Full Judgment Text
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PETITIONER:
THE COCHIN DEVASWAM BOARD
Vs.
RESPONDENT:
CAPTAIN E.M. GEORGE & ORS.
DATE OF JUDGMENT17/01/1995
BENCH:
PARIPOORNAN, K.S.(J)
BENCH:
PARIPOORNAN, K.S.(J)
VERMA, JAGDISH SARAN (J)
BHARUCHA S.P. (J)
CITATION:
1995 SCC (2) 387 JT 1995 (1) 663
1995 SCALE (1)200
ACT:
HEADNOTE:
JUDGMENT:
1. These are connected cases. The plaintiff in O.S. No.
118 of 1958, Sub Court, Ernakulam -- Cochin Devaswom Board,
Trichur (hereinafter referred to as the ’Board’) -- is the
appellant in C.A. No.2312 of 1977. The respondents in the
said apppeal, defendants 2,4,6,1 1, legal representatives of
the 8th defendant and the legal representative of the 1st
defendant in the suit am the "tenants" of the suit property.
They are the petitioners in S.L.P. No. A906 of 1978. The
Board appellant in C.A. No. 2312 of 1977 is the respondent
in S.L.P.No.4906 of 1978.
2. The suit, O.S. No. 118/58, Sub Court, Emakulam had a
chequred career. It was filed by the Board, representing
one of its institutions or units the Ayyampilly Devaswom
(hereinafter called ’Devaswom") against the tenants under
different demises -- Kanam, verumpatton and other demises.
The Board prayed for a declaration that it has the right of
fishing in and over the plaint lands, nearly 220 acres in
extent, out of which 107 acres are paddy lands. The Board
claimed right of prawn fishing in the plaint schedule lands
and also stated that the tenants-defendants had no such
fishing right and prayed for an injunction to restrain the
defendants from interfering with the Devaswom’s right. It
was claimed that the Devaswom had resewed the right of
fishing at the time of granting the demise and alternatively
that it was entitled to carry on prawn fishing as a right of
easement.
3. The trial court found against the plaintiff. But the
lower appellate court found that the Devaswom was entitled
to exercise the right of fishing, on the basis of a right of
easement. The matter came up before the High Court of
Kerala in S.A. No. 1208 of 1964. By judgment dated
10.4.1970, the High Court held that the grant by the
Devaswom did not confer the right on the tenants to carry on
the fishing operations in the plaint lands. The plaintiff
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was held entitled to carry on the fishing operations in the
plaint lands as well as in the thodus. The High Court
further found that in view, of the Kanam. Tenancy Ant of
1955 and the Kerala Land Reforms Act of 1963, the plaintiff
had been deprived of its right of fishing and that the same
had become vested in the tenants. The matter was remitted
to the trial court for an investigation and for passing
appropriate orders, After the remit, the trial court held
that the plaintiffs claim for fishing right in respect of
lands granted on Kanam demise was lost by reason of the
provisions of Be Kanam Tenancy Act of 1955, and had vested
in the Kanani tenants. But trial court held that the right
remained unaffected in respect of lands held on
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verumpattom and other demises. The Devaswom filed an appeal
to the lower appellate court in respect of the Kanam lands
and the defendants filed an appeal in respect of the
verumpattom lands. The Devaswom’s appeal (A.B. No.221 of
1972) was allowed and the defendants Appeal (A.S. No. 248 of
1972) was dismissed. Against the aforesaid judgment and de-
crees, the defendants-tenants filed S.A. No. 1163 of 1973
before the High Court of Kerala. The High Court held that
in view of section 3 of the Kanam Tenancy Act, the Board was
divested of the right to carry on prawn fishing, since the
right vested in the Kanam tenants. It was further found
that with regard to verumpattom tenants and tenants under
other demises the rights of the landlord stood transferred
