PETITIONER:
K. EAPEN CHACKO
Vs.
RESPONDENT:
THE PROVIDENT INVESTMENT COMPANY (P) LTD.
DATE OF JUDGMENT01/11/1976
BENCH:
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SHINGAL, P.N.
CITATION:
1976 AIR 2610 1977 SCR (1)1026
1977 SCC (1) 583
ACT
Kerala Land Reforms Act (Kerala 1 of 1964) as amended in
1969 and 1971, Ss. 3(1), 50A, 52, 73, 108, 125 and
132(3)--Scope of.
Interpretation of statute--Statute when retrospective.
HEADNOTE
The proviso to s. 3(1)(vii) of the Kerala Land Reforms
Act, 1964. provided that nothing in clauses (i) to (vii) of
s. 3(1) shall affect the rights of persons who are entitled
to the fixity of tenure immediately before 21 January 1961
under any law then in force. The law prevailing immediate-
ly before 21 January 1961, was the Malabar Tenancy Act,
1929. Under s. 23 of that Act a tenant would be liable to
be evicted from his holding at the instance of h/s landlord
if he intentionally committed acts of waste or defaulted in
the payment of rent for more than 3 months. The proviso was
amended by 1969-Amendment Act which came into force on
January 1; 1970. The amending Act also. inserted in the-Act
new Ss. 50A. 52 and 73. Section 50A provided that a tenant
entitled to fixity of tenure shall have the right to use
his holding in any manner he thinks fit. Section 52 pro-
vided that a cultivating tenant shall have a right to
cut .trees and s. 73 is to the effect that the maximum
amount that could be claimed by way of arrears of rent is
only for 3 years.. Section 108(2) was also amended and it
provided that any decree passed before the commencement of
the section for the dispossession of a person from the land
in his possession may on the application. of such person
be reopened and disposed of in accordance with the provi-
sions of the 1964 Act as amended by the 1969-Act provided
dispossession has not been affected. Section 125(3) provid-
ed that if in any suit or proceeding questions regarding the
rights of a tenant arose, the civil court shall stay such
proceedings and refer the question to the Land Tribunal
having jurisdiction over the area. Section 132(3) provided
that any decree pursuant to which eviction has not been
effected may, on the application of the tenant or the land-
lord be reopened and the matter disposed of in accordance
with the provisions of the Act.
The respondent owned about 550 acres out of which more
than half was Coffee planted area. He leased the plantation
and the remaining unplanted area to the appellant in 1950
for 12 years. Clause (4) of the lease provided that if the
rent was in arrears for 30 days after it became due it was
lawful for the lessor to forfeit the lease and re-enter on
the land. Alleging_ that since 1953 the ’appellant had
neglected to pay the rent, the respondent filed the suit
claiming possession of the land, arrears of rent, and dam-
ages for waste. The trial court decreed the suit in. 1966
and the decree was confirmed by the ’High Court with the
enhanced damages in February 1969. In appeal to this Court
the appellant contended that he was entitled to fixity of
tenure; that the unplanted area was not a plantation and ’so
he was entitled to fixity of tenure therein; ,hat the pro-
ceedings were to be disposed of in accordance with the
provisions of the 1964 Act as amended by 1969 Amendment Act.
that is. that all questions regarding rights of tenants and
landlords could be decided only by the Land Tribunal; and
that the damages were awarded contrary to the ’provisions of
the Act as amended. He, therefore. filed an application
praying for reopening of the decree passed by the High Court
and also contended that in view of the amendments in 1971
the appeal is to be disposed of in accordance with the
provisions of the Act, as amended in 1969 and 1971.
Dismissing the appeal to this COurt,.
