The Inimitable -- Senior Advocate Sri.T.P. Kelu Nambiar

(By V.B. Premachandran, Advocate, High Court of Kerala)

A Lawyer, who was highly erudite and dedicated to the profession for more than half a century is now no more. He started wearing the lawyer’s garb from the year 1953 onwards and was associated with the High Court of Kerala from its very inception from 1956 onwards in the “Manmohan Palace” and later in our new majestic High Court building.

With a pencil in his right hand, he argued in the court halls with precision and clarity. He always presented the client’s cause in brief, pointwise and kept himself away from unnecessary, lengthy and irrelevant aspects - whether it be constitutional questions or matters relating to various other branches of law.

He was incomparable in many ways, who was, in fact, multifaceted. An excellent teacher (for many decades in the Law College), a celebrated lawyer and a writer. His contribution to the journal pages of the legal publications are always immensely guiding, inspirational, and beacon lights. His articles are overwhelming with humour, advise, wit, sarcasm, philosophy and aesthetics in language and above all educative and informative. His writings bear testimony, not only to his acumen and scholarship in the field of law, but also his philosophy and outlook towards the world.

He spoke and wrote much about the legal profession’s fears, myths and facts. He was never reluctant or fearful while giving certain directions or guidelines even to the Hon’ble Judges. In one article which appeared in 2010 (4) KLT at page 2 of the Journal part, he wrote “Judges should remember that there is no award for good judgment, for there should never be a bad judgment’.

In another Article  2003 (1) KLT at page 34, journal part, Sri.Nambiar, regarding certain Judges, moved his pen to put as “They even go to the extent of framing questions at home, and asking lawyers to answering in court even at the start of the case, forgetting that Advocacy is not a quiz programme and a judge should not act as a quiazzical quizzer.  Advocacy should never be muffled, crippled and stifled”. Such words could not be taken as guidelines/advises to Hon’ble Judges and not at all intended for any iota of humiliation against them. He was always  simple and unassuming.

What really astonishes one, is how he managed to get time to move his pen for articles in the legal publications, while busily engaged in the profession especially being the legal advisor and standing counsel of several corporate clients. An octogenarian who worked for so many hours a day, is always an inspiration to all in the profession, Bench and the Bar alike. It reminds the saying - “It is always, the busiest man who has got time to spare”.

By writing the “The last page”, 2011 (2) KLT at journal page 1, he withdrew from his writings in the legal journals, which undoubtedly, is a loss to all of us, readers.

Yes, a stalwart of the profession left us. In the years to come, men may come and go in our legal fraternity, but Sri.T.P.Kelu Nambiar will be remembered as a different personality with a different style. Mourning and grief have no place when life and death are mere changes of costumes, as the Bhagavath Geetha says it. He has left this shore leaving the lawyer’s black robes to yet another eternal world. His throne in the profession will remain vacant forever. We will not witness him any more in the court halls of the 8th storeyed building of our prestigious High Court. But, he will not be faded in our memories.

Despite the fact that the ritualistic and conventional condolences are meaningless and futile, we may wish - “Let his soul rest in peace”.

Obituary Reference --  A Look and Outlook

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

I saw a letter dated 9.10.2012 written by the Registrar General of the High Court of Kerala to the Kerala High Court Advocates Association informing that “the High Court had decided to hold obituary reference of all designated Senior Advocates independently on Mondays and of Advocates other than designated Senior Advocates on Thursdays collectively up to 3 persons at Court No.1. It is also decided to reduce the two minutes silent prayer to one minute silent prayer.”

Right from the sanguine sunrise till the sunset in the glimmering west I pondered over the contents of that letter. Once the Journey comes to an end at the last inevitable hour, and the knell tolls, what difference is there between a designated Senior Advocate or ordinary advocates who are not designated to have separate obituary reference on Mondays and Thursdays. Designation of a Senior Advocate is a legal recognition by the High Court. But the real and the spontaneous recognition must come from the fellow members of the profession who are also learned and qualified to assess and evaluate the worth and value of every Senior Advocate on the basis of his unquestionable integrity, deep knowledge, dedication to the profession, strength of character, basic honesty and the inner wisdom emanating from him. Apparel cannot proclaim a lawyer. Unimpeachable knowledge is his power. There is an ocean of difference between the legal and real recognition of a Senior Advocate. One becomes a veteran or doyen at the Bar, not on the quality and texture of his gown but on the strength of his knowledge. If nobility is wasted and virtue is strangled, the gown cannot salvage him anymore.

