IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.P.RAY THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 WA.No. 2782 of 2009() ----------------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.8863/2007 DTD.16.9.2009 .................... APPELLANT(S): IST RESPONDENT --------------------------------------------------- THE CHELLANAM GRAMA PANCHAYATH, (SPECIAL GRADE), ANDIKKADAVU P.O., KOCHI-8, REP.BY ITS SECRETARY. BY ADV. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) SRI.MAHESH MENON RESPONDENT(S): PETITIONER & RESPONDENT -------------------------------------------------------------------- 1. KALATHARACHIRA PADASEKHARAM, REG.NO.ER-68/85, MUNDAMVELI P.O., KOCHI, REP.BY ITS PRESIDENT, SHRI.N.M.THOMAS, NERAKKASSERY HOUSE, MANASSERY, KANNAMALY P.O., KOCHI-8. 2. THE EXECUTIVE ENGINEER, MINOR IRRIGATION, ERNAKULAM, CIVIL STATION, KAKKANAD. 3. BENNAN VARGHESE, S/O.VARGHESE PADASSERI HOUSE, CHERIYA KADAVU, KANNAMALY P.O., KOCHI-8. 4. A.M.PETER, AZHEEKKAL HOUSE, KANNAMALY P.O., KOCHI-8. 5. THE TAHSILDAR, KOCHI. R1 BY ADV. SRI.C.P.KUNHIKANNAN R2 TO R5 BY SR. GOVT. PLEADER R4 BY ADV. SRI.S.SUJIN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.N.Ramachandran Nair & Bhabani Prasad Ray, JJ. ==================================== W.A.No.2782 of 2009 ==================================== Dated this the 17th day of February, 2011. JUDGMENT Ramachandran Nair, J. Appeal is filed by the Panchayat challenging the judgment of the learned single Judge who held that common areas adjoining the Padashekaram where prawn cultivation is going on belong to the Minor Irrigation Department of the Government and not to the Panchayat. The dispute pertains to auctioning of fishing rights by the Panchayat every year covering the common areas like the canals, the backwaters adjoining the paddy field owned by different land owners and the sharing of licence fee annually between the Panchayat and the land owners on 30:70 basis. The matter came before this Court once before wherein under Ext.P2 judgment in two cases dated 7.4.2006, the learned single Judge directed sharing of licence fee in the same ratio, that is 30:70 for the year in dispute in WA2782/09 -:2:- that year. The case of the first respondent is that the common areas are only 15 acres as against 200 acres of the Padashekaram held by private persons. However, the case of the appellant is that access for the fish, namely prawns from the backwaters to paddy field is through the common areas and the collection of fish is also by installing sluice in the canals and common areas owned either by the Government or the Panchayat. We do not think there is any significance as to whether the common areas belong to the Government Department or Panchayat. So long as the Government does not make a claim, the Panchayat is absolutely free to auction the right of fishing in the common areas. In this context it is worthwhile to refer to Section 218 of the Kerala Panchayat Raj Act wherein water course, springs, reservoirs etc. in village panchayats are vested in such panchayats. The first respondent's reliance is on the proviso of the said provision which prohibits the panchayat from interfering with the irrigation and other works which is undertaken by the Government. We do not think there is any need for adjudication on WA2782/09 -:3:- this issue wherein dispute is not on irregation but on the sharing of licence fee in auctioning the fishing rights. While the contention of the first respondent is that appellant is, at the maximum, entitled to proportionate share of the licence fee, the contention of the appellant is that the common areas are crucial in fishing and harvesting and so much so, the percentage so fixed is not disadvantageous to the first respondent. Of course, if individual farmers are allowed to engage in fish farming and to harvest the crops or licence out the facilities, it will be against the interest of the farmers because, land is covered by single block of water and access of fish from the ocean and backwaters is through the open areas owned and controlled by the Panchayat. In the circumstances, we feel the pattern of sharing of revenue in the ratio 30:70 should be acceptable to both parties. Writ appeal is therefore disposed of directing the Panchayat to auction the fishing rights in co-ordination with the first respondent Association and to share the same in the ratio of 30:70 or in other words, 30% will go to the Panchayat and 70% to the Association to be shared by WA2782/09 -:4:- members in proportionate to their holding of land. Whatever all the other requirement of the rules will be complied with by both the parties. C.N.Ramachandran Nair, Judge. Bhabani Prasad Ray, Judge. sl.