Wednesday, August 08, 2007

With cell phone, in jocund company

What do you make of red coloured walls in court premises? Some of the walls inside our High Court premises have been painted red recently. Bureaucratic lethargy is also conjured in the mind as preserved through red walls. If you are walking past the musty files strewn about in the corridors, waiting to be re- arranged in the steel shelves, you will realise, the mix of colour and smell give you rather a glum feeling. Courts are rather un-amusing places. Your own perception of what is just and what result that you can obtain for your client put you through an unenviable ordeal, when you enter the court halls. A judge knitting his eye brows to get at the truth through the facts and law enmeshed in a cumbersome snare of arguments is weighed down to hold a tough countenance.

However, cell phones have contributed their own bit to enliven the lives of all persons, notably lawyers in courts. Lawyers with cell phones, who are walking in the corridors or standing under the trees or sitting in the lively benches outside court halls, present themselves in various moods, depending on the persons that are holding the conversations at the other side. The ‘switch off cell phone’ warnings on the court doors, notwithstanding, they ring, tweet, hoot, sing, drum at all times through the court proceedings. Reactions to them vary from among the judges, court staff, lawyers and litigants.

A lawyer speeding out of the court hall is probably choking the instrument with his hands inside the coat pockets, when his fingers are not nimble enough to silence it by pressing the correct button. The judge looks up to the sound of disturbance but he normally lets it pass. Litigants face a rather stiff chase. Chopkidars trot out speedily to catch the culprit and snatches the instrument to hand it over to the court officer. One thing is certain, the ringing cell phone is an object of revulsion, its possessor, a guileless character at that moment. It requires therefore enormous resourcefulness to appreciate a moment of levity in the rather mundane, humourless forays within the court halls.

Recently, when the cell phone rang and not knowing where the sound was coming through, every one in the court hall looked up in embarrassment to spot the offender speeding out. The judge looked up too, leaned on his large table and queried with a twinkle in his eyes, ‘why does that person not have the latest ringing tone’? The lawyers just loved the interlude and broke into laughter. Yet another time, when the cell phone rang, the chopkidar, sitting near the judge facing the lawyers, sprang to his feet to trace the source of sound. He soon realised that it emanated not from the direction opposite to him but came from behind. He turned round and just then the judge slightly lifted himself from seat and pulled out the gadget from his pant pockets to switch it off! Now, the lawyers did not smile back; they exchanged glances with their friends with glistening eyes, by suppressed laughter! Some time ago, when an officer from the registry had been called to receive some stiff warning for some act of indiscretion reflected through some docket entry, he was standing near the judge’s table, when his cell phone rang. He dropped the file that he was clutching at and pulled out the cursed instrument to switch it off. The lawyers froze but the judge just smiled, asked him to leave the hall and see him in his chambers during the lunch recess!

SMSes are less intrusive and still lesser disturbance-prone. SMS jokes are a new genre and they also add spice to relieve the court room dreariness. They transport a whole lot of hilarious material, traversing through distant continents. They are meant to be discarded instantaneously or forwarded only to your most intimate friend! They shall not be, as a rule, allowed to be read from your gadget. Even when the recipient is standing next to you, the practice is to send it to his number for him to read it from his own cell. A joke through SMS is a personal possession!

Spontaneous laughter says Arthur Koestler in his book, ‘The Act of Creation’, is produced by the co-ordinated contraction of fifteen facial muscles in a stereotyped pattern and accompanied by altered breathing. Its manifestation may vary from smile to broad grin to the facial contortions typical of the loud laughter. Civilised laughter is rarely quite spontaneous. Amusement can be feigned or suppressed; to a faint involuntary response, we may add at will a discreet chuckle or a leonine roar; and habit formation soon crystallizes these reflex-plus-pretense amalgams into characteristic properties of a person. Whatever the type of person you are, carry humour with you always. Let the civility of the occasion, time and place dictate the decibels of that expression!

Lofty men in black robes!

Mr. Iftikhar Muhammad Chaudhry was reinstated as Pakistan Supreme Court Chief Justice by the judgment of the 13 member Bench of the Supreme Court on 20th July 2007. In a second part of the verdict, the Supreme Court, 10-3, threw out the reference against the Chief Justice filed by President Pervez Musharraf, calling it illegal. Earlier, Chief Justice Choudhry was engaged in doing precisely what the administration least wanted. He aired its dirty laundry and issued judgments seeking rectification. In 2006, he blocked a government bid to sell the majority of the state-owned Pakistan Steel Mills to a private consortium, a blow that proved a rare and embarrassing check on the administration. Following public outcry in January 2007, the judge also compelled the government to trace the whereabouts of terrorism suspects, many of whom had been allegedly jailed without evidence and prevented from contacting their families. When results were not produced fast enough, he chastised a government lawyer and expressed disappointment with the administration's efforts, a spat the media seized upon.
On 9th March 2007, General Pervez Musharraf virtually suspended Justice Choudhry from the high office on charges of misconduct. If you would want Musharraf’s side of the story, according to him: (i) CJ forced government officials to unlawfully help his son get admission to medical college and then had him appointed as Grade 18 Police Officer. (ii) CJ was entitled to use a 1700cc car, but he used a 3000cc
Mercedes and kept several other vehicles in his use in Lahore, Islamabad and Karachi. (iii) CJ required more protocol than he deserved. (iv) He required senior officials to receive him at airports and was also using helicopters and planes to go to private functions. (v) Use of a BMW Car "RAZIA 1" by his family. (vi) Different Oral and Written Orders in cases worth 55 million PKR. (vii) Asking for more perks than he was eligible for.
Within hours, the public and the lawyers rallied behind the Chief Justice to support him. On 12th March 2007, lawyers across Pakistan began boycotting all courts. There were widespread protests in cities of Lahore, Karachi and Quetta. In Lahore alone, more than twenty lawyers had been injured in clashes with police during demonstrations. What started with lawyers’ protests outside courts, in the streets, ended fortunately through a judicial denouement, was significant victory to the rule of law administered through the system of courts.
Who said that lawyer community has a crab mentality of pulling its fellow beings to doom in times of adversity? Forget small time occasions, when someone amongst them is considered for things slightly higher and petitions go aplenty against the candidate. Put up even an imaginary name as a likely candidate, the complaints box would still be full against a non-existent candidate! But symptoms of mass behavior have been exemplary, when it comes to upholding the independence of judiciary. On 25th April 1973, three eminent judges, Hegde, Shelat and Grover JJ had been superceded and a judge junior to them had been made the Chief Justice. The governing establishment said that they were looking for ‘forward looking’ men who understood the ‘winds of change’. Justice Hidyatullah J represented an emotional concern of the Bar in one word. He said that this was an attempt of not creating 'forward looking judges' but the 'judges looking forward' to the plumes of the office of Chief Justice. On 26th April 1973, the Supreme Court Bar Association passed a resolution strongly condemning the supercession and called upon all Bar Associations in India to observe 3rd May 1973 as Bar Solidarity Day and to abstain from court work. The call was enthusiastically supported by most of the Bar Associations all over India. This was probably the first occasion when the lawyers resorted to boycotting courts, which have become commonplace to express dissent to all types of situations affecting the dignity of the legal fraternity.
Musharraf wanted Choudhry out of way only to clear the decks for an easier extension of the Presidential term when the elections were scheduled around November 2007. With Choudhry firmly in seat and Musharraf’s strength further undermined by the skirmishes at Islamabad’s radical red mosque, it is Advantage Judiciary! Members of the legal fraternity have aspired for high political offices, though seldom have the politicians aspired to enter into the high offices of the judiciary. Subba Rao resigned his judgeship from the Supreme Court to contest for election to the post of President. Justice Jagannath Mishra was elected to the Rajya Sabha on a Congress ticket. Justice Bahar-ul-Islam got a Congress party ticket and then resigned from the Supreme Court to contest a parliament seat from Assam. All this proves that if Hercules could shoulder the globe, the men from legal fraternity could hold aloft at least the moon!

