FELICITATIONS TO MR. JUSTICE S. VELU PILLAI

AND SMT. JUSTICE ANNA CHANDY

We take this opportunity to offer our warm and respectful felicitations to Mr. Justice S. Velu Pillai and Smt. Justice Anna Chandy on the occasion of their appointment as permanent Judges of the Kerala High Court. When their Lordships were elevated to the position of Additional Judges of our High Court we had adverted to their sterling qualities and it was our modest wish that their Lordships be appointed permanent Judges very soon. That wish has come true to-day. During the short period of their tenure as Additional Judges they have distinguished themselves by their erudition and integrity. Their untiring patience and attention shown in the hearing of causes irrespective of how and by whom presented deserve special mention. Their appointment as permanent Judges has been acclaimed with great satisfaction by all. We hereby join in the general acclaim and wish their Lordships brilliant and prosperous future in the discharge of the high duties and responsibilities befitting the highest seat of justice in this State expecting that to be a prelude to greater heights in their judicial career.

THE STORY BEHIND THE ANATOMY ACT

V.A. Abdul Azeez, B.A., B.L., Legal Assistant, Kerala Law Secretariat

In the judicial annals of Scotland the trial that created the greatest sensation is that of Burk and Hare. The case created world-wide interest by reason of the complicated atrocity of the crimes and the importance of the legal principles involved. When the deadful tale was first unfolded public feeling was worked up to the highest pitch of excitement.

The Scots regarded with superstitious veneration, the mortal remains of their kindred. The natural repugnance to dissection of the human body combined with religious sentiment remained for centuries a barrier for anatomical research. Edinburgh grave-yards appeared more as zoological gardens as the graves were barred and grated as a protection against human wolves. Complaints of rifled graves were frequent. The lawful supply of dead bodies was wholly inadequate to meet the growing needs of Medical Schools. The punishments for exhumation though severe could not counter the equally inexorable laws of supply and demand. On 9th March 1742, the body of a country gentleman which was buried in the West Kirkyard was discovered on the dissection table of a Surgeon. The news spread like wild fire and in the evening, an angry mob attacked the house of Dr. Martin and the other Surgeons of the locality.

x           x          x          x          x

William Burk, born in 1792 in Ireland emigrated to Scotland in 1818. He had already a wife and six children in Ireland, but he fell in love with one Helen Dougal, a prostitute, and lived like man and wife. They were running a lodging house in the West Port. In the autumn, they wrought at the harvesting near Penicuik and on returning to town made acquaintance with a Mr., & Mrs. Hare.On 29th November 1827, an old army pensioner died in this lodging house. Burk was genuinely grieved over this, because the old man owed him £ 5 and there was no possibility to realize the amount from him. Hare appeared on the scene as an angel of wisdom and whispered something to his comrade. Burk was very much pleased with Hare. They took out the corpse and concealed it in the bed and put banners bark from behind the house into the coffin, covered with a sheet and carried it away for interment. When it was «-dark, they engaged a porter to carry the body to the Surgeons Square. They were introduced to Dr. Knox. The Doctor appeared to be very much pleased with them and gave £ 7-10 s. The doctor did not ask them how they obtained the body, but he said that he would be glad to see them again when they had any other body to dispose of. These words worked powerfully on the cupidity of the two miscreants. Here was a royal road to success and wealth. But folks did not die often enough. After long waiting, Burk and his friend conceived the notion that it was unnecessary to await the co-operation of nature. Their idea was that feeble, friendless wanderers would serve their purpose. So they began to prowl about the town on the lookout for persons with whom the firm was likely to do business.

Early in the spring of 1828, a woman from Gilmerton came to Hare’s house as a nightly lodger. She and Hare became merry and drank together. She became very sick and vomited. She was lying on her back and quite insensible from drink and Hare clapped his hand on her mouth and nose and Burk laid himself across her body in order to prevent her from making any disturbance. She never stirred. They took her out of bed, undressed her and put her into a tea chest. In the evening, a porter came and took the chest to the Surgeons Square. They were given £ 10. This time Dr. Knox smiled at them to cheer them.

Next was an Englishman from Chesire, a lodger of Burk. They murdered him in the same manner as the other sold to Dr. Knox for £ 10.

Now the business was flourishing. Then came to this Lodge Mary Peterson, a young and beautiful prostitute. She was smothered to death by Burk and Hare after entertaining her with drinks. She was only four hours dead till she . was in Dr. Knox’s dissecting table. She was a handsome figure, well-shaped in body and limbs. Dr. Knox and his disciples were struck by her beauty and brought a painter to have a look at her. Her body was preserved for three months in whisky and during this period a portrait of it was painted.

The ease and success attending these operations convinced Burk and his friend that they had solved the irksome problem of making a living. They dressed better and pretended to, be big businessmen.

