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Judgment
P.D. Dinakaran, J.—Heard both the parties. The above appeal is directed against the order dated 3rd January 1990 made in W.P. No.
10833 of 1981.
The appellant in the Writ Appeal is the third respondent in the writ petition. The first respondent in the Writ Appeal is the only legal
representative of the deceased writ petitioner Ramaswamy Mudaliar. The first respondent was permitted to prosecute the writ petition by order of
this Court dated 15.4.1988 in W.M.P. No. 1291 of 1988.
For the purpose of convenience, the parties are referred as per their rank in the Writ Appeal.
The first respondent herein (the petitioner in the writ petition) filed the above writ petition No. 10833 of 1981 for issue of Writ of Certiorari
calling for the records relating to the proceeding of the Appellate Authority, Sub-Collector, Kumbakonam (second respondent herein), dated 10th
August 1981 made in K.A.P. No. 17 of 1980, wherein, the proceeding of the Authorised Officer, Special Tahsildar. Kumbakonam (third
respondent herein) dated 21.11.1982 made in K.P. No. 913/1979/F2, was confirmed granting eight cents in R.S. No. V18. Valarpuram Vattam,
Alamkurichi Village. Kumbakonam Taluk, in favour of the appellant herein under the provisions of the Tamil Nadu Occupants of Kudiyiruppu
(Conferment of Ownership) Act, 1971 (Act 40 of 1971) (hereinafter referred to as the ""Act"").
The learned single Judge, by order dated 3.1.1990 in Writ Petition No. 10833 of 1981. which is under appeal, quashed the said order of the
Appellate Authority dated 10.8.1981 and therefore, the grant of patta for eight cents to the appellant herein stands cancelled.
Aggrieved by the said order dated 3.1.1990, the tenant (appellant herein) preferred this Writ Appeal.
The brief facts of the case are stated as follows:
According to the appellant, a site of an extent of eight cents out of sixteen cents in R.S. No. 5/18 of Valarpuram Vattam, Alamkurichi Village,
Kumbakonam Taluk, originally belonged to one Chellathatchi, who sold the said site of eight cents to one Pichamuthu Padayachi, who was the
father of the respondents 4 and 5 in the appeal, from whom the appellant herein purchased the same. Remaining eight cents in the said site R.S.
No. 5/18 belonged to one Ponnusamy Odayar, the 6th respondent herein.
The appellant herein, constructed a house in the said site of eight cents as a tenant for annual rent of Rs. 3/- under Pichamuthu Padayachi,
namely, the father of the respondents 4 and 5 herein, and thereafter, under Ponnusamy Odayar, the 6th respondent herein. The appellant himself is
paying the House Tax.
The appellant claims that he is an agriculturist and he is not having any site or house site of his own and therefore, he claims the benefit under the
Act.
The appellant further contends that he was moving the Revenue Authorities for the enforcement of Kudiyiruppu, but no action has been taken,
and therefore, the appellant filed a petition before the third respondent herein. The appellant also prays for condonation of the delay if there was
any delay in filing the petition.
A detailed counter affidavit was filed on behalf of the first respondent. The first respondent contends mat he purchased the eight tents from
Pichamuthu Padayachi, namely, the father of the respondents 4 and 5 by a registered sale deed dated 5.2.1971 and took possession of the same.
The eastern half of the site of eight cents belongs to Ponnusamy Odayar, namely the 6th respondent herein. According to the counter affidavit
filed by the first respondent the appellant had constructed a hut in the eastern half of the site which belongs to Ponnusamy Odayar namely the sixth
respondent herein.
The first respondent further contends that the appellant is neither a tenant nor a licencee of the said site and therefore the claim of tenancy right
is false; the appellant trespassed the eastern half portion belonging to the sixth respondent herein on 28.7.1973 by extending his cattle shed; and
the first respondent therefore filed a suit for possession against the appellant before the learned District Munsif, Kumbakonam in O.S. No. 554 of
1973 which was decreed in favour of the first respondent herein on 25.7.1974.
The appellant preferred an appeal before the Sub-Court, Kumbakonam in A.S. No. 167 of 1974 against the Decree and Judgment dated
25.7.1974 in O.S. No. 554 of 1973 and the said appeal was also dismissed and subsequently confirmed in S.A. No. 1553 of 1976 by this Court.
The first respondent further contends that the appellant is having a vacant land of an extent of 1.05 acres; he is neither a tenant nor a licencee of
the impugned plot and hence the appellant is not entitled for the kudiyiruppu patta with regard to eight cents on the eastern half portion in R.S. No.
5/18. The first respondent complains that the appellant was only a trespasser at the time of a crucial date namely when the Act came into force,
and therefore, denies the contention of the appellant that he was in possession of the property.
The first respondent also contends that the petition preferred by the appellant is barred by limitation and therefore not maintainable in law.
The appellant examined himself as PW1 and also examined one Palanivel Odayar as PW2. On behalf of the appellant; Panchayat Property
Tax Receipts from the year 1978 were marked as Ex-P1 to P6, voters list for the year 1960 as Ex-17, identity cards for the year 1975 and 1979
as Ex.P8 and P9, deposition of the first respondent and karnam were marked as Ex-P12, P13 and P14.
On behalf of the respondents, the first respondent examined himself as RW1 and the Karnam of Valarpuram Vattam was examined as RW2.
The first respondent filed the decree and judgment in O.S. No. 554 of 1971 as Ex-R1 and the deposition of the appellant in the said suit as Ex-R2
and the Sale Deed of the impugned land in favour of the first respondent as Ex-R3 and voter list for the year 1975 as Ex-R4.
18A. The third respondent after a careful consideration of the deposition of the witnesses and evidences on record, by his order dated 21.11.1980
held that the appellant herein is entitled for the kudiyiruppu patta for the said eight cents.
18B. Aggrieved by the said order of the Authorised Officer the third, respondent herein, dated 21.11.1980, the first respondent preferred an
appeal before the second respondent herein who, by his order plated 10th August 1981, dismissed the appeal confirming the order of the third
respondent dated 21.11.1980:
18C. The first respondent therefore filed W.P. No. 10833 of 1981 challenging the proceedings dated 21.11.80 and 10.8.91 of the third and
second respondents herein respectively on the following grounds:
i. the very application filed by the appellant is barred by limitation.
ii. the third respondent, having observed that the application was filed belatedly, ought to have held that the same was barred by limitation.
iii. in the absence of any application for condoning the delay in filing the application or any finding as to the limitation, the very application for grant
of kudiyiruppu patta should have been dismissed.
The learned single Judge, by his order dated 3.1.80, held that the question of limitation goes to the root of the jurisdiction, and the same, being
a question of law, ought to have been decided by the third respondent at the very earliest stage; the non-consideration of such an issue related to
the jurisdiction itself vitiates the entire impugned proceedings and accordingly allowed the writ petition and remitted the matter to the third
respondent with a direction to restore the K.P. No. 893/1979/F2 and to pass a fresh order on merits after hearing both sides.
