P.S. Narayana, J.@mdashThis Court on 19.9.1997 made the following order in the second appeal.
In view of the substantial questions of law raised under Nos. (a) to (f) of Memorandum of grounds of second appeal, the second appeal is admitted.
On the said date this Court also made the order in CMP No. 14101 of 1997 as hereunder:
Respondents shall not interfere with supply of water to the villagers from Ganganamma Cheruvu through overhead tank and pipelines. Both parties are restrained from catching or disposing the fish.
2. However, learned Counsel representing appellants-Gram Panchayat, represented by its Executive Officer and Sarpanch of Gram Panchayat, Kanagala, would maintain that the only substantial question of law which would arise for consideration in this second appeal is as hereunder:
Whether the findings recorded by the appellate Court be sustained in the light of different provisions of the Andhra Pradesh Gram Panchayat Act, 1964 (hereinafter in short referred to as "the Act" for the purpose of convenience) Sections 80, 81, 82, 85 and 86 of the Act in general and Section 86 in particular and also in the light of G.O. Ms. No. 343, dated 10.4.1978?
The learned Counsel had taken this Court through the findings recorded by the Court of first instance and also the findings recorded by the appellate Court and would maintain that even if Exs.A.2 and A.4 are to be taken into consideration, there is ample evidence to show that these proceedings were not acted upon and there was no follow up action and the Gram Panchayat continuously has been exercising the rights as well reflected by Exs.B.2 to B.19 in particular. The learned Counsel also would maintain that the Gram Panchayat in question had never taken a decision or never passed a resolution setting apart this land in the light of Section 86 of the Act. The Counsel also in all fairness would submit that it is no doubt true that the washermen also may have to be provided with a tank for washing purposes and in fact the same had been done by the Gram Panchayat, but for the reasons best known to them they are not inclined to accept the same and without any just cause, whatsoever, instituted the present suit praying for a relief of perpetual injunction which cannot be granted, since granting of such perpetual injunction would amount to defeating the statutory provisions under the Act aforesaid. Hence, the learned Counsel would submit that even in the light of the findings recorded by the appellate Court, such findings cannot be sustained and the second appeal to be allowed. The learned Counsel placed reliance on certain decisions to substantiate his contentions.
3. Sri Deepak Bhattacharjee, learned Counsel representing the first respondent would maintain that the stand taken by the Gram Panchayat that the tank is being set apart for drinking purpose is not a sustainable stand for the reason that the said water is not useful for drinking purposes at all. The Counsel also would submit that in the light of Exs.A.2 and A.4 the burden is on the Gram Panchayat concerned to establish that the said proceedings were not acted upon. Further, the learned Counsel would maintain that in the light of G.O. M.S. No. 343, dated 10th April 1978 in general and Rule 3 specified thereunder in particular, inasmuch as first respondent-plaintiff is having enforceable legal right, the appellate Court arrived at the correct conclusion and even otherwise whether the proceedings Exs.A.2 and A.4 in fact had been acted upon or not being predominantly a question of fact, the findings recorded by the appellate Court in this regard normally not to be disturbed and even otherwise inasmuch as the question of law pointed out by the learned Counsel representing the appellants feeing not a substantial question of law, the second appeal to be dismissed. Ultimately, the learned Counsel would conclude that even otherwise, especially, in the light of the order made in CMP No. 19093 of 1997 in CMP No. 14101 of 1997 in SA No. 718 of 1997 wherein the present second respondent had been impleaded certain factual controversies may have to be gone into and if need be further evidence to be let in and hence it would be just and proper to make an order of remand in the event of this Court not accepting with his contentions to the effect that the second appeal to be dismissed.
4. Sri G. Dharma Rao, learned Counsel representing the second respondent, who was brought on record by an order made in CMP No. 19093 of 1997 made the following submissions.
The learned Counsel would maintain that the object of the second respondent, who came on record as a society, is to extend the scheme relating to the supply of drinking water to all the villagers from Ganganamma Cheruvu by virtue of protected water scheme. The learned Counsel also would maintain that it is the interest of the public of the village as such which is involved in the present litigation and in the light of the facts and circumstances which had been well explained in the application filed to implead this party as a party, this party be brought on record. However, the learned Counsel would add that the interest of the society in a way had been safeguarded by way of interim order made by this Court. The Counsel also would maintain that in the light of the elaborate oral and documentary evidence available on record, evidence of PWs. 1 to 10, DWs. 1 to 3, Exs.A.1 to A.31, Exs.B.1 to B.32 since no further facts need be established, the matter to be decided on merits despite the fact that this party was brought on record as second respondent in the present second appeal by virtue of an order dated 18.7.2000 made in CMP No. 19093 of 1997.
5. Heard the Counsel, perused the oral and documentary evidence available on record, the findings recorded by the Court of first instance in OS No. 253 of 1982 on the file of the Principal Munsif Magistrate, Repalle, and the findings recorded by the Subordinate Judge, Tenali, in AS No. 39 of 1991 and also the stand taken by the second respondent herein who was impleaded as a party in the second appeal aforesaid.
6. The parties hereinafter would be referred to as plaintiff and defendants as shown in OS No. 253 of 1982 on the file of the Principal Munsif Magistrate, Repalle.
7. It is needless to say that the second respondent in the second appeal was brought on record at this stage by virtue of an order made in CMP No. 19093 of 1997, dated 18.7.2000. The only stand taken by the second respondent is that since the society is interested in the members of the society and the public, who are concerned with the protected drinking water scheme, they are interested in coming on record to safeguard their interest. It is needless to say that there is absolutely no conflict of interest between the second respondent and the appellants herein i.e., the defendants in OS No. 253 of 1982 aforesaid, the Gram Panchayat, Kanagala, represented by the Executive Officer and the Sarpanch, Gram Panchayat, Kanagala.
8. The plaintiff filed the suit praying for the relief of permanent injunction restraining the defendants, their men from in any way interfering with the right of fishing of washermen of Kanagala Village, who constituted the members of the plaintiff committee and from catching fish in Ganganamma Tank in S. No. 368 of Kanagala Village and for other appropriate reliefs.
