THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI SECOND APPEAL No.1083 of 2006 JUDGMENT:
The unsuccessful plaintiffs in OS.No.181 of 1995 preferred this second appeal assailing the decree and judgment dated 08.08.2006 of the learned VI Additional District Judge, (Judge, Fast Track Court) Narsapur made in A.S.No.15 of 2002 whereby the learned Judge while rendering a common judgment in As.Nos.15 of 2002 and AS.No.1 of 2004 had allowed the said first appeal in A.S.No.15 of 2002 and had set aside the decree and judgment dated 31.12.2001 of the learned Principal Junior Civil Judge, Narsapur made in O.S.No.181 of 1995 filed for declaration of plaintiffs’ title to catch fish in Kondalamma Temple Valakattu on the left side of the river near Kondalamma temple and in Navarasapuram Valakattu on the right side of the river and for grant of a consequential perpetual injunction restraining the defendants and their men, from ever raising any new valakattu in between the Navarasapuram Valakattu and Kondalamma temple valakattu in Vasista river or from in any way interfering the right of plaintiffs to catch fish by stake nets at Kondalamma temple valakattu and Navarasapuram valakattu and for grant of a mandatory injunction against the defendants directing them to remove the newly raised valakattu in Vasista river in between the two valakattus of the plaintiffs.
2. At the time of admission of the second appeal, this Court had taken note of the following substantial questions of law mentioned in ground No.2(a) & (b) of the memorandum of grounds of appeal.
“Whether the appellate Court is justified in ignoring the commissioners report on a fact finding that the disputed ‘Y’ marked valakattu in existence, can be reversed without assessing any contra evidence and if so, the judgment basing on surmises is sustainable in law?
Whether the lower appellate Court can ignore a fact based on evidence that ‘Y’ marked valakattu since erected subsequent to the suit can be considered without the defence being assertive of right not proved and if so the judgment of the appellate Court is sustainable in law?”
(reproduced verbatim)
3. I have heard the submissions of the learned senior counsel for both the sides. I have perused the material record.
4. Though the facts appear to be complex, the issues involved in the lis and the substantial questions to be determined can be disposed of by making a brief reference to the facts and material evidence.
4. (a) The plaintiffs’ case, in brief, is as follows: “The plaintiffs in the suit are a group of fishermen and their principal means of livelihood is catching fish. The plaintiffs are having two valakattus in Vasista river namely Navarasapuram valakattu and Kondalamma temple valakattu. According to the plaintiffs, their valakattus/stake nets at the said two places are in existence since the time of their ancestors and that the plaintiffs are enjoying the said two valakattus by exercising rights to sell or lease or mortgage the kanas in the valakattus and in the manner they liked. While so, the defendants 1 to 4 had approached the plaintiffs and asked them to give some kanas in their valakattus i.e., Navarasapuram valakattu and Kondalamma temple valakattu, but the plaintiffs did not agree for the same. The defendants 1 to 4 bore grudge against the plaintiffs and had declared that they would raise a new valakattu in between the two valakattus of the plaintiffs i.e., at the Madhavayapalem ferry point. If the defendants raise a valakattu in between the two valakattus of the plaintiffs i.e., at Madhavayapalem ferry point the plaintiffs do not get any fish at their established valakattus. In fact the distance between Navarasapuram valakattu and Kondalamma temple valakattu is about two miles. No person has got a right to raise any valakattu in between the two valakattus of the plaintiffs. There are certain customary rules among the fishermen communities. The rights in the kanas in the valakattus owned by the members of the valakattus are heritable. The defendants have no right in any kanas of the plaintiffs’ valakattus viz., Navarasapuram valakattu and Kondalamma temple valakattu. The defendants had openly proclaimed that they would raise a new valakattu at a distance of 100 yards i.e., at Madhavayapalem ferry point. Therefore, the plaintiffs filed the suit for declaration and injunction. The defendants had raised a valakattu as proclaimed by them at Madhavayapalem ferry point and, therefore, the plaintiffs had got amended the plant for grant of a mandatory injunction also directing the defendants to remove the newly raised valakattu at Madhavayapalem ferry point.”
