THE BAR OF RENT CONTROL PROCEEDINGS BY THE

KERALA ACT 1 OF 1957

(K. E. Gopinath, B.Sc., B.L, Advocate, Cannanore)

The definition of hut in Section 2 clause 2 of the Kerala Stay of Eviction Proceedings Act, 1957, has provoked certain criticisms for the reason that it has not been happily worded. According to the definition 'hut' means any building which is constructed principally of wood, mud, leaves, grass, or thatch. One is inclined to feel that an unexpected advantage, consequent on the definition, accrues to tenants within the purview of the Madras Buildings Lease & Rent Control Act. It would appear that the definition couched in such wide and ambiguous language confers benefit to such tenants whom the Act do not seek to help.

That being so, how far the definition of hut will interfere with the proceedings under the Madras Buildings Lease & Rent Control Acis a question of some niceties. Some are of the view that a petition filed under Section 7 of the above Act for eviction on the ground of willful default, will have to be stayed, if the building in question falls within the definition of a hut. It is the propriety of such a view that is the topic for discussion in this article.

Here the question under consideration is whether the benefit which a tenant under the Madras Act, is supposed to enjoy, does really exist? In other words, whether a petition under Section 7 of the Act, for eviction of a tenant from a building which is brought within the scope of the definition of hut, is liable to be stayed under Section 4 of Act 1 of 1957? Or what exactly is the scope and extent of the saving provision in Section 3, clause (c) of Act 1 of 1957?

Sec. 3 cl (c) states:

"Nothing in this Act shall apply to buildings rented out including houses, - shops, or warehouses and the sites thereof together with the gardens or lands appurtenant thereto; Explanation:For the purpose of this clause a hut which is a kudiyiruppu shall not be deemed to be a hut."

The above section would have left the proceedings under the Madras Act uninterrupted, but for the explanation contained therein. However, a careful understanding of the section will make clear that the fact that a building of which eviction is sought, merely satisfies the definition of "hut" is not in itself sufficient, to take it outside the saving provisien. To be more accurate, only a hut which is a kudiyiruppu, is within the ambit of Act 1 of 1957.

So much so, kudiyiruppu is the guiding factor in deciding the question of stay. The term kudiyiruppu is not defined in the Act and as it is clear from Section 2 cl (3) and (4) we have to look into their definitions, as found in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act, 1955 wherein;

"Kudiyiruppu" means the site so given together with the house, hut or shed thereon which is used as a place of residence by the kudikidappukaran with the permission of the owner" and

"Kudikidappukaran"means a person who has no homestead or land of his own to erect a homestead and has been permitted by an owner of land for the purpose of erecting a homestead with or without an obligation to pay rent for the use and occupation of the site so given."

An analysis of the above definitions shows that

(1). A kudiyiruppu is a site together with a building thereon;

(2) the building is built by the tenant on the site belonging to the landlord with the latter's permission.

(3) the building is a residential house, hut or shed.

So much so, a hut which is a kudiyiruppu means a building principally of mud, wood, leaves, grass or thatch, constructed by a tenant having no homestead of his own on a site granted by its owner, with the permission of the latter, with a stipulation to pay rent or not. It is only such buildings that are sought to be brought within the purview of the staying proviso.

So the fact that a building is built by a tenant is of utmost importance, because that is the sine-quo-non of a kudiyiruppu. It may be noted that an ''Ulkudi" which is the term applicable to Malabar, has the same meaning as of kudiyiruppu known in Travancore-Cochin. It follows therefore, that any sort of building, may be a hut even, belonging to the landlord and let out to people on rent, is not in the least affected and is safely beyond the clutches of the Kerala Stay of Eviction Proceedings Act. The legislature has made it amply clear in Sec. 3 cl. (c) that it was not its intention to thrust its hands within the province of the Rent Control Act. But it was sure and certain that relief should be afforded to Ulkudidars and Kudikidappukars who have no homestead of their own, from eviction, and that accounts for the explanation found in the section.

On a close scrutiny of the Act it will be clear beyond doubt, that the definition of “hut", though not happy, is harmless in itself; for it is not significant in consideration of any proceedings under the Buildings Lease and Rent Control Act. The question of stay will only arise in case the building is an Ulkudi or Kudiyiruppu

A NOTE ON KERALA LEGAL AID RULES

 (M. S. Kurien B. A . B. L., Advocate.Ernakulam)

One thing we are sure of. A Communist Government is never guilty of inertia. The heresy consists in the censer being always directed to an over -- Government.

