New Delhi, June 13, 2011
From Wednesday, lawyers will be able to practise in courts across the country irrespective of their enrolment in any bar council without transferring licence to their desired States.
According to a Law Ministry notification, Section 30 of the Advocates Act will come into force on June 15.
Section 30 says: “Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends — in all courts including the Supreme Court.”
Thursday, July 28, 2011
Adoption by foreigners: court wants more norms followed
MADURAI, June 19, 2011
HC (Madras) Says it is not safe to rely entirely on biological parents' wisdom
“Children are not properties of their parents so as to entitle the latter to have an absolute dominance over the former. In a country where abject poverty drives a few families to sell their children for beggary, forced labour or prostitution, it is not safe to rely entirely upon the wisdom of the biological parents to give their children in adoption or foster care to foreigners,” the Madras High Court has said.
Justice V. Ramasubramanian made the observation while passing interim orders on a petition filed by a German couple seeking exemption from procedures required to be followed in cases of inter-country adoption on the ground that the norms need to be followed only while adopting abandoned children and not in cases of adoption with the consent of biological parents.
The petitioners wanted to adopt the fourth girl child of an Indian family at Oothukottai in Tiruvallur district with the consent of the biological parents. However, they neither possessed a Home Study Report (HSR) regarding their economic, social, familial and physical status nor were they sponsored by a recognised adoption agency as required under inter-country adoption laws.
Apex court verdict cited
Stating that they had come in contact with the family during their visit to India, the couple relied upon a Supreme Court judgment in Smt. Anokha Vs. State of Rajasthan (2004) wherein it was held that procedural safeguards need not be stressed in cases of adoption with the consent of the biological parents who would be the best persons to decide whether to give their child in adoption to foreigners or not.
However, not in agreement with the views expressed by the apex court, Mr. Justice Ramasubramanian pointed out that the judgment in the Anokha case was found to be incompatible with the Hague Adoption Convention according to a book titled ‘Every Child Deserves a Loving Family' published by the Central Adoption Resource Authority (CARA) of the Union Ministry of Women and Child Development.
“This (Supreme court judgment) cannot be used as a precedent since the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption, ratified by the Government of India, does not recognise any case of direct adoption and the receiving country will not issue permission under Article 5/17 of the Convention to agree to such kind of adoption without the involvement of recognised agencies and authorities,” the book states.
Social picture
Doling out extensive statistics about millions of street children, child labourers, children forced into commercial sex trade, deaths due to gender discrimination and illiteracy, the judge said: “Even if one does not give undue weight to these statistics, the social picture presented by it cannot be ignored in toto. I think that a blanket exemption of biological parents from the safeguards prescribed in other inter-country adoptions may not be in the interest of children to whom the court owes an obligation as a Court of Wards…
“As a matter of fact, adoption is evolved as a method of providing alternative care for children deprived of a healthy and happy environment. Therefore, it is accepted as a mode of enforcement of the fundamental rights of the child and hence it cannot be looked at as an exercise of the rights of the biological parents over the child.”
Referring to various other international conventions on the issue, the United Nations Guidelines for the Alternative Care of Children adopted by the General Assembly on February 24 as well as the Juvenile Justice (Care and Protection of Children) Act, 2000, the judge said, “The primary responsibility of providing care and protection to children is that of their birth family. Since the child has a fundamental right to be protected against any kind of exploitation, the biological parents cannot be held to have an absolute and unfettered right to give their children in adoption or for foster care to foreign nationals.”
Personal Law of Hindus
Agreeing that the Personal Law of Hindus has always recognised the right of the biological parents to give their child in adoption, the judge said that such recognition was a contrivance to prevent the interruption of succession.
“The origin of this institution amongst the Hindus was attributed to the religious belief or spiritual efficacy of the possession of a son and a belief that by leaving a male issue in this world, they would save themselves from the torments in the next. Consequently there was to some extent an element of protection in the form of succession to property. Therefore, the same cannot, as on date, enable the biological parents to contend that their right to give their children in adoption to foreign nationals is absolute and unfettered.
“Even decisions taken by courts prove, at times, to be wrong. Therefore, the decision taken by the biological parents, however bona fide, need not always be an informed decision or a decision which would stand the test of time.
Hence, the minimum safeguard that could be adopted is to call for a HSR, if not a sponsorship through an agency.” The judge directed CARA to engage the services of a recognised agency in Germany to conduct a HSR in the present case and submit the report before the court within three months.
HC (Madras) Says it is not safe to rely entirely on biological parents' wisdom
“Children are not properties of their parents so as to entitle the latter to have an absolute dominance over the former. In a country where abject poverty drives a few families to sell their children for beggary, forced labour or prostitution, it is not safe to rely entirely upon the wisdom of the biological parents to give their children in adoption or foster care to foreigners,” the Madras High Court has said.
Justice V. Ramasubramanian made the observation while passing interim orders on a petition filed by a German couple seeking exemption from procedures required to be followed in cases of inter-country adoption on the ground that the norms need to be followed only while adopting abandoned children and not in cases of adoption with the consent of biological parents.
The petitioners wanted to adopt the fourth girl child of an Indian family at Oothukottai in Tiruvallur district with the consent of the biological parents. However, they neither possessed a Home Study Report (HSR) regarding their economic, social, familial and physical status nor were they sponsored by a recognised adoption agency as required under inter-country adoption laws.
Apex court verdict cited
Stating that they had come in contact with the family during their visit to India, the couple relied upon a Supreme Court judgment in Smt. Anokha Vs. State of Rajasthan (2004) wherein it was held that procedural safeguards need not be stressed in cases of adoption with the consent of the biological parents who would be the best persons to decide whether to give their child in adoption to foreigners or not.
However, not in agreement with the views expressed by the apex court, Mr. Justice Ramasubramanian pointed out that the judgment in the Anokha case was found to be incompatible with the Hague Adoption Convention according to a book titled ‘Every Child Deserves a Loving Family' published by the Central Adoption Resource Authority (CARA) of the Union Ministry of Women and Child Development.
“This (Supreme court judgment) cannot be used as a precedent since the Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption, ratified by the Government of India, does not recognise any case of direct adoption and the receiving country will not issue permission under Article 5/17 of the Convention to agree to such kind of adoption without the involvement of recognised agencies and authorities,” the book states.
Social picture
Doling out extensive statistics about millions of street children, child labourers, children forced into commercial sex trade, deaths due to gender discrimination and illiteracy, the judge said: “Even if one does not give undue weight to these statistics, the social picture presented by it cannot be ignored in toto. I think that a blanket exemption of biological parents from the safeguards prescribed in other inter-country adoptions may not be in the interest of children to whom the court owes an obligation as a Court of Wards…
“As a matter of fact, adoption is evolved as a method of providing alternative care for children deprived of a healthy and happy environment. Therefore, it is accepted as a mode of enforcement of the fundamental rights of the child and hence it cannot be looked at as an exercise of the rights of the biological parents over the child.”
Referring to various other international conventions on the issue, the United Nations Guidelines for the Alternative Care of Children adopted by the General Assembly on February 24 as well as the Juvenile Justice (Care and Protection of Children) Act, 2000, the judge said, “The primary responsibility of providing care and protection to children is that of their birth family. Since the child has a fundamental right to be protected against any kind of exploitation, the biological parents cannot be held to have an absolute and unfettered right to give their children in adoption or for foster care to foreign nationals.”
Personal Law of Hindus
Agreeing that the Personal Law of Hindus has always recognised the right of the biological parents to give their child in adoption, the judge said that such recognition was a contrivance to prevent the interruption of succession.
“The origin of this institution amongst the Hindus was attributed to the religious belief or spiritual efficacy of the possession of a son and a belief that by leaving a male issue in this world, they would save themselves from the torments in the next. Consequently there was to some extent an element of protection in the form of succession to property. Therefore, the same cannot, as on date, enable the biological parents to contend that their right to give their children in adoption to foreign nationals is absolute and unfettered.
“Even decisions taken by courts prove, at times, to be wrong. Therefore, the decision taken by the biological parents, however bona fide, need not always be an informed decision or a decision which would stand the test of time.
Hence, the minimum safeguard that could be adopted is to call for a HSR, if not a sponsorship through an agency.” The judge directed CARA to engage the services of a recognised agency in Germany to conduct a HSR in the present case and submit the report before the court within three months.
Reforms could see disposal of cases in three years
June 24, 2011
Cabinet gives the nod for ambitious Legal Mission
The Union Cabinet on Thursday approved an ambitious programme that would usher in radical legal reforms aimed at, among other goals, disposal of pending cases in three years, from the current average of 15 years, and establishment of an All India Judicial Service.
Known as the “National Mission for Justice Delivery and Legal Reforms,” it seeks to operationalise a number of plans to ensure expeditious and quality justice. The Centre is committed to spending Rs. 5,510 crore in the next five years for the Mission.
The Mission has been conceived on the basis of a “Vision Document” adopted at the conference of Chief Ministers and Chief Justices in October 2009. The broad areas under it are: policy and legislative changes, re-engineering of procedures, human resource development, leveraging information technology and improvement of physical infrastructure of subordinate courts.
The Mission would comprise an Advisory Council, a Governing Council, a National Mission Leader and a Mission Directorate. The Advisory Council will advise on the goals, objectives and strategies and an action plan. The Governing Council will facilitate implementation, give policy directions and oversee the work of the Mission. The Mission Directorate will monitor the Mission's various initiatives.
A tentative action plan worked out by the Ministry of Law and Justice focuses on initiatives such as an All India Judicial Service, a Litigation Policy, Judicial Impact Assessment, Amendments to the Negotiable Instruments Act and the Arbitration & Conciliation Act and Legal Education Reforms. It seeks re-engineering of the procedures and alternative methods of dispute resolution such as identification of bottlenecks, procedural changes in court processes, statutory changes to reduce and disincentivise delays, fast tracking of procedures, appointment of court managers and Alternative Dispute Resolution.
