The Kerala Land Reforms (Amendment)

Act 35 of 1969

Divesting of Jurisdiction of Civil Courts

(M. Velayudhan Nair, Advocate, Alatur—Palghat)

 The emasculation of the landholders which was begun by the Legislature about 40 years ago has been completed by the Kerala Land Reforms (Amendment) Act 35 of 1969 It is a revolutionary measure, containing drastic provisions which deprive land-owners of their rights of ownership and enjoyment and will throw them out of gear by upsetting their domestic economy. The new Amendment Act has abolished, overnight, the rights of ownership of all the landlords and intermediaries in the holdings outstanding in the possession of the cultivating tenants by vesting those rights in the Government with effect from 1st January 1970 and providing for assigning those rights to the cultivating tenants for a nominal price-payable in sixteen easy annual installments. The compensation provided “to be paid to the ultimate land-holders and intermediaries is most inadequate and illusory. On account of the vesting of the rights of ownership of the lands in the Government with effect from 1-1-1970, the landholders and the intermediaries are prevented from collecting the future rents of the properties accruing since that fateful day-1 st January 1970. This disability imposed by the Statute coupled with the absence of a provision for immediate payment of ad­equate compensation as the just equivalent of the rights of ownership and the provisions deferring the payment of compensation to a future date in sixteen annual installments will immediately create a problem for the landholders and the intermediaries they will be literally thrown into the streets. It is really a problem of existence of the large number of landholders in the State whose mainstay is the income that they have been getting from their lands. It is well to remember that there are only very few hereditary jenmies in the State. The fact is, but it is conveniently forgotten by the politicians who vie with one another ,n the matter of passing tenancy legislation, that the large majority of the landholders in the State belong to the middle class who have purchased properties with their hard earned savings and they either leased those properties to tenants or purchased the properties outstanding in the possession of tenants at a time when leases were permitted by the law and when granting leases was considered as a normal mode of enjoyment of properties. On the face of it therefore it was extremely cruel to tell these landholders and intermediaries one fine morning that from tomorrow onwards they will cease to be the owners of their properties and their rights of ownership stand transferred to the Government  and those rights are proposed to be assigned to the tenants on easy terms, whether they want it or not It is well known that the annual income from one acre of double crop land would now be about 250 paras of paddy, but "the fair rent" calculated according to the provisions of the new legislation would not come to more than 45 paras of paddy Per acre. The tenant has to deposit only the price of 45 paras of paddy for one acre of double crop land annually for 16 years towards the purchase mice and he can only enjoy the remaining income. In the meanwhile, the ultimate jenmi and the intermediary will not get any rent from the tenants and they are faced with the prospect of starvation. This, in short, is the desperate predicament to which the landlords and intermediaries .are reduced by the provisions of the Amendment Act. It is no wonder that the new Act has become a nightmare to all the landholders in the State.

2. One general observation falls to be made at this stage. And that is that all that the cultivating tenants really wanted was fixity of tenure besides a small reduction in the contract rent. These reliefs have been secured to them by the provisions of the parent Act I of 1964. There was therefore no need to thrust the jenm right on the cultivating tenants and to make provisions compelling them to purchase the jenm right from the Government-- whether they want it or not. It is a matter of common knowledge and it is significant that, although the parent Act I of 1964 contained provisions for enabling tenants to purchase the landlords' right through the Land Tribunals, very few tenants filed applications in that behalf.

3. For obvious reasons it is not possible to deal with all the drastic provisions of the new Act in this article. For the present, I am confining myself in this article to a criticism of the provisions in the new Act which seek to stultify the powers of the Civil Court in certain important matters and to transfer its jurisdiction to the Tahsildars and Land Tribunals.

4. In the guise of introducing measures of agrarian reform several provisions have been enacted in the new Act which have absolutely no relation to land reforms and which are calculated to open the door wide for trespassers and to enable unscrupulous persons to trespass on other people's lands and' to cultivate them and enjoy the rents and profits thereof without any obstruction being caused thereto by injunction orders granted and receiver appointments made by the civil courts. The so-called Amendment Act of 1969 seeks to effectually stultify the powers of the civil courts by depriving them of their jurisdiction to try and decide important questions regarding the existence of the relationship of landlord and tenant between the parties-- questions which are essentially matters to be tried and decided by the civil courts -- and investing the Tahsildars, the Revenue Divisional Officers and Land Tribunals with that jurisdiction. I am referring to new Ss 26, 29-B and 125 and to the amended S. 32 of the Act.

