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Chembakave Vadakkekkara Lakshmi and ors. Vs. Nellisseri Gramam Narayanaswami Iyer and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKerala High Court
Decided On
Case NumberO.P. No. 2250 of 1961
Judge
Reported inAIR1963Ker330
ActsTenancy Law; Malabar Tenancy Act, 1930; Kerala Agrarian Relations Act, 1961; Constitution of India - Articles 13(1), 13(2), 14, 19 and 31; Malabar Tenancy Act, 1929 - Sections 95
AppellantChembakave Vadakkekkara Lakshmi and ors.
RespondentNellisseri Gramam Narayanaswami Iyer and ors.
Appellant Advocate V.R. Krishna Iyer and; A.K. Srinivasan, Advs.
Respondent Advocate A.S. Krishna Iyer,; N.N. Venkatachalam and; A.K. Ramases
Cases ReferredLtd. v. State of Madras
Excerpt:
constitution - interpretation - articles 13 (1) and 13 (2) of constitution of india, kerala agrarian relations act, 1961 and malabar tenancy act, 1929 - act applicable to malabar area to deal with ryotwari land - act of 1961 which repeal and amend malabar tenancy act declared ultra vires to constitution by court - such act being void ab initio malabar tenancy act would govern ryotwari land in malabar area. - - 1. the short but interesting question that arises for consideration in this writ petition is as to the effect of the striking down, as unconstitutional by this court of the kerala agrarian relations act, 1960, kerala act 4 of 1961, on the repeal, effected by this statute, of the malabar tenancy act, 1929, madras act 14 of 1930, as amended from time to time. s, krishna' iyer,.....c.a. vaidiallingam, j. 1. the short but interesting question that arises for consideration in this writ petition is as to the effect of the striking down, as unconstitutional by this court of the kerala agrarian relations act, 1960, kerala act 4 of 1961, on the repeal, effected by this statute, of the malabar tenancy act, 1929, madras act 14 of 1930, as amended from time to time. that depends upon the construction to be placed on article 13(2) of the constitution.p. the question arises this way. the malabar tenancy act, 1929, enacted no doubt by the madras legislature, was in force, in what i maycompendiously call the malabar area, and also portions of the south kanara district which became part of the kerala state after the states reorganisation. jn fact, the preamble to the malabar.....
Judgment:

C.A. Vaidiallingam, J.

1. The short but interesting question that arises for consideration in this writ petition is as to the effect of the striking down, as unconstitutional by this Court of the Kerala Agrarian Relations Act, 1960, Kerala Act 4 of 1961, on the repeal, effected by this Statute, of the Malabar Tenancy Act, 1929, Madras Act 14 of 1930, as amended from time to time. That depends upon the construction to be placed on Article 13(2) of the Constitution.

p. The question arises this way. The Malabar Tenancy Act, 1929, enacted no doubt by the Madras Legislature, was in force, in what I maycompendiously call the Malabar area, and also portions of the South Kanara District which became part of the Kerala State after the States Reorganisation. Jn fact, the preamble to the Malabar Tenancy Act itself states that it is enacted for the purpose of defining, declaring etc., the law relating to landlord and tenant in the District of Malabar and certain neighbouring areas in the State of Madras. Under Sub-section (2) of Section 1, the Act extends to the whole of the District of Malabar, to the Gudelur Taluk of the Nilgiris District and to the villages in the South Kanara District specified in the schedule. In fact, the schedule gives a list of about 33 villages. Only some of those villages, which formed part of the original South Kanara District and referred to in the schedule came into the Kerala State. We are not also concerned with the application of the Act to the Gudalur Taluk of the Nilgiris District because that area does not form part of the Kerala State.

3. This Act was admittedly in force in the areas forming part of the Kerala State to which it was applicable, till the passing by the State Legislature, of the Kerala Agrarian Relations Act, 1960, Kerala Act 4 of 1961. This Act received the assent of the President on 21-1-1961 and was published in the State Gazette dated 3-2-1961. The preamble to this statute was to the effect that it was expedient to enact a comprehensive legislation relating to agrarian reforms in the State of Kerala. Under Section 1 (2), the Act extends to the whole of the State of Kerala. Under Sub-section 3 of Section 1 it was provided that the Act shall come into force on such date as the Government, by notification in the Gazette appoint; and it also provided that different dates may be appointed for different provisions of the Act. There is no controversy that Sections 1 to 40, 57, 58, 60, 74 to 79 and 81 to 95 came into force with effect from 15-2-1961 by virtue of a notification issued by the State Government under Section 1 (3) of the Act.

Section 95 of Kerala Act 4 of 1961 related to repeals. In particular, Sub-section (1) of Section 95 stated :

'The enactments mentioned in Schedule III are hereby repealed.'

Among the four statutes mentioned in Schedule III, item 3 was the Malabar Tenancy Act, 1929, and all the statutes mentioned in Schedule III were repealed 'as in force in any part of the State of Kerala'. When Section 95 of Kerala Act 4 of 1961 came into force from 15-2-1961, the Malabar Tenancy Act of 1929, stood repealed as and from that date. Sub-section 2 (a) of Section 95 related to the repeal of certain other Proclamations and Acts referred to therein and provided that all suits, appeals, revisions, reviews and proceedings in execution, of decrees stayed by the said enactments are to be disposed of in accordance with the provisions of Act 4 of 1961. Sub-section (4) of Section 95 again provided that any suit for restoration, filed under Section 24 or Section 26 of the Malabar Tenancy Act, 1929 and pending disposal at the commencement of the Kerala Act 4 of 1961, are to be disposed of in accordance with the provisions of the Malabar Tenancy Act as if that Act had not been repealed.

4. Kerala Act 4 of 1961 was challenged before the Supreme Court as unconstitutional by two sets of landlords, namely, one from the erstwhile State of Cochin which now forms part of the Kerala State and another from that part of the State of Kerala which was formerly in the South Kanara District of the State of Madras and has come, into the State of Kerala, namely, Hosdrug and Kasargode Taluks in the State of Kerala. The Act was challenged on several grounds.

