Pathumma v. Abdurahiman — 1961 DIGILAW 105 (KER)

Judgment :- 1. This Letters Patent Appeal arose out of a suit to recover possession of a house & paramba (land) from the tenant under a Kanom-kuzhikanom lease evidenced by Ext. D1 dated 17-8-1931. The plaintiff claimed the premises to be exempt from the operation of the Malabar Tenancy Act by virtue of S.2 (3) thereof. The learned Munsiff found the transaction to be a single kanom-kuzhikanom lease within the purview of the Malabar Tenancy Act, granted the defendant's prayer for a renewal of the kanom in a connected proceeding, and dismissed this suit for eviction. The learned District Judge upheld the same. But when the matter was before the Madras High Court in Second Appeal, Krishnaswamy Naidu, J., took the view that a portion of the garden, about 35 cents in extent out of the total of 2 acres under demise, could be regarded as appurtenant to the building in the leased premises and therefore outside the provisions of the Malabar Tenancy Act, and granted a decree for eviction in respect of that portion, affirming the decree of the courts below with regard to the rest of the property. Hence this L.P. Appeal by the second defendant with leave of the learned judge. 2. The Malabar Tenancy Act having been repealed by the Kerala Agrarian Relations Act, IV of 1961 which as mentioned in its S.92, is enacted to override all other laws in pari materia, the claim of the plaintiff for eviction of his tenant has hereafter to be determined only in accordance with the latter Act. The provision that corresponds with S.2 (3) of the Malabar Tenancy Act is in S.3 (ii) of Kerala Agrarian Relations Act; but they are not identical in scope. The former reads: (1) (2) ............... "Nothing in this Act shall apply to - (3) any building owned by a landlord including a house, shop or warehouse, and the site thereof, together with the garden or land appurtenant thereto" And the latter Act provides: "3. Nothing in this Chapter shall apply to - (i).................. (ii) leases of buildings including a house, shop or warehouse, and the site thereof, with the land if any, appurtenant thereto." 3. Nothing in this Chapter shall apply to - (i).................. (ii) leases of buildings including a house, shop or warehouse, and the site thereof, with the land if any, appurtenant thereto." 3. Thus, while the exemption from the old Act was in respect of any building of the landlord and the land appurtenant thereto, the exemption from the present Act is in respect of leases of buildings and the land appurtenant to it. The nature of the transaction between the landlord and the tenant was immaterial under the old Act, but it is the primary factor to be considered under the new Act. In other words, whatever be the nature of the demise or of the demised property, every building owned by the landlord, its site and the land appurtenant to it were all exempt from the provisions for fixity of tenure to or non-evictability of the tenant under the Malabar Tenancy Act. 4. That Krishnaswamy Naidu, J., also understood S.2(3) of the Malabar Tenancy Act in this way is clear from His Lordship's observations: "It cannot be held, as urged on behalf of the appellant, that the property covering the entire lease is excepted from the provisions of the Malabar Tenancy Act. But, at the same time, it must be noted that the Act would not apply to any building owned by the landlord and the land and gardens appurtenant thereto. It is not as if the Act will not apply to any lease covered by the building belonging to the landlord, but only to a building owned by the landlord and the garden and the site appurtenant thereto. Whatever the right of the first defendant as kuzhikanomdar may be, certainly it cannot affect the building and the land appurtenant thereto which has been found to be of the extent of 271/2 by 151/2 out of a total of 41 by 53 six feet koles. To this extent, namely, the house and the land and gardens appurtenant thereto of the extent of 271/2 by 151/2 six feet koles as found by the commissioner, there will be a decree in favour of the plaintiff." 