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1955 DIGILAW 47 (KER)

Jamath Mosque v. Joseph

1955-03-10

M.S.MENON, SANKARAN, SUBRAMONIA.IYER

body1955
Judgment :- 1. These are two revision petitions by the Jamath Mosque of Kochangadi and the orders sought to be vacated are the orders of the learned Temporary Additional District Judge of Anjikaimal in M.P. Nos. 561 and 576 of 1952. M.P. No. 561 of 1952 relates to A.S. 214 of 1123 and M.P. 576 of 1952 to A.S. No. 216 of 1123. The prayer in both the petitions was for a posting of the concerned appeals for hearing and disposal. 2. The appeals arise from O.S. 270 of 1121, a suit filed by the petitioner before the court of the District Munsiff, Cochin. The decretal portion of the judgment reads as follows: "In the result the plaintiff mosque is given a decree for surrender the plaint schedule properties with arrears of rent as claimed in the plaint as also future pattom as per the provisions of the Verumpattomdars Act. Plaintiffs are also entitled to Rs. 58-8-0 as damages for waste. Plaintiffs will deposit Rs. 935-0-8 due to the 3rd defendant, Rs. 22-3-0 due to the 4th defendant and Rs. 804-14-4 due to the 5th defendant as value of their respective improvements. Personal relief is allowed only for arrears in respect of the last 6 years. Set off is allowed between the plaintiffs and defendants 3 and 4. The plaintiff will get their costs from the 3rd and 4th defendants. Defendants will bear their costs. Plaintiffs and defendants 3 and 4 will share the commission batta in equal proportions. Plaintiffs will pay 3rd defendant the amounts covered by Ext. III series". 3. The appeals were stayed - it was a consent order - under the Proclamation of His Highness the Maharaja of Cochin, No. VI of 1124, when they came up for hearing on 24.3.1950. The petitioner's case is that the consent was given under a misapprehension, that the stay directed was wrong, and that it should be deemed to be inoperative on the ground that the Proclamation violates Arts. 14,19(1)(f) and 31 of the Constitution. It is not disputed that if the Proclamation is intra vires of the Constitution, the stay ordered is correct and should be maintained. The only contention is that even though the Proclamation was promulgated prior to the Constitution, its continued operation after 26-1-1950 is hit by the Articles above mentioned. 4. 14,19(1)(f) and 31 of the Constitution. It is not disputed that if the Proclamation is intra vires of the Constitution, the stay ordered is correct and should be maintained. The only contention is that even though the Proclamation was promulgated prior to the Constitution, its continued operation after 26-1-1950 is hit by the Articles above mentioned. 4. Proclamation opens with the words: "WHEREAS Government intend to consolidate and amend the law relating to landlord and tenant; and Whereas it is considered expedient, pending the enactment of such legislation, to stay the collection and recovery of pattom in excess of the pattom payable in money specified in the contract of tenancy in respect of garden lands the major produce of which is cocoanut and to prevent the eviction of certain classes of tenants and kudikidappukars from their holdings; We are hereby pleased to command as follows: and concludes with S. 6: "This Proclamation shall be in force until such time as Government may, by notification in the Cochin Government Gazette, determine". 5. It is admitted by the Mosque that the lease involved in A.S. Nos. 214 and 216 of 1123 is a verumpattom lease of lands situate outside the limits of the Municipalities constituted under the Cochin Municipal Act, XVIII of 1113, and hence coming within the ambit of the Cochin Verumpattomdars Act, VIII of 1118. 5. It is admitted by the Mosque that the lease involved in A.S. Nos. 214 and 216 of 1123 is a verumpattom lease of lands situate outside the limits of the Municipalities constituted under the Cochin Municipal Act, XVIII of 1113, and hence coming within the ambit of the Cochin Verumpattomdars Act, VIII of 1118. That Act conferred fixity of tenure on verumpattom tenants and the grounds on which eviction was possible after that Act came into force was only on any one of the six grounds enumerated in S.8 of that enactment viz., "(a) that he has willfully denied the title of the jenmi or of any intermediate landlord between himself and the jenmi before the date of such suit; (b) that he has intentionally and willfully committed such acts of waste as are calculated to impair materially and permanently the value or utility of the holding; (c) that he has not paid the pattom due in respect of the holding or the revenue, cess, tax or special charges, if any, specified in S. 6; (d) that he has not paid within six months from the commencement of this act the entire arrears of pattom, if any, due in respect of the holding at the commencement of this Act; (e) that he has intentionally or otherwise allowed a stranger to encroach on the holding or part thereof adversely to the interests of the jenmi or any intermediate landlord between himself and the jenmi; (f) that at the end of the agricultural year the jenmi or any intermediate landlord requires the holding or part thereof, except the Kudiyiruppu bona fide for building residential quarters for the use of himself or for any member of his family or tarwad or thavazhi who has a beneficial or proprietory interest therein". 