General Rule — Non-transferability of Trust Properties — Exceptions to the Same — Known to Many but unknown to Some

(By N. Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1. Section 63 of the Trust Act, 2 of 1882 reads as follows :-

63. Following trust property - into the hands of third persons— Where trust property comes into the hands of a third person inconsistently with the trust, the beneficiary may require him to admit formally, or may institute a suit for a declaration, that the property is comprised in the trust.

Into that into which it has been converted.— Where the trustee has disposed of trust property and the money or other property which he has received therefor can be traced in his hands, or the hands of his legal representative or legatee, the beneficiary has in respect thereof, rights as nearly as may be the same as his rights in respect of the original trust property.

2. However, Section 64 of the Act gives some exceptions. Section 64 of the Act reads as follows:-

64. Saving of rights of certain transferees.— Nothing in section 63 entitles the beneficiary to any rights in respect of property in the hands of-

a) a transferee in good faith for consideration without having notice of the trust, either when the purchase money was paid, or when the conveyance was executed, or

b) a transfer for consideration from such a transferee.

3. A judgment-creditor of the trustee attaching and purchasing trust property is not a transferee for consideration within the meaning of this section.

4. Nothing in section 63 applies to money, currency notes, and negotiable instruments in the hands of a bona fide holder to whom they have passed in circulation or shall be deemed to effect the Indian Contract Act IX of 1872, Section 108, or the liability of a person to whom a debt or charge is transferred.

5. For creating a trust, what is required is the unequivocal declaration of the intentions followed by dedication of the property. 1979 (5) All. LR 97 at 99 = 1978 (2) RCJ 470 (Dayalchand v. First Additional District Judge) specification purpose, dedication of property divestiture by donor necessary to create a trust. AIR 1939 Pat 45. (Mt. Satwant Kuer v. Ambika Prasad).

6. Section 64 is an exception to S. 63. AIR 1935 Mad. 181(Venkitaram Reddy v. Valli Ammal).

7. Now coming to S.64 of Trust Act, which saves the rights of transferees, the judicial principles laid down are given below.

These would show that bona fide transferees for valuable considerations and without notice of trust are protected under S.64 of Trust Act. Transferees should have taken the properties without notice, actual or constructive. 32 Chancery D. 560 Taylor v. Blaklock, 10Ch. 22 Health v. Creaklock, LR 7 Ch. App. 259 at 268Picher v. Rawlis, ILR 38 Mad.1064 = 33 Indian Cases 45 (Prasanna Venkitachalam v. Collector of Trichinapoly).

It would appear that the word used is “a transferee” and not a purchaser. It also further provides that transferee must act in good faith in the transaction without any notice of trust, either at the point of time when purchase money was paid or when the conveyance was executed. If transferee was intended to mean or be co-extensive with buyer or purchaser, then suitable word would have been used as has been used in S. 92 of the Act. The transferee, includes the purchaser as also other transferees of title of properties in transactions like mortgage, or exchange. Such transferee, to be entitled to protection, must act in good faith without notice of trust, either at the time when purchase money was paid which connotes a buyer for price paid or when conveyance was executed which connotes other transferees. AIR 1972 Cal. 88 at para 17 at page 94 (Jayanta Mohan v. Jagat Mohan). Beneficiary cannot follow trust property in hands of transferee in good faith for consideration without notice of trust. AIR 1933 Cal. 366 Chartered Bank of India, Australia and China v. Imperial Bank of India.

8.Now with regard to legal position of a subsequent transferee from a previous transferee.

a) If the first transferee is a transferee for valuable consideration without notice of any trust, then subsequent transferee also would be benefited under S.64 of Trust Act and his rights would remain untouched. 14 Ch.D. 432 (CA) Borowgh’s case.

b)First purchaser was a bona fide purchaser without notice and for valuable consideration. Such a purchaser having no notice of breach of trust by trustees, sells the trust property. In the sale deed there is mere mention about the number of trust deed.

9. Mere notice of trust instrument cannot be deemed to be notice of breach of trust. Court held that purchase being 12 years from date of original sale, subsequent purchaser is not liable to beneficiary’s (here temple idol) to follow trust property. AIR 1968 Mad 161 at 166 and 167 D.B. (Joseph Costa v. Stansilaus Costa). It would be advisable that, we need not initiate any proceeding or steps or file a suit. If a suit or other proceedings is initiated against us, then we can claim protection under S. 64 of Trust Act by making the necessary pleadings regarding bona fide purchaser without notice and for valuable consideration. See 2007(2) MLJ 937 Para 14 - Inbamathi v. Ramar) Decisions referred to Jayanta Mohan v. Jagat Mohan (AIR 1972 Cal. 88) and Sesh Mutt M. Shah v. Syed ABdul Rashid (ILR 1992 Kar. 273).

10. But a transferee who claims to be a bona fide purchaser for valuable consideration without notice has to complete specifically and clearly that he is a bona fide purchaser along with the necessary averments regarding bona fide purchase.

DOCTRINE OF LIS PENDENSAND PROTECTING INTEREST OFBONA FIDE PURCHASER

(By Sujesh J. Mathew, Advocate, Muvattupuzha)

Doctrine of lis pendens is based on legal maxim ‘ut lite pendente nihil innovetur’ (During litigation nothing new should be introduced). This doctrine stood embodied in Section 52 of the Transfer of Property Act 1882. The principle of ‘lis pendens’ is in accordance with the equity, good conscience or justice. The doctrine is not based on the doctrine of notice, but on expediency and it is immaterial whether transferee pendente lite had or had no notice of the suit. The transferee cannot deprive the successful plaintiff from the fruits of the decree if he purchased the property pendente lite.

