Obituary for Professor J.D.M. Derrett 

(By Dr. Werner Menski, SOAS, University of London)

Professor John Duncan Martin Derrett, DCL, PhD, LLD (30.8.1922 --- 21.10.2012), a barrister and for a long time the major global expert in the Western world on Hindu law and the laws of India, passed away at the age of 90 in the idyllic village of Blockley in the Cotswolds. After a distinguished career as an academic in several related fields, prominently Hindu and Indian law and Christian theology, he enjoyed 30 years of research-active retirement, surrounded by books and papers collected over decades. His large family arranged a church ceremony in his memory on 1 November 2012. Jeremy Bourne describes him on that occasion as a man of towering intellect and notes that the local residents knew that they had a scholar of international reputation living amongst them:

As a textual analyst and a student both of early Christian and Hebrew literature, and also of the Buddhist and ancient Hindu religious texts, he was working in a field known only to theologians and scholars of comparative religion. He published some forty-four books. He had a mastery not only of classical Latin, Greek and Hebrew, and hence a knowledge of Aramaic. He also had a fluent understanding of Sanskrit, and thus of early Hindi, Pali and no doubt of Tamil.

Duncan Derrett, as he was known locally, was an active President of the Antiquarian Society and even published several collections of local historical manuscripts, which can be found on the internet. After his retirement from SOAS, the School of Oriental and African Studies, University of London, where he was Professor of Oriental Laws from 1965-1982, he became engaged in intensive research on complex, often controversial questions of theology and comparative religion. His critical scholarly analysis upset quite a few scholars through his significant findings that Christian religious traditions were to some extent influenced by Buddhist and early Hindu concepts.

What is described by those around him as ‘the other side of Duncan’s scholarship’ will particularly interest older readers of the KLT, for Professor Derrett had a long-standing connection with this leading Indian law journal and its much-respected Founder Editor, M.C.Mathew, until I took over from him. In 1982, we were both on the Editorial Committee. That year he published the last of his articles at pp. 31-33 of the KLT Journal Section on ‘Nullity of marriage and change of religion’. This is item 397 in a list of books and articles prepared as part of Indology and Law. Studies in Honour of Professor J. Duncan M. Derrett, edited by Gunther-Dietz Sontheimer and Parameswara Kota Aithal (Wiesbaden: Franz Steiner Verlag 1982), which speaks volumes about this great scholar’s life work. He continued to publish some further articles also on Hindu law, even in the early years of the new Millennium. However, after his retirement from SOAS, his attention clearly shifted to New Testament Studies and related topics. 

The Preface in Derrett’s Festschrift highlights that he ‘never follows any of those “schools of thought” or short-lived academic fashions which sometimes reflect more on the state of these disciplines in the country of their origin than on the true India’ (italics in the original, p. v). He laid to rest Sir Henry Maine’s rather superficial remarks about the development of traditional Indian legal culture. Above all, he deeply engaged with Indian judicial decisions and produced several major books on Indian family law, prominently An Introduction to Modern Hindu Law (Oxford: OUP 1963), A Critique of Modern Hindu Law (Bombay: Tripathi 1970), and The Death of a Marriage Law (New Delhi: Vikas 1978). These may be outdated today, but inform researchers reliably about earlier stages of development and the difficulties in finding the ‘right law’ in one of the world’s most important jurisdictions. Indeed, the editors of the Festschrift noted (p. vi):

For Derrett the occupation with India is never only an abstract, theoretical armchair affair. His teaching has inspired many Indian and European law students. His critiques of court decisions are a useful corrective in the development of modern Hindu law, fully and gratefully acknowledged by many Indian students of law, advocates, and judges. They do not fail to see that his relentless criticism is matched by a deep sympathy for India and her well-being in the modern world. 

His collected works in four volumes, Essays in Classical and Modern Hindu Law (Leiden: Brill 1976-78), are further testimony of towering achievements. Religion, Law and the State in India (London: Faber & Faber 1968) has probably most lasting relevance as a historical study and was reprinted in India in 1998. His early textbook on comparative law, An Introduction to Legal Systems (London: Sweet & Maxwell 1968) was also reprinted (New Delhi: Universal 1999). It allows insights into how much progress has been made in that field since the 1960s, when the comparative law programme at SOAS was beginning to be conceived.

Indian judges, in particular, appreciated his enthusiasm for understanding legal decision making processes in the intensely plural and messy context of a massive hybrid legal system. When I took over from him at SOAS in the early 1980s, we did not get much of a chance to work together, as he stage-managed a dramatic exit into early retirement, leaving me to my own wits. Glad to have survived this, I obtained belated approval of my predecessor in an almost embarrassing review of Hindu Law Beyond Tradition and Modernity (New Delhi: OUP 2003) in the Journal of the Royal Asiatic Society, 15.1 (April 2005), pp. 110-112. This grand old man, a true scholar, was evidently misunderstood by many around him and did not endear himself to unfair critics by his sharp wit and intolerance of nonsense. 