Legal conundrums


"Words, words, words", says Hamlet, in response to Polonius' question, "What do you read, my lord?" Of course, Polonius wants to know the meaning of the words in the book that Hamlet is reading, but Hamlet's answer suggests that they are meaningless. Polonius then follows up with a clarification, "What is the matter, my lord?" By "matter," Polonius means "subject matter," but Hamlet again deliberately misinterprets. He takes "matter" to mean something wrong (as we do when we say "What's the matter with you?") and answers Polonius' question with a question ("Between who?"), as though someone were quarrelling with someone else.
Shakespeare exposes but a facet of comic situation when every word that we say gets misinterpreted the wrong way and the whole conversation gets to circumlocution. This is not just among ordinary persons’ oral exchanges. What do you think happens in statutory texts, where the desired goal is certainty but words fail? When words convey more than what they are intended?
You have to grapple with a whole lot of rules of statutory interpretations, as when “singular” means the “plural”; “masculine” includes “feminine”; the “present” includes the “future”; “shall” means “may” or vice versa. The expressions may pertain to tense, sex, numerals and what have you!
Recently, the issue before the court was what the expression, “children” meant in a college prospectus; whether it included “grand children” and all the progeny through successive generations. In curtailing the meaning to what the word meant in common parlance, in the context of extending privileges of reservation of seats for admission to educational institutions to children of freedom fighters, the judge showed the absurdity of argument by taking it to the logical end. He wondered if the extended meaning canvassed would not make possible a claim by a descendent of a freedom fighter that participated in the First War of Indian Independence.. He rejected, by the same breath, that even if there might not be any person among the present generation of students who could be children of freedom fighters, it shall not avail to a student to make an artificial construct for a plain meaning of an English expression.
Even under the Indian Succession Act, if the child who is a beneficiary predeceases the testator, the legacy does not lapse but survives to the grandchild. However, a bequest to A and his children or to A and his heirs or to A and his family will be taken as gift to A only. Here the reference to “children” or “heirs” or “family” would be taken as superfluous and discarded. How will you interpret it, if the bequest is to A and his brothers? Discard “his brothers” and give the legacy to A? No, logically, it may be so, but the provision of law would state that the legacy would be taken by A and his brothers. Please also note that the masculine does not include the feminine! The sisters cannot be taken as included, in the absence of specific expression in the bequest.
Again, words which express relationship, such as ‘child’, ‘son’, and ‘daughter’ must be understood as denoting a legitimate relative, says a provision under the Indian Succession Act. How do you reconcile this rule when the traditional Hindu Law accorded to an illegitimate son, subject to some exceptions, a share in the property of the putative father equal to half as much as a legitimate son could get? Later amendment to the marriage law enabled a child born through void or voidable marriages to claim a share to the property of the father as if he were a legitimate child. This change in law did not help, said even a liberal-minded judge, in restricting the bequest only to a legitimate child.
Just not the succession laws, the General Clauses Act have whole lot of expansive definitions. There, the ‘person’ will include any company or association or both, of individuals, whether incorporated or not. The expression ‘sign’ says another definition as including a mark, if it is with reference to a person who is unable to write. A will would include a codicil and a son would include an adopted son.
All this, give us lawyers privileges to be imaginative. Any accidental slip in a document could be explained by supplying words. Poor legislative draftsmanship could be buttressed by expansive interpretation. Expressions in judgments could be given extended meanings or restrictive interpretation, depending on what favors your client. Words, words, words… now, the expression is used not in the sense that Hamlet used but in the sense Polonius wanted to know!

Pain & No suffering

Pain and suffering are a twosome expression that is believed to follow one another, like dark clouds and rain or, that goes well with each other, like, bread and butter. They constitute an important head of claim in tortious action and for quantification of damages. Pain is a qualitative response to an unpleasant stimulus that could be either physical or mental. Physical injury as resulting in pain is more common than psychiatric injury resulting either to a primary victim to the words expressed or to a secondary victim to the scene beholden of a physical wrong done to another. Both the Indian Penal Code and the laws that allow for compensation for civil wrongs recognize physical and mental injuries as coming within the definition of injuries. If a person inflicts pain voluntarily or accidentally to you in a legal relationship that requires an obligation not to cause harm, the act becomes either an offence or a civil wrong. If it is self inflicted, such a consequence may not follow.
When an injury is caused to you, by whatever means, how do you make any sense to it? The answer to it is not always legal and it is in the realm of religion. Medical dictionaries will list several entries to pain but when we are talking about suffering, it is to theology that we turn to. The scientific attitude is just that -- scientific: a methodical, reasoned approach that intends to understand the subject and so achieve human control. The religious attitude, on the other hand, tends to trail off into the big questions. It asks about the meaning of pain and philosophizes about how one can bear pain.
Suffering, the Hindu tradition tells us, is for the body but not to the soul. They are the result of your past actions, of the unfolding of the law of karma. So long as there is body, there has to be pain in some form. The issue is how to cope with it, without suffering. Rabindranath Tagore expresses the sentiment: “Let me not beg for the stilling of my pain but for the heart to conquer it.” Acquisition of worldly wealth does not always yield pleasure. It is the renunciation that relieves the human suffering, the Buddha expounded. Christianity sees pain and suffering as symptoms of the sin in our world. So the pain and suffering in and around us can become occasions for us to turn to deeper realities. They can invite us to repentance, forgiveness, compassion and ministry. Teachers of Islam say that pain and suffering are the ultimate test to humanity to righteous conduct - To see if we will turn towards Siratul Mustaqeem (the Straight Path), or away from it.
The Saint-Poet Tiruvalluvar devotes a whole title (no.63) to the attitude to be adopted in response to pain caused through sorrow and tells us how not to suffer. There is no better technique than laughing away sorrow. Stifle the suffering by equipoise. Realise that sorrows always target human beings and hence do not suffer. The person that does not crave for happiness will not sulk that sorrows bring suffering. Treat happiness and sorrow alike. Confront suffering with cheer; it is a quality that even your enemy will extol in you!
As lawyers, we unwittingly play a vital role in alleviating or adding suffering to innumerable litigants. The litigation itself is pain. If it secures the relief sought for, the suffering is obviated. If it denies it, there is a greater suffering. The one thing that we need to resist is to stop undermining the judicial system by malicious comments. We have the tools to stem the rot. Say ‘no’ to vexatious litigations; have a penchant for research and hone the skills of pleadings and advocacy; have passion for law and strive for justice. In pain and injury, learn to laugh. Lawyers pick up several techniques to let the news of the client’s defeat to unfold: One, by telling the client that the judge has advised the client to go to the higher forum! Two, money has changed hands; three, the courts cannot enforce the decree in the near future; four, a fresh suit is possible to stifle the decree. A lot of us are not given to such crafty ways. We also suffer with the client. It is vicarious. Even if we have personal calamities unrelated to a case we have handled, we attribute our sufferings to some wrong done on behalf of our client to the other side. The best prescription seems to be to suggest settlement. What is your take?

Monday, June 18, 2007

RASHTRAPATH(N)I
Why look for differences, instead of similarities between sexes? Are you complaining, ‘if men and women are equal, why clamor for privileges or look for special treatment?’ Melvin Konner, a renowned anthropologist poses the question, ‘Why raise gender differences?’ and answers in his book, The Tangled Wing that ‘insistence upon the nonexistence of significant biological basis for the different behaviors (that) we observe in the two genders, can only obscure the path to understanding, amelioration, and justice. The truth may not be helpful, but the concealment of it cannot be (helpful either).’ Ignoring differences may lead to temporary harmony but it does not make them go away. Differences that you wish to tuck away from view remain as differences. As one thinker would say, ignoring the aggressive nature of males or the female inclination toward mothering does not eliminate the differences; it only drives them underground, with predictable eruptions later, often involving conflict.
More women are engaged primarily in domestic tasks and child care at home, while the men go out to work. It may be possible to cite examples spanning the entire gamut of history by references to women in every facet of human endeavor, from the Vedic times to the contemporary India, from being a goddess personified to philosophers; to poets; to scientists. They will continue to remain as exceptions and cannot prove that women have obtained the status of equal competitors in all walks of life. Women were first engaged for cheaper labor. Women became nurses, teachers and telephone operators. The strict segregation of women into certain occupations began to lessen somewhat as new opportunities arose for female workers in traditionally male occupations. New technology has meant that many tasks that once required heavy physical exertion, and hence were restricted to men, can now be performed simply by pressing buttons, sitting in push-back chairs in air-conditioned offices. There have also known how to wield power.
Power, Dr.Bevans says, is can-do-ness, the capacity to make-things-happen, the ability to accomplish results in the world. At first glance and in most conscious thinking, men are more powerful than women. It appears, if we don't look below the surface that men are in charge of things, including women. Men do act and talk big; we "show off" and stand out. We like to think we are the more powerful of the genders, and women, for pragmatic reasons, often let us, even support, outwardly, such illusions: "You're so big and strong; I'll let you make the camp (and money)."
Hear Dr.Bevans further say: ‘The male mode of dominance and aggression easily looks more powerful than the female mode of submission, where powers are most often hidden. Men seem to be more powerful than women. Peer more carefully, however, below the thin veneer of appearances and muscles; look longer, past present tense; listen for more than what is spoken; watch for long range results rather than short term displays; and you may see that things are not what they seem. With obvious exceptions, as in all our other gender differences, femininity, by and large, is more powerful than masculinity.’
How would you rate these women - Indira Gandhi, Benezir Bhutto, Khaleda Zia, Sheikh Hasina, Srimavo Bhandaranaike, Chandrika Kumaratunge, to take examples only from the sub-continent? True, they have all had either their fathers or spouses or both, as active politicians, who consciously cultivated the way for their ascension to seats of power. A woman, with no such support but making it to higher echelons, in spite of several handicaps, biological and societal, by sheer industry and iron will commends respect. She shall progress the same way, meriting every step in the ladder. Such a person shall not stop somewhere in the middle and demand that she shall be given way, because she is a woman.
Every democratic expression in India, including the election process, is a new lesson itself. The issues involved in the choice of President and the gender preferences are matters of topical interest. Laws, too, have a gender bias. Be it in the Indian Constitution or Penal or Labor laws, women, like children, are considered a class by themselves that deserve to be treated differently, equality clauses notwithstanding. The crutches are only for pulling one to get up. Once raised, she ambles across, tossing the props to the wayside. A Indira or Khaleda or Chandrika at the helm of a nation’s ship does not give the impression of all round women empowerment. The esteem that Dr.Radhakrishnan earned or how Dr.Kalam is reckoned, is sui generis. They are men of their own merit. Does the first citizen of a country, be he or she, get the respect for what the nation earns for the person or does the nation get the respect for the esteem that he or she commands?
K.Kannan

Saturday, June 09, 2007

Big brother, love personified!


Big brother, the love personified!
George Orwell’s all-seeing leader of the dystopian Oceania, Big Brother, symbolizes the eyes and voice of the state machinery that has ubiquitous presence: around the street corner, up the billboard, in your bed room and literally purveys all your activities. This character gave birth to a kind of real life soap, invented by the Dutchman John de Mol
and developed by his production company, Endemol. It is reported to be a prime time hit as a TV program in over 70 countries. The weekly tasks for the participants are set by an invisible big brother.