The dead never knows whether he is honoured or insulted by the living. The funeral pyre or the grave yard do not know or identify the length of the gown or any Monday or Thursday. Once the indestructible is separated from the destructible or when the eternal goes out from the ephemeral, where can one search and find out an illuminating designated Senior Advocate or an eclipsed ordinary advocate for independent or collective reference.

True to the glorious history and well founded tradition of the Kerala High Court there existed a system of obituary reference for considerably long period in the past to hold the reference of a judge or lawyer on the next day after the cremation or burial was over. Increase of members in the profession and consequential deaths gradually yielded its way to collective reference at a very belated stage when the dead advocate is thrown to the pool of oblivion and the tears from the loving eyes have flown out.

Sri. P. Govinda Menon, a retired Judge of the High Court of Kerala died at the right old age of 75. The cruel hands of death snatched away the life of a very young advocate Sri. N. Balaraman Pillai at the very young age of 39. Cut to as that branch which might have grown straight and in whom a full lawyer might have bloomed. A Full Court reference was held on 12.11.1979 since it was to mourn the sad demise of a former Judge of our High Court. Obituary reference speech was made by the then Chief Justice Sri. V.P. Gopalan Nambiyar, Advocate General Sri. C.K. Sivasankara Panicker and Mr. V.R. Venkata Krishnan, President of Kerala High Court Advocates Association. It was a common reference for a retired Judge and a young lawyer on the sad demise (1979 KLT Journal 107). There was no illegality, impropriety or under estimation of the dead in any manner and no Judge or lawyer who participated in the reference found fault on that noble act of common reference.

Alas ! Sands of time filtered. Dimensions of time and space changed. After the passage of 33 years from the earlier Full Court reference, Sri. T.A. Narayanan Nair, who was also junior to late Sri. C.K. Sivasankara Panicker died on 7.9.2012 at the right age of 81. While the obituary reference of the former Chief Justice of India Sri. Ranganatha Mishra was held on 17.9.2012 by the High Court Sri. T.P. Kelu Nambiar also was dead. Both Sri. T.A. Narayanan Nair and Sri. T.P. Kelu Nambiar also could have been honoured had they been included in that reference. But the same was not possible because the cremation of Sri. T.P. Kelu Nambiar was not over by that time. Reference for Sri. T.A. Narayanan Nair was held separately on 4.10.2012, instead of including him in the earlier reference. Later on a separate reference was held for Sri. T.P. Kelu Nambiar on 8.10.2012.

At this sad moment when I write with shivering hand these random thoughts, from the bottom of my heart, on a piece of paper wet with my tears for three of our beloved brothers in the profession who are no more [Advocates Sri. Antony V Paul (52), Sri. John K Joseph alias Sajan (63) and Sri. M.M. Mathew (76)] and who are waiting for their day to be fixed by the High Court for an obituary reference in the evening of the court hours, I wish and pray to Lord Almighty that they be honored by all the judges and advocates together with 2 minutes silent prayers at 11 A.M. on the next working day when the court bell rings so that it shall be their benediction and honour in every respect. One hour each on Mondays and Thursdays also can be saved. The immeasurable may not be measured. Silence can speak eloquently and convey volumes than the words uttered by the mortals for the immortals!