6. The complaint of the Mosque is that Proclamation VI of 1124 makes still further inroads into the rights of the land-lord - inroads which violates the Constitution - by suspending eviction for an indefinite period and denying the cocoanut pattom directed under S. 5 of the Cochin Verumpattomdars Act, VIII of 1118. The provisions in that behalf are those embodied in Ss.1 and 2 of the Act: 1. The provisions in that behalf are those embodied in Ss.1 and 2 of the Act: 1. Notwithstanding anything contained in the Cochin Verumpattomdars Act, VIII of 1118, (hereinafter referred to as the Act) or in any other Law for the time being in force, no suit for eviction of a verumpattomdar to whom the provisions of the Act apply, shall be maintainable in Our courts on the ground that he has not paid the pattom due in respect of the holding or the revenue, cess, tax or special charges, if any, specified in S. 6 of the Act, and all suits, appeals, revisions, reviews and proceedings in execution of a decree shall be stayed by OUR courts in so far only as they relate to the relief for eviction of such verumpattomdar on the ground mentioned in Clause. (c) of sub-s. (1) of S. 8 of the Act. 2. (1) Notwithstanding anything contained in sub-s. (2) of S. 5 of the Act, where cocoanut is the major produce of a garden land and the pattom fixed therefor under the contract of tenancy is payable by the verumpattomdar in money, the collection or recovery by the lessor of the pattom in excess of the amount payable in money specified in the contract of tenancy is, in respect of the pattom payable from 1st Chingom 1124, hereby stayed. (2) Where a verumpattomdar to whom the provisions of sub-s. (1) apply has by himself or through his predecessor in interest been holding the garden land at the commencement of the Act as a Verumpattomdar and has renewed the contract of tenancy after the commencement of the Act and undertaken to pay pattom in kind or a higher pattom in money, the collection or recovery of the pattom payable by him in excess of the pattom in money fixed in the contract of tenancy subsisting immediately prior to the commencement of the Act is, in respect of the pattom payable from the day of Chingom 1124, hereby stayed". 7. Art.14 of the Constitution enshrines the right to equality and 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". 7. Art.14 of the Constitution enshrines the right to equality and 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 of the learned counsel for the petitioner that the effect of the Proclamation is to place land-lords like the Jamath Mosque altogether outside the pale of the law and thus deny them equality with those who are within the pale is an obvious exaggeration which it is impossible to accept. 8. His further contention is the more familiar one of discrimination as between the Cochin and Travancore portions of this State. The development of tenancy legislation in the two States has not been uniform and a complete identity of provisions in every respect cannot but be a matter for the future. The legislative history provides an ample justification for the differences that obtain and the desire of the legislature to ensure parity of treatment is clear from the Holdings (Stay of Execution Proceedings) Act, 1950, and the amendments thereto. This should be sufficient to dispose of the contention based on Art.14 of the Constitution. Differentiation by itself does not make a place of legislation obnoxious. It is the lack of a valid foundation for the differentiation that indicates the view and abrogates a statute. 