HELD: In the present case, the decree was passed by the
trial court as’ well as by the High Court after the 1964 Act
came into force but before the,
1027
1969 amendment. The decree was correctly passed in ac-
cordance with the provisions of the 1964 Act, since the
amendments were prospective and not retrospective. [1036 E-
F]
.rm60
(1) A statute has to be looked into for the general
scope and purview of the statute and at the remedy sought to
be applied. In that connection the former state of law is
to be considered and also the legislative changes
contemplated by the statute. Words not requiring
retrospective operation so as to affect an existing
statutory provision prejudicially ought not to be so
construed. It is a general rule that when the legislature
alters the rights of the parties by taking away or
conferring any right of action, its enactments.unless in
express terms they apply to pending actions, do not affect
them. If however, a statute deals merely with procedure in
an action and does not affect the rights of the
parties, it will be held to apply prima facie to all
actions pending as well as future. [1033 E-G]
Gardner v. Lucas (1878) 3 Appeals Cases 582; Moon
v.Durden (1948) 2 Exch.22 and Smithies v. National Union of
Operative Plasterers (1909) 1 K.B. 310, referred to.
(2) The entire land leased out does not come within the
definition of plantation, because. the extent of coffee
cultivated area has been found to have dwindled to about 100
acres out of the total extent of about 550 acres by reason
of the acts of waste committed by the appellant and ceased
to be a plantation even before 1 January 1970. The appel-
lant, however, is disentitled to take advantage of his own
wrongs so as to claim statutory benefits which were also not
available to him. [1033 A-B, E-G]
(3) The appellant had been found to be habitual defaulter
since 1952 in the payment of rent and to be guilty of wilful
acts of waste before and after the institution of the suit.
He had denuded the entire tree growth in morethan one half
of the area and destroyed more than one half of the coffee
planted area, and the remaining part was in an utterly
neglected condition. Therefore. under s. 23. Malabar Tenan-
cy Act, the appellant had no fixity of tenure on 21 Janu-
ary 1961, and hence was not entitled to the benefit of
proviso to s. 3(1) either under the 1964 Act or the 1969-
Act. [1032 G-H, 1034.B-D)]
(4) The respondent was a Government company. Under s.
3(1)(i) of the 1964 Act, leases of lands owned by Government
companies are exempted from the provisions of Chap. II.
Section 13, which is in Chap. II and which provides for
fixity of tenure cannot therefore be invoiced. by the appel-
lant for claiming ’fixity, of tenure under the 1964 Act.
[1033 C-D]
(5) The appellant is disentitled from invoking ss. 50A,
52 and 73 of the 1964 Act as amended in 1969 because, Chap-
ter 1I of the 1964 Act is not applicable to the lease
since the respondent lessor iS a Government Company. More-
over, these sections came into effect on 1st January 1970
and were not retrospective, but were. prospective in. opera-
tion. [1032 A-D, 1033 H, 1036 A-B]
(6) Sect.ion 108(3) of the Act as amended in 1971 will
permit the opening of the decree only if a person has claims
to a right benefit or remedy which has been conferred on him
under the Act. In the present case neither under the 1964
Act nor under the 1969 Amendment the. appellant can claim
the benefit of s. 50A because he wilfully misused the hold-
ing and caused acts of waste causing loss to the lessor and
damage and destruction to the holding.
[1033 H, 1034 A-B]
(7) Section 125(1) of the Act which came into force on
1 January 1970, creates bar against the civil court deciding
questions required to be settled by the Land Board. This
provision is prospective. and the proviso expressly states
that the section shall not apply to proceedings pending in
any court at the commencement of the 1969 amending Act.
It, therefore, follows that the proceedings in the present
case which were pending at the commencement of the 1969
Amendment Act are saved from the operation of s. 125(1).
Section 125(3) is equally prospective. It will be applied
with regard to the provisions contained in s. 125(1) of
the Act. Matters which will be within the mischief of s.
125(1) are matters which will arise in suits or proceedings
initiated or originated after the commencement of the Act.
It is unsound to
1028
suggest that pending proceedings which are exempt from the
application of s. 125(1) will yet fall within that sub-
section by reference to s. 125(3).
