INDIAN LAWYER

Christmas round the corner...

2010-11-22T19:02:00.001+04:00

My last post was a Christmas wish... and another Christmas is round the corner!! Am into blogging once again...

HAPPY CHRISTMAS!

2009-12-17T11:12:00.001+04:00

Advent, originally uploaded by anadelmann.

Dear Readers,

Wish you all a wonderful Christmas!!

National Biometric Archive ~ Need of the hour

2008-11-28T13:25:00.001+04:00

It is high time, we should consider setting up a National Biometric Archive. The DNA profiles of every newborn should be done and results should be collected and systematically archived. Every citizen who turns 18 should get his/her fingerprint, iris, face and other such biometric data recorded. This data should be added to their respective DNA profile. This data should be added to the election identity cards, passports etc. equipped with electronic chips, which are to be issued in smart card form. Implementing this system can go a long way in early and effective detection of crimes; and in implementing effective surveillance.

Boss is Boss: Think twice before...

2008-03-04T06:32:00.005+04:00

In India, you cannot anymore dream to redeem your job back if you manhandled your superior at workplace. A school teacher was dismissed from service for physically assaulting the school Principal. He challenged the order in Central Administrative Tribunal which held that the punishment was disproportionate and reinstated him. This was upheld by the High Court in appeal. The management took the matter to the Supreme Court of India by preferring a Special Leave Petition. The Supreme Court held that a teacher is expected to be a role model in the society. He is a 'guru' who sets himself as an example for the students. The Court held that person who physically assaults the Principal of the institution is not fit to be a teacher.

Kendriya Vidyalaya Sangathan & Anr Vs. Satbir Singh Mahla
Civil Appeal No. 1666 of 2008 arising out of Special Leave Petition (Civil) No. 8217/2006
Date of Judgment: 29/02/2008
Bench: H.K. Sema & Markandey Katju

What it means to stand as Guarantor

2008-02-03T09:04:00.000+04:00

Shalini was new to that office… Hailing from a faraway village, the bustling environs of Bangalore was thrilling but too intimidating to her naïve self. It was a relief when her co-worker Swetha readily offered her friendship. The bold, ever-smiling and amiable nature of Swetha soon made her Shalini’s soul mate.

One day, Swetha brought her an application and agreement… “Hai, Shalu… would you please help me sweetiee” She continued… “Please sign these applications… I am getting a loan from XYZ Bank... They need someone to attest these. Where else can I go for this dear? Shalini was more than willing to offer any help… and she was indeed a “friend in deed”. Without thinking twice, she signed all the papers Swetha brought to her, without even reading them… she could not afford to distrust her dearest friend. It was a loan application for ten lakhs, which she needed for buying her new car and latest laptop…

Swetha was a great friend but a terrific spender… She was already in deep debts. She never believed in economizing and budgeting. The inevitable event was soon to follow... Swetha was caught red-handed embezzling money and soon secured her red card out of that office. Civil and criminal prosecutions were lodged against her for recovery and forgery and misappropriation of funds. It was a hard news for Shalini... it was too much for her. Soon she started hearing not-so-pleasant stories about Swetha.. about her vagabond, uncaring and luxurious lifestyle and more of her debt traps. She was in fact nicknamed as “Loanaholic” and she was the last person to know it!! Shalini could not believe what she learned, first until she got a call from XYZ Bank reminding her about the liability. It took her some time to understand the implications. Swetha lost her job and she had no assets. For recovery, the bank had no option but to proceed against her guarantor, Shalini. She tried contacting Swetha… her phone was dead and she had moved from her earlier address. Soon she got a legal notice claiming a hefty sum… It was more than 15 lakhs, and Shalini had to pay if off. The price of friendship? or that of thoughtless action?

When you stand as guarantor, know that you are endorsing the credit of a person. Do it responsibly. By signing a guarantee agreement, you are guaranteeing repayment of the loan. By doing so, you are agreeing to take up the responsibility for the credit given… If the person who takes the loan fails to repay the loan installments, the guarantor too will be held equally liable for the whole loan amount and interest due. So, be cautious next time… Give guarantee only to those persons who are really worth it. Else, be ready to face the nemesis and to lick your wounds.

Applications Forms - Kerala

2007-12-01T10:05:00.002+04:00

fountain pen, originally uploaded by [phil h].

Click here to download prescribed application forms to be filed before various authorities in Kerala State, India.

Run.. don't miss the bus : The Law of Limitation

2007-11-23T18:04:00.002+04:00

STOPWATCH, originally uploaded by Graham Gaches.

If you think you have a cause of action to sue another and intend to do so, do so at the earliest possible opportunity. Law aides only the vigilant... and not those who sleep over their rights - "Vigilantibus non dormientibus jura subveniunt". Various legal systems have prescribed their own periods during which actions, either civil or criminal can be brought in before Courts of Law. This period is called "Law of Limitation" or "Law of Prescription". Normally, law prohibits all actions beyond the relevant prescribed period.

In India, the law of limitation is mainly embodied in "The Limitation Act, 1963" (Act 36 of 1963). As per the definition given in the said Act, "period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of the Act.

