C.P.C 1908, A Century of Distilled Wisdom
By K.V. Sohan, Advocate, Ernakulam
23/03/2009
CIVIL PROCEDURE CODE, 1908 -- A CENTURY OF DISTILLED WISDOM
(By K.V. Sohan, Advocate, High Court of Kerala)
The strength of substantive laws largely depends upon the dexterity of the procedural laws. It is the quality of the procedural law of a country, which determines the merit of dispensation of justice, which in turn secures an orderly society. A fair procedure helps the citizens in securing freedom, liberty and saves his property from the invasion of fellowmen. An efficacious, inexpensive, speedy and guaranteed, right to approach the Civil Court for redressing an injury prevents the masses from taking the law unto itself. The Civil Procedure Code, which was first unified in 1859, re-enacted in 1908, amended from time to time, no doubt served the purpose in its own compassionate, gentle, but in a forceful manner.
What the proficiency of the chef to the food, is what the proficiency of the Judges to the justice delivery. The role of the procedural law is that of the utensil and fire in preparation of justice to be served to the litigant. Just as an efficient chef uses appropriate utensil and keep proper flame, an efficient Judge uses apt procedure to its necessary limit. No doubt the power of any procedural law depends on the knowledge, efficiency and integrity of those who implement it.
Notwithstanding some contra voice, The Civil Procedure Code was the procedure applicable to writs prior to the insertion of Explanation to Section 141 of C.P.C. by 1976 amendment. But even after the amendment, when situations arose, the constitutional courts found vacuum of procedure and was constrained to hold that principles of the Civil Procedure Code are applicable while exercising constitutional jurisdiction also. (Refer decisions of the Supreme Court regarding compromise, abatement, impleading parties etc.,) .In many special statutes Civil Procedure Code is incorporated by citation totally or partially. This will show the indispensability of the Code.
The Civil Procedure Code which had woven a web throughout the territory of India on the pillars of the civil courts of lesser and unlimited jurisdictions known by names, The small Cause Courts, Munsiff Courts, City Civil Courts, Subordinate Judge’s Court, District Courts etc., is one of the most important unifying force. The provision to transfer a suit, or of a decree obtained from any Civil Court in any State to any other Court in the country for implementation gives confidence to persons throughout the country to enter into transaction with another residing in any other part. Application of the Code is irrespective of any religion, caste or creed with equal force. Barring some necessary provisions, compassionate to women, farmers and the indigent, it treats every litigant equally. Equality of treatment among equals is sublime in every provision of the Code. One who fails to study and understand the social need and aim of a comprehensive and fair procedural law may complain that the Civil Procedure Code is an archaic and unnecessarily complicated procedure. On the contrary an enlightened Judge stated that, “The more you study the Civil Procedure Code the more you realize what an admirable peace of legislation it is”. (Attention is drawn to 2001 (3) KLT Journal Page 1).
The furor about the inefficaciousness of Civil Courts and the clamor to do away with the Civil Procedure Code is illinformed or shortsighted. The hope of common man in getting justice to the satisfaction of his ego, to protect his rights, power and property is through the Civil Court, which is within his reach. Weakening the Civil Courts system by blaming the Civil Procedure Code is an intentional act. Justice S.B.Sinha, Judge, Supreme Court in an address at the National Judicial Academy expressed anguish about the tribunalisation and the executive hijacking of the large chunk of judicial work. (The Hindu Daily Dt: 9th February 2009)
The jurisdiction of the Civil Courts in the matter of adjudication of the contract, security debts, consumer disputes, leasehold and tenancies, tortuous liabilities etc., are taken away in respect of matters in which the State, State owned Corporations, Banking Companies or Co-operative Banks etc., are against ordinary citizens. (Arbitration Act, Debt Recovery Tribunal Act, Securitisation Act, Revenue Recovery Act, Claims Tribunal Acts etc.,) The inequal treatment in the matter of Court Fee for powerful institutions like Bank is evident from fixing Rs.12,000/- for recovery of 10 lakhs, whereas an ordinary man before the Civil Court has to pay 10% of the claim. The fixation of exorbitant Court Fees in Civil Court is one way of preventing ordinary citizens approaching the Civil Court thereby grabbing the adjudication work to non-judicial forums undermining the constitutional basic structure of separation of power. Arbitration without following any procedure, Securitisation actions mercilessly initiated by Finance Managers without giving sufficient time to the debtor to save him from his indebtedness are depriving them of their valuable properties.
Important is the role of the Code in combating and preventing corruption. Its provisions for open trial, meticulous pleadings, service of summons, giving sufficient opportunity by setting aside exparte, discovery and inspection, production of document, settling issues, calling witnesses, adjournment, hearing, necessity of reasoned judgment, appeals, revisions, review etc., assure an independent trial and an impartial adjudication of the Lis.
In the wake of growing social inequalities and the consequent incapacity of citizens to protest and establish his rights, an alternative is to revamp the civil judicial system of the country to make all the judicial remedies available within the reach of common man at the District levels in ordinary Courts. The Tribunals be abolished, instead establish specialized Courts in all the Districts to adjudicate all types of disputes. From the District level Courts, an appeal to the Bench of the High Court and from the Appellate Judgment of the High Court a limited appeal to the Supreme Court giving finality. Vigorous training to the Judicial Officers, Advocates and Staff of the Courts reminding them of their duty of providing equal treatment to the litigant in a democratic system is absolutely necessary. The Civil Procedure Code, which served the justice delivery system of the nation well in the past century, requires only to be updated to meet the situation that arose due to the technological development and large-scale commercial transactions.
CPC. is not 100 Years But 149 Years Old
By N. Subramaniam, Advocate, Ernakulam
16/03/2009
CIVIL PROCEDURE CODE IS NOT 100 YEARS OLD BUT 149 YEARS OLD
(By N. Subramaniam, Advocate, High Court of Kerala)
1. The Code of Civil Procedure has its existence from 1859. Before the Code of Civil Procedure 1859, there was no codified procedural law applicable to the whole of British India. There were separate Regulations and Acts applicable to Courts in the Presidency and mofussil Towns. The first Code (Act VIII of 1859) did not apply to courts established by Royal Charter and it was made applicable to High Courts on their establishment in 1862. Code of 1859 applied only to mofussil Courts.
2. The Letters Patent of 1862, establishing High Court extended to them, the Procedure of the Code of 1859. The Charters of 1865, which empowered High Courts to make rules and orders, regulating proceedings in Civil cases, required them to be guided, as far as possible, by the provision of the Code of 1859 and subsequent amending acts. After 1859, there was Civil Procedure Code in 1861.
