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Kochunni Kartha and ors. Vs. State and ors. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 339 of 1956, 106 of 1057, 206 of 1958, 129, 250, 265, 269, 284, 285 and 314 of 1957
Reported inAIR1961Ker210
ActsConstitution of India - Articles 14, 19(1), 19(5), 31 and 31(2); Kanam Tenancy Act, 1955
AppellantKochunni Kartha and ors.
RespondentState and ors.
Appellant Advocate V.K.K. Menon and; C.S. Padmanabha Iyer, Advs. in O.P. 339/56,;
Respondent Advocate K.V. Surianarayana Iyer, Adv. General and; C.M. Kuruvilla, Government Pleader,;
Cases ReferredDuncan v. Scottish North Eastern Rly.
constitution - interpretation - constitution of india and kanam tenancy act, 1955 - inconsistency between two acts - special enactment repugnant to general act passed subsequently - both provision cannot remain in force - doctrine of necessary implication applies - special enactment becomes invalid by virtue of provisions of general act being later act. - - 339/56, 106/57 and 206/58, and claim part of the act to be violative of their fundamental rights under articles 14, 19(1)(f) and 31. the remaining seven petitions are by the holders of kanam tenures, who dispute the cochin devaswom board's right to auction their properties due to their failure to pay rent in kind, whose money value had yet to be determined in exercise of the powers under the act. but further claim the act not.....ansari, c.j. 1. the constitutionality of the kanam tenancy act, no. xxiv of 1955, hereinafter referred to as the act, has been challenged in these ten writ petitions. three landlords or 'jenmies' are the petitioners in o. p. nos. 339/56, 106/57 and 206/58, and claim part of the act to be violative of their fundamental rights under articles 14, 19(1)(f) and 31. the remaining seven petitions are by the holders of kanam tenures, who dispute the cochin devaswom board's right to auction their properties due to their failure to pay rent in kind, whose money value had yet to be determined in exercise of the powers under the act.the devaswom board, in the replies, not only adopt the plea of the act not being constitutional due to the landlords' fundamental rights having been infringed; but.....

Ansari, C.J.

1. The constitutionality of the Kanam Tenancy Act, No. XXIV of 1955, hereinafter referred to as the Act, has been challenged in these ten writ petitions. Three landlords or 'jenmies' are the petitioners in O. P. Nos. 339/56, 106/57 and 206/58, and claim part of the Act to be violative of their fundamental rights under Articles 14, 19(1)(f) and 31. The remaining seven petitions are by the holders of kanam tenures, who dispute the Cochin Devaswom Board's right to auction their properties due to their failure to pay rent in kind, whose money value had yet to be determined in exercise of the powers under the Act.

The Devaswom Board, in the replies, not only adopt the plea of the Act not being constitutional due to the landlords' fundamental rights having been infringed; but further claim the Act not having repealed the earlier enactments, under which holders of kanam tenures in the Devaswom lands, were subject to special powers, that authorised auctioning of the tenants' properties on the failure to pay the rent. Therefore, the two questions arising for decisions in the ten petitions, are how far the Act is constitutional and, assuming it to be such, whether the Act governs all kanam tenures Cochin area including those of Devaswom lands.

2. It is common ground that the customary laws pertaining to land tenures, including kanam,throughout the Malabar area, were subject to small local variations. Yet, the legislations dealing with such tenures in the several parts of what now is the Kerala State, have at no time been either identical or equally progressive. The jenmi, according to the Cochin State Manual (Published in 1911), acknowledged by kanam lease liability to pay a lump sum to the tenant on the redemption of lease, and the liability was, in most cases, created as reward to the tenants' military or other services; but in more recent times, by the jenmi borrowing money from the tenant to meet any extraordinary expenditure.

According to the aforesaid Manual, the net produce in such lease would, after deducting the cost of seed and cultivation, be shared by the landlord and the tenant; and, from the share of the former, the latter would be entitled to deduct interest at 6 per cent on the kanom amount, the surplus payable to the jenmi, after making the deductions, being known as michavaram. The kanomdar would be entitled to the undisputed enjoyment of the land for 12 years; and, at the end of the period, the jenmi may terminate the lease by paying the kanom amount and the value of improvements effected by the tenant, or may renew on the kanamdar paying the jenmi a premium or renewal fee.

The rate of the renewal fee at one time was 10 per cent of the kanom amount with an additional 3 per cent on account of certain incidental payments; but in the Cochin area, by 1911, had risen to 25 to 34 percent. The Manual also says that though the lease would be redeemable at the end of its period at the jenmi's pleasure, yet, according to custom, the Kanam tenants would never be evicted except for fraudulent conduct derogating from the jenmi's title, for wilful and extensive waste of the land in possession, for persistent default in payment of the rent and other dues, and for refusal to accept renewal of lease by paying the customary fees.

3. So far as the Cochin area is concerned, the first statutory definition of the kanam tenure and the attendant control, are to be found in the Cochin Tenancy Act, No. 11 of 1090. That was passed on October 24, 1914 and 'kanam tenant' was defined by its Section 2(e) to mean a tenant, who held land on payment of consideration in money or in kind to the landlord for his holding and on a demise subject to renewal after a fixed period on payment of a renewal fee.

'Michavarom' under Section 2 (g) meant whatever be agreed to be paid to the landlord by the kanam tenant after deducting the interest due on the Kanam; 'Renewal fee' under Section 2(i) fee payable by such a tenant to his landlord on renewal of his holding; and 'kanam' under Section 2(j), the consideration in money, or in kind to the landlord by the kanam tenant for his holding. Chapter III of the enactment dealt with the renewal and ejectment of such tenants, but was made applicable only to those, who had by themselves, or through their predecessors, held uninterrupted possession for a period not less than 30 years prior to the enactments coming into operation.

Such tenants might surrender holdings at the end of 12 years, without landlord incurringthe liability to return the kanam amount; and, where no surrender had been made, Section 22 provided for the renwal. Section 23 authorised eviction on several grounds, one of which was refusal to pay enhanced michavararn allowed under Section 25; another, neglect or refusal to pay renewal fee within a year of the lease having expired; and yet another, refusal to pay additional kanam.

