Andhra HC (Pre-Telangana)
Gram Panchayat, Nakkabokkalapadu, ... vs The Govt. Of A.P. Rep By Its Secretary To ... on 12 August, 1991
Equivalent citations: 1991(3)ALT44
ORDER Parvatha Rao, J.
1. This Writ Petition relates to fishery rights in Konidena P.W.D. tank in Ballikurava Mandal of Praka6am district. The petitioner is Gram Panchayat of Nakkabokkalapadu village within the limits of which the said tank is situated. It questions the order of the Government of Andhra Pradesh i.e., the 1st respondent herein, in its Memo. No. 67776/Fish.II/ 90-6 dated 15-5-1991 extending the lease period for the fishery rights in the said tank upto 30-6-1991 in favour of the 4th respondent heroin as a special case and setting aside the orders passed by the Collector of Prakasam district in his Proceedings No. 1150/A/90 dated 27-3-1991 allotting the fishery rights in the said tank on lease basis in favour of the petitioner herein for a period of 3 years from Fasli 1400 to 1402 i.e., from 1st July, 1990 to 30th June, 1993 (each Fasli is from 1st July to 30th June of the following year.)
2. The petitioner contends that the grant of fishery rights in its favour in the said tank is in accordance with G.O. Ms. No. 776, Food & Agriculture (Fish-II) Department dated 31-12-1990 and that the lease granted in its favour under the said proceedings of the District Collector dt. 27-3-1991 was cancelled by the 1st respondent without any notice or opportunity to the petitioner and therefore, the said cancellation is opposed to principles of natural justice and has to be set aside. In order to appreciate the contention of the petitioner and its merits, the facts leading up to the impugned order of the 1st respondent dated 15-5-1991 have to be considered in the light of the orders of this Court made in three earlier Writ Petitions.
3. Prior to G.O. Ms. No. 776, Food & Agriculture (Fish-II) Department dated 31-12-1990, the grant of fishing rights in Konidena P.W.D. tank and other similar tanks was under the jurisdiction of the Panchayat Raj department of the 1st respondent-this was brought into effect by G.O. Ms. No. 497, Food & Agriculture (Fish-Il) Department dt. 27-6-1 988 which also prescribed guidelines for auctioning or leasing of fishing rights in the said tanks. The said G.O. Ms. No. 497 dated 27-6-1988 provides as follows : -
"All tanks and water sources other than major reservoirs should rest in Zilla Praja Parishads for purposes of fishing rights. A committee with Chairman, Zilla Praja Parishad as Chairman, Joint Collector and Assistant. Director of Fisheries as Members will be responsible for auctioning or leasing of fishing, proper bunding, revetment, desilting and other maintenance works of the tanks, developing social forestry on the tank bunds and foreshore lands of these tanks. Assistant Director of Fisheries will be under the administrative control of the Z.P.P...................
XXX XXX XXX XXX All the tanks and water sources other than specified in the Annexure to this order which are presently with Fisheries Department shall be transferred to Panchayat Raj and Rural Development Department who in turn will transfer them to the control of Zilla Praja Parishads."
The said G. O. also provided for constitution of District Level Committee for each district with the Chairman, Zilla Praja Parishad as Chairman Joint Collector and Assistant Director of Fisheries as Members, which was to be responsible for auctioning or leasing of fishing rights etc.
4. Under the said G. O. Ms. No. 497 a District Level Committee was constituted for Prakasam District. On 5-12-1988 the said Committee auctioned the fishing rights in Konidena P. W. D. tank for a period of 2 years ending with 30-6-1990. The 4th respondent was the highest bidder at the said auction and consequently the lease of fishing rights in the said tank for two years with 30-6-1990 was granted to him. The 4th respondent states that he paid all the amounts due and payable by him under the said lease including the bid amount of Rs. 81,500/- and that he spent Rs. 46,000/-in August, 1989 for purchasing fish seed and another sum of about Rs. 1 lakh for fish feed. He states that the catch in the first year was negligible and that during the second year he planned to commence fishing from 15-5-1990 onwards, that on 10-5-1990 there was an unprecedented cyclone and Prakasam District was the worst hit by the said cyclone and because of the said cyclone, the Konidena P. W. D. tank overflowed and a large quantity of fish was washed away, and as the tank was too full, it was not possible for him to catch the fish as scheduled. He therefore submitted a representation dated 15-5-1990 to the Collector, Prakasam district for releasing the water from the said tank and he also submitted an application to the District Level Committee for extending the lease period by one year on the same terms to enable him to recoup his loss, However, his request and applications were not considered immediately.
5. The 4th respondent states that on 28-7-1990, at a meeting of the District Level Committee attended by the Chairman, Zilla Praja Parishad of Prakasam district and the Assistant Director of Fisheries Department, Resolution No. P4/1959/90 was passed deciding to extend the lease in his favour by one year i.e., upto 30-6-1991 fixing the rent for that year at Rs. 41,800/-. As the Joint Collector, Prakasam district did not attend the said meeting, the said resolution was sent to him for his approval, though it was not really necessary according to the 4th respondent; but the Joint Collector did not express his view either way. Meanwhile, the 1st respondent issued telegram dated 20-9-1990 staying the lease or auction of fishery rights for the Fasli year 1400 onwards, until further orders. In view of the said telegram, no further action was taken for extending the lease in respect of the fishing rights in the said tank in favour of the 4th respondent by one year i. e., upto 30-6-1991 and he was not allowed to catch any fish. The 4th respondent also represented to the 1st respondent in November, 1990 for extension of his two years lease upto 30-6-1991.
6. Subsequently, the 1st respondent issued G. O. Ms. No. 776, Food & Agriculture (Fish-Il) Department dated 31-12-1990 whereunder once again all the irrigation tanks under the control of the Panchayat Raj Department were brought back under the control of the Fisheries Department, As regards the leasing of the fishery rights in the irrigation tanks the said G O. Ms. No. 776 provides as follows-
"Procedure to be followed-
(a) The period of lease shall be three years, with an optional clause for extension for a further period of (2) years in the event of the Fishermen Co-operative Society making such a request provided they satisfy the rental conditions fixed by Government.
(b) While leasing, first preference should be given to the genuine fishermen Co-operative Societies.
