Andhra Pradesh High Court - Amravati

K.Panduranga Rao vs The State Of Andhra Pradesh on 1 May, 2024

Author: Ninala Jayasurya

Bench: Ninala Jayasurya

 APHC010120462022

                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI                           [3209]


                           (Special Original Jurisdiction)

                    WEDNESDAY, THE FIRST DAY OF MAY
                    TWO THOUSAND AND TWENTY FOUR

                                  PRESENT

           THE HONOURABLE SRI JUSTICE NINALA JAYASURYA

                      WRIT PETITION No.7253 of 2022

Between:-

K. Panduranga Rao and another
                                                           ....   Petitioners
                                     And

The State of Andhra Pradesh and others
                                                          ..... Respondents

Counsel for the petitioners       : Mr. S.S.Bhatt

Counsel for the respondents : G.P. for Panchayat Raj & Rural Dev.
                               G.P. for Home
                               G.P. for Fisheries
                               Mr.G. Venkata Reddy
                               Mr. V.R.Reddy Kovvuri

The Court made the following:

ORDER:

This Writ Petition is filed seeking to declare the action of the 4th

respondent in issuing Dandora (Tom-Tom) notice and thereafter

conducting the public auction and issuing proceedings dated 07.01.2022

granting fishing rights to the 8th respondent in respect of the water tank

situated in Sy.No.207 of V. Kota Mandal is illegal, arbitrary and contrary to

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the judgment in O.S.No.54 of 1974 on the file of learned District Munsif

Court, Kuppam dated 30.12.1975 and for consequential direction to set

aside the proceedings dated 07.01.2022.

2) Heard Mr. S.S.Bhatt, learned counsel for the petitioners. Also

heard the learned Assistant Government Pleader for Panchayat Raj and

Rural Development, representing respondents 1 to 3, Mr. G. Venkata

Reddy, learned standing counsel for respondent No.4 and Mr. V.R.Reddy

Kovvuri, learned counsel for respondent No.8.

3) Learned counsel for the petitioners, inter alia, submits that a tank

by name "Keelapalle Tank" is situated in Sy.No.207 of V.Kota Mandal and

the fishing rights in respect of the said tank belongs to the petitioners'

family and they are enjoying the fishing rights for more than a century. He

submits that in 1974, the 4th respondent Gram Panchayat tried to interfere

with the peaceful enjoyment of the tank and fishing rights and the father

of the 1st petitioner along with the father of the 2nd petitioner filed

O.S.No.54 of 1974 on the file of Court of the District Munsif, Kuppam,

against Kuppam Gram Panchayat and others seeking a decree for

permanent injunction restraining the defendants, their men and agents

from interfering with the peaceful possession and enjoyment of the fishing

rights in respect of the petition schedule tank and the same was decreed

by a well considered judgment dated 30.12.1975. He submits that the

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said judgment and decree have become final as no appeal was filed

against the same.

4) The learned counsel further submits that as the Gram Panchayat

with the aid of the Fisheries Department was taking steps for auction of

the fishing rights in respect of the above said tank without any notice or

due respect to the above referred decree, the petitioners made a

representation dated 30.12.2021 to the Director of Fisheries. However,

there was no response and as the 4th respondent was taking steps to

proceed with the auction of fishing rights of the subject matter tank, the

petitioner filed W.P.No.1042 of 2022 before this Court. He submits that

the 4th respondent conducted public auction and granted fishing rights to

the 8th respondent vide proceedings dated 07.01.2022. He submits that

the said proceedings impugned in the Writ Petition are unsustainable as

the same are arbitrary, illegal and contrary to the Judgment in O.S.No.54

of 1974. He submits that in the said suit several aspects, including the

earlier suits filed by the petitioners' ancestors i.e., O.S.No.245 of 1944;

OS No.83 of 1950; OS No.48 of 1961 etc., were referred to and

categorical findings were recorded against the Gram Panchayat / 1st

defendant in O.S.No.54 of 1974. He submits that the findings in the said

suit have attained finality and under the said circumstances, the action of

the 4th respondent in proceeding with the auction of the fishing rights in

respect of the subject tank is wholly unsustainable. He further submits

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that though the leasehold rights are only for a period of six months, as the

4th respondent is proposing to conduct a public auction, unless the issue

with reference to the judgment in O.S.No.54 of 1974 is adjudicated, the

petitioner will suffer serious prejudice, hardship and irreparable loss.

5) Mr. G. Venkata Reddy, learned Standing Counsel for the 4th

respondent on the other hand made submissions, inter alia, that the

contentions advanced on behalf of the petitioners with reference to the

judgment and decree in O.S.No.54 of 1974 are misconceived. He

submits that basing on the said judgment and decree, the petitioners

have not filed any Execution proceedings. He further submits that even

as per the case of the petitioners they are not the original pattadars and

their ancestors were purchasers only. He submits that a copy of the patta

in respect of the subject matter tank has not been filed and the petitioners

cannot claim any fishing rights in the absence of any patta. He submits

that in fact no finding was recorded by the learned District Munsif in

O.S.No.54 of 1974 that a patta was granted to the petitioners' ancestors.

