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Report No. 192

Madras Vexatious Litigation (Prevention) (Act 8 of 1949):

The above Act was designed to control vexatious litigation. It refers to persons who habitually and without any reasonable ground, institute vexatious proceedings, civil or criminal. Sections 2, 3, 4 and 5 of the Act, provide for declaring a person as a vexatious litigant upon the application of the Advocate General and once he is so declared, he cannot initiate any action of a civil or criminal nature without prior leave of the Court. The declaration will be published in the State Gazette. The following are the relevant important provisions.

"Section 2(1): If, on an application made by the Advocate General, the High Court is satisfied that any person has habitually and without any reasonable ground instituted vexatious proceedings, civil or criminal, in any court or courts, the High Court may, after giving that person an opportunity of being heard, order that no proceedings civil or criminal, shall be instituted by him in any Court -

(i) in the Presidency - town, without the leave of the High Court; and

(ii) elsewhere, without the leave of the District and Sessions Judge.

"Section 3: The leave referred to in section 2, sub section (1) shall not be given in respect of any proceedings unless the High Court or, as the case may be, the District and Sessions Judge, is satisfied that there is prima facie ground for such proceedings."

"Section 4: Any proceedings instituted by a person against whom an order under section 2, subsection (1), has been made, without obtaining the leave referred to in that sub section, shall be dismissed.

Provided that this section shall not apply to any proceedings instituted for the purpose of obtaining such leave."

"Section 5: A copy of every such order made under section 2, subsection (1), shall be published in the Fort St. George Gazette".

The above provisions of the Madras Act were challenged as bad for want of legislative competence and also as offending Arts 14 and 19 of the Constitution of India. The said challenge was rejected by a Constitution Bench of the Supreme Court in P.H. Mawle v. State of A,.P., (AIR 1965 SC 111827). Hidayatullah J (as he then was) pointed out that such legislation were there in England, namely statutes 16 and 17 vict Ch 30 (1896), later replaced by section 51 of the Supreme Court of Judicature (Constitution Act, 1925)(15 & 16 Geo Vc. 49). (These laws have since been replaced by section 42 of the Supreme Court Act, 1981).

In the Supreme Court, an argument that the Madras legislature had no competency as it was not covered by any entry in List II or List III of the Government of India Act 1935 was rejected. It was stated that the subject of the said legislation was covered by Entry 2 of List II (Jurisdiction and powers of all Court except the Federal Court, with respect of the matters in this List; procedure in Rent and Revenue Courts), and entry 2 of List III (Criminal procedure, including all matters included in the Code of Criminal procedure at the date of passing of this Act) and Entry 4 of List II (Civil procedure, including the law of Limitation and all matters included in the Code of Civil Procedure at the date of passing this Act) of the VII Schedule to the 1935 Act.

The Supreme Court, after upholding the legislative competence of the Madras Legislature considered the validity vis-à-vis Art 14 and Art 19 of the Constitution of India. It was argued that Art 14 was attracted because litigants were being divided into two classes and being discriminated. The Supreme Court rejected the contention that

"the litigants who are prevented from approaching the Court without the sanction of the High Court etc. are a class by themselves. They are described in the Act as persons who 'habitually' and 'without reasonable cause' file vexatious actions, civil or criminal. The Act is not intended to deprive such a person of his right to go to Court. It only creates a check so that the Court may examine the bona fides of any claim before the opposite party is harassed. Such an Act was passed in England, has been applied in several cases to prevent an abuse of the process of Court.

In its object, the Act promotes public good because it cannot be claimed that it is an inviolable right of any citizen to bring vexatious actions without control, either legislative or administrative. The Act subserves public interest and the restraint that it creates is designed to promote public good. The Act does not prevent a person declared to be habitual litigant from bringing genuine and bone fide actions. It only seeks to cut-short attempt to be vexatious. In our judgment, the Act cannot be described as unconstitutional or offending either Art 19 or Art 14".

Madras Act 8/49 is confined to old geographical areas of AP, Kerala and Karnataka which were parts of Old Madras Province before the SR Act, 1956:

Another question that arose in P.H. Mawle v. State of A.P., AIR 1965 SC 1827 referred to above was whether the High Court of Andhra Pradesh was right in applying the provisions of the Madras Act 1949 to the cities of Hyderabad and Secunderabad where the appellant was filing a number of cases. The Supreme Court, after referring to sections 65 and 119 of the States Re-organisation Act, 1956, held that the previous law in operation before 1.11.56 in the respective parts of the newly formed State of Andhra Pradesh was confined to the geographical limits in which it was operating before 1.11.56 and could not be extended to other geographical areas of the new State of Andhra Pradesh unless this was done by the legislature of the newly formed State of Andhra Pradesh.

The Madras Act, 1949 was, therefore, held not applicable to the cities of Hyderabad and Secunderabad, which were outside the territorial limits of the former State of Madras. In the State of Kerala, a similar question arose in Advocate General v. T.A. Rajendran, 1988(1) KLT and in Jose v. Madhu, 1994(1) KLT 855 and it was held that the Madras Act of 1949 was not applicable to the areas in the State of Kerala except in regard to the North Malabar area which was part of the composite State of Madras before 1.11.56.

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