# K. 'EAPEN CHACKO v. PROVIDENT INVESTMENT CO. (Ray, C.J.) 1027

- **Citation:** [1977] 1 S.C.R. 1026
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Case number:** Civil Appeal No. 1343 of 1969
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-eapen-chacko-v-provident-investment-co-ray-c-j-1027-6887
- **Pages:** 11

## Headnote

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1026
K. EAPEN CHACKO
•
v.
THE PROVIDENT INVESTMENT COMPANY (P) LTD.
November I, 1976
JA. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.J
Kera/a Land Reforms Act (Kera/a 1 of .1964) as amended in 1969
and
1971, Ss. 3(1), 50A, 52, 73, 108, 125 and 132(3)-Scope of.
,
Interpretation of Sllatute--Statute when retrospective.
0
The proviso to s. 3(1)(vii) of the Kerala Land Reforms Act, J96t provided that nothing in clauses (i) to (vii) of s. 3(1) shall affect the rights of
persons who are en~itled to the fixity of tenure immediately before 21 Januarv
1,961 under any law then in force.
The law prevailing
immediate!, before
21 January 1961, was the Malabar Tenancy Ac\, 1929.
Under s. 23 of that
Act a tenant would be liable to be evicted from his holding at the instance of
his landlord if he intentionally committed acts of waste or defaulted in
the
payment of rent for more than 3 months.
The proviso was
amended
by
1969-Amendment Act which came into force on January 1, 1970. The amending AC1! also inserted in the Act new Ss. 50A, 52 and 73.
Section 50A provided that a tenant entitled to fixity of tenure shall have the right to use
his
holding in any manner he thinks fit.
Section 52 provided that a cultivating
tenant shall have a right to cut trees and s. 73 is to
the
effectt
that the
maximum amount mat could be claimed by way of arrears of rent is only
for 3 yearn.
Section 108(2) was also amended and it provided
that
any
decree passed before· the commencement of the section for the dispossession of
a per5on from the land in his possession may on the application
of
such
person be reopened and disposed of in accordance with the provisions of the
1964 Act as amended by the 1969-Act provided dispossession has not been
affected.
Section 125(3) provided that if in any suit or proceeding questions
regarding the rights of a tenant arose. the civil court shall stay such proceedings, and refer the quesmon to the Land Tribunal having jurisdiction over the
area. Section 132(3) provided that any decreEl pursuant to which eviction has
not been effected may, on the application of the tenant or the landlord be
reopened and the mat<ter disposed of in accordance with the provisions
of
the Act.
The respondent owned about 550 acres out of which more than half was
Coffee planted area.
He leased the plantation and
the
rema;ning unplanted
area to the appellant in 1950 for 12 years.
Clause ( 4) of the lease prov:ded
that if the rent was in arrears for 30 days after ,it became due it was lawful
for the lessor to forfeit the lease and re-enter on the land.
Alleging
that
since 1953 the appellant had neglected to pay the rent, me respondent filed the
suit claiming possession of the land, arrears of rent, and damages for waste.
The trial court decreed the suit in 1966 and the decree was confirmed bv the·
High Court with the enhanced damages in Fe1¥uary 1969. In appeal to this
Court the appellant contended that; he was entitled to fixity of tenure; that
the unplanted area was not a plantation and so he wao;, entitled to fixitv of
tenure therein; ~hat the proceedings were to be disposed of in accordance with
the provisions of the 1964 Act as amended by 1969 Amendment Act, that is.
that all questions regarding rights of tenont, ~:od bn<llords could he decided
only bv the Land Tribunal; and that the damages were awarded contrary to
the provisions of the Act as amended.
He therefore. filed
an
application
praying for reopening of the decree passed by the High Court and also contended that in view of the amendments in 1971 the appeal is to be disposed
of. in acco1dance with the provisions of the Act, as amended in 1969 :md
1971.
Dismissing the appeal tio this Court,
HELD ; In the present case, the decree was passed by the trial court as
f
well as by the High Court after the 1964 Act came into force but before the
,
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'
K. 'EAPEN CHACKO. V. PROVIDENT INVESTMENT CO. (Ray, C.J.) 1027
1969 amendment.
The decree was correctly passed in accordance with the
prov

## Text

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1026
K. EAPEN CHACKO
•
v.
THE PROVIDENT INVESTMENT COMPANY (P) LTD.
November I, 1976
JA. N. RAY, C.J., M. H. BEG AND P. N. SHINGHAL, JJ.J
Kera/a Land Reforms Act (Kera/a 1 of .1964) as amended in 1969
and
1971, Ss. 3(1), 50A, 52, 73, 108, 125 and 132(3)-Scope of.
