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PETITIONER:

K. SANKARAN NAIR

Vs.

RESPONDENT:

DEVAKI AMMA MALATHY AMMA & ORS.

DATE OF JUDGMENT: 25/09/1996

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

SINGH N.P. (J)

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N I

S.B. Majmudar. J.

The appellants who are the heirs of deceased defendant

no.2, have challenged the judgment and order passed by

learned Single Judge of the Kerala High Court in Civil

Revision Petition No.682 of 1980 . The High Court rejected

the contention of the original appellant defendant no. 2, in

Original Suit No.241 of 1974 by which he claimed status of a

deemed tenant as per the provisions of Section 6C of the

Kerala Land Reforms Act, 1963 as brought on the statute Book

by the Kerala Land Reforms (Amendment) Act. 1979

(hereinafter referred to as `the Act'). Having obtained

special leave to appeal under Article 136 of the

Constitution of India the present appeal has been filed by

the original defendant no.2. The respondents herein are the

original plaintiffs in the suit.

A few relevant facts leading to these proceedings may

be noted at the outset. The respondents-plaintiffs filed

Original Suit No.241 of 1974 in the Court of Subordinate

Judge at Trivandrum for partition of respondents, 5/6th

share in the plaint schedule properties and for recovering

the same from original appellant-defendant no.2 and his wife

original appellant-defendant no. 1 with past and future

mesne profits.

The respondent-plaintiffs' case in short was that the

suit properties originally belonged to one Krishna Pillai

Madhavan Pillai. Said Madhavan Pillai by a settlement Deed

of 1945 (1120 M.P.) decided that plaint properties A, B, C

Schedule were to remain in possession and enjoyment of Shri

Madhavan Pillai, his wife parvathi Amma and for the benefit

of their children and said Parvathi Amma had to remain in

possession as life estate holder. That said Madhavan Pillai

died in 1955 and his widow parvathi Amma and his son

Krishnan Nair succeeded to his properties. That Kerala

Agrarian Reforms Act, Act I of 1964 was brought on the

Statute Book on 1st April 1964. Said Krishnan Nair died on

4th January 1968. Said Parvathi Amma by a registered deed is

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said to have leased out her properties on 10th January 1969

to her son-in-law, deceased appellant original defendant

no.2. Widow of Shri Krishnan Nair and her children filed

the aforesaid suit as plaintiffs nos.1 and 2 to 5

respectively in the Trial Court for partition and separate

possession of their 5/6th share in the plaint schedule

properties which were then in possession of original

defendant no.2 In the said suit original defendant no.2

took up the contention that he was a tenant under the Kerala

Agrarian Reforms Act. That question was referred to the

Tenancy Tribunal under Section 125(3) of the Kerala Land

Reforms Act for decision. The Tribunal held that original

appellant-defendant no.2 was not a tenant under the Act and

the Lease Deed in his favour was hit by Section 74 of the

Kerala Land Reforms Act which totally barred creation of

leases after 1.4.1964. The case of oral lease in his favour

prior to 1.4.1964. was also found to be not established.

The Tribunal's decision was confirmed by the High Court on

31st March 1978. Appellant carried the matter to this

Court. Special Leave Petition against the High Court's

judgment was also dismissed by this Court on 28th August

1978. Thus the question of alleged tenancy of the appellant

under the Lease Deed of 10th January 1969 finally got

concluded against the appellant. In the meantime the Trial

Court passed preliminary decree on 30th March 1976 and a

receiver was appointed who took possession of the suit land

from the appellant. Final decree was passed on 27th

September 1978. Pursuant thereto the respondents obtained

possession from the appellant through the receiver.

Consequently final decree remained to be executed only for

mesne profits and for that purpose the respondent filed

Execution Petition against the appellant on 5th July 1979.

