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1969 DIGILAW 131 (KER)

KARIPPA BHAGAVATHI DEVASWOM v. DEVASSSY

1969-07-09

P.SUBRAMONIAN POTI

body1969
Judgment :- 1. The questions that arise in both the second appeals are the same. The appeals arise out of reference under S.33 (2) read with S.30 of the Kerala Land Acquisition Act made to the Additional Subordinate Judge's Court of Trichur. The matters relate to apportionment of compensation between the jenmi of the property on the one hand and the kanamdar and verumpattom tenants on the other. The jenmi Karippa Bhagavathy Devaswom represented by its Managing Ooralan is the appellant before me in both the appeals. It is agreed that S.48 of the Kanam Tenancy Act XXIV of 1955 applies in the matter of apportionment of the compensation money awarded in the land acquisition proceedings. This section provides for such apportionment where the jenmi and the kanam tenant cannot agree to the apportionment as between them. S.48 as it stood prior to its amendment by Act IV of 1961 read as follows: 48. Apportionment of compensation-money on land acquisition. -- When the jenmi and the kanam-tenant cannot agree as to the apportionment as between them of the compensation-money awarded or awardable on the acquisition of any land or portion of land comprised in any holding, under any law providing for the compulsory acquisition of land for public purpose, the portion due to each shall be determined in accordance with the following rules: (a) so much of the compensation-money, as is due to any buildings shall belong entirely to the kanam¬tenant; (b) the balance left after deducting the portion of compensation-money referred to in rule (a) shall belong to the jenmi and the kanam-tenant in the proportion of the jenmikaram charged or chargeable on the land or portion of land and the average annual net produce of the land or portion of land, as the case may be: Provided that if the capitalised value of the jenmikaram is smaller than such share of the jenmi the capitalised value a lone shall belong to the jenmi and all the rent shall belong to the kanam-tenant. Explanation I. The capitalised value of any jenmikaram means an amount equal to sixteen and two-third times the amount of the jenmikaram. Explanation 2. Explanation I. The capitalised value of any jenmikaram means an amount equal to sixteen and two-third times the amount of the jenmikaram. Explanation 2. 'Net produce' means the surplus remaining after deducting from the gross produce of any land a portion equivalent in value to the cost of cultivation and the Government tax and cesses, if any, and the jenmikaram chargeable on such land and includes the value of such surplus. Explanation 3. 'Average annual net produce" means the net produce ascertained as derivable on an average for one year, by calculation of the net produce for each year during a period of ten years immediately preceding the date of such ascertainment. Explanation 4. When a portion alone of land is acquired the portion of jenmikaram chargeable on that land shall be ascertained as if the land had been divided and the jenmikaram of the portion of land acquired shall cease to be payable to the jenmi or to the Government." The dispute between the parties is as to what is the capitalised value due to the jenmi. Explanation I which fixes such capitalised value at sixteen and two-third times the amount of the jenmikaram was amended so as to substitute eight and one-third times in place of sixteen and two-third times. This was by Kerala Agrarian Relations Act 1960 (Act 4 of 1961). S.85 (3) thereof read as follows: "In the Explanation.) to S.48 of the Kanom Tenancy Act, 1955, for the words, 'sixteen and two-third times' the words 'eight and one-third times' shall be substituted." Therefore, after Act 4 of 1961 came into force and consequently the above amendment was effected in S.48 of the Kanom Tenancy Act, 1955 the capitalised value of the jenmikaram to which the jenmi could lay claim would be eight and one-third times. It is agreed to between the parties that in this case when the notice calling for claims under the Land Acquisition Act was issued to the parties and when the claims were so filed the above amendment had come into force and that the relevant date would be the date after Act 4 of 1961 came into force and remained in operation. Act 4 of 1961 was repealed by the Kerala Land Reforms Act 1963. Act 4 of 1961 was repealed by the Kerala Land Reforms Act 1963. The main question is controversy in the appeals is the scope of this repealing clause and in particular S.132(4) (i) and (iii) of the Kerala Land Reforms Act 1 of 1964. The Kerala Agrarian Relations Act 1960 having been repealed by sub-section 4 (i) of S.132 of the Kerala Land Reforms Act, it is the case of the jenmi that The amendment to Explanation.) to S.48 effected by S.85 of Act 1 of 1964 also stood repealed; and it is the further case of appellant jenmi that by reason of sub-section 4 (iii) of S.132, Act 1 of 1964 shall not be deemed to have conferred any right on any person "as if the said Act had not been enacted." It is therefore the case of the jenmi that capitalised value has to be determined on the basis that it is sixteen and two-third times of the jenmikaram, it is this question which I am called upon to adjudicate in this second appeal. 