The learned single Judge, in his order dated 3.1.90. thus held as follows:
Rule 3 of the Rules framed under Tamil Nadu Act, 40 of 1971, viz., Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Rules,
1972, states that every application for the settlement of a dispute u/s 4 shall be in Form-I and shall be made to the Authorised Officer having
jurisdiction, over the area within a period of two months from the, date an which the dispute arose. The Proviso states that the application may be
received by the Authorised Officer after the period of two months aforesaid, if the Authorised Officer for reason to be recorded in writing, is
satisfied that the applicant had sufficient cause for not applying within that period.
... Normally an application for grant of patta u/s 4 should be made within a period of two months from the date on which such a dispute arose."" ;
...Even though where a power vested in the Authorised Officer had been specifically drawn by raising a plea regarding limitation, the least that the
Authorised officer could have done, is to exercise the jurisdiction vested in him by passing an order on merits regarding the condonation of delay,
one way or the other. He should have assigned reasons in support of his conclusion. This he has not done. Therefore, it follows that the order of
the Authorised Officer is vitiated by non-application of mind to a very relevant issue.
Thus the learned single Judge allowed the writ petition by order dated 3.1.1990 and aggrieved by the said order dated 3.1.90, the appellant herein
has preferred the above Writ Appeal.
Mr. Srinath, learned counsel appearing on behalf of the appellant, contends that:
i. The Tamil Nadu Occupants of Kudiyiruppu (Conferment of Ownership) Rules, 1972, (hereinafter referred to as the Rules) was framed under the
rule making powers conferred u/s 27 of the Act. Section 4 of the Act empowers the Authorised Officer to decide the dispute regarding the grant of
kudiyiruppu patta, but, no period of limitation is prescribed for filing an application thereunder. Therefore, Rule 3 which stipulates a period of
limitation for filing an application for settlement of dispute u/s 4 , is liable to be held ultra vires the Act. The learned counsel for the appellant relies
on AIR 1972 SC 1935, 1988 TNLJ page 43 , 1967 S.C. 1823 and AIR 1969 Madras 91 in this regard.
ii. Even though Section 5 of the Act enables the Government to prescribe the period of limitation for filing the appeal, such a limitation is impliedly
excluded for settling the dispute u/s 4 of the Act, and therefore, the period of limitation prescribed under Rule 3 is void. In this connection, the
decision in Jugsalai E.S. Co., v. State reported in AIR 1973 Patna 318 is relied upon.
iii. Rule 3, prescribes only a limitation for procedural purpose and the same shall not take away the substantial right itself conferred u/s 4 of the Act
in the absence of any prescription of limitation u/s 4 of the Act and in support of this, the decision in AIR 1972 1935 (SC) is relied upon.
iv. In the absence of such limitation for filing application u/s 4 of the Act, the third respondent is not bound to consider or decide the plea regarding
the limitation, even though it is specifically raised by the first respondent herein.
v. It is also contended that the appellant had in fact, moved the revenue authorities for several years, and therefore, the quashing of the impugned
orders dated 21.11.80 and 10.8.91 on the ground of limitation is erroneous and illegal;
vi. It is contended that respondents 3 and 4 had rightly held that the decree and judgment of the Civil Court have only evidential value and the same
should not be taken as a conclusive evidence for deciding the dispute referred u/s 4 of the Act. The decisions in R. Veerappan Vs. Shanmugavelu,
and Kalyanasundram Udayar v. Pazhaniayya Udayar ( AIR 1983 Madras 86=(1982) 95 L.W.56) are relied in this regard.
vii. On merits, the impugned order of the respondent dated 21.11.80 and 10.8.91 of the third and second respondents respectively are valid and
justified inasmuch as the same are based on relevant material evidences on record and well-founded reasons;
Mr. Srinath, learned counsel for the appellant, further contends that as the question of limitation itself does not arise in the instant case, the
order of the learned Single Judge dated 3.1.1990 remitting the matter to the Authorised Officer, namely, the third respondent herein is illegal and
untenable in law.
Per Contra, Mr. R. Nandakumar, learned counsel appearing for the first respondent, contends that the rules are made by exercising rule
making power conferred on the Government u/s 27(1) of the Act. Rule 3 prescribes the limitation for filing an application u/s 4 of the Act. The said
rule is deemed to be valid in view of the tabling procedure provided u/s 27(3) of the Act, and therefore contends that Rule 3 is not ultra vires
Section 4 of the Act, nor void in law. Hence, it is contended that the order of the learned single Judge dated 3.1.1990 in quashing the impugned
proceedings dated 3.1.80 is valid in law.
Mr. R. Nandakumar, learned counsel for the first respondent, further contends that the finding of the Civil Court that the appellant is a
trespasser is valid in law and therefore, binding on the respondents 2 and 3 herein in view of the decision in Ammayappan Vs. The Additional
Collector in-charge and Collector and Others, .
In reply to this, Mr. Srinath, learned counsel for the appellant contends that mere compliance of tabling procedure provided u/s 27(3) of the
Act by itself will not validate Rule 3 inasmuch as the same is ultra vires Section 4 of the Act. Learned counsel for the petitioner places reliance on
the decision reported in Assistant Collector of Central Excise Vs. M/s. Ramakrishnan Kulwant Rai, , Hukam Chand etc. Vs. Union of India (UOI)
and Others, and Kerala State Electricity Board Vs. The Indian Aluminium Co. Ltd., and Regional Transport Officer, Chittoor and Others Vs.
Associated Transport Madras (P) Ltd. and Others, .
We have given our anxious considerations to the submissions of both sides.
The points for consideration that arise in this writ appeal are:
Point No. 1: Whether the order of the learned single Judge dated 3.1.1990, allowing the writ petition and quashing the impugned proceedings
dated 21.11.80 and 10.8.91 of the respondents 3 and 2 respectively, on the ground that the application u/s 4 filed by the appellant is barred by
limitation, in view of Rule 3 of the Act, is sustainable in law?
Point No. 2: b. If the respondents 3 and 2 are right in entertaining the application of the appellant u/s 4 of the Act, notwithstanding Rule 3, whether
the finding of the respondents 3 and 2 are sustainable in law?
Point No. 1: It is relevant to refer to Sections 3, 4, 5, 16, 23and 27and Rule 3 of the Act, in this regard.
Sec. 3: Occupant of Kudiyiruppu to become a owner:
(1) Save as otherwise provided in this Act, any agriculturalist or agricultural labourer who was occupying any kudiyiruppu on the 19th June 1971,
either as tenant or as licensee shall, with effect from the date of the commencement of this Act, be the owner of such kudiyiruppu and such
kudiyiruppu shall vest in him absolutely free from all encumbrances.
(2) Where, in the case of an occupant of kudiyiruppu in whom such kudiyiruppu vests under Sub-Section (1), the superstructure belongs to any
person other than such occupant, such superstructure shall also, with effect from the date of the commencement of this Act, vest in such occupant
absolutely free from all encumbrances.
(3) Nothing in Sub-Section (1) shall be deemed to confer the right ownership of kudiyiruppu on any agriculturalist or agricultural labourer if he
already owns a dwelling house or hut or a house site within a distance of one kilometer from the Kudiyiruppu referred to in Sub-Section (1):
Provided that the site on which the selling house or hut is erected or the house-site concerned is more than three cents in extent.
Unamended Section 4 reads as follows: Decision by the authorized officer:
(1) If any dispute arises whether any agriculturist or agricultural labourer was occupying any kudiyiruppu on the 19th June, 1971; for purposes of
Section 3 of this Act, such dispute shall be decided by the authorised officer.
