Free Surrender under Panchayath Raj Act and Municipalities Act,
Read with Kerala Relinquishment Act of 1958 --
A Critical Study with Reference to Case Law

(By P.B. Menon, Advocate, Palakkad)

At the outset, what I would like to emphasis by this Article is as to whether free surrender referred to in the Panchayat Raj Act and Municipalities Act amounts to dedication in its real sense.

What is meant by dedication and what is the quintessence of that expression is well settled with reference to very old decisions which still hold the field. See 2011 (1) KLT SN 17 (C.No.19) (SC) approves (1903) 13 MLJ 364 and AIR 1927 Mad.676 (F.B.) overruling 1944 Nag 33.(1888) ILR 12 Bom.247 also lays down the same position. Sri B.K.Mukerjee on Hindu Law of Religious and Charitable Trusts (5th Edn by Sri A.K.Sen) is quoted with approval and is referred to in (2004 (8) KLT OnLine 1246 (SC) = (2005) 1 SCC 457).

In all these cases, what is stated is that when a property is dedicated for a particular purpose, the property itself, upon which is impressed, is raised to the category of a juristic person, so that the property which is dedicated would vest in the person to created. B.K.Mukerjee’s commentary says that the said property belongs to nobody. Being dedicated to general public use of such property itself is raised to the category of a juristic person. But when such dedication is in favour of an idol or religious trust the same vests with it. One can say it is owned by idol or such trust. It is said that when you say God’s property it is only a figurative expression (See AIR 1968 Cal.551).

When we come to the expression “free transfer” in the above Acts the view taken by the courts to the effect that such free surrender is dedication is hardly acceptable. The free surrender is to the Panchayat or Municipality or Corporation concerned for formation of a road or widening the road or renovation of a tank etc., meant for the use of the general public. The land so surrendered is to the Panchayat or Municipality or Corporation who is the owner of the same after such free surrender and not the general public for whose use it is so surrendered. The concerned authority enters the same in their property register and spent money to renovate the same or to form the road and maintain them regularly, as such authority are the owners after free surrender. Then how could such free surrender be considered as dedication. It is nothing but a free gift to which T.P. Act and Registration will apply. True Rule 5 made in 2005 makes provision for free surrender to Grama Panchayath, such provision Municipality Act also. But will that improve the situation; can those rules prevail over T.P. Act and Registration Act.

Before I come to the decision of our High Court, let me refer to the Kerala Land Relinquishment Act, 1958, which generally deals with such free surrender by concerned owner of property to the Government. Can that Act apply to such transaction of free surrender to Grama Panchayath or Municipality certainty not, for as between these Acts, Kerala Relinquishment Act is a general Act, whereas the other two are special Arts relating to surrender to Panchayat or Municipality specifically.

Now see the Kerala decisions which are noted below, about which I have no further comments.

This is a case of free surrender to Municipality u/S.214.

1990 (2) KLT 721 which holds the correct view

But see 2012 (4) KLT 919; 2013 (1) KLT 846 (D.B.); 2021 (4) KLT 318 (D.B.); 2021 (6) KLT 853.

Environmental Rights are Wider in Dimensions than Human Rights

(By P. Leelakrishnan, Professor Emeritus, Cochin University School of Law)

HIistory is replete with struggles and even with gruesome battles for recognition and protection of human rights. Fostered by the ideals of democracy and freedom, human rights found expression in the Universal Declaration of Human Rights (UDHR) 1948 and in later Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. Many of these rights are now incorporated in the Constitution of India. Besides those declared in the Fundamental Rights, humane working conditions, raising the level of nutrition and public health and special care for development of the weaker sections of people are concepts germane to protection of environment explicitly mentioned in the directive principles. The judicial Interpretations will illustrate, in different contexts, how these rights are assimilated for protection and improvement of the environment. A wide spectrum of human rights is thus intertwined with the needs for a healthy environment.

Environmental rights

Characterized as rights to a healthy environment, environmental rights remained dormant throughout the centuries of man’s relationship with nature. They assumed significance with the UN conference on the human environment at Stockholm in 1972 when the world began to realize that the planet earth was being degraded continually after the Industrial Revolution. Creating universal awareness and emphasizing that the natural and man-made environments are essential to the enjoyment of the basic human rights, even to the right to life[1] the conference addressed the nations to exert common efforts for the preservation and improvement of the human environment.[2]

Indisputably, development helps fashioning human protection and progress. The question is how to reconcile values of ‘development’ with those of ‘environment’. In sum, how can development efforts be environment-friendly? This dilemma worried the world for a few years after Stockholm. In 1987, the World Commission on Environment and Development (WCED), popularly known as the Brundtland Commission, made a comprehensive study and proposed a paradigm of ‘sustainable development’ that reconciles and allows economic growth without destroying the base of available resources and livelihood. Natural resources must be used wisely; production integrated with resource conservation and enhancement. Thus, WCED defined sustainable development as one that ‘seeks to meet the aspirations of the people of the present generation without compromising the ability to meet those of the future’[3]. Sustainable development reinforces the view that all human beings have fundamental rights to environment adequate for their health and well-being. The United Nations Conference on Environment and Development at Rio in 1992 approved these strategies and declared that human beings, the centre of concerns for sustainable development, are entitled to a healthy and productive life in harmony with nature.[4]

The Indian legislation

Though late, India responded to the Stockholm message by enacting the Environment Protection Act 1986 (EPA).[5] The definition of environment is quite eloquent. It says ‘environment includes water, air and land and the inter­relationship which exits among and between water, air and land, and human beings, other living creatures, plants, micro-organisms and property’[6]. It becomes so clear that without the basic rights to clean water, air, and land and without the co-existence with other animate and inanimate things, human rights can never be realised. At this level, obviously, environmental rights find a wider range of significance than human rights.

The judicial approach to environmental problems

A year after Stockholm, the Supreme Court of India had to meet a challenge that a legislation vesting the State with the ownership of private forest would lead to deforestation resulting in eco-imbalance, especially soil erosion and silting up of streams and rivers. Turning down the plea, the Supreme Court upheld the law as its intention was to rehabilitate the landless labourers, tribal people, and other proletarian groups.[7]

In 1978, it was a remarkable turning point in the philosophy of fundamental rights in the Constitution. Setting aside outmoded precedents, the Supreme Court revisited the provisions[8] in Article 21 as generating procedural justice and due process.[9] This was the finest hour in the ethos of interpretations of fundamental rights as the court subsequently read many substantive rights[10] into the right-to-live concept embodied in Article 21. Initially, the Apex Court was chary to extend this judicial renovation to environmental rights forthrightly, but the High Courts displayed an active stance.[11]

Nonetheless, convinced of the absolute need for the protecting environmental health, the Apex Court took to a different route and revived the old strategy[12] of applying the concept of nuisance with human rights flavour.[13] Such an instance arose when an executive magistrate, applying the law in Section 133 of the Code of Criminal Procedure, had demanded a municipality to construct drainage and public conveniences within a limited period of six months. Declaring decency and dignity as non-negotiable facets of human rights[14] the Apex Court enthusiastically supported the order to save the residents from the environmental hazards of open drains and public places used for primary needs.[15] During the 1980s, in one case,[16] the Apex Court could have applied the right to life doctrine to deal with indiscriminate mining that hampered the ecology of Mussoorie, a popular holiday destination. On the other hand, the Court had cautious steps as they applied the concept of ‘sustainable development’ and waited for phasing out the mining operations while the workers were rehabilitated, and the miners got work elsewhere. In the group of MC Mehta cases[17] relating to pollution, the Court was not enthusiastic to apply the new jurisprudence of Article 21, although in one case[18] they formulated the doctrine of absolute liability, free from clutches of the common law exceptions, for the harm caused by inherently dangerous and hazardous industry.

The scenario changes

The next decade witnessed active position on environmental rights.[19] It was in Bangalore Medical Trust v. B.S.Muddappa,[20] the Supreme Court struck down a scheme to establish a private hospital in an open space. Being the lung space for urban sprawl, open space is an essential ingredient of area development schemes. In the court’s view, the constitutional mandate of individual freedom and dignity is a guarantee for attainment of a quality of life which a healthy and clean environment demands.[21] Remarkably, within five years, in Consumer Education and Research Centre v. Union of India,[22] the Court extended the ‘right to life’ concept to social security and to humane conditions of work and health. In extraordinary situations like those in asbestos industry, workmen may fall victim to the occupational disease of asbestosis. It may sometime happen that the symptoms are diagnosed only after retirement. Manifestly, in such cases, the court held, the right to medical care and social security should continue even after retirement.[23]

In Indian Council for Enviro-Legal Action v. Union of India,[24] the Apex Court had to deal with a terrible incident when a few industries, even in a trial run to produce H-acid, flung the people, children, cattle, trees, and streams in the village into a siege of pollution. The damage to the biotic and non-biotic objects, caused by the poisonous wastes, was huge and thus, left the whole eco­system of in peril. Appallingly, without taking up immediate corrective measures, the industries literally ran away leaving behind the sludge and muckin the operation. Further, the industries made deliberate and vicious efforts not to pay compensation[25] and protracted proceedings for a very long period of fifteen years. In 2011, holding these intolerable attempts as instances of unjust enrichment, the Supreme Court directed the ‘rogue’ industries, as they were called, to pay compound interest along with the unpaid compensation.[26]

Could it be justified to locate red category of polluting industries, listed as such by the Ministry of Environment, Forests and Climate Change, within the prohibited zone of ten kilometres from the lakes supplying drinking water to the neighbouring cities? Initially, the State Government imposed a ban but later removed it to the disapprobation of the State Pollution Control Board who took the matter further. The appellate authority and the High Court disagreed with board. Seized of the matter, the Apex Court was in a real dilemma.[27] Candidly admitting their limitations to analyse the technical problems involved, the Court referred the issue to various experts and expert bodies. Basing on their opinions the Court disapproved the siting of the industries in the zone. In the context of emerging human rights and environmental jurisprudence alike, and the inability and incompetence of courts to decipher technicalities, the Supreme Court laid emphasis on the need for environmental tribunals[28]. Significantly, court held that that the concern for both environment and human rights is to be traced from Article 21 dealing with fundamental rights to life and liberty.[29] While the environment concerns ‘life’, human rights aspects concern ‘liberty’.

