Principles of Desuetude 

(By N. Subramaniam, Advocate, High Court of Kerala)

1. Craies' Statute Law states that desuetude is a process by which an Act of Parliament may lose its force without express repeal. It does not, however, consist merely of obsolescence or disuse; there must also be contrary practice, which must be of some duration and general application. Desuetude requires for its operation a very considerable period, not merely of neglect, but of continuing usage of such a character to infer a counter law or establish a quasi-repeal. Lord Denning M.R. in Buckokev Greater London Council (1971 Ch 655 = 1970 (2) All. ER 193)  has a few words about desuetude “It is a fundamental principle of our Constitution, enshrined in the Bill of Rights, that no one, not even the Crown itself, has ‘the power of dispensing with laws or the execution of laws’. But this is subject to some qualification. When a law has become a dead letter, the police need not prosecute, nor need the Magistrates punish. They can give an absolute discharge.”

2. This principle does not appear to have been used so far to hold that any statute has stood repealed because of this process; but the Supreme Court of India has expressed its opinion that this principle could be made applicable to Indian statutes also. According to the Supreme Court, a citizen should know, whether despite a statute having in disuse for long duration and instead a contrary practise being in use, he is still required to act as per “dead letter” and according to Supreme Court; it would advance the cause of justice. The Supreme Court goes further to say that there is need for its implementation, because persons residing in India, who have assured fundamental rights, must be protected from their being prosecuted and punished for violation of a law which has become a “dead letter.” The Supreme Court in ((1995) 3 SCC 434 = AIR 1996 SC 2856 (Municipal Corporation for City of Pune v. Bharat Forge Co. Ltd.) has dealt with this aspect.

3. This principle has already been in vogue in respect of valuation made for different items under Compensation For Tenants’ Improvements Act, 1958. In Table 1 published under S.13(1)(a) of the Act; where the price of 1000 coconuts ranges from ` 130 to ` 380 in various districts; for arecanuts ` 16 to ` 38.75 in various districts, pepper per pound ranges from 0,62 ` to ` 1.59. and price of paddy per para ranges from ` 2-19 to ` 3-30 in various districts. Similar as the rates for costs of cultivating and harvesting of the crop of paddy and cost of planting, protecting a coconut tree, arecanut tree, Jack tree, pepper vine etc. 

4. Adverting to AIR 1964 SC 1179 State of M.P. v. Bhopal Sugar Industries LD1, (AIR 1964 SC 1590 Narottam Kishore Deb Varman v. U.O.I. ((1979) 4 SCC 642), H.H. Shri Swamiji Amar Mutt  v. Commissioner of HRE Dept., ((1984) 1 SCC 222) Motor General Traders v. State of A.P., ((1986) 3 SCC 385) Rattan Anja v. State of Tamil Nadu ((1990) 1 SCC 109) Synthetics and Chemicals Ltd. v. State of U.P., the Supreme Court of India in paragraph 15 of its judgment reported in ((1998) 2 SCC 1) Malpe Viswanath Acharya v. State of Maharashtra has stated that “ a statute which when enacted was justified, may, with the passage of time, become arbitrary, and unreasonable law, should not be unjust to one and give disproportionate benefit to another.”

Check Cheque Cheating

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

In a cheque there are three parties - drawer, drawee and payee. Payee is the person who receives the cheque amount. Drawee is always a bank. Drawer is the person who draws the cheque. Drawing means writing the amount, date and signature on a cheque. Then only a cheque becomes a valid cheque. Otherwise it is defective one and has no value. In the ordinary parlance, drawing means putting the signature on the right side bottom of a cheque.

Lending and borrowing are the main functions of banks and other financial institutions. They demand proper and sufficient securities for availing loan. Ordinary people is unable to afford proper and sufficient securities. So such people turns to the local and unscrupulous money lenders for their urgent needs. The money lender gives money on signed cheque without writing amount and date and other securities like promissory note and property documents.

Once the borrower fails to repay the loan amount, the lender writes amount of his choice and date and presents the same for encashment. Thus starts criminal case. In almost all such cases, the amount claimed is very very high. At this stage only the borrower understands the gravity and seriousness of the cheque issued without writing amount and date. Several such persons have been ruined beyond repair.