Cabinet gives the nod for ambitious Legal Mission
The Union Cabinet on Thursday approved an ambitious programme that would usher in radical legal reforms aimed at, among other goals, disposal of pending cases in three years, from the current average of 15 years, and establishment of an All India Judicial Service.
Known as the “National Mission for Justice Delivery and Legal Reforms,” it seeks to operationalise a number of plans to ensure expeditious and quality justice. The Centre is committed to spending Rs. 5,510 crore in the next five years for the Mission.
The Mission has been conceived on the basis of a “Vision Document” adopted at the conference of Chief Ministers and Chief Justices in October 2009. The broad areas under it are: policy and legislative changes, re-engineering of procedures, human resource development, leveraging information technology and improvement of physical infrastructure of subordinate courts.
The Mission would comprise an Advisory Council, a Governing Council, a National Mission Leader and a Mission Directorate. The Advisory Council will advise on the goals, objectives and strategies and an action plan. The Governing Council will facilitate implementation, give policy directions and oversee the work of the Mission. The Mission Directorate will monitor the Mission's various initiatives.
A tentative action plan worked out by the Ministry of Law and Justice focuses on initiatives such as an All India Judicial Service, a Litigation Policy, Judicial Impact Assessment, Amendments to the Negotiable Instruments Act and the Arbitration & Conciliation Act and Legal Education Reforms. It seeks re-engineering of the procedures and alternative methods of dispute resolution such as identification of bottlenecks, procedural changes in court processes, statutory changes to reduce and disincentivise delays, fast tracking of procedures, appointment of court managers and Alternative Dispute Resolution.
A law that thwarts justice- suuccession
June 26, 2011
Section 15 of the Hindu Succession Act that determines the order of succession in the case of a Hindu woman who dies intestate should be amended for, it reflects an entrenched system of subjugation of women.
The family that had sent a young woman back to her parents after her husband's death, surfaced when she died. There was a contest between her mother and the husband's sister's sons for her property. The mother lost all the way up to the Supreme Court, which noted that it was a “hard case.”
“What women can expect from Courts… is a qualified degree of equal treatment,” wrote Professor Wendy Williams in “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women's Rts. L. Rep. 175 (1982), adding that “women's equality as delivered by Courts can only be an integration into a pre-existing, predominantly male world.”
This is so because, though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals. This takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy. And this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments.
The skewed reality in which gender is positioned in the social, political, economic and cultural transactions shows up the fact that law is not gender-based — sometimes it is not even gender-neutral. Gender-neutrality will not be enough if it merely maintains the status quo — which is nothing but the perpetuation of gender discrimination. Women need, and must have, affirmation of their equality.
If enactment of laws was sufficient to protect women, then women in India are on velvet. But reality bites. The law is observed in the breach, or the law is not effectively enforced by the law-enforcement agencies, or judicial redress lies beyond the woman's horizon, or yet, the evil is seen as an accepted practice. Or women get beaten by “hard cases.”
Look at this particular “hard case,” which is reported in (2009)15 SCC Page 66 Omprakash and Others Vs. Radhacharan and Others. In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband's family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.
Section 15(1) says that if a Hindu woman dies without leaving a will, her property will devolve in the following order. The first in the order are her children, children of a predeceased child and her husband. If none of these persons is available, then it will go to the next in line: the heirs of the husband. Standing behind them will be the heirs of the father and the mother. Section 15(2) says that notwithstanding these provisions, if the woman is not survived by a child or the children of a predeceased child, then any property she inherited from her father or mother will go to the father's heirs, and any property she inherited from her husband or father-in-law will go to the husband's heirs.
The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman's self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”
In Narayani Devi's case, the mother's claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.
Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”
A mother shares equally with the children and the widow when a son predeceases her. But when a married daughter dies, the mother ranks after the husband's heirs. This is the law as enacted in 1955-1956. Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.
Ironically, some of the ancient texts have a more pragmatic and equal approach in such cases. Stridhana, according to some texts, is categorised as technical and non-technical. Non-technical stridhana is that property which is acquired by a woman through her skill and mechanical arts (Vasishta). In the case of a woman who has no issues, the heirs to stridhana are her husband, mother, brother or father (Devala). Aprajaayaa haredbhartaa mata bhrata pitaapi va, says Devalasmrti (A.D. 600-900).
In the 21st edition of Principles of Hindu Law (Mulla), it is observed that Section 15(2) “seem to have been made on the ground that they prevent such property passing into the hands of persons to whom justice would require it should not pass and on the ground that the exceptions are in the interest of the intestate herself.” If the intention of this provision is to prevent property from devolving on persons to whom justice “would require it should not pass,” then the family that had refused to take care of Narayani should not have got anything.
In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband's sister's children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents' support. These are the ground realities.
Section 15 should be amended. The order of succession should be altered. In addition to “inheritance,” other modes of acquisition from parents or because of parents could be added.
Justice Bhattacharjee's criticism of Section 15 has been referred to above. Decades after his book was written, the injustice continues. Neither biological nor social differences shall corrupt the ideal of equality or the reality of equality. In this case the law views the man's estate and the woman's estate through different spectacles: her autonomy over her property is less complete than his. How else can one explain the injustice? There are many more such cases. The law should not stand in the way of justice.
Whether the Supreme Court could or should have addressed the gender discrimination, and seen that the apparent “hardness” of the case was only the outer layer of an entrenched system of subjugation of women, and unpeeled the layers, are questions that need not be argued now.
Professor Williams' article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.
(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)
Section 15 of the Hindu Succession Act that determines the order of succession in the case of a Hindu woman who dies intestate should be amended for, it reflects an entrenched system of subjugation of women.
The family that had sent a young woman back to her parents after her husband's death, surfaced when she died. There was a contest between her mother and the husband's sister's sons for her property. The mother lost all the way up to the Supreme Court, which noted that it was a “hard case.”
“What women can expect from Courts… is a qualified degree of equal treatment,” wrote Professor Wendy Williams in “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism,” published in 7 Women's Rts. L. Rep. 175 (1982), adding that “women's equality as delivered by Courts can only be an integration into a pre-existing, predominantly male world.”
This is so because, though the courts may be well meaning and earnestly intend to uphold equal rights for women, they can only reflect the shared life experience of individuals. This takes a largely male hue, not only because the judgment-deliverers are predominantly male, but also because society systemically supports male supremacy. And this systemic slant shades the thought processes that lie behind laws too, and the courts apply the laws in their judgments.
The skewed reality in which gender is positioned in the social, political, economic and cultural transactions shows up the fact that law is not gender-based — sometimes it is not even gender-neutral. Gender-neutrality will not be enough if it merely maintains the status quo — which is nothing but the perpetuation of gender discrimination. Women need, and must have, affirmation of their equality.
If enactment of laws was sufficient to protect women, then women in India are on velvet. But reality bites. The law is observed in the breach, or the law is not effectively enforced by the law-enforcement agencies, or judicial redress lies beyond the woman's horizon, or yet, the evil is seen as an accepted practice. Or women get beaten by “hard cases.”
Look at this particular “hard case,” which is reported in (2009)15 SCC Page 66 Omprakash and Others Vs. Radhacharan and Others. In 1955, Narayani Devi married Deendayal Sharma, who died within three months. Soon she was driven out of her matrimonial home. She lived with her parents, earned a living and died on July 11, 1966. She left behind a substantial estate, but wrote no will. Both her mother and her husband's family claimed a succession certificate. The Supreme Court considered the scope of Section 15 of the Hindu Succession Act and held against the mother.
Section 15(1) says that if a Hindu woman dies without leaving a will, her property will devolve in the following order. The first in the order are her children, children of a predeceased child and her husband. If none of these persons is available, then it will go to the next in line: the heirs of the husband. Standing behind them will be the heirs of the father and the mother. Section 15(2) says that notwithstanding these provisions, if the woman is not survived by a child or the children of a predeceased child, then any property she inherited from her father or mother will go to the father's heirs, and any property she inherited from her husband or father-in-law will go to the husband's heirs.
The Supreme Court held that Section 15(1) lays down the ordinary rule of succession; Section 15(2)(a) only carves out an exception to Section 15(1). It observed that the law is silent on a Hindu woman's self-acquired property, and such property cannot be considered as property inherited from her parents. The court said: “This is a hard case… But then only because a case appears to be hard would not lead us to invoke different interpretation of a statutory provision, which is otherwise impermissible. It is now a well settled principle in law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous.”
In Narayani Devi's case, the mother's claim was not based on sympathy or sentiment, but logic and principles of fairness, equity and justice. The Supreme Court, however, found that the law was a hurdle to her claim.
Justice A.M. Bhattacharjee wrote thus in Modern Hindu Law Under Constitution: “Under the provision of Section 15(1) read with sub-section (2) in the absence of children, the order of succession in the case of a female Hindu would vary according to the source of acquisition of property.” He asked why the source of acquisition should be a determinant in the case of a Hindu woman when it is not so in the case of a Hindu man. “Unless we still want to perpetuate in a somewhat different form the old outmoded view that ownership of property cannot be full but must be somewhat limited.”
A mother shares equally with the children and the widow when a son predeceases her. But when a married daughter dies, the mother ranks after the husband's heirs. This is the law as enacted in 1955-1956. Hindu law as it existed before the Constitution has been the subject of criticism for the glaring inequalities that it perpetuated. But we find lurking inequalities even in subsequent enactments.
Ironically, some of the ancient texts have a more pragmatic and equal approach in such cases. Stridhana, according to some texts, is categorised as technical and non-technical. Non-technical stridhana is that property which is acquired by a woman through her skill and mechanical arts (Vasishta). In the case of a woman who has no issues, the heirs to stridhana are her husband, mother, brother or father (Devala). Aprajaayaa haredbhartaa mata bhrata pitaapi va, says Devalasmrti (A.D. 600-900).
