Section 12 of the Kerala Buildings (Lease and rent Control) Act

(N. K. Sreedharan, Advocate, Ernakulam )

Sri. V.K. Sathyavan Nair, Advocate has posed 3 questions in his Article published in Part 26, Page 52, Journal Section of the Kerala Law Times assuming that S.12 of the Kerala Buildings (Lease and Rent Control) Act, Act 2 of 1965, creates an anomalous situation. The curious thing noticed by Sri. Nair is “that an order under S.12 (3) is not mentioned in S.14 which clearly enumerates the executable orders”. The learned writer concludes by saying that “the anomaly can be remedied only by necessary amendments”.

When I read through the learned treatise of Sri.Nair I feared that he had overlooked the amendment introduced to S.14 by the Kerala Buildings (Lease and Rent Control) Amendment Act 1966 (Act 7 of 1966). S.6 of the Amend­ment Act introduced an amendment to S. 14 of Act 2 of 1965 and made orders passed under S.12 also executable. So I took the liberty of pointing out this Amendment Act to Sri. Sathyavan Nair. He has taken exception to the manner and terms in which I wrote him. Further he has brought to my notice that the Amendment Act 7/66 has been virtually abrogated by the Kerala Re-enacting Act (Act 8 of 1968) and tried to convince me that at present an order passed

under S.12 is not executable as, according to him, we have now Act 2 of 1965 as it existed before the amendment by Act 7 of 1966 and has invited my attention to page 25 of 1968 KLT. Kerala Acts Volume. Thereupon I expressed regret.

But I will be untrue to myself and failing in my duty if I allow Sri. Nair and others influenced by the treatise, if any, to labour under the belief that what governs us today in the matter of Lease & Rent Control is “Act 2 of 1965 in its unamended form and that an order passed under S. 12 (3) is not an executable order.

Both the Acts namely the Kerala Buildings (Lease and Rent Control) Act (Act 2 of 1965) and the Kerala Buildings (Lease & Rent Control) Amendment Act (Act 7 of 1966) were enacted by the President. So these Acts required re-enactment under Article 357 (2) of the Constitution of India lest these Acts should cease to have effect on the expiration of a period of one year after the Proclamation had ceased to operate. Therefore the State Legislature re-enacted, among other Acts, these two Acts also by the Kerala Re-enacting Act 1968 (Act & of 1968). The 4th Act thus re-enacted is the Kerala Buildings (Lease & Rent Control) Act 1965 (Act 2 of 1965) as amended by Act 7 of 1966. Vide page 23 of KLT. 1968 Kerala Acts Volume. So at the time of re-enacting, the amendments introduced by Act 7 of 1966 were in the body of the original Act 2 of 1965 and it is that amended Act in the amended form that has been re-enacted. Thus in effect by the re-enactment the Kerala State Legislature has passed a Bui!dings(Lease and Rent Control) Act in its amended form. It will be seen that Ss. 2 to 9 of Act 7 of 1966 introduced only amendments to the various sections of Act 2 of 1965. Because the Amended Act has been re-enacted it was unnecessary to retain these provisions while re-enacting the Kerala Buildings (Lease & Rent Control) Amendment Act 1966 (Act 7 of 1966). That is why Ss. 2 to 9 are seen to have been omitted while re-enacting Act 7 of 1966. The result and effect of the said re-enactment is not to leave the Kerala Buildings (Lease & Rent Control) Act 19o5 in its original form before amendment. So in the present state of the law an order passed under S. 12 is one of the executable orders enumerated in S. 14.

The 3 questions posed by Sri. Sathyavan Nair are:-

(i) What are the legal consequences which follow an order under S. 12 (3) of the Kerala Buildings (Lease and Rent Control) Act?

(ii) Is the order final (?) and executable under S. 14 of the Act? (iii) Do the provisions of S. 11 apply to cases covered by an order under S. 12 (3) -?

The answers would appear to be:- (i) The tenant will have to vacate.

(ii) The order is clearly executable. So no amendment as suggested is necessary.

(iii) Provisions of S. 11 cannot apply as the Sections, independent as they are, provide for different contingencies.