In case of absence of genuine Fishermen Co-operative societies or unwillingness on the part of the identified Fishermen Co-operative Society to take up exploitation at the rentals fixed, next preference should be given to Gram Panchayat/ Municipality followed by public auction and departmental exploitation.
XXX XXX XXX XXX
(c) The Collector of the district shall be the authority for fixing the rentals and he shall take into consideration the productivity of the water sources in consultation with the Fisheries Department. The confirmation of the rentals shall be by the authorities as indicated hereunder:-
Sl. Amount of lease/ Authority to confirm
No. Auction bid amount. lease/Open auction.
1. Rs. 3,000/- and less Asst. Director of
Fisheries.
2. Rs. 3,000/- to Rs. 6000/- Revenue Divisional
Officer of the
concerned area.
3. Rs. 6,000/-and above. District Collector".
For the implementation of the said G.O. the Director of Fisheries, Andhra Pradesh issued instructions to the Assistant Directors of Fisheries in his Circular Memo. No. 13823/C2/90 dated 16-1-1991. Para 1 of the said circular requires the Assistant Directors of Fisheries to formally take over the departmental tanks transferred from Zilla Praja Parishads before 20-1-1991 to facilitate disposal of the tanks at the earliest before the end of Fasli i.e., 30-6-1991. Paras 3 and 4 of the said circular provide as follows :-
"3. After the rental assessment is made the Asst. Directors of Fisheries are requested to convince the District Collector and obtain the approval in person on or before 31-1-1991 to avoid delay in finalising the rentals.
4. After the Collector's approval, the rentals of the tanks have to be communicated to concerned Fishermen Co-operative Society and obtain their consent before 10-2-1991. In case, the Fishermen Co-operative Society is unwilling to take up exploitation at the rentals fixed, next preference should be given to Gram Panchayat/ Municipality by 20-2-1991 followed by Public Auction before 28-2-1991 by giving wide publicity.. .. .. ..".
7. The petitioner relies on the said G.O.Ms. No. 776 dated 31-124990. In the affidavit filed in support of the Writ Petition, the Sapanch of the petitioner states that no claim was made by the Fishermen Co-operative Society since its registration was suspended and that therefore, the petitioner is entitled for allotment of the fishery rights in the Konidena P.W.D. tank for the three Fasli years 1400 to 1402. He states that as the petitioner's case was not being considered by the authorities concerned, the petitioner filed Writ Petition No. 3030 of 1991 before this Court and on 6-3-1991 this Court directed that the case of the petitioner be considered for being allotted the fishery rights in the said tank in the light of the said G.O.Ms. No. 776. Accordingly the lease was given in its favour by the District Collector in his Re. No. 1150/A/90 dated 27-3-1991 and by the same order, the District Collector rejected the application of the 4th respondent herein on the ground that an individual cannot get preference over the Gram Panchayat in view of the said G.O.Ms. No. 776. The said lease was given to the petitioner for a period of 3 years at Rs. 40,000/- for Fasli. The petitioner paid the amount and complied with all the formalities and entered into an agreement dated 16-4-1991 with the 1st respondent herein as the lessor and the petitioner as the lessee. Thereafter, the 3rd respondent issued permit No. 221/2/90 dated 16-4-1991 permitting the petitioner to fish in the said tank upto the end of June, 1991. On 17-4-1991 a telegram purporting to be by the Fisheries Department was received. Subsequently another telegram was received on 25-4-1991 by the 2nd respondent to the effect that the earlier telegram dated 17-4-1991 was a fake and respondents 2 and 3 therefore directed continuance of the lease and exercise of fishing rights by the petitioner by proceedings in Re. No. 221/2/91 dt. 8-5-1991. On 9-5-91 the 1st respondent issued a communication by telegram staying the operation of the orders of the District Collector, Ongole in his proceedings Rc. No. 1150/A/90 dated 27-3-1991 consequent to which the 3rd respondent directed the stay of fishing in the said tank by the petitioner by order dated 9-5-1991. That was followed by the impugned Memo. Of the Government dated 15-5-1991 wherein it is stated as follows :-
"The attention of the Director of Fisheries, Andhra Pradesh Hyderabad, is invited to the reference 2nd cited and he is informed that for the reasons explained by Sri D. Mastan, Government have decided to extend the lease period for the fishery rights in Konidena P.W.D. tank of Prakasam District upto 30-6-1991 in favour of Sri Darsi Mastan, Nakkabokkalapadu Village, Ballikurava Madal Prakasam District as a Special case, by setting aside the orders passed by the Collector, Prakasam District in his Proceedings No. 1150/A/90 dated 27-3-1991.
The Director of Fisheries is requested to take immediate action! The lease amount payable shall be as fixed under G.O.Ms. No. 776 Food & Agriculture (Fish. II) Department, dated 31-12-1990."
8. In the counter affidavit filed on behalf of the 1st respondent by the Assistant Secretary to Government, Food & Agriculture Department, it is stated that the lease period for the fishery rights in the said tank was extended upto 30-6-1991 in favour of the 4th respondent herein by setting aside the orders of the District Collector dated 27-3-1991 "as he is the least holder for the last 2 Fasli years 1988-89 and 89-90 and sought extension of lease period upto 30-6-1991 on the ground that during cyclone in May, 1990 most of the Fish in Konidena tank was washed away thus causing him huge loss to enable him to exploit the fish and to recover the investment made by him for seed, cost of feed and rearing of fish etc., and also his case was considered for extension of lease based on the Order of the High Court of Andhra Pradesh dated 5-3-1991 in Writ Petition No. 3174 of 1991". It is also stated in the said counter affidavit that the 4th respondent "represented to Government in November, 1990 for extension of lease upto 30-6-1991 prior to the issue of G.O.Ms. No. 776, Food and Agriculture (Fish-II) Department dated 31-12-1990". It is also submitted therein that as it was only extension of the lease to the existing lease holder, but not sanction of fresh lease, the action of the 1st respondent is not illegal or improper and it cannot be questioned on the ground that no notice was issued to the petitioner or on the ground that it was against the principles of natural justice. It is also stated that if fresh lease is to be sanctioned the petitioner will be considered. The learned Government Pleader also produced the records. The record discloses that the 4th respondent submitted a representation to the Collector, Prakasam district on 25-5-1990 stating, inter alia, that he made arrangements to catch the fish in Konidena P.W.D. tank during May, 1990, and that due to the cyclone the said tank became full and that unless the water was let out he would not be able to catch fish and therefore the P.W.D. Executive Engineer should be instructed to let out water from the said tank so as to enable him to catch fish. He also stated therein that he invested upto about Rs. 2 lakhs for purchase of fish seed, fish feed etc. On the said representation, the Mandal Revenue Officer of Ballikurava and the Executive Engineer were asked by the Collector to submit reports. The said Mandal Revenue Officer submitted his report dated 3-6-1990 stating that some of the ayacutdars had no objection for bailing out of water from the said tank while certain others objected to the same. The Executive Engineer. Irrigation Division, Ongole in his letter dated 8-6-1990 addressed to the Collector stated that he inspected the said tank on 6-6-1990 and found that it received water in May, 1990 to full tank level. He further reported as follows :-
"On examination of the regulation aspects and fishing rights, I am of the opinion that due to sudden receipt of water in the month of May, 1990 due to cyclone the fishing operation was hampered and so they appear to have resorted to emptying the tank through some breaches in the surplus weir.