Section 3 of the Act imposes the bar of limitation. The periods of limitation for various kinds of actions are listed in The Schedule of the Act. The various kinds of actions are listed as Articles and the respective periods of actions and from what event, the mentioned periods will start to run, are given against each of item.

To illustrate, Article 19 of the Schedule provides:

Art. 19: For money payable for money lent - Period of limitation: 3 years - Time from which period begins to run: When the loan is made.

This means, when the money is lent as loan, a suit for recovery of that amount has to be filed within three years from the day on which the money was lent. If X lent Rs.1,00,000/- to Y on 01.01.2000, if X want to file a suit against Y for the recovery of the same, he/she need to file the suit within three years, i.e., 31.12.2002. If the suit is filed after 31.12.2002, the Court will dismiss the same on the ground that the claim is barred by limitation.

Sometimes this period is prescribed by other statutes as well. For example, Section 142(b) of Negotiable Instruments Act, 1881 prescribes that, no Court shall take cognizance of any offense punishable under Section 138 (for dishonour of cheque) except upon a written complaint being filed in the Court within one month from the date of the cause of action.

Therefore, if you need to file a suit or criminal complaint, consult your lawyer at the earliest and make sure you won't miss the bus...

Justice tempered by mercy

2007-11-22T15:45:00.001+04:00

Justice tempered by mercy, originally uploaded by bhamjay.

Found this at Flickr website.

"Seek wisdom to temper justice with compassion". The concept is that the Angel of Mercy is seen encouraging the Lady of Justice. She is staying the sword of justice to keep it from being used too swiftly, tempering it with compassion. Is this correct jurisprudence?

The sculptor is Glynn Acree from Roswell

Lady Of Justice

2007-11-22T15:40:00.001+04:00

Lady Of Justice, originally uploaded by MacBuckley.

Lady Of Justice on top of the gates of Dublin.

I wonder why Her eyes are not blindfolded? Does this indicate that in the changed times, Lady Justice should open her eyes to see the ground realities?

Lawsuit against Satan...

2007-11-22T07:40:00.000+04:00

Came across this amusing case whilst browsing, where one man sued Satan for all his miseries...

United States ex rel. Gerald Mayo v. Satan and His Staff, 54 F.R.D. 282 (1971)

Gerald Mayo filed a claim before the United States district court for the Western District of Pennsylvania in which he alleged that "Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff's downfall " and had therefore "deprived him of his constitutional rights". Mayo filed this case as in forma pauperis - that is, he claimed that he would not be able to afford the costs associated with his lawsuit and that he should be exempted from paying them.

In its decision the Court referred to an earlier case against Satan where he was mentioned as a "foreign prince" The court noted that the jurisdictional situation was unclear. No previous cases had been brought by or against Satan and so no official precedent existed. The Court refused the request to proceed in forma pauperis on the ground that the plaintiff had not included instructions as to how the U.S. Marshal could serve process on Satan.

Now here is the full text of the case:

UNITED STATES DISTRICT COURT, W. D. PENNSYLVANIA

UNITED STATES ex rel. Gerald MAYO v. SATAN AND HIS STAFF.

Misc. No. 5357.
Dec. 3, 1971.

Plaintiff would not be granted leave to proceed in forma pauperis in civil rights action against Satan and his servants, who allegedly placed deliberate obstacles in plaintiff’s path and caused his downfall, in view of questions of personal jurisdiction over defendant, propriety of class action, and plaintiff’s failure to include instructions for directions as to service of process. Fed.Rules Civ.Proc. rule 23, 28 U.S.C.A.; 18 U.S.C.A. § 241; 28 U.S.C.A. § 1343; 42 U.S.C.A. § 1983.

*282 Gerald Mayo, pro se.

MEMORANDUM ORDER

WEBER, District Judge.

Plaintiff, alleging jurisdiction under 18 U.S.C. § 241, 28 U.S.C. § 1343, and 42 U.S.C. § 1983 prays for leave to file a complaint for violation of his civil rights *283 in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff’s downfall.Plaintiff alleges that by reason of these acts Satan has de-prived him of his constitutional rights.

We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff’s complaint re-veals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official re-ports disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether or not this would raise an estoppel in the present case we are unable to determine at this time. If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.
We note that the plaintiff has failed to include with his com-plaint the required form of instructions for the United States Marshal for directions as to service of process. For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis. It is ordered that the complaint be given a miscellaneous docket number and leave to proceed in forma pauperis be denied.

LOK ADALAT – Justice Through Meditation

2007-11-05T15:53:00.000+04:00

Constituting Enactment:

The Legal Services Authorities Act, 1987 (Central Act 39 of 1987)

Relevant portions of the statute:

Chapters VI & VIA of the Act.

Introduction

“Lok Adalat” is an old form of adjudicating system which prevailed in ancient India. From there we moved to reach the present day judicial system. But today, it is a fact that, most litigations remain in courts for numerous years. The judicial system has become identical to an intricate cobweb where litigants are trapped for their entire lifetimes. In this scenario, the Parliament passed legislation viz. The Legal Services Authorities Act, 1987 (Central Act 39 of 1987) (Hereinafter to be mentioned as ‘the Act’) In order to curb the enormous increase in the backlog of pending cases, the old system of Lok Adalat is reintroduced for the resolution of disputes. “Lok Adalat” means “People’s Court”. Lok Adalat is an Alternate Dispute Resolution System (ADR System) having the backing of the law.