In the 21st edition of Principles of Hindu Law (Mulla), it is observed that Section 15(2) “seem to have been made on the ground that they prevent such property passing into the hands of persons to whom justice would require it should not pass and on the ground that the exceptions are in the interest of the intestate herself.” If the intention of this provision is to prevent property from devolving on persons to whom justice “would require it should not pass,” then the family that had refused to take care of Narayani should not have got anything.
In India those who own property do not always write a will. Narayani did not. She did not know the law of succession. She certainly would not have wanted her husband's sister's children to grab her earnings. If her spirit is floating around, it must be a very unhappy one. In India if a woman loses her husband because of death, desertion or divorce, there is a high probability that she will come to be with her parents. In the present day, many women have self-acquired property that they have earned because of their parents' support. These are the ground realities.
Section 15 should be amended. The order of succession should be altered. In addition to “inheritance,” other modes of acquisition from parents or because of parents could be added.
Justice Bhattacharjee's criticism of Section 15 has been referred to above. Decades after his book was written, the injustice continues. Neither biological nor social differences shall corrupt the ideal of equality or the reality of equality. In this case the law views the man's estate and the woman's estate through different spectacles: her autonomy over her property is less complete than his. How else can one explain the injustice? There are many more such cases. The law should not stand in the way of justice.
Whether the Supreme Court could or should have addressed the gender discrimination, and seen that the apparent “hardness” of the case was only the outer layer of an entrenched system of subjugation of women, and unpeeled the layers, are questions that need not be argued now.
Professor Williams' article says: “But to the extent the law of the public world must be reconstructed to reflect the needs and values of both sexes change must be sought from legislatures rather than courts. And women whose separate experience has not been adequately registered… are the ones who must seek the change.” It is time that this law is made gender-balanced.
(Prabha Sridevan, a former Judge of the Madras High Court, is Chairperson, Intellectual Property Appellate Board.)
Single case enough to detain person under Goondas Act, says court
CHENNAI, June 25, 2011
To detain a person under the Goondas Act, it is not necessary that there should be more than one case which has the propensity of disturbing the maintenance of public order, a Full Bench of the Madras High Court held on Friday.
Of all the cases against the person concerned, even if a single incident has the propensity of affecting the even tempo of life and public tranquillity being prejudicial to the maintenance of public order, that by itself would be sufficient to pass a valid order of detention.
There could not be any straight-jacket formula or universal rule in respect of the number of cases because the necessity for passing a detention order depended on the facts and circumstances of each case.
To brand a person as ‘Goonda,' as defined under section 2 (f) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic offenders, Slum-grabbers and Video-Pirates Act, it is absolutely necessary that there should be more than one case involving offences punishable under the IPC.
The Bench comprising Justices K.N.Basha, T.Sudanthiram and S.Nagamuthu passed the order when it was called upon in a habeas corpus petition (HCP) to declare the law as to whether a solitary instance was sufficient to detain a person who had been branded as a ‘Goonda.'
Originally, a habeas corpus petition was filed by Arumugam before the Madurai Bench seeking to quash the detention order passed by the Madurai Police Commissioner against Madhavan alias Kannan and direct the authorities to produce him before the court and set him at liberty. When the matter was heard by a Division Bench, the main contention made was that the solitary incident of robbery mentioned in the ground case could not attract Goondas Act. The matter was referred to a Full Bench.
The Bench said if was of the considered view that there could not be a straight-jacket formula or universal rule as held by a Division Bench in Rajendran's case to the effect that a single incident giving rise to a single case was not enough to justify the order of detention. But it all depended upon the facts and circumstances of each case where the detaining authority had to consider from the material available and thereafter to conclude that a particular person was a goonda. After branding the person as a goonda, it had to consider further as to whether his act on the basis of the single incident constituting offences or more than one case would amount to act/acts which is/are prejudicial to the maintenance of public order necessitating a detention order.
The Bench overruled the law laid down in Rajendran's case.
It posted the HCP before the Division Bench for final disposal.
To detain a person under the Goondas Act, it is not necessary that there should be more than one case which has the propensity of disturbing the maintenance of public order, a Full Bench of the Madras High Court held on Friday.
Of all the cases against the person concerned, even if a single incident has the propensity of affecting the even tempo of life and public tranquillity being prejudicial to the maintenance of public order, that by itself would be sufficient to pass a valid order of detention.
There could not be any straight-jacket formula or universal rule in respect of the number of cases because the necessity for passing a detention order depended on the facts and circumstances of each case.
To brand a person as ‘Goonda,' as defined under section 2 (f) of the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Forest-offenders, Goondas, Immoral Traffic offenders, Slum-grabbers and Video-Pirates Act, it is absolutely necessary that there should be more than one case involving offences punishable under the IPC.
The Bench comprising Justices K.N.Basha, T.Sudanthiram and S.Nagamuthu passed the order when it was called upon in a habeas corpus petition (HCP) to declare the law as to whether a solitary instance was sufficient to detain a person who had been branded as a ‘Goonda.'
Originally, a habeas corpus petition was filed by Arumugam before the Madurai Bench seeking to quash the detention order passed by the Madurai Police Commissioner against Madhavan alias Kannan and direct the authorities to produce him before the court and set him at liberty. When the matter was heard by a Division Bench, the main contention made was that the solitary incident of robbery mentioned in the ground case could not attract Goondas Act. The matter was referred to a Full Bench.
The Bench said if was of the considered view that there could not be a straight-jacket formula or universal rule as held by a Division Bench in Rajendran's case to the effect that a single incident giving rise to a single case was not enough to justify the order of detention. But it all depended upon the facts and circumstances of each case where the detaining authority had to consider from the material available and thereafter to conclude that a particular person was a goonda. After branding the person as a goonda, it had to consider further as to whether his act on the basis of the single incident constituting offences or more than one case would amount to act/acts which is/are prejudicial to the maintenance of public order necessitating a detention order.
The Bench overruled the law laid down in Rajendran's case.
It posted the HCP before the Division Bench for final disposal.
Ayurveda gets mediclaim cover
Sunday, July 24, 2011
Ayurveda gets mediclaim cover
Health insurance policies used to cover only allopathy treatment while ayurveda, homoeopathy, naturopathy and unani treatments were out of the ambit. Despite having a comprehensive health insurance plan in place, individuals who preferred such systems had to pay out of their own pockets.
These policyholders can now breathe easy as some insurance companies have started including such alternative forms of treatment under their cover, especially ayurveda. “Ayurveda being the most prevalent of the alternate systems, we have designed a product to cover treatments under ayurvedic hospitalization,” says S S Gopalarathnam, MD, Cholamandalam MS General Insurance. While some insurers only offer it under their group policies, others have started offering the facility to individual health insurance seekers.
PSU insurer New India Assurance and standalone health insurance provider Star Health and Allied Insurance are other insurance companies that have started covering ayurvedic treatments under individual policies. ICICI Lombard General Insurance covers it under government scheme and Future Generali Insurance offers it to corporate group insurance buyers. Though the coverage has been expanded, there are curbs on the amount and situations under which it can be claimed. New India Assurance’s extends cover to individuals undergoing treatment with the help of ayurvedic, homeopathic and unani systems of medicine. “Such claims will be covered only to the extent of 25% of sum insured. Also, they need to have availed of the treatment at a government hospital,” informs Segar Sampathkumar, deputy general manager, New India Assurance. Similarly, Star Health also covers non-allopathic treatment, except naturopathy, costs under its Unique Health Insurance Policy, “up to 25% of sum assured or a maximum of Rs 25,000 per occurrence, per year.”
Ayurveda gets mediclaim cover
Health insurance policies used to cover only allopathy treatment while ayurveda, homoeopathy, naturopathy and unani treatments were out of the ambit. Despite having a comprehensive health insurance plan in place, individuals who preferred such systems had to pay out of their own pockets.
These policyholders can now breathe easy as some insurance companies have started including such alternative forms of treatment under their cover, especially ayurveda. “Ayurveda being the most prevalent of the alternate systems, we have designed a product to cover treatments under ayurvedic hospitalization,” says S S Gopalarathnam, MD, Cholamandalam MS General Insurance. While some insurers only offer it under their group policies, others have started offering the facility to individual health insurance seekers.
PSU insurer New India Assurance and standalone health insurance provider Star Health and Allied Insurance are other insurance companies that have started covering ayurvedic treatments under individual policies. ICICI Lombard General Insurance covers it under government scheme and Future Generali Insurance offers it to corporate group insurance buyers. Though the coverage has been expanded, there are curbs on the amount and situations under which it can be claimed. New India Assurance’s extends cover to individuals undergoing treatment with the help of ayurvedic, homeopathic and unani systems of medicine. “Such claims will be covered only to the extent of 25% of sum insured. Also, they need to have availed of the treatment at a government hospital,” informs Segar Sampathkumar, deputy general manager, New India Assurance. Similarly, Star Health also covers non-allopathic treatment, except naturopathy, costs under its Unique Health Insurance Policy, “up to 25% of sum assured or a maximum of Rs 25,000 per occurrence, per year.”
Cabinet approves Lokpal Bill
New Delhi, July 28, 2011
Forty-three years after the first draft was conceived, the Union Cabinet on Thursday approved a Lokpal Bill, keeping outside its purview a serving Prime Minister, the higher judiciary and the conduct of MPs inside Parliament.
The Bill, which includes some provisions of the Jan Lokpal Bill, provides for setting up the institution of Lokpal to probe allegations of corruption against a Union Minister or officials of Group A and above without having to obtain any sanction. It will have its own investigation and prosecution wings but no powers to prosecute. It would recommend prosecution to the Supreme Court.
At the Cabinet meeting, chaired by Prime Minister Manmohan Singh, the United Progressive Alliance government had on board all its alliance partners except the Dravida Munnetra Kazhagam that went unrepresented. The DMK earlier demanded that the Prime Minister be covered under the Bill.
