A Note of Dissent
By Executive Committee, KHCAA
03/07/2006
A Note of Dissent
(By Executive Committee, Kerala High Court Advocates Association)
The Executive Committee of the Kerala High Court Advocates Association wish to place on record its dissent on some of the incorrect statements in the article ‘Judicial Grand Canyon’ published in the journal section of Part 12 of Kerala Law Times dated 18th September in 2006 (3) KLT, as the said statements are likely to mislead the readers.
The article tends to give the impression that the Lawyers are a hapless lot in the High Court without access even to basic amenities. The Lawyers are provided with all basic amenities and the tube well referred to in the article was erected as agreed to by the Association and as the quality of the water was not upto the mark immediate orders were issued by the Chief Justice, as per which drinking water connection had been provided. Sufficient number of modern water purifier cum coolers are installed at various floors in the High Court building and the Advocates Association has its own water purifier with hot and cold water facility in its premises. The Association also has been allowed to have sufficient number of coffee and tea vending machines at places of their choice. Cooking using charcoal and firewood alone are prevented in the canteen located in the main building on account of excessive smoke that is likely to activate the fire alarm system. In addition to the cafeteria in the new building complex the Association has a full fledged canteen run by the Indian Coffee House in the old Association premises in the adjacent compound.
Initially, though vehicles were not permitted to be parked in the new High Court premises, as requested by the Association, the entire front compound of the new building has been exclusively allotted to lawyers for parking of vehicles. Advocate General and other State officials have been provided with space for parking their vehicles. The parking space provided in the new High Court building complex is in addition to the entire car parking area available to the Advocates in the old association premises in the adjacent compound.
The intention of the learned author being too obvious, the Executive Committee do not wish to question the same. The opinion of the author does not represent or reflect the collective opinion of the lawyer community in the High Court or that of the Advocates Association. Let not truth be a casualty in vituperative outbursts.
We wish the pages of renowned law journals are put to better use.
Silencing is not Golden
By K. Ramakumar, Advocate, High Court of Kerala
13/06/2006
Silencing is not Golden
K. Ramakumar, Advocate, HC
Who does most of the talking part in Courts of Law? Traditionally Counsel. He formulates the facts, labours hard on law reports, lays up legal issues arising and cites case law in support. Opposing lawyers also do like-wise. Green horns in the Bar lend their ears in admiring attention, training their eyes to be watchful and learn to be “learned and noble”. The legacy lingers on. For years, centuries.
Regretfully, No - not any longer. Today, quite often the moment Counsel stands up he is told to make up his mind whether he withdraws the case or face dismissal. The indiscreet, attempts feeble protests and lands up in heavy costs. The “successful” bends his back and bows in assent wearing a servile smile too. The bewildered are too benumbed even to bemoan. Any lawyer will feel fantastically flattered of his forensic-skills when told to argue the appeal itself standing up for admission of a death reference. What better testimony such lawyers need when the registry of the Court where he practices puts up a referred trial with less than twelve hours’ notice eminently trustful of the superior skills of the lawyer? Is the life and liberty of a fellow being too trifling to be a matter of minutes? What kind of advocacy can then the young entrants in the Bar watch, learn and emulate?
Constitutional functionaries are entitled to enjoy their mighty power, albeit, coupled with a duty to the people, which is what was reminded by Chief Justice Katju the illustrious grandson of a great lawyer and patriot Kailasanatha Katju, that Judges are servants of the people and not their masters. Come functions and festivities, Lawyers suddenly become sides of the same coin, soon to be foreshortened and footled. Smothering the lawyer’s voice is really jarring the signature tune of the supreme document of the country, guaranteeing the citizens the services of a counsel. It will be the beginning of the end of law from Law Courts and subversive of the rule of law.
Is this the profession to which once belonged the brilliant Bhulabhai Desai, the silver toungued Sir CP, Alladi, Ashutosh Mukerji, Jamshedji Kanga and Nani Palkiwala? From whom shall the fledgling lawyers learn lawyering skills? Not all lawyers are lucky to be engaged only in appeal pending cases, police protection or representation disposal cases. Many of them are also not capable of falling within the “Neelakurinji” variety with forensic-skills flowering once in five years only to resurface again after an interval of another five years. (Neelakurinji is a rare variety of blue flower in Munnar Hills that blossoms once in twelve years). Surprisingly still, there are some, foolish, old fashioned and orthodox, who devil for their seniors, spend sleepless nights, toil with text books, draft crafty pleadings, emulate their worthy seniors and eventually step into their shoes.
