M.P.S. Al. Alagappa Chettiar vs Nachiappa Chettiar

This case has given me some difficulty mainly because of an omnibus application of a set of laws in force in a particular State to another State

which had its own set of corresponding laws differing in material particulars, without any attempt to make necessary amendments and alterations.

There is no dispute as to the facts. The appellant is one of the judgment-debtors and the respondent is the decree-holder in O. S. No. 341 of

1944 on the file of the Chief Court of Pudukottai which was a suit to recover the amount due in respect of three deposits. The decree was passed

on 31-3-1945. On behalf of the defendants, a plea was raised that they would be entitled to relief under the provisions of the Pudukottai

Agriculturists'' Relief Regulations 15 of 1938. The Court held that the defendants could not be considered to be agriculturists and rejected the plea.

There was an appeal by the defendants which was dismissed. The particular plea under the above Regulation was not pressed before the appellate

court. In 1947, the State of Pudukottai was merged in British India and thereafter began to be administered as part of the Province of Madras.

Nevertheless, the laws in force in that State continued in force until eventually the Madras Merged States (Laws) Act 35 of 1949 was passed by

which certain Acts both of the Central Legislature and of Madras were made applicable to the territory which was once Pudukottai State from 1-

1-1950 and the corresponding laws of the Pudukottai State were repealed. It is necessary to refer to the following Sections of this Act :

So much of the enactments specified in the First Schedule as extends to the Province of Madras and relates to matters with respect to which

the Provincial Legislature has power to make laws for the Province, is hereby extended to, and shall be in force, in, the merged State of States

specified in the corresponding entry in the first column thereof.

If, immediately before the commencement of this Act, there is in force in any merged State, an Act, Ordinance, Regulation or other law

corresponding to an enactment specified in the First Schedule, whether such Act, ordinance, regulation or other law is in force by virtue of an

Order under the Extra Provincial Jurisdiction Act, 1947, or by virtue of any other legislative power, such corresponding law shall, upon the

commencement of this Act, stand repealed to the extent to which the law relates to matters with respect to which the Provincial Legislature has

power to make laws for the Province.

One of the enactments mentioned in the schedule is Madras Act 4 of 1938, the Madras Agriculturists'' Relief Act.

The decree in O. S. No. 341 of 1944 was being executed by means of successive petitions, the last of which was E. P. No. 274 of 1950. The

appellant before us, who was impleaded as the seventh defendant on the death of his father, the first defendant filed an application, E. A. No. 1152

of 1950 in the court of the Subordinate Judge Of Pudukottai u/s 20 of the Madras Agriculturists'' Relief Act for stay of execution proceedings in E.

P. No. 274 of 1950 to enable him to file an application u/s 19 of that Act. The respondent-decree-holder opposed the application ''inter alia'' en

the ground that the application was incompetent and misconceived. The learned Subordinate Judge held that the Madras Agriculturists'' Relief Act

was not applicable to the case and dismissed the application with costs, without going into the merits. His decision was based mainly on the saving

provisions contained in clause (a), of Section 6(1) of the Merged States Act, which runs thus :

The repeal by Section 5 of this Act of any corresponding law in force in any merged State immediately before the commencement of this Act shall

not affect

(a) the previous operation of any such law.

He held inasmuch as the debt in question had already been dealt with in the suit under the Pudukottai Regulation, it was a case in which the

previous law had operated and determined the rights of parties and the new Act was not intended to affect transactions already dealt with under

the previous corresponding law. The appeal is against this decision of the Subordinate Judge.

It was contended on behalf of the appellant that u/s 3 of the Merged States Act the Madras Agriculturists Relief Act came into force in

Pudukottai on 1st January 1950 and simultaneously the corresponding Pudukottai Regulation stood repealed u/s 5 of the Act, and therefore on and

after 1st January 1950 the appellant could claim relief under Madras Act 4 of 1938. Section 6(1)(a) of the Merged States Act, he further

contended, had no application to this case, because there had been no previous operation of the Pudukottai Regulation. What was held in the suit

was that the Regulation did not apply to the case and therefore it could not be said that the previous law operated on the case.

