Case Note & Summary
Background: The Idol Arulmigu Thirunageswaramudaiyar temple, represented by its Thakkar/Executive Officer, a public temple governed by the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, sought to protect its traditional fishing rights in two tanks, Nallur Melakulam and Nallur Keelakulam, against auction by the Public Works Department (PWD). The temple claimed that it possessed the tanks absolutely and had been leasing fishery rights as its sole source of income for temple pujas, with rights recorded in the Temple Property Register and revenue records, and paying kist regularly. Facts: The PWD issued an auction notification dated 25.02.2022 under G.O. Ms. No.16 dated 14.01.2011, which authorized the department to lease fishing rights in all tanks under Water Resources Organization control. Earlier, in response to similar writ petitions by temples, this Court had stayed such auctions and directed a joint meeting of officers, where it was noted that temples had customary fishing rights for over a century. Despite the matter being sub judice and the joint meeting's outcome pending government decision, the respondent issued the impugned notification. The temple had previously obtained stay orders in 2019 and 2020 against similar auctions. Legal Issues: The core question was whether the G.O. could apply to temple tanks when the temple held long-standing ownership and fishery rights. Arguments: The petitioner contended that the G.O. intended for farmers' organizations under Tamil Nadu Act 7 of 2001 did not cover temples, and that the executive order could not override vested property rights. The respondent stood by the G.O.'s mandate. Court's Analysis: The court referred to its earlier judgment in W.P.(MD)Nos.4693 and 16534 of 2015, which held that fishery right is an immovable property right that cannot be extinguished by an executive order; the G.O. while lawful, was inapplicable to temple tanks absent a statutory decision adverse to temples. The court noted that the government's policy decision was still awaited and in the interim, the G.O. could not be used to auction fishing rights in temple-owned water bodies. Decision: The court allowed the writ petition, quashed the auction notification in respect of Sl. Nos.5 and 6, and directed no interference with the temple's fishery rights. No costs.
Headnote
A) Constitutional Law - Executive Orders - Fishery Rights - Constitution of India, Articles 162 and 226; Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - The petitioner temple, a public temple under the Act, claimed absolute ownership and recorded fishery rights over Nallur Melakulam and Nallur Keelakulam, asserting that the right was vested from time immemorial, recorded in temple property register and revenue records, and that the temple regularly paid kist to the Government. The Public Works Department, relying on G.O. Ms. No.16 dated 14.01.2011, issued an auction notification for fishing rights. Relying on an earlier order of this Court in W.P.(MD)Nos.4693 and 16534 of 2015 dated 13.09.2023, which held that fishery right being an immovable property right cannot be taken away by executive fiat and that G.O. Ms. No.16 is inapplicable to temple water bodies unless the Government takes a statutory decision adverse to the temples, the Court set aside the auction notification in respect of Sl. Nos. 5 and 6, allowing the writ petition. Held that until such a decision is taken, the G.O. does not apply to temple tanks. (Paras 5-7)
Issue of Consideration
Whether Government Order in G.O.Ms.No.16, Public Works (W2) Department, dated 14.01.2011 applies to fishery rights vested with a temple, and whether the Public Works Department's auction notification for fishing rights in temple tanks is valid.
Final Decision
The writ petition is allowed. The auction notification in Ka.No.Koo.7/2021/U.Poo.1 dated 25.02.2022 in respect of Sl.No.5 (Nallur Melakulam) and Sl.No.6 (Nallur Keelakulam) is set aside. No order as to costs. Connected miscellaneous petition closed.
Law Points
- Legal points not extracted
- Fishery right is an immovable property right
- cannot be taken away by executive order without statutory intervention
- G.O. Ms No. 16 inapplicable to temple tanks pending government decision
- Customary rights of temples over fishery must be respected
- Executive orders cannot override established property rights of religious institutions
