What  Sin  I  Have  Committed ?

(By A.S.P. Kurup, Advocate High Court of Kerala)

I am beautiful to look at and handsome indeed. I stood in the courtyard of Ram Mohan Palace for many summers and prolonged winters, enjoyed the cosmic rays during every sunrise and sunset, moonlight was showered in abundance upon me and torrential rains washed mud and dust from my body and I remained clean and calm for years. My body is made of monumental alabaster. Nothing is known about that fertile and aesthetic mind which once upon a time conceived me and translated and transformed to the present shape. Even the creative hands and the blessed fingers that carved me to a final shape is no more and not known now. What remains is what I am today as chosen and chiseled to perfection personified.

I saw the bloom and blossom of many young lawyers and their transformation into shape of Titans or decline as Pigmies in profession; jubilant elevation of judges and the inevitable retirement and further retreat in life; heard the sad life stories of many clients; chit chat of clerks waiting for daily list of cases, enjoyed the eternal fragrance of flowers around me and witnessed the withering away of petals and the fluttering of dry and dead leaves during cool, desolate summer darkness and always remained as a silent spectator of time and space.

Alas! On a fatal day, few musclemen came with tools and rope and suddenly lifted me from the place where I stood for many years. My joy was boundless, turning to bliss and culminating as ecstasy, as I thought for a moment that my ardent lovers and best wishers are shifting me to the new High Court compound and erect me in the beautiful garden of that majestic mansion to form an integral part of it. But it was a vision and a dream of momentary existence.

To my great shock and surprise I was removed to a corner of the compound and made me to stand there and witness the construction of the new chamber complex. I trembled during the pile driving and got perplexed when metal and cement fell on my pure body. I consoled myself that, at least when the construction is over I will be given a place in front of the chamber complex. Alas! It was a hope in vain.

During the period of the whole construction my body was covered with old tarpaulin and tightly packed with rope and every moment I felt that I am going to be placed in a dark coffin to be buried in a grave yard. But I am not buried so far. I survive with my perpectual agony and anguish,   eternal    misery   and   endless   suffering   and suffocation without any free air and water being the gift of God and Nature.

Oh! My beloved Chief Justice and the compassionate companion Justices, Oh my Advocate General, a born artist destined and engaged to resolve the riddles of the State, Oh my President of the Advocates’ Association walking ahead of many thousands of members bestowed with legal brain and consisting of connoisseurs of art, lovers of nature, political philosophers and philanthropists, writers and poets.

Oh my beloved ones! Please come to this neglected spot, think of me at my best and listen to the subdued voice of a throbbing heart and wipe off the hot tears that flow from my eyes. Absent thyself for a moment from your daily legal battle in court rooms and liberate me from this endless bondage of solitary confinement.

Ye, Gentlemen! I constantly cry and appeal to your head and heart for mercy. It is a cry in wilderness, unheard and unnoticed by all. What sin I have committed to you for this eternal suffering and perpetual suffocation. Can any one console, salvage and liberate me?

At least remember that I am a piece of art which purifies mind, sublimates passion and takes the sole to an ethereal plane, where there is nothing but ecstasy.

At last I console myself “if Winter comes, can Spring be far behind?”

Chandra Mohan v. Surendran  -- 2013(3) KLT 269  - An Academic Review

(By T.G. Michael, Advocate, High Court of Kerala)

In the above decision a Division Bench of the Kerala High Court has dealt with the effect of Section 13 of the Transfer of Property Act. The question involved in the case  was about the effect  of a  Gift Deed created by a Father  gifting an item of immovable property in favour of his wife and for the benefit of future children born to him in the wife. The rival arguments mainly advanced by the parties appears to be that the appellant took the position that when a transfer of immovable property is effected by a gift deed  in favour of the  living wife and future unborn children,  the transaction is hit by Section 13 of the Transfer of Property Act and the net outcome will be that the wife will get the full rights and title in the property since the future children are not born or in existence at the time of transfer. At the same time the contention of the Respondents  appear to be that the said portion of the conveyance gifting the property in favour of future children would take effect in the sense that it could be construed as the creation of a trust in favour of the children to be born in the said wife making the latter as the Trustee  and the resultant situation would be that the property would be taken by the mother in half  moiety and the future children together would take the other half. The Hon’ble Court appears to have accepted the second view. My humble view  is that the said view adopted by the Court is not the correct application of the law in the matter  for more than one reason. 