4. (b) The defence in the written statement and additional written statement of the defendants, in brief, is this: - “The material allegations in the plaint are false. The suit is not maintainable. The defendants belong to Agnikula Kshatriya community and depend upon fishing for their livelihood. The defendants have an absolute right to fish exclusively in their zone. As per the customs, the fishermen of Navarasapuram valakattu have one row of poles for 30 stake nets called pootus across the river near 72/8 kilometre stone. The defendants and some other fishermen of their village have exclusive right of fishing in the entire zone of the river all along their village. Likewise plaintiffs and other fishermen of Ponnapalli village have their pootu across the river near the spot at about 150 meters to the North of Kondalamma temple. They have their exclusive right of fishing in the entire zone of the river all along their hamlet commencing from the border between Navarasapuram and Narsapur upto the spot near Sri Kondalamma temple. Beyond that limit, the zone of Peechupalem fishermen commences. The respective pootus of the both the plaintiffs and the defendants are continuing on their respective places since times immemorial. Taking advantage of their numerical strength, the plaintiffs with their henchmen tried on 07.01.1987 to newly plant a row of poles for stake nets at a distance of 200 meters from the existing pootu of the defendants by encroaching into the zone of the defendants. The matter was reported to the caste elders of the plaintiffs. As no fruitful result had come out, the defendants had submitted a petition to the Sub-Collector on 13.01.1987. On 19.01.1987 at 07:00 A.M., the defendants had noticed that the plaintiffs and their men were planting new row of poles and therefore objected to their action. The 1st plaintiff and others used foul language. While so, the plaintiffs and their men had completed highhandedly the planting of seven stake nets at the above said place opposite to kilometre stone 73/0. When the defendants are contemplating to file a suit, to forestall the suit of the defendants, the plaintiffs had filed their suit. The defendants raised a new valakattu in between Kondalamma temple valakattu and Navarasapuram valakattu towards North of Madhavayapalem ferry point is not correct. The defendants have no right to raise a new valakattu or catch fish with stake nets and that the defendants had violated the customary rights of fishermen is not true and correct. Kondalamma temple valakattu and Navarasapuram valakattu exclusively belong to the plaintiffs is not correct. The allegation that the defendants have no right to raise any valakattu within a distance of two miles from the valakattus of the plaintiffs is not true and correct. Hence, the suit may be dismissed.”
4. (c) At the time of trial, PWs.1 to 9 and DWs.1 to 5 were examined and exhibits A1 to A12 and C1 to C5 were marked. No documents were exhibited on the side of the defendants. As already noted, on merits, the trial Court had decreed the suit of the plaintiffs as prayed for and had directed that the valakattu of the defendants near Madhavayapalem ferry point shall be removed within two months from the date of the judgment. However, the first appeal was allowed and the suit of the plaintiffs was dismissed by reversing the judgment of the trial Court. Therefore, the plaintiffs are before this Court.
5. Be it noted that the defendants herein and their group of fishermen had filed a separate suit in OS 41 of 1997 against Boddu Narayana and others for a declaration that the defendants herein are the absolute owners of their Valakattu at Madhavayapalem ferry point and that the defendants in the said suit OS 41 of 1997 have no right to erect a valakattu within a distance of 150 meters from the Madhavayapalem ferry point valakattu and for removal of the said valakattu. That suit was decreed in favour of the plaintiffs therein i.e., defendants/respondents herein and the first appeal preferred by the defendants in that suit i.e., Boddu Narayan and others was also dismissed.
The second appeal in SA 1075 of 2006 is also coming along with this second appeal. Thus the respondents herein had succeeded in both the suits.