3. Next Code was Act X of 1877 and this Code repealed the Code of 1859. This was amended by Acts 18 of 1878 and 12 of 1879 and then superseded by the Code of 1882 (Act 14 of 1882). This was amended by Acts 15 of 1882, 14 of 1885, 4 of 1886, 10 of 1886, 7 of 1887, 6 of 1888, 10 of 1888, 13 of 1889, 8 of 1890, 6 of 1892, 5 of 1894, 7 of 1895, 13 of 1895 and later superseded by Code of 1908.
4. The Civil Procedure Code of 1908 not only defines and amends, but also consolidates the law of Civil Procedure. The very Preamble states so.
5. Consolidation means the fusing of many Acts into one. (see 33.C.W.N 1077 = 1930 Cal. 225]. Reference to previous state of law is permitted only when there is ambiguity. (see ILR 29 Cal. 788 P.c) (ILR 20 Mad. 97)
6. This Code of 1908 is not exhaustive. But it should be treated as exhaustive on points specifically dealt with therein. (see ILR 29 Cal. 707 P.C))
7. When there is no specific provision in the Code, Courts should be guided by justice, equity and good conscience.
8. Even if Civil Procedure Code is not made specifically applicable, courts can invoke and use C.P.C. [Workmens Compensations Act; Industrial Disputes Act, Motor Vehicles Act, Co-operative Societies Act; Income Tax Act are examples where C.P.C. can be invoked]. Foreigners are not exempted from the operation of the Code (1903 ILR 26 Mad. 544; P.C. 1927 All. 413). (However, Insolvency Act 111 of 1909, Testamentary and intestate matters are covered by Indian Succession Act 1925, Matrimonial matters by Indian Divorce Act, Hindu Marriage Act, Special Marriage Act.).
9. Various Princely States had their own Code of Civil Procedure. The Code of Civil Procedure V/1908 was extended to the whole of India, (except tribal areas of State of Assam, some schedule areas in the State of Madras, State of Jammu and Kashmir and State of Manipur, by S. 2 of C.P.C Amendment Act 1951 (Act 11 of 1951) which took effect from 1.4.1951 as per notification of Government of India dated 7.3.1951).
10. Under S.122 of the Code of Civil Procedure power is given to certain High Courts to make Rules and such rules made by High Courts become part of the Code. (See. AIR 1980 SC 591 - (1980) 1 SCC 198). One-example of an amendment made by Kerala High Court is in Sub-r. 2 in R. 92 in O.XXI, by which 60 days was substituted in place of 30 days for deposit of amount under O XXI R. 89. This was by amendment published in Kerala Government Gazette No.6 dated 09.02.1988.
11. It is interesting to note that almost all the matters now covered by the various sections in the Code of 1908 were there in the Codes of 1859, 1877 and 1882.
12. A very interesting case is reported in Vol III of Madras High Court Reports (1866, 1867 and 1868) at page 4 (Judgment is dated 6.1.1866).
Sri. Raja Sitarama Krishna Rayadappa Ranga Raz Bahadur Garu, Zamindar of Bobbli v. Sri. Raja Sanyasi Razu Pedda Balliyara Simgulu Bahadur Garu, Zamindar of Salpur.
In this case a ZAMINDAR sought to recover Rs.60,000/- from another Zamindar because in a petition addressed to a District Munsiff, he called him what he was really without adding honorific “Garu”.
Justice Frere and Justice Holloway held that the omission of a mere courtsey cannot be taken to be equivalent to slandering or libelling a man and is not an actionable wrong.
Another erstwhile journal of repute is Citator, which had 6 Volumes.
The following jotting is extracted from Citator Vol. 3 (January to June 1908).
Mr. Robinson was a learned and eminent lawyer. He used to tell a story in which he acknowledged that the only witness who ever made him throw up his hands and leave the Court Room was an Irishman.
Mr. Robinson, at that time was counsel for one of the big railroads. A section hand had been killed by an express train and his widow had sued for damages. The railroad had a good case, but Mr. Robinson made the mistake of trying to turn the main witness inside out.
The witness in his quaint way had given a graphic description of the fatality, occasionally shedding tears and calling on the saints. Among other things, he swore positively the locomotive whistle was not sounded until after the whole train had passed over his departed friend. Then Mr. Robinson thought, he had him.
“See Mr. M.C. Ginnish said Mr. Robinson, you admit that the whistle blew."
“ Yes, sor; it blew, sor.”
“ Now, if that whistle sounded in time to give Michael warning, the fact would be in favor of the company, wouldn’t it ?”
“ Yes, sor, and Mike would be testifying here this day.” The jury giggled.
“ Never mind that. You were Mike’s friend, and you would like to help his widow, but just tell me now what earthly purpose there could be for engineer to blow that whistle after Mike had been struck ?”
“Presume that the whistle was for the next man on the track, sor. Mr, Robinson retired, and the widow got all she asked for."
(sor is seen, typed in “The Citator” instead of Sir)
Yet another decision worthy of note is reported in W.R. (Sutherland) Vol.26 Page 26 dated 20.03.1873, by 5 Judges Bench Privy Council.
Newab Mulka Jehan Sahiba and others v. Mahomed Ushkurree Khan and another.
In the absence of evidence to the contrary, the presumption of Mohammedan Law is that a girl attains puberty when she reaches the age of 9 years.
The Sunnies hold marriages by minors to be voidable only (i.e., complete, unless avoided) by dissent to be declared by the girl as soon as puberty is developed.
The Sheaits, on the other hand, hold that they are ‘fasoolee’ only, and incomplete until ratified by assent. The marriage of a minor is binding and irrevocable if contracted by the father or grandfather, but not when contracted by guardians of a lower degree, as the mother or grandmother, who can only contract a ‘fasoolee’ marriage - A ‘fasoolee’ marriage requires the assent of the minor, after attaining puberty and mature understanding, to perfect it; there being evidence either of express assent or of facts from which it may be presumed. Unless the assent of a girl after attaining puberty can be shown or presumed, the marriage is imperfect, and can create no rights or obligations.
The acknowledgement of the legitimacy of a daughter affords a strong presumption in favor of the right of her mother to inherit from her.
