THE BAR OF RENT CONTROL PROCEEDINGS BY THE

KERALA ACT 1 OF 1957

(By M. Karumharan Nambiar, B.Com. B.L., Advocate, Cannanore)

The learned article by Mr. K. E. Gopinath under the above caption discusses the circumstances under which a petition under S. 7 of the Madras Buildings Lease and Rent Control Act for the eviction of a tenant from a building which is a hut is liable to be stayed under S. 5 of Act 1 of 1957, not S. 4 as pointed out erroneously in the article.

The bar under S. 5 of Act I of 1957 is against eviction of a kudikidap-pukaran from his kudiyirippu. This leads us to the question who is a Kudikidap-pukaran. 'Kudikidappukaran' has been defined in Travancore-Cochin Prevention of Eviction of Kudikidappukars Act (XIII of 1950) as "a person who has no homestead or land of his own to erect a homestead and has been permitted by an owner of a land to have the use and occupation of a portion of the 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......". Act 1of 1957 defines a Kudikidappukaran as "a Kudikidappukaran as defined in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act 1955 and includes any person in occupation of a hut (whether constructed by him or not) in any portion of a land belonging to and in the possession of another and who has been permitted by the latter to occupy that hut, bat has no interest in that land......" It is clear that Act 1 of 1955 has extended the ambit of the definition to include a person in occupation of a hut whether the hut was constructed by him or not. Under the definition in Act 1 of 1955 we have two classes of Kudikidappukaran, one the Kudikidappukaran as defined in Act XIII of 1955, who is a person who has constructed the hut iff his occupation, and the other, the Kudikidappukaran, ulkudidar of Malabar, who is a person in occupation of a hut whether constructed by him or not- A kudikidappukaran of Act XIII of 1955 can only be a person who has constructed the hut himself, a Kudikidappukaran of Act 1 of 1957 need not be one such.

The present amended Act 30 of 1958 has incorporated the definition of Kudikidappukaran in Act XIII of 1955 in a separate clause as clause 1 of S. 3 and clause 2 of S.3 is an improvement on the latter half of the definition of kudi­kidappukaran in Act 1 of 1957 in as much as it makes clear that the hut in question is one constructed by the person owning and possessing the land in which the hut is situated.

The conclusion of Mr, K. E. Gopinath that a kudiyirippu in relation to which eviction proceedings ought to be stayed is only one which has been built or constructed by the Kudikidappukaran is absolutely unwarranted and that conclusion is solely based on the definition of Kudikidappukaran as defined in Act XIII of 1955 which has been modified and the feelings of discomfort and haplessness expressed by Mr. K E. Gopinath over the definition of the word 'hut' are the logical outcome of this misapprehension.

Therefore the point now to be considered when the question of stay of a petition under S. 7 of the Madras Act for the eviction of a building is raised is whether it is ''a dwelling house which has a value not exceeding Four Hundred Rupees" and whether the person who is sought to be evicted has no homestead or land of his own to erect a homestead If these conditions are satisfied the petition under S. 7 has to be stayed under Act 1 of 1957, irrespective of other considerations

BAR OF RENT CONTROL PROCEEDINGS BY THE KERALA

ACT I OF 1957

(By K. S. Nambiar, Advocate, Trichur)

An article titled as "Bar of Rent Control Proceedings by the Kerala Act 1 of 1957" appeared in the K.L.T. dated 16-6-1958. In that article the scope and extent of the saving provision Sec 3, cl. (c) of Act 1 of 1957 have been discussed According to the article ''any 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 Act 1 of 1957". According to me that view is not correct

A careful reading of the relevant provisions of the Act 1 of 1957 will lead one only to one irresistible conclusion and that is a rented building coming within the definitions of the terms hut and kudiyiruppu within the meaning of the Act is hit by it, irrespective of the fact whether the building is constructed by the landlord or the tenant.

The saving clause S. 3, sub-cl. (c) of the Act which takes the rented buildings out of the purview of the Act, by the explanation added to it makes the saving provision under it inapplicable to a hut which is a kudiyiruppu. The explanation reads as follows:

"For the purpose of this clause a hut which is a kudiyiruppu shall be deemed to be a building".

By the explanation it will be found that a building will come within the ambit of Act 1 of 1957 if the following conditions are satisfied.

(1) The building must be a hut within the meaning of S. 2, sub-cl. (2) of the Act 1 of 1957.