Conclusion

The trend of widening the scope of environmental rights is fairly reflected in the judicial approach on rehabilitation of those affected by development projects. Leaving aside other controversies, the Apex Court’s view in Narmada was that suitable rehabilitation with facilities better than those in their original habitat would not result in violation of the fundamental rights of the displaced humans.[30] Positively speaking, since they lose their exclusive rights in their lands for the benefit of others, the project affected people (PAPs) are entitled to a fundamental right to rehabilitation with facilities, if not better, equal to those of their original habitat. However, in many cases, rehabilitation proceedings go berserk with several disruptions and logjams. An agonising spectacle is often seen with the PAPs, the living martyrs of development but helpless refugees from their own home, often wandering around and screaming for rehabilitation. Provision for rendering suitable rehabilitation or fair compensation before the commencement of major development activities is the desideratum and the only plausible remedy to solve the dilemma. Those who lose the rights to their habitat and suffer the woes of development should get better and timely treatment before others go to reap the benefits.

The right-to-live concept, coupled with the eco-provisions of the Constitution, adds strength and vigour to the environmental rights that take in several species of human rights. The Constitution[31] points to the duty of every citizen of India ‘to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living resources’ and thus, propounds an eco-centric philosophy that recognizes the intrinsic values of other living and non-living beings, like humans, with distinct roles to play in the ecosystem. Essentially, to protect and improve the environment, as often held by the courts, there is a duty to conserve the rare plant species like red sandalwood,[32] to preserve green buffer zones for water bodies while an industrial project is established in the vicinity[33] and to behave in a humane and compassionate manner with ‘other living beings’ such as the wild elephants[34] passing through their natural corridors, Asiatic buffaloes[35] wandering in Chandigarh forests and the birds 36 with freedom to fly up into the blue sky.

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Foot Note:-

1. Declaration of the UN Conference on the Human Environment, paragraph 1.

2. Ibid.Paragraph 7.

3. Ibid, p.40.

4. Declaration of UN Conference On Environment and Development, Principle 1.

5. EPA is the country’s basic law at present with an abundance of delegated legislation as well as with a plethora of powers delegated from the Union Government through the State Governments down to the grass root local self-governments.

6. Section 2(a), EPA.

7. State of Kerala v. The Gwalior Rayon Silk Manufacturing (Wvg) Co Ltd. (1973 KLT 896 (SC) = AIR 1973 SC 2734.

8. No person shall be deprived of his life or personal liberty except according to procedure established by law.

9. Maneka Gandhi v. Union of India (1978 KLT OnLine 1001 (SC) = AIR1978 SC 597.

10. Rights against solitary confinement and against being handcuffed, rights to live with dignity, free legal aid, speedy trial and to monetary compensation, the rights of the bonded labour to be rehabilitated and the right to know as the ingredient of participatory democracy are some of the rights evolved early. For a discussion, see M.P.Singh, V.N.Shukla’s Constitution of India (Eleventh edition 2008, Eastern) pp 205-211.

11. One High Court disallowed a construction blocking free passage of fresh air in open space (T.Damodhar Rao v. Special Officer, Municipal Corporation of Hyderabad (1987 (1) KLT OnLine 1050 (A.P.) = AIR 1987 A.P. 171), another reminded the city fathers of their duties to keep the streets clean and hygienic (L.K.Koolwal v. State of Rajasthan, AIR 1968 Raj.2) and still another wanted the Government to re-examine if tube wells planned for Lakshadweep islands would lead to saline water intrusion later(FK Hussain v. Union of India (1990 (1) KLT OnLine 1016 = AIR 1990 Ker.321).

12. For the old cases, See P.Leelakrishnan, Environmental Law in India (6th edition), pp.16-19, LexisNexis.

13. Municipal Council, Ratlam v. Vardhichand (1980 KLT OnLine 1023 (SC) = AIR 1980 SC 1622 p.1629.

14. Ibid p 1629.

15. Subsequently, in 1986, the High Court of Madhya Pradesh invoked the same law for closing a medicine factory as its booming boilers were disturbing the sleep of those living in the buildings nearby, Krishna Gopal v. State of Madya Pradesh (1986) Cri LJ 396.

16. Rural Litigation Kendra v. State of Uttar Pradesh, 1985 KLT OnLine 1229 (SC) = AIR 1985 SC 652 and 1988 (2) KLT OnLine 1112 (SC) = AIR 1988 SC 2187).

17. M.C.Mehta v. Union of India, (1986 KLT OnLine 1436 (SC) = AIR 1987 SC 965, M.C.Mehta v. Union of India, (1987 (1) KLT OnLine 1011 (SC) = AIR 1987 SC 1086, M.C.Mehta v. Union of India, 1988 (2) KLT SN 44 (C.No. 57) SC = AIR 1988 SC 1037 and M.C. Mehta v. Union of India, 1988 (1) KLT OnLine 1016 (SC) = AIR 1988 SC 1115).

18. M.C. Mehta v. Union of India (1987 (1) KLT OnLine 1011 (SC) = AIR 1987 SC 1086, 1099.

19. Chhertiya Pardushan Mukti Sangarsh Samati v. State of Uttar Pradesh (1990 (2) KLT OnLine 1115 (SC) = AIR 1990 SC 2060 and Subhash Kumar v. State of Bihar (1991 (1) KLT SN 22 (C.No.29) SC = AIR1990 SC 2060.It is true in the two cases the Court declared the right to environment as part of Article 21 but did not get the opportunity to apply the dictum to the facts as the petitioners in both cases, were found to have made false allegations with personal grudge towards polluting companies.

20. 1991 (2) KLT OnLine 1022 (SC) = AIR 1991 SC 1902.

21. Ibid p.1922. One may say that nursing home is also necessary in maintaining health in a locality. However, the maxim ‘prevention is better than cure’ becomes the best environmental policy as it foresees and prevents potential dangers had its sway in the case.

22. 1995 (1) KLT SN 27 (C.No. 38) SC = AIR 1995 SC 922.

23. Ibid pp 941, 942.

24. 1996 (1) KLT OnLine 920 (SC) = AIR 1996 SC 1446.

25. Ibid pp 1467, 1468.

26. Indian Council for Enviro-Legal Action v. Union of India (2011 (3) KLT SN 137 (C.No.141) SC = (2011) 8 SCC 161).

27. Andhra Pradesh Pollution Control Board v. M.V.Nayudu (2000 (3) KLT OnLine 1029 (SC) = (2001) 2 SCC 812. 

28. The later history shows that the Law Commission took up the matter. The Central Government followed it up. The efforts resulted in the establishment and working of the Green Tribunal from 2010. Constituted with experts in technology and law, the Tribunal has enough coercive powers for realizing environmental justice in a pragmatic manner.

29. Andhra Pradesh pollution Control Board v. MV Nayudu (2000 (3) KLT OnLine 1029 (SC) = (2001) 2 SCC 812) p 815.

30. Narmada Bachao Andolan v. Union of India (2001 (1) KLT OnLine 1014 (SC) = AIR 2000 SC 3751), pp 3787, 3804.

31. Article 51-A (g).

32. T.N.Godavarman Thirumulpad v. Union of India (2012 (1) KLT Suppl. 90 (SC) = (2012) 4 SCC 362.

33. Mantri Techzone Pvt Ltd v. Forward Foundation (2019 (1) KLT OnLine 3089 (SC) = (2019) 18 SCC 494.

34. Hospitality Association of Mudumalai v. In Defense of Environment and Animals (2020 (5) KLT OnLine 1171 (SC) = (2020) 10 SCC 589.

35. T.N.GodavarmanThirumulpad v. Union of India (2012) 3 SCC 277.

36. Chief Forest Conservator, Wildlife v. Nisar Khan (2003 (2) KLT SN 96 (C.No.124) SC = AIR 2003 SC 1867.

Role of Port State Jurisdiction in Esuring Safety of Ships at Port

(By Aliyar M.E., Assistant Professor, Bharata Mata School of Legal Studies, Aluva)

Abstract

Port State control (PSC) is an inspection regime for countries to inspect foreign-registered ships in port other than those of the flag state and take action against ships that are not in compliance.  The evolution of Port State Jurisdiction concept was consequent on the issues confronted with the absolute failures of Flag States’ monitoring and regulating of their own vessels. There were number of incidents of mishaps of vessels causing huge amount of losses. Here a Coastal State having an international port may exercise its PSJ over foreign-flagged ships and to regulate activities beyond national jurisdiction.[1] PSJ includes multilateral agreements intended to protecting common concerns. The agreements in form of MoUs aims to monitor and prevent to use substandard ships even in the case of foreign fishing vessels.[2]

Introduction

Ships that trade internationally have to call at various ports all over the world. Sometime these international trading ships may not reach its home ports due to various reasons and in such cases Ship’s Certificates cannot be renewed or provide for general maintenance. Therefore, in order to avoid such contingencies, ships must be inspected at various ports to ensure compliance with rule requirements as regards safety, maintenance, manning, etc. This control is termed as Port State Control. Port state jurisdiction is not covered by UNCLOS directly, but UNCLOS provisions confirm this practice which is indicative of residual jurisdiction in relation to port state-control.

Port state control (PSC) is an inspection regime for countries to inspect foreign-registered ships in port other than those of the Flag State and take action against ships that are not in compliance. Inspectors for PSC are called PSC officers (PSCOs), and are required to investigate compliance requirements of international conventions, such as SOLAS, MARPOL, STCW, and the MLC. Inspections can involve checking to ensure that the vessel is manned and operated in compliance with applicable international law, and verifying the competency of the ship’s master and officers, and the ship’s condition and equipment.

A port state enjoys limited jurisdiction over a foreign-flagged vessel in its port. When a foreign vessel comes to the coastal state ports they are subject to the coastal state’s criminal laws, civil laws, and regulations. Yet the Coastal State has discretion as to whether jurisdiction will be exercised in each instance. This means it is up to the Coastal State to decide if, how, and when to exercise its jurisdiction (enforcement).

Such types of jurisdictional enforcement powers help to consider Port State Control (PSC). PSC helps port States to inspect and verify that foreign vessels are operated on the basis of international standards for ship condition which includes:-

* Vessel Source Pollution

* Equipment

* Manning

Operations are conducted on three grounds mainly:

* Own initiative

* At the request of the Flag State or another Coastal State

* After a third party complaint

These enforcement powers have reasonable restrictions over foreign sovereign immune vessels such as warships, vessels owned and operated by a sovereign foreign state entity, and vessels which may be controlled, owned, or operated by diplomatic missions.

