DECISION IN 1969 K.L.T. 498

(N. K. Sreedharan, Advocate, Ernakulam)

The above decision appears to have created great confusion in the minds of judges, landlords and tenants. Normally a landlord claims market rate for paddy and other commodities when the tenant is not inclined to pay in kind and opts to pay in cash. Now according to the decision reported in 1969 KLT. On page 498 a tenant who has not got fair rent fixed by Land Tribunal for his holding is bound to pay the price notified under the Maximum Prices Order.

His Lordship V. R. Krishna Iyer J. has considered the impact of the Maximum Prices Order on the right of a landlord to demand the price of paddy and held that the tenant is not bound to pay the black-market rate, but is liable to pay the price fixed under the Maximum Prices Order.

Now the position is that a tenant while paying fair rent need pay only the price published by the District Collector under S. 43 of the Land Reforms Act whereas another tenant paying contract rent should pay a price not exceeding that fixed under the Maximum Prices Order. The price published by the District Collector may be the same as the maximum price fixed under the Maximum Prices Order. There may not be any difference at all between the two prices at a particular time. But sometimes there may be difference also.

Under S. 43 of the Land Reforms Act the District Collector causes to be published every quarter prices prevailing in each taluk of paddy, cocoanut, are canut, pepper, groundnut, tapioca, cashew nut, and any other notified crop. Price of paddy or any other commodity may not be the same throughout the State. There may be variation from place to place inside the State itself. The District Collector's publication will indicate such variations in the District. Differences in prices prevailing between Taluk and Taluk will be reflected in the publication. Further the publication will contain the prices of commodities other than paddy also. Moreover the prices will be reviewed quarterly. Whether publication of changes in the prices of commodities in this manner is advantageous to the landlord or tenant, what S. 36 (2) says, is that money value of commodities shall be computed with reference to the rates published in the Gazette under section 43. Of course Section 36 (2) restricts this facility to cases where fair rent has been determined under S. 31 or 33. But in the Miscellaneous Chapter IV it is expressly provided by S. 113 that for the purposes of the Act the price of any commodity referred to in S. 43 to be commuted into money at the market rate for any date shall be commuted at the price of that commodity published by the District Collector under S. 43 for the relevant quarter. In other words the prices published under S. 43 should be deemed to be market rates. Payment of rent cannot be said to be outside the purposes of the Land Reforms Act. Thus reading Ss. 36 and 113 together it can be seen that all tenants, whether fair rent has been fixed or not for their holdings, should pay the prices published by the District Collector under S. 43 from time to time in their respective Taluks and not any other price.

It would appear from a reading of the Order in question that His Lordship proceeded on the assumption that, when clause 2 of S. 36 is not attracted, there is no other provision in the Act specifying the money value of the rent payable in kind. There is no reference to S. 113 in the Order. Probably S. 113 was not brought to His Lordship's notice. The counsel might not have bothered to bring the Section to the notice of the Court since according to the tenant's counsel there was really no difference between the price relied upon by the learned Munsiff and the price notified as the "controlled price".

Even though the price published by the Collector and the price notified under the Maximum Prices Order may be the same I respectfully submit that a reference to the Maximum Prices Order was unnecessary in the case. Ss, 36, 43 and 113 covered all cases of money value of rent payable by tenants. When there was exhaustive and clear provision on the point it was not necessary to have relied upon the price fixed under a different Order.

Again resort to the Maximum Prices Order also will not solve the question. The aforesaid Order did not fix the price of paddy. It only prohibited sale of paddy for a higher price than that fixed therein. Paddy itself was divided into fine, medium and coarse varieties and different maximum prices fixed. The price of fine variety also varied according to the particular species of paddy. In all cases landlords may not be satisfied with the price for coarse variety, nor will the tenants be prepared to pay the maximum price for fine varieties. Therefore it becomes a matter for evidence. And each case will have to be decided on the evidence adduced therein with the anomalous result that one and the same court may be decreeing different rates for paddy for the same period according to the evidence available in each case.

The Kerala Paddy (Minimum and Maximum Prices) Order 1964 prevailed till 3 -- 9 -- 1965 until the Kerala Paddy (Maximum Prices) Order 1965 was publi­shed. Now since 1 – 4 -- 1968 the Kerala Paddy (Maximum Price) Order 1968 has fixed a uniform maximum price for all varieties of paddy of fair average quality of Kerala origin at Rs. 56.25/- per quintal. Evidently fine, medium and coarse varieties’ cannot fetch the same price in the market. But the same maximum price can be fixed for all these varieties because the Order does not fix the price at which paddy should be sold but only fixes the ceiling price and prohibits sale above that ceiling price. The 1965 Order remained in force for about 2 1/2 year. The Order did not take into consideration the local and seasonal changes which were to be taken into account in a publication of the prices by the District Collectors. Again the Kerala Paddy (Maximum Price) Order fixes the maximum price for paddy alone so that the tenant for whose holding fair rent has not been fixed will have to pay the market rate for other notified commodities until maxi­mum prices are fixed for those commodities too. A reference to Collector's publication under Section 43 will save the court and parties from an enquiry into the market value of such commodities. Section 113 provides for, warrants and directs such a reference.

