Kerala High Court on Co-operative Law -- 2009 Decisions Compiled

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

15/02/2010

Kerala High Court on Co-operative Law -- 2009 Decisions Compiled

(By R.Muralidharan, Deputy Registrar (Planning & Legal),

Co-op.Department, Pondicherry - 605009)

Stare Decisis

The expression stare decisis, as defined by the Supreme Court, means ‘to stand by decided cases; to uphold precedents; to maintain former adjudication’. This is expressed in the maxim stare decisis et non quieta movere, which means to stand by decisions and not to disturb what is settled. Lord Coke aptly described this in his classic English version as ‘those things which have been so often adjudged ought to rest in peace’. However, according to Justice Frankfurter, the doctrine of stare decisis is not ‘an imprisonment of reason’. The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed because another view is possible ((2009) 3 SCC J 32).

Case law section is an approved branch of legal learning. The rulings of the Kerala High Court always rule the roost and its decisions in the field of Co-operative Law are no exception. This article encompasses various decisions of the Kerala High Court involving co-operatives, arranged chapter-wise. I am sure that the readers would stand to gain in adding to the catalogue of case laws.

Bye laws of the Society

Whether individual notice under S. 11(2) and R.12 is necessary when society enhances its share value and whether members have not paid enhanced share value have voting rights are the two questions posed in Rajan v. Electoral Officer (2009 (3) KLT 1046). Replying in negative, it was held that a reading of S. 11 in the light of R.12 indicates that S.11 and the individual notices as contemplated under S. 11(2) cannot have any relevance when the society enhances its share value. A substantial number of members have not paid the enhanced value even as on the date of publication of the final voters list. Going by the provisions contained in S. 19 read with R.28 such members cannot have voting right. The exclusion of the members who have not paid the enhanced share value from the voters list needs to be upheld. This proposition has been upheld in the judgment in Jose v. Registrar of Co-operative Societies (1992 (2) KLT 673).

Membership

Once a person is granted membership in a society, even if it is illegal for some reason, unless he is removed following the procedure laid down in R.16(3) or (4), the membership will continue and that ineligibility should be suffered by member subsequent to his acquisition of membership and should be a continuing ineligibility and that continuance is a condition precedent for initiating proceeding under R. 16(4). Otherwise, the rule will have the effect of enabling the Registrar to pick up instances which have occurred long in the past and initiate action whenever it suits him. Such power will be arbitrary and the rule making authority did not intend to confer any such power. This was so held in Porinchu v. Joint Registrar of Co-operative Societies (2009 (4) KLT 105).

Management

S.28 (1) enjoins that the general body of a society shall constitute a committee in accordance with the bye laws and entrust the management, to increase share value of ‘A’ class members, of the affairs of the society to such committee. When the bye law amendment was registered on 27.2.2006, the election of a committee, thereafter, would be in accordance with the bye laws, only if the membership and the entitlement to vote stand modulated by the amended bye law provision. The general body authorized the committee to make the bye law amendment operational since that was the basic requirement to have the election conducted in accordance with the bye laws, for constitution of a committee by the term of the committee then in office would end by efflux of time. On the face of the decision of the general body the committee deferred enforcement of that bye law amendment. This is held against the mandate of the Act and Rules and also against the command of the general body. The undisputed fact is that no member of the society has paid the additional contribution of the share value in terms of that approved amendment. This means that there was none entitled among ‘A’ class members. The resolution of the committee for conducting election would itself be a hallow document, unworthy of any institutional use. The resolution could not stand at all.

On the question of invoking power of the Registrar under R.176 to interfere with a resolution issued under R.35(1), it was held that there is no restriction anywhere in the Act or Rules which denudes the Registrar of the power to rescind the resolution passed by the committee of the society scheduling the election. The Court held further that matters relatable to decision taken by the committee or orders issued by statutory authorities preparatory to or leading to commencement of process of election do not fall with the sweep of S. 69.

On another question whether power under R.176 can be invoked by a person who has contested the election and lost, it was ruled that one may gallantly lose; yet another may meekly win. After battling it out at the hustings, he who lost need not always be expected to rest licking his wounds. A proceedings under R.176 is essentially, not a lis, but referable only to the larger supervisory and visitorial power of the Registrar in terms of that rule. The Court declined to interfere with the orders and dismissed the Writ Petitions in Vijayan v. Joint Registrar (2009 (1) KLT 360).

In Janardhanan v. State Co-operative Election Commission (2009 (1) KLT 1032) it was held that it is not for the committee of a society to make any delimitation of wards that could be done only by the general body. The Act does not contain any provision whereby the Registrar is empowered to issue any decision delimiting the constituencies, because the Registrar does not have the power to amend the bye laws. All that the Registrar is empowered to is to approve an amendment made to the bye laws by the general body. That power does not extend to any power to delimit constituencies, either on geographical or any other basis, within the area of operation of the society, or otherwise tinker with the electoral college. The Court quoted with profit the ratio laid down in Mathai v. State Election Commission (2007 (2) KLT 789).

The question raised in Calicut City Service Co-operative Bank Ltd. v. State of Kerala (2009 (2) KLT 145) was whether S.28A prohibits reservation of more than one seat for women. Answering in negative, it was held that the general body has decided to reserve a particular number of seats for women, in this case, of 33% and thereby fixing the seats reserved for women as 3. That is not impeachable as irrational. It cannot be faulted. In fact, what the bank has done is a laudable and a progressive step towards women empowerment, which should be a matter of application and practice rather than to be confined to vociferous expositions by mere trumpet-calls from platforms. The refusal to register the amendment by the Joint Registrar on the ground that there could be of only one seat for women was not sustainable.

In S. 8A(2) what is provided is that the question whether affiliation should be given or not has to be determined within a period of 60 days and if the determination of that question is not made within that period of 60 days, the application for affiliation is deemed to have been granted and the affiliation is deemed to have been given. The status of affiliation is automatic on the event of expiry of the period of 60 days fixed under S.8A(2). It does not depend upon any further act of declaration or any direction that the Registrar may give. This ruling is made in Sivadasan Nair v. Registrar (2009 (2) KLT SN 10 (C. No.13).

In Irinjalakuda Co-operative Agricultural and Rural Development Bank Ltd. & Anr. v. Kerala State Co-operative Agricultural and Rural Development Bank Ltd. & Ors. (2009 (2) KLT SN 83 (C. No. 84)) it was held that as per definition society which does not restrict its operation to a taluk is not a Primary Co-operative Agricultural Development Bank (PCARD), consequently not a member of Kerala State Co-operative Agricultural and Rural Development Bank. However, by virtue of proviso to S.2(oc) existing PCARD banks operating in more than on taluk are given time of six months from 1.1.2000 to restrict their operation to only one taluk, viz. taluk where their respective headquarters are situated. This being purpose of proviso S.2 (oc) is not invalid. Further by virtue of proviso existing PCARD banks are merely obliged to restrict their operation but they have no right to challenge existence of newly registered PCARD banks unless their area of operation are overlapping.