On discussions with the ryots who want to use the water profit ably for the first crop it would be better to release water for seedlings from about 3rd week of June and gradually depleting it till end of August, 1990. When the water level comes down in August 1990 fishing can be done so that their interest does not suffer.
But there is a practical problem. The fishing rights will expire by end of June 1990. The fishing auction was conducted by the Zilla Parishad. Hence the Z.P. may be ordered to extend the period of fishing licence upto end of August 1990, so that the interest of both the ryots who want to use water for crops and fishing licence also get safeguarded.
Meanwhile I have instructed the Deputy Exe. Engineer, Irrigation to close the breaches in the surplus weir and arrange watch for safeguarding the stored water from wastage.
I therefore request that necessary orders may please be issued directing Z.P. to extend the period of fishing operation to end of August, 1990 and orders to Mandal Revenue Officer to release water in the 3rd week of June 1990 as explained above."
The 4th respondent submitted a representation dated 1-6-1990 to the Joint Collector, Prakasam district requesting extension of his lease for Fasli 1400 with a copy to the 2nd respondent herein. The Joint Collector addressed D.O. letter No. 4251/90 dated 5-6-1990 to the 2nd respondent herein and the latter, in his reply bearing Roc. No. 1150B/90 dated 19-6-1990, stated as follows :-
"The party (the 4th respondent herein) has purchased fish seed from a Private Fish Seed Farm of Guntur and stocked in the Tank.
It is to submit that due to heavy rains in the cyclone of May, 1990 the tank is filled and due to this reason it may not be possible to exploit the fishery before closer of the fasli year i.e., before 30-6-1990. It is not correct that the fish died in the cyclone, but it is reported that some fish ascended to the upper reaches and its Value could not be assessed at this stage. As regards granting extension of lease for one more year, it is to submit that there are no rules framed in this regard. It is therefore recommended that the issue may be put before the District Level Committee for taking further action in the matter."
In Rc. A7/4251/90 dated 30-6-1990 addressed to the District Development Officer, Zilla Praja Parishad, Ongole, the Collector of Prakasam district referred to the petition of the 4th respondent dated 25-5-1990 requesting the extension of the lease period upto August, 1990 in view of the cyclone and his inability to exploit the fishery before the end of the fasli i.e., 30-6-1990 and also to the report of the 2nd respondent herein dt. 19-6-1990 and requested the said District Development Officer "to take necessary action and place the issue before the District Level Committee for taking decision and report the decision of the committee". It is under these circumstances that the matter was placed before the District Level Committee. The 4th respondent also submitted a representation dated 30-6-1990 to the Chairman, Zilla Praja Parishad, Prakasam district requesting the extension of the lease period for fasli 1400. The matter was placed before the District Level Committee on 28-7-1990 for extension of the lease period by one year for its approval. The Chairman, Zilla Praja Parishad and the 2nd respondent only attended the said meeting and the relevant note file shows that they affixed their signatures to the said resolution. However, no action was taken thereon. Subsequently the 1st respondent sent telegram dated 20-9-1990 staying lease or auction of fishery rights in the tanks and water sources vesting in the Gram Panchayats and Zilla Praja Parishads from fasli year 1400 until further orders. The Collector, Ongole addressed letters dated 21-10-1990 and 5-12-1990 to the District Development Officer, Prakasam Zilla Praja Parishad for intimating whether the issue relating to the 4th respondent's request in his letter dated 25-5-1990 was placed before the District Level Committee and if so to report the decision taken by the said Committee in that regard and by letter dated 18-12-1990 the Collector was informed that in view of the stay orders of the 1st respondent, no further action could be taken.
9. The file of the 1st respondent discloses that the 4th respondent submitted representation dated 26-11-1990 to the Minister for Agriculture and Fisheries, Government of Andhra Pradesh whereon the Minister endorsed 'please examine and put up' on 27-11-1990. In the said representation, the petitioner referred to his earlier representations to the Collector dated 15-5-1990, the Joint Collector dated 1-6-1990, to the Chairman, Zilla Praja Parishad, Prakasam district dated 30-6-1990 and pointed out:
'While the matter is under consideration before the District Level Leading Committee the Government temporarily stopped the disposal of leases in order to make modifications on the lease procedure. Due to above delay in consideration of my request, I was being put to further loss'.
Hence, I humbly request the authority to be kind enough to consider my case sympathetically as I was put heavy loss on natural calamities i.e., cyclone occurred on 10th May, 1990 and issue favourable orders for extension of lease for Fasli 1400 may be granted immediately saving me from further loss'.
The 4th respondent submitted another representation dated 9-2-1991 to the Minister for Animal Husbandry and Fisheries where in the Minister endorsed on 25-2-1991 'please examine and take necessary action'.
