from the records constitute any offence or offences other than what are stated in the charge sheet it will not be just and proper to quash the charge. Such quashing will not only not secure ends of justice, but it will even result in miscarriage of justice".

Though women are definitely entitled to vigorous protection by all pillars of the State, is not a hapless young lawyer tenant entitled to claim that forcible dispossession of his office, his files, his books and furniture will cause at least wrongful loss to him and if that is done with the intention to evict him, such act will amount to theft and that such act will deprive him of protection granted by Act II of 1965?

Mourn, Mother Earth Mine! Revel, Thou Plunderers!!

(By K.G. Balasubramanian, Advocate, Ernakulam)

The latest example of legislative exuberance (misguided?) is The Kerala Promotion Of Tree Growth In Non Forest Areas Act, 2005. Though I am not an environmentalist in the strict sense, I too am concerned about preserving trees in God's own country.

A law for growing trees? Man, I was impressed. I was swept away in the vision of lush greenery the legislature must have planted. Our representatives collectively playing The Creator? All those grandfather trees (killed over last couple of decades) resurrected? I heaved a sigh of relief and rushed through the Act with heady anticipation.

The first 5 paragraphs of the preamble put me on velvet. The 6th one blew the daylights out, despite its apologetic attempt at being a palliative. But, I read on, perturbed. Impression: Unabashed asphyxiation of lofty ideals and precedents heralded over the years. In the guise of promoting green cover. A colossal masquerade! Brutus was misguided. Legislature has erred. Who is the Cassius?

Mate mine, the Act is mean. Is only that. Cannot be anything else! It mocks the Constitution. It is a cruel joke on environment. Ss.3,4 and 5 simply restate a platitude. S.6 is a killer, doing away with environment (laws) and cutting at the root of every tree. It is The Terminator of everything lush and green. (Quaere: Is not the section ultra vires?) One does not have to be resourceful to overcome Ss.7 to 13. The way out is readily available, tailor-made and user friendly, in S.14. It ensures that any other person (from a puny carpenter to a timber tycoon) acting in good faith can go on a merry rampage. The Commission appointed by the Hon'ble Supreme Court suggested restoration of eco-fragile regions. Our representatives have hastened to hand over the entire greenery in the State to any other person who need only act in good faith. Ha! The very name of the enactment is discordant and deceptive. Really, the Act should be named KERALA TREES (BURIAL) ACT.

ELEGY

R.I.P: Kerala Forest -- Noble, reviled and Mutilated. Born: Eons ago. Died: 2005 AD

Ssh.........! Mother Earth is mourning!

Mourn, countrymen mine, for what was green!

Weep, in the name of everything animistic, exquisite and precious!

Scream, for horror is upon thee! Run, or thou art done for!

Hide, all ye green and beautiful, for thou art marked for doom!

Wake up, ye all, that a monster shall not plunder flora and fauna!

Rush, ye woodcutter, ere axe thine is snatched away!

Beware, tomorrow’s Gordian query: What do “green© and @rain” look/feel like?!

TAILPIECE:Can the legislature enjoin underground cables and “one tree per home”?

A penalty for non-compliance? Keep politics and politicians out of forests?

Justice Janaki Amma

(By Mr. Justice K.P. Radhakrishna Menon)

Sister to all irrespective of caste, colour or religion, but mother to none in the biological sense, yet she was divine mother to all because her self-effacing love and compassion, which is the mark of high spirituality and culture, had overshot the barriers of family, race and creed and assumed a universal aspect. This was Janaki Amma.

Janaki Amma was rustic in simplicity, she and modest and therefore far removed from the contemporary educated, self conscious, self centered, egoistic modern women and yet. To quote the biographical statement of Swami Rangananthananda about the life of Sarada Devi, her life finds powerful and responsive echoes from the hearts of all men and women, rustic and modern alike" This fact explains her universal appeal. Whichever position she had adorned, Municipal Chairman, Justice, head of service organisations, Janaki Amma could get accolades from the public because she was committed, devoted, dedicated to the cause that comes before her and consequently justice reached the deserving always.

This noble lady breathed her last as shall happen to all mortals and therefore the role model of a woman she was not there in our midst today.

But like Sarada Devi, Janaki Amma will remain as an inspiring example to the modern woman in her efforts to steady her steps through the currents and cross-currents caused by the evils of consumerism engulfing the modern age.