6. In view of the narrow compass of the issues involved in the substantial questions of law, what is to be first noted is that the trial Court and the Court of first appeal had recorded a concurrent finding that the valakattu of the defendants at Madhavayapalem ferry point was not in existence since a long time or for over a statutory period and that the said valakattu of the defendants at Madhavayapalem ferry point is new valakattu. Now that the defendants’ new valakattu, which is in between the two valakattus of the plaintiffs, is not in existence since a long time and that it is held to be a newly installed valakattu, what is to be examined is - whether the plaintiffs are entitled to a declaration in regard to their two valakattus and for a mandatory injunction for removal of the valakattu of the defendants. The main contention of the plaintiffs is that if the newly erected valakattu of the defendants is allowed to be continued in between the two valakattus of the plaintiffs, they will not be in a position to catch any fish because the said valakattu of the defendants is within a short distance from the valakattus of the plaintiffs in the Vasista river. Therefore, the crux of the matter is as to whether the plaintiffs can prevent the defendants from raising a valakattu in between their two valakattus and whether or not the defendants’ valakattu is within a prohibited distance from the two valakattus of the plaintiffs’ viz., Navarasapuram valakattu and Kondalamma temple valakattu as contended by the plaintiffs. Let it be re- stated for clarity that the valakattu of the defendants at Madhavayapalem is in between the two valakattus of the plaintiffs in Vasista Godavari. The burden is on the plaintiffs to prove their case to succeed in the suit where declaration was sought in respect of their two valakattus and a mandatory injunction was sought for removal of the valakattu of the defendants. It is admitted before this Court that any fishermen or a group of fishermen having a valakattu have to necessarily obtain licenses and permissions from the authorities concerned as per the provisions of the Indian Fisheries Act, the rules and regulations, the Government memos and the Government orders which govern, regulate and control the activities of fishing. The plaintiffs and defendants are obtaining licenses or permissions from the Government for their respective valakattus from time to time is not in dispute. Though the plaintiffs had pleaded that as per the custom prevailing in the fishermen community the distance between two valakattus should be two miles, there is no adequate evidence on record to prove such custom. Moreover, the distance to be maintained between two valakattus is being regulated by the Government Orders from time to time is not in dispute. In this regard, it is necessary to refer to G.O.Ms.No.50 dated 08.01.1963 of Agricultural Department of Government of A.P. Under this GO, it is stated that no person shall erect a valakattu (row of stake nets for fixing fishing nets) within a distance of less than one mile from any one of the existing Pootus above or below the store. Therefore, the distance to be maintained between two valakattus as prescribed in the earliest GO is one mile. Subsequently, GO.Ms.No.5 dated 17.01.2002 was issued amending the earlier GO of the year 1963 and by the said GO, the distance of ‘one mile’ is reduced to 1 K.M (one Kilo Meter). Therefore, if we go by the distance prescribed in the Government Orders, the distance between two valakattus shall be not less than 1 K.M. The 1st GO prescribed one mile was issued in the year 1963. Whereas the 2nd GO reducing the distance from 1 mile to 1 K.M was issued in the year 2002 i.e., during the pendency of the litigation between the parties. In the first place it was urged by the learned senior counsel for the appellants that the first GO does not cover the subject matter as there is no mention of the Vasista River in the schedule of the said GO. It was further urged that even assuming that the first GO applied; the second GO which was issued during the pendency of the lis has no retrospective effect and is inapplicable. The learned senior counsel for the respondents had urged that the GOs are applicable to the subject River and that the later GO is also applicable as the licences and permissions for fishing are granted or renewed periodically keeping in view the current orders, regulations and Rules in force at the time of granting or renewing of licences or permissions for fishing. He further urged that there is evidence to show that the said GOs are applicable to the case on hand and had further submitted that subsequent legal position is to be taken note of as per the settled principles of law.
s. (b) The valakattu of the defendants which is in between the two valakattus of the plaintiffs is admittedly at a distance of more than 1 K.M from either of the two valakattus of the plaintiffs. So if the distance prescribed in the amended GO.Ms.No.5 is to be taken into consideration and is to be applied, then it follows that the valakattu of the defendants is not within a prohibited distance from either of the two valakattus of the plaintiffs. But if the GO.Ms.No.5 which was issued during the pendency of the lis is not to be taken into consideration and the distance is to be reckoned as one mile, the valakattu of the defendants comes within a prohibited distance of one mile.