5. So far as the challenge made by the landlord from the Cochin area was concerned, the Supreme Court did not accept the challenge. The decision of the Supreme Court on this matter is reported in Purshothaman Nambudiri v. State of Kerala, 1962 Ker LT (SC) 1 : (AIR 1962 SC 694). In this decision, their Lordships held that the lands held by the petitioner before them from the Cochin area are an 'estate' under Clause 2 (a) of Article 31A of the Constitution and, therefore, the Act is protected under Article 31A(2)(a) and, therefore, not open to be challenged on the ground, that the material provisions of the Statute offend Articles 14, 19 and 31.

6. But so far as the challenge made against Kerala Act 4 of 1961 by the landlord from the Hosdrug and Kasargode Taluks was concerned, the Supreme Court accepted the challenge and ultimately held that the Act infringes the fundamental rights of the petitioner therein and struck down the entire Act in relation to its application to ryotwari lands which have come to the State of Kerala, from the State of Madras. This decision of the Supreme Court is reported in Kunhi-koman v. State of Kerala, 1962 Ker LT (S. C.) 42 : (AIR 1962 SC 723). The decision of the Supreme Court in both these matters was rendered on 5th December, 1961.

7. In the meanwhile, inasmuch as Kurala Act 4 of 1961 had been notified to come into force from 15-2-1961, several tenants had filed applications before the concerned land Tribunals for fixation of fair rent under the provisions of the said Act. In consequence, a large number of writ petitions had been filed in this Court by landlords from the various areas for a declaration that Kerala Act 4 of 1961 is unconstitutional and it infringes the fundamental rights guaranteed to them and sought reliefs for prohibiting the Land Tribunals concerned, from proceeding with the applications filed by the tenants for fixation of fair rent etc. .

8. In particular, in the group of applications from the Malabar Area, the landlords challenged Kerala Act 4 of 1961 as unconstitutional and void as affecting their fundamental rights. They also claimed that the lands owned by them in the Malabar area are held on ryotwari tenure and, therefore, the lands cannot be characterised as an 'estate' under Clause 2 (a) of Article 31A, and urged that the Act infringes the fundamental rights guaranteed in particular under Articles 14, 19(1)(f) and (g) and 31 of the Constitution. In this connection quite naturally, the petitioners therein relied upon the decision of the Supreme Court reported in 1962 Ker LT (S. C.) 42 : (AIR 1962 SC 723) wherein their Lordships had struck down the identical Act, as unconstitutional inits application to ryotwari lands in the Hosdrug and Kasargode Taluks of the Kerala State.

9. A Full Bench of this Court, M. S. Menon, C. J. and Joseph and Vaidialingam, JJ, upholding the contentions of the landlords from the Malabar area, held that the lands owned by the various petitioners are not 'estates' under Article 31A(2)(a) of the Constitution and that Kerala Act 4 of 1961 is not protected, in consequence, from attacks based upon Articles 14, 19 and 31 of the Constitution. The learned Advocate General, appearing for the State in those matters, accepted the position that when once Act 4 of 1961 is not saved under Article 31A(1), the attack of unconstitutionally raised as against the Act, as violating Articles 14, 19 and 31 urged by the petitioners will have to be accepted by the Court in view of the decision of the Supreme Court reported in 1962 Ker. LT (S. C.) 42 : (AIR 1962 SC 723); and accordingly the Full Bench held that the petitioners therein being roytwari pat radars and the lands held by them being under ryotwari tenure, the whole of Kerala Act 4 of 1961 will have to be struck down so far as ryotwari lands in the Malabar area are concerned. Accordingly, the entire Act was struck down. This decision of the Full Bench is reported in Sukapuram Sabhayogam v. State of Kerala, (ILR 1962 (2) Ker 756). Again, in respect of certain other tenures in the Travancore area, there was also challenge made as against Kerala Act 4 of 1961 as affecting the fundamental rights of those petitioners. Those writ petitions again were dealt with by 5 Fall Bench of this Court. In respect of several tenures in the Travancore area, the same Full Bench has ultimately accepted the contentions of the petitioners therein and in consequence has struck. down the entire Act as violative of Articles 14, 19 and 31, of the Constitution. This decision is reported in P. G. Nambudirjpad v. State of Kerala, ILR 1963 (1) Ker 5 : (AIR 1963 Ker 86 (FB) ).

10. But, for the purpose of considering the question arising now before me, only the decision of the Full Bench of this Court reported in ILR 1962 (2) Ker 756 : (AIR 1963 Ker 101) is material. I have already stated that by virtue of that decision, this Court has struck down the entire Kerala Act 4 of 1961 as violative of Articles 14, 19 and 31 of the Constitution. There was no question of any severability of any provisions of the statute, and it must be noted that the entire Act lias been struck down, which would include also Section 95, relating in particular, to the repeal of the Malabar Tenancy Act, 1929.

11. In the meanwhile, it will be seen, that after the repeal of the Malabar Tenancy Act, the applications already filed for fixing fair rent, were not continued on the ground that the rent Courts concerned have no further jurisdiction. Similarly, appeals which had been taken by aggrieved parties against the orders passed by the Rent Courts and which were pending before the appellate authorities constituted under the Malabar Tenancy Act were dismissed by the said appellate authorities on the ground that they have no jurisdiction to hear the appeals because the Malabar Tenancy Act had been repealed; Similarly, in some cases,the appellate authorities have overruled the objections raised that they have no jurisdiction to hear the appeals after the Malabar Tenancy Act has been repealed and have adjudicated on merits,

12. Orders passed by the Kent Court declining to proceed with the applications filed for fixation of fair rent, again orders passed by the appellate authorities declining to continue the appeals, as also the orders passed by the appellate authorities overruling the objections raised regarding their jurisdiction to hear appeals after the repeal of the Malabar Tenancy Act, were again the subject of several writ petitions. No doubt, in all these matters the original contention that is taken is that the parties therein have got a vested right either to have the fair rent fixed under the Malabar Tenancy Act on the basis of applications filed by them before its repeal or that the parties have got a vested right of appeal for challenging the orders of the Rent Courts and those rights have not been taken away by the Kerala Act 4 of 1961. Such vested rights, according to the petitioners, have not been taken away by Kerala Act 4 of 1961. But after the striking down as unconstitutional of Kerala Act 4 of 1961 with respect to the ryotwari lands in the Malabar area, various parties have again taken up a further contention that as Kerala Act 4 of 1961 is void under Article 13(2) of the Constitution, in view of the decision of this Court referred to above, there has been no repeal at all of the Malabar Tenancy Act, which continues to be in full force and operation.