G 8 is some kind of a big brother in the global political arena. Here it is not just one person, but an assemblage of self styled mighty eight that condescends to set the agenda for governance for the rest of the world. Together, these countries represent only 14% of the world population, but they account for nearly two thirds of the world's economic output measured by gross domestic product
. China and India are two fast emerging leaders in world economic development and it is not possible to drop them in the wayside. It is therefore not surprising that there have been later formulations to accommodate them in some way. It is done through a separate set of meetings known as the "G8+5, attended by representatives from all eight member countries in addition to the People Republic of China, Mexico, India, Brazil and South Africa; created at Gleneagles, Scotland in 2005, primarily to reach a consensus statement on a post 2012 Climate Change settlement. Representatives from the European Commission are present at all G8 meetings.

As the annual summits are extremely high profile, they are subject to extensive lobbying by advocacy groups, street demonstrations by activists and, on rare occasion, terrorist attacks. The most well-known criticisms center on the assertion that members of G8 are responsible for global issues such as poverty
in Africa and developing countries due to debt crisis and unfair trading policy, global warming due to carbon dioxide emission, the AIDS problem due to strict medicine patent policy and other problems that are related to globalization. G8 leaders are therefore pressured to take responsibility to combat problems they are accused of creating.

Maybe, Asia and Africa will join some day to float a new organization and call it A2. Each of the participating countries will identify what it is strong in and leave a trail of rich legacies for the rest of the world to benefit from. India has vast repertoire of literature, philosophy and music. They will perhaps shift emphasis only from preoccupations with economic issues to ethical and cultural considerations. The values of strong family ties will re-emphasized and a spirit of camaraderie that lays the foundation for vasudeiva kutumbam will emerge. A2 will not be a big brother but a benign patria potestas.
Incidentally, a big brother, in the Indian understanding, is not one that bosses around. He takes the mantle of a father, when the latter quits. A brother protects the honor of the family and plays a decisive role for finding a suitor for his little sister. In both Ramayana and Mahabharata, the filial bonding between brothers exemplifies the best traditions of Indianness. Look out for the equivalent expression for brother in every Indian language. From Anna, to Chetan, to bhaiya, they spell out an immediate affectionate relation who oozes love to the younger ones. Brothers seldom fight, the Ambanis and Singhanias, notwithstanding. Or, if they do, the big brother knows how to quell it and bring harmony. If the family branches from the first degree of brothers to the second degree through the children to cousins, they become pangalis. Fissures appear; partition actions emerge. From the days of Pandavas and Kauravas to the present day, pangali fights are commonplace. The big brother knows when to partition to keep amity. But, have you not played a lawyer to fighting brothers? Or, a mediator to querulous siblings? Or, a Judge to litigious family? Identify the big brother amongst them who can put an end to the litigation. We just cannot afford certain kinds of litigation in courts. No other country has, perhaps, partition actions amongst members of the same family, as we are now having. We shall use the courts for settling scores with the government oppression, wherever it exists; to make the government officials work; to smoothen industrial relations; to bring honesty in commercial transactions; to bring the culprits to book; to eradicate the scourge of untouchability. So, what do you propose to do, when you have a partition suit between brothers? Go to the big brother!

Thursday, June 07, 2007

Get young by the day

Are you frequently talking about the ‘good old days’? It is probably a symptom that you are getting old! How do you bring back the youth in you? To many of us, the constant refrain is that the present is choking us and the worthwhile distraction is a fanciful flight down the memory lane about the things of the past. As Thomas Carlyle would say, ‘The past is all holy to us; the dead are all holy; even they that were wicked when alive!’ That is why it is said that the past is the only dead thing that smells sweet. Decrying the present is an eternal malady. The great old days that your father talked about were actually days of slavery under the foreign rule and how Bharati fulminated with emotion about ‘the heart that is seared when you think about those cowards’, in his words, ‘Nenju porukkudillaye…’

We reminisce in the past with pleasure, whenever the talk hinges about the lawyers’ practice in courts; of the doyens of the bar that strode the courts’ corridors; about the great judges that presided over the courts; of their judgments; In contrast, of the conduct of lawyers today, especially, of the juniors. Comparisons will be made point by point between the lawyers and judges of the yester-years and present insolent disposition amongst the youthful lawyers and the slothful ways of some of the judges.

The quality of the lawyer would be recalled as stupendous, if he was fluent in the language, with a quick recall of case laws from memory. The repartees and the wit that he was capable of generating would be topics for discussion at parties. If he had a sharp tongue and could set off a breeze in court halls, it would be an additional resource to gloat over. Objectively, all these qualities are not unique to any one particular generation. Will you not honestly concede that your son or daughter in school or college reads more and has a greater fund of knowledge than you did or had in your school or college days? He or she is perhaps more articulate than you were capable of at his or her age.

Look at the books, the number of enactments and the rich store of precedents that the present generation acquaints itself with, by the time they join the profession. Computer savvy that they are, they have enough skills to pull out in a trice in a sheet of paper all the important cases that are relevant for your cases, the cases that were followed and cases that were overruled. Many psychometricians agree that IQ levels are increasing generation after generation. Among the various causes outlined are: better nutrition, more educational toys, computers and TV programmes. Talking and writing skills are no less on the decline among the younger generation. Long winding arguments are the old lawyers’ bane. Slick presentation belongs to the emerging younger milieu. The law students of the present generation hone their skills in the art of advocacy and preparation of memorials in their moot court circuits across the globe, rubbing shoulders with the brightest in the East and the West.

One must always maintain one's connection to the past and yet ceaselessly pull away from it. Nostalgia is a seductive liar! You are prone to exaggerations, while recalling events of the past. A famous writer once said, “Many are always praising the by-gone time, for it is natural that the old should extol the days of their youth; the weak, the time of their strength; the sick, the season of their vigor; and the disappointed, the spring-tide of their hopes." Not just the better days, it is certainly romantic to talk about even poverty, so long as it is in past tense; of your travel by foot or by a rickety bicycle, if you have now a car to drive by!

To look back into antiquity is one thing; to go back to it is another. Talk about stalwarts to bring home to the new generation the continuum of the great traditions that they have inherited in a way that Fali Nariman talked about, at the august occasion of unveiling the portrait of Govind Swaminathan, a towering personality that wrote himself among the greats of the Madras Bar. He recalled, “Govind never mumbled; he always completed the sentences.” Our wealth is the present generation of young lawyers and judges. Invest in them all the confidence; Help them to flower to their fullest potential; prepare them adequately to a smoother transition. As old belongs to the past, youth belongs to the future. Even the old is young if (s)he plans and strives for a bright future ahead.

As bad as you may portray to day, tomorrow ere long, will be your own good old day!

What's your vote on father-in-law?

What is your personal rating of your father-in-law? Every relationship through (lawful) marriage up to the second degree gets a suffix ‘in-law’. Among other relatives for a man, the father-in-law occupies a unique position. He is for ever visualized as a person to whom all and sundry demands could be placed! He treats you as ‘mapillai’, by which expression you enjoy several privileges; It is even a bye-word for being fashionable (‘dress like mapillai’); enables you to play tantrums ( ‘mapllai murukku’) and even complain freely about his daughter, what you can’t do directly to your wife!
In the pre-independence days, when English judges presided over High courts and subtle principles of Hindu law were expounded through judicial pronouncements by reference to original Sanskrit texts, lawyers had to strain every sinew to help judges lay down the correct law. A story attributed to Rajah Iyer, a doyen among lawyers, was: He was explaining the position of various legal heirs and their respective entitlements to a Hindu father’s estate before an English Judge. The judge, who was ill at ease in following the trail of arguments, asked in a matter-of –fact tone, ‘Tell us, Mr.Rajah Iyer, what is the share of the son-in-law in the father (in-law)’s estate? Taken aback by the na├»ve interjection, Mr.Rajah Iyer regained his composure in a trice and told the judge of what the law did not actually accord to the son-in-law but what he was accustomed to, in practice, ‘My lord, a son-in-law gets all the property that he could lay his hands on; not merely after death, but even during the life of the father-in-law!’
The customary Hindu law, while it placed fetters on the right of a Karta to make gifts of joint family property, makes an exception to reasonable settlement of properties to his daughter at the time of marriage. Going by the virtual possibility of husband’s control over his wife’s property, it places the resources of the father-in-law in the hands of the son-in-law soon after marriage. It is not merely the right exercised over the father-in-law’s bounties by a male through his wife that is real, but even a pre-nuptial arrangement by way of gift by the father-in-law to the prospective bride before marriage has been upheld by judicial innovation by terming it not as a gift but a transaction supported by consideration of marriage. While a father-in-law may reward both the son-in-law and daughter-in-law, it is the female’s property that makes possible for a father-in-law to figure as one of the heirs, as ‘heir to the husband’ under section 15 of the Hindu Succession Act. To a male Hindu dying intestate, pitifully, a father-in-law has no scope whatever to figure as a heir. A widow of the pre-deceased son is however a heir to the father-in-law.
The wealth of jokes on every type of individual and for every occasion does not make fun of the father-in-law. English jokes on mother-in-law depict her as a person that plants herself in the house of the son-in-law, drains his resources, but never returns to her husband’s house. Mother-in-law and daughter-in-law tussles are proverbial but you have never heard of any slur through any joke or adage about a father-in-law, have you? Yahoo, which hosts a website soliciting answers to difficult questions, raises the question, why there are no jokes on father- in- law, on a same degree of concern as coping with enigmatic issues like, why you press a TV remote control button hard, when you know the battery is weak or why banks collect extra charges, when they know there are ‘no sufficiency of funds’!
The status of father-in-law, as a heir, vis- a- vis the property of a female, though a distinct possibility, in terms of inter- personal relationships, he does not enjoy always the exalted position through the eyes of a daughter-in-law in all types of situations. A father-in-law is also normally paraded along with the mother- in- law and the husband, in dowry prohibition cases. Matrimonial misdemeanour cases also sully the image of the father-in-law, who otherwise deserves a high pedestal of respect. Imrana’s travails and the alleged fatwa issued by Darul Ulooma Deoband for the violence committed on her by directing her marriage to the perpetrator of the wrong, are best forgotten as rare aberrations of human conduct that are not repeated ever. The common perception is, however, still a high degree of veneration for the daughter-in-law to the father-in-law.
All things considered, a father-in-law is a wonderful human being in the extended family. The vacation has not ended. Have you not visited your father-in-law yet; or, if you are a father-in-law, have you not pampered your son-in-law?
K.Kannan

