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.

PORTUGESE POCKETS IN INDIA

A Study in International Law

(C. John Mammen)

Flash back into history—In 1948 A. D. Vasco da Gama arrived at Kozhikode and secured certain trading facilities from the Zamorin. By 1509 with Alfonso de Albuquerque at the helm they embarked on a policy of territorial conquest, fully exploiting the political intrigues among the South Indian Rulers. Albuquerque conquered Goa on November 25, 1510 and by the middle of the sixteenth century it became the established capital of "Portugese India".

Title by Conquest:—The Portugese claim of title to Goa by conquest is untenable. At the time of the conquest the 'Just War Principle' was current in International Law. Ayala basing himself on Roman Law advocates that the party waging an unjust war could acquire legal ownership in the men and materials captured. ''Though the Romans never began war save on just causes, their enemies who could not have just cause (for both sides could not have it) became owners even by Roman Law, of the property conquered by their enemies (Ayala De Jure et Official Bellini et Discipline Militari Libri III, I, II, 34, Pp. 22-23. Classics of International Law Ed. James Brown Scott, London, 1912.) "'. The fallacy of this view can easily be established. ''Just Cause" is a matter of opinion in the majority of cases, and ordinarily two parties go to war each with a 'just cause'. History has a knack of upholding the victor's cause as the just one, unless it is so prominent by its absence as in the case of Portugese Conquests. Still another facet of this 'Roman Illustration' that they conceded the men and materials captured by the enemy with an 'unjust cause is that they being the vanquished could not help it. At this point they were intelligent enough to impart the necessary flexibility to the law, so that they would not have had to watch in helplessness their law being ignored and disgraced by their victorious enemies.

Grotius opposes Ayala's view. He observes"............If the cause of war should be unjust all acts which arise there from are unjust from the point of view of moral injustice"(Grotius. De Jure Belli ac Pacis Libri Tres Vol. II Book III Ch. X. Classics of International Law, Ed. J. B. Scott. Pp. 718-19, London,1925.). He further points out that Ayala's views "not only lacks a rational basis but also incite men to wrong doing"(Giotius De Jure Praedae. Vol. I, Ch. XII, Pp. 112, Classics of International Law, Ed. J.B. Scott, London,1950). Oppenheim holds that territorial acquisitions in violation of an existing rule of customary or conventional International law are "tainted with invalidity and incapable of producing legal results beneficial to the wrong doer in the form of a new title or otherwise".(Oppenheim International Law, Vol. I. Pp. 142, 8th Ed. London 1955) But he proceeds further to observe that such an invalidity fan be condoned if other states recognize that territorial acquisition How the initial illegality could be wiped out by the complicity of other states -- even with the implied complicity of the victimized state -- is a point unintelligible.

Kelsen maintains that an annexed territory forms part of the victor's territory even if the war waged by the victor, against the vanquished was anillegal war. This principle is alleged to be based on "Effectiveness"(Kelsen, Principles of International Law, Pp. 214, London, 1953). If this view is accepted the doctrine of Prescription becomes superfluous and the International Code of conduct will turn out to be in accordance with the dictum 'Might is Right'. Also it is against the Charter of the U. N. which ordains that "All members shall refrain from the threat or use of force against the territorial integrity or political independence of any state"(Art. 2 (4) U N. Charter).

The only possible reasons the Portugese can advance for waging war are (a) for trading facilities and (b) for the propagation of Christian faith.

Since they were given ample concession and facilities by the hospitable native rulers, wars on that ground are ruled out. And waging war for religious conversion was unjust even according to International Morale of the sixteenth century

On grounds aforesaid the Portugese title to Goa was bad at the time of the conquests. But India cannot dwell at length on that point because this invalidity was corrected by long and continuous display of Portugese Sovereignty in Goa (See the Island of Palma's Case. Permanent Court of Arbitration (192S) No XIX. Extracted in Green's International Law Through the Cases, Pp. 350, London, 1951). The Government of India cannot raise the contention that the prescription did not run against the new Republic of India which is of recent origin, for the important ingredient in prescription is time and not the party against whom it runs.

Cultural and Religious Influences. --Sixty one percent of the population in 'Portugese India' profess the Hindu faith, only thirty six percent are Catholics (Portugese Official Statistics, Lisbon, 1951, quoted by Mr. Nehru, The Hindu, Pp. 5, Col, 8, July 26, 1955.). Even this percentage of Catholics is principally the fruit of -- or rather the result of -- the missionary works of St Francis Xavier, S.J. and others backed by the sceptor of sovereign political power. In spite of all this "These Christians of Goa still largely adhere to caste distinctions, claiming to be j Brahmins, Kshatriyas and Low Castes who do not intermarry"(W. W. Hunter, Imperial Gazetteer of India, Vol. XII, Pp. 258, Oxford, 1908.)