Undoubtedly, on and from 1st January 1950 the Madras Agriculturists Relief Act must be deemed to be in force in the territory which was

formerly the State of Pudukottai. Section 19(1) of the Act, which was a part of ihe original Madras Act 4 of 1938 before it was amended by Act

23 of 1948 confers a right on a judgment debtor against whom a decree had been passed before the commencement of the Act for the repayment

of a debt to apply for amendment of the decree in accordance with 4 the provisions of the Act. The words ""before the commencement of this Act

must obviously be construed in this case as ""before 1-1-1950."" If, on the other hand, the words are taken literally and to mean the commencement

of the Madras Act in 1938, then there would be the anomaly that Section 13 would be applicable without the petitioner ever having had the

opportunity of invoking the benefit of that section. This conclusion is also supported by the provision made in Section 7 of the Merged States Act

which enacts that for the purpose of facilitating the application in any merged State of any of the Acts made applicable by the Act, any court or

other authority may construe such enactment with such alterations not affecting the substance as may be necessary or proper to adopt it to the

matter before the court or other authority. As the decree in this case was certainly passed before 1-1-1950, the application made by the appellant

was ''prima facie'' maintainable. But the learned Judge considered that the saving provision in Section 6(1)(a) of the Merged States Act prevented

the application of the Madras Agriculturists Relief Act to this case, because the matter had been dealt with already under the Pudukottai

Regulation. He called into aid the well-established rule of statutory construction that no Act should be presumed to have a retrospective operation

and held that the new Act could not be construed as depriving any party of rights which had vested in him by reason of proceedings taken under

the repealed law.

No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing

right. That is the general rule. But no one can deny the competency of the Legislature to pass clearly, or by necessary and distinct intendment, to

have retrospective operation; there is nothing inherently illegal on that account.

A statute is to be deemed to be retrospective which takes away or impairs any vested right acquired under existing laws or creates a new

obligation or imposes a new duty or attaches a new disability in respect to transactions or considerations already passed.

(Vide Craies on Statute Law, 4th Edn. at page 329). It is not accurate to call a statute retrospective merely because a part of the material facts

dates from a time antecedent to the passing of the Act.

It cannot be disputed that a statute could expressly or by necessary intendment be retrospective in the sense that the Act applies to transactions

and facts prior to the date of the coming into force of the enactment. One must look to the general scope and purview of the statute and the

remedy sought to be applied. I fail to see how the rule which makes a presumption in favour of a new statute not being retrospective applies to a

case like the Madras Agriculturists Relief Act. One of the express purposes of that Act is to provide for the relief of indebted agriculturists by

scaling down debts due by them even when the debts have merged into decrees. Section 19 expressly makes the provisions of the Act applicable

to decrees passed before the Act in unequivocal terms, for it refers to decrees passed ""before the commencement of the Act"". The Act, therefore,

is designed to operate on decrees which have otherwise become final. In a case like this there is no scope for the application of the general

presumption against retrospective application of a statute.

It was then urged by the respondent that when an Act is repealed and a new Act is enacted, the provisions of the new Act should not be so

construed as to take away rights which had become vested in parties under the provisions of the older enactment.

The effect of repeal of a statute is comprehensively set out in Section 8, Madras General Clauses Act. The Merged States Act, by way of

abundant caution, also makes provision for the same result by Section 6 of that Act. Two questions therefore arise, namely, (1) Whether it can be

held that there has been a previous operation of the Pudukottai Regulation in this case, and (2) Whether, even assuming that it had operated, there

is anything inconsistent in applying the provisions of the new enactment with such prior operation of the old law.