5. (c) Firstly, it is contended that the two GOs have no application to Vasista river and that the GOs are only applicable to Kolleru lake and Upputeru leading to Bay of Bengal situate in revenue taluks of Bhimavaram and Eluru of West Godavari District and Kaikaluru of Krishna District. Coming to the GO.Ms.No.50, the same was issued in the year 1963 exercising the powers conferred under Section 6 of the Indian Fisheries Act, 1897 (Central Act 4 of 1897) and the said GO deals with the periods of restrictions on fishing in Waters specified in the schedule and also the restrictions on the tackles to be used for fishing during the specified periods and further states that no person shall fish in the waters specified in the schedule of the GO during the permitted period except under and in accordance with a licence issued by the Assistant Director of Fisheries, Eluru or by an authorised officer. The persons not following the mandate in the GO are also liable for punishment and the GO contains certain penal clauses in that regard besides seizure of implements of the fishermen who violate the clauses/terms of the GO. Further, both parties fairly admit that obtaining a licence for fishing is mandatory and it is also borne out by record that both parties are obtaining licences for fishing. Therefore, it can be safely said that the GO is applicable to the subject matter of the instant case. Schedule A of the GO includes Kolleru Lake that is included in the revenue Taluqs of Eluru and Bhimavaram of West Godavari and Kaikaluru Taluq of Krishna District. The schedule of the GO also mentions Upputeru river connecting Kolleru lake with Bay of Bengal and includes the creeks, arms, branches and all sections of rivers including forest area through which they flow. Therefore, it cannot be said that the GO is restricted in its application to the said places mentioned specifically in the GO; but, it must be said that extends to all the rivers where fishing is permissible and is to be regulated. Thus, the GO is obviously applicable to all the rivers as the GO also provides for issuance of licenses. Further, the GO.Ms.No.5, which modified the distance from one mile to one kilometre, is communicated to all the Districts by the Government. Before the Court of first appeal, both the parties had adduced additional evidence with the permission of the Court of first appeal. ON the side of the defendants, the certified copies of orders and pleadings in certain writ petitions are exhibited in ‘B’ series. Similarly documents of the plaintiffs were also permitted to be exhibited in ‘A’ series. Exhibit B2, is the certified copy of the order dated 18.02.2005 of this Court in W.P.No.7833 of 1997. The said petition is filed by the plaintiffs herein questioning the action of the Government in not removing the valakattu at ‘Y’ marked portion. The said petition was dismissed by observing that a civil dispute is involved. Exhibit B4 is the affidavit of one of the plaintiffs herein in WP.No.10873 of 2002. That writ was filed by the plaintiffs during the pendency of the first appeal in this lis. A perusal of the said exhibit would show that the said writ petition was filed challenging the GO.Ms.No.5. In the said proceeding, it was admitted by the plaintiffs that Navarasapuram valakattu and Kondalamma temple valakattu were erected as per the distance prescribed in the Rule 3(1) of G.O.Ms.No.50 that is by maintaining one mile distance between the two valakattus. It is inter alia alleged before this Court in the writ proceedings that the defendants have managed and obtained G.O.Ms.No.5 by influencing the authorities concerned. Nonetheless, the very conduct of some of the plaintiffs herein in filing a writ petition challenging the GO.Mos.5 and their very averments before this Court in the writ proceedings would make it manifest that the two GOs are applicable to the valakattus of the parties in the present lis erected in Vasista Godavari. This Court had dismissed the writ petition challenging GO.Ms.No.5 and exhibit B3 is the order of this Court in that regard. Coming to the applicability of the GO Ms no. 5, it is an admitted fact that the fishermen exercising rights to catch fish are obligated to obtain licenses periodically and that fishing without a license invites penal consequences. Therefore, Fisheries Department of the Government is entitled to regulate the activity of fishing periodically and one of modes of regulation is by issuance of fresh licences or renewing existing licenses. Granting licenses and renewing licenses periodically is subject to the Government Orders, Rules, Regulations and the law in force at the relevant time. Therefore, GO.Ms.No.5 cannot be said to be not applicable as it was issued during the pendency of this lis. Any licence that will be issued after the issuance of the said GO will be in accord with terms of the said GO. Therefore, the distance that is to be maintained between the two valakattus can be taken as 1 K.M as per GO.Ms.No.5. As already noted, the valakattu which is of the defendants which is in between the two valakattus of the plaintiffs is not within a prohibited distance from any one of the valakattus of the plaintiffs. The distance between Navarasapuram valakattu and the defendants’ valakattu is 1259 meters and the distance between the Kondalamma temple valakattu and the defendants’ valakattu is 1194 meters. Both the distances mentioned above work out to more than 1 K.M. Therefore, the valakattu of the defendants is not within a prohibited distance from the two valakattus of the plaintiffs on either side. As a sequel it must be held that no mandatory injunction can be granted against the defendants and in favour of the plaintiffs. Simply because the plaintiffs are having their two valakattus since a long time, they cannot claim exclusive rights over the River Vasista Godavari and prohibit any other group of fishermen from erecting a valakattu at any place in that river. No private person or body of persons like the plaintiffs can claim exclusive rights over a River like the Vasista River. They can only complain if the newly erected valakattu is within a prohibited distance of their valakattus already in existence.