5. Admittedly the defendant-tenants have not been so far evicted from the land or any portion thereof. If eviction of a tenant is to be had hereafter, the claim has to be made out under Kerala Agrarian Relations Act. Admittedly the defendant-tenants have not been so far evicted from the land or any portion thereof. If eviction of a tenant is to be had hereafter, the claim has to be made out under Kerala Agrarian Relations Act. When we apply that Act to the instant case, the plaintiff's claim to avoid fixity of tenure in the defendants would depend, not upon the presence of a building, but upon the nature of the lease in Ext. D1. Therefore the question to be considered now is: Whether or not the suit transaction is a lease of buildings and the site thereof, with the land appurtenant thereto. As this is a new question which arose under the new Act of 1961 the suit is remitted to the trial court for a fresh disposal, in the light of our observations above. The court will consider whether the entire garden in the leased premises is to be taken as appurtenant to the house therein or not, unbiassed by any observation made in the case hitherto. Costs in this L. P. Appeal will be costs in the cause. The cross objections do not arise for consideration in view of the repeal of the Malabar Tenancy Act and the remittal ordered above. It is dismissed without costs. Hon'ble Judge P. T. Raman Nayar, J. State of Kerala V. Mary C. Nidhiri. HEAD NOTES CRIMINAL P. C., 1898 - S.417,S.439 - I might observe at the outset that, if the trial itself was without jurisdiction, there could be no acquittal properly speaking, and that the order of the Sessions Court really amounts only to a discharge of the accused from the case, the use of the word, "acquittal" by the learned judge being a mistake. But, since the learned judge has purported to acquit the accused, though in fact there could be no acquittal, I should think the provisions of S.417 of the Criminal Procedure Code are attracted. Even if they are not, I can still act under S.439, and if I think it proper, restore the judgment of the District Magistrate notwithstanding the restriction in sub-section (4) of S.439. The position seems to be this: If there is an acquittal, S.417 would apply and my power to record a conviction would be unquestionable. Even if they are not, I can still act under S.439, and if I think it proper, restore the judgment of the District Magistrate notwithstanding the restriction in sub-section (4) of S.439. The position seems to be this: If there is an acquittal, S.417 would apply and my power to record a conviction would be unquestionable. But if there is not, I would not, in restoring the judgment of the District Magistrate, be converting a finding of Acquittal into one of conviction. Para(s) : 2 INDUSTRIAL DISPUTES ACT, 1947 - S.34(1), S.39 - The section, in fact, confers two powers on the appropriate Government, the first to make a complaint and the second to authorise the making of in complaint or, in the words of counsel for the defence, to delegate, in any particular case, its power to make a complaint. S.39 of the Act authorises the appropriate Government to delegate any power exercisable by it under the Act and the delegation made by the State Government in favour of the Labour Commissioner under Ext. P. 5 is both the powers under S.34[1] in so far as offences under S.29 are concerned namely, the power to make a complaint and the power to authorise somebody else to make a complaint. The delegation is a perfectly good delegation in terms of the section, and since the section itself authorises the delegation of the power to authorise someone else to make a complaint, no question of a delegate being disentitled to make a further delegation arises. The decision of the American Supreme Court reported in Cundahy Packing Co. v Holland [86 Lawyers' Edition page 895] relied upon on behalf of the accused has no bearing whatsoever on the question, for, there it was held, on a construction of the relevant provisions of the statute concerned, that there was no power of delegation conferred on the authority who made the delegation. Here, on the contrary, S.39 in express terms authorises the appropriate Government to delegate any of the powers given to it by the Act or the rules made thereunder, and the powers which the State Government have delegated by Ext. P. 5 are the powers conferred upon it by S.34 [1], as we have seen, of both the power to make a complaint and of the power to authorise somebody else to do so. P. 5 are the powers conferred upon it by S.34 [1], as we have seen, of both the power to make a complaint and of the power to authorise somebody else to do so. The matter to which the delegation relates has been expressly specified in Ext. P. 5 and, since the delegation is not made subject to any conditions, no question of specifying conditions arises, so that the argument that Ext. P. 5 is bad because it does not specify the conditions subject to which the powers may be exercised by the delegate is without force. That argument loses sight of the words, "if any" appearing in the section after the word, "conditions." Para(s) : 7 CRIMINAL TRIAL - There still remains the question whether the authorisation under Ext. P.1 is proper and valid. At one time it might have been possible