Judgment :- 1. A "small holder" applied to the Land Tribunal, Trichur in the year 1964, for resuming half of the holding from his tenant, under S.17 of Kerala Act 1 of 1964. The Tribunal allowed it in August, 1965. The identity of the portion to be resumed was fixed in accordance with the tenant's option, and the solatium to be paid, at Rs, 592/83. Under S.20 of the Act, as it then stood, the solatium payable was an amount equal to one year's rent; and the Tribunal had committed a mistake in taking into account the rent for the whole of the holding, instead of one half thereof. The small holder ("landlord") and the tenant appealed to the Appellate Authority. The tenant's appeal was dismissed, while in the landlord's appeal, the solatium was reduced by 50%. The appeals were disposed of in August, 1966. The tenant did not take up the matter in revision The landlord, who had deposited the whole amount much earlier, then withdrew half of it, and filed an application (E.P. No. 242/67) before the Munsiff's Court for executing the resumption order. Under S.22 (7) of the Act, as it stood at that time, an order for resumption had to be executed through the civil court, "as if the order were a decree passed by it". The order of the Land Tribunal had thus become final, the solatium had been deposited, and all that remained to be done was to put the landlord in possession of the portion specified. 2. Further proceedings were however held up by reason of Ordinance 4 of 1967, subsequently replaced by Act 9 of 1967, till the latter was repealed by Act 35/69. Thereafter, the landlord filed E.P. No. 159/70 before the Munsiff's Court for obtaining delivery. The tenant objected on the ground that the order for resumption passed in 1965 was wrong, as he was a tenant entitled for fixity before 21st January, 1961. The learned Munsiff accepted this contention and dismissed the E.P; but on appeal by the landlord, in A.S. No. 28/71, the District Court, Trichur observed: "There can be no doubt that the order passed by the lower court is wrong. Once the Land Tribunal has passed an order for resumption, its validity can be challenged only in the manner prescribed by the provisions of Act 1/64. Once the Land Tribunal has passed an order for resumption, its validity can be challenged only in the manner prescribed by the provisions of Act 1/64. The lower court, as an executing court, cannot go behind the order and come to a different conclusion on the facts and refuse to execute the order if it is otherwise bound to execute the order". However, the District Court did not allow the appeal for the reason that after 1170, the forum for executing a resumption order was the Land Tribunal, and not the civil court. The landlord then moved T. A. 6/73 before the Munsiff Land Tribunal. The tenant reiterated that he was entitled to fixity prior to 21 161. He also filed another application as MP. 131/74 for reopening the earlier order and for re-fixation of solatium under the provisions of S.20, as amended by Act 35/69. The Tribunal held: "(i) S.108(3) of Act 35/69 did not empower it to reopen a resumption order which bad become final; (ii) the tenant was a varamdar with no fixity of tenure before 21161; (Hi) if reopening was permissible, the solatium payable under the amended provision would be Rs. 1680/-". In the view taken that there was no scope for reopening the earlier order, the tenant was directed to put the landlord "in possession of the application schedule property" without any further deposit. Against this order, the tenant filed an appeal before the Appellate Authority (L R.) as A. A. No 1707/75. By judgment dated 12-11-76. the Appellate Authority allowed the appeal in part, holding that solatium was payable at the higher rate prescribed by S.20 after its amendment by Act 35/69 This higher amount was fixed as Rs. 3360/-. 4. C. R. P. No. 5521/76 is filed by the landlord against the aforesaid order in the A A, on the ground that the refixation of solatium is illegal and beyond jurisdiction; and CRY No. 5690/76 is by the tenant, complaining that the Appellate Authority should have accepted his case regarding fixity. 5. The tenant's revision can easily be disposed of. He was admittedly a varamdar, and did not have fixity prior to 21 11961. There were certain Ordinances and enactments staying proceedings for eviction of varamdars prior to the aforesaid date; but those had not conferred fixity. 5. The tenant's revision can easily be disposed of. He was admittedly a varamdar, and did not have fixity prior to 21 11961. There were certain Ordinances and enactments staying proceedings for eviction of varamdars prior to the aforesaid date; but those had not conferred fixity. Even before its amendment by Act 35/69, S.17 of Act 1/64 contained the provision that no resumption could be made from those with fixity before 2111961. This was therefore a matter the tenant could have agitated before the Land Tribunal in 1964, before the resumption order was passed in 1965. Assuming that he could have reserved this plea to a later stage, and also assuming that Act 35/69 enabled him to raise it after 1170, there is nothing to show even now that he could successfully resist resumption. C.R.P. No. 5690/ 76 has therefore to be dismissed. 