13. Though I am dealing only with one writ petition, I have permitted the counsel appearing for the various parties in the other writ petitions also to place their contentions on both these aspects, namely, (a) the effect of the striking down of Kerala Act 4 of 1961 as unconstitutional by this Court in relation to the repeal of the Malabar Tenancy Act, and (b) as to whether there is any vested right as pleaded by the parties and set out above.

14. The question of vested rights, if any, under the Malabar Tenancy Act, 1929, and as to whether such rights have or have not been taken away by Kerala Act 4 of 1961 will really arise only if Kerala Act 4 of 1961 is in force. If the contention of the learned counsel urging that Kerala Act 4 of 1961, from its very inception was void, and of no effect, and in consequence there can in law be no repeal of the Malabar Tenancy Act, is accepted, then the position in law will be that there has never been at any time a repeal of the Malabar Tenancy Act, 1929, In that case, it will be unnecessary to consider the second aspect, namely, the claim of the parties as to their having a vested right under the Malabar Tenancy Act in the manner raised by them.

15. Therefore, I will, for the present, confine myself only to the legal effect of the striking down by this Court of the Kerala Agrarian Relations Act, 1959, Act 4 of 1961, as unconstitutional, as it infringes the fundamental rights guaranteed under Articles 14, 19(1)(f) and (g) and 31 of the Constitution.

16. Before I proceed to set out the contention of the learned counsel, this is a convenientstage to refer to Article 13(1) and (2) of the Constitution, which is as follows: -

'13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.'

Article 13(1), there can be no controversy, deals with pre-Constitution laws; and similarly there can be no controversy that Article 13(2) deals with post-Constitution laws.

17. Mr. K. Kuttukrishna Menon, learned counsel, has advanced the leading arguments on the side of those petitioners who urged that in view of the decision of this Court reported in ILR 1962 (2) Ker 756 : (AIR 1963 Ker 101 (FB)) striking down Kerala Act 4 of 1961 in its relation to ryotwari lands in the Malabar area, on the ground that it infringes the fundamental rights conferred by Part III of the Constitution, the position in law is that under Article 13(2) of the Constitution the said Act is void and, therefore, there could be no repeal of the Matabar Tenancy Act by a void statute. This contention of Mr. Kuttikrishna Menon has been supported by Messrs. Raghvan Nair and V. Bhaskaran Nambiar, appearing for some of the other parties who take up the same contention.

18. The learned Advocate General appearing for the State, has also supported the stand taken by Mr. Kuttikrishna Menon to the effect that there has been no repeal of the Malabar Tenancy Act and that the said Act is in full force and operation.

19. On the other hand, Mr. A. S. Krishna Iyer, learned counsel, has opposed the stand taken both by the learned Advocate General and Mr. Kuttikrishna Menon. According to Mr. A. S, Krishna' Iyer, notwithstanding the striking down of Kerala Act 4 of 1961, by this Court, in its relation to the ryotwari lands as offending the fundamental rights, nevertheless the repeal of the Malabar Tenancy Act effected by Section 95 (1) of Kerala Act 4 of 1961 is perfectly valid. According to the learned counsel, once the Malabar Tenancy Act has been so repealed and almost identical and more elaborate provisions have been made in the new statute, dealing with several matters, there can be no question of the Malabar Tenancy Act coming back to life or being considered a statute which has not been repealed at all. In this connection, the learned counsel urged that there may be other tenures in respect of which this Court had no occasion to consider as to whether Kerala Act 4 of 1961 is valid or not.

Again, the Supreme Court also has upheld the validity of Kerala Act 4 of 1961 so far as the Cochin area is concerned. According to the learned counsel, the effect of the decision of this Court is that Kerala Act 4 of 1961 is unenforceable so far as the rights under Part III are concernedand the statute cannot be considered to be void for all purposes. That is, in short, according to Mr. A. S. Krishna Iyer, the repeal of the Malabar Tenancy Act effected by Section 95 (i) of Kerala Act 4 of 1961 is perfectly valid.

20. This contention of Mr. A. S. Krishna Iyer has been adopted by Mr. C. K. Viswanatha Iyer, learned counsel appearing on behalf of certain other parties who take up the same position.

21. As I am accepting the contention of the learned Advocate General and Mr. Kuttikrishna Menon on this aspect, I am not dealing with the contentions that have no doubt been advanced before me on the question of parties having a vested right under the Malabar Tenancy Act and as to whether those rights have or have not been taken away by Kerala Act 4 of 1961.

22. The effect of a declaration of a statute as unconstitutional, on the ground that it affects the fundamental rights has been considered by their Lordships of the Supreme Court in several decisions. No doubt some of those decisions, deal mainly with pre-Constitution enactments. But as I will indicate presently, there are observations in these judgments also as to what the position is in respect of post-Constitution Acts, enacted in the teeth of the prohibition contained in Article 13(2) of the Constitution.

23. Before I consider those decisions, I will refer to the meaning of the word 'void' as stated in Black's Law Dictionary, as well as to certain other passages from text books as to the effect of the striking down of a statute as unconstitutional.

