Holding

Under Section 72(1) of the Kerala Land Reforms Act, the landlord’s title, including fishing rights, vested in the Government on the appointed date, and Section 66(9) does not alter that vesting; the varamdars’ fishing rights became effective only after the 1972 amendment, leading to dismissal of the Board’s appeal.

Summary

The Cochin Devaswom Board sued tenants (including Captain E.M. George) claiming exclusive fishing and prawn‑fishing rights over lands granted under various demises, asserting a right of easement. The High Court had held that the Board’s rights were divested by the Kanam Tenancy Act and the Kerala Land Reforms Act, vesting them in the tenants. On appeal, the Supreme Court examined whether the landlord’s rights vested in the Government under Section 72(1) of the Kerala Land Reforms Act, whether Section 66(9) could postpone that vesting, and when the fishing rights of varamdars became effective under the 1969 amendment. The Court held that Section 72(1) effects a uniform vesting of all landlord rights in the Government, unaffected by Section 66(9), and that the varamdars’ fishing rights only arose after the 1972 constitutional amendment. Consequently, the Board’s claim failed, the civil appeal and the Special Leave Petition were dismissed without costs.

Issues considered

The effect of Section 72(1) of the Kerala Land Reforms Act on the Devaswom Board’s fishing rights
Whether Section 66(9) of the Kerala Land Reforms Act postpones vesting of landlord rights pending annuity notification
The validity and operative date of Section 50A(2) granting fishing rights to varamdars under the 1969 amendment
Whether the State of Kerala needed to be a party to a challenge to the Kanam Tenancy Act
The entitlement of tenants to fishing rights over canals, bunds and adjoining waters

Legislation cited

Constitution (Twenty-ninth Amendment) Act, 1972
Kanam Tenancy Act, 1955s. 3
Kerala Land Reforms Act, 1963s. 65(1), s. 66(9), s. 72(1), s. 72A, s. 72F, s. 72K, s. 72N
Kerala Land Reforms (Amendment) Act, 1969s. 50A(2)

Subjects

Land reformVesting of landlord rightsFishing rightsKanam Tenancy ActKerala Land Reforms ActSection 72(1)Ultra viresSpecial Leave Petition

Judgment

A COCHIN DEVASWAM BOARD
v.
ii
CAPTAIN E.M. GEORGE AND ORS.

JANUARY 17, 1995

B
[J.S. VERMA, S.P. BHARUCHA AND K.S. PARIPOORNAN, JJ.)

Kera/a Land Refonns Act, 196~Section 72(1)-Vesting of all rights, ....
interests and title of landlord u/s 72(1)-Not subject to provisions of Section
66(9)-Fishing rights ofveramdars in nilam-Enforceable w.e.f. 9-7-1972, the
c date on which the Act was given assest by the President of India.
..
The appellant Board filed a suit against the tenants under different
demises kanam, verumpattom etc. etc., praying for a declaration that it
had the right of frishing in and over the plaint lands while claiming right
D of prawn fishing in the plaint schedule lands and prayed for an injunction
to restrain the.defendants from interfering with the Devaswom's 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. The suit was
dismissed but in appeal, the lower appellate court found that the Board
was entitled to exercise the right of fishing, on the basis of a right of
E easement.

In second Appeal, the High Court held that the grant by the Board
did not confer the right on the tenants to carry on the fishing operations
in the plaint lands; that the Board was entitled to carry on the fishing
operations in the plaint lands as well as in the thodus; that in view of the ,,,.
F
Kanam Tenancy Act of 1955 and the Kerala Land Reforms Act of 1963, the
Board 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 remand,
the trial court held that the plaintiff's claim for fishing right in respect of
G lands granted on Kanam devise was lost by reason of the provisions of the
Kanam Tenancy Act of 1955, and had vested in the Kanam tenants but the
-,..
right remained unaffected in respect of lands held on verumpattom and "--'
other demises. The Board filed an appeal to the lower appellate court in
respect of the Kanam lands and the defendants filed an appeal in respect
H of the verumpattom lands. The Board's appeal was allowed and the
328
--<!