Having ended the long wait at the doors of the crematorium, as he once wrote to me, Professor Derrett will be remembered forever, also and maybe specifically in Kerala, as the major British scholar of Hindu law in the world. His legacy lives on in his innumerable publications, in my work, and in the many young people who are not too blinded by modernity to discover today that in bygone times there was a great scholar of Indian laws in London, a true rishi on the banks of the Thames, as it was once put. In his own time, he may have predicted some elements of the future wrongly because he was perhaps, as a lawyer, a little too influenced by colonial predilections and by the dominant legal positivist orientation of his time. This made him believe in the benefits of a Uniform Civil Code for India once the time was right. Today we know that this time will never come, but Derrett’s parting advice in the 1978 book (p.206) is truly far-sighted. He predicted that the new self-image of modern Indian women would make a huge contribution to shaping the legal system of the future into a new ‘people’s justice’. Finally, with explicit reference to former Supreme Court Justice V.R. Krishna Iyer, who is actually much older than Professor Derrett and survives even longer, the parting guidance is that justice, also in India, is prominently and safely placed in the hands of judges. What wise words from a great legal scholar who, in his own way, believed in the rule of law. 

In January 2009, a special panel of the first LASSNET Conference in New Delhi celebrated the contributions of this great scholar to the study of South Asian Comparative Laws and Social Change. An internet search under ‘Duncan Derrett’ yields enormous evidence of the continuing impact of this true polymath and his wide-ranging scholarship. His memory and his work live on. May his fine soul rest in peace.

Arrest of Indian Flag Vessel Owned by Indian Entity,

 can Admirality Jurisdiction be Invoked ?

(By Advocate V.B. Hari Narayan, LL.M., Maritime Law (Soton), Advocate, High Court of Kerala)

An Indian flag vessel owned by an Indian entity was ordered to be arrested by the High Court invoking admiralty jurisdiction pursuant to an admiralty suit filed by an Indian Company on the plea that they have a maritime claim against the vessel. 

The vessel being an Indian flag vessel owned by an Indian entity, can the claimant invoke the admiralty jurisdiction of the High Court to secure her arrest to provide security for its maritime claim, if any, is the short question to be considered. In my respectful view the claimant has approached the wrong forum to redress its grievance and the remedy lies in the form of a civil suit before the appropriate Court of law to be determined based on the place where the cause of action has arisen.  The claimant seems to have approached the High Court on a complete misunderstanding of the basic principles of admiralty law.

The Admiralty Court, originally applied civil law.  At that early stage of the history of the Admiralty Court in the seventeenth and eighteenth centuries, there existed an archaic right, long since obsolete, in terms of which it was possible to arrest the actual person of the defendant, if he was within the realm.  The last recorded instance of such an arrest appears to have occurred in 1780 (Per Dr.Lushington in The Clara (1855) Sw 1 accepted as correct in The Beldis [1935] All ER Rep 760 at 768.).  Any personal property of the defendant within the realm, whether it was the ship or other property, could also have been arrested (The Heinrich Bjorn(1885) 10 PD 44 also cited in The Beldis [1935] All ER Rep 760 at 765.).  It did not matter whether or not the ship had no connection with the cause of action, so long as the ship belonged to the defendant.  The purpose of the arrest was to found jurisdiction (The Beldis[1935] All ER Rep 760 at 767 and the authorities cited with approval.), and to make the defendant provide bail or security for the claim (The Banco[1971] 1 Lloyd’s Rep 49 at 531.).  If the defendant did not appear, the proceedings went on as an action in personam(The Beldis[1935] All ER Rep 760 at 767.).

Historically, a ship travelling the world’s oceans is likely to encounter legal hurdles as part of its operation or trade. Thus, where a claimant has a claim against a ship, his chance of recovery would be very limited if the ship is permitted to leave the jurisdiction because the ship owner would be in a foreign jurisdiction and the only asset within the claimant’s jurisdiction would be the ship. A practical solution to this problem was achieved through a special legal regime of actions against the ship where the ship herself is regarded as the wrong doer or the defendant as the case may be. Historically such actions were subject to the Admiralty Court in England which was the only Court that had jurisdiction to proceed against the ship in respect of certain claims. This was followed by several national laws and international conventions crystallizing the procedure for arrest of foreign ships. The most popular and commonly used convention is the International Convention for the Unification of Certain Rules relating to the Arrest of Sea-Going Ships 1952. The Convention, which entered into force at the international level on 24 February 1956, has received the ratification or accession of 78 States and represents the most commonly found ship arrest law worldwide.  The convention is also incorporated into many of the major admiralty jurisdictions. However, India has not ratified this convention, nor the subsequent Convention in 1999. Though India has not ratified many International Conventions governing the field, by virtue of the decision of the Hon’ble Supreme Court of India in MV Elisabeth v. Harwan Investment & Trading Pvt.Ltd (AIR 1993 SC 1014) the High Courts (including the chartered High Courts of Bombay, Calcutta and Madras which were earlier conferred with admiralty jurisdiction under colonial legislations) in India could look upon such conventions by treating them as part of common law and made applicable for enforcement of maritime claims.

None of the colonial legislations by virtue of which Courts in India started exercising admiralty jurisdiction define an arrest.  Instead, Article 1(2) of the International Convention for the Unification of Certain Rules relating to the Arrest of Sea-Going Ships 1952, defines arrest as meaning “the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.”  The arrest of a ship will result in the physical detention of the ship.  

The arrest of a ship must strictly satisfy the requirements stipulated in Article 1 which provides for different types of claims that can be classified as maritime claims.  There is no room for the exercise of an interpretation of the legislation solely in the interests of justice (The Kommunar No. 2 [1997] 1 Lloyd’s Rep 8 at 11.).  In other words, it is not enough to argue that the justice of the case demands that the ship be arrested because the court does not have equitable jurisdiction to order the arrest of a ship. 

