The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated (Lands) Act. 31/75, Its Amendments and Consequences

(By R. S. Ramakrishnan, President, Consumer Disputes Redressal Forum, Palakkad)

The less fortunate amongst our brother are still living in lulls and such other places tar, far away from the limits of the so called educated sophisticated area. The mentality of man being selfishness, the urge for getting more and more property induces him to search for avenues of gain or other modes of acquisition of property. The Scheduled Tribes in these parts live in hilly areas, who happen to be the victims of the greed of the educated, a greed of his opposite. These hill tribes living in these far off places earn their livelihood by cultivation, either as owner, or as labourer. The extent of the property in no case is considerable. Hence, the Kerala Government has thought it expedient to gram these people small pieces of land in the hilly areas for their existence. In this way also these scheduled people happened to own small parcels of land for their existence.

Certain situations in which these scheduled tribe people find themselves in. are taken advantage of by some persons who intrude themselves into these areas with some money and utilise that situation to deprive the scheduled tribe people of their belongings, movable and immovables, instances are not wanting wherein, these unfortunates are deprived of their lands on payment of considerations, very significant. Other modes of deprivation also do exist. In all these cases, the effect is the same, the poor tribesman is deprived of his property, ostensibly, legally. That really happens in more cases than one. This kind of devastation, if I may put in that form, has taken root and a survey in this regard has shown certain results which unless checked by law would attain proportions beyond limit.

The Kerala Government, therefore, thought it necessary to introduce law in the form of an Act and (hat is Act 31/75, which received the assent of the President on 11.11.1995 and it came into force front the date of publication in Kerala Gazette dated. 14.11.1995.

The scheme of the Act consists in the restoration of the lands already alienated before the commencement of the Act and after 1.1.1960, and secondly the prohibition of the alienation after the commencement of the Act. The 1st portion is simple, since it was declared that the transfers during that period are deemed to be void, with the consequential right of the transferor to have a retransfer. The argument that seems to have been advanced is that the transferees in such cases, had parted with their money and also would have affected improvements which would deprive them of their valuable right of owning or otherwise dealing with his property namely money. It seems to have been also argued that bonafide transfers also do exist. This has been met by the Act itself by providing for re-imbursement under the said two heads, namely paying down the money and the value of improvements. The transferee gets his quid pro quo either in full or to the extent he is entitled for his transferring the property to the original transferor. This provision is a salutory one. For one thing, the transferor gets his value, for another il meets the argument that the provision is unconstitutional. I am not dealing with (he constitutional aspect herein as il is only unnecessary at present.

The order and most important provisions of the Act is contained in the prohibition of the transfer after the Act and penal provisions that visit the transferee for the violation of the prohibition. The idea is not far difficult to be sought. The transferor backward tribes man. might find himself in situations wherein monitory assistance is essential, being pressed in this regard he might of his own will transfer his own property. If such a safety valve is not provided for in the Act, then the purpose of the Act itself would be defeated. The hill tribes man in such a situation is akin to a patient or otherwise a defective minded man in the eye of law. Such persons are to be protected not withstanding their doings. Hence, there is an absolute prohibition of transfer. This absolute prohibition would be of no avail unless a penal provision is enacted for contravention thereof.

The relevant portions of the Law in this respect are discussed in a very summary manner.

1. The implementation of the Act is left into the hands of the District Collector as in any other matter. To me it appears that the District Collector's anvil are already full and hence, another officer of equal rank preferably chosen from the judiciary would have been better and happier. This is only mentioned in passing of. The contravention of the provisions in the Act, the direction for reconveyance i.e., the restoration, and connected matters are to be done by the District. Collector who is termed as the 'Competent Authority'. The 'Competent Authority', therefore, is the head of the Executives in this regard. This concentration of authority would necessarily involve delay in implementation even if a separate section is officed in the Collectorate, which in its turn would be the 'note putting" section and invariably and ordinarily these notes are the guidelines of the actions of the Collector. Such notes are not subject to correction or verification. With the consequential draw back of "becoming a slip in the direction of error or of excessive, correctness. Be it as it may, the Act as at present enjoins the District Collector the duties in the matter of implementing the provisions of the Act.

Another important provision of the Act is the definition of the word transfer. In the “Anyadeenapeduthuka". That idea is conveyed by the definition in the word "Transfer" with some additional word vila panayam and unduruthi. The summon bonum of the word "'transfer" consists in the preservation of the immovable property of the tribesman without any encumbrance whatsoever. Any transaction by which these immovable properties are subject to any sort of liability, whether it be for real or true or absolute necessity is eschewed. This is the salutory rule in the interests of the tribesman. The question that might crop up in the matter of such absolute prohibition is and to how the tribesman would be above to meet his demands in money if the 'Transfer" is prohibited. . It is to meet such contingencies that provisions for granting the necessary help are introduced. In this way, the imagined hardship is crossed over:

The regulations for implementing the Act were framed only in 1987, with retrospective effect from 1982. The alienation of lands subsequent to 1982 were not recognised and were also prohibited. Such transfers would entail criminal prosecution also. As per this Act, the tribals filed petitions before the Revenue Divisional Officer for the restoration of their lands transferred earlier. Now, it is understood that about 8000 tribals alone had taken steps to the re-transfer of their lands.

At this juncture, it would be only necessary to mention the exemption provision and I hey are as in any other law the public dues and also dues to the banks and Co-operative Societies. Yet another feature of the Act that is to be mentioned in passing is the penalty provision in the Act and the cognizance of offences. S. 13 of the Act mentions the penal provisions and S. 14 mentions that only Magistrates of the Cadre of 1st class alone are competent to take cognizance of the offences. The complaint in this regard is to be filed by the Revenue Divisional Officer having the jurisdiction or by any aggrieved person. Two other minor matters consist in the immunity of the tribesman from Chap. X of the Code of Criminal Procedure and ban of the legal practitioners from appearing in cases connected with the Act. From the very nature of things there cannot be any application regarding dispute as to possession, if the Act is implemented properly. Even if any other matter arises, it can only be between inter tribesmen. The non-applicability of the Chapter X of the Cr. P.C. in its absolute form, might create difficulties unless the Act is suitably amended. As to the disability of the legal practitioner to appear and plead, the reason is not far to seek. The last section need not be considered herein as it is "Saving' section. No doubt other provisions that succour to the needs of the tribesmen do exist. This Act is in addition to those provisions. I am not touching the constitutional aspect of the law in question nor do I consider it necessary. Directive principles enshrined in the Constitution are indended only for such purposes as are mentioned in the Act. That being so, the validity following at close heels the directive principles contained in the Constitution.