DIFFERENCE BETWEEN VOLUNTARY AND FORCED ENTRY

When a foreign vessel enters a Port State voluntarily, it has got limited freedom compared to a vessel which entered a port forcefully or due to other conditions of distress such as severe weather, mechanical or structural integrity problems, etc. If the vessel forcefully enters the ports, it should not have an intention to dock in that port. It must not have any pre-conceived plans. In such circumstances Port State grants the vessel limited immunity from prosecution in matters specifically related to the coastal state’s jurisdiction (violations of coastal/port state’s civil laws, and domestic environmental regulations) as the vessel in distress could not take appropriate measures to avoid entering the waters/port and hence avoid non-compliance.

In particular, they are generally considered exempt from non-malicious breaches of marine pollution laws and regulations under extreme circumstances and violations of international regulations. The flag state jurisdiction witnesses failing to take proper action. However, if while the vessel is in port, and the vessel (including members of the crew) violate the laws of the coastal state they may be subject to the jurisdiction of the local authorities (i.e. committing crimes while in port, etc.). this is called the grey area and it is debated often. If the authorities are under the impression the vessel or members of the crew may currently be engaging in activities which violate the laws or regulations of the coastal state they may increase their jurisdiction, including enforcement powers, and even prosecution. Here the Port State may get different types of powers both under PSJ regime and other principles like Universality Principle or Protective Principle.

REGIONAL PORT STATE CONTROL

The first regional arrangement for port States was created in Europe in the year 1982 Memorandum of Understanding on Port State Control in Implementing Agreements on Maritime Safety and Protection of the Marine Environment, known as the Paris Port State Control MOU. The Paris Memorandum of Understanding on Port State Control is the official agreement between the 27 participating Maritime Authorities implementing a harmonized system of Port State Control. Later it was followed by Latin American Agreement on Port State Control in the year 1992 and later in 1993 by Tokyo Port State Control MOU, the 1996 Caribbean Port State Control MOU, and in 1997 MOU on Port State Control in the Mediterranean Region. The most recent Port State Control MOU is for the Indian Ocean and East Africa. All the regional port state control arrangements are substantively similar and follow the model of the 1982 Paris Port State Control MOU.

FORMATION OF PARIS MOU

There was a massive oil spill in the year 1978 on the coast of France by an oil tanker named Amoco Cardiz.[3] Due to such spill, twelve European maritime authorities decided to develop a system in order to inspect foreign ships to find defect and deficiencies in  ships docked in their ports.

This resulted in the formation of Paris MOU on Port State Control. Under this MoU each administration decided to inspect at least 25 percentage of foreign ships visiting their ports. The Paris Memorandum of Understanding on Port State Control (Paris MoU),[4] adopted in Paris (France) on 1 July 1982. It consists of 27 member countries as participants.

It was common inspection procedures and centralized recording of all inspections of the ship which are to be stored in the computer database.  After the formation of Paris MOU, it was realized that if neighbouring countries also exercise control on the same ship within short intervals, then this would lead to unnecessary duplication of work.  So with regards to this, a regional co-operation amongst the countries was agreed upon to avoid duplication of work. Under this MoU, it was also decided to share information and tracking of ship movement and previous history of the ships among the maritime countries. As per the information, the inspections can be followed up as required.

Ship Risk Profile (SRP)[5]

The Ship Risk Profile (SRP) is based on the following factors, using details of ship’s inspections in the Paris MoU area in the last 36 months:

* Type and age of ship

* Number of deficiencies

* Number of detentions

* Performance of ship’s flag

* Performance of the Recognised Organisation (RO)

* Performance of the Company responsible for the ISM Management (holder of  Document of Compliance)

Risk Assessment Matrix Determination of SRP:

■ Low Risk Ships are ships which meet all criteria of the low risk parameters

■ High Risk Ships are ships with 5 or more points

■ Standard Risk Ships are ships which are neither LRS nor HRS

Inspection Categories

Under the NIR there are two categories of inspection; Periodic and Additional. For the former, a time window will open after the vessel’s last inspection in the Paris MOU region, the frequency of which will vary according the vessel’s Ship Risk Profile:

■ High Risk Ships – time window between 5-6 months after the last inspection

■ Standard Risk Ships – time window between 10-12 months after the last inspection

■ Low Risk Ships – time window between 24-36 months after the last inspection

It a ship calls at a Paris MOU port within the time window, it will be classified as

Priority II and may be selected for a Periodic inspection. However, if it arrives after the time window it will be classified as Priority I and must undergo a Periodic inspection before it leaves port.

Priority I inspections may, in certain circumstances, be deferred to another port in the same Member State, or a port in another Member State if the latter agrees. Inspections will not be conducted if a port call takes place only at night or if in the judgement of the Port State the inspection would create a risk to the safety of the inspectors, the ship, its crew, the port or the marine environment. However, in the event of repeated port calls at night, special arrangements will be made to carry out an inspection.

Additional surveys are triggered by an “overriding factor” or “unexpected factor”, depending on the severity of the incident. A vessel will be classified as Priority I in the event of an “overriding factor”, irrespective of when its next periodic survey is due. “Overriding factors” include:

* Ships which have been suspended or withdrawn from their class for safety reasons since the last inspection.

* Ships which have been the subject of a report or notification by another Member State.

* Ships which cannot be identified in the inspection database.

* Ships which have been involved in a collision, grounding or stranding on their way to the port.

* Ships which have been accused of an alleged violation of the provisions on discharge of harmful substances or effluents.

* Ships which have manoeuvred in an erratic or unsafe manner whereby routing measures, adopted by the IMO, or safe navigation practices and procedures have not been followed.

* Similarly, an “unexpected factor” will cause the ship to be classified as Priority II. “Unexpected factors” include.

* Ships which have not complied with the applicable version of the IMO Recommendation on navigation through the entrances to the Baltic Sea.

* Ships carrying certificates issued by a formerly recognised organisation whose recognition has been withdrawn since the last inspection.

* Ships which have been reported by pilots or port authorities or bodies as having apparent anomalies which may prejudice their safe navigation or pose a threat of harm to the environment.

* Ships which have failed to comply with the relevant notification requirements.

* Ships which have been the subject of a report or complaint by the master, a crew member, or any person or organisation with a legitimate interest in the safe operation of the ship, on-board living and working conditions or the prevention of pollution, unless the Member State concerned deems the report or complaint to be manifestly unfounded.

* Ships which have been previously detained more than three months ago.

* Ships which have been reported with outstanding deficiencies, except those for which deficiencies had to be rectified within 14 days after departure, and for deficiencies which had to be rectified before departure.

* Ships which have been reported with problems concerning their cargo, in particular noxious and dangerous cargoes.

* Ships which have been operated in a manner posing a danger to persons, property or the environment.

* Ships where information from a reliable source becomes known, to the effect that their risk parameters differ from those recorded and the risk level is thereby increased.

Inspections carried out under the present regime will count for determining when the next inspection is due.

Notwithstanding any of the above, a Member State has the right to inspect a vessel at any time if they deem it to be appropriate.

Inspection Types

Under the NIR there are three types of inspection: initial, more detailed and expanded. Periodic inspections of Low Risk Ships and Standard Risk Ships other than bulk carriers, gas tankers, oil tankers, chemical tankers or passenger ships, older than 12 years of age, will be an initial inspection. However, if clear grounds are found during an initial inspection indicating that the vessel is not complying with particular convention requirements, a more detailed inspection will be carried out.[6]

All High Risk Ships regardless of type, and all bulk carriers, gas tankers, oil tankers, chemical tankers and passenger ships, older than 12 years of age, will be subject to an expanded inspection, together with vessels due to be re-inspected following a ban.

If an Additional inspection is warranted, this will be no less than a more detailed inspection. However, in the case of a High Risk Ship or a bulk carrier, gas tanker, oil tanker, chemical tanker or passenger ship, older than 12 years of age, the Member State may decide to perform an expanded inspection.

Banning and Refusal of Access Criteria

Under the present system only certain ship types may be banned or refused access to EU ports if registered with a flag state appearing on the Paris MoU black list. Under the NIR, this sanction will apply to all vessels regardless of type if registered with a flag state appearing in the Paris MoU black or grey lists.

From 1 January 2011 vessels will be refused access to all ports in the EU region if:

* Registered with a black listed flag state and detained more than twice in the preceding 36 months.

* Registered with a grey listed flag state and detained more than twice in the preceding 24 months.

Bans will also be subject to a minimum duration:

* 3 months after the first ban

* 12 months after a second ban

* 24 months after a third ban

* Permanent after a fourth ban

Any subsequent detention following a second ban will lead to another ban. A vessel banned for the third time must comply with stringent conditions before the 24 month period has elapsed, otherwise it will be refused access permanently. It is important to note that a ban affects a vessel’s EU Port State Control record for life, regardless of any changes of ownership, class or flag.

Reporting

In addition to the current reporting requirements, as from 1 January 2011 the following information must be transmitted for all ships arriving or leaving a port or anchorage within the EU region:

* Pre-arrival notification, at least 72 hours in advance for ships eligible for expanded inspection

* Pre-arrival notification at least 24 hours in advance (or on departure from the previous port if the voyage is less than 24 hours)

* Actual Time of Arrival

* Actual Time of Departure

The requirement for the operator, agent or master of a ship which is subject to an expanded inspection to provide 72 hours’ notice before the expected time of arrival (or before leaving the previous port or anchorage if the voyage is expected to take less than 72 hours) already exists for certain ships. However, as from 1 January 2011 this requirement also applies to:

* All ships with a high risk profile

* Any passenger ship, oil tanker, gas tanker, chemical tanker or bulk carrier, older than 12 years of age

Information on ships eligible for expanded inspection will be made available online.

The 72-hour notification must include at least the following information:

* Ship identification (name, call sign, IMO or MMSI number and flag).

* Planned duration of the call (ETA/ETD).

* For tankers: (a) hull configuration: single hull, single hull with segregated ballast tanks, double hull, (b) condition of the cargo and ballast tanks: full, empty, inserted, (c) volume and type of cargo

* Planned operations at the port or anchorage of destination (loading, unloading, other).

* Planned statutory survey inspections and substantial maintenance and repair work to be carried out whilst in the port of destination.

* Date of the last expanded inspection in the Paris MoU region.

TOTAL NUMBER OF INSPECTIONS AND DETENTIONS PERCENTAGE (7)

INDIAN OCEAN MoU[7]

The Indian Ocean Memorandum of Understanding on Port State Control (Indian Ocean MoU), signed in Pretoria (South Africa) on 5 June 1998. It consists of 20 members. The Indian Ocean Memorandum of Understanding (IOMOU) on Port State control (PSC) in the Indian Ocean region was finalized on the basis of the First preparatory meeting held in India in October 1997 and the second meeting in June 1998 in South Africa. The second meeting was attended by Australia, Bangladesh, Djibouti, Eritrea, Ethiopia, India, Iran, Kenya, Maldives, Mauritius, Mozambique, Myanmar, Oman, Seychelles, South Africa, Sri Lanka, Tanzania and Yemen.

