Kerala High Court Chembakave Vadakkekkara Lakshmi ... vs Nellisseri Gramam Narayanaswami ... on 21 February, 1963 Equivalent citations: AIR 1963 Ker 330 Among the four statutes mentioned in Schedule III, item 3 was the Malabar Tenancy Act, 1929, and all the statutes mentioned in Schedule III were repealed as in force in any part of the State of Kerala. When Section 95 of Kerala Act 4 of 1961 came into force from 15-2-1961, the Malabar Tenancy Act of 1929, stood repealed as and from that date. Sub-section 2 (a) of Section 95 related to the repeal of certain other Proclamations and Acts referred to therein and provided that all suits, appeals, revisions, reviews and proceedings in execution, of decrees stayed by the said enactments are to be disposed of in accordance with the provisions of Act 4 of 1961. Sub-section (4) of Section 95 again provided that any suit for restoration, filed under Section 24 or Section 26 of the Malabar Tenancy Act, 1929 and pending disposal at the commencement of the Kerala Act 4 of 1961, are to be disposed of in accordance with the provisions of the Malabar Tenancy Act as if that Act had not been repealed. Orders passed by the Kent Court declining to proceed with the applications filed for fixation of fair rent, again orders passed by the appellate authorities declining to continue the appeals, as also the orders passed by the appellate authorities overruling the objections raised regarding their jurisdiction to hear appeals after the repeal of the Malabar Tenancy Act, were again the subject of several writ petitions. No doubt, in all these matters the original contention that is taken is that the parties therein have got a vested right either to have the fair rent fixed under the Malabar Tenancy Act on the basis of applications filed by them before its repeal or that the parties have got a vested right of appeal for challenging the orders of the Rent Courts and those rights have not been taken away by the Kerala Act 4 of 1961. Such vested rights, according to the petitioners, have not been taken away by Kerala Act 4 of 1961. But after the striking down as unconstitutional of Kerala Act 4 of 1961 with respect to the ryotwari lands in the Malabar area, various parties have again taken up a further contention that as Kerala Act 4 of 1961 is void under Article 13 (2) of the Constitution, in view of the decision of this Court referred to above, there has been no repeal at all of the Malabar Tenancy Act, which continues to be in full force and operation. The learned Judge also later on indicates that the view of the High Court that the expression void in Article 13 (1) is used in the sense of repeal cannot be accepted. On the other hand, the learned Judges view js that the effect of Article 13 (1) is quite different from the effect of the expiry of a temporary statute or the repeal of a statute by a subsequent statute. Ultimately, the learned Judge agreed, though for different reasons, with the conclusion arrived at by the High Court that inasmuch as Article 13 (1) is not retrospective, proceedings commenced under the 1931 Act can be continued. Mr. Justice Mahajan, in a separate, but concurrent judgment, discusses again the effect of a statute being held to be void under Article 13 (1). At page 136 the learned Judge observes: The expression void has no larger effect on the Statute so declared than the word repeal. The expression repeal according to common law rule obliterates a Statute completely as if it had never passed and thus operates retrospectively on past transactions in the absence of a saving clause or in the absence of provisions such as are contained in the Interpretation Act, 1889, or in the General Clauses Act, 1897; while a provision in a Statute that with effect from a particular date an existing law would be void to the extent of the repugnancy has no such retrospective operation and cannot affect pending prosecutions or actions taken under such laws.
Posted on: Mon, 18 Aug 2014 09:31:34 +0000
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