,
Interpretation of Sllatute--Statute when retrospective.
0
The proviso to s. 3(1)(vii) of the Kerala Land Reforms Act, J96t provided that nothing in clauses (i) to (vii) of s. 3(1) shall affect the rights of
persons who are en~itled to the fixity of tenure immediately before 21 Januarv
1,961 under any law then in force.
The law prevailing
immediate!, before
21 January 1961, was the Malabar Tenancy Ac\, 1929.
Under s. 23 of that
Act a tenant would be liable to be evicted from his holding at the instance of
his landlord if he intentionally committed acts of waste or defaulted in
the
payment of rent for more than 3 months.
The proviso was
amended
by
1969-Amendment Act which came into force on January 1, 1970. The amending AC1! also inserted in the Act new Ss. 50A, 52 and 73.
Section 50A provided that a tenant entitled to fixity of tenure shall have the right to use
his
holding in any manner he thinks fit.
Section 52 provided that a cultivating
tenant shall have a right to cut trees and s. 73 is to
the
effectt
that the
maximum amount mat could be claimed by way of arrears of rent is only
for 3 yearn.
Section 108(2) was also amended and it provided
that
any
decree passed before· the commencement of the section for the dispossession of
a per5on from the land in his possession may on the application
of
such
person be reopened and disposed of in accordance with the provisions of the
1964 Act as amended by the 1969-Act provided dispossession has not been
affected.
Section 125(3) provided that if in any suit or proceeding questions
regarding the rights of a tenant arose. the civil court shall stay such proceedings, and refer the quesmon to the Land Tribunal having jurisdiction over the
area. Section 132(3) provided that any decreEl pursuant to which eviction has
not been effected may, on the application of the tenant or the landlord be
reopened and the mat<ter disposed of in accordance with the provisions
of
the Act.
The respondent owned about 550 acres out of which more than half was
Coffee planted area.
He leased the plantation and
the
rema;ning unplanted
area to the appellant in 1950 for 12 years.
Clause ( 4) of the lease prov:ded
that if the rent was in arrears for 30 days after ,it became due it was lawful
for the lessor to forfeit the lease and re-enter on the land.
Alleging
that
since 1953 the appellant had neglected to pay the rent, me respondent filed the
suit claiming possession of the land, arrears of rent, and damages for waste.
The trial court decreed the suit in 1966 and the decree was confirmed bv the·
High Court with the enhanced damages in Fe1¥uary 1969. In appeal to this
Court the appellant contended that; he was entitled to fixity of tenure; that
the unplanted area was not a plantation and so he wao;, entitled to fixitv of
tenure therein; ~hat the proceedings were to be disposed of in accordance with
the provisions of the 1964 Act as amended by 1969 Amendment Act, that is.
that all questions regarding rights of tenont, ~:od bn<llords could he decided
only bv the Land Tribunal; and that the damages were awarded contrary to
the provisions of the Act as amended.
He therefore. filed
an
application
praying for reopening of the decree passed by the High Court and also contended that in view of the amendments in 1971 the appeal is to be disposed
of. in acco1dance with the provisions of the Act, as amended in 1969 :md
1971.
Dismissing the appeal tio this Court,
HELD ; In the present case, the decree was passed by the trial court as
f
well as by the High Court after the 1964 Act came into force but before the
,
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K. 'EAPEN CHACKO. V. PROVIDENT INVESTMENT CO. (Ray, C.J.) 1027
1969 amendment.
The decree was correctly passed in accordance with the
provisions.of the 1964 Act, since the amendments were prospective and not
retrospective. ·[1036 E-F]
( 1) A statute has to be looked into for the general scope and purview of
the statute and at the remedy sought to .be applied.
In that connection. the
former state of law is bo be considered and also the legislative changes
contempleted by the statute.
Words not requiring retrospective operation so as
to affect an existing statut1ory provision prejudicially ought not to
_be
so
construed. It is a general rule that when the legislature alters the nghts of
the parties by taking away or .conferring any right of action, its
enactments.
unless in express terms they apply to pending actions, do not affect them.
If,
however. a statute deals merely with procedure in an action and
does
not
affect ~he rights of the parties, it will be held to apply
prima facie
to
all
"~titm' oending "' well "' future. f!033 E-Gl
Gardner v. Lucas (1878) 3 Appeals Cases 582;
Moon
v.