I have dealt with the Act, in the main, as to the purpose of the Act and the implementation of its provisions in a very short manner.

The tribals of Kerala State, of late initiated action demanding implementation of the above said Tribal Act, 1975. They also moved with the Government, a number of times, praying repossession of the lands usurped from them. In a pending case, the Hon'ble High Court of Kerala recently had directed the Government to restore the alienated lands of the tribes within six weeks. But the Government proposed to amend the existing Act, so as to provide alternative lands to the tribals instead of their lands once alienated. Accordingly, the Government introduced bill in the last session of the Kerala Legislature Assembly and got it passed into Act. This is because the Government does not wish to evict the settlers who are already in possession, cultivating lands, raising crops, and making improvements therein. The tribals who were originally owners of lands, were dispossessed from their lands, when settlers began agricultural operations there. As per the Kerala Land Reforms Act, 1970, the ownership of lands vested with the settlers and the illiterate unfortunate tribals became bonded and paid labourers of their own lands. By the implementation of the amendment, to Act 31/75, the tribals would be displaced from their own lands where they have been residing there for years. By the amendments it is understood that the Government only proposed to pay some compensation and one acre of land to the tribals. This would only throw the tribals here and there. And the development programmes would never benefit them. The actual beneficiaries would be settlers. As per the present set up, the encroachers are being permitted to settle in tribal lands by distributing title deeds to them and whereas the tribals do not have any documents to prove their possession of lands.

We have yet to see how far the amendment will benefit the tribes.

Art of Advocacy and Professional Management *

(By T.P. Kelu Nambiar, B.A.M.L.)

“Have you seen God”, was the question raised by Narendra (who later became Swami Vivekanada) when he met Sri Ramakrishna Paramahamsa, to which the reply was: "If you take efforts, I shall try to help you." The message of Sri Ramakrishna was, "search for God." Refraining Narendra's question, if you ask me : "Have you seen Hortensius", I would venture the same reply: "If you take efforts, I shall try to help you." (Mark, Hortensius, according to Cicero, was the greatest of advocates).

Today is the day of great expectations for you. Today is the day on which you are expected to know the rise and fall of the legal profession.

I am delivering a carefully drawn up script. It is in the direction of an "Operation Save Profession." My views may be considered ponderous, coming as they are from a person who has already seen more than seventy summers, of which about forty-five are as a lawyer; and who has been witness to the good, bad and ugly side of the profession, in his capacity as a young lawyer, a Senior Advocate and the Chairman of the Disciplinary Committee of the Bar Council of Kerala for about nineteen years now. I have witnessed the glorious past. I do not know whether I would be able to see an exciting future. The trailer of events to follow is not encouraging. The script of the profession's reversion seems to have been written. The bottom line is, the profession is losing its nobility. The profession seems to be moving towards Zero-sum-game. I may not be looked upon as a doomsayer.

Who is to be blamed for the profession's shame, is a difficult question to answer. Nobody bats an eye on the sad state of affairs. Nobody seems to try to reset the profession, though the allegations against the profession are flying thick and fast.

Now, without trying to counter controversy with controversy, let us try to resolve the issue. The winners of tomorrow will be those who consolidate today. The higher you aim, the higher you reach. I want to convey certain message to you via this address, casting aside the inquisitorial hectoring of the profession's present position. In the process I may venture certain Confidence Building Measures. If you follow the points, they may help you to succeed now, though there is no guarantee of its durability.

Legal profession today can be compared to a withering wife, after her husband's death; here; after the death of advocacy. Advocacy is the life-line of the legal profession.-For effective advocacy, I believe, a lawyer should be comfortable in the English language. Therefore, make a strong pitch for the study of English. Try to make your mind your dictionary in English. I had occasion to refer to this aspect in the Pre-enrolment lecture delivered by me in March 1992 under the joint auspices of the Bar Council of Kerala and the Indian Law Institute. Kindly permit me to quote me, though, of course, I have obtained my own permission :

"I should draw your attention to an important factor which goes in the making of a good lawyer, that is language. Scott said; "A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect." Therefore try to bean 'architect' lawyer, without remaining a mere 'mason' lawyer. On this aspect, I commend the views of Glanvilie Williams on general reading by lawyers. The learned Professor asks lawyers to read Shakespeare, Dickens, Henry Fielding, Thackaray, Samuel Warren, Galsworthy, Sir Waller Scott, R.L. Stevenson, Trollope, Emily Bronte, George Eiot and H.C. Leon, who wrote under the pen-name Henry Cecil. There are a number of legal references in Shakespeare and this has given rise to a theory that he was a lawyer. Charles Dickens started life as a lawyer's clerk and court reporter, and most of his novels contain legal characters or legal references. Henry Fielding was a lawyer and later a London Magistrate. Thackeray, Samuel Warren, Sir Walter Scott, R.L. Stevenson and Henry Cecil were all lawyers. Their famous works are prolific in legal allusion, combined with literary excellence. Apart from legal literature, a lawyer would be greatly benefited by reading pure literature, literary works of famous authors like Mathew Arnold, William Hazlitt, Oscar Wilde, G.K. Chestarton, W.B. Yeats, Edmund Burke and Dr. Johnson. Lord Denning said: "To succeed in the profession of law, you must seek to cultivate command of language............Words are the lawyers' tools of trade..........As a pianist practices the piano, so the lawyer should practice the use of words in writing and by word of mouth."

Incidentally, let me venture the view that apprentices-at-law are unborn lawyers; they should be taken care of, as it is done in the case of unborn children. And, one year training prescribed by (lie Bar Council is a pre-qualification for eligibility to be lawyer. Therefore, they should try to secure a higher score in the venture.

I should think I have not yet begun the subject of the address. Let me begin now, and that with the supplication or invocation, that is the Preamble to Chapter II of the Bar Council of India Rules, which is the discipline of the profession :

"An advocate shall, at all limes, comport himself in a manner befitting h is status as an officer of the Court, a privileged member of the community, and a gentlemen, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of die Bar in his non-professional capacity, may still be improper for an advocate."

This guideline is of tremendous validity, especially to a beginner in the profession; and if you adhere to this guideline, and remain absorbed in the present, you will have no past regrets and future fears. You may sometimes feel defeated. Reconciliation with defeats may seem impossible but. it is inevitable. Initial defeat does not preclude ultimate success, for such defeat is unlike the terminal illness of an old man. A strong mind can control the situation. Never mind perverse coincidences.

