Kerala High Court
Nayarambalam Grama Panchayath vs Kuthrathodu Nellulpadaka Karshaka ... on 7 November, 2014
Author: Ashok Bhushan
Bench: Ashok Bhushan, A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 30TH DAY OF NOVEMBER 2015/9TH AGRAHAYANA, 1937
WA.No. 95 of 2015 IN WP(C).26885/2013
------------------------------------------
AGAINST THEJUDGMENT IN WP(C) 26885/2013 DATED 07-11-2014
.....................
APPELLANT/RESPONDENT IN WP(C) :
------------------------------------------
NAYARAMBALAM GRAMA PANCHAYATH
NAYARAMBALAM, REPRESENTD BY ITS SECRETARY, 682 509
BY ADV. SRI.A.X.VARGHESE
RESPONDENT/PETITIONER IN WP(C) :
-------------------------------------------
KUTHRATHODU NELLULPADAKA KARSHAKA SANGHAM
REG. NO.EKM/7C/54/2013, NEDUNGAD, NAYARAMBALAM
REPRESENTED BY ITS SECRETARY, 682 509.
BY SRI.K.S.MADHUSOODANAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-10-2015, THE
COURT ON 31-11-2015 DELIVERED THE FOLLOWING:
WA.No. 95 of 2015 IN WP(C).26885/2013
-----------------------------------------------
APPENDIX
APPELLANT'S EXHIBITS :
ANNEXURE A1 : TRUE COPY OF THE ORDER DATED 27.11.2013 IN
W.P.(C) No.26885 OF 2013.
ANNEXURE A2 : TRUE COPY OF THE AUCTION DIARY DATED 20.10.2014.
ANNEXURE A2(A) : TRUE COPY OF THE ENGLISH TRANSLATION OF ANNEXURE A2.
RESPONDENTS' EXHIBITS :
NIL
/TRUE COPY/
PA TO JUDGE
C.R.
ASHOK BHUSHAN, C.J. & A.M. SHAFFIQUE, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
W.A. No. 95 OF 2015
- - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 30th day of November, 2015
JUDGMENT
Ashok Bhushan, C.J.
This writ appeal has been filed by the
Nayarambalam Grama Panchayath against the judgment
dated 07.11.2014 in W.P.(C) No.25885 of 2014 by which
judgment the writ petition filed by the respondent has been
allowed.
2. The petitioner had filed the writ petition
challenging the auction notice dated 26.10.2013 issued by the
Grama Panchayat for auction of right of fishing in Kuthrathode.
Petitioner had made an application for grant of lease which was
rejected by the Panchayat. The brief facts of the case as
emerged from the pleading of the parties are :
The Kuthrathode having an extent of 2.32 Acres
vests in Nayarambalam Grama Panchayat. The petitioner is a
registered Paddy Growers' Agricultural Society. The petitioner
Society was given fishing right in the Kuthrathode from
W.A. No. 95 of 2015
-:2:-
10.11.1998 to 15.04.1999. The President of the petitioner
Society submitted a representation claiming lease of fishing right.
O.P. No.24256 of 2002 was also filed by the President of the
Society before this Court and this Court directed the Government
to consider the representations of the petitioner society dated
14.08.2002 claiming right to lease out the Kuthrathode. The State
Government proceeded to consider the representation submitted by
the petitioner Society. At the time of hearing, the Secretary of the
Panchayat appeared and stated that lease of Kuthrathode has been
granted to petitioner Society. Noticing the aforesaid statement,
the Government did not proceed to consider the matter any
further and the matter was dropped vide order dated 15.05.2003.
3. The Grama Panchayat passed a resolution on
04.12.2008 for area wise lease rent which was forwarded by the
Secretary to the Local Self Government Institution for its
approval. The petitioner and certain other persons filed W.P.(C)
No.30357 of 2011 which was disposed of by this Court by
19.06.2012 directing the State Government to take a decision on
the Resolution of the Panchayat. The State Government issued
W.A. No. 95 of 2015
-:3:-
Ext.P4 order by which the Resolution of Grama Panchayat to
recover the lease amount on the basis of lease area was
approved and the earlier procedure of 5% enhancement in the
lease amount was dispensed with. The Government issued the
order on 09.10.2012. The Panchayat informed the Secretary of
the petitioner Society that as per the decision of the Standing
Committee, sluices of Kuthrathode belonging to Grama Panchayat
should not be opened without permission of the Panchayat. The
Secretary of the Society filed W.P.(C) No.26137 of 2012,
objecting to the decision dated 30.10.2012 of Panchayat in which
writ petition this Court directed the Panchayat to remove the
sluice only after getting order of the Court.