5. New S. 26 takes away the jurisdiction of the civil courts to entertain any claim for arrears of rent and invests the Land Tribunals with that jurisdiction. Be it noted that the Officers to be constituted Land Tribunals under the Act are judicial Officers of the rank of a Munsif or au Officer not below the rank of a Tahsildar. Even Subordinate Judge's courts, whose pecuniary jurisdiction is unlimited, cannot entertain suits for arrears of rent or michavarom after 1st January 1970. It is a matter of common knowledge that difficult questions of fact and law usually arise in suits for arrears of rent and michavarom. New Section 29-B enacts that any person claiming to be a cultivating tenant of any land is entitled to apply to the Tahsildar for an order that he is entitled to cultivate the land, complaining that he is prevented or obstructed from cultivating that land and the Tahsildar shall after making such enquiry as he deems necessary, decide whether the applicant is entitled to that land and the Tahsildar is entitled to pass an order restoring the applicant to possession of that land and allowing him to cultivate it. Sub-section 3 of new S. 29-B provides that if any suit is instituted by the opposite party relating to the said property after the date of the application to the Tahsildar, the Court shall not grant an injunction restraining the applicant from cultivating the land till the final decision in such suit. S. 32 has been amended by substituting the word "land" for the word "holding". These new-provisions are calculated to give a license to mischievous persons-- rather they amount to an invitation to them -- to take the law into their hands and to trespass on other people's properties and wrongfully enjoy the rents and profits thereof during the pendency of the proceedings before the Tahsildars and the Land Tribunals without any fear of their activities being interfered with by any injunctions granted or Receiver appointments being made by the civil courts.

6. New S. 125 which replaces old S. 125 is in the following terms:—

125. Bar of Jurisdiction of civil Courts.

(1) No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Board or Government or an Officer of the Government:

Provided that nothing contained in the sub-section shall apply to proceedings in any Court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969.

(2) No order of the Land Tribunal or the appellate authority or the Land Board or the Government or an Officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act.

(3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only.

(4) The Land Tribunal shall decide the question referred to it under sub section (3) and return the records together with its decision to the civil court.

(5) The Civil Court shall then proceed to decide the suit or other proceeding accepting the decision of the Land Tribunal on the question referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court.

(7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969 or before such question has arisen, shall stand cancelled."

7. This is one of the most mischievous and dangerous sections introduced by the Amendment Act. The effect of sub-sections 3 to 7 is that if in a suit for injunction or recovery of possession on the strength of plaintiff's title as against a trespasser, the defendant-trespasser simply puts forward a false and dishonest plea that he is a tenant of the properties, the civil court is bound to stay the suit and refer the question regarding the existence of the alleged tenancy to the Land Tribunal for decision and the civil court is bound to await the decision of the Land Tribunal and to give its imprimatur to the decision of the Land Tribunal on the question referred to it and to pass a decree accepting the decision of the Land Tribunal-- although the civil court is satisfied that the decision of the Tribunal is prima facie wrong and perverse or contrary to law. And till the Land Tribunal decides the question regarding the existence of the alleged tenancy referred to it under sub-section 3, the civil court is prohibited from exercising its jurisdiction togrant an injunction or appoint a receiver to protect the plaintiff's possession and to secure the rents and profits of the properties in the interval (Vide the first part of sub-section 7). If a person in possession' is wrongfully ousted from possession by a trespasser or if his peaceful possession is illegally threatened by another or if a person commits or threatens to commit waste on his property by cutting trees or demolishing buildings or otherwise, the person in possession should certainly be entitled under the general law to protect his possession by suing in ejectment or for an injunction on the strength of his possessory title. Such a person can always say that his possession cannot be disturbed and he is entitled to invoke the jurisdiction of the civil court to issue an interim injunction or to appoint a receiver to help him to maintain his possession or to secure the rents and profits of the properties pending suit. This is a fundamental right of the person who is in possession on the strength of his possessory title.

8. S. 125 is a dangerous provision which will lead to disastrous consequences, opening as it does, a wide door for persons to take the law into their hands and molest and disturb persons in peaceful possession of their properties. What is the remedy of the person who was in possession of the property, if the person who trespassed on his property claiming tenancy right is ultimately found to be an imposter, having absolutely no tenancy right or possession or right to possession of the property? He is obliged to submit to the trespass and to look on helplessly with folded hands when the trespasser harvests and takes away the crops raised by him and commits waste and cultivates his land and enjoys the rents and profits thereof, until such time as the Land Tribunal decides the question of the existence of the tenancy against the trespasser. And then it will be too late to grant the preventive relief of injunction, as by that time the trespass will have been completed and the plaintiff would be put to heavy and irreparable loss and difficulties.

9. Now, a dispute as to the existence of the relationship of landlord and tenant is an important matter and often raises difficult questions of fact and law. The question whether the defendant in a suit for injunction or for possession on the strength of plaintiff's title is a trespasser or is in lawful possession on tenancy right, is as his Lordship Chief Justice Mr. P. T. Raman Nayar points out in a recent case Kunchan Kumaran v. V. Ramachandra Iyer - 1969 K. L. T. 822 essentially a question for the civil court to decide. Besides rank trespas­sers, persons claiming to be in possession under leases granted in contravention of Section 74 of the Act and persons who may have obtained leases from the Urallers of a Devaswom to which the properties do not belong - just as in the case in Narayanan Nambiar v. Raman Chettiar (1969 K.L.T. 499)-- and persons claiming to be "deemed tenant" under Sections 4 to 11 of the Act may claim tenancy rights. These are difficult questions which can be satisfactorily decided only by the civil courts. What is the reason or justification for depriving the civil courts of their jurisdiction to decide questions involving such disputes and investing the Land Tribunals with that jurisdiction? Is it to be supposed that the Officers who are to be constituted Land Tribunals under the Act are more learned or more efficient and competent than the judges who preside over the civil courts?

