Comments on Kerala Buildings (Lease & Rent Control) Act, 1965

(By P. Bhaskaran, Advocate, Guruvayoor)

The Kerala Buildings (Lease & Rent Control) Act 1965 (hereinafter called the said Act) is a beneficial piece of legislation. The said Act is intended to protect the tenants against unreasonable eviction by landlords. The said Act also gives reasonable protection to landlords for getting fair rent and to get back possession of the tenanted premises on the grounds as contained in the said Act.

As the name of the said Act indicates, the same is applicable to the whole of the State of Kerala. Today the State of Kerala consists of several villages. Panchayats, Townships, Municipalities and Corporations etc., and whereas when the said Act was enacted there were mainly villages, Panchayats and few Municipalities, and only two Corporations namely, Trivandrum and Calicut. Many Panchayats, Municipalities and Corporations emerged thereafter basing on increase in population. On account of increased demands for housing in all the areas and changed habits of living occasioned on account of environmental changes, old houses vanished replacing with multistoreyed buildings/high rises. .

Economic conditions of tenants have also undergone changes thereby increasing the capacity of the tenants to pay higher rents basing on the comforts he gets from the tenanted premise/accommodation provided to him by the landlords in multistoreyed buildings/high rises.

When the said Act was enacted by the Legislature in the year 1965, the provisions contained therein were meant to protect the poor tenants. Today the concept of multistoreyed buildings have replaced the old and outdated houses. People from different parts of the State move from villages to towns, besides people from other States and even from overseas countries come and settle in different towns and cities in the State and look for comfortable accommodation according to their pockets. Accordingly it has become necessary to amend the said Act to suit the present day requirements.

The provisions as contained in the said Act is being followed by the Rent Control Courts, Appellate Courts etc. supported and supplemented by the decisions of the High Court and Supreme Court. Admittedly the said Act was enacted about 40 years back. By efflux of time, lot of changes have taken place, warranting amendment or repealing and re-enacting the said Act as was done in other States to compact with the present day needs, but it is pertinent to note that the said Act and the provisions made there under remains the same supplemented by decisions of the High Court and Supreme Court.

It is also pertinent to note that the Courts have its own limitations in interpreting and applying the provisions of the said Act.

As has been observed by the Hon'ble Supreme Court of India ((1987) 4 SCC 1) that "there is no presumption in all cases the tenants are weaker section. By elapse of time the tenants (atleast many of them) doing business in Commercial Buildings taken on rent are far more affluent financially than the owners of the buildings. Though the rent control legislation is stated to be a beneficial one, it must be reasonably just and fair".

The National Housing Policy approved by the Central Government recommended that appropriate amendments in existing laws and regulations be carriedout for creating an enabling atmosphere for housing activities in the Country. A number of expert bodies such as, the Economic Reforms Administration Committee and the National Commission on Urbanisation had recommended reforming the rent legislation in a way that balance the interests of both the landlords and tenants and also that stipulates future construction to meet the growing demands for housing.

On the basis of the various recommendations of the experts and also after a series of consultations with the State Governments, the Ministry of Urban Development, Government of India had prepared a Model Rent Control Legislation and had sent to the States for consideration.

Accordingly, it is necessary particularly in view of the changed circumstances as stated herein above, the said Act needs either amendment or repealing and re-enactment with the object of regulating further the incidence of tenancies and relationship between landlords and tenants.

In S.11 of the said Act dealing with eviction of tenants, provision has been made for issue of notice by the landlord to the tenant in respect of default in payment of rent (See S.11(2)(b)) and for transfer of tenancy or sub-letting the tenanted premises or part thereof to any person without written consent from landlord (see S.11(4)(i)). Several sub-sections under S.11 of the said Act provides other grounds under which the landlord can get the tenant evicted. The said section or any other sections contained in the said Act makes any provision for notice of eviction or a notice of suit determining the tenancy and relinquishing the relationship between the landlord and tenant before filing a petition for eviction of the tenant under any of those grounds. In all fairness, eviction proceedings under any of the grounds ought to be commended following a notice to quit by the landlord to the tenant. As there is no provisions in the said Act for issue of any notice (either mandatory or otherwise) by the landlord to tenant, except under the grounds stated hereinabove, expressing intention of the landlord to evict the tenant and the grounds thereof, the tenant has no opportunity to know the grounds or the case the landlord is going to allege against him, until he is served with a summons along with the copy of the eviction petition from the Rent Control Court.

