HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.3712 of 2014 Date: 29-04-2014 Between:
The Mallam Grampanchayat, represented by its Sarpanch, Mallam village, Chittamuru Mandal, SPSR Nellore District, .. Petitioner AND The Government of Andhra Pradesh, represented by its Principal Secretary, Animal Husbandry Dairy Development and Fisheries Department, Secretariat, Hyderabad and 7 others .. Respondents HON’BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.3712 of 2014 ORDER:
This writ petition is filed for a mandamus declaring the proceedings No.2/A/2014, dated 28-01-2014 issued by the 6th respondent granting leasehold rights in favour of 8th respondent to catch fish in the P.W.D. tank situated in Mallam Grampanchayat for the 1423 Fasli as ultra vires, illegal and arbitrary.
2. The grievance of the petitioner is that P.W.D. tank is situated in Survey No.318 in an extent of Ac.932.93 cents of Mallam village and previously the petitioner-Grampanchayat used to lease out the fishing rights in the said tank by conducting open auction. It is stated that the 6th respondent issued impugned proceedings No.2/A/2014, dated 28-01-2014 granting lease of fishing right in favour of 8th respondent society for the 1423 fasli for an amount of Rs.2,310/- only, which is being challenged in the writ petition on the ground that the 8th respondent society is not a genuine society and the same is not registered in consonance with the guidelines issued vide G.O.Ms.No.74, Animal Husbandry, Dairy Development and Fisheries (F.II) Department, dated 21-09-2011 and no skill test was conducted as per the said G.O. It is also stated that through the impugned proceedings, the leasehold rights of the huge extent tank is granted in favour of the 8th respondent for meagre amount of Rs.2,310/- only and the respondent authorities did not follow the procedure prescribed for fixing the price and granted for a meagre amount by colluding with the persons who were behind the 8th respondent. It is further stated that from times immemorial, the said tank is being leased out by the petitioner Gram Panchayat for fishing rights and that there are about 400 persons belong to S.T. category in Mallam village whereas the 8th respondent society is constituted only with 64 members and the other persons belong to S.T. category protested for granting lease in favour of the members of the 8th respondent society. On 21-01- 2014 the 8th respondent society passed anonymous resolution in the presence of 7th respondent and other officials, resolving not to take PWD tank on lease, but the 6th respondent, without there being any authority or power, granted fishing rights to the 8th respondent and that as per the procedure laid down in G.O.Ms.No.776, Food and Agricultural (Fish.II) Department, dated 31-12-1990, in the absence of genuine Fishermen Cooperative Societies or unwillingness on the part of the identified Fishermen Cooperative Society to take up exploitation at the rental fixed, next preference should be given to the Grampanchayat/ Municipality followed by public auction and departmental exploitation. It is also stated that the PWD tank situated in Mallam village is vested with the Grampanchayat and is being managed by the petitioner Grampanchayat and the Fisheries Department does not have any role in leasing out the fishing rights in the said tank. Aggrieved by the action of the respondent authorities in leasing out the fishing rights in the said tank in favour of the 8th respondent, the present writ petition is filed.
3. The 6th respondent filed counter stating that the 8th respondent society was registered with 64 members under the provisions of A.P. Cooperative Societies Act, 1964 as per the guidelines issued vide G.O.Ms.No.74, Animal Husbandry and Dairy Development and Fisheries Department, dated 21-09-2011 with registration No.F.G.30, dated 04-06-2013 and that all the fishermen belong to Yanadi (ST) Community and they are bonafide fishermen as per G.O.Ms.No.98, dated 22-01-1964. It is stated that Mallam PWD tank is a minor irrigation tank under control of Irrigation Department and the disposal of fishing rights vested with Fisheries Department as per G.O.Ms.No.22, dated 27-02-2003. The fishing lease was granted by the 6th respondent on the basis of guidelines issued under G.O.Ms.No.776, dated 31-12-1990. Fixation of lease amount for leasing out Mallam tank was done in the year 2008 vide G.O.Rt.No.329 Animal Husbandry and Dairy Development Authority and Fisheries (F.II) Department, dated 30-06-2008 for an amount of Rs.2,100/- for a period of five years and that recently, the Government has enhanced the lease amount by 10% of previous rentals i.e. an amount of Rs.2,310/- vide G.O.Rt.No.396, dated 13- 09-2013 and accordingly, the lease of fishing rights of Mallam PWD tank was granted to the 8th respondent for an amount of Rs.2,310/- vide proceedings dated 28-01-2014. It is also stated that the lease of fishing rights of Mallam PWD tank was issued to Mallam Gram Panchayat during 2011-2012 i.e. fasli 1421 for an amount of Rs.2,100/- as there is no Fishermen Cooperative Society existing in Mallam village at that time and that the Managing Committee of the 8th respondent resolved not to take the lease rights of Mallam PWD tank on lease for fasli 1423 on 21-01-2014. It is further stated that the General Body resolved on 27-01-2014 at RDO Office, Gudur to take the lease of fishing rights of Mallam PWD tank for an amount of Rs.2,310/- for fasli 1423 and that as the General Body is supreme than the Managing Committee for taking decision regarding the society activities, the lease of fishing rights was issued vide proceedings dated 28-01-2014 to the 8th respondent as per the request made by the general body of the 8th respondent. It is further stated that Mallam PWD tank has 186 Hcs. of effective water spread area which is sufficient to enrol 186 members at 1 person 1 hectare and that if any eligible person is available for admission into society the Department is ready to take action to admit eligible member as per G.O.Ms.No.74, dated 21-09-2011. The Department has issued fishing permit with a condition that it is not to bail out the water from the tank and also not breach bunds while catching the fish and not bail out water of the tank while fishing and sought for dismissal of the writ petition.
