Cochin Devaswom Board, Trichur Vs.
Vamana Shetty & Ors [1966] INSC 62 (2 March 1966)
02/03/1966
ACT:
The Travancore-Cochin Kanam Tenancy Act (24
of 1955)-If applies lo Devaswoms.
Constitution of India, 1950, Art. 14-Act
applicable only to Cochin ,area of the Kerala State-If Act, ultra vires.
HEADNOTE:
In 1910, the Ruler of Cochin issued a
Proclamation publishing Ruler. -to secure the better administration of
Devaswoms. Clause 9 of the Proclamation authorised the Diwan of the State to
make Rules to carry out the main object and scheme of the Proclamation. In
exercise of the authority conferred upon him, the Diwan published rules on
March 21, 1910 regulating the procedure in the matter of collection Paattam,
Michavaram, renewal fee and other dues payable to Devaswoms. These Rules
applied to all tenants--ordinary as well as Kanam. In 1955, the legislature of
the Part B State of Travancore Cochin enacted the Travancare-Cochin Kanam
Tenancy Act conferring full proprietary rights on Kanam tenants in the Cochin
area of the State, subject only to the payment of Janimikaram as a result of
which, the Kanam-tenant was declared proprietor of the land and the right of
the Jemni was only to receive the Jamnikaram. After the enactment of the Act,
the Cochin Devaswom Board claimed to recover michavaram from the Kanam tenants
at the rates settled under the Rules made under the Proclamation of 1910. The
Kanam-tenants petitioned the High Court for an appropriate writ quashing the
notices of demand issued by the Board, and the High Court allowed the petitions
and directed the Board not to proceed to enforce the notices. In appeal to this
Court, it was contended that; (i) the Act applied only to land held under a
contract of tenancy and not to, Devaswom lands in respect of which the
michavaram and renewal fee, were governed by Rules framed under the
Proclamation (ii) the Act was discriminatory and void.
HELD : (i) The Travancore-Cochin Kanom
Tenancy Act governs lands held from Devaswoms in the Cochin region of the State
Kerala.
The Scheme of the Rules published by the
Diwan under the Proclamation was that an offer of Pattah on the terms specified
in a 'tough draft was to be made to the tenant and after the terms were settled
a final Pattah was to be given and the Kanam-tenant had to execute a Kychit
(undertaking) in favour of the State. Though the quantum of Michavaram and the
renewal fee was determined by-the Rules under the proclamation the terms of the
Pattah and Kychit evidenced the contract which determined the rights of the
Kanam tenant and the Devaswom. Therefore, the definitions of 'holding',
'michavaram', 'Kanam', 'Renewal fee' and 'Janmikaram' in s. 2 of the Act
applied to all lands held by Kanamtenants whether they were Devaswom or
non-Devasom. Further, though the Rules under the Proclamation are not expressly
repealed by the Act, the Act must be deemed to have partially superseded the
Proclamaton and the Rules in so far as the latter related to the rights and
obligations of the Kanam- tenants in the three religions, the Act is not
discriminatory. Board. [732 B-D; 733 A-B] 725 (ii)The Act does not infringe the
guarantee of equal protection of the laws in Art. 14 of the Constitution.
Though the Act only applies to the Cochin
area of the State of Kerala which consists of the three regions of Travancore,
Cochin and Malabar, since there is a difference between the relations governing
the Jenmies and the Kanam-tenants in the three religions, the Act is not
discriminatory. [734 C-E]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 11-18 of 1964.
Appeals from the judgment and orders dated
November 7, 15, 1960 of the Kerala High Court in Original Petitions Nos. 269,
284, 129, 250, 285 and 265 of 1957, and 102 and 269 of 1958 respectively.
M.K. Nambyar, P. K. Krishnan Kutty Menon, B.
Dutta, J.B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the appellant.
Niren De, Additional Solicitor-General, A. G.
Pudissery and M. R. K. Pillai for the respondent the State of Kerala (In C. As.
Nos. 17 and 18 of 1964).