(2) In deciding the dispute under Sub-Section (1), the authorised officer shall follow such procedure as may be prescribed.
Section 5:
Appeal: (1) Any person aggrieved by any decision or order of the authorised officer u/s 3-A or Section 3-B or Section 4 or Section 15-A may,
within such period as may be prescribed, appeal to the District Collector or such officer as may be specified by the Government in this behalf
(2) In deciding the appeal under Sub-Section (1), the District Collector or the officer referred to in Sub-Section (1) shall follow such procedure as
may be prescribed.
Sections 16 and 23 deals with the jurisdiction of the Civil Courts on the subject matter governed by the said Act.
Section 16 reads as follows:.
Transitional provision in regard to certain liabilities:
(1) All claims and liabilities enforceable in respect of the kudiyiruppu or the superstructure immediately before the date of the commencement of
this Act,; or the date, of vesting of such kudiyiruppu or the superstructure, as the case may be, against any person interested, shall, on or after that
date, be enforceable against the compensation payable to the person interested under this Act to the same extent to which such claims and
liabilities were enforceable against such person immediately before such date.
(2) No Court shall, on or after the date of commencement of this Act, or the date of vesting of such kidiyiruppu or the superstructure, as the case
may be, order or continue execution in respect of any decree or order passed against the person interested and execution shall be ordered or
continued in such cases in conformity with the provisions of Sub-Section (1) only as against the compensation payable to the person.
(3) No Court shall, in enforcing any claim or liability against the person interested in respect of any kudiyiruppu or superstructure, allow interest at
a rate exceeding six percent per annum simple interest for any period after the date of the commencement of this Act"".
Section 23 reads as follows:
Bar of jurisdiction of Civil Courts:
Save as otherwise expressly provided in this Act, no Civil Court shall have jurisdiction in respect of any matter which the Government are, or the
Authorised Officer is, empowered by or under this Act, to determine and no injunction shall be granted by any Court or other authority in respect
of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Section 27 deals with the rule making power of the Government, which reads as follows:
Power to make rules: 1 (1) The Government may make rules for carrying out all or any of the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for or ''regulate'':
(a) all matters expressly required or allowed by this Act to be prescribed;
(b) the fees payable in respect of any application or statement under this Act.
(3) Every rule made under this Act shall, as soon as possible after it is made, be placed on the tabled both Houses of Legislature, and it, before the
expiry of, the session in which it is so placed or the next session, both Houses agree in making any modification in any such rules or both Houses
agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so
however, that any such modification or annulment shall without prejudice to the validity of anything previously done under that rule"".
Note: Section 27(3) inserted by Tamil Nadu Act 35 of 1982.
Rule 3 relates to the filing of applications for settlement of dispute before the authorised officer and Rule 4 deals with the procedure to be
followed in deciding the dispute filed u/s of the Act and Rule 5 deals with the disposal of the appeals.
Rule 3 reads as follows:
Form of application for settlement of dispute:
Every application for the settlement of a dispute u/s 4 shall be in Form I and shall be made to the authorised officer having jurisdiction over the area
within a period of two months from the date on which the dispute arose:
Provided that the application may be received by the authorised officer after the period of two months aforesaid, if the authorised officer, for
reasons to be recorded in writing, is satisfied that the applicant had sufficient cause for not applying within that period"".
Rule 4: ""Procedure to be followed in deciding a dispute u/s 4:
(1) On receipt of an application under Rule 3: the authorised officer shall issue a notice to the applicant and all other persons interested in the
kudiyiruppu mentioned in the application, fixing a date for hearing and directing the persons interested to appear on the date specified therein and
make their representations. On the date fixed for hearing or on an other date to which the enquiry may be adjourned the authorised officer shall
hear the parties and pass orders with regard to the dispute.
(2) Every order passed under Sub-Rule (1) above shall be communicated to the parties concerned.
Rule S: ""Disposal of appeals u/s 5:
(1) Every appeal under Sub-Section 1 of Section 5 shall be in Form II and shall be accompanied by a certified copy of the order appealed against
and shall be made to the appellate authority within a period of ninety days from the date of receipt of the order appealed against:
Provided that the appellate authority may admit an appeal filed after the prescribed period if the appellate authority, for reasons to be recorded in
writing is satisfied that the appellant had sufficient cause for not filing the appeal within that period.
(2) On receipt of an appeal, the appellate authority shall issue a notice to the appellant, the respondent or respondents, as the case may be, fixing a
date for hearing and directing the parties to appear on the date specified therein and make their representations.
(3) On the date fixed for the hearing or on any date to which the hearing may be adjourned the appellate authority shall hear the parties and pass
orders modifying the order or allowing the appeal or dismissing or remanding it for fresh disposal in accordance with the direction issued by it.
(4) Every order passed by the appellate authority shall be communicated to the parties concerned.
A plain reading of Sections 3 and 4 together makes it clear that no period of limitation is prescribed for filing an application to decide a dispute
referred u/s 4 of the Act.
However, Rule 3, which is framed in the rule making powers conferred u/s 27 of the Act, contemplates that every application for the settlement
of disputes u/s 4 shall be made within two months from the date on which the dispute arose.
In the instant case, assuming several representations were made by the appellant to the revenue authorities, an application claiming benefits u/s
3 was preferred u/s 4 before the third respondent but the same is barred by limitation in view of Rule 3. It is in view of this factual position that the
learned single Judge allowed the writ petition observing that the question of limitation goes to the root of the jurisdiction and therefore remitted the
matter to the third respondent for fresh disposal to consider the question of limitation prescribed in Rule 3.
The decision of the learned single Judge will certainly hold good only if Rule 3 satisfies Section 27(2) of the Act. As per Section 27(2). the
government is empowered to make rules for carrying out all or any of the purposes of this Act, and such rules may provide for or regulate:
(a) all materials expressly required or allowed by the Act to be prescribed.
(b) the fee payable in respect of am application or settlement under the Act.
Rule 3, therefore, should satisfy the said two conditions (a) and (b) prescribed u/s 27(2) of the Act. In other words, the limitation prescribed in
Rule 3 should have the sanction of law expressly required or allowed u/s 4 of the Act. As already pointed out. Section 4 is absolutely silent with
regard to the period, within which, the application should be preferred before the Authorised Officer for raising the dispute u/s 4 of the Act and
therefore, even though Rule 3 was framed by the powers conferred u/s 27(1), the same does not satisfy the conditions'' contemplated u/s 27(2) of
the Act in so far as it is ultra vires Section 4.
Hence, the period of limitation, prescribed by Rule 3 being a period of limitation for procedural purpose, shall not take away the substantial
right conferred on the appellant to claim the benefit of Section 3 by filing an application u/s 4 of the Act.