(2)The building must be a kudiyiruppu.

The word 'hut' has been defined as a "building which is principally made of wood, mud, leaves, grass or thatch". A "Kudikidappukaran" has been defined as follows, under S. 2, cl (3) of the Act 1 of 1957:-

"Kudikidappukaran means a kudikidappukaran as defined in the Travancore Cochin Prevention of Eviction of Kudikidappukars Act 1955 and includes any person in occupation of a hut (whether constructed by him or not) in any portion of a land belonging to and in the possession of another and who has been permitted by the latter to occupy that hut, but otherwise has no interest in the land.''

Cl. (4) defines "Kudiyiruppu" as follows:

"Kudiyiruppu means a Kudiyiruppu as defined in the Travancore-Cochin Prevention of Eviction of Kudikidappukars Act 1955 and includes a hut occupied by a Kudikidappukaran."

From these two definitions it will be clear that definition of ''Kudiyiruppu" and "Kudikidappukaran" in the Kerala Act 1 of 1957 and the Travancore-Cochin Act are not the same. The article in KLT dated 16-6-1958, it seems, does not advert to this fact. The scope of the definition of the terms Kudikidappukaran and Kudiyiruppu has been amplified in the Kerala Act so as to take in huts also irrespective of the fact whether it was constructed by the tenant or not, by which something more is added to the Travancore-Cochin definitions.

The words "hut (whether constructed by him or not)" definitely suggest that a hut to be a kudiyiruppu need not belong to the tenant. Even if it is constructed by the landlord it will be a kudiyiruppu within the meaning of the Act. The intention of the Legislature was to give absolute protection from eviction proceedings under the Act to those people who are in occupation of huts. The explanation to S. 3 cl (c) was added in the light of the definitions of the terms 'Kudikidappukaran' and 'Kudiyiruppu' contained in S. 2 of the Act 1 of 1957. From the foregoing brief discussion it will be clear that a building which is a hut within the meaning of the Act 1 of 1957 irrespective of the fact whether it was constructed by the tenant or not will be brought within the staying provisions of the Act 1 of' 57 if it satisfies the other conditions of a Kudiyiruppu. The fact that the "hut" is constructed by the tenant or landlord is of no significance in the face of the definite provisions in the Act 1 of 1957. So it is not correct to say that any building, even in the case of its being a hut, belonging to the landlord is not hit by the staying provisions of the Act.

LEGAL FANTASIA

(T. G. John, Advocate, Trichur)

There is a popular gibe on the continent, with a tinge of lambent humour that the hardest religious vow which a Parisian spinster in the teeth of dire misfortune will take, is that she will marry and be faithful to her husband for the first year of their married life. Against a background of casinoes, night clubs, mink coats, silk shantung sacks and other crazes of fashionable Paris, she has solemnly undertaken to do almost the impossible. Nevertheless, the infidel wife of France is punishable under French law for adultery. But coming to our own country the land of rope-tricks and Sathyagrahas, it is curious that the infidel wife is not punished as an abettor "It would be more consonant with Indian ideas if the woman also were punished for adultery. Manu has provided punishment for her and in France and in China she is punished." Adultery figures in the penal law of many nations and some of the most celebrated English lawyers have considered its omission from the English law as a defect. 

This carnal sin of adultery has again struck the head-lines in Great Britain. Scotsman Ronald MacLennan and his wife Margaret a professional ice-skater, separated in 1954. Margaret crossed the Atlantic to live in Brooklyn, where, more than a year later, she gave birth to a daughter. In Scotland, Ronald laid a suit for divorce, charging that she must have committed adultery. Margaret's reply: the baby was the result of artificial insemination. Her husband answered that even if this were true he had never agreed to her adopting such a course.

Was such an act adultery? A sin or a triumph of science? These questions were exercising the best legal, religious and journalistic minds of Britain. Hearing MacLennan's suit, Lord Wheatley, a Roman Catholic Judge of Scotland's Court of Session, listened to the argument of MacLennan's lawyer that the real essence of adultery is not how it is accomplished but "the surrender of a woman's reproductive organs to another man". Commented Lord Wheatley: "Of course, it is not another man, but a test tube. She does not know who the man is. How can you have intercourse with only one person present?" In his preliminary ruling the Judge noted: ''The idea that adultery might be committed by a woman alone in the privacy of her bed-room is one with which earlier Jurists had no occasion to wrestle", concluded that it did not constitute "adultery in its legal meaning".