Durden (1948}
2 Exch. 22 and Smithies v. National Union of Operative
Plasterers
(1909)
K. B.•310, referred to.
(2) The entire land leased out does not come within the
definition
of
plantation, because. the extent of coffee· cultivated area has been found to have·
dwindled to about 100 acres out of the total extent of about 550 acres by
reason of the acts of waste c"Ommitted by !he appellant and ceased to be a
plantation even before 1 January 1970.
The appellant, however. is disentitled
to take advantage of his own wrongs so as to claim statutory benefits which
were also not available to him. [1033 A-B, E-G]
(3) The appellant had been found to be habitual defaulter since 1952 in
the payment of rent and to be guilty of wilful acts of waste before and after
the institution of the snit.
He had denuded the entire tree growth in more
than one half of the area and destroyed more than one half of
the
coffee
planted area, and the remaining part was in an utterly neglected
condition.
Therefore. under s. 23, Malabar Tenancy Act, the appellant had
no
fixity
of tenure on 21 January 1961, and hence was not entitled to the benefit of the
proviso to s. 3(1) either under the 1964 Act or the 1969-Act. [1032 G-H, 1034
B-DJ
(4) The respondent was a Government company.
Under s. 3(1)(i) of the
1964 Act, leases of lands owned by Government companies
are
exempted
from the provisions of Chap. IL Section 13, which is in Chap. II and which
provides for fixity of tenure cannot therefore be invoked by the appellant for·
claiming 'fixity, of tenure under the 1964 Act. [1033 C-D]
( 5) The appellant is disentitled from invoking ss. 50A, 52 and 73 of the
1964 Act as amended in 1969 because, Chapter II of the 1964 Act
is
not
applicable to the lease since the respondent lessor is a Government Comoanv.
Moreover, these sections came into effect on 1st January
1970 and were not
retrospective, but were prospective in operation. [1032 A-D, 1033 H, 1036 A-Bl
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(6) Section 108(3) of the Act as amended in 1971 will permit the i·eopening of the decree only if a person has claims to a right benefit or remedy
which has been· conferred pn him under the Act.
In the present case neither
under the 1964 Act nor under the 1969 Amendment the appellant can claim
the benefit of s. ,SOA because he wilfuUy misused the holding and caused acts
of waste causing 1oss to the lessor and damage and destruction to the holdine.
G~
[1033 H, 1034 .A-BJ
(7) Section 125(1) of the Act which came into force on 1 January 1970;
creates bar against the civil court deciding quesHons required to be settled .by
the Land Board.
This pro\Oision is prospective. and the
proviso
expressly
states that the section shall not apply to proce.edings pending in any
court
at the commencement of the 1969 amending Act. It, therefore, follows that the
proceedings in the present case which were pending at the commencement of
the 1969 Amendment Act are. saved from the operation of s. 125(1).
SecH.
tion 125 (3) is equally prospective. It will be applied with regard
to
the
provisions con!ained in s. 125 ( 1) of the Act.
Matters which will be within
the mischief of s. 125(1) are matters which will arise in suits or proceedings
initiated or originated after the commencement of the Act. It is umound to
l 0 28
SUPREME CoBRT lUlPORTS
[1977] 1 S.C.R.
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sugge~ that. pending prcke~dings which ai'e exempt from the
application of
s. 12)(1) will yet fall within th&t sub-section by reference to s. 1!5(3).
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Therefore, the provisions corital~d in s. 125 are not
applicable
in
the
present case. [1034 G-H, 1035 A"E]
Anantha Narayana Iyer v. Pran 1976 K. L. T. 403, overruled.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1343 of 1969.
From the Judgment and Decree dated 17-2-1969 of the Kerala
High Court in Appeal Suit No. 493 of 1966.
S. T. Desai, S. Krishan Iyer and A.G. Puddisery, for the Appel~tJ.t. ·
T. S. Krishnamoorthy Iyer, K. P. K. Menon, I. N. Shroff
and
.R. P. Kapoor, for the Respondent.
•
The Judgment of the Court was delivered by
RAY, C. J. This appeal is by certificate from the judgment dated
J 7 February, 1969 of the High Court of Kerala.
Tlfe respondent filed this suit agairnt the appellant for recovery of
property with arrears of rent and inesne profits and damages
for
waste.
The property measuring 550.37 acres consisted of 279.86 acres
of planted area and the rest was unplanted area.
By a lease dated 7 October, 1950, the respondent leased out to
the appellant the plantations together with Bungalow, quarters of what
is described as "Beenachi Estate".
The lease was for a period of 12
years with effect from 1 January, 1950. The rent for the first
six;
years was fixed at Rs. 3600/c per annum.
The rent for the second
period of six years was fixed at Rs. 4500/- per annum.
The rent
was payable in advance on 1 January of each calendar year.