6. For holding that solatium could be refixed at the enhanced rate prescribed by the 1969 amendment, the Appellate Authority adopted the following reasoning. The resumption order had not become final before 1170; it became final only with the judgment in A. S No. 28/71. Under S.20, solatium was payable to a tenant from whom land "is resumed", and the point of time was therefore the time of delivery and not the passing of an order of resumption. Since delivery had not been effected before 1170, the resumption had not become final. There was therefore nothing to be reopened, and all that was required was to give effect to S.108 (3) in the pending proceedings. I am referring to the reasoning somewhat in detail only to show that even according to the Appellate Authority, no reopening of a final order passed before 1170 was possible, in proceedings for execution, under S.108 (3) of Act 35/69. 7. In my view, the point in issue before the Appellate Authority was not whether the resumption had become final and complete in the sense that delivery had also been effected before 1170; for, had this been so, the question would have been one of restoring possession, and not one of reopening a final order. The question was whether the order of resumption had become final, and if so, whether it could have been reopened in the I. A. proceedings, on the strength of S.108 (3). The question was whether the order of resumption had become final, and if so, whether it could have been reopened in the I. A. proceedings, on the strength of S.108 (3). The resumption order passed by the Land Tribunal in August, 1965 had really become final when the appeals against it were disposed of in August, 1966 and the tenant had decided not to question the appellate order by proceedings in revision. The judgment of the District Court in A. S No. 28/71 had nothing to do with the finality of the 1965 order of the Land Tribunal; if at all, the learned District Judge had only observed that the executing court had no power to meddle with it Nor does the inference drawn from the use of the words "is resumed" in S.20 appeal to me. The Section does not deal with the point of time with reference to which "resumption" is to be treated as complete or final; it does not also fix the time of delivery. The latter is the subject matter of S.18 (2), under which the order of resumption is to be given effect to at the end of the agricultural year. S.20 only confers a right on the tenant for solatium; and read with S 22, it is absolutely clear that fixation of its quantum and deposit of the same should precede actual delivery. The Appellate Authority has therefore erred in holding that there was nothing final and nothing to be reopened in the I A proceedings. 8. Realising this difficulty, counsel for the tenant (in this Court) contended that S, 108 (3) of Act 35/69 permits reopening of final orders of resumption, even in proceedings analogous to execution proceedings. S.108 of Act 35/69 (after its amendment by Act 25/71, and omitting sub-sections 4 and 5) read as follows: "108. 8. Realising this difficulty, counsel for the tenant (in this Court) contended that S, 108 (3) of Act 35/69 permits reopening of final orders of resumption, even in proceedings analogous to execution proceedings. S.108 of Act 35/69 (after its amendment by Act 25/71, and omitting sub-sections 4 and 5) read as follows: "108. Transitory Provisions: (1) Where, before the commencement of this section, fair rent has been determined under the principal Act in respect of any holding, the Land Tribunal may, of its own motion or on application by the cultivating tenant, by order, revise the fair rent in accordance with the provisions of the principal Act as amended by this Act, and such order shall take effect from the beginning of the agricultural year in which that order is passed: Provided that no order prejudicial to any person shall be passed under this sub-section without giving him an opportunity of being heard. (2) Any decree passed before the commencement of this section for the dispossession of a person from the land in his possession, pursuant to which dispossession has not been effected, may, on the application of such person, to the court which passed the decree be reopened and the matter may be disposed of in accordance with the provisions of the principal Act as amended by this Act. (3) If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by this Act." It was argued that the principal Act as amended by Act 35/69 conferred on the tenant the benefit or right to a higher rate of solatium. The tenant had claimed this right in the proceedings which were pending on 1170. The proceedings therefore had to be disposed of by taking note of such benefit or right, even if the process involved reopening of an order which had become final. The tenant had claimed this right in the proceedings which were pending on 1170. The proceedings therefore had to be disposed of by taking note of such benefit or right, even if the process involved reopening of an order which had become final. The legislature had intended that benefits, rights and claims conferred by the Amending Act should be made available to parties in all pending proceedings; and this impliedly imposed an obligation on the authority concerned to do all that was necessary to give effect to it. Learned