Case: Kavalappara Kottarathil Kochunnimoopil Nayar Vs. The State Of Madras And Others(And Connected Petition)

is quite clear to us that that by itself does not make the Act a thing done in the exercise of judicial power. The legislature has the power to give retrospective operation to an Act. That of course interferes with vested rights but the legislature can interfere with such rights in the exercise of its legislative power.That is not adjudicating between parties affected by the Act. It is laying down the law to be followed by Courts in future. It is so nonetheless that the law is altered as from a past date. 78. Then it is said that the Act provides that it is to have effect notwithstanding any decision of the Court contrary to its provisions. That the Act no doubt does. Can it be said that it thereby adjudicates and not legislates? In Piare Dusadh v. Emperor, 1944-6 FCR 61: (AIR 1944 FC 1), it was pointed out that in India the legislature very often in the enactments that it makes sets aside decisions of Courts. In America a rule appears to obtain that "Legislative action cannot be made to retract on past controversies and so reverse decisions which the courts in the exercise of their undoubted authority have made": Cooleys Constitutional Limitation, 8th Ed. p.190. It was held in Piare Dusadhs case, 1944-6 FCR 61: (AIR 1944 FC 1), at p. 104 (of FCR): (at p. 9 of AIR) that this rule had no application in India. the observation there made may be set out:-"It is clear from the American authorities that this limitation has been derived from the interpretation placed by the American courts on what are known as the Fifth and fourteenth Amendments which provide against any person being "deprived of life, liberty or property without due process of law". The expression "due process of law" has been interpreted as referring only to "judicial process" and as not including legislation,........ As the requirement had been made part of the written constitution, it followed that no enactment passed by a legislature limited by that constitution could authorise anything in violation of it........... Hence the rule (stated by Cooley) that "it would be incompetent for the legislature, by retrospective legislation, to make valid any proceedings which had been had in the courts but which were void for want of jurisdiction over the parties. The constitutional position in India is different." 79. It seems to us that this observation of the Federal Court which no doubt was made with reference to the Government of India Act, 1935 applies with equal force to the position obtaining under our Constitution. It has been held by this Court that there is no scope under our Constitution for the application of the American concept of "due process of law". The American cases cited in support of the contention that a legislation cannot override judicial decisions therefore afford no assistance in our country. Article 31B Itself provides that it would apply notwithstanding any judgment, decree or order of any court to the countrary and it had been enacted by an Act passed by the Parliament. There have been many Acts passed since the Constitution came into force which contained similar provisions. In no case has it ever been contended that such an Act amounted to an exercise of the judicial function by the legislature. The Act before us lays down a law to be applied by courts in future in the adjudication of disputes between parties. It also says that the courts shall apply the law notwithstanding that there is an earlier decision on the rights of the parties which are being litigated upon in a subsequent proceeding. 80. The Act does not itself annul any decision of any court. All that it says is that the law laid down is to be applied by courts irrespective of any previous decision. It does not in any sense adjudicate between parties. It, therefore, seems to us that the contention that the impugned Act is really an exercise of judicial power is ill-founded. 81. In our view, the challenge brought against the impugned Act fails. Petition No. 443 of 1955 should therefore be dismissed with costs. 82. Coming now to the Petition No. 40 of 1956 the petitioners here are the wife and the 2 daughters of the petitioner in Petition No. 443 of 1955. The respondents are the junior members of the tarwad as also the Moopil Nayar. The petitioners claim as donees from the Moopil Nayar to be entitled to the sthanam lands in the Palghat area. It is not necessary for us to decide whether the petitioner in Petition No. 443 of 1955 had the right to make the gift in favour of his wife and daughters. That question has not been gone into by consent of the parties. If the gift is valid then what we have said earlier in connection with Petition No. 443 of 1955, will apply to this petition also and is must for the same reason fail. If the gift is invalid, the petition must fail on the ground that the Act has not affected the petitioners rights in any lands held by them. We would therefore dismiss that petition with costs except the costs of the hearing before us for all the 3 petitions were heard together. 83. Lastly, we come to Petition No. 41 of 1956. This petition must clearly be dismissed. It was filed by the son of the petitioner in Petition No. 443 of 1955 claiming to be entitled to the sthanam land situate in an area which was formerly part of the Cochin State. It is not in dispute that the impugned Act was never extended to that area. Therefore, whether the gift to him was valid or not, as to which we say nothing, the petitioner in this petition is not affected by that Act at all. His petition is clearly misconceived. His petition is therefore dismissed and he will pay the costs excepting the costs of the hearing. Order