4. On 28.10.2013 the petitioner submitted an
application for leasing out Kuthrathode for prawn culture. The
Panchayat had already issued an auction notice dated 26.10.2013
for leasing out Kuthrathode by public auction scheduled for
04.11.2013. Auction notice contained the terms and conditions.
The Panchayat has informed the Secretary of the petitioner
Society by letter dated 30.10.2013 that the Panchayat having
W.A. No. 95 of 2015
-:4:-
already taken a decision on 26.10.2013 to hold public auction on
04.11.2013, the application of the petitioner for grant of lease
cannot be considered. The petitioner filed the present writ
petition challenging Ext.P7 i.e. auction notice dated 26.10.2013
and Ext.P8 i.e. letter dated 30.10.2013 by which the petitioner
was informed that their application for lease cannot be accepted.
The petitioner further prayed for a mandamus directing the
respondents to lease out the Kuthrathode in terms of Exts.P3 and
P4.
5. A counter affidavit has been filed by the Panchayat
stating that Kuthrathode belongs to the Panchayat and the mere
fact that it was leased out to the petitioner on some earlier years,
that will not clothe the petitioner with any right to claim lease of
Kuthrathode. The Panchayat is free to settle the fishing right in
Kuthrathode by public auction. It was further pleaded that the
Development Standing Committee of the Panchayat on
24.10.2013 decided to lease out the Kuthrathode belonging to
the Panchayat. Thereafter on 26.10.2013 the Panchayat decided
to call public auction. Petitioner although well aware of the
W.A. No. 95 of 2015
-:5:-
Resolution, has submitted an application for lease which was not
accepted. Under Section 166(2) of the Kerala Panchayat Raj Act,
1994 Panchayat has exclusive power to administer the subjects
as enumerated in Third Schedule. A further affidavit was filed by
the Panchayat stating that after vacation of the interim order in
the present writ petition on 27.11.2013 the public auction was
conducted and Kuthrathode was leased out to one Dharmajan for
the period from 15.11.13 to 15.04.2014. It is also pleaded that
again the public auction was conducted on 20.10.2014 and
Kuthrathode was leased out for a period from 15.11.2014 to
15.04.2015 and an agreement has also been executed thereafter.
Petitioner filed an application for amendment of the writ petition
by which the petitioner prayed for quashing Exts.P14 to P16 i.e.
Resolution dated 18.10.2013, Resolution dated 24.10.2013 and
Resolution dated 26.10.2013 respectively.
6. Learned Single Judge vide judgment dated
07.11.2014 allowed the writ petition. Learned Single Judge
observed that as per Ext.P3 i.e. Government Order dated
15.05.2003, Government approved the right to lease out
W.A. No. 95 of 2015
-:6:-
Kuthrathode to the Society, the respondent Panchayat cannot
now turn round and say that the petitioner is not entitled to get
the leasehold right. It was further observed that on the basis of
Resolution dated 04.10.2008 the Panchayat decided to lease out
Kuthrathode on area wise rent. The said decision cannot be
dishonoured by the Panchayat. Learned Single Judge set aside
Ext.P7, P8 and P14 to P16 and directed the Panchayat to
reconsider the request of the petitioner in terms of Exts.P3 and
P4 and lease be granted to the petitioner during the next season.