The Judgment of the Court was delivered by
Shah, J. Two questions fall to be determined in these appeals:
(1) Whether the Travancore-Cochin Kanam
Tenancy Act 24 of 1955 governs lands held from Devaswoms (religious
institutions) in the Cochin region of the State of Kerala;
and (2)Whether the Act infringes the
guarantee of equal protection of the laws and is on that account void? Kanam
tenure has a feudal origin. Broadly stated it is a customary transfer which
partakes of the character of a mortgage and of a lease: it cannot be redeemed
before a fixed number of years-normally twelve-and the (Kanamdar)
mortgagee-lessee is entitled on redemption to compensation for improvements.
The annual payments to the (Jenmi) mortgagor-lessor are regulated by what
remains of the fixed share of the produce after deducting interest. If the land
is not redeemed on the expiry of 12 years, a renewal fee becomes payable to the
jenmi. The Cochin State Manual contains the following description of the kanam
tenure in the Cochin region:
"The Verumpattam (simple lease) becomes
a kanam lease when the janmi (landholder) acknowledges liability to pay a lump
sum to the tenant on the redemption of his lease. In the old days his liability
was created in most cases as a reward to the tenant for military or other
services rendered by him, but in more recent times, kanam encumbrances were
generally created by the janmi borrowing money from his tenant to meet any
extraordinary 726 expenditure by the conversion of the compensation payable to
Kuzhikanam (lessee who had a right to make improvements) holders into a kanam
debt, or by the treatment of the amount deposited by the tenant for the
punctual payment of rent and husband-like cultivation as a charge on the land.
In kanam leases the net produce, after deducting the cost of seed and
cultivation, is shared equally between the landlord and the tenant, and from
the share of the former the tenant is entitled to deduct interest on the kanam
amount at five per cent. The overplus, that is payable to the janmi after making
these deductions, is known as michavaram. The kanamdar is entitled to the
undisturbed enjoyment of the land for twelve years, but formerly it was for the
life time of the demisor. At the end of this period, the lease may be
terminated by the janmi paying the kanam amount and the value of the
improvements effected by the tenant, or it may be renewed on the latter paying
a premium or renewal fee to the landlord." After the expulsion in 1762 of
the Zamorin of Calicut who had invaded Cochin, the Ruler of Cochin divested the
chieftains who had supported the invader of their administrative powers and
confiscated their properties and the Devaswoms under their management. Managers
of the major Devaswoms who had welcomed the invader were also deprived of their
powers, and administration of a large majority of Devaswoms was assumed by the
State. Some minor Devaswoms were later taken over by the State, because of
incompetent or dishonest management, and a scheme was devised by the State for
maintenance of accounts of the Devaswom properties and for administration of
the affairs of the Devaswoms according to the existing usage. The Devaswoms,
revenues and expenditure whereof were thus completely merged in the general
revenues, were called 'Incorporated' Devaswoms.
Sometime after the incorporation of these
Devaswoms, management of two wellknown endowed temples was surrendered to the
Ruler, but administration of these Devaswoms was not amalgamated with the
"Incorporated" Devaswoms and their expenditure continued to be met
from the receipts from the temples. Later the State assumed management of some
more Devaswoms and treated them in the same manner as the two major temples.
These institutions which were later acquired were treated as independent of
each other as well as of the "Incorporated" Devaswoms and were called
"Unincorporated" Devaswoms.
On February 11, 1910, the Ruler of Cochin
issued a Procla- mation publishing rules to secure better administration of the
Incorporated and Unincorporated Devaswoms. The rules provided that the
endowments attached to and the income derived from 727 the Devaswoms, whether
"Incorporated" or Unincorporated", shall be constituted into a
Common Trust for all administrative purposes, that accounts shall be maintained
as directed and that the surplus after defraying the expenses shall be
appropriated in the manner prescribed. By cl. 9 the Diwan of the State was
given authority to frame rules for carrying out the main object and the scheme
of the Proclamation, and the rules so framed were to have the same force and
validity as the Proclamation, and were to regulate the renewals, prescribe the
mode of collection of rents as well as rates of rents payable by tenants, and
to provide for such other matters as may be necessary for securing efficiency
and uniformity in the administration of the landed properties belonging to all
Devaswoms. The Diwan of Cochin promulgated on March 21, 1910, rules regulating
procedure in the matter of collecting Paattam, Michavaram, renewal fee and
other dues payable to Devaswoms and other religious institutions. The rules
provided for maintenance of public registers in respect of landed properties,
payment of rent due by the tenants to the Devaswom Officer and prescribed
methods for recovery of arrears by sequestration of property either temporarily
or permanently. These rules applied to all tenants-ordinary and kanam.