First of all I feel that in the  creation of Trust, the Trustee will be the owner of the property who will hold it for the benefit of the beneficiary. The ownership will never vest with the beneficiary by efflux of time or operation of  law  without transfer inter-vivos. So it cannot be held that the future children would take the property as co-owners with their mother. Even though the Court refers to Section 9 of the Indian Trust Act, that section only says that any person who is capable of holding property can be a trustee. 

Secondly I feel that the effect of Section  14 of T.P. Act should have been  in the reckon at the bar. The Rule against Perpetuity contained in Section 14 of the T.P. Act lays down that a transfer of property cannot be extended beyond the life time of a person living and the minority of the person to be born. Gift of immovable property also being a transfer, S.14 would apply to the gift in question and so considering, the transfer in favour of future children would have no effect. 

Thirdly the Hon’ble Court appears to have been carried away by a notion that  what is contemplated in Section 13 of Transfer of Property Act is a transfer in parts or fractions of the property with remaining parts in favour of unborn persons. But what is contemplated in Section 13 is transfer of a prior interest in favour of a living person with transfer of the remaining interest in favour of the person to be born.  In other word a limited estate is created in favour of the living person, which would take immediate effect with deferring of the vesting of remaining interests in the person to be born. My humble view is that the above legal principles should have unfolded at the bar in the consideration of the issues in the case.

Some  Thoughts  about  an  Immortal  Giant

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

“An accomplished lawyer, an acclaimed judge and jurist, friend, guide and philosopher, a role model to everyone” will be insufficient clichés to describe late Sri TLV.

As an individual, he belonged to the category of God’s rare gift to society, as a person who could never be found fault with.

My first meeting with TLV was in late 1970s, when my father used to ask me to run errands between them. My association with him developed further after I joined the bar. He was always ready with more than one answer to any legal problem, each answer supplementing the other so that there could not be any other or better answer. Believe me, some of us were discussing the mechanics of elevation and prospects of the proposed Judicial Appointments Commission a couple of weeks ago. The participants were unanimous that TLV was one of the last few judges elevated only on the basis of pure and sheer merit. His love for the bar was so great that he tried to avoid elevation, but had to succumb to the affectionate compulsions of well wishers and overwhelming professional inevitabilities prevalent in the system.

He did full justice to all the roles he had to play in life, with dedication and perseverance. I wish there were more of his kind. The arena of lawyers and judges has been phantasmagorical during last 50 years. The aura generated by generations of masterly lawyers attached itself to TLV most admirably, who graciously carried it as a torchbearer. He had maintained that mediocrity had no place in the profession.

His quest for the right answer was untiring, a fact spoken to by his immense library and long hours at office. His matter-of-fact approach to problems and realistic solutions thereto disarmed his opponents. His scholarly arguments, as a lawyer, were likewise matter-of-fact. His reaction to unacceptable propositions was politely cautious. His criticism of judgements was rare, voiced only on unavoidable occasions. I cannot recall a single instance when he criticised any judge. He believed in ensuring that juniors went to court only after fully arming themselves to go to war. Though he was an all rounder, his heart had a special place for tax laws.

I recall, with fascination, the immaculate dignity and poise with which TLV carried himself, from our first meeting till we met last. His candid manners as an advocate and judge and as an advocate again won him ready acceptance everywhere. I believe he was the only lawyer from Kerala who gained rare appreciation from the apex court at a very young age. His reputation and acceptance at Supreme Court boosted the confidence of the trickling-stream-of-Kerala-lawyers into a torrential exodus to Supreme Court.

As a lawyer, his grasp of law was immeasurable. As a judge, his application of law was intense. Discipline, on the bench and off it, was a quality he emphasized and practised. I may not be misunderstood when I write that he foresaw the declining standards beginning to roost in the system and tried his best to prevent the malady. An ever pleasant judge, his judgements were precise, without overlooking facts or forfeiting precedents. It was not in his nature to dampen a lawyer’s enthusiasm by reacting sharply to an erroneous proposition or to short-circuit his arguments. His view was that a client should know from the judgement how his case was argued and understood, why it was decided in a particular manner. 

As a lover of fine arts and social service, his involvement and contribution were unlimited. The legal fraternity and public showed their regard for him on the occasion of the public reception hosted in his honour, when they turned up en masse and thronged the auditorium. I do not think another lawyer or judge will ever find such joint acceptance.

    Addressing the Judges

(By S.A.Karim, Advocate, Thiruvananthapuram)

Media reports one 75 year old Shiva Sagar Tiwari moved a public interest litigation petition to the Supreme Court. He wants to do away with “my lord”, “Your lordship” “your honour” and the like from addressing the Judges. He continues these addressing words are the relic of the colonial era and a sign of slavery. It is against the dignity of the country. The bench consisting of Justices D.L Dattu and S.A. Bobde suggested the courts need some respectable addressing system like Sir. It is strange, an advocate who spent his life time in the judiciary came for a change in addressing the courts.