Under the doctrine of lis pendens the purchaser of pendente lite, is bound by the result of the litigation. According to this principle whosoever purchases a property during the pendency of a suit is bound by the judgment that may be made against the person from whom he derives title, even though such a purchaser was not party to the action or had no notice of the pending litigation. This doctrine applies to those transfers which are made during pendency of the suit or appeal arising out of that suit. The transferee pendente lite is bound by the decree, he is not able to take the plea that he is a bona fide purchaser for value and without notice of pendency of suit as transferee in respect of the purchased property. The effect of the rule lis pendens is not to annul the conveyance, but only to render it subservient to the rights of the parties to the litigation. This doctrine emphasis that transfer will be valid, but it is subjected to the result of the suit. So the transferee is bound by the decision of the court even if he had no actual or constructive notice of pendency suit.

Present law does not provide any opportunity or means by which the purchaser can know or verify whether litigation is pending or not in respect of the transferred property. Bona fide purchaser for value, without notice of pendency of litigation about the property, becomes ultimately the loser, simply because law is silent on the aspect to know about whether litigation is pending about the property which he intends to purchase, causing injustice to the bona fide purchaser.

It is needed that when suit is filed before the Civil Court, its copy should be sent to the Sub-Registrar's office and keep the details of the case with updating the details about the case even if appeal or so is preferred. The pendency of litigation details should be included in the Encumbrance Certificate by providing an additional column in it. By this way the purchaser will get ample opportunity to know the litigation details about the property which he intends to purchase and thus a bona fide purchaser can protect his interest effectively.

It is high time to enact necessary amendment in Registration Act, 1908 and Kerala Civil Rules of Practice by realizing the spirit of Section 52 of T.P. Act and at the same time protecting bona fide purchaser’s interest.

RE-WRITING THE CONCEPT OF BURDEN OF PROOF; SUPREME COURT JUDGMENT IN SHER SINGH @ PARTAPA V. STATE OF HARYANA (2015 (1) KLT SN 90 (C.NO. 109 (SC)REQUIRE RE-CONSIDERATION

(By M.A. Rashid, Advocate, High Court of Kerala, Ernakulam)

The golden rule that runs through the web of civilised criminal jurisprudence is that an accused is presumed to be innocent unless he is found guilty of the charged offence. Presumption of innocence is a human right as envisaged under Art.14 (2) of the International Covenant on Civil and Political Rights 1966. Art.11(1) of the Universal Declaration of Human Rights 1948 also provides that any charged with penal offences has a right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. Even before, it was part of English Common Law as observed by Viscount Sankey in Woolmington v. Director of Public Prosecutions¹, [Golden Thread Judgment] that “no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained’’. This principle also became a fundamental part of Criminal Law of India². It is also the cardinal rule of our criminal jurisprudence that the burden in the web of proof of an offence would always lie upon the prosecution to prove all the facts constituting the ingredients beyond reasonable doubt. If there is any reasonable doubt, the accused is entitled to the benefit of the reasonable doubt. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. But in Veeraswamy case³the Constitution Bench held that “…….a statute placing burden on the accused cannot be regarded as unreasonable, unjust or unfair. Nor it can be regarded as contrary to Art.21 of the Constitution as contended for the appellant. It may be noted that the principle reaffirmed in Woolmington case (supra), is not a universal rule to be followed in every case. The principle is applied only in the absence of statutory provision to the contrary”. As observed by Justice K.T.Thomas in State of West Bengal v. Mir Mohammad Omar & Ors⁴,that “the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty”. The Concept of “reverse burden” has been adopted in many statutes like Negotiable Instruments Act, Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act etc. In Indian Evidence Act, Section 113A (for Section 306 I.P.C.) and Section 113B (for 304B I.P.C.) places a reverse burden on the accused.

A Two Judge Bench⁵of the Supreme Court in Sher Singh @ Partapa v. State of Haryana⁶while dealing with S.304B I.P.C. and S.113B Evidence Act inter alia held as follows;

1. The Prosecution can discharge the initial burden to prove the ingredients of S.304B even by preponderance of Probabilities.

2. Once the presence of the concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt.

3. Keeping in perspective that Parliament has employed the amorphous pronoun/noun “it” (which we think should be construed as an allusion to the prosecution), followed by the word “shown” in Section 304B, the proper manner of interpreting the Section is that “shown” has to be read up to mean “prove” and the word “deemed” has to be read down to mean “presumed”.

Regarding the third proposition, there is no scope for doubt since the Courts in India have been interpreting the word “shown”to mean “prove” and the word “deemed” has to mean “presumed” though not expressly declared as ‘reading down’ and ‘reading up’⁷.

But the first two propositions require serious consideration because of a profusion of precedents against it. The genesis of Section 304B of I.P.C. introduced w.e.f. 19.11.1986 as per Act 43 of 1986 relates back to the 91st Report of the Law Commission of India. The Commission, in its Report dated 10th August, 1983, recommended reform of the law to deal with the situation which led to incorporation of Sections 304 B in I.P.C., making ‘dowry death’ an offence and Section 113B in the Evidence Act which provides for raising a presumption as to dowry death in case of an unnatural death within seven years of marriage when it is shown that a woman was subjected to harassment for dowry soon before her death. Presumption under S.113B of Indian Evidence Act is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials;

(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under S.304B, I.P.C.)

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death⁸.

Reading S.113B of the Evidence Act, as a part of S.304B, if the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances “the court shall presume that such person had caused the dowry death⁹”. The key words in S.113B are ‘shall presume’ leaving no option with a Court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable.

Can the prosecution discharge the initial burden to prove the ingredients of S.304B evenby preponderance of Probabilities?