Article 2 of the International Convention for the Unification of certain rules relating to the Arrest of Sea-Going Ships, 1952 (in short the Arrest Convention) states that, a ship flying the flag of one of the contracting states may be arrested in the jurisdiction of any of the contracting states in respect of any maritime claim. A plain reading of the above provision will make it clear that the concerned High Court before which a claim is brought asserting maritime claim can in exercise of the admiralty jurisdiction arrest such foreign vessel if it is apprehended that she will leave the jurisdiction thereby rendering the claimant with no remedy of recovery. The whole purpose of arresting the vessel being to secure jurisdiction and obtain security for the claim, in my respectful view the same is applicable only for foreign vessels and not Indian owned, Indian registered ships. Because as far as the claim is against an Indian owner, the claimant can very well approach the concerned Civil Court under the provisions of the Code of Civil Procedure and get an order of attachment against his properties. Since the claimant has a very effective remedy by way of approaching the Civil Court, it is not necessity to approach the High Court invoking its admiralty jurisdiction to arrest an Indian vessel. Therefore, invoking the admiralty jurisdiction to arrest an Indian vessel owned by an Indian Corporation/ Company is not at all warranted and will result in the claimant being held liable for wrongful arrest.

High Court of Kerala on Cases Involving Co-operatives, 2012

(By R. Muralidharan, Deputy Registrar of Co-operative Societies (Planning & Legal), Puducherry)

Quantitatively not many decisions have been rendered by the High Court of Kerala on co-operatives, but qualitatively the judgments have the impact on the working on the co-operative societies. The judgments delivered during the year 2012 are given, chapter-wise.

Management 

Even though the ultimate power of bank is with general body, S.28 authorizes the general body to constitute the managing committee and entrust the management of the affairs of the society to such committee. Of course wherever provisions of the Act and Rules and by-laws required ratification of the decisions of the managing committee by general body, the same is done. However the question cropped up before the Division Bench in Thrissur District Co-operative Bank Staff Association v. Registrar of Co-operative Societies (2012 (4) KLT 631) was whether the managing committee which is the delegate the general body can further delegate important functions like loan sanctioning to sub-committees constituted by them that too only with employees. Managing committee itself is a delegate of the general body and therefore they cannot delegate essential functions entrusted in them under the by-law further to another delegate constituted by them.

Sanctioning of loan probably is the most important and sensitive work because if loans become bad, bank will suffer and high bad debt will lead to even closure of the bank. Sanctioning of the loan is certainly a managerial function which cannot be delegated to clerical staff of the bank. There is no scope of completely eliminating members of the managing committee from the committees and sub-committees constituted for sanctioning of loan. However, it may not be possible for the bank to have every loan application paced before the full committee for sanctioning. So much so delegation could be possible by constituting sub-committee with at least two members of the bank and along with probably Secretaries like Secretaries, Managers or even Assistant Managers. Further, petty loans could be authorized to be approved by General Managers or even Branch Managers under proper guidelines.

Privileges 

(i) The question raised in Manjeri Co-operative Urban Bank Ltd. v. State of Kerala (2012 (1) KLT 51) was whether the remission contemplated in the G.O. be claimed by a co-operative society which acquires land for purposes unrelated to its business. The society resolved to purchase a parcel of land lying adjacent to its head office for purpose of putting up a building for its use. Thereafter owner of the land who was also a member of the society executed a sale deed. Sale deed was presented for registration with a recital to the effect that as it is executed in connection with business of society stamp duty is not paid thereon. Stamp duty was held payable by the District Registrar. This decision was challenged. It was held that remission from stamp duty is certainly not available to an instrument executed by someone other than a member or officer of the society. There is no provision in the Act or the rules that a society can purchase immovable property only from its members. Unless the instrument is one executed in relation to the business of a society, remission of stamp duty cannot be claimed. The remission contemplated in the second limb of paragraph 1(a) of the order cannot be claimed by a society which acquires land for purpose unrelated to its business. 

(ii) There is nothing wrong in society making capital outlay in the form of a construction of building by acquiring land, but the same should be done only after making proper study about market conditions, availability of tenants and business in the area so that the investment brings reasonable return to the society. The basis condition should be that the capital employed should be productive and should bring reasonable return to the society. Unless the Registrar is satisfied on these matters, no approval should be granted under R.54, no matter the managing committee of the society has passed resolution approving it and that the Memorandum and Articles of Association of the society may authorize it. Even though co-operative societies function like companies wherein the ultimate authority is with the annual general body, it is common knowledge that most of the members are borrowers who have no interest in the management of the society and only for the purpose of taking a loan they take membership. Therefore, much reliance cannot be placed on decision in the general body meeting of the society and so much so, there is necessity for strict control on societies by the statutory authorities, mainly to protect the interest of depositors who are members of the public. Even investment by the society in land and building can only be from profits retained in the form of reserve and no investment should be made in land and building or for any other capital outlay from public deposits retained by the society which have to be used only for business purpose, i.e., as working capital for making advances on interest. Public deposits are debts due to the depositors and societies should not be allowed to borrow for non-productive investments. The funds of the society referred to in R. 54 is own funds and no borrowed funds which include public deposits also, so held the Division Bench in Misbah Salem v. Erattupetta Aided School Teachers Co-operative Society (2012 (4) KLT 423).

