Conflict of Two Special Acts

(By Sajeer H., Section Officer, Law Department, Govt.Secretariat,Thiruvananthapuram)

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019 was promul-gated by the President for the protection of the rights of married Muslim women and also to prohibit divorce by pronouncing talaq and for all the matters connected therewith and incidental thereto. This ordinance declared that the pronouncement of talaq is void and illegal. On going through this ordinance, its clauses were in conflict with the existing similar laws. It can be seen that the Chapter II and Chapter III of the Ordinance are mutually contradictory. Besides, the provisions of this Ordinance are also in conflict with three special Acts such as, The Muslim Marriages and Divorces Registration Act 1974, The Dissolution of Muslim Marriages Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986.

Muslim matrimonial disputes are governed by the Muslim Marriages and Divorces Registration Act 1974, The Dissolution of Muslim Marriages Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986 and The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019. All these laws except the Muslim Women (Protection of Rights on Marriage) Ordinance permitted the Muslim husbands to pronounce talaq upon their Muslim wives.

In Clause 3 of The Muslim Women (Protection of Rights on Marriage) Ordinance, 2019, it is seen that “any pronouncement of talaq by a Muslim husband upon his wife, by words either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. That means whoever pronounces talaq upon his wife, that talaq will not stand in the way of the marital status of the parties and so their marital bondage will continue as what it persists.

Chapter III of the Ordinance is titled as “Protection of Rights of Married Muslim Women”. If we go through the legislation as such then the title is not apt and suit. The legislature intentionally uses the term “married”. That means, if a Muslim lady heard the pronouncement of talaq from her husband, that whisper is to have a waterline effect and that words will not stand in the way of her marital status. Therefore she is called the married Muslim Women and not a talaq lady. But clauses 5, 6 and 7of the ordinance giving certain rights to her, as in the case of a divorced lady, in contrary to the title word as “married”.

Clauses 5 and 6 of the Ordinance are fully against the wordings in clause 3. Because clause 3 prohibits the pronouncement of talaq and if it done the husband is liable to be punished for a term of three years and the talaq became void. If the talaq declared to be void then the marital status of the lady continues as married and the lady cannot be called as divorcee. That means the pronouncement of talaq would have a value of mere pronouncement and not a valid offer of divorce. Hence the lady, who denies and resist talaq, shall not be eligible for payment of subsistence allowance, as and when their marriage had been validly and legally prevailed. Clause 6 allows the talaq lady to claim custody of her minor children. If the talaq is not accepted and declared as void and irregular, then there will not arose a question of custody of minor children to the lady before a court of law.

Clause 7 of the Act says that an offence punishable under this ordinance shall be cognizable and compoundable. Clause 7(b) says that an offence punishable under the ordinance shall be compoundable at the instance of the married women upon whom talaq is pronounced with the permission of the Magistrate on such terms and conditions as he may determine. Clause 7(C) reads, no person accused of an offence punishable under this ordinance shall be released on bail unless the magistrate after hearing the married women upon whom talaq is pronounced and also satisfied that there are reasonable grounds for granting bail to such person. Here on a joint reading of these sub-clauses it is to be realised that the magistrate has the supremacy over the matrimonial issues by over reaching the supremacy of the Family Court .Moreover the lady shall be heard before granting bail to the Muslim husband who alleged to have committed the offence of pronouncement of talaq upon his Muslim wife. The legislature ought to have considered that, it is the common practice in family court and magistrate court in matrimonial issues that the whimsical ladies falsely alleging statements against their husbands and their relatives, in order to drag them towards their untenable moves. The ladies can move to the nearest police station and to lodge complaints alleging the pronouncement talaq by her husband orally. The SHO has no authority, under this Act, to make a preliminary enquiry, than to move with the complaint. He used to mechanically arrest the husband and proceed against him on the basis of the sole testimony of the wife. As and when he arrested his bail application shall not be entertained unless the lady is to be given an opportunity of being heard. If the lady refuses to move to the court with her case then the husband has to wait behind bars at the mercy of his wife, for obtaining bail. Whenever the husband defuses the case of the lady, then only he got bail from the court of law.

The Muslim Women (Protection of Rights on Divorce) Act Section 2 (a) defines divorced women means a Muslim woman who has married according to Muslim law and has been divorced by or obtained divorce from her husband in accordance with Law. Here it means that a Muslim woman get divorce from her husband in accordance with Muslim law. Muslim law permits the husband to pronounce talaq upon his wife. It also mandates that if a lady wants a divorce from her husband then she can obtain it from her husband by pronouncement of talaq upon her. It is the statutory right of a Muslim lady who can obtain a divorce from her husband and can get it registered under Muslim marriages and divorces (Registration) Act 1974.