counsel for the landlord stoutly opposed this construction. He cited authorities to show that there is a presumption against retrospectivity, and that no statute shall be construed to have retrospective effect unless such a construction is justified by the clear terms of the Act, or by necessary implication. Even if the language of the statute is fairly capable of either interpretation, it ought to be construed as prospective only; and no construction is permissible to give a greater retrospective operation than the language renders necessary. I am rot referring to the decisions cited because these propositions are not in dispute. But the question still remains as to what is the intention behind S.108 (3), express or implied, to be given effect to in a case like this; and on this aspect, no direct authority was cited. 9. The first step, in my view, would be to precisely understand what was pending, because S.108(3) operates on pending proceedings. If this is identified the next would be to ascertain whether the jurisdiction of the authority before which it was pending has been altered by the amendment. This leads to an examination of the relevant provisions as they originally were, and the changes brought about by Act 35/69. Ss 17, 20 and 22 of Act I of 1964 as they stood before the amendment could first be seen. They are extracted below: "17. Resumption by small holder. Without prejudice to the right of resumption under S.16, a small bolder (other than a sthani or the trustee or owner of a place of public religious worship) may resume from bis tenant a portion of the holding not-exceeding one-half. They are extracted below: "17. Resumption by small holder. Without prejudice to the right of resumption under S.16, a small bolder (other than a sthani or the trustee or owner of a place of public religious worship) may resume from bis tenant a portion of the holding not-exceeding one-half. Provided that, by such resumption, the total extent of land in the possession of the small holder shall not be raised above four standard acres or four acres in extent, whichever is greater: Provided further that, except as provided in sub-sections (2) and (3) of S.53, no land shall be resumed under this section from a tenant who was entitled to fixity of tenure in respect of his holding immediately before the 21st January, 1961, under any law then in force." "20. Tenants from whom land is resumed to be paid compensation for improvements, and solatium. (1) A tenant from whom land is resumed under the provisions of this Act shall be entitled to (i) compensation for the improvements belonging to him; and (ii) a solatium of an amount equal to one years' rent. (2) The compensation payable under clause (i) of sub-section (1) shall be determined in accordance with the provisions of the Kerala Compensation for Tenants Improvements Act, 1958". x "22. Procedure for resumption. (1) A landlord desiring to resume any land shall apply to the Land Tribunal within whose jurisdiction the land is situate for an order of resumption The application shall be in such form and shall contain such particulars as may be prescribed (2) The Land Tribunal shall duly enquire into the application and pass appropriate orders thereon. Where the order allows resumption, it shall specify the extent and location of the land allowed to be resumed, the rent payable in respect of the portion, if any, that would be left after resumption and such other particulars as may be prescribed and directing the landlord to make, within such time and in such manner is may be prescribed, payments to extinguish the rights of the cultivating tenant and the intermediaries, if any, who would be affected by such resumption. [3] The Land Tribunal may, for sufficient reasons, extend the time prescribed under sub-section [2] for making payments by the landlord. [3] The Land Tribunal may, for sufficient reasons, extend the time prescribed under sub-section [2] for making payments by the landlord. [4] In deciding the location of the portion of the holding allowed to be resumed the Land Tribunal shall have regard to the nature, fertility and other conditions of the portion of the land which may be allowed to be resumed and the portion left with the cultivating tenant. [5] Where the application is for resumption under S.16 from a tenant who is in possession of land exceeding the ceiling area and there are other landlords under whom the tenant holds, the Land Tribunal shall give notice of the application to all other landlords so far as known to it, specifying a date within which they may apply for resumption of any land from such tenant. The Land Tribunal shall consider all applications from landlords for resumption from such tenant received within the specified time together, and, where the extent of land in the possession of the tenant in excess of the ceiling area is less than the aggregate of the extent of land applied to be resumed by the landlords, the Land Tribunal shall allow resumption by all the landlords equitably having regard to all circumstances. (6) Where any land is resumed after making the payments as directed by the Land Tribunal, all the rights of the cultivating tenant and the intermediaries, if any, holding bet-ween the landlord resuming the land and the cultivating tenant in respect