Election

Election to the bank was challenged on the ground that the election sub-rules were amended by the director board and did not have approval of the general body, even though the by-laws were amended in terms of the amendment to the Act and that there was no identification of separate ward for reserved category. Allowing the appeal, the Division Bench in Thiruvalla East Co-operative Bank Ltd., v. Sasidharan Pillai (2012 (1) KLT 350) held that once by-law is amended to make membership in the board of directors consistent with provisions of the Act and Rules, then procedure contained in election sub-rules is to be modified by the board of directors or by Administrator and need not have approval of general body, and when election sub-rules provide election to reserved category from the area of operation of bank as a whole, there need not be identification of separate ward for reserved category. 

Disputes

Any dispute arising in connection with employees or officers and servants of the different classes of the societies, including their promotion and inter se seniority, is to be decided by the Co-operative Arbitration Court. The words ‘including their promotion and inter se seniority’ are not meant to be exhaustive or restrictive, but only explanatory of what is already included and that dismissal from service is indisputably a dispute in connection with employment.

Section 70B of the Act stipulates that on the constitution of a Co-operative Arbitration Court every dispute pending before the Registrar or any person invested with the power to dispose of the dispute by the Government or the arbitrator appointed by the Registrar in respect of non-monetary disputes, relating to the local area of jurisdiction of the Arbitrator Court, shall be transferred to such Arbitration Court and the Court shall dispose of the same as if it were a dispute referred to it under S.69. It is evident from provisions contained in Ss.70A and 70B of the Act that the Co-operative Arbitration Court is not a forum subordinate to the Registrar is the dictum in Cheranallur Service Co-operative Bank Ltd., v. State of Kerala (2012 (4) KLT SN 2 (C. No.2)).

Supersession

Order of supersession of Managing Committee was under challenge in Urukunnu Service Co-operative Bank Ltd., v. State of Kerala (2012 (4) KLT 941). Allowing the Writ Petition, the Court held that the power to supersede a committee should be exercised with due caution and circumspection and only in cases where it is really called for. Mere default or failure to comply with the provisions of the Act if found to be true cannot be a ground for supersession, unless it is shown that there is persistent wilful negligence and willful disobedience. The report on inspection under S.66(2) is not intended for initiating steps for supersession but for passing order to direct the society to take such action the Registrar consider it necessary. The action of the Registrar contravene S.66 and R. 66(5) of the Rules. It is not that initiation of proceedings under S.32 is prohibited on the basis of a report on inspection obtained under S.66(2), but only in cases where on the basis of the report on inspection if the Registrar is satisfied that the continuance of the committee would be extremely prejudicial to the interest of the society which leads to any of the grounds mentioned in sub-s.(1)(a) to (d) of S.32. 

The Court went to hold that no Managing Committee could be proceeded against for misdeeds of a previous managing committee and that S.32 of the Act can be invoked only against a committee which has committed the irregularities or defects. Such a finding has to be objectively arrived and specifically entered. The consultation under S.32(2) is not necessary only in case the Registrar is of the opinion that it is not practicable to do so. When there was enough and sufficient time for doing the consultation and when the same was avoided it would appear that the dispensation of the consultation was done with ulterior motive. No valid ground is made out for invoking for dispensation of consultation.

Appeal

Petitioner had obtained an award in a monetary dispute on the file of the Joint Registrar. Respondent preferred an appeal under S.82. The petitioner filed a memorandum of cross objection in so far as Joint Registrar had negatived his claim. Co-operative Tribunal returned it with a direction to resubmit it with prescribed fee. Same was challenged in Sinny Joshy v. Kerala Kera Karshaka Sahakarana Federation Ltd. (2012 (1) KLT 415). Dismissing the Writ Petition, the Court held that all provisions relating to an appeal shall apply mutatis mutandis to cross objection also. However it is not necessary to assign a separate number to the memorandum of cross objection. It necessarily follows that R. 123 stipulating the rate of court fee payable in an appeal applies to cross objection also. Even the form and contents of the memorandum of appeal apply to memorandum of cross objection as well. Court fee is payable on the memorandum of cross objection like that on the memorandum of appeal. The memorandum of cross objection has an independent existence even if the appeal is withdrawn or dismissed for default. Only the necessity to file a separate memorandum of appeal and take out notice to the opposite party is obviated. The insistence to remit nominal fee under the Legal Benefits Fund Scheme in addition can be extended to the memorandum of cross objection also.

Employees

(i) Even though Rules do not stipulate that the experience should be in banking or financing, the Public Service Commission, while scrutinizing the application can certainly appreciate the experience with reference to the post for which the selection is made and if they find that the applicant’s experience is not suitable for the employment, it is up to them to reject the application. The very object of entrusting selection for high level appointment in banks to the P.S.C. is to have the selection made by a specialized body with expertise to make selection in a fair and transparent manner. Experience prescribed has to be understood with reference to the nature of employment and so much so, experience in sales is not the one that is suitable for appointment as General Manager of a bank. Experience required for Deputy General Manager and General Manager of co-operative banks should be banking and finance and not in sales or marketing.

Considering the magnitude of operation of the District Co-operative Banks and the State Co-operative Banks and their commitment and responsibility to the members and public at large, the Division Bench in District Co-operative Bank v. Dinesh (2012 (4) KLT SN 66 (C. No.52)) felt that the Government should immediately amend the Rules suitably, so that only well experienced and qualified persons are appointed in high positions in banks, like Deputy General Managers and General Managers. Rules should give sufficient flexibility to the P.S.C. to assess the general suitability with reference to educational qualification and experience so that undesirable persons do not get selected to high positions in the bank for direct recruitment with guidance to P.S.C.