Legal Education in Kerala, Problems and Perspectives
By Lina Acca Mathew, Asst. Professor of Law, Government Law College, Ernakulam
16/03/2009
Legal Education in Kerala -- Problems and Perspectives
(Lina Acca Mathew, Lecturer, School of Legal Studies, CUSAT)
The legal education scenario in Kerala is in definite need of improvement. With the throwing open of the economy of our State to corporate powers from outside, the resultant new economic order and subsequent reversal of the old status quo prevalent in our State, it is the need of the hour that our legal profession wakes up to the necessity of providing global standards of legal services to the new clientele that are visiting our shores in need of top quality legal services. Reformation at the grassroots level has to begin, which is within the classroom itself. Hence the need to equip our classrooms with facilities for ensuring quality legal education.
The 184th Report of the Law Commission of India on The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956, December, 2002 contains a chapter on the Standards of Legal Education, Legal Skills and Values (Mac Crate Report) and New Globalization Challenges and Accreditation1. This paper dwells upon issues within and in furtherance to the general standards laid down in this Report for the entire gamut of the Indian legal educational system. However, it is confined specifically to the Kerala context.
To begin, some of the problems faced in our legal education system in Kerala are:
1. Absence of trained personnel to teach interdisciplinary subjects of relevance in the globalized context: LL.M. qualified hands alone are inadequate in imparting comprehensive knowledge to students in the areas of corporate laws, technology-based laws, environmental law etc. The services of trained personnel in other disciplines are needed for providing effective education to law students in these areas. This deficiency is most evident in the lack of qualified personnel to teach technical aspects of emerging technology-based laws like cyber law. As a result, law students in Kerala emerge with insufficient in-depth knowledge to comprehend and handle complicated issues in the globalized economy.
2. Almost total absence of the street law experience: The ultimate aim of law in a civilized society is to ensure that justice reaches all. Since this means that justice should prevail even in the streets- among the downtrodden of society- hence the terminology ‘street law’. The absence of socially relevant legal education results in suppression and ignoring the call of justice to act in various social situations. Lawyers graduate from law school with a motive of making money from the profession, and treat human rights law practice with contempt, as money cannot be made by advocating for the poor and marginalized. This has the net effect of denial of justice to the deprived sections of society, which goes against the ideals upheld and guaranteed by the Indian Constitution.
3. Lack of knowledge of legal process among our fresh law graduates: Most students come out of our ordinary law colleges in Kerala none too wiser as to how to the actual process of law. Years are spent merely acquiring book knowledge of substantive and procedural law. One month or so devoted to court practice, though incorporated into course structure so as to give a feel of everyday litigation to the student, is actually a meaningless exercise as the average student barely understands what is actually going on in court. Hence the fresh law graduate is at sea as to the various dimensions of the legal process. It is a fact that lawyers graduating from universities in our State find it hard to secure entry into out-of-State top advocacy and corporate legal firms as well as companies. This is because the legal profession in our State does not exhibit the professionalism shown by certain law institutes in the nearby States of Karnataka, Andhra Pradesh, Tamil Nadu and Maharashtra.
4. Poor quality of advocacy among majority of lawyers in the State: The art of advocacy is not taught in detail by our law teachers, and is hastily mentioned in a single course combining Legal Drafting, Conveyancing, Professional Ethics and Advocacy. Specialization in the art of drafting, conveyancing, cross examination, persuasive speaking etc are available only to a privileged few who are fortunate enough to practice under an experienced senior advocate. In countries like the UK, USA and Canada, the undergraduate curriculum itself provides a course on trial advocacy. Lack of precise knowledge of the art of advocacy results in haphazard handling of cases and deprivation of justice to the client. This has serious repercussions, as people lose faith in lawyers and in the whole justice-delivery system. Thus it hits back upon the very system of the rule of law in our country.
5. Inferior quality of teaching culture in our State: The lackadaisical culture prevalent among law teachers in teaching their students is a phenomenon prevalent in the law colleges of in our State. Most teachers give the excuse that students are not interested in learning, hence their “why bother” attitude. Often, however, it is only a minority of students who are wayward, while majority come to college with the intention to study itself. Another problem is the lack of research orientation among our teachers. This results in them not being up-to-date as to new propositions of case law as well as emerging streams of legal thought. The lack of quality teaching has resulted in inferior quality of graduating students in Kerala compared with those of other States in India.
My suggestions in this regard are that law institutes should coordinate with experts from other disciplines who have sound knowledge on the legal dimensions of their respective areas. For example, a chartered accountant will be able to teach students more effectively on current aspects of banking law, taxation laws and company law. Only a computer professional with definite knowledge on cyber law issues can make cyber law classes meaningful to the law student. A maritime expert to deal with aspects of maritime law; labour welfare officers
to the law student. A maritime expert to deal with aspects of maritime law; labour welfare officers to speak on their experiences in handling labour problems - which is of special relevance in training for Alternate Dispute Resolution2; human rights activist/lawyers to enunciate on everyday human rights and women’s rights violations are other examples to connect the letter of the law with the spirit behind the law and make legal education socially and globally relevant.
Sensitization of law students to human rights issues must take place from the first year of their undergraduate studies itself. A separate legal aid clinic is a must in each law college, with a teacher in charge of activities which have to take place on a weekly basis itself. Activities must include visiting a rural or slum area, listening to the grievances of the common man, giving advice as to the redressal of these grievances as well as taking steps to help ameliorate their problems. Enlisting the help of NGOs and other institutions/individuals involved in social work in order to identify problematic areas as well as for the resolution of problems will make such exercise more fruitful. Staging of street plays, involving with panchayat level legal aid/education camps, rendering legal education classes at local schools are other steps in this direction.
Promoting a culture whereby the student volunteers to work during his holidays for a lawyer/law firm/social work institution or NGO is a step to be taken to make our law students at par with those graduating from other States. Just as in the National Law Schools, law colleges are to create a special cell for Holiday Placements whereby a teacher coordinates with lawyers/law firms/NGOs and introduces and negotiates in placing every student volunteering to take up a holiday placement.
A serious look should be made into the legal curriculum prevalent in law schools of foreign countries where the undergraduate curriculum itself provides a course on evidence and trial advocacy. Experiences gained in both classroom and clinical settings teach students to develop and polish the skills trial lawyers require most: the ability to analyze and master a trial file; construct a case theory; organize, prepare, and deliver crisp examinations and speeches; make persuasive, interesting points in innovative ways; and take control of the courtroom. Thereby our educational system can incorporate techniques aimed at improving the quality of advocacy in the Kerala legal practice. Working lawyers and retired judges could be employed part-time as adjunct faculty to discuss the modus operandi of brilliant lawyers with law students. This will be in accordance with the recommendation laid down by the 184th Report of the Law Commission of India to recruit adjunct teachers from the Bar and the Bench, as “those with relevant experience are far better teachers on the whole than those whose knowledge is largely academic3.”