All credit, to whomsoever it is due, for making the idea of Legal Aid to the poor a live issue. But I fear there is a string attached to the scheme proposed by the present regime. The simple smart thing would have been to leave to the client to choose his own advocate and then pay the advocate out of State funds. Under the rules published by the Kerala Government, Counsels are appointed by the Presiding Officers from a panel of names submitted by the Bar Association President.

My point is this. No body shall tamper with private initiative and individual choice. The right to be defended by an advocate of his own choice is no mean right. No solicitude, from whatever quarter it comes, if it swallows up the personal predilection of the citizen, is healthy enough.

I may now mention Art. 22(1) of the Indian Constitution. "No person who is arrested shall be detained in custody without being informed as soon as may be, of the grounds of such arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice." The right of the client to choose his own advocate is well stressed by no less a body than the sixth Congress of the International Association of Democratic Lawyers. Communist atrocities in Hungary were specially studied by them. The quintessence of all their deliberations is this. ''An accused without means shall be entitled to effective legal aid and representation by a qualified lawyer of his own choice before all the tribunals without exception." And, are not the advocates themselves who are outside the panel, prejudiced in many ways? Let as hear them.

Reasons for Administrative Orders

(P. Leelakrishnan, M.A., M.L., Lecturer in Law, University of Kerala)

The Kerala High Court decision in Ibrahim Kunju v. State of Kerala! lays stress on the essentiality of stating reasons in the order of a public authority.

The petitioner, the president of a Co-operative Society challenged the order of the Joint Registrar of Co-operative Societies superseding the Board of the society for six months and the order of the minister endorsing the said supersession.

The Joint Registrar took the decision on the report of the Deputy Registrar recommending supersession for the alleged irregularities. The details of this report had not been put to the petitioner by the Joint Registrar before he took the decision. The petitioner appealed to the minister. On the day when the case was taken by the minister, the advocate of the petitioner sent a written adjournment petition without the knowledge of the party. The minister did not allow the adjournment petition while on the other-hand he allowed the impleading of a member of the society to oppose the appeal. The minister dismissed the appeal endorsing the order of the Joint Registrar. In the petition before the High Court the main grounds of attack were that both the authorities did not state reasons for their orders and that they did not observe the rules of natural justice.

The Court seems to have accepted the contention that Joint Registrar's conduct in not furnishing the copy of the report of the Deputy Registrar was bad (The Court directs that the Government should furnish the petitioner with a copy if the Government goes to rely on it Ibid. p.70). The Court also accepted the petitioner's plea that he had no opportunity to engage another lawyer (Ibid, p 70. The circumstance that led to this view was that the adjournment application sent by the lawyer was without the knowledge of the party and that the minister had rejected the application in his back.) Lastly the High Court held that both the orders were bad as they did not disclose any reasons in support of the conclusions.

Krishna Iyer J. has observed in the case that battle for natural justice in administrative actions had already been fought and won in countries 'where rule of law is respected. Hence we should also take the doctrine of natural justice 'as part of the humanist discipline of the executive authorities who affect rights of citizens by their acts' (Ibid. p. 67). Really the importance of the decision lies in the fact that the major part of the judgment is devoted to establish that giving reasons for an administrative order is part of this 'humanist discipline'. It has been held that the minister's non-interference with the order of the Joint Registrar without any examination of the alleged irregularities was 'an abdication of the appellate power' given to him 'rather than an exercise of it' (Ibid. p. 68.) The judge categorically lays down the principle that 'quasi-judicial obligation involves giving of reasons for orders, since justice is not expected to wear the inscrutable face of a sphinx' (Ibid). Krishna Iyer J. has taken a bold step forward in acknowledging statement of reasons in an order as part of the common law doctrine of natural justice ( Writers on Administrative Law do not specifically say that this is part of natural justice. Cf. Wade, Administrative Law (1967) p 195) while courts were hesitant (See, Chatterji. A, Natural Justice and Reasoned Decisions, 10 J. I. L. I. (1968), 241, p. 247. But the writer has quoted a Delhi decision (Jogannath v. Union of India AIR. 1967. Delhi 121 p. 124) as one which held giving reasons as part of natural justice) to take up such a stand so far.