to the tenant under the provisions of the Kerala land
Reforms Act It was finally concluded that the Devaswom was
divested of its right of fishing and that the same stood
vested in the tenants-- both kanam tenants as well as
tenants under the verumpattom and other demises. The second
appeal filed by the tenants was allowed and the plaintiff’s
suit seeking a declaration and injunction was dismissed. A
direction was given to the trial court to apportion the
collections deposited by the receiver and for appropriate
disbursement thereof for parties entitled to the said
amount. The plaintiff in the suit the Cochin Devaswom Board
filed C.M.P.No. 6759 of 1977 and prayed for certain
clarifications in the aforesaid judgment delivered in
S.A.No.1 163 of 1971 This petition was considered along
,with C.M.P.No.9751 of 1977, a similar application filed by
the tenants/defendants. The above Civil Miscellaneous
Petitions were disposed of in the following manner by under
dated 3rd August, 1977. In C.M.T. No. 6759 of 1977, the
decree was modified in the following manner:-
"We would therefore allow the Second Appeal,
and modify the decree and judgment of the
lower appellate court to this extent, that the
plaintiff’s right of fishing in respect of the
kanam lands will stand extinguished on and
from 1.4.1956, and in respect of the
verumpattom lands and other cognate tenures,
on and from 1.1.1970; and that in other
respects the decree of the lower appellate
court will stand. There will be no order as
to costs."
In C.M.P. No. 9751 of 1977, regarding the apportionment of
the collections in deposit in court, directions were given
to the following effect:
"This will be done in appropriate proceedings
in the trial court for directions for
disbursement of the collections made by the
Receiver during the time he functioned, and by
those responsible, in respect of the
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collections thereafter."
4. The Cochin Devaswom Board (Plaintiff in the suit) has
filed C.A. No. 2312 of 1977 against the judgment of the High
Court in S.A. No. 1163 of 1973 dated 7.2.1977 and subsequent
clarification order dated 3.8.1977 in C.M.P. No.6759 of
1977. The defendants/tenants have filed S.L.P. No. 4906 of
1978 against the judgment in S.A. No. 1163 of 1973 and the
order passed in C.M.P. No. 9751 of 1977 dated 3rd August,
1977. In effect, the plaintiff -- jenmi/landlord as well as
the defendants tenants have filed the Civil Appeal and the
Special Leave Petition against the judgment of the High
Court dated 7.2.1977 rendered in S.A. No. 1163 of 1973 and
the orders passed in the Civil Miscellaneous Petitions dated
3.8.1977. Both the matters were heard together.
5. We heard Shri k. Sukumaran, se-
667
nior counsel, who appeared for the Board and Shri G.
Viswanatha lyer and Shri P. Subramanian Potti, senior
advocates, who appeared for the tenants.
6.Counsel for the Board raised the following three points :-
(i) Fishing rights do not appertain to ag-
ricultural operations and so cannot be
regarded as a measure of agrarian reform. It
cannot have the protection of Article 31 A of
the Constitution. The decision of the High
Court that the Kanam tenants are entitled to
fishing rights is illegal, since the provision
in the Kanam Tenancy Act, conferring such
fishing rights on the kanam tenants is ultra
vires and violative of Article 19(1) (f) and
cannot have the, protection of Article 31 A of
the Constitution. The Kerala High Court in
the Full Bench decision reported in Narayanan
Nair v. State of Kerala (1970 K.L.T. 659) at
page 700 (paragraph 82) has struck down a
similar provision relating to "varamdars" in
the Kerala Land Reforms Act, 1963 and by par-
ity of reasoning, the similar provision in the
Kanam Tenancy Act should be held to be ultra
vires and it should have been held that the
fishing right did not vest in the Kanam
tenants.
