Andhra Pradesh High Court - Amravati
K. Samba Siva Rao vs The State Of Andhra Pradesh on 18 November, 2022
HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION Nos. 25089 and 26522_2021
COMMON ORDER:
Since the point involved in these two writ petitions is one and the same, I deem it appropriate to dispose of these two writ petitions by way of this common order.
2. W.P.No.25089 of 2021 is filed to declare the action of the 6th respondent in issuing the proceedings dated 23.09.2021 directing the 8th respondent-Grampanchayat to send proposals to lease out the tanks situated in the Grampanchayat to Sri Adarsha Harijana Fishermen Co-operative Society Limited (for short 'the Society'), 9th respondent, as illegal and arbitrary and contrary to his own proceedings in memo dated 28.05.2021, and consequently, to direct the official respondents to conduct public auction for the grant of leasehold rights of the Grampanchayat tanks.
3. The case of the petitioners is that they are the residents of the 8th respondent-Grampanchayat. There are ten tanks in the jurisdiction of the Grampanchayat and the income derived from those tanks is the major source of the Grampanchayat. As per 2 NV,J W.P.Nos. 25089 and 26522 of 2021 G.O.Ms.No.343 dated 10.04.1978 and G.O.Rt.No.546 dated 25.03.1999, the Grampanchayat has been granting leasehold rights of the tanks in favour of the Society. But, contrary to the conditions of the lease, the Society is giving the tanks on sub-lease to one Gorrepati Rajesh for the last six years. Apart from that, the Society is always due in payment of lease amounts to the Grampanchayat. Therefore, the Grampanchayat passed a resolution No.33 dated 29.06.2021 taking a decision to conduct public auction for granting leasehold rights of the tanks to others and also requested the 5th respondent to issue orders to that effect by narrating the conduct of the Society in violation of the terms of lease apart from violation of the Rules issued in G.O.Ms.No.343 dated 10.04.1978. In pursuance of the said resolution, the Panchayat Secretary of the Grampanchayat also sent a report dated 02.08.2021 to the 4th respondent to issue directions to conduct public auction for granting the leasehold rights of the tanks. In the said report, it is categorically stated that due to non-payment of lease amounts by the Society within the stipulated time, the Grampanchayat is unable to undertake developmental activities. It 3 NV,J W.P.Nos. 25089 and 26522 of 2021 is also the case of the petitioners that the petitioners and other villagers submitted a detailed representation dated 19.07.2021 to respondent Nos.2 and 3 with a request to issue directions to the Grampanchayat not to renew/extend the lease period in favour of the Society and to conduct public auction for granting the leasehold rights of the tanks to others. In view of the above, the 6th respondent issued a Memo dated 28.05.2021 directing the Grampanchayat to send proposals to conduct public auction of the leasehold rights of the tanks by not extending/renewing the lease period in favour of the Society. Pursuant to the said memo, estimations for all the ten tanks were prepared and the same were approved by the 7th respondent also and the Grampanchayat is making efforts to conduct public auction of the leasehold rights of the tanks. Meanwhile, the 5th respondent addressed a letter dated 21.09.2021 to the 6th respondent recommending the case of the Society for the grant of leasehold rights of the tanks in its favour, as the Society is not in due of any lease amount and it has preferential rights as per G.O.Ms.No.343 dated 10.04.1978. Pursuant thereto, the 6th respondent issued proceedings dated 4 NV,J W.P.Nos. 25089 and 26522 of 2021 23.09.2021 directing the Grampanchayat to send proposals to lease out the tanks afresh to the Society contrary to his earlier proceedings dated 28.05.2021. The same is under challenge in the present writ petition.
