LawTotal15-10-11

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A world law fortnightly published from Hyderabad, India.

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Volume 7: Part 2 15 October 2011 No. 19

C O N T E N T S

1. Rights end where harm begins 1

2. Occupy Wall Street… 2

3. Lok Pal: Ombudsman or 3-6,

Prosecutor? (4) by IMS 71

4. AB v. W. Australia [AUS-HC] 7-15

5. Lithgow City Council 16-22,

v. Jackson [AUS-HC] 55-70

6. Royal Archid Hotels & Anr.

v. Jayarama Reddy (IND-SC) 23-37

7. State of Haryana v. Mukesh

Kumar & Ors. (IND-SC) 38-47

8. Union of India v. Hassan

Ali Khan & Anr. (IND-SC) 48-54

9. Case of alleged

horse-stealing (James Grant) 72-74

10. On the doctrine of

Rajadroha (13), I.M. Sharma 75

11. Poems, Wilfred Owen 76

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RIGHTS END WHERE HARM BEGINS

Courtesy: www.siasat.com Courtesy: www.siasat.com Police bandobust to stop rail roko Rail Roko Arrested for rail roko

Truly, as attributed to the ‘Great Dissenter’ Justice Oliver Wendell

Holmes, Jr., “the right to swing my fist ends where the other man’s nose begins.”

Holmes was indeed greatly influenced by Zechariah Chafee, who in his

“Freedom of Speech in war time” (1919) had earlier clarified: “It is useless to

define free speech by talk about rights. The agitator asserts his constitutional right to

speak, the government asserts its constitutional right to wage war. The result is a

deadlock. Each side takes the position of the man who was arrested for swinging his

arms and hitting another in the nose, and asked the judge if he did not have a right to

swing his arms in a free country. ‘Your right to swing your arms ends just where the

other man’s nose begins’. To find the boundary line of any right, we must get behind

rules of law to human facts…” Also, “Liberty consists in being able to do everything

which does not harm others” (Declaration of Rights of Man, 1789). And even when

Marx was criticizing it as a bourgeois negative right, he was not opting for

absolute, uncontrollable rights but only indicating the greater importance

of social obligations. So, beyond that ‘Lakshman Rekha’ we think freedom

degenerates into license and calls for collective/state action to curb it. Of

course when dealing with sensitive, sentimental mass movements the State

and other groups have, no doubt, to mind caution and wisdom too, but that

does not mean inaction and surrender to anarchy. It only indicates the

need for all necessary measures to be taken step by step – sama, dana,

bheda, dandopaya – force being the last resort. But force cannot be abjured

altogether as there is also much worth in the axiom: “Dandam Dasagunam

Bhavet.” We are very much concerned, and sad, at the various undesirable

social conflicts raging in our country adversely affecting the basic rights of

various sections of the society, and at times even amounting to the stupidity

of “lifting the rock, only to drop it on one’s own feet.” Strikes, Bandhs, Hartals,

etc. when conducted by the people voluntarily for just causes, and with due

regard to the emergent needs, and also with due respect to the rights of

dissenters to freely express their opinions, may be legitimate but not so are

most of such phenomena in our country which are usually nothing but the

result of ‘stone pelting by a few intimidating groups’. ♣♣♣

2 (2011) 2 LAW

Law Animated World, 15 October 2011 2

Occupy Wall Street and

the Democratic Party♣

As the Occupy Wall Street protest enters its

fourth week, it confronts increasingly sharp

political pressures and choices that center on the

question of the Democratic Party. On Thursday,

both President Barack Obama and Vice President

Joe Biden made statements meant to project

sympathy for the protesters; [Obama] declared

that they “are giving voice to a more broad-based

frustration about how our financial system works.” In

virtually the same breath he defended his support

for the TARP [Troubled Asset Relief Program]

bailout of the banks. Biden asserted that the

protests have “a lot in common with the Tea

Party.” He continued: “The Tea Party started,

why? TARP. They thought it was unfair.”

Biden’s reference to the Tea Party was by no

means offhand. …there is a desire within the

[Democratic] party to exploit the protests for its

own purposes, much in the way the Republicans

have utilized the Tea Party. The right-wing, pseudo-

populist Tea Party was largely the creation of the

Republican Party… Nonetheless, it proved able, given the

pro-Wall Street policies of the Obama administration, to tap

into popular anger over the bank bailout and deteriorating

economic and social conditions…

The protest that began on Wall Street and has now

spread across the US has a very different origin and,

unlike the corporate-funded and media-promoted

Tea Party, is a genuine expression of mass popular

discontent. The fact that it is correctly targeting the

bankers and speculators reflects a growth of anti-capitalist

sentiment. This has produced growing alarm in the

US corporate and political establishment. The aim of

the Democrats is to politically emasculate this movement

and somehow harness it behind the reactionary policies of

the Obama administration. They want to turn it into a

harmless safety valve for popular anger while at the same

time using it to “energize” the Democrats’ base. …

Democratic notables have either paid visits to the

encampment at Zuccotti Park or issued statements

of support for the protest. … Representative Charles

Rangel … declared: “The American people have

had enough. They’re mad as hell, and I agree.” ♣ Courtesy: Bill Van Auken & www.wsws.org. Edited excerpts

of article dt. 08-10-2011; emphases in bold ours - IMS.

The millionaire congressman from Harlem may

be “mad as hell,” but not too angry to continue to

rake in Wall Street money. The Democrats’ aims

were further spelled out … by Paul Krugman in

the New York Times Friday: “Occupy Wall Street is

starting to look like an important event that might

even eventually be seen as a turning point.” A

turning point to what? Essentially, a second term for

Barack Obama. “Democrats are being given what

amounts to a second chance,” wrote Krugman,

“The Obama administration squandered a lot of

potential good will … by adopting banker-friendly

policies that failed to deliver economic recovery...

Now, … Mr. Obama’s party has a chance for a do-

over. All it has to do is take these protests as

seriously as they deserve to be taken.” What,

precisely, is Obama to “do over?” The agenda for a

second term has already been set by a $4 trillion deficit-

reduction program that will be translated into devastating

cuts to core social programs such as Medicare, Medicaid

and Social Security, continuing record unemployment, and

even deeper reductions in real wages for the working class.

The Democrats are, in fact, a party of Wall

Street, evidenced both by Obama’s receipt of the

greatest amount of Wall Street campaign cash in

history and, more decisively, by the policies he

has pursued since his election. Historically, the

Democratic Party has been the graveyard of social

struggles of working people in the United States, going

all the way back to the Populist Movement of the late

19th century, to the industrial union movement of the

1930s, to the Civil Rights and the antiwar movements of

the 1960s. All of them were channeled into the

Democratic Party and thereby not only rendered

harmless to the financial elite, but turned into

new props for capitalist rule. … If those who are

protesting against Wall Street are to avoid a similar

fate, they must begin by rejecting the “lesser evil” fraud

and fighting to develop an independent political

movement of the working class in opposition to both

parties of big business and the profit system they

defend. Only the working class – mobilized in a

mass socialist movement – has the power to put

an end to social inequality and reorganize

economic life to meet the needs of the majority of

society, rather than further enrich the top one

percent.

* * * * *


Now it is the turn to discuss about two anti-corruption establishments in Asia – of Singapore and Hong Kong – very much in the news as stringent and successful such agencies which did curb corruption in their respective jurisdictions to a great degree. However, it should be borne in mind that none of these are akin to the institutions of parliamentary ombudsmen discussed earlier in this article but more like our own anti-corruption agencies like the CBI, Central Vigilance Commission, etc.

First Singapore: What exists there is an Anti-Corruption Bureau like our anti-corruption agencies but with effective powers, and above all, the will and dedication, as also political will and support of the government at the helm. The Corrupt Practices Investigation Bureau (CPIB) is a government agency in Singapore set up by the British colonial government as far back as in 1952 to investigate and prosecute corruption in the public and private sectors. The below lengthy quote from an informed article on the web may be quite useful to know some details about its inception and working:

“Corruption was commonplace in Singapore throughout its colonial history. When police inspectors stole 1,800 tons of narcotics during the 1950s, Crown administrators passed the Prevention of Corruption Ordinance and established the Corrupt Practices Investigation Bureau (CPIB). This ordinance was intended to signal investors that the administration in Singapore would not tolerate corruption. However, enforcement was spotty, the CPIB weak, and Singapore kept its reputation for freewheeling and corrupt capitalism. In response, in the 1970s, Singapore reorganized the CPIB and gave it considerable powers to curb endemic corruption. The reorganized CPIB concentrated its activities on investigation and enforcement.

♦

Continued from Law Animated World, 30-09-2011 issue; emphases in bold ours - IMS.

Evidence of the CPIB’s success in reducing corruption is present from Singapore’s highly favorable investment climate that “typically ranks among the top twenty recipients of foreign investment in the world in absolute terms.” This success in attracting investments attests to that government’s ability to overcome the perverse effects of reputation in the persistence of corrupt behavior. A capacity to reverse reputational costs is all the more remarkable given Singapore’s history. In 1959, the British granted Singapore autonomy from Malaysia and independence followed shortly thereafter. At independence, the People’s Action Party implemented a set of reforms to regulate citizens’ behavior and impose strict punishments for corrupt practices. The PAP Government recognized that a credible commitment to fighting corruption was essential to attract investors to Singapore and build an environment conducive to economic growth. Hence, it declared a set of reforms to deter potentially corrupt officials and attract foreign investors. Despite the proclaimed reforms, corruption continued to be a serious problem in Singapore into the mid-1970s when another series of scandals again implicated police officials in the narcotic trade.

These scandals prompted the government of Lee Kwan Yew to strengthen laws and revamp the CPIB to end venality in Singapore’s public sector. The CPIB was devoted entirely to the investigation of corrupt acts and the preparation of evidence for prosecution. Since the 1970s, it has grown from nine investigators to its present staff of over 75 law enforcement professionals. Indeed corruption in Singapore has been reduced to levels that rival the Scandinavian countries.

The CPIB derives its power from legislation that grants it remarkable discretion. First, the 1960 Prevention of Corruption Ordinance gave it a mandate to investigate allegations of corruption and prepare cases for prosecution. This original ordinance has been amended seven times and renamed the Prevention of Corruption Act (Chapter 241 of the Statutes of Singapore). The

LOK PAL: OMBUDSMAN OR PROSECUTOR?LOK PAL: OMBUDSMAN OR PROSECUTOR?LOK PAL: OMBUDSMAN OR PROSECUTOR?LOK PAL: OMBUDSMAN OR PROSECUTOR?

- I. Mallikarjuna Sharma♦♦♦♦

4 Lok Pal: Ombudsman or Prosecutor? (IMS) (2011) 2 LAW


1989 Confiscation of Benefits Act expanded government powers to seize assets of civil servants accused and convicted of taking bribes. This legislation prohibits illegal payments as well as the solicitation and acceptance of bribes. Later, the Confiscation of Benefits Act was strengthened and renamed the Corruption, Drug Trafficking and Other Serious Crimes Act of 1999. These acts give the CPIB discretion to seize assets and establish the preconditions wherein an individual convicted of corruption is punished by lengthy prison terms and substantial fines. Among the CPIB’s unique characteristics are its small size, narrow police emphasis, and service to a semi-authoritarian regime. With only 75 staff members, the CPIB lacks the presence of Hong Kong’s ICAC, and it has accordingly a narrow investigative function. The CPIB has relied on deterrent strategies; for example, a conviction for corruption may carry a $100,000.00 fine and up to five years in prison. Finally, the CPIB was an effective support of Lee Kwan Yew’s semi-authoritarian regime that made economic growth its primary policy objective. Indeed, the fact that Singapore has been ruled by a semi-authoritarian regime since independence renders this commitment and threat of punishment more credible. The organization of Singapore’s CPIB is a strict hierarchy. At the top is the President who receives all reports and may act as the final arbiter of whether the CPIB takes action against alleged corruption. Below the President are the Director, Deputy Director, Assistant Directors, and special investigators of the CPIB. Reports are sent up the hierarchy from the investigative branches of the agency to the President. The CPIB’s relatively narrow functions account for fewer employees and a high rate of successful investigations leading to conviction. Fighting corruption is contentious and Singapore’s political leadership encountered resistance when seeking an appropriate ministerial location for the CPIB. Between 1955 and 1970, the CPIB reported to four different ministries demonstrating the difficulty implementing a meaningful set of reforms to combat corruption. Although the agency has moved from ministry to ministry since being established, its present

location in the Executive branch has endowed it with a great deal of influence. The CPIB is now an integral component of an apparatus of state agencies with a mandate to reduce corruption in public and private life alike in Singapore. Whereas some observers argue that putting the CPIB directly in the Executive branch indicates a high level of commitment on the part of Singapore’s political leadership, it might also be seen as part of the structure of semi-authoritarian rule. Its reporting hierarchy reinforces the executive’s influence while reducing the CPIB’s independence. Indeed, countervailing measures that might control the CPIB, or at a minimum place some constraints through oversight mechanisms, are absent. This lack of accountability of a police function is consistent with the semi-authoritarian nature of Singapore’s government. A litmus test to assess an anti-corruption commission’s accountability might be the activities of oversight bodies. In Singapore, oversight mechanisms are less clearly defined with the CPIB than in Hong Kong’s ICAC. The CPIB reports to an Anti-Corruption Advisory Committee that reports directly to the President. However, since the CPIB was established, public sector corruption has declined with each consecutive year. One commentator has noted that while legislation may not have eliminated corruption, it “is a fact of life rather than a way of life. Put differently, corruption exists in Singapore, but not a corrupt society.” Singapore is a special case since its anti-corruption commission created a climate conducive for international investments while its citizens live under a semi-authoritarian regime that in some circumstances would be inimical to high levels of economic growth. Despite the centralization of power, the CPIB demonstrates that a government’s commitment to combating corruption is critical for meaningful reform. In Singapore, this commitment firstly signaled domestic constituents that corruption would not be tolerated, and secondly, international investors receive assurances that their investments were secure. However, what is crucial about this type of agency is that it operates without the accountability constraints active in a democratic polity. Absent are the

(2011) 2 LAW Lok Pal: Ombudsman or Prosecutor? (IMS) 5


committee systems and multiple reporting mechanisms that work in Hong Kong. Although it would be an error to attribute the extent of foreign investment to the CPIB, it is part of an overall picture of stable property rights and rapid economic growth that has come at a high cost to political freedom.”1

It may be further known that “although [CPIB’s] primary function is to investigate corruption, it is empowered to investigate other criminal cases in which corruption may be involved;” and “incorporated within the Prime Minister’s Office (PMO), the Bureau is headed by a director who reports directly to the Prime Minister. CPIB is therefore independent from the Singapore Police Force and other government agencies to prevent any undue interference in its investigations. It also has the right, similar to the Singapore’s Internal Security Department, to detain suspects of corrupt practices without law trial.”2

It is like our Central Bureau of Investigation constituted under the Delhi Special Police Establishment Act but with more independence and initiative it seems. Also unlike our CBI, it has more repute and standing with its Director being directly appointed by the President of that country – something akin to the manner of appointment of our Central Vigilance Commissioner (CVC). Wikipedia further reveals:

“The Prevention of Corruption Act (PCA), was enacted in June 1960, to provide for the more effectual prevention of corruption. The law also empowers CPIB officers to investigate and arrest corrupt offenders. The PCA was amended a few times since its enactment. Through these amendments, punishments for corrupt offenders were enhanced and CPIB officers were given more investigative powers to make the fight against corruption easier.

Under the PCA, the President may appoint an officer to be the Director of the CPIB. The President may also appoint a Deputy Director

1 See: http://siteresources.worldbank.org/WBI/Resources/

wbi37234Heilbrunn.pdf. 2 Wikipedia, the Free Encyclopedia (on the net).

and such number of assistant directors and special investigators of CPIB as he may deem fit.

What is commonly known as a "bribe" is described as a "corrupt gratification" in the PCA. "Gratifications" can take many forms, and they include: a) money or any gift, loan, fee, reward, commission, valuable security or other property or interest in property of any description, whether movable or immovable; b) any office, employment or contract; c) any payment, release, discharge of liquidation of any loan, obligation or other liability whatsoever, whether in whole or in part; d) any other service, favour, advantage of any description whatsoever, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary or penal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty; and e) any offer, undertaking or promise of any gratification within the meaning of [paragraphs] a, b, c and d.

Under the PCA, an 'agent' means any person employed by or acting for another, and includes a trustee, administrator and executor, and a person serving the Government or under any corporation or public body, and for the purposes of section 8 of PCA (see below) includes subcontractor and any person employed by or acting for such subcontractor. On the other hand, the 'principal' includes an employer, a beneficiary under a trust, and a trust estate as though it were a person and any person beneficially interested in the estate of a deceased person as though the estate were a person, and in the case of a person serving the Government or a public body includes the Government or the public body, as the case may be.

Section 8 of PCA is a presumption section which states : "Where in any proceedings against a person under section 5 or 6, it is proved that any gratification has been paid or given to or received by a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealings with Government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as

6 Lok Pal: Ombudsman or Prosecutor? (IMS) (2011) 2 LAW

Law Animated World, 15 October 2011 (Go to p. 71→)

6

hereinbefore mentioned unless the contrary is proved.". This effectively shifts the burden to the corrupt offender, who has to prove to the Court that the gratification involved is not given or received corruptly [this is akin to Section 20 of our

Prevention of Corruption Act, 1988 (old S. 4 of the

1947 Act)].”

It must however be noted that despite all this stringent and generally upright activities and actions of the CPIB, a dire need is felt by the Singapore civil society which is now pressing for the establishment of an institution of ombudsman to fulfill the declared aim of promotion of an ‘open and inclusive’ society. The following quote may be quite informative in this regard:

“Singaporeans today are well-educated, well-travelled and well-informed. This invariably leads to higher citizenry expectations when it comes to political and corporate governance. Higher expectations are not necessarily negative developments for they signify growing interest in local politics and national agenda. The establishment of an Ombudsman will address higher citizenry expectations in two ways. Firstly, it will signify the Singapore government’s acknowledgement and respect of a maturing Singaporean polity’s desire for a variety of institutions that can reflect the concerns of the ordinary citizen. This will serve to build trust between society and state. Secondly, it will develop local civil society by empowering institutions. While many would agree that capable and honest leaders are vital for good governance, the sign of a mature and self-sustaining society are de-centralised and independent institutions. An Ombudsman is part of this de-centralising process, and is in keeping with Prime Minister Lee Hsien Loong’s call for “active citizenry”.

Growing Public Cynicism: Higher citizenry expectations can also easily transform into public cynicism when these expectations are not met. The National Kidney Foundation (NFK) saga is a vivid illustration of this. In the case of NKF, cynicism stems from the fact that individuals with early misgivings over NKF’s unethical practices had no institution to turn to.3 Though the

3 The National Kidney Foundation Singapore scandal (or the

NKF saga) was a July 2005 scandal involving National Kidney Foundation Singapore following the collapse of a defamation trial which it brought against Susan Long and Singapore Press Holdings (SPH). This caused a massive backlash and fallout of donors to the charity, and

Singapore government has introduced several measures to tighten regulatory procedures, none of these measures address the source of public cynicism, namely, that complaints of unethical corporate behaviour are easily repressed by the threat of lawsuits. Existing measures do not tackle the perception that the “little guy” has nowhere to turn to for action and protection. Many Singaporeans still feel a sense of helplessness and frustration. An Ombudsman will go a long way in addressing this source of public cynicism.

Nurturing a Whistle-Blowing Culture: The Singapore government has, on one hand, publicly encouraged the nurturing of a whistle-blowing culture while, on the other, also rejected calls for new laws to protect whistle-blowers. The message is this: it is better to rely on the personal values and conscience of honest individuals to do the right thing than it is to turn Singapore into an overtly legalistic society. An Ombudsman strikes the right balance. It offers whistle-blowers an avenue to turn to and assures them of proper investigations. Meanwhile, no new laws need to be introduced as existing ones on corporate misdemeanours and corruption are more than adequate. (emphasis ours - IMS.)

Political Capital: The establishment of an Ombudsman is also in keeping with PM Lee’s vision for an “open and inclusive society” and will most certainly become a defining feature of his administration. … … … …

Existing institutions are not equipped to perform the role of Ombudsman. REACH merely collects and conveys public feedback to relevant government agencies. It does not have the power or resources to conduct independent

subsequently resulted in the resignation of Chief Executive Officer T.T DURAI and its board of directors. Allegations surrounding the scandal included the false declarations on how long NKF's reserves could last, its number of patients, installation of a golden tap in Durai's private office suite, his salary, use of company cars and first-class air travel. Former NKF patron Tan Choo Leng, wife of Senior Minister Goh Chok Tong, sparked further outrage when she remarked that T.T Durai's pay of "S$600,000 a year is

peanuts". President of the National Council of Social Service, Gerard Ee, has since been appointed as interim chairman of the organisation. A full independent audit on its finances was conducted by KPMG, and a 442-page report released on 19 December 2005 revealed several malpractices by the former NKF board and management. Durai was arrested on 17 April 2006 and charged under the Prevention of Corruptions Act by the Police. A S$12 million civil suit to recover funds by the new NKF board against Durai and four other former board members began on 8 January 2007. (Courtesy: Wikipedia)

(2011) 2 LAW AB v. Western Australia [AUS-HC] 221


(2011) 2 LAW 221 (AUS-SC)

HIGH COURT OF

AUSTRALIA AT CANBERRA

Matter No. P15/2011

Thursday, 6 October 2011

Between:

AB … Appellant

v.

State of Western Australia

& Anr. … Respondents.

With Matter No. P16/2011

AH … Appellant

v.

State of Western Australia & Anr. … Respondents.

Citation:

AB v. Western Australia*

AH v. Western Australia (2011) 2 LAW 221; [2011] HCA 42

Date: 06-10-2011 Matter no. P15/2011

* * *

FRENCH CJ,

GUMMOW, HAYNE,

KIEFEL AND BELL JJ

ORDER

In each matter

1. Appeal allowed.

2. Set aside paragraphs 1 to 4 of the order of

the Court of Appeal of the Supreme Court

of Western Australia made 2 September

2010 and in their place order that the

appeal to that Court be dismissed.

On appeal from the Supreme Court of

Western Australia

Representation

S Penglis for the appellant in both matters

(instructed by Freehills) * Courtesy: High Court of Australia at URL: http://www.

austlii.edu.au/au/cases/cth/HCA/2011/9.html. Notice: This

copy of the Court's Reasons for Judgment is subject to

formal revision prior to publication in Commonwealth

Law Reports. Emphases in bold ours - IMS.

G T W Tannin SC with C S Bydder for the

first respondent in both matters (instructed by

State Solicitor (WA))

Submitting appearance for the second respondent in

both matters

Intervener

D S Mortimer SC with E A Bennett

intervening on behalf of the

Australian Human Rights Commission

(instructed by Australian Human Rights Commission)

* * *

CATCHWORDS

Statutes – Construction – Gender reassignment –

Applications for recognition certificates as males –

Reassignment procedures undertaken to alter genitals

and gender characteristics – Appellants adopted

lifestyle and have physical appearance of males –

Retain some female sexual organs – Whether

requirement that person have "the physical

characteristics by virtue of which a person is

identified as male or female" met – Whether adverse

social consequences or community standards and

expectations permissible considerations.

Words and phrases – "gender", "gender

characteristics", "physical characteristics by virtue of

which a person is identified", "reassignment

procedure", "recognition certificate", "transsexual".

Gender Reassignment Act 2000 (WA), ss 14(1), 15(1).

* * *

1. FRENCH CJ, GUMMOW, HAYNE,

KIEFEL AND BELL JJ: For many years the

common law struggled with the question of the

attribution of gender to persons who believe that

they belong to the opposite sex. Many such

persons undertake surgical and other procedures

to alter their bodies and their physical appearance

in order to acquire gender characteristics of the

sex which conforms with their perception of their

gender. Self-perception is not the only difficulty

with which transsexual persons must contend.

They encounter legal and social difficulties, due

in part to the official record of their gender at

birth being at variance with the gender identity

which they have assumed.

222 AB v. Western Australia [AUS-HC] (2011) 2 LAW


2. Lockhart J. in Secretary, Department of Social

Security v "SRA"1 and Mathews J in R v Harris

2

reviewed decisions in Australia and overseas

which dealt with the question of the recognition

to be afforded by courts to the gender of a

transsexual person who had undertaken a surgical

procedure. In each case it was3 held that the

decisions in Corbett v Corbett4 and R v Tan

5, which

applied a purely biological test, should not be followed.

Lockhart J in SRA observed that the development

in surgical and medical techniques in the field of

sexual reassignment, together with indications of

changing social attitudes towards transsexuals,

led to that conclusion. His Honour said that gender should not be regarded merely as a matter of

chromosomes. It is partly a psychological question, one

of self-perception, and partly a social question, how

society perceives the individual.6 (emphases ours)

3. In Re T7 McMullin J observed that whilst

courts could deal with some legal situations

involving the reassignment of gender, they could

not make a declaration as to the gender of a

person which would bind persons who were not

parties to the proceedings. Legislation was

necessary.

4. Legislation which provides for the registration

of a change to the official records of a person's

gender has been passed in each of the States and

Territories of Australia.8 In Western Australia the

1 [1993] FCA 573; (1993) 43 FCR 299. 2 (1988) 17 NSWLR 158. 3 In R v Harris (1988) 17 NSWLR 158 at 159, 161-162 per

Street CJ, 193 per Mathews J (Carruthers J dissenting);

in Secretary, Department of Social Security v

"SRA" [1993] FCA 573; (1993) 43 FCR 299 at 304 per

Black CJ, 325 per Lockhart J (Heerey J agreeing with

Black CJ and Lockhart J). See also Attorney-General v

Otahuhu Family Court [1995] 1 NZLR 603 at 605-607

per Ellis J. 4 [1971] P 83. 5 [1983] QB 1053. 6 Secretary, Department of Social Security v "SRA" [1993]

FCA 573; (1993) 43 FCR 299 at 325. 7 [1975] 2 NZLR 449 at 452-453. 8 Births, Deaths and Marriages Registration Act 1995

(NSW), s 32B; Births, Deaths and Marriages

Registration Act 1996 (Vic), s 30A; Sexual Reassignment

Gender Reassignment Act 2000 (WA) (‘the

Act’) provides for the issue of a recognition

certificate which is conclusive evidence of the

fact that a person has undergone a reassignment

procedure and "is of the sex stated in the

certificate".9

5. The long title of the Act states that its purposes

are to allow the reassignment of gender and

establish a Gender Reassignment Board ("the

Board") with power to issue recognition

certificates, and to make necessary consequential

legislative amendments, in order to promote

equality of opportunity and to provide remedies

in respect of discrimination. These statutory

objects and their nature, which is remedial and

beneficial, assume importance in these appeals.

6. The functions of the Board are to receive and

determine applications for recognition certificates

and to issue recognition certificates in suitable

cases.10

On its production the certificate is

required to be registered by the Registrar of

Births, Deaths and Marriages ("the Registrar"),

who must alter any register or index kept by the

Registrar as may be necessary in view of the

reassignment.11

A birth certificate for the person

is to issue from the Registrar showing the

person's sex in accordance with the register.12

7. Before a person can apply to the Board for a

certificate, it is necessary that the person has

undergone a reassignment procedure.13

A

"reassignment procedure" is defined to mean14

:

“a medical or surgical procedure (or a

combination of such procedures) to alter the

genitals and other gender characteristics of a

Act 1988 (SA), s 7; Births, Deaths and Marriages

Registration Act 2003 (Q), s 23; Gender Reassignment

Act 2000 (WA), s 17; Births, Deaths and Marriages

Registration Act 1999 (Tas), s 28A; Births, Deaths and

Marriages Registration Act 1996 (NT), s 28B; Births,

Deaths and Marriages Registration Act 1997 (ACT), s 24. 9 Gender Reassignment Act 2000, s 16(1)(b). 10 Gender Reassignment Act 2000, s 5(2). 11 Gender Reassignment Act 2000, s 17(1). 12 Gender Reassignment Act 2000, s 18(1). 13 Gender Reassignment Act 2000, s 14(1). 14 Gender Reassignment Act 2000, s 3.



person, identified by a birth certificate as male or

female, so that the person will be identified as a

person of the opposite sex and includes, in

relation to a child, any such procedure (or

combination of procedures) to correct or

eliminate ambiguities in the child's gender

characteristics.”

8. Section 15 of the Act contains the conditions

for the grant of a recognition certificate.

Section 15(1)(a) contains certain jurisdictional

requirements. It is satisfied if one or more of the

following applies: that the reassignment

procedure which the applicant has undertaken

was carried out in Western Australia; the

applicant's birth is registered in that State; or the

applicant has been a resident of the State for not

less than 12 months.

9. Section 15(1)(b) provides that the Board must

be satisfied that the person applying for a

recognition certificate:

"(i) believes that his or her true gender is the

gender to which the person has been

reassigned;

(ii) has adopted the lifestyle and has the gender

characteristics of a person of the gender to

which the person has been reassigned; and

(iii) has received proper counselling in relation to

his or her gender identity."

10. The focus of these appeals is sub-par (ii) and

the term "gender characteristics". That term is

defined to mean "the physical characteristics by

virtue of which a person is identified as male or

female".15

What is comprehended by that part of s

15(1)(b)(ii) falls to be determined by construing

its terms in the context of the Act as a whole and

by reference to its evident purposes.16

In

Commissioner for Railways (NSW) v Agalianos17

,

Dixon CJ referred to the importance of the

context, general purpose, policy and fairness of a

statutory provision, as guides to its meaning. The

15 Gender Reassignment Act 2000, s 3. 16 Project Blue Sky Inc v Australian Broadcasting Authority

[1998] HCA 28; (1998) 194 CLR 355 at 381 [69];

[1998] HCA 28. 17 [1955] HCA 27; (1955) 92 CLR 390 at 397; [1955] HCA 27.

modern approach to statutory interpretation uses

"context" in its widest sense, to include the

existing state of the law and the mischief to

which the legislation is addressed.18

Judicial

decisions which preceded the Act may be relevant

in this sense, but the task remains one of the

construction of the Act.

11. Each of the appellants, AB and AH, identify

themselves as male although they retain some

gender characteristics of a female. Each of the

appellants has undergone gender reassignment

procedures, in the nature of a bilateral

mastectomy and testosterone therapy.

12. The Board was satisfied in each case that the

appearance of each of the appellants is that of a

male person and that all the indications were that

they had adopted the lifestyle of such a person.

The sole reason why it determined not to issue a

certificate to them was that they retained a female

reproductive system. The Board reasoned:

"The fact of having a female reproductive system

is inconsistent with being male. Because it is

inconsistent with being male, it is inconsistent

with being identified as male."

The Board went on to say that there would be

adverse social and legal consequences should the

appellants be issued a recognition certificate whilst they

have the capacity to bear children.

13. Following a review of the Board's decisions

in each case, pursuant to s 21(1) of the Act, the

State Administrative Tribunal ("the Tribunal") set

the decisions aside, granted each application for a

recognition certificate and directed the Board to

issue such a certificate.19

The Court of Appeal of

the Supreme Court of Western Australia allowed

appeals from those decisions and set aside the

Tribunal's decisions, but made no orders as to

costs.20

For the reasons which follow these

appeals should be allowed with costs and the

18 CIC Insurance Ltd v Bankstown Football Club Ltd (1997)

187 CLR 384 at 408; [1997] HCA 2. 19 AB & AH v Gender Reassignment Board (WA) (2009) 65

SR (WA) 1 at 21 [145]. 20 The State of Western Australia v AH (2010) AMLC

30-025.



orders of the Court of Appeal set aside, with the

result that the decision and orders of the Tribunal

are reinstated.

14. Each of the appellants gave evidence before

the Tribunal and led medical evidence. Each

identified as a male from an early age and was

diagnosed as suffering from a gender identity

disorder, or gender dysphoria. The Diagnostic

and Statistical Manual of Mental Disorders, to

which the Tribunal referred21

, explains that the

term "gender dysphoria" denotes "strong and

persistent feelings of discomfort with one's

assigned sex, the desire to possess the body of the

other sex, and the desire to be regarded by others

as a member of the other sex."22

AB was aged 31

at the time of the Tribunal hearing and AH was

26. AB commenced testosterone therapy in 2004

and underwent a bilateral mastectomy in 2005.