Tracing the history of judicial dicta on the point one finds that the present case has much similarity to the M. P. Industries v. Union of India (AIR. 1966 SC. 671.)and Bhagat Raja v. Union of India (AIR. 1967 SC. 1606.). In these cases the Supreme Court held that the Central Government while rejecting the revision under Rule 55 of the Mineral Concession Rules, 1960 had to act judicially. The revision was against the State Government's order rejecting the application for license. In these cases neither the State Government nor the Central Government stated the reasons for the order rejecting the license. The Supreme Court held (The Supreme Court allowed the appeal in Bhagat Raja's case (AIR .1967 SC. 1606) bud dismissed the appeal in M. P. Industries case (AIR. 1966 SC 671) as in the latter the State Government had already notified afresh inviting applications for license) that this had vitiated the orders. In Ibrahim Kunju's case (1969 KLT. 230; AIR. 1970 Ker. 65) the same spectacle of issuing orders without stating reasons to support them is seen in both the levels of public authorities. If an appellate or provisional authority endorses an order of a subordinate tribunal or of an officer who had already given valid reasons for the decision, the order of the appellate or provisional authority will not be declared invalid on the ground that there are no separate reasons to support it. But when the reasons given by the subordinate tribunal are scrappy or nebulous and the appellate authority makes no attempt to clarify them the order will not stand. (Bhagat Raja v .Union of India AIR. 1967 SC. 1606 p. 1610.) Suppose there is an order which does not state reasons but at the same time implies the reasons. (Nandram Hunatram v. Union of India, AIR. 1966. SC. 1922. The State Government gave notice to take the colliery from the firm in the circumstances where the partners of the lessee fell out, when the usual operations could not be made and when there was apprehension that colliery would be flooded. The revision against this order was rejected by the Central Government on these apparent grounds though they were not stated.)The order will not become bad on the mere ground that reasons are not specifically laid because the circumstances are so clear that absence of reasons could not possibly leave anybody in doubt whether or what the reasons were. (Bhagat Raja v. Union of India AIR. 1967. SC. 1506 p. 1614. Mitter J., distinguished this case with Hunatram's case (AIR) 1966 SC. 1022) saying that in the latter the circumstances spoke themselves for the cancellation of the lease) in the case under comment the facts do not show that there are such implying circumstances. But on the other hand, it can be seen, the report of the Deputy Registrar of Co-operative Societies had its 'dark' influence upon the order' of supersession and had been in full accepted by the public authorities who had neither given an opportunity to the petitioner to effectively oppose the report nor exercised their mind to the explanations already given by the petitioner.

The necessity of giving reasons in administrative orders had been pointed out by courts as well as Jurists. If reasons are given, an appellate court may be in a position to canvass the correctness of the reasons given, (M.U.M. Services Ltd. v. Regional Transport Authority AIR. 1953 Mad. 59 p 60. The Court held that the Regional Transport Authority should give reasons when it issues a permit instead of merely writing down that the selected person was 'most suitable'. The Court pointed out that the authority did not give reasons for the suitability of the person selected.)to quash the decisions if the reasons are not adequately given (Wade, Administrative Law. (1967) p. 216.)and thus to make a judicial review of the decisions easy and effective (Schwartz, An Introduction to American Administrative Law. (1962) p. 166; Harinagar Sugar Mills Ltd v. Shyam Sundar, AiR. 1961 SC. 1669 per Shah J., p. 1678.)If reasons are not given the right of appeal will become otiose (M.U.M Services Ltd. v. Regional Transport Authority AIR. 1953, Mad. 59, per Subba Rao J., p. 63.). That-may be the main reason why Cardozo J. (The United States v. Chicago. M. St. P. & PRR, 79 L. ed. 1023, 1032; 294 U.S 499, 511 (1935). When the Interstate Commerce Commission does not precisely state its decision with such 'simplicity and clearness 'that will make 'a halting impression' ripen into 'reasonable certitude' the Supreme Court is not in a position to endorse the decision.) had stated that the judges must know what a decision meant before the duty became theirs to say whether it was right or wrong. In India, Articles 136 and 227 of the Constitution expressly give the power to the Supreme Court and the High Court respectively to review the decisions of the tribunals in the country. As Mitter J. has pointed out the courts exercising the powers under these articles will be at a disadvantageous position if the tribunals do not state reasons for their decisions. (Bhagat Raja v. Union of India AIR. 1967, SC. 1606 p. 1610.)

