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The Special Tahsildar for Land Acquisition, Kozhikode-i and ors. Vs. F. ShamsudIn and Bros. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 625 of 1969 and Original Petn. No. 5201 of 1968
Judge
Reported inAIR1970Ker301
ActsKerala Land Acquisition Act, 1961 - Sections 62; Kerala Interpretation and General Clauses Act, 1125 - Sections 2(2), 4 and 23; Travancore Land Acquisition Act; Central Land Acquisition Act; Madras Land Acquisition (Amendment) Act, 1948; Madras Land Acquisition (Amendment) Act, 1953
AppellantThe Special Tahsildar for Land Acquisition, Kozhikode-i and ors.
RespondentF. ShamsudIn and Bros.
Appellant Advocate Govt Pleader in W.A. No. 625 of 1969 and; Joseph Augustine, Adv. in O.P. No. 5201 of 1968
Respondent Advocate Mathew Muricken, Adv. in W.A. No. 625 of 1969 and;Govt. Pleader in O.P. No. 5201 of 1968
Cases ReferredHarish Chandra v. State of Madhya Pra
Excerpt:
.....good sense. this is a result which in its practical consequences could well be characterised as absurd, and, therefore, we think that, in the context of section 23 of the (kerala) interpretation and general clauses act the word, act' must be read as meaning any act which the kerala legislature has the power to replace. at best it can only be said that the assent of the president having been given to the kerala act, it prevails over the acts it replaced by virtue of the provisions of clause (2) of article 254 of the constitution......interpretation and general clauses act the word, 'act' must be read as meaning any act which the kerala legislature has the power to replace. the definition given in section 2 (3), in so far as it excludes the central act would be repugnant to the subject and context of section 23.9. the other impediment is based on the observation in zaverbhai v. state of bombay, air 1954 sc 752 at p. 756 to the effect that a state legislature has not the power to repeal an existing law on a concurrent subject and that parliament itself is given this power only by the proviso to clause (2) of article 254 of the constitution. therefore, it is said, that, whatever section 62 of the kerala act might say, none of the acts which it replaced was in fact repealed, all of them being existing laws in the.....
Judgment:

Raman Nayar, C.J.

1. The Kerala Land Acquisition Act, 1961 (Act 21 of 1962) which came into force on the 1st April, 1963, replaced the laws till then in force in this State regarding the acquisition of property, namely, the (Travancore) Land Acquisition Act, 1089 in force in what we might call the Travancore area, the (Cochin) Land Acquisition Act, 1070 in force in the Cochin area, and the (Central) Land Acquisition Act. 1894 (as amended by Madras Acts XXI of 1948 and XII of 1953) in force in the Malabar area. (We shall refer to the first mentioned Act as the Kerala Act; to the second as the Travancore Act; to the third as the Cochin Act; and to the last as the Central Act). Section 62 of the Kerala Act says that the Travancore and Cochin Acts are repealed; with regard to the Central Act it says that that Act shall cease to apply to the Malabar area. The question in these cases is whether land acquisition proceedings commenced under the replaced enactments can be continued at all, whether under the replaced or the replacing enactment, or have to be begun afresh.

2. In Gopinatha Pillai v. The State of Kerala, 1968 Ker LJ 1 a single judge of this Court held that such proceedings could not be continued either under the replaced enactment or under the replacing enactment. That was with regard to a case where proceedings had been begun under the Travancore Act and were continued, at any rate purported to be continued, under the Kerala Act. On appeal--See State of Kerala v. Padmanabhan Asari Kunju, 1969 Ker LJ 389, a division bench of this Court affirmed that the proceedings could not be continued under the replacing enactment, namely, the Kerala Act, but left open the question whether they could be continued under the replaced enactment, namely, the Travancore Act, although it appears to us that that question really fell to be decided having regard to the contention taken and repelled by the learned single judge that the further proceedings taken in that case though purportedly taken under the Kerala Act were in accord with the provisions of the Travancore Act under which they could have been continued, and should be regarded as having been really taken under that latter Act, the mistaken references to the provisions of the Kerala Act notwithstanding. However, in the earlier case of Anthony v. State of Kerala, ILR (1966) 2 Ker 631 which dealt, with a case where proceedings were begun under the Cochin Act, a single judge of this Court had held that the proceedings could be continued under the provisions of the Kerala Act, although we should think that, having regard to the fact that this conclusion was reached by an application of Section 4 only of the (Kerala) Interpretation and General Clauses Act and not of Section 23 as well (Sections 6 and 24 respectively of the General Clauses Act, 1897) the decision should have been that they could be continued under the provisions of the Cochin Act.