24. The meaning of the word 'void' is stated in Black's Law Dictionary as follows:

'null and void; ineffectual; nugatory; having no legal force or binding effect; unable in law to support the purpose for which it was intended; nugatory and ineffectual so that nothing can cure it; not valid'.

24a. Coolye in his 'Constitutional Limitations' 8th Edition, Vol. I, at page 832, dealing with 'Consequences if a statute is void' says:

'When a statute is adjudged to be unconstitutional, it is as if it had never been .....And what is true of an act void in toto is true also as to any part of an act which is found to be unconstitutional, and which consequently is to be regarded as having never, at any time, been possessed of any legal force.'

25. In Rottschaefar on Constitutional Law, it is stated at page 34:

'The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional results. That theory implies that the legislative provisions never had legal force as applied to cases within that clause.'

26. In 'Willison Constitutional Law'', at page 89 it is stated:

'A judicial declaration of the unconstitutionality of a statute neither annuls or repeals the statute but has the effect of ignoring or disregard-ing it so far as the determination of the rights of private parties is concerned. The Courts generally say that the effect of an unconstitutional statute is nothing, it is as though it had never been passed .....'

27. 'Willoughby on Constitution of the United States', Second Edition, Volume I, page 10 says:

'The Court does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognise it, and determines rights of the parties just as if such statute had no application .....'

I have referred only to such of the passages from the leading text books, which have found approval at the hands of their Lordships of the Supreme Court.

28. In Statutory Construction by Crawford, at page 182, it is stated:

'Of course, if the amendatory statute is wholly void, the statute sought to be amended is not affected but remains in force. It is as inoperative as if it had never been enacted, or the act sought to be amended is, at least, reinstated in its effectiveness upon the established invalidity of the amendment.'

29. The earliest decision of the Supreme Court is the one in Keshavan v. State of Bombay, AIR I95r SC 128. In that case, the appellant before the Supreme Court was prosecuted for an offence punishable under Section 18 (1) of the Press (Emergency Powers) Act, 1931. During the pendency of the prosecution, the Constitution of India came into force with effect from 26-1-1950, and in consequence the appellant raised a contention that Section 18 and certain other sections of the Press (Emergecy Powers) Act, 1931, were ultra vires, and void in view of Article 19(1)(a) read with Article 13.

30. The Bombay High Court took the view that the word 'void' was used in Article 13(1) in the sense of 'Repeal' and that therefore the provisions of Section 6 of the General Clauses Act were attracted. In this view, the High Court held that the proceedings initiated under the 1931 Act and which were pending on the date of the commencement of the Constitution were not affected, even if the 1931 Act was inconsistent with the fundamental rights guaranteed under Article 19(1)(a) and has become void under Article 13(1) after 26-1-1950.

31. This view of the High Court was challenged in appeal before their Lordships of the Supreme Court. Before the Supreme Court it will be seen that the counsel for the appellant did not think it necessary to take up the position that pre-Constitution laws, inconsistent with the fundamental rights became void ab initio, in that all past and closed transactions can also be reopened. But the contention appears to have been that on and from 26-1-1950 such inconsistent laws which, became void under Article 13(1) cannot be looked into for any purpose. Mr. Justice Das, as he then was, expressing the majority view, observes at p. 130:

'What Article 13(1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first timecreated by the Constitution) shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution, the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow therefore, that Article 13(1) can have no retrospective effect but is wholly prospective in operation.

After this first point is noted, it should further be seen that Article 13(1) does riot in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights, shall be void to the extent of their inconsistency, they are not valid for all persons, but they are valid only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution, no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights. Article 13(1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the Statute Book .....'

The learned Judge also later on indicates that the view of the High Court that the expression 'void' in Article 13(1) is used in the sense of 'repeal' cannot be accepted. On the other hand, the learned Judge's view js that the effect of Article 13(1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. Ultimately, the learned Judge agreed, though for different reasons, with the conclusion arrived at by the High Court that inasmuch as Article 13(1) is not retrospective, proceedings commenced under the 1931 Act can be continued. Mr. Justice Mahajan, in a separate, but concurrent judgment, discusses again the effect of a statute being held to be void under Article 13(1). At page 136 the learned Judge observes:

'The expression 'void' has no larger effect on the Statute so declared than the word 'repeal'. The expression 'repeal' according to common law rule obliterates a Statute completely as if it had never passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the Interpretation Act, 1889, or in the General Clauses Act, 1897; while a provision in a Statute that with effect from a particular date an existing law would be void to the extent of the repugnancy has no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws.'

After discussing the contention of the appellant's counsel that the expression 'void' in its widest sense means that the law is declared void or void ab initio and holding that such a contention cannot be accepted in respect of laws existing on 26-1-1950 and which were declared. void by Article 13(1), the learned Judge observes at p. 138 as follows:

'Reference was also made to the rule of construction laid down by the American Courts, in respect of statutes declared void because of their being repugnant to the Constitution of the United States of America. It is obvious that it a Statute has been enacted and is repugnant to the Constitution, the Statute is void since its very birth and anything done under it is also void and illegal. The Courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional Statute have been set aside by issuing appropriate writs. If a Statute is void from its very birth, then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional, according to the Government of India Act, 1935. Of course, if any law is made after 26-1-1950 which is repugnant to the Constitution, then the same rule will have to be followed by Courts in India as is followed in America and even convictions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to the Court by the Constitution.'

32. The observations above extracted, if I may say so with great respect, in my view, directly deal with a situation arising under Article 13(2) in respect of what I may call the post-Constitution enactment. It is the view of the learned Judges that the rule of construction laid down by the American Courts in respect of such statutes declared void will have to be followed by Courts in India if any law is made after 26-1-r95o which is repugnant to the Constitution. That is, according to the learned Judge, such post-Constitution statutes, which are repugnant to the fundamental rights guaranteed under the Constitution, must be considered to be void from its birth and anything done under it should also be considered to be void.

