RENT CONTROL LAW IN KERALA

(E.P. Varghese, M.A., B.L.)

For the last ten years and more there have been Laws to control the rent of buildings in Kerala. In the Malabar District of Madras which is now a part of the Kerala State, there was the Madras Buildings Lease and Rent Control Act, 1949. In the Cochin State the Rent Control Order of 1117M.E. and the subsequent Cochin Buildings Lease and Rent Control Act, 24 of 1124 M.E. and in Travancore the Travancore House Rent Control Order of 1120 modified by the Order of 1122 were controlling the rents. With the integration of the two States of Travancore and Cochin the law was made uniform by the Travancore-Cochin Buildings Lease and Rent Control Order, 1950. On 17th January 1959 all these Acts and Orders have been superseded by an Ordinance, 3 of 1959 which promulgated a uniform law for the Kerala State.

This Ordinance was promulgated when a Bill, to enact a single law for the State, known as the Kerala Buildings Lease and Rent Control Bill introduced in the Kerala Legislative Assembly was ready for the second reading. The emergency for an Ordinance on a matter pending in the form of a Bill before the Legislature is inexplicable. Anyhow this Ordinance repealed and superseded all the existing laws -Acts and Orders-on the subject.

The Assembly met on 21st February 1959 and another Bill for Rent Control was introduced in the Legislature by the Government. This strange procedure came in ‘for the protest of the opposition and the Government rightly withdrew this 2nd Bill and commenced the 2nd reading of the first Bill. After many amendments, some of them even against the principles of the Bill accepted by the Assembly, the Bill was passed. On receiving the Assent of the Governor the Bill as passed by the Assembly will become law. Whether it has received the assent of the Governor is not yet known. Probably it needs the assent of the President. The Ordinance containing most of the provisions of the Bill was promulgated by the Governor after “instructions from the President have been obtained in pursuance of the proviso to clause (1) of Article 213 of the Constitution of India”. Anyhow the fact is that the Kerala Buildings Lease and Rent Control Bill passed by the Legislature is not yet law, or at least, it has not come into operation, since, under Section 3 of the Travancore-Cochin Interpretation and General Clauses Act, 6 of 1125 as amended by Act 3 of 1957, it has not been published in the Gazette.

Further, it is laid down in Article 213 (2) (a) of the Constitution that an Ordinance “shall cease to operate at the expiration of six weeks from the reassembly of the Legislature”.

Thus, Ordinance 3 of 1959, regarding Rent Control of Buildings has repealed all the existing laws and has itself ceased to operate, since 6 weeks are over after the reassembly of the Legislature on 21st February 1959. The position therefore is, there is no Rent Control Law in Kerala now. The Rent Control Petitions pending disposal will be in cold storage till the Bill passed by the Assembly becomes Law and is published in the Gazette. This period of hibernation may give rise to many difficulties which will need other legislation to rectify. Who is responsible for this state of affairs?

Sales Tax Cases and Art.286 of Constitution of India

(T.K. Kochuthommen, B.A., Barrister-at-law

United Motors Case

The framers of the Constitution wanted to devise a formula of restrictions on the State power of taxing sales or purchases involving inter-State elements, with a view to avoid multiple taxation. This they did by enacting Clause (1)(a) with the explanation and Clause (2) of Article 286.

Clause (1) (a) prohibits the taxation of all sales or purchases which take place outside the State.

There are several ingredients involved in a sale and it is always difficult to locate a particular sale. Before the Constitution came into effect, several States imposed eales-tax, basing their claim on any one of the ingredients being present in their States. This resulted in multiple taxation.

The problem of the Constitution makers was to find out what is an outside sale. The Explanation to Article 286(1) (a) was therefore introduced. It provides by means of a legal fiction that the sale has taken place inside the delivery State i.e., the State in which the goods were actually delivered for consumption, notwithstanding the property in such goods passed in another State.