The Bharatiya Janata Party too expressed “disappointment” over the exclusion of the Prime Minister.
Terming the Bill “unacceptable,” social activist Anna Hazare, who had initiated a movement in April demanding the anti-corruption legislation, announced his decision to go on an indefinite fast to press for a revised Bill that would be “strong and effective.”
Briefing journalists on the Cabinet meeting, Information and Broadcasting Minister Ambika Soni said Dr. Singh had insisted that his office be included in the legislation but the Cabinet decided otherwise, considering that such a move might have an adverse effect on the stability of the government.
The Bill provides for inquiry into allegations of corruption against the Prime Minister after he or she demits office.
It provides for a time limitation period of seven years from the date of taking cognisance of an offence. In the case of the Prime Minister, the limitation period will apply after he or she demits office.
The Lokpal will comprise a chairperson and eight members, half of them judicial. A panel headed by the Prime Minister will select the Lokpal.
The Lokpal will have a five-year tenure and would be removed by the President on a reference of the Supreme Court.
Separately, the government will bring in legislation on Judicial Standards and Accountability, protection to whistle-blowers, and on a grievance redress mechanism.
The Bill does not provide for constitution of Lokayuktas in States. It will be introduced in Parliament during the first two days of the session beginning August 1.
Forty-three years after the first draft was conceived, the Union Cabinet on Thursday approved a Lokpal Bill, keeping outside its purview a serving Prime Minister, the higher judiciary and the conduct of MPs inside Parliament.
The Bill, which includes some provisions of the Jan Lokpal Bill, provides for setting up the institution of Lokpal to probe allegations of corruption against a Union Minister or officials of Group A and above without having to obtain any sanction. It will have its own investigation and prosecution wings but no powers to prosecute. It would recommend prosecution to the Supreme Court.
At the Cabinet meeting, chaired by Prime Minister Manmohan Singh, the United Progressive Alliance government had on board all its alliance partners except the Dravida Munnetra Kazhagam that went unrepresented. The DMK earlier demanded that the Prime Minister be covered under the Bill.
The Bharatiya Janata Party too expressed “disappointment” over the exclusion of the Prime Minister.
Terming the Bill “unacceptable,” social activist Anna Hazare, who had initiated a movement in April demanding the anti-corruption legislation, announced his decision to go on an indefinite fast to press for a revised Bill that would be “strong and effective.”
Briefing journalists on the Cabinet meeting, Information and Broadcasting Minister Ambika Soni said Dr. Singh had insisted that his office be included in the legislation but the Cabinet decided otherwise, considering that such a move might have an adverse effect on the stability of the government.
The Bill provides for inquiry into allegations of corruption against the Prime Minister after he or she demits office.
It provides for a time limitation period of seven years from the date of taking cognisance of an offence. In the case of the Prime Minister, the limitation period will apply after he or she demits office.
The Lokpal will comprise a chairperson and eight members, half of them judicial. A panel headed by the Prime Minister will select the Lokpal.
The Lokpal will have a five-year tenure and would be removed by the President on a reference of the Supreme Court.
Separately, the government will bring in legislation on Judicial Standards and Accountability, protection to whistle-blowers, and on a grievance redress mechanism.
The Bill does not provide for constitution of Lokayuktas in States. It will be introduced in Parliament during the first two days of the session beginning August 1.
Bihar emerges first State for video-conferencing under RTI
July 28, 2011
Bihar Information Commission on Thursday introduced for the first time in the country video-conferencing facilities.
Launching the facility, Chief Minister Nitish Kumar said after providing video-conference facilities under the Right to Information for speedy disposal of appeals by applicants at every district headquarter, similar facilities would be extended up to the block-level.
He said as Public Information Officials faced difficulties in providing information for cash shortage “we have now decided to ensure contingency fund for the purpose.”
He said about 93,000 pieces of information had been sought by applicants through ‘Jankari call centres’ in Bihar after implementation of the RTI Act.
“We will be awarding the 1,00,000th applicant,” he said.
“We are going to implement the Right to Service Act in Bihar from August 15, 2011,” he said adding that it had provisions for dismissal from service in the event of public servants violating the law.
Chief Information Commissioner of India, Satyanand Mishra said praised the State government for its efforts for popularising the RTI Act and said the number of applicants was increasing from 20 to 25 per cent every year.
Deputy Chief Minister Sushil Kumar Modi expressed happiness over disposal of around 49,000 applications against 53,000 applications in Bihar by the state Information Commission.
Bihar Information Commission on Thursday introduced for the first time in the country video-conferencing facilities.
Launching the facility, Chief Minister Nitish Kumar said after providing video-conference facilities under the Right to Information for speedy disposal of appeals by applicants at every district headquarter, similar facilities would be extended up to the block-level.
He said as Public Information Officials faced difficulties in providing information for cash shortage “we have now decided to ensure contingency fund for the purpose.”
He said about 93,000 pieces of information had been sought by applicants through ‘Jankari call centres’ in Bihar after implementation of the RTI Act.
“We will be awarding the 1,00,000th applicant,” he said.
“We are going to implement the Right to Service Act in Bihar from August 15, 2011,” he said adding that it had provisions for dismissal from service in the event of public servants violating the law.
Chief Information Commissioner of India, Satyanand Mishra said praised the State government for its efforts for popularising the RTI Act and said the number of applicants was increasing from 20 to 25 per cent every year.
Deputy Chief Minister Sushil Kumar Modi expressed happiness over disposal of around 49,000 applications against 53,000 applications in Bihar by the state Information Commission.
Supreme Court extends deadline for Samacheer text books distribution
July 28, 2011
The Supreme Court on Thursday extended the deadline for distribution of text books to students under the Uniform System of School Education (Amendment) Act, 2011 till August 5.
A three-Judge Bench of Justices J.M. Panchal, Deepak Verma and B.S. Chauhan passed the direction while dealing with Tamil Nadu government’s decision to scrap the curriculum approved by the previous DMK regime under the impugned Act.
During the day-long arguments, senior counsel T.R. Andhiarujina appearing for some of the associations which are in favour of curriculum, told the bench that the AIADMK government acted in undue haste due to political reasons.
“The amended Act was passed with undue haste on a single day and the Governor’s assent was obtained on the same day and it was clear that everything was done with lightning speed,” he said.
The arguments would resume on Tuesday.
The Jayalalithaa government had moved the court challenging the Madras High Court’s order which had struck down an amendment to the Tamil Nadu Uniform System of School Education (Amendment) Act, 2011.
The State had challenged the High Court’s order on the ground that it was “illegal and erroneous.”
Tamil Nadu has over 1.2 crore students in four streams of school education — 45,000 State Board schools, 11,000 matriculation schools, 25 oriental schools and 50 Anglo-Indian schools, all with separate syllabus, textbooks and schemes of examinations.
The Supreme Court on Thursday extended the deadline for distribution of text books to students under the Uniform System of School Education (Amendment) Act, 2011 till August 5.
A three-Judge Bench of Justices J.M. Panchal, Deepak Verma and B.S. Chauhan passed the direction while dealing with Tamil Nadu government’s decision to scrap the curriculum approved by the previous DMK regime under the impugned Act.
During the day-long arguments, senior counsel T.R. Andhiarujina appearing for some of the associations which are in favour of curriculum, told the bench that the AIADMK government acted in undue haste due to political reasons.
“The amended Act was passed with undue haste on a single day and the Governor’s assent was obtained on the same day and it was clear that everything was done with lightning speed,” he said.
The arguments would resume on Tuesday.
The Jayalalithaa government had moved the court challenging the Madras High Court’s order which had struck down an amendment to the Tamil Nadu Uniform System of School Education (Amendment) Act, 2011.
The State had challenged the High Court’s order on the ground that it was “illegal and erroneous.”
Tamil Nadu has over 1.2 crore students in four streams of school education — 45,000 State Board schools, 11,000 matriculation schools, 25 oriental schools and 50 Anglo-Indian schools, all with separate syllabus, textbooks and schemes of examinations.
RAM KANYA BAI & ANR. v. JAGDISH & ORS. [2011] INSC 559 (4 July 2011)
Wednesday, July 27, 2011
RAM KANYA BAI & ANR. v. JAGDISH & ORS. [2011] INSC 559 (4 July 2011)
Judgement Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4922 OF 2011 [Arising out of SLP [C] No.8497 of 2007]
Smt. Ramkanya Bai & Anr. ... Appellants
V/s.
Jagdish & Ors. ... Respondents
R.V.RAVEENDRAN, J.
Leave granted.
2. The appellants claim to be the owners of lands bearing Khasra Nos.29/2/2 and 29/1. The first respondent Jagdish claims to be the owner of Khasra Nos.36/3 and 36/4. The first respondent made an application to the Naib Tahsildar, Tappa Betma, Depalpur, Indore District, under section 131 of the Madhya Pradesh Land Revenue Code, 1959 (`Code' for short) claiming a right of way over Khasra Nos.29/2/2 and 29/1 of the appellants, to reach his lands bearing Khasra Nos.36/3 and 36/4. The Naib Tahsildar made on order dated 25.10.2001, under section 131 of the Code, holding that 2 first respondent, with his agricultural equipments, bullock-cart etc., was entitled to pass through the Government Road, Khasra No.21 (East to West) of the village Salampur and thereafter pass through Khasra Nos. 29/1 and 29/2/2 belonging to the appellants, for reaching his land bearing Khasra Nos.36/3 and 36/4 and the appellants shall not obstruct such passage. The appeal by the appellants filed against the said order under section 44 of the Code was dismissed and the subsequent revision filed by the appellants under section 50 of the Act was also dismissed.