10. Curiously enough, the jurisdiction of the civil court to entertain suits for injunction or possession on the strength of title as against a trespasser is not taken away by the Act. It is retained; but its jurisdiction to try and decide the question of the existence of the tenancy claimed by the defendant is taken away by the new Act and that jurisdiction is given to the Land Tribunal and the civil court is commanded to accept the decision of the Land Tribunal on the questions referred to it and to pass a decree accepting the decision of the Tribunal although the civil court-- it may happen to be a District Court or a Subordinate Judges' Court -- may justly feel that the decision of the Land Tribunal on the question referred to it is wrong and perverse and contrary to law. Paradoxically enough, the ultimate decree in the cause (which is based on the decision of the Land Trib­unal) will have the appearance and effect of a decree and judgment of the civil court, although the civil court has not applied its mind to the matter in dispute and is not in any way responsible for the decree and judgment! Nothing can be more absurd and ridiculous than such a situation. In ray opinion, the provisions of new S. 125 constitute an insult to the judiciary.

11. Sub-section 7 of new S. 125 enacts a contradiction in terms. The first part of sub-section 7 prohibits the granting injunction or appointment of receiver by the civil court only till the Land Tribunal decides the question of the "existence of tenancy etc., referred to it under sub-S. 3. It is obvious that the words "any such injunction or appointment" occurring in the second part of sub-S. 7 can relate only to the injunction granted or receiver appointment made by the civil court under the first part of this sub-section, viz., injunction granted or receiver appointments made by the civil court in any suit or other proceeding coming within the purview of sub-S. 3. And if, as I shall show presently, sub-section 3 applies only to suits and other proceedings initiated after the coming into force of the Amendment Act 35 of 1969, and suits and other proceedings pending at the commencement of the Act of 1969 will not fall within the purview of sub-section 3, injunctions granted and receiver appointments m3de by the Civil Court in suits and proceedings pending at the commencement of the new Act cannot be affected and cannot be treated as cancelled. The second part of sub-section 7 is inconsistent with the first part and is also in irreconcilable able conflict with the proviso to sub-section 1 which is a saving clause, saving proceedings pending in any civil court from the operation of sub-section 1 which is the provision that bars the jurisdiction of the civil Court to decide any question or matter which is required to be decided by the Land Tribunal. It is obvious that the question as to the existence of the alleged tenancy mentioned in sub-section 3 is a question which is "required to be decided" by the Land Tribunal within the meaning of sub-section 1.

12. Apart from the proviso to sub-section 1 of S. 125, the language used in sub-section 3 also shows that only suits and other proceedings which are instituted after the coming into force of the Amendment Act 1969 come within the purview of sub-section 3. Note that the expression used in sub-section 3 is "arises". Where therefore a dispute or question as to the existence of tenancy has already arisen between the parties in a suit or proceeding pending at the commencement of the new Act, in other words, where a civil court is seized of the question or dispute in a suit or proceeding instituted before the commencement of the Act, the civil court will not lose its jurisdiction to adjudicate upon that question and therefore is not bound to stay the suit and refer the question to the Land Tribunal for decision and the civil court is competent to grant injunctions and appoint receivers in such suits and proceedings. Such suits will not come within the purview of sub-section 3. In other words, the provisions in sub-sections 3 and 7 commanding stay of the suit and reference of the question mentioned in sub-section 3 to the Land Tribunal and prohibiting the granting of injunction and appointment of receiver have no retrospective operation and are inapplicable to suits and proceedings instituted before the coming into force of the Amendment Act. This principle is illustrated by the recent Full Bench decision in AIR. 1970 Andra Pradesh 1. The decision in this Full Bench case turned upon the correct interpretation of S. 56 (1) of the Andhra Pradesh Abolition and Conversion Act 26 of 1948 which provided interdict that when, after an estate is notified, a dispute arises as to (c) who is the lawful riot in any holding, the dispute shall be decided by the Settlement Officer''. The question before the Full Bench was whether S. 56 (1) applies to a case where the dispute contemplated by the section arose before the notification under sub-section 4 of S. 1 was published on 27-1- 1964 and as and from that   date the estate in suit stood transferred to the Government. The suit had been filed on 25-4-1959 and had been decided in plaintiff's favour on 24-1-1962. The appeal was filed in the High Court on 1-3-1962. The notification under sub-section 4 of S. 1 transferring the estate to the Government was published only during the pendency of the appeal on 27-8-64. The Full Bench held that the provisions of S. 56 (1) are not retrospective in operation, in divesting the jurisdiction of the civil court in matters arising before the date when the section came into operation. According to the learned Judges, a dispute will arise only when such a dispute has to be determined by some authority competent to determine it. "Where, however, a dispute in fact arises for adjudication before any of these authorities competent to determine it prior to the estate being notified, it cannot be said that the dispute arises again subsequently at any time". "The language of S. 56 (1) does not lend itself to the interpretation, whether express or implied, that the authorities already seized of a dispute in respect of matters referred to in that sub-section are prohibited from adjudicating thereon". Again Their Lordships say "It is a well established principle that a jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment directed otherwise". The principle had been laid down earlier in another Bench decision of the Madras High Court by Govinda Menon and Chandra Reddy JJL in an unreported case (which is referred to in the Full Bench decision) where their Lordships held that S. 56 of the Abolition Act 26 of 1948 does not affect pending proceedings nor does it take away the rights incidental to the filing of the suit.