The object of the Act is not to enable tenants to remain in occupation of another man’s premises without payment of admitted arrears and rent. There is no injustice or infringement of any primary right, in imposing such a condition as in S 12 on the tenant. He should not be allowed to eat his cake and have it too. The tenant should not be allowed to resist an application for eviction for long and at the same time escape payment of undisputed rent and arrears The avowed object of the Act is only to regulate the leasing of buildings and to control the rent, and is certainly not to relieve defaulting tenants of their obli­gation to pay even the admitted rent.

A Patron Saint For Criminals!

(T.G. John, Advocate, Trichur)

The following is the true life story of one of the most perverted sadistic killers of the last century-Peter Kurten, otherwise known as the Wolf of Dus-seldorf. Much of the information we have about Kurten, we owe entirely to the , researches made by Dr. Karl Berg who came to know the criminal well before his execution and who was also a witness at the trial of Kurten which opened on 13th of April, 1931 in Germany before a Bench of three Judges.

Peter Kurten was born in Koln-Kulheim in Germany in 1883, the son of a moulder, a violent and boastful man, given to drunkenness. Kurten was the third of thirteen children. The family of fifteen was very poor and lived for a time in a single room. The environment was heavily charged with sex. Accord­ing to Kurten himself all his sisters were over-sexed and one made sexual advances to him. Kurten was apparently not interested in her, but he attempted incest with another sister-a sister whom his father attempted to rape and on whose account the moulder served a term in prison. Kurten senior was in the habit of forcing his wife to have intercourse when he came home drunk, and bur hero was often witnessing his mother being raped. He ran away from home at the aae of eight, but returned shortly. When Kurten was twelve, all of them moved to Dusseldorf. But according to his own confession, he had already com­mitted his first murder.

In November, 1899, according to Kurten’s own account, he committed his first adult murder by way of strangling a girl while having sexual intercourse with her. After undergoing brief prison sentences for various thefts, he was released from prison in 1912 and the-next year he committed a full-fledged sexual murder. He had become a specialist in robbing business premises. He entered a pub in Wolfstrasse, on an evening. The major members of the family who were running the pub, were out at a fair. In one of the bed-rooms he found 13 year old Christine Klein asleep. He strangled her, cut her throat with a knife and penetrated her sexual organs with his fingers. He dropped a handkerchief with his initials on it-P.K. But it happened that the father of the victim was called PeterKlein, and his brother Otto had quarrelled with him and threatened to do something that Peter would remember all his life. Otto Klein was arrested and tried but was released for lack of evidence. A few weeks after this crime Kurten was again about to attack a sleeping girl when some­one woke up and frightened him off. He also attacked an unknown man and unknown woman with a hatchet, securing sexual orgasms by knocking them unconscious and seeing their blood!

The year 1929 began with six more cases of arson of barns and stacks. Then on 3rd February, one Fran Kuhn was walking home late at night when she was suddenly attacked by a man with a knife. She received twenty four stab-wounds. A few days later on 13th February, a 45 year-old mechanic named Scheer was found dead in the roadway in Flinghern; he had been drunk when attacked and had been stabbed twenty times. On 9th March the body of a 8  year-old child Rose Chliger was found lying behind a fence on a building site. She had been stabbed thirteen times:

In September of that year, Kurten attacked three more girls and threw one of them into the river after his attempted strangulation. But these events caused little sensation in comparison with the next murder which occurred in late September. Another servant girl called Ida Renter, set out for her Sunday afternoon walk and never returned; the next day, she was found in a field in Rhine Meadows. Her head had been battered with a heavy instrument and her hand-bag and knickers were missing; she was found in a position that indicated sexual assault.

On 7th November, a 5 year-old child, Gertrude Albermann was missing from her home. Two days later her body was found near a factory yard, among nettles and brick rubble. She had been strangled and stabbed thirty six times.

