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K. Kapen Chako Vs. the Provident Investment Company (P) Ltd. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtSupreme Court of India
Decided On
Judge
Reported in(1977)1SCC593; [1977]1SCR1026
ActsMalabar Tenancy Act, 1930 - Sections 23; Kerala Land Reforms Act, 1964 - Sections 2(44), 3(1), 13, 50-A, 52, 73, 108(2), 108(3), 125, 125(1) and 125(3)
AppellantK. Kapen Chako
RespondentThe Provident Investment Company (P) Ltd.
Cases ReferredSmithies v. National Union of Operative Plasterers
Excerpt:
.....governed by malabar tenancy act - claimed protection under proviso to section 3 of - stated that fixity of tenure and rights with regard to same are both saved under said proviso - right to fixity of tenure not available to tenant in respect of holding owned by or belonging to government controlled company - held, appellant not entitled to claim fixity of tenure under act of 1964. - [e.s. venkataramiah and; k.n. singh, jj.] the appellant, a stage carriage operator, applied for renewal of a permit to ply his bus on a particular route but was granted only a temporary permit to do so. thereafter he applied for issue of a regular permit, but once again, action was initiated for issue of a temporary permit only. aggrieved by this approach of respondent no. 1, who was exercising the power..........of the kerala land reforms act i of 1964 hereinafter 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 government in india as provided in section 3(l)(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.9. 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.....
Judgment:

A.N. Ray, C.J.

1. This appeal is by certificate from the judgment dated 17 February, 1969 of the High Court of Kerala.

2. The respondent filed this suit against the appellant for recovery of property with arrears of rent and mesne profits and damages for waste.

3. The property measuring 550.37 acres consisted of 279.86 acres of planted area and the rest was unplanted area.

4. 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 January, 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.

5. 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 reenter the premises in that event and the lease would cease and determine. The respondent 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.

6. 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.

7. At the trial the appellant raised the plea that the tenancy is governed by the Malabar Tenancy Act, and, therefore, the suit is barred by Act 1 of 1957. The respondent pleaded that the tenancy 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.

8. The High Court on appeal remanded the case to the Subordinate Judge for fresh trial. The trial Court on remand decreed the suit on 25 October, 1966. The respondent obtained a decree for eviction with arrears of rent and damages 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 hereinafter 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 Government in India as provided in Section 3(l)(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.

9. 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.

10. 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 substituted 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.

11. The High Court held that only rights of persons but not fixity of tenure were saved.

12. 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.

13. 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. 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 effected. It is said by the appellant that the relevant date for the application of these Sub-sections was 1 January 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 Receiver 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, pursuant to which dispossession has not been affected, may, on the application of such person, be reopened and the matter may be disposed of in accordance with the provisions of the principal Act as amended by this Act.

14. 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 question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only.

15. 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 tenants could be decided only by the Land Tribunal to which a reference has to be made.

16. 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 anything 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 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.

17. 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.

18. Counsel for the appellant next contended that the trial Court was in error in finding that the holding of the appellant is a plantation in the context of Section 3(l)(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 according 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(l)(viii) of the 1964 Act.

19. 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 contended that the judgment of the High Court has, therefore, to be set aside and this Court should direct that the matters may be disposed of by the Land Tribunal.

20. 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 contained in Sections 50-A and 52 of the 1964 Act as amended in 1969 read with Section 125(3) of the Act as amended all matters would be decided by the Land Tribunal.

21. 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 amended by this Act, such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by the 1971 Act.

22. 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 any decree for eviction and further that the damages awarded against the appellant cannot be sustained by the provisions of the 1964 Act as amended by Act 35 of 1969, Act 25 of 1971 and Act 17 of 1972.

23. The appellant filed an application praying for reopening 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 1964 Act as amended in 1971.

24. 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.

25. 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.

26. 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.

27. The appellant claimed benefit of the proviso to Section 3(1) (vii) of the Act. The benefit claimed is fixity of tenure. The proviso as it stood when the 1964 Act came into operation was that nothing in Clauses (i) to (vii) of Section 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 prevailing 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 Verumpattom tenant would be liable to be evicted from his holding at the instance of his landlord if he intentionally committed 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 payment 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 appellant was let into possession of the estate. Further the appellant has been found to be guilty of wilful 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.

28. 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.

29. 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(l)(i) of the 1964 Act specifically exempted from the provisions of Chapter II of the Act. Section 13 which is in Chapter II 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.

30. 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 principally 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 litigation in the courts. Therefore, it is obvious that the appellant is disentitled 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 1.969 Amendment came into effect.

31. 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 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 wilfully misused the holding and caused acts of waste causing loss to the lessor and damage and destruction to the holding.

32. 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 conferred 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.

33. The appellant invokes the provisions contained in Section 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 benefits, rights and remedies conferred on him by the provisions of the Act.

34. Counsel for the appellant relied on the Full Bench decision of the Kerala High Court in Anantha Narayana Iyer v. Pran (1976) K.L.T. 403 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 provisions of the Act.

35. 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 introduced by the 1969 Amendment Act came into force. The proviso to Section 125(1) of the Act expressly states that Section 125(1) of the Act shall not apply to proceedings pending 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, 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.

36. 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 appellant relied on the Kerala Full Bench decision which held that Section 125(3) of the Act as amended in 1969 is retrospective, 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.

37. 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.

38. 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 contemplated 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. (1878) 3 A.C. 582

39. In Moon v. Durden (1848) 2 Exch. 22 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 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'.

40. Again in Smithies v. National Union of Operative Plasterers [1909] 1 K.B. 310 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 courts from hearing and giving judgment in actions of that kind begun before the passing of the Act. It is a general rule that the legislature alters the rights of 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. 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. (1875) 1 Ch. 48. 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 of the parties it will be held to apply prima facie to all actions, pending as we as future.

41. 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 into effect on 1 January 1970. The Sections are not retrospective but prospective in operation. The appellant is not entitled to attract these Sections.

42. For the foregoing reasons the appeal is dismissed with costs.


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