THE KERALA AGRICULTURISTS DEBT RLLIEF ACT

XXXI OF 1958 -- ITS DEFECTS

(K S. Nambiar, Advocate, Trichur)

The Kerala Agriculturists Debt Relief Act 31 of 1958 (hereafter called as Act 31 of 1958) though more comprehensive and detailed than the T-C Indebted Agriculturists Relief Act 1956 and has conferred more substantial reliefs to the Agriculturist debtors than its Travancore-Cochin counter-part through its provi­sions relating to (1) The settlement of the liabilities of the Agriculturist who is unable to pay his debts under its provisions through the intervention of the Court, (2) Usufructuary mortgages, (3) Setting aside of sales of immovable properties in certain cases and etc., suffers from certain defects which have to be cured through appropriate amendments. In an Act like Act 31 of 58, where the legislature has to confer maximum benefit on the agriculturist debtor and also to protect the rights of the debtors against rich Agriculturists and to see that some class of debtors and debts should be kept out of the purview of the Act in the interest of justice and general economy of the State, there is no wonder if some defects are found. The main scope of this article is to point out some of those defects and suggest amend­ments wherever possible.

One of the most important definitions in the Act 31 of 58 is that of the word 'debt'. S. 2 (c) defines the word debt as follows:-

"Debt means any liability in cash or kind, whether secured or unsecured, due from or incurred by an agriculturist on or before the commencement of this Act, whether payable under a contract or under a decree or order of any Court, or otherwise, and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists (Repayment of Debts) Act 1955 or the Travancore-Cochin Indebted Agriculturists Relief Act 1956, but does not include (i)any sum payable to the State or the Central Government or to any local Authority....................................(vi) any debt which represents the price of goods purchased for purpose of trade:...................................."Thus S. 2 (c) defines debt and at the same time takes away certain liabilities out of the definition. But it includes any debt or balance of debt at the commencement of the Act under the corresponding Madras and Travancore-Cochin Acts. This provision of "inclusion" is unnecessary and will introduce contradictions. The use of the words "any liability payable under a contract or under a decree or order of any Court" are by themselves more than sufficient to take in all concei­vable debts. In the face of the definite language used in the main part of the definition there is no scope for entertaining any doubt as to whether some of the debts will not come within the purview of the definition. Inclusion of debts under the Madras and Travancore-Cochin Acts will only help to introduce contradiction in the same definition. S. i (c) definitely excludes several liabilities are from the purview of the Act. Some of those liabilities not so excluded under the Travancore-Cochin Act and are debts under that Act. For example S. 2 (c) excludes any debt which represents the price of goods purchased for the purpose of trade from the definition of debt while the Travan­core-Cochin Act does not contain such exclusion, and under that Act any debt which represents the price of goods purchased for the purpose of trade is a debt. So we reach at the absurd position that debt which represents the price of goods purchased for purpose of trade is specifically excluded by the provision of "exclusion" in S. 2 (c) from debt and at the same time the provision of "inclusion" in the same sub-clause that is words "and includes any debt or balance of debt due at the commencement of this Act under the Madras Indebted Agriculturists (Repayment of Debts) Act, 1955, or the Travancore-Cochin Indebted Agriculturists Relief Act. 1956" in S. 2 (c) includes such debt impliedly within the Category of debts under the Act 31 of 1958 The same is the case with some other liabilities also.

It might be, that it was anxiety of the legislature to see that all those who have been already benefited by the earlier enactments should not be deprived of those benefits by the coming into force of the Act 31 of 5 and at the same time they should get all the benefits of the new Act also and certain liabilities should not come within the category of debt, that was responsible for the introduction of the contradictory provisions in the same definition. Amendment can be effected by bringing the definition of the word debt in the Act 31 of 58 on the same line as that of the word debt in the Travancore-Cochin and Madras Acts by deleting necessary clauses from the provision of "exclusion" contained in S. 2(c) or by deleting provision of "inclusion" and allowing the provision of ''exclusion" to remain as it is.

