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APHC010200142021

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3328]

THURSDAY ,THE FIFTH DAY OF JUNE

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE GANNAMANENI RAMAKRISHNA

PRASAD

WRIT PETITION NO: 11787 OF 2021

Between:

1. PITTIKAYALAGULLA GRAMA PANCHAYAT,, REP.BY ITS

SECRETARY, PITTIKAYALAGULLA VILLAGE, BESTAVARIPETA

MANDAL, PRAKASAM DISTRICT, PIN - 523346.

...PETITIONER

AND

1. THE STATE OF ANDHRA PRADESH, REP.BY ITS -SECRETARY,

FISHERIES AND ANIMAL HUSBANDARY -DEPARTMENT,

AMARAVATHI, STATE OF A.P.

2. THE COMMISSIONER OF FISHERIES, STATE OF ANDHRA

PRADESH, BUDER ROAD, PORANKI, VIJAYAWADA.

3. THE JOINT DIRECTOR OF FISHERIES, , PRAKASAM DISTRICT,

ONGOLE, PRAKASAM DISTRICT.

4. THE ASSISTANT DIRECTOR OF FISHERIES, CHIRALA, CHIRALA

MANDAL, PRAKASAM DISTRICT.

5. THE ASSISTANT INSPECTOR FISHERIES, CUMBAM, PRAKASAM

DISTRICT.

6. THE AMBEDKAR ASAYA SADANA SAMITI BESTA FISHERIES

COOPERATIVE SOCIETY LTD, REP.BY ITS -PRESIDENT, GULLA

CHINA SUBBAIAH, S/O. SUBBAIAH, AGED ABOUT 42 YEARS, R/O.

PAPAYAPALLI VILLAGE, BESTVARIPETA MANDAL, PRAKASAM

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DISTRICT.

...RESPONDENT(S):

Counsel for the Petitioner:

1. G VIJAYA BABU

Counsel for the Respondent(S):

1. ANUP KOUSHIK KARAVADI

2. GP FOR FISHERIES

The Court made the following ORAL ORDER:

Heard Sri G. Vijaya Babu, learned Counsel for the Writ Petitioner; Sri

M.V. Narasimham, learned Assistant Government Pleader for Fisheries

appearing for the Official Respondents and Sri K. Ashok, learned Counsel

appearing on behalf of Sri Anup Koushik Karavadi, learned Counsel for the

Respondent No.6.

2. The prayer sought in the present Writ Petition is as under:

“It is therefore prayed that this Hon’ble Court may

be pleased to issue a Writ, Order or Direction more

particularly one in the nature of Writ of Mandamus

declaring the action of the Respondents 3 and 4 in

granting Lease Hold Rights of Pittikayalapalli Chinna

Cheruvu, which is having only 22 Hecteres (55 Acres) of

Ayacut area and the same is a Minor Irrigation Tank under

the control of the petitioner Grama Panchayat as per the

guidelines issued in Memorandum No 1842/Pts. IV/74-4,

Dated: 10.11.1975 affixed to G.O.Ms.No.100,

Dated:18.01.1963 to the 6

th

respondent society as illegal

arbitrary and contrary to Section 56 (b) of the

A.P.Panchayat Raj Act, 1994 (Act No 13 of 1994) and also

the Guidelines framed in G .O.Ms.No.100 and

G.O.Ms.No.343 and as well as the procedure precribed in

G.O.Ms.No.343, Dt.10.04.1978 and consequently direct

the respondents 2 to 5 not to interfere with the granting of

Fisheries Rights in Pittikayalapalli China Cheruvu which is

in the control of petitioner village limits and the petitioner

has got right to lease out the fishery wealth in tank by

fallowing the procedure contemplated in G.O.Ms.No.343

and pass such other order or orders may deem fit and

proper in the circumstances of the case.”

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3. Pittikayalagulla Grama Panchayat had approached this Court

challenging the action of the Fisheries Department through the Commissioner

of Fisheries in granting Fisheries rights to the Ambedkar Asaya Sadana

Samithi (Besta), Fisheries Co-operative Society Limited (Unofficial

Respondent No.6).