3. Thereafter appellants filed Civil Suit No.66A/2002 on the file of the Civil Judge (Class II), Depalpur, Indore district for the following reliefs : (a) a declaration that the first respondent did not have any right of way over their lands bearing Nos.29/2/2 and 29/1 to reach his lands bearing Khasra Nos.36/3 and 36/4 and that they are entitled to enjoy their lands without any interference from first respondent; (b) for a declaration that the order dated 25.10.2001 passed by the Tahsildar creating a new passage, over khasra Nos.29/1 and 29/2/2, was illegal; and (c) for a consequential injunction restraining first respondent from creating/ constructing any new passage, over their lands. The said suit was dismissed by the trial court, by judgment dated 4.12.2004 on the ground that having regard to section 131 read with section 257 of the Code, the revenue court (Tahsildar) alone had jurisdiction 3 to grant relief on the basis of custom and convenience of parties, and it did not have any jurisdiction. The appeal (Appeal No.3-A/2005) filed by the appellants was dismissed by the first appellate court on 19.4.2005. The subsequent second appeal filed by the appellants was also dismissed by the High Court on 19.1.2007. The said judgment is under challenge in this appeal by special leave.
4. On the contentions urged by the parties, the following questions arise for our consideration: (a) Whether the jurisdiction of the civil court to entertain a suit for declaration or injunction, claiming a customary easement of right of way or right to take water, through the land of a servient owner, is barred by section 257 of the Code, on the ground that it is a matter which the Revenue Officer (Tahsildar) is empowered to decide under section 131 of the Code? (b) Whether the civil court has no jurisdiction to entertain a suit by the owner of a land for a declaration that the defendant does not have an easementary right, customary or otherwise, over his property and the order of Tahsildar under section 131 of the Code recognizing such right, is illegal and erroneous?
5. Section 131 of the Code deals with rights of way and other private easements. It is extracted below :
"131. Rights of way and other private easements.--(1) In the event of a dispute arising as to the route by which a cultivator shall have access to his fields or to the waste or pasture lands of the village, otherwise than by the recognized roads, paths or common land, including those road and paths recorded in the village Wajib-ul-arz prepared under section 242 or as to the source from or course by which he may avail himself of water, a Tahsildar may, after local enquiry, decide the matter with reference to the 4 previous custom in each case and with due regard to the conveniences of all the parties concerned.
(2) No order passed under this section shall debar any person from establishing such rights of easement as he may claim by a civil suit."
Section 257 deals with the exclusive jurisdiction of revenue authorities in regard to revenue matters under the Code, and bar of jurisdiction of civil courts in regard to such matters. The relevant portion thereof is extracted below :
"257. Exclusive jurisdiction of revenue authorities.--Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters-- (a) to (z-2) xxxxx [not extracted as not relevant]"
6. An analysis of section 131 of the Code shows that it provides for the adjudication by the Tahsildar, in respect of disputes raised by a cultivator, relating to any of the following three private easementary rights:- a) the route by which a cultivator shall have access to his fields;
b) the route by which a cultivator shall have access to waste or pasture lands of the village; and c) the route by which a cultivator shall have access to the source from which, or the course by which, he may avail himself of water. 5 Section 131 provides that such disputes shall be decided in each case, by the Tahsildar, after a local enquiry, with reference to the previous custom and with due regard to the convenience of all parties concerned. The disputes relating to recognized roads, paths or common land including those roads and paths recorded in the village Wajib-ul-arz prepared under section 242 of the Code are expressly excluded from the scope of section 131 of the Code. It is thus clear that what could be decided under section 131 of the Code is a dispute relating to a claim for a customary easement over a private land, relating to a right of way or right to take water, which is not recognized and recorded as a customary easement in the village Wajib-ul-arz.
7. The definition of different easements, the manner of imposition and acquisition of easementary rights, the incidents of easements and the remedies in case of interference or disturbance with easements are governed by the provisions of the Indian Easements Act, 1882. Easement Act refers to the different methods by which easements are acquired or imposed, that is, namely easements by grant, easements of necessity, easements by prescription and customary easements. Acquisition of an easementary right, by any of the aforesaid methods, requires fulfillment of the conditions prescribed under the Easements Act. A private easement, including a right of way to a person's land or right to take water from a source to his land, 6 cannot be acquired in a manner not contemplated or prescribed by the Easement Act. Easements by grant require a grant by the owner of the servient heritage. Easements of necessity are based on implied grants or reservations made by the owner of a servient heritage, at the time of disposition such as transfers and partitions. Easements by prescription can be acquired only by peaceable and open enjoyment, without interruption for twenty years. Customary easement can be are acquired by virtue of a local custom.
8. Having regard to section 9 of the Code of Civil Procedure, a civil court can entertain any suit of civil nature except those, cognizance of which is expressly or impliedly barred. In Kamala Mills Ltd. v. State of Bombay [1965] INSC 120; [AIR 1965 SC 1942] this court held :
"The normal rule prescribed by section 9 of the Code of Civil Procedure is that the courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred......... Whenever it is urged before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the civil Courts' jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that 7 all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not."
(emphasis supplied) In Dhulabhai v. State of Madhya Pradesh - [1968] INSC 93; 1968 (3) SCR 662, a Constitution Bench of this Court held that exclusion of the jurisdiction of the civil court is not readily to be inferred with, unless the following, among other conditions apply :
"(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure............ (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."
9. The Code nowhere bars the jurisdiction of civil courts to decide upon easementary rights relating to agricultural or other lands. The Madhya Pradesh Land Revenue Code neither creates nor recognizes any new 8 category of private easementary rights either by way of right of way or right to take water, which is not covered by the provisions of the Easements Act or which is not required to fulfill the requirements prescribed by the Easements Act. An easement cannot be acquired otherwise than in the manner provided in the Easement Act. Section 131 of the Code does not provide for or recognize a new type of easement which is not contemplated or recognized in Easement Act, but merely deals with customary easements covered by section 18 of the Easements Act. Nor can it be said that the elements of an easement required to be fulfilled under the Easement Act are not required in respect of a private easement under section 131 of the Code. Apart from the fact that section 131 of the Code does not deal with acquisition of any special easement by some method which is not referred in the Easements Act, sub-section (2) of section 131 expressly provides that irrespective of any order passed by the Tahsildar under section 131, any person can establish any right relating to an easement by a civil suit. There is nothing in section 131 or any other provision of the Code, which makes the decision of the Tahsildar final and not open to question in a civil court. Therefore, the decision of the Tahsildar will not bar a subsequent civil suit by either party to a proceeding under section 131 of the Code, in respect of the easement claimed in the proceedings under section 131 of the Code.
9
10. When a person (dominant owner) has an easementary right, and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil court for the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over another's land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment.
11. Section 257 relates to the exclusive jurisdiction of the revenue authorities. Any statutory provision ousting the jurisdiction of civil courts should be strictly construed. A suit for enforcement of an easementary right or for a declaration that the defendant does not have any easementary right over plaintiff's property or a suit for injunction to restrain a defendant from interfering with the possession of plaintiff or exercising any easementary right over plaintiff's property, is not barred by the Code. Such suits do not fall under any of the excluded matters enumerated in clauses (a) to (z-2) of section 257 of the Code. Section 257, no doubt, also provides that no civil 10 court shall entertain any suit instituted to obtain a decision or order on any matter which the State Government, the Board or any Revenue Officer is empowered to determine by the provisions of the code. But this is subject to the opening words of the section "except as otherwise provided in this Code or in any other enactment for the time being in force". We have already noticed that sub-section (2) of section 131 of the Code reserves and retains specifically the jurisdiction of the civil court to entertain suits relating to any easements, irrespective of the decision of the Tahsildar on a similar issue. Sub-section (2) of section 131 provides that no order passed under section 131 shall debar any person from establishing such rights of easements as he may claim by a civil suit. Therefore the right to decide upon the nature of easements and enforcement of easements is expressly preserved for decision by a civil court in a civil suit. The two fold object of sub-section (2) of section 131 is to declare that section 131(1) of the Code does not deal with a matter which is in the exclusive province of revenue authorities and also to enable either party to approach the civil court in regard to any easementary right, irrespective of the decision under section 131(1) by the Tahsildar. The effect of section 257 and section 131(2) is that the enquiry and decision by the Tahsildar based on "previous custom" and "conveniences of parties" in regard to any private easementary rights relating to right of way or right to water will always be subject to the decision of the civil court in any civil suit 11 by any party relating to that matter. Therefore it has to be held that section 257 providing for exclusion of jurisdiction of civil court in regard to certain matters, does not apply to any suit involving or relating to easementary rights.
12. But some decisions of the Madhya Pradesh High Court have proceeded on the assumption, rather erroneously and without any basis, that the private easements including right of way referred under section 131 of the Code, are not the easements which are dealt with in the Indian Easement Act, but are a new type of easement unknown to general law of easements, which require to be decided by the Tahsildar only with reference to the previous customs and conveniences of parties. A distinction is sought to be drawn by those decisions, between easements under the Easement Act and easements under section 131 of the Code, by holding that the Easement Act deals with easements perfected by prescription, whereas section 131 of the Code refers to private easements, which are not perfected by prescription. They also proceed on the basis that in view of section 131 of the Code providing for a Revenue Authority, that is a Tahsildar, to deal with the special type of private easements provided for in section 131 of the Code, civil courts will have no jurisdiction to entertain or decide any matter relating to such type of private easements, having regard to the bar contained 12 in section 257 of the Code; and consequently any decision of the Tahsildar under section 131 of the Code is amenable only to an appeal and thereafter a revision provided under the Code itself, and is not open to challenge in a civil suit [See : Nathuram v. Siyasharan - 1969 JLJ 115 and Rambai v. Harchand - 1979 RN 532].