7. Sri.A.X. Varghese, learned counsel for the appellant
challenging the judgment of the learned Single Judge contends
that the Kuthrathode having been vested in the Panchayat,
the Panchayat has every right to settle fishing right by public
auction. It is submitted that Ext.P3 i.e. order of the Government
dated 15.05.2003 at best recorded the grant of lease to
the petitioner in the year 2003 which cannot be read as granting
any permanent right of lease to the petitioners. Ext.P4 is an
order of the State Government dated 09.10.2012 approving the
W.A. No. 95 of 2015
-:7:-
Resolution of the Panchayat linking with the auction amount on
the basis of area and dispensing with 5% enhancement in the
lease amount which cannot clothe the petitioner with any right to
claim lease permanently. He submits that as the Panchayat
having leased out fishing right in pursuance of the auction notice
dated 26.10.2013 the writ petition had virtually become
infructuous. Learned Single Judge ought to have dismissed the
writ petition as having become infructuous. Under Section 166
of the Kerala Panchayat Raj Act, 1994 it is the Panchayats' duty
and function to take all measures regarding fishing.
8. Sri.S. Madhusoodanan Nair, learned counsel
appearing for the petitioner refuting the submission of learned
counsel for the appellant contends that once the Panchayat
having accepted the claim of the petitioner to get a lease
on Kuthrathode, the Panchayat cannot go behind the said
decision and is bound to lease out the Kuthrathode to the
petitioner Society. He submits that the Resolution of the
Panchayat having been approved to fix auction amount of lease
on the basis of the area, it is not open for the Panchayat to settle
W.A. No. 95 of 2015
-:8:-
the right by public auction. It is further contended that the
sluices which are on the southern side of the Kuthrathode
belongs to the petitioners, hence petitioners have a right to carry
out fishing. The sluices do not vest in the Panchayat. It is
submitted that the agricultural field of the members of the
petitioner Society being on the side of Kuthrathode, leasing the
Kuthrathode for fishing to other persons will cause prejudice to
the members of the petitioner society. Learned counsel for the
petitioner places reliance on the judgment of this Court reported
in Kodamthuruth Panchayat v. Vasu Pillai [1989 (1) KLT 21]
and Kalatharachira Padasekharam v. Chellanam Grama
Panchayat [2009 (4) KLT 336].
9. We have considered the submission of learned
counsel for the parties and perused the record.
10. There is no dispute between the parties that
Kuthrathode having an extent of 2.32 Acres vests in Grama
Panchayat. The petitioner Society is a society of Farmers, who
has their paddy fields adjacent to Kuthrathode. Petitioner also
claims to have been utilising the Kuthrathode for several years.
W.A. No. 95 of 2015
-:9:-
The cause of action for filing the writ petition was the decision
taken by the Grama Panchayat for settling the fishing right by
public auction and rejection of application of the petitioner for
grant of lease to them for the period 2013-14. The Grama
Panchayat has passed resolutions in the year 2013 which has
been brought on record for settling the fishing right in
Kuthrathode by public auction which resolutions were also
challenged by the petitioner by amending the writ petition. The
claim of the petitioner is based on basically two exhibits, i.e. two
orders of the Government dated 15.03.2013 (Ext.P3) and order
dated 09.10.2012(Ext.P4). The Submission of the petitioner
seems that in view of the aforesaid decision of Government, the
Panchayat cannot refuse the grant of lease to the petitioner.
11. Let us examine the aforesaid orders of the State
Government to find out as to whether on the basis of aforesaid
orders, the petitioner can claim any right for getting the lease of
Kuthrathode. Ext.P3 order dated 15.05.2003 is an order of the
Government which was passed by the Government in pursuance
of the judgment of this Court in O.P. No. 24256 of 2002. The
W.A. No. 95 of 2015
-:10:-
President of the petitioner society submitted representations to
the Government which was directed to be considered by the
State Government. It is useful to extract the aforesaid order
which is to the following effect :
"GOVERNMENT OF KERALA
Abstract
Nayarambalam Grama Panchayat - Right to lease out the
Kuthrathodu for acquaculture - Judgment dated 27.08.2002 in
O.P. No.24256 of 2002 - Implementation of the direction in
the Judgment complied with - Orders issued.
........................................................................................
LOCAL SELF GOVERNMENT (C) DEPARTMENT
G.o.(Rt) 1669/03/LSG Dated, Thiruvananthapuram15.5.2003
........................................................................................
Read : 1. G.O.(Rt) No.624/2002/LSGD dated
21.03.2002.