Section 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act reads that notwithstanding anything contained in any other law for the time being in force a divorced women shall be entitled to a reasonable and fair provision of maintenance, to be made and paid to her along with the iddat period by her former husband. Section 3(l)(b) says that where she herself maintain the children born to her before or after her divorce a reasonable and fair provision of maintenance to be made and paid by her former husband for a period of two years from the respective date of birth of such children. On going through the above sections it can be seen that the husband has the mandate to provide divorce to his wife. That means the law permits the husband to pronounce talaq to his wife, but to provide reasonable and fair provision of maintenance to his wife and children.

Section 2 of the Dissolution of Muslim Marriages Act, 1939, clearly mentioned about the grounds for obtaining divorce from a husband of a Muslim lady. But no provision of the same has declared unconstitutional after the enactment of Muslim Women (Protection of Rights on Divorce) Act. In Danial Latifi v. Union of India (2001 (3) KLT 657 (SC)) the honourable Supreme Court has declared that the provisions in the Muslim Women (Protection of Rights on Divorce) Act are not unconstitutional. That means a Muslim husband can validly pronounce talaq upon her wife.

Facts being so, the newly enacted Ordinance prohibit the pronouncement of talaq by a Muslim husband towards his Muslim wife. If it is done it is void and illegal and the husband who pronounced talaq shall undergo penal consequences as per clause 4 of the Ordinance. But the pronouncement of talaq is not a penal provision in the Muslim Women (Protection of Rights on Divorce) Act and it is permissible. The ordinance directed the Muslim husbands to pay subsistence allowances to the talaq ladies; Muslim Women (Protection of Rights on Divorce) Act directed them to claim reasonable and fair provision of maintenances.

Therefore, The Muslim Women (Protection of Rights on Divorce) Act 1986 and Clause 3 of the Muslim Women (Protection of Rights on marriage) Ordinance, 2019 were in conflict with each other. If a special statute is in conflict with a general statute then the special statute will prevail is the rule inGeneralia Specialibus Non Derogant. But if two special statutes were in conflict, then what will be the result? The court has to intervene and to declare any one will prevail over the other. Or else, the legislature may take up the matter and repeal any of the eclipsed provisions in the statutes in order to fill up the lacuna.

Contract for Sale Whether Creates ‘Charge’ Over the Property

(By P. Biju, Advocate, Nedumangad, Thiruvananthapuram)

1. Transfer of Property Act is the law which governs the transfer of properties in India. The property under T.P. Act includes properties of any kind as stated in S.6 of the Act i.e., it includes both movable and immovable. Transfer may be transfer of ownership, transfer of possession or transfer of any other interest which the transferor has over the property. There are many modes to transfer properties. Sale, gift, lease, mortgage and exchange are the modes of transfer. Out of the said modes transfer by sale and contract for sale of immovable properties are the topics I intent to discuss. Specific Relief Act, Limitation Act and Contract Act are also relevant for the discussion.

2. Sale and contract for sale are defined u/S.54 of the T.P. Act. From the definition of sale it can be seen that S.54 deals with sale of immovable property only and ownership over the property alone is transferred by such sale. It is not stated in the definition that the possession of property is also transferred on sale by the seller to the buyer. At the same time it is stated in S.55(1)(f) of the Act that possession should be asked by the buyer from the seller after purchase of ownership of the property and if so asked the seller shall give possession. S.55 describes the rights and liabilities of the buyer and seller with respect to the property sold. Getting possession is one among such a right available, after sale, to the buyer and one among such liability cast upon with the seller, after sale took place. A reading of Ss.54 & 55(1)(f) together will make the point clear that sale of immovable property does not include passing of possession also and possession will be passed to the buyer by the seller on request u/S.55(1)(f) of T.P. Act.

For ready reference S.55(1)(f) is extracted below.

S.55(1). The seller is bound:

(a) to (e) ******

(f) To give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits.

3. That means handing over possession is not the ingredient of sale but is only incidental to sale, that tooonly if the buyer so requests. So, when one person sold immovable property to another, it does not legally mean to say that possession is also handed over. That is why while drafting sale deeds words which shows handing over possession is worded specifically and separately to show that possession is also handed over.

