IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO. 34447 OF 2018 (GM-RES) BETWEEN:
OLANADU JALASHAYA HAGU MEENU ABHIVRUDDHI SAHAKARA SANGA NIYAMITHA HAVING ITS REGISTERED OFFICE AT NO.1881/A SHOP NO.2, WESLEY ROAD MANDI MOHALLA MYSORE – 577001 REP. BY ITS SECRETARY A.V. SIVARAM.
... PETITIONER (BY SRI B. K. MANJUNATH – ADVOCATE ) AND:
1. THE STATE OF KARNATAKA DEPARTMENT OF FISHERIES AND ANIMAL HUSBANDRY VIKASA SOUDHA DR. B.R. AMBEDKAR VEEDHI BANGALORE – 560 001 REP. BY ITS SECRETARY.
2. THE DEPUTY DIRECTOR OF FISHERIES MYSORE RANGE, KUVEMPU NAGARA MYSORE – 577 023.
3. THE SENIOR ASSISTANT DIRECTOR OF FISHERIES, ZILLAPANCHAYATH MANDYA – 571401.
4. THE ASSISTANT DIRECTOR OF FISHERIES GR-II SRIRANGAPATNA MANDYA DISTRICT – 571401.
5. ARAKERE MEENUGARARA SAHAKARA SANGHA NIYAMITHA HAVING ITS REGISTERED OFFICE AT ARAKERE VILLAGE SRIRANGAPATNA TALUK MANDYA DISTRICT-571401 REP. BY ITS SECRETARY.
... RESPONDENTS (BY SMT. PRATHIMA HONNAPURA, AGA FOR R-1, 2 AND R-4;
SRI J. ARAVIND BABU – ADVOCATE FOR R-5; R-3 SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE 3RD RESPONDENT THE SENIOR ASSISTANT DIRECTOR OF FISHERIES ZILLA PANCHAYATH MANDYA IN CASE NO. HAGUPA/13/2018-19 DATED 29.06.2018 VIDE ANNEXURE-M GRANTING LEASE IN FAVOUR OF THE 5TH RESPONDENT; ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Shri B.K. Manjunath, learned counsel for the petitioner.
Smt. Prathima Honnapura, Addl. Government Advocate for Respondents 1, 2 and 4.
Shri J. Aravind Babu, learned counsel for Caveator / Respondent No.5.
2. Petition is admitted for hearing. With consent of the parties, the same is heard finally.
3. In this petition under Articles 226 & 227 of the Constitution of India, the petitioner interalia has assailed the validity of the order passed by the Senior Assistant Director of Fisheries, Zilla Panchayath, Mandya, dated 29.06.2018 by which lease in respect of fishing rights has been granted in favour of Respondent No.5.
Facts giving rise to filing of the writ petition briefly stated are that the petitioner is a Fishermen’s Co- operative Society which operates on a District level whereas, Respondent No.5 is a Co-operative Society which operates on a Hobli level. A notification dated 16.05.2018 was issued by Respondent No.4 by which applications were invited for grant of fishing lease in Arakere Tank for a period of five years, that is, from 1.7.2018 to 30.06.2023. The petitioner filed an application for grant of fishing lease on 30.05.2018 before Respondent No.4 after fulfilling all the formalities along with a ‘No due certificate’. The Respondent No.5 also filed an application on 16.05.2018 for grant of lease for fishing rights. It is averred in the writ petition that in Column-8, the Respondent No.5 – Society stated that any amount is not due and payable by it to the State Government. However, along with the application, Respondent No.5 did not furnish any ‘No due certificate’. It is the case of the petitioner that in view of the Government order dated 21.02.2014, in case any Society is a defaulter, the same is not eligible for grant of lease. It is the case of the petitioner that fifth respondent on the date of consideration of the application, had to pay a sum of Rs.1,49,991/- to the State Government. However, by impugned order dated 29.06.2018, the lease has been granted in respect of the fishing rights in favour of Respondent No.5 for a period of five years. In the aforesaid factual background, the petitioner has approached this court.
4. Learned counsel for the petitioner submitted that Respondent No.3 ought to have appreciated that along with the application, Respondent No.5 had not furnished ‘No due certificate’ and therefore as per the Government order, Respondent No.5 was not eligible for grant of lease of fishing rights. It is further submitted that while deciding the applications submitted by the petitioner as well as Respondent No.5, the application filed by the petitioner has not at all been considered. It is also submitted that notwithstanding the availability of an alternative remedy, this court in exercise of powers under Article 226 of the Constitution of India, can entertain a writ petition. In support of the aforesaid submissions, reference has been made to decisions of the Supreme Court in RAM AND SHYAM COMPANY vs. STATE OF HARYANA AND OTHERS ((1985) 3 SCC 267)) and in the case of ABL INTERNATIONAL LTD AND ANR vs. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD AND OTHERS (2004 (3) SCC 553).
5. On the other hand, learned Additional Government Advocate has submitted that the petitioner has the remedy of filing an appeal against the impugned order to the Deputy Director as provided in the Government order. It is also submitted that fifth respondent – Society operates at Hobli level and under the policy of the State Government, the Societies operating at Hobli level have to be given preference in the matter of allotment of lease for fishing rights. It is also submitted that before the last date of submission of the application, the State Government by an order dated 29.05.2018 had waived all the loans. Therefore, the Respondent No.5 was not in arrears of any amount due and payable to the State Government. Learned counsel for Respondent No.5 has submitted that as per the Government policy, it is entitled to preference for grant of lease in respect of fishing rights. It is also submitted that the petitioner has an alternative and efficacious remedy.
6. I have considered the submissions made on both sides and perused the record. The relevant extract of the impugned order dated 29.06.2018 reads as under:
“The Assistant Director of Fisheries (Grade 2) Sreerangapatna has given the report that the Arakere fisheries co-operative society is registered on 29/09/1977 as per Bye-Law, the said Tank comes within the limits Arakere fisheries co-operative society. Already the said Sangha has obtained the lease of Tadagavaadi water tank (water area 28.00 hectare) and Gende Hosahalli Tank (water area 12.00 hectare) newly, praying to lease the Arakere tank’s water area is 95 hectares, these all 3-tank water area comes 135 hectare, if the lease be given to this society this society’s 80% of fishermen are dependent only fisheries and then the society can perform good work and get profit by improving its economic condition thereby help the members of society.”
Thus, from perusal of the relevant extract of the impugned order, it is axiomatic that the application submitted by the petitioner has not been considered by the Senior Assistant Director and the Senior Assistant Director has also not considered the factum of waiver of loan. In other words, the impugned order suffers from the vice of non-application of mind and has been passed in a perfunctory manner. The impugned order is therefore quashed and set-aside and the matter is remitted to the Senior Assistant Director of Fisheries to decide the matter afresh by a speaking order, in accordance with law, after affording an opportunity of hearing to the parties, within a period of two weeks from the date of receipt of a copy of the order.
Till the order is passed by the Senior Assistant Director of Fisheries, status quo as it exists today with regard to possession with regard to the Tank in possession shall be maintained by the parties. Accordingly, the petition is disposed of.
Sd/- JUDGE KS