Advocate

Vayaliparambil, Vazhakkala Annex..!

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A dream come true.. A home for my twins to run around.. Some land for me to plant trees.. Introducing my new address – Vayaliparambil, Moolepadam Road, Vazhakkala, Kakkand West – 682030. Everyone is invited.!

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Hurdles in turning Kerala green!

It was World Earth Day yesterday and all people ranging from radio jokeis to politicians were crying for planting more trees in Kerala. I have planted lot of trees in this world. My home is surrounded with so many trees that the place can be safely described as amini private forest. My father and I have planted lot of aanjili, mahogany and aariveep trees alone the roadsides of Aluva-Munnar Road. From my experience as a person who has planted many trees, there are several small small hurdles, in the character of malayalees and laws implemented here, which need to be corrected, if we are actually serious about increasing the tree cover. They are enumerated hereunder for identifying the huddles in turning Kerala Green.

  1. Roadside Advertisers and Billboards: These people are the single biggest enemy of trees in Kerala. They like to have a clear view for their advertisements and to ensure that, they would cut down all trees and plants in the vicinity. Why aren’t they banned or regulated yet?
  2. Municipality Sweepers: Municipality sweepers like to keep their workload small. Whenever they see one newly planted sapling, they would ensure that all the waste swept from the city is collected at bottom of that plant, and would set it afire, so that plant does not generate any new waste in future, for them to sweep.
  3. Electricity Linemen: KSEB has a team of people with sickles attached to long rods to cut trees. Although they are supposed to prune the branches alone, to avoid touching with the electricity lines, they often cut the head of the tree itself, dwarfing the tree and impairing its growth.
  4. Dangerous Trees and abuse of S.133CrPC: The law says that if a tree is danger to man or his property, or if it is a nuisance to his neighbour, it shall be cut down. Section 133 CrPC is invoked by the RDO to cut down such trees. According to me, this provision is much due for repeal or reading down. It has outlived its purpose, and is in fact a burden upon this generation, which is striving to increase tree cover.
    How can the RDO determine whether a tree is good, bad or decaying, when he is no expert of trees? Why should a tree be cut down just because a dimwitted neighbour thinks that it is a nuisance? Although Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, permit persons to freely plant trees in his land and ‘appropriately and generally’ contribute to the increasing tree cover, no RDO or Court ever permits a person to retain the branches of his tree hanging onto neighbour’s property. This according to me is a downside in the existing law, or its interpretation, in promoting tree cover.
  5. Beautifying the cities with concrete: In Perumbavoor, my home town, there used to be mud and soil in between footpath and edge of the road. Now it is concreted to beautify the city. The  idea is great, but it is implemented in the most ugly and unscientific manner.Once the mother earth is covered up in concrete, there is no place for trees to grow, or water to percolate. After this gap was filled with concrete, Perumbavoor witnessed its first flood during last year’s rain. Some beautification it was. Better to retain the mother earth as it is.
  6.  No incentive for having trees: The building rules prevalent in the state give no concession for having trees; or penalty for not having trees in a property. This is a serious lacuna in the existing building rules of the State, which has provisions for sundry measures like rainwater harvesting and biogas plant. An owner of a property should be given due credit for growing trees, while constructing a building. Absence of such a credit has created a social norm and prudence of not having trees in commercially important properties.
  7. Penalty for not having a tree in a piece of land: I have seen many lands, with sufficient space for planting trees, but without any tree. Most malayaees like to have tiled open spaces rather than tree-shaded open spaces. This is to avoid the pain of sweeping the grounds daily. The government should overcome this lethargy of malayalees by imposing proper penalties. At lease one tree in a plot of land should be made the state policy in taxing statues.
  8. Conservation of Paddyland and Wetland Act, 2008: I not a fan of this statue, although it is promulgated on the pretext of preserving environment. According to me, this law has has been single handedly responsible for changing the climate of Kerala. It has been highly counter productive so far, and it has resulted in drastic reduction of paddy fields in Kerala. Everyone now wants to convert their paddyland, as it is made into a burden with lot of disabilities attached. This is not the correct way to preserve paddylands. The government should at least let paddy field owners cultivate other crops and trees (like rubber) to retain the minimum greenery the state has.

Today it is 36 degree Celsius in Kochi. We are witnessing unprecedented summer heat. If we don’t act now and increase the tree cover in Kerala, soon the place would be a desert, populated with hotair inflated egoistic persons.