Sec. 3, sub-sec. (1) of the Act 31 of 58 bars making of applications for the execution of a decree in respect of a debt against any agriculturist in any Court before the expiry of six months from the commencement of this Act. The Act does not make it clear as to what should be done with respect to such application pending at the commencement of the Act till the expiry of six months period. Under the provisions of S. 4 of the Act the decree debt can be paid by 17 equal half yearly installments; the first installment being payable before the expiry of a period of six months from the commencement of this Act. Thus the Court will not be in a position to proceed with the execution application before the expiry of six months period because under the provisions of the Act execution can be taken against the agriculturist with respect to a debt only if the first installment has not been paid before the expiry of the six months period. So practically there is a stay of such execution though there is no staying provision in the Act. To make the position more clear and to avoid long adjournment of execution application it will be better to add a staying provision to S 3, sub-sec (1) of the Act. The proposed amendment of the sub-section is as follows:

 "No application for the execution of a decree............from the commence­ment of this Act and no such application for execution pending at the commence­ment of this Act, shall be proceeded with beforethe expiry of such period, (underlined portion is added to the original clause).

Sec. 3, sub-section (3) is not happily worded. One interpretation of the Section (call it as first interpretation) is that if a suit is filed for the recovery of a debt before the expiry of six months period or after the Agriculturist has deposited in Court such installment of debt specified in the Act and during the period when he is entitled to pay by installments under the Act, the defendant will get his costs from the Plaintiff and the Plaintiff will have to bear his own costs except in cases where the period of limitation prescribed for enforcing the claim will expire before the expiry of six months period. Words "except in case where the claim would have been barred by limitation had no such suit been filed" appearing in the sub-sec may also lead to another extreme interpretation (call it as second interpretation) to the effect that only such suits filed on the last day of the periodof limitation are taken out of the mischief of the sub-section. Let us take the case of a promissory note executed on 18th of August 1955. If we go by the second interpretation if a suit is filed on the 17th of August 1958 it will come within the mischief of the sub-section. So every creditor will have to wait for the last day of limitation and if unfortunately he fails to file the suit on that day he loses the claim. Though it will be found under the Rules of interpretation relating to statutes the first interpretation is the correct and reasonable one it will be better to amend the sub-section so that the first interpretation may prevail over the other in unequivocal terms. Thus Section 3, sub-section (2) may be amended as follows:- "Where a creditor.....................except in case where the claims would have been barred by limitation had no such suit been filed before the expiry of six months from the commencement of this Act. ("Underlined portion added to the sub-section as it stands now).

It is provided in Section 4 of the Act for the payment of debts by installments. The mode of payment is set forth in Section 4, sub-section (2). The wording of the sub-section is not happy and it will lead to interpretation which might not have been the reflection of the intention of the legislature. Section 4, sub-section (2) reads thus: "If any debt is replayed in seventeen equal half-yearly installments together with interest accrued due on the principal debt outstanding at the commencement of this Act till the payment of each installment at the rate of 5% per annum or the contract date whichever is less................" From the sub-section it will be seen that the rate of interest has been scaled down to be only from the date of the commencement of the Act; with respect to interest till the date of the Act, the contract rate will prevail, because the use of the words "any debt is replayed in seventeen equal half-yearly installments together with interest" suggests that the whole of the debt has to be paid along with interest on the principal debt till the payment of each installment at 5% & the debt itself according to the definition in the Act is the whole amount payable under a contract or under the decree or order of any Court, which includes interest at the contract rate or the rate mentioned in the decree till such commencement. The word debt covers the whole liability till the commencement of the Act and the question of interest at 5% arises only from that date. The subsection has to be amended so as to give the full benefit of 5% interest to the Agriculturist. The use of the word "principal debt" in the sub-section is not correct. The word debt has to be deleted from the words "principal debt" to convey real meaning to the sub-section.

Section 6, sub-section (1) lays down that when a debt refers to in Section 4 is a decree amount paid by installments under Section 4 will be appropriated first towards costs, and then to interests and then to the principal. This sub-section is of no meaning in the face of the definite language in S. 4. Under that Section any debt Can be replayed by installments and decree debt also is included in the world debt. So there need not be any separate provision for decrees and a particular mode of appropriation thereto. The whole of the sub-section may be deleted being unnecessary for the purpose of this Act. About Section 6, sub-section (2) some comments on the clumsy wording of the sub-section have already appeared in the columns of K. L. T. That sub-section has to be suitably amended.