On the basis of the model rent control legislation many of the States have either amended the existing Act or repealed and re-enacted the Rent Control Act, incorporating the suggestions as contained in the model rent control legislation, which inter alia contains (1) provision for notice before commencement of any proceedings for eviction of the tenant by landlord (2) fixation of fair rent (3) periodical enhancement of the rent and (4) payment of service and maintenance charges etc.

In all fairness, an eviction proceedings under any grounds should follow by a notice to the tenant by the landlord, expressing his intention to evict the tenant and the grounds thereof. The said Act being a beneficial piece of legislation, non-incorporation of the provisions in the said Act for issuance of notice to quit and the grounds thereof prior to commencement of eviction proceedings, is as such amounts to denying the right of the tenant to know the grounds of his eviction.

There are several decisions by the High Court and the Supreme Court relating to notice under S. 106 of Transfer of Property Act, some of which are stated below:

1) (1981) 3 SCC 127 lays down that notice under S.106 of Transfer of Property Act is not necessary, in case of self-contained Rent Act in States.

2) AIR 1976 SC 500 lays down that eviction de hors the grounds in State Rent Act. So notice under S.106 of Transfer of Property Act is necessary.

3) AIR 1979 SC 45 lays down that in view of parallel provisions in the State Act, the notice u/S. 106 of T. P. Act on the landlord has become redundant.

4) 1991 (2) KLT 862 Notice is not mandatory for eviction u/S.11(3) of the said Act.

5) 1997 (2) RCR 716 SC. In this Case landlord sent two notices. Eviction Petition was filed on the basis of the second notice. The Court held that the landlord ignored the first notice and the claim can be allowed.

6) 1994 (2) RCR 236 SC - Non-mentioning of the ground of the eviction in the notice disentitle the landlord's claim.

7) 1972 KLT 223 - It is not a jurisdictional condition to issue notice to quit the building by the tenant. So if the tenant feels that the notice issued to him is insufficient or no notice was issued, it should be raised before the Rent Control Court. It is not possible for the tenant to raise such issue for the first time before the High Court.

8) 1972 KLT 720 - Plea of want of notice contemplated u/S. 106 of T. R Act cannot be raised first time before the Revisional Authority.

9) 1972 KLT 720 - Notice of termination of lease is necessary in the case of the contractual tenancy.

The decisions of the Supreme Court and High Court are based on given facts of particular cases. So to make the Act more friendly between the landlords and tenants and to achieve the objects of the said Act, a notice determining the tenancy and intention of a suit being instituted i.e. filing of eviction petition against the tenant, in case of default of compliance of the requisition as contained in the said notice should be made mandatory.

As has been held in 1990 (1) KLT 104 the procedural provisions of Civil Procedure Code may be made applicable to Rent Control proceedings, in view of the C.P.C. Amendment Act 1999 (amended by C.P.C. Amendment Act of 2002), in the absence of any express provision to the contrary or in the absence of a conflict between the provisions of C.P.C. and the Rent Act and the Rules made thereunder.

The notice is a condition precedent for filing a suit, within the meaning of Order 6 Rule 6 of C.P. Code and should be implied in the pleadings as also in cause of action. For filing a petition under Rent Control Act, such notice should also contain the grounds of eviction and intention of suit.

A valuable right of the tenant to know the grounds of eviction and/or defaults committed by him, if any, which the landlord is going to allege in his eviction petition should be made known to the tenant, prior to commencement of eviction proceedings, otherwise such right is taken away by non-issuance of the notice of eviction.