SUBMISSIONS OF THE LD. COUNSEL FOR THE WRIT PETITIONERS:

4. It is the submission of the Ld. Counsel for the Writ Petitioner that there

are two water tanks in Pittikayalagulla village by name Pittikayalapalli Pedda

Cheruvu and Pittikayalapalli Chinna Cheruvu; that Pittikayalapalli Pedda

Cheruvu is a Major Tank as per the classification given in Memorandum

No.1842/Pts.IV/74-4 dated 11.10.1975. As per the said classification, all

Irrigation Tanks with an ayacut area of Ac.25.00 cents up to 200 acres in the

Andhra region are considered as „Minor Irrigation Tanks‟ for the purpose of

classification; that in the present case, Pittkayalapalli Chinna Cheruvu is a

minor Irrigation Tank having an ayacut area of 22.00 hectors (Ac.55.00 cts)

and therefore, it is a minor irrigation tank; that the said Pittikayalapalli Chinna

Cheruvu is vested with the Grama Panchayat and the Grama Panchayat has

right, ownership and control over the said minor irrigation tank for the purpose

of conducting auction for conferring fishing rights on the successful bidders.

5. It is further submitted that on 18.10.2019, the 6

th

Respondent Society is

registered with the area of operation of 1. Pata Mallapuram, 2. Pittikayalagulla,

3. R.Kottapalli, 4. Jennivaripalli Villages; that G.O.Ms.No.776 Food and

Agriculture (Fish.II) Department dated 31.12.1990 has no Application to the

Pittikayalapalli Chinna Cheruvu since the same is a minor irrigation tank; that

insofar as the minor irrigation tanks are concerned, they shall be under the

control of Grama Panchayat as per Section 56 (1)(b) of the Andhra Pradesh

Panchayat Raj Act, 1994; that under the G.O.Ms. No.343 Panchayat Raj

(Ser.I) Department, dated 10.04.1978 (Ex.P.7) the Government of Andhra

Pradesh has issued and published the rules relating to leasing of fishery rights

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in minor irrigation tanks and other sources belonging to/vested in the Grama

Panchayats under the Andhra Pradesh Grama Panchayat Act, 1964.

COUNTER-AFFIDAVIT OF OFFICIAL RESPONDENTS :

6. The Asst. Inspector Fisheries, Cumbum, Prakasam District

(Respondent No.5) has filed Counter-Affidavit. It is stated in the Counter-

Affidavit filed by the Asst. Inspector Fisheries, Cumbum that the Government

is strictly following the G.O.Ms.No.776 Food and Agriculture (Fish.II)

Department dated 31.12.1990 for leasing out fishing rights of Pittikayalapalli

Chinna Cheruvu (minor irrigation tank) in favour of the Unofficial Respondent

No.6.

7. Ld. Counsel appearing for the Respondent No.5 has drawn the attention

of this Court to the content of the G.O.Ms.No.776 Food and Agriculture

(Fish.II) Department dated 31.12.1990.

COUNTER-AFFIDAVIT OF UNOFFICIAL RESPONDENT NO.6:

8. The Unofficial Respondent No.6 had been granted Fishing Rights Lease

by the Official Respondents. The Unofficial Respondent No.6 has filed

Counter-Affidavit and contended that since the Government is following the

rules under the G.O.Ms.No.776 Food and Agriculture (Fish.II) Department

dated 31.12.1990, the present Writ Petition is not maintainable because the

Writ Petitioner did not challenge the G.O.Ms.No.776 Food and Agriculture

(Fish.II) Department dated 31.12.1990.

9. Ld. Counsel for the Writ Petitioner would submit that the Writ Petitioner

is not challenging the validity of the G.O.Ms.No.776 Food and Agriculture

(Fish.II) Department dated 31.12.1990 inasmuch as the said G.O. deals with

major irrigation tanks. It is submitted that as per the clarification given in the

Memorandum No.1842/Pts.IV/74-4, dated 10.11.1975, Pittikayalapalli tank

has an ayacut area of 22.00 Hectors (55.00 cents) and therefore is a minor

irrigation tank, whereas, G.O.Ms.No.776 Food and Agriculture (Fish.II)

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Department dated 31.12.1990 is applicable only to the major irrigation tanks,

like the Pittakayalapalli Pedda Cheruvu. Ld. Counsel for the Writ Petitioner

has taken this court through the G.O.Ms.No.776 Food and Agriculture (Fish.II)

Department dated 31.12.1990 and would submit that the said G.O cannot be

applied to the Pittakayalapalli Chinna Cheruvu.