A welfare Government is duty bound to protect the innocent borrowers and prevent the unscrupulous money lenders from their unfair trade practice. In the existing cheque law, writing amount and date need not be in the hand writing of the drawer. It can even be typing. Drawer’s signature presumes the correctness of the amount and date. In case the law insists to write amount and date on the cheque in the drawer’s handwriting, the money lender’s mischief shall be defeated and save lakhs of borrowers.

Double Justice

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

In our criminal justice system, State is the complainant. Police represents the State. Investigating the case, filing charge sheet, adducing evidence, and making ground for conviction of the accused are the prerogatives of the police. Trial, appeal and revision are the hierarchy of the courts. If the Trial Court is magistrate court, sessions court is the appellate court. High Court is the revisional court. If Trial Court is the sessions court, High Court is the appellate court and Supreme Court the revisional court. It Trial Court convicts the accused, he goes appeal to the appellate court. If the accused is acquitted, the police may go for appeal to the appellate court, where the convicted accused goes. If the accused’s conviction is confirmed in appeal he goes for revision. In case the accused is acquitted in appeal, the police may go for revision in the same court. There is one trial, one appeal and one revision.

The Criminal Procedure Code provides provision for filing private complaint direct to the Court. The Trial Court may acquit or convict the accused. If the accused is convicted, he goes appeal to the appellate court. If the accused is acquitted, the complainant has to go to the High Court with a Special Leave Petition under Section 378(4) of the Code. In a complaint case, accused’s appellate court and complainant’s appellate court are different. Hence, equality before the law or the equal protection of the laws do not work. It is a violation of Article 14 of the Constitution. So, there needs modification in Section 378(4) of the Code to make the appellate court one and the same to the accused and the complainant.

Organ Transplantation and the Law

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

Gist of the paper presented on 30.7.2011 at the National Workshop conducted by Indian Medical Association, Kerala, at I.M.A. Hall, Kochi

1. Statutes can have an ethical foundation. Juvenile Justice Act rests on ethics of Child Rights. The Legal Services Authorities Act rests on the ethics of mediation and conciliation. Abolition of exploitation of children has an intrinsic ethical value. So is the case with resolution of dispute by way of conciliation. Commercial dealings in human organs is per se unethical, according to the Transplantation of Human Organs Act, 1994 (TOHO Act, for short) (See para.2,Statement of Objects and Reasons of TOHO Act, 1994.) . But this itself is a questionable postulate. The arguments in favour of commercial transactions of human organs too have an equal (or more) formidable counter ethical foundation.

2. Demand overweighs supply in transplantation scenario. It so happens despite high success rate in transplantation treatment. India is ranked second (after the United States) in kidney transplantation from live donors. Roughly 3,200 to 3,500 transplantations occur every year. We have experts and expertise. But, non availability of organs, remains as the major obstacle in the life saving ventures. Conventional mindset cannot readily accept Scott Russell who visulised “body as property”.  But even in United States, law treats organs as national assets (Organ Transplantation and Transportation Act.) and not an individual property, capable of being sold or purchased. The “final Rules”(1998) in the United States aim at “equitable allocation of organs” based on “sound medical judgment”.

In US, it is reported that despite the high success rate of 95+ % in organ transplantation, 10 persons die every day due to non obtainment of ‘body parts’.

3. Our options need not be necessarily between the present system of donation on the one hand, and the free market of organs with statutory support, on the other.

There is an option in between - A benevolent statute which encourages donation of organs by taking a pro active role - a motivating statute that explores the possibilities of incentives, compensation, concessions, reservations, etc. A catalytic statute is long over due, which should replace TOHO Act that failed to explore such possibilities. Also there is a need to educate the mass and to make them familiar with the dangers of the orthodox reluctance to part with the ‘parts’ even on death.

4.  TOHO Act creates procedural hurdles as well. Those may act as obstacles to the patient in critical situations. Thus the TOHO Act does violence to the ratio laid down by the Supreme Court of India in Paramananda Katara (AIR 1989 SC 2039) which indicated that no regulations or 'law’ can intervene to avoid/delay the proper and timely discharge of duty of a doctor. TOHO Act, thus doesn’t stand the test of Art.21of the Constitution, dealing with a citizen’s right to life and right to live, as explained by the Supreme Court in Paramananda Katara.

5. A better regulatory legislation may

-- prohibit brokerage or any unethical trade of organs for that matter. Even pricing, distribution and allocations can be strictly subjected to statutory regulations. Penal provisions in the TOHO Act (sections 18,19,20 and 21)could be retained, subject to the new regulatory provisions.

-- create a national organ bank with sufficient resources and donor net work.