Therefore, the provisions contained in s. 125 are not
applicable in the present case. [1034 G-H, 1035 A-E]
Anantha Narayana Iyer v. Pran 1976 K.L.T. 403, over-
ruled.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1343 of
1969.
From the Judgment and Decree dated 17-2-1969 of the
Kerala High Court in Appeal Suit No. 493 of 1966.
S.T. Desai, S. Krishan Iyer and A.G. Puddisery, for the
Appellant.
T.S. Krishnamoorthy Iyer, K.P.K. Menon, I. N. Shroff
and R.P. Kapoor, for the Respondent.
The Judgment of the Court was delivered by
RAY, C.J. This appeal is by certificate from the judg-
ment dated 17 February, 1969 of the High Court of Kerala.
The respondent filed this suit against the appellant for
recovery of property with arrears of rent and mesne profits
and damages for waste.
The property measuring 550.37 acres consisted of 279.86
acres of planted area and the rest was unplanted area.
By a lease dated 7 October, 1950, the. respondent leased
out to the appellant the plantations together with Bungalow,
quarters of what is described as "Beenachi Estate". The
lease was for a period of 12 years with effect from 1 Janu-
ary, 1950. The rent for the first six years was fixed at
Rs. 3600/- per annum. The rent for the second period of six
years was fixed at Rs. 4500/- per annum. The rent was
payable in advance on 1 January of each calendar year.
The respondent’s case is that since 1953 the appellant
failed and neglected to pay rent fixed under the lease.
Clause 4 of the lease provided that if the rent would be in
arrears and unpaid for 30 days after the same would become
due it would be lawful for the lessor respondent to forfeit
the lease notwithstanding the fact that the term had not
expired. The lease provided that the respondent lessor
would re-enter the premises in that event and the lease
would cease and determine. The respondant by notice dated 5
March, 1959 called upon the appellant to quit, vacate and
deliver to the respondent vacant possession of the property.
The notice was consequent upon the wilful default of the
appellant to pay rent and consequent on the several breaches
of covenants as alleged in the notice.
The respondent filed the suit on 5 February, 1960. The
defendant claimed possession of the property known as the
Beenachi Estate together with movable, a declaration that
the lease had determined and -claimed arrears of rent, mesne
profits a sum of Rs. 2,20,394/- as ’damages for waste.
At the trial the appellant raised the plea that the
tenancy is governed by the Malabar Tenancy Act, and, there-
fore, the suit is barred by Act 1 of 1957. The respondent
pleaded that the tenancy
1029
is covered by exception in section 2(1 ) of the Malabar
Tenancy Act VII of 1954. The trial Court accepted the
preliminary objection of the appellant and dismissed the
suit.
The High Court on appeal remanded the case tO the Subor-
dinate Judge for fresh trial. The trial Court on remand
decreed the suit on 25 October, 1966. The respondent ob-
tained a decree for eviction with arrears of rent and dam-
ages amounting to Rs. 1,00,000/- for certain items and a
further sum of Rs. 51,030/- for other items of damages. The
trial COurt held that in view of the proviso to section 3(1)
(vii) of the Kerala Land Reforms Act I of 1964 hereinaf-
ter referred to as the 1964 Act a tenant having fixity of
tenure under the Act as it stood on 21 January 1961 would
continue to enjoy it under the 1964 Act notwithstanding the
fact that the landlord might be a corporation owned or
controlled by the Government of India or by any State Gov-
ernment in India .as provided in section 3(1) (c) of the
1964 Act. The appellant was held by the trial Court to be
disentitled to resist the prayer for eviction in ’the suit
because his holding was a plantation exceeding 30 acres in
extent as provided in section 3(1) (vii) of the 1964 Act.
The appellant filed an appeal. The respondent filed cross
objections. The High Court dismissed the appellant’s appeal
and allowed the cross objections of the respondent. The
High Court enhanced the damages from Rs. 1,00,000/- to Rs.
2,20,394/- and confirmed the award of Rs. 51,030/- as
damages under other heads.
