B. S. A. SWAMY, J. ( 1 ) THE facts of these two cases are very interesting and from Secretary to down below every officer thinks that he can act as he likes without reference to the concerned statutes and rules made thereunder. It is not known whether the people miseries will be further increased or a day will come when good sense enter the minds of the bureaucracy. ( 2 ) IT is not in dispute that Rapalavari tank is a minor irrigation tank situated within the local limits of Ipur grampanchayat and this tank vested in the grampanchayat under Section 56 (1) (b) of grampanchayat Raj Act, 1994 (hereinafter referred as act 1994 ) corresponding section being Section 65 (l) (b) of the old Act and the Grampanchayat is enjoying the income derived by leasing out the fishery rights in the tank as well as the bunds for grazing purposes and the income from the trees standing on the bunds. It is also not in dispute that the local Fishermen Cooperative Society which filed an application seeking permission of the Court to come on record as respondent No. 7 was enjoying the fishing rights in the tank under the statutory rules issued in G. O. Ms. No. 343, panchayat Raj (Services-I) Department dated 10-4-1978 by the Government in exercise of the rule making power under section 217 of the A. P. Gram Panchayat Act, 1964 which continuous to be in force even after new Panchayat Raj Act came into for in 1994. ( 3 ) DURING the course of arguments it also came to light that the Government declared the right of the Grampanchayat to take out the fishing rights in the tank in question on an earlier occasion in G. O. Rt. No. 710 (P and rd) dated 3-7-1991. ( 4 ) WHILE things stood thus, the State legislature enacted A. P. Farmers management of Irrigation Systems Act (Act 11 of 77) with the main object of management of irrigation system with the farmers participation. The functions of water Users Association constituted under the Act were mentioned in Section 17 of the act and under Clause k of the said section the association can raise its own resources to fulfill the obligations cast on it. Chapter IV Section 22 of the Act deals with resources to these organisations. The functions of water Users Association constituted under the Act were mentioned in Section 17 of the act and under Clause k of the said section the association can raise its own resources to fulfill the obligations cast on it. Chapter IV Section 22 of the Act deals with resources to these organisations. It is useful to extract that Section which is as under:"22. Resources of farmers organisation: The funds of the farmers Organisation shall comprise of the following, namely: (i) grants received from the government as a share of the water tax collected in the area of operation of the Farmers organisation. (ii) such other funds as may be granted by the State and Central government for the development of the area of operation; (iii) resources raised from. any financing agency for undertaking any economic development activities in its area of operation; (iv) income from the properties and assets attached to the irrigation system within its area of operation; (v) fees collected by the farmers organisation for the services rendered in better management of the irrigation system. (vi) amounts received from any other source. " ( 5 ) FROM the above, it is seen while the resources have to be mobilised by these organisations through the grants received from the Government and water tax collected from the farmers in their area of operation apart from raising loans from financing agencies to undertake any economic development activity and the fees collected from the farmers for the services rendered by the association for better management of the irrigation system. Sub-clause (iv) says the organisation is entitled to receive income from the properties and assets attached to the irrigation system within its area of operation and Clause (vi) is omnibus clause. The intention of the legislature in incorporating Clause (iv) cannot be culled out either from the provisions of the Act or from the rules made thereunder. If the intention of the legislature is to confer aright on the organisation to enjoy the income derived by leasing out the fishing rights in the irrigation tanks and the tress standing on the bunds etc. If the intention of the legislature is to confer aright on the organisation to enjoy the income derived by leasing out the fishing rights in the irrigation tanks and the tress standing on the bunds etc. , such a provision has to be made in the Act and also amend section 65 (1) (b) of the A. P. Gram Panchayat act replaced by A. P. Panchayat Raj Act, 1994 in which corresponding provision was made in Section 56 vesting the minor