There is a catena of precedents which unequivocally held that in order to establish the offence of dowry death under Section 304B, I.P.C. the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. Most recently in Karan Singh v. State of Haryana¹⁰it was held as follows;

“It has been held times without numberthat, “To establish the offence of dowry death under Section 304-B I.P.C. the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. In Rajeev Kumar v. State of Haryana¹¹it is held as follows;

“One of the essential ingredients of the offence of dowry death under S.304B, I.P.C. is that the accused must have subjected a woman to cruelty in connection with demand of dowry soon before her death and this ingredient has to be proved by the prosecution beyond reasonable doubt and only then the Court will presume that the accused has committed the offence of dowry death under S.113B of the Indian Evidence Act.”

In Indrajit Sureshprasad Bind v. State of Gujarat,¹²it was again held that to establish the offence of dowry death under Section 304B, I.P.C. the prosecution has to prove beyond reasonable doubt that the husband or his relative has subjected the deceased to cruelty or harassment in connection with demand of dowry soon before her death. In Vipin Jaiswal v. State of A.P.¹³the positions is made clear as follows;

In any case, to hold an accused guilty of both the offences under Sections 304B and 498A, I.P.C., the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused. Similarly, for the Court to draw the presumption under S.113B of the Evidence Act that the appellant had caused dowry death as defined in S.304B, I.P.C., the prosecution has to prove besides the demand of dowry, harassment or cruelty caused by the accused to the deceased soon before her death. Since the prosecution has not been able to prove beyond reasonable doubt this ingredient of harassment or cruelty, neither of the offences under S.498A and S.304B, I.P.C. has been made out by the prosecution^14.

In Arulvelu v. State¹⁵while allowing an appeal filed by the Accused against conviction U/S. 304B and 498A I.P.C. the Apex Court held that In criminal cases the conviction can be sustained only when there is clear evidence beyond reasonable doubt. The accused cannot be convicted on the ground that in all probabilities the accused may have committed the crime. The above Judgments reflect the judicial consensus in the issue and the Judgment in Sher Singh @ Partapa v. State of Haryana is a clear deviation from the settled principle of law. It is also to be noted that even in statutory offences which creates absolute liability the initial burden is on the prosecution and it must be discharged by the prosecution by the standard of proof beyond reasonable doubt¹⁶.

Whether the accused has to discharge his burden beyond reasonable doubt?

In Para-14 of the Judgment it is held as follows;

“It seems to us that what Parliament intended by using the word ‘deemed’ was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt”.

In Para 17 of the Judgment it is held as follows;

The other facet is that the husband has indeed a heavy burden cast on his shoulders in that his deemed culpability would have to be displaced and overturned beyond reasonable doubt. ..........................In order to avoid prolixity we shall record that our understanding of the law finds support in an extremely extensive and erudite judgment of this Court in P.N. Krishna Lal v. Government of Kerala¹⁷,in which decisions spanning the globe have been mentioned and discussed.

In P.N.Krishna Lal (supra) a two Judge Bench¹⁸of the Supreme Court upheld the constitutional validity of Section 57A of Kerala Abkari Act which also placed a reverse burden on the accused [(sub-s.(5)]. But there is no whisper in Krishna Lal (Supra) in support of the proposition that the Accused has to discharge his burden beyond reasonable doubt.

In Sanjiv Kumar v. State of Punjab^19,it was held as follows;

If the accused successfully rebuts the presumption by pleading and proving a probable defence, the presumption under S.113-B stands rebutted and the prosecution must prove its case without the aid of such presumption.

In Para 20 of the Judgment the Apex Court held in no uncertain terms as follows;

“We cannot lose sight of the principle that while the prosecution has to prove its case beyond reasonable doubt, the defence of the accused has to be tested on the touchstone of probability. The burden of proof lies on the prosecution in all criminal trials, though the onus may shift to the accused in given circumstances, and if so provided by law. Therefore, the evidence has to be appreciated to find out whether the defence set up by the appellant is probable and true.”

Burden of proof in offences created by legal fiction;

In Para 14 of the Judgment Justice Sen held as follows;

As is already noted above, Section 113B of the Evidence Act and Section 304B of the I.P.C. were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word ‘deemed’ in Section 304B to distinguish this provision from the others.

It is also held that “In our opinion, it would not be appropriate to lessen the husband’s onus to that of preponderance of probability as that would annihilate the deemed guilt expressed in Section 304B, and such a curial interpretation would defeat and neutralise the intentions and purposes of Parliament.

It is respectfully pointed out that no Judgment either Indian or foreign has been cited in support of the above preposition. The two Judge Bench was not appraised of any precedential support when giving a new interpretation to a provision which is contrary to the consistent view taken by the Supreme Court for the last 28 years. It is a well established dictum of the Evidence Act that misplacing burden of proof would vitiate judgment²⁰. A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to any purpose other than the one mentioned in the statute itself²¹, it is held that the word “deemed” in Section 304B, I.P.C., however, does not create a legal fiction but creates a presumption that the husband or relative of the husband has caused dowry death. Section 138 of Negotiable Instruments Act also contains the words “shall be deemed to have committed an offence”. It is well settled that offence U/S 138 is created by a legal fiction²². A three Judge Bench of the Supreme Court in Rangappa v. Sri Mohan²³examined the degree of proof required for an accused to discharge his burden in a prosecution U/S. 138 of N.I. Act and it is held as follows;

“Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments...........it is a settled position that when an accused has to rebut the presumption under S.139, the standard of proof for doing so is that of ‘preponderance of probabilities’. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail”

Legislative Intention

In Para 14 of the Judgment it is held as follows;

“It seems to us that what Parliament intended by using the word ‘deemed’ was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt” But the following provisions will make it clear that if the Parliament intends the accused to discharge his burden/part of burden/or to prove any ingredient beyond reasonable doubt, it would have expressed in clear terms.

1. Section 35 of N.D.P.S. Act.

2. Section 138A of Customs Act.

3. Section 278E of Income Tax Act.

4. 9C of Central Excise Act 1944.