A Tribute to Late Kelu Nambiar 

(By V.R. Venkatakrishnan, Sr.Advocate, High Court of Kerala)

The demise of T.P.Kelu Nambiar, has sent a shock to very many  persons like myself. We have been together in the bar for the last more than 50 years and his sudden departure have added to the poignancy of the sorrow. Among those who shifted from the Madras High Court in 1956, only two of us continued till 2012; now he has left and I am the only surviving lawyer. He was enrolled in 1954 while I was enrolled in 1949 and I knew him from his enrolment. He had one advantage in life, namely, that his father-in-law, late A.Achuthan Nambiar was a source of strength and encouragement to him while I ploughed only a lonely furrow, thanks of course to my late senior, revered N.Sundara Iyer.

Mr.Kelu Nambiar was a successful lawyer. We had differences of opinion but still we maintained a warm personal attachment which was mutual. We maintained high professional standards and for him he had many contacts in public sector and other public enterprises which contributed much to his success. In fact practical wisdom is an asset in the making of a successful lawyer.

Late Kelu Nambiar and myself had mutual warmth and affection and we agreed on many fundamental points. We were family friends and our families knew each other closely enough which bordered on intimacy. Late Kelu Nambiar’s better half is a Doctor who did not practise seriously. His two daughters are well placed and his only son is also well placed.

It is difficult to describe fully the personality of Kelu Nambiar in its fullness because of his many sided qualities. He maintained high standards professionally and otherwise. And there was discipline in the pursuit of the profession. In fact, he deserved many things in life. But that is not the basis for assessing his capacity. Mr. Kelu Nambiar had one more enviable asset; he knew Tamil very well; he knew to read and write and that brought him into the panorama of a bigger world of culture. He loved Carnatic Music to an enviable extent and these assets have brought him out in another larger periphery. He used to discuss and assess various Carnatic Music concerts on the stage as well as in the Radio. This brought us together in another rare atmosphere of mutual admiration.

I cannot find the words to express my deep sorrow and I feel more about the same because he was younger to me. We had many things in common which we cherished and it will take some time before I can reconcile myself to a world without Kelu.

May  His  Soul,  it  is  My  Solemn  Prayer,  Rest  in  Peace.

Paper presented at the Conference of Lawyers for Social Justice, 

Indore, M.P., 25th-26th August, 2012 Planning, Development and

Displacement -- Some Legal and Constitutional  Issues

(By Kaleeswaram Raj, Advocate, High Court of Kerala)

Law is only a sophisticated form of politics. According to Mark Tushnet, even “the constitution matters”, not because it ensures protection of fundamental rights, but “because  it provides a structure for our politics.” (Mark Tushnet – WHY THE CONSTITUTION MATTERS, Universal, 2011.)

And politics is the activity that ultimately determines the individual’s and society’s control over the resources.

Resources are more than investments.  Those reflect something more than the economics of profit and loss of GDP and GNP.

Earth is the resource of resources.  Land is not only the most tangible form of resources, but their very foundation.

Therefore, the basic political, ecological and developmental questions are intrinsically related to issues of land, its distribution, user and management. Thus the Land Acquisition Act and the Town Planning statutes, while reflecting the political (i.e., executive or legislative) philosophy also enable their implementation. The question therefore is, to what extent the approach and schemes related to town planning, rehabilitation and development are just and equitable. I would suggest that deletion of Art. 19 (1) (f) of the Constitution by which the fundamental right to property was erased, was an amendment devoid of constitutionalism, from the victim’s point of view.

There was an apparent inertness in modifying the 19th Century Legislation on Land Acquisition.  At the same time, there was humpty number of occasions where the phrase ‘public purpose’ happened to be distorted or misused.  The emergency clauses in the Land Acquisition Act also were misused.  There were instances in Kerala  (Acquisition of Vast Areas of Coconut Plantations by the State Government for Backel Tourism Corporation.) where Agricultural lands were acquired claiming public purpose and  using emergency clauses in the statute, and thereafter transferring the lands  to private entrepreneurs for conducting bar hotels. In that episode, advancement of Tourism was the “Public Purpose” projected.

While the 1894 statute was retained as such, there was no legislative attempt to connect the various town planning statutes of different States, with the central statute on land acquisition.  No co-ordination was ever affected.  The State did not feel the need for a co-ordination either.