Fuddlled Crimination

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

"Men only feel the smart but not the vice........."

"And certain laws by sufferers thought unjust..."

(Imitations of Horace by Alexander Pope)

The law makes provision for the admission of confession in evidence in "Criminal Proceeding" due to its anxiety to catch at the hilt of guilt. The presumption of innocence of an accused is deep rooted in law, that is why it ordains that the proof of guilt must be established "beyond the shadow of reasonable doubt" by permitted and legal means. The whole" frame work of the law of evidence is designed to ensure this legal proof.

The basis of admissibility of confession in "Criminal Proceedings" is that every person is the best guard of his own interests and therefore any statement made by a person against himself must contain truth. This is the reason why courts hold the view that a voluntary confession is best proof of guilt.

The Indian Evidence Act in S. 24 declares that a confession caused by inducement, threat or promise from person in authority and having reference to the charge against the accused is irrelevant in criminal proceedings if it "appears" to the court that the confession was precipitated in any of the aforesaid forbidden modes. The word "appears" gives the scope for judicial discretion in determining the voluntary nature of a confession. The quantum of proof evidencing inducement is lesser and it is brought forth in Re Ahmad AIR. (37) 1950 Mysore where their Lordships Ramayya and Mallappa observed: "S. 24 does not conte­mplate such strict proof as required by S. 3 for holding that a confession was caused by inducement, threat. Or promise". The same note is struck in a Calcutta Case Emperor v. Thakurdas Mala (ILR. 1943-1 Cal-467) holding "it is not necessary that it should be proved that the confession was brought about by improper inducement. It is quite sufficient if the circumstances are placed before the Court which would make it appear that the confession was so induced". These rulings are sufficient to indicate the caution with which a court would admit a confession in evidence. As a correlative of this principle the burden of proving that a confession is voluntary is saddled on the prosecution. S. 164 Clause 3 of the "Code of Criminal Procedure" while prescribing the mode of recording confession by a Magistrate makes it imperative that the Magistrate should have ''reason to believe" that the accused made the confession voluntarily. This prin­ciple is expressed by saying "it is only when an accused person speaks with animus confident that his utterance becomes a confession" page 152, Principles and Digest of the Law of Evidence by M. Monir. The Indian Penal Code while defining "reason to believe" says "a person is said to have reason to believe a thing if he has sufficient cause to believe that thing but not otherwise".

Various types of inducements used to eke out confessional statements are mentioned in the books but we are concerned with the specific case of inducement caused by supply of intoxicants to the accused and it is difficult to hold the view that a drunken confession could be admitted in evidence even if the liquor was administered to the accused without reference to the charge, Taylor in his "A Treatise on the Law of Evidence" 2nd Edition at Page 595 mentions the case of R. v. Spilsbury—7c—P.187 saying that a confession is admissible even if the prisoner is made drunk since the administration of liquor may not have any reference to the charge. In this connection it is pertinent to refer to "A treatise on the System of Evidence in Trials at Common law" Vol. I by Prof. Wig more at Page 922 where he observes "notice here, first that a confession in the language of Lord Hale is a conviction or in Sergant Hawkin's phrase "the highest conviction that can be made".

