Case: Cochin Devaswom Board, Trichur Vs. Vamana Shetty &amp; Others

2. Kanam tenure has a feudal origin. Broadly stated it is a customary transfer which partakes of the character of a mortgage and of a lease: it cannot be redeemed before a fixed number of yearsnormally twelveand the (Kanamdar)e is entitled on redemption to compensation for improvements. The annual payments to the (Jenmi)r are regulated by what remains of the fixed share of the produce after deducting interest. If the land is not redeemed on the expiry of 12 years, a renewal fee becomes payable to the jenmi. The Cochin State Manual contains the following description of the Kanam tenure in the Cochin region:"The Verumpattam (simple lease) becomes a kanam lease when the jenmi) acknowledges liability to pay a lump sum to the tenant on the redemption of his lease. In the old days his liability was created in most cases as a reward to the tenant for military or other services rendered by him, but in more recent times, kanam encumbrances were generally created by the jenmi borrowing money from his tenant to meet any extraordinary expenditure by the conversion of the compensation payable to Kuzhikanam (lessee who had a right to make improvements) holders into a kanam debt, or by the treatment of the amount deposited by the tenant for the punctual payment of rent ande cultivation as a charge on the land. In kanam leases the net produce, after deducting the cost of seed and cultivation, is shared equally between the landlord and the tenant, and from the share of the former the tenant is entitled to deduct interest on the kanam amount at five per cent. The, that is payable to the jenmi after making these deductions is known as michavaram. The kanamdar is entitled to the undisturbed enjoyment of the land for twelve years, but formerly it was for the lifetime of the demisor. At the end of this period, the lease may be terminated by the jenmi paying the kanam amount and the value of the improvements effected by the tenant, or it may be renewed on the latter paying a premium or renewal fee to the landlord"After the expulsion in 1762 of the Zamorin of Calicut who had invaded Cochin, the Ruler of Cochin divested the chieftains who had supported the invader of their administrative powers and confiscated their properties, and the Devaswoms under their management. Managers of the major Devaswoms who had welcomed the invader were also deprived of their powers, and administration of a large majority of Devaswoms was assumed by the State. Some minor Devaswoms were later taken over by the State, because of incompetent or dishonest management, and a scheme was devised by the State for maintenance of accounts of the Devaswoms properties and for administration of the affairs of the Devaswoms according to the existing usage. The Devaswoms, revenues and expenditure whereof were thus completely merged in the general revenue, were called Incorporated Devaswoms. Some time after the incorporation of these Devaswoms, management of twon endowed temples was surrendered to the Ruler, but administration of these Devaswoms was not amalgamated with the "Incorporated" Devaswoms and their expenditure continued to be met from the receipts from the temples. Later the State assumed management of some more Devaswoms and treated them in the same manner as the two major temples. These institutions which were later acquired were treated as independent of each other as well as of the "Incorporated" Devaswoms and were called "Unincorporated" Devaswoms3. On February 11, 1910, the Ruler of Cochin issued a Proclamation publishing rules to secure better administration of the Incorporated and Unincorporated Devaswoms. The rules provided that the endowments attached to and the income derived from the Devaswoms, whether "Incorporated" or "Unincorporated", shall be constituted into a Common Trust for all administrative purposes, that accounts shall be maintained as directed and that the surplus after defraying the expenses shall be appropriated in the manner prescribed. By Cl. 9 the Diwan of the State was given authority to frame rules for carrying out the main object and the scheme of the Proclamation, and the rules so framed were to have the same force and validity as the Proclamation, and were to regulate the renewals, prescribe the mode of collection of rents as well as rates of rents payable by tenants, and to provide for such other matters as may be necessary for securing efficiency and uniformity in the administration of the landed properties belonging to all Devaswoms. The Diwan of Cochin promulgated on March 21, 1910, rules regulating procedure in the matter of collecting Pattam, Michavaram, renewal fee and other dues payable to Devaswoms and other religious institutions. The rules provided for maintenance of public registers in respect of