The episode that led to Kurten’s arrest took place on 14th May, 1929. A servant girl named Maria Budlick-who according to Kurten, was ugly and bow-legged-came from Cologne to Dusseldorf looking for a job. The woman who was due to meet her at the Station failed to appear, and she was picked up by a man who attempted to persuade her to go into a park. Remembering stories of the monster, she refused. He persisted and while she was arguing with him, a pleasant soft-spoken man came up and turned him away. The soft-spoken man asked the woman whether he could be of any assistance to her. Maria willingly accepted the new friend’s offer of refreshment in his home at 71 Mettmannestrasse. Here Kurten-the soft spoken-man-gave her a glass of milk and some bread and ham and offered to take her to a hostel. As soon as they were alone Kurten tried to have sexual intercourse with her standing up, at the same time seizing her throat. Then he released her, and asked if she remembered where he lived. She said no, so he left her alone.

Later Maria wrote about her midnight adventure, in a half joking vein to a woman who had met her on the train. The letter went to the wrong woman, since the name was mis-spelled and the woman who opened it and read it handed it to the police. The police traced the letter to Maria Budlick and from there to Kurten. Peter Kurten was finally arrested.

Kurten made a full confession of all murders. Professor Karl Berg, the psychiatrist was introduced to Kurten who remarked that Kurten was an exceptionally intelligent and truthful man. Some of the things which Kurten revealed to him were shocking. Kurten revealed to Berg a curious aspect of his sadism-an element of necrophilia. In one case known Hahn case, Kurten had sexually assaulted his victim both annally and vaginally, leaves and earthmould were found in the anus of the naked dead body. Kurten admitted how, after killing her, he had buried her roughly. Later he decided to alter the location of the grave; he also had an idea that it would be exciting to crucify her body on two trees and leave it to be found. However the body was too heavy; nevertheless Kurten changed the location of the grave and admitted to kissing and fondling the victim when he had dug her up. He returned often to the site of the grave and masturbated on it!

Kurten’s trial opened on 13th of April, 1931. In accordance with the German custom, it took place in front of three judges. Kurten’s counsel was Dr. Wehner, a young lawyer. The prosecution was led by the Public Prose­cutor, Dr. Jansen. Dr. Jansen requested several times that the press and the public should be excluded But was not allowed Prefessor Berg and Sioli gave evidence for the prosecution, while Professor Rather gave evidence for the defence. The defence was insanity at the times of the murders. The case closed on 23rd of April. The jury went out for an hour and a half and Kurten was sentenced to death nine times for murder.

It is indicative of the extreme liberalism in Germany in the early 1930’s that there was something of a storm at the death penalty on Kurten, and the German Humanitarian League protested. Kurten appealed but the appeal was rejected.

Kurten was executed at six o’ clock on the morning of 2nd of July 1931. He enjoyed his last meal-of Weiner Schnitzel, Chips and white wine-so much that he asked for it again. He told Berg that his one hope was that he would hear the sound of his own blood running into the basket which would give him intense pleasure. He also admitted to the psychiatrist to wanting to throttle Berg’s stenographer because of her slim white throat! He was gullotined, and seemed cheerful and unconcerned to the last.

Judicial Carelessness

(N.K. Sreedharan, Advocate, Ernakulam)

To err is human. Judges, being human, are no exception. They are not infallible. Nevertheless by virtue of Article 141 of the Constitution of India, law declared by the Supreme Court, though obviously wrong, prevails and binds all courts in the country until, of course, it is subsequently discovered and de­clared to be wrong or obiter by the Supreme Court itself.

Judges may take different views on a point. Judges may decide a point according to their understanding of the question involved and their conviction. So we have instances of the Supreme Court reviewing and overruling its own decisions. Classical illustration is afforded by Golak Nath’s case (AIR. 1967 SC. 1643). Such difference or progress of views, as inevitable in the nature of things, can be appreciated.

But if by some carelessness a wrong view is made to hold the field and influence many a decision and affect several litigants, that is a grievous matter.

Even after the Fourth Amendment of the Constitution in 1955 whereby adequacy of compensation was made non justiciable, a Constitutional Bench of the Supreme Court, in AIR. 1965 SC. 1017 held that the compensation must be just equivalent. This decision was followed in AIR. 1967 SC. 637 (Union of India v. Metal Corporation of India Ltd.)