AH commenced the same therapy in 2006 and

underwent the same surgical procedure in 2007

and had a further revision of the procedure in

2008.23

15. Neither AB nor AH contemplate any further

surgical procedures. It was explained, by medical

evidence to the Tribunal, that a penis construction

(phalloplasty) is not performed in Australia,

because of the high risks associated with it and its

low rate of success.24

Neither of the appellants

wished to have a hysterectomy. Neither

considered it necessary to their sense of male

identity. Each had suffered the effects of surgery

in the past and wished to retain their internal

organs because they believed that they might be

beneficial for future phalloplasty, if advances in

that procedure made it feasible.25

21 AB & AH v Gender Reassignment Board (WA) (2009) 65

SR(WA) 1 at 10 [63]. 22 [The] American Psychiatric Association, Diagnostic and

Statistical Manual of Mental Disorders, 4th ed (text rev)

(2000) at 535. 23 AB & AH v Gender Reassignment Board (WA) (2009) 65

SR(WA) 1 at 7-8 [50], 9 [57]. 24 AB & AH v Gender Reassignment Board (WA) (2009) 65

SR(WA) 1 at 20 [135].


SR(WA) 1 at 8 [52]-[53], 9 [59]-[60].

16. Each of the appellants has maintained

testosterone therapy. Whilst they continue that

treatment they will remain infertile.26

Evidence of

an endocrinologist was tendered at the Tribunal

hearing concerning the possibility, expressed as a

percentage, that each of AB and AH might

conceive children were they to discontinue that

treatment. The endocrinologist gave evidence that

he had not encountered one female to male

transsexual who had ceased the therapy.27

Each of

AB and AH told the Tribunal that they would not

do so and explained that it was essential to their

way of life that they maintain it.28

The Tribunal

accepted this evidence "without reservation".29

17. The Tribunal detailed the changes which had

been brought about to the appellants both

internally, with respect to their sexual organs, and

externally. The Tribunal stated30

:

“The applicants have not merely altered their

external appearance by superficial means. The

medical and surgical procedures they have

undergone have altered their genitals and other

gender characteristics in profound ways. They

have undergone clitoral growth and have the

voices, body shapes, musculature, hair

distribution, general appearance and

demeanour by virtue of which a person is

identified as male. They have acquired

characteristics that are consistent with being

male, and inconsistent with being female, to

the extent that only an internal medical

examination would disclose what remains of

their female gender characteristics. Insofar as

what remains of their female gender

characteristics has been altered to such an

extent that it no longer functions, it is no

longer a female gender characteristic.”


SR(WA) 1 at 3 [4]. 27 AB & AH v Gender Reassignment Board (WA) (2009) 65


SR(WA) 1 at 8 [54], 9 [61]. 29 AB & AH v Gender Reassignment Board (WA) (2009) 65

SR(WA) 1 at 8 [55], 9 [62]. 30 AB & AH v Gender Reassignment Board (WA) (2009) 65

SR(WA) 1 at 20 [138].



18. The Tribunal was mindful of the possibility

that the appellants could not be said, with

absolute certainty, to be permanently infertile.31

However, it accepted that the reversion rate of

female to male transsexuals was rare.32

In the

view of the Tribunal the appellants had done

"everything medically available, short of

hysterectomy, to alter their genitals and other

gender characteristics so as to be identified as

male." It said "[a] requirement that each

[appellant] go even further and undergo a

hysterectomy in these circumstances would seem

to serve the purpose only of requiring further

proof of their conviction.”33

19. The issue before the Court of Appeal was

whether the appellants satisfied the requirement

of s 15(1)(b)(ii). In turn, this required

consideration of the definition of the term ‘gender

characteristics’ and, in particular, whether each of

the appellants has the "physical characteristics by

virtue of which a person is identified" as male.

The majority (Martin CJ and Pullin JA) did not

consider this question could be answered in the

appellants' favour, because the appellants retain

some characteristics of a female. Martin CJ held

that each of the appellants "possess none of the

genital and reproductive characteristics of a male,

and retain virtually all of the external genital

characteristics and internal reproductive organs of

a female" and that "[t]hey would not be

identified, according to accepted community

standards and expectations, as members of the

male gender."34

Pullin JA agreed that it was

necessary to apply community standards in order

to answer the question posed by the Act.35



SR(WA) 1 at 20-21 [141]. 33 AB & AH v Gender Reassignment Board (WA) (2009) 65

SR(WA) 1 at 21 [142]. 34 The State of Western Australia v AH (2010) AMLC

30-025 at 36,058 [115]. 35 The State of Western Australia v AH (2010) AMLC

30-025 at 36,059 [124].

20. Martin CJ recognised the nature of the

legislation to be beneficial, but said that it was of

no assistance on the approach which he took to

the requirements of s 15(1)(b)(ii). That approach

was necessitated because Parliament had

determined “that value judgments are to be made,

involving questions of fact and degree, as to the

gender with which a particular applicant is to be

identified.”36

His Honour rejected the prospect

that a person's gender characteristics might be

determined by the observation of a casual

bystander.37

21. Buss JA dissented. His Honour considered

that the physical characteristics by which a

person is identified as male or female are

confined to external physical characteristics, for

the purposes of the Act.38

His Honour noted that

there are obvious limitations to the extent to

which a person's physical characteristics could be

altered.39

His Honour observed that the purpose

of the Act is to alleviate the condition of persons

suffering from gender dysphoria, by providing a

legislative mechanism which will enable their

reassigned gender to be legally recognised. The

disconformity inherent in gender dysphoria is as

between the person's rejection of their assigned

gender and their external physical characteristics.

It is the latter to which the legislation is directed,

his Honour said.40

22. Buss JA also considered the language chosen

by the Parliament in the definitions of the terms

‘gender characteristics’ and ‘reassignment

procedure’ in the Act. His Honour observed that,

if the physical characteristics by virtue of which a

person is identified as male or female were 36 The State of Western Australia v AH (2010) AMLC

30-025 at 36,056 [105]. 37 The State of Western Australia v AH (2010) AMLC

30-025 at 36,057 [110] 38 The State of Western Australia v AH (2010) AMLC


30-025 at 36,068 [200]-[201]. 40 The State of Western Australia v AH (2010) AMLC

30-025 at 36,069 [202]-[203].



intended to include internal physical

characteristics, such as organs associated with the

person's gender at birth, the definitions would

respectively have referred to the physical

characteristics by virtue of which a person "is" a

male or female or "will be" a person of the

opposite sex.41

Instead the definitions refer to the

physical characteristics by which a person is, or

will be "identified" as a person of the opposite

sex. His Honour read the words "identified as" as

connoting "recognised as".42

23. The general approach of Buss JA is to be

preferred. It gives effect to the evident purpose of

the legislation and is consistent with its terms. It

is an approach that gives proper weight to the central issue with which the legislation grapples: that

the sex of a person is not, and a person's gender

characteristics are not, in every case unequivocally male

or female. As the definition of ‘reassignment procedure’

makes plain, a person's gender characteristics may be

ambiguous. (emphasis ours)

24. The injunction contained in s 18 of the

Interpretation Act 1984 (WA)43

is relevant to the

task of construing the provisions of the Act.

Moreover, the principle that particular statutory

provisions must be read in light of their purpose was

said in Waters v Public Transport Corporation44

to be of particular significance in the case of legislation

which protects or enforces human rights. In

construing such legislation "the courts have a

special responsibility to take account of and give

effect to the statutory purpose". It is generally

accepted that there is a rule of construction that

41 The State of Western Australia v AH (2010) AMLC


30-025 at 36,069 [205] 43 “In the interpretation of a provision of a written law, a

construction that would promote the purpose or object

underlying the written law (whether that purpose or

object is expressly stated in the written law or not) shall

be preferred to a construction that would not promote

that purpose or object.” 44 [1991] HCA 49; (1991) 173 CLR 349 at 359 per Mason

CJ and Gaudron J; [1991] HCA 49.

beneficial and remedial legislation is to be given a "fair,

large and liberal" interpretation.45

(emphases ours)

25. The Act acknowledges the difficulty under

which certain members of society labour by

reason of the disconformity between their belief

about who they are, by reference to their gender,

and the social-historical record of their gender at

birth. It seeks to alleviate that suffering and the

discrimination which such persons may face by

providing legal recognition of the person's

perception of their gender.

26. However, a person's belief about their

gender is but one requirement for the issue

of a recognition certificate. Section 14 of

the Act contains the minimum condition for

a recognition certificate, namely that an

applicant for a certificate has undergone a

medical or surgical procedure to alter their

genitals or other gender characteristics. The

undertaking of that procedure may be seen

to evidence the commitment by the person

to the gender to which the person seeks

reassignment. It was the absence of such an

undertaking on the part of the applicant for

a wife's pension which created the difficulty

in SRA.46

27. Section 15(1)(b)(i) also requires the Board to

be satisfied about the person's belief in his or her

true gender and sub-par (iii) requires the person

to have received proper counselling concerning

his or her gender identity. These are matters

which are directed to how the person perceives

himself or herself and the certainty of that

perception.

45 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at

12 per Brennan CJ and McHugh J, 39 per Gummow J;

[1997] HCA 30, referring to Coburn v Human Rights

Commission [1994] 3 NZLR 323 at 333. 46 Secretary, Department of Social Security v "SRA" [1993]

FCA 573; (1993) 43 FCR 299 at 303-305 per Black CJ,

326 per Lockhart J (Heerey J agreeing with Black CJ and

Lockhart J).



28. Section 15(1)(b)(ii) involves an enquiry, on

the part of the Board, of a different kind. It

requires, in the first place, that the Board be

satisfied that the person has adopted the lifestyle

of a person of the gender to which the person

seeks reassignment. The adoption of a lifestyle

will reflect something about a person's self-

perception and, in some respects, about their

maleness or femaleness. The word "lifestyle"

refers to the characteristic manner in which a

person lives and reflects a collection of choices

which that person makes. It has both a private and

a public dimension. Many lifestyle choices made

by a person are observable by other members of

society, by reference to how that person lives and

conducts himself or herself. The first enquiry of s

15(1)(b)(ii) may therefore also direct the attention

of the Board to a social perspective.

29. Section 15(1)(b)(ii), read with the s 3

definition of "gender characteristics", further

requires the Board to be satisfied that the person

has the physical characteristics "by virtue of

which a person is identified as male or female".

In resolving what is intended by this provision,

much turns upon the use of the word "identified".

The majority in the Court of Appeal appear to

have considered that it required the Board to

determine the extent to which a person had

assumed the characteristics of the opposite sex. In

the way in which that enquiry was approached, it

appears to have been assumed that there is some

point which is reached, in the transition, when a

person might be regarded as male not female or

female not male. That is not an approach that is

reflected in the provisions of the Act.

30. Martin CJ observed that the word "identified"

is used in s 3 in the definition of "reassignment

procedure" ("identified by a birth certificate") and

in the definition of "recognition certificate" ("that

identifies a person who has undergone a

reassignment procedure as being of the sex to

which the person has been reassigned").47

The

inference his Honour drew from the usage of the 47 The State of Western Australia v AH (2010) AMLC 30-

025 at 36,055 [93].

word "identified" was that it carried the

connotation of "established" or "accepted as".48

This suggests that an applicant for a recognition

certificate must have achieved the gender

characteristics of the opposite sex to a high

standard.

31. Section 14(1) cannot be taken to require a

particular level of success in achieving the gender

characteristics of the opposite sex. Such an

approach was considered in R v Harris49

[49], in

relation to a male to female transsexual.

However, as Lockhart J observed in SRA50

[50], a

male to female transsexual after surgery is no

longer a functional male, but a female to male

transsexual is in a different situation. Even

successful surgery cannot cause him to be a fully

functional male. An approach to the requirements

of s 15(1)(b)(ii) which has regard to the extent to

which a person obtains gender characteristics of

the gender to which they identify would therefore

operate differentially and unfairly. Such an affect

cannot be taken to have been intended in

legislation such as this, which is of a remedial

and beneficial kind.

32. It is also relevant that a surgical procedure to

alter the genitals or other gender characteristics is not

required of an applicant for a recognition certificate.

The definition of "reassignment procedure" refers to a

"medical or surgical procedure". A medical procedure

would include hormone therapy, such as that

undertaken by the appellants. As the Tribunal

observed51

, although surgery is a requirement of

legislation providing for recognition of gender

reassignment in other States, and it is evident that

Parliament was familiar with that legislation52

,

Parliament did not consider surgery to be a

48 The State of Western Australia v AH (2010) AMLC 30-

025 at 36,055 [94]. 49 (1988) 17 NSWLR 158. 50 Secretary, Department of Social Security v "SRA" [1993]

FCA 573; (1993) 43 FCR 299 at 326. 51 AB & AH v Gender Reassignment Board (WA) (2009) 65

SR(WA) 1 at 17 [117]. 52 Western Australia, Legislative Assembly, Parliamentary

Debates (Hansard), 9 April 1997 at 1360-1361.



necessary step in order to acquire the gender

characteristics by which a person is identified as

male or female. The options thus provided by

the Act do not lend support for a view that a

person must take all possible steps, including

with respect to their sexual organs, to become as

male or female as possible.

33. On one view the definition of "reassignment

procedure" might suggest a concern with the

result achieved by the surgical procedure. The

words "so that the person will be identified as a

person of the opposite sex" may be thought to

connote a level of certainty of identification as

male or female. However, s 14(1) and s

15(1)(b)(ii) may be read together in a more

harmonious way, by attributing the purposive

aspect of s 14(1) to the person.53

Section

14(1)may be understood to require that the person

undertakes a reassignment procedure with the

intention that he or she may be identified by

others as being of the gender to which he or she

seeks reassignment. Furthermore, s 14(1) requires

only that the medical or surgical

procedure alter the genitals and other gender

characteristics of a person. It does not require that

the person undertake every procedure to remove

every vestige of the gender which the person

denies, including all sexual organs.

34. Martin CJ accepted that it could not have

been intended that a person have all of the

physical characteristics of a person of the opposite

gender and held that the test must be one of

sufficiency.54

However, that leaves unanswered

the question – sufficient for what purpose? The

answer would appear to be social recognition.

The Act does not, by s 15(1)(b)(ii), contemplate

some abstract evaluation of maleness or

femaleness. Its objects suggest that the question

for the Board is to be approached from a social

perspective, which is to say, by reference to what 53 As Martin CJ observed in The State of Western Australia

v AH (2010) AMLC 30-025 at 36,054 [87]-[89]. 54 The State of Western Australia v AH (2010) AMLC 30-

025 at 36,056 [104].

other members of society would perceive the

person's gender to be. Such a perspective is

consistent with the objects of the Act, which are

to remove impediments to the way in which a

person lives within society. So long as the other

requirements of ss 14(1) and 15(1)(a) and (b) are

met it is intended that legal recognition be given

of the gender with which the person is identified

within society. Section 15(1)(b)(ii) is addressed

to that perspective. The question it raises is what

gender the person exhibits to other members of

society, by reference to the gender characteristics

they now have and to their lifestyle. That

conclusion would be reached by reference to the

person's appearance and behaviour, amongst

other things. It does not require detailed

knowledge of their bodily state.

35. The question whether a person is identified as

male or female, by reference to the person's physical

characteristics, is intended by the Act to be largely one

of social recognition. It is not intended to require an

evaluation by the Board of how much of a person's body

remains male or female. Rather, the Board is directed

by s 15(1)(b)(ii) to the question of how other members of

society would perceive the person, in their day-to-day

lives. Such a recognition does not require knowledge of a

person's remnant sexual organs. (emphases ours)

36. The concern of s 15(1)(b)(ii) may be taken to

be whether a transsexual person's appearance and

behaviour in the conduct of their life would be accepted

by other members of society as conforming to the

gender to which the person seeks reassignment. That is

what is intended by the phrase "is identified as

male or female" in the s 3 definition of "gender

characteristics". Such an understanding of the

operation of s 15(1)(b)(ii) is consistent with the

objects of the Act, which are to facilitate the

acceptance of a person, as being of the gender to

which they are reassigned, within society so that

they may fully participate within it. No point

would be served, and the objects of the Act would

not be met, by denying the recognition provided

by the Act to a person who is identified within

society as being of the gender to which they

believe they belong and otherwise fulfils the

requirements of the Act. (emphasis ours)



37. The objects of the Act bring to mind what

was said in SRA. Lockhart J there referred to what

had been said many years ago by a Swiss court on

the subject of post-operative transsexuals.55

Having observed that such a person's

psychological association with a sex is in such a

situation supported by anatomical changes, the

Court suggested that it is preferable to legally

recognise a state which the law did not prevent

from coming into existence. To do so, the Court

said, facilitates the person's social adaptation by

permitting the person to lead a more normal life

than before.

38. The Act contains no warrant for implying

further requirements, such as potential adverse social

consequences, to which the Board had regard, or

community standards and expectations, to which the

majority in the Court of Appeal referred. Such

considerations are quite different from the social

perspective mentioned above56

, which has regard

to the assessment made of the person by members

of society in everyday life. They involve matters

of policy and value judgments according to

which recognition should be given or refused.

Considerations of policy and an understanding of

the extent to which society is accepting of gender

reassignment are matters which may be taken to

have been considered when the Act was passed.

The Act reflects the policy decisions taken. The objectives of the Act, and their social and legal

consequences, are to be met by reference to its stated

requirements. Those requirements, including those of s

15(1)(b)(ii), are to be given a fair and liberal

interpretation in order that they achieve the Act's

beneficial purposes. (emphases ours)

39. The construction placed upon s 15(1)(b)(ii)

and the identification which is its concern, does

not mean that a recognition certificate is to be

provided based only upon a person's external

appearance, and that person's belief about his or

her gender. Section 14 must be satisfied before a

person can apply for a certificate. But that is the

only provision in the Act which requires a 55 Secretary, Department of Social Security v "SRA" [1993]

FCA 573; (1993) 43 FCR 299 at 317. 56 See [34] of these reasons.

surgical or other reassignment procedure. Once

that condition and those of s 15(1)(a)are met, the

Board is directed by s 15(1)(b) to other enquiries

relating to the person's perception of themselves

and to social perceptions about them. No further

consideration of the extent of the person's bodily

state is required.

40. No issue was taken on these appeals with the

conclusion reached by the Board and the Tribunal

as to the observable physical characteristics of

each of the appellants. Counsel for the State of

Western Australia accepted those findings to be

correct. It follows that each of the appellants

would be identified as having the gender

characteristics of a male.

41. In this Court the Board was joined as the

second respondent to each appeal but entered a

submitting appearance. The opposition to the

appeals was presented by the first respondent, the

State of Western Australia. The Australian

Human Rights Commission was granted leave to

intervene.

42. As indicated earlier in these reasons,57

each

appeal should be allowed, the orders of the Court

of Appeal set aside, and in place thereof the

appeals from the Tribunal should be dismissed.

This will have the effect of reinstating the orders

of the Tribunal. The Court of Appeal made no

costs order. The appellants seek and should have

orders against the State for their costs in this

Court.

* * * * *

57 See [13] of these reasons.

PLEASE NOTE

We are bringing out an October Revolution

special issue in November 2011 merging issues

Nos. 21 and 22 of the journal and for publication in

it we hereby request scholarly articles on any aspect

of socialism/social welfare under Indian conditions,

preferably with comparative study, to be sent to

reach us on or before 31 October 2011. - IMS, Editor.

LAW ANIMATED WORLD, 6-3-1243/156, M.S. Makta,

Opposite Raj Bhavan, HYDERABAD - 500 082.

Ph: 040 - 23300284; E-mail: [email protected]

230 Lithgow City Council v. Jackson [AUS-HC] (2011) 2 LAW


(2011) 2 LAW 230 (AUS-SC)

HIGH COURT OF

AUSTRALIA AT CANBERRA

Matter No. S66/2011

Wednesday, 28 September 2011

Between:

Lithgow City Council … Appellant

v.

Craig William Jackson … Respondent.

Citation:

Lithgow City Council v. Jackson*

(2011) 2 LAW 230; [2011] HCA 36

Date: 28-09-2011 Matter no. S66/2011

* * *

FRENCH CJ,

GUMMOW, HEYDON,

CRENNAN AND BELL JJ

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal

of the Supreme Court of New South Wales

dated 11 June 2010 and in its place order

that:

(a) the appeal to that Court be dismissed

with costs, including costs of and

incidental to the first appeal to that

Court (40614 of 2007); and

(b) the respondent, Craig William Jackson,

pay the costs of the appellant, Lithgow

City Council, of the special leave

application to the High Court of

Australia in the matter S569/2008.

3. The respondent pay the appellant's costs in

this Court.

On appeal from the Supreme Court of

New South Wales

* Courtesy: High Court of Australia at URL: http://www.

austlii.edu.au/au/cases/cth/HCA/2011/9.html. Notice: This

copy of the Court's Reasons for Judgment is subject to

formal revision prior to publication in Commonwealth

Law Reports. Emphases in bold ours - IMS.

Representation

S R Donaldson SC with S E McCarthy

for the appellant (instructed by DLA Piper Australia)

A S Morrison SC with D W Elliott

for the respondent (instructed by Gerard Malouf & Partners)

* * *

CATCHWORDS

Lithgow City Council v Jackson

Evidence – Admissibility – Opinion evidence –

Section 78 of Evidence Act 1995 (NSW) ("Act")

provided that rule excluding evidence of opinion does

not apply where "opinion is based on what the person

saw, heard or otherwise perceived about a matter or

event" and evidence "is necessary to obtain an

adequate account or understanding of the person's

perception of the matter or event" – Respondent found

unconscious and injured in drain – Respondent

conceded appellant only liable if respondent fell from

vertical retaining wall – Ambulance record contained

representation "? Fall from 1.5 metres onto concrete"

– Whether representation was admissible under s

78 of Act as opinion that respondent fell from vertical

retaining wall.

Evidence – Admissibility – Hearsay evidence –

Business records exception under s 69 of Act –

Representation was hearsay evidence in business

record – Whether representation must also comply

with s 78.

Negligence – Causation – Whether circumstantial

inferences sufficient to establish causation.

Evidence Act 1995 (NSW), ss 69, 78.

* * *

ORDER

1. FRENCH CJ, HEYDON, AND BELL JJ: This

is an appeal from the second of two decisions of

the Court of Appeal of the Supreme Court of

New South Wales. It raises two groups of

difficult issues in relation to the law of evidence.

The first concerns the reception of lay opinion

evidence in business records. The second

concerns the use of circumstantial inference to

establish causation.

THE FACTS IN OUTLINE:

2. On 18 July 2002, the respondent, Craig

William Jackson, was living at 7 Andrew Street,

(2011) 2 LAW Lithgow City Council v. Jackson [AUS-HC] 231


Lithgow with Naomi Spurling. He was 26 years

old.

3. At about 3.30am on 18 July 2002, the

respondent left home after an argument with

Naomi Spurling. The trial judge found, after

analysing conflicting evidence, that the

respondent was “at least moderately intoxicated.”

He was accompanied by his two dogs, found by

the trial judge to be "large" and "fierce".

4. Not far from the respondent's home to the

southeast was an area of parkland called

Endeavour Park. Endeavour Park was bounded

by the Great Western Highway and Amiens

Street. The park sloped generally downward from

the Great Western Highway to Amiens Street in a

roughly east-west direction. There was a large,

shallow concrete drain which ran in the same

east-west downhill direction at the Amiens Street

end of the park. At the western end the drain had

a vertical face topped by a small retaining wall

projecting at different points between 90 and

280mm from the grass, partially concealed by

foliage. The distance from the top to the bottom

of the vertical face was 1.41m. In contrast, the

northern and southern sides were not vertical but

sloped down, although the distance from top to

bottom was approximately the same.

5. Shortly before 6.57am the respondent was

found lying badly injured in the drain. There was

a pool of dried blood and urine 2.69m from the

vertical face. Two dog leads were found near the

respondent. The two dogs, with the fidelity which

is proverbially attributed to those creatures, were

at their master's side, and indeed their ferocious

expressions of loyalty hampered attempts to give

him aid.

6. The plaintiff's case as opened at the trial and as

presented in the appeal to this Court was that he

fell by tripping from the small retaining wall at

the top of the western vertical face of the drain,

not from one of the sides. The respondent

concedes that if he failed to establish that, his

entire case would fail. It is not now in dispute that

the respondent's injuries were caused by falling

either from one of the sides or from the western

vertical face of the drain. Other possibilities

ventilated at the trial, such as an attack by another

person, were not pressed in this Court.

7. The respondent's injuries deprived him of

recollection of how he came to be injured. This

creates a serious obstacle in his path. A further

obstacle in his path is created by the absence of

any other evidence on that subject, apart from

that already indicated, save a statement in a

record of the Ambulance Service of New South

Wales made by an ambulance officer or officers

summoned to assist the respondent. The

statement, which appeared among various

representations on a different subject, namely the

respondent's injuries, was: "? Fall from 1.5 metres

onto concrete" ("the impugned representation").

The respondent contends that the impugned

representation establishes that he fell from the

vertical face of the drain.

The trial judge

8. At the trial the District Court of New South

Wales (Ainslie-Wallace DCJ) found that the

appellant owed the respondent a duty of care. She

found that the appellant was in breach of it in

having failed to take steps to avoid the risk of

injury, such as erecting a fence above the western

vertical face. She found that the risk posed by the

small wall at the top of the western vertical face

of the drain would have been obvious to any

person taking care for his or her safety while

walking towards it through Endeavour Park in

daylight. But she found that the risk was not

obvious at night because the wall and drain were

not readily apparent at night. She found that a

sober person walking through Endeavour Park at

night and taking reasonable care for his or her

own safety would not have seen the wall and

recognised that it represented a drop on the other

side. These findings are not now controversial.

What is controversial is her finding that the

respondent had not established whether his

injuries were caused by the appellant's breach of

duty, because he had not established that he had

fallen over the western vertical face after walking

over it as distinct from stumbling down one of the



sloping sides, or standing at the top of the

northern vertical face and losing his balance.1 She

also found that there was no evidence which

would permit a finding that the respondent fell

into the drain in darkness rather than in daylight.

This latter finding was subjected to damaging

criticism in both decisions of the Court of Appeal

and was not supported by the appellant in this

Court.

9. The trial judge did not refer to the impugned

representation. That is probably because she had

ruled, after admitting into evidence (without

objection) the records of the Ambulance Service

in which it appeared, that the impugned

representation not be used as evidence of the truth

of its contents.2 Since there was no relevant use

of the impugned representation other than as

evidence of the truth of its contents, the trial

judge's ruling amounted to a rejection of it.

The legislative provisions

10. To understand the course of the proceedings

thereafter it is necessary to bear in mind some

relevant provisions of the Evidence Act 1995

(NSW) ("the Act"). Section 55(1) provides:

“The evidence that is relevant in a proceeding is

evidence that, if it were accepted, could

rationally affect (directly or indirectly) the

assessment of the probability of the existence of

a fact in issue in the proceeding.”

Section 56(1) provides:

“Except as otherwise provided by this Act,

evidence that is relevant in a proceeding is

admissible in the proceeding.”

1 The theory that the respondent lost his balance while

standing at the top of the western vertical face was not

supported in this Court. It is difficult to reconcile with the

location of the pool of bodily fluids 2.69m away from the

vertical face, as Basten JA pointed out in the second

Court of Appeal judgment. 2 The applicant's application had in fact been for an order

under s 136 of the Evidence Act 1995 (NSW) which

provides: "The court may limit the use to be made of

evidence if there is a danger that a particular use of the

evidence might: (a) be unfairly prejudicial to a party, or

(b) be misleading or confusing."

Section 76(1) provides:

"Evidence of an opinion is not admissible to

prove the existence of a fact about the existence

of which the opinion was expressed."

Thus s 76(1) creates an exclusionary rule and s

78 creates an exception to it. Section 78 provides:

“The opinion rule does not apply to evidence of

an opinion expressed by a person if:

(a) the opinion is based on what the person

saw, heard or otherwise perceived about a

matter or event, and

(b) evidence of the opinion is necessary to

obtain an adequate account or

understanding of the person's perception of

the matter or event.”

Section 79 creates another exception for expert

opinion evidence. Its details are immaterial since

it was not submitted that the ambulance officers

were experts. The word "opinion" is not defined

in the Act. It is commonly taken to mean (and the

parties accepted this definition as sufficient for

present purposes) "an inference from observed

and communicable data".3 Basten JA challenged

the utility in that definition of the words "and

communicable", but nothing was made of this in

argument in this Court.

The first Court of Appeal decision

11. The respondent appealed to the Court of

Appeal. The amended notice of appeal made no

specific complaint about the trial judge's failure to refer

to the impugned representation. However, in the

course of submissions the Court of Appeal

(Allsop P, Basten JA and Grove J) concentrated

on the impugned representation. They saw the

impugned representation as "crucial".4 They read

it as an opinion, admissible under s 78 of the Act,

that the respondent had fallen over the wall above

3 Allstate Life Insurance Co v Australia and New Zealand

Banking Group Ltd (No 5) (1996) 64 FCR 73 at 75. See

also Guide Dog Owners' & Friends' Association Inc v

Guide Dog Association of New South Wales & ACT

[1998] FCA 480; (1998) 154 ALR 527 at 532. 4 Jackson v Lithgow City Council [2008] NSWCA 312;

(2008) Aust Torts Reports 81-981 at 62,465 [34].



the western vertical face.5 They found that the

evidence apart from the impugned representation

would not have established that the accident

happened in the way for which the respondent

contended. But they found that when it was taken

with the impugned representation it did.

The first decision of this Court

12. The appellant sought special leave to appeal

to this Court. It emerged that the Court of Appeal

had assumed that there was no question mark at

the start of the impugned representation. The

Court of Appeal had been misled into that

assumption because the appeal books which the

parties had prepared for the appeal to that Court

had been defective in truncating the question

mark. This Court granted special leave, allowed

the appeal and remitted the matter for further

hearing in the light of the accurate trial record.

The second Court of Appeal decision

13. In the second Court of Appeal decision,

Allsop P and Grove J, after construing the

impugned representation as a "less positive" but

admissible opinion, adhered to their original

conclusion that the respondent had proved

causation.6 Basten JA agreed on the admissibility

question for somewhat different reasons.7 He also

held that even without the impugned

representation the evidence established a

conclusion of causation but that the impugned

representation confirmed that conclusion.8

The issues in this Court

14. By that unusual route two issues are

presented in this Court. The first is whether the

Court of Appeal in its second decision was correct to

hold that the impugned representation was admissible.

The second is whether, even if it were incorrect, the

5 Jackson v Lithgow City Council [2008] NSWCA 312; (2008)

Aust Torts Reports 81-981 at 62,465-62,468 [34]-[56]. 6 Jackson v Lithgow City Council [2010] NSWCA

136 at [20]-[36]. 7 Jackson v Lithgow City Council [2010] NSWCA

136 at [51]-[76]. 8 Jackson v Lithgow City Council [2010] NSWCA

136 at [77]-[106].

conclusion that causation is established can be

supported, as Basten JA held, by other evidence.

Although the parties did not approach the matter

in this way, there is also potentially a third issue:

even if the impugned representation is admissible, does

it, taken with other evidence, establish causation? That

is a potential issue because, even if the impugned

representation is admissible, its probative value is

highly questionable for reasons which will be

seen below. But since both of the first two

questions should be answered in the negative for

reasons stated below, the third question does not

arise.

The context of the impugned representation

15. The document recording the impugned

representation was a "Patient Healthcare Record".

It was a form divided into various parts. In the

part headed "Chief Complaint" appeared the

following words, as transcribed by Allsop P:

“Decreased level of consciousness

OE pt responding to painful stimuli, haematoma

To RI abrasions to face & haemorrhage

[Indistinct] nose. Extremities cold to touch, trunk

[indistinct]

Pt combative throughout [Rx or Pt] incontinent

of urine.”

In the part headed "Patient History" appeared the

words:

“Found by bystanders — parkland

? Fall from 1.5 metres onto concrete

No other Hx.”

"Hx" means "history".

16. The document was signed by two persons, J

Goodwin (described as driving) and M Penney

(described as officer treating). Neither gave

evidence at the trial. There was no evidence as to

their health or whereabouts at the time of the trial

or as to their capacity to give evidence at the trial.

There was no evidence about whether the

impugned representation was made by both, or by

only one, and if so, which. However, below it

will be assumed that it was made by both. Nor

was there evidence about whether the impugned

representation was based on something the

makers of the statement had been told, or on a



matter from which the makers drew an inference,

and, if so, what that matter was. The Court of

Appeal, however, took the view that there was no

reason to infer that the impugned representation

was a conclusion from what bystanders had said.

In their opinion it was a conclusion from what the

ambulance officers could perceive.