Lord Wheatley's ruling raised more questions than it settled. Father Paul Crane, a Roman Catholic spokesman declared: "Human beings are not cattle to be bred by test tubes. Only a pagan world would treat them as such". Britain's popular press disagreed, argued that artificial insemination could bring comfort to women previously unable to conceive. Dr. Geoffrey Fisher, Archbishop of Canterbury, addressed the synod of the convocation of Canterbury on the issue. Whether or not artificial insemination by donor was legally held to be a crime or not, he said it was a sin in the eyes of the church. "It is something far less responsible and far less human than adultery", he asserted "It violates the exclusive union set up between husband and wife. It defrauds the child begotten and deceives both his putative kinsmen and society at large."

As for Mr. MacLennan, the Archbishop added: "On the facts of this case some legislation would seem to be inevitable. If the law gives him a remedy against adultery by his wife, it can hardly deny him a remedy against his wife if she bears into his family a child born out of wedlock and without his knowledge". (Time, Jan. 27, 1958).

GLEANINGS AND RAMBLINGS

(K.K. Sreedharan, B. Sc, B. L., Mavelikara)

With the most modest and sincere excuses for adopting this title which has found its place in some of the previous pages of this journal, I would try to tender the following few facts which really captivate the attraction of even an ordinary spectator in the profession. The writer would be greatly gratified if these lines are capable of successfully supplementing the original article under the title (1957 K. L. T. 73-75).

The point is beyond even the tinge of a doubt that the recent past has due to cyclonic channels of thought in spheres of law, politics and sociology mainly, produced a torrent of legislation which has left afloat manifold novel notions substantially transforming the foundations of law in many a field. True it is that in order to seek out the pearls of truth and justice among the deep wilderness as it seems of the realm of laws, many a naughty knot has to be untied and nobody can deny that the pressing necessity for extremely intimate and sincere cooperation between the Bench and the Bar in their joint quest of the illustrious treasure of justice is manifestly self-evident. Not only the lawyer, legislator and Judge but humanity in general it must be admitted stand on the verge of a transition and the need for adaptation to environments which is the essence of success is undeniable. But, can we say that the buoyancy of this transition has not already made its practical repercussions on the already existing relation between the lawyer and the Judge in the conduct of legal business? To my humble self, it seems that a remarkably ostentatious transformation has already settled in and as matters stand at present there is greatly existent the melody of the harmonious march of the Bench and the Bar hand in hand. The extreme formalities of humility, caution and distant respect which a counsel was wont to exhibit before the Bench is now no more than an indistinct, evanescent vision of the distant past. To realise the real existence of this harmony we must for a moment think of the extent and character of the cooperation and cordiality expected to exist as between the two and the practical scope and intent of Lord Lindhursts ''gentlemanliness" which he opines to be the most praiseworthy attribute of a Judge, even overriding good knowledge of law.

What really and in essence is this cooperation? What cooperation does the lawyer, the high priest before the temple of Justice expect of the Judge, the presiding deity? Is it a smiling face and exhibition of pleasant sentiments or dancing to his tune cajoled by his etherial eloquence, apparent fervour or coaxing demeanour? We would all unanimously agree in the negative. Does the austerity on the countenance of the poor Judge imply any want of cooperation? Nay, not in the least. We have only to give a moment's thought to comprehend the real position. The duties, nature and course of business of the Bar and the Bench are unmistakably diverse and practically divergent. Bubbling with enthusiasm to bring home to the Judge his standpoint, aided by blessed advocacy to array the facts and interpret the laws in support of his cause, swayed by the ardency of the profession, enamoured of success in his engagement, the lawyer on either side gives the most emphatic & impressive expression to his ideas, inevitably indulging in a little extravagance & endowing his case with dexterous and to some degree artificial colour and flavour. It is only too natural that, in spite of ordinary caution and diligence, the Judge at the consummation of the arguments on both sides finds himself fetched far away from the root of the case. It is for him to separate the grain from the chaff, digesting the complicated stuff as the case proceeds, duly exercising his best intellectual gifts in the meanwhile. Considering this severe aspect of the affair, it would be a more charitable and gentlemanly construction on our behalf to assimilate the gravity of the Judge's countenance to serenity rather than interpret it as inhumanity or lugubriousness and exhibition of non-cooperation.