I do not think that we can with propriety make any discrimination between cases of liquor inducement made with or without reference to the charge. The modern development in mental science has revealed that the pronounced effect of alcohol is the lifting of the curtain of inhibition in man so much so his voluntary act of inhibiting a thing is struck at the root. In this circumstance how can we say that the confession of a drunk accused is voluntary simply because the inducement of drink was made without reference to the charge. It follows therefore that we cannot fix any hard and fast rule on the point. "Roscoe's Criminal Evidence" 15th Edition Page 41 treating of inducement of a temporal nature reveals "on this point there are but few authorities". Sexton in 1882 said "if you will give me a glass of gin I will tell you all about it" and the glass of gin was given to him. He then made the confession which Best J. refused to admit in evidence. Thus the pivot of a confessional statement is its voluntariness which is well illustrated by Phipson in his work on Evidence 8th Edition Page 249 explaining the principle to the effect that the voluntary act of confessing a crime is a "willful' act. When we examine the willfulness in the confession of a drunken accused we appreciate the fallacy of the strict interpretation of law on confession with the legal quibble that liquor offered to an accused without reference to the charge against him is productive of a blemish less confession. It may be mentioned that all other modes of inducement do allow the accused to use his intelligence to succumb to it or not but inducement by liquor stands on a different footing since liquor banished the reason of the accused. Let us cast an eye on Muslim Law on this matter. Principles of Mohammedan Jurisprudence by Abdur Rahim Page 362 reads "an admission must however be unconditional and it must be voluntary so that if obtained by coercion it is not binding nor if made in jest". I am more concerned with the terminal portion of the lines quoted. The drunken accused may even speak in a tone of jest and the Magistrate might not feel it as planted emotion. He may not find visible facial expression of fear in the accused but none-the-less the accused is incapacitated by the drink to appreciate what he speakes and its real consequence since his inhibition is wiped away by alcohol.

"The General Hindu Jurisprudence^” (Tagore Law Lecturers) by Priyanath Sen treating of the adjectival law on Page 373 observes 'A decision obtained by fraud, or force is liable to be vacated on proof that it was so obtained so also a litigation against a person not in sound state of mind by reason of intoxica­tion is void and is to be annulled."

To conclude it suffices to say that the state of law regarding inducement by liquor to confess as it exists today is liable to destroy the safety of an accused in a criminal trial lam of the opinion that legislative interference should take place to enable the medical examination of an accused including his blood test to appraise the quantum of alcohol in him with reference to his liquor tolerance prior to the recording of his confession by a Magistrate. This will avert unknowing injustice at the hands of judicial officers and at the same time give more moral support to a conviction by him. This will be a practical devise ensuring the safety of the prisoner at the dock and stability of judicial integrity. That is why Prof. G. D. Nokes of the University of London says "an admission must be a conscious act and if it is not it will have very little weight. The effect of anesthetics and drugs remain to be decided in England" 'An Introduction to Evidence' 2nd Edition Page 262.

The curt utterance of Justice Harlan Stone "The law itself is on trial in every case as well as the cause before it" (Barness and Teetters in their "New Horizons in Criminology") is most applicable to this state of Law of Evidence touching inducement of a temporal nature leading to confession of guilt, by the drunken accused 

EMINENT DOMAIN AND INDIAN CONSTITUTION

(N. Dharmadan, B. Sc, M. L., Advocate, Ernakulam)

The term 'Eminent Domain' is rather a literal translation of "Dominium eminens" the meaning of which simply stated is the power vested in the State to take private, property for public use. This power has been otherwise referred to as an element of sovereign or "summa Potestas". The genesis of this doctrine is ascribed to Hugo Grotius who in 1625 observed in his classical work "De Jure Bella at pads" as follows: "The property of subjects is under one eminent domain of the state so that the state or he who acts for it may use and even alienate and destroy such property not only in the case of extreme necessity in which even private persons have a right over the property of others but for ends of public utility to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that where this is done the state is bound to make good the loss to those who lose their property". As an attribute of its sovereignty every state has a power to acquire or requisition private property compulsorily for public necessity. This is an original right like the power of taxation and it is now a crucial part of constitutional law of every modern constitution. The common law of England recognized this right quite early. The crown could affect compulsory purchase or acquire property in exercise of the prerogative power & later this was made absolute by statute. In the United States of America, the Federal Govt, can take private property for public purpose on condition of payment of just compensation and similar power is also conferred on the State Governments. The taking of private property without payment of compensation by the Federal Government is forbidden under Fifth Amendment and by the State Government under the guarantee of the 'due process' clause of Fourteenth Amendment.