Salient features of Lok Adalat

1) It is based on settlement or compromise reached through systematic negotiations

2) It is a win – win system where all the parties to the dispute have something to gain.

3) It is one among the Alternate Dispute Resolution (ADR) systems. It is an alternative to “Judicial Justice”

4) It is economical – No court fee is payable. If any court fee is paid, it will be refunded.

5) The parties to a dispute can interact directly with the presiding officer, which is not possible in the case of a court proceeding.

6) Lok Adalat is deemed to be civil court for certain purposes.

7) Lok Adalat is having certain powers of a civil court.

8) The award passed by the Lok Adalat is deemed to be a decree of a civil court.

9) An award passed by the Lok Adalat is final and no appeal is maintainable from it.

10) An award passed by the Lok Adalat can be executed in a court.

11) The award can be passed by Lok Adalat, only after obtaining the assent of all the parties to dispute.

12) Code of Civil Procedure and Indian Evidence Act are not applicable to the proceedings of Lok Adalat.

13) A Permanent Lok Adalat can pass an award on merits, even without the consent of parties. Such an award is final and binding. From that no appeal is possible.

14) The appearance of lawyers on behalf of the parties, at the Lok Adalat is not barred. (Regulation 39 of the Kerala State Legal Services Authority Regulations, 1998.

Organisation of Lok Adalat

(Section 19 of the Act)

- The State Authority and District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee and Taluk Legal Services Committee (mentioned in Section 19 of the Act) can organize Lok Adalats at such intervals and places as may be deemed fit.

- Every Lok Adalat so organized shall consist of: (a) Serving or retired judicial officers, (b) other persons, as may be specified.

The experience and qualification of “other persons” in a Lok Adalat conducted by Supreme Court Legal Services Committee shall be prescribed by the Central Government in consultation with the Chief Justice of India. At present, Rule 13 of the National Legal Services Authorities Rules, 1995 prescribes such experience and qualifications as:

(a) A member of the legal profession; or

(b) A person of repute who is specially interested in the implementation of the Legal Services Schemes and Programmes; or

(c) An eminent social worker who is engaged in the upliftment of weaker sections of people, including Scheduled Castes, Scheduled Tribes, women, children, rural and urban labour.

The experience and qualification of “other persons” mentioned in clause (b) shall be prescribed by the State Government in consultation with the Chief Justice of High Court. At present, Rule 13 of the Kerala State Legal Services Authorities Rules, 1998 prescribes the experience and qualifications as:

(i) Eminent social workers who are engaged in the upliftment of Scheduled Castes, Scheduled Tribes, women, children, rural and urban labour and other weaker sections of the society;

(ii) Advocates of standing; or

(iii) Persons of repute who are specially interested in the implementation of the Legal Services Schemes and programmes.

Definition of Court

Section 2 (1) (aaa) of the Act

“Court means a civil, criminal or revenue court and includes any tribunal or any other authority constituted under any law for the time being in force, to exercise judicial or quasi-judicial functions.”

Jurisdiction of Lok Adalat

(Sub Sec 5 of Sec 19 of the Act)

A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to a dispute in respect of:

(i) any case pending before; or

(ii) any matter which is falling within the jurisdiction of, and is not brought before,

any court for which the Lok Adalat is organised.

- The Lok Adalat can compromise and settle even criminal cases, which are compoundable under the relevant laws.

Cognizance of Pending Cases & Determination

(Sec 20 of the Act)

A. On Application:

(i) When all the parties to the case agree for referring the case to Lok Adalat, or

(ii) When one of the party to the case makes an application to court, praying to refer the case to Lok Adalat and the court is prima facie satisfied that there are chances for settlement

B. Suo Moto: Where the court is satisfied that the matter is an appropriate one to be taken cognizance of, by the Lok Adalat.

Then, the court shall refer the case to the Lok Adalat, after giving a reasonable opportunity for hearing to all the parties.

Further, the Authority or Committee organising Lok Adalat may, on application from any party to a dispute, refer the said dispute to Lok Adalat, after giving a reasonable opportunity for hearing to all the parties.

- Lok Adalat shall proceed to dispose of a case refereed to it expeditiously.

- Shall be guided by principles of law, justice, equity and fair play.

- Shall yearn to reach a settlement or compromise between parties.

- When no compromise or settlement is accomplished, the case is to be returned to the court which referred it. Then the case will proceed in the court from the stage immediately before the reference.

Passing of the Award

(Sec 21 of the Act and Regulations 33 & 34 of The Kerala State Legal Services Authority Regulations, 1998)

- Every award of Lok Adalat shall be deemed to be a decree of a civil court.

- Every award shall be signed by all the parties to the dispute and the panel constituting the Lok Adalat.

- Every award shall form part of the judicial records.

- Every award shall be categorical and lucid.

- Every award shall be in the regional language or in English.

- A certified copy of the award will be given free of cost, to all the parties.

- Every award made by Lok Adalat shall be final and binding on all the parties to the dispute, and no appeal shall lie to any court against the award.

- If a pending case is settled at Lok Adalat, any court fee already paid will be refunded as provided by the Court Fees Act, 1870.

