Heard Mr. P. Raja learned counsel appearing for the writ petitioner; Mr.N. Senthil Kumar, learned Additional Government Pleader appearing for respondents 1 and 2 and Mr.K.R. Ramesh Kumar learned counsel appearing for the 4th respondent.
2. The order under challenge in this writ petition is passed by the 2nd respondent in its proceedings in Letter No: Ko6/AE/PWD/Gingee/2010 dated 30.01.2010 seeking to quash the same and to forbear the respondents 2 and 3 from interfering with the rights of the petitioner Panchayat to exercise their rights of fishery over the Big Tank in Mazhavanthangal Village, Gingee Taluk, Villupuram District.
3. According to the petitioner she is the President of the Mazhavanthangal Village Panchayat and there is a tank called Big Tank situated in that village within the territorial limits of Mazhavanthangal Village Panchayat, hereinafter referred to as the Panchayat, constituted under the provisions of the Tamil Nadu Panchayats Act No: 21 of 1994, hereinafter referred to as the Act. There is a dispute relating to the right to lease out the fishery from the said tank and the petitioner claims that so far the petitioner Panchayat alone is exercising such a right and all the revenues from the grant of such right by way of public auction is credited to its revenue which is the main source of revenue to the Panchayat.
4. It is the case of the petitioner that they derive this right under Section 133 of the Act which has been transferred to the petitioner Panchayat and only on account of the same, the petitioner Panchayat had been conducting auction for grant of rights of fishing in terms of the specific rules framed by the Government called The Tamil Nadu Panchayats (Lease and Licensing of Fishery Rights in Water Sources Vested ad Regulated by Village Panchayts and Panchayat Union Councils) Rules, 1999, hereinafter referred to as the Rules, which Rules provide for the various functions of the Panchayat under the said Act and are applicable to those water sources enclosed as Appendix I which provides that
(i) Irrigation sources which are entrusted to Panchayat Union Council under Section 133 (1) of the Tamil Nadu Panchayats Act, 1994 and maintained by them and non-provincialised water sources of the Public Works Department and maintained by them.
(ii) Irrigation sources which are entrusted to Panchayat Union Council under Section 133 (1) of the Tamil Nadu Panchayats Act, 1994 but maintained by village panchayats.
(iii) All public water sources vested with village panchayats.
In the above circumstances, the petitioner Panchayat published an auction notice under the said Rules to bring the Fishery Rights and the auction was fixed on 13.11.2009 but the Block Development Officer of the Panchayat Union requested the petitioner by their letter dated 12.11.2009 to postpone the auction on the objections taken by the third respondent, but as could be gathered from the letter dated 01.12.2009 addressed to the District Collector by the Block Development Officer the rights were already exercised by the third respondent by bringing it for an auction on 16.11.2009 for a sum of Rs. 1,58,000/-. The third respondent has no power whatsoever under the said Irrigation System Act to bring in auction the right of fishery and as such any such auction even if conducted cannot be a legal one and also equally it will not be binding upon the petitioner Panchayat.
5. On the other hand, the petitioner Panchayat by their notice dated 27.01.2010 proposed to conduct an open auction under the said Rules for the grant of fishery right and at that stage, the second respondent has threatened the petitioner by saying that no one has got any right to conduct any auction over the fishery and the right is only retained by the Public Works Department, hereinafter referred to as P.W.D., and if the petitioner proceeds to conduct an auction without the permission of the P.W.D. or if any other activities are taken criminal proceedings would be initiated against them through police. The said order dated 30.01.2010 made by the second respondent herein is totally illegal, without any power or jurisdiction and contrary to the provisions of the Act and the Rules and also against the Tamil Nadu Farmers Management of Irrigation Systems Act, 2001 and, therefore, petitioner prays for quashing of the said order.