In fact, if a notice is issued to the tenant by the landlord prior to commencement of eviction proceedings, the tenant gets an opportunity to comply with the demands as contained in the said notice, and upon receipt of the notice the tenant may even quit and vacate the tenanted premises and deliver back possession thereof to the landlord, which will avoid unnecessary litigation between the parties., and of course, such a notice is neither going to delay the proceedings nor takes away any right of the landlord.

Ss.5, 6 and 7 of the said Act deals with (1) determination of fair rent, and (2) enhancement in fair rent etc. Rent Control Courts have been given power to fix fair rent on the basis of property tax or house tax and if there is no property or house tax available for fixing fair rent, the Rent Control Court may consider prevailing tax in the locality for similar accommodation. So the ingredients for fixation of fair rent is only the rates and/or taxes. The said Sections further lays down that once the fair rent is fixed enhancement in rent can be effected only when increase in house tax or property tax as the case may take place or alterations/developments/ improvements etc. are carried out by the landlord to the tenanted property.

It is pertinent to note that where the old and existing rent being paid by the tenants is very low comparing with the present market conditions, no prudent landlord will invest further money for development of the tenanted premises. Obviously the landlords expect reasonable return on his investments and where there is no reasonable return on investments, not only landlords will develop his tenanted property, but others will also hesitate to invest in housing industry. This is the reason for many old houses remaining in the same condition they were lot out, for decades together.

Other States who have adopted Model Rent Legislation, in Cities/towns etc. where the concept of multi-storyed building have come up, the allottees/occupants are made to pay the services/maintenance charges for maintenance of the common areas and common parts provided in the building for common use and enjoyment, besides payment of rates and taxes in respect their units/apartments in proportion to the area occupied. In respect of single /double storyed buildings, where there are more rooms/flats/units etc, there also the tenants/occupants are made liable to pay service maintenance charges and municipal rates and charges proportionately. The aforesaid provisions for payment of service/maintenance charges and rates/taxes are clearly incorporated in the Rent Act as well as Municipal Act, so as to make the same binding on the parties.

The need for accommodation is increasing daily and to attract investment in building industry it is necessary that legal protection be there to the landlords for proper return on investment. The Fair Rent for a year may be fixed on the basis of investment on construction in a particular year in which the building is constructed, instead and in place of the existing system of determination of Fair Rent, because the construction cost varies from year to year and increase in property tax is very meagre and not enough to cover the increase in value of the property.

Fair Rent once fixed may by legislation be automatically enhanced at a fixed rate/percentage periodically, pay 5% after completion of every 5 years, making it obligatory on the part of the tenant to pay increased rent periodically. Provision may also be made in the Act for payment of service/maintenance charges by tenants and also make the landlord liable to maintain the rented houses in habitable condition. In this process, disputes between landlords and tenants will automatically be reduced and the relationship will also remain cordial and healthy.

In the changed circumstances, it is time for the Legislature to consider the following aspects to keep the said Act in parity with Model Rent Control Legislation to maintain cordial landlord-tenant relationships and also to attract investments in house building industry.

1) Whether S.11 of the said Act is to be amended in order that the tenant may know the grounds of his eviction, by a mandatory notice by the landlord to the tenant calling upon the tenant to vacate and hand over vacant possession on the expiry of notice period;

2) Whether Ss.5,6 and 7 of the said Act is to be amended specifying the method of fixation of fair rent;

3) To make provisions for payment of service/maintenance charges and rates/taxes by the tenants in proportion to the area occupied, fixing liability on the landlord for proper maintenance of the house.

4) Whether to repeal the said Act and bring out new legislation to compact with the changed circumstances instead of amending the said Act.

Last but not the least the rights and obligations of the landlords and tenants to be further streamlined so as to maintain harmonious relationships and to secure better returns on investments in Building Industry, which will ultimately reduce the burden on the Rent Control Courts.

Children -- The Neglected Lot?!