Apart from my lord, your lordship, and your honour, what about advocate’s collar and band. What about the over coat, pant, gown and shoes. Advocate themselves and the Judges address the advocates 'the learned counsel'. Are these not relic of the colonial era, a sign of slavery and against dignity. What about our major law books. The Civil Procedure Code 1908, Indian Evidence Act, 1872 and Indian Penal Code, 1860 and a host of other laws are the colonial contributions. Are they not relic of the colonial era, a sign of slavery and against dignity. Even the functioning of courts are similar to that of British courts. It is true, there are amendments, but the basic is the same. If one agrees with the litigant, the entire system needs change lock, stock and barrel. Our President and Governors are addressed “His Excellency”, and our Ministers are addressed Honourable Ministers and our Mayor is addressed “Worshipful Mayor” and the like. Are these not   relic of the colonial era, sign of slavery and against dignity.

One has to understand, before the colonial era, we had no such system. What is now we see around is the contribution of the colonial era. We have now an addressing system of the dignitaries. It is internationally recognized and accepted. In the absence of a better addressing system, it is just and proper to continue that system. So, my lord, your lordship, your honour and the like have to continue in the judiciary as well as other institutions.

The  Kerala  Conservation  of  Paddy  Land  and  Wet  Land  Act,  2008 -- 

Dilemma  of  the  State  and  Agony  Faced  by  Land  Owners

(By T.S. Murali, Ottapalam)

Lester Brown, the great environmentalist said, “we have not inherited this earth from our fore-fathers, we have borrowed it from our children, we have to preserve the universe and the environment for the benefit of the future generation. Aldo Leopold, the American ecologist said, “we abuse land because we regard it as a Commodity belonging to us. Only when we see land as a Community to which we belong, we will begin to use it with love and respect”.

The Kerala Land Utilisation Order 1967, ‘KLU’ in short as is known popularly and dreaded and feared by the people all over the State was issued by the Government of Kerala in exercise of the powers conferred under the Essential Commodities Act, 1955 and with the prior approval of the Central Government. KLU Order was issued for the preservation of food crops like paddy, fish, sugarcane, vegetables, tapioca, yam, tea, coffee, cardamom, pepper, groundnut, cocoa and banana in the State. Such a legislation was essential in many States considering the circumstances which existed in the country during the Sixties. Food security and eradication of poverty was utmost in the mind of the leaders, the ‘peerless giants” of our country in those times.

Into the 21st century, with improved infrastructure, transport facilities and higher per capita income, we import many food crops from other States and even neighbouring countries. Other States depend on our State for their requirements of Rubber, Spices like Pepper, Ginger, Cardamom, Betel leaves, Arecanut, Beverages like Tea, etc. Being a part of the Union of India, inter-dependency of States for their day-to-day requirements of food, materials and even labour has become the order of the day.

Due to non-availability of proper farm labour and high wages, farmers and landowners felt that sustained paddy cultivation is not economically viable and hence they shifted to more remunerative crops. Children of the farming community as well as the middle class who had agricultural land in their possession aspired for higher education and went after white-collared jobs and many went abroad in search of greener pastures. The elite class of landlords lost most of their cultivable land due to the Land Reforms legislation in the States. The younger generation lost interest and the passion showed by the older generation in Cultivation and Plantation. Kuttanad and Palakkad were said to be granaries of the State, but the situation changed during the last few decades. In Alleppey district, paddylands were used for ‘prawn’ cultivation since it’s export brought the much needed foreign exchange to the State. What is left are a few Planters and Cultivators who took their occupation and profession seriously. The area under rice cultivation drastically declined and the conversion of paddy fields and wetlands led to ecological degradation in watershed regions and reduction of water level in wells and ponds. The Government was a mute spectator to all these activities since there were no penal provisions and penalties in the KLU Order, 1967 and all that was stipulated was that conversion without the permission of the District Collector was prohibited. After much hue and cry from the paddyland, wetland and nature lovers, the State came out with a new Act in  2008.

The Kerala Paddyland and Wetland Conservation Act, 2008 was introduced with the laudable object of conservation of paddyland and wetland in the State. In the Preamble of the above Act, it has been clearly mentioned that, ‘whereas it has come to the notice of the Government that indiscriminate and uncontrolled reclamation and massive conversion of paddyland and wetland are taking place in the State and whereas there is no existing law to restrict effectively the conversion or reclamation of paddyland and whereas it is expedient in public interest to provide for the conservation of paddyland and wetland and to restrict the conversion or reclamation thereof, in order to promote agricultural growth, to ensure food security and to sustain the ecological system in the State of Kerala, be it enacted in the 59th Year of the Republic of India. 