The real and essential cooperation between the Bar and the Bench is born exactly at the point where advocacy and justice meet. Sincerity must be the life and soul of every enterprise. And so it is with the work of the Judge also. Sincerity here means the bold and unflinching tenacity of adherence to the belief which he had been able to conjure up before his inner eye, unperturbed by the influence of any individual prejudices or considerations which circumstances and surroundings have precipitated in his way.

It is not infrequent now-a-days that some of the younger generation of our lawyers either inadvertently or intentionally indulge themselves in the catastrophe of identifying themselves with the bench as though in compensation for their extricating themselves from the often impeached fault of identification with the party which has been vehemently protested against by the legal world. It may well be noted that the former is the graver offence against the sworn duties of a member of the bar, imposing upon the Bench erroneous suggestions creating unwholesome prejudices, not to speak of the unwelcome impressions which they might generate in the co-workers and parties in general. Such on authorised transgressions and trespasses into the Judges estate are naturally liable to be prevented by mild injunctions and repremands on the part of the party aggrieved. It is our duty to forget and forgive such reformatory reproof rather than endorse on it the colour of inhumanity or want of cooperation.

We must not forget that, groundless as the charge may be, many a presiding officer throws the blame of meagre disposals on the non-cooperation of the Bar. To whatever diverse other reasons it may be attributed, it is our duty to see that we partake not of the fault. In this era of general awakening, when reduction of litigation is one of the primary motives of all channels of political thought, it is a shame to the bar -- the bed of all well founded thought & leadership, the reins of all revolution and reformations, the mouthpiece of all cry for justice & humanity -- to stand in the way of achieving such ends, merely actuated by the trifling desire for individual advancement. Let us fully extricate ourselves from this undeserved charge. We will endeavour our best to bring about a just and speedy end to all pending litigation lending the warmest co-operation with the Judges whose sincerity we will put to the touchstone.

THE KERALA AGRARIAN RELATIONS BILL, 1957

(Memorandum by Kerala Advocates' Association)

The Kerala Agrarian Relations Bill, 1957 envisages a very important piece of legislation with momentous impacts on the economic, social and cultural life of Kerala. Throughout the long centuries that have rolled on in the known history of Kerala, land has been the most cherished form of property and probably the most significant institution of Kerala national life. Therefore the members of this Association conceive it to be a paramount and inescapable duty to make their own contribution to the shaping of the proposed legislation.

2. The Association as representing the legal profession in the State has absolutely no vested interests in the subject-matter of land; and this report is entirely free of any political, partisan or sectarian views. While we appreciate the attempt of the State Government to initiate a progressive land legislation, so essential for the makeup of the welfare State conceived by our Constitution, we should at the same time sound a note of warning and point our fingers at the writing on the wall that elementary principles of economic and social justice and man's fundamental rights should not be ignored, And may we add in all humility that this warning comes from a profession which by its long and arduous experience in courts of justice is all too familiar with individual misery and national calamities associated with ill-conceived legislation.

3. The Association decided at its meeting held on 31-1-1958 to appoint a small committee consisting of leading lawyers of the State to consider the Bill. The Committee held several meetings to consider the provisions of the Bill and drafted a memorandum to be placed before the general body of the Association. The Association after considering the Memorandum on 19-2-1958 adopted it and decided to submit the same to the Government and place it before the public.

4. In this memorandum, as is only proper, the association has not gone into details and has only dealt with the broader aspects and the fundamentals involved.

MEMORANDUM

From the nomenclature of the Bill one would expect that it is one intended to regulate the relationship of landlord and tenant. But a scrutiny of the provisions of the Bill would disclose that it is one which is expropriatory in character having as its effect the liquidation of the present land-owning classes in Kerala and the creation in their stead of a new set of landowners. In the guise of fixing ceiling on lands and giving fixity of tenure to the tenants, the bill practically deprives the present landowning classes of all their property without any fair or reasonable compensation with the result that they would be thrown into the streets without any means of livelihood and they would become a menace to peace and order in the State. The Bill has the effect of making co­-existence for the various classes in Kerala impossible and depriving certain classes of all means of existence. The definition of permanent tenant is so wide and comprehensive as to include all classes of tenants in Kerala and they would all become the owners of land on the peasants' day as envisaged in the bill and the present landowning classes will cease to have any interest in the land. The provision for-resumption is framed in such a way as to exclude the possibility for even small landowners to resume lands for their own personal cultivation.

