Karnataka High Court
Dr B R Ambedkar Schedule Caste And ... vs State Of Karnataka Rep By Its Director on 4 April, 2008
Author: L.Narayana Swamy
Bench: L Nar! Ayana Swamy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE i DATED THIS THE 4TH DAY OF APRIL, 2008 BEFORE = | a THE HON'BLE MR.JUSTICE L NAR! AYANA SWAMY WRIT PETITION No. 17460 2007(M- RES), Between: 1 AND: DR B R AMBEDKAR SCHEDULE CASTE. AND SCHEDULE TRIBE ~~~ _ FISHERMEN'S PRIMARY CO- OPERATIVE. 7 SOCEITY, DANDINASHIVAR AT & POST DANDINASHIVAR, TQ; TURUVEKERE - | DIST; TUMKUR, REPRESENTED BY iTS SECERTARY SRLRAVIKUMAR, ... PETITIONER (BY SRLV T RAYARADDI, ADV.) STATE OF KARNATAKA REP BY ITS DIRECTOR FISHERIES: DEPARTMENT, GAN DHINAGAR,- BANGALORE 9, DEPUTY SECRETARY . AINMAL HUSBANDARY AND FISHERIES, - DEPARTMENT OF FISHERIES . GANDHINAGAR, BANGALORE 9. -. ASSISTANT DIRECTOR FISHERIES DEPARTMENT, ' TURUVEKRE TALUK, DIST, TUMKUR. 4 KARNATAKA CO-OPERATIVE FISHERIES DEVELOPMENT FEDERATION LTD., I] FLOOR, NEAR MUSLIM HOSTEL, _ COMMERCIAL COMPLEX, SARASWATHIPUR AM, MYSORE, REPRESENTED BY ITS CHAIRMAN, . S KARNATAKA CO-OPERATIVE FISHERIES » DEVELOPMENT FEDERATION LTD., . I FLOOR, NEAR MUSLIM HOSTEL, ne COMMERCIAL COMPLEX, SARASWATHIPURAM, a MYSORE, REPRESENTED BY iTS MA .NAGING, DIRECTOR, oS 6 TURUVEKRE TALUK FISHERMEN AND FISH DISTRIBUTORS CO-OPERATIVE SOCIETY LTD., TURUVEKERE, TALUK, _ TUMKUR DISTRICT, Oo REPRESENTED BY. SECRET ARY. ; .. RESPONDENTS (BY SRLVISHNU BHAT F OR RG). THIS W.P. FE LED PRAYING TO, DIRECT THE RESPONDENTS 1 TO S TO CONSIDER THE CASE OF THE PETITIONER FOR GRANT OF LEASEHOLD RIGHTS IN FAVOUR OF THE PETITIOENR SOCIETY FOR THE SARIGEHALL! LAKE SITUATED AT SARIGEHALLI VILLAGE, - TL TURUVEKERE -DT: TUMKUR AS PER REPRESENTATIONS - PRODUCED AT ANX-C TO G DT. 6.5.2006, 25.10.2007, 13.7.2007 --AND 17.7.2007 RESPECTIVELY, AND GRANT INTERIM ORDER TO DIRECT THE R1 TO 5 TO DEFER THE GRANT OF LEASEHOLD _ RIGHTS IN FAVOUR OF THE R6. This writ petition after hearing and reserved for orders and "coming on pronouncement of orders before the Court today, Court made the following: ORDER
This writ petition is filed seeking to quash. the resolution dated 25/10/2007 passed by the st 'respondent t granting - leasehold rights in favour of the 6% respondent 4 and to 'direct granting of leasehold rights in fayour of the petitioner,
2. The petitioner. is a 'soc ociety. registered under the Karnataka Cooperative Soc jeties. Act, 1959 having its registered office at Dandinashivar, Taluka Taravekere, District Tumkur. The main object of the society is. 3 to obtain leasehold rights of the ponds, tanks and lakes situated within Dandinashiva Hobli, of Turuvekere 7 Paluk for the purpose of fishi culture. The petitioner society consists: ot more than 100 members who belong to
- Scheduled Castes and Scheduled Tribes, and are unemployed.
. The petitioner is also a member of Fisheries Development ._- Federation Ltd., The area of operation of petitioner society is . a restricted only to Dandinashivara Hobii.