One morning, Burk saw two policemen dragging a drunken woman to a nearby station. Burk was shocked by the roughness of these officers and politely told them that she is a distant relation of his and would take care of her. The policemen were happy to entrust the old woman to the care of Burk. That evening, the poor old woman was freed from all earthly penalties and lay quiet on a dissection table of Dr. Knox. Over and above the moral benefit accruing from the performance of a kind action, Burk was richer by £ 10.

For nine months the firm of Burk and Hare carried on their trade with success murdering nearly 16 persons, but their last speculation miscarried and their affairs were in the hands of the public prosecutor.

Hare turned an approver and Mrs. Hare was released on 19th January 1829, She was recognized and was soon in the centre of a hostile crowd. She was pelted mercilessly with mud and stones by an angry crowd. At last the policemen with great difficulty rescued her.

Burk was hanged on 27th January 1829. One of the densest crowds ever witnessed on the streets of Edinburgh collected to witness the execution of Burk. Every window and house top from which a glimpse of the criminal could be obtained was occupied. The public paid 5 to 20 shillings to obtain a seat near windows commanding a full view of the scaffold.

The body of Burk was exhibited on the black marble slab of the anatomical theatre. All day long a continuous steam of sight-seers flowed through the chamber as was calculated sixty per minute, giving a total of 30,000 persons.

The fullest measure of poetic justice attended Burk’s dissolution. He died as did his sixteen victims by suffocation. His body also became a subject for the advancement of science, under the anatomist’s knife.

Today in the central hall of the Anatomy Museum of the Edinburgh University, the skeleton of a human being is suspended in a show case in a conspicuous place. There is note at the bottom of the case, ‘William Burk, the murderer’, skeleton of a scoundrel who was hanged on 27th January 1829.

This without any precedent in the annals of crime amounts to the realization of a nursery tale. This is also the first instance of murder alleged to have been perpetrated with the aforethought purpose and internet of selling the murdered body as a subject for dissection to anatomists.

WELCOME TO HON’BLE MR. JUSTICE MOHAMMED AHMED ANSARI

We had on several occasions felicitated Judges on their elevation to our High Court from the Bar or Bench. Bat this is the first time that we get the privilege to welcome and pay our respectful homage to a Judge transferred from the High Court of a sister State. Mr. Justice Ansari is one of the great Judges of recent times, with brilliant academic qualifications and juristic learning. What more experience one can expect than working in the same chambers and appearing in cases with that eminent jurist, the greatest lawyer of India, Sir Tej Bahadur Sapru, of international repute.

Mr. Justice Ansari is the son of late Nawab Asghar Yar Jung who once adorned the High Court of Hyderabad. He was born on November 26, 1901 in Yousufpur in Uttar Pradesh and received his early education in St. George’s Grammar School at Hyderabad and at the European School at Dehradun and then at Wadhan College, Oxford. He took the B.C.L. degree in 1923. After putting his terms in the Lincolon’s Inn he was called to the Bar. He was enrolled as an advocate of the Allahabad High Court in 1923. In 1935 has shifted his practice to Hyderabad where he built up a very lucrative practice and by dint of his industry and talents he made his mark as a consummate lawyer. He was elevated to the Bench of that High Court in 1915 and later was appointed as Judge of the High Court of Andhra Pradesh in 1953. Patient, courteous, gentle, learned and impartial, he gained the respect of the legal profession and the confidence of the litigating public. It is said of His Lordship that there is not a single occasion when he lost his temper or did anything to undermine the prestige of the Court-a quality which goes to make up a great and good Judge. We are sure; he will be a shining pillar of strength to the Kerala judiciary. We extend to His Lordship our heartfelt welcome. May the Almighty grant to him good health happiness prosperity and a still greater record of service.

ACCESS AND BENEFIT SHARING: A WELFARE MEASURE LACKING IMPLEMENTATION

Ebee Antony (4th Year, B.A.LL.B (Honours), School of Law, Christ (Deemed to be University)

ABSTRACT

Access and Benefit Sharing is a scheme that came into picture with full thrust act the Convention of Biological Diversity, the purpose of such a measure was to compensate the traditional knowledge holders of the loss that they would face, as a result of scientific and technological advancement. Science and Technology has created an atmosphere which is not conducive for the life of the persons who lag behind or those who prefer to stay without indulging into it. The ABS scheme was given further shape through the Nagoya Protocol, which mandated that every party to the convention should formulate domestic legislations to effectuate the ends of the protocol. A pertinent issue facing all the authorities under the act is the determination of the value of the biological resource. Right now there is a confusion regarding whether local industries should pay the ABS fees as the wording of the legislation are ambiguous about this. The difference between the marginal benefit of the user and the marginal benefit of the stakeholders should be decreased to attain the actual purpose of the scheme. The establishment of several administrative authorities under the act which are empowered to impose fines for the purpose of enforcing the provisions of the act, the need for the involvement of various stakeholders and empowering the Biodiversity Management Committee is also necessary as it is the institution that has first-hand knowledge about the realities of the locality.