Counsel for the appellant contended that the High Court
was in error in taking the view that the appellant was not
entitled to claim fixity of tenure. Counsel for the
appellant relied on section 3(1) (vii)of the 1964 Act as
amended by Act 35 of 1969. Before the 1969 Amendment the
1964 Act provided in clause (vii) to section 3(1) that
nothing in this Chapter shall apply to clauses (i) to (vii)
of section 3 to the rights of persons who were entitled to
fixity of tenure immediately before 21 January 1961 under
any law then in force. The aforesaid proviso was substitut-
ed by the Amendment Act 35 of 1969 as follows :--
"Provided that nothing in clauses (i)to
(vii) shall apply in the cases of persons who
were entitled to fixity of tenure immediately
before 21 January 1961 under any law then in
force or persons claiming under .such
persons".
The High Court held that only rights of persons but not
fixity of tenure were saved.
Counsel for the appellant contended that the effect of
proviso to section 3(1) (vii) of the 1964 Act as amended in
1969 is that fixity of tenure and rights with regard to the
same are both saved, and, therefore, the High Court should
have held that the appellant was entitled to fixity of
tenure.
The second contention of counsel for the appellant is
that the High Court was in error in holding. that under
section 23 of the Malabar Tenancy Act 1929 the appellant was
liable to be evicted by the landlord and that the appellant
had no right to resist eviction.
1030
The contention of the appellant was that assuming the High
Court was right on the above conclusion, the provisions
contained in section 108 sub-sections (2) and (3) of the
1964 Act as amended in. 1969 require the Court. to apply the
law retrospectively in respect of pending suits, appeals,
applications, decree where dispossession had not been ef-
fected. It is said by the appellant that the relevant
date .for the application of these sub-sections was 1 Janu-
ary 1970 on which, date the 1969 Amendment Act came into
force. It is contended on. behalf of the appellant that the
appellant had not been dispossessed from the property on or
before 1 January, 1970, but only an order appointing Receiv-
er was made by the. High Court on 17 February, 1969. The
property, therefore, according to the appellant, continued
to be on lease and the order appointing Receiver could not
have the affect of dispossession. The appellant, therefore,
under section 108(2) of the 1964 Act claimed to have the
decree reopened for disposal in accordance with section
125(3) of the 1964 Act as amended in 1969 Section 108(2) of
the 1964 Act as amended is as follows :--
"Any decree passed before the commencement
of this section for the dispossession of a
person from the land in his possession, pursu-
ant to which dispossession has not been af-
fected, may, on the application of such per-
son, be reopened and the matter may be dis-
posed of in accordance with the provisions of
the principal Act as amended by this Act.
By the principal Act is .meant the 1964 Act. Section 125(3)
of the 1964 Act as amended in 1969 is as follows :--
"If any suit or other proceeding in ques-
tion regarding rights of a tenant or of a
kudikidappukaran (including a question as to
whether a person is a tenant or a kudikidappu-
karan) arises, the civil court shall stay the
suit or other proceeding and refer such ques-
tion to the Land Tribunal having jurisdiction
over the area in which the land or part there-
of is situate together with the relevant
records for the decision of that question
only".
Extracting these provisions counsel for the appellant
contended that section 125(3) of the 1964 ACt as amended in
1969 indicated that all questions regarding rights of ten-
ants could be decided only by the Land Tribunal to which a
reference has to be made.
The third contention on behalf of. the appellant is that
the 1964 Act as amended in 1969 inserted section 50A to the
1964 Act the effect of which is that notwithstanding any-
thing contained in any law or contract, or in any judgment,
decree or order of court, a tenant. entitled to fixity of
tenure shall have the right to use his holding in any manner
he thinks fit. The 1964 Act as amended in 1969 introduced
section 52 which was. also relied on by the appellant, to
show that the cultivating tenant shall have a right to cut
such trees and the landlord or the intermediary shall not
have the right to cut any such trees. Section 73 of the
1964 Act which was introduced in 1969 is to the effect that
the maximum amount that could be claimed by
1031
way of arrears of rent for the period ending May 1968
notwithstanding any contract, judgment or order of court is
only 3 years and nothing more.