10. Ld. Counsel for the Writ Petitioner has placed reliance on the judgment

of this Court in Ipur Gram Panchayat, Guntur District Vs. Government of

Andhra Pradesh; 2000 Law Suit (AP) 452; 2000 (4) ALT 678. Ld. Counsel

for the Writ Petitioner has drawn the attention of this Court to Para Nos. 8 to

13 of the said Judgment. Relevant para Nos. 8 to 13 are usefully extracted

hereunder:

“8. From this it is seen that the Government while

continuing the policy of leasing out the fishing rights in the

tanks to the fishermen Co-operative Societies under

G.O.Ms. No. 343 as well as G.O.Ms. No. 776 the leasing

or auction of fishing rights in the minor irrigation sources

vested in the Water Users' Associations will be leased out

by a competent authority of the Fishery Department not

below the rank of Assistant Director of Fisheries. G.O.Ms.

No. 71 was issued directing the payment of the rentals by

the Fisheries Department to the Water Users' Association.

From the reading of these two G.Os., it is clear that no

representation was made by the Water Users' Association

either for transfer of minor irrigation tanks that are vested

in Gram Panchayat to them or permit them to enjoy the

income derived from the leasing of fishing rights in these

tanks. It is not known in whose mind this idea came all of a

sudden and no reasons were given for directing the

payment of the lease amounts to the Water Users'

Association. At least, to find out whether the decision is

supported by any statutory provision, I directed the

Government Pleader to find out whether the Government

passed any orders to transfer the irrigation tanks to the

Water Users' Association, and the answer was in negative.

When the minor irrigation tanks vested in Gram

Panchayats by virtue of statute, it is not known how the

Government can issue these two G.Os., in exercise of

executive power under Article 162 of the Constitution of

India when the field is squarely covered by the statutory

provisions and the rules made therein under Gram

Panchayat Act replaced by Panchayat Raj Act.

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9. Coming to the facts of the case the Fisheries

Development Officer in his letter No. 24/Societies/98-99,

dated 16-3-1999 informed the Fishermen Society that the

Fisheries Department fixed the upset price for leasing out

the fisheries rights by 10% excess over and above the

amount that was fetched during the previous year and

directed the society to pay an amount of Rs. 1,92,500/-

towards the lease amount for the Fasli 1408 (98-99) by

way of a demand draft drawn in favour of President, Water

Users' Association, Epur and the society need not pay the

amounts to the Gram Panchayat. The letter also stated

that orders for leasing out the fishing rights will be got

issued by the Collector for Fasli 1408. The Gram

Panchayat did not offer any explanation what it has done

during the year 1998-1999 to assert its right over the tank.

But on 19-4-1999 the Gram Panchayat issued another

notice to the society to pay an amount of Rs. 1,85,000 for

the year 1998-1999. The society having received the letter

sent a reply on 3-5-1999 stating that the amount was

already paid to the Water Users' Association and it need

not pay the amount demanded by the Gram Panchayat. In

those circumstances, the Gram Panchayat issued notice

for leasing out fishing rights in the tank by way of auction.

On that, the society seemed to have approached the DPO

who in turn gave telegram on 11 -5-1998 to the

Grampanchayat not to conduct auction, and thereafter the

Collector in his proceedings dated 28-7-1999 directed the

Grampanchayat not to conduct auctions. Questioning the

said order the petitioner-Gram Panchayat filed a revision

before the Government on 26-5-1999 and though the

Government initially passed interim stay of the order of the

Collector on 2-6-1999, after hearing both the parties

issued G.O.Rt. No. 1309 PR & PD (PTS TV) Department,

dated 21-7-1999 vacating the interim stay granted earlier

by holding that the Government felt that no interference is

required without reference to the earlier orders passed by

the Government in G.O.Rt. No. 710 (P & RD) Department,

dated 3-7-1991.

10. Questioning the said proceedings, the Gram

Panchayat filed WP No. 15825 of 1999 on 22-7-1999 and

no interim order seemed to have been granted by this

Court. Subsequently, the Grampanchayat filed another

writ petition in WP No. 16970 of 1999 by engaging

different Counsel questioning the validity of G.O.Ms. Nos.

