Karnataka High Court
Arakere Meenugarara Sahakara Sangha ... vs The State Of Karnataka on 3 July, 2012
Author: Ajit J Gunjal
Bench: Ajit J. Gunjal
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 03rd DAY OF JULY 2012
BEFORE
THE HON'BLE MR.JUSTICE AJIT J. GUNJAL
W.P.NO.44104 OF 2011(GM-RES)
BETWEEN:
ARAKERE MEENUGARARA SAHAKARA SANGHA
NIYAMITHA
HAVING ITS REGISTERED OFFICE AT
ARAKERE VILLAGE,
SRIRANGAPATNA TALUK
MANDYA DSITRICT
REP. BY ITS SECRETARY. ... PETITIONER
(By Sri: G CHANDRASEKHARAIAH, ADV., )
AND :
1 THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
TO GOVERNMENT,
DEPARTMENT OF FISHERIES
AND ANIMAL HUSBANDRY
VIKASA SOUDHA
DR.B R AMBEDKAR VEEDHI
BANGALORE-560 001.
2 THE DEPUTY DIRECTOR OF FISHERIES
MYSORE RANGE, KUVEMPUNAGARA
MYSORE 577 023
3 THE SENIOR ASSISTANT DIRECTOR OF
2
FISHERIES, ZILLAPANCHAYATH
MANDYA.
4 THE ASSISTANT DIRECTOR OF FISHERIES
GR-II SRIRANGAPANTA
MANDYA DISTRICT.
5 OLANADU JALASHAYA HAGU
MEENU ABHIVRUDDHI SAHAKARA
SANGHA NIYAMITHA
HAVING ITS REGISTERED OFFICE AT
#.1881/A, SHOP NO.2, WESLEY ROAD,
MANDI MOHALLA
MYSORE 577 001
REP. BY ITS SECRETARY.
... RESPONDENTS
(By Sri: B K MANJUNATH, ADV., FOR R5
K. KRISHNA, AGA FOR R1-4 )
--------
THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER PASSED BY THE SECOND
RESPONDENT ON 17.11.2011 AT ANNEXURE-A; DIRECT
TO THE SECOND RESPONDENT TO ALLOT DODDAKERE
(BIG TANK) OF ARAKERE VILLAGE, SRIRANGAPATNA
TALUK, MANDYA DISTRICT TO THE PETITIONER SOCIETY
ON LEASE FOR THE NEXT FIVE YEARS FROM 2011-12 TO
2015-16 ON PRIORITY AS PER THE GUIDELINES ISSUED
BY THE GOVERNMENT ON 28.1.2006 AS PER ANNEXURE-
A.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:-
3
ORDER
The petitioner has called in question the allotment of fishing rights in favour of respondent No.5.
2. The matter arises in the following manner:-
The petitioner is a Fishermen Co-operative Society registered under the provisions of the Karnataka Co-operative Societies Act, 1959. It is the case of the petitioner that there are about 1198 members in the said society. The object of the society is to take various tanks on lease from the Fisheries Department and to rear fish in the said tanks by putting fish seedlings in the tanks, feed them and harvest them after they are sufficiently grown up. The 5th respondent is also a Fisheries Co-operative Society registered under the provisions of the Act with its head office at Mysore.4
3. It is not in dispute that all the tanks, lakes and rivers in the State would come under the control of Fisheries Department and the Department of Fisheries is allotting the said tanks, lakes and rivers either on lease or by tender and auction periodically. The Government Order dated 28.1.2006, a copy of which is produced at Annexure-B would govern the allotment of fishing rights to various Co-operative societies. According to the petitioner, the fishing rights in the tanks to an extent of 10 hectares shall vest with the jurisdiction of the Fisheries Department Organisations and anything about 40 hectares, it shall be allotted by the Fisheries Department on priority basis as per the Government Order at Annexure-B. It is not in dispute that the lake in question which is situated at Doddakere in Srirangapatna Taluk measures more than 40 hectares. Hence, it would be within the domain of the Fisheries Department to allot the fishing rights to the 5 various aspirants. The case of the petitioner is that Doddakere tank would measure 140 hectares. It is their case that said tank in the first instance was allotted to them in the year 2006 for a period of five years ending on 2010-2011 and the lease amount for those five years would vary. The petitioner society remitted the said amount as and when it fell due. After the lease period had expired, the second respondent called for application for allotment of fishing rights in respect of Doddakere tank on lease for a period of five years commencing from 2011-2012 to 2015-2016. The petitioner alongwith 5th respondent made applications for allotment of said tank on lease for a period of five years. The Fisheries Department found that the application of the petitioner was found wanting for various reasons, inasmuch as, the loan amount was not cleared, they had defaulted in payment of their dues to the Federation and auditing was not conducted for a period of five years between 6 2006-2011 and the byelaws did not disclose the area of operation. On these specific grounds, the application of the petitioner was rejected and that of the 5th respondent was accepted, inasmuch as, the total area which was allotted to 5th respondent would fall within the permissible limit of 300 hectares. The said allotment is called in question in this writ petition.