S.80 authorizes the Government to prescribe qualification for employment of staff and officers of the co-operative societies in consultation with the State Co-operative Union. There should be no difficulty for the Government to get very qualified officers in the managerial cadre from any nationalized banks either on absorption basis or on deputation basis for appointment as Deputy General Manager or General Manager. There will be nothing wrong in even appointing retired bank officers for a tenure of three or five years on contract basis because well experienced people are required to run fairly being banks.

(ii) Where the special rules for recruitment for a post in any service prescribes qualification of experience it shall, unless otherwise specified, be one gained by person in temporary or regular appointment in capacities other than certain exempted categories after acquiring the basic qualification prescribed for the post, as held in Mohammed Shafi v. Kerala Public Service Commission (2012 (4) KLT SN 7 (C. No.7)).

(iii) Whether the Kerala State Co-operative Pension Board is empowered to adjudicate on the issue of appointment of the employee is the question which arose for consideration in Narayana Kuruppu v. Kerala State Co-operative Employees Pension Board (2012 (2) KLT 207). Allowing the petition it was held that if an employee was not eligible for pension, it should have been made clear even while receiving the contributions and not after considerable period of time. Apart from that the authority of the Registrar in making the appointments cannot be found to be wrong by the Pension Board and while denying the pension of the employees, the Board cannot adjudicate on the issue whether the appointment is bad for any reason.

(iv) Going by the definition of the term ‘average pay’ and the term ‘pay’ as amended with effect from 1.4.1998, the stand taken by the pension board that dearness allowance can be reckoned as part of pay from 1.4.1998 is perfectly in order, as held in Chacko v. Kerala State Co-operative Employees Pension Board (2012 (2) KLT SN 41 (C. No.41)). The average pay drawn by an employee during the last ten months of his qualifying service alone can be taken into account. The dearness allowance, if any, paid to the petitioner for the period prior to 1.4.1998 cannot be reckoned as part of ‘pay’ for the purpose of computing the pension payable to him.

(v) Issue involved in the appeals before the Division Bench in Kerala State Co-operative Employees Pension Board v. Nanu (2012 (4) KLT 163) pertains to interpretation of clause 22 of the Kerala Co-operative Societies Employees Self-Financing Pension Scheme 1994. It was held that the upper limit of Rs.20,000 with respect to average pay as well as upper limit of Rs.10,000 with respect to monthly pension is applicable to all co-operative employees irrespective of their length of qualifying service. So also the upper limit of 30 years with respect to qualifying service is also applicable in the case of all the employees. This is well clear from the amendment brought into clause 22 of the scheme. The appeals were allowed.

Miscellaneous 

(i) The competence of the State Government and the Registrar of Dairy Co-operatives to interfere with the decision taken by the Kerala Co-operative Milk Marketing Federation Limited, to increase the selling price of milk by Rs.5 per litre is the issue raised in Kerala Co-operative Milk Marketing Federation Ltd. v. State of Kerala (2012 (1) KLT 139). Allowing the Writ Petitions, the Court held that the by-laws of the Federation empower the board of directors to fix the procurement price and selling price of milk. There is no provision in the Act or Rules which stipulates that a co-operative society, whether it be a co-operative society of dairy farmers or of artisans, cannot fix the selling price of the goods produced and marketed by it, without the prior approval of the Government or the Registrar. The respondents have no case that the Co-operative Department has issued any direction or instruction regarding the procurement prices or the selling price of milk. The respondents have also no case that the decision taken by the board is ultra vires to the objects of the Federation or that the increase in the selling price of milk will disturb the peaceful and orderly working of the Federation or is contrary to the better interest of the Federation. On the other hand, the contents of the report which was submitted in pursuant to the study ordered by the Government themselves, make it evident that with the existing procurement price regime, the members of the Federation (dairy farmers) are not even able to realize the cost of production of milk. That apart, the Government had agreed, when it issued order that it will give full freedom to the Federation to fix the price for its products and the price paid for milk collected from its members. Such being the situation, it cannot be said that any circumstance warranting invocation of the power under R. 176 exists in the case of hand, to rescind the decision of the board. 

The Court also found that the Government or the Registrar cannot regulate and control the working of a society in exercise of the power conferred on them under the proviso to S.9 without taking into account the adverse economic impact that any regulatory measure adopted by the Government or the Registrar will have on the members of the society which in the instant case is the Federation and consequently on the members of the primary dairy co-operative societies, approximately 8 lakhs in number. Similarly, S.66A does not empower the Registrar to issue a direction to Federation to cancel the decision taken by it increase the selling price of milk. On the above premises, the writ petitions were allowed and the orders of the Government were quashed.

(ii) The questions before the Court in Diwakaran v. State of Kerala (2012 (1) KLT 633) were whether S.16(1)(b) & (c) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952 apply to State/District Co-operative Bank and whether such banks are covered under the Act; and whether the State Government has power to grant exclusion under S.16(1)(b). Allowing the writ petitions filed by the employees of the bank, it was held that there is no control of the State Government over the State Co-operative Bank and District Co-operative Banks registered under the Kerala Co-operative Societies Act. S.16(1)(c) is to the effect that the Act does not apply to any establishment ‘set up’ under any Central, Provincial or State Act. The legislature has cautiously used the word ‘set up’ in contra distinction to the word ‘registered’ under S.16(1)(a) of the Act with a purpose. It needs no elaboration to find out that the State Co-operative Bank and the District Co-operative Banks are not set up under the State Act even though registered under the Kerala Co-operative Societies Act. The irresistible conclusion is that Ss.16(1)(b) and (c) do not apply to the State Co-operative Bank or the District Co-operative Banks and they are covered by the Act. True it is that S.16(2) empowers the Central Government by notification in the official gazette to exclude a class of establishments from the operation of the Act. The power to so exclude is available only to the Central Government and that too by notification in the official gazette either prospectively or retrospectively. The Regional Provident Fund Commissioner has absolutely no authority to grant exclusion.

