IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY NINETH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 13506 of 2007 Between: Mallemadugu Fishermen Cooperative Society, Karakambadi, rep.by its president N.Munaiah, S/o.Nagaiah R/o.karakambadi village (post), Renigunta Mandal Chittoor District ..... PETITIONER AND 1 The Commissioner of Fisheries , Shanthinagar hyderabad 2 The District Collector, Chittoor District, Chittoor 3 The District Panchayt officer, Chittoor, Chittoor District 4 The Divisional Panchayat officer, Chandragiri Chittoor district 5 Venkatapuram Grampanchayat, rep.by its Secretary Renigunta Mandal, Chittoor District .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue a writ or order more particularly one in the nature of writ of mandamus declaring the action of the 5th respondent in disposing thelease hold rights of venkatapuram tank contrary to memorandum No.1842/Pts.IV/74-4 dated 10.11.75 attached to G.O.Ms.No.100 dated 18.1.63 as illegal, arbitrary, and violative of ARticle 14 of the constitution of India and consequently direct the 1st and 2nd respondents to grant lease hold rights of fishery wealth in Vekatapuram tank in favour of the petitioner society and pass Counsel for the Petitioner:MR.G.VIJAYA BABU Counsel for the Respondent No.: GP FOR FISHERIES The Court made the following : THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 13506 of 2007 ORAL ORDER: This writ petition is filed questioning the action of 5th respondent in disposing the lease hold rights of Venkatapuram tank contrary to memorandum dated 10.11.1975 as illegal, arbitrary and for a consequential direction to respondents 1 and 2 to grant lease hold rights of fishery wealth in Venkatapuram tank in favour of the petitioner society. The petitioner herein is a fishermen cooperative society, registered under the A.P. Cooperative Societies Act, 1964 with Venkatapuram tank as its area of operations. It is stated that as per memorandum dated 10.11.1975 attached to G.O.Ms.No.100 dated 18.1.1963 all irrigation tanks with an ayacut of 25 acres to 100 acres in Telangana region and Ac.25.00 to Ac.200.00 in Andhra region are considered as minor irrigation tanks for the purpose of classification and in terms of section 56 (1) (b) of the A.P. Panchayat Raj Act, 1994 the fishery rights in minor irrigation tanks are vested with the Gram Panchayat and the leasing rights of fishery of major irrigation tanks is vested with the Fisheries Department and the District Collector concerned is the authority to fix the rentals and grant lease hold rights. Earlier, the petitioner society filed W.P. No. 21506 of 2002 seeking a direction to the respondents therein not to interfere with the lease hold rights of the fishing operations of the petitioner society in Mallemadugu tank, Annagunta tank, Karakambadi tank, Venkatapuram tank and Vedullacheruvu tank, however, the petitioner society in the said writ petition has not pressed the controversy as to the vesting of the tank in the Gram Panchayatat and recording the said statement, the writ petition was disposed of by order dated 9.1.2003. The petitioner society contends that by the time of disposal of W.P No.21506 of 2002, there was no documentary evidence available to the effect that the Venkatapuram tank is having an ayacut area above Ac.200.00, as such it could not press the controversy with regard to vesting of tank in Gram Panchayat and now it is relying on the letter issued by the Executive Engineer, Irrigation Division, Tirupati to the effect that Venkatapuram tank in Regigunta mandal is having an ayacut of Ac.240.00. Thus, the petitioner society claims that since the ayacut area of Venkatapuram tank is more than Ac.200.00, the leasehold rights of fishery wealth in the said tank vests with the Fisheries Department and the Gram Panchayat has nothing to do with the same. The petitioner society also made a representation dated 4.12.2006 to the District Collector/second respondent herein and alleges that the same is pending and no further orders are granted. A counter affidavit is filed on behalf of the first respondent inter-alia stating that as per A.P. Panchayat Raj Act, 1994, the leasehold rights of fishery in minor irrigation tanks are vested with the Gram Panchayats and major irrigation tanks are vested with the Fisheries Department. That earlier, the petitioner filed W.P No.21506 of 2002 seeking a direction to the respondents therein not to interfere with the lease hold rights of fishing of the petitioner society and the same was disposed of on 9.1.03 observing that the controversy as to the vesting of the tank in the Gram Panchayat is not pressed by the petitioner and the cause of action ceases to exist. It is further stated that the Executive Engineer, Irrigation, issued certificate that the Venkatapuram tank is having an ayacut of 240 acres and it is a major irrigation tank vested with Fisheries Department. The 5th respondent/ Gram Panchayat filed a counter affidavit stating