Powers of Attorney -- Concept Alien to the Proceedings under Chapter IX of Crl.P.C.?

By B. Premnath, Advocate, High Court of Kerala

11/10/2010

Powers of Attorney -- A Concept Alien to the Proceedings

under Chapter IX of the Code of Criminal Procedure ?

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

The focus in this write-up is mainly on the proceedings under Chapter IX of the Code of Criminal Procedure before the Family Courts where there are cases in which parties; especially the respondents are appearing through their power of attorney holders. The preamble of the Family Courts Act, 1984 indicates that, the family courts are established “to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs.” Chapter IX was incorporated in the Code of Criminal Procedure for a speedy, effective and cheaper remedy for the applicants therein. Is not the presence of power of attorney holders defeating the very purpose of the enactment of the Family Courts Act and Chapter IX? Whether parties to proceedings under Chapter IX can represent themselves through their power of attorney holders ? Family Courts, while dealing with the proceedings under Chapter IX of the Code of Criminal Procedure, exercise the jurisdiction of the Magistrates, which is that of a criminal Court as per Section 6 of the Code of Criminal Procedure, in accordance with the provisions of that Code, as held in Satyabhama v. Ramachandran (1997(2) KLT 503 (F.B.)). But that will be subject to the provisions of the Family Courts Act and the Rules, as per Section 10(2) of the Family Courts Act. Let us begin with the concept of Powers of Attorney and then answer the questions posed above, taking stock of the nature of proceedings under Chapter IX on the way.

2. A person who authorizes another to act in his place is said to grant the other a ‘power of attorney.’ Qui per alium facit per seipsum facere videtur. Section 2 of The Power of Attorney Act, 1882 is a copycat of Section 46 of the English Act, “The Conveyancing and Law of Property Act, 1881”, though the word “assurance’” occurring in the 1882 Act was omitted by Section 3 of the Act 55 of 1982. Section 2 merely declares the effect of the power granted to an ‘attorney.’ It does not empower the power holder to represent the Principal before the Court. As held by the Apex Court in Ravulu Subba Rao v. Commissioner of Income Tax, Madras (AIR 1956 SC 604), “It does not confer on a person a right to act through agents. It presupposes that the agent has the authority to act on behalf of the principal, and protects acts done by him in exercise of that authority but in his own name.”

3. Order 3 Rule 1 of the Code of Civil Procedure permits parties to the proceedings to which that Code apply, to act by themselves, through their recognized agents or through a pleader except otherwise expressly provided by any law. Such appearance can be made by the party in person if the Court so directs. Rule 2 of Order 3 describes “recognized agents” as persons holding powers of attorney and agents of the persons carrying on trade or business. Rule 22 of the Civil Rules of Practice, Kerala deals with the procedure when a party appears by an agent other than a pleader. Rule 22(2) mandates that the said agent can appear only after the Judge grants him permission to do so.

4. By the decision of the Apex Court in Janki Vashdeo v. Indusind Bank (2005 (2)KLT 265 (SC)), it is now settled that the “acts” employed in the provisions of Order 3 Rules 1 and 2 of the Code of Civil Procedure is confined only to the “acts” done by the power holder in exercise of the power granted by the instrument and it would not include deposing in place and instead of the Principal and that the power of attorney holder can only depose about the “acts” rendered by him in pursuance of that authority, and that he cannot depose for the principal for the acts done by him. Our High Court followed suit, in Rekharani v. Prabhu (2007(3) KLT 917).

5. With the advent of the Advocate’s Act, 1961 it has become the exclusive domain of the “Advocate” to practice the law, subject to Sections 29, 30, 32, 33 and 34 of that Act. It may be noted that “Pleader,” defined under Section 2(15) of the Code of Civil Procedure doesn’t cover a power of attorney holder. Therefore, in a civil case, though a power of attorney holder can appear on behalf of the parties and engage a pleader for them, he cannot act as a “pleader” for the party and doesn’t have a right of audience in the Court. In M.Krishnammal v. T.Balasubramania Pillai (AIR 1937 Mad.937(F.B.)) it was held: “There is no warrant whatever for putting a power of attorney given to a recognized agent to conduct proceedings in Court in the same category as a Vakalat given to a legal practitioner, though the latter may be described as a power of attorney.” This decision was later quoted with approval by the Apex Court in T.C.Mathai v. The District and Sessions Judge, Trivandrum (1999 (2) KLT 156 (SC)). The above view gets support from Jaymal Thakore v. Gujarat State Charity Commissioner (AIR 2001 Guj.279 (D.B.)) also.

6. Appearance of complainants through a power of attorney holder is not contemplated by the Code of Criminal Procedure (hereinafter referred to as the “Code,” for brevity) with regard to the offences regulated by the Code as criminal law can be set in motion by any body. Few instances where only an aggrieved person can file a complaint are when the offences alleged are under Sections 494, 498-A and 499 of the Indian Penal Code as mandated under Sections 198, 198-A and 199 of the Code, with the exceptions provided therein. But there also representation by a power of attorney holder is not contemplated. Section 195 of the Code categorizes offences in which the Court has to be the complainant.

7. A Power of Attorney holder can represent a complainant in a proceeding involving the offence under Section 138 of the Negotiable Instruments Act, 1988. It is because of the law of agency under Section 27 which is embedded in Chapter III of that Act, which is equally applicable to both Civil and Criminal Proceedings, as held in Pandalai v. Jacob C.Alexander (2000(2) KLT 59). Ashalatha v. State of Kerala (2007(3) KLT 984) held that as the law does not insist that the payee or holder-in-due-course should personally file the complaint, his duly authorized power-of-attorney can file the complaint on his behalf.