A total of 5943 inspections were carried out in 2019. Out of these 5943 inspections, 2852 inspections had deficiencies and the total numbers of deficiencies were 10960. Serious deficiencies noted by the PSCOs led to the detention of 232 ships and needed to be rectified prior to the ships’ departure; the overall detention percentage for the year was 3.9%. There was increase in total number of inspections in 2019, compared with those in 2018; and the detention percentage decreased from 4.42 % recorded in 2018. The average number of deficiencies per inspection in 2019 (1.84) has slightly decreased compared to the previous year (2.07).[8]

References:

1. Introduction: Port State Jurisdiction: Challenges and Potential, Cedric Ryngaert, The International Journal of Marine and Coastal Law 31 (2016) -394.

2. The shaky Foundations of the FAO Port State Measures agreement: How watertight is the Legal Seal against access for Foreign Fishing Vessels? Andrew Serdy, The International Journal of Marine and Coastal Law 31 (2016) 422-441.

3. Amoco Cadiz was a VLCC (very large crude carrier) owned by Amoco Transport Corp and transporting crude oil for Shell Oil. Operating under the Liberian flag of convenience, she ran aground on 16 March 1978 on Portsall Rocks, 2 km (1.2 mi) from the coast of Brittany, France. Ultimately she split in three and sank, resulting in the largest oil spill of its kind in history to that date. (AMOCO CADIZ -IMO-7336422) https://en.wikipedia.org/wiki/Amoco_Cadiz

4. Paris MoU. https://www.parismou.org/The Paris MoU on PSC is an administrative agreement between twenty-seven Maritime Authorities. In 1978 the ‘Hague Memorandum’ between a number of maritime authorities in Western Europe was developed. It dealt mainly with enforcement of shipboard living and working conditions as required by ILO Convention No.147.

5. Ship Risk Profile (SRP). https://www.parismou.org/inspections risk.libraray-flag. A ship’s risk profile is recalculated daily taking into account changes in the more dynamic parameters such as age, the 36 month history and company performance. Recalculation also occurs after every inspection and when the applicable performance tables for flag and R.O.s are changed.

6. Southampton on Shipping Law-Chapter VI-The Liabilities of the Vessel, Richard Shaw and Dr. Michael Tsimplis, (page 156) Institute of Maritime Law-Informa, London (2008).

7. TOTAL NUMBER OF INSPECTIONS AND DETENTIONS PERCENTAGE by Paris MoU. (2012) https://www.parismou.org/inspection-search/inspection-search

8. Indian Ocean MoU. http://www.iomou.org/.Indean Ocean MoU. The Indian Ocean Memorandum of Understanding on Port State Control (Indian Ocean MoU), signed in Pretoria (South Africa) on 5 June 1998.

Adverse Possession: An Evolving Concept

(By Saji Koduvath, Advocate, Kottayam)

Contents in a Nutshell

To invite adverse possession:

1. Mere ‘animus possidendi’ is not enough; there must have animus to ‘dispossess’.

2. Trespasser must know who the true owner is.

Under the provisions of the Limitation Act, 1963, in a suit for recovery, the burden to show 20 years’ or more (adverse) possession is upon the defendant.

But, in Nazir Mohamed v. J. Kamala (2020 (4) KLT OnLine 1153 (SC) = AIR 2020 SC 4321), our Apex Court held that in the absence of pleading to show that the relief of decree for possession was within the period of limitation, the suit would be dismissed.

Introduction

Adverse Possession is a common law doctrine. The true title holder loses his title by adverse possession; and it is acquired by the ‘trespasser’. Period of limitation, for acquiring adverse possession, under Article 65 of the Limitation Act, is 12 years. It starts, ‘when the possession of defendant becomes adverse to the plaintiff’.

Therefore, the trespasser should have ‘dispossessed’ the true owner by an overt act or by inviting the true owner’s specific attention to attract ‘adverse possession’ (as it was said to be needed in acquiring ‘adverse possession’ against a co-owner, in early times). In other words, intention to dispossess true owner is necessary; or intention to possess property of true owner (mere animus possidendi), not sufficient. The pivotal point that constitutes adverse possession is:

(i) the positive and hostile acts of the trespasser; and,

(ii) not the inaction or acquiescence of the true land owner.

Adverse Possession – ‘Evolving’ Concept

Adverse possession being essentially a judge-made law, and not exhaustively defined in any statute, the concept of adverse possession has been ‘evolving’. It is interesting to note that there were divergent views even with respect to the very fundamentals of ‘adverse possession’.

Earlier view– Inaction of true-owner matters (not overt-acts of trespasser).

At one time it was considered that inaction/acquiescence of the true owner for 12 years brings-in adverse possession. Because,

* Article 65, which speaks of as to limitation of suits (to be filed by the plaintiffs) does not specifically speak as to (i) intention to dispossess title owner or (ii) knowledge on the part of trespasser as to who is the true owner.

* “Nec vi, nec clam, necprecario” does not refer to (or speak as to) ‘hostile’

possession.

* “Animus possidendi” also does not say – hostile possession.

* Inaction, acquiescence etc. of true owner are the material considerations – to become a ‘possession’ adverse to plaintiff.

* Therefore, to attract adverse possession the trespasser need not know the true owner.

Philosophy of the earlier view can be seen from Amrendra Pratap Singh v. Tej Behadur (Para 22 (2004 (1) KLT OnLine 1278 (SC) = AIR 2004 SC 3782).

“What is adverse possession? ………The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. ……… The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. ………..”

Present view– Give prominence to overt and adverse acts of trespasser.

Following are the important decisions to see the present view on adverse possession:

1. Karnataka Board of Wakaf v. Government of India (2004 (1) KLT OnLine 1254 (SC) = AIR 2004 SC 2096).

2. T. Anjanappa v. Somalingappa (2006 (3) KLT OnLine 1101 (SC) = (2006) 7 SCC 570).

3. P.T.Munichikkanna Reddy v. Revamma (2007 (2) KLT OnLine 1115 (SC) = AIR 2007 SC 1753).

4. Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT 865 (SC) = AIR 2019 SC 3827: (2019) 8 SCC 729).

P.T.Munichikkanna Reddy v. Revamma, (AIR 2007 SC 1753), is the latest decision of the Supreme Court that discussed various views on adverse possession. It is observed in this decision as under:

“Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”

“Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. “

U.N. Mitra, in the “Law of Limitation and Prescription” (Tagore Law Lectures – 12th Edition, Vol.2, Page 1430) it is stated as under:

“A squatter is one who settles on land without title or with a view to acquiring title. He is a person who settles or locate on land enclosed or unenclosed with no bona fide claim or colour of title and without consent of the owner. He is merely an intruder and no matter how long he may continue there, no right in law vests in him. A squatter who does not set up a claim of right cannot plead adverse possession. No length of squatting possession would operate as a good or valid defence in a suit for possession by the true owner. A mere squatter or intruder who does not deny the title of the true owner or set up any right in himself cannot claim to be in adverse possession. ………” (Quoted in: K.J. Abraham, v. Mrs.Mariamma Itty, (ILR 2016-3(Ker.) 98).

In a nutshell, adverse possession arises from:

1. acquiescence of the owner to the hostile acts; and

2. hostile acts of the trespasser.

Article 142 of the (Repealed) Limitation Act, 1908

Article 142 of the (repealed) Limitation Act, 1908, which dealt with the subject, did not put down the term ‘adverse’ in the relevant article concerned with “adverse possession”.

Article 142 of the Limitation Act, 1908 reads as under:

Article 142 of the Limitation Act, 1908 provided that the true owner would lose his right to recover the property from a trespasser if he failed to file a suit within the period of 12 years.

Article 65 of Limitation Act, 1963: Complete Change in Law of Adverse Possession

Articles 65 of the Limitation Act, 1963 brought-in complete change insofar as the onus of proof is concerned: The new provision casted onus on the trespasser to prove claims of title by ‘adverse’ possession. Adverse possession arises, under Article 65 of Limitation Act, 1963, only ‘by the positive and hostile acts’ of the trespasser; that is, mere possession is not sufficient, but, it must be ‘adverse’ to the true owner.

Article 65 of Limitation Act reads as under:

In T. Anjanappa v. Somalingappa (2006 (3) KLT OnLine 1101 (SC) = (2006) 7 SCC 570), it is observed that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action

Our Apex Court held as under:

“The concept of adverse possession contemplates a hostile possession i.e., a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other’s rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner’s right excluded him from the enjoyment of his property.

…The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not raise…… Therefore, the defendants are in possession and enjoyment of the property knowing fully well that the property belonged to the plaintiff’s father and the plaintiff’s vendor also did not take any action to evict them and the plaintiff and his vendor were aware that the properties belonged to them and despite the same, the plaintiff’s vendor did not take any action to evict them. Hence, the appellants/defendants have also perfected title by adverse possession. Therefore, the 2nd substantial question of law of is answered in favour of the appellants/defendants.”

“…. …. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise.”

How to Plead Adverse Possession

It is really a troublesome matter for the advocates. Karnataka Board of Wakaf v. Government of India (2004 (1) KLT OnLine 1254 (SC) = AIR 2004 SC 2096); T. Anjanappa v. Somalingappa  (2006 (3) KLT OnLine 1101 (SC) = (2006) 7 SCC 570); and P.T. Munichikkanna Reddy v. Revamma (2007 (2) KLT OnLine 1115 (SC) = AIR 2007 SC 1753), guide us in this field. It may be necessary to plead the following modules.

* The claimant has been in ‘hostile and open, continuous uninterrupted as of right’ possession of the land,

* in denial of the title of the rightful owner,

* adversely to the interest of the owner of the land,

* started with wrongful disposition of the rightful owner,

* exercising absolute rights of ownership in respect of the land,

* on and from .. . .. (Specify date).

And, it is appropriate to plead ‘hostile and open’ possession as under:

* Claimant’s acts were hostile enough to make the true owner aware of the adverse possession;

* or, he made the true owner knew as to his hostile acts or adverse possession (from the inception).

Burden of Proof Sabotaged

Nazir Mohamed v. J. Kamala (2020 (4) KLT OnLine 1153 (SC) = AIR 2020 SC 4321)

Is it the burden of the defendant, in a suit for recovery of possession, to plead adverse possession? Or, is it the duty of the plaintiff to show that the suit for possession was within the period of limitation prescribed in the Limitation Act (especially the possible claim of Adverse Possession)?

