Madras High Court
Thimmapuram Village Panchayat vs The State Of Tamilnadu on 30 July, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30.07.2012 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.12977 of 2010 and M.P. No.2/2010 Thimmapuram Village Panchayat, rep. by its Vice President, C.Duraisamy .. Petitioner ..Vs.. 1.The State of Tamilnadu rep. by its Secretary to Government, Home Department, Fort St.George, Chennai-9. 2.The Collector, Krishnagiri District, Krishnagiri. 3.The Executive Engineer, Public Works Department, Upper Penniyar Vadinilakkottam, Dharmapuri-5. 4.The Assistant Director of Fisheries (Island Fisheries Development) Krishnagiri District. 5.Kaveripattinam Parvatharajakula Meenavar Kotturavu Sangam, Barur, rep. by the Inspector of Fisheries/ Special Officer, Krishnagir District. 6.The Superintendent of Police, Krishnagiri District, Krishnagiri. 7.G.Kuppusamy 8.K.C.Narayanan 9.Ramachandran 10.G.Gopal 11.C.Raja 12.K.Shanthi 13.M.Chinnasamy 14.R.Murugesan 15.Arumugam 16.Mathesh 17.Duraisamy 18.Murugan 19.Sakthivel 20.Panchali 21.Malliga 22.Sathiya 23.Ganesan 24.Raghavan 25.Santhi 26.Vadivel 27.Sankar 28.M.Kumar 29.R.Ramasamy 30.Mohan 31.Ramasamy .. Respondents Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a writ of Certiorarified Mandamus, to call for the records relating to the order passed by the third respondent in proceedings No.Ko.2334/07/THA4/MI.Pa.Ka.Kri.Vattam/13, dated 13.07.2007, signed on 19.07.2007, quash the same and direct the respondents 1 to 4 and 6 to grant the lease of fishing right of Thimmapuram Village Lake, Krishnagiri Taluk and District in favour of the petitioner Panchayat as it has got preferential right. For Petitioner : Ms.R.Singaravelan for Mr.V.S.Jagadesan For Respondents 1 to 4 : Mr.R.Murali, GA For 5th Respondent : Mrs.C.K.Vishnupriya For Respondents 7 to 31 : Mr.G.Masilamani, SC for Mr.R.Lakshminarayanan O R D E R
Thimmapuram Village Panchayat, represented by its Vice President, Thimmapuram Village and Post, Krishnagiri Taluk and District, has challenged the order of the Executive Engineer, Public Works Department, Upper Penniyar Vadinilakkottam, Dharampuri, third respondent herein in proceedings No.Ko.2334/07/THA4/MI.Pa.Ka.Kri.Vattam/13, dated 13.07.2007, signed on 19.07.2007 and consequently, prayed for a direction to respondents 1 to 4 and 6, to grant lease of fishing rights of Thimmapuram Village Lake, Krishnagiri Taluk and District, in favour of Thimmapuram Panchayat, on the ground that it has got a preferential right.
2. The deponent is the Vice President of the abovesaid Panchayat. It is the case of the Vice President that fishing right was leased out for a period of three years from 10.10.2005 to 10.10.2008, in favour of Kaveripattinam Parvatharajakula Meenavar Kotturavu Sangam, Barur, represented by the Inspector of Fisheries/Special Officer, Krishnagiri District, fifth respondent herein. By way of public auction, it was given in favour of one Mrs.T.Rathidevi, for a sum of Rs.22,05,000/-. The abovesaid amount was credited into Village accounts and that the same was spent for various developmental works for the welfare of the Village.
3. The petitioner has further submitted that as per G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993, preferential right has been given to the Society and Panchayat. According to the petitioner, willingness of the Panchayat should have been obtained before granting lease, in favour of the fifth respondent society. He further submitted that the Panchayat was not aware of the steps taken by the Executive Engineer, Public Works Department, Upper Penniyar Vadinilakkottam, Dharmapuri-5, third respondent, regarding the grant of lease to the fifth respondent. According to the petitioner, had the Village Panchayat participated in the auction conducted for lease of fishing rights, there would have been no other option to the Public Works Department, except to grant fishing rights in favour of the Panchayat.
4. The petitioner has further submitted that the Panchayat bona fidely believed that the members of the society would come forward to sell their fishing rights for the welfare of the entire village and therefore, the Panchayat did not take any steps to get the lease directly from the Public Works Department. Earlier, some elders of the Village, filed writ petitions for fishing rights and that the lease holders also filed a writ petition before this Court and hence, the petitioner-Panchayat waited for the outcome of those writ petitions and since the writ petitions filed by the elders, were dismissed, a decision was taken by the Council, by passing a resolution, to protect the interest of the Panchayat and hence, it was decided to file the present writ petition.
5. Mr.R.Singaravelan, learned counsel for the petitioner further submitted that due to the dispute in granting fishing rights to the Society, there was a law and order situation in the Village and on the basis of a report of the Inspector of Police, Kaveripattinam Police Station, dated 31.10.2008, that the Revenue Divisional Officer, initiated proceedings on 03.12.2008, and convened a peace committee meeting. The petitioner and the representatives of the fifth respondent-society and others attended the peace committee meeting.
6. According to the learned counsel, as per Section 203 of the Tamil Nadu Panchayats Act, 1994, the District Collector has emergency powers in respect of execution of any work in a Panchayat. He also submitted that as per Section 132 of the said Act, the lake in respect of which fishing right is granted by Public Works Department vests in the Village Panchayat, subject to the declaration of the Government. He submitted that fishing rights of a Village Panchayat, cannot be granted against the interest of the Panchayat.
7. According to the learned Counsel, para-4(xi) of G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993, states that the Collector of a District concerned shall continue to be the Lessor in respect of the Tank under his control. As per Para-3 of the above G.O., only in the case of the Panchayat, not willing to take up the lease, Co-operative societies can seek for lease of fishing rights. He further submitted that an unanimous resolution was passed by the village Panchayat on 21.04.2010 to take the fishing rights on lease and consequently, a representation has also been sent to the District Collector. He also submitted that the said representation has not been properly considered and therefore, the impugned order, is liable to be set aside.
8. Learned counsel for the petitioner further submitted that there is a provision under the Tamilnadu Panchayats (Procedure for conducting Public Auction of Leases and Sale in Panchayats) Rules, 2001, dated 22.11.2001, to conduct re-auction under Rule 18 of the said Rules and as per Rule 18(b) of the said Rules, when another person offers higher amount, than the one quoted, re-auction of lease is permissible. He also submitted that the Panchayat is willing to deposit a higher lease amount than the one offered to the Co-operative Society
9. Referring to para-4(ii) of G.O.Ms.No.332, Animal Husbandary and Fisheries (FS IV) Department, dated 17.11.1993, he further submitted that after the expiry of five years' period, the lease should be increased by 10% of the previous years' rate. But, for nearly five years, there was no increase. Thereby, the revenue, which is expected from the lease of fishing rights, is lost and that even the amount quoted by M/s.Rathidevi, on the earlier occasion was 25 times more than the rent expected. He submitted that payment of enhanced rent, would benefit the Village. According to the learned counsel, the Society is mal-administered and that new members have been enrolled, after the grant of fishing rights.
10. Learned counsel for the petitioner submitted that there is no basis for fixing such a low amount to the society, when the Panchayat has come forward to offer more amount for grant of fishing rights. According to him, G.O.Ms.No.332, Animal Husbandary and Fisheries (FS IV) Department, dated 17.11.1993, has to be interpreted in a such way, taking into consideration, both the society and Panchayat can stake their claim simultaneously, and it should be for augmenting revenue and viewed in that angle, there would not be any perpetuation, in granting lease of fishing rights only to the society, otherwise, it would be contrary to the object of the Government, in augmenting revenue in all the matters relating to grant of lease.
11. Learned counsel for the petitioner further submitted that the Village Panchayat has a preferential right, for lease of fishing rights and in such circumstances, the decision rendered in the earlier writ petitions filed by individuals, would not preclude the Village Panchayat from approaching this Court. According to him, the judgement rendered in the above Writ Petitions, have been decided only on the grounds of locus standi and therefore, the question of applying the principles of res judicata does not arise, as the parties are different.
12. Inviting the attention of this Court to the Muchileka, said to have been executed in October' 2005 by Mrs.Rathidevi, in the presence of the villagers that, in the event of any loss, she would extend the lease in favour the Panchayat, learned counsel for the petitioner submitted that even in the earlier occasion, fishing rights were enjoyed only by the Villagers and that the revenue derived was used for developmental works.
13. The Special Officer, Kaveripattinam Parvatharajakulam Meenavar Co-op. Society Ltd., Krishnagiri, fifth respondent, has filed a counter affidavit. Reiterating the same, Mrs.C.K.Vishnupriya, learned counsel for the fifth respondent made a preliminary objection that the Vice President of the Panchayat, has no right to question the lease of fishing rights to the Co-operative Society. She further submitted that as per Paragraph 3 of G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993, lease of fishing rights to Co-operative societies, comprised of Fishermen or Harijans engaged in fishing, has to be given, the first priority and the question of auctioning of fishing rights, arises only if no Co-operative Society of fishermen or Harijans, engaged in fishing or the Panchayats, coming forward to take up the lease.
14. Learned counsel for the fifth respondent further submitted that writ petitions, filed by the individuals for the same cause of action, have already been dismissed and that therefore, it is not open to the Vice President of the same Village Panchayat to once again file a fresh writ petition, on the same cause of action. She also submitted that the averments relating to law and order problem in the village have been made only for the purpose of filing this writ petition.
15. Learned counsel for the fifth respondent further submitted that it is not correct to say that the lake is vested with the village Panchayat. She further submitted that the question of conducting re-auction under rule 18(b) of the Tamilnadu Panchayats (Procedure for Conducting Public Auction of Leases and Sale in Panchayats) Rules, 2001, dated 22.11.2001, does not arise at all.
16. It is also the submission of the learned counsel for the 5th respondent that the price paid by Mrs.Rathidevi need not be taken into account, for deciding this writ petition, where the inter-se rights of the society and village panchayat is being adjudicated. According to her, the Government Order, G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993, has been properly implemented. She also submitted that a local body has no jurisdiction to question the Government Order and that it has no right to pass any resolution, contrary to the same. According to her, Panchayat is having many ways to augment revenue and fishing rights cannot be claimed as a matter of right.
17. Respondents 7 to 31 have filed a detailed counter affidavit. At the foremost, inviting the attention of this Court to the common orders passed in W.P.No.29944 of 2008, etc., dated 09.06.2010, filed by 25 persons of Thimmapuram and Sundakuppam Villages, to the issues, arguments advanced by the parties therein and the decision made in the above writ petitions, Mr.G.Masilamani, Learned Senior Counsel for the respondents 7 to 31, submitted that the present writ petition is nothing but a replica of the above writ petitions and all the contentions made by the Vice President of Thimmapuram Village Panchayat, on behalf of the Village, which are similar to the one raised in the present writ petition, have already been rejected by this Court.
18. Learned Senior Counsel for respondents 7 to 31 submitted that in the above writ petitions, the petitioners therein claiming themselves to be representatives of Thimmapuram and Sundakuppam Villages, sought for a writ of Certiorari, to quash the proceedings, dated 13.07.2007, by which, lease of fishing right has been granted to fifth respondent society. He also drew the attention of this Court that earlier, one Mr.Velumany, Councilor and Ex-President of Thimmapuram Village and Panchayat, Krishnagiri District, espousing the cause of the villages, has filed a writ petition and that the present writ petition has been filed by Thimmapuram Panchayat, represented by the Vice President. He also pointed out that W.P.No.15727 of 2009, has been filed by one Mr.G.Govindhan, claiming himself to be the Headman of the Village.