I. Introduction

Of the Convention of Biological Diversity and the Nagoya Protocol on Access to Genetic Resources and In pursuance Equitable Sharing of Benefits Arising from their Utilization, the signatories to it have drafted and passed local legislations and other administrative policies for the purpose. India became a signatory to this convention on the 19th May 1994.

Mostly resource rich countries are developing and poor when it comes to the technical know-how required to tap into these resources. As a result the developed countries tend to barge into the biological resources of the developing countries and illegal means extract these resources and claim a patent protection over them. Instead of a plant patent they go for a utility patent which covers the entire niche of the DNA and other genetic material, thus depriving the local community of their right to access the livelihood security systems. It is the fear of this IP ambush that has triggered the International Community to present such a convention and other protocols under it.[1]

The IPR system provides uninterrupted rights over the commodity on which such rights prevail, this will give the holder the incentive to commercially exploit the same. The holder will not consider keeping enough for the indigenous/local community for sustainable growth. Our present understanding of the genetic knowledge owes a good deal towards the traditional knowledge of indigenous communities, hence it is our duty to consider their rights as well.

The ABS regime comes into picture at this juncture, it brings in the idea of sharing out of the benefits accrued from the utilization of resources. This is done through a contract which involves the Mutually Agreed Terms (MAT) which highlights the commitments from the side of the biological resource supplier (State) and the user (Individuals/Corporations). The goal of ABS is to make an environment suitable for sustainable development. ABS is also helpful in the achievement of two Sustainable Development Goals (SDGs):

SDG 2: Zero Hunger.

SDG 15: Protect, restore and promote sustainable use of terrestrial resources. [2]

According to the Bonn Guidelines on Access and Benefit Sharing, ABS can be carried out either in monetary as well as in non-monetary terms. The examples of these are provided in Appendix II to the Bonn Guidelines, some of which will be discussed here for the benefit of the reader:

Monetary forms of ABS: [3]

•     Access Fee.

•     Fee for the collection of samples.

•     Joint ownership of IPRs

Non-Monetary forms of ABS: [4]

•     Sharing R&D results with the state.

•     Locating production and R&D facility in the region for the purpose of improving the living standard.

•     Research directed to the priority needs of the supplier state.

II. Convention on Biological Diversity, 1992

The convention took shape as one which was for the purpose of protecting the biological resources of the planet, but it has got relevance to the topic of this paper as one of the three objectives of the act is, “…ensuring fair and equitable sharing of benefits arising out of utilization of genetic resources.” States have been roped in to play a major role in drafting domestic legislations in pursuance of Article 15(7) of the Convention which states that it is mandatory for every contracting to state to frame domestic laws and rules for attaining the objectives of the convention. There has been a departure from the earlier belief that biological resources are part of the common heritage of mankind, the convention through Article 3 has reaffirmed the position of the state as the custodian of the natural resources found within its territory. [5]

India had ratified this convention on 19th May 1994 and hence have the liability to carry out the obligations laid down under the Act. The deadline for the countries that have ratified this convention to effectuate the aspirations of the convention is mentioned in the Aichi Biodiversity Targets, Target 16 states that the Nagoya Protocol should be inforce and operational by the year 2010.

III. Nagoya Protocol

It is an additional agreement to the Convention on Biological Diversity, 1992. The purpose of this Protocol is to convey to the signatories their obligations under the third objective of the CBD. Article 5 of the Nagoya Protocol mandates the sharing of the benefits accrued out of the utilization of genetic resources, it further goes on to state that this sharing should be based on a formal agreement which will be known as the Mutually Agreed Terms (MAT).[6] The Nagoya protocol has a wide scope as compared to the earlier ABS regime under the International Treaty on Plant Genetic Resources for Food and Agriculture (IT PGRFA) which covered only seeds. The Nagoya Protocol on the other hand covers in its ambit all kinds of genetic material and the benefit arising out of its utilisation, also it covers under it wide net the Traditional Knowledge of the indigenous communities.

Mutually Agreed Terms

The two parties (State-Individual) will come into a contract on how to carry out the terms of the ABS. It is a bilateral agreement, to provide access to genetic resources by the supplier state and on the part of the user to reciprocate by granting both monetary and non-monetary benefits. Negotiating the MAT is the most crucial part in arriving at a equitable contract as provided under the Convention. As the state is the sovereign it has to exercise his power to restrict the way in which collection is done, all natural resources of a country are within the sovereign powers of the state and it is their duty to protect it. The state can prescribe regulations, the only qualification being that it should not be restrictive in nature. [7]

IV. Bonn Guidelines on Access and Benefit Sharing

The main purpose of these guidelines is to serve as a pole star for different states to help them in drafting local legislations, rules, regulations and policies.