Learning the law will be more fruitful by improving the teaching technique employed in law colleges. Lectures are the most widely and traditionally used means of teaching as it is both learning and cost effective. But this does little to involve, excite or empower students. Other methods of group work, realclient clinics, use of video, simulations and demonstrations etc have to be used to make the learning process more meaningful. Making teachers more accountable to students, by providing for student assessment of teachers’ performance in their respective subject at the end of each term is another informal method employed in top law schools in India and abroad. This system acts as a check on the arbitrary and negligent attitudes of teachers, as well as provides an incentive to the teachers to improve their technique of delivery of information. Enforcing an academics-oriented culture whereby all law teachers need be lecturers as well as researchers is another method whereby superior performance by our teachers can be ensured.
A study published recently by the Griffith Law School reiterates the importance of group work4. This model of learning is called constructivism, in contrast to the traditional vicarious learning/self teaching model. This approach formed an integral part of the formal undergraduate curriculum at Griffith Law School since its establishment, conceived and first developed by Marlene Le Brun, a chief exponent of the Global Alliance for Justice Education. It has been successfully found out through this study that there are various academic, social and pragmatic advantages in group work. The results of this study are very relevant towards the Indian context where traditional teaching tools dominate. The study advised that group work should be integrated throughout the LL.B, curriculum and this should be given a relatively high weighting in assessment in order to justify and underline the importance of the considerable effort that students must put into group work.
To conclude, bringing in a justice-centered educational system takes place in two ways-one, in terms of substantive law, and the other, in terms of delivery of education.
In terms of substantive law, our legal education system in Kerala has already woken up to the call of justice for the common man by including subjects like human rights, women and the law, environmental law etc in its curriculum. What needs to be incorporated are full fledged legal-aid clinics, which provide means of fostering the system of street law as well as acting as venues of improving advocacy skills by providing real-client interactions for the future lawyers.
In terms of delivery, much has to be improved upon. Ensuring justice to the students needs to be done by bringing in adjunct teachers from the Bench and Bar, as well as trained personnel to teach the interdisciplinary subjects of global relevance, especially in the fields of technology-based and corporate laws. Improving the quality of teaching tools by making lectures more interesting; providing for informal teacher assessment at the end of each term; providing venues for socially responsible activities which also serve to mould lawyering skills among students, thus channelising their exuberance and energies towards constructive and creative activities - instead of allowing such energy to be utilized towards college strikes and antisocial behaviour which is the norm among law students in Kerala; designing compulsory courses on the constructivist model, as well as coordinating holiday placement programs for the students with lawyers, law firms, companies and social institutions so as to equip the law students of our State with tickets to a bright future in the legal profession, are the other steps which can be taken to ensure a justice-oriented education to our law students.
Foot Note:
1. Chapter V, 50-61, http://lawcommissionofindia.nic.in/reports/184threport-PartI.pdf
2. Chapter VI, 184th Report of the Law Commission of India on The Legal Education & Professional Training and Proposals for Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956, December, 2002, 62-68 http://lawcommissionofindia.nic.in/reports/184threport-Partl.pdf .
3. Chapter VII, 70 http://lawcommissionofindia.nic.in/reports/184threport-PartI.pdf.
4. Keyes and Burns, Group Learning in Law 357-382(2008) 17 Griffith LR
Compendium of Co Operative Law - 2008
By R. Muralidharan (Deputy Registrar (Planning & Legal), Co-operative Department, Puducherry
02/03/2009
COMPENDIUM OF CO-OPERATIVE LAW – 2008
(By R. Muralidharan, Deputy Registrar, Planning & Legal,
Co-operative Department, Puducherry)
The High Court of Kerala continues its onward march to contribute to the case law section on co-operative law in general and to co-operative law of Kerala in particular. As many as thirty nine decisions were reported in Kerala Law Times, more decisions would have been rendered by the Court, during 2008. What is more intriguing is in the interpretation and elucidation of law the High Court of Kerala continues to occupy its prime position. The decisions have far reaching impact and ramification. This article is a compendium of decisions of Kerala High Court co-operative law, reported in Kerala Law Times, during the year 2008, set out chapter-wise. Much of the decisions were on election and employees of co-operatives, twelve and fifteen respectively, to be specific. The connotation of Act and Rules denote the Kerala Co-operative Societies Act and Rules made thereunder.
On Membership
The law laid down in Thevan Ayyappan v. Kottapady East Service Co-operative Bank (2008 (3) KLT 42) is that a reading of Ss.16, 18 and 19 would show that membership depends upon the decision of a committee to admit a person as a member of the society. Such membership does not depend upon payments to the society in respect of membership. The use of words ‘applicant’ and ‘persons’ in S.16 contrasted with the use of the word ‘member’ in S.19 easily leads to this conclusion. R.20 prescribes the payments to acquire the rights of a member and S.19 inhibits exercise of rights of a member unless he has made such payments in respect of membership, as may be prescribed by the rules or the bye laws.
On Management
The question came up for consideration in Moideen v. Registrar of Co-operative Societies (2008 (2) KLT 184) is “what is the quorum for a meeting of a committee of a co-operative society in which Government has nominees ?” The only restriction on the nominated member is abstinence from participation in the discussion of any no-confidence motion and voting thereon and subject to such restriction, Government nominee are members of the committee. The quorum for a meeting of a committee in which S.31 applies, shall be such number of persons just above 50% of the total number of members, consisting of elected members in terms of S.28(1) and nominated members in terms of S.31(1). This is how the quorum rule contained in S.28(5) would apply to a meeting of an apex or a central society under the Act.
In terms of Explanation to S.33(1) “a tender of resignation” by a member of the committee shall have the effect of terminating his membership from the committee and hence provision in R.38(4) that resignation shall have effect only from date of its acceptance by committee is contrary to provisions of Act and their resignation had taken place the moment it was tendered by them to the President. The Court in Nataraja Gownder v. Registrar (2008 (2) KLT 335) held that R.38(4) to the extent it provides that resignation shall have effect only from date of its acceptance by committee is ultra vires of S.33(1) read with Explanation thereto and is void, as regards elected members. An elected member ceases to be in office by tendering his resignation to the President of the society.