In India, the ambit of this doctrine was first defined in our Constitution in 1950, but later it had to be re-defined by constitutional amendments Our Constitution recognizes the power of the State to deprive a person of his property as a power distinct from other powers of deprivation of private owner of his property viz., the power of taxation and power of forfeiture etc. The general power of deprivation is exercisable subject to the condition of legal sanction and in the modern constitutional phraseology it is known as 'police power’. Therefore the power of deprivation is sub divided into two heads: (1) general power of deprivation of property, which is dealt with in Article 31 clauses (i) and (ii) deprivation in exercise of power of eminent domain contained in Articles 31 Clauses (2) to (6), 31 A, 31B and 9th Schedule to Constitution. The scope of the power of deprivation was a matter of controversy in the early years. The wide scope of the State's power dependent on the bifurcation of constitutional provisions embodied in clauses (1) and (2) of Article 31 was not very clear. Hence the Supreme Court did not accept the general power of deprivation in the first Sholapur Case AIR. 1951 SC. 41" The contention that clause (1) of Article 31 dealt with modes of deprivation of property by the State exclusive of that of "eminent domain" was rejected by the majority opinion in that case. But Das J. delivering dissent held that this interpretation of cl. (1) of Article 31 would make it redundant and would exclude the possibility of deprivation of property otherwise than by acquisition or taking possession of property. He observed that the scope of clause (1) was wider than that of clause (2) for the former enunciates the general provision that no person shall be deprived of his property save by authority of law and the latter lays down that deprivation of property can only be made under law on payment of compensation and for public purposes. This dissenting view was not again accepted by the Supreme Court in the second Sholapur case AIR 1954 SC 119. The Supreme Court reiterated the narrow view that Article 31 was a self contained provision exclusively dealing with the power of eminent domain and hence the clauses (1) and (2) could not be read mutually exclusive. They are only two components of the same concept. Clause (1) sets the first condition viz., no one would be deprived of his property by an executive action. Clause (2) makes provision for the further two conditions that deprivation of property could be exercised for public purpose and this could be brought about only subject to the condition of payment of compensation. This narrow construction of Article 31 had a damaging effect on the land reforms legislation. It over burdened the States with duty of paying just and adequate compensation even in cases in which the State neither acquired any property nor requisitioned it. Say for example there is the requirement of payment of compensation even if possession of a textile factory is taken over for the purpose of merely improving its management or even in cases where land is taken over for reclamation alone.

It is to get over these difficulties created on account of the strained structural construction of the two clauses of Article 31 that the first, fourth and seventeenth Amendments were passed in the years 1951, 1955 and 1964 respectively. Das J.'s liberal interpretation was given statutory recognition and the narrow view regarding the duty of the State for payment of compensation in all cases of subst­antial deprivation of property was abolished. Under the amended provisions the State can deprive a person of his property generally by authority of law under the police power in which case the constitutional requirement of payment of compensation cannot be insisted upon 'and also by the exercise of the power of eminent domain, i.e., the deprivation of property for some public purpose subject to statutory provision for payment or determination of compensation. The legislature fixes the quantum of the compensation or the principles governing the payment of compensation. Thus the amendments made the legislation for these purposes immune from challenge on the ground of violation of any fundamental right and also entrenched it by enlistment in the ninth-schedule. But the present position is very strange. Though the impediments before the State's right to regulate property rights for public purpose were successively removed by the first, fourth and seventeenth Amendments the latest pronouncement of the Supreme Court in the Golak Nath Case AIR. 1967 SC. 1643 has taken away the right to make a law Ninth Schedule statute in future with effect from 27th February.1967.

DAMAGES AND GINGER BEER

(T. G. John, Advocate, Trichur)

There is nothing spreeish, crass, or scurrilous in a person stepping into a wayside cafeteria or a provision, store on a hot, stuffy evening and ordering for a bottle of ginger beer. And as he sits on the wire-legged stool watching the waiter dip the bottle and pour out for him the drink that will quench his thirst, and cheer him but not inebriate, he does not care two hoots whether, that particular bottle is opaque or otherwise. However things did not move so smoothly years ago, somewhere in England when a similar bottle of ginger beer was ordered for. For to the utter horror of the customer it was found in the bottle, couched in the lees of the drink the decomposed remains of a snail. From that moment began a controversy which consummated in the celebrated case Donoghue v. Stevenson (M'Alister v. Stevenson) or more familiarly known as the snail-in-the-bottle case, which is an important landmark in the history of English law of damages and incidentally on the question whether an action lies for nervous shock and if so under what circumstances.

Taking a cursory glance at the English authorities on this branch of law, one of the earliest cases is Victorian Railways Commissioners v. Coultas (1888). In that case the buggy of the plaintiffs, a husband and wife, was nearly but not quite run over by a passing train at a level crossing and it was held that the resulting shock and illness was damage which was too remote and hence not recoverable. The above Privy Council decision contains the following dictum: "In every case where an accident caused by negligence had given a person a serious nervous shock, there might be a claim for damages on account of mental injury. The difficulty which now often exists in case of alleged physical injuries of determining whether they were caused by the negligent act would be greatly increased and a wide field opened for imaginary claims". The reasoning seems to be that if one were to arrive at a different conclusion it will open wide the gates of imaginary claims and frivolous litigations.

The view which was not popular even in England gradually gave way by the pronouncement of Kennedy J. in Dulieu v. White & Sons (1901). The plaintiff who was in the family way was behind the bar of her husband's public house. The defendants by their servants negligently drove a horse carriage into the public house and the plaintiff prematurely gave birth to a child and became ill also. Kennedy. J. laid down two propositions, which as stated by Mr. K. Venkoba Rao in "Conundrum presented by shock cases", have become the starting point for discussions on the subject namely that unless the plaintiff is within the area of physical danger, he cannot recover damages for nervous shock and secondly .if a man is killed by the negligence of the defendants in sight of plaintiff and the plaintiff becomes ill, the damage is too remote a consequence of the negligence.

