Madras High Court
Tirunelveli District Public Works ... vs R.Esakkiammal on 2 January, 2019
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 26.09.018
Pronounced on : 02.01.2019
CORAM :
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
CRP(MD)No.1659 of 2018 (NPD)
and
CMP(MD)No.7270 of 2018
Tirunelveli District Public Works Department,
(Waer Resources and Irrigation),
through its Junior Engineer,
Mela Ambasamudram Village,
Ambasamudram Taluk,
Tirunelveli District. ... Petitioner
Vs.
R.Esakkiammal ... Respondents
Prayer : This Civil Revision Petition is filed under Section 115 of
the Civil Procedure Code, to set aside the fair and decreetal order
dated 08.02.2016 passed in CMA No.10 of 2013 on the file of the
Subordinate Judge, Ambasamudram by partly allowing the fair and
decreetal order dated 01.08.2013 in I.A No.413 of 2013 in O.S No.
170 of 2013 on the file of the learned Additional District Munsif,
Ambasmudram.
http://www.judis.nic.in
2
For Petitioner : Mr.Karuppasamy,
Government Advocate
For Respondent : Mr.C.Saravana Kumar
ORDER
The respondent in this civil revision petition is the plaintiff in O.S No.170 of 2013 on the file of the District Munsif Court, Ambasamudram. The plaintiff has sought the relief of permanent injunction restraining the revision petitioners herein from interfering with her fishery rights in respect of the suit pond. She also filed I.A No.417 of 2013 seeking temporary injunction. The learned Trial Munsif by order dated 01.08.2013 allowed the I.A as prayed for. Aggrieved by the same, the revision petitioners filed CMA No.10 of 2013 before the Sub Court, Ambasamudram. The lower appellate court by order dated 08.02.2016 partly allowed the appeal and after setting aside the order passed by the court below directed that the plaintiff as well as the defendant would be entitled to equal share from the income obtained through the public auction or lease of the suit pond's fishing right. Questioning the same, this civil revision petition has been filed.
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2.Heard the learned counsel on either side.
3.Both the courts below appear to have been swayed by the judgment and decree dated 14.06.1996 passed in O.S No.124 of 1992 on the file of the District Munsif Court, Ambasamudram. The said suit was instituted by the respondent and two others against the Government of Tamil Nadu and a declaratory as well as an injunction decree had been passed therein. The learned Trial Munsif appears to have proceeded on the premise that in as much as the said decree has become final, the Government is bound by the same. The first appellate court interfered only to a limited extent because it gave a finding of fact that the plaintiff herein would be entitled only to 50% of the fishing right and not 100%.
4.The suit property is a pond. It is beyond dispute that it belongs to Public Works Department of the Government of Tamil Nadu. The Government has issued G.O Ms.No.16, Public Works Department (W2) dated 14.01.2011 banning the private auction of fishing rights within the ponds belonging to Public Works Department. The respondent has not challenged the validity of the said Government Order.
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5.Section 2 of the Tamil Nadu Land Encroachment Act, 1905 declares the water bodies to be the property of the Government of Tamil Nadu. Of course, certain exceptions have been carved out. One such exception is set out in Section 2(1) (e) of the said Act. It refers to the property of any other person holding land under grant from the Government otherwise than by way of licence. Section 2 of the Act reads as under :
“2.Right of property in public roads, etc, waters and lands.- (1)All public roads, streets, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark and of rivers, streams, nalas, lakes and tanks and all backwaters, canals and water – courses and all standing and flowing water, and all lands, wherever situated, save in so far as the same are the property-
(a) of any zamindar, poligar, mittadar, jagirdar, shrotriemdar or inamdar or any person aiming through or holding under any of them or
(b) of any person paying kist, kattubadi, jodi, poruppu or quit-rent to any of the aforesaid persons or.
(c)of any person holding under ryotwari http://www.judis.nic.in 5 tenure, including that of a janmi in the Gudalur taluk of the Nilgiri District and in the transferred territory or in any way subject to the payment of land- revenue direct to Government, or
(d) of any other registered holder of land in proprietary right, or
(e)of any other person holding land under grant from the Government otherwise than by way of licence, and as to lands, save also in so far as they are temple site or owned as house-site or backyard, are and are hereby declared to be the property of Government except as may be otherwise provided by any law for the time being in force subject always to all rights of way and other public rights and to the natural and easement right of other land-
owners, and to all customary rights legally subsisting (2)All public roads and streets, vested in any local authority shall, for the purposes of this Act, be deemed to be the property of the Government.” The said provision employs distinct terminology to refer to lands as well as water bodies. Section 2(1)(e) of the Act refers only to holding of land under grant from the Government otherwise than by way of licence. It does not refer to any water body Therefore, http://www.judis.nic.in 6 the effect of Section 2 of the said Act is that the tank in question is a property of the Government.