The test of sufficient territorial nexus was thus replaced by a simpler and more easily workable test. If the goods were delivered for consumption in a particular State, then the sale or purchase shall be deemed to have taken place in that State and outside all other States. Even the title State i.e., the State in which the property in the goods passed cannot tax the sale of those goods. Multiple taxation of the same transaction by different States is now avoided.

The explanation deals only with inter-State sales or purchases, and not with purely local or domestic transaction. That these are subject to the taxing power of the State has never been questioned.

Article 286(1) (a) read with explanation prohibits taxation of sales oi purchases involving inter-State elements by all States except the delivery State. The Delivery State is left free to tax such sales or purchases, which power it derives not by virtue of the explanation, but under Article 246(3) read with entry 54 of List II.

The operation of Clause (2) of Article 286 stands excluded as a result ol the legal fiction enacted in the explanation. The Delivery State is free to impose tax on inter-State sales or purchases, in spite of Clause (2).

The effect of the explanation in regard to inter-State dealings is to invest what in truth, is an inter-State transaction, with an intra-State character relation to the delivery State, and Clause (2) therefore can have no application,

The explanation is merely designed to explain the meaning of the expression ‘Outside the State ‘in Clause (1) (a). Once the sale is located within the taxing State by means of the fictional test, the transaction loses its inter-State character and falls outside the purview of Clause (2). Such sale or purchase be­comes in the eye of the law a purely local transaction. When an inter-Statetransaction is turned into an intrastate transaction by the operation of the legal fiction, Clause [2] ceases to have any operation.

An inter-State sale becomes an intra-State transaction when it comes under the explanation. Article 286(2) imposes a ban only on taxation of inter-State sales. But explanation sales are intra-State sales as a result of the operation of the fiction. Therefore Clause (2) has no application.

Bengal Immunity Case

Explanation in Clause (1) (a) of Article 286 cannot be extended to clause (2) either as an exception or as a proviso thereto or read as curtailing the ambit of Clause (2). Clause (2) has independent operation. To this extent the United Motors case is overruled.

There are four separate and independent restrictions placed upon the legislative competency of the State to make a law with respect to matters in Entry 54 of List II. Constitution makers have considered different aspects of sale or purchase and placed check on the legislative powers of the States at different angles.

Thus in Clause (1) (a) the question of the ‘Situs’ of the sale or purchase engaged their attention, and they forged a fetter on the basis of such situs to cure the mischief of multiple taxation by the States on the basis of the nexus theory. The theory of territorial nexus is now replaced by the theory of situs.

In Clause (1) (b) sales or purchases are considered from the point of view of foreign trade, and placed a ban on the power of the State to tax foreign trade. This is with a view to encourage foreign trade.

In Clause (2) the sale is looked at in its inter-State character and a ban is imposed in the interest of the freedom of the internal trade.

In Clause (3) the sale is considered from the point of view of the character and quality of the goods. A restriction is placed on the power of the States to tax ‘declared goods’.

The explanation has created a legal fiction and this fiction is created onlyfor the purpose of Clause 1 (a). It only explains what an outside sale is. Explanation in Clause (1) (a) cannot be extended to Clause (2) either as an exception or as a proviso thereto or read as curtailing or limiting the ambit of Clause (2). Explanation cannot be read into Clause (2). It therefore follows that except in so far as Parliament may by law provide otherwise, no State law can impose any tax on sales or purchases when such sales or purchases take place in the course of inter-State trade or commerce and irrespective of whether such sales or purchases do or do not fall within the explanation.

The ‘situs’ of a sale or purchase is wholly irrelevant as regarded its inter-State character.

Even when the situs of a sale or purchase is in fact inside a State, with no essential ingredient taking place outside, nevertheless if it takes place in the course of inter-State trade or commerce, it will be hit by Clause (2). All that the Explanation does is to shift the ‘situs’ from point A in the stream of inter-State trade to point B also in the stream. It does not lift the sale or purchase out of the stream in those cases where they form part of the stream.