The case of Hambrook v. Siok.s Brothers (1925) is the next important step in the tumultuous march of English case law in this subject. The defendants' servant left a motor lorry at the top of a steep and narrow street u--attended with the engine running and without taking proper precautions to secure it. The lorry started off by itself and ran violently down the incline. Plaintiff's wife who had been walking up the street with her children had left them a little below a point where the street made a bond when she saw the lorry rushing down the bend towards her. She became frightened for the safety of her children whom she knew must have met the lorry in its course. A bystander informed her that a child answering to the description of one of hers had been injured. In consequence of her fright and anxiety, she suffered a nervous shock which eventually caused her death. The action was filed by her husband under the Fatal Accident Act. Bankes and Atkin L. JJ. (Sargant L. J. dissenting) held that on the assumption that shock was caused by what the woman saw with her own eyes as distinguished from what she was told by the bystanders, she was entitled to recover notwithstanding that the shock was brought by fear for her children's safety and not by fear for her own. Atkin L. J. made the following observation; "The legal effects of injury by shock have undoubtedly develop ed in the last 30 or 40 years. At one time the theory was held that damages at law could not be proved in respect of personal injuries, unless there was some injury which was variously called 'bodily' or 'physical' but which necessarily excluded an injury which was only 'mental'. There can be no doubt, at the present day, that this theory is wrong."

Chronologically, in the chain of English Shock Cases, Donoghue v. Stevensun (1932) fits in here. "In that case a manufacturer or ginger beer sold his ginger beer in opaque bottles. A snail had crept into one of the bottles which the manufacturer filled and corked up without noticing the presence of the snail which could not be seen as the bot*le was opaque. It was held that the manufacturer was liable for the injury caused to the retailer's customer who ultimately drank, the contents of the bottle". (Facts as digested in Halsbury's Laws of England, Second Edition, Volume 10). The plaintiff in this case suffered from shock and gastroenteritis. In a suit by the plaintiff to recover damages it was held that the defendants were liable.

The two important pronouncements of the post-Donoghue period are Hay v. Young (1943) and King v. Philips (1953) I All E. Reports 617. In the former case a woman who was in the family way suffered from fright and shock on account of notice produced by the collision between a motor cycle and a motor car. A month later she delivered a still born child In as much as she did not see the accident, standing about 45 feet from the point of impact and she being not within the area of potential danger and the duty of the motor cyclist being to drive with such reasonable care as would avoid risk of injury to such persons as he could reasonably foresee, the House of Lords held that she was not entitled to recover In King v. Philips (1953) a taxi driver negligently backed his cab without looking where he was going and ran into a small boy on a tricycle. His mother who was in her house seventy or eighty yards away, heard him scream and looking out of the window, saw his peril. She suffered nervous shock. It was held that the shock was too remote to be ahead of damage. "The court of appeal affirming the decision of Mc. Nair J, held that the defendant was under no liability to the mother. Singleton L. J. approved of the observations of Atkin, L. J, in Hambrook y. Stokes but he thought that the case was distinguishable because there the mother was on the highway and not up a side street as in the present case. Denning L. J thought that Hambrook v. Stokes was not overruled by Hay v- Young and that the two decisions should be reconciled. The learned Lord Justice distinguished Hambrook v. Stokes on the ground that the slow backing of the taxicab was very different from the terrifying descent of the runaway lorry. The taxi cab driver could not reasonably be expected to have foreseen that his backing would terrify a mother 70 yards away whereas the lorry driver ought to have foreseen that a runaway lorry might seriously shock the mother of children in the danger area. Denning L. J., summed up the effect of care law on the subject thus: Wife or mother who suffers shock on being told of an accident to a loved one cannot recover damages from the negligent party on that account. Nor can a bystander who suffers shock by witnessing an accident from a safe distance. But if the bystander is a mother who suffers from shock by hearing or seeing with her own unaided senses that her child is in peril that she may be able to recover from the negligent party even though she was in no personal danger herself. Hodson L. J, rested his decision on the ground that in the absence of admission of negligence in Hambrook v. Stockes, Lord Thankorten, would not have approved of it in Hay v. Young (Venkoba Rao-Coundrum presented by Shock Cases).

The Indian Case-Law on the point is very sparse and sporadic. In Governor-General in Council v. Surajmal Esarka (A. I. R. 1949Nagpur 256) there was a very minor accident on the railway; a sentinel coach in which the plaintiff was travelling callided with a stationary goods train. Ail that occurred was that the cow-catcher of the coach got entangled with the couplings of the last wagon of the goods trian and was slightly broken. The plaintiff's eye and thigh were bruised and he had a slight scratch on the right foot. Bose J. observed: "Now it may be conceded that a person of normal fortitude might suffer slightly from shock in these circumstances. Now as far as the general damages go we are not able to interfere because mental pain and so forth are not matters which can be gauged in terms of money or money’s worth. We concede that the circumstances are such that a normal man might suffer from a slight temporary shock. He would be entitled for compensation for such suffering. What that should be is a matter on which men will differ widely. Accordingly following the usual practice we do not intend to interfere". Earlier after referring to Victorian Railways Commissioners v. Coultas His Lordship observed:" even if we do not apply the restricted rule laid down by Their Lordships we decline to open wide the flood gates to special and exceptional cases, many of which rest on the border line of the imaginary . The law and particularly a law of this kind must be founded on firm commonsense where ordinary reasonable men, with normal healthy constitutions and of normal fortitude and courage deal with each other".