These provisions, viz., Sections 50-A, 52 and 73 which
were introduced by the 1969 Amendment Act were relied on by
the appellant for the purpose of showing that the appellant
would be entitled to use the holding and to cut trees and
the maximum arrears of rent could be claimed for a period of
three years and not more.
Counsel for the appellant next contended that the trial
Court was in error in finding that the holding of the appel-
lant is a plantation in the context of section 3(1) (viii)
of the 1964 Act. The contention on behalf of the appellant
was that assuming that the trial Court was right in its
conclusion as regards the area of 279.86 acres which accord-
ing to the respondent was the extent of coffee
plantation .on the date of the lease, in respect of the
remaining extent of land the appellant was entitled to
fixity of tenure in view of the proviso to clause 3(1)(viii)
of the 1964 Act.
The crucial date according to the appellant is 1 January
1970 when the 1969 Amendment Act came into force. The
effect of section 108(2) and (3) of the 1964 Act read with
section 125(3) of the Act is according to the appellant,
that the questions as to whether ’the whole or portion of
the land is a plantation, whether there is fixity of tenure
and whether the respondent can claim damages could all be
disposed of only by the Land Tribunal. The appellant con-
tended that the judgment of the High Court has, therefore,
to be set aside and this Court should direct that the mat-
ters may be disposed’ of by the Land Tribunal.
As a corollary counsel for the appellant contended that
the trial Court was wrong in holding that the appellant was
liable to pay damages and in view of the provisions con-
tained in sections 50-A and 52 of the 1964 Act as amended
in 1969 read which section 125(3) of the Act as amended all
matters would be decided by the Land Tribunal.
Counsel for the appellant relied on section 108(3) of
the Act which as changed by amendment in 1971 is as follows
:--
"If in any suit, application, appeal,
revision, review, proceedings in execution of
a decree or other proceedings pending at the
commencement of this section before any court,
tribunal, officer or other authority, any
person claims any benefit, right or remedy
conferred by any of the provisions of the
principal Act, or the principal ,Act as amend-
ed by this Act, such suit, application, ap-
peal, revision, review, proceedings in execu-
tion or other proceedings shall be disposed of
in accordance with the provisions of the
principal Act as amended by the 1971 Act."
In short the contention of the appellant is that’ the
whole proceedings in the suit and the pleas therein are to
be disposed of in accordance with the provisions’ of the
Act. According to the appellant the provisions of the Act
indicate that there should not be
1032
any decree for eviction and .further that the damages award-
ed against the appellant cannot be sustained by the provi-
sions of the 1964 Act as amended by Act 35 of 1969, Act 25
of 1971 and Act 17 of 1972.
The appellant filed an application praying for reopen-
ing the decree passed by the High Court and in that behalf
has invoked section 132(3) of the 1964 Act and section
108(2) of the Act as amended in 1969. The appellant also
prayed that section 108(3) as introduced in 1969 and as
amended in 1971 indicates that the appeal is to be disposed
of in accordance with the provisions of the appeal is as
amended in 1971.
Section 132(3) of the 1964 Act is as follows :-
"Notwithstanding the repeal of the
enactments mentioned in sub-section (2) any
decree passed before. the commencement of this
Act for the eviction of a tenant from his
holding, pursuant to which eviction has not
been effected, may, on the application of the
tenant or the landlord, be reopened and the
matter may be disposed of in accordance with
the provisions of this Act."
This provision according to the appellant establishes
that it applies to decree passed before the commencement of
Act 1 of 1964 and also pursuant to which eviction has not
been effected.
In the present case, the decree was passed by the trial
Court as well as by the High Court after the 1964 Act came
into existence. The decree was passed in accordance with the
provisions of the 1964 Act but before the amendment in 1969.
