Andhra HC (Pre-Telangana)
Fishermen Co-Operative Society Ltd., ... vs District Collector, East Godavari And ... on 25 June, 1999
Equivalent citations: 1999(4)ALD270, 2000 A I H C 2005, (1999) 4 ANDHLD 270 (1999) 2 ANDHWR 81, (1999) 2 ANDHWR 81
ORDER
1. The petitioner is a Cooperative Society. It is a functional society formed by 50 fishermen on 27-5-1985 who belong to Kothapet Mandal. The society has its operations in five villages namely Kothapet, Mandapally, Billakarru, Modekurru and Kondalapally. They filed this writ petition for a writ of mandamus declaring the action of the 3rd respondent Gram Panchayat represented by its Executive Officer in auctioning the fishing rights of Lingala Cheruvu of Kothapet village as being illegal and unconstitutional. The 3rd respondent in the auction conducted on 9-7-1988 leased out Lingala Cheruvu ad-measuring 3-00 acres to the 4th respondent. The grievance of the petitioner society is that the 3rd respondent is not competent to lease out the fishing rights of the said tank to the 4th respondent ignoring the claims of Fishermen Cooperative Society.
2. This Court ordered notice before admission on 14-9-1998. Notices were served and the 3rd and 4th respondents have filed counter-affidavits. The petitioners also filed reply affidavits to the counters filed by the 3rd and 4th respondents.
3. Admitted facts that can be culled out from these affidavits show that the fishing right in Linga Cheruvu was leased out in 1973 to one Sri Venkat Reddy. The lease was for a period of three years from 1973-76. After expiry, the lease did not hand over the fishing tank. The Gram Panchayat, the 3rd respondent herein filed OS No.204 of 1977 on the file of the Court of the District Munsif, Kolhapet. The same was decreed on 23-3-1984 in favour of the 3rd respondent directing the defendant Venkat Reddy to hand over the tank and also coconut trees on the bank of the tank. There was an appeal to the Court of Sub-Judge, Rajole by the defendant Venkat Reddy. The appeal AS No.7 of 1984 was dismissed on 19-3-1990. A second appeal to this Court SA No. 188 of 1990 was also dismissed on 10-6-1997. From the counter-affidavit of the 3rd respondent, it is also clear that an application for mesne-profits was filed by the Gram Panchayat in OS No.204 of 1977 before the Court of Jr. Civil Judge, Kothapet. After all this civil judicial process, the tank was taken over possession by 3rd respondent on 7-7-1997.
4. The Gram Panchayat itself maintained Lingala Cheruvu and could get an income of Rs.65,000/- for the year 1997-98 from fishing operations and an amount of Rs.20,000/- on coconut trees. So as to lease out the fishing rights in Lingala Cheruvu, the Gram Panchayat addressed the Divisional Panchayat Officer, second respondent to fix the upset price for three years from 1998-2001. Accordingly, the second respondent fixed an amount of Rs.1,10,000/- as upset price for leasing of fishing rights and a sum of Rs.20,000/- for coconut trees. The said orders were passed by the second respondent in ROC No. 1135 of 1998 dated 18-6-1998. On receipt of the said orders fixing the upset price, the 3rd respondent vide resolution No.28 dated 30-6-1998 resolved to put the tank and coconut trees for public auction. Then the 3rd respondent informed the petitioner society vide letter No.RC 317/98 dated 1-7-1998 that as the Court case regarding enquiry into the mesne profits is pending, the Gram Panchayat has decided to put the . tank for public auction. The society was requested to participate in public auction. The public auction was held on 9-7-1998. The Society did not participate. This is presumably because of its preferential right as per the statutory rules. Be that as it may, the auction was knocked down for a sum of Rs. 1,28,000/- for coconut trees in favour of one V. Arjun Rao. Likewise the auction in respect of leasing of fishing rights was knocked down in favour of the 4th respondent for a period of three years for a sum of Rs.1,11,000/-. The 4th respondent paid Rs.37,000/- being 1/3rd of the lease amount for one year - i.e., 1/3rd of the total lease amount. The lease period started on 1-7-1998 and one year period would be expiring on 30-6-1999. During this period of about one year, the 4th respondent is admittedly carrying out fishing operations.
