judgement:
iminal Appeal No. 42 of 1955.
On Appeal by Special leave from the Judgment and Order dated the 8th October 1954 of the Bombay High Court in Criminal Appeal No. 315 of 1954 arising out of the Judgment and Order dated the 6th January 1954 of the Court of the 4th Presidency Magistrate, Bombay in Cases Nos.
639 40/P 1955.
H. J. Umrigar, J. B. Dadachanji and Rajinder Narain for the appellant.
Porus A. Mehta and P. G. Gokhale for the respondent.
October 14.
The Judgment of the Court was delivered by BHAGWATI J.
The accused No. 1, the Appellant before us, and accused Nos. 2, 3 and 4 were charged that they, at Bombay, between about June 1950 and November 1950, were parties to a criminal conspiracy by agreeing to do certain illegal acts, to wit: Firstly, 882 that they used as genuine forged bills of entry which included bills of entry Exhibit Z; Secondly, that they ,heated the Deputy Chief Controller of Imports, Bombay, by fraudulently I and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 248189/48 to import cycles from United Kingdom of the value of Rs. 1,98,960; Thirdly, that they cheated the Deputy Chief Controller of Imports, Bombay, by falsely and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 203056/48 to import watches from Switzerland of the value of Rs. 3,45,325; and Fourthly, that they cheated the Deputy Chief Controller of Imports, Bombay, by fraudulently and dishonestly inducing him to deliver to the firm of J. Sobhraj & Co., an import licence bearing No. 250288/48 to import artificial silk piece goods from Switzerland of the value of Rs. 12,11,829; and the above said illegal acts were done in pursuance of the said agreement and that they thereby committed an offence punishable under section 120 B of the Indian Penal Code.
There were also charges against all the accused under section 471 read with section 465 and section 34 and also under section 420 read with section 34 of the Indian Penal Code in respect of each of the three illegal acts aforesaid.
The learned Presidency Magistrate, 23rd Court, Esplanade, Bombay, tried all the accused for the said offences and acquitted all of them.
The State of Bombay thereupon took an appeal to the High Court of Judicature at Bombay, and the High Court reversed the acquittal of accused No. I and held him guilty of all the offences with which he had been charged including the offence under section 120 B of the Indian Penal Code.
The acquittal of accused 2, 3 and 4 was confirmed.
The High Court, even though it acquitted accused 2) 3 and 4 of the charge under section 120 B of the Indian Penal Code, was of the opinion that the deed of assignment put forward by the accused No. I in his defence was a false and fabricated document and the ,said document along with its accompaniments was 883 forged or was got forged by or with the knowledge or connivance of the accused No. 1 and his co conspirators and it was impossible to believe that this conspiracy carried out with such meticulous care could be the work of only accused No. 1.
There was no evidence on the record to warrant any inference that the accused No. I was acting in the matter in collaboration with any other 'co conspirators and the only evidence was in regard to the various acts alleged to have been done by accused 2, 3 and 4 in the matter of the conspiracy and the furtherance of the objects thereof While considering the question of sentence to be passed on the accused No. 1 who, in spite of the circumstances aforesaid, was convicted of the offence under section 120 B of the Indian Penal Code, the High Court observed that "the conspirators, whoever they were, had shown considerable ingenuity and daring in carrying out the object of the conspiracy and that it felt no hesitation in Coming to the conclusion that it was not straitened circumstances or financial difficulties which were the basis of the conspiracy but it was the greed for money on such a large scale as could never be regarded as an extenuating circumstance".
It, therefore, directed that the accused No. I should undergo rigorous imprisonment for 18 months for the offence under section 120 B of the Indian Penal Code.
The application for leave to appeal to this Court filed by accused No. 1 was rejected by the High Court.
The accused No. 1 thereupon applied for and obtained special leave to appeal against the decision of the High Court.
The special leave was, however, limited to the question of law, whether the conviction under section 120 B is maintainable in view of the fact that the other alleged conspirators had been acquitted.
The charge as framed under section 120 B of the Indian Penal Code was levelled against 4 named individuals, the accused Nos. 1) 2, 3 and 4.
It was not a charge against them and other persons unknown with the result that if accused 2, 3 and 4 were acquitted of that charge, there remained only accused No. 1 and 112 884 the question, therefore, arises for our consideration whether, under the circumstances, the accused No. I could be convicted of the offence under section 120 B of the Indian Penal Code.
Criminal conspiracy has been defined in section 120 A of the Indian Penal Code: "When two or more persons agree to do or cause to be done (i) an illegal act, or (ii) an act which is, not illegal by illegal means, such an agreement is designated a criminal conspiracy".
By the terms of the definition itself there ought to be two or more persons who must be parties to such an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.
If, therefore, 4 named individuals were charged with having committed the offence under section 120 B of the Indian Penal Code, and if three out of these 4 were acquitted of the charge, the remaining accused, who was the accused No. 1 in the case before us, could never be held guilty of the offence of criminal conspiracy.
If authority for the above proposition were needed, it is to be found in Archbold 's Criminal Pleading, Evidence and Practice, 33rd edition, page 201, paragraph 361: "Where several prisoners are included in the same indictment, the jury may find one guilty and acquit the others, and vice versa.
But if several are indicted for a riot, and the jury acquit all but two, they must acquit those two also, unless it is charged in the indictment, and proved, that they committed the riot together with some other person not tried upon that indictment.
2 Hawk.
c. 47.
section 8.
And, if upon an indictment for a conspiracy, the jury acquit all the prisoners but one, they must acquit that one also, unless it is charged in the indictment, and proved, that he conspired with some other person not tried upon that indictment.
2 Hawk.
c. 47.
section 8; 3 Chit.
Cr. L., (2nd ed.) 1141; R. vs Thompson, ; R. vs Manning, 12.
Q.B.D. 241; R. vs Plummer The King vs Plummer ([1902] 2 K.B. 339) which is 885 cited in support of this proposition was a case in which, on a trial of indictment charging three persona jointly with conspiring together, one person had pleaded guilty and a judgment passed against him, and the other two were acquitted.
It was held that the judgment passed against one who had pleaded guilty was bad and could not stand.
Lord Justice Wright observed at page 343: "There is much authority to the effect that, if the appellant had pleaded not guilty to the charge of conspiracy, and the trial of all three defendants together had proceeded on that charge, and had resulted in the conviction of the appellant and the acquittal of the only alleged co conspirators, no judgment could have been passed on the appellant, because the verdict must have been regarded as repugnant in finding that there was a criminal agreement.
between the appellant and the others and none between them and him: see Harrison vs Errington (Popham, 202), where upon an indictment of three for riot two were found not guilty and one guilty, and upon error brought it was held a "void verdict", and said to be "like to the case in 11 Hen.
4, c. 2, conspiracy against two, and only one of them is found guilty, it is void, for one alone cannot conspire".
" Lord Justice Bruce at page 347 quoted with approval the statement in the Chitty 's Criminal Law, 2nd ed., Vol.
III, page 1141: "And it is holden that if all the defendants mentioned in the indictment, except one, are acquitted, and it is not stated as a conspiracy with certain persons unknown, the conviction of the single defendant will be invalid, and no judgment can be passed upon him".
The following observations made by Lord Justice Bruce are apposite in the context before us: "The point of the passage turns upon the circumstance that the defendants are included in the same indictment, and I think it logically follows from the nature of the offence of conspiracy that, where two or more persons are charged in the same indictment with conspiracy with another, and the indictment 886 contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person, whether he has been convicted by the verdict of a jury or upon his own confession, because, as the record of conviction can only be made up in the terms of the indictment, it would be inconsistent and contradictory and so bad on its face.
The gist of the crime of conspiracy is that two or more persons did combine, confederate, and agree together to carry out the object of the conspiracy".
This position has also been accepted in India.
In Gulab Singh vs The Emperor (A.I.R. 1916 All. 141) Justice Knox followed the case of The King vs Plummer, supra, and held that "it is necessary in a prosecution for conspiracy to prove that there were two or more persons agreeing for the purpose of conspiracy" and that "there could not be a conspiracy of one".
To similar effect was the judgment in King Emperor vs Osman Sardar (A.I.R. where Chief Justice Sanderson observed that "the gist of an offence under section 120 B was an alleged agreement between the two accused and when the jury found that one of them was not a party to the agreement and acquitted him of that charge, it followed as a matter of course that the other accused could not be convicted of that charge.
The assent of both of them was necessary to constitute the agreement which was the basis of the charge".
Ratanlal in his Law of Crimes, 18th ed., page 270, has summarised the position as it emerges from the above two cases in the manner following: "Where, therefore, three persons were charged with having entered into a conspiracy, and two of them were acquitted, the third person could not be convicted of conspiracy whether the conviction be upon the verdict of a jury or upon his own confession".
The position in law is, therefore, clear that on the charge as it was framed against the accused Nos. 1, 2 3 and 4 in this case, the accused No. I could not 887 be convicted of the offence under section 120 B of the Indian Penal Code when his alleged co conspirators accused 2, 3 and 4 were acquitted of that offence.
In our opinion, therefore, the conviction of the accused No. I of the charge under section 120 B of the Indian Penal Code was clearly illegal.
The appeal of the accused No. 1 will, therefore, be allowed to the extent that his conviction under section 120 B of the Indian Penal Code and the sentence of rigorous imprisonment of 18 months awarded to him as the result thereof would be quashed.