On November 8, 1910, some more rules were
published by the Diwan. These rules were designed to regulate the principles
and procedure to be observed in fixing the rates of rents, renewal of holdings
and for securing efficiency and uniformity in the administration of landed
properties of all the Devaswoms. By cl. 5 the principles to be followed in the
classification of lands and for fixing rents were prescribed. It was directed
by cl. 8 that the lands shall.' be carefully examined and classified with
reference to soil, situation, productiveness, drainage and irrigation
facilities and other relevant considerations. By cl. 13 all Devaswom lands held
under kanam, and other tenures of a cognate nature were to be charged full rent
fixed in accordance with the provisions of Part II of the Rules,, but from the
full rent so charged, deductions were to be made on account of interest on
kanam etc. By cl. 16 it was provided that holdings of land under kanam and
other tenures were subject to, renewal periodically once in fifteen years, at
each of which occasion. the tenant was liable to pay renewal fee calculated at
the customaryrates revailing in each Devaswom.
On July 12 ,1911, supplementary rules were
published to regulate the administration of lands belonging to Devaswoms and
for maintenance of accounts connected therewith. By cl.
3 rights and obligations under a Pattah to be
issued by the Devaswom were prescribed and these obligations under the Pattah
were to be embodied in a kychit (undertaking) which each Devaswom tenant
receiving a Pattah had to execute.
728 On October 24, 1914, the Maharaja of
Cochin Promulgated the Cochin Tenancy Act II of 1090 M. E. (1914 A.D.). The ex-
pression "Kanam tenant" was defined by s. 2 (c) as meaning a tenant
who holds lands on payment of consideration in money or in kind or partly in
money and partly in kind to the landlord for his holding, and on a demise made
or renewed by a landlord on a tenure that is subject to renewal after a fixed
period on payment of a renewal fee. "Michavaram" was defined in s. 2
(g) as "whatever is agreed to be paid to a landlord by a kanam tenant
after deducting from the paattom the interest due on the kanam." Provision
was made in Ch. III for renewals of kanam holdings and ejectment of kanam
tenants and for other incidental matters.
On May 29, 1949 the Rulers of Travancore and
Cochin States ,entered into a covenant for the formation of the United State of
Travancore-Cochin. On January 26, 1950 the State of Travancore Cochin became a
Part 'B' State within the Union of India. By s. 62 of Act 15 of 1950 effect was
given to Art. 8-D of the covenant and it was provided that the administration
of "Incorporated" and "Unincorporated" Devaswoms and Hindu
religious institutions which were under the management of the Ruler of Cochin
immediately prior to the first day of July, 1949, and all their properties and
funds and the estates and all institutions under the manage- ment of the
Devaswom Department of Cochin, shall vest in the Cochin Devaswom Board. By s.
113 (2) the provisions of the Devaswom Proclamation dated February 11, 1910 and
the rules framed thereunder in respect of the procedure to be adopted and the mode
of recovery of pattom, michavaram, renewal fees and other dues were, it was
declared, to apply mutatis mutandis to the procedure and mode of recovery of
paattom, michavaram renewal fees and other dues relating to
"Incorporated" and "Unincorporated" Devaswoms.
The Legislature of the State of
Travancore-Cochin enacted Act 24 of 1955 called the Travancore-Cochin Kanam
Tenancy Act 24 of 1955 with the object of conferring full proprietary rights on
kanam tenants in the Cochin area subject only to the payment of janmikaram and
to provide for the settlement, collection and payment of janmikaram and for
matters incidental thereto. By s. 3(1) of the Act it was provided :
"From and after the commencement of this
Act the Jenmi shall not have any right, claim or interest in any land in a
holding except the right to receive the jenmikaram thereon and the kanam-tenant
shall be deemed to be the owner of the land subject only to the payment of the
jenmikaram.