6. The first respondent, Secretary to Government, P.W.D. (Irrigation), has filed a counter stating that the petitioner has questioned the order of the second respondent dated 30.01.2010 and for a consequential direction to forbear the respondents 2 and 3 from interfering with the rights of the petitioner Panchayat to exercise the rights of fishery over the Big tank and to stay the operation of the proceedings. It is also stated that this Court was pleased to direct the first respondent to file an appropriate affidavit clarifying the position with regard to questions raised by the counsel of the parties that the irrigation tank in question is above 107 acres and whether the power of maintenance is vested with the Panchayat or the P.W.D. as it has also not been revealed by the concerned authority who has sworn the affidavit and filed counter affidavit. It is the stand of the first respondent in the counter that the said tank belongs to P.W.D. and it is under the control and maintenance of the 2nd respondent from time immemorial. The petitioner Panchayat is not exercising fishery right and no revenue out of it is credited to the petitioner Panchayat hitherto. Further as per the provisions of paragraph 384 of the Tamil Nadu P.W.D. Code, all Minor Irrigation Tanks, irrigating less than 40 hectares which is equivalent to 99 acres excepting those which do not form part of a river irrigation system and those which are for special reasons kept under the control of the P.W.D. and all Minor Irrigation Tanks not forming part of a chain of tanks shall rest with the Panchayat Union concerned. It is also submitted that as per the provisions contained in paragraph 254 of the Tamil Nadu Public Works Account Code while dealing with the Revenue Receipts in Chapter IX, it has been stated that P.W.D. is responsible for the realisation of the revenue from miscellaneous properties such as the sale of the rights to enjoy the usufructs of trees, grass and fisheries, etc. The above provision remains in force as of now without any change in the Tamil Nadu P.W.D. Code and Tamil Nadu Public Works Account Code.
7. Further, in the counter of the first respondent it is stated that the Mazhavanthangal Big Tank in Mazhavanthangal Village of Ginjee Taluk has an ayacut of 43.15 hectares which is equivalent to 107.012 acres and hence, the above tank is indisputably under the control and maintenance of the P.W.D.. Even the tank memoir indicates that the Big Tank is maintained by the P.W.D.. Inasmuch as the above tank is owned by the P.W.D., the Government of Tamil Nadu had approved a massive project for the acceleration, restoration and deepening programme of traditional tanks all over the State covering an ayacut of 34197.07 hectares which is equivalent to 82,066 acres at an estimated costs of Rs.6,250/- lakhs under Part II Scheme for the year 2005-2006. The Mazhavanthangal Big Tank is one of the 30 tanks in which the above scheme was implemented in Villupuram District and the tank was desilted to store water to the full capacity, bund was strengthened to effect full supply from the streams and other works as per the programme at a cost of Rs.10 lakhs. All these factors would go to prove that the local Panchayat has no locus standi to do anything in the above tank including auctioning the fishery rights. The said tank feeds the irrigation needs of its own ayacut of 107 acres and according to G.O.Ms. No: 843, P.W.D. dated 31.03.1986, the P.W.D. is alone vested with powers to have control as well as maintenance inclusive of fishery right. The right over the said tank has not been transferred to the petitioner panchayat under Section 133 (1) of the Act. Inasmuch as the tank is under the control of the P.W.D., the right of exercising fishery vests with the P.W.D. alone and the petitioner Panchayat is not competent to exercise the right of fishing and as such the averments of the petitioner are not correct.
8. Section 133 (1) of the Act only stipulates inter-alia that the Government may transfer to any village 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 it. Sub Section 3 of Section 133 of the Tamil Nadu Panchayats Act, 1994 also provides that where the maintenance of any irrigation work is transferred under this Section, the fishery rights of the Government in such work shall be transferred to and be vested in the village 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. Therefore, the reliance placed on the section by the petitioner claiming control and maintenance at any point of time before and as of now has no force. The big tank continues to be under the control and maintenance of P.W.D. and any activity concerned with the tank including sale of fishery rights continues to be held by them. So long as the tank continues to be under the control and maintenance of the P.W.D., the petitioner Panchayat is barred by law to trespass into the tank under the pretext of auctioning the fishery rights suo-motu without any orders of the State of Tamil Nadu. The petitioner ought to have usurped the powers on her own volition and whims and fancies to notify the auction by misconception as if the tank has been under the control of the Village Panchayat and exceeded its powers and held the auction of the fishery right suo-motu and the auction thus held by the petitioner is patently illegal. The petitioner panchayat has auctioned the fishery right on 09.04.2010 for Rs.1,94,000/- to one S.Annamalai, s/o.Subburayan of Mazhavanthangal Village trespassing upon the property of P.W.D. and that the auction held by the petitioner Panchayat is liable to be canceled.