ജഡ്ജിമാർക്ക് പുസ്തകം എഴുതികൊടുക്കുന്ന വക്കീല്

കീഴില്ലം എൽദോസ് ചേട്ടൻ എന്റെ ഓഫീസിലെ ഒരു സ്ഥിരം സന്ദർശകനാണ്. ടിയാന്റെ പ്ലൈവുഡ് ഫാക്ടറിക്കു പഞ്ചായത്ത് ലൈസൻസ് നേടിക്കൊടുത്തതാണ് എന്റെ ആദ്യത്തെ പ്രമാദമായ വിജയം. അദ്ദേഹം ഒരു ദിവസം കുശലാന്വേഷണത്തിന് എന്റെ ഓഫീസിൽ വന്നപ്പോൾ മേശപ്പുറത്തിരിക്കുന്ന മാഗസിൻചട്ടയിൽ എന്റെ പേര് എഴുതിയിരിക്കുന്നത് ശ്രദ്ധിച്ചു. പുസ്തകം മറിച്ച് നോക്കുന്നത് കണ്ട് ഞാൻ പറഞ്ഞു കൊടുത്തു ആ പുസ്തകത്തിലാണ് കേരളാ ഹൈകോടതിയുടെ പ്രധാനമായ വിധികൾ പ്രസ്ഥീകരിക്കുന്നതെന്ന്. എല്ലാം മനസ്സിലായി എന്ന മട്ടിൽ എൽദോസ് ചേട്ടൻ തലയാട്ടി സ്ഥലം വിട്ടു.

ഒരാഴ്ച്ചക്ക് ശേഷം ഞാൻ ഫയൽ ചെയ്ത ഒരു ചെറിയ കേസിൽ ഒരു കാരണവുമില്ലാതെ എതിർകക്ഷി ഒരു മുതിർന്ന അഭിഭാഷകനെ ഹാജരാക്കി. ഞാൻ കൌതുകത്തോടെ എൻഗേജിങ് വക്കിലിനോട് ചോദിച്ചു എന്താണ് പെട്ടെന്ന് ഈ കേസിൽ മുതിർന്ന അഭിഭാഷകനെ കൊണ്ടുവരാൻ കാരണമെന്ന്. പുള്ളി ചിരിച്ചു കൊണ്ട് പറഞ്ഞു ടിയാന്റെ കക്ഷി എന്നെ പറ്റി അന്വേഷിച്ചപ്പോൾ ഞാൻ ജഡ്ജിമാർക്ക് പുസ്തകം എഴുതി കൊടുക്കുന്ന വക്കീലാണെന്നാണ് അറിഞ്ഞതെന്ന്. അമ്പരന്ന് ഞാൻ കൂടുതൽ അന്വേഷിച്ചപ്പോൾ, ടി വൃത്താന്തത്തിന്റെ ഉറവിടം എൽദോസ് ചേട്ടൻ ആണെന്ന് മനസ്സിലായി. ഒന്നും പറയാൻ കഴിയാതെ ചിരിച്ചുകൊണ്ട് ഞാൻ എൽദോസ് ചേട്ടനെ വിളിച്ചു, ഒരു ചായ മേടിച്ചുതരാമെന്നു പറഞ്ഞു.

Kerala High Court Cases

Finally I’m included in the nameboard !

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It took five years for my father to put my name up on his office nameboard.

I lie with garbage but got up with flies : Story of my First Victory

Law practice of any junior lawyer in High court is mostly confined to adjournments, pass-overs, stay extensions and the like summary proceedings. One just has to memorize some usual phrases like ‘Your Lordship may kindly have the case on some other day’. ‘My lord, the senior is engaged in another court, may kindly pass over the matter’ etc. Opportunities to make full length arguments are hard to come by since the Kerala High Court is more a ‘Court of Interim Orders’ rather than supposed to be ‘Court of Record’. Even if something comes up in a hearing court, a junior lawyer has no chance to represent, unless the case is absolutely absurd and someone is required to bury the garbage. I have done many garbage-processing-full-length-arguments and on many occasions, the judges have buried me along with the garbage.

Anyway, this post is about my first victory in a full-length-argument, which is special and was surprise to all. This time the case was entrusted to me not by my senior but by a family friend, Moiduka, who wanted a junior lawyer to do the garbage processing. Moidukka, when he had sawmill business, did not disclose the actual number of workers he had for payment of ESI Contributions.  The ESI Inspector detected it and made a Best Judgment Assessment on omitted wages against him. The case, before it reached me, had already undergone several rounds of litigation and at every forum, it was decided against my client. I got the brief only in its last stage when the ESI Corp despite winning the case in court below, got greedy and filed an Insurance Appeal in High court for granting interest on contribution due to it. Basically the appeal is just for getting the statuary prescribed Interest which, I would say, EI Court forgot to provide in its judgment after upholding the Assessment made against my client. There was hardly any scope to defend the appeal since the aspect was already covered by many decisions of the Supreme Court and the assessment period was long long back viz 1976-1982 (I was born only in 1985). My client who had successfully evaded payment of any contribution even after losing the case in EI court, just wanted me to prolong the litigation little longer,  specifically, till he kicks the bucket. He was 82 years old and had already settled all his assets along with the saw mill in favour of his children.