The Pope has agreed with Mr. Nehru at the Vattican that the Goan Problem had nothing to do with religion. (Keesing's Contemporary Archives 1955-56 (14372-A).

Pretensions to stick on to Goa for safeguarding the religions and cultural heritage of the population are flimsy since the Constitution of India specifically guarantees the religious and cultural interests of the minorities (Constitution of India. Arts. 29 (lj and 30 (1)).

INDIAN CLAIMS

I. Geographical Contiguity.—Dr. Salazar proclaims "we hold a nation to be distinct and separate social aggregate regardless of their geographical position.... We area judicial and political unit" (Dr Antonio de Oliveira Salazar, Doctrine and Action Pp.178, Lisbon,1939). Ordinarily a state is composed of a single block or adjacent blocks of territories. But to have another state right in between two parts of a state is an unusual phenomenon. So is the case with Pakistan with India dividing it, and Prussia just after World War I, with the Polish Corridor running right through its territory dividing it into two. It was but a narrow strip of land. Yet as to Germany's eastern frontiers with the Polish Corridor she refused to accept it as final. It has been a bone of contention between Poland and Germany (Greenan and Gathany, Units in World History. Pp. 558 & 75s London,1946). So the general concept is that various provinces of a state are almost invariably to be found adjacent or at least very close to each other. But to have thousands of miles between a province and the state is a preposterous notion, and to maintain that Goa is part of the Metropolitan Territory of Porugal and not her colony -to avoid the provi­sions of the Charter which brings the colonial world generally within the sphere of International responsibility(Journal of the General Assembly No. X, Pp. 249. New York, 1955) -- is fantastic. It is against all concepts of geographical contiguity and symbolises nothing but the diplomacy of Power Politics. In fact these enclaves represent age old ulcers on the geographical entity of India. It is a task ahead to cure it.

2. Nationality.-- Ethically Goans are undoubtedly of Indian stock and Portugal is tactful enough to leave that issue untouched. In 1955 the U. S. Secretary of State pronounced "All the world regarded Goa as a Portugese Province" and that he believed "they were under the Constitution of Portugal and the residents of these areas enjoyed the full rights of Portugese citizens"(John Foster Dulles The Hindu. Pp 6, Col 5, December 7 1955). Conceding his wisdom and honesty on consideration of the ratio population between Portugal and her over sea colonies about fifty-five percent of the seats in the Portugese Legislature should go to representatives from overseas(World Book, Vol II, Pp 3505, New York, 1954). This is hardly the case. So conferring of Portugese nationality on the natives of the colonies is no, better than a farce.

3. Security.-- Portugal like Pakistan is a member of various military alliances. She is a member of the NATO. In a situation of International emergency, Goa might overnight be transformed into a military base of a group of foreign states. In this age of ballistic and nuclear weapons, no state can reasonably contemplate such a contingency with complacence. It is a matter vital to the self-preservation of India. The crux of the issue is that tolerance of these pockets might create a situation of great insecurity for India.

4. Economic Implications -- If Portugese Goa is militarily a potential danger to India, economically it has been a perpetual parasite. Goa is a bootlegger's paradise. Large scale smuggling is a "big industry" over there. The prohibition in Bombay is jeopardized by Goa. Exorbitant smuggling defeats Indian interests and adversely affects the economy of the state.

Dr. Salazar asserts that Portugal's claims of sovereignty over her colonies was guaranteed by the Anglo-Portugese Treaty of 1373 and also by Art. 4 of the North AtlanticTreaty ''This engagement (Anglo-Portugese Treaty) has lasted now for nearly six hundred years and is without parallel in history'"(Winston S. Churchill, The Second World War, Vol V, Pp 147, London,1952 Article 1 of the treaty of 1373 runs as follows:-

"In the first place we settle and covenant that there shall be from this day fonvard...........true, faithful, constant, mutual and perpetual, friendships, unions, allian­ces, and deeds of sincere affection, and that astrue and faithful friends, we shall hence­forth, reciprocally be friends to friends, and enemies to enemies, and shall assist, maintain and uphold each other mutually by sea and land against all men that may live or die").The fact is this is an outdated and time-worn Royal treaty devoid of all its life and luster. As late as on November 14, 1957, the High Commis­sioner of U. K. in India stated "...............though Portugal is a member of the NATO, U. K. is not bound to help her in her quarrel with India. No such provision existed in the Pact"(Malcolm Mac Donald, Speech at Kozhikode, The Hindu, Pp. 9, Col. 4, Nov. 171957). In 1954 Mr. Nehru pointed out that NATO has no application to Goa since it was an alliance for the Atlantic Communities (Mr Nehru, Loksabha Proceedings, May l5, 1954; Loksabha Debates, Vol. V, Pp 7508 (Loksabha Secretariat Publication) New Delhi, 1954).