When the statute under which an authority functions itself lays down a procedure for the authority to follow, then that procedure has necessarily to be followed as held in Abdulla Haji v. Joint Registrar (2009 (4) KLT SN 16 (C. No.16)). Rr.16 and 44 contain the statutory mandate that no order declaring disqualification or cessation of membership is to be issued without a prior opportunity to state objections and, if sought for, an opportunity of hearing. When order of surcharge passed against a member of the committee and when the order was taken up in appeal, he cannot be disqualified without affording a pre-decisional opportunity of hearing.

Election

Amendment providing for filling up of two seats in the committee from among depositors was approved by the Registrar and election was conducted accordingly. Later Registrar directed amendment of bye laws declassifying the two seats earmarked for depositors and to open them up as general category seats. Court in Poothady Service Co-operative Bank Ltd., v. Joint Registrar (2009 (1) KLT 469 ) held that reservations of two seats in favour of depositors from among members who are eligible to vote is not a classification which could be treated as amounting to hostile discrimination and power of Registrar is not sweeping one and cannot flow merely on the ipse dixit of Registrar. The ‘purpose of the better interest of the society’ which can be germane to a decision under S. 12(5), is never to torpedo the prime interest of the society and the views of the general body except in situations where it is contrary to the laws and to the need of the society, as explicit in the existing bye laws.

When the Returning Officer records result of election, elected members become members of the committee by operation of law. The first meeting is only to elect office bearers and authorize by resolution to take charge from outgoing office bearers and a committee can be said to have ‘failed’ to enter upon office only in situations where it would be a ‘failure’ and not merely non-entering of office. The power to appoint an administrator or a committee in terms of S. 33(1)(b) would arise only when the new committee is prevented from entering upon office or the new committee fails to enter upon office. The concepts of being ‘prevented’ and of ‘failure’ are essentially matters and situations where there could be no excuse for entering upon office. Not entering of office due to break down of vehicle etc. cannot be taken as failure. The Court in Chacko Varghese v. Registrar of Co-operative Societies (2009 (1) KLT 538 ) directed the respondent to hear the petitioners and take a decision de nova on the question as to whether the part time administrator appointed should continue or whether the elected committee could assume office.

In Abraham K. Mathew v. Returning Officer (2009 (2) KLT 249 ) the dictum is that under R.35-A(4) Electoral Officer is entitled to consider objections and eligibility to vote of persons included in preliminary voters list before preparation of final voters list. Any objection relatable to the qualification to vote, if raised on publication of the preliminary voters list, shall be considered by the Electoral Officer. The resultant decision would reflect in the final voters list. Otherwise the calling of objections would be an empty formality and leave matters there. Precision, finality and conclusions on controversies are the necessary goals that have always to be maintained and ensured in the electoral process.

R.35-A(6)(b) states that every nomination paper shall be signed by two members who names are included in the voters list; thereby meaning, the final voters list that comes out in Form 35 following the process prescribed in sub-rule (4) of R.35-A. In the case in hand, the final voters list does not contain the name of the second petitioner. Any bona fide and reasonably prudent common man who submits nomination for the election has to first ensure that the person who proposes and the one who seconds the nomination are included in the final voters list. Therefore, nomination paper has to be signed by two members whose names are included in final voters list and not by persons whose names are included in preliminary voters list but omitted in final voters list.

Clause 19.5 of bye laws disqualifies a member of board in case Clause 20 is breached. Clause 20 debars chairman of member society from contesting election of board in case member society failed to supply required quantity of milk in preceding year. Clause 20 is applicable also to persons who have already been elected. ‘Preceding year’ in Clause 20 may be interpreted as year subsequent to election preceding which Clause 20 has been breached. Such interpretation would be in harmony with Clause 19.5 and purpose of provision. Moreover order passed under R. 44 read with Clause 19.5 and 20 of bye laws is not penal in nature and hence contention that ambiguity in penal provision is to be resolved in favour of petitioner is not tenable, vide M.B. Sathyan v. State of Kerala & Ors. (AIR 2009 (NOC) 1534 (Ker).

Allegation that genuine voters were not allowed to vote and votes polled were by persons impersonating genuine voters. No complaint regarding alleged irregularities made to concerned authorities on date of election. Case involving factual disputes as to whether genuine voters were prevented from voting and fake voters were allowed to vote can only be adjudicated after taking evidence and examination of witnesses. Remedy is available under Ss. 69 and 70A and writ jurisdiction cannot be invoked, as held in M.V. Raghavan & Ors. v. The Returning Officer & Anr. (2009 (2) KLT SN 11 (C. No. 15).

An interesting question has been posed touching on the interpretation of R. 44(1)(b) – whether relationship has to be understood with reference to employee in society or with reference to the candidate. Allowing the appeal, the Division Bench in Joint Registrar v. Gopalakrishna Pillai (2009 (4) KLT 824) held that the statutory provision is very clear that the relationship has to be understood with reference to the employee in the society and not with reference to the candidate. If a candidate is a near relative of a paid employee of the society, that candidate cannot be elected or appointed to the managing committee.

Inquiry

Inquiry by Registrar does not include an exercise based on instructions issued by the Minister for Co-operation. S. 65 contemplates two types of actions depending upon nature of defects, viz. major or minor. Registrar under S.65 has necessarily to conclude whether the enquiry reveals only minor defects or whether there is major defect in the constitution or working or financial condition of the society. To initiate action for supersession on basis of findings in an enquiry under S. 65(5), the Registrar has to definitely reach at a finding that there are major defects in the constitution or working or financial condition of the society, as held in Managing Committee of Kandalloor Farmers Service Co-operative Bank Ltd., Kandalloor v. Joint Registrar of Co-operative Societies (G), Alappuzha (2008 (4) KLT 856).

Supersession of Committee

The settled legal principle, as enunciated in Jesudasan v. Joint Registrar of Co-operative Societies (2009 (2) KLT 86) is that if one hears and another decides, then personal hearing becomes an empty formality and mere farce and hearing by a predecessor authority cannot possibly be of any advantage to a successor in deciding the case. In cases of supersession under S.32(1), the occurrence of the statutory facts among the different clauses is the said Section, is a matter about which the Registrar has to be satisfied, if the order that he passes has to stand on a jurisdictional issue. There is no ground to hold that the decision to be rendered under S.32 could be an institutional one. Hence, the officer who hears the objections of a committee to the notice proposing supersession under S.32(1) shall himself decide on the matter. The impugned order, admittedly rendered by one, after the committee of which the petitioner was the President was heard by another, is without jurisdiction. The Court held further that when the statutory function involves adjudication and arrival at certain conclusions for the purpose of imposing of decision which results in consequences affecting statutory rights, they cannot be treated as merely executive functions but are essentially adjudicatory functions and resultantly quasi judicial functions.