The respondent's case is that since 1953 the appellant failed and
neglected to pay rent fixed under the lease.
Clause 4 of the lease
provid~d that if the rent would be in arrears and unpaid for 30 days
after the same would become due it would be lawful for the lessor
respondent to forfeit the lease notwithstanding the fact that the term
had not expired.
The lease provided that the respondent lessor would
re-enter the premises in that event and the lease would cease and
determine. The i:espondant by notice dated 5 March, 1959 called upon
the appellant to quit, vacate and deliver to• the respondent vacant
possession of the property.
The notice was consequent upon the wilful default of the appellant to pay rent and consequei!t on the several
breaches of covenants as alleged in the notice.
The respondent filed the suit on 5 February, 1960. The defendant
claimed possession of the property known as the Beenachi Estate together with movable, a declaration that the lease had determined and
claimed arrears of rent, mesne profits a sum of Rs.
2,20,394/- as
damages for waste.
At the trial the appellant raised the plea that the tenancy
is
governed by the Malabar Tenancy Act, and, therefore, the suit is
barred by Act 1 of 1957.
The re1spondent pleaded that the tenancy
/
K. EAPEN CHACKO v. PROVIDENT INVESTMENT CO. (Ray, C.J.) 1029
is covered by exception in section 2 ( 1) of the Malabar Tenancy Act
VII of 1964.
The trial Court accepted the preliminary objection of
the appellant and dismissed the suit.
The Hit;h Court on appeal remanded the case to the Subordinate
Judge for fresh trial.
The trial Court on remand decreed the suit on
25 October, 1966.
The respondent obtained a decree for eviction
with arrears of rent and damages amounting to Rs. 1,00,000/- for
certain items and a further sum of Rs. 51,030/- for other items of
damages.
The trial Court held that in view of the provi!So to section
3(1)(vii) of the Kerala Land Reforms Act I of 1964 hereinafter
re~.red to as the 1964 Act a tenant having fixity of tenure under the
Act as it stood on 21 January 1961 would continue to enjoy it under
the 1964 Act notwithstanding the fact that the landlord might be a
corpc.ation owned or controlled by the Government of India or by
any State Government in India as provided in section 3 ( 1) ( c) of the
1964 Act. The appellant was held by the trial Court to be disentitled
to resist the prayer for eviction in the suit because his holding was· a
plantation exceeding 30 acres in extent a1s
provided in section
3 (1) (vii) of the 1964 Act.
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The appellant filed an appeal.
The re5pond~nt filed cross objections.
The High Court dismissed the appellant's appeal and allowed
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the cross objections of the respondent.
The High Court enhanced
the damages from Rs. 1,00,000/- to Rs. 2,20,394/- and confirmed
the award of Rs. 51,030/- as damages under other heads.
Counsel for the appellant contended that the High Court was in
error in taking the view that the appellant was not entitled to claim
fixity of
tenure.
Counsel for
the
appellant relied on section
3(1) (vii) of the 1964 Act as amended by Act 35 of 1969.
Before
the 1969 Amendment the 1964 Act provided in clause (vii) to section
3(1) that nothing in this Chapter shall apply to clauses (i) to (vii)
of section 3 to the rights of' persons who were
entitled to fixity of
tenure immediately before 21 January 1961 under any law then in
force.
The aforeisaid proviso was substituted by the Amendment Act
35 of 1969 as follows :----,.
-
"Provided that nothing in
clauses (i) to
(vii)
shall
-apply in the cases of persons who were entitled to fixity of
tenure immediately before 21 January 1961 under any iaw
then in force or per.sons claiming under such persons".
The High Court held that only rights of persons but not fixity of
tenure were 1mv~d.
Counsel for the appellant contended that the effect of proviso to
section 3(1) (vii) of the 1964 Act as amended in 1969 is that fixity
of tenure and rights with regard to the same are both saved, and,
therefore, the High Court should have held that the appellant was
entitled to fixity of tenure.
The second contention of counsel for the appellant is that the
High Court was in error in holding that under section 23 of the
Malabar Tenancy Act 1929 the appellant was liable to be evicted
by the landlord and that the appellant had no right to resist eviction.
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SUPREME COURT REPORTS
[1977} 1 S.C.R:..
The contention of the appellant was that assuming the High Court
was right on the above conclusion, the provisions containe~ in section
108 sub-sections (2) and (3) of the 1964 Act as amended in 1969
require the Court to 'YJply the law retrospectively in respect of_ pending
suits, appeals, applications, decree where dispossession had not been
effected. It is said by the appellant that the relevant date for the
application of these sub-sections was I January 1970 on which date
the 1969 Amendment Act came into· force.