5. (d) Without disturbing the findings recorded supra, let the question be examined assuming for a moment that the GOs are not applicable to the present river Vasista Godavari. The Court of first appeal by giving cogent reasons had held that the custom that 2 miles distance must be maintained is not established. When there is no proof of the custom regarding the distance to be maintained between two valakattus and when there is no applicable Government Order specifying the distance to be maintained between two valakattus then the question is, - ‘what is the reasonable distance to be maintained between two valakattus?’ GO.Ms.No.5 makes a reference to a letter in LR.No.170866/C.3/2001 dated 06.12.2001 which was addressed by the Commissioner of Fisheries to the Secretary to the Government. A reading of the said letter would show that the 1st defendant in the present suit and 193 others of Narasapur Mandal, West Godavari District made a representation stating that they are depending upon fishing profession by using valakattu system and that in that representation they have requested to decrease the operational distance of valakattus from one mile to one kilometre so that more number of fishermen can be accommodated. The said letter also refers to the recommendations in the reports of the Assistant Directors, Fisheries of Eluru and Rajahmundry wherein they had also stated to the effect that valakattu fishing is in operation in their jurisdictions and had recommended to reduce the distance from one mile to one kilometre for the benefit of the fishermen. Keeping in view the recommendations of Assistant Directors of Fisheries, Eluru and Rajahmundry and representations from fishermen community and present prevailing conditions in Eluru and Rajahmundry divisions, a request was made in the said letter by the Commissioner of Fisheries to amend the Rule 3 of GO.Ms.No.50. Pursuant to the said letter, the amended GO was issued reducing the distance. Therefore, the competent officers of the department concerned after considering the representations from the members of the fishermen community in large numbers and taking into consideration the prevailing conditions had recommended for the reduction of the distance and after such detailed exercise the GO.Ms.No.5 was issued by the Government fixing the present distant at one kilometre. In the absence of any evidence to the contra, the fishermen doing the fishing operations in same fashion in Waters of the villages situate in the same District or in the Waters in neighbouring villages of Neighbouring Districts may be subjected to same restrictions and may be conferred the same benefits as per Rules of equity and fairness.
Therefore, even if the GOs are not applicable and in the absence of any other evidence as to what is the reasonable distance, the distance of one kilometre fixed in the GO.Ms.No.5 can be considered as a rational and realistic yardstick for the reasonable distance to be maintained between two valakattus in River Vasista Godavari also. Viewed thus, this Court finds that the plaintiffs are not entitled to a mandatory injunction.