We are not concerned here with the conviction of the accused No I of the offences under section 471 read with section 465 and also his conviction for each of the three offences under section 420 of the Indian Penal Code and the concurrent sentences of rigorous imprisonment for one year in respect of each of them passed by the lower Courts upon him in regard to the same.
These convictions and sentences will of course stand.

summary/full:
According to the definition of criminal conspiracy in section 120 A ' of the Indian Penal Code two or more persons must be patties, to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself.
Where, therefore, 4 named individuals as in the present case eye charged with having committed an offence under section 120 .B.
I.P.C. and three out of those four were acquitted of the charge, the fourth accused could not be held guilty of the offence of criminal conspiracy.


judgement:
Appeal Nos. 1577 and 1579 of 1971.
Appeal from the judgment and Orders dated 23 3 1971 and 22 4 1971 of the Madras High Court in Writ Petitions Nos.
1088/70 and 1316/71.
K. Srinivasan, I. Subramaniam and (Mrs.) section Gopalakrish nan for the Appellants.
K. Purasaran, Advocate General for the State of Tamil Nadu, A. V. Rangam and (Miss) A. Subhashini for the Respond ents.
The Judgment of the Court was delivered by KHANNA, J.
These appeals by special leave are against the judgment of Madras High Court whereby, that court re pelled the challenge to the validity of items 7(a) and 7(b) of the Second Schedule to the Madras General Sales Tax Act, 1959 (hereinafter referred to as the State Act).
The appellants are dealers in hides and skins.
The appellants purchase raw hides and skins locally as well as in the course 'of interState trade and commerce.
The raw hides and skins are converted into dressed hides and skins and are sold either locally or.
in the course of export.
The matter relates to the assessment year 1968 69 and the dispute between the parties arises because of the inclusion in the turnover of the sale and purchase price of some of the above goods.
The appellants by means of writ petitions challenged the validity of items 7(a) and 7(b) of the Second Schedule to the State Act.
The High Court, as already mentioned, repelled the attack on the validity of those items and dismissed the.
writ petitions.
Before dealing with the contentions advanced, it may be appropriate to refer to the relevant provisions.
Section 4 of the State Act is the charging section in respect of declared goods and reads thus: "Tax in respect of declared goods.
Notwithstanding anything contained in section 3, the tax under this Act shall be payable by a dealer on the sale or purchase inside the State of declared goods at the rate and only at the point specified against each in the second schedule of the turnover in such goods in each year, whatever the quantum of turnover in that year.
" 1067 It may be mentioned that raw hides and skins as well as dressed hides and skins are declared goods under section 14(if) of the (hereinafter referred to as the Central Act).
Section 14(iii) of the Central Act reads as under: " 'It is hereby declared that the following goods are of special importance in inter State trade or commerce: . . . . . . . . . . . . (iii) hides and skins, whether in a raw or dressed state.
" Items 7(a) and 7(b) of the Second Schedule to the State Act and read as under: Items 7(a) and 7(b) of the Second Schedule to the State Act read as under : "section No. Description of goods Point of levy Rate of tax 1 2 3 4 7(a) Raw hides and skins At the point of 3 last chase in the State.
7(b) Dressed hides and At the point of 1 1/2 skins (which were 1st sale in the not subjected to State.
tax under this Act as raw hides and skins) ,, So far as validity of item 7(a) of the Second Schedule is concerned, the argument of the learned counsel for the appellant is that this would cover also inter State sales and as such is beyond the competence of the State legisla ture.
We are unable to accede to this contention as we are of the view that item 7(a) relates only to interState sales and not to inter State sales.
This is clear from the lan guage used in the item, especially the words "purchase in the State".
Assuming that the language of item 7(a) is ambiguous, it should be so construed as would sustain the constitutional validity of the said item.
Considered in this light the occasion.
for the levy of tax under the above item would arise only when there is intra State sale and not inter State sale.
Regarding from 7(b), the learned counsel for the appel lants has contended that it is violative of clause (a) article 304 of the Constitution.
The said clause reads as under: "304.
Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law (a) impOse on goods imported from other States or the Union Territories any tax to which. similar foods manufactured or pro duced in that State are subject, so, however, as not to discriminate between goods 18 1338sci/76 1068 so imported and goods so manufactured or produced; and (b) . . . .
According to 'the learned counsel, 'there can be three types of sale transactions in respect of dressed hides and skins: (1 ) Dressed hides and skins imported from outside the State of Tamil Nadu.
Tanning of the aforesaid (2) Import of raw hides and skins from out side the State of Tamil Nadu and sold within that State; raw hides and skins within the State of Tamil Nadu and the sale of the same within that State as dressed hides and skins; and (3) Purchase of raw hides and skins within the State of Tamil Nadu and sale of the same within that State as dressed hides and skins after tanning those hides and skins.
It is urged that in respect of hides and skins covered by the third category, the local sales of dressed hides and skins will not be liable to tax under 'State Act as the purchase of the raw hides and skins has already been sub jected to tax under item 7(a).
Regarding hides and skins mentioned at (1) and (2) above, the local sales of dressed hides and skins would be subjected to tax at the rate of 1 1/2 per cent under item 7(b) as there was no levy of tax under the State Act in respect of those hides and skins.
Learned counsel accordingly concludes from the above that imported hides and skins are subject to tax when sold as dressed hides and skins at the rate of 11/2 per cent, whereas hides and skins purchased in raw form locally and dressed thereafter are not subject to tax under the State Act when sold as dressed hides and skins.
The contention, mother words, is that whereas dressed hides and skins sold locally but which have been made out of imported raw hides and skins are subject to tax, similar sales of dressed hides and skins made out of raw hides and skins which have suffered tax at purchase stage are not subject to tax under item 7(b) of the Second Schedule of the State Act.
Item 7(b) is therefore stated to be discriminatory and violative of article 304(a).
Reliance in this connection is placed upon two decisions of this Court in the cases of Firm A.T.B. Mehtab Majid & Co. vs The State of Madras & Anr.
(1) and A. Hajee Abdul Shukoor & Co. vs The State of Madras.(2) In the case of Mehtab this Court held that the provi sions of rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939 discriminate between hides and skins imported from outside the State and those manufac tured or produced inside the State and therefore they con travene the provisions of article 304(a) of the Constitu tion.
Perusal of the facts of that case goes to show that the real grievance of the appellant in that case was that though there was a substantial disparity in the price of raw hides and skins and the price of dressed hides and skins, the same rate of tax was levied (1) 14 S.T.C. 355.
(2) 15 S.T.C. 719.
1069 in respect of both types of hides and skins under section 3(1) (b) of the State Act.
This is clear from the following observations in that case: "The grievance arises on account of the amount of tax levied being different on ac count of the existence of a substantial dis parity in the price of the raw hides or skins and of those hides or skins after they had been tanned, though the rate is the same under section 3(1) (b) of the Act.
If the dealer has purchased the raw.
hides or skin in the State, he does not pay on the sale price of the tanned hides or skins he pays on the purchase price only.
If the dealer purchases raw hides or skins from outside the State and tane them within the State, he will be liable to pay sales tax o, the sale price of the tanned hides or skins.
" In the case of Hajee Abdul Shukoor this Court held that Subsection (1) of section 2 of the Madras General Sales Tax (Special Provisions) Act, 1963 discriminates against imported hides and skins which were sold up to August 1, 1957.
The rate of tax on the sale of tanned hides and skins, as would appear from that judgment, was "2 per cent on the purchase price of those hides and skins in the untanned condition, while the rate of tax on the sale of raw hides and skins in the State during 1955 to 1957 is 3 pies per rupee".
The Court in this context referred to Mehtab 's case and observed: "In the earlier case, discrimination was brought about on account of sale price of tanned hides and skins to be higher than the sale price of untanned hides and skins, though the rate of tax was the same, while in the present case, the discrimination does not arise on account of difference of the price o.n which the tax is levied as the tax on the tanned hides and skins is levied on the amount for which those hides and skins were last purchased in the untanned condition, but on account of the fact that the rate of tax the sale of tanned hides and skins is higher than that on the sale of untanned hides and skins.
The rate of tax on the sale of tanned hides and skins is 2% on the purchase price of these hides and skins in the untanned condition while the rate of tax on the sale of raw hides and skins on the State during 1955 to 1957 is 3 pies per rupee.
The difference in tax works out to 7/1600th of a rupee, i.e., a little less than 1/2 naya paise per rupee.
Such a discrimination would affect the taxation up to the 1st of August, 1957, when the rate of tax on the sale of raw hides and skins was raised to 2% of the sale price.
" None of the circumstances which led this Court to strike down the relevant provisions in the above mentioned two cases exists in the present case.
In Mehtab 's case discrimi nation was found to exist because of the fact that tax was being levied at the same rate in respect of both raw hides and skins ' as well as dressed hides and skins, even though 1070 the price of dressed hides and skins was much higher.
The position was worse in the vase of Hajee Abdul Shukoor be cause in that case the sales tax was found to have been charged at a higher fate in respect of dressed hides and skins than that on the sale of raw hides and skins in spite of the fact that the price of dressed hides and skins was higher than that of raw hides and skins.
The position in the present case is materially different, for here the rate of sales tax for raw hides and skins is 3 per cent, while that for dressed hides and skins is 11/2 r cent.
It is plain that the lower rate of tax in the case of dressed hides and skins has been prescribed with a view to offset the difference between the higher price of dressed hides and skins and lower price of raw hides and skins.