4. Then what doescontract for sale means? It is also described in S.54 of the T.P. Act. Contract for sale is a document by which the buyer will get right to purchase a property and the seller became bound to sell it. Usually the seller will execute sale deed to the buyer as stated in the contract for sale. But there may be circumstances where one party is willing and the other party is unwilling to perform their respective part. Then the provisions of T.P. Act, Specific Relief Act, Limitation Act and Contract Act start to function.

5. If the seller decline to execute sale deed as per the terms of the contract, though the buyer is ready to purchase, the buyer may file suit for specific performance as provided under Chapter -II of Specific Relief Act. When such a suit is filed prayer for possession is to be asked separately which is prescribed u/S.22(1)(a) r/w 22(2) of the Specific Relief Act. The suit if decreed in his favour the seller has to execute sale deed and then pass possession to the buyer. If the seller did not execute the sale deed even after decree and where the buyer pays the purchase money before court, the court will execute the sale deed in favour of the buyer as provided u/S.28(3)(a) and cause delivery of possession as provided u/S.28(3)(b) of Specific Relief Act. These provisions also say that passing possession will take place after sale.

6. So, the buyer may get sale deed in his favour through any of the three modes i.e., [1] sale deed by the seller voluntarily, [2] sale deed by the seller himself under obedience of decree for specific performance, [3] sale deed by the court in case of disobedience of decree by the seller. Whatever is the mode, once a sale deed is executed in favour of the buyer, he has a right to ask for possession. If the seller voluntarily executes sale deed, the buyer should ask for possession to the seller himself u/S.55(1)(f). If the buyer gets sale deed by the court u/S.28(3)(a) of Specific Relief Act he has a right to ask for possession before the court itself u/S.28(3) of Specific Relief Act. All these provisions affirm the importance of asking for possession by the buyer and the liability of the seller to give possession if asked. Since the aforesaid provisions are available the seller is not expected to keep the possession with him after sale take place. The contract for sale is a gentleman agreement and there is practice of handing over possession to the buyer along with the sale deed itself.

7. But there may be circumstances where the buyer declines to accept delivery of possession after the execution of sale deed. He may have his own reasons for such declination. If the buyer declines to accept delivery without any proper reasons he has no opportunity to blame the seller and will have nothing to sue against the seller.

8. But, the buyer, if declined to accept delivery with valid reasons i.e., reasons not attributable to the buyer, has the right to get back the purchase money (not the advance money) paid to the seller at time of sale deed. Such a right is provided in the first limp of S.55(6)(b) of the T.P. Act. Because without possession the buyer has nothing to do with the sale deed and there will be no meaning in keeping the title alone. Therefore a right is prescribed for him to get back the purchase money paid by him, if he is unable to obtain the possession from the seller.

9. The second limp of S.55(6)(b) provides some more reliefs if the buyer has properly declined to accept delivery. Before discussing those reliefs, first of all what advance money is, what is earnest money and what is purchase money are to be borne in mind. Advance money means the amount paid in advance towards sale consideration before execution of deeds i.e., at the time of contract for sale. S.74 of the Contract Act contains provision for fixing the maximum amount to be paid towards compensation in case of breach of contract by either of the parties. That amount is calledearnest money. Provision for earnest money may or may not be included in a contract for sale. If no earnest money is fixed in the contract the parties can claim any amount as compensation. Purchase money means the total amount of consideration paid in total by the buyer to the seller towards sale consideration.

10. If the contract for sale contains any provision for earnest money the buyer can claim, after sale takes place, apart from the purchase money, the earnest money (not the advance money) or compensation, as the case may be, as if the contract has not been performed by the seller. Because as far as the buyer is concerned the contract is not performed as he is not able to get the possession though sale deed is executed. So also by virtue of the second limp of S.55(6)(b)of the T.P. Act the buyer if got the sale deed through a decree is entitled for cost of the suit also if any is awarded. Because though the suit is decreed and got the sale deed the buyer has in effect failed as he did not get the possession. So he can claim for return of purchase money paid to the seller or deposited in court along with the earnest money or compensation, as the case may be, and cost of the suit if any is awarded.

