IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 WP(C).No. 33434 of 2009(Y) -------------------------------------- PETITIONER: ------------------- P.R.BHASKARAN, THRIKKATHARA PARAMBU, IRIMPANANM P.O. THRIPUNITHURA, PIN-672309. BY ADVS. SRI.DEVAN RAMACHANDRAN, SRI.K.M.ANEESH, SRI.K.SANTHOSH KUMAR (KALIYANAM). RESPONDENTS: ------------------------ 1. STATE OF KERALA, REGISTRATION DEPARTMENT, REPRESENTED BY ITS SECRETARY, SECRETARIAT THIRUVANANTHAPURAM. 2. THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, THRIPUNITHURA. R1 & R2 BY GOVERNMENT PLEADER SRI. K. RAMESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2010, ALONG WITH W.P.(C). NO. 36240 OF 2009,THE COURT ON 17/05/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.33434/2009-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE PATTA NO. LA 49/90 DTD. 05/08/1995. EXT.P.2: COPY OF THE AGREEMENT TO SELL DTD. 16/10/09. EXT.P.3: COPY OF THE DRAFT SALE DEED. EXT.P.4: COPY OF THE NOTIFICATION NO. 191 DT. 24/01/09. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 33434/2009 and 36240/2009 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of May, 2010. JUDGMENT These two writ petitions raise a common question and are therefore disposed of by a common judgment. 2. Mainly it is concerned with the interpretation of the Kerala Land Assignment Amendment Rules, 2009 whereby certain Rules including Rule 8 have been amended. 3. The petitioner in W.P.(C) No.33434/2009 obtained patta as per Ext.P1 for an extent of 4.50 cents of land in Sy. No.72/12 of Thiruvankulam Village. The same was granted under the Kerala Land Assignment Rules 1964 (hereinafter referred to as 'the Rules'). He is residing in the said plot after constructing a small house. For the purpose of raising money for the marriage of one of the daughters and for educational needs of the second daughter, the petitioner decided to sell the property which is evidenced by Ext.P2 agreement for sale. In the light of the amended Rule 8, the authorities raised an objection regarding the registration of the sale deed and it is in these circumstances, he has filed this W.P.(C).Nos. 33434 & 36240 of 2009 2 writ petition. It is contended that the amendment will not apply to the patta granted to the property of the petitioner. 4. In W.P.(C) No.36240/2009, the petitioner is the owner and in possession of 1.61 ares of land in Survey No.796 of Edavanakkad Village. which was assigned as per patta dated 18.9.1990 (Ext.P1). Herein also, there is an agreement for sale dated 9.10.2009. When the further formalities were sought to be completed, the revenue authorities informed that the property cannot be sold in the light of the amendment of the rules. 5. In both the writ petitions, the restriction regarding alienation was only for a period of three years from the date of assignment, as the Land Assignment Rules provided at that time. Under the amended provision, it is specified that the land is not alienable for a period of 25 years from the date of registry. It is this amendment which the petitioners contend, cannot apply to them, as the same is not retrospective at all. 6. The amended rules have been produced as Ext.P4 in W.P.(C) No.33434/2009. It is published in the Extra-ordinary Gazette dated 24.1.2009. Going by sub-rule (ii), the amendment shall come into force “at once”. The following are the important amendments contained in Rule 2 of the amended rules: W.P.(C).Nos. 33434 & 36240 of 2009 3 “(1) In rule 7, in sub-rule (2), in item (i), First Preference for the letters and figure “Rs.30000”, the letters and figure “Rs.75000” shall be substituted; (2) in rule 8,-- (i) in sub-rule (1),-- (a) for the words “and alienable” the words “but not alienable for a period of twenty-five years from the date of registry” shall be substituted; (b) the following proviso shall be inserted, namely;-- “provided that the assignee may mortgage such lands,-- (a) to the Government Co-operative Institutions or the Tea Board or the Rubber Board or any other financial institutions recognised by the Government in this behalf, as security for obtaining loans for agricultural or land improvement purposes or for growing tea or rubber, and (b) to the Government or Co-operative Institutions as security for obtaining loans for house construction under the Village Housing Project Scheme or any other housing schemes sponsored by the Government, if such house is required for the occupation of the assignee or his family”. (ii) sub-rule (1A) and proviso thereunder shall be omitted. W.P.(C).Nos. 33434 & 36240 of 2009 4 (iii) in sub-rule (3) for the words and brackets “sub-rule (1A)” the words and brackets “sub-rule (1)” shall be substituted. (3) In Appendix I, for condition number (i) except provisos, the following condition shall be substituted, namely:-- “(1) That the land/lands shall be heritable but, shall not be alienable for a period of twenty-five years from the date of registry.” Appendix II has also been amended and the conditions have been substituted. Condition No.3 is the following: “No alienation shall be made for a period of twenty-five years from the date of registry. In the event of alienation in contravention sub- rule (1) of rule 8 the Government shall resume the land without payment of any compensation.” The same alone is relevant for the purpose of this case. 7. Heard Shri Devan Ramachandran and Shri P.B.Sahasranaman, Advocates for petitioners and the learned Government Pleader, Shri K.Ramesh for the respondents. It is contended by Shri Devan Ramachandran, learned counsel appearing for the petitioner in W.P.