(ii) In view of section 66(9) of the Kerala
Land Reforms Act, the right of the Devaswom
Board in the suit lands will vest under the
same Act in the Government only after the ’is-
sue of a notification’ specified therein. The
rights of the landlord will stand transferred
to the tenant or will vest in the Government
only after the determination of the annuity
and on issuing a notification as provided in
section 66(9) of the Act. This has not been
complied with and so the rights of the
Devaswolm Board regarding varam lands did not
vest in the Government or in the tenants.
Sections 72(1), 72N, 69, 56, 65, 66(9) and 68
of the Kerala Land Reforms Act were referred
to in this connection.
(iii) It is only under section 50-A(2) of the
Kerala Land Reforms Act, the fishing right in
the nilam exercised by the landlord ceased to
exist and vested in the Government or the
varamdars (tenants). Section 50-A(2) of the
Act was struck down by the Full Bench of the
Kerala High Court in the decision reported in
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Narayanan Nair vs. State of Kerala (1970
K.L.T. 659) at p.700 (para 82). It is only by
the Constitution (Twenty ninth Amendment) Act,
1972 which received the assent of the
President on 9.7.1972, the Kerala Land Reforms
(Amendment) Act, 1969 (Kerala Act 35 of 1969)
which inserted section 50A in the Kerala Land
Reforms Act was included in the Ninth
Scheduled to the Constitution of India. So,
till 9.7.1972 it is the Devaswom Board which
is entitled to the profits relating to the
fishing rights in the nilam. The varamdars
will be entitled to the said profits only
thereafter. The High Court failed to give
specific direction in this behalf even when
passing the latter order dated 3.8.1977.
7. On behalf of the tenants, the only plea made in the
S.L.P. was that the tenants are entitled to carry on
fishing operations and to do acts incidental thereto in the
canals and thodus abutting their properties. The tenants
have got rights over the entire suit lands inclusive of the
bunds and canals and it should have been so found by the
High Court. The High Court erred
668
in not adjudicating such valuable rights of the tenants.
8. We are of the view that there is no merit in the Civil
Appeal as also in the Special Leave Petition. We will now
decide the various points raised before us in seriatim.
9. The first point raised was that for the reasons given
by the High Court in Narayanan Nair’s case (supra) to strike
down section 51A of the Kerala Land Reforms Act it should
have been held that the rights of the tenants under the
Kanam Tenancy Act will not cover the fishing rights in the
nilam and to the extent the Kanam Tenancy Act of 1955
provides otherwise, it is ultra vires. This point was not
urged before the High Court. There is no discussion of the
matter in the judgment either. That apart, in a case where
the vires of a legislation is challenged, the State is a
necessary party. The State of Kerala is not made a party,
either in the suit or in any further proceeding. In these
state of affairs, we hold that Cochin Devaswom Board is not
entitled to raise this plea at this belated stage.
10. The second point urged is regarding the vesting of the
right, title and interest of the Devaswom in respect of the
suit land in the Government or in the tenants. Section
66(9) of the Kerala Land Reforms Act was pressed into
service to contend that it is only after the determination
of the annuity and issue of a notification as specified in
section 66(9) of the Act, the right, title and interest of
the Devaswom in respect of the suit lands will vest with the
Government. In this connection sections 65(1), 66(9),
72(2), 72K and 72N (1) (a) (b), (1A),(1B) and 72N(2) of
the Kerala Land Reforms Act which are relevant may be
quoted:
"65. Special Provisions relating to religious, charitable
or educational institutions of a public nature -- (1)
Notwithstanding anything contained in section 53 to 64,
where in respect of a holding the landowner or the
intermediary is a religious, charitable or educational
institution of a public nature, such institution may, by
application to the Land Board, choose whether the right ,
title and interest of the institution in respect of the
holding should be vested in- the Government in consideration
of the payment of an annuity in perpetuity by the Government
or whether it should be paid such annuity by the Government
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instead of purchase price in case the holding is purchased
by the cultivating tenants under the provisions of this Act:
Provided that no such application shall be entertained by
the Land Board on or after the date notified by the Govern-
ment under Section 72.