irrigation tanks in the Grampanchayat and section 56{l)9b) is more specific about the enjoyment of fishing rights by the grampanchayat in minor irrigation tanks. For better understanding of the case, section 56 of the Panchayat Raj Act is reproduced herein:"56. Maintenance of irrigation works, execution of kudim. aramat. etc. (1) (a) Subject to such conditions and control as may be prescribed, the government may transfer to any grampanchayat the protection and maintenance of any village irrigation work, the regulation of turns of irrigation, or distribution of water from any such irrigation work to the field depending on it. (b) Subject to such restriction and control as may be prescribed, the fishery rights in minor irrigation tanks and the right to auction weeds and reeds in such tanks and the right to plant trees on the bunds of such banks and enjoy the usufruct thereof shall vest in the gram Panchayat. (2) The Grampanchayat shall have power, subject to such restrictions and control as may be prescribed, to execute kudimaramat in respect of any irrigation source in the village and to levy such fee and on such basis for the purposes thereof as may be prescribed: provided that nothing in this Section shall be deemed to relieve the village community or any of its members or his liability under the Andhra Pradesh (Andhra Area) Compulsory Labour act, 1858 (Central Act 1 of 1858), or any other law similar thereto for the time being in force in respect of any irrigation source in the village, in case the Grampanchayat makes default in executing kudimaramat in respect of that irrigation source. " ( 6 ) FROM this background, the controversy that has cropped up in this writ petition has to be resolved i. e. , whether the petitioner schedule tank vests in grampanchayat or in the Water Users association in the light of the Government orders issued in G. O. Ms. " ( 6 ) FROM this background, the controversy that has cropped up in this writ petition has to be resolved i. e. , whether the petitioner schedule tank vests in grampanchayat or in the Water Users association in the light of the Government orders issued in G. O. Ms. No. 70 dated 23-7-1998 and G. O. Ms. No. 71, dated 23-7-1998 in exercise of its executive power under Section 162 of the Constitution of india, but not in exercise of any statutory power vested in it. ( 7 ) AFTER the lease period in favour of the fishery society was over on 30-6-1998 the divisional Panchayat Officer (for short dlpo ) in his proceeding L. Dis. No. 838/98 a dated 15-7-1998 fixed the upset price for leasing out the fishing rights in the tank for a period of two years though under statutory rules any sale of fishing rights in favour of fishermen society should be for a period of 3 years. It is not known how the dlpo can fix the upset price for offering the leasehold rights of fishing only for two faslis i. e. , 1408 and 1409 commencing from 1-7-1998 to 30-6-2000 without reference to the statutory obligation cast on him. Having received the proceedings the grampanchayat directed the fishermen society to pay the amount as per the rules and entered into an agreement to take the fishing rights on lease by way of a registered letter. The society having received a registered letter did not even chose to give a reply leave apart paying the lease amount as directed by the grampanchayat. At that stage on 23-7-1998 the Government issued two impugned g. Os. 70 and 71 dated 23-7-1998 on the basis of the representations received from the fishermen Co-operative Societies as well as the Grampanchayats. While the societies made representations to the Government to fix the lease amount (upset price) nominally to benefit the fishermen community, the grampanchayats insisted that they shall be permitted to auction the fishing rights in the tanks to augment their resources. The decision of the Government in Para 6 of g. O. Ms. No. 70 dated 23-7-1998 is extracted herein. "accordingly the Government directs that, in any continuation of the orders issued in G. O. Ms. No. 343, Panchayat raj (Sam-I) Department, dated 10-4-1978 and in G. O. Ms. The decision of the Government in Para 6 of g. O. Ms. No. 70 dated 23-7-1998 is extracted herein. "accordingly the Government directs that, in any continuation of the orders issued in G. O. Ms. No. 343, Panchayat raj (Sam-I) Department, dated 10-4-1978 and in G. O. Ms. No. 776, food and Agriculture (Fish-II) department, dated 31-12-1990 with the leasing or auction of fishing rights will continue to be done by Fisheries department and while leasing out fishing rights first preference shall be given to the genuine Fishermen Cooperative Societies having jurisdiction over the Minor Irrigation Sources functioning under