The object of fixing the maximum price under the Maximum Prices Order is quite different from that of publishing the taluk price of commodities every quarter under Section 43 of the Land Reforms Act. Maximum Price Orders are made in exercise of the powers conferred under the Essential Commodities Act 1955", the provisions of which are meant to meet altogether a different situation.

The equitable consideration that the landlord will have to pay that price (that fixed under the Maximum Prices Orders) if he wants to buy rice or paddy is not every material in determining the price payable by a tenant in the face of express provisions in that behalf in the Land Reforms Act itself.

Under these circumstances it is respectfully submitted that the principle laid down in the above decision requires reconsideration. Or else the subordinate judiciary will be decreeing the maximum price fixed for paddy under the Kerala Paddy (Maximum Price) Order and will be enquiring into the market price of commodities like groundnut, cotton and sugarcane despite the clear provision in Section 113 of the Land Reforms Act.

Preparation of Ready, Weekly and Daily lists and the 'posting and adjournment of cases-- Instructions, issued by the High Court of Kerala.

In supersession of the existing instructions, the following instructions are issued on the above matters.

1.Ready list:- This is a running list of cases ready for hearing. A list of fresh cases that have become reado and are to be added to the list will be published every Saturday. Cases will be transferred from time to time from the Ready List to the Weekly List from which the Daily Cause Lists are prepared. Unless specially so ordered, no case will be included in the Weekly List until after the expiry of 14 clear days from its appearance in the Ready List.

2.Weekly List:- This is a running list of cases to be included in the Daily Cause Lists from day to day. A list of cases to be added to this list will be published every Friday and, unless specially so ordered, no case will be inc­luded in the Daily Cause List until after the expiry of one clear week from its appearance in the Weekly List.

The list should not be very long and should ordinarily include only such number of cases as are likely to be included in the daily lists within one month. The additions to the Weekly List will be made from the oldest cases available.

3.Daily Cause List:- This list will show the cases to be sent to the several Benches for hearing each day and will be published at 5 p.m. the previous day.

The daily list should not be very long and should ordinarily include only such number of cases, as are likely to he heard during the course of a week. The daily list should be re-arranged at the beginning of a term and at every avail­able opportunity like changes in the constitution of the benches so that the oldest cases will appear at the top of the list. When the list is arranged subject-wise, the subject under which the older cases occur should be placed at the top. If the list becomes too long, certain subjects may be held back and included in the list later when convenient.

Fresh cases added to the daily list shall ordinarily be entered at the bottom of the list. They may, however, be entered at the top of the list, if the bench has so ordered. Old and specially urgent cases entered at the bottom of a list will be pro­moted to the top of the list after the expiry of the week in which they were entered.

In cases where an outstation lawyer has been engaged, if a request is made to the Deputy Registrar, before the case has appeared in the daily cause list, for a posting to a particular day, the case will, as far as possible, be posted on that day immediately after the part-heard cases, if any.

4.Sitting Lists:- This will be published every Thursday and will show the sittings for the next week and the categories of cases which will be posted before each Bench.

5. Publication of the Lists:-Publication of the lists will be by affixture to the Notice Board of the Court. If the day on which a list is to be published falls on a holiday, the list will be published on the working day preceding the due date, or, in the case of lists other than the daily list, on the succeeding working day.

6. Leave and Adjournments:-All leave granted to counsel by the Hon'ble the Chief Justice will be subject to such general conditions as may be fixed from time to time. Under the orders now in force such leave will not apply to:

(1) Any case which has appeared in the daily cause list. (Leave will apply only to the addition of new cases and therefore will not be noted in the daily cause list);

(2) Criminal matters;

(3) Part-heard cases; and cases posted to specific dates;

(4) Cases of 1965 or earlier and Original Petitions, Writ Appeals, In­come-tax References and Tax Revision Cases of 1968 or earlier.

Requests for adjournment, or hearing out of turn, in respect of cases that have appeared in the daily cause list, should be made to the bench concerned as early as possible.                                                                                                                  No. DR. Mis. 18-/69: 31-1-1970.

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.