Madhya Pradesh High Court
Haji Swa Sahayata Samooh Kaji Basai Teh. ... vs The State Of Madhya Pradesh Thr on 22 March, 2018
1
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.4121/2016
(Haji Swa-Sahayata Samooh Vs. State of M.P. and others)
GWALIOR, 22.03.2018
Shri S.S. Kushwaha, learned counsel for the petitioner.
Shri B.M. Patel, learned Government Advocate for the
respondents No.1, 2 and 3/State.
Shri Sunil Jain, learned counsel for the respondent No.4. With consent heard finally.
The present petition is preferred by the petitioner against the order dated 28.07.2015 passed by Chief Executive Officer, Zila Panchayat, Morena (herein respondent No.2), whereby the lease for fishing rights for 10 years has been awarded to the respondent No.4/Society.
It is the case of the petitioner that the petitioner is registered as Self Help Group and the members of the group are involved in occupation of fishing in the pond in the vicinity at Morena. Respondent No.2 issued NIT for allotment of fishing rights for 10 years to the interested societies/ Self Help Groups, in which the petitioner as well as respondent No.4 registered their interest. After consideration of the respective status of contenders and as per policy issued by the State Government on 8th October, 2008 (Annexure P-3), fishing rights have been given to respondent No.4, which is the bone of contention, hence, the petitioner is before this Court.
Learned counsel appearing on behalf of the petitioner has raised two grounds, one is in respect of the process wherein instead of competitive bidding the respondent No.2 allotted the 2 rights to the respondent No.4 on preferential basis and that as per petitioner, constitutes arbitrariness.
Another ground raised by the learned counsel for the petitioner is in respect of membership of respondent No.4/society while referring the policy and its clause 3.3 of the policy and submits that one member of the society is entitled to get fishing rights to the extent of 4 hectares of pond area. Through the membership list, petitioner demonstrates that respondent No.4/society consisted of 136 members and therefore, total 544 hectares can be given to any society if the membership is 136. Here respondent No.4 already is in possession of pond having 872 hectares, therefore, it could not have been awarded the pond vide Annexure P-1. It is further submitted that the membership is to be reckon with at the time of application and the date of application is 26.09.2014, therefore, the membership if increased subsequently has not positive effect over the case. He prayed for setting aside the impugned order.
Learned Government Advocate appearing on behalf of the respondents/State opposed the prayer made by the petitioner. According to him, policy vide clause 1.3 ¼x½ stipulates the order of precedence which incorporates registered societies at the top of pyramid and Self Help Group comes in descending order at bottom. Self Help Group has the area in operation from 1 hectare to 5 hectares and the pond which consists of more than 5 hectares to 1000 hectares of area are governed by the clause referred above. Petitioner, being Self Help Group, cannot be entitled his head as 3 contender for fishing rights for a pond encompassing more than 5 hectares. Out of the bidders, respondent No.4 was more suitable, therefore, allotment has been given. It is further submitted that clause 4.2 and chart prepared into it, it is demonstrated that if a pond consists of area more than 1000 hectares, then entitlement of a member to possess the area raises to 10 hectares. Here the total area of fishing consists of 1751 hectares as referred in the impugned order itself and the members are 303 at the time of finalization of bid, (now the membership has swollen to 338), therefore, much leverage still exists in respect of maximum ceiling because by this membership, respondent No.4 can acquire fishing rights for more than 3000 hectares, (@ of 10 hectares per person).
Learned counsel appearing on behalf of respondent No.4 also opposed the prayer made by the petitioner and submits that through clause 4.2, the aspect of incremental change in membership is contemplated. The said clause stipulates that with the area of pond membership is to be raised by the societies. Here, area rose to 1751 hectares, therefore, to match the area and give more employment and job avenues to the members, membership has increased and new members have been incorporated. While relying upon the arguments advanced by the learned Government Advocate for the State, in addition, learned counsel for the respondent No.4 referred the order dated 03.12.2015 passed in Writ Petition No.7647/2015 (PIL) in which the Division Bench of this Court declined to admit the petition and found the action of respondents just and proper. The PIL was in respect of the 4 same tender process/same pond. Thereafter, Review Petition No.35/2016 preferred by the then petitioner also got dismissed vide order dated 12.05.2016. Therefore, Division Bench has also given stamp of approval to the tender/bid. He also prayed for dismissal of this petition.
Heard learned counsel for the parties at length and perused the documents.
From the perusal of the petition memo and submissions it appears that the petitioner as Self Help Group is operating in the same area where the respondent No.4 is also operating. The guidelines in respect of Self Help Group are categorical and gives fishing rights to the Self Help Group over the pond to the extent to 5 hectare of area. Since the Self Help Groups are moderately equipped and are to cater limited members, therefore, area of operation is limited whereas society can incorporate hundreds of members and can give job avenues to them. Therefore, for ponds more than 5 hectares, up till 1000 hectares order of precedence gives priority to registered societies and in case of non-availability of them, unregistered societies are given precedence. Thereafter Self Help Group can come into fray as contenders. Here, from the impugned order, it appears that total area of fishing in pond in question appears to be available to the extent of 1751 hectares of water body. If the members of the respondent No.4/society are taken into consideration, and if pond is more than 1000 hectares, then a member can withhold 10 hectares of water body each. Therefore, nothing arbitrary appears to be done at the instance of respondents to grant the Patta rights to respondent No.4.
5Interestingly the petitioner was also in the fray and its bid was duly considered by the respondents which is reflected through R-1 filed by the respondents No.1 to 3, wherein the comparative merit and assessment is made by the authority. Therefore, scope of judicial review constricts and interference is unwarranted. No violation of any fundamental or legal right palpably found.
Another aspect compels this Court to decline interference is the order dated 03.12.2015 passed in Writ Petition No.7647/2015 (PIL) wherein said process was put to challenge unsuccessfully. Once the Division Bench affirmed the NIT process with stamp of approval, on this count also this Court does not intend to tread on different path.
Petition is dismissed.
(Anand Pathak) Judge Rashid Digitally signed by RASHID KHAN Date: 2018.03.24 14:04:47 +05'30'