3. It is because of these conflicting views that the present cases have come up before us--it would appear that ILR (1966) 2 Ker 631 was not taken to the notice of the judges who decided the later cases of 1968 Ker LJ 1 and 1969 Ker LJ 389.

4. It would be an unsatisfactory state of affairs, hardly in consonance with practical commonsense, or what one must presume to be the legislative intent, if proceedings commenced under the replaced enactments could not be continued either under those enactments or under the Kerala Act. The Kerala Act does not take away any rights or affect any of the safeguards conferred by the replaced enactments; and the petitioners in the cases before us have not been able to show that the continuance of the proceedings (instead of their being begun afresh under the provisions of the Kerala Act) prejudices them in the least. Of course, like most persons whose land is being acquired they do not like the acquisition and would like to keep their land. That however, is a grievance against the very idea of compulsory acquisition which can hardly face a valid law for acquisition; and counsel have been frank enough to own that the petitioners are seeking to place every legal obstacle they possibly can in the way of an acquisition which they do not relish so as to delay if not to defeat it altogether. That is certainly not an object to be encouraged; and, that object apart, to require that the proceedings should be begun afresh would mean a purposeless duplication of work with consequent delay and unnecessary expense. That in times or rising prices or fall in the value of money like the present, the landowners will get higher compensation (with corresponding prejudice to the public purse) if proceedings are begun afresh is no more a relevant consideration than that in times of falling prices -- and there were such times in living memory--the landowners would get lower compensation (with corresponding benefit to the public purse). If there be a rejudice at all it is a prejudice occasioned by the compulsory acquisition, not by the continuance of the proceedings begun under the replaced enactments.

5. In our view, sections 4 and 23 of the (Kerala) Interpretation and General Clauses Act meet the situation and allow of the proceedings being continued under the Kerala Act. Section 4 which applies as much to a repeal and re-enactment as to a mere repeal (see State of Punjab v. Mohar Singh, AIR 1955 SC 84 and Baliah v. Rangachari, AIR 1969 SC 701) preserves rights accrued under the repealed enactment, and, in the case of a mere repeal enables the prosecution of a proceeding in respect of any such right as if there had been no repeal. But, where the repeal is accompanied by a re-enactment, section 23 also applies, and, by providing that certain things done under the repealed Act shall be deemed to be done under the corresponding re-enacted provisions enables pending proceedings to be continued under the re-enacting Act. We are here more concerned with section 23 which reads:

'23. Continuation of orders, etc, issued under enactments repealed and re-enacted.--Where any Act is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act shall, so far as it is not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, form or bye-law made or issued under the provisions so re-enacted.'

6. When a temporary Act is allowed to expire, or when the Legislature repeals an Act without re-enacting it, it means that the Legislature considers that the law in question is no longer necessary. Therefore, it can reasonably be assumed that the Legislature intends that the law should thereafter be regarded as non-existent although its previous operation in respect of matters and transactions past and closed is not to be affected. But, when an Act that was not intended as a purely temporary measure is repealed, it would be equally reasonable to assume, unless a different intention appears, that there was no intention to affect rights and liabilities already accrued or the remedies for their enforcement. That is the rule embodied in Section 4 of the (Kerala) Interpretation and General Clauses Act (Section 6 of the General Clauses Act, 1897) which, apart from saving the past operation of a repealed statute, saves also accrued rights and liabilities as also the remedies for their enforcement. But, what happens when an Act is repealed and re-enacted, in other words when an Act is replaced by another in substantially the same terms, is altogether different. It must be regarded as the intention of the Legislature (unless, of course, it expressly states the contrary) that the law should continue in force without interruption except to the extent that it has been modified. The intention is really to amend the replaced Act so as to conform with the replacing Act--the repeal and re-enactment is no more than a convenient device for achieving this object where the changes are numerous. (We are thinking only of an express and deliberate replacement--the presumption of an intention to merely amend might not be so readily available in the case of the unconscious displacement of one law by another of superior force). That being so, it should follow that the intention of the Legislature could only be that things dose under the replaced Act should be deemed to have been done under the replacing Act and that proceedings commenced under the replaced Act should be continued under the replacing Act. Hence the rule of construction embodied in Section 23 of the (Kerala) Interpretation and General Clauses Act which can be displaced only by express provision to the contrary whereas that in Section 4 can be displaced by the mere appearance of a different intention. And it should be of no consequence by what name you call the process by which the operation of the replaced Act is notionally determined--we say notion-ally because, in truth, the replaced Act continues in force without interruption except to the extent that it has not been re-enacted -- whether you call it a repeal, a cessation or a suspension.