13. On the other hand, other decisions of the Madhya Pradesh High Court have taken the view that a civil court is not barred from entertaining suits for declaration and/or injunction, against a person who has secured an order under section 131 of the Code, to declare such order of Tahsildar as illegal and not binding or to restrain the defendant from exercising the right recognized by the Tahsildar [Gopidas (Mahant) v. Ram Krishna Pandey - 1971 JLJ 825 and Fakka v. Hariram - 1984 RN 422]. In Gopidas (supra), a learned Single Judge of the Madhya Pradesh High Court (A.P. Sen, J., as he then was) explained the position succinctly, thus: "The scheme underlying the section, envisages a suit under section 131(2) by the claimant for the establishment of his right, if such right is not recognized by the Tahsildar. This necessarily implies that the correctness of the finding reached by the Tahsildar may be questioned in subsequent legal proceedings in the ordinary Courts of law. No doubt, the language of section 131(2) is susceptible of the construction suggested by the learned counsel that the right of a suit is confined to the claimant. This, however, does not result in the consequence that a person, on whose property a right of way is declared by Tahsildar to exist, should have no remedy for the protection of his rights in property, against an arbitrary or erroneous assumption of jurisdiction by the Tahsildar." 13 We respectfully agree with the said observations. The decisions in Nathuram and Rambai are not good law.
14. At this juncture we may refer to the relevance of Wajib-ul-arz while dealing with cases of customary easements. Section 242 of the Code deals with Wajib-ul-arz and is extracted below : "242. Wajib-ul-arz.--(1) As soon as may be after this Code comes into force, the Sub-Divisional Officer shall, in the prescribed manner, ascertain and record the customs in each village in regard to - (a) the right to irrigation or right of way or other easement;
(b) the right to fishing;
in any land or water not belonging to or controlled or managed by the State Government or a local authority and such record shall be known as the Wajib-ul-arz of the village. (2) The record made in pursuance of sub-section (1), shall be published by the Sub-Divisional Officer in such manner as may be prescribed.
(3) Any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record under sub- section (2), institute a suit in a civil court to have such entry cancelled or modified.
(4) The record made under sub-section (1) shall, subject to the decision of the civil court in the suit instituted under sub-section (3), be final and conclusive.
(5) The (Sub-Divisional Officer) may, on the application of any person interested or on his own motion, modify an entry or insert any new entry in the Wajib-ul-arz on any of the following grounds : (a) That all persons interested in such entry wish to have it modified; or 14 (b) That by a decree in a civil suit it has been declared to be erroneous; or (c) That being founded on a decree or order of a civil court or on the order of a Revenue Officer it is not in accordance with such decree or order; or (d) That being so founded, such decree or order has subsequently been varied on appeal, revision or review; or (e) That the civil court has by a decree determined any custom existing in the village." Rules have been made under section 242 relating to Wajib-ul-arz vide notification dated 2.2.1966, Rule 2 thereof is extracted below : "2. Customs under sub-section (1) of section 242 shall be ascertained and recorded in the Wajib-ul-arz under the following heads, namely : - (i) Right to irrigation; (ii) Other water-rights;
(ii) Right to fishing;
(iv) Rights of way, village roads, paths, drains and the like; (v) Rights of persons of other villages over the lands of the village;
(vi) Rights of the villagers over the lands of other villages; (vii) Other easement - (a) Burial and cremation ground, (b) Gaothan, (c) Encamping-ground, (d) Threshing-floor, (e) Bazars, (f) Skinning-grounds, (g) Rights to graze and take fuel, (h) Manure and rubbish; (viii) Other miscellaneous rights."
15. Wajib-ul-arz is thus the record of customs in a village in regard to (i) easements (including the right to irrigation and right of way); and (ii) the right to fishing in privately owned/held lands and water bodies. The entries therein could be modified in the manner provided in sub-section (5) of 15 section 242 of the Code. Though the Code provides for maintaining a record of all customary easements imposed upon privately held lands and water bodies, significantly the Code does not provide the remedies available in the event of disturbance or interference with such easements recorded in Wajib- ul-arz, as the remedy is only way of a suit before the civil court. Customary easements are the most difficult to prove among easements. To establish a custom, the plaintiff will have to show that (a) the usage is ancient or from time immemorial; (b) the usage is regular and continuous; (c) the usage is certain and not varied; and (d) the usage is reasonable. If the Wajib-ul-arz (where such a record is maintained) records or shows the customary easement, it would make the task of civil courts comparatively easy, as there will be no need for detailed evidence to establish the custom. Be that as it may. If the remedy for violation of a customary easement recognized and recorded in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in regard to violation of a customary easement not recognized or recorded in the Wajib-ul-arz, the remedy would be only by way of a summary enquiry by the Tahsildar under section 131 of the Code, and not by a suit, before the civil court. Conclusion
16. In the circumstances, we reject the contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or 16 otherwise of a customary easement (relating to right of way or right to take water, to a person's land). The decision of the Tahsildar after a summary enquiry with reference to the `previous custom' and with due regard to the conveniences of all parties, under section 131(1) of the Code, is open to challenge in a civil suit and subject to the decision of the civil court. The jurisdiction of the civil court to try any suit relating to easements is not affected by section 131, 242 or section 257 of the Code. In view of the above, this appeal is allowed and the judgments and decrees of the courts below are set aside and it is declared that the civil court has the jurisdiction to try the suit filed by the appellants. The trial court is requested to dispose of the suit expeditiously.
............................J
[R. V. Raveendran]
............................J
[A. K. Patnaik]
New Delhi; July 4, 2011.
RAM KANYA BAI & ANR. v. JAGDISH & ORS. [2011] INSC 559 (4 July 2011)
Judgement Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4922 OF 2011 [Arising out of SLP [C] No.8497 of 2007]
Smt. Ramkanya Bai & Anr. ... Appellants
V/s.
Jagdish & Ors. ... Respondents
R.V.RAVEENDRAN, J.
Leave granted.
2. The appellants claim to be the owners of lands bearing Khasra Nos.29/2/2 and 29/1. The first respondent Jagdish claims to be the owner of Khasra Nos.36/3 and 36/4. The first respondent made an application to the Naib Tahsildar, Tappa Betma, Depalpur, Indore District, under section 131 of the Madhya Pradesh Land Revenue Code, 1959 (`Code' for short) claiming a right of way over Khasra Nos.29/2/2 and 29/1 of the appellants, to reach his lands bearing Khasra Nos.36/3 and 36/4. The Naib Tahsildar made on order dated 25.10.2001, under section 131 of the Code, holding that 2 first respondent, with his agricultural equipments, bullock-cart etc., was entitled to pass through the Government Road, Khasra No.21 (East to West) of the village Salampur and thereafter pass through Khasra Nos. 29/1 and 29/2/2 belonging to the appellants, for reaching his land bearing Khasra Nos.36/3 and 36/4 and the appellants shall not obstruct such passage. The appeal by the appellants filed against the said order under section 44 of the Code was dismissed and the subsequent revision filed by the appellants under section 50 of the Act was also dismissed.
3. Thereafter appellants filed Civil Suit No.66A/2002 on the file of the Civil Judge (Class II), Depalpur, Indore district for the following reliefs : (a) a declaration that the first respondent did not have any right of way over their lands bearing Nos.29/2/2 and 29/1 to reach his lands bearing Khasra Nos.36/3 and 36/4 and that they are entitled to enjoy their lands without any interference from first respondent; (b) for a declaration that the order dated 25.10.2001 passed by the Tahsildar creating a new passage, over khasra Nos.29/1 and 29/2/2, was illegal; and (c) for a consequential injunction restraining first respondent from creating/ constructing any new passage, over their lands. The said suit was dismissed by the trial court, by judgment dated 4.12.2004 on the ground that having regard to section 131 read with section 257 of the Code, the revenue court (Tahsildar) alone had jurisdiction 3 to grant relief on the basis of custom and convenience of parties, and it did not have any jurisdiction. The appeal (Appeal No.3-A/2005) filed by the appellants was dismissed by the first appellate court on 19.4.2005. The subsequent second appeal filed by the appellants was also dismissed by the High Court on 19.1.2007. The said judgment is under challenge in this appeal by special leave.
4. On the contentions urged by the parties, the following questions arise for our consideration: (a) Whether the jurisdiction of the civil court to entertain a suit for declaration or injunction, claiming a customary easement of right of way or right to take water, through the land of a servient owner, is barred by section 257 of the Code, on the ground that it is a matter which the Revenue Officer (Tahsildar) is empowered to decide under section 131 of the Code? (b) Whether the civil court has no jurisdiction to entertain a suit by the owner of a land for a declaration that the defendant does not have an easementary right, customary or otherwise, over his property and the order of Tahsildar under section 131 of the Code recognizing such right, is illegal and erroneous?
5. Section 131 of the Code deals with rights of way and other private easements. It is extracted below :
"131. Rights of way and other private easements.--(1) In the event of a dispute arising as to the route by which a cultivator shall have access to his fields or to the waste or pasture lands of the village, otherwise than by the recognized roads, paths or common land, including those road and paths recorded in the village Wajib-ul-arz prepared under section 242 or as to the source from or course by which he may avail himself of water, a Tahsildar may, after local enquiry, decide the matter with reference to the 4 previous custom in each case and with due regard to the conveniences of all the parties concerned.
(2) No order passed under this section shall debar any person from establishing such rights of easement as he may claim by a civil suit."