8. Whether an accused can be allowed to represent himself through a power of attorney holder? Provisions of the Code compel the accused to appear in person unless exempted by the Court. In no case the accused can appear through his power of attorney holder, as held in T.C.Mathai v. The District and Sessions Judge, Trivandrum (1999 (2) KLT 156 (SC)). When exempted under Section 205, the accused has to represent himself through a pleader; obviously a pleader as defined under Section 2(q) of the Code, with the permission of the Court. The benefit of representation through a pleader is extended to the exempted accused during the evidence taken in the course of the trial, by virtue of Section 273 of the Code. Section 303 of the Code recognizes the right of the accused to be defended by a pleader of his choice, which finds its alma mater in Article 22 of the Constitution of India, which is a fundamental right.

9. Chapter IX was incorporated in the Code with the intent of preventing vagrancy. Chapter IX is a complete Code in itself, evolving a one of its kind procedure of its own. It is now settled by Moideenkutty v. State of Kerala (2008 (3) KLT 8) that the sentence under Section 125(3) is not stricto senso a punishment. The ‘complaint’ filed to initiate the proceedings under Section 125 is not a ‘complaint’ as defined under Section 2(d) of the Code, as it is not an allegation of commission of an 'offence.' S.190(1)(a), (b) and (c) apply only when Court is taking 'cognizance' of an 'offence'. Therefore, only the aggrieved party can invoke the right u/S.125 of the Code. She/He cannot engage another person/power of attorney holder even otherwise, as the Code does not provide so.

10. Naushad v. Naseema Beevi (1994 (1) KLT 184) held that there is no legal bar in permitting a duly constituted power of attorney holder of a party to the proceedings under Chapter IX of the Code to engage a pleader for conducting cases. This was on the premise that the proceedings under Chapter IX are “civil proceedings,” and the power of attorney can represent a party in the proceedings under Chapter IX of the Code. In SAL Narayan Row & Another v. J.Ishwar Lal Bhagwan Das & Anr. (AIR 1965 SC 1818), the Apex Court distinguished “Criminal proceedings” from “Civil proceedings.” It was stated: “A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interests of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed…” Satyabhama v. Ramachandran (1997(2) KLT 503 (F.B.) relying on that Judgement and without following Balan Nair v. Valsamma (1986 KLT 1378 (F.B.)), held that the proceedings under Chapter IX of the Code are “criminal proceedings.” Peter v. Sara (2006(4) KLT 219 (F.B.)) followed suit.

11. Code insists the respondent to appear in person in the proceedings under Chapter IX of the Code. Section 126(2) mandates that all evidence in the proceedings have to be taken in the presence of the respondent and if his personal presence was dispensed with, in the presence of his pleader. Proviso to Section 126(2) calls for passing an ex parte order against a respondent who “willfully neglects” to attend the Court. Apart from making appearance through his “pleader,” he cannot avoid his personal presence before the Court. Situation may arise in a case where a respondent is unable to appear in person because of his avocation. There the answer would be: Compulsion for the complainant to approach the Court under Section 125 arose only because of the willful neglect of the respondent to provide maintenance. Then the respondent cannot be heard to say that he is unable to appear because of his job or some other reason. The respondent cannot be allowed to take advantage of his own negligence.

12. Now, when the proceedings under Chapter IX are transplanted to the Family Courts, it assumes a different colour. By the application of Section 8 of the Family Courts Act the jurisdiction of the Magistrate under Chapter IX of the Code is taken away in an area where a Family Court is established. As per Section 10 of the Family Courts Act, a statutory stricture is imposed on the parties against appearing through their agents. Section 10 states that in all the proceedings before it except those under Chapter IX of the Code, the provisions of the Code of Civil Procedure apply. O.III Rr.1 and 2 of the Code of Civil Procedure which regulates representation by power of attorney holders are applicable only to "Civil Proceedings". Hence by the exclusion of Chapter IX by Section 10 and as the proceedings under Chapter IX of the Code are "criminal proceedings", parties before the Family Court in proceedings under Chapter IX cannot represent themselves through their power of attorney holders. For these reasons the decision reported in 1994 (1) KLT 184 (Naushad v. Naseema Beevi ) is not good law.

13. Section 10(2) of the Family Courts Act makes the provisions under the Code applicable to the Family Court in the proceedings under Chapter IX of the Code before it, subject to the other provisions of the said Act and the Rules. The power of the Family Court in endeavouring for a settlement of the disputes as prescribed under Section 9 is not circumscribed by the Code or the sub-sections (1) and (2) of Section 10 of the Family Courts Act, as stated in Section 10(3). Rule 25 of the Family Courts (Kerala) Rules, 1989 grants the power to the Family Court to take action against the failure of a party to attend the counseling under Section 9 of the Family Courts Act.

14. The very purpose of Conciliation contemplated under the Family Courts Act is to bring the hostile members of a family together, to see each other eye to eye, speak out in a congenial atmosphere and unite their lives riven asunder. Power of Attorney holders can never be the substitutes for them. Further, all the proceedings in the Family Court are purely personal in nature. Power of attorney holders will not be able to know actually what transpired between the family members, the tenor of their feelings and the case evolved from it. The court will not have the advantage of seeing the parties in person and their demeanors, which will only help the Court to reach a settlement. Situations may arise where a respondent in a given case engages a power of attorney holder, may not appear at all before the Court even during the proceedings for conciliation in the first instance, till the end of the case. This will delay in resolving the dispute and will certainly defeat the very purpose for which the Family Courts were established.