This application for review in Jesudasan vs. Joint Registrar (2009 (3) KLT 69) is of the judgment reported in 2009 (2) KLT 86 (supra). In the decision reported it was held that when the objections of committee to a notice proposing supersession under S.31(2) is heard by one officer and order of supersession is passed by successor officer, same is bad and that order cannot be passed by successor officer. In the Review Petition it is contended that proceedings are vitiated from the very drawing up and issuance of pre-decisional notice and the formation of opinion to act under S.32 ought to be by one person and same individual has to decide on objection raised. Rejecting same, Court held that it is unnecessary the same person who was satisfied and had issued the notice giving opportunity to the committee to state its objections, should himself hear the committee on its objection.

Sub-sections (c) and (d) of S. 32(1) are not qualified by the word ‘persistent’. Sub-section (c) is qualified by the words ‘by breach of trust or wilfil negligence’. Misappropriation or destruction or tampering with records or causing destruction of records to cover up any misconduct or malpractice mentioned in sub-section (d) are not qualified for any such words, since such action are per se culpable and only one single instance would do so disastrous to the society that the Registrar would certainly be justified in taking action for that single instance itself. On the question whether proceedings under S. 32 can be invoked against present committee even if some of the members of previous committee which is guilty of action are also members of the present committee, it was replied in negative. Proceedings can be invoked only for actions of the present committee as a whole, who is sought to be proceeded against under the Section, even if some of the members of the previous committee which is guilty of the action are also members of the present committee and not for actions of the previous committee. Further it was held that only if the findings against the committee are such that the continuance of the committee would be extremely prejudicial to the interest of the society, the exceptional and rare action under S. 32 shall be taken. The mere finding that the committee has done the acts alleged alone is not sufficient; the same shall be supported by a further finding that they did the same with a culpable mind, failing which the action of the Registrar would be improper. This view is found in Vallappuzha Service Co-operative Bank Ltd., v. Joint Registrar (2009 (3) KLT 838).

An order of supersession of the board of directors was passed under S.32 based on the findings of an enquiry under S.65. Copy of the enquiry report was not furnished to society or members of board. Based on the report, a show cause notice was issued under S.32(1) to which objections were filed. In compliance with S. 32(2) circle co-operative union was consulted which recommended against any proceedings under S.32. However an order of supersession was passed which is challenged in the Writ Petition. Court in Thiruvalla East Co-operative Bank Ltd. v. Joint Registrar (2009 (4) KLT 378) held that R. 66(5) is mandatory and once an enquiry report is received, Registrar is bound to hear society and members of the board before any action affecting them is taken.

Recovery of Dues

The petitioner employed with a local authority is a guarantor for a loan availed from a co-operative bank. He executed an agreement to which S.37 applies. Default was committed by creditor and bank directed employer to deduct Rs.2000 per month from guarantor’s salary. Same is challenged in Sasidharan Nair v. Trivandrum Co-operative Urban Bank Ltd. (2009 (2) KLT 280) on the ground that decision in Trivandrum Co-operative A. & R.D. Bank Ltd., v. State of Kerala (2004 (2) KLT SN 68 (C. No.79) : 2004 (2) KLJ 85) requires reconsideration and that total amount that could be recovered by recourse to S.37(1) is limited by proviso (i) to S.60(1) and there is an incorporation of 60 CPC by reference going by R.77. Court held that provision in proviso (i) of S.60 (1) CPC and proviso thereto would apply only to attachment under Rules by virtue of R.77 and that in the absence of any limit being fixed in S.37, as to the quantum of amount for deduction from the salary of particular person at a particular point of time, there can be no such inhibition being read into such statutory prescription.

Application of the Right to Information Act

The questions raised in Thalapalam Service Co-operative Bank Ltd., v. Union of India & Ors. (2009 (2) KLT 507) are (i) whether co-operative societies registered under the Kerala Co-operative Societies Act are public authorities for the purpose of the Right to Information Act? (ii) Whether the right to information and right of access to information are fundamental rights? (iii) Whether term ‘funds provided by appropriate Government’ takes within its sweep all funds provided from its own funds or funds which reach societies through Government or with its concurrence?

Even if a co-operative society is a private body, any person who desires to obtain any information in relation to a society, is entitled to move the competent public authority and such information in relation to a society would then be accessible through that public authority, unless the access of such information is forbidden by the Act. Access to information is, therefore, available to citizens in relation to all co-operative societies, in terms of the Act.

Societies are not Government organizations. S. 2(h)(ii) of the Act uses the term ‘Non-Government organizations’, one not defined in the Act. S. 2(h)(ii), therefore, refers to something that is not part of the Government; which is very true of a society. If a society is substantially financed, directly or indirectly by funds provided by appropriate Government, it falls within the inclusive definition of ‘public authority’ within the expanse of that definition clause. Any co-operative society registered under the Kerala Co-operative Societies Act is non-Government organization and if it is substantially financed, directly or indirectly by funds provided by the appropriate Government, it is a public authority for the purpose of S. 2(h) of the Act.

Answering the second question, the Court held that disclosure of information in regard to functioning of Government must be the rule and secrecy an exception. Right to information and right of access to information are species of fundamental right referable to freedom of speech, enumerated in Constitution as a fundamental right.

Funds provided by the appropriate Government is not necessarily providing funds from what belong to the appropriate Government, either exclusively or otherwise, but also those provisions which come through the machinery of the appropriate Government, including by allocation or provision of fund with either the concurrence or clearance of the appropriate Government. The use of words ‘by funds provided by’ enlarges and dilates the scope of the words ‘substantially financed’ in that provision. It has to be remembered that it would never be assumed that the legislature uses language superfluously. This answers the third question.

Dismissing the Writ Petitions, the Court ruled that co-operative societies registered under the Kerala Co-operative Societies Act are public authorities for the purpose of the Right to Information Act and are bound to act in conformity with the obligations in Chapter II of the Act.