The sovereign method to reach God, is devotion; and that itself, that is, devotion to the profession, is the efficacious method to reach the pinnacle of the legal profession. The time devoted to the profession is time well spent. And your great unspoken ambition should be to be Number One in the profession. And, in this profession, everyone could be Number One as there is no reservation for the position. Enjoy me feeling or utter dedicating to the profession. Intense concentration gives rise to inspiration which is called pure devotion to professional duty; from it arises the blaze of dedication and sense of responsibility, which every lawyer should have. Be pure perfection as a lawyer, remembering, man's prized possession is his character; and a tarnished image is worse than death. Hard work is the summary of the legal profession. "Let not your attachment be for inaction."

Feel comfortable with your profession. Lawyers can get into trouble just because they are lawyers. Try to acquire the wisdom of the wise and the splendour of the splendid. The body-mind complex is a wonderful instrument. Separate the advocates from the lawyers.

Confucius once said: "You cannot see anything, if you learn but not think, and it is dangerous to think without learning." Therefore study your brief thoroughly and argue. Some advocates fumble generously at die Bar. Reason : lack of study and preparation of the brief. Such persons remain only as ad hoc lawyers. Be thorough with every aspect of the case, apposite or opposite. Is it not said that it is better to retain a comb even if your head has only scarce hair-growth on it. You should start moving and performing, not merely surviving. Play well in the Court and try to net every (good) point you have. Try to understand the locus of the problem. First, tame your mind, as an untamed mind is dangerous to advocacy. A swimming pool is a sport for one who knows swimming; but for one who does not, it becomes a death-trap.

Your arguments should not be long on facts but short on matter. If you fail to measure time when you argue, your argument is apt to be measureless, also, with no result. Try to stump your opponent with good deliveries. Project yourself by performing better than your opponent, just as you could shorten a line drawn without erasing it, by drawing a bigger line by its side so as to make the original line look smaller. Take time to process your submissions. Do not argue in 'sweaty hate". Argue, galloping thoughts, gradually; provide clarity to the confused. Try to get from the judge undivided attention to you.

The judge, sometimes compelled to sit in suffering silence, ultimately, is to deal with the arguments as a tale of two cases, though only one case is argued by opposing counsel. You should try to hijack the arguments of the opponent. Try, of course, to protect yourself; but not to insult your adversary. Upgrade your relationship with your brethren at the Bar. Respect seniors in the profession. Senior advocates remain a powerful presence at the Bar. You must have the admirable gift for not being provoked. Strive to see the good side of the profession; and, never the other side. Realise the importance of being "Advocate Mr. So-and-so." By protracted discipline, you can achieve anything. Keep in mind the difference between pure steadfastness and sheer stubbornness when you argue. Be steadfast, never stubborn. Be "passionately devoted" to the defence of your client, as John Mortimer QC said. You may hiss, but not bite, like the proverbial snake. To be a great lawyer, you need not look dangerous or fearsome to your opponent. Sing your contentions with head and soul. Try to be a "primal person" in the profession. Behold, and a man of amazing agility; but remember that you cannot equate contempt with courage or insults with independence. Your Original constituency should be the Court. To culture your profession, you should study well; and try to be dignified. Make a bold assertion of your professional duty. Use your faculties of speech, vision, taste and listening to the best of advantage. Jeremy Bentham said : "What the non-advocate is hanged for, the advocate is paid for, and admired." Your effort should not be only to pull the rug from under the feet of the opposing counsel, but to fulfill your duties and obligations to your client and the Court. Do not interrupt either the Court or the opposing counsel.

Interruption is a double-edged weapon. It can be answered only by interruption. And, interruption, is not answering. Do not be dejected for not obtaining centum in all your arguments or briefs. An advocate is paid to argue the point, not to decide it, as David Pannick said.

I should think, today one becomes a lawyer all-on-a-sudden. Our tribe is increasing like baby-boomers. Juniors do not learn under seniors. It is not enough that you come into die profession with an impressive inheritance. Too much will not come too early for a young lawyer. (I take pride in declaring that I have emerged from the shadow of my senior). The difference in years of practice between a senior and a junior, these days, is only a few months. There is no attempt to study the judge. A lawyer has to study the judge as much as, or more than, he studies his brief. A lawyer should try to capture the mood of the Court. Reap your reward by careful advocacy. An ignorant, arrogant and boisterous lawyer is an insult to the profession; and he would find his place in Davy Jones's locker only. Remember, there are sure cases, (sure to succeed or sure to lose), border-line cases and predictably unpredictable cases. Keep in mind the motto: "No ego, no anger, no malice, no greed, no jealousy."

It is said, forbearance can be learnt from a donkey; foresight from an ant; determination from a spider; fidelity from a dog; the virtue of monogamy from birds; and jealousy from lawyers. You should try to prove that the last is not true, by shedding the green-eyed monster. Bear and conquer by patience. Herbert Spencer was probably having lawyers in mind when he coined the expression "survival of the fittest." Do not be disheartened. So long as the adage that "one who is his own lawyer has a fool for his client" is remembered, lawyers would continue to function and exist.

You should be excessively intolerant of slipshod work and irritatingly insistent of pursuing excellence even in tasks which hardly demand it. Maintain a smooth record of consistency in the profession.

An advocate is an officer of court, not a mere mouth-piece of the client; his loyalty is to the law. Do not allow your morale to sag.

If you play your professional game well and carefully, your dice will hit only the ladder, not the snake at all. Be a law-eater advocate. You should culture the profession of law by studying well and trying to be dignified. Avoid unsound or perverse submissions; and thus maintain your riding weight. Try to be a man tuned to the ethics and culture of the law. Emerge as a hero, not a villain.

Do not indulge in competitive servility and sychophancy. A judge's sound is no music. A judge is not a lawyer's care-taker. Recently we perceive the tendency of a built-in institutional antagonism between the Bench and the Bar. The difference between the Bench and the Bar seems to be that between the jailor and the prisoner, though they are under the same roof. The Bench should not be the tormentor of the Bar, or vice versa. The Bench and the Bar should sign a CTBT, I mean, Comprehensive Tussle Ban Treaty.

A lawyer should be an adept in non-legal subjects also. This was indicated by H.D.C. Pepler in "The Devil's Devices." I would like to read Pepler :

                                       "The law the lawyers know about

                                       Is property and land;

                                       But why the leaves are on the trees,

                                       And why the waves disturb the seas,

                                       Why honey is the food of bees,

                                       Why horses have such tender knees,

                                       Why winters come when rivers freeze,

                                       Why Faith is more than what one sees,

                                       And hope survives (lie worst disease,

                                       And Charity is more than these,

                                       They do not understand."