Right  to  Information 

Writ appeal was filed before the Full Bench of the Kerala High Court in the Mulloor Rural Co-operative Society Ltd. v. State of Kerala & Ors. (2012 (2) KLT 865 (F.B.) = AIR 2012 Ker. 124), against judgment of the learned Single Judge holding that a co-operative society registered under the Kerala Co-operative Societies Act answers the definition of ‘public authority’ as defined under S.2(h) of the Right to Information Act, 2005 and hence the Registrar of Co-operative Societies was within his powers in issuing the order impugned in the writ petition directing all societies to constitute authorities under the RTI Act for furnishing information sought about societies. A reference to the Full Bench was made by the Division Bench doubting the correctness of the judgment rendered in Thalapalam Service Co-operative Bank Ltd., v. Union of India (2009 (3) KLT 1001) wherein that Bench took the view that a society would become a ‘public authority’ within the meaning of S.2(h) of the RTI Act only if such society is ‘substantially financed by the Government’. 

Co-operative societies are not institutions established under the KCS Act and, therefore, are not statutory authorities, though all co-operative societies are required to be registered under the KCS Act. Under S.27 of the KCS Act, the final authority of a society vests in the general body of its members. Every society is managed by the managing committee constituted in terms of the by-laws of the society as provided under S.28. Right from registration onwards every society is subject to strict control by the statutory authorities like the Registrar, Joint Registrar and also the Government. Further, the society’s accounts are to be compulsorily audited by statutory audit team constituted under the KCS Act. Ss.65, 66 and 68 authorize inquiry, inspection and even levy of surcharge on erring managing committee members and employees of any society, if they are involved in misappropriation or mismanagement of the society. S. 32 authorizes the Registrar to supersede the managing committee of a society for mismanagement and to appoint an administrator to manage the affairs of the society. In short, there is all-pervading control over society by the statutory authorities including the Government.

The functioning of the society is absolutely democratic in as much as the ultimate power is vested in the general body and the members elect the managing committee to manage the affairs of the society. The society is constituted with members funds, mainly as subscription towards share capital and even deposits from public are accepted by the societies engaged in banking business. In other words, absolute transparency about the affairs of the societies is the fundamental requirement for societies to run in compliance with the statutory provisions.

It is worthwhile to note the Constitution (Ninety-seventh Amendment) Act, 2011, by which right to form a co-operative society is declared as a fundamental right under Art.19(1)(c) of the Constitution and under Directive Principles Art.43B is introduced providing that the State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies. The importance of the co-operative movement in the development of the nation is not only recognized but is made a basic feature of the Constitution. The objective of the RTI Act as is evident from its preamble itself is to promote transparency and accountability in the working of every public authorities.

The Court emphasized that no democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. Every co-operative society registered under the KCS Act runs following the fundamental principle of democracy that is, through decision by majority that too, through elections. So much so it is fundamental that every member of the society, every depositor and every one interested in the affairs of the society are entitled to get all information relating to the society which is possible only if R.T.I. Act is implemented against co-operative societies. However, it may be noticed that sufficient safeguard is made in S.8 of the R.T.I. Act which prohibits furnishing of certain items of information on which statutory immunity is provided thereunder for obvious reasons.

The Full Bench takes exception to the attitude of the managing committee of a society to refuse to furnish information relating to the society itself should be a matter of serious concern by the Joint Registrar because people tend to cover up only wrong things and not things which are properly done. It is noticed that the completion of statutory audit of societies is delayed by four to five years and most of the managing committees escape from being caught for mismanagement only because of delay in auditing, detection of irregularities and delay in initiation of surcharge proceedings thereafter. The Court is of the view that at least vigilant members and the public by obtaining information through R.T.I. Act will be able to detect and prevent mismanagement in time. The question posed by the Division Bench was answered by holding that co-operative societies registered under the KCS Act are ‘public authorities’ within the meaning of S.2(h) of the R.T.I. Act. The writ appeal stood dismissed by confirming judgment of the learned single Judge declaring the applicability of the R.T.I. Act to co- operative societies and by upholding the circular issued by the Registrar of Co-operative Societies.

The Right to Service -- A Tool for Better Governance

(By D.B. Binu. Advocate, General Secretary, Human Rights Defence Forum, Ernakulam)

A memorandum was submitted by Anticorruption Peoples Movement to the Chief Minister of Kerala in a public meeting organized at Kochi on 5.6.2011.One of the demands in the memorandum was to give effect a draft bill submitted by the Human Rights Defense Forum under the caption “The Right to Service Act 2011”.  The Chief Minister announced few days after the said public meeting that the government is proposing to bring legislation that assure its service to the people within a time frame acknowledging the right of the people to get service within a reasonable time.  In the draft bill submitted by the Human Rights Defense Forum, there were clauses to deal sternly with officers who have failed to ensure service within the stipulated time. Penal clauses including fine and disciplinary proceedings were some of the important salient features of the draft bill. However the bill proposed by the government and that ultimately become the Right to Service Act 2012 failed to incorporate  stringent clauses in the Act with the result the Act has become a mere eye wash. The assurance of the government for guaranteeing service within a reasonable time becomes a fallacy   for more reasons than one. The Act has left the people in lurch without providing a forum to agitate his grievances other than the same department where as the Act such as Right to Information Act 2005 provided an independent forum to agitate the grievances of the applicants.