9. The first respondent has also stated that the second respondent being the authority of the P.W.D. and having right of fishery on that analogy would alone has authority to auction the fishery rights and thereupon only the second respondent asked the petitioner Panchayat not to exercise the right of fishery and for exceeding the power and jurisdiction by trespassing upon the property of the 2nd respondent, the Panchayat President is liable to be proceeded with as per law. As regards the extent of the powers conferred upon the Water Users Association which has been formed in terms of the Tamil Nadu Farmer's Management of Irrigation Systems Act, 2000, hereinafter referred to as the Irrigation System Act, such as the power of utilization of water and the maintenance of the irrigation system of the tank, the Act did not confer any right either to the 3rd respondent or to the Panchayat to exercise fishery right. Therefore, the auction conducted by the third respondent and the sale proceeds of Rs.1,58,000/- realized on 16.11.2009 and remitted to the account of the Farmers Association in the Management of the Water Sources, Mazhavanthangal Village is also illegal and the said amount if liable to be refunded to the Lessee of the Fishery right by canceling the auction held on 16.11.2009 by the 3rd respondent.
10. Inspite of pointing out the irregularity in conducting the auction in the tank maintained by the P.W.D., the petitioner Panchayat was very adamant and auctioned the fishery right as if it has got power to that effect and the petitioner Panchayat has not only violated the rules and the Government Orders but also trespassed into the limits of the tanks maintained by P.W.D. While lakh of rupees were spent to maintain the tank by the respondent authorities so that viable irrigation is carried out by storing the water collected in the tank in monsoonal rains. The second respondent has not permitted the third respondent to auction the fishery right as contended by the petitioner. The 3rd respondent himself on his own accord and at his personal risk exercised the fishery right as in the case of the auction conducted by the petitioner panchayat. The lessee of the 3rd respondent has not exercised the auction of fishery till now, though the auction amount was realised from him. Such rights if any auctioned by the third respondent herein would not bind the rights of the respondent authorities and the third respondent runs the risk of auctioning the fishery rights without any orders from any of the respondent authorities and the third respondent runs the risk of auctioning the fishery rights without any orders from any of the respondent authorities. It may not be out of place to mention that the Assistant Director (Panchayats) Villupuram District on behalf of the Collector, Villupuram District, had clarified to the Executive Engineer, Pennaiyaru Vadinila Kottam, Villupuram, in his Memo Na.Ka. No: A-7/24/67/2009 dated 06.03.2010 that the auctioning the fishery rights in the tanks under the control of P.W.D. Will have to be done only by P.W.D. In response to clarification sought for in letter No: 157/M/Ko/205/2010JDO-1 dated 01.03.2010. Inspite of specific clarification issued by the Collector and on which the second respondent asked the petitioner not to exercise the fishery right, the petitioner Panchayat had taken the law into her own hands by auctioning the fishery rights in the tank which created law and order problem and the Tahsildar, Gingee, conducted Peace Committee and resolutions to that effect were passed. Significantly the petitioner panchayat did not attend the Peace Committee which would further evidence to her autocratic and irresponsible attitude in disobeying the rules and orders, though the petitioner is the head of the Village Panchayat who has the onus to maintain peace and harmony amongst the villagers.