What is the meaning of ‘month’ ‘six months’ and ‘consecutively’ appearing in S.33(1) came up for decision in Radhakrishnan v. Joint Registrar (2008 (2) KLT 385). The term “month” and “six months” in S.33(1) mean “month” or “six months” as per British calendar and “consecutively” is different from term “continuously”. Therefore, a regular period of a month understood as defined in General Clauses Act has to consecutively occur for six times to attain the status “consecutively for six months” enjoined by S.33(1). If a meeting is held in a month reckoned according to British calendar, meeting for next consecutive month can be held on any day in the next month and so calculating, if a meeting has been held In a particular month, vice of S.33 (1) would be attracted only on failure to hold a meeting on any of the days of the sixth consecutive month. Hence a meeting having been held on 7.4.2007, i.e. April, 2007, S.33(1) can be invoked only if no meeting was held till the end of October 2007, i.e. 31.10.2007.
As per bye laws of the second respondent society, board of directors shall consist of 14 members of whom 11 are elected members and two nominees of Rubber Board. Election notification was issued for electing 13 members including one member each from among members belonging to SC and ST communities and one woman representative. Same is challenged as contrary to bye laws. In Azeeskutty v. Returning Officer (2008 (4) KLT 165) it was held that dictate in S.28A overrules prescription in S.28(1A) regarding maximum number of members of committee. Hence in giving effect to reservation in terms of S.28A, in bench mark of 15 members preserved by R.28(1A) is exceeded, same will stand to be one within the permissible limits because the legislative intention and direction is to obtain representative of women and members of SC, ST and that goal has to be achieved notwithstanding anything else contained in the Act itself. No illegality was found with the provisions of the bye laws.
On Election
Question raised in Babu Andrews v. Thalassery Taluk Rubber & Agricultural Marketing Co-operative Society Ltd. (2008 (1) KLT 268) is whether returning officer appointed under R.35(3)(b) to conduct election is within authority to reschedule date publishing the final list of voters. Notification issued fixing the date of publication of final list of voters. Later returning officer, adjourned the date of publication of final list of voters to some other later date which is challenged. Court held that there is no legal impediment for returning officer, to publish final list of voters to any time, after considering of objections, if any, to draft list and it is within his power to adjourn date of publication of final list of eligible voters to any date later than the one stated in the notification declaring schedule of date in connection with election, but such publication shall be before 10 clear days of date fixed for poll.
The lis before the Division Bench in Subodhan v. State of Kerala (2008 (2) KLT 198) is when does an elected delegate of the primary society cease to be a member of a board of directors of an apex society on the basis of ‘default’ committed by the affiliated primary society is the question raised in the Writ Appeal. Court held that the moment a primary society is in default, the delegate from that society will cease to be a member of the apex society and that there is no requirement of issuing notice demanding payment of defaulting amount and allowing one month’s time. A provision similar to proviso to R. 44(2) is absent in R.46 and there is an automatic ceasure from membership of the committee for the delegate of that primary society. Reliance placed by the appellant on the decisions of this Court in Thommen Ittichenyanthu v. State of Kerala (1978 KLT 887), Rasheed v. State of Kerala (1988 (1) KLT 190) and Gangadharan v. Joint Registrar (1990 (2) KLT SN 13 (C.No.18) where in it was held that date of issuance of notice is an important criteria to decide disqualification would not apply to this case as these decisions relate to disqualification and membership of a committee under R.44.
The main challenge before the Division Bench in Philip v. State of Kerala (2008 (2) KLT 555) is to the exclusion of other types of co-operative societies other than primary agricultural credit societies and urban co-operative banks from voting rights or participating in the administration of District Co-operative Bank. Such exclusion of societies belonging to categories other than the two, was claimed to be arbitrary and discriminatory and violative of Art.14 relying on Alappuzha District Co-operative Bank v. State of Kerala (2003 (1) KLT 297). Held, there is a clear intelligible differentia between the societies retained as members of the DCB and those excluded. The view that the said classification has rational nexus with the orderly development of co-operative movement, which is the object of the Act cannot be said to irrational. The decision reported in 2003 (1) KLT 297 (supra) stands overruled.
The question in Ajeer v. Returning Officer (2008 (2) KLT 600) was whether administrators appointed under S.33 were within authority to allot additional shares to members, after declaration of election to the society since the bye laws provides that holding of not less than Rs.10,000 share capital in the society as a qualification for being elected to its board from among ordinary share holders. According to the petitioners, such allotment of shares would be contrary to R.26, if such transfer is made within sixty days prior to date of election. Additional shares were allotted before date fixed for filing nominations. Court held that acquisition of qualification of the immediate bench mark in the matter of holding share capital for being nominated can be satisfied at any time before submission of nomination paper and that prohibition in R.26 does not extent to transfer of shares among the members.
Returning officer handing over notification under R.35(3)(a) to President for dispatch and it was dispatched only on the date of nomination. When such an act was impugned in Thomas v. Thiruvananthapuram Jilla Unemployees’ Welfare Co-operative Society (2008 (2) KLT 743), Court held that it is not proper as R.35 does not include any authority for returning officer to authorize President or Secretary to dispatch the notifications which are issued by the returning officer.
Rr.27(2) & 44(1) - Dual membership is not a ground of disqualification from contesting in the election or to become a member of the committee and there is no provision which disqualifies a person on the ground of dual membership from being a candidate for election to the committee of one of those societies unless he is a member of the committee of another society of same type. This decision was reported in Ambatt Asokan v. Oochira Service Co-operative Bank Ltd (2008 (3) KLT 645).
The concept of the period of “at least 60 days” in R.35A(1) cannot be put in any straight formula. It has to be understood and applied in the context in which its application is called for, on the facts and in the circumstances of a given case, vide Abu v. State Co-operative Election Commission (2008 (3) KLT SN 56 (C.No.68). There is no specific power conferred on the State Co-operative Election Commission or any other authority on whose permission or orders would depend the date of conduct of the election. The State Co-operative Election Commission is duty bound to appoint an electoral officer to give effect to the decision of the committee fixing the date, time and place for the conduct of election to the new committee.
A member challenged the scheduling of election to that society on the ground that it violated R.35(3)(a)(iii) in Bhaskaran Pillai v. Nediyavila Milk Producers Co-operative Society Ltd. (2008 (4) KLT 271). It was contended that sufficient time for filing objections to draft voters list as contemplated in that rule and individual notice to him to do so were not granted. Cardinal questions before the Court were:
(i) Whether individual notice to members of a society inviting objections to draft voters list is necessary?