(By Sathyashree Priya E, Advocate, Ernakulam)

Currently, the law governing children is the Juvenile Justice ('Care and ProtectionAct), 20001 (Recently amended and brought into force on 1.4.2001). The rationale behind this Act is to treat children under the age of 18 with special care and protection so that even the child offendors are not brought to trial with ordinary criminals or sent to police stations or jails2 (even when such children are in conflict with law). Hence the Legislature in its wisdom has provided for establishment of 'shelter homes'(S.37) and 'special homes’(S.9) even for children who have committed an offence and thus are in 'confict with law'. It is further provided that such children are not even to be termed as 'offendors' but only as 'Children in conflict with law'(S.5(2)). Needless to say children, who are not in conflict with law but are 'neglected' have to be treated even better! They are not to be put together even with children in 'conflict with law' but have to be maintained and well looked after in 'Children's Homes'(S.34) specially created for this purpose.

According to the Juvenile Justice Act 'Children in conflict with law' have to be 'tried' only by a Juvenile Justice Board(S.4) comprising of a Judicial Magistrate of First Class who has special knowledge or training in child psychology or child welfare, two social workers of whom at least one is a women. The basic premise being that children are not to be treated like ordinary criminals and shall not be brought to trial in the regular Magistrate's Court. So also, 'custody' of neglected children have to be decided only by a Child Welfare Committee (S.29) consisting of a Chair Person and four other members of whom at least one shall be a woman and another an expert on matters concerning children. This committee shall have the final authority to dispose of cases for the care, protection, treatment, development and rehabilitation of the children as well as to provide for their basic needs and protection of human rights. One of the salient features of this Act worth mentioning is that any child in need of care and protection may be produced before the committee by the child himself, or through childline or by any social worker or public spirited citizen (S.32). Thus the child, though a 'minor', can present himself/herself before the committee and seek justice!! A child in need of care and protection would include a child who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise control over the child! (S.2(d)(iv)) Law provides that when a child who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts can seek relief under the Act by appearing before the Child Welfare Committee (S.2(d)(vi).

Though the Act was passed in the year 2000, it is a shame that even after a lapse of 5 years, till this date neither the Juvenile Justice Board nor the Child Welfare Committee has been constituted in the State of Kerala. The children are a neglected lot. Even presuming that such neglected children constitute 1% of the population of the State of Kerala there could be at least 2000 such neglected children in this State alone. This is only a presumption. Actual figures may even be higher. Fortunately or unfortunately children are not capable of asserting their rights by forming into groups. They are quite vulnerable!

Of what use is a letter of law if it is not followed in spirit!! Similarly the Act provides for establishment of 'Children's Homes' and Shelter Homes' for maintaining neglected children and ‘Special Homes', 'Special schools' for children in conflict with law'. The law goes one step further to provide for observation homes (S.8) to place the under trials (Children in conflict with law) so that proper treatment is meted out to them pursuant to their age. These laws have been passed based on the hypothesis that children are to be given a different treatment from that of hard core criminals and also to reform these young children at an early age in life.

More than two decades back Justice Subramanian Potti has chided this callous, indifferent and thick skinned attitude of the Government in neglecting children (1982 KLT 915). Of course the judgment referred to the provisions of the Children's Act which was then in force. Most of the provisions of this Act have been clubbed together with the Juvenile Justice Act, 1986 and a new Act Juvenile Justice Care and Protection Act, 2000 has been passed. S.60 of the Act specifically provides that

"The competent authority which makes an order for sending a juvenile or the child to a children's home or to special home of placing the juvenile under the care of a fit person or fit institution may make an order requiring the parent or other person liable to maintain the juvenile or the child to contribute to his maintenance, if able to do so, in the prescribed manner according to income".

This is based on the statutory liability that the primary responsibility of taking care of the infants is on that of the Parents. In fact R.72 of the repealed Children's Act went a step ahead and stated that 'If the parent or such other person fails to remit the amount in each month the defaulted amount shall be recoverable under the Revenue Recovery Act as if it is an arrear of revenue and the Court can order for the discharge. The absence of such a rule in the Juvenile Justice Care and Protection Act, 2000 imposes a heavier burden on the State! Several stringent provisions relating to parents found in the Children's Act (now repealed) are conspicuously absent in the Juvenile Justice Care and Protection Act, 2000. For example. Section 41 of the Children's Act prescribes that if a parent or any other person whomsoever, having the actual charge of, or control over a child, assaults, abandons, exposes or wilfully neglects the child or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such child unnecessary mental and physical suffering, shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both. The Juvenile Justice Act focuses more on the victims i.e. the children rather than dealing with the offendors!! Thus it is infact a soft law!