Artistic obscenity

M.F.Hussain, Shilpa Shetty and Chandra Mohan have suddenly newfound friends and enemies. The issues underlying the highly charged emotional fulminations against them and in a greater degree, to the righteous indignation among the intellectual elite against the self-styled moralists have been the dimensions of license to the forms of expressions that arts and artists shall enjoy through their chosen medium. In all the cases, police have acted on complaints of certain sections of the public, who have claimed that their religious sensibilities have been hurt or the cultural mores of our country have been undermined; and in two of the cases, the magistrates have been persuaded to issue summons to the artists to answer to the criminal charges.
M.F.Hussain would draw the picture of a nude woman and call her Goddess Saraswati. Nude pictures per se would not have made a difference, but when he decides to call the painting as of Goddess Saraswati, he draws flak. If two celebrities kiss each other in a tango dance embrace in full view of the public and that too in an awareness campaign of AIDS, you may not probably expect cheers in praise of the celebrities. Exhibition of students’ talents in their campuses invariably attract public attention (have you not visited the cultural fests in college campuses, although you are not a college student yourself?) but in Vadodra, the exhibition was a part of an appraisal program of the student-artists. Depiction of deities in prurient form, so long as the public entry had not been barred, could not have gone un-noticed.
Since when have we become intolerant to artistic depiction of nudity and called it obscene? Among the best-known examples of erotic literature are the Kama-sutra and other Sanskrit literature from about the 5th century AD, Persian lyric poems called ghazals, Ovid's Ars Amatoria, the 16th-century Chinese novel Chin p'ing, William Shakespeare's Venus and Adonis, the writings of the Marquis de Sade, and D.H. Lawrence's Lady Chatterley's Lover. Among the most explicit sexual depictions in the world in the form of sculptures, Khajraho and Konark may be the most outstanding. If tolerance to such art forms was possible in India so many centuries back and also elsewhere in the world, why has it become different now?
Religious obscurantist among Hindus, religious fanatics among Muslims and dogmatists among Christians, the main religious groups in India, are always lurking. You can not simply wish them away. If we are talking about Khajraho or Kama sutra, an extensive knowledge of the historical context in which the artists lived and worked is also necessary, as well as empathy with and understanding of a particular artist's ideas, experiences, and insights.
Even in the West, the tolerance did not come in a day. In 1559 Pope Paul IVassigned Daniele the task of painting in draperies to cover the nudity of many of the figures in Michelangelo's ' Last Judgment' in the Sistine Chapel at the Vatican. Immoral works also were suppressed in Protestant countries such as England, where, prior to the 18th century, restrictions were applied almost exclusively to antireligious or seditious acts or publications, rather than to obscene material in the modern sense. Perhaps the most celebrated obscenity trial in 19th-century France was that of
Gustave Flaubert, who was charged with outrage to public morals and religion for his novel Madame Bovary (1857). In U.S.A., the Comstock Act (1873)named for its chief proponent, Anthony Comstock, provided for fine and imprisonment of any person mailing or receiving obscene, lewd, or lascivious publication and it became notorious as the basis for the widespread suppression not merely of pornographic books and pictures but also of publications containing legitimate medical information about contraception and abortion, as well as contraceptive devices themselves! The difficulty of the task of identifying what was obscene was reflected in Associate Supreme Court Justice Potter Stewart's concurring opinion in Jacobellis v. Ohio (1964), which dealt with the alleged obscenity of a motion picture: he wrote that, though he could not define obscenity, ‘I know it when I see it’.
There has been some gradual shift in sexual morality, and the Encyclopedia Britannica observes that obscenity laws in Australia, Canada, the United States, and western European countries were gradually relaxed beginning in the 1960s. Similar developments occurred in countries in Eastern Europe following the collapse of communism there in 1989. For example, in the Czech Republic and Poland in the 1990s, sizable pornography industries developed, and they faced little legal intervention or censorship from the government. Generally, the new legal environment in North America and Europe favoured greater sexual permissiveness and the right to individual privacy. Perhaps the most significant development in this regard was the decriminalization of homosexuality in many countries and the removal of proscriptions against depictions and discussions of homosexual relationships in books, motion pictures, and other media. Countries in Africa and Asia generally have been slower to liberalize such laws, and India herself has maintained the older British obscenity laws and definitions.
In our present times, there is a mutual distrust among the various communities and we have to evolve a new ethos and a holistic approach to understanding art in all its diverse facets. The time has just not arrived. Read the provisions of Indian Penal Code on offences against hurting religious sentiments, obscenity and homo-sexuality. You cannot have the provisions in the statue book and still say that the certain sections of the public, the police or the magistrates are wrong, can you?

Sunday, February 04, 2007


K.Kannan, Editor, Madras Law Journal with R.Yashod Vardhan,

Advocates, Madras High Court


The law must be stable, but must not stand still’, said an eminent US Jurist, Roscoe Pound. The march of law is forever a forward progression. Law obtains refinement only through lawyers’ oration and judges’ pen. The year 2006 has seen significant strides in the realm of law. We take pleasure in presenting this subject after a let-up for quite a few years. However, there is no pretension to digest all the case laws; we have limited our observations to footprints left behind by Supreme Court of India and the Madras High Court alone seen through the prism of the issues of the Madras Law Journal.


Of the Madras High Court judgments, there is a deliberate restrictive ring that we have drawn for ourselves by treading mostly on Bench decisions of the High Court. The salutary rule of stare decisis is: What has once been settled by a precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly to be sacrificed.’ (Cardozo in The Paradoxes of Legal Science [1928]). There is no greater guarantee for strongly laid foundation than pronouncements from larger Benches. Resolving inconsistencies or vagueness in judgments through authoritative pronouncements by constituting Full Benches have been realized in full measure in the year 2006.

Arbitration and Conciliation Act


Can the time taken by a party in prosecuting bona fide his remedy before a court which has no jurisdiction be excluded for the purposes of computing the period of limitation prescribed for setting aside an award under Section 34 of the Arbitration and Conciliation Act 1996? The Supreme Court in State of Goa vs Western Builders (2006) 3 MLJ 97 (SC) held that Section 43 of the Act made the provisions of the Limitation Act applicable to arbitrations as it would apply to proceedings in court. Under Section 34 by virtue of sub section 3 the application for filing and setting aside an award would have to be preferred within three months and the delay can be condoned to the extent of 30 days. By virtue of sub section 2 of Section 29 of the Limitation Act, the applicability of Section 5 of the Limitation Act would stand excluded to that extent. However, the operation of Section 14 of the Limitation Act which provides for exclusion of the period spent bona fide in prosecuting remedy before a court without jurisdiction has not been excluded. Since there is no prohibition provided under Section 34 of Arbitration and Conciliation Act for the application of Section 14 of the Limitation Act and the statute is silent, the two acts can be read harmoniously to advance the cause of justice. The provisions of Section 14 of the Limitation Act have been held applicable to proceedings under the Arbitration and Conciliation Act.


In San-A Trading Co Ltd v I.C. Textiles Ltd (2006) 3 MLJ 154 (SC), the court considered whether arbitral proceedings against a sick industrial company can be proceeded without getting the consent of BIFR as provided in Section 22 of the Sick Industrial Companies (Special Provisions) Act 1985. Section 22 specifies certain types of proceedings, which would come within its purview. Only proceedings, which have the shape and effect of coercive nature, would fall within the ambit of Section 22. Arbitral proceedings being neither a suit nor coercive proceedings would not fall within the ambit of Section 22 of SICA and can be proceeded with without the consent of BIFR.


Acquisition Laws:


The normal principle that proceedings against dead persons are null and void is not without exception. If the proceedings are in the nature of judicial or quasi-judicial proceedings, an order passed against a dead person is a complete nullity. Observing that a distinction was always maintained between judicial/quasi judicial proceedings and other proceedings, the court in G.S. Gopalakrishnan and others v Government of Tamil Nadu and others (2006) 4 MLJ 65 held that the above principle cannot be imported to proceedings under the Land Acquisition Act, 1894 unless it is established that the factum of death was brought to the notice of the acquiring authorities at the appropriate stage. The liability of the acquiring authority to serve a notice of enquiry was held to be restricted only to persons whose names are found in the revenue records and the acquiring authorities were not obliged to conduct a roving enquiry to find out if the patta holder was dead or alive. For the same reason, want of notice to the son, who claimed right to the acquired land, when notice had been sent to the father in whose name the revenue entry stood was held not to vitiate acquisition in N.Vasanthi v The District Collector, Dindigul Mannar Thirumalai District (2006) 1 MLJ 472.