2. It is said that the Bill implements the recommendations of the Plan­ning Commission which have as their main object the increase in production. On an examination of the provisions of the Bill we have come to the conclusion that far from increasing food production, the Bill, if enacted into law, will have just the opposite effect of decreasing the productivity of the land and of the lands themselves lying fallow for some years. The Bill will also have deleteriuos consequences in the economy of the State as the large number of Banking Institutions and Chitties which are a special feature of the State of Kerala will be seriously affected by the provisions of the Bill. It is well known that the numerous Banks in Kerala including Land Mortgage Banks advance money on the security of landed property and as it is undoubted that the value of lands will fall on account of the provisions of the Bill, many of the Banks will have to face serious difficulties and several of them may have to be liquidated. The number of Chitties now run in Kerala will come to several thousands and the security they take for future subscriptions before advancing prize amounts to subscribers is generally landed property and if that security falls in value, there will be serious repercussions throughout .the State which anybody acquainted with the state of things in Kerala can easily foresee. If the persons connected with the numerous banks and chitties in Kerala are faced with financial ruin, rural economy is sure to be upset resulting in social unrest and chaos and the economy of the State itself will be in jeopardy.

3. Ceiling cannot be imposed in Kerala with a view to give land for every agriculturist. It has been estimated that if cultivable land is distributed amongst them, an individual will not get more than 13 cents of land. This extent of land will not satisfy anybody. So ceiling for the purpose of equitable distribution of land is unthinkable in this State which has the highest density of population in the world. Ceiling can be imposed only if it will have the effect of increasing production. We are definitely of opinion that ceiling will retard pro­duction as it will necessarily lead to fragmentation of holdings and as the tenant who becomes the owner will not have the means to improve the land or to cultivate the same in a husband like manner.

4. The main provisions of the Bill deal with --

(i) imposing a coiling on land holdings and getting surrender of excess lands and distribution of them by the State to the landless;

(ii) granting fixity of tenure to tenants, resumption by landowners under certain circumstances and purchase of the landlord's interest and

(iii) fixation of fair rent. We shall consider those subjects seriatim.

5. CEILING, SURRENDER AND DISTRIBUTION.

Many entertain doubts as to the advisability of imposing a ceiling on land alone without placing any restriction on owning and possessing other kinds of property. It is true that we have set before ourselves the goal of a socialistic pattern of society but in the implementation of it we shall have to face very serious difficulties. Any person who bestows thought on the subject would be convinced that it is impossible to create a society the members, whereof are financially in the same state. Gradations of wealth are sure to exist. It is said that even in Soviet Russia there are gradations of wealth as exist in Britain, Germany or France and that at one end of the scale some of the poor people are living ten to a room and at the other end the scientists, statesmen, industrial managers, technocrats, artists, and musicians enjoy the comforts of a house in town and a Villa in the country. If that is the state in Soviet Russia after several years of communist rule, itis only an idle dream to think of a society where no inequality of wealth exists. However that may be, we fail to see the wisdom of imposing a ceiling on landed gentry alone who, it must be remembered, form the backbone of the Society in every country and set the tone for the entire population. The imposing of a ceiling on land alone will reduce the landed gentry to an inferior position in the social scale with no means at all to maintain a standard equal to that of the industrialists, merchants, Government servants or persons engaged in the learned professions. The biggest farmer would be brought down to the level of a low grade government official or a small shop-keeper with the inevitable result that men of intelligence, ambition and capital would leave agriculture and migrate in to urban areas in search of better occupations which would enable them and their children to lead a life of greater comfort. We shall now proceed to examine the provisions of the Bill concerning ceiling.

6. The bill fixes the ceiling area at 15 acres of double crop nylon or its equivalent of 22^1/2 acres of single crop nylon or 15 acres of garden land or 30 acres of paramba without any regard to quality, fertility or irrigational facilities of the land. There is no rational basis for fixing the ceiling on the basis of the extent alone. It is well known that the yield of paddy from nilams varies from three-fold to fifty-fold and the yield of cocoanuts varies to the same extent in different parts of Kerala. The yield from parambas generally is negligible except from parambas where commercial crops like groundnut, ginger, etc., are grown. Irrigation facilities will also affect the yield considerably. To fix the ceiling on the basis of the acreage alone without reference to other considerations would work manifest injustice and therefore is unacceptable The only rational basis for fixing the ceiling can be on the basis of income from the land.