5. Section 30 of POCSO Act 2012 [List is not exhaustive].

    Section 35 of N.D.P.S Act is extracted below;

35. Presumption of culpable mental state.

(1) In any prosecution for an offence under this Act, which requires a culpable mental state of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

Explanation.- In this section “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

(2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability.

All other Sections quoted above are in pari materia with Section 35 of N.D.P.S. Act.

Explaining the nature and extend of burden cast on the Accused U/S. 35(2) of N.D.P.S. Act, in Abdul Rashid v. State of Gujarat²⁴, Justice K.T.Thomas speaking for three Judge Bench held as follows;

“The burden of proof cast on the accused under S.35 can be discharged through different modes. One is that, he can rely on the materials available in the prosecution evidence. Next is, in addition to that he can elicit answers from prosecution witnesses through cross examination to dispel any such doubt. He may also adduce other evidence when he is called upon to enter on his defence. In other words, if circumstances appearing in prosecution case or in the prosecution evidence are such as to give reasonable assurance to the court that appellant could not have had the knowledge or the required intention, the burden cast on him under S.35 of the Act would stand discharged even if he has not adduced any other evidence of his own when he is called upon to enter on his defence.”

Even in a case where the statute (S.35 NDPS Act) requires the accused to prove his case beyond reasonable doubt, the three Judge Bench of the Apex Court had read it down in the aforesaid manner, evidently to save the section from the vires of Constitution.

Hence, except when there is a statutory provision which cast the burden of proof to a degree beyond reasonable doubt on the accused, the Court cannot impose such a heavy burden on him. It is definitely a new innovation, something which Parliament had not even thought of while enacting S.304B I.P.C. and S.113B Evidence Act. The inherent disability of an accused must always be borne in mind by the Courts when casting the degree of proof on the accused. The position becomes more formidable as Article 20(3) of the Constitution of India offers the constitutional protection to the accused by saving him from testimonial compulsion. I strongly doubt that the ratio propounded by the two Judge Bench in Sher Singh @ Partapa v. State of Haryanais not only contrary to the well established jurisprudential standards in criminal cases, but also amounts to negation of the fundamental right to fair trial guaranteed under Article 21 of Constitution of India.

Foot Note

1.1935 AC 462.

2.See V. D. Jhingan v. State of Uttar Pradesh (AIR 1966 SC 1762).

3.[(1991) 3 SCC 655].

4.(2000) 8 SCC 382.

5.Vikramjit Sen and Kurian Joseph.J.J.

6.Criminal Appeal No. 1592 of 2011 dt 9.1.2015 (2015 (1) KLT SN 90 (C.No. 109) SC.

7.See Gurdip Singh v. State of Punjab (2013 (4) KLT SN 11 (C.No. 8) SC = (2013) 10 SCC 395) in which Kurian.J. held “Though the expression “presumed” is not used under Section 304B of I.P.C., the words “shall be deemed” under Section 304B carry, literally and under law, the same meaning since the intent and context requires such attribution.”

8.Raman Kumar v. State of Punjab (2009) 16 SCC 35.

9.S.M.Multani v. State of Karnataka (AIR 2001 SC 921).

10.2014 (3) KLT Suppl. 29 (SC) = (2014) 5 SCC 73 - Ranjana Prakash Desai.J and Madan B. Lokur.J.

11.2014 (2) KLT Suppl. 58 (SC) = AIR 2014 SC 227 - AK.Patnaik.J and Gyan Sudha Misra.J.

12.[(2013) 14 SCC 678].

13.2013 (2) KLT Suppl. 21 (SC) = (2013) 3 SCC 684; AIR 2013 SC 1567.

14.[Also see Madivallappa v. Marabad v. State of Karnataka (2013 (2) KLT Suppl. 25 (SC) = 2013(2) SCALE 665 ; Devinder v. State of Haryana (2012 (4) KLT Suppl. 25 (SC) = (2012) 10 SCC 763);Narayanamurthy v. State of Karnataka (AIR 2008 SC 23770 ; (2008) 16 SCC 512] Raj v. State of Punjab & Ors. ((2000) 5 SCC 207);Sanjiv Kumar v. State of Punjab, ((2009) 16 SCC 487); Bakshish Ram v. State of Punjab (2013) 4 SCC 131).

15.2009 (4) KLT SN 100 (C.No. 97) SC = (2009) 10 SCC 206.

16.See P.C. Act - State of Maharashtra v. Wasudeo Ramchandra Kaidalwar(AIR 1981 SC 1186]; N.D.P.S. Act - Bhola Singh v. State of Punjab(2011 (2) KLT SN 5 (C.No. 6) SC = (2011) 11 SCC 653); N.I. Act;Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008 (1) KLT 425 (SC) = (2008 (1) SCALE 421).

17.1995 Supp (2) SCC 187.

18.K.Ramswamy and N. Venkatachala.JJ.

19.(2009) 16 SCC 487- B.P.Singh and Tarun Chatterjee.JJ.

20.Rangammal v. Kuppuswami(2011 (2) KLT SN 97 (C.No. 119) SC = AIR 2011 SC 2344).

21.See Raj Kumar Khurana v. State (2009 (2) KLT 232 (SC) = (2009) 6 SCC 72). In Devinder v. State of Haryana ((2012) 10 SCC 763).

22.See R. Kalyani v. Janak C. Mehta & Ors.(2009 (3) KLT Suppl. 428 = (2009) 1 SCC 516) and DCM Financial Services Ltd. v. J.N. Sareen & Anr.(2008) 8 SCC 1).

23.2010 (2) KLT 682 (SC) = AIR 2010 SC 1898.

24.2010 (1) KLT SN 63 (C.No. 72) SC = (AIR 2000 SC 821).