11. Yet another relief available for the buyer is to rescind the contract before sale takes place as provided u/S.27 of the Specific Relief Act. In that case also the buyer can realize cost for the suit from the seller. If we read S.55(6)(b) after reading all the aforesaid provisions it can be seen that S.55(6)(b) speaks about the rights available to the buyer in whose favour the sale deed is executed and who declines to accept delivery of property for reasons not attributable to him. While suing for return of purchase money, earnest money or compensation, as the case may be, and cost by such a buyer, he has a charge over the property as per S.55(6)(b) of the T.P. Act. For ready reference S.55(6)(b) is extracted:-

Section 55. Rights and liabilities of buyer and seller.— In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:-

(1) to (5) ***

(6) The buyer is entitled—

(a) ***

(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.

***

12. Then what is charge? When a charge is created over a property the person in whose favour a charge created has a specific right to avail his claim upon charging the particular property itself. The person against whom the charge created has no other option than to pay the debt to release the property from the charge. He cannot substitute the property with another one or another kind of security as in the case of an attachment under O.38 R.5.

13. From the reading of S.55(6)(b) it is crystal clear that charge over the property is crated in favour of the buyer only after sale takes place and the buyer declines to accept delivery for reasons not attributable to him or when the buyer has filed suit for recession. It is a benevolent provision to save a buyer who purchased the property by paying money and thereafter failed to obtain possession not due to his fault or the buyer who sued for recession. Such a benevolent right which is available only to the buyer who purchased the property or who sued for recession is not expected to be provided to the buyer to a contract for sale who did not purchase the property or did not sue for recession, but who sues for return of advance money with or without compensation or claim for earnest money as the case may be. Because, charge can be created only by operation of law or by act of parties, as defined under Section 100 of the T.P. Act. No law prescribes such a charge for a buyer who enters in to a mere contract for sale.

14. So, by entering into a contract for sale parties do not create charge. By virtue of S.54 of T.P. Act no charge is created by operation of law. Hence the contract for sale does not create a charge. That is what is stated in the 3^rd heading of S.54 of T.P. Act 3^rd heading of S.54 is extracted here for ready reference.

Contract for sale.–A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

15. Then, what right the parties to contract for sale has if sale deed is not executed. It is stated in Ss.73 & 74 of the Contract Act. By virtue of those provisions the parties are entitled to sue for compensation from the other who committed breach. So also the buyer may sue for advance money paid by him to the seller towards advance sale consideration at the time of entering contract for sale. Though there is no specific provision for return of advance money in the Specific Relief Act, Contract Act, T.P. Act or any other related statutes, it is being permitted under the benevolent principle that unlawful enrichment in favour of one person is to be avoided. Of course, if the buyer is at fault in purchasing the property the seller is entitled to get compensation from the buyer on account of the fault of the buyer, provided any actual damage is sustained to the seller. Such amount shall be deducted from the advance money and only the balance has to be returned to the buyer. But in a suit for return of advance money with or without compensation or earnest money, as the case may be the buyer has no charge over the property. No law prescribes such a charge. The only privilege available for the buyer is to get an order of attachment under O.38 R.5 over that property. But such an attachment is liable to be lifted if any other sufficient security is offered, as in the case of other money suits.

16. In this context I have come across some verdicts of the Hon’ble Supreme Court and Hon’ble High Court of Kerala lasting from 1962 to 2017. Some of them are 1962 KLT 728, 1965 KLT 877, 1989 (1) KLT 581, 2004 (1) KLT 159, 2016 (1) KLT 394 & 2017 (1) KLT 429. Unfortunately all the verdicts affirm that the buyer who sues for return of advance money, before sale takes place, has a charge over the property by interpreting S.55(6)(b) of T.P. Act. How far those interpretations will stand?

17. With due respect to the Coram, legal luminaries appeared in those cases for both sides, let me disagree with the interpretations made on those judgments. What I understood from those judgments is that all those interpretations were made under the impression that S.55(6)(b) speaks about buyer in a contract for sale who sues for return of advance money. But in fact S.55(6)(b) meant only the buyers who purchased the property by paying the entire purchase money and thereafter declines to accept delivery of possession due to reasons not attributable to him. Suit for return ofadvance money without the sale being take place and suit for return ofpurchase money paid after sale takes place are distinct and different. Charge is created to the latter category only by virtue of S.55(6)(b) of T.P. Act. But somehow such privilege is being given to the former category also through the aforesaid judgments. Those judgments unfortunately do not address the aforesaid differences.