It is contended on
behalf of the appellant that the appellant had not been disposse1ssed.
from the property on or before 1 January, 1970, but only an. orde:
appointing Receiver was made by the
High Court on 17 February,.
1969. The property, therefore, according to the appellant,. contii.wed.
to be on lease and the order appointing Receiver could not have . the
affect of dispossession.
The appellant, therefore, under section !08(2)•
of the 1964 Act claimed to have the decree reopened for disp"5al in:
accordance with section 125 (3) of the 1964 Act as amended in 1969
Section 108(2) of the 1964 Act as amended is as follows :-
·
"Any decree passed before the commencement of this
section for the dispossession of a peroon from the land in·
his possession, pursuant to which . dispossession has not
D
been affected, may, on the application of such person, be
reopened and the matter may be disposed of in accordance
with the provisions of the principal Act as amended by this
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Act"~
.
By the principal Act· is meant the 1964 Act.
Section 125(3) oE the:
1964 Act as amended in 1969 'is as follows :-
"If any suit or other proceeding in question regarding
rights of a tenant or· of a kudikidappukaran (including a
question as to whether a person is a tenant . or a kudikid~ppukaran) arises, the civil court shall stay the suit or:
other proceeding and refer such question to. the Land· Tri:.
bunal having jurisdiction over the area in \vhich the land or
part thereof is situate together with the relevant records
for the decision of that question only".
·
Extracting these pro\isions counsel for the appellant contended:
that section 125(3) of the 1964 Act as amended in 1969 indicated'
that all questions regarding rights of tenants could be decided only by·
the Land Tribunal to which a reference has to be made.
The third contention on behalf of the appellant .!s that the .1964'.
Act'as amended in 1969 inserted section SOA to the 1964 Act the
effect of which is that notwithstanding anything contained in any law·
or crintfact, or in any judgment, decree or· .order of court, a ten;int
entitled to fixity of tenure shall have the right to use his holding in
any manner he thinks fit.
The 1964 Act as amended in 1969 introduced section 52 which was also relied on by the appellant, to show
that the cultivating tenant shall have a right to cut such trees and the
landlord. or the intermediary shall not have .the right tci cut any such
trees.
Section 73 of the 1964. Act which was introduced in 1969
is to the effect that the ma:<imum amount that could be claimed by
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:K. EAPEN CHACKO V. PROVIDENT INVESTMENT CO. (Ray, C.J.) 1031
way of arrears of rent for the period ending May 1968 notwithA
·standing an9y contract, judgment ot order of court is only 3 years and
·nothing more.
These provisions, viz., sections 50-A, 52 and 73 which were in-
:troduced by the 1969 Amendment Act were relied on by the appellant
. for the purpose of showing that the appellant would be entitled to use
·the holding and to cut trees and the maximum arrears of rent could
·:be claimed for a period of three years and not more.
Counsel for the appellant next contended that the trial Court
wai-e ~n error in finding that the holding of the appellant .lls a plantation m the context of section 3(1) (viii) of the 1964 Act.
The contention on behalf of the appellant was that assuming that the trial
Court was right in its conclusion as regards the area of 279.86 acres
which according to the respondent was the extent of coffee plantation
on the date of the lease, in respect of the remaining extent of land the
appellant was entitled to fixity of tenure in view of the proviso to
clauise 3(1) (viii) of the 1964 Act.
The crucial date according to the appeilant is 1 January 1970
when the 1969 Amendment Act came into force.
The effect of section 108 (2) and (3) of the 1964 Act read with sec:ion 125 (3) of
the Act is according to the appellant, that the questions as to whether
the whole or portion of the land is a plantation, whether there is
fixity of tenure and whether the respondent can claim damages could
all be disposed of only by the Land Tribunal.
The appellant contended that the judgment of the High Court has, therefore, to be set aside
and this Court ishould direct that the matters may be disposed of by
the Land Tribunal.
As a corollary counsel for the appellant contended that the trial
Court was wrong in holding that the appellant was liable to pay
damages and in view of the provisions contained in
sections
50-A
and 52 of the 1964 Act as amended in 1969 read with section 125(3)
of the Act as amended all matters would be decided by the Land
Tribunal.
Counsel for the appellant relied on section 108 (3) of the Act
which as changed by amendment in 1971 is as follows :-
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"If in any suit, application, appeal, revision, review,
proceedings in execution of a decree or other proceedings
pending at the commencement of this section before any
court, tribunal, officer or other authority, any person claims
any benefit, right or remedy conferred by any of the proG
visions of the principal Act, or the principal Act as amended by this Act, such suit, application, appeal, revision,
review, proceedings in execution or other proceedingis shall
be disposed of in accordance with the provisfons of the
principal Act as amended by the 1971 Act."