to distinguish, as a Division Bench of the Calcutta High Court did in Ramadas v. K.M. Sen (AIR. 1955 Calcutta 517), between provisions like S.196 of the Criminal Procedure Code, S.34 (1) of the Industrial Disputes Act and S.20 (1) of the Prevention of Food Adulteration Act on the one hand, and S.197 of the Criminal Procedure Code, Clause.23 of the Cotton Cloth and Yarn (Control) Order, 1943 and S.6 (1) of the Prevention of Corruption Act on the other, and say that the former set of provisions did not involve any sanction by the authority empowered to complain after applying its mind to the facts of the case. It could have been said that what those provisions required was that the prosecution should either be by the authority mentioned or by some person specified by that authority, the emphasis being not so much upon whether, on the given facts, a prosecution should be launched, as upon who should have the conduct of the prosecution. But, after what has been said by the Supreme Court in Feroz Din v. State of West Bengal (AIR. 1960 Supreme Court 363, Para.22) with reference to the very section we are now considering and in State of Bombay v. Kanaiyalal (1960) II KLR. But, after what has been said by the Supreme Court in Feroz Din v. State of West Bengal (AIR. 1960 Supreme Court 363, Para.22) with reference to the very section we are now considering and in State of Bombay v. Kanaiyalal (1960) II KLR. 621, Para.13) with reference to S.20 (1) of the Prevention of Food Adulteration Act, it is no longer possible to make any such distinction, and it would appear that the authorisation or written consent required by the former set of provisions must comply with the requirements of a valid sanction under the latter set of provisions as laid down by the Privy Council in Gokulchand Dwarkadas v. The King [AIR. 1948 Privy Council 82]. It seems that the object of the two sets of provisions is the same, namely, the prevention of frivolous or harassing prosecutions or of prosecutions which on grounds of policy should not be instituted, and that what they say is, despite the difference in the wording, much the same. Where a competent authority itself makes a complaint it has necessarily to set out in the complaint the facts of the case and state what offence has been committed so that the very act of presenting a complaint is some guarantee that the authority has, after applying its mind to the facts of the case, decided that a prosecution should be launched. But where the complaint is made, not by the competent authority, but by somebody authorised by it, then the mere specification of the person to be prosecuted, and of the offence for which he is to be prosecuted, is by itself no guarantee that the competent authority has applied its mind to the facts of the case before deciding that a prosecution should be launched. Therefore where, as in this case, the competent authority, instead of itself making a complaint, authorises some other person to make a complaint on its behalf, it would seem necessary to show, either by the order of authorisation itself, or by evidence aliunde, that the competent authority has, after applying its mind to the facts of the case, decided upon a prosecution. Para(s) : 9 Reported in 1961 KLT 717: 1961 KLJ 645 Case No Crl. Para(s) : 9 Reported in 1961 KLT 717: 1961 KLJ 645 Case No Crl. A. No. 141 of 1960 Decided on 09/01/1961 Advocates Appeared: Public Prosecutor; For State George Vadakkel; M. A. Joseph; For Respondent Referred to *AIR 1960 SC 363;1960 II KLR 621; AIR 1948 PC 82; AIR 1958 SC 124; JUDGMENT 1. The accused in this case was convicted by the District Magistrate, Ernakulam of an offence punishable under S.29 of the Industrial Disputes Act, 1947 and was sentenced to pay a fine of Rs. 500/-, in default to suffer simple imprisonment for two months. On appeal, she was acquitted by the Sessions Court on the ground that there was no proper complaint in accordance with S.34 (1) of the Act and that, since the absence of such a complaint was a bar to cognizance, the entire proceedings against the accused were without jurisdiction and therefore void. The Public Prosecutor has presented this appeal against that acquittal under S.417 of the Criminal Procedure Code. 2. I might observe at the outset that, if the trial itself was without jurisdiction, there could be no acquittal properly speaking, and that the order of the Sessions Court really amounts only to a discharge of the accused from the case, the use of the word, "acquittal" by the learned judge being a mistake. But, since the learned judge has purported to acquit the accused, though in fact there could be no acquittal, I should think the provisions of S.417 of the Criminal Procedure Code are attracted. Even if they are not, I can still act under S.439, and if I think it proper, restore the judgment of the District Magistrate notwithstanding the restriction in sub-section (4) of S.439. The position seems to be this: If there is an acquittal, S.417 would apply and my power to record a conviction would be unquestionable. But if there is not, I would not, in restoring the judgment of the District Magistrate, be converting a finding of Acquittal into one of conviction. 