The learned counsel for the appellant invited our attention to the decision in 198K TNLJ 43, wherein, Justice Sathiadev, (as he then was) held
as follows:
There is no provision in the Act which enables the Government to frame a rule prescribing a period of limitation for preferment of petition for grant
of patta. In AIR 1972 1935 (SC) , it has been held that unless specific power is conferred under the Act, by Subordinate legislation no period of
limitation could be prescribed for invoking a statutory right conferred on those who are entitled to avail of benefits under the Act. Therefore, when
an illegality had been committed by rejecting the petition filed by the petitioners for the grant of patta based on a rule which could not be operative,
the matter is now remitted to second respondent for fresh disposal on merits, because even the finding regarding the character of the petition lands
had been summarily considered without a proper analysis of the evidence adduced by parties
In 1972 S.C. 1935, the Apex Court has held as follows:
The question which directly confronts us is whether the power to prescribe periods of limitation for initiating proceedings before the Court is a
part of and is included in the power to prescribe ""the procedure to be followed in proceedings before such Courts"". The answer to this question
would involve the determination of the further question whether the law relating to limitation is procedural or substantive or partly procedural and
partly substantive. If it is procedural law does it make any difference whether it relates to the time of filing application for initiation of proceedings
before the Court or whether it relates to interlocutory applications or other statements filed before it after the initiation of such proceedings. The
contention on behalf of the appellant is that the law relating to limitation is merely procedural as such it makes no difference whether it relates to the
time of filing an application or it deals with the time for filing interlocutory applications or other statements. There is also it is submitted no indication
in the scheme of the Act that it is otherwise or that there is any impediment for the Government to prescribe under the rule making authority the
period of limitation for applications'' u/s 75(2). Before we consider the scheme of the Act, it may be necessary to examine the scope and ambit of
the term ""procedure"" as used in Section 96(1) (b).
The topic of procedure has been the subject of academic debate and scrutiny as well as of judicial decisions over a long period but in spite of it,
it has defied the formulation of a logical test or definition which enables us to determine and demarcate the bounds where procedural law ends and
substantive law begins, or in other words, it hardly facilitates us in distinguishing in a given case whether the subject of controversy concerns
procedural law or substantive law. The reason for this appears to be obvious, because substantive law deals with right and is fundamental while
procedure is concerned with legal process involving actions and remedies, which Salmond defines ''''as that branch of law which governs the
process of litigation"", or to put it in another way, substantive law is that which we enforce while procedure deals with rules by which we enforce it.
We are tempted in this regard to cite a picturesque aphorism of Therman Arnold when he says ""Substantive law is canonised procedure.
Procedure is unfrocked substantive law"". 45 H.L.J. 617 at p. 645.
The manner of this approach may be open to the criticism of having over simplified the distinction, but nonetheless this will enable us to grasp the
essential requisites of each of the concepts which at any rate ""has been found to be a workable concept to point out the real and valid difference
between the rules in which stability is of prime importance and those in which flexibility is a more important value."" American Jurisprudence- Vol.
51 (Second Edn. 695. Keeping these basic assumptions in view it will be appropriate to examine whether the topic of limitation belongs to the
Branch of procedural law or is outside it. If it is a part of the procedure whether the entire topic is covered by it or only a part of it and if so what
part of it and the tests for ascertaining them. The law of limitation appertains to remedies because the rule is that claims in respect of rights cannot
be entertained if not commenced within the time prescribed by the statute in respect of that right. Apart from Legislative action prescribing the time,
there is no period of limitation recognised under the general law and therefore any time fixed by the statute is necessarily to be arbitrary. A statute
prescribing limitation however does, not confer a right of action nor speaking generally does it confer on a person a right to relief which has been
barred by efflux of time prescribed by the law. The necessity for enacting periods of limitation is to ensure that actions are commenced within a
particular period firstly to assure the availability of evidence documentary, as well as oral, to enable the defendant to contest the claim against him;
secondly to give effect to the principle that law does not assist a person who is inactive and sleeps over his rights by allowing them when challenged
or disputed to remain dormant without asserting them in a Court of law,
The Apex Court, in S.T. Officer, Ponkunnam v. K.I. Abraham reported in AIR 1967 S.C. 1823 while interpreting the provisions, namely,
Sections 8 and 13 of the Central Sales Tax Act and Rule 6 of Central Sales Tax (Kerala Rules) 1957, has held as follows:
It was contended on behalf of the appellants that the assessee had not filed the declarations in form ''C'' before February 16, 1961 according to
the third proviso to Rule 6(1) and in view of the breach of this Rule the assessee was not entitled to take advantage of the lower rate of assessment
u/s 8(1) of the Act. The opposite view-point was put forward on behalf of the assessee and it was argued that the third proviso to Rule 6(1) was
ultra vires of Section 8(4) read with Section 13(4) (c) of the Act. The decision of the question at issue therefore depends on the construction of the
phrase ""in the prescribed manner"" in Sec. 8(4) read with Sec. 13(4) (c) of the Act. In our opinion the phrase ""in the prescribed manner"" occurring
in Sec. 8(4) of the Act only confers power on the rule-making authority to prescribe a rule stating what particulars are to be mentioned in the
prescribed form, the nature and value of the goods sold, the parties to whom they are sold, and to which authority the form is to be furnished. But
the phrase ""in the prescribed manner"" in Sec. 8(4) does not take in the time-element. In other words, the Section does not authorise the rule-
making authority to prescribe a time-limit within which the declaration is to be filed by the registered dealer. The view that we have taken is
supported by language of Sec. 13(4) (g) of the Act which states that the State Government may make rules for ""the time within which, the manner
in which and the authorities to whom any change in the ownership of any business or in the name, place or nature of any business carried on by any
dealer shall be furnished."" This makes it clear that the Legislature was conscious of the fact that the expression ""in the manner"" would denote only
the node in which an act was to be done, and if any time limit was to be prescribed for the doing of the act, specific words such as ""the time within
which''"" were also necessary to be put in the statute. In Stroud''s Judicial Dictionary it is said that the words ""manner and form"" refer only ""to the
mode in which the thing is to be done, and do not introduce anything from the Act referred to as to the hints which is to be done or the time for
doing it."" In Acraman v. Herniman, (1851) 117 ER 1164, the plaintiffs had become the assignees in bankruptcy proceedings against Garret who
had executed on March 4, 1850, a warrant of attorney to the defendant Herniman on the strength of which the latter had obtained a judgment
against him and sold his goods. A copy of the warrant of attorney was filed with the officer acting as Clerk of the dockets and judgments in the
Court of Queens'' Bench on March 11, 1850, but no affidavit of the time of execution of such warrant of attorney was filed at any time. Stat. 12
and 13 Vict.c.106 S. 136 provided that any warrant of attorney given by a trader to confess judgment in a personal action, not filed within twenty
one days after execution in the manner and form provided by Stat. 3 G.4, e.39 should be deemed fraudulent, null and void Section 1 of Stat. 3 G.