Jn short the contention of the appellant is that "'the whole proH
ceedings in the suit and the pleas therein are to be disposed of in
accordance with the
provisions
of the
Act.
According to
the
:appellant the provisions of the Act indicate that there should not be
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SUPREME COURT REPORTS
[1977] l S.C.R.
any decree for eviction and further that the damages awali()ed against
the appellant cannot be sustained by the provisions of the 1964 Act
as amended by Act 35 of 1969, Act 25 of 1971 and' Act 17 of 1972.
The appellant filed an application praying for reopening the decree
passed by the High Court and in that behalf has invoked section
132(3) of the 1964 Act and section 108(2) of the Act as amended
in 1969. The appellant also prayed that section 108 ( 3) as introduced in 1969 and as amended in 1971 indicates that the appeal is
to be disposed of in accordance with the provisions of the 1964 Act
as amended in 1971.
••
Section 132 ( 3) of the 1964 Act is as follows :-
"Notwithstanding the repeal of the enactments menti°'1ed in sub-section (2) 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."
This provision according to the appellant establishes that it applies.
to decree passed before the commencement of Act 1 of 1964 and
also pursuant to which eviction has not been effected.
In the present case, the decree was passed by the trial Court as
well as by the High Court after the 1964 Act came into existence.
The decree was passed in accordance with the provisions of the 1964
Act but before the amendment in 1969.
The appellant claimed benefit of the proviso to section 3 ( 1) (vii)
of the Act. The benefit claimed is fixity· of tenure.
The proviso as
it stood when the 1964 Act came into operation was that nothing in
clauses (i) to (vii) of section 3 (1) of the Act "shall affect the rights
of persons who are entitled to the fixity of tenure immediately before
21 January 1961 under any law then in force".
The change substituted by the 1969 Amendment Act is that nothing in clauses (i) to
(vii) of section 3 (1) of the Act "shall apply in the case of persons
who were entitled to fixity of tenure immediately before 21 January
1961 under any law then in force or persons claiming under such per·
sons". The prevailing law on 21 January" 1961 was the Malabar
Tenancy Act.
If, therefore, the appellant did not or could not have
fixity of tenure on 21 January 1961 under the Mal:ibar Tenancy Act
he would not have any claim to the benefit of fixity of tenure under
the 1964 Act or even under the 1964 Act a:s amended in 1969.
Under section 23 of the Malabar Tenancy Act a Verumpattom tenant
would be liable to be evicted from his holding at the instance of his
landlord if he intentionally committed acts of waste
sufficient to
·impair materially the value or utility of the holding for the purpose
for which it was let to him or that he committed default in the payment of stipulated rent for more than 3 months after its due date, or
allowed stra.ngers to trespass upon the holding. In the pdesent case,
the appellant has been found to be a habitual defaulter since ~952 in
the payment of rent fixed under the lease of 1950 under which the·
(
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K. EAPEN CHACKO V. PROVIDENT INVESTMENT CO. (Ray, C.J.) 1033
appellant was let into possession of the estate.
Further the appellant
has been found to be guilty of wilful acts of waste ~efore and after
the institution of the suit.
The appellant has also been found to have
denuded the entire tree growth in more than one half of the area of
the estate.
The appellant has been found to have destroyed
more
than one half of the coffee planted area that had been leased to him.
It was found that the remaining part of the coffee plantation as
a
result of the acts of the appellant is in utterly neglected condition.
The facts circumstances of the present case as found by the
courts establish that the appellant had no fixity of tenure on 21 Januar':/ ~961 warranting grant of any benefit, remedy or right against
eviction. In fact, this claim was also canvassed by the appellant and
found .against him by the court.
The respondent in the present case is a Corporation owned or controlled by the Government of Madhya Pradesh and, is, therefore, a
Government company under the Indian Companies Act.
The appel-
•lant is disentitled to claim fixity of tenure under section 13 of the Act
inasmuch as under the 1964 Act and under amendment in 1969 leases
of lands owned by the Government owned Companies are by section
3(l)(i) of the 1964 Act specifically exempted from the provisions of
Chapter II of the Act. Section 13 which is in Chapter II cannot,
therefore, be invoked by the appellant. The right to fixity of tenure is
denied to a tenant in respect of a holding owned by or belonging to
a Government controlled Company.
The appellant is, therefore, not
entitled to claim fixity of tenure under the 1964 Act as amended.