I feel in profound sense that an Advocate should be moulded to perfection; and should be profoundly interested in the upgradation and purity of the profession; and should not abuse the confidence reposed in him by his client.

The legal profession has inherited the highest tradition; it is not, therefore, permissible to follow the lowest professional ethics. The profession is one which can conserve without plundering and create without destroying. The members of the profession must set an example of conduct worthy of emulation. Some lawyers, I regret to say, seem to forget the profession, which is a public profession, and remember only the practice thereof. As observed by Mr. Justice V.R. Krishna Iyer in Bar Council of Maharashtra v. M.V. Dabholkar (AIR 1975 SC 2092), if pathological cases of member misbehaviour occur, the reputation and credibility of the Bar suffer a mayhem. The learned judge observed :

"The Bar is not a private guild, like that of 'barbers, butchers and candlestickmakers' but, by bold contrast, a public institution committed to public justice and pro bono public service. The grant of a monopoly licence to practise law is based on three assumptions: (1) There is a society useful function for the lawyer to perform; (2) the lawyer is a professional person who will perform that function; and (3) his performance as a professional person is regulated by himself and more formally, by the profession as a whole. The central function that the legal profession must perform is nothing less than the administration of justice."

An Advocate practising the law is under a triple obligation, an obligation to his clients to be faithful to them unto the last, an obligation to the profession not to besmirch its name, or injure its credit by anything done by him, and an obligation to the court to be and to remain a dependable part of the machinery through which justice is administered. The profession cannot afford to have a member who fails in keeping to the required standard of conduct. Rules of the profession, verily, are written for lawyers, unlike ghost stories, which are, certainly, not written for ghosts. Adhere to the rifles, and make a mark in the profession, by putting a stamp of great name on everything you do and achieve, so that your name will score fame, as Homer achieved fame by authoring the Iliad. And remember what Aldous Huxley said : "The author of the Ilaid is either Homer or, if not Homer, somebody else of the same name." So retain your sure name.

An Advocate has a duty to execute the business entrusted to him with a reasonable degree of care, skill and dispatch. An Advocate devotes himself to the interests of another at the peril of himself. Vicarious action tempts a man too far from himself. An Advocate should do for others what he is not willing to do for himself. His loyalty is to his client. He has no other master.

Another important command of the profession is that an Advocate shall not advertise himself. Rule 36 in Chapter II of the Bar Council of India Rules lays down that an Advocate shall not solicit work or advertise either directly or indirectly, whether by circulars, advertisements, touts or personal communications. A Full Bench of the Allahabad High Court, comprising Sulaiman, C.J., Thorn and Harris JJ. in In re, (Thirteen) Advocates, Allahabad (reported in AIR 1934 Allahabad 1067), has observed :

"It is a well recognised Rule of etiquette in the legal profession that no attempt should be made to advertise oneself directly or indirectly. Such a course of action tends to lower the dignity of the honourable profession and is undoubtedly akin to touting ............ Advertisements of all forms are considered to be highly improper."

Yet another important aspect is that an advocate should be very careful with his client's money in his hands. He should never feel rich with his client's money. A man's treatment of money is the most decisive test of his character. Put not your trust in money but put your money in trust. It is good to have money and the things that money can buy, but it is good, too, to check up once in a while and make sure that you haven't lost the things that money cannot buy. You cannot hire your client's money. You should never be a money-grubber. Money, certainly, is fortune; but, definitely brings misfortune. I am telling you what you should know, not only what you should hear.

I should advise you to make a fixed deposit of honesty in the profession. Your effort, should be to set up shop at the summit of the profession.

At the end of the day, I should think that the legal profession in a great, glorious, noble profession. And, if there is a rebirth for me, and if I am asked what type of birth I would like to take next, by answer would be; T wish to be reborn a lawyer only.'

I wish to be a lawyer, and little else besides. This should be the motto of a true lawyer.

I should be grateful to the tenacious tolerance of the listening throng.

Thank you, and wish you well, and a formidable future. I also thank the Bar Council of Kerala, the provider of this splendid and glorious opportunity.

Thank you all.

___________________________________________________________________

Footnote:

(Key-note Address delivered by T.P. Kelu Nambiar, as Chief Guest on the occasion of the enrolment of Advocates, on 28-12-1998, at the Bar Council of Kerala Hall).

Section 127 (3) Cr. P.C, 1973; The Muslim Women (Protection of Rights on Divorce) Act, 1986; and the Muslim Woman's Right to Mataa

(By Lucy Carroll) *

In 1879, the Calcutta High Court observed, in dealing with a case arising under the maintenance provisions of the Presidency Magistrates Act (a predecessor of the provisions later embodied in S.488 of the Criminal Procedure Code, 1898):

The fact that the power of divorce, given by the Mahomedan law, may be so exercised as to defeat the intention of the Legislature as expressed in S.234 Act 4 of 1877 (i.e., Presidency Magistrates Act), and other similar enactment, may go to show that further legislation is required, but it cannot affect the law as it stands.[1]

It was not until nearly a century later that Parliament acted and to the new Code of Criminal Procedure, 1973, was added a provision extending the jurisdiction of the magistrate to issue maintenance orders to include orders in favour of a divorced woman against her former husband[2] Almost immediately, however, the benefit apparently conferred by this section was placed in doubt by the subsequent amendment of S.127 of the Code.

During the course of the Parliamentary debates over the Government sponsored amendment of S.127 in December 1973, Jyotirmoy Bosu spoke in opposition on behalf of "millions of women, specially Muslim women," and cited petitions received from Muslim women and women’s organisations. In defense of the provisions of S.125, which as they applied to divorced Muslim women appeared to be negated by the amendment proposed to S.127, Bosu invoked Sura II, Verse 241 of the Quran:- "For divorced women maintenance should be provided on a reasonable scale". The new S.125, with the expanded definition of the term "wife", he suggested, did no more than to give to Muslim women "the benefit of this clear mandate of the Holy Quran."

Pressed by Bosu to reply to his objections to the proposed amendment of S.127, the Minister responded by stating that if Bosu's propositions held good, "this provision (i.e., S.127(3)(b) may not come into operation (to negate the rights of divorced Muslim women under S. 125)."

