By a notice dated 29.12.2007, the Commissioner, Keelappavur Panchayat Union, informed the interested members of the public that the lease of fishery rights in Arunthava Piratti Tank in Rajagopal Beri Panchayat, coming within Keelappavur Panchayat Union, for the period from 1.7.2007 to 20.6.2008, would be granted by a public auction to be conducted in the office of the Panchayat Union on 8.1.2008. One Mr.K.Subbiah Pandian, the petitioner in W.P.No.5813 of 2008, participated in the auction and offered the highest lease amount. Therefore, the lease of fishery rights was granted to him by an order of the Commissioner of the Panchayat Union dated 9.5.2008. Though the order was passed only on 9.5.2008, confirming the auction in favour of the highest bidder, the period of lease was indicated in the order to be from 1.7.2007 to 30.6.2008.
2. Aggrieved by the above anomaly, the petitioner gave a representation on the same day, requesting the grant of lease till 30.6.2012. However, without considering his request, the Panchayat Union Commissioner issued an auction notice dated 10.6.2008 for the lease of fishery rights for the subsequent period, from 1.7.2008 to 30.6.2011, in view of an order passed in another writ petition filed by the 3rd respondent. It was followed by another auction notice dated 24.6.2008.
3. Challenging the auction notice dated 24.6.2008, on the ground that the period of lease granted on 9.5.2008 should be for 5 years as per the statutory rules, the highest bidder K.Subbiah Pandian, filed W.P.No.5813 of 2008. In the meantime, the auction was conducted on 24.6.2008 and one S.Murugiah became the successful bidder. Therefore he got impleaded as the fourth respondent in the writ petition W.P.No.5813 of 2008.
4. When the above writ petition W.P.No.5813 of 2008 was taken up for hearing, the petitioner placed strong reliance upon Rule-11 of Tamil Nadu Panchayats (Lease and Licensing of Fishery Rights in Water Sources Vested and Regulated by Village Panchayats and Panchayat Union Councils) Rules, 1999. The said Rule-11 not only prescribed that the lease of fishery rights in the water sources covered by the Rules should be given by public auction, but also prescribed that such lease should be for a period of 5 years. But the fourth respondent relied upon a decision of A. Kulasekaran, J., in K.P.S.Elango vs. The District Collector, Salem {2008 Writ. L.R. 159}, wherein the learned Judge held that the period of 5 years prescribed in Rule-11 is only the maximum period and that it is open to the Panchayat to grant a lease for a lesser period.
5. Unable to agree with the view expressed by A.Kulasekaran, J., on the interpretation to Rule-11, G.Rajasuria J., referred the matter to the Division Bench for an opinion on the following questions:-
"(i) Whether Rule-11 of the Tamil Nadu Panchayat (Lease and Licensing of Fishery Rights in Water Sources Vested and Regulated Councils) Rules, 1999, contemplating five years lease period, is mandatory or otherwise?
(ii) Whether the decision of the learned single Judge of this Court in K.P.S.Elango vs. The District Collector, Salem and 3 others reported in 2008 Writ. L.R. 159 has laid down the correct proposition of law?"
6. In the meantime, two more writ petitions in W.P.Nos.8931 and 8932 of 2008 came to be filed in respect of the fishery rights in Udayar Pirappu Tank (Kanmoi) and Puthantharuvai Kanmoi in Sattankulam Panchayat Union, Thoothukudi District. Subsequently two writ petitions relating to a Tank in Madurai North Taluk, came to be filed in W.P.Nos.4817 and 5248 of 2009. Since the issue raised in all the writ petitions related either to the interpretation to Rule-11 of the aforesaid Rules or to the enforceability of the guidelines, all of them were clubbed together and taken up along with the reference made in W.P.No.5813 of 2008.
7. We have heard Mr.G.Prabhu Rajadurai and Mr.G.Ethirajulu, learned counsel appearing for the petitioners in these writ petitions, Mrs.R.Anitha, learned Additional Government Pleader, appearing for the official respondents and Mr.Veera.Kathiravan, learned counsel appearing for the contesting 4th respondent in W.P.No.5813 of 2008.
8. The sheet anchor of the case of the petitioners is that when the statutory rules and the government orders prescribe a period of 5 years for the grant of lease of fishery rights in public tanks, the competent authorities cannot restrict the period to 1 year or more. In order to find an answer to this contention, we may have to have an understanding of the type of water resources in the state, the authority with whom they vest and the source of power of those authorities to grant leases of such rights. Hence a brief prelude.
BRIEF PRELUDE:-
9. The Inland Water Sources in the State can be classified into five categories, depending upon the Department in which they are vested. These categories are as follows:-
(i) Rivers and Major and Minor irrigation tanks vested with Fisheries and Public Works Department.
(ii) Water Sources vested with Panchayats and Panchayat Unions.
(iii)Water Sources vested with Municipalities.
(iv) Temple waters vested with Hindu Religious and Charitable Endowments Department.
(v) Rivers, Tanks, Pits, Puddles, Channels etc., in Reserved Forest areas and Thottam Fisheries under the control of Forest Department.