The State as 'Parens Patriae' has to step into the shoes of the parents if the parents fail in their primary responsibility because 'it is the principle that the State must take care of those who cannot take care of themselves, such as minors who lack proper care and custody from their parents. It is a duty, a secondary responsibility and not an imperfect obligation. However, State shall realise the maintenance costs from the parents proportionate to their income.

192 Countries have been parties to the Child Rights Convention3 (excepting the U.S.A. and Somalia). The United States of America, the so called developed nation, imposes capital punishments even on children under 18. Former Attorney General Shri Soli Sorabjee4 strongly condemns this attitude of the U.S. and welcomes the recent U.S. Supreme Court landmark judgment which has declared this practice as unconstitutional. As a result of the judgment death sentences imposed on 72 Juveniles for the Commission of murder are wiped out.

Let us resolve to act in a more civilized manner! Neglecting the needs of children results in regression than Progress! The Government concerned shall positively take steps to establish the Juvenile Justice Board and the Child Welfare Committee at least to show that it cares and is better civilized!!

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Foot Notes

1. An Act to consolidate and amend the law relating to juvenile in conflict with law and children in need of care and protection, by providing for proper care, protection and treatment by catering to their development needs, and by adopting a child-friendly approach in the adjudication and disposition of matters in the best interest of children and for their ultimate rehabilitation through various institutions established under enactment.

2. Formerly the Children's Act was in force which had special provisions for children. Pursuant to this Central Act all the States had framed their Acts and Rules in detail. This Children's Act has been repealed in 1986 when Juvenile Justice Act, 1986 came into force. This Act was further modified and now the Juvenile Justice (Care and Protection) Act, 2000 has been enacted.

3. The General Assembly of the UN has adopted the Convention on the Rights of the Child on the 20th November, 1989. The Government of India has ratified the convention on the 11th December, 1992.

4. In his ‘Soliloquies’ published in the Indian Express dated 13^th March, 2005. He further goes to say in this that “Critics argue that there is striking evidence that criminal gangs in America’s Cities are already employing 15,16,17 year old assassins to commit the gang’s murders in those States that don’t execute juveniles. What is overlooked by the critics is that although all 72 persons on death row for murders they had committed when they were 16 or 17 are spared their lives, they will instead receive the harshest punishment available, namely spending the rest of their lives in prison.

Felicitations to Hon'ble Chief Justice Mr. Justice Rajeev Gupta

With great pleasure, we extend our respectful and cordial felicitations to Hon'ble Chief Justice Mr. Justice Rajeev Gupta, on his appointment as Chief Justice of Kerala High Court.

Chief Justice Rajeev Gupta is a harmonious blend of genius, overflowing goodness and exceptional integrity. He is truly great, of deep erudition and mighty intellect, but with all, Simple as a child, loyal to the Bar, of considerable personal charm of manner inborn and not put on.

With a large store of learning, experience and forensic ability, your Lordship became one of the humble servitors of the temple of justice, where sit enshrined man's eternal quest andeverlasting hope about ten years ago. It could undoubtedly be stated of his Court as was said of Lord Cockburns's Court," a Court where every man felt himself in the presence of a gentleman, whose genial courtesy made all things genial, whose exquisite learning captured all men's love, whose sunbright Justice brightened every cause and sent even him who has lost away content. Your Lordship believed then as now that courtesy begets courtesy and that the high watermark of a gentleman is to extent courtesy to all around.

It is said that a Judge may pass through three stages of development in his career. When his is first appointed the Judge is very anxious that he should do justice in all the cases that come before him. In the second stage, he is quite sure that he is doing only justice and nothing but justice. In the third stage, he does not care whether he is doing justice or not. We are sure Mr. Justice Rajeev Gupta will throughout his tenure of office remain in the first stage itself doing justice without fear or favour, in fear of God and in fear of no man.

