IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.03.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.634 of 2007 A/M Karpaga Sundara Vinayagar Koil Raghunathapuram – rep. By its Fit Person Raghunathapuram Village, Thiruthuraipoondi Taluk, Thiruvarur District .. Appellant/ Appellant vs. 1. Nunakkadu Panchayat rep. By its President V.Vellaiyan Thiruthuraipoondi Taluk, Thiruvarur District 2. Baby 3. The State of Tamilnadu rep. By its District Collector Vilambal Village, Thiruvarur, Thiruvarur District. 4. A.Gunasekaran .. Respondents/ Respondents This second appeal is filed against the judgment and decree dated 08.08.2006 passed by the Subordinate Judge at Mannargudi in A.S.No.32 of 2006 which preferred by the appellant herein against the decree and judgment dated 30.11.2004 in O.S.No.18 of 2004 on the file of District Munsif Court, Thiruthuraipoondi. For Appellant : No appearance For Respondent : Mr.V.Bharathidasan (R1) Mr.Kesavan (R2) https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T This second appeal is focussed by the original plaintiff, animadverting upon the judgement and decree dated 08.08.2006 passed in A.S.No.32 of 2006 by the Subordinate Judge, Mannargudi, confirming the judgment of the trial Court, namely, District Munsif Court, Thiruthuraipoondi, in O.S.No.18 of 2004. For convenience sake, the parties are referred to hereunder according to their litigative status before the trial Court. 2. Pithily and precisely, tersely and briefly, avoiding discursive delineation of facts in view of the case of both sides having been set out in detail in the judgments of both the Courts below, I would like to set out the germane facts thus: The second appellant/plaintiff herein filed the suit seeking the relief of declaration against the 1st plaintiff declaring him of having the fish farming rights of the suit property and also for permanent injunction retraining the defendants from any manner interfering with such rights in the suit property. The defendants resisted the suit by taking various pleas. 3. During trial, on the side of the plaintiffs, Veeraiyan was examined as P.W.1 and Thirugnanam was examined as P.W.2 and Exs.A1 to A9 were marked. On the side of the defendants D.W.1, D.W.2 and D.W.3 were examined and Ex.D1 was marked. 4. Ultimately the trial Court dismissed the suit as against which an appeal was filed as Appeal No.21 of 2002 before the District Court, Nagapattinam, which Court remanded the matter. Thereafter the suit was numbered as O.s.No.18 of 2004 before the District Munsif, Thiruthuraipoondi, which Court dismissed it, as against which an appeal in A.S.No.32 of 2006 was filed by the unsuccessful plaintiff, the appellant herein and it was also dismissed. Being disconcerted and aggrieved by the judgments and decrees of both the Courts below, this Second Appeal has been filed on various grounds as set out in the memorandum of appeal and also suggesting the following proposed substantial questions of law: "1. Whether the fishery rights is an immovable property and hence warrants Stamp duty and Registration of the document and whether the Courts below are justified in holding that Ex.A7 executed by the Villagers cannot be accepted? 2. Whether the 1st plaintiff temple has established that it is vested with the Fishery rights of the suit tank ever since 1983, as held by the learned District https://hcservices.ecourts.gov.in/hcservices/ Judge in A.S.No.21 of 2002, whether the onus shifts upon the 1st defendant Panchayat to prove that the said Fishery rights of the suit tank is vested with them? 3. Whether the claim of the 1st plaintiff that as per Sec.132 of the Tamil Nadu Panchayat Act, unless the Government specifically entrusts the Fishery Rights of a tank to a Village Panchayat, the concerned Panchayat cannot claim the Fishery Right of the tank, is justified? 4. Whether there must be a specific declaration from the Government to the village Pachayat regarding the vesting of the Fishery Rights in common irrigation tanks? 5. Whether the Judgment reproted in 2002(5) CTC page 503 applies to the facts of the present case also? 6.Whether adverse inference can be drawn against the defendant Panchayat for not having produced any documentary evidence to show that they have been auctioning the Fishery Rights of the suit tank, despite the evidence of D.W.2 that the relevant registers containing the details such as the names of the tanks which are under the control of the Village Panchayat, and for which tanks the Fishery Rights have been given, are available with the 1st defendant Panchayat? 5. The learned counsel for first defendant would develop his argument to the effect that even though the appellant in the Second Appeal would contend that the Villagers of that locality gave the right to administer the pond, both the Courts below negatived it by clearly holding that the said pond is part of poramboke and it belongs to Government and it is under the control of Panchayat. 6. Despite printing the names concerned, no one appeared for the appellant as well as for D3 to D4. 