Is this vanishing variety, a set of sinners? Lawyers who parade thick books, arrogantly arguing substantial questions of law, kill joys of statistics, cantankerously relying on constitutional provisions, copiously quoting from the Code of Civil Procedure, wet-blankets wasting time on Wednesbury unreasonableness, proportionality and Professor Wade, and engaging themselves in unwelcome persuation, citing cases like Brind, Pinochet, Schmidt, etc.
It looks they are. The brilliant and best from prestigious Law Schools with their stylish English, starts hearing from day one expressions like “eviction of a building”, “recordical evidence” and “today moving”, check up with their elementary school grammar books, soon to be disillusioned and deciding on desk jobs than developing orality and drop out from a “noble and learned profession”. They feel alarmed at the everyday assault on an alien language, which had to struggle for survival in its own country against Latin and Roman.
Brothers and Sisters of the Bar! Is this the path through which, the profession to which you proudly belong shall tread? A profession to which three Nation builders -Gandhi, Lincoln and Lenin belonged. A profession adored, as occupied only by the honest, the learned, the noble, the fearless and the forthright.
If you think, No, equip yourself, assert yourself, awaken and empower the weak, Earn the accolades or at least the gratitude of the less fortunate millions who need you and your services.
S. For Suryanarayanaiyer
By T.P. Kelu Nambiar, Sr. Advocate, High Court, Ernakulam
22/05/2006
S. For Suryanarayanaiyer
(By T.P. Kelu Nambiar, Senior Advocate, High Court of Kerala)
The subject ie more important than the topic.
A few days ago, I woke up at an ungodly hour, for I had an epiphanic flash of KVS on the pathway of memory. Therefore, there is an important thing left for me to do; and I should do it here and now: To praise KVS, the big-ticket yesteryear lawyer.
“Dear young friends, I am here, this evening, to convey you my love and affection on the occasion of your leaving this great institution, and to take back those of yours as a memento”. That was the voice of Advocate Sri K.V. Suryanarayana Iyer, as Chief Guest, on the occasion of the valedictory function, in March 1947, held at the Calicut Christian College, for the final year Intermediate students, whereof I was one. So beginning, KVS delivered his address, for over half-an-hour, in error-ridden, correct, elegant and stylish language. He seemed to combine humility and excellence.
Next time I saw KVS, was in 1955 in the Madras High Court, appearing in, what was known as, the Malabar Tenancy Reference Cases. I was also in those cases as a fledgling junior to Advocate Sri A.Achuthan Nambiar.
The third time I saw KVS, and continued to see him, was in 1956 as Advocate-General of the State in the High Court of Kerala, whereto I had shifted from the Madras High Court on the eve of the re-organisation of the States.
I know of no other instance where a lawyer practising in the mofussil courts was appointed straight-away as the Advocate-General of the State. It is an excellent truth to say that in those days one used to recite S, for Suryanarayanaiyer, the front-line lawyer. His legal acumen and knowledge of English literature are complementary in perfecting his advocacy.
The State was just born when KVS took charge of office of Advocate-General of Kerala. The Constitution of India was only six-year-old at that time. A mofussil lawyer, till then following made-in-England jurisprudence, adorning a high Constitutional office, was prone to be thought as an anachronism and an abomination. But KVS was prepared to face the daunting challenge. He did not secure the high office through any influence pedlar. He proved the truth of the maxim that he who chooses God, has already been chosen by Him. KVS decided to climb mount improbable; and, he emerged a prover, even before the zero-hour; of, the law reports.
KVS was a dominant intellectual force in those days. He had a busy life from Friday to Friday; and was his generation’s premier advocate, who had the ability to impose himself. He was not in the category of often fallible, occasionally brilliant, lawyers. He had full control of his words and thoughts. He used to come to court gamboling like a spring lamb.
