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TMI Blog1963 (2) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... preamble to the Malabar Tenancy Act itself states that it is enacted for the purpose of defining, declaring etc., the law relating to landlord and tenant in the District of Malabar and certain neighbouring areas in the State of Madras. Under sub-section (2) of Section 1, the Act extends to the whole of the District of Malabar, to the Gudalur Taluk of the Nilgiris District and to the villages in the South Kanara District specified in the schedule. In fact, the schedule gives a list of about 33 villages. Only some of those villages, which formed part of the original South Kanara District and referred to in the schedule came into the Kerala State. We are not also concerned with the application of the Act to the Gudalur Taluk of the Nilgiris District because that area does not form part of the Kerala State. 2. This Act was admittedly in force in the areas forming part of the Kerala State to which it was applicable, till the passing by the State Legislature, of the Kerala Agrarian Relations Act, 1960, Kerala Act IV of 1961. This Act received the assent of the President on 21-1-1961 and was published in the State Gazette dated 3-2-1961. The preamble to this statute was to the effect tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court did not accept the challenges. The decision of the Supreme Court on the matter is reported in Purushothaman Nambudiri v. State of Kerala, 1962 K. L.J. 86 : A. I. R. 1962 S. C. 694= 1962 K. L. T. (S.C.) 1. In this decision, their Lordships held that the lands held by the petitioner before them from the Cochin area are an 'estate' under clause 2 (a) of Article 31A of the Constitution and, therefore, the Act is protected under Article 31A (2) (a) and, therefore, not open to be challenged on the ground that the material provisions of the Statute offend Articles 14, 19 and 31. 5. But so far as the challenge made against Kerala Act IV of 1961 by the landlord from the Hosdrug and Kasaragode Taluks was concerned, the Supreme Court accepted the challenge and ultimately held that the Act infringes the fundamental rights of the petitioner therein and struck down the entire Act in relation to its application to ryotwari lands which have come to the State of Kerala, from the State of Madras. This decision of the Supreme Court is reported in Kunhikoman v. State of Kerala- 1962 K. L. J. 59 : A. I. R. 1962 S. C. 723 : 1962 K. L. T. (SC.) 42. The decision of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I. R. 1962 S. C. 723 : 1962 K. L. T. (SC) 42; and accordingly the Full Bench held that the petitioners therein being ryotwari pattadars and the lands held by them being under ryotwari tenure, the whole of Kerala Act IV of 1961 will have to be struck down so far as ryotwari lands in the Malabar area are concerned. Accordingly, the entire Act was struck down. This decision of the Full Bench is reported in Sukapuram Sabhayogam v. State of Kerala, 1962 K. L. J. 1341 : I. L. R. 1962 (2) Ker. 756. Again, in respect of certain other tenures in the Travancore area, there was also challenge made as against Kerala Act IV of 1961 as affecting the fundamental rights of those petitioners. Those writ petitions again were dealt with by a Full Bench of this Court. In respect of several tenures in the Travancore area, the same Full Bench has ultimately accepted the contentions of the petitioners therein and in consequence has struck down the entire Act as violative of Articles 14, 19 and 31 of the Constitution. This decision is reported in P. G. Nambudiripad v. State of Kerala, I. L. R. 1963 (1) Ker. 5 : 1962 K. L. J. 1365 : A. I. R. 1963 Ker. 86 (FB). 9. But, for the purpose of considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various parties have again taken up a further contention that as Kerala Act IV of 1961 is void under Article 13 (2) of the Constitution, in view of the decision of this Court referred to above, there has been no repeal at all of the Malabar Tenancy Act, which continues to be in full force and operation. 12. Though I am dealing only with one writ petition, I have permitted the counsel appearing for the various parties in the other writ petitions also to place their contentions on both these aspects, namely, (a) the effect of the striking down of Kerala Act IV of 1961 as unconstitutional by this Court in relation to the repeal of the Malabar Tenancy Act, and (b) as to whether there is any vested right as pleaded by the parties and set out above. 13. The question of vested rights, if any, under the Malabar Tenancy Act, 1929, and as to whether such rights have or have not been taken away by Kerala Act IV of 1961 will really arise only if Kerala Act IV of 1961 is in force. If the contention of the learned counsel urging that Kerala Act IV of 1961, from its very inception was void, and of no effect, and in consequence there can, in law, be no repeal of the Malabar Tenancy Act, is accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Tenancy Act and that the said Act is in full force and operation. 