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Sri Mottayan Alias Ponnuswami Vs. Sri Thambuswami Padayachi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1970)1MLJ137
AppellantSri Mottayan Alias Ponnuswami
RespondentSri Thambuswami Padayachi and anr.
Cases ReferredGanapati Aiyar v. Ayyakannu
Excerpt:
- - 1. these second appeals arising out of three connected suits raise an interesting and important question of law, to be specific, the question whether during the relevant period there has been a statute current as contended for the appellants. to oust the jurisdiction of the civil court in a suit in ejectment, three conditions must be satisfied, one, the occupant must be a cultivating tenant, two he must be entitled to the benefits of madras act xxv of 1955, and three there must be a possibility of his securing one or other of the reliefs open to a cultivating tenant, before the revenue court. the requisites for ousting the jurisdiction of the civil courts are clearly wanting in the case. whereas the legislature of the state is not in session and the governor of madras is satisfied.....m. natesan, j.1. these second appeals arising out of three connected suits raise an interesting and important question of law, to be specific, the question whether during the relevant period there has been a statute current as contended for the appellants.2. the properties in the suits are agricultural lands and the suits are in ejectment and for future profits. the suit wet lands r.s. no. 407/4, thirty-three cents r.s. no. 403/1, eighty cents and r.s. nos. 325/7 and 325/8 and 302/2 seventyninc cents, situate in kavalkoodam village, neelathanallur vattam, thanjavur district, belonged to one narayanaswami pillai. according to the findings of the courts below, he was cultivating his lands in pannai till 11th november, 1952 when under exhibit a-2, he leased the lands in the suits and other.....
Judgment:

M. Natesan, J.

1. These second appeals arising out of three connected suits raise an interesting and important question of law, to be specific, the question whether during the relevant period there has been a statute current as contended for the appellants.

2. The properties in the suits are agricultural lands and the suits are in ejectment and for future profits. The suit wet lands R.S. No. 407/4, thirty-three cents R.S. No. 403/1, eighty cents and R.S. Nos. 325/7 and 325/8 and 302/2 seventyninc cents, situate in Kavalkoodam Village, Neelathanallur vattam, Thanjavur District, belonged to one Narayanaswami Pillai. According to the findings of the Courts below, he was cultivating his lands in Pannai till 11th November, 1952 when under Exhibit A-2, he leased the lands in the suits and other lands to one Varadaraja Padayachi, the first defendant in three suits under second appeal who was the Village Munsif of the vattam and who had been acting as the agent of Narayanaswami Pillai and collecting rents for him. The lease deed had been executed under the provisions of the Tanjore Tenants and Pannayal Protection Ordinance VI of 1952, which was later followed by Madras Act XIV of 1952. In the partition between Narayanaswami Pillai and his son Navaneetha Krishnan on 27th November, 1959, lands bearing R.S. No. 302/2, 325/7 and 325/8 among other properties fell to the share of Navaneetha Krishnan. Under Exhibit A-1 dated 5th April, 1960, Narayanaswami Pillai sold R.S. No. 407/4 to the plaintiff in O.S. No. 103 of 1961, out of which Second Appeal No. 1024 of 1962 arises. Under Exhibit A-5, dated 7th March, 1960, Narayanaswami Pillai sold R. S. No. 403/1 to Gopala Padayachi, the plaintiff in O.S. No. 104 of 1961 out of which Second Appeal No. 1026 of 1962 arises. Under Exhibit A-4 dated 27th January, 1960, the son Navaneetha Krishnan sold lands R.S. Nos. 235/7, 327/8 and 302/2 to Naina Padayachi, the plaintiff in O.S. No. 105 of 1961, out of which Second Appeal No. 1025 of 1962, arises. Varadaraja Padayachi who held the lands on lease from the owner Narayanaswami Pillai, arranged for these sales agreeing to surrender possession of the suit lands to the purchasers by 30th April, 1960. It is in evidence that he told the purchasers that Mottayyan, the second defendant in the suits O.S. Nos. 103 and 104 of 1961 was sublessee under him of the lands concerned therein, and Kuppu Sambari the second defendant in O.S. No. 105 of 1961 was sub-lessee under him of the lands concerned in that suit. On failing to secure possession of the lands, as promised the purchasers filed eviction petitions under the Madras Cultivating. Tenants Protection Act XXV of 1955, which had become applicable in the area, before the Revenue Court, Kumbakonam, charging Varadaraja Padayachi, the lessee under Exhibit A-2 and the first defendant in the present suits, with having sub-leased the lands. The sub-lessees under him were made parties to these petitions. The Revenue Court held that the sub-lessees from the lessee from the owner were not entitled to the benefits of Act XXV of 1955 and that the Plaintiff should seek their remedies in the civil Court as actual possession was admittedly with them. In that view, the petitions for eviction were dismissed. It is in these circumstances that the purchasers have filed the three suits in ejectment out of which these second appeals arise. The lessee first defendant remained ex parte and submitting to eviction being ordered, gave evidence for the plaintiffs as P.W. 4. As P.W. 4, he stated in his deposition that subsequent to the lease in his favour under Exhibit A-2, about 4 or 5 years prior to his giving deposition, he sub-leased the lands. The two sub-lessees examined themselves as D.Ws., 1 and 2 and the purchasers as P.Ws. 1 to 3, evidence being recorded in common for all the suits. The substantial defence taken by the contesting defendants, the sub-tenants, is that the first defendant was only an intermediary and farmer of rent and' not a cultivating tenant and that they are the cultivating tenants entitled to protection of Act XXV of 1955. The Courts below negatived the claims of D.Ws. 1 and 2 and decreed the suits in ejectment as prayed for. Objections raised by them as to the jurisdiction of the civil Court were overruled. The Appellate Court which posed before itself for consideration the question whether the first defendant in all the suits was only a farmer of rent and an intermediary and not a cultivating tenant and whether the sublessees under him who were admittedly in possession of the lands were cultivating tenants under the Act XXV of 1955 has decided the question against the sub-tenants. The Appellate Court records that by the overwhelming evidence of P.Ws. 1 to 4, Exhibit A-2 and even by the evidence of D.Ws. 1, 2 and 3, P.W. 4 was proved to be the cultivating tenant under Narayanaswami Pillai.