10. It appears that though the procedure for the grant of fishery rights in the water sources in all the departments, is prescribed uniformly to be made by public auction, the period of such grant, is not uniformly prescribed. Moreover, the grant of fishery rights in the water sources vested in Panchayats and Panchayat Unions are now statutorily governed by a set of rules issued under the Tamil Nadu Panchayats Act, 1994. However, the grant of such rights in respect of water sources which vest with the Fisheries Department, Forest Department or the Public Works Department, are not governed by any statutory rules. They are at the most governed by the general Standing Orders of the erstwhile Board of Revenue and the executive instructions issued by the Government from time to time. In respect of the grant of similar rights in water sources which vest with Municipalities or the temples coming under the control of the Tamil Nadu Hindu Religious and Charitable Endowments Department, the rules issued in general under the Tamil Nadu District Municipalities Act or the Tamil Nadu Hindu Religious and Charitable Endowments Act, would hold the field.
11. Historically it appears that the fishery activities in Inland and coastal waters were regulated, as early as during the British Rule in India. The Indian Fisheries Act of 1897 and Madras Fisheries Amendment Act of 1929 made provision for fishery rights in public and private waters. The Tamil Nadu Panchayats Act, 1958 and the Tamil Nadu Lease and Licensing of Fishery Rights in Panchayat and Panchayat Union Tanks Rules, 1983 dealt with the grant of fishery rights and the authority competent to conduct auction of fishing rights.
12. After the introduction of Part-IX to the Constitution under the 73rd Amendment, with a view to strengthen the democratic unit of self-Government, the State of Tamil Nadu enacted the Tamil Nadu Panchayats Act, 1994. The purpose of the said enactment, as seen from
Article 243-G of the Constitution, is to endow the Panchayats with such powers as may be necessary to enable them to function as institutions of self-Government. The devolution of powers and responsibilities upon the Panchayats, was to include the preparation of plans and implementation of schemes for economic development and social justice.
13. Sections 132 and 133 of the Tamil Nadu Panchayats Act, 1994, deal with the vesting of communal property in Panchayats and the maintenance of irrigation works, by the panchayats. They read as follows:-
"132. Vesting of communal property or income in village panchayat - Any property or income including any fishery right which by custom belongs to, or has been administered for the common benefit of the inhabitants of the village or of the holders in common of village land generally or of the holders of lands of a particular description or of the holders of lands under particular source of irrigation shall, if so declared by the Government, vest in the village panchayat and be administered by it for the benefit of the inhabitants or holders aforesaid.
133. Maintenance of irrigation works, execution of kudimaramat, etc - (1) Subject to such conditions and control as may be prescribed, the Government may transfer to any village panchayat or to any particular 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.
(2) The village panchayat or the panchayat union council 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 contained in this section shall be deemed to relieve the village community or any of its members of its or his liability under the Tamil Nadu Compulsory Labour Act, 1858 (Central Act I of 1858), in respect of any irrigation source in the village in case the village panchayat makes default in executing the kudimaramat in respect of that irrigation source. (3) Where the maintenance of any irrigation work, is transferred under this section, the fishery rights of 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."
14. The above provisions make it clear that any property or income including any fishery right, would vest in the village panchayat, (i) only if so declared by the Government and (ii) if such property or income belonged to or had been administered for the common benefit of the habitants of the village. Even otherwise, if the maintenance of any irrigation work is transferred by the Government under Section 133(1), the fishery rights of Government in such work shall be transferred to and vested in the village panchayat or panchayat union.
15. This is why, the Tamil Nadu Panchayats (Lease and Licensing of Fishery Rights in Water Sources Vested and Regulated by Village Panchayats and Panchayat Union Councils) Rules, 1999 issued under G.O.Ms.No.169, Rural Development (P3), dated 16th August 1999, make it clear under Rule 2 that no person shall take any fish from the water sources specified in Appendix-I, except under a lease or licence granted by the panchayat or panchayat union council. The said Rule 2 reads as follows:-
"2. Prohibition of Fishing without lease or licence in water sources under the control of Village Panchayat or Panchayat Council:- No person shall take any fish from the water sources specified in Appendix-I of these rules except under a lease or licence granted by the Village Panchayat or the Panchayat Union Council, as the case may be, or by such authority as may be authorised by them with such conditions as may be specified in the lease or licence, as the case may be, which may be suitably modified or amended from time to time."
16. Appendix-I lists out the water sources to which these rules apply and it reads as follows:-
APPENDIX-I (See Rules 2 and 12)
1) 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.
2) 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.
3) All public water sources vested with Village Panchayats."
17. It is in respect of the lease of fishery rights in the above water sources vested in the village Panchayats or Panchayat Union Councils that Rule 11 prescribes a period of 5 years, with an annual increase of 10% on the lease amount. Rule 11 reads as follows:-
"11. Lease of fishery rights:- The lease of fishery rights in the water sources which vested in the Village Panchayats or the Panchayat Union Council shall be given after conducting public auction by the respective Village Panchayats or Panchayat Union Council, as the case may be. Such lease shall be for a period of five years. Lease amount shall be raised every year at the rate of 10 per cent over the lease amount of the previous year. Upset lease amount shall be fixed by the Village Panchayat and the Panchayat Union Council concerned in consultation with the Inspector of Fisheries of the respective area."