10. Then the 4th respondent approached this Court on 4-3-1991 by way of Writ Petition No. 3174 of 1991 for directing the respondents therein to permit him to catch the fish during the fasli year 1400 in the said tank in pursuance of the resolution No. P4/1959/90 dated 28-7-1990 of the District Level Committee, which was impleaded therein as the 4th respondent. The respondents 1 to 3 in the said Writ Petition were the Government of Andhra Pradesh, the Director of Fisheries and the Assistant Director of Fisheries, Prakasam district. On 5-3-1991 this Court disposed of the Writ Petition No. 3174 of 1991 as follows :-
'The petitioner states that for the fasli year 1400, the competent authority i.e., the committee set up for grant of leases have passed a resolution dated 28-7-1990 permitting him to catch the fish on condition of payment of Rs. 41,800/-. The petitioner's case is that is view of the subsequent development i.e., the issuance of G.O. 776, Food and Agriculture, dated 31-12-1990, steps have been taken by the persons concerned to auction the same and attempts are being made to prevent him from catching the fish which were reared by him for the year 1990-91.
Since the representation that has already been filed by the petitioner is pending before the Government, the first respondent is directed to consider his representation and dispose of the same within three weeks from the date of receipt of this order. The petitioner is directed to submit a fresh copy of the representation along with the order passed by this court and the same be presented before the first respondent. The Writ Petition is disposed of accordingly. No costs. Advocate's fee Rs. 200/-.'
11. The 4th respondent once again submitted a representation dt. 11-3-91 to the 1st respondent enclosing the order of this Court dated 5-3-1991 in Writ Petition No. 3174 of 1991 and praying that suitable orders may be passed for permitting him to catch the fish reared by him in the said tank and for extending the period for a period of 2 years from 30-6-1990 to 30-6-1992. The said representation dated 11-3-1991 was submitted to the Secretary, Food & Agriculture, Animal Husbandry and Fisheries and there is an endorsement thereon 'obtain and put up details at once' on 11-3-1991. It is surprising that even after this, the Government did not give its decision on the 4th respondent's application without further delay.
12. The 4th respondent's Writ Petition No. 3174 of 1991 was filed on 4-3-1991. Even prior to that the petitioner filed Writ Petition No. 3030 of 1991 on 28-2-1991 against the Government of Andhra Pradesh, the District Collector, Prakasam district and the Assistant Director of Fisheries, Ongole as respondent 1 to 3. The Writ Petition came up for admission on 4-3-1991 and got adjourned to 6-3-1991 and it was disposed of at the admission stage by the following order :-
"Heard the learned counsel for the petitioner and the learned Government Pleader.
The petitioner-Gram Panchayat made an application on 1-2-1991 to respondents 2 and 3 for leasing out the fishery rights as per G.O. Ms.No. 776 dt. 31-12-90, but the said application has not been considered by the authorities. In similar circumstances in W.P.No. 3174 of 1991, on 5-3-1991 this Court directed the authorities to consider the case of the petitioner therein on merits. Hence, this Court feels that a direction shall issue to the respondents to consider the case of the petitioner to grant fishery rights as per G. O. Ms. No. 776 dated 31-12-1990 and the Rules and regulations connected thereto, within a period of three weeks from the date of receipt of this order.
The Writ Petition is accordingly disposed of."
The observation that "in similar circumstances in Writ Petition 3174 of 1991, on 5-3-1991, this Court directed the authorities to consider the case of the petitioner therein on merits" is not correct. The circumstances stated in Writ Petition No. 3174 of 1991 are very different from the circumstances stated in Writ Petition No. 3030 of 1991. Secondly, in Writ Petition No. 3174 of 1991 this Court directed only the Government of Andhra Pradesh, the 1st respondent in the said Writ Petition, to consider the representation of the 4th respondent herein and dispose of the same within three weeks. The District Collector. Prakasam district is not a respondent in Writ Petition No. 3174 of 1991. It is also to be noticed that the 4th respondent was not made a party to Writ Petition No. 3030 of 1991 and therefore the said order dated 6-3-1991 cannot affect his rights and claims for extension of his pre-existing lease which ended on 30-6-1990 for the reasons stated by him.
13. The files produced before me disclose that the 4th respondent submitted a representation on 12-3-1991 to the Collector, Prakasam district enclosing a copy of the order of this Court in Writ Petition No. 3174 of 1991 dated 5-3-1991. In the said representation, the 4th respondent stated that he submitted a representation dated 15-5-1990 to the Collector, Prakasam district, Joint Collector, Prakasam district and to the Assistant Director of Fisheries, Ongole for extending his lease period by one year i.e., upto 30-6-1991. He also stated that on 28-7-1990 the District Level Committee passed a resolution extending the lease by one year and that the Joint Collector, who did not attend the said meeting did not raise any objection to the decision taken by the said Committee. He also contended that G.O. Ms. No. 776 dated 31-12-1990 and the Circular Memo No. 13823/ C2/90 dated 16-1-1991 issued by the Director of Fisheries were prospective in operation and would apply only to new leases granted on and after 30-6-1991 and that he is entitled to exercise the lease hold rights in the said tank upto 30-6-1991 in pursuance of the resolution of the District Level Committee dated 28-7-1990. He further stated as follows:-
"In spite of my representations both to the committee and the Government I have not been allowed to exercise my rights by the Assistant Director of Fisheries, Ongole. I submit that the fish that are now in the tank were raised by me and belong to' me, I did not catch even a single fish during the 1398 and 1399 Fasli years, though I paid the entire lease amount of Rs. 81,500- and expended over Rs. 1 lakh for fish seed etc. Even though there is no obligation for me to pay any further amount, I am prepared to pay Rs. 41,800/- as fixed by the Committee. Hence 1 pray that I may be permitted to catch the fish during 1400 Fasli year."
The petitioner herein also submitted a representation dated 13-3-1991 to the District Collector, Ongole stating inter alia as follows:-
"The representation made by us on 1-2-1991 to allot the P.W.D Tank of Konidena village to our panchayat, as there is no co-operative society in our village is pending with your kindness. Subsequently an individual by name Darsi Mastan and our Panchayat made Writ Petitions in W.P. 3174/91 and 3030/91 before Andhra Pradesh High Court. The High Court pleased to give a direction in this regard to you to dispose of the matter within 3 weeks. A Photostat copy of the order of High Court is herewith enclosed.
We submit that according to the Government Order individuals cannot get any preference over Gram Panchayat provided there is no Co-operative society in our village. Hence we request your goodness to strictly implement the G.O. 776 and the tank may he allotted."
In the note of the 2nd respondent of 3-3-1991 submitted to the District Collector, Ongole, he stated as follows:-
"Besides the petition of Sri D. Mastan for extension of lease for 1400 fasli, the President of the Kondayapalem Girijan Fishermen Coop. Society and Sarpanch of the Nakkabokkalapadu Gram Panchayat have also requested for leasing out of tanks as per Government orders.