7. We might perhaps mention that it is not disputed that the Kerala Act confers jurisdiction on the very authorities as the replaced Acts did. Nor is it claimed that 'a different intention appears' in the Kerala Act within the meaning of Section 4 of the (Kerala) Interpretation and General Clauses Act or that it 'otherwise expressly provides' within the meaning of Section 23. And we might add that if that question arose we do not think we would have had much difficulty in holding that the right conferred on the appropriate Government by Sub-section (3) of Section 6 of the Central Act to acquire the land concerned in manner thereinafter appearing, in other words, for the amount of compensation fixed by the award, a right akin to a right of pre-emption or that conferred by an agreement to buy, is an accrued right.

8. This we think should suffice to surmount the two impediments which the petitioners herein would place in the way of practical good sense. The first impediment is founded on the definition of the word, 'Act' in Section 2 of the (Kerala) Interpretation and General Clauses Act:

2. Definitions. -- In this Act, and in all enactments now in force or passed after the commencement of this Act, unless there is anything repugnant in the subject or context--

XX XX XX(3) Act. -- 'Act' shall mean a Proclamation or Act of Travancore or Cochin, an Act or Ordinance of Travancore-Cochin, an Act passed by the Legislature of the State of Kerala, an Ordinance promulgated by the Governor under Article 213 of the Constitution, or where with respect to the State of Travancore-Cochin or Kerala the power to make laws is vested in the President or other authority under Sub-clause (a) of Clause (1) of Article 357 of the Constitution, any law made in exercise of such power. It is pointed out that, while the Travancore and Cochin Acts are included in this definition of 'Act', the Central Act is not, and that, therefore, Section 23 which opens with the words 'Where any Act is repealed and re-enacted with or without modification' cannot apply to the repeal and re-enactment (assuming there was that) of the Central Act. But it could not possibly have been the intention of the Legislature that while proceedings begun under the Travancore and Cochin Acts could be continued under the Kerala Act, proceedings begun under the Central Act could not be so continued but must be begun afresh. This is a result which in its practical consequences could well be characterised as absurd, and, therefore, we think that, in the context of Section 23 of the (Kerala) Interpretation and General Clauses Act the word, 'Act' must be read as meaning any Act which the Kerala Legislature has the power to replace. The definition given in Section 2 (3), in so far as it excludes the Central Act would be repugnant to the subject and context of Section 23.

9. The other impediment is based on the observation in Zaverbhai v. State of Bombay, AIR 1954 SC 752 at p. 756 to the effect that a State Legislature has not the power to repeal an existing law on a concurrent subject and that Parliament itself is given this power only by the proviso to Clause (2) of Article 254 of the Constitution. Therefore, it is said, that, whatever Section 62 of the Kerala Act might say, none of the Acts which it replaced was in fact repealed, all of them being existing laws in the concurrent field. At best it can only be said that the assent of the President having been given to the Kerala Act, it prevails over the Acts it replaced by virtue of the provisions of Clause (2) of Article 254 of the Constitution. The replaced Acts might have ceased to be in force--that indeed is what Section 62 of the Kerala Act says with reference to the Central Act--but they have only been eclipsed or suspended. They have not been repealed within the meaning of Section 23 of the (Kerala) Interpretation and General Clauses Act.

10. This contention, we think, can be met in the same way as we have met the first. Whether what has happened is strictly speaking a repeal or not, in the context of Section 23 of the (Kerala) Interpretation and Gneral Clauses Act the word, repeal' must be regarded as wide enough to include the supersession, at any rate the deliberate and conscious supersession, of one Act by another Act--as we have already remarked, in the case of a replacement, it does not matter what you (or the replacing Act) call the process by which the operation of the replaced Act is notionally determined. Authority for this proposition can be found in State of Orissa v. M. A. Tulloch and Co., AIR 1964 SC 1284 and in Ekambarappa v. E. P. T. Officer, AIR 1967 SC 1541 which lay down that when one Act ceases to have effect by reason of the enactment of another, the former Act is repealed within the meaning of Section 6 of the General Clauses Act, 1897. If that be a repeal within the meaning of Section 6 of that Act it should a fortiori be a repeal within the meaning of Section 24, in other words, within the meaning of Section 23 of the (Kerala) Interpretation and General Clauses Act.