The next chapter dealt with the michavararn and customary dues; Section 25 permitting the landlord, at the time of the periodical renewal, to enhance the michavararn subject to the conditions of Section 30; and Section 26 providing for renwal fee to be levied at the uniform rate of 271/2 per cent of the kanam and 15 per cent of the puramkadam, inclusive of the customary dues. The tenant was, under Section 28, liable to pay the michavarom, renewal fees, and customary dues; the landlord could claim enhanced michavaram under Section 30; and the tenant could ask for reduction under Section 31.

This legal position continued till the Cochin Tenancy Act, No. XV of 1113, was passed on January 29, 1938. Section 1 (3) of the subsequent enactment repealed the earlier and Section 2(d) defined 'kanam' to be demise with, initial money or consideration in kind by tenant, michavaram payable to the landlord, possession for 12 years, and liability to pay renewal fee. Section 23 applied the provisions only to those, who had held kanam tenures created before the date mentioned in the section, Section 24 provided for surrender, Section 25 for eviction and Section 26 for renewal, Section 27 stated the dues payable on renewal and Section 28 provided that in addition the tenant must pay a renewal fee of 2714 per cent of the kanam amount and 15 per cent of the puramkadam, if any, Leaving the minor enactments, that had added to the definition of kanom and provided for verumpattomdars' fixity of tenure, we come to the Act challenged in these petitions.

4. The Act extends to tbe whole of Cochin area and also to the enclaves, which formed part of the Malabar District and which have been absorbed in the Travancore-Cochin State under the Provinces and States (Absorption of Enclaves) Order 1950. Section 2(4) defines kanam to mean demise with an initial lump sum consideration in money or in kind or both, given or deemed to be given by the kanam tenant to the jenmi, with payment of michavarom by the kanam tenant to the jenmi, with the right of the tenant to occupy the property demised for 12 years, and with the liability to pay renewal fee on renewal of the demise.

Section 2 (6) defines michavaram to mean the balance of money or produce, or both, payable periodically under the contract of tenancy to the jenmi,' after deducting from the pattom the interest due on the kanam amount and puramkadam, if any, Section 2(11) says that renewal fee means fee or fees payable by a kanom tenant to his jenmi under the contract of tenancy for the renewal of the legal relationship, under which the kanam tenant has been holding the land.

Section 2 (13) defines jenmikaram to mean the amount payable in respect of the holding or land under the provisions of the Act by the kanamtenant to the jenmi every year in lieu of all claims of the jenmi in respect of the holding, and shall be the sum-total of the michavaram and the fractional fee. Fractonal fee has been defined by Section 2(1) as follows:

'Fractional fee means the fee fixed as claimable in substitution of the renewal fees in annual instalments at the rate of seven per cent of the aggregate value or amount of one year's michaveram or of the renewal fees payable under the Cochin Tenancy Act, XV of 1113, whichever is less, or in annual instalments proportionately lower in percentage when renewal on the expiry of any longer period is provided for by the kanam.'

5. We would now give the summary of the other provisions of the Act. Section 3 makes a kanam tenant owner of the land, subject only to the payment of jenmikaram. By Section 5, jenmikaram has been made the first charge on land, and by Section 11 no kanam can be created after the Act came into force. Section 16 says that subject to the provisions of the Act, every jenmi shall be entitled to receive, and every kanam tenant shall be bound to pay, in respect of lands in the latter's holding, the jenmikaram due thereon, and notwithstanding any contract or usage to the contrary, the jenmi shall not be entitled to receive from the kanam tenant and the kanam tenant shall not be bound to pay to the jenmi anything else in respect of the land.

Section 17 says that where the jenmikaram or any portion of it consists of paddy or other commodity, the kanam tenant shall be entitled to pay in money the value of such paddy and other commodity at the commutation rate fixed under the provisions of Section 49, and Section 49 says that the Government may, from time to time, fix the rates for the commutation into money or paddy or other commodities for the purposes of this Act.

The other provisions of the Act arc that the jenmi, under Section 19, may make an application to the Tahsildar of the Taluk, in which the holding is situated, to recover the arrears of any jenmikaram in respect of that holding provided the arrears are not more than one year old on the date of the application. By Section 26, claims of jenmi for recovery of arrears of jenmikaram, when the amount or value of such claim does not exceed Rs. 100/-, can be summarily disposed by courts; and Section 34 made it lawful for the Government to assume the collection of jenmikaram for payment over to the jenmi concerned.

These are some of the provisions of the Act, which had repealed Chapters III, IV, V and VI of the Cochin Tenancy Act, No. XV of 1113; Proclamation No. 10 of 1119 (Cochin) dated January 29, 1944 and Sections 3 and 6 of Proclamation No. VI of 1124 (Cochin) dated January 3, 1949, and had come into force from March 1, 1956:

6. The landlords-writ petitioners state, that the social, economic and agrarian conditions governing jenmies and kanam tenants, are identical throughout the States of Travancore and Cochin; and, apart from the enactments governing the different parts of the Kerala State, kanam, according to the customary law, means demise of peculiar characteristics. They further state that in the Travancore part of the State, the Jenmi and Kudiyan Regulation, No. V of 1071, as amended by Regulation No, XII of 1108, defines renewal fees as the fractional fee; which has been defined to be the fee fixed as claimable in substitution of the original fee in annual instalments at the rate of seven per cent of the aggregate value of the amount of the renewal fee due on the expiry of 12 years, or in annual instalments proportionately lower in percentage when renewal on the expiry of any longer period he provided for by the patta.

The petitioners admit that in the aforesaid part and because of the enactment, only the fractional fee, instead of the renewal fee, is realisable; whereas in the Cochin part the full renewal fee allowed by the Acts, passed earlier, was realisable at the end of each cycle of years. The petitioners further admit that apart from the annual instalment being so realisable, another difference between the two areas was that, whereas in the Travancore area the enactments mentioned above provided for collection and payment to the jenmi of the jenmikaram by the Government, the Cochin area had no such procedural facility.

They complain that, notwithstanding expression of intention to equalise the laws relating to land tenures of the two areas and enactments doing so, the fractional fee under the Act, whose provisions are otherwise similar to the Travancore enactments, is more favourable to the tenant; for, in the definition of fractional fee under Section 2 (1) of the Act, the words 'one year's michavaram' and 'whichever is less' occur, and the result is discrimination in favour of the tenants, as the renewal fee normally payable is much higher than one year's michavaram.