The appellant claimed benefit of the proviso to section 3
(1) (vii)of the Act. The benefit claimed is fixity of ten-
ure. The proviso as it stood when the 1964 Act came into
operation was that nothing in clauses (i) to (vii) of sec-
tion 3 (1) of the Act "shall affect the rights of persons
who are entitled to the fixity of tenure immediately before
21 January 1961 under any law then in force". The change
Substituted by the 1969 Amendment Act is that nothing in
clauses (i) to (vii) of section 3(1) of the Act "shall apply
in the case of persons who were entitled to fixity of tenure
immediately before 21 January 1961 under any law then in
force or persons claiming under such persons". The prevail-
ing law on 21 January 1961 was the Malabar Tenancy Act. If,
therefore, the appellant did not or could not have fixity of
tenure on 21 January 1961 under the Malabar Tenancy Act he
would not have any claim to the benefit of fixity of tenure
under the 1964 Act or even under the 1964 Act as amended in
1969. Under section 23 of the Malabar Tenancy Act a Verum-
pattom tenant would be liable to be evicted from his holding
at the instance of his landlord if ’he intentionally commit-
ted acts of waste sufficient to impair materially the
value or utility of the holding for the, purpose for which
it was let to him or that he committed default in the pay-
ment of stipulated rent for more than 3 months after its due
date, or allowed strangers to trespass upon the holding. In
the present case,. the appellant has been found to be a
habitual defaulter since 1952 in the payment of rent fixed
under the lease of 1950 under which the
1033
appellant was let into possession of the estate. Further
the appellant has been found to be guilty of willful acts of
waste before and after the institution of the suit. The
appellant has also been found to have denuded the entire
tree growth in more than one half of the area of the estate.
The appellant has been found to have destroyed more than
one half of the coffee planted area that had been leased to
him.It was found that the remaining part of the coffee
plantation as a result of the acts of the appellant is in
utterly neglected condition.
The facts circumstances of the present case as found
by the courts establish that the appellant had no fixity of
tenure on 21 January 1961 warranting grant of any benefit,
remedy or right against eviction. In fact, this claim was
also canvassed by the appellant and found against him by the
court.
The respondent in the present case is a Corporation owned or
controlled by the Government of Madhya Pradesh and, is,
therefore, a Government company under the Indian Companies
Act. The appellant is disentitled to claim fixity of tenure
under section 13 of the Act inasmuch as under the 1964 Act
and under amendment in 1969 leases of lands owned by the
Government owned Companies are by section 3(1) (i) of the
1,964 Act specifically exempted from the provisions of Chap-
ter II of the Act. Section 13 which is in Chapter 1I
cannot therefore, be invoked by the appellant. The right to
fixity of tenure is denied to a tenant in respect of a
holding owned by or belonging to a Government controlled
CompanY. The appellant is, therefore, not entitled to claim
fixity of tenure under the 1964 Act as amended.
The Beenachi Estate in the present case does not come
within the definition of "plantation" in section 2(44) of
the 1964 Act as amended in 1969 because the extent of coffee
cultivated area has been found by the court to have dwindled
to a little over 110 acres in extent out of the total extent
of a little over 550 acres. Further, tapioca has been grown
by the Receiver in the areas other than the coffee planted
area. Therefore, the Estate ceased to be a property princi-
pally planted with coffee even before 1 January 1970 when
the 1969 Amendment Act came into force. Under the lease the
coffee planted area was 279.86 acres and the remaining
extent of 271 acres was also intended to be extended area to
be planted with coffee. The courts have found that instead
of coffee plantation the appellant deliberately committed
waste during the progress of litigation in the courts by
reducing the extent of coffee plantation to just 168.58
acres. This area dwindled to little over 110 acres before
2 March 1969 when the Receiver was appointed by the High
Court. The .large extent of vacant areas within the estate
was on account of deliberate devastation of the said area by
denudation of tree growth during the pendency of the litiga-
tion in the courts.Therefore, it"is obvious that the
appellant is dis-entitled to take advantage of his own
wrongs so as to claim statutory benefits which are also not
available to the appellant. The property by reason of acts
of waste, damage, devastation, denudation Ceased to be
coffee plantation on 1 January 1970 when the 1969 Amendment
came into effect.
