Andhra HC (Pre-Telangana)
Vaddavalli Fishermen Co-Operative ... vs Rayidi Krishna Kumari And Others on 8 June, 2000
Equivalent citations: 2000(4)ALD259, 2000(4)ALT1, AIR 2000 ANDHRA PRADESH 403, (2000) 4 ANDHLD 259
Author: J. Chelameswar
Bench: J. Chelameswar
ORDER M.S. Liberhan, C.J.
1. This order will dispose of the Writ Appeal as well as the Writ Petition, which was taken up for decision on merits with the consent of the learned Counsel for the parties.
2. The dispute involved in these matters relate to leasing of fishery rights over the Tondapi major irrigation tank situate in Tondapi Gram Panchayat in Guntur district. The Gram Panchayat claiming that the major irrigation tank in dispute vests in the Gram Panchayat auctioned the fishery rights in favour of the 6th respondent herein by operation of Section 80 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short 'the Act'). The Gram Panchayat represented by its Sarpanch initially filed the Writ Petition No.15090 of 1999 against respondents 1 to 4 seeking a declaration that the tank vests in the Gram Panchayat with a consequential relief of issuing a mandamus injucting the respondents from interfering in the rights of the Panchayat over the tank in dispute and other tanks situate within the limits of the Tondapi Gram Panchayat and to declare the contemplated action of the respondents 1 to 4 in divesting the control and regulatory power of the Gram Panchayat in regard to such rights in favour of the Fisheries Department by issuing administrative instructions as arbitrary, illegal and in violation of the provisions of the Act.
3. The contention of the writ petitioner is that in view of the provisions of Sections 80 and 81 of the Act, the Gram Panchayat was vested with the fishery rights in any water work vested in it under sub-section (1) of Section 80 of the Act subject to such restriction and control prescribed. It is also contended that Article 243-G has been introduced by the Constitution Amendment Act, 1992 to endow the Gram Panchayats with such power or authority to function as institutions of self-governance and after the amendment of Panchayat Raj Act, 1994, as a consequence of the Constitution Amendment Act, 1992, the tanks and other water resources within the limits of the Gram Panchayats vests in the Gram Panchayats and the same shall be under the control of the Gram Panchayats only. After the amendment of the Act, the fishery rights over the tanks etc., vested with other authorities shall be deemed to have been vested in the Gram Panchayats by virtue of the provisions of Section 80 of the Act. The Gram Panchayal alone has the rights over the tanks and water resources situate in the limits of Gram panchayat and the respondents 1 to 4 have no power of control and Gram Panchayat alone has the right to lease out fishery rights of such tanks or resources. The administrative instructions issued by the Government empowering the 4th respondent to exercise the rights and control over the tanks are Contrary to Sections 80 and 81 of the Act.
4. This Court while admitting the writ petition granted interim direction on 21-7-1999 not to interfere with the rights of the Gram Panchayat over the tanks within its limits pending disposal of the writ petition. Subsequently, the Vaddavalli Fishermen Co-operative Society Ltd., Vaddavalli who claims that it was registered in the year 1961 for the benefit of the fishermen community of the area and who claims that the fisheries Department is leasing the fishery rights over the tanks of that area to the society and was holding the fishery rights over the Tondapi tank was impleaded as 5th respondent. Thereafter, the Fishermen Mutually Aided Co-operative Society Ltd., Tondapi in whose favour the Gram Panchayat has granted the lease of fishery rights in the tank was impleaded as respondent No.6. On 16-2-2000, on the applications filed by the respondents 5 and 6 seeking vacation of the interim ordcrdated 21-7-1999, the learned single Judge by the order under appeal, modified the interim order to the effect that respondents 1 to 4 shall not in any manner interfere with the rights of the writ petitioner as well as the 6th respondent from carrying on fishing operations till 30-6-2000 on the ground that the Gram Panchayat has obtained upset price and leased out the fishing tank to the 6th respondent and the 6th respondent in turn had already deposited the upset price of Rs. 15,000/- and carrying on fishing operations, and directed the matter to be listed for final hearing.
