REFORM LAWS - FIRST SET

INTRODUCTION

It is a common saying that we have many laws but few are implemented effectively. At the same time there are lakhs of cases pending in Courts, many of them for long years. The reasons for the present situation are many: softness of the State, widespread disrespect for law, gulf between some continuing social practices and the law and draconian and impracticable provisions in some laws themselves. Since the essence of democracy is Rule of Law, it is necessary to ensure effective implementation of laws. The State has to be true and objective in the implementation of laws transcending the exigencies and expediency of political considerations. Citizens’ respect for law will improve when laws are implemented objectively and effectively. It is inevitable that in social matters, some laws are ahead of current practices as they are enacted in the interest of human rights, equality of all sections of society and protection of the weak. Effectiveness of those laws depends a great deal on parallel social reform movements and education of the type that we had during the decades of the struggle for independence and the years immediately thereafter. The Committee is, however, concerned with the changes that are necessary in the laws themselves and that relates to the fourth reason mentioned above.

The present situation of laws is that the same field is occupied in many cases by laws of varying vintage and applicable to different areas of the State. Laws of the colonial period vested large powers with the executive and restricted the exercise of rights by citizens to a considerable extent. The laws formed after the Constitution had to be in accordance with the provisions of the Constitution. However, since many laws were enacted in the same mould as before or restricted fundamental rights based on the laws needs of progressive legislation, they had to be specially protected in the ninth Schedule of the Constitution. In the light of the constitutional provisions, many social laws have been enacted and are being implemented with varying degrees of success. As regards economic matters, the laws enacted were in accordance with the requirements of an economy of shortages and of directed development, controls and licensing regarding production, marketing and prices.

In the last few years major changes have been taking place in the approach of society and the judiciary, to laws. The acceptance of public interest litigation by the higher Courts of the country since the last 15 years is a major landmark. There is increasing resort to it and this has its consequences not only for correction of executive action but also in the promulgation of judicial pronouncements having the force of law. It has been held by the highest Court of the country that where there is legislative delay and vacuum in an area in which a citizen is entitled to constitutional protection and rights, the judiciary has the duty to fill the vacuum when the matter is raised before it. Another important change that has come about is the recognition of the responsibility of Governments as public trustees of common assets like the environment.

In the economic sphere we are moving away from controlled and directed development to more open development with freedom to invest in any sector (except for very few strategic areas). The economy of shortages in food grains (for the country as a whole) and foreign exchange has changed to one of large surpluses.

In the field of governance, the Constitution 73rd and 74th Amendments brought about a decade ago made it mandatory for Central and State governments to devolve functions and responsibilities to local governments in such a way as to make them ‘self-governing institutions’. The local governments have therefore to be entrusted with functions and responsibilities in the laws relating to those subject matters under which functions are devolved to them. Existing laws have to be amended and every new law that is enacted has to lay down the extent to which functions are assigned to different tiers of local governments.

In the interest of rapid development of the State increase in employment and removal of poverty, the present government is committed to reforms in economic matters and in governance. The declared objective of the Government is to bring about far-reaching reforms with a human face. The laws dealing with economic matters have to be such as to promote investment, increase employment and provide a level playing field for all the concerned parties. The infrastructure for development has to be improved and expanded. Laws have to provide for public-private participation in this. They have also to be of a promotional nature to release people’s energies rather than being highly restrictive. Governance reform is sought to be brought about on a wide front dealing with :

· Fiscal reforms to enable the State Government to get back its fiscal capacity to implement well and efficiently what it undertakes to do.

· Strengthening of local governments with more functions and responsibilities in the process of their evolution as self-governing institutions.

· Reform of public sector including public utilities to make them efficient, economically viable and deliver better services.

· To improve the quality and modernize education at all levels so that the skills and the knowledge of younger generation are in tune with the requirements of the coming years.

· Simplification of rules and procedures and introduction of e-governance for removing the transaction costs of the citizens in dealing with government agencies.

· Increase in the responsiveness, accountability and transparency of governance.

· Social Security measures and special provisions for children, women and weaker sections.

The laws regarding governance reforms have to deal with all these aspects.

The above considerations have to be kept in mind while looking into the question of obsolete laws, unification of laws and the suggestions regarding new laws. The Committee’s recommendations on repeal of old laws are given in Chapter IV. The laws to be unified are indicated in the Chapter III. In the present Chapter the Committee is proposing the first set of original and amendment Bills that have been prepared by it after examining the drafts that were at various stages of preparation in the Government and after considering new suggestions that have been received by the Committee. In all, seventeen original laws and nine amending laws are proposed. The draft of each of these laws is given in the following pages, with a brief background note in each case.

THE KERALA BUILDINGS LEASE BILL, 2002

Background Note.

Rent control and accommodation control were conceived as short-term measures to overcome shortage of rented buildings and accommodation during the war period in 1940s. The Rent and Accommodation Control Acts were intended to be in operation for a short and limited duration. In almost all States the Acts apply only to urban areas.

The continuance of Rent Control Laws and enactment of new ones, however became a common feature in the interest of protection of tenants. Accommodation control which was most difficult to operationalize became inoperative over the years.

The Kerala Buildings (Lease and Rent Control) Act was enacted in 1959 integrating the laws in force in Travancore-Cochin and Malabar areas. The Act provided for the regulation of the letting of the buildings, the prevention of unreasonable eviction of tenants from buildings and for the control of rents in respect thereof. Even this Act was initially in force for a period of three years and was later extended up to end of March 1965 when the Kerala Buildings (Lease and Rent Control) Act, 1965 was enacted. The object of the amended Act was also the same. The provision for accommodation control became inoperative. The major provisions of the Act related to the control of rents, the fixation of fair rent, ban on the increase of fair rent and prohibition on the landlords to claim or receive anything in excess of fair rent or agreed rent. The Constitutional validity of the concerned provisions in the law was questioned before the Kerala High Court and in Issac Ninan Vs. State of Kerala (1955 (2) KLT 848), the High Court declared the provisions of sections 5, 6 and 8 of the Act as ultravires the Constitution of India and void. The Court also held that apart from the fact that the provisions are unjust and unreasonable as they offend Article 14 of the Constitution, they would also offend Article 19(1)(g) of the Constitution. Constructing buildings and letting them out for rent to tenants would fall within the ambit of “Business” in Article 19(1)(g). The limitation imposed on a person should not be arbitrary or of an excessive nature beyond what is required in the interest of general public.

A number of studies have been made in the country on Rent Control legislations during the last 30 years. They have shown how the rent control laws with a freeze on rents and extreme difficulty in resuming possession resulted in very low or even negative investments and has thus adversely affected housing both in the creation of new stock and the proper maintenance of existing housing. The Rent Control laws were amended in a number of States. After the Judgment of the Kerala High Court in the case referred to above the State Government took a decision to frame a law on the lines of the Delhi Rent Control Act. The Delhi Act provides for compulsory registration of rent deeds irrespective of its duration, appointment of rent authorities and Tribunals and periodic revision of rent.

In the light of the experience with the working of the rent control laws in the State and elsewhere, the inoperative nature of many of the provisions in the 1965 Act and the change in circumstances, the Committee has considered the whole question and prepared The Kerala Buildings Lease Bill whose provisions would be fair both to tenants and the owners and the proceedings under which will be expeditious. The draft Kerala Buildings Lease Bill prepared by the Committee is appended.