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1959 DIGILAW 114 (KER)

Lekshmikutty Nethiar v. Ammu

1959-03-26

KUMARA PILLAI, M.S.MENON

body1959
Judgment :- 1. These petitions question the validity of the explanation to S.4 (a) of the Malabar Tenancy Act, 1929. That explanation was added by S.2 of the Malabar Tenancy (Amendment) Act, 1956. The Act received the assent of the President on the 27th October 1956. 2. The Malabar Tenancy Act, 1929, had been amended earlier, by Act XXXIII of 1951 and Act VII of 1954. The preamble to the Malabar Tenancy (Amendment) Act, 1956, states the reason for the enactment as follows: "Whereas urgent amendment to clarify the intendment of the Legislature in regard to some of the provisions of Act VII of 1954 and Act XXXIII of 1951 have become necessary in view of some decisions of courts and whereas the protection sought to be conferred by Act VII of 1954 would be lost to the tenantry if immediate amendments are not carried out." 3. S.4 (a), after the amendment of 1956, is in the following terms: "'Normal produce,' in respect of any wet land, means the produce, which would be raised, if the rainfall and the seasons were of a normal character, that is to say, were neither unduly favourable nor unduly unfavourable, on the class of land to which it belongs and in the same situation and possessing the same advantages, as determined by the Rent Court in accordance with such rules as may be prescribed: Provided that the normal produce of any land irrigated with water from a Govt. irrigation work for the first time after the commencement of the tenancy in respect of that land, shall be determined as if the land had not been so irrigated. Explanation:- In ascertaining the normal produce, the yield of the second crop shall be deemed to be half of that of the principal crop which shall be deemed to be the first crop." 4. One of the provisions embodied in R.3(A) of the Malabar Tenancy (Determination of Fair Rent) Rules, 1954, was: "The normal out-turn of second crop shall be fixed at 50 per cent of the out-turn of the first crop in respect of land registered as (a) double-crop wet lands and (b) single-crop wet lands growing two paddy crops regularly." This provision came up for consideration before the Madras High Court in Writ Petition No. 556 of 1955 and the other Writ Petitions heard along with it. The Madras High Court said: So far as the enactment itself is concerned, the gross produce is to be ascertained on the basis of the out-turn of lands with similar advantages and in similar situation eliminating abnormal years. The rule-making power cannot therefore transgress this provision or direct the official to proceed on any basis other than that which is enacted. Viewed in this light it must be clear that the adoption of a fixed proportion of 50% for the seconds crop is not in accordance with the section." and: "The adoption of a mechanical rule in fixing the second crop as a particular proportion of the first is not warranted by the Act and might lead to hardship, it might be to the landlord or it might even be to the tenant. The learned Advocate-General sought to sustain the validity of this rule by suggesting that it was merely a prima facie guidance to the officer and not as rule to be adopted in every case. We are however satisfied, whatever be the intention of the framers of the rule, that the language in which it is couched is consistent only with its being a rule which the officer is bound to adopt. If this were the interpretation which we are inclined to place upon this rule, there cannot be any dispute that the third sentence of R.3A is beyond the rule-making power and therefore invalid The determination of fair rent by the Rent Courts charged with this duty under the enactment must therefore be arrived at without reference to the rule that second crop shall be treated as 50% of the first." The third sentence referred to is the provision we have extracted earlier in this paragraph. 5. The decision was rendered on the 3rd November 1955 and it was subsequently that the Malabar Tenancy (Amendment) Act, 1956, was passed and the explanation added to S.4 of the Malabar Tenancy Act, 1929. The question with which we are now concerned is hence not whether a rule is ultra vires of the Act under which it was framed but whether a section of the Act 19 ultra vires of the Constitution. We take the view that Art.31 A of the Constitution provides an effective answer to the petitioners' contention that the Explanation ultra vires of the Constitution. 6. We take the view that Art.31 A of the Constitution provides an effective answer to the petitioners' contention that the Explanation ultra vires of the Constitution. 