(C) No.33434/2009 that the amendment is not retrospective in nature and therefore it cannot affect the right of the petitioners. Obviously, the amendment has not been made with retrospective effect, as it is only W.P.(C).Nos. 33434 & 36240 of 2009 5 specified that this amendment shall come into force “at once” and hence is operative only from 24/01/2009. It is contended that there is a presumption against retrospectivity which is a well accepted principle. It is pointed out that under the guise of the amendment, the vested right cannot be affected also as the statutes which may affect the substantive right, can only be termed as prospective. Learned counsel relied upon various decisions of the Apex Court and of this Court in this regard. They are State of T.N. v. Arooran Sugars Ltd. [(1997) 1 Supreme Court Cases 326]; Shri Vijayalakshmi Rice Mills v. State of A.P [AIR 1976 Supreme Court 1471]; ITW Signode India Ltd. v. Collector of Central Excise [(2004) 3 Supreme Court Cases 48]; Aravindakshan v. Sukumaran [2000 (1) KLT 107]; Varkey Abraham v. Secretary to Government [2007 (3) KLT 702]; State of Kerala v. Bhaskaran Pillai [2007 (3) KLT 711 (SC)]; Travancore Rayons Ltd. v. Kerala State Pollution Control Board [2000 (1) KLT 175]; 8. First we may consider the amendments which have been brought into effect by the amended rules, Ext.P4. The first one is regarding the amendment in Rule 7 where, for the figure Rs.30,000/-, the letters and figure Rs.75,000/- has been substituted. In Rule 8, the words “and W.P.(C).Nos. 33434 & 36240 of 2009 6 alienable” have been replaced with the words “but not alienable for a period of 25 years from the date of registry”. The two provisos therein are the previous ones. Sub-rule 1A and proviso have been omitted. The unamended sub-rules 1 and 1A of Rule 8 except the provisos read as follows: “8. Conditions of assignment on registry.-- (1) Lands, granted on registry shall be heritable and alienable. (1A) Notwithstanding anything contained in sub-rule (1), unoccupied lands assigned on registry shall not be alienable for a period of three years from the date of registry.” 9. Going by the unamended rules, the lands granted on registry shall be heritable and alienable and the restriction regarding alienation of unoccupied lands assigned on registry, was for a period of three years from the date of registry. This condition was imposed in the pattas granted to the petitioners, obviously. After the initial period of three years, therefore, these restrictions are not applicable as far as the petitioners' pattas are concerned. Therefore, the question is whether, by substitution of the rule, automatically the new restriction will apply to the assignments granted prior to the amendment. W.P.(C).Nos. 33434 & 36240 of 2009 7 10. In this context, learned counsel for the petitioners relied upon a decision of a Division Bench of this Court in Varkey Abraham v. Secretary to Government (2007 (3) KLT 702), in interpreting a similar amendment to the Land Assignment Rules. The amendment considered therein was in respect of Rule 5 of the Land Assignment Rules, 1964. The said rule provides for the maximum extent of land that could be assigned on registry for the purposes of personal cultivation, house sites and beneficial enjoyment of adjoining registered holdings. Clause (b) of Rule 5 prior to the amendment, provided for assignment of lands, viz. not more than one acre in the plains and not more than one acre of wet land or three acres of dry land in hilly tracts, if there are no improvements in the land, and where there are improvements effected on the land by the occupant, not more than two acres in the plains and not more than two acres of wet land or four acres of dry land in hilly tracts. This was substituted by the amendment which came into force on 3.3.2005. It was provided in the amendment that the lessee or the encroacher as the case may be will be eligible for assignment of not more than 50 cents of land, whether wet or dry, in the plains, and one acre of land, whether wet or dry in hilly tracts. It was held that “the amended Rules would apply to any assignment after the W.P.(C).Nos. 33434 & 36240 of 2009 8 amendment, irrespective of the date of application and therefore, the maximum extent that could be assigned to the petitioner, if he is entitled to get assignment, is not more than fifty cents of land.” (para 9). It is therefore contended that a similar interpretation has to be made in the light of the above dictum, that the amended Rules 2009 would apply to an assignment made after the amendment only. 11. Before considering the various aspects, the rules of interpretation as regards retrospectivity of statutes and statutory rules will have to be considered. A Division Bench of this Court in Travancore Rayons Ltd. v. Kerala State Pollution Control Board (2000 (1) KLT 175), after referring to various decisions of the Apex Court, reiterated these principles thus in para 9: “It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. But the rule in general is applicable where object of statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in statute sufficient to show the intention of legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis' (a new law ought to be prospective, not retrospective, in its operation). W.P.