Governor and Universities

(By S. Manu, Advocate, High Court of Kerala)

Recent efforts by the Governor of Kerala to streamline the functioning of the Universities has given rise to a debate about the legality and propriety of interference by the Governor in the affairs of the Universities in his capacity as Chancellor of the Universities. The prime argument of the critics is that the Governor is a ceremonial head of the State, bound to act only in accordance with the advice given by the Council of Ministers under the scheme of the Constitution and hence he is transgressing the limits of his authority by calling a meeting of the Vice-Chancellors and giving directions to them without the concurrence of the Council of Ministers. Drawing analogy from the role of the Governor in the government apparatus some have raised another argument that the he is only a formal head of the institution as far as Universities are also concerned.

A brief survey, of the provisions of the relevant legislations is necessary to understand the role of the Chancellor in the administration of Universities.

The Kerala University is the first University established in the State. Section 7 of the Kerala University Act deals with the “Chancellor”. It reads thus-

“ 7. The Chancellor.--(1) The Governor of Kerala shall, by virtue of his office, be the Chancellor of the University.

(2)The Chancellor shall be the head of the University and shall, when present, preside at meetings of the Senate, and at any convocation of the University.

(3) The Chancellor may, by order in writing, annul any proceeding; of any of the authorities of the University which is not in conformity with this Act, the Statutes, the Ordinances, the Regulations, the rules or the bye-laws.

Provided that, before making any such order, the Chancellor shall call upon such authority to show cause why such an order should not be made and consider the cause, if any, shown by such authority within a reasonable time.

(4) The Chancellor shall, when an emergency arises, have the right to suspend or dismiss any of the authorities of the University and to take measures for the interim administration of the University.

(5) Every proposal for the conferment of an honorary degree shall be subject to confirmation by the Chancellor.

(6) An appeal shall lie to the Chancellor against any order of dismissal passed by the Syndicate or the Vice-Chancellor against any person in the service of the University.

(7) An appeal under sub-section (6) shall be filed within sixty days from the date of service of the order of dismissal on the person concerned.

(8) The Chancellor shall before passing any order on an appeal under sub-section (6), refer the matter for advice to a Tribunal appointed by him for the purpose.

(9) The Chancellor shall have power to remove the Vice-Chancellor or the Pro-Vice-Chancellor from office by an order in writing on charges of misappropriation or mismanagement of funds or misbehaviour:

Provided that such charges are proved by an enquiry conducted by a person who is or has been a Judge of the High Court or the Supreme Court appointed by the Chancellor for the purpose:

Provided further that the Vice-Chancellor or the Pro-Vice-Chancellor shall not be removed under this section unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him.

(10) The Chancellor shall have such other powers as may be conferred on him by this Act or the Statutes.”    (emphasis added)

It is clear from S.7 of the Act that in the case of the University, the Chancellor is not a “ceremonial head”. He is the highest authority of the University vested with the powers to annul the proceedings of any other authority, to suspend or dismiss any authority, to remove the Vice-Chancellor or the Pro-Vice-Chancellor, to consider appeals from the orders of the Vice - Chancellor or the Syndicate removing anyone from the service of the University etc.

Section 10 of the Act deals with the “Vice-Chancellor”. Appointing authority of the Vice -Chancellor is the Chancellor as per sub-section. The remuneration payable to the Vice- Chancellor and the other conditions of service of the Vice-Chancellor are also to be determined by the Chancellor. Under sub-section 16, the Vice-Chancellor is bound to report all proceedings of the University which are not carried on in accordance with the provisions of the Act, the Statute, the Ordinances, the Regulations, the rules and the bye-laws, to the Chancellor.

Apart from the vide powers vested under Section 7 and 10 the Chancellor is vested with the authority to nominate members from specified categories to the Senate and Academic Council. (See Sections 17 and 24). If any question arises as to whether any person is disqualified under S.33(1) the question shall be referred to the Chancellor and his decision thereon shall be final as per S.33(2).

Section 35 deals with the procedure for making statutes. Sub-section 6 mandates that no statute passed by the Senate shall be valid or come in to force unless assented to by the Chancellor. Regarding promulgation of ordinances involving expenditure also the Chancellor is vested with power to give assent. (See S.37(4)) There are some other provisions also which confer more powers on the Chancellor.

Almost identical are the provisions in the Calicut University Act, 1975, MahatmaGandhi University Act 1985 and the Kannur University Act 1996. No restrictions are placed in any of these provisions with regard to the exercising of discretion by the Governor and not even a consultation with the Chief Minister or any other Minister is contemplated. Therefore the Governor, in his capacity as the Chancellor enjoys wide powers in the functioning of all these affiliating Universities of the State. Legislations regarding other Universities also provide vast powers and responsibilities to the Chancellor. (NUALS is an exception where the Chief Justice of the High Court of Kerala is the Chancellor).

Whether the Governor is bound to act in accordance with the advice by the council of ministers in discharging his duties in his capacity as the Chancellor of Universities?

Durga Das Basu’s Commentary on the Constitution of India has dealt with this question specifically. (See page 6104, 8th Edition, Commentary on the Constitution of India - Durga Das Basu). The relevant portion reads thus-

“ Where a State University Act provides that the Governor, by virtue of his Office, shall be the Chancellor of the University, and confers duties on him not as Governor of the State but as Chancellor, there is no obligation on the part of the Governor in his capacity as Chancellor, always to act on Ministerial advice under Art 163(3). However there is an obvious advantage in the Governor consulting the Chief Minister or other Ministers, but he would have to form his own individual judgment. In his capacity as Chancellor of a University, the Governor may be required by the University’s Statute to consult a Minister mentioned in the Statute on specific matter. In such cases, the Governor may well be advised to consult the Minister on other important matters also. In either case, there is no legal obligation for him to necessarily act on any advice received by him”  (Emphasis supplied)