The problem of admissibility under s 69

17. The onus of demonstrating the conditions of

admissibility of evidence under the Act lies on

the tendering party. In the present case the

respondent had to demonstrate that the impugned

representation fell within the exclusion created

by s 78 from the inadmissibility generally

applying to opinions by reason of s 76(1). But the

impugned representation was also hearsay. The

"hearsay rule" is defined in the Dictionary as

meaning s 59(1). Section 59(1) provides:

“Evidence of a previous representation made

by a person is not admissible to prove the

existence of a fact that it can reasonably be

supposed that the person intended to assert by

the representation.”

Section 59(2) provides: "Such a fact is in this Part

[Pt 3.2] referred to as an asserted fact" (emphasis

in original). But s 69 creates an exception to the

hearsay rule in relation to business records. The

parties did not dispute the proposition that the

"Patient Healthcare Record" in which the

impugned representation appeared was a business

record for the purposes of s 69. But s 69 does not

render business records as such admissible. It

concerns representations in a document which is

or forms part of a business record within the

meaning of s 69(1). The representations are

admissible if s 69(2) is satisfied. Section 69(2)

provides:

“The hearsay rule does not apply to the

document (so far as it contains the

representation) if the representation was made:

(a) by a person who had or might reasonably

be supposed to have had personal

knowledge of the asserted fact, or

(b) on the basis of information directly or

indirectly supplied by a person who had or

might reasonably be supposed to have had

personal knowledge of the asserted fact.”♦

♦ It seems Indian law, especially the Indian Evidence Act,

only speaks of the relevance and admissibility of oral and

documentary evidence according to the practice of which

hearsay evidence is considered absolutely inadmissible,

but there appears to be no specific reference to the word

‘hearsay’ in the statutes. In a recent Supreme Court

decision in Kalyan Kumar Gogoi v. Ashuthosh Agnihotri

& Anr., dated 18-01-2011 in Civil Appeal No. 4820 of

2007, Justice J.M. Panchal made the following pithy and

profound observations on this matter: [IMS]

“18.The word ‘evidence’ is used in common parlance in

three different senses: (a) as equivalent to relevant (b) as

equivalent to proof and (c) as equivalent to the material, on

the basis of which courts come to a conclusion about the

existence or non-existence of disputed facts. Though, in the

definition of the word "evidence" given in Section 3 of the

Evidence Act one finds only oral and documentary

evidence, this word is also used in phrases such as: best

evidence, circumstantial evidence, corroborative evidence,

derivative evidence, direct evidence, documentary evidence,

hearsay evidence, indirect evidence, oral evidence, original

evidence, presumptive evidence, primary evidence, real

evidence, secondary evidence, substantive evidence,

testimonial evidence, etc. The idea of best evidence is

implicit in the Evidence Act. Evidence under the Act,

consists of statements made by a witness or contained in a

document. If it is a case of oral evidence, the Act requires

that only that person who has actually perceived something

by that sense, by which it is capable of perception, should

make the statement about it and no one else. If it is

documentary evidence, the Evidence Act requires that

ordinarily the original should be produced, because a copy

may contain omissions or mistakes of a deliberate or

accidental nature. These principles are expressed in Sections

60 and 64 of the Evidence Act.

19. The term `hearsay' is used with reference to what is

done or written as well as to what is spoken and in its legal

sense, it denotes that kind of evidence which does not

derive its value solely from the credit given to the witness

himself, but which rests also, in part, on the veracity and

competence of some other person. The word `hearsay' is

used in various senses. Sometimes it means whatever a

person is heard to say. Sometimes it means whatever a

person declares on information given by someone else and

sometimes it is treated as nearly synonymous with

irrelevant. The sayings and doings of third person are, as a

rule, irrelevant, so that no proof of them can be admitted.

Every act done or spoken which is relevant on any ground

must be proved by someone who saw it with his own eyes

and heard it with his own ears.

20.The argument that the rule of appreciation of hearsay

evidence would not apply to determination of the question

whether change of venue of polling station has materially

affected the result of the election of the returned candidate,

cannot be accepted …….



What is the "asserted fact"? If the "asserted fact" is

"the respondent fell 1.5 metres onto concrete", at

once a difficulty arises which was not debated by

the parties. Section 69(2)(a) cannot apply, because

the makers of the representation, the ambulance

officers, did not have personal knowledge of a fall

of 1.5m onto concrete, and could not reasonably be

supposed to have had it, since the fall had happened

some time before they arrived. And s

69(2)(b) cannot apply, because even if it were the

case that the ambulance officers were told by

bystanders that the respondent fell in that fashion,

the bystanders did not have personal knowledge of

the fall, and could not reasonably be supposed to

21. Here comes the rule of appreciation of hearsay evidence.

Hearsay evidence is excluded on the ground that it is always

desirable, in the interest of justice, to get the person, whose

statement is relied upon, into court for his examination in

the regular way, in order that many possible sources of

inaccuracy and untrustworthiness can be brought to light

and exposed, if they exist, by the test of cross- examination.

The phrase "hearsay evidence" is not used in the Evidence Act

because it is inaccurate and vague. It is a fundamental rule of

evidence under the Indian Law that hearsay evidence is

inadmissible. A statement, oral or written, made otherwise

than a witness in giving evidence and a statement contained

or recorded in any book, document or record whatever,

proof of which is not admitted on other grounds, are

deemed to be irrelevant for the purpose of proving the truth

of the matter stated. An assertion other than one made by a

person while giving oral evidence in the proceedings is

inadmissible as evidence of any fact asserted. That this

species of evidence cannot be tested by cross-examination and

that, in many cases, it supposes some better testimony which

ought to be offered in a particular case, are not the sole grounds

for its exclusion. Its tendency to protract legal investigations to

an embarrassing and dangerous length, its intrinsic weakness,

its incompetency to satisfy the mind of a Judge about the

existence of a fact, and the fraud which may be practiced with

impunity, under its cover, combine to support the rule that

hearsay evidence is inadmissible. (emphases ours)

22. The reasons why hearsay evidence is not received as

relevant evidence are: (a) the person giving such evidence

does not feel any responsibility. The law requires all

evidence to be given under personal responsibility, i.e.,

every witness must give his testimony, under such

circumstance, as expose[s] him to all the penalties of

falsehood. If the person giving hearsay evidence is

cornered, he has a line of escape by saying "I do not know,

but so and so told me", (b) truth is diluted and diminished

with each repetition and (c) if permitted, gives ample scope

for playing fraud by saying "someone told me that...........".

It would be attaching importance to false rumour flying

from one foul lip to another. Thus statement of witnesses

based on information received from others is inadmissible.”

have had it: again, the fall took place before the

bystanders arrived. The problem may be reduced by

the approach adopted by the majority of the Court

of Appeal: they saw the impugned representation as

a representation that there was a question whether

the respondent had fallen 1.5m onto concrete. And

the problem may be completely overcome if "asserted fact"

in s 69 includes an opinion in relation to a matter of fact.

There is authority that it does.9 But the construction of

"asserted fact" to include an opinion in relation to a matter of

fact, though convenient, is a little strained. In one sense

every person who holds an opinion has personal

knowledge of it, and indeed is the only person to

have personal knowledge of that person's opinion.

But to hold an opinion that the respondent fell in a

certain way (or that there is a question about it) is

different from having personal knowledge that he

fell in that way (or that there is a question about it):

that personal knowledge could normally only be

derived from seeing or perhaps hearing the event,

not by drawing inferences from other circumstances

observed some time later. However, it was not

argued in this Court that the authorities which state

that "asserted fact" includes an opinion in relation

to a matter of fact are wrong. It is not necessary

further to deal with this point, which the parties did

not debate at any stage. That is because, even if it is

assumed that the s 69 difficulty does not exist, the evidence

must be held inadmissible on other grounds. (emphases ours)

Must a statement of lay opinion in a

business record comply with s 78?

18. There is another question not debated in the

courts below. It was, however, adverted to by

Basten JA in the second Court of Appeal decision

and briefly debated by the parties in this Court. The

question is whether a statement of opinion in a

business record has to comply with ss 76-79. There

is authority that it does not have to, ie that ss 76-

79 apply only to evidence of opinions given by

9 Ringrow Pty Ltd v BP Australia Ltd [2003] FCA 933;

(2003) 130 FCR 569 at 573 [18]; Australian Securities

and Investments Commission v Rich[2005] NSWSC 417;

(2005) 216 ALR 320 at 366-367 [206]- [207]. See also

Connex Group Australia Pty Ltd v Butt [2004] NSWSC

379 at [3](document admissible under hearsay exception

created by s 64(3) of the Act).


Law Animated World, 15 October 2011 22 (Go to p. 55→)

witnesses in court.10 If not, and subject to the s

69 problem just discussed, the impugned

representation was admissible. However, Basten JA

doubted the "statutory basis" for the conclusion

that ss 76-79 apply only to evidence of opinions

given by witnesses in court.

19. There are strong textual reasons supporting

Basten JA's doubts and indicating that the

conclusion is not merely to be doubted, but is

wrong. Section 69 is in Pt 3.2 of the Act. Sections

76-79 are in Pt 3.3. Section 56(1)11 contemplates

that relevant, ie otherwise admissible, evidence may

be excluded by more than one exclusionary rule

in Pts 3.2-3.11. One exclusionary rule is the hearsay

rule. If evidence satisfies s 69, then by s 69(2) the

hearsay rule does not apply. But s 69(2) does not

provide that the evidence is admissible. It is only

admissible if no other exclusionary rule

applies. Section 76 excludes "[e]vidence of an

opinion" – not "evidence by a witness of an

opinion". There is no indication in any other

provision in Pt 3.3 that it operates only in relation to

the opinions of witnesses.

20. The respondent resisted the conclusion that

ss 76-79 applied to hearsay evidence to which the

hearsay rule does not apply, such as business

records, by relying on two groups of arguments.

21. The first turned on the difficulties of complying

with ss 78 and 79. The respondent had in mind that,

while these difficulties can be met where evidence

is received through witnesses by careful preparation

and by the precise formulation of questions, they

cannot be met in relation to hearsay representations

like those in a business record. That is because the

makers of hearsay representations do not

contemplate the need to comply with the rules

regarding the mode of expression of opinion

evidence in future litigation. Any deficiencies in

hearsay representations, unlike those in testimony,

are immutable and incapable of correction. The 10 Australian Securities and Investments Commission v Rich

[2005] NSWSC 417; (2005) 216 ALR 320 at 367-369

[208]-[218]; leave to appeal refused in Rich v Australian

Securities and Investments Commission [2005] NSWCA

233; (2005) 54 ACSR 365 at 367 [17]. 11 See above at [10].

answer to this submission is that the evils of

opinion evidence which have resulted in its

prohibition by s 76(1) unless there is compliance

with the specific requirements of ss 77-79 are just

as great when the evidence appears in hearsay

representations as when it is given through witness

testimony. If opinion evidence which was inadmissible

when elicited through questions to a witness were

admissible if it appeared in a hearsay representation, a

bizarre premium would be placed on calling hearsay

evidence in preference to direct evidence. If there are

inconveniences, they are necessary inconveniences,

and they are not so acute as to compel a

construction to the contrary of what the clear words

suggest. (emphasis ours)

22. The second group of arguments advanced by

the respondent turned on s 60 in its form at the time

of the trial. It provided:

“The hearsay rule does not apply to evidence of a

previous representation that is admitted because

it is relevant for a purpose other than proof of the

fact intended to be asserted by the

representation.”12

The respondent submitted that this provision would

be inconsistent with the application of s 78 to

business records, but it did not explain why, and its

reference to the Australian Law Reform

Commission13 did not explain why either. Section

60 in its old form provided in effect that hearsay

evidence admitted for one non-testimonial purpose

may be used for a testimonial purpose despite its

hearsay character. The submission begged the

question of whether the evidence had been or could

be admitted for a non-testimonial purpose: the

reception of the evidence under s 69 meant only

12

Section 60 now provides:

“(1) The hearsay rule does not apply to evidence of a

previous representation that is admitted because it is

relevant for a purpose other than proof of an asserted

fact.

(2) This section applies whether or not the person who

made the representation had personal knowledge of

the asserted fact (within the meaning of subsection

62(2)).

(3) However, this section does not apply in a criminal

proceeding to evidence of an admission.” 13 Australia, The Law Reform Commission, Evidence,

Report No 38, (1987) at 79-80 [144].

(2011) 2 LAW Royal Archid Hotels & Anr. v. Jayarama Reddy & Ors. (IND-SC) ISC-177


(2011) 2 LAW ISC-177

SUPREME COURT OF INDIA

AT NEW DELHI

Civil Appellate Jurisdiction

Civil Appeal No. 7588 of 2005

Date of Judgment♦♦♦♦: Thursday, 29 September 2011

M/s Royal Orchid Hotels Ltd.

and another. … Appellant (s)

Versus

G. Jayarama Reddy & Ors. … Respondents.

With

CIVIL APPEAL NO.7589 OF 2005

Karnataka State Tourism

Development Corporation … Appellant

Versus

G. Jayarama Reddy and others … Respondents.

Citation: (2011) 2 LAW ISC-177

CORAM:

G.S. SINGHVI, J.

Sudhansu Jyoti Mukhopadhyaya, J.

For Appellant (s): Mr. Rajesh Mahale, Advocate

Mr. A.S. Bhasme, Advocate.

For Respondent (s): Mr. G.V. Chandrashekar, Advt.

Mr. P.P. Singh, Advocate.

* * * Head note:

Civil Law – Land acquisition – can and must only be for a

public purpose – In case of failure to use for the specified

public purpose, may be utilized for any other useful public

purpose – but diversification for a private purpose by way

of sale/lease to private persons clearly a fraudulent exercise

of power – so illegal and liable to be set aside – In exercise of its power of eminent domain, the State can compulsorily acquire land of the private persons but this cannot be over-stretched to legitimize a patently illegal and fraudulent exercise undertaken for depriving the landowners of their constitutional right to property with a view to favour private persons. …… In the instant case, the diversification of the ♦ Courtesy: Supreme Court at http://judis.nic.in/. Emphases

in bold ours - IMS.

purpose for which land was acquired under S. 4(1) r/w S. 6 of the Land Acquisition Act, clearly amounted to a fraud on the power of eminent domain. Hence, the appeals are dismissed; Respondent No.1 shall, if not already done, fulfill his obligation [to return

compensation money with interest] within a period of 8 weeks from today and the appellant shall fulfil their obligation, i.e. return of land to R-1 within next 8 weeks. - Paras 26-28, p. ISC-191.

Constitutional law – writ jurisdiction – no limitation for

filing writs but self-imposed restraint by superior courts

not to entertain petitions with unreasonable delays/

laches – Our constitution-framers have not prescribed any period of limitation for filing a petition under Article 226 of the Constitution of India and the power conferred upon the High Court to issue … directions, orders or writs … is not hedged with any condition or constraint; but … the superior Courts have evolved several rules of self-imposed restraint including the one that the High Court may not enquire into belated or stale claim, and deny relief if petitioner is guilty of laches. The principle underlying is … one who is not vigilant and does not seek intervention of the Court within reasonable time… is not entitled to relief under Article 226. Another reason for refusal … is: during the intervening period rights of third parties may have crystallized and it will be inequitable to disturb those rights…. But, no hard and fast rule can be laid down, no straightjacket formula can be evolved for deciding the question of delay/laches; each case to be decided on its own facts. - Para 17, p. ISC-187.

* * *

J U D G M E N T

G.S. SINGHVI, J.

1. Whether land acquired by the State Government at the instance of the Karnataka State Tourism Development Corporation (for short, ‘the Corporation’) for the specified purpose i.e. Golf-cum-Hotel Resort near Bangalore Airport, Bangalore could be transferred by the Corporation to a private individual and corporate entities is the question which arises for determination in these appeals filed against the judgment of the Karnataka High Court whereby the acquisition of land measuring 1 acre 3 guntas comprised in Survey No.122 of Kodihalli village, Bangalore South Taluk was quashed.

ISC-178 Royal Archid Hotels & Anr. v. Jayarama Reddy & Ors. (IND-SC) (2011) 2 LAW


The facts relating to the acquisition of land

and details of the 3 cases decided by the

High Court in 1991:

2. On a requisition sent by the Corporation, the State Government issued notification dated 29.12.1981 under Section 4(1) of the Land Acquisition Act, 1894 (for short, ‘the Act’) for the acquisition of 39 acres 27 guntas land comprised in various survey numbers including Survey No.122 of Kodihalli and Challaghatta villages, Bangalore South Taluk. After considering the reports submitted by the Special Deputy Commissioner, Bangalore under Section 5A(2) and Section 6(1A) (added by the Karnataka Act No.17 of 1961), the State Government issued declaration under Section 6 in respect of 37 acres 4 guntas land. A combined reading of the two notifications makes it clear that the public purpose for which land was sought to be acquired was to establish Golf-cum-Hotel Resort near Bangalore Airport, Bangalore by the Corporation. The Special Land Acquisition Officer passed award dated 7.4.1986. However, as will be seen hereinafter, instead of utilizing the acquired land for the purpose specified in the notifications or for any other public purpose, the Corporation transferred the same to private parties.

3. One Dayananda Pai, a real estate developer, who is said to have entered into agreements with the landowners for purchase of land comprised in Survey Nos.160/1, 160/2, 160/3, 160/4, 163/1, 163/2, 164/1, 164/2, 165/1, 165/2, 165/3, 165/4, 165/6, 166/1, 166/2, 166/3, 166/4, 153, 159, 167 for putting up a group housing scheme and obtained approval from the Bangalore Development Authority appears to be the person behind the move made by the Corporation for the acquisition of land for execution of tourism related projects including Golf-cum-Hotel Resort. This is the reason why his role prominently figured in the meeting of senior officers of the Bangalore Development Authority and the Corporation held on 13.1.1987 to discuss the steps to be taken for securing possession of the acquired land. In that meeting, Managing Director of the Corporation gave out that the

Corporation does not have necessary finances for deposit of cost of the acquisition and Dayananda Pai had agreed to provide funds subject to the furnishing of bank guarantee by the Deputy Commissioner on behalf of the Corporation and release of 12 acres 34 guntas in his favour for the purpose of implementing the group housing scheme. In furtherance of the decision taken in that meeting, an agreement dated 8.5.1987 was executed by the Corporation in favour of Dayananda Pai conveying him 12 acres 34 guntas of the acquired land. Likewise, 6 acres 8 guntas land was transferred to Bangalore International Centre and 5 acres including 2 acres 30 guntas land belonging to respondent No.1 and his brothers, G. Ramaiah Reddy and G. Nagaraja Reddy, was leased out to M/s. Universal Resorts Limited (predecessor of appellant No.1 in Civil Appeal No.7588 of 2005).

4. Mrs. Behroze Ramyar Batha and others, who owned different parcels of land which were transferred by the Corporation to Dayananda Pai filed writ petitions questioning the acquisition proceedings. The learned Single Judge dismissed the writ petitions on the ground of delay. The Division Bench of the High Court reversed the order of the learned Single Judge and quashed the acquisition proceedings qua land of the appellants in those cases. The Division Bench referred to the minutes of the meeting held on 13.1.1987, resolution dated 10.9.1987 passed by the Corporation and observed:

“……We have made our comments then and there. Nevertheless we cannot refrain our feelings in commenting upon the same once over again. We cannot think of anything more despicable than the candid admission by the Tourism Development Corporation that they did not have the necessary funds required to meet the cost of acquisition. If really there was no amount available, how the acquisition was embarked upon, we are left to the realm of guess. Not only that, this particular resolution makes it appear that respondent-5 Dayanand Pai was the only saviour of the Karnataka State Tourism Development Corporation from the difficult situation. For our part we do not know what



exactly was the difficulty then, Land acquisition proceedings were complete in all material respects. All that required was possession to be taken. Merely because there are Writ Petitions or some cases pending, does it mean that the Tourism Development Corporation must plead helplessness? Does not it have the wherewithal to contest these litigations? Is it not a part of the Government although it be a Corporation? What is it that it wants to do? In consideration of the withdrawal of the cases which were thorns in the flesh of the Tourist Development Corporation, he is given of a silver salver an extent of 12 acres 31 guntas of land. To say the least, it appears right

from the beginning respondent-5 Dayananda Pai had

an eye on these lands. That would be evident because

though he entered into an agreement on 30-9-1981

with the land-owners it never occurred to him to put

forth any objection during Section 5A Enquiry, nor

again at any point of time did he take any interest. He

was patiently waiting for somebody to take chestnuts

out of the fire so that he could have the fruits thereof.

That is also evident from the Resolution dated 13-1-

1987 wherein it is stated as under:

"Sri Dayananda Pai was very particular that the

block of land comprising of 12 acres 34 guntas

comprising the following Sy.Nos. 160/1, 160/2, 160/3,

160/4, 163/1, 163/2, 164/1, 164/2, 165/1, 165/2, 165/3,

165/4, 165/6, 166/1, 166/2, 166/3, 166/4, 153, 159, 167

should be released to him as he has got a firm

commitment for putting up a Group Housing

Scheme on this land."

Yes. He might have had a commitment. What then is the purpose of eminent domain? Eminent domain, as we consider and as it is settled law as was said by Nichols, is an attribute of sovereignty. Where the Deputy Commissioner is convinced that the lands are to be acquired for a public purpose notwithstanding the fact that the rights of the private parties might be interfered with, the acquisition will have to be gone through. In other words, the private purpose must be subservient to public purpose. Forget all that. In order to enable Dayananda Pai to fulfil his

commitment if valuable portion of the lands acquired

viz., 12 acres 31 guntas is transferred in his favour we

cannot find a more vivid case of fraud on power than

this. We hold so because the apparent object as

evidenced by Section 4(1) Notification is a public

purpose. If really as was sought to be made out by the

Resolution dated 13-1-1987 the Tourism

Development Corporation was anxious to have these

lands and the delay was telling upon it, certainly

selling away the lands is not the solution as we could

see. Therefore, there has been a clear diversification

of purpose. Not only an extent of 12 acres 31 guntas

have been sold away in favour of respondent-5

Dayanand Pai as has been noted in the narration of

facts, 8 acres had come to be leased for Bangalore

International Centre and another 5 acres had come to

be leased for the amusement park. Why all these if

the Tourism Development Corporation does not have

funds to meet the cost of acquisition? Therefore it

appears to us this is nothing more than a conspiracy

to deprive the owners of the lands by use of the power

of the eminent domain which is to be used for an

avowedly public purpose and for strong compelling

reasons and not whimsically or to satisfy the private

needs of an individual.” (emphasis supplied by SC)

The Division Bench then referred to some judicial precedents including the judgment in Industrial Development & Investment Company

Private Limited v. State of Maharashtra, AIR 1989 Bombay 156 and observed:

“……But, in the case on hand what is most striking is negotiations took place even before taking possession of lands. On 8-5-1987 agreement was entered into and in the wake of taking possession on 12-11-1987, transfers are made on 23-3-1988 and 24-3-1988. This is where we consider that with the motive of securing lands to respondent-5 Dayanand Pai, acquisition had come to be embarked upon. This was the reason why we conclude that this is a case of fraudulent exercise of power. It is no consolation to say that the owners of lands have accepted the compensation because in Industrial

Development & Investment Co. Pvt. Ltd. v. State of Maharashtra it is stated thus:

“...The State itself which has acted illegally and without jurisdiction cannot plead that it should be allowed to retain the sum awarded in its favour by the Land Acquisition Officer. Respondent 5 who is described as the owner of the land has conveyed to us that it would submit to the order of the Court. We also record the submission of Mr. Dhanuka, learned Counsel for the appellants, that in the event the other awardees who were awarded paltry sums by the award under Section 11, Land Acquisition Act, do not refund sums withdrawn, the appellants are prepared to refund and/or deposit the said sums. Therefore,



we conclude that on the ground of delay the appellants could not be deprived of the relief to which they were otherwise entitled."

The ratio of this case squarely applies here. Nor again, in our considered opinion, the previous Decisions upholding the validity of the acquisitions would be of any value because as we have observed earlier the causes of action arose only on 23-3-1988 and 24-3-1988 when the transfers came to be effected, or on subsequent days when leases had come to be effected. Therefore, where in ignorance of these transactions if compensation had come to be accepted we should not put that against such of those land owners. But that question does not arise in this case. Therefore, we shall relegate the same to the other cases.

Lastly, what remains to be seen is what is the effect of

fraud. Does it render the entire acquisition bad or is

it to be held to be bad only in so far as these

appellants are concerned? We are of the view that if

fraud unravels everything, it cannot be valid in part

and invalid in other parts. But, we need not go to that extent because there are other Writ Petitions including a Writ Appeal in which this question may arise direct. We do not want to prejudice those petitioners/appellants. Therefore, this question we relegate to those cases.” (emphasis supplied)

5. Annaiah and others, who owned land comprised in Survey Nos.146/1, 156/1, 147/1, 147/2 and 156, filed Writ Petition Nos.9032 to 9041 of 1988 questioning the acquisition of their land. The same were dismissed by the learned Single Judge on the ground of delay. Thereafter, they filed Writ Petition Nos.19812 to 19816 of 1990 for issue of a mandamus to the State Government and the Corporation to return the land by asserting that the same had been illegally transferred to private persons. They pleaded that the acquisition proceedings were vitiated due to mala fides and misuse of power for oblique and collateral purpose. Those petitions were allowed by the Division Bench of the High Court vide order dated 18.9.1991, the relevant portions of which are extracted below:

“In our considered view, it is one thing to say that acquisition is actuated by legal mala fides, but it is totally different thing to say that

acquisition for all intents and purposes is embarked on an apparent public purpose and ultimately that purpose is not served. In other words, what we mean is [that] where the lands have been acquired, undoubtedly for public purpose for the benefit of the Karnataka State Tourism Development Corporation and after acquisition, even before taking possession, if agreements were entered into on the ground that the Karnataka State Tourism Development Corporation did not have enough money to meet the cost of acquisition and that it would be better to get rid of the litigation by selling away the same or leasing away the properties and thereby give it to private individuals. We are of the view

that it is a clear case of diversification of purpose. It

requires to be carefully noted that it is not for any public

purpose. But it is a diversification to a private purpose.

Therefore, to the extent the acquisition proceeded with

even up to the stage of declaration under Section 6 or to

certain point beyond that, it could not be validly

challenged on the ground that it is not for public

purpose. But where under the cover of public purpose,

the owners are dispossessed and there is diversifications,

we hold that it is fraudulent exercise of the power of

eminent domain. This is exactly the view we have taken in W.A. Nos.1094 to 1097 of 1987. This aspect of the matter was not before our learned brother Justice Bopanna. All that was stated was the acquisition, namely, Notification under Section 4(1) culminating in Declaration under Section 6 of the Act was not actuated by legal mala fides. That is far different from diversification for public purpose. It might be that agreements dated 23.03.1988 and 24.03.1988 might have been buttressed in respect of legal mala fides. On that score we cannot conclude that the issue as dealt with by us in W.A. Nos. 1094 to 1097 of 1987 was ever before Justice Bopanna. Therefore, we are unable to agree with Mr. Datar that the earlier ruling of Justice Bopanna in W.P. Nos.9032 to 9041 of 1988 dated 8th July 1988 would constitute res judicata so as to deprive the Petitioners of the benefit of the Judgment.

The cause of action challenging the validity of acquisition arose not after issue of final notification under section 6 but after the alienation of lands in favour of third parties and thus the Corporation in whose favour the lands



have been acquired have been deviated. In my opinion the decision rendered in Mrs. Behroze Ramyar Batha is fully applicable to the facts of this case. It is true that acquisition is challenged after quite a long time to final notification. But challenge is not made to the legality of the acquisition. The challenge is to deviation of the purpose for which the land was acquired. That then is the eminent domain was the question posed by the Division Bench and answered in the words of Nichols as an attribute of sovereignty. Acquisition in this case is actuated by mala fides. Though lands were acquired for public purpose as

declared in 6(1) notification and possession was taken

for the said public purpose, agreements were entered

into even before possession was taken to part with

substantial portion of the land. Where [with the] object

of providing lands to a private individual[s], if

acquisition proceedings are reported to or power of

eminent domain comes to be exercised, it would [be]

nothing more than fraud on power. There it is a case of

fraud[;] it would unreveal [sic – unravel?] everything. It

cannot be valid in part and invalid in other parts (See

Lazarus Estates Ltd. v. Gurdial Singh – AIR 1980 SC

319: Pratap Singh v. State of Punjab – AIR 1964 SC 73:

Narayana Reddy v. State of Karnataka – ILR 1991 KAR.

2248). Therefore the question of limitation does not arise

in such cases. Where the actions are found to be mala

fide, courts have not failed to strike down those actions

as laid down by the Supreme Court in Pratap Singh v.

State of Punjab’s case cited supra.” (emphasis by SC)

The operative portion of the order passed in that case is extracted below:

“In the result, we allow these writ petitions quash the notification issued under Section 4(1) and the declaration under Section 6 of the Act and all subsequent proceedings.”

6. Smt. H.N. Lakshmamma and others also questioned the acquisition of their land comprised in Survey Nos.165/3 and 166/4 of Kodihalli village. The writ petition filed by them was dismissed. On appeal, the Division Bench of the High Court framed the following question:

“Whether in view of the judgment cited above, namely, W.A. Nos.1094 & 1095/87 and W.P. 19812 to 19816/90 wherein we have held that the land acquisition proceedings concerning the very same notification and declaration are liable to be set aside on the

ground of fraudulent exercise of power, could be extended in favour of the appellants?”

The Division Bench relied upon the passages from Administrative Law by W.H.R. Wade and De Smith and Ker on Fraud and rejected the plea of the respondents (appellants herein) that by having accepted the amount of compensation, the writ petitioners will be deemed to have acquiesced in the acquisition proceedings. The Division Bench then referred to the judgment of the Bombay High Court in Industrial

Development & Investment Company Private

Limited v. State of Maharashtra (supra) and the order passed in Writ Petition Nos. 19812 - 19816 of 1990 and held that the appellants are entitled to return of land subject to the condition of deposit of the amount of compensation together with interest at the rate of 12% per annum.

Facts relating to transfer of land owned

by respondent No.1 and his brothers and

details of the cases filed by them:

7. After receiving compensation in respect of 2 acres 30 guntas land comprised in Survey No.122 of Kodihalli village, respondent No.1 and his brothers filed applications under Section 18 of the Act for making reference to the Court for determination of the compensation. During the pendency of reference, the Corporation invited bids for allotment of 5 acres land including 2 acres 30 guntas belonging to respondent No.1 and his brothers for putting up a tourist resort. M/s. Universal Resorts Limited gave the highest bid, which was accepted by the Corporation and lease agreement dated 21.4.1989 was executed in favour of the bidder. Thereafter, the Corporation approached the State Government for grant of permission under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 for leasing out a portion of the acquired land to M/s. Universal Resorts Limited. The State Government granted the required permission vide order dated 17.6.1991. After 6 months, registered lease deed dated 9.1.1992 was executed by the Corporation in favour of M/s. Universal Resorts Limited through its Managing Director, Sri C.K.



Baljee purporting to lease out 5 acres land for a period of 30 years on an annual rent of Rs.1,11,111/- per acre for the first 10 years.

8. In the meanwhile, Shri C.K. Baljee, Managing Director of M/s. Universal Resorts Limited filed suit for injunction against respondent No.1 and his brothers by alleging that they were trying to forcibly encroach upon the acquired land. He also filed an application for temporary injunction. By an ex parte order dated 29.10.1991, the trial Court restrained respondent No.1 and his brothers from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. After about two years, the brothers of respondent No.1 filed Writ Petition Nos.2379 and 2380 of 1993 for quashing the acquisition of land measuring 0.29 guntas and 0.38 guntas respectively, which came to their share in the family partition effected in 1968. They relied upon the judgments of the Division Bench in Mrs. Behroze Ramyar Batha and others v. Special Land Acquisition Officer (supra) and Writ Appeal No.2605 of 1991 – Smt. H.N.