15. Before parting with the topic, let me deal with an incidental question. Whether an agent can be a "pleader" for a party in a criminal proceeding? Definition of “pleader” under Section 2(q) of the Code encompasses a power of attorney holder as held by the Apex Court in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (2004 (3) KLT 850 (SC)), and any other person, appointed with the permission of the Court. Section 302 of the Code permits “any person,” which includes a “pleader,” as defined under Section 2(q), to conduct the prosecution with the permission of the Court except the Officers mentioned therein. Rule 30 of the Criminal Rules of Practice stipulates that “No person who is not a qualified legal practitioner shall be permitted to act as a pleader in any proceeding except to prevent a possible miscarriage of justice.” It is further stated that it will not operate as a general licence for all cases. Sub-rule 2 further requires such person who was permitted so, to file a power of attorney from his client containing such authorization. In T.C.Mathai v. The District and Sessions Judge, Trivandrum (1999 (2) KLT 156 (SC)), the Apex Court held that an agent cannot become a “pleader” for the party in criminal proceedings unless the party himself (emphasis supplied) secures permission from the court to appoint him to act in such proceedings. Hence even if there is a power of attorney, that will not clothe a private person with the authority to conduct the prosecution.

16. The Apex Court sounded a note of caution on appointing a private person as a “pleader,” in Harisankar Rastogi v. Giridhari Sharma &Anr. (AIR 1978 SC 1019), through that great Judge V.R.Krishna Iyer who, in his inimitable style spoke thus: “If the man who seeks to represent has poor antecedents or irresponsible behaviour or dubious character, the court may receive counter productive service from him. Justice may fail if a knave were to represent a party. Judges may suffer if quarrelsome, ill informed, or blackguardly or blockheadly private representatives filing arguments at the Court. Likewise the party himself may suffer if his private representative deceives him to destroy his case mendacious or meaningless submissions and with no responsibility or respect for the Court. Other situations, setting and disqualifications may be conceived of where grant of permission for a private person to represent another may be obstructive, even destructive of justice.”

Proved, Not Proved, Disproved And the Dilemma of the Forgotten Prudent Man

By John S. Ralph, Advocate, Kochi

11/10/2010

Proved, Not Proved, Disproved And the Dilemma

of the Forgotten Prudent Man

(By John S. Ralph, Advocate, High Court of Kerala)

Two grand authorities on the subject of proof in Evidence Act have rendered two sets of thoughts ; one in Jose v. State of Kerala ( 2010 (2) KLT 163) by his Lordship Justice R.Basant and the other in reply to that by his Lordship Justice U.L Bhat published in 2010 (3) KLT Journal 1. The clash of the titans gave immense academic pleasure for its readers. This is to explain a different approach on the subject. And not to contradict or differ with those jurists.

For a quick reading let me reproduce Section 3 of the Evidence Act.

Proved : A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists.

(The other 2 limbs ‘not proved’ and ‘disproved’ are omitted since not required for the present discussion).

Thus Section 3 has two limbs. (1) The court believes it to exist (2) probability of the acts of a prudent man under a particular circumstance.

The crux of the judgment in Jose v. State of Kerala was that the second limb of the section is meant for the jury and the first limb is for the trained judicial mind. Hence the two limbs are mutually exclusive. The reply article tries to establish the contrary and argues that both the limbs are to mutually exist.

My humble endeavor is to advance a different theory for the inclusion of the second limb of Section 3 since both the aforesaid theories explained by the echelons of law will at times conflict each other and hence they both could not fit in all the circumstances. Let us consider some of them.

Belief of the trained judicial mind conflicts with the evidence: There may arise situations in which the belief of the trained judicial mind conflicts with the proved facts. Take for example a case of defamation on a popular public figure as the victim. The prosecution/ plaintiff as the case may be has to prove that the person defamed has got certain fame/reputation. But the Judge knows from his personal experience (since the defamed man is a popular figure) that the person defamed is a dishonest man. Evidence is adduced through witnesses. What they speak about the fame is what they think about that particular man. The cross examination was unsuccessful. Now there is a set of evidence tendered through witnesses, unbroken in cross examination. But the Judge does not BELIEVE it to be true since he knew that the defamed man is dishonest and has no fame or reputation. Here the belief of the Judge is in direct conflict with the evidence before him. Now the judge cannot render his judgment against the set of evidence before him, by saying that he did not believe them to be true. Then the question arises “can the Judge consider the matter as proved even though he does not believe it to be proved?” If he does so he will be rendering a judgment against his conscience. Then comes the essentially consequential query. Can a Judge render a judgment against his conscience ? The answer will be a difficult one. There may be thousand of like situations wherein the judicial mind conflicts with the evidence adduced. Hence the argument that both the limbs are mutually exclusive is doubtful.

Are the limbs mutually co-existing ? If both the limbs are co-existing, the need for the second limb vanishes. Why because (1) the trained judicial mind can certainly gather what the untrained lay prudent man of the jury thinks on that certain set of facts. (2) If the trained judicial mind can not accept a thing as proved, it should not, need not and cannot go down to a lower level of intellect as of the lay prudent man jury for ascertaining what a lesser intellect thinks fit (3) if both the limbs are co-existing, the Judge goes to the second limb since he does not believe himself that the fact is proved. But later on he cannot accept a different belief from the jury since it will be in direct conflict with his own belief.

These apart the law at the time of jury trial was that, when there is a conflict between the jury and the Judge regarding a question of fact, the decision of the jury should prevail. (See Ramanugrah Sing v. Emperor 1946 PC 151).

And it is also not correct to assume that the jury was consisting of lay prudent men, at least in 1872 when the Evidence Act came into force. There may be cases of imprudent jury men like that of Nanavati’s case (AIR 1961 SC 112) which resulted in abolishment of jury system in India. But at the inception of the jury system, persons of high positions in the society were forming the jury. The Evidence Act came in 1872 and it was codifying the practice and precedents of centuries of legal wisdom. The earliest jury men were appointed by the crown to assess the tax of the land possessed by the citizens. And those were persons of highest integrity and reputation in the society. And nowhere in the British legal history we get information for the proposition that the jury consisted of lay prudent men. Bear in mind that we are in 1872, the year in which Section 3 came into the statute book.