Water Users associations in the State. The grant of lease of Fishery rights shall be given by the Competent Authority of the fisheries Department not below the rank of Assistant Director of fisheries. " ( 8 ) FROM this it is seen that the government while continuing the policy of leasing out the fishing rights in the tanks to the Fishermen Co-operative Societies under g. O. Ms. No. 343 as well as G. O. Ms. No. 776 the leasing or auction of fishing rights in the minor irrigation sources vested in the Water users Associations will be leased out by a competent authority of the Fishery department not below the rank of Assistant director of Fisheries. G. O. Ms. No. 71 was issued directing the payment of the rentals by the Fisheries Department to the Water users Association. From the reading of these two G. Os. it is clear that a no representation was made by the Water users Association either for transfer of minor irrigation tanks that are vested in grampanchayat to them or permit them to enjoy the income derived from the leasing of fishing rights in these tanks. It is not known in whose mind this idea came all of a sudden and no reasons were given for directing the payment of the lease amounts to the Water Users Association. At least, to find out whether the decision is supported by any statutory provision, I directed the government Pleader to find out whether the Government passed any orders to transfer the irrigation tanks to the Water users Association, and the answer was in negative. When the minor irrigation tanks vested in Grampanchayats by virtue of statute, it is not known how the government can issue these two G. Os. When the minor irrigation tanks vested in Grampanchayats by virtue of statute, it is not known how the government can issue these two G. Os. in exercise of executive power under article 162 of the Constitution of India when the field is squarely covered by the statutory provisions and the rules made therein under Grampanchayat Act replaced by Panchayat Raj Act. ( 9 ) COMING to the facts of the case the fisheries Development Officer in his letter no. 24/societies/98-99, dated 16-3-1999 informed the Fishermen Society that the fisheries Department fixed the upset price for leasing out the fisheries rights by 10% excess over and above the amount that was fetched during the previous year and directed the society to pay an amount of rs. 1,92,500/- towards the lease amount for the Fasli 1408 (1998-99) by way of a demand draft drawn in favour of President, Water users Association, Epur and the society need not pay the amounts to the grampanchayat. The letter also stated that orders for leasing out the fishing rights will be got issued by the Collector for Fasli 1408. The Grampanchayat did not offer any explanation what it has done during the year 1998-99 to assert its right over the tank. But on 19-4-1999 the Grampanchayat issued another notice to the society to pay an amount of Rs. 1,85,000 for the year 1998-99. The society having received the letter sent a reply on 3-5-1999 stating that the amount was already paid to the Water Users association and it need not pay the amount demanded by the Grampanchayat. In those circumstances, the Grampanchayat issued notice for leasing out fishing rights in the tank by way of auction. On that, the society seemed to have approached the DPO who in turn gave telegram on 11-5-1998 to the grampanchayat not to conduct auction, and thereafter the Collector in his proceedings dated 28-7-1999 directed the grampanchayat not to conduct auction. Questioning the said order the petitioner-Grampanchayat filed a revision before the Government on 26-5-1999 and though the government initially passed interim stay of the order of the Collector on 2-6-1999, after hearing both the parties issued g. O. Rt. No. 1309 PR and PD (PTS IV) department dated 21-7-1999 vacating the interim stay granted earlier by holding that the Government felt that no interference is required without reference to the earlier orders passed by the Government in g. O. Rt. No. 1309 PR and PD (PTS IV) department dated 21-7-1999 vacating the interim stay granted earlier by holding that the Government felt that no interference is required without reference to the earlier orders passed by the Government in g. O. Rt. No. 710 (P and RD) Department dated 3-7-1991. ( 10 ) QUESTIONING the said proceedings, the Grampanchayat filed W. P. No. 15825 of 1999 on 22-7-1999 and no interim order seemed to have been granted by this Court. Subsequently, the Grampanchayat filed another Writ Petition in W. P. No. 16970 of 1999 by engaging different Counsel questioning the validity of G. O. Ms. Nos. 70 and 71 dated 23-7-1998. While admitting the writ Petition No. 16970 of 1999 