Lakshmamma and others v. State of Karnataka

and others decided on 3.10.1991 and pleaded that once the acquisition has been quashed at the instance of other landowners, the acquisition of their land is also liable to be annulled. The appellants, who were respondents in those cases, pleaded that the writ petitions should be dismissed because 5 acres land had been leased out by adopting a transparent method and there was no justification to nullify the acquisition after long lapse of time. The learned Single Judge did notice the judgments of the Division Bench on which reliance was placed by the writ petitioners but distinguished the same by making the following observations:

“The dictum therein cannot be applied to the instant case. The land of the petitioners were acquired for the public purpose of Golf-cum-Hotel Resort near the Airport. The statement of objection filed by respondents 4 and 5 clearly shows that the land was transferred to them for the need of tourist industry namely construction of Hotel/Tourist Complex. The order passed by

the Government exempting the 3rd Respondent from the purview of the Urban Land (Ceiling & Regulation) Act 1976 also shows the intended transfer being made by the 3rd respondent is for the establishing of Hotel/Tourist Complex. This is also borne out from the lease deeds executed by respondents 4 and 5. These materials are sufficient to hold that the land is being put by the 3rd respondent for the purpose for which it was acquired. These materials are sufficient for this court for the present and indeed [refrain?] from conducting any further rowing enquiry on the basis of the allegation made by the petitioners in this writ petition. Without anything more it can be held that the dictum of the decision of this Court referred to supra is inapplicable to the facts of the present case. Hence, the petitioners cannot take shelter under the said decision viz. ILR 1991 Karnataka 3556 and successfully challenge the land acquisition proceedings.”

The learned Single Judge finally dismissed the writ petitions by observing that even though the writ petitioners were aware of the order of injunction passed by the Civil Court in the suit filed by the Managing Director, M/s. Universal Resorts Limited – C.K. Baljee, they did not question the acquisition for a period of almost two years and approached the Court after long lapse of time counted from the date of acquisition. Writ Appeal Nos.4536 and 4541 of 1995 filed by G. Ramaiah Reddy and G. Nagaraja Reddy were dismissed by the Division Bench of the High Court on 1.1.1996 by a one word order and the special leave petitions filed by them were summarily dismissed by this Court vide order dated 26.2.1996.

9. In a separate petition filed by him, which came to be registered as Writ Petition No.34891 of 1995, respondent No.1 prayed for quashing notifications dated 29.12.1981 and 16.4.1983 insofar as the same related to 1 acre 3 guntas land comprised in Survey No.122/1 of Kodihalli village and for issue of a mandamus to respondent Nos.3 to 5 (the appellants herein) to redeliver possession of the said land. He pleaded that in the garb of acquiring land for a public purpose, the official respondents have misused



the provisions of the Act with the sole object of favouring private persons. In the counter affidavits filed on behalf of the appellants, it was pleaded that the writ petition was highly belated and that by having accepted the compensation determined by the Special Land Acquisition Officer, respondent No.1 will be deemed to have waived his right to challenge the acquisition proceedings.

10. The writ petition filed by respondent No.1 was decided in two rounds. In the first round, the learned Single Judge rejected the objection of delay raised by the appellants. He referred to the judgments of the High Court in Mrs. Behroze Ramyar Batha and others v. Special Land Acquisition Officer (supra) and Writ Appeal No.2605 of 1991 – Smt. H.N. Lakshmamma and others v. State of Karnataka and others (supra), declined to follow the course adopted by the coordinate Bench, which had dismissed the writ petitions filed by the brothers of respondent No.1 and observed:

“……The cause of action challenging the validity of acquisition arose not after issue of final notification under section 6 but after the alienation of lands in favour of third parties and thus the Corporation in whose favour the lands have been acquired have been deviated. [sic]. In my opinion the decision rendered in Mrs. Behroze Ramyar Batha is fully applicable to the facts of this case. It is true that acquisition is challenged after quite a long time to final notification. But challenge is not made to the legality of the acquisition. The challenge is to deviation of the purpose for which the land was acquired. That [sic - What?] then is the eminent domain was the question posed by the Division Bench and answered in the words of Nichols as an attribute of sovereignty. Acquisition in this case is actuated by mala fides. Though lands were acquired for public purpose as declared in 6(1) notification and possession was taken for the said public purpose, agreements were entered into even before possession was taken to part with substantial portion of the land. Where object of providing lands to a private individuals, if acquisition proceedings are reported to or power of eminent domain comes to be exercised, it

would [be] nothing more than fraud on power. There it is a case of fraud it would unreveal [?]

everything. It cannot be valid in part and invalid in other parts (See Lazarus Estates Ltd. v. Gurdial Singh – AIR 1980 SC 319: Pratap Singh v. State of Punjab – AIR 1964 SC 73: Narayana Reddy v. State of Karnataka – ILR 1991 Kar. 2248). Therefore the question of limitation does not arise in such cases. Where the actions are found to be mala fide, courts have not failed to strive [sic - strike] down those actions as laid down by the Supreme Court in Pratap Singh v. State of Punjab’s case cited supra.”

11. The writ appeals filed by the appellants were allowed by the Division Bench on the ground that the learned Single Judge was not justified in ignoring the order passed by the coordinate Bench. The Division Bench observed that merits of the case could have been considered only if he was convinced that the writ petitioner had given cogent explanation for the delay and, accordingly, remitted the matter for fresh disposal of the writ petition.

12. In the second round, the learned Single Judge dismissed the writ petition by observing that even though fraud vitiates all actions, the Court is not bound to give relief to the petitioner ignoring that he had approached the Court after long lapse of time. Writ Appeal No.7772 of 1999 filed by respondent No.1 was allowed by the Division Bench of the High Court. While dealing with the question whether the learned Single Judge was justified in non suiting respondent No.1 on the ground of delay, the Division Bench referred to the explanation given by him, took cognizance of the fact that even after lapse of more than a decade and half land had not been put to any use and observed:

“……It is the definite case of the appellant that he came to know of the fraud committed by the 3rd respondent in diverting the acquired land clandestinely in favour of Respondents 4 and 5 and certain others, that too, for the purpose other than the purpose for which the land was acquired, only in the year 1993. It is his further case that even then, he did not approach this Court for legal remedies immediately after he



came to know of the fraud committed by the 3rd respondent and also the judgment of this Court in the case of Batha (supra), because, under a wrong legal advice, he filed I.A.I. in L.A.C. No. 37 of 1988. In other words, even after the appellant came to know of the fraud committed by the 3rd respondent, under a wrong advice, he was prosecuting his case before a wrong forum. The question for consideration is whether that circumstance can be taken into account for condoning the delay. A three Judge Bench of the Supreme Court in the case of Badlu and another. v. Shiv Charan and others., (1980) 4 SCC 401, where a party under a wrong advice given to them by their lawyer was pursuing an appeal bona fide and in good faith in wrong Court, held that the time taken for such prosecution should be condoned and took exception to the order of the High Court in dismissing the second appeal. Further, the Supreme Court in M/s Concord of

India Insurance Company Limited v. Smt.

Nirmala Devi and Others., [1979] 11 8 ITR 507 (SC), has held that the delay caused on account of the mistake of counsel can be sufficient cause to condone the delay and the relief should not be refused on the ground that the manager of company is not an illiterate or so ignorant person who could not calculate period of limitation.

It is the further case of the appellant that only in the month of September, 1995 he was advised by another counsel that the appellant was wrongly prosecuting his case before the Civil Court by filing I.A.I. in L.A.C. No. 37 of 1988 and that the civil court has no jurisdiction to quash the notification issued under Section 4(1) and declaration under Section 6(1) of the Act and for that relief, he should necessarily file writ petition in this Court. The appellant on receiving such advice from the counsel, without any further loss of time, filed the present Writ Petition No. 34891 of 1995 in this Court on 18-9-1995. It further needs to be noticed that the pleading of the appellant would clearly demonstrate that but for the fraud committed by the 3rd respondent in diverting the acquired land in favour of respondents 4 and 5 and others clandestinely for the purposes other than the purpose for which it was acquired, perhaps, the appellant would not have challenged the land acquisition proceedings at all. It is his definite case that he was

approaching this Court under Article 226 for quashing the impugned notifications only because the acquired land was sought to be diverted by the 3rd respondent-beneficiary in favour of third parties, that too, for the purposes other than the one for which it was acquired and the acquisition of the entire extent of land under the same notification in its entirety is already quashed by this Court as fraud on power and tainted by mala fide. Therefore, the Court has necessarily to consider the question of delay and laches in the premise of the specific case of the appellant and it will be totally unfair and unjust to take into account only the dates of Section 4(1) notification and Section 6(1) declaration. It is also necessary to take into account the fact that well before the appellant approached this Court, the Division Bench of this Court in Writ Appeal No. 2605 of 1991 and Writ Petition Nos. 19812 to 19816 of 1990 preferred by certain other owners of the acquired land vide its orders dated 18-9-1991 and 3-10-1991 had already quashed Section 4(1) Notification and Section 6(1) declaration in their entirety and directed the State Government and the LAO to handover the acquired land to the owners concerned on red positing of the compensation money received by the owners with 12% interest p.a. In that view of the matter, it is trite, the acquisition of the schedule land belonging to the appellant also stood quashed by virtue of the above judgments of the Division Bench. Strictly speaking, the State Government and the LAO even in the absence of a separate challenge by the appellant to the land acquisition proceedings, in terms of the orders made in the above writ appeal and writ petitions, ought to have handed over the schedule land to the appellant by collecting the amount of money received by him as compensation with interest at 12% p.a. Be that as it may, the appellant as an abundant caution separately filed writ petition for quashing of the notifications issued under Sections 4(1) and 6(1) of the Act with regard to the schedule land. The relief cannot be refused to the appellant, because, the appellant herein and the appellants in Writ Appeal Nos. 1094-1097 of 1987 and W.A. No. 2065 of 1991 and the petitioners in Writ petition Nos. 19812 to 19816 of 1990 are all owners of the acquired land under the same notifications



and all of them belong to a 'well-defined class' for the purpose of Article 14 of the Constitution. There is absolutely no warrant or justification to extend different treatment to the appellant herein simply, because, he did not join the other owners at an earlier point of time. It is not that all the owners of the acquired land except the appellant instituted the writ petitions jointly and the appellant alone sat on fence awaiting the decision in the writ petitions filed by the other owners. Some writ petitions were filed in the year 1987 and other writ petitions in the year 1990 as noted above. Since the appellant came to know of the fraud committed by the 3rd respondent only in the year 1993 after this Court delivered the judgment in Batha's case (supra) and since he was prosecuting his case before a wrong forum under a wrong legal advice and therefore, the time so consumed has to be condoned in view of the judgment of the Supreme Court already referred to above, we are of the considered opinion that the learned single Judge is not justified in dismissing the writ petition on the ground of delay and laches.

It needs to be noticed further that admittedly, no developments have taken place in the schedule land despite considerable passage of time. Further more, admittedly, no rights of third parties are created in the schedule land. The schedule land being a meagre extent of land compared to the total extent of land acquired for the public purpose, cannot be put to use for which it was originally acquired. Looking from any angle, we do not find any circumstance on the basis of which we would be justified in refusing the relief on the ground of delay and laches even assuming that there was some delay on the part of the appellant before approaching this Court by way of writ petition in the year 1995.”

The Division Bench then referred to orders dated 18.9.1991 and 3.10.1991 passed in Writ Petition Nos. 19812 to 19816 of 1990 – Annaiah and

others v. State of Karnataka and others and Writ Appeal No. 2605 of 1991 – Smt. H.N.


and others (supra) respectively and held:

“……Since the appellant herein and the appellants and writ petitioners in W.A. No. 2605 of 1991 and W.P. Nos. 19812 to 19816 of 1990

are the owners of the acquired land under the same notification and similarly circumstanced in every material aspect, they should be regarded as the persons belonging to a 'well-defined class' for the purpose of Article 14 of the Constitution. In other words, the appellant herein is also entitled to the same relief which this Court granted in Writ Appeal No. 2605 of 1991 and W.P. Nos. 19812 to 19816 of 1990 to the owners therein. Apart from that, as already pointed out, the schedule land is a very meagre land compared to the total extent of land acquired and except the schedule land the acquisition of the remaining land has been set at naught and the possession of the land has been handed over to the owners. The schedule land being a meagre in extent, cannot be used for the purpose for which it was acquired. That is precisely the reason why the schedule land is kept in the same position as it was on the date of Section 4(1) notification without any improvement or development.”

The Arguments

13. Shri Basava Prabhu S. Patil and Shri S.S. Naganand, learned senior counsel appearing for the appellants criticized the impugned judgment and argued that the Division Bench of the High Court committed serious error by entertaining and allowing the writ appeal filed by respondent No.1 despite the fact that the writ petitions, the writ appeals and the special leave petitions filed by his brothers had been dismissed by the High Court and this Court. Learned counsel submitted that even though judgments and order passed by the Division Bench in other cases had become final, relief could not have been given to respondent No.1 by overlooking the unexplained delay of 12 years. They further submitted that the cause of action for challenging the transfer of land in favour of M/s. Universal Resorts Limited accrued to respondent No.1 in 1992 when registered lease deed was executed by the Corporation and the Division Bench of the High Court was not at all justified in entertaining the prayer of respondent No.1 after lapse of more than three years. Shri Naganand relied upon the judgment of this Court in Om Parkash v. Union of India, (2010) 4 SCC 17, and argued that quashing of notifications by



the High Court in three other cases would enure to the benefit of only those who approached the Court within reasonable time and respondent No.1, who had kept quiet for 12 years cannot take advantage of the same. Shri Naganand lamented that even though his clients had given highest bid in May, 1987 and lease deed was executed in January, 1992, they have not been able to utilize the land on account of pendency of litigation for last more than 16 years and have suffered huge financial loss.

14. Shri Mahendra Anand, learned senior counsel appearing for respondent No.1 supported the impugned judgment and argued that the Division Bench of the High Court did not commit any error by directing return of land to respondent No.1 because acquisition thereof was vitiated by fraud. Learned senior counsel emphasised that in view of the unequivocal finding recorded in Mrs.

Behroze Ramyar Batha and others v. Special

Land Acquisition Officer (supra) and other cases that land acquired for the specified public purpose, i.e. Golf-cum-Hotel Resort could not have been transferred to private persons and that there was conspiracy to deprive the owners of their land by use of the power of eminent domain, the Division Bench rightly annulled the action of the Corporation.

15. Before dealing with the arguments of the learned counsel, we may mention that the Committee of the Karnataka Legislature on Public Undertakings had in its Fifty-Second Report severely criticized the exercise undertaken by the Corporation in the matter of acquisition of 39 acres 27 guntas land. This is evident from paragraph 2.24 of the Report, which is extracted below:

“2.24. After full examination, the Committee makes the following observations and recommendations:

(i) Most of the projects envisaged to be taken up in 1981 and subsequently by the Company were farfetched and grandiose ones lacking in the basic sense of realism as regards details and specifics, assured modes of financing, benefits and income to be derived and viability. By no

stretch of imagination, could they be deemed to meet the main objectives of the Company to promote and maximise tourism by offering catering, lodging, recreational, picnic and other facilities to as broad a spectrum of tourists as possible. In fact, they were designed mainly to cater to the requirements of a small number of elitist and affluent tourists and could never have boosted tourism in the State. For these [sic - this] grave dereliction of duties, the Committee holds the then Managing Directors and the then Government nominees on the Board of Directors, as responsible.

(ii) The proper and sound objections raised by Government in August, 1984 went unheeded by successive Boards of Directors of the Company who pursued with reckless abandon their fanciful schemes and led the Company on a wild goose chase. As a result, ultimately, the Company has been left virtually holding the sack with none of these schemes materialising and the Company having been put to an infructuous expenditure of Rs.18.97 lakhs towards interest on the bank borrowings to finance land acquisition, not to speak of the wasted precious time and effort of the whole Management and organisation of the Company for nearly 10 years. The then Managing Director of the Company, Sri K. Sreenivasan and the Boards of Directors of the Company at the relevant periods have to bear responsibility in this regard.

(iii) In the opinion of the Committee, the Company had an opportunity to reconsider and give up these unnecessary schemes when it encountered difficulties in acquiring the required land of 39 acres in 1986-87 as a result of the land owners/power of attorney holders moving the Courts for stay of the acquisition proceedings. Instead, the Company opted to pursue the acquisition of land even at the cost of surrendering 14 acres and 8 guntas of land (out of 23 acres 36 guntas acquired) to Sri Dayananda Pai, a power of attorney holder, for a group housing scheme for employees of public/private sector undertakings, which was a purpose/scheme not contemplated by the Company and in no way connected with the Company's objectives. The so-called compromise Agreement of March 1987 with Sri Dayananda Pai had the effect of only



compromising the Company's interests in that it contained no provisions regarding commitment and penalties on Sri Dayananda Pai to assist the Company to acquire the entire lands of 39 acres 27 guntas while he was presented with 14 acres 8 guntas of land on a platter as it were for executing the group housing scheme for his purpose and pecuniary benefits.

Whether Sri Dayananda Pai has really implemented the Group Housing Scheme in Challaghatta for the employees of Public and Private Undertakings is not clear. The Committee wants Government to find out the true position in this regard and intimate the Committee.

In the end, with all this compromise, the Company could acquire and take possession of only 23 acres and 36 guntas (as against 39 acres and 27 guntas envisaged) of which 14 acres and 8 guntas were parted to Sri Dayananda Pai, and the Company was left with only 9 acres 28 guntas for its schemes. Further, to go through with the acquisition, the Company has to borrow Rs. 43.54 lakhs from the Canara Bank for depositing with the land acquisition authorities and had to incur interest charges of Rs.18.97 lakhs, which have become infructuous. There were highly injudicious acts leading to avoidable loss of Rs.18.97 lakhs.

(iv) The Committee notes that out of more than seven projects envisaged in 1981, the Company, as a result of the tortuous and adverse developments, omissions, commissions and irregularities described in the preceding paragraphs, could manage to initiate only two schemes, viz., International Centre and Tourist Complex and, that too only to the extent of handing over land to the concerned parties, viz. Bangalore International Centre and M/s. Universal Resorts Limited. Even these two schemes have remained non-starters because in the first case the Board of Directors of the Company did not approve the leasing of land and in the second case the initial formalities like registration of sale deed, urban land clearance etc. have dragged on.

In this connection, the Committee takes serious note of the fact that possession of lands was given by the Company to Bangalore International

Centre and M/s. Universal Resorts Ltd., prematurely without obtaining approval of the Board of Directors or completing even the initial formalities etc., as the case may be.”

16. The first question which needs consideration is whether the High Court committed an error by granting relief to respondent No.1 despite the fact that he filed writ petition after long lapse of time and the explanation given by him was found unsatisfactory by the learned Single Judge, who decided the writ petition after remand by the Division Bench.

17. Although [the] framers of the Constitution have

not prescribed any period of limitation for filing a

petition under Article 226 of the Constitution of India

and the power conferred upon the High Court to issue

to any person or authority including any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari is not

hedged with any condition or constraint, in last 61 years

the superior Courts have evolved several rules of self-

imposed restraint including the one that the High Court

may not enquire into belated or stale claim and deny

relief to the petitioner if he is found guilty of laches. The principle underlying this rule is that the one who is

not vigilant and does not seek intervention of the Court

within reasonable time from the date of accrual of cause

of action or alleged violation of constitutional, legal or

other right is not entitled to relief under Article 226 of the Constitution. Another reason for the High Court’s refusal to entertain belated claim is that during the intervening period rights of third parties

may have crystallized and it will be inequitable to

disturb those rights at the instance of a person who has

approached the Court after long lapse of time and there

is no cogent explanation for the delay. We may hasten to add that no hard and fast rule can be laid down and

no straightjacket formula can be evolved for deciding

the question of delay/laches and each case has to be

decided on its own facts. (emphases ours)

18. In Dehri Rohtas Light Railway Company

Limited v. District Board, Bhojpur, (1992) 2 SCC 598, this Court set aside the judgment of the Patna High Court whereby the writ petition filed by the appellant against the demand notice issued for levy of cess for the period 1953-54 to 1966-67



was dismissed only on the ground of delay. The facts of that case show that the writ petition filed by the appellant questioning the demand for 1967-68 to 1971-72 was allowed by the High Court. However, the writ petition questioning the demand of the earlier years was dismissed on the premise that the petitioner was guilty of laches. While dealing with the question of delay, this Court observed:

“The question thus for consideration is whether the appellant should be deprived of the relief on account of the laches and delay. It is true that the appellant could have even when instituting the suit agitated the question of legality of the demands and claimed relief in respect of the earlier years while challenging the demand for the subsequent years in the writ petition. But the failure to do so by itself in the circumstances of the case, in our opinion, does not disentitle the appellant from the remedies open under the law. The demand is per se not based on the net profits of the immovable property, but on the income of the business and is, therefore, without authority. The appellant has offered explanation for not raising the question of legality in the earlier proceedings. It appears that the authorities proceeded under a mistake of law as to the nature of the claim. The appellant did not include the earlier demand in the writ petition because the suit to enforce the agreement limiting the liability was pending in appeal, but the appellant did attempt to raise the question in the appeal itself. However, the Court declined to entertain the additional ground as it was beyond the scope of the suit. Thereafter, the present writ petition was filed explaining all the circumstances. The High Court considered the delay as inordinate. In

our view, the High Court failed to appreciate all

material facts particularly the fact that the demand is

illegal as already declared by it in the earlier case.

The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the

rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test

to determine delay in such cases is that the petitioner

should come to the writ court before a parallel right is

created and that the lapse of time is not attributable to

any laches or negligence. The test is not to physical

running of time. Where the circumstances justifying the

conduct exists, the illegality which is manifest cannot be

sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for.” (1st emphasis supplied by SC; 2nd ours)

19. In Ramchandra Shankar Deodhar v. State of

Maharashtra, (1974) 1 SCC 317, the Court overruled the objection of delay in filing of a petition involving challenge to the seniority list of Mamlatdars and observed:

“……Moreover, it may be noticed that the claim for enforcement of the fundamental right of equal opportunity under Art. 16 is itself a fundamental right guaranteed under Art. 32 and this Court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like.”

20. In Shankara Cooperative Housing Society

Limited v. M. Prabhakar and others, (2011) 5 SCC 607, this Court considered the question whether the High Court should entertain petition filed under Article 226 of the Constitution after long delay and laid down the following principles:

“(1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it



is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.

(2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.

(3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy.

(4) No hard-and-fast rule can be laid down in this regard. Every case shall have to be decided on its own facts.

(5) That representations would not be adequate explanation to take care of the delay.”

21. Another principle of law of which cognizance deserves to be taken is that in exercise of power under Article 136 of the Constitution, this Court would be extremely slow to interfere with the discretion exercised by the High Court to entertain a belated petition under Article 226 of the Constitution of India. Interference in such matters would be warranted only if it is found that the exercise of discretion by the High Court was totally arbitrary or was based on irrelevant consideration. In Smt. Narayani Debi Khaitan v. State of Bihar [C.A. No.140 of 1964 decided on 22.9.1964], Chief Justice Gajendragadkar, speaking for the Constitution Bench observed:

“It is well-settled that under Article 226, the power of the High Court to issue an appropriate writ is discretionary. There can be no doubt that if a citizen moves the High Court under Article 226 and contends that his fundamental rights have been contravened by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner

has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction. No hard and fast rule can be laid

down as to when the High Court should refuse to

exercise its jurisdiction in favour of a party who

moves it after considerable delay and is otherwise

guilty of laches. That is a matter which must be left to

the discretion of the High Court and like all matters

left to the discretion of the Court, in this matter too

discretion must be exercised judiciously and

reasonably.” (emphasis supplied by SC)

22. In the light of the above, it is to be seen whether the discretion exercised by the Division Bench of the High Court to ignore the delay in filing of writ petition is vitiated by any patent error or the reasons assigned for rejecting the appellants’ objection of delay are irrelevant and extraneous. Though it may sound repetitive, we may mention that in the writ petition filed by him, respondent No.1 had not only prayed for quashing of the acquisition proceedings, but also prayed for restoration of the acquired land on the ground that instead of using the same for the public purpose specified in the notifications issued under Sections 4(1) and 6, the Corporation had transferred the same to private persons. Respondent No.1 and other landowners may not be having any serious objection to the acquisition of their land for a public purpose and, therefore, some of them not only accepted the compensation, but also filed applications under Section 18 of the Act for determination of market value by the Court. However, when it was discovered that the acquired land has been transferred to private persons, they sought intervention of the Court and in the three cases, the Division Bench of the High Court nullified



the acquisition on the ground of fraud and misuse of the provisions of the Act.

23. Insofar as land of respondent No.1 is concerned, the same was advertised in 1987 along with other parcels of land (total measuring 5 acres) and Corporation executed lease in favour of M/s. Universal Resorts Limited in 1992. However, no material has been placed on record to show that the said exercise was undertaken after issuing notice to the landowners. When respondent No.1 discovered that his land has been transferred to private entity, he made grievance and finally approached the High Court. During the intervening period, he pursued his claim for higher compensation. Therefore, it cannot be said that he was sleeping over his right and was guilty of laches.

24. A reading of the impugned judgment, the relevant portions of which have been extracted hereinabove shows that the Division Bench of the High Court adverted to all the facts, which had bearing on the issue of delay including the one that on the advice given by an advocate, respondent No.1 had availed other remedies and opined that the delay had been adequately explained. Thus, it cannot be said that the discretion exercised by the High Court to entertain and decide the writ petition filed by respondent No.1 on merits is vitiated by any patent legal infirmity. It is true that the writ petitions filed by the brothers of respondent No.1 had been dismissed by the learned Single Judge on the ground of delay and the writ appeals and the special leave petitions filed against the order of the learned Single Judge were dismissed by the Division Bench of the High Court and this Court respectively, but that could not be made basis for denying relief to respondent No.1 because his brothers had neither questioned the diversification of land to private persons nor prayed for restoration of their respective shares. That apart, we find it extremely difficult, if not impossible, to approve the approach adopted by the learned Single Judge in dealing with Writ Petition Nos. 2379 and 2380 of 1993 filed by the

brothers of respondent No.1. He distinguished the judgments of the Division Bench in Mrs. Behroze

Ramyar Batha and others v. Special Land

Acquisition Officer (supra) and Smt. H.N.


and others, without any real distinction and did not adhere to the basic postulate of judicial discipline that a Single Bench is bound by the judgment of the Division Bench. Not only this, the learned Single Judge omitted to consider order dated 3.10.1991 passed in Writ Petition Nos. 19812 to 19816 of 1990 – Annaiah and

others v. State of Karnataka and others in which the same Division Bench had quashed notifications dated 28.12.1981 and 16.4.1983 in their entirety. Unfortunately, the Division Bench of the High Court went a step further and dismissed the writ appeals filed by the brothers of respondent No.1 without even adverting to the factual matrix of the case, the grounds on which the order of the learned Single Judge was challenged and ignored the law laid down by the coordinate Bench in three other cases. The special leave petitions filed by the brothers of respondent No.1 were summarily dismissed by this Court. Such dismissal did not amount to this Court’s approval of the view taken by the High Court on the legality of the acquisition and transfer of land to private persons. In this connection, reference can usefully be made to the judgment in Kunhayammed v. State of Kerala, (2000) 6 SCC 359.

25. The next question which merits examination is whether the High Court was justified in directing restoration of land to respondent No.1. In Mrs. Behroze Ramyar Batha and others v. Special Land Acquisition Officer (supra), the Division Bench of the High Court categorically held that the exercise undertaken for the acquisition of land was vitiated due to fraud. The Division Bench was also of the view that the acquisition cannot be valid in part and invalid in other parts, but did not nullify all the transfers on the premise that other writ petitions and a writ appeal involving challenge to the acquisition



proceedings were pending. In Annaiah and others v. State of Karnataka and others (supra), the same Division Bench specifically adverted to the issue of diversification of purpose and held that where the landowners are deprived of their land under the cover of public purpose and there is diversification of land for a private purpose, it amounts to fraudulent exercise of the power of eminent domain.

26. The pleadings and documents filed by the parties in these cases clearly show that the Corporation had made a false projection to the State Government that land was needed for execution of tourism related projects. In the meeting of officers held on 13.1.1987, i.e. after almost four years of the issue of declaration under Section 6, the Managing Director of the Corporation candidly admitted that the Corporation did not have the requisite finances to pay for the acquisition of land and that Dayananda Pai, who had already entered into agreements with some of the landowners for purchase of land, was prepared to provide funds subject to certain conditions including transfer of 12 acres 34 guntas land to him for house building project. After 8 months, the Corporation passed resolution for transfer of over 12 acres land to Dayananda Pai. The Corporation also transferred two other parcels of land in favour of Bangalore International Centre and M/s. Universal Resorts Limited. These transactions reveal the true design of the officers of the Corporation, who first succeeded in persuading the State Government to acquire huge chunk of land for a public purpose and then transferred major portion of the acquired land to private individual and corporate entities by citing poor financial health of the Corporation as the cause for doing so. The Courts have repeatedly held that in exercise of its power of eminent

domain, the State can compulsorily acquire land of the

private persons but this proposition cannot be over-

stretched to legitimize a patently illegal and fraudulent

exercise undertaken for depriving the landowners of their

constitutional right to property with a view to favour

private persons. It needs no emphasis that if land is to

be acquired for a company, the State Government and

the company is bound to comply with the mandate of the

provisions contained in Part VII of the Act. Therefore, the

Corporation did not have the jurisdiction to transfer the

land acquired for a public purpose to the companies and

thereby allow them to bypass the provisions of Part VII.

The diversification of the purpose for which land was

acquired under Section 4(1) read with Section 6 clearly

amounted to a fraud on the power of eminent domain. This is precisely what the High Court has held in the judgment under appeal and we do not find any valid ground to interfere with the same more so because in Annaiah and others v. State of

Karnataka and others (supra), the High Court had quashed the notifications issued under Sections 4(1) and 6 in their entirety and that judgment has become final.

27. The judgment in Om Parkash v. Union of

India (supra) on which reliance has been placed by Shri Naganand is clearly distinguishable. What has been held in that case is that quashing of the acquisition proceedings would enure to the benefit of only those who had approached the Court within reasonable time and not to those who remained silent. In this case, respondent No.1 independently questioned the acquisition proceedings and transfer of the acquired land to M/s. Universal Resorts Ltd. In other words, he approached the High Court for vindication of his right and succeeded in convincing the Division Bench that the action taken by the Corporation to transfer his land to M/s. Universal Resorts Limited was wholly illegal, arbitrary and unjustified.

28. In the result, the appeals are dismissed. Respondent No.1 shall, if he has already not done so, fulfil his obligation in terms of the impugned judgment within a period of 8 weeks from today. The appellant shall fulfil their obligation, i.e. return of land to Res. No.1 within next 8 weeks.

* * * * *

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ISC-192 State of Haryana v. Mukesh Kumar & Ors. (IND-SC) (2011) 2 LAW


(2011) 2 LAW ISC-192


AT NEW DELHI

Civil Appellate Jurisdiction

Special Leave Petition (Civil) No. 28034 of 2011

(arising out of CC 9038/2010)

Date of Judgment♦♦♦♦: Friday, 30 September 2011

State of Haryana … Petitioner

Versus

Mukesh Kumar & Ors. … Respondents.


CORAM:

DALVEER BHANDARI, J.

DEEPAK VERMA, J.

For Petitioner (s): Mr. Manjit Singh, Advocate Mr. Kamal Mohan Gupta, Advt.

For Respondent (s): … … … … … … … … …

* * *

Head note:

Civil Law – theory of adverse possession – how far just and

proper – whether Government can advance the plea of

adverse possession to grab people’s lands is the vital

question in this case – It may be astonishing to learn that a trespasser may take the title of a building/land from the true owner in certain conditions and such theft is even authorized by law. The theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. It is argued that mistakes by landowners/negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest. The government itself may acquire land by adverse possession. Fairness dictates and commands that if the government can acquire title to private land through adverse possession, it should be able to lose title under the same circumstances. A very vital question which arises for consideration in this petition is whether the State, which is in charge of protection of life, liberty and property of the people can be permitted to grab the land and property of its ♦ Courtesy: Supreme Court at http://judis.nic.in/. Emphases

in bold ours - IMS.

own citizens under the banner of the plea of adverse possession? - Paras 1-4, p. ISC-192.

Our Law of adverse possession – inherited from the British

– archaic, unjust and detrimental to the interests of

property-owning general public – time come for abolition

of the law or at least making radical changes – some

suggestions made to the legislature – We inherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Government should protect the property of a citizen – not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. While it may be indefensible to require all adverse possessors – some of whom may be poor – to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament must seriously consider at least to abolish “bad faith” adverse possession – adverse possession achieved through intentional trespassing. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief. In case, the Parliament decides to retain the law of adverse possession, it might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass … The archaic law of adverse possession is one in conflict with justice. A serious re-look is absolutely imperative in the larger interest of the people. Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country. It is indeed a very

(2011) 2 LAW State of Haryana v. Mukesh Kumar & Ors. (IND-SC) ISC-193


disturbing and dangerous trend. …it must be arrested without further loss of time in the larger public interest. No govt. department, public undertaking … should be permitted to perfect the title of the land/building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case. In our considered view, there is an urgent need for a fresh look of the entire law on adverse possession. We recommend to the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession or in the alternative to make suitable amendments in the law of adverse possession. - Paras 42-51, pp. ISC-200/201.