3. It was not disputed before the appellate court, nor is it here, that the accused did, in fact, commit the offence alleged. All that is said is that, since there was no compliance with the requirements of S.34 of the Industrial Disputes Act, the court had no jurisdiction to try the accused for the offence. 4. 3. It was not disputed before the appellate court, nor is it here, that the accused did, in fact, commit the offence alleged. All that is said is that, since there was no compliance with the requirements of S.34 of the Industrial Disputes Act, the court had no jurisdiction to try the accused for the offence. 4. S.34 (1) runs as follows: "34 (1) No Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government." S. 39 which provides for delegation of powers by the appropriate Government says: "The appropriate Government may, by notification in the Official Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable also (a) xxxxx (b) where the appropriate Government is a State Government, by such officer or authority subordinate to the State Government as may be specified in the notification" And, acting under this section, the Government (which is the appropriate Government in this case) issued a notification on 27-5-1959 (a copy of which has been marked in the case as Ext. P-5) which reads thus: "In exercise of the powers conferred by S.39 of the Industrial Disputes Act, 1947 (Central Act XIV of 1947) the Government of Kerala hereby direct that the power exercisable by them under S.34 of the said Act shall be exercisable also by the Labour Commissioner in respect of offences punishable under S.29 of the said Act." Acting under this power conferred on him, the Labour Commissioner, by his proceedings Ext. P.1 dated 4-10-1958 authorised the District Labour Officer, Alwaye, to file a complaint against the accused in this case for this particular offence and the authorisation was in these terms: "Whereas it has been brought to the notice of the Department that the management of the Nidhiri Estate, Mookkannoor have not yet implemented the award of the Labour Court, Ernakulam in I.D. No. 28 of 1957 and whereas it has been held that the same is an offence punishable under S.29 of the Industrial Disputes Act, Now therefore under S.34 (1) of the Industrial Disputes Act, 1947 (Central Act XIV of 1947) and in exercise of the powers conferred by Government Notification No. 22096/L2/58-4 dated 27-5-1958, the Labour Commissioner hereby authorises the District Labour Officer, Alwaye to file a complaint against Mrs. Mary C. Nidhiri Chacko, Chungom, Alleppey before the appropriate court for an offence under S.29 of the Industrial Disputes Act." In pursuance of this authority, the District Labour Officer, Alwaye presented a complaint against the accused before the District Magistrate, Ernakulam, and it was on this complaint that the District Magistrate tried and convicted her. 5. The learned Sessions Judge took the view that S.34 of the Industrial Disputes Act was only "a mandate to the court" and conferred no power on the Government. In that view, whatever was conferred on the Government under the section was not something that could be delegated by it under S.39 which applies only to the delegation of power. Therefore the purported delegation under Ext. P. 5 was without effect; and so, the complaint made by the Labour Officer Alwaye, not being a complaint made by or under the authority of the appropriate Government, was not the complaint required by S.34(1). And, although that question did not arise, since the complaint in this case was made not by the Labour Commissioner, the person named in Ext. P. 5, but by the District Labour Officer, Alwaye, the learned judge also expressed the view, following the decision in Gokulchand Dwarkadas v. The King (AIR. 1948 Privy Council 82) and other decisions to the same effect, that Ext. P. 5 could not be regarded as (what it obviously did not profess to be) a proper sanction to prosecute the accused for this particular offence. 6. I am unable to accept the view that S.34 (1) confers no power on the appropriate Government. 