KVS was a symbol of sustained excellence for over fifty years in the field of law, one in the long bar of stars. Hie style was clarity in presentation. It was a pleasure to hear his sophisticated arguments. He did not indulge in “one-size fit-all” advocacy. He was a lawyer who defied stereotype. His style of argument defied imitation. He injected life into a case approaching rigor mortis by arguing legal questions admirably. His method was domination and submission. He shunned rough justice. I could not understand how he could do all the filings he did. The life of a true lawyer is long hours and hard graft. Those were not days of laptop life-style. He used to be confined in his chamber as an aquarium fish. He had gargantuan appetite for learning. His memory worked like an Internet search engine.
I had the opportunity to assist him in a few cases of senior engagement. Those were occasions for me to learn that character is a pre-requisite for greatness. As a senior, he did not breathe fire, but breathed smile. Briefly and simply, he was a senior who had learned to listen. He was indistinguishable from his lawyer’s office. He never practised ‘punditocracy’. He used to come out of his comfort zone and fight for the client. I am not exaggerating, for human beings tend to exaggerate most when we are taking about ourselves. KVS was critical of painfully ineffective and pathetically error-prone arguments. According to him, a lawyer should be able to express in writing also.
Kunissery Vaidyanatha Iyer Suryanarayana Iyer, was the name in full of KVS. After graduation, he worked as a teacher for some time in the Nurani Hindu High School, Palghat. But soon, he responded to the call of “Home Rule” by Annie Beasant and joined the Theosophical Society. It was thereafter that he took his Law Degree and started practising. He was the President of the Sankara Theosophical Society, the Kerala wing of the Theosophical Society, till his death.
“His merits were universally recognised, but what even his most fervent admirers might not have quite anticipated was the way in which, after becoming the first Advocate-General of this State, he tackled the most complicated constitutional questions, questions which do not normally come before what is called a mofussil court, and, before the Constitution, but rarely before a High Court - I am referring in particular to the jurisdiction under Article 226 of the Constitution - with such consummate skill that he was able to hold his own with the mightiest in the land”. So said Chief Justice Sri P.T.Raman Nayar in his obituary reference when KVS died in July 1970. Mourning his death, the Kerala Law Times wrote: “Many reported decisions remain as standing monuments of his talents, erudition and profound knowledge in all branches of law”.
We have today with us Senior Advocate Sri C.M.Devan, who was to KVS, what Hastamalaka was to Aadi Sankara. According to Sri Devan, KVS was an old man with a young heart; and was born to win; and had the mental sharpness of an accomplished chess Grandmaster.
Da Vinci Code Sets Out Clean
By V.K. Babu Prakash, JFCM, Kollam
10/04/2006
Da Vinci Code Sets Out Clean
(By V.K. Babu Prakash, Judicial First Class Magistrate, Kollam)
The Da Vinci Code, the world wide best seller novel written by American author Dan Brown has been set clear by the U.K. and U.S courts against the allegation of copy right violation and plagiarism. The book sold more than 40 million copies and has been translated into 44 languages. The immediate rival novel which sells along with the sale of Da Vinci Code is The Alchemist written by the Brazilian writter Paulo Coelho which sold 35 million copies and has been translated into 51 languages.
The plot of the novel Da Vinci Code involves a conspiracy by the catholic church to cover up the story of Jesus Christ. The novel has helped generate popular interest in speculation concerning the Holy Grail legend and the role of Mary Magdalane in the history of Christianity. The book concerns the attempts of Robert Langdon, Professor of Religious Symbology at Hardvard University, to solve the murder of renowned curator Jacqes Sauniere of the Luvre Museum Paris. The title of novel refers among other things to the fact that Sauniere’s body is found in the denon wing of Luvre naked and posed like Leonardo da vincis famous drawing the Vitruvian Man with a cryptic message written beside his body and a pentagram drawn on his stomach in his own blood. The interpretation of hidden message inside Leonardo’s famous works including the Monolisa and the last supper figure prominently in the solution of the mysterious plot developed in the novel. The main conflict in the novel revolves round the solution of two mysteries:
What Secret was Sauniere protecting that led to his murder?
Who is the master mind behind his murder?