4, c.39 required that such warrant of attorney should be filed together with an affidavit at the time of execution thereof, within twenty one days of
the execution of the warrant of attorney. Section 2 provided that if, after twenty one days, the party giving such warrant of attorney shall be
declared a bankrupt, then, unless the warrant or a copy thereof shall have been filed as aforesaid within 21 days from the execution or unless
judgment shall have been signed or execution issued thereon within the same period, such warrant of attorney and the judgment and execution
thereon, shall be deemed fraudulent and void against the assignees. As already stated, judgment had been signed on March 11, 1850, i.e., within
twenty one days of the execution of the warrant of attorney, and it was contended on behalf of the defendant that the judgment was valid
notwithstanding the failure to file the affidavit as required by Section 1 of Stat. 3 G. 4, c.39. The argument was rejected and it was held by the
Queen''s Bench that the warrant of attorney and the judgment thereon were void as against the assignees in bankruptcy. In the course of his
Judgment, Lord Campbell C.J... observed as follows:
The enactment of Stat. 12 and 13 Viet. c.106. S. 136, is very plain and J cannot agree to put a forced construction upon it. The Legislature has
said there that any warrant of attorney given by a trader to confess judgment in a personal action, not filed within twenty one days after execution in
manner and form provided by Stat.3 G.4, c.39, shall be deemed fraudulent, null and void. The manner directed by that Act is, filing the warrant or
copy, with an affidavit of the time of execution. Here are a Judgment and execution on a warrant of attorney given by a trader, and the warrant
filed, but without an affidavit. The plain meaning of the late Act is that such a warrant shall be null and void against the assignees. The words ''in
manner and form"", refer only to the mode in which the thing is to be done, and do not introduce anything from the Act referred to as to the thing
which is to be done or the lime for doing it.
Similarly, the Apex Court, in B.B. & D. MFG. Co. v. E.S.I. Corp. reported in AIR 1972 SC 1941, while interpreting Rule 17 framed under
the Rule making powers conferred u/s 96(1) (b) of the Employees State Insurance Act 1948 has held as follows:
It appears to us that where the legislature clearly intends to provide specifically the period of limitation in respect of claims arising thereunder, it
cannot be considered to have left such matters in respect of claims under some similar provisions to be provided for by the rules to be made by the
Government under its delegated powers to prescribe the procedure to be followed in proceedings before such Court. What is sought to be
conferred is the power to make rules for regulating the procedure before the Insurance Court after an application has been filed and when it is
seized of the matter. That apart, the nature of the rule bars the claim itself and extinguished the right which is not within the pale of procedure. Rule
17 is of such a nature and is similar in terms to Section 80. There is no gainsaying the fact that if an employee does not file an application before the
Insurance Court within 12 months after the claim has become due or he is unable to satisfy the Insurance Court that there was a reasonable excuse
for him in not doing so, his right to receive payment of any benefit conferred by the Act is lost. Such a provision affects substantive rights and must
therefore be dealt with by the legislature itself and is not to be inferred from the rule making power conferred for regulating the procedure unless
that is specifically provided for. It was pointed out that in the Constitution also where the Supreme Court was authorised with the approval of the
President to make rules for regulating generally the practice and procedure of the Court, a specific power was given to it by Art. 145 to prescribe
limitation for entertaining appeals before it. It is therefore apparent that the legislature does not part with the power to prescribe limitation which it
jealously retains to itself unless it intends to do so in clear and unambiguous terms or by necessary intendment. The view taken by the Madhya
Pradesh, Madras, Punjab and Andhra Pradesh High Courts in the cases already referred to are in consonance with the view we have taken. In the
decision of the Punjab High Court, Dua, J. as he then was, expressed the view of the Full Bench with which Falshaw, C.J. and Mahajan, J.
agreed. After examining the provisions of the Act, he observed at page 170-171:
At this stage, I consider it appropriate to point out what is fairly well recognised that what is necessarily or clearly implied in a statute is as effectual
as that, which is expressed because it often speaks as plainly by necessary inference as in any other manner. The purposes and aims of an Act as
discernible from its statutory scheme are accordingly important guide-posts in discovering the true legislative intent. One who considers only the
letter of an enactment goes but skin deep into its true meaning to be false to fathom the real statutory intent it is always helpful to inquire into the
object intended to be accomplished.
Considering the entire scheme of the Act before us, it is quite clear that fixation of any period of limitation for the Corporation to realise the
contributions from the employer may tend seriously to obstruct the effective working and enforcement of the scheme of insurance.
In fact, P. Thirumoorthy v. State reported in 1969 Madras 91 in which, Justice Venkatadri has held as follows:
There is much force in the contention of the learned counsel for the petitioner that prescribing period of limitation for refund under Rule 23(3) (i) is
not valid and should be declared ultra vires, because the main Act does not prescribe any period of limitation. The words used are ""shall be
refunded"" and there is no period of limitation prescribed
That apart, Section 5 of the Act indicates that the government may prescribe the period within which, an appeal shall lie to the District
Collector. But no such indication is provided u/s 4 of the Act. Therefore, any limitation of period for filing an application u/s 4 of the Act is
impliedly excluded in Section 4 even though the same is indicated for filing an appeal u/s 5 of the Act as rightly pointed out by the learned counsel
for the petitioner.
In this connection, it is relevant to refer to the decision of the Division Bench of Patna High Court in Jugsalai Electric Supply Co. Vs. The State
of Bihar and Another, , wherein, it is held as follows:
On a proper construction of Section 9-A(3) of the Act I find it difficult to accept the above contention. The expression ""subject to such rules as
may be prescribed"" used in Sub-Section (3) of Section 9-A is of wide amplitude. ""Subject to"" in the context means ""conditional upon"". The power
of the prescribed authority to revise an order passed under the Act or the Rules made thereunder, therefore, is conditional upon such rules as may
be prescribed. On a plain reading of Sub-Section (�) of Section 9-A of the Act, I am of the view that the Legislature by using the expression
subject to such rules as may be prescribed"" in Sub-Section (3) of Section 9-A has left it to the rule making authority to make rules in respect of all
matters pertaining to revision for which no specific provision has been made in the Act. Neither Sub-Section (3) of Section 9-A nor any other
Section of the Act prescribes limitation for filing a revision before the prescribed authority. Section 10(2) (f) of the Act empowers the State
Government to make rules for ""any other matter for which there is no provision or insufficient provision in this Act for which provision is in the
opinion of the State Government necessary for giving effect to the purposes of this Act."" This State Government was, therefore, quite competent to
make rules prescribing limitation for filing a revisional application by virtue of the powers conferred upon it by Section 10(2)(f) read with Section
9-A(3) of the Act.
In course of his argument, Mr. Jain referred to three cases, namely, the case of the Regional Director, Govt. of India, N.G. Iyer 1971 Pat LJR
619=1972 Lab IC 784 , the case of J.A. Kareem Sait Vs. The Deputy Commercial Tax Officer, Mettupalayam, and the case of P. Thirumurthi
Chettiar Vs. State of Madras and Another, . In the case of the Regional Director, Government of India, Rule 17 of the Bihar Employees Insurance
Courts Rules, 1952 was held and declared to be ultra vires. The rule had been made by the State Government in exercise of the power conferred
upon it by clause (b) of Sub-Section (1) of Section 96 of the Employees State Insurance Act, 1948. Cl.(b) of Section 96(1) conferred power on
the State Government to make rules with regard to ""the procedure to be followed in proceedings before such Courts, and the execution of orders
made by such Courts."" A Bench of this Court agreeing with the views of Madras. Punjab and Bombay High Courts held that the expression
procedure to be followed"" in Section 96(1) (b) of the Act was of narrower import and could not be construed to mean to confer a power on the
rulemaking authority to prescribe limitation for institution of proceedings. It was observed in that case that ""where an Act itself does not provide for
limitation with reference to a particular matter and the delegation of power to make rules is conferred by a Section of the Act which does not
expressly or impliedly relate to the power to prescribe time, the authority to which the power is delegated, namely, the State, cannot make a rule
prescribing limitation."" In my opinion, the decision in the case referred to above, does not in any way support the contention which has been raised
by learned counsel appearing for the petitioner. On the contrary, certain observations made in that case support the view which I have taken on the
question of interpretation of the expression ""subject to such rules as may be prescribed."" In that case, it was observed as follows:
The provisions of Section 75 have not been made subject to any rule made by the Suite Government. This also shows that it was not the intention
of the legislature to vest the rule-making authority with power to make rules prescribing limitation for applications u/s 75 of the Act.