2. Representation dated 14.8.2002 from
Shri.S.Prakasan President of Kuthrathodu
Neelulpada Karshaka Sanghom
Nayarambalam, Ernakulam.
3. Judgment dated 27.05.2002 in O.P. No.24256
filed by Shri.S.Prakasan, President
Kuthrathodu Neelulpadaka Karshaka
Sanghom, Nayarambalam P.O.
ORDER
The Honourable High Court in the judgment dated 27.08.2002 in O.P. No.24256 filed by Shri.Prakasan, President of Kuthrathodu Neellulpadaka Karshaka Sahakarana Sanghom has directed Government to consider Ext.P2 representation (Representation dated 14.08.2002 put in by Shri.Prakasan, President of Kuthrathodu Nellulpadaka Karshaka Sanghom) with notice to the petitioners, the second W.A. No. 95 of 2015 -:11:- respondent and other parties and to pass appropriate orders on the matter. Accordingly, the Secretary (LSGD) heard all the concerned.
2. At the time of hearing, Advocate Shaji appeared for the petitioners. The Nayarambalam Grama Panchayat (Special Grade) was represented by its Secretary Shri.Sugathan Pillai. The Special Grade Secretary at the time of hearing has stated that the question over the right to lease out the Kuthrathodu for Aquaculture has been settled by granting the right to lease to the Kuthrathodu Nellulpadaka Karshaka Sahakarana Sanghom represented by the petitioners.
3. In the context of the above observations, Government do not consider it necessary to proceed with the matter and as such further action on this behalf is dropped.
4. The implementation of the direction contained in the judgment dated 27.08.2002 is thus complied with.
(By ORDER OF THE GOVERNOR) P. Kamal kutty, Secretary to Government.
12. A perusal of the aforesaid order indicates that at the time of hearing, the Secretary of the Panchayat stated that the right to lease out the Kuthrathodu for Aquaculture has been granted to the petitioner. Noticing the aforesaid, Government did not consider it necessary to proceed with the matter and take further action, and the proceedings were dropped. There is no dispute that petitioner, in pursuance of the aforesaid decision, was granted lease in the aforesaid year. Whether the order dated 15.05.2003 give a right to the petitioner to claim any permanent W.A. No. 95 of 2015 -:12:- lease or lease every year of the Kuthrathode is the question to be answered. As per the order as noted above the Government did not decide anything on merits and noticing the concession given by the Secretary of the Panchayat, Government closed the matter. The concession given by the Panchayat at best was the concession for the year concerned. More so the Secretary of the Panchayat has no jurisdiction to concede in favour of a particular society that every year the said society shall be granted lease. No such power is vested in the Secretary nor there is anything on record to show that the Panchayat has passed any resolution to that effect. Section 166 of the Panchayat Raj Act deals with the duty and function of the Panchayat. Section 166 (1)& (2) reads as follows :
"166. Powers, duties and functions of Village Panchayat.- (1) It shall be duty of the Village Panchayat to meet the requirements of the Village Panchayat area in respect of the matters enumerated in the Third Schedule:
Provided that it shall be the duty of the Village Panchayat to render services to the inhabitants of the Village Panchayat area in respect of the matters enumerated as mandatory functions in the Third Schedule.
W.A. No. 95 of 2015 -:13:-
(2) Subject to the other provisions of this Act and the guidelines and assistance financial, technical or otherwise, of the Government, the Village Panchayat shall have exclusive power to administer the matters enumerated in the Third Schedule and to prepare and implement schemes relating thereto for economic development and social justice."