5. Aggrieved by the said order, the 5th respondent filed the present Writ Appeal being WA No.224 of 2000, inter alia, claiming that pursuant to G.O. Ms. No.63, Animal Husbandary and Fisheries Department dated 7-6-1999, the lease in their favour has been renewed for a period of five years and remitted an amount of Rs.22,000/- on 17-12-1999 by way of Demand Draft and, therefore, neither the Gram Panchayat nor the 6th respondent has any right over the tank.
6. For the purpose of convenience the parties will be referred to by their status in the writ petition.
7. We have heard the learned Counsel for the parties at length.
8. It may be stated at the outset that the learned Counsel for the parties and ad idem that the tank in dispute is part of the major irrigation work and that the Fisheries Department is managing the said tank including the right to grant fishery rights in the tank.
9. Sri Chandrasekhara Rao, learned Counsel appearing for the writ petitioner has vehemently argued that in view of the provisions of Sections 80 and 81 of the Act, the Gram Panchayal alone has the right over the tanks, water-courses etc., situate within the limits of Gram Panchayat area. On the other hand, Sri E, Manohar, learned Counsel appearing for the 5th respondent-society argued that the Gram Panchayat has no authority to grant the lease and it is only the Fisheries Department, which has the right to grant the lease pursuant to the orders issued by the Government. Since the lease favour of the 5th respondent has already been renewed by the 4th respondent -Assistant Director of Fisheries, Guntur and the society paid the lease amount of Rs.22,000/- on 17-12-1999 pursuant to G.O.Ms. No.63 dated 7-6-1999, the 5th respondent is entitled to continue to enjoy the fishery rights. Sri C. V. Mohan Reddy, learned Counsel appearing for the 6th respondent submitted that the District Collector constituted a committee consisting of the Divisional Panchayat Officer, Mandal Parishad Development Officer, Sarpanch and Fishery Development Officer for the purpose of fixing the upset price for leasing out fishery rights for the year 1999-2000 and the committee fixed the upset price at Rs.15,000/-. On the application made by the 6th respondent for grant of fishery rights for the year 1999-2000, the Gram Panchayat granted lease in favour of the 6th respondent for the period from 1-7-1999 to 30-6-2000 on 16-9-1999 and 6th respondent paid the upset price of Rs. 15,000/-. Since the 6th respondent has the right to do the fishing 'operations in the tank till 30-6-2000 as per the lease granted by the Gram Panchayat, it cannot be denied to catch the fish till 30-6-2000.
10. The only question that arises for consideration is, whether the right to manage, control and to have the fishery rights in the tank in dispute vest in the Gram Panchayat or not.
11. In order to appreciate the contentions putforth by the parties, it would be expedient to notice the statutory provisions of the Act provided for vesting of water works in Gram Panchayat. Sections 80 and 81 of the Act which deals with the same, runs thus:
"80. Vesting of water works in Gram Panchayat :--(I) All Public water-courses, springs, reservoirs, tanks, cisterns, fountains, wells, stand-pipes and other water works (including those used by the public to such an extent as to give a prescriptive right to their use) whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Gram Panchayat or otherwise for the use or benefit of the public, and also any adjacent land, not being private property, appertaining thereto shall vest in the Gram Panchayat and be subject its control:
Provided that nothing in this subsection shall apply to any work which is, or is connected with, a work of irrigation or to any adjacent land appertaining to any such work.
(2) Subject to such restriction and control as may be prescribed, the Gram Panchayat shall have the fishery rights in any water work vested in it under subsection (1), the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose.
(3) The Government may, by notification, define or limit such control or may, assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting, the Gram Panchayat and giving due regard to its objections, if any.
