ORDER
1. This civil revision petition is filed against the order D/-15-11-90 in C.M. A. No. 93/90 on the file of the District Judge, Machilipatnam. The learned District Judge by his order allowed the appeal, set aside the order of injunction passed in I.A.No. 324/90 in O.S.No. 47/90 and remanded the matter to the trial court for further enquiry and fresh disposal remarking that findings should be recorded on the real points in controversy viz., whether the area of operation X-1, X-2, X-3, and X-4 lies within the panchayats limits of Nidamarru or Kruthivennu gram panchayats.
2. The facts leading to the present civil revision petition are as follows : Intern swamp with an outlet to the sea is situated in between Kruthivennu and Nidamarru panchhayats of Bantumilli taluk of Krishna District. A large number of fishermen in the locality were eking out their livelihood by fishing in the swamp area. Under the Indian Fisheries Act, Act IV of 1897 the Fisheries Department was granting licences to the fishermen to do fishing with different types of nets. The licences were being issued as licences to do fishing in Interu swamp area specified in condition No. I of the Licence form. The method of fishing is also indicated in the licence. From 1985 onwards the Panchayat Board of Kruthivennu one of the rich villages in the locality started asserting its rights and it carne forward with the theory that the Interu swamp is in the limits of Kruthivennu panchayat and that it is a property which vested in the Panchayat u/ S. 85 and it started issuing leases regarding the fishing rights. Then troubles arose, litigation cropped up, criminal cases also came up. In view of these conflicting claims the present revision petitioners filed O.S. No. 47/90 and they filed I.A. No. 324/90 for grant of a temporary injunction pending decision of the suit. The petitioners are residents of Urlagonditippa. They are traditional fishermen who are doing fishing in X-1, X-2, X-3 and X-4 area which forms part of the mouth leading from the swamp to the Bay of Bengal. They were doing the fishing by erecting stakenets. Their present suit and claim is to safeguard their rights of fishing in the area, X-1, X-2, X-3 and X-4.
3. The claims of the petitioners are resisted by the respondents who claim that they are members of a Fishermen Co-operative Society and that they are having licences from the Kruthivannu Gram Panchayat. It is claimed that the Interu swamp is within the limits of Kruthivennu Gram Panchayat and that it has vested in the Gram Panchayat. They also say that the Interu swamp is correctly known as Kruthivennu swamp area and that it is a natural stream formed through which water from the Bay of Bengal flows towards north and recedes into the Bay of Bengal. They claimed that after passing of the Gram Panchayat Act the Fisheries Department has no control or right to regulate the fishing in the swamp area. They rely upon a judgment of this court in W.P. No. 3187/68 and certain proceedings of the District Collector and the Gram Panchayats Act.
4. The District Munsif Bantumilli after an elaborate consideration of the material on record came to the conclusion that the licences granted to the petitioners are valid and that they have got a prima facie case and that there is every probability of the plaintiffs succeeding in the suit as Interu swamp is not a water course and Ex.B-2 is not applicable to the facts of this case. Accordingly he granted an injunction on the ground that the balance of convenience is in favour of the petitioners.
5. In the Civil Miscellaneous Appeal the District Judge, Krishna at Machilipatnam felt that the swamp area is a natural stream and that it is one of the items which would vest in the Panchayat under the Panchayats Act. He felt that it should be first decided as to whether the swamp and the plaint schedule area come within the limits of Nidamarru Gram Panchayat limits or Kruthivennu Gram Panchayat limits and in that view of the matter without going into the various points raised in the appeal, he set aside the injunction order and remanded the matter for fresh enquiry.
6. The two crucial questions that arise consideration in this litigation are –
(1) Whether Interu swamp and the plaint schedule area the mouth of the swamp come within the definition of S.2(32) “water course” and whether it is a thing which vests in the Gram Panchayat u/S. 85?
(2) Whether the Fisheries Act of 1897 continues to be in force with regard to Interu-swamp and the plaint schedule area in spite of the passing of the Gram Panchayats Act, as far as the Interu swamp is concerned?
