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1967 DIGILAW 51 (KER)

COCHIN DEVASWOM BOARD v. C. K. VIJAYAN

1967-02-15

M.S.MENON, P.GOVINDA NAIR

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Judgment :- 1. The Cochin Devaswom Board constituted under the Travancore-Cochin Hindu Religious Institutions Act, 1950, is the petitioner before us. The sole question for determination is whether the application of the Devaswom Verumpattam (Settlement) Proclamation, XXIII of 1118 M. E., has been affected by the provisions of the Kerala Land Reforms Act, 1963. 2. S.132 of the Kerala Land Reforms Act, 1963, deals with repeals and savings. Sub-section (1) of that section repeals the following enactments: (1) Proclamation XVI of 1122 (Cochin), dated the 14th February 1947. (2) Proclamation VI of 1124 (Cochin) dated 12th January 1949, (3) Kerala Ryotwari Tenants and Kudikidappukars Protection Act, 1962, and (4) Kerala Tenants and Kudikidapukars Protection Act, 1963. And sub-section (2): (1) Cochin Verumpattamdars Act, VIII of 1118, (2) Travancore-Cochin Prevention of Eviction of Kudikidappukars Act, 1955. (3) Malabar Tenancy Act, 1929, and (4) Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956. Sub-section (4) of that section repeals the Kerala Agrarian Relations Act, 1960. 3. It is clear from S.132 that the Devaswom Verumpattom (Settlement) Proclamation, XXIII of 1118 M. E., is not one of the enactments specifically repealed by the Kerala Land Reforms Act, 1963. As a matter of fact sub-section (1) of S.114 of that Act embodies an amendment of the said Proclamation. That sub-section reads as follows: "Ss. 7 and 9 of the Devaswom Verumpattamdars (Settlement) Proclamation, XXIII of 1118, shall be omitted." 4. This must naturally mean that sub-section (1) of S.114 visualises the continuance of the other sections of the Proclamation. The contention of counsel for the respondent, however, is not that there has been any repeal except of S.7 and 9 of the Devaswom Verumpattam (Settlement) Proclamation, XXIII of 1118 M. E. The contention is that there is a specific provision in the Kerala Land Reforms Act, 1963, by which the provisions of the Act will prevail over the provisions of the Proclamation whenever they are in conflict with each other. 5. The section invoked is S.127 of the Act. That Section reads as follows: "The provisions of this Act shall have effect notwithstanding anything in any other law or any custom or usage or in any contract, express or implied, inconsistent with the provisions of this Act." 6. A provision like this does not spell a repeal of the enactments in conflict with the Act in which it occurs. That Section reads as follows: "The provisions of this Act shall have effect notwithstanding anything in any other law or any custom or usage or in any contract, express or implied, inconsistent with the provisions of this Act." 6. A provision like this does not spell a repeal of the enactments in conflict with the Act in which it occurs. It assumes the continuance of those provisions and only provides for a rule of predominance of the provisions of the Act over any other provision occupying the same field and dealing with the same subject. 7. In other words what we have before us is not a general repealing clause to the effect that all inconsistent enactments shall stand repealed. Such clauses can create complications. Sutherland deals with them as follows: "An express general repealing clause to the effect that all inconsistent enactments are repealed, is in legal contemplation a nullity. Repeals must either be expressed or result by implication. A general repealing clause cannot be deemed an express repeal because it fails to identify or designate any act to be repealed. It cannot be determinative of an implied repeal for it does not declare any inconsistency but conversely, merely predicates a repeal upon the condition that a substantial conflict is found under application of the rules of implied repeals." (Statutory Construction, Third Edition, Volume 1, Page 466) 8. There is a rule of interpretation to the effect that a general later law should not be considered as repealing an earlier special law by mere implication. Counsel for the petitioner laid great emphasis on this rule during the course of his submissions. In the view we take that there is no implied repeal of the Devaswom Verumpattam (Settlement) Proclamation, XXIII of 1118 M. E. this rule does not arise for consideration. 9. We are inclined to hold, as already indicated, that there is a co-existence of the sections of the Proclamation except S.7 and 9 and of the sections of the Act subject to the necessary rule of predominance embodied in S.127 of the Act. According to counsel for the respondent such a continuance of both the enactments is also essential as there may be Devaswom lands to which the Kerala Land Re. forms Act, 1963, does not in terms apply. 10. According to counsel for the respondent such a continuance of both the enactments is also essential as there may be Devaswom lands to which the Kerala Land Re. forms Act, 1963, does not in terms apply. 10. That the Kerala Land Reforms Act, 1963, relates to Devaswom lands as well can easily be gathered from many of its provisions; for example, S.3 of the Act which deals with the exemptions that can be granted by the Government from the provisions of Chapter II of the Act. Sub-section (2) of that section reads as follows: "The Government may, if they are satisfied that it is necessary so to do in public interest, by notification in the Gazette, exempt any lease or leases of lands other than nilams, or of such lands and buildings, situate within the limits of a municipal corporation or municipality which was in existence at the commencement of this Act and belonging to, or vested in. the Travancore Devaswom Board or the Cochin Devaswom Board, from the operation of all or any of the provisions of this Chapter." 11. The provisions for the fixation of fair rent occur in Chapter II of the Act. And in the absence of an exemption as contemplated by sub-section (2) of S.3 we must hold that the provisions of Chapter II apply to the lands vested in the Devaswom Boards mentioned in that sub-section. 12. Counsel for the petitioner did not confine himself to the Devaswom Verumpattam (Settlement) Proclamation, XXIII of 1118 M. E. He also drew our attention to an earlier Proclamation, a Proclamation dated the 29th Makaram 1085 M. E., and R.3 of the rules framed under S.9 of that Proclamation. What we have said about the Devaswom Verumpattam (Settlement) Proclamation, XXIII of 1118 M. E., applies with equal force to the Proclamation of 1085 M. E. and the rule above-mentioned. 13. What we have said about the Devaswom Verumpattam (Settlement) Proclamation, XXIII of 1118 M. E., applies with equal force to the Proclamation of 1085 M. E. and the rule above-mentioned. 13. In the light of what is stated above we must hold: (1) that the provisions for the fixation of fair rent in the Kerala Land Reforms Act, 1963, are applicable to the lands vested in the Cochin Devaswom Board; (2) that nothing in the Devaswom Verumpattam (Settlement) Proclamation, XXIII of 1118 M. E., or the Proclamation dated the 29th Makaram 1085 M. E., or R.3 of the rules framed under S.9 of that Proclamation precludes such an application in view of the rule of predominance embodied in S.127 of the Kerala Land Reforms Act, 1963; (3) that the technical rules of interpretation governing repeals by implication have no application to the rule of predominance expressly provided by S.127 of the Act; and (4) that this petition should fail and have to be dismissed. 14. The petition is hereby dismissed. In the circumstances of the case, however, there will be no order as to costs. Dismissed.