A short and powerful, and in a sense prophetic, 1977 article by T.M. Abdullah, in Kerala Law Times, appears to pick up the debate from the point where it was left by the Lok Sabha exchange between Jyotirmoy Bosu and the Government Minister.[3]In order to apply S. 127(3)(b) to the case of a Muslim divorcee, Abdullah asserted with calm logic, it is necessary to ascertain exactly what constituted the "sum .... under ..personal law.... payable on... divorce" by a Muslim husband to his former wife. The phrase used in S. 127 (3)(b) cannot, he asserted, refer to mahr, since mahr is payable on marriage; it is only to suit the convenience of the parties that it is often arranged that payment of a portion of the mahr shall be deferred until some later date or until dissolution of the marriage.

Similarly, the terms of S. 127(3)(b) cannot include maintenance for the period of iddah, the liability for which does not arise by reason of divorce. The obligation to maintain the wife during iddah is an extension of the husband's obligation to maintain his wife during the marriage.

Iddah does not necessarily fall to be observed after the divorce; when iddah precedes the actual dissolution of the marriage, the spouses continue as husband and wife throughout the iddah period and maintenance is incumbent upon the husband because of the subsistence of the marriage.

When iddah does follow the divorce, the divorced wife is prohibited from remarrying, not because of the divorce but because of the (now dissolved) marriage and the interests of the (former) husband in ascertaining whether the woman may be pregnant by him.

The divorced woman's inability to remarry during the post-divorce iddah derives from the marriage; the ex-husband's obligation to maintain her during this period likewise is an extension of his obligation to maintain her during coverture. If the woman is pregnant, iddah will extend until she is delivered; the former husband's obligation to maintain continues throughout the pregnancy, not because of the divorce but because of the father's liability for the maintenance of his child.

So, the mahr and the iddah maintenance are out of account for relief under S. 127 Cr. P.C. What remains is the command for making a reasonable or honourable provision for the divorced wife contained in Chapter 2 Verse 241 of the Holy Quran.

The reasonable or honourable provision for the divorced wife may take the form of a lump sum allowance or [be paid] by instalments.[4]

Following Abdullah's line of argument, and as the Minister had remarked in the course of exchange with Jyotirmoy Bosu, if the relevant reference is Quaran, II: 241, the terms of S. 123(3)(b) "may not come into operation" to negate the rights conferred upon a Muslim divorcee by S. 125. The husband could only avoid liability for a maintenance order under S. 125 by voluntarily making "reasonable or honourable provision" for his divorced wife by means of a lump sum payment or an arrangement for payment of regular alimony, in addition to payment of any outstanding mahr owed the woman and maintenance for the iddah period.

The interval of nearly two decades since Abdullah's 1977 Article in Kerala Law Times has witnessed the Bai Tahira[5] and Fuzlunbi[6] cases of 1979 and 1980; the 1985 Shah Bono[7] case and the accompanying controversies; the controversial Muslim Women (Protection of Rights on Divorce) Act, 1986; and the failure of the Indian Supreme Court to find occasion to deal with the half dozen or so Writ Petitions filed more than a decade ago and challenging the constitutionality of the Muslim Women Act.

The interval since 1977 has also recently witnessed a remarkable 1995 judgment from the Dhaka High Court which is immediately relevant to the Indian situation.

Hefzur Rahman v. Shamsun Nahar Begum, 47 DLR (1995) 54

The parties were married in March 1985; a son was born in December 1987; and the husband divorced the wife in August 1988. In November 1988 the divorced woman filed suit in the Family Court for her mahr and for maintenance for herself and her infant son at the rate of Taka 1,000 per month each.

The Family Court decreed the suit and, in addition to the amount due as mahr, ordered the defendant (ex-husband/father) to pay Taka 3,000 for iddah maintenance to the plaintiff (Taka 1,000 per month for three months) and Taka 1,000 per month for the maintenance of the child.

On the defendant's appeal, the District Judge reduced the rate of maintenance for each plaintiff to Taka 600 per month. The defendant took the matter to the High Court in an attempt to get the maintenance payments reduced further.

The High Court, firstly, reinstated the maintenance at the rate initially decreed by the Family Court.

We hold that each of the opposite parties is entitled to get from the petitioner an amount of Taka 1,000 per month as maintenance commensurate with the status and means of the petitioner. We further hold that the learned District Judge acted illegally in reducing the amount abruptly without assigning any reason whatsoever.

Then, the Division Bench took up, suo motu, the question of the duration of the maintenance decreed in favour of the divorced woman, which both lower Courts had limited to the 3 months iddah. Quoting the verse which appears no less than four times in sura 54 of the Quaran (ayats 17,23,32 and 40) - "And we have made the Quran easy to understand and remember; then is there any that will receive admonition?" - the Court rejected taqlid and endorsed the principle of ijtihad.

This literal study of the Quran is discouraged by a section of Muslims. They insist that the readers should follow any of the interpretations given by the recognised early scholars. They go further by saying that the door of interpreting Quran is now closed.

Art. 8(1A) of the Constitution of Bangladesh contained in Part III under the hearing "Fundamental Principles of State Policy" states that absolute trust and faith in the Almighty Allah shall be the basis of all actions. It indicates that Quranic injunctions shall have to be followed strictly and without any deviation.

Quaran urges: "Those to whom we have sent the Book study it as it should be studied: they are the ones that believe therein" (Second Sura Baqara, verse 121). This verse directs continuous study of the Quran which is in conformity with the dynamic, progressive and universal character of Islam.

We, thus, come to the conclusion that a Civil Court has the jurisdiction to follow the law as' in the Quaran disregarding any other law on the subject (eg. in the commentaries compiled by jurists), if contrary thereto even though laid down by the earliest jurists or commentators may be of great antiquity and high authority and though followed for a considerable period.[8]. For it is an article of faith of a Muslim that he should follow without questioning what has been revealed in Quran and disobedience thereof is a sin.

Applying these principles to Quran II: 241 and analysing the import of the Arabic text, the Division Bench concluded :

So, we find that a woman who is divorced is entitled to household stuff, utensils, goods, chattels, provisions, convenience which is known, recognised, honourable, good, befitting, a kindness. Abdullah Yusuf Ali is, therefore, correct in translating the expression "mataaoon bill maaroof" as "maintenance should be provided on a reasonable scale"....

Considering all the aspects we finally hold that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddah for an indefinite period, that is to say, till she loses the status of a divorce by remarrying another person.

The petitioner was ordered to pay the maintenance as originally set by the Family Court (Taka 1,000 each per month) to his former wife until she remarried and to his son until he attained majority.

Concluding remarks

The Muslim Women (Protection of Rights on Divorce) Act is very curiously and ambiguously drafted. The important section is S. 3, which declares that the divorced woman is entitled to obtain from her former husband "maintenance", "provision" and mahr, and to recover from his possession her wedding presents and dowry (jahez); and authorizes the Magistrate to order payment and/or restoration of these sums or properties. The crucial provision is found in S. 3(1)(a), which states that the divorced woman "shall be entitled to"

a reasonable and fair provision and maintenance to be made and paid to her within the iddah period by her former husband.