No mate rial has been brought on the record to show that despite the lower rate of sales tax for dressed_ hides and skins, the imported hides and skins are being subjected to discrimina tion.
The onus to show that there would be discrimination between the hides and skins which were purchased locally in the raw form and thereafter tanned and the hides and skins which were imported from other States was upon the appel lant.
The appellant, we find, has failed to discharge such onus.
Article 304(a) does not prevent levy of tax on goods; what it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other States and similar goods manufactured or produced within the State.
The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the differ ence between the two rates would constitute a tariff wall or fiscal barrier and thus impede the free flow of inter State trade and commerce.
The question as to when the levy of tax would constitute discrimination would depend upon a variety of factors including the rate of tax and the item of goods in respect of the sale of which it is levied.
The scheme of items 7(a) and 7(b) of the Second Schedule to the State Act is that in case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3 per cent at the point of last purchase in the State.
When those locally purchased raw hides and skins are tanned and are sold locally as dressed hides and skins, no levy would be made on such sales as those hides and skins have already been subjected to local tax at the fate of 3 per cent when they were purchased in raw form.
As against that, in the case of hides and skins which have been import ed from other States in raw form and are thereafter tanned and then sold inside the State as dressed hides and skins, the levy of tax is at the rate of 1 1/2 per cent at the point of first sale in the State of the dressed hides and skins.
This levy cannot be considered to be discriminatory as it takes into account the higher price of dressed hides and skins compared to the price of raw hides and skins.
It also further takes note of the fact that no tax under the State Act has been paid in respect of those hides and skins.
The Legislature, it seems, calculated the price of hides and skins in dressed condition to be double the price of such hides and skins 'in raw state, To obviate and prevent any discrimination or differential treatment in the matter of levy of tax, the Legislature therefore prescribed a rate of tax for sale of dressed hides and skins which was half of that levied under item 7(a) in respect of raw hides and skins.
1071 Lastly, it has been argued that dressed hides and skins are a commodity distinct and separate from raw hides and skins and that item 7(b) of the Second Schedule makes a discrimination between 'the sales of locally processed dressed hides and skins and those imported from other States.
In this respect we find that it is not the case of the appellants that they import dressed hides and skins from other States and sell them as such in Tamil Nadu.
On the contrary, the case of the appellants is that what they _import from other States are only raw hides and skins which are thereafter tanned and sold as dressed hides and skins.
In the circumstances, it is not clear as to what grievance the appellants can have on the score that there is discrimi nation between imported dresed hides and skins and the dressed hides and skins produced and manufactured within the State.
Apart that it seems to us that even though dressed hides and skins have been treated as separate commodity, there is a clear nexus between hides and skins in raw form and those in dressed form.
So far as the Central Act is concerned, both the raw as well as the dressed hides and skins are specified together in clause (iii) of section 14.
It has to be borne in mind that it is raw hides and skins which after being subjected to processing or tanning take the shape of dressed hides and skins.
Dressed hides and skins cannot, therefore, be considered in isolation and we find no infirm ity in a legislative provision which while levying tax on the sale of dressed hides and skins takes into account the levy of tax in respect of the purchase of raw hides and skins.
Looked at in this light there appears to be no warrant for the proposition that preferential treatment has been shown to dressed hides and skins prepared from locally purchased raw hides and skins compared to the treatment accorded to imported hides and skins.
We are therefore, of the view that the attack on the validity of item 7(b) of the Second Schedule to the State Act is not well founded.
We accordingly dismiss the ap peals, but in the circumstances without costs.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Raw as well as dressed hides and skins are declared goods under .
Section 4 of the Madras General Sales Tax Act, 1959, provides that the tax shall be payable by a dealer, on the sale or purchase of declared goods inside the State, at the rate and only at the point specified in the Second Schedule to the Act, on the turnover 'in such goods.
Item 7(a) of the Schedule provides that with respect to raw hides and skins, the rate of tax shall be at 3% and the point of levy shall be at the point of last purchase in the State.
Item 7(b) provides that with respect to dressed hides and skins (which were not subjected to tax under the Act as raw hides and skins), the rate of tax shall be 1 1/2% and the point of levy shall be at the point of first sale in the State.
The appellants are dealers in hides and skins.
They purchase raw hides and skins locally as well as in the course of inter state trade and commerce, convert them into dressed hides and skins and sell them either locally or in the course of export.
The appellants challenged the validi ty of items 7(a) and 7(b).
The challenge to item 7(a) was that the item would also cover inter state sales and as such was beyond the competence of the State Legislature; and the challenge to item 7(b) was that it was violative of article 304 (a) of the Constitution on the ground that whereas dressed hides and skins sold locally, but which have been made out of imported raw hides and skins, are subject to tax under the item similar sale of dressed hides and skins made out of raw hides and skins which have been subjected to tax at the purchase stage are not subject to tax under the item.
HELD: (1) Item 7(a) relates only to intra state sales and not to inter state sales.
This is clear from the lan guage used in the item, especially the words "purchase in the State".
Assuming the language is ambiguous it should be so construed as would sustain its, constitutional validity.
[1067 F] (2) Article 304(a) does not prevent levy of tax on goods: what it prohibits is such levy of tax on goods as would result in discrimination between goods imported from other states and similar goods manufactured or produced within the State.
The object is to prevent discrimination against imported goods by imposing tax on such goods at a rate higher than that borne by local goods since the difference between the two rates would constitute a fiscal barrier and thus impede the free flow of inter state trade and commerce.
The scheme of items 7(a) and (b) is that in the case of raw hides and skins which are purchased locally in the State, the levy of tax would be at the rate of 3%.
When such locally purchased raw hides and skins are tanned and sold locally as dressed hides and skins no levy would be made on such sales, as those hides and skins have already been subjected to tax at 3% when purchased in the raw form.
On the other hand, in the case of hides and skins imported from other States in the raw form, thereafter tanned, and then sold inside the State as dressed hides and skins, the levy of tax is at 11/2%.
This levy however, cannot be considered discriminatory because the Legislature, while prescribing the rate in item 7(b) at half that levied under item 7(a) took into account the higher price of dressed hides and skins (nearly double) as compared to the price of raw hides and skins, and the fact that no tax under the State Act has been paid in respect of imported raw hides and skins.
Even though dressed hides and skins are treated as a. separate commodity there is a clear nexus between hides 1066 and skins in the raw form and those in the dressed form; and hence, there is no infirmity in the legislative provision, which, while levying tax on the sale of dressed hides and skins takes into account the levy in respect of raw hides and skins.
[1070 D H] .
The onus of showing that there would be discrimination .between raw hides and skins purchased local ly and then tanned, and raw hides and skins imported and then tanned is on the appellant, and the appellant has not discharged the onus.
[1070 C] Firm A. T. B. Mehtab Majid & Co. vs The State of Madras & Anr.
14 S.T.C. 355 and .4.
Hajee Abdul Shukoor & Co. vs The State of Madras 15 S.T.C. 719, explained and distin guished.


judgement:
Appeal No. 1901 of 1970.
(From the Award dated 4/6.3.1970 of the Industrial Tribunal Maharashtra in Ref.
(I.T.) No. 158/67, published in Maharashtra Govt.
Gazette, Part I L dated 16 4 1970).
F.V. Kaka, F.A.K. Faisulla Bhai, O.C. Mathur and D. N Mishra for the Appellant.
F.D. Damania and B.R.Agarwala for Respondent No. 2.
Y.S. Chitale, P.H. Parekh and Miss Manjit Jelley, for Respondent No. 3.
The Judgment of the Court was delivered by GOSWAMI, J.
This appeal by special leave brings forth a rather disquieting feature of union rivalry whereby the significance of collective bargaining which is the forte of a union, is sought to be made 17 a flop.
We say this in the absence of any suggestion of mala fides or of any other ulterior motive alleged by .the contending union on time part of the rival union or its principal officer who had negotiated a certain settlement on behalf of the workmen in substitution of the award of the Industrial Tribunal out of which this appeal arose.
The appellant before us is the employer, supported, whole hog, by the Bombay General Kamgar Sabha, respondent NO.
3.Respondent No. 2 is the only contending union, viz.
,Mum baiMazdoor Sabha.
On May 18, 1967, there was a :reference by the Govern ment of Maharashtra of an industrial dispute under section 10(1)(d).of the Industrial Disputes Act to the Industrial Tribunal for adjudicating eight demands such as, wage scales, adjustment of.
increments, classification of workmen into different grades, dearness allowance, restropective effect of the claim from 1st June, 1966, gratuity, sick leave and wages for Sundays and holidays when called upon to .Work
The dispute was between the D& P Products (Private) Limited, Bombay and their workmen.
A written statement was submitted 'by the Mumbai Mazdoor Sabha (2nd respondent), claiming to represent the majority of the workmen on: July 25, 1967.
It appears that this written statement was signed by V. section Pandit as General Secretary.
The company submitted their written statement on August 17, 1967, in which; inter alia, they pleaded.
incapacity to have greater burden on account of financial position.
It was stated that the company had been making losses year after year since 1963 64 During the pendency of the dispute before the Tribunal, D & P Products (Private) Limited was amalgamated .with
Herbertsons Ltd. (the appellant) (hereinafter to be de scribed as the company) with effect from 1.10.1968 under the provisions of the" Companies Act by an order of the Bombay High ' Court dated 6th January, 1969.