The need for giving reasons is connected with the concept of speaking order. As Lord Cairns has held a speaking order is one which states upon the face’ the elements which had led to the decision (The Overseers of the Poor of Wallsal v. London & North Western Railway Co., (1878) 4 AC. 30 p. 40. The judge held that an unspeaking or unintelligible order would make the judicial control an impossibility). Basing these words it can be found that a speaking order means an order that gives reasons for the decision and an unspeaking order means an order which gives no reasons (R. v. Northumberland Compensation Appeal Tribunal, Ex-parte Shah, (1951) 1. K.B. 711 per Lord Goddard C. J. p 718.) In short an order which speaks for itself or states the reasons in support of it, is a speaking order. In Joseph v. Superintendent of Post Offices, (1960. KLT. 1304; AIR. 1961. Ker. 197 per Ansari C. J. p. 199. A non-departmental branch postmaster was removed from service for his unsatisfactory work by the res­pondent without making any reasons in the order which the High Court quashed.) the Kerala High Court has laid down that an order by a quasi-judicial authority must be a speaking order and that the absence of reasons in it would be fatal to its legality.

It is to be noted that on the question of not giving reasons for the rejection of the adjournment application Krishna Iyer J., has taken a definite stand holding that it was not against natural justice. The judge is of the view that giving reasons for every incidental or interlocutory order 'would make the canons of natural justice unnatural and unjust. (1969 KLT. 230. p. 237; AIR. 1970 Ker. 65 p. 70)

It is now well-settled that it is the basic right (Schwartz, An Introduction to American Administrative Law, (1962) p. 164) of the litigants to know the reasons for a decision which adversely affects their person or property. If the party affected by the decision is kept in ignorance of the reasons it will clearly prejudice his right to move the provisional or appellate court (Chandra Deo Sing v. Prakash Chandra Bose, AIR 1963 SC. 1430 per Mudhol-kar.J,,p.1435) it has been said that orders without reasons would introduce arbitrariness in administrative orders.( Schwartz, op. cit.) The condition to give reasons introduces clarity and excludes or at any rate, minimizes arbitrariness. (M. P. Industries v. Union of India, AIR. 1965 SC. 671 p. 674.) It gives satisfaction to the party against whom the order is made. The necessity of giving reasons can be described in no better words than those of Subba Rao J. (Ibid. pp. 674, 675.)

"If the tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuse of power. But, if reasons for an order are to be given, it will be an effective restraint on such abuse, as the order, if it discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction."

The compulsory need to articulate the reasoning process upon which a decision is based will require the administrative authority to work out in its mind all the factors which are present in a case. (Schwartz, op. cit) Thus the obligation to evolve a chain of reasoning is desirable from the point of view of promoting a sense of the judicial spirit in the adjudicator no less than in promoting certainty into the body of the law. (Robson Justice and Administrative Law (1947) p. 277 this certainty into the body of law must be what Cardozo J. meant by the 'reasonable certitude'. See, n. 20, supra)

In England and U.S A. Statute makes it necessary for the administrative adjudicators to state reasons in their decision. Thus Section 12 of the Tribunals and Enquiries Act, 1958 in England requires the tribunal or minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving or notification of the decision, to state the reasons'. One has to say that the request provision in the section is unfortunate (Wade, op. cit. p. 248,) for it is a protection for the administrative adjudicators, however, in practice requ­ests are seldom made but most tribunals give their reasons as a matter of course. In the United States, the Administrative Procedure Act, 1946 requires administrative decisions to be accompanied by 'findings and conclusions, as well as the reasons or basis there for, upon all the material issues of fact, law, or discretion presented on the record'. (Section 8 (b) In India there is neither an Administrative Procedure Act nor a Tribunals and Enquiries Act which requires the tribunals and other adjudicators to state reasons in their decision. But the evolution of the doctrine of reasoned decisions through judicial process has rather made itself as part of a growing 'common law' of natural justice in India. In this light the decision in Ibrahim Kunju v. State of Rerala (AIR. 1970. Ker. 65. p. 70.)merits appreciation especially at a time when the barriers between the administrative and the so-called quasi-judicial powers are being narrowed down (The recent trend of the courts is to pull down the artificial wall that divides the two powers for the purpose of natural justice, See, Kraipak v. Union of India AIR" 1970 SC. 150 p. 154; State of Orissa v. Dr. Binapani AIR. 1967 SC. 1269 p. 1272, In re H. K. (An Infant) (1967) 2. QB. 617. p. 630.). One who understands this will certainly advocate for a special training (Krishna Iyer J. had suggested that administrative officers should be educated in Administrative Law so that 'many an unwanted babe in the writ jurisdiction would not have been born' Ibrahim Kunju v. State of Kerala 1969 KLT. 230 p. 238; AIR. 1970 Ker. 65 P. 70.) of administrative authorities on the various developing fields of natural justice.