The next noteworthy case is Mrs. Halliguav. Mohansundaram (1951, II M. L. J. 47l). The plaintiff and her husband who is a well to do merchant and landlord at Cochin and belonging to the community of Cochin Jews came on a four day visit to Madras They engaged the first defendant's taxi and the taxi driver after driving to the Caltex petrol bunk next to Messrs Lawrence and Maye, Ltd. on the Mount Road and after filling up the petrol was crossing the road to Bosoitos when a tram car proceeding towards the Mylapore side collided with the taxi and smashed up the front portion of the car. Mrs. Halligua immediately after collision was seized by what appears to have been a very severe pain in her arms and hands. It was only after a period of five months that she was able to use her arms and ringers. Even then she was unable to bend her right little finger which according to medical evidence was likely to be a permanent deformity. In an action laid by the plaintiff against the taxi owner who in his turn impleaded the Insurance Company as second defendant, for damages for bodily injury, pain and mental shock the defendants were held liable. Mack J. after referring to the view of Atkin L.J. in Hambrook v. Stokes Brothers observes: "With great respect I have no hesitation in following the view of Atkin, L.J................I fully appreciate the difficulty in estimating^; damages claimed by reason of shock............It is not possible to lay down any hard and fast rule and each case has to be dealt with on its own merits. I think the trend of English Case law having exploded the old view that damages cannot be claimed on the basis of nervous shock attributable to negligence, Indian Case Law based on old English decisions should in this domain of law have a similar orientation".

For a judicious summing up of Indian Case Law on this point we have yet to wait and see the march-past of judicial consensus for some more time.

HER HOARY MAJESTY-- THE LAW

(T. G. John, Advocate, Trichur)

Law it is said, is a very proud and jealous mistress. While she sweeps aside with a jerk and a caution those romping, roving and rapacious Don Juans and Casanovas who oggle ravenously at her, she is bountiful and nurtures with due alacrity those who approach her in the right royal way. Here is a domain not for bally ragging rapscallions but for the gentle and the bashful who woo her ardently with a song in their hearts. She is never pugnacious but always pulsates with cherubic enthusiasm scintillating an' aura of peace and goodwill wherever she goes. Her creed -- to set right wrongs done to others. And today while she ruminates over the past chiliads of years, she can only smile with some reticence even at King Solomon in all his glory attempting to solve a complicated question of disputed parentage by a 'simple and sure' child-cutting farce, as only a faddish fantasy of yesterday.

There is however one solitary instance which looms large before us where Her Majesty played a double game with one of her most passionate and illustrious suitors. Himself a bad and despicable character, his very name gives a jolt to the whole of humanity even today. In a mad endeavour to save the Majesty of Law, he had to 'wash his hands' without water. The man is Pontius Pilate, Pontius Pilate was a great jurist. He was a bad character but he knew the law of the land. "Lord Shaw of Dunfermline, in a remarkable study of the Trial of Jesus Christ, has sketched how the Sanhedrin flouted the Jewish traditions of a fair trial, since embodied in the Talmud. Under that law-as in ours-an accused person could not be condemned out of his own mouth. But this salutory safeguard was ignored and Jesus was questioned by his accusers and on his answers they pronounced him guilty-when he was no. However the Sanhe­drin could not pass sentence of death and they remitted the case to Pilate, the Roman Governor. Pilate had a bad record but he knew his law. He saw that the trial was riddled with irregularities illegal arrest, trial by night and inadmissible evidence. All that was obnoxious to the Hebrew Law and jurisprudence-of Rome. A defiant mob was at his gates, clamouring for the blood of Jesus, but Pilate had no hesitations whatsoever. He quashed the proceedings. At that moment he upheld the Majesty of Law and vindicated the right of the subject to its protection" (Naga Rajan -- Norton Endowment Lecture).

The rest of the story is briefly told. Jesus Christ on the crucifix pleaded for a general amnesty for all those who were involved in his trial and crucifixion because, they 'knew not what they were doing'. In quashing the proceedings and at the same time "washing his hands" and leaving Jesus to an infuriated mob it could never be said that Pilate did not know the full implication of what he was doing. That is why pious Christians even today believe that Pilate was never a beneficiary of the general amnesty pleaded for by Jesus on the Cross. The great sequel is that Pontius Pilate lost heaven because he was a great jurist.