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2016 DIGILAW 833 (KER)

MEENASSERI RAVUNNIKUTTY NAIR v. REVENUE DIVISIONAL OFFICER, REVENUE DIVISIONAL OFFICE,TIRUR TALUK,TIRUR

2016-10-03

P.B.SURESH KUMAR

body2016
JUDGMENT : Applications preferred by the petitioners for registration of their lands under the Malabar Land Registration Act, 1895 ('the Act' for short) have been rejected as per communications impugned in these writ petitions on the ground that the Act is not in force. The writ petitions are preferred contending that the Act is in force and that therefore, the applications preferred by the petitioners should have been considered in accordance with the Act. The short question, therefore, is whether the Act is in force as, claimed by the petitioners. 2. The Act provides for registration of proprietors of estates in the erstwhile Malabar and Wayanad areas of the State, for securing the public revenue in a summary manner. It is admitted by both sides that by virtue of the provisions contained in the Kerala Repealing and Amending Ordinance, 2005 ('the Ordinance'), the Act has been repealed. The case of the petitioners is that the said Ordinance has not been replaced by an Act of the legislature and as such, the same ceased to operate at the expiration of six weeks from the reassembly of the legislature, as provided for under Article 213(2) of the Constitution. The case of the respondents, on the other hand, is that the repeal effected by the Ordinance is permanent, though the ordinance was a temporary statute. 3. Heard Sri.V.R.K.Kaimal and Sri P.M.Paulose, the learned counsel for the petitioners as also Sri.Aravindakumar Babu, the learned Government Pleader. 4. The learned counsel for the petitioners relied on the decisions in D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378 , Seshasayee Paper and Boards Ltd. v. State of Kerala, 2003(3) KLT 267 and State of U.P. v. Dinkar Sinha, (2007) 10 SCC 548 , in support of their contention. Per contra, the learned Government Pleader relied on the decisions of the Apex Court in The State of Orissa v. Bhupendra Kumar Bose and others, AIR 1962 SC 945 , T. Venkata Reddy v. State of A.P., (1985) 3 SCC 198 , and State of Haryana v. Amar Nath Bansal, (1997) 10 SCC 700 , in support of his contention. 5. I have examined the contentions raised by the parties. As noted above, the fact that the Act has been repealed by the Ordinance is not in dispute. 5. I have examined the contentions raised by the parties. As noted above, the fact that the Act has been repealed by the Ordinance is not in dispute. The issue is whether the Act revived on the expiration of the period specified in Article 213(2) of the Constitution. An identical issue arose for consideration before the Apex Court in The State of Orissa v. Bhupendra Kumar Bose (supra). In the said case, an election held as per the provisions of the Orissa Muncipality Act was held to be invalid by the High Court of Orissa on the ground that the electoral rolls prepared were not in accordance with the provisions of the said Act. To overcome the said decision, the Governor of Orissa promulgated an ordinance validating the electoral rolls and the election, which were held to be bad by the court. The said ordinance was not replaced by an Act as in the instant case. An issue arose consequently as to whether the validation of the electoral rolls and the election made by the ordinance would survive after the period specified in Article 213(2) of the Constitution. The Apex Court, relying on Steavenson v. Oliver [(1841) 151 ER 1024], held that no inflexible rule can be laid down about the effect of the expiration of a temporary statute and that in some cases the repeal effected by a temporary statute would be permanent and would endure even after the expiration of the temporary statute. Paragraphs 21 and 22 of the said judgment read thus: 21. In our opinion, it would not be reasonable to hold that the general rule about the effect of the expiration of a temporary Act on which Mr. Cherry relies is inflexible and admits of no exceptions. It is true for instance that offences committed against temporary Acts must be prosecuted and punished before the Act. expires. If a prosecution has not ended before that day, as a result of the termination of the Act, it will ipso facto terminate. But is that an inflexible and universal rule? In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. But is that an inflexible and universal rule? In our opinion, what the effect of the expiration of a temporary Act would be must depend upon the nature of the right or obligation resulting from the provisions of the temporary Act and upon their character whether the said right and liability are enduring or not. As observed by Parker, B. in the case of Steavenson v. Oliver, (1841) 151 ER. 1024 at pp. 1026-1027. "there is a difference between temporary statutes and statutes which are repealed : the later (except so far as they relate to transactions already completed under them) become as if they had never existed; but with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters to construction." In this connection, it would be useful the interesting to consider the decision for the case of Steavenson, (1841)151 E.R. 1024 at pp. 1026-1027 itself. That case related to 6th Geo. 4, c. 133, section 4 which provided that every person who held a commission or warrant as surgeon or assistant-surgeon in His Majesty's navy or army, should be entitled to practise as an apothecary without having passed the usual examination. The statute itself was temporary and it expired on August 1, 1826. It was urged that a person who was entitled to practise as an apothecary under the Act would lose his right after August 1, 1826 because there was no saving provision in the statute and its expiration would bring to an end all the rights and liabilities created by it. The Court rejected this contention and held that the person who had