Section 11 sub-section (7) is an exproprietory legislation. Under that sub-section a mortgagee auction purchaser of the property mortgaged will be deprived of the balance of the mortgage amount if the property bought by him in the Court sale does not cover the whole amount under the mortgage decree. Such balance of mortgage amount is an interest in property with request to the mortgagee and the deprivation of it without compensation is against the provisions of the constitution. So the whole of the sub-section has to be deleted because it offends the provisions of the constitution.

Medical Jurisprudence

(M. Marcus M. L., Advocate, Kottayam)

''Strike not thoughtlessly a nest of wasps

If you strike strike hard......"

Gross on Investigations

The use of scientific knowledge enlisted in legal proceedings is of more frequency and importance in criminal trials. Medical evidence figures a prominent part in them. Evidence of this type is technically called "expertise".

Criminal justice is concerned mainly with the protection of the innocent and punishment of the guilty. The use of Forensic Medicine enables the judge to arrive at an impartial decision in criminal trials. Dr. Taylor defines medical jurisprudence as the application of medical knowledge for the purpose of law. In Hammurabi’s code there was provision made for calling in medical expert to give opinion regarding the cause of death, or serious injury by poisoning or otherwise, so that justice may be rendered between man and man. While appreciating the importance of the subject under consideration we cannot forget the fact there was a sense of animosity between the medical man and lawyers which snapped away the sincerity in reaching the truth. Medical men and the lawyers when tried to test their strength of knowledge this biased view colored their activities in the court. Medical man as opined by best "spoke from his castle" and the lawyer derided him. We have to see the consequences of such attitude. The lawyer and the medical expert might be drawn in the spirit of acrimonious dispute while the accused at the dock, pale and panting might feel that his cause is rather derlicted. The judge might feel annoyed or at least diverted from the real flow of things. This circumstance is the direct result of lack of information touching medical jurisprudence by lawyers. The different nature and feature of injuries have got certain nominated names in the field of Forensic medicine such as incised, lacerated, gunshot wounds and contusions. The cause for each of these injuries are normally different though in some cases one injury may simulate another which is a whirlpool of controversy between the medical men and the lawyers. For example a blow with a blunt weapon on the victim usually does not cause an incised wound but when such a blow is inflicted on the victim where the skin lies close to the bone it may produce injuries resembling incised wounds which feature might give the police the opportunity to plant a knife in evidence and cause perverted judgment to be made resulting in the conviction of the accused for graver a offence committed with sharp weapon. Human body subjected to external force resulting in injuries might show a peculiar coloration near the injury which color is known in medical juris­prudence as Ecchymosed. This occurs only prior to death while after death coloration appears on the dependant portion of the dead body which is called Hypostasis. This Hypostasis indicates the situation of the dead body. 4 discreet lawyers would make proper use of these signs to throw light on the question whether the injuries were antimortem or postmortem. Again the situation of the dead body ascertained from Hypostasis should make it clear whether the death was suicidal, or homicidal. Even this test is affected by scientific developments. Joan M. Ross in his "Post-Mortem Appearances" Vth edition Page 4 dealing with Post-Mortem stains observes "It is well to note that the body which was laid in a refrigerator may show an almost life-like pink flush". This might even give the police to charge the accused of having committed cold blooded murder in a case where the accused chanced to be near a dead body subjected to refrigeration by some other person after criminal homicide by such person Hudson says "there are many ways to die but there is one way to be born". We are concerned with the cause of death in Homicide.

The effect of Forensic Medicine is more telling in case of circumstantial evidence. Wills on "circumstantial evidence" mentions a case in which the accused was charged with murder of the deceased by throttling on the ground that there were nail marks on the neck of the deceased. The case rested on circumstantial evidence alone. The defence counsel put up the plea that the deceased was subject to Epileptic fits and it was urged that during the course of epileptic seizure the deceased might have involuntarily grappled with his neck causing his own nail marks and his death by strangulation. The accused was acquitted. One can feel the necessity of knowledge in forensic medicine by a lawyer in such cases.