7. Except filing the village map of Nidamarru the village map of Kruthivennu was not filed either in the Munsif’s Court or in the appellate court. We have the Government Publication District Census hand book giving village and town Census abstract of the Krishna District. This book gives the alphabetical list of the villages and their location in the taluk maps. If we see the Bantumushi Taluk map which is at page 112 of the Book, we find that Interim swamp is backwater with a opening into the Bay of Bengal and it is located in between Kruthivennu village and Nidamarru village. Infact according to the alphabetical list of villages Interu is at serial No. 32 among the villages, Nidamarru is dt serial No. 44, among the villages and Krutti-vennu is at serial No. 33. As can be seen from the details given in the village directory Kruttivennu is much bigger village with a larger population and most of its land is available for cultivation. Kruttivennu village has a total extent of 2,214.03 hectares. Of this, only 323.75 hectares is the area not available for cultivation. Major extent of the area is under irrigated cultivation. In contrast in the village of Interu though the extent of the land is 2,356.07 hectares, only 270.73 hectares is under cultivation and 2,033.14 hectares is the are not available for cultivation. Obviously this is the swamp area. When we come to Nidamarru, we find that out of a total area of 2,611.83 hectares, the area not available for cultivation is 2,207.15 hectares. Only a small extent of 404.68 is under cultivation. These statistics in the Govt. publication prima facie show that the Interu swamp is mostly in Nidamarru village. Except taking a little guidance from this book I am not using this as evidence for considering the controversy in this revision. Because the village maps are not filed in the court the Government publication had to be taken as an aid to decide the real nature of the property and the real nature of the controversy.
8. Section 2(32) of the A.P. Gram Panchayat Act defines ‘water course’. ‘Water course’ includes any river, stream or channel, whether natural or artificial. It is significant to remember that this definition does not included back water or a swamp which has an opening to the sea. S. 85 of the Gram Panchayats Act reads as follows :
“Sec. 85. Vesting of water works in Gram Panchayats :– (1) All public water-courses, springs, reservoirs, tanks, cisterns, fountains, wells, stand-pipes and other water works (including those used by the public to such an detent 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 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-sec. (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.
(Substituted by Sec. 31 of the Andhra Pradesh Grain Panchayais (Second Amendment) Act, 1976 A.P. Act 46/76).
(3) The Govt. 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 and appertaining thereto after consulting the Gram Panchayat and giving due regard to its objections, if any.”
9. A perusal of the language of Section 85(1) clearly indicates that all public water-courses, springs, reservoirs, tanks, cisterns, fountains, wells, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use vest in the Gram Panchayat. Sub-sec. (1) of S. 85 does not speak of back waters of the sea or swamps formed by inlets of the sea into the land vesting in the Gram Panchayats. The proviso to sub-sec. (1) of S.85 excludes irrigation works from the various properties that would vest in the Gram Panchayat. Sub-sec. (2) of S. 85 gives the Gram Panchayat fishery rights in any water work vested in it under sub-sec. (1). In the present case we are concerned with a swamp and back water. It is the admitted case of both the parties that Interu swamp has a narrow mouth leading to the Bay of Bengal and the sea water comes into the swamp from the high tiled and the water recedes into the sea during low tide. It is not a water work or a water course contemplated u/S. 85(1) of the Act. In the very nature of things back water or a swamp cannot vest in the Panchayat whether it be Nidamarru panchayat or Kruttivcnnu Panchayai or for that matter Interu Panchayat. The Indian Fisheries Act of 1897 continues to be in force after the Constitution came into force. Art. 372 of the Constitution provides for continuance in force of existing laws and their adaptation. This is one such law which continued to be in force by reason of Art. 372 of the Constitution. Under 7th Schedule of the Constitution entry 57 of List No. 1 deals with fishing and fisheries beyond territorial waters, while entry 21 of List No. 2 deals with fisheries. Giving a harmonious interpretation of these two entries we have to understand that entry 21 of the 2nd list confines itself to inland water fisheries and fishing in the territorial waters while entry 57 of list No. I would extend to fisheries in the high seas and fishing beyond territorial waters.