7. The income from the land must be sufficient to enable the agriculturist to lead a life of comparative comfort. He must be able to educate his children and must be able to meet medical expenses and other extraordinary expenses which it is absolutely unnecessary to detail here. Children will have to be sent to schools and expenditure will have to be incurred for sending one child at least in a family for higher education or for professional studies. To maintain a proper standard for an agriculturist family of not more than five members it would therefore be necessary to have a net income of at least Rs. 500/-a month or Rs. 6,000/-a year. We. are therefore of the view that if ceiling is to be imposed, it must be only over an extent of land which would give to the landowner an income of at least Rs. 6, 000/- a year or in the alternative an extent of 30 acres of double crop lands or its equivalent.

8. In this connection we wish to point out that the definition of family k likely to cause hardship. As it stands, the definition includes members of joint family entitled to a share on partition. The definition should be modified as to include a person, his wife and minor children. We also think that if any member of a family opts to hold property on his or her own account he or she may be allowed to do so up to the limit of the ceiling.

9. Under the Bill ceiling is made applicable to all lands except

(i) lands owned by Government or any local authority,

(ii) lands belonging to public religious or charitable institutions, and

(iii) lands comprised in Mills and Factorieis, etc.

These exemptions should stand. Provision is also made in the Bill to exempt from ceiling plantations measuring more than the ceiling area provided the owner does not hold any other land except the site of his dwelling house and the land required for the convenient enjoyment of the dwelling house. As every holder of a plantation except European Planters will have in his possession some other land, the provision will in practice exempt only European planters. Perhaps, the framers of the Bill would not have intended that result. Anyhow, the provision must be amended so as to include all plantations whether the owners thereof own other lands or not.

10. The word 'plantation' is defined as land used immediately before 18th December 1957 for growing tea, coffee, rubber or cardamom or such other special crop as may be specified by the Government by notification. Plantations are excluded apparently on the ground that they entail a large initial expenditure and that they begin to give a proper return only after years of patient waiting. If that is the ground on which they are excluded we do not see why pepper plantations are dealt with" differently in the Bill. Pepper gardens require great initial capital outlay & have to be looked after with great care and attention. So pepper plantations also have to be exempted. There are some plantations in Kerala of fairly large extent where Vettiver and lemon grass are grown and it would be folly to place a ceiling on them especially so as they are grown only in Kerala and are earning dollar and other foreign currencies. We think that cashew nut plantations also should be excluded as they can be made profitable only if they are fairly large in extent. All the crops above mentioned are commercial crops of immense national importance and every step should be taken to increase their production It is also our considered view that efficiently managed farms which consist of compact blocks on which heavy investment or permanent structural improvements have been made and whose breakup is likely to lead to a fall in production should be exempted as recommended by the Planning Commission. In the case of cocoanut and areca nut planta­tions, the recommendations of the expert committees appointed by the Central Government should not be ignored and legislation should be on the lines recommended By them.

11. There is a provision in the Bill that for the purpose of calculating the ceiling area, lands which are not cultivable by ordinary processes of husbandry shall be excluded. The authors of the Bill, perhaps intended by this provision to exclude lands such as Kayal and kole lands But it is desirable to place the matter beyond doubt by expressly excluding such areas.

12. If there are any lands at all which ought to be excluded from the ceiling provision they are the extensive forests owned by private individuals in Malabar. It is surprising that no provision is made for this though the legislature has passed an enactment recently empowering the Government to take possession of private forests. Express provision must be made for the exclusion of forests as their existence is very essential for the good of the country.

13. It would be noticed that in the definition of plantation only those in existence on the 18th December 1957 are included. We fail to see the reason which actuated the framers of the Bill to restrict the exemption clause only to those plantations which were in existence on the 18th December. The considerations which influenced the authors of the Bill from excluding plantations in existence on 18th December 1957 must really apply to plantations that may be made in future also. Further, the restriction would prevent the formation of plantations hereafter and that would affect economic stability of the State. It has to be remembered that the plantations are mostly of crops which are earning dollar and other foreign currencies and without which the exchange problem will become most difficult for the Indian Union. In this connection it is noteworthy that the Central cocoanut, areca nut and cashew nut committees as also the Rubber Board have encouraged owners of waste lands to plant them with such trees and have advanced monetary help to such farmers. The Chairman of the Rubber Board recently stated that the Kerala Agrarian Relations Bill had come as a stumbling block to the proper expansion of the industry and that the industry would be crippled if the Bill was passed into law without proper saving provisions. We are therefore of opinion that the date mentioned in the clause defining plantation ought to be deleted.

