Lakshmikutty Amma vs Ramakrishnan

Velu Filial, J.—The appellant sued the respondent for the realisation of rent due for the year 1133 M. E. corresponding to 1957-58 under a lease. Her case was, that the property had been outstanding on lease with the respondent on a lease of the year 1127 M. E. corresponding to 1951-52, at an annual rent of 21 parahs of paddy, and that from the year 1130 M. E. corresponding to 1954-55, the rent was enhanced by agreement to 35 parahs of paddy per annum. The respondent contended that the original lease was of the year 1122 M. E. corresponding to 1946-47, at an annual rent of 10 parahs of paddy which was afterwards enhanced to 14 parahs and that he had been paying accordingly. The two courts have found the lease of the year 1127, and the enhancement of rent from the year 1130, to be true; but while the Munsiff decreed the appellant''s claim in full the District Judge on appeal, decreed the claim only at the rate of 21 parahs of paddy. The enhancement of rent to 35 parahs in the year 1130 was in consequence of additional irrigation facilities becoming available from the Malampuzha reservoir. For refusing to give a decree at the enhanced rate, the District Judge relied on section 14 of the Malabar Irrigation Works (Construction and Levy of Cess) Act, Act VII of 1947, which is in the following terms:

Save as provided in the Malabar Tenancy Act, 1929, any increase in the yield of the land or in the extent of land cultivated by reason of the supply of water from any irrigation work shall not entitle a landlord as defined in that Act to claim any enhancement of the rent payable to him or (ii) be taken into account in determining ''fair rent* under that Act"

The Judge held that this amounted to a prohibition against any enhancement of rent on this account, whether contractual or otherwise, and that therefore the contract to pay the enhanced rent was not legally enforceable. On plain reading it seems to me, that the bar u/s 14 is against the landlord seeking the help of the court for relief by way of enhancing the rent payable and against the Rent Court taking the ground specified into consideration for fixing the fair rent; the object of the Section is not to prohibit the making of a contract for enhanced rent. This seems to follow from the words "shall not entitle a landlord...to claim any enhancement of the rent payable to him". A somewhat analogous case is reported in Ukkali v. Krishna Iyer (1961 K. L. J. 854).

However, in the Section itself, there is a saving of the provisions of the Malabar Tenancy Act, 1929, which are therefore left unaffected. If the appellant''s claim is well-founded on the provisions of that Act, that is to say, if the freedom of contract in this respect is recognised by the Act, the bar u/s 14 aforesaid does not come into play. So to read and understand section 14 is not, as contended for the respondent, to violate any canon of interpreting the proviso to a Section. That canon is couched thus by Maxwell in his work on Interpretation of Statutes, 10th Edition, page 162:

The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on'' the rest.

The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together, is to prevail.

In Tahsildar Singh and Another Vs. The State of Uttar Pradesh, the Supreme Court endorsing the above observed thus:

Unless the words are clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. To put it in other words, a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two.

I am clear in my mind that my reading of Section 14 does not offend these principles. It was suggested, that the saving made by Section 14 was only of enhancement of rent on other grounds, recognised or sanctioned by the provisions of the Malabar Tenancy Act, 1929, that is, grounds other than additional irrigation facilities becoming available; but counsel for the respondent was unable to point to any such provision in the Act. In my judgment, the intendment of Section 14 is to defeat a claim for enhancement when it has no other basis than that additional irrigation facilities became available, and not when it falls squarely within any of the provisions of the Malabar Tenancy Act.

This leads to a consideration of the relevant provisions in the Malabar Tenancy Act, 1929. That Act was amended by Madras Act XXXIII of 1951 and afterwards by Madras Act VII of 1954. The Act as amended in 1951 was in force at the time of the lease of the year 1127 and the Act as amended in 1954 was in force at the time of the lease of the year 1130. The relevant part of Section 28 as it was amended by Act VII of 1954, was as follows :-

Every Cultivating tenant of a holding other than...shall be bound to pay to his landlord-

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(d) in case no fair rent has been fixed as aforesaid, the rent payable according to the contract, express or implied between the parties:

The material part of Section 28 as amended in the year 1951, was as follows:

(1) Every cultivating tenant of a holding other than..............shall be bound to pay fair rent to his landlord:

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(2) Notwithstanding anything contained in sub-section (1) until the determination of the fair rent..............every tenant referred to in sub-section (1) shall pay to his landlord..............the contract rent...

Before the amendment of 1951, section 28 so far as it is relevant, read as follows:

Every cultivating verumpattamdar shall be bound to pay to the immediate landlord, fair rent as fixed u/s 12:

Based on these provisions, counsel for the respondent contended, that what were saved were the provisions of the Malabar Tenancy Act as it was in force at the time Act VII of 1947 aforesaid was enacted, which did not take in the contract rent, though that Act as amended in 1951 took in such rent subject to a condition and as amended in 1954 without any condition. This depends on the effect of an amendment in a statute which is cited or referred to in another enactment so far as the latter is concerned. As observed by the Supreme Court in The The Collector of Customs, Madras Vs. Nathella Sampathu Chetty and Another, there is a "distinction between a mere reference to or a citation of one statute in another and an incorporation which in effect means the bodily lifting of the provisions of one enactment and making it part of another so much so that the repeal of the former leaves the latter wholly untouched. In the case, however, of a reference to or a citation of one enactment by another without incorporation, the effect of a repeal of the one ''referred to'' is that set out in Section 8(1) of the General Clauses Act". Here in Section 14, there is a reference to or citation of the provisions of the Malabar Tenancy Act relating to rent, but there is not an incorporation of the whole Act in the other; this was not contested. The effect of the amendment of the Malabar Tenancy Act must then be judged by Section 18 of the Madras General Clauses Act, 1891, the relevant part of which is as follows :

Where an act repeals and re-enacts, with or without modification, all or any of the provisions of a former Act, references in any other Act to the provisions so repealed shall be construed as a references to the provisions so re-enacted...

Thus, in the year 1130 M. E. corresponding to 1954-55, Section 28 as amended by Act VII of 1954 was saved by Section 14 of Act VII of 1947; in other words, the right of the landlord to recover the contract rent was saved. This, answers the contention based on Section 14.

Learned counsel for the respondent next contented that the amendment of 1954 cannot have a retrospective operation. The rent sued for was for the period after the amendment of 1954. Even on the date of the first lease, the Act as amended in 1951 had provided for the contract rent. In my view the provisions of the amendments must be held to apply to rent payable from the dates on which they took effect. The object of the amendment was also to regulate the rent payable thereafter. In this view the contention has no force. There is no merit in the cros-objection filed which is dismissed, but without costs. In second appeal, the decree of the District Judge reducing the amount of rent is set aside and the decree of the Munsiff is restored with costs in this court and in the court below, to the plaintiff-appellant.