19. Inviting the attention to this Court to the prayers made in the above writ petitions and the present writ petition, Learned Senior Counsel submitted that except the additional prayer for a Mandamus, in the present writ petition, for a direction to respondents 1 to 4 and 6 herein, to grant lease of fishing rights of Thimmapuram Village Lake, Krishnagiri Taluk and District, in favour of the petitioner-Panchayat, the other prayer to quash the order, dated 13.07.2007, of the Executive Engineer, by which, fishing rights have been granted to the fifth respondent-Sangam, remains the same.
20. Referring to the findings recorded by this Court in W.P.Nos.5568 and 15727 of 2009, that there was no irregularity or illegality in the impugned order, dated 13.07.2007, passed by the Executive Engineer, Public Works Department, in granting lease in favour of the fifth respondent society, and the final decision that no case has been made out for interference with regard to the prayer made in W.P.No.5568 of 1997, ie., to quash the proceedings, dated 13.07.2000, Mr.G.Masilamani, Learned Senior Counsel for the petitioner further submitted that when the prayer for a Writ of Certiorari, had already been dismissed, the present writ petition with an additional prayer, for a Mandamus, on the alleged preferential right to the Village Panchayat, is nothing but a Relay Race by one after another, belonging to the same Village Panchayat and that the same should not be permitted by this Court.
21. Referring to G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993, Learned Senior Counsel further submitted that granting fishing rights to fishermen Co-operative Societies, on preferential basis, in respect of Public Tanks, under the control of Public Works Department and Revenue Department, is purely a policy decision of the Government and it is not open to the petitioner-Panchayat to contend that the right of fishing should be given only to Village Panchayat. In this context, he also drew the attention of this Court to Paragraphs 2 and 3 of the abovesaid G.O., and further contended that granting lease of fishing rights to the Co-operative Societies, comprised of fishermen or harijans, engaged in fishing, should be given the first priority and only if the Co-operative Societies of Fishermen and Harijans engaged in fishing, are not willing to take up the lease, a Village Panchayat can stake their claim and if the Societies or the Panchayats, do not come forward to take up the lease, auctioning of fishing rights can be made. In such circumstances, he submitted that it is not open to the petitioner to contend that the Panchayat has got a preferential right over the societies or only auction should be conducted, as a method to augment for more revenue for the Panchayat. He also submitted that when there is no challenge to the Government order, which prescribes the order of preference in granting lease, adopting a gullible method, by including a prayer for Mandamus, it is not open to the Village Panchayat, represented by its Vice President to file successive writ petitions, on the same cause of action. Referring to Paragraph 3, Learned Senior Counsel submitted that the intention of the Government is clear and the Village Panchayat does not have an equal right to be considered along with the Co-operative Society, fishermen or harijans, engaged in fishing.
22. Taking this Court to the averments made in the supporting affidavit made in the present writ petition that the Vice President was waiting for the outcome of W.P.Nos.5568 of 2009, etc., and coming to know that the writ petitions were dismissed and hence, the Village Panchayat has chosen to file the present writ petition in Public Interest, in the name of the Panchayat, Learned Senior Counsel submitted that it is not open to each and every member of the Village or the persons, holding the post of Councillor or Vice President, Ex-President, or any other person, as the case may be, to file writ petitions, one after another either in individual capacity or in a representative capacity, on the same cause of action and that the same cannot be permitted. According to him, if the Vice President or the Panchayat was aware of filing of the Writ Petitions for lease of fishing rights in favour of the Village, the Panchayat could have very well impleaded itself in the earlier writ petitions and prosecuted the relief, along with others, without waiting for the outcome of the earlier writ petitions. He submitted that filing writ petitions in succession on the same cause of action, does not reflect bona fides, on the part of the petitioner. He therefore submitted that the decision rendered in previous writ petitions operate as a constructive res judicata and hence, the present writ petition has to be dismissed on this score alone.
23. Referring to Sections 132 and 203 of the Tamil Nadu Panchayats Act, 1994, relied on by the petitioner, Learned Senior Counsel submitted that both the provisions are not applicable to the facts of this case. He further submitted that the lake is under the control of Public Works Department and revenue collected for lease of fishing rights, has to be deposited only in the accounts of Public Works Department. At no point of time, the lake was vested in Village Panchayat and Section 132 has no application to the facts of this case. He also submitted that Section 203 is inappropriate to the facts of this case. In this context, he also drew the attention of this Court to Paragraph 13 of the common order, in W.P.No.29944 of 2008, etc., dated 09.06.2010, wherein, the said contention had already been rejected by this Court.
24. Learned Senior Counsel for the respondents 7 to 31 further submitted that the intention behind the Government policy is to award the fishing rights to the societies of Fishermen or Harijans engaged in fishing. A Village Panchayat cannot attempt to deprive the above benefits extended to the Society and what the Government has intended to achieved by way of a policy decision, cannot undone by a Mandamus, as long as the G.O., issued in the year 1993, continue to exist.
25. Attacking the attempt made by the Village Panchayat, as dubious and lack of bona fides, Learned Senior Counsel submitted that earlier, when the writ petitions filed by the Ex-President and Councilor and another person, who claimed himself as Headman, were dismissed on 09.06.2010, within two days, the Village Panchayat seemed to have passed a resolution to file a fresh writ petition.
26. Learned Senior Counsel further submitted that the common order made in W.P.No.29944 of 2008, etc., dated 09.06.2010, squarely applies to the facts of this case in all force and for the abovesaid reasons, prayed for dismissal of the writ petition.
Heard the learned counsel for the parties and perused the materials available on record.
27. Before adverting to the facts of this case, it is relevant to extract the Revenue Standing Order 211 and G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993, which are as follows:
RSO 211. FISHERIES Disposal of Fisheries by lease.The fisheries in all public inland waters such as tanks, rivers, estuaries, canals, drains, etc., whether in charge of Revenue or Public Works or Fisheries Department should ordinarily be disposed of by lease. Where such waters lie in or flow through municipal or panchayat limits, the right of fishing shall be exercised in such limits subject to the provisions of section 228 of the Tamil Nadu District Municipalities Act or section 124 of the District Board Act, 1920, or section 77 of the Tamil Nadu Village Panchayats Act (Act X of 1950) as the case may be. Disposal of fishery rights otherwise than by lease shall be resorted to only under the circumstances mentioned in paragraph 2 below. The concession of lease without auction is not available to individuals. The lease should be given in the following order of preference:
(i) Co-operative societies of fishermen or of Harijans engaged in fishing;
(ii) Panchayat of the locality;
(iii) Private individuals as determined by the results of public auction.
The following procedure should be adopted in sanctioning the lease:-
(i) The co-operative societies composed of fishermen or of Harijans engaged in fishing should first be given an opportunity of taking the fishery on lease for a reasonable rental fixed by the Collector of the district or the authority concerned.
(ii) If the co-operative society is not prepared to take the lease for the amount offered, opportunity should be given to the panchayat working in the area to take the lease for the same amount.
(iii) If neither the co-operative society nor the panchayat is willing to take the lease, tie fishery should be disposed of by public auction in the manner indicated in paragraph 2 below.
(iv) In fixing the rentals, the Collector or the authority concerned should take into account not only the average revenue realised during the previous five years but also such circumstances as combination of bidders or reckless bidding affecting the rental in any of the previous years and any development of fishery by the Fisheries Department during the relevant period. The Collector or the authority concerned should consult the Assistant Director of Fisheries concerned before fixing the rentals. Where there is a difference of opinion between the Collector and the Assistant Director of Fisheries, the Collector should refer the matter to the Board of Revenue and the Board should pass orders in the matter in consultation with the Director of Fisheries, if necessary.
(v) As soon as the lease is sanctioned, an agreement should be executed in the form prescribed in Appendix VIII. The lease shall ordinarily be sanctioned for the fasli fear in respect of river and perennial tank fisheries and for the calendar year in respect of non-perennial tank fisheries. The period of lease shall not exceed one year. If the lease is lobe granted for periods exceeding one year, the Collector should consult the Director of Fisheries and take orders from the Board of Revenue. Proposals for the renewal of lease or disposal otherwise shall be sent by (the Assistant Director of Fisheries concerned to the Collector two months in advance before the date of expiry of the current lease. [G.O. Ms. 3471. d. 27-11-63 = B.P. Press 2. d. 23-1-64]
(vi) A panchayat or a co-operative society cannot claim the lease of fisheries as a matter of right. The lease may be refused on adequate grounds like irregularities in working or financial unsoundness as reported by the administrative authorities concerned. The Collector or the authority concerned should, before refusing the lease on any such ground consult the District Panchayat Officer concerned in the case of Panchayat and the Deputy Registrar of Co-operative Societies concerned in the case of a co-operative society.
Notices of resales need not be published in the District Gazette unless the Collector thinks it necessary to do so for special reasons in respect of cases in which the original sale was published in the District Gazette. In other cases it is sufficient if the notice of the resale is sent to the village officers and published by beat of drum in the village where the fishery is situated, copies of the notice being sent at the same time to the Fisheries Department and to any persons likely to wish to bid including those who give their addresses to the selling Officer at the original sale. The selling Officer will also notify at the close of the day's sale, the date on which resales will be held, if any, are found by him to be necessary". [G.O. Ms. 1357, Rev., d. 14-6-41 = B.P. Press 75, d. 26-7-41]
4. Collection of rental in instalments:- The co-operative societies should be asked to deposit at least 25 per cent of the rental before orders granting the lease are issued. The balance alone should be permitted to be paid in instalments.
Proposals for the collection of the rentals in instalments should be submitted for the orders of the Government through the Board of Revenue in all cases and when permission is granted for the payment of the rental in instalments, in no case should any compensation payable to the local bodies be paid in any year until all the instalments of the fishery rental for that year have been completed.
The agreement should be got executed before the commencement of the lease period even if the orders of the Government permitting the societies to pay the balance of the rentals in instalments are not received. In such cases, the agreement might provide for the payment of the balance of the lease amount in such manner as the Government may direct.
5. Cancellation of lease. No Collector or other officer competent to give the lease of any fisheries should cancel it without the concurrence of the Director of Fisheries. [G.O.Ms. 3471, d. 27-11-63.]"
G.O.Ms.No.332, dated 17.11.1993 of the Animal Husbandary and Fisheries (FS IV) Department ABSTRACT INLAND FISHERIES I case of fishery rights in water spread tanks under the control of Public Works Department, Revenue Department and Panchayat Department in Public auction with priority of Inland Fish Farmers Development Agencies. Inland Marine Fishermen Co-op. Societies enhancement of lease period from one year to 5 years in all irrigation tanks uniformly for fish culture and lease of fishery rights proposal approval orders issued.
Read Again:
1.G.O.Ms.No.1749, Agri Department, dated 26.06.72.
2.G.O.Ms.No.1123, Forests and Fisheries Dept., dt. 10.12.76
3.G.O.Ms.No.735, Forests and Fisheries Dept., dt. 19.08.78
4.G.O.Ms.No.134, Forests and Fisheries Dept., dt. 07.02.80
5.G.O.Ms.No.1509, Forests and Fisheries Dept., dt. 28.12.81
6.G.O.Ms.No.1648, Rural Development and Land Administration Dept., dt. 08.11.83
7.G.O.Ms.No.673, Forests and Fisheries Dept., dt. 27.06.86
8.G.O.Ms.No.367, Rural Development Dept., dt. 03.05.90
9.G.O.Ms.No.394, Animal Husbandry and Fisheries Dept., dt. 29.06.91
10.Lr.No.203, Animal Husbandry and Fisheries Department, dated 30.06.92.