Pending these execution proceedings for mesne profits Kerala

Land Reforms (Amendment) Act, 1979 was brought on the

Statute Book. As per Section 1 sub-section (2) thereof the

said Amendment Act was deemed to have come into force on 7th

July 1979. By the said Amendment Act Section 6C was

inserted in the Kerala Land Reforms Act, 1963. The said

provision reads as under :

"6C. Certain lessees who have made

substantial improvements, etc, to

be deemed tenants.-

Notwithstanding anything contained

in section 74 or in any contract,

or in any judgment, decree or order

of any court or other authority,

any person in occupation at the

commencement of the Kerala Land

Reforms (Amendment) Act, 1969, of

the land of another person on the

basis of a lease deed executed

after the 1st day of April, 1964,

shall be deemed to be a tenant if-

(a) he (including any member of his

family) did not own or hold land in

excess of four acres in extent on

the date of execution of the lease

deed: and

(b) he or any member of his family

has made substantial improvements

on the land.

Explanation.- For the purpose of

this section improvements shall be

deemed to be substantial

improvements if the value of such

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improvements is more than fifty per

cent of the value of the land on

the date of execution of the lease

deed."

The original judgment-debtor defendant no.2, that is,

is original appellant herein, applied on 8th January 1980 in

execution proceedings to get a fresh reference to the Land

Tribunal for deciding his deemed tenancy status under

Section 6C of the aforesaid Amending Act. The respondents-

decree holders objected to the said application. By an

order dated 29th January 1980 the Executing Court rejected

the claim of the appellant for a fresh reference to the

Tribunal about his status of deemed tenancy under Section 6C

of the Act on the ground that this contention was barred by

principles of res judicata. The appellant carried the

matter in revision before the High Court. As noted earlier a

learned Single judge of the High Court by her decision dated

7th April 1980 rejected the said revision application taking

the view that though the contention of the appellant was not

barred by res judicata because of the coming into force of a

new provision by way of Section 6C of the Act, the Lease

Deed in favour of the appellant dated 7th July 1969 was

inoperative in law as Parvathi Amma who was a life estate

holder had no authority to create such a lease and Chapter

II of the Kerala Land Reforms Act, 1963 did not apply to the

facts of the present case in view of Section 3(1)(vi) which

stated that tenancies in respect of land or of buildings or

of both created by persons having only life interest or

other limited interest in the land or in the buildings or in

both, were not covered by Chapter II of the Act which

included Section 6C. It is the aforesaid order of the

learned Single Judge of the Kerala High Court that is

brought in challenge by the original appellant by way of

present proceedings. Pending this appeal original appellant

died and his heirs have pursued this appeal.

A short question with which we are concerned in these

proceedings is as to whether original appellant defendant

no.2 was entitled to again claim the benefit of deemed

tenancy as per Section 6C of the Act. Even though the

learned Single Judge of the Kerala High Court in the

impugned judgement has taken the view that this contention

is not barred by res judicial learned senior counsel for the

respondents vehemently contended that the decision of the

learned single judge deserves to be confirmed on the plea of

res judicata though even on merits, according to his, the

said decision is well sustained. In view of the aforesaid

contention of learned senior counsel for the respondents,

learned senior counsel for appellant Shri Sukumaran was

called upon by us to point out as to how the contention of

the appellant for getting benefit of Section 6C cannot be

said to be barred by res judicata in view of the earlier

claim of his tenancy rights qua the very same land had stood

finally rejected by this Court on 28th August 1978. Learned

senior Counsel for the appellant in this connection

submitted that when earlier proceedings got terminated

before this Court Section 6C was not on the Statute Book.

That it was brought on the statute book subsequently with

effect from 7th July 1979. Consequently the principles of

res judicata would not apply so far as this new provision is

concerned which gave a fresh right to the appellant to

contend that he was entitled to get the benefit of the

aforesaid rival contention. In the light of the aforesaid

rival contentions we proceed to resolve this controversy.

