COCHIN DEVASWAM BOARD versus CAPTAIN E.M. GEORGE AND ORS.

Citation: [1995] 1 S.C.R. 328 · Decided: 17-01-1995 · Supreme Court of India · Bench: S.P. BHARUCHA · Disposal: Dismissed

Judgment (excerpt)

A 
COCHIN DEVASWAM BOARD 
v. 
CAPTAIN E.M. GEORGE AND ORS. 
ii 
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 
c 
66(9)-Fishing rights ofveramdars in nilam-Enforceable w.e.f. 9-7-1972, the 
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 
E 
was entitled to exercise the right of fishing, on the basis of a right of 
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 
F operations in the plaint lands as well as in the thodus; that in view of the 
,,,. 
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, 
G 
the trial court held that the plaintiff's claim for fishing right in respect of 
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 
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COCHIN DEVASWAM BD. v. CAP. E.M. GEORGE 
329 
defendants' appeal was dismissed. 
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 
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 
filed the Civil Appeal and Special Leave Petition against the judgment of 
the High Court and the orders passed on Civil Miscellaneous Petitions. 
A 
B 
c 
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 

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