Now another Constitutional Bench of the Supreme Court in AIR. 1969 SC. 634 (State of Gujarat v. Shantital) has held that the observations in AIR. 1965 SC. 1017 are only obiter and not binding and overruled AIR. 1967 SC. 637. The Supreme Court has now in unambiguous terms stated that principle for determination of compensation or adequacy of compensation is not justiciable.

In an explanatory judgment, Chief Justice Hidayatulla says:-”It is certainly out of the question that the adequacy of compensation (apart from compensation which is illusory or proceeds upon principles irrelevant to its determination) should be questioned after the Amendment (Fourth) of the Con­stitution. The Amendment was expressly made to get over the effect of the earlier cases which had defined compensation as just equivalent. Such a question could not arise after the Amendment”. But His Lordship gives a frank expla­nation for the observation in AIR 1965 SC 1017 which misled the courts in the country all these years in the following words:-

“However it is proper for me to say a few words in explanation since I was a party to P.Vajravelu Mudaliar’s case (AIR, 1965 SC. 1017) and the obiter pronouncement of some opinions there. That case was heard with N.B. Jeejeebhoy’s case (AIR. 1965 SC. 1096). One was a post-constitution (Fourth Amendment) case and the other a pre-constitution case. The Judgments in the two cases were delivered on the same day. It appears the reasoning in the two cases was not kept separate and the whole of the matter was discussed in a case in which it was not necessary for the ultimate condition. Because of the close proximity of the decisions it escaped me that the discussion was io the wrong case and the other merely followed it”.

Now imagine the havoc this obiter discussion in a wrong place will have played in the disposal of causes. We were obliged to accept and follow the view that the Fourth Amendment of the Constitution despite its clear meaning had not made any change in the law from that laid in State of West Bengal v. Bela Bannerjee (AIR. 1954 SC. 170).

Negligence of a driver causes an accident. Miscalculation on the part of a General may result in the defeat of an army. Carelessness on the part of judges is not in any way innocuous. The higher the Court the greater will be the extent of harm done by a careless and unnecessary discussion of a question. Opinion of the Supreme Court though obiter is normally binding on other Courts. In such a situation any slight judicial carelessness will result in grievous and perhaps irreparable injury.

The March of Time

(T. G. John, Advocate, Trichur)

"Ring out the old, Ring in the new,

Ring, happy bell's, across the snow;

The year is going, let him go;

Ring out the false, ring in the true,

Ring out a slowly dying cause

And ancient forms of party strife,

Ring in the nobler modes of life,

With sweeter manners, purer laws".

                                                        Lord TENNYSON

From the exalted position of a scoundrel, the Indian politician has further degeneated into a double-crossing blackmailer. He still carries the junk of politics on his head obviously for sale. His love of defection has made his activities more nostalgic than that of a 'swine'. But all of them are vociferous in asserting in unison that there is nothing extraordinary in their defection misadventures since it is consistent with the nonalignment foreign policy of India! To quit a party when its fortunes are diminished has become the creed of the Indian politician.

Elsewhere it is not always considered so. In the view of many Americans Richard Nixon brought disrepute to the Republican party. Its members were shocked and bewildered by the Watergate revelations. But there was no exodus of Republican politicians to the Democratic party. Mr. Nixon's sins did not overnight transform the Republican party into a diseased and dying camp that had to be vacated. Nor did Republicans seek to float to office on the Democratic tide.

But what is happening here? Loyalty and continuity are values that have been periodically smashed in the long story of our motherland Dynasties, organisations, and political parties have glowed for a time and burst. Governments are toppled and headlines made. But does that make history? Some name plates outside Government offices and some details in the telephone directories do alter, but the contours of our society and the privations of the needy remain as they were.

The legislatures should be freed from the clutches of such pouchy weathercocks who style as politicians and then only we can breathe a whiff of pure air with purer laws.

High Court of Kerala Statement of Filing, Disposal and Pendency

HIGH COURT OF KERALA MAIN CASES