4. The 6th respondent filed a counter affidavit in W.P.No.25089 of 2021 stating that the Society committed default in payment of the lease amounts within the stipulated time as per the auction conditions from the year 2014-15 to 2020.2021. Therefore, the 6th respondent issued directions to the Grampanchayat to conduct public auction of the leasehold rights of the tanks. It is also stated that on the basis of the report of the 5th respondent that the Society is not due of any lease amounts, the 6th respondent directed the Grampanchayat to lease out the tanks in favour of the Society, by proceedings dated 23.09.2021 contrary to its earlier proceedings dated 28.05.2021. It is further stated that the Grampanchayat by its resolution No.55 dated 06.10.2021 requested the 6 th respondent to fix the upset price for granting the leasehold rights of the tanks through open auction. Accordingly, the 6th respondent requested the 4th respondent to issue necessary instructions for the grant of 5 NV,J W.P.Nos. 25089 and 26522 of 2021 leasehold rights of the tanks in favour of the Society. The 4th respondent vide memo dated 27.11.2021 informed that it shall be the duty of the Grampanchayat to sell the fishery rights to the Society and hence, the 6th respondent is requested to take further action as per the rules issued in G.O.Ms.No.343 dated 10.04.1978 and submit action taken report in the matter. Accordingly, the 6th respondent directed the Panchayat Secretary of the Grampanchayat to send proposals to lease out the tanks to the Society. For the aforesaid reasons, the writ petition is liable to be dismissed.
5. The Society did not choose to file a counter affidavit in the aforesaid writ petition, but filed a memo dated 07.09.2021 stating that the allegations of the petitioners that the Society committed default in payment of the lease amounts, is not true and correct. The Society paid all the lease amounts as directed by the Grampanchayat on or before 27.03.2021. There are no dues towards payment of lease amounts as on today and the same was confirmed by respondent Nos.5 and 6. In view of the same, the Society is entitled for the grant of leasehold rights of the tanks in its favour. It is contended that the resolution passed by the 6 NV,J W.P.Nos. 25089 and 26522 of 2021 Grampanchayat requesting the 6th respondent to fix the upset price and permit to conduct public auction, is illegal and against the rules made in G.O.Ms.No.343 dated 10.04.1978.
6. Pending the aforesaid writ petition, aggrieved by the inaction of the Grampanchayat in not considering the proceedings dated 23.09.2021 issued by the 6th respondent in pursuance of the letter dated 21.09.2021 issued by the 5th respondent, the Society filed W.P.No.26522 of 2021.
7. The 5th respondent filed a counter affidavit in W.P.No.26522 of 2021 wherein it is stated that as per the letter of the 6 th respondent dated 01.09.2021, the 5th respondent sent reply to the 6th respondent about the functioning of the Society and the 6 th respondent is the competent authority to fix the upset price to grant leasehold rights of the tanks of the Grampanchayat to the Society as per G.O.Ms.No.343 dated 10.04.1978. The writ petition is devoid of merits and hence it is liable to be dismissed. 7
NV,J W.P.Nos. 25089 and 26522 of 2021
8. The 6th respondent also filed a counter affidavit in W.P.No.26522 of 2021 reiterating the contentions raised in W.P.No.25089 of 2021.
9. Heard Sri Narasimha Rao Gudiseva, learned counsel for the petitioners in W.P.No.25089 of 2021, Ms. Kalla Tulasidurgamba, learned counsel for the petitioner Society in W.P.No.26522 of 2021, learned Government Pleader for Panchayat Raj, learned Government Pleader for Fisheries, and Sri I. Koti Reddy, learned standing counsel for respondent Nos.7 & 8.
10. Learned counsel for the petitioners in W.P.No.25089 of 2021 would contend that the members of the Society are not residing in the 8th respondent-Grampanchayat and they are not doing fishing activities and after getting the leasehold rights of the tanks in its favour, the Society is giving the tanks on sub-lease to one Gorrepati Rajesh and Pattabhi, who belongs to a forward community, for higher amounts. As such, the Society is acting against the object of G.O.Ms.No.343 dated 10.04.1978 and against the welfare of the members of the Society. The learned counsel 8 NV,J W.P.Nos. 25089 and 26522 of 2021 would also contend that if the Grampanchayat conducts public auction for the grant of the leasehold rights of the tanks, it would fetch from Rs.12.00 lakhs to Rs.15.00 lakhs per year, but the Grampanchayat is granting the leasehold rights in favour of the Society on nominal lease amount of Rs.4.50 lakhs. The learned counsel would submit that the 6th respondent issued a Memo dated 28.05.2021 wherein it is categorically stated that the Society committed default in payment of the lease amounts resulting in financial loss to the Grampanchayat and instructed the Grampanchayat not to extend or renew the lease for a further period in favour of the Society and to conduct public auction of the leasehold rights of the tanks. The learned counsel for the petitioners would contend that four months after issuance of the memo dated 28.05.2021, the 6th respondent issued the present impugned proceedings dated 23.09.2021 without application of mind and contrary to his own proceedings dated 28.05.2021 and adverse to the interest of the Grampanchayat. The learned counsel would also contend that even though the Society committed default in payment of the lease amounts within the stipulated time, 9 NV,J W.P.Nos. 25089 and 26522 of 2021 respondent Nos.5 and 6 directed the Grampanchayat to grant leasehold rights of the tanks in favour of the Society which is against the objectives envisaged under the provisions of the A.P. Panchayat Raj Act, 1994 as well as G.O.Ms.No.343 dated 10.04.1978. The learned counsel, therefore, prays to allow W.P.No.25089 of 2021.