landed properties, payment of rent due by the tenants to the Devaswom Officer and prescribed methods for recovery of arrears by sequestration of property either temporarily or permanently. These rules applied to ally and kanam4. On November 8, 1910, some more rules were published by the Diwan. These rules were designed to regulate the principles and procedure to be observed in fixing the rates of rents, renewal of holdings and for securing efficiency and uniformity in the administration of landed properties of all the Devaswoms. By Cl. 5 the principles to be followed in the classification of lands and for fixing rents were prescribed. It was directed by Cl. 8 that the lands shall be carefully examined and classified with reference to soil, situation, productiveness, drainage and irrigation facilities and other relevant considerations. By Cl. 13 all Devaswom lands held under kanam, and other tenures of a cognate nature were to be charged full rent fixed in accordance with the provisions of Part II of the Rules, but from the full rent so charged, deductions were to be made on account of interest on kanam, etc. By Cl. 16 it was provided that holdings of land under kanam and other tenures were subject to renewal periodically once in fifteen years, at each of which occasion the tenant was liable to pay renewal fee calculated at the customary rates prevailing in each Devaswom5. On July 12, 1911, supplementary rules were published to regulate the administration of lands belonging to Devaswoms and for maintenance of accounts connected therewith. By Cl. 3 rights and obligations under a Pattah to be issued by the Devaswom were prescribed and these obligations under the Pattah were to be embodied in a kychit (undertaking) which each Devaswom tenant receiving a Pattah had to execute6. On October 24, 1914, the Maharaja of Cochin promulgated the Cochin Tenancy Act II of 1090 M.E. (1914) A.D.). The expression "Kanam tenant" was defined by S. 2 (c) as meaning a tenant who holds lands on payment of consideration in money or in kind or partly in money and partly in kind to the landlord for his holding, and on a demise made or renewed by a landlord on a tenure that is subject to renewal after a fixed period on payment of a renewal fee. "Michavaram" was defined in S. 2 (g) as "whatever is agreed to be paid to a landlord by a kanam tenant after deducting from the pattom the interest due on the kanam". Provision was made in Ch. III for renewals of kanam holdings and ejectment of kanam tenants and for other incidental matters7. On May 29, 1949 the Rulers of Travancore and Cochin States entered into a covenant for the formation of the United State of. On January 26, 1950 the State ofn became a Part B State within the Union of India. By S. 62 of Act 15 of 1950 effect was given to Art.D of the covenant and it was provided that the administration of "Incorporated" and "Unincorporated" Devaswoms and Hindu religious institutions which were under the management of the Ruler of Cochin immediately prior to the first day of July, 1949, and all their properties and funds and the estates and all institutions under the management of the Devaswoms Department of Cochin, shall vest in the Cochin Devaswom Board. By S. 113 (2) the provisions of the Devaswom Proclamation, dated February 11, 1910 and the rules framed thereunder in respect of the procedure to be adopted and the mode of recovery of pattom, michavaram, renewal fees and other dues were, it was declared, to apply mutatis mutandis to the procedure and mode of recovery of pattom, michavaram renewal fees and other dues relating to "Incorporated" and "Unincorporated" Devaswoms8. The Legislature of the State ofn enacted Act 24 of 1955 called then Kanam Tenancy Act 24 of 1955 with the object of conferring full proprietary rights on kanam tenants in the Cochin areas subject only to the payment of jenmikaram and to provide for the settlement, collection and payment of jenmikaram and for matters incidental thereto. By S. 3 (1) of the Act it was provided:"From and after the commencement of this Act, the Jenmi shall not have any right, claim or interest in any land in a holding except the right to receive the jenmikaram thereon and thet shall be deemed to be the owner of the land subject only to the payment of the jenmikaramExplanation (1).* * * *Explanation (2).* * * *Explanation (3).* * * *The jenmis right as well as thes right were declared heritable and transferable by sale, gift or otherwise. By S. 5, jenmikaram was made a first charge on land. Under the customarye the jenmi was either a lessor or a mortgagor having rights of ownership in the land but by Act 24 of 1955 the relationship was fundamentally altered, subject to payment of jenmikaram thet was declared a proprietor of the land and the right of the jenmi was only to receive the jenmikaram.