11. It is the specific stand of the Principal Secretary to Government, Public Works Department, Government of Tamil Nadu, that establishing the rules and orders in force with regard to the auctioning of fishery rights in so far as the source is under the control of the Public Works Department, the Collector of Villupuram District and Inspector of Panchayats had specifically clarified that the right of fishery in the Mazhavanthangal Big Tank has to be exercised only by the 2nd respondent making it clear that the petitioner Panchayat had no right to exercise the right of fishery over the above said big-tank in Mazhavanthangal Village by assuming powers under Sections 133 (1) and 133 (3) of the Act and these Sections deal with only about the maintenance of the tank system, if any, transferred to the control of the Village Panchayat or Panchayat Union Council and on transfer of such tank to the Panchayat or the Panchayat Union, the fishery right also deemed to have been transferred to the Panchayat. But the tank in question continues to be maintained by the Public Works Department only as the fishery rights have to be exercised by the P.W.D. in terms of paragraph 254 of Tamil Nadu Public Works Department Code and with reference to G.O. (Ms.) No: 843, Public Works Department dated 31.03.1986.
12. According to the first respondent, this Court while disposing of a writ petition in W.P. No: 29944 of 2008, 5568 and 15727 of 2009 on 09.06.2010 has relied on the judgment in W.P.No.18432 of 2006 in the case of The President rep.by P.Maheswari, Illupilli Panchayat, Tiruchengode Taluk, Namakkal District -vs- The District Collector, Namakkal District and others, wherein in a similar situation, this Court has held as follows:
"8. The petitioner seeks this relief relying on Rule 2 of the Rules read with Appendix I and according to the petitioner, as per the said rule, the fishing right or irrigation sources which are entrusted to the Panchayat Union Council under Section 133(1) of the Tamil Nadu Panchayats Act, 1994 and maintained by them and non-provincialised water sources of the Public Works Department and maintained by them can be enjoyed by the village panchayat. Now, as far as the case in hand is concerned, the Eri in question is Illupilli Eri and no order has been produced transferring the said Eri under Section 133(1) of the Tamil Nadu Panchayats Act, 1994, to the petitioner panchayat. On the other hand, as per the Descriptive Memoirs of Irrigation Works, the said tank is with the Public Works Department. Further, it is the specific case of the respondent Public Works Department that the said tank is maintained by them and the income from the said tank is utilised for the maintenance of the said tank. Apart from this, it is not the case of the petitioner also that till the previous years, the fishery right of the said tank was exercised only by the petitioner Panchayat. As referred to above, the petitioner claims this relief on the ground that it is a non-provincialised water source of the Public Works Department. If this is the ground on which the petitioner seeks the relief, the burden lies on the petitioner to prove that it is a non-provincialised water source. But, no document has been brought to the notice of this Court to the effect that the tank in question is a non-provincialised water source of the Public Works Department and as referred to above, even no order has been brought to the notice of this Court by which the said tank has been entrusted to the said Panchayat. That apart, it is not even the case of the petitioner also that till the last year, the said right was exercised by the petitioner panchayat. Consequently, it can safely be presumed that the leasing out of the fishing right of the said tank is exercised only by the Public Works Department. Though the Tamil Nadu Panchayats Act has come into force in 1994, for the past 14 years, since the tank belongs to the Public Works Department and as per the Rules, the said right has been exercised by the Public Works Department. That apart, as per the Government Order, preference should be given only to the Co-operative Societies whose members are fishermen or Harijans and it is not disputed that the members of the fourth respondent come within this identification. Consequently, I am of the opinion that the petitioner has not made out a case to interfere with the order dated 09.07.2008 passed by the second respondent herein. Hence, the writ petition stands dismissed. No costs. Consequently, connected M.Ps.are closed".
Therefore, in so far as the irrigation tanks are under the control and maintenance of P.W.D., the authorities of P.W.D. alone can auction the fishery rights and none of the sections of the Tamil Nadu Panchayat Act, 1994, would entitle the auctioning of the fishery right in the water bodies belonging to the P.W.D. which has been reinforced by the orders dated 09.06.2010 in W.P. Nos: 29944 of 2008, 5568 and 15727 of 2009 and, therefore, they prayed for dismissal of the writ petition.