It must at once be stated that if the contention of the

appellant for getting benefit of Section 6C of the Act is

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found to be barred by principles of res judicata nothing

further would survive in these proceedings and the judgment

of the High Court will have to be confirmed on this ground

alone. In order to resolve this controversy between the

parties it is necessary to note the background facts leading

to the enactment and introduction of Section 6C in the

parent Act. Relevant recitals in the Statement of Objects

and Reason for bringing on the Statute Book the aforesaid

provision read as under:

"Difficulty was experienced by the

Government in implementing certain

important provisions of the Kerala

Land Reforms Act, 1963 in

accordance with their true spirit

and the intention of the

Lagislature, because of certain

decisions of the Kerala High Court,

Government have also received

representations from a large number

of tenants and other persons

pointing out the hardship caused to

them by the impact of the above

judgments. In order to overcome

such difficulties and hardship it

was considered necessary to amend

the Kerala Land Reforms Act

suitably. It was also proposed to

vail of this opportunity to make

certain other amendments which were

found necessary for the smooth and

speedy implementation of the

provision of the Act. The

succeeding paragraphs briefly

explain the scope of the more

important amendments.

2. It was brought to the notice of

the Government that inspite of the

provisions contained in section 74

of the Act, prohibiting the

creation of tenancies after the 1st

April 1964, some persons have

obtained leases of lands after that

date and have effected substantial

improvement on such lands. It was

considered that it would be very

hard if such lessees are evicted

from their holdings. It was

therefore necessary to incorporate

a provision to give protection to

such persons."

The aforesaid Statement clearly shows that as per the

provisions of Section 74 of the Act no tenancies could be

created after 1st April 1964 and thus there was total bar to

creation of such tenancies. Consequently the appellant's

claim to be a tenant of the land as per the registered Lease

Deed dated 10th January 1969 had stood replied upto this

Court. There cannot be any dispute about the same. In order

to infuse life in such void leases Section 6C was brought on

the Statute Book by the Legislature. It is of course true

that Section 6C starts with a non obstante clause and

recites that notwithstanding anything contained in section

74, or in any contract, or in any judgment, decree or order

of any court or other authority, any person in occupation at

the commencement of the Kerala Land Reforms (Amendment) Act,

1969 of the land of another person on the basis of a lease

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deed executed after the 1st day of April, 1964 shall be

deemed to ba a tenant if he satisfies conditions (a) and (b)

mentioned in the said Section. It is also true that for

applicability of this Section the concerned person who claim

deed tenancy statues must be in occupation at the

commencement of the Kerala Land Reforms Act, 1969, that is ,

on 1.1.1970 when that Act came into force and such a person

mist have ben inducted as a lessee under a lease Deed

executed by the lessor after 1st April 1964. But the said

non obstante clause in Section 6C can at all have an effect

of displacing any final judgments or decree against such

persons if the substratum of such judgments was removed by

retrospective amendment of the Act by insertion of Section

6C. It is now well settled that Legislature cannot overrule

any judicial decision without removing the substratum or the

foundation of that judgment by a retrospective Amendment of

the concerned legal provision. Section 6C as we have noted

above, starts with a non obstante clause and seeks to remove

the prohibitive effect of Section 74. If that legislative

exercise is to succeed effectively then Section 74 should

have been either deleted form the Statute Book with

retrospective effect from 1st April 1964 when the Kerala

Land Reforms Act, the parent Act, came into force or at

least from 1.1.1970 when the Amendment Act, 1969 came on the

Statute Book and on which date the concerned person who

claimed deemed tenancy under Section 6C was required to be

in possession of the land. However the Legislature in its

wisdom did not think it for, while bringing on the Statute

Book Section 6C form 7th July 1979, to either five to

retrospective effect form 1.1.1970, or to delete Section 74

retrospectively at least from 1.1.1970 if not from an

earlier date of 1st April 1964 when the parent Act itself

was brought on the Statute Book. Consequently the non

obstante clause introduced in Section 6C for bypassing the

final judgments, decree or orders of any court against any

person remained in the reals of an abortive or an

incompetent exercise on the part of the Legislature. To

recapitulate the earlier decision rendered against the

appellant could have been effectively displaced by the

Legislature by enacting Section 6C if the very foundation or

substratum of those earlier judgments was knocked off by the

Legislature by enacting a competent piece of legislation

undertaking any of the following exercises:

1. By retrospectively deleting Section 74 of the Act from

1.4.1964 or at least from 1.1.1970.

2 Or alternatively by making Section 6C retrospective

from 1.4.1964 or at least form 1.1.1970.