Court's reasoning:
The expression "Jenmikaram" was defined by S. 2 (13) as the amount "payable in respect of that holding of land under the provisions of this Act by the kanam-tenant to the jenmi every year in lieu of all claims of the jenmi in respect of the holding, or land and shall be the sum total of the michavaram and the fractional fee"; "kanam-tenant" was defined by S. 2 (12) as a person who holds land on kanam tenure; and a "Jenmi" was defined in S. 2 (3) as "a person immediately under whom a kanam-tenant holds". "Renewal fee" was defined in S. 2 (11) as fee or fees payable by a kanam-tenant to his Jenmi under the contract of tenancy for the renewal of the legal relationship under which the kanam-tenant has been holding any land. "Holding" was defined by S. 2 (2) as a parcel or parcels of land held under a single engagement by a tenant as a kanam from a jenmi and shall include any portion of a holding as above defined which the jenmi and kanam-tenant have agreed to treat as a separate holding. By S. 2 (4) "Kanam" meant a demise with the incidents specified therein. "Michavaram" was defined by S. 2 (6) as meaning 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 purankadam, if any. Relying upon these definitions it was urged that the Act applies only to land held under a contract of tenancy and not to land in respect of which the Michavaram and the renewal fee are governed by rules framed under the Proclamation of 1910. It was claimed that the definitions in the Act disclosed clearly an intention not to interfere with the relation between the kanam-tenants and jenmis in respect of the Devasom lands - "Incorporated" or "Unincorporated". This argument in substance canvasses the plea that the relations between kanam-tenants of the Devaswom lands were not governed by contracts12. This plea is, in our judgment, without substance. It is true that by Part II of the Rules dated November 8, 1910 issued in exercise of the powers under cl. 9 of the Proclamation of 1910, rules were framed for fixation and collection of "michavaram", "pattom", renewal fee and other dues in respect of Sirkar Devaswoms and other religious institutions. By Cl. 13 of the Rules, rent in respect of all Devaswom lands held under kanam tenure was to be fixed in accordance with the provisions of Part II of those Rules and the kanam-leases are to be renewed every fifteen years as provided in Cl. 16. By Cl. 25 it was provided that before the introduction of the new rates of rent, a rough Pattah will be furnished to each tenant; showing the details of his holding, rent to be paid, the kanam amount, interest deductions and renewal fees fixed on the kanam holding, if any. Provision was then made in Cls. 27, 28 and 29 for lodging objections relating to the draft Pattah and determination thereof, and for the issue of a final Pattah in Form C under the signature of the Devaswom Commissioner setting out the particulars of his holding, the rent due from him in kind as well as in money including miscellaneous items, the kanam amounts, interest deductions and renewal fees on kanam lands held by him and the number of instalments in which the rent was payable. Clause 29 further provided that the Pattah so issued shall be considered to be sufficient acknowledgment by the Government of the tenants right to occupy the land or lands comprised in his holding on the conditions specified in the Pattah and that the tenants obligations on these conditions shall be embodied in a corresponding kychit. By Para 3 of the supplementary rules dated July 17, 1911 which were intended to regulate the administration of lands belonging to Sirkar Devaswmos the rights and obligations under the Pattah were prescribed and by sub-para. (f) of that paragraph it was provided that the obligations under a Pattah shall be embodied in a kychit in Form Appendix II which each Devaswom tenant receiving a Pattah shall execute14. It is true that the Proclamation of 1910 and the rules framed thereunder have not been repealed by the Act. But they could not be repealed for reasons which are obvious. The machinery for grant of Pattah and the execution of kychit was prescribed under those rules. The repeal of the Proclamation and the rules framed thereunder would have necessitated a fresh enactment under which the terms which were to govern the relations between the jenmi and the kanam-tenant were determined. Again repeal of the Proclamation would have necessitated re-enactment of Cls. 2 and 3 thereof which set up a Common Trust and prescribed the management through the Devaswom Department. Again the rules framed by the Diwan set up machinery for fixation of rent and other dues and for recovery thereof