In this connection, the Director of Fisheries, A.P. Hyderabad in his letter Re. No. 14147/C290, dt. 12-2-91 instructed the Asst. Director of Fisheries, Ongole to take action on the representation of Sri D. Mastan as per the Government orders issued in the G.O. Ms. No. 776, F & A (Fish. II) Department dt. 31-12-90, to exercise his powers as per rules and bring the same to the notice of the District Collector and settle the issue as early as possible.
In view of the above facts and as per the Government orders issued in G.O. Ms. No. 776 F&A (Fish. II) Department., dt. 31-12-90 the extension of lease to Sri D. Mastan, cannot be granted unless the Government issued specific direction in this regard.
With regard to the Kondayapalem Girijan Fishermen Co-op. Society, Government stay orders are in force on the registration of Fishermen Co-op. Society.
Hence only alternative as matter stands is leasing out of the Konidena P.W.D. Tank to Nakkabokkalapadu Gram Panchayat as per Government orders and to avoid loss to the Government Revenue."
On the said note the District Collector, Prakasam district noted inter alia on 5-3-1991 that the 2nd respondent was not taking specific and clear stand and that he may discuss with him on 12-3-1991. On 18-3-1991 the Collector noted "discussed today. Discussions should not be delayed. I have endorsed on 5-3-1991. They kept quite till today". After this the 2nd respondent submitted to the Collector on 25-3-1991 that "the lease of fishing rights in Nallavagu i.e., Konidena P.W.D Tank may be leased out in favour of Nakkabokkalapadu Gram Panchayat for 3 fasli years i.e., F. 1400 to 1402 as the registration of the Fishermen Co-op. Society stayed by the Government and as per the resolution given by the Sarpanch, Gram Panchayat for Rs. 40.000/- per fasli for 3 fasli years i.e., 1400 to 1402". Thereafter, the District Collector, Prakasam district in his proceedings Re. No. 1150/A/90 dated 27-3-1991 passed the orders granting the lease to the petitioner herein on the basis of the said note of the 2nd respondent herein. In the said proceedings, the petition of the 4th respondent dated 21-5-1990 was referred to and order was made in favour of the petitioner on the basis of the said G.O.Ms. No. 776 dated 31-12-1990. The Collector rejected the application of the 4th respondent on the ground that "an individual does not get preference over Gram Panchayat".
14. On the same day i.e., on 27-3-1991 the 4th respondent submitted a representation to the Secretary, F&A, Hyderabad reiterating what was stated before and referring to the order of this Court in Writ Petition No. 3174 of 1991 dated 5-3-1991 and enclosing a copy of the same and asking for orders permitting him to catch the fish reared by him in the said tank by extending the lease for a period of one year from 30-6-1990 to 30-6-1991. On the said representation, the Secretary endorsed "examine and put up on 1-4-1991 positively". The 4th respondent represented to the Minister for Animal Husbandry and Fisheries on 10-4-1991 narrating once again all the facts stated in his earlier representations and also alleging that inspite of the telegram of the Director of Fisheries to the 2nd respondent on 28-3-1991 asking him to send all the records in respect of the 4th respondent's request for extension of lease period, anti-dated orders with the date 27-3-1991 were passed by the District Collector and the 2nd respondent granting the lease to the petitioner herein, and requesting the Government to examine the matter and to extend the lease in his favour by one year. On 11-4-1991 the Minister passed orders thereon as follow:-
"Orders of the Collector, Ongole issued in Progs. No. 1150/A/90 dated 27-3-1991 are stayed pending disposal of the representation of Sri D. Mastan, cyclone victim. Please call for the relevant records of Sri D. Mastan and others. Orders should go telegraphically."
The note file of the Government shows that the issuance of the telegram as directed by the Minister was stalled. The is an endorsement of the Deputy Secretary in his own hand dated 15-4-1991 as follows:-
"In this file when the orders in pursuance of the minute of M (A.H. & F) was about to be issued, Secretary was informed on phone that the CM. desired to see the file. As such, the file may be sent to D.S. to CM. (R) for confirmation whether the CM. desired to this file."
There is a typed noting of D.S. (R) to CM. dated 3-5-1991 as follows:-
"This file was not called for from the CM's Secretariat. It is not known as to who has informed the Secretary, F&A over phone. However, as the file has been sent to the CM's Secretariat, the matter has been briefed to the CM. CM. has been pleased to instruct that the orders passed by the Minister (A.H&F) may be issued immediately."
Thereafter, on 4-5-1991 there is an endorsement of the Secretary as follows:-
"Prl. Secretary to CM. only spoke to me and called for this. In view of the endorsement of D.S. (R) to CM. stay orders already passed by M (A.H.F) may be issued."
15. Meanwhile, the 4th respondent filed Writ Petition No. 5647 of 1991 on 18-4-1991 before this Court impleading the Government of Andhra Pradesh, the Director of Fisheries, the District Collector, Prakasam district, the Assistant Director of Fisheries, Prakasam district, Ongole, the Assistant Inspector of Fisheries, Chakrayapalem, and the petitioner herein as respondents 1 to 6 therein. In the said Writ Petition, the 4th respondent herein sought a Writ of Mandamus "declaring the Proceedings of the District Collector, Ongole in Re. No. 1150/A/90 dated 27-3-1991, as illegal and void......". Anticipating the said Writ Petition, the petitioner herein through its Sarpanch filed a Caveat Petition on 9-4-1991. In his affidavit in support of the said Writ Petition, the 4th respondent herein stated that he approached the Government on 10-4-1991 questioning the legality and validity of the Collector's order dated 27-3-1991 and that the Honourable Minister for Fisheries had stayed the said order by endorsement No. 945/M/(A.H&F) dated 11-4-1991 but the same had not been communicated as on the date of the filing of the said Writ Petition and that taking advantage of the non-communication of the stay orders, the Assistant Director of Fisheries, Chakrayapalem had issued permit to the petitioner herein on 16-4-1991 to catch the fish in the the said tank On 22-4-199! this Court after hearing the counsel for the petitioner herein and the Government Pleader passed the following orders in the said Writ Petition No. 5647 of 1991.
".... Heard both sides.