Apprehending disposal of the case in the admission stage itself, I started investigating into old records of the case. I understood that Assessment was tilted in my client’s favour and any further fiddling with it would be like rocking a Pandora’s box. But then luckily I found out from the records that there was a delay of 5 years in completing re-assessment in 1991 by ESI Corporation, after the High court set aside the initial assessment in the first round of litigation. Though no objection was made about it, either by the party with ESI Inspector or before the lower court, it gave me some weird ideas. I took my chances and filed a cross objection under Order 41 Rule 22 of CPC highlighting the delay in re-assessment and prejudice that has caused to my client. (Cross Appeal was not feasible since there would be delay of 3 years).

When the matter came up before Justice M.N. Krishnan for admission, first thing he noticed was why a cross objection and not a cross appeal? Whether a cross objection is maintainable in an Insurance Appeal? Why an attack is fielded against delay in Re-Assessment rather than on merits of the concluded Assessment? He got skeptical and understood that it was just a ‘Modaku petition’ to prevent the 100% merited appeal from disposing off in admission stage itself and to prolong the matter. He got very angry and indigently declared that Cross objection would be dismissed on delay (I had 7 days of delay in filing Cross Objection, courtesy my clerk who had never heard about it) and directed the opposite counsel to file an objection against my delay condonation petition.

Honestly, I got disappointed. Not that the case didn’t deserve it, but the client actually mattered to me. He had been our client from my great grandfather’s age and was very much incidental to Appa’s success and promotion of Appa’s office at Perumbavoor. I felt that if the case is again heard before the same judge, he may allow the appeal and dismiss my cross objection with cost. So I even asked my clerk Sanoj, to talk/cajole the people at section and try to bury the case somewhere deep so that it doesn’t come up before the same judge. But the opposite counsel very promptly filed the objection to my delay condonation petition and moved for early posting of the case.

When the case came after a week as Item 405 in the petition list which is the de-facto hearing list of Court-5B, the judge immediately recognized the case, the wicked cross objection and the delay of 7 days useful to neutralize my wickedness. But this time he was more pleasant and listening and very curiously asked my original intentions. I very honestly explained that it was my personal case and couldn’t afford to lose it, unlike briefs of my senior, where my obligation is limited. May be to encourage a junior lawyer or to see what I’ve come up with (coz I had some big books with me) he very patiently decided to hear the matter on merits before condoning the delay. I argued the case for about 25mins and explained the unresonablity of 5 years delay in re-assessment (caused only because my client changed his address about which I maintained my discretion) and the prejudice it has caused to my client. The judge very skilfully pointed out that such an objection was not taken up in the court below.  I painted the lower court lawyer with ignorance of limitation vis-à-vis reasonable period and suggested that court below did not consider the case from the angle ie of reasonable time . I pinned my entire arguments on the principle that when an authority is vested with power, the power has to be exercised within a reasonable time. The judge after hearing my arguments became interested in formulating some guidelines for re-assessment and enquired scope for remanding the matter with the opposite counsel. Shocked at the change in attitude of the Judge, he explained that the Assessment was of 1976-1982, ie 30 years old and any remand would kill the whole process. Thereafter, I embellished the aspect of prejudice that has visited my client and made the judge dictate the judgment before opposite counsel waste any more precious time of the court (he didn’t argue even for 3mins). In result, my cross objection was allowed and the judgment of EI court was set aside for fresh consideration from the perspective of reasonable time for re-assessment. In simple words, nothing would happen for next 5 years. It also opened up new ground to set aside the Assessment itself before EI court.

It was an enormous victory for the reason that even without filing any appeal I got the judgment of lower court set aside. No body including Moiduka or Appa expected the case to last any more than the admission stage, but now entire garbage got recycled and became a good case. After the victory, Moiduka presented me with a big Tiffin Carrier of Thalasherri Mutton Biriyani and some pocket money..:) It was Appa’s advice at night after his celebration drinks that prompted me to write this blog and share my experience. ‘A junior lawyer is given only garbage. Handle the garbage, lie with dogs, when possible get up and fly up with flies. In time you will learn to fly and dominate the sky.’