5. (e) The learned counsel for the appellants/plaintiffs had contended forcibly that GOMs.No.5 which was issued during the pendency of the lis shall not be given retrospective operation and in support of the said contention, he had first submitted that the rights of the parties crystallised when the suit OS.No.181 of 1995 was filed and that therefore, the GOS.Ms.No.50 which prescribed a distance of one mile which was in force at that time shall be applied but not the amended GO.Ms.No.5 by which the distance was reduced from one mile to one kilometre. He had placed reliance on the decisions in Vallabhaneni Lakshmana Swamy and others
[1]
v. Valluru Basavaiah and others a n d Lakshmi Narayan Guin and
[2]
others v. Niranjan Modak and had contended that a rule, an order or a regulation prescribing the distance to be maintained between two valakattus is not procedural in nature but it deals with a substantive right and therefore by giving retrospective operation to amended GOMs.No.5 which was issued subsequent to the lis between the parties, a right which is vested with the plaintiffs cannot be defeated and that, therefore the amended GO.Ms.No.5 cannot be applied to the facts of the case. There is no dispute with the legal proposition that any law affecting a vested right or a substantive right shall be given prospective or retrospective operation depends upon the facts of the case and the legislative intent and other relevant factors. In the case on hand, the conduct of the plaintiffs in challenging the amended GO.Ms.No.5 by filing writ petitions was taken into consideration to come to a conclusion that GO.Ms.No.5 as amended is applicable to the facts of the case. Further, the admitted fact that the parties are obtaining licenses from the fisheries department periodically and from time to time for catching fish is also taken into consideration as a criterion for the applicability of GO.Ms.No.5 as it is undisputed that grant of fresh licenses and renewal of existing licenses would be governed by the rules and regulations or Government Orders in force as on the date of granting fresh licenses and renewal of existing licenses. Be that as it may. This Court has also considered the alternative contention that even assuming that the amended GO.Ms.No.5 is not to be applied; still the reasonable distance that is to be maintained between two valakattus is only one kilometre. Therefore, the decision in the case is rendered on facts peculiar to the case and hence the ratios in the decisions referred to supra are not helpful, and the contentions now raised on the prospective operation of GO.Ms.No.5 cannot be countenanced being devoid of merit.
5. (f) Coming to the issue of plaintiffs’ entitlement to the relief of declaration in regard to the two valakattus of the plaintiffs, the trial Court had granted the said relief. The Court of first appeal had refused to grant the relief of declaration to the plaintiffs though their valakattus were and are in existence since a very long time. It is borne out by the record that the valakattus of the plaintiffs viz., Navarasapuram valakattu and Kondalamma temple valakattu are in existence since a very long time. Though such finding was recorded by the trial Court and also the Court of first appeal, the relief of declaration was not granted by the Court of first appeal and the relief granted by the trial Court was reversed. In fact it is fairly conceded before this Court that though the Valakattu of the defendants herein is of relatively recent times a relief of declaration was granted to them in their suit OS.No.41 of 1997. Thus, the Court of first appeal had allowed a newly erected valakattu of the defendants to remain in existence, by granting a declaration also. Therefore, in the facts and circumstances of the case, it is just and fair to grant a relief of declaration to the plaintiffs holding that they are entitled to erect and continue to erect the two existing valakattus at Navarasapuram and Kondalamma temple points subject however to the condition that they are entitled to do so at the present two points and exercise the rights to catch fish by operation of the said valakattus only after obtaining necessary permissions or licenses periodically or from time to time as required under the Orders, Rules and Regulations etcetera governing such fishing operations.
6. The substantial questions are accordingly answered.
7. In view of the findings of this Court, the Second Appeal is partly allowed declaring that the plaintiffs are entitled to erect and continue to erect the two existing valakattus at Navarasapuram and Kondalamma temple points subject however to the condition that they are entitled to do so at the present two points and exercise the rights to catch fish by operation of the said valakattus only after obtaining necessary permissions or licenses periodically or from time to time as required under the Orders, Rules and Regulations etcetera governing such fishing operations. However, the Second Appeal is dismissed insofar as the relief of mandatory injunction claimed by the plaintiffs. There shall be no order as to costs. As a sequel, miscellaneous petitions pending, if any, in this second appeal shall stand closed.
JUSTICE M. SEETHARAMA MURTI 2nd June 2014 Vjl
[1] 2004(5) ALT 755 (LB)
[2] AIR 1985 SC 111