by order dated 31-8-99, I directed the grampanchayat to implead the Fishermen society as respondent No. 7. In the meantime, the Society itself on its own filed an application to get itself impleaded in the writ petition as it is very conscious of its rights. On 31-8-1999, I directed both the grampanchayat as well as the Fisheries department not to auction the leasehold rights for fishing in the tank pending disposal of the writ petition. Now, these two writ petitions came up for hearing before this Court. ( 11 ) AS far as the validity of these two g. Os. 70 and 71 are concerned, I have already adverted to the provisions of the management of Irrigation System Act and nowhere I find a provision transferring the minor irrigation tanks which are vested in the Grampanchayat to the Water Users association. As I have already observed that these two G. Os. were issued by the government in exercise of its executive power under Article 162 of the Constitution of India without passing any orders legal or illegal transferring the minor irrigation tanks vested in the Grampanchayat under section 56 of the Panchayat Raj Act of 1994 to the Water Users Association purely under an imagination that these tanks vested in them without any authority of law. ( 12 ) NEXTLY, the Government Pleader placed reliance on G. O. Ms. No. 776. It is useful to refer to G. O. Ms. No. 776, Food and agriculture (Fish. ( 12 ) NEXTLY, the Government Pleader placed reliance on G. O. Ms. No. 776. It is useful to refer to G. O. Ms. No. 776, Food and agriculture (Fish. II) Department, dated 30-12-1990 wherein fresh guidelines were issued with regard to leasing of the fishing rights in the water sources in the State on the basis of the recommendations of an expert Committee appointed to go into the all the matters relating to fisheries, i. e. , estimation of fishing wealth, potential for development, increase of production, development of markets etc. , and in suppression of the executive orders issued from time to time for the water resources that are not vested in Grampanchayats. In this G. O. , it is stated that (16) reservoirs and tanks are under the control of the Director of Fisheries and he was directed to de-license these reservoirs and to give them on lease to Fishermen Co-operative Societies to exploit fishing wealth in a big way. It is also stated that instructions in that G. O. were given pending finalisation of policy regarding the development of fishing in the major reservoirs. Clause I of the aforesaid g. O. , speaks re-transfer of irrigation tanks which were under the control of Fisheries department prior to 1987 from Panchayat raj Department to Fisheries Department and the procedure to be followed for leasing out the fishing rights. Clause 3 of the said Governmental order says as under:"procedure regarding tanks vested in the Grampanchayat Act. 1964:- All the sources which vested in the grampanchayat under the grampanchayat Act, 1964 shall continue to be with the respective grampanchayats for the purpose of disposal of Fishery rights. " ( 13 ) EVIDENTLY, there seems to be some confusion in the minds of the authorities responsible for issuance of the said G. O. From Clause 3, it is very clear that the tanks vested in the Grampanchayats under the gram Panchayat Act, 1964 shall continue under the respective Grampanchayats. But clause 1 which speaks of transfer of irrigation tanks that were transferred to panchayat Raj Department in the year 1987 stands transferred to Fisheries Department. It is not known whether the Government is referring to the tanks vested in the grampanchayat or minor irrigation tanks or some other tanks. But clause 1 which speaks of transfer of irrigation tanks that were transferred to panchayat Raj Department in the year 1987 stands transferred to Fisheries Department. It is not known whether the Government is referring to the tanks vested in the grampanchayat or minor irrigation tanks or some other tanks. Be that as it may, it is suffice to state again that these orders are only executive orders issued under Art. 162 of the Constitution of India and they cannot have over riding effect over the statutory provisions. At any rate, even after issuance of this G. O. the Fisheries Department was not exercising rights of ownership over the tanks in question leave apart transferring the tank, which vested in the grampanchayat as per the earlier order of the Government in 1991. As stated supra, if the intention of the Government is to transfer the ownership of the minor irrigation tanks to the Water Users associations, to augment its resources for taking up developmental activities, though. the legislation was enacted for a different purposes, at least the Government