IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF FEBRUARY, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.16369/2016 (GM-RES) BETWEEN:
MEENUGAARARA SAHAKARA SANGHA NIYAMITHA MALLAGHATTA TURUVEKERE TALUK TUMKUR DIST-572 101 REP. BY ITS SECRETARY MR.G.N. CHANDRASHEKAR S/O LATE SRI NANJUNDAPPA AGED ABOUT 53 YEARS (BY SRI. M C JAYAKIRTHI, ADV. (NOC)) AND:
1. GOVERNMENT OF KARNATAKA DEPARTMENT OF ANIMAL HUSBANDRY & FISHERIES REP. BY ITS SECRETARY VIDHANA SOUDHA BENGALURU-560 001 2. DIRECTOR OF FISHERIES 3RD FLOOR, PODIUM BLOCK VISWESHWARAIAH CENTRE DR.B.R.AMBEDKAR VEEDHI BENGALURU-560 001 3. UNDER SECRETARY TO GOVERNMENT OF KARNATAKA DEPARTMENT OF ANIMAL HUSBANDRY & FISHERIES VIDHANA SOUDHA BENGALURU-560 001 ... PETITIONER 4. DEPTUTY COMMISSIONER TUMKUR DISTRICT TUMKUR-572 101 5. ASSISTANT DIRECTOR OF FISHERIES CADRE-II TURUVEKERE TALUK TURUVEKERE-572 221 ... RESPONDENTS (BY SRI. R B SATYANARAYANA SINGH, AGA. FOR R1-5) THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO QUASH THE IMPUGNED ORDER DTD:29.2.2016 VIDE ANNEXURE-Q PASSED BY THE R-2 DIRECTOR OF FISHERISE VIDE LETTER BASED ON THE RECOMMENDATION MADE BY THE R-3 ON BEHALF OF THE R-1 VIDE DTD:31.12.2015 VIDE ANNEXURE-M AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R The petitioner is before this Court assailing the order dated 29.02.2016 at Annexure-Q to the petition. The petitioner is also seeking issue of mandamus to direct respondents No. 2 and 5 to renew the licence of the petitioner with immediate effect.
2. The petitioner is a Society registered under the Societies Act constituted for the benefit of the fishing community in and around the Gram Panchayat area of Mallaghatta. The Government through the notification dated 21.02.2014 had brought all the internal water resources under the fishing policy for such activities to be carried out. Mallaghatta Tank being one such Tank, the process was held for granting the fishing lease. The period for which the fishing lease was proposed is from 01.07.2014 to 30.06.2019. In the said process, the petitioner being successful tenderer, the fishing right had been granted in favour of the petitioner. While the petitioner is stated to have invested amounts and having purchased the fishlings and is rearing the same, respondent No.2 through the order dated 29.02.2016 has cancelled the fishing lease which had been granted in favour of the petitioner. It is in that light, the petitioner is before this Court assailing the same and alleging that the action is not only contrary to law, but is also a mala fide action taken at the instance of certain persons who are inimical to the activities of the petitioner.
3. The proposed respondents viz., the applicants in I.A.No.2/2016 who are stated to be the fishermen in the area have filed their objection statement and have opposed the instant petition. As per the objection statement filed, it is contended that the activities of the petitioner has led to polluting the water in Mallaghatta Tank which is used for drinking purpose and as such, since the Karnataka Pollution Board has indicated that the quality of the water has deteriorated, the action taken is justified.
4. The official respondents to the petition have also filed their objection statement to the same effect and in that view, have sought to justify the order impugned at Annexure-Q to the petition. In that light, it is contended that since the reply issued by the petitioner to the notice was not satisfactory, the action has been taken to cancel the fishing lease.
5. In the light of the rival pleadings, I have heard the learned counsel for the parties. Insofar as the Mallaghatta Tank which is in issue being included under the fishing policy and thereafter the fishing right being considered and granted after following the tender process, there is no dispute. Presently the termination of fishing lease has been done through the impugned order dated 29.02.2016 on the ground that the water in the said tank is used for drinking purpose, but due to the activities of the petitioner, the same has caused pollution and therefore the lease is to be terminated.
6. A perusal of the petition papers would disclose that a notice had been issued to the petitioner on 08.01.2016. The petitioner had replied to the same on 20.01.2016 disputing the claim put forth in the notice.
As against the allegation that the water is deteriorated because of use of chemicals by the petitioner, the petitioner has disputed the same and has also contended that there is absolutely no material whatsoever to indicate that the petitioner has purchased such chemicals. Except for noting the reply of the petitioner, there is no other material that has been relied on by the respondents to arrive at that conclusion that in view of the Certificate issued by Karnataka Pollution Control Board with regard to quality of the water and the report furnished by the Office of the Deputy Commissioner with regard to the spot inspection, the respondents are to take a decision to cancel fishing lease granted in favour of the petitioner as a policy decision or after due enquiry on providing opportunity.
7. Hence, when at the first instance the Tank is brought under the fishing policy and thereafter as per the procedure the consideration is made for granting the fishing lease, it is not open for the respondents themselves to come to the unilateral conclusion that the lease is to be terminated without actually establishing that the petitioner’s activities is what is causing water pollution which is not possible as the tank water is being used for drinking purpose. Such unilateral decision could not have been taken. In the reply as put forth by the petitioner, the petitioner has also indicated that even in respect of the other Tanks situate in the same vicinity, the quality of water has been indicated as “D” Grade and as such, the Tank in question alone cannot be singled out.
8. Hence, these are aspects of the matter which ought to be taken into consideration by the respondents, more particularly in a circumstance if the respondents are of the opinion that the Tank is being used for drinking water purpose and therefore the fishing activity would cause pollution, a policy decision is required to be taken to exclude the Tank from the fishing policy and only in such circumstance, the denial of fishing right could be made after providing an appropriate opportunity to the petitioner.
9. Since at present no such decision has been taken, but the action against the petitioner has emanated only due to certain complaints said to have been made by the people residing in that area and their representatives, the action of the present nature to the detriment of the petitioner would not be justified.
10. Hence, the order impugned dated 29.02.2016 being not sustainable is quashed. The respondents are directed to receive the renewal fee and renew the fishing licence as per the original order that had been granted to the petitioner. However if any further action is required, in the manner as has been indicated above, the same shall only be taken after a policy decision being taken or further additional materials being available in this regard and the same being confronted to the petitioner by issue of an appropriate show cause notice to enable the petitioner to suitably reply the same and thereafter take action in accordance with law.
In terms of the above, the petition as also the pending applications stand disposed of.
Sd/- JUDGE hrp/bms