Powers of Lok Adalat

(Sec 22 of the Act)

(1) The Lok Adalat shall have the powers of a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters.

(a) Power to summon and enforce the attendance of any witness and to examine him/her on oath.

(b) Power to enforce the discovery and production of any document.

(d) Power for requisitioning of any public record or document or copy thereof or from any court.

(e) Such other matters as may be prescribed.

(2) Every Lok Adalat shall have the power to specify its own procedure for the determination of any dispute coming before it.

(3) All proceedings before a Lok Adalat shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 and 228 of IPC

(4) Every Lok Adalat shall be deemed to be a Civil Court for the purpose of Sec 195 and Chapter XXVI of Cr.P.C.

Permanent Lok Adalat

(Hereinafter mentioned as ‘PLA’ - Chapter VI A of the Act)

- Chapter VI A was newly added by Amendment Act, 2002, introducing the concept of Permanent Lok Adalat.

- The Central or State Authorities may establish by notification, Permanent Lok Adalats at any place, for determining issues in connection to Public Utility Services.

- Public Utility Services include: (1) Transport service, (2) Postal, telegraph or telephone services, (3) Supply of power, light and water to public, (4) System of public conservancy or sanitation, (5) Insurance services and such other services as notified by the Central or State Governments.

- PLAs have the same powers that are vested on the Lok Adalats, mentioned under Section 22(1) of the Act.

- The first PLA in Kerala was setup at Thiruvananthapuram It has jurisdiction over the districts of Thiruvananthapuram, Kollam and Pathanamthitta. Permanent Lok Adalats are now proposed for Kochi and Kozhikode districts too.

Organisational Structure of Permanent Lok Adalat

(Section 22B (2) of the Act)

Chairman

A person who is or has been a district Judge or Additional District Judge or has held judicial office higher in rank that that of a District Judge, shall be the Chairman.

Members

Two other persons having adequate experience in Public Utility Service to be nominated by Central Government on the recommendation of Central Authority and by the State Government on the recommendation of the State Authority.

Cognizance of Pending Cases by Permanent Lok Adalat

(Sec 22C of the Act)

Any party to a dispute can apply to PLA for settlement of a dispute in respect of a public utility service, which is not pending before any court.

PLA does not have jurisdiction to entertain disputes involving offences which are not compoundable.

PLA does not have jurisdiction to entertain a matter where the value of the property involved exceeds ten lakhs, which limit can be enhanced as provided for.

Once, an application is preferred to PLA for determination of a dispute, no party to such application can invoke the jurisdiction of any court in the same dispute.

Procedure by Permanent Lok Adalat for Determination

(Sec 22C & 22D of the Act)

Where the PLA receives an application for determination of a dispute,

1. The PLA should direct each party to file before it a written statement stating therein, all the facts and the nature of the dispute, points or issues and the grounds in support or opposition. PLA may require the parties to file additional statements at any stage.

2. The party may also file any document or such other evidence, in proof of such facts and grounds urged.

3. The copy of the written statement and the documents or such other evidence filed has to be sent to the other parties to the application.

4. When the statement and additional statement and reply if any are filed, PLA shall conduct conciliation process between parties to the application, as it thinks fit, considering the circumstances of the dispute.

5. PLA should assist the parties in their attempt to reach an amicable settlement, in an independent and impartial manner. Every party is duty bound to co-operate in good faith, in the conciliation process.

6. If after the conciliation process, the PLA is of an opinion that there exists elements of settlement in such proceedings, which may be acceptable to the parties, PLA may formulate the terms of a possible settlement of the dispute and give it for the consideration of the parties. If the parties are agreeable to the same, they shall sign the same and PLA shall pass an award in terms of the settlement agreement.

7. If the parties are not agreeable to the settlement formulated, if the dispute is not an offence, then the PLA should decide the dispute on merits.

8. PLA shall, while conducting conciliation proceedings or deciding a dispute on merit, shall be guided by the principle of natural justice, objectivity, fair play, equity and other principles of justice.

9. The PLA, when deciding a dispute on merit, shall not be bound by the Code of Civil Procedure, 1908 and the Indian Evidence Act, 1872.

10. Every award made by the PLA shall be by the majority of the persons constituting the PLA.

11. The award rendered by PLA shall be deemed to be a decree of a civil court and shall be final. The PLA may transmit the award to the court having local jurisdiction for execution.

Criticism: Permanent Lok Adalat

(Sub Sections (1), (2) & (8) of 22C R/w 22D and 22E of the Act)

The right to appeal is one of the most basic features of any sound legal system. It sprouts from the principle ‘to err is human’, It recognizes the fact that it is impossible to be infallible always. Lok Adalats cannot proceed to pass awards unless the parties to a dispute under its consideration, agrees to the passing of an award. In such a situation, by agreeing, the parties are estopping themselves from challenging it afterwards. In that case, denial of an appeal provision can well be justified. But a Permanent Lok Adalat can proceed to dispose of a matter referred to it even without the consent of the parties to such dispute. And the PLA does not have to go by the rules of evidence contained in The Indian Evidence Act. Moreover, a party can be drawn to PLA, despite his wishes. In such a situation, denying a chance to appeal may not be in consonance with our most cherished legal principle: “Justice should not only be done, but should manifestly and undoubtedly be seen to be done." Lord Hewart CJ in Rex v. Sussex Justices, Ex parte McCarthy [1923] All ER 233