(ii) Whether period of submission of nominations under R.35(3)(a)(iii) can be taken as the period during which objections to draft voters list are to be filed?
(c) Whether “within three days of publication” occurring in R.35(3)(b) would take in ‘three clear days” as the time for filing objections to draft voters list?
(d) Interpretation of “not less than 15 days prior to” and “within three days of occurring in R.35(3)(b).
Court answered the three questions above in negative. Regarding the fourth question, it was declared that “not less than 15 days prior to” and “within three days of occurring in R.35(3)(b) do not have the same meaning as different words, phrases and expressions in the same sentence are not intended to convey the same meaning.
In cases of societies where there is no delimitation of area of operation into wards or regions on geographical basis, Col.1(f) in Form No.36 is superfluous and illusory and will be of no consequence because there is no particular region or ward which could be represented. Any failure to fill it will be of no consequence. This decision is reported in Francis Dominic v. State Co-operative Election Commission (2008 (4) KLT 701).
Nominee of a society will be disqualified for election to the society in which he is a delegate, if at the time of submission of his nomination his society is in default to the society in which he is a delegate under R.46(e). The G.O exempts all primary agricultural credit societies from the provisions of R.46(e) for a period of one year from the date of that notification is not discriminatory and is valid as held in Purushothaman Nair v. State of Kerala (2008 (4) KLT 879).
Petitioner challenges rejection of his nomination in Soman v. Electoral Officer (2008 (4) KLT 984). He did not make the declaration to be made by the candidate, though he states that he has made a declaration to be made by a candidate who is contesting to the seat reserved for SC/ST and contends that such declaration is sufficient and would be one in lieu of declaration of candidate as required by Form 36 issued in terms of R.35A (6)(a). Held, that declaration that he is qualified to contest for election is seat reserved for SC/ST candidate is insufficient to be read as a declaration that he has not incurred any disqualification from being a candidate. Principle of substantial compliance cannot be imported to sustain a nomination with no such declaration.
Petitioner’s nomination for election to the committee of the co-operative bank was rejected on the ground that he was in default to the bank as on the date of submission of nomination. Same is challenged in Rajasekharan Nair v. Returning Officer (2008 (4) KLT 994) on the ground that no notice was given to the petitioner calling upon him to pay any amount due or payable to the bank. Held, each of the clauses under sub-r.(2) is followed by a proviso and therefore it has to be held that the proviso at the foot of R.44(2)(c) applies only to that clause and cannot be imported into R.44(1)(c)(i) which prescribed ineligibility for being elected. Proviso at the foot of R.44(2)(c) is wholly irrelevant and inapplicable to the eligibility criteria fixed in R.44(1)(c)(i) for a member of a society to be eligible for being elected or appointed as a member of the committee of that society.
On Disputes
A dispute arose between the employee and the co-operative society on account of his dismissal from service. Bank raised a preliminary objection that dismissal is not a matter that would fall under S.69(1) and no question of reinstatement in service can be considered by Arbitrator. Order turning down the plea is challenged in Edava Service Co-operative Bank Ltd. v. Co-operative Arbitration Court (2008 (3) KLT 780). It was contended that specific inclusion of the words “touching their promotion and inter se seniority” in S.69(2)(d) include only dispute in connection with employment excluding appointment, dismissal etc. Held that inclusion of words “including their promotion and inter se seniority” as the last limb of S.69(2)(d) only clarifies that notwithstanding any vagueness that may be pointed out in that regard in S.69(1)(c), such disputes also fall within purview of that provision.
When there is a dispute regarding the credibility of documentary evidence tendered by one party, it being challenged as fabricated, the adjudicator has to decide whether the aid of an expert is required to reach at the conclusion which is just and in accordance with law. In deciding a dispute under S.69, the arbitrator appointed under S.70 has the power to entertain an application to bring in expert evidence, including by sending documents to obtain opinion of experts. Also, the evidentiary value of such opinion, if obtained, is also a matter to be evaluated by the arbitrator, who has to decide on the issue by himself, may be, with the aid of the expert opinion. While deciding so in Njanamuthan v. Thiruvananthapuram District Co-operative Bank Ltd. (2008 (3) KLT 1018), profitable reference was made to the judgments of the Court in Ebrahim Ismail Kunju v. Phasila Beevi (1991 (1) KLT 861), Thankam R. Pillai v. Arbitrator (1996 (1) KLT 225) and Paul v. Asst. Registrar (1998 (2) KLT 449).
On Appeal, Revision and Review
In Karumbi v. Thalayolaparambu Farmers Co-operative Bank (2008 (1) KLT SN 20 (C.No.24), it was held that under S.84, Secretary of Co-operative Tribunal cannot refuse to receive a revision petition on the ground that it is time barred. This is not a matter on which the Secretary of the Tribunal has to decide, because even if the case is to be dismissed as time barred, it is within the exclusive domain of the functions of the Tribunal. Hence, on production of copy of the judgment, the revision petition will be placed before the Tribunal for orders and the petitioner, through counsel, will be extended an opportunity of being heard before a final decision is taken in the matter by the Tribunal.
An arbitration award was challenged before Co-operative Tribunal. Tribunal set aside the award holding that it was not one touching the business of the society but granted 30 days time to plaintiff to approach Civil Court by filing a suit. Same is challenged in Lakshmanan v. Kanhirode Weavers Co-operative (P & S) Society Ltd. (2008 (2) KLT 234). Court held that the period of limitation for suits are prescribed in Limitation Act. Such time limit cannot be extended or curbed by Tribunal. It is not within the domain of the Tribunal to authorize the institution of a civil suit within any period.
Whether S.5 of the Limitation Act can be invoked for condoning delay in filing appeal under S.83(1) and absence of an order condoning delay will vitiate the proceedings came up for consideration in Calicut City Service Co-operative Bank Ltd. v. State of Kerala (2008 (3) KLT 1011). Held, there is no provision in S.83(1) to condone delay and Government not being a Court, S.5 of the Limitation Act does not apply. There has to be a formal order on the files condoning the delay, if it has power to do so.
On Employees of Co-operatives
Doubting the correctness of the decision in Public Service Commission v. Ramesan (2005 (4) KLT 466), the case was referred to Full Bench in Sathydevan v. Public Service Commission (2008 (1) KLT 289 (F.B.)). The petitioners who are employees of primary co-operative societies applied for the post of clerk/cashier in various district co-operative banks in the in-service quota. The qualification prescribed is graduation with Diploma in Co-operation. Contention is that the qualification is contrary to Rules and the only qualification required is S.S.L.C. with J.D.C. with three years experience for the posts.