13. The Village Panchayat has exclusive power to administer the matters enumerated in Third Schedule and to implement a scheme thereto for economic development and social justice, subject to the guidelines issued by the Government. A learned Single Judge of this Court had occasion to consider the provisions of Section 166(2) of the Panchayat Raj Act in Valanchery Service Co-operative Bank v. State of Kerala [2006(1) KLT 425]. In the above case Panchayat passed a resolution accepting the quotation of the petitioner for supply of food articles to different Anganwadies. The Project Officer issued an order to Grama Panchayat directing that supply shall be taken from the 4th respondent. The Panchayat wrote a letter to the Secretary to the Government. Government sent a reply directing the Grama Panchayat to W.A. No. 95 of 2015 -:14:- permit the 4th respondent to make the supply. The said decision was challenged by the petitioner whose quotation was accepted by the Panchayat. In the aforesaid context the learned Single Judge has held in paragraphs 6 and 7 as follows:
"6. So much so, going by S.166(2), a Village Panchayat shall have exclusive power to administer matters relating to running of anganwadies and the only requirement is that it has to be subject to the other provisions of the Act and guidelines and financial, technical or other assistance of the Government. It is for the Village Panchayat to decide matters relating to running of anganwadies.
7. The issuance of Ext.P4 directing the Panchayat to permit the 4th respondent to supply food articles to Anganwadies is necessarily in the nature of taking a decision that cannot be characterised as issuing any guidelines. The quality of the Governmental participation, in view of sub-s.(2) of S.166, cannot extend to issuing directions as has been done in the nature of Ext.P4. If any authority in excess of what is stated above is assumed to be available with the Government, in my considered view, it will even nullify the independence of the Panchayat Raj institutions as envisaged by the amendments to the Constitution of India, followed by the making of the Kerala Panchayat Raj Act, 1994 by which the situation available before that has been changed. A survey of the provisions in Part IX of the Constitution of India would show the genesis of a Panchayat and the differentiation between the Panchayats conceived of in Part IX W.A. No. 95 of 2015 -:15:- from the Panchayats that were provided for by the statutory provisions before the introduction of Part IX into the Constitution. The Panchayats so constituted are constitutional institutions and their birth and existence are dependent on the mechanism provided for, in the Constitution itself. (See the judgment in WP (C) No.14429/2005 and connected cases). Viewed in this backdrop, the power of the Government to issue any guidelines under S.166(2) of the Act can relate only to "issuing guidelines"
and not to interfere or issue directions in individual cases. The case in hand is not one where the Government was exercising authority under S.191 of the Act. So much so, the contents of Ext.P4 are without the sanction of law and hence without authority. "
We thus conclude that Ext.P3 cannot be read as an order of the State Government giving right to the petitioner to claim lease of Kuthrathode for all time to come. The said order at best relate to the year in question i.e. 2003-04.
14. Now we come to Ext.P4 which is another order of the Government on which petitioners have placed heavy reliance. The Grama Panchayat has passed resolution on 04.12.2008 linking the auction amount on the basis of the area and to dispense with 5% enhancement in the lease amount for prawn farming in the puramboke thodu of the Grama Panchayat. W.A. No. 95 of 2015 -:16:- W.P.(C) No.30375 of 2011 was also filed by the Secretary of the petitioner Society to get the resolution dated 04.10.2012 implemented. The High Court in the aforesaid writ petition directed the Government to take a decision. In the aforesaid context the order dated 09.10.2012 was passed by the Government which is extracted as follows:
"GOVERNMENT OF KERALA ABSTRACT Local Self Government Department - Judgment dated 19-6-12 of the High Court of Kerala in Writ Petition No.30357/11 filed by Sri.M.S.Sivadas - Order issued approving decision No.16 dated 4-12-08 of the Nayarambalam Grama Panchayat -
Local Self Government (RC) Department GO (MS) No.2816/2012/LSGD Date, Thiruvananthapuram 9-10-2012 Ref: 1. Decision No.16 dated 4-12-08 of Nayarambalam Grama Panchayat.
2. Judgment dated 19-6-12 of the Hon. High Court of Kerala in WP 30357/11.
3. Letter No.C1-21992/12 dated 25-8-12 of the Panchayat Director.
ORDER Purampoke thods belonging to the Nayarambalam Gramapanchayat were allotted by auction for prawn culture. W.A. No. 95 of 2015 -:17:- Right to conduct prawn culture in 11 thods belonging to the Panchayat was thus allotted by auction. Every year lease amount is increased by 5%. Since the expenditure for prawn farm and labour charges were substantially increased, considering the request of the farmers and Karshaka Samajams, Nayarambalam Gramapanchayat as per Ref. (1) decided to dispense with the 5% increase in lease amount and to recover the lease amount from 2008-09 linking with the auction amount of prawn farms on the basis of area and sought approval of the Government.