The shifting of “the ‘situs’ of a sale or purchase from its actual ‘situs’ under the general law to a fictional ‘situs’ under the Explanation takes the sale or purchase out of the taxing power of all States other than the State where the ‘situs’ is fictionally fixed. That is all that Clause (1) (a) and the Explanation do. Whether the delivery State will be entitled to tax such sale or purchase will depend on other provisions of the Constitution. The assignment of a fictional situs has no bearing on the inter-State character or the export and import character of a sale or purchase; they are entirely different topics.

The fixing of a ‘situs’ in a particular State either under the general law or under the fiction does not conclude the matter. It has yet to be ascertained whether that sale or purchase which by virtue of the Explanation has taken place in the Delivery State was made in the course of inter-State trade or commerce. For this purpose, the Explanation has no application. Cases may arise in which purchases or sales which are outside Clause (2) may yet fall within and be governed by the Explanation.

Until Parliament has lifted the ban under Clause (2) no State can impose or authorize the imposition of any tax on sales or purchases of goods when such sales or purchases take place in the course of inter-State trade or commerce. The majority decision in United Motors, in so far as it held that the Explanation sales are taxable by the delivery State in spite of the ban under Clause (2), is overruled by this decision. The taxing power of the State is subject to Clause (2).

Tata Iron & Steel Co. Ltd. vs. Bihar State

(1958 A.I.R. JUNE)

Nexus theory Is it applicable to Sales Tax?

This decision relates to the imposition of sales-tax on sales that took place prior to the Constitution.

The legality of the theory of territorial nexus was never questioned in a Court of law, but it was always applied to sales-tax legislation by various States until the introduction of the Constitution. The applicability of the nexus theory to sales-tax legislation has been recognised by the Supreme Court in United Motors Case-

The States, in exercise of the legislative power conferred on them by the Government of India Act, 1935, enacted sales-tax laws acting on the principle of territorial nexus. They picked out one or more of the ingredients constituting a sale and made them the basis of their sale-tax legislation. Such claims to taxing power led to multiple taxation of the same transaction by different Provinces and cumulating of the burden falling ultimately on the consuming public. It was to avoid this evil of multiple taxation that the Constitution makers enacted Article 286.

Since the enactment of Article 286, the only nexus that is recognized is the delivery nexus-in other words it is the delivery for consumption that gives the State the right to tax.

From the point of view of the economist and as an economictheory, sales-tax may be an indirect tax on the consumers, but legally it need not be so. Retrospective legislation in sales-tax is therefore perfectly valid.

Sundararamaier’s Case

It was to repair the mischief of multiple taxation that Article 286 was introduced. While retaining the power in the States under Entry 54 in List II, Article 286 imposed certain restrictions on that power. One of the restrictions is contained in Clause (1) (a) which prohibits a State from taxing outside sales. The Explanation under Article 286 is attached to this provision, and though the Explanation is positive in form, it is in substance negative in character. Its purpose is not to confer any fresh power of taxation on the State, but to restrict the power which it previously had under Entry 54.

But the purpose of a taxing statute like the Madras Act is to confer a power on the State to levy and collect tax. While the prohibition under the State statute is intended to prevent taxation of outside sales on the basis of the ‘nexus doctrine, the Explanation is intended to authorize taxation of sales falling within its purview, subject to other provision of the Constitution, such as Clause (2) of Article 286. The State law cannot invest another State with a power or divest it of a power; its mandate runs only within its own borders. The only purpose of the Explanation to S.22 in Madras Act is to authorize that State to impose a tax on sales falling within its purview. Thus, while in the context of Article 286(1) (a) the Explanation thereto is negative in character though positive in form, it cannot be so construed in its setting in S.22 of the Madras Act, where it must have a positive content. The Explanation operates to confer on the State a power to tax Explanation sales. The true scope of S.22 is that it does impose a tax on the Explanation sales, but the imposition, is to take effect only when Parliament lifts the ban under Article 286(2). Article 286(2) is in two parts, one a restriction on the power of the State, and the other a condition on which such restriction will cease to operate. There is no prohibition in Clause (2). It merely enacts that State laws imposing tax on inter-State sales can have no effect, until Parliament has lifted the ban. The words “No law of a State shall impose” mean only that no so much law shall be effective to impose a tax. S.22 therefore imposes a tax on Explanation sales, but it would be enforced only when Parliament so provides. Mathew v. T.C. Board of Revenue A.I.R 1957 T.C. 300 and Cochin Goal Co. Ltd. v. State of T.C. 1956-57 STC 731 are overruled in so far as they held that S.26 of the T.C. Act had not the effect of imposing, of its own force, a tax on Explanation sales.