Supreme Court of India considered hitherto that the burden was fully rested upon the defendant.

But, in Nazir Mohamed v. J. Kamala (2020 (4) KLT OnLine 1153 (SC) = AIR 2020 SC 4321), the Apex Court held that in a suit for recovery of possession, the plaintiff had to plead the date on which the defendant took possession and in the absence of pleading to show that the relief of decree for possession was within limitation, the suit would be dismissed; for, Section 3 of the Limitation Act barred the institution of any suit after expiry of the period of limitation prescribed in the said Act, even though the plea of limitation had not been taken in defence. It is pointed out in this decision that the presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else.

It is held in Nazir Mohamed v. J.  Kamala, (2020 (4) KLT OnLine 1153 (SC) = AIR 2020 SC 4321), as under:

“52. The maxim “possession follows title” is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.

53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.”

After quoting Article 65 of the Limitation Act the Court observed as under:

“55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in-interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.

56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner…and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.”

Two views on Declaration & Recovery

Can be used as a Shield alone(earlier view):

Declaration cannot be sought for with respect to Adverse Possession was the view taken by certain Jurists and Courts. (See: Gurudwara Sahib v. Grama Panchayath (2013 (4) KLT SN 28 (C.No.26) SC = (2014) 1 SCC 669). This view is followed in Mohini v. Thimmappa (2015 (4) KLT 759). It is held: Extinguishment of the right of real owner is depended on the ‘establishment’ of adverse possession; and the ‘establishment’ of adverse possession comes only when a title suit comes. Therefore, plea of adverse possession is only a shield; and not sword.

It can be pointed out that, in Article 65, the words ‘plaintiff’ and ‘defendant’ are used in a way that adverse possession can be claimed as a ‘shield’.

Can be used as a Sword(present view)

The earlier view in Gurudwara Sahib v. Grama Panchayath (2013 (4) KLT SN 28 (C.No.26) SC = (2014) 1 SCC 669) that declaration cannot be sought for with respect to Adverse possession is overruled by Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT 865 (SC): AIR 2019 SC 3827: (2019) 8 SCC 729) (Arun Misra, J). The Three Judge Bench held in Ravinder Kaur Grewal that once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner.

In paragraph 62 of Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT 865 (SC) : AIR 2019 SC 3827: (2019) 8 SCC 729), following has been observed:

“62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.”

It is pointed out that S. 27 Limitation Act is an exception to the general rule – limitation bars remedy, not title.

[See also: Sarangadeva Periyamadon v. Ramaswamy (1966 KLT OnLine 1226 (SC) = AIR 1966 SC 1603) 3-Judge-Bench; and Amrendra Pratap Singh v. Tej Behadur (AIR 2004 SC 3782).

Section 27, Limitation Act – Extinguishment of right to property:

Section 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.

Adverse possession confers title under Section 27 (by necessary implication, because extinguished title of real owner,resultantly, vest in wrongdoer; because, rights thereon had already been lost to the true ownerand,as a consequence, it passed over to the ‘possessory’ owner).

Therefore, it is clear that Section 27 is a provision in the Limitation Act that gives a substantial right to a party. In view of Section 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur (2019 (3) KLT 865 (SC) : AIR 2019 SC 3827: (2019) 8 SCC 729), that the person acquiring title by adverse possession can use it as a sword.

A Discordant Note on 2018 (4) KLT 944

Whether trespasser claiming adverse possession should know true owner and put notice on him?

In George v. Balakrishnan (2014 (4) KLT 788), it is held: YES.

But, in Kurungottu Kandi Rarichakutty  v. Aranda Rarichan (2018 (4) KLT 944), it is held: NO.

The decision in Kurungottu Kandi Rarichakutty v. Aranda Rarichan (supra) is rendered on answering a reference arisen taking note of discordant notes between George v. Balakrishnan (2014 (4) KLT 788), and Kerala State v. Brijit (2018 (2) KLT OnLine 2063).

The Division Bench referred to the Three-Judge Bench decision of the Apex Court, Kshitish Chandra Boss v. Commissioner of Ranchi (1981 KLT OnLine 1002 (SC) = AIR 1981 SC 707), which held that it was not necessary that the true owner must have been identified and specifically put on notice.

But, the Division Bench, in Kurungottu Kandi Rarichakutty:

(i) overlooked the fact that the supreme Court in Kshitish Chandra Boss v. Commissioner of Ranchi (Supra) dealt with a matter that fell under the erstwhile Limitation Act of 1908, because crucial period pertained in Kshitish Chandra Bosswas 1912 to 1957 (as seen in the decision itself); and

(ii) failed to take notice of the changes in the law on adverse possession by the advent of the Limitation Act, 1963, and the Apex Court decisions on its basis. (As stated above, Article 65 of the 1963 Act (a) put down the term ‘adverse’and (b) casted the onus to prove adverse possessionon the trespasser).

It’s Not All About A“Second Appeal”, But..........

(By N. Ajith, Advocate, High Court of Kerala^[1])

Code of Civil Procedure, 1908 deals with both procedure and some substantive rights like ‘right of appeal’ alike[2]. However, Code omitted to define the word ‘appeal’. Merriam Webster says that ‘appeal is a legal proceeding whereby a case is brought before a higher court for reconsideration of the decision of a lower court’. Appeal is a remedy by which a cause determined by an inferior forum is put before a superior forum to test its correctness. Right of appeal is a substantive and valuable right available to a party aggrieved by the impugned decision[3].

Right to appeal

Appeal is a continuation of the suit[4]. The legal pursuit of a remedy, suit, appeal and second appeal are steps in a series of proceedings, all interconnected byan intrinsic unity and regarded as a single legal proceeding. Right of appeal is not a mere matter of procedure, but is a substantive right. Vested right of appeal to enter the superior court accrues to the litigant and exists as on and from the date the lis commenced. Such a right can be taken away only by a subsequent enactment, if it provides so expressly or by necessary intendment and not otherwise. Right of appeal, where one exists, cannot be denied even in exercise of the discretionary powers of the High Court[5].

Powers and jurisdiction of an appellate court must be circumscribed by the words of the statute. A court of appeal is a ‘court of error’ with a normal function to correct the decision appealed from and its jurisdiction is co-extensive with that of the trial court. It cannot and ought not to do something which the trial court was not competent to do. There is no fetter on its power to do what the trial court could do[6].

What is a question?

Question means anything inquired and an issue to be decided. A question may be a ‘question of fact’, ‘question of law’, ‘mixed question of fact and law’ and even a ‘substantial question of law’. A ‘question of fact’ is a factual dispute between parties which need be resolved by the jury at trial and conflicting views on the factual circumstances surrounding the case. A ‘question of law’ is related to an issue regarding the application or interpretation of law on a particular set of facts[7].

Substantial question of law - What is?

The word ‘substantial question of law’ is also not defined in the Code, though such an expression is found in Art.133 of the Constitution, Section 260A of the Income Tax Act, Section 30 of the Workmen’s Compensation Act, Section 55 and so on.

The word “substantial” prefixed to “question of law” does not refer to stakes involved in the case, nor is it intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between parties. “Substantial questions of law” means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of Section 100 C.P.C., any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by the Supreme Court or by the High Court concerned, it cannot be said that the case involves a  substantial question of law. It is said that a substantial question of law arises when a question of law, which is not finally settled by the Supreme Court (or by the High Court concerned so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by the Supreme Court (or by the High Court concerned), but lower court has ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by the Supreme Court (or the High Court concerned) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by the Supreme Court (or the High Court concerned) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the legal position enunciated needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration. There cannot be a straitjacket definition as to when a substantial question of law arises in a case[8].

To be “substantial”, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way. To be a question of law “involved in the case”, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case. “Where neither such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, a second appeal cannot be entertained.” An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. The general rule is, that High Court will not interfere with concurrent findings of fact by the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where, (a), the courts below have ignored material evidence or acted on no evidence; (b). the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (c). the courts have wrongly cast the burden of proof[9].

A question of law which affects right of the party to the suit will be ‘substantial’, if it is not covered by any specific provision of law, or settled legal principle emerging from binding precedents of High Court concerned, Privy Council or Supreme Court[10]. The proper test would be whether the question of law “is of general public importance or whether it directly or substantially affects the rights of the parties, and if so, whether it is either an open question in the sense that it is not finally settled by the Supreme Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion or alternative views”. The question of interpretation of a particular section directly and substantially affects the rights of the parties and it is an open question in the sense that it is not finally settled by the Supreme Court and it is, therefore, clearly a substantial question of law within the meaning of this test[11].

A second appeal lies only on a substantial question of law. Where no question of law, nor even a mixed question of law and fact was urged before trial court or first appellate court, a second appeal cannot be entertained unless such a course is absolutely warranted[12].

It is the ‘substantial questions of law’ and not a ‘mere question of law’, which is essential condition for maintaining a second appeal. The phrase ‘substantial question of law’ has not been defined in the Code. The proper test for determining whether a question of law arose in the second appeal is substantial or not would be whether it directly and substantially affects the rights of the parties and whether it is an open question in the sense that it is not finally settled by the superior courts. If the question has been settled by the highest court, the general principles to be applied in determining the question are well-settled and the question is merely of the application of those principles, the question will not be a substantial question of law[13].

The rationale

The rationale behind allowing a second appeal on a question of law is that, there ought to be some tribunal having a jurisdiction which would enable it to maintain, and, where necessary, re-establish uniformity throughout the State on important legal issues, so that within the area of the State, the law, insofar as it is not enacted law, should be laid down, or capable of being laid down, by one court whose rulings will be binding on all courts, tribunals and authorities within the area over which it has jurisdiction. That is implicit in a system where the higher courts have authority to make binding decisions on question of law[14].

‘Involved in the case’ - meaning

Section 100 (1) C.P.C. says that a High Court can entertain a second appeal provided that it is satisfied that the case “involves’ a substantial question of law. The word ‘involves’ suggests that such a question must arise in the case and an answer to the question is necessary to decide it. The To be a question of law “involved in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal.

An entirely new point raised for the first time before the High Court is not a ‘question involved in the case’ unless it goes to the root of the matter[15]. A considerable degree of necessity is presupposed.[16]

Effect of 1976 Amendment

Priorto the Amendment in 1976 the scope of second appeal was very wide. The Statement of objects and reasons for the amendment clarifies the situation well. “In dealing with second appeals, the courts had devised and successfully adopted several concepts, such as, a mixed question of fact and law, a legal inference to be drawn from the proved facts, and even the point that the case has not been properly approached by the courts below. This has created confusion in the minds of the public as to the legitimate scope the second appeal under Section 100 and had burdened the High Courts with an unnecessary large number of second appeals”.