Now let us view the second limb of Section 3 in a totally novel way, tearing it from the first limb. Both the masterminded authors mentioned above have not considered the question “who is a prudent man ? " Prudent man is not a lay man or a jury man or a reasonable man.

Who is a prudent man ? The Prudent man rule came in the year 1830 in a Massachusetts court decision in Harvard College v. Armory 9 Pick (26 Mass) 446, 461 (1830). The rule directs trustees “to observe how men of prudence, discretion and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested”. And the said rule, obviously came into existence after decades of legal battles on the subject in many suits. This has been made a specific law in many countries including America under The Employee Retirement Income Security Act, 1974.

An Example on how the rule applies : The plaintiff entrusted money with the defendant who is an investment expert. He invested the same in land in Kochi at a time when X party was in power and the land value was increasing. Due to certain political turmoil, the Government was forced to resign and in the ensued election, the Y party came into power. Due to their policies, the land value decreased. The plaintiff sues the defendant for the loss he sustained in the investment. The defendant takes up the plea of PRUDENT MAN RULE and content that he had done only what the prudent men had done in that particular circumstances.

Here, the loss suffered by the plaintiff was due to the attitude of the millions of voters/electorate that changed the Government. Ultimately what affected the investment was the mental attitude of each and every voter, a fact which could not have been foreseen before the election result comes. Hence the plaintiff cannot prove or ascertain that the loss of the Government and the consequences were certain and that the defendant should not have invested in land. The defendant also could not prove that the change of the Government was unlikely since the society was improving which is indicated by the increase in the land value and it was thus he invested in land.

Hence there will not be any positive cogent evidence on matters before the court for it to enter into a belief which of the plea of the parties is correct.

In such situations, the court should go to the second limb and ascertain what the Prudent Men had done in that given period. (Whether the investment was speculative or not, or whether the investment was advised by the financial experts and magazines etc.) Thus resolves the rival contentions. It is for that purpose the second limb exists.

Deconstructing the Section (Deconstruction is a method in western philosophy that rigorously pursues the meaning of a text to the point of exposing the contradictions and internal oppositions upon which it is apparently founded and showing that those foundations are irreducibly complex, unstable, or impossible. It was founded by the French philosopher Jacques Derrida (1930-2004) and effectively used by critics like Roland Barthes (1915-80).

The present argument can also be explained by deconstructing the second limb into parts as follows :

.....existence so (1) PROBABLE (court is considering only the probability and not a certainty) that a

(2) PRUDENT MAN (the prudent man in the prudent man rule) ought

(3) UNDER THE CIRCUMSTANCES OF THE PARTICULAR CASE, (the word “case” according to Oxford means ‘an instance of a particular situation, the situation affecting or relating to a particular person or thing etc’)

(4) TO ACT UPON (here the court is considering the ACT of the PRUDENT MAN and not his belief)

(5) THE SUPPOSITION THAT IT EXISTS. (that certain situation was existing)

Now let us add these five segments and we get the following conclusion that is to be arrived by the court after considering matters before it.

That the prudent man was, under those circumstances, acting upon the supposition that those situations were existing.

This proposition gets support from the set of words TO ACT UPON. Let us again deconstruct these set of words.

Who is acting ? and To act upon what?

The prudent man in the prudent man rule was ACTING and he was acting under a certain situation. And his ACT was so probable.

Had this been not the intention of the second limb, it would have been constructed as follows : “OR CONSIDERS ITS EXISTENCE SO PROBABLE THAT A PRUDENT MAN WILL BELIEVE IT TO EXISTS ". So it is not the belief of the lay prudent man jury but the PROBABILITY OF THE ACT OF A PRUDENT MAN UNDER A CERTAIN SITUATION is being considered/evaluated by the court to arrive at a conclusion whether the claim of the party that what he had done was only a thing that the prudent men had done at that given situation.

The theory that the second limb applies to the standard of proof in civil cases is also doubtful. Especially when after considering the matters before it, the court has to arrive at his own BELIEF as stated in the first limb. And nowhere it is stated with what strictness the criminal cases are to be proved. “Reasonable doubt” and “Preponderance of probability” are the brain children of Trained Judicial Wisdom.

The hypothesis that the standard of proof in criminal and civil law are different and in the former, the facts are to be proved beyond reasonable doubt and in the later it need only to be proved through preponderance of probability has a historical reason. In criminal law, the defendant/accused is under the protection of a golden presumption that he is innocent until the guilt is proved. This is evolved from the basic concept of righteousness of the individual in a given society that assumes that every citizen is good. So in a criminal case, the prosecution has to rebut that presumption by strict proof. In civil cases such a presumption is absent and the court can consider which argument is more probable.

So in my humble opinion, the second limb of S.3 of the Evidence Act is incorporated for a different purpose based on the Prudent Man Rule, 1836.

Legitimate Expectation : Bhatt Murphy Style

By P. Chandrasekhar, Advocate, Ernakulam

04/10/2010

Legitimate Expectation : Bhatt Murphy Style

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

Legitimate Expectation is comparatively a new entrant in the long list of various grounds for judicial review of administrative action. The ‘protection of legitimate expectations’ is a rule of fairness so much so that if a public body has led an individual to believe that he will have a particular procedural right, then he is said to have procedural legitimate expectations that can be protected. In recent years it has come to be accepted that if a public body has led an individual to believe that he will receive a substantive benefit, then he may have substantive legitimate expectations that would be protected.

