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Kadalaya Manakkal Moorthi Narayanan Nambudiripad Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 1057 of 1971
Judge
Reported inAIR1976Ker51
ActsTriuppuvaram Payment (Abolition) Act, 1969 - Sections 2 and 25(2); Constitution of India - Articles 19(1), 19(5) and 31A
AppellantKadalaya Manakkal Moorthi Narayanan Nambudiripad
RespondentState of Kerala and ors.
Appellant Advocate T.R. Govinda Warriyar and; K. Ramkumar, Advs.
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Cases ReferredSaghir Ahmad v. The State
Excerpt:
.....under the impugned act, assuming the charge created by section 42 is an interest in land, is not a right in land :besides the liability be-ing also a personal liability it would clearly amount to a debt. --if it is necessary to rehabilitate indebted tenants by relieving them of their liability on account of arrears of rent, that must, like any other measure for the relief of indebtedness, be justified in so far as it affects the property rights of the landlord as a reasonable restriction in the interests of the general public within the meaning of clause (5) of article 19. no material has been placed before us to show that is so .8. the state has not placed any materials before me to justify the restriction, or to establish that section 25 (2) is a reasonable restriction on the..........to the thiruppuholder directly by the government consequent on- (i) the omission to enter in the land revenue settlement register of 1086 m. e. the assignment in favour of a thiruppuholder of the whole or a portion of the land revenue payable by a landholder to the government; or (ii) the land revenue fixed as payable by a landholder at the land revenue settlement of 1086 m. e, being less than the thiruppuvaram assigned before that settlement in favour of a thiruppuholder out of the land revenue payable by that landholder. explanation.-- for the purpose of this clause, 'revenue accounts' means the approved jamabandi accounts and includes the settlement register.'from the definition above read it is clear that the thiruppuholder's right is to the whole or a specific portion of the.....
Judgment:
ORDER

George Vadakkel, J.

1. Petitioner is the karnavan of an Illom, and is the hereditary trustee of the several devaswoms mentioned in paragraph 2 of the petition. Respondents Nos. 3 to 24 filed petitions invoking the provisions of Section 25 (2), of the Thiruppuvaram Payment (Abolition)' Act, 1969 (for short, the Act). Along with these petitions they have also deposited amounts equal to arrears of thiruppuvaram due from them in respect of one year, In this manner, these respondents, seek to get full discharge of their liability for arrears of thiruppuvaram which have accrued due prior to 1-1-1970 on which date the Act came into force as per notification S. R. O. No. 12/1970 dated 1-1-1970 issued under Section 1 (3) of the Act, and published in the Kerala Gazette Extraordinary dated 1-1-1970. The discharge sought for is as against the petitioner, in some instances in his capacity as Illom karnavan, and in others on his capacity as hereditary trustee of one or the other of the devaswoms. Petitioner challenges the constitutional validity of Section 25 (2) of the Act, and prays for striking down that provision as ultra vires and void He also prays for quashing the proceedings in the several petitions filed by respondent No. 3 onwards.

2. By order on C. M. P. No. 3710 of 1971 the petitioner's application to implead respondents Nos. 3 to 24 in a representative capacity has been allowed. However, none has come forward to oppose this petition. Even respondents Nos. 3 to 24 have not entered appearance. The 1st respondent State has entered appearance through the learned Government counsel but has not filed any counter-affidavit. The 2nd respondent is the learned Munsiff, Kottarakara, before whom the several applications under Section 25 (2) of the Act are pending.

3. It is the contention of the petitioner that Section 25 (2) of the Act is viola-tive of Article 19(1)(f) and Article 31 of the Constitution and that it is not protected by Article 19(5) nor by Article 31A. This is the only point that arises for consideration in this case.

4. Section 25 of the Act reads:

'25. Arrears of Thimppuvaram-

(1) Notwithstanding anything to the contrary contained in this Act, all arrears of Thimppuvaram which accrued due before the appointed day and remain unpaid to the Thiruppuholders on that day shall be recoverable by or op behalf of the Thiruppuholders in the same manner as they were recoverable immediately before the appointed day.

(2) Notwithstanding anything contained in Sub-section (1) or in any judgment, decree or order of any court all such arrears as are referred to in that sub-section shall be deemed to be fully discharged by payment to the Thiruppuholder within one year from the appointed day of an amount equal to the arrears for one year immediately preceding the appointed day or the actual amount in arrears, whichever is less.' Thiruppuvaram is defined in Section 2 (f) of the Act as follows:

'(f) 'Thiruppuvaram' means an assignment of the whole or a specific portion of the revenue payable to the Government by the holder of a specified land in favour of a person called the Thiruppuholder in lieu of any payment which the Government were under an obligation to make to such person and entered as Thiruppuvaram in the revenue accounts and includes sums payable to the Thiruppuholder directly by the Government consequent on-

(i) the omission to enter in the Land Revenue Settlement Register of 1086 M. E. the assignment in favour of a Thiruppuholder of the whole or a portion of the land revenue payable by a landholder to the Government; or

(ii) the land revenue fixed as payable by a landholder at the Land Revenue Settlement of 1086 M. E, being less than the Thiruppuvaram assigned before that settlement in favour of a Thiruppuholder out of the land revenue payable by that landholder.

Explanation.-- For the purpose of this clause, 'revenue accounts' means the approved jamabandi accounts and includes the settlement register.'