Article 19(1)(f) of the Constitution was omitted by way of 44th Amendment to the Constitution with effect from 20.6.1979.  Article 19(1)(f) as it stood spoke about right to property, as a fundamental right. After the amendment, even when the Town Planning statutes or the Land Acquisition Act were used against the citizens and even when the same resulted in total and out right eviction without rehabilitation, no serious thoughts were evoked in the country on the question of restoration of Article 19(1)(f). 

In Chairman, Indore Vikas Pradhikaran v. Pure Industrial Cock & Chemical Ltd. & Ors. (2007) 8 SCC 705) the Supreme Court was constrained to observe that even though there is no fundamental right to property, the deprivation of property would result in infringement of “human rights”.

The distinction between fundamental rights and human rights may be one capable of being explained theoretically.  But a situation where a citizen is unable to challenge the human right violation, because there is no fundamental right violation, is one that cannot be normally comprehended.

Modern constitutions often recognize right to property as fundamental right which is enforceable. See for example, Section 26 of the South African Constitution dealing with housing right (Constitution of the Republic of South Africa (1996) (Act No. 108 of 1996) published in the Gazette dated 18.12.1996.) .  According to Section 26 (1), the citizen has the right to have access to adequate housing.  Section 26(2) says that the State has a duty to take reasonable legislative and other measures to achieve the said constitutional objective.  According to Section 26 (3), no one can be evicted from their home or nobody’s home will be demolished without a judicial order passed after consideration of all the relevant circumstances. A legislation permitting arbitrary eviction cannot stand the test of constitutionality, going by Section 26 (3) of the South African Constitution. It is clearly the right to property that is re-defined and projected as right to dwelling house or as right to residence. It is more than an equivalent to Article 300 A of our Constitution, which also was incorporated by way of the very same 44th Amendment.Article 300A denotes a constitutional right,and not a fundamental right, vide Bishamber v. State of Uttar Pradesh (AIR1982 SC 33). In India,  even when the sole dwelling huts of marginalized  people get acquired by the State either by use or misuse of the statute or by a pro rich policy, there is no violation of fundamental right but only human right violation, going by our constitutional scheme,   as explained by the Supreme Court.  It is time to rethink whether the abrupt and total expulsion of Article 19(1)(f) of the Constitution was an amendment in the larger interest of the ‘public’ who form the ‘republic’.  A revisit to the Amending Act would pose questions related to lack of vision for the future and dearth of commitment to the poor. 

The decision in Bondu Ramaswamy & Ors. v. Banglore Development Authority & Ors.  (2010 (2) KLT SN 57 (C.No. 58) SC =  (2010) 7 SCC 129), however clarifies that the land acquisition in the country cannot be and should not be a matter of routine. The purpose requires to be explained and the need for judicial review is no longer limited in the matter as understood conventionally. There is a requirement of more rigorous judicial scrutiny in the  matter of acquisition and town planning.   The judicial indication, in Bondu Ramaswamy supra, reflect skepticism about the State’s actions.

In  Devsharan v. State of  U.P.((2011) 4 SCC 769), the Supreme Court held:-

“Admittedly, the Land Acquisition Act, a preconstitutional legislation of colonial vintage is a drastic law, being expropriatory in nature as it confers on the State a power which affects person’s property right.  Even though right to property is no longer fundamental and was never a natural right, and is acquired on a concession by the State, it has to be accepted that without right to some property, other rights become illusory.  There questions are being considered, especially, in the context of some recent trends in land acquisition.  The Supreme Court is of the opinion that the concept of public purpose in land acquisition has to be viewed from an angle which is consistent with the concept of a welfare State”.
                                                                                                                 (see para 15 of the judgment).

In my view, the above referred judgments of the Supreme Court contain an indirect and silent expression of regret over the repeal of Article 19(1)(f) and make an effort to underline the significance of the right to property.  It is a right which is relative, contextual and tentative.  It is a right that relates itself with the freedoms under Article 19 and dignified existence offered by Article 21. Therefore, in order to make the said right meaningful in the context of the Land Acquisition Act and the town planning statutes, there is a need to have a relook on repeal of Article 19(1)(f).  This, however, the Supreme Court did not venture to say. 