18. This would be clearer if we read S.54 again. Towards the last portion of S.54 it is categorically stated that the “contract for sale, of itself, do not create any interest in or charge on such property”. Through that provision charge over the property is specifically excluded. When something is excluded specifically all other provisions are to be understood subject to the specific exclusion. But nothing regarding the specific exclusion had been discussed in the judgments referred above. Even if the aforesaid exclusion is omitted to be considered, S.55(6)(b) is very clear as to whom and at what stage charge will be created. We can make sure that law will not intend to create charge for buyer suing for return of advance money if the following consequences are considered.

19. Let us imagine the consequences if the buyer under a contract for sale has a charge over the property for the advance money paid by him. By virtue of Article 62 of Limitation Act the period to claim money is 12 years when there is charge. Otherwise it is only 3 years. If the buyer who failed to purchase property kept mum for period of 12 years and files suit for return of advance money just before the expiry of 12 years the seller would be put to trouble as he might have sold the property already to some others. Because, the seller who decided to sell the property, might have so decided for fulfilling his financial needs. If charge is available to the buyer by virtue of mere, contract for sale the seller should wait for another 12 years to sell his property to others. Even if he plans to sell the property before 12 years, he must honestly disclose the new buyer that a charge subsists over the property. Nobody will purchase a property over which a charge is created according to the seller himself. Net result would be that, nobody will come forward to purchase the property and the earlier buyer may pressurize the seller to settle the account at his directions. The buyer, even if he is not the defaulter does not deserve that much of mercy from law simply because he had advanced some amount to purchase a property. Likewise the seller, even if he is the defaulter is not bound to be penalized that much by the law simply because he failed to return the advance money received by him. No law would contain that much of blemish. Law is made to ensure justice and to prevent injustice. Law does not mean to create troubles to persons who resort to it. When giving interpretations to law it should be harmonious and should be able to give effect to all the provisions, as said by Hon’ble Supreme Court and the Hon’ble High Court on many a occasion.

20. I read Ss.54 & 55 of T.P Act repeatedly to cure my doubts. I kept the topic throughout in my mind. But still I am unable to accept the verdicts as containing harmonious interpretations.

21. But situation may be different, if the contract for sale itself contains provision to create charge even for advance money. Because charge can be created by act of parties also as per S.100 of the T.P. Act. The specific inclusion of such a provision in the contract for sale may come within the purview of ‘act of parties’ and thereby creates charge. But no such interpretation has been made so far.

22. If the verdicts of the Hon’ble Supreme Court and Hon’ble High Court are to be followed all the buyers may file a suit for return of advance money and thereby obtain an order restraining alienation of the property under the guise that they have a charge over it. At the same time they will not file suit for specific performance and will not come forward to purchase the property. The seller, in effect, would not be able to sell his property. Though the suit by the buyer is only for return of advance money, the seller would not be able to furnish security as in the case of an attachment order under O.38 Rule 5 C.P.C. The seller would be bound to keep the property unsold till the final disposal of the case which is indefinite.

23. It is reminded that suits for return of advance money are being tried in trial courts which are bound to follow the decision of the Hon’ble High Court and Hon’ble Supreme Court. Since, these verdicts subsists, though not good, the trial courts are bound to follow it and are bound to pass orders in favour of buyers who approaches the court with a claim of charge. This may create unpleasant situation.

Let these words be an eye opener to all concerned, if correct.

Now is the Time

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

A young sprightly lawyer from Thiruvananthapuram had taken up the issue of Lawyers’ robes particularly in summer at the most appropriate time and got an order from the High Court that at least in trial Courts gowns are not compulsory during the summer. There is already a practice in Delhi, Punjab, Uthar Pradesh, etc., that between May through August, the gown need not be worn even by the Judges. This is a most welcome practice.

A more welcome practice will be to effect complete changes in the dress code of Lawyers. Like our judicial system itself, the dress has been borrowed from the British, which was designed to suit the climate in England and not the tropical climate. It will be extremely foolhardy to wear a dress which may even create health problems in a hot country like India merely because our erstwhile rulers had followed that dress code in their cold country.  In fact this humble contributor had pointed out the anomaly in dress habits in one of his articles earlier in an esteemed Law Journal.

It is primarily the duty of the Bar Council of India to address the issue and now is the time to do that since even a State like Kerala with comparatively mild climate is facing intense and unprecedented heat.  Section 49(1)(gg) of the Advocates Act empowers the Bar Council to frame rules including the form of dress. Section 49(1)(gg) reads as follows:-

“49(1)(gg) – the form of dresses or robes to be worn by Advocates, having regard to the climatic conditions, appearing before any court or tribunal.”