is expected to transfer the minor irrigation tanks to these Associations. That can only be possible only by amending Panchayat raj Act as well as Management of Irrigation system Act, but not otherwise. ( 14 ) EVEN assuming for a moment, without admitting that the Government can issue G. O. Ms. Nos. 70 and 71, dated 23-7-1998 in exercise of its executive powers, in G. O. No. 70, it is stated that about 70,000 tanks are vested with local bodies and about 8,000 minor resources/tanks are under the control of Water Users associations in the State. It is not known from where the Government got this information, more so, in the absence of any order transferring the ownership of these resources to the Water Users Association. ( 15 ) AT this stage the learned Government pleader strenuously contended that the minor irrigation tanks are not vested in the grampanchayats and only water resources mentioned under Section 80 of the panchayat Raj Act are vested in the grampanchayats and hence the government is well within its competence to transfer these tanks to the Water Users associations. In support his contention, he relied upon the judgment of the Division bench of this Court in Vaddavalli Fishermen co-operative Society Limited vs. Rayidi Krishna kumari. I have carefully perused the said judgment. In support his contention, he relied upon the judgment of the Division bench of this Court in Vaddavalli Fishermen co-operative Society Limited vs. Rayidi Krishna kumari. I have carefully perused the said judgment. Admittedly the tank in question is a major tank and as such, major irrigation tanks do not vest in the Gram Panchayats under any provisions of the Act. Their lordships were justified in holding that fishery rights in these water resources which are vested in the Grampanchayat is only in respect of the water works vested in the Grampanchayat by operation of subsection (1) of Section 80 of Panchayat Raj act, 1994. Their Lordships observed that "fishery rights in the tanks relating to irrigation works do not vest in the grampanchayat and such rights have never been intended to be vested on the grampanchayat by operation of any statutory or delegatory power" should be understood in the context of the facts of the case as their Lordships dealing with the fishing rights in major tanks. On the other hand, another Division Bench of this Court comprising of the Honourable the Chief justice P. S. Mishra and Honourable Sri justice P. Ramakrishnam Raju (as they then were) in Writ Appeal No. 997 and 1005 of 1997 dated 1-10-1997 categorically held that all minor irrigation tanks together with the right to auction of weeds and reeds in such tanks and the right to plant trees on the bunds of such tanks and enjoy the usufruct thereof shall vest in the Grampanchayat in the following terms:"as already seen under Sec. 56 (1) (b), the fishery rights in minor irrigation tanks together with the right to auction weeds and reeds in such tanks and the right to plant trees on the bunds and enjoy the usufruct thereof shall vest in the Grampanchayat subject to such restriction and control as may be prescribed as such tanks and vested in the Grampanchayat. Grampanchayat has the right to enjoy the fishery rights subject to such restrictions and control as may be imposed by the Government. The words restriction and control as employed in the said section refer to the enjoyment of fishery rights by the gram Panchayat. Control cannot mean interference with the right of the Gram panchayat in which the tank is vested for all purposes. The words restriction and control as employed in the said section refer to the enjoyment of fishery rights by the gram Panchayat. Control cannot mean interference with the right of the Gram panchayat in which the tank is vested for all purposes. Only regulation or control can be had by the Government with regard to the manner of exercise of the right in the tank or enjoyment of the said right by the Gram Panchayat. Therefore, we are unable to accept the contention of the Writ Petitioner that the Gram Panchayat has no right to auction the fishery rights in the tank in question and the first respondent-Assistant Director of Fisheries is entitled to lease out the tank to the petitioner-Society. " ( 16 ) IN the light of Section 56 (1) of the panchayat Raj Act and judgments of this court referred to, if any contra view is taken, it is nothing but amounts to defeating the very intention of the legislature. In fact when the old Gram panchayat Act was repealed by a new Act (Act 5 of 1995), the Section 65 of the old gram Panchayat Act is retained as it is and it is re-numbered as Section 56 in the new act. By any stretch of imagination, the action of the respondent-Government