They further complain that another consequential differentiation made in the Act is in Section 16(8), where, for purposes of the section, the renewal fee is deemed to be one year's michavaram, or the renewal fee payable, whichever be less. They aver that the aforesaid provisions place the jenmies in the Cochin area in a less advantageous position to those of the jenmies in the Travancore part of the State, are, without rational classification, discriminatory, and violative of Article 14 and should he deleted. They further claim that these clauses infringe the petitioners' fundamental right under Article 19(1)(f) of the Constitution.

7. Before dealing with the constitutional issue, it would be of advantage to narrate the stages, that preceded the Travancore Regulation. Apart from enactments, the Kudiyan had the rights of enjoying the lands for 12 years, to alienate, to make improvements, to surrender and to cut trees for domestic uses. His duties were to pay michavaram, renewal fees, customary dues, to report to the jenmi any invasion of his rights and to share improvements when surrendering the tenure.

So long as the relations were smooth, the absence of Regulations did not cause hardships; but great demands for cultivable land led to the desire of the lands being let to the highest bidder, and the jenmies began to demand from their tenantslarger sums as advances and larger rents; the tenants naturally did not find it convenient to satisfy the jenmies; and the tenant's failure culminated inlosing his holding.

Serious discontent resulted, complaints were made to the Government, and a communication containing the Command of the Travancore Ruler, was, on 25th Karthigay 1005 M. E. (1829 A. D.), sent to the Appeal Court. It directed the Courts in all eviction suits to maintain the established usage in the country, that the tenant should pay to the jenmi his usual, ordinary and extraordinary dues, and that the jenmies receive the same and let the tenants remain in peace and enjoyment of the property.

In less than 40 years, the discontents broke out afresh, and a fresh Royal Proclamation of 25th Karkatagam 1042 (August 8, 1867) was published, whose paragraph 1 stated that so long as the tenants pay the stipulated rent and other customary dues, they should not be liable to action. Its second paragraph gave the jenmi the rights of readjusting according to the rules and usages, and the rent at the renewal of the lease; and paragraph 3 the rights to sue for recovery of the rent and for ejectment on failure to pay the rent.

The fourth and subsequent paragraphs authorised in case of jenmi's refusal, receipt of deposit of rent and renewal fees in the Munsiff's Court, whereupon, notice would be issued to the jenmi; and if he failed to appear, or, on appearing, refused to use the amount deposited, judgment was to he given according to the facts of refusal by the jenmi, which judgment would bar any action by the jenmi for evicting the tenant. The Proclamation thus conferred occupancy right on kanam tenants, and that was also the view of the Travancore High Court in Vasudevan Raman Nambudiripad v. Nilakantan Madevan Namburi, 2 Trav LR 49 at p. 53 :

'Kanam is not, strictly speaking, a mortgage in this country. The Royal Proclamation has the effect of converting it into a sort of perpetual lease determinable only in certain events. It has, after that Proclamation, lost almost all the incidents of a mortgage while it still retains all the characters of a lease. The Proclamation treats it throughout as such, and it is a misnomer now to call it a mortgage'.

Thereafter, the Travancore Jenmi and Kudiyan Regulation, No. V of 1071, was passed on July 3, 1896. Under it, the proprietorship was still with the jenmi and the permanent occupancy right with the Kudiyan. Section 3 (D defined jenmom lands, Section 3 (2) jenmi to be a person, in whom the proprietary right over jenmom land be vested, Section 3 (3) Kudiyan to be a person who held land on kanapattom tenure, Section 3 (4) 'kanapattom' to be demise of jenmom land made or renewed by the jenmi, by whatever name such demise be designated, Section 3 (5) 'kanam' to be the Arthom or consideration in money or in kind paid for the kanapattom, Section 3 (10) michavaram to be the annual residual rent payable or deliverable to the jenmi whether in money or in kind and Section 3(11) renewal fees to be such fees payable by the kudiyanto the jenmi periodically on occasions when the kanapattom is renewable.

Section 5 provided that every kudiyan had a right of permanent occupancy in his holding, Section 11 made renewal in absence of contract to the contrary obligatory on expiry of a period of 12 years, Section 13 provided the arrears of michavaram and renewal fees charge on the holding, and Section 18 enacted for payment of the renewal fees together with any arrears of michavaram to be condition precedent to the renewal.

8. The enactment gave rise to constant conflicts, the tenants began again complaining of the landlords' tyranny, and the landlords about the tenants' elusiveness. A committee was appointed, and the majority made their recommendations; but the recommendations and the draft bill did not satisfy the parties. Thereafter, a round table conference was held at the residence of the Diwan, at which unanimous conclusions were arrived at.

These conclusions were embodied into an Amending Bill, which was later passed into law in the shape of Regulation No. XII of 1108. The changes brought about were that jenmies' right thereafter was the right only to receive jenmikaram as fixed by law; the kudiyan became the full owner of the land subject only to the payment of jenmikaram to the jenmi, and no renewals thereafter became obligatory.

The period of recovery of arrears of jenmikaram was reduced from 12 to 6 years; the Government undertook the collection of jenmikaram, and the lands, on which the jenmikaram were charged, were to be sold for arrears. Further, by the Amending Regulations the old definition of 'renewal fees' was replaced, and the replaced one reads as follows :

'Section 3 (11). 'Renewal Fees' means such fees as Atukkuvathu, Sakshi, opputusi or the like, agreed to be paid by the kudiyan to the jenmi periodically on occasions when the kanapattom is renewable and includes the fractional fee; and 'fractional fee' means the fee fixed as claimable (in substitution of the renewal fees) in annual instalments at the rate of seven per cent of the aggregate value or amount of the renewal fees due on the expiry of twelve years or in annual instalments proportionately lower in percentage when renewal on the expiry of any longer period is provided for by the kanapattom'..

Section 3 (14) stated 'jenmikaram' to mean the total of the amounts of the annual michavaram, the fractional fee with the commuted cess, and Section 17 provided that the jenmikaram shall be payable to the jenmi with interest, if in arrears. The provisions of the Regulation, when contrasted with those of the Act challenged in these writ petitions, show the letter to be different, and the differences are claimed to render the Act unconstitutional On the ground of being discriminatory. It must not, however, he overlooked that every inequality does not infringe Article 14; and, in support, we would refer to the observation of Das, J., (as he then was), in Charanjitlal Choudhry v. Union of India. 1950 SCR 869 : (AIR 1951 SC 41), which is in these words : 'It is plain that every classification is insome degree likely to produce some inequality, but mere production of inequality is not by itself enough. The inequality produced in order to encounter the challenge of the Constitution, must be actually and palpably unreasonable and arbitrary'.