Read also:
1.From the Commissioner of Fisheries, Madras D.O.Lr.No.91/56258/91, dated 29.07.91, Lr.No.1321/K2/93, dt.19.03.1993 and
2.From the Director of Rural Development, Madras Lr.No.79275/91/98, dated 28.04.1992.
ORDER:
The Commissioner of Fisheries has submitted proposal that the annual lease of fishery rights in public auction in Panchayat Irrigation/Water Spread tanks may be enhanced to 10 years and that the Panchayat Unions may be authorised to auction the water spread tanks under this control, if the Inland Fish Farmers Development Agencies are not interested to take on lease the tanks reserved for them for doing fish culture. She has also suggested that auctioning the fish culture and fishing rights be done subject to the following conditions that the lessee should undergo a training in Fish culture with the Department of Fisheries and that the lessee should adhere to the advice tendered by Fisheries Department officials in regard to stocking conservancy and exploitation.
2. The Government have carefully examined the need for enunciating the policy regarding the lease period for public tanks for fisheries purpose. Revenue Department Standing Order No.211 and the Government Orders read above lay down the procedure by which Fisheries lease is given by concerned authorities, Revenue Department Standing Order 211 stipulated that fisheries in all public inland waters such as tanks, rivers, estuaries, canals, drains, etc., whether incharge of Revenue or Public Works or Rural Development or Fisheries Department should ordinarily be disposed of by lease.
3. As per Revenue Department Standing Order 211, while granting lease of fishing rights to the Cooperative Societies comprised of Fisherman or of Harijans engaged in fishing should be given the first opportunity. Auctioning of Fishery rights otherwise than by lease should be resorted to only if no Cooperative Societies of Fishermen or Harijans engaged in fishing or the Panchayats are not willing to take up the lease. The procedure envisaged in Revenue Department Standing Order 211 is still in vogue and will continue to operate in future with the modification indicated in para-4 below regarding the period of lease which will be quinquennial instead of annual.
4. (i) All fishery lease shall be for a period of 5 years. Annual leases should not be resorted to;
(ii) There will be an automatic escalation of the lease rent by 10% over the previous year's rate during this five year period. The bids will be taken for the base rate for the first year.
(iii) The leasee must follow the directions given by the Fisheries Department with regard to stocking management and exploitation of fish. He would also required to undergo a short period of training provided for by the Fisheries Department in this regard.
(iv) The Fisheries Department will depute officers as and when necessary to assist the other Departmental Officers to advise check and recommend such action as necessary for ensuing good fish cultural practices.
(v) The primary of the rights of irrigation to the irrigation related tanks will be recognised. The Fisheries development will be subordinated to such rights.
(vi) The Fisheries Department will be intimated in advance for the tanks to be offered for fishing rights auction assignment. That department will be responsible for generating adequate pumber of fingerlings of the required varieties in time.
(vii) A Schedule of discharges from the tank would be made available to the fisheries Department so that the fish cultural practice can be recommended in accordance with that any change including short term variations because of monsoonal vagaries would be intimated to the Fisheries Department at the earliest possible moment so that the cultural practices can be altered as required.
(viii) For large tanks initially and progressively for all tanks a standard management plan will be drawn up by Fisheries Department, incorporating suitable culture practices.
(ix) The lease would be terminable without compensation and with nothing more than a short simple notice for violation of good fishery cultural practices as prescribed.
(x) These restrictions should be applicable all tanks publically owned for all leases/assignments for fish farming/culture including these given on priority basis to these like Inland Fish Farmers Agencies/Fishermen/Marine Fishermen and Adi-Dravidar Welfare Co-op Societies Etc.,
(xi) The Collector of the District concerned shall continue to the leaser in respect of the tanks under his control.
5. The Director of Rural Development and Commissioner of Fisheries are requested to send necessary amendment proposals to fishery rights lease an licensing rules concerned to Government for approval. The Commissioner of Land Administration, Madras is the Revenue Department Standing Order 21 to Government in Revenue Department for approval early.
6. This order issues with the concurrence of the Public Works Department (U.O.No.55429/S2/93, dated 29.06.1993), Revenue Department (U.O.No.64746/d2/1993, dt. 11.10.1993), Rural Development (vide U.O.No.98121/All & F) Dept./93, dt.04.11.1993.
/BY ORDER OF THE GOVERNOR/ N.P.GUPTA SECRETARY TO GOVERNMENT
28. On the aspect of preference in granting lease of fishing rights to Co-operative Societies comprised of fishermen or of harijans engaged in fishing, let me consider some of the decisions of the Andhra Pradesh High Court with reference to rules therein, in force.
29. In Doddigunta Fishermen Co-operative Society Ltd., v. Doddigunta, rep., by its Secretary, V.Appa Rao v. The Venkatapuram Gram Panchayat, rep. by its Sarpanch and Executive Authority, Venkatapuram, Rangampet Taluk, E.G.District and others reported in 1984 (2) APLJ 268, the Andra Pradesh High Court has considered a similar case, where the Government of Andra Pradesh issued a G.O.Ms.No.343, Panchayat Raj Department, dated 10.04.1976, giving preference to the Fishermen Co-operative Societies, in the matter of lease of fishing rights. The Court held that the rules are mandatory. In that case, notice to the society, whether it was willing to take up the lease or not, was not given. Dealing with the above, the Andra Pradesh Court, at Paragraphs 7 and 8, held as follows:
"Two questions arise here. Firstly whether the rule is directory or mandatory and secondly whether there was any notice at all even orally. The rules relating to fishery rights were framed under G.O.Ms.No.343, Panchayat Raj Department, dated 10.4.1976 with a view to give preference to the Fishermen Co-operative Societies in the matter of fishing rights. These rules have a special purpose and the object is to help the backward sections of the Society. The Rules contemplate that they must be given the option to take the lease at the upset price, which is considered to be a reasonable price. The reason is that these Societies cannot afford to compete with others in open auctions. For achieving this object, Rule 3 (b) prescribes that option should be given to them by sending intimation by Registered Post with Acknowledgment Due to ensure effective service and to see that no manipulations are made. In fact in the draft rules there is no such provision. But, after considering the representations received this requirement was made. This indicates that after deliberation this clause was inserted to see that the intimation reaches the Societies. There is a further obligation namely that the Society must be asked to send their acceptance within fifteen days from the date of receipt of the intimation. Most of the members of these Fishermen Cooperative Societies are illiterate and they may just sleep over the matter in order to alert them these rules prescribe the mode of service and the contents of the intimation. In my view, therefore, these rules have to be complied with strictly, and any non- compliance will render the proceedings illegal. Therefore, I hold that Rule 3 (b) of the Rules as mandatory. (emphasis supplied) After considering the material on record and holding that notice to the society was not given, the High Court of Andra Pradesh High Court has set aside the auction.
30. In Rajaka Seva Sangham, Kanumolu, Gannavaram Taluk, Krishna District, represented by its President B. Ranga Rao and another v. The District Collector, (Panchayat Wing) Krishna Dist. Machilipatnam and another reported in 1987 (1) ALT 410, wherein learned judge has observed as follows:
"When once the tank is set apart for washing of the linen in the Gram Panchayat, it is mandatory under Rule 3 (a)(ii), that the fishing rights therein shall be leased out without public auction to the Washermen. Accordingly, having granted that right, the Gram Panchayat is devoid of jurisdiction to set apart the same to any other person."
31. In Gram Panchayat, Nakkabokkalapadu, Ballikuruva Mandal, Prakasam District, rep. by its Sarpanch Sri Pavuluri Subba Rao Vs. The Government of Andhra Pradesh, rep. by its Secretary to Government, Food and Agriculture, (Fish II Department, Hyderabad and others, reported in 1991 (III) A.L.T. 44, a Gram Panchayat within whose limits, a tank was situated, challenged an order extending the lease period for fishery rights in the tank, in favour of the society, the 4th respondent therein, as a special case in terms of G.O.Ms.No.776, Food and Agriculture (Fish-II) Department, dated 31.12.1990. By an order dated 27.03.1991, the 1st respondent therein cancelled the lease granted in favour of Gram Panchayat and awarded the same in favour of the Fishermen Co-operative Society. Perusal of the judgment shows that prior to G.O.Ms.No.776, Food and Agriculture (Fish-II) Department, dated 31.12.1990, grant of fishing rights in Konidena P.W.D. tank in Ballikurava Mandal of Prakasam District and other similar tanks were under the jurisdiction of Panchayat Raj Department of the 1st respondent and this was brought into effect by G.O.Ms.No.497, Food & Agriculture (Fish-II) Department, dated 27.06.1988, which also prescribed the guidelines for auctioning or leasing of fishing rights in the said tank. Subsequently, the Government issued G.O.Ms.No.776, Food and Agriculture (Fish-II) Department, dated 31.12.1990, by which, all the irrigation tanks under the control of the Panchayat Raj Department were brought back under the control of Fisheries Department. As regards the leasing of fishery rights in the irrigation tanks, the said G.O., provided as follows:-
"Procedure to be followed --
(a) The period of lease shall be three years, with an optional clause for extension for a further period of (2) years in the event of the Fishermen Co-operative Society making such a request provided they satisfy the rental conditions fixed by Government.
(b) While leasing, first preference should be given to the genuine fishermen Co-operative Socieities.
In case of absence of genuine Fishermen Co-operative Societies or unwillingness on the part of the identified Fishermen Co-opearative Society to take up exploitation at the rentals fixed, next preference should be given to Gram Panchayat/Municipality followed by public auction and departmental exploitation.
(c) The Collector of the district shall be the authority for fixing the rentals and he shall take into consideration the productivity of the water sources in consultation with the Fisheries Department. The confirmation of the rentals shall be by the authorities as indicated hereunder:-
Sl.No. Amount of lease/Auction bid amount Authority to confirm lease/Open auction 1 Rs.3,000/- and less Assistant Director of Fisheries 2 Rs.3,000/- to Rs.6,000/-
Revenue Divisional Officer of the concerned area 3 Rs.6,000/- and above.
District Collector
32. After the Collector's approval, the rentals of the tanks have to be communicated to the concerned Fishermen Co-operative Society and obtain their consent before 10.02.1991. In case, the Fishermen Co-operative Society is unwilling to take up exploitation at the rentals fixed, next preference should be given to Gram Panchayat/Municipality by 20-2-1991 followed by public Auction before 28-2-1991 by giving wide publicity. For the implementation of the said G.O., the Director of Fisheries, Andhra Pradesh, issued instructions to the Assistant Directors of Fisheries in his Circular Memo No.13823/C2/90 dated 16.01.1991. Paragraph 1 of the said circular requires the Assistant Director of Fisheries to formally take over the departmental tanks transferred from Zilla Praja Parishads before 20.01.1991 to facilitate disposal of the tanks at the earliest before the end of Fasli i.e., 30.06.1991. Paragraphs 3 and 4 of the said circular reiterate the procedure to be followed in the matter of leasing of fishery rights.
33. In the reported case, the Gram Panchayat relied on G.O.Ms.No.776, dated 31.12.1990 and contended that no claim was made by the Fishermen Co-operative Society, as its registration was suspended and that therefore, the petitioner panchayat was entitled for allotment of the fishery rights in the Konidena P.W.D tank, for three Fasli years 1400 to 1402. The 4th respondent society has defended the writ petition. After going through the material on record and taking into consideration the object behind the G.O.Ms.No.776, Food and Agriculture (Fish-II) Department, dated 31.12.1990, and the Circular Memo dated 16.01.1991 issued by the Director of Fisheries, Andhra Pradesh, dismissed the writ petition filed by Gram Panchayat. Perusal of the judgment shows that as there was a stay of the lease granted to the 4th respondent and consequently the 4th respondent society was prevented from exercising fishing rights, the Andhra Pradesh High Court was pleased to issue a direction to the respondents 1 to 3 therein, to extend the lease, in favour of the 4th respondent society and permit them to fish in Konidena P.W.D. Tank, Ballikurava Mandal of Prakasam District. Thus from the above judgment, it could be seen the decision of the Government to lease out fishing rights, in favour of the Co-operative Society of Fishermen has been upheld.