Important Precedents

a) Thomas v. Thomas Job 2005 (3) KLT 1042 SC

The award of the Lok Adalat is fictionally deemed to be decrees of the Court and therefore the courts have all the powers in relation thereto as it has in relation to a decree passed by itself. This includes powers to extend time in appropriate cases. The award passed by the Lok Adalat is the decision of the Court itself though arrived at by a simpler method of conciliation instead of the process of arguments in court. The effect is the same. The effort shall be to give life and enforceability to a compromise award and to defeat it on technical grounds. The award of Lok Adalat is final and permanent which is equivalent to a decree executable and the same is ending to the litigation among parties. Held 2003 (3) KLT 936 not good law.

b) Thomas v. Florence 2006 (3) KLT 717

Which court to execute the award of the Lok Adalat? It would be the court of competent jurisdiction that would have entertained the matter for trial, had the matter not been settled in the Lok Adalat.

c) Krishnakumari v. Venugopal 2005 (2) KLT 185

Settlement arrived at by the Lok Adalat shall be guided by the principles of natural justice, equity, fair play and other legal principles. Lok Adalats are not meant to bring down the pendency of cases somehow. When matters over which Family Courts are having jurisdiction are dealt with by Lok Adalats, the decisions arrived at must be in consonance with the provisions contained in Section 9 of the Family Courts Act. Award can be interfered with by the High Court, under Articles 226 and 227 of Constitution, if a patent illegality is involved.

d) Chandran v. Prakasan 2005 (4) KLT 1038

The finality of the award of the Lok Adalat will not bridle the power of the Court to re-determine or cancel the maintenance as provided for u/Sec 127 of Cr.P.C.

e) State of Karnataka v. Gurunath 2000 Crl.L.J. 1192 (Karnataka)

As per the charge sheet, the offence is u/Sec 326 which is not compoundable. But the medical certificates make out only an offence u/Sec 324 which is compoundable. The reference to Lok Adalat is valid.

f) State of Punjab v. Phulan Rani AIR 2004 SC 4105 / 2004 (7) SCC 555

Difference between the terms ‘compromise’ and ‘settlement’. Compromise means settlement of difference by mutual concessions. Settlement denotes termination of legal proceedings by mutual settlements.

g) Moni Mathai & Others v. Federal Bank Ltd. 2003 (1) KLJ 406

Lok Adalat shall not take advantage of ignorance of a party and close their eyes to the legal effect of the terms of settlement.

h) Sailendra Narayan Bhanja Deo v. The State of Orissa AIR 1956 SC 346 (Cn.Bch)

The judgment by consent or default is as effective an estoppel between the parties as judgment whereby the court exercise its mind on a contested case.

Debatable Questions

1. There is a boundary dispute between A and B who are neighbors. B preferred an application before Lok Adalat. A received the notice for appearance before the Lok Adalat, on a particular date. A opts not to attend the Lok Adalat.

(a) Can the Lok Adalat proceed to pass an award, making A exparte?

(b) Can Lok Adalat compel the presence of A before it?

2. A complaint filed by A against B is pending before Consumer Redressal Forum, (CDRF) Ernakulam. Can CDRF refer the matter to the Lok Adalat without the concurrence of A and B?

3. A is charged with an offence punishable under Section 413 of the Indian Penal Code. (Assisting in the concealment of stolen property). The property stolen was belonging to B. The judge feels that there is a chance for settlement between A and B. Can the matter be referred to the Lok Adalat?

4. A agreed to purchase the 25 cents of landed property along with a three-storied building therein, belonging to B located at MG Road, Ernakulam. They entered into a written agreement for sale, fixing the purchase price as 10 crores. A pays three crores rupees to B, as advance. The date for sale was fixed as three months thereafter. B later retracted and disagrees to sell. Can A prefer an application before Lok Adalat seeking settlement of this dispute?

5. A and B are husband and wife. A files a petition for divorce against B before the Family Court. Can the judge, refer the same to the Lok Adalat?

6. There is a dispute between A, B, C, D and E. Through mediation, they arrived at a settlement. Now they want to resolve it by entering into a written agreement. They sought the advice of X, a student of Govt. Law College, Ernakulam. He advised that, instead of entering into an agreement in the usual mode, they can take their dispute to the Lok Adalat, where they can obtain an award incorporating their settlement. How good is this advice?

Amendments to the Act

1. The Legal Services Authorities (Amendment) Act, 1994

2. The Persons with Disabilities (Equal Opportunities) Protection of Rights and Full Participation Act, 1995

3. The Legal Services Authorities (Amendment) Act, 2002

Relevant Portions in The Code of Civil Procedure, 1908

(Section 89, 96(3) & Order 23 Rule 3 of CPC)

Section 89 - Settlement of disputes outside the Court:

(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

(a) arbitration;

(b) conciliation

(d) mediation.

(2) Where a dispute had been referred-

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.]

1. Sec. 89 was repealed by Act 10 of 1940, sec. 49 and Sch. II and again added by Act No. 46 of 1999, section 7 (w.e.f. 1-7-2002).