7. A bare perusal of and poring over the relevant records including the typed set of papers and the certified copies of judgments of both the Courts below demonstrate and display the fact that earlier the suit O.S.No.226 of 2000 was filed by the first plaintiff and R4 Gunasekaran, seeking the relief of declaration of the 1st plaintiff's fish farming rights in the suit property and also for permanent injunction retraining the defendants from any manner interfering with the such rights in the suit property. 8. At this juncture my mind is redolent and reminiscent of the following provision of law:- https://hcservices.ecourts.gov.in/hcservices/ "Sec.14-A Ryotwari patta not to be granted in respect of private tank or oorani -(1) Notwithstanding anything contained in this Act, no ryotwari patta shall be granted in respect of any private tank or oorani". Section 5 of Tamil Nadu Act No.49 of 1974 is reproduced hereunder:- "Act to override other laws, contracts, etc. - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or any custom, usage or contract or decree or order of a court or other authority". The cited provision supra, would indicate that it contains Henry VIII clause which would nullify any other contrary provision in any law authenticated to Section 14-A extracted supra. As such the appellant herein is having no locus standi to file the suit and no villagers are having exclusive ownership right over the suit pond. The First Appellate Court after analysing Exs.A1 to A9 clearly held that I plaintiff had no right as claimed by it warranting no interference by this Court. 8. It is ex-facie and prima-facie clear that ponds like the suit property absolutely got vested with the Government and in turn the Panchayat is vested with the right to administer the same and in such cases, I am at a loss to understand as to how the plaintiff was justified in litigating ignoring the said provision of law, which can be taken note of at any stage of the litigation and apply the same to the admitted set of facts. Absolutely there is no iota or shred molecular or minimal extent of evidence to spell out that the temple got such right by virtue of any grant or some such deeds. But only during 1983 as per the I plaintiff, the Villagers had handed over such right, which pleading is totally untenable as correctly held by both the Courts below, who also highlighted that the Villagers had no right to confer such right of administration of the pond in favour of the temple. As such the proposed 1st and 2nd substantial questions of law does not arise at all. 9. The 3rd proposed substantial question of law is with reference to Section 132 of the Tamil Nadu Panchayat Union, questioning the right of the Panchayat. Once it is found that the subject matter of the suit property belongs to the Government, then it is between the Government and the Panchayat and it is not for the temple to question it. As such the said substantial question of law also does not arise at all. The findings of both https://hcservices.ecourts.gov.in/hcservices/ the Courts below, also as correctly pointed out by the learned counsel for the 1st defendant are that the District Collector entrusted the right of administration with first defendant. 10. In view of the above, the 5th and 6th substantial questions of law also does not arise at all. 11. Accordingly, there is no merit in the second appeal and hence the same is dismissed. No costs. 30.03.2009 This S.A.634/07 having been listed on Wednesday the Fifteenth day of April Two Thousand nine for being mentioned in purusance of the order of this Court dated 30.3.2009 and made herein in the presence of the Mr.S. Sathiamurthi Advocate for the Appellant and of Mr.V. Bharathidasan, Advocate for the ISt Respondent Mr.V.S. Kesavan, Advocate for the 2nd Respondent and of Mr.R. Muthian, Government Advocate, for the 3rd Respondent this Court made the following order:- This matter is listed today under the caption "being mentioned" at the instance of the learned counsel for the plaintiff/appellant. 2. At the time of mentioning, the learned counsel for the plaintiff/appellant cited the following two decisions of this Court viz., (i) 2002 (5) CTC 503 (Alagar Iyengar and 12 others vs. State of Tamil Nadu rep.by the District Collector, Kamarajar District, Virudhunagar and another) and (ii) (1971) I MLJ 190 (N.S.Kuppuswamy Odayar and another vs. The Panchayat Narthangudi rep.by its President Murugayyan and others) and developed his argument to the effect that these two decisions, according to him would enable the villagers who are in enjoyment of the fishery rights to empower the temple authorities, to auction the fishing rights and use the auction amount for the welfare of the villagers. 3. Whereas the learned counsel for the respondent would gainsay and remonstrate the contention as put forth on the side of the temple authorities,i.e., the appellant in the second appeal. 