England and Wales Court of Appeal (Civil Division) has in a recent decision cautioned that while Legitimate Expectation is now a well known public law headline and ‘much of the ground is at the foot hill’ the path falters a little farther up’ (The Queen on the application Bhatt Murphy (a firm) & Ors. v. Secretary of State (2008) ECWA Civ 755)). In Bhatt Murphy Law L. J. held that ‘the court is generally the first, not the last, Judge of what is unfair or abusive; its role is not confined to a back-stop review of primary decision-maker’s stance or perception. Unfairness and abuse of power march together. Ascertainment of what is or is not fair depends on the circumstances of the case.

In Bhatt Murphy, Law L.J. has categorised Legitimate Expectation into three broad areas. (1) Paradigm case of Legitimate Expectation, (2) Secondary case of Legitimate Expectation and (3) Substantive Legitimate Expectation.

Paradigm case of Legitimate Expectation arises when a public authority has provided an unequivocal assurance, whether by means of an express promise or an established practice that it will give notice or embark upon consultation before it changes an existing substantive policy. Good administration is at the heart of the concept. Public bodies should be straight and consistent in its dealings with the public. Good administration requires that where a public authority has given a plain assurance it should be held to it (Ex p Nadrajah (2005) EWCA Civ 1363). Paradigm case of Legitimate Expectation is protected by Courts unless the want of notice or consultation is justified by an over riding public interest such as the imperative of national security (CCSU v. Minister for the Civil Service (1985) AC 374).

In Secondary Case of Procedural Legitimate Expectation the decision maker would be required to afford the potentially affected persons opportunity to comment on the proposed change of policy and the reasons for it. These are cases where there is no unequivocal assurance, whether by means of an express promise or an established practice that it will give notice or embark upon consultation before it changes an existing substantive policy as in the case of paradigm Legitimate Expectation. Ex p Uniliver (1994) 1 WLR 354) is a classic example. Ex. p Uniliver concerned with Inland Revenue’s treatment of a tax payer’s claims for tax relief. A time limit had been stipulated for making such a claim. On thirty occasions over a period of more than 20 years the Inland Revenue had accepted belated claims. But the Inland Revenue refused tax payers claims for accounting years 1986, 1987 and 1988 with no prior notice, warning or consultation. Allowing the claim of the applicant Sir Thomas Bingham MR said that ‘ on the history here, I consider that to reject Uniliver’s claims in reliance on the time limit, without clear and general advance notice is so unfair as to amount an abuse of power’. In an ordinary case, of course, there is no space for intervention on grounds of abuse of power once a rational decision directed to a proper purpose has been reached by lawful process. But Ex p Uniliver stood on a different footing. That was a case the authority’s conduct was ‘so outrageously unfair that it should not be allowed to stand’. In other words the impact of the authority’s past conduct on potentially affected persons should be ‘pressing and focussed’.

Secondary case of procedural Legitimate Expectation is not therefore easily made out. It requires unfairness of an over whelming nature to warrant intervention of the Court.

In Ex p Baker ((1995) 1 All.E.R. 73) Simon Brown L.J. held that Substantial Legitimate Expectation is akin to Estoppel. In Ex p Coughlan ((2001) QB 213) Lord Woolf held that ‘where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power’. He also said that ‘once the legitimate expectation is established, the court has the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy’. Ex p Coughlan depicts a case where the applicant severely disabled in a road traffic accident was subsequently placed in the care of a local area health authority. She, along with seven other seriously disabled patients were removed by the Health Authority with their consent to a new facility at Mardon House with an assurance that they could live there “for as long as they chose”. The Health Authority subsequently decided to close Mardon House and transfer the applicant to a local authority home. The Court held that the applicant and the other patients having received a clear promise that Mardon House would be their home for life which had induced a legitimate expectation of a benefit which was substantive, frustrating that expectation was so unfair as to amount an abuse of power. The Court found that there was no sufficient public interest to justify a departure from what had been promised. On the facts, the Court of Appeal concluded that the decision to close Mardon House was not justified.

The affirmation of Substantive Legitimate Expectation as main stream principle of administrative law in Ex p Coughlan gave raise to a number of problems in its practical application on fact situations. Richard Clayton identified some of the problems: (1) Whether a claimant must subjectively appreciate the legitimate expectation; 2) Whether a claimant can rely on an unlawful legitimate expectation; (3) What role does detrimental reliance play in the doctrine of legitimate expectation and (4) What is the proper test for the court to use for deciding whether an expectation should over the public interest. (Richard Clayton: Substantive Legitimate Expectations; Some Unresolved Questions).

Richard Clayton says that English Courts have tended to take the view that legitimate expectation based on an assurance or a claimant must subjectively understand representation as has been held in Lloyd v. MacMahon ((1987 AC 625). This view has considerable force in relation to individual assurance cases, which have strong similarities to the principles which apply to Estoppel. However, if the expectation is a general policy or practice, the rationale for this subjective requirement is not self evident. Those who rely on published guidelines by public bodies are obviously entitled to expect them to be followed. The principle of good administration demand that public bodies adhere to the policies they promulgate. Equality of treatment requires that public bodies treat like cases equally irrespective of a particular claimant’s state of mind. There is no reason why it should be fair to treat people differently on the grounds of their knowledge of the policy. In Ex p Emery ((1996) 4 All.E.R.1) it was held that lack of knowledge of a promise contained in a policy did not deprive the uninformed of its benefit.