It also tries to enhance the compliance with the Mutually Agreed Terms (MATs) by including in it the names of the indigenous tribe as well as the user of the resource. Further in the absence of MAT, i.e., when they are under negotiation other IP clauses have to be developed to fix the vacuum. They have also mandated the setting up of a Competent National Authority which look into the matters relating to Biodiversity conservation and protection of the indigenous and tribal community. The have been given the authority to decide on whether to admit a certain user and to decide on the quantum of compensation to be paid to the local community via the fund created by it. [8]

In India the Competent National Authority is the National Biodiversity Board, established under the provisions of the National Biodiversity Act, 2002.

V. National Biological Diversity Act, 2002

The objective of the Act as provided in the objects and reasons,’…fair and equitable sharing of benefits arising out of the utilization of biological resources, knowledge and of matters connected with or incidental thereto.” Section 2(g) defines Fair and Equitable benefit sharing as those acts of ABS as provided under Section 21(2) which is nothing more than the non-exhaustive list of monetary and non-monetary modes of benefit sharing. The Act goes onto to mention that the NBA is duty bound to ensure the existence of a contract for benefit sharing before grant of access and at the same time should ensure that there was prior informed consent.

The money deposited with the National Biodiversity Fund should be utilized only for those purposes purpose as specified by the Act under Section 27(2):

•     For the benefits of the stakeholder.

•     Development of the areas from where the biological resources have been sourced.

•     Socio-Economic development of the community.

VI. Biodiversity Rules, 2004

These rules prescribe the duty of the Biodiversity Authority and the State Biodiversity Board, both these bodies in consultation with the Biological Management Committee and the local community will have to negotiate with the user about the terms of the Mutually Agreed Terms, the clauses should guarantee that there will exist equal bargaining power. Neither access nor the benefit should be disproportionate. Rule 14(6) lists the information that should be included in the application for the receipt of the informed consent. Rule 14(10) is a hallmark rule which should be implemented with and carried out can reduce the asymmetry between access to the genetic resource and the benefit that has to be paid to the local community on each level of commercialization of the bio resource. A look at Rule 20 of the Rules says that there is no blanket formula for determining the value of the benefit sharing and this should be done in a case to case basis. In most cases this valuation is below the actual value this can be countered by the introduction of an ABS Cess/ABS Tax, which is a percentage calculated upon the difference of the ex-factory cost of the commodity and the taxes.

VII. ABS Guidelines, 2014

The guidelines have been issued by the Ministry of Environment, Forest and Climate Change after the action taken by the Madhya Pradesh and Maharashtra State Biodiversity Board’s action against the domestic users of biological resources.

The guidelines include within it the matters that need to be taken into consideration before evaluation the monetary consideration. They also present ration in which the National Biodiversity Authority and the State Biodiversity Board should devolve the money to the locals, which is to be done through the Biological Management Committee (BMC) which is the grass root level institution to secure the rights of the inhabitants. The money to be paid to the authority is 1%-3% or 3%-5% as the case maybe, which is worked on the net of the ex-factory price and the applicable government taxes. [9]

VIII. Benefit sharing under Protection of Plant Varieties & Farmer’s Rights Act, 2001

The Act has nuances of benefit sharing but the scope of the Act is limited to plant varieties and not as wide as the Biodiversity Act, 2002. Special reference should be laid on Section 26 of the Act which provides for determination of the worth of benefit that has to be transferred to the indigenous community. The authority under the Act is empowered for the purpose which listens the matter from the side of the user and the claimants of the benefit, it has to dispose the matter in an expedient manner and this order shall also contain the value of the monetary benefit that has to be paid if any, this has to be accompanied by reasons for the same. Some grounds on which the amount has to be determined: [10]

•     Commercial utility and demand in the market of the variety relating to which the benefit sharing is claimed.

•     The extent and the nature of the use of genetic material of the claimant in the development of the variety relating to which the benefit sharing has been claimed.

IX. Conclusion- Keeping pace with the changing landscape for the effective implementation of ABS regime

Valuation of the potential of the Biotechnology resource is a tricky business, no one is able to readily tell the monetary value of the resource that is being extracted from a particular area. There have been certain suggestions regarding what elements should be taken into consideration while making this decision, these can the found in the Nagoya Protocol itself and in the Indian domestic framework, in the ABS Guidelines, 2014 published by the Ministry of Environment, Forest & Climate Change along with the National Biodiversity Authority which is the competent authority in India to determine whether the access should be granted. These are the matters to be considered while determining the value of the compensation that is to be made to the National Biodiversity Fund for distribution among the benefit claimers:

•     Market Potential.