18. Since Rule 11 uses the expression "such lease shall be for a period of 5 years", the successful bidder contends that the village panchayat cannot grant a lease for a period of less or more than 5 years. That the grant for a period exceeding 5 years is violative of Rule 11, is the proposition laid down by a learned Judge of this court in K.Chandru and others vs. The President, Karambakkam Village Panchayat, Karambakkam {2003 (3) MLJ 832}. But the grant of fishery rights for a period of less than 5 years, was held to be not violative of Rule 11 by A.Kulasekaran, J., in K.P.S.Elango vs. The District Collector, Salem and others {2008 Writ.L.R. 159}. Paragraphs-7 and 8 of the said decision runs as follows:-
"7. The entire text of Rule 11 makes it clear that the local body is entitled to enhance the lease amount every year and the five years mentioned therein permit the authorities to grant maximum period of lease. Once lease is granted for one year after compliance of necessary formalities, which is one of the essential conditions of tender, it cannot be altered by the parties after entering into the arena.
8. The remedy under
Article 226 of the Constitution of India will not be available to enforce a contract qua contract. The High Court in its extraordinary jurisdiction normally cannot entertain a petition filed against a commercial contract except in cases where the authorities arbitrarily exercising their discretion for giving contracts at their sweet will and pleasure or there is violation of terms and conditions laid down in the tender notice or act unreasonably or contrary to the public interest or adopt unfair or secret procedures etc. Indeed, the powers of High Court can be invoked for enforcement of Fundamental Rights or other legal rights, but will not apply to mere contractual rights."
19. As we have stated earlier, it is only in respect of water sources vested with village panchayats that the grant of fishery rights is governed by the above statutory rules, one of which has fallen for jural exploration in these petitions. In so far as the water sources which are managed and administered by the Public Works Department and Fisheries Department are concerned, there are no statutory rules, but executive instructions hold the field. Now let us see some of them.
20. It appears that the Revenue Department Standing Order No.211 envisaged that fisheries in all public inland waters such as tanks, rivers, estuaries, canals, drains, etc., whether in-charge of Revenue or Public Works or Rural Development or Fisheries Department should ordinarily be disposed of by lease. In 1993, the Government examined the need for enunciating the policy regarding the lease period for public tanks for fisheries purposes and came out with G.O.Ms.No.332, Animal Husbandry and Fisheries (FS-IV) Department, dated 17.11.1993, the relevant portion of which reads as follows:- "ORDER The Commissioner of Fisheries has submitted proposal that the annual lease of fishery rights in public auction in Panchayat Irrigation/Water Spread tanks may be enhanced to 10 years and that the Panchayat Unions may be authorised to auction the water spread tanks under this control, if the Inland Fish Farmers Development Agencies are not interested to take on lease the tanks reserved for them for doing fish culture. She has also suggested that auctioning the fish culture and fishing rights be done subject to the following conditions that the lessee should undergo a training in Fish culture with the Department of Fisheries and that the lessee should adhere to the advice tendered by Fisheries Department officials in regard to stocking conservancy and exploitation.
2. The Government have carefully examined the need for enunciating the policy regarding the lease period for public tanks for fisheries purpose. Revenue Department Standing Order No.211 and the Government Orders read above lay down the procedure by which Fisheries lease is given by concerned authorities, Revenue Department Standing Order 211 stipulated that fisheries in all public inland waters such as tanks, rivers, estuaries, canals, drains, etc., whether incharge of Revenue or Public Works or Rural Development or Fisheries Department should ordinarily be disposed of by lease.
3. As per Revenue Department Standing Order 211, while granting lease of fishing rights to the Cooperative Societies comprised of Fisherman or of Harijans engaged in fishing should be given the first opportunity. Auctioning of Fishery rights otherwise than by lease should be resorted to only if no Cooperative Societies of Fishermen or Harijans engaged in fishing or the Panchayats are not willing to take up the lease. The procedure envisaged in Revenue Department Standing Order 211 is still in vogue and will continue to operate in future with the modification indicated in para-4 below regarding the period of lease which will be quinquennial instead of annual.
4. (i) All fishery lease shall be for a period of 5 years. Annual leases should not be resorted to;
(ii) There will be an automatic escalation of the lease rent by 10% over the previous year's rate during this five year period. The bids will be taken for the base rate for the first year."
21. In respect of the inland waters taken over by the Government under the Intensive Inland Fisheries Development Scheme, in the districts of Madurai, South Arcot and Villuppuram, the Government issued G.O.Ms.No.33, Animal Husbandry and Fisheries Department, dated 27.2.1995. By the said order, the Government directed the fishery rights of those water sources to be auctioned by the concerned Assistant Director of Fisheries subject to the terms and conditions set out in paragraph-4. Sub para (ii) of paragraph-4 reads as follows:-
"(ii) These tanks be leased to individuals and Inland Fishermen Cooperative Societies for a period of three continuous years to the successful bidder. While calling for tender, upset price (minimum lease amount) should be fixed for each tank taking into account the cost of stocking, productivity of the tank water retentivity and other factors by the Assistant Director of Fisheries concerned subject to approval by the Regional Joint Director / Deputy Director."