COCHIN DEVASWAM BD. v. CAP. E.M. GEORGE 329

defendants' appeal was dismissed. A
The Second Appeal filed by the defendants tenants was allowed and
the plaintifl's suit seeking a declaration and injunction was dismissed. 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; that with regard to verum11attom tenant and B
tenants under other demises the rights of the landlord stood transferred
to the tenant under the provisions of the Kerala Land Reforms Act and
therefore, the Board was divested of its right of fishing and the same stood
vested in the tenants. The plaintiff landlords as well as tenants filed certain
clarification applications. The appellant Board and the defendants tenants c
filed the Civil Appeal and Special Leave Petition against the judgment of
the High Court and the orders passed on Civil Miscellaneous Petitions.

The appellant alleged that fishing rights do not appertain to agricul-
tural operations and so cannot be regarded as a measure of agrarian
reform, so it cannot have the protection of Article 31A of the Constitution D
and the provision in the Kanam Tenancy Act, conferring such fishing
rights should be held to be ultra vires and it should be held that the fishing
right did not vest in the Kanam tenants; that in view of Section 66(9) of
the Kerala Land Reforms Act, the right of the Board in the suit lands will
vest in the Government only after the 'issue of a notification' specified E
therein and this had not been complied with; that it was only u/s 50-A(2)
of the Kerala Land Reforms Act, the fishing right in the nilam execised by
the landlord ceased to exist and vested in the Government or the varam-
dars tenants, so till 9.7.1972 when the Kerala Land Reforms (Amendment)
Act, 1969 which inserted section 50A was included in the Ninth Schedule
to the Constitution of India, it was the Board which was entitled to the F
profits relating to the fishing rights in the nilam and the veramdars will
be entitled to the said profits only thereafter.

The tenants pleaded that they were entitled to carry on fishing
operations and to do acts incidental thereto in the canal and thodus G
abutting their properties and the High Court erred in not adjudicating
such valuable rights of the tenants.

Dismissing the appeal and the Special Leave Petition, this Court

HELD : 1.1 The right, title and interest of the landlords and inter- H
330 SUPREME COURT REPORTS [1995) 1 S.C.R.

A . mediaries in respect of all lands in the State in respect of holdings held
by cultivating tenants vested in the Government free from all encumbran-
ces as per section 72(1) of the Kerala Land Reforms 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
B 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 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.
C 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 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
D the provisions of section 66(9) of the Act at all. As per sections 72N(lA)
& (lB), 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 institu-
E tion of a public nature for annuity in respect of the landlord's interests in
a holding by a cultivating tenant. The rights of the Devaswom Board-
"landlord had vested in the Government on the appointed day as enjoined
in section 72(1) of the Act. [338-H, 339-A-E]

F 1.2. The right of the veramdars relating to the fishing right in the
nilam as provided in section 50A(2) of the Kerala Land Reforms Act was
declared ultra vires in Narayanan Nair's case and it is only by the Kerala
Land Reforms (Amendment) Act, 1969 which was included in the Ninth
Schedule of the Constitution, the right vested in the veramdars became
effective and enforceable and that Act got assent of the President on
G 9.7.1972 and it was only from then onw?.rds the right of the veramdars
·came into existence. [339-H-F]

Narayanan Nair v. State of Kerala, (1970) KLT 659 (FB), referred to.

H 2. In a case where. the vires of a legislation is challenged, the State
COCHIN DEVASWAM BD. v. CAP. E.M. GEORGE [PARIPOORNAN, J.) 331

is a necessary party. In the instant case while challenging the validity of A
the Kanam Tenancy Act of 1955, the State of Kerala was not made a party, .
either in the suit or in any further proceeding and this plea was not urged
before the High Court and therefore, also the appellant Board was not
entitled to raise this plea at this belated stage. [335-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2312 of B
1977 etc. etc.

