"Advocates' Welfare !"  or  "Advocates v. Welfare"? 

(By Jamsheed Hafiz, Advocate, High Court of Kerala)

For any practicing lawyer, “Enrolment” is the vertebrae on which, a band is tied and a gown over a coat is clad. The word when conceived brings a smile on our face, which immediately takes us back to the happier memories of the day before. For many, it starts with the memories of their parents, relatives and friends who blessed them for a bright beginning, together with few confident lectures on maturity and ends up with the funniest things done in excitement of the next days’ enrolment. For many others it starts in revelry. They always wondered, why people honour them for their few years’ lethargic, ill-disciplined and unworried life until they realise the fact that they have chosen a group to survive, where only the “hard workers survive”.

But quite often the love for the above word is never recollected, maybe because of the early years of professional struggles or busy and serious commitments together in life and profession. Whatever, how many of us realised that together with the application for enrolment we have also to fill up a form for obtaining membership in the Advocates Welfare Fund (Membership under the Central Act). Though we become a member of the Central Welfare Fund with enrolment, one may also ‘choose’ or ‘unintentionally’ become a member of Kerala Advocates Welfare Fund (“unintentionally” because some organized bar associations take care of the membership to the above welfare fund in the beginning along with the membership to the association and usually the lawyer realises it only after completing his first two years of free membership period). That may or may not be, only those who vanquish the thorny paths of early career, stays for another few years! Inspite of the first five years of hard work, still if you are unable to satisfy yourself, you may start preparing a ‘Resume’. When placed outside the world of advocacy, you may come to know that your membership to the “Welfare Fund” will help you to get some money provided you qualify for a ‘Cessation of Practice’. May be because of the easy accessibility or comparatively faster availability, it is seen that the lawyers satisfying the conditions of ‘Cessation of Practice’ opt only for the amount payable from the Kerala Advocates Welfare Fund. Five years of hard work and less money, develops a starving mind which will immediately satisfy the conditions for a ‘Cessation of Practice’, by a letter or intimation to the Kerala Bar Council before they leave for their better option.

I am reminded of the humorous narration of the Civil Giant and genius, Advocate Late Vijaya Raghava Warrier, who completed his fifty years of active practice at Tirur bar, once said “ if a person practice as a lawyer for 5 years and then decides to quit and join some other service, he will definitely be back in another two or three years because, on practicing for five years, he becomes addicted to ‘laziness’ and ‘easy money’ and hence he will not be competent for any other work”. When his words are simplified; “on practicing for 5 years, an advocate will becomes a good for ‘nothing’, but for ‘advocacy’”. So now when any lawyer decides to have a comeback to his old uniform, obviously, he needs a re-entry to the Rolls of Advocates before any High Court. Here awaits the  Enrolment!!!!!

I personally know, a very good hard working lawyer, who was compelled to end his practice because of his personal problems. He then happened to satisfy a “Cessation of Practice” and obtained some amount of money from the Kerala Advocates Welfare Fund, with which he began his life at Chennai. Fate haunted him again and he was constrained to shift his residence to Cochin. Cochin compared to Chennai had only a lesser exposure for a Bachelor Degree in law, which compelled him to opt for a re-entry into the Rolls of Advocate in the State of Kerala. The application for enrolment filed was initially not acted upon. Aggrieved by the inaction on the part of State Bar Council, the lawyer through his friend approached the honourable High Court of Kerala with a Writ Petition. He obtained an order of “time bound disposal of the application for enrolment” (popularly known as Consider P2). The said application was then considered after formally hearing the said lawyer. Later the Bar Council allowed the application on a condition that the lawyer should pay the entire amount obtained from the Kerala Advocates Welfare Fund with interest. In dire straits, he opted to challenge the above conditional order. A Writ Petition moved was successfully dragged for 7 long years and ultimately he decided to engage a senior counsel for obtaining a chance of hearing. Inspite of the appearance of the senior counsel and obtaining specific postings, the matter always happened to be listed far below the queue. At last, with a timely intervention of a Hon'ble Single Judge before a fresh enrolment to be held in the year, when coupled with the mistake of  the registry, Senior counsel obtained a chance for hearing the lament of a Law Graduate.