The Beenachi Estate in the present case does not come within the
definition of "plantation" in section 2 ( 44) of the 1964 Act as amended
in 1969 because the extent of coffee cultivated area has been found by
the court to have dwindled to a little over 110 acres in extent out of
the total extent of a •little over 550 acres. Further, tapioca has been·
grown by the Receiver in the areas other than the coffee planted area.
Therefore, the Estate ceased to be a property principally planted with
coffee even before 1 January 1970 when the 1969 Amendment Act
came into force. Under the lease the coffee planted area was 279.86
acres and the remaining exterit of 271 acres was also intended to be
extended area to be planted with coffee. The courts have found that ·
instead of coffee plantation the appellant deliberately committed waste
during the progress of liti~ation in the courts by reducing the extent of
coffee plantation to just 168.58 acres.
This area dwindled to little
over 110 acres bt!fore 2 March 1969 when the Receiver was appointed
by the High Court. The large extent of vacant areas within the estate
was on account of deliberate devastation of the said area by denudation
of tree growth during the pendency of the litigation in the courts.
Therefore, it is obvious that the appellant is dis-entitled to take advantage of his own wrongs so as to claim statutory benefits which are
also not available to the appellant. The property by reason of acts
of waste, damage, devastation, denudation ceased to be coffee plantation
on 1 January 1970 when the 1969 Amendment came into effect.
Section 108(3) of the Act as amended in 1971 will pennit the
reopening of the decree only if a person has claims to right, benefit or
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1034
SUPREME COURT REPORTS
(1977] 1 S.C.R.
remedy .which has been conferred on him under the Act. In the present
case neither under the Act of 1964 nor under the 1969 Afnendment
Act the appellant can claim the benefit of section 50-A of the J 964
Act .as amended in 1969 because the appellant wilfully misused the
holdmg and caused acts of waste causing loss to the lessor and damage
and destruction to the holding.
The High Court rightly held that under the proviso to clauses ( i)
to (vii) of section 3 (1) of the I 964 Act the appellant had no right to
fixity of tenure under the Malabar Tenancy Act.
Section 23 of the
Malabar Tenancy Act conferred a right on the landlord to evict the
tenant who intentionally and wilfully committed such acts of wasti ~s
are calculated to impair materially and permanently the value or
. utility of the holding for agricultural purposes and who has not paid
within three months after the due date, the whole or any porti~ of
the rent due in respect of the holding. The courts found the defendant
to be guilty of wilful waste prior to the institution of the suit and during
the pendency of the suit and further that the
appellant committed
default in payment of rent for seven years.
Therefore, the appellant '
was not entitled to any rights of fixity of tenure under the proviso to
clauses (i) to (vii) of section 3(1) of the 1964 Act is to be interpreted
in the light of the provisions of the Malabar Tenancy Act in the present
case.
The appellant invokes the provisions contained in section 125 ( 3)
of the Act for the purpos.e of determination in accordance with the
provisions of the Act benefits, rights or remedies conferred by the Act
and claimed by him are fixity of tenure, remedy against eviction and
remedy against payment of damages and arrears of rent. The appellant
also invokes the provisions contained in section 108(2) and (3) of the
Act for the purpose of reopening of the decree. and disposal of the
same in accordance with the provisions of the Act on the same ground
that the appellant claims benefits, rights and remedies conferred on him
by the provisions of the Act.
Counsel for the appellant relied on the Full Bench decision of the
Kerala High Court in Anantha Narayana Iyer v. Pran (I) in support
of the contention that by reason of the provisions contained in section
125 ( 3) of the Act the appeals should be disposed of in accordance
· with the provisions of the Act.
Section 125(1) of the Act created a bar against civil court to settle.
decide or deal with the questions required t~ be settled by the Land
Board in accordance with the provisions of the Act.
The provisions
contained in section 125 (1) of the Act are prospcct!ve.
Section 125
came into effect on 1 January, 1970 when the other amendments introduced by the 1969 Amendment Act came into force.
The proviso to
section 125 ( 1) of the Act expressly states that section 125 ( 1) of the
Act shall not apply to proceedings pending in any court at the commencement of the Amendment Act of 1969 on 1 January, 1970. The
effect of the proviso is to carve out by way of exception what would
otherwise have fallen within the provision to which it is a proviso. It,
therefore, follows that the proceedings in the present case which were
pending at the commencement of the Amendment Act on 1 Janumy,
(!) (1976) K.L.T. 403.
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K. EAPEN CHACKO V. PROVIDENT INVESTMENT CO. (Ray, CJ.) 1035
i 970 are ~aved from the operation of section 125 (1) of the Act. In
short, the proceedings are to be determined by. the civil court.