xxxxx xxxxx xxxxx
66. Procedure for vesting of rights of religious,
charitable or educational institutions in Government and for
determination of annuity --
xxxxx xxxxx xxxxx
(9) As soon as may be after the determination of the
annuity in respect of all holdings specified in the applica-
tion under sub-section (1) of section 65 (other than
holdings in respect of which certificates of purchase have
been issued), the Government shall issue a notification in
the Gazette declaring that the right, title and interest of
the institution in respect of such holdings shall vest in
the Government with effect from a date to be
669
specified in the notification, and all such right, title and
interest shall accordingly vest in the Government free from
all encumbrances.
xxxxx XXXXX xxxxx
72. Vesting of landlords rights in GOVernment -- (1) On a
date to be notified by the Government in this behalf in the
Gazette, all rights, title and interest of the landowners
and intermediaries in respect of holdings held by
cultivating tenants (including holders of kudiyirippus, and
holders of kariamas) entitled to fixity of tenure under
section 13 and in respect of which certificates of purchase
under sub-section (2) of section 59 have not been issued,
shall, subject to the provisions of this section, vest in
the Government free from all encumbrances created by the
landowners and intermediaries and subsisting thereon on the
said date.
xxxxx xxxxx xxxxx
72K. Issue of certificate of purchase (1) As soon as may be
after the determination of the purchase price under section
72F or the passing of an order under sub-section (3) of
section 72 MM the Land Tribunal shall issue a certificate of
purchase to the cultivating tenant, and thereupon the right,
title and interest of the landowner and the intermediaries,
if any, in respect of the holding or part thereon, to which
the certificate relates, shall vest in the cultivating
tenant free from all encumbrances created by the landowners
or the intermediaries, if any.
Explanation -- For the removal of doubts, it is hereby
declared that on the issue of the certificate of purchase,
the landowner or any intermediary shall have no right in the
land comprised in the holding, and all his rights including
rights, is any, in respect of trees reserved for his
enjoyment shall stand extinguished.
XXXXX XXXXXX XXXXXX
72N. Special provisions relating to institutions which have
opted for annuity instead of purchase price -- (1) Notwith-
standing anything contained in sections 72H and 721, where
in respect of a holding the landowner or intermediary is a
religious, charitable or educational institution of a public
nature and
(a) an application from such institution for
annuity is Pending On the date notified by the
Government under sub-section (1) of section
72; or
(b)the annuity payable to such institution has
been determined, but no notification has been
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issued under sub-section (9) of section 66,
the government shall Pay to such institution
the annuity that would have been payable to
the institution under section 67, from the
date notified under sub-section (1) of section
72, and the Government shall be entitled, sub-
ject to the provisions of section 70, to the
purchase price payable by the cultivating
tenant and, in the case of any holding, the
right, title and interest in respect of which
have not vested in the Government on the said
date, also the rent to which such institution
is entitled from the said date till its
rights, title and interest are vested in the
Government;
Provided that nothing contained in this sub-section shall
affect the power of the Land Board to decide whether an in-
stitution is a religious, charitable or educational
institution of a public nature:
provided further that nothing contained in this sub-section
shall apply in the case of an institution which is found
670
by the Land Board not to be a religious, charitable or
educational of a public nature:
(IA) An application from a religious, charitable or
educational institution of a public nature for annuity
pending or deemed to be pending on the date notified by the
Government under sub-section ( of section 72 shall, on the
date of publication of the Kerala Land Reforms (Amendment)
Act, 197 1, in the Gazette, abate, and where any such appli-
cation has been made after the date of such publication,
that application shall abate on the date on which it is re-
ceived by the Land Board.
(1B) For the removal of doubts it is hereby clarified that
the annuity payable to a religious, charitable or
educational institution of a public nature whose application
abates under subsection (IA) shall be determined by the Land
Tribunal under section 72F and that section 66 will not
apply for such determination.