3. The question whether P.W. 4 held lands under Narayanaswami Pillai as a cultivating tenant or was only a farmer of rent and collects rents as an agent of Narayanaswami Pillai is primarily a question of fact and has been decided in favour of the plaintiffs. The Courts below have not accepted the case of the sub-tenants that they were on the land long prior to. the lease in favour of P.W. 4. The Courts below refer to the fact that the lands were under pannai cultivation of Narayanaswami Pillai prior to the lease, and P.W. 4 had subsequent to the lease in his favour inducted the Subtenants on the land. The Appellate Court remarks that if P.W.4 had claimed to be a lessee for the first time after the coming into force of Act XXV of 1955 then it might be possibly contended that he not having cultivated the land himself would not be a cultivating tenant as the sub-tenants were admitted to be actually tilling the soil for about 5 to 6 years, prior to the trial. There is no doubt evidence, that P.W. 4 took large extents of land on lease but it may be that with reference to these small extents, the subject-matter of consideration in these suits, he was an actual cultivator.

4. The lease deed Exhibit A-2, it is pointed out by the lower Appellate Court was executed by P.W. 4 under the provisions of Tanjore Tenants Protection Ordinance VI of 1952

5. The Courts below have given a finding that P.W. 4 was not an intermediary but a Cultivating tenant. The Madras Cultivating Tenants Protection Act XXV of 1955 which was published in the Fort St. George Gazette on 27th September, 1955 did not initially apply to the areas covered by the Tanjore Tenants and Pannayals Protection Act. It is only by Madras Act XIV of 1956 published in the Fort St. George Gazette on 1st October, 1956 that Madras Act XXV of 1955 was extended to the territories covered by Madras Act XIV of 1952.

6. The definition of the term cultivating tenant in the Tanjore Tenants and Pannayals Act XIV of 1952, as the definition in Act XXV of 1955 required of the cultivating tenant contribution of his own physical labour or that of the members of his family in the cultivation of the land. Once it is found that P.W. 4 is the cultivating tenant of the lands involved, the sub-lessees under him cannot claim any benefits under Act XXV of 1955 against the owner of the land. See Ganapathi Aiyar v. Ayyakannu (1961)1 M.L.J. 217 : I.L.R. (1961) Mad. 452 : (1921) 74 L.W. 114, The cultivating tenant on sub-lease himself ceasing to cultivate, would also lose the protection of the Act. The Civil Court's Jurisdiction to recover possession of the land in such circumstances from the sub-tenants in actual possession is not taken away by the Act. The landlord can have eviction against all of them in the civil Court, none of them being entitled to the benefits of the Act. To oust the jurisdiction of the civil Court in a suit in ejectment, three conditions must be satisfied, one, the occupant must be a cultivating tenant, two he must be entitled to the benefits of Madras Act XXV of 1955, and three there must be a possibility of his securing one or other of the reliefs open to a cultivating tenant, before the Revenue Court. The requisites for ousting the jurisdiction of the civil Courts are clearly wanting in the case. P.W. 4 does not claim any protection under the Act. He had promised to surrender possession to the plaintiffs with the end of the agricultural year and so he stands ex parte in the suits and supports the plaintiffs as P.W. 4.

7. Learned Counsel for the appellants would question the correctness of the , decree even if the finding that P.W. 4 is the cultivating tenant of the lands and that he is not a mere intermediary or farmer of rent, cannot be challenged in second appeal. He submits that notwithstanding these findings, D.Ws. 1 and 2 can resist the actions for ejectment under the very definition of a ' Cultivating Tenant ' under Madras Act XXV of 1955. Learned Counsel reads from the Civil Court Manual--Madras Act--Volume II, 7th Edition 1967, published by the M.L.J., the Explanation given in the definition of ' Cultivating Tenant ' in relation to any land. The definition therein given runs thus;

Section 2 (aa) ' Cultivating Tenant' in relation to any land:

1. means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied, and

2. includes:

(i) any such person as is referred in Sub-clause (1) who continues in possession of the land after the determination of the tenancy agreement,

(ii) in the District of Tiruchirapalli, a kaiaeruvaramdar or a mattuvaramdar who works on the land under an engagement with the landlord for remuneration by a share in the crop in respect of which the work is done, and

(iii) the heirs of any such person as is referred to in Sub-clause (1) or Sub-clause (2) (i) and (ii), but does not include a mere intermediary or his heirs.