There is a distinction between a legislation on a topic not within the competence of the legislature & a legislation within its competence but violative of Constitutional limitations. In the former case it is null and void, and a subsequent cession of that field to the legislature will not revive what was null and void. But in the latter case, though the law was “unenforceable by reason of those prohibitions, will become effective without re-enactment when once they are removed. A tax under S.26 of the T-C Act becomes enforceable when the ban under Clause (2) is lifted by the validating Act. The imposition was a valid imposition, though unenforceable at the time of imposition on account of the ban. When the ban is lifted what was once unenforceable becomes enforceable.

During the period between the United Motors case and the Bengal Immunity case, various States had imposed sales tax on Explanation sales basing their claim on the construction put on the Explanation by the majority decision in the United Motors case. But such imposition became unauthorized as a result of the decision in Bengal Immunity case. The purpose of the Validating Act was to enable those States to retain the money so collected. The effect was that it liberated the State laws from the fetter placed on them by Clause (2) and enabled them to operate on their own terms.

The States had the power to tax inter-State sales under Entry 54 subject only to Clause (2). The Validating Act rendered such law operative and pro­ceedings taken there under valid. The sixth Amendment of the Constitution proceeding on the view that the States had the power to tax inter-State sales under Entry 54, amended the Constitution, and vested the power in the Centre.

Round the Wheel

(D. Vijayaraghavan, Judicial Magistrate)

'Your Honour," the defence counsel pleaded, "this is not that cruel and cold-blooded murder, but a case of inheritance; he has inherited that extra 'Y' chromosome from his father's abnormal sperm."

The Judge calmly pronounced "The accused be institutionalised!"

Such is the progress achieved by western lawyers and courts in the trial and verdict on a criminal. And, then as I was collecting a packet of insecticide to eradicate the evil of bug-bite from my chair in the Court hall, the figure of that Pw-6 just shadowed in my vision. He was put in the box by the prosecution at a time when I by virtue of inherent power was using criminal force in the table fan, the origin of which is unknown, but peeping into my left ear and crying like a Municipal Siren. Majestic as it was, an antique art it rotates with the earth but no revolution since the coming into force of the Medical termination of Pregnancy Act. The clock on the wall, a similar celestial object with a recalcitrant tongue strikes always twelve when it was one or six. Once it was remanded for repair. On its return it became so arrogant that its striking became a terror to the poor widowed destitutes flocked at the windows under S. 125 CrI. PC. Applying the doctrine of eclipse in constitutional law a further remand was granted. On its reappearance the dial letters turned Babiloniyan script and at present to read it the following rules of interpretation applied. Obvious and popular sense of the letter should be followed as a general rule. The letter should be construed in a manner which would suppress the mischief, advance the remedy, promote its object and prevent its subtle evasion and foil its artful circumvention.

Taking in the air around the courthall pure to breathe, an admixture of smoke and dust supplied free of cost by the adjacent tea shop and the Government bus stand, Pw6 was to prove a mahazar in a case of carnal intercourse against the order of nature. A towel worn by the child at the time when she was molested by the accused was seized by police under a recovery mahazar attested by Pw-6 It was smeared with semen was the case of the police. Although several elders were present at the time of recovery, Pw6, a Pre Degree student was chosen to be the attestor. "Your honour, that is investigating wisdom! Noneelse could be the apt witness to identify semen and this the police knew," the prosecutor would have argued. But Pw-6 facing the Lady Medical Officer sitting by the side proclaimed" “alÊÀ FgpXnb tXmÀ¯n Rm³ IIp”. Asked the inquisitive prosecutor “F´p IIp?” “AXv IIp” “GXv?” The pressing demand. “{]Xn-bpsS _oPw” was the answer. The Medical Officer astonished, reflected over her certificate whether she went wrong. The prosecutor hearing the cracking noise of the back rest of the wooden bench caused accidentally by the pressure exerted by an advocate clerk calmly resumed his seat.