In the case of Haji, J. A. Kareem Sail, a Bench of the Madras High Court held that sub-Rule (7) of Rule 5 of the Central Sales Tax (Madras)
Rules. 1957 in so far as it provided for limitation and determination of escaped turnover by best judgment, was invalid. Reliance was placed on
Sub-Section (3) of Section 13 of the Central Sales Tax Act, 1956 on behalf of the revenue in sustain Sub-Rule (7). That was however not
accepted and the following observation was made:
But Section 13(3) is in general terms and confers power to make rules only to carry out the purposes of the Act. Nowhere in the Central Act is
there any indication that one of its purposes is to provide for limitation for the exercise of the power to assess escaped turnover and to deter such
turnover by best judgment. We hold that Sub-Rule (7) at least in so far as it provided for limitation and determination of escaped turnover by best
judgment is in excess of the rule-making power and the Sub-rule, as a whole, should be struck down as invalid.
The Madras case, in my opinion, is also not of any help to the petitioner inasmuch as the question involved in that case was altogether of a different
nature.
In P. Thirumurthi Chettiar''s Case Rule 23(3)(i) of the Madras General Sales Tax Rules, 1959, which prescribed a period of limitation for
refund, was held to be invalid and ultra vires the powers of the State Government. In that case, the learned single Judge of the Madras High Court,
on construing the words ""the lax so levied shall be refunded to such person in such manner and subject to such condition as may be prescribed
used in the proviso to Section 4 of the Madras General Sales Tax Act, took the view that the proviso neither expressly nor impliedly related to the
power of prescribing time and as such the State could not make a rule prescribing limitation. As the words used in the proviso to Section 4 of the
Madras General Sales Tax Act are not similar to the words used in Section 9-A(3) of Bihar Act, the view taken by the learned Judge of the
Madras High Court cannot be said to be contrary to the view which L have taken on the interpretation of the expression ""subject to such Rules as
may be prescribed"" used in Sub-Section (3) of Section 9-A of the Act under Sec. 9A(3) of the Act though the power to make rule prescribing
limitation for revision has not been expressly conferred as u/s 9-A(1) of the Act to make rule prescribing limitation for appeal, the Legislature by
using the expression ""subject to such rules as may be prescribed"" in Sub-Section (3) of Section 9-A has impliedly conferred power on the rule-
making authority to make rules prescribing limitation for revision.
In the process of testing rule 3 with reference to Section 27(2) and Section 4 of the Act, we are also obliged to test Rule 3 in the light of
Section 27(3) which provides for tabling the rules before the Houses of Legislature, to sustain the rules as though the rules made u/s 27 of the Act
shall have the same force of law as enacted by the legislature itself.
The law as laid down by the Apex Court in this regard is reported in Hukam Chand etc. Vs. Union of India (UOI) and Others, wherein it is
held as follows:
Rules have been framed by the Central Government in exercise of the powers conferred by Section 40 of the Act. According to Sub-Section
(1) of that Section, the Central Government may, by notification in the official gazette, make rules to carry out the purposes of the Act. Sub-
Section (2) mentions the matters in respect of which the rules may make provisions without prejudice to the generality of the power conferred by
Sub-Section (1). Sub-Section (3) reads as under:
3) Every rule made under this Section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a
period of thirty days which may be comprised in one session or in two successive sessions and if before the expiry of the session in which it is so
laid or the session immediately following both Houses agree in making any modification in the rule, or both Houses agree that the rule should not be
made the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification
or annulment shall be without prejudice to the validity of anything previously done under that rule.
Perusal of Section 40 shows that although the power of making rules to carry out the purposes of the Act has been conferred upon the Central
Government, there is no provision in the Section which may either expressly or by necessary implication show that the Central Government has
been vested with power to make rules with retrospective effect. As it is Section 40 of the Act which empowers the Central Government to make
rules, the rules would have to conform to that Section. This extent and amplitude of the Rule making power would depend upon and be governed
by the language of the Section. If a particular rule were not to fall within the ambit and purview of the Section, the Central Government in such an
event would have no power to make that rule I likewise, if there was nothing in the language of S. 40 to empower the Central Government either
expressly or by necessary implication, to make a rule retroactively, the Central Government would be acting to excess of its power if it gave
retrospective effect to any rule. The underlying principle is that unlike Sovereign Legislature which has power to enact laws with retrospective
operation, authority vested with the power of making subordinate legislation has to act within the limits of its power and cannot transgress the
same. The initial difference between subordinate legislation and the, statute laws lies in the fact that a subordinate law making body is bound by the
terms of its delegated or derived authority and that Court of law, as a general rule, will not give effect to the rules, thus, made, unless satisfied that
all the conditions precedent to the validity of the rules have been fulfilled (see Craies on Statute Law, p. 297, Sixth Edition).
The fact mat the rules framed under the Act have to be laid before each House of Parliament would not confer validity on a Rule if it is made
not in conformity with Sec. 40 of the Act. It would appear from the observations on pages 304 to 306 of the Sixth Edition of Craies on Statute
Law that there are three kinds of laying:
(i) Laying without further procedure.
(ii) Laying subject to negative resolution
(iii) Laying subject to affirmative resolution.
The laying referred to in Sub-Sec. (3) of Section 40 is of the second category because the above Sub-Section contemplates that the rule would
have effect unless modified or annulled by the Houses of Parliament. The act of the Central Government in laying the rules before each House of
Parliament would not, however, prevent the Courts from scrutinizing the validity of the rules and holding them to be ultra vires if on such scrutiny
the rules are found to be beyond the rule making power of the Central Government.
The Apex Court, again in K.S.E. Board v. Indian Aluminium Co. reported in 1976 S.C. 1031 has held as follows:
The question still remains whether when a declaration is made u/s 2(a) of the Act declaring an article as an essential article or an order is made
under Sec. 3 such a declaration or order becomes part of the Act? In England even where an Act declares that subsidiary legislation shall have
effect as if enacted in the Act it does not preclude the Court from calling in question the subsidiary legislation where it is inconsistent with the
provisions of the Act (Minister of Health v. The King, 1931 AC.494). But it would appear that where the statute provides for the laying of the
rules before Parliament and the Parliament could have annulled them, such a provision would make the subordinate legislation beyond challenge
(Institute of Patent Agents v. Lockwood, 1894 AC 347), In India many statutes both of Parliament and of State Legislatures provide for
subordinate legislation made under the provisions of those statutes to be placed on the table of either the Parliament or the State legislature and to
be subject to such modification, amendment or annulment, as the case may be, as may be made by the Parliament or the State Legislature. Even
so, we do not think that where an executive authority is given power to frame subordinate legislation within stated limits, rules made by such
authority if outside the scope of the rule making power should be deemed to be valid merely because such rules have been placed before the
legislature and are subject to such modification, amendment, or annulment, as the case may be, as the legislature may think fit. The process of such
amendment, modification or annulment is not the same as the process of legislation and in particular, it lacks the assent either of the President or the
Governor of the State, as the case may be. We are, therefore, of opinion that the correct view is that notwithstanding the subordinate legislation
being laid on the table of the House of Parliament or the State Legislature and being subject to such modification, annulment or amendment as they
may make, the subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided in the statute.