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The object of the amendment relevant to the present enquiry was only to enable the State to implement its next objective in the land reform, namely, the fixing of limits to the extent of agricultural lands that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings.The object was, therefore, to bring about a change in the agricultural economy but not to recognize or confer any title in the whole or a part of an estate on junior members of a family19. The impugned Act does not purport to modify or extinguish any right in an estate. The avowed object of it is only to declare particular sthanams to be Marumakkathayam tarwards and the property pertaining to such sthanamas as the property of the said tarward. It declares particular sthanamas to have always been tarward and their property to have always been tarward property. The result is that the sole title of the sthanee is not recognised and the members of the tarward are given rights therein. The impugned Act does not effectuate any agrarian reform and regulate the rights inter se between landlords and tenants. We, therefore, hold that the respondents cannot rely upon Art. 31A to deprive the petitioner of his fundamental rightsIt is, therefore, manifest that the law must satisfy two tests before it can be a valid law, namely, (1) that the appropriate legislature had competency to make the law; and (2) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution. It follows that the law depriving a person of his property will be an invalid law if it infringes either Art. 19 (1) (f) or any other Article of Part IIIThe views of the learned Judges may be broadly summarised under three heads, viz., (1) to invoke Art. 19 (1), a law shall be made directly infringing that right; (2) Arts. 21 and 22 constitute a self-contained code; and (3) the freedoms in Art. 19 postulate a free man. On the basis of the said theories, this Court, with Fazl Ali, J., dissenting, rejected the plea that a law made under Art. 21 shall not infringe Art. 19 (1). Had the question been res integra, some of us would have been inclined to agree with the dissenting view expressed by Fazl Ali, J.; but we are bound by this judgment.Even so there is no analogy between Art. 21, as interpreted by this Court, and Art. 31 (1). Article 21 deals with personal liberty. Personal liberty, Kania, C. J., observed, includes, "the right to eat or sleep when one likes or to work or no to work as and when one pleases and several such rights" and "deprivation of such liberty", in the words of the learned Chief Justice, "is quite different from restriction (which is relatively a minor right of a citizen)". "Personal Liberty" is a more comp enensive concept and has a much wider connotation than the right conferred under Art, 19 (1) (d). Articles 19(1)(d). and 22 deal with different subjects, whereas both Arts. 19 (1) (f) and 31 (1) deal with the same subject, namely, property; while under Art. 19 (1) (f), a citizen has the right to acquire, hold and dispose of property, Art. 31 (1) enables the State to make a law to deprive him of that property. Such a law directly infringes the fundamental right given under Art. 19 (1) (f). Further, Arts. 21 and 22 are linked up together; while Art. 21 enables the State to deprive a person of his life or personal liberty according to the procedure established by law, Art. 22 prescribes certain procedure in respect of both punitive and preventive detention. They constitute an integrated code in the matter of personal liberty. On the other hand, Art. 31 (1), by reason of the amendment, ceases to be part of the guarantee against acquisition or requisition of property without the authority of law, and must therefore be construed on its own terms26. The said Articles are not in pari materia and they differ in their scope and content. There is material difference not only in the phraseology but also in their setting. Article 19, therefore, cannot be construed on the basis of the construction placed upon Art. 2131. We find it also very difficult to accept the second and third aspects of the approach to the question. The duty of this Court is only to interpret the provisions of the Constitution in a liberal spirit, but not to eradicate or modify the fundamental rights. That apart, our Constitution-makers thought otherwise. The Constitution declares the fundamental rights of a citizen and lays down that all laws made abridging or taking away such rights shall be void. That is a clear indication that the makers of the Constitution did not think fit to give our Parliament the same powers which the Parliament of England has. While the Constitution contemplates a welfare State, it also provides that it should be brought about by the legislature subject to the limitations imposed on its power. If the makers of the Constitution intended to confer unbridled power on the Parliament to make any law it liked to bring about the welfare State, they would not have provided for the fundamental rights. The Constitution gives every scope for ordered progress of society towards a welfare State. The State is expected to bring about a welfare State within the framework of the Constitution, for it is authorized to impose reasonable restrictions, in the interests of the general public, on the fundamental rights recognized in Art. 19. If the interpretation sought to be placed on Art. 31 (1) was accepted, it would compel the importation of the entire doctrine of police power and grafung it in Article 31 (1) or the recognition of arbitrary power in the legislature with the hope or consolation suggested that our Parliament and legislatures may be trusted not to act arbitrarily. The first suggestion is not legally permissible and the second does not stand to reason, for the Constitution thought fit to impose limitations on the power of the legislatures even in the case of lesser infringements of the rights of a citizen33. We, therefore, hold that a law made depriving a citizen of his property shall be void, unless the law so made complies with the provisions of cl. (5) of Art. 19 of the Constitution47. To summarize : The origin of the sthanam is lost in antiquity.It primarily means a dignity and denotes the status of the senior Raja in a Malabar Kovilgom or palace. It is surmised that sthanams were also created by the Rajas by giving certain properties to military chieftains and public officers and also by tarwads creating them and allocating certain properties for their maintenance. Most of the incidents of a sthanam are well settled. Usually the seniormost male member of the family and occasionally a female member attains a sthanam. Properties are attached to the sthanam for the maintenance of its dignity. The legal position of a sthanee is equated to that of a Hindu widow in that he represents the estate for the time being and he can alienate the properties for necessity or for the benefit of the