-- stipulate concessions, reservations, incentives, welfare schemes etc., for genuine donors.

--  legalize the policy of presumed consent with necessary conditions and regulatory clauses.'

6.  TOHO Act is also a failed legislation. Successful prosecutions are rarely reported, though the violations of the Act often hit the headlines. Reports about ‘kidney rackets’ are not rare in India. Also there are complaints regarding misuse of S.9(3) of the Act by which trades occur in the guise of ‘affection’ or ‘attachment’, which is either not detected or indulged by the authorities under the Act.

7.  Therefore, the TOHO Act needs to be revisited and thoroughly revised in tune with the modern thoughts on ethical marketing practice. An egalitarian approach would ultimately find that both life and death occur to the body only and not to the soul.

Lest We Forget – Some old Words Connected with Land and Land Tenures

(N. Subramaniam Advocate, High Court of Kerala)

In days of yore, Jamabandhi used to be conducted every year end.  The process was this. Jamabandhi is an annual settlement of every taluk which is conducted at the end of each revenue year and before the commencement of the succeeding one by the Collector or the Revenue Divisional Officer.  At this annual settlement, the village and taluk accounts are examined and among other things a fresh stock is taken as to the extent of lands held by each ryot and the proper assessment payable by him on such lands.  It is at this stage, that remissions are confirmed and over and under assessments checked with a view to see that justice is done and the village officers are free from corruption or other misconduct.  We have already seen that a ryot is at liberty to acquire new lands, relinquish old ones, or alienate the lands standing in his name; and when such acquisition, relinquishment or alienation takes place, the land revenue payable by the ryot will necessarily vary and it is therefore, only just and proper, that the Government should ascertain before the commencement of the next revenue year, the exact amount payable by a ryot and make proper demand for that amount.  The patta, which may be roughly described as a bill for the assessment due to the Government, is issued only after Jamabandhi.

Patta:-

It is piece of paper issued by the Government, through the village accountant to each individual ryot, specifying the extent and nature of the lands held by him, their survey number or numbers, their classification and lastly the amount or amounts of kist payable upon the several lands.  It is, so to speak, nothing more than a mere bill, issued to the ryot, so as to put him on notice as to the extent of his liability before the demand is actually made.

The question has been sometimes discussed as to the exact scope and importance of a patta; that is to say, whether it could be called or construed to be, in any sense, a document of title.  It was laid down as early as, I Moore’s Indian Appeals  by their Lordship of the Judicial Committee in Freeman v. Fairlie that a patta granted by Collector is not a muniment of title but at best only an evidence of holding or possession according to the fiscal arrangement of the Government.  The case was of course one from the Province of Bengal, but there is hardly anything peculiar to that province, which would make the ruling inapplicable to all States.  In fact, that ruling has been cited and followed by Madras High Court in a number of later cases namely ILR 26 Mad. 286 at 292 Secretary of State v. Kasturi Reddi; ILR 29 Mad 461 at 467 Muthu Veera Vandayam v. Secretary of State and Secretary of State v. T.V. Raghava Chariar.  In the first of these cases Bashyam Iyangar J. expressely calls it mere bill and says that it does not and cannot convey any title to the property.

The nature of a Patta came up for consideration in a somewhat different way.  There, a person purported to create an equitable mortgage of his properties by depositing with the mortgage of his relating to certain lands belonging to him.  The question arose, whether the patta was such a document of title by the deposit of which in the city of Madras a mortgage could be validly created under section 59 of the Transfer of Property Act.  Their Lordships the Chief Justice and Justice Srinivasa Iyengar held, though a patta is not a title deed in all senses of the expression and for all purposes, yet for the creation of an equitable mortgage it was a sufficient document of title, because, all that was requisite for such a purpose was the deposit of some deed evidencing one’s title coupled with an intention to create a charge on the properties referred to in the deed  (ILR 48 Mad.454 (The Official Assignee of Madras v. Basu Deva Narayan Badri Narayan Doss).  The soundness of this decision may be open to doubt, but even assuming that it is correct, there is nothing in it to show that they meant to part from the ruling in the earlier cases.  So then, we may take it, that as the authorities stand at present, a patta is not a title deed, but can at best be only an evidence of possession or enjoyment.  But this evidence by itself is not entitled to much weight even as regards possession, because, as we shall presently see, it is quite possible now that the patta stands in the name of one person, while ownership is in another and the possession and enjoyment is in a third.  However, the Government having already taken steps to remove these anomalies as far as possible it is hoped, that the object will be achieved in the years to come, when probably the importance of patta as evidence of possession may considerably increase.