11. Learned Government Pleaders for the official respondents would mainly submit that in view of payment of the lease amounts by the Society and as there are no due of any lease amount as on date, the Society is entitled for the grant of leasehold rights of the tanks in its favour in view of G.O.Ms.No.343 dated 10.04.1978 and the 6th respondent did not commit any mistake in issuing the impugned proceedings dated 23.09.2021. The learned Government Pleaders pray to dismiss W.P.No.25089 of 2021.
12. It is an admitted fact that the Society is a registered Society within the jurisdiction of the 8th respondent- Grampanchayat and has been enjoying the leasehold rights in respect of the tanks situated in the Grampanchayat in accordance with G.O.Ms.No.343 10 NV,J W.P.Nos. 25089 and 26522 of 2021 dated 10.04.1978, more particularly for the period from 2014-2015 to 2020-2021. It is also an admitted fact that the Society has been running its affairs continuously as per the proceedings of the 5 th respondent dated 21.09.2021. The case of the petitioners is that the Society had committed default in payment of the lease amounts within the stipulated time as per the lease conditions and as per the rules issued in G.O.Ms.No.343 dated 10.04.1978. The same was confirmed by the resolutions of the Grampanchayat as well as the proceedings of the 6th respondent dated 28.05.2021. It is also an admitted fact that the Society paid the last instalments of the lease amounts for the period from 2014-2015 to 2020-2021 on 23.07.2021 only which itself indicates that the Society had committed default in payment of the lease amounts. It appears that the Society cleared the entire lease amounts on 23.07.2021 by anticipating that the leasehold rights of the tanks may not be granted in its favour for the years 2021-2022 and 2022-2023 in view of the resolution No.33 dated 29.06.2021 passed by the Grampanchayat and the proceedings issued by respondent Nos.4 to
6. 11 NV,J W.P.Nos. 25089 and 26522 of 2021
13. As seen from the material placed before this Court, it is clear that the 6th respondent, who is the competent authority, fixed the upset price at Rs.5.33 lakhs for granting the leasehold rights of the tanks in favour of the Society for the year 2022-2023 by proceedings dated 22.08.2022. While fixing the upset price, the 6 th respondent also called for estimation of lease amounts in respect of the tanks situated in the Grampanchayat from the Sarpanch, Extension Officer (PR), the 7th respondent and the 5th respondent and accordingly, they submitted estimations. According to them, the estimations are Rs.9,77,000/-, 10,15,000/-, 4,85,301/- and Rs.11,03,200/- respectively. But, the 6th respondent fixed the upset price for the years 2021-2022 and 2022-2023 at Rs.5.33 lakhs.
14. Learned counsel for the petitioners filed a memo dated 12.11.2021 through which sworn affidavits of the ward member of 8th ward, who was elected as Vice President of the subject Grampanchayat, and the husband of the ward member of 5 th ward of the Grampanchayat, were filed. All the deponents in one voice stated that if the public auction is conducted for the grant of the 12 NV,J W.P.Nos. 25089 and 26522 of 2021 leasehold rights of the tanks, it would fetch from Rs.12.00 lakhs to Rs.15.00 lakhs.