From the Judgment and Order dated the 7th February, 1977 of the
High Court of Kerala of Ernakulam in S.A. No. 1163 of 1973.

K. Sukumaran, V.B. Saharya and C.K. Sasi for the Appellant. c
G.V. Iyer, P.S. Poti, Ms. Malini Poduval and S: Balakrishnan for the
Respondents.

The Judgment of the Court was delivered by
D
.... PARIPOORNAN, J. 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 appeal, defendants 2, 4, 6,
11 legal representatives of the 8th defendant and the legal representative E
of the 1st defendant in the suit are the "tenants" of the suit property. They
are the petitioners in S.L.P. No.4906of1978. 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. 188/58, Sub Court, Ernakulam had a chequered
career. It was filed by the Board, representing one of its institutions or units F
...
_
- the Ayyampilly Deva..<;wom (hereinafter called 'Devaswom') against the
tenants under different demises - Kanam, verumpattom 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 prawan fishing in the plaint
schedule lands and also stated that the tenants-defendants had no such G
fishing right and prayed for an injunction to restrain the defend~ts from
interfering _with the Devaswom's right. It was claimed that the Devaswom
had reserved 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. .H
332 SUPREME COURT REPORTS (1995] 1 S.C.R.

A 3. The trial court found against the plaintiff. But the lower appellate
cour·t 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 lOA.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
B plaintiff waa htter 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 KanamJ.:enancy Act 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. Th~ matter was remitted to the
c 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 the Kanam Tenancy Act of 1955, and had vested in the
Kanam tenants. But the trial court held that the right remained unaffected
in respect of lands held on verumpattom and other demises. The Devas-
D
worn 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 (AB. No. 221 of 1972) was allowed and the
defendants'appeal (A.S. No. 248 of 1972) was dismissed. Against the
aforesaid judgment and decrees, the defendants-tenants filed S.A. No. 1163
E 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
F 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 plaintiffs suit seeking a declaration and
injunction was dismissed. A direction was gieven to the trial court to
G 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. 1163of1973. This petition was considered along with
H
i J

COCHINDEVASWAMBD.v. CAP. E.M.GIWRGE(PARIPOORNAN.J.J 333

C.M ..P. No. 9751 of 1977, a similar application filed by the tenants/defen- A
dants. The above Civil Miscellaneous Petitions were disposed of in the
·"< following manner, by order dated 3rd August, 1977. In C.M.P. No. 6759 of
1977, the decree was modified in the follwing manner :-

"We would therefore allow the Second Appeal, and modify the
decree and judgment of the lower appellate court to this extent, B
that the plaintiffs right of fishing in respect of the kanam lands
will stand extinguished on and from 1.4.1956, and in respect of the
7 verumpattom lands and other cognate tenures, on and from
1.1.1970; and that in other respects the
r
decree of the lower appel-
late court will stand. There will be no order as to costs." c
In C.M.P. No. 9751of1977, regarding the apportionment of the collections
in deposit in court, directions were given to the follwing effect :

"This will be done in appropriate proceedings in the trial court for
directions for disbursement of the collections made by the D
Receiver during the time he functioned, and by those responsible,
in respect of the collections thereafter."

4. The Cochin Devaswam 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 the subsequent clarification order dated E
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. 9751of1977 dated 3rd August, 1977. In
effect, the plaintiff - jenmi/landlord as well as the defendants-tenants had
filed the Civil Appeal and the Special Leave Petition against the judgment
~
F
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, senior counsel, who appeared for
the Board and Shri G. Viswanatha Iyer and Shri P. Subramonian Poti, G
senior Advocates, who appeared for the tenants.
...., 6. Counsel for the Board raised the follwing three poitns :-

(i) Fishing rights o not appertain to agricultural operations and so
cannot be regarded as a measure of agrarian reform. It cannot H
334 SUPREME COURT REPORTS (1995) 1 S.C.R.