The Acts, namely, (1) The Advocates’ Act, 1961, herein after called as “The Act’(2) The Advocates Welfare Fund Act, 2001(Central Act) herein after called as the Central Welfare Fund Act, (3) The Kerala Advocates Welfare Fund Act, 1980 and its Rules 1981 herein after mentioned as Kerala Welfare Fund Act/Rules (4) The Bar Council of India Rules,1975 and (5) The Kerala Bar Council Rules, 1979 were placed for their turns.

The Learned Senior Counsel began with Qualification and Disqualification for enrolment under Section 24 and 24A of the Advocates Act, 1961. Reading the above provisions, it was contended that “any person who is a Indian Citizen at the age of 21 or above, who has obtained a valid bachelor degree in law and who is not disqualified so by Section 24-A and subject to the rules if any made by the State Bar Council in the above Chapter III of the Act, may on payment of the requisite amount of fees be enrolled on the Rolls of Advocate in the State. The said application should be submitted before the State Bar Council (Section 25 of The Act).

The question paused was “what is the role of ‘Welfare Funds’?”. Welfare Fund legislations for Lawyer community are The Advocates Welfare Fund, 2001 (Central Act), The Kerala Advocates Welfare Fund Act, 1980 and its Rules in 1981. The Statement and Objects of both the Welfare Fund Act (Central and State) seems to be that it is enacted for the welfare of the lawyer community. May be because of the fact that a Lawyer can’t even borrow money from someone upon a promise to return it tomorrow, which is really uncertain, the Legislatures thought to extend their help by constituting a fund called as Welfare Fund to which provisions for the membership was made. The Statement and Objects of the Central Act says that the welfare fund is constituted for the welfare of lawyers and that all lawyers should compulsorily be a member of the above fund. An amount is also fixed as compulsory payment every year. Section 18 of the Central Welfare Fund reads as follows:

18. Membership in Fund 

(1) Every advocate practising, before the commencement of this Act, in any court, tribunal or other authority in a State and being a member of a State Bar Association or a State Advocates Association in that State, shall apply, within six months of the commencement of this Act, to the Trustee Committee for admission as a member of the Fund, in such form as may be prescribed.

Though it is stipulated by Section 18 (1) of the Central Welfare Fund Act that all lawyers enrolled in Rolls of Advocates in any State within 6 months of enrolment ‘should’ compulsorily take a membership in the above fund. But unfortunately the Act does not say the consequence for any violation of the section and then not becoming a member of the Fund even after 6 months. The significance of the word used “shall” in the above section is hence open to interpretations. Luckily, the State Bar Councils usually obtains application for membership to this Welfare Fund and collects amounts for the above membership to the fund along with the papers for enrolment and hence tension is so relieved.

Now the membership to the Kerala Advocates Welfare Fund is governed by Section 15 of the Kerala Welfare Fund Act. The Section 15(1) of the Act read as follows:

15. Membership in the Fund.

(1) Every Advocate practicing in any court in the State and being a member of a Bar Association recognised by the Bar Council “may apply” to the Trustee Committee for admission as a member of the fund, in such form as may be prescribed.

(1A) An advocate who is eligible for or availed for any kind of retirement benefits for the services under the Central or State Government or any Public or Private Sector Undertaking, shall not be admitted as a member of the Fund or permitted to resume membership in the fund.

(1B) A person who received retirement benefits from the Fund shall not be readmitted as a member of the Fund.

From, a mere reading of the above section it is understood that the advocates enrolled in the State “may apply’ to be a member in the above fund. Also from a comparison of the above section with that of section 18 of the Central Act, it has to be understood that the Membership to this fund is not compulsory but is only optional at the choice of the lawyers. Also sub- section (1B) above states that a person who received retirement benefits from the Fund Shall not be readmitted to the above fund. Does it impliedly permit ‘an actual practice’ without being a member to the above fund?