The Preamble of the above Act proves beyond doubt that the implementation of the earlier KLU Order, 1967 enacted with the same objective was a complete failure and it could not restrict effectively the conversion or reclamation of paddyland and wetlands. For the sake of argument, we can say that there is adequate food security in the State since our neighbouring States are providing it. When we take the nation as a whole, inter dependency of States is within the domain of the Union of India. However, prevention of conversion or reclamation of wetlands and to sustain the ecological system assumes greater importance since it is impracticable to depend on other States for our water requirements.

Thomas Fuller, the English historian has said, “we never know the worth of water until the well is dry”. Acute water shortage is the biggest danger to human civilisation. The Government lacks the will and determination to protect the rivers, water lagoons, lakes in the State. When we spend thousands of crores for the development of infrastructure facilities in the State like the ‘Metro railway’ and ‘Highways’, the construction of ‘Bunds’ in rivers and protection of water lagoons and lakes from effluent wastes is conveniently forgotten. Agricultural wetlands, village ponds, large lakes, etc. are essential for the conservation of plenty of bird-species like storks, cranes, kingfisher, ducks, etc; to name a few.

Confucius, the Chinese philosopher has said, “only the wisest and stupidest of men never change”. Things done cannot be undone, but it is never too late to mend. Just like a squeaky wheel gets the grease, the new Act for the conservation of paddyland and wetland can be strictly implemented unlike the KLU Order. Section 19 to 25 of the Conservation of Paddyland and Wetland Act, 2008 clearly provides for penal provisions in case of violation by any person contravening the provisions of the Act. Such persons can be punished with imprisonment for a term from six months to two years and with fine ranging from Fifty Thousand to One Lakh rupees. Section 5 stipulates that there shall be a Local Level Monitoring Committee in each Panchayath or Municipality consisting of members including the Chairperson of the Panchayath, Municipality or Corporation, Agricultural Officer, Village Officer and three representatives of farmers in the area.

Being mandatory under Section 5(4)(i) of the Act, the Government has prepared what is known as the ‘Data Bank’ which must consist of details of the cultivable paddyland and wetland in the State. It is common knowledge that the above said committee members never prepared the ‘Data Bank’ after due inspection of the land and it was simply copied from the data available in the revenue records. A proper inspection by the above Committee could have brought into record the thousands of hectares of land lying as fallow and uncultivated with paddy in the State. Section 15 of the Act stipulates that the Committee may direct the holder of any paddyland which is uncultivated and-left fallow to cultivate it by himself or through any other person of his choice with paddy or any other intermediary crops under the provisions of the Act. However, the government machinery has miserably failed to enforce this mandatory requirement. Minor irrigation projects in the Taluk level whereby water in the rivers are diverted to canals and pumped into the paddyflelds remain a distant dream. When there is scarcity of rainfall, the paddyland cultivators are not able to sow and reap the second harvest every year.

Eminent lawyer, Late N.A.Palkhivala described the four costly failures of the Government as follows : “Too much Government but too little administration, too many public servants but too little public service, too many controls but too little welfare and too many laws but too little justice”. A few landowners remain in the State whose paddyland or wetland were converted long back before the enactment of the 2008 Act and is now neither a wetland nor fit for paddy or food crop cultivation. They have become drylands or what can be described as ‘re-claimed purayidam’. Irrigation facilities are not available in these drylands for paddy cultivation and they consist of timber yielding trees, coconut trees, arecanut trees, etc. However, the revenue authorities under the State claim that they are still under the purview of the Paddyland and Wetland Act because the description of the land in the revenue records and the title deed is ‘Nilam’ (Paddyland). The Local Level Monitoring Committee under the Act does not accept applications from the public for errors in the Data Bank, until and unless the Hon’ble High Court directs the landowners to approach the above Committee. The dilemma faced by the above landowners are being solved to a great extent by what can be seen from the judgments of the Hon’ble High Court of Kerala after the enactment of the 2008 Act. 