in issuing G. O. Ms. Nos. 70 and 71, dated 23-7-1998 cannot be sustained in law and they are accordingly quashed with a consequential declaration that Raparlavari tank, admittedly a minor irrigation tank is vested in the Grampanchayat and the grampanchayat is entitled to enjoy the income derived from weeds and reeds in this tank apart from the right to enjoy the usufruct of plant, trees on the bunds of the said tank. ( 17 ) ACCORDINGLY both G. Os. are quashed and the Writ Petition No. 16970 of 1999 is allowed. Writ Petition No. 15825 of 1999: ( 18 ) AS the very basis in rejecting the revision petition filed by the Gram panchayat, G. O. Ms. Nos. 70 and 71, dated 23-7-1998 are now declared as illegal. The action of the Fishery Development Officer by his letter dated 16-3-1999 directing the fishermen Co-operative Society to pay the lease amount to the President, Water Users association by way of Demand Draft is not supported by any authority of law. ( 19 ) THE respondents referred to G. O. Ms. The action of the Fishery Development Officer by his letter dated 16-3-1999 directing the fishermen Co-operative Society to pay the lease amount to the President, Water Users association by way of Demand Draft is not supported by any authority of law. ( 19 ) THE respondents referred to G. O. Ms. No. 879, Finance (PWD) Department, dated 19-4-1964 in their counter in support of their contention. I have gone through the said order. It deals with the fishery rights in irrigation projects and reservoirs and it has no application to the tank in question. The tank in question is a minor irrigation tank. As such, the said G. O. would not come to the rescue of the Government. The orders issued by the Collector dated 22-5-1999 as confirmed by the Government in G. O. Rt. No. 1309, Panchayat Raj and Rural development (PTS. IV) Department, dated 21-7-1999 without referring to the earlier orders of the Government in G. O. Rt. No. 710 dated 3-7-1991 wherein the Government made it clear in so many terms that the tank in question vested in the Grampanchayat and the Grampanchayat is therefore well within right to take out the fishing rights in the tank as per G. O. Ms. No. 343 dated 10-4-1978 are quashed and it is declared that the Grampanchayat is entitled to enjoy the income derived from leasing out the fishery rights of the tank in question and usufruct of the trees planted on the bunds of the tank. ( 20 ) THE Fisherman Co-operative Society as well as the Gram Panchayat admitted that the Society enjoyed the fishing rights in the tank for the year 1998-99 (1408 Fasli) without paying any amount to the grampanchayat and as observed earlier, the members of the Fisherman Co-operative society also tried to play politics without bothering themselves about their livelihood and they have supported the Water Users association by paying the amount as directed by the Fisheries Development officer, that, too, at the fag end of the Fasli year and deprived the Gram Panchayat of its legitimate right in enjoying the income received by way of leasing out fishing rights in the tank. Hence if the Society wants to continue the lease, unless it pays the said amount, they are not entitled to claim lease of fishing rights in the tank. Hence if the Society wants to continue the lease, unless it pays the said amount, they are not entitled to claim lease of fishing rights in the tank. But lease in favour of the Society can be renewed by the gram Panchayat only after payment of rentals for the year 1998-99 and after complying with the conditions stipulated in g. O. Ms. No. 343, dated 10-4-1978. However, it is open to the Fishermen Co-operative society to work out its remedies against the president of Water Users Association as well as the officials of the Fisheries department at whose direction it paid the lease amount for the year 1998-99 though belatedly to the Water Users Association to get back its monies. ( 21 ) THERE is controversy with regard to the enjoyment of the fishery rights for the 1409 Fasli year, i. e. , from 1-7-1999 to 30-6-2000. While the Grampanchayat asserted that the Fishermen Co-operative society enjoyed the fishing rights, already, the Society denied the claim of the grampanchayat. But at the same time, the counsel for the Fishermen Co-operative society admitted that the Society is in possession of the tank and if the Society is permitted to catch the fish, his clients will have no objection to pay the rental for the fasli year 1409 also. As the Society itself expressed its willingness to pay the lease amount, it is permitted to carry out fishing operation it is not done earlier by paying the lease amount now to the Gram panchayat Accordingly this writ petition is allowed. No costs.