Challenging the above decision, an appeal was filed before the Division Bench in Thalapalam Service Co-operative Bank Ltd., v. Union of India (2009 (3) KLT 1001). Partly allowing the appeal, the Division Bench held that for interpretation of the definition of public authority in S. 2(h), the definition of appropriate Government in S. 2(a) can be used as a key. S. 2(a) has two parts – the first part deals with any authority/body/institution of self Government established or constituted by the State Government. The second part clarifies that a body owned or controlled or substantially financed by the funds provided by the State Government directly or indirectly or non-government organizations substantially financed directly or indirectly will come under the definition of public authority. A co-operative society, if at all, may come only under the second part of the definition. It will become a public authority it is substantially financed directly or indirectly by the funds provided by the State Government. Whether the appellant is substantially financed directly or indirectly by the funds provided by the State Government is essentially a disputed question of fact. By virtue of Kerala Co-operative Societies Act and control of the Registrar, the society cannot be held as public authority for the purpose of the Right to Information Act. The control of the Registrar and the control of State Government are distinct and different. When S. 2(a) and S. 2(h) are read together, it is clear that a body controlled by the State Government will be a public authority. The words ‘substantially financed’ alone are qualified by the words ‘directly or indirectly by the funds provided by the State Government’ and not the other words ‘the body owned or controlled.’

The definition ‘information’ contained in S. 2(f) includes information relating to any private body, which can be accessed by a public authority under any other law for the time being in force. The Registrar and the officers exercising the powers of the Registrar have deep, pervasive and effective control over the co-operative societies and can access any information from any co-operative society. Even if a co-operative society is a private body, information can be accessed by the Information Officer concerned and furnish the same to any person.

The next question before the Division Bench was whether Registrar can invoke S. 32 of the Co-operative Societies Act to supersede it for failure to supply details sought for under the Right to Information Act. It was held that obedience to Registrar’s circular is optional and if any society does not obey the said circular no action under S. 32 of the Co-operative Societies Act can be taken against it. The society can, on the basis of the facts and materials concerning it, take a decision and act accordingly. If it feels that it is a public authority, it can appoint an Information Officer under the Act and furnish information. If it thinks that it is not a public authority, it can refuse to act as directed by the Registrar. When the matter reaches before the appropriate authority under the Right to Information Act, the said forum shall decide first whether the society concerned is a public authority as defined under S. 2(h). If it is found that the society is so financed, the competent authority can take appropriate action against the society including coercive action for not acting in accordance with the provisions of the Right to Information Act. If the decision is in favour of the society, the person aggrieved can carry the matter before higher forum. Whether a society is a public authority is a disputed question of fact which has to be resolved by the authorities under the Right to Information Act. There cannot be any general decision on that point by the Court. The finding in the judgment under appeal that co-operative societies are public authorities under S.2(h) is vacated. The appropriate authority under the Act shall take a decision on the point whether a society is a public authority when occasion arises for the same uninfluenced by any observations contained in the judgment under appeal.

Employees of the Society

If a delinquent is required to be placed under suspension beyond a period of six months, it is the bounden duty of whoever is in power to ensure that proper sanction is obtained in terms of law. The fixation of the period of six months in R.198(6) as the period for which an employee could be kept under suspension at one time and the statutory direction that no suspension could be continued beyond one year without appropriate approval of the Registrar are clearly indicative of the fact that the intention of the Rules governing the field is that the employer should not continue to maintain a person under suspension. In fact that would be against the interest of the establishment, vide Indrasenan v. Joint Registrar (2009 (2) KLT 599).

The appeal before the Division Bench in Joint Registrar v. Thiruvalla East Co-operative Bank Ltd. (2009 (3) KLT 185) is from the decision reported in 2008 (4) KLT 220. It was held that R.182 (4) (v) is only directory and not mandatory. As regards reasonable time limit within which interview has to be completed, it was held that if society is allowed to wait till list of candidates with consolidated marks are sent by Board to other co-operative societies, members of managing committee will be able to know marks secured by candidates in list. Same will vitiate interview and hence appointment made are bad.

Junior clerk/cashier is not eligible for appointment as Assistant Secretary by promotion with the aid of R. 185(1) and (2). Direct recruitment can be resorted to for appointment to the post of Assistant Secretary as rules do not specify a particular mode of appointment, vide Padmaja v. Joint Registrar of Co-operative Societies (2009 (3) KLT SN 84 (C. No.76).

The questions raised in Navaikulam Cashew Workers Industrial Co-operative Society Ltd., v. Enforcement Officer (2009 (3) KLT 1039) are whether a public servant on deputation to a co-operative society can still be called as a public servant and whether he can claim the protection of S. 197 of Criminal Procedure Code from being prosecuted in respect of offences alleged to have been committed while on such deputation. Answering both the questions in negative, the Court held that to come within the Clause Ninthly of S.21 of the Indian Penal Code the duty of the officer concerned should have been acting on behalf of the Government. In these cases management of the cashew factories are not given to the petitioners 2 and 3, but to petitioner No.1, the society which is a separate legal entity. There was no agency between petitioners 2 and 3 and the Government, nor were acting on behalf of the Government. As such petitioners are not entitled to the protection of S. 197 of the Code.

Law and Reality : An Indepth Analysis of Section 11(2)(c) of the Kerala Buildings (Lease and Rent Control) Act, 1965

By T.S. Murali, Advocate, Ottappalam

25/01/2010

Law and Reality: An Indepth Analysis of Section 11(2)(c) of the

Kerala Buildings (Lease and Rent Control) Act, 1965

(By T.S. Murali, Ottapalam)

The root cause of this manifestation is the ‘ORDER’ by the Hon’ble Apex Court on the 4th of November 2009. The Civil Appeal No.7088 of 2004 by the tenant appellants was dismissed by the Apex Court (See 2009 (4) KLT 673 (SC)) and the judgment of Hon’ble Mr.Justice K.S.Radhakrishnan & Hon’ble Mr.Justice Pius C. Kuriakose of the High Court of Kerala in Edger Ferus v. Abraham Ittycheria (2004 (1) KLT 767), was upheld.

It was a remarkable judgment by the above two Honorable Judges whereby they held that the old procedure of fixing fair rent, (under S.116 of the Transfer of Property Act and Ss.5, 6 and 8 of the Rent Control Act, 1965) imposing restrictions in the revision of rent, amounted to unreasonable restriction affecting the fundamental rights guaranteed under Art.19(1)(g) and to the extent of its inconsistency, the said provision would be void under Art.13(1) of the Constitution of India, so far as fixation of rent is concerned. This is so because the construction of buildings and letting them out to tenants, by landlords would come under Art.19(1)(g) of the Constitution of India (to practice any profession, or to carry on any occupation, trade or business) and hence is a fundamental right.

As Sections 5, 6 and 8 of the above Act were held as unconstitutional, they were struck down by the Hon’ble High Court in Issac Ninan v. State of Kerala (1995 (2) KLT 848). So, S.5(1) was retained in the Act (in Edger Ferus case, Supra) to enable the Rent Control Courts to exercise its power to fix fair rent, as total prohibition in claiming enhanced rent would amount to unreasonable restriction and also would be violative of the fundamental rights of the landlords as guaranteed under Art.21 of the Constitution of India. (No person shall be deprived of his life or personal liberty except according to procedure established by law).