Unfortunately the Bar Council of India, which is a powerful body, is refusing to address itself to the problem while it calls for boycott, strike, etc., by Lawyers adversely affecting the administration of justice.  No doubt rules have been framed by the Bar Council of India under Section 49(1)(gg) which has prescribed the following dress:

“I.  ADVOCATES OTHER THAN LADY ADVOCATES – (a) A black buttoned upcoat, chapkan, achkan, black sherwani and white bands with Advocates’ Gowns, or

(b) A black open breast coat, white shirt, white collar, stiff or soft, and white bands with Advocates’ Gowns.

[In either case wear long trousers (white, black striped or grey) or Dhoti].

II.  LADY ADVOCATES – (a) Black and full or half sleeve jacket or blouse, white collar stiff or soft, with white bands and Advocates’ Gowns.

OR

White blouse, with or without collar, with white bands and with a black open breast coat.

(b)  Sarees or long skirts (white or black or any mellow or subdued colour without any print or design) or Flare (white, black or black striped or grey) or Punjabi dress(Churidar-Kurta or Salwar-kurta with or without dupatta) white or black”.

Significantly the rules themselves contain a proviso reading as follows:-

“Provided that the wearing of Advocates’ gowns shall be optional except when appearing in the Supreme Court or in a High Court.

Provided further that in Courts other than the Supreme Courts, High Court, District Courts, Sessions Courts or City Civil Courts a black tie may be worn instead of bands.”

Rules have been framed by the High Court of Kerala under Section 34(1) of the Advocates Act which prescribe the following:-

“12. Advocates appearing in Court shall wear the following dress:-

(1) Advocates other than lady advocates:-

(a) Black buttoned-up coat (chapkan, achkan or sherwani) Barrister’s or Bachelor of Laws’ gown and bands, or

(b) Black open collar coat, white shirt, white collar, stiff or soft with Barrister’s or Bachelor of laws’ gown and bands.

(2)    Lady Advocates – Regional dress of subdued colour with Barrister’s or Bachelor of laws’ gown, white collar, stiff or soft, and bands.”

It may therefore, be seen that there is a marked preference in favour of lady Advocates who are free to wear the regional dress with a gown, while the male Advocates are compelled to wear a Coat with the band and gown, which rule is prima faciediscriminatory.  The climate of the area is common to both men and women.  A dress code will have to be necessarily fixed taking into account the climatic conditions of different regions.  Unfortunately till date no attempt has been made by the authorities concerned to fix an appropriate dress, in spite of the advent of freedom which we obtained about 72 years back.  It is ungainly to ape the British model in regard to dress as the Barrister’s dress and gown are designed to meet the English climate, which everybody knows is erratic and can be resisted only with thick dress. Fortunately that is not the condition in Kerala or in any part of India except during winter in the Northern India.

It is therefore, time that the Bar Council, which appears to be concerned with so many issues not very much relevant to the legal profession, addresses itself to a very crucial issue namely wearing of dignified robes by Indian lawyers suiting the climate of the country.  

I was wondering why the legal profession cannot copy the model of the doctors by wearing a long black coat even avoiding the band and gown.  This will give the profession the distinct identity it needs as to my knowledge there is no other profession adopting the long black coat as a uniform.  Black small coat is adopted even by Railway men not to speak of the waiters in five-star hotels and the trainees in Catering.  Either the existing coat and gown can be substituted by a long coat, or gown alone, or if some are particular of the discriminatory senior’s gown with that distinction, wearing of the black gown alone shall be insisted.  No doubt, the dress shall be decent, congenial and consistent with the dignity of a member of the legal profession.

I should think that this is the most appropriate time for the Bar Council to deliberate over the matter and make effective appropriate changes to the dress code and make it part of the rule under the Advocates Act. The High Court should respond appropriately.

F.I.R. – Section 154 or 157 of Cr. P.C.?

(By E.N. Haridasan, Asst. Public Prosecutor (Senior Grade),
Judicial First Class Magistrate’s Court, Perumbavoor)

Under which provision of Cr.P.C. an F.I.R. is to be registered? Whether it is Section 154or 157 Cr.P.C. ?

Section 154 of Cr. P.C. deals with information in cognizable cases.

154. Information in cognizable cases.-- (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him ………………… and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

“157. Procedure for investigation.—(1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a Magistrate………………….” 