9. It was averred in the plaint that the plaintiff was a affiliated body to Andhra Pradesh Washermen Development Committee, which was a registered Society under the Societies Registration Act and the washermen of Kanagala were the members of the Society and that the suit tank was exclusively used by the washermen for washing their clothes for their professional livelihood and that there were about 50 or 60 washermen families living just adjacent to the tank surrounding the tank carrying on their profession with the tank water in the suit tank. The extent of the suit tank was about 71/2 acres and that the Tahsildar, Repalle, in his D.Dis. No. 856/42, dated 19.2.1942, following the orders of the Revenue Divisional Officer, Tenali in his D.Dis. No. 1047/41, dated 7.8.1941, ordered the suit tank be eliminated from the list of tanks to be leased out for fishery sales giving effect from Fasli 1351 and that dhobies were allowed to use the tank for washing purposes without any inconveniences and that since those orders from the Government, the tank was being leased out by the Panchayat without any public auction to Rajaka Seva Sangham of the locality and the Rajakas of the village were paying amounts as fixed by the authorities to the Government towards lease of fishery rights in the tank and were enjoying the right of catching fish in the tank absolutely, uninterruptedly and without any objection from any quarter. The District Collector, Guntur, in his R.Dis. No. 6820/47, dated 29.7.1947, ordered that the suit tank would be excluded from the list of tanks in which the fishery rights are usually sold by auction each year by the Revenue Department and further instructed the Tahsildar, Repalle to eliminate the said tank from the lease of fisheries by auction at the time of the submission of the lease proposals for the Fasli 1357 and for subsequent years. Thus, the right of fishing in the suit tank by the members of the plaintiff was recognized by Government and was established by law and was complete by custom and usage for the last more than 50 years and that the defendant Gram Panchayat also recognized the right of the plaintiff in the suit tank. In pursuance of the orders of the Divisional Panchayat Officer, Tenali, in Roc. No. 3134/79-B, dated 7.9.1979, the Gram Panchayat (defendant) had leased out the fishery rights to the Rajakajana Seva Sangham in suit tank without auction as Rajaka Sangham was then called for 1979-80 and that the said Divisional Panchayat Officer, in his instructions, followed the orders of the Tahsildar, dated 19.2.1942 referred in the beginning. Again in the year 1980-81 the fishery rights were granted to Rajakajana Seva Sangham, Kanagala, by defendant in pursuance of the orders of the Divisional Panchayat Officer, Tenali, in his Roc. No. 4059/80-B, dated 22.8.1980 and that in OS No. 464/79 and IA.639/80, the Kanagala Fishermen Co-operative Society requested this Court to appoint a Receiver in respect of the Ganganamma Tank and that the defendant opposed the same contending that Ganganamma Cheruvu was set apart for the purpose of washing clothes by the local washermen, who had been using the same since 20 years and that there was no other tank for that purpose and that the Government in their Memo No. 3296/Panchayats-4/80-11, dated 21.1.1982, following G.O. Ms. No. 343, P.R. dated 10.4.1978 had informed the officials of the Panchayat Department that separate tanks other than those set apart for drinking purposes should be reserved from washermen in every village wherever it was possible and fishing rights in those tanks should be leased out to washermen without selling them in auction and that the Government had also ordered that preference to washermen should be given in leasing out fishery rights in the tanks set apart for washing of clothes without public auction. After the recent Panchayat Elections, the newly elected Sarpanch took it into his mind to deprive the Rajakas of the village of their legitimate rights in the suit tank as he felt that Rajakas did not vote for him and that he began to search ways and means for that purpose and basing his view on this ambiguous orders of higher authority like D.P.O and other higher officials, he placed a resolution in defendants meeting dated 16.7.1982 rejecting the plaintiff''s claim of fishery rights in Ganganamma Tank and giving colourful right to washermen of the village in one Rachappa Cheruvu in the same village and that the said resolution was not validly passed in the Gram Panchayat meeting and that it was opposed by the members of the Panchayat and that there was nobody to support it and that in spite of it, the Sarpanch was proceeding with his object of eliminating the washermen from the Ganganamma Tank and the said Rachappa Tank was surrounded by private houses and was of an area of below two acres and that it was never used by local washermen for washing purposes. The Sarpanch wanted to get into the resolution his mischievous intention of bye-passing the Government instructions in respect of Ganganamma Tank that the fishery rights should be given only to washermen and that with the object of eliminating the washermen from the said tank, he was openly proclaiming that he would not allow the washermen to catch fish or exercise their fishery rights in the tank in any manner, whatsoever, and that the plaintiff''s committee was prepared to pay the lease amount that was fixed by the Divisional Panchayat Officer, Tenali, to the defendant as they were doing it before and that except collecting the amount from the plaintiff society the defendants had no manner of right to prevent the washermen.
10. The first defendant filed written statement denying the allegations made in the plaint. It was pleaded that the plaintiff was not a registered body and was not entitled to the alleged benefits claimed and had no right to institute the suit. It was also specifically pleaded that the suit tank was not either set apart for washing purposes under the provisions of the Act and that the proceedings in D.Dis. No. 856/42 and D.Dis. No. 1047/41 will not confer any rights to carry on fishing in the suit tank in favour of the plaintiff and the other facts, since the said proceedings the suit tank was being leased out to the Rajaka Seva Sangham by the Gram Panchayat without public auction and Rajakas were paying the amount as alleged and that the alleged instructions of the District Collector were not true and that the plaintiff did not at all perfect any rights by custom or usage and that there was no custom or usage in the matter of grant of rights in the properties belonging to the Panchayat. It is also further pleaded that they had not exercised their rights as averred in the plaint at any point of time. Further it was pleaded that the defendant was called upon to or can recognized any rights of anybody in the matters referred to in the plaint and the houses of Rajakas were at a distance of two furlongs from the suit tank and that the houses of weavers, yerukalas and other caste people and also of Harijans were situated near suit tank and that there were public latrines near the suit tank and the further allegations made also are false and that the resolution of Gram Panchayat referred to in the plaint was absolutely valid and that there were four tanks in the village in which washermen and others are washing the clothes.