acquired a right to practise as an apothecary, without having passed the usual examination, by virtue of the provision of the temporary Act, would not be deprived of his right after its expiration. In dealing with the question about the effect of the expiration of the temporary statute, Lord Abinger, C.B. observed that "it is by no means a consequence of an Act of Parliament's expiring, that rights acquired under it should likewise expire. Take the case of a penalty imposed by an Act of Parliament would not a person who had been guilty of the offence upon which the legislature had imposed the penalty while the Act was in force, be liable to pay it after its expiration? Take the case of a penalty imposed by an Act of Parliament would not a person who had been guilty of the offence upon which the legislature had imposed the penalty while the Act was in force, be liable to pay it after its expiration? The case of a right acquired under the Act is stronger. The 6 Geo. 4, C.133, provides that parties who hold such warrants shall be entitled to practise as apothecaries ; and we cannot engraft on the statute a new qualification, limiting that enactment." It is in support of the same conclusion that Parker, B. made the observations which we have already cited, "We must look at this act," observed Parker, B, "and see whether the restriction in the 11th clause, that the provisions of the statute are only to last for a limited time, is applicable to this privilege, in question. It seems to me that the meaning of the legislature was that all assistant-surgeons, who were such before the 1st of August, 1826, should be entitled to the same privileges of practising as apothecaries, as if they had been in actual practice as such on August 1, 1815, and that their privilege as such was of an executory nature, capable of being carried into effect after August 1, 1826." Take the case of a penalty imposed by a temporary statute for offences created by it. If a person is tried and convicted under the relevant provisions of the temporary statute and sentenced to undergo imprisonment, could it be said that as soon as the temporary statute expires by efflux of time, the detention of the offender in jail by virtue of the order of sentence imposed upon him would cease to be valid and legal? In our opinion, the answer to this question has to be in the negative. Therefore, in considering the effect of the expiration of a temporary statute, it would be unsafe to lay down any inflexible rule. If the right created by the statute is of an enduring character and has vested in the person, that right cannot be taken away because the statute by which it was created has expired. If a penalty had been incurred under the statute and had been imposed upon a person the imposition of the penalty would survive the expiration of the statute. If a penalty had been incurred under the statute and had been imposed upon a person the imposition of the penalty would survive the expiration of the statute. That appears to be the true legal position in the matter. 22. This question sometimes arises in another form. As Craies has observed : "If an Act which repeals an earlier Act is itself only a temporary Act, the general rule is that the earlier Act is revived after the temporary Act is spent; and inasmuch as ex hypothesi the temporary Act expires and is not repealed, the rules of construction laid down by Ss. 11(1) and 38(2) of the Interpretation Act, 1889, do not apply. But there will be no revivor if it was clearly the intention of the Legislature to repeal the earlier Act absolutely." Therefore, even as regards the effect of the repealing of an earlier Act made by a temporary Act, the intention of the temporary Act in repealing the earlier Act will have to be considered and no general or inflexible rule in that behalf can be laid down. This position has been tersely expressed by Lord Ellenborough C. J. when he observed in Warren v. Windle (1803) 3 East 205 at pp. 211-212 : 102 E. R. 578. "a law, though temporary in some of its provisions, may have a permanent operation in other respects. The stat. 26 Geo. 3, c. 108, professes to repeal the statute of 19 Geo. 2, c. 35, absolutely, though its own provisions, which it substituted in place of it, were to be only temporary." In other words, this decision shows that in some cases the repeal effected by a temporary Act would be permanent and would endure even after the expiration of the temporary Act. We have referred to this aspect of the matter only by way of analogy to show that no inflexible rule can be laid down about the effect of the expiration of a temporary Act." Relying on the said proposition, it was held by the Apex Court in the said case that having regard to the object of the ordinance and the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the ordinance expired, the validity of the election came to an end and their invalidity revived. It was also held by the Apex Court in the said case that the rights created by the ordinance in the said case must be held to endure and last even after the expiry of the ordinance. The proposition of law laid down by the Apex Court in the said case has been followed by the Apex Court in T. Venkata Reddy v. State of A.P., (supra). Paragraphs 19 and 20 of the said judgment read thus : 19. The next question is whether the posts of part-time village officers revive as the Ordinance is not replaced by an Act of the Legislature of the State. This contention of the petitioners is based on clause (2) of Article 213 of the Constitution. It is argued on their behalf that on the failure of the State Legislature to pass an Act in terms of the Ordinance it should be assumed that the Ordinance has never become effective and that it was void ab initio. This contention overlooks two important factors namely the language of clause (2) of Article 213 of the Constitution and the nature of the provisions contained in the Ordinance. Clause (2) of Article 