Very often it so happens in India that the implementation, invocation and even interpretation of the provisions  in the original town planning statute carry a clear affinity towards the interest of the middle class and the elites.  In the process, the marginalized remained as they were and often their conditions became worse.

The courts were by and large, maintaining that the open spaces in the cities and township, are amenities of the town. In Damodara Rao v. Municipal Corporation, Hyderabad (AIR 1987 AP 176)  the acquisition of land which was earlier earmarked as an open space for recreational purpose was sought to be acquired for residential quarters for employees of LIC.  The challenge by the local people was upheld by the Andhra Pradesh High Court.  Thus the recreational interests of the middle class were protected with an environmental flavour.  Likewise in Banglore Trust v. Mudappa (AIR 1991 SC 1902) attempt for conversion of open space into a Private Nursing Home was interdicted with a clarification that it is for the Banglore Development Authority to consider whether the scheme itself is to be altered.  Recently, in Girish Gas v. State of Maharastra (2012 ) 3 SCC 619), the Supreme Court came down heavily against unauthorized construction by holding that parts of the land reserved for public cannot be lightly tinkered with.

At the same time, when issues of town planning were confronted with the livelihood of the marginalized or the poor, the adjudication did not result in any comfortable preservation of human rights of those at the bottom.  Thus in Milkmen Colony Vikas Samithi v. State of Rajasthan & Ors.  (2007) 2 SCC 413) the cattle, along with the milkmen were told to stay away from the city of Jodhpur.  When the issue related to slum rehabilitation was considered by the Bombay High Court in Janhit Manch v. State of Maharastra (CDJ 2006 BHC 1273), the priority and emphasis were on the amenities of the city including the road and the railway rather than on rehabilitation of slum dwellers.

Relative lack of possibilities for legal recourse in the matter of town planning and developmental scheme resulted in large scale public upsurge in the matter.  Singur and Nandigram were only a few prominent episodes among hundreds of other less known movements.  These indicate the inevitability of people’s movement which were also necessitated due to lack of effective and meaningful legal remedies.  No wonder, in  (Devsharan v. State of U.P. (2011) 4 SCC 769), the Supreme Court had to hold that construction of jail is  “certainly a public purpose”!  

What is required is a partial, qualified, meaningful and effective restoration of Article 19(1)(f) so as to ensure that right to exist on earth (read, the land) is a fundamental right when the individual faces the threat of total displacement and is denied equitable rehabilitation. This  would in turn mean that in the  case of drastic displacement, right to be rehabitated attains the characteristics  of  fundamental right.  This should be constitutionally safeguarded, irrespective of the political decisions taken by the State in the matter of town planning or land acquisition. Also it should be clearly distinguished from the right to earn or to preserve excess/excessive property. An imaginative and modified incorporation of Article 19(1)(f)  should at least give effect to the decision of the Supreme Court in Karjan Jalasay Yojana Assargrasth Sahkar Ane Sangarsh Samithi v. State of Gujarat & Ors. (AIR 1987 SC 532) where it was held:-

“If any person who is dispossessed of any part of the acquired land in his occupation has his dwelling on such land and in consequence of taking possession he is deprived of such dwelling, the State Government will simultaneously with taking possession of such land, provide alternative dwelling to the person who is dispossessed.  So that the person dispossessed should not be without roof over his head even for a single day”.

2012 (2) KLT 214 -- Rama Moorthy v. Food Inspector

Deserves  Re-consideration ?

(By P. Rajan, Advocate, Thalassery)

The judgment of the Hon’ble High Court of Kerala, mentioned above pertains to the delay occurred in filing the complaint under the Prevention of Food Adulteration Act 1954, resultantly right of the accused to get a Report from the Central Food Laboratory is denied; reason being launching of prosecution after the expiry of the guarantee period for consumption of the food item; taken as the ground to terminate the prosecution; quashed the proceedings against all accused.