5. The learned Counsel for the petitioner Sri Sudershana Reddy submitted that the action of the 3rd respondent in auctioning the fishing rights in Lingala Cheruvu in favour of the 4th respondent is illegal and contrary to the rules framed by the Government of Andhra Pradesh in G.O. Ms. No.343 Panchayat Raj (SAM.I) Department dated 10-4-1978. He further submits that even where the Gram Panchayat leases out the fishing rights otherwise than by auction, such auction can only be for a period of one year and therefore a direction should be given to the 3rd respondent to offer the leasing rights in Lingala Cheruvu to the petitioner. The learned Counsel also submits that when law prescribes certain action to be taken by the authorities in such prescribed manner those authorities shall take action only in accordance with such rocedure or not at all. Any action which is not in accordance with law is illegal and therefore to be set aside.
6. The learned Counsel for the 3rd respondent Sri P. Raghavender Reddy has justified the action of the 3rd respondent. He submitted that because of the interlocutory application for fixation of mesne-profits filed in OS No.204 of 1977 which is pending before the Court of Jr. Civil Judge, Kothapet and because for the last 25 years the issue is under dispute resulting in non-availability of any data regarding revenue from the fishing tank, the 3rd respondent decided to auction the Lingala Cheruvu for the purpose of fishing operations. He further submits that though a notice was sent to the President of the Society on 1-7-1998 informing about the public auction, the petitioner did not participate in the public auction and therefore the petitioner should not be granted any relief.
7. The learned Counsel for the 4th respondent Sri Venkateshwar Rao representing Mr. Y. Vivekananda has reiterated the submissions made by the learned Counsel for the 3rd respondent. He further submitted that by not participating in the public auction on 9-7-1998 even after receiving the notice from the Gram Panchayat, the petitioner society has waived the right to question the action of the Gram Panchayat.
8. I have heard the learned Counsel at length.
9. The points that arise for consideration, in this writ petition are :
(i) Whether the rules framed by the Government in G.O. Ms. No.343 Panchayat Raj (SAM.I) Department dated 10-4-1978 permit the Gram Panchayat to conduct public auction for leasing out fishing rights in the tank vested in it even where there is a Fishermen Co-operalive Society existing in the village or entitled to have operations in the village without first offering the fishing rights for lease to such society?
(ii) Whether the Gram Panchayat is competent to put the fishing rights to auction for a period of three years even where one or the other categories of societies mentioned under Rule 3 are existing or operating in the village ?
10. It is the contention of the learned Counsel for the petitioner that as per the rules framed by the Government in G.O. Ms. No.343, dated 10-4-1978 except when the tank is set apart for washing of clothes by local washermen, the Fishermen Co-operative Society, the petitioner herein is as of right entitled to be offered the tank for conducting fishing operations. It is only when the Fishermen Co-operative Society of the local area or other society fails to communicate acceptance with reference to the offer made to it by the Gram Panchayat, the Gram Panchayat shall lease out the rights of the fishing by public auction. Even such lease by way of public auction can only be for one year and cannot be for three years. Therefore, leasing out the fishing rights by putting to auction is itself illegal and further leasing it out to the 4th respondent for a period of three years is capricious and unsustainable.
11. The Government of Andhra Pradesh in exercise of powers under Section 65(1)(b) and Section 85(2) read with Section 217 of A.P. Gram Panchayat Act, 1964 made the rules relating to leasing of fishing rights in minor irrigation tanks and other sources belonging to vested in Gram Panchayats under the Act (hereinafter called the rules). The G.O. Ms. No.343 dated 10-4-1978 contains five Rules : Rule 1 obligates that the Gram Panchayat shalldevelop fisheries in minor irrigation tanks and other sources vested in it. Rule 2 prescribes the procedure for fixing upset price on furnishing the particulars of revenue on such lease during the last five years. On receipt of the particulars, the Divisional Panchayat Officer within five days shall fix the upset price duly considering the revenue of the previous years. The upset price fixed by the Divisional Panchayat Officer can be revised by the Collector (Panchayats) suo motu.
12. Then comes Rule 3 which is very important Rule in the Government Order. Rule 3 speaks of three societies which are given a preferential right. These are :
(a) Fishermen Co-operative Society of the local area;
(b) Rajaka Seva Sangam;
(c) Fishermen Co-operative Societies consisting of Schedule Tribes.
