Gopalakrishnan Nair v. Padmavathy Amma — 1970 DIGILAW 184 (KER)

Judgment :- 1. The question arising for decision in the civil revision petition turns on the interpretation of S.125 of Act I of 1964 amended by the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969). The said provision reads: "125. Bar of jurisdiction of civil courts: (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the Appellate authority or the Land Board or the Government or an officer of the Government: Provided that nothing contained in this sub-section shall apply to proceeding in any court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969. (2) No order of the Land Tribunal or the appellate authority or the Land Board or the Government or an officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act. (3) If in any suit or other proceeding any question regarding rights of a tenant or a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceedings and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only. (4) The Land Tribunal shall decide the question referred to it under sub-section [3] and return the records together with its decision to the civil court. (5) The civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. (6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court. (5) The civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. (6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court. (7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in sub-section [3] restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal, and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms [Amendment] Act, 1969, or before such question has arisen, shall stand cancelled." The above Section was inserted by S.102 of the Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) in substitution for the original S.125, which reads: "125. Bar of jurisdiction of courts: No order of the Land Tribunal or the Land Board under this Act shall be called in question in any court, except as provided in this Act." Act 35 of 1969 came into force on 1-1-1970 in pursuance to the notification dated 1-1-1970 issued by the Government under S.1 (2) of the Act. 2. The short question raised before us is whether suits instituted in civil courts prior to the commencement of the Kerala Land Reforms (Amendment) Act, 1969 (Act 35 of 1969) will be controlled by the new provision. S.9, CPC. postulates the jurisdiction of the ordinary civil courts to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred; and S.4, CPC. lays down that in the absence of any specific provision to the contrary, nothing in the Code shall affect the special form of procedure prescribed by or under any other law for the time being in force. To satisfy the requirement of S.9, CPC. it is not necessary that there should be an express bar. It is enough if the statute purports to exclude the ordinary jurisdiction of the civil courts, though not expressly, by the use of words as would necessarily lead to the intendment of such exclusion. To satisfy the requirement of S.9, CPC. it is not necessary that there should be an express bar. It is enough if the statute purports to exclude the ordinary jurisdiction of the civil courts, though not expressly, by the use of words as would necessarily lead to the intendment of such exclusion. The saving clauses in S.4 and 9. CPC. will preclude the contention that S.125 of the Land Reforms Act, which bars the jurisdiction of civil courts in certain cases, is repugnant to the provisions of the Code. In Secretary of State v. Mask & Co. AIR. 1940 PC. 105, Lord Thankerton said: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." The classical passage regarding the scope of the rule of ouster of jurisdiction of the civil courts is in the judgment of Willes, J., in Wolverhamption New Waterworks Co. v. Hawkesford (1859) 6 C. B. (N. S.) 336 at 356. The said passage runs thus: "There are three classes of cases in which a liability may be established founded upon a statute. One is, where there was a liability existing at Common Law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at Common Law: there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy: there the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The present case falls within this latter class, if any liability at all exists. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class." To decide the question whether suits pending at the commencement of Act 35 of 1969 will be hit by S, 125 (3), it will be necessary to examine whether the said provision is retrospective in operation. Counsel for the plaintiff contended that it is not, as it will also be controlled by the proviso to subsection (1) of S.125. Counsel for the defendant while disputing this plea submitted that the retrospective character of S.125 (3) is clear by necessary implication from the language of the provision and ambiguity if any is removed by S.125 (7) of the Land Reforms Act. 3. It is agreed that in respect of pending suits there is no complete ouster of jurisdiction of civil courts to try and dispose of them. The submission of the defendant is that the jurisdiction of civil courts is ousted only to decide the questions covered by S.125 (3) of the Land Reforms Act. If during the pendency of a suit properly instituted in a civil court, a law is passed or amended to make the suit or part of the suit exclusively triable by a Tribunal constituted under such law the court does not lose its jurisdiction to continue the suit unless there is an express provision or an intendment to that effect in the new law. It is a well-settled principle of law that jurisdiction once vested cannot be divested unless the legislature