The scope and ambit of Section 48-B of the Land Acquisition Act was considered in R.Shanmugam & others v State of Tamil Nadu rep by its Secretary, Housing and Urban Development, Chennai & others (2006) 4 MLJ 805. Holding that the provision was unique and that the very object of introducing the same was to enable the State Government to re-convey the unutilised lands to the erstwhile owners subject to the conditions enumerated in the Section, the Division Bench that the mere fact that the erstwhile owners had received compensation and handed over possession cannot prevent them from making a request to the government seeking re-conveyance. In the event the government is of the opinion that the lands are not required for any public purpose then it must consider re-conveyance under Section 48-B. It is only when the government is of the view that the lands cannot be re-conveyed that the lands may be disposed by public auction. The court also cautioned that the exercise of the power cannot be mechanical and the discretion must be exercised on fair and reasonable grounds.

What is the proper course of action to be followed by a District Collector in disbursement of compensation when confronted with rival claims in respect of an acquisition under the Tamil Nadu Highways Act was the issue considered and decided in P. Ramakrishnan & another Vs District Collector, Kancheepuram & others (2006) 4 MLJ 1046. Observing that Section 21 (2) did not prescribe as to who would be entitled to claim compensation, the Bench ruled that the District Collector was not obliged to go into the niceties of the rights conferred by the Transfer of Property Act but merely referred the dispute for decision of the court.

Should there be a written request for higher compensation for acquired land? A conduct that unmistakably signifies protest or expression of dissatisfaction without there being anything in writing is sufficient for reference under section 18 of the Land Acquisition Act, according to Steel Authority of India Limited, Salem Steel Plant, Salem represented by its Chief Engineer – Project v Salem Urukkalai Thittathal Nilam Ilanthor Sangam (2006) 1 MLJ 252.

It was a restatement of the established law when the Court held that land acquisition could not be challenged after the award is passed, vide R.Somasundaram and others v State of Tamil Nadu (2006) 1 MLJ 89; Ayyadurai v Special Tahisildar, Adi Dravida Welfare (2006) 1 MLJ 561.


Banking Laws:


In Indian Bank v ABS Marine Products Pvt Ltd., (2006) 4 MLJ 870 (SC), the Supreme Court considered the question whether the Recovery of Debts due to Banks and Financial Institutions Act bars the borrower/ defendant from filing a separate suit or proceeding before a civil court or other appropriate forum. The court clarified that in the earlier decision in the United Bank of India, Calcutta v Abhijit Tea Company Pvt Ltd the court had directed the transfer of the defendant’s suit since the subject matter of the bank’s suit and the defendant’s suit were inextricably connected and the bank agreed for the independent suit to be considered as a counter claim in its suit. The court ruled that making a counter claim was only an option and a defendant having an independent claim against the bank can maintain a suit before a civil court and his suit before a competent civil court cannot be transferred to DRT against his wishes.

A suit was filed by the bank only against the guarantors. The guarantor undertook under the guarantee bond executed to pay and satisfy the bank on demand the sum owing to the bank. The question that arose was as to when the limitation in such a case would begin to run. The Supreme Court in Syndicate Bank v Channaveerappa Beleri & others (2006) 3 MLJ 5(SC) held that the meaning attached to the phrase “on demand” would not be one of universal application. Article 21 of the Limitation Act provides that for money lent under an agreement that it shall be payable on demand, the period of limitation begins to run when the loan is made. However, in Article 22 when money is deposited under an agreement that it shall be payable on demand, the period will begin to run when the demand is made. In the context of Article 21, the meaning of the words “payable on demand” would mean payable from the moment when the loan is made and demand is not a condition precedent. In the context of the Article 22 it would mean “payable when actually a demand for payment is made”. In the context of the guarantee the right to sue accrued when the demand for payment was made by the bank and refused by the guarantors. The court however observed that when the demand is made by the creditor on the guarantor under a guarantee which requires a demand as a condition precedent for the liability of a guarantor, such demand should be made when the sum is legally due and recoverable from the principal debtor. If the debt is barred by limitation at the time of the demand, the guarantor will not be liable. However, where the guarantor becomes liable in pursuance of demand made in time, the creditor can sue the guarantor within the period of three years even if the claim against the principal debtor becomes time barred in the interregnum between the demand and the filing of the suit against the guarantor. It would normally apply to a promissory note or bill of exchange which are payable on demand


Civil Procedure Code


Is a civil court powerless to set aside an order permitting withdrawal of a suit when the plaintiff by mistake had not sought for leave to file a fresh suit on the same cause of action at the time of withdrawal. Holding that in the absence of a specific provision in the CPC, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between parties, the Supreme Court in Jet Ply Wood Private Ltd and another v Madhukar Nowlakha and Others (2006) 2 MLJ 433 (SC) ruled that an application can be filed for recalling the order permitting withdrawal of the suit and the exercise of inherent power by the civil court in ordering restoration was lawful.

A Division Bench of the High Court in Jayaprakash v Most Rev Dr. B.P. Sugandher (2006) 3 MLJ Page 42 had occasion to consider whether a petition invoking sections 10 & 12 of the Contempt of the Courts Act would lie for punishing persons for violating interim orders passed by the City Civil Court, Chennai. The High Court held that the remedy provided under Order 39 Rule 2A is equally effective and efficacious and unless and until the party concerned is able to show that the remedy provided in the Code will not be effective and further the injury and public interest which have been affected are of such a nature that it would require the consideration of the High Court, the High Court will not exercise its extraordinary jurisdiction and entertain an application under Section 10 read with Section 12 of the Contempt of the Courts Act.

A consent decree is nothing but a contract between parties that has the seal of approval of the court. The only remedy available to a party to a consent decree to question the same is to approach the same court and establish that there was no compromise. In view of the specific bar under Section 96(3) CPC, an appeal is not maintainable. An independent suit is also not maintainable, and until set aside, the consent decree will be valid and binding. The Supreme Court in Pushpa Devi Bhagat (deceased) through LR v Rajinder Singh and others (2006) 3 MLJ 258 (SC) laid down that just as a power of attorney holder can enter into a compromise on behalf of the principal, the counsel with a valid authorization can also so act and the phrase ‘signed by the parties in Order 23 Rule 3 will also include a compromise signed by the counsel. The court however cautioned that it will be prudent for a counsel not to act in such cases except when the circumstances warrant immediate adjustment and the signature of the party cannot be obtained without undue delay. The primacy of consent terms in an agreement would even override a clause for arbitration mentioned in the earlier partnership deed, said the High Court in Dr.Rajendran v Rama Chidambaram and others (2006) 3 MLJ 924 and a suit claim made based on compromise agreement cannot be non-suited by reference to the arbitral agreement.

While dealing with the powers of the executing court under O.21 Rule 64 CPC, the Supreme Court pointed out that the expression “necessary to satisfy the decree” cast a duty of care upon the Court to sell only such property or portion thereof as is necessary to satisfy the decree. If the sale is held without examining the aspect and not in conformity with the mandatory requirement, it would be illegal and without jurisdiction (2006) 2 MLJ 289 (SC).

In a case arising under the Original Side rules (Calcutta) and the new dispensation under the Civil Procedure Code (5of 1908) Sec.26, O.VI, O.VII, Amendment Act 46 of 1999 for filing an affidavit verifying facts in plaint filed, the Supreme Court in Vidyawati Gupta v Bhakti Hari Nayak (2006) 2 MLJ 312 said that the effect of failure to file the affidavit along with the plaint and the subsequent filing of affidavit would not invalidate or render non-est the institution of suit.. Filing of verifying affidavit subsequently cures the presentation and dates back to the date of original date of filing.

It was a reaffirmation of settled law when the Supreme Court said in (2006) 2 MLJ 206 (SC) that the court disposing of an application for interim Injunction cannot merely direct status quo to be maintained without specifying what the status quo is. The practice however, never dies with subordinate courts: to a lawyer who cannot convince the judge for injunction or stay, an order of status quo is a face saving weapon handed to a client; for a judge who cannot take a decision one way or other, it is a device for quick exit from the case!

Limitation for an application by auction purchaser for delivery of possession of property starts from the date of sale becoming absolute rather than the date of issuance of sale certificate. On the failure to avail such quick remedy the law relegates to the remedy of regular suit for possession based on title, subject again to limitation This judgment of the Supreme Court in (2006) 2 MLJ 290 (SC) settles the doubt that a remedy by way of suit will not be lost by failure to take action for execution within the stipulated period of one year after sale under Art 134 of the Limitation Act.


Companies Act

Section 48 of the Transfer of Property Act contains provisions regarding priority of charges. The claim of the first charge holder is to prevail over the claim of the second charge holder and the first charge holder is to be re-paid first. Sections 529 and 529 A of the Companies Act which deal with rights of secured creditors etc in winding up of insolvent companies do not deal with the issue of priority of claims amongst secured creditors. In the absence of a provision in the special law, namely Companies Act dealing with the issue, the rule laid down in the general law will prevail, the Supreme Court held in ICICI Bank Ltd vs SIDCO Leathers and others (2006) 3 MLJ 276 (SC). Parliament could not have intended to deprive a person’s valuable right to recover money by enforcing a mortgage by insertion of non obstinate clause, in Section 529A. The court held that the inter se priority among secured creditors will b e governed by the provisions in Section 48 of the Transfer of Property Act.

A suit filed by a bank against the principal debtor, a company and the guarantors was stayed by the trial court on the ground that the company had been ordered to be wound up. The application filed by the bank under Section 446(1) of the Companies Act seeking leave to proceed with the suit was resisted on the ground that such an application had become time barred as it was governed by Article 137 of the Limitation Act which provided a period of limitation of 3 years from the time the right to apply accrues in respect of application for which no period of limitation is provided in that part. The Supreme Court in Harihar Nath vs State Bank of India held that neither the Companies Act nor Rules prescribed a period of limitation. Article 137 of the Limitation Act was intended to apply to applications for enforcement of a claim or adjudication of a right or liability in a court. An application for leave to proceed with a pending suit or proceeding, not being such an application will not be governed by Article 137. It was also observed that the application seeking leave was only interlocutory in nature and interlocutory application are not subject to any period of limitation unless specifically provided by law.