The fine that could be imposed on officer who fail to ensure service under the Right to Service Act itself is meager and compared to the loss of the person deprived of the assured service, it is insignificant. That is to say, the Act failed to ensure service within a reasonable time frame.  Various departments have been given a big leverage to fix the time limit for entering service and authorities such as 1st and 2nd appellate authorities under section 3 of the Act. Even the services that could be given across the table on the same day and which require no investigation or spot inspections have been now made available unreasonably many days after the date of application. For example ownership certificate of the building or possession certificate etc which has records readily available at the office for verification.

Completely overlooking section 3 of the Act, the Personnel Department for Administrative Reforms, issued orders fixing time limit for tendering service by some departments. These orders are legally unenforceable since Personnel Department for Administrative Reforms has no power to issue such orders in view of the specific power given to each department for issuing such orders.

The Act does not provide any provision for payment of compensation to the citizen who has sought service. The enactments in other States have made provisions for payment of such compensation. 

The Office of the Chief Minister has a Grievances Redressal Cell. That office presently has not been brought under the Right to Service Act. It is only reasonable to ensure at least some services such as medical relief etc within the ambit of services. 

The services covered under the citizen’s charter prepared by the departments should be compulsorily included in the definition of service under the Act and the list should be one of an expanded rather than a short listing the items already covered by the citizen’s charter. 

In order to ensure the timely service to citizens, the officers must be available at the office during the period of office hours and that his disposal of files should be monitored periodically lest there will be accumulation of arrears justifying a demand for enlargement of  stipulated time. In order to ensure the presence of officers at the work place, punching system in all offices can be introduced. Further use of mobile phones at the office should be restricted and all calls should be transferred through PBX system.

Further file keeping and digitalization of files have to be streamlined promptly with data back up. Considering power failures, the computers should be connected to centralized UPS. 

The officers should be given trainings for keeping files and updating digitalized back up data and for improving public relations. They should also be given legal awareness on office matters and legal implications of their actions /omissions. 

‘Lawyers, I Suppose, Were Children Once’

(By P. Deepak, Advocate High Court of Kerala)

Charles Lamb is credited with the above quote. It was used as an epigraph with telling effect by Harper Lee in her seminal masterpiece 'To Kill a Mocking Bird’. Devouring the book in my late teens the import of that supposition escaped me in very much the same way I encountered Mr. Bumble in Oliver Twist mumbling ‘If the law supposes that, the law is an ass-an idiot when it was put to that much harassed husband that the law supposes a wife to act under her husband’s direction.

With the hindsight afforded by more than fifteen years in the learned profession I can vouch with supreme candour that Charles Lamb missed the mark by a mile. Substitute ‘once’ with ‘forever’ and employ the present tense and you have hit the jackpot-' Lawyers, I suppose, are children forever’. In fact, you could even dispense with the supposition and state affirmatively-’Lawyers are children forever’. Let me put it this way. We lawyers are perennial schoolboys. Our whole life is one endless sojourn from vacation to vacation interspersed with a few inconvenient working days. Consider this little scene that is being played out and will be played out in courts unborn and accents yet unknown-January 2013 is curtains already. The first month of the year whizzed away into oblivion even before the heavy eyes had so much as begun to focus after saying an effervescent goodbye to an ordinary 2012. Pint-sized February is following suit, disappearing as swiftly as that cheap fag wedged between the twitching fingers of the lonely traveller sighting his night train roll up alongside the crowded platform. Three neat drags and February 2013 too would be consigned to history.

Back in the corridors of our High Court it wouldn’t be long before unprepared counsel and unwieldy dockets are shooed away with a cursory judicial diktat-'post after vacation’. From sporadic instances in the early weeks of March it would build up into a crescendo during the fortnight immediately preceding the court recess. The briefest of stutters or the faintest hint of a stammer and the hapless counsel would be greeted with the inevitable writing on the wall-’post after vacation’. Plaintive cries would occasionally elicit the following patronizing rider-Petitioner is at liberty to move the vacation judge for urgent orders. Call the next case !’

More often than not the cue is supplied by the counsel himself. Apprehending a sudden death to his ill-conceived brief at the hands of the conscientious judge dispensing wholesome justice oblivious of the impending vacation the diffident counsel hurriedly whispers under his breath, even before the court officer has had time to hand over the file, ‘Would your lordship have this matter after vacation?’ This is followed by a marked silence and collective intake and holding of breath as his colleagues present in the court hall await the judicial response to the above ‘submission’.

Often it chances that his lordship, otherwise magnanimous in granting adjournments, would suddenly be reminded of the precepts underlying Order XVII. He would then decry mounting arrears and ruthlessly conduct the last rites of the entrapped case himself much to the dismay of the mortified counsel. Witnessing this unhappy carnage the others, waiting for their cases to be called, make a mental note to expunge any mention of vacation in their submissions.