11. The second defendant adopted the written statement of first defendant.
12. On the strength of the respective pleadings of the parties, the learned Principal Munsif Magistrate, Repalle, settled the following issues:
1. Whether the plaintiff society was registered under Societies Registration Act?
2. Whether Ganganamma Tank was set apart for washing purpose exclusively?
3. Whether the plaintiff is entitled for the injunction as prayed for ?
4. To what relief ?
13. The Court of first instance recorded the evidence of PWs.1 to 10, DWs.1 to 3, marked Exs.A.1 to A.31 and Exs.B.1 to B.32, recorded findings in detail referred to the proceedings Exs.A.2 and A.4 and also the documents in detail Exs.B.1 and B.2 and further had taken into consideration the resolutions, the minutes and other proceedings and also discussed the evidence of PW.9, the Advocate-Commissioner, apart from the other oral evidence PWs.1 to 8 and also PW.10 and further discussed the evidentiary value of evidence of DW.1 and DWs.2 and 3 as well and ultimately came to the conclusion that in the light of Sections 85 and 86 of the Act read with the rules and also in the light of the voluminous documentary evidence available on record exhibits B-series, findings had been recorded that there was never elimination of this tank and though Exs.A.2 and A.4 to be taken as they are, those were never acted upon even otherwise in the absence of valid resolution in this regard by the concerned local body it cannot be said that there is any enforceable legal right available in favour of the plaintiff and accordingly negatived the relief. Aggrieved by the same, the matter was carried by way of appeal A.S. No. 39 of 1991 on the file of the Principal Subordinate Judge, Tenali and the appellate Court after referring to the respective pleadings of the parties, the issues settled by the Court of first instance and the evidence available on record in brief and also after referring to almost all the grounds raised in the memorandum of grounds of appeal framed the following points for consideration at para 10.
1. Whether the plaintiffs society is in occupation of Ganganamma Tank and it is set apart for washing purposes exclusively?
2. Whether the Kanagala Gram Panchayat has got control over the same?
3. Whether the plaintiff is entitled to the relief of permanent injunction?
4. Whether there are grounds to allow the appeal by setting aside the decree and judgment of the lower Court consequently decree the suit?
The appellate Court further discussed points 1 to 4 commencing from paras 11 to 25 and ultimately allowed the appeal with costs. The appellate Court recorded findings that by virtue of Exs.A.2 and A.4 an enforceable legal right accrued to the plaintiff and especially in the light of Rule 3 referred to above in G.O. Ms. No. 343, dated 10.4.1978, it cannot be said that the plaintiff can be non-suited and incidentally made certain observations relating to certain oral and documentary evidence available on record as well. Aggrieved by the same, the present second appeal had been preferred.
14. In the light of the respective stands taken by the parties in the pleadings and also the evidence available on record, several of the facts appear to be not in serious controversy. The evidence of PW.1 is clear and categorical relating to the existence of the plaintiff. The averments made in the plaint had been repeated in detail by PW.1. The evidence of PWs.2, 3, 4, 5, 6, 7, 8 and 10 as well also is available on record. PW.9 is the Advocate-Commissioner. Ex.A.2 is the letter addressed by the then Tahsildar to the President of the Panchayat Board, Allavaripalem, dated 19.2.1942. In it the proceedings of R.D.O., Tenali, D.Dis. No. 1047/41, dated 7.8.1941 had been referred to. Ex.A.4 is the certified copy of the proceedings of the District Collector, Guntur, dated 29.7.1947; Ex.A.1 is the application copy of A.P. Rajaka Abhivrudhi Samstha issued by Chairman in the name of Mopidevi Subbaiah of Kanagala; Ex.A.3 is the receipt; Ex.A.5 is the notice of the Tahsildar, Repalle, addressed to Mopidevi Durgaiah; Ex.A.6 is yet other notice issued by the Panchayat Board, Kanagala; Exs.A.7 to A. 13 are the miscellaneous receipts; Exs.A.14, A.19, A.20, A.21 are the different memos. Ex.A.15 is the pamphlet; Ex.A.16 is the notice issued by E.O., Gram Panchayat; Ex.A.17 is the certified copy of judgment in OS No. 464 of 1979; Ex.A.18 is the certified copy of decree in O.S. No. 464 of 1979; Ex.A.22 is the by-laws of A.P. Rajaka Abhivrudhi Samstha; Ex.A.23 is the certificate of registration; Exs.A.24 and A.25 are receipts; Ex.A.30 is the certified copy of written statement in O.S. No. 464 of 1979; Ex.A.31 is the proceedings of the E.O of concerned Gram Panchayat dated 21.8.1959; Exs.A.26 and A.27 are the report of the Commissioner and plan of the Commissioner, Exs.A.28 and A.29 are the notices.
15. It is needless to say that this oral and documentary evidence had been adduced to show that the plaintiff is having an enforceable legal right and also to show that by virtue of Exs.A.2 and A.4 and also in the light of Rule 3 aforesaid, since the plaintiff has been exercising the rights, the plaintiff is entitled to the relief of permanent injunction as prayed for. Though DW.1 was examined, since his examination was not completed for certain reasons, the said evidence of DW.1 would be of no consequence. However, the evidence of D.Ws.2 and 3 is available on record. The entries in the minutes book were marked as Exs.B.1, B.3, B.6, B.8, B.9, B.10, B.11, B.12, B.13, B.17, B.18, B.19, B.20, B.21, B.22, B.23, B.24, B.26, B.27, B.29 and B.31. The memo of Divisional Panchayat Officer, Guntur, dated 26.2.1982 was marked as Ex.B.2. The different resolutions were marked as Exs.B.4, B.5, B.7, B.14, B.15 and B.16. G.O. Ms. No. 343, Panchayat Raj and Rural Development Department, a copy of it had been marked as Ex.B.28. Ex.B.30 is the memo of Zilla Panchayat Officer, Guntur, Rc. No. 7437/89. Ex.B.32 is the application of Mopidevi Subbaiah to the Executive Officer, Kanagala Gram Panchayat, requesting to lease the tank for fishing. Exs.A-2 and A-4 had been discussed in detail and a finding had been recorded that the said proceedings had not been acted upon and in fact the local body, Gram Panchayat continue to exercise the rights and this positive finding had been recorded in the light of the different proceedings, the minutes, the resolutions of Gram Panchayat concerned.
