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IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
M.N. Rao, G.V.L. Narasimha Rao, JJ.
Vavilala Fishermen Co-operative Society Limited - Appellant
Versus
The Vavilala Gram Panchayat – Respondents
W.A. No 1087 of 1992
Decided On : 22-09-1993
Advocate Appeared:
For the Appellant : M/s. T. Jagdish & S. Gopal Singh
For the Respondent: Sri. N. Siva Reddy
The expression 'tank' in Section 86(1)(a) of the Andhra Pradesh Gram Panchayats Act, 1964 includes minor irrigation tanks, and once the Gram Panchayat has set apart a tank for washing purposes under Section 86(1)(a), the fishery rights in that tank must be leased out to the local Rajaka Seva Sangham under Rule 3(a)(ii) of the statutory rules.
Headnote:
GRAM PANCHAYATS ACT - SECTION 86(1)(A) - MINOR IRRIGATION TANK - LEASE OF FISHERY RIGHTS - INTERPRETATION OF 'TANK' - POWER OF GRAM PANCHAYAT TO SET APART PUBLIC TANKS FOR CERTAIN PURPOSES - APPLICABILITY OF RULE 3(A)(I) AND (II) OF THE STATUTORY RULES FRAMED BY THE GOVERNMENT.
Fact of the Case:
The appellant, a Fishermen Co-operative Society, challenged the action of the Gram Panchayat in not granting them the lease of fishery rights in respect of a minor irrigation tank, Dhoodalakunta. The Gram Panchayat had earmarked the tank for washing purposes and leased out the fishery rights to the Rajaka Seva Sangham, a washermen's association. The appellant contended that the expression 'tank' in Section 86(1)(a) of the Andhra Pradesh Gram Panchayats Act, 1964, which empowers the Gram Panchayat to set apart public tanks for certain purposes, does not include minor irrigation tanks, and therefore, the lease of fishery rights in Dhoodalakunta tank should have been granted to them under Rule 3(a)(i) of the statutory rules framed by the Government.
Finding of the Court:
The court held that the expression 'tank' in Section 86(1)(a) of the Act includes minor irrigation tanks also. The court relied on a Division Bench decision of the same court which had interpreted the word 'tank' in Sections 65(1)(b) and 85(2) of the Act to include minor irrigation tanks. The court also held that once the Gram Panchayat has set apart a tank for washing purposes under Section 86(1)(a), the fishery rights in that tank must be leased out to the local Rajaka Seva Sangham under Rule 3(a)(ii) of the statutory rules.
Issues: 1. Whether the expression 'tank' in Section 86(1)(a) of the Andhra Pradesh Gram Panchayats Act, 1964 includes minor irrigation tanks? 2. Whether the Gram Panchayat can lease out the fishery rights in a minor irrigation tank to the Rajaka Seva Sangham if it has been set apart for washing purposes?
Ratio Decidendi: 1. The court interpreted the expression 'tank' in Section 86(1)(a) of the Act to include minor irrigation tanks based on the Division Bench decision in Fishermen Co-operative Society vs. Grampanchayati, which had held that the word 'tank' in Sections 65(1)(b) and 85(2) of the Act includes minor irrigation tanks. 2. The court held that once the Gram Panchayat has set apart a tank for washing purposes under Section 86(1)(a), the fishery rights in that tank must be leased out to the local Rajaka Seva Sangham under Rule 3(a)(ii) of the statutory rules.
Final Decision: The court dismissed the writ appeal filed by the appellant Fishermen Co-operative Society.
ORDER :
M.N. Rao, J.
The question for consideration in this writ appeal preferred against the judgment of a learned single Judge in Writ Petition No. 8539 of 1992 is whether the expression 'tank' occurring in Clause (a) of sub-section (1) of Section 86 of the Andhra Pradesh Gram Panchayats Act, 1964 takes within its ambit' minor irrigation tank' also-
2. The unsuccessful petitioner in the Writ Petition - Vavilala Fishermen Co-operative Society Limited is the appellant before us. The Writ Petition was filed challenging the action of the Vavilala Gram Panchayat - 1st respondent herein in not granting lease of fishery rights in respect of Dhoodalakunta minor irrigation tank in favour of the appellant-society. Within the limits of the Vavilala Gram Panchayat, there is one major irrigation tank and four minor irrigation tanks - Mamilla tank, Eedulal Tank, Parikalakunta and Dhoodalakunta. The Divisional Panchayat Officer fixed certain upset prices in respect of all the four tanks for a period of three years 'and communicated the same to the appellant by an order issued in ROC No. 993/91-B dated 26-10-1991. The case of the appellant is that a banker's cheque dated 12-12-1991 for Rs. 15,334/- representing the average of the aggregate of the four upset prices along with a covering letter was sent to the Sarpanch of the Gram Panchayat by registered post, as the Sarpanch on the earlier occasion had refused to receive the same. The appellant's case is founded on Rule 3(a) (i) of the statutory rules framed by the Government in G.O.Ms.No. 343, Panchayat Raj, dated 10-4-1978, which imposes an obligation on the Gram Panchayat to lease out fishery rights in minor irrigation tanks in favour of the Fishermen Co-operative Society. The learned Single Judge has taken the view that under Clause (ii) of sub-rule (a)of Rule 3, the Rajaka Seva Sangham – second respondent herein is entitled to grant of lease without public auction since the Gram Panchayat under Section 86(1)(a) had earmarked the tank in question for washing purposes. Therefore, the action of the Gram Panchayat in leasing out fishery rights in favour of the second respondent in respect of Dhoodalakunta tank is perfectly valid in law. Aggrieved by that, the present appeal was brought.
3. It is the contention of Sri Jagdish, the learned Counsel for the appellant, that there are two categories of tanks - one covered by Section 65 of the Act and the other by Section 85. It was only in respect of the tanks falling within the ambit of Section 85 that the Rajaka Seva Sangham could be granted fishery rights and inasmuch as the tank in question comes within the ambit of Sec. 65, the appellant-society alone is entitled to have the lease of the fishery rights.
4. We are not inclined to accept the contention. Section 65, which bears the heading is in the following terms:
Section 65. "Maintenance of irrigation works, execution of Kudimaramat etc."
"(1) (a) Subject to such conditions and control as may be prescribed, the Government may transfer to any gram panchayat the protection and maintenance of any village irrigation work, the regulation of turns of irrigation, or of distribution of water from any such irrigation work to the fields depending on it.
(b) Subject to such restrictions and control as may be prescribed the fishery rights in minor irrigation tanks and the right to auction weeds and reeds in such tanks and the right to plant trees on the bunds of such tanks and enjoy the usufruct thereof shall vest in the gram panchayat.
(2) The gram panchayat shall have power, subject to such restrictions and control as may be prescribed, to execute kudimaramat in respect of any irrigation source in the village and to levy such fee and on such basis for the purpose thereof as may be prescribed.
Provided that nothing in this section shall be deemed to relieve the village community or any of its members of its or his liability under the Andhra Pradesh (Andhra Area) Compulsory Labour Act, 1851, or any other, law si