If any of the aforesaid legislative exercises which

would have remained within the competence of Kerala State

Legislature was actually undertaken then only the non

obstinate clause under Section 6C would have effectively and

legally operated for bypassing the final judgments against

such a person who was to be given benefit of Section 6C. In

the absence of any of these eventualities it must be held

that by enacting Section 6C the Legislature tried to

legislatively overrule binding judgments, against parties,

which might have become final prior to 7th July 1979. As

Section 6C was expressly made operative only from that date

with the result the legal foundation of adverse judgment

against the appellant rendered prior to 7th July 1979 could

not be effectively whittled down by a sweep of section 6C.

It is now well settled by a catena of decisions of this

Court that unless the Legislature by enacting a competent

legislative provision retrospectively removes the substratum

or foundation of any judgment of a competent court the said

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judgment would remain binding and operative and in the

absence of such a legislative exercise by a competent

legislature the attempt to upset the binding effect of such

judgments rendered against the parties would remain an

incompetent and forbidden exercise which could be dubbed as

an abortive attempt to legislatively overrule binding

decisions of courts. A Constitution Bench of this Court in

the case of Shri Prithvi Cotton Mills Ltd, and Anr, v.

Broach Borough Municipality and Ors. (1970) I SCR 388

speaking through Hidayatullah, CJ., made the following

pertinent observations in this connection :

""When a legislature sets out to

validate a tax declared by a court

to be illegal collected under an

ineffective or an invalid law, the

cause for ineffectiveness or

invalidity must be removed before

validation can be said to take

place effectively. The most

important condition of course is

that the legislature must possess

the power to impose the tax for if

it does not the action must ever

remain ineffective and illegal.

Granted legislative competence it

is not sufficient to declare merely

that the decision in exercise of

judicial power or exercise. A

court's decision must always bind

unless the conditions on which it

is based are so fundamentally

altered that the decision could not

have been given in the altered

circumstances."

Another Constitution Bench of this Court in Madan Mohan

Pathak and another etc etc. v. Union of India and others

(1978) 2 SCC 50 speaking through Bhagwati,J. for himself and

Krishan Iyer and Desai, JJ., in para 8 of the Report

considered the incompetent attempt made by the Parliament in

enacting Life Insurance Corporation (Modification of

Settlement) Act, 1976 by which a binding decision of the

Calcutta High Court issuing writ of mandamus of bonus for

the year April 1 1975 to March 31, 1976 was sought to be

nullified. It was held that such an exercise was

incompetent.

In the case of A.V. Nachane and Anr. etc etc. v. Union

of India and Anr, (1982) 1 SCC 205 a three judge Bench of

this Court referred the aforesaid decision of the

Constitution Bench speaking through Bhagwati.J.. in para 12

of the Report.

This very question was once again examined by a three

member Bench of this Court to which one of us N.P. Singh, J.

was a party and who spoke for the Bench in the case of

Bhubaneshwar Singh and Anr. v. Union of India and Ors.

(1994) 6 SCC 77. In para 11 of the Report the following

pertinent observations were made:

" From time to time controversy has

arisen as to whether the effect of

judicial pronouncements of the High

Court or the Supreme Court can be

wiped out by amending the

legislation with retrospective

effect. Many such Amending Acts

are called Validating Acts,

validating the action taken under

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the particular enactments by

removing the defect in the statue

retrospectively because of which

the statue or the part of it had

ben declared ultra vires Such

exercise has been held by this

Court as not to amount to

encroachment on the judicial power

of the courts. The exercise of

rendering ineffective the judgments

or orders of competent courts by

changing the very basis by

legislation is a well-known device

of validating legislation. This

Court has repeatedly legislation.

This Court has repeatedly pointed

out that such validating

legislation which removes the cause

of the invalidity cannot be

considered to be an encroachment on

judicial power. At the same time

any action in exercise of the power

under any enactment which has been

declared to be invalid by a court

cannot be made valid by a

validating Act by merely saying so

unless the defect is removed with

retrospective effect. The

validating legislation must remove

the cause of invalidity. Till such

defect or the lack of authority

pointed out by the court under a

statute is removed by the

subsequent enactment with

retrospective effect, the binding

nature of the judgment of the court

cannot be ignored."