What happens then to a declaration made u/s 2(a) or an order made u/s, If such a declaration or order is not within the scope of the Act, if
should be held to be not valid Does the subsequent assent of the President to an Amending Act, which as we have shown earlier in effect amounts
to an assent to the whole Act. cure this defect ? We consider that the declaration itself can still be attacked if the power to make such a declaration
is beyond the scope of the power delegated. Whether the power delegated can be attacked on the ground of excessive delegation of the legislative
powers or on the ground that in so conferring the legislative power on the executive authority the legislature has abdicated its function or the
legislature itself could not have made such a law to a different question. There is a slight difference between such a situation and the one where it is
held that the declaration is beyond the scope of the Act. That electricity is an essential article and therefore the 1965 declaration u/s 2(a) declaring
electricity as an essential article is valid cannot be disputed. It is not disputed that an article which is not in fact an essential article cannot be
declared to be an essential article.
In Regional Transport Officer, Chittoor and Others Vs. Associated Transport Madras (P) Ltd. and Others, , the Supreme Court, dealing with
the tabling procedure, has held as follows:
The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to
the constitutional limitations. But it is trite law that a delegate cannot exercise the same power unless there is special conferment thereof to be
spelled out from the express words of the delegation or by compelling implication. In the present case, the power under Sec. 4(1) does not
indicate either alternative. The position has been considered by the High Court at length and there is no need for us to go through the exercise over
again. Indeed, considerable reliance was placed by learned counsel for the appellant on two circumstances. Me argued that the impugned rule was
framed in pursuance of a resolution passed by the legislature. The fact does not have any bearing on the question under consideration except for us
to make the observation that the State Government should have been more careful in giving effect to the resolution and should not have relied upon
its delegated power which did not carry with it the power to make retrospective rules. The second ground pressed before us by learned counsel
for the appellant is that the rules had to be placed on the table of and approved by the legislature This was sufficient indication, in his submission,
for us to infer that retrospectivity in the rule-making power was implicit. We cannot agree. The mere fact that the rules framed had to be placed on
the table of the legislature was not enough, in the absence of a wider power in the Section, to enable the State Government to make retrospective
rules. The whole purpose of laying on the table of the legislature the rules framed by the State Government is different and the effect of anyone of
the three alternative modes of so placing the rules has been explained by this Court in Hukam Chand etc. Vs. Union of India (UOI) and Others, .
In Asst. Collector, Central Excise v. Ms. Ramakrishnan Kulwant Rai reported in AIR 1989 S.C. 1829. the Apex Court has held as follows:
It is an accepted principle that delegated authority must be exercised strictly within the limits of the authority. If rule making power is conferred
and the rules made are in excess of that power the rules would be void even if the Act provided that they shall have effect as though enacted in the
Act as was ruled in State of Kerala Vs. K.M. Charia Abdullah and Co., . Therein, the High Court having declared R. 14-A of the Madras General
Sales Tax Rules, 1939 as ultra vires, on appeal, this Court by majority held that the validity of the rule, even though it was directed to have effect
as if enacted in the Act, was always open to challenge on the ground that it was unauthorised The validity of the delegated legislation is generally a
question of vires, that is, whether or not the enabling power has been exceeded or otherwise wrongfully exercised.
It is therefore well settled in law that mere compliance of tabling procedure contemplated u/s 27(3) of the Act by itself will not validate Rule 3
as it falls outside the scope of Section 4 of the Act.
For all these reasons, we are obliged to hold that Rule 3 ultra vires Section 4 of the Act. Point No. 2: We are obliged to refer R. Veerappan v.
Shanmugavelu reported in 1981 (2) MLJ.366=94 L.W.741 wherein it is held as follows:
Section 3(B) is quite clear and indeed emphatic that the issues involved in the case shall be tried by the Authorised Officer, while Section 23
bars the jurisdiction of the Civil Court in respect of such matters which the Authorised Officer is specifically empowered to determine. It is,
therefore, apparent that the combined effect of these provisions is that in the field exclusively earmarked for the Authorised Officer, the Civil
Court''s jurisdiction is taken away. Further, a reference to Section 5 of the Act will disclose that it provides an appeal to the District Collector or
such officer as may be specified by the Government in this behalf against the decision of the Authorised Officer made u/s 3(B) of the Act. This will
also affirm my above view that the questions to be determined by the Authorised Officer u/s 3(B) are within his exclusive jurisdiction.
In Kalyanasundaram Udayar v. Pazhaniayya Udayar reported in AIR 1983 Madras 86=0982 95 L.W.56 the Division Bench of this Court has
held as follows:
We have to interpret Sec. 23 of the Act in the light of the Full Bench decision referred to above. Since Sec. 23 bars the jurisdiction of the Civil
Court in respect of any matter which the Authorised Officer constituted under the Act has to decide, in this case, the question whether any
agriculturist or agricultural labourer is in possession of Kudiyiruppu has necessarily to be decided under Sec. 4 of the Act by the Authorised
Officer. A conjoint reading of Sec. 4 and Sec. 23 of the Act indicates that if an agriculturist or agricultural labourer raises a dispute that he is in
possession of Kudiyiruppu on the relevant date, he has to approach the Authorised Officer concerned for a decision on that point and cannot go
before a Civil Court.
However, situations may arise when one party proceeds on the basis that the Act does not apply to a particular piece of land, but the other
parry comes forward with a case that he is entitled to the benefits of the Act in relation to that land. Such was the case before N.S. Ramaswami S.
in Ganesan v. Madurai Achari (1978) 91 Mad L.W.6. In that case, the plaintiff came forward with a suit for recovery of possession of the suit
property from the defendant and the defendant contended that he is an agriculturist in possession of the suit land as Kudiyiruppu and therefore he
cannot be evicted from the suit land. The learned Judge held that the question whether a person is an agriculturist or an agricultural labour is under
Sec. 4 left to be decided by the Civil Court though the further question whether such an agriculturist or an agricultural labourer is occupying the
Kudiyiruppu on the relevant date and as such entitled to the benefits of the Act has necessarily to go before the authorised officer concerned and
the Civil Court will have no jurisdiction to decide the dispute. We are of the view that on the facts, the judgment in Ganesan v. Madurai Achari
(1978) 91 Mad LW.6, cannot be construed as holding that in spite of Sec. 23 of the Act, the Civil Court will have jurisdiction to decide the
dispute contemplated by Sec. 4. According to the learned Judge, where a plaintiff files a suit for recovery of possession of a certain property
presumably on the basis that the Tamil Nadu Act 40 of 1971 does not come into play and the defendant by way of defence raises the plea that the
suit land is covered by that Act and therefore he is entitled to the benefits of the said Act, the Court cannot dismiss the suit merely on the basis of
the defence unless the Court finds the defence put forward has been prima facie established. However, the learned Judge in that case directed a
decree for possession to be passed subject to the rights of the defendant under the Act. It is in the light of the said decision the lower Appellate
Court had passed a decree for possession in this case.