81. Setting apart of public tanks etc., for certain purposes :--(1) (a) The Gram Panchayat may, in the interests of public health, regulate or prohibit the washing of animals or of clothes or oilier articles or fishing in any public spring, tank or well or in any public water-course or part thereof and may set apart any such place for drinking or for bathing or for washing animals or clothes or for any other specified purpose.
(b) The powers conferred by clause (a) may, in the case of any private spring, tank, well, or water-course, be exercised by the Gram Panchayat, with the consent of the owner of such place.
(c) The Gram Panchayat may, in the interests of public health, regulate or prohibit the washing of animals or of clothes or of other articles, in any private spring, tank, well or watercourse from which the public have a right to take water for drinking purposes.
(2) The executive authority on receipt of a certificate from any health or medical officer in the service of the Government, the Gram Panchayat or the Mandal Parishad or Zilla Parishad stating that the water in any well, tank, spring or other sources of water-supply to which the public have access in the village, is likely to endanger or cause the spread of any dangerous disease, shall, by public notice, prohibit the use of such water, such notice shall be served by affixing a copy of it near the source of water supply and by beat of drum stating the number of days during which such prohibition shall last. The executive authority may modify the notice or extend the period of operation thereof without the production of a further certificate."
12. From a reading of sub-section (1) of Section 80 of the Act, it is clear that - (1) all public water-courses, (2) springs, (3) reservoirs, (4) tanks, (5) cisterns, (6) fountains (7) wells, (8) stand-pipes and other water works (including those used by the public to such an extent as to give a prescriptive right to their use) and also the adjacent land, not being private property, appertaining thereto shall vest in the Gram Panchayat and be subject to its control. It is also clear that all such public water-courses, springs etc., referred to above, whether existing at the commencement of the Act or laid or erected afterwards, whether at the cost of the Gram Panchayat or otherwise for the use or benefit of the public shall vest in the Gram Panchayat. An exception, however, has been carved out in regard to the vesting of such water-courses in the Gram Panchayat by providing a proviso to the sub-section (1) to the effect that nothing in sub-section (1) shall apply to any work which is, or is connected with, a work of irrigation or to any adjacent land appertaining to any such work. A plain reading of subsection (1) and the proviso thereunder leads to the inference that any work which is an 'irrigation work' or is connected with such work or any adjacent land appertaining to any such work shall not vest in the Gram Panchayat, consequently, the Gram Panchayat cannot claim any right or control over such irrigation works nor can claim any fishery rights in such irrigation works. Conccdingly. it is admitted by the learned Counsel for the parties at the Bar that the tank in dispute is a "major irrigation tank" and constitute part and parcel of the "irrigation work" and connected with the work of irrigation. Sub-section (2) of Section 80 clearly lays down that it is only subject to such restrictions and control, as may be prescribed, the Gram Panchayat shall have the fishery rights in any water work vested in it under sub-section (1), the right to supply water from any such work for raising seed beds on payment of the prescribed fee and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose. The proviso to sub-section (1) in unambiguous terms places a restriction on the part of the Gram Panchayat to claim any control or any power of vesting in respect of any work, which is an irrigation work or is connected therewith or in respect of any adjacent land appertaining to any such work. A combined reading of sub-section (1), the proviso thereunder and sub-section (2) Section 80 of the Act makes it abundantly clear that the Gram Panchayat has been vested with the fishery rights only in respect of such watercourses, tanks etc., mentioned in subsection (1) and which have been specifically vested in the Gram Panchayat and no fishery rights have been vested in respect of irrigation works which have been specifically excluded under the proviso. Therefore, the Gram Panchayat, which has no power and control in the irrigation tank in question, which is not vested in it by law, cannot claim any fishery rights in it.