Way back in 1990, a Division Bench of the High Court of Kerala had considered the same issue in Gopalakrishnan v. Chancellor (1990 (1) KLT 681). Nomination of seven members to the Senate by the Chancellor was under challenge in the case mainly on the ground that their nomination was without the advice of the Council of Ministers. The Cabinet had advised the nomination of nine persons chosen by it, but the Chancellor nominated only two from out of the list of nine and nominated seven others according to her discretion. The Court, after a detailed analysis of the provisions of the Kerala University Act and case law on the subject, rejected the contentions of the petitioner and dismissed the writ petition. It was held that it is only those functions which are vested in the Governor, or which the Governor is required to do by virtue of his position as such, under the Constitution, that are attracted by Article 163 and it is only in relation to these functions that the Governor is bound to act on the aid and advice of the Council of Ministers- for instance, the executive functions of the Governor under Article 154. It was further held that statutory functions which the Governor is empowered or bound to do under a particular enactment are beyond the purview of Article 163. After analyzing various provisions of the Kerala University Act it was concluded that there is a clear distinction between the powers and functions of the Chancellor and the Government and this dichotomy shows that the Act has not equated the Chancellor with the Government.

Recently the Supreme Court, in the case related to the appointment of Lok Ayukta in Gujarat (State of Gujarat v. R.A. Mehta) made a detailed analysis of the precedents on the authority of Governor, right from Samsher Singh v. State of Punjab (AIR 1974 SC 2192). The Apex Court has drawn a clear line of distinction between the Constitutional and statutory powers of the Governor in this case and observed thus:

“ There are several ways by which, a power may be conferred upon the Governor, or qua the Governor, which will enable him to exercise the said power, by virtue of his office as Governor. Therefore, there can be no gainsaying that all the powers that are exercisable by the Governor, by virtue of his office, can be exercised only in accordance with the aid and advice of the Council of Ministers, except insofar as the Constitution expressly, or perhaps by necessary implication, provides otherwise.

Thus, in such a situation, the Statute makes a clear cut distinction between two distinct authorities, namely, the Chancellor and the State Government. When the legislature intentionally makes such a distinction, the same must also be interpreted distinctly, and while dealing with the case of the Vice-Chancellor, the Governor, being the Chancellor of the University, acts only in his personal capacity, and therefore, the powers and duties exercised and performed by him under a statute related to the University, as its Chancellor, have absolutely no relation to the exercise and performance of the powers and duties by him, while he holds office as the Governor of the State.”

Law on the issue is hence unambiguous and the Governor is well within his authority in playing a proactive role in the affairs of the Universities. He is not bound to wait for the advice of the Council of Ministers for exercising his authority as the Chancellor. Fact that his predecessors in office never understood the scope of their authority in this regard or rather were insensitive to the problems in the higher education sector need not dissuade the present incumbent, a former Chief Justice of India, from moving ahead with his efforts. He is legally right and certainly he knows it much better than his critics.

Litigants as Victims under Rule of Judgment

(By P. Chandrasekhar, Advocate, Ernakulam)

This paper examines the impact of “differend”^₁ in a case that involved interpretation of Rule 14(e) of Kerala State and Subordinate Service Rules (K.S.&S.S.R.) which embodies principle of affirmative action in public employment. A young lawyer (the petitioner) applied for the post of District Judge in the Kerala Higher Judicial Service. Kerala Higher Judicial Service Rules stipulate that in the matter of selection to the post of District Judges Rules 14 to 17 of K.S.&S.S.R., the rules of reservation for backward classes, shall apply. The notification issued by the High Court of Kerala provides that selection of District Judges shall be by written test and viva voce. The written test consisted of three papers each paper carrying a maximum of 200 marks. The notification also stipulated that General candidates and candidates belonging to Other Backward Classes securing not less than 50% marks and candidates belonging to Scheduled Caste and Scheduled Tribes securing not less than 40 % of marks in each paper of the written examination alone were eligible for being called for viva-voce. The maximum marks for viva-voce was 50. Written test was conducted by the High Court in which the Petitioner also participated. After evaluation of answer papers of the candidates who wrote the written test it was found that those who obtained cut off marks stipulated in the notification were less than the number of candidates required. The High Court therefore decided to give 20 marks to each candidate by way of moderation. After the moderation of marks several candidates including the petitioner became eligible to be included in the short list for viva voce. The candidates were interviewed and a rank list was prepared in accordance with the marks of the candidates in the written test and viva voce. Certain general merit candidates who had the requisite cut off marks in the written test without moderation and who were left out of selection challenged the moderation of marks as illegal. By that time petitioner had already been appointed District Judge and he had joined duty giving up his lucrative practice in a moffussil court. When the matter came up before Division Bench the High Court defended its action based on Rule 14(e) of K.S.&S.S.R. which reads as follows:

“A supplementary list of sufficient number of suitable candidates, not less than five times the reservation quota, if available, from each community or group of communities for the purpose of satisfying the reservation quota, shall be prepared and published.

Note: - ‘Suitable Candidates’ for the purpose of this rule shall mean candidates with notified minimum qualifications and marks in selection procedure lowered to the extent necessary.

The Division Bench held that moderation of marks was illegal. In the Rules there was no provision for moderation of marks. The Division Bench said that Rule 14 (e) could  be applied only at the threshold and not thereafter, lest it should defeat the purpose of Rule 15 of K.S.&S.S.R.which provided that if a suitable candidate was not available for selection from any particular community or group of communities specified in the Annexure to the K.S.&S.S.R. such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. The Division Bench also held that the cut off marks mentioned in the notification could not have been relaxed or lowered after the selection procedure started². As a consequence, all candidates including the petitioner who had become District Judges and were continuing in service were sent out of service. Prior to termination of his service the petitioner put in a petition that he be allowed to continue in service since there was no other candidate to be appointed from the back ward community to which he belonged and no other candidate other than a person belonging to the community to which petitioner belonged could be appointed in the vacancy which would be arising on termination of his service. Subsequent to the termination of his service he submitted another petition requesting the High Court to take him back in service invoking Rule 14(e) of the K.S.&S.S.R. as there was no candidate to fill up the vacancy in the post held by him. Though the High Court made attempt to fill up the post of District Judge earmarked for the community to which the petitioner belonged subsequently the post could not be filled for want of suitable candidate. The vacancy in which the petitioner had been appointed continued to remain vacant. The Petitioner therefore filed a writ petition to apply rule of reservation stipulated in Rule 14(e) of K.S.&S.S.R. to the selection and appointment of District Judges in the Kerala Higher Judicial Service and to invoke the said Rule in the matter of appointment of back ward class candidates to the post of District Judge.