33. Though their Lordships of the Supreme Court had only to deal with the position under Article 13(1) nevertheless as I have indicated above, there are weighty observations in the said judgment as to what the position will be under Article 13(2) also.

34. In Saghir Ahmed v. State of U. P., AIR 1954 SC 728 the learned Judges were considering a question as to whether a post-Constitution enactment which infringed the fundamental right guaranteed under Part III on the date when it was passed can be saved by a subsequent amendment of the Constitution, particularly with reference to fundamental rights.

35. The Supreme Court was of the view that the validity of the Act will have to be judged by considering as to whether it violates the fundamental rights guaranteed to the party therein, under Article 19(1)(g) of the Constitution, on the date when the Act was passed. The statute, in that case, which came in for scrutiny, was a post-Constitution one. At page 739 Mr. Justice Mukherjra speaking for the Court sums up the position as follows: -

'The amendment of the Constitution, which came later, cannot be invoked to validatean earlier legislation which must be regarded as unconstitutional when it was passed. As Professor Cooley has stated in his work on Constitutional Limitations Vide Vol. I, page 384 notes, ' a statute void for unconstitutionally is deadand cannot bevitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted''. We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under Article 19(1)(g) of the Constitution and is notshown to be protected by Clause (6) of the Article, as it stood at the time of the enactment, must be held to bo void under Article 13(2) of the Constitution.'

36. It will be seen from the above extractthat the Supreme Court approves of the statement of Professor Cooley that the statutewhich is void for unconstitutionality is a deadstatute.

37. The question of the effect of striking down Section 13(b) of the Bombay Prohibition Act, Bombay Act 25 of 1949, by the Supreme Court in its decision in State of Bombay v. F. N. Balsara, AIR 1951 SC 318 came up lor consideration before their Lordships of the Supreme Court in Behram Khurshid v. State of Bombay, AIR 1955 SC 123. In the first instance Bhagwati, Jagannadhadas and Venkatarama Iyer, JJ., dealt with the matter and as the learned Judges could not reach a unanimous decision and expressed different and divergent opinions, they granted an application for review of their judgment and subsequently referred the question to a Constitution Bench. The question that was referred related to the effect of the declaration by the Supreme Court that Clause (b) of Section 13 of the Bombay Prohibition Act is void under Article 13(1) of the Constitution.

38. The matter came before the Constitution Bench consisting of Mahajan, C. J,. B. K. Mukherjea, S. R. Das, Bose and Ghulam Hassan, JJ. The majority opinion was delivered by his Lordship Mahajan, C. J. No doubt, Mr. Justice S. R. Das, as he then was, did not agree with the majority view.

39. The learned Chief Justice after referring in brief to the divergent views expressed in the first instance by the three learned Judges, adverts to the fact that in AIR 1951 SC 318 though the constitutional validity of the Bombay Prohibition Act (Act 25 of 1949) was challenged ultimately that attack substantially failed and the Act was maintained with the exception of a few provisions that were declared invalid. One of the provisions declared invalid was Clause (b) of Section 13 of the Bombay Prohibition Act. The learned Chief Justice poses the problem for consideration as follows:

'The problem now raised is : what is the effect of this partial declaration of the invalidity of Section 13(b) on the case of a citizen prosecuted under 'Section 66(b) for committing a breach of the provisions of the section after thecoming into force of the Constitution. Our opinion on this question is that the effect of the declaration in AIR 1951 SC 318, that Clause (b) of Section 13 of the Bombay Prohibition Act is void under Article 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, is to render part of Section 13(b) of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus unenforceable. The part of the section which has been declared void has no' legal force so far as citizens are concerned and it cannot be recognised as valid law for determining the rights of citizens.'

The learned Chief Justice also states in the latter part of the judgment that no notice at all should be taken of Section 13(b) of the Bombay Prohibition Act as it has been struck down as having no legal effect. The learned Chief Justice again considers the meaning to be given to the expression 'void' occurring in Article 13(1). In this connection, the learned Chief Justice observes at p. 145:

'The meaning to be given to the expression 'void' in Article 13(1) is no longer 'res integra'. It stands concluded by the majority decision in AIR 1951 SC 128. The minority view there was that the word 'void' had the same meaning as 'repeal' and therefore a statute which came into clash with fundamental rights stood obliterated from the statute book altogether, and that such a statute. was void 'ab initio'. The majority however held that the word 'void' in Article 13(1) so far as existing laws were concerned, could not be held to obliterate them from the statute book, and could not make such laws void altogether, because in its opinion. Article 13 had not been given any retrospective effect. The majority however held that after the coming into force of the Constitution, the effect of Article 13(1) on such repugnant laws was that it 'nullified' them, and made them ineffectual and nugatory and devoid of any legal force or binding effect.

It was further pointed out in one of the judgments representing the majority view, that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth, has no application to cases concerning obligations incurred or rights accrued in accordance with an existing law that was constitutional in its inception, but that if any law was made after the 26th January 1950 which was repugnant to the Constitution, then the same rule shall have to be followed in India as followed in America. The result therefore of this pronouncement is that the part of the section of an existing law which is unconstitutional is not law, and is null and void.

For determining the rights and obligations of citizens the part declared void should be notionally taken to be obliterated from the section for all intents and purposes, though it may remain written on the statute book and be a good law when a question arises for determination of rights and obligations incurred prior to 26th January, 1950, and also for the determination of rights of persons who have not been given fundamental rights by the Constitution Thus, in this situation, there is no scope for introducing terms like 'relatively void' coined by American Judges in construing a Constitution which is not drawn up in similar language and the implications of which are not quite familiar in this country.'

40. The learned Chief Justice, it will be seen from the extract quoted above, specifically adverts to the majority view expressed in AIR 1951 SC 128 that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth will apply to any law made after 26th January, 1950, which is repugnant to the Constitution. The learned Chief Justice further says that the same rule in respect of post-Constitution enactments will be valid in India as in America.