213 says that an Ordinance promulgated under that article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor but every such Ordinance (a) shall be laid before the Legislative Assembly of the State, or, where there is a Legislative Council in the State, before both the Houses and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council, and (b) may be withdrawn at any time by the Governor. It is seen that Article 213 of the Constitution does not say that the Ordinance shall be void from the commencement on the State Legislature disapproving it. It says that it shall cease to operate. It only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause (2) of Article 213. It says that it shall cease to operate. It only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause (2) of Article 213. Secondly the Ordinance deals with two separate matters. By Section 3 of the Ordinance it abolishes the posts of part-time village officers on the commencement of the Ordinance and it further declares that every person who held the post of a part-time village officer would cease to hold that post with effect from that date. By Section 4 and other allied provisions the Ordinance has provided regarding the creation of posts of village assistants and appointment and conditions of service of village assistants who are full-time employees of the Government. There is no doubt that a separate provision is made in Section 5 of the Ordinance for payment of some amount to the ex- part-time village officers. Now by virtue of Section 3 of the Ordinance all the posts of part-time village officers stood abolished on January 6, 1984 and the petitioners ceased to be employees of the State Government. These two matters became accomplished facts on January 6, 1984, irrespective of whether the holders of these posts were paid any amount under Section 5 or whether the new posts of village assistants were filled up or not. Even if the Ordinance is assumed to have ceased to operate from a subsequent date by reason of clause (2) of Article 213, the effect of Section 3 of the Ordinance was irreversible except by express legislation. An anologous question arose for consideration before a Constitution Bench of this Court in State of Orissa v. Bhupendra Kumar Bose. The facts of that case were these. Elections were held for the Cuttack Municipality and twenty- seven persons were declared elected as Councillors. One of the defeated candidates filed a writ petition before the High Court of Orissa challenging the elections. The High Court set aside the elections on the ground that the electoral roll had not been prepared in accordance with law. Elections were held for the Cuttack Municipality and twenty- seven persons were declared elected as Councillors. One of the defeated candidates filed a writ petition before the High Court of Orissa challenging the elections. The High Court set aside the elections on the ground that the electoral roll had not been prepared in accordance with law. Since the State Government felt that the said decision affected not merely the elections to the Cuttack Municipality but some other municipalities in the State of Orissa where also similar irregularities had been committed in the preparation of the electoral rolls, the Governor promulgated an Ordinance on January 15, 1959 which contained provisions validating the electoral rolls and the elections held on their basis notwithstanding any judgment to the contrary. The said Ordinance, however, lapsed on April 1, 1959. The petitioner who had filed the writ petition earlier again filed another writ petition questioning the continuance of the elected Councillors in office by virtue of the Ordinance. The High Court allowed the writ petition and issued an injunction to the elected Councillors restraining them from functioning as Councillors. The State Government and the Councillors filed the above appeal before this Court. It was contended that the Ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and so as soon as it lapsed the invalidity in the elections to the Cuttack Municipality stood revived. This Court rejected the contention relying upon the decision in Steavenson v. Oliver. This Court finally observed at pp. 401-402 thus: "Now, turning to the facts in the present case, the Ordinance purported to validate the elections to the Cuttack Municipality which had been declared to be invalid by the High Court by its earlier judgment so that as a result of the Ordinance, the elections to the Cuttack Municipality must be held to have been valid. Can it be said that the validation was intended to be temporary in character and was to last only during the life time of the Ordinance? In our opinion, having regard to the object of the Ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived. In our opinion, having regard to the object of the Ordinance and to the rights created by the validating provisions, it would be difficult to accept the contention that as soon as the Ordinance expired the validity of the elections came to an end and their invalidity was revived. The rights created by this Ordinance are, in our opinion, very similar to the rights with which the court was dealing in the case of Steavenson and they must be held to endure and last even after the expiry of the Ordinance. The Ordinance has in terms provided that the Order of Court declaring the elections to the Cuttack Municipality to be invalid shall be deemed to be and always to have been of no legal effect whatever and that the said elections are thereby validated. That being so, the said elections must be deemed to have been validly held under the Act and the life of the newly elected Municipality would be governed by the relevant provisions of the Act and would not come to an end as soon as the Ordinance expires. Therefore, we do not think that the preliminary objection raised by Mr Chetty against the competence of the appeals can be upheld." 