The Former Chief Justice of India, P.B.Gajendragadkar, said, “Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct. The bottom line is “deserve respect from the public at large.”

The ‘Supra’ case (2004 (1) KLT 767) will be an eye-opener to some of the unconstitutional provisions in the very old Kerala Buildings (Lease and Rent Control) Act, 1965, as the respective State Governments are not contemplating any steps to amend the said provisions, except some amendment bills (in the year 2002 and 2007) which never got passed by the respective Legislative Assemblies.

One provision which seems to have escaped the eye of everyone is the relief a tenant gets under S.11(2)(c) of the Act. According to this sub-section, the Rent Control Court can vacate the order, directing the tenant to put the landlord in possession of the building for rent arrears.

The eviction order shall not be executed before the expiry of one month from the date of such order or such further period as the Rent Control Court may in its discretion allow, if the tenants deposits the arrears of rent with interest at six percent and cost of proceedings within the said period of one month, or such further period. S.11(10) gives the powers to the Rent Control Court to enlarge the time frame given to the tenant to deposit rent arrears. This power can be exercised more than once. (Sulochana v. Kalyani (2006 (1) KLT SN 85 (C.No.123). (‘more than once’ means any number of times) The period of one month could be counted from the date of order passed in revision also. (Gangadhara Rao v. Sidhartha Paniker (1988 (1) KLT 333).

What happens in reality is that a perpectual and continuous defaulter (tenant) of rent, as well as a tenant who has some silly or serious animosity towards the landlord, commits the default again and again. The landlord has to file RCP’s again and again against the same tenant or against tenants who have committed several defaults in the past. It makes justice through litigation inordinately dilatory and costly and the law becomes the (only) means for the aggrieved landlord to get relief. The tenant is directed to pay the arrears with interests and costs, but the law does not consider the hardships a landlord has to face going through the trial again and again, (especially in the case of aged, indisposed and women landlords). The tenant is getting a notice to pay arrears which is mandatory under S.11(2)(b) of the Act. Some tenants do not even care about this registered notice. They may, to take some action, pay a small amount and again make a default and keep rent arrears pending through out. Some clever tenants even have misused this provision to frustrate and bend the landlord to their tunes, so that the landlord may finally sell the building to the tenant for a meager or far less than the market price.

Justice V.R. Krishna Iyer has said : “Man lives in the short run, but litigation lives in the long run”. It is common knowledge that in our country litigation takes several twists and turns and literally crawls in the long run. Dispensation of justice gets unduly delayed thereby justifying the axiom, “Justice delayed is justice denied”. He adds, the litigant has only one life, but the litigation has several lives to see it’s end. One appeal is necessary, two is too much, but we have four to five decks to spiral up. The (Supra) appeal in the Hon’ble Apex Court took five years to be final. (Civil Appeal No.7088 of 2004, Edger Ferus v. Abraham Ittycheria)

There is a provision in the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. Under S.11(1) of this Act, the tenant shall not be entitled to the benefit of protection against eviction under this section, if, notwithstanding the receipt of notice under proviso to cl.(i), the tenant makes a default in the payment of the rent, on three occasions within a period of eighteen months. (referred to Cl.(i) of the proviso to S.11(1) of the Act).

In G.Reghunathan v. K.V.Varghese (2005 (4) KLT 147 (SC) = AIR 2005 SC 3680), Justice P.K.Balasubramanian, considered the scope of analogous provisions in sister enactments of other States.

The Apex Court has held that even a part payment of rent amounts to default of rent. (Janak Raj v. Pardeep Kumar in Civil Appeal No.7080 of 2001). This is a remarkable judgment since there are several tenants who make continuous default and part payments, especially when the landlords make a living out of the rental income. They have to pay municipal and other taxes, do the repairs and maintenance for the tenanted building, pay electricity and water charges, if the tenants commonly enjoy it in the building.

Socrates once said, “Four things belong to a judge; to hear courteously, to answer wisely, to consider soberly and to decide impartially. “It is not what you look at that matters, but what you see”, so said the American Philosopher, Henry David Thoreau. Law is only a law, if it is life preserving and life enhancing. The concept of equality conceived and incorporated in Art.14 of the Constitution is intended to achieve it. The very idea of law carries with it a value. Man needs law and must do what is necessary to create and maintain it. No doubt, a keen and burning desire to do justice must be the foundation of judicial eminence.

In Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation & Ors. ((2002) 5 SCC 440), the Hon’ble Supreme Court held that a Statute can never be exhaustive. Legislature is incapable of contemplating all possible situations which may arise in future litigation and in myriad circumstances. The scope is always there for the court, to interpret the law with pragmatism and ‘consistently with the demands of varying situations’. The legislature intent has to be kept in mind and not in a pedantic manner. Not the letter of the law by assigning a literal meaning, but the purposes ought to be achieved by the legislature has to be kept in view. A benefit granted by the legislature to a certain section or community cannot be said as a violation of Art.14 of the Constitution. But a Court should not shut its eyes towards the practical realities of life. A legislative intent to protect one party should not be a violation of the Constitution on the rights of the other party. The legislation will not or should not intent to protect a recalcitrant or rebutting party.

S.11(2)(c) gives a tenant undue advantage and makes the life of the landlord miserable. Suppose, if there are 25 shops which the joint or single landlord’s have let on rent and if ten of them defaults on monthly payment of rent, the landlords are put to great hardship. The proviso to cl.(b) of S.11(2) creates a liability on the tenant to pay interest at six percent per annum on the arrears of rent and the cost of the proceedings. It is immaterial even if there is any stipulation in the agreement of tenancy, to pay a higher rate of interest. Whereas the landlord might be paying a very high rate of interest on a loan taken for a newly constructed building or a re-constructed building or even loans taken for major repairs and maintenance. There have been many instances whereby the interest was allowed only from the date of the Trial Court order or the revision court order and not from the date of actual default. The costs allowed in final orders are a bare minimum whereas in actual terms they are ten times higher. No lawyer would or can argue a case for as low as 500 rupees in the current scenario of high inflation rates and variation in the cost of living index. The Advocates Act surely needs an amendment for the benefit of the lawyers themselves as well as a rightful tenant or landlord.

Dr.Justice AR.Lakshmanan, Chairman, Law Commission of India, has said that ‘all have equal rights, but unfortunately all cannot enjoy the rights equally'. The Constitution of India guarantees to all its citizens rights of life and personal liberty, right to equality, right to freedom, etc. Apart from these public rights, there are various private rights arising from torts and contracts and also various social welfare legislations.