The fine qualities exhibited as a Judge, coupled with the long and varied experience will no doubt, stand your Lordship in good stead in the performance of the onerous task bestowed on you. Our very best wishes go to the new Chief Justice. May his new career as Chief Justice be crowned with success.

"Not forgetting those things which are behind

and reaching fourth unto these things

which are before,

He would press towards the mark........."

Senior Counsel Strutting Like a Peacock Whether

 a Model to be Emulated?

(N. Dharmadan, Sr. Counsel, High Court of Kerala)

A lawyer by virtue of his position, as an officer of the Court having public and professional responsibilities, belongs to the privileged class. He is not only rendering assistance to the Court in the administration of justice but also giving professional service and advice, for which he is entitled to be paid. Lawyers are agents not of the man that pays them; but are acting in administration of justice and they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility. He is in fact a "connecting link between the community and administration"'1. If he fails to act with reasonable care and caution, he is unfit to enjoy the privileges conferred upon him by law and serious breaches will be visited with punishment(AIR 1924 All.258).

S.16 of the Advocates Act creates two classes of advocates, namely, Senior advocate and other advocates like the English Bar, which is divided into two ranks (i) Queens Counsel, who are called leading counsels and (ii) Barristers, who are called Junior Counsels2. S.23 of the Act provides for a right of "pre-audience" for Senior Advocates among others. They are wearing what is described as the Queens Counsel, (QC) gown, short coat or jacket decorated with frills and fineries to make out a different class of advocate.

But the rules in Chapter IV under S.49(1)(gg) of the Act, do not provide for any difference in dress. Advocates other than lady advocate shall wear.

(a)  “A black buttoned up coat, chapkan, achkan, black sherwani and white bands with Advocates Gown, or

(b)  A black open breast coat, white collar stiff or soft, and white bands with Advocate Gowns. In either case long trousers (white, black striped or grey) or Dhoti".

So the Advocates Act and the rules only prescribe a common dress for all advocates, no different dress for a senior advocate than that for an advocate. But even before the Advocates Act came into force, the senior advocates have been following the long standing practice of wearing a gown and coat similar to that of a QC3.

Under the existing rules there is no justification for a Senior Advocate to wear a gown different from the normal gown worn by all others advocates. However, the wearing of a gown with its overflowing arms, back flap, embroidery and frills place the Senior Advocate in a distinct advantageous position because it creates an impression among the clients and general public that the Senior Advocates are superior and get better and favourable treatment from the Courts. In fact some Senior Advocates often capitalize this position for getting priority in hearing, postings, adjournments etc. Some are strutting like a Peacock.

Of course Senior Advocates constitute a "different class" within the advocates. Rules framed under S.16(3) and S.49(1)(g) of the Act impose certain restrictions in the matter of their practice of profession of law. The Supreme Court also in exercise of the powers conferred by Art.145 of the Constitution of India framed similar Rules known as Supreme Court Rules, 1966. Broadly speaking the restrictions are that a Senior Advocate shall not file a vakalath or act in any court or Tribunal in India, appear without an advocate on record, accept instructions to draw pleading or affidavit etc., accept directly from a client any brief or instruction etc.

They can enjoy a right of "pre-audience" as provided in S.23 of the Act. The right of "preaudience" in S.23 has been explained by Allahabad High Court as the right of advocates inter-se priority and "pre-audience" among them on the basis of seniority with special reference to Attorney General, Solicitor General, Advocate General, Senior Advocate, Other Advocates etc. This section does not create a bar on a junior advocate to conduct a case where circumstances warrant i.e., when no other advocate is present to conduct the case on behalf of the client. In fact this is a matter to be settled among advocate themselves and the Judge hearing the case normally exercises the discretion. It is the practice in the Chancery Division of the High Court to hear unlisted motions "according to the seniority of the counsel as at present irrespective of the seniority or juniority of the counsel" ((1980) 2 All.E.R.750). There are certain Rules in England governing the precedence or pre-audience of Barristers when appearing in Courts. These Rules are a matter of discretion of the Bench and the etiquette of the profession" ((1998) AC 247).