Constitution of India

Power of Judicial Review:

Emphasizing that the court was the sentinel on the qui vive and cannot remain a silent spectator to the subversion of the Constitution a Constitution Bench of the Supreme Court in a 3:2 verdict in the case of Rameshwar Prasad and others v Union of India and another (2006) 2 MLJ 67 (SC). While examining the constitutional validity of the notification ordering dissolution of the Legislative Assembly of the State of Bihar held that under no circumstances can the action of a Governor be stated to be bona fide.

When it is intended to prevent a political party to stake claim for the formation of government, while holding that the personal immunity enjoyed by the President and Governor are complete and they cannot be made answerable to court even in respect of charges of mala fides, the court however ruled that the power of the court to examine the validity of the action including on the ground of mala fides was not taken away. When such a challenge arises, it will have to be defended by the Union of India or the State and it would not be open to them to plead the grant of immunity as a ground for not answering the contentions raised. Observing that apart from the ipse dixit of the Governor, there was no cogent material upon which the satisfaction of the Governor was based the court held that the Governor cannot refuse formation of Government and override the majority claim on his subjective assessment that the majority was cobbled by illegal and unethical means. The Governor was not an autocratic political ombudsman who could not against democratic principles of majority rule. Despite holding that the proclamation was unconstitutional, the court did not direct status quo ante. In view of the fact that fresh elections had been ordered and the process was under way.

State Election Commissioner- Term of Office

The Constitutional validity of the Tamil Nadu Panchayats (second Amendment) Act, 2005 in terms of which the State Election Commissioner was eligible for reappointment without any limit of terms and without any age limit was considered by the High Court in S.R. Balasubramaniyan v State of Tamil Nadu (2006) 2 MLJ 244 striking down the said provisions, the court ruled that public interest demanded that age of retirement be prescribed for public services. The conferment of power on the Government to appoint a retired civil servant of any age for any number of terms was neither reasonable nor rational and was thus violative of the scheme and policy of the Constitution.

Public Services

A Constitution Bench of the Supreme Court in Secretary, State of Karnataka and others v Umadevi and others (2006) 2 MLJ 326 (SC) has considered the power of the High Court to issue orders for absorption, regularization etc of persons in public employment. Holding that the constitutional scheme of public employment, envisaged equality of opportunity, the court ruled that recruitment to any service in the State of Union was governed by the Acts, Rules and Regulations framed to implement the constitutional guarantees. The executive or the court would have only the right to regularize such appointments that are made after following the due procedure and the right would not extend to directing permanency or absorption in respect of an appointment made in violation of the rules and the constitutional scheme. Unless the appointment was in terms of the relevant rules and after a proper competition among qualified persons, no right will be conferred on the appointee. Persons appointed on daily wages or casual or contract basis cannot claim absorption or permanency unless the original appointment was made in accordance with rules and after due process of selection. Cautioning that any directions to regularize such irregular or illegal appointments would be negation of the principle of equality of opportunity and would amount to perpetuating an illegality, the court held that it would not be just or proper to pass an order in exercise of jurisdiction under Article 226 or 32 of the Constitution or in exercise of power under Article 142 permitting such persons engaged to be absolved or made permanent. The court however clarified that the Government or their instrumentalities may as a one time measure take steps to regularize the services of irregularly appointed persons and not illegally appointed persons if they have worked for ten years or more in duly sanctioned ports but not under cover of orders of courts or tribunals

Candidates submitting applications for appointment to public services pursuant to notification by the Public Service Commission of the State are supposed to go through the notification, instructions to the candidates, information brochures and the application form carefully to ensure that the particulars and information required to be furnished are duly furnished and to see that the documents are enclosed along with the application form as per the requirements. These have the force of law and have to be strictly complied with and the terms and conditions cannot be relaxed unless such power is specifically provided to any authority. The court in exercise of the powers under Article 226 will not make any modification/relaxation to the said terms and conditions. Holding thus, the High court in Dr. M. Vennilla v Tamil Nadu Public Service Commission represented by Deputy Secretary, Chennai & others in (2006) 3 MLJ 376 refused to interfere with the decision of the commission in rejecting applications that had not been authenticated by candidates by affixing of signatures.

Adverting to the scheme of reservation in the Constitution, the Supreme Court said in Anjan Kumar v Union of Indian and others (2006) 2 MLJ 1 (SC) that the off shoots of the wedlock of a tribal woman married to a non-tribal husband of forward class (Kayastha in the present case) cannot claim scheduled tribe status. The impact of obtaining a false certificate and obtaining appointments from the reserved quota, the Supreme Court said, would have far-reaching grave consequences.

Education

The High Court in Minor Nishanth Ramesh vs State of Tamil Nadu (2006) 2 MLJ 382 struck down the Tamil Nadu Regulation of Admission in Professional Courses Act, 2006. The Act which dispensed with common entrance test for State Board students bit introduced common entrance test for students of other Boards as eligibility test for admission to professional colleges in State of Tamil Nadu was held to make an invidious discrimination between State Board students and students of other boards. It was not permissible to determine the interse merit on the basis of two separate examinations – one the qualifying exam for State Board students and the other, the Common Entrance Test for non State Board students. The Act was thus violative of the principle of equality guaranteed by Article 14 of the Constitution. The Act was also held to be impinging upon the field occupied by the Central law, i.e. MCI Regulation and AICTE Regulations, which mandated an entrance exam in any State having more than one Board/University. The State, it was held had no legal competence to enact the law and it was also not saved by Article 15(5) of the Constitution.

Government’s preference under Rule 16 of Tamil Nadu Medical Subordinate Service Rules to Government Nursing School students for appointment in Government service, excluding students or private Nursing schools was held in (2006)2 MLJ 787 arbitrary, illegal and violative of Art. 14 and 16 of Constitution of India.

Minority Status

The primacy of the function to notify minority status to a community shall lie with the government and not with courts. Consequently, a writ petition seeking a direction from Court to the Central Government to notify ‘Jains’ as a ‘minority’ community was held to be not maintainable. The Supreme Court said in (2006) 2 MLJ 186 (SC). It said that in view of verdict in 2002 (8) SCC 481, unit for determining status of both linguistic and religious minorities would be the ‘State’; Statistical data cannot be the sole criterion to show that a community is in a minority. However, it is for the Central Government alone, on its assessment to accept or reject the claim. The Court cannot issue a mandate or direction in this regard.

Freedom of Press and pre-publication restraint

Freedom of speech is perhaps the most cherished of the fundamental rights in the progress of humankind. Precious lives have been sacrificed in defending this right. Press as a strong pillar of the fourth estate epitomizes the need for free expression for articulating and shaping public opinion. A Chief Minister of a State and her friend filed a suit against the Editor, Printer and Publisher of a Journal seeking an injunction and damages for publishing defamatory articles and further restraining them from publishing in future matters of a defamatory nature without prior permission of the plaintiffs. The trial court granted a limited interim injunction against publication of private life without prior verification. On appeal by the Editor, the Bench held in R.Rajagopal v J.Jayalalitha (2006) 2 MLJ 689, quoting American precedents that ‘Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press…We create a grave risk of serious impairment of the indispensable service of a free press if we saddle the press with the impossible burden of verifying to a certainty of facts associated in new articles with a person’s name, picture or portrait, particularly as related to non-defamatory matter.’ The case was heard in depth, as the court said that the ‘case would have direct bearing on the claims of right of privacy by public figures as against the right of the press to publish and write about such public figures.’ The Court further said that the interim order granted by the Trial judge is a blanket injunction virtually amounting to a gag order or censorship of the press. Such censorship cannot be countenanced in the Scheme of the Constitutional framework. Even assuming that the article published by the press in question amounted to a character assassination of the respondents, there is no justification for granting a blanket injunction. ‘In a free democratic society those who hold office in Government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind.’ A word of advice from the Bench was that persons holding public offices must not be thin-skinned and ‘ignore vulgar criticism and abuses hurled against them and they must restrain themselves from giving importance to the same by prosecuting the person responsible for the same’. Rejecting the plea of prior verification before publication in all matters, it restricted its use against the press to matters ‘purely concerning the personal life of a person’, but it cannot be compelled to publish alongside the version of the official about whom the article is written.

Writ jurisdiction and Co-operative Society

The law is not so much carved in stone as it is written in water, flowing in and out with the tide’, said Jeff Melvoin. Even the strength of judicial opinion expressed by a 5 member bench in M.Thankkachalam v Madhuranthagam Agricultural Co-operative Society (2001) 1 LLJ 285 about the non-maintainability of writ was not to be left alone to hold the field without doubt and a Bench of co-equal strength in K.Marappan v Deputy Registrar of Co-operative Societies (2006) 4 SCC 641 did exactly that for good reasons! It said that bye-laws made by a Co-operative Society under the Tamil Nadu Co-operative Societies Act, 1983 do not have the force of law. Hence, it said, where a Society cannot be characterized as a State (refer: Ajay Hasia v Khalid Mujib Sehrewardi 1981 (1) LLJ 103 (SC)), the service conditions of its employees governed by its bye-laws cannot be enforced through a writ petition. It said the previous 5 member bench decision is no longer good law in view of the decision of the seven Judge Bench of the Supreme Court in Pradeep Kumar Biswas v Indian Institute of Chemical Technology 2002 (5) SCC 111. However, it still carved scope for judicial intervention in a case to enforce a statutory public duty cast upon the Society. In such a case, it said, ‘it is unnecessary to go into the question whether the Society is being treated as a ‘person’ or an ‘authority’ within the meaning of Article 226 of the Constitution and what is material is the nature of the statutory duty placed upon it and the Court will enforce such statutory public duty. Although it is not easy to define what a public function or public duty is, it can reasonably be said that such functions are similar to or closely related to those performable by the State in its sovereign capacity’.