70 and 71 dated 23-7-1998. While admitting the Writ

Petition No. 16970 of 1999 by order dated 31-8-1999, I

directed the Gram Panchayat to implead the Fishermen

Society as respondent No. 7. In the meantime, the Society

itself on its own filed an application to get itself impleaded

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in the writ petition as it is very conscious of its rights. On

31-8-1999, I directed both the Grampanchayat as well as

the Fisheries Department not to auction the lease hold

rights for fishing in the tank pending disposal of the writ

petition. Now, these two writ petitions came up for hearing

before this Court.

11. As far as the validity of these two G.Os. 70 and 71

are concerned, I have already adverted to the provisions

of the Management of Irrigation System Act and nowhere I

find a provision transferring the minor irrigation tanks

which are vested in the Grampanchayat to the Water

Users' Association. As I have already observed that these

two G.Os., were issued by the Government in exercise of

its executive power under Article 162 of the Constitution of

India without passing any orders legal or illegal

transferring the minor irrigation tanks vested in the

Grampanchayat under Section 56 of the Panchayat Raj

Act of 1994 to the Water Users Association purely under

an imagination that these tanks vested in them without any

authority of law.

12. Nextly, the Government Pleader placed reliance on

G.O.Ms. No. 776. It is useful to refer to G.O.Ms. No. 776

Food and Agriculture (Fish. II) Department, dated 30-12-

1990 wherein fresh guidelines were issued with regard to

leasing of the fishing rights in the water sources in the

State on the basis of the recommendations of an expert

Committee appointed to go into the all the matters relating

to fisheries, i.e., estimation of fishing wealth, potential for

development, increase of production, development of

markets etc., and in supersession of the executive orders

issued from time to time for the water resources that are

not vested in Gram Panchayats. In this G.O., it is stated

that (16) reservoirs and tanks are under the control of the

Director of Fisheries and he was directed to de-license

these reservoirs and to give them on lease to Fishermen

Co-operative Societies to exploit fishing wealth in a big

way. It is also stated that instructions in that G.O. were

given pending finalisation of policy regarding the

development of fishing in the major reservoirs. Clause-I of

the aforesaid G.O., speaks re-transfer of irrigation tanks

which were under the control of Fisheries Department

prior to 1987 from Panchayat Raj Department to Fisheries

Department and the procedure to be followed for leasing

out the fishing rights. Clause 3 of the said Governmental

order says as under:

“Procedure regarding tanks vested in the Gram

Panchayat Act, 1964:—All the sources which

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vested in the Gram Panchayat under the Gram

Panchayat Act, 1964 shall continue to be with the

respective Gram Panchayats for the purpose of

disposal of Fishery rights.”

13. Evidently, there seems to be some confusion in the

minds of the authorities responsible for issuance of the

said G.O. From clause 3, it is very clear that the tanks

vested in the Gram Panchayats under the Gram

Panchayat Act, 1964 shall continue under the respective

Gram Panchayats. But clause 1 which speaks of transfer

of irrigation tanks that were transferred to Panchayat Raj

Department in the year 1987 stands transferred to

Fisheries Department. It is not known whether the

Government is referring to the tanks vested in the Gram

Panchayats or minor irrigation tanks or some other tanks.

Be that as it may, it is suffice to state again that these

orders are only executive orders issued under Article 162

of the Constitution of India and they cannot have

overriding effect over the statutory provisions. At any rate,

even after issuance of this G.O. the Fisheries Department

was not exercising rights of ownership over the tanks in

question leave apart transferring the tank, which vested in

the Gram Panchayat as per the earlier order of the

Government in 1991. As stated supra, if the intention of

the Government is to transfer the ownership of the minor

irrigation tanks to the Water Users' Associations, to

augment its resources for taking up developmental

activities, though the Legislation was enacted for a

different purposes, atleast the Government is expected to

transfer the minor irrigation tanks to these Associations.

That can only be possible only by amending Panchayat

Raj Act as well as Management of Irrigation System Act,

but not otherwise.”