of the land, shall stand extinguished. (7) An order for resumption may be executed through the court as if the order were decree passed by it. (8) Where a landlord fails to deposit the amounts in accordance with the directions of the Land Tribunal, the order of resumption shall be treated as cancelled and the landlord shall have no further right for resumption." Turning to the amendments effected by Act 35/69, what is first noticeable is a modification to S.17 regarding the extent of land which could be resumed; but this is not material for the present case. S 20, after the amendment reads: "20. S 20, after the amendment reads: "20. Tenants from whom land is resumed to be paid compensation for improvements and solatium [1] A tenant from whom land is resumed under the provisions of this Act shall be entitled to [i] compensation for the improvements belonging to him; or [ii] a solatium of an amount equal to the value of the gross produce from the land resumed for a period of two years, whichever is greater: Provided that where the land resumed is comprised in a plantation, the tenant shall be entitled to the aggregate of the compensation referred to in clause [i] and the solatium referred to in clause [ii]. (2) The compensation payable under clause [i] of sub-section (1) shall be determined in accordance With the provisions of the Kerala Compensation for Tenants Improvements Act, 1958." So far as S.22 is concerned, amendments are made only in sub-sections (4) and (7); and the amended sub-sections read: "22. Procedure for resumption. (4) The cultivating tenant shall be entitled to opt for the location of the portion of the holding which may be allowed to be resumed, and where the tenant has not so opted, the location of the portion to be resumed shall be decided by the Land Tribunal having regard to the nature, fertility and other conditions of the portion of the land which may be allowed to be resumed and the portion left with the cultivating tenant. ...... (7) Where a landlord deposits the amounts in accordance with the directions of the Land Tribunal, the Land Tribunal shall put the landlord is possession of the land allowed to be resumed, if need be by removing any person who refuses to vacate the same." Under the principal Act, a small holder was entitled to resume a portion of the holding from bit tenant under certain conditions, and this position remains unaffected by the amendment (except as regards extent, already referred to). The tenant was entitled to solatium, but its quantum has been enhanced. Originally, the portion to be resumed was to be identified by the Land Tribunal; but after the amendment, an option is given to the tenant. But this again is not material, because in this case, the tenant had been given such an option. The tenant was entitled to solatium, but its quantum has been enhanced. Originally, the portion to be resumed was to be identified by the Land Tribunal; but after the amendment, an option is given to the tenant. But this again is not material, because in this case, the tenant had been given such an option. Both under the principal Act and after its amendment, the landlord has to apply to the Land Tribunal and obtain an order allowing resumption. The order is to be passed after an enquiry, and it is to specify the location of the portion to be resumed, the rent and other prescribed particulars, and it should also contain directions for payments. Thus there is no change in the machinery and the procedure. The only perceptible change is effected by the amendment to sub-section (7) of S.22. Under the principal Act the resumption order was to be executed through a civil court as if it was a decree passed by it; while, after the amendment, the forum for "execution" (if that term can be used) is the Land Tribunal 10. Subsection (7) of S 22 is important because what was pending in this case, on 1170, was an application under that sub-section as it originally stood. All the earlier stages had been covered. Therefore, all that the Land Tribunal bad to do in I. A. 6/ 73 was to put the landlord in possession by removing obstructions, if any, since the deposits had been admittedly made long before. In exercising this limited jurisdiction under sub-section (7), can the Land Tribunal reopen the earlier order passed under S.22 (2)? In terms, S.108 (3) does not refer to such an enlargement of jurisdiction. Prior to Act 35/69, delivery had to be obtained through the civil court as if a decree was there; and after Act 35/69, there was only a change in the forum or machinery relevant for the purpose. There is nothing in S.108 (3) of Act 35/69 to indicate that the nature of jurisdiction in proceedings under S.22(7) has been widened, or substantially modified so as to include a power to enquire again into the quantum of solatium fixed before 1170. If the legislature had intended to confer any such power in order to give more benefits to the tenant, that intention has not obviously been carried out in the language. If the legislature had intended to confer any such power in order to give more benefits to the tenant, that intention has not obviously been carried out in the language. The sub-section no doubt casts an obligation on courts and other authorities to recognise and give effect to new benefits or rights