Explanation
(1).................................
729 Explanation (2).......................
Explanation (3).....................
The jenmi's right as well as the kanam
tenant's right were declared Heritable and transferable by sale, gift or
otherwise. By s. 5, Jenmikaram was made a first charge on land. Under the
customary kanam-tenure the jenmi was either a lessor or a mortgagor having
rights of ownership in the land, but by Act 24 of 1955 the relationship was
fundamentally altered; subject to payment of jenmikaram the kanam-tenant was
declared a proprietor of the land and the right of the jenmi was only to
receive the jenmikaram.
After the enactment of Act 24 of 1955 the
Cochin Devaswom Board (which was constituted under s. 62 of the Travancore-
Cochin Hindu Religious Institutions Act 15 of 1950) claimed to recover
Michavaram at the rates settled under the rules made in exercise of the power
conferred by cl. 9 of the Proclamation of 1910. The kanam-tenants thereupon
petitioned the High Court of Kerala for a writ of certiorari, prohibition or
other writ quashing the notices of demand issued by the Board and all
proceedings taken by the Assistant Devaswom Commissioner. It was claimed by the
kanamtenants that on expressing their readiness to pay jenmikaram settled under
the rules framed under Act 24 of 1955, they were entitled to hold the lands in
their occupation as proprietors and the Board could not demand any amount in
excess of the jenmikaram. The Board presented in their turn two petitions
praying for the issue of writs of certiorari or other appropriate writ quashing
notices issued by the Jenmikaram Settlement Officers under the provisions of
the Kanam Tenancy Act 24 of 1955 in respect of the lands owned by
"Unincorporated" Devaswoms and for a writ of prohibition against
those Officers from enforcing the provisions of Act 24 of' 1955 and the rules
framed there under. The Board claimed that the provisions of Act 24 of 1955 did
not apply to land held by its kanam tenants, and that in any event the
proceedings taken by the. Jenmikaram Settlement Officer for settlement of the
jenmikaram payable by its kanam-tenants and the rules framed there under
"were illegal and ultra vires of their powers." The High Court of
Kerala held that by the enactment of Act 24 of 1955, the Board's fundamental
rights under Art. 31(2) or under Art. 14 of the Constitution were not
infringed, and that the Board could not demand payment of Michavaram as
regulated by the Proclamation of 1910, because the provisions settling the
Michavaram under the Proclamation were superseded by Act 24 of 1955. The High
Court accordingly rejected the petitions filed by the Board and directed the
Board in the petitions filed by the tenants "not to proceed further under
the notices issued" against the kanam-tenants.
730 The two questions raised in the appeals
may now be consider- ed. Counsel for the appellants says that whereas under the
Proclamation of 1910 and the rules framed thereunder there is a statutory
fixation of Michavaram and the renewal fee in respect of the lands held by
kanam-tenants belonging to the Devaswoms which later came to be vested in the
Board, Act 24 of 1955 only applies' to kanam-tenants holding lands under
contracts with jenmis. The relation between the jenmi and the kanam-tenant in
respect of lands Devaswom "Incorporated" or "Unincorporated"
is, it is urged, governed by the terms of the Proclamation and the rules framed
thereunder relating to fixation of Michavaram and renewal fee, whereas Act 24
of 1955 deals with liability to pay jenmikaram in respect of land held under an
engagement by a kanam-tenant with a jenmi. In support of this contention,
reliance is placed primarily upon the definitions in s. 2 of the Act of
"Jenmikaram", "Jenmi" -"Renewal fee"
"Holding", "Kanam" and "Michavaram. The ,expression
"Jenmikaram" was defined by S.