The average law student coming out of the University at present is totally ignorant of medical jurisprudence and it is not his fault for the reason that it is not taught in the law Colleges. Coming to the session’s trial we find often the loquacious defence counsel assuming stifled silence when he confronts the medical witness. He is interested in putting questions whether a particular injury might have been caused in the mode remotely imagined by him but he carefully avoids spelling out the nomenclature of injuries deposed to by the medical witness. This situation gives added protection to a false medical witness. The young lawyer hopes much to conduct a criminal case and he accepts with avidity a crown defense and with his ignorance of medical jurisprudence you can imagine how far a medical witness could be properly examined by him.

To conclude I would most unhesitatingly state after my most anxious consideration that elementary principles of Forensic Medicine should be taught in Law Colleges as a compulsory subject, since in cases of homicide the fate of the accused or the claim of penal justice depends upon whether the death is homicidal, suicidal or accidental. I may not refrain from saying that international law to the vast majority of lawyer’s figures as "caviare to the general''.

THE 17th AMENDMENT AND LAND LEGISLATION

IMPLICATIONS OF THE GOLAK NATH JUDGMENT (S.C.)

(C. S. Subramonia Iyer, Advocate, Madras)

The Supreme Court of India in Golak Nath v. State of Pun jab (1967 S, C. J. 506) declared that the 17th Amendment is void under Article 13 of the Constitution. The 17th Amendment has taken in all the provisions of Article 31A and B with amendments and it must be presumed that with the striking down of the 17th Amendment, all previous amendments of fundamental rights have also been declared void according to the interpretation of Article 13 (2) as the term 'Law' includes Constituent Law also.

The Supreme Court then considered whether retrospective operation should be given to the judgment. The principle of prospective over-ruling was evolved by the Supreme Court in order not to unsettle past transactions as giving retrospective effect to the judgment will create chaos and unsettle the conditions of our country. It at the same time felt it as its duty to prevent fundamental rights being destroyed and the country gradually and imperceptibly pass under a totalitarian rule. Therefore it laid down that the judgment should be strictly applicable to future transactions in order to protect fundamental rights and liberty. So they felt the necessity to evolve some doctrine which has roots in reason and precedents so that the past may be preserved and the future protected (page 508 SC.)

Chief Justice Subba Rao then quotes Carfield "a Court should recognize a duty to announce a new and better rule for future transactions whenever the Court has reached the conviction that an old rule (as established by precedents) is unsound even though feeling compelled by stare decis to apply the old and condemned rule to the instant case and to transactions which have already taken place." Justice Cardozo said thus "The Blackstonian rule is out of tune with the life about us. We apply to this case because the repeal might work hardship to those who have trusted to its existence. We give notice however that any one trusting to it hereafter will do so at his peril." Chief Justice Subba Rao then says that the doctrine of prospective over-ruling confines the application of stare decis to past transactions (page 511 S.C. J). Thus the 17th Amendment and with it Articles 31 A, and B (which has also been declared to be void by Justice Hidayattullah (page 56) S C. J. (1967) in regard to 9th Schedule) cease to function after the judgment in the Golak Nath case, for transaction arising after the judgment in the Golak Nath Case. But 17th Amendment and Article 31 A may continue to function for transactions effected before the judgment as in the case of other amendments which have now been absorbed by the 17th Amendment.

All State legislations which have not come into force before the judgment in Golak Nath case have to be subjected to scrutiny of Articles 13 to 34 of Part III of the Constitution and all transactions of fixing fair rents, acquisition and compensation and ceilings etc. effected after the judgment in the Golak-Nath Case are subject to scrutiny of Courts with regard to conforming to standards enunciated in the original part III of the Constitution. As Chief Justice Subba Rao says in page 511 (S.C.J.) "Even if the party filing the appeal may not be benefitted by it, in similar appeals which he may file after the change in the law he will have the benefits.

As Justice Hidayattullah put it in page 568 (1S67 S.C.J) "That this court having now laid down that fundamental rights cannot be abridged or taken away by the exercise of amendatory process in Article 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and Article 13(2) in particular".