Though the conventional view has always been that a legitimate expectation cannot be founded on an ultra vires representation, situations are not lacking where claimants may suffer great hardship as a result of the unlawful representation. In A.G. of Hong Kong v. Ng Shiu ((1983) 2 AC 629) the Privy Council held that illegal immigrants had a legitimate expectation of being given opportunity to indicate that they are not liable to be deported because the Government had expressly promised each illegal immigrant that he would be interviewed and his case would be treated individually on their merits. However, in R. v. South Somerset DC ex p DJB Group ((1989) 1 Admn L R 11) a Divisional Court held that shop keepers trading illegally in breach of the Sunday trading laws had no legitimate expectation that they would not be prosecuted for doing so. Generally, jurists in England believe that it is draconian to regard an unlawful assurance as a total bar to a remedy when both parties have acted in good faith on a mistaken view of a public body concerning its powers; and where it is potentially unfair for the public body to resile from that assurance. The better view is that the court should consider what weight to attach to the unlawfulness of a representation when deciding if fairness overrides the public interest in a public body changing its mind.

In Ex p RAM Race Course ((1993) 2 All. E.R. 225) Stuart Smith L.J. held that a legitimate expectation required a clear and unambiguous representation on which the applicant was entitled to rely and that he did in fact do so to his detriment. However in Jaramillo-Silva v. Secretary of State for Home Department ((1994) Imm AR 352) Simon Brown L.J. held that reliance and detriment are not necessarily required in every legitimate expectation case. In Ex p. Begbie ((2000) 1 WLR 1115) Peter Gibson L.J. rejected the proposition that it is not necessary for a person to have changed his position as a result of representation for an obligation to fulfill a legitimate expectation to subsist. He said that it would be very much the exception, rather than the rule, that detrimental reliance would not be present; and indicated that it would relevant in two situations. First, it might provide evidence of the existence or extent of an expectation; and might be a consideration to be taken into account when deciding whether a person was in fact led to believe that an authority would be bound by the representation. Secondly, detrimental reliance may be relevant to the decision of an authority to revoke a representation. In R (Bibi) v. Newham LBC ((2002) 1 WLR 237) held that the significance of reliance and of consequential detriment is factual, not legal. In a strong case, no doubt, there will be both reliance and detriment; but it does not follow that reliance (that is, credence) without measurable detriment cannot render it unfair to thwart a legitimate expectation. To disregard the legitimate expectation because no concrete detriment can be shown would place the weakest in society at a particular disadvantage. In Ex p. Bibi Schliemann L.J. held that “that would mean that those who have a choice and the means to exercise it in reliance on some official promise or practice would gain a legal toehold in accessible to those who lacking in any means of escape, are compelled to place their trust in what has been represented to them”.

The test laid down in Coughlan to find out as to whether the authority could depart from legitimate expectation when there is overriding public interest was not cogent or precise. The test described was as to whether the need to move the applicant (as judged by the health authority) was such as to outweigh its promise that she could stay in Mardon House for life. The Court found that fairness prevailed over public interest because the authority missed the essential point of its promise; its undertaking to fund her care for the remainder of her life was substantially different in nature and effect from the promise that care would be provided at Mardon House for the rest of her life. Consequently, the authority had failed to weigh up the conflicting interests correctly. According to Richard Clayton proportionality principle provides a more precise, structured test of review than the approach taken in Coughlan. The view derives support from what Sedley J. said in Ex. P. Hamble ((1995) 1 A11.E.R.714). He said hat “legitimacy is a relative concept to be gauged proportionately to the legal and policy implications of the expectation” and that the means adopted should bear fair proportion to the end in view. This would mean that when substantial legitimate expectation is in issue to find out whether the legitimate expectation is over ridden by public interest the courts will have to find out (1) whether the objective for departure from legitimate expectation is sufficiently important to justify the end (2) whether the measure namely withdrawing the promised benefit is rationally connected to the end; and (3) whether the means used to do so is no more than necessary to accomplish the objective. In any case, proportionality principle is a valuable guidance where the fairness of overriding a legitimate expectation is an issue before the court. In Josie Rowland v. Environment Agency ((2003) EWCA. Civ 885) Court of Appeal expressed that ‘at the end of the day the court must decide whether having regard to all the relevant circumstances including the reliance by the citizen, the impact on the interests of the citizen and the public and considerations of proportionality for the public body to resile would in all the circumstances and applying the criteria referred to be so unfair as to constitute an abuse of power”.

An overall review of English decisions shows that English courts have declined to unite the public law doctrine of legitimate expectations with the private law doctrine of estoppel. In R (Reprotech (Pebsham) Ltd) v. East Sussex County Council ((2003) 1 WLR 348) Lord Hoffmann said that ‘the public law doctrine is sufficiently well established to be recognised as quite independent of estoppel and that ‘public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet’.

In India unlike in England public law doctrine of legitimate expectation and private law doctrine of estoppel stand united. However, in a classic decision Justice M .P. Menon narrating the origin, scope and content of the doctrine of Estoppel in private law recognized the judicial trend after Laker Airways Ltd v. Department of Trade ((1977) 2 All. E R 182) that ‘the latest judicial trend is not to speak of estoppel but, of fair dealings, of eliminating arbitrary action or of not blasting legitimate expectations in an illegitimate manner’ (Govindan v. Cochin Shipyard Ltd. (1983 KLT 1083)). Subsequent Indian decisions on the subject do not appear to have followed or developed the judicial trend referred to in Govindan’s case.