The same view was once again reiterated by this Court

in the case of Comorin Match Industries (p) Ltd. v. state of

Tamil Nadu (1996) 4 SCC 281. In S.R. Bhagwat and Ors. v.

State of Mysore (1995) 6 SCC 16, a three judge Bench

speaking through one of us, S.B. Majmudar, J., made the

following observations in para 12 of the Report:

"It is now well settled by a catena

of decisions of this Court that a

binding judicial pronouncement

between the parties cannot be made

ineffective with the aid of any

legislative power by enacting a

provision which in substance

overrules such judgment and is not

in the realm of a legislative

enactment which displaces the basis

or foundation of the judgment and

uniformly applies to a class of

persons concerned with the entire

subject sought to be covered by

such an enactment having

retrospective effect."

In view of this settled legal position, therefore, it

must be held that Section 6C could not be pressed in service

by the original appellant for displacing the binding

judgments rendered by the Tribunal the High Court and this

Court in the earlier tenancy proceedings wherein his claim

for tenancy of the suit land cane to be repelled and those

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judgments have become final and binding and were no in any

way legally displaced by any competent piece of legislation

by the Kerala Legislature: Those judgments remained fully

operative against the appellant and consequently on the

principle of res judicata the appellant could not once again

re-agitate the question about his tenancy.

However learned senior counsel Shri Sukumaran, for the

appellant tried to get over this difficulty in the way of

the appellant by placing reliance on two decision of this

Court. In Mathura Prasad Bajoo Daiswal and Ors.v. Dossibai

N.B. Jeejeebhoy 1970 (1) SCC 613 a three judge Bench of this

Court speaking through J.C. Shah.J.. took the view that the

doctrine of res judicata belongs to the domain of procedure.

And that a decision on an issue of law will be res judicata

in a subsequent proceeding between the same parties, if the

cause of action of the subsequent proceeding be the same as

in the provisions proceeding, but not when cause of action

is different. He invited our attention specially to para 7

of the report where in it is observed that where the law is

altered since the earlier decision, the earlier decision

will not operate as res judicata between the same parties

and it was obvious that the matter in issue in a subsequent

proceeding was not the same as in the previous proceeding,

because the law interpreted is different. These observations

will have to be appreciated in the light of the controversy

which came up for consideration of this Court. In the

aforesaid case the tenant of an open land had tried to get

standard rent fixed under the Bombay Rent Act. At that time

the land in question was within the territorial jurisdiction

of Civil Court, Borivli, Greater Bombay. The learned Civil

judge took the view that Rent Act was not applicable to open

lands which were let for construction of residential and

business premises. Therefore, the court had no jurisdiction

under Section 8 of the Bombay Rent Act to entertain standard

rent application. Subsequently the Bombay High Court took a

contrary view and held on the proper construction of Section

6 of the Bombay Rent Act that open lands let for

construction of buildings for residential and business

purpose also were covered by the sweep of Section 6 and the

Bombay Rent Act applied to such lands. Taking clue from the

said decision the tenant once again applied for fixation of

standard tent before the Court of Small Causes, Bombay as

the land by that time had come within the territorial

jurisdiction of the Small Causes Court exercising

jurisdiction over the Greater Bombay area. Question was

whether such an application for fixation of standard rent

was barred by res judicata. This Court, disagreeing with the

view taken by the High Court that there was such a bar, held

that when question of jurisdiction independent of the rights

of parties was on the anvil the earlier decision would not

be res judicata. It becomes obvious that the plea for

fixation of standard rent would furnish a recurring cause of

action and though earlier the Court might not have

jurisdiction under the Bombay Rent Act to fix standard rent,

if by a subsequent decision of a competent court the Rent

Act was found applicable the subsequent application for

fixation of standard rent could not be said to be barred by

res judicata as the cause of action itself would be

different in that case being a subsequent and recurring

cause of action. The tenant could effectively contend that

even though earlier the standard rent could not have ben

fixed by the Court which held that it had no inherent

jurisdiction if subsequently the Court was found to be

having such jurisdiction it could fix the standard rent oat

least prospectively from the date of such fresh application.

