ABDUL WAHAB ROWTHER Vs. PAZHANIMALA

JUDGEMENT

(1.) In this writ petition the petitioner prays for the issue of a writ of mandamus for directing the Subordinate Judge, Palghat, to hear and dispose of C. M. A. 117/1958 filed by the petitioner under S.17 of the Malabar Tenancy Act. The 1st respondent filed an application under S.16 of the Malabar Tenancy Act for fixation of the fair rent in respect of the property involved in the case. The rent court by its order dated 4-12-1958 fixed the fair rent. Being aggrieved by that order the petitioner filed the above C. M. A. before the 2nd respondent, the Subordinate Judge of Palghat, under S.17 of the Malabar Tenancy Act.

(2.) The Steamed Judge dismissed the appeal on the ground that the Malabar Tenancy Act was not in force as it has been repealed by Act IV of 1961 and therefore he has no jurisdiction to hear and dispose of the appeal under the Malabar Tenancy Act. Act IV of 1961 was struck down in respect of its application to ryotwari lands in the Malabar area: and it was held by this court that the repeal of the Malabar Tenancy Act by Act IV of 1961 was inoperative and that that Act would continue to be in force in the Malabar area in respect of the ryotwari lands. Therefore it is clear that the Subordinate Judge had jurisdiction to hear and dispose of the appeal. However, it was argued for the 1st respondent that under Act I of 1964 the Malabar Tenancy Act has been repealed and therefore the Subordinate Judge has no jurisdiction to hear and dispose of the appeal. S.132(3)(b) of Act I of 1964 would indicate that S.16 of the Malabar Tenancy Act is in force even after its repeal by Act I of 1964. That I think would suffice to save an appeal preferred against an order under S.16, as an appeal is only a continuation of the application under S.16. I think that an appeal arising out of the application under S.16 of the Malabar Tenancy Act can be heard and disposed of by the appropriate authority under that Act even though S.17 of that Act is not expressly saved by the repealing clause. Apart from this, I think there was a vested right in the petitioner to have the appeal heard and disposed of in accordance with the enactment, which gave the right to appeal and the repeal of that enactment would not affect the maintainability of the appeal. See AIR 1957 SC 540 , AIR 1960 SC 794 and 1959 KLR 1429. All these rulings would indicate that the right to file an appeal is a vested right and that the repeal of the enactment under which the right of appeal arose would not affect the maintainability of the appeal, but that the repealed Act would continue in force for supporting the appeal filed under it. I think the view taken by the Subordinate Judge, Palghat, is wrong. I would therefore direct him to re entertain the appeal and hear and dispose of it in accordance with law. The writ petition is allowed. No costs.