•     Investment in Research and Development.

•     Likelihood of commercial success of research or product.

•     Intention to secure IPR on the outcome.

•     Annual Turnover of the applicant from the previous years. [11]

These will be considered only as a guiding light, the competent national authority has to construe other factors for determination with the help of an expert research group. Drawing inspiration from the Brazilian ABS framework, they have  a concept of Ad hoc compensation to be paid to the Biodiversity Fund, which is in line with the environmental law concept of ‘Polluter Pays’ [13], i.e., a percentage as set by the authority calculated on the amount of genetic resource taken. The authorities in that country have realized that collection of a sum at different stages of commercialization will increase the cost of monitoring and actually eat up the finances which have to be made available to the domestic community.

Another suggestion is to widen the powers and the function of the Biological Management Committee, to increased participation of the affected stakeholders for better understanding of the situation, it should be invested with greater powers of advising the National Biodiversity Authority on which areas should be allowing to be subject to bio surveying/bioprospecting and which areas should be left out so as to maintain sustainability in the area. Furthermore, the Intellectual Property Office of the country should be allowed to participate in the decision making process to advice the Authority in framing the MAT.

The convention while mandating that access should be granted in all cases, upholds the spirit of sovereignty over the natural resources under its territorial jurisdiction, this gives unfettered rights to the state to put in place restrictions of its choice which it finds appropriate in consultation with the local community. The only requirement for the parties to the convention is that they should lift the blanket ban on access to technology. Moreover, the convention does not provide for a definition to the term ‘Prior Informed Consent’, this leaves space for the individual nation to frame case to case PIC requirement. The PIC may specify the territorial limit of bioprospecting. [13]

The local legislation should also be made applicable to domestic land grabbers and other individuals who make use of the biological resources, this is because if they are left unattended by any law, they will become brazen. If order to tackle this a very novel method is to conduct frequent and timely audit of the user of the genetic resources, this can be done without hassles by the inclusion of a ‘licensor audit’ clause in the Mutual Agreed Terms.

The aspirations of ABS cannot be achieved all of a sudden, this can be done only through constant research and analysis of the results of such research findings needs to be incorporated, the Authority in every country ought to work without vested interest and work towards attaining the best interest of its people especially the persons living in the geographical area being subject to bioprospecting activity. In situations where the access is truly for academic or research purpose the authority should place an obligation to the researcher to publish the work and conduct workshops for the local community to understand the results of the work, this should be done in non-technical language to facilitate better understanding of and to make useful application of the research finding. The competent authority can direct the user to make their research and development directed to certain particular end that might be useful for the country of origin to tackle some of their domestic problems. [14]

The National Green Tribunal (Central Zone) has made certain observation regarding the tardy implementation of the Biodiversity Act and the Rules under it that the State Biodiversity Boards in many of the Indian states have not yet been given guidelines pertaining to the demarcation of certain geographical locations as Biological Heritage Zones. The following was noted by the National Biodiversity Authority and the guidelines for the demarcation of Biological Heritage Zones were issued by the Authority in its 19th meeting and now it is open to the state governments to notify the rules for enforcing the guidelines.[15] The National Biodiversity Authority has in its 19th meeting passed guidelines regarding designation of ecologically fragile zones and those with other peculiar characteristic as Biological Heritage Zones, this is a step towards sustainable growth and protection from commercial exploitation.

I am of the personal opinion that the provision of the national legislation in India is not far behind the international standards, in fact the Biodiversity Act, 2002 from it conception had all the provisions other nations like Brazil, Costa Rica & Brazil are coming up with, the issue here lies with the implementation of the provisions. The illiteracy that prevails with regard to the provisions of the Act and the lack of awareness of such mechanisms in the part of the local community who are finally the victims of exploitation as they are deprived of human food, livelihood security systems and human health in the name of technological development. The government and the people of the region should realize that sustained use of biological resources is important for growth and development, economic growth without development in other sectors will result in nothing less than perpetual poverty and over dependence on external sources for basic needs. In order to satisfy the concern of the holder of the patent holder that disclosure in the PIC be prejudicial to their interest, such a disclosure maybe made in a separate form with a confidentiality clause attached to it, which will enable the applicant to hold the Competent National Authority liable for any breach in a court with relevant jurisdiction. And another key suggestion would be the introduction a digital library in line with the Traditional Knowledge Digital Library so that the search cost of the potential users can the reduced to a minimal and the job of maintaining of the PBR can be stopped, hence providing a single point of contact to derive all the necessary information.