* * *

J U D G M E N T

DALVEER BHANDARI, J.

1. People are often astonished to learn that a

trespasser may take the title of a building or land from

the true owner in certain conditions and such theft is

even authorized by law. (emphasis ours)

2. The theory of adverse possession is also perceived

by the general public as a dishonest way to obtain title

to property. Property right advocates argue that mistakes by landowners or negligence on their part

should never transfer their property rights to a

wrongdoer, who never paid valuable consideration for such an interest. (emphases ours)

3. The government itself may acquire land by adverse possession. Fairness dictates and commands that if the government can acquire title to private land through adverse possession, it should be able to lose title under the same circumstances.

4. We have heard the learned counsel for the State of Haryana. We do not deem it appropriate to financially burden the respondents by issuing notice in this Special Leave Petition. A very vital question which arises for consideration in this petition is whether the State, which is in charge of

protection of life, liberty and property of the people can

be permitted to grab the land and property of its own

citizens under the banner of the plea of adverse

possession? (emphasis ours)

5. Brief facts, relevant to dispose of this Special Leave Petition are recapitulated as under:

6. The State of Haryana had filed a Civil Suit

through the Superintendent of Police, Gurgaon,

seeking a relief of declaration to the effect that it

has acquired the rights of ownership by way of

adverse possession over land measuring 8 biswas

comprising khewat no. 34, khata no. 56, khasra

no. 3673/452 situated in the revenue estate of

Hidayatpur Chhavni, Haryana.

7. The other prayer in the suit was that the sale deed dated 26th March, 1990, mutation no. 3690 dated 22nd November, 1990 as well as judgment and decree dated 19th May, 1992, passed in Civil Suit No. 368 dated 9th March, 1991 are liable to be set aside. As a consequential relief, it was also prayed that the defendants be perpetually restrained from interfering with the peaceful possession of the plaintiff (petitioner herein) over the suit land. For the sake of convenience we are referring the petitioner as the plaintiff and the respondents as defendants.

8. In the written statement, the defendants raised a number of preliminary objections pertaining to estoppel, cause of action and misjoinder of necessary parties. It was specifically denied that the plaintiff ever remained in possession of the suit property for the last 55 years. It was submitted that the disputed property was still lying vacant. However, the plaintiff recently occupied it by using force and thereafter have also raised a boundary wall of police line. It was denied in the written statement that the plaintiff acquired right of ownership by way of adverse possession qua property in question. The defendants prayed for dismissal of suit and by way of a counter claim also prayed for a decree for possession qua suit property be passed.

9. The Trial Court framed the following Issues in the suit:

1. Whether plaintiffs have become owner of disputed property by way of adverse possession? OPP

2. Whether sale deed 26.3.1990 and mutation no. 3690 dated 22.11.90 are null and void as alleged? OPP



3. Whether judgment and decree dated 19.05.92 passed in civil suit no. 368 dated 9.3.91 is liable to be set aside alleged? OPP

4. Whether the suit of the plaintiff is not maintainable in the present form? OPP

5. Whether the plaintiff has no locus-standi to file the present suit? OPP

6. Whether the plaintiff has no cause of action to file the present suit? OPP

7. Whether the suit of the plaintiff is bad for misjoinder of necessary parties? OPP

8. Whether defendants no. 1 to 4 are rightful owners of disputed property on the basis of impugned sale deed dated 23.6.1990 registered on 3.7.1990? OPP

9. Whether defendants are entitled for possession of disputed property? OPP

10. Relief.

10. Issue No. 1 which relates to adverse possession and issue No. 4 pertaining to maintainability were decided together. According to the Trial Court, the plaintiff has failed to prove the possession over the disputed property because the plaintiff could not produce any documentary evidence to prove this. On the contrary, revenue records placed on the file shows that the defendants are the owners in possession of disputed property. The Trial Court observed that possession of State, as claimed in the plaint for a continuous period of 55 years, stood falsified by the documents issued by the officials of the State.

11. The Trial Court also observed that despite claiming adverse possession, there was no pleading qua denial of title of the defendants by the plaintiff, so much so that the specific day when the alleged possession of State allegedly became adverse against the defendants has not been mentioned in order to establish the starting point of limitation could be ascertained.

12. The Trial Court relied on the judgment of this Court in S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, wherein this Court has laid down that the adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession

becomes adverse. The Court also held that long possession is not necessarily adverse possession.

13. The Trial Court also relied on a decision of the High Court of Punjab and Haryana in the case of Bhim Singh & Ors. v. Zile Singh & Ors., AIR 2006 P and H 195, wherein it was stated that no declaration can be sought by a plaintiff with regard to the ownership on the basis of adverse possession.

14. The Trial Court came to specific conclusion that despite the fact that the possession of the plaintiff over the disputed land is admitted on behalf of defendants, Issue No. 1 stand decided against the plaintiff. It was held that the suit of the plaintiff claiming ownership by way of adverse possession is not maintainable. Consequently, Issue No. 1 was decided against the plaintiff and Trial No. 4 was decided in favour of the defendants.

15. The Trial Court decided Issue Nos. 2, 3, 5 and 6 together and came to the definite conclusion that the plaintiff failed to prove its possession over the property in question. It was also held that the plaintiff had no locus standi to challenge the validity of the impugned sale deed, mutation as well as the judgment and decree because the plaintiff was neither the owner nor in possession of the property in dispute. Consequently, the plaintiff had no right to say that the impugned sale deed dated 26th March, 1990 was a sham transaction and the suit of mutation dated 22nd November, 1990 and, thereafter, the judgment and decree dated 19th May, 1992 passed in Civil Suit No. 386 dated 9th March, 1991 are liable to be set aside.

16. The Trial Court came to the conclusion that the plaintiff having no right or title in the suit property has neither locus standi nor cause of action to file the present suit. Issue Nos. 2 and 3 were decided against the plaintiff, whereas, Issue Nos. 5 and 6 were decided in favour of the defendants.

17. Regarding Issue Nos. 8 and 9, the Trial Court observed that once it is held that defendant Nos. 1 to 4 are owners of the disputed property, which is



presently in possession of the plaintiff without any right, they (defendants) are entitled to its possession. Hence, Issue Nos. 8 and 9 were also decided in favour of the defendants.

18. Issue No. 7 was not pressed and decided against the defendants.

19. Regarding Issue No. 10 (relief) the Trial Court observed as under:

“As a sequel to the findings of this court on the

issues mentioned above, the suit of the plaintiff

stands dismissed, however, counter claim filed by

defendants is decreed with costs to the effect that

they are entitled to possession of land measuring

8 biswas comprising of khewat no. 34 khata no.

56 khasa no. 3673/452 situated in revenue estate

of Hidayatpur Chhavni village now the part of

known as Patel Nagar, Gurgaon. Decree sheet

be drawn accordingly. File be consigned to the

record room after due compliance.”

20. The plaintiff, aggrieved by the judgment of the Trial Court filed an appeal (Civil Appeal No. 33) before the learned Additional District Judge, Gurgaon. Learned Additional District Judge while deciding the appeal, relied on the judgment of the Punjab & Haryana High Court delivered in the case of Food Corporation of India and Another

v. Dayal Singh, 1991 PLJ 425, wherein it was observed that it does not behove the Government to take the plea of adverse possession against the citizens.

21. Learned Additional District Judge also relied on other judgments of Punjab & Haryana High Court in the cases of Bhim Singh & Ors. (supra) and Kanak Ram & Ors. v. Chanan Singh & Ors., (2007) 146 PLR 498 wherein it was held that a person in adverse possession of immovable property cannot file a suit for declaration claiming ownership and such a suit was not maintainable.

22. Before parting with the judgment the learned Additional District Judge observed regarding conduct of the plaintiff that the present suit was filed by State of Haryana by the then Superintendent of Police, Gurgaon on 11th May, 1996. It was also observed by the learned

Additional District Judge that the Police department is for the protection of the people and property of the citizens and the police department had unnecessarily dragged the defendants in unnecessary litigation. The appeal was dismissed with exemplary cost of Rs.25,000/-.

23. Unfortunately, despite serious strictures passed by the Court, the State of Haryana did not learn a lesson and preferred a Second Appeal (RSA No. 3909 of 2008) before the High Court of Punjab and Haryana, Chandigarh against the judgments and decrees of the two courts below.

24. The High Court, relying on the earlier judgments, observed that the welfare State which was responsible for the protection of life and property of its citizens, was in the present case, itself trying to grab the land/property of the defendants under the garb of plea of adverse possession and hence the action of the plaintiff is deplorable and disgraceful.

25. Unfortunately, the State of Haryana, is still not satisfied with the three strong judgments by three different forums given against the State and is still quite anxious and keen to grab the property of the defendants in a clandestine manner on the plea of adverse possession.

26. In a democracy, governed by rule of law, the task of protecting life and property of the citizens is entrusted to the police department of the government. In the instant case, the suit has been filed through the Superintendent of Police, Gurgaon, seeking right of ownership by adverse possession.

27. The revenue records of the State revealed that the disputed property stood in the name of the defendants. It is unfortunate that the Superintendent of Police, a senior official of the Indian Police Service, made repeated attempts to grab the property of the true owner by filing repeated appeals before different forums claiming right of ownership by way of adverse possession.

28. The citizens may lose faith in the entire police administration of the country that those responsible for the safety and security of their life and property are on a spree of grabbing the



properties from the true owners in a clandestine manner.

29. A very informative and erudite Article was published in Neveda Law Journal Spring 2007 with the title ‘Making Sense Out of Nonsense: A Response to Adverse Possession by Governmental Entities’. The Article was written by Andrew Dickal. Historical background of adverse possession was discussed in that article.

Historical background

30. The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of “seisin” from his ancestry. Many felt that the original law that relied on “seisin” was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title.

31. The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity.

32. During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land

owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land.

33. The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus to the title of the possessor and prevent fanciful claims from erupting. The concept of adverse possession exits to cure potential or actual defects in real estate titles by putting a statute of limitation on possible litigation over ownership and possession. A landowner could be secure in title to his land; otherwise, long-lost heirs of any former owner, possessor or lien holder of centuries past could come forward with a legal claim on the property. Since independence of our country we have witnessed registered documents of title and more proper, if not perfect, entries of title in the government records. The situation having changed, the statute calls for a change.*

34. In Hemaji Waghaji Jat v. Bhikhabhai

Khengarbhai Harijan and Others, (2009) 16 SCC 517 [= (2008) 2 LAW ISC-69] (one of us Bhandari, J.), this Court had an occasion to examine the English and American law on “adverse possession”. The relevant paras of that judgment (Paras 24 and 26 to 29) are reproduced as under:

“24. In a relatively recent case in P.T.

Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, this Court again had an occasion to deal with the concept of adverse possession in detail. The Court also examined the legal position in various countries particularly in English and American systems. We deem it appropriate to reproduce relevant passages in extenso. The Court dealing with adverse

* Registered documents and ‘more proper’ entries? There is a

serious, popular joke: per the present law and practice, even Charminar can be registered by a tactful grabber! - IMS.



possession in paras 5 and 6 observed as under (SCC pp. 66-67):

“5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a

typical adverse possession lie in it being

open, continuous and hostile. (See Downing v.

Bird, 100 So 2d 57 (Fla 1958), Arkansas

Commemorative Commission v. City of Little

Rock, 227, Ark 1085 : 303 SW 2d 569 (1957); Monnot v. Murphy, 207 NY 240 : 100 NE 742 (1913); City of Rock Springs v. Sturm, 39 Wyo 494 : 273 P 908 : 97 ALR 1 (1929).)

6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d,

p. 81. It is important to keep in mind while

studying the American notion of adverse

possession, especially in the backdrop of

limitation statutes, that the intention to

dispossess cannot be given a complete go-by.

Simple application of limitation shall not be

enough by itself for the success of an adverse

possession claim).”

35. This person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to

clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the

European Commission.♦ This Court in Revamma

(supra) observed that to understand the true nature of adverse possession, Fairweather v. St

Marylebone Property Co., [1962] 2 WLR 1020 : [1962] 2 All ER 288, can be considered where House of Lords referring to Taylor v. Twinberrow, [1930] 2 K.B. 16, termed adverse possession as a negative and consequential right effected only because somebody else's positive right to access the court is barred by operation of law. As against the rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property.

36. The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that

context.♠

♦ On the contrary, right to property, once a fundamental

right, is no longer so in our country; it is a mere statutory right now. It seems registration in England confers title but not so in our Indian law even now. - IMS.

♠ As stated in f.n. ante, the situation is not so in our country where right to property is deliberately taken out from the chapter on fundamental rights; so it would be ridiculous to call it a human right here. - IMS.



37. The changing attitude of the English Courts is quite visible from the judgment of Beaulane

Properties Ltd. v. Palmer, (2005) 3 WLR 554. The Court here tried to read the human rights position in the context of adverse possession. But what is commendable is that the dimension of human rights have widened so much that now property dispute issues are also being raised within the contours of human rights. With the expanding jurisprudence of the European Courts of Human Rights, the Court has taken an unkind view to the concept of adverse possession.

38. Paragraphs from 26 to 29 of Hemaji Waghaji

Jat (supra) are set out as under:-

26. With the expanding jurisprudence of the European Court of Human Rights, the Court has taken an unkind view to the concept of adverse possession in the recent judgment of JA Pye

(Oxford) Ltd. v. United Kingdom (2005) 49 ERG 90 [= (2008) 2 LAW 227 (ECHR)] which concerned the loss of ownership of land by virtue of adverse possession. In the said case, “the applicant company was the registered owner of a plot of 23 hectares of agricultural land. The owners of a property adjacent to the land, Mr and Mrs Graham (the Grahams) occupied the land under a grazing agreement. After a brief exchange of documents in December 1983 a chartered survey or acting for the applicants wrote to the Grahams noting that the grazing agreement was about to expire and requiring them to vacate the land.” The Grahams continued to use the whole of the disputed land for farming without the permission of the applicants from September 1998 till 1999. In 1997, Mr Graham moved the Local Land Registry against the applicant on the ground that he had obtained title by adverse possession. The Grahams challenged the applicant company’s claims under the Limitation Act, 1980 (the 1980 Act) which provides that a person cannot bring an action to recover any land after the expiration of 12 years of adverse possession by another.

27. The judgment was pronounced in JA Pye

(Oxford) Ltd. v. Graham (2000) 3 WLR 242 : 2000 Ch 676. The Court held in favour of the Grahams but went on to observe the irony in law of adverse possession. The court observed that

the law which provides to oust an owner on the basis of inaction of 12 years is “illogical and

disproportionate”. The effect of such law would “seem draconian to the owner” and “a windfall for the squatter”. The court expressed its astonishment on the prevalent law that ousting an owner for not taking action within limitation is illogical. The applicant company aggrieved by the said judgment filed an appeal and the Court of Appeal reversed the High Court decision. The Grahams then appealed to the House of Lords, which, allowed their appeal and restored the order of the High Court.

28. The House of Lords in JA Pye (Oxford) Ltd.

v. Graham (2003) 1 AC 419 : (2002) 3 WLR 221 : (2002) 3 All ER 865 (HL), observed that the Grahams had possession of the land in the ordinary sense of the word, and, therefore, the applicant company had been dispossessed of it within the meaning of the Limitation Act of 1980.

29. We deem it proper to reproduce the relevant portion of the judgment in P.T. Munichikkanna

Reddy v. Revamma (2007) 6 SCC 59: (SCC p. 79, paras 51-52):

“51. Thereafter the applicants moved the European Commission of Human Rights (ECHR) alleging that the United Kingdom law on adverse possession, by which they lost land to a neighbour, operated in violation of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’).

52. It was contended by the applicants that they had been deprived of their land by the operation of the domestic law on adverse possession which is in contravention with Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’), which reads as under:

‘Every natural or legal person is entitled to the peaceful enjoyment of his possession. No one shall be deprived of his possession except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general



interest or to secure the payment of taxes or other contributions or penalties.’ ”

This Court in Revamma case also mentioned that the European Council of Human Rights importantly laid down three-pronged test to judge the interference of the Government with the right of “peaceful enjoyment of property”: (SCC p. 79, para 53)

“53. ... [In] Beyeler v. Italy [GC] No. 33202 of 1996 §§ 108-14 ECHR 2000-I, it was held that the ‘interference’ should comply with the principle of lawfulness and pursue a legitimate aim (public interest) by means reasonably proportionate to the aim sought to be realised.”

The Court observed (Revamma case 79-80, paras

54-56):

“54. ... ‘The question nevertheless remains whether, even having regard to the lack of care and inadvertence on the part of the applicants and their advisers, the deprivation of their title to the registered land and the transfer of beneficial ownership to those in unauthorized possession struck a fair balance with any legitimate public interest served. In these circumstances, the Court concludes that the application of the provisions of the 1925 and 1980 Acts to deprive the applicant companies of their title to the registered land imposed on them an individual and excessive burden and upset the fair balance between the demands of the public interest on the one hand and the applicants’ right to the peaceful enjoyment of their possessions on the other. There has therefore been a violation of Article 1 of Protocol 1.’

55. The question of the application of Article 41 was referred for the Grand Chamber Hearing of the ECHR. This case sets the field of adverse possession and its interface with the right to peaceful enjoyment in all its complexity.

56. Therefore it will have to be kept in mind the courts around the world are taking an unkind view towards statutes of limitation overriding

property rights.” ♣

♣ (2008) 2 LAW ISC-69, paras 24-30 at ISC-74/76. However,

since then, the Grand Chamber of the European Court of

Human Rights carefully considered the matter and

expressed the opinion that the English law of adverse

possession is not incompatible with Convention Rights:

“The Grand Chamber of the European Court of Human Rights

39. In Hemaji Waghaji Jat case, this Court ultimately observed as under:

“32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation.”

Fifth Amendment of the U.S. Constitution –

a principle of a civilized society

40. Another important development in the protection of property rights was the Fifth Amendment. James Madison was the drafter and key supporter for the Fifth Amendment. The Fifth Amendment states: “nor shall private property be

taken for public use, without just compensation”. The main issue is to pay just compensation for acquiring the property. There are primarily two situations when a landowner may obtain compensation for land officially transferred to or depreciated by the government. First, an owner may be entitled to compensation when a governmental entity intentionally acquires private

has decided (by 10-7) that the English law of adverse

possession (as it relates to claims under the law prior to the

Land Registration Act 2002) is not incompatible with the

Convention. Pye, which lost land under that law, is not therefore

entitled to damages from the UK government.” - J.A. Pye

(Oxford) Ltd v The United Kingdom (Application no.

44302/02), 30 August 2007. It is regrettable that our SC

did not notice this (subsequent) landmark decision. - IMS.



property through a formal condemnation proceeding and without the owner’s consent. The State’s power to take property is considered inherent through its eminent domain powers as a sovereign. Through the condemnation proceedings, the government obtains the necessary interest in the land, and the Fifth Amendment requires that the property owner be compensated for this loss.

41. The second situation requiring compensation under Fifth Amendment occurs when the government has not officially acquired private property through a formal condemnation proceeding, but “nonetheless takes property by physically invading or appropriating it”. Under this scenario, the property owner, at the point in which a “taking” has occurred, has the option of filing a claim against the government actor to recover just compensation for the loss. When the landowner sues the government seeking compensation for a taking, it is considered an inverse condemnation proceeding, because the landowner and not the government is bringing the cause of action.

42. We inherited this law of adverse possession from the British. The Parliament may consider abolishing the law of adverse possession* or at least amending and making substantial changes in law in the larger public interest. The Government instrumentalities – including the police – in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the * This part is a very unwise and uncalled for suggestion.

How I wish the Court has not trodden into a field, not

their own, and encumbered the legislature with such

suggestions which, unfortunately in our country, are

taken akin to to-be-complied-with judicial directives. Of

course, any law requires changes with passing times and

changing situations, certainly there is a need to curb the

land-grabbing by neo-feudal cum capitalist lords aided

and abetted by sundry politicians and bureaucrats and

appropriate laws may be passed as and when necessitated

in consonance with the aspirations of the people and

wisdom of their representatives to achieve real and

requisite socio-economic justice. - IMS.

justice system’s legitimacy. The Government should protect the property of a citizen – not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors – some of whom may be poor – to pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case.

43. The Parliament must seriously consider at least to abolish “bad faith” adverse possession, i.e., adverse possession achieved through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief.

44. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. Such an extension would help to ensure that successful claimants have lived on the land for generations, and are therefore less likely to be individually culpable for the trespass (although their forebears might). A longer statutory period would also decrease the frequency of adverse possession suits and ensure that only those claimants most intimately connected with the land acquire it,



while only the most passive and unprotective (sic) owners lose title.

45. Reverting to the facts of this case, if the Police department of the State with all its might is bent upon taking possession of any land or building in a clandestine manner, then, perhaps no one would be able to effectively prevent them.

46. It is our bounden duty and obligation to ascertain the intention of the Parliament while interpreting the law. Law and Justice, more often than not, happily coincide – only rarely we find serious conflict. The archaic law of adverse possession is one such. A serious re-look is absolutely imperative in the larger interest of the people.

47. Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law - to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.

48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change.

49. If the protectors of law become the grabbers of the property (land and building), then, people will be left with no protection and there would be a total anarchy in the entire country.

50. It is indeed a very disturbing and dangerous trend. In our considered view, it must be arrested without further loss of time in the larger public interest. No Government Department, Public Undertaking, and much less the Police Department should be permitted to perfect the title of the land or building by invoking the provisions of adverse possession and grab the property of its own citizens in the manner that has been done in this case.

51. In our considered view, there is an urgent need for a fresh look of the entire law on adverse

possession. We recommend the Union of India to immediately consider and seriously deliberate either abolition of the law of adverse possession and in the alternate to make suitable amendments in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law.

52. This Special Leave Petition is dismissed with costs of Rs.50,000/- (Rupees Fifty Thousand only) to be paid by the State of Haryana for filing a totally frivolous petition and unnecessarily wasting the time of the Court and demonstrating its evil design of grabbing the properties of lawful owners in a clandestine manner. The costs be deposited within four weeks from the date of pronouncement of this judgment. In this petition, we did not issue notice to the defendants, therefore, we direct that the costs be deposited with the National Legal Services Authority for utilizing the same to enable the poor litigants to contest their cases.

53. This Special Leave Petition being devoid of any merit is accordingly dismissed.

* * * * *

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ISC-202 Union of India v. Hassan Ali Khan & Anr. (IND-SC) (2011) 2 LAW


(2011) 2 LAW ISC-202


AT NEW DELHI

Criminal Appellate Jurisdiction

Criminal Appeal No. 1883 of 2011

(arising out of SLP (Crl.) No. 6114/2011)

Date of Judgment♦♦♦♦: Friday, 30 September 2011

Union of India … Appellant

Versus

Hassan Ali Khan & Anr. … Respondents.


CORAM:

ALTAMAS KABIR, J.

SURINDER SINGH NIJJAR, J.

For Appellant (s): Mr. H.P. Raval, A.S.G. Mr. Rajiv Nanda, Advocate. Mr. T.A. Khan, Advocate. Mr. Anirudh Sharma, Advocate. Mr. Anando Mukherjee, Advt. Mr. B. Krishna Prasad, Advocate-on-record.

For Respondent (s): Mr. Ishwari Prasad A. Bagaria, Advocate. Mr. Vijay Bhaskar Reddy, Advt. Mr. Santosh Paul, Advocate Mrs. Uma Ishwari Bagaria, Advt. Ms. Arti Singh, Advt.-on-record. Mr. Arvind Gupta, Advocate Ms. Mohita Bagati, Advocate. Mr. Kamal Nijhawan, Advocate. Mr. Vikrant Sabne, Advocate. Mr. Prateek Ishwari Prasad Bagaria, Advt. Ms. Asha G. Nair, Advocate-on-record.

* * * Head note:

Criminal Law – Bail granted to the accused – distinction

between grounds for cancellation of bail u/s 439(2) Cr.P.C.

and appeal against the order granting bail to be made – in

the instant case the appeal against order of granting bail is

♦ Courtesy: Supreme Court at http://judis.nic.in/. Emphases

in bold ours - IMS.

allowed, the order set aside and bail cancelled – The distinction between an application for cancellation of bail U/s 439(2) Cr.P.C. and an appeal preferred against an order granting bail cannot be ignored. The two stand on different footings. While the ground for cancellation of bail would relate to post-bail incidents, indicating misuse of the said privilege, an appeal against an order granting bail would question the very legality of the order passed. In the circumstances peculiar to the instant case the High Court order needs to be interfered with; accordingly, the appeal allowed, setting aside the impugned judgment and order of the High Court granting bail and bail granted to the 1st Respondent canceled. - Paras 27-28, p. ISC-208.

* * *

O R D E R

ALTAMAS KABIR, J.

1. Leave granted.

2. The Special Leave Petition out of which this Appeal arises has been filed against the judgment and final order dated 12th August, 2011, passed by the Bombay High Court in Crl. Bail Application No. 994 of 2011, whereby the High Court granted bail to the Respondent No.1, Hassan Ali Khan, in connection with Special Case No.1 of 2011, wherein the Respondent No.1 is the Accused No.1.

3. The allegation against the Respondent No.1 and the other accused is that they have committed an offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002, hereinafter referred to as ‘the PML Act’. The said case has been registered on the basis of a complaint filed by the Deputy Director, Directorate of Enforcement, Ministry of Finance, Department of Revenue, Government of India, on 8th January, 2007, on the basis of Enforcement Case Information Report No.02/MZO/07 based on certain information and documents received from the Income Tax Department. On the said date, the Income Tax Department carried out a search in the premises owned and/or possessed by the Respondent No.1 and a sum of Rs.88,05,000/- in cash was found in his residence at Peddar Road, Mumbai, and was seized. A number of

(2011) 2 LAW Union of India v. Hassan Ali Khan & Anr. (IND-SC) ISC-203


imported watches and some jewellery were also found and seized during the search.

4. The search also revealed that the Respondent No.1 had purchased an expensive car, worth about Rs.60 lakhs, from one Anil Shankar of Bangalore through one Sheshadri and that he had paid till then a sum of Rs.46 lakhs towards purchase of the said car. It also appears that the documents which were recovered by the Income Tax Department contained several transfer instructions said to have been issued by the Respondent No.1 for transfer of various amounts to different persons from the bank accounts held by him outside India. The said amounts forming the subject matter of the instructions issued by the Respondent No.1 ran into billions of dollars. The Income Tax Department assessed the total income of the Respondent No.1 for the Assessment Years 2001-02, 2006-07 and 2007-08 as Rs.110,412,68,85,303/-. Furthermore, during the investigation, the Directorate of Enforcement also obtained a document said to have been signed by the Respondent No.1 on 29th June, 2003, which was notarized by one Mr. Nicolas Ronald Rathbone Smith, Notary Public of London, on 30th June, 2003.

5. Further, an investigation was conducted under the Foreign Exchange Management Act, 1999, hereafter referred to as ‘FEMA’. Show-cause notices were issued to the Respondent No.1 for alleged violation of Sections 3A and 4 of FEMA for dealing in and acquiring and holding foreign exchange to the extent of US$ 80,004,53,000, equivalent to Rs.36,000 crores approximately in Indian currency, in his account with the Union Bank of Switzerland, AG, Zurich, Switzerland.

6. Inquiries also revealed that Shri Hassan Ali Khan had obtained at least three Passports in his name by submitting false documents, making false statements and by suppressing the fact that he already had a Passport. In addition to the above, it was also indicated that investigations had revealed that he had sold a diamond from the collection of the Nizam of Hyderabad and had routed the sale proceeds through his account in

Sarasin Bank in Basel, Switzerland, to the Barclays Bank in the United Kingdom.

7. Based on the aforesaid material, the Directorate of Enforcement, Mumbai Zonal Office, arrested the Respondent No.1 on 7th March, 2011, and, thereafter, he was produced before the Special Judge, PMLA, Mumbai, on 8th March, 2011, and was remanded in custody. Subsequently, by an order dated 11th March, 2011, the Special Judge, PMLA, rejected the prayer made on behalf of the Directorate of Enforcement for remand of the Respondent No.1 to its custody and released him on bail. However, since a Public Interest Litigation was pending in this Court in which the Directorate of Enforcement was required to file a status report in respect of the investigations carried out in connection with the case, the fact that the Respondent No.1 had been released on bail was brought to the notice of this Court and this Court stayed the operation of the bail order and authorized the detention of the Respondent No.1 in custody, initially for a period of four days. The Union of India thereupon filed Special Leave Petition (Crl.) No.2455 of 2011 and upon observing that the material made available on record prima facie discloses the commission of an offence by the Respondent No.1 punishable under the provisions of the PML Act, this Court vide order dated 29th March, 2011, disposed of the appeal as well as the Special Leave Petition and set aside the order dated 11th March, 2011, of the Special Judge, PMLA, Mumbai, and directed that the Respondent No.1 be taken into custody. Thereafter, the Respondent No.1 was remanded into custody from time to time and the complaint came to be filed on 6th May, 2011. A further prayer for bail was thereafter made on behalf of the Respondent No.1 on 1st July, 2011, but the same was dismissed by the Special Judge, PMLA, Mumbai, on the same day.

8. The said order of the Special Judge, PMLA, Mumbai, rejecting the Respondent No.1’s prayer for bail was challenged before the Bombay High Court in Bail Application No.994 dated 2nd July,



2011. After a contested hearing, the Bombay High Court by its order dated 12th August, 2011, granted bail to the Respondent No.1 and the said order is the subject matter of the present proceedings before this Court.

9. Learned Additional Solicitor General, Mr. Haren P. Raval, appearing for the Union of India, submitted that the High Court failed to appreciate the astronomical amounts of foreign exchange dealt with by the Respondent No.1, for which there was no accounting and in respect whereof the Income Tax Department had for the Assessment years 2001-02 to 2007-08 assessed the total income as Rs. 110,412,68,85,303/-. The learned ASG also submitted that transfer of the huge sums from one bank to another was one of the methods adopted by persons involved in money-laundering to cover the trail of the monies which were the proceeds of crime. The learned ASG contended that the large sums of unaccounted money, with which the Respondent No.1 had been dealing, attracted the attention of the Revenue Department and on investigation conducted under the Foreign Exchange Management Act, 1959, (FEMA), show cause notices were issued to the Respondent No.1 for alleged violation of Sections 3A and 4 thereof for acquiring and holding foreign exchange and dealing with the same to the extent of US$ 80,004,53,000, equivalent to Rs.36,000/- crores, approximately, in Indian currency, in his account with the Union Bank of Switzerland, AG, Zurich, Switzerland.

10. Mr. Raval submitted that the Respondent No.1, Shri Hassan Ali Khan, used the different passports which he had acquired by submitting false documents, to open bank accounts in foreign countries to engage in the laundering of tainted money which brought such transactions squarely within the scope and ambit of Section 3 of the PML Act, 2002. Mr. Raval submitted that Section 3 of the aforesaid Act by itself was an offence since it provides that any person directly or indirectly attempting to indulge in or knowingly assisting or knowingly being a party or actually

involved in any process or activity connected with the proceeds of crime and projecting it as untainted property, would be guilty of the offence of money-laundering. The learned ASG submitted that the key expressions used in Section 3 are “proceeds of crime” and “projecting it as an untainted property”. In other words, in order to prove an offence of money-laundering, it has to be established that the monies involved are the proceeds of crime and having full knowledge of the same, the person concerned projects it as untainted property. The process undertaken in doing so, amounts to be offence of money-laundering.

11. In this connection, the learned ASG referred to Section 2(u) of the PML Act, which describes “proceeds of crime” to mean any property derived or obtained, directly or indirectly by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. He, thereafter, referred to the definition of “scheduled offence” in Section 2(y) of the above Act to mean (i) the offences specified under Part A of the Schedule; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences amounted to Rs. 30 lakhs or more.