2. The reference court found against the kanom tenant and in favour of the jenmi by holding that the capitalised value would be sixteen and two-third times. This was reversed by the Additional District Judge's Court of Trichur which held that it would be-only eight and one-third times. The jenmi has come up in appeal before me in these second appeals. Some doubt arose initially as to the maintainability of this appeal in view of the Full Bench decision of this Court reported in P. D. Palakattumala Devaswom v. Ulahannan Pylee (1969 KLT. 275). It is now agreed that the appeal would lie since the 1st respondent in the appeals had resorted to the District Court and had obtained decisions in his favour. Under such circumstances an appeal would lie has been held by this Court in the decision reported in Devasia Philipose v. Venkitta Subba Iyer Harihar a Iyer (1952 KLT. 289). 3. S.85 (3) of Act 4 of 1961 is a provision intended only to amend the Kanom Tenancy Act of 1955. On the repeal of Act 4 of 1961 what would happen to the amendment as effected in the Kanom Tenancy Act of 1955 is a matter no longer open to any doubt. 289). 3. S.85 (3) of Act 4 of 1961 is a provision intended only to amend the Kanom Tenancy Act of 1955. On the repeal of Act 4 of 1961 what would happen to the amendment as effected in the Kanom Tenancy Act of 1955 is a matter no longer open to any doubt. Normally when an amending Act is repealed it does not result in the repeal of the amendment already effected in the Act which is amended by the amending Act. When a subsequent enactment amends an earlier enactment the earlier Act which is so amended has thereafter to be read as if the altered words have been written into the earlier Act "with pen and ink and the old words scored out so that there is no need to refer to the amending Act at all". It is not as if there is any further purpose served by the amending Act, and therefore if the amending Act or any provision in the subsequent Act which serves the purpose of an amending Act is repealed, normally it does not result in the repeal of the amendment effected. This is subject to the rule that if there is an intention to the contrary either expressed or implied in the enactment which so repeals,then the amendment would also stand repealed. This principle is contained in S.5 of the General Clauses Act 1125 as amended by Kerala Act 3 of 1957. S.5 runs as follows: "5. Where any Act repeals any enactment by which the text of any Act was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." This section corresponds in terms to S.6A of the General Clauses Act 1897 (Central). The application of S.6A has arisen for consideration in several cases. The decision of the High Court of Bombay reported in Damodar Ganesh v. State (AIR. 1951 Bombay 459) concerned the question whether sub-section (3) of S.1 of the Criminal Law Amendment Act 1932 limiting the duration of the Criminal Law Amendment Act repealed by the Criminal Law Amendment Act, 1935 would revive by virtue of the subsequent repeal of the Criminal Law Amendment Act, 1935. 1951 Bombay 459) concerned the question whether sub-section (3) of S.1 of the Criminal Law Amendment Act 1932 limiting the duration of the Criminal Law Amendment Act repealed by the Criminal Law Amendment Act, 1935 would revive by virtue of the subsequent repeal of the Criminal Law Amendment Act, 1935. It was held that by virtue of S.6A of the General Clauses Act, 1897 the repeal of the 1935 Act later by Act 20 of 1937 does not affect the continuance of any amendment made by the amendment Act of 1935 and in operation at the time of the repeal of that Act. A similar question arose in the case before the Supreme Court in the decision in Jethanand Betab v. The State of Delhi (AIR. 1960 SC. 89). The Supreme Court held that the case of the repeal of an amending Act falls within the four corners of S.6A of the General Clauses Act, 1897. That was a case where by the Amending Act of 1949 the text of the Wireless Telegraphy Act 1933 was amended by the insertion of S.6 (1-A) therein and the question was whether the repeal of the Amending Act by the Repeal and Amending Act, XLVIII of 1952 did affect the continuances of the amendment made by the enactment so repealed. Applying S.6A of the General Clauses Act 1897 it was held that it did not affect the amendment already effected and it was further held that in the circumstances of that case there was no scope for inferring an intention to the contrary. 4. In the light of S.5 of the General Clauses Act 1125 it is not difficult to find that inspite of the repeal of Act 4 of 1961 by S.132 (4) of Act 1 of 1964 the amendment made to Kanom Tenancy Act 1955 would not be affected if the repealing Act did not indicate any intention to the contrary expressed or implied. My attention has been invited to S.114 (3) of the Kerala Land Reforms Act 1 of 1964. My attention has been invited to S.114 (3) of the Kerala Land Reforms Act 1 of 1964. S.114 (3) runs as follows: "(3) In Explanation I to S.48 of the Kanom Tenancy Act, 1955 for the words "sixteen and two-third limes" the words "eight and one-third times" shall be substituted." If the repeal by S.132 (4) (i) of Act 1 of 1964 did not affect the amendment to the Explanation I to S.48 of the Kanom Tenancy Act 1955 then the capitalised value would have been computed at eight and one-third times the annual Jenmikaram. But S.114 of Act 1 of 1964 would indicate that by reason of the repeal the Kanam Tenancy Act 1955 would be read as sixteen and two-third times. There would have been no necessity to substitute the words 'eight and one-third times' in place of 'sixteen and two-third times' by S.114 (3) if even without such substitution Explanation.) to S.48 read as 'eight and one-third times. In that event S.114 (3) would be redundant. Therefore it would be proper to read S.114 (3) to avoid such redundance, and that would be possible if that subsection is read as indicating an intention to the contrary within the meaning of S.5 of the General Clauses Act, 1125. If so read, it is clear that in the enactment in question, namely Act 1 of 1964, the intention to the contrary is indicated. If so, the amendment effected to Explanation.) of S.48 of the Kanam Tenancy Act of 1955 will not survive after the repeal by Act 1 of 1964. But this is immaterial for all practical purposes, because Explanation.) to S.48 of the Kanam Tenancy Act of 1955 would read, even after the repeal, as before, in view of S.114 (3) of Act 1 of 1964. Hence the appellant before me would not be in any better position because he succeeds in his contention that after the repeal by Act 1 of 1964 of Act 4 of 1961 the amendment to Explanation.) of S 48 of the Kanom Tenancy Act 1955 effected by S.85 of Act 4 of 1961 does not survive. 