KODAMTHURUTH PANCHAYAT Vs. VASU PILLAI

JUDGEMENT

(1.) THE learned single judge has declared that the right of the Panchayat to auction out the privilege to catch fish will not extend to the area connected with the sluices of area or areas adjacent to the land appertaining to the five sluices described in the Original Petition. THE appellant, which is the Panchayat, feeling aggrieved by the said declaration has filed this appeal as it obviously affects its rights to auction fishing rights in the said area. THE contention of the learned counsel for the appellant is that the view taken by the learned single judge that the proviso to S. 82 (1) of the Kerala Panchayats Act is attracted to the sluices and the areas nearby and that therefore the same does not vest in the Panchayat is not correct. S. 82 (1) and the proviso, which are relevant for the purpose of this case, may be extracted as follows: "82. Vesting of water course, springs, reservoirs, etc. in Panchayats.- (1) All public water courses (other than rivers passing through more areas, than the Panchayat area which the Government may, by notification in the gazette, specify), springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, 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 Panchayat or otherwise, and also any adjacent land (not being private property)appertaining thereto shall stand transferred to, and vest in, the Panchayat: Provided that nothing contained 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. " If the disputed area is covered by the proviso to sub-s. (1) of S. 82. the same will not stand vested in the Panchayat. If the same does not stand vested in the Panchayat it will have no right to auction the fishing rights in the said area. So the only question for consideration is in regard to the scope and ambit of the proviso to sub-s. (1) of S. 82 of the Kerala panchayats Act, and as to whether the same is attracted to the facts of this case.

(2.) IN para 2 of the writ petition, the writ petitioners have described the factual position as follows: "the irrigation for cultivating the above paddy lands of the petitioner comprising part of the aforesaid Padasekharam is made available to the petitioners through sluices constructed by Government on bunds. The sluices have been constructed by Government on the bank of the vembanad Olayappu Kayal and the water enters the Padasekharam through five main sluices constructed by Government as part of its minor irrigation programme for the benefit of the cultivators of the Padasekharam. These sluices are situated in the Kodamthuruth Panchayat and come under the minor irrigation department of government" The factual statements made in this paragraph are not controverted. Thus, it becomes clear that the sluices have been constructed by the Government on the bank of Vembanad Olayappu Kayal for the purpose of enabling the letting of the water through the five sluices for the benefit of cultivators of the Padasekharam. The expression work of irrigation or irrigation work is not defined in the Kerala Panchayats Act. We find that expression 'irrigation work' has been defined in S. 2 (5) of the travancore-Cochin Irrigation Act, 1956. Clause (b) of S. 2 (5) says that the irrigation work includes sluices also. Having regard to the factual statements made in Para. 2 of the writ petition, which is not disputed, and the definition of the expression'irrigation work' there cannot be any doubt that the sluices constitute works of irrigation. What the proviso to sub-s. (1) of S. 82 says is that the vesting contemplated by sub-s. (1) shall not take place in respect of any work which is connected with a work of irrigation or of any adjacent land appertaining to any such work. Thus it is clear that the proviso gets attracted not only to the irrigation work but to any work connected with such irrigation work and also to any adjacent land appertaining to any such irrigation work. All these areas do not stand vested in the Panchayat.