Further the application for enrolment to the State is filed before the Bar Council of Kerala formed as per Section 3 of the Advocates Act whereas the application for membership to the Welfare Fund is filed before the Trustee Committee formed as per Section 4 of the Kerala Welfare Fund Act. Two separate bodies under two different statutes. When enrolment of an advocate is governed by Advocates Act subject to Section 24 and 24A, the Welfare Fund Acts, neither Central nor the State, have no role in deciding the qualifications for enrolment.

But still if the Bar Council of Kerala has made any rules grabbing the powers conferred under Section 28(l)(d) r/w Section 24(l)(e) of the Advocates Act, the said rules will be an impediment in enrolling. Now the Bar Council of Kerala has amended Rule 4 and inserted “4A” reads as follows: (Approved by the Bar Council of India in its meeting held on 5.5.2007)

“4A-A person who has already ceased to be an advocate or cease to be an advocate by removal from the State Rolls on request under the provisions of Section 26A of the Advocates Act shall repay the entire amount if any received by him from the Advocates Welfare Fund with 12% interest per annum on that amount to the Welfare Fund and produce the receipt thereon”.

When the 2011 amendment to Welfare Fund Act, Section 15(1B), totally ban a readmission as a member in to the Kerala Welfare Fund Act, the legal validity of the above amendment to Kerala Bar Council Rules need not be argued or commented upon. The above rule framed by the Kerala Bar Council, which is inconsistent with the provisions of the Kerala Welfare Fund Act, cannot be an impediment unless and until the Kerala Welfare Fund Act, mandates a compulsory membership. And when the enrolment cannot be denied on any grounds other than for want of qualification and disqualification in sections 24 and 24 A of the Act, why does a Welfare Fund and its rules enacted for the benefit of a lawyer stand as an impediment for enrolment? What amount do they demand for getting enrolled?

“It has to be understood that the Bar Council of State need not necessarily bother about the welfare of an advocate before the law graduates enrolment and the Trustee Committee of Welfare Fund may not be worried of his membership unless the law graduate is an advocate”.

Now coming back to the story of my friend, the above arguments of the senior Counsel was completely accepted by the honourable single Judge who expressed his mind so in the open court. Immediately, the counsel for the Bar Council of Kerala promised before the court that the request of the petitioner will be positively considered for the next week’s enrolment and prayed for two weeks time. When the matter was posted after two weeks it was very confidently reported before the court that “the petitioner was enrolled in the previous enrolment held last week and the Writ Petition hence become infructuous”.

The excuse canvassed by the Bar Council of the State for avoiding a decision on the merits was that the lawyers may take it as a chance for obtaining easy money and fund will be completely exhausted. If the Statement of Object and Reasons for the enactment itself is for providing money to the lawyers on his retirement or cessation of practice, is the snake biting the hand which fed? Situations are even more worse that it has even gone to the extent of rejecting an application filed by a former Judge who compromised his time, energy and family for speedy disposal of the grievance of the common man. Inspite of having an additional privilege as per Chapter VIII of Bar Council of India Rules, 1979, to be read along with Section 24(3)(d), he is still denied an enrolment. I will be the last person to blame the learned single Judge who let the Bar Council avoid a decision on merits because it was his wise,  benevolent and appropriate decision that made my friend sooner a busy and hard working lawyer. But what I meant is only to say that “benevolence may be after a precedent because it really bothers lawyer’s community”. However, it is time to think, whether it is “Advocates Welfare or Advocate v. Welfare”.

The Importance of Being e-Court fee Literate

(B. Premnath,  Advocate , High  Court  of  Kerala,  Ernakulam)

It’s official. Under the e-Court fee payment system, the queues and hassles for judicial stamp papers for payment of court fee will soon be a thing of a bygone era. Court fee stamps will be available 24 x 7, from anywhere. Non availability of stamp papers doesn’t matter. There is no need to deposit money in the treasury and wait for the stamp papers of higher value. The e-stamping facility will ensure trouble free transactions and prevent fraudulent practices. It will help in speedy disposal of cases. There is no wastage of paper. In the e-Court fee system, the litigant can pay the exact amount of Court fee and need no ‘rounding up’ of the amount of court fee. 

