Case Note & Summary
The dispute arose between the Cochin Devaswom Board, representing the Ayyampilly Devaswom, and tenants under different demises such as Kanam, verumpattom and other tenures over fishing rights in plaint lands nearly 220 acres in extent, out of which 107 acres were paddy lands. The Board filed Original Suit No. 118 of 1958 before the Sub Court, Ernakulam seeking a declaration of its right of fishing in and over the plaint lands and an injunction restraining the tenants from interfering with that right. The Board claimed that the right of fishing was reserved at the time of granting the demise or alternatively that it was entitled to carry on prawn fishing as a right of easement. The trial court initially found against the Board, but the lower appellate court held that the Devaswom was entitled to exercise the right of fishing on the basis of a right of easement. On second appeal, the High Court of Kerala by judgment dated 10.4.1970 in S.A. No. 1208 of 1964 held that the grant by the Devaswom did not confer fishing rights on the tenants and that the Board was entitled to carry on fishing operations in the plaint lands as well as in the thodus. However, the High Court further found that in view of the Kanam Tenancy Act, 1955 and the Kerala Land Reforms Act, 1963, the Board had been deprived of its fishing right and the same had vested in the tenants, and remitted the matter to the trial court. After remand, the trial court held that the Board's claim for fishing right in respect of lands granted on Kanam demise was lost by reason of the Kanam Tenancy Act, 1955 and had vested in the Kanam tenants, but that the right remained unaffected in respect of lands held on verumpattom and other demises. The Board's appeal against the Kanam lands was allowed and the tenants' appeal against the verumpattom lands was dismissed by the lower appellate court. The tenants then filed S.A. No. 1163 of 1973 before the High Court, which held that under 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, and that with regard to verumpattom tenants and tenants under other demises, the rights of the landlord stood transferred to the tenant under the Kerala Land Reforms Act. The High Court allowed the second appeal, dismissed the Board's suit and directed apportionment of collections deposited by the receiver. By a subsequent clarification order dated 3.8.1977, the High Court modified the decree to specify that the Board's right of fishing in respect of Kanam lands stood extinguished on and from 1.4.1956 and in respect of verumpattom lands and other cognate tenures on and from 1.1.1970. The Board filed Civil Appeal No. 2312 of 1977 and the tenants filed Special Leave Petition No. 4906 of 1978 before the Supreme Court. Before the Supreme Court, the Board raised three contentions: first, that fishing rights do not appertain to agricultural operations and the Kanam Tenancy Act provision conferring such rights on Kanam tenants is ultra vires and not protected by Article 31A; second, that under Section 66(9) of the Kerala Land Reforms Act, the rights of the Devaswom would vest in the Government only after issuance of a notification, which had not been complied with; and third, that Section 50-A(2) of the Kerala Land Reforms Act was struck down and until the Twenty-ninth Amendment Act came into force on 9.7.1972, the Board was entitled to profits from fishing rights. The tenants in their Special Leave Petition claimed they were entitled to carry on fishing operations in the canals and thodus abutting their properties. The Supreme Court held that the first contention regarding the constitutional validity of the Kanam Tenancy Act could not be raised at the belated stage because it was not urged before the High Court, there was no discussion in the judgment, and the State of Kerala, a necessary party to a challenge to the vires of legislation, was not made a party either in the suit or in any further proceeding. The Court considered the other contentions in the light of the relevant provisions of the Kerala Land Reforms Act and concluded that there was no merit in either the Civil Appeal or the Special Leave Petition. Accordingly, both the Civil Appeal and the Special Leave Petition were dismissed.
Headnote
A) Constitutional Law - Article 31A and Article 19(1)(f) - Agrarian Reform and Fishing Rights - Kanam Tenancy Act, 1955, Section 3 - The Board contended that fishing rights do not appertain to agricultural operations and cannot have the protection of Article 31A, making the Kanam Tenancy Act provision conferring fishing rights on Kanam tenants ultra vires and violative of Article 19(1)(f). The plea was not urged before the High Court and the State of Kerala was not made a party. Held that the Board was not entitled to raise this plea at a belated stage (Paras 6, 9). B) Kerala Land Reforms Act, 1963 - Vesting of Rights of Religious, Charitable or Educational Institutions - Sections 65(1), 66(9), 72, 72K, 72N - The Board argued that under Section 66(9), the right, title and interest of the Devaswom in the suit lands would vest in the Government only after determination of annuity and issue of a gazette notification, which had not been done; therefore the Devaswom retained its rights. The Supreme Court considered the relevant provisions and found no merit in this contention (Paras 6, 8, 10). C) Kerala Land Reforms Act, 1963 - Section 50-A(2) and Constitutional (Twenty-ninth Amendment) Act, 1972 - Fishing Rights in Nilam - The Board contended that Section 50-A(2) was struck down in Narayanan Nair v. State of Kerala, and until 9.7.1972 when the Kerala Land Reforms (Amendment) Act, 1969 was inserted in the Ninth Schedule, the Board was entitled to profits from fishing rights. The Supreme Court did not accept this contention and found no merit in the Civil Appeal (Paras 6, 8). D) Kerala Land Reforms Act, 1963 - Tenancy Rights over Canals and Thodus - Fishing Operations Incidental to Tenancies - The tenants claimed they were entitled to carry on fishing operations and incidental acts in canals and thodus abutting their properties and that the High Court erred in not adjudicating those rights. The Supreme Court held there was no merit in the Special Leave Petition, thereby rejecting the tenants' claim (Paras 7, 8).
Issue of Consideration
Whether the Kanam Tenancy Act provision conferring fishing rights on Kanam tenants is ultra vires and violative of Article 19(1)(f) and not protected by Article 31A; whether the right, title and interest of the Devaswom Board vested in Government or tenants only after notification under Section 66(9) of Kerala Land Reforms Act; whether Section 50-A(2) of Kerala Land Reforms Act, which was struck down, affected the date of vesting of fishing rights; whether tenants are entitled to fishing operations in canals and thodus abutting their properties
Final Decision
The Supreme Court held there was no merit in the Civil Appeal as also in the Special Leave Petition. The first contention regarding constitutional validity was rejected as belated and for non-impleadment of the State of Kerala. The other contentions regarding vesting under the Kerala Land Reforms Act and the effect of Section 50-A(2) were not accepted. The tenants' claim regarding canals and thodus was also rejected. Accordingly, both the Civil Appeal and the Special Leave Petition were dismissed, affirming the High Court's judgment that fishing rights vested in the tenants.
Law Points
- Fishing rights under Kanam Tenancy Act and Kerala Land Reforms Act vest in tenants
- constitutional challenge to tenancy legislation cannot be raised belatedly
- State is necessary party in challenge to vires of legislation
- Article 31A does not automatically protect fishing rights
- vesting under Section 66(9) requires notification
- Section 50-A(2) struck down and later protected by Ninth Schedule