Therefore, the petitioners must show the differences to be arbitrary and unreasonable; and, when dealing with such complaints, we should not overlook the enactments, that deal with kanam tenures in the Malabar District; for, if the customary rules regarding such tenures all over the Kerala area be similar, and the petitioners' case is that such was the position, the legislature may not be discriminating where it had taken into consideration rules under other enactments dealing with such tenures, through the enactment be not by the same Legislature. It, therefore, becomes relevant to consider how the tenure has been dealt with in the Malabar Districts.

9. Now, opinions about the customary kanam tenure in the Malabar Districts, were not unanimous. Some of the reports of the Collectors and other Revenue officials, made as results of inquiries directed by the Government from time to time for investigating into the nature of the tenures, thought it to be lease, while others found it to he mortgage. Thus, in the earliest of such reports, which is of the Farmer Committee's and is of 1792, it had been observed that most of the monied Nairs were necessitated to farm their estates by others at a Certain fixed rent, and for the security of the landlord, the farmer, called kanamdar, deposited with the landlord a certain sum to remain with him, and on the sum interest was allowed to the kanamdar, and after deducting the amount of interest from the rent, the difference was paid to the landlord.

In the view of the Committee, kanamdars were not mortgagees, but farmers, who deposited a cerain sum of money as security for the payment of the rent to the jenmikar. But Warden, in the report on the conditions in Palghat, made oa March 19, 1801, stated that kanam was a species of tenure greatly resembling a mortgage; the kanomdar paid 1/5 of the produce in grain to the jenmikar; and from that the interest on the money deposited by the kanomdar was deducted, as also sirkar revenue.

The well known Fifth Report in Vol. II at page 81 dealt with tenures in Malabar, and it was stated therein that the jenm lands were conveyed by under-tenures, one being kanapattom, where the proprietor received from the tenant, in addition to his rent, an advance of money which might be considered either as a loan, or as security for the due payment of rent, for which the tenant retained so much as would discharge his claim of interest on the sum advanced, and delivered over what remained to the proprietor.

By 1854, a large number of eviction suits had been filed in courts, and the exact relationship between the landlord and the kanamdar had to be defined in order to provide a valuable guide to the local officers in adjusting disputes. Theretore, the Sadar Court had to define the tenures, and it did by describing the kanom to be a mortgagefor a period of 12 years. The lower courts rigidly followed the directions, which led to discontent.

'In September 1880, the then Collector of Malabar connected a murder with agrarian discontent; and, accordingly, the Government appointed Mr. Logan as Special Commissioner f or investigating into the general question of tenure of lands, who submitted Ms report, in June 1882, and in it he described the jenmikar to be the owner; but who shared with the kanamdar, the actual cultivating tenant, the produces of the land, thus the jenmi and the kanamdar in fact being joint owners of the land.

A Committee was then appointed to advise the Government as to the line, on which legislation should proceed; and it prepared a draft regulating the system of landlord and tenant in Malabar, which, along with the proposal of Mr. Logan, was referred by the Government to the High Court for its opinion. Sir Charles Turner the then Chief Justice, severely criticised the view of the Committee, and the other Judges of the High Court agreed with him.

The Government appointed another Committee, which was recommending a legislation for securing the tenants, on eviction, full value of the improvements; and, as a result of the recommendation, Madras Act, No. 1 of 1887, Came to be passed, by which, on eviction, all kinds of tenants were allowed the value of improvements effected by them. The Act was later repealed, and the Amending Act, No. I of 1900, was passed. After such confused opinions, kanam tenure was bound to be treated as mortgage as well as lease and this is well brought out by Sundara Iyer in his book on 'Malabar and Aliyasanthana Law', wherein at page 290 he describes kanam tenure in these words: 'Kanom, which is a more favourable tenure with pattom fixed at 50 per cent of the net produce, is a special feature of Malabar. Kanam is described in the Sudder Court proceedings as mortgage, with possession, the mortgagee recovering interest on the money he has advanced from the produce of the land and paying the net profits (michavaram) to the landlord. It thus partakes of the character of both a lease and a mortgage. Sometimes the one character predominates, sometimes the other. In a kanam lease, the lease is the substantial thing, the security being a minor matter. In the case of a kanom mortgage, the amount advanced is substantial, the michavaram being but a trifling'.

10. But to continue with the history of the legislations in the area, in 1922 attempt to enact was made when notice of a Bill was given, by which it was proposed to confer occupancy rights on kanamdars of 25 years' standing but the Bill was not introduced, and another was introduced, in 1924, to which the Governor, under Section 81 (1) of the Government of India Act, 1919 withheld his assent, it being then stated that a committee would be appointed to go into the question afresh.

The deliberations and the report of the committee caused the Government to pass the Malabar Tenancy Act, No. XIV of 1930, and it has subsequently been amended by Act No. XXXIII of 1951and Act No. VII of 1954. The preamble to the aforesaid enactment declares that it is necessary to define declare, alter and amend, the law relating to landlord and tenant in the District of Malabar. Jenmi is defined in Section 3(13) as a person entitled to the absolute proprietorship of land, and, kanam by Section 3(14) as the transfer for consideration, in money or in kind, by a landlord of an interest in a specified immovable property, to another called the kanamdar, for the latter's enjoyment, with incidents including, right to hold it for consideration called kanarthom, the liability of the transferor to pay interest and of the transferee to pay michavaram.

Section 21 provides that notwithstanding any contract to the contrary, every kanamdar shall have fixity of tenure in respect of his holding, and shall not be evicted therefrom except as provided for in the Act, but excepts kanamdars from such benefit where the kanarthom exceeds sixty per cent of the value of the jenmi rights in the holding in South Malabar, and in other places forty per cent. The section then provides how the jenmi's right in the holding is to be valued.