4. In this factual matrix, it is just and necessary to consider the aforesaid two judgments as to its applicability to the facts and circumstances of this case. The decision reported in 2002 (5) CTC 503 would highlight and spotlight the fact that the Government is the authority, which could entrust the fishery https://hcservices.ecourts.gov.in/hcservices/ rights in favour of panchayat union and certain excerpts from it would run thus: "14. Section 83, as already pointed out, contemplates a declaration and unless there is declaration, there can be no vesting. As opposed to Section 83 where a declaration is contemplated, under Section 84 there is automatic vesting of water works in panchayat. Section 85 (3) provides that, "where the maintenance of any irrigation work is transferred under this section, the fishery rights of Government in such work shall be transferred to and be vested in the panchayat or the panchayat Union council, as the case may be, subject to such terms and conditions including terms and conditions regarding the utilisation of the income, as may be specified by the Government" Section 85 (1) provided that, "Subject to such conditions and control as may be prescribed, the Government may transfer to any panchayat or to any panchayat union council the protection and maintenance of any irrigation work, the management of turns of irrigation or the regulation of distribution of water from any irrigation work to the fields depending on them" 15. If there is a declaration by the Government under Section 83, then there would be vesting of communal property or income in panchayat and only where the maintenance of any work is transferred under Section 85 of the Act to any panchayat Union, the fishery rights of Government will be transferred to and vested in it and in the instant case, there was no transfer of any irrigation work and the fishery rights cannot therefore belong to the panchayat. If as contended in the written statement that tanks and channels are maintained by the Government at its expense, then it goes against the case of the second respondent under Section 85 of the Act. 16. In my considered view, Ex.B11 does not enlarge the scope of sections 83 and 85 at all. The annexure already referred to in specific terms governs only irrigation sources entrusted to Panchayat Union Council under Section 85 (1) of the Act and maintained by them or https://hcservices.ecourts.gov.in/hcservices/ by panchayats and other public water sources vested with the panchayat. The rules cannot amount to a declaration contemplated under Section 83 of the Act. In the present case, it is only the Panchayat Union, which had issued a notice of auction and not any panchayat. 23. In view of the discussion above, I have no hesitation in holding that the lower Appellate Court was in error that Ex.B11 would be sufficient to clothe the panchayat union council with rights to put up fishery rights in auction. The lower Appellate Court was also in error in relying on Ex.B10 dated 14.1.1988, which appears to be a copy of the letter from D.W.1 to the Tahsildar, Srivilliputtur, which is admittedly after the suit. It ought not to have been relied upon by the lower appellate Court. The lower Appellate Curt clearly lost sight of the full implications of ExA4 recognising the plaintiff's rights and reserving the right in the Government to revise the kist alone. It is also to be noted that the suit kanmois had not been handed over to the second defendant panchayat union." A bare perusal of these excerpts including the entire judgment would leave no doubt in the mind of the court that in the cited judgment, the ratio decidendi is that there should be specific declaration under Section 132 (Section 83 of the old Act) of the Tamil Nadu Panchayat Act, 1994 so as to confer the fishery right in favour of the panchayat union. 5. Here the factual matrix is entirely different as highlighted in my judgment dated 30.03.2009 in this second appeal. There is also nothing to indicate in the precedent cited that the villagers could confer right on a temple so as to enable the temple to exercise its right to auction fishery rights in a water body. In fact, the cited judgment is against the very second appellant herein because, the cited judgment would proceed on the basis that only the Government has got power under Section 132 of the said Act to declare the fishery right of a tank in favour of a panchayat union. If such is the position, I am at a loss to understand as to how the villagers can claim such right of Government. In fact, the cited judgment boomerangs as against the appellant herein. 6. The one other judgment cited, viz., (1971) I MLJ 190 is relating to adverse possession where the facts involved were to the effect that the tank concerned belonged to the lessors family. https://hcservices.ecourts.gov.in/hcservices/ 7. Hence, I am of the considered opinion that there is nothing to review or revise the order already passed on 30.03.2009 in this second appeal. 8. Accordingly, the second appeal is dismissed confirming the order passed by this court on 30.03.2009. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vj2 To 1. Subordinate Judge, Mannargudi 2. District Munsif, Thiruthuraipoondi. 3. The President Nunakkadu Panchayat Thiruthuraipoondi Tk Thiruvarur District 4. The District Collector Thiruvarur Thiruvarur District. 2 ccs to Mr.N. Bharathidasan, Advocate, Sr. 14515, 11123 1 cc to Government Pleader, Sr. 14143 2 ccs to Mr.S. Sathiamurthi, Advocate, Sr. 14026, 10817 S.A.No.634 of 2007 RSY(CO) kk 7/5 30.3.2009/ 15.4.2009 https://hcservices.ecourts.gov.in/hcservices/