2 (13) as the amount "payable in respect
of that holding or land under the provisions of this Act by the kanam-tenant to
the jenmi every year in lieu of all claims of the jenmi in respect of the
holding, or land and shall be the sum total of the michavaram and the
fractional fee"; "kanamtenant" was defined by s. 2 (12) as a
person who holds land on kanam tenure; and a "Jenmi" was defined in
s. 2 (3) as "a person immediately under whom a kanam-tenant holds".
"Renewal fee" was defined in S. 2 (I 1) as fee or fees payable by a
kanam- tenant to his jenmi under the contract of tenancy for the renewal of the
legal relationship under which the kanam- tenant has been holding any land.
"Holding" was defined by s. 2 (2) as a parcel or parcels of land held
under a single engagement by a tenant as a kanam from a jenmi and shall include
any portion of a holding as above defined which the jenmi and kanam-tenant have
agreed to treat as a separate holding. By s. 2 (4) "Kanam" meant a
demise with the incidents specified therein. "Michavaram" was defined
by S.
2 (6) as meaning the balance of money or
produce or both payable periodically under the contract of tenancy to the jenmi
after deducting from the pattom the interest due on the kanam amount and
purankadam, if any. Relying upon these definitions it was urged that the Act
applies only to land held under a contract of tenancy and not to land in
respect of which the Michavaram and the renewal fee are governed by rules
framed under the Proclamation of 1910. It was claimed that the definitions in
the Act disclosed clearly an intention not to interfere with the relation
between the kanam-tenants and jenmis in respect of the Devaswom lands-
"Incorporated" or "Unincorporated". This argument in
substance canvasses the plea that the relations between kanamtenants of the
Devaswom lands were not governed by contracts.
This plea is, in our judgment, without
substance. It is true that by Part II of the Rules dated November 8, 1910
'Issued in 731 exercise of the powers under cl. 9 of the Proclamation of 1910
rules were framed for fixation and collection of "michavaram",
"paattom" renewal fee and other dues in respect of Sirkar Devaswoms
and other religious institutions. By cl. 13 of the Rules, rent in respect of
all Devaswom lands held under kanam tenure was to be fixed in accordance with
the provisions of Part 11 of those Rules and the kanam-leases are to be renewed
every fifteen years as provided in cl. 16. By cl. 25 it was provided that
before the introduction of the new rates of rent, a rough Pattah will be
furnished to each tenant, showing the details of his holding, rent to be paid,
the kanam amount, interest deductions and renewal fees fixed on the kanam
holding, if any, Provision was then made in cls. 27, 28 & 29 for lodging
objections relating to the draft Pattah and determination thereof, and for the
issue of a final Pattah in Form C under the signature of the Devaswom
Commissioner setting out the particulars of his holding, the rent due from him
in kind as well as in money including miscellaneous items, the kanam amounts,
interest deductions and renewal fees on kanam lands held by him and the number
of instalments in which the rent was payable. Clause 29 further provided that
the Pattah so issued shall be considered to be sufficient acknowledgment by the
Government of the tenant's right to occupy the land or lands comprised in his
holding on the conditions specified in the Pattah and that the tenant's
obligations on these conditions shall be embodied in a corresponding kychit. By
paragraph-s of the supplementary rules dated July 17, 1911 which were intended
to regulate the administration of lands belonging to Sirkar Devaswoms the
rights and obligations under the Pattah were prescribed, and by sub-paragraph
(f) of that paragraph it was provided that the obligations under a Pattah shall
be embodied in a kychit in Form Appendix II which each Devaswom tenant
receiving a Pattah shall execute. The Form in Appendix II was as follows :
"Kychit executed by Pattadar No of Desam
Village Taluk relating to Devaswom properties in group of Cochin State before
the Devaswom Katcherry (Office).
granted from the Devaswam relating to
properties in my possession and which are Devaswam Janmam lands, the Paattam
Michavaram (annual rent) Puravka (customary dues) etc. will be paid by me after
necessary cleaning the quantity of paddy according to kist mentioned in the
Patta.