16. It is not in serious controversy that the suit tank is a public tank and further as can be seen from the facts it is also not in serious controversy that the same was not set apart or specifically reserved for drinking water purposes till the resolution made in the year 1988. The principal question in controversy between the parties appears to be on the strength of Exs.A.2 and A.4. It is needless to say that if this Court comes to the conclusion that by virtue of Exs.A.2 and A.4 read with the rules, the plaintiff has an enforceable legal right over the tank in question, the findings recorded by the appellate Court to be confirmed. If, on the contrary, this Court arrives at a conclusion that in the light of the different provisions of the Act, especially, in the absence of any resolution by the Gram Panchayat setting apart this tank for washing purposes in the light of Section 86 of the Act in particular then the findings recorded by the appellate Court cannot be sustained and the decree and judgment made by the Court of first instance may have to be restored by allowing the second appeal.
17. As already specified above, the second respondent in the second appeal, Protected Drinking Water Scheme Consumers Society, Kanagala, was impleaded as a party in pursuance of the application made by the said party in the second appeal in CMP No. 19093 of 1997. It is needless to say that such party, who came on record at the stage of second appeal, is not having any conflict of interest with the other contesting parties like the appellants herein. May be the defence which they may putforth need not be seriously considered, since there is no conflict of interest, especially in a case of this nature where ample evidence is available on record both oral and documentary adduced by the contesting parties. Rule 3 of G.O. Ms. No. 343, dated 10th April 1978, Panchayat Raj (SAM.I) Department, reads as hereunder:
3.(a) (i): The Gram Panchayat shall lease out, except sources set apart for washing the clothes by the local washermen, the rights of fishing in minor irrigation tanks and other tanks vested in it under Clause (b) of Sub-section (1) of Section 65 and under Sub-section (2) of Section 85 of the Andhra Pradesh Gram Panchayats Act, 1964 (hereinafter called the Act), without public auction to the Fishermen Co-operative Society of the local area.
(ii) The Gram Panchayat shall lease out the rights of fishing in the tanks set apart for washing of clothes under Clause (a) of Sub-section (1) of Section 86 of the Act to the Local Rajaka Seva Sangham without public auction.
(iii) The Gram Panchayat shall lease out rights of fishing in the tanks lying in the Scheduled areas only to the Fishermen Co-operative Societies consisting of Scheduled Tribes as members or in the absence of the above to the members of the Scheduled Tribes only through open auction.
(b) The Executive Authority of the Gram Panchayat immediately on receipt of the intimation referred to under Clause (b) of Rule 2 from the Divisional Panchayat Officer; shall send an intimation by registered post acknowledgement due to the Fishermen Co-operative Society concerned, or Rajaka Seva Sangham as the case may be requesting them to give their acceptance before fifteen days from the date of receipt of the intimation whether the said Co-operative Society or the Rajaka Seva Sangham could take out the lease at the rate fixed by the Divisional Panchayat Officer.
(c) The Executive Authority, on receipt of the acceptance of the Fishermen Co-Operative Society or Rajaka Seva Sangham shall lease out the fishing rights to the said Co-op. Society or the Rajaka Seva Sangham as the case may be immediately and place the matter before the Gram Panchayat at its next meeting for ratification.
(d) The Gram Panchayat shall lease out the weeds and reeds in the Minor Irrigation Tanks or other tanks vesting in it under Sections 65 and 85 of the Act to the Local Girijan Societies only and it should adhere to Rule 2 in fixing the upset price and also to follow the procedure laid down in Clauses (b) and (c) of Rules 3 and Rule 5 of these rules in leasing the rights. These lessees should be permitted to enjoy the lease before exploitation of the fish by the Fishermen Co-operative Society or the Rajaka Seva Sangham.
18. Section 80 of the A.P. Panchayat Raj Act, 1994, the present Act, deals with vesting of water works in Gram Panchayats and Section 81 of the said Act deals with setting apart of public tanks etc., for certain purposes. Section 276 of the said Act dealing with repeal and savings no doubt specifies that the Andhra Pradesh Gram Panchayats Act, 1964 is hereby repealed. It is needless to say that the suit was instituted in the year 1982.
19. Section 65 of the Act (old Act) dealing with maintenance of irrigation works, execution of kudimaramat, etc. reads as hereunder:
(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 bonds 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 fees and on such basis for the purposes 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, 1858 (Central Act 1 of 1858) or any other law similar thereto for the time being in force, in respect of any irrigation source in the village, in case the Gram Panchayat makes default in executing the kudimaramat in respect of that irrigation source.
20. Section 85 of the said Act dealing with vesting of water works in Gram Panchayats reads as hereunder:
(1) All public water-courses, springs, reservoirs, tanks, cisterns, fountains, wells, standpipes and other water works (including those used by the public to such an extent as to give a prescriptive right to their use) whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Gram Panchayat or otherwise for the use or benefit of the public, and also any adjacent land not being private property, appertaining thereto shall vest in the Gram Panchayat and be subject to its control:
Provided that nothing in this sub-section shall apply to any work which is, or is connected with, a work of} irrigation or to any adjacent land appertaining to any such work.
(2) [Subject to such restrictions and control as may be prescribed, the Gram Panchayat shall have the fishery rights] in any water work vested in it under Sub-section (1), the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose.
(3) The Government may, by notification in the Andhra Pradesh Gazette, define or limit such control or may assume the administration of any public source of water-supply and public land adjacent to and appertaining thereto after consulting the Gram Panchayat and giving due regard to its objections, if any.
It is pertinent to note that Sub-section (3) of Section 85 of the Act specifies that the Government may, by notification in the Andhra Pradesh Gazette, define or limit such control or may assume the administration of any public source of water-supply and public land adjacent to and appertaining thereto after consulting the Gram Panchayat and giving due regard to its objections, if any.
