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1950 DIGILAW 20 (KER)

Vareed v. State

1950-03-11

SANKARAN, SUBRAMONIA.IYER

body1950
Judgment :- 1. O.P. 6/1950 is an application under Art. 226 of the Constitution of India praying that "the Court may be pleased to order the Government of the Travancore-Cochin State and the Paliam Manager under the Government not to proceed under the Cochin Revenue Recovery Act to recover arrears due to the Paliam from the petitioner or from the Paliam tenants." 2. The Paliam is an ancient Nair Tarwad of the erstwhile Cochin State. In the year 1095, the Cochin Nair Act, XIII/1095 was passed which, in chapters 6, 7 and 8, made provision for the management of the tarwad, the partition of properties, and for the constituting of tarwads impartible. In 1097 the Paliam Tarwad Act, VIII/1097 was passed, the preamble whereof is as follows: "Whereas the Paliam Tarwad is the most ancient family in the State of Cochin, having its long family traditions of prestige and of usage conductive to its dignity and position, and whereas some of the provisions of the Cochin Nair Act, XIII of 1095 cannot be made applicable to the said Tarwad and its properties without affecting its position and the welfare of its tenants; it is hereby enacted as follows:". S.3 of the Act saves the Tarwad from the operation of Chapters 6, 7 and 8 of the Nair Act and S. 4 provides that: "The tarwad property shall be managed and administered in accordance with the Karar as modified by the provisions of this Act." That karar is an appendix to the Act. Paragraphs 2 and 3 of the karar read as follows: "2. The Council shall consist of five members of whom the Valia Achan and Cheria Achan by virtue of their position and the Chief Manager by virtue of his office shall be ordinary members, while the other two shall be nominated extraordinary members. 3.Of the extraordinary members one shall be the Chief Court Vakil who is the legal adviser of Paliam for the time being and the other shall, if possible, be a pensioned officer of the Cochin Government not below the grade of a Tahsildar or Munsiff." On 15.3.1111 His Highness the Maharaja of Cochin issued the Paliam Proclamation, whereunder the management of the Paliam Estate was assumed by the Government. Act VIII/1097 was kept in abeyance during the period of such management and by Cl. Act VIII/1097 was kept in abeyance during the period of such management and by Cl. (8) it was provided that: "The provisions of the Revenue Recovery Act, IV/1083 with all its amendments shall, during the period of management of the Paliam Estate by Our Government, apply for the recovery of dues due to that estate whether now in existence or accruing due in future." On 14.3.1123 His Highness the Maharaja promulgated a Proclamation extending the period of such management for a further period of twelve years. Cl. (8) of that Proclamation runs thus: "The provisions of the Cochin Revenue Recovery Act, IV of 1083 shall apply for the recovery of dues already accrued due or accruing due in future in respect of the Estate during the period of its management by our Government." Act VIII/1097 and S.10 of the Proclamation of 1123 were repealed by Act VIII/1124 which provides that the management of the Paliam Estate by the Government will continue until partition of the Estate, which was desired by the members of the Tarwad and which was rendered possible by the aforesaid repeal, is actually complete. 3. The petitioner is a tenant under the Paliam. He filed O.S. 14/1119 on the file of the District Court, Anjikaimal for a declaration that he is not in arrears. The suit was dismissed as not maintainable by the District Judge, against whose decree, A.S. 95/1120 on the file of the erstwhile Cochin High Court was filed. This also was dismissed but with an observation to the effect that as the Government is in management of the Paliam estate the petitioner could get redress of his grievance by approaching the authorities concerned, and should the authorities not mete out justice to him the law provides him redress and remedies and the Court will not be slow to interfere should proper grounds therefore be made out. On 24.8.1950 the petitioner filed O.S. 18/1950 in the Anjikaimal District Court against the respondent, the State of Travancore-Cochin, for accounts of the amounts due from him to the Paliam Estate, of the amounts paid by him towards these and for recovery of excess payments that he may be found to have made after fixing the arrears due from him in respect of his holding until a particular date. The cause of action for the suit mentioned by him was that whereas no arrears were due from him, the respondents were taking action under the Revenue Recovery Act for realisation of alleged arrears by attachment and sale of his holding. Along with the suit he filed M.P. 229/1950 for a temporary injunction restraining the respondent from pursuing the steps started by them. Soon after the coming into force of the Constitution of India, the petitioner prepared this O.P. on 5.2.1950 and filed it in court on 10.2.1950. The application for temporary injunction was finally heard by the District Judge on 26.7.1950 and dismissed by him on the same day, C.M.A. 230/1950 has been filed against that order. 