Kunhikannan v. Mannan Paithal — 1990 DIGILAW 97 (KER)

Judgment :- 1. The Government by Notification S.R.O.1631/89 issued under S.18(1) of The Kerala Buildings (Lease and Rent Control) Act, 1965, for short The Rent Control Act, has conferred on the District Judges having jurisdiction over the areas within which the provisions of the said Act have been extended, the powers of the appellate authorities for the purposes of Rent Control Act, in the said areas. This notification is in supersession of all previous notifications on the subject. 2. I shall now read the notification: "S.R.O.No.1631/89.-In exercise of the powers conferred by clause (a) of sub-section (1) S.18 of The Kerala Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) and in supersession of all previous notifications on the subject, the Government of Kerala hereby confer on the District Judges having jurisdiction over the areas within which the provisions of the said Act have been extended, the powers of the Appellate Authorities for the purposes of the said Act, in the said areas". 3. This notification was published in the Kerala Gazette on 26th September, 1989. As per this notification, on and from 26-9-1989, the District Judges will be the appellate authorities within the meaning of S.18(1) of The Rent Control Act. 4. On the coming into force of the notification there arose a question as to whether the appeals pending before the Subordinate Judges on whom the Government by the previous notification had conferred the powers of the appellate authority within the meaning of S.18(1), should be made over to the District Judges. The High Court on the administrative side issued an Official Memorandum No.D1-46682/86 dt. 8-9-1989, the relevant portion therefrom reads thus:- " When the notification comes into force, the Subordinate Judges will send the records of the pending cases to the concerned District Judges after issuing notice to the counsel/ parties requesting them to appear before the transferee court on the dates specified therein; under intimation to the High Court. The District Judges will take up the cases on the notified dates and pass appropriate orders". 5. The District Judges will take up the cases on the notified dates and pass appropriate orders". 5. The learned counsel representing the parties submit that inasmuch as the notification is not retrospective in operation, the notification will not apply to the appeals pending on the coming into force of the notification before the Subordinate Judges and if that be so the direction given by the High Court on the administrative side that the Subordinate Judges shall transfer all the pending appeals to the District judges is not sustainable. 6. Before I consider the above argument of the learned counsel I shall endeavour to recapitulate the law on the subject. It is axiomatic that every new enactment could affect future and not the past-Nova constitutio futuris forman imponere debet non proeteritis. In other words the presumption is not to give retrospective effect to a statute. The right of appeal is more than a matter of procedure; on the other hand, it is a substantive right. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding. The institution of the suit carries with it the implication that the right of appeal then in force is preserved to the parties thereto till the rest of the career of the suit. The right of appeal being a vested right, the said right to enter the superior court exists as on and from the date of the commencement of the action and although the said right may actually be exercised only when the adverse judgment is pronounced, the said right is to be governed by the law prevailing at the date of the institution of the proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. This vested right of appeal can be taken away only a subsequent enactment provided it so provides expressly or by necessary intendment and not otherwise. (See the decision of the Supreme Court in Garikapati v. Subbiah Choudhry AIR 1957 S.C. 540). The above principles have as their basis the ruling of the Privy Council in Colonial Sugar Refining Company Ltd. v. Irving (1905 AC 369). (See the decision of the Supreme Court in Garikapati v. Subbiah Choudhry AIR 1957 S.C. 540). The above principles have as their basis the ruling of the Privy Council in Colonial Sugar Refining Company Ltd. v. Irving (1905 AC 369). The Privy Council there has observed thus regarding the right of a suitor in a pending action of an appeal to a superior tribunal:- "To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested". This dictum of the Privy Council has been noted with approval by the Supreme Court in Garikapati's case. This principle in my opinion can be said to be the one reflected in S.4 of the Kerala Interpretation and General Clauses Act. 7. The Supreme Court considering an identical question has observed thus in Mohd. ldris and others v. Sat Narain and others (AIR 1966 S.C. 1499):- "The question is whether a different intention appears in either the Abolition Act or the amending Act XVI of 1953, for otherwise the old proceeding could continue before the Munsiff. There is nothing in the Abolition Act which takes away the right of suit in respect of a pending action. If there be any doubt, it is removed when we consider that the U.P. Agriculturists Relief Act was repealed retrospectively from July 1, 1952 only and it is not, therefore, possible to give the repeal further retrospectivity so as to affect a suit pending from before that date. The jurisdiction of the Assistant Collector was itself created from July 1,1952 and there is no provision in the Abolition Act that pending cases were to stand transferred to the Assistant Collector for disposal. Such provisions are commonly found in a statute which takes away the jurisdiction of one court and confers it on another. The jurisdiction of the Assistant Collector was itself created from July 1,1952 and there is no provision in the Abolition Act that pending cases were to stand transferred to the Assistant Collector for disposal. Such provisions are commonly found in a statute which takes away the jurisdiction of one court and confers it on another. From these two circumstances it is to be inferred that if there is at all any expression of intention it is to keep S.6 of the General Clauses Act applicable to pending litigation". (emphasis supplied) (See also Shri Vijaya Lakshmi Rice Mills v. State of A.P., AIR. 1967 SC 1471). It is therefore clear, going by the above pronouncements of the apex court, that the appeals pending before the Subordinate Judges at the time of the commencement of the notification shall be heard and disposed of by the Subordinate Judges unless the notification by express provision or by necessary intendment intefers with the pending proceedings. 