Section 21 enumerates the grounds for eviction, which are wilful denial of the landlord's title, wilfully committing waste, collusively allowing a stranger to encroach, and, on the expiry of the period, the landlord's bona fide needs for raising crops for his own maintenance, or for building residences, In this context, we would state that Section 20(3), of the Malabar Tenancy Act, No. XIV of 1930, had allowed, prior to the Amending Act, eviction if the period had expired and no renewal been obtained, but such ground does not find a place in the new Section 25.

Consequently, the earlier definitions of the renewal fee under Section 3(t) as well as Section 17 of the aforesaid Tenancy Act, which vested in Kanamdars the right to claim renewal on the renewal fee paid, are not repeated under the amended Malabar Tenancy Act. Yet another consequence is that the definition of kanam was amended and, instead of the five incidents to the kanam tenure under the old definition by Section 3(1), in the present Act there are only three, causing omission of clauses (4) and (5) of the old Section 3(1), by which the period of 12 years was fixed for kanam and also the liability for the renewal fee.

The new Section 3(14), having not incorporated Clauses (4) and (5) of the old Section 3(1), the entire concept of the realisation of the renewal fee ceased to exist as a result of the modification of the definition section; and the new Section 25 having conferred fixity of tenure on the kanamdar, the result was that thereafter renewal as such was abolished. It is, therefore, clear that in part of what now forms the Kerala State, an enactment is in operation, under which no renewal fee could be levied from the kanamdar, and prior to the Act challenged by these writ petitions was passed, three enactments were operative in the areas where kanam tenancies existed.

The position in the Malabar District which then did not form part of the Travancore-Cochin State, was that no renewal fee was required. The position in the Travancore area was that fractionalfee was required; and so far as the Cochin area was concerned, renewal fee calculated under Section 28 was needed under Section 26 of the Cochin Tenancy Act, No. XV of 1113. The Legislature, when passing a fresh enactment, had three courses open.

It could adopt either what the Travancore Regulation had provided, or what the Malabar Tenancy Act had recently enacted, or it could adopt a middle course by providing for smaller fractional fee. It is clear that the Legislature has taken the third course, and in face of suggestion that renewal fee should he abolished. The question we have to adjudicate in these petitions is whether in doing so, Article 14 has been violated, or the provisions challenged are without rationalclassification.

11. Now, such classification means two things; one is that the classification must be founded on an intelligible differentia, which distinguishes those that are grouped together from others, and the other is, that differentia must have a rational relation to the objects sought to be achieved by the Act. Our Supreme Court has adhered to this test, though Acts according to the aforesaid test have been either upheld or struck down. Thus, in State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284: (AIR 1952 SC 75) it was held that speedier trial of offences may be the reason for the legislation impugned in the case, hut it did not amount to classification and, therefore, the Act was hit by Article 14.

The legislation in this case had established special courts for trying criminal cases, and it was held to be discriminatory. Section 30 of the Criminal Procedure Code was challenged as infringing Article 14, and it was contended in Budhan Choudhry v. State of Bihar, 1955-1 SCR 1045: ((S) AIR 1955 SC 191) that the convictions under Section 366 of the Indian Penal Code by Magistrates were discriminatory, as the accused had been tried by procedure different from that followed in a Court of Sessions.

Rejecting the contention it was held that there was an obvious classification, on which the section was based, namely, that such power may be conferred on a special Magistrate in certain localities only and in respect of some offences only. In Raja Bhairabendra Narayan Bhup v. State of Assam. 1956 SCR 303: ((S) AIR 1956 SC 503) it was held that the Assam State Acquisition of Zamindari Act, 1951, as amended in 1954, did not violate equality before the law, though the State could thereunder select between one estate and another, such selection being based on compensations to the proprietors according to their incomes from the estate.

The Income-tax Act and its procedure came under challenge in Bidi Supply Co. v. Union of India, 1956 SCR 267: ((S) AIR 1956 SC 479) and what was impugned in that case held to be discriminatory, because the Income-tax authorities by an executive order, unsupported by law, picked out the petitioner and transferred all his cases, resulting in considerable inconvenience and harassment to the petitioner. In Ram Krishna Dalmia v. S. R. Tendolkar, AIR 1958 SC 538, after a survey of all the decisions, the following six principles were laid:

(1) A law may be constitutional even thoughit relates to a single individual, if on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;

(2) There is always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it to show that there has been a clear transgression of the constitutional principle;

(3) It must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds;

(4) The legislature is free to recognise degrees of harm and may confine its restriction to those cases, where the need is deemed clearest;

(5) In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters-of common report, the history of the times, and' may assume every state of facts which can be conceived existing at the time of legislation; and

(6) While good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the cowl on which the classification may reasonably be regarded as based, the pre-suimption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or colorations to hostile or discriminating legislation.'

S. K. Das, J., in Moti Das v. S. P Sahi, AIR 1959= SC 942, has held that Article 14 does not forbid reasonable classification and in order to pass the test, two conditions must be fulfilled. In this connection, the learned Judge has observed;

'It is enough to say that it is now well settled by a series of decisions of this Court that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation, and in order to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia, which distinguishes persons or things that are grouped together from others left out of the group, and (2) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, such as geographical, or according to objects or occupations and the like.'

In Rehman Shagoo v. State of Jainmu and Kashmir, AIR 1960 SC 1 it was held that in the circumstances existing in the State of Jammu and Kashmir, the classification is reasonable, and is founded on an intelligible differentia which distinguished persons brought under the Ordinance from others.

It was further held that that differentia had a rational relation to the object sought to be achieved by the Ordinance, namely, to combat a campaign to subvert the Government established by law in the State. In Kangshari v. State of West Bengal, AIR 1960 SC 457 the majority held Section 2(b)and the proviso to Section 4(1) of the West Bengal Tribunals of Criminal Jurisdiction Act not to be violative of Article 14, because the scheme of the Act was to appoint special tribunals to try the scheduled offences, which had taken place in the disturbed areas as defined in the Act.

12. Applying the aforesaid test to the facts of the cases before us, nobody can dispute that the kanam tenants in the Cochin area had not the advantages, that were enjoyed by Kanamdars in the Travancore area, nor what kanamdars enjoyed in the Malabar District. There is, therefore, an intelligible differentia, which distinguishes such persons being grouped together from those, who have been left out.