According to the petitioner, the Government granted stay on 11-4-1991. Now, the Assistant Inspector of Fisheries issued proceedings dated 19-4-1991 to the effect that in pursuance of the stay order granted by the Government, no one has got a right of fishing. Since the Assistant Inspector of Fisheries has already expressed that till the final orders are passed, no action need be taken, he is prevented from passing any orders unless and until he receives the result of the stay application that has been pending before the Government. Therefore, the Writ Petition is closed.....
However, the Government is directed to dispose of the revision which is pending, as expeditiously as possible."
16. The 4th respondent also filed another represention dated 4-5-1991 to the Minister for Animal Husbandry and Fisheries and on 5-5-1991 the Minister endorsed thereon as follows:-
"Secretary (F&A):
I have already stayed the orders of the Collector. It is stated that the above orders were not issued to the concerned. Please get the file immediately, issue orders and circulate the file at once".
Thereafter a telegram was despatched by the Government to the Director of Fisheries Andhra Pradesh and Collector, Prakasam district on 7-5-1991 staying the orders of the District Collector dated 27-3-191 regarding lease of the said tank pending disposal of the representation of the 4th respondent herein. The Government's file contains also D.O. Letter No. 7111/C.2/91 dated 20-4-1991 of the Director of Fisheries addressed to the Secretary to Government, Food & Agriculture department, Andhra Pradesh, Hyderabad wherein he confirmed that the 4th respondent's request for extension of his lease by one year was placed before the then District Level Committee for consideration and that out of the 3 members, 2 members i.e., the Assistant Director of Fisheries, Ongole and Z.P.P. Chairman agreed whereas the Joint Collector, who was also the member of the Committee did not attend and sign in the resolution and that as such proceedings could not be issued and that subsequently Government issued stay orders for lease or auction of fishing rights by Z.P.P.S. from 1400 Fasli. He also observed that in Writ Petition No. 3174 of 1991 filed by the 4th respondent, this Court directed the Government to consider the representation and dispose of the same within 3 weeks and that the petitioner submitted the represention to the Government and that while the matter was under examination by the Government, the Assistant Director of Fisheries submitted proposal to the District Collector for disposal of the said tank as per G.O.Ms. No. 776 dated 31-12-1990.
17. I find that the note file of the Government contains detailed reasons for the extension of the lease period by one year in favour of the 4th respondent herein and for setting aside the order of the Collector dated 27-3-1991 in favour of the petitioner herein under the order in Memo, dated 15-5-1991, as follows:-
"Nothing has been mentioned in the direction given by the High Court in respect of Gram Panchayat, Nakkabokkalapadu to consider the lease in favour of the latter only. As such no rights have been conferred on the Gram Panchayat, Nakkabokkalapadu. As the petitions are pending before the Government which has to take a decision in response to the directions given in the Writ Petitions. the Collector, Ongole, should not have hastened to issue lease orders of Konidena tank in favour of Gram Panchayat, Nakkabokkalapadu at this juncture that too in the instant disputed case.
The petitioner is an old lessee and requested to extend the lease period upto 30-6-91. He is not seeking lease afresh of Konidena tank in accordance with G.O. Ms. No. 776, F & A (Fish. II) Dept. dt. 31-12-90 which does not have any retrospective effect. The G.O. speaks about transfer of tanks that were under the control of various departments to the department of Fisheries and of the procedure involved therein, but does not prohibit further extension of the lease that was in existence prior to the issue of the G.O. by the competent authority."
18. From the above narration of events certain undisputed facts emerge. The 4th respondent had fishing rights in Konidena P.W.D. tank for a period of 2 years ending with 30-6-1990. There was cyclone in May, 1990 and the said tank became too full because of which the 4th respondent could not catch the fish which he reared in the said tank. In May, 1990 itself he made an application for the water in the said tank to be let out so that he could catch the fish. The authorities concerned did not permit that because of which the 4th respondent could not catch his fish by 30-6-1990. There was recommendation by the concerned Executive Engineer that the lease in favour of the 4th respondent should be extended upto the end of August, 1990 so as to enable him to catch his fish in the said tank. But the authorities concerned slept over the said suggestion. The 4th respondent applied by June, 1990 itself to the Collector and Joint Collector of Prakasam District, and also to the Prakasam Zilla District Level Committee, and to the 2nd respondent herein for extension of his lease for Fasli 1400. The District Level Committee considered the application of the 4th respondent on 28-7-1990 and two of its three members attended the said meeting and agreed for the extension of the 4th respondent's lease by one year. The Joint Collector, who was the absentee member of the said Committee, did neither approve nor dissent when the resolution was sent to him ; and no action was taken thereon subsequently. The 1st respondent sent telegram dated 20-9-1990 staying the lease or auction of fishery rights in the tanks in the Gram Panchayats and Zilla Praja Parishads from Fasli year 1400 until further orders. Thereafter, the new policy of the Government as regards leasing of fishery rights in the said tanks was formulated in the said G.O. Ms. No. 776 dated 31-12-1990. Even prior to the said G.O. the 4th respondent submitted representation dated 26-11-1990 to the Minister for Agriculture and Fisheries, Government of Andhra Pradesh. He submitted another representation on 9-2-1991, and again on 11-3-1991 enclosing the order of this Court dated 5-3-1991 in his Writ Petition No. 3174 of 1991. He followed that with the representations to the 1st respondent on 27-3-1991, 10-4-1991 and 4-5-1991. In all these representations, the 4th respondent did not ask for a fresh lease of fishing rights in the said tank, but was only asking for extension of pre-existing tease which expired on 30-6-90 before he could catch the fish reared by him because of the cyclone of May, 1990. He did not claim extension of lease under or pursuant to the said G.O.Ms.No. 776 date 31-12-1990. In fact, his claim was based on facts and circumstances which existed long prior to the said G.O.
19. From the above, it is clear that the 2nd respondent herein and Collector, Prakasam district erred in considering the application of the 4th respondent dated 21-5-1990 along with the application of the petitioner under the said G.O. Ms. No. 776 dated 31-12-1990. Viewed in any manner, the said G.O. cannot have any application to extension of leases granted long before it came into force based on facts and circumstances which were in existence long before the 6aid G.O. came into force.