13. Section 81 of A.P. Panchayat Raj Act, 1994 empowers the Gram Panchayat to set apart the tanks which vest in them for specific purpose. In exercise of such power, if the minor irrigation tank or other source is specifically reserved for the purpose of washing clothes, the fishing rights in such tank will have to be offered to the local Rajaka Seva Sangam without public auction. Secondly, when there is no such resolution of Gram Panchayat setting apart the tank for the purpose of washing of clothes and linen, the Gram Panchayat shall lease out the rights of fishing in minor irrigation tanks and other tanks vested in it without public auction to the Fishermen Co-operative Society of the local area. If the Gram Panchayat is one which is situated in a Scheduled area then the Gram Panchayat has no option but to offer the rights of fishing in such irrigation tank or other sources only to the Fishermen Co-operative Societies consisting of Scheduled Tribes as members. As Rule 3(b) of the rules, the ExecutiveAuthority of the Gram Panchayat, immediately on receipt of the intimation referred to under Rule 2(b) from the Divisional Panchayat Officer shall send intimation by the registered post acknowledgment due to the Fishermen Co-operative Society concerned or Rajaka Seva Sangam as the case may be requesting them to give their acceptance before 15 days from the date of receipt of intimation whether the said Co-operative Society or Rajaka Seva Sangam would take the lease at the rate fixed by the Divisional Panchayat Officer. As per Rule 3(c) after receipt of the acceptance from the Fishermen Co-operative Society or Rajaka Seva Sangam, the Executive Authority shall lease out the fishing rights to the said Co-operative Society or the Rajaka Seva Sangam immediately.
14. In case of non-acceplance of the offer by the Fishermen Co-operative Society or Rajaka Seva Sangam, the Executive Authority shall lease out the rights of fishing by public auction taking into account the upset price fixed by the Divisional Panchayat Officer. The same can be resorted to even where the Co-operative Society fails to communicate the acceptance with reference to the offer made to it.
15. A reading of Rules 3 and 4 makes it very clear that if there is Fishermen Co-operative Society and a tank or other source not reserved for washing purpose, the fishing rights shall have to be offered to the Fishermen Co-operative Society. If the Society fails to communicate their acceptance then only the fishing rights can be put to auction. Therefore, it is very clear that after taking possession of Lingala Cheruvu on 7-7-1997 under the rules, the 3rd respondent ought to have followed Rule 3(1) without any demur. In this case, the 3rd respondent has not followed the procedure and has not offered the fishing rights in Lingala Cheruvu to the Fishermen Co-operative Society which is illegal.
16. However, the learned Counsel for the 3rd respondent and the learned Counsel for the 4th respondent tried to justify the action of the 3rd respondent. Their contention is that because from 1973 onwards the subject of fishing rights in Lingala Cheruvu is under dispute and therefore the data regarding the probable revenue is not available and so as to see as to how much amount the Lingala Cheruvu can fetch both for fishing rights as well as coconut trees on its bank, the 3rd respondent conducted auction on 9-7-1998. It is further contended that though by letter dated 1-7-1998, the Lingala Cheruvu was offered to the petitioner society they refused to take it and hence they cannot be heard to make grievance about the sanction.
17. The contention on behalf of the respondents 3 and 4 cannot be appreciated. It is to be rejected. Admittedly, the 3rd respondent issued notice on 1-7-1998 and conducted auction on 9-7-1998. This itself is illegal. Because under Rule 3(b), the Executive Authority of Gram Panchayat shall send intimation to the Co-operative Society requesting them to give their acceptance before 15 days from the date of receipt of information. This is not done in this case. Secondly, the notice says that the society was requested to participate in the public auction and un-conditional offer giving lease of fishing rights in the tank was not given. This is also contrary to Rule 3(b). When an authority resorts to illegality, non-acceptance of the illegality, in my opinion, does not amount to waiver of the right. The other contention that the Executive Officer resorted to public auction under Rule 4, because there is no data as to the probable revenue is also without any basis. In this case admittedly the second respondent by his order dated 18-6-1998 fixed the upset price for fishing rights at Rs.1,10,000/-thereafter only the 3rd respondent sent letter on 1-7-1998 to the petitioner requesting them to participate in the public auction to be held on 19-7-1998. When the upset price fixed by tlie second respondent was available even by 18-6-1998, nothing prevented the 3rd respondent to offer fishing rights as per Rule 3(1) of the Rules. Therefore, the contention of the learned Counsel for the 3rd respondent and 4th respondent are rejected as unsustainable.