The absurdity of construing these observations of the Supreme Court without relating them to observations that" prospective over-ruling is intended to confine the doctrine of stare decis to condone past transactions, will be that fun­damental rights could be completely abrogated by the 17th Amendment (31 A etc.) in States, where State agrarian legislation has been enacted, while fundamental rights will be in full observance in States where such legislation has not been enacted. As justice Subba Rao says, the very object of introducing the doctrine of prospective over-ruling is to prevent the country from passing under Totaletarian Rule. Any construction of the Supreme Court judgment as allowing the amendment to the Constitution prior to the judgment to continue to function afterwards will be against the spirit of the judgment which wants to prevent the country from passing under Totaletarian Rule. Such a construction will also offend Article 14 of the Constitution as some States will have to be tolerated for not having fundamental rights and allowed to pass under Totaletarian Rule while others will have strictly to observe them. Amendments to fundamental rights have been declared to be ab initio void, but are tolerated only to protect past tran­sactions entered into on the faith of the earlier Supreme Court Judgment but which are otherwise unconstitutional.

There is another way of looking at this point which produces the same conclusion.

Under Article 394 of the Constitution, the fundamental rights commenced only on 26th January 1950. The result of the several amendments to it has been that in regard to Agrarian Reform some of these right (Article 14, 19, 31 etc.) have ceased to function until the judgment in the Golak Nath case when they restarted to function. Applying Article 13 on the day of the judgment of Golak Nath case as being the day of recommencement of those articles of the Constitution with regard to Agrarian Reform, all laws in force before the commencement of the Constitution that are inconsistent with fundamental rights will be void and in future no law abridging or abrogating fundamental rights will be valid. Taking this rule in conjunction with the doctrine of prospective over-ruling laid down by the Supreme Court, the 17th Amendment including Article 31 A and B, are void after the judgment in Golak Nath Case. The said amendments cannot continue to function after the judgment except in transaction completed before the judgment.

It can now be definitely understood that after the judgment in Golak Nath V. State of Punjab all transactions of fixing fair rent, acquiring and compen­sation of landed property and all impositions of ceiling on land holdings arising under any land legislation in States must conform to the standards laid down in Part III of the Constitution.

CRIME IN WORLD PERSPECTIVE

By W. Clifford

(Executive Secretary, the Forth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.)

Preparations for the Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders to be held at the Kyoto International Conference Hall, Kyoto, Japan, from 17 to 26 August, are gathering momentum. Registration for individual participants closed on 31 March. There are a limited number of places reserved for special; cases, but the indications are that the Congress, with official delegations, organizations and private qualified participants should already number 1,000 persons.

This Congress is unique in bringing together the policy makers, adminis­trators, scientific interests, voluntary bodies and a variety of inter-governmental and international agencies. Exchanging views with official government delegations will be representatives of the International Penal and Penitentiary Foundation, the International Society for Social Defence, the International Society for Criminology, the International Society of Penal Law, Interpol, the International Commission of Jurists, WHO, UNESCO, UNICEF, ILO, the Council of Europe, the League of Arab States and many more. Most of the great scholars in this field will be attending, and a great many with responsibilities for the operation of services in crime prevention or correction will be involved.

Another significant aspect of the Fourth United Nations Congress is that it is the first ever to be held outside Europe. The first Congress was held at Geneva in 1955, the second at London in I960. the third at Stockholm in 1965. The costs involved have served to reduce the extent of European participation, but some of the developing countries have increased the size of their delegations. Efforts are also being made to obtain aid from private trust funds or bilateral technical aid to sponsor the participation of outstanding persons in this type of work in the poorer areas of the world.

The subjects to be discussed by the four separate sections of the Congress may be summed up as follows:

(1) Planning for Crime Prevention. This means not only planning within the specific services which deal with crime but also planning of a broader national type. It is increasingly evident that on a world basis, there is some degree of the crime associated with industrialization, urbanization, social mobility, technological change etc., which could be prevented by more effective planning. If even a part of this can be specified, then not only will developing countries benefit by being enabled to avoid the mistakes already made by developed countries in the course of their growth, but the more highly industrialized countries may obtain leads to more effective prevention.

