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1966 DIGILAW 199 (KER)

Yahu v. The Government Of Kerala

1966-08-01

S.VELU PILLAI, T.S.KRISHNAMOORTHY IYER

body1966
JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. These appeals have been filed by the plaintiffs in three different suits against the decrees of the courts below dismissing them. The three suits were disposed of by the courts below by common judgments as the questions for consideration in all the three suits are common. The plaintiffs in all the suits are sub-lessees of B class Railway poramboke very near the Tirur Railway Station. At the request of the railway authorities the State Government started proceedings against the plaintiffs under the Madras Land Encroachment Act. They were served with notices on 18th January 1955 and in November 1956 of under section 7 of the said Act. The suits were filed against the State praying for a perpetual injunction to restrain the State from taking action against the plaintiffs for summary eviction under section 6 of the Madras Land Encroachment Act and from demolishing the buildings in the plaint items. Though several grounds were raised in the courts below which were all repelled the only ground pressed before us was that the State Government has no right under the Madras Land Encroachment Act to pass an order of eviction without paying the value for improvements to be paid to the plaintiffs under the Malabar Compensation for Tenants Improvements Act 1899 (Madras Act I of 1900). The leases in respect of the properties included in all the three suits granted by the Madras State are Exts. B-14 and B-17, dated 12th December 1949 in favour of Narayanan Nambudiri and Ext. B-13, dated 25th May 1932 in favour of Govindankutty Nair. Section 6 clause (1) of the Madras Land Encroachment Act (III of 1905) is to the following effect. Any person unauthorisedly occupying any land for which he is liable to pay assessment under section 3 may be summarily evicted by the Collector, and any crop or other product raised on the land shall be liable to forfeiture and any building or other construction erected or anything deposited thereon shall also, if not removed by him after such written notice as the Collector may deem reasonable, be liable to forfeiture. Forfeitures under this section shall be adjudged by the Collector and any property so forfeited shall be disposed of as the Collector may direct. Section 6 clause (2) of the said Act provides for the manner of eviction contemplated in section 6 (1) of the Act. Forfeitures under this section shall be adjudged by the Collector and any property so forfeited shall be disposed of as the Collector may direct. Section 6 clause (2) of the said Act provides for the manner of eviction contemplated in section 6 (1) of the Act. The terms in Exts. B-13, B-14 and B-17 are identical. Clause (9) in the contract of lease provides that the grantee shall not erect any building other than those now existing, fence or structure or effect any other improvement of a permanent or temporary character on the land without the previous written sanction of the granting authority. It is agreed for the plaintiffs that no of such permission was taken. Clause (12) in the leases is to the following effect: "The grantee shall remove immediately any unauthorised building, fence or structure or any other improvements on receipt of the notice from the assigning authority and in default of immediate compliance with any such notice the assigning authority shall have the power to remove the same and the grantee shall upon demand made on behalf of the assigning authority pay the costs of removal and the costs of storing the materials removed and take delivery of the same. The grantee shall have no claim to any materials removed under this condition which shall not have been taken delivery of or the costs of removal and storage of which shall not have been paid by the grantor on demand as aforesaid." It was contended on behalf of the appellants that clause (9) and clause (12) in the lease deeds offend section 19 of the Malabar Compensation for Tenants Improvements Act. Section 19 of the said Act provides thus: "Nothing in any contract made after the first day of January, 1886, shall take away or limit the right of a tenant to make improvements and to claim compensation for them in accordance with the provisions of this Act." The contention of the learned advocate for the appellants was that in view of section 19 of the Malabar Compensation for Tenants Improvements Act, the provisions in Ext. B-13, B-14 and B-17 cannot prevail and the plaintiffs have got a right to have the value of improvements paid to them before they are summarily evicted under section 6(1) of the Madras Land Encroachment Act. B-13, B-14 and B-17 cannot prevail and the plaintiffs have