(2).Notwithstanding anything contained in sections 65 to 69,
a religious, charitable or educational institution of a
public nature which has not expressed its choice for annuity
instead of purchase price before the date notified under
sub-section 72 shall not be entitled to express such choice,
and such institution shall be entitled only to the
compensation under section 72A."
11.We are of the that the right, title and interest of the
landlords and intermediaries in respect of all lands in the
state in respect of holdings held by cultivating tenants
vested in the Government free from all encumbrances as per
section 72(1) of the Act. The policy discernible from the
scheme of the Act shows that a uniform date is fixed for
"vesting" of the rights of the landlords in all cases. A
different date for vesting, regarding lands belonging to
religious institutions, is not specified or contemplated.
Section 65(1) enables the religious institutions to choose
whether their right, title and interest should be vested in
the Government in consideration of a payment of an annuity
in perpetuity or whether such annuity should be paid instead
of purchase price in case the holding is purchased by the
cultivating tenant under the provisions of the Act. Section
66(9) of the Act does not contain any non obstante clause to
negative the application of the general vesting of all
rights, interest and title of the landlord under section
72(1) of the Act. The application of section 72(1) of the
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Act is not in any way affected or whittled down by section
66(9) of the Act. The vesting under section 72(1) is not
subject to the provisions of section 66(9) of the Act at
all. That apart, section 72N(1A) and (1B) are very
significant. As per the said amended provisions by the Act
25/1971, all applications for annuity shall stand abated.
There is no question for determination under section 66 of
the Act. It is only Sec. 72F that applies to such
application. It is a determination by Land Tribunal.
Section 72 does not envisage postponement of the vesting,
due to pendency of an application under section 65(1) by a
religious or charitable institution of a public nature for
annuity in respect of the landlord’s interests in a holding
held by a cultivating tenant. The plea to the contrary is
repelled. The rights of the Devaswom Board Landlord hand
vested in the Government on the appointed day as joined in
section 72(1) of the Act.
12.The third and the last point urged on behalf of the
appellant was that the right of the varamdars relating to
the fish-
671
ing right in the nilam as provided in section 50A (2) of the
Act was declared ultra vires in Narayanan Nair’s case
(supra) and it is only by the Kerala Land Reforms
(Amendment) Act, 1969 (Kerala Act 95 of 1969) which was
included in the Ninth Schedule of the Constitution, the
right vested in the varamdars became effective and
enforceable. The said Act got assent of the President on
9.7.1972 and it is only from then onwards the right of the
varamdars came into existence. We see force in the plea of
the appellant’s counsel. The High Court has, by its order
dated 3.8.1977, directed the trial court for disbursement of
the collections made by the receiver during the time he
functioned and it is only appropriate to hold, that in giv-
ing directions in that behalf, the. trial court will bear in
mind that the rights of the varamdars regarding the fishing
rights in the nilams became effective only from 9.7.1972.We
hold accordingly.
13. Subject to the directions contained in para 12 supra,
C.A. No. 2312 of 1977 filed by the Cochin Devaswom Board
shall stand dismissed. But, in the circumstances, there
shall be no order as to costs.
14. The only point raised in the Special Leave Petition
filed by the tenants is that the High Court failed to
adjudicate and declare the rights of the tenants in the
entire suit lands inclusive of the bunds, canals etc.,
abutting their properties. We find that such a plea was not
taken up or adjudicated by the High Court when it decided
S.A. No. 1163 of 1973; nor when the Civil Miscellaneous
Petitions Nos. 6759 and 9751 of 1977 were heard and disposed
of Since the plea now raised by the petitioners in the
S.L.P. was not raised in the High Court, we hold that the
ground urged in S.L.P. cannot be entertained at this belated
stage. We dismiss the S.L.P. However, there shall be no
order as to costs.
15. The Civil Appeal (subject to directions in para 12) and
the Special Leave Petitions are dismissed, but without
costs.
673