According to me the right to "pre-audience" has no great significance when compared with the duties and responsibilities of a Senior Counsel by virtue of the "pre-eminence" which he enjoys in the profession. A level headed reasonable senior counsel would never give importance to the right of his "pre-audience" in courts particularly when it is more akin to the prerogative of the Courts controlled by judicious discretion, etiquette and good manners.

A Senior Counsel carry greater responsibilities to the Court and duties to the client. "He should at all times pay deferential respect to the Judge and scrupulously observe the decorum of the Court room" and maintain strict fiduciary relations with his clients under all circumstances. He must act as a "model to the juniors" of the profession. Lord Denning M.R. in Rondel v. W ((1966) 3 All. E.R. 657) said "He (a senior counsel) has time and again to choose between his duty to the client and his duty to court. This is a conflict often difficult to resolve......He puts his first duty to the Court, he has nothing to fear. He must disregard the most specific instruction of his client, if the conflict with his duty to the Court. If he breaks it, he is offending against the rules of profession , and is subject to its discipline..........."

Lord Reid in Rondel v. Worsley ((1967) All. E.R. 993) stressed the duties of a Senior as follows:

"By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen's counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and the Judges of this Court".

xxx                                    xxx                                         xxx

As an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his persona interests".

Following the above decisions the Apex Court held in E.S. Reddi v. Chief Secretary. AP. (1987 (2) KLJ 17 (SC) (SN)) held:

"By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position skin to a Queen's Counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience".

It has been held by the Full Bench of Allahabad High Court in Democratic Bar Association v. High Court of Allahabad, (AIR 2000 All. 300) that "it is expected of an advocate desirous of being designated as Senior that he is aware of the restrictions, responsibilities, duties etc. under the rules framed by the High Court". This legal presumption provokes me to think aloud that any ‘exhortation'/’invocation’ to the designated seniors to remind them of the above would be ‘irritating to Mrs. Grundi’.

The legal profession is noble, but its nobility is disintegrating. It is due to the behaviour and attitude of the present day lawyers. The major qualities like honesty, integrity and sincerity have been only secondary importance. Lawyers now indiscriminately indulge in various tactics and activities unconnected with their avocation for private gain. Whatever may be the reason, the fact remains that there is an irredeemable down fall in the prestige of the profession. I feel that if the Seniors start strutting like a Peacock for catching the eye of the Judge with the object of getting preference or preaudience it can never be a model to be emulated particularly when the Supreme Court in In re Sanju v. Datta case ((1995) 3 SCC 619.) observed "that the lawyer has to conduct himself as a model for others both in his professional and in his private and public life. The society has a right to expect of him such ideal behaviour".

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Foot Note

1. Prof. Brabanti — The Role of Lawyers in Developing Countries "American BarAssocia:. Journal, January 1972 Vol. 58.

2. Halsbury's Laws of England 4th Edn. Vol. 3, para 1128.

3. The Delhi High Court rejected the attack against the use of different dress by Seniors and other Advocates. AIR 2002 Delhi 482.

An Appraisal to Praveen v. Ismail- 2005 (1) KLT 559

(By G. Krishna Kumar, Advocate, Ernakulam)

This article is intended only to share my thoughts on the decision rendered by the Honourable High Court of Kerala in Praveen v. Ismail 2005 (1) KLT 559 wherein it was held that provision for condoning the delay in filing the complaint as per N.I. Amendment Act cannot be invoked in a case where order of acquittal was in the year 1999, before the coming into force of the Amendment Act even though the Appeal was heard by the Court after the amendment Act came into force.

The Appellant/Complainant in the above said case contented that the Negotiable Instruments Amendment Act, 2002 is applicable to pending proceedings as well, in view of the dictum laid down by the Apex Court in Shivasakthi Housing Co-operative Society v. Swaraj Developers (2003 (2) KLT 503 (SC)). The Honourable Supreme Court in Sivasakthi Housing Co-operative Society case (Supra) held that amendment to the procedural laws shall have retrospective effect and is equally applicable to pending proceedings unless otherwise specifically provided in the Act.