Explanation.--A sub-tenant shall be deemed to be a cultivating tenant of the holding under the landlord if the lessor of such sub-tenant has ceased to be the tenant of such landlord.

The foot note shows that the definition is as a result of amendment by Madras Ordinance I of 1958.

8. Counsel for the appellants stresses on the Explanation which provides that a sub-tenant shall be deemed to be a cultivating tenant of the holding under the landlord if the lessor of such sub-tenant has ceased to be a tenant of such landlord, Resting his argument on the Explanation, it is submitted that as admittedly according to the plaintiffs in the suit, P.W. 4 has ceased to cultivate the land himself, the sub-tenants under him must be deemed to be ' cultivating tenants ' under the respective landlords. Before examining the applicability of the Explanation to the facts of these cases, I have first to solve the problem whether at all this Explanation could be read in the definition of a cultivating tenant and whether this Explanation has been current as part of the Act during the relevant period and is available to the appellants. Learned Counsel for the plaintiff-landlords questions the correctness of the definition relied on for the appellants and refers me to a publication by the Law Department of the Government of Madras, Revenue Acts and Regulations, corrected upto the 31st December, 1966, which contains the Madras Cultivating Tenants Protection Act, 1955. It is printed in 1968 and stated to be prescribed for the Revenue Tests of the Special Test Examination of the Government of Madras. The definition of Cultivating Tenant as found in this Government Publication runs thus;

2 (aa) 'Cultivating Tenant' in relation to any land means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied, and includes.

(i) any such person who continues in possession of the land after the determination of the tenancy agreement; and

(ii) the heirs of such person, but does not include a mere intermediary or his heirs.

9. With reference to this definition all that is found in the foot note in this publication is that this clause was relettered as (aa) by Section 3 (i) of the Madras Cultivating Tenants Protection and Payment of Fair rent (Extension to added territories) Act, (XXXIII of 1963). No amendment of the text of this definition of cultivating tenant is indicated in this publication. The problem is which is the text of the definition that has to-be followed. The M.L.J. Manual points that the Act XXV of 1955 was amended by Ordinance I of 1958, Act XIX of 1958, Act XXXII of 1961, Act XXXIII of 1963 and Act VIII of 1965. Now to go to Ordinance No. I of 1958, this is an ordinance promulgagcd by the Governor of Madras on 5th January, 1958, and published in the Gazette on 6th January, 1958. It is headed 'An Ordinance further to amend the Madras Cultivating Tenants Protection Act, 1955, and the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956'. The relevant part of the Ordinance reads:

Whereas the Legislature of the State is not in session and the Governor of Madras is satisfied that circumstances exist which render it necessary for him to take immediate action:

And whereas the instructions of the President have been obtained in pursuance of the proviso to Clause (1) of Article 213 of the Constitution:

Now, therefore, in exercise of the powers conferred by Clause (1) of Article 213 of the Constitution, the Governor hereby promulgates the following Ordinance:

1. Short title and commencement.'--(1) This Ordinance may be called the Madras Cultivating Tenants Protection and Payment of Fair Rent (Amendment) Ordinance, 1958.

(2) It shall come into force at once.

2. Amendment of Section 2 of Madras Act XXV of 1955.--In the Madras Cultivating Tenants Protection Act, 1955 (Madras Act XXV of 1955), for Clause (a) of Section 2, the following clause shall be substituted, namely:

(a) ' Cultivating tenant' in relation to any land:

(1) means a person who carries on personal cultivation on such land, under a tenancy agreement, express or implied, and

(2) includes:

(i) any such person as is referred to in Sub-clause (1) who continues in possession of the land after the determination of the tenancy agreement,

(ii) in the District of Tiruchirapalli, a kaiaeruvaramdar or a mattuvaramdar who works on the land under an engagement with the landlord for remuneration by a share in the crop in respect of which the work is done, and

(iii) the heirs of any such person as is referred to in Sub-clause (i) or Sub-clause (2) (i) and (ii) but does not include a mere intermediary or his heirs.

Explanation.--A sub-tenant shall be deemed to be a cultivating tenant of the holding under the landlord if the lessor of such sub-tenant has ceased to be the tenant of such landlord.