The Shah Committee, on arrears of cases in High Courts, observed that, “it is necessary to provide a stricterand better scrutiny of second appeals and they should be made subject to special leave, instead of giving an absolute right of appeal limiting it to a question of law”. Later, the Law Commission in its 54th Report, p.187, reviewed the position, recommended that the right of second appeal should be confined to cases where a), a question of law is involved, and b). the question of law so involved is substantial. The reason for the change is to ensure that the second appeal may not become a ‘third trial on facts’ or ‘one more dice in the gamble’.

The amended Section 100 made the scope of a second appeal narrow. Sec.101 provides that no second appeal is maintainable except on the grounds specified in the Code. No second appeal is permissible under Sec.102, from a suit where the subject matter of original claim for recovery of money is less than twenty five thousand rupees. The conjoint reading of these three provisions and the cumulative effect of the restrictions imposed therein would establish the fact that an entry to a second appellate court is not for the mere asking, but extremely qualified and limited. After the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the First Appellate Court without doing so[17].

While entertaining a second appeal, the Courts should not over-look the change brought about by the 31st Amendment Act of 1976 restricting or limiting the scope of second appeal drastically and now it applies only to appeals involving substantial question of law, specifically set-out in the memorandum of appeals and formulated by the High Court. The Court, for the reasons to be recorded, may also entertain a second appeal even on any other substantial question of law, not formulated by it, if the Court is satisfied that the case involves such a question. Therefore, the existence of a substantial question of law is a sine- qua-non for the exercise of jurisdiction under the provisions of Section 100 of the Code[18]. It is the obligation on the Court of Law to further the clear intendment of the Legislature and not to frustrate it by ignoring the same. High Court cannot ignore the statutory provisions of Section 100 of the Code and re-appreciate the evidence and interfere with the findings of facts unless the substantial question of law or a question of law duly formulated is to be decided. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.

Interestingly, there is no prohibition to entertain a second appeal even on question of fact provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse[19].

The High Court, after having admitted the second appeal and having formulated the substantial questions of law, could not have disposed of the same by only stating its satisfaction on findings of first appellate court[20].

Hearing of an appeal without formulating substantial questions of law is illegal and without jurisdiction. The High Court cannot proceed to hear a Second Appeal without formulating the substantial questions of law involved in the appeal[21].

If the Court does so, it is abnegation or abdication of the duty cast on the court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under Section 100 of the Code. But, the power of the High Court to hear any other substantial question of law not earlier formulated is not taken away if the case involves such question and the court records reasons for its satisfaction.

The phrase “substantial question of law”, as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying “question of law”, means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction to technical, of no substance or consequence, or academic merely. However, the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Article 133(1) (a) of the Constitution.

The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance[22]. If a question of law has already been settled by the highest court, that question, however important and difficult it may have been regarded in the past and however large may be its effect on any of the parties, would not be regarded as a substantial question of law.

By importing the expression substantial question of law, the Commission can be said only to have sought to eliminate frivolous, flimsy and fragile second appeals and exhorted the High Courts to be on the strictest vigil against entry of appeals on inconsequential but ingenious grounds. It does not by its own avowal preclude admission of appeal in cases where there has been judicial misconduct in the assessment or admission of evidence. This predicates that facts found upon such misconduct of the proceedings and misapplication of the procedure with regard to evidence will necessarily be a question of law touching the legality of inference on proved facts. If the law is settled but is not applied to a set of facts despite the finding warranting its application, it is not perceivable how the legislature could conceive of barring the High Court from setting right the erroneous application. Where the finding of fact is on no evidence, then it will be either on assumptions, or on surmises, and conjectures. This will bring the judicial system to discredit before the people. How such a situation shall be allowed to go unremedied where it leads to the denial of justice?[23] Finding of fact, however erroneous, cannot be challenged in a second appeal. But a finding reached on the basis of additional evidence which ought not to have been admitted and without any consideration whatever of the intrinsic and palpable defects in the nature of the entries themselves which raise serious doubts about their genuineness cannot be accepted as a finding that is conclusive and cannot be touched in Second Appeal. Where the findings stand vitiated by wrong test and based on assumption and conjectures and resultantly there is an element of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Perversity itself is a substantial question of law. What is required is a categorical finding on the part of the High Court as to perversity[24].

Circumstances under which High courts can interfere with the findings of lower courts or concurrent findings of fact are explained in detail in Nagarajappa’s case[25].

Common mistakes in dealing with Section 100 C.P.C. In actual practice, while deciding second appeals, mandatory as well as statutory requirements are seldom borne in mind and second appeals are being entertained without conforming to the discipline[26].

Some of the oft-repeated errors relating to scope of second appeal and procedural aspect of second appeal, are enumerated as follows: (a) admitting a second appeal when it does not give rise to a substantial question of law; (b) admitting second appeals without formulating substantial question of law; (c) admitting second appeals by formulating a standard or mechanical question such as “whether on the facts and circumstances the judgment of the first appellate court calls for interference” as the substantial question of law, (d) failing to consider and formulate relevant and appropriate substantial question(s) of law involved in the second appeal, (e) rejecting second appeals on the ground that the case does not involve any substantial question of law, when the case in fact involves substantial questions of law; (f) reformulating the substantial question of law after conclusion of hearing, while preparing the judgment, thereby denying an opportunity to the parties to make submissions on the reformulated substantial question of law; and (g) deciding second appeal by re-appreciating evidence and interfering with findings of fact, ignoring the questions of law. These lapses or technical errors lead to injustice and also give rise to avoidable further appeals to the Supreme Court and remands by the Supreme Court, thereby prolonging the period of litigation. Care should be taken to ensure that the cases not involving substantial questions of law are not entertained, and at the same time ensure that cases involving substantial questions of law are not rejected as not involving substantial questions of law[27].

Dealing with a Second Appeal

Memorandum of appeal must state the substantial questions of law[28].

It is neither proper nor permissible to raise all new grounds in second appeal[29].

A new plea of limitation, which is not merely one of law, but a mixed question of fact and law, cannot be raised for the first time in a second appeal[30].

The counsel who appeared and filed vakalath for the respondent subsequently died. No vakalath seen filed for the legal representatives of the deceased respondent. It is evident that the High Court disposed of the appeal without giving an opportunity to the legal representatives of the deceased respondent of being heard. The judgment is set aside and remanded[31].

There is no prohibition in law to frame the additional substantial question of law if the need so arises at the time of the final hearing of the appeal[32].

In Ram Prasad’s case[33], Supreme Court held that existence of substantial question of law is a sine-qua-non for the exercise of jurisdiction under Section 100 of the Code and entering into the question as to whether need of the landlord was bonafide or not, was beyond the jurisdiction of the High Court as the issue can be decided only by appreciating the evidence on record. Similar view has been reiterated in a series of cases[34].

A question of law, though available based on pleadings and evidence, if omitted to be raised in early stage, can be raised later[35].

Where the High Court, just referred to grounds A to E raised in the memorandum of appeal as the substantial questions of law, set aside the concurrent findings of the Courts below, the Court did not fulfill the mandate of law[36].

Second appeal can be heard only on substantial questions of law formulated by the High Court. Second appeal can be dismissed on objection raised by the respondent that the questions so formulated do not arise in the case or the same are not substantial questions of law. Any substantial question of law not initially framed but in the opinion of the Court does arise in the case, such questions can be framed subsequently by assigning reasons[37].

Scope of interference in second appeal

A second appeal cannot be disposed of without framing a substantial question of law.

Cursory disposal of the second appeal in limine by the High Court without mentioning the facts, the submissions of the appellant, the points arising in appeals and legal principles applicable to the case, cannot be countenanced[38].

Words ‘prima facie perverse and error apparent on the face of the record’ are not a ‘mantra’ and cannot be employed to permit High Court to do in second appeal what the law enjoins on it not to do [39]. Mere framing of substantial questions of law is not enough. Second appeal must be disposed of on consideration of and in answer to the said questions[40].

No second appeal can be entertained on a question of fact. Question of re appreciation of evidence and framing of substantial questions as to whether findings relating to facts by the court below could vitiate due to irrelevant considerations[41].

“The formulation of substantial question of law or reformulation of the same in terms of the proviso arises only if there are some questions of law and not in the absence of any substantial question of law. “ If no such question arises, it is not necessary for the High Court to frame any substantial question of law[42].

Recently, the Supreme Court has affirmed the duty of courts and said, “even if no question of law is framed at the stage of admission, at least before deciding the case, said question of law ought to have been framed”[43]. Perversity is the limit to interfere with the concurrent findings of the courts below.

In a second appeal under Section 100 C.P.C. there is very limited scope for re-appreciating the evidence or interfering with findings of fact rendered by trial court or the first appellate court. When such divergent findings on fact were available before the High Court in an appeal under Section 100 C.P.C. though re-appreciation of the evidence was not permissible, except when it is perverse, but it was certainly open for the High Court to take note of the case pleaded, evidence tendered, as also the findings recorded by the two courts which were at variance with each other and one of the views taken by the courts below was required to be approved. Question of law for consideration will not arise in abstract but in all cases will emerge from the facts peculiar to that case and there cannot be a strait jacket formula[44].

Appellate Court in second appeal shall not assume jurisdiction to interfere just because another view is possible on appreciation of evidence[45]. Generally the High Court shall not interfere with the concurrent finding of fact under Section 100[46]. Concurrent finding on a material issue should not be upset[47]. But, it is liable to be interfered with when a very important piece of evidence in the nature of an admission by the defendant has been overlooked by the Courts below[48].

Where the substantial question of law had already been decided by the Authority which is binding on the other Courts like the judgments of the Supreme Court under Article 141 of the Constitution is binding on all other Courts etc., it does not remain a substantial question of law since there remains nothing more to interpret on the point[49].

Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial question of law in Second Appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But, where it is found that the First Appellate Court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the Second Appeal, treating it as substantial question of law. Where the First Appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in Second Appeal[50]. Under no circumstances, question of limitation be said to be irrelevant and academic[51]. An order admitting appeal or one formulating a substantial question of law is not final orders[52]. Court cannot partly admit the appeal and reject it partly[53]. High Court has no power, once the appeal is admitted to file to dismiss it without hearing on merits, subject ofcourse in the teeth of Section100 C.P.C.[54]. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage[55].