Ministry of Finance, Government of India appointed Stock Holding Corporation of India Limited as Central Record Keeping Agency (CRA) for computerisation of Stamp Duty Administration System (C-DAS). The Mumbai and Delhi High Courts have implemented the e-Court fee payment system, with the District Courts to follow. In Maharashtra, the department of Treasuries has introduced an e-challan payment gateway also known as Government Receipt Accounting system (GRAS). The Bombay High Court is using this system for e-court fee payment. Through this system, litigants and advocates can pay the court fees online using the GRAS website (https://gras.mahakosh.gov.in) and their net banking account with any of the registered banks in the GRAS website. This has to be done prior to the filing of the relevant case or document in the High Court. The payment receipt has to be attached along with other documents during the filing process in the High Court. Then the High Court registry would verify the authenticity of the receipt using the linkage of the High Court Case Management Information System (CMIS) to the GRAS system. The filing will be allowed to proceed after successful verification of the details in the payment receipt with those in the presentation form. Subsequently, the payment receipt would be defaced by the Registry. The registered user can track his transaction of e-payment and there is no risk of Court fee stamps getting damaged/lost or counterfeit stamps.

And now the Madras High Court has followed suit. In a suit before the Madras High Court, an application was filed under Order 14 Rule 8 of the Original Side Rules of the Madras High Court read with Section 151 of the Code of Civil Procedure praying to permit the applicant to remit Rs. 48,00,000/- towards Court Fee by Reserve Bank of India Challan payment. The cause of action for filing that application was that the Sub Treasury, Chennai was unable to provide the judicial stamp paper to the value of Rs. 48,00,000/-. The Court called for the report of the Registrar General who reported that presently there is no provision for payment of e -Court fee which will dispense the undue usage of judicial stamp paper. Then the Court permitted the applicant to remit the Court fee of Rs. 48,00,000/- on the basis of the Challan to be supplied by the Registry of the Court to the credit of the Government of Tamil Nadu and passed other directions. The Court took note of the fact that the Delhi High Court has already implemented the e-Court fee payment system and directed the Registrar to place the matter before the Chief Justice to consider implementation of e-Court fee system. The judgement also details the instructions provided for electronic payment of Court fee in the Delhi High Court. 

In the course of the said decision which is reported in 2013 (3) MLJ 129, the Court made the following observations: “In this regard, it is to be noticed that a number of high value suits that are filed before this Court and in all civil Courts including Motor Accident Claims Tribunal in the District. A huge volume of judicial stamp papers is consumed while paying Court fee. This created unwanted stock of defaced judicial stamp papers which occupy a huge space in all Courts. The bundle of judicial stamp papers after lodging serves no purpose except occupying valuable Court space. If the huge volume of judicial stamp papers is dispensed with, the space can be better utilized. If use of judicial stamp papers is dispensed with by adopting e-Court fee, then the Court bundle also will get reduced and the time wasted to deface the stamp paper can be better utilized. It will be a welcome measure considering the huge volume of cases filed…………………This Court is of the view that the said e-Court Fee payment system should be adopted for Madras High Court as well in all Civil Courts including Motor Accidents Claims Tribunal in the District.”

A  view  worthy  of  emulation.  Food  for  thought.  Can  Kerala  be  far  behind ?

A Requiem for the Late Justice Chinnappa Reddy

(By Justice K.T. Thomas, Former Judge, Supreme Court of India)

The news that Justice  Chinnappa Reddy passed away trickled in. The loss is irreparable.  But it did not gain news catch, perhaps, due to his own characteristic taciturnity.  As he consciously kept away from the glare of news flashes, the media did not even bother to bring it to the print and electronic blaze.  But he was indubitably one of the rarest of rare Judges of the Indian judicial scenario.  He was endowed with a sharp intellect, amazing quick grasping skill, admirable secular perception and indomitable courage.  When he was chosen as Judge of the High Court of Andhra Pradesh, little did the Bar elsewhere realize that there was one who eventually would decorate  the Indian Judiciary with his contributions.