20. We do not, however, mean to say here that Parliament or the State Legislature is powerless to bring into existence the same state of affairs as they existed before an Ordinance was passed even though they may be completed and closed matters under the Ordinance. That can be achieved by passing an express law operating retrospectively to the said effect, of course, subject to the other constitutional limitations. A mere disapproval by Parliament or the State Legislature of an Ordinance cannot, however, revive closed or completed transactions." Following The State of Orissa v. Bhupendra Kumar Bose and others, (supra) the Apex Court has also held in State of Haryana v. Amar Nath Bansal (supra), in the context of a repealing enactment, as follows : "19. A mere disapproval by Parliament or the State Legislature of an Ordinance cannot, however, revive closed or completed transactions." Following The State of Orissa v. Bhupendra Kumar Bose and others, (supra) the Apex Court has also held in State of Haryana v. Amar Nath Bansal (supra), in the context of a repealing enactment, as follows : "19. If the provisions of Section 3 of Ordinance No. 1 of S. 2005 and Section 3(1) of Ordinance No. 16 of S. 2005 are construed in the light of the principles laid down by this Court in Bhupendra Kumar Bose it must be held that the object underlying the said provisions was to exclude the applicability of the laws of other Covenanting States in the territory of PEPSU by repealing them absolutely and to apply the laws applicable in Patiala State in the entire territory of PEPSU. Since the repeal of the laws of other Covenanting States by Ordinances Nos. 1 and 16 of S. 2005 was intended to be for all times, the expiration of the said Ordinances would not mean that the effect of the said Ordinances regarding non-applicability of the laws of other Covenanting States in the territory of PEPSU was nullified on the expiration of Ordinance No. 16 of S. 2005. In view of the express terms used in the said Ordinances it must be held that Jind State Civil Service Regulations, 1945 stood repealed absolutely and ceased to have any application after the Rajpramukh of PEPSU took over the administration of Jind State on 20-8-1948." The contentions raised by the parties have to be examined In the light of the aforesaid principles. 6. Section 2 of the Ordinance has repealed 102 original enactments and 595 amendment enactments. Section 3 of the Ordinance provides that notwithstanding the repeal of the Kerala Land Acquisition Act, 1961, any reference of the said Act in any existing enactment in force in the State shall be construed as Land Acquisition Act, 1894 and the said enactments are by virtue of the said section amended accordingly. Section 3 of the Ordinance provides that notwithstanding the repeal of the Kerala Land Acquisition Act, 1961, any reference of the said Act in any existing enactment in force in the State shall be construed as Land Acquisition Act, 1894 and the said enactments are by virtue of the said section amended accordingly. Section 4(1) of the Ordinance provides that the repeal by this Ordinance of any enactment shall not affect any other enactment in which repealed enactment has been applied, incorporated or referred to and this Ordinance shall not affect the validity, invalidity, effect or consequences of anything already done or suffered, or any right, title, obligation or liability already acquired, accrued or incurred or any remedy or proceeding in respect thereof, or any release or discharge of or from any debt, penalty, obligation, liability, claim or demand or any indemnity already granted or the proof of any past act or thing. The aforesaid sub-section also provides that the Ordinance does not affect any principle or rule of law, or established jurisdiction, form or course of pleading, practice or procedure or existing usage, custom, privilege, restriction, exemption, office or appointment, notwithstanding that the same respectively may have been in any manner affirmed or recognised or derived by, in or from any enactment hereby repealed. The aforesaid sub-section further provides that the repeal of the enactments by the Ordinance would not revive or restore any jurisdiction, office, custom, liability, right, title, privilege, restriction, exemption, usage, practice, procedure or other matter of thing not now existing or in force. Section 4(2) of the Ordinance provides that the provisions of section 4 of the Kerala Interpretation and General Clauses Act, 1125 shall be applicable in respect of the repeal of the enactments by this Ordinance. Section 4 of the Kerala Interpretation and General Clauses Act, 1125 reads thus: "4. Section 4(2) of the Ordinance provides that the provisions of section 4 of the Kerala Interpretation and General Clauses Act, 1125 shall be applicable in respect of the repeal of the enactments by this Ordinance. Section 4 of the Kerala Interpretation and General Clauses Act, 1125 reads thus: "4. Effect of Repeal:- Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not - (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed." In the light of the aforesaid provisions in the Ordinance, it cannot be said that the repeal of the Act by the Ordinance was intended to operate only for a temporary period. The purpose of the Ordinance was only to repeal the obsolete enactments. Since the repeal of the Act by the Ordinance was intended to be for all times, the expiration of the Ordinance would not revive the Act. 7. The effect of an ordinance in the nature of the subject Ordinance introduced solely for the purpose of repealing the obsolete enactments has not been considered in D.C. Wadhwa v. State of Bihar, (supra), Seshasayee Paper and Boards Ltd. v. State of Kerala, (supra) and State of U.P. v. Dinkar Sinha, (supra) relied on by the learned counsel for the petitioners and as such, the said decisions may not have any application to the facts of this case. The writ petitions are accordingly, dismissed.