In identical case, the Panchayat Director vide order No.C2- 14772/91 dated 4/12/1991 granted permission to Kuzhippally Panchayat for recovering share of the total auction amount proportionate to area from 1991-92. As per letter No.5593/C1/03/LSGD dated 9/2/2003 of the Local Self Government (C) Department it has been clarified that permission can be granted to Naithukadu Krishi Samajam of Pallippuram Grama Panchayat to pay share to the panchayat linking with the auction amount in proportion to area. In the light of Ref. (2) High Court order, the Panchayat Director vide Ref. (3) has recommended to take appropriate action on Ref. (1) decision of the panchayat.
The Government examined the matter in detail. In the circumstances, permission is granted to Nayarambalam Grama Panchayat to take action to recover lease amount on the basis of decision No.16 dated 4/12/08 of the Nayarambalam Grama Panchayat linking with the auction amount on the basis of area and dispense with the 5% enhancement in the lease amount for prawn farms in the Purampoke thuds of the said Grama Panchayat.
W.A. No. 95 of 2015 -:18:-
Judgment dated 19/6/12 of the Hon'ble High Court in Writ Petition (C) No.30357/11 is thus implemented.
By order of the Governor A.R. Suresan Deputy Secretary "
A perusal of the aforesaid order indicates that Government granted approval to the resolution passed by the Grama Panchayat to fix the amount on the basis of area and dispense with 5% enhancement in the lease amount. The said decision of the Government was thus relating to manner and method of fixing the lease amount and has nothing to do with the right of petitioner to claim lease of the Kuthrathode. The said Government Order also cannot clothe the petitioner with any right to claim lease of Kuthrathode every year.
15. The Panchayat with whom the Kuthrathode is vested has all right to manage and administer it. The settlement of fishing right in Kuthrathode is done on yearly basis and the right was granted from 15.11.2013 to 15.04.2014. Resolutions were taken by the Standing Committee of the Grama Panchayat for settling the fishing right by public auction by Exts.P14 to P16. W.A. No. 95 of 2015 -:19:- To implement the decision, auction notice was issued on 26.10.2013 in pursuance of which the fishing right was settled in favour of one 'Dharmarajan'. Petitioner Society have no such right on the basis of which they can claim that Panchayat is bound to give lease of fishing right to the petitioner alone and they cannot settle it by public auction. How the property of the Grama Panchayat is to be settled and managed is in the domain of Grama Panchayat with whom Kuthrathode is vested and we are of the view that no fetter can be read in the said right on the basis of Exts.P3 and P4 as contended by the petitioners. It is also relevant to note that apart from settling fishing right for the year 2013-14, the Grama Panchayat has further settled the fishing right for the year 2014-15 also.
16. Learned counsel for the petitioner has also made submission with regard to sluices in the southern side of the thodu. He submits that sluices are irrigation work within the meaning of Travancore-Cochin Irrigation Act, 1956 and shall not be vested in the Grama Panchayat. Petitioner further stated that sluices were belonging to the petitioner. Petitioner in the writ W.A. No. 95 of 2015 -:20:- petition has also brought on record certain photographs in which the sluices are shown as made of Bamboo. The Panchayat claims that sluices belong to the Panchayat. For the purpose of this case it is not necessary to go into the issue as to whether the sluices in the thodu were placed by the petitioner or by the Panchayat.
17. Whether the sluices in the present case can be said to be work of irrigation which shall not vest in the Grama Panchayat is the question to be answered. Section 218 of the Kerala Panchayat Raj Act provides for vesting of water course, springs, reservoirs etc., in Village Panchayat. The proviso to Section 218(1) provides that nothing contained in the section shall apply to any work which is, or is connected with, a work or irrigation or to any adjacent land appertaining to any such work. Section 218(1) is quoted as below :
"218. Vesting of water course, springs, reservoirs, etc., in Village Panchayats.- (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other law for the time being in force, all public water courses (other than rivers passing through more areas, than the W.A. No. 95 of 2015 -:21:- panchayat area which the Government may, by notification in the Gazette, specify), the beds and banks of rivers, streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, 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 panchayat or otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to, and vest absolutely in the Village Panchayat:
Provided that nothing contained in this sub-section shall apply to any work which is, or is connected with, a work or irrigation or to any adjacent land appertaining to any such work."