The Honourable High Court declined to apply the dictum laid down by the Apex Court in Shivasakthi Housing Co-operative Society case (supra) for the main reason that the case in hand is a case where the accused has a vested right because of the acquittal based on the law then in force.

Furthermore, the Court appreciated the fact that the Appeal was filed in June 1999. Amendment Act came into force on 6.2.2002. The Court could have disposed of the appeal before the Amendment Act came into force and due to pressure of work, the appeal was happened to be heard only in 2004. So accused can't be put into prejudice due to such delay.

According to me the decision rendered by the High Court speaking through his Lordship Justice K.A. Abdul Gafoor in the above case is a silver lining in the criminal jurisprudence.

Apart from the reason stated by the High Court, the above decision involves following legal aspects which will come to the rescue of the accused in the instant case.

First point is that the decision rendered by the Apex Court in Shivasakthi Housing Cooperative Society's (supra) case is not at all relevant in this case. That was a case wherein applicability of re visional powers of High Court u/S.115 of the CPC was considered. The Apex Court held that revision is only a procedure so change of law during pendency of proceeding is having retrospective effect and is applicable to pending proceedings unless otherwise specifically provided in the statute.

It is settled law that no party in a lis can claim that particular procedure to be followed in his case. While pendency of a matter, if a procedural law is amended it is having retrospective effect and the amended provision shall apply to pending matter. The defence of limitation is one of the defence available to a party in a lis. That means limitation is one of the right to defence available to a litigant. Enlarging or reducing limitation period is not a mere procedure. It affects the right of a party. If that be so, any amendment which affects' right of a party shall have only prospective effect unless there is contra indication in the Amended statute. Hence the law which affects right of a party shall be the law at the time of institution of proceedings unless otherwise specifically provided in the Amendment Act. The Court of Appeal in Lewis v. Lewis (1984) (3) WLR 45), relying on it's earlier decision (Yew Ben Tew v. Kenderaan Bas Mara, (1983) 1 AC 553) held that right to claim limitation is a right and not a procedure. The Apex Court in Lachchmandas Arora v. Ganesh Lai ((1999) 8 SCC 532) held that law of limitation has to be applied with all its rigor when statute so prescribes.

The next point is that an accused in a criminal case is entitled to constitutional safeguard provided to him under Article 20(1) of the Constitution. Art 20(1) of the Constitution which provides safeguard to an accused in a criminal case reads as follows.

"Art 20. Protection in respect of conviction for offences.--(1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence."

The first part of clause (1) of Art. 20 provides that "No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence."

The Apex Court in Chief Inspector of Mines v. K.C. Thapper (AIR 1961 SC 883) held that if an act is not an offence on the date of its commission it cannot be an offence at the date subsequent to its commission. The Honourable Kerala High Court in Pareed Lubha v. Nilambaram (AIR 1967 Ker. 155) held that if the non-payment of the Panchayath tax was not an offence on the day it fell due, the defaulter could not be convicted for the omission to pay under a law passed subsequently even jf it covered older dues.

Before the N.I. Amendment Act came into force, after the lapse of statutory period, the complaint u/S.142 is barred and the limitation cannot be enlarged by way of condonation of delay. As per the Amendment Act, even after the lapse of statutory period, on sufficient ground the court can condone the delay in institution of complaint. In the present case, acquittal by the trial court was as early in June 1999 for the reason that the complaint is time barred. As per the law then in force statutory period for instituting complaint cannot be extended by condonation of delay. So an accused cannot be convicted on a time barred complaint as per the law in force at the time of initiation of the complaint. Change of law granting power to extent statutory period for filing complaint, came into force only at the time of pendency of Appeal. In view of the Constitutional safeguard provided to an accused u/Art.20(1) of the Constitution, he cannot be convicted in such circumstance.

So in my humble view, on the above mentioned legal aspects also, the decision rendered by the Honourable High Court in Praveen v. Ismail, 2005 (1) KLT 559 is good law.