34. In Fishermen Co-operative Society Ltd., v. The District Collector, East Godavari reported in 1999 (4) ALD 270, while dealing with Rules 3 and 4 of the Andra Pradesh Gram Panchayat Rules, relating to leasing of Fishing Rights in Minor Irrigation Tanks and other sources, belong to or vested in Gram Panchayat and taking note of G.O.Ms.No.343, Panchayat Raj Department, dated 10.04.1976, the Andra Pradesh High Court has categorically held that if there is a Fishermen Co-operative Society, fishing rights shall have to be offered to the society alone. At paragraphs 15 and 17, the Court held as follows:
"15. A reading of Rules 3 and 4 makes it very clear that if there is Fishermen Co-operative Society and a tank or other source not reserved for washing purpose, the fishing rights shall have to be offered to the Fishermen Co-operative Society. If the Society fails to communicate their acceptance then only the fishing rights can be put to auction. Therefore, it is very clear that after taking possession of Lingala Cheruvu on 7-7-1997 under the rules, the 3rd respondent ought to have followed Rule 3(1) without any demur. In this case, the 3rd respondent has not followed the procedure and has not offered the fishing rights in Lingala Cheruvu to the Fishermen Co-operative Society which is illegal.
17. The contention on behalf of the respondents 3 and 4 cannot be appreciated. It is to be rejected. Admittedly, the 3rd respondent issued notice on 1-7-1998 and conducted auction on 9-7-1998. This itself is illegal. Because under Rule 3(b), the Executive Authority of Gram Panchayat shall send intimation to the Co-operative Society requesting them to give their acceptance before 15 days from the date of receipt of information. This is not done in this case. Secondly, the notice says that the society was requested to participate in the public auction and un-conditional offer giving lease of fishing rights in the tank was not given. This is also contrary to Rule 3(b). When an authority resorts to illegality, non-acceptance of the illegality, in my opinion, does not amount to waiver of the right. The other contention that the Executive Officer resorted to public auction under Rule 4, because there is no data as to the probable revenue is also without any basis. In this case admittedly the second respondent by his order dated 18-6-1998 fixed the upset price for fishing rights at Rs.1,10,000/-thereafter only the 3rd respondent sent letter on 1-7-1998 to the petitioner requesting them to participate in the public auction to be held on 19-7-1998. When the upset price fixed by tlie second respondent was available even by 18-6-1998, nothing prevented the 3rd respondent to offer fishing rights as per Rule 3(1) of the Rules. Therefore, the contention of the learned Counsel for the 3rd respondent and 4th respondent are rejected as unsustainable." (emphasis supplied)
35. Reverting back to the case on hand, material on record shows that earlier 25 persons, residents of Themmapuram Village Panchayat, Krishnagiri Taluk and members of Kaveripattinam Parvatharajakula Meenvar Kotturavu Sangam, Barur, filed a writ petition contending inter alia that they were periodically granted lease of fishery rights of a lake in Themmapuram Village Panchayat. They filed W.P.No.29944 of 2008, for a Mandamus, forbearing the respondents from cancelling or otherwise interfering with the lease vide order dated 13.07.2007. Mr.Velumani, Councilor and Ex-President of Thimmapuram Village, filed a Writ Petition in W.P.No.5568 of 2009, for a Writ of Certiorari, to quash the order passed by the second respondent therein, in proceedings No.Ko.2334/07/THA4/MI.Pa.Ka.Kri.Vattam/13, dated 13.07.2007, signed on 19.07.2007. Yet another writ petition, W.P.No.15727 of 2009 has been filed by one Mr.G.Govindhan of Thimmapuram Village, for a Mandamus, directing the Inspector of Fisheries/Special Officer, Kaveripattinam Parvatharajakula Meenavar Kootturavu Sangam, Barur, Krishnagiri District, 4th respondent therein, to remove respondents 5 to 7 from the membership of the 4th respondent society and consequently, to direct the competent authorities to take appropriate action against the 4th respondent for committing irregularities in maintaining the society. The said Mr.G.Govindan claimed to be a headman of Thimmapuram Village Panchayat. Since the above writ petitions involved the same issue of granting of lease of fishery rights, they were taken up together and disposed of by a common order.
Now let me consider the decision rendered in the above three writ petitions.
36. The facts culled out by this Court from the supporting affidavits filed in W.P.Nos.5568 and 15727 of 2009 are extracted hereunder:-
"According to the petitioners in W.P.5566 and 15727 of 2009, who claimed themselves as the representatives of the Thimmapuram and Sundakuppam villages, the Public Works Department used to lease out the fishing right in respect of Thimmapuram lake situated in a vast extent of about 360 acres, in favour of Co-operative Society, in which the fishermen of the above panchayats are members. The members used to pay the lease, amount collected from the above panchayats through the society and have taken the lease for a meagre sum. Then they used to sell away the right in auction in the panchayat. For the years 2005 to 2008, the said Society had taken the lease on behalf of its members with the fund of the above panchayat. and after that, the members, in whose favour the society cjranted fishing right entered into an agreement with the people of the above panchayat and sold their leasing rights in favour of a third party, viz., one Rathidevi, as was done for the past 25 years, for a sum of Rs.22,05,000/-. The income derived from the auction of the lake would be used for the betterment of the villagers. The panchayat of Thimmapuram has constructed a new school building, panchayat office building and a temple from and out of the income derived from the auction of the lake itself. Apart from that the villagers also had the benefit of the basic amenities such as pucca road, drinking water facility and also infrastructure facilities to the entire village. During the year 2005-2008, one Rathidevi was declared as the successful bidder for a period of three years and when the lease in favour of the said Rathi Devi was in force from 10.10.2005 to 10.10.2008, the 2nd respondent, in and by his Proceedings in Ko.2334/-7/THA4/HI.Pa.Ka.Kri.Vattam/13, dated 13.07.2007, signed on 19.07.2007, grant ad the lease for a period of five years from 2007-2008 to 2011-2012 in favour of the 4th respondent for a meagre sum of Rs.73,712/-.
4. It is the further case of the petitioners in W.P.Nos.5568 and 15727 of 2009 that the lease amount of Rs.73,712/- is very meagre when compared to the earlier lease amounts. Now, by remitting the lesser meagre lease amount, the members of the 4th respondent Society tried to occupy the lake and carry on the fishing operation. Further, the respondents failed to follow the mandatory requirements to conduct the lease, such as issuing the public notice, to create awareness among the public about the welfare of the villagers and to increase the revenue and bid amount. Hence, W.P.No.5568 of 2009 has been filed by the Councilor and Ex-President of the Thimmapuram Village and W.P.15727 of 2009 has been filed by one Govindan, the Village Head, alleging that respondents 5 to 7 in W.P.15727 of 2009 were admitted as members of the Kaveripattinam Parvatharajakula Meenavar Kootturavu Sangam only subsequent to the lease granted by the 2nd respondent in favour of the 4th respondent Sangam and the said respondents 5 to 7 are not belonging to the Meenavar community and if they continue to be the members of the 4th respondent Society, there is every possibility of committing irregularities and fraud in maintaining the society as well as the other members of the society. Hence, a direction has to be given to the 4th respondent, the Inspector of Fisheries and Special Officer, Kaveripatinam Parvatharajakula Meenavar Rootturavu Sangam, to remove respondents 5 to 7 from the membership of the 4th respondent society."
37. Mr.Velumani, Councillor and Ex-President of Thimmapuram village, the petitioner in W.P.No.5568 of 2009 and Mr.G.Govindan, Headman of Thuimmapuram Village, petitioner in W.P.No.15727 of 2009 have contended that new members have been admitted to Kaveripattinam Parvatharajakula Meenvar Kotturavu Sangam, Barur, only subsequent to the lease granted by the Executive Engineer, PWD, Upper Panniyar Vadinilakkottam, Dharmapuri, 2nd respondent therein and the petitioner in W.P.No.15727 of 2009 has sought for removal of the respondents 5 to 7 therein from the membership of the 4th respondent therein.
38. Facts culled out from W.P.No.29944 of 2008 filed by the members of the society extracted in paragraph 5 of the common order are as follows:-
"W.P.29944 of 2008 has been filed by the member a of the Society stating that after expiry of the earlier lease granted in favour of the said Rathi Devi, the rights of rearing fish in the Tahimmakulam lake has been granted to the petitioners and accordingly, all the petitioners have paid the lease amount of Rs.88,500/- and have become entitled to the fish rearing rights in the said lake for the period from 17.02.2008 to 30.06.2012. Since all the petitioners are having common leasehold fishing tights in the said lake till 2012 and are facing threats from the villagers of Thimmapuram, they approached this Court to restrain the authorities concerned from taking any steps towards cancelling or otherwise interfering with the lease dated 19.07.2007."
39. Perusal of the common order shows that it was the plea of the petitioners in both W.P.Nos.5568 and 15727 of 2009 that prior to the execution of the present lease deed dated 13.07.2007, an auction was conducted for the period between 10.10.2005 to 10.10.2008, wherein, one Mrs.Rathi Devi was declared as the successful bidder and that she had paid lease amount of Rs.22 lakhs. It is also the case of the petitioners therein that the amount collected from the said Mrs.Rathi Devi was utilised for the welfare or the panchayat. In support of the contention, a Muchalikka dated 10.10.2005, statement of accounts in the Ledger maintained by the Thimmapuram Village Panchayat have been brought to the notice of this Court.
40. Perusal of the common order also shows that it was the grievance of the petitioners therein that insofar as lease of fishery rights granted in favour of 4th respondent society therein is concerned, that the lease rent of Rs.73,712/- fixed was too meagre compared to the earlier lease amount. The petitioner in W.P.No.15727 of 2009 has also placed materials obtained under Right to Information Act, to prove that the respondents 5 to 7 were admitted as members of the society much later than the lease deed dated 13.07.2007 and signed on 19.07.2007.
41. Per contra, the petitioners in W.P.No.29944 of 2008, numbering 25, members of Kaveripattinam Parvatharajakula Meenavar Kootturavu Sangam, Barur, Krishnagiri District, have submitted that they eke-out their livelihood by engaging in fishing operations as well as through Agriculture and petty avocations in and around Thimmapuram Village Panchayat. They have further submitted that lease has been granted to them in terms of G.O.Ms.No.332, Animal Husbandary and Fisheries (FS IV) Department, dated 17.11.1993, and that the petitioners in W.P.Nos.5568 and 15727 of 2009 have adopted 'Katta Panchayat' with the help of political parties and rowdy elements and in this regard, they have filed W.P.No.21854 of 2008, in which, this Court had directed the Superintendent of Police to consider the complaint given by the members of the society and pass appropriate orders on merits. They have also submitted that Mr.Velumani, Councillor and Ex-President and Mr.Chinnaraji, husband of Mrs.Radhi Devi, have engaged in 'Katta Panchayat' pressurising the members of the society. The petitioners in W.P.No.29944 of 2008, members of Kaveripattinam Parvatharajakula Meenavar Kootturavu Sangam, Barur, Krishnagiri District, have placed reliance on the Revenue Standing Order No.211 and submitted that while granting lease of fishing rights, Co-operative Societies comprising of fishermen or of Harijans engaged in fishing or the Pachayats should be given the first priority. It is also their submission that if any Co-operative Societies comprising of fishermen or of Harijans engaged in fishing or the Pachayats are not willing to take up the lease, auction could be conducted. In the earlier writ petition, attention of this Court has also been invited to G.O.Ms.No.332, Animal Husbandary and Fisheries (FS IV) Department, dated 17.11.1993.