The object of the, Act is to confer bolter rights on such tenants, and the reduction of the renewal fee is related to the aforesaid object. All these are admitted, but the complaint is that there is no intelligible ground for the kanam tenants of the area getting greater benefits than kanamdars of the Travancore area, and this makes the Act discriminatory. The answer is that the conditions when the kanam tenants of the Cochin area were being given the benefit, were not similar to those when the Travancore Regulation was passed, which was done in December 1932,

The legislature had not then to consider another enactment covering the same subject, though operative in another area and having discarded renewal fee altogether. In the circumstances, the Act has struck a middle course by not merely adopting the provisions of the Travancore Regulation, nor accepting the renewal fee being abolished altogether. In this context, we think the Act, with reduced fractional fee, is reasonably related to the area, over which the Act extends.

After all, reducing the fractional fee of kanam tenants of the Cochin area, who unlike kanamdars of other parts of Kerala, had till then been paying larger renewal fees, can hardly be discriminatory, nor can it be called arbitrary. The petitioner's learned counsel has, however, urged that on the day the Act was passed, the Malabar District funned no part of the Travancore-Cochin State, and the reduction of the benefits of the jenmies in the Cochin area, would be discriminatory, particularly when, after the integration of the two States, the Legislature had in other cases been following the policy of making the laws of the two amalgamated States similar.

The argument overlooks the jemnis of the Malabar Districts, whose position was then worse, and these petitions were being heard when Malabar has become part of Kerala. It is clear that the framers of the Act had before them two enactments, and they made adjustments between the two claims. Therefore, the complaint of the Act being violative of Article 14, fails.

13. The landlords' complaints of their fundamental rights under Article 19(1)(f) having been infringed, are also without substance. The aforesaid right can, under Clause 5 of the same Article, be subjected to reasonable restriction in the interests of the general public; which means that the restrictions must not be arbitrary or excessive. In other words, the restriction permissible under Article 19(5) should be reasonably related to the object of the legislation,and the object must be to serve some interest of the general public also.

The benefit to the general public need not necessarily be direct, but indirect would suffice. That, broadly speaking, is the limit, which can be imposed by legislations on exercise of the rights under Article 19(1)(f) and one of us was a party to Firm of Jamanlal Ramlal Kimteo v. Kishendas, ILR (1955) Hyd. 510: ((S) AIR 1955 Hyd. 194) where the aforesaid rule has been stated. Applying it to the facts of the cases before us it is clear that the object of the Act is to confer benefit on the kanamdar by payments of the renewal fee being converted into instalment payments called 'fractional fee'.

Such form is not disputed to be reasonably related to the object; for the relief had, in the Travancore area, been allowed much earlier. What is complained against is that the lower fixation of the fractional fee is arbitrary, particularly in view of fractional fee that had been allowed in the Travancore area. But the complaint overlooks that the legislature when enacting the Act was confronted with another enactment where the condition of Kanamdar had been improved by renewal fee having been abolished altogether and the reduced fractional fee was a concession to those who were advocating the adoption of similar provision.

It follows that the reduced fractional fee in these circumstances cannot be treated to be without reasonable relation to the object the legislature had in view by enacting the impugned Act. It is further clear that improving tenants' conditions has been treated to be in the interest of the general public. In this connection we would refer Rajah of Bobbili v. State of Madras, AIR 1952 Mad 203 where the validity of the Madras Estates Land (Reduction of Rent) Act (30 of 1947) came to be questioned and it was held that the Act or any of its provisions did not affect materially the right of the landholders to hold property. In the case Rajamannar, C. J., observes as follows:

'Even assuming that the provisions o the impugned Act do restrict the exercise of the petitioners' enjoyment of their property, I am prepared to hold that they can well be supported as reasonable restraints imposed in the interests of a large section of the public and therefore saved by Article 19(5) of the Constitution.'

14. The tenancy legislation in Bhaurao v. Sub-Divisional Officer, Chandur-Morsi, ILR (1954) Nag 816: ((S) AIR 1955 Nag 1), (FB) was held to be saved by Clause 5 in so far as the provisions of the Act imposed reasonable restrictions or the exercise of right to hold and dispose of property in the interest of the general public. Similarly, Sections 6 and 12 of Tanjore Tenants and Pannaiyal (Protection) Act (14 of 1952), were held not to have contravened Article 19(1)(f). We therefore hold the complaints of the landlords to be without substance.

15. Coming to the grievance of Article 31 having been infringed the observation of Patanjali Sastri, C, J., in State of West Bengal v. Subodh Copal, 1954 SCR 587: (AIR 1954 SC 92) is fatal to the petitioners' case, where His Lordship says:--

'I find it difficult to hold that the abridgment sought to be effected retrospectively of the rights of a purchaser at a revenue sale is so substantial as to amount to a deprivation of his property within the meaning of Article 31(1) and (2).'

It follows that abridgment of property which does not bring about deprivation would not justify thecomplaint of the right under Article 31(2) havingbeen infringed. The Act has not abolished jenmi's right to receive renewal fee, but has abridged the right and therefore no deprivation has occurred to attract Article 31(2). It follows that the landlords' complaints about the infringement of their constitutional rights fail, and the landlords' applications must be dismissed.

16. Coming to the tenants' petitions, the respondent's defence is that Kanam tenures in the Devaswom lands are governed by rules of their own, and the tenants cannot take any shelter under the Act. To appreciate the defence a short sketch of how the aforesaid lands were managed in the Cochin area becomes necessary. All the Devaswomas were originally managed by the hereditary trustees, who in some cases were themselves the founders, and in others acquired the rights by other means.

In troublesome time the trustees of some Devaswoms could not administer the trusts satisfactorily and consequently surrendered them to the State. Yet another reason for the management of such lands being assumed by the State was the mismanagement by the dishonest trustees. A large number of Devaswoms, therefore, came under the direct management of the State. The petty officers who managed them, however, neglected their duty, with the result that there was widespread dissatisfaction. That was the position when Col. Munroe was appointed British Resident for Tra-vancore and Cochin States.

He, with the view to place their administration on a satisfactory footing proposed that all Devaswom properties, whether movable or immovable, be treated as Sirkar property; all Devaswom receipts be merged with the general revenue of the Sirkar and a fixed scale of expenditure for all the temple ceremonies be paid from the treasury. The Devaswoms, whose revenues and expenditures were thus completely merged in the general revenue of the State, were locally designated as 'incorporated Devaswom'.