(2) Public Participation in Crime Prevention. Although this is generally accepted as desirable, it is a relatively unexplored subject. There are limits to public involvement and even negative aspects of a "do-it-yourself" initiative illustrated by the Ku Klux Klan, certain vigilante groups and the worst effects of mob rule. What are these limits? What are the features of public involvement most in need of development? How are they to be fostered and kept within reasonable proportions?

(3) The Standard Minimum Rules for the Treatment of Prisoners. The idea is to look at these fifteen years after their adoption by the First United Nations Congress in 1955. What has changed? What needs to be changed? What can be done to ensure the more general acceptance and implementation of the Rules. There are interests which would extend the Rules to all offenders—or devise parallel rules for probationers, people arrested or indeed any one under any kind of legal restraint. Others prefer to concentrate on making the present Rules universally effective before increasing or extending them. One view is that they should become a convention-like on many items in the field of human rights. The Congress will only be able to give the guidelines. Any detailed work on the Rules will need to follow the Congress.

(4) The Organization of Research for Policy Development. Clearly, this subject is related to (1) above. It will concentrate not upon methodology, the nature or types of research nor the complications of research work in general. Rather, will the discussion be concerned with making research a more practical and useful handmaiden and guide for those who have to determine policy in this field. Obviously policy-making cannot be (and probably should not be) wholly scientific, and in crime prevention, the researchers do not have sufficient answers yet to satisfy the scientific policy-makers. In reality, however, the policy-maker and the research worker are often entirely out of touch, or, if in contact with each other, often not really communicating. In some parts of the world, research in this field has still not begun; elsewhere, it may be struggling to maintain itself. There are areas where even the most rudimentary collection of data has not yet begun. It is problems of this type which will concern the Congress most as the participants seek to forge national and international links between those responsible for policy and those working on research projects.

The Fourth Congress, therefore, bids fair to become one of the landmarks in the history and development of crime prevention. It is taking place at a very propitious timeat a time when developed industrial countries are becoming increasingly aware of the real costs of crime and the menace it represents for the quality of life and future progress. It comes at a time when the developing nations are becoming jealous of their traditions, conscious of the value of their social controls and aware of the opportunities that exist for them to improve a past history in the more industrialized areas.

Apart from all professional and scientific considerations, those able to get to Kyoto for the Congress will find that the Japanese are not only thoughtful and gracious hosts but very efficient ones, too, A special visit to the nearby Expo 70 is scheduled as part of the programmed. And lady participants, or wives of participants, will be specially catered toone of the royal villas they will see is not usually open for public viewing without prior arrangement. Some Japanese who wish to see it have to wait as long as six months to obtain permission to enter. Kyoto itself was an ancient capital of Japan. It is a cultural centre which has a Japanese tourist business far exceeding the numbers it attracts from outside Japan. Here are some of the most famous Zen monasteries and historic temples and shrines of superb design and surpassing charm. The Kyoto Inter­national Conference Hall is itself a tourist attraction, standing on its own grounds framed by distant hills and encompassing a tranquil lake where the graceful swan’s emphasis the beauty of the surrounding garden laid out in traditional Japanese style.

In 1970, the International Conference Hall at Kyoto will house over 600 conferences. Over 40 of these will be international gatherings. But by far the largest will be the Fourth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. The indications now are that besides being a memorable experience for those taking part (many of whom will be seeing the Far East for the first time) the Congress stands a good chance of tracing crime prevention indelibly on the world map.

A Critical Study off The Kerala Land Reforms

Act 1 off 1964 as amended by

Act 35 of 1969

(Cherian Manjooran, Advocate, Ernakulam)

Property rights are very fundamental to the Constitution of India. Deprivation of property demands authority of law. In the exercise of the power of acquisition public purpose and compensation are indispensable conditions. Public purpose needs no definition but it requires enumeration. Public purposes for acquisition depend upon the needs and development of society. In the beginning only public roads and other similar matters were public purposes. With the advent of the Republic and Constitution, public purposes increased. Consistent with the needs of the society additional public purposes came into existence. Article 31—A is an amendment of Art 31 and it has enumerated public purposes mainly governing the acquisition by the State of an estate, extinguishment and modification of the rights therein.