The unraveling of the mystery requires the solution to a series of brain teasers, including anagrams and number puzzles. The solution itself is found to be intimately connected with the possible location of the Holy Grail and to a mysterious society called the priory of sion, as well as to the Knights Templar. The catholic organization Opus Dei also figures prominently in the plot of the book. The Secret Society priory of Sion keeps the Secrets of the Holy Grail as follows. That Holy Grail is not a physical chalice but a woman namely Mary Magdalene who carried the blood line of Christ. The Grail relics consist of the documents that testify to the blood line as well as the actual bones of Mary Magdalane. The Grail relics were hidden by the priory of Sion in a secret crypt perhaps beneath Rosslyn chapel. That Mary Magdalane was a royal descent and the wife of Jesus. That she was a prostitute was a slander invented by the church to obscure the true relationship. The existence of the bloodline was the secret that contained in the documents discovered by the crusdaders after they conquered Jerusalem in 1099. The priory of sion and the kinghts templar were organised to keep the secrets. Eminent persons like Lenardo Da Vinci, Isac Newton etc. were members of priory of sion. That Lenardo Da Vinci was a member of the secret socity who knew the secret of the Grail. The secret is indeed revealed in, the Last Supper in which no actual chalice is present at the table. The figure seated next to Christ is not a man, but a woman who is his wife Mary Magdalane. The Monalisa is actually a self portrait of Leonardo as a woman. The androgyny reflects the sacred union of male and female which is implied in the holy union of Jesus and Mary Magdalane. The name Monalisa is actually an anagram for “Amon Lisa” referring to the father and mother Gods of ancient Egypt (namely Amon and Isis).
While the book was shaking the market of the three continents far and wide a suit was filed before the American Court by the writer Lewis Perdue who wrote the book, The Dan Vinci legacy and Daughter of God. Perdue challenged the authenticity of the idea and imaginations in Da Vinci Code as that of Dan Brown and alleged copy right violation and plagiarism. In 2006 February two writers Michael Baigent and Richard Leigh followed perdue and attacked Dan Brown and his prodigious book, Da Vinci Code on the ground of copy right breach and plagiarism in a British Court. All the three writers alleged that the idea of Holy Grail and Holy blood exalted by Dan Brown are their ideas and imaginations and Dan Brown simply copied them in Da Vinci Code making a different plot of suspense in it. Dan Brown took the defence that his book contains tremendous research materials of history which cannot be plagiarised. On 7.04.06 the British Judge Peter Smith rejected the copy right infringement claim of Michael Baigent and Richard leigh. Before that in 2005 the other suit was also dismissed there by Dan Vinci Code was set clear from the black cloud of plagiarism. Perdue preferred appeal which was also dismissed in the last week of April 2006 by the Appellate Judge, Newyork Appeal Court.
Exemption of Wakf Property from Rent Control Law -- Some Dismal Trends
By M. Mohammed, Advocate, Kozhikode
03/04/2006
Exemption of Wakf Property from Rent Control Law -- Some Dismal Trends
(By M. Mohammed, Advocate, Kozhikode)
The Concept of Wakf
Islam encourages permanent dedication of property, movable and immovable, by individuals and groups for religious, pious and charitable purposes. Such permanently dedicated property is called Wakf property. The Law of Wakf deals with utilization and management of such property which has attained the characteristics of public property by its nature and use. The concept Wakf shows a square inch of islamic concept of property. Basically and essentially, Islam believes that all properties belong to the Almighty. Even if a man owns property, he has no right to misuse it. All the more so in the case of social or national wealth. Nobody has the right to take undue advantage of public property.
This ideological perspective is given practical shape in the Wakf Law. The utilisation of property shall be for achieving welfare in material and spiritual planes. The philosophy of Qura’n insists prudent spending of money and use of property, and declares that in the wealth of man, there is due share for the beggar, the deprived, the orphans and the wayfarer. An associate of Prophet Muhammad approached him seeking guidance as to how best he could make use of piece of a land he acquired. Prophet is reported to have said: “Tie up the corpus of the property; devote its usufructs to the needy; it shall not be sold or gifted or subjected to inheritance; spend the income derived therefrom in the way of Allah”. The Manager of the Wakf is called “Mutavalli”, but property is not vested in him. He is not a trustee of the property, but only a procurator as observed by the Judicial Committee in Jewundoss Sahoo v. Shah Kubeer - oddin (1840) 2 MIA 390.