The wage scales existing at the time.
of the reference were as follows : Unskilled Rs. 1.25 0.10 2.25 Semi skilled Rs. 1.50 0.15 3.00 Dearness allowance Rs. 2.16 per day.
The demand of the workmen on the other hand was as follows.
Unskilled Rs. 1.50 0.15 3.00 per day Semi skilled Rs 1.75 0.20 3.75 " " Skilled Rs. 2.50 0.30 5.50 " " Highly skilled Rs. 3.50 0.45.8.00 " " Dearness allowance "as paid to.
the Bombay Textile Oper atives".
3 1458SCI/76 18 The Tribunal (Shri R.D. Tulpule) made its award on March 4, 1970.
As regards the demand for wages and dearness allowance, the award of Tribunal was as follows : Grade I Rs Plus Revised (Unskilled) 1.30 0. 12 2.50 Textile dearness allowance.
Grade II B (Semi skilled) 1.40 0.15 3.20 do A (Semi skilled) 1 60 0.30 3.60 do Grade III 1.80 0.20 2.80 0.25 4.80 do (Skilled) The company preferred an application for special leave to this Court on May 12, 1970, against the award.
On May 25, 1970, certain consent terms for staying the award were filed by the parties without prejudice to the rights in the appeal whereby the company agreed to pay Rs. 2.50 as addi tional dearness allowance per day from October 1, 1968.
This Court admitted the special leave petition and posted the stay application for hearing on September 24, 1970, on which date in modification of the earlier stay order the parties further agreed that from 1st September, 1970, till the disposal of the appeal, the total dearness allowance would be calculated at Rs. 5/ per day irrespective of the index figures.
On February 22, 1973, the company agreed to increase the dearness allowance further by 80 paise with effect from January 1, 1973.
From June 1973 certain new developments took place.
On June 7, 1973, a letter was received by the company from the 3rd respondent, Bombay General Kamgar Sabha, stating that all the workers of the company had resigned from the 2nd respondent union (Mumbai Mazdoor Sabha) and joined the 3rd respondent union.
On June 7, 1973, the 3rd respondent sent a communication to the respondent No. 2 with a copy to the company enclosing a letter signed by the workers stating that they had resigned from the 2nd respondent union.
On June 25, 1973, the 3rd respondent sent a reminder to the company to recognise the Bombay General Kamgar Sabha.
By a letter dated 2nd/5th July, 1973, to the President, Bombay General Kamgar Sabha, who was incidentally the same V.S. Pandit who had earlier submitted the written statement in behalf of the Mumbai Mazdoor Sabha, the company granted recognition to the Bombay General Kamgar Sabha and informed the 2nd respondent of its derecognition.
On October 18, 1973, the company entered into a memorandum of settlement with the Bombay General Kamgar Sabha which was in substitution of the award which was pending appeal before this Court.
Copies of this settlement were forwarded to the Secretary to the Government of Maharashtra, Industries and Labour Department, the Commissioner of Labour, the Deputy Commissioner of Labour and the Conciliation Officer.
It is common ground that this is a settlement under section 18 (1) of the Industrial Disputes Act.
The 3rd respondent applied to this Court to be substi tuted if place of the 2nd respondent and the Other union.
The 2nd respondent 19 alone resisted the application claiming that it had still the allegiance of 50 workmen of the company.
This Court allowed the Bombay General Kamgar Sabha to be added as the 3rd respondent.
The company also submitted a petition to this Court to decide the appeal in terms of the memorandum of settlement dated October 18, 1973.
This Court on December 19, 1974, passed the following order : "The number of workmen concerned in this industrial dispute is 210.
The appellant employer and the 3rd respondent union which claims to have 193 members on its rolls have entered into a settlement.
The 2nd respondent union which claims to have about 55 members on its rolls has not yet accepted the settlement.
We think it just, therefore, to pass the same kind of preliminary order that was passed in Amalgamated Coffee Estate vs Their workmen in the following terms : "In view of the fact that admittedly a large number of workmen employed by the appellant have accepted the settlement, is it shown by the 2nd respondent union that the said settlement is not valid and binding on its members and whether the settlement is fair and just?" "The Industrial Tribunal, Maharashtra, would consider the issue and submit its finding within two months from this date.
After the finding is received, the appeal would be set down for hearing.
Parties should be allowed to lead evidence.
" When the matter went back, it appears that respondent No. 2 did not lead any evidence before the Tribunal (Shri D.L. Bhojwani).
The company and the 3rd respondent, on the other hand, examined 7 witnesses including V.S. Pandit, the President of the 3rd respondent union.
Certain documents were also filed before the Tribunal by the parties.
The Tribunal after hearing the parties in due course recorded its findings on September 9. 1975 and forwarded the same to this Court.
The findings of the Tribunal recorded are as follows : (1) Respondent 2 the Mumbai Mazdoor Sabha has been able to prove that the Disputed Settlement is not valid and binding on its members.
(2) The Disputed Settlement is incomplete to the extent mentioned above.
(3) The scheme of D.A. provided for in the Disputed Settlement in so far as it affects workmen at or just above the subsistence level is not fair, just and reasonable.
(4) The rest of the Disputed Settlement is fair, just and reasonable.
" 20 That is how this appeal has come up for bearing before us.
The first question that arises for consideration is whether the findings.
of the Tribunal are sustainable.
The appellant and respondent No. 3.
with one voice, have as sailed the findings 1 to 3 whereas the 2nd respondent has supported all the findings.
It is strenuously submitted by the 2nd respondent that there is no reason why we should interfere with the findings of fact returned by the Tribunal and relying upon these it is further contended that we should hear the appeal on the merits ignoring the settlement altogether.
Before we proceed further it is necessary to appreciate the implication of the order of this Court passed on Decem ber 19, 1974, set out earlier.
This order was passed after hearing the parties for some time when the appeal was first called for hearing on December 19, 1974.
From the recitals in the order it is apparent that the parties were prepared to abide by the settlement if the same was fair and just.
We are not prepared to accept the position, as urged by the 2nd respondent, that even if the settlement is binding on the parties executing the document, namely, the company and the 3rd respondent representing a large majority of the workmen, since the same is not binding on the members of the Mumbai Majdoor Sabha Union, howsoever small the number, under section 18 (1) of the Industrial Disputes Act, the appeal should be heard on merits.
On the other hand, we take the view that after hearing the parties this Court was satisfied when it had called for a finding of the Tribunal that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award.
The wording of the issue sent to the Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were their members upon whom they could clearly assert that the settlement was not binding under section 18(1) of the Indus trial Disputes Act.
It cannot be assumed that the parties were not aware of the implications of section 18(1) of the Industrial Disputes Act when the Court passed the order of December 19, 1974.
This Court would not have sent the case back only to decide the legal effect of section 18(1) of the Industrial Disputes Act.
Since a recognised and registered union had entered into a voluntary settlement this Court thought that if the same, were found to be just and fair that could be allowed to be binding on all the workers even if a very small number of workers were not members of the majority union.
It is only in that context that after hear ing the parties the case was remanded to the Tribunal for a finding on the particular issues set out above.
The numerical strength of the members of the 2nd re spondent, who are workers of the company, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair.
In that view of the matter we are unable to appreci ate that the 2nd respondent did not choose it fit to produce evidence to show the actual number of the workers of the company having membership of the 2nd respondent.
It is rather odd that not a single worker of the company claimed before the Tribunal 21 to be a member of the 2nd respondent and to assert that the settlement was not fair and just.
This is particularly so when all the workers of the company have accepted the settlement and also received the arrears and emoluments in accordance with the same.
The Tribunal thought that the question of the quantum of membership of the 2nd respondent did not call for a finding at all in view of 1his Court 's order.
As observed above that was not a correct assumption.
On the other hand, we feel that this view of the Tribunal has led it to approach the matter in an entirely erroneous manner.
The Tribunal is, rightly enough, conscious that under section 18 (1) of the Industrial Disputes Act the settlement was binding on the company and the members of the 3rd respondent union.
Even so, the Tribunal devoted nearly half of its order in scanning the evidence given by the company and respondent No. 3 to find out whether the terms of the settlement had been explained by the President of the union to the workmen or not and whether the workers voluntarily accepted the settlement knowing all the "consequences".
This to our mind is again an entirely wrong approach.
When a recognised union negotiates with an employer the workers as individuals do not come into the picture.
It is not necessary that each individual worker should know the implications of the settlement since a recognised union, which is expected to protect the legitimate interests of labour, enters into a settlement in the best interests of labour.
This would be the normal rule.
We cannot altogeth er rule out exceptional cases where there may be allegations of mala fides, fraud or even corruption or other induce ments.
Nothing of that kind has been suggested against the President of the 3rd respondent in this case.
That being the position, prima facie, this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration.
It is true that in the course of evidence given by the 'President as also by two workmen and other officers of the company the Tribunal has found certain discrepancies.
For example, the President in the course of cross examination stated that since the workers had already agreed he only tried to improve upon the settlement by negotiating .with the company for 85% and 871/2% dearness allowances instead of 80% earlier agreed to by the workers on their own.
We do not think that this admission by the President would reduce the efficacy of the settlement or affect its validity.
It may be that negotiations had been going on for some time and even some important workers had been individually approached by the management, but it is clear that the President of the union had taken upon himself the responsibility for the settlement upon which he.
on his own turn, succeeded in making some effective improvements beneficial to the Work men.