21. Section 86 of the said Act dealing with setting apart of public tanks etc., for certain purposes reads as hereunder:
(1)(a) The Gram Panchayat may, in the interests of public health, regulate or prohibit the washing of animals or of clothes or other articles or fishing, in any public spring, tank or well, or in any public water-course or part thereof and may set apart any such place for drinking or for bathing or for washing animals or clothes or for any other specified purpose.
(b) The powers conferred by Clause (a) may, in the case of any private spring, tank, well, or water-course, be exercised by the Gram Panchayat, with the consent of the owner of such place.
(c) The Gram Panchayat may, in the interests of public health regulate or prohibit the washing of animals or of clothes or of other articles, in any private spring, tank, well or water-course from which the public have a right to take water for drinking purposes.
(2) The executive authority on receipt of a certificate from any Health or Medical Officer in the service of the Government, the Gram Panchayat or the Mandala Praja Parishad or Zilla Praja Parishad stating that the water in any well, tank, spring or other source of water-supply to which the public have access in the village, is likely to endanger or cause the spread of any dangerous disease, shall, by public notice, prohibit the use of such water. Such notice shall be served by affixing a copy of it near the source of water-supply and by beat of drum stating the number of days during which such prohibition shall last. The executive authority may modify the notice or extend the period of operation thereof without the production of a further certificate.
The language of Section 86 being self-explanatory need not be further explained.
22. In Fishermen Co-operative Society, Kuchipudi, Tenali Taluk, Guntur District v. Gram Panchayat, Pedapudi, represented by its Sarpanch, Pedapudi, Tenali Tq., Guntur District and two Ors. 1979 (2) An.W.R. 228, the Division Bench while dealing with Sections 65(1)(b) and 85(2) of the Act and Rule 3 of the Rules held as hereunder:
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 undoubtedly 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 fishery rights in minor irrigation tanks shall vest in the Gram Panchayat". From this it clearly emerges that the fishery rights in minor irrigation tanks vest in Gram Panchayat subject to the restrictions and control as may be prescribed by the appropriate authority. While in the case of weeds and reeds the restrictions are specifically limited to the auction process there is no such limitation in respect of the fishery rights in minor irrigation tanks. The restrictions and control postulated by Clause (b) in respect of the fishery rights are not limited to the auction rights only. In whatever manner the prescribed authority might like to impose restrictions and control in respect of the fishery rights it can, while in the case of weeds and reeds the authority can impose restrictions and control only in regard to their auction. It is thus manifest that the restrictions and control postulated by Clause (b) of Section 65(1) in respect of the fishery rights in minor irrigation tanks are not in any way limited or inhibited. In every fact of the fishery rights in minor irrigation tanks the prescribed authority can impose restrictions. Certainly the right to auction the fishery rights is one of them. By no stretch of construing the provision, could the right to auction be excluded from the general words used in respect of the fishery rights in minor irrigation tanks. It is abundantly clear that not only in respect of the right to auction but also in any other respect the prescribed authority can impose restrictions and control on fishery rights in minor irrigation tanks and subject to such restrictions alone the tanks shall vest in the Gram Panchayat. Therefore, the contention of Sri Hanumantha Rao that the impugned Rules 3(a)(i) and 3(b) are bad on the ground that they impose restrictions on the Gram Panchayat in the matter of auction of the fishery rights cannot be accepted. The Government, which is the rule making authority, has been vested with the power to impose restrictions and control in regard to the auction of the fishery rights as well. It is in exercise of this power they have made Rules 3(a)(i) and 3(b). We are, therefore, unable to accept the contention of the learned Counsel that these two rules are ultra vires the provisions of Section 65(1)(b) of the Gram Panchayats Act.
Then the same conclusion is arrived at if we examine Sub-section (2) of Section 85 read with Sub-section (1) of the same section. Shorn off of the unnecessary portions Section 85(1) reads thus:
All public water-courses, springs, reservoir, tanks, cisterns, fountains, wells, stand-pipes and other water works...shall vest in the Gram Panchayat and be subject to its control....
Then Sub-section (2) as it has been amended by Section 31 of Act XLVI of 1976, reads thus:
Subject to such restrictions and control as may be prescribed, Gram Panchayat shall have the fishery rights in any water work vested in it under Sub-section (1) the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof for like purpose.
It must be noticed that a significant change has been effected by Act XLVI of 1976 in Sub-section (2). Before that amendment, only the words "the Gram Panchayat shall have the fishery rights" existed in Sub-section (2). Now in the place of those words the following words have been substituted:
Subject to such restrictions and control as may be prescribed, Gram Panchayat shall have the fishery rights." This is undoubtedly a very meaningful modification of the power of the Gram Panchayat. The same restrictions and control as are postulated under Clause (b) of Section 65(1) in regard to the fishery rights in minor irrigation tanks are now provided for by virtue of the amendment to Section 85(2). 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. While Section 65(1)(b) limits those restrictions and control only to minor irrigation tanks, Sub-section (2) of Section 85 is much wider and more broad-based. It applies to all the water words enumerated in Sub-section (1). The word "tanks" without any limitation about its description is used in Sub-section (1). That is to say Section 85(1) takes within its sweep all the tanks of whatever nature and category they may belong to. All those tanks vest in the Gram Panchayat. But according to Sub-section (2), the fishery rights in all these tanks irrespective of their nature are subject to restrictions and control as may be prescribed by the appropriate authority. As we have pointed out earlier, this has been specifically introduced by the Amendment Act XLVI of 1976. The Legislature evidently wanted to confer power on the rule making authority to impose restrictions and control in all tanks in regard to the fishery if they so wanted.