4. The 8th respondent filed counter stating that the 8th respondent herein is a society registered under the provisions of the A.P. Cooperative Societies Act, 1964 and was registered on 04- 06-2013 with the sole objective being the occupation of fishing. The 8th respondent was granted fishing rights in the PWD tank situated in Mallam Gram Panchayat for a sum of Rs.2,100/- on 08-06-2013 for fasli 1422 by the 6th respondent vide proceedings dated 08-06-
2013 and that after completion of 1422 fasli, the 6th respondent granted fishing lease to the 8th respondent for fasli 1423 in PWD tank situated in Mallam Gram Panchayat for a sum of Rs.2,130/- on 28-01-2014 and the lease amount for the said fasli was increased by 10% basing on G.O.Rt.No.396, dated 13-09-2013. It is also stated that the lease of fishing rights has been granted by the 6th respondent in favour of this respondent on the basis of guidelines issued under G.O.Ms.No.776, dated 31-12-1990. It is denied that the members of the 8th respondent do not belong to the Fishermen Community and are not engaged in fishing activity. It is stated that this respondent paid an amount of Rs.2,310/- for obtaining fishing rights in the PWD tank and that on 26-01-2007 fishing rights were granted to the Gram Panchayat of the said village by the 6th respondent for a sum of Rs.1,875/-. It is denied by this respondent that it is not a genuine and bonafide society and stated that the skill test was conducted by the Fisheries Department before granting fishing rights to the 8th respondent and the 8th respondent obtained No Objection Certificate from the Gram Panchayat for establishment of the Tribal Fisheries Cooperative Society at Mallam Gram Panchayat and thereafter the Gram Panchayat itself declared information about establishment of the said Fisheries Cooperative Society at Mallam village. It is also stated that the Gram Panchayat accepted proportionate lease amount from the answering respondent when it made payment for 1422 fasli through D.D.No.645073, dated 08-06-2013 in terms of G.O.Ms.No.22 and that having accepted the lease amount from the answering respondent, it is not open to the petitioner to turn around and plead that the answering respondent is not a genuine society. It is further stated that at the behest of Sarpanch of the Gram Panchayat and by coercion, a resolution was passed on 21-01-2014 by the Managing Committee of the answering respondent resolving not to take the PWD tank on lease and that as the said resolution was passed under coercion by the answering respondent, another resolution was passed by the general body of the answering respondent on 27-01-2014 resolving that the earlier resolution passed was invalid. It is further stated that the subject PWD tank is above 200 acres and any tank above 200 acres would classify as a major irrigation tank and the right to grant licence of the fishing rights in the major irrigation tank vests with the Fisheries Department. It is further stated that due to status quo granted by this court on 11-02-2014, this respondent is unable to carry on fishing activity in the said tank and the members of the answering respondent are poor persons, reeling under abject poverty and indigent circumstances, who solely rely on fishing activities to eke out their livelihood and unless and until the interim order dated 11- 02-2014 is vacated, this respondent would not be able to undertake fishing activity in the said PWD tank. Hence, the 8th respondent sought for dismissal of the writ petition.