That perfect balance between access and equitable benefit sharing is a farfetched goal, this can be arrived at only by constant research in this regard, development of various parameters for the calculation has to be seen, till then the local communities will have to settle with the valuation that prevails, the technology transfers and the capacity building initiatives.[16] Access and Benefit sharing is a novel idea that has blossomed in the hindsight of the international community which has duly found that the IPR system is acting in a manner which is inconsistent to the interest of the local communities and those who depend on it for their livelihood. The objective of implementing newer mechanisms to make sharing efficient is pertinent as now the ABS system is only in its nascent stage and even though in theory they have to balance economic growth and welfare, the reality is antithetical to that objective. New valuation mechanisms, distribution mechanisms and check point systems which ensure that prompt implementation of the scheme should be in place. The gulf between the marginal benefit of the user and the marginal benefit of the stakeholders are widening, the ABS system should attempt to bring this closer and finally achieve a level playing field, where no one gets an upper hand.

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Foot Note:

1Neeti Wilson, Guidelines for Access and Benefit Sharing for Utilization of Biological Resources based on the Nagoya Protocol, 20 J Intellec Prop Rights, pp. 67-70.

2http://www.fao.org/sustainable-development-goals/news/detail-news/en/c/1045012/.

3ABS Guidelines, 2014.

4Ibid.

5171st Law Commission Report on Biodiversity Bill, 2000.

6BavikatteKabir, Robinson, Daniel.F, Towards a people history of the law: BiocultureJuisprudence& the Nagoya protocol on Access and Benefit Sharing, pp.37-49.

7Ibid.

8Supra, n.3.

9Supra, n.1.

10Section 26, The Protection of Plant Varieties and Farmer’s Rights Act, 2001.

11Biodiversity Rules, 2004.

12Juliana Santilli, Genetic Resources common pools in Brazil, Common Pools and Genetic Resources: Equity and Innovation in International Biodiversity law (EvansonChegeKamau&Gerd Winter).

13Ibid.

14SrividhyaRaghavan, India’s attempt to reconcile diversity, Indian Journal for Intellectual Property, NALSAR.

Legal Comment on 1980 KLT 283

(By Amicus)

The rulings given by Mr. Justice Khalid in the case of Manuel v. Thomas reported in 1980 KLT. 283 (also in some other journals) appear to be of considerable general importance that they deserve more than passing notice. The decision involves rulings on three important questions:

(1) The meaning and scope of the expression "any matter of an interlocutory character" occurring in clause (5) of S. 3 of the Kerala High Court Act, 1958;

(2) The scope of the jurisdiction and powers of a single Judge to determine the correctness of the valuation of and court Fee to be paid on a Memorandum of appeal already admitted and registered on the file of the High Court; and

(3) The meaning and scope of the provisions of S. 52 of the Kerala Court Fees and Suits Valuation Act, 1959, with particular reference to the facts of the case.

2. In regard to the 1st question the learned Judge holds (with respect, rightly) that the word "interlocutory" means (quoting New Webster's Dictionery) 'spoken intermediately", "pronounced during the course of an action", "pertaining to a provisional decision", (emphasis added). Halsbury is also quoted to the same effect. Now the question is: Is the determination of the right valuation and court fee in respect of an appeal Memorandum a matter arising 'during the course' of an appeal? Obviously 'during the course' implies the existence or pendency of a validily filed appeal (whatever its merits be) awaiting its final disposal in due course; and 'interlocutory' proceedings are proceedings taken in between the two ends, the start and the finish. Indeed, the learned Judge himself says that "Payment of the requisite court fee is a Sine qua non for giving life and existence for an appeal on the file of the court; and that is what is to be done at the threshold". Obviously then, unless and until the court fee question is duly decided and complied with, there cannot be in law an appeal in 'existence', ie., it has not started on its 'course', not yet crossed the threshold, to enable anything being done during' its course, or intermediately'. Indeed, the prefix 'inter' which means 'between' (like inter-national, inter-space etc) postulates the existence of at least two things, stages or points and what is done in between them could alone be 'intermediate' or 'interlocutory'. Where therefore there has been no valid start or beginning yet there cannot possibly be a finish either, or 'final decision' in order to say, as the learned Judge does, that "it is enough to understand that 'interlocutory' means at a stage before final decision". You cannot possibly have a final decision in a case which had not started existence yet, and conceive of an inter-stage 'between' two nothings Thus, it must be obvious that, as according to the learned Judge himself, unless and until the court-fee question was determined and duly complied with there cannot be an appeal in existence under law and therefore such predetermination of the court fee question cannot attract the appellation of 'interlocutory' and authorise a 'single Judge' to invoke the sanction of S. 3(5) of the Kerala High Court Act for assuming jurisdiction to deal with it where the appeal is a Division Bench case. On the other hand, the question is obviously basic to the appeal, going to its very root, for giving "it life and maintainability, so that it can be dealt with only by that court which alone has "the jurisdiction or authority to say whether it shall have life or not, and to dispose of it, namely, here, a Division Bench. The view, there for, that the determination of a disputed court-fee question is an 'interlocutory' matter must appear to be, with due respect, clearly incorrect.