We are therefore unable to agree with our learned brother in his conclusion that the appellant-society does not satisfy the requirement of Rule 3(a)(i). Undoubtedly Rule 3 provides for granting of fishing rights to weaker sections who are suffering from disadvantage. That is why it provides for granting of lease of fishery rights to these sections without public auction. Under Rule 3(a)(i) it is provided for doing so to the Fishermen Co-operative Society of the local area. Under Sub-clause (ii) it is provided that the fishing rights be given to the "local Rajaka Seva Sangham without public auction" in the tanks set apart for washing of clothes. It is worthy of note that a departure has been made in the sub-rule from Sub-rule (i). Here there is no mention of local area though local Rajaka Seva Sangham is mentioned. Also the local Rajakas are not required to form themselves into a cooperative society. Sub-clause (iii) provides for tanks in scheduled areas. It requires that though tanks should be given to Fishermen Co-operative Societies consisting of scheduled tribes and members or in the absence of the above, to the members of the scheduled tribes only through open auction, there are no territorial limitations imposed on the scheduled tribes and members, who are members of the Fishermen Co-operative Societies in scheduled areas. Even if there are no Fishermen Co-operative Societies consisting of scheduled tribes and members, the public auction is limited to the members of the Scheduled Tribes. Once again it is sufficient that the bidders in this auction should be members of the scheduled tribes. They are not required to belong to any particular area. Thus, the theme of Rule 3 is to help the weaker sections of the population who either constitute themselves into Fishermen Co-operative Societies or Seva Sanghams and in the case of scheduled tribes and members, even without any such sanghams or societies. When there is a Fishermen Co-operative Society serving the village of Pedapudi which consists of fishermen of that village it would be violating the very spirit of Rule 3 if the benefit of Rule 3(a)(i) is not given to that society and put the tanks to public auction. The intendment of Rule 3 manifestly supports the construction we have laid on Rule 3(a)(i) and the conclusion we have arrived at. Therefore, the appellant-Co-operative Society is certainly entitled to the benefit of Rule 3(a)(i) and the Divisional Panchayat Officer was well within his powers when he directed that the fishery rights in the tanks in Pedapudi Village should be given to the appellant-society.
23. In
On a consideration of the rival contentions, we are inclined to accept the construction contended for by the petitioner. We are of the opinion that, if on the date of the commencement of the Act a land is registered as ''tank'' in the village revenue records, then it would vest in the Gram Panchayat on that date, notwithstanding the fact that water is stored only in a part thereof, the remaining part having become silted up. This would be so even in a case where the whole of the land has become silted up and no water is being stored therein. Even in a case where the land, having become silted up is in the occupation of encroachers, the land vests in the Gram Panchayat statutorily, and it is the duty of the Gram Panchayat to take steps for evicting the encroachers, and to restore the tank to serve its intended communal purpose. It must be remembered that, u/s 2 of the A.P. Land Encroachment Act, 1905, all such tanks vest in the Government. It is only by virtue of Section 85 of the Gram Panchayats Act that they are vested in the Gram Panchayat. If it is said that only the portion where the water is stored, vests and not the silted up portion, then the Gram Panchayat would have difficulty in restoring the tank, or extending the area of water-spread. Then again, in each case, it would be a question of fact what precisely is the area which was covered by water-spread, on the date of commencement of the Act? It would lead to endless controversies and complications, and would only tend to put a premium upon encroachers and other persons holding an interest adverse to the community of the village. Section 85(1) not only vests the tanks in the Gram Panchayat, but also any adjacent land, not being private property, appertaining thereto. In our opinion, if there is any silted up portion that would be a land appertaining to the tank, and not being private property it vests in the Gram Panchayat. As we have said earlier, even in an extreme case where the whole of the tank has become silted up, it still vests in the Gram Panchayat, and it is the duty of the Gram Panchayat to restore the same and make it available for communal use. For the above reasons, we hold that, on the date of the commencement of the Act, the whole of R.S. No. 111 with an extent of Acs.3-84 cents, vested in the Gram Panchayat u/s 85 of the Act.
The second question is: what is the scope and extent of vesting under Sub-section (1) of Section 85? As pointed out by the Supreme Court in
A reading of Section 85(1) makes it clear that all public water-courses, springs, reservoirs, tanks, and other water works, including those used by the public to such an extent as to give a prescriptive right to their use, are vested in the Gram Panchayat, and placed under its control. It cannot obviously mean conferring full title, because they are public water-courses and tanks, wherein the public may have acquired a prescriptive right to their use. Subsections (2) and (3) make it clear that, it shall be open to the Government, even after the vesting, to place restrictions upon the Gram Panchayat in the matter of enjoyment and use of such tanks, etc. Indeed, Sub-section (3) expressly empowers the Government to assume the administration of any such tank, or to define or limit the control which is vested in the Gram Panchayat. The provisions of Sub-sections (2) and (3) are inconsistent with a total vesting of ownership in the Gram Panchayat. Reading Section 85 as a whole, it appears that what is vested is only the possession and control over such public water-courses and tanks etc., for being used for the benefit of the community. It does not amount to total divesting of the Government, nor does it amount to undoing, or abolition of the rights which the public may have acquired therein by the date of vesting. It would, therefore, follow that, once a notification is issued under Sub-section (3), the Gram Panchayat becomes divested of the possession and control vested in it and thus goes out of the picture completely. In other words, the possession and control of the tank reverts to the Government subject, of course, to the rights of the community to its use. In this case, such a notification under Sub-section (3) has been issued, a copy whereof is found in the records. The correctness or validity of the said notification is not in question in this writ petition. Indeed, it is brought to our notice that the said notification was questioned by the Gram Panchayat by way of a writ petition, but the same was dismissed by this Court on the ground that alternative remedies are available to the Gram Panchayat. Be that as it may, for the present purpose we have to proceed on the assumption that the notification is good. If so, the Gram Panchayat, goes out of the picture. The Gram Panchayat being a statutory body, and being capable of and bound to act only in accordance with the statute, would have no say in the matter. Accordingly, we hold that the present writ petition filed by the Gram Panchayat is not maintainable. It may be noted that the notification u/s 85(3) of the Act was issued even prior to the filing of the present writ petition.
In view of the opinion expressed by us on the second question, it is really not necessary for us to express any opinion on the question raised by the learned Counsel. We have already observed that once a notification under Sub-section (3) of Section 85 is issued, the Gram Panchayat goes out of the picture completely, and the tank vests in the Government, subject, of course, to the rights of the community to its use. The Government being the owner of the tank is entitled to put it to such use as it thinks appropriate, subject always to the rights of the community. It cannot be suggested that once there is a tank, the Government is bound to maintain it as a tank for all times to come. If the purpose which is served by the tank is met by some other source, or by some other means, there can be nothing preventing the Government from putting such tank to some other use. It may even be entitled to breach or fill up the tank and put it to such better use as it thinks appropriate. It is, however, obvious that, in case of any such diversion or change, the persons affected if any, would be the members of the community of the village as such, and it is they alone who can complain, if any of their rights are prejudicially affected. Inasmuch as this writ petition is filed only by the Gram Panchayat, and since the issuance of the notification u/s 85(3) is a complete answer to this writ petition, it is not necessary for us to pursue this line of enquiry further.