Section 108(3) of the Act as amended in 1971’ will permit
the reopening of the decree only if a person has claims to
right, benefit or
1034
remedy which has been conferred on him under the Act. In the
present case neither under the Act of 1964 nor under the
1969 Amendment Act the appellant can claim the benefit of
section 50-A of the 1964 Act as amended in 1969 because the
appellant willully misused the holding and caused acts of
waste causing loss ’to the lessor and damage and destruction
to the holding.
The High Court rightly held that under the proviso to
clauses (i) to (vii) of section 3(1) of the 1964 Act the
appellant had no right to fixity of tenure under the Malabar
Tenancy Act. Section 23 of the Malabar Tenancy Act con-
ferred a right on the landlord to evict the tenant who
intentionally and wilfully committed such acts of waste as
are calculated to impair materially and permanently the
value or utility of the holding for agricultural purposes
and who has not paid within three months after the due date,
the whole or any portion of the rent due in respect of the
holding. The courts found the defendant to be guilty of
wilful waste prior to the institution of the suit and during
the pendency of the suit and further that the appellant
committed default in payment of rent for seven years.
Therefore, the appellant was not entitled to any rights .of
fixity of tenure under the proviso to clauses (i) to (vii)
of section 3(1) of the 1964 Act is to be interpreted in the
light of the provisions of-the Malabar Tenancy Act in the
present case.
The appellant invokes the provisions contained in sec-
tion 125(3) of the Act for the purpose of determination in
accordance with the provisions of the Act benefits, rights
or remedies conferred by the Act and claimed by him are
fixity of tenure, remedy against eviction and remedy against
payment of damages and arrears of rent. The appellant also
invokes the provisions contained in section 108(2) and (3)
of the Act for the purpose of reopening of the decree and
disposal of the same in accordance with the provisions of
the Act on the same ground that the appellant claims bene-
fits, rights and remedies conferred on him by the provisions
of the Act.
Counsel for the appellant relied on the Full Bench
decision of the Kerala High Court in Anantha Narayana Iyer
v. Pran(1) in support of the contention that by reason of
the provisions contained in section 125(3) of the Act the
appeals_should be disposed of in accordance with the provi-
sions of the Act.
.
Section 125 (1 ) of the Act created a bar against civil
court to settle, decide or deal with the questions required
to be settled by the Land Board in accordance with the
provisions of the Act. The provisions contained in section
125(1) of the Act are prospective. Section 125 came into
effect on 1 January, 1970 when the other amendments intro-
duced by the 1969 Amendment Act came into force. The provi-
so to section 125(1) of the Act expressly states that Sec-
tion 125(1) of the Act shall not apply to proceedings pend-
ing in any court at the commencement of the Amendment Act of
1969 on 1 January, 1970. The effect of the proviso is to
carve out by way of exception what would otherwise have
fallen within the provision to which it is a proviso. It,
therefore, follows that the proceedings in the present case
which were pending at the commencement of the Amendment Act
on 1 January,
(1) (1976) K.L.T. 403.
1035
1970 are saved from the operation of section 125(1) of the
Act. In short, the proceedings are to be determined by the
civil court.
Section 125(3) of the Act which provides that if in any
suit or other proceeding any question regarding the rights
of a tenant arises the civil court shall stay the suit and
refer such question to the Land Tribunal having jurisdiction
over the area in which the land or the part thereof is
situate for the decision of that question only. The appel-
lant relied on the Kerala Full Bench decision which held
that section 125(3) of the Act as amended in 1969 is retro-
spective, and, therefore,. proceedings should be determined
by the Land Tribunal. The reason given by the Kerala High
Court is that the suit or proceeding must be pending at the
commencement of the Amendment Act 1969 before the provisions
contained in section 125(3) of the Act can be applied. The
Kerala High Court has, therefore, concluded that suit or
other proceeding which is pending at the commencement of the
Act will be governed by section 125(3) of the Act. This
reasoning is not correct.