13. Mr. Chandrasekhara Rao sought to advance that the provision "the Gram Panchayat shall have the fishery rights in any water work vested in it under sub-
section (1) "mentioned in sub-section (2) includes all the water works including the 'irrigation works' also. We are afraid we cannot subscribe to the said contention. The proviso to sub-section (1) in unambiguous terms restrict the Gram Panchayat to have any authority or control over any irrigation work or any work which is connected therewith and such irrigation works have been specifically excluded from vesting in the Gram Panchayat. In the absence of possibility of any two opinions or the possibility of attaching a different meaning or interpretation to the proviso, we are not inclined to accede to the contention of the learned Counsel for the petitioner. Subsection (2) clearly says that the fishery rights etc., vested in the Gram Panchayat in respect of tanks etc., mentioned in subsection (I) are subject to such restrictions and control prescribed. A plain reading of sub-section (2) and the proviso to subsection (1) left with no other inference except that the tank in dispute which is a major irrigation tank along with the adjacent land to it has been taken as an exception from vesting it on the Gram Panchayat nor there can be any statutory deemed vesting of rights on the Gram Panchayat as contended by the learned Counsel for the petitioner. Sub-section (2) makes it very clear thai the fishery rights which have been vested in the Gram Panchayat relate only to those water works which are vested on the Gram Panchayat by operation of sub-section (1). The fishery rights in the tanks relating to irrigation works do not vest in the Gram Panchayat and such rights have never been intended to be vested on the Gram Panchayat by operation of any statutory or delegatory power.
14. No doubt, the Constitution Amendment Act, 1992 has been brought about, consequent to which the new Panchayat Raj Act, 1994 came into force, with the laudable object to endow the Panchayat Raj institutions with more powers to function as institutions of self-governance by enlarging the financial resources and increase their income for better governance and to strengthen them financially. Conferring of fishery rights in the Gram Panchayals in respect of tanks, watercourses etc., situate within the limits of Gram Panchayat may be one such thing. But, merely because the object of the Constitution Amendment Act and the Panchayat Raj Act is to confer more powers on the Gram Panchayats, it cannot be said that the proviso to sub-section (1) which clearly places a restriction on the Gram Panchayat to have any control or authority in respect of any 'irrigation work or any work connected therewith' can be interpreted differently and contrary (o the intent of the Act nor the object can be taken note ofby this Court as an aid to give a different interpretation to the proviso to sub-section (1) or to sub-section (2) of the Act.
15. The contention of the learned Counsel for the petitioner that the Gram Panchayat has not been consulted before giving notification divesting the control and regulatory power over the tank in question to Fisheries Department has also no substance. The consultation with the Gram Panchayat as provided in sub-section (3) by, the Government before issuing any) notification defining or limiting any control or assuming the administration of any public source of water supply and public land; adjacent and appertaining thereto would arise only in respect of such water works which have been vested on the Gram Panchayat under sub-section (1) of Section 80 of the Act and not in respect of the Irrigation works which were never intended to be vested by the Act in the Gram Panchayat. It is only in respect of such works, which have been specifically vested by virtue of the operation of sub-section (1) of Section 80 of the Act on the Gram Panchayat, the Government before issuing any notification defining or limiting the control or the authority of the Gram Panchayat over such tanks has to consult the Gram Panchayat and thereafterwards only it has io issue notification giving due regard to its objections and in such cases only giving of any notice would arise.
16. To be fair to the learned Counsel for the petitioner, Section 81 quoted above has no consequence on the operation of Section 80. It ordains only- setting apart of public tanks etc., for certain purposes. Under this section, the Gram Panchayat may in the interest of public health, regulate or prohibit the washing of animals or of clothes or other articles or fishing in any public water-course or part thereof and may set apart any such places for drinking or for bathing or for washing animals or clothes or for any other specified purpose. This power can be exercised not only with respect to the water tanks vested in the Gram Panchayat but even in respect of private springs, tanks, wells, water sources of course with the consent of the owner of such place. Under sub-section (2) of Section 81 the Gram Panchayat has also the power to prohibit the use of water in any well, tank, spring or any other sources of water supply to which the public have access in the area where there is likelihood of endanger or cause the spread of any dangerous disease, for a specified period on the certificate issued by a Medical Officer and can extend the period of prohibition from time to time. Therefore, it is clear that Section 81 entirely deals with a different situation and it has no consequence on the question of Section 80 so as to claim any right by the Gram Panchayat in respect of an irrigation work which has been specifically excluded from the purview of Gram Panchayat by the operation of the proviso to sub-section (1) of Section 80.