41. The learned Chief Justice also expresses disagreement with the view expressed by Mr. Justice Venkatarama Iyer, prior to the granting of the review, that a declaration of unconstitu-tionality brought about by lack of legislative power stands on a different footing from a declaration of unconstitutionality brought about by reason of abridgment of fundamental rights. The learned Chief Justice expresses himself in this connection at page 145 as follows:-

'We think that it is not a correct proposition that constitutional provisions in Part III of our Constitution merely operate as a check on the exercise of legislative power. It is axiomatic that when the law-making power of State is restricted by a written fundamental law, then any law enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity.

Both these declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them. They represent two aspects of want of legislative power. The legislative power of Parliament and the State Legislatures as conferred by Articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution. A mere reference to the provisions of Article 13(2) and Articles 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with Part III of the Constitution after thecoming into force of the Constitution.

Article 13(2) is in these terms: 'The State 'shall not'' make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.'

This is a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which come into conflict with Part III of the Constitution. The authority thus conferred by Articles 245 and 246 to make laws subjectwise in the different legislatures is qualified by the declaration made in Article 13(2). That power can only be exercised subject to theprohibition contained in Article 13(2). On the construction of Article 13(2) there was no divergence of opinion between the majority and the minority in AIR 1951 SC 128. It wasonly on the construction of Article 13(1)that the difference arose because it was felt that that Article could not retrospectively invalidate laws, which when made were constitutional according to the Constitution then in force.'

42. The learned Chief Justice, if I may say so with respect, categorically states that a law enacted and opposed to the fundamental law should be considered to be in excess of legislative authority and is thus a nullity.

43. The learned Chief Justice specifically refers to Article 13(2) and states that Article 13(2) is a clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which come into clash with part III of the Constitution. The Court further states that the authority conferred by Articles 245 and 246 is again qualified by the declaration made in Article 13(2).

44. The learned Chief Justice, in the later part of the judgment states, that once a statute is declared void under Article 13(1) or 13(2) that declaration has the force of law and the statute so declared void is no longer law qua persons whose fundamental rights are thus infringed and winds up the discussion at p. 146 as follows:

'In this country once a law has been struck down as unconstitutional law by a Court, no notice can be taken of that law by any Court, and in every case an accused person need not start proving that the law is unconstitutional. The Court is not empowered to look at that part of the law which has been declared as void, and therefore, there is no onus resting on the accused person to prove that the law that has already been declared unconstitutional is unconstitutional in that particular case as well. The Court has to take notice only of what the law of the land is, and convict the accused only if he contravenes the law of the land.'

45. The various observations of his Lordship the Chief Justice in the above extract, in my view, clearly indicate that a post-Constitutional enactment, which clashes with the fundamental rights contained in Part III of the Constitution is unconstitutional and as such is not law and is null and void.

46. In Bhikaji Narain v. State of M. P., (S) AIR 1955 SC 781, the learned Chief Justice in discussing the scope of Article 13(1) of the Constitution adverts to the American authorities cited before the learned Judge and observes at p. 785 as follows:

'The American authorities refer only to post-Constitution laws which were inconsistent with the provisions of the Constitution. Such laws never came to life but were still-born as it were. The American authorities, therefore, cannot fully apply to pre-Constitution laws which were perfectly valid before the Constitution.'

47. It will be seen from these observations of the learned Chief Justice that post-Constitution laws which are inconsistent with the provisions of the Constitution must be considered to have never come to life but were still born as it were.

48. Again, the Supreme Court had to consider the expression 'void' occurring in Articles13(1) and 13(2) of the Constitution in Deen Chand v. State of U. P., AIR 1959 SC 648. No doubt, the learned Judges had to consider the doctrine of eclipse, and as to whether the doctrine is applicable only to pre-Constitution laws or it applies also to any post-Constitution law which falls under Article 13(2) of the Constitution. The learned Chief Justice, speaking on behalf of himself and Mr. Justice Sinha, as he then was, was not prepared to express a final opinion as to whether a post-Constitution law, which infringes a fundamental right guaranteed to all persons, irrespective of whether they are citizens or not and which therefore can have no operation at all when it is enacted and is to be regarded as a still-born law as if it had not been enacted at all and, therefore, not subject to the doctrine of eclipse.

49. But the majority judgment in the said decision was given by Mr. Justice Subba Rao.

50. It will be seen that the learned Advocate General appearing for the State of Uttar Pradesh attempted to make a distinction between the law made in exercise of the power conferred on a, legislature under the relevant list in the VIIth Schedule and that made in violation of the provisions of Part III of the Constitution. According to the learned Advocate General, the former goes to the root of the legislative power whereas the latter operates only as a check on that power with the result that a law so made is unenforceable and as soon as the check is re-moved the law is revived and becomes operative from the date the check is removed by a constitutional amendment.

51. On the other hand, Mr. M. K. Nambiar, learned counsel appearing for the appellant, urged that a law so made in every contingency is void ab initio; and in particular the learned counsel urged that where the provisions of an enactment passed by a Legislature after 26th January, 1950, in whole or in part -- subject to the doctrine of Beverability -- are in conflict with the provisions of Part III, the statute in whole or in part, is void ab initio. Mr. Justice Subba Rao, if I may say so with great respect, very exhaustively or analytically goes into these aspects, after referring to Articles 13, 31, 245 and 246, the learned Judge says at p. 655-

'The combined effect of the said provisions may be stated thus: Parliament and the Legislature of States have power to make laws in respect of any of the matters enumerated in the relevant lists in the Seventh Schedule and that power to make laws is subject to the provisions of the Constitution including Article 13, i.e., the power is made subject to the Limitations imposed by Part III of the Constitution, The general power to that extent is limited. A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13.'