Law Governing Wakf:
In India Wakf has a tradition about 800 years. Taj Mahal is a telling instance of Wakf. All over India there is great accumulation of Wakf properties permanently dedicated over centuries. The process is continuing and will continue for ever. Legal protection is necessary for such massive and enormous wealth dedicated for religious and charitable spending. In India we find several legislations before independence and after independence. Section 36 of the Central Wakf Act, 1995 provides, among other things, requirement of registration for Wakf properties.
Tax exemptions are given by various Governments in the case of Wakf properties in public interest. Notification issued by the Government of Kerala under S.25 of the Kerala Building. (Lease and Rent Control) Act, 1965 is an example. S. 25 reads as follows:
“25. Exemptions (1) Notwithstanding anything contained in this Act the Government may, in public interest or for any other sufficient cause, by notification in the Gazette, exempt any building or class of buildings from all or any of the provisions of this Act....”
By Notification G.O. (MS) 229/81/PW. Dated 10.12.1981 (SRO 47/82) buildings owned by Wakf registered under the Wakf Act with the Kerala Wakf Board is given exemption from all provisions of the Kerala Buildings (Lease and Rent Control) Act. SRO No. 47/82 is as follows:
“SRO No. 47/82: In exercise of the powers conferred by sub-s. (1) of S. 25 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965), the Government of Kerala hereby exempt in public interest the buildings owned by the Wakf registered under the Wakfs Act 1954 (Central Act 29 of 1954) with the Kerala Wakf Board from all the provisions of the said Act”.
The meaning and content of the word “owned” appearing in the Notification have been subjected to Judicial scrutiny. In some Judgments its scope has been narrowed down to the detriment of Wakf. On the other hand, the other religious institutions enjoy greater benefits when compared to Wakf. As per G.O.(MS) 14/92, dated 7.3.1992 (SRO No. 435/92) the Government of Kerala exempted in public interest buildings of all churches/mosques of all minority religions from the provisions of Ss.4, 5, 7, 8, 11 and 13 of the Kerala Buildings (Lease and Rent Control) Act 1965. The Government of Kerala also exempted in public interest buildings owned by temples, devaswoms etc. by separate Notifications. The object and purpose of these Notifications are clear enough. The exemption Notifications aims to give freedom to Wakf and other religious institutions to evict tenants who are not prepared to pay the market rent. In the absence of such a provision, these institutions will suffer loss and the tenants will harvest undue benefit by giving nominal rent under the umbrella of rent control legislation. A Full Bench of the Hon’ble High Court of Kerala has pointed out that “without understanding the real nature of the word ‘wakf’ it may be difficult, if not impossible, to find an answer to the question relating to such exemptions. A reference in this connection to the observations of the Judicial Committee in Vidyavaruthi v. Balusami Ayyar, (1921) 48/I A. 302 may be useful. The Judicial Committee declared that the wakf owes its origin to a rule laid down by the Prophet of Islam and means ‘the tying up of property in the ownership of God the Almighty.”
Recent Judicial Trends
The recent judicial trends, however, demonstrate that certain notions alien to the concept of wakf seem to have taken upper hand in the decision making process. This led to an interpretational hazard in relation to property purchased and owned by Wakf. This needs to be corrected in appropriate future cases or by amending the Notification incorporating clarificatory provisions with retrospective effect. It has been held in recent cases decided by the Hon’ble High Court of Kerala that benefit of the Notification could be claimed only in regard to properties which are “permanently dedicated” as wakf and properties which are entered in the Wakf Register. The satisfaction of these twin conditions is really unwarranted. One does not find any such requirement in the Notification (SRO No. 229/1981). All properties owned by the Wakf are certainly and indubitably entitled to the benefit of the Notification irrespective of the limitation newly brought in through judgments. In some cases it has been held that even registration before the Wakf Board will not be a conclusive evidence to show that the property is a wakf property. These requirements creates hurdles in the way, so as to make the Notification a dead letter in many a case. If the object of the Notification is taken into account, there is no need for limiting the scope of the Notification in the case of Wakf. The observations of a Full Bench of the Hon’ble High Court of Kerala in Lakshmanan v. Mohammood (1992 (1) KLT 85 F.B.) dealing with the circumstances leading to the issuance of the Notification is noteworthy in this context. The Court observed:
“It should in this connection be remembered that if the market rent is paid by the tenants no Wakf would evict them. Not only that the Wakf may desire eviction of the tenants for the purpose of carrying out major or substantial repairs and for the purpose of demolition and reconstruction and this can be had only if the Wakfs are able to effect eviction without being required to fulfil the onerous conditions prescribed by the various provisions of the Act and required to be complied with by the landlord when they seek eviction for such purpose. So in our view the total exemption granted to such buildings by the impugned Notification is perfectly justified.”