17. In view of the fact that on the question of admitted facts we have come to the conclusion that "Tondapi major irrigation lank" connected with the irrigation work do not vest in the Gram Panchayat by operation of the provisions of Section 80 of the Act which provides deeming provision of vesting only in respect of certain water works in the Gram Panchayat and specifically excludes vesting of any right in respect of any irrigation work or any work connected therewith, no Writ can be issued declaring vesting of the tank in dispute in the Gram Panchayat. Since the tank itself docs not vest in the Gram Panchayat, as a necessary corollary, no fishery rights vest in the Gram Panchayat. Further, as ordained by sub-section (2), only in respect of the water works, which have been statutorily vested in the Gram Panchayat, as per subsection (I) of Section 80, the Gram Panchayat was conferred with the fishery rights and in respect of no other tank fishery rights have been vested in the Gram Panchayat. We, therefore, find no merit in the Writ Petition. The Writ Petition and the Writ Appeal are, therefore liable to be dismissed.
18. It is conceded at the Bar that 6th respondent has already deposited the upset price of Rs. 15,000/- on 15-9-1999 fixed by the Committee constituted by the District Collector and consequent thereof, it has been granted fishery rights by the Gram Panchayat on 16-9-1999 for the period from 1-7-1999 to 30-6-2000. In contrast, the 5th respondent is neither a successful bidder nor can be said to be holding any lease for the year in dispute. The so-called renewal for a period of five years alleged to have been granted by the Fisheries Department pursuant to G.O. Ms. No.63 dated 7-6-1999 at the rate of Rs.22,000/-has not been materialised and in fact the 5th respondent claims to have deposited Rs.22,000/- only on 17-12-1999 i.e., after three months the 6th respondent deposited !he upset price fixed by the Committee constituted by the District Collector. Further in the Committee constituted by the District Collector for fixation of upset price the Officer of the Fisheries Department is also involved. Therefore, we are of the view That the balance of convenience lies in favour of the 6th respondent to allow it to do the fishing operations in the tank in dispute till the expiry of lease on 30-6-2000.
19. Before parting with the judgment, it is to be noticed that the tank in question being a public property is being given on lease not by conducting any public auction but by fixing the lease amount's by the Department themselves. It is well established by the catena of judgments of the Hon'ble Supreme Court that leasehold rights of any public largesse shall be conducted in an open public auction in accordance with the law and the rules provided therefor and an attempt should be made to get the maximum revenue for the Government. In the instant case, white the Fisheries Department has fixed the amount at Rs.22,000/- in favour of 5th respondent, the Gram Panchayat granted the leasehold rights in favour of 6th respondent for Rs. 15,000/-. Further, the two societies claiming to have been working for the benefit of the fishermen community are claiming the benefits provided by the Government in the matter of grant of fishery leasehold rights in the tank. Even if the property is to be given on lease to any of the societies, it should not be given at the expense of the public exchequer. Therefore, it is better the leasehold rights in respect of the tank in question are auctioned in an open public auction. We have no manner of doubt that the Government will look into the matter afresh and grant tease in accordance with the rules in an open auction and respondents 5 and 6 and others be given the liberty to participate in the same.
20. For the reasons aforesaid, both the Writ Petition and the Writ Appeal are dismissed. The 6th respondent will be at liberty to do the fishing operations till 30-6-2000. The respondents 1 to 5 shall not in any manner interfere with the leasehold right of the 6th respondent in the tank in dispute til! the expiry of its lease on 30-6-2000. The amount of Rs.15.000/-depositcd by the 6th respondent in favour of the Gram Panchayat, Tondapi be transferred to the head of account of the State Government. No order as to costs.