In a secondary sense, the term patta is also used to signify not the piece of paper issued, but the estate or the lands referred to or comprised in the paper.  Thus for instance it is said, the extent of patta number 44 is 20 acres and 30 cents, or the assessment due form that patta is Rs.100.

The counterpart of patta in the Collector’s register is called chitta.

It is highly desirable that the owner of a property is also the registered pattadar in regard to that property; and it has been the policy of the Government from very early times to see that this object is accomplished, as far as possible.  The anamoly of the ownership being in one person and the patta standing in another’s name is mainly due to the fact, that when the property is transferred to or devolves upon another, the party or parties interested, do not take care to have the patta also transferred to the name of the transferee or the successor as the case may be.  The result of such anamoly is sometimes serious.  Supposing the real owner does not pay the kist, the amount will be realized from the pattadar, if necessary, by the sale of his holdings, and he will not be heard to say, that he is not the real owner of the property.  Similarly, if the pattadar makes default in respect of the kist payable by him in regard to lands other than the one transferred to another included in his patta, the land which has been transferred to the other still continues to be liable for sale for such default, in spite of the transfer.  For, as we have already seen in dealing with the separate Registration Act in regard to Estates, the Government will look to the pattadar and to nobody else for the payment of their dues.

The cases of transfer or devolution necessitating a change in the patta may be one or the other of the following : (1) Private or voluntary transfers; (2) Compulsory or involuntary transfers; and (3) Succession or devolution on the death of another.

In the case of private or voluntary transfers, the consent of both parties is generally necessary for a corresponding transference of patta.  If one of the parties object, the Collector will ordinarily make an inquiry into the validity of the objection; and if the objection is unfounded, he will order the necessary transfer of patta; else, he will direct the parties to settle their rights by suit or otherwise in a civil court.  If, of course, both parties consent, there will be no difficulty and the patta will be transferred as a matter of course.  Now, in order to avoid disputes and objections of the kind above referred to, it is now ordered that the registering officers, whenever transfers of property come up for registration before them, should obtain the signatures of both the parties to the transfer in a form called the patta transfer form and send it on to the revenue authorities; where either of the parties absent, he may receive an application for the transfer signed by such party.  If, however, the parties refuse or are un willing to execute the application, the registering officer shall by himself prepare a notice of the transfer in the form prescribed and send it on to the revenue authorities.  Thus an automatic transfer of the patta is ought to be effected, by means of this process.  But, as will be evident, the above procedure will not be of any use in regard to private transfers which are not registered, that is to say transfers for small values, and transfers by unregistered wills.

Under the head of compulsory or involuntary transfers come transfers by decrees of courts and transfers by revenue sales; we may also add, the decrees which declare the disputed rights of parties.

In these cases, on the production of the decrees or the certificates of sale or certified copies thereof accompanied by an application signed by either party, the Collector or the revenue officer empowered in this behalf will order the transfer of patta, even though the other party thereto may not express his consent in the application, and even though he may raise an objection to the transfer.

As regards the devolution by heirship or survivorship, the village officials, especially the Kurnam is enjoined to report the matter to the Tahsildar or the Deputy Tahsildar and get the transmutation done at the earliest time.

Further details regarding these transfers may be found in the Board’s Standing Orders No. 31.

Sometimes we have what are known as joint pattas, that is to say, pattas issued in the name of more than one person.  The issue of joint pattas are generally discouraged, but, when on the ground of inconvenience or impossibility, property has to be kept undivided among the co-owners, then, joint pattas have necessarily to be issued.  For example, where a private tank is owned by a number of persons, it is not possible to divide it by metes and bounds; similarly where properties of a deceased Hindu are owned by several co widows, it may be very inconvenient to divide the same.  However, even in those cases, the pattas are sometimes issued in the name of one of the co owners, who probably happens to be the managing member.  So too in the case of a Joint Hindu family, though the property belongs to many, the patta stands usually in the name of the father, if there is one, or in the name of eldest member who is the manager.  In these matters, therefore, there is no hard and fast rule and only when parties are anxious that separation is done. Sometime back, there was a limit to the smallness of the holding for the purpose of separate registration.  That restriction is now taken away, and one is entitled to get his land separately registered in the Collector’s registers, however small the land may be.