11. Ld. Single Judge of this Court has categorically held, referring to and

placing reliance on the judgment of the Division Bench of this Hon‟ble Court in

W.A.No.997 and 1005 of 1997 dated 01.10.1997 that all minor irrigation tanks

together with right to auction of 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. This would make it clear that the fishing rights

as regards the minor irrigation tanks, certainly vest with the Grama Panchayat

only. Ld. Counsel for the Respondents have placed reliance on the judgment

of the Division Bench in Vaddavalli Fishermen Vs. Rayidi Krishna Kumari

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and Others; 2000 (4) ALD 259; 2000 (4) ALT 1. This Judgment of the

Division Bench has been referred to by the Ld. Single Judge in Epuru Grama

Panchayat‟s case, and clarified that the judgment of the Division Bench deals

with the major irrigation tanks and therefore said judgment has no bearing on

the facts relating to minor irrigation tanks.

12. Ld. Single judge in Epuru Grama Panchayat‟s case placed reliance on

the judgment of the Division Bench in W.A.No.997 and 1005 of 1997 dated

01.10.1997 that specifically deals with minor irrigation tanks and held that the

right to auction of weeds and reeds of such tanks is vested with Grama

Panchayat. Ld. Counsel for the Writ Petitioner would submit that the case of

the Writ Petitioner herein is squarely covered by the judgment of Epuru Grama

Panchayat‟s case.

13. From the above discussion, it so emerges that the issues relating to

major irrigation tanks are covered under G.O.Ms.No.776 Food and Agriculture

(Fish.II) Department dated 31.12.1990. Admittedly, the minor irrigation tanks

which are covered under the Panchayat Raj Act are vested with the Grama

Panchayat and the Grama Panchayats alone have the right and control for

exploiting the fishing rights. Section 56 (1)(b) of the Andhra Pradesh

Panchayat Raj Act, 1994 confers power on the Panchayat to maintain

irrigation tanks. This statutory right that is vested with the Gram Panchayat

cannot be taken away by the State by way of an Executive Order.

14. In the above premise, this Court is of the opinion that the Pittikayalapalli

Chinna Cheruvu is a minor irrigation tank, as per the Proceedings of the Asst.

Executive Engineer dated 27.05.2018 with an ayacut area of 22.00 Hectors

(Ex.P.1). As per the Memorandum No.1842/Pts.IV/74-4 dated 10.11.1975

(Ex.P.6), it is clear that the irrigation tanks with ayacut area of 25.00 Hectors

are classified as Minor Irrigation Tanks. Minor Irrigation Tanks are vested with

the Grama Panchayat as per Section 56 (1) (b) of the Andhra Pradesh

Panchayat Raj Act, 1994. It is also the opinion of the Court that G.O.Ms.

No.776 dated 31.12.1990 is inapplicable to the facts of the present case and

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inasmuch as the said G.O. deals with major irrigation tanks and medium

irrigation tanks and that the said G.O. does not specifically mention about the

coverage with respect to the Pittikayalapalli Chinna Cheruvu, which is

admittedly a minor tank. Even assuming that the G.O.Ms.No.776 dated

31.12.1990 covers the minor irrigation tanks including the Pattikayalapalli

Chinina Cheruvu, the same cannot be held to be legally valid in as much as

the privilege of exclusive fishing rights conferred on the Gram Panchayat

under the statute cannot be frustrated by the Government through an

Executive Order. This Court is also of the opinion that the Judgment rendered

by the Ld. Single Judge of this Court in Epuru Grama Panchayat‟s case is also

squarely applicable to the facts of the case wherein, Ld. Single Judge of this

Court has considered and distinguished two Division Bench orders and had

further held that the Order of the Division Bench in W.A.No.997 and 1005 of

1997 dated 01.10.1997 would squarely apply to the facts of the said case.

15. Since the facts in the present case are identical to the facts in the

Judgment rendered by the Division Bench in W.A.No.997 and 1005 of 1997,

this Court is of the view that the Department of Fisheries have no domain over

Pittikayalapalli Chinna Cheruvu, which is admittedly a minor irrigation tank

with an ayacut area of 22.00 Hectors and that the Writ Petitioner Panchayat

alone has the right to grant fishing rights by conducting auction.

16. In the above premise, this Writ Petition stands allowed. No order as to

costs.

17. Interlocutory Applications, if any, stand closed in terms of this order.

______________________________________

GANNAMANENI RAMAKRISHNA PRASAD, J

Dt: 05.06.2025

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HON'BLE SRI JUSTICE GANNAMANENI RAMAKRISHNA PRASAD

WRIT PETITION No.11787 OF 2021

Dt: 05.06.2025

Mnr