42. While adverting to the abovesaid rival contentions, and in particular to the contention of the members of the Kaveripattinam Parvatharajakula Meenavar Kootturavu Sangam, Barur, Krishnagiri District, that as per G.O.Ms.No.332, Animal Husbandary and Fisheries (FS IV) Department, dated 17.11.1993, lease has to be granted only to the Co-operative Societies comprising of fishermen or of Harijans engaged in fishing or the Pachayats, at paragraphs 12 and 13, this Court held as follows:-
"12. It is the case of the petitioners in W.P.No.5568 and 15727 of 2009 that in the earlier auction conducted during the period 2005-2008 the Panchayat had fetched the amount of Rs.22 lakhs and odd from one Radhidevi. When that being so, the present lease granted by the 2nd respondent in favour of the 4th respondent Society for a meagre sum, is nothing but an irregularity in granting the lease and therefore, fresh auction has to foe conducted. Per contra, it is the contention of the members of the 4th respondent Society that as per G.O.332, dated 17.11.1993, the lease was granted by the 2nd respondent and hence, no irregularities could be found in granting the lease and while granting the lease of fishing rights to the Co-operative societies comprising of Fishermen or of Harijans engaged in fishing should be given the first opportunity. The said G.O., was issued based on the Revenue Department Standing Order 211. Therefore, the petitioners in W.P.Nos.5538 and 15727 of 2009 have no locus standi to say that the lease granted by the 2"" respondent: in favour of the 4th respondent Society is illegal. In fact, in the last auction conducted during the year 2005, the fishing right was given only in favour of the society and the Society, in turn, has granted the fishing right by entering into an agreement with the Panchayat, which does not mean that on every occasion, the fishing right should be given in favour of the Panchayat.
13. Para 3 of G.O.Ms.No.322, Animal Husbandry and Fisheries (FS IV Department, dated 17.11.1993, states as follows:
"As per Revenue Department Standing Order 211 while granting lease of fishing rights to the Co-operative societies comprised of Fishermen or of Harijans engaged in fishing should be given the first opportunity. Auctioning of: fishery rights otherwise then by lease should be resorted to only if no Co- op. Societies of Fishermen or Harijana engaged in fishing or the Panchayats are not willing to take up the lease....... " It is clear from the above, the fishing right should be given to thi Society comprising of Fishermen and hence, no fault could be found in the present lease executed by the 2nd respondent in favour of the members of the 4th respondent Society. Since on an earlier occasion in the year 2005, the members have granted the fishing right in favour of the Panchayat, it does not mean that on every occasion the memberi of the Society can be compelled to grant the fishing right in favour of the Panchayat. Moreover, as contended by the learned senior counsel for the petitioners in W.P.No.29944 of 2008, the earliest lessee Rathi Devi, in whose favour the lease was executed, had not come forward to file a writ petition and on the other hand, one Velumani, who was an Ex-President and one Govindan, who was the Village Head, have filed the present writ petitions. Under such circumstances, I am of the considered opinion, that they have no locus stand to question the lease executed by PWD in favour of the Society."
43. As regards the contention of the petitioners in W.P.No.5568 and 15727 of 2009, claiming fishery rights to the panchayat under Section 132 of the Tamil Nadu Panchayats Act, this Court has categorically found that as no order had been brought to the notice of this Court to show that Thimmapuram lake was entrusted to the panchayat by PWD and therefore, held that there was no illegality in the action taken by the Executive Engineer. While upholding the action of the said authority, this Court has placed reliance on a decision made in W.P.No.18432 of 2006 in the case of The President, rep. by P.Maheswari, Illupilli Panchayat, Tiruchengode Taluk, Namakkal District, Vs. The District Collector, Namakkal District and others, wherein in a similar situation, this Court has held as follows:-
"8. The petitioner seeks this relief relying on Rule 2 of the Rules read with Appendix I and according to the petitioner, as per the said rule, the fishing right or irrigation sources which are entrusted to the Panchayat Union Council under Section 133(1) of the Tamil Nadu Panchayats Act, 1994 and maintained by them and non-provincialised water sources of the Public Works Department and, maintained by them can be enjoyed by the village panchayat. Now, as far as the case in hand is concerned, the Eri in question is Illupilli Eri and no order has been produced transferring the said Eri under Section 133(1) of the Tamil Nadu Panchayats Act, 1994, to the petitioner panchayat. On the other-hand, as per the Descriptive Memoirs of Irrigation Works, the said tank is with the Public Works Department. Further, it is the specific case of the respondent Public Works Department that the said tank is maintained by them and the income from the said tank is utilised for the maintenance of the said tank. Apart from this, it is not the case of the petitioner also that till the previous years, the fishery right of the said tank was exercised only by the petitioner Panchayat. As referred to above, the petitioner claims this relief on the ground that it is a non-provincialised water source of the Public Work's Department, If this is the ground on which the petitioner seeks the relief, the burden lies on the petitioner to prove that it is a non-provincialised water source. But, no document has been brought to the notice of this Court to the effect that tho tank in question is a non-provincialised water source of the Public Works Department and as referred to above, even no order has been brought to the notice of this Court by which the said tank has been entrusted to the said Panchayat. That apart, it is not even the case of the petitioner also that till the last year, the said right was exercised by the petitioner panchayat. Consequently, it can safely be presumed that the leasing out of the fishing right of the said tank is exercised only by the Public Works department. Though the Tamil Nadu Panchayats Act has come into force in 1994, for the past 14 years, since the tank belongs to the Public Storks Department and as per the Rules, the said right has been exercised by the Public Works Department. That apart, as per the Government Order, preference should be given only to the Co-operative Societies whose members are fishermen or Harijans and it is not disputed that the members of the fourth respondent come within this identification. Consequently, I am of the opinion that the petitioner has not made out a case to interfere with the order dated 09.07.2008 passed by the second respondent herein. Hence, the writ, petition stands dismissed. No costs. Consequently, connected M.Ps., are closed"
44. Thus it could be seen that when a Councillor and Ex-President in W.P.No.5568 of 2009 and Mr.G.Govindan, Headman of Thimmapuram Village Panchayat in W.P.No.15727 of 2009, alleged that the respondents 5 to 7 therein have been admitted as members of the society much later on to the date of execution of sale deed, this Court has categorically held that the petitioners therein have no locus standi to question the admission of the respondents 5 to 7 as members of the society. Per contra, the petitioner in W.P.No.29944 of 2008, members of Kaveripattinam Parvatharajakula Meenavar Kootturavu Sangam, Barur, Krishnagiri District, have contended that subscriptions for the respondents 5 to 7 therein had already been paid much earlier to the date of execution of the lease and that the admission of the said members was done later on. However, having regard to the disputed question of fact, this Court did not delve into the said aspect, but categorically held that the headman of Thimmapuram Village Panchayat, the petitioner in W.P.No.15727 of 2009 has no locus standi to question the admission of respondents 5 to 7, as members of the society.
45. Thus it could be seen that when Mr.Velumani Councillor and Ex-President of Thimmapuram Village Panchayat and Mr.G.Govindhan, Headman of Thimmapuram Village Panchyat have questioned the lease of fishery rights to 4th respondent society therein, on the grounds stated supra, this Court after taking note of G.O.Ms.No.332, Animal Husbandary and Fisheries (FS IV) Department, dated 17.11.1993, and the earlier decision of this Court in W.P.No.18432 of 2006 in the case of The President, rep. by P.Maheswari, Illupilli Panchayat, Tiruchengode Taluk, Namakkal District, Vs. The District Collector, Namakkal District and others and also of the fact that there was no Government Order entrusting the lake to Thimmapuram panchayat by PWD, answered all the points raised by the petitioners therein, on merits as well as on the locus standi of the petitioners therein to question the action granting fishery rights to the society. This court has also made it clear that G.O.Ms.No.332 dated 17.11.1993, has been issued on the basis of Revenue Standing Order No.211 and that though, on an earlier occasion, when auction was conducted during 2005, fishing rights was given only in favour of the society and that the said society had entered into an agreement with the panchayat and that the abovesaid action, does not mean that on every occasion, fishing rights should be given only in favour of the panchayat. The aspect One Smt.Rathi Devi, declared as the successful bidder on the previous auction, had also been taken note of by this Court.
46. The submissions made in this writ petition by the Vice President of Thimmapuram Village Panchayat for the betterment of the village, is nothing but the replica of the earlier writ petitions. Earlier, when the Councillor and Ex-President filed W.P.No.5568 of 2009, he had claimed that he was holding the post of Councillor for the Village Panchayat of Thimmapuram and served as a President of the said village. Mr.Govindan in his writ petition in W.P.No.15727 of 2009, has stated that he was a Village Headman for Thimmapuram Village Panchayat, and as such, he was well acquainted with the facts of this case. The averments and the submissions advanced by the petitioners therein on behalf of the village and the present writ petition filed by the Vice President of Thimmapuram Village Panchayat are one and the same. As rightly contended by Mr.G.Masilamani, Learned Senior Counsel that though Mr.Velumani, Councillor and Ex-President sought for a Writ or Certiorari, to quash the order dated 13.07.2007 signed on 19.07.2007 of the Executive Engineer, PWD, Upper Panniyar Vadinilakkottam, Dharmapuri, 2nd respondent therein, this Court has declined to quash the order and thus it has become final. Again when the Headman of Thimmapuram Village Panchayat filed W.P.No.15727 of 2009 alleging inclusion of certain members and consequently, prayed for a Mandamus to direct the competent authority to take action against the Inspector of Fisheries/Special Officer, Kaveripattinam Parvatharajakula Meenavar Kootturavu Sangam, Barur, Krishnagiri District, to remove them from the society, this Court has declined to grant relief. On the contra, when the members of Kaveripattinam Parvatharajakula Meenavar Kootturavu Sangam, Barur, Krishnagiri District, filed W.P.No.29944 of 2008, seeking to forbear the official respondents therein from taking any steps to cancel or otherwise to interfere with the lease granted to the Sangam on 13.07.2007 for 5 years from 2007-08 to 20.11.2012, by observing that when the lease was validly granted in favour of the members of the society and the records as well as arguments prove that the official respondents 1 to 3 therein had no intention to cancel the lease, this Court observed that there was no need to entertain any prayer for Mandamus.
47. The writ petitions filed by Mr.Velumani, Counsilor or Ex-President of Thimmapuram Village Panchayat and Mr.G.Govindan, Headman of the said Village, cannot be said for the redressal of personal grievance. It is also candidly admitted by the Vice President of the Panchayat in the present writ petition. The facts in the above writ petitions were only with reference to fishing rights of the Panchayat. The present writ petition is also for the same purpose, except with an additional prayer for a Mandamus, and instead of a member of the Village or the Council, the Village Panchayat itself has filed the writ petition, claiming fishing rights. Even though the parties are different, the cause of action, subject matter, issues, relief sought for, the reason for filing the writ petitions, the object sought to he achieved, the inter-se dispute between the panchayat and the co-operative society, in the matter of lease of fishing rights of Thimmapuram Lake, are all similar. The issues have been directly and substantially adjudicated between the society and the members of the village Panchayat.