The Supreme Court in Kunju Kunju Janardanan's case (1979 Crl. L. J. S. C. 820) had occasion to comment upon this extra 'Y' chromosome. Perhaps the first in Indian Judgments! His Lordship appears to have suggested willing castration as a mode of punishment. The great literary genius Oscar Wilde in Prison was quoted by the Supreme Court in 1978 Crl. LJ. SC. 1762, viewing cellular isolation from a human angle.

Wilde must now be considered as a Pathological case study "There is the question of heredity and early environment. He was the child of parents of marked eccentricity as well as of exceptional ability. Sir William Wilde was a man of abnormal sexual drive. He was a notorious runner after women, by whom he had sundry illegitimate offspring, and he figured in a sensational “trial in Dublin in which he was accused of having violated a woman patient in his surgery, having first put her under the influence of Chloroform. Have Lock Ellis has expressed the opinion that homosexual germs were latent in Wilde's constitution by descent: While an under-graduate at Oxford he contracted syphilis probably with a prostitute. Besides the professional prostitute at Oxford he had connections of this kind in Paris, New York and London. Before proposing to his wife, Wilde consulted a doctor who had assured him complete cure of his youthful malady. On the strength of this assurance he got married. But about two years later he discovered that all traces of Syphilis had not been eradicated; on the contrary, the spirochetes were quite active. It was this unpleasant discovery which obliged him to discontinue physical relations with his wife. In the result, inter alia, he turned towards homosexuality. Prominent homosexual characters in history began to attract him. If Wilde had been content to confine his homosexual relations to Robert Ross, and even to Lord Alfred Doughlas, it is extremely unlikely that his conduct in this respect would ever have come to the notice of the Director of Public Prosecutions Unfortunately for him, he made the fatal mistake of extending the range of his homosexual acquaintances to such individuals as a groom, an unemployed clerk, a newspaper boy, also a youth who worked in his publisher's office.

Voluntary castration was then not in the contemplation of English Judges and so Wilde was sent to prison to sing 'A great river of Life flows between me and a date so distant-----For us there is only one Season, the Season of Sorrow-----"

Transcendental meditation was suggested as a curative process in the case of such pathological criminals. (1977 Crl.L.J. S.C. 1927 and 1980 Crl.L J. S.C. 9) What then will be the reaction of the extra 'Y' chromosome to this remedial (ideal?) brain therapy?

Traversing by the epics, Vasishta, Viswamitra, Kapila and Gouthama, all in the wilderness of the woods were great meditators. They brought down Brahma and all the Gods from Heaven and obtained boons. All the senses were captives before their realised wisdom But not long afterwards that the senses overpowered them and they uttered their curses. Even Indra who had direct access before Gods approached Ahalya for urgent solicitation.

Oscar, a willing party to castration! A castrated Oscar is most unwelcome in the London Society. Will the ladies in the London club exhibit that degree of regard which they had shown to him? This is not doing justice either to Oscar or the London Society. T. M or transcendental meditation is known as the science of creative intelligence. Can one say that Wilde was devoid of creative intelligence? Was it not that 'Y' chromosome which played the prominent role in his creative works acclaimed by the world? Who knows Janardanan castrated will not turn a lunatic? Who knows Janardanan in T.M. will not infatuate more fanciful lovers?