Sub Section (3) Section 96:

“No appeal shall lie from a decree passed by the Court with the consent of parties.”

Or 23 Rule 3 provides for compromise of suit:

“Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly in part by way of any lawful agreement or compromise, written and signed by the parties, the Court after satisfying itself about the settlement, it can convert the settlement into a judgment decree.”

Relevant Provision of Cr.P.C

Section 320: Compounding of offences

References

The full text of The Legal Services Authorities Act, 1987 is available for your exact reference at: http://kelsa.gov.in/act1.htm

Website of Legal Services Authority, Kerala: http://kelsa.gov.in

Office of the Kerala State Legal Services Authority

Niyama Sahaya Bhavan, High Court Compound,

Ernakulam, Kochi, Kerala State

Pin Code: 682 031

Address of the Permanent Lok Adalat, Thiruvananthapuram

Sowparnika, T.C.25/3305, Opposite Judicial

Officer’s Quarters, Vanchiyoor

Why Indian police resort to torture?

2007-10-12T11:33:00.000+04:00

"Cadoudal was obviously in a position to know who the “young prince” was. Napoleon (Bonaparte) vehemently rejected some of his aides’ suggestion to use torture to make him talk, preferring standard police investigation methods. A real, bloodthirsty tyrant would not have hesitated a single instant to use the barbaric but effective practice of torture." The Duke of Enghien Affair: A Plot Against Napoleon - General Michel Franceschi (ret.)

Yes, in the present civilised world, only a tyrannic society would assent to employ torture, a barbaric method, for the investigation of crime. These days, we see a lot of clamour against the torturous methods resorted to by the police personnel in India. Have you ever wondered what is the root cause for this disturbing social menace?

To a great extent, the main culprit is Section 27 of the Indian Evidence Act, in my opinion... Why?

The duty of the police is to investigate into the crime, apprehend the suspected offender and to bring him/her before the Courts of Law. Whenever a crime is reported to the police, it should register a crime and thereafter investigate into the same in order to find out who perpetuated it.

Whenever a crime is reported, the police is expected to investigate into the matter and identify its perpetrators. In these days, any delay in identifying and apprehending the offenders would be fatal to the credibility of any investigating agency. The public outcry, the media pressure and the constant demand from the higher authorities can exert enormous pressure on the investigating officers to apprehend the offenders at the earliest. In the given circumstances, the easiest course open will be to resort to violent methods for extraction of information... nick named as "Third-Degree Tortures". Our Courts have repeatedly denounced the use of torture by the police.. but when the root cause persists in the statute book, we cannot expect this barbaric practice to end.

Section 25 of the Indian Evidence Act, 1872 maintains that: " No confession made to a police officer, shall be proved as against a person accused of any offense." This means, what ever that is stated to the police by the suspect cannot be used against him, during the trial against him. This restriction is imposed with an intention to make sure that the police would not employ force of any kind on the suspected offender, in order to extract a confession from him/her.

Section 26 of the Indian Evidence Act maintains that: "No confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person." Section 26 proceeds in the same spirit of Section 25. Unless made in the immediate presence of a magistrate, no confession made by a suspected offender to a police officer, can be used against him/her, during the trial.

The general mistrust of the Legislature towards the integrity of the investigating police is reflected in both Section 25 and 26. These sections act as a safeguard against torture, by discouraging the police from resorting to torturous questioning of suspects, during investigative process, with a view to extract confessions. The undertone of these sections is that, an offense is to be investigated by obtaining confessions but through intelligent investigation into the offense.

But, the civility ensured by the two provisions is greatly whittled down due to the operation of Section 27 of the Act. Section 27 of Indian Evidence Act maintains that:

"Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offense, in custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

As per Section 27, anything that is spoken to by the suspected offender to the police officer, which directly led to the discovery of a fact, that portion of what is spoken to by the suspected offender, which directly led into the discovery of the said fact, would be admissible as an evidence during the trial. To illustrate the point, imagine X is accused of murdering Y and is in the custody of the police officer. X says to the police officer.. "come with me, I will show you the knife with which I stabbed Y." The police officer follows X to a place from where the police personnel takes out the knife from its hiding. The sentence "come with me, I will show you the knife with which I stabbed Y." and the fact that the discovery of the knife was made will be admissible in evidence against X, during his trial. The knife would be marked as a material object.

A confessional statement otherwise inadmissible becomes admissible by virtue of Section 27 as follows: (read as a single sentence):

(a) A person who is accused of an offense
(b) gives some information to the police
(c) while he/she is in the custody of the police
(d) which has led to the discovery of a fact/thing

Then,

(e) that part of the information so tendered
(f) which distinctly relates to the fact/thing discovered
(g) will be admissible in evidence against the said accused
(h) if deposed to before the Court by the police, during the trial.

According to Hon'ble Supreme Court "The basic idea embedded in Section 27 of the Evidence Act is he doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature but if it results in discovery of a fact, it becomes a reliable information." Bodh Raj v. State of J&K reported in (2002) 8 SCC 45

What is wrong with Section 27?