has expressly or by necessary intendment stated so. If a court has jurisdiction to decide a question on the date of the suit, the jurisdiction will continue until something has happened to take away that jurisdiction. The ordinary rule is that rights of the litigants are to be governed by the law in force when the action was commenced. If a court has jurisdiction to decide a question on the date of the suit, the jurisdiction will continue until something has happened to take away that jurisdiction. The ordinary rule is that rights of the litigants are to be governed by the law in force when the action was commenced. Maxwell in the Interpolation of Statutes (twelfth edition) observed at pages 220 and 221: "In general, when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights But if the necessary intendment of a statute is to affect the rights of parties to pending actions, the court mast give effect to the intention of the legislature and apply the law as it stands at the time of the judgment even though there is no express reference to pending actions." 4. There is always a distinction between enactments which provide new remedies and those which affect substantive rights. Lord Denning pointed out in Attorney-General v. Veernazza (1960) 3 All E. R.97 at 100: "If the effect of the new Act is to prevent him from continuing those proceedings to their ultimate conclusion, than it may be said to be a 'retrospective' Act, at any rate in the sense in which Lord Blackburn once had occasion to use the word 'retrospective'. But whether this is a proper use of the word "retrospective" or not, it is of little moment; because the principles to be applied are not in doubt. If the new Act affects the respondent's substantive rights, it will not be held to apply to proceedings which have already commenced, unless a clear intention to that effect is manifested: See Colonial Sugar Refining Co. v. Irving (1935) A. C. 369. But if the new Act affects matters of procedure only, then, prima facie, it applies to all actions, pending as well as future; for as Lord Blackburn said: 'Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be: see gardner v. Lucas: (1878) 3 App. Cas. 603." 5. But if the new Act affects matters of procedure only, then, prima facie, it applies to all actions, pending as well as future; for as Lord Blackburn said: 'Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be: see gardner v. Lucas: (1878) 3 App. Cas. 603." 5. Courts have always looked with disfavour laws which affect pending cases, probably for the reason stated by Viscount Simonds in Smith v. East Elloe Rural District Council 1956 A. C. 736 at 750 that "anyone bred in the tradition of the law is likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the court, whether in order that the subject may be deprived altogether of remedy or in order that his grievance may be remitted to some other tribunal." But the courts have always been giving effect to the intention of the legislature if stated expressly or gatherable by clear intendment to apply a new law to pending actions. The decision in Mukerjee v. Mt. Ramratan A. I. R.1936 P, C. 49 clearly lays down that the legislative intent to vary the rights even during the pendency of an action need not appear in the law in express terms. Sir George Rankin observed: "The object of this section can only be to quiet titles which are more than ten years old, and to ensure that if during these ten years the transferee has not been ejected he shall have the right to remain on the land. Within this class the legislature has not thought fit to discriminate against tenants whose right is under challenge in a suit, a course which it may well have regarded as invidious or unnecessary. As substantive rights of landlords and their accrued causes of action were to be abrogated, respect for pending suits over old transfers cannot be assumed." 6. The above observation therefore furnishes an illustration how an intention to interfere with pending actions though not expressly stated but gatherable from the provisions of the statute was accepted as sufficient. Varadachariar, J., after examining the decision of the Judicial Committee observed in United Provinces v. Atiqa Begum A. I. R.1941 F. C.16 at pp. The above observation therefore furnishes an illustration how an intention to interfere with pending actions though not expressly stated but gatherable from the provisions of the statute was accepted as sufficient. Varadachariar, J., after examining the decision of the Judicial Committee observed in United Provinces v. Atiqa Begum A. I. R.1941 F. C.16 at pp. 46-47: "There are two recognized principles, (1) that vested rights should not be presumed to be affected and (2) that the rights of the parties to an action should ordinarily be determined in accordance with the law as it stood at the date of the commencement of the action. The language used in an enactment may be sufficient to rebut the first presumption, but not the second. Where it is intended to make a new law applicable even to pending actions, it is common to find the Legislature using language expressly referring to pending actions. But it will be seen from the decision of the Privy Council in 15 Pat. 268, that it is not necessary that the intention of the Legislature should always be expressed in that particular form. In that case, the enactment validated all transactions subsequent to a specified date and their Lordships held that the new law would apply, to a transaction of that kind even if it had become the subject of an action prior to the date of the passing of the Act; and in those circumstances, they reversed the usual presumption and looked to see whether there was any reservation in the Act in respect of pending actions." The same principle was expressed by Hidayatullah, J., in Dayawati v. Inderjit AIR. 1966 SC. 1423 at 1426 thus: "Courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance." 7. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance." 7. Though the question is one of construction of statute the presumption is that the right of the parties to an action should ordinarily be determined by the law in force at its commencement. Even in the absence of an express provision in a statute to govern pending actions if on a construction of the entire enactment the legislative intent to interfere with pending actions is clear and unequivocal, courts will be obliged to apply the new law to pending actions. It is in the above background that the scope and ambit of S.125 (3) has to be considered. S.1 (2) of Act 35 of 1969 is clear to show that the legislature intended the said enactment to be only prospective and not retrospective. That provision specifically says that the Act shall come into force on such date as the Government may, by notification in the Gazette, appoint. The said appointed date is 1-1-1970. If the Act is not intended to be retrospective then the question is whether there is anything in S.125 generally or in S.125(3) in particular to make the latter retrospective and catch within its ambit suits pending in civil courts on the date of its commencement. 8. In the matter of construing S.125, it will be useful to remember the principles in Magiti Sasamal v. Pandab Bissoi AIR. 1962 SC. 547 where their Lordships of the Supreme Court had to interpret S.7 (1) of the Orissa Tenants Protection Act, 1948. S.7 (1) provided for the exclusive jurisdiction of the Collector to try five categories of disputes between the landlord and tenant included in clauses (a) to (e) of the Section. The question raised before the Supreme Court was whether a dispute as to the status of a tenant would also be comprehended by S.7 (1). S.7 (1) provided for the exclusive jurisdiction of the Collector to try five categories of disputes between the landlord and tenant included in clauses (a) to (e) of the Section. The question raised before the Supreme Court was whether a dispute as to the status of a tenant would also be comprehended by S.7 (1). Gajendragadkar, J. speaking for the court said: "There can be no doubt that ordinarily a dispute in regard to the relationship between the parties such as that between a landlord and a tenant would be a dispute of a civil nature and would fall within the competence of the civil court. If the respondents contend that the jurisdiction of the civil court to deal with such a civil dispute has been taken away by S.7(1) we must enquire whether S.7 (1) expressly takes away the said jurisdiction or whether the material words used in the section lead to such an inference or the scheme of the Act inescapably establishes such an inference." 9. S.125 (1) ousts the jurisdiction of civil court only to settle, decide or deal with any question or determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the Appellate Authority or the Land Board or the Government or an officer of the Government. The above section prima facie can only be prospective unless there is something expressed or appearing by implication therein or in any other part of the Act to the contrary. On the other hand, the proviso to subsection (1) of S.125 is a positive mandate by the legislature that sub-section (1) of S.125 is only prospective and will not affect pending actions. S. 125 (3) reads: "If in any suit or other proceeding any question regarding rights of a tenant or a kudikidappukaran (including a question as to whether a person is a tenant or kudikidappukaran) arises, the civil court shall stay the suit or other proceedings and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only." A plain reading of the above provision does not bring out any intention on the part of the legislature express or otherwise to interfere with pending suits. A decision on a dispute whether a person is a tenant or kudikidappukaran is covered by S.125 (1) as well. In view of the proviso the jurisdiction of the civil court to deal with that question in a pending matter has not been affected. In our view, S.125 (3) covers only a category of cases referred to by S.125 (1). If the plea that S.125 (3) applies to pending cases is accepted there will be a conflict between sub-sections (1) and (3) of S.125. It was submitted that this could be avoided by regarding sub-section (3) as a proviso to the proviso to sub-section (1) of S.125. It is not possible to agree to this contention for the reason that it will run counter to the intention expressed by the legislature even by some of the other provisions of the Act. 10. S.108 of Act 35 of 1969 is a transitory provision. Sub-section (3) of the said provision reads: "All suits, applications, appeals revisions, reviews, proceedings in execution of decrees and other proceedings with respect to any matter arising under and provided for by the principal Act, pending before courts, tribunals, officers or other authorities at the commencement of this section, shall be disposed of in accordance with the provisions of the principal Act as amended by this Act". We do not find anything in that Section against the continuance of the proceedings or ousting of the jurisdiction of the civil court to dispose of pending matters, the only limitation being that they will have to be disposed of in accordance with the provisions of Act I of 1964 as amended by Act 35 of 1969. Then again S.132 (1) of the principal Act which remains unamended enables the court to dispose of pending matters in accordance with the provisions of the principal Act as amended by Act 35 of 1969. On an anxious consideration of the relevant provisions, we are of the view, that proceedings and suits pending in civil courts on the date of the Amendment Act 35 of 1969 are not controlled by S.125 (3) of the Kerala Land Reforms Act I of 1964 amended by Act 35 of 1969. 