24. In Anna Narasimharao and Ors. v. Kurra Venkata Narasaiah and Ors. (1981) 1 An.WR 323, the learned Judge of this Court while dealing with Section 85 of the Act, the scope and ambit thereof observed at Para 4 as hereunder:
The question that arises for consideration in this case is no longer res integra. A long series of decisions of this Court have taken a consistent view that the Government has no such power. The first case to be mentioned is the judgment of a Division Bench consisting of Shri Chandra Reddy, the Chief Justice and Anantanarayana Ayyar, J., in LPA Nos. 99 and 120 of 1957, dated 21st October, 1959. In that case the language of Section 77 of the Madras Village Panchayat Act which is pan materia with the present Section 85 had fallen for interpretation. The learned Judges in that case observed that the Madras Land Encroachment Act is based on the premise that the rights of the public in the public roads, streets, lakes, etc., are preserved to the community. They have next considered the scope and meaning of Section 77 of the Madras Village Panchayats Act, 1950, verbatim corresponding to Section 85 of the Andhra Pradesh Gram Panchayat Act and held that that Act does not clothe the State Government with power to interfere with the rights of the public. In that case the observation of the learned Judges to the effect that the rights of the community would not be lost merely because part of the tank had been silted up and had, therefore, gone out of use of the community would clearly show that a tank once registered in the Revenue records of the Government as a tank poramboke would not cease to be available for the needs of the community, merely by reason of cessation of user either by the community or by the Gram Panchayat This judgment was followed by M. Ramachandra Raju, J., in Second Appeal No. 226 of 1962. Without reference to these judgments, Obul Reddy, J., reached the same conclusion on the basis of slightly different reasoning. In a judgment delivered in W.P. No. 6194 of 1973, dated 21st March, 1974, the learned Judge having noted the provisions of Section 85 of the Andhra Pradesh Gram Panchayat Act ruled that as there was no provision in the Gram Panchayat Act enabling the Government to deal with the tanks vested in the Gram Panchayats by reason of the aforesaid Section 85 of the Gram Panchayat Act, the Government is without power to assign these land. That judgment of Obul Reddy, J., was followed by Chennakesav Reddy, J., in W.P. Nos. 1283 and 1677 of 1977. In that judgment Chennakesav Reddy, J., considered the question whether the Government has the power to assign these lands and answered it in the negative in the following words:
That raises the question whether the Government has power or the jurisdiction to take away the total control of any part of the tank vested in the Gram Panchayat and assign it to landless poor persons and political sufferers. Sub-section (3) of Section 85 permits the Government only to define or limit the control over the tank. It may also assume the administration of any public source of water supply after consulting the Gram Panchayat for better administration. It does not annul the vesting of tank or the water source in the Gram Panchayat.
Muktadar, J., in a judgment reported in Narisireddy v. Government of Andhra Pradesh (1979) 1 APLJ 387, had come to a similar conclusion. Following these judgments, it must be held that the assignment of these lands in this case is forbidden by the State Government to 3rd defendant V. Narasimhaswamy and is clearly unauthorised and that the lower Courts are clearly right in decreeing the suits as prayed for. But, Miss. V. Laxmidevi in a thoroughly prepared argument contended that in many of these cases the meaning of the word "vest" occurring in Section 85 was taken without any careful examination as including vesting of proprietary rights also. Her argument is that the word "vest" has various meanings and that word was used in Section 85(1) in the sense of vesting in the Gram Panchayat not any proprietary rights in the tank bed lands, but only control and user of those tanks in the Gram Panchayat. In support of this argument she relied upon the language of Section 85(3) of the Gram Panchayat Act. That the word "vest" would not always carry the meaning of vesting of a proprietary title in a part is clearly illustrated by the judgment of the Supreme Court reported in
25. Further reliance was placed on the decision of learned Judge of this Court in Doddigunta Fishermen Co-operative Society Ltd., Doddigunta, rep. by its Secretary, V. Appa Rao v. The Venkatapuram Gram Panchayat rep. by its Sarpanch and Executive Authority, Venkatapuram, Rangampet Taluk, E.G. Dist and Ors. 1984 (2) APLJ 268, wherein the learned Judge observed at Paras 7 and 8 as hereunder:
Two questions arise here. Firstly whether the rule is directory or mandatory and secondly whether there was any notice at all even orally. The rules relating to fishery rights were framed under G.O. Ms. No. 343, Panchayat Raj Department, dated 10.4.1976 with a view to give preference to the Fishermen Co-operative Societies in the matter of fishing rights. These rules have a special purpose and the object is to help the backward sections of the Society. The Rules contemplate that they must be given the option to take the lease at the upset price, which is considered to be a reasonable price. The reason is that these Societies cannot afford to compete with others in open auctions. For achieving this object, Rule 3(b) prescribes that option should be given to them by sending intimation by Registered Post with Acknowledgment Due to ensure effective service and to see that no manipulations are made. In fact in the draft rules there is no such provision. But, after considering the representations received this requirement was made. This indicates that after deliberation this clause was inserted to see that the intimation reaches the Societies. There is a further obligation namely that the societies must be asked to send their acceptance within fifteen days from the date of receipt of the intimation. Most of the members of these Fishermen Co-operative Societies are illiterate and they may just sleep over the matter in order to alert them these rules prescribe the mode of service and the contents of the intimation. In my view, therefore, these rules have to be complied with strictly, and any non-compliance will render the proceedings illegal. Therefore, I hold that Rule 3(b) of the Rules as mandatory.