48. Res-judicata means, "a thing adjudicated". It is the law of the land that res judicata debars the Court from exercising its jurisdiction to determine the lis, if finality had already been arrived at by the Court previously, with reference to the same facts and issues, between the parties. Some of the decisions of the Apex Court on the principles of Res judicata are considered and applied to the facts of this case.
(i) In Darayo Vs. State of U.P, reported in AIR 1961 SC 1457, the Supreme Court at paragraphs 9 and 10, held as follows:-
9. But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.
10. In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William B. Hale in the leading Duchess of Kingston case. Said Sir William B. Hale from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose. As has been observed by Halsbury, the doctrine of res judicata is not a technical doctrine applicable only to records;' it is a fundamental doctrine of all courts that there must be an end of litigation. Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a Court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause (p. 187, paragraph 362). Res judicata, it is observed in Corpus Juris, is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause nemo debet bis vexari pro eadem causa. In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel. Estoppel rests on equitable principles and res judicata rests on maxims which are taken from the Roman Law. Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Article 32 cannot be accepted.
(ii) In Devilal Modi v. State Tax Officer, Ratlam and others reported in AIR 1965 SC 1150, the short question which arose in the appeal was whether the principle of constructive res judicata can be invoked against a writ petition filed by the appellant Devilal Modi, who is the Proprietor of M/s. Daluram Pannalal Modi, under Art. 226 of the Constitution. The appellant therein had been assessed to sales- tax for the year 1957-58 under the Madhya Bharat Sales Tax Act, 1950. He challenged the validity of the said order of assessment by a writ petition filed by him (No. 114/1961) in the High Court of Madhya Pradesh on the 25th April, 1961. The High Court dismissed his writ petition and by special leave, the appellant approached the Supreme Court in appeal against the said decision of the High Court. On the 8th March, 1963, the appellant's appeal by special leave was also dismissed by the Apex Court. Thereafter, the appellant filed the another writ petition in the same High Court on the 23rd April, 1963 (No. 129/1963). By this writ petition the appellant challenged the validity of the same order of assessment. The High Court considered the merits of the additional grounds urged by the appellant and rejected them. In the result, this second writ petition filed by the appellant was also dismissed by the High Court on the 29th April, 1963. It is against this decision that the appellant once again approached the Supreme Court by a special leave; and that gave rise to a question, as to whether it was open to the appellant therein to challenge the validity of the same order of assessment twice by two consecutive writ petitions under Art. 226. In the above reported case, additional grounds were urged in the subsequent writ petition. Though the judgment was in respect of the same parties, yet the principles laid down by the Supreme Court on constructive resjudicata, is worth reproduction, "The present proceedings illustrate how a citizen who has been ordered to pay a tax can postpone the payment of the tax by prolonging legal proceedings interminably. We have already seen that in the present case the appellant sought to raise additional points when he brought his appeal before this Court by special leave; that is to say, he did not take all the points in the Writ petition and thought of taking new points in appeal. When leave was refused to him by this Court to take those points in appeal, he filed a new petition in the High Court and took those points, and finding that the High Court had decided against him on the merits of those points, he has come to this Court; but that is not all. At the hearing of this appeal, he has filed another petition asking for leave from this Court to take some more additional points and that shows that if constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That' clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata."
(iii) In State of U.P. Vs. Nawab Hussain, reported in 1977 (2) SCC 806, the Supreme Court at paragraphs 3, 4 and 7, held as follows:-
3. The principle of estoppel per rem judicatam is a rule of evidence. As has been stated in Marginson v. Blackburn Borough Council, reported in (1939) 3 KB 426, it may be said to be the broader rule of evidence which prohibits the reassertion of a cause of action. This doctrine is based on two theories: (i) the finality and conclusiveness of judicial decisions for the final termination of disputes in the general interest of the community as a matter of public policy, and (ii) the interest of the individual that he should be protected from multiplication of litigation. It therefore serves not only a public but also a private purpose by obstructing the reopening of matters which have once been adjudicated upon. It is thus not permissible to obtain a second judgment for the same civil relief on the same cause of action, for otherwise the spirit of contentiousness may give rise to conflicting judgments of equal authority, lead to multiplicity of actions and bring the administration of justice into disrepute. It is the cause of action which gives rise to an action, and that is why it is necessary for the courts to recognise that a cause of action which results in a judgment must lose its identity and vitality and merge in the judgment when pronounced. It cannot therefore survive the judgment, or give rise to another cause of action on the same facts. This is what is known as the general principle of res judicata.
4. But it may be that the same set of facts may give rise to two or more causes of action. If in such a case a person is allowed to choose and sue upon one cause of action at one time and to reserve the other for subsequent litigation, that would aggravate the burden of litigation. Courts have therefore treated such a course of action as an abuse of its process and Somervell, L.J., has answered it as follows in Greenhalgh v. Mallard, reported in (1947) All F.R. 255:
I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. This is therefore another and an equally necessary and efficacious aspect of the same principle, for it helps in raising the bar of res judicata by suitably construing the general principle of subduing a cantankerous litigant. That is why this other rule has some times been referred to as constructive res judicata which, in reality, is an aspect or amplification of the general principle."
7. .....The question which specifically arose for consideration was whether the principle of constructive res judicata was applicable to writ petitions of that kind. While observing that the rule of constructive res judicata was in a sense a somewhat technical or artificial rule prescribed by the Code of Civil Procedure, this Court declared the law in the following terms:
This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred. While taking that view, Gajendragadkar, C.J., tried to explain the earlier decision in Amalgamated Coalfields Ltd. v. Janapada Sdbha, Chhindwara and categorically held that the principle of constructive res judicata was applicable to writ petitions also. As has been stated, that case was brought to the notice of the High Court, but its significance appears to have been lost because of the decisions in Janakirama Iyer v. P.M. Nilakanta Iyer, reported in AIR 1962 SC 633 = 1962 Supp (1) SCR 206 and Gulabchand case. We have made a reference to the decision in Janakirama Iyer case which has no bearing on the present controversy, and we may refer to the decision in Gulabchand case as well. That was a case where the question which specifically arose for consideration was whether a decision of the High Court on merits on a certain matter after contest, in a writ petition under Article 226 of the Constitution, operates as res judicata in a regular suit with respect to the same matter between the same parties. After a consideration of the earlier decisions in England and in this country, Raghubar Dayal, J., who spoke for the majority of this Court, observed as follows:
These decisions of the Privy Council well lay down that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision in a proceeding operating as res judicata in a subsequent suit with respect to the same matter inter parties, and do not preclude the application to regular suits of the general principles of res judicata based on public policy and applied from ancient times. He made a reference to the decision in Daryao v. State of U.P., AIR 1961 SC 1457 = 1962 (1) SCJ 702, on the question of res judicata and the decisions in Amalgamated Coalfields Ltd. v. Janapada Sabha Chhindwara and Devilal Modi case6 and summarised the decision of the Court as follows:
As a result of the above discussion, we are of opinion that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial. He however went on to make the following further observation:
We may make it clear that it was not necessary, and we have not considered whether the principles of constructive res judicata can be invoked by a party to the subsequent suit on the ground that a matter which might or ought to have been raised in the earlier proceeding was not so raised therein. It was this other observation which led the High Court to take the view that the question whether the principle of constructive res judicata could be invoked by a party to a subsequent suit on the ground that a plea which might or ought to have been raised in the earlier proceeding but was not so raised therein, was left open. That, in turn, led the High Court to the conclusion that the principle of constructive res judicata could not be made applicable to a writ petition, and that was why it took the view that it was competent for the plaintiff in this case to raise an additional plea in the suit even though it was available to him in the writ petition which was filed by him earlier but was not taken. As is obvious, the High Court went wrong in taking that view because the law in regard to the applicability of the principle of constructive res judicata having been clearly laid down in the decision in Devilal Modi case, it was not necessary to reiterate it in Gulabchand case as it did not arise for consideration there. The clarificatory observation of this Court in Gulabchand case was thus misunderstood by the High Court in observing that the matter had been left open by this Court."
(iv) In Jaswant Singh and another Vs. Custodian of Evacuee Property, New Delhi, reported in 1985 (3) SCC 648, at paragraph 14, the Supreme Court held as follows:-
In order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) forum or the competence of the court, (ii) parties and the representatives, (iii) matters in issue, (iv) matters which ought to have been made ground for defence or attack in the former suit and (v) the final decision.
In order that a defence of res judicata may succeed it is necessary to show that not only the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the former proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings. A cause of action for a proceeding has no relation whatever to the defence which may be set up, nor does it depend upon the character of the relief prayed for by the plaintiff or the applicant. It refers entirely to the grounds set forth in the plaint or the application as the case may be as the cause of action or in other words to the media upon which the plaintiff or the applicant asks the court to arrive at a conclusion in his favour.
(v) In Ferro Alloys Corporation Ltd., and another, Vs. Union of India and others, reported in 1999 (4) SCC 149, at paragraphs 27 and 28, the Supreme Court held as follows:-
"27.......... It is obvious that in order to attract the bar of Explanation IV to Section 11 CPC and before it can be held that any subsequent contention on the point can be treated to be hit by the bar of constructive res judicata, it has to be seen whether such a contention might and ought to have been made the ground of defence or attack in such former proceedings.
28. It is no doubt true that the principle of constructive res judicata can be invoked even inter se the respondents, but it is well settled that before any plea by the contesting respondents could be said to be barred by constructive res judicata in future proceedings inter se such contesting respondents, it must be shown that such a plea was required to be raised by the contesting respondents to meet the claim of the appellant in such proceedings. If such a plea is not required to be raised by the contesting respondents with a view to successfully meet the case of the appellant, then such a plea inter se the contesting respondents would remain in the domain of independent proceedings giving an entirely different cause of action inter se the contesting respondents with which the appellants would not be concerned. Such pleas based on independent causes of action inter se the respondents cannot be said to be barred by constructive res judicata in the earlier proceedings where the lis is between the appellants on the one hand and all the contesting respondents on the other.
(vi) In Rajendra Kumar Vs. Kalyan (Dead) By LRS, reported in 2000 (8) SCC 99, the Supreme Court at paragraphs, 14 and 16 to 22, held as follows:-
14. The doctrine of res judicata has received a statutory sanction in the Code as a matter of prudence and to give due weightage to a finding or a decision so as to reach a finality in the matter of a dispute between the same parties or litigating under the same parties. The doctrine thus is to achieve finality of dispute between the parties being a principle of prudence so as to give efficacy to a finding of the court rather than permit the parties to go to trial more or less on the same issues over again and thus introducing a possibility of conflict of views. Judicial verdict has its special sanctity and cannot be the subject-matter of discussion at any future time involving identical or similar issues. The facts in issue is one where more than one attempt has been made to establish a fact and in every attempt that particular fact stands negated.
16. The 1976 amendment to the Code and the introduction of Explanations VII and VIII clarify the dual objective as noticed above. The objection howsoever technical it may be, ought not to outweigh the reasonableness of the doctrine. Raghubar Dayal, J. speaking for the majority view in off, cited Gulabchand case (Gulabchand Chhotalal Parikh v. State of Gujarat, reported in AIR 1965 SC 1153 = 1965 (2) SCR 547 in paras 60 and 61) observed:
As a result of the above discussion, we are of opinion that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject-matter. The nature of the former proceeding is immaterial.
We do not see any good reason to preclude such decisions on matters in controversy in writ proceedings under Articles 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest. We, therefore, hold that, on the general principle of res judicata, the decision of the High Court on a writ petition under Article 226 on the merits on a matter after contest will operate as res judicata in a subsequent regular suit between the same parties with respect to the same matter.
17. The doctrine of res judicata or constructive res judicata predominantly is a principle of equity, good conscience and justice. It would neither be equitable nor fair nor in accordance with the principles of justice that the issue concluded earlier ought to be permitted to be raised later in a different proceeding."