5. In this situation the counsel for the appellant turned to sub-section (4) (Hi) of S.132 of the Kerala Land Reforms Act 1 of 1964. Sub-section 4 i) provides for the repeal of Kerala Agrarian Relations Act. Sub-section 4(ii) enumerates matters which survive the repeal. 5. In this situation the counsel for the appellant turned to sub-section (4) (Hi) of S.132 of the Kerala Land Reforms Act 1 of 1964. Sub-section 4 i) provides for the repeal of Kerala Agrarian Relations Act. Sub-section 4(ii) enumerates matters which survive the repeal. Sub-section 4(iii) of S.132 provides as follows: "Subject to the provisions of clause (ii), the said Act or the rules, notifications or orders made or issued thereunder, shall not be deemed to have conferred any right Or imposed any liability on any person, as if the said Act had not been enacted." It is the contention of the learned counsel for the appellant that Kerala Act IV of 1961 shall not be deemed to have conferred any right or imposed any liability on any person as if the said Act had not been enacted and therefore the kanamdar will not get any right under Act IV 1961 nor would he be under any liability by reason of the said Act If so, according to him, the amendment to Explanation.) in S.48 effected by S.85(3) of Act IV of 1951 must be deemed to have been never operative, not even during the period when Act IV of 1961 was in force, which is the relevant period so far as the present appeals are concerned. This according to learned counsel, is the effect of S.132(4) (iii) of the Kerala Land Reforms Act. Consequently, during the relevant period, Explanation.) to S.48 of the Kanam Tenancy Act 1955 will have to be applied as it stood before its amendment by Act IV of 1961. If so the capitalised value would be sixteen and two-third times. The counsel would have been well founded in his contention had the right in question been one which arose under Act 4 of 1961 or the liability was one which was imposed under the said Act. In this connection I shall refer briefly to the scope of an Amending Act. As I have already adverted to earlier in this judgment, the scope of any Amending Act or any provision in an enactment, the only purpose of which is to amend an earlier Act, is only to write into the earlier Act the altered words. Once it has performed its function in so altering the earlier Act, it remains in the statute book, no doubt, but it does not have any further function to perform. Once it has performed its function in so altering the earlier Act, it remains in the statute book, no doubt, but it does not have any further function to perform. The rights of the parties arising by reason of the alteration made by the Amending Act have to be traced to the earlier Act which is amended and not to the Amending Act itself. In this connection I may refer to the decision of the Supreme Court in Shamrao v. Parulekar v. District Magistrate, Thana, Bombay (A. LIZ. 1952 S.C. 324). In Para.7 of that decision this question is adverted to. "The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. This is the rule in England: see Craies on Statute Law, 5th Edition, page 207; it is the law in America See Crawford on Statutory Construction, page 110; and it is the law which the Privy Council applied to Inda in KESHORAM PODDAR v. NUNDO LAL, MALLICK, 54 Ind App. 152 (PC) at P. 155. Bearing this in mind, it will be seen that the Act of 1950 remains the Act of 1950 all the way through even with its subsequent amendments. Therefore, the moment the Act of 1952 was passed and S.2 came into operation,the Act of 1950 meant the Act of 1950 as amended by S.2, that is to say, the Act of 1950 now due to expire on the 1st of October 1952". It is hence clear that though Kanam Tenancy Act 1955 has been amended by S.85 (3) of Act 4 of 1961, it is the Kanam Tenancy Act which gives rise to the rights of the parties even under any provision so amended. It is hence clear that though Kanam Tenancy Act 1955 has been amended by S.85 (3) of Act 4 of 1961, it is the Kanam Tenancy Act which gives rise to the rights of the parties even under any provision so amended. Any reference in S.132 (4) (iii) of Act 1 of 1964 to rights conferred or liability imposed under that Act cannot take in any rights or liabilities arising by reason of provisions of law in other statutes as amended by the provisions in Act 4 of 1961. Therefore, S.132(4) (iii) has no application to the present case. If so, it follows that the capitalised value of the Jenmikaram during the relevant period would amount to eight and one-third times the amount of the Jenmikaram. In this view of the matter both the appeals fail. 6. Though a contention was raised during the course of the hearing about the market rate for the paddy to determine the value of the Jenmikaram the counsel for the appellant did not press that contention before me in view of the Division Bench ruling of this Court reported in Raghavan v. Abhas (196o KLT. 671) (FB.). 7. In the result, I dismiss both the second appeals. But, in the circumstances of the case there will be no order as to costs. Dismissed.