The next question for consideration is whether there is any notice at all as contended by the learned Counsel for the respondents. The counter-affidavit of the Sarpanch is delightfully vague. It is just said that the Society was informed. The time, place and date on which the Society was informed is not mentioned. Except a bald denial that the allegation regarding notice is incorrect, we find nothing in his counter. The 2nd respondent, Divisional Panchayat Officer, had stated in his counter that the Sarpanch in his statement dated 6.11.1983 admitted that he did not send any notice by himself, but he informed Sri Anchuri Nageswara Rao, President of the Society, when the latter had come to request him for grant of the lease. The date on which the President of the Society was informed is not mentioned anywhere. Then it is submitted that if the Society had not been informed they could not have given two letters dated 20.9.1983 and 29.9.1983 that they are unwilling to take the lease. These two letters are denied by the President of the Society. In the enquiry before the Divisional Panchayat Officer, the President of the Society had stated that the Sarpanch had taken two blank papers with his signatures, telling him that he would negotiate with the authorities with regard to the upset price and that these two papers were used to show that the Society expressed its unwillingness to take the lease. The Gram Panchayat produced the file. I have seen these two letters. The first letter, which is said to have been received on 20.9.1983, is un-dated. In contains the signatures of the President of the Society and thumb impressions of six others who are said to be the members of the Society. From a look at this letter, I am not at all convinced that it is a genuine one. The other letter is dated 29.9.1983, which is signed by the President of the Society. If really a letter was given on 20.9.1983 expressing its unwillingness to take the lease, there was no necessity to send further letter on 29.9.1983. There is no reference to the earlier letter in the letter dated: 29.9.1983. In the letter dated 29.9.1983 it is said that the Fishermen Co-operative Society after discussing this item at its meeting had opined that they were not willing to take the lease. The Counsel for the petitioner had placed before me the Minutes Book of the Society. It contains the proceedings of the various meetings of the Executive Committee of the Society. It appears to be a book kept in the normal course of business. There is no doubt regarding the genuineness of the book. Nowhere during the relevant period is there any resolution of the Society to the effect that they were not willing to take the lease. All these factors go to show that there was no notice at all to the Society either oral or in writing. Therefore, the averments made in the counters of the respondents that the President was informed orally and that the Society had knowledge of this has not been proved. Mr. Venkateswara Rao, learned Counsel for the 3rd respondent, relied upon a resolution of the Gram Panchayat dated 23.9.1983, in which it is mentioned that the Fishermen Co-operative Society expressed its unwillingness to accept the offer. This resolution according to him probablises his case that by that time the Panchayat was in receipt of a letter from the Society. But, there is no evidence to show that there was any letter before them on 20.9.1983 because out of two letters, one is dated 29.9.1983 and the other has no date at all. The case of the President is that blank papers with his signatures thereon, which were taken from him were made use of for this purpose. It is, therefore, difficult to hold that there was any notice at all to the Society, even orally. In the circumstances, I am convinced that there was no offer to the Society as contemplated under the rules and much less, was any intimation given in the manner prescribed by the rules. Even with regard to the oral intimation, it is not proved that the Society was informed that they have to send their acceptance within fifteen days from the date of receipt of the intimation. This requirement is not fulfilled. The auction conducted on 30.9.1983 is, therefore, clearly illegal and it is accordingly set aside.
26. The Counsel for first respondent-plaintiff no doubt placed strong reliance on the decision in Rajaka Seva Sangham, Kanumolu, Gannavaram Taluk, Krishna District, represented by its President B. Ranga Rao and Anr. v. The District Collector, (Panchayat Wing) Krishna District, Machilipatnam and Anr. 1987 (1) ALT 410, wherein the learned Judge observed as hereunder:
When once the tank is set apart for washing of the linen in the Gram Panchayat, it is mandatory under Rule 3(a)(ii), that the fishing rights therein shall be leased out without public auction to the washermen. Accordingly, having granted that right, the Gram Panchayat is devoid of jurisdiction to set apart the same to any other person.
27. On a careful analysis of the facts of the decisions referred to supra, the present question which may have to be decided is whether in the present set of facts the appellants-Gram Panchayat to succeed or the first respondent-plaintiff to succeed in the present second appeal.
28. The relevant facts and the crucial documents and in nutshell findings recorded by the Court of first instance and also the appellate Court already referred to above, the voluminous documentary evidence produced apart from the evidence of DWs.2 and 3, Exs.B1 to B.32, the different resolutions and the different minutes, would definitely go to show that though the proceedings Exs.A.2 and A.4 had been issued at a particular point of time by the concerned Revenue Authorities, for the reasons best known the said proceedings had not been given effect to or they had not been taken to their logical end.
29. It appears to be clear that the Gram Panchayat has been continuing to exercise the rights over the tank in question till a decision had been taken and resolution was made in this regard to set this apart for drinking purpose. When that being so, in the absence of any resolution in this regard in the light of the clear language of Section 86 of the Act aforesaid, it cannot be said that the plaintiff is having any enforceable legal right, especially, in the light of the fact and substantial stand taken that the tank was not set apart for washing purposes. Gram Panchayat, a legal body is entitled to take certain decisions in the interest of members of such Gram Panchayat, the public concerned with the Gram Panchayat, the voters of the Gram Panchayat, no doubt, in accordance with the provisions of the Act. Apart from this aspect of the matter even on a careful scrutiny of the whole factual matrix it appears Rule 3 of the Rules also cannot be taken aid of by the plaintiff. It is needless to say that certain decisions relied upon are distinguishable on facts.
30. In the light of the aforesaid discussion this Court is of the considered opinion that the Court of first instance recorded reasons relied upon both the oral and documentary evidence available on record referred to the resolutions in detail and came to the conclusion that the plaintiff has no enforceable legal right and ultimately dismissed the suit. The appellate Court after referring to the grounds in the memorandum of grounds of appeal having framed the points for consideration, recorded certain reasons and reversed the same on unsustainable grounds. Hence, this Court is of the considered opinion that the appellant-Gram Panchayat is bound to succeed.
31. Accordingly, the decree and judgment of the Court of first instance are hereby restored by setting aside the decree and judgment of the appellate Court and the second appeal is hereby allowed. However, in the peculiar facts and circumstances, the parties to bear their own costs.
