Andhra Pradesh High Court - Amravati

Sri Nehru Fishermen Cooperative ... vs The State Of Andhra Pradesh on 19 November, 2024

 APHC010531492022
                    IN THE HIGH COURT OF ANDHRA PRADESH
                                  AT AMARAVATI             [3330]
                           (Special Original Jurisdiction)

       TUESDAY ,THE NINETEENTH DAY OF NOVEMBER
           TWO THOUSAND AND TWENTY FOUR

                               PRESENT

THE HONOURABLE SRI JUSTICE TARLADA RAJASEKHAR RAO

                     WRIT PETITION No:
                                   N 32393/2022

 BETWEEN:

 Sri Nehru Fishermen Cooperative Society Limited,    ...Petitioner

                                 AND

 The State Of Andhra Pradesh and Others         ...Respondent(s)

 Counsel for the Petitioner:

    1. M VIDYAVATHI

 Counsel for the Respondent(S):

    1. GP FOR PANCHAYAT RAJ RURAL DEV

    2. N SRIHARI

 The Court made the following:
                                    2




ORDER:

The present Writ Petition is filed under Article 226 of

Constitution of India for the following relief/s:

"to issue a Writ or Writs, Order or Direction, more particularly one in the nature of Writ of Mandamus, declaring the action of the Respondents for not granting lease in favour of the petitioner Society in respect of Jaggarayudu Cheruvu (Tank) located in Sringarayunipalem village, Kirlampudi Mandal, Kakinada District, for the period of 3 years i.e. from 1.7.2022 to 30.6.2025 as per G.I.Ms.No.343 dated 10.4.1978 as bad, arbitrary, contrary to G.O.Ms.No.343 dated 10.4.1978 and also offends Arts. 14, 19(1)(g) and 21 of the Constitution of India and to pass such other or further orders as are deemed fit and proper, in the interest of justice and fair play"

2. The case of the petitioner is that the Society was registered

on 30.10.2000 vide registered No.B.146 under the Andhra

Pradesh Cooperative Societies Act, 1964 and it consists of 17

members where the area of operation covers S. Thimmapuram

and Sringarayunipalem villages, wherein the tanks namely

Mungarlamma Cheruvu and Voora Cheruvu are in

S.Thimmapuram and Jaggarayudu Cheruvu is in

Sringarayunipalem village. Since the inception of the petitioner-

society, respondents are granting lease in favour of the Society

as per G.O.Ms.No.343, dated 10.04.1978 which includes

G.O.Ms.No.499 dated 25.11.1998 and G.O.Ms.No.546 dated

25.3.1999.

3. The 5th respondent i.e. Panchayat Secretary,

Sringarayunipalem issued a notice to the petitioner requesting the

petitioner to bailout the water from the said Cheruvu/tank and

hand it over to the Gram Panchayath for the purpose of cleaning

the tank which was polluted with dust, meat, etc., and to develop

the tank and thereon grant lease. Accordingly, the petitioners

herein handed over the said Jaggarayudu Cheruvu to the 5 th

respondent for development. Thereafter, the 5 th respondent

addressed letter refusing to grant lease in favour of the petitioner-

society for the year 2021-2022 on the ground that the Panchayat

has to discuss with higher officials and decide the matter.

Thereafter, the petitioners herein have addressed several letters

to the 5th respondent- Panchayat Secretary for lease of the said

Jaggarayudu Cheruvu (Tank). Hence, the present Writ Petition is

filed to direct the respondents to grant lease of Jaggarayudu

Cheruvu on the ground that the members of the Society solely

depended on fishing and eking out their livelihood as they have

no other source of income and not granting the said Jaggarayudu

Cheruvu / Tank for fishing rights to the petitioners, they are not

able to sustain their life, which is in violation of Article 21 of the

Constitution of India.

4. The Panchayat Secretary-5th respondent has filed its

counter and stated that the petitioner-society has no vested right

for granting fishing hold rights over the Panchayat's Tank, which

was converted into the drinking water tank and the Gram

Panchayat has every right to make its tank as drinking water tank

and the Gram Panchayat was communicated to the petitioner-

society that the tank was converted into drinking water tank and

thereby not intended to give for fishing lease hold rights. Hence,

prayed to dismiss the Writ Petition.

5. The District Panchayat Officer has filed the counter affidavit

asserting that the villagers and elected body of

Srungarayunipalem Gram Panchayat have requested to set apart

the Jaggarayudu Tank as drinking water Tank and not to grant

any lease to the said tank. They also acknowledge that there is

an Overhead Service Reservoir (OHSR) to supply water to the

village, but in the event of a cyclone, heavy rains, or other natural

calamities, there could be power interruptions., in such cases, the

Jaggarayudu Tank would be the only source of drinking water,

making it necessary to reserve it for that purpose.

6. The petitioner's counsel argues that the Gram Panchayat is

using this defense to avoid leasing the tank to the petitioner

society, despite the Overhead Service Reservoir (OHSR) being

sufficient to meet the water needs of Srungarayunipalem village.

The counsel contends that the Panchayat is refusing to lease the

tank with a malafide intention, which could result in revenue loss

for the Panchayat. Additionally, the counsel points out the

possibility of the tank being leased to third parties. Therefore,

urged the Court to direct the Panchayat to lease the tank to the

petitioner society, emphasizing that fishing in the tank is the only

source of income for the petitioner society and that the

Panchayat's decision infringes upon their right to life under Article

21 of the Indian Constitution.

7. At this point, the learned Government Pleader for the

Panchayat Raj Department submits that it is merely a

presumption, and there is no intention to grant a lease to any

fishing society. If the Gram Panchayat decides to lease the

Jaggarayudu Tank, the petitioner's request will be considered,

and the Court may record it accordingly.

8. The Hon'ble Apex Court in the Judgment of Narmada

Bachao Andolan v. Union of India & Others1, held in para 248,

that the majority, after referring to Resolution of United Nations

Organization (UNO), observed:

"248. Water is the basic need for the survival of human beings and is part of right of life and human rights as enshrined in Article 21 of the Constitution of India and can be served only by providing source of water where there is none.

9. The Judgment of the Hon'ble Apex Court suggests that the

government has an obligation to ensure access to this

fundamental resource, especially in areas where water sources

are either inadequate or absent.

10. Although the contention raised by the learned counsel for

the petitioner seems valid and genuine, this Court cannot reject

the defense raised by the respondent Gram Panchayat, which is

to reserve the Jaggarayudu Tank for drinking water in case of any

emergency. It is not the case of Gram Panchayat that there is no

other source of water or inadequate resources.

2000 (10) SCC 664

11. After considering the arguments of both the petitioner and