In a mortgage by conditional sale or sale with a condition of re­purchase, the nature of transaction was considered as a substantial question of law[56]. A question of law where there are conflicting views, a finding without evidence on record, disregard, or non-consideration of relevant and admissible evidence, misconstruing of evidence and documents etc. are considered as substantial.

Finding of genuineness of a Will is ofcourse a question of fact and an interference in Second Appeal is bad[57]. Objection as to the validity of a gift deed is taken as a mixed question of fact and law. Concurrent finding of courts below cannot be lightly interfered in a routine and casual manner by substituting subjective satisfaction[58].

Readiness ad willingness to perform the contract is a mixed question of fact and law[59]. But, in a suit for specific performance of agreement to sell property, the trial court framed an issue regarding the readiness and willingness of the plaintiff to perform his part of the contract and that issue of fact was concurrently found in his favour. It was held that the High Court cannot take a different view in second appeal by re-appreciation of evidence, treating the issue as a substantial question of law[60].

Construction of documents is a substantial question of law and that proposition is settled long back by the Privy Council[61], and affirmed and followed by the Supreme Court in a series of cases[62].

“Most of the second appeals succumb at the threshold itself”.

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Foot Note

1.@: najithmenon@gmail.com

2.Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation (2009 (3) KLT SN 57 (C.No. 59) SC = (2009) 8 SCC 646); Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat (1969 KLT OnLine 1036 (SC) = (1970) 1 SCR 322 /AIR 1970 SC 1); Dayawati v. Inderjit (1966 KLT OnLine 1216 (SC) = (1966) 3 SCR 275 = AIR 1966 SC 1423).

3.Bolin Chetia v. Jogadish Bhuyan (2005 (2) KLT 418 (SC) = (2005) 6 SCC 81 = AIR 2005 SC 1872); Transmission Corporation of A.P. v. Ch. Prabhakar & Ors. ((2004) 5 SCC 551).

4.Purushotham Reddy v. K. Satish (2008 (3) KLT 590 (SC) = (2008) 8 SCC 505; Bhagmal v. Munsi ((2007) 1 SCR 111).

5.Garikapati Veeerayya v. N. Subbaiah Choudhry (1957 KLT SN 54 (C.No.137) SC = AIR 1957 SC 54 = 1957 SCR 488); Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto (1978 KLT OnLine 1065 (SC) = (1979) 1 SCC 92/AIR 1979 SC 1352); Pranab Kumar Mitra v. State of W.B. (1959 KLT OnLine 1416 (SC) = 1959 Supp.(1) SCR 63/AIR 1959 SC 144); Darshan Singh v Ram Pal Singh (1991 (1) KLT OnLine 1041 (SC) = 1992 Supp. (1) SCC 191 = AIR 1991 SC 1654).

6.Shankar Kerba Jadhav v. State of Maharashtra (1969 KLT SN 22 (C.No.43) SC = (1969) 2 SCC 793 = AIR 1971 SC 840); Tejinder Singh Gambhir v. Gurpreet Singh (2015 (1) KLT SN 39 (C.No.54) SC = (2014) 10 SCC 702).

7. Union of India v. Ibrahim Uddin (2012 (3) KLT SN 73 (C.No. 79) SC = (2012) 8 SCC 148).

8. S.B.I. v. S.N Goyal (2008 (2) KLT Online 1143 (SC) = (2008) 8 SCC 92 = AIR 2008 SC 2594).

9. Nazir Mohamed v. J. Kamala (2020 (4) KLT Online 1153 (SC) = (2020) SCC Online SC 676).

10. Hero Vinoth v. Seshammal (2006 (2) KLT Online 1119 (SC) = (2006) 5 SCC 545 = AIR 2006 SC 2234); Madan Lal v. Bal Krishan (2005) 13 SCC 555 = AIR 2006 SC 645; Jwala Singh v. Jagat Singh (2006) 10 SCC 148; Lankeshwar Malakar v. R. Deka (2006) 13 SCC 574; Patrik JJ Saldanah v. Anthony MM Saldanha (AIR 2007 SC 2620); Boodireddy Chandraiah v. Airgela Laxmi (2007 (4) KLT SN 40 (CNo. 41) SC = (2007) 8 SCC 155).

11. Mahindra & Mahindra Ltd. v. Union of India (1979 KLT OnLine 1076 (SC) = (1979) 2 SCC 529 = AIR 1979 SC 798); Chunilal V Mehla and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd. (1962 KLT OnLine 1121 (SC) = AIR 1962 SC 1314); Pankaj Bhargava v. Mohinder Nath (1991) 1 SCC 556 = AIR 1991 SC 1233; Rajeshwari v. Puran Indoria (2005) 7 SCC 60; M.B Ramesh v.K.M.Veeraje Ors. (2013 (2) KLT SN 107 (CNo.136) SC = (2013) 7 SCC 490/ AIR 2013 SC 2088).

12.Sundaraganeshan v. Ramesha Menon (2021 (2) KLT 892).

13.Damjibhai Bijibhai Vasava v. Ranchodbhai Zinabhai (2000) 3 SCC 22 = AIR 2000 SC 1000.

14. Gurdev Kaur v. Kaki (2007) 1 SCC 546 = AIR 2006 SC 1975.

15. Hero Vinoth v. Seshammal (2006 (2) KLT Online 1119 (SC) = (2006) 5 SCC 545 = AIR 2006 SC 2234); Govindaraju v. Mariamman (2005) 2 SCC 500 = AIR 2005 SC 1008.

16. Santhosh Hazari v. Purushottam Tiwari (2001 (1) KLT SN 74 (C.No. 90) SC = (2001) 3 SCC = AIR 2001 SC 965); Pankaj Bhargava v. Mohinder Nath (1991) 1 SCC 556 = AIR 1991 SC 1233.

17. Sheel Chand v. Prakash Chand (1998) 6 SCC 683 = AIR 1998 SC 3063; Tahera Khatoon (dead) through LRs v. Salambin Mohammad (1999 (1) KLT Online 922 (SC) = (1999) 2 SCC 635 = AIR 1999 SC 1104); Ishwar Dass Jain (dead) through LRs v. Sohan Lal (dead) through LRs. (2000 (1) KLT OnLine 921 (SC) = (2000)1 SCC 434 = AIR 2000 SC 426); Kundan Singh v. Salinder Kaur 2010 (6) Supreme 32; Kichha Sugar Co. Ltd v. Roofrite Pvt. Ltd. (2009) 16 SCC 280; Babulal v. Shankarlal (2008) 17 SCC 638; State of Punjab v. Amarjit Singh (2010) 15 SCC 535; Syeda Rahimunnisa v. Malan Bi (2016 (4) KLT OnLine 2048 (SC) = (2016) 10 SCC 315 / AIR 2016 SC 4653); Thiagarajan v.Venugopalaswamy B.Koli (2004 (2) KLT 358 (SC) = (2004) 5 SCC 762 = AIR 2004 SC 1913); Apparaju Malhar Rao v. Tula Venkalaiah (2017 (4) KLT OnLine 2083 (SC) = (2017) 8 SCC 827); Union of India v. Diler Singh (2016 (3) KLT OnLine 2019 (SC) = (2016) 13 SCC 71 = AIR 2016 SC 3131); SNDP Sakhayogam v. Kerala Atmavidya Sangam (2017 (4) KLT 866 (SC) = (2017) 8 SCC 835).

18. Municipal Committee, Hoshiarpur v. Punjab SEB (2010 (4) KLT SN 58 (C.No. 67) SC = (2010) 13 SCC 216).

19. Jagdish Singh v. Nathu Singh (1991 (2) KLT Online 1044 (SC) = AIR 1992 SC 1604); Smt. Prativa Devi (Smt.) v. T.V. Krishnan (1996) 5 SCC 353; Satya Gupta (Smt.) @ Madhu Gupta v.Brijesh Kumar (1998 (2) KLT OnLine 1245 (SC) = (1998) 6 SCC 423); Ragavendra Kumar v. Firm Prem Machinary & Co. (AIR 2000 SC 534); Molar Mal (dead) through Lrs. v.M/s. Kay Iron Works Pvt. Ltd. (2000 (2) KLT OnLine 1010 (SC) = AIR 2000 SC 1261); Bharatha Matha & Anr. V. R. Vijaya Renganathan & Ors.,( 2010 (2) KLT SN 65 (C.No. 62) SC = AIR 2010 SC 2685); and Dinesh Kumar v. Yusuf Ali, (2010 (3) KLT SN 16 (C.No. 20) SC= (2010) 12 SCC 740); Dinesh Kumar v. Yusuf Al (2010 (3) KLT SN 16 (C.No.20) SC = AIR 2010 SC 2679); Municipal Committee, Hosiarpur v. Punjab State Electricity Board & Ors. (2010 (4) KLT SN 58 (C.No. 67) SC = JT 2010 (11) SC 615); and Bharatha Matha & Anr. v R. Vijaya Renganathan & Ors. (2010 (2) KLT SN 65 (C.No. 62) SC = AIR 2010 SC 2685) (See also- Kailash Paliwal v Subhash Chandra Agrawal ( 2013 (3) KLT Suppl. 60 (SC)= AIR 2013 SC 2923); and Laxmibai (Dead) thr. L.Rs. & Anr. v. Bhagwantbuva (Dead) thr. L.Rs. & Ors.,  (2013 (1) KLT SN 82 (C.No. 66) SC = AIR 2013 SC 1204).

20. Ram das Waydhan Gadlinge v. Gyanchand Nanuram Kripalani (2021) 4 KLJ 243 (SC).

21. K.Raj v. Muthamma (2001) 6 SCC 279 = AIR 2001 SC 1720; Roop Singh (dead) by LRs v. Ram Singh (dead) by LRs (2000) 3 SCC 708 = AIR 2000 SC 1485; Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor (1999 (1) KLT Online 942 (SC) = (1999) 2 SCC 471/AIR 1999 SC 864); Ragulavalasa Chiranjivi Rao v. State of A.P. (2009) 13 SCC 33; Jaskaran Singh v. Punjab Ministry of Home Affairs (2009 (4) KLT Suppl. 916 (SC)= (2009) 9 SCC 59); Kamla v. Gaurav Kumar Gupta (2009 (4) KLT Suppl. 807 (SC) = (2009) 13 SCC 253).

22. Santhosh Hazari v. Purushottam Tiwari (dead) by LRs. (2001 (1) KLT SN 74 (C.No. 90) SC = (2001) 3 SCC 179 = AIR 2001 SC 965.