S.80 authorizes Government, in consultation with the State Co-operative Union, to make rules regulating the qualification, either prospectiveiy or retrospectively and other conditions etc., but such rules can be framed only in consultation with the State Co-operative Union. Admittedly no such consultation was done. Apart from the above, power to make rule under S.80 is only with the Government and not with the Registrar or General Manager of Societies. Rules made under S.80 are subservient to those provided for in R.186. Registrar cannot make model rules or co-operative societies cannot make rules on advice of the Registrar which are inconsistent with the statutory rules. Registrar or district co-operative societies cannot pass rules against the provisions of the Act and Rules.
It is well settled law that a delegated power can be conferred by the delegate upon another. Applicable maxim is “Delegata potestas non potest delegari”, means a delegated power cannot be delegated. Therefore, model rule suggested by the Registrar and allegedly adopted by societies is not a valid rule made under S.80, which can be famed only by Government. Hence, considering R.186, the Full Bench is of the opinion that petitioners who had qualification of S.S.L.C, with J.D.C. and three years continuous experience are entitled to write the test under the 50% quota reserve for in-service candidates if they are otherwise eligible and rejection of their candidature for lack of qualification cannot be sustained. The Full Bench explained and distinguished the decision made in Ramesan’s (supra) case.
The Full Bench quoted with advantage the following decisions:
(a) In Valsala Devi v. Leela Bhai (2002 (3) KLT SN 18 (C.No.26), a Division Bench held that the qualification at the time of recruitment has to be considered.
(b) Rule made under S.80 is subservient to those provided for in R.186, as held in Ali v. State of Kerala (2006 (1) KLT 205).
(c) In Abdul Rasheed v. Kerala Public Service Commission (2002 (3) KLT 405) and Public Service Commission v. Abdul Rasheed (2007 (3) KLT 881), it was held that Public Service Commission has no power to go beyond qualification prescribed by the rule.
The creation of posts is a matter to be done in public interest, after job assessment, volume of work etc., and not to regularize the illegal appointments already made. If appointment is illegal, the same cannot be validated by the process of regularization or confirmation or creating posts. Ratification or regularization is possible only if one has acted within his authority, an illegal act cannot be ratified is the dictum of the Division Bench in Kerala State Wharehousing Corporation v. Devadasan (2008 (1) KLT SN 17 (C.No.21)).
As per G.O. (P) 44/1995 dated 14.3.1995, retiring pension shall be granted to an employee of a co-operative society who retired voluntarily after completing minimum of 20 years of qualifying service. Thereafter on 7.3.2001, earlier Government Order was amended to include a further condition that they should have attained the age of 50 years also. Amendment cannot apply to those who were granted voluntary retirement before 7.3.2001, as held in Krishna Kumar v. Kerala State Co-operative Employees’ Pension Board (2008 (2) KLT 230).
Petitioner was placed under suspension. The enquiry was not contemplated for a long time and hence seeks that suspension be revoked. The power to keep an employee under suspension in terms of R.198(6) has to be understood in such a manner that it stands controlled by the need and necessity that may be, on the facts, situation and circumstances of each case. Otherwise, the exercise of that power, merely by reference to the Rule, would erode justice as held in Leelamma v. Kerala State Co-operative Rubber Marketing Federation (2008 (2) KLT 608).
The Government exempted the Bank from the provisions of item (ii) of R.186(1) for the limited purpose of enabling the bank to appoint the second respondent as Junior Clerk subject to the condition that he shall successfully complete the J.D.C. course within two years from date of joining duty. However, he did not complete the J.D.C. course within the prescribed time. The Joint Registrar enlarged the time fixed to acquire the qualification. Same is challenged in Dilip v. Varapuzha Service Co-operative Bank (2008 (2) KLT 643). Court held that the power to grant exemption from rules is with the Government and power to enlarge the prescribed time can be exercised only by Government and not by Registrar.
R.188(A) stands with an explanation that for the purpose of that rule, “dependent” means “any member of the family of a deceased employee of the society; has no independent means of livelihood and who was dependent on the earnings of the deceased employee at the time of his/her death for his/her maintenance” and “family” means and includes the relative of the deceased employee in the order of priority indicated in that explanation. The daughter-in-law is not a relative going by the list of relatives included in terms of family going by that explanation is the decision reported in Aided Primary Teachers Co-operative Society Ltd. v Joint Registrar (2008 (3) KLT 755).
S.80(4) - Reservation for candidates belonging to SC/ST has to be on the basis of number of posts and not vacancies, vide Anandavally v. Alleppey District Co-operative Bank (2008 (3) KLT 1020).
Whether the benefit of reservation of 50% quota for employees of co-operative societies is confined to employees of primary agricultural credit societies and urban co-operative banks which are members of apex/central society and employees of nominal and associate banks are excluded. Held, nominal and associate members are also members for the purpose of the Act and Rules and notwithstanding Ordinance 62/07, benefit of reservation in terms of R.187 is available to employees of all member societies, including nominal and associate members. To reach the above decision in Vinod Kumar v. State of Kerala (2008 (4) KLT 49) the Court relied on a decision of the Division Bench in Surendran v. Kerala Public Service Commission (2002 (1) KLT 673).
Selection of junior clerks took place, rank list expired. Complaints arose that the selection overlooked communal reservation. It was contended that already there is 10% staff in the bank who belong to SC/ST community. Held in Beena Kumari v. Joint Registrar of Co-operative Societies (2008 (4) KLT 110), (i) Expiry of rank list is not a bar for a claim of reservation as appointments made violating reservation policy is illegal; (ii) Reservation policy has to be followed afresh for each recruitment; (iii) Availability of staff from SC/ST community is no reason to deny reservation for fresh recruitment.
In Thiruvalla East Co-operative Bank Ltd. v. Deputy Registrar (2008 (4) KLT 220), it was held that Act and Rules do not provide for invalidation of list made by Board, merely on the ground that committee of a society had not conducted the interview within the time limit fixed in R.182(4)(v) and that exceptional situations could be a ground on which conduct of interview beyond period of two months could be justified.