When the Writ Petition of the petitioner came up for hearing it was contented on behalf of the High Court that the petitioner being party to the earlier writ petition before the Division Bench and the Division Bench having held that Rule 14(e) could not be applied in the case, the writ petition was barred not only by rule of precedent but also by res judicata. The Court rejected the contentions and agreed that the writ petition was neither barred by res judicata nor did the earlier division bench decision constitute a binding precedent in the case. The Court however dismissed the writ petition on the ground of delay and laches on the part of the petitioner in not challenging the action of the High Court earlier³. The Court also held that Rule 14(e) is an enabling provision and not a mandatory one. The petitioner took the matter before the Division Bench and argued that there was no delay or laches as he had taken timely action to put up his grievances before the authorities. Even if there was delay, it was contended, that was no reason to deny him his fundamental rights under Articles 14 and 16 and especially so since no third party would be prejudicially affected. He contended that Rule 14(e) embodies the principles of equality with a view to provide a level playing field and that Rule 14(e) confers a power coupled with duty. The Division Bench did not accept the contentions and dismissed the appeal confirming the judgment of the learned Single Judge⁴.

A plain reading of Rule 14(e) would show that the application of the Rule 14(e) could not be rejected at the threshold. Use of the word “shall” in the rule, obviously, indicates that the requirement of preparation and publication of supplementary list of suitable candidates, if available, for satisfying reservation quota is mandatory. The Note appended to Rule 14(e) defines a “suitable candidate” as a candidate with notified minimum qualification and marks in the selection procedure lowered to the extent necessary. Obviously, lowering of marks could only from the bench marks already fixed. What is the extent of marks required to be lowered would be known only after starting of the selection procedure and after the marks awarded to the candidates during the selection process were known. The facts were marshalled. The law was settled. The Division Bench, however, dismissed the appeal filed by the petitioner holding that the rule of game could not be changed after the game started. But every one forgot the most important factor. The need to redress the grievance of the victim. The need to compensate the wrong done to him. The Petitioner had accepted the offer of the High Court and took office of District Judge giving up his lucrative legal practice. He lost his job ultimately for no fault of his but the fault of the High Court. Should not he be recompensed? But he had to go out of court as a wronged person and an outlaw, an ignominious title which he definitely did not deserve.  A clear case of “differend”.

In yet another case involving interpretation of Rule 14(e)of K.S.&S.S.R., a Division Bench was dealing with the question of segregation of backward class candidates from general merit candidates in the matter of their inclusion in the rank list prepared by the Public Service Commission (P.S.C.). P.S.C. invited applications for the post of Sub Inspector of Police.