The Tribunal further made some observations that Shri Pandit was actually unaware of the consequences that would ensure to the workmen as a result of the settlement Reading the evidence of Shri Pandit as a whole.
we, however.
find "hat it cannot be said that he was unaware of the conse quences.
We are also unable to hold that he had knowingly and deliberately suppressed the fact about the importance of the consequences 22 to the workers if the settlement were accepted.
As a matter of fact it has been stated by the workmen.
who were exam ined, that Shri Pandit did mention that they would lose Rs. 12/ to Rs. 15/ in dearness allowance if the settlement superseded the award.
Mathematically this may not be correct as perhaps, on account of the rise of consumer price index, the loss in dearness allowance could have been even double the figure given by the President.
That, however, per se, does not make the settlement unfair or unreasonable.
It is found by the Tribunal that in the matter of wages the settlement has given better terms and that the same cannot be said to be unfair.
The Tribunal has stated in more than one place that the only objection to this settle ment levelled by the 2nd respondent is with regard to the quantum of dearness allowance.
While the award has given the Revised Textile dearness allowance, the settlement has substituted 86% and 871/2% of the Revised Textile allowance for the first and the second period respectively.
While the award is for one year, subject to the provisions of the Industrial Disputes Act, the settlement is for a period of three years.
Having regard to the totality of the terms of the settlement we are unable to agree with the Tribunal that the terms are in any way unfair or unreasonable.
Besides, the settlement has to be considered in the light of the conditions that were in force at the time of the reference.
It will not be correct to judge the settle ment merely in the light of the award which was pending appeal before this Court.
So far as the parties are con cerned there will always be uncertainty with regard to the result of the litigation in a court proceedings.
When, therefore, negotiations take place which have to be encour aged, particularly between labour and employer in the inter est of general peace and well being, there is always give and take.
Having regard to the nature of the dispute, which was raised as far back as 1968, the very fact the existence of a litigation with regard to the same matter which was bound to take some time must have influenced both the par ties to come to some settlement.
The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust.
There are three categories of workers, permanent work ers, listed casual workmen and certain other casual workmen.
It is said that the third category of workmen are employed seasonally for a period of 20 days or so.
Their number is also said to be not more than 20 or 30.
The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the parties.
It is because of this feature in the settlement that the Tribunal held that the settlement was incomplete.
We are, however, informed that as a matter of fact by mutual agreement some terms have been settled even for this third category of casual workmen.
At any rate, because no deci sion was arrived at with regard to this small number of seasonal workmen, it cannot be said that the settlement is bad on that account.
23 The Tribunal next dealt with the principles applicable in granting dearness allowance to workers.
It is while dealing with this part of the Tribunal 's award that Shri Damania for the 2nd respondent sought to make a strong plea in favour of sustaining the award by disregarding the set tlement.
According to counsel the wage level of the workers is more or less at subsistence level and, therefore, cent per cent neutralisation of the cost of living or, at any rate, 95% neutralisation should have been allowed while setting dearness allowance.
Since the Tribunal has rightly taken that settled principle into consideration and the settlement has departed from it, the same should be held as unjust and unfair to the workmen.
We should point out that there is some misconception about this aspect of the case.
The question of adjudication has to be distinguished from a voluntary settlement.
It is true that this Court has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award.
That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances.
By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation.
The settle ment, therefore, cannot be judged on the touchstone of the principles which are laid down by this Court for adjudica tion.
There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining.
Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding fric tion and unhealthy litigation.
This is the quintessence of settlement which courts and tribunals should endeavour to encourage.
It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication.
The Tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair.
Mr. Damania has drawn our attention to several authori ties of this Court with regard to the principles of fixation of dearness allowance including the recent decision of this Court in Killick Nixon Limited vs Killick & Allied Companies Employees Union and earnestly submitted that there is a "peremptive necessity" to grant cent per cent or at any rate 95% neutralisation of the cost of living as dearness allowance (5th principle of Killick Nixon Limited supra).
Even the Tribunal has relied upon the above decision.
But, as we have pointed out, that is not the correct way to decide whether a settlement voluntarily arrived at by the parties is just and fair.
The matter would have been abso lutely different if on the face of it the settlement was highly unconscionable or grossly unjust.
Even according to the Tribunal, the reduction of the dearness allowance to 85% and 871/2% from cent per cent is the only objectionable feature to enable it to hold that that part of the (1)[1975] Supp.
S.C.R. 453.
24 settlement is unjust and unfair.
The Tribunal found that all other terms of the settlement were "fair, just and reasonable".
It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad.
Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settle ment as unfair and unjust.
The settlement has to be accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust.
Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore.
As stated elsewhere in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settle ment.
Besides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improve ments.
These factors, apart from what has been stated above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement.
That being the position, we unhold the settlement as fair and just and order that the award of the Tribunal shall be substituted by the settlement dated October 18, 1973.
The said settlement shall be the substituted award.
The appeal is disposed of accordingly.
There will be no order as to costs.
B.P.R. Appeal dismissed.

summary/full:
In respect of certain demands of the workers of the appellant company an Industrial Tribunal made its award.
When the Special Leave Petition of the appellant was pending before this Court the parties filed consent terms for staying the award.
In the meantime the 3rd respondent, a Trade Union, wrote to the employer that all the workers who were members of the 2nd respondent, also a Trade Union, resigned from that union and joined the 3rd respondent. 'The employer accordingly recognised the 3rd respondent as the Trade Union representing/he workers and de recognised the 2nd respondent.
Under section 18(1) of the Industrial Disputes Act the em ployer entered into a settlement with the 3rd respondent in substitution of the award pending before this Court.
When the 3rd respondent sought to be substituted in place of the 2nd respondent in the Special Leave Petition, the 2nd re spondent resisted the application claiming that it had still the allegiance of 50 workmen of the company.
But this Court added the 3rd respondent as a respondent.
Since the 2nd respondent claimed to have some workers on its rolls as members and had not .accepted the settlement, this Court passed a preliminary order to the effect that "in view of the fact that admittedly a large number of workmen employed by the appellant have accepted the settlement is it shown by the 2nd respondent union that the said settlement is not valid and binding on its members and whether the settlement is fair and just.
" Before the Tribunal the 2nd respondent did not lead any evidence to show 'the actual number of its members.
The Tribunal recorded its finding that respondent No. 2 had been able to prove that the settlement was not valid and I bind ing on its members and was incomplete to that extent.
It was contended by 'the 2nd respondent that even if the set tlement was binding on the company and the 3rd respondent representing a large majority of workmen, it was not binding .on its members under section 18(1).
Dismissing the appeal, HELD: The settlement is fair and just.
The award of the Tribunal shall be substituted by the settlement and the settlement shall be the substituted award.
[24D] (1) (a) When this Court called for a finding of the Tribunal it was satisfied that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award.
The Wording of the issue sent to the Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were its members.
Since a recognised and regis tered union had entered into.
a voluntary settlement this Court thought that if the same was found to be.
just and fair that could be allowed to be binding on all the work ers even if a very small number of workers were not mem bers of the majority union.
[20E F] (b) In the instant case the numerical strength of the members of the 2nd respondent, who are workers of the compa ny, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as just and fair.
Not a single worker of the company claimed before the Tribunal to be its member and asserted that the settlement was 16 not fair and just.
All the workers of the company had accepted the settlement and received the arrears and emolu ments in accordance with the same [20H] (2) (a) The assumption of the Tribunal that the quantum of the membership of the 2nd respondent did not call for a finding at all in view of this Court 's order is incorrect.
The Tribunal was conscious that under section 18(1) the settle ment was binding on the company and the 3rd respondent Union.
Yet it examined the question whether the workers voluntarily accepted the settlement knowing all the conse quences, which was a wrong approach.
[21B C] (b) When a recognised union negotiates with an employer the workers as individuals do not come into the picture.
It is not necessary that each individual worker should know the implications of the settlement since a recognised union.
which is expected to protect the legitimate interests of labour enters into a settlement in the best interests of labour.
[21D] (c) Prima facie this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration.
[21E] (d) Having regard to the totality of the terms of the settlement it is difficult to hold that the terms are in any way unfair or unreasonable.
An adjudication has to be dis tinguished from a voluntary settlement.
By the settlement labour has scored in some aspects and saved all unnecessary expenses in uncertain litigation.
The settlement cannot be judged on the touchstone of the principles laid down by this Court for adjudication.
[22D; 23D] (3) There may be several factors that influence parties to come to a settlement as a phased endeavour in collective bargaining.
Once cordiality is established between the employer and labour in arriving at a settlement there is always a likelihood of further advance in the shape of improved emoluments by voluntary settlement, avoiding fric tion and unhealthy litigation.
This is the quintessence of settlement which courts and Tribunals should endeavour to encourage.[23E] (4) It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad.
Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained, the Court will be slow to hold a settle ment as unfair and unjust.
the settlement has to be accepted or rejected as a whole.
[24B] In the instant case the 3rd respondent representing the large majority of the workmen has stood by this settlement which is a strong factor difficult to ignore.
When a union backed by a large majority of workmen has accepted a settle ment in the course of collective bargaining, this Court would not interfere with the settlement.


judgement:
Civil Appeal No. 1343 of 1969.
From the Judgment and Decree dated 17 2 1969 of the Kerala High Court in Appeal Suit No. 493 of 1966.