Section 125(3) of the Act is equally prospective.
Section 125(3) of the Act will be applied with regard to the
provisions contained in section 125(1) of the Act. Matters
which will be within the mischief of section 125(1) of the
Act are matters which will arise in suits or proceedings
initiated and originated after the commencement of the Act.
It is unsound to suggest that pending proceedings which are
excepted from the application of section 125 (1) of the Act
will yet fall within section 125(1) of the Act by reference
to section 125(3) of the Act. The Kerala High Court fell
into the error of overlooking the purpose of section 125(3)
of the Act. The purpose is that suit or other proceeding
shall be stayed. In the present case the appeal in this
Court which was pending on 1 January 1970 is a proceeding
which was pending at the commencement of the Act and was not
initiated or originated at the commencement of the Act.
Therefore, the provisions contained in section 125 are not
applicable in the present case.
A statute has to be looked into for the general scope
and purview of the statute and at the remedy sought to be
applied. In that connection the former state of the law is
to be considered and also the legislative changes contem-
plated by the statute. Words not requiring retrospective
operation so as to effect an existing statutory provision
prejudicially ought not be so construed. It is a well
recognised rule that statute should be interpreted if
possible so as to respect vested rights. Where the effect
would be to alter a transaction already entered into, where
it would be to make that valid which was previously invalid,
to make an instrument which had no effect at all, and from
which the party was at liberty to depart as long as he
pleased, binding, the prima facie construction of the Act is
that it is not to be retrospective. See Gardner v.
Lucas.(1)
In Moon v. Durden(2) a question arose as to whether
section 18 of the Gaming Act 1845 which came into effect in
August 1845 was retrospective so as to defeat an action
which had been commenced in
(1) (1878) 3 A.C. 582. (2) (1848) 2 Exch. 22.
16--1338SCI/76
1036
June, 1845. The relevant section provided that no suit
shall be brought or maintained for recovering any such sum
of money alleged to have been won upon a wager. It was held
that it was not retrospective. Parke B said "It seems a
strong thing to hold that the legislature could have meant
that a party who under a contract made prior to the Act had
as perfect a title to recover a sum of money as he had to
any of his personal property, should be totally deprived of
it without compensation".
Again in Smithies v. National Union of Operative Plas-
terers(2) section 4 of the Trade Disputes Act, 1906 which
enacted that an action for tort against a trade union shall
not be entertained by any court was held not to prevent the
court’s from hearing and giving judgment in. actions of that
kind begun before the passing of the Act. It is a gener-
al rule that the legislature alters the rights of parties by
taking away or conferring any right of action, its enact-
ments, unless in express terms they apply to pending ac-
tions, do not affect them. But there is an exception to this
rule, namely, where enactments merely affect procedure and
do not extend to rights of section. See Re Joseph Sucha &
Co. Ltd.(2). If the legislature forms a new procedure
alteration in the form of procedure are retrospective unless
there is some good reason or other why they should not be.
In other words, if a statute deals merely with the procedure
in an action, and does not affect the rights or the parties
it will be held to apply prima facie to all actions, pending
as well as future.
In the present case the provisions in section 50-A, 52
and 73 of the 1964 Act as amended in 1969 were invoked by
the appellant. The appellant is disentitled from doing so
by reason of Chapter II of the 1964 Act not being applicable
to the lease where the lessor is a Government Company.
Further these sections came toto effect on 1 January 1970.
The sections are not retrospective but prospective in opera-
tion. The appellant is not entitled to attract these sec-
tions.
For the foregoing reasons the appeal is dismissed with
costs.
V.P.S. Appeal dismissed.
(1) [1909] 1 K.B. 310. (2) (1875) 1 Ch. 48.
1037