By going through the Judgments of Hon’ble Supreme Court and various High Courts, the term FIS and F.I.R. are used synonymously and there is no distinction between the same.

It can be seen that Sections 156 and 157 of Cr.P.C. respectively says about police officers powers and procedure for investigation. It means there must a case be registered prior to Section 157 either suo motoor as directed under Section 156(3) of Cr. P.C.

It is true that Section 154 of Cr. P.C. is silent about the term ‘Report’ but Section 157 Cr.P.C. says about the term ‘Report’ – which may not be F.I.R.

F.I.R. and FIS are both sides of the same coin which is mentioned under Section 154 of Cr.P.C.

Section 207 of Cr.P.C. clarifies the same.

“207.Supply to the accused of copy of police report and other documents.-- In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report;

(ii) the first information report recorded under Section 154;

(iii) ……………………………………

(iv) ……………………………………….

(v) ………………………………………..

The Act says the F.I.R. is recorded under Section 154. So there is no chance for any differences of opinion. F.I.R. is the substance that is entered in a book kept in the form prescribed by the State Government, and on it’s overleaf the FIS was used to be recorded prior to the computer era. The book contained triplicate pages and the original and carbon copies prepared simultaneously. In fact this system has to be followed strictly so as to avoid malpractices.

Do We Deserve Pure Drinking Water?

(By Mathew Philip, Advocate, Kottayam)

1. Descending from the clouds, water is the elixir of life and the major constituent of all living organisms. This colourless odourless and transparent liquid is the cause of our ancient cultures, agriculture and industry. It is second only to air for the sustenance of our life in this planet.

2. One of the major source of water is the rivers, the natural channel of waters flowing from the mountains and ultimately reach the great oceans. It is home for the dazzling varieties of fishes, animals and the flora. The physical, chemical and biological character of the eco system largely depends upon these water bodies.

3. There are 44 rivers in this beautiful, tiny, God’s own land renowned for its wonderful greenery, intertwined river system, beautiful sceneries and varied geo systems. The longest river is less than 250 kms. In length. All the rivers originate in the fort like western ghats which is a marvellous combination of monsoon, mist, attractive animals and equatorial richness of plants. When this pristine blue waters reach the Arabian and Indian oceans, the shining and sparkling droops and it become dark and foul.

4. A study on the water sources of Kerala found that 73% of the water sources which arithmetically is 3606 in number (including rivers, streams, ponds, lakes and wells) are contaminated. (Hindu dated 26.10.2017). About 27 per cent are totally polluted. The rivers in Kerala are polluted from industrial and domestic waste as well as pesticides and fertilizer used in agriculture. Industries discharge harmful pollutants like phosphates, sulphides, ammonia, fluorides, heavy metals, and insecticides. Pampa river is choked by the waste of pilgrims. Periyar is undergoing eco degradation throughout its flow due to indiscriminate deforestation, agricultural industrial pollution and large scale sand mining. Still another reason for this pollution especially during summer, is the topography of the State. Because of the considerable level difference between western ghats and the ocean, the Kerala rivers are fast flowing and because availability of water is scarce during summer, the situation worsens. Per contra, the rivers in north India experience richness even in summer because of the melting of ice in Himalayas.

5. What about our right of clean potable water?

6. This matter was discussed elaborately in the classic case of Tirupur Dyeing Factory case (2010 (1) KLT OnLine 1114 (SC). A large number of industries situate on the banks of Noyyal river in Tamil Nadu and the discharge of industrial effluents into the river caused water pollution to the extent that the river water became neither potable nor fit for any other domestic use. It even polluted the underground water sources. The Hon’ble Madras High Court while considering the case imposed heavy fine on the manufacturing units at a pro rata of 6ps, 8ps and 10ps per litre of the effluent discharged into the Noyyal river being the cost of removing the sledge from the river and for the treatment of water making it worth for irrigation and human consumption. The penalty was challenged before the Supreme Court. It held:

“15. In Indian Council for Enviro Legal Action v. Union of India(2011 (3) KLT SN 137 (C.No.141) (SC) this court ruled that once the industrial activities carried out are found to be hazardous or inherently dangerous, the persons carrying on such activities are liable to make good the loss caused to any other person by his activity, irrespective of the fact whether he took reasonable care while carrying out his industrial or commercial activities. Therefore the polluting industries are absolutely liable to compensate for the harm caused by it to the villagers or other affected persons of the area, to the soil and to the underground water and hence the industry is bound to take all necessary measures to prevent degradation of environment and also to remove sludge and other pollutants lying in the affected area. As the liability of the polluter is absolute, for harm to the environment, it extends not only to the victims of the pollution but also to meet the cost of restoring the pollution free environment.

