Refusal of its Writ Jurisdiction by the High Court of Kerala

(By  K. S. Ajayakumar, Principal &  

V.D Sebastian, Adjunct Professor, Co-operative School of Law, Thodupuzha)

Can the Kerala High Court issue a Writ Petition against the Government of India located in Delhi? In a matter connected with admission to a Medical College, the Kerala High Court seems to have decided that it is not possible.₁

Anand Anoop, a ward of an official working in the Indian Navy and staying in Tellicherry, applied for a seat in a medical college in Maharashtra. He passed the admission test. He applied to the authorities in Government of India at Delhi for being nominated under a quota marked for defense personnel’s dependents. When reply was not received, and it was feared that the admission would be finalised contrary to the criteria specified in the prospectus, he filed a Writ Petition in the Kerala High Court seeking a direction to the Government of India to decide the issue. A single Judge of the Kerala High Court dismissed the Writ Petition saying that the Kerala High Court has no jurisdiction and the petitioner will have to approach the High Court having jurisdiction over the institute in Maharashtra which conducted the admission test. On appeal, a Division Bench also dismissed the petition on the ground that the facts involved did not attract the territorial jurisdiction of the Kerala High Court, and to compel the Government of India to take a decision the petitioner has to approach the High Court in Delhi. This decision raises an important question regarding the extent of the territorial jurisdiction of the Kerala High Court.

In Election Commission of India v. Saka Venkata Rao ₂ the S.C. had held, reversing a single Judge of the Madras H.C.,that a person residing in Madras had to file a Writ Petition against the Election Commission only in the H.C. within jurisdiction of which the Election Commission was residing (then the Punjab and Haryana H.C.). This would have meant that all Writ Petitions against the Government of India, had to be filed only in Delhi.This would cause hardship and loss for the people residing in different parts of India. Such a situation would also have been against the spirit of federalism, particularly when there is only one integrated judiciary in India, unlike in the U.S.A. where federal jurisdiction is available in every State. To set right this situation, the Constitution 15th Amendment Act, 1963 provided that the High Courts in whose jurisdiction “the cause of action, wholly or in part, arises” might also exercise the writ jurisdiction against Government of India₃. In the face of this provision, it seems  that the Kerala H.C. can exercise writ jurisdiction over the Government of India, if the cause of action, wholly or in part, arises in Kerala.

In the judgment under reference, there is a discussion about the difference between “Cause of action” and "Right of action”₄. Both are different. The right of action arises from the cause of action. The cause of action consists of the facts which have to be proved for seeking the right of action. Thus  the cause of action gives rise to right of action. Ex facto oritur jus.

What is the right of action of the petitioner, Anand Anoop, in the present case? He has applied to the Government of India for recommending his name for admission to a medical college in the quota for defense personnel. The Government delayed in taking a decision. If the decision is made after the admissions are closed, his entire efforts would be frustrated. He seems to have a right to compel the Government of India by a writ or direction in the nature of mandamus. If one analyses this right the following ingredients will be apparent viz., the duty of the Government of India to the applicant to decide in the right time, the matter, regarding his interest(the res of the right) in medical college admission₅. What is the title (fact or facts) of his right to ask for a mandamus or the facts that would give rise to mandamus.?

The act of applying is connected to two jurisdictions. It originated in Kerala (within the jurisdiction of Kerala High Court) and ended in Delhi, where it was received.  Delhi is not ordinarily within the territorial jurisdiction of Kerala High Court. When an act originates in one unit of space and terminates or its effects are felt in another unit of space, in which unit or space, the act has taken place? The policy of the legal system can decide this. It may be where the act begins or where it completes or in both or in neither. The purport of the amendment of Article 226(2) seems to be that, in a case like this the High Court within the jurisdiction of which the applicant resides and from where the application is sent may also exercise the writ jurisdiction.          

When he has applied from Kerala and the application has been received by the Government of India at Delhi, sufficient facts to seek a mandamus seem to be present and part of the cause of action has arisen  in Kerala since he is residing in Tellicherry and he filed his application from Tellicherry within the territorial jurisdiction of the Kerala H.C. So it is not clear how the Division Bench could have said, "we do not think there is any fact, having a nexus to the territorial limits of jurisdiction of this court, which the appellant would have to prove in order to establish his right to a fair consideration of his candidature for nomination”.₆ What additional fact that would have entitled the petitioner to seek mandamus is not made clear. The cause of justice would have been better served if this has been clarified.