10. A lot of emphasis has been laid in the courts below on a judgment of his Lordship O. Chinnappa Reddy, J. (as he then was) in A.P.No. 3187/68 d/-12-2-69. In this judgment his Lordship laid down the principles that with regard to certain tanks known as Raja tank, subbayya tank, Momti tank and Kukkalagunta in Biceavole village, the Fisheries Department does not have any rights of regulation or control and the power to issue licences after the advent of the Gram Panchayats Act is with the Panchayat. His Lordship pointed out that by reason of S. 85(1) and by reason of sub-sec. (2) of S. 85 these tanks have vested in the Biceavole Panchayat and the Biceavole panchayat alone has the fisheries rights in these tanks that that vested in the Panchayat. By necessary implication the Indian Fisheries Act ceases to have force with reference to these tanks. That judgment is perfectly correct and applicable to the situation that was considered by his Lordship. His Lordship was not dealing with a swamp or a back water with an opening to the sea. His Lordship was clearly dealing with the items specifically mentioned in S. 85( 1) of the Gram Panchayats Act. That judgment is not at all helpful in deciding the controversy in the present case. That has no application with regard to a swamp and back water or an inlet of the sea. Considering the language of S. 85(1) the Intern swamp and the mouth of the swamp leading to the sea cannot vest in any Panchayat. The Fisheries Department which has been exercising rights of control continues to have power to regulate the fishing in the swamp. U/ S. 6 the State Govt. is empowered to make rules for the purpose of regulating the fishing and it is entitled to take various steps. In fact in exercise of the powers u/S. 6, G.O. Ms. No. 676 d/-26-3-56 has been issued for introducing rules for licensing system in the waters of Interu swamp in Krishna District. It should be remembered that G.O.Ms. No. 674 framed rules which have a statutory basis and under the power of these rules licences were being issued from 1957 onwards to the revision petitioners, fishermen who are the natives of Urlagonditippa. The right of the Fisheries Department to control the fishing and to issue the licences is not in any way impaired by enactment of the Gram Panchayats Act. There is no implied repeal as far as this particular Interu swamp and the mouth of it to the sea is concerned.
11. The petitioners have been doing fishing operations since several years under the
licences granted by the Fisheries Department,
the balance of convenience is in their favour.
For the first time from 1985 onwards Kruthivennu panchayat made efforts to bring Interu swamp under its hegemony and started giving leases to fishermen who are the residents of
Pallipalem and who formed into a Cooperative Society with an imposing name Sri Nageswara Matsya Parisrmika Sahakara
Sangham.
12. In the orders of the court below a reference was made to the criminal cases and an earlier litigation viz., O.S. No. 465/ 85 and it should he remembered that suit was dismissed on 7-4-88. S.T.C. No. 1/87 a criminal case filed ended in acquittal and the acquittal was confirmed by the High Court. The findings in the criminal case have absolutely no application and no bearing as far as the controversy in the case is concerned. The acquittal of the respondents cannot confer on them any rights which they do not have. The statutory position has to be seen.
13. The District Judge fell into an error in coming to the conclusion that a swamp and a backwater with an opening to the sea is a natural stream or that it is a water course which would vest in the panchayat. Under a wrong impression he wanted a rehearing of the matter to decide as to in which panchayat this Interu swamp and the backwaters vest. There is no question of the Interu swamp and the backwater vesting in any panchayat as the law stand to-day.
14. In the result the civil revision petition is allowed. The order of the learned District Judge in CM.A. No. 93/90 is set aside. The order of injunction granted by the learned District Munsif is restored.
15. Considering the fact that this litigation involves the livelihood of a large number of fishermen and as there is a possibility of frequent quarrels arising, I would direct the learned District Munsif to dispose of the suit giving it top priority. He shall endeavour to decide the suit finally within four months from this day. Each party shall bear its own costs in this civil revision petition.
16. Petition allowed.