When the Ordinance became an Act, half of the provisions regarding investment promotions and all, got lost in transit. Typical Kerala Style!
It was during my initial years of practice that I first met Justice B Kamal Pasha, when he was officiating as Principles Sessions Judge, Ernakulam. It was an appeal against conviction under S. 379IPC (Crl App 687/11), and I was seeking suspension of sentence within 5days of imprisonment. He said – nothing doing, that appellant/accused will steal again. I submitted that the accused is recently married, showed the wedding card, and stated that he is expecting a child within 7months – a reformed man. This moved the judge, and he immediately suspended the sentence, without even seeking the report of the prosecutor. (Years later, his brother – B Kalam Pasha J, allowed that appeal and set aside the conviction). The rare empathy showed by Justice Kamal Pasha, in the form of interim suspension of sentence, saved the appellant’s marriage, and my career in criminal law (I am more of a civil guy).
Thereafter, I have consistently appeared before Justice B Kamal Pasha, in Sessions Court and after his elevation, in High Court. J Pasha is a man of simple common sense. He will decide cases on logic and fairness, rather than on strict letters of law. Because of this, in High Court, it was dangerous to appear before him in criminal matters, and more easy to handle in civil jurisdiction. Bold, outspoken and upright, he loved dictating judgments in open court – like a king. Though he had a questionable affinity for limelight and newspaper-recognition, he was a good judge overall.
On his day of retirement, I write this, because he has avowed that he will not take up any government posts hereafter. That is a decision, many good judges shy away from taking, but is a need of the hour to protect the system. He also retired with a blast. In his retirement speech, he criticized the collegium nominees sent for elevation to the Kerala High Court. I had goosebumps, when he said that aloud, in full court reference. It is a matter which many lawyers whispered to each other but never dared to air it in public. Pasha was classic Basha, the character Rajanikanth portrayed, on his day of retirement.
Anyway, I wish Justice B Kamal Pasha, all happiness and peace in his retired life.!
(I am sure he is not done yet, and we will hear more from him)
National Green Tribunal, Southern Zonal Bench at Chennai is moved from TNPCB’s old office to KalasMahal, Ezhilagam, Chepauk from 1st September 2017. The building is an architectural brilliance, an old palace renovated artistically.
Here is the google map location of the place, which is otherwise difficult to find.
One of my clients who is engaged in rearing of duck, wanted to know the various licenses he should have, to conduct his duck farm, legally. He had none at present. But, during the dawn of Goods and Service Tax, he wanted to know the details of other licenses required to conduct duck farming .
In Kerala, duck farming is regulated under the Kerala Panchayat Raj (Licensing of Livestock Farms) Rules, 2012. According to the Rules, one can rear 15 poultry birds in one cent of land. In addition to that, based on the number of birds reared, there should be Fertilizer Pits (വളക്കുഴി), and burial pits (if there are more than 5000 birds), for the farm. The license is to be issued by the Secretary of the concerned Grama Panchayat. The certificates from the Pollution Control Board and District Medical Officer, are necessary, though it can be exempted by the Secretary, if it is so felt by him, on basis of location of the farm.
However, there is a catch to all these. The farm cannot be operated in a paddy land. This is because, according to Kerala Conservation of Paddy land and Wetland Act, 2008, the Panchayat is prohibited from issuing any license in any property classified as Paddy Land. My client was operating his duck farm in a paddy land. Although his land is only partially reclaimed, the entire land is included in the data bank as paddy land. So he cannot get any license from the Panchayat.
This is an anomaly in the law as ducks are traditionally reared in paddy fields. Although I suggested to my client to file a writ petition, to cure the anomaly, he declined to proceed with a case. He rather preferred to do his business under the radar of law, having done so, peacefully, for the last several years. When I pressed him for the real reason for his hesitation, the answer astonished me.
Conventionally, although ducks require amble amount of puddled water for growth; in poultry farms, they are reared in cages, without taking them to water. My client has vast extent of wetland but none of his ducks have the fortune to swim in it. So according to my client, if a case is filed to cure the anomaly in law, it may backfire, questioning his very method of duck farming.
One thing is very clear. Ducks in Kerala are in a state of Catch 22.
If one rears ducks in paddy fields, then he will not get license, and it is rather illegal; and if he rears ducks in dry land, then ducks will not get water. Other alternatives are not commercially viable. So in short, there is no water for ducks, practically and legally, in Kerala.
Anyone who has ever gone to a Family Court, will know that it is not the best place for litigation. There is no decency or ethics, neither among lawyers nor between litigants. This is mostly due to deficiencies in the legal system and unreasonable laws biased in favour of the women.
Here I am concerned with a related matter, about docket multiplication. When a couple approaches a family court for divorce and other related reliefs, there would be numerous cases filed on their behalf.
