Case Note & Summary
The writ petition was filed by Idol Arulmigu Thirunageswaramudaiyar, a public temple governed by the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, challenging an auction notification dated 25.02.2022 issued by the Junior Engineer, Public Works Department (Water Resources Organization), for leasing fishery rights in Nallur Melakulam and Nallur Keelakulam. The temple claimed absolute ownership and perpetual fishery rights over these tanks, recorded in the temple property register since 11.10.1966, and that its daily pujas were funded solely from fishery lease income. The temple had been paying kist to the government for the fishery right and conducting auctions with concurrence from the Hindu Religious and Charitable Endowments Department. The respondent, relying on G.O. Ms. No. 16 dated 14.01.2011, which empowered the Public Works Department to lease fishing rights in all tanks under Water Resources Organization control, issued the impugned notification. The petitioner contended that the G.O. did not apply to temple tanks and cited earlier writ petitions where this court had granted stay orders and held the G.O. inapplicable to temples, notably W.P.(MD)Nos.4693 and 16534 of 2015 dated 13.09.2023, which declared that fishery right is an immovable property right that cannot be taken away by executive fiat. The court, after hearing both sides, examined the G.O. and the earlier orders. It noted that the G.O. was an executive measure under Article 162, intended for farmers' organizations, and lacked statutory backing. The court held that the temple’s long-standing fishery rights, akin to immovable property, could not be extinguished by an executive order. It also recorded that a joint meeting of secretaries in 2020 had suggested restoring fishing rights to temples and that no adverse policy decision had been taken. Following the ratio of the earlier decisions, the court concluded that the G.O. was inapplicable to the petition tanks. Accordingly, it set aside the auction notification concerning the two tanks, directed the respondent not to interfere with the temple’s fishery rights, and allowed the writ petition with no order as to costs.
Headnote
A) Property Law - Fishery Right as Immovable Property - Fishery right is a right in immovable property that cannot be taken away by executive fiat; such right enjoyed by temples for over a century is protected - Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - The temple had been enjoying fishery rights from time immemorial, recorded in property register and revenue records, and paying kist - Held that the executive order cannot extinguish such rights without statutory intervention (Paras 5-6). B) Administrative Law - Executive Orders vs. Vested Rights - G.O. Ms. No. 16 dated 14.01.2011 is an executive order under Article 162 of the Constitution and lacks statutory force; it cannot override long-standing immovable property rights of temples - Constitution of India, Article 162 - The Government Order was issued to distribute income from fishery auctions to farmers' organizations, but it does not apply to temple-owned tanks - Held that until the government takes a decision adverse to temples through statutory means, the G.O. remains inapplicable (Paras 5, 6). C) Constitutional Law - Applicability of Government Orders to Religious Institutions - Temples governed by the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, fall outside the purview of Clause 4(iv) of G.O. Ms. No. 16 - Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - The clause forbids organizations and individuals from conducting fishery auctions without government permission, but it was not intended for temple tanks - The court held that temples are not bound by restrictions meant for Water Users Associations (Paras 5-6). D) Civil Procedure - Precedential Value of Earlier Decisions - Following W.P.(MD)Nos.4693 and 16534 of 2015, dated 13.09.2023, and W.P.(MD)Nos.1913 and 1914 of 2020, the court reiterated that until a statutory decision is taken, G.O. Ms. No. 16 cannot be applied to temple tanks - Constitution of India, Article 226 - The earlier decisions had declared the G.O. inapplicable and directed a joint meeting of officials; no adverse policy decision had been taken thereafter - Quashed the impugned auction notification and allowed the writ (Paras 5-7).
Issue of Consideration
Whether the impugned auction notification issued under G.O. Ms. No. 16 dated 14.01.2011 by the Public Works Department is applicable to temple tanks where the temple has long-standing fishery rights recorded in the property register?
Final Decision
Writ Petition allowed. Impugned auction notification serial nos.5 and 6 quashed. Respondent directed not to interfere with petitioner temple's fishery rights in Nallur Melakulam and Nallur Keelakulam. No order as to costs.
Law Points
- Legal points not extracted
- Fishery right is a right in immovable property
- Executive order cannot take away vested rights
- G.O. Ms. No. 16 dated 14.01.2011 does not apply to temple tanks
- Until statutory decision adverse to temple is taken
- G.O. inapplicable
- Precedent from earlier writ petitions followed