In Deepthy Vijayakumar v. Joint Registrar (2008 (4) KLT 321) the issue before the Division Bench relates to appointment of junior clerks in a co-operative bank. It was tainted with procedural irregularities and favouritism granted to certain candidates by granting higher marks in the interview and lowest marks to the written test rank holders and appointing more candidates than that is notified. Setting aside the entire selection, it was held that if in a public appointment the selection is fraudulent and deceitful, entire selection has to be set aside, individual innocence has no place in it. Vacancies that arise after a notification for a public appointment cannot be filled up without a fresh notification or without making necessary amendments. It violates the equality principle enshrined in Arts.14 and 16(1) of the Constitution.
An employee of a co-operative bank was convicted of a criminal offence. Later he was suspended by the President of the society in anticipation of disciplinary proceedings. It was challenged on the ground that in R.138(6) it is only the committee of the society who has the power to suspend such an employee. The bye-laws empowers the President to have a general control over the affairs of the bank. Such power of the President includes the power to make an order suspending an employee from the society in anticipation of ratification by the competent authority, namely the committee, of which the President is essentially a member, so held in Prasanth Maroli v. Kannur Primary Co-operative Agricultural & Rural Development Bank Ltd. (2008 (4) KLT 451).
In Josekutty v. Public Service Commission (2008 (4) KLT 546) it was held that B.Com. degree holder with co-operation as a subsidiary subject is not qualified to be appointed as Junior Clerk. R.7(1)(a) does not govern field of direct recruitment but only to other modes of recruitment.
State Co-operative Employees Pension Board was delaying payment of family-pension to member on the ground that contribution from employer co-operative society has not been received up-to-date towards pension fund. Held in Thulasi Devi v. Kerala State Co-operative Employees Pension Board (2008 (4) KLT 647), inability to pay is no answer in a matter relating to pension and non-payment of contribution by an employer is not a ground on which Pension Board can delay payment of pension.
The power to fix or re-fix a pay which carried with it, the power to rectify an anomaly that has crept into the fixation or re-fixation of pay, primarily rests with employer society. Such power may be available with an authority exercising powers of Registrar or superior authority in Government. It does not trickle down to officers of Pension Fund by virtue of Cl.27(3). This dictum is found in Kunju v. Kottayam Co-operative Agricultural & Rural Development Bank Ltd. (2008 (4) KLT 682).
On Miscellaneous
The issue raised in Ernad Primary Co-operative Agricultural & Rural Development Bank Ltd. v. State of Kerala (2008 (1) KLT 132) is as to whether the sale certificates issued under the Kerala Cooperative (Agricultural and Rural Development Banks) Act, 1984, for short “the CARD Act” are exempted from levy of stamp duty under the provisions of the Kerala Stamp Act. When exemption from stamp duty is claimed on the basis of awards or orders of the Registrar or Arbitrators, such decisions which fall under the clause of the notification are only those which are issued under the provisions of the Co-operative Societies Act and not under CARD Act.
A plain reading of sub-ss.(1) and (2) of S.37 would show that what is contemplated in an agreement between the creditor and the debtor, whereby the debtor agrees to the creditor requesting for deduction from salary in case of default in repayment of loan. Once such an agreement is executed between the creditor and the debtor, S.37(2) obliges the employer of the debtor to act in terms of any request made by the creditor, provided the request falls on the basis of the agreement under S.37(1), Once that is done, the responsibility to make deduction in terms of S.37(2) does not depend upon the violation of the employer, it is a statutory obligation, so held in Vilappil Service Co-operative Bank v. Commissioner of Police (2008 (2) KLT SN 32 (C.No.39)).
National Trust Act, 1999 - A legislation for the Mentally Retarded
By C.S. Ramachandran, Advocate, Thrissur
23/02/2009
NATIONAL TRUST ACT, 1999 – A LEGISLATION FOR THE
MENTALLY RETARDED
(By C.S. Ramachandran, Advocate, Trichur)
A direction is seen given by the Hon’ble High Court to the Sate Government and the Union of India, in its Judgment, Narayanankutty Menon v. State of Kerala (2009 (1) KLT 183), for providing adjudicatory mechanisms, to comprehend the mentally retarded persons also, within the provisions of the Mental Health Act, 1987. It appears that the Hon’ble Court had expressed such desire, either because of not bringing to its notice “Act 44 of 1999” statute, or because of the insufficiency of quasi-judicial adjudicatory procedures prescribed under the said Act.
“The National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation, Multiple Disabilities Act, 1999 (Act 44 of 1999)”, was enacted by the Parliament and the same was implemented on 30/12/1999. Accordingly, a statutory body under the Ministry of Social Justice and Empowerment, Government of India was set up, namely “The National Trust” and the basic objects of the said body are : (a) to enable and empower persons with disability to live as independently and as fully as possible within and as close to the community to which they belong, (b) to strengthen facilities to provide support to persons with disability to live within their own families, (c) to extend support to registered organizations to provide need based services during period of crisis in the family of persons with disability, (d) to deal with problems of persons with disability who do not have family support, (e) to promote measures for the care and protection of persons with disability in the event of death of their parent or guardian, (f) to evolve procedures for the appointment of guardians and trustees for persons with such disability requiring such protection, (g) to facilitate the realization of equal opportunities, protection of rights and full participation of persons with disability; and, (h) to do any other act which is incidental to the aforesaid objects.
With regard to the appointment of guardians for the persons with disabilities under the Act, Local Level Committees (LLC) are constituted at District level, under S.13 of the above mentioned Act. The said LLC, constituted for a period of 3 years, consists of (i) a Civil Servant, not below the rank of a District Magistrate, (ii) a representative of a registered organization and (iii) a person with disability as defined in S.2 Cl. (t) of the Persons with Disabilities Act, 1995. As per subsequent standing order issued by the National Trust on October 16, 2007, three more persons, namely, the District Social Welfare/District Disabled Welfare Officer, a Civil Surgeon and a Senior Lawyer, also were to be included as non-statutory co-opted members, for the effective functioning of the LLC. Necessary provisions are made in the said Act and the Rules made thereunder, for appointing guardians, their duties, procedure for application, removal of guardians, etc.
In view of a separate and independent statute for the class of disabled persons as stated in the National Trust Act, it will not be necessary to amend the Mental Health Act, 1987. There was an alternative remedy in the case cited above, for appointing a guardian under a specific statute, and hence there was no need for the parties to rush to the Hon’ble High Court, by invoking the Writ jurisdiction under Art.226 of the Constitution. The awareness of this special statute is very low amongst the public. But it is now improving due to the fact that several Guardian applications for persons with mental retardation, have been dismissed by certain mofussil Courts. Apparently it appears that the statute under reference was not considered by the Court, since the same was not brought to the notice of the Hon’ble High Court, by the Government Pleader.