About 25 years later, two well-known temples were surrendered by the trustees, but these were not treated like Col. Munroe had treated others, with the result that their properties and assets were not amalgamated, but kept separate from the State Revenue. Later some other Devaswoms came under the State management, and they also were treated like the two, that had been surrendered. Thus those Devaswoms, where there was no merger of lands in the State Revenue, came to be called 'unincorporated Devaswoms.'

The system of incorporated Devaswom introduced by Col. Munroe, and the other as well, were found not to be satisfactory, which brought about appointment of a Special Officer in August 1907 to study the whole situation, who made an exhaustive investigation of the administration, submitted proposals, and thereafter the completescheme of Devaswom adminisration was brought into force in September 1909.

Thereunder, all 'incorporated' and 'unincorporated' Devaswoms were amalgamated and for administrative purposes they were put into four groups. The receipts and expenditures of each were entirely separated from the general revenue, the Devaswoms were allowed to bank with the State treasury, the land revenue department was relieved of all devaswom works except the collection of rent of the incorporated Devaswoms, and the scheme was legalised by a proclamation of His Highness the Maharaja, which was issued on February 11, 1910.

17. Under it all institutions falling into one group were to have common accounts for their incomes and expenditures and the surplus, if any, after meeting the annual expenditures was to be credited to the particular group. In particular the Diwan was, by Section 9 of the Proclamation, authorised with the Ruler's sanction to frame rules, which would have the same force and validity as the Proclamation, for regulating the renewal of leases, collection of rent, rates of rent payable by tenants, procedure for fixing such rent, and such other matters as may be necessary for securing efficiency and uniformity in the administration of all Devaswom lands.

Under one Regulation, which was framed on March 21, 1910, arrears of rent together with interests, may be recovered by the Devaswom Commissioner or by any of the persons authorised by him through sales of the defaulters' movable properties or by placing the land on 'nadapattom'. Also clause 7 and subsequent clauses of the Regulation provided the procedure for taking the coercive steps. By another Regulation under the same Section 9 of the Proclamation, which is of November 8, 1910, rules were framed for regulating the management.

Clause 1 (b) of this Regulation defines rent to include renewal fee on Devaswom land and Clause l(c) defines tenant to mean any person who holds any Devaswom lands, Part III deals with the settlement of kanam land, Clause 13 providing that all lands held under kanam shall be charged with full rents fixed in accordance with the provisions of Part II of the Rules, but from rents so charged deduction shall be made on account of interest on kanom. Clause 14 deals with kanam debt and Clause 16 says that kanam lands shall be subject to renewal periodically once in 15 years, and that the tenant shall be liable there to pay renewal fees.

Yet another Regulation of July 12, 1911 authorised the Commissioner to fix money value of the rent in kind which must be at the market rate payable. Such were the special provisions concerning the aforesaid lands when the legislature enacted Cochin Tenancy Act No. II of 1090 on October 24, 1914, and apparently the relation between the Devaswom Commissioner and the kanam tenants of Devaswom lands was not governed by the later Act The position under Cochin Tenancy Act, No. XV of 1113 which was passed on January 29, 1938, appears to be the same and the Devaswom management was later excluded from the competence of the Cochin legislature under Section 50-G(1) that was introduced into Act XX of 1113 by the Amending Act I of 1123.

18. There is nothing in the later arrangements for administering the aforesaid incorporated or unincorporated Devaswoms to suggest variation of the Special Regulation. Article 8(d)(h) of the Covenant of Integration between the Rulers of the two States provides for vesting of the administration of Devaswoms in the Cochin area in the Cochin Devaswom Board. Ordinance No. 1 of 1124 defined by Section 2 (c) existing law of Cochin area to include proclamations and directed by Section 4 the existing law of Cochin State until altered and amended by competent authority to continue. Thereafter Section 2 of Ordinance No. IV of 1124 continued the administration of the incorporated and unincorporated Devaswoms under the management of the Maharaja of Cochin until August 1, 1949.

The Hindu Religious Institutions Ordinance No. IX of 1124, dealt with the Cochin Devaswom Board, Section 58 vested the administration of the Devaswom lands in the aforesaid Board and Section 65 made the Board a corporate, body. Finally Travan-core-Cochin Hindu Religious Institutions Act, No. XV of 1950, was passed whose Part II deals with the Cochin area. Under Section 62 the administration of incorporated and unincorporated Devaswoms and Hindu Religious Institutions are vested in the Cochin Devaswom Board, and Section 113 reads as follows:--

'113. (1) All moneys recoverable under Part II of this Act or the rules framed thereunder other than the money recoverable under Sub-section (1) of Section 94 shall be deemed to be arrears of revenue within the meaning of the Revenue Recovery Act, for the time being in force, and shall be recoverable in the manner provided therefor in the said Act.

(2) The provisions of the Devaswom Proclamation dated 29th day of Makaram 1035 corresponding to the 11th day of February 1910 and the rules issued thereunder in respect of the procedure to be adopted and the mode of recovery ofupattom, michavaram, renewal fees and other dues shall apply mutatis mutandis to the procedure and mode of recovery of pattern, michavaram, renewal fees, and other dues relating to incorporated and unincorporated Devaswoms and to the institutions whose management has been assumed under the provisions of the Cochin Hindu Religious Institutions Act, I of 1081, or is assumed under the provisions of part II of this Act'.

19. The Respondent's learned Advocate claims the notices challenged by the tenants' petition to be under the special rules that have been preserved by Act No. XV of 1950 and which in absence of express words would not be overruled by the general law contained in the Act. Should we hold the argument not to be sustainable the next question to decide is how far the tenants in absence of notifications fixing the money rate under the Act can be treated to be defaulters and their properties liable to be sold for failure to pay the vent in money.

20. The Devaswom Board's learned Advocate, in support of the argument concerning Section 9 of theProclamation and the Regulations thereunder, being special provisions and not having been repealed by the Act, has relied on the maxim generalia specialibus non derogant. The legal position is well summarised by Maxwell on Interpretation of Statutes (10th Edn., p. 177) in these words:--

'Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language; or there be something which shows that the attention of the legislature had been turned to tlie special Act and that the general one was intended to embrace the special cases provided for by the previous one. or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one.'