20. On the facts and circumstances of this case, 1 am clearly of the view that the 2nd respondent herein and the Collector, Prakasam district had no authority to consider the applications and representations of the 4th respondent for extension of the lease on the facts stated by him. Even before the said G. O. Ms. No. 776 dated 31-12-1990 was issued, the 4th respondent placed the matter before the Government by his representation dated 26-11-1990. If there was any doubt in the matter, the said doubt was cleared by the order of this Court dated 5-3-1991 in the 4th respondent's Writ Petition No. 3174 of 1991. This Court clearly directed the Government to consider the representation of the 4th respondent herein and dispose of the same within 3 weeks from the date of receipt of the said order. The 4th respondent was directed by the said order to submit a fresh copy of the representation along with the order passed by this Court. The 4th respondent did so on 11-3-1991 and also enclosed a copy of the order of this Court dated 5-3-1991. Inspite of that the nonchalant bureaucracy concerned did not lift itself from the mire of sloth and allowed the District Collector, Prakasam district and the 2nd respondent herein to proceed with the matter. The Collector, Prakasam district ought to have known better when he had the direction of this Court dated 5r3-1991 in Writ Petition No. 3174 of 1991 preferred by the 4th respondent herein, before him. It clearly directed the Government to consider the representation of the 4th respondent. In any view of the matter, he ought to have sought clarification from the Government as to what he should do because, if the Government decided to extend the lease as sought for by the 4th respondent, 1400 Fasli would not be available for grant of lease under the said G.O. Ms. No. 776 dated 31-12-1990. I am therefore of the view that the 1st respondent is right in observing that when petitions of the 4th respondent were pending before the Government which had to take a decision on the directions of this Court, the Collector, Prakasam district should not have hastened to issue lease orders in respect of the said tank in favour of the petitioner herein. The 1st respondent is also right in holding that the 4th respondent was not seeking lease afresh in the said tank in accordance with G.O. Ms. No. 776 dated 31-12-1990 "which does not have any retrospective effect". Under the said G.O. leases can be granted effectively only from 1-1-1991, if at all. On the facts and circumstances of this case, I am of the view that the order of the 1st respondent extending the lease in favour of the 4th respondent for one more year cannot be faulted. One can only comment that it was an inordinately belated action which gave rise to unnecessary complications driving the parties concerned to a number of Writ Petitions before this Court. In the event, the 1st respondent was confronted with the order of the Collector of Prakasam district in his Re. No. 1150/A/90 dated 27-3-1991 granting the fishery rights in the said tank on lease to the petitioner herein for a period of 3 years i.e., for Fasli 1400 to 1402 and the necessary consequence of setting it aside.
21. The learned counsel for the petitioner contends that the order of the 1st respondent cancelling the grant of lease by the Collector in favour of the petitioner without giving it notice and opportunity, is violative of principles of natural justice and fair play and therefore is liable to be set aside and ignored as non-est. On the facts and circumstances of this case, I do not see any force or weight in the said contention. As already stated by me earlier, neither the 2nd respondent nor the Collector, Prakasam district had any authority or jurisdiction to deal with the application or representation of the 4th respondent of May, 1990, much less on the basis of the said G.O.Ms. No. 776 dated 31-12-1990. On 26-11-1990 itself the 4th respondent approached the 1st respondent prior to the said G.O. Even alter the said G.O. he approached the 1st respondent on 9-2-1991. Then there is the order of this Court dated 5-3-1991 in his Writ Petition No. 3174 of 1991 directing the 1st respondent to consider his representation. As for the said order, the Collector, Prakasam district is not a respondent in the said Writ Petition. As regards the order of this Court dated 6-3-1991 in the petitioner's Writ Petition No. 3030 of 1991, there is specific reference therein to the order dated 5-3-1991 in Writ Petition No. 3174 of 1991 and a copy of the said order was furnished & was before the Collector, Prakasam district; and what is important, the 4th respondent was not impleaded as a party in the said Writ Petition No. 3030 of 1991. The direction of this Court in its order dated 6-3-1991 was to all the respondents and the Government was one of them. Therefore, the Collector, Prakasam district was in error in acting in haste without obtaining instructions from the 1st respondent herein i.e., the Government of Andhra Pradesh. The 2nd respondent in his note dated 3-3-1991 was circumspective enough to observe that "as per the Government orders issued in G.O.Ms. No. 776, F & A (Fish-II) Dept., dated 31-12-1990 the extension of lease to Sri D. Mastan cannot be granted unless the Government issued specific direction in this regard". That was prior to the order of this Court to the 1st respondent herein i.e., the Government, dated 5-3-1991. Therefore, after the order of this Court, the Collector, Prakasam district ought not to have rushed through the matter without taking care to obtain specific instructions from the Government. Therefore, the order of the Collector, Prakasam district dated 27-3-1991 in so far as it purported to deal with and reject the application of the 4th respondent is without jurisdiction and contrary to the order of this Court dated 5-3-1991 in Writ Petition No. 3174 of 1991 directing the 1st respondent herein to consider the representations of the 4th respondent herein. The Collector cannot forestall the issue before the 1st respondent herein by himself deciding the matter. I am also of the view that the Collector of Prakasam district had no jurisdiction to grant the lease in favour of the petitioner for the entire Fasli year 1400 i.e., from 1-7-1990 because the said G.O.Ms. No. 776 dated 31-12-1990 had no retrospective effect. The grant of lease by the Collector by his order dated 27-3-1991 in favour of the petitioner is an executive act and it can be set aside by the 1st respondent pursuant to the consideration of the representation of the 4th respondent in compliance with the directions of this Court in Writ Petition No. 3174 of 1991. The petitioner cannot complain that he had no notice or opportunity because the 4th respondent filed Writ Petition No. 5647 of 1991 questioning the order of the Collector dated 27-3-1991 granting the lease in favour of the petitioner herein. The petitioner filed a Caveat anticipating the said Writ Petition and in his presence the said Writ Petition was disposed of by this Court on 22-4-1991. The petitioner did not seek any specific directions from this Court that it should also be heard by the 1st respondent herein. The petitioner also did not make any representation to the Government and it knew through out that several representations of the 4th respondent were before the Government. So far as the extension of lease in favour of the 4th respondent for the year 1400 Fasli is concerned, the petitioner herein has no locus standi whatsoever and if the Government decided to extend the lease as sought for by the 4th respondent, there was no question of the petitioner getting a fresh lease for the said year. As already held by me earlier, the Collector of Prakasam district had no jurisdiction to consider the representation of the 4th respondent and to grant the lease in favour of the petitioner for Fasli 1400 without the 1st respondent taking a decision on the application of the 4th respondent as per the directions of this Court.