9. The other arguments urged before us were based on Arts.19(1)(f) and 31 of the Constitution. It must now be taken as settled law that the two Articles do not overlap and that it is not possible to take shelter under both of them at the same time. The distinction between the two Articles in so far as it is material for the disposal of the petitions before us is clearly brought out in the following extract from the judgment in Bhanji Munji's case (1954 SCA 1286: "In the State of West Bengal v. Subodh Gopal Bose (1954 SCA 65) and Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co. Ltd. and others (1953 SCA 132) the majority of the judges were agreed that Arts.19(1)(f) and 31 deal with different subjects and cover different fields. There was some disagreement about the nature and scope of the difference but all were agreed that there was no overlapping. We need not examine those differences here because it is enough to say that Art.19(1)(f) read with Clause. There was some disagreement about the nature and scope of the difference but all were agreed that there was no overlapping. We need not examine those differences here because it is enough to say that Art.19(1)(f) read with Clause. (5) postulates the existence of property which can be enjoyed and over which right can be exercised because otherwise the reasonable restrictions contemplated by Clause. (5) could not be brought into play. If there is no property which can be acquired, held or disposed of, no restriction can be placed on the exercise of the right to acquire, hold and dispose of it, and as Clause. (5) contemplates the placing of reasonable restrictions on the exercise of those rights it must follow that the Article postulates the existence of property over which these rights can be exercised. In our opinion, this was decided in principle in Gopalan's case (1950 S.C.R. 88) where it was held that the freedoms relating to the person of a citizen guaranteed by Art.19 assume the existence of a free citizen and can no longer be enjoyed if a citizen is deprived of his liberty by the law of preventive or punitive detention. In the same way when there is a substantially total deprivation of property which is already held and enjoyed one must turn to Art.31 and to see how far that is justified". Substantial deprivation means "the sort of deprivation that substantially robes a man of those attributes of enjoyment which normally accompany rights to, or an interest in property" (1954 SCA 132) leaving behind if at all, just a "mere husk" or an "illusory phantom" of title. It is only in such cases that Art.31 is attracted and as there is no such deprivation in this case and substantial rights still remain with the land-lord we must hold that the question of the ultra vires character of Proclamation VI of 1124, vis-a-vis, Art.31 of the Constitution does not arise for consideration at all. 10. The only question, therefore, that remains to be considered is the result, if any, of the impact of Art.19(1)(f) on the provisions of the Proclamation on the 26th January 1950. The right "to acquire, hold and dispose of property" is the sixth of the seven fundamental rights guaranteed by Art.19 of the Constitution and it can be affected or abridged only in accordance with Clause. The right "to acquire, hold and dispose of property" is the sixth of the seven fundamental rights guaranteed by Art.19 of the Constitution and it can be affected or abridged only in accordance with Clause. (5) of the said Article which provides that nothing in Clause.(1)(d), (e) and (f) "shall affect the operation of any exiting law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe". 11. We are not concerned with a law "for the protection of the interests of any Scheduled Tribe". The expression "general public" is wide enough to include a section of the public and the removal of the grievances of a particular section is very often in the interests of the public generally. There was no contention before us that Proclamation VI of 1124 is not "in the interests of the general public". The only contention was that the restrictions imposed by Ss.1 and 2 of the said Proclamation cannot be considered as "reasonable restriction" on the right "acquire, hold and dispose of property" conferred by Art.19(1)(f) of the Constitution. 12. The principles that govern the test of reasonableness are well established and can be summed up in the words of Chintamanrao v. The State of Medhya Pradesh (1951 SCA 183), a case dealing with the fundamental right "to practise any profession, or to carry on any occupation, trade or business". "The phrase "reasonable restrictions" connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond that is required in the interests of the public. The word "Reasonable" implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art.19(1)(g) and the social control permitted by Clause. (6) of Art.19, it must be held to be wanting in that quality. " The observations apply with equal force to Cls. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art.19(1)(g) and the social control permitted by Clause. (6) of Art.19, it must be held to be wanting in that quality. " The observations apply with equal force to Cls. 2 to 6 of Art.19 of the Constitution and so does the following passage from the judgment in V.G. Row's case (1952 SCA 399): "It is important in the context to bear in mind that the test of reasonableness wherever prescribed should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict". 