S.T. Desai, section Krishan Iyer and A.G. Puddisery, for the Appellant.
T.S. Krishnamoorthy Iyer, K.P.K. Menon, I. N. Shroff and R.P. Kapoor, for the Respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by certificate from the judg ment dated 17 February, 1969 of the High Court of Kerala.
The respondent filed this suit against the appellant for recovery of property with arrears of rent and mesne profits and damages for waste.
The property measuring 550.37 acres consisted of 279.86 acres of planted area and the rest was unplanted area.
By a lease dated 7 October, 1950, the.
respondent leased out to the appellant the plantations together with Bungalow, quarters of what is described as "Beenachi Estate".
The lease was for a period of 12 years with effect from 1 Janu ary, 1950.
The rent for the first six years was fixed at Rs. 3600/ per annum.
The rent for the second period of six years was fixed at Rs. 4500/ per annum.
The rent was payable in advance on 1 January of each calendar year.
The respondent 's case is that since 1953 the appellant failed and neglected to pay rent fixed under the lease.
Clause 4 of the lease provided that if the rent would be in arrears and unpaid for 30 days after the same would become due it would be lawful for the lessor respondent to forfeit the lease notwithstanding the fact that the term had not expired.
The lease provided that the respondent lessor would re enter the premises in that event and the lease would cease and determine.
The respondant by notice dated 5 March, 1959 called upon the appellant to quit, vacate and deliver to the respondent vacant possession of the property.
The notice was consequent upon the wilful default of the appellant to pay rent and consequent on the several breaches of covenants as alleged in the notice.
The respondent filed the suit on 5 February, 1960.
The defendant claimed possession of the property known as the Beenachi Estate together with movable, a declaration that the lease had determined and claimed arrears of rent, mesne profits a sum of Rs. 2,20,394/ as 'damages for waste.
At the trial the appellant raised the plea that the tenancy is governed by the Malabar Tenancy Act, and, there fore, the suit is barred by Act 1 of 1957.
The respondent pleaded that the tenancy 1029 is covered by exception in section 2(1 ) of the Malabar Tenancy Act VII of 1954.
The trial Court accepted the preliminary objection of the appellant and dismissed the suit.
The High Court on appeal remanded the case tO the Subor dinate Judge for fresh trial.
The trial Court on remand decreed the suit on 25 October, 1966.
The respondent ob tained a decree for eviction with arrears of rent and dam ages amounting to Rs. 1,00,000/ for certain items and a further sum of Rs. 51,030/ for other items of damages.
The trial COurt held that in view of the proviso to section 3(1) (vii) of the Kerala Land Reforms Act I of 1964 hereinaf ter referred to as the 1964 Act a tenant having fixity of tenure under the Act as it stood on 21 January 1961 would continue to enjoy it under the 1964 Act notwithstanding the fact that the landlord might be a corporation owned or controlled by the Government of India or by any State Gov ernment in India .as provided in section 3(1) (c) of the 1964 Act.
The appellant was held by the trial Court to be disentitled to resist the prayer for eviction in 'the suit because his holding was a plantation exceeding 30 acres in extent as provided in section 3(1) (vii) of the 1964 Act.
The appellant filed an appeal.
The respondent filed cross objections.
The High Court dismissed the appellant 's appeal and allowed the cross objections of the respondent.
The High Court enhanced the damages from Rs. 1,00,000/ to Rs. 2,20,394/ and confirmed the award of Rs. 51,030/ as damages under other heads.
Counsel for the appellant contended that the High Court was in error in taking the view that the appellant was not entitled to claim fixity of tenure.
Counsel for the appellant relied on section 3(1) (vii)of the 1964 Act as amended by Act 35 of 1969.
Before the 1969 Amendment the 1964 Act provided in clause (vii) to section 3(1) that nothing in this Chapter shall apply to clauses (i) to (vii) of section 3 to the rights of persons who were entitled to fixity of tenure immediately before 21 January 1961 under any law then in force.
The aforesaid proviso was substitut ed by the Amendment Act 35 of 1969 as follows : "Provided that nothing in clauses (i)to (vii) shall apply in the cases of persons who were entitled to fixity of tenure immediately before 21 January 1961 under any law then in force or persons claiming under .such persons".
The High Court held that only rights of persons but not fixity of tenure were saved.
Counsel for the appellant contended that the effect of proviso to section 3(1) (vii) of the 1964 Act as amended in 1969 is that fixity of tenure and rights with regard to the same are both saved, and, therefore, the High Court should have held that the appellant was entitled to fixity of tenure.
The second contention of counsel for the appellant is that the High Court was in error in holding.
that under section 23 of the Malabar Tenancy Act 1929 the appellant was liable to be evicted by the landlord and that the appellant had no right to resist eviction.
1030 The contention of the appellant was that assuming the High Court was right on the above conclusion, the provisions contained in section 108 sub sections (2) and (3) of the 1964 Act as amended in.
1969 require the Court.
to apply the law retrospectively in respect of pending suits, appeals, applications, decree where dispossession had not been ef fected.
It is said by the appellant that the relevant date .for the application of these sub sections was 1 Janu ary 1970 on which, date the 1969 Amendment Act came into force.
It is contended on.
behalf of the appellant that the appellant had not been dispossessed from the property on or before 1 January, 1970, but only an order appointing Receiv er was made by the.
High Court on 17 February, 1969.
The property, therefore, according to the appellant, continued to be on lease and the order appointing Receiver could not have the affect of dispossession.
The appellant, therefore, under section 108(2) of the 1964 Act claimed to have the decree reopened for disposal in accordance with section 125(3) of the 1964 Act as amended in 1969 Section 108(2) of the 1964 Act as amended is as follows : "Any decree passed before the commencement of this section for the dispossession of a person from the land in his possession, pursu ant to which dispossession has not been af fected, may, on the application of such per son, be reopened and the matter may be dis posed of in accordance with the provisions of the principal Act as amended by this Act.
By the principal Act is .meant the 1964 Act.
Section 125(3) of the 1964 Act as amended in 1969 is as follows : "If any suit or other proceeding in ques tion regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappu karan) arises, the civil court shall stay the suit or other proceeding and refer such ques tion to the Land Tribunal having jurisdiction over the area in which the land or part there of is situate together with the relevant records for the decision of that question only".
Extracting these provisions counsel for the appellant contended that section 125(3) of the 1964 ACt as amended in 1969 indicated that all questions regarding rights of ten ants could be decided only by the Land Tribunal to which a reference has to be made.
The third contention on behalf of.
the appellant is that the 1964 Act as amended in 1969 inserted section 50A to the 1964 Act the effect of which is that notwithstanding any thing contained in any law or contract, or in any judgment, decree or order of court, a tenant.
entitled to fixity of tenure shall have the right to use his holding in any manner he thinks fit.
The 1964 Act as amended in 1969 introduced section 52 which was.
also relied on by the appellant, to show that the cultivating tenant shall have a right to cut such trees and the landlord or the intermediary shall not have the right to cut any such trees.
Section 73 of the 1964 Act which was introduced in 1969 is to the effect that the maximum amount that could be claimed by 1031 way of arrears of rent for the period ending May 1968 notwithstanding any contract, judgment or order of court is only 3 years and nothing more.
These provisions, viz., Sections 50 A, 52 and 73 which were introduced by the 1969 Amendment Act were relied on by the appellant for the purpose of showing that the appellant would be entitled to use the holding and to cut trees and the maximum arrears of rent could be claimed for a period of three years and not more.
Counsel for the appellant next contended that the trial Court was in error in finding that the holding of the appel lant is a plantation in the context of section 3(1) (viii) of the 1964 Act.
The contention on behalf of the appellant was that assuming that the trial Court was right in its conclusion as regards the area of 279.86 acres which accord ing to the respondent was the extent of coffee plantation .on the date of the lease, in respect of the remaining extent of land the appellant was entitled to fixity of tenure in view of the proviso to clause 3(1)(viii) of the 1964 Act.
The crucial date according to the appellant is 1 January 1970 when the 1969 Amendment Act came into force.
The effect of section 108(2) and (3) of the 1964 Act read with section 125(3) of the Act is according to the appellant, that the questions as to whether 'the whole or portion of the land is a plantation, whether there is fixity of tenure and whether the respondent can claim damages could all be disposed of only by the Land Tribunal.
The appellant con tended that the judgment of the High Court has, therefore, to be set aside and this Court should direct that the mat ters may be disposed ' of by the Land Tribunal.
As a corollary counsel for the appellant contended that the trial Court was wrong in holding that the appellant was liable to pay damages and in view of the provisions con tained in sections 50 A and 52 of the 1964 Act as amended in 1969 read which section 125(3) of the Act as amended all matters would be decided by the Land Tribunal.
Counsel for the appellant relied on section 108(3) of the Act which as changed by amendment in 1971 is as follows : "If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act, or the principal ,Act as amend ed by this Act, such suit, application, ap peal, revision, review, proceedings in execu tion or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended by the 1971 Act.
" In short the contention of the appellant is that ' the whole proceedings in the suit and the pleas therein are to be disposed of in accordance with the provisions ' of the Act.
According to the appellant the provisions of the Act indicate that there should not be 1032 any decree for eviction and .further that the damages award ed against the appellant cannot be sustained by the provi sions of the 1964 Act as amended by Act 35 of of 1971 and Act 17 of 1972.