22. While the above executive instructions govern the grant of fishery rights in water sources controlled by the Departments of Fisheries, Public Works etc., the grant of such rights in the tanks belonging to temples, are governed by the Religious Institutions (Lease of Immovable Property) Rules, 1963. Rule 3 of these rules, empowers the Trustee to decide the period of lease, but Rule 10 imposes a restriction upon the power to extend the lease.
CASES ON HAND:
23. With the above prelude relating to the grant of fishery rights in various water sources, let us now get back to the facts of the cases on hand.
24. W.P.No.5813 of 2008 By a notice dated 29.12.2007, the Commissioner, Keelappavur Panchayat Union put to auction, the leasehold right to catch fish from the Arunthava Piratti tank in Rajagopal Beri Panchayat. The period of lease was indicated as from 1.7.2007 to 20.6.2008 and the date of the auction was fixed as 8.1.2008. The petitioner in this writ petition was the highest bidder and an order was issued after 4 months of the auction, only on 9.5.2008, indicating therein that the lease would expire on 30.6.2008. Though the petitioner sought lease for 4 years upto 30.6.2012 by a representation dated 9.5.2008, the Commissioner of the Panchayat Union issued fresh auction notices, in view of a writ petition in W.P.No.5557 of 2008, filed by the third respondent. Challenging the fresh auction notices dated 10.6.2008 and 24.6.2008, the petitioner filed the present writ petition. However the auction was conducted as scheduled on 3.7.2008 and hence the successful bidder has now got impleaded as the fourth respondent.
25. Condition No.6 of all the auction notices (dated 29.12.2007, 10.6.2008 and 24.6.2008) relating to this writ petition make it clear that the terms and conditions of lease would be as per G.O.Ms.No.169, Panchayat Development Department, dated 16.8.1999. Therefore there is no dispute about the fact that in so far as this writ petition is concerned, the tank in question is one which is vested with the Panchayat and consequently the provisions of Tamil Nadu Panchayats (Lease and Licensing of Fishery Rights in Water Sources Vested and Regulated by Village Panchayats and Panchayat Union Councils) Rules, 1999, would govern the rights of parties.
26. W.P.Nos.8931 and 8932 of 2008 By an auction notice dated 8.9.2007, published in the Tuticorin District Gazette, the Tahsildar, Sattankulam, who is the second respondent in these writ petitions, put to auction, the right to catch fish for a period of one year from 1.11.2007 to 31.10.2008, in the tanks known as Udayarpirappu tank and Puthantharuvai Kanmoi in Sattankulam Taluk. The petitioner in these writ petitions was the successful bidder in respect of both the tanks and the lease was confirmed in favour of the petitioner, by the District Collector by an order dated 28.11.2007. However, the lease deed was actually executed only on 22.5.2008 by the Tahsildar. Therefore, after giving a representation, the petitioner has come up with these two writ petitions, seeking the issue of Writs of Mandamus, to direct the respondents to renew the lease of fishery rights in both the tanks.
27. The tanks involved in both these writ petitions, are not vested with the Panchayat. Therefore, the auction notice itself was published only by the Tahsildar and that too in the Tuticorin District Gazette. Hence the rules issued in respect of Panchayats (Rule 11 of which is relied upon in other cases) are not applicable to these two writ petitions. But without realising the same, the petitioner has sought Writs of Mandamus, by quoting Rule 11.
28. W.P.Nos.4817 and 5248 of 2009 A notice dated 25.10.2006, inviting tenders for the grant of fishery rights on lease, in various kanmois located in the Taluks of Madurai South, Madurai North and Melur, for 3 years, from 2006-2007 to 2008-2009 was issued by the Assistant Director of Fisheries (Inland Fishing) Madurai. The petitioner submitted the highest bid in respect of Vandiyur Kanmoi in Melamadai Village, Madurai North Taluk. The same was accepted and a lease deed was executed only on 19.1.2007. Clause (6) of the lease deed indicated that the petitioner should terminate his activities of catching the fish, by 30.6.2009.
29. However, after nearly 2 years of the conclusion of the tender process, the petitioner made a representation dated 28.11.2008 claiming that he had suffered huge losses due to various reasons and that therefore, he must be granted some relief. But by a letter dated 19.5.2009, the Assistant Director of Fisheries, who is the second respondent herein, made it clear that the petitioner will have to quit by 30.6.2009, the date of expiry of the lease and that with effect from 1.7.2009, the tank would come under the control of the Government.