10. It will be seen that the text of the definition found in the M.L.J. Manual is the definition in terms of the Ordinance No. I of 1958. It is an admitted fact that the Ordinance was not replaced by an Act with reference to this definition. Learned Counsel for the respondents submits that as the Ordinance has not been followed up by any Act of the Legislature under Article 213 of the Constitution, it ceased to operate on the expiration of six weeks from the re-assembly of the State Legislature, and that quite properly the Government publication has retained the old unamended definition. It is not denied as it cannot be, that during the period of its life, the Ordinance had the same force and effect as an Act of the Legislature of the State assented to by the Governor. Article 213 (2) provides so Under Article 213 the power of the Governor to legislate by Ordinance is co-extensive with the power of the Legislature of the State, except that an Ordinance can be only of the limited duration. As what can be achieved by means of a regular legislation through the Legislature, can when the Legislature is not in session also be achieved by an Ordinance duly promulgated, it is manifest that an Act of the Legislature can be repealed or amended by an Ordinance. See observations of Harris, C.J., in Jnan Prosanna v. Province of West Bengal A.I.R. 1949 Cal 1. What the learned Counsel for the respondents submits is that an amendment of an Act by an Ordinance whether by addition or by substitution can have validity only during the subsistence of the Ordinance and when the Ordinance ceased to have force, and expired by efflux of its period, the amendment went out of the statute with it. Learned Counsel drew my attention to the fact that a Bill to replace the Ordinance in its terms was introduced on the re-assembly of the Legislature but that Bill did not become law. There was a clause in that Bill providing also for repeal of the Ordinance. So far as the Kaiaeruvaramdar and Mattuvaramdar of the Tiruchirapalli District are concerned, a comprehensive Act--Act XXXVI of 1958 was passed. It is urged on this, that the Legislature did not intend to make the amendment a feature of the Act, and only allowed it to run its course. It is not contended that there was a disapproval of the Ordinance by the Legislature.

11. As I see it, if in law the amendment in the Act as carried out by the Ordinance stood notwithstanding the expiration of the Ordinance, the failure of the Government printer to show the amendment in a Government publication of the Act will not affect the currency of the amended text as a statutory provision. Laws, which under the Constitution, include Ordinance--See Article 367 (2)--have their sanction from the appropriate legislative authority making them and do not depend upon for their force and effectiveness on the Government Printers texts of the law or the law Secretariat's compilation of the law. No statutory rule that any Government Edition of a statutory law has to be regarded as the sole repository of the correct text of law has been placed before me by Counsel, as for instance the conclusive proof provided in Section 7 (a) of the Madras General Clauses Act on publication in the Official Gazette of a Rule that the rule has been duly made. It will no doubt be a new terror in the interpretation of law, if one has to grope for the authentic text of the law and in the process reject Government Publication. But that cannot be avoided when the position is clear, as the Government printer with his omissions or commissions cannot take the place of the Legislature and the Laws officially gazetted.

12. Section 57 of the Evidence Act provides that the Court shall take judicial notice 6f all laws in force in the territory of India. The section provides that the Court may resort for its aid to appropriate books or documents of reference. Section 78 of the Evidence Act states that the following documents may be proved as follows:

(1) Acts, orders or notifications of the Central Government in any of its Departments or the ' Crown Representative ' or of any (State) Government or any Department of any (State) Government:by the records of the Department certified by the Heads of those Departments respectively, or by any document purporting to be printed by order of any such Government (or as the case may be of the Central Government).

The Evidence Act does not make the production of a copy of the Act printed by the Official Printer or by order of Government conclusive of the correctness of the text of the Act printed, only a mode of proof is indicated. In the present case we have the ' Cultivating Tenants' Protection Act, before the issue of the Ordinance and we have the Ordinance I of 1958 both published in the Official Gazette. Then we have the latest print of the Act issued by the Government in one of their publications. The Government publication shows a revivor of the definition of the ' Cultivating Tenants' Protection Act without the amendment made by Ordinance I of 1958. A private publication of Madras Acts published by the M.L.J. Press shows the definition of cultivating tenant as substituted by Ordinance I of 1958. The question is, which version of the text is the correct one, which has statutory force. The latter would be correct, if the amendment carried out by the Ordinance enured beyond the life time of the Ordinance. The former would be correct if the Ordinance merely suspended the original definition, and the amendment was as temporary in character as the Ordinance. This question has to be answered by the Court purely as an inference of law, Craies in Statute Law VI Edition has' to say the following on this aspect of the matter. At page 45 we find it said:

When the authenticity and validity of a Statute are ascertained the next questions arising upon its construction are the correctness of the text vouched and the mode of solving any doubts arising on that head. In case of doubt as to the text of the Statute which is to be judicially noticed, it is for the. Judges to refer to the record or document containing the most authentic copy of the Statute.

At page 48, the learned author puts it thus:

In no case is the Official print made conclusive evidence as to the text of a statute.

It will be convenient here to set out Article 213 (2) of the Constitution.

213 (2) : An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor but every such Ordinance:

(a) shall be laid before the Legislative Assembly of the State or where there is a Legislative Council in the State, before both the Houses, and small cease to operate at the expiration of six weeks from the re-assembly of the Legislature or if before the expiration of that period a resolution, disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or as the case may be, on the resolution being agreed to by the Council; and

(b) may be withdrawn at any time by the Governor.