(C).Nos. 33434 & 36240 of 2009 9 Provisions which touch a right in existence at the passing of statute are not to be applied retrospectively in the absence of express enactment or necessary intendment. Every statute, it has been said, which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect. As a logical corollary of general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. Close attention must be paid to language of the statutory provision for determining scope of retrospectivity intended by legislature. In contract to statutes dealing with substantive rights, statutes dealing with merely matters of procedure are presumed to be retrospective unless such a construction is textually inadmissible.” 12. Going by the said principles, it is clear that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operations. When there is no express provision making the rules retrospective, it would have to be found out from the language of the provisions itself whether they are retrospective in nature. Herein, W.P.(C).Nos. 33434 & 36240 of 2009 10 another important principle is that a statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have any retrospective effect. Normally, statutes dealing with matters of procedure are presumed to be retrospective in contrast to statutes dealing with the substantive rights. 13. The Apex Court has examined this question in various decisions. In State of T.N. v. Arooran Sugars Ltd. {(1997) 1 SCC 326}, in para 13 the Apex Court has quoted the following dictum laid down by a Constitution Bench in State of Gujarat v. Raman Lal Keshav Lal Soni {(1983) 2 SCC 33}: “The legislation is pure and simple, self-deceptive, if we may use such an expression with reference to a legislature made law. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impair any vested right acquired under existing laws but since the laws are made under a written Constitution, and have to conform to the do's and don'ts of the Constitution, neither prospective nor retrospective laws can be made so as to contravene fundamental rights. The law must satisfy the requirements of the Constitution today taking into account the W.P.(C).Nos. 33434 & 36240 of 2009 11 accrued or acquired rights of the parties today. The law cannot say, twenty years ago the parties had no rights, therefore, the requirements of the Constitution will be satisfied if the law is dated back by twenty years. We are concerned with today's rights and not yesterday's. A legislature cannot legislate today with reference to a situation that obtained twenty years ago and ignore the march of events and the constitutional rights accrued in the course of the twenty years. That would be most arbitrary, unreasonable and a negation of history.” In Sri Vijayalakshmi Rice Mills, etc. v. State of A.P. (AIR 1976 SC 1471), the relevant principles were delineated thus: “It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issue and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force.” It is clear therefrom that unless there are express words or appropriate words leading to an inference regarding retrospectivity, a notification will take effect from the date on which it was issued. 14. Meerankhan v. State of Kerala (2007 (4) KLT 430) is the decision of a learned Single Judge of this Court, wherein the question W.P.(C).Nos. 33434 & 36240 of 2009 12 considered was the actual date on which the notification introducing a rule could be deemed to have come into force. The true effect of the words “at once” was the subject matter of consideration. It has been held thus: “When the rule making authority indicates that it is to come into force at once, it must be taken to mean that the words “at once” must be understood from the perspective of the rule making authority, making the rule. Therefore, the intention of the rule making authority must be taken to be that it is to come into effect immediately. It must be taken to be a case where the rule making authority has indicated by employment of the words “it shall come into force at once” that upon publication it will take effect from the date of its issuance.” 15. The Apex Court has examined the question whether a vested right can be divested except by a retrospective and valid law. The consensus is that a vested right cannot be divested. 16. In Hitendra Vishnu Thakur and others v. State of Maharashtra and others {(1994) 4 SCC 602}, the cases of amending Acts and its retrospective operation and the principles governing the same have been laid down in para 26 in the following words: “From the law settled by this Court in various cases the illustrative though not exhaustive principles which emerge with regard to the W.P.(C).Nos. 33434 & 36240 of 2009 13 ambit and scope of an Amending Act and its retrospective operation may be culled out as follows: (i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.” 