VASUDEVAN NAMBOODIRI Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is a petition on behalf of Jenmies as defined by the Travancore Jenmi and Kudiyan Act of 1071, as amended by the Amendment Act xii of 1108, hereinafter referred to as the Act, for the issue of a writ of mandamus or other appropriate writ or direction to the respondent, the State of kerala, to revise in accordance with S. 46 of the Act and the Rules framed thereunder, the commutation rates for Jenmikaram, as settled in kind, fixed by a notification Ext. P dated March 4, 1944. The right of the Kudiyan to pay in moneys the value of the commodity deliverable in kind is derived from S. 18 of the Act which has provided that: "where the Jenmikaram or any portion of it, consists of paddy or other commodity the Kudiyan shall be entitled to pay in money the value of such paddy or other commodity at the commutation rates fixed under the provisions of S. 46. " S. 46, omitting parts of it which are not material, is in the following terms: S. 46 (I): "subject to the provisions of this regulation, Our Government may from time to time fix the rates for the commutation into money or paddy or other commodities for the purposes of this regulation and notify the same in Our Government Gazette, and the rates so fixed shall be the rates for commutation for the purposes of this regulation. " Explanation 2: "the power to fix rates includes the power to revise rates already fixed. " [2] "in fixing the rates, Our Government shall be guided by such Rules as may be passed by Our Government after previous publication. " [3] "such Rules shall, inter alia, provide for the appointment of a Committee to advise our Government as to the rates to be fixed under this Section. The Committee shall consist of five members, two to represent the Jenmi interests, two to represent the Kudiyan interests and one, an official, to be the Chairman, and shall follow such procedure as may be prescribed. " Rules have been framed under the Act, called the 'jenmikaram Payment and Commutation Rules' and may be referred to shortly as the Rules. Rule (2) defined 'commutation Rates' as meaning "rates at which paddy or other commodities forming part of Jenmikaram are to be commuted into money for purposes of payment and recovery of the Jenmikaran. " R. 6 provides that: "the commutation rates once fixed shall ordinarily remain in force for two years but may be revised at any time and shall remain in force until rates are fixed in their place afresh. " By R. 8 Government has to appoint a Committee as required by S. 46 (3) of the Act, and by R. 25, commutation rates have to be fixed, having regard inter alia to the following among other matters: [i]: "the price at which the Kudiyan can sell the commodity in a convenient market in or near the Taluk in which the land liable to the payment of Jenmikaram is situate. " [ii]: "the price at which the Jenmi can buy the commodity in a convenient market in or near the Taluk where the commodity is likely to be spent by him. " [iii]: "the fact that within the period of the instalment of payment the prices may vary from time to time. " [iv]: "the cost of the remittance of the Jenmikaram by the Kudiyan to the Jenmi. " [v]: "that a percentage variation may be necessary for equalising prices. " The above are the material provisions of the Act and the relevant Rules which bear on the controversy in this case.

(2.) IT has to be noted, that the commutation rates under ext. P were fixed sixteen years ago. The petitioners have alleged in the affidavit in support of the petition, to which no counter has been filed, that the commodity prices have since registered a considerable rise, and that the rates fixed in Ext. P do not reflect the prevailing market position. They have also produced Ext. P-1, as evidence of the market rates which prevailed in the year 1958, and which, it was not denied, are higher than those in Ext. P. IT has not been disputed that the Jenmies had been time and again making representation to the first respondent, to take steps for revising the rates, but to no purpose. At last three members of the Association representing the jenmies moved this court by O. P. No. 142 of 1953 for a writ of mandamus to issue to the respondent, to revise the rates, but the Government Pleader then represented to the court, that a report on the subject had been received by the respondent from the Board of Revenue and that "the feasibility of appointing a committee as envisaged under the rules" for a revision of the rates was in contemplation. On this representation, the petition was dismissed, with liberty to the petitioners to move again "in case no definite action is taken by the State within three months from the date"; this was on July 27,1954. The present petition has been filed in these circumstances.

(3.) OTHER decided cases furnish illustrations of the application of this principle. In R. v. Metropolitan Police Commissioners (1911) 2 K. B. 1131, licensing authorities empowered to renew licences of taxi-cab drivers and stevedores were held obliged to do so, when an applicant had complied with the prescribed procedural requirements; in R. v. Tynemouth, r. D. C. (1896) 2 Q. B. 219, local authorities empowered to approve building plans were held to be obliged to approve plans that were in conformity with their by-laws. Enabling words were held to impose obligatory duty "whereby the joint effect of Bankrupts Act 1571 (13 Eliz, C. 7), S. 2 and Bankrupts Act 1604 (1 Jac. 1, C. 15), S. 3, the Lord Chancellor 'shall have full power and authority' to issue a bankruptcy commission" and "where by arbitration Act, 1889, (52 & 53 Vict. C. 49), S. 5, the court 'may' appoint an arbitrator or umpire (per Esher M. R. Re Eyre and Leicester (1892) 1 Q. B. 136)" - See stroud's Judicial Dictionary, 3rd Edition, Volume III, page 1757. It is unnecessary to multiply instances.