Thangavelu Naicker Vs. Muthukumara Chettiar and Another, was a case where the plaintiff came forward with a suit for injunction asserting
that he is an agriculturist in possession of Kudiyiruppu and as such his possession should be protected by the issue of an injunction. Such a suit was
rightly held to be barred by Sec. 23 of the Act, as the plaintiff himself seeks a decision from the Civil Court that he is an agriculturist in possession
of Kudiyiruppu. On the facts of the respective cases, the said two decisions have to be taken as rightly decided and there is no conflict at all
between them as both of them lay down that the Civil Court''s jurisdiction is ousted by Sec. 23 of the Act in respect of disputes coming under Sec.
4 of the Act. However, we are of the view that the direction given by N.S. Ramaswami, J., in Ganesan v. Madurai Achari, (1978) 91 Mad LW.6
to grant a decree for possess on to the plaintiff subject to the defendant''s rights under the Act has no legal basis. Such a direction cannot be validly
granted, for, there is no provision in the Tamil Nadu Act 40 of 1971 similar to Sec. 10of the Tamil Nadu Buildings (Lease and Rent Control) Act
1969 or Sec. 3 of the Tamil Nadu Cultivating Tenants Protection Act, 1955, wherein, it is stated that notwithstanding any decree of Court, the
tenant cannot be evicted from the premises except in accordance with the provisions of the relative Acts. In the absence of any such provision in
the Act, there is no method or manner by which the defendant could approach the Authorised Officer to get over the Civil Court''s decree for
possession and as the decree passed by the Civil Court can immediately be put into execution he will be evicted from the Kudiyiruppu
notwithstanding his rights under the Act. Further, such a decree for possession will be inconsistent with or defeat the provisions of the Act which is
intended to confer certain benefit on persons occupying Kudiyiruppu.
We are, therefore, of the view that the lower Appellate Court is in error in passing a decree for possession against the defendant which is
capable of being executed straightway without reference to the provisions of the Act. Such a direction is also inconsistent with the findings
rendered by the trial Court and affirmed by the lower Appellate Court that the defendant is entitled to the benefits of the Act. Having held that the
defendant is entitled to the benefits of the Act, if the Civil Court were to pass a decree for possession, that would be completely defeating the
provisions of the said Act. In this view of the matter, we set aside the decision of the lower Appellate Court and restore the decision of the trial
Court. It is, however, made clear that the plaintiff, if so advised, can approach the authorities concerned under the Act for any relief as against the
defendant under the provisions of the Act.
Our attention was also drawn by the learned counsel for the first respondent to the decision in Ammayappan Vs. The Additional Collector in-
charge and Collector and Others, , wherein Nainar Sundaram, J. (as he then was) has held as follows:
3 Mr. G. Subramaniam, learned counsel for the petitioner, would submit that the status of a tenant claimed by the petitioner can certainly be gone
into and adjudicated upon by the Civil Court as an incidental issue, if not a jurisdictional one, for the purpose of granting the relief of injunction to
protect possession and if such a decision has been rendered by the Civil Court anterior to the decision by the authorities under the Act, the latter
must certainly take note of that and they cannot ignore the same, as done by the first respondent. In this connection, he, places reliance on a
pronouncement of this Court in Palaniswami Gounder v. Chellammal. There, I have expressed the view that the decision on relevant issues by the
Civil Court rendered anterior to the decision by the authorities under the Act has got relevancy and cannot be eschewed as irrelevant by the
authorities under the Act. I have taken note of the view of the Bench of this Court to which I had been a party, in Balasubramanian v. Shaksu
Thalrees, which view ran as follows:
It would be a different matter if the matter had gone to the Civil Court and a decision had been rendered by the Civil Court on those questions
anterior to the decision of the authority under the Act and the Civil Court thereby holding that the lease in favour of the first defendant by the
second defendant could not be legally sustained and has got to be ignored in the eye of law. The Civil Court can certainly go into these
jurisdictional issues, which are not within the exclusive jurisdiction of the authority under the Act. But, such is not the case here.
It is true that the above decisions dealt with cases, where jurisdictional issues were involved. But in Periathambi Gounder v. District Revenue
Officer, a Full Bench of this Court dealt with a case where anterior to final orders under the Act, there had been a decree and that too an ex parte
one, in a suit for a bare injunction on the claim that the plaintiff was in possession of the lands in question as a cultivating tenant. The Full Bench
held that the jurisdiction of the Civil Court to go into the question incidentally as to whether the plaintiff was in possession as a cultivating tenant in
the suit for bare injunction is not ousted and such a decision of the Civil Court, rendered anterior to the final orders of the authorities under the Act
was relevant fact and had a great and a definite bearing on the question as to whether the person was a cultivating tenant, and since the decision of
the Civil Court was not at all taken into account by the authority in that case, the Full Bench remitted the matter back to the authority concerned.
Here, the Civil Court''s proceedings have been admitted as additional evidence before the second respondent, and the second respondent upheld
the case of the petitioner. The first respondent''s view that the decision in the Civil suit cannot be taken note of, on the question of status of a
tenant, is unsustainable, in view of the pronouncements of this Court. No other tenable reason has been assigned by the first respondent for
ignoring the decision of the Civil Court. Here, anterior to the decision of the third respondent, the Civil Court has rendered a finding on the question
as to the status of a tenant claimed by the petitioner in his favour, and that is not without jurisdiction, and certainly that will bind the authorities
under the Act and it will not be proper for them to ignore the same. In this view, I am not able to support the order of the first respondent when he
chose to reverse the order of the second respondent and restore the order of the third respondent. Accordingly the writ petition is allowed and the
order of the first respondent impugned in this writ petition is quashed. The result is the order of the second respondent shall stand restored. No
costs.
But in the light of the decisions:
(i) Veerappan v. Shanmugavelu reported in 1981 (II) MLJ 366 =94 L.W.741;and
(ii) (Kalyanasundaram Udayar v. Pazhaaniayya Udayar) reported in AIR 1983 Madras 86=95 L.W.56;
we are satisfied that the second and the third respondents have rightly held that the decree and the judgment of the Civil Court, even though may
have evidential value, should not be taken as conclusive evidence for deciding the dispute referred u/s 4 of the Act and we therefore do not find
any just and valid reason to interfere with the findings of the respondent that are arrived at after considering all relevant evidences on record in
granting relief to the appellant by the impugned proceedings dated 21.11.80 and 10.8.91. Hence there is no justification in remitting the matter
again to the third respondent for holding a fresh enquiry. In view of the reasons stated above, we are obliged to allow the Writ Appeal and set
aside the order of the learned single Judge dated 3.1.90 and consequently dismiss the writ petition as devoid of merit and want of legal contention
refusing to interfere with the impugned proceedings of the third respondent dated 21.11.80 and the second respondent dated 10.8.91. However,
there will be no orders as to costs.