Craies on Statute Law (5th Edn., p. 348) deals with the position in these words:--

'The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two arc repugnant, is said not to apply if the prior enactment is special and the subsequent enactment is general, the rule of law being as stated by Lord Selborne in Seward v. Vera Cruz, (1885) 10 AC 59 (68) that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you arc not to hold, that earlier and special legislation indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so.'

21. In support of the aforesaid argument learned advocate has relied on Barker v. Edger, 1S98 AC 748 where it was held that the presumption was that a subsequent general enactment was not Intended to interfere with a special enactment unless the intention so to do was clearly manifested. Lancashire Asylums Board v. Manchester Corporation (1900) 1 QB 458 has next been referred to where it was held that the provisions of the local Act were not affected by the Agricultural Rates Act. 1896. Reliance was also placed on Montreal Corporation v. Montreal Industrial Land Co., AIR 1932 PC 252 where, in connection with the Canadian Statute it was held that when the legislature had given its consent to a separate subject and made provisions for it, the presumption was that a subsequent general enactment was not intended to interfere with the special provision, unless it manifested that intention very clearly. Lastly, reliance was placed on the following observasion of Bhagwati, J., in State of Bombay v. United Motors (India) Ltd., AIR 1953 SC 252 at p. 273:

'It is a well-known rule of the interpretation of statutes that a 'particular enactment is not repealed by a general enactment in the same statute.'

22. It cannot, however, be disputed that, where the provisions of the later Act be so inconsistent with and repugnant to the provisions of an earlier Act that the two cannot stand together repeal by necessary implication takes place. Craies on Statute (Fifth Edn. at p. 352) states this legal position in these words:--

'And if a special enactment, whether it be in a public or a private Act, and a subsequent general Act are absolutely repugnant and inconsistent with one another, the Courts have no alternative but to declare the prior special enactment repealed by the subsequent general Act.' An illustration of the aforesaid rule is Duncan v. Scottish North Eastern Rly., (1870) 2 SC and Div. 20 where the exemption from the liability to pay rates conferred on the defendant railway company by the special Acts, under which it was made, was taken away by a subsequent Poor Law Amendment Act, because the rule given by the Poor Law Act was construed to be wholly inconsistent with the exemption alleged to be contained in the Company's Local Act.

23. It is, therefore, clear that should the change in kanam tenures that has been effected by the Act be so fundamentally inconsistent with and repugnant to what was earlier allowed by the Regulation, such special Regulations concerning kanam tenures of Devaswom land would stand repealed. Now the latter had been framed in 1910 and then a kanam-holder was either a tenant or mortgagee. Also it would be useful to recall that the change, which the Act seeks to introduce ;n the Cochin area, had been earlier effected in, the Travancore State by amendment through Regulation No. 12 of 1108 to the Jenmi and Kudiyan Regulation No. 5 of 1071.

That change was not known in the other parts of Malabar, and the earlier legislations in the Cochin State still preserved kanam tenancy. In 1932 the amendment made the kanam tenant the owner, and jenmikaram the charge on his land. The position became the same in Malabar in 1955. The same concept has been introduced by the Act in the Cochin area; and, consistently with the tenant becoming the owner and jenmikarani becoming a charge, there would be no renewal and no need in revision of jenmikaram. Consequently Sections 9 and 10 of the Act so provide.

A third sequence would be the absence of the right of distress, which the landlord had earlier to recover the arrears of rent. It is true that the Govt. under the Act is authorised to take coercive measures to realise the jenmikaram, but that is a procedure for enforcing the charge rather than the exercise of the right of distress on behalf of the landlords. It follows that should all kanam tenures within the Cochin area were to be sc converted and governed by Section 3 of the Act, the rules under Section 9 of the Proclamation authorising renewal fee, rent revision, and the right of distress concerning kanam tenants, would stand repealed, because of their utter inconsistency with and repugnancy to the new kanam tenure under the Act.

In other words, the rules under the Proclamation, which had, in 1910, been framed, contemplated the kanam tenure to be either a mortgage or lease terminable on certain grounds; and such rules would not govern the new kanam-holder, who had become owner, and would stand repealed; norwe find any provision in the Act excepting Devaswom lands from the operation of Section 3 of the Act. On the other hand, we find the preamble of the Act stating it to be expedient to confer full proprietary rights on kanam tenants in the Cochin area subject to the payment of jenmikaram.

We further find Section 1 extending the Act to the whole of Cochin State and Section 3 providing that the kanam tenant shall be deemed to be the owner of the land. The intention is to cover all kanam tenants, and, therefore the Act extends to Devaswom lands as well. With the change of the tenure, the earlier rules conferring special rights of landlord on the Devaswom Commissioner become inconsistent with and repugnant to the Act and stand repealed. That is also the inevitable consequence of the legislature being directed to grant equal protection of law, and there being no rational classification for kanam tenants in Devaswom lands of the area from being exempted from the operation of the Act.

24. AS regards the tenants' explanation for failing to pay the money value of their rents in kind, it should be recalled that Section 49 of the Act authorises the Government to fix the commutation rates on advices of Committees by notifying the same in the Gazette. The Act had come into force on March 1, 1956, the rules under the Act came into operation on July 5, 1956 and the relevant commutation rates were fixed on November 22, 1957, being published in the Gazette on December 3, 1957.

The tenants explain their failure to pay the money for their rents in kind due to the aforesaid delay. We feel no useful purpose would be served by adjudicating on the aforesaid plea, because the provisions, under which the respondent purports to act when issuing the notice challenged by the tenants' writ petitions, would, to the extent of their repugnancy with the provisions of the Act, stand repealed, and the result is that the respondent's right of distress was lost.

Those notices would then amount to threats of doing something, which would no longer be lawful. In other words, the respondent, so far as the kanam tenures in the lands were concerned, can proceed under the Act alone; and admittedly the notices do not make the demands under the Act. It follows that the tenants petitioners were justified in seeking enforcement of their fundamental right under Article 31(1) from this court, as acts not legal were threatened against their rights of property. We would, therefore, direct the respondent to the tenants' petitions not to proceed further under the aforesaid notices.

Therefore O. Ps. 339/56, 106/57 and 200/58 are dismissed with costs, and O. Ps. 250/57 129/57 265/57, 269/57, 284/57, 314/57 and 285/57 are allowed, but without costs, the respondent being under a bona fide belief of being entitled to issue the notices.

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