I have heard Mr. G. Chandrashekaraiah, learned counsel for the petitioner, Mr. B.K. Manjunath, learned counsel for respondent No.5 and Mr. K. Krishna, Addl. Govt. Advocate for respondent Nos.1 to
4.
4. Mr. Chandrashekaraiah, learned counsel for the petitioner submits that the allotment of fishing rights in favour of 5th respondent is liable to be interfered on various grounds. He submits that the 5th respondent society does not operate in Srirangapatna, 7 Mandya District. He submits that the area which is allotted to 5th respondent would exceed 300 hectares. To substantiate his contention, he would refer to the allotment made to the petitioner in the year 2005- 2006 which indicates that the area which is allotted to them would measure 140 hectares and the same could not have been reduced to 96 hectare. He further submits that only tentative audit report is made available. Hence, the 5th respondent does not satisfy the criteria as laid down in Annexure-B and the question of granting fishing rights in their favour does not arise.
5. Mr. Manjunath, learned counsel for respondent No.5 submits that the area of operation of 5th respondent society would include Mandya District also. He further submits that the total area which has been granted to 5th respondent is less than 300 hectares, inasmuch as, the area is measured with reference to the tank which is covered with storage 8 area. He further submits that the petitioner cannot be heard to say that tentative audit report has been made available when the petitioner themselves had not conducted the audit for a period of five years. He further submits that the petitioner society was due a substantial amount to the Federation to the tune of `8.00 lakhs and "No due certificate' which has been issued by the Federation cannot be accepted, more so, having regard to the Federation byelaws. He further submits that Modus operandi of the petitioner is to take the area on lease, then sub-lease it to the other society.
6. Mr. Krishna, learned Addl. Govt. Advocate appearing for respondent No.1 to 4 submits that the area of operation is not disclosed in the byelaws of the petitioner society. He further submits that the area which is leased is determined with reference to the storage capacity of the water in the tank and the area which it covers. In the case on hand, he submits that 9 record of rights and also the notification issued by Kaveri Neeravari Nigama discloses that the area covered is only 95 hectares and not 140 hectares which is the total area of the tank. He justifies the grant of fishing rights in favour of the 5th respondent.
I have given my anxious consideration to the submissions made by learned counsel for the parties.
7. Apparently, the petitioner cannot cry foul when its application is rejected on various grounds. Indeed, it is always desirable to lease fishing rights in favour of the society, which locally operates. It is not in dispute that notwithstanding the fact that 5th respondent society has its head office at Mysore, the area of operation found in the byelaws would cover Mandya District also including the Arakere village which comes under the revenue jurisdiction of Mandya. Hence, to that extent, I am of the view that 10 the priority with reference to the area of jurisdiction is required to be considered.
