Full Judgment Text
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PETITIONER:
COCHIN DEVASWOM BOARD, TRICHUR
Vs.
RESPONDENT:
VAMANA SHETTY AND ORS.
DATE OF JUDGMENT:
02/03/1966
BENCH:
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’,
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’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]
JUDGMENT:
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
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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.
Some time 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,
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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
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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
thereunder. 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 thereunder "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
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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
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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)
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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
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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 ofunlawful discrimination
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which infringes a guarantee of equalitybefore the law or
equal protection of the laws must set out withsufficient
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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