18. On the other hand, Mr. A. S. Krishna Iyer, learned counsel, has opposed the stand taken both by the learned Advocate-General and Mr. Kuttikrishna Menon. According to Mr. Krishna Iyer, notwithstanding the striking down of Kerala Act IV of 1961, by this Court, in its relation to the ryotwari lands as offending the fundamental rights, nevertheless the repeal of the Malabar Tenancy Act effected by Section 95 (1) of Kerala Act IV of 1961 is perfectly valid. According to the learned counsel, once the Malabar Tenancy Act has been so repealed and almost identical and more elaborate provisions have been made in the new statute, dealing with several matters, there can be no question of the Malabar Tenancy Act coming back to life or being considered a statute which has not been repealed at all. In this connection, the learned counsel urged that there may be other tenures in respect of which this Court has no occasion to consider as to whether Kerala Act IV 1961 is valid or not. Again the Supreme Court also has upheld the validity of Kerala Act IV of 1961 so far as the Cochin area is concerned. According to the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly is to be regarded as having never, at any time, been possessed of any legal force. 25. In Rottschaefar on Constitutional Law, it is stated at page 34: The legal status of a legislative provision in so far as its application involves violation of constitutional provisions, must however be determined in the light of the theory on which Courts ignore it as law in the decision of cases in which its application produces unconstitutional results. That theory implies that the legislative provisions never had legal force as applied to cases within that clause. 26. In "Willison Constitutional Law", at page 89 it is stated: A judicial declaration of the unconstitutionality of a statute neither annuls or repeals the statute but has the effect of ignoring or disregarding it so far as the determination of the rights of private parties are concerned. The Courts generally say that the effect of an unconstitutional statute is nothing. It is as though it had never been passed............................................... 27. "Willoughby on Constitution of the United States",.Second Edition, Volume I, page 10 says: The Court does not annul or repeal the statute if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be looked into for any purpose. Mr. Justice Das, as he then was, expressing the majority view, observes at page 130: What Article 13 (1) provides is that all existing laws which clash with the exercise of the fundamental rights (which are for the first time created by the Constitution shall to that extent be void. As the fundamental rights became operative only on and from the date of the Constitution, the question of the inconsistency of the existing laws with those rights must necessarily arise on and from the date those rights came into being. It must follow therefore, that Article 13 (1) can have no retrospective effect but is wholly prospective in operation. After this first point is noted, it should further be seen that Article 13 (1) does not in terms make the existing laws which are inconsistent with the fundamental rights void ab initio or for all purposes. On the contrary, it provides that all existing laws, in so far as they are inconsistent with the fundamental rights shall be void to the extent of their inconsistency; they are not void for all purposes, but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of statutes declared void because of their being repugnant to the Constitution of the United States of America. It is obvious that if a Statute has been enacted and is repugnant to the Constitution, the Statute is void since its very birth and anything done under it is also void and illegal. The Courts in America have followed the logical result of this rule and even convictions made under such an unconstitutional Statute have been set aside by issuing appropriate writs. If a Statute is Void from its very birth, then anything done under it, whether closed, completed, or inchoate, will be wholly illegal and relief in one shape or another has to be given to the person affected by such an unconstitutional law. This rule, however, is not applicable in regard to laws which were existing and were constitutional, according to the Government of India Act, 1935. Of course, if any law is made after 26-1-1950 which is repugnant to the Constitution, then the same rule will have to be followed by Courts In India as is followed in America and even convictions made under such an unconstitutional law will have to be set aside by resort to exercise of powers given to the Court by the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts under Article 19 (1) (g) of the Constitution and is not shown to be protected by clause (6) of the Article, as it stood at the time of the enactment, must be held to be void under Article 13 (2) of the Constitution. 36 It will be seen from the above extract that the Supreme Court approves of the statement of Professor Cooley that the statute which is void for unconstitutionality is a dead statute. 