Objects and Purpose
In arriving at these conclusions the object of the Notification was adverted to by the Full Bench. The objects reproduced in the judgment are:
“The Kerala Wakf Board stands notified as a public authority for the purpose of the Kerala Buildings (Lease and Rent Control) Act, 1965 vide Notifications No. 54792/B2/65/PW. Dated 1.1.1996. By virtue of this Notification, the Wakf Board can evict its tenants from the buildings owned by it without applying the provisions of the Rent Control Act. But this procedure applies only to the buildings of which the Wakf Board is the landlord. The buildings owned by the various Wakfs registered with the Wakf Board are not covered by the above Notification. The Secretary, Kerala Wakf Board has therefore requested to exempt all the buildings owned by the registered Wakfs from the provisions of the Act. Government of India also have requested to exempt all types of Wakf properties from the application of the Rent Control Act “since Wakf properties are for charitable purpose”. Government have accepted the request. The Notification is intended to achieve the above object”.
The Question At Issue
It is submitted that the Wakf institutions may have properties permanently dedicated as Wakf as well as properties purchased by the institution in the name of the Wakf and for utilization of the Wakf. However, properties purchased by Wakf is treated outside the purview of the Notification. The intention of the Notification is to give benefit of exemption for both kinds of Wakf properties. No doubt both properties are owned by Wakf. In the case of other institutions there is no such denial of exemption. The word ‘owned’ used in Notification SRO No. 47/82 must be given same meaning for the word appearing in similar Notification governing temples, devaswoms and churches etc. If we go through the similar Notifications issued in the case of Paramekavu Devaswam (SRO 1045/85), Thiruvamabadi Devaswom (SRO 681/83) Koodalmanickam Devaswom (SRO 1347/88), Travancore Devaswom (SRO 918/82) and Notification issued in the case of churches, diocease etc., we do not find any logic or reason for curtailment of the exemption in respect of Wakf by way of imposing conditions or limitations which are not contemplated by the Notification. When Wakf institution purchase the property with its funds the property is ‘owned’ by the Wakf and such properties are entitled to claim the exemption from the provisions of the Kerala Buildings (Lease and Rent Control) Act by virtue of the Notification. The judicial rulings lead to anomalous position and works injustice in the case of Wakf in relation to properties purchased by using its fund.
Need For Review
The view adopted in some Judgments relating to eviction of Wakf property are contrary to the well known principles of statutory interpretation as well. The Supreme Court has held in P.V.Narasimha Rao v. State (1998) 4 SCC 626 and other recent cases that while interpreting a provision, it is necessary to look into the text and the context of the statutory provision. For interpreting a provision, statement of objects and reasons and even debates on the floor of the Legislature can be looked into. In B.R.Enterprises v. State of Uttar Pradesh ((2000) 120 STC 302), the Supreme Court has observed that interpretations spring out because of the concern of the Court to salvage a legislation to achieve its objective and not to let it fall merely because of possible ingenious interpretation.... Courts have taken help consistently from the preamble, objects and scheme of the Notification or legislation. The interpretation based on the object is considered to be the golden rule of interpretation. Accordingly Court must look into what was the law before, what was the mischief for which the then law did not provide, what was the reason to remedy that mischief by the new provision. Looked at from this angle, the twist and twin given to the word ‘owned’ while deciding the cases of Wakf is regrettable indeed. This exercise amounts to adding words to a statutory provision which are not there. The Court has no power to supply words which are not there and come to decision on that basis. Judicial intervention is therefore needed to liberate the Wakf from its partial disablement caused by such interpretation. It is submitted that all properties of the Wakf must be eligible for exemption. Otherwise it will defeat the loadable purpose of the Notification, besides causing discriminatory treatment.
The narrow construction of the Notification must give way to an interpretation that advances the object sought to be achieved. The key to interpretation today is purpose oriented. Those who decide disputes shall not be mere technicians searching for narrow walls between the lines of the law. They must acquaint themselves with the policy and philosophy of the legal provisions for its precise application.