The learned Judge, in particular considers Article 13(1) and 13(2) and states that Article 13(1) recognises the validity of pre-Constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with Part III; whereas Clause 2 of Article 13 imposes a prohibition on the State makinglaws taking away or abridging the fundamental rights conferred by Part III and declares that laws made in contravention of that clause shall to the extent of contravention be void.

52. Again referring to Clauses 1 and 2 of Article 13 the learned Judge at p. 656 states:

'There is a clear distinction between the two Clauses. Under Clause (1), a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas, no post-Constitution law can be made contravening the provisions of Part III, and therefore, the law, to that extent, though made, is a nullity from its inception.

If this clear distinction is borne in mind, much of the cloud raised is dispelled. When Clause 2 of Article 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges the rights conferred by Part III, it will not avail the State to contend either that the clause does not embody a curtailment of the power to legislate or that it imposes only a check but not a prohibition. A constitutional prohibition against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other Constitutions; nor can we appreciate the argument that the words 'any law' in the second line of Article 13(2) posits the survival of the law made in the teeth of such prohibition. It is said that a law can come into existence only when it is made and that clause presupposes that the law made is not a nullity. This argument may be subtle but is not sound. The words 'any law' in that clause only mean an Act passed or made factually, notwithstanding the prohibition. The result of such contravention is stated in that clause. A plain reading of the clause indicates, without any reasonable doubt, that the prohibition goes to the root of the matter and limits the State's power to make law; the law made in spite of the prohibition is a still born law.'

53. The above extract brings out in very bold relief two aspects regarding a post-Constitution statute, which offends fundamental rights. namely, (a) that it is a nullity from its inception and (b) the law made in spite of the prohibition is a still born law.

54. The learned Judge then refers to various passages found in some of the leading text books on the subject regarding the effect of a statute being declared unconstitutional as affecting the fundamental rights. The learned Judge then considers the principles laid down by the Supreme Court in AIR 1961 SC 128 and particularly notes the observation of Mr. Justice Mahajan, as he then was, that if any law is made after the 25th of January, 1950 which is repugnant to the Constitution, the same rule followed in America is to be followed in India as well, namely, treat the statute as void since its very birth and treat anything done under it also as void and illegal.

55. The learned Judge then refers to the principles laid down in (S) AIR 1955 SC 123 and adverts to one of the points discussed and laiddown in the said decision that as regards pre-Constitution laws it was held therein that as the pre-Constitution law was validity made it existed for certain purposes even during the post-Constitution period. After adverting to this principle the learned Judge states at page 659:

'This principle has no application to post-Constitution laws infringing the fundamental rights as they would be ab initio void in toto or to the extent of their contravention of the fundamental rights.'

56. Here again, it will be seen that the learned Judge emphasises that a post-Constitution law which infringes the fundamental rights is ab initio void in toto.

57. The learned Judge deduces the following three propositions from the decision of the Supreme Court in (S) AIR 1955 SC 123. namely, (1) when the law making power of a State is restricted by a written fundamental law, then any law opposed to the fundamental law is in excess of legislative authority and is thus a nullity; (2) even in the case of a statute to which Article 13(1) applies, though the law is on the, statute book and is good law, when the question arises for determination of rights and obligations incurred prior to January 26, 1950, the part declared void should be notionally taken to be obliterated from the statute for all intents and purposes; and (3) on the construction of Article 13(2) the law made in contravention of that clause is a nullity from its inception. No doubt, the learned Judge says that the said decision is an authority on propositions 1 and 2 but it contains a weighty observation regarding proposition No. 3. This, again shows that a law made in contravention of Article 13(2) is a nullity from its very inception.

58. The learned Judge summarises the discussion in the following proposition at p. 664:

'The result of the aforesaid discussion may be summarised in the following propositions (i) whether the Constitution affirmatively confers power on the legislature to make laws subjectwise or negatively prohibits it from infringing any fundamental right, they represent only two aspects of want of legislative power;

(ii) The Constitution in express terms make the power of a legislature to make laws in regard to the entries in the Lists of the Seventh Schedule subject to the other provisions of the Constitution and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution; (iii) it follows from the premises that a law made in derogation or in excess of that power would be ab initio void wholly or to the extent of the contravention as the case may be; and (iv) the doctrine of eclipse can be invoked only in the case of a law valid when made, but a shadow is cast on it by supervening constitutional inconsistency or supervening existing statutory inconsistency; when the shadow is removed the impugned Act is freed from all blemish or infirmity.'

59. The only other decision to which reference is to be made is the recent decision of the Supreme Court reported in W. R. E. D. Co., Ltd. v. State of Madras, AIR 1962 SC753. The only observation that is to be noted in this decision is what is to be found at p. 1761 to the follpwing effect:

'As has been pointed out by the majority decision in Deep Chand's case, 1959 Supp (2) SCR 8 : (AIR 1959 SC 648), the infirmity proceeding from lack of legislative competence as well as the infirmity proceeding from the contravention of fundamental rights lead to the same result and that is that the offending legislation is void and non est.'

60. It will be now seen from the various principles laid down by the Supreme Court that a statute enacted in the teeth of the prohibition contained in Article 13(2) of the Constitution is void ab initio in toto and is a nullity. Mr. Justice Mahajan, in AIR 1951 SC 128 at p. 138 states the principle that if a statute, has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. Again, in AIR 1954 SC 728, Mr. Justice Mukherjea quotes with approval the passage in 'Constitutional Limitation'' by Professor Cooley that a statute void for unconstitutionality is a dead one. In (S) AIR 1955 SC 123, Mr. Mahajan states that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth will have to be followed in India in respect of post-Constitution Act. Again in (S) AIR 1955 SC 781, the learned Chief Justice Das, states that the post-Constitution laws which are inconsistent with the provisions of the Constitution are laws which never came to life but were still born as it were.

61. Mr. Justice Subba Rao, in AIR 1959 SC 648 describes a post-Constitution law enacted in the teeth of the prohibition contained in Article 13(2) as a nullity from its inception, a still born law. ab initio void in toto and null and void.