42,000 candidates who had the notified minimum qualification applied for the post. P.S.C. conducted an OMR test for short listing the eligible candidates. The short list was restricted to a list of 2000 candidates. The mark of the 2000th candidate was 49. 49 was therefore taken as the cut off mark. Since the list so prepared did not contain sufficient number of backward class candidates to satisfy reservation quota, the cut off marks in respect of backward class candidates were lowered. Different cut off marks were fixed for different backward communities. Cut off mark for Scheduled Tribe was lowered to 32, for Scheduled Caste to 45, for Ezhava to 46 and so on. Total 657 backward class candidates who had cut off marks lowered to the extent thought to be necessary by the P.S.C. were also included in the short list. A unified short list was accordingly prepared. The unified short list came to be challenged before the Kerala Administrative Tribunal. The Tribunal rejected the challenge and upheld the unified short list of the P.S.C. Tribunal held that there was no rule which prohibited the P.S.C. resorting to such a course. This decision of the Tribunal was confirmed by a Division Bench of the High Court of Kerala on an original petition filed by the defeated party against the verdict of the Tribunal under Article 227 of the Constitution of India. P.S.C. conducted a descriptive test for all the short listed candidates. Those who came through the descriptive test were made to undergo physical efficiency test. They were thereafter subjected to interview. After the interview the P.S.C. prepared and published a rank list. P.S.C. included many backward class candidates who had been short listed lowering the cut off marks in the main rank list along with candidates who had more than the requisite cut off mark of 49 in the screening test. This action of the P.S.C. was challenged by general merit candidates in the Kerala Administrative Tribunal. The Tribunal held that ‘candidates are brought in by lowering the marks only for the purpose of satisfying the reservation turns and not for considering them in the open competition turns.’ The Tribunal, while setting aside the impugned action of the P.S.C. also held that ‘communities eligible for reservation can only claim those benefits which are expressly conferred by the Rules’ and that ‘there is no general principle of law or fundamental rights to have the benefit of lowering the marks also for satisfying the reservation turns’. The general principle of law relating to reservation in public employment arises from the concept of affirmative action to bring the weaker to a level playing field at par with the stronger, a facet of Article 14 of the Constitution of India. Quintessence of right to equality embodied in Article 14 of the Constitution of India is a basic feature of the Constitution of India⁵. It is a part of Rule of Law and is a common law construct. Rule 14(e) of K.S.&S.S.R. is designed to obtain level playing field for the reservation candidates. Rule 14(e) of K.S.&S.S.R. therefore directly flows from Article 14 of the Constitution of India. The moot point was, however, at what stage and in what manner Rule 14(e) had to be applied in a fact situation. Screening test for shortlisting of candidates prior to descriptive test and physical efficiency test was not part of the Special Rules. Screening test was conducted by the P.S.C. to shorten the number of candidates for its own convenience and to reduce its administrative burden. Lowering of marks in the screening test is not a step contemplated by Rule 14(e) of K.S.&S.S.R.. In normal course and going by the Special Rules all 45,000 candidates who had the minimum educational qualification were entitled to participate in the descriptive test. Facts of the case indicate that many of those who failed to reach zone of consideration for not having the cut off marks in the screening test had they been allowed to participate in the descriptive test and physical efficiency test would have got more marks than the general merit candidates who were included in the ranked list. The lowering of marks in the screen test having been legitimized by the Tribunal and the High Court for the reason of the P.S.C. having not been prevented by any statutory provision and not on account of the statutory power conferred under Rule 14(e) of K.S.&S.S.R. it was in order for the P.S.C. to have applied Rule 14(e) at the time of preparation of the Rank List. “Supplementary List” made mention of in Rule 14(e) of K.S.&S.S.R is obviously the Rank List or Select List and definitely not the “short list”. But the facts of the case indicate that Rule 14(e) was not applied by the P.S.C. at the time of preparation of the Rank List. Challenging the decision of the Tribunal, the reservation candidates took the matter to the High Court and argued that having brought to a level playing field after lowering the marks in the screen test, reservation candidates are entitled to compete with the general merit candidates in the descriptive, physical efficiency test and interview and they are entitled to be reckoned for general merit vacancies as well. The Division Bench of the High Court turned down the argument and upheld the decision of the Tribunal⁶. There was no lowering of marks of the reservation candidates in the descriptive test or in the physical efficiency test as contemplated in Rule 14(e) of K.S.&S.S.R to satisfy the reservation quota. There was also no Rule that those who have been short listed by lowering marks in the screening test should be included only in the supplementary list of candidates for satisfying reservation quota. The decision of the Tribunal and the Division Bench resembles the concept of “separate but equal” propounded by American Supreme Court in Plessy v. Fergusson.⁷ ' In Plessy a lady who purchased train ticket was not allowed to travel in a compartment meant for whites for the reason that she was black. She challenged the action as discriminatory and violating equality clause. The Railway authorities justified their action stating that the lady had been given all facilities which had been given to the whites travelling in a separate compartment and therefore there was no discrimination. The Court accepted the contention and dismissed the case. In Brown v. Board of Education⁸ the American Supreme Court made a departure from its earlier stand in Plessy. In Brown American Supreme Court held that segregation of black students from white students was discriminatory and violated equality clause. To ask backward community candidates to stay on a separate channel meant for them in spite of their higher rank over general merit candidates after competing with the latter in a common descriptive test, physical efficiency test and interview is nothing but to ask them to be satisfied with separate but equal treatment a concept the U.S. Supreme Court discarded in Brown. Backward class candidates thus were segregated and the brand of “backwardness” was cast on them to be carried with them throughout their future career. This is another case of “Differend”.

The increasing number of cases of the nature of “differend” in our Courts and Tribunals is a matter for grave concern. If the trend continues, soon the Courts will lose their image as the guardian of fundamental freedoms of the citizens. It is time to identify such cases and avoid the unfortunate outcome.

Foot Note : 

1. ‘Differend” is a form of adjudication different from litigation. The word was coined by Jean-Francois Lyotard (See: “Differend: Phrases in Dispute”; Translation by Georges Van Den Abbeele; Manchester University Press, 1988).Lyotard explained “differend” as a ‘case where the plaintiff divested of the means to argue and becomes for that reason a victim’. If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages. A case of ‘differend’ between two parties takes place when the regulation of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.” For Lyotard ‘differend’ is opposed to litigation. Litigation is a dispute which can be equitably resolved because the parties involved can agree on a rule of judgment. Lyotard distinguishes a victim from the plaintiff. The latter is a wronged party in litigation. A victim for Lyotard is not just someone who has been wronged, but someone who has also lost the power to present this wrong. This disempowerment can occur in several ways. It may quite literally be a silencing. The victim may be threatened into silence or in some other way disallowed to speak. Alternatively, the victim may be able to speak, but that speech is unable to present the wrong done in the discourse of the rule of judgment. The victim may not be believed, may be thought to be mad or not be understood. The discourse of the rule of judgment may be such that the victim’s wrong cannot be translated into its terms. The wrong may not be presentable as a wrong. One example is that of tribal people. Tribal groups in Australia claim that land which they traditionally inhabited is now owned and controlled by the descendants of European colonists. They claim that the land was taken from them wrongly and that the land should be given to them back. There is ‘differend’ in this case because Aboriginal land rights are established by tribal law. Such rights are not presentable in court as per the law made by Australian Government. The Court which heard the claim of the Tribal people functions entirely according to law made by Australia and the Tribal law is not considered a valid system. In other words though the tribal people of Australia has a case of wrong it cannot be presented as a wrong. This is ‘Differend’ (See: “Lyotard : Internet Encyclopedia of Philosophy; http://www.iep.utm.edu/lyotard/(last visited on 8.11.2014).

2.  Read the judgment reported in 2010 (4) KLT 49.

3. See Judgment dated 30.9.2013 in W.P.(C) No. 22517 of 2012.

4. See Judgment dated 26.5.2014 in W.A. No. 1663 of 2013. 

5.  I.R. Coelho (Dead) by L.Rs v. State of Tamil Nadu  - 2007 (1) KLT 623 (SC).

6.See Judgement dated 8th August 2014 in O.P.(KAT) No.112 of 2014.

7.163 U.S. 537

8.347 U.S. 483