6.It was held by the Hon'ble Division Bench of this Court in the decision reported in (1960) 1 MLJ 276 (D.B) (State of Madras vs. Kamakshiapillai) that the title to a fishery right flows from the right to the soil. The right to fishery in a tank, the bed of which is not owned by the claimants can be claimed and enjoyed only as against the owner of the bed of the tank. It cannot hang in the air. The person who can object to the said claim will be only the owner of the bed of the tank who is also entitled to the waters in the tank and also the produce that accrues to him in the tank unless somebody else has perfected his right thereto by any prescriptive law of easements. The general principle is that fisheries are in their nature mere profits of the soil over which the water flows, and that title to a fishery arises from the right to the soil. Right to fishery has always been held to be immovable property.
7.In view of the aforesaid decision of the Hon'ble Division Bench, one can maintain an independent right to fishery only as http://www.judis.nic.in 7 an easementary right. In the very nature of things, an easementary right can be claimed only to support a dominant tenement In this case, there is no dominant tenement to support. Hence, an easementary claim obviously cannot lie.
8.The case of the plaintiff is that in the colonial pre- independent days an exclusive licence was granted in favour of the predecessors in title and that the settlement records duly reflected the same. It is further claimed that the predecessors have been remitting kist to the Government (Meenpasi Vari). It is further contended that this right has been the subject matter of alienations and bequest over a period of time. More than anything else, a declaratory decree had already been passed in favour of the respondent herein.
8.I am unable to accept the contentions advanced by the learned counsel appearing for the plaintiff. As held in Srinatha Roy vs. Dinabandhu Sen (AIR 1914 PC 48), the evidence of a Government grant of an exclusive fishery ought to be conclusive and clear. In this case, no such grant has been produced. Even http://www.judis.nic.in 8 in the earlier suit proceedings, what was produced was only a copy of the settlement register. On that basis, a court could not have presumed that the grant was lost. The Hon'ble Supreme Court in Manohar Das vs. Charu Chandra Pal (AIR 1955 SC 228) held as follows :
“7.The circumstances and conditions under which a presumption of lost grant could be made are well settled. When a person was found in possession and enjoyment of land for a considerable period of time under an assertion of title without challenge, Courts in England were inclined to ascribe a legal origin to such possession, and when on the facts a title by prescription could not be sustained, it was held that a presumption could be made that the possession was referable to a grant by the owner entitled to the land, but that such grant had been lost. It was a presumption made for securing ancient and continued possession, which could not otherwise be reasonably accounted for. But it was not a presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went against it. “It cannot be the duty of a Judge to presume a grant of the non-existence of which he is convinced” observed Farwell, J. in Attorney-General http://www.judis.nic.in 9 v. Simpson So also the presumption was not made if there was any legal impediment to the making of it. Thus, it has been held that it could not be made, if there was no person competent to be the recipient of such a grant, as where the right is claimed by a fluctuating body of persons. That was held in Raja Braja Sundar Deb v. Moni Behara. There will likewise be no scope for this presumption, if there is no person capable of making a grant: (Vide Halsbury’s Laws of England, Vol. IV, p. 574, para 1074); or if the grant would have been illegal and beyond the powers of the grantor. (Vide Barker v.
Richardson and Rochdale Canal Company v.
Radcliffe.”
10.Of course, in certain cases, customary right will be upheld. But then, the custom must be ancient and reasonable. In this case, the plaintiff claims right to exclusive fishing rights. The tank is admittedly not belonging to her. It belongs to Public Works Department. If the plaintiff's rights are to be sustained, the Government will be left only with a husk of ownership. It would also be violative of the public trust doctrine. http://www.judis.nic.in 10
10.Article 39 of the Constitution of India states that the ownership and control of the material resources of the community are to be so distributed as best to subserve the common good. The Government of Tamil Nadu has enacted the Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007. The validity of the said Act has also been upheld by the Hon'ble Division Bench in the decision reported in 2010-3-MLJ 771 (T.S.Senthilkumar vs. Government of Tamil Nadu). The importance of protection and maintenance of water bodies has been highlighted by the Hon'ble Full Bench in the decision reported in (2015) 6 CTC 369 (FB) (T.K.Shanmugam vs. State of Tamilnadu). Where the illegality is writ larger, the higher court should decline to enforce the decree even if it has become final. The Judgment and decree dated 14.06.1996 passed in O.S No. 124 of 1992 on the file of the District Munsif Court, Ambasamudram on which the plaintiff places reliance is illegal on the very face of it. The commercial interest of the plaintiff must yield to the larger public interest.
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11.In this view of the matter, the orders passed by the court below stand set aside. This civil revision petition stands allowed. Consequently, connected miscellaneous petition is closed.
02.01.2019 Skm To
1.The Additional District Munsif, Ambasmudram.
2.The Subordinate Judge, Ambasamudram.
2.The Record Keeper, V.R.Section, Madurai Bench of the Madras High Court, Madurai. http://www.judis.nic.in 12 G.R.SWAMINATHAN, J.
Skm CRP(MD)No.1659 of 2018 (NPD) and CMP(MD)No.7270 of 2018 02.01.2019 http://www.judis.nic.in