in respect of lands held on kanam and other tenures as well. No inference may therefore arise from the notifications issued by the State after enactment of Act 24 of 1955 in pursuance of the rules and Proclamation of 1910 that the Act was not intended to apply to kanam-tenants holding lands from Devaswoms. The notifications dated February 4, 1958, and July 1, 1958 issued by the Kerala Government in exercise of the powers conferred by Cl. 9 of the Cochin Proclamation amended the supplementary rules regulating the administration of lands belonging to Sirkar Devaswoms and thereby enabled tenants from whom paddy demand was due according to Pattah to deliver the same in kind or pay the value of paddy calculated at the average nirak rate published by the Government. The notifications are in general terms and could apply to tenures other than those governed by the statute enacted by the Legislature.The Act must be deemed therefore to have partially superseded the Proclamation and the rules framed in so far as the latter related to the rights and obligations of the kanam-tenants in respect of land held by them from the Devaswom BoardThe argument assumes that the principal incidents of the kanam-tenure in the three regions of the Kerala State are identical and that when Act 24 of 1955 was enacted, without any rational ground a distinction was made between the Jenmies in respect of kanam lands in the Travancore and Cochin regions and after the reorganisation of the State in 1936 that discrimination was perpetuated even qua the Jenmies in the Malabar region. This assumption on the finding recorded by the High Court on an extensive review of the legislative history in the three regions has no basis in fact. The relation between the Jenmies and the kanam-tenants in the Travancore region was governed by the Jenmi and Kudiyan Regulation No. 5 of 1071, M. E. as later modified by Regulation No. 12 of 1108 M. E. The incidents of the kanam-tenure in Travancore region were substantially different from those prevailing in Cochin. The customary kanam-tenure in Malabar region was governed by Madras Act 1 of 1887 which was amended by Act 1 of 1900. Later the Madras Legislature passed the Malabar Tenancy Act 14 of 1930 which was amended by the Acts 33 of 1951 and 7 of 1954From a review of the provisions of the Act, the High Court observed that no renewal fee could be levied from a kanamdar in the Malabar region and that fixity of tenure was conferred by S. 25 of Act 14 of 1930, that whereas in the Malabar region no renewal fee was required to be paid, in the Travancore region fractional fee was charged and that in the Cochin region a renewal fee calculated under S. 28 was payable under the Cochin Tenancy Act 15 of 1938. The Jenmies in the three regions were, therefore, not similarly circumstanced. If the Legislature with a view to agrarian reform selected the Cochin region and enacted an Act limited to that region, it could not be said, merely on the ground that it applies only to the Cochin region, that it is based on no intelligible differentia. The Board only pleaded that by the enactment of the Act there was discrimination between Jenmies in the three regions.In the absence of any plea and proof about relative fertility of the soil, nature of crops raised, extent of holdings, historical development of the kanam-tenure and the terms on which the kanam-tenants hold land from the Jenmies, it would be impossible to decide whether the Jenmies in the three regions are similarly circumstanced and that the Legislature has made an unlawful discrimination by providing a different tariff of payments. A person relying upon the plea of unlawful discrimination which infringes a guarantee of equality before the law or equal protection of the laws must set out with sufficient particulars his plea showing that between the persons similarly circumstanced, discrimination has been made which is founded on no intelligible differentia. If the claimant for relief establishes similarity between persons who are subjected to a differential treatment it may lie upon the State to establish that the differentiation is based on a rational object sought to be achieved by the Legislature.In the present case the pleading of the Devaswom Board is wholly insufficient to discharge the onus of proving similarity of status between the Jenmies in the three regions, and the findings recorded by the High Court which are not challenged before us clearly show that there is a difference between the relations governing the Jenmies and the kanam-tenants in the three regions. The plea about infringement of the fundamental right under Article 14 of the Constitution must therefore fail.