12. The learned ASG submitted that the enormous sums of money held by Shri Hassan Ali Khan in foreign accounts in Switzerland, United Kingdom and Indonesia and the transactions in respect thereof, prima facie indicated the involvement of the Respondent No.1 in dealing with proceeds of crime and projecting the same as untainted property, which was sufficient to attract the provisions of Section 3 of the PML Act, 2002. The learned ASG submitted that under Section 24 of the aforesaid Act, when a person is accused of having committed an offence under Section 3, the burden of proving that the monies involved were neither proceeds of crime nor untainted property, is on the accused. It was urged that once a definite allegation had been made against Shri Hassan Ali Khan on the basis of documents seized, that the



monies in his various accounts were the proceeds of crime, the burden of proving that the money involved was neither the proceeds of crime nor untainted [sic - tainted], shifted to him and it was upto him to prove the contrary. The learned ASG submitted that Shri Hassan Ali Khan had failed to discharge the said burden and hence the large sums of money in the several accounts of the Respondent No.1 would have to be treated as tainted property, until proved otherwise. The learned ASG submitted that the Respondent No.1 had himself made certain statements which were recorded under Section 50 of the PML Act, parts whereof were not hit by the provisions of Section 27 of the Indian Evidence Act.

13. The learned ASG also referred to the provisions of Section 45 of the aforesaid Act which make offences under the said Act cognizable and non-bailable and also provides that notwithstanding the provisions of the Code of Criminal Procedure, no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule to the Act, is to be released on bail or on his own bond, unless the Public Prosecutor has been given an opportunity to oppose the application for such release and where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The learned ASG submitted that an exception had been made for persons under the age of 16 years or a woman or a person who is sick or infirm.

14. Referring to Part A of the Schedule to the PML Act, the learned ASG submitted that the same had been divided into paragraphs 1 and 2. While paragraph 1 deals with offences under the Indian Penal Code under Sections 121 and 121-A thereof, paragraph 2 deals with offences under the Narcotic Drugs & Psychotropic Substances Act, 1985. The learned ASG submitted that, on the other hand, Para B is divided into five paragraphs. Paragraph 1 deals with offences

under the Indian Penal Code, while paragraph 2 deals with offences under the Arms Act, 1959. Paragraph 3 deals with offences under the Wild Life (Protection) Act, 1972, paragraph 4 deals with offences under the Immoral Traffic (Prevention) Act, 1956, and paragraph 5 deals with offences under the Prevention of Corruption Act, 1988. The learned ASG submitted that the facts of the case attracted the provisions of paragraph 1 of Part A of the Schedule, since the money acquired by Shri Hassan Ali Khan, besides being the proceeds of crime, is also connected with transactions involving the international arms dealer, Adnan Khashoggi. The learned ASG submitted that the same became evident from the notarized document which had been obtained by the Directorate of Enforcement during the course of investigation which had been signed by the Respondent No.1 on 29th June, 2003, at London and notarized by Mr. Nicolas Ronald Rathbone Smith, Notary Public of London, England, on 30th June, 2003. It was also submitted that the said document certified the genuineness of the signature of the Respondent No.1 and also mentioned his Indian Passport No. Z-1069986. The learned ASG further contended that the said notarized document also referred to Dr. Peter Wielly, who was a link between Mr. Adnan Khashoggi, and one Mr. Retro Hartmann on whose introduction the Respondent No.1 opened an account at UBS, Singapore, and was also linked with Mr. Kashinath Tapuriah. The learned ASG submitted that there were other materials to show the involvement of Dr. Wielly in the various transactions of the Respondent No.1, Hassan Ali Khan.

15. Further submissions on behalf of the

Appellant were advanced by Mr. A. Mariar-

putham, learned Senior Advocate, who referred to

the purported theft of the jewellery of the Nizam

of Hyderabad and the sale of the same by the

Respondent No.1, on account whereof US$

700,000 had been deposited by the Respondent

No.1 in the Barclays Bank in London.



16. Mr. Mariarpurtham then submitted that although the High Court had relied on the provisions of Section 167(2) Cr.P.C. in granting bail to the Respondent No.1, the said provisions were not attracted to the facts of this case since charge sheet had already been filed within the statutory period and the High Court could not, therefore, have granted statutory bail to the Respondent No.1 on the ground that it had been submitted on behalf of the Appellant that it would still take some time for the Appellant to commence the trial. Mr. Mariarputham submitted that while the Respondent No.1 had been arrested on 7th March, 2011 and had been produced before the Special Judge and remanded to custody on 8th March, 2011, the charge sheet had been filed on 6th May, 2011 within the prescribed period of 60 days. It was submitted that the High Court had wrongly interpreted the provisions of Section 167(2) Cr.P.C. in granting bail to the Respondent No.1.

17. In support of his submissions, the learned counsel referred to the Constitution Bench decision of this Court in Sanjay Dutt v. State

through CBI, Bombay (II) [(1994) 5 SCC 410], wherein it was held that the indefeasible right of an accused to be released on bail by virtue of Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, was enforceable only prior to the filing of the challan and it did not survive or remain enforceable on the challan being filed, if not already availed of. Their Lordships held further that if the right to grant of statutory bail had not been enforced till the filing of the challan, then there was no question of its enforcement thereafter, since it stood extinguished the moment the challan was filed because Section 167(2) Cr.P.C. ceased to have any application. Reference was also made to the decision of a Three Judge Bench of this Court in Uday Mohanlal Acharya v. State of

Maharashtra [(2001) 5 SCC 453], wherein the scope of Section 167(2) Cr.P.C. and the proviso thereto fell for consideration and it was the majority view that an accused had an indefeasible right to be released on bail when investigation is

not completed within the specified period and that for availing of such right the accused was only required to file an application before the Magistrate seeking release on bail alleging that no challan had been filed within the period prescribed and if he was prepared to offer bail on being directed by the Magistrate, the Magistrate was under an obligation to dispose of the said application and even if in the meantime a charge-sheet had been filed, the right to statutory bail would not be affected. It was, however, clarified that if despite the direction to furnish bail, the accused failed to do so, his right to be released on bail would stand extinguished.

18. It was, therefore, submitted that the Bombay High Court had granted bail to the Respondent No.1 on an incorrect interpretation of the law and the said order granting bail was, therefore, liable to be set aside.

19. Appearing for the Respondent No.1, Hassan Ali Khan, learned counsel, Shri Ishwari Prasad A. Bagaria, firstly contended that an offence which did not form part of the scheduled offences referred to in Section 45 of the PML Act would not attract the provisions of Section 3 of the said Act. It was submitted that whatever be the amounts involved and even if the same had been unlawfully procured, the same might attract the provisions of the Income Tax Act or FEMA, but that would not satisfy the two ingredients of Section 3 which entails that not only should the money in question be the proceeds of crime, but the same had also to be projected as untainted property. Mr. Bagaria submitted that in the instant case all that has been disclosed against the Respondent No.1 is that he dealt with large sums of money, even in foreign exchange and operated bank accounts from different countries, which in itself would not indicate that the monies in question were the proceeds of crime. Mr. Bagaria also submitted that at no stage has it been shown that the said amounts lying in the accounts of the Respondent No.1 in Switzerland, the United Kingdom and Indonesia had been projected as untainted money. Furthermore, as far as the



allegation regarding the theft of the Nizam’s jewellery is concerned, except for mere allegations, there was no material in support of such submission in the face of the case made out by the Respondent No.1 that he had brokered the sale of some portions of the jewellery for which he had received a commission of US$30,000 which he had spent in Dubai.

20. Mr. Bagaria submitted that in the complaint, reference had been made in paragraph 13 thereof to “scheduled offences” which have been set out in sub-paragraphs 13.1 to 13.5. Mr. Bagaria pointed out that the offences indicated related to alleged offences under the provisions of the Indian Penal Code, the Passport Act, 1967 and the Antiquities and Art Treasures Act, 1972, which do not come either under Part A or Part B of the Schedule to the PML Act, 2002, except for the offences under the Indian Penal Code, the sections whereof, which have been included in paragraph 1 of Part B, are not attracted to the facts of this case. Mr. Bagaria submitted that as a result, none of the offences mentioned as scheduled offences in the charge-sheet were covered by the Schedule to the PML Act, 2002, and could at best be treated as offences under the Indian Penal Code, the Passport Act and the Antiquities and Art Treasures Act, 1972. On the question of the alleged absconsion [sic - absconding] of the Respondent No.1, Mr. Bagaria submitted that the said Respondent had not gone to Singapore on his own volition, but had there been taken by one Amalendu Kumar Pandey and Shri Tapuriah. Shri Pandey was subsequently made a witness and Shri Tapuriah was made a co-accused with the Respondent No.1.

21. Mr. Bagaria also contended that once bail had been granted, even if the special leave petition is maintainable, the power to cancel grant of such bail lies with the High Court or the Court of Sessions under Section 439(2) Cr.P.C. and, consequently, all the principles laid down by this Court relating to cancellation of bail, would have to be considered before the order granting bail could be cancelled. Mr. Bagaria submitted that

even though the offences were alleged to have been committed by the Respondent No.1 as far back as in the year 2007, till he was arrested on 7th May, 2011, there had been no allegation that he had in any manner interfered with the investigation or tampered with any of the witnesses. Mr. Bagaria submitted that even the apprehension expressed on behalf of the appellant that there was a possibility of the Respondent No.1 absconding to a foreign country on being released on bail, was without any basis, since such attempts, if at all made, could be secured by taking recourse to various measures. Mr. Bagaria submitted that such a submission could not be the reason for canceling the bail which had already been granted to the Respondent No.1.

22. Mr. Bagaria submitted that in the absence of any provisions in the PML Act that the provision thereof would have retrospective effect, the provisions of the PML Act could not also be made applicable to the Respondent No.1. Mr. Bagaria submitted that once it is accepted that the PML Act, 2002, would not apply to the Respondent No.1, the provisions of Section 45 thereof would also not apply to the Respondent’s case and his further detention would be unlawful. Mr. Bagaria concluded on the note that, in any event, the PML Act had been introduced in the Lok Sabha on 4th August, 1998, and all the offences alleged to have been committed by the Respondent No.1, were long prior to the said date.

23. Having carefully considered the submissions made on behalf of the respective parties and the enormous amounts of money which the Respondent No.1 had been handling through his various bank accounts and the contents of the note signed by the Respondent No.1 and notarized in London, this case has to be treated a little differently from other cases of similar nature. It is true that at present there is only a nebulous link between the huge sums of money handled by the Respondent No.1 and any arms deal or intended arms deals, there is no attempt on the part of the Respondent No.1 to disclose the



source of the large sums of money handled by him. There is no denying the fact that allegations have been made that the said monies were the proceeds of crime and by depositing the same in his bank accounts, the Respondent No.1 had attempted to project the same as untainted money. The said allegations may not ultimately be established, but having been made, the burden of proof that the said monies were not the proceeds of crime and were not, therefore, tainted shifted to the Respondent No.1 under Section 24 of the PML Act, 2002. For the sake of reference, Section 24 is extracted herein-below:-

“24. Burden of proof. – When a person is accused of having committed the offence under Section 3, the burden of proving that proceeds of crime are untainted property shall be on the accused.”

24. The High Court having proceeded on the basis that the attempt made by the prosecution to link up the acquisition by the Respondent No.1 of different Passports with the operation of the foreign bank accounts by the said Respondent, was not believable, failed to focus on the other parts of the prosecution case. It is true that having a foreign bank account and also having sizeable amounts of money deposited therein does not ipso facto indicate the commission of an offence under the PML Act, 2002. However, when there are other surrounding circumstances which reveal that there were doubts about the origin of the accounts and the monies deposited therein, the same principles would not apply. The deposit of US$ 700,000 in the Barclays Bank account of the Respondent No.1 has not been denied. On the other hand, the allegation is that the said amount was the proceeds of the sale of diamond jewellery which is alleged to have been stolen from the collection of the Nizam of Hyderabad. In fact, on behalf of the Respondent No.1 it has been submitted that in respect of the said deal, the Respondent No.1 had received by way of commission a sum of US$ 30,000 which he had spent in Dubai.

25. Although, at this stage, we are also not prepared to accept the convoluted link attempted

to be established by the learned ASG with the opening and operation of the bank accounts of the Respondent No.1 in the Union Bank of Switzerland, AG, Zurich, Switzerland, the amounts in the said bank account have not been sought to be explained by the Respondent No.1. We cannot also ignore the fact that the total income of the Respondent No.1 for the assessment years 2001-02 to 2007-08 has been assessed at Rs.110,412,68,85,303/- by the Income Tax Department and in terms of Section 24 of the PML Act, the Respondent No.1 had not been able to establish that the same were neither the proceeds of crime nor untainted property. In addition to the above is the other factor involving the notarized document in which the name of Adnan Khashoggi figures.

26. Lastly, the manner in which the Respondent No.1 had procured three different passports in his name, after his original passport was directed to be deposited, lends support to the apprehension that, if released on bail, the Respondent No.1 may abscond.

27. As far as Mr. Bagaria’s submissions regarding Section 439(2) Cr.P.C. are concerned, we cannot ignore the distinction between an

application for cancellation of bail and an appeal

preferred against an order granting bail. The two stand

on different footings. While the ground for cancellation

of bail would relate to post-bail incidents, indicating

misuse of the said privilege, an appeal against an order

granting bail would question the very legality of the

order passed. This difference was explained by this Court in State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21]. (emphases ours)

28. Taking a different view of the circumstances which are peculiar to this case and in the light of what has been indicated hereinabove, we are of the view that the order of the High Court needs to be interfered with. We, accordingly, allow the appeal and set aside the judgment and order of the High Court impugned in this appeal and cancel the bail granted to the Respondent No.1.

* * * * *



(Carried from p. 22→)

that the hearsay rule did not apply to it, not that it

was admissible for a non-testimonial purpose.

The appellant’s submissions

on admissibility in outline

23. The appellant put four submissions on

admissibility. First, the impugned representation

was irrelevant. Secondly, it did not express an

opinion. Thirdly, even if it did express an opinion, it

was not an opinion satisfying the condition stated

in s 78(a). Fourthly, that even if it were an opinion

satisfying the condition stated in s 78(a), it did not

satisfy the condition stated in s 78(b).

24. At the outset it should be said that s

78 conceals so many problems that it is desirable to

concentrate closely on the issues which the parties

wished to raise, lest other difficulties be prejudged

without proper argument.

Was the impugned representation relevant?

25. The appellant's first submission was that even if

the impugned representation satisfied s 78, it was

inadmissible because it was so ambiguous as to be

irrelevant. The point of the submission was that the

statement does not say "? Fall from vertical head

wall". A fall from top to bottom of the vertical face

was a fall of nearly 1.5m (ie 1.41m), and perhaps as

much as 1.9m if the respondent's head struck an

indentation out from the wall. Whatever the actual

extent of the fall, the impugned representation

referred to a fall of 1.5m onto concrete. It does not

say where the fall took place. A fall from one of the

non-vertical sides meant a vertical fall of the same

distance as a fall from the vertical face, albeit one

which might have been potentially less injurious

because the non-vertical sides might arrest its

velocity. An opinion that there had been a fall of

1.5m from one of the non-vertical sides would be

relevant within the meaning of s 55(1) because it

could rationally affect the assessment of the

probability of the existence of a fact in issue in the

proceeding: its relevance would lie in negating the

respondent's case that he fell from the vertical head

wall, not one of the sides. An opinion that there had

been a fall of 1.5m from the vertical head wall

would be relevant for the opposite reason: it would

support the respondent's case. But the appellant

submitted in effect that the statement was so

ambiguous that it had no probative value: it

supported neither the theory of a fall from the

vertical head wall nor the theory of a fall from one

of the sides, and for that reason did not satisfy s

55(1).

26. The appellant's submission as to relevance

should be accepted on the basis that the impugned

representation was so ambiguous that it could not

rationally affect the assessment of the probability of

a fall from the vertical head wall. Assuming,

contrary to that conclusion, that the impugned

representation was relevant, the question then

arises: What kind of statement was it? Was it, as the

Court of Appeal found, an opinion, admissible by

operation of s 78 as an exception to the opinion rule

in s 76?

Was the impugned representation an ‘opinion’?

27. The respondent's submission. The respondent

submitted that the impugned representation was an

opinion because it was an inference from observed and

communicable data. The data observed by the

ambulance officers were the respondent's injuries

and physical condition, his position in relation to

the vertical wall and the pool of dried fluids and the

scene generally.

28. The respondent's submission rejected. The

respondent's submission must be rejected. What the

ambulance officers did observe and could have

observed could have caused them to draw an

inference from the observations. But the present

question is whether they actually did do so, not whether

they could have. The question turns on the form of

what they said in the context in which they were

speaking. That is because what it means to raise a

query about something can vary with the context. "I

query whether that is so" can mean "That is

probably so, though I am not sure" or "That may

well be so, though I am not sure". But it can also

mean: "I raise a question about whether it is so", or

"I speculate whether it is so", or "I raise the

possibility that it is not so", or "I doubt that that is

so". It can even mean "I deny that that is so".

29. The appellant submitted that the impugned

representation did not state an inference that the

respondent had fallen 1.5m onto concrete. It did no

more than raise a question whether he had, or

speculate whether he had, or raise as a possibility

that he had.



30. The respondent's submission depends on the

idea that the ambulance officers drew an

inference from observed data. What data did they

observe?

31. The Court of Appeal in its first judgment said

that "the most important piece of information

which could throw light on what had happened

was the position of the [respondent's] body"14

.

And it also said: "Critical is understanding the

place of the body, its configuration and its

relationship to the surrounding structures."15

The

impugned representation revealed these things

indirectly, in the Court of Appeal's opinion,

because the makers of it saw the position and the

configuration, and for the Court of Appeal that

indirect revelation was the significance of the

impugned representation.

32. The force or otherwise of this reasoning

depends on the answers to two questions. Where

was the respondent when seen by the passers-by

and the ambulance officers? Was that his position

earlier, when he fell? Even on the Court of Appeal's

view, the ambulance officers' records said nothing

about the position of the respondent's body and its

relationship with the wall and the drain. And there

was no other evidence of where he was lying when

he was found. It cannot even be concluded that the

position which the respondent was in just after his

fall was the same as his position, whatever it was,

when help came.

33. Despite that lack of evidence, the Court of

Appeal in its first decision made two findings about

the data observed by the ambulance officers. The

first was that the impugned representation was

made by the ambulance officers “having the inert

unconscious body in front of them and they having

the advantage of being able to assess the position of

the body and its relationship with the wall and the

drain.”16 The second finding was that the impugned

14 Jackson v Lithgow City Council [2008] NSWCA 312; (2008)

Aust Torts Reports 81-981 at 62,466 [37]. 15 Jackson v Lithgow City Council [2008] NSWCA 312; (2008)

Aust Torts Reports 81-981 at 62,468 [56]. See also at 62,467

[45] and [47]. 16 Jackson v Lithgow City Council [2008] NSWCA 312; (2008)

Aust Torts Reports 81-981 at 62,467 [45].

representation was "some evidence of a position of

the body consistent with a view" that the respondent

fell from the vertical wall.17

34. The first finding was supported by a hospital

record made after the respondent had been taken to

Nepean Hospital stating that he was found

"unconscious". But the hospital record reflects a

chain, perhaps a long chain, of hearsay, and

contains errors. The first finding did not in fact long

survive. It was withdrawn in the second decision

because of a lack of support for it either in the

impugned representation or in other parts of the

ambulance officers' records. In the second decision,

Allsop P and Grove J accepted that the evidence

"was not sufficient to conclude that the ambulance

officers saw a still, prone and unconscious body".18

The ambulance officers' records identified a

"[d]ecreased level of consciousness", but that did

not lead to the conclusion that the ambulance

officers came upon the respondent "unconscious

and prone".19 And although the ambulance officers

may have been able to "assess" the position of the

respondent's body, there is no evidence that they did

so.

35. The second finding assumes, without proof,

that the respondent had not moved in any respect

between the moment he fell and the time when the

ambulance officers saw him. It is also invalidated

by the withdrawal of the first finding. The

ambulance officers' records recorded the respondent

as being "combative"; and while this may only have

been because painful stimuli were being

administered, it is not open to find that he was

incapable of changing his position. That meant that

the respondent did not establish that his body

position had not changed between when he fell and

when the ambulance officers saw him. The

respondent appeared to rely on Glasgow Coma

Scale readings which were described as "low", but

without expert medical opinion as to the likely

consequence that those readings had on the

respondent's capacity for physical movement after

the accident, the evidence has no probative value. 17 Jackson v Lithgow City Council [2008] NSWCA 312;

(2008) Aust Torts Reports 81-981 at 62,467 [47]. 18 Jackson v Lithgow City Council [2010] NSWCA 136 at [20]. 19 Jackson v Lithgow City Council [2010] NSWCA 136 at [18].



The respondent also contended that the fact that

while his extremities were cold his trunk was warm,

indicating an absence of circulation and therefore

movement, is a matter from which no conclusion

could be drawn without expert medical opinion

evidence. Indeed the Court of Appeal rightly

rejected the latter submission in its first decision.

36. In short, the material preceding the impugned

representation recorded what apparently were

personal observations by the makers of the

statement. But that material said nothing about what

could be observed of the precise location of the

respondent in relation to the physical features of the

location. And it said nothing about what the makers

of the statement actually observed in those respects.

37. Opinion that there was a question. The

appellant drew attention to the fact that, in the

second Court of Appeal decision, Allsop P (Grove J

agreeing) found that the Ambulance Service

statement was "an opinion, in the sense of an

inference drawn, that there was a question whether

[the respondent] had fallen the 1.5 metres onto

concrete."20 They also said that the facts observed

by the makers "caused them or one of them to raise

the question whether he did not fall from the 1.5

metre wall. It did not cause the maker to posit any

other possible cause."21 But, the appellant

submitted, to characterise the impugned

representation as an opinion that there was a

question whether there had been a 1.5m fall was to

render it inadmissible. In the circumstances of some

cases a statement that a question existed might be

an "opinion" within the meaning of s. 76. But in the

circumstances of this case anything less than a

statement that on the balance of probabilities there

had been a fall would be outside s. 76. An inference

that the accident happened in a particular way

would be an opinion. An inference that there was a

question whether it happened in a particular way

would not.

38. With respect, it is necessary to reject both the

appellant's submission and the Court of Appeal's

finding. The impugned representation cannot be

said to have stated an "opinion" even in the Court of

Appeal's sense. The ambulance officers' records are

20 Jackson v Lithgow City Council [2010] NSWCA 136 at [19]. 21 Jackson v Lithgow City Council [2010] NSWCA 136 at [19].

so shrouded in obscurity about what data they

observed and suggest so great an unlikelihood that

that data could support, or were seen as pointing to,

any definitive inference that it is not possible to find

on the balance of probabilities what the impugned

representation was stating. It is therefore not

possible positively to find that it stated an opinion.

Is s 78(a) satisfied?

39. On the other hand, if it is assumed that the

impugned representation did express an opinion, and a

relevant one, the next question is whether s 78(a) is

satisfied. Section 78(a) goes to questions of form. It

must be possible to extract from the form of what

the person stating the opinion said, construed in

context, that the opinion is about a "matter or

event", and that it is "based" on what the person

stating the opinion "saw, heard or otherwise

perceived" about that matter or event.

40. What matter or event? The appellant submitted

that the only matter or event about which the

opinion was expressed was the respondent's fall

which caused his injuries. The opinion expressed a

question about that fall. That was the point of the

respondent tendering it. In contrast, in the second

Court of Appeal decision Allsop P (Grove J

concurring) considered that the "matter or event"

was everything to be perceived about the

respondent at the scene – “his state of reduced

consciousness, his injuries, his position, the position

of blood and urine and the surrounding

structures.”22 If the Court of Appeal's approach

were correct, however, s 78(a) would not be

satisfied. While the matters to which the Court of

Appeal referred go to an opinion about the extent of

the respondent's injuries, the impugned

representation was not stating an opinion on that

subject, only about their cause. On that approach, s

78(a) would not be available because the position

would be analogous to that considered by the New

South Wales Court of Criminal Appeal in R v

Howard when it held inadmissible evidence of a

witness who had viewed some cannabis and

estimated the period since it had been harvested.

Hunt AJA, Grove and James JJ said23:

22 Jackson v Lithgow City Council [2010] NSWCA 136 at [20]. 23

R v Howard [2005] NSWCCA 25; (2005) 152 A Crim R 7

at 14 [29].



“The only matter or event was the viewing and

identification of the cannabis. The opinion

evidence was an assertion of something said to

have happened beforehand (harvest) and

specifying the time which must have elapsed

between the harvest and the viewing, a

progression which [the witness] did not purport

to see, hear, or otherwise perceive.”

41. Is it necessary for the holder of the opinion to

have witnessed the matter or event? In fact the

appellant's submission is correct: the opinion stated

a question about the "matter or event" of the fall. It

then submitted that since the persons who stated the

opinion did not see, hear or otherwise perceive

anything about the fall, their "opinion" could not

have been based on it, and hence it is outside s

78(a). The appellant submitted that s 78 only applies to

opinions given by those who actually witnessed the event

about which the opinion is given. That submission,

although it was contested by the respondent, is also

correct. (emphasis ours)

42. Authorities on witnessing matter or event. The

appellant referred to two authorities. In Smith v The

Queen24

Kirby J dealt with the opinion of two police

officers who had not witnessed a robbery that the

accused was one of the robbers. He said that it did not

satisfy s 78(a) because it was only based on their

examination of security photographs recording the

robbery: it was not based on what they "saw, heard or

otherwise perceived about a matter or event". It was

not necessary for other members of the Court to deal

with this point. In the other case, Angel v Hawkesbury

City Council,25

the Court of Appeal of the Supreme

Court of New South Wales (Beazley and Tobias JJA,

Spigelman CJ concurring) held that a conclusion

about the "deceiving" nature of a defective slab in a

footpath was within s 78(a), because it was based on

what a witness had seen at the scene of the accident

moments after it had occurred. The case is

distinguishable from Smith v The Queen, but the

Court's reasoning is not inconsistent with that of

Kirby J. In the language of s 78, the Court described

the "matter" to which the witness's "perception"

related as "the effect on the visibility of the defective 24

[2001] HCA 50; (2001) 206 CLR 650 at 669-670 [60];

[2001] HCA 50. 25

[2008] NSWCA 130; (2008) Aust Torts Reports 81-955 at

61,756-61,758 [51]-[56].

slab of the shadow over it at the time."26

The witness

perceived that personally. In contrast, here the

"matter" was the respondent's fall, which the

ambulance officers had not perceived personally.

43. Ordinary meaning of "perceived". The approach

of Kirby J corresponds with one of the ordinary

meanings of "perceive" – to observe by one of the five

senses of sight, hearing, smell, taste or touch. That is

the first of the two meanings which the Macquarie

Dictionary gives for "perceive"27

:

"1. to gain knowledge of through one of the senses;

discover by seeing, hearing, etc. 2. to apprehend

with the mind; understand".

It is also the third meaning of "perceive" given by

the Oxford English Dictionary28

:

“To apprehend (an external object) through one of

the senses (esp sight); to become aware of by sight,

hearing, or other sense; to observe; 'to discover by

some sensible effects'.”

The view that "perceived" is used in s 78(a) in the

first Macquarie and the third Oxford meanings is

supported by the use of the words "saw, heard or

otherwise" before "perceived". Kirby J's approach is

also supported by the fact that the expression "saw,

heard or otherwise perceived" appears in s 69(5), as

part of a definition of "personal knowledge of a

fact": the meaning there plainly corresponds with

the first Macquarie and the third Oxford meanings.

For what it is worth, that construction of s

78(a) appears to correspond with the intention of 26

[2008] NSWCA 130; (2008) Aust Torts Reports 81-955 at

61,757 [54]. 27

Federation edition, (2001), vol 2 at 1417. In Connex Group

Australia Pty Ltd v Butt [2004] NSWSC 379 at [21]- [27]

White J held admissible a lay opinion in a document

admitted under s 64(3) giving the effect of a telephone

conversation as distinct from its precise words. In the

course of doing so he said of the person who expressed the

opinion: "I include in his perception of the conversation his

understanding of it. A person's perception includes what the

person understands about the matter perceived of which he

or she has gained knowledge through the senses." He then

cited the first Macquarie meaning. He criticised other

authorities for adopting an unduly narrow approach to s

78. It is not necessary to decide in this appeal whether that

criticism is correct, and whether an "understanding" is

always within "perception"; it suffices to say that the quoted

passage is limited to conversations, and does not seem

wrong when so limited. 28

2nd

ed (1989), vol XI at 520.



the Australian Law Reform Commission, which

spoke of “the witness' personal perception of a

matter or event” and frequently used words to that

effect.29

44. Respondent’s construction. The respondent

rejected the construction of s 78(a) propounded by

the appellant on the ground that to limit s 78 “to

those witnesses who actually saw the fall renders

the section otiose, because such evidence would be

direct evidence.” He submitted that on the

appellant's construction s 78 “would have no

function whatever because it would leave no room

for inferences and mean that opinions in relation to

observations or perceptions after the event could

not be put in.” The respondent submitted that s

78 “clearly envisages not just what has been

observed in relation to a particular event, but the

opinions in relation to the surrounding

circumstances. The words in [s] 78(a) 'or otherwise

perceived' clearly intended that.” That does not

follow. The respondent's submission as a whole

must fail. Section 78 would have a function even on

the appellant's construction. It would have the same

broad function as the corresponding common law

rule.

45. Function of common law rule. The common

law permitted the reception of non-expert opinion

evidence where it was very difficult for witnesses to

convey what they had perceived about an event or

condition without using rolled-up summaries of lay

opinion – impressions or inferences – either in lieu

of or in addition to whatever evidence of specific

matters of primary fact they could give about that

event or condition. The usual examples are age,

sobriety, speed, time, distance, weather,

handwriting, identity, bodily health and emotional

state, but a thorough search would uncover very

many more.30 The problems which arise in

examples falling into this category would have been

reduced, though not completely solved, if, at the 29 Australia, The Law Reform Commission, Evidence,

Report No 26, (1985), vol 1 at 410-411 [739]-[740]. For

the use to be made of the report, see Dasreef Pty Ltd v

Hawchar (2011) 85 ALJR 694 at 721-722 [106]-[107];

[2011] HCA 21; 277 ALR 611 at 643-644; [2011] HCA 21. 30

See, for example, Wigmore, Evidence in Trials at Common

Law, Chadbourn rev (1978), vol 7 at 44-204, §§1933-1978.

time of the observation, the observer had foreseen

that one day he or she would be questioned by a

police detective or a barrister, for then the observer

might have made some conscious contemporaneous

attempt to sort out the primacy facts so as to

facilitate their future recollection and expression.

But in many cases, to endeavour to describe the

primary facts underlying the inference may be

ineffective or misleading without stating the

inference. The reason why it is very difficult for the

observer is that it is almost impossible to separate

the inferences from the primary facts on which they

are based, and often very difficult to identify and

recollect the primary facts themselves.

46. There is controversy about whether s 78 is

precisely identical with the common law.31

But it is

clear that s 78 is dealing with the same problem as the

common law did in instances within the category just

described. In words of Gibson J approved by

Wigmore:

“It is a good general rule that a witness is not to

give his impressions, but to state the facts from

which he received them, and thus leave the jury to

draw their own conclusion; and wherever the

facts can be stated, it is not to be departed from [32

].

But every man must judge of external objects

according to the impressions they make on his

31

In Guide Dog Owners' & Friends' Association Inc v Guide

Dog Association of New South Wales & ACT [1998] FCA

480; (1998) 154 ALR 527 at 531, Sackville J said:

"Section 78 substantially alters the common law ... While

lay opinion evidence was admissible in certain classes of

cases under the common law ..., s 78 expands the scope for

such evidence."

This is a common view: see, for example, Daniel v Western

Australia [2000] FCA 858; (2000) 178 ALR 542 at 546-

547 [17]. Its correctness depends on the assumption that the

common law "classes of cases" comprised a narrow closed

category – "an apparently anomalous miscellany of

'exceptions'": Australia, The Law Reform Commission,

Evidence, Report No 26, (1985), vol 1 at 410 [739]. To the

extent that the common law "exceptions" were very

numerous, and were only examples of a broader category,

the differences between the common law and s 78 dissolve. 32

This common law prohibition may now be qualified by a

difficult provision: s 80(a) of the Act. It provides:

"Evidence of an opinion is not inadmissible only

because it is about:

(a) a fact in issue or an ultimate issue."

Its meaning was not debated in these proceedings.



senses; and after all, when we come to speak of the

most simple fact which we have witnessed, we are

necessarily guided by our impressions. There are

cases where a single impression is made by

induction from a number of others; as, where we

judge whether a man is actuated by passion, we are

determined by the expression of his countenance,

the tone of his voice, his gestures, and a variety of

other matters: yet a witness speaking of such a

subject of inquiry, would be permitted directly to

say whether the man was angry or not. ... I take it,

that wherever the facts from which a witness

received an impression are too evanescent in their

nature to be recollected, or are too complicated to

be separated and distinctly narrated, his

impressions from these facts become evidence.”33

In words of Loomis J, also approved by Wigmore,

the principle rests:

“[O]n the ground of necessity, where the subject of

the inquiry is so indefinite and general as not to be

susceptible of direct proof, or where the facts on

which the witness bases his opinion are so

numerous and so evanescent that they cannot be

held in the memory and detailed to the jury

precisely as they appeared to the witness at the

time. ...