Section 257 deals with the exclusive jurisdiction of revenue authorities in regard to revenue matters under the Code, and bar of jurisdiction of civil courts in regard to such matters. The relevant portion thereof is extracted below :
"257. Exclusive jurisdiction of revenue authorities.--Except as otherwise provided in this Code, or in any other enactment for the time being in force, no Civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which the State Government, the Board, or any Revenue Officer is by this Code, empowered to determine, decide or dispose of, and in particular and without prejudice to the generality of this provision, no Civil Court shall exercise jurisdiction over any of the following matters-- (a) to (z-2) xxxxx [not extracted as not relevant]"
6. An analysis of section 131 of the Code shows that it provides for the adjudication by the Tahsildar, in respect of disputes raised by a cultivator, relating to any of the following three private easementary rights:- a) the route by which a cultivator shall have access to his fields;
b) the route by which a cultivator shall have access to waste or pasture lands of the village; and c) the route by which a cultivator shall have access to the source from which, or the course by which, he may avail himself of water. 5 Section 131 provides that such disputes shall be decided in each case, by the Tahsildar, after a local enquiry, with reference to the previous custom and with due regard to the convenience of all parties concerned. The disputes relating to recognized roads, paths or common land including those roads and paths recorded in the village Wajib-ul-arz prepared under section 242 of the Code are expressly excluded from the scope of section 131 of the Code. It is thus clear that what could be decided under section 131 of the Code is a dispute relating to a claim for a customary easement over a private land, relating to a right of way or right to take water, which is not recognized and recorded as a customary easement in the village Wajib-ul-arz.
7. The definition of different easements, the manner of imposition and acquisition of easementary rights, the incidents of easements and the remedies in case of interference or disturbance with easements are governed by the provisions of the Indian Easements Act, 1882. Easement Act refers to the different methods by which easements are acquired or imposed, that is, namely easements by grant, easements of necessity, easements by prescription and customary easements. Acquisition of an easementary right, by any of the aforesaid methods, requires fulfillment of the conditions prescribed under the Easements Act. A private easement, including a right of way to a person's land or right to take water from a source to his land, 6 cannot be acquired in a manner not contemplated or prescribed by the Easement Act. Easements by grant require a grant by the owner of the servient heritage. Easements of necessity are based on implied grants or reservations made by the owner of a servient heritage, at the time of disposition such as transfers and partitions. Easements by prescription can be acquired only by peaceable and open enjoyment, without interruption for twenty years. Customary easement can be are acquired by virtue of a local custom.
8. Having regard to section 9 of the Code of Civil Procedure, a civil court can entertain any suit of civil nature except those, cognizance of which is expressly or impliedly barred. In Kamala Mills Ltd. v. State of Bombay [1965] INSC 120; [AIR 1965 SC 1942] this court held :
"The normal rule prescribed by section 9 of the Code of Civil Procedure is that the courts shall (subject to the provisions contained in the Code) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred......... Whenever it is urged before a civil court that its jurisdiction is excluded either expressly or by necessary implication to entertain claims of a civil nature, the Court naturally feels inclined to consider whether the remedy afforded by an alternative provision prescribed by a special statute is sufficient or adequate. In cases where the exclusion of the civil Courts' jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question and the adequacy or the sufficiency of the remedies provided for by it may be relevant but cannot be decisive. But where exclusion is pleaded as a matter of necessary implication, such considerations would be very important, and in conceivable circumstances, might even become decisive. If it appears that a statute creates a special right or a liability and provides for the determination of the right and liability to be dealt with by tribunals specially constituted in that behalf, and it further lays down that 7 all questions about the said right and liability shall be determined by the tribunals so constituted, it becomes pertinent to enquire whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not."
(emphasis supplied) In Dhulabhai v. State of Madhya Pradesh - [1968] INSC 93; 1968 (3) SCR 662, a Constitution Bench of this Court held that exclusion of the jurisdiction of the civil court is not readily to be inferred with, unless the following, among other conditions apply :
"(1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure............ (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not."
9. The Code nowhere bars the jurisdiction of civil courts to decide upon easementary rights relating to agricultural or other lands. The Madhya Pradesh Land Revenue Code neither creates nor recognizes any new 8 category of private easementary rights either by way of right of way or right to take water, which is not covered by the provisions of the Easements Act or which is not required to fulfill the requirements prescribed by the Easements Act. An easement cannot be acquired otherwise than in the manner provided in the Easement Act. Section 131 of the Code does not provide for or recognize a new type of easement which is not contemplated or recognized in Easement Act, but merely deals with customary easements covered by section 18 of the Easements Act. Nor can it be said that the elements of an easement required to be fulfilled under the Easement Act are not required in respect of a private easement under section 131 of the Code. Apart from the fact that section 131 of the Code does not deal with acquisition of any special easement by some method which is not referred in the Easements Act, sub-section (2) of section 131 expressly provides that irrespective of any order passed by the Tahsildar under section 131, any person can establish any right relating to an easement by a civil suit. There is nothing in section 131 or any other provision of the Code, which makes the decision of the Tahsildar final and not open to question in a civil court. Therefore, the decision of the Tahsildar will not bar a subsequent civil suit by either party to a proceeding under section 131 of the Code, in respect of the easement claimed in the proceedings under section 131 of the Code.
9
10. When a person (dominant owner) has an easementary right, and the servient owner disturbs, obstructs or interferes with his easementary right, or denies his easementary right, the remedy of the dominant owner is to approach the civil court for the relief of declaration and/or injunction. Similarly, when a person who does not have an easementary right, tries to assert or exercise any easementary right over another's land, the owner of such land can resist such assertion or obstruct the exercise of the easementary right and also approach the civil court to declare that the defendant has no easementary right of the nature claimed, over his land and/or that the defendant should be prevented from asserting such right or interfering with his possession and enjoyment.
11. Section 257 relates to the exclusive jurisdiction of the revenue authorities. Any statutory provision ousting the jurisdiction of civil courts should be strictly construed. A suit for enforcement of an easementary right or for a declaration that the defendant does not have any easementary right over plaintiff's property or a suit for injunction to restrain a defendant from interfering with the possession of plaintiff or exercising any easementary right over plaintiff's property, is not barred by the Code. Such suits do not fall under any of the excluded matters enumerated in clauses (a) to (z-2) of section 257 of the Code. Section 257, no doubt, also provides that no civil 10 court shall entertain any suit instituted to obtain a decision or order on any matter which the State Government, the Board or any Revenue Officer is empowered to determine by the provisions of the code. But this is subject to the opening words of the section "except as otherwise provided in this Code or in any other enactment for the time being in force". We have already noticed that sub-section (2) of section 131 of the Code reserves and retains specifically the jurisdiction of the civil court to entertain suits relating to any easements, irrespective of the decision of the Tahsildar on a similar issue. Sub-section (2) of section 131 provides that no order passed under section 131 shall debar any person from establishing such rights of easements as he may claim by a civil suit. Therefore the right to decide upon the nature of easements and enforcement of easements is expressly preserved for decision by a civil court in a civil suit. The two fold object of sub-section (2) of section 131 is to declare that section 131(1) of the Code does not deal with a matter which is in the exclusive province of revenue authorities and also to enable either party to approach the civil court in regard to any easementary right, irrespective of the decision under section 131(1) by the Tahsildar. The effect of section 257 and section 131(2) is that the enquiry and decision by the Tahsildar based on "previous custom" and "conveniences of parties" in regard to any private easementary rights relating to right of way or right to water will always be subject to the decision of the civil court in any civil suit 11 by any party relating to that matter. Therefore it has to be held that section 257 providing for exclusion of jurisdiction of civil court in regard to certain matters, does not apply to any suit involving or relating to easementary rights.
12. But some decisions of the Madhya Pradesh High Court have proceeded on the assumption, rather erroneously and without any basis, that the private easements including right of way referred under section 131 of the Code, are not the easements which are dealt with in the Indian Easement Act, but are a new type of easement unknown to general law of easements, which require to be decided by the Tahsildar only with reference to the previous customs and conveniences of parties. A distinction is sought to be drawn by those decisions, between easements under the Easement Act and easements under section 131 of the Code, by holding that the Easement Act deals with easements perfected by prescription, whereas section 131 of the Code refers to private easements, which are not perfected by prescription. They also proceed on the basis that in view of section 131 of the Code providing for a Revenue Authority, that is a Tahsildar, to deal with the special type of private easements provided for in section 131 of the Code, civil courts will have no jurisdiction to entertain or decide any matter relating to such type of private easements, having regard to the bar contained 12 in section 257 of the Code; and consequently any decision of the Tahsildar under section 131 of the Code is amenable only to an appeal and thereafter a revision provided under the Code itself, and is not open to challenge in a civil suit [See : Nathuram v. Siyasharan - 1969 JLJ 115 and Rambai v. Harchand - 1979 RN 532].
13. On the other hand, other decisions of the Madhya Pradesh High Court have taken the view that a civil court is not barred from entertaining suits for declaration and/or injunction, against a person who has secured an order under section 131 of the Code, to declare such order of Tahsildar as illegal and not binding or to restrain the defendant from exercising the right recognized by the Tahsildar [Gopidas (Mahant) v. Ram Krishna Pandey - 1971 JLJ 825 and Fakka v. Hariram - 1984 RN 422]. In Gopidas (supra), a learned Single Judge of the Madhya Pradesh High Court (A.P. Sen, J., as he then was) explained the position succinctly, thus: "The scheme underlying the section, envisages a suit under section 131(2) by the claimant for the establishment of his right, if such right is not recognized by the Tahsildar. This necessarily implies that the correctness of the finding reached by the Tahsildar may be questioned in subsequent legal proceedings in the ordinary Courts of law. No doubt, the language of section 131(2) is susceptible of the construction suggested by the learned counsel that the right of a suit is confined to the claimant. This, however, does not result in the consequence that a person, on whose property a right of way is declared by Tahsildar to exist, should have no remedy for the protection of his rights in property, against an arbitrary or erroneous assumption of jurisdiction by the Tahsildar." 13 We respectfully agree with the said observations. The decisions in Nathuram and Rambai are not good law.
14. At this juncture we may refer to the relevance of Wajib-ul-arz while dealing with cases of customary easements. Section 242 of the Code deals with Wajib-ul-arz and is extracted below : "242. Wajib-ul-arz.--(1) As soon as may be after this Code comes into force, the Sub-Divisional Officer shall, in the prescribed manner, ascertain and record the customs in each village in regard to - (a) the right to irrigation or right of way or other easement;
(b) the right to fishing;
in any land or water not belonging to or controlled or managed by the State Government or a local authority and such record shall be known as the Wajib-ul-arz of the village. (2) The record made in pursuance of sub-section (1), shall be published by the Sub-Divisional Officer in such manner as may be prescribed.