got a right to have the value of improvements paid to them before they are summarily evicted under section 6(1) of the Madras Land Encroachment Act. The Malabar Compensation for Tenants Improvements Act, 1899 has been repealed by the Kerala Compensation for Tenants Improvements Act, 1953, (Act 29 of 1958). The second proviso to section 4 of Act 29 of 1958 which confers the right of a tenant to get compensation for improvements made by him on eviction is not made applicable to tenants holding lands under the Government. In view of this it was contended by the learned advocate for the appellants that the plaintiffs have acquired a vested right on the basis of the Malabar Compensation for Tenants Improvements Act which cannot be affected by Government of the Kerala Act 29 of 1958 and therefore the right of the plaintiffs to get compensation has to be decided in accordance with the provisions of the Madras Act. We shall first consider the question whether the plaintiffs are entitled to claim any right for the improvements effected by them in violation of the conditions contained in Exts. B-13, B-14 and B-17 in view of the provisions of the Madras Act. Section 3 of the Government Grants Act (XV of 1895) is to the following effect: "All provisions, restrictions, conditions and limitations ever contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor any rule of law, statute or enactment of the Legislature to the contrary notwithstanding" The courts below took the view that in view of section 3 of the Government Grants Act the provisions in Exts. B-13, B-14 and B-17 will have to prevail in spite of section 19 of the Madras Act. An identical question came up for consideration before the Madras High Court in Hallingal Moosa Kutty v. The Secretary of State for India, (1919) 37 M.L.J. 332 . and Ullattuthedi Choyi v. The Secretary of State for India, (1921) 41 M.L.J. 494 . B-13, B-14 and B-17 will have to prevail in spite of section 19 of the Madras Act. An identical question came up for consideration before the Madras High Court in Hallingal Moosa Kutty v. The Secretary of State for India, (1919) 37 M.L.J. 332 . and Ullattuthedi Choyi v. The Secretary of State for India, (1921) 41 M.L.J. 494 . In Hallingal Moosa Kutty v. The Secretary of State for India, (1919) 37 M.L.J. 332 , the question which arose was whether a condition prohibiting the erection of the building in the land belonging to the Government by the lessee is saved from the operation of section 19 of the Malabar Compensation for Tenants Improvements Act on account of section 3 of the Government Grants Act. Their Lordships said: "It is clear to us that these contracts are not within the mischief of S. 19 of the Malabar Compensation for Tenants Improvements Act." On a similar question Their Lordships observed in Ullattuthedi Choyi v. The Secretary of State for India, (1921) 41 M.L.J. 494 thus: "Under section 3 of the Crown Grants Act of 1895 the grant is to take effect according to its tenor any rule of law, statute or enactment of the legislature to the contrary notwithstanding. In our opinion it is not possible to have clearer words than these. The grant in question contains a reservation of the right to terminate the tenancy on six months notice, and there is an express covenant by the lessee to surrender. It is now said that he cannot be evicted until he has received compensation under the provisions of the Malabar Compensation for Tenants Improvements Act. To allow such a provision of that Act to take effect would prevent the Crown grant in question from taking effect according to its tenor." We are therefore of the view that in view of section 3 of the Government Grants Act the terms of Exts. B-13, B-14 and B-17 are not controlled by section 19 of the Madras Act. Section 6 of the Kerala Act 29 of 1958 provides that a decree passed in a suit for ejectment instituted against a tenant should be conditional on payment of compensation ascertained under the Act. B-13, B-14 and B-17 are not controlled by section 19 of the Madras Act. Section 6 of the Kerala Act 29 of 1958 provides that a decree passed in a suit for ejectment instituted against a tenant should be conditional on payment of compensation ascertained under the Act. There is nothing in the Madras Act which bars the Government under section 6 (1) of the Madras Land Encroachment Act to pass an order of eviction without payment of compensation. It was not contended before us that the Government acted without authority in issuing the notice of eviction under clause (2) of section 6 of the Madras Land Encroachment Act. We are therefore of the view that the dismissal of the suits by the courts below is right and no ground has been made out for interference by this Court. In the result, the second appeals are without merit and they are dismissed with costs.