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We fall to appreciate how that decision can be of any avail

to the learned senior counsel for the appellant in the facts

of the present case. There is no question of lack of

jurisdiction with the competent court which earlier decided

the plea of tenancy under the very Act as raised by the

appellant. Not only the decision was rendered on merits by

competent court but it was confirmed by this Court. The

cause of action remained the same, namely status of tenancy

of the appellant qua the land and against the plaintiffs. If

support of the same cause of action the appellant now wanted

to take advantage of Section 6C which unfortunately for him

was having no retrospective effect so as to knock off the

substratum of the decisions rendered by the competent courts

earlier. Consequently the ratio of the decision of this

Court in Mathura Prasad's case (supra) cannot be of any

avail to the appellant on the facts of the present case.

Reliance was then placed by learned senior counsel for the

appellant on the decision of this Court in the case of Nand

Kishore v. State of Punjab (1995) 6 SCC 614. In that case

the provision under which earlier the appellant was

compulsorily retired from service was subsequently found to

be unconstitutional. Question was whether thereafter the

challenge to compulsory retirement could be effectively

levelled by the appellant or not and whether such a

challenge was barred by the principles of res judicata.

Punchhi, J., speaking for a two member Bench of this Court

held that once the constitutionality of the provision was

gone into by the Supreme Court and once the provision was

struck down the hurdle in the way of the appellant vanished

and consequently the suit filled by the appellant

challenging the compulsory retirement could not be said to

be barred by the principles of res judicata. It becomes at

once clear that once this Court struck down the concerned

rule permitting compulsory retirement of a Government

servant the very basis of the earlier judgment upholding

such an exercise got knocked off and was totally obliterated

from the Statute Book. Consequently the very foundation of

the judgment vanished. Such a judgment would obviously

become baseless lacking the very foundation on which it

could operate. The very foundation of an earlier judgment

can be displaced by either competent legislature enacting a

retrospective provision for that purpose or by a competent

court deciding the concerned legal provision on which such

judgment is based as ultra vires and void. In either case

the very foundation and legal substitution of such judgment

will vanish retrospectively. In such an eventuality the law

could be said to have been totally displaced form the very

inception of enactment of such a law and consequently any

judgment based on such a non-existing law as found in

retrospect could obviously lack efficacy and consequential

force of res judicata. Learned senior counsel for the

appellant could have got effective help from the aforesaid

ratio of this judgment if any competent court had struck

down Section 74 of the Kerala Land Reforms Act as

unconstitutional and had not resorted to the process of

prospective overruling if such competent court could

otherwise do so. But such are not the facts of the present

case. Section 74 has operated untouched form the very

inception when it saw the light of the day along with other

provisions of the Act on 1st April 1964. Therefore, it

effectively supplied a valid legal foundation for the

earlier judgments rendered before 1.1.1970 to operate. That

foundation has remained untouched and Section 6C has not

tinkered with it. It must therefore be held that earlier

judgment as confirmed by this Court against the appellant

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negativing his plea under the Tenancy Act have remained

fully operative and will constitute a valid bar of res

judicata against the present plea of the appellant centering

round Section 6C. The High Court with respect was in error

in taking the view that because of Section 6C the earlier

judgment would not operate as res judicata. Once that

conclusion is reached the decision of the High Court will

have to be confirmed on this ground alone. Consequently on

entirely a different line of reasoning we confirm the

judgment of the learned Single Judge of the High Court. In

that view of the matter we do not deem it fit to consider

the further question whether even if Section 6C operated in

favour of the appellant on merits he would have no case as

the lease was created in his favor by a life interest

holder. Learned senior counsel for the appellant had a

serious grievance about the reasoning adopted by the High

Court on this aspect. It is not necessary for us to rest

our judgment on consideration of this aspect as no further

enquiry in the matter survives for consideration in favour

of the original appellant once the earlier judgments are

found to operate as res judicata debarring his from raising

such a contention during execution proceedings taken out by

the respondents for fixation of mesne profits.

In the result this appeal fails and will stand

dismissed in view of our aforesaid findings. In the facts

and circumstances of the case there will be no order as to

costs.