In Navjyoti Co-op. Group Housing Society v. Union of India (1992) 4 SCC 477) the Supreme Court held that the Societies were entitled to a ‘legitimate expectation” that the past consistent practice in the matter of allotment of land, will be followed even if there was no right in private law for such allotment. It was also held that the doctrine imposed, in essence, a duty to act fairly by taking into consideration all relevant factors, relating to such legitimate expectation. In Food Corporation of India v. Kamadhenu Cattle Feed ((1993) 1 SCC 7) the Court held ‘that every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant’. In Union of India v. Hindustan Development Corporation ((1993) 3 SCC 499) the Court held that legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Such expectation should be justifiably legitimate and protectable. In National Buildings Construction Corporation v. S. Raghunathan, ((1998) 7 SCC 66) the Supreme Court held that claims on legitimate expectation required reliance on representation and resultant detriment in the same way as claims based on promissory estoppel. In Punjab Communications Ltd v. Union of India ((1999) 4 SCC 727) the Court held that ‘legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way’. The court observed that in England ‘the protection for substantive legitimate expectation was based on Wednesbury unreasonableness’ and ‘that Wednesbury principle is now consistently followed in England’. In Chanchal Goyal (Dr.) v. State of Rajasthan ((2003) 3 SCC 485 the Supreme Court held that ‘clear statutory words override any expectation, however founded’. In Union of India v. International Trading Co. (2003 (2) KLT SN 76 (C.No.101) SC = (2003) 5 SCC 437) the Supreme Court held that the change in policy can defeat a substantive legitimate expectation if it can be justified on “Wednesbury reasonableness” and that legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made’. In Hira Tikkoo v. U. T of Chandigarh ((2004) 6 SCC 765) the Court held that the argument under the label of ‘estoppel’ and legitimate expectation’ are substantially the same. In State of Karntaka v. Uma Devi (2006 (2) KLT SN 55 (C.No.70) SC = (2006) 4 SCC 1) Supreme Court held that the doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn’. In Kuldeep Singh v. Government of N.C.T. Delhi (2006 (3) KLT SN 66 (C.No.92) SC = (2006) 5 SCC 702) the Court held that ‘where a change in the policy decision is valid in law, any action taken pursuant thereto or in furtherance thereof, cannot be invalidated’. In Ram Parvesh Singh v. State of Bihar ((2006) 8 SCC 381) Supreme Court held that legitimate expectation is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established’ and that ‘as a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above ‘fairness in action’ but far below ‘promissory estoppel’. In Ashoka Smokeless Coal India Pvt. Ltd. v. Union of India ((2007) 2 SCC 640) Supreme Court held that legitimate expectation has been developed in the context of principles of natural justice’. In Sethi Auto Service Station v. DDA ((2009) 1 SCC 180) Supreme Court held that the protection of legitimate expectations is at the root of the constitutional principle of the rule of law, which requires regularity, predictability, and certainty in Government’s dealings with the public.

Apart from the three categories of Legitimate Expectation which Law L.J. has made mention of in Bhat Murphy, Legitimate Expectation has also been broadly categorized as those involving (1) individual assurance (2) decision taken by authority deviating from an existing policy and (3) decision involving change of policy. Legitimate Expectation warrants different approach in individual cases having regard to the difference in fact situation, to find out the intensity of unfairness leading to abuse of power. Caging of Legitimate Expectation to provide for a rigid formulation for all fact situations in the future may be impossible. As pointed out by Thomas Bingham MR ‘the categories of unfairness are not closed and precedent should act as a guide and not as a cage’. After Coughlan English courts considers Wednesbury unreasonableness as one of the many instances of cases how public power may be misused. Supreme Court of India has in a number of recent decisions has expressed its categorical view that at least in some jurisdiction Wednesbury unreasonableness is given way to proportionality (Jitendra Kumar v. State of Haryana (2008) 2 SCC 161).

An overall cumulative reading of the Supreme Court decisions on Legitimate Expectation over the last two decades would indicate that the conceptualization of the principle by the Supreme Court appears to be irredeemably vague and confusing. It would also appear that the Supreme Court while conceptualizing the principle has lost sight of its very kernel. Though the origin of the concept is even now not very clear, it is now well settled that expectation however legitimate or reasonable by itself does not give any right to challenge decision of an administratative authority. What it contemplates is only that in an appropriate case Court in order to prevent unfairness in administrative action leading to abuse of power and to ensure good governance which in India is part of Article 14 of the Constitution of India, can restrain the authority from resiling from its assurance, representation or past practice. As point out by Law L.J., fairness is at the heart of the concept. What is fair or unfair on fact situation is not dependent on the perception of the decision maker, but for the Court to decide as a primary decision maker. That appears to be the only clear guideline presently available for application of the principle of Legitimate Expectation.

Some Thoughts - 2010 (3) KLT SN 19 (C.No.26) And 2010 (3) KLT 246

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

04/10/2010

2010 (3) KLT SN 19 (C.No.26) And 2010 (3) KLT 246 –

Some Thoughts

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

It was nice to read 2010 (3) KLT SN 19 (C.No.26). It was nice to read 2010 (3) KLT 246 also. I read them together, again and again. My sense of pride, at being a humble being on this side of the Hon’ble High Court, got a boost.

The short note case deals with a situation where an officer of the State wanted sanction of his superior/s to comply with a judgement, in favour of a freedom fighter who certainlycontributed his humble might, to make this day possible. Perhaps, the erring officer and his type are probably unaware of freedom struggle from their school text books, but are more prey to the Baboo syndrome inherent in Indian administration and typical sarcasm borne out of indifference to duty. To me, like many others, indifference generates indignation and insecurity. That “it is the duty of the officer concerned to comply with the directions even if the officer or his superior officers are of the view that the law applied or reasons stated by the court are not correct" is a most welcome reminder.

The concept that judicial orders reign supreme is a thought that has come to stay in my old fashioned mind since the day I first heard of authority, as a toddler. A thought that was anchored deeper during my days in Law College - a thought nurtured and nourished during these years at the Bar. A thought I cherish to carry till Kingdom Come! I adore and admire Dhulabhai even now, despite misgivings at onslaughts thereon, eventually denuding my favourite arena of jurisdiction by modern legislative process and legal exercises, alas, in the name of expediency but, I feel, at the cost of efficiency and efficacy - more misgivings now, at the thoughtless onslaughts on the system from various quarters, from within and without.