In the reported judgment the article taken sample of, by the complainant is vanaspathy manufactured by the petitioner’s company and on analysis by the Public Analyst, it is opined that the said sample did not confirm to the prescribed standard for the particular item; thus the complaint was launched. It is beyond controversy that the sale by the vendor, to the complainant was on 20.2.2003 and analysis was done on 27.3.2003 and the complaint was filed before the Court on 3.6.2003. The petitioner being the manufacturer of the article, was impleaded on 19.9.2005, on the request of the retail trader, under Section 20A of the Act.

The contention canvassed by the petitioner before the High Court was that the food item was unfit for use after the declared period shown on the container/packet. The delay in filing the complaint and summoning the petitioner to face the trial caused prejudice to the manufacturer, resulted in delay in getting a report from the Central Food Laboratory, by the petitioner. The High Court accepting the contention ruled in favour of the petitioner, thereby quashed the complaint. The Division Bench ruling reported in 1971 KLT 16 (Gopalakrisha Kurup v. State of Kerala) speaks otherwise; favours the prosecution.

The P.F.A Act does not prescribes any time limit for filing a complaint on receipt of the analyst’s report mentioning of adulteration or difference in contents, in violation of the standard shown in the P.F.A. Rules. In this particular case it is to be noted that without much delay the sample was analysed and the complaint was filed i.e., within seventy days. The article was packed in November 2002 and the same was best for consumption upto six months as revealed, as manufactured and packed in November 2002. The details of the report of the analyst which paved way for the prosecution also are not seen disputed by the petitioner. Supposing there was injurious adulterant in the food sample likely to remain and noticeable during a short period only, analysis by the Central Food Laboratory, like the examination by the Public Analyst need be done without any delay. Our High Court has held that though the Act prescribes 10 days only to apply under Section 13(2) of the Act to request for getting Central Food Laboratory report, this period can be waived and accused can file application even after ten days to ensure justice (1986 KLT 174 - Food Inspector v. Karingarappully Co-op. M. S. Society Ltd.). It is also held in another judgment that violation of any rule and prejudice due to such violation is to be considered by the court in P.F.A cases not on presumption but on proof (1986 KLT 852 - Food Inspector v. Varghese).

In food adulteration cases the commencement and completion of the offence take place on sale of the article to the Food Inspector, if the same is adulterated. Report of the analyst is an expert’s opinion to fortify scientifically the complainant’s case. If insect infested grain or pulse is the sample, damaged percentage in the quantity is above the permissible limit of insect infestation, visible to naked eyes, expert’s opinion is only a legal formality under the Act. Another vital circumstance is, where delay in analysis becoming crucial is, damaged grain or insect infested percentage of article in the entire stock is considerably low, to the level of the maximum permitted percentage, immediate analysis would prove the innocence of the vendor and delayed  analysis becoming prejudicial as increase of damaged/insect infested portion would increase by passage of time and cross the permitted limit. Examples are illustrative not exhaustive. It is pertinent to note that the charge being framed by the trial court in food adulteration cases is on materials available on the date of sale and analyst’s report and not basing on the C.F.L. report later on obtained, as explained u/S. 211 Cr. P.C., delay in filing the complaint, without any attempt to get a second report, is taken as a valid ground to invoke S.482 Cr.P.C, as the provision of law and rulings under the act are contra.

The High Court has pressed in to service rulings under the Drugs and Cosmetics Act 1940 and judgments under the Insecticides Act 1963 to hold that report from the Central Food Laboratory cold not be obtained due to delay in filing the complaint. P.F.A. Act being a self contained one and rulings are aplenty under the same Act, in the case reported the petitioner made no attempt even to send the remaining sample for analysis-just counted the chicks before its hatching. Courts often say in P.F.A cases when manufacturer/wholesale dealer is acquitted-small fry getting caught and big shark escape even by piercing the net, acquittal on technical ground takes place. Though Food Safety and Standard Act 2006 came into force, this ruling becomes a panacea for similar pending cases as the original accused also is exonerated, by the same judgment, thus relief extended to him also, though not asked for. 

………………….

How invincible is justice, if it be well spoken - Cicero.