The appellant filed an application praying for reopen ing the decree passed by the High Court and in that behalf has invoked section 132(3) of the 1964 Act and section 108(2) of the Act as amended in 1969.
The appellant also prayed that section 108(3) as introduced in 1969 and as amended in 1971 indicates that the appeal is to be disposed of in accordance with the provisions of the appeal is as amended in 1971.
Section 132(3) of the 1964 Act is as follows : "Notwithstanding the repeal of the enactments mentioned in sub section (2) any decree passed before.
the commencement of this Act for the eviction of a tenant from his holding, pursuant to which eviction has not been effected, may, on the application of the tenant or the landlord, be reopened and the matter may be disposed of in accordance with the provisions of this Act.
" This provision according to the appellant establishes that it applies to decree passed before the commencement of Act 1 of 1964 and also pursuant to which eviction has not been effected.
In the present case, the decree was passed by the trial Court as well as by the High Court after the 1964 Act came into existence.
The decree was passed in accordance with the provisions of the 1964 Act but before the amendment in 1969.
The appellant claimed benefit of the proviso to section 3 (1) (vii)of the Act.
The benefit claimed is fixity of ten ure.
The proviso as it stood when the 1964 Act came into operation was that nothing in clauses (i) to (vii) of sec tion 3 (1) of the Act "shall affect the rights of persons who are entitled to the fixity of tenure immediately before 21 January 1961 under any law then in force".
The change Substituted by the 1969 Amendment Act is that nothing in clauses (i) to (vii) of section 3(1) of the Act "shall apply in the case of persons who were entitled to fixity of tenure immediately before 21 January 1961 under any law then in force or persons claiming under such persons".
The prevail ing law on 21 January 1961 was the Malabar Tenancy Act.
If, therefore, the appellant did not or could not have fixity of tenure on 21 January 1961 under the Malabar Tenancy Act he would not have any claim to the benefit of fixity of tenure under the 1964 Act or even under the 1964 Act as amended in 1969.
Under section 23 of the Malabar Tenancy Act a Verum pattom tenant would be liable to be evicted from his holding at the instance of his landlord if 'he intentionally commit ted acts of waste sufficient to impair materially the value or utility of the holding for the, purpose for which it was let to him or that he committed default in the pay ment of stipulated rent for more than 3 months after its due date, or allowed strangers to trespass upon the holding.
In the present case,.
the appellant has been found to be a habitual defaulter since 1952 in the payment of rent fixed under the lease of 1950 under which the 1033 appellant was let into possession of the estate.
Further the appellant has been found to be guilty of willful acts of waste before and after the institution of the suit.
The appellant has also been found to have denuded the entire tree growth in more than one half of the area of the estate.
The appellant has been found to have destroyed more than one half of the coffee planted area that had been leased to him.
It was found that the remaining part of the coffee plantation as a result of the acts of the appellant is in utterly neglected condition.
The facts circumstances of the present case as found by the courts establish that the appellant had no fixity of tenure on 21 January 1961 warranting grant of any benefit, remedy or right against eviction.
In fact, this claim was also canvassed by the appellant and found against him by the court.
The respondent in the present case is a Corporation owned or controlled by the Government of Madhya Pradesh and, is, therefore, a Government company under the Indian Companies Act.
The appellant is disentitled to claim fixity of tenure under section 13 of the Act inasmuch as under the 1964 Act and under amendment in 1969 leases of lands owned by the Government owned Companies are by section 3(1) (i) of the 1,964 Act specifically exempted from the provisions of Chap ter II of the Act.
Section 13 which is in Chapter 1I cannot therefore, be invoked by the appellant.
The right to fixity of tenure is denied to a tenant in respect of a holding owned by or belonging to a Government controlled CompanY.
The appellant is, therefore, not entitled to claim fixity of tenure under the 1964 Act as amended.
The Beenachi Estate in the present case does not come within the definition of "plantation" in section 2(44) of the 1964 Act as amended in 1969 because the extent of coffee cultivated area has been found by the court to have dwindled to a little over 110 acres in extent out of the total extent of a little over 550 acres.
Further, tapioca has been grown by the Receiver in the areas other than the coffee planted area.
Therefore, the Estate ceased to be a property princi pally planted with coffee even before 1 January 1970 when the 1969 Amendment Act came into force.
Under the lease the coffee planted area was 279.86 acres and the remaining extent of 271 acres was also intended to be extended area to be planted with coffee.
The courts have found that instead of coffee plantation the appellant deliberately committed waste during the progress of litigation in the courts by reducing the extent of coffee plantation to just 168.58 acres.
This area dwindled to little over 110 acres before 2 March 1969 when the Receiver was appointed by the High Court.
The .large extent of vacant areas within the estate was on account of deliberate devastation of the said area by denudation of tree growth during the pendency of the litiga tion in the courts.
Therefore, it"is obvious that the appellant is dis entitled to take advantage of his own wrongs so as to claim statutory benefits which are also not available to the appellant.
The property by reason of acts of waste, damage, devastation, denudation Ceased to be coffee plantation on 1 January 1970 when the 1969 Amendment came into effect.
Section 108(3) of the Act as amended in 1971 ' will permit the reopening of the decree only if a person has claims to right, benefit or 1034 remedy which has been conferred on him under the Act.
In the present case neither under the Act of 1964 nor under the 1969 Amendment Act the appellant can claim the benefit of section 50 A of the 1964 Act as amended in 1969 because the appellant willully misused the holding and caused acts of waste causing loss 'to the lessor and damage and destruction to the holding.
The High Court rightly held that under the proviso to clauses (i) to (vii) of section 3(1) of the 1964 Act the appellant had no right to fixity of tenure under the Malabar Tenancy Act.
Section 23 of the Malabar Tenancy Act con ferred a right on the landlord to evict the tenant who intentionally and wilfully committed such acts of waste as are calculated to impair materially and permanently the value or utility of the holding for agricultural purposes and who has not paid within three months after the due date, the whole or any portion of the rent due in respect of the holding.
The courts found the defendant to be guilty of wilful waste prior to the institution of the suit and during the pendency of the suit and further that the appellant committed default in payment of rent for seven years.
Therefore, the appellant was not entitled to any rights .of fixity of tenure under the proviso to clauses (i) to (vii) of section 3(1) of the 1964 Act is to be interpreted in the light of the provisions of the Malabar Tenancy Act in the present case.
The appellant invokes the provisions contained in sec tion 125(3) of the Act for the purpose of determination in accordance with the provisions of the Act benefits, rights or remedies conferred by the Act and claimed by him are fixity of tenure, remedy against eviction and remedy against payment of damages and arrears of rent.
The appellant also invokes the provisions contained in section 108(2) and (3) of the Act for the purpose of reopening of the decree and disposal of the same in accordance with the provisions of the Act on the same ground that the appellant claims bene fits, rights and remedies conferred on him by the provisions of the Act.
Counsel for the appellant relied on the Full Bench decision of the Kerala High Court in Anantha Narayana Iyer vs Pran(1) in support of the contention that by reason of the provisions contained in section 125(3) of the Act the appeals_should be disposed of in accordance with the provi sions of the Act.
Section 125 (1 ) of the Act created a bar against civil court to settle, decide or deal with the questions required to be settled by the Land Board in accordance with the provisions of the Act.
The provisions contained in section 125(1) of the Act are prospective.
Section 125 came into effect on 1 January, 1970 when the other amendments intro duced by the 1969 Amendment Act came into force.
The provi so to section 125(1) of the Act expressly states that Sec tion 125(1) of the Act shall not apply to proceedings pend ing in any court at the commencement of the Amendment Act of 1969 on 1 January, 1970.
The effect of the proviso is to carve out by way of exception what would otherwise have fallen within the provision to which it is a proviso.
It, therefore, follows that the proceedings in the present case which were pending at the commencement of the Amendment Act on 1 January, (1) 1035 1970 are saved from the operation of section 125(1) of the Act.
In short, the proceedings are to be determined by the civil court.
Section 125(3) of the Act which provides that if in any suit or other proceeding any question regarding the rights of a tenant arises the civil court shall stay the suit and refer such question to the Land Tribunal having jurisdiction over the area in which the land or the part thereof is situate for the decision of that question only.
The appel lant relied on the Kerala Full Bench decision which held that section 125(3) of the Act as amended in 1969 is retro spective, and, therefore,.
proceedings should be determined by the Land Tribunal.
The reason given by the Kerala High Court is that the suit or proceeding must be pending at the commencement of the Amendment Act 1969 before the provisions contained in section 125(3) of the Act can be applied.
The Kerala High Court has, therefore, concluded that suit or other proceeding which is pending at the commencement of the Act will be governed by section 125(3) of the Act.
This reasoning is not correct.
Section 125(3) of the Act is equally prospective.
Section 125(3) of the Act will be applied with regard to the provisions contained in section 125(1) of the Act.
Matters which will be within the mischief of section 125(1) of the Act are matters which will arise in suits or proceedings initiated and originated after the commencement of the Act.
It is unsound to suggest that pending proceedings which are excepted from the application of section 125 (1) of the Act will yet fall within section 125(1) of the Act by reference to section 125(3) of the Act.
The Kerala High Court fell into the error of overlooking the purpose of section 125(3) of the Act.
The purpose is that suit or other proceeding shall be stayed.
In the present case the appeal in this Court which was pending on 1 January 1970 is a proceeding which was pending at the commencement of the Act and was not initiated or originated at the commencement of the Act.