Late Sri K.V.Suriyanarayana Ayyar

It is with profound sorrow that we have to record the sad and sudden passing away of Sri. K. V. Surianarayana Ayyar in his residence at Ernakulam on the morning of 18th July 1970 Grievous has been the blow that has been struck by destiny in snatching away from our midst quite unexpectedly a friend and guide, a doyen of our Bar. Who argued cases and moved jovially with us till a few days back. We are deeply grieved because of his long and happy association with the Kerala Law Times as a member of our Editorial Committee. His able guidance and valuable support were a source of strength and success for us. We take this opportunity to express our tribute of gratitude for the assistance given to us by him.

Mr. Surianarayana Ayyar was born on 23rd June 1893 in Alathur Village. He set up practice in 1918 and within a short time he distinguished himself in the profession with a large and lucrative practice. In 1932 he was appointed as the Government Pleader at Calicut in which office he continued for 12 years with marked distinction and meritorious service. With the formation of the Kerala High Court in 1956 he was appointed as the first Advocate General of Kerala, and he discharged the duties of that onerous office till 1960 to the unstinted appreciation of the Bench and the Bar and the public. He was the President of the Kerala Advocates' Association. His activities were not confined to the legal profession. While at Calicut as the Chairman of the Calicut Municipality he rendered great services to the public He possessed an aptitude for thinking legally, tenacity, talents and tact, all contributing to his glorious success as an eminent advocate. He always tried to preserve the purity and prestige of the profession and the dignity of the Bench and the Bar. By his industry, individual effort and innate worth he made his way to the front rank in the Bar proving himself to be one of our most successful advocates. Many reported decisions in which he appeared and argued remain as standing monuments of his talents, erudition and profound knowledge in all branches of law. There was power in his advocacy but no bluster. He had a well-disciplined equable temper by reason of which he disarmed his opponents and hostile judges in a manner which few could emulate. Though firm and fearless, he was never offensive or insolent to the court, nor was he rude or arrogant towards the opponent. He was never showy, shallow, confused, angry or blustering in his manner. He was ''deep, yet clear; gentle, yet not dull; strong without rage, without overflowing full".

He commanded great respect with the Bench and the Bar and the public. His simple and unassuming manners earned for him the love, respect and esteem of those with whom he came into, contact. In him we have lost a great lawyer and a good man.

He will be held in affectionate remembrance by his large circle of friends and relatives and the legal profession. As for us, we can never forget him. May his soul rest in peace

"To live in the hearts of those

We leave behind is never to die".

APPOINTMENT OF LEGAL PRACTITIONERS

AS HONY. MAGISTRATES

(G. Sadasivan Nair, Advocate, Quilon)

1. In the Kerala Gazette dated 10th June 1958, a Government Order (G.O.No. (MS) 686 dated 5th June 58 has been published under caption 'Appointment of Legal Practitioners'. The Order purports to remove certain hardships caused by a prior order of Government (G. P. No. CJ 6-6871/56/JD dated 30-10-55) imposing a bar on legal practitioners being appointed as Hony. Magistrates.

2. The principle underlying the bar in question is embodied in Section 557 of the Code of Criminal Procedure, which says that 'no pleader who practices in the court of any magistrate in a Presidency town or district shall sit as a magistrate in such court or in any court within the jurisdiction of such court'.

3. Government appear to have recognized the fact that such bar as was imposed by the earlier order caused hardships by denying opportunities to legal practitioners to serve as Hony and Special Magistrates in Bench Magistrates Courts and calling in men without the requisite knowledge or training to discharge judicial functions. As such, one would rightly expect Government to remove the bar altogether or at least to relax the restriction placed on legal practitioners. What confronts one, however, in the present order is just the contrary inasmuch as the scope of the bar on legal practitioners has only been further widened.

4. The latest order in effect precludes legal practitioners practising in any civil, criminal or other court whose jurisdiction takes in any part of the territorial jurisdiction of the Bench Court from being appointed as Hony. Special Magistrates of that court. Besides, those legal practitioners within the jurisdiction of the Bench Court who may have cases pending in any court within that jurisdiction will also be disqualified. Apparently this is unwarranted and goes counter to the professed intentions of the Government, inasmuch as it precludes many more legal practitioners from being appointed as Hony Magistrates than under the original order or under the prohibition contained in the Code of Criminal Procedure.

5. Suffice it to say, the Government order under review leaves much to be desired and its object stands self-defeated.