Perhaps, the difficulty has cropped up from the use in Art.226(2) of the  Constitution, the phrase, ‘the cause of action wholly or in part’.  If the authority against which the writ is issued is not present within the territorial limits of the H.C.so many problems for enforcement may arise. So the central question to be considered would be whether the authority or person is present within the jurisdiction. On a fair basis, and technically, the Government of India is present within the territorial jurisdiction of every H.C. while the same cannot be said with regard to other State Governments. In many cases, where the writ has been sought in one H.C. it was sought against another Government₇ and in such cases the refusal of jurisdiction would seem to be justifiable, though, perhaps, not on the words used in Article 226(2) but on a more conveniently workable principle. If, instead of extending the jurisdiction of the H.C. based on cause of action ‘wholly or in part’, it is provided that the Government of India is deemed to be present within the territorial jurisdiction of every H.C., for the purpose of the writ jurisdiction, the hardship created by Saka Venkata Rao case would be amply rectified. The confusion which seems to be prevailing now can be cleared by an authoritative pronouncement by the Supreme Court or an amendment to Article 226(2).

A layman, and particularly the petitioner’s father, a naval official on the seas , dedicated in defending the mother-country, may feel that confused technicality has defeated ends of  justice.

2014 (3) KLT 324 - Biju v. Mercy 

A  Milestone  Judgment  Relating  to  Legal  Position  Regarding Refusal  of  Permission

to  Sue  as  an  Indigent  Person (Order XXXIII Rule 1 C.P.C.)

 (By P. Arunkumar, Advocate, High Court of Kerala, Ernakulam)

1. His Lordship Justice V. Chitambaresh has pronounced a very important judgment on the above captioned subject. In the case before His Lordship, there was evidence regarding the income of husband and based on 2011 SAR (Civil) 614 (Mathai M. Paikadey v. C. K. Antony) His Lordship allowed the Writ Petition finding that the petitioner in the indigency petition had means to pay court fees for the suit and had given time to pay court fees. For this, His Lordship has also quoted a passage from American Jurisprudence, which was also found in the said judgment of Supreme Court 2011 SAR (Civil) 614. It was in that situation and facts in that case, His Lordship, had confined the judgment only on the aspect of income of husband and there was no need for going further into other aspects mentioned in the judgment of Supreme Court 2011 SAR (Civil) 614 (Mathai M.Paikadey v. C.K.Antony = 2011 (13) SCC 174 = AIR 2011 SC 3221 = 2011(3) KLJ NOC 11. Besides the income of husband and wife living together, as a single unit, their combined financial assets may be warranted for the purpose of determining a party’s indigency status in a civil proceeding, there are other instances also mentioned in the judgment of Supreme Court to negative the claim of indigency of a party.

2. Para 18 of the judgment 2011 SAR Civil 614 which is extracted below would elucidate the point.

“18. To sum up, the indigent person, in terms of explanation I to Rule of Order 33 of the Code of Civil Procedure, is one who is either not possessed of sufficient means to pay court fee when such fee is prescribed by law, or is not entitled to property worth one thousand rupees when such court fee is not prescribed. In both the cases, the property exempted from the attachment in execution of a decree and the subject-matter of the suit shall not be taken into account to calculate financial worth or ability of such indigent person. Moreover, the factors such as person’s employment status and total income including retirement benefits in the form of pension, ownership of realizable unencumbered assets, and person’s total indebtness and financial assistance received from the family member or close friends can be taken into account in order to determine whether a person is possessed of sufficient means or indigent to pay requisite court fee. Therefore, the expression “sufficient means” in Order 33 Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fee.”

3. Finally the Supreme Court has widened the scope and meaning of the expression “sufficient means” to the ability or capacity of a person in the ordinary course to raise money by available lawful means to pay court fees.

4. For arriving at the above aspect, the defendant, who opposes the indigency application, has the right to invoke Order 19 Rule 2 C.P.C. and cross examine the deponent plaintiff.

5. One thing has to be remembered at this juncture, that is, one has to gather information about the avocations and income of the relatives of the deponent plaintiff and also of his close friends, who will in the normal course help the deponent to pay the court fees. For example, if a husband, son or sons or daughter or daughters or close relatives, has sufficient means, in the normal course, one can expect help from such persons.

6. Since there was no necessity to look into this aspect (except the income of husband) His Lordship had not dealt with this point in his brief but effective judgment.

Presumption and Proof of Death under  the Evidence Act -- 
An  Analytical  Study

(By Biju Menon K., Principal Sub Judge, Kozhikode)

Civil courts are at times called upon to deal with the property of a person who is not heard of for seven years by those who would have, in natural course, heard of him if he was alive. The legal requirement, though not mandatory, will be to draw a presumption of his death and proceed accordingly. This situation used to crop up regularly in courts decades ago when means of communication were regular, though not accurate.