The very basis upon which ... this exception to the

general rule rests, is that the nature of the subject

matter is such that it cannot be reproduced or

detailed to the jury precisely as it appeared to the

witness at the time.”34

But the "impression" which the witness received must

be based on a "fact" which the witness perceived – as

Gibson J said, "the facts from which the witness

received an impression", or as Loomis J said, "the

subject matter ... precisely as it appeared to the

witness at the time." In contrast, the respondent's

submission appears to adopt the following account of

Basten JA35

:

“The ambulance officers appear to have reasoned

backwards from their perceptions of the

[respondent] when they first saw him, to his

33

Cornell v Green 10 Serg & Rawle 14 at 16 (Pa 1823)

(emphasis in original), quoted by Wigmore, Evidence in

Trials at Common Law, Chadbourn rev (1978), vol 7 at 12

§1918. 34

Sydleman v Beckwith 43 Conn 9 at 12-14 (1875), quoted by

Wigmore, Evidence in Trials at Common Law, Chadbourn

rev (1978), vol 7 at 13 §1918. 35

Jackson v Lithgow City Council [2010] NSWCA 136 at [65].

position at an earlier point in time, which they did

not see. Perceptions of the aftermath can properly

be described as perceptions 'about' the event which

led to that result.”

That is to give too wide a meaning to "about". There

is, with respect, no indication in the statutory language

that so wide a departure from the common law rule

was made.

Is s 78(b) satisfied?

47. The Court of Appeal's opinion. Allsop P and

Grove J concluded that s 78(b) was satisfied for the

following reasons36

:

“[H]ad the ambulance officers been called to give

evidence as to their perceptions of all the aspects of

[the respondent] and his surroundings, they may or

may not have been able to express themselves in a

way to give an account of their perceptions as to [the

respondent's] body position, state of consciousness,

injuries, position of blood and urine and surrounding

structures. Whether the note containing their opinion

in those circumstances would have been 'necessary' to

obtain an adequate account of their evidence might

depend on what they are able to say. If, however, they

were unable to recall any or many of their perceptions

then to obtain an adequate account of their

perceptions one would need to accept the inference

(the opinion) into evidence as the only evidence

bearing on the nature of what they saw. Those

perceptions, whatever they were, caused the officers

at the time to draw the inference (and thus form an

opinion) that there was a question whether [the

respondent] fell from the 1.5 metre wall.

Not being called, likewise, the only way to get any

account of their perception was to admit the

documents and the opinion contained therein.”

48. Considerations of the Court of Appeal's

opinion. With respect, the Court of Appeal's reasoning

is unsound. Evidence about a place in which a person

has fallen and about the injuries of that person is not

within the category of cases where lay opinion

evidence was admissible at common law and is

admissible under s 78. The function of the law in

relation to that category is to permit reception of an

opinion where the primary facts on which it is based

are too evanescent to remember or too complicated to

36

Jackson v Lithgow City Council [2010] NSWCA 136 at

[30]-[31]. Below the first paragraph of this quotation will

be called "the long paragraph" and the second will be called

"the short paragraph".



be separately narrated. Where the evidence is that a

person appeared to be drunk or middle-aged or angry,

for example, it is impossible in practice for the

observer separately to identify, remember and narrate

all the particular indications which led to the

conclusion of drunkenness, middle age or anger. For

that reason, s 78 permits the conclusion to be stated:

without it the evidence does not convey an adequate

account or generate an adequate understanding of the

witness's perception of the sobriety, age or emotional

state being observed. But in cases of the present type

the primary facts are not too evanescent to remember

or too complicated to be separately narrated. It would

be possible for an observer to list his or her

perceptions of specifically identifiable medical

circumstances of someone found in a drain,

perceptions of specifically measurable distances

between limbs and other objects and perceptions of

specifically describable angles of limbs. Professional

investigators like police officers, for example,

commonly make precise measurements of that kind

and compose diagrams to illustrate what they have

measured. Those persons can often remember what

they have measured even without recourse to their

notes. The process is not one where component

observations are made which are incapable of

meaningful expression without stating the composite

opinion to which they led. It is not necessary, in order

to obtain an adequate account or understanding of

perceptions of that kind, that the opinion be received.

Whether it would be possible for an observer who had

compiled these details then to say at which point the

person found in the drain fell into it would depend on

whether the tender was relying on s 78 or s 79. At

common law, expert opinion evidence can be given as

to the cause of injuries by inference from their

nature.37

There is no reason to doubt that similar

evidence in suitable form, from suitably qualified

experts, about the causation of injuries is admissible

under s 79. Had the ambulance officers given

evidence of the medical and physical details they

observed, it would have been admissible. But a

statement of a conclusion by them that the respondent

fell from a particular place would be opinion evidence

banned by s 76. It would not have passed through

the s 79 gateway into admissibility because they were

not experts. It would not have passed through the s 37 R v Middleton [2000] WASCA 213; (2000) 114 A Crim R 258.

78 gateway into admissibility because it failed to

satisfy s 78(b).38

49. For those reasons the conclusions stated in the

paragraph quoted above39

are incorrect. Those

conclusions therefore afford no valid basis for the

conclusion stated in the short paragraph that the

ambulance officers' opinion is admissible even though

they were not called.

50. Meaning of "necessary". The meaning of the

word "necessary" in statutes may vary from statute to

statute. Its construction depends on the function it

performs in the context of a particular statute. Allsop

P and Grove J in the second Court of Appeal decision

treated "necessary" in s 78(b) as meaning that the

opinion could not be admitted unless it was "the only

way" to obtain an account of the ambulance officers'

perceptions.40

Correctly understood, that test is sound

in substance but it was not satisfied in this case.

51. The function of s 78(b) is to make up for

incapacity to perceive the primary aspects of events

and conditions, or to remember the perception, or to

express the memory of that perception. But the

ambulance officers were not shown to be suffering from

incapacity in perception, memory or expression. Their

record showed a gap in expression in fact – they had

said nothing about what they perceived about the

position of the respondent's body. It did not follow

that there was any incapacity to perceive, to remember

what they had perceived, or to say what they had

perceived about it. Allsop P and Grove J thought that

the "only evidence bearing on the nature of what they

saw" was the alleged opinion stated in the impugned

representation.41

That is true in the sense that it was

the only evidence tendered. But if they had been called,

they might have been able to give more evidence bearing on

the nature of what they saw. That possibility was not excluded

by the respondent. Exclusion of that possibility on the balance

of probabilities was an unfulfilled precondition of admissibility. 38

The appellant submitted that it would also have been

inadmissible because, as the trial judge observed, it would

have trespassed on the functions of the trier of fact. That

reasoning was certainly sound at common law: see Carter v

Boehm (1766) 3 Burr 1905 at 1918 [1766] Eng R 13; [97

ER 1162 at 1168-1169] and see above at [46]. Its validity

now would depend in part on s 80(a) of the Act, set out

above at [46] n 32. Section 80(a) was not discussed in the

courts below or referred to in argument in this Court. 39

At [47]. 40 Jackson v Lithgow City Council [2010] NSWCA 136 at [31]. 41 Jackson v Lithgow City Council [2010] NSWCA 136 at [30].



52. Basten JA adopted, in one place, a less strict test

than that of Allsop P and Grove J. He said42

:

“When used in the [Act], the term 'necessary'

connotes a higher hurdle to surmount than that which

is 'helpful', 'convenient' or 'desirable', but does not

require absolute necessity, in the sense of being the

sole means of proof. Whether the exception is

satisfied in a particular case may need to take account

of the purpose or purposes underlying the general

exclusion and the purpose of the exception.”

A little later he stated an even less strict test43

:

“[T]hat which is 'necessary' should be understood as

subject to a purposive interpretation, so that it will be

effective, in practical terms, to permit the admission

of non-expert opinion evidence which will have

probative value.”

He then decided that in view of the (unproved)

expense involved in calling the ambulance officers

and the (unproved) unlikelihood that they could

remember anything useful, "it was not unreasonable"

to admit the impugned representation.44

53. It is true, as the respondent submitted, that in

some statutory contexts "necessary" does not mean

"sine qua non". It can mean merely "conducive". But

it is not correct to construe "necessary" as meaning

"not unreasonable" in s 78. That is particularly so

because s 78 is an exception to a rule of exclusion,

and is not to be construed so amply as to nullify the

rule of exclusion. It is also so because that

construction would radically depart from the common

law without any sign from the Australian Law Reform

Commission that this was contemplated. In particular,

the Commission rejected a "helpfulness" test45

:

"It is important that witnesses give evidence as

closely connected to their original perception as is

possible to minimise inaccuracy and encourage

honesty. In addition, the term 'helpful' sets such a low

threshold and is so flexible that it would be

impossible for appellate courts to exercise any real

control over the exercise of the power."

The same would be true if the test were "not

unreasonable" or "possessing probative value".

54. The word "necessary" is not directed to meeting

difficulties that arise where it is impossible or

inconvenient to call the person propounding the 42 Jackson v Lithgow City Council [2010] NSWCA 136 at [71]. 43 Jackson v Lithgow City Council [2010] NSWCA 136 at [73]. 44 Jackson v Lithgow City Council [2010] NSWCA 136 at [75]. 45 Australia, The Law Reform Commission, Evidence, Report No

26 (1985), vol 1 at 410-411 [740].

opinion as a witness. It is not analogous to the

provisions permitting evidence of hearsay statements

where better evidence is unavailable (eg ss

63 and 65 of the Act) or where to call better evidence

could cause undue expense or undue delay or would

not be reasonably practicable (s 64 of the Act). Section

78 is not a "best evidence" provision, permitting

reception of the evidence if there is no better

evidence. The word "necessary" is instead directed to

a relationship internal to the evidence of the perceiver

– the relationship between the perceiver's perceptions

and the perceiver's opinion.

55. The respondent's appeal to ‘commonsense’. The

respondent submitted that the impugned

representation “was a conclusion based on the

position and condition etc of the respondent, and

was a commonsense conclusion, in circumstances

where the respondent was found at the foot of and

facing away from a concealed drop.” This is

fallacious. It rests on an assertion made many times

in the respondent's submissions that the ambulance

officers perceived and relied on the position of the

respondent relative to his environment. For reasons

given above, that assertion is inconsistent with the

evidence and with the Court of Appeal's second

decision.46

56. It is therefore not possible to say what perception

it was that the makers made of the respondent's

position. And it is also not possible to say what

"account or understanding" of that perception would

be adequate, and whether the statement was necessary

to obtain an adequate account or understanding. These

difficulties cannot be overcome by appealing to

"commonsense".

57. Is it required that the primary perceptions be

identified by the holder of the opinion? The appellant

submitted that s 78 could not apply in the present

circumstances where the ambulance officers had not

identified the perceptions and observations on which

their conclusion was based, because that left such a

"disconnection" between their ultimate conclusion and

any underlying observations that it cannot be said that

the evidence of opinion is necessary to obtain an

adequate account of their perception of the matter or

event. It is not necessary to decide the point, but that

submission, which, according to the Court of Appeal,

contradicts a concession before it, is probably not 46

See above at [32]-[36].



correct. There is authority against it.47

The common

law rule does not require a full statement by witnesses

of perceptions and observations – though gaps of this

kind may well go to weight. Indeed the whole point of

the common law rule is that it cures the difficulty that

an observer may be confident about a conclusion

reached from observations without being able to

perceive, remember or state the primary materials

which led to it. There is nothing in s 78(b) to suggest

any different position. It is possible to conclude – not

in this case, but in other cases – that a person's

opinion is based on what that person perceived

without the person providing an exhaustive list of

what the person perceived. It is true, though, that the

less the witness or other observer states his or her

primary perceptions, the harder will it be for the

tendering party to establish the condition of

admissibility in s 78(a) (because of the difficulty of

establishing that the opinion is "based" on the

perceptions) and the condition of admissibility in s

78(b) (because of the difficulty of establishing that the

opinion is necessary to obtain an adequate account or

understanding of the person's perceptions).

Notice of contention

58. The respondent filed a notice of contention. The

contention of which notice was given was:

“[T]he fact that the [appellant] was responsible for the

creation of a particular scope of risk, as posed by the

concealed, unguarded, and precipitate drain wall, and,

the [respondent] had injuries consistent with a heavy

fall from height, at that location, was sufficient, in the

absence of other evidence, to establish causation.”

That was not the contention in fact advanced. The

contention of which notice was given should thus be

rejected: in any event, sparse though the evidence of

causation was, it was arguably sufficient to defeat the

reasoning underlying the notice of contention.

59. Instead of relying on the notice of contention, the

respondent supported what was said to be the

reasoning of Basten JA in the Court of Appeal.

Invulnerability of the Court of Appeal Majority

47

R v Harvey unreported, New South Wales Court of Criminal

Appeal, 11 December 1996; R v Van Dyk [2000] NSWCCA

67 at [132]-[133]; Guide Dog Owners' & Friends'

Association Inc v Guide Dog Association of New South

Wales & ACT [1998] FCA 480; (1998) 154 ALR 527 at

531; and Connex Group Australia Pty Ltd v Butt [2004]

NSWSC 379 at [25].

60. The appellant pointed out that in the first decision

of the Court of Appeal, the content of the impugned

representation without the question mark was treated

as decisive in the sense that the other evidence did not

permit an inference in the respondent's favour. It also

pointed out that in the second decision of the Court of

Appeal Allsop P and Grove J regarded the impugned

representation including the question mark as essential

if the respondent were to succeed. It followed that if

Allsop P, Basten JA and Grove J had thought the

impugned representation to be inadmissible in the first

decision they would have found against the

respondent. But in the second decision, unlike the

first, Basten JA did not consider the admissibility of

the impugned representation to be essential.

61. The appellant submitted that the appeal to this

Court was a strict appeal, not a rehearing, and the fact

that Basten JA later departed from his view in the first

decision that the impugned representation was

essential if the respondent were to succeed was not a

basis for overruling the decision of the other judges,

reached twice, to the contrary. Whether or not that

submission is sound, it is preferable to examine the

reasoning of Basten JA and the submissions of the

respondent on their factual merits.

Basten JA’s reasoning and

the respondent’s submissions

62. In the respondent's submission, Basten JA's

conclusion that the respondent fell over the vertical

western wall when moving downhill in the dark

without seeing it rested on three considerations. The

first was the "nature of the respondent's injuries being

severe and consistent with an unprotected and

unanticipated fall from a height greater than body

height". Those injuries included a fractured skull,

traumatic brain injury evidenced by the respondent's

post-traumatic amnesia for 23 days, a fracture of the

eleventh thoracic vertebra, many facial injuries

including a broken front tooth, and a fractured right

wrist. The second was the "distribution and collection

of bodily fluids, being both urine and blood, at a point

2.7m from the western wall, but about 4.5m from the

northern wall". The third was "the configuration of the

drain".

63. The problem with these submissions is that they

do not correspond with the evidence.

64. Nature and severity of injuries. Thus Basten JA

said that the nature and severity of the respondent's

injuries were “more likely to be caused by a fall from



1.5 metres than by stumbling when seeking to traverse

the sloping wall of the drain.”48

He mentioned that

near the pool of bodily fluids the drain was

approximately 1.9m vertically below the top of the

wall. It is plain that the injuries to the respondent's

head were the result of a fall in which his head struck

concrete. The respondent accurately submitted that the

fact that the respondent had brain damage and a

fractured skull self-evidently meant that he "clearly

has hit his head very hard on something". It is

common ground that wherever he fell from, his head

hit a part of the concrete drain near the pool of bodily

fluids. Basten JA concluded that the injuries were

unlikely to have been caused while the respondent

was "seeking to traverse the sloping wall of the

drain".49

65. It is desirable to start by pointing out that there is

no reason to suppose that the respondent was seeking to

traverse either a sloping wall or the western vertical wall.

However his injuries occurred, the accident which

caused them was unanticipated and unexpected. If the

respondent had anticipated or expected it, it would

probably not have happened.

66. The respondent's proposition is that it was not

probable that his injuries resulted from a stumble onto

the drain from one of its sides and a heavy fall, but

that it was probable that they resulted from a fall from

the vertical wall. That proposition is not self-evident.

To establish it would call for more than the

application of "commonsense" or the court's

experience of ordinary life. The proposition turns on

an inference from the nature of the respondent's

injuries to their probable cause. That inference could

only be drawn in the light of expert medical evidence.

No expert medical evidence from any medical

practitioner was tendered. Mr William Bailey was an

engineer called by the appellant, but he claimed to

have specialist knowledge of and experience in

anatomy and physiology. He considered that the

respondent's injuries were not caused by falling from

the vertical wall. Though his conclusion is not

implausible, it rests on a process of reasoning from the

nature of the respondent's injuries. His process of

reasoning is unsatisfactory because it reveals an

incomplete understanding of those injuries.

67. A pervasive fallacy in the respondent's

submission about his injuries is the appeal it made to 48 Jackson v Lithgow City Council [2010] NSWCA 136 at [88]. 49 Jackson v Lithgow City Council [2010] NSWCA 136 at [88].

their seriousness. That appeal seeks to point the Court

towards assuming that a fall from the vertical western

end was capable of producing most damage, and

inferring that it was that fall which did cause the

respondent's injuries. Even if the assumption is

correct, the inference underrates the fragility of the

human body, particularly the human head. It also

overlooks the fact that it was not proved – and proof

would have had to rest on expert medical evidence –

that a fall down one of the sides was incapable of

causing the respondent's injuries. Indeed this was not

suggested by the Court of Appeal or submitted to this

Court. It is thus accepted that there was a possibility

that the cause of the injuries was falling down one of

the sides. The evidence does not permit the view that

it was only a bare possibility. Since each of the three

possible causes (a fall from the vertical western end, a

fall from the northern side or a fall from the southern

side) is capable of causing the respondent's injuries, at

least in the circumstances of this case, a conclusion

that the cause was the cause capable of producing the

most damage does not follow. That is because that

cause was a sufficient but not a necessary condition for the

injuries: the other causes would have been sufficient as

well. (emphasis ours)

68. The position of the pool of bodily fluids and the

configuration of the drain. It is convenient to take

together the second and third factors identified by the

respondent as being persuasive to Basten JA.

69. The second factor was the "distribution and

collection of bodily fluids, being both urine and blood,

at a point 2.7m from the western wall, but about 4.5m

from the northern wall". Basten JA found,

conformably with the evidence, that the pool of bodily

fluids was approximately 2.7m from the western

vertical wall. Basten JA also said that “the sloping

sides of the drain ... appear to have been further away

from the stain than was the wall.”50

70. The third factor was what the respondent called

"the configuration of the drain". In that regard Basten

JA said51

:

“The vertical wall was at its higher end and extended

for a length which does not appear to have been

identified in the evidence but which the photographs

and measurements in evidence suggests was about 10

metres. The stains appear to have been roughly in the

50 Jackson v Lithgow City Council [2010] NSWCA 136 at [89]. 51 Jackson v Lithgow City Council [2010] NSWCA 136 at [91]

(emphasis added).



middle of the drain, which had sloping sides. At the

lowest point in the vicinity of the accident, the drain

may have been almost two metres deep. One side of

the concrete drain appears to have been slightly

higher than the other, or at least the wall of the drain

on that side was somewhat steeper than on the other.

On the south side, the slope was relatively shallow.

On the north side, the slope was steeper, at the lip, but

quickly became similar to the shelving on the other

side. The position of the blood stain would appear to

be some 4-5 metres from the relatively steeper slope

on the north side of the drain. If the [respondent] did

not fall from the vertical wall, it would seem that he

must have stumbled going down the steeper slope,

heading across the drain from north to south. If he did

that, he was heading away from his home. Assuming

he did not see the drain (which would have required a

deviation of only a few metres from his assumed

direction to head above the wall) he would have

presumably stumbled for several metres before losing

his footing completely and falling. It is not impossible

that he would have fallen in a manner which resulted

in him landing on his face, but it is unlikely. The

nature of the injuries are more consistent with an

unprotected and unanticipated fall from a height

greater than body height.”

71. The respondent advanced a related submission to

the effect that the vertical wall was a great deal closer

to the pool of fluids than the sides, and that the pool

was "at the very foot of the vertical drop".

72. With respect, this reasoning rests on an error. One

aspect of the error lies in the statement that the length

of the vertical wall "does not appear to have been

identified in the evidence", and the suggestion that it

was about 10m. In fact there is photographic evidence

to which this Court was taken by counsel for the

respondent and which he described as showing "some

dimensions which might be helpful". That evidence

showed that the tops of the side walls were 5m apart,

not 10m, and that the pool of bodily fluids was about

equally distant between the side walls. Counsel for the

appellant said without contradiction that that was the

only evidence of the length of the vertical wall. Basten

JA correctly stated that the pool of fluids was roughly

in the middle of the drain. It follows that it was about

2.5m from either side, not 4-5m from the northern

side. Thus the sloping sides of the drain were nearer

the pool of fluid than the western vertical end, not

further away. Hence the location of the pool, once it is

correctly identified, does not suggest any inherent

improbability in the proposition that the respondent

stumbled down one of the sides of the drain and fell in

the centre of the drain, where the pool was found. And

it does not support a conclusion on the balance of

probabilities that he fell from the vertical end.

73. Another error concerns the statement that if the

respondent did not fall from the vertical wall, he must

have stumbled heading across the drain from north to

south, in a direction going away from his home. The

point that that direction was away from his home

lacks significance, since he would also have been

heading away from his home if he had fallen from the

vertical end, for his home was to the north-west of the

drain. Indeed the respondent submitted that the

direction from which he would have come was from

his home towards the vertical end. The respondent

submitted, and the Court of Appeal accepted, that it

was for the respondent a "natural route". The

respondent relied on the trial judge's finding that the

respondent's mother used that route to traverse

Endeavour Park while moving from her residence to

her son's and back again. This is speculative. The

respondent was to some extent intoxicated. He left

home in an unknown direction. He could have walked

anywhere in Lithgow for some time. He could have

approached Endeavour Park from any number of

directions. Further, the respondent gave evidence that

he could not recall ever having been in Endeavour

Park in his life. For him there was no "natural" or

usual route.

74. Further, the respondent submitted that the side

walls had a "relatively gentle slope". Considered in

relation to the vertical drop, that is true. Photographs

can be untrustworthy, but at least some of the

photographs suggest that the slope was not

particularly gentle. The vertical depth at the centre

was the same as the vertical depth from the end. It has

not been demonstrated that the depth and the slope

were insufficient, if the respondent, cold on a mid-

winter night on the western side of the Blue

Mountains, and intoxicated, stumbled from the edge

of one of the sides in such a fashion that his limbs

became entangled with each other and he fell head

first, to cause the respondent's injuries. At all events

the respondent has not demonstrated the contrary.

75. Conclusion. Allsop P concluded the Court of

Appeal's first judgment in relation to liability by

saying52

: 52 Jackson v Lithgow City Council [2008] NSWCA 312; (2008)

Aust Torts Reports 81-981 at 62,468 [56].



“if it is not legitimate to use the ambulance officers'

record in the way that I have, I would agree with the

primary judge that on the material available it was not

possible to infer that the accident happened in the way

asserted by the [respondent]. All the other material,

while consistent with that being the case, does not

permit ... any inference that it occurred in that

fashion.”

As noted earlier53

, the Court of Appeal in its second

decision withdrew the finding that the ambulance

officers had the respondent's inert unconscious body

in front of them and had the advantage of being able

to assess its position and its relationship with the wall

and the drain. This withdrawal ought to have led to

the dismissal of the appeal after the second Court of

Appeal hearing. Once it is concluded, as it has been,

that the impugned representation was inadmissible,

the same result follows, for the Court of Appeal's

conclusion is deprived of any support. The alternative

reasoning propounded by Basten JA cannot supply

support to a sufficient degree. The reasoning of

Basten JA does not establish what the position of the

respondent's body was when the fall took place. In the

absence of that evidence, or satisfactory expert

evidence, the conclusion that a fall from the vertical

face took place cannot be drawn on the balance of

probabilities.

Orders

76. The appeal should be allowed. The judgment

entered and the orders pronounced by the Court of

Appeal of the Supreme Court of New South Wales on

11 June 2010 should be set aside and instead it should

be ordered that the respondent's appeal to that Court

be dismissed with costs, including costs of and

incidental to the first hearing in the Court of Appeal.

The respondent must pay the appellant's costs,

including the costs of matter number S569 of 2008, in

this Court.

* * *

77. GUMMOW J. I agree with the conclusions and

reasoning in the joint judgment respecting the

construction and application of the provisions of the

Evidence Act 1995 (NSW) ("the Act"). In particular, I

agree not only with their Honours' construction of s

78 of the Act, concerning the admission of "lay

opinions", but also that the relationship between Pts

3.2 and 3.3 of the Act, read with the general provision

53 See above at [34].

in s 56(1) (which is in Pt 3.1), is such that a statement of

lay opinion in a business record must comply with s 78.

78. There remains the issue of causation raised by the

respondent in the submissions on the notice of

contention. The issue may be seen from the following

passage in the reasons of the trial judge, Ainslie-

Wallace DCJ. Having held that it was entirely

foreseeable that the wall, which was close to the

ground and concealed a considerable drop on the other

side, would pose a risk of injury to a person walking

in the park at night, because that person might fall

heavily onto the concrete below the wall and be

seriously injured, her Honour continued:

“These findings do not dispose of the question of

whether the Council ought to have taken steps to

avoid the risk. That requires a consideration of what a

reasonable person (or entity) in the position of the

council would have done in relation to the risk

foreseen. Matters such as those referred to in [Wyong

Shire Council v Shirt]54 are to be taken into account.

Since the [respondent's] accident, the Council has

erected a fence in front of the wall. According to such

documents as were tendered, the permanent fence was

erected in 2006. It was not suggested that this step

was other than cheap and effective. The effect of the

erection of the fence would prevent people from

falling over or off the wall. These matters persuade

me that the foreseeable risk of harm to a person from

falling over the wall while in the park at night was

one which required reasonable steps by the council to

avoid. In this case it was as simple as erecting a fence

on the uphill side of the wall which, from the

photographs, make the presence of the wall

immediately apparent. In coming to this decision, I

take into account that there was a clear utility in

having the drain in the park as can be seen from

photographs taken of the drain after rain. I am

satisfied that the [appellant], in not taking any steps to

avoid the risk of injury, was in breach of its duty of

care to the [respondent].”

79. The trial judge then asked whether the respondent

had shown that his injuries were caused when he

tripped or stumbled over the low wall and fell onto the

concrete drain below; a competing proposition put by

the appellant was that he had stumbled down the side

of the drain and fell on the concrete. Her Honour

concluded that "the [respondent] has not proved that

his accident occurred because he did not see the wall

and the drain in the dark, and thus fell over the wall

and was injured.” 54

[1980] HCA 12; (1980) 146 CLR 40 at 47-48; [1980] HCA 12.



80. The ultimate question before the District Court on

the matter of causation had been whether the evidence

established facts which positively suggested, that is to

say provided a reason for thinking it more probable

than not, that the respondent's injuries were sustained

because he had not seen the wall and the drain in the

dark and thus had fallen over the wall and been

injured.55

81. On the facts as they have been analysed in

submissions on the notice of contention, did the nature

of the injuries suffered by the respondent found an

inference that it is more probable than not that the

injuries were sustained as he alleges? The foundation

of that inference must link the nature of the injuries to

their probable cause. I agree with what is said in the

joint reasons to the effect that the linkage must be the

result of more than the application of experience of

ordinary life and that in the absence of medical

evidence to support the drawing of that inference, the

respondent must fail.

82. Orders should be made as proposed in the joint

reasons.

* * *

83. CRENNAN, J. The issues, the facts, the history of

the litigation, and the legislation appear from the

reasons for judgment of French CJ, Heydon and Bell

JJ. I agree with their Honours' reasons for concluding

that the Court of Appeal of the Supreme Court of New

South Wales erred in concluding that relevant parts of

the ambulance officers' record contained a lay opinion

which was admissible pursuant to the exception

created by s 78 of the Evidence Act 1995 (NSW) ("the

Act") to the exclusionary opinion rule in s 76 of

the Act.

84. That leaves for consideration the respondent's

notice of contention, which turns on the sufficiency of

the evidence (other than the ambulance officers'

record) to establish causation and therefore the

liability in negligence of the appellant Council ("the

Council") in respect of the respondent's injuries.

85. Shortly before 6:57 am on 18 July 2002, passers-

by found the respondent lying unconscious in a

concrete drain in Endeavour Park, Lithgow ("the

park"), which is bound by the Great Western Highway

("the highway") and Amiens Street. This drain runs

downhill in an east-west direction at the Amiens

55

See Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR

111 at 132-133 [51], 134-135 [62]; [2010] HCA 5.

Street end of the park. There was a pool of dried blood

and other bodily fluid 2.69 metres from the vertical

face of the drain's retaining wall which extends a

sheer 1.4 to 1.7 metres on the west and protrudes

between 90 and 280 millimetres from the grass at all

points ("the retaining wall").* The drain has sloping

sides to the north and south. The respondent had no

memory of how he came to be in the drain, no-one

witnessed his accident, and there was no evidence of

exactly where he was lying when found.

86. The respondent brought an action in negligence

against the Council (which was responsible for the

care and management of the park), alleging that he

had sustained his injuries after falling 1.5 metres from

the top of the retaining wall onto the concrete drain

below. At the time of the accident, there was no fence

between the retaining wall (which was painted dark

green) and the grassy hillside, and there were plants

growing against the wall on the uphill side of the

drain, obscuring the lip of the wall. The respondent's

case before the primary judge was that the "only

rational route for him to have taken" from his house to

the park on the morning of 18 July 2002 was to walk

along the highway, cross the road, enter the park and

walk downhill towards Amiens Street. He contended

that the most probable explanation for his injuries was

that he fell over the edge of the retaining wall whilst

walking downhill in this fashion, falling heavily onto

the concrete apron of the drain.

87. The primary judge found that the Council owed

the respondent "a duty to take reasonable care to avoid

foreseeable risks of injury to a person in his position."

On the question of the foreseeable risk of harm her

Honour said of the retaining wall:

“It is entirely foreseeable that the wall, which is close

to the ground and which conceals a considerable drop

on the other side would pose a risk of injury to a

person walking in the park at night. That a person

might fall heavily onto the concrete below the wall

and be seriously injured is certainly foreseeable.

... … … …

I find that a sober person walking through the park at

night and taking reasonable care for his or her own

safety would not have seen the wall and recognised

that it represented a drop on the other side. I am not

persuaded that the risk presented by the wall and the

drop off the side into the drain was obvious.”

* I feel it would have been quite useful and helpful if the Court or

any of the judges were to attach one or two sketch maps of the

scene of accident with sufficient details to the judgment at least

as an appendix - IMS.



88. Her Honour went on to find that the foreseeable risk

of harm was one which required reasonable steps by the

Council to avoid that risk and that in not taking such steps the

Council was in breach of its duty of care to the respondent.

The only question on appeal was causation.

89. Given the circumstantial nature of the evidence in

the proceedings, the key issue in relation to causation

was whether a reasonable inference could be drawn

that the respondent fell over the retaining wall and

down approximately 1.5 metres onto the concrete

drain below. The Council contended that the evidence

would equally support a finding that the respondent

stumbled down the side of the drain and rolled or fell

into it, or was assaulted in the park and left there, or a

number of other conclusions. The suggestions of an

assault in the park and other possibilities were not

pressed in this Court.

90. That the respondent sustained severe head

injuries associated with organic brain damage was not

contested. A CT scan of the respondent's brain taken

on 18 July 2002 showed considerable brain damage

with haemorrhagic contusions of the right frontal lobe

and the temporal lobes. The respondent had post-

traumatic amnesia for 23 days after the accident,

accepted as being indicative of a very serious

traumatic brain injury. He suffered a fracture of the

right wrist, requiring internal fixation with plate and

screws and a plaster cast until early September 2002,

and half of his front top tooth was broken off. He also

had abrasions to the knees and suffered a probable

fracture of the 11th thoracic vertebra. He had

extensive bruising to the right side of his face and had

haemorrhaged from the nose and the right eye. The

CT scan showed no fracture in the skull vault, but

there was prominent soft tissue swelling over the right

orbit and forehead and there appeared to be a fracture

of the floor and medial wall of the right orbit. The

injuries shown on the CT scan were not disputed by

the Council.