During the dark days of the phony emergency, when most Judges buckled  and genuflected  before the  dictates of the despotic executive,  Justice Chinnappa Reddy was among the very few judges who did not bend, but  exhibited uncanny thirst to protect the freedom and liberty of the citizens.  He refused to become committed to the commands of the establishment.  He did not treat emergency provisions as overriding the guarantees enshrined in the Constitution.  The establishment viewed him as a defiant and unpliable Judge.  He was included in the first batch  to be uprooted from his parental High Court and translocated him in the far-flung North East.  Nobody raised then a little finger against such imperious transfers,  perhaps nobody knew about it due to the rigid implementation of the draconian press censorship.  When emergency waned out with Indian masses throwing  off the autocratic regime, the legal fraternity all over India came to know about those Judges who were replanted. The new administration offered him a return to the parent High Court and  to designate  as Chief Justice of the High Court.  Justice Chinnappa Reddy declined both and opted to remain where he was found at the eclipse of emergency.  No wonder he was  elevated to the Supreme Court. Looking back the country is indebted to him that he did not decline  the elevation.

The Indian legal fraternity  saw how great a Judge was Justice Chinnappa Reddy.  During his initial years in the apex court he came out with new standards in appreciating evidence, particularly in criminal cases. He accorded a ceremonial burial to the conventional anathema towards “chance witnesses” and “interested witnesses” and also “hostile witnesses” through his path breaking judgments. He informed the Bar in India that the  minutes of the court proceedings regarding what transpired in open court would be  sacrosanct, and even  conclusive, and not even the most respected counsel  would be heard  to canvass before the superior court that neither he nor his counter part in the subordinate court did or did not make concessions on any point.

Those who believed that tax avoidance is a permitted phenomenon  in fiscal  jurisprudence,  were informed by Justice Chinnappa Reddy(through his judgment in Mc Dowel v. Commissioner) that  “colourable measures for avoidance of tax by making suitable arrangements in commercial transactions must be discouraged, and that the statutes should be so construed as to disfavor tax evading that  it is high time to desist from the alluring logic of tax avoidance and disfavor the ingenious attempt to rationalize and legitimates the same.”  

He was a hard core atheist, (he asserted that he had no religions at all, and that his only identity is that of an Indian human being). Nevertheless  he exhibited judicial  zeal in  safeguarding the religious faith of Indian citizens, however  miniscule is the membership of the denomination to which the faithful belonged.  This was highlighted by Justice Reddy in his most famous judgment known as “Jehovah’s  Witnesses  case” (1986 KLT 1037 (SC)) . When three tiny tots in a government school in Kerala refused to sing “Janaganamana” (though they stood up respectfully when the anthem was sung) were expelled from the school on the ground that it was anti national conduct. The Kerala High Court upheld the  action of school authorities, but a bench headed by Justice Chinnappa Reddy in the Supreme Court opened a new vista regarding freedom of faith and set aside the action of the authorities.  In the most celebrated judgment “Bijoe Immannuel v. State of Kerala” (1986 KLT 1037 (SC),  Justice Reddy dealt with the question whether refusal to sing national anthem (on the ground that  it would be perfidy to their faith) was genuine or  a mere pretence.  He found that members of that smallest community, wherever they are, whether in England or in Germany or in USA adopted the same approach to the national anthem of those countries. He held that they have a right to adhere to their religious faith as long as they did not show any disrespect to the national anthem and that our Constitution would protect such right.  His reasoning is summed up thus:   

“We do endorse the view suggested by Davar J’s observation that the question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art.25 but subject, of course, to the inhibitions contained therein.”

The famous sentence which became the befitting finale of his judgment in that case is:   We only  wish to add - our tradition teaches tolerance; our philosophy teaches tolerance; our Constitution practises tolerance; let us not dilute it.”