From the definition above read it is clear that the Thiruppuholder's right is to the whole or a specific portion of the revenue payable by the landholder to the Government, and that this right is recognised by State in lieu of payments due by the Government to the Thiruppuholder. In the two instances referred to in Clauses (i) and (ii) of Section 2 (f) the right of the Thiruppuholder is in respect of sums payable to him directly by the Government. In Krishnaru v. Sanka-ran ((1929) 19 Trav LJ 345) the nature of the right was stated to be:

'The Government, for reasons which it is immaterial to consider and which may vary in different cases, grant a part of the tax due on a property to a third party,'

The definition in the Act has given statutory recognition to the above statement. From the definition it is clear that the right of Thiruppuholder is founded on an 'obliga-tion' on the part of the Government, to 'make payment', and that this obligation is discharged by conferment on the Thiruppuholder of the right to recover whole or portion of revenue or tax from the landholder. The right is a right for money, and consequently is property coming within the purview of Article 19(1)(f).

5. In Narayanan Nair v. State of Kerala (1970 Ker LT 659 at p. 696) = (AIR 1971 Ker 98 (FB) at p. 120) Raman Nayar C. J. delivering the majority judgment said with reference to an analogous provision, Section 73 of the Kerala Land Reforms Act, 1964:--

'But rent in arrear only constitutes a debt, and excepting perhaps to the extent to which it is a charge on the land, is not an interest therein. (See in this connection State of Bihar v. Kameshwar Singh AIR 1952 SC 252). The effect of Section 73 is not merely to deprive the landlord of the charge conferred on him by Section 42 but to wipe off the debt itself and this debt not being an interest in the land, it seems to us clear that the section cannot have the protection of Article 31A. That protection is afforded only in so far as the acquisition, extinguishment or modification of rights in an estate are concerned.' (underlining by me).

The Supreme Court on appeal from the above decision, in Kunjukutty Sahib v. State of Kerala (1972 Ker LT 353 at p. 358) = (AIR 1972 SC 2097 at p. 2103) upheld this Court's decision on this point in the following terms:--

'The liability to pay arrears of rent under the impugned Act, assuming the charge created by Section 42 is an interest in land, is not a right in land : besides the liability be-ing also a personal liability it would clearly amount to a debt. Acquisition or extinguishment of such a personal liability for payment of money cannot be covered by Article 31A. That money cannot be acquired is clear, as already pointed out, from the majority view of this Court's decision in Kameshwar Singh's case.' (underlining by me),

6. In the light of the above principles, I am of the view that Section 25 (2) of the Act is not saved by Article 31A of the Constitution.

7. The next point for consideration is whether the provision, section 25 (2), imposes only a reasonable restriction on the right guaranteed to Thiruppuholders by Article 19(1)(f) of the Constitution, and whether the provision is in the interests of the general public or for the protection of the interests of any Scheduled Tribe, In other words, whether the sub-section is saved by Article 19(5). In relation to the fundamental right guaranteed by Article 19(1)(f) and Clause (6) of Article 19 the Supreme Court in Saghir Ahmad v. The State (AIR 1954 SC 728) said:--

'There is undoubtedly a presumption in favour of the constitutionality of a legislation. But when the enactment on the face of it is found to violate a fundamental right guaranteed under Article 19(1)(g) of the Constitution, it must be held to be invalid unless those who support the legislation can bring it 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), it is surely not for the appellants to prove negatively that the legislation was not reasonable and was not conducive to the welfare of the community'. (Paragraph 23 at p. 738). After a discussion of the above case and other cases, the Supreme Court reiterated the same principle in Khyerbari Tea Co, v. State of Assam (AIR 1964 SC 925) where Gajendra-gadkar J. delivering the leading judgment said:-- 'In our opinion the said decision is a clear authority for the proposition that once the invasion of the fundamental right under Article 19(1) is proved, the State must justify its case under Clause (6) which is in the nature of an exception to the main provisions contained in Article 19(1).' (paragraph 35 at p. 939).

Sarkar J. in his concurring judgment, suggested that the above said approach is not the correct approach, that there is really no exception, that the 'real fundamental right is what is left after the restriction has been imposed', and that the citizen alleging violation of his fundamental right must establish that the restriction is unreasonable. However, the matter was pot pursued further. The learned judge said:--

'It is not necessary to pursue the matter further or to pronounce finally on it now because for one thing, the observation in Saghir Ahmad's case,..... is there and foranother, nothing turns on onus in this case, I have only mentioned it as it is a matter which, to my mind, requires consideration when the question properly arises.'

This Court in the Full Bench decision in Narayanan Nair's case was of the view that the onus lay on the State to justify the provision as a reasonable restriction. This is what this Court said:--

'If it is necessary to rehabilitate indebted tenants by relieving them of their liability on account of arrears of rent, that must, like any other measure for the relief of indebtedness, be justified in so far as it affects the property rights of the landlord as a reasonable restriction in the interests of the general public within the meaning of Clause (5) of Article 19.

No material has been placed before us to show that is so .....'

8. The State has not placed any materials before me to justify the restriction, or to establish that section 25 (2) is a reasonable restriction on the fundamental right to acquire, hold and dispose of property. Asearlier stated, no counter-affidavit has been filed by the State. No arguments were also advanced by the learned Government counsel to sustain Section 25 (2) as coming within Article 19(5) of the Constitution, though, no doubt, he feebly suggested that the Statute as a whole is a measure in agrarian reforms, and that Section 25 (2) aims at giving relief to indebted agriculturists. I am of the view that the State has failed to discharge their onus to establish that the provision is saved by Article 19(5) of the Constitution.

9. In view of what is stated above I must hold that Section 25 (2) of the Act is unconstitutional, and should strike down the same on that ground. I do so. The petitioner is also entitled to the consequential relief prayed for, viz., a declaration that petitions filed by respondents Nos. 3 to 24 invoking Section 25 (2) of the Act are not maintainable. The 2nd respondent, the learned Munsiff, will dispose or these applications in the light of what is stated above, after examining and satisfying himself as to the nature and contents of these applications. The original petition is disposed of as indicated above, I make no order as to costs.


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