30. Challenging the said order of the second respondent dated 19.5.2009 and seeking a direction to the respondents to forbear from interfering with his right till 30.6.2010, the petitioner has filed the writ petition W.P.No.4817 of 2009. Seeking a Writ of Mandamus, to direct the respondents to extend the period of lease from 3 years to 5 years, on the basis of a letter of the second respondent dated 21.8.2008, the petitioner has filed a second writ petition in W.P.No.5248 of 2009.
31. The water sources involved in these two writ petitions, do not obviously vest with any Panchayat and hence the Rules relied upon in the other writ petitions, have no application to these two writ petitions. However, the petitioner herein relies upon a letter of the Assistant Director of Fisheries dated 21.8.2008, in which a reference is made to G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993 and G.O.Ms.No.169, Rural Development Department, dated 16.8.1999 (under which the rules relating to Panchayats were issued).
32. Thus we have on hand two categories of cases viz., (i) a case governed by statutory rules issued under the Tamil Nadu Panchayats Act, 1994 and (ii) cases where the reliance is only upon executive instructions.
CASES GOVERNED BY EXECUTIVE INSTRUCTIONS:
33. As seen from the narration of facts, the lease in W.P.Nos.8931 and 8932 of 2008, was by the Tahsildar, in pursuance of a notification issued in the District Gazette. The lease in W.P.Nos.4817 and 5248 of 2009, is by the Assistant Director of Fisheries. Therefore, reliance is placed in these writ petitions, only on the executive instructions which prescribe 5 years as the period of lease. Hence the question to be considered is how far these executive instructions are enforceable in a Court of law at the instance of persons who have participated in the auction/tender.
34. Even at the outset, we have noted earlier that there is no unanimity of opinion among the executive instructions. While G.O.Ms.No.332, Animal Husbandry and Fisheries Department, dated 17.11.1993 stipulates in paragraph 4.i that all fishery leases should be for 5 years, the next order in G.O.Ms.No.33, Animal Husbandry and Fisheries Department, dated 27.2.1995 stipulates a period of 3 years under paragraph 4(ii). Therefore, prima facie, these instructions appear to be only directory and not mandatory in nature. These executive instructions are meant to guide the Subordinate Officers, in the discharge of their official duties. They do not confer a right upon persons like the writ petitioners.
35. In any event, the petitioners in all these writ petitions, participated in the tender/auction process and they became the successful bidders. Lease deeds were also executed in their favour by the competent authority. Thereafter, it is not open to them to contend that the condition relating to the period of lease, contained in the tender notification, is violative of the executive instructions. Since these executive instructions cannot be accorded the status of "law", the petitioners are bound to fail on the plea of estoppel.
36. In DCW Limited vs. The State of Tamil Nadu {AIR 2005 Mad 264}, the Division Bench of this Court held that once a contract had been granted for a specific period, then on the expiry of that period there is no question of automatic renewal of the grant (unless permitted by the deed of grant itself), and that there must be a fresh public auction/public tender, as otherwise
Article 14 of the Constitution will be violated, and a monopoly might be created. It was further held therein that G.O.No.1106 dated 13.6.1988, on which reliance was placed in that case (just as reliance on another Government Order is placed in these cases) not having been issued under any statutory provision, did not confer any right on the petitioner.
37. The grievance of the petitioners that there was a delay either in the holding of the auction or in the confirmation of lease or in the execution of the lease deed, will not be a ground to seek extension of the lease. Any delay on these counts, which had the effect of reducing the tenure of the lease from the one indicated in the tender/auction notification, may entitle the petitioners to seek extension upto a period proportionate to the shortfall. But it would not entitle them to have an extension of the period of lease beyond the period stipulated in the notification. Therefore, W.P.Nos.8931 and 8932 of 2008 and W.P.Nos.4817 and 5248 of 2009 are bound to fail.
CASE GOVERNED BY PANCHAYAT RULES:
38. W.P.No.5813 of 2008 relates to a water source vested in a Panchayat. Therefore, Rule 11 of the Tamil Nadu Panchayats (Lease and Licensing of Fishery Rights in Water Sources Vested and Regulated by Village Panchayats and Panchayat Union Councils) Rules, 1999, applies to the case of the petitioner herein. On a plain reading of Rule 11, it appears as though the Rule is mandatory, since it uses the word "shall" and stipulates that the lease of fishery rights shall be for 5 years.
39. Though a learned Judge opined in K.P.S.Elango's case, that the period stipulated in Rule 11 is only the maximum period and that the Rule is not mandatory, another learned Judge doubted the correctness of the said decision, in view of 3 decisions of the Supreme Court, to which, we shall now advert to.
40. In State of Rajasthan vs. M/s.Harishanker Rajendrapal {AIR 1966 SC 296}, the Supreme Court held in paragraphs 19 and 20 as follows:- "19. The next matter to be considered is the construction of R. 30 which reads:
"Period of lease - A mining lease may be granted for a period of 5 years unless the applicant himself desires a shorter period."
20. The word 'may' in the main provision of the rule must mean 'shall' and make the provision mandatory. This is obvious from the last portion of the provision. If the State Government had discretion to fix any period of the lease, the last portion of the provision would be redundant. The Government could fix the period of the lease at any period shorter than 5 years only when the applicant desires a shorter period. The period of the lease, therefore, can be shorter than five years only when the applicant desires and not when the Government desires. Government must fix the period of the lease at 5 years in the absence of any expression of desire by the applicant for taking the lease for a shorter period."