After retirement, it appears he had a busy schedule heading different Commissions and Committees.  I got an opportunity to spend a little time with him.  He impressed me as a man with fine temperament, though he skirted  publicity and controversy.  Though he was reticent, he was a good listener.  The Supreme Court Bar was full of praises for the remarkable speed of his grasp and disposal, not with cryptic orders but well reasoned analysis.  No doubt he was a judge with a difference   He is now no more. But the Republic of India cannot afford to by-pass his enriching contribution to the constitutional and jurisprudential growth. 

Where There is A Right There is A Remedy, 

But Delayed Justice is Denied Justice

(By T.S. Murali, Ottapalam, Palakkad)

The House of Commons in Great Britain witnessed an interesting event in the 18th century when Chief Justice Holt in his judgment ‘Ashby v. White’ observed ‘Lex semper dabit remedium’ which has become a well accepted principle of law. If a man has a right, he must have a means to vindicate and maintain it and a remedy if he is injured in exercise and enjoyment of it. It will be unfruitful to have a right without a remedy since want of right and want of remedy are reciprocal. In the above case, Matthew Ashby, a cobbler who turned up to cast his vote for the British Parliament in December, 1701 was turned away by William White, a police constable on the ground that he was not a settled inhabitant of the borough (a small town) and had never contributed either to the Church or to the poor. Ashby filed a suit against White and his learned counsel argued that his client’s right to vote was supreme, but was prevented from doing so by the defendant police constable. White’s learned counsel argued that since the plaintiff Ashby’s candidate had won the election, he did not loose anything. After hearing both sides, it was held by Justice Holt that by preventing Ashby from voting, the defendant White violated the plaintiffs legal right and hence Ashby was entitled to damages.

Justice John Salmond has observed, “a right is any interest, respect for which is a duty and the disregard of which is a wrong”. According to Austin, liberty is illusory if it is not protected by law and if law protects it, it amounts to a right. Rights refer to those things which others ought to do for us and liberties refer to those things which we do for ourselves. The above principle of law could not be enforced by an unfortunate landlord in an execution petition filed under Section 14 of the Kerala Buildings (Lease and Rent Control) Act, 1965 seeking recovery of arrears of rent per se, as it was held not to be maintainable. (Pocker v. Raveendran (2010 (3) KLT 817). Earlier, a Rent Control Petition was filed for eviction and eviction was ordered. The tenant vacated the premises but without payment of rent arrears. The landlord filed an execution petition for recovery of rent arrears but it was dismissed holding that an execution petition seeking arrears of rent is not maintainable under the Act. A Writ Petition filed by the landlord under Article 227 before the Hon’ble High Court was also dismissed holding that there is no scope for passing a money decree for recovery of arrears of rent after eviction under the above Act. The landlord had a cause of action being the arrears of rent or fixation of fair rent and later its recovery from the tenant, but the landlord’s right to judicial redress or relief was rejected, since the tenant lost his tenancy status due to eviction or vacated the premises on his own without payment of rent arrears.

Orders which are executable by the Principal Munsiff of the Station by virtue of Section 14 are eviction orders under Section 11, summary orders of eviction under Section 12, orders passed by the Accommodation Controller under Section 13, orders awarding cost under Section 19, orders directing restoration of/re-induction into possession under Section 33, appellate orders under Section 18 and revisional orders under Section 20. The Rent Control Law does not have a provision whereby rent arrears during the tenanted period which becomes a money decree after the surrender of possession of the tenanted premises by the tenant can be executed.The only option available to the landlord after the tenant vacates the premises is to file a suit before the appropriate court (Munsiff or Sub-Court) for recovery of the rent arrears. Lack of proper legislation leads to multiplicity of proceedings. Avoidance of recurrence of litigation between the same parties on the same issue must certainly be a laudable object. There should be no need for the landlord to approach a different forum for the same cause. For many landlords who make a living out of the rental income, it makes justice through litigation inordinately dilatory and costly and the legislature does not consider the hardships a landlord has to face going through the same issue endlessly. The only solace for the landlord is that where Section 1 l (2)(b) of the Rent Control Act specifies for 6% interest for arrears of rent, in a suit for realisation of rent arrears, the plaintiff landlord can claim for interest at reasonable rates according to the respective nature of use of the building by the tenant as commercial or residential. With regard to the rate of interest on the claim of money due as rent arrears in civil suits, Section 34 of the C.P.C can be prevailed.