that the ayacut area of Venkatapuram tank is 193.48 acres and the same was certified by the Tahasildar, Renigunta mandal vide letter No.L.Dis.B/877/2006 dated 29.12.2006 and in terms of G.O.Ms No. 100 dated 18.1.1963 all the irrigations tanks with an ayacut area of Ac.25.00 to Ac.200.00 in Andhra Area vests with Gram Panchayats, as such the lease hold rights of fishing of the subject tank vest with the 5th respondent Gram Panchayat. Further a counter affidavit on behalf of all the respondents was filed in W.P.M.P.No. 16928 of 2007 in W.P. No. 13506 of 2007, sworn by the third respondent/Assistant Director of Fisheries, Fisheries Department, Chttoor stating that leasehold rights of fishing in the tanks is governed by G.O.Ms.No.100 dated 18.1.1969, G.O.ms.No.288 daetd 27.6.1983 which prescribe that the tanks having an ayacut area below Ac.100.00 vest with the Gram Panchayat and the tanks having an ayacut of above Ac.100.00 vests with Irrigation Department and all the tanks maintained by Irrigation department are being utilized by the Fisheries department for disposal of the fishery wealth in terms of G.O Ms No. 879 PWD dated 9.4.1964. It is further stated that the Commissioner, Panchayat Raj Department vide letter no. 9410/C1/07 dated 28.2.1997 clarified that the tanks having an ayacut below 100 acres only vest with Panchayat Raj department and since the ayacut of Venkatapuram tank is more than Ac.100.00, it vests with Fisheries department. It is further stated that the petitioner society is enjoying the fishing rights in Venkatapuram tank since 1976 to 2002, but in the year 2002, the 5th respondent Gram Panchayat conducted an open auction on the ground that the ayacut area of the said tank is Ac.193.00 as per the certificate issued by the Mandal Revenue officer. It is thus contended that the Venkatapuram tank is having an ayacut of Ac.240.00 as per the records and in terms of G.O.Ms No. 100 dated 18.1.1963 and G.O.Ms.No.288 dated 27.6.1983 the leasehold rights of fishery wealth of the subject tank vests with Fisheries department. The learned Government Pleader submitted that he has no instructions with regard to pendency of any representation submitted by the petitioner society and if any such representation is filed and pending before the District Collector, the same will be considered and disposed of in accordance with law. Heard the learned counsel for petitioner, learned Government Pleader, learned counsel for 5th respondent and learned counsel for 6th respondent. The first respondent has not taken a definite stand on the issue of leasehold rights of fishery wealth, except extracting the contents of letter dated 19.12.2006 addressed by the Executive Engineer stating that the subject tank is a minor irrigation tank, being maintained by Irrigation department for the past more than 25 years and the ayacut area of the subject tank is Ac.240.00. On the other hand, the 5th respondent, based upon the topo sheet issued by the very same Irrigation Department, contends that the ayacut area of the Venkatapuram tank is only Ac.193.00 and the leasehold rights of the fishery wealth vest with the Gram Panchayat. It is surprising to note as to how the Irrigation Department takes two different stands, inasmuch as, in the topo sheet issued in the year 1997 the ayacut area of the subject tank is mentioned as Ac.193.00 and subsequently in the letter dated 19.12.2006 issued by the Executive Engineer, Irrigation Division, the ayacut area of the subject tank is mentioned as Ac.240.00. Unfortunately, the petitioner society has not chosen to make the Irrigation Department as a party respondent to the present writ petition, though it claims the relief in the writ petition basing on the letter issued by the Executive Engineer, Irrigation Division, Tirupati. The controversy in nutshell, is with regard to grant of leasehold rights of fishery wealth of the subject tank, which depends upon the ayacut area of the tank. The ayacut area of the subject tank is in dispute, inasmuch as the petitioner claims it as Ac.240.00 and the 5th respondent claims it as Ac.193.00, which can only be resolved after conducting a proper survey and enquiry by the concerned officials and determination of actual ayacut area of the subject tank and the same cannot be decided by this Court. Hence, this Court deems it fit to dispose of the writ petition with the following directions; The second respondent/District Collector is directed to decide the leasehold rights of the fishery wealth of the Venkatapuram tank by conducting a proper survey as regards its actual ayacut area and dispose of the representation of the petitioner society dated 4.12.2006 expeditiously before the fishing season starts and preferably within a period of two months from the date of receipt of copy of this order. Subject to above, the writ petition is disposed of. No costs. ____________ N.V.RAMANA,J DATE: 29.2.2008 TVK THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 13506 of 2007 Date: 29.2.2008