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1978 Supreme(AP) 428
Andhra Pradesh High Court
Judges : A.SAMBASIVA RAO, RAMANUJULU NAIDU
Fishermen Co-operative Society, Kuchipudi, Tenali Taluk, Guntur District - Appellant
Versus
Gram Panchayat, Pedapudi - Respondent
Decided On : 12-18-78
The restrictions and control postulated by clause (b) of section 65 (1) in respect of the fishery rights in minor irrigation tanks are not limited to the auction rights only. In every fact of the fishery rights in minor irrigation tanks the prescribed authority can impose restrictions and control.
Headnote:
GRAM PANCHAYATS ACT - RULES - Vires and application of rules 3 (a) (i) and 3 (b) of the rules made by the Government of Andhra Pradesh in G. O. Ms. No. 343 dated 10th April, 1978 in exercise of the powers conferred on them under section 65 (1) (6) and section 85 (2) read with sub-section (1) of section 217 of the Andhra Pradesh Gram Panchayats act, 1964 - Interpretation and application of the rules - Held, the rules are intra vires the powers of the Government and the appellant society is entitled to the benefits of rule 3 (a) (i) in the matter of fishery rights in all the five villages which it serves.
Fact of the Case:
The Divisional Panchayat Officer, Tenali, Guntur district issued a communication to the gram panchayat, Pedapudi in whom the thanks vested, in L. Dis. No. 4399 of 1978 dated 7th august, 1978 to lease out the fishery rights in favour of the Fishermen Co-operative society, Kuchipudi, Tenali Taluk, Guntur district. This he purported to have issued under the powers vested in him under the impugned rules 3 (a) and 3 (b ). Thereupon the gram panchayaf, Pedapudi filed the writ petition seeking a certiorari declaring G. O. Ms. No. 343 as illegal, ultra vires and with out jurisdiction and also for suspension of the operation of the aforesaid G. O. Ms. No. 343.
Finding of the Court:
The court held that the impugned rules 3 (a) (i) and 3 (b) are intra vires the powers conferred on the government under section 65 (1) (b) and section 85 (2) of the Gram Panchayats Act. The court also held that the appellant society is entitled to the benefits of rule 3 (a) (i) in the matter of fishery rights in all the five villages which it serves.
Issues: 1. Whether the impugned rules 3 (a) (i) and 3 (b) are ultra vires the powers conferred on the government under section 65 (1) (b) and section 85 (2) of the Gram Panchayats Act? 2. Whether the appellant society is entitled to the benefits of rule 3 (a) (i) in the matter of fishery rights in all the five villages which it serves?
Ratio Decidendi: 1. The court held that the impugned rules 3 (a) (i) and 3 (b) are intra vires the powers conferred on the government under section 65 (1) (b) and section 85 (2) of the Gram Panchayats Act because: a. The restrictions and control postulated by clause (b) of section 65 (1) in respect of the fishery rights in minor irrigation tanks are not limited to the auction rights only. In every fact of the fishery rights in minor irrigation tanks the prescribed authority can impose restrictions and control. b. The same conclusion is arrived at if we examine sub-section (2) of section 85 read with sub-section (1) of the same section. The fishery rights in all the water words mentioned in sub-section (1) of section 85 no doubt vest in the gram panchayat. But they will be subject to such restrictions and control as may be prescribed by the appropriate authority. 2. The court held that the appellant society is entitled to the benefits of rule 3 (a) (i) in the matter of fishery rights in all the five villages which it serves because: a. The words "local area" in rule 3 (a) (i) mean the area which is served by the Fishermen Co-operative Society, and not necessarily the gram panchayat area. b. The appellant society is the Fishermen Co-operative Society of the local area of Pedapudi because it serves the needs of five villages, including Pedapudi gram panchayat area, and the fishermen of Pedapudi are members of the appellant society.
Final Decision: The writ petition was dismissed. The declaration given by the learned brother in the writ petition was set aside and instead, there shall be a declaration on the lines which the court stated above. The writ appeal was allowed in the manner the court indicated, excepting in regard to the year 1978-79.
( 1 ) THE vires and the application of rules 3 (a) (i) and 3 (b) of the rules made by the Government of Andhra pradesh in G. O. Ms. No. 343 dated 10th April, 1978 in exercise of ths powers conferred on them under section 65 (1) (6) and section 85 (2) read with sub-section (1) of section 217 of the Andhra Pradesh Gram Panchayats act, 1964 are in question in this writ appeal.
( 2 ) IN the village Pedapudi in Tenali taluk in Guntur district there are certain tanks which vested in the gram panchayat. The divisional Panchayat Officer, Tenali, Guntur district issued a communication to the gram panchayat, Pedapudi in whom the thanks vested, in L. Dis. No. 4399 of 1978 dated 7th august, 1978 to lease out the fishery rights in favour of the Fishermen Co-operative society, Kuchipudi, Tenali Taluk, Guntur district. This he purported to have issued under the powers vested in him under the impugned rules 3 (a) and 3 (b ). Thereupon the gram panchayaf, Pedapudi filed the writ petition seeking a certiorari declaring G. O. Ms. No. 343 as illegal, ultra vires and with out jurisdiction and also for suspension of the operation of the aforesaid G. O. Ms. No. 343. To this writ petition the State of Andhra pradesh, the Divisional Panchayat Officer, tenali and the Fishermen Co-operative society, Kuchipudi were made respondents. This writ petition was heard along with another writ petition which was W. P. No. 3562 of 1971. Our learned brother Muktadar, j. delivered a common order in both the writ petitions and issued a writ in the nature of mandamus directing the respondents not to exercise their power by restricting and controlling the fishery rights in the minor irrigation tanks etc. , vested in the gram panchayat under section 65 (1) (b) and section 85 (2) of the Gram Panchayats Act in such a manner by granting fishery rights to Fishermen Co-operative Society, although they are not situated within the local area of the gram panchayat. . In giving this declara tion the learned Judge was of the opinion that by the local area it was meant the area of the gram panchayat of the particular village. The 3rd respondent, who is the aggrieved party, has preferred this writ appeal.
( 3 ) THE first question which is canvassed by sri Hanumantha Rao, learned Counsel for the gram panchayat, which is the 1st respondent in the writ appeal, is that these rules are ultra vires the powers conferred on the government under section 65 (1) (b ). That provision reads thus:"subject to such restrictions and control as may be prescribed the fishery rights in minor irrigation tanks and the right to action weeds and reeds in such tanks and the writ to plant trees on the bunds of such tanks and enjoy the usuftuct there shall vest in the Gram Panchayat. ". Sri Hanumantha Rao contends that the restrictions and control as may be prescribed by appropriate authority are not in respect of the auction of fishery rights in minor irrigation tanks. That restriction and control are specifically under this provision only to the right to auction weeds and reeds in the tank. Had it also been the intention of the Legislature to confer similar powers in regard to the auction of fishery rights in the appropriate authority, the provision would have been different and same language would have been used in regard to fishery rights as those which have been used in respect of auction of weeds and reeds.
( 4 ) THIS argument is untenable. The provision starts with the clear words "subject to such restrictions and control as may be prescribed. " These words naturally apply to all the aspects mentioned in clause (b ). It undoubteuy applies to the right to auction weeds and reeds in such tanks. It also applies to the fishery rights in minor irrigation tanks. Now excluding the other part of clause (b), if we read only that portion of the clause which relates to the fishery rights, that provision would read like this; "subject to such restrictions and control as may be prescribed, the f