11. For the 'Collector' it is contended that the observation in AIR 1954 SC 752 is but a casual observation and our attention has been drawn to what has been said in Saraswathi Amma v. Bhaskara Menon, 1960 Ker LT 1227 = (AIR 1961 Ker 154) and in Zoolficar Ah v. Official Trustee, (1967) 69 Bom LR 326. Also to the commentary by Seervai. It is said that the power to amend or repeal a law stems from the power to make; indeed an amendment or a repeal is itself a law. That power is conferred on the Legislatures in India not by Article 254 of the Constitution but by Article 246 read with Article 245. Article 254 only provides for a reconciliation of conflicting laws made by Parliament and by a State Legislature in the concurrent field, and the proviso to Clause (2) of the Article presupposes the existence of a power in Parliament to repeal any law in the concurrent field and only says, by way of abundant caution, that that power remains notwithstanding that a State law in that field has received the assent of the President and therefore prevails over an existing law or a law previously made by the Parliament regarding the same matter. Where two Legislatures are given concurrent powers regarding a matter, each has the power to repeal a law made by the other. Article 254 only regulates the consequences of the exercise of this power in order to avoid manifestly undesirable results. And, so far as existing laws, including existing laws in the concurrent field, are concerned, Article 372 speaks of their supersession by a competent Legislature--the State Legislature would be a competent Legislature--as a repeal.

12. So runs the argument. It is also pointed out that the observation in question was based on an observation by Lord Watson in Attorney-General for Ontario v. Attorney General for the Dominion, 1896 AC 348 made, it is said, not in the context of two Legislatures exercising concurrent powers but of one Legislature exercising power in respect of a matter within the province of another.

13. There is one other observation of the Supreme Court on which some reliance has been placed by the petitioners. That occurs in Harish Chandra v. State of Madhya Pra-desh, AIR 1965 SC 932 at p. 938 and seems to be to the effect that the principle underlying Section 24 of the General Clauses Act cannot be extended to cases where that section does not in terms apply. This it is contended on behalf of the 'Collector' was made not in the context of a Legislature expressly and deliberately replacing an Act by another similar in character, but in the context of a subordinate legislation made by one authority being displaced by a subordinate legislation made by another. The observation must be confined to its context; if it is given a wider application it would be contrary to what was held in AIR 1964 SC 1284.

14. In the view we have taken regarding the ambit of the word 'repeal' in Section 23 of the (Kerala) Interpretation and General Clauses Act, neither observation of the Supreme Court affects our conclusion. The words, 'repeal and re-enactment' are wide enough to cover what has happened here and we are applying the section itself, not extending the principle underlying it. Therefore we do not feel called upon to consider whether the observations in question are, as it is contended they are, mere casual observations not laying down the law.

15. In Writ Appeal No. 625 of 1969 the acquisition was on behalf of a registered society (and therefore a company within the meaning of the Central Act as also of the Kerala Act) and was for the purpose of running an educational institution. The proceedings were commenced under the Central Act, and, in view of what we have said, we hold that they can be continued, as was done, under the provisions of the Kerala Act. However, the learned single Judge who heard the writ petition brought by the owner of the land (a person who, we might observe, brought it in the course of the proceedings for acquisition, encouraged by the circumstance that similar petitions brought by other persons had been admitted and stay of proceedings granted) following the Division Bench ruling in 1969 Ker LJ 389 as he was bound to do, allowed the petition and quashed the proceedings purported to have Been taken under the Kerala Act. In the light of our holding we allow this appeal by the 'Collector' and dismiss the writ petition with costs both here and before the Single Judge,

16. We might perhaps add that the other contentions raised before the learned Single Judge, namely, that Section 17 of the Central Act was wrongly applied and that the consent under Section 40 (1) was wrongly given in the absence of a report by the Collector under Section 5-A, have been rightly repelled by the learned Single Judge in the light of the provisions or Section 17 as amended by Madras Act XXI of 1948 and in the light of the provisions of Section 40 itself. Indeed nothing has been said before us to suggest that he was wrong.

17. In O. P. No. 5201 of 1968, the land acquisition proceedings were commenced under the Cochin Act, and, after its replacement by the Kerala Act, have been continued under the Kerala Act. They have been rightly so continued and we dismiss this petition but make no order as to costs.

18. The petitioner in this petition has the complaint that orders passed by this Court in a previous writ petition filed by him have been disobeyed by the respondents. But a writ petition is not a means of enforcing previous orders of the Court or of dealing with such disobedience.


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