41. In V.Karnal Durai vs. District Collector, Tuticorin {1999 (1) SCC 475}, the Supreme Court held in paragraph-15 as follows:- "15. Learned counsel for the State, however, relied on the fact that the advertisement for lease was for a specific period, i.e., 1.4.1995 to 31.3.1998. According to him, the applicant was entitled to a lease, by orders of the Director dated 1.4.1997, only upto 31.3.1998 and if that period too had expired by now, no relief could be granted. In our opinion, the advertisement having been issued in order to implement these very Rules, the terms of the advertisement cannot be viewed in isolation. They have necessarily to be read in conjunction with the Rules."
42. In Beg Raj Singh vs. State of U.P. {2003 (1) SCC 726}, the Supreme Court held that when the initial lease was granted for one year instead of 3 years, the renewal granted so as to make it 3 years, was perfectly valid.
43. On the basis of the aforesaid three decisions of the Supreme Court, it was contended that a lease of fishery rights for a period lesser than the period prescribed under Rule 11, is contrary to law and that the tender/ auction notice and the contract resulting out of the same should be read, to be in conformity with the statutory prescription. It was also contended that when the Supreme Court interpreted even the word "may" to mean "shall", in relation to Rule 30 of the Mineral Concession Rules, the word "shall" appearing in Rule 11 of the Panchayat Rules, should be taken to be mandatory on the same analogy.
44. We have carefully considered the above contentions. In State of Rajasthan vs. Harishankar, the Supreme Court was considering the import of Rule 30 of the Mineral Concession Rules. The Rule contained a rider which gave an indication of the legislative intent. The rider under Rule 30 laid emphasis on the desire of an applicant to have a lease for a shorter duration. The Rule provided for a lease of 5 years "unless the applicant desired a shorter duration". Therefore the Supreme Court opined that the choice for having a lease of a lesser duration, was with the lessee and not with the Government. Rule 11 of the Panchayat Rules with which we are now dealing, do not confer any such choice upon the applicant/lessee. Therefore the ratio of the said decision may not apply to the case on hand.
45. In Karnal Durai case, the tender notification was for a period of 2 years, later modified to 3 years, with effect from 1.1.1995 to 31.3.1998. The application of the highest bidder, submitted on 23.2.1995, was rejected by the District Collector by an order dated 22.3.1995. But the statutory appeal was allowed on 1.4.1997 by the Director of Geology and Mines. By the time the appeal was allowed, a period of 2 years and 3 months out of a total period of 3 years and 3 months had already expired. Therefore the successful bidder came to Court on the ground that a full 3 year lease was not granted. The writ petition and the writ appeal were dismissed, distinguishing the decision in Hind Stone case. When the successful bidder reached the Supreme Court, it was argued on behalf of the State that the relationship of parties is governed by the terms of the advertisement and that if the period of lease specified in the advertisement expires during the pendency of proceedings, no relief could be granted. It is in that context that the Supreme Court held in paragraph-15 of its decision that the advertisement for auction cannot be viewed in isolation and that it has to be read in conjunction with the Rules. In other words, there was no conflict between the statutory rules and the advertisement, in Karnal Durai case, except that there was an amendment issued after the advertisement, altering the date from which a lease would come into operation. Moreover, in Hind Stone case, the Supreme Court had held that an application for the grant of lease of minerals should be disposed of on the basis of the Rules in force at the time of disposal of the application and not on the basis of the Rules prevailing at the time when the application was made. Therefore the Supreme Court took a view in Karnal Durai case, which was in conformity with the view expressed in Hind Stone. In other words, the Supreme Court merely applied the amended rule to an application pending on the date of issue of the amendment. The Supreme Court was not considered with a case, where one of the terms of the notification was not in comity with the statutory rule. Therefore the decision in Karnal Durai, will not go to the rescue of the writ petitioner.
46. In Beg Raj Singh case, a lease was granted for one year. The Collector himself extended the lease for 2 more years on the ground that even the original grant ought to have been for a minimum period of 3 years. But the State Government set aside the decision of the Collector on an application of a third party and that decision became the subject matter of challenge. The High Court found the action of the Collector in granting extension, to be justified, but did not grant relief on the ground that a fresh auction may serve public good and that in any event, the period of 3 years had also lapsed. But the Supreme Court reversed the decision on the ground that the rights of the parties to relief would have to be determined by reference to the date on which the party entered the portals of the Court. Even this decision is not on the question as to whether an auction notification could be for a period lesser than the one prescribed by statutory rules.
47. Thus, in effect, none of the above decisions of the Supreme Court are directly on the point as to whether a period of lease stipulated in an auction notification, could differ from the one prescribed in the statutory rules. Therefore we may have to deal with the issue, from the point of view of the power of the Panchayats, the legislative intent and the rules of interpretation.