The Article provides that the Ordinance which shall have the same force and effect of the Legislature ' shall cease to operate ' at the expiration of six weeks from the re-assembly. That is, thereafter it shall have no force. The Ordinance in question here came into force immediately on its promulgation and by Section 2 substituted a new definition for cultivating tenant instead of the existing one. The purpose of the Ordinance was achieved the moment it was promulgated. Once the substitution was brought about by promulgation of the Ordinance, the subsequent currency of the Ordinance was unnecessary. The Ordinance spent itself immediately on its promulgation, and need* not be operative thereafter even during the remaining period of six weeks to maintain the amendment. Its operation got exhausted by the accomplishment of the purpose for which it was passed. It may be that the Legislative Secretariat who originally introduced the Bill in terms of the Ordinance providing for the repeal of the Ordinance thought that the whole procedure was unnecessary. Questions may arise as to Section 4 of the Ordinance but we are not concerned with that provision. Madras Act (XXV of 1955) itself came in as a temporary Act and was repeatedly continued till by (Madras Act VIII of 1965,) it was made a permanent Act. The fact that during the relevant period, Act (XXV of 1955) was a temporary Act cannot in my opinion affect the question. Though not relevant it is pertinent in the context, to refer to Section 8-A of the Madras General Clauses Act of 1891 which deals with the effect of repeal of an Act making textual amendments in a previous Act. Section 8-A provides:

Where any Act to which this Chapter applies repeals any enactment by which the text of any previous enactment was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.

Pointing out the difference between expiration of a temporary Act and the repeal of a perpetual Act, Craies on Statute Law, VI Edition at page 408 quotes Parke, B who in Steavenson v. Oliver (1841) 8 M. & W. 234 : 151 E.R. 1024, said:

There is a difference between temporary statutes and statutes which are repealed ; the latter (except so far as they relate to transactions already completed under them) become as if they had never existed ; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction.

In the present case there has been no repeal of the Ordinance and Section 8-A has no application, but the Ordinance is a temporary legislation and the duration of its operation is constitutionally specified. On its promulgation subject to its inherent limitations, it had all the force and effect of an Act of the Legislature. All that the Constitution says is that the Ordinance shall cease to operate after the period, Does it necessarily involves that on the expiry of its period, all that had been done is automatically undone, even when its force is not necessary to maintain the thing done. Even if it is not so universally, when the Ordinance amends laws do the amendments cease to survive the Ordinance? Can it not be said that if an amendment once effected is continued in the statute book, the Ordinance is not thereby being continuously enforced?

13. In State of Orissa v. Bhupendra Kumar : AIR1962SC945 , the Orissa Municipal Election Validation Ordinance cured the invalidity in the Cuttack Municipal elections. But the Ordinance lapsed after six months. And the question was whether the invalidity which was. cured by the Ordinance was revived on the expiry of the Ordinance? Gajendragadkhar, J., (as he then was), who delivered the judgment for the Court observed:

in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any flexible rule. If the right created by the statute is of an enduring character and has vested in the person that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person, the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter.

Proceeding we find at page 954 of the Report the following observation:

Therefore even as regards the effect of the repealing of an earlier Act made by a temporary Act, the intention of the temporary Act in repealing the earlier Act will have to be considered and no general or inflexible rule in that behalf can be laid down in some cases the repeal effected by a temporary Act would be permanent and would endure even after the expiration of the temporary Act.

The learned Judge refers to the dicta of Parke, B. in Steavenson v. Oliver (1841) 8 M. & W. 234 : 151 E.R. 1024, above cited and extracts with approval the terse expression of the principle by Lord Ellenborough, C.J., in Warren v. Windle (1803) 3 E. 205 : 102 E.R. 578 :

a law, though temporary in some of its provisions, may have a permanent operation in other respects. The State 26 Geo. 3 c.108 professes to repeal the statute of 19 Geo.2.c. 35, absolutely, though its own provisions which it substituted in place of it, were to be only temporary.

The following observations of the Supreme Court in the case gives a guide line for determining the extent of the operation:

In our opinion having regard to the object of the Ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired, the validity of the elections came to an end and their invalidity was revived. The rights created by this Ordinance are, in our opinion, very similar to the rights with which the Court was dealing in the case of Steavenson (1841) 8 M. & W. 234 : 151 E.R. 1024 and they must be held to endure and last even after the expiry of the Ordinance. The Ordinance has in terms provided that the order of the Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires.

Applying the principles found in the aforesaid decision of the Supreme Court and particularly the dicta of Lord Ellenborough, C.J., that a law however temporary in some of its provisions may have a permanent operation in other respects, which the Supreme Court has approved, it appears to me that having regard to the character of the provisions of the Ordinance in relation to the amendment, it is intended to be permanent feature and the amendment having been carried out in the parent Act, it would stand notwithstanding the expiry of the Ordinance in the usual course. The effect of the expiry of an Ordinance which has the force of a temporary Act, must depend upon the nature of the provisions contained in the temporary Act--whether they have to be of an enduring character or not. No doubt as pointed out by the Supreme Court in the aforesaid case referring to the decision in S. Krishnan v. State of Madras : [1951]2SCR621 .

The general rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which are being taken against a person under it will ipso facto terminate as soon as the statute expires ,

and the provision of the General Clauses Act in relation to the fact of repeal of Acts do not apply to a temporary Act. But here what is required is not the continued operation of the temporary statute and the nature of the provision reveals that the intention of the Legislature is to effect a permanent substitution in the Act, not just for the life of the Ordinance. In my opinion having regard to the principles evolved it would not make any difference that we are here concerned with the amendment of an Act and not specific rights acquired by individuals under an amendment made by a temporary Act.