Section 125 (3) of the Act which provides that if in any suit or other
proceeding any question regarding the rights of a tenant arises the civil
court shall stay the suit i!nd refer such question to the Land Tribunal
having jursidiction over the area in which the land or the part thereof is
situate for the decision of that question only.
The appellant relied on
the Kerala Full Bench decision which held that section 125(3) of the
Act as amended in 1969 is retrospective, and, therefore, proceedings
shou!d be determined by the Land Tribunal.
The reason given by the
Kerala High Court is that the suit or proceeding must be pending at
the COiJlllencement of the Amendment Act 1969 before the provisions
contained in section 125(3) of the Act can be applied.
The Kerala
High Court has, therefore, concluded that suit or other proceeding
which is pending at the commencement of the Act will be governed by
section 125(3) of the Act.
This reasoning is not correct.
Section 125(3) of the Act is equally prospective.
Section 125(3)
of the Act will be applied with regard to the provisions contained in
section 125 ( 1) of the Act.
Matters which will be within the mischief
of section 125 ( 1) of the Act are matters which will arise in suits or
proceedings initiated and originated after the commencement of the Act.
It is unsound to suggest that pending proceedings which are excepted
from the application of section 125 ( 1) of the Act will yet fall within
section 125(1) of the Act by reference to section 125(3) of the Act.
The Kerala High Court fell into the error of overlooking the purpose of
section 125(3) of the Act.
The purpose is that suit or other proceed-.
ing shall be stayed. In the present case the appeal in this Court which
was pending on 1 January 1970 is a proceeding which was pending at
the commencement of the Act and was not initiated or originated at the
commencement of the Act.
Therefore, the provisions contained in
section 125 are not applicable in the present case.
A statute has to be looked into for the general scope and purview
of the statute and at the remedy sought to be applied.
In that connection the formt<,r state of the law is to be considered and also the
legislative changes contemplated by the statute.
Words not requiring
retrospective operation so as to effect an existing statutory provision
prejudicially ought nqt be ~o construed. It is a well recognised rule
that statute shoul~ be interpreted if possible so as to respect ·vested
rights. Where the effect would be to alter a transaction already entered
into, where it would be to make that valid which was previously invalid, to make an instrument which had no effect at all
and from
"'.hie? the par~y was. at liberty_ to depart as long as 'he pleased,
Y:nndmg, the przma fac1e construct10n of the Act is that it is not to be
retrospective. See Gardner v. Lucas.(')
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In Moon v. Durden( 2 ) a question arose as to whether section 18
of the Gaming Act 1845 which came into effect in August 1845 was
..l.:
retrospective so as to defeat an action which had been commenced in
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(1)
0878) 3 A.C. 582.
(2) (1848) 2 Exch. 22.
16-l338SCI/76
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
June, 1845. The relevant section provided that no suit shaU be brought
or maintained for recovering any such sum of money alleged to have
been won upon a wager. It was held that it was not retrospective.
Parke B said "It seems a strong thing to hold that the legislature could
have meant that a party who under a contract made prior to the Act
had. as perfect a title to recover a sum of money as he had to any of his
personal property, should be totally deprived of it without compensa· .
tion".
Again in Smithies v. National Union of Operative Plasterers(') section 4 of the Trade Disputes Act, 1906 which enacte.d that an 91ition
for tort against a trade union shall not be entertained by any court was
held not to prevent the courts from hearing and giving judgment in
actions of that kind begun before the passing of tne Act.
A is a
general rule that the legislature alters the rights of parties by taking
away or conferring any right of action, its enactments, unless in express
terms they apply to pending actions, do not affect them. But there is an
exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of section. See Re Joseph Sucha &
Co. Ltd. (2). If the legislature forms a new procedure alteration in the
form of procedure are retrospective unless there is some good reason
or other why they should not be.
In other words, if a statute deals
merely with the procedure in an action, and does not affect the ri.e;htS
of the parties it will be held to apply prima facie to all actions, pending
as well as future.
In the present case the provisions in section 50-A, 52 and 73 of
the 1964 Act as amended in 1969 were invoked by the appellant.
The
appellant is disentitled from doing so by reason of Chapter II of the
1964 Act not being applicable to the lease where th1: lessor is a Government Company.
Further these sections came into effect on 1
January 1970.
The sections are not retrospective but prospective in
operation. The appellant is not entitled to attract these ~ections.
For the foregoing reasons the appeal is dismissed with costs.
V.P.S.
•
Appeal dismissed.
•
(1) [1909) 1 K.B. 310.
(2) (1875) 1 C'h. 48.
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