6. Art.31A was inserted by S.4 of the Constitution (First Amendment) Act, 1951, with retrospective effect. It was amended by S.3 of the Constitution (Fourth Amendment) Act, 1955, also with retrospective effect. The relevant portion of the Article as it stood at the time of the enactment of the Malabar Tenancy (Amendment) Act, 1956 reads as follows: "(1) Notwithstanding anything contained in Art.13, no law providing for - (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Art.14, Art.19 or Art.31: Provided that where such law is a law made by the Legislature of a State, the provisions of this Article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. (2) In this article - [a] the expression'estate' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant and in the States of Madras and Travancore-Cochin, any janmam right." [b] the expression'rights', in relation to an estate shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue." The word "Kerala" was substituted for the word "Travancore-Cochin" by the Constitution (Seventh Amendment) Act, 1956, with effect from the 1st November 1956. 7. In the Writ Petitions mentioned in Para.4 above it was also contended that the expression "estate" used in Art.31A will not comprehend the relationship between a jenmi and his verumpattamdar. The Madras High Court said: "There is no difficulty in understanding the expression'extinguishment or modification of any such rights' in an'estate' as the expression is used in sub-clause [1] [a]. The difficulty arises however by reason of the phraseology used to define "Estate" in sub-clause [2] [a]. The Constitution [First Amendment] Act defined the expression thus: '2[a]. The Madras High Court said: "There is no difficulty in understanding the expression'extinguishment or modification of any such rights' in an'estate' as the expression is used in sub-clause [1] [a]. The difficulty arises however by reason of the phraseology used to define "Estate" in sub-clause [2] [a]. The Constitution [First Amendment] Act defined the expression thus: '2[a]. The expression 'estate' shall in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant.' This definition comprised two classes: the first might be termed the primary class namely'an estate' or its local equivalent in the existing law relating to land tenures in any local area. The second comprised jagirs, inam or muafi or other similar grants. The Fourth Amendment to the Constitution added the following at the end of this clause 'and in the States of Madras and Travancore-Cochin, any Janmam right.' The difficulty is in fixing the addition into either of the two previously existing classes There is no land tenure known in Madras or Travancore-Cochin as an estate held in janmam right nor is it correct to say that janmam right is in the nature of a grant, and that is how the difficulty in the construction of the words introduced by the Fourth Amendment arises One thing is clear, that some meaning must be attributed to these words, and in the context in which it occurs the only significance it can have is to designate the land in regard to which any person has a janmam right in the State of Madras or Travancore Cochin. The emphasis therefore is not so much upon the tenure as on the land in respect of which a person might be said to be a jenmi. So understood, and that is the only way in which it could be understood, it is clear that the relationship between the jenmi and the verumpattomdar is comprehended within the definition of an estate within Art.31A(2)(a). So understood, and that is the only way in which it could be understood, it is clear that the relationship between the jenmi and the verumpattomdar is comprehended within the definition of an estate within Art.31A(2)(a). Despite the reference to 'tenure' and 'grant' what is common to all the three classes is land; the definition of 'estate' thus covers land held as an estate, land held under a jagir, etc , grant, and land held on janmam right." We are in agreement with this view. 8. Mr. Sundara Iyer, who appeared for the petitioners in these petitions, had a further contention. According to him even assuming that the decision of the Madras High Court is unassailable that decision will not affect O. P. Nos. 664, 695, 706, 707, 741 and 834 of 1958 and O. P. No. 134 of 1959 where the petitioners are kanamdars, O.P. No. 691 of 1958 where the petitioner is a karipanayamdar and O.P. Nos. 750 of 1958 and O. P. No. 140 of 1958 where the petitioners are verumpattomdars. We cannot agree. The fact that the petitioners in the said petitions are not jenmis but intermediaries between the jenmis and the cultivating tenants cannot possibly affect the question. The emphasis, as pointed out by the Madras High Court, is on the land concerned, and the holdings involved in these petitions also should be considered as coming within the expression "estate" in Art.31 A of the Constitution. (See also the definition of "rights" in Art.31A (2) (b).) 9. In the light of what is stated above the validity of the Explanation to S.4 of the Malabar Tenancy Act, 1929, introduced by the Malabar Tenancy (Amendment) Act, 1956, has to be upheld and these petitions dismissed. Judgment accordingly, though in the circumstances of the case, without any order as to costs.