In the famous Privy Council case Pulukuri Kottaya v. R (reported in 51 CWN 474 or A 1947 PC 67), while discussing the impact of Section 27, Sir John Beaumont wisely observed:

"Clearly the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate............. That ban (imposed by the two preceding sections [i.e., Sections 25 and 26] ) was presumably inspired by the fear of the Legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban be the inclusion in the confession of information relating to an object subsequently produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effect."

There are numerous circumstances which can pressurise an investigating officer to complete the investigative process at the earliest. Since the career prospects of police personnel are linked to the fast and successful culmination of the investigations they undertake, it would not be surprising if they become overzealous and resort to violence, in the process. It may be true that by employing torture, some truth can be revealed.. but it is also true that, innocent numerous are being subjected to barbaric tortures.. on the excuse that it is for common good.

We are driven by the basic legal principle that "everyone is deemed innocent until proved otherwise.." and still it is a harsh reality that numerous languish in "torture chambers" indefinitely, even before reaching a Court of Law. Our laws postulated principles against "self-incrimination" and still we allow Section 27 - "the Barbaric Shortcut" to remain in our statute book. Until we delete or amend this section in the light of the ground realities now existing, you and me are in the constant danger of being tortured anytime, "in the hands of law... for common good" until you confess whatever you are not even aware of...

The need of the hour is a good revamp of our police-force enabling them to undertake investigations scientifically, by employing intelligence.. and not muscle-power.

To be continued...

Kerala Gazette Online!!

2007-06-29T15:20:00.000+04:00

Click Here to visit the Official Government Gazette of Kerala State. Archives are also provided.

Central Statutes Online - India Code

2007-06-27T17:00:00.000+04:00

Click Here to search Central enactments. Another option is at India Code.

Search Government Gazette Notifications

2007-06-27T16:47:00.000+04:00

Here is a website where you can search State and Central Government Notifications. Click Here to visit the website.

Compulsory registration of marriages

2007-05-03T15:52:00.000+04:00

In compliance of the direction of the Hon. Supreme Court of India dated 14.02.2006, in Seema V. Ashwani Kumar, the Government of Kerala has published in the Extraordinary Gazette dated 16.11.2006 the draft of the new legislation, Kerala Registration of Marriages (Common) Rules, 2006. (click here to download the PDF File) Not sure whether the new Rules has come into effect. According to the said Rules, all the marriages will need to be compulsorily registered (irrespective of religion) with the Local Registrar of Marriages (Common) within a period of 45 days from the date of marriage, either under the above mentioned Rules or under any other statutes in effect. All the marriages that were solemnised before the commencement of the Rules are to be registered so within a period of one year from the date of commencement of the said Rules. The effect of non-compliance is that, after the commencement of the Rules, the Government will not accept any marriage certificates issued by any authority other than that is specified in the said Rules.

Law to regulate professional colleges

2007-05-03T10:15:00.000+04:00

Have a reading of the much controversial law introduced by the Left Democratic Front of Kerala to control the professional colleges in the State. The Kerala Professional Colleges or Institutions(Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee And Other Measures To Ensure Equity And Excellence In Professional Education) Act, 2006 ACT 19 OF 2006

It is PDF file.. download a free PDF reader like PDF-XChange Viewer and install it on your computer to read it.

Wednesbury Unreasonableness

2007-05-02T16:12:00.000+04:00

Going through the judgment dated 12.03.2007 rendered by the Hon. K. Balakrishnan Nair. J of High Court of Kerala, in the case Chandramohan Nair v. State of Kerala, I suddenly came across the usage "Wednesbury Unreasonableness" which aroused my curiosity. The principle is well elucidated in the judgment itself. This principle belong to the domain of Administrative Law and indicate the threshold at which the Courts may consider reversing a administrative decision for want of reasonableness. The usage took its origin from the principle enunciated in the erstwhile case decided by the three judges of the Appeal Court of United Kingdom, Lord Greene M.R., Somervell L.J. and Singleton J. in the case Associated Provincial Picture Houses Ltd. V. Wednesbury Corporation.

The above mentioned judgment of Kerala High Court in WP(C) 13058/2007 was rendered in favour of the petitioner who challenged the appointment by the State Government of another person to the post of Member of the Kerala Consumer Disputes Redressal Commission overlooking him. (BTW, seems the word "Redressal" seems to be an invention of the Indian Legislature.. not seen in any of the online dictionaries at least!). The Government of Kerala invited applications from eligible persons to the aforementioned post by way of notification, to which the petitioner preferred an application. The selection was made by a committee consisting of the President of the State Commission, the Law Secretary of the Government of Kerala and the Secretary to Government, Department of Food, Civil Supplies and Consumer Affairs. He was called for the interview in which he, according to him performed well. The selection committee forwarded the names of the petitioner, 5th respondent and another to the Government. The Government in turn avoided the petitioner and selected the other two persons disregarding the fact that the petitioner was recommended by all the members of the committee as against the 5th respondent who was not recommended by all the members of the committee. The petitioner filed the writ petition challenging the said appointment as vitiated by mala fides. The respondents contended that the persons appointed were fully qualified and the President of the Interview Board was biased towards the petitioner since he was a practicing lawyer and was prejudiced towards the 5th respondent since he was not a law graduate. The respondents argued that as per the provisions of the Consumer Protection Act, 1986, the Government is the appointing authority and is entitled to select from the panel of persons who got recommended by the committee.