India attempted to solve the issue by peaceful negotiation. But when it was actually felt that Portugal does not see the writing on the wall, and is reluctant to copy the example of France in conceding their Indian territories, India closed her legation in Lisbon, and subsequently demanded the closure of Portugese legation in Delhi. Meantime Nationalist movements in Goa gathered strength. The Nationalists liberated two small enclaves Dadra and Nagar Haveli. Consequently the Portugese suppressed civilian rights and began a reign of terror and persecution in Goa. India more than once declined to accede to requests from local authorities to take over the liberated enclaves. They are being administered at present by authorities organized by the local population (M.C. Setalvad, at the International Court of Justice, the Hague, Hindu, Pp. 4, Col 5, Oct. 9, 1957) But India refused Portugal the right of way to her liberated enclaves And against this Portugal instituted a suit at the International Court of Justice. The suit is still pending.

The Indian Defence Minister declared in the U N. General Assembly.

"......Inhabitants of India cannot be Portugese any more than a tiger can be a vegetarian. It is an insult to the intelligence of the Assembly to suggest that parts of foreign occupied territories can be an integral part of the Metropolitan country.....There is no question of these men having rights of ordinary human beings in Goa........ Goa is the last remnant of imperialism in Asia.........the dictatorship of Portugal will fall before the onslaught of freedom. For us it is a social nuisance being the last smuggling centre (V. K. Krishna Menon, Speech at the U. N. General Assembly, The Hindu, Pp. 4,Col. 4, Oct 10,1957).

The concept of Law and Justice changes with the times. Divine right of Kings and notions similar, are being discarded by all civilized states- The doctrine of Social Justice and the Socialistic Pattern of Society is gaining ground. Only the consolidated weight of world opinion seems to be the possible kick to wake up Portugal into the latter half of the twentieth century.

A NOTE ON 1958 K L. T 130

(K. A. Venkitaswaran, Advocate, Trichur)

(1) In this writ application, an order of the Collector of Customs, Cochin (R4) was sought to be quashed. It was negatived by the Hon'. High Court on [the principal ground that the impugned order has merged itself when it was taken on appeal to the Collector of Customs, Madras (B), which in turn was confirmed on revision by the Govt, of India (c), the latter two authorities being outside the jurisdiction of the High Court. But is the assumption that R4 merged itself when B and C were passed correct?

(ii) In A. I. R. 1958 S. C. 86, Their Lordships of the Supreme Court had to consider whether a departmental order passed on April 20, 1948 confirmed in appeal on June 7, 1949 and again confirmed in revision on April 22, 1950 will attract the provisions of the Constitution. The majority took the view that it will not on the sole ground that the order on April 20, 1948 did not merge itself in the later orders in appeal and revision: Their Lordships opined that such orders "Can hardly be equated with any propriety with decrees made in a Civil suit under the Code of Civil Procedure by the Court of first instance and the decree dismissing the appeal there from by an appeal Court and the order dismissing the revision petition by a yet higher Court as has been sought to be done by the High Court in this Case, because the departmental tribunals of the first instance or an appeal or revision are not regular Courts manned by persons trained in law although they have the trappings of the Court of law. In the next place, while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal there from or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for the execution of the decree, or for computing the period of limitation for an application for final decree in a mortgage suit. Whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective". Their Lordships allowed the appeal on the narrow ground that the Constitution had no retrospective effect and did not touch the order passed on April 20 1948. It was not suspended nor its operation interrupted by the presentation of the appeal or revision both ending in dismissals. "The original order of dismissal, if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned.'

(iii) Such being the law, even though under the Sea Customs Act the Collector is deemed to act judicially, it is only a tribunal having the trappings of the court of law. Even in appeals and revisions under the Civil Procedure Code, the theory of merger has been explained and is limited to the two specific purposes mentioned above. Hence it is submitted that the above decision requires reconsideration.

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.

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.