KATHEEM ADAMKUTTY Vs. DAMODARAN NAMBUDIRI

JUDGEMENT

(1.) IN this case the question we have to consider is whether in view of S. 132 of the Kerala Land Reforms Act, 1963 (Act 1 of 1964)the appellant can prosecute the re-delivery application he filed on 17 71957 under S. 5 (2) of the Malabar Tenancy (Amendment) Act No. XXII of 1956. The said provision reads thus: "where before the commencement of the Malabar tenancy (Amendment) Act, 1954 (Madras Act VII of 1954), a landlord has obtained possession of a holding in execution of a decree passed by a Court on or after the 1st July 1942 under clause (5) or clause (6) of S. 14 or under clause (5) or clause (6) of S. 20 of the Malabar Tenancy Act, 1929 (Madras Act XIV of 1930), and such decree would not have been passed if the principal Act as amended by the Malabar Tenancy (Second Amendment) Act, 1945 (Madras Act XXIV of 1945), the malabar Tenancy (Amendment) Act, 1951 (Madras Act XXXIII of 1951), and this Act had been in force at that time the tenant shall be entitled to be restored to the possession of the holding with all the rights and subject to all the liabilities of a tenant if he makes an application in that behalf in the Court which passed the decree within twelve months of the commencement of this Act: Provided that before such restoration is effected, the tenant shall be bound to re turn to the landlord, (i) the value if any, paid by the landlord to the tenant for his improvements, (ii) the kanartham, if any, and (iii) the value of improvements, if any, effected bona fide by the landlord, between the date on which he obtained possession of the holding and the date on which possession thereof is restored to the tenant. " The appellate judge dismissed the application holding that in view of the repeal of the Malabar Tenancy Act. 1929 by S. 132 (3) of Act i of 1964 the appellant is not entitled to prosecute the same as he is no longer entitled to the relief under S. 5 (2) of the Madras Act XXII of 1956,

(2.) THE submission on behalf of the appellant was that his right to continue the application filed under S. 5 (2) of Madras Act XXII of 1956 is not affected on account of Act 1 of 1964 in view of S. 4 of the interpretation and General Clauses Act, 1125. THE said provision which corresponds to S. 6 of the Central Act reads thus: "where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. " THE reliance by the learned counsel for the appellant was on sub-sections (c) and (e) of the above provision. In view of the decisions of the Supreme Court which we shall immediately discuss the interpretation of the above Section admits of no doubt. B. K. Mukherjea, J. in State of Punjab v. Mohar Singh AIR. 1955 SC. 84 in dealing with S. 6 of the Central General Clauses act, 1897, the words of which are identical with S. 4 of the Kerala Act observed: "whenever there is a repeal of an enactment, the consequences laid down in S. 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. THE line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests art intention to destroy them. We cannot therefore subscribe to the broad proposition that S. 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. S, 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. " THE above observations are quoted with approval in Indira sohanlal v. Custodian of Evacuee Property AIR. 1956 SC. 77 and Brihan maharashtra Sugar Syndicate v. Janardan AIR. 1960 SC. 794. It is in the light of these principles that we have to examine the facts of the case before us. It will be useful at this stage to reproduce sub-sections (2) and (3) of S. 132 of the Kerala Act I of 1964: 132 (2) "the following enactments as in force in any part of the State of Kerala are hereby repealed, namely. (i) THE Cochin Vermpattamdars Act, VIII of 1118. (ii) THE Travancore-Cochin Prevention of Eviction of kudikidappukars Act, 1955. (iii) THE Malabar Tenancy Act, 1929. (iv) THE Madras Cultivating Tenants (Payment of Fair rent) Act, 1956. " 132 (3 ). "notwithstanding the repeal of the enactments mentioned in subsection (2), (a) any decree passed before the commencement of this Act for the eviction of a tenant from his holding, pursuant to which eviction has not been effected, may on the application of the tenant or the landlord, be reopened and the matter may be disposed of in accordance with the provisions of this Act; (b) any suit for restoration filed under S. 24 or S. 26 or sub-section (3) of S. 53 of the Malabar Tenancy Act, 1929 or any application for determination of fair rent made under S. 16 of that Act or any application for fixation of fair rent made under S. 9 of the Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956, and pending disposal at the commencement of this Act shall be disposed of in accordance with the provisions of the said Acts as if those Acts had not been repealed. " It is unnecessary for the purpose of our discussion to reproduce clauses (c) and (d) of sub-section (3) of S. 132.

(3.) THE above principle should govern the case before us. THE result of our discussion is that the court has no power to grant any relief under S. 5 (2) of Madras Act XXII of 1956. It therefore follows that the application filed under S. 5 (2) of Madras Act XXII of 1956 was rightly dismissed by the courts below. We therefore dismiss the second appeal, but we make do order as to costs. . .