48. As we have seen earlier, Rule 11 uses the expression "shall", while prescribing the period for which a lease of fishery rights could be granted. Therefore it is to be seen if the Rule is mandatory and inviolable.
49. In State of Punjab vs. Shamlal Murari {1976 (1) SCC 719}, the Supreme Court pointed out that the word "shall" (a word of slippery semantics) in a rule is not decisive and the context of the statute, the purpose of the prescription, the public injury in the event of neglect of the rule and the conspectus of circumstances bearing on the importance of the condition, have all to be considered before condemning a violation as fatal.
50. In a catena of decisions, the Supreme Court held that the use of the word "shall" in a statute does not always indicate that the provisions are mandatory in character. In Ammal Chandra Dutt vs. Second Additional District Judge {1989 (1) SCC 1}, the Supreme Court held that where the situation and the context warrants it, the word "shall" used in a section or rule of a statute has to be construed as "may". Again in Rubber House vs. Excelsior Needle Industries Pvt Ltd {1989 (2) SCC 413}, the Supreme Court pointed out that though the word in its ordinary import is obligatory, it need not be given the same connotation, but can be interpreted as directory.
51. In the case on hand, the Rules issued under the Tamil Nadu Panchayats Act, regulating the grant of lease of fishery rights, does not indicate the consequences of the failure to make the period of lease as 5 years. In other words, neither Rule 11 nor any other Rule, makes a lease for a period lesser than 5 years, void or voidable. The absence of a stipulation with regard to the consequences of a violation of Rule 11, is an indication that the Rule is only directory and not mandatory. Once it is concluded that the Rule is only directory and not mandatory, the participation of the petitioner in the auction in pursuance of the notification, would bind him to the terms and conditions of the tender notification and would operate as estoppel.
52. Another indication that Rule 11 may not be mandatory, could be found in the entire scheme of those 1999 Rules. As the very title of these Rules indicates, they are intended to cover both lease and licences of fishery rights. But the words 'lease' and 'licence' are not defined either in the Act or in the Rules. Rules 6 to 10 of these Rules, deal with (i) production of the licence on demand to the executive authority (ii) prohibition on transfer of the licence, except in favour of the legal heirs in the case of death or incapacity of the licensee (iii) the issue of duplicate licence (iv) the terms and conditions of licence as per Appendix-II and (v) the power of cancellation of licence. These Rules 6 to 10 do not use the word "lease". But Rule 11 deals with the lease of fishery rights and the word "licence" is not used in Rule 11. Rule 14 speaks about termination of lease, in the event of the failure of the lessee to remit the balance of the bid amount within 7 days of confirmation of the auction. This Rule also does not refer to the word "licence". In the light of the language employed throughout these Rules, if we have a look at Rule 2, it prescribes that no person shall take fish from the water sources vested with the Panchayat, except under a lease or licence, granted by the competent authority "with such conditions as may be specified in the lease or licence, as the case may be, which may be suitably modified or amended from time to time". The second limb of Rule 2 indicates that the authority competent to grant the lease or licence, is also empowered to prescribe the conditions therefor and that those conditions may also be suitably modified or amended from time to time. Thus a power is vested with the village panchayat not only to prescribe conditions for the grant of lease or licence, but also to modify or amend those conditions suitably from time to time. Therefore the prescription of the period of lease under Rule 11 is actually subject to the broad powers conferred upon the panchayat under Rule 2. In other words, Rule 11 would not control or abridge the powers conferred upon the panchayat under Rule 2.
53. Interestingly, the Government had also issued a separate set of Rules known as "The Tamil Nadu Panchayats (Procedure for Conducting Public Auction of Leases and Sales in Panchayats) Rules, 2001, under G.O.Ms.No.277, Rural Development (C4), dated 22.11.2001, governing the procedure for conduct of public auction of leases and sales of the properties of the panchayats. Obviously these Rules are later in point of time to the above mentioned Rules of 1999 relating to lease and licensing of fishery rights. These Rules of 2001 also cover the lease of fishery rights, as can be seen from Rule 3 which empowers the panchayat to lease out or sell "the right to enjoyment of properties of a panchayat". The list of items that could be leased out are mentioned in Sub Rule (2) of Rule 3. But that Sub Rule is only indicative and not exhaustive. In any case, the list includes the lease of immovable properties. The right to catch fish has already been held by the Supreme Court to be a right arising out of an immovable property. In Bihar Eastern Ganjetic Fishermen Cooperative Society Ltd vs. Sipahi Singh {1977 (4) SCC 145}, the Supreme Court held that "the right to catch and carry away the fish being a 'profit a prendre' that is a profit or benefit arising out of land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act read in the light of Section 3(26) of the General Clauses Act." Therefore, the lease of fishery rights is also subject to these Rules of 2001. The proviso to Rule 4 of these Rules states that no lease of immovable property shall be valid if the period of lease exceeds 3 years or where the lessee is permitted to put up any building or structure, unless the sanction of the Inspector had been obtained therefor. Therefore this Rule is to be construed in harmony with Rule 11 of 1999 Rules. Moreover, Rule 11 of these 2001 Rules contains a Table prescribing the maximum lease period, in respect of each item of property that a panchayat may lease out. The Table contains just two columns viz., (i) nature of property and (ii) maximum lease period at a time. Item No.9 in the said table relates to "right to enjoy fishery rights in water sources under the control of the panchayat". Against this item No.9, the Table indicates "5 years", as the maximum period of lease. Since the very caption under the Table reads as "maximum lease period at a time", the period of 5 years indicated against item No.9, is only the maximum period.