16. InVellore Citizens Welfare Forum v. Union of India(1996 (2) KLT OnLine 1119 (SC)) this Court considered various constitutional provisions including article 47, 48A, 51A(g) and came to the conclusion that it is the duty of the State to protect and preserve the ecology, as Article 21 of the Constitution guarantees protection of life and personal liberty and every person has a right to pollution free atmosphere. Therefore the “precautionary principle” and the “polluter pays” principle have been accepted as a part of the law of the land, being the part of environmental law of the country.”

7. The Honourable Apex Court did not interfere the order of the Hon’ble Madras High Court other than granting three month’s time for compliance.

8. In “U.P.Pollution Control Board v. Dr.Bhupendra Kumar Modi & Anr.”(2009 (1) KLT Suppl.720 (SC)) the issue was discharge of trade effluents into river Sai without any treatment. The company viz. M/s Modi Carpets Limited, Raeberali, was reluctant to carry out the directions of U.P.Pollution Control Board and continued to discharge untreated noxious and polluting trade effluents into the river. The learned Apex Court held:

“’Those who discharge noxious polluting effluents into streams, rivers or other water bodies which inflicts on public health at large, should be dealt with strictly de hors, to the technical objections. Since escalating pollution level of our environment affects on the life and health of human beings as well as animals, the courts should not deal with the prosecution of offences under the Pollution and Environmental Acts in a casual or routine manner.”

9. One observation inM.C.Mehta v.State of Orissa (1992 (1) KLT OnLine 919 (Ori.) is worth noting:

“The enormity of the problem can be gauzed from the following extract of the World Health Organization report:

“One hospital bed out of four in the world is occupied by a patient who is ill because of polluted water..... Provision of a safe and convenient water supply is the single most important activity that could be undertaken to improve the health of the people living in rural areas of the developing world.”

10. Pollution of water was the concern inStella SiIks v. State of Kamataka(2001 (1) KLT OnLine 1016 (Karnt.) and the Hon’ble Court observed:

“The very object of the Act is to ensure that the water which is a very essential natural resource available to the society is maintained in its purity, that some powerful influential and greedy persons do not corner the same for themselves and do not cause pollution to the detriment of the society at large.”

11. Time and again this matter was under consideration of our High Court. An interesting question of law arose inPrasad v. State of Kerala (2012 (1) KLT 861). The accused
persons dumped toilet waste into a thodu and accordingly charged under Section 277 read with Section 34 I.P.C. The counsel for the accused argued that Section 60 of the Water (Prevention and Control of Pollution) Act 1974 contains a non obstanteclause and therefore impliedly repeal Section 277 I.P.C. Section 60 supra reads:

“The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act.”

Obviously Section 277 I.P.C. does not go against the spirit of Water Act and therefore not inconsistent to the provisions of the Act. Hence court held that there is nothing to interfere.

12. Next question is how far the present enactments help to prevent water pollution. Section 24 of the Water Act is the charging section. It prohibits dumping of polluting matter in any stream or well or sewer or on land. Section 43 is the penal provision. The penalty prescribed is imprisonment which may not be less than 18 months but which can be extended to 72 months. Section 49 authorises the State Pollution Control Board to prosecute offenders. Because of the cumbersome procedure and lack of evidence prosecutions are seldom. Another penal provision is Section 277 of the Indian Penal Code. The penalty for fouling of water is three months simple imprisonment or fine upto ` 500 or both. The penalty is meagre considering the gravity of offence. The plethora of laws enacted to regulate waste management and to protect water quality are simply not working.

13. One suggestion I would like to make is a statute prescribing environmental permit to all riparian industrial/manufacturing units. This is in vogue in England vide The Environmental Permitting (England and Wales) Regulations 2010. The environmental permit may be made applicable to all existing units and future units. The owner or occupier or person in charge shall declare whether he intent to use river water and to discharge treated water in the river and in the latter cases the measures taken to make the effluent water clean and potable. The unit will be allowed to function only after they obtain an environment permit. Sufficient penal provisions are to be incorporated for suppression of facts or variation without permission. Another advantage for this is that the declarations and details made will be available in public domain, susceptible to R.T.I. Act.