estate. Unlike a Hindu widow, the successor to a sthanee is always a life-estate-holder. In that respect his position is more analogous to an impartible estate-holder. He ceases to have any present interest in the tarwad properties. Like a Hindu widow or an impartible estate-holder, he has an absolute interest n the income of the sthanam properties or acquisitions therefrom. His position is approximated to a member separated from the family and that the members of the tarwad succeed to his acquisition unless accreted to the estate and he succeeds to the tarwad properties, if the tarwad becomes extinct. Questions like what would happen if there is no male heir to a sthanam at any point of time - whether the properties pertaining to the sthanam would escheat to the State or devolve upon the members of the tarwad or whether a subsequent birth of a male heir would revive the sthanam - are raised by Sundara Aiyar in his book, but there is a decision of the Madras High Court where in the case of Punnathood family a subsequent born male heir was given a decree for the possession of the properties of a sthanam. On the question whether a sthanam property, not being the property of a member of a tarwad, be blended with the property of the tarwad so as to make it a tarwad property, there is no direct decision. On principle if the sthanee, on attaining the sthanam is in the position of a separated member of a Hindu family, there may not be any scope for the application of the doctrine of blending. No member of a tarwad has any right to maintenance from out of the sthanam properties and the mere fact that a sthanee for the time being, out of generosity or otherwise, gives maintenance to one or other members of the tarwad cannot legally have the effect of converting the sthanam property into a tarwad property; nor the fact that the sthanam properties are treated as tarwad properties can have such a legal effect49. With this background let us look at the terms of the Act to see what it purports to do. What is the effect of the impugned Act? It is not the form that matters but the substance of it in its operation on the vested rights of citizens. The Act destroys the finality of decrees of Courts establishing the title of janmies to the sthanam properties. It affects the undisputed title of sthanees in sthanam properties, though they may not have obtained decrees in respect thereof. If statutorily confers title retrospectively on the members of the tarwad who had none before. It arbitrarily dislocates the title of particular sthanees in respect of certain sthanam with particular characteristics, which have no relation to the title of the sthanees. The first characteristic mentioned in the impugned Act is that there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad. If the word "intermingling" conveys only the idea of mere factual mixing up of the sthanam properties with the tarwad properties, it cannot, by any known legal notion of Marumakkathayam Law or on any analogy drawn from Hindu Law, convert the sthanam property into the tarwad property. Even if it is understood in the sense of blending, the sthanee, who ceases to be a member of the tarwad and is in a position of a separated member, cannot legally blend his property with that of the tarwad, for the legal concept of blending implies that the person who blends his property with that of the family is an undivided member of the family50. The second characteristic mentioned in the impugned Act is that the members have been receiving maintenance from properties purporting to be sthanam properties as of right or in pursuance of custom or otherwise. This characteristic is foreign to the concept of sthanam. No member of a tarwad is entitled as of right to any maintenance from out of properties of the sthanam. Under this clause, if maintenance is so received, the sthanam is deemed to be a tarwad on the basis that the receipt of maintenance from the sthanee out of the sthanam property brings about the said result. If a sthancee creates any such right a favour of a tarwad, it may bind him, but it cannot certainly be binding on the sthanam properties or its successor. If may custom be established on evidence, it may become an incident of the sthanam, but it cannot obliterate or extinguish it or convert it into a tarwad. The word "otherwise" in the context, it is contended, must be construed by applying the rule of ejusdem generis.The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary.On the basis of this rule, it is contended, that the right or the custom mentioned in the clause is a distinct genus and the words "or otherwise" must be confined to things analogous to right or contract such as lost grant, immemorial user etc.It appears to us that the word "otherwise" in the context only means "whatever may be the origin of the receipt of maintenance". One of the objects of the legislation is to by-pass the decrees of courts and the Privy Council observed that the receipt of maintenance might even be out of bounty.It is most likely that a word of the widest amplitude was used to cover even acts of charity and bounty. If that be so, under the impugned Act even a payment of maintenance out of charity would destroy the character of an admitted sthanam which ex facie is expropriatory and unreasonable51. Nor does the third characteristic embody an unimpeachable test of the extinction of a sthanam or the conversion of the same into a tarwad. Under the impugned Act, if there had been at any time a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam the sthanam would be deemed to be a tarwad. Not only there is no justification for enacting that non-existence of such a male heir at any point of time should put an end to the character of the sthanam, but the only decided case of the Madras High Court on the point recognized the right of a subsequently born male member in a tarwad to succeed to the sthanam and its properties52. Therefore, the three tests laid down by the impugned Act to enable the drawing of the statutory fiction are not only not germane but extraneous to the object sought to be achieved57. We declare that Madras Act 32 of 1955 is void and ultra vires the Constitution and issue a writ of mandamus restraining the State of Kerala from enforcing the provisions of the said Act against the petitioner and his sthanams.