At other times his lordship, being reminded of similar such timorous submissions made by him during his time spent at the bar, would smile knowingly at the hesitant counsel. His lordship would then stare endlessly in all seriousness at the High Court calendar placed by his side and decree ‘post after vacation’ as requested by the grateful counsel. The court officer would then do a back-somersault to catch the case bundle flung from the rarefied heights of the judicial chair. Taking pride in the fact that his shoulder and wrist still packed a punch to fling cumbersome case bundles, reminiscent of his long throws to the keeper from the boundary ropes on the college cricket ground, his lordship would then wait patiently for the court officer to catch his breath and call the next case.

On such occasions, even before the court officer has gathered his wits and laid his hand on the next case bundle, the petitioner’s counsel, drawing courage from this unexpected judicial indulgence, would sheepishly attempt to ride his luck further. Running his fingers through the sweat sodden collar he would cough hoarsely and submit in an undertone ‘Would your lordship extend the interim order till such time?’ He would then beckon the court officer to let go his prized catch and return the earlier case bundle to his lordship.

Seeing his perfect long throw boomeranging on him in this manner his lordship would then look enquiringly at the Government Pleader. The latter, engrossed in taking a sneak at the ‘Calendar Application’ in his new android smart-phone and counting the number of days left in the term, hastily rises to meet the judicial gaze. Realizing that the system of jurisprudence prevalent in the country is still adversarial and that it would be amiss not to object, no matter where his preferences lay, the Government Pleader reminds his lordship that the pleadings are, in fact, complete and that he is more than ‘ready’ to argue the case, not believing his own words even as it is spoken.

Confronted with this awkward topspin lob from the Government Pleader his lordship would then slide his fingers along the length of the file and take a sidelong glance at the clock mounted on the wall. Obtaining no solace from that stubborn timepiece which still counted sixty seconds to the minute his lordship would next scan the proceedings sheet with unconcealed irritability. The petitioner’s counsel, in the meanwhile, vaguely sensing that things are not going the way he would have liked it to go, would begin to nervously tug at the strings of his case bundle preparatory to gathering his papers and stating the facts. Not surprisingly, the Gordian knot refuses to unravel and mocks his clumsy and sweaty fingers. The sheaf of papers slips from beneath the knot and drops to the floor. His neighbour, awaiting his turn at the sacrificial altar, immediately dives under the desk to retrieve the fallen papers for the unfortunate man. Mistake not, it is no brotherly love or any sense of altruism that prompts the neighbouring counsel to act with such alacrity in recovering his colleague’s papers. Rather, prolonging the latter’s misery might possibly stretch the time to half past four and he could then get his interim order extended in the free-for-all that marks the judicial proceedings beyond the said hour.

Thanking his neighbour profusely for retrieving his papers the petitioner’s counsel would then gather the papers with a shaky hand and hastily iron out the creases of the original petition which had not been opened since that fortunate day when the matter had come up for admission before a non-regular court and the stand-in judge, who was in a most generous mood for not having to rummage the vintage original petitions otherwise assigned to him, had granted him an unconditional interim order.

By this time the initial optimism of the Government Pleader had clearly waned. Ruing the moment that prompted him to say that he was ‘ready’ with the matter the Government Pleader attempts a frantic reading of the counter-affidavit. Not having prepared the affidavit himself he would then ogle feverishly at its contents trying to discern the purported stand of the government in the matter. Deriving no assistance from the counter-affidavit he would plod through the Writ Petition and scan the order impugned. It is then that the painful realisation hits him that, but for the solemn oath of the officer concerned incorporated at the beginning and the end, the counter-affidavit is merely a verbatim reproduction of the impugned order and by extension as cryptic as the order impugned. Knowing his lordship’s penchant for proper pleadings and the mot juste the Government Pleader braves himself for the worst.

All this while, unknown to the hapless counsels and unseen by them, a faint smile could be seen spreading across his lordship’s face. The case bundle could be seen subjected to a most careful scrutiny, particularly, at the flipside. The court officer is summoned from his reverie and directed to sift the papers in the case bundle thoroughly. The court officer does his bidding and shakes a forlorn head to the judicial query. The stenographer is then reined in to assist. She too painstakingly separates the individual sheets and shakes her head.

There is no mistaking it. The counter-affidavit is NOT in the file. His lordship turns on the Government Pleader like a wounded tiger. ‘Where is the counter-affidavit? When did you file it?’ his lordship thunders. The Government Pleader can be seen shaking in his boots. ‘Maybe it was returned defective’, he stammers. ‘Maybe!’ his lordship bellows again. He turns on the government pleader with a vengeance. ‘Are you suggesting that I should personally verify whether it has been filed or whether it has been returned defective?’ His lordship begins to expand on the laxity of lawyers in general, and government pleaders in particular. Civil Rules of Practice and Rules of the High Court are expounded for the benefit of all present.

The harangue continuous unabated until the distant peal of the court-bell brings the steward hurrying to get behind the judicial chair and wait for its occupant to rise. His lordship pauses abruptly and rises like a phoenix from his chair. Flexing his wrists for the second time that day he flings the case bundle down and mutters-'Post after vacation....interim order extended by two months......’ (The petitioner’s counsel cannot but suppress a smile seeing the much harried face of the Government Pleader and he prepares to thrust the papers back in the bundle)'......on condition that the petitioner deposits 50 % of the disputed demand....’ The smile dies on the counsel’s lips.‘.......all other cases where interim order is to be extended the same shall be extended for a period of two months. Post all cases after vacation’. His lordship rises with a flourish with the satisfaction of a good day’s job done.