13. It has also to be borne in mind that what is involved in these matters is an objective standard, not a subjective one, and "external yard stick", the standard of the prudent man. In other words, what we have to ask ourselves is not whether we, as individuals feel satisfied that the restrictions are reasonable; but whether the normal, average, reasonable man would regard them as reasonable or not. (Khare's case 1950 SCA 358). 14. There can be no doubt that in final analysis the burden of proving the reasonableness of any restriction on fundamental rights will be on those who seek to support the restriction. It is this and this alone that has been laid down in the following passage from Sahhir Ahmad's case (1954 SCA 1218) on which great reliance was placed by the learned counsel for the petitioner. "When the enactment on the face of it is found to violate a fundamental right guaranteed under Art.19(1)(g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring in within the purview of the exception laid down in Clause. (6) of the Article. If the respondents do not place any materials before the court to establish that the legislation comes within the permissible limits of Clause. (6) of the Article. If the respondents do not place any materials before the court to establish that the legislation comes within the permissible limits of Clause. (6), it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conductive to the welfare to the community". There is a presumption that the laws passed by a legislature are valid and intra vires, that they come "sheathed in the armour wrought by prior legislative deliberation" and the sentence immediately preceding the passage extracted above is: "There is undoubtedly a presumption in favour of the constitutionality of a legislation". The presumption is available whether the provision impugned is the product of a democratic legislature or a Proclamation, as in this case, of His Highness the Maharaja of Cochin. There is no justification for the distinction based on the legislative source and none was attempted to be made by the learned counsel for the petitioner. 15. We cannot also forget that the question of "Reasonableness" alone is justiciable and that:- "It is for the legislature to scrutinise the need for restrictions and also, in the first instance, to decide upon their reasonableness. As to the need for restrictions, the judgment of the legislature must be regarded as final as has been so often laid down by Their Lordships of the Privy Council (AIR 1953 Nagpur 40)." 16. It can hardly be disputed in the light of the Preamble to the Proclamation that the restrictions embodied in Ss.1 and 2 are not only reasonable but necessary to safeguard the interests of the tenants until the proposals contemplated are passed into law. We understood the contention of the learned counsel for the petitioner to be based not so much on any intrinsic unreasonableness in the restrictions themselves as on the assumption that those restrictions acquire an unreasonable character for lack of a specified and definite period of operation. We understood the contention of the learned counsel for the petitioner to be based not so much on any intrinsic unreasonableness in the restrictions themselves as on the assumption that those restrictions acquire an unreasonable character for lack of a specified and definite period of operation. It is true that S. 6 only provides that the Proclamation "shall be in force until such time as Government may, by notification in the Cochin Government Gazette, determine": but the section has to be read along with the Preamble and when so read it becomes quite clear that the duration contemplated was no more than the period of time necessary for embodying the proposals in a legislative enactment and making it a part of the statute law of Cochin. That a considerable amount of delay has a matter of fact been occasioned consequent on the integration of the States of Travancore and Cochin and the new and extraordinary demands on administrative and legislative time that the constitutional changes in this country have involved cannot colour our judgment or affect the issue as to whether the restrictions were reasonable as on the crucial date, viz., the 26th January 1950. 17. In the view we have taken, that the restrictions are reasonable, it is unnecessary for us to consider the contention urged on behalf of the respondents that even if the restrictions are held to be unreasonable the petitioner is not entitled to succeed as the orders of the 24th March 1950 staying the trial of the two appeals were consent orders passed after the Constitution came into force. It follows that these petitions must fail and they are hereby dismissed with costs. Dismissed.