8. The question therefore is, does the notification either expressly or by necessary intendment interfere with the right of appeal vested in the litigant. The language employed in the notification, to my mind, makes it clear that it does not take away the right of appeal vested in the litigant. That it is so is further established by the fact there is no provision in the notification that appeals pending before the Subordinate Judges shall stand transferred to the District Judges on whom the powers of the Appellate Authority within the meaning of S.18(1) have been conferred. It is also relevant in this context to note that the District Judges were conferred with the power of the appellate authority only by the notification and the said power was created only with effect from 26th September, 1989. This circumstance would indicate that the intention of the Government was to keep S.4 of The Kerala Interpretation and General Clauses Act applicable to pending litigations. It is also profitable to note in this connection another circumstance inferable from the facts stated hereunder. S.20 of The Rent Control Act enables the party aggrieved by the judgment of the Subordinate Judge to file a revision before the District Court. It is also profitable to note in this connection another circumstance inferable from the facts stated hereunder. S.20 of The Rent Control Act enables the party aggrieved by the judgment of the Subordinate Judge to file a revision before the District Court. On the application of such an aggrieved party the District Court can call for and examine the records relating to any order passed or proceedings taken under the Act by the appellate authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit. Construing this section, this court has even observed that the District Court is competent to take oral evidence or receive fresh documentary evidence (See Amir v. Mariamma,1979 KLT SN. 59). In disposing of the application under S.20A the revising authority can, if the circumstances warrant, remand the case for fresh disposal according to such directions as it may give. The remand can be made to the appellate authority as well. The District Court after receiving fresh evidence can therefore remand the case to the appellate authority for a denovo consideration of the entire case. This power of remand is not interferred with by the notification. This circumstance would help one to infer that the Notification intends to keep S.4 of The Kerala Interpretation and General Clauses Act applicable to pending appeals. (See also Joseph v. Malathy Amma,1989(2) KLT 953 and Mathew v. Gilbert (1990 (1) KLT.139). 9. To sum up: The notification does not either expressly or by necessary intendment interfere with the appeals pending before the Subordinate Judges. That means the direction to transfer the said appeals to the District Judges is not sustainable in law. 10. Advocate Sri. P. K. Balasubramanyan, the counsel representing the petitioner in C.R.P. 158/1990 cited a Division Bench ruling of this court in Poulose and others v. Catholic Syrian Bank Ltd. & others (1988 (2) KLT. 599) and submitted that it may perhaps be argued that no litigant/suitor has a vested right to have his appeal heard by a particular forum or by a particular number of judges. On going through the decision it can be seen that the Division Bench has made such an observation. 599) and submitted that it may perhaps be argued that no litigant/suitor has a vested right to have his appeal heard by a particular forum or by a particular number of judges. On going through the decision it can be seen that the Division Bench has made such an observation. The said observation however, cannot be placed on a par with a principle laid down by the court because no question warranting such an observation did arise for consideration in that decision. The said observation therefore can at best be said to be a casual expression of opinion upon a point which did not arise for consideration in the case. It therefore does not have any binding effect. (See pages 259 and 261 of Law in The Making by C.K. Alien, 7th edition). It is relevant in this connection to take note of the facts of that case. The Notification, the effect of which was considered by the Division Bench, was one issued under S.5 of The Kerala Shops and Commercial Establishments Act, 1960. The Notification exempted scheduled commercial banks from the purview of The Shops and Commercial Establishments Act. The question as to whether an appeal under S.18 would be available to a dismissed employee of a commercial bank therefore did not arise for consideration at all because the said right of appeal had expressly been taken away by the Notification. Nonetheless the Division Bench made the observation. The observation therefore shall confine to the facts of that case. It is all the more so because the observation, in my view also runs counter to the principle enunciated by the Supreme Court in Garkapati's case. 11. In the light of what is stated above, C.R.P. 158/1990 requires to be dismissed. Accordingly the same is dismissed. 12. C.R.P. 2550 of 1989, in the light of the above discussion requires to be filed before the District Court. C.R.P. 2550 of 1989 therefore is directed to be returned to the petitioner for being presented before the District Court. The petitioner is given four weeks' time from the date on which the Office returns the revision and the connected files to him to present the revision before the District Court. 13. C.R.P. 2550 of 1989 therefore is directed to be returned to the petitioner for being presented before the District Court. The petitioner is given four weeks' time from the date on which the Office returns the revision and the connected files to him to present the revision before the District Court. 13. Accordingly, the following directions are issued in regard to pending matters:- i. The appeals filed before the date of the notification i.e. 26-9-1989 and pending before the Subordinate judges shall be heard and disposed of by the Subordinate Judges. ii. Such appeals which have already been transmitted to the District Court pursuant to the Official Memorandum referred to elsewhere in this order shall be retransmitted to the Subordinate Judge. Allowed.