Greek philosopher Plato once said, ‘to do injustice is more disgraceful than to suffer it’. However, justice cannot be accomplished without an orderly system of law. The ultimate goal of the legislature and judiciary is to serve the people upholding the letter and spirit of the Constitution. These goals include protection of the life, liberty, property of the people and all the rights which the Constitution of India and laws of the land grant and guarantee. It is the trust and confidence of people in the responsiveness and the ability of every organ of the State to deliver true, fearless and impartial justice which is the foundation of democracy and the bedrock of every civilized society. But, governmental indifference in enacting proper law or amendment of law leads to delay in administration of justice.

In Kolappan Achari v. Haneefa (1979 KLT 674), the Hon’ble High Court observed that, “we hear a good deal now about law’s delays and about delayed justice. It will be useful for those in charge of legislation to consider whether the present procedure could not be made much easier”. According to Lord Wright, “it is not the business of a court to fill up the gaps in a Statute. That is the function of the legislature. It may be that there is a casus omissus, but if so, that omission can only be supplied by a statutory action. The court cannot put into the Act, words which are not expressed and which cannot reasonably be implied on any recognized principles of construction”.

It has been held in Joy v. Jacob (1984 KLT 72), that the Rent Control Act is a self contained statute and the rights and liabilities of the landlord and tenant are to be governed by the provisions of the Act and not by the provisions of the Transfer of Property Act or any other law. The authorities under the Rent Control Act while deciding cases are to be governed by the principles of justice, equity and good conscience as provided in Rule 11(8) of the Kerala Buildings (Lease and Rent Control) Rules, 1979. There is no need for a landlord or a tenant to approach a different court other than the Rent Control Court to safeguard their rights. Hence, some of the outdated provisions in the Act need immediate amendment. It is indeed unfortunate, time consuming and expensive, if the landlord has to initiate a civil suit immediately after the close of the Rent Control Petition for recovery of rent arrears, if the tenant surrenders the building after the eviction order, but without payment of rent arrears.

Wednesbury Principle v. Theory of Proportionality

(By V.K. Babu Prakash, Addl.District Judge,Thalassery)

Judicial review is the hall mark of a civilized society ruled by law. When the decision of a statutory or public body is challenged before the court of law alleging arbitrariness, illegality or capriciousness, the court has to look into three aspects to see whether the decision of the public body is reasonable or not. Those are:

1. In making the decision, the public body took into consideration facts which it ought not have taken into consideration.

2. It failed to take into consideration facts it ought to have taken into consideration.

3. The decision is otherwise unreasonable that no reasonable authority or prudent man would not have taken.

The principle is called Wednesbury Principle of unreasonableness. It arose out of an English decision illustriously known as Associated Provincial Picture Houses Limited  v. Wednesbury Corporation (1947 (1) KB 223). The plaintiff, Associated Provincial Picture House was granted a license by the Wednesbury Corporation, the local authority of the market town of Wednesbury in Staffordshire in England. The license was for operating a cinema. It contained a condition that the film shall not be exhibited to children less than 15 years old. The licensee, Associated Provincial Picture House challenged the condition before the court of law in England.  The principle formulated  in the decision became  the famous Wednesbury Principle which is even now followed in various countries including India. Lord Green, the Master of Rolls who wrote the Judgment held as follows:

“The public body or authority has the discretion to impose conditions. But the discretion must be exercised reasonably.  Now what does that mean.  Lawyers familiar with the phraseology commonly used in relation to  exercise  of  statutory  discretion  often  use  the  word unreasonable in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his attention to the matters which he is bound to consider.  He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said and often is said, to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the power of the authority.”