15. The contention of the learned counsel for the petitioners is that the Grampanchayat would get meagre amounts due to fixation of the upset price unilaterally without considering the recommendations of the authorities i.e., Sarpanch, Extension Officer (PR) and the 7th respondent and according to them, if the public auction is conducted for the grant of the leasehold rights of the tanks, it would fetch more than Rs.10.00 lakhs towards lease amounts and the same was confirmed by the sworn affidavits of the third parties filed by the petitioners. The proceedings of the 6 th respondent dated 22.08.2021 also would reveal the same fact. As such, the aforesaid contention of the learned counsel for the petitioners can be taken into consideration. The other contention of the petitioners is that the members of the Society are not at all doing fishing activities and they are parting the tanks on sub-lease to others at higher rates contrary to the rules and objects issued in G.O.Ms.No.343 dated 10.04.1978 and on the other hand, it is 13 NV,J W.P.Nos. 25089 and 26522 of 2021 detrimental to the villagers of the 8th respondent- Grampanchayat, is also to be considered.
16. The contention of the learned counsel for the Society that as per the proceedings of the 5th respondent dated 21.09.2021, the Society is in existence and it is having nearly 29 members and they are depending upon the fishing activities and therefore, they cannot be deprived of their leasehold rights of the tanks, is sustainable, in the absence of any evidence adduced by the petitioners to establish that the Society is parting the tanks on sub-lease to others. The other contention of the learned counsel for the Society that as the Society had paid the entire lease amounts that were due to the Grampanchayat on or before 23.07.2021, the Society is entitled for the grant of leasehold rights of the tanks in its favour as per G.O.Ms.No.343 dated 10.04.1978, cannot be sustained, since the Society committed default in payment of the lease amounts within the stipulated time.
17. It is noticed that the Divisional Panchayat Officer, 6th respondent, is the competent authority as per G.O.Ms.No.343 dated 14 NV,J W.P.Nos. 25089 and 26522 of 2021 10.04.1978 to fix the upset price to enable the Grampanchayat to grant leasehold rights either to the Society or to others by way of conducting public auction. But, in the present case, the 6th respondent did not fix the upset price, even though the Grampanchayat requested for fixation of the upset price vide resolution No.33 dated 29.06.2021. In view of the same, the Grampanchayat lost income for the years 2021.2022 and 2022-2023. Therefore, the lethargic attitude and dereliction of duties on the part of the 6th respondent caused financial loss to the Grampanchayat in getting income by way of granting the leasehold rights of the tanks. Learned standing counsel for the Grampanchayat and learned Government Pleaders also complained the same to this Court at the time of hearing the matter. Therefore, this Court by order dated 12.08.2022 directed the 6th respondent to appear before the Court on 26.08.2022 to explain as to why he did not comply with the statutory obligation which casts upon him. Then only, the 6th respondent fixed the upset price on 22.08.2022 which is prior to his appearance before this Court. 15
NV,J W.P.Nos. 25089 and 26522 of 2021
18. In view of the foregoing discussion, this Court is of the opinion that the Society had committed default in payment of the lease amounts and in view of the resolution No.33 dated 29.06.2021 passed by the Grampanchayat as well as the proceedings of the 6th respondent dated 28.05.2021, the Grampanchayat is at liberty to conduct public auction in respect of the leasehold rights of the tanks situated in the 8 th respondent- Grampanchayat.
19. Accordingly, W.P.No.25089 of 2021 is allowed by setting aside the proceedings of the 6th respondent dated 23.09.2021. The 8th respondent-Grampanchayat is permitted to conduct public auction for the grant of leasehold rights of the tanks situated in its jurisdiction within a period of one month from the date of receipt of a copy of this order. Further, the 2nd respondent, who is the Head of the Department, is directed to issue instructions to all the Divisional Panchayat Officers to take steps for fixation of upset price in respect of the tanks situated in their respective Grampanchayats within one month from the date of receipt of request made by the Grampanchayat concerned, failing which, 16 NV,J W.P.Nos. 25089 and 26522 of 2021 necessary penal action will be taken against them. W.P.No.26522 of 2021 filed by Sri Adarsha Harijana Fishermen Co-operative Society Limited is dismissed. No order as to costs in both the writ petitions.
Consequently, miscellaneous applications, if any, pending shall stand closed.
____________________________________ VENKATESWARLU NIMMAGADDA, J 18th November, 2022 cbs 17 NV,J W.P.Nos. 25089 and 26522 of 2021 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION Nos. 25089 and 26522 of 2021 18th November, 2022 cbs