The British Judicial system is one which has high regard for individual liberty. Lord Denning has said, every legal problem is essentially ethical in nature. If there is conflict between legal justice and ethical justice, it is perfectly within the province of a Judge to remove it. He declared, “my root belief is that the proper role of a Judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the Judge to do all that he legitimately can do to avoid that rule or even to change it - so as to do justice in the instant case before him. He need not wait for the legislature to intervene”. Lord Denning clarifies what is Justice ? He says, it is not temporal but eternal. It is not the product of a man’s intellect but of his spirit. Lord Denning believed in humanistic ethics rather than authoritarian ethics. In authoritarian ethics, an authority states what is good for man and lays down the law and norms of conduct. In humanistic ethics, man himself is both the norm giver and the subject of norms.

Justice Harold Andrew Blackmun (1908-1999), who served the U.S. Supreme Court until 1994 has observed, ‘There is a world out there, the existence of which the Court, I suspect, either choose to ignore or fear to recognize. The Constitution must be a force that would serve justice to all evenhandedly.

Art.13(1) and 13(2) of The Constitution says laws inconsistent with or in derogation of the fundamental rights before the commencement of this Constitution or any laws passed by the State which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. A landlord can apply to the Rent Control Court under sub-ss.11(2) (3), (4), (7) and (8) of the Act for an order “directing the tenant to put the landlord in possession of the building”, (possession is permanent, except in sub-ss.11(4)(iv) and 11(5) where the eviction and possession is temporary) These sub-sections deal with the grounds on which the landlord can get back from the tenant, the permanent and temporary possession of the tenanted premises. The same expression is used in S.108(q) of the Transfer of Property Act, 1882. The grounds under S.11(2)(b) to get back permanent possession of the building is defeated by S.11(2)(c) which is unconstitutional.

Construction of buildings and letting them out to tenants, by landlords would come under Art.l9(1)(g) of the Constitution of India (to practice any profession, or to carry on any occupation, trade or business) and hence is a fundamental right. No company, firm, dealer or shop-keeper will do business with a client/customer who defaults in payment. They will reconsider their decision to do business with customers who show a tendency of lameness in payment.

Art.14 of The Constitution says ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’. There is no Section in The Kerala Buildings (Lease and Rent Control) Act, 1965 which gives the landlord the fundamental right to receive rent without fail and delay, unless there is a specific reason on the part of the tenant. S.11(2)(b) is only a remedy to evict the tenant for rent arrears but the landlord looses this right due to S.11(2)(c) of the Act.

Art.21 of the Constitution says, ‘no person shall be deprived of his life or personal liberty except according to procedure established by law’. But if that law (a certain provision in the Rent Control Act) violates Art.13(1) and (2) of the Constitution, then how can a person get protection of his liberty ?

Art.39 of the Constitution mentions about the ‘Directive Principles of State Policy'. Art.39(a) says that the citizens, men and women equally, have the right to an adequate means of livelihood. The landlord’s adequate means is to get the rent in time and without delay or fail.

Under PART IVA of the The Constitution of India, Art.51A(h) says that ‘it is the fundamental duty of every citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform’. Every adversity creates an opportunity. When there is a “duty to speak”, it is for responsible lawyers, citizens, former Judges and sitting Judges to speak out, publicly or privately and create an opinion.

“Many ideas grow better when transplanted into another mind than in the one where they sprung up”. This quote by Oliver Wendell Holmes Jr., (1841-1935) American Judge and Jurist, will go a long way, if the legislature and the legal fraternity upholds the virtues and values of the rights propounded by the fathers of the Constitution of our country.

A ‘Son-in-Law’ under Hindu Law is a Dead Wood

By N. Dharmadan, Senior Advocate, High Court of Kerala

25/01/2010

A ‘Son-in-Law’ under Hindu Law is a “Dead Wood”

(By N. Dharmadan, Senior Advocate, High Court of Kerala)

The legal position of a son-in-law under the Hindu Law is very precarious. The rights and obligations of a Hindu are determined by Hindu Law, which is generally considered to be the most ancient pedigree of any known system of jurisprudence. Manu is the highest authority on this law. It is said by the jurists that the law did not derive its sanction from any temporal power. The sanction is contained in itself. Law is “the King of Kings, far more powerful and rigid than they, nothing can be mightier than the law by whose aid, as by that of the highest monarch, even the weak may prevail over the strong”.

The Hindu Law does not provide for the rights, duties, obligations etc. of a son-in-law, even though Hindu Law is understood by all Hindus as a branch of “Dharma”. Therefore a son-in-law, is a weakling in the legal firmament. His rights and obligations are not codified by the law makers. He is neither a coparcener nor a member in a Joint Hindu Family. It is to be remembered in this connection that a daughter ceases to be a member of her father’s family on marriage and becomes a member of her husband’s family.

A joint family generally consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The conception of a Joint Hindu Family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line normally within four degrees and no coparcenery can commence without a common male ancestor. A coparcenery is purely a creation of law and it is much narrower than a Joint Hindu Family. It consists of sons, grandsons, great grand sons of the holder of the joint property for the time being.

A son-in-law does not figure in the field of inheritance. He has no right to inherit caparcenery property nor has he got any right of succession to ‘streedhana’ which according to Manu is woman’s property to be divided into following six categories.

(1) Gift made at the time of marriage (adhyagni)

(2) Gift made at the bridal procession (adhyavahanika)

(3) Gift made in token of love (padavandanika)

(4) Gift made by father (-do-)

(5) Gift made by mother (-do-)

(6) Gift made by brother (-do-)

After the enactment of Hindu Succession Act, 1956 there is an order of succession. Under the Act son, son’s son, and son’s son’s son, daughter, daughter’s son, mother, father, brother, brother’s son, grand mother etc. would be included in the order of succession, but a son-in-law would not come in the picture. He is not included in the order of succession. In this Act a ‘heir’ is defined to mean any person male or female, who is entitled to succeed the property of an intestate under the Act. Here also a son-in-law is omitted. The order of priority, under the Act is confined to (1) firstly upon sons, daughters and the husband (2) secondly upon heirs of husband (3) thirdly upon mother and father (4) fourthly upon heirs of father and (5) lastly upon the heirs of the mother. But in a text of Brihaspati, while discussing the law of succession to ‘Stridhana’ prior to the coming into force of Hindu Succession Act, under the Dayabhaga school a son-in-law figures in the last category of heirs; it is beginning with the husband’s younger brother and ending with the daughter’s husband (son-in-law). But after the changes brought about by the Hindu Succession Act this is only history; it has no relevance for the issue to be discussed in this connections.