22. In this connection, the observations of the Supreme Court in Board of Mining Examination v. Ramjee, AIR 1977, SC 965, as regards application of the principles of natural justice are to be kept in view. The Supreme Court in that case observed as follows:-
"Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter.
XXX XXX XXX But then we cannot look at law in the abstract or natural justice as a mere artifact. Nor can we fit into a rigid mould the concept of reasonable opportunity.
XXX XXX XXX These general observations must be tested on the concrete facts of each case and every minuscule violations do not spell illegality. If the totality of circumstances satisfy the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures."
In U.P. Junior Doctors' Action Committee v.. Dr. B. Sheetal Nandwani, AIR 1991, SC 909, the Supreme Court decided, even though the persons affected i.e., those who were admitted in post graduate medical courses, were not before it, as follows:-
"We are alive to the situation that the persons who have taken admission on the basis of the M.B.B.S. results are not before us. The circumstances in which such benefit has been taken by the candidates concerned do not justify (attraction of the application of rules of natural justice of being provided an opportunity to be heard. At any rate now we have at the instance of the U.P. Government ordered the selection examination to be held, admission on the basis of M.B.B.S. results cannot stand. We accordingly direct the admissions, if any, on the basis of M.B.B.S. results granted after the impugned orders of the High Court shall stand vacated and the Principals of the medical colleges of U.P. arc directed to implement the direction forthwith."
On the facts of the present case also, I am satisfied that the order of the 1st respondent impugned in this Writ Petition cannot be faulted on the ground that principles of natural justice or fair play were violated.
23. The learned counsel for the petitioner does not question the general power of the 1st respondent to grant fishing rights in its tanks on lease. He contends that in view of the said G.O. Ms. No. 776 dated 3142-1990, the Government acted arbitrarily in extending the lease in favour of the 4th respondent by one year and that the 4th respondent had no right to have the lease extended. In view of the peculiar facts and circumstances of this case, I am of the view that the Government did not act arbitrarily in extending the lease in favour of the 4th respondent. The compelling facts in favour of the 4th respondent are (i) that there was a cyclone in May, 1990 which disabled the 4th respondent from taking his fish; (ii) that he initially applied in May, 1990 itself for releasing the water so as to enable him to catch the fish and only because no decision was taken thereon, thereafter he sought extension of the lease period; (iii) that even prior to the issuance of the said G.O. Ms. No. 776 he represented to the Government for extension of lease and thereafter also, on the basis of the pre-existing facts and circumstances of his case; (iv) that the District Level Committee at its meeting held on 28-7-1990 attended by two of its three members agreed to extend the lease in favour of the 4th respondent and that the District Level . Committee at that time had the authority to do so; and (v) that the fish in the said tank were sown and nurtured by the 4th respondent and therefore belong to him just as the mineral mined or extracted from earth and lying on the land belong to the mining lease bolder. The 4th respondent in his counter affidavit stated that lessees who were similarly situated as he was and affected by the said cyclone of May, 1990 in Nellore district submitted representations to the Chairman, District Level Committee of the Nellore district for extension of their lease by one year i.e., for Fasli year 1400 and that they were granted the extension and that the Chairman of the said District Level Committee in his Re. No. 1452B/89 dated 6-9-1990 informed the Director of Fisheries of the. same and that the said lessees were permitted to exercise the fishing rights during Fasli 1400. This fact was not denied by the petitioner. I am therefore satisfied that the 1st respondent did not act arbitrarily or unreasonably in extending the lease in favour of the 4th respondent by one year. However, because of the delay in disposing of the representations of the 4th respondent the present the present complications have arisen. I also find from the file of the 2nd respondent that there were several telegrams from the Director of Fisheries to him for submitting immediately the files relating to Konidena P.W.D. tank from 26-4-1991 onwards. But on the telegram of 26-3-1991 the 2nd respondent endorsed on 27-3-1991 "may lie over till confirmation letter comes" and on the telegram dated 28-3-1991 he endorsed on 29-3-1991 "submitted to the District Collector for favour of kind perusal. The Konidena file may please be returned so as to enable me to send the same to D.F., Hyd". It is not necessary for me to comment on the same.
24. The learned counsel for the 4th respondent contends that under the said G.O. Ms. No. 776 dated 31-12-1990 the District Collector is not empowered to pass orders granting fishery rights by way of leases and that he is only the confirming authority. In support of this contention, the learned counsel relies on the Circular Memo No. 13823/C2/90 dt. 16-1-1991 of the Director of Fisheries. He submits that reading the said G.O. Ms. No. 776 and the said Circular Memo together, it would become clear that the 2nd respondent is the authority to grant the lease in respect of the tank in question and not the Collector of Prakasam district. It is not necessary for me to deal with this contention because on the facts of the present case I hold that the Collector, Prakasam district had no authority or jurisdiction to consider or dispose of the application of the 4th respondent for extension of the lease.
25. For the reasons stated above, the Writ Petition is liable to be dismissed. However, as the extended period of the lease granted in favour of the 4th respondent by the 1st respondent in its Memo dated 15-5-1991 expired on 30-6-1991 and the 4th respondent was not allowed to exercise his fishing rights because of the interim orders of this Court in W.P.M.P. No. 9178 of 1991 made on 29-5-1991, it would be but fair and reasonable to direct the 1st respondent to extend the lease in favour of the 4th respondent upto 30-9-1991 to enable him to catch the fish in Konidena P.W.D. tank which he would have done but for the interim directions of this Court. The 4th respondent states that pursuant to Memo dated 27-5-1991 of the 2nd respondent, he already paid the lease amount and that a lease deed dated 30-5-1991 was also executed in his favour for the extended period i.e., upto 30-6-1991. In the circumstances therefore respondents 1 to 3 are directed to extend the lease in favour of the 4th respondent and permit him to fish in the Konidena P.W.D. tank till 30-9-1991 or such later reasonable period as the facts and circumstances of the case warrant.
26. Subject to the above directions, the Writ Petition is dismissed. No costs. Advocate's fee Rs. 500/-.