14. In this view it is not necessary to discuss cases like the one in State of Uttar Pradesh v. Jagamander Das : AIR1954SC683 , referred to by the learned Counsel for the respondents. In State of Uttar Pradesh v. Jagantandar Das : AIR1954SC683 , the Supreme Court held that an expired Act is not covered by the rule enunciated in Section 6 of the General Clauses Act which modifies the General rule that when a statute is repealed or comes to an automatic end by efflux of time, no prosecution for acts done during the continuance of the repealed or expired Act can be commenced after the date of its repeal or expiry because that would amount to the enforcement of a repealed or dead Act.

15. It is necessary to refer at some length to the decision of the Judicial Committee in Gooderham & Worts v. C.B. Corporation A.I.R. 1949 P.C. 90, a case from Canada. In that case the validity of a lease under the Canadian Radio Broadcasting Act, 1932, came up for consideration. Section 9 (b) of the Act which empowered the Broadcasting Commission to acquire existing private stations by lease gave an unrestricted and unconditional power in the matter. But before the lease in question was signed, a temporary Act was passed which repealed Section 9 (b) and substituted a new paragraph whereby the power of the Commission to acquire the existing private stations by lease was expressly made subject to the approval of the Governor in Council. The operation of the amending Act was continued down to 30th June, 1935 by two further Acts. Then an Act was passed finally on 5th July, 1935, whereby the operation of the amending Act was extended to 31st March, 1936 but only till then. The sections of the temporary Acts prescribing successive dates of expiry of the temporary legislation were repealed. With reference to the lease that was entered into by the Commission with the appellants before the Judicial Committee question was raised as to its validity in reference to the approval of the Governor-in-Council. The following observations of the Judicial Committee in that connection do appear to support the respondents herein:

The sections of the three temporary Acts prescribing successive dates of expiry of this temporary legislation were repealed. The result is that on 31st March, 1936, the temporary legislation contained in the first Act of 1933 reepealing provisions of the principal Act of 1932 and substituting other provisions came to an end not by repeal of the temporary legislation but by the efflux of the prescribed time. No question as to the revival of the temporarily repealed provisions of the principal Act of 1932 by the repeal of repealing legislation arises. The repeal effected by the temporary legislation was only a temporary repeal. When by the fiat of Parliament the temporary repeal expired, the original legislation automatically resumed its full force; No re-enactment of it was required. This is what Sub-section (3) of the Act of 5th July, 1935 was designed to make clear. The principal statute of 1932 is to be read on and after 1st April, 1936 as if the temporary legislation had never been enacted ; it is to be in force as if there had been no temporary legislation affecting its provisions.

But these observations have to be weighed on the provisions of the Act the Judicial Committee was considering. Sub-section (3) which their Lordships were referring to specifically provided that on and after the first day of April, 1936, the statute of 1932 shall be read as if the temporary statutes had ' never been enacted '. Even then, proceeding their Lordships observed:

Sub-section (3) docs not say that the temporary Acts are for all purposes to be treated as if they had never been enacted. It says only that the principal Act is to be read in future as if the temporary Acts had never been enacted....

Accordingly, in their Lordships' opinion, the respondents are not precluded by the terms of the Act of 5th July, 1935, from now maintaining that under the temporary Act of 23rd May, 1933, the approval of the Governor-in-Council was essential when the lease in question was signed. The appellants are not entitled to say that the Court has been enjoined by Parliament to disregard the temporary Act of 23rd May, 1933, as if it had never been enacted.

It could no doubt be said that the Judicial Committee was dealing with the lease executed during the currency of the temporary Act and they specifically pointed out that on the expiry of the temporary repeal, the original legislation automatically resumed its full force. But here again the language of the related statute is important. The final Act of 1935 by an express provision Sub-section (1) said, that the provision of the first amending Act (by repeal and substitution) shall be deemed always to have been and hereafter they shall be operative and enforced only until 31st day of March, 1936. The repeal and substitution was by specific words kept operative up till a particular period. Actions taken during the period, the Judicial Committee holds have to confirm to the provisions of the temporary Act.

16. It is relevant when on this decision to refer to the Madras General Clauses Act, 1891. Section 23 of the Act makes the Provisions of the Act applicable to Ordinances promulgated by the Governor under Article 213 of the Constitution in like manner as they applied in relation to Madras Acts by the State Legislature. And Section 9 (a) of the Act provides thus:

In any Act to which this chapter applies....(a) for the purpose of reviving, either wholly or partially repealed, it shall be necesary expressly to state such purpose.

In Craies on Statute Law, Page 418, VI Edition, the principle is thus stated:

If an Act which repeals an earlier Act is itself only a temporary Act, the general rule is that the earlier Act is revived after the temporary Act is spent; and inasmuch as ex-hypothesi the temporary Act expires and is not repealed, the rules of construction laid down by Sections 11 (1) and 38 (2) of the Interpretation Act, 1899 do not apply. But there will be no revivor if it was clearly the intention of the Legislature to repeal the earlier Act absolutely.

Whether the expiry of the temporary Act automatically revives the old provisions as temporarily repealed by the amendment, or by the substitution is purely a question of construction. Reference may usefully be made here to the observations of Collins L.J., in New Windsor Corporation v. Taylor L.R. (1898) 1 Q.B. 186,

That an Act which, while substituting temporary provisions only, purports to repeal a prior permanent one will not be read as merely suspending its operation during the currency of the repealing statute unless the intention of the legislature to that effect be expressed was decided by Lord Ellenborough in Warren v. Windle (1803) 3 East 205 : 102 E.R. 578.