54. It is pertinent to note that these 2001 Rules are not only later in point of time but they also take note of 1999 Rules. In the Table under Rule 11 of the 2001 Rules, there is a reference to the 1999 Rules which deal with the lease and licensing of fishery rights in panchayats. This reference is found under item No.9 of the said Table. Therefore, it is clear that the legislative intent in prescribing a period of 5 years under Rule 11 of 1999 Rules, was to make it only the maximum period for which a lease could be granted. If the intention under 1999 Rules was to prescribe 5 years as fixed and unalterable, there was no necessity to include this as item No.9 under the Table under Rule 11 of 2001 Rules and to indicate 5 years as the maximum lease period at a time.
55. Therefore, for all the above reasons, we answer the reference as follows:-
(i) Rule 11 of the Tamil Nadu Panchayat (Lease and Licensing of Fishery Rights in Water Sources Vested and Regulated by Village Panchayats and Panchayat Union Councils) Rules, 1999, prescribing a lease period of 5 years, is not mandatory, but only directory. It is only the maximum period for which a lease or licence of fishery rights could be granted at a time.
(ii) The view taken by A.Kulasekaran, J., in K.P.S.Elango's case lays down the correct proposition of law.
56. Now coming to the individual cases, we find that in W.P.No.5813 of 2008, the period of lease indicated in the notification was 1.7.2007 to 30.6.2008. But the auction notice itself was issued only on 29.12.2007 and the auction was confirmed only by an order dated 9.5.2008, leaving hardly a period of less than 2 months. Though the writ petitioner may not be entitled to the renewal of the lease for a period of 5 years, in view of the interpretation that we have given to Rule 11, the writ petitioner should at least be granted an extension of the lease for such period as would enable him to enjoy the fruits of the lease for one full year as per the notification, since he has already paid the entire lease amount. Accordingly, W.P.No.5813 of 2008 is disposed of, directing the respondents to extend the lease in favour of the petitioner for such period, which, together with the period that he has already enjoyed, would make up one full year as per the auction notice. There will be no order as to costs.
57. In so far as W.P.Nos.8931 and 8932 of 2008 are concerned, the period of lease was from 1.11.2007 to 31.10.2008. It is claimed by the petitioner that the lease deed was executed only on 22.5.2008, leaving only a period of just a little over 5 months. However the second respondent has filed a counter affidavit contending that the confirmation order was issued on 28.11.2007. Therefore, we do not know whether the tanks were handed over to the petitioner on 28.11.2007 or 22.5.2008. If the tanks had been handed over to the petitioner on 28.11.2007, the writ petitions are liable to be dismissed. If the tanks were only handed over on 22.5.2008, irrespective of whose fault it was, the petitioner should be granted an extension for such period as would make the total period of enjoyment of the right as one year. Therefore these two writ petitions are also disposed of, directing the respondents therein to find out if the possession of the tank was handed over on 28.11.2007 or 22.5.2008. If it had been handed over only on 22.5.2008, the respondent shall renew the lease for such period, which, together with the period that he has already enjoyed, would make up one full year as per the auction notice. There will be no order as to costs.
58. The petitioner in W.P.Nos.4817 and 5248 of 2009 participated in the tender for the grant of fishery rights for 3 years upto June 2009. The tender notification itself was dated 25.10.2006 and the petitioner has stated that the Kanmoi was handed over on 14.11.2006, the date on which he deposited the entire bid amount. In the tender notification, issued on 25.10.2006, the period of lease was mentioned only as 2006-2007 to 2008-2009 (June 2009). Therefore the petitioner hardly lost a few days from 25.10.2006 to 14.11.2006. This loss has already been more than compensated, by the interim orders passed by us on 25.6.2009, which has remained in force till date. Therefore the petitioner in these two writ petitions may not be entitled to any benefit. Hence these two writ petitions are dismissed. No costs. Consequently connected miscellaneous petitions are also dismissed.
Svn To
1.The Assistant Director of Panchayat, Tirunelveli District.
2.The Commissioner/The Block Development Officer, Keelapavoor Panchayat Union, Keelapavoor-Pavoorsathiram, Tenkasi Taluk, Tirunelveli District.
3.The District Collector, Thoothukudi.
4.The Tahsildar, Sattankulam Taluk, Sattankulam, Thoothukudi.
5.The Commissioner, Sattankulam Panchayat Union, Sattankulam, Thoothukudi District.
6.The Director of Fisheries, DMS Teynampet, Chennai - 600 006.
7.The Assistant Director of Fisheries, (Inland Fisheries), Patchiamman Padithurai, Madurai - 625 001.