The present scenario after the verdict in Wednesbury case is that modern Government and public body demands wide discretionary powers as the functioning of the Government and public body is numerous in nature.  If each and every decision is scrutinized on the touch stone of Wednesbury unreasonableness, the public body and Government cannot exercise its discretion. However, the moot point is the recognition that all powers have legal limits.  The next foremost concept is that when the public body’s discretionary decision is challenged, the courts should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection. At times, the statute may require the authority to act reasonably. Courts have also held that the authority should consider the question fairly and reasonably before taking action. If the authority has acted mala fide or improperly then it pales into the realm of unreasonableness. Unreasonableness may furnish a ground for intervention by the courts when the Constitution of India or statute so requires. Article 14 of Indian Constitution guarantees equality before the law. Similarly Article 19 requires only reasonable restrictions to be imposed on the rights specified therein. In Maneka Gandhi v. Union of India ((1978) 1 SCC 248) it was held that an order made under Section 10(3)( c) of the Passport Act, the power of impounding of passport, could be declared to be bad under Clauses 1(a) and (g) of Article 19 as it was drastic in nature, so that it imposes an unreasonable restriction on the citizen’s freedom of mobility.

The principle of Wednesbury reasonableness has become one of the most active and conspicuous doctrines which have vitalized administrative decision in recent years. Now a days, another trend has set in which wanted to water down the rigor of Wednesbury reasonableness. It is spreading that Wednesbury doctrine is now in terminal decline and it is being displaced by the theory of proportionality. Judicial review conventionally is concerned with the question of jurisdiction and natural justice and the court is not much concerned of the merits of the decision but how the decision was reached. The basis of judicial review could be highlighted under three principal counts namely illegality, procedural impropriety and irrationality. This is the essence of Wednesbury principle. Nevertheless, the theory of proportionality propounds that when the court is called upon to exercise judicial review on a decision of public body, the court has to assess the balance which the decision maker has struck, not merely whether it is within the range of rationality or reasonableness.

Supreme Court of India has accepted and acted upon Wednesbury Principle in a galaxy of decisions. It is profitable to pass through AIR 1965 SC 484, AIR 1967 SC 295, (1978) 1 SCC 248, (1980) 4 SCC 544. For avoiding prolixity the observations of the Apex Court in those decisions are not reproduced. In State of U.P. v. Sheo Shanker Lai Srivastva & Ors. (2006)  3 SCC 276, the Supreme Court held that Wednesbury Principle may not now be held to be applicable in view of the development of constitutional and other laws. Supreme Court further stated that the theory of proportionality is gaining ground over Wednesbury doctrine. In another important decision, State of Madya Pradesh & Ors. v. Hazania (2008) 3 SCC 273) Supreme Court held that the legal parameters of judicial review have undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality.

However, the fact is that Wednesbury doctrine cannot be completely over thrown at all. Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at. Proportionality as a legal test is capable of being more precise and fastidious than reasonableness test as well as requiring a more intrusive review of a decision made by the public body which requires the court to assess the balance of equation struck by the decision maker. Proportionality test in some jurisdiction is also called as the least injurious means or minimal impairment test so as to safe guard fundamental rights of citizens and to ensure a fair balance between individual rights and public interest.  Suffice to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalize or lay down a straight jacket formula and to say that Wednesbury doctrine has met with its death knell is too premature. Proportionality requires the court to judge whether action taken was really needed as well as whether it was within the realm and course of action which could be reasonably followed. Proportionality is more concerned with the aim and intention of the decision maker and whether the decision maker has achieved more or less the correct balance or level playing field. Thus to cut a long story short, court has to strike a balance between the reasonableness of the action of the public body with the aim and purpose it wanted to achieve. Thus the ancient Wednesbury doctrine has not become archaic and obsolete but is developed into a sphere where theory of proportionality also goes hand in hand. After all, judicial review does not mean the mechanical process of the functioning of a switched on automaton, but is the application of the mind of a human judge looking at a set of things to see whether those are suffering from illegality, irrationality and unreasonableness. It is nothing but a process of social engineering. The guidelines that are submerged in the Wednesbury Principle and the theory of proportionality with the practical wisdom of the seasoned judge would , by and large, shed light on the decision of the statutory or public body under Judicial review.