62. Mr. Justice Gajendragadkar in AIR 1962 SC 1753 states that an Act offending fundamental rights is void and non est. The above summarises the result of the various decisions of the Supreme Court.

63. If the position in law is that a statute enacted in the teeth of the prohibition contained in Article 13(2) of the Constitution is ab initio void in toto, non est, a nullity, and still born one, it clearly follows that no rights whatsoever could have flown from such an enactment and that enactment also could not have any operation whatsoever. That is the position, in my view, so far as Kerala Act 4 of 1961 is concerned and as I have mentioned earlier the entire Act has been struck down as violative of Articles 14, 19(1)(f) and (g) and 31 of the Constitution. If that is so, the Act was dead from the very beginning and Section 95 repealing the provisions of the Malabar Tenancy Act in particular also could not have taken effect, inasmuch as it formed part of a dead statute or a statute which was null and void from the very inception.

64. The contention of Mr. A. S. Krishna Iyer, learned counsel, that the Supreme Court has upheld the validity of Kerala Act 4 of 1961in respect of Cochin area need not detain me at all because in the group of writ petitions now before this Court the lands involved are all lands held under ryotwari tenure in the Malabar area in respect of which this Court has categorically laid down that Kerala Act 4 of 1961 has no application, being unconstitutional and ultra vires. The Malabar Tenancy Act had no application at any time in the Cochin area.

65. Mr. A. S. Krishna Iyer, learned counsel,attempted to rely upon some provisions of the Kerala Tenants and Kudikidappukars Protection Ordinance, 1962, Ordinance 8/1962, promulgated by the Governor on 10th December, 1962. The Ordinance has no bearing on the point that arises for consideration which is as to the effect of the Court striking down Kerala Act 4 of 1961 as unconstitutional and void. I may also add that Kerala Ordinance 8 of 1962 has been repealed by the Kerala Tenants and Kudikidappukars Protection Act, 7 of 1963, which has now become law and even the provisions contained in the said Act do not have any bearing on the matter arising for consideration before me.

66. Mr. A. S. Krishna Iyer, learned counsel, also further urged that Section 95 of the Kerala Act 4 of 1961, relating to repeal of the enactment, in question, is separable and, therefore, the repeal of the Malabar Tenancy Act can be effected. There is no question of separability of any part of Kerala Act 4 of 1961 arising for consideration in this case, because the Full Bench of this Court, has categorically struck down the entire provisions of Kerala Act 4 of 1961 relating to ryotwari tenure in the Malabar area. Therefore, no question of severability or separability of any part of the Act comes into play at all.

67. In the view that I take that inasmuch as Kerala Act 4 of 1961 was still born, null and void from its inception, totally void ab initio and non est, it follows that there could have been no repeal of the Malabar Tenancy Act by the said statute and the result will be that the Malabar Tenancy Act continues to be in force in the Malabar area and will have application so far as ryotwari lands in that area are concerned.

68. The second contention that has been raised and to which I have referred earlier, does not arise for consideration and I express no opinion whatsoever on that contention. Considering that contention will really be on the basis that Kerala Act 4 of 1961 is in force and it is not in force because it was a dead Act from the very beginning.

69. Coming to the writ petition on hand, the petitioner is a tenant. He filed an application under. Section 16 of the Malabar Tenancy Act for fixation of fair rent of the holding. The annual contract rent was about 900 paras of paddy and Re. 1 in cash. The Rent Court fixed the fair rent at about 66 and odd paras of paddy beginning from the year 1954-55.

70. The landlord, the contesting respondent herein, challenged this decision by filing an appeal under Section 17 of the Act before the Subordinate Judge's Court at Palghat, which is theappellate authority. The learned Subordinate Judge does not appear to have been satisfied with the manner of disposal given by the Rent Court and after giving certain directions has remanded the fair rent application to the Rent Court itself. This order of the appellate authority was passed on 17th October, 1960.

71. After remand the matter came before the Rent Court and the Rent Court also made some further investigation into that matter. But no final orders have been passed by the Rent Court because at that time the Malabar Tenancy Act was repealed by Kerala Act 4 of 1961. The petitioner's grievance is two fold, namely, that the appellate authority itself should have disposed of the appeal on the merits and (2) this Court is to issue a writ of mandamus to the 4th respondent, namely the State of Kerala, directing it to constitute a Rent Court for disposing of the fair rent application filed by the petitioner and which has been remanded by the appellate authority.

72. This writ petition is quite naturally opposed on behalf of the landlord respondent.

73. I have already considered the contentions advanced regarding the effect of Kerala Act 4 of 1961 being struck down by this Court and the position is that the Malabar Tenancy Act is in force in the Malabar area so far as ryotwari lands are concerned.

74. The petitioner cannot have the relief at the appellate authority being directed to dispose of the appeal itself because it is seen that the appellate authority has already remanded the matter by its order dated 17th October, 1960, and in consequence of the order of remand the Rent Court has taken further proceedings and, therefore, the proceedings will have to be continued by the Rent Court itself.

75. But the grievance of the petitioner that there is no Rent Court functioning which can continue the proceedings is absolutely justified. If the Malabar Tenancy Act is in force there is an obligation on the State Government to constitute the appropriate authorities under the statute. But I am not issuing a writ of Mandamus as such directing the State Government to constitute the Rent Court. This Court can very well proceed on the basis that having due regard to the decision given herein that the Malabar Tenancy Act is in force in the Malabar area, the State Govern-ment will take appropriate steps to implement the decision of this Court. But I make it clear that the proceedings to be continued before the Rent Court as and when constituted will be subject to the provisions of the Kerala Tenants and Kudikidappukar Protection Ordinance, 1962, Ordinance No. 8 of 1962, or the Act that has now come into force, namely, Kerala Act VII of 1963.

76. Subject to these direction and observations, the writ petition is dismissed. Parties will bear their own costs.


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