(vii) In K.Vidya Sagar Vs. State of U.P. and others, reported in 2005 (5) SCC 581, the Supreme Court at paragraphs 8 to 10, held as follows:-
8. As mentioned earlier the petitioner had filed a writ petition under Article 226 of the Constitution before the Allahabad High Court seeking virtually the same reliefs, which have been sought in the present writ petition. The High Court dismissed the writ petition on the ground that the questions raised were all disputed questions of fact, which could not be adjudicated in a writ petition under Article 226 of the Constitution. The High Court further observed that the petitioner could approach the civil or criminal court or any other authority for this purpose. In the special leave petition preferred against the decision of the High Court it was observed in the order dated 13-8-1999 that it was not appropriate for this Court to examine the rival contentions which raised disputed questions of fact and the said questions were left open. It was further observed that whatever other grievances remain in spite of the report of CBI, so far as the petitioner is concerned, he may ventilate the same in accordance with law.
9. In Virudhunagar Steel Rolling Mills Ltd. v. Govt. of Madras it was held that where a writ petition under Article 226 of the Constitution is disposed of on merits and the order of dismissal of the petition is a speaking order that would amount to res judicata and would bar a petition under Article 32 of the Constitution on the same facts irrespective of whether notice was issued to the other side or not before such a decision was given. In T.P. Moideen Koya v. Govt. of Kerala the entire law regarding bar of res judicata was reviewed and it was held that a decision rendered by this Court in proceedings under Article 136 of the Constitution, which has attained finality would bind the parties and the same issue cannot be reagitated or reopened in a subsequent petition under Article 32 of the Constitution.
10. This being the settled position of law, the reliefs claimed by the petitioner in the present petition under Article 32 of the Constitution cannot be granted as he had claimed the same reliefs in the writ petition, which was filed under Article 226 of the Constitution in the Allahabad High Court, which was dismissed and the special leave petition preferred against the said decision was disposed of by this Court with a direction that he may ventilate the same in accordance with law.
(viii) In Ramadhar Shrivas Vs. Bhagwandas, reported in 2005 (13) SCC 01, the Supreme Court, at paragraphs 19, and 20 to 22, held as follows:-
19. In Pawan Kumar Gupta Vs. Rochiram Nagdeo, reported in 1999 (4) SCC 243, a suit filed by the plaintiff against the defendant was dismissed by the Court but the Court negatived the contention of the defendant that the plaintiff was not the real owner of the suit property. The Court recorded a finding that the plaintiff was the absolute owner. In a subsequent suit by the plaintiff against the defendant, this Court held that an issue as to the title of the property was directly and substantially in issue between the parties in a former suit and decided in favour of the plaintiff. Such finding, ruled this Court, would operate as res judicata in a subsequent suit against the defendant.
20. The Court observed [1999 (4) SCC 243]: (SCC p. 249, para 16) 16. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which has been directly and substantially in issue in a former suit between the same parties, and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed.
21. In our opinion, the learned counsel for the appellant is also right in submitting that the rule of constructive res judicata applies to the present case. The expression matter in issue under Section 11 of the Code of Civil Procedure, 1908 connotes the matter directly and substantially in issue actually or constructively. A matter is actually in issue when it is in issue directly and substantially and a competent court decides it on merits. A matter is constructively in issue when it might and ought to have been made a ground of defence or attack in the former suit. Explanation IV to Section 11 of the Code by a deeming provision lays down that any matter which might and ought to have been made a ground of defence or attack in the former suit, but which has not been made a ground of defence or attack, shall be deemed to have been a matter directly and substantially in issue in such suit.
22. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided. The object of Explanation IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence in one and the same suit. (Vide Nirmal Enem Horo v. Jahan Ara Jaipal Singh, reported in 1973 (2) SCC 189 = AIR 1973 SC 1406, Jaswant Singh v. Custodian of Evacuee Property, reported in 1985 (3) SCC 648 = AIR 1985 SC 1096 = 1985 Supp (1) SCR 331, Forward Construction Co. v. Prabhat Mandal (Regd.) reported in 1986 (1) SCC 100 = AIR 1986 SC 391 = 1985 Supp (3) SCR 766, Direct Recruit Class II Engg. Officers' Assn. v. State of Maharashtra, reported in 1990 (2) SCC 715 = 1990 SCC (L&S) 339 = AIR 1990 SC 1607 and Vijayan v. Kamalakshi, reported in 1994 (4) SCC 53)."
(ix) In State of Haryana v. M.P.Mohla reported in 2007 (1) SCC 457, the Supreme Court held as follows:
"A judgment must be read in its entirety. The judgment of a court must also be implemented. But what would be the effect of a judgment must be considered from the reliefs claimed in the writ petition as also the implications thereof which has to be deciphered from reading the entire judgment. A judgment may also have to be read on the touchstone of pleadings of the parties. (Para 19) A dispute between the parties once adjudicated must reach its logical conclusion. If a specific question which was not raised and which had not been decided by the High Court the same would not debar a party to agitate the same at an appropriate stage, subject, of course, to the applicability of principles of res judicata or constructive res judicata. If a subsequent cause of action has arisen in the matter of implementation of a judgment, a fresh writ petition may be filed, as a fresh cause of action has arisen. (Paras 22 and 23)
(x) In Raghavendra Rao Vs. State of Karnataka, reported in 2009 (4) SCC 635, at paragraph 13, the Supreme Court held as follows:-
13. .........The claim of the appellants is, thus, barred under the principles of res judicata/constructive res judicata, the earlier judgment having attained finality. It is now a well-settled principle of law that the principle of res judicata applies also to the writ proceedings.
(xi) In M.Nagabhushana v. State of Karnataka reported in 2011 (3) SCC 408, the Supreme Court has extensively considered the foundation and history of doctrine of res-judicata. Paragraphs 12, 13, 17, 19 to 24, held as follows:
"12. The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest.
13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.
17. It may be noted in this context that while applying the principles of Res Judicata the Court should not be hampered by any technical rules of interpretation. It has been very categorically opined by Sir Lawrence Jenkins that:
"the application of the rule by Courts in India should be influenced by no technical considerations of form but by matter of substance within the limits allowed by law"
[See Sheoparsan Singh Vs. Rammanandan Prasad Singh, (1916) 1 I.L.R. 43 Cal. 694 at page 706 (P.C.)].
19. A Constitution Bench of this Court in Devilal Modi Vs. Sales Tax Officer, Ratlam and Ors. - AIR 1965 SC 1150, has explained this principle in very clear terms:
"But the question as to whether a citizen should be allowed to challenge the validity of the same order by successive petitions under Art. 226, cannot be answered merely in the light of the significance and importance of the citizens' fundamental rights. The general principle underlying the doctrine of res judicata is ultimately based on considerations of public policy. One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one should be made to face the same kind of litigation twice over, because such a process would be contrary to considerations of fair play and justice (vide: Daryao Vs. State of U.P., 1962-1 SCR 575; (AIR 1961 SC 1457)"
20. This Court in All India Manufacturers Organisation (supra) explained in clear terms that principle behind the doctrine of Res Judicata is to prevent an abuse of the process of Court. In explaining the said principle the Bench in All India Manufacturers Organisation (supra) relied on the following formulation of Lord Justice Somervell in Greenhalgh Vs. Mallard - (1947) 2 All ER 255 (CA):
"39. .......I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them."
The Bench in All India Manufacturers Organisation (supra) also noted that the judgment of the Court of Appeal in "Greenhalgh" was approved by this Court in State of U.P. Vs. Nawab Hussain - (1977) 2 SCC 806 at page 809, para 4.
21. Following all these principles a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers' Assn. Vs. State of Maharashtra - (1990) 2 SCC 715 laid down the following principle:
"......an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had decided as incidental to or essentially connected with subject matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We, accordingly hold that the writ case is fit to be dismissed on the ground of res judicata."
22. In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of Constructive Res Judicata, as explained in explanation IV to Section 11 of the CPC, are also applicable to writ petitions.
23. Thus, the attempt to re-argue the case which has been finally decided by the Court of last resort is a clear abuse of process of the Court, regardless of the principles of Res Judicata, as has been held by this Court in K.K. Modi Vs. K.N. Modi and Ors. - (1998) 3 SCC 573. In paragraph 44 of the report, this principle has been very lucidly discussed by this Court and the relevant portions whereof are extracted below:
"44. One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagitation may or may not be barred as res judicata."
24. In coming to the aforementioned finding, this Court relied on the Supreme Court Practice 1995 published by Sweet and Maxwell. The relevant principles laid down in the aforesaid practice and which have been accepted by this Court are as follows:
"43. ....This term connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. ... The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material."
49. The maxim "Interest rei publicaeut sit jinis litum" squarely applies to this case.
50. The contention that the Panchayat had bona fidely believed that fishing rights would be given to them as done in the past, cannot be accepted for the reason, that it has no existing right to claim first preference of lease of fishing rights and therefore, at no stretch of imagination, it can be placed on the same pedestal as that of the Society, which has got a preference over the Panchayats.
51. As rightly contended by the Learned Senior Counsel that Section 132 of the Tamil Nadu Panchayats Act, 1994, has no application to the case on hand. It applies to a case, where the Government have declared that the fishing rights in respect of lakes, under the control of the Public Works Department, are vested in panchayats by passing a specific order, subject to the conditions therein and then only, the Panchayats can claim any exclusive right over any lake. There is no such order and consequently, there is no vesting of the lake with the Panchayat. Mandamus can be sought for, if only the petitioner establishes an existing right.
(i) In The State of Orissa Vs. Madan Gopal Rungta, reported in AIR 1952 SC 12, the Supreme Court at paragraph 5, held that, "The language of the Article shows that the issuing of writs or directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Article 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the court under this Article.
(ii) In Mani Subrat Jain and others Vs. State of Haryana and others, reported in 1977 (1) SCC 486, the Supreme Court at paragraph 9, held as follows:-
"9. The High Court rightly dismissed the petitions. It is elementary though it is to be restated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to do something or to abstain from doing something. (See Halsbury's Laws of England, 4th Edn., Vol. I, para 122; State of Haryana v. Subash Chander Marwaha; Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed and Ferris : Extraordinary Legal Remedies, para 198.)"
(iii) In State of Orissa Vs. Ram Chandra, reported in AIR 1964 SC 685, the Supreme Court at paragraph 8, has held as follows:-
"8. On the merits, the position is absolutely clear. Under Article 226 of the Constitution, the jurisdiction of the High Court is undoubtedly very wide. Appropriate writs can be issued by the High Court under the said article even for purposes other than the enforcement of the fundamental rights and in that sense, a party who invokes the special jurisdiction of the High Court under Article 226 is not confined to cases of illegal invasion of his fundamental rights alone. But though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226. The narrow question which falls for our decision in the present appeals is whether the respondents can be said to have proved any legal right in respect of the properties of which they apprehended they would be dispossessed by the appellant."