4. The main ground relied upon by the petitioner for the relief that he asks is that Cl. 8 in the Paliam Proclamation rendering the provisions of the Cochin Revenue Recovery Act applicable for recovery of the dues to the Paliam Estate offends Art.14 of the Constitution which provides that: "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." The contention is that Cl. (8) of the Proclamation is discriminatory in that it makes the provisions of the Revenue Recovery Act available to the Paliam Estate who can be regarded only as a landlord and citizen of India just like any other, that the Paliam is granted immunity from the necessity to file suits for recovery of dues paying court-fee thereon, that the Paliam is enabled to recover claims barred by limitation by resort to the Revenue Recovery Act which could not be recovered if resort be had to the civil Court, that the petitioner and other tenants under the Paliam are deprived of their right to put forward their defence against claims for rent which they could do in the civil Court and that they have to pay up the dues earlier than they would have to do if the procedure in the civil court is pursued. (1) It is alleged that facilities are afforded to the Paliam for claiming of "Para Vasi" and transport charges not really due and to commute paddy into money at rates higher than that allowed by the law. (1) It is alleged that facilities are afforded to the Paliam for claiming of "Para Vasi" and transport charges not really due and to commute paddy into money at rates higher than that allowed by the law. It is also alleged that the tenants under the Paliam in the Travancore area are not subject to the procedure under the Cochin Revenue Recovery Act unlike the tenants in the Cochin area. The legislation above-mentioned relating to Paliam is not as such impugned. The attack is confined to Cl. (8) and the nature of the attack is not that it is beyond the competence of the Legislature which passed it, but that it offends Art. 14 of the Constitution of India after which it can have no force. 5. The Government of Cochin in exercise of His Highness's Royal prerogative have assumed the management of the estates of other families than the Paliam. The Chazhur Kovilakam, Pallippurathu Mana, Padinjattiyedathu Mana are instances and Proclamations 1/1114, XII/1118 and IV/1119 respectively relate to these families. All these Proclamations alike provided for the application of the procedure prescribed by the Revenue Recovery of rent and other dues. 6. Learned counsel for the applicant urges that under Art. 14 of the Constitution, a citizen of India has got not merely the rights of an Englishman but also those of an American. This position can be accepted because Art. 14 which refers to "equality before the Law" which is an expression of English Common Law and "equal protection of Laws" which owes it origin to the 14th amendment of the American Constitution, indicates these as separate concepts by the use of the disjunctive "or". The legislation in question, however, does not impinge upon the rights of the applicant in regard to the one or the other. "A law applying only to one person or one class of persons is constitutional if there is sufficient basis or reason for it." Willis on Constitutional Law (American) 1936, page 580, quoted by Fazl Ali, J. in Charanjit Lal v. Union of India (1950(1) Supreme Court Reports 869) _ ((1951) 6 D.L.R. S.C. 432) relating to the Sholapur Spinning & Weaving Company (Emergency Provisions) Ordinance, II of 1950. "The principle of equality before the law does not come into play in any controversy as to the legality of a law enacted by the State. "The principle of equality before the law does not come into play in any controversy as to the legality of a law enacted by the State. It comes into play really in the sphere of its enforcement. This is obvious from the fact that Professor Dicey who treats it as one of the fundamentals of the British Constitution was well aware of the supremacy of the British Parliament in the making of laws. No question can arise in Britain of an Act of Parliament being invalid, because it contravenes the principle of equality before the law. So when Professor Dicey speaks of the principle being an essential part of the Constitution, it only means that the laws of the land shall be enforced against all persons equally without any distinction being made on any ground whatsoever. In my opinion, it is this sense that the phrase "equality before the law" is used in Art. 14." Per Rajamannar, C.J. in V.G. Row v. State of Madras (AIR 1951 Mad. 147 FB) 7. The question then is whether there is any discrimination in the sphere of the enforcement of the law, that is to say, whether Cl. (8) of the Paliam Proclamation is enforced against the applicant only or against other tenants as well. The application itself affords an answer in the prayer contained therein to the effect that the direction must be for restraining the enforcement of Cl. (8) of the Proclamation against the applicant as also against all the tenants of the Paliam Estate, though the applicant has not pleaded or proved any authority to champion the cause of the others. It is not contended that there has been, is, or will be any discrimination in the treatment of the tenants. 8. The counter-affidavit filed on behalf of the respondent by the Manager states that no claim that is barred by limitation is being or can be enforced or sought to be recovered by the application of the provisions of the Revenue Recovery Act. The allegation that moneys not due are being realised under para vasi, transport charges or otherwise is repudiated. It is also stated therein that as regards the court fee upon dues recovered without resort to court, the Government is compensated from out of the Estate by payment of the amount of court fee which would have been payable had suits been brought to realise the dues. It is also stated therein that as regards the court fee upon dues recovered without resort to court, the Government is compensated from out of the Estate by payment of the amount of court fee which would have been payable had suits been brought to realise the dues. It is thus clear that there is no discrimination shown against the applicant as distinguished from other tenants of the Paliam, that the Government does not lose any court fee on account of the application of the provisions of the Revenue Recovery Act, and that the application of the Act is much to the advantage of the