The Court while appreciating the right of Government as an appointing authority to make appointments, pointed out that the selection committee being there, the power to deviate from the recommendation of the selection committee should be exercised sparingly and only on valid grounds. In other words, the said power of the Government can be exercised only fairly and reasonably. The Court took note of the fact that, the relevant files of the Government did not disclose why the Government did not prefer the petitioner (especially when he got recommended by all the members of the selection committee, unlike the 5ht respondent). The Court observed that if the Government found 5th respondent as a better candidate and preferable to the petitioner notwithstanding the recommendation of the selection committee, it can definitely appoint the 5th respondent overlooking the petitioner, had the files of the Government was not silent on such an aspect. The Government failed to consider and give reasons as to why the petitioner who recommended by all the members of the selection committee was ignored and that fact vitiated the process. Therefore, the Court observed that the order passed by the Government appointing the 5th respondent is vitiated for failing to advert (consider) to relevant matters. The Hon. Justice proceeded to observe that the said would amount to Wednesbury Unreasonableness and elucidated the principle by quoting the original passages from the above mentioned British case : ASSOCIATED PROVINCIAL PICTURE HOUSES, LIMITED v. WEDNESBURY CORPORATION. The relevant portion reads as follows:

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington L.J. in Short v. Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another."

The judgment concluded by stating that, while exercising the discretion in making selection from the panel of names recommended by the selection committee, the claim of the petitioner was not at all considered. The Court observed that the same amounted to "Wednesbury Unreasonableness" and vitiated the order of the Government. Accordingly, the writ petition was allowed directing the Government to decide as to whether petitioner or the 5th respondent is to be appointed to the post in dispute.

To be active again...

2007-05-02T15:41:00.000+04:00

My blogging had been relatively inactive for quite some time.. in the meanwhile, I had been getting mails encouraging me to post more.. thanks to all for your encouraging mails. I believe, this is going to be a fresh start for me..

IndLaw - Portel of Indian Laws

2007-01-09T11:01:00.000+04:00

Click here to visit IndLaw, a nice portal of Indian Laws..

Arbitration

2007-01-09T10:56:00.000+04:00

If you are interested in reading materials related to Arbitration Laws, then proceed by clicking here

CommonLLI - Supreme Court Judgments

2006-07-13T18:03:00.000+04:00

Click here to visit a wonderful portal of Judgments of Honourable Supreme Court of India. The fact that it allows free access to judgments from the year 1950 makes it truely wonderful.

Advantage Consumer

2006-07-12T10:42:00.000+04:00

Found a great website on Indian consumer protection law: http://www.advantageconsumer.com

List of Services under Service Tax (India)

2006-05-31T07:21:00.000+04:00

The 81 services (as of 01-Oct-2005) on which service tax is levied in India

Advertising Agency's Services
Airport Services
Air Travel Agent's Services
Architect's Services
Authorised Service Station's Services
Banking and Other Financial Services
Beauty Treatement Services
Broadcasting Services
Business Auxilary Services
Business Exhibition Services
Cable Services
Cargo Handling Services
Chartered Accountant's Services
Cleaning Activity Services
Clearing and Forwarding Agent's Services
Club or Association Services
Commercial or Industrial Construction Services
Commercial Training or Coaching Services
Company Secretary's Services
Online Information and Database Access or Retrieval Services
Construction of Complex Services
Consulting Engineer's Services
Convention Services
Cost and Work Accountant's Services
Courier Services
Credit Rating Agency's Services
Custom House Agent's Services
Dredging Services
Dry Cleaning Services
Erection Commissionning or Installation Services
Event Management Services
Facsimile Services
Fashion Designing Services
Forward Contract Services
Franchise Services
General Insurance Services
Health and Fitness Services
Insurance Auxiliary Services
Intellectual Property Services
Interior Decorator's Services
Internet Cafe Services
Leased Circuit Services
Life Insurance Services
Mailing List Compilation and Mailing Services
Maintenance or Repair Services
Management Consultant's Services
Mandap Keeper's Services
Manpower Recruitment (or Supply) Agency's Services
Market Research Agency's Services
Opinion Poll Services
Other Port Services
Outdoor Caterer's Services
Packaging Activity Services
Pandal or Shamiana Contractor's Services
Photography Services
Port Services
Programme Producer's Services
Rail Travel Agent's Services
Real Estate Agent's Services
Rent-A-Cab Scheme Operator's Services
Scientific or Technical Consultancy Services
Security Agency's Services
Site Formation and Clearance Excavation and Earthmoving and Demolition Services
Sound Recording Services
Steamer Agent's Services
Stock Broker's Services
Storage and Warehousing Services
Survey and Exploration of Mineral Oil and Gas Services
Survey and Map Making Services
Technical Inspection and Certification Services
Technical Testing and Analysis Services
Telegraph Services
Telephone and Pager Services
Telex Services
Tour Operator's Services
Transport of Goods by Air Services
Goods Transport Agency Services
Transport of Goods other than Water through Pipe Line or other Conduit Services
Travel Agent's Services
Underwriter's Services
Video Production Agency's Services

About Reservation Policy in India

2006-05-30T07:05:00.000+04:00

Coming soon.. may be tonight !!