17. In a later case, viz. Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar and others {(1999) 8 SCC 16}, the situation wherein an existing provision was substituted by another and the retrospective operation, if any, of the said provision was considered. While considering so, their Lordships reiterated the view taken in Garikapati W.P.(C).Nos. 33434 & 36240 of 2009 14 Veeraya v. N. Subhiah Choudhry (AIR 1957 SC 540), which is in the following terms: “The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed.” In para 24, the principles discernible from Francis Bennion's Statutory Interpretation have been quoted which reads thus: “The essential idea of a legal system is that current law should govern current activities. Elsewhere in this work a particular Act is likened to a floodlight switched on or off, and the general body of law to the circumambient air. Clumsy though these images are, they show the inappropriateness of retrospective laws. If we do something today, we feel that the law applying to it should be the law in force today, not tomorrow's backward adjustment of it. Such, we believe, is the nature of law. Dislike of ex post facto law is enshrined in the United States Constitution and in the Constitutions of many American States, which forbid it. The true principle is that lex prospicit non respicit (law looks forward not back). As Willies, J. said, retrospective legislation is 'contrary to the general principle that legislation by which the conduct of mankind is to be regulated ought, when introduced for the first time, to deal with future acts, and ought not to change the W.P.(C).Nos. 33434 & 36240 of 2009 15 character of past transactions carried on upon the faith of the then existing law.” In para 25, the tests laid down in Hitendra Vishnu Thakur and others' case {(1994) 4 SCC 602}, were extracted. The contention that the Amending Act was retrospective, is met in para 26 in the following words: “26. We are unable to accept the contention of the respondent State that Section 6 of the amending Act of 1974 is retrospective. In sub-section (2) of Section 1 the legislature clearly stated that the Act would come into force at once i.e. from the date of publication in the Gazette. Neither in Section 6 nor in any other section of the amending Act was it mentioned that the Act would have retrospective effect. If we hold that the Act would have retrospective effect it would go against the intention of the legislation.” Finally, in para 29, the contention raised regarding retrospectivity in respect of legislation by substitution, was also repelled in the following words: “29. The contention of the learned counsel, Mr.Agrawal in respect of legislation by substitution has no force inasmuch as the same rule of construction has to be applied while dealing with such a legislation. We may also refer to the decision of this Court in Union of India v. C.Rama Swamy. In this case a new rule namely Rule 16-A was inserted in the All India Services (Death-cum-Retirement Benefits) Rules, 1958. In respect of this substituted rule this Court held that the effect of a rule being substituted by a new rule clearly W.P.(C).Nos. 33434 & 36240 of 2009 16 was that the old rule which stood substituted, could under no circumstances have any application at least from the date when it ceased to exist.” 18. Thus, even in the case of a provision which substitutes the former one, the same tests will have to be applied. In K.S. Paripoornan v. State of Kerala (1994 (2) KLT 763 (SC), their Lordships considered the effect of retrospectivity of the provisions of Section 23 (1A) of the Land Acquisition Act. In paragraphs 71 and 72, the following principles were laid down: “71. A statute dealing with substantive rights differs from a statute which relates to procedure or evidence or is declaratory in nature inasmuch as while a statute dealing with substantive rights is prima facie prospective unless it is expressly or by necessary implication made to have retrospective effect, a statute concerned mainly with matters of procedure or evidence or which is declaratory in nature has to be construed as retrospective unless there is a clear indication that such was not the intention of the legislature. A statute is regarded as retrospective if it operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. By virtue of the presumption against retrospective applicability of laws dealing with substantive rights transctions are neither invalidated by reason of their failure to W.P.(C).Nos. 33434 & 36240 of 2009 17 comply with formal requirements subsequently imposed, nor open to attack under powers of avoidance subsequently conferred. They are also not rendered valid by subsequent relaxations of the law, whether relating to form or to substance. Similarly, provisions in which a contrary intention does not appear neither impose new liabilities in respect of events taking place before their commencement, nor relieve persons from liabilities then existing, and the view that existing obligations were not intended to be affected has been taken in varying degrees even of provisions expressly prohibiting proceedings. 72. These principles are equally applicable to amendatory statutes. According to