applicant and other tenants because, they have not to pay court fee, the liability for which they would have been saddled with, had resort been made to the civil court. In this respect it is an obvious advantage to the applicant and the other tenants. Indeed the welfare of its tenants as much and as well as that of the landlord the Paliam, was what motivated these legislative measures as the preamble to the earliest enactment, read above, itself shows. Irregularities or defects, if any, in the pursuing of that procedure can be got remedied by an appeal to the Peishakar and a further revision to the Government. If proceedings are taken illegally or without jurisdiction or if anything is realised in excess of what is legally due, a suit in the civil court for redress in respect thereof is provided by the Act. (See Ss. 41, 61, 63). The averment that the Manager is the judge in his own cause and that the tenants do not get justice is thus devoid of foundation. Far from being a ground for complaint, the application of the Revenue Recovery Act is thus obviously a blessing to the tenants. It is not a benefit conferred upon the Paliam Estate but is merely incidental to the management of that estate by the Government as the provisions are applicable only during the time that the Government is in management. 9. The argument urged on behalf of the petitioner that the tenants would not have the advantage of the time that they would get if resort be made to the civil court on account of the law's delays cannot be accepted. 9. The argument urged on behalf of the petitioner that the tenants would not have the advantage of the time that they would get if resort be made to the civil court on account of the law's delays cannot be accepted. Law's delay is surely not an advantage for whose deprivation or diminution a litigant can seek redress but is rather a grievance from which he has to be given relief and the aim of adjective law and its reform is and should be directed to minimising, if not altogether eliminating it. Not infrequently justice delayed would be justice denied. Expeditious disposal of causes without encroaching upon or endangering efficiency should be the principle guiding judicial administration. 10. A point of discrimination between tenants that is relied upon by the applicant is that the application of the Cochin Revenue Recovery Act is limited to the tenants in the Cochin area and that the tenants of the Travancore area are free therefrom. The law in question was one passed by the Cochin Legislature. Its operation was therefore confined to the territory of Cochin. The State of Travancore and Cochin became a single State by integration. Pursuant to the provisions in that behalf contained in the "Covenant entered into by the Rulers of Travancore and Cochin for the formation of the United State of Travancore-Cochin", the Raj Pramukh promulgated Ordinance I of 1124 providing, inter alia, that: "The existing laws of Cochin shall, until altered, amended or repealed by competent authority, continue to be in force mutatis mutandis in that portion of the territories of the United State which before the appointed day formed the territory of the State of Cochin." S.4(1). Act VI/1125 of Travancore-Cochin State made a similar provision in S.4. This Act is still in force and operation and it cannot, therefore, be stated that the non-application of the provisions of a Cochin Act to the Travancore area amounts to an objectionable discrimination. Similar provisions are made regarding the existing laws of Travancore. Art.14 of the Constitution should be applied so far as the Travancore-Cochin State is concerned in the light of the aforesaid provisions of the law applicable to the Cochin and Travancore areas comprised in the State. 11. Similar provisions are made regarding the existing laws of Travancore. Art.14 of the Constitution should be applied so far as the Travancore-Cochin State is concerned in the light of the aforesaid provisions of the law applicable to the Cochin and Travancore areas comprised in the State. 11. Almost all the grounds relied upon by the applicant in his application for the grant of the relief are alleged by him in his plaint in O.S. 18/1950 which is pending before the Anjikaimal District Court and the relief by way of an order restraining the proceedings under the Revenue Recovery Act was asked for by the applicant in C.M.P. 229/1950 and was refused by that court in the proper exercise of its discretion. That petition was pressed and argued by the applicant when this Original Petition was pending before this Court. 12. The availability of other remedies or the pendency of other proceedings is no doubt no bar to the High Court issuing writs, passing orders, or giving directions under Art.226 of the Constitution and it is for the High Court to consider in each case the necessity or desirability of interference notwithstanding the availability or the existence of other remedies or proceedings. No occasion for any such consideration arises here because the applicant has not made out a case for any relief, his compliant of a violation of his fundamental rights under Art. 14 of the Constitution being altogether unfounded. 13. We cannot conclude this judgment without quoting from the judgment of the Supreme Court in Charanjit Lal v. Union of India (1950 (1) Supreme Court Reports 869) = (1951) 6 D.L.R. S.C. 432) wherein Fazl ali, J. said: "Art. 14 of the Constitution as already stated, lays down an important fundamental right, which should be closely and vigilantly guarded, but in construing it, we should not adopt a doctrinaire approach which might choke all beneficial legislation." p. 884. 14. The result is that the application should be dismissed. The applicant will pay the costs of the respondent with advocate's fee which we fix at Rs. 250/-. The C.M.A. should also be dismissed with costs. Dismissed.