1948 Privy Council 82) and other decisions to the same effect, that Ext. P. 5 could not be regarded as (what it obviously did not profess to be) a proper sanction to prosecute the accused for this particular offence. 6. I am unable to accept the view that S.34 (1) confers no power on the appropriate Government. It prohibits the court from taking cognizance of any offence punishable under the Act unless complaint is made to it by or under the authority of the appropriate Government. The making of the complaint or the giving of authority to make the complaint is therefore something which it enables the appropriate Government to do; and this, there can be no doubt, is a power. The word "power" is used in S.39 in its ordinary sense of "ability to do anything" or, "capacity for producing an effect" and even if it be that it is used in its technical legal sense, a reference to the standard Law Lexicons such as Burrows, Stroud, Black and Tomilins shows that the technical legal sense is not very different. "Power" is defined by Burrows as an "individual personal capacity of the donee of the power to do something". Salmond in his book on jurisprudence [11th Edition, Page 274] defines "power" thus: "A power may be defined as ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons." And at page 273 he enumerates among that class of legal rights which are termed powers, the power to sue and to prosecute. I find little difficulty in holding that the right conferred on the appropriate Government by S.34 [1] of the Industrial Disputes Act, using the word, "right" in its wide generic sense, is a power. It enables the appropriate Government to do something and that ability can rightly be termed a power. 7. The section, in fact, confers two powers on the appropriate Government, the first to make a complaint and the second to authorise the making of in complaint or, in the words of counsel for the defence, to delegate, in any particular case, its power to make a complaint. 7. The section, in fact, confers two powers on the appropriate Government, the first to make a complaint and the second to authorise the making of in complaint or, in the words of counsel for the defence, to delegate, in any particular case, its power to make a complaint. S.39 of the Act authorises the appropriate Government to delegate any power exercisable by it under the Act and the delegation made by the State Government in favour of the Labour Commissioner under Ext. P. 5 is both the powers under S.34[1] in so far as offences under S.29 are concerned namely, the power to make a complaint and the power to authorise somebody else to make a complaint. The delegation is a perfectly good delegation in terms of the section, and since the section itself authorises the delegation of the power to authorise someone else to make a complaint, no question of a delegate being disentitled to make a further delegation arises. The decision of the American Supreme Court reported in Cundahy Packing Co. v Holland [86 Lawyers' Edition page 895] relied upon on behalf of the accused has no bearing whatsoever on the question, for, there it was held, on a construction of the relevant provisions of the statute concerned, that there was no power of delegation conferred on the authority who made the delegation. Here, on the contrary, S.39 in express terms authorises the appropriate Government to delegate any of the powers given to it by the Act or the rules made thereunder, and the powers which the State Government have delegated by Ext. P. 5 are the powers conferred upon it by S.34 [1], as we have seen, of both the power to make a complaint and of the power to authorise somebody else to do so. The matter to which the delegation relates has been expressly specified in Ext. P. 5 and, since the delegation is not made subject to any conditions, no question of specifying conditions arises, so that the argument that Ext. P. 5 is bad because it does not specify the conditions subject to which the powers may be exercised by the delegate is without force. That argument loses sight of the words, "if any" appearing in the section after the word, "conditions." 8. P. 5 is bad because it does not specify the conditions subject to which the powers may be exercised by the delegate is without force. That argument loses sight of the words, "if any" appearing in the section after the word, "conditions." 8. I might mention that the vires of S.39 is not assailed; nor can I see on what ground it could possibly be assailed so far as the delegation of the powers under S.34 [1] is concerned. 