13. The successful bidder in the auction conducted by the third respondent was impleaded as party respondent and he has filed a counter and stated that the President of the Mazhavanthangal Water Users Association has issued notice on 12.11.2009 for the Public Auction to be held on 16.11.2009 for the auction of fisheries right in respect of the Big Tank situated at Mazhavanthangal Village within the territorial limits of Mazhavanthangal Village Panchayat Union. There was a "Tom Tom" notice in respect of the auction sale on 16.11.2009. Pursuant to the said TomTom Notice, he deposited a sum of Rs.5,000/- to participate in the Public auction and bade for Rs.1,58,000/- (Rupees one lakh and fifty eight thousand only) which was the highest bid and he was declared as the successful bidder for Fisheries right in respect of Big Tank within the territorial limits of Mazhavanthangal Panchayat Union. Pursuant to the payment of the entire bid amount, the 3rd respondent had granted permission to enjoy the fisheries right upon 09.07.2010. Thereafter, a sum of Rs. 1,70,000/- (Rupees one lakh and seventy thousand only) was invested by him for fish cultivation in the tank and he had been regularly investing towards the feeding of fishes and other maintenance. It is also stated that the right of fishery and auction will arise on the part of the Mazhavanthangal Village Panchayat only when the said tank is transferred or vests with it under the provisions of Section 133 (1) of the Act. The subject tank is not entrusted either to Village Panchayat or to Gingee Panchayat Union Council for maintenance under the provisions of the Act and the tank will not have an automatic vesting with the Mazhavanthangal Village Panchayat as contended by the petitioner. Therefore, the lease of fisheries right is only by way of public auction and he has been declared as a successful bidder entitled to have the benefit and prayed for dismissal of the writ petition.
14. The first and foremost contention of the learned counsel for the petitioner is that since 1988 the petitioner Panchayat has been conducting auction in respect of fisheries right in the Mazhavanthangal Village Panchayat Big Tank and, therefore, that traditional rights cannot be deprived of and this power has been vested with the Panchayat in view of Section 133 (1) of the Act.
15. On the other hand, the learned Additional Government Pleader would contend that as far as the Provision of the Act is concerned unless it is transferred to Panchayat by a specific order of Government or by the competent authority, the Panchayat has no right whatsoever to exercise any power or jurisdiction to go for public auction on the fishing activities including the fishery right. The respondent, by misconstruing the entire provisions of the Act had trespassed into the tank and even though there was a clarificatory order from the District Collector, the Panchayat President has exercised her power and jurisdiction to go for public auction without any power of authority. He has also pointed out that as regards the area or the limit for exercising the control by the concerned Panchayat, even under the provisions of the Act or under the Government Orders, if the total extent of the irrigation channel exceeds 100 acres, the power / right shall be vested with the P.W.D. alone and with the Village Panchayat.
16. Learned counsel for the 4th respondent submits that the third respondent association is an association formed in the interests of the Water Users and therefore, they have a right to go in for a public auction and as per the procedure he has participated in the tender and he was the successful bidder and hence, he cannot be deprived of the benefit as he is entitled to continue with the fishing right as per the auction held on 16.11.2009.
17. Though the third respondent has been served with a notice and its name is printed in the cause list, it is not represented by any counsel.
18. I have heard the learned counsel for the parties and perused the material documents and analyzed the provisions of law including the clarificatory decision given by the competent authority. An overall perusal of the facts would reveal that the petitioner is the President of the Village Panchayat and she fixed the public auction to bring the fishery rights of the Mazhavanthangal Big Tank on 13.11.2009 in accordance with the provisions of Section 133 (1) of the Tamil Nadu Panchayats Act, 1994 and the Rules made thereunder. But, the Block Development Officer of the Panchayat Union, by his letter dated 12.11.2009, requested the Panchayat President to postpone the auction on the objection taken by the 3rd respondent.