After payment in kind and cash I shall take a
receipt for the same. In case of default for any instalment, I shall pay the
proper interest for such sum. In the alternative if I cause any loss to the
Devaswam agree to the realization of such losses caused to Devaswam 732 by
taking appropriate legal steps by the Devaswam against me. Besides I am bound
by all the orders of the Dewan from time to time made under the Royal
Proclamation of 29th Makaram 1085 (11-2-1910)." The scheme of the Rules
clearly was that an offer of a Pattah on the terms specified in a rough draft
was to be made to a tenant. The tenant was entitled to raise objections thereto
and after the objections were heard and disposed of, a final Pattah was to be
given to the tenant and the kanam-tenant had to execute the kychit in favour of
the State. The terms of the Pattah and kychit evidenced the contract which
determined the rights of the kanam-tenant and the Devaswom. It is true that
under the Proclamation of 1910 and the rules framed thereunder, the quantum of
Michavarwn and renewal fee was determined in accordance with the rules. But the
kychit constituted an engagement with the Board, and land held by a
kanam-tenant under the Kychit was a holding within the meaning of Act 24 of
1955. The Pattah constituted a demise within the meaning of sub-s. (4) of s. 2,
Michavaram defined in s. 2 (6) was deemed payable under the contract of tenancy,
and renewal fee under s. 2 (11) was payable under that contract of tenancy. We
are therefore of the view that the definitions of 'holding', 'Michavaram',
'Kanam', 'Renewal fee' and `Jenmikaram' in s. 2 of Act 24 of 1955 applied to
all lands held by kanam- tenants whether the lands held were Devaswom or non-
Devaswom.
It is true that the Proclamation of 1910 and
the rules framed thereunder have not been repealed by the Act. But they could
not be repealed for reasons which are obvious.
The machinery for grant of Pattah and the
execution of kychit was prescribed under those rules. The repeal of the
Proclamation and the rules framed thereunder would have necessitated a fresh
enactment under which the terms which were to govern the relations between the
jenmi and the kanam-tenant were determined. Again repeal of the Proclamation
would have necessitated re-enactment of cls. 2 & 3 thereof which set up a
Common Trust and prescribed the management through the Devaswom Department.
Again the rules framed by the Diwan set up machinery for fixation of rent and
other dues and for recovery thereof in respect of lands held on kanam and other
tenures as well. No inference may therefore arise from the notifications issued
by the State after enactment of Act 24 of 1955 in pursuance of the rules and
Proclamation of 1910 that the Act was not intended to apply to kanam-tenants
holding lands from Devaswoms. The notifications dated February 4, 1958, and
July 1, 1958 issued by the Kerala Government in exercise of the powers conferred
by cl. 9 of the Cochin Proclamation amended the supplementary rules regulating
the administration of lands belonging to Sirkar Devaswoms and thereby enabled
tenants from whom paddy demand was due according to Pattah to deliver the 733
same in kind or pay the value of paddy calculated at the average nirak rate
published by the Government. The notifications are in general terms and could
apply to tenures other than those governed by the statute enacted by the
Legislature. The Act must be deemed therefore to have partially superseded the
Proclamation and the rules framed in so far as the latter related to the rights
and obliga- tions of the kanam-tenants in respect of land held by them from the
Devaswom Board.