9. There still remains the question whether the authorisation under Ext. P.1 is proper and valid. At one time it might have been possible to distinguish, as a Division Bench of the Calcutta High Court did in Ramadas v. K.M. Sen (AIR. 1955 Calcutta 517), between provisions like S.196 of the Criminal Procedure Code, S.34 (1) of the Industrial Disputes Act and S.20 (1) of the Prevention of Food Adulteration Act on the one hand, and S.197 of the Criminal Procedure Code, Clause.23 of the Cotton Cloth and Yarn (Control) Order, 1943 and S.6 (1) of the Prevention of Corruption Act on the other, and say that the former set of provisions did not involve any sanction by the authority empowered to complain after applying its mind to the facts of the case. It could have been said that what those provisions required was that the prosecution should either be by the authority mentioned or by some person specified by that authority, the emphasis being not so much upon whether, on the given facts, a prosecution should be launched, as upon who should have the conduct of the prosecution. But, after what has been said by the Supreme Court in Feroz Din v. State of West Bengal (AIR. 1960 Supreme Court 363, Para.22) with reference to the very section we are now considering and in State of Bombay v. Kanaiyalal (1960) II KLR. 621, Para.13) with reference to S.20 (1) of the Prevention of Food Adulteration Act, it is no longer possible to make any such distinction, and it would appear that the authorisation or written consent required by the former set of provisions must comply with the requirements of a valid sanction under the latter set of provisions as laid down by the Privy Council in Gokulchand Dwarkadas v. The King [AIR. 1948 Privy Council 82]. 1948 Privy Council 82]. It seems that the object of the two sets of provisions is the same, namely, the prevention of frivolous or harassing prosecutions or of prosecutions which on grounds of policy should not be instituted, and that what they say is, despite the difference in the wording, much the same. Where a competent authority itself makes a complaint it has necessarily to set out in the complaint the facts of the case and state what offence has been committed so that the very act of presenting a complaint is some guarantee that the authority has, after applying its mind to the facts of the case, decided that a prosecution should be launched. But where the complaint is made, not by the competent authority, but by somebody authorised by it, then the mere specification of the person to be prosecuted, and of the offence for which he is to be prosecuted, is by itself no guarantee that the competent authority has applied its mind to the facts of the case before deciding that a prosecution should be launched. Therefore where, as in this case, the competent authority, instead of itself making a complaint, authorises some other person to make a complaint on its behalf, it would seem necessary to show, either by the order of authorisation itself, or by evidence aliunde, that the competent authority has, after applying its mind to the facts of the case, decided upon a prosecution. 10. In this case, however, there is little difficulty on that score. For Ext. P.1 contains all the facts of the case and also embodies the decision of the competent authority, namely the Labour Commissioner, that the accused should be prosecuted for the offence. The gist of an offence under S.29 of the Industrial Disputes Act is a breach of any term of any settlement or award which is binding on the offender under the provisions of the Act. Ext. P.1 sets out full particulars of the award which was binding on the accused who was undisputably in management of the estate, and also states that the management, in other words, the accused, had failed to implement that award. Then it goes on to say that, therefore, the Labour Commissioner authorises the District Labour Officer to lay a complaint against the accused for an offence under S.29 of the Industrial Disputes Act. I should think Ext. Then it goes on to say that, therefore, the Labour Commissioner authorises the District Labour Officer to lay a complaint against the accused for an offence under S.29 of the Industrial Disputes Act. I should think Ext. P1 passes the test for a valid sanction laid down by the Privy Council in Gokulchand Dwarkadas v. The King (AIR. 1948 Privy Council 82), and affirmed by the Supreme Court in Jaswant Singh v. State of Punjab [AIR. 1958 Supreme Court 124] and Feroz Din v. State of West Bengal [AIR. 1960 Supreme Court 363]. 11. The accused was rightly convicted by the District Magistrate under S.29 of the Industrial Disputes Act and the sentence awarded to her cannot be said to be excessive. I allow this appeal against the order of the Sessions Court acquitting the accused, and restore the conviction and sentence imposed by the District Magistrate. 12. The accused is given a fortnight's time to pay the fine. Allowed.