"Existence of a public purpose and provision for giving compensation for compulsory acquisition of property of an individual are conditions of the exercise of the power to acquire private property. If either condition be absent, the guarantee under Art. 31 (2) is impaired and the law providing for acquisition will be invalid". These findings of His Lordship Justice Shah in R.C. Cooper v. Union India show that Art. 31—A being a law providing for acquisition without compensation, will be invalid. This was never intended by the Parliament and Art. 31—A was only passed to enable the State to acquire property without resort to a special attribute of "public purpose" for the acquisition by the State of an estate and of any rights therein, and the extinguishment or modification of any such rights. The logic of this reasoning is further reinforced by the fact that Article 31—A is a further amplification with regard to –“public purposes" only, and such a restraint of Art. 31—A is consistent with the finding of His Lordship Shah J. in the Bank case. In AIR 1969 S. Cat Page 459 His Lordship Bhagavathi J. lends support to the interpretation that Art. 31—A is only an amendment of Art. 31 which only enlarged the scope of public purposes It is stated in the said judgment that where the question of acquisition by the State of an estate arises, Art 31 (2 A) should be looked into. This interpretation reconciles the apparent irreconcilability of Articles 31 and 31 A.

The above interpretation gives rise to an apparent contradiction in Art 31-A. The provision in Art 31—A is that "Notwithstanding anything contained in Articlev13, no law providing for the acquisition by the State of an estate. shall be deemed to be void on the ground that it is inconsistent with or take^s away or abridges any of the rights conferred by Article 14, 19 or 31". Any law-providing for acquisition is only protected within the limits of "public purpose'' is borne out from the conspicuous omission of compensation in Art 31A in the ex. pression "the acquisition by the State of an estate". The omission was not without a purpose and Article 31A does not cover the transfer of ownership of the property acquired under the Kerala Land Reforms Act. It is a wrong interpretation Adopted by the Kerala State to exercise a blanket power to deprive the properties of citizens under the said Act and judicial protection cannot be afforded to such a device. Art. 31A approves acquisition but not compensation.

In this context to maintain the logical sequence Art. 31-A should be put within limits. Art. 31-A is just like "equity of redemption" which according to a Privy Council judge is an unruly dog which should be put under chains. Those expressions are very apt in the case of Art 31-A also. Articles 31 and 31-A have to be properly read together in the proper spirit of the Constitution to solve the apparent inconsistency and to find out the true meaning of the said Articles Under the impugned Act by vesting of properties in the State and by provisions of compensation the State actually acquires the properties.

Our next consideration is whether the Kerala Act is an Agrarian Reform as it claims to be. Agrarian Reform has not been defined so far either in law or by decisions. In any case Agrarian Reform is not purely land reforms much less taking away and distribution of lands. Distribution of lands as such cannot be Agrarian Reform though distribution of lands may be part of a scheme of an Agrarian Reform. AIR. 1965 SC. 632 in para 13 supplies some materials to define Agrarian Reform and the Kerala Act cannot be called Agrarian Reform in the wake of that decision.

The Kerala Land Reforms Act has no justification whatsoever and it cannot gain protection of Art. 31-A either as an agrarian reform or otherwise. The legislation is expropriator in character and it has not been designed under articles 38 and 39 to attain the objective of a socialistic pattern of society. Any agrarian reform should have as its aim to improve the agriculture and the lot of farmers. Better production and general well-being should be its objective.

The Kerala Act, it appears, is mainly intended to protect the trespassers practically encouraging further more trespassers. The trespassers become deem­ing Kudikidappukars and Kudikidappukars are conferred the right to purchase 3 cents of land in the Corporation, 5 cents in minor municipalities and ten cents in other places. The right to purchase granted to Kudikidappukars is not protected under Article 31-A as they do not come within the definition of estates and the interests therein. This right to purchase at 25% of the market value is granted to persons who are already the owners of land. A person who owns five cents of land is denied the right to purchase any land as of right because of his han­dicap of ownership of a small bit of land. The definition of Kudikidappukaran is prima facie discriminatory of small holders of property. Over and above this, Kudikidappukars who are occupants in the excess lands above the ceiling limits are conferred the right to purchase up to one acre of land under S. 95 of the Act. Under S. 96 a Kudikidappukaran gains from 3 to 10 cents over and above the three to ten cents in his occupation. The scheme of the whole Act consisting of 132 sections is confined to Ss. 95 and 96. Under S. 96 the Land Board will res­erve in each village the lands necessary for public purposes. This is a patent misuse of the protection provided under Art 31-A and it is a fraud upon the Con­stitution and colorable exercise of the powers Conferred upon the State.