The view is further opposed to the other necessary attribute also stated by Webster and Halsbury and accepted by the learned Judge as "succinctly projects the meaning of the 'interlocutory': namely, pertaining to a provisional decision” '' (Webster), and "gives no final decision on the matters in dispute." (Halsbury); (stress added). Now, is the determination of the question of the valuation and court fee by the learned Judge only 'provisional' and not final? If it is not final, then by whom and when and how can it be revised, altered or finalised? Does any provision of law prescribe it ? The next question dealing with the scope of the jurisdiction covers this aspect also.

3. As already noticed the question of valuation and court fee has to be determined before the appeal memorandum is admitted, registered and numbered on the file of the court, in other words, 'at the threshould' as indeed is the practice too, in our High Court. Does the statute make any specific provisions laying down the persons and the manner for determining this matter? Yes, S.11 of the Kerala Court Fees Act does this. But this vital provision, regrettably the learned Judge has overlooked S.11 provides that in the first instance the officer entrusted with the duty of admitting and filing the Memorandum of Appeal will scrutinise it for any defect including of course the correctness of the valuation and court fee and if satisfied admits it on the register with a number assigned to it If on the other hand the correctness of valuation and court fee (other defects if any apart) is not accepted by the officer and the party (appellant) disputes the officer's opinion:

"The question shall be referred to the Taxing Officer who shall decide the same:"

"Provided that if in the opinion of the Taxing Officer the question is one of general importance he may refer it to the Chief Justice...or such Judge or Judges of the High Court as the Chief Justice shall appoint" and

"Provided further that, when the case comes up for disposal before the court, the decision of the Taxing Officer may be reviewed by the Court".

Thus if a dispute as to the correct court fee arises (and this can arise only before the Memorandum of Appeal is admitted and registered) the decision has to be made only by the Taxing Officer presumably after hearing the party, and it can go to a Judge or Judges for decision only through the Chief Justice, and only if the Taxing Officer is of opinion that the question is one of gene­ral importance and accordingly refers it to the Chief Justice or the Judge or Judges he shall have appointed in this behalf. In no other way can it be taken up or decided by a Judge or Judges And under the second proviso, even at the final hearing the court which hears the appeal (in this case a Division Bench) can review only a decision of the Taxing Officer, not of a Judge or Judges appointed by the Chief Justice in this behalf So where a Judge or Judges had to make the decision in the manner prescribed, it would obviously be 'final' and not 'provisional' as it would be if it were only 'interlocutory'. And it is a well established rule adopted by Jessal M. R. a century ago in Taylor v. Taylor and has stood the test of time and been applied by the Privy Council and our Supreme Court in several cases,

"That where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all, and that other methods of performance are necessarily forbidden. The principle behind the rule is that if this were not so, the statutory pro­vision might as well not have been enacted".

It is also an equally well established rule that

"When a statute confers a power on certain judicial officers, that power can obviously be exercised only by those officers. No other officer can exercise that power, for it has not been given to him"—

See State of Uttar Pradesh v. Singhara Singh, AIR. 1964 S.C. 358 (paras& 15); Ramachandra v. Govind, 1975 SC 915 (Para 25) etc Thus S. 11 has laid down the whole scope of the enquiry into and determination of the question of C. F. and no Judge has jurisdiction to take it up and determine it outside of S. 11 of the C. F. Act, in the High Court.

It is apparent that in the instant case valuation and court fee payment were accepted as correct by the concerned 1st Officer himself without demur, and the Memorandum was duly admitted, registered and numbered as A.S. 284 of 1979. (This vital fact also appears to have been overlooked by the learned Judge). Thus, no dispute having had arisen no reference to and decision by the Taxing Officer, and his referring any dispute to the Chief Justice and through him to any Judge, ever arose in this case. It had validly and effectively crossed the threshold and fallen into the seisin and exclusive jurisdiction of the Division Bench which alone was thereafter competent to deal with it in any manner allowed by law, and no single Judge could trench upon its jurisdiction or prejudice the final hearing and disposal of the appeal on its merits by the Division Bench. How then did the learned Single Judge get any jurisdiction to entertain and decide the question of the valuation and court fee payment in the instant case? Quite obviously then the assumption of jurisdiction and making the decision in the court fee matter by the learned Judge were not authorised by law, and hence a patent nullity, having no legal existence or binding force.