The self earned property of a woman is either streedana or property devolved to her as heir. In the matter of succession to property, which is inherited by a female from her parent, when sold for purchasing property in her name out of sale proceeds, the special rules of succession under S.15 of the Act would govern on her death. Here also a son-in-law is omitted. Even when a woman gets property on partition for her maintenance she becomes full owner by virtue of S. 14 and on her death her children becomes owner of her property under S.15 and not the whole family so as to include the son-in-law also in his capacity as husband of deceased wife. He does not get a legal and valid right to property of his wife on her death.

Marriage was a well established institution from time immoral. It was held in a very high place among Aryans in India from very early times. The sacredness of the marriage was repeatedly declared holding women in high honour during vedic period. The Hindu conception of marriage is that it is a ‘samskara’. The corresponding English word is “sacrament”. It was considered to be a purificatory ceremony prescribed by religion. It is the last of ten sacraments enjoyed by the Hindu religion for generation of men and it is obligatory in case of every Hindu who does not desire to adopt the life of a Sanyasi. The law relating to marriage among Hindus was amended and codified by the Hindu Marriage Act, which came into force on 18th May, 1955,. Though in all marriages invariably the bridegroom is the glittering star, who attracts attention of all concerned in the function (as a son-in-law so far as the bridal family and father of the bride is concerned), with unbridled right over the bride, he does not enjoy any legally recognized right vitally protected by any statute or Hindu Law principles over the property belonging to the bride, who after marriage marches with him to his house to spend rest of her life in his house.

After marriage married partners enter their new home, which is usually with groomic family. In olden days chanting ‘mantras’ is very common to ensure that the bride will in due course give birth to a male child. In those days the main purpose of marriage was considered to be to produce male offspring. Manu declared that for a woman marriage was “for all time, irrevocable and indissoluble”. Divorce and remarriage were absolutely forbidden in those days. The Hindu Marriage Act, 1955 has effected revolutionary changes in the law of marriage of Hindus. It abrogates all the rules of the law of marriage hitherto applicable to Hindus. It also supersedes other laws on the subject, either in any central or State legislation in force immediately before it came into operation. Hindu Marriage, under the Act, is a monogamous marriage solemnized after observing essential rites and prescribed ceremonies.

This Act introduced the roles of monogamy, allowed marriage between different casts, given very wide meaning to the term ‘Hindu’, given dear definition to the word ‘sapindas’, abolished distinction between ‘Mitakshara’ and Dayabhaga’ school of thought about ‘sapinda’ relations, permitted marriage between personal belonging to same ‘gotra’, prescribed minimum age and prohibited degree of relationship, provided for the right of dissolution, claming judicial separation, decree for nullity of marriage, claming alimony etc. But the legal position and the property right of a son-in-law remained static. There was no improvement.

The Hindu Inheritance (Removal of Disabilities) Act wiped off all disqualification and ground for exclusion from inheritance. The only disqualification, out of the many that the textual Hindu Law had prescribed, which had been preserved by this statute is disqualification arising from congenital lunacy or idiocy. The enactments, viz: the Hindu Marriages Validity Act and Hindu Marriage Disabilities Removal Act do not deal with the rights and obligations of a son-in-law. The former confers legitimacy on the children born of the marriages between parties belonging to different religions, castes, sects etc. and the later validated inter-caste marriages with retrospective effect. A son-in-law is not a beneficiary of any of the provision of these statutes. There are no other statutes relevant for consideration to discuss the rights and obligations of a son-in-law in Hindu Law.

But it is pertinent to note in this connection some of the special situations arising under the Hindu Law principles due to the application of long continued customs and precedents among Hindus. There may be special or peculiar circumstances which arise mainly on account of the operation of “customs”. Right of a son-in-law over the property in “composite families” is one of such special provision prevalent in India and it is relevant to be considered in this connection, even though it was in fact unknown to the original texts of Hindu Law.

A “Composite family” arises in the case where there is an affiliation by two “illatom” management for a corporate effect by two or more families which join together to function with the object of maintaining joint rights over common property. It is very much customary and prevalent only in certain areas or locality. “Custom” undoubtedly accounts for the origin and growth of the “composite families”. “Composite family” can be created by living together of the representatives of different families by pooling their labour and property with a view to facilitate convenient and beneficent management of their property or for the effective continuance of family business, profession etc. Its need arises from its very nature to be established by unimpeachable evidence or agreement of such merger of the units constituting the “composite family”.

In otherwords the families usually knit together by strong ties of marriage in the best interest of entrusting management of the duties and responsibilities of profession, business and maintenance and management of their house hold duties, cultivation of landed properties etc. The above are only mere illustrations. As a matter of fact there can be several other considerations or compelling circumstances which may bring two or more families together blending them into one composite whole reinforcing them further by strong ties of matrimonial union and other relations. The obligations and duties arising out of such an arrangement provide for benefit of a son-in-law, who helps the father-in-law in the management of the family affairs and properties giving rise to an agreement the benefit of which will accrue in favour of and to the prosperity of the “illatom” son-in-law, who lives under the shadow of the father-in-law worshiping him as his patron.

A son-in-law on marriage does not get any legal right over the property or a statutory protection to participate in succession in case of death of his wife under the Hindu Law and principles followed thereunder. Though in “Composite family” and “Illatom” management, a son-in-law is also included in order to acquire and preserve some of the rights, duties, obligations etc., unimpeachable, strong and convincing evidence of the above referred agreement or prevalence of custom is insisted as a sine-qua-non for establishing such of those limited rights of a son-in-law under the Hindu Law.

Photo - Trick

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

28/12/2009

Photo-Trick *

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

Dear Mr.President,

I regret my embarrassment; but I have to say that it should not have been done. I only fear what I do not understand. I say in forceful whisper that the photograph of Senior Advocate Sri.Dharmadan should not have been removed and hung on top of the dead-end of a wall of the Association Library, (the knowledge intensive sector), for yielding place to a portrait of Sri.M.U.Issac, (a former Judge of the High Court), over a plaque of adoration. Please realise that I am not releasing any hatred towards anybody, nor am I intending to rush down the path of conflict with those connected with the photo-trick. Having heard about it, I could not sit like a spare-part. In all, it seems to be a wrong and illegal act, perhaps even bordering on an offence under ‘the bloody book of law’. Good Gracious, this should never have happened.

I do not require the assistance of any fortune-teller, palm reader, or card reader to venture the view that it is an affront to the dignity of the Senior Advocate to evict him from his premises on the wall, only to induct a new-comer in his place. Is this the way to honour Sri Issac -- honouring Sri Issac by insulting Senior Advocate Sri Dharmadan? Is this the guide-post in the Association’s rules ? Laughably single, it looks like.