Therefore, the provisions contained in section 125 are not applicable in the present case.
A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied.
In that connection the former state of the law is to be considered and also the legislative changes contem plated by the statute.
Words not requiring retrospective operation so as to effect an existing statutory provision prejudicially ought not be so construed.
It is a well recognised rule that statute should be interpreted if possible so as to respect vested rights.
Where the effect would be to alter a transaction already entered into, where it would be to make that valid which was previously invalid, to make an instrument which had no effect at all, and from which the party was at liberty to depart as long as he pleased, binding, the prima facie construction of the Act is that it is not to be retrospective.
See Gardner vs Lucas.(1) In Moon vs Durden(2) a question arose as to whether section 18 of the Gaming Act 1845 which came into effect in August 1845 was retrospective so as to defeat an action which had been commenced in (1) (2) ; 16 1338SCI/76 1036 June, 1845.
The relevant section provided that no suit shall be brought or maintained for recovering any such sum of money alleged to have been won upon a wager.
It was held that it was not retrospective.
Parke B said "It seems a strong thing to hold that the legislature could have meant that a party who under a contract made prior to the Act had as perfect a title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation".
Again in Smithies vs National Union of Operative Plas terers(2) section 4 of the Trade Disputes Act, 1906 which enacted that an action for tort against a trade union shall not be entertained by any court was held not to prevent the court 's from hearing and giving judgment in.
actions of that kind begun before the passing of the Act.
It is a gener al rule that the legislature alters the rights of parties by taking away or conferring any right of action, its enact ments, unless in express terms they apply to pending ac tions, do not affect them.
But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of section.
See Re Joseph Sucha & Co. Ltd.(2).
If the legislature forms a new procedure alteration in the form of procedure are retrospective unless there is some good reason or other why they should not be.
In other words, if a statute deals merely with the procedure in an action, and does not affect the rights or the parties it will be held to apply prima facie to all actions, pending as well as future.
In the present case the provisions in section 50 A, 52 and 73 of the 1964 Act as amended in 1969 were invoked by the appellant.
The appellant is disentitled from doing so by reason of Chapter II of the 1964 Act not being applicable to the lease where the lessor is a Government Company.
Further these sections came toto effect on 1 January 1970.
The sections are not retrospective but prospective in opera tion.
The appellant is not entitled to attract these sec tions.
For the foregoing reasons the appeal is dismissed with costs.
V.P.S. Appeal dismissed.

summary/full:
The proviso to section 3(1)(vii) of the Kerala Land Reforms Act, 1964.
provided that nothing in clauses (i) to (vii) of section 3(1) shall affect the rights of persons who are entitled to the fixity of tenure immediately before 21 January 1961 under any law then in force.
The law prevailing immediate ly before 21 January 1961, was the Malabar Tenancy Act, 1929.
Under section 23 of that Act a tenant would be liable to be evicted from his holding at the instance of h/s landlord if he intentionally committed acts of waste or defaulted in the payment of rent for more than 3 months.
The proviso was amended by 1969 Amendment Act which came into force on January 1; 1970.
The amending Act also.
inserted in the Act new Ss.
50A. 52 and 73.
Section 50A provided that a tenant entitled to fixity of tenure shall have the right to use his holding in any manner he thinks fit.
Section 52 pro vided that a cultivating tenant shall have a right to cut .trees and section 73 is to the effect that the maximum amount that could be claimed by way of arrears of rent is only for 3 years.
Section 108(2) was also amended and it provided that any decree passed before the commencement of the section for the dispossession of a person from the land in his possession may on the application.
of such person be reopened and disposed of in accordance with the provi sions of the 1964 Act as amended by the 1969 Act provided dispossession has not been affected.
Section 125(3) provid ed that if in any suit or proceeding questions regarding the rights of a tenant arose, the civil court shall stay such proceedings and refer the question to the Land Tribunal having jurisdiction over the area.
Section 132(3) provided that any decree pursuant to which eviction has not been effected may, on the application of the tenant or the land lord be reopened and the matter disposed of in accordance with the provisions of the Act.
The respondent owned about 550 acres out of which more than half was Coffee planted area.
He leased the plantation and the remaining unplanted area to the appellant in 1950 for 12 years.
Clause (4) of the lease provided that if the rent was in arrears for 30 days after it became due it was lawful for the lessor to forfeit the lease and re enter on the land.
Alleging_ that since 1953 the 'appellant had neglected to pay the rent, the respondent filed the suit claiming possession of the land, arrears of rent, and dam ages for waste.
The trial court decreed the suit in.
1966 and the decree was confirmed by the 'High Court with the enhanced damages in February 1969.
In appeal to this Court the appellant contended that he was entitled to fixity of tenure; that the unplanted area was not a plantation and 'so he was entitled to fixity of tenure therein; ,hat the pro ceedings were to be disposed of in accordance with the provisions of the 1964 Act as amended by 1969 Amendment Act.
that is.
that all questions regarding rights of tenants and landlords could be decided only by the Land Tribunal; and that the damages were awarded contrary to the 'provisions of the Act as amended.
He, therefore.
filed an application praying for reopening of the decree passed by the High Court and also contended that in view of the amendments in 1971 the appeal is to be disposed of in accordance with the provisions of the Act, as amended in 1969 and 1971.
Dismissing the appeal to this COurt,.
HELD: In the present case, the decree was passed by the trial court as ' well as by the High Court after the 1964 Act came into force but before the, 1027 1969 amendment.
The decree was correctly passed in ac cordance with the provisions of the 1964 Act, since the amendments were prospective and not retrospective.
[1036 E F] .rm60 (1) A statute has to be looked into for the general scope and purview of the statute and at the remedy sought to be applied.
In that connection the former state of law is to be considered and also the legislative changes contemplated by the statute.
Words not requiring retrospective operation so as to affect an existing statutory provision prejudicially ought not to be so construed.
It is a general rule that when the legislature alters the rights of the parties by taking away or conferring any right of action, its enactments.unless in express terms they apply to pending actions, do not affect them.
If however, a statute deals merely with procedure in an action and does not affect the rights of the parties, it will be held to apply prima facie to all actions pending as well as future.
[1033 E G] Gardner vs Lucas (1878) 3 Appeals Cases 582; Moon vs
Durden (1948) 2 Exch.22 and Smithies vs National Union of Operative Plasterers , referred to.
(2) The entire land leased out does not come within the definition of plantation, because.
the extent of coffee cultivated area has been found to have dwindled to about 100 acres out of the total extent of about 550 acres by reason of the acts of waste committed by the appellant and ceased to be a plantation even before 1 January 1970.
The appel lant, however, is disentitled to take advantage of his own wrongs so as to claim statutory benefits which were also not available to him.
[1033 A B, E G] (3) The appellant had been found to be habitual defaulter since 1952 in the payment of rent and to be guilty of wilful acts of waste before and after the institution of the suit.
He had denuded the entire tree growth in morethan one half of the area and destroyed more than one half of the coffee planted area, and the remaining part was in an utterly neglected condition.
Therefore.
under section 23.
Malabar Tenan cy Act, the appellant had no fixity of tenure on 21 Janu ary 1961, and hence was not entitled to the benefit of proviso to section 3(1) either under the 1964 Act or the 1969 Act.
[1032 G H, 1034.B D)] (4) The respondent was a Government company.
Under section 3(1)(i) of the 1964 Act, leases of lands owned by Government companies are exempted from the provisions of Chap.
Section 13, which is in Chap.
II and which provides for fixity of tenure cannot therefore be invoiced.
by the appel lant for claiming 'fixity, of tenure under the 1964 Act.
[1033 C D] (5) The appellant is disentitled from invoking sections 50A, 52 and 73 of the 1964 Act as amended in 1969 because, Chap ter 1I of the 1964 Act is not applicable to the lease since the respondent lessor iS a Government Company.
More over, these sections came into effect on 1st January 1970 and were not retrospective, but were.
prospective in.
opera tion.
[1032 A D, 1033 H, 1036 A B] (6) Sect.ion 108(3) of the Act as amended in 1971 will permit the opening of the decree only if a person has claims to a right benefit or remedy which has been conferred on him under the Act.
In the present case neither under the 1964 Act nor under the 1969 Amendment the.
appellant can claim the benefit of section 50A because he wilfully misused the hold ing and caused acts of waste causing loss to the lessor and damage and destruction to the holding.
[1033 H, 1034 A B] (7) Section 125(1) of the Act which came into force on 1 January 1970, creates bar against the civil court deciding questions required to be settled by the Land Board.
This provision is prospective.
and the proviso expressly states that the section shall not apply to proceedings pending in any court at the commencement of the 1969 amending Act.
It, therefore, follows that the proceedings in the present case which were pending at the commencement of the 1969 Amendment Act are saved from the operation of section 125(1).
Section 125(3) is equally prospective.
It will be applied with regard to the provisions contained in section 125(1) of the Act.
Matters which will be within the mischief of section 125(1) are matters which will arise in suits or proceedings initiated or originated after the commencement of the Act.
It is unsound to 1028 suggest that pending proceedings which are exempt from the application of section 125(1) will yet fall within that sub section by reference to section 125(3).
Therefore, the provisions contained in section 125 are not applicable in the present case.
[1034 G H, 1035 A E] Anantha Narayana Iyer vs Pran , over ruled.