18. Two decisions of this Court has been relied on by the petitioner in the above context. The first decision is the judgment of a Division Bench of this Court reported in Kodamthuruth Panchayat v. Vasu Pillai [1989 (1) KLT 21]. In the above case the Division Bench had an occasion to consider the proviso to Section 82 of the Kerala Panchayats Act, 1960 which was pari materia to Section 218 of the Kerala Panchayat Raj Act, 1994. In the above case it was noticed that sluices had W.A. No. 95 of 2015 -:22:- been constructed by the Government on the Bank of Vembanad Olayappu Kayal for the purpose of enabling the letting of the water through the five sluices for the benefit of cultivators of the padasekharam. Referring to Section 2(5) of the Travancore-Cochin Irrigation Act, 1956, the Division Bench held that the irrigation work includes sluices also. In this context it is useful to refer to Section 2(5) of the 1956 Act which defines the Irrigation Work. Section 2(5) reads as follows:
"Sec.2(5) "irrigation work" includes -
(a) all canals, channels, reservoirs and tanks which are intended or which are or may be used for the supply and storage of water for agricultural purposes;
(b) all works, embankments, structures, supply and escape channels connected with such canals, channels, reservoirs or tanks;
(c) all water-courses which are supplied with water from such canals, channels, reservoirs or tanks;
(d) all drainage works, that is to say, canals, channels, escape channels from a canal, channel, reservoir or tank, dams, weirs, embankments, sluices, groynes or other works for the protection or benefit of agricultural lands or for the reclamation of kole lands, kayal lands, kari lands, or such other lands; and
(e) all lands occupied by the Government for the purposes of such canals, channels, reservoirs, tanks and all buildings, W.A. No. 95 of 2015 -:23:- machinery, fences, gates and other erections occupied by or belonging to the Government upon such lands;"
The Division Bench in paragraph 2 laid down as follows:
"2. In para 2 of the writ petition, the writ petitioners have described the factual position as follows :
"The irrigation for cultivating the above paddy lands of the petitioner comprising part of the aforesaid Padasekharam is made available to the petitioners through sluices constructed by Government on bunds. The sluices have been constructed by Government on the bank of the Vembanad Olayappu Kayal and the water enters the Padasekharam through five main sluices constructed by Government as part of its minor irrigation programme for the benefit of the cultivators of the Padasekharam. These sluices are situated in the Kodamthuruth Panchayat and come under the minor irrigation department of Government .........."
The factual statements made in this paragraph are not controverted. Thus, it becomes clear that the sluices have been constructed by the Government on the bank of Vembanad Olayappu Kayal for the purpose of enabling the letting of the water through the five sluices for the benefit of cultivators of the Padasekharam. The expression work of irrigation or irrigation work is not defined in the Kerala Panchayats Act. We find that expression 'irrigation work' has been defined in S.2(5) of the Travancore-Cochin Irrigation Act, 1956. Clause (b) of S.2(5) says that the irrigation work includes sluices also. Having regard to the factual statements made in paragraph 2 of the writ petition, which W.A. No. 95 of 2015 -:24:- is not disputed, and the definition of the expression 'irrigation work' there cannot be any doubt that the sluices constitute works of irrigation. What the proviso to sub-s.(1) of S.82 says is that the vesting contemplated by sub-s.(1) shall not take place in respect of any work which is connected with a work of irrigation or of any adjacent land appertaining to any such work. Thus it is clear that the proviso gets attracted not only to the irrigation work but to any work connected with such irrigation work and also to any adjacent land appertaining to any such irrigation work. All these areas do not stand vested in the Panchayat."
In the above case sluices were constructed by Government as part of Minor Irrigation Programme for the benefit of the cultivators of Padasekharam. In the above background the Division Bench held that the sluices do not vest in Panchayat.