I say with the privilege of antiquity upon me that the person responsible for replacing the photograph should have realised that there came no message by fax from heaven to do so. How was it that the ars magna was performed without adopting the proper method of going before the General Body. My unpleasant suspicion may be cleared.

After all, the situation only demanded the fixing of a new portrait on a wall, not so complicated as the mysterious portrait drawn by the Italian Wonder Leonardo Da Vinci. By the present act, with reference to which I am addressing you, I am afraid, the culture of lawyers is damaged, the lawyers as a class are disgraced; no lawyer can endure to hear this rash act of insult to a learned friend.

I hear a whisper from the photo gallery of the High Court Advocates Association that every portrait hanging on the walls is afraid of ‘eviction’.

Mr.President, please remember that respect does not depend upon a lawyer’s bank-roll.

Respected President, kindly publish this letter on the notice board for the information of the members of the Association.

* Letter, dated November 10, 2009, addressed to the President, Kerala High Court Advocates’ Association.

Astrologer -- Not Lawyer

By K. Ramakumar, Advocate, High Court of Kerala

28/12/2009

Astrologer -- Not Lawyer

(K.Ramakumar, Sr.Advocate, High Court of Kerala)

Shri T.P. Kelu Nambiar needing no introduction to the legal fraternity had time and again expressed his longing to be a lawyer in his next birth too (See 2009 (4) KLT 29).

An eminent and worthy senior member of the Bar has to emulated. But, and - a big but too - I have a caveat to enter.

What will be the state of affairs of our law courts at the time, when Shri Nambiar, accomplishes his wish. (I very much wish it will be a long way off). Better or worse. The way things are going, even a sanguine optimist will not venture an opinion for “Better’.

Law is fast disappearing from Law courts themselves. Nobody goes by the Rule Book. And those who are enjoined to ensure that others stick to the Rule Book often do not go by the Rule Book. See the decision of the Division Bench in the District Judges case.

Discretion, it is well settled has to be exercised on sound legal principles and not will .o. the wisp. Look at the ever expansive and enormous area of discretion. Art.136 gives the Apex Court the extensive power to decide whether that court should examine any matter arising from any part of the country. The powers given by Art.136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, by granting of special leave, against any kind of judgment or order made by a Court or Tribunal in any cause or matter and the powers could be exercised in spite of the specific provisions for appeal contained in the Constitution or other laws. The Constitution for the best of reasons did not choose to fetter or circumscribe the powers exercisable under this article in any way”. (See Delhi Judicial Service Association v. State of Gujarat (AIR 1991 SC 2176). And the jurisdiction to “do complete Justice” extends upto the sky and the Apex Court held it can act even against law. Rejecting the contention of the country’s top lawyer Sri F.S. Nariman that in our country there is no court of universal jurisdiction, this is what the Apex Court said about its powers. “Under the Constitutional scheme this court has a special role, in the administration of justice and the powers conferred on it under Arts.32, 136, 141 and 142 form part of basic structure of the Constitution. The amplitude of the power of this Court under these Articles of the Constitution cannot be curtailed by law made by Central or State Legislature”. In that case, on a Writ Application not by the affected party but by the Delhi Judicial Service Association, proceedings against a Magistrate in Gujarat, were quashed even without an application. Later a two Judge Bench declined to follow a Larger Bench (See T.K. Rangarajan v. Government of Tamil Nadu (2003 (3) KLT 86 (SC) = AIR 2003 SC 3032)) also invoking Art.142. In Royappa v. State of Tamil Nadu (AIR 1974 SC 555) a top class civil servant was harassed, hurt and humiliated by a transfer, and yet after enunciating the high sounding principle “equality and arbitrariness are sworn enemies”, the court declined to interfere. At the same time in Sankalchand, a Presidential Order under Art.222 of the Constitution, the only statutory provision for transfer, was interdicted on the ground that the transferee had a 75 year old father and 70 year old mother to look after and his consent has not been obtained before the transfer. Ironically Justices Bhagavathy and Krishna were members of both the Benches. Significantly Justice Bhagavathy quoted the following from Justice Douglas - “ Absolute discretion like corruption, marks the beginning of the end of liberty”.

Imagine the highest court of justice acting against the statute - In short against the Rule Book. Suppose they extend it to the most important document of the Country -the Constitution. Does it mean Art.142, can over-ride the supreme Rule Book of the Nation. It looks like. Areas earmarked or believed to be so, exclusively for the Legislature and the Executive have been encroached upon many a times by the Apex Court. Of course, for doing , ‘complete justice.”

How about Special Leave Petitions under Art.136 ? Years back in the sixties, the Supreme Court was deciding the issue whether “Rummy” is a game of “chance or skill”. The irrepressible C.K. Dafthary, the former Attorney General endowed with quick wit and sharp tongue was walking majestically into the Court. Spotting him, one of the Judges asked him - Mr Dafthary, what is a game of chance ? Immediately came the reply “a Special Leave Petition - My Lords”. Needless to say the entire Court burst into laughter. Again in the late Sixties, this humble writer had the privilege of consulting Sri Nani Palkhivala, who gave the time at 11.30 p.m. in his Chamber in the Bombay High Court. After referring to the Income Tax Act, and the Income Tax Reports, he said “It all depends on the Judges”. Means what ? Whatever be the law, it depends on what the interpreter of the law feels about it, which further means discretion unlimited.

Discretion now is safely secured not only under Arts.136 and 142, but under Arts.226 and 227, not to speak of S.151 of the Code of Civil Procedure and Ss.437, 438 and 482 of the Code of Criminal Procedure.

In short, even if you make out an excellent case in law, discretion can defeat you. No wonder an American Lawyer had the unenviable experience of his wife suing for divorce on account of incapacity to procreate a child and getting a decree and at the same time his maid suing him for grant of maintenance to the child claimed to be begotten through him - also decreed.

And even a people’s Judge and a perfect Judge too, Sri Krishna Iyer had conceded that in awarding death sentence the personal predilection of the Judge prevails. Ultimately what is the fall out ? To grant special leave or not, to admit a case or reject it at the threshold, to grant interim order, to grant bail, to quash an abusive prosecution - All “depends on the Judge” as the top lawyer of India opined as early as in Sixties.

Today, predictably it has become more unpredictable. And left to me, I do not envision any ray of hope of imminent change.

The Sun and the Moon will last for ever. So are the Stars and other planets, the movements of which are matters of certainty and precision as our ancestors had identified long back, unlike legal principles and the views of courts and Judges. Astrologers I expect will have a field day in future.

I therefore, seek the blessings of Sri Kelu Nambiar, not to emulate him in his wish to be reborn again as a Lawyer as I feel re-birth as an Astrologer will be far more rewarding and remunerative than a Lawyer.