Now, what is the right acquired by the respondent, the right which became vested in him, because of the rejection of the plea of the defendant

based upon the Pudukottai Regulation? All that was adjudicated upon in the prior litigation was whether the defendants were entitled to obtain

relief under that Regulation as ""agriculturists."" It was held by the Court that they were not ""agriculturists"" within the meaning of the Regulation then

in force. Does the adjudication mean that the judgment-debtors were precluded from ever obtaining any relief in future, even under new

enactments? Can it be said that a decision that the judgment-debtor is not entitled to a particular relief under a particular statute confers any

absolute indefeasible right on the decree-holder? Of course, the rule of res judicata bars any attempt to re-adjudicate on the same question,

confining the question to that which directly and substantially was decided on the prior occasion. Otherwise, I think that the doctrine of vested

rights cannot be extended to such cases. Take, for instance, a case where a person is held to fall outside the purview of an enactment, having

regard to a particular definition in force at the time. If there is subsequently a change in the definition which would draw the person within the

purview of the statute, can the person maintain the plea that he should be excluded from the operation of the new definition because it had been

held that he did net fall within the definition? I think not. A decision of a Full Bench of our Court appears to support my view.

In--''the Board of Commrs. for the The Board of Commissioners for the Hindu Religious Endowments Vs. P.V.R. Ratnasami Pillai and

Others, , the question arose in the following circumstances. The Hindu Religious Endowments Act of 1927 originally defined an ""exeepted temple

in certain terms in Clause 5 of Section 9. Sometime in 1927 a temple was held by the Board to be an ""excepted temple"" within the meaning of the

definition as it then stood. By an Amending Act of 1930 a new definition of an ""exeepted temple"" was substituted. After the Amending Act, the

Board held that the temple was not an ""exeepted temple"" according to the new definition. Against this decision of the Board the trustees of the

temple filed an application to set it aside on the ground that the former decision of the Board had become final and the Amending Act could not

take away the right acquired by the trustees under that decision. The District Judge who heard the application set aside the order, agreeing with the

contentions of the trustees, but in revision the Full Bench reversed the decision of the District Judge. Dealing with the first argument that the former

decision had become final, Varadachariar J., who delivered the opinion of the Full Bench said:

In the nature of things, the Board could have given a decision in 1927 only with reference to the definition as it then stood and the finality attached

by_ Section 84 to such a decision can also have relation only to that definition. Properly understood, the decision merely means that the institution

was an excepted temple within the meaning of Act 2 of 1927. It cannot be suggested that it is not open to the legislature to vary that definition. On

such variation, the question for determination will be whether the institution is an excepted temple within the meaning of the new definition. A

decision that an institution satisfied a particular definition cannot certainly mean a decision that it must satisfy the new definition.

The learned Judges also negatived the contention that the Amending Act could not take away the vested rights of the trustees. It was held that

there was really no question of any interference with a vested right or impairing obligations which had come into existence under a previous state of

law. After pointing out that there was nothing like a recognised, legal right or category of right known to general jurisprudence connoted by the

expression ""excepted temple"" and that it was merely a convenient method of referring to a certain class of temples with a view to lay down certain

rules in relation thereto, the learned Judge observed:

But it does not seem to us reasonable to suggest that there was a kind of guarantee that, once the Legislature has thought fit to say that a particular

temple will be dealt with in a particular manner, it should never afterwards be dealt with in a different manner.

The principle that freedom coming within the mischief of a particular enactment is not a right acquired which is saved from the operation of a

new enactment was applied in --''Starey v. Graham'', (1899) 1 QB 406 (B). A right acquired, Channell J. explains, does not mean ""right"" in the

sense in which it is often popularly used. He says:

In one sense, no doubt, every one has a right to do that which the law does not forbid. Every one has a right to wear spectacles, for instance, but

he does not acquire a right to wear them by the fact that he does wear them. He is only doing something which the law does not forbid; and if a

law were passed forbidding people to wear spectacles, everybody would stand in precisely the same position whether they had in fact been

wearing them before the Act or not. If a person has been wearing them he has done so, not because he had acquired a right to wear them, but

merely because the law had not forbidden him to do so.