37. The question of the effect of striking down Section 13(b) of the Bombay Prohibition Act, Bombay Act 25 of 1949, by the Supreme Court in its decision in State of Bombay v. F. N Balsara, A. I. R. 1951 S. C, 318, came up for consideration before their Lordships of the Supreme Court in Behram Khurshid v. State of Bombay, A.I.R. 1955 S. C 123. In the first instance Bhagwati, Jagannadhadas and Venkatarama Iyer JJ. dealt with the matter and as the learned Judges could not reach an unanimous decision and expressed different and divergent opinions, they granted an application for review of their judgment and subsequently referred the question to a Constitution Bench. The question that was referred related to the effect of the declaration by the Supreme Court that clause (b) of Section 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands concluded by the majority decision in A. I. R. 1951 S. C. 128. The minority view there was that the word 'void' had the same meaning as 'repeal' and therefore a statute which came into clash with fundamental rights stood obliterated from the statute book altogether, and that such a statute was void 'ab initio'. The majority however held that the word 'void' in Article 13 (1) so far as existing law were concerned, could not be held to obliterate them from the statute book, and could not make such laws void altogether, because in its opinion, Article 13 had not been given any retrospective effect. The majority however held that after the coming into force of the Constitution, the effect of Article 13 (1) on such repugnant laws was that it 'nullified' them, and made them ineffectual and nugatory and devoid of any legal force or binding effect. It was further pointed out in one of the judgments representing the majority view, that the American rule that if a statute is repugnant to the Constitution the statute is void from its birth, has no application to cases concerning obligations incurred or rights accrued in accordance with an existin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there is no oral distinction between them. They represent two aspects of want of legislative power. The legislative power of Parliament and the State Legislatures as conferred by Articles 245 and 246 of the Constitution stands curtailed by the fundamental rights Chapter of the Constitution. A mere reference to the provisions of Article 13(2) and Article 245 and 246 is sufficient to indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with Part III of the Constitution after the coming into force of the Constitution. Article 13 (2) is in these terms: The State 'shall not' make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention be void. This is clear and unequivocal mandate of the fundamental law prohibiting the State from making any laws which come into conflict with Part III of the Constitution. The authority thus conferred by A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights contained in part III of the Constitution is unconstitutional and as such is not law and is null and void. 45. In Narain v. State of M. P. (A. I. R. 1955 S. C. 781), the learned Chief Justice in discussing the scope of Article 13 (1) of the Constitution adverts to the American authorities cited before the learned Judge and observes at page 785 as follows: The American authorities refer only to post-Constitution laws which wore inconsistent with the provisions of the Constitution. Such laws never came to life but were still-born as it were. The American authorities, therefore, cannot fully apply to pre-Constitution laws which were perfectly valid before the constitution. 46. It will be seen from these observations of the learned Chief Justice that post-Constitution laws which are inconsistent with the provisions of the Constitution must be considered to have never come to life but were still born as it were. 47. Again the Supreme Court had to consider the expression "void" occurring in Articles 13(1) and 13 (2) of the Constitution in Deep Chand v. State of U. P. (A. I. R. 1959 S. C. 648). No doubt, the learned Judges had to consider the doctrine of eclipse, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power is made subject to the limitations imposed by Part III of the Constitution. The general power to that extent is limited. A Legislature, therefore, has no power to make any law in derogation of the injunction contained in Article 13. The learned Judge, in particular considers Articles 13 (1) and 13 (2) and states that Article 13 (1) recognizes the validity of pre-Constitution laws and only declares that the said laws would be void thereafter to the extent of their inconsistency with part III; whereas clause (2) of Article 13 imposes a prohibition on the State making Laws taking away or abridging the fundamental rights conferred by Part III and declares that laws made in contravention of that clause shall to the extent of contravention be void. 51. Again referring to clauses (1) and (2) of Article 13 the learned Judge at page 656 states: There is a clear distinction between the two clauses. Under clause (1), a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III; whereas, no post-Constitution law can be made contravening the provisions of Part III, and therefore, the law, to that extent, though made, is a nullity from it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples laid down in Behram Kurshid v. Bombay State (A. I. R. 1955 S. C. 123) and adverts to one of the points discussed and laid down in the said decision that as regards pre-Constitution laws it was held therein as the pre-Constitution law was validly made it existed for certain purposes even during the post-Constitution period. After adverting to this principle the learned Judge states at page 659: This principle has no application to post-Constitution laws infringing the fundamental rights as they would be ab initio void in toto or to the extent of their contravention of the fundamental eights. 