The plea about infringement of the fundamental
rights of the Devaswom Board by the enactment of Act 24 of 1955 needs no
elaborate discussion. In the High Court the plea was sought to be sustained on
the grounds that the Act infringed the fundamental rights under Art. 14 and
also under Art. 31 (2) of the Constitution. Before us no argument has been
advanced in support of the plea that the Act infringes the right under Art. 31
(2) and nothing more need be said about it. Before dealing with the plea of
infringement of the right of equality before the law, it is necessary to set
out the case of the Board as pleaded in their affidavit in reply to the
tenants' claim. In paragraphs of the counter- affidavit filed. by the Board in
reply to the tenants' petition, it was submitted "The Jenmies of the erstwhile
Cochin area where alone the Kanom Tenancy Act has been made applicable have
been denied equality before the law and equal protection of the laws in
enacting the Kanom Tenancy Act. The Legislature discriminates the Jenmies of
the Cochin area as against Jenmies similarly situated in the Travancore and
Malabar areas of the State. The classification made is unreasonable and there
is no reasonable nexus between the classification and. the object sought to be
achieved by the Act. It is therefore submitted that the Kanom Tenancy Act, XXIV
of 1955, offends Article 14 of the Constitution." In petition No. 102 of
1958 filed by the Devaswom Board, by paragraph 9 (e) it was submitted "The
Kanom Tenancy Act offends Article 14 of the Constitution in that the Jenmies in
the erstwhile Cochin State have been denied equality before law and the equal
protection of the laws. It discriminates the Jenmies of the Cochin area as
against the Jenmies similarly situated in Travancore and Malabar areas of the
Kerala State. The grouping of Kanom tenants in Cochin area for purposes of
legislation is not based on any reasonable classification or conceived in the
interests of the general public." The argument raised on behalf of the
Board in the two sets of petitions is that the Act only applies to the Cochin
area and does 734 not apply to the whole State of Kerala which consists of
three regions, viz., Travancore, Cochin and Malabar and is on that account
discriminatory. The argument assumes that the principal incidents of the
kanam-tenure in the three regions of the Kerala State are identical and that
when Act 24 of 1955 was enacted, without any rational ground a distinction was
made between the Jenmies in respect of kanam lands in the Travancore and Cochin
regions and after the reorganisation of the State in 1936 that discrimination
was perpetuated even qua the Jenmies in the Malabar region.
This assumption on the finding recorded by
the High Court on an extensive review of the legislative history in the three
regions has no basis in fact. The relation between the Jenmies and the
kanamtenants in the Travancore region was governed by the Jenmi and Kudiyan
Regulation No. 5 of 1071, as later modified by Regulation No. 12 of 1108. The
incidents of the kanam-tenure in Travancore region were substantially different
from those prevailing in Cochin.
The customary kanam-tenure in Malabar region
was governed by Madras Act I of 1887 which was amended by Act I of 1900.
Later the Madras Legislature passed the
Malabar Tenancy Act 14 of 1930 which was amended by Acts 33 of 1951 and 7 of
1954. From a review of the provisions of the Act, the High Court observed that
no renewal fee could be levied from a kanamdar in the Malabar region and that
fixity of tenure was conferred by s. 25 of Act 14 of 1930, that whereas in the
Malabar region no renewal fee was required to be paid, in the Travancore region
fractional fee was ,charged and that in the Cochin region a renewal fee
calculated under s. 28 was payable under the Cochin Tenancy Act 15 of 1938. The
Jenmies in the three regions were therefore not similarly circumstanced. If the
Legislature with a view to agrarian reform selected the Cochin region and
enacted an Act limited to that region, it could not be said, merely on the
ground that it applies only to the Cochin region, that it is based on no
intelligible differentia. The Board only pleaded that by the enactment of the
Act there was discrimination between Jenmies in the three regions. In the
absence ,of any plea and proof about relative fertility of the soil, nature of
crops raised, extent of holdings, historical development of the kanam-tenure
and the terms on which the kanam-tenants hold land from the Jenmies, it would
be impossible to decide whether the Jenmies in the three regions are similarly
Circumstanced and that the Legislature has made an unlawful discrimination by
providing a different tariff of payments.
A person relying upon the plea of unlawful
discrimination which infringes a guarantee of equality before the law or equal
protection of the laws must set out with sufficient particulars his plea
showing that between the persons similarly circumstanced, discrimination has
been made which is founded on no intelligible differentia. If the claimant for
relief establishes similarity between persons who are subjected to a
differential treatment it may lie upon the State to establish 735 that the
differentiation is based on a rational object sought to be achieved by the
Legislature. In the present case the pleading of the Devaswom Board is wholly
insufficient to discharge the onus of proving similarity of status between the
Jenmies in the three regions, and the findings recorded by the High Court which
are not challenged before us clearly show that there is a difference between
the relations governing the Jenmies and the kanam-tenants in the three regions.
The plea about infringement of the fundamental right under Art 14 of the
Constitution must therefore fail.
The appeals are dismissed with costs. One
hearing fee in all the appeals.
Appeals dismissed.
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