18. The learned Counsel for the petitioner in the alternative submitted that even assuming that the action of the 3rd respondent in putting the fishing rights to auction on 9-7-1998 is justified, still giving lease of the. fishing rights for a period of three years is contrary to Rule 5. As already stated above, under Rule 5 if the fishing rights are put to auction, the auction shall be conducted annually and only when it is offered and given to the Fishermen Co-operative Society, the lease shall be for three years. Therefore, the Executive Authority is not competent to lease out the fishing rights for a period of three years at a stretch. Even on this score also, the action of the 3rd respondent in leasing out the fishing rights in Lingala Cheruvu for a period of three years is unsustainable.
19. Social justice is the goal and destiny that is proclaimed by the Preamble and Part IV of the Constitution of India. Directive Principles of Stale Policy require the State to promote the welfare of the people by securing and protecting social order, to reduce economic disparity to make available adequate means of livelihood and to distribute ownership and control material resources so as to subserve the common good. The policy of the Government to offer the fishing rights in the minor irrigation tanks and other sources vesting in Gram Panchayats (there are innumerable such tanks in the State) is a step towards achieving social justice. The purpose is not only the welfare of the Fishermen but also the economic well-being of the Gram Panchayat The under-lying object of G.O. Ms. No.343is to see that the tank is put to proper use by the Gram Panchayat as well as fishermen can be benefited. Therefore, adequate steps were taken to see that the Executive Authorities do not have any discretion in the matter. Unfortunately in this case, the 3rd respondent has ignored the object of the Rules and flouted the Rules which are very clear. In a number of cases, this has repealedly stated that if the public auction is conducted ignoring the rights of the Fishermen Co-operative Society, the auction would be illegal. In Pamarru Fishermen Co-operative Society Ltd. v. Government of A.P., 1981 (2) ALT 40 (NRC), this Court struck down the circular issued by the District Collector directing the lease of fishing rights in public auction without first making offer to the Fishermen Co-operative Society of the local area. This Court also held that the Circular amounts to amendment of the Rules and the District Collector has no power to do so. In Doddigunta Fishermen Co-operative Society Ltd. v. Venkatapuram Gram Panchayat, 1984 (2) ALT 18 (NRC), this Court held that rule is mandatory and any action contrary to the Rules is illegal. In Fishermen Co-operative Society, Kaudibanda v. Sarpanch, Gram Panchayat, Kandibanda, 1986 (1) ALT 113 (NRC), Justice Ramaswamy (as his Lordship then was) observed that the Act and the Rules give a beneficial right that when a society consisting of fishermen has been found existing in the local area of Gram Panchayat, it shall be the duty of that Gram Panchayat to sell the fishing rights to the Society alone. The recourse to public auction would arise only in the absence of such a Society or other societies enumerated in the Rules or non-acceptance of the offer of upset price by the Society.
20. The learned Counsel for the 4th respondent made a feeble attempt and submitted that his client has spent huge amount for bringing the seed and releasing the seed in Lingala Cheruvu. This is seriously disputed by the learned Counsel for the petitioner saying that one year lease will expire by 30-6-1999 and thereafter only the 4th respondent can resort to fresh fishing operations, if any. However, the issue is irrelevant for the purpose of deciding this case and therefore, this Court is not inclined to go into this. It is open to 4th respondent to take such action as is open to him, as per law.
21. For the foregoing reasons, I hold that Rule 3 is mandatory and for violating the same, the action of 3rd respondent is liable to set aside. The writ petition is allowed and the following directions shall be issued:
(i) It is declared that the action of the 3rd respondent in putting the fishing rights in Lingala Cheruvu of Kothapeta Gram Panchayat for public auction on 9-7-1998 is illegal;
(ii) The lease of fishing rights to the 4th respondent from 1-7-1998 to 30-6-1999 is illegal and the same stands cancelled;
(iii) The 4th respondent shall put the Gram Panchayat in possession of the tank on 30-6-1999;
(iv) The 3rd respondent shall follow the procedure contemplated in Rule 2 and Rule 3 of the Rules framed in G.O. Ms. No.343 Panchayat Raj (SAM.I) Department dated 10-4-1978 and lease out Lingala Cheruvu of Kothapet Gram Panchayat for the purpose of fishing operations for a period of three years in favour of the petitioner Society. This direction shall be complied with within a period of five weeks from today; and
(v) There shall be no order as to costs.