14. Sec. 63 of the Bill prohibits all alienations by way of sale or gift effected by persons having more lands than the ceiling area after the 18th December 1957 and S. 64 provides that any land in excess of the ceiling area shall be surrendered to Government. We are of opinion that the absolute prohibition of transfers is not in consonance with the fundamental rights guaranteed by the Constitution. That apart, there does not seem to be any justification for imposing such restrictions on one's right to dispose of property The provisions for fixing, and payment of, compensation, for assignment of lands to landless persons and the payment of purchase price by them, and for the management of surrendered lands till assignment are very complex, will lead to favoritism and corruption and entail bickering and quarrels amongst persons throughout the country. Above all, the distribution of lands will take considerable time, say four or five years, and during this period food production will be impeded; and ceiling which is imposed mainly with the object of increasing food production will result in seriously impairing it if the cumbersome procedure envisaged in the Bill is followed. We therefore suggest that the landowners may be allowed two years within which time they may make any transfers or adjustments with the tenants or other persons that they deem proper & that the ceiling provisions may operate only on lands in their possession in excess of the ceiling area after the specified period. Such a provision will enable persons interested in the lands to make equitable adjustments between themselves and avoid friction and misunderstanding to a great extent.

15. Compensation provided for excess land is meagre and absolutely inadequate. The Bill provides that the compensation shall be 16 times the maximum fair rent. The lands are taken away from persons who are in actual possession and therefore in all equity and fairness the compensation that they are entitled to should be a multiple of the net income that they enjoy. The net income will be the income that one gets from the land minus the rent that he has to pay to his landlord if there is any. The multiple of the fair rent is the compensation that the landlord is entitled to and should have absolutely no relation to the compensation which the person in possession is entitled to get. The absurdity of the provision is shown in all its nakedness by the following illustration. A person is in possession of some wet lands which he himself has converted from dry lands and he is also in possession of the same extent of lands which the landlord has converted from dry into wet. The maximum rent that he has to pay for the former set of lands is 1/6 of the gross produce and for the latter 1/4 of the gross produce. On surrendering the lands to Government the compensation that he would get under the provisions of the Bill for the former would be much less than the compensation that he would get for the latter; or, in other words he would get less compensation for the land that he has himself made arable than for the land that the landlord has converted. It would be clear from the above that the authors of the Bill have bestowed little or no thought in fixing the compensation. Compensation should not be fixed as a multiple of the fair rent.

16. In fixing the compensation we think it best to fix it at a multiple of the gross produce. In the case of lands surrendered by the landlord the compensation shall be ten times the value of the gross produce and in the case of lands surrendered by the tenant the compensation shall be the same and to be apportioned between the landlord and tenant in proportion to the benefits derived from the land by each. The compensation based on a slab system as provided in the Bill appears to be inequitable as many of the persons in possession of lands are persons who have purchased lands paying the full market value. Our Chief Minister Sri. Nambudiripad has himself stated in his dissenting minute to the Malabar Tenancy Committee Report, 1940 that an amount of about Rs. 160 lakhs is being invested every year on land by new owners in Malabar. It would be an act of grave injustice to deprive them of such lands without any reasonable compensation.

17. The payment of compensation must be as follows:-- For persons eligible for Rs. 5,000 or less, 50% immediate cash payment and for the rest negotiable Government Bonds carrying interest at 4°o redeemable within 10 years. For persons eligible to get more than Rs. 5,000 for Rs. 5,000 as above, and for the balance negotiable Government Bonds of the nature above mentioned.

Fixity of Tenure, Resumption and Purchase of the Landlord's Interest

18. The next subject for our consideration is fixity of tenure. The lands transferred by a landlord for planting tea, cardamom, coffee or rubber or any other special crop specified by the Government, leases of buildings, and leases of land for commercial or industrial purposes are not within the purview of the Bill So also transactions relating to usufruct of trees. We find that lands transferred for felling timber are not specifically excluded from the Bill. They ought to be specifically excluded as was done in the Malabar Tenancy Act of 1929.