Consumer Law


It is a fastidious consumer world, and why not, when the money paid for the product is huge? The owner of a ‘Maruti’ car that had a defective clutch system claimed a direction for taking back the car and for repayment of whole cost of the car supplied to him with interest. The State Commission and the High Court granted the reliefs but the Supreme Court in the appeal filed by the car manufacturer in Maruti Udyog Ltd v Slusheel Kumar Gabgotra and another (2006) 2 MLJ 437 (SC) set aside the orders and reading the warranty conditions in contract of sale, found that it did not provide for replacing the car or refunding the car price for manufacturing defects. In effect, it gave primacy to contract conditions and ordered the replacement of defective clutch assembly and payment of costs.


Education


The vires of the policy of the Government in vogue for over two decades in taking into account the marks obtained in certain subjects in the Plus Two examination along with the qualifying marks in the common entrance exam for admission to MBBS/BDS courses was challenged in Minor S.Janani vs State of Tamil Nadu (2006) 3 MLJ 936. Holding that the policy did not go against the MCI Regulations, the High court observed that the policy had not been demonstrated to have affected the student community. The policy was within the competence of the State Government as it had the power to make rules for admission which were not inconsistent with the standards prescribed by the Union Government in exercise of its powers under Entry 66 of List I.


Insurance:


Section 146 of the Motor Vehicles Act mandates that no motor vehicle can be used in a public place without a policy of insurance complying with the requirements of chapter 11. Section 149 casts a duty on the insurer to satisfy the judgment and award against persons insured in respect of third party risks. The statutory liability under the Workmen’s Compensation Act is on the employer and not on the insurance company. There is no right conferred on the claimant to claim the payment of compensation from the insurer. Section 17 of the Act nullifies contracting out. The Section only prohibits a contract whereby a workman relinquishes any right of compensation for personal injury arising out of or in the course of employment. It does not prohibit the employer and the insurance company from entering into a contract whereby the obligation of the insurance company stands limited. Taking this view, the Supreme Court in New India Assurance Co Ltd v Harshadbhai Amruthbai Modhiya and another (2006) 4 MLJ 156 (SC) upheld the contract between the insurance company and the employer whereby the insurance company was specifically excluded from meeting the liability towards interest or penalty.


Labour & Service


The liability of the employer to compensate the workman for personal injury is restricted to accidents arising out of and in the course of employment of the workman. There has to be a causal connection between the death and the nature of employment. Holding that it is not every death at the work spot that would render the employer liable, the Supreme Court in Jyothi Ademma v Plant Engineer, Nellore and another (2006) 4 MLJ 154 (SC) held that liability can be fixed upon the employer only in cases where the employment is a contributory cause or has accelerated the death or if the death was due not only to the disease but also the disease coupled with the employment. The employer was absolved of liability in that case since the factual finding was that the death of the workman at the work spot due to heart attack had no causal connection with the employment, the nature of the job being such that there was no scope for stress or strain in the duty. The result may seem to flow from a factual finding as to whether heart attack is precipitated by work or not, since the High Court Bench in Management of Pachamalai Estate, Valparai v Smt. Mani (2006) 4 MLJ 1753 refused to interfere with the finding of the Commissioner and the Single judge that the death of a workman due to strenuous nature of work gave room to claim for compensation by his legal representatives.

The Supreme Court in V.Ramana v APSRTC and others (2006) 2 MLJ 162 (SC) would post an extracting standard of probity for persons holding trust, such as when a conductor of bus who does not collect fares or the correct amount is inflicted with the punishment of removal from service would not be subject to judicial review.

The law relating to compassionate appointment is in a way exception to normal rules of appointment relating to public service to relieve the family of its distress from the unexpected loss of its breadwinner. Rigors of entry on the ground of want of educational qualification cannot stand in the way. In the decision reported in (2006) 2 MLJ 200, the petitioner’s father, a helper in Educational Board died and the wife pleaded for employment to her daughter on compassionate ground. The Board rejected her request on the ground that she did not educational qualification. The High Court said that for the post of a sweeper no educational qualification was required and directed appointment. Relaxing the rigors of law in yet another case relating to a claim for refund of medical expenses for treatment in a hospital which was not notified by the employer as an approved hospital, the High Court said (2006) 2 MLJ 747 that the object of the scheme was to give financial support to the deserving persons who contributed towards the scheme and if the medical treatment was true and necessary, reimbursement of medical expenses ought to be given.

There is good news for employees of minor (?) deviant conduct for, it has been held in Manager, Public and Industrial Relations, Nuclear Power Corporation, Madras Atomic Power Station, Kalpakkam v P.Chinnaswamy (2006) 2 MLJ 188 that an employee who weds bigamously shall not face disciplinary action by removal from service, if bigamy is not an enumerated misconduct in the Standing Orders and a workman that is terminated would be entitled to reinstatement,. Another judge has said, dealing with matrimonial wrong of a husband seeking for divorce against the wife complaining of adultery, that acts adultery must be subsequent to marriage and acts prior to marriage are of no avail, vide Arokia Raj Morais v Mrs. Mabia Bibia Rani Morais and others (2006) 2 MLJ 537.


Landlord and Tenant

Rent Control Law

The constitutionality of Section 4 of the Tamil Nadu Buildings (Lease and Rent Control Act) prescribing the methodology of fixation of fair rent and Section 5 that prohibits further increase of the fair rent fixed except under certain circumstances was challenged in a bath of writ petitions. Repelling the challenge, the High Court in T.V. Angappan and another v State of Tamil Nadu and others (2006) 3 MLJ 1073, held that Article 14 does not authorize striking down of a law of one State on the basis of a comparative study of the provisions of enactments in different States. The scheme of Sections 4, 5 and 6 is such that a balance is maintained and fixation of fair rent is thus a fair return on a percentage of the total cost of the building. It is not solely dependent on the market value of the site and various relevant factors that are taken into account under the Section immune from the vice of arbitrariness. Likewise Section 5 is not arbitrary as it provides for refixation of fair rent depending on the improvement, addition or alteration made to the building.

Tenants who have but acquired the proprietary rights in the demised property only of some co-owners do not cease to be tenants and there could be no extinguishment of lease upon such acquisition of interest, as laid down by a three member Bench of the Supreme Court in Pramod Kumar Jaiswal and others v Bibi Husn Bano and others (2006) 2 MLJ 372 (SC).. There would be no termination of jural relationship of tenancy, unless the interest of lessor in whole of property becomes vested in the lessee.

Should the Rent Controller, while determining market value of the land for fixing fair rent of a premises use as basis the guideline value as contained in the revenue records or the market value as per the sale deeds executed at the relevant point of time. Holding that the guideline value contained in the Basic Valuation Register maintained by the Revenue Department or municipality was for the purpose of collecting stamp duty and had no statutory force, the Full Bench in Sakthi and Company v Shree Desigachary (2006) 2MLJ 295(FB) held that evidence of bonafide sales between willing prudent vendor and prudent vendee of lands nearly that possess same or similar advantages would furnish the basis to determine market value of the land.

A lease by a second wife, who has no legal status as a legitimate wife, will not enable her tenant to deny the maintainability of eviction petition, especially when the first wife had also died, if the tenant had been inducted in possession by the second wife, on the principle of estoppel, said the Supreme Court in Bhogadi Kannababu and others v Vuggina Pydamma and others (2006) 3 MLJ 105(SC)

Tamil Nadu City Tenants Protection Act

Will the vested rights of a tenant upon obtaining an order in an application under Section 9 of the Tamil Nadu City Tenants Protection Act, 1921 against the landlord religious institution be taken away by Section 3 of the Amendment Act of 1996 granting exemption to religious institutions from the purview of the Act was the subject matter of reference to the Full Bench in Arulmigu Kasi Viswanathaswamy Devasthanam by Fit Person v M.Kasthuriammal (2006) 2 MLJ 281 (FB). The trial court had directed the religious institution to execute the sale deed in favour of the tenant on 9.1.1996. The Amendment Act which was notified on 11.1.1996, was applicable only to proceedings that were pending before any court on the date of publication of the Act and where decree or order had not been executed or not satisfied in full. The High Court ruled that the scheme of the Act was that the court would first determine the minimum extent of land required, followed by fixing of the price and direction to tenant to deposit the same into court. The last step was the order directing conveyance by the landlord whereupon the suit or proceedings would stand automatically dismissed. As this had been done before the Amendment Act was notified, the order dated 9.1.1996 was not affected by the Amendment Act. The court also observed that upon deposit by the tenant of the price determined by the court, the order was satisfied in full. The court held that both the conditions stated supra for the applicability of Amendment Act were not satisfied and hence the vested right of the tenant to obtain the sale deed was not taken away by the Amendment Act


Matrimonial jurisdiction:


Indian law of Divorce is still based on theory of fault, except in cases of consensual dissolution cases by joint application of spouses. Even when the petition had not been filed for divorce by mutual consent, the Supreme Court, while dealing with a transfer petition from the Family Court directed a petition before the Family Court could be treated as a joint petition for divorce by mutual consent, in Manjula v K.R.Mahesh (2006) 3 MLJ 296 (SC). Pointing out to the highest evidentiary value of registration of marriages, the Supreme Court noted in Smt. Seema v Ashwani Kumar (2006) 2 MLJ 15 (SC) that except in four statutes applicable to States of Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh, registration of marriages was not compulsory in any of the other States and hence directed the States and Central Government to notify compulsory registration of marriages within 3 months. It hoped that compulsory registration of marriages would be a step in the right direction for the prevention of child marriages still prevalent in many parts of the country.