The wording appears to imply that the husband has two separate and distinct obligations: (i) to make a "reasonable and fair provision" for his divorced wife; and (ii) to provide "maintenance" for her. The emphasis of this section is not on the nature or duration of any such "provision" or "maintenance" but on the time by which an arrangement for payment of "provision" and "maintenance" should be concluded, i.e., "within the iddah period."

On this reading, the Act only excuses from liability for post-iddah maintenance a man who has already discharged his obligations of both "reasonable and fair provision" and "maintenance" by paying these amounts in a lump sum to his wife, in addition to having paid his wife's mahr and restored her dowry, etc. as per Ss. 3(1)(c) and 3(1)(d). The whole point of Shah Bono was precisely that the husband had not made "a reasonable and fair provision" for his divorced wife, even if he had paid the amount agreed as mahr half a century earlier and provided iddah maintenance; he was therefore, ordered to pay a specified sum monthly to her under S. 125 of the Criminal Procedure Code.

The interveners on behalf of the husband in Shah Bano could not refute the words of the Quran, II: 241;9 all they could do was to contend that Yusuf Ali's translation of "mataa" as "maintenance" was incorrect and to point out that other translations employed the word "provision". This the Supreme Court termed "a distinction without a difference" - as indeed it was on the facts of the case before it: whether mataa was rendered "maintenance" or "provision", there was no pretense that the husband in Shah Bano had provided anything at all by way of mataa to his divorced wife.

As Abdullah pointed out in his 1977 article,[10] there is no reason why the "reasonable and fair provision" (mataa) enjoined by Quran II:241 could not take the form of the regular payment of alimony to the divorced woman. Rather than reserving the Shah Bano decision, it could be argued that the Muslim Women (Protection of Rights on Divorce) Act enlarged and codified it - truly preserving and protecting the rights of the divorced Muslim woman!

Footnotes:

*Fellow, National Humanities Center, Research Triangle park, North Carolina.

1Abdur Rohoman v. Sakhina, 918790 ILR 5 Calcutta 558, at P. 562.

2Section 125, Cr. P.C, 1973; explanation.

3.T.M. Abdulla, "MuslimHusband'sLiabilityunder Ss. 125 & 127.Cr.P.C." 1977 Kerala LT (Journal) 18. Actually, the author is continuing the discussion commenced by another South Indian Muslim lawyer in a previous note in the same Journal. See also : O.V. Abdulkhader, "Supreme Court Decisions on Maintenance to Muslim Divorcees," AIR 1982 Journal 115.

4.I have expanded a little on Abdullah's arguments in the summary above, but I want to call attention to his article because - short, clear, and directly to the point - it was written long before the Shah Bano and Muslim Woman Act controversies.

*BaiTahira v. Ali Hussain Fissalli Chothia, AIR 1979 Supreme Court 362; Krishnalyer, Tulzapurkar, & Patliak, JJ.

6. Fuzlumbi v. K. Khader Vali, AIR 1980 Supreme Court 1730; Krishna Iyer, Chinnappa Reddy, & A.P. Sen, JJ.

7. Mohammed Ahmed Khan v. Shah Banoo Begum, AIR Supreme Court 945; Chandrachud, CJ; Desai, Chinnappa Reddy, Venkataramiah, & Ranganath Misra, JJ.

8.Reference is to the statement of the Privy Council (Aga Mahomed Jaffer Bindanim v.Koolsoom Beebee, ILR 25 Cal. 9): "Their Lordships.....do not care to speculate on the mode in which the text quoted from the Koran, which is to be found in Sura II, verse 241-2 (sic; read "240"], is to be reconciled with the law as laid down in die Hedaya and by the author of the passage quoted from Baillie's Imamia. But it would be wrong for the Court on a point of this kind to attempt to put their own construction on the Koran in opposition to the express ruling of commentators of such great antiquity and high authority."

9. The All India Muslim Personal Law Board, the Jamaat-ul-Ulemam, and the Jaamat-i-Islam had sought and been granted the right of addressing the Supreme Court in the course of the Shah Bano hearing.

10. 1977 Kerala L T (Journal) 18.

Issac Ninan's Case

(P. C. Chacko, Senior Advocate, Ernakulam)

Issac Ninan's case reported in 1995 (2) KLT 848 was the subject matter of an article published in 1996 (1) KLT (Journal) 3.

The learned author, if I may say so with respect, has not viewed the question from the correct perspective.

In order to allay the doubts and misgivings expressed, in the article, these few lines.

The criticism of the judgment by the learned author is mainly on two grounds:

(1) The judgment ignored the possible socio-economic consequences of an abrupt explosion of the impugned provisions from the Rent Control Statutes in force in the State.

(2) The judgment did not consider the impact of the Supreme Court judgment reported in AIR 1988 S.C. 485 which found no unreasonableness in S.4 of the East Punjab Urban Restriction Act 1949 fixing fair rent as rent prevalent for similar houses in 1938.

On the first point what is stated by the author is that even though method of determination of the fair rent is unfair and unreasonable it would not have been taken as a ground to negate the very concept of fair rent. The concept of fair rent, according to the author is different and distinct from the mode of computation. The effect of the judgment, the author continues, is that the landlord would be more equipped to enhance the rent on their-own actions and desires as many times as possible without being controlled by any law or law courts. In the said circumstances instead of a total cancellation of the provisions, according to the author, what was required was a scientific modification in the method of determination of fair rent without opposing die socio-logical jurisprudence involved therein.

The decision in question dealt with the constitutional validity of Sections 5, 6 and 8 of the Kerala Buildings (Lease and Rent Control) Act, 1965. Section 5 deals with determination of fair rent, the basis being property tax fixation by the local authority considering time of letting as basic year and ceiling on fair rent limited as per Section 5(2) viz. not more than 15% the monthly rent on the basis of which the property tax or house tax for the building prevailing two years immediately before the date of the application was fixed by the local authority. Section 6 imposes a ban against further increase of rent from what has been fixed by the court as fair rent except in one contingency where some additions or improvements or alternations, are made by the landloard to the building. Section 8 imposes a restriction on the landlord from claiming or receiving, or even stipulating for payment of rent in excess of the lair rent.