Sage Gauthama had his curse on Ahalya "Thou shall lie here unseen"! Thus she lay there under solitary confinement for a long period and she was released and purified only at the time of Rama Avathar. Even Rama, the Purushothama touched her feet as she emerged from her long term incarceration. On the other hand, after his release from prison Oscar was to resume his homosexual practice, with less discrimination than ever in the choice of associates, and, as is now generally known, they continued until the time of his final illness in the year 1900.

Punitive Philosophy, whether deterrent or reformative is the province of God. Judging the criminal with human imperfections is a dual in the Sun. After all, elimination is an inevitable concomitant of natural evolution. How horrific was the mass annihilation of fishes in that great drought? Only the fittest survived. The outcome was the evolution of the vacuum bladder into a truncated lung system resulting in the creation of amphibians. How terrific was the mass death among the monkeys in that great tempest and havoc when they were driven away from the top of the trees where they lived and slept by hanging with the tail and head downward? It was the havoc causing the death of many a monkeys that paved the way for monkeys to walk on legs and eventually to the evolution of man. The great heart of nature beats, its throbbing stimulates the pulse of life and she alone knows the purpose and meaning of both creation and" extinction. A reformist, if at all desirable is born in that pulse of life and not otherwise, once in a way as Jesus, Budha or Gandhiji. Thus we see the 'Nature' of individual elimination incidental to social evolution.

Chanting on penological justice is also a dual in the Sun. It is said that a long term sentence on a husband is hot doing justice to the wife deprived of her right to sexual intercourse. But the same sense of justice we do not even think about in the case of the wife whose husband is murdered by the former. It may be said that the later wife can remarry. Well and good, if it so happens! Janardhanan castrated is doing justice to his real wife? "Indeed, victim reparation is still the vanishing point of our criminal law" (1980 Crl. LJ. SC. 12.)

Who invented the first wheel cart? The Sumarians. It was the stepping stone to the great march towards civilization. Who now injects and interposes the Rubber Wheels? The Society in a Bandh or other agitation. The invaders of the great invention! Social justice demands their elimination. Justice individual requires their reformation based on heredity, pathology, meteorology, ecology or environment.

What is justice? "No other question has been discussed so passionately; No other question has caused so much precious blood and so many bitter tears to be shed; No other question has been the object of so much intensive thinking by the most illustrious from Plato to Kant; and yet, this question is to-day as unanswered as it ever was." 1978 Crl. L. J. SC. 1529.

And what is Social Justice? "If it could be possible for Confusius, Manu, Hammurab, and Solomon to meet together at a conference table, I doubt whether they would be able to evolve agreed formulae as to what constitutes Social Justice, which is a very controversial field—" 1979 Crl. L. J S. C. 809.

Ringing in my ears the words of H. Barnes "Society has been unfortunate in handing over criminals to Lawyers and Judges in the past as it once was in entrusting medicine to Shamans and Astrologers and Surgery to Barbers."

Judicial Overspeed v. The Art of Obtaining Maximum Adjournments

(A.R. Vijayan, Prl. Sub Judge, Alleppy)

Hats of to Sri. T.P.K. Nambiar. The learned writer had in lighter vein but in impressive style had pinpointed the evils of 'hasty' disposals by Courts. But he had not dealt with the other side of the coin, 'The Art of obtaining maximum number of adjournments in cases'. Of course that can be a matter for separate thesis. What other ingenius devices can be used to get adjournments other than the grounds such as 'Counsel out of station', engaged in another court, client present but not well enough to withstand cross-examination etc., etc., is a matter for deep study. If everything fails there is the trump card. Report that the plaintiff or the defendant as the case may be is dead. Adjournment is assured. But on the next hearing date make sure that a petition is filed on solemn affirmation that the 'submission' made on the previous hearing date was the result of a wrong instruction given by a wrong person wrongly representing himself to be the man of the plaintiff or defendant as the case may be. The list is not exhaustive but only illustrative. Prize schemes for awards for obtaining maximum number of adjournments in maximum number of cases can also be considered for the slow progress of the cases.

Viva La the Art of obtaining Maximum Adjournments. Let Justice progress, slow but steady, avoiding 'the wrath of all'.