5. The petitioner filed reply affidavit to the counter affidavit of the 8th respondent stating that during the course of registration certificate, the 6th respondent did not follow the procedure and the same does not have any sanctity in the eye of law. It is stated that the official respondents did not follow the procedure contemplated under G.O.Ms.No.776, dated 31-12-1990 as the 8th respondent is not a genuine society and the Managing Committee of the of the 8th respondent resolved not to obtain fishing tanks for the fasli 1423 and in the absence of Genuine Fishermen Cooperative Society next preference should be given to the Gram Panchayat. It is further stated that as per the procedure contemplated under G.O.Ms.No.74, Animal Husbandry, Dairy Development and Fisheries (F.II) Department, dated 21-09-2011, the entire process of conducting skill test shall be video-graphed in the presence of observer, but the same was not so done. It is also stated that no Grama Sabha was conducted at that time and the Special Officer does not have any power to issue such a no objection certificate without intimation to the villagers.
6. Heard the learned counsel for the parties, who reiterated the respective contentions in the writ petition and the counter affidavits of the 6th and 8th respondents.
7. In the instant case, this court granted status quo on 11-02- 2014, which is extended from time to time. This Court on 19-03- 2014, passed an order observing that since there is a controversy about the resolution dated 27-01-2014 passed by the 8th respondent society as to whether the members of the 8th respondent society have signed on the same or not, the 6th respondent was directed to hold a meeting of the 8th respondent society and find out whether the society is willing to take the said Mallam PWD tank, Mallam village for lease or not and submit a report within ten days from the date of receipt of the order. In pursuance of the said order, the 6th respondent filed an affidavit on 07-04-2014 stating that a notice was issued to the Managing Committee of Mallam Fishermen Cooperative Society pursuant to which the Managing Committee issued notice dated 27-03-2014 to all the members of the Fishermen Cooperative Society informing to attend the General Body Meeting to be held on 04-04-2014 and that a General Body Meeting was held on 04-04-2014 in which out of 64 members, 47 members attended the meeting and resolved to take up Mallam tank on lease for the year 1423 fasli. In view of the said circumstances, the contention of the petitioner that the 8th respondent is not willing to take up Mallam tank on lease and as per G.O.Ms.No.776, dated 31-12-1990, in the absence of genuine Fishermen Cooperative Societies or unwillingness on the part of the identified Fishermen Cooperative Society to take up exploitation at the rental fixed, next preference should be given to the petitioner Gram Panchayat/Municipality for leasing out the fishing tank has no legs to stand. The other aspect, which is seriously canvassed by the learned counsel for the petitioner and asserted in the writ petition is that the 8th respondent society is not a registered society as per the procedure envisaged under G.O.Ms.No.74, dated 21-09- 2011 and a skill test is also not properly conducted. The other ground, which is seriously canvassed by the learned counsel for the petitioner, is that the lease amount fixed is paltry amount and the same is not fixed in consonance with the relevant rules. The 6th respondent as well as the 8th respondent filed counter affidavits stating that for the earlier year i.e. 2011-2012 lease was granted in favour of the petitioner Gram Panchayat for a sum of Rs.2,100/- and also for the fasli 1423 the same was granted enhancing the lease amount at 10% of previous rentals i.e. Rs.2,310/- as per G.O.Ms.No.396, dated 13-09-2013. In view of the same, since the lease was granted to the petitioner Gram Panchayat for the year 2011-2012 for an amount of Rs.2,100/- and the same was enhanced by 10% of the previous rentals, which comes to Rs.2,310/-, the petitioner has not made out any ground as to how the fixation of the rental is erroneous and the petitioner has not brought to my notice any rule or regulation in this respect. The petitioner has questioned the impugned proceedings dated 28-01-2014 issued by the 6th respondent without challenging the registration of the 8th respondent society except saying that the 8th respondent society is not registered as per G.O.Ms.No.74, dated 21-09-2011. When once the petitioner has not questioned the registration of the 8th respondent society, the challenge to the proceedings of the 6th respondent granting lease in favour of the 8th respondent is unsustainable since the 8th respondent society is a registered society. It is to be noted that as per G.O.Ms.No.776, dated 31-12- 1990, first preference is to be given to the societies and in the absence of registered societies, the allotment should be given in favour of Gram Panchayats. Since the registered society has also passed a resolution willing to take up the lease, the petitioner Gram Panchayat is not entitled to have the fishing rights granted in preference to the 8th respondent society.
8. In view of the above facts and circumstances, the writ petition is bereft of any merit and the same is liable to be dismissed.
9. Accordingly, the writ petition is dismissed. However, it is open for the petitioner Gram Panchayat to challenge the registration of the 8th respondent society, if it is otherwise entitled to do so in accordance with law. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
A. RAJASHEKER REDDY, J Date: 29-04-2014 Ksn