A have the protection of Acticle 31A 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 anc.l violative of Article 19(1)(f) anc.l cannot have the
protection of Article 31A of the Constitution. The Kerala High
B Court in the Full Bench decision reported in Narayanan Nair v.
State of Kera/a, (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 parity of reasoning, the
similar provision in the Kanam Tenancy Act should be held to
c 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 Lands Reforms Act, the
right of the Devaswom Board in the suit lands will vest under
the same Act in the Government only after the 'issue of a
D notifiaction' 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 ~th and so the rights of the Devaswom Board
E 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 Aet were referred to in this connection.

(iii) It is only under section 50-A(2) of the Kerala Land Reforms Act,
F 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 Narayanan
Nair v. State of Kera/a, (1970) K.L.T. 659 at p. 700 (para 82). It
is only by the Constitution (Twenty-ninth Amendment) Act, 1972
G which received the assent of the President on 9.7.1972, the Kerala
Land Refoms (Amendment) Act, 1969 (Kerala Act 35 of 1969)
which inserted section 50A in the Kerala Land Reforms Act was
· included in the Ninth S.chedule to the Constituiton of India. So,
till 9.7.1972 it is the Devaswom Board which is entitled to the
H profits relating to the fishing rights in the nilam. The varamdars
coc1-11:-; DEVASWAM BO. I'. CAP. E.M. GEORGE [PARIPOORNAN. J.I 335

will be entitled to the ~aid profits only thereafter. The High Court A
failed to gi\·e specific direction in this behalf even when passing
the latter order dated 3.~. I lJ77.

7. On behalf of the tenants. the only pka made in the S.L.P. was that
the tenants arc entitled to carry un fishing operations and to do acts
incidental thereto in the canals and t hod us abutting their properties. The B
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 in not adjudicating such valu..tble rights of the ten'1nts.

8. We are of the view that there is no merit in the Civil Appeal as
also in the Special Leave Petition. We wili n<•w decide the various points
c
raised before us in seriatim.

9. The first point raised was that for the reasons given by the High
Court in l1/arayana11 Nair's case (~upra) to ,,triL.: down scction 51A of the
Kerala Land Reforms Act. it should have b;:en held that the rights of the D
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 E
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 the 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 F
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 Dcvaswom in respect of the suit lands
will vest with the Government. In this connection sections 65(1), 66(9), G
72(1), 72K and 72N(l)(a)(b), (lA), (lB) and 72N(2) of the Kerala Land
Reforms Act which are relevant may be quoted :

"65. Special provisions relating to religious, charitable or educa-
tional institutions of a public nature - (1) Notwithstanding any-
thing contained in sections 53 to 64, where in respect of a holding H
336 SUPREME COURT REPORTS (1995) 1 S.C.R.

A the l~mdowner or the intermediary is a religious, chwitable or
educational institution of a public nature, such institution may, by
application to the Land Board, choose whether the 1ight, title and
interest of the institution in respect of the holding should be vested
in the Govemment in consideration of the payment of an annuity
in prepetuity by the Government of whether it should be paid such
B annuity by the Government 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 Government under
c Section 72.

xxxx xxxx xxxx

66. Procedure for vesting of rights of religious, charitable or
D education institutions in Government and for determination of
annuity -

xxxx xxxx xxxx

(9) As soon as may be after the detennination of the annuity in
E respect of all holdings specified in the application under sub-sec-
tion (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 dedaring that thr · ight, title and
interest of the institution in respect of such holdings shall vest in the
Goventment with effect from a date to be specified in the notifica-
F tion, and all such right, title and interest shall accordingly vest in
the Governemnt free from all encumbrances.