There is nothing to suggest in the instant case whether the change in the definition whether looked upon as an amendment, or repeal and substitution was intended to be temporary only. On the amendment being carried out in the parent Act, to that extent the Ordinance ceased to be operative. No doubt the Ordinance as such expired later by efflux of time. It could be well said that a repeal of the Ordinance in the instant case would only be ex abundanti cautela. There are other provisions in the Ordinance particularly Section 4 on which different problems may arise. But we are not confronted with by any such problem here.

17. The Legislature could if it was so minded have by resolution disapproved the Ordinance or by an Act restored the original definition.

18. In Jagendra v. Superintendent, Dum Dum Special Jail AIR. 1935 Cal. 280, referring to Steavenson v. Oliver (1841) 8 M. & W. 234 : 151 E.R. 1024, it is observed:

The principle underlying that decision appears to have been that transaction that have been completed, rights, that have been acquired and penalties that have been incurred while a statute is in force, are not (in the absence of an express provision to the contrary) affected by the mere fact of the statute having ceased to be in force, a principle which has since received statutory recognition in the Interpretation Act of 1889 in the case of express repeal, though not as yet in the case of expiration by effluxion of time. This rule seems to me to be founded not only on considerations of conveneince, but also of reason and justice, and it ought in my opinion to be kept prominently in mind....

In the present case, having regard to also the principle of Section 9 (a) of the General Glauses Act, even though section '8-A dealing with the fact of repeal of an Act making textual amendment in a previous Act is not applicable, it looks to me that the amendment which became a part of the Act continued even after the expiration of the period of the Ordinance. If there is no automatic revival of the original definition of a cultivating tenant on the expiration of the period, and that looks to me to be the position, we will be left without any definition of a cultivating tenant in the Cultivating Tenant Protection Act. Such a consequence is impossible to contemplate. No decision directly applicable has been placed before me and in the light of the foregoing discussion, I am inclined to hold that the substitution of the definition of 'cultivating tenant' by Ordinance (I of 1958) was intended to be continued in the Statute Book even after the expiry of the period of the Ordinance. It was not a temporary measure, suspending for the duration of the Ordinance, the original definition. The Explanation to the definition, the bone of the contention fits in squarely to the parent definition as an integral part of it. The Act specifically excludes the intermediary from the definition of a cultivating tenant. He gets no protection under the Act, but the tenant under him may be a cultivating tenant. The Ordinance obviously intends to protect such tenants who are really tied to the holding from unjust eviction a purpose coeval with the object of the parent Act. A reference to the Explanatory statement accompanying the Ordinance confirms this view. It is said that for the purpose of Madras Act (XXV of 1955), subtenants of holding under a landlord should be deemed to be cultivating tenant if the lessor of sub-tenants ceases to be tenant of such landlord and that the Ordinance gives effect to the object--surely not a temporary purpose.

19. While I am thus led to conclude that the definition of cultivating tenant which governs these cases should be the definition substituted by Ordinance (I of 1958), I find that it cannot help the appellants, as on my interpretation of the Explanation to the definition which is relied upon by the appellants, they will not be entitled to relief in these suits. The Explanation provides that a sub-tenant shall be deemed to be a cultivating tenant of the holding under the landlord if the lessor of such tenant has ceased to be the tenant of such landlord. The Explanation, why for the matter, the definition itself contains several words expressive of the relationship between the person taking land for cultivation under another. We have the expressions, landlord, lessor, tenant, intermediary and sub-tenant. For a person to be a cultivating tenant the prime requirement is, he must carry on personal cultivation of the land under a tenancy agreement express or implied and would include a person who continues in possession of the land after the determination of the tenancy agreement. The Act defines landlord in relation to the holding or part thereof as the person entitled to evict the cultivating tenant from the holding or part. ' Holding' means under the Act a parcel or parcels of land held by a cultivating tenant. Having regard to the definition of personal cultivation in the Act, one thing is clear from the definition of ' Cultivating tenant '. With reference to the same parcel of land, there cannot be two cultivating tenants. There can only be one cultivating tenant with reference to one parcel of land. The Act gives protection from eviction only to the cultivating tenant. But the protection is lost on specified events. A cultivating tenant may be evicted from his holding or any part thereof by the landlord on grounds set out in Section 3 (2). A reading of the Act shows that a person who becomes a cultivating tenant of the land does not cease to be so by losing the protection under the Act and subjecting himself to eviction in terms of the Act. 'In Venkatarama Iyer v. Asan Mohammed Rowther (1961) 2 M.L.J. 277 : (1961) 74 L.W. 795, Srinivasan, J., observed

Quite obviously he was a cultivating tenant when he took lease of the lands and by reason of violating certain of the provisions of the Act, he has brought himself within the scope of those provisions which entail eviction. He does not for the sole reason that he has subleased the lands cease to be a cultivating tenant not amenable to the processes of the Act.

We have to examine the Explanation in this background.