52. It is not for the interest of the panchayat administration or to its coffers, fishing rights are granted, nor it could be said that fishing rights are the property of the panchayat. The policy of the Government in G.O.Ms.No.332, Animal Husbandary and Fisheries (FS IV) Department, dated 17.11.1993, could be inferred from the G.O., itself that when a proposal was sent by the Commissioner of Fisheries relating to lease of fishery rights, the Government after careful examination of the need for enunciating the policy regarding the lease period for fisheries purposes, and taking note of the Revenue Department Standing Order No.211 and the procedure by which fisheries lease is granted in all public inland fisheries, such as water spread tanks, rivers, estuaries, canals, drains, etc., whether incharge of Revenue or Public Works or Rural Development or Fisheries Department, should ordinarily be disposed of by lease. After considering the Revenue Standing Order No.211, at paragraph 3 of the said G.O., the Government have stated that as per Revenue Department Standing Order No.211, while granting lease of fishing rights to the Co-operative Societies comprises of fishermen or of harijans engaged in fishing should be given first priority. Auctioning of fishery rights otherwise than by lease should be resorted to only if no Co-operative Societies of Fishermen or Harijans engaged in fishing or the Panchayats are not willing to take up the lease. The procedure envisaged in Revenue Department Standing Order No.211 is still in vogue and will continue to operate in future with the modification indicated in paragraph 4 below regarding the period of lease which will be quinquennial instead of annual. Paragraph 4 is also extracted hereunder:-
"4. (i) All fishery lease shall be for a period of 5 years. Annual leases should not be resorted to;
(ii) There will be an automatic escalation of the lease rent by 10% over the previous year's rate during this five year period. The bids will be taken for the base rate for the first year.
(iii) The leasee must follow the directions given by the Fisheries Department with regard to stocking management and exploitation of fish. He would also required to undergo a short period of training provided for by the Fisheries Department in this regard.
(iv) The Fisheries Department will depute officers as and when necessary to assist the other Departmental Officers to advise check and recommend such action as necessary for ensuing good fish cultural practices.
(v) The primary of the rights of irrigation to the irrigation related tanks will be recognised. The Fisheries development will be subordinated to such rights.
(vi) The Fisheries Department will be intimated in advance for the tanks to be offered for fishing rights auction assignment. That department will be responsible for generating adequate pumber of fingerlings of the required varieties in time.
(vii) A Schedule of discharges from the tank would be made available to the fisheries Department so that the fish cultural practice can be recommended in accordance with that any change including short term variations because of monsoonal vagaries would be intimated to the Fisheries Department at the earliest possible moment so that the cultural practices can be altered as required.
(viii) For large tanks initially and progressively for all tanks a standard management plan will be drawn up by Fisheries Department, incorporating suitable culture practices.
(ix) The lease would be terminable without compensation and with nothing more than a short simple notice for violation of good fishery cultural practices as prescribed.
(x) These restrictions should be applicable all tanks publically owned for all leases/assignments for fish farming/culture including these given on priority basis to these like Inland Fish Farmers Agencies/Fishermen/Marine Fishermen and Adi-Dravidar Welfare Co-op Societies Etc.,
(xi) The Collector of the District concerned shall continue to the leaser in respect of the tanks under his control."
53. Perusal of the averments in the supporting affidavit shows that it is the admitted case of the petitioner that as per Para 4(xi) of G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993, the District Collector is the lessor, in respect of tanks under his control. While that be the case, the contentions of the petitioner that the Panchayat is vested with fishing rights, is contrary to his own pleadings and the abovesaid G.O.
54. In the light of the object of the G.O., the question of conducting an auction arises only when both the Society in the first instance and the Panchayat, thereafter, do not come forward to take up the lease of fishing rights of any lake under the control of the Public Works Department. The contention that the petitioner is now willing to offer an higher amount than the one determined by the Public Works Department, to lease out the fishing rights to the Society, is untenable.
55. Perusal of the Government Order also makes it clear that the object of the Government state is to grant fishing rights to the Co-operative Societies comprises of fishermen or of harijans engaged in fishing. Preferential right has been given only to the abovesaid society. If the said society is not willing to take up the lease, the next in order of priority is the panchayat. Fishing rights to the abovesaid societies or panchayats should ordinarily be disposed of only by lease. Only in the case of unwillingness on the part of the Co-operative Societies comprised of fishermen or of Harijans engaged in fishing or the panchayats to take up the lease, auctioning of fishery rights should be made. Thus as rightly contended by Mr.G.Masilamani, Learned Senior Counsel, panchayats do not stand on equal footing with Co-operative Societies in the matter of granting lease of fishing rights. The preferential right is given only to two parties, one is the Co-operative Societies comprised of fishermen or of harijans engaged in fishing and the other is the panchayats, the former is placed above the letter.
56. The contention that only in the case of Panchayat not willing to take the lease, Co-operative Societies can seek for lease, is wholly untenable, in the light of abovesaid G.O. As a matter of fact, it is the reverse. G.O., itself stipulates the order of preference and the preferential right of the Panchayat is second in line. There is absolutely no ambiguity in that. As rightly pointed out by the Learned Senior Counsel for respondents 7 to 3, Panchayats have no right to claim fishing rights, exclusively, ignoring the rights of the Society.
57. Fixing an appropriate rent for the lease of fishing rights is the prerogative of the Government. The object of the G.O., itself is for the welfare of the weaker sections of the society and in the case on hand, the society formed by the Fishermen and Harijans. The revenue is collected by the Public Works Department to be remitted in their account. When certain concession or priority is given to a class of persons or a Society, formed out of such class of persons, the same is permissible under law and therefore, the contention that on the earlier occasion, it fetched more revenue to the Panchayat and hence, fishing rights should be granted only to the Panchayat cannot be accepted. Ultimately, it is the intention and the policy decision of the Government taken in the welfare of the weaker sections of the society, have to prevail over others.
58. The contention that new members have been enrolled after the lease has been granted in favour of the Society, has already been considered by this Court in the earlier batch of writ petitions. Respondents 5 to 7 in the earlier batch of writ petitions, members alleged to have been enrolled, have already submitted that they had paid the subscription charges, even before the grant of lease and even assuming that there is a dispute, this Court held that, that the same cannot be decided in the earlier writ petition. The question of enrolling new members and alleged mal-administration of the society is for the members of the society, to agitate, if there is any grievance.
59. When the Councilor and Ex-President and a Headman of the said Village have raised such a contention before this Court on an earlier occasion and rejected on the grounds of locus standi, the same reasoning applies to the Vice President of the Panchayat or any other members of the Council. At any rate, the Village Panchayat cannot be said to be a aggrieved person over the enrolment of new members.
60. Granting lease of fishing rights in respect of lakes under the control of the Public Works Department to the Societies comprising of Fishermen and Harijans in the order of preference, and fixing the rent, is prerogative of the Government and the intention behind the same is clear. If revenue is the only objective, then there is no question of preference. In which event, even the Panchayat cannot claim any preferential right and has to participate only in the open auction along with others for lease of fishing rights.
61. At one stage, the petitioner-Panchayat claims that only in the absence of Panchayat unwilling to take the fishing rights on lease, the Co-operative Societies should be given the fishing rights and at the same time, contrary to its own pleadings, the Village Panchayat claims that to augment revenue, it should be auctioned. Thus, it is manifestly clear that the petitioner has attempted to bend the G.O., in whatever manner possible to suit its convenience. A local body, who has not been vested with fishing rights in a lake, has no authority to question the correctness of the Government Order.
62. Reading of G.O., makes it clear that the intention of the Government is to grant fishing rights to the weaker sections of the society, particularly, fishermen and harijans engaged in fishing, without any auction, as they cannot compete with prople, who can afford to pay higher rent. By adopting to direct lease, economic justice is sought to be achieved. Deviation from the same is provided only if they are not willing to take up the lease. As rightly contended, the limitations provided in the G.O., cannot be undone by a Mandamus. The interpretation made by the petitioner is a misconstruction to the very object and intention behind the G.O.
63. Material on record shows that it is the admitted case of the Vice President of Thimmapuram Village Panchayat, the deponent in the present writ petition that he was aware of the previous writ petitions filed by Mr.Velumani and Mr.G.Govindhan for lease of fishery rights in favour of the village and that it is the further submission of the deponent that the panchayat waited for the outcome of those above mentioned writ petitions and hence passed a resolution on 11.06.2010 for the betterment and welfare of the village and filed the present writ petition. The common order has been passed on 09.06.2010 and coming to know of the dismissal of the writ petitions filed by the them Viz., Councillor and Ex-President as well as the Village Headman, the panchayat represented by the Vice President has filed the present writ petition. As submitted by the Learned Senior Counsel for the respondents there cannot be any relay race for achieving the target of lease of fishery rights by Thimmapuram Village Panchayat, by filing writ petitions one after another by persons claiming themselves to be the Headman, Coucillor and Ex-President and now the Vice-President. The common order in W.P.Nos.29944 of 2008, 5568 and 15727 of 2009 dated 09.06.2010 applies to the facts of this case in all force.
64. Yet another aspect to be considered in this case, is that the issues raised in the earlier batch of writ petitions and the findings recorded thereon, are directly and substantially on the same points. Hence, the orders made in the above writ petitions, are judgments "in rem". In C.L.Pasupathy v. Engineer in Chief (WRO) reported in 2009 (2) MLJ 491, this Court has considered the expressions, "judgment in 'in rem' or a judgment 'in personam'", as follows:
"27. .......Historically the term judgement "in rem" was used in Roman law in connection with actio but not in connection with "jus actio in personam". The effect of "actio in rem" was to conclude against all mankind, but the effect of "actio in personam" was to conclude with regard to the individual only. After the Roman forms of procedure had passed away, the term "in rem" survived to express the effect of an action "in rem" and gradually, it came to import "generally".
28. The judgements "in rem" signified as judgements which are good against all mankind and "judgements in personam" signified the judgements which are good only against the individuals who are parties to them and their privies. The point adjudicated upon in a "judgement in rem" is always as to the status of the "res" and is conclusive against the world as to that status, whereas in a judgement "in personam", the point whatever it may be, which is adjudicated upon, not being as to the status of the "res" is conclusive only between the parties or privies. Reference can be made to Firm of Radhakrishnan Vs. Gangabai, 1928 S 121, Ballantyne vs. Mackinson 1896 2 QB 455.
29. Courts have held that, "Judgement in rem", operates on a thing or status rather than against the person and binds all persons to the extent of their interest in the thing, whether or not they were parties to the proceedings. The judgement "in rem",as distinguished from judgement "in personam" is an adjudication of some particular thing or subject matter, which is the subject of controversy, by a competent Tribunal, and having the binding effect of all persons having interests, whether or not joined as parties to the proceedings, in so far as their interests in the "res" are concerned. In determining whether a judgement is "in rem", the effect of the judgement is to be considered and it is tested by matters of substance, rather than by measure of any particular draft or form.
A final judgement on the merits in a particular proceeding, "in rem" is an absolute bar to subsequent proceedings founded on the same facts and a judgement "in rem" may be pleaded as a bar to another action of the same subject matter, if its effect is to merge a distinct cause of action, but not otherwise. The judgement "in rem" operates as a bar or estoppel only to the "res" or matter within the jurisdiction of the court and does not prevent a subsequent action for personal relief, which could not be obtained in the first action. Thus with respect to the "res or status", a "judgement in rem" has to be conclusive and binding upon "all the world" that is, on all the persons, who may have or claim any right or interest in the subject matter of litigation, whether or not, they were parties to or participants in the action, atleast to the extent, that it adjudicates or establishes a status, title or res, constituting the subject matter of the action, a "judgement in rem" will operate as a estoppel, in a subsequent action in respect of the points or questions adjudicated."
65. In the light of the above and following the principles of law, declared by the Apex Court, there are absolutely no merits in this writ petition and the same is dismissed. No costs. Consequently, connected Miscellaneous Petition is also closed.
skm To
1.The State of Tamilnadu rep. by its Secretary to Government, Home Department, Fort St.George, Chennai-9.
2. The Collector, Krishnagiri District, Krishnagiri.
3.The Executive Engineer, Public Works Department, Upper Penniyar Vadinilakkottam, Dharmapuri-5.
4.The Assistant Director of Fisheries (Island Fisheries Development) Krishnagiri District