xxxx xxxxx xxxxx
72. Vesting of landlords' rights in Government - (1) On a date
G to be notified by the Government in this behlf in the Gazette, all
rights, title and interest of the landowners and intermediaries in
respect of holdings held by cultivating tenants (including holders
of kudiyiruppus and holders of kariamas) entitled to fixity of tenure
under section 13 and in respect of which certificates of purchase
H under sub-section (2) of section 59 have not been issued, shall,
COCHIN DEVASWAM BD.1•. CAP. E.M. GEORGE !PARIPOOR.'\/A:'\.J.j 337

subject to the provisions of. this section, vest in the Government A
free from all cncumhram:es created by the landowners and inter-
mediaries and subsisting thereon on the said date.

xxxx xxxx xxxx

72K. Issue of certificate of purchase - (1) As soon as may be after B
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
c
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 ic;rne of the certificate of purchase, the landowner or D
any intermediar_>' shall have no right in the land comprised in the
holding, and all his rights including rights, if any, in respect of trees
reserved for his enjoyment shall stand extinguished.

xxxx xxxx
E
72N. Special provisions relating to institutions which have opted
for annuity instead of purchases price - (1) Notwithstanding
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 -
F
(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 deter-
mined, but no notiftaction has been issued under sub-section G
(9) of section 66, the Government shall pay to such institution
the annuity that would have been payable to the institution
under sectfon 67, from the date notified under sub-section (1)
of section 72, and the Government shall be entitled, subject
to the provisions pf section 70, to the purchase price payble H
r .-
'

338 SUPREME COURT REPORTS [1995] 1 S.C.R.

A hy the cultivating tenant and, in the case of any holding, the
right, title and interest in respect of which have not vested in ,A
the Government on Liu:: said d:ite. also the rent lo \vhich such
institution is entitled from the said date till its rights. title and
interest are vested in the Government;

B Provided that nothing contained in this sub- section shall affect
the power of the Land Board to decide whether an institution 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 by the Land
c Board not to be a religious, charitable or educational institution
of a public nature :

(lA) an application from a religious, charitable or educational .
institution of a public nature for annuity pending or deemed to be
D pending on the date notified by the Govemment under sub-section
(I) of section 72 shall, on the date of publication of the Ker ala
Land Reforms (Amendment) Act, 1971, in the Gazette, abate, and
where any such application has been made after the date of such
publication, that application shall abate on the date on which it is
received hy the Land Board.
E
(lB) 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 sub-section (lA)
shall be determined by the Land Tribunal under Section 72F and ~

F that section 66 will not apply for such determination.

(2) Notwithstanding anything contained in sections 65 to 69, a
religiou3, 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 (1) of section 72
u
shall not be entitled to express such choice, and such institution
shall be entitled only to the compensation under section 72A."
r
,.. ........
11. We are of the view that the right, title and interest of the
landlords and intermediaries in respect of all lands in the State in respect
H of holdings held by qiltivating tenants vested in the Government free from
1I

COCHINDEVASWAMBD.v. CAP. E.M. GEORGE[PARIPOORNAN,J.] 339

all encumbrances. as per section 72(1) of the Act. The policy discernible A
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 Governmnt B
in consideration of a payment of an annuity in prepetuity or whether such
annuity should be paid instead of purchase price in case the holding is
purchased by the cultivating tenant under the provision 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) C
of the 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 (lB) 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 deter- D
ruination 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 applica-
tion 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 E
the Devaswom Board-landlord had vested in the Government on the
appointed day as enjoined 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 fishing right in the nilam as F
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 Refoms (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 G
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 giving directions in
that behalf, the trial court will bear in mind that the rights of the varamdars H
340 SUPREME COURT REPORTS [1995) 1 S.C.R.

A regarding fishing rights in the nilams bec_ame 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.
B
14. The only print 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 fmd that such a plea was not taken up or
adjudicated by the High Court when it decided S.A. No. 1163 of 1973; nor
C 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 grounds urged
in the 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.
D
15. The Civil Appeal (subject to directions in para 12) and the
Special leave Petition are dismissed, but without costs.

RA. Appeal and petition dismissed.