The husband would be filing for restitution of conjugal rights, custody of children etc, whereas wife usually files for divorce, maintenance, return of gold ornaments etc. Currently, all these are separate cases, having separate proceedings and docket numbers. There would be minimum three original petitions and one miscellaneous case (apart from 498A and domestic violence criminal cases), when a warring couple decides to fight it out in family court. As a topping to the chaos, all these cases are granted separate docket numbers, like OP, MC, MP etc.
I have always wondered why a particular couple is not given a single docket number, so that it is easy for the lawyers and registry to handle their cases. I know, all these cases would not originate all at once, but during different periods of time. But still, if a couple is given one main docket number, and is allowed to file interlocutory applications for maintenance, custody of children etc, then it is more easy for everyone to handle the case file.
Anyhow, at the end, joint trial of all the connected cases would be ordered by the Family Court. So why cant these separate original petitions, of a single family, be consolidated into one? Postings, personal appearance, counselling etc become easy that way.
One original petition intimating arise of the matrimonial dispute, and everything else under it as interlocutory applications. It would be a civilised way of conducting litigation in an otherwise adverse environment.
I can’t really remember all those methods that were formulated to correct the data bank under the Kerala Conservation of Paddy Land and Wetland Act, 2008. There have been numerous. All those procedures were either replaced or repealed, before any application could reach a logical conclusion.
If I remember correctly, first it was the Thasildar under the Kerala Land Tax Act who was empowered to correct the Basic Tax Register (and in course the data bank), if it was found that the land in reality is not a Paddy Land. Later, his power was curtailed, and the Kerala High Court assumed this role in its original jurisdiction. But when number of cases that are filed got out of control, the Kerala High Court decided to relegate the function to the Local Level Monitoring Committee or the Revenue Divisional Officer, depending on the entry in the data bank. Thereafter, in the year 2015, the UDF Government brought in the controversial Section 3A for correction of data bank by the District Collector. But again, this section was repealed after the Kerala High Court warned of it being struck down as unconstitutional.
Sometime in the year 2016, somebody informed the Kerala High Court that there is a Center for Remote Sensing at Thiruvananthapuaram, which has taken satellite pictures of all of Kerala, and it could reveal how the land was lying as on the year 2008. So now, the Kerala High Court has again assumed the responsibility of correcting the data bank, after calling for report from this “Kerala State Remote Sensing and Environment Centre, Thiruvananthpuaram” through the Agricultural Officer, who is the convener of the Local Level Monitoring Committee. This is the procedure in currently in vogue for correcting the data bank, but now it is learned that a new notification has come into effect.
I haven’t seen the official notification, but the newspaper report is enclosed here under for reference. According to that report, one has to go directly to the Local Level Monitoring Committee, for correction of mistakes in the data bank, within 90days from 1st June 2017. The time limit of 90days is prescribed only for the Kerala High Court to strike it down.
For me, one thing is very clear. The Kerala Conservation of Paddy land and Wetland Act, 2008, is an unruly gal, wandering here and there without any resolve, and yet to enter her teenage. When she is a teenager, I bet, all including the Kerala Government, Environmental Activists and Kerala High Court would vie to tame her, and get her attention, with their own pieces of advice.
So, according to me, it is better to wait and watch, and see how this girl grows up into a woman, instead of rushing in for her immediate attention.
PS: The amendment GO (P) No. 34/2017/Revenue dated 30/5/2017 (SRO 301/2017) is embedded hereunder
In the book, India After Gandhi by Ramachandra Guha, the following passage about Constituent assembly debates was found interesting:
Jaipal Singh, himself an adivasi, albeit of a rather special kind. Jaipal was a Munda from Chotanagpur, the forested plateau of South Bihar peopled by numerous tribes all more-or-less distinct from caste Hindu society. Sent by missionaries to study in Oxford, he made a name there as a superb hockey player. He obtained a Blue, and went on to captain the Indian team that won the gold medal in the 1928 Olympic Games.
Three years later, in the discussion on the draft constitution [of India], Jaipal made a speech that was spirited in all senses of the word. Bowing to pressure by Gandhians, the prohibition of alcohol had been made a directive principle. This, said the adivasi leader, was an interference ‘with the religious rights of the most ancient people in the country’. For alcohol was part of their festivals, their rituals, indeed their daily life itself. In West Bengal ‘it would be impossible for paddy to be transplanted if the Santhal does not get his rice beer. These ill-clad men . . . have to work knee-deep in water throughout the day, in drenching rain and in mud. What is it in the rice beer that keeps them alive? I wish the medical authorities in this country would carry out research in their laboratories to find out what it is that the rice beer contains, of which the Adibasis need so much and which keeps them [protected] against all manner of diseases.”
So I’m not alone in thinking that alcohol is an essential ingredient in leading a spirited life. Certain enlighted founders of the Indian Constitution also shared this view.