19. The second case relied on by the petitioner is Kalatharachira Padasekharam v. Chellanam Grama Panchayat [2009 (4) KLT 336]. In this case also sluices in question were constructed by the Minor Irrigation Department of the State. The petitioners in the said writ petition claim for a declaration that Panchayat have no authority to auction the right of prawn farming/fishing at the minor irrigation sluices by virtue of Section 218 of the Panchayat Raj Act. The learned Single W.A. No. 95 of 2015 -:25:- Judge in the above case has noted that the area over which the Panchayat is claiming ownership is an area covered by sluices which are maintained by the Minor Irrigation Department. Following was observed in paragraphs 5 and 7 :
"5. Ext.R5(a) mentioned in the affidavit is a report of the Village Officer addressed to the Additional Tahsildar, Cochin, containing the details of the survey numbers of the puramboke land, having an area of 15.97.500 acres, in which the thodu is situated. In addition to the above, reference is also made to the existence of roads over about 1.5 acres of land, which is stated to be maintained by the Panchayat. Thus, essentially, the area, over which ownership is claimed by the Panchayat, is the area covered by natural water course, in which the sluice maintained by the Minor Irrigation Department is constructed, and includes the area covered by pathways and roads as well. It is in respect of the aforesaid area, as stated in paragraph 5 of the Writ Petition itself, the Panchayat has been farming out the right to do prawn farming/fishing at the rate fixed on negotiation with the petitioner, and if the petitioner is unwilling, by auctioning the right.
7. The learned counsel for the petitioner has made reference to S.218(1) of the Act and its proviso, which reads as under :-
"218. Vesting of water course, springs, reservoirs, etc., in Village Panchayats.- (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other law for the time being in force, all public water courses (other W.A. No. 95 of 2015 -:26:- than rivers passing through more areas, than the panchayat area which the Government may, by notification in the Gazette, specify), the beds and banks of rivers, streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, 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 panchayat or otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to, and vest absolutely in the Village Panchayat:
Provided that nothing contained in this sub-section shall apply to any work which is, or is connected with, a work or irrigation or to any adjacent land appertaining to any such work."
A reading of the proviso to S.218(1) and its proviso, therefore, shows that the vesting as contemplated under the Section shall not apply to any work which is, or is connected with, a work of irrigation or to any adjacent land appertaining to any such work."
20. In the aforesaid two cases the sluices were constructed by the Minor Irrigation Department of the State Government and the Panchayat was claiming right on the land beneath the sluices. Referring to the proviso to Section 82 of the Kerala Panchayats Act, 1960 and Section 218 of Kerala Panchayat Raj Act, 1994 Act the Court held that the Panchayat has no right to claim right of the settlement of fishing/prawn W.A. No. 95 of 2015 -:27:- culture in the land beneath the sluices. In the present case it is not the case of either of the parties that sluices are constructed by the Minor Irrigation Department of the Government. The photographs which have been brought on record as per Ext.P11 indicate that the sluices are temporary construction made by bamboos. More so in the present case where the issue is regarding claiming right of lease of the petitioner on thodu that too an area of 3.23 Acres. When the Panchayat has right to let out the thodu by public auction, any temporary sluice made in that thodu shall also go along with the said right. In the present case the sluice in question cannot be treated to be a work of Irrigation by Department of the State. The aforesaid two judgments relied on by learned counsel for the petitioner does not support the claim of the petitioner in any manner.
21. In view of the forgoing discussion we conclude that the Grama Panchayat has every right to lease out fishing right in Kuthrathodu by public auction and no error can be found in the decision of the Grama Panchayat Ext.P14 to P16 to settle the right by public auction. The rejection of the application of the W.A. No. 95 of 2015 -:28:- petitioner Society for grant of lease was fully justified and no interference was called in the writ petition. Learned Single Judge committed error in setting aside Exts.P7, P8, P14 to P16.
In the result the Writ Appeal is allowed. The judgment of the learned Single Judge dated 07.11.2014 is set aside. The Writ Petition is dismissed. Parties shall bear their own costs.
Ashok Bhushan, Chief Justice.
A.M. Shaffique, Judge.
ttb/23/11