The impugned legislation is not an agrarian reform as it contains nothing for the improvement of agriculture or for the well being of the agricultural community within the meaning of Articles 38 and 39 of .the Constitution. On the other hand it impoverishes and annihilates the small holders of land. This hardly achieves the objective of a socialistic pattern of society enshrined in the Constitution of India. There is no idea of a land reform and much less a scheme for the implementation of a socialistic pattern of society.

The Kerala legislation disfavors all interests within the estate and it practically liquidates all smallholders. The mere accident of ownership of five or ten cents of land is a handicap to such owners. The owners themselves may be living on rent but because of the ill-luck of owning a small piece of land he becomes a pauper to the advantage of some occupants in his property. There is no proper classification and the Act suffers from the vice of patent discrimination.

Kudikidappukars are mere occupants of land entitled to protection hold­ing no interest in the estates and they do not in any way come into the picture of estates contemplated in Art. 31-A. The fact that Kudikidappukars are those who have neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any Panchayat area or township in possession either as owner or as tenant on which he could erect a homestead" is a negation of all principles of justice, equity and good conscience. It is at once shocking to the conscience and it is also an unlimited favour done without any justification whatsoever. In a State where the density of the population is highest, where there are wanderers roaming in the streets without a homestead, the partiality shown in favour of the Kudiki­dappukars is unpardonable and that too happens to be provided in an Act which makes the tallest claim to distribute lands to the landless. This is further distribution of lands to owners in preference to the homeless. This is a hostile discrimination practiced against the destitute and homeless. Kudikidappukaras have the right to fixity of occupation under the Proclamation of 1122 in Cochin State and later in other parts of Kerala. In any view of the matter the right to purchase from within the ceiling limits is against all known canons of law especially violative of the second proviso in Art. 31-A.

S. 72 of the Act provides vesting free of encumbrances affecting the interests of strangers and the exclusion of jurisdiction of Civil Courts in adjudications. This is a calculated move to defeat the Rule of Law. The compensation provided in the Act is illusory and the provision free of encumbrances leaves strangers paupers for the fault of putting faith in the owners of land. This is a denial of their assets to meet their obligations based upon their properties. Curiously enough there is hardly any safeguards to the owners from coercive steps that are available to their creditors. This is a penalty for past ownership which directly leads them to incarceration. The exclusion of civil Courts, Evidence Act and Criminal Procedure Code is a device to put the small owners in peril or at least it has that effect.

Under S. 72E, the right to rent is vested in the State and the payment of compensation is deferred by the issue of bonds. This denies the owners the right and means to make a living and the compensation that they will have received will hardly meet the obligations forced upon them for their own existence. Delay defeats them and even the illusory compensation may be written off against their obligations.

All the arrears of rent have been written off as a prize for non-payment and it is a clarian call to defaulters for future defaults. This would make the honest, dishonest and the poor the poorer. The State makes a profit in all these transactions and much of it may be eaten away under contingency and establishments. The State has employed police power to gain profits in the name of agrarian reform and it is an abuse of power by the State.

The protection to the religious denominations and their charitable institutions are all denied in usurping their right and power to administer, hold and acquire property to meet their religious obligations without the authority of law, which should ensure public order, health and morality under Articles 25 and 26 of the Constitution. The Kerala Land Reforms Act is not a law to maintain public order and protect health and morality. The law is an abuse of the powers of the State, violative of Articles 25 and 26.

The Act is neither an agrarian reform nor can it be held valid under Articles 31-A, 25 and 26. In determining the validity of the provisions the Courts will have to consider all these aspects and the law can hardly be found valid and there is a strong case to strike down the entire Act as unconstitutional and void giving a chance for the legislature to have second thoughts before they launch new legislations.