Referring to Section 56 of A.P. Panchayat Raj Act, 1994, the learned

Standing Counsel submits that by virtue of the said provision of law,

subject matter tank vests with the Gram Panchayat and it has absolute

rights over the tank in question, including the fishing rights. He submits

that unless the petitioners produce the patta showing that the rights were

granted to the petitioners' ancestors, they cannot claim a right in respect

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of the tank in question, much less the fishing rights. Making the said

submissions the learned Standing Counsel urges for dismissal of the Writ

Petition.

6) Learned Counsel for the 8th respondent submits that the lease in

respect of the subject matter tank was only for a period of six months,

which is already over and the writ petition has become infructuous.

While drawing the attention of this Court to Order dated 05.05.2022, he

submits that even otherwise, the petitioner is not entitled to any relief

against the 8th respondent in view of the said order.

7) Learned Assistant Government Pleader for Fisheries, representing

respondent No.5, made submissions with reference to the averments

made in the counter affidavit, from a reading of which, it would appear

that the 6th respondent received a representation / legal notice dated

30.12.2021 from the petitioners and in view of the same, the file was not

processed and the lease confirmation order of fishing rights in favour of

the 4th respondent Gram Panchayat was not issued. He submits that by

efflux of time, the cause does not survive and states that the Writ Petition

is liable to be dismissed.

8) This Court has considered the submissions made and perused the

material on record.

9) On an appreciation of the rival contentions, the point for

consideration by this Court is whether the granting of fishing rights by

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conducting auction in respect of the subject matter tank is sustainable?

At the outset, it may be noted that the impugned proceedings dated

07.01.2022, inter alia, provides that the lease rights are upto 30.06.2022

and thereafter the lease would not be extended, under any

circumstances. No material is placed before this Court that after

30.06.2022, a fresh auction in respect of the fishing rights was conducted

and by efflux of time, the lease got expired. Thus, the proceeding dated

07.01.2022 worked itself out.

10) However, in the light of the submissions made that the public

auction in respect of the subject matter tank is contrary to the judgment

and decree in O.S.No.54 of 1974 on the file of the court of the learned

District Munsif, Kuppam, the matter is further examined. In the said

judgment, as rightly contended by the learned counsel for the petitioners,

the learned District Munsif had dealt with several aspects with regard to

the earlier suits and framed the following issues:

i) Whether the plaintiffs are entitled to injunction as prayed for?

ii) Whether the suit is bad without adding Government as party to the suit?

iii) Whether the suit is bad without a prayer for declaration of title to the plaintiffs?

11) With reference to Issue No.2, the learned trial Judge decided the

same against the defendants while holding that "so long as the original

grant by the Government in favour of the predecessors in title of the

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plaintiffs has not been questioned by the defendants. I find there is

nothing compelling the plaintiffs requiring them to add the Government as

party to the suit and that for its non-joinder the suit is bad."

12) Issue No.3 is decided in favour of the plaintiffs and the learned trial

Court held that "there is no necessity that the plaintiffs have to further

seek to declare their title to the fishery rights in the suit tank and in my

opinion the suit is found to be not bad without prayer for declaration of

title by the plaintiffs as contended by the defendants."

13) Coming to Issue No.1, it appears that the Gram Panchayat / 1st

defendant contested that the plaintiffs cannot claim the fishing rights in

respect of the suit tank as they have been vested with the Gram

Panchayat by virtue of Section 65 (1) (a) of the A.P. Gram Panchayat Act.

Learned trial Court rejected the said contention, inter alia, holding that

"there is absolutely no record to show that the Government had by any

means had chosen to transfer the minor irrigation taks within the area of

the defendant Panchayat to the defendants under the provisions of

Section 65(1)(a) of the Andhra Pradesh Gram Panchayat Act at any time

prior to the suit."

14) While decreeing the suit and granting injunction as prayed for,

learned District Munsif categorically held as follows:

"In the absence thereof the only inference is that the plaintiffs have been in continuous possession and enjoyment of the suit tank and were in enjoyment of their respective fishery rights therein continuously and uninterruptedly all these length of years and as such

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their rights in the suit tank have to be maintained, in the absence of any enabling order of the Government in favour of the defendants evicting the plaintiffs therefrom."

15) Despite such adverse findings, to the reasons best known to the

Gram Panchayat, the above said judgment and decree were not

questioned by it and thus the same attained finality. In the light of the

said Judgment and Decree the various contentions advanced by the

learned Standing Counsel falls to ground. As noted above, similar

contentions with regard to the vesting of the suit schedule tank by virtue

of the provisions of the A.P. Gram Panchayat Act, 1964 were rejected by

the learned District Munsif Court.

16) Considering the matter in its entirety and in the light of the

judgment and decree in O.S.No.54 of 1974, this Court is of the

considered opinion that conducting public auction in respect of the fishing

rights of the subject matter tank is not tenable. Accordingly, the