4. Next, as to the scope of S. 52 of the Kerala Court Fees Act, and the merits of the view on the actual valuation and C. F. payable, in the case. (I) When the learned Judge says that "under S. 52 of the C. F. Act, valuation of the cause of action of the suit has to be the same as the valuation in the court below", he falls into a patent error and confusion of ideas. What the Section says is:

"52—Appeals. The fee payable in an appeal shall be the same as the fee that would be payable in the Court of first instance on the subject matter of the appeal";

and a proviso and four 'Explanations' follow qualifying the above 'general statement'(stress added). The "fee payable in an appeal” is obviously not on the value of the "cause of action of the suit, "as the learned Judge says. Nor is cause of action of a suit what is valued; what is valued is the 'claim of relief, depending on the 'subject matter' of the action. While cause of action means every fact, which, if traversed it would be necessary for the plaintiff to prove in order to support his right to the judgement of the Court", the "subject matter" refers to "the right which the plaintiff, (here the appellant) seeks to enforce". In an appeal it is the subject matter of the appeal which is not necessarily the subject matter of the suit in the court of first instance, that falls for C. F. taxation, because, as expressly stated in Explanation (4) to the section under which the appellant is seen to have had expressly valued his appeal, (but which also the learned Judge overlooked)

"where the relief prayed for in the appeal is different from the relief prayed for or refused in the court of first instance the fee payable in the appeal shall be the fee that would be payable in the Court of first instance on the relief prayed for in the appeal: (stress added).

The plaintiff in the Court of 1st instance had asked for eviction of the tenant on the sole 'basis of title' to the property (relief-A) and valued the property at Rs.24,000/-and paid C. F. on it, but the eviction on this basis or 'ground' was refused as the Court had no jurisdiction to accept that ground for eviction in the face of the express statutory prohibition contained in S. 11 (I) of Kerala Act 2 of 1965. He nevertheless granted him agratuitous award namely, 'declaration" of title which was not asked for in the plaint nor -valued and any C F. paid on, in the Court of first instance, so that that gift of the declaration which having been outside the pleadings and hence beyond the court's jurisdiction, is itself a patent nullity and could very well be ignored. In any event it could not be any more than a collateral 'finding' and the appellant has not asked for any relief against it in the appeal, and hence it was obviously no part of the "subject matter of the appeal". Even if it were, it could not be liable for C. F., as the relief of a declaration had not been valued (as well as not asked for) in the Court of first instance, and the plaintiff alone was the person to value that relief under the law. How then did the rejected and prohibited relief of eviction on basis of title, become a subject matter of the appeal and render the appellant liable to pay court fee on it, passes understanding When the sole basis, namely title, on which the eviction was sought was found to be patently unsustainable in law, the only course open to the learned Sub-Judge under law and justice was to dismiss the suit; but instead, he suo moto adopted without any jurisdiction, the alleged 'arrears of rent' as a basis or 'ground' for granting eviction, saying clearly that "the plaintiff is allowed to recover the building on the ground of arrears of rent." And it is this relief based on this ground which is challenged and forms the subject matter of the appeal and hence liable to be taxed to C. F. No doubt the Sub-Judge has added also and the learned 'Single Judge' has repeated it, that the suit was "filed due to a direction in an order passed in a Rent Control Petition". It is however, not apparent, not easy to understand, the relevancy of this to the question at issue. Whatever was or might have been the reasons or motives that impelled the plaintiff to bring his suit, what the appellant and the High Court were concerned with was obviously only What was the decree passed m the suit with which the appellant was aggrieved and concerned to appeal against, and he can be liable to value and pay C. F. only on the decree he challenges, not on the plaintiff's reasons or motives for filing his suit. That is obviously why appellant paid G. F only on the 'arrears of rent' decreed which has been adopted as the sole basis of the decree for eviction, it being, unlike title, one of the grounds permitted for eviction under the Act 2/1965, and is hence challenged in the appeal. It may also be mentioned in this context that it is difficult to appreciate in what is expected to be an unprejudiced, detached and high toned judicial pronouncement, the unnecessary and insinuative remark that "the appellant has taken recourse to a lesser valuation to escape from the real (?) court fee payable" (stress added).

6. Other factual errors also appear in the order of the learned Judge, as apparent on the face of the records of the case. For instance, the learned Jadge fell into patent error when he simply adopted one of the many misstatements and confusion of ideas of the Sub-Judge when, for a justification, he says that "the deft, disputed the title of the landlord." A reference to the Memo of Appeal shows (ground-8) that what was actually questioned was the landlord's right or title to the possession of the plaint Schedule property for various reasons For example, can a landlord have any right or title to disposses a tenant before his lease expires or if the demise were for any reason a permanent one? Is this the same thing as denying the landlord's title to the property ?

7. It will thus be seen that the learned single Judge fell into grave and manifest errors of law and fact in giving the rulings and making the order in question, which, therefore, in the interests of law and justice, requires reconsideration at the earliest opportunity.