Sections 3, 4, 107, 108 and 114 of the Evidence Act deal with this situation:

Section  3  as  regards  proof  of  a  fact -

A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Section 4: “May presume” - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

“Shall presume” - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

“Conclusive proof” - When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Section 107: Burden of proving death of person known to have been alive within thirty years - When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

Section 108: Burden of proving that person is alive who has not been heard of for seven years - (Provided that when) the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is (shifted to) the person who affirms it.

Section 114:  Court may presume existence of certain facts - The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 

For the factum of death to be proved, the court should believe in its existence or consider it probable enough that a prudent man acts on it. The burden of proving a fact as per Section 101 of the Evidence Act is on the person who wants the court to give a verdict on the same. Therefore, without doubt, the burden of proving that a person is dead is on the person who affirms it. He can do it by adducing evidence, direct or circumstantial. Direct evidence can be in the form of oral accounts by those including him who are directly aware of the death. It can also be by production of documents like death certificate, postmortem certificate etc. Circumstantial evidence with the aid of “last seen theory” and like is also admissible. But what if there is no such evidence as to his death? The law cannot leave such a situation to naught. This is where sections 107, 108 and 114 of the Evidence Act come into play.

Sections 107 and 108 deal with burden of proof and the consequent presumptions arising out of the discharge of that burden. Presumption is drawn not under these sections, but under section 114 of the Evidence Act. As per section 114, the court may presume the existence of a fact which it thinks likely to have happened in the common course of natural events and human conduct. Therefore, the court can, upon the successful discharge of the burden cast under section 107 and 108, draw a presumption that a person who did not contact his near relatives for seven years is dead. The rationale behind this is that in normal human conduct, a person will not shy away from his relatives for a long period of seven years. 

But the presumptions drawn as above will not automatically lead to the proof of his death. For this, there should be materials for believing its existence or solid circumstances leading to its probability, in relation to the prudence of an ordinary man. The presumption drawn under Section 107 and 108 may not always lead to that.

Therefore, the successful discharge of the burden under sections 107 and 108 and the consequent presumption under section 114 of the Evidence Act are not substitutes for proof as regards the death of a person. It can at best hold ground under Section 4 so long as the death is not disproved. Since the presumption is rebuttable, it can easily cover a situation where the person returns and says that he was on a self assumed oblivion. According to me, sections 107 and 108 are intended to cover situations where death cannot be proved as in the case of facts ordinarily capable of proof, and for moving forward when a situation under them arises. If such presumptions are not available, society will grind to a standstill.

At times when longevity was limited and travel was a luxury, when family ties were stronger, when many persons embarked on pilgrimages in the later stage of life, when people accepted death in religious perspective, application of presumption was almost a routine matter, primed by caution and prudence. Reported decisions would show that there were ingenious and invidious men and means in those days to deceive courts in such cases. In 21st century, when it is very difficult for a person to remain incognito, courts ought to be more wary in invoking sections 107/108/114. Of course, there is no guarantee that Sukumarakurup situations will not recur or that false identities are impossible to acquire. There is also no purpose in overlooking the increasing number of unidentified corpses lying around. Modern techniques for identification of persons may not clinch the issue in all cases. Ultimately it will be for the Court to decide whether a presumption should be drawn in a given case, keeping in mind that the adage “Dead men tell no tales” may not hold good forensically.

Justice Thomas P. Joseph - who Retired from Service on 17.7.2014

N. Subramaniam, Advocate, High Court of Kerala

1. Socrates once narrated the good and essential qualities of a good Judge. A good Judge should be one (1) who hears courteously (2) who answers wisely (3) who considers soberly (4) who decides impartially and I would add another pre- requisite that is who decides without delay. It would appear that the qualities propounded by Socrates, centuries back fills in exactly with the qualities and qualification of the learned judge.

2. Justice Thomas P. Joseph was always having a smiling face while sitting in bench or outside

3.  His knowledge of law both Civil and Criminal is well acclaimed. For every point of lawhe would site authorities, which are not even cited by the Councels.

4.  The decisions rendered by Chancery Division, House of Lords, Privy Council, Supreme Court etc., are at his finger tips. Every Judgment of His Lordship stands testimony to his vast legal knowledge.

5. For junior lawyers, his Court was a God given gift and his help towards juniors is proverbial .

6. In fact, this writer himself had the privilege of getting many citations on different aspects of law.

7. The writer, joins with others, bows before the Tower of Legal Acumen and Intelligence.