The Division Bench found that the combined operation of Sections 5, 6 and 8 of the Act is a gross invasion on the right of a landlord to carry on business. According to the Division Bench Section 6 of the Act is an unreasonable restriction on the right to livelihood envisaged in Art.21 of the Constitution, and an unreasonable restriction on the right to carry on business envisaged in Article 19(1)(g) of I he Constitution. In conclusion what is found is that Section 5 cannot stand alone without subsidiary and incidental provisions for periodical revision of the fair rent. The legislative scheme provided through Sections 5, 6 and 8 is package and are mutually dependent and interlinked. One provision therefrom cannot be separated from the others. It was in this view of the matter that the Sections 5, 6 and 8 of the Act put together was found by the Hon'ble High Court to be ultra vires the Constitution of India. The Division Bench also found that the provisions do not stand the test of reasonableness.

The possible socio-economic consequences of the abrupt expulsion is sufficient reason according to the author of the article for the Court to fold its hand even when the provision of law challenged is found to be unconstitutional and void. This statement of law apart from being incorrect, is also against the mandate of Article 13 of the Constitution. Article 13 of the constitution reads:-

"13. Laws inconsistent with or in derogation of the fundamental rights -

(1) All laws in force in the territory of India immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this Part, shall to the extent of such inconsistency, be void.

(2) The Slate shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of tins clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires - (a) "Law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) "Law in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of tins Constitution made under Article 368."

The object of Article 13 is to secure the paramountancy of the Constitution in regard to fundamental rights. The first clause relates to the laws already existing in force and declares that pre-constitution laws are void to the extent to which they are inconsistent with the fundamental rights. The second clause relates to post-constitution-laws and prohibits the State from making a law which either takes away totally or abrogates in part, a fundamental right. This clause further states that the enacted law to the extent of the inconsistency will be void. The object of the definition in Article 13 is to ensure that instruments emanating from any source of law-permanent or temporary, legislative or judgment or any other source, will pay homage to the constitutional provision relating to fundamental rights. At the same time clause (4) seeks to ensure that a constitutional amendment does not fall within the definition of law in Art.13 and its validity cannot be challenged on the ground that it violates a. fundamental right. It is the duty of the High Court, exercising jurisdiction under Art.226 and of the Supreme Court under Art.32 of the Constitution to declare the law as unconstitutional and void, if it, is found to be against fundamental rights. In case of such declaration it is the duty of the Government and the Legislature of the State, to step in to rectify anomaly if any, created by the courts declaration of the law. In all cases of anomalies consequent on Court declaration of a provision of law, as unconstitutional and void, the Government and the Legislature of the State had stepped in and that is the practice, in all these years, since the advent of the Constitution in 1950. The Court herein interfered with the present fair rent determination method, since the same is an inroad into certain of the fundamental rights of the citizen. It is not the function of the court to formulate and propound better and more scientific fair rent determination methods, while declaring a provision of law as void and unconstitutional. That is the function of the Government and the Legislature of the State.

That rent control legislation needs no change is nobody's case. Many features of Rent Control Laws in existence in various States have outlived their utility. The task therefore was of unifying, consolidating and amending the Rent Control Laws in the States and to bring them in tune with the changed circumstances. Recognising the negative impact and tension created by the Rent Control Acts in existing in several States in India, various Commissions have been set up at the Centre, Economic Administration Reforms Commission in 1980 and a National Commission on Urbanisation in 1985. Both these bodies recommended reform of the rent legislation in a way balancing the interests of both the landlord and the tenants and also stimulate future construction. The National Housing policy of Government of India envisages amendment of the State Rent Control laws for bringing uniformity of application throughout the country.

On the basis of series of consultations with State Governments and various experts, the Ministry of Urban Development had prepared a paper suggesting the basic features of the Model Rent Control Law. The policy paper was considered in the Chief Minister's Conference held in 7-3-92 in New Delhi, where the broad frame work of the Model Rent Control legislation was endorsed. In accordance with the decision thus taken, Central Government, formulated a Model Rent Law incorporating the views outlined in the policy paper endorsed in the Chief Minister's conference aforementioned. The Model Rent Control Law was in fact tabled before both the houses of the Parliament.

It is on the basis of the model Rent Control Law that Delhi Rent Control Act was enacted in 1995. States like Tamil Nadu, Madhya Pradesh and Maharashtra, have also carried out certain amendments in their Acts. Since Rent Control is a State subject the state Government and the State Legislature have the exclusive jurisdiction to legislate on the subject. By bringing forth Model Rent Control Law, the Centre is advising the State Governments to undertake enactment of amendments to existing Rent Control Laws or to enact new laws on the basis of the Model Law. The essential features of the Model Law in regard to determination of fair standard rent and its revision is as stated below.

B. Standard Rent

6.2. Substitution of multiple formula for fixing standard Rent (SR) by a simple formula, which will provide fair rate of return on the investment in the house.

a) Standard Rent (SR) to be fixed on the basis of 10% return on the cost of construction and market price of land at the commencement of construction. The rate of return can be varied by legislation. The Standard Rent so derived could be increased by a certain percentage from the year of construction to the present year to arrive at Standard Rent for given year.

To this Standard Rent are to be added charges on account of maintenance, taxes payable and amenities. The maintenance charge may be ten percent of the Standard Rent, that for taxes as per actual tax payable pro-rata and the charge for amenities as agreed between the landlord and the tenant subject to a maximum in relation to the rent paid. These charges are over and above the Standard Rent and do not constitute a part of it.

b) The new Standard Rent is to become applicable from the day the Act becomes effective. The permitted increases in Standard Rent would also be effective from the day the amendment permitting the increase in rent comes into effect.

c) The Standard Rent may be received every three years on the basis of criteria notified by the State Governments. Meanwhile, the Standard Rent to increase by a given percentage every year to be prescribed by each State according to rate of inflation, subject to adjustment at the end of three years according to CPI, The increase in Standard Rent will be automatic. Reference to the Rent Controller will be made only in case of disputes on the base rent.

The rate of increase could vary from city to city and can be higher for larger urban areas. Thus in cities like Delhi, Bombay etc. Standard Rent could increase by eight per cent every year, whereas for smaller urban areas, this figure could be five per cent or as the State Govt. may decide. The percentage of increase in Standard Rent may be higher in case of non-residential properties.

For must of the States in India, price increases over the past one to two decades have been in the range of 8%, 10%. This should determine the outer bound for prescribed increases in rent, since in smaller cities as well as in some parts of large cities, an increase of ten per cent may result in Standard Rent being higher than the market rent. Further the Rent Control Acts have also been used as anti-inflationary measures and rent increases equivalent to price increases may full the inflationary pressures. Under the current macro-economic scenario when the CP1 has crossed 14 per cent mark, linking rents with CP1 will lead to sharp increases in rents.