55. Here again, it will be seen that the learned Judge emphasizes that a post-Constitution law which infringes the fundamental rights is ab initio void in toto. 56. The learned Judge deduces the following three propositions from the decision of the Supreme Court in Behram Kurshid v. Bombay State (A. I. R. 1955 S. C. 123), namely (1) when the law making grower of a State is restricted by a written fundamental law, then any law opposed to the fundamental law is in excess of Legislative Authority and is thus a nullity; (2) even m the case of a statute to which Article 13 (1) applies, thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding from the contravention of fundamental rights lead to the same result and that is that the offending legislation is void and non est. 59. It will be now seen from the various principles laid down by the Supreme Court than a statute enacted in the teeth of the prohibition contained in Article 13(2) of the Constitution is void ab initio in toto and is a nullity. Mr. Justice Mahajan in Kashavan Madhava Menon v. State of Bombay (A. I. R. 1951 S. C. 128) at page 138 states the principle that if a statute, has been enacted and is repugnant to the Constitution, the statute is void since its very birth and anything done under it is also void and illegal. Again in Saghir Ahmad v. State of U. P. (A. I. R. 1954 S. C. 728), Mr. Justice Mukherjea quotes with approval the passage in "Constitutional Limitations" by Professor Cooley that a statute void for unconstitutionality is a dead one. In Behram Kurshid v. Bombay State (A. I. R. 1955 S. C. 123), Mr. Justice Mahajan states that the American Rule that if a statute is repugnant to the Constitution the statute is void from its birth will have to be followed in India in respect of post-Constitution Acts. Again, in Bhikaji Narain v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Ordinance has no bearing on the point that arises for consideration which is as to the effect of the Court striking down Kerala Act IV of 1961 as unconstitutional and void. I may also add that Kerala Ordinance 8 of 1962 has been repealed by the Kerala Tenants and Kudikidappukars Protection Act, VII of 1963, which has now become law and even the provisions contained in the said Act do not have any bearing on the matter arising for consideration before me. 65. Mr. A. S. Krishna Iyer, learned counsel, also further urged that section 95 of the Kerala Act 4 of 1961, relating to repeal of the enactment, in question, is separable and, therefore, the repeal of the Malabar Tenancy Act can be effected. There is no question of separability of any part of Kerala Act IV of 1961 arising for consideration in this case, because the Full Bench of this Court, has categorically struck down the entire provisions of Kerala Act IV of 1961 relating to ryotwari tenure in the Malabar area. Therefore, no question of severablility or separability of any part of the Act comes into play at all. 66. In the view that I take that inasmuch as Kerala Act IV of 1961 was still born, null and void from its inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by this Court and the position is that the Malabar Tenancy Act is in force in the Malabar area so far as ryotwari lands are concerned. 73. The petitioner cannot have the relief of the appellate authority being directed to dispose of the appeal itself because it is seen that the appellate authority has already remanded the matter by its order, dated 17th October 1960 and in consequence of the order of remand the Rent Court has taken further proceedings and therefore, the proceedings will have to be continued by the Rent Court itself. 74. But the grievance of the petitioner that there is no Rent Court functioning which can continue the proceedings is absolutely justified. If the Malabar Tenancy Act is in force there is an obligation on the State Government to constitute the appropriate authorities under the statute. But I am not issuing a writ of mandamus as such directing the State Government to constitute the Rent Court. This court can very well proceed on the basis that having due regard to the decision given herein that the Malabar Tenancy Act is in force in the Malabar area, the State Government will take appropriate steps to implement the decision of this Court. But I make ..... X X X X Extracts X X X X X X X X Extracts X X X X
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