The Hon’ble High Court of Kerala has held that mere description of an item of property as ‘Nilam’ (paddyfield) or Wetland in revenue records is not conclusive and that the Statute operates on the basis of ground realities and not on the quality of land depending on its description in the title document (Shahanaz Shukkoor v. Chelannur Grama Panchayat (2009 (3) KLT 899). The Division Bench of the Hon’ble High Court also held that those who have converted paddyland prior to the commencement of the 2008 Act cannot be called upon to restore such land to paddyland under the Act. It was also held that whether paddyland or wetland has become unfit for cultivation viably, such land should be permitted to be converted for suitable use instead of allowing it to be retained as waste land (Jafarkhan v. K.A.Kochumakkar & Ors. - 2012 (1) KLT  491).

The Hon’ble High Court also held that if the property is a dryland situated in a thickly populated residential area, but wrongly described as Wetland (Nilam) in the title deed and the Basic Tax Register (BTR), it will not come under the purview of the Paddyland and Wetland Act. Since there is no cultivation, KLU Order, 1967 also will not apply (Jalaja Dileep v. R.D.O. and Ors.  - 2012 (3) KLT 333). If holders of such land have applied for a building permit in the respective Panchayath, Municipality or Corporation, then a question regarding grant of building permit has to be decided taking into consideration about the ground reality existing in the land. (Mohammed Abdul Basheer v. State of Kerala - 2012 (3) KLT 86).

The Executive adopts an approach that marks much of the difference between the rule by law and rule by fiat. A Petitioner approached the Hon’ble High Court with an interesting case. He purchased 206 Ares of property in Marayur Village pursuant to an ‘Auction Sale’ conducted by The Deputy Tahsildar (Revenue Recovery). After demolishing the old Marayur Paper Board Building situated in the property, when he tried to construct a new building, the revenue authorities declined to give sanction stating that the property is remaining as ‘Nilam’ in the revenue records. The Hon’ble High Court gave the much needed justice to the Petitioner by directing the revenue authorities to change the classification of the land in the Basic Tax Register. (K.V.Sekaran v. The Sub-Collector, Devikolam &  Ors., W.P.(C).No. 14290 of 2012(1).

Another petitioner approached the Hon’ble High Court with the grievance regarding the rejection of his application for a ‘No Objection Certificate’ to open a retail outlet of petroleum products. The land concerned had an extent of 14.20 Ares and his contention was that land is lying as fallow for more than 30 years and the neighbouring properties on all sides were drylands cultivated with coconut, rubber, etc. The Regional as well as the State Level Monitoring Committee declined his application for conversion of the said plot by filling with soil. The Committee rejected the petitioner’s application stating that there is no public purpose involved and without ascertaining the present nature of the land. The Hon’ble High Court held that permission of the State Level Monitoring Committee is not necessary as the petitioner’s land will not come within the purview of the Act. The Hon’ble High Court gave the much needed justice to the Petitioner by directing the revenue authorities to change the classification of the land in the Basic Tax Register. (Kuriachan Paul and Ors. v. State of Kerala and Ors. (W.P.(C).No.3976 of 2012(V).

Plato once said, “How could they see anything but the shadows if they were never allowed to move their heads”? If the above genuine cases are caricatured by the revenue authorities as a ploy by the Land Mafia or interested parties to refill the land and request for change in classification, then justice will become a casuality. Responsible Governments should not run away from the realities of the present day faced by the society. Lack of proper legislation has resulted in the multiplicity of litigations in Courts and has created unrest in the Society. The Legislature should not shut its eyes to those realities in public interest. There are newspaper reports that the United Democratic Front has constituted a sub-committee to recommend amendments to the Kerala Conservation of Paddyland and Wetlands Act to bring more clarity in the matter of disposal of certain categories of land. People are facing many problems owing to the lack of clarity in some of the provisions of the Act. Many changes had taken place in the utilisation pattern of land. In many cases, land classified as cultivable had been residential property for decades. There is much confusion about the power to give sanction for conversion of such lands. The present Government has recommended a competent authority to deal with such complaints.

In some of the above cases, though the land is classified as ‘Nilam’ in the revenue records, the Government has classified them as drylands and ‘Fair Value’ fixed accordingly under Section 28A of the Stamp Act, 1959 (Kerala). The Revenue Divisional Officer (RDO) is the authority under Section 28A of the Stamp Act who has fixed the fair value of the land according to the geographical lie and nature of the land such as, dry, waste, wet or garden land. The Government wants more revenue by way of Stamp Duty at the time of Sale and Re-Sale, but at the same time does not allow these drylands (classified as wetlands) to be utilised for residential or commercial purpose.

T.S. Eliot, the famous English poet has said, “Wisdom must not be lost in knowledge and knowledge must not be lost in information”. A good Government must be sensitive to the needs of the people. A Government cannot stand detached from reality and the undercurrents of the society. They cannot stand holding themselves totally apart from the Community.