Extrapolating the current rents at 8 percent per annum, a rent of Rs.1500/- for a, two bed-room flat in a middle class colony in Delhi in 1991 will increase to Rs.2204/ by the year 1995' and will approximate Rs.3500/- by 2001.

d) The increases in Standard Rent for premises in non-residential uses may be at a higher rate.

(e) The new Standard Rent will be applicable to all old and new tenancies. The rent of the old tenancies with less than the specified rent is to be brought at par with the prescribed Standard Rent gradually over a period of five years in order not to impose a sudden financial burden on tenants. The State Government may decide to have a longer adjustment period and/or a lower rate of growth of rents of older tenancies to further lighten the burden on tenants. The level of neutralisation of rent may relate to the age of premises and lower rates of increases be used/adopted for earlier period. Further, the of neutralisation could range from 25 per cent for residential premises with less than 25 squares meters area to 100 percent for plinth area over 80 sq, metres and for non-residential premises.

f) Standard Rent is to be increased if landlord invests subsequently in the premises and the investment has been made in agreement with the tenant/s and it leads to significant improvement in the flow of services or amenities to the tenant/s. The increase in Standard Rent will be only in relation to expenditure incurred on construction by the landlord. The land price taken for calculation of the rent will continue to be the price prevailing at the time of initial construction and indexed upto the year of reconstruction.

g) Reduction in flow of services due to reduction in accommodation space or poor maintenance or deterioration in services will result in lowering of Standard Rent and the tenant can apply to Rent Collector for refixation of rent. The important principle is that while the tenant will enjoy security of tenure in controlled premises, he should agree to pay a rent that provides adequate return on investment and provides for proper maintenance and taxes, so that he does not enjoy an unfair advantage over the landlord. If at all the tenant is to be subsidized, it should be done by the State and not the landlord.

Standard Rent and Revenue Base of the Local Authority:

The revision of Standard Rent will strengthen the property tax base and augment the financial resource base of the local authorities for who property tax is a major source of revenue.

The above is a ample 'illustration for the non-continuance of the derogatory provisions in the Rent Control Statutes, in force in this State.

On the second point the author of the Article is not correct in thinking that the judgment reported in 1988 S.C. 485 is decisive as regards the issue in question.

He is also not correct in thinking that as and when fair rent fixation application comes up for determination the temptation will be to look in obedience to the said Supreme Court Judgment. On the contrary the said Supreme Court Judgment is no answer to the problem considered by the Division Bench in Issac Ninan 's case,

The Supreme Court opens the said judgment by stating as follows :

"It must, however, be mentioned that the petition is lacking in particulars as to what premises the appellant owned and in respect of which premises the appellant is making the grievances. On tin's ground it is not possible to decide the question of vires canvassed before the High Court and repeated before us. A petition challenging the constitutional validity of certain provisions must be in the context of certain facts and not in abstract or vaccum. The essential facts necessary to examine the validity of the Act are lacking in this appeal. On this ground the petition was rightly rejected and we are not inclined to interfere with the order of the High Court on this ground alone." Section 4 of the East Punjab Urban Restriction Act 1949 was the provision under challenge before the Supreme Court. The said Section is quoted in extenso in the said judgment. On the materials available on record, the Supreme Court dealt with the matter as follows :

"Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory or different. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The source of authority for the two statutes being different. Art.14 can have no application."

"It must be the function of the legislature of each State to follow the methods considered to be suited for that State that would be no ground for judging the arbitrariness or unreasonableness of a particular legislation in question by comparison. What may be the problem in Madras may not be the problem in Punjabi It must however, be borne in mind that the Act in question was passed in 1949 and it pegged the rent prevalent in the similar Houses in 1938 and as such is not unreasonable per se. The rises stated tremendously after the end of the Second World War after the partition of the country. In that view of the matter, we cannot say that per se, there is unreasonableness in fixing the prices in 1938 level. Having regard to the specific preamble of the Act we find nothing unreasonable in the Scheme contemplated under Section 4 of the present Act." (from page 488 of the report).

It may be mentioned here that as per S.4 of the East Punjab Urban Rent Restriction Act permissible increase i.e., increase from 8 1/2% upto 100% on the basic rent depending on nature of tenancy is permitted unlike in the case of the Kerala statute, and this circumstance was also taken into account by the Supreme Court for finding Section 4 not unreasonable.

The Division Bench of the Kerala High Court held Sections 5,6 and 8 invalid not solely on the basis of the arbitrariness of these provisions but on the basis of Article 19(1)(g) and 21 of the Constitution. In the Supreme Court judgment, validity of Section 4 East Punjab Rent Restriction Act was considered only on the ground of arbitrariness. Relevant materials and necessary statistics essential to substantiate the infringement as per these Articles of the Constitution were available to the Division Bench unlike in the case of the Supreme Court matter. It is on the basis of those facts and circumstances the Kerala High Court Division Bench decided the case. The Division Bench found that living on rental income is business. Right to live being a fundamental right, to deprive a person of his livelihood by restrictions imposed by Section 5,6, 8 of the Kerala Rent Control Act is found unconstitutional and void under Articles 14, 19(1)(g) and 21 of the Constitution.

Section 34 of C.P.C. - To be Amended

(By P.S. Vasavan Pillai, Advocate, Trivandrum)

If Section 34 of the Code of Civil Procedure 1908 is amended suitably, pendency of cases in the Execution Courts can be brought down substantially.

Out of the pendency in the Execution Courts, a good percentage belongs to 'money suits'. Number of money suits in the Execution Courts swells up because of the low rate of interest stipulated in the above section.

At present as per the above Section 34, interest at the rate of a maxi mum of 6% per annum on the principal sum alone is needed to be paid by a judgment-debtor after the decree is pronounced. Many debtors make undue advantage of this provision. They can afford to delay the payment of the decree amount to any extent. If delayed, it will be only to their advantage. The decree amount they can lend to needly persons and can realise from them interest at any rate. In turn they need pay only 6% or less to their creditor (decree holder). They need pay the low rate of interest on the principal sum alone while they can get high interest for the whole of decree amount which will be invariably bigger than the principal sum.

If the debtors (Judgment-debtors) have to pay a high or reasonable rate of interest On the decree amount, they will try to clear the liability at the earliest.

Therefore it is desirable that the Parliament raises the rate of post decree interest in money suits to a reasonable percentage. Interest must be made payable for the whole of the decree amount and not for the principal amount alone.