Applying the analogy, it may be said that the decree-holder before the extension of Madras Act 4 of 1938 to Pudukottai had the right to execute

the decree for the full amount for which it was passed. What was decided in the prior decision was that he was not prevented from, doing so by

reason of the Regulation of 1938. By that decision he did not acquire a new right. The right which he had under the decree was held to be not

liable to be diminished. If, subsequently, a new enactment expressly curtails that right, it cannot be said that it is interfering with a right acquired by

him.

In my opinion, the application of Madras Act 4 of 1938 to this case does not, in any way, conflict with or circumvent the prior decision given

under the old Regulation. All that was decided was that the Pudukottai Regulation did not apply to the case. That does not mean that no

subsequent enactment on the subject can ever apply to the case. To give an extreme illustration, suppose a new enactment is passed under which

all unsatisfied decrees are wiped out, would not such a law apply to this case merely because it was decided previously that the Pudukottai

Regulation of 1938 which gave a limited relief to the debtor would not apply to the case? The basis of the prior decision was that the judgment-

debtors were not agriculturists within the meaning of the definition of an ""agriculturist"" in the Regulation. If, subsequently, a different definition of an

agriculturist"" is substituted and the judgment-debtors came within the scope of that decision, it cannot be said that they are not entitled to seek

relief afresh.

Madras Act 4 of 1938 is expressly retrospective in the sense that it affects decrees and transactions before the commencement of that Act.

That Act must be deemed to have come into force in the territory of Pudukottai from 1st January 1950. The statute is a piece of beneficial

legislation and the Federal Court has laid down that

The words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall

not be denied to the persons intended to be relieved""-- AIR 1949 135 (Federal Court) .

Logically, if the contention of the respondent is accepted, there should not be any difference between a case in which there was a decision

under the prior Pudukottai Regulation and a case in which there was not. If a person was not an agriculturist within the meaning of that Regulation,

it would not really matter whether there was an adjudication to that effect or not. In all cases in which we can now hold that the debtors were not

agriculturists within the meaning of that Regulation, Madras Act 4 of 1938 which came into force on 1-1-1950 could not be taken advantage of by

the debtors, because it could be said that in all these cases the respective decree-holders had acquired rights to execute their decrees in full. That

would mean making a distinction between cases in which decrees had been passed before 1-1-1950 and cases in which decrees have been

passed after that date. We see nothing in the provisions of the Madras Merged States Act or in the general law relating to interpretation of statutes

which would justify such a distinction. In effect such a construction would make Section 19 of the Act a dead letter.

It may be asked, in what cases the saving provision embodied in Section 6(1)(a) of the Merged States Act would apply. That would apply in

cases in which relief was granted under the Pudukottai Regulation. Nothing in Madras Act 4 of 1938 could deprive the debtor of that relief. That

provision only means that the repeal of the Pudukottai Regulation would not have the effect of nullifying the scaling down made under the prior

Regulation.

The learned Subordinate Judge, while recognising that it is open to give any statute retrospective operation, considered that there was no such

provision in the Madras Merged States Act. That is certainly so. But the pro vision of Madras Act 4 of 1938 which came into force by reason of

Section 3 of the Madras Merged States Act does have retrospective operation in the sense that it does refer to decrees passed and liabilities

incurred before the commencement of the Act.

Several decisions were cited to us by counsel on both sides, but we have not been able to derive any assistance from such of those as have not

been mentioned already in this judgment.

I am therefore of opinion that the Madras Agriculturists Relief Act 4 of 1938 which came into force in the territory of Podukottai on 1-1-1950

is applicable to this case. The application made by the appellant u/s 20 of that Act must have been granted. We allow the appeal, set aside the

order of the learned Subordinate Judge and allow the petition filed by the respondent. There will be no order as to costs. This decision of ours

does not imply that the petitioner is an agriculturist. That question may have to be decided later if and when an application is filed u/s 19 of the Act.