23. Ratanlal v. Kishorilal (AIR 1993 Cal.144).

24. Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs. (2001 (3) KLT Online 1003 (SC) = (2001) 4 SC 262 = AIR 2001 SC 1273); Arjan Singh v. Kartar Singh 1951 SCR 258 = AIR 1951 SC 193; Sugani v. Rameshwar Das (AIR 2006 SC 2172); H.P Pyarejan v. Dasappa (2006 (2) KLT SN 82 (C.No.102) SC = (2006) 2 SCC 496 = AIR 2006 SC 1144); Hero Vinoth v. Seshammal (2006 (2) KLT OnLine 1119 (SC) = (2006) 5 SCC 545 = AIR 2006 SC 2234); Town Planning, Municipal Council v. Rajappaa (2008 (4) KLT Suppl. 78 (SC) = (2008) 2 SCC 593); Bakhtiyar Hussain v. Hafiz Khan (2007) 12 SCC 420 = AIR 2007 SC (Supp.) 947; Maria Colaco v. Alba Flora Herminda D’Souza (2008 (3) KLT Suppl.1466 (SC)= (2008) 5 SCC 268 = AIR 2008 SC 1965); Tallam Gangadharaan v. U Ismail Sahib (2009) 17 SCC 389; Dr. Ramnath Murti v. Ramappa (2010 (4) KLT Suppl. 115 (SC) = (2011) 1 SCC 158); SC Jindal v. UHBVNL (2011 (2) KLT Suppl. 61 (SC) = AIR 2011 SC (Supp.) 516); Shiv Cotex v. Trigun Auto Plast Pvt. Ltd. (2011 (3) KLT Suppl. 20 (SC) = (2011) 9 SCC 678).

25. Nagarajappa v. Narasimha Reddy (2021 (5) KLT Online 1137(SC) = AIR 2021 SC 4259.

26. Kshitish Chandra Purkait v. Santosh Kumar Purkait & Ors. (1997 (1) KLT OnLine 1077 (SC) = AIR 1997 SC 2517).

27. S.B.I. v. S.N.Goyal (2008 (2) KLT Online 1143 (SC) = (2008) 8 SCC 92 / AIR 2008 SC 2594).

28. K.K.Kannan v. Koolivathukkal Karikan Mandi (2010 (1) KLT Suppl. 159 (SC) = (2010) 2 SCC 239 = AIR 2010 SC (Supp.) 194).

29. G.Suryakumari v. B. Chandramouli (2010 (1) KLT Suppl. 160 (SC) = (2010) 2 SCC 254 = AIR 2009 SC (Supp.) 2133.

30. Banarasi Das v. Kanshi Ram (1963 KLT OnLine 1275 (SC) = AIR 1963 SC 1165 = (1964) 1 SCR 316).

31. Kanth Shri v. Munna (2010) 2 Scale 582.

32. Union of India V. Ibrahim Uddin & Anr.( 2012 (3) KLT SN 73 (C.No. 79) SC = (2012) 8 SCC 148).

33. Ram Prasad Rajak v. Nand Kumar & Bros. & Anr. (AIR 1998 SC 2730)

34. Tirumala Tirupati Devasthanams v. K.M.Krishnaiah ((1998) 3 SCC 331); State of Rajasthan v. Harphool Singh ((2000) 5 SCC 652); Rajappa Hanamantha Ranoji v. Mahadev Channabasappa & Ors. (AIR 2000 SC 2108); Santakumari & Ors. v. Lakshmi Amma Janaki Amma( 2000 (3) KLT SN 45 (C.No. 49) SC = (2000) 7 SCC 60); Satyamma v. Basamma (Dead) by LRs, ((2000) 8 SCC 567); Santosh Hazari v. Purushottam Tiwari, (2001 (1) KLT SN 74 (C.No. 90) SC = AIR 2001 SC 965); Kulwant Kaur & Ors. v. Gurdial Singh Mann (2001 (3) KLT OnLine 1003 (SC) = AIR 2001 SC 1273); M.S.V. Raja v. Seeni Thevar, (2001) 6 SCC 652; Hafazat Hussain v. Abdul Majeed & Ors., (2001) 7 SCC 189; V. Pechimuthu v. Gowrammal (AIR 2001 SC 2446); Neelakantan & Ors. v Mallika Begum (AIR 2002 SC 827); Md. Mohammad Ali (Dead) by L.Rs. v. Jagdish Kalita & Ors. (2003 (3) KLT OnLine 1239 (SC) = (2004) 1 SCC 271); Rajeshwari v. Puran Indoria ((2005) 7 SCC 60) and Bharatha Matha & Anr. v.R. Vijaya Renganathan & Ors. (2010 (2) KLT SN 65 (C.No. 62) SC = AIR 2010 SC 2685).

35. Mohamad Laiquiddin v. Kamla Devi Mishra (2010) 2 SCC 407.

36. State of Himachal Pradesh v. Milkai Ram (2007) 15 SCC 750.

37. Shivaji Balaram Haibatti v. Avinash Maruti Pawar (2017 (4) KLT OnLIne 2122 (SC)/(2018) 11 SCC 652).

38. Bismillah Be v. Majeed Shah (2017 (1) KLT OnLine 2117 (SC)/(2017) 2 SCC 274 / AIR 2017 SC 206).

39. M.C Hegde v. Vasudev D. Hegde (2000) 2 SCC 213.

40. Kunwar Lal v. Deva Bai (2004) 13 SCC 535.

41.BharathaMatha v. VijayaRenganathan (2010 (2) KLT SN 65 (C.No. 62) SC/(2010) 6 SCALE 53/ AIR 2010 SC 2685).

42. Kirpa Ram v. Surendra Deo Gaur (2020 (6) KLT 574 (SC) /2020 SCC Online SC 935).

43. Seethakathi Trust Madras v. Krishnveni (2022 (1) KLT OnLine 1128 (SC) = AIR 2022 SC 558 = AIR Online 2022 SC 34).

44. Balasubramanian v. M. Arockiasamy (2021 SCC Online SC 655); Kulwant Kaur v. Gurdial Singh Mann (2001 (3) KLT Online 1003 (SC) = (2001) 4 SCC 262) = AIR 2001 SC 1273); Union of India v. Ram Prakash (2010 (3) KLT Suppl. 36 (SC) = (2010) 7 SCC 93); Sheel Chand v. Prakash Chand (1998) 6 SCC 683/ AIR 1998 SC 3063.

45. Veerayee Ammal v. Seeni Ammal (2002 (1) KLT OnLine 1028 (SC) = (2002) 1 SC 134 / AIR 2001 SC 2920).

46. Ranjit Singh v. Jaimal Singh (2001) 10 SCC 474.

47. Udham Singh v. Ram Singh (2007) 15 SCC 728; United Church of Northern India v. Jibral Narjiary (2007) 15 SCC 728.

48. Deva v. Sajjan Kumar (2003) 7 SCC 481 = AIR 2003 SC 3907; Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003 (1) KLT OnLine 1131 (SC) = (2003) 2 SCC 91 = AIR 2003 SC 761); Sha Babu Lal v. Melaram (2002) 10 SCC 146. 

49. Ram Kishan Dalmia v. Justice Tendolkar (1958 KLT OnLine 1302 (SC) = AIR 1958 SC 538); and Mohammed Haneef Quareshi v. State of Bihar (AIR 1958 SC 731); Bhagwan Swaroop v. State of Maharashtra (1964 KLT OnLine 1278 (SC) = AIR 1965 SC 682).

50. Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999 (2) KLT OnLine 1006 (SC) = (1999) 3 SCC 732 = AIR 1999 SC 2213).

51. Padmanath Goswami v. Banamali Das (2004) 13 SCC 651.

52. S.B Minerals v.MSPL Ltd. (2010) 12 SCC 24 = AIR 2010 SC 1137.

53. Ramji Bhagala v. Krishnarao Karirao Bagra (1982) 1 SCC 433 = AIR 1982 SC 1223.

54. Jhanda Singh v. Gram Sabha of Village Umri ((1971) 3 SCC 980.

55. Hasmat Ali v. Amina Bibi ( 2021 (6) KLT 1167 (SC) = 2021 SCC Online SC 1142).

56.Ramlal v. Phagua (2006 (1) KLT SN 45 (C.No. 60) SC = (2006) 1 SCC 168 = AIR 2006 SC 623).

57. Aparsini (dead) through LRs v. Atma Ram (1996) 8 SCC 321= AIR 1996 SC 1558.

58. Brij Raj Singh (dead) by LRs v. Sewak Ram (1999) 4 SCC 331= AIR 1999 SC 2203; Karnataka Board of Wakf v. Anjuman -E-Ismail Madris -Un-Niswan (1999 (3) KLT SN 39 (C.No. 39) SC = (1999) 6 SCC 343 = AIR 1999 SC 3067).

59. Ram Kumar Agarwal v. Thawar Das (dead) through LRs (1999 (3) KLT SN 39 (C.No. 39) SC = (1999) 7 SCC 303 / AIR 1999 SC 3248).

60. Veerayee Ammal v. Seeni Ammal (2002 (1) KLT OnLine 1028 (SC) = AIR 2001 SC 2920); Saraswati Devi Gupta v. Harnarayan Johri (2006) 1 SCC 729; Ramlal v. Phagua (2006 (1) KLT SN 45 (C.No. 60) SC = (2006) 1 SCC 168 = AIR 2006 SC 623); Haryana State Industrial Corporation v. Corporation Mfg.Co.(2007) 8 SCC 120, Shakuntala v. Lt. Col.Mukhtiyar Singh (2008) 11 SCC 42, Madan Kishore v. Major Sudhir Sewal (2008) 8 SCC 744= AIR 2009 SC (Supp.) 978; Shyam Lal v. Sanjeev Kumar (2009 (3) KLT Suppl. 307 (SC) = (2009) 12 SCC 454 / AIR 2009 SC 3115); Waheed Baig v. Bangi Lakshmamma (2008) 14 SCC 435; United Church of North India v. Jibhral Narjinary ((2008) 15 SCC 728).

61. Guran Ditta v. Ram Ditta (AIR 1928 PC 172/55 IA 235 / ILR 55 Cal.944).

62. Kochukakkada Aboobakkar v. Allah Kasim (1996) 7 SCC 389 = AIR 1996 SC 3111; Neelu Naarayani v. Lakshmanan (1999) 9 SCC 237 ; Santaakumari v. Lakshmi Amma Jaanaki Amma (2000 (3) KLT SN 45 (C.No. 49) SC = (2000) 7 SCC 60 = AIR 2000 SC 3009); Hero Vinoth v. Seshammal (2006 (2) KLT OnLine 1119 (SC) = (2006) 5 SCC 545 = AIR 2006 SC 2234).