20. In the appeals before me the finding of the Courts below which I have accepted, is that the first defendant in the suits has been the cultivating tenant of the holding The second defendant in the suits have been sub-tenants under him. While there is the first defendant on the holdings as a cultivating tenant of the plaintiffs, the second defendant cannot also claim to be a cultivating tenant of the plaintiffs. The question is does the Explanation make them cultivating tenants under the owner, on the first defendant losing the protection of the Act. I find considerable obscurity in the Explanation, and the only way out is to give the expressions 'lessor', 'sub-tenant' and ' tenant' therein, the meaning appropriate in the context. The Explanation provides that a sub-tenant shall be deemed to be a cultivating tenant of the holding under the landlord if the lessor of the sub-tenant has ceased to be a tenant of such landlord. It looks to me that the sub-tenancy referred to in the Explanation must be under a person who is himself not a ' cultivating tenant'. The Explanation uses the word 'lessor' in relation to the tenancy of the sub-tenant, obviously implying that the subtenancy is not under a cultivating tenant. The Explanation requires for a sub-tenant to be deemed to be a cultivating tenant, that the lessor of the sub-tenant has ceased to be a tenant of the landlord--not that the lessor has ceased to be a cultivating tenant of the landlord. The statutory tenancy is one thing, its privileges another. They may be forfeited and so disentitled to cultivating tenant to protection from eviction. A cultivating tenant may not be a tenant under the general law, his tenancy might have ceased and he might be continuing in occupation as a cultivating tenant, i.e., under a statutory tenancy. We have two expressions, the general expression ' tenant ' and the special expression ' cultivating tenant' in the Explanation. Though the word ' tenant ' standing by itself could include a cultivating tenant, it is obvious when in the Explanation in relation to the landlord the word used is tenant, the more general term is used in a meaning excluding the specific relationship of a cultivating tenant.

21. The sub-lessee from the person holding immediately under the landlord is referred to only as a sub-tenant and it speaks of the lessor of the under-tenant ceasing to be the tenant of the landlord. Adequate significance must be given to the expressions, lessor, sub-tenant and tenant when considered in juxta-position with the expression cultivating tenant. The Legislature must have had a purpose in using the several words. An ordinary tenant may cease to he a tenant of the landlord on the expiry of the period of the lease, by forfeiture or otherwise in accordance with the common law and provisions governing the relationship between the landlord and the tenant. There is no cessation of the statutory tenancy in the sense a tenancy may cease ; the statutory tenant loses his protection. On eviction or surrender, he loses the status of statutory tenant which the law conferred on him. Now the Act seeks to give protection to the actual cultivators of the land and not to farmers of rents and intermediaries. This is brought about in the definition itself when it is specifically provided that the definition of the cultivating tenant does not include a mere intermediary or his heirs. The intention of the Explanation is clear that the termination of the tenancy of persons who are not cultivators, persons who have taken out leases for farming it out to cultivators or as merely collectors of rent should not result in the ousting out of the actual tillers of the soil, lessees from tenants who are just intermediaries. The term intermediary is not defined but the meaning is clear. The reference is to a person who is interposed between the actual occupant of the land and the owner, like ijaradars and persons who take over leases of lands already under cultivation by tenants if we may use the expression over-lessees. But a cultivating tenant cannot secure to his under lessee the statute of a cultivating tenant under the owner by offering to surrender his tenancy. He enjoys certain immunities and after having had the benefit of it for a while, he cannot simply walk out of the picture putting up another as the cultivating tenant, the process getting repeated. The Act while protecting a class of tenants seeks to secure to the landlord his lawful rent in a summary way. To permit cultivating tenants to walk out may deprive the landlord some of the reliefs conferred on the landlord under the Act. It may be that the Legislature while protecting the cultivating tenant who lawfully came on the land did not want them to foist on the landlord irrespective of his inclinations strangers as cultivating tenants. It is one thing if the landlord had left the choice of the tenants of his land in general to a farmer of rent or intermediary or his existing tenants had been brought under an intermediary. It is quite a different thing to give a sub-lessee from a protected tenant who has no interest in the land rights of a protected tenant. In this view I am taking I am fortified by the decision of the Division Bench of this Court in Ganapati Aiyar v. Ayyakannu (1961) 1 M.L.J. 217 : I.L.R. (1961) Mad. 452 : (1961) 74 L.W. 117, where this Court held that an underlessee from a cultivating tenant cannot claim to have any interest in the land derived from the cultivating tenant as such interest as is conferred upon the cultivating tenant is puely personal to him and his heirs. It was observed:

It must be noted that even a cultivating tenant enjoying the privilege of the enactment is only a statutory tenant in respect of whom and in whose favour it is impossible to conceive of an estate as between himself and the landlord. The statutory tenant has only the statutory right conferred on him by the special enactment.

This decision no doubt related to a tenancy prior to Ordinance (I of 1958) and the learned Judges had not to interpret the Explanation introduced by the Ordinance. All the same having regard to the language of the Explanation, one may properly interpret it in accordance with the general principles applicable in such matters. As pointed out in Maxwell on the Interpretation of Statutes, 11th Edition page 183:

In determining either the general object of the Legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, he presumed to be the true one.

22. It follows that the appellants who are only sub-lessees of the cultivating tenant cannot claim to oust the jurisdiction of the Civil Court and seek the protection of the Cultivating Protection Act.

23. In the result, the second appeals fail and are dismissed. There will be no order as to costs.

24. Leave granted.


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