19. With the exceptions above mentioned fixity of tenure has been granted to all tenants who are in bonafide possession of lands. But the definition of the word 'tenant' given in the Bill is made to include a person who is a mere licensee. Thus an Odacharthdar who is stated to be only a licensee to cut bamboo, a punam or Kumri cultivator and a licensee in Kuttanad taluk and a varamdar are incuded in the definition. Odacharthdar and a licensee in Kuttanad taluk are mere licensees as the Bill itself states. A varamdar cannot be regarded as having any higher right. Punam or Kumri cutivation is defined in the Bill as fugitive or intermittent cultivation of waste lands in Malabar. Persons in such temporary possession of lands cannot be said to be tenants in bonafide possession. They are mere licensees and there is no necessity to give fixity 1o such persons.

20. As every bonfire tenant has got fixity under the provisions of the Bill, we do not see any necessity to classify certain tenants as permanent tenants and the provisions regarding permanent tenants should therefore be omitted from the Bill.

21. Resumption of land from a tenant is allowed under the Bill (i) for the extension of a temple, mosque, church or other place of public religious worship, (ii) for constructing a building for the landlord's own residence or for that of any member of his family and (iii) for the landlord's own cultivation or for the cultivation of any member of his family up to the ceiling extent.

22. There ought not to be any distinction made between persons in Malabar and those in T. C. area. The law respecting landlord and tenant must be the same throughout Kerala. Though the Bill gives a qualified right of resumption, the right is rendered absolutely illusory as it cannot be exercised against a person who before 11th April 1957 has been continuously cultivating the holding for not less than five years if the holding is in Malabar or ten years if the holding in any other part of the State. We understand that in Malabar eviction has been stayed since 1951 and therefore every tenant would have been continuously cultivating for more than five years and the provision for resumption therefore becomes absolutely illusory. In T. C. territory also most of the tenants would have been continuously in possession for 10 years as a result of the tenancy laws, in existence there. The five year plan categorically states that on general grounds resumption of lands for personal cultivation should be permitted. It says that tenancy legislation should operate to the advantage of the small owner where the economic conditions of the owner and the tenant are the same It also says that owners with very small holdings would be permitted to resume the entire area. The Bill has not attempted to give effect to the direct­ives of the plan.

23. We consider that there is absolutely no necessity to declare that on the appointed day referred to as the Peasants' day every permanent tenant shall be deemed to have purchased from his landlord the land held by him as tenant. (S. 40 (1). Nor is there any valid reason for declaring that where no application has been made for resumption of a holding or if any such application has been made and rejected, a tenant of that holding shall also be deemed to have purcha­sed. (S. 40(2). We feel that there is no justification for making a tenant a purchaser of his landlord's interest even without his consent. The purchase must be a voluntary act of his and should not be thrust on him. It may be that the tenant may find that it is to his advantage to continue as a tenant and it is difficult to understand why even in such circumstance the legislature should make him a purchaser and make him pay compensation. It is true that there is a provision for the tenant to make a statement on service of notice to him that he is not willing to purchase the land. It should be the other way about. The tenant should be allowed to purchase only if he expresses a desire to purchase the landlord's interest. To make a tenant a purchaser of his landlord's interest even without his consent is to disturb the amicable relationship subsisting between the parties and to create bad blood between them. In our view S. 40 should be deleted altogether and instead a provision may be made to enable every cultivating tenant to purchase the landlord's right on payment of reasonr able compensation, say twenty times the income that the landlord is at present getting from the land.

Fixation of Fair Rent

24. The question of fixing fair rent pales into insignificance when compared with the other matters dealt with in the Bill. If the landowner is asked to surrender lands in excess of the ceiling area and if the cultivating tenants are given the right of purchase, fair rents will have to be fixed only with respect to a comparatively small number of holdings. In our view fair rent should be 1/4 of the gross produce in respect of wet land converted into wet by tenant's labour and in respect of other wet lands 1 3rd of the gross produce. In respect of gardens containing cocoanut trees planted by the tenant the rent of 1 /8th of the gross produce would be fair. In case of cocoanut gardens raised by the landlord it will be equitable to fix the rent at 1/3 of the gross produce In the case of other gardens also the fair rent should be fixed in the manner above stated with some variations regarding hilly tracts like Wynad where a larger proportion of the yield will' have to be given to the tenant. There does not seem to be any valid reason for fixing maxima or minima for fair rents as shown in schedule I of the Bill or for empowering the Government by notification to fix the rates of fair rent applicable to lands in any local area subject to the maxima or minima specified in schedule I.