19. It is claimed by the petitioner that from the letter dated 01.12.2009 addressed to the District Collector by the Block Development Officer the rights were already exercised by the 3rd respondent association by bringing it for auction on 16.11.2009 for a sum of Rs.1,58,000/-. However, the petitioner proceeded with another auction notice dated 27.01.2010 and the 2nd respondent, by an order dated 30.01.2010 informed the petitioner that the power of public auction in respect of the fishery right is retained only by the Public Works Department and if the petitioner proceeds to conduct the auction without the permission of the Public Works Department, they will be constrained to proceed against the petitioner in an appropriate criminal proceedings. This order has been challenged by the petitioner in this writ petition .
20. Section 133 (1) of the Act provides that subject to such conditions and control as may be prescribed, the Government may transfer to any Village Panchayat or to any Panchayat Union Council the protection and maintenance of ay irrigation work, the management of turns of irrigation, or the regulation of distribution of water from any irrigation work to the fields depending on it. Sub Section 3 of Section 133 provides that where the maintenance of irrigation work is transferred under this Section, the fishery rights of the Government in such work shall be transferred to and be vested in the village 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.
21. This Court, after hearing the learned counsel for the parties, directed the Secretary to Government, Public Works Department (Irrigation), Fort. St. George, Chennai-600 009, to file an appropriate affidavit clarifying the position with regard to the question raised by the counsel for the parties that the irrigation tank in question is above 107 acres and whether the power of maintenance would vest with the Panchayat or with the Public Works Department as it is also not revealed by the concerned authority as to who has sworn the affidavit and filed a counter. Taking into account the averments made in the counter of the 2nd respondent that the Big Tank which is situated in the Mazhavanthangal Village has not been entrusted to the Panchayat as its irrigation covers more than 100 acres and upto total acres of 107. The conditions laid down in the Public Works Department Code and the existing Government Orders restrain not to transfer the Big Tank to Village Panchayat or Panchayat Union Council when the total extent of irrigation exceeds 100 acres. The right of fishery and auction will not arise on the part of the Mazhavanthangal Village Panchayat or Panchayat Union Council when the total extent of irrigation exceeds 100 acres. The right of fishery and auction will arise on the part of the Mazhavanthangal Village Panchayat only when this Tank is transferred or vested with it under the provisions of Section 133 (1) of the Panchayat Act, 1994. This tank is a provincialised water source of the Public Works Department and is being maintained by it and the said tank is not entrusted to Village Panchayat or to Gingee Panchayat Union Council for maintenance.
22. From the counter affidavit filed by the Principal Secretary to the Government, Public Works Department, Secretariat, Chennai - 600 009, it is clear that the said tank namely Mazhavanthangal Big Tank belongs to Public Works Department and it is under the control and maintenance of the 2nd respondent from time immemorial. The petitioner Panchayat is not exercising fishery right and no revenue out of it is credited to the petitioner Panchayat hitherto. Further as per the provisions of paragraph 384 of the Tamil Nadu P.W.D. Code, all Minor Irrigation Tanks, irrigating less than 40 hectares which is equivalent to 99 acres excepting those which do not form part of a river irrigation system and those which are for special reasons kept under the control of the P.W.D. and all Minor Irrigation Tanks not forming part of a chain of tanks shall rest with the Panchayat Union concerned. As per the provisions contained in paragraph 254 of the Tamil Nadu Public Works Account Code while dealing with the Revenue Receipts in Chapter IX, it has been stated that P.W.D. is responsible for the realisation of the revenue from miscellaneous properties such as the sale of the rights to enjoy the usufructs of trees, grass and fisheries, etc. The above provision remains in force as of now without any change in the Tamil Nadu P.W.D. Code and Tamil Nadu Public Works Account Code. It is further seen that the tank in question has an ayacut of 43.15 hectares which is equivalent to 107.012 acres and hence, the above tank is indisputably under the control and maintenance of P.W.D.. The tank memoir indicates that the Big Tank is maintained by the P.W.D. and is owned by it and hence, the Government of Tamil Nadu had approved a massive project for the acceleration, restoration and deepening programme of traditional tanks all over the State covering an ayacut of 34197.07 hectares which is equivalent to 82,066 acres at an estimated cost of Rs.6,250/- lakhs under Part II Scheme for the year 2005-2006. The said tank is one of the 30 tanks in which the above scheme was implemented in Villupuram District; the tank was desilted to store water to the full capacity and the bund was strengthened to effect full supply from the streams and other works as per the programme at a cost of Rs.10 lakhs. All these factors would go to prove that the local Panchayat has no locus standi to do anything in the above tank including auctioning the fishery rights.