8. Insofar as the total area which has been leased in favour of 5th respondent is concerned, it is to be noticed that the 5th respondent is allotted an extent of 137 hectares at Amanikere of K.R. Pete Taluk, an extent of 37.60 hectares in S.I.Honnalgere. If the total area of two ponds is taken, it would be 174.60 hectares. The bone of contention is the Doddakere tank which is in Arakere village whether the actual measurement of 140 hectares is required to be taken into consideration or the water body which covers the area of the tank. Apparently, in the case of hand, the total storage area is required to be taken into consideration, more so, having regard to the fact the fishing rights are being auctioned. It is no gain said that fishes are available only where there is water and not outside the water storage area. Apparently, the determination of the area, which is supposed to be 11 leased is always with reference to the availability of water and storage area. It may be that the entire tank would measure 140 hectares. It may be that when the said tank was leased in favour of the petitioner, the water storage capacity was fullest i.e., extent of 140 hectares. Hence, to that extent, I am of the view that the reduction of the area with reference to the water storage capacity cannot be faulted. If 95 hectares which is allotted to the petitioner pursuant to Annexure-A is added to the total extent, the other area which is allotted, it would be 269.60 hectares. Thus, I am of the view that it falls within permissible limit as to be found in Annexure-B.
9. Insofar as the disparity of the amount which was to be paid by the petitioner in the year 2005-2006 and that of the amount paid by respondent No.5 during 2011-2012 is concerned, that should not assume importance, more so, having regard to the fact that the area which was given to 5th respondent is 12 to an extent of 96 hectares. It is also to be noticed that respondent No.5 has made available the tentative audit report, which has been accepted. But, however, the same cannot be said about the petitioner. It is not in dispute that the petitioner society is indebted and loan has not been discharged. It is also not in dispute that the petitioner has defaulted in payment of dues to the Federation to the tune of `8.00 lakh. It is no doubt true that the petitioner has made available 'No due certificate', but, however, the said 'No due certificate' cannot be pressed into service, when the petitioner society is due a substantial amount to the Federation. The byelaws of the Federation itself would indicate that before any society takes the tank on lease, it is required to produce 'No objection certificate' from the Federation. The said byelaws would read as under:-
"«ÄãÀÄUÁgÀgÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼ÀÄ PÉgÉAiÀÄ£ÀÄß E¯ÁSɬÄAzÀ UÀÄwÛUÉUÉ ¥ÀqÉAiÀÄĪÁUÀ ªÀĺÁªÀÄAqÀ½¬ÄAzÀ 13 ¤gÁPÀÉëÃ¥ÀuÁ ¥ÀvÀæzÀ CªÀ±ÀåPÀvɬÄgÀÄvÀÛzÉ. DzÀgÉ ¸ÀĹÛAiÀÄ°ègÀĪÀ «ÄãÀÄUÁgÀgÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ½UÉ ªÀiºÁªÀÄAqÀ½¬ÄAzÀ ¤gÁPÀÉëÃ¥ÀuÁ ¥ÀvÀæ ¤ÃqÀĪÀÅ¢®è. EzÀjAzÀ ¸ÀºÀPÁgÀ ¸ÀAWÀUÀ¼ÀÄ E£ÀÆß DyðPÀªÁV »£ÀßqÉAiÀiÁUÀÄvÀÛªÉ. F §UÉÎ PÀæªÀÄPÉÊUÉƼÀî¨ÉÃPÉAzÀÄ ªÀiÁ£Àå CzsÀåPÀëgÀ£ÀÄß PÉÆÃjzÀgÀÄ."
10. The area of operation of any Society is required to be reflected in the byelaws. In the case on hand, the area of operation is also not reflected in the byelaws of the petitioner. It is no doubt true that respondent No.5 has not raised this ground, but, however, the petitioner cannot take advantage of the folly of 5th respondent. Be that as it may, that is of little consequence. Suffice it to note that the petitioner who is himself a defaulter cannot question the allotment of 5th respondent. It is often said that pot cannot call the kettle black. Even otherwise, the grant of lease in favour of 5th respondent cannot be faulted 14 for the reasons stated above. Having said so, question of interference does not arise. It is always desirable for the authorities to consider the storage capacity with reference to the period of lease, in future.
Petition stands rejected. All interim orders granted stand dissolved.
Mr. K. Krishna, learned Addl. Govt. Advocate is permitted to file memo of appearance within four weeks.
Sd/-
JUDGE *mn/-