11. We shall now consider the plea based on S.125 (7) of the Land Reforms Act. 11. We shall now consider the plea based on S.125 (7) of the Land Reforms Act. The said provision reads: "No civil court shall have power to grant injunction in any suit or other proceeding referred to in sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that sub-section has arisen, till such question is decided by the Land Tribunal, and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled." The submission was that the latter portion of the above clause refers to suits pending on the date of the Amendment Act 35 of 1969 and if S.125 (3) is interpreted to control only subsequently instituted suits, there will be a conflict between sub-sections (3) and (7) of S.125. The opening words "no civil court shall have power" in sub-section (7) of 5.125 will make it clear that the legislature intended only to affect prospectively the jurisdiction of courts in the matter of the issue of order allowing injunction or appointing receiver in matters referred to therein. It was therefore argued that so long as the jurisdiction of the court to pass an order of injunction or appointing a receiver prior to the date of the Act was not affected, the latter clause in sub-section (7) of S.125 is an assumption of judicial power by the legislature and is therefore ultra vires of the Constitution. Even by the former clause of sub-section (7) there is no complete ouster of jurisdiction of the civil court to grant injunction or to appoint receiver but for the exercise of the power it has only to await the receipt of the finding of the Land Tribunal on the question whether the person is a tenant or a kudikidappukaran. If therefore the first clause of sub-section (7) is only prospective, there is no law taking away the jurisdiction of the court when the order of injunction or appointment of receiver was made. In Basanta Chandra v. Emperor AIR. 1944 FC. 86 at pp. If therefore the first clause of sub-section (7) is only prospective, there is no law taking away the jurisdiction of the court when the order of injunction or appointment of receiver was made. In Basanta Chandra v. Emperor AIR. 1944 FC. 86 at pp. 90-91 Spens, C. J., pointed out: "The distinction between a 'legislative' act and a 'judicial' act is well known, though in particular instances it might not be easy to say whether an act should be held to fall in one category or in the other. The Legislature is only authorised to enact laws. Some of the pending proceedings hit at by cl. (2) of S.10 may raise questions of fact and their determination may wholly depend upon questions of fact and not upon any rule of law, as for instance, when it is alleged that an order of detention was not really the act of the authority by whom it purports to have been made or that it was a mala fide order or one made by a person who had not been authorised to make it. A direction that such a proceeding is discharged is clearly a judicial act and not the enactment of law. This question was discussed at some length in the judgment of this Court in 1944 FCR. 61. The nature of the provision then considered was essentially different from cl. (2) of S.10 of the present Ordinance. As explained in that judgment, the position there was that certain cases had in fact been tried by Tribunals constituted under an earlier Ordinance and decisions had been pronounced by those Tribunals, but the jurisdiction of those Tribunals was negatived by a decision of this Court. The later Ordinance provided that those decisions should be treated as decisions of duly constituted Tribunals. Applying the test laid down in (1926) 38 Com. L.R. 153 this Court held that that did not constitute an exercise of judicial power by the ordinance-making authority. But here there has been no investigation or decision by any Tribunal which the legislating authority can be deemed to have given effect to. It is a direct disposal of cases by the Legislature itself." In Shri P.C. Mills v. Broach Municipality AIR. 1970 SC. But here there has been no investigation or decision by any Tribunal which the legislating authority can be deemed to have given effect to. It is a direct disposal of cases by the Legislature itself." In Shri P.C. Mills v. Broach Municipality AIR. 1970 SC. 192 Hidayatullah, C.J. said: "Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A Court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances." We are therefore of the view, that the latter clause in sub-section (7) of S.125 is invalid and it cannot therefore affect the interpretation which we have placed on S.125 (3) of the Land Reforms Act. 12. There was no contention before us that the entire sub-section (7) of S.125 is bad. We are therefore not expressing any opinion on the validity of the earlier clause in sub-section (7) of S.125. We however notice that a Full Bench of this Court in 1970 KLT. 659 has taken the view that the entire sub-section (7) of S.125 is an assumption of judicial power which cannot therefore be sustained. 13. We, therefore, hold that suits and proceedings pending in civil courts on the date of Amendment Act 35 of 1969 are not hit by S.125 (3) of the Kerala Land Reforms Act, 1964 amended by Act 35 of 1969. We dismiss the revision petition without any order as to costs. Dismissed.