traceable to the amending Act; but this they can do only within the limits of their jurisdiction, depending upon the nature of the proceedings pending. If a suit was pending on 1-1-70, the court trying it can pass a decree after that date, by taking note of such fresh (or additional) benefits or rights. If a decree had been passed and the matter was pending in appeal or revision, the appellate or revisional courts could also do likewise, because it will be within their jurisdiction to do so. But if a decree or order bad become final before 11 70 (in the sense that appeals, second appeals and revisions had all been over) and proceedings in execution alone were pending, the executing court cannot embark upon a trial of the matters all over again, or reopen the decree passed, merely on the strength of S.108(3). Sub-section (2) of S.108 empowers courts to reopen decrees for dispossession, where dispossession had not actually been effected before 11 70. Sub-section (1) empowers Land Tribunals, either suo mote or on application, to revise fixations of fair rent made before that date. Sub-sections (3) and (4) of S.73 furnish another illustration of the conferment of power to reopen concluded matters. The sub-sections read: "(3) Where any decree or order has been passed in favour of a landlord before the commencement of the Kerala Land Reforms (Amendment) Act, 1969. Sub-sections (3) and (4) of S.73 furnish another illustration of the conferment of power to reopen concluded matters. The sub-sections read: "(3) Where any decree or order has been passed in favour of a landlord before the commencement of the Kerala Land Reforms (Amendment) Act, 1969. by any Court or Land Tribunal for the recovery of arrears of rent accrued due prior to the 1st day of May, 1968, such decree or order shall be enforceable only to the extent of the amount due to such landlord under sub-section (1); and to determine such amount, any of the parties to the decree or order may apply to the Court or the Land Tribunal, as the case may be, which passed the decree or order, to amend such decree or order in accordance with the provisions of sub-section [1]." x "(4) On receipt of an application under sub-section [3], the Court or the Land Tribunal, as the case may be, may, after such enquiry as it deems fit, reopen the decree or order and pass an order containing the particulars specified in sub-section (2)." The above is sufficient to show that wherever the legislature so thought, it had taken care not only to expressly provide for reopening of concluded matters, but also to specify the court or authority which could do so, and to confer jurisdiction on them for so doing. 11. It is therefore not possible to accept the contention that in exercise of power under S.22(7), read with S.108(3), the Land Tribunal was competent in the 1 A proceedings, which alone was pending on 11 70 in this case, to reopen the quantum of solatium fixed by the order of August, 1965. 12. Reliance was placed on the Full Bench decision in Amma Brahmini and others v. Gopalan and others (1977 KLT. 556) to argue that the scope of S.108(3 could be differently understood. In that case, a suit bad been filed by the landlord for recovery of properties from a tenant to whom they had been leased out by the Court Receiver. S.3(1)(iv) of the principal Act had exempted all tenancies created by Court Receivers from its provisions relating to fixity of tenure. In that case, a suit bad been filed by the landlord for recovery of properties from a tenant to whom they had been leased out by the Court Receiver. S.3(1)(iv) of the principal Act had exempted all tenancies created by Court Receivers from its provisions relating to fixity of tenure. By Act 35/69, a proviso was introduced to S 3(1)(iv) which bad the effect of conferring fixity on such tenants also, in cases where the landlord bad not instituted proceedings for recovery within five years from the date on which his right to possess the property was declared by the court. The Full Bench held that the tenant could claim this benefit in a pending proceeding. But the suit in that case had been decreed only in 1973, and the pronouncement of this Court was in Second Appeal. There was no final decree before 1-1-70, requiring reopening after the said date; and in fact, the trial court itself had given effect to the tenant's claim by its decree. The proceedings pending was a suit, and in that suit, the trial court had jurisdiction to take note of the amendment and modulate relief. The decision is no authority for the proposition that in proceedings in the nature of execution, matters which have become final could be reopened on the basis of S.108(3). 13. The District Judge, Trichur had said much the same thing in A.S. 28/71; and the Munsiff-Land Tribunal had also expressed the same view in his order dated 25-10-1975. They had been refreshingly briefer; and the only justification for this long exercise here is that the Appellate Authority still found it possible to take a different view, audits dissent could find strenuous and able support here also. 14. In the result, CRP. No. 5690 of 1976 is dismissed and CRP. No.5521 of 1976 is allowed. The Appellate Authority's judgment is set aside. The order of the Land Tribunal in I. A. No. 6 of 1973 will stand. No costs.