91. In a report of November 2005, Dr Peter Conrad,

Fellow of the Royal Australasian College of Surgeons,

recorded under the heading "X-rays" a reference to the

CT scan and noted: "Fracture of floor and medial wall

of right orbit." Whilst it is not absolutely clear

whether that statement is based on Dr Conrad's own

reading of the CT scan, it matters not for present

purposes, because that evidence was not challenged.

Dr Conrad was not required for cross-examination.

There was no expression of opinion in any written

medical report, or otherwise in the medical evidence,

as to the type of fall into the drain onto the concrete

which would be consistent with such injuries.

92. Following established principles, the respondent

had the onus of proving causation on the balance of

probabilities.56

Causation is essentially a question of fact, the

determination of which involves common sense.57

93. By reference to the following quotation made by

Dixon CJ in Jones v Dunkel,58

the primary judge

recognised correctly that it was possible to make a

finding of causation in the absence of direct evidence:

“All that is necessary is that according to the course

of common experience the more probable inference

from the circumstances that sufficiently appear by

evidence or admission, left unexplained, should be

that the injury arose from the defendant's

negligence. By more probable is meant no more

than that upon a balance of probabilities such an

inference might reasonably be considered to have

some greater degree of likelihood.”

94. Whilst "a more probable inference" may fall short

of certainty, it must be more than an inference of

equal degree of probability with other inferences, so

as to avoid guess or conjecture.59

In establishing an

inference of a greater degree of likelihood, it is only necessary

to demonstrate that a competing inference is less likely, not

that it is inherently improbable. (emphasis ours)

95. When dealing with the issue of causation, the

primary judge noted that the Council had

commissioned a report from Mr Bailey, an expert in 56

Bennett v Minister of Community Welfare [1992] HCA

27; (1992) 176 CLR 408 at 428 per McHugh J; [1992] HCA

27, citing Bonnington Castings Ltd v Wardlaw [1956]

UKHL 1; [1956] AC 613 at 620; see also Tubemakers of

Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 per

Mason J; 10 ALR 303 at 310. 57

March v Stramare (E & M H) Pty Ltd [1991] HCA 12;

(1991) 171 CLR 506 at 515, 522-523; [1991] HCA 12;

Bennett v Minister of Community Welfare [1992] HCA 27;

(1992) 176 CLR 408 at 413. 58 [1959] HCA 8; (1959) 101 CLR 298 at 305; [1959] HCA 8,

quoting from Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

at 6. This passage is also reproduced in Holloway v

McFeeters [1956] HCA 25; (1956) 94 CLR 470 at 480-

481; [1956] HCA 25. 59 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at 358 per

Dixon, Fullagar and Kitto JJ; [1952] HCA 19; Jones v

Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 304-305 per

Dixon CJ. Cases concerning the line to be drawn between

conjecture and inference have been usefully collected by

Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA

29; (2000) 49 NSWLR 262 at 275-276 [85]- [88].



mechanical and biomechanical engineering. Mr Bailey

assumed that the respondent did not move after

sustaining injury and stated that a factor which

indicated the respondent did not receive injuries after

a fall over the retaining wall was "that there was no

contact fracture of the skull or neck injuries". This

reason is not consistent with the fracture of the floor

and medial wall of the right orbit and the breaking of

the respondent's front tooth. Mr Bailey further opined

that the nature and severity of the respondent's head

and facial injuries in conjunction with abrasions

appeared "consistent with a heavy forward stumble" if

the respondent entered the drain "via the sloping

sides". Whilst Mr Bailey had mentioned the

respondent's abrasions, he had not noted either the

fracture of the respondent's right wrist or the breaking

of his front tooth. The primary judge noted that senior

counsel for the Council at the trial did not place great

reliance on Mr Bailey's report and, her Honour said, it

was “of little assistance in determining the issue of

causation.” There was no complaint about that aspect

of the primary judge's decision.

96. Without reference to the medical evidence, the

primary judge noted that there were competing

inferences which reasonably arose from the facts, and

then made her key finding on causation as follows:

“On the evidence of this case I am unable to find that

the conclusion that the [respondent] fell off the wall

was more likely than the conclusion that he stumbled

down the sloping side of the drain or was standing on

the wall and lost his balance. It follows that the

[respondent] has failed to establish that the [Council's]

breach of its duty of care caused his injuries.”

97. On the second hearing of the appeal before the

Court of Appeal, Basten JA reconsidered the material

in evidence and stated that, disregarding the

ambulance officers' record, he would have been

“comfortably satisfied that, on the probabilities, the

[respondent] fell over the wall when moving down

hill, and without seeing the drain.”60

What weighed

with his Honour in coming to that conclusion was the

severity and nature of the injuries, the apparent

position of the respondent's body when found and of

bodily fluids 2.69 metres from the foot of the retaining

wall, and the configuration of the drain. His Honour

found that the severity of the injuries was “more likely

to be caused by a fall from 1.5 metres than by

stumbling when seeking to traverse the sloping wall of

60 Jackson v Lithgow City Council [2010] NSWCA 136 at [93].

the drain”61

and that the nature of the injuries was

"more consistent with an unprotected and

unanticipated fall from a height greater than body

height" than with a stumble down the side wall of the

drain.62

Further, because of the distance of the stain of

bodily fluids from the retaining wall, his Honour

found that it was more probable than not that the

respondent fell over the wall whilst moving downhill

rather than falling when standing on the wall and

losing his balance.63

That finding depended on a

conclusion as to the distance of the bodily fluids from

the retaining wall which was not affected by his

Honour's apparently erroneous assumption that the

length of the retaining wall was 10 metres. In

advancing the notice of contention, the respondent

supported Basten JA's reasoning.

98. As mentioned, this reasoning involved revisiting

factual matters agitated at the first hearing of the

appeal, a course which the other members of the Court

of Appeal did not follow. On the rehearing of the

appeal, Allsop P (with whom Grove J agreed) adhered

to the view he expressed in the first hearing that whilst

evidence, other than the ambulance officers' record,

was consistent with the respondent's case, it was

insufficient to permit the drawing of the inference that

the accident happened as asserted by the respondent.64

99. In his notice of contention, the respondent asks

this Court to affirm the judgment of the Court of

Appeal on the ground that its decision as to the

circumstances of injury is supported by evidence other

than the ambulance officers' record.

100. The Council submitted that the appeal to this

Court is a strict appeal and no error had been shown in

the decision of the majority of the Court of Appeal.

Further, it was submitted that the matters to which

Basten JA referred did not permit the drawing of the

inference that the respondent's injuries were caused by

a fall from the retaining wall, because there was no

medical evidence that the respondent's injuries were

inconsistent with stumbling into the drain from a side

wall or overbalancing while standing on the retaining

wall. Mr Bailey's evidence was also relied upon.

101. The respondent relied on his success at trial in

establishing the existence of a duty of care, a foreseeable risk of

61 Jackson v Lithgow City Council [2010] NSWCA 136 at [88]. 62 Jackson v Lithgow City Council [2010] NSWCA 136 at [91]. 63 Jackson v Lithgow City Council [2010] NSWCA 136 at [92]. 64 Jackson v Lithgow City Council [2010] NSWCA 136 at [20].



harm, and an unreasonable failure to take measures to avoid

such a risk, coupled with the fact that the respondent's injuries

were consistent with the manifestation of that risk. It was

contended that in the absence of any other explanation

a court was entitled to infer the accident occurred as

alleged. The respondent submitted essentially that this

Court could reconsider the whole of the evidence and

that it should take a similar approach to that taken by

Basten JA. (emphasis ours)

102. As explained in Fox v Percy65

, an appeal to this

Court is a strict appeal. Fox v Percy was concerned with

the circumstances in which an appellate court may set

aside a finding of fact by a trial judge which is based

on the credibility of a witness. That issue did not arise

in this case.

103. The issue of causation was confined to the

inferences to be drawn from the facts established.

In Warren v Coombes,66

a majority of this Court said:

“there is, in our opinion, no reason in logic or policy

to regard the question whether the facts found do or

do not give rise to the inference that a party was

negligent as one which should be treated as peculiarly

within the province of the trial judge.”

104. On a strict appeal, this Court, as much as the

Court of Appeal on a rehearing, is obliged to determine

errors of factual inference.67

105. As already mentioned, the evidence of the

seriousness of the injuries and their nature was not

disputed. Furthermore, it was not contested that the

injuries were consistent with a heavy fall into the

drain onto the concrete. The injuries were consistent

with an accident arising from the risk created by the

Council in respect of the unfenced retaining wall. The only question was whether they were equally consistent with

other possibilities.

106. Photographs in evidence showed that the

downwards gradient of the sides of the drain was

moderate by comparison with the precipitate drop

from the retaining wall. Whilst it could not be

said that it was impossible for the respondent to

have suffered his injuries, including fractures, 65

[2003] HCA 22; (2003) 214 CLR 118 at 129 [32]; [2003]

HCA 22. 66

[1979] HCA 9; (1979) 142 CLR 531 at 552 per Gibbs ACJ,

Jacobs and Murphy JJ; [1979] HCA 9. 67

Roads and Traffic Authority of New South Wales v

Dederer (2007) 234 CLR 330 at 403 [266] per Callinan J,

415 [294] per Heydon J; [2007] HCA 42; see also Warren v

Coombes [1979] HCA 9; (1979) 142 CLR 531 at 553.

whilst rolling into the drain after a fall from one

of the sloping side walls, or stumbling and falling

from them as the Council contended, the injuries

– most particularly the seriousness of the brain

injury and the fractures of the right wrist and the

floor and medial wall of the right orbit and the

breaking off of half of the respondent's front tooth

– are more consistent with a heavy fall from the

height of the retaining wall. It is not just the

severity of the injuries which underpins this

conclusion, it is their nature. There is a lesser

degree of likelihood that the injuries, particularly

fractures including the fractures to the right orbit

and the broken tooth, were caused by a stumble

or fall down a slope. The position of the stain of

bodily fluids 2.69 metres from the foot of the

vertical wall is also more consistent with an

unexpected fall and consequential pitch forward

of a body's length from the height of the retaining

wall, than with a loss of balance whilst standing

on the wall.

107. The more probable inference to be drawn

from the facts, having regard to both the

respondent's injuries and the position of the stain

from bodily fluids in the drain, is that the

respondent fell unexpectedly into the drain onto

the concrete from the height of the retaining wall.

Giving due weight to the conclusion reached by

the learned primary judge, for the reasons given,

she was in error in holding that causation was not

made out.

108. The Court of Appeal was obliged to reach a

conclusion about the inferences to be drawn from

the whole of the evidence, excluding inadmissible

evidence.

109. The Court of Appeal should have concluded that, even

without the ambulance officers' record, the respondent's

appeal should be upheld. The respondent's success on the

notice of contention has the result that this Court can make

the orders which the Court of Appeal should have made.

That can be accomplished in this case by

dismissing the Council's appeal to this Court with

costs. The Council should also pay the

respondent's costs in matter number S569 of 2008

in this Court. (emphases ours)

* * * * *

(2011) 2 LAW Lok Pal: Ombudsman or Prosecutor? (IMS) 71

Law Animated World, 15 October 2011

(Carried from p. 6→)

71

enquires. Organisations like the Corrupt Practices Investigation Bureau (CPIB) are not suited to investigating unethical, but not necessarily criminal or corrupt, behaviour. The Ombudsman, on the other hand, may investigate a broader variety of complaints, with the option of referring to cases of corruption and criminal practices to the CPIB or relevant authorities. As such, there is a clear institutional and strategic role for an Ombudsman to play.

What an Ombudsman is Not Meant to Do: An Ombudsman is not designed to serve as a check on the government: that’s the Opposition’s role. An Ombudsman should not use its office or mission to disrupt the work of the civil service. It should not mischievously aim to embarrass government agencies and officers or erode public confidence in the civil service. In order to ensure the Ombudsman maintains the highest possible ethical standards, it should be made to apply for Institute of Public Character (IPC) status under the Income Tax Act. The head of the Ombudsman agency can be appointed by the President.

Conclusion: The Singapore government may be reluctant to set up an Ombudsman because of its historical raison d’être. In 1808, the Swedish Parliament first used the term “Ombudsman” for the office of Justitie-Ombudsman. The office functioned as a defender of the people in their dealings with government. The Singapore government may thus believe that the establishment of an Ombudsman would send the wrong signal, that is, Singapore citizens need to be defended against the government. Such an interpretation is unhelpful.

The need for an Ombudsman is not based on any inadequacies of the Singapore government but, rather, on the fact that Singaporeans and Singapore society have evolved. Singaporeans are now more politically mature. With maturity comes the need for empowerment. Empowerment is necessary for a sense of ownership to develop. An Ombudsman is a step in this direction.”4

So it is quite clear that the anti-corruption agency of Singapore, the CPIB, is far from being akin to the institution of Ombudsman and it is not clear whether it regularly investigates corruption charges against the ministers even though the law seems not preventative on that aspect. However, 4 See: http://groundnotes.wordpress.com/2008/09/23/time-

for-an-ombudsman-in-singapore/; KPMG is one of the

largest professional services firms in the world and one of the

Big Four auditors, along with Deloitte, Ernst & Young (EY) &

PwC, with its global headquarters in Amstelveen, Netherlands.

we may also note that “the former Prime Minister of

Singapore, Lee Kuan Yew willingly allowed the CPIB

to investigate for wrongdoings in their purchasing

their houses in the Orchard Road area a few years ago.

Investigations continued despite the fact that the

Prime Minister then, Goh Chok Tong was not that

happy with the episode. The CPIB investigations

showed no wrongdoings on the part of both Lee and

his son, the Deputy PM at that time.”

Well then, we shall now proceed to do a bit of reading and analysis on anti-corruption agencies in Hong Kong. (to be continued)

* * * * *

* * * * *

AN APPEAL

We request all our readers, friends and well-wishers to liberally subscribe to/ contribute for and advertise in this unique type of journal and also aid in increasing its circulation. Life subscription for this journal:

Rs. 10,000/-; annual subscription for 2011: Rs.

900/-. Any annual subscription will count for one

volume i.e. January to December of the year,

and back-numbers of the year will be supplied to

the subscriber. Also, we request for scholarly articles on any aspect of socialism/social justice, its relevance and importance in Indian conditions and the practicable policies and measures towards that end, preferably with some comparative international study, to be sent for publication in the coming

October Revolution Special (November 2011) issue of this journal to reach us, at the latest, by 31 October 2011. - I.M. Sharma, Editor.

ADVERTISEMENT TARIFF:

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(for outstation cheques pl. add Rs. 75/- bank charges)


Rory O’Niel, a short, thick-set, recent

importation from “Ould Ireland,” whose

countenance was one of the most innocent-

looking that ever graced the bar of a police-

office, and whose black bristly head of hair had

as rough an appearance as if there were not a

comb in Christendom, – was charged with having

stolen a horse. The charge excited more than

ordinary interest, and gave rise to a variety of

observations on the part of other persons in the

office, touching the enormity of the crime of

horse-stealing.

The complainant, a surly-looking sour-tempered

personage, of middle size, and about forty years of

age, stated the case with great pomposity. “The

horse, your worship, with which this Irishman,”

pointing with an air of scorn to the prisoner, “ran

away, was …”

“He ‘s not spaking a word o’ the blessed thruth,

yer honour,” interrupted poor Pat, with great

earnestness of manner.

“Silence !“ said the magistrate, addressing himself

to the prisoner; “you must allow the complainant

to state his case without interruption.”

“But, yer honour, there isn’t a morsel of the

blessed thruth in what he ‘s spaking.”

“Well, but you must be silent now; you’ll be heard

when he’s done.”

“Heaven bless yer jewel of a sowl, yer honour, for

that same! If I had known that, sure it’s not meself

wid have throubled yer honour with a single word

at present.”

The complainant resumed. “The horse, Sir, with

which this person ran away, was one of the finest

animals in Lon—”

“Do not tell the bench anything about the qualities

of your horse; that is not the matter we are called

to decide,” interrupted the magistrate.

“Very well, Sir,” said the complainant, in a

subdued tone, his vanity being clearly wounded by

the observation of the magistrate. “Very well, Sir.

♣

Courtesy: http://www.victorianlondon.org/legal/policecourts.htm

[James Grant, Sketches in London, 1838]; emphases ours - IMS.

Having, then, occasion to visit the British

Museum, I desired this person, whom I saw

lounging about in Great Russell Street, to hold the

horse, and walk him about for an hour, saying I

would, on my return, give him a shilling for his

trouble.”

“And he undertook to do as you requested ?“

observed the magistrate.

“He did, Sir: he put his hand to his hat, and said he

would take particular care of the animal. On

quitting the British Museum, about an hour

afterwards, I found both the horse and the man

were gone.”

“And what did you do then ?“ inquired the

magistrate. –

“I informed the police of the circumstance, and the

horse was brought back to my hotel, in

Westminster, in about two hours afterwards.”

The policeman, who restored the animal to the

complainant, stated, that about half an hour after

the time mentioned by the complainant, he saw

the horse coming in the direction of Tottenham-

court-road, at a furious gallop, with the prisoner

on his back, but having all the appearance of one

who was the reverse of comfortable in his seat.

On turning the corner to go down Tottenham-

court-road, in the direction of the Hampstead-

road, the prisoner fell off the animal, when the

latter galloped away at still greater speed. He

was, however, soon seized by the bridle and

stopped by a man in the street; when he ran up

and took charge of him.

“Of the horse, you mean?” said the magistrate.

“Of the horse, your worship!”

“So that you left the rider who had fallen off to

take care of himself”

“I thought, your worship, that as the horse was

very restive, if he was not taken care of, he might

escape again and do greater mischief.”

“Is the person here who raised the prisoner after he

fell off the horse’s back?”

“Yes, yer honour: it was myself that did that same

act of kindness to a countryman,” responded a tall,

CASE OF ALLEGED HORSE-STEALING

- James Grant♣♣♣♣

(2011) 2 LAW Case of alleged horse-stealing (James Grant) 73


clumsy, but benevolent-looking man, in a strong

Irish brogue.

“Well, I shall examine you presently,” said the

magistrate, addressing himself to the latter.

“Whenever your honour plases,” observed the

other, drily.

“You hear the charge against you, prisoner; what

have you to say to it?” –

“A great dale, yer honour.”

“Well, make your statement as short as possible.”

“I will, yer honour; but would yer honour be so

condesanding as to allow me to begin first?”

observed Pat, amidst shouts of laughter, caused not

less by the archness with which the remark was

made, than by the wit of the remark itself. The

magistrate could not help joining in the general

laugh.

“Well, Sir, do be so good as to let us hear your

defence.”

“Och! and sure that I will, yer honour, in less than

a minit.”

“Well, Sir, proceed.”

“My defence, yer honour, is, that the gintlemin has

not spoken a word of the blessed thruth, as sure as

the Virgin’s in heaven.”

“Do you mean to say,” inquired the magistrate,

with some emphasis, “that the complainant did not

leave his horse with you?”

“Och! sure, yer honour, and it’s not meself would

be after sayin’ any such thing.”

“What do you mean to say, then?”

“What do I mane to say, is it yer honour manes?”

“Yes. Do you mean to say that you did not run

away with the horse?”

“Faith, and it’s myself manes to do jist that same.”

“How, then, were you seen gallopping in the

direction of Tottenham-court road?”

“Och, yer honour! that’s it, is it? Then I mane to

say it happened in this way.”

Here Pat hesitated for a moment, as if ruminating

on what he would say further.

“Come, Sir: you say that you did not run away

with the horse: how, then, were you seen

gallopping the animal at so furious a rate?”

“Bekase, yer honour, the horse ran away with me.” (Roars of laughter, in which not only the magistrate,

but even the demure, sulky-looking complainant

joined.)

“How do you mean?” inquired the magistrate,

when the laughter had subsided.

“How do I mane? What I mane is this, that instead

of meself running away with the horse on my own

blessed back, the horse ran away with me on his

back.” (Renewed laughter.)

“You are not charged,” said the magistrate, “with

carrying the animal on your back.”

“Am I not, yer honour?” shouted Pat, his

countenance suddenly lighting up with a beam of

joy. “Am I not? Then the charge is dismissed, is

it?” (Laughter.)

“Not quite so fast as that,” answered the

magistrate, drily.

“Then – what am I charged with, yer honour?” said

Pat, with great shrewdness of manner.

“With stealing the complainant’s horse.”

“How, yer honour,” said the prisoner, with the

most imperturbable gravity of countenance, “could

I stale the baste, when it ran away with me, and not

me with it?”

“Come, tell us how you got on the horse’s back?”

“Faith, and I will, this blessed minit, yer honour!”

“Well, let us hear. How was it?”

“Well, yer honour, as sure as I hope that my soul

will be saved, I’ll tell you the blessed thruth. It was

in this way.”

Here Pat suddenly dropped his eyes on the floor,

and made a dead pause, which lasted for some

seconds.

“Why don’t you proceed?” inquired the magistrate,

with some tartness.

“Wid yer honour be so good as to let me be after

telling you what I was thinking of?” said the prisoner,

with great simplicity, and slightly scratching his

forehead.

“Well, what was it?” inquired the magistrate, sternly.

“Well, then, yer honour, I was thinking, in case you

shouldn’t belave what I say, though it’s the truth of

the gospel, it would be good for meself if the horse

could spake, and be produced here before yer

honour.”

The office was again convulsed with laughter,

which, indeed, it would have been impossible for

the most demure to resist, owing to the air of

simplicity and singularly ludicrous way in which

the poor fellow made the remark.

74 Case of alleged horse-stealing (James Grant) (2011) 2 LAW


“Well, but as we must unfortunately dispense with

the presence of the horse, he being unable to give his

testimony to the point, will you tell us,” said the

magistrate, “in a few words, how you came to get on

his back?”

“I will, yer honour. As I was standing walking (loud

laughter) with the animal, a great big spalpeen who

was driving a cart, comes in over to me, and says,

says he, ‘That’s a handsome-looking horse you have

got.’ ‘May be, you’re right there,’ says I. ‘Ah,

Paddy!’ says he, ‘why don’t you get on his back, and

ride him about?’ ‘What’s that to you?’ says I. ‘Oh,’

says he,’ it’s because you cannot ride, you Irish —,’

says he.

‘You —’ … Shall I tell yer honour the word

I made use of here?”

“Do,” said the magistrate, “if it’s not a very bad one.”

“It’s partikerly bad, yer honour. Says I, ‘You lie, you

stupid thickskull!’

On that, says he again, ‘You can’t put a leg on

horseback. I’ll bet you anything you like, you can’t.’

‘A noggin of gin!’ says I.

‘Anything you like,’ says he again.’

‘Well, then,’ says I, ‘let it be a noggin of Fearon’s

best.’

‘Done!’ says he.

“And with that, yer honour, to gain the wager, as

sure’s my name is Rory O’Niel, I leaped into the

saddle, and was about to have a gintle trot, when he

takes his whip and lashes the animal with all his

force, and away it flew with me at full gallop, yer

honour. That’s the blessed thruth, as I hope to be

saved!”

“We shall now hear,” said the magistrate, “what the

person who took the prisoner up, when he fell off the

horse, has got to say. Well, Sir?” continued the

magistrate, addressing himself to the witness in

question.

“I’m here, yer honour.”

“You say you were the first that came to the

assistance of the prisoner when thrown off the

horse.”

“I was, yer honour.”

“Tell us, then, what you know about this matter?”

“When I saw him fall,” answered Rory’s countryman,

“I ran in over to him, not knowing at the time that he

was from Ould Ireland, and said, says I, ‘Are you

much hurt, my darlint?’ But, yer honour, the never a

word did he spake in answer to my question. Says I,

again, ‘Are you living or dead, honey?’ And sure

enough, yer honour, he raised up his two big eyes,

like a wild duck in a thunder storm, and said, ‘Don’t

you see I’m dead, you spalpeen? the horse has kilt me

quite?’” (Loud laughter.)

“But do you know anything as to the circumstances

connected with the starting of the horse?” inquired

the magistrate. “Were you near the place at the

time?”

The witness stated that he was not within sight at

the time the horse went off, and consequently did not

know anything about that part of the matter.

The policeman, who took charge of the horse after

he was caught, here came forward, and said that a

highly respectable gentleman came up immediately

after the accident, and when a concourse of persons

were gathered around, and gave precisely the same

statement as that of the prisoner, as to the

circumstances under which the latter had mounted the

horse.

The bench being satisfied that poor Rory had told

the truth, and that, instead of deserving more

punishment, he had been too much punished already,

ordered him to be discharged.

“Thank yer honour, and may yer honour never be kilt

by a fall from a horse, to the end of your blessed

days,” said Rory, amidst much laughter, on hearing

the decision of the magistrate. Pat was then in the act

of quitting the office, when he suddenly turned about,

and addressing the bench with a remarkable

peculiarity of manner, said:

“But, plase yer honour, the gintleman has not given

me the shilling yet, at all at all, for houlding his

horse.”

“You have not,” observed the complainant, “entitled

yourself to the shilling: you did not fulfil your

engagement: you let the horse go.”

“And sure, that was not my fault,” answered Rory,

with much dryness of manner. “The baste ran away

against my will.”

A loud burst of laughter followed the

observation; and so pleased were the two

magistrates who were present, with the -readiness

and wit of Rory, that they each gave him half-a-

crown. The complainant, surly though he seemed

to be to the last, could not resist following their

example. Pat then left the office, seven-and-

sixpence richer than he entered it, singing, with

great seeming sincerity, “Och! long life to all yer

honours!”

* * * * *

(2011) 2 LAW 75


§ 2386. Registration of Certain Organizations (contd.)

(3)(f) The name and address of each person who

has contributed any money, dues, property,

or other thing of value to the organization or

to any branch, chapter, or affiliate of the

organization;

(g) A detailed statement of the assets of the

organization, and of each branch, chapter,

and affiliate of the organization, the manner

in which such assets were acquired, and a

detailed statement of the liabilities and

income of the organization and of each

branch, chapter, and affiliate of the

organization;

(h) A detailed description of the activities of the

organization, and of each chapter, branch,

and affiliate of the organization;

(i) A description of the uniforms, badges,

insignia, or other means of identification

prescribed by the organization, and worn or

carried by its officers or members, or any of

such officers or members;

(j) A copy of each book, pamphlet, leaflet, or

other publication or item of written, printed,

or graphic matter issued or distributed

directly or indirectly by the organization, or

by any chapter, branch, or affiliate of the

organization, or by any of the members of the

organization under its authority or within its

knowledge, together with the name of its

author or authors and the name and address

of the publisher;

(k) A description of all firearms or other weapons

owned by the organization, or by any

chapter, branch, or affiliate of the

organization, identified by the

manufacturer’s number thereon;

(l) In case the organization is subject to foreign

control, the manner in which it is so subject;

(m) A copy of the charter, articles of association,

constitution, bylaws, rules, regulations,

agreements, resolutions, and all other

instruments relating to the organization,

powers, and purposes of the organization and

♣

Continued from LAW, 30 September 2011 issue. Emphases

in bold generally ours - IMS.

to the powers of the officers of the

organization and of each chapter, branch, and

affiliate of the organization; and

(n) Such other information and documents

pertinent to the purposes of this section as the

Attorney General may from time to time

require.

All statements filed under this section shall be public

records and open to public examination and

inspection at all reasonable hours under such rules

and regulations as the Attorney General may

prescribe.

(C) The Attorney General is authorized at any

time to make, amend, and rescind such rules and

regulations as may be necessary to carry out this

section, including rules and regulations

governing the statements required to be filed.

(D) Whoever violates any of the provisions of

this section shall be fined under this title or

imprisoned not more than five years, or both.

Whoever in a statement filed pursuant to this

section willfully makes any false statement or

willfully omits to state any fact which is required

to be stated, or which is necessary to make the

statements made not misleading, shall be fined

under this title or imprisoned not more than five

years, or both.

§ 2387. Activities affecting Armed Forces generally;

§ 2388. Activities affecting Armed Forces during war;

§ 2389. Recruiting for Service against United States;

§ 2390. Enlistment to serve against United States deal only

with armed forces and war activities and as such not

that relevant here. § 2391 is repealed.

Also ‘Treason’ is defined, more narrowly than in

Britain, in the United States Constitution itself. Article

III, Section 3 of the American Constitution says:

“Treason against the United States shall consist

only in levying War against them, or in adhering to

their Enemies, giving them Aid and Comfort. No

Person shall be convicted of Treason unless on the

Testimony of two Witnesses to the same overt Act,

or on Confession in open Court.

The Congress shall have Power to declare the

Punishment of Treason, but no Attainder of

Treason shall work Corruption of Blood, or

Forfeiture except during the Life of the Person

attainted.” (to be continued)

ON THE DOCTRINE OF RAJADROHA♣♣♣♣

- I. Mallikarjuna Sharma

76 Law Animated World {15 October 2011} Postal Reg. No. HD/1098/2011-13

Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,

Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: [email protected]

andprinted at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}

76

Royal Garrison Artilliery howitzers Wilfred Owen

Wilfred Owen in action, World War I, 1916. [with his son?]

PREFACE This book is not about heroes.

English Poetry is not yet fit to speak of them.

Nor is it about deeds or lands, nor anything about glory,

honour, dominion or power, except War.

Above all, this book is not concerned with Poetry.

The subject of it is War, and the pity of War.

The Poetry is in the pity.

Yet these elegies are not to this generation,

This is in no sense consolatory.

They may be to the next.

All the poet can do to-day is to warn.

That is why the true Poets must be truthful.

If I thought the letter of this book would last,

I might have used proper names; but if the spirit of it

survives Prussia, --

my ambition and those names will be content;

for they will have

achieved themselves fresher fields than Flanders.

[This Preface, in an unfinished condition, was found among

Wilfred Owen’s papers and posthumously published.]

* * *

The Next WarThe Next WarThe Next WarThe Next War “War's a joke for me and you,

Wile we know such dreams are true.” - Siegfried Sassoon

Out there, we've walked quite friendly up to Death,-

Sat down and eaten with him, cool and bland,-

Pardoned his spilling mess-tins in our hand.

We've sniffed the green thick odour of his breath,-

Our eyes wept, but our courage didn't writhe.

He's spat at us with bullets and he's coughed

Shrapnel. We chorussed when he sang aloft,

We whistled while he shaved us with his scythe.

Oh, Death was never enemy of ours!

We laughed at him, we leagued with him, old chum.

No soldier's paid to kick against His powers.

We laughed, -knowing that better men would come,

And greater wars: when each proud fighter brags

He wars on Death, for lives; not men, for flags.

* * *

Bent double, like old beggars under sacks,

Knock-kneed, coughing like hags, we cursed

through sludge,

Till on the haunting flares we turned our backs,

And towards our distant rest began to trudge.

Men marched asleep. Many had lost their boots,

But limped on, blood-shod. All went lame, all blind;

Drunk with fatigue; deaf even to the hoots

Of gas-shells dropping softly behind.

Gas! GAS! Quick, boys! -- An ecstasy of fumbling

Fitting the clumsy helmets just in time,

But someone still was yelling out and stumbling

And flound'ring like a man in fire or lime. --

Dim through the misty panes and thick green light,

As under a green sea, I saw him drowning.

In all my dreams before my helpless sight

He plunges at me, guttering, choking, drowning.

If in some smothering dreams, you too could pace

Behind the wagon that we flung him in,

And watch the white eyes writhing in his face,

His hanging face, like a devil's sick of sin,

If you could hear, at every jolt, the blood

Come gargling from the froth-corrupted lungs

Bitter as the cud

Of vile, incurable sores on innocent tongues, --

My friend, you would not tell with such high zest

To children ardent for some desperate glory,

The old Lie: Dulce et decorum est Pro patria mori.

[a line from the Roman lyrical poet Horace’s Odes (III.2.13),

meaning: ‘It is sweet and elegant to die for one’s fatherland’.]

* * *

SOLDIER’S DREAM I dreamed kind Jesus fouled the big-gun gears;

And caused a permanent stoppage in all bolts;

And buckled with a smile Mausers and Colts;

And rusted bayonet with His tears.

And there were no more bombs, of ours or Theirs,

Not even an old flint-lock, nor even a pikel.

But God was vexed, and gave all power to Michael;

And when I woke he'd seen to our repairs.

[Wilfred Owen (1893-1918), another foremost English war poet;

was killed in action exactly a week before Armistice; a war

martyr; was also a sincere anti-War, pro-Peace poet.]

* * * * *

Dulce Et Decorum Est - Wilfred Owen*

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