In the second decision, that authoritative and convincing adjudication -reiterating the direction in an earlier judgement to refund court fee - was necessitated only because “the registry expressed a doubt as to whether refund of full court fee that was paid was permissible———————”.

Of course, the registry - the driving force in the Hon’ble High Court - did not (?) and cannot, adopt a contentious role in the matter of a judicial order. I am sure the registry was aware of legal provisions and precedents on the point and also of the legal position that “it is the duty of the officer concerned to comply with the directions—”.

I asked myself, what was the business of the registry to doubt a judicial order? Had not something, law or fact, registered with the registry? I tried to convince myself that the registry really may have a say in the matter, but I wanted to be sure.

Naturally, I had to refer to Court Fees Act and Rules of High Court. Section 11 Court fees Act provides: Where, in a suit instituted in the High Court, in which a fee is payable under this Act any difference arises between the officer whose duty it is to see that proper fee is paid and any party as to the necessity of paying a fee or the amount thereof, the question shall be referred to the Taxing Officer who shall decide the same:

Provided that, if in the opinion of the Taxing Officer, the question is one of general importance, he may refer it to the Chief Justice of the High Court or such Judge or Judges of the High Court as the Chief Justice shall appoint, either generally or specially in this behalf.

Section 16 says: The provisions of Sections 10 to 14 shall apply mutatis mutandis to the determination and levy of fee in respect of petitions, applications and other proceedings in Courts in the same way as they apply to the determination and levy of fee on plaints in suits.

The Rules did not reveal, to my notice, any provision empowering the registry to raise post decisional doubts. Presumably, it cannot, as the Court Fees Act does not permit that. On the contrary, second proviso to Section 11 provides further that, when the case comes up for disposal before the Court, the decision of the Taxing Officer may be reviewed by the Court.

Now, I ask, what is the business of the registry to doubt a judicial order? Guess something did not register with the registry!

Well, to take a cue from the Bard:

Not that I do not love the registry,

Notice and Interim Stay for Two Days

By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam

04/10/2010

Notice and Interim Stay for Two Days

(T.P.Kelu Nambiar, Sr.Advocate, High Court of Kerala)

Legal profession’s fears, myths and facts are interesting interludes. I have a lot of experience; and I have written and spoken about them many-a-time. It was while I was thinking of stopping my writing curve, I remembered that I had forgotten to write about an important aspect. I should write it here and now. It is a subject known to every lawyer; and no brain pacemaker is required to understand it. For better understanding, let me put it in the form of court-proceedings.

The Court Officer called: “Item No.203: W.P. (C) No......” Counsel for the petitioner stood up, not daring to think beyond the Judge. The Judge bestowed upon the lawyer a nod of sovereign to serf. Counsel argued for admission for a few minutes, more in hope than expectancy. The Judge, a mere two-year old, after listening with only half-an-ear, forgetting that advocacy is no Gypsy song, observed: “I shall issue notice”. Counsel hurried to submit: “I have prayed for stay”, as if he was facing a stress interview. The Judge, with ill-concealed anger, said: “I am not inclined”. Counsel started pressing for an order of stay, like a crying babe though. Then the Judge, with dignified authority, dictated: “Notice by Special Messenger. Interim stay for two days. Post on....” Counsel disappeared, spreading a smile. The Court Officer called the next case for admission. In that case, there was practically a repetition of the earlier scene and the Judge finally ordered notice and interim stay for one week.

In the third case, interim stay was for a period of two weeks. The pattern continued.

But in no case the period of interim stay exceeded one month.

If one imagines continuance of this exercise for the subsequent days also, it may not be a surprise to see that every day the cause list would contain hundreds of matters for extension of stay. Imagine the time consumed for this process.

Let me rewind to the good old days, rich in history, where, if the Judge was minded to order stay, interim stay was granted until further orders; practical as Pius. When notice goes to the respondent, if the respondent is aggrieved or inconvenienced by the order of stay, he would bring up the matter for further orders. If this system is adopted, a lot of judicial time can be saved. When interim stay as such is ordered, the opposite party may or may not bring up the matter for further orders. In that event, the cause list would never be crowded.

A better procedure is to stipulate that when interim stay is ordered, the opposite party, if aggrieved, should bring up the matter for further hearing along with a counter-affidavit opposing the stay. This could be a crowd control measure.

Judicial time is said to be precious. It need not be wasted for mere extension of stay.

Looking at one of the docket sheets in my office, I find that there were more than fifteen postings in regard to the stay matter alone. Every time the stay was being extended, for one reason or other, for a short period. At no point of time was the stay extended until further orders, or was vacated.

If I may venture a view, the court can take into confidence experienced Advocates in matters concerning settlement of cause lists. According to the practice prevailing now, in matters of posting, decisions are taken by the Honourable Judges and the Registry, without any reference to the Advocates Association, possibly thinking that the area is ‘apartheid’ for lawyers. The views of the Advocates are entitled to great weight, because they have experience in observing the proceedings and presiding Judges in all the courts. Bar realities count much. Innovate to win. There should never be a trust gap between the Bench and the Bar.

Judges should remember that there is no award for good judgment, for there should never be a bad judgment.

Law, is the name of the game played in court, where there are no preferred bidders. I am fuelled by memories of the past. I am dW1 to the history of this High Court. Oliver Twist sought food security. I seek justice security. After all, justice delivery system is not nuclear commerce. At the same time, it is not a fun game.