(3) Any person aggrieved by any entry made in such record may, within one year from the date of the publication of such record under sub- section (2), institute a suit in a civil court to have such entry cancelled or modified.
(4) The record made under sub-section (1) shall, subject to the decision of the civil court in the suit instituted under sub-section (3), be final and conclusive.
(5) The (Sub-Divisional Officer) may, on the application of any person interested or on his own motion, modify an entry or insert any new entry in the Wajib-ul-arz on any of the following grounds : (a) That all persons interested in such entry wish to have it modified; or 14 (b) That by a decree in a civil suit it has been declared to be erroneous; or (c) That being founded on a decree or order of a civil court or on the order of a Revenue Officer it is not in accordance with such decree or order; or (d) That being so founded, such decree or order has subsequently been varied on appeal, revision or review; or (e) That the civil court has by a decree determined any custom existing in the village." Rules have been made under section 242 relating to Wajib-ul-arz vide notification dated 2.2.1966, Rule 2 thereof is extracted below : "2. Customs under sub-section (1) of section 242 shall be ascertained and recorded in the Wajib-ul-arz under the following heads, namely : - (i) Right to irrigation; (ii) Other water-rights;
(ii) Right to fishing;
(iv) Rights of way, village roads, paths, drains and the like; (v) Rights of persons of other villages over the lands of the village;
(vi) Rights of the villagers over the lands of other villages; (vii) Other easement - (a) Burial and cremation ground, (b) Gaothan, (c) Encamping-ground, (d) Threshing-floor, (e) Bazars, (f) Skinning-grounds, (g) Rights to graze and take fuel, (h) Manure and rubbish; (viii) Other miscellaneous rights."
15. Wajib-ul-arz is thus the record of customs in a village in regard to (i) easements (including the right to irrigation and right of way); and (ii) the right to fishing in privately owned/held lands and water bodies. The entries therein could be modified in the manner provided in sub-section (5) of 15 section 242 of the Code. Though the Code provides for maintaining a record of all customary easements imposed upon privately held lands and water bodies, significantly the Code does not provide the remedies available in the event of disturbance or interference with such easements recorded in Wajib- ul-arz, as the remedy is only way of a suit before the civil court. Customary easements are the most difficult to prove among easements. To establish a custom, the plaintiff will have to show that (a) the usage is ancient or from time immemorial; (b) the usage is regular and continuous; (c) the usage is certain and not varied; and (d) the usage is reasonable. If the Wajib-ul-arz (where such a record is maintained) records or shows the customary easement, it would make the task of civil courts comparatively easy, as there will be no need for detailed evidence to establish the custom. Be that as it may. If the remedy for violation of a customary easement recognized and recorded in the Wajib-ul-arz is by way of a civil suit, it is inconceivable that in regard to violation of a customary easement not recognized or recorded in the Wajib-ul-arz, the remedy would be only by way of a summary enquiry by the Tahsildar under section 131 of the Code, and not by a suit, before the civil court. Conclusion
16. In the circumstances, we reject the contention that Tahsildar alone has the jurisdiction, and not the civil court, to decide upon the existence or 16 otherwise of a customary easement (relating to right of way or right to take water, to a person's land). The decision of the Tahsildar after a summary enquiry with reference to the `previous custom' and with due regard to the conveniences of all parties, under section 131(1) of the Code, is open to challenge in a civil suit and subject to the decision of the civil court. The jurisdiction of the civil court to try any suit relating to easements is not affected by section 131, 242 or section 257 of the Code. In view of the above, this appeal is allowed and the judgments and decrees of the courts below are set aside and it is declared that the civil court has the jurisdiction to try the suit filed by the appellants. The trial court is requested to dispose of the suit expeditiously.
............................J
[R. V. Raveendran]
............................J
[A. K. Patnaik]
New Delhi; July 4, 2011.
Wednesday, July 27, 2011
Domestic violence
Thursday, January 27, 2011
Shouting at spouse is domestic violence in UK
Supreme Court said though according to the dictionary, violence means physical attack, it can apply to extreme fervour or fury
LONDON: Men and women who shout at their partners risk being thrown out of their homes under a sweeping ruling by judges on Wednesday. Raising your voice at a husband or wife, or a boyfriend or girlfriend, now counts as domestic violence under the landmark Supreme Court judgment.
The decision also means that denying money to a partner or criticising them can count as violence and bring down draconian domestic violence penalties from the courts. The Supreme Court made its decision in the case of a woman who left her husband’s council flat and then demanded a new council home.
She said she left because she had suffered domestic violence — even though her husband had never harmed her. Lady Hale, leading a bench of five justices, said the definition of violence must change so that a range of abusive behaviour now counts in law.
The decision will affect domestic violence and family law which has given the courts powers to throw someone out of their home if their partner accuses them of violent behaviour. Until now violence has always had to mean physical assault. AGENCIES
Shouting at spouse is domestic violence in UK
Supreme Court said though according to the dictionary, violence means physical attack, it can apply to extreme fervour or fury
LONDON: Men and women who shout at their partners risk being thrown out of their homes under a sweeping ruling by judges on Wednesday. Raising your voice at a husband or wife, or a boyfriend or girlfriend, now counts as domestic violence under the landmark Supreme Court judgment.
The decision also means that denying money to a partner or criticising them can count as violence and bring down draconian domestic violence penalties from the courts. The Supreme Court made its decision in the case of a woman who left her husband’s council flat and then demanded a new council home.
She said she left because she had suffered domestic violence — even though her husband had never harmed her. Lady Hale, leading a bench of five justices, said the definition of violence must change so that a range of abusive behaviour now counts in law.
The decision will affect domestic violence and family law which has given the courts powers to throw someone out of their home if their partner accuses them of violent behaviour. Until now violence has always had to mean physical assault. AGENCIES
M/S. GIRNAR TRADERS v. STATE OF MAHARASHTRA & ORS. (11 January 2011)
Interpretative process, as a tool of interpretation, introduced new dimensions to the expansion of law enacted by Legislature, through Judge made law. Amongst others, doctrines of `legislation by reference' and `legislation by incorporation' are the creation of judicial pronouncements. One of the earliest instances, 3 where the Privy Council, then responsible for Indian Judicial system, accepted the plea of `legislation by incorporation' and interpreted the statute accordingly in the case of Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd. [AIR 1931 PC 149]. This judicial pronouncement was followed in different subsequent judgments and these doctrines were analyzed in greater depth for bringing out the distinction between them. The judgment of the Privy Council was referred with approval by this Court in different judgments including Municipal Commissioner of Howrah v. Shalimar Wood Products [(1963) 1 SCR 47]; Bolani Ores Ltd. v. State of Orissa [(1974) 2 SCC 777]; Mahindra & Mahindra v. Union of India [(1979) 2 SCC 529]; Ujagar Prints v. Union of India [(1989) 3 SCC 488]; U.P. Avas Evam Vikas Parishad v. Jainul Islam [(1998) 2 SCC 467]; Nagpur Improvement Trust v. Vasant Rao [(2002) 7 SCC 657] and Maharashtra State Road Transport Corporation v. State of Maharashtra [(2003) 4 SCC 200]. The principle that was enunciated by the Privy Council in the case of Hindusthan Co-operative Insurance Society Ltd. (supra) stated, "where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to 4 the subsequent Act, can be deemed to be incorporated in it, at all events, if it is possible for the subsequent to function effectually without the addition". Though this principle has been reiterated from time to time; with the development of law, still certain doubts were reflected in the judicial pronouncements of the courts as to the application of this principle as an absolute proposition of law. On the contrary, this principle received criticism from various quarters. The critics said that it was causing impediments in smooth operation of the later law as well as abdication of legislative power by the concerned legislative constituent. Another criticism and argument which, in fact, was even advanced before us is that while approving the principle stated by the Privy Council, the subsequent Benches have not taken into consideration the impact of the judgment of the Constitution Bench of this Court in B. Shama Rao v. Union Territory of Pondicherry [(1967) 2 SCR 650]. A pertinent constitutional aspect that ought to have been brought to the notice of different Benches was that the federal structure of the Constitution had come into force which controlled governance of the country and therefore the principles, inter alia, stated by the Privy Council could not be adopted as law of universal application without appropriately modifying the 5 stated position of law to bring it in complete harmony with the constitutional mandate. In the case of Gauri Shankar Gaur v. State of U.P. [(1994) 1 SCC 92], one member of the Bench of this Court, relied upon the principle stated in Hindusthan Co-operative Insurance Society Ltd. (supra) and held that in a case of legislation by incorporation, subsequent amendment or repeal of the provisions of an earlier Act adopted cannot be deemed to have been incorporated in the adopting Act which may be true in the case of legislation by reference. This judgment was relied upon by another Bench of this Court in the case of State of Maharashtra v. Sant Joginder Singh Kishan Singh [1995 Supp.(2) SCC 475]. The amendments in various relevant laws and introduction and application of newly enunciated principles of law resulted in varied opinions. A Bench of this Court in the case of Girnar Traders v. State of Maharashtra [(2004) 8 SCC 505] (hereinafter referred to as `Girnar Traders-I) expressed certain doubts on the correctness of the law stated in the case of Sant Joginder Singh (supra) and referred the matter to a larger Bench.
Pith & Substance
The doctrine of pith and substance find its origin from the principle that it is necessary to examine the true nature and character of the legislation to know whether it falls in a forbidden sphere. This doctrine was first applied in India in the case of Prafulla Kumar Mukherjea v. Bank of Commerce Ltd., Khulna [AIR 1947 PC 60].
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