In our considered opinion”, the Supreme Court observed in Naveen Kohli v Neelu Kohli (2006) 2MLJ 241(SC), “the Legislature must consider irretrievable breakdown of marriage as a ground for grant of divorce under the Hindu Marriage Act.” Though it is the obligation of the court and all concerned to preserve a marriage, it would be unrealistic, when the marriage has broken down beyond repair, to not take notice of the fact. By refusing to sever that tie, the law does not serve the sanctity of marriage and only shows scant regard for the feelings and emotions of the parties. Such a course is prejudicial to public interest and morals. In the same decision, the court also explained the concept of cruelty in matrimonial law. While court will have no problem in determining physical cruelty, in cases of mental cruelty, the court will have to take into account the nature of the conduct and its effect on the affected spouse. Where the conduct complained of is per se unlawful, its impact on the spouse need not be enquired into. The conduct must be more serious than ‘ordinary wear and tear of married life’ and the court should be satisfied that it would not be possible for the spouses to live together without mental agony, torture or distress. Cruelty in matrimonial life, the court ruled may be physical or mental, subtle or brutal. It may lie words, gestures or by mere silence, violent or non violent.

Interim maintenance is just not interim, said a judge in M.Kanakaraj v Jeeva and another (2006) 4 MLJ 569; it could stand even if main petition is dismissed or disposed of.

Motor Vehicles Act:


Can compensation be awarded by the Motor Accident Claims Tribunal separately under the heads of permanent disability and loss of earning capacity was the issue referred to the Full Bench in Cholan Roadways Corporation Limited v Ahmed Thambi & 6 others (2006) 4 MLJ 362? .Holding that the courts and tribunals have to approach the issue of awarding compensation from the larger perspective of justice, equity and good conscience, the court held that a victim must be awarded just compensation. While awarding damages, the tribunal should itemize the award under the heads pecuniary losses and non-pecuniary losses. (a) Pain and suffering, (b) loss of amenity (c) loss of expectation of life, hardship, mental stress etc., (d) loss of prospect of marriage will have to be considered under the head non pecuniary losses. Loss of earning capacity and loss of future earnings will have to be considered as one component apart from medical and other expenses under the head pecuniary losses. The loss of earning capacity and the non-pecuniary losses under (a) to (d) above would if compensated take within its fold compensation for permanent disability and hence here was no need to separately provide for compensation under the head permanent disability. The Full Bench observed that permanent disability has several consequences and when each of these like loss of earning, pain and suffering are duly compensated, there was no necessity to award compensation separately on account of permanent disability.

The Amendment Act 54 of 1994 wit effect from 14.11.1994deleted section 166(3) that originally set a time limit for filing a claim petition for compensation. Noticing that several courts have taken a consistent view that there was no period of limitation at all, the Bench said in United India Insurance Co Ltd, represented by its Manager, Madurai v Vijaya (2006) 1 MLJ 688, the failure to implead the legal representatives of the owner should not be allowed defeat the claim for compensation. It said that the abatement of the claim shall be set aside and the claimants would be permitted to implead the legal representatives even after a long lapse of time.

After an unambiguous statement of law by the Supreme Court in National Insurance Company Limited v Baljit Kaur and others (2004) 2 SCC 1 following New India Insurance Company Limited v Asha Rani 2003 ACJ 1, there was no scope for a claim on behalf of gratuitous passenger traveling in a goods vehicle against the Insurer. There is no legal requirement for compulsory insurance for a passenger in a goods vehicle and hence there was no question of making the insurance company and giving it a liberty of recovery from the owner of the vehicle. The Division Bench found a novel way of relieving the rigor of law, when it said in M/s United India Insurance Company Limited, Tiruvannamalai and another v Selvam and others (2006) 1 MLJ 154 that since the law became clear only from the date of judgment of the Supreme Court on 6.1.2004, ‘pay and recover’ principle against the insurer would be available for claims resulting from accidents that happened before 6.1.2004.


Tax Laws :


The issue referred to the Full Bench in State of Tamil Nadu v Tvl. Nu-Tread Tyres and another (2006) 4 MLJ 327 was whether mens rea was an essential ingredient for the levy of penalty under Section 10 (b) of the Central Sales Tax Act 1956. Answering the reference in the affirmative, it was held that false representation by the assessee was a necessary ingredient for invocation of the power to prosecute or in the alternative to initiate action leading to imposition of penalty. The court held that the expression “falsely represents” clearly shows that mens rea was a necessary component of the offence and in the absence of mens rea, no penalty can be imposed.

While computing the total income of the assessee under Section 64(1) (iii) of the Income Tax Act, is it lawful to club the share of the income of the minor children who cannot lay their hands on the same until attaining majority was the issue determined by the Full Bench in the case of Commissioner of Income Tax, Tamil Nadu II, Madras and another v K.J.Ramaswamy, Madras and another (2006) 4 MLJ 762. In terms of Explanation 2A to Section 64, the income arising for the benefit of the minor child, where the minor child of an individual is a beneficiary under a trust is deemed to be an income arising indirectly to the minor child from the admission of the minor to the benefits of the partnership in a firm. Holding that the phrase “for the benefit of the minor child” would mean that the income must be readily available for the use of the minor, the Full Bench held that the clubbing of the income of the minor child in the hands of the assessee cannot be done when it is shown that the minor, for whose benefit the income is available has no right to use the same until attaining majority.

The exemption granted to companies from the levy of Wealth Tax was partially withdrawn by the Finance Act 1983 in respect of certain categories of companies and certain categories of assets. Wealth Tax was chargeable on the assets of the closely held companies at the rate of 2% of such net wealth. The assets used by the assessee as factory, godown, wearhouse, hotel or office were excluded from taxation. The question whether the portion of the building let out by the assessee to various tenants would come within the purview of the exclusionary clause was the subject matter of reference to a Full Bench in the case of Commissioner of Wealth Tax, Tamil Nadu I, Madras v Fagun Co Pvt Ltd (2006) 4 MLJ 836. The Full Bench held that the section was clear and unambiguous and that the yardstick of the Income Tax Act cannot be applied to the exemption under the Wealth Tax Act. The court decided that the assessee was liable to be taxed on the value of the tenanted portion of the building since the let out portion did not come within the purview of the assets that formed the subject matter of the exclusionary clause.

What is the extent a bonafide purchaser for value is bound by the charge for payment of arrears of sales tax created under Section 24 of the Tamil Nadu General Sales Tax Act, 1959 was the question referred to the Full Bench in B.Suresh Chand Vs. State of Tamil Nadu represented by the Secretary, Revenue Department, Madras & another (2006) 4 MLJ 850. The court decided that a bonafide purchaser without notice of the charge under Section 24(1) cannot be proceeded against for the recovery of Sales Tax arrears. To decide whether a transaction was bonafide or not, all the facts relating to the conduct of the parties to the transaction will have to be weighed as a whole. The necessity of the purchase, the intention of the transfer, the relationship between the parties are vital factors to be considered. A purchaser cannot claim that he had no notice of the arrears if he had willfully abstained from an enquiry that he ought to have made or he was grossly negligent in failing to make an enquiry that any prudent person would make. The court found that the transfer in question was fraudulent and the purchaser was indeed aware of the sales tax arrears and hence was not a bonafide purchaser.


Transfer of Property Act


Article 61(a) of the Limitation Act provides that the period of limitation for a suit by a mortgagor to redeem or recover possession of the immovable property mortgaged is 30 years and the period begins to run when the right to redeem or recover possession accrues. In a usufructuary mortgage which does not fix any date for repayment, the right to redeem accrues immediately. The Supreme court in Prabhakaran and others v M. Azhagiri Pillai (Dead) by LRs and others (2006) 2MLJ 272(SC) spelt out the circumstances in which an acknowledgment by the mortgagee would extend the limitation. Observing that acknowledgment as per Section 18 of Limitation Act need not be only by debtors, the court held that Transfer of Property Act has created and recognized rights as well as obligations both in the mortgagor and mortgagee. An acknowledgment under Section 18 can be by a mortgagee also and such an acknowledgment will extend the limitation for a suit against the mortgagee. But to constitute such an acknowledgment the statement in writing signed by the mortgagee should relate to a subsisting mortgage and although it need not be in a document addressed to the mortgagor, the words used should indicate expressly or the implied existence of a jural relationship between the parties and it should appear that the statement was made by the mortgagee with the intention of admitting such jural relationship. But a statement by the mortgagee that merely refers to the mortgage without admitting the jural relationship will not be considered to be an acknowledgment under Section 18.


Tamil Nadu Town and Country Planning Act:


Observing that the Rule of Law will collapse if building rules and bye laws are not strictly enforced, the court in Salahudeen Babu Vs. P.T. Prabhakar (2006) 4 MLJ 22 held that only deviations made before the commencement of Amendment Act of 1998 can be regularized by the government on an application. From there began the hurtling down of multi-storeyed buildings erected with impunity in violation of building regulations.


Concluding remarks


Justice is”, as Whittier wrote in his Mantle of St. John, "the hope of all who suffer, the dread of all who wrong." Law books and journals have grown in size. You cannot any longer seize the law by the scruff, as it were, as easily as you could do, when judgments were written to a few pages in pithy style. Precedents are still inevitable tools to understanding law in all its facets and as it is some times stated, stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. The last word on law may not have been written but the guiding principle shall never be lost. It is in one word – as we began, also the last word, Justice.