23. It is not materially proved by the petitioner that either under Section 133 (1) or under Section 133 (3) of the Act, the Big Tank in Gingee Taluk at Mazhavanthangal Village has been transferred to the control and maintenance of Mazhavanthangal Village Panchayat at any point of time before and as of now. The tank continues to be under the control and maintenance of Public Works Department. The only claim made by the petitioner is that they had the benefit of conducting a public auction since 1988. It is only pleaded in the affidavit that the petitioner had been conducting the public auction in respect of the fishing rights of the subject tank from 1988. But no document in writing has been produced before this Court to support their claim that it is only the petitioner who has been conducting the public auction from the year 1988 onwards. In the absence of any material documents produced before this Court, the claim of the petitioner that they had the benefit of conducting public auction for some years cannot be taken as a statement of fact as it must be proved by proper material documents. In respect of the petitioner's claim whether any transfer of right has been made with regard to the control and maintenance of the tank, as stated by them under Section 133 (1) or 133(3) of the Act, a clear analysis has been made by this Court into the material pleadings as well as the clarificatory statement made by the 1st respondent herein, who is the competent authority having overall control of the entire State, and it is crystal clear that the control of the said tank in question vests with the 2nd respondent namely the Public Works Department and not with the Petitioner Panchayat. Therefore, the power of exercising such a control by the petitioner is uncalled for and even if it is exercised by the petitioner in the years passed by, it does not enure any right and the petitioner had acted on its own volition. Therefore, the claim of the petitioner for a fisheries right and for conducting a public auction cannot be held as correct so long as such right is not vested with the petitioner Panchayat as the control and maintenance of the subject tank has not been transferred to the petitioner Panchayat by the Government. Therefore, petitioner's action in conducting a public auction cannot be justified in any manner in the absence of any right accorded to them. Similarly, as regards the activities of the 3rd respondent in respect of claim that it has got the right to conduct a public auction for the fishing rights in the said tank, again, no provision of law is produced to show that the 3rd respondent has got any right. In other words, no particular provision of law or any Government Orders which entitles the 3rd respondent to conduct a public auction is produced before this Court. Therefore, the public auction conducted by the 3rd respondent on 16.11.2009 is found to be contrary to the established principles of law and is without any manner of right. It is stated that the successful bidder namely the 4th respondent had already invested money and has also paid the entire bid amount. The only course open to the 3rd respondent is to return the entire amount invested by the 4th respondent immediately since the auction conducted by the 3rd respondent is clearly an illegal act. The 4th respondent is at liberty to claim the amount invested by him by taking his own course.
24. In the light of the above discussion, noticing the provisions of law and taking into account the various Government Orders including the clarificatory statements made on behalf of the Government and also the view taken by this Court in the earlier writ petitions, the petitioner Panchayat has no manner of right whatsoever over the Big Tank in question. Therefore, the impugned proceedings of the 2nd respondent dated 30.01.2010 are perfectly valid. Accordingly, the writ petition fails and is dismissed. Consequently, the connected miscellaneous petitions are closed. There shall be no orders as to the costs.