. 3. It is the further case of the petitioner that it has given representation to the third respondent on 6/5/2006 to grant 4 4 leasehold rights to the petitioner society in respect of Saragehalli Tank situated at Saragehalli, Taluka Turuvekere, Distziot in its bye-laws. Subsequently, i the petitioner gave representations dated 25/10/2006, 25) 1/2007 and :3/7/ 2007 to the 5t respondent - "Karnataka Cooperative Fisheries Development Federation Ltd., at Mysore. Since no action has been taken, the petitioner made one more representation to third respondent --- "Assistant 'Director, : Fisheries Department, Turuvekere on 17/742007. "The petitioner submitted that he is eligible and qualified for consideration of its application and he has a priority for grant of leasehold rights in respect of the tank in question. se In this regard, the petitioner has relied upon 7 Government Order dated 28/1/2006 which gives priority to the
- petitioner society in the matter of allotment of fishing leasehold Tights it. being a member of the 5 respondent Federation.
4, The 6t respondent submitted that it is also a 7 Cooperative Society by name Turuvekere Taluk Fishermen and Fish Distributor's' Cooperative Society Ltd., at Turuvekere, { Tumkur District. The 6 respondent approached this: Court in W P No.11610/2007, which came to be allowed strceting ¢ the i view of the said order, the St respondent has granted leasehold. right of the lake in question to the 6th respondent "by its resolution dated 25/10/2007...
o. I have heard the. learned counsel f for the parties Sri. Mallegowda. H. RB. Learned counsel. who 'argued on behalf of the petitioner submits that. 'hough this Court in W P No.11610 /2007- directed the - respondents to consider the application of the 6m 'respondent the authorities were still bound to- follow the Government Order dated 28/1/2006, to consider the prior ty and pending applications and not to allot e the leasehold 'rights without passing any order on the "application made by the petitioner. The action of the respondents is 5 illegal and liable to be quashed. The learned | courisel for the 5 respondent submits that first priority is given s. te. itself and if this respondent does not wish to carry on the . business, then it has to prefer, out of the priorities provided in the Government Order. The 5th respondent has made an offer to the petitioner society. Petitioner by its letter dated 27 / 12/2008, | a expressed its unwillingness to carry out fishing business and therefore on the basis of the said letter the leasehold rights of S the tank has been given to the 6th respondent. ft is , therefore, | submitted that the petition lacks merit and iable to 'be rejected as neither provision of the Government Order 'ner provisions of Karnataka Irrigation: Act have 'been violated. The learned counsel for the 6h 'respondent submits that after exhausting option of the petitioner, the 5h respondent has granted leasehold rights, the 6t respondent nas s been carrying on the business and at this Stage if pra yer "of the petitioner is allowed, the 6% respondent will be put to 'hardship hence prays to reject the writ ; petition. oS wes 6. J have given my anxious consideration to the a . * contentions urged by the respective parties as aforesaid. The petitioner has made representation on several dates since from January 2006. 'The petitioner is eligible and qualified for allotment of leasehold rights. By the representation dated { 1/9/2007 (Annexure-E) the petitioner has made it clear that in the meeting held on 10/1/2007 it has resolved to pay the lease . : 7 amount as well as arrears. By a further representation dated 13/7/2007 (Annexure-F) the petitioner has requested | the Sth'. respondent to transfer leasehold rights i in their favour as S per the ; decision at agenda No.9 taken by the: 5a respondent in its monthly meeting dated 21/2 f 2007. 'Therefore, it is clear that since 2006 the petitioner society has. 'been making several request to the 5th respondent to ieasc the tank in their favour. Despite the same, . the 5a respondent has granted the said rights in favour of the am * respondent only y on the basis that a direction is issued by this Court i in w P No. 11610/2007. It is to be made clear here: itseit 'that 'either pendency of the petitioner's . application before the 'St respondent for grant of leasehold rights in respect of the very tank or the guidelines mentioned in .
: the Government Order dated 28/1/2006 were not brought to the a notice of this Court in W P No.11610/2007 either by the 6% ion respondent or by the St respondent. What is ordered in W P No, 11610 /2007 is to consider the request of the 6t respondent.
That does not mean that the authorities should not follow the \ guidelines mentioned in the Government order or that ¢ ney are not liable to consider the pending application of the petitioner, the petitioner and that of the 6% respondent a and decided 1 ther on merits.
7. The contention of the 5th : "respondent is that the petitioner has refused the offer made | to it to take the leasehold right. by its letter dated 27 / 12/ 2006. 'Letter - dated 27/12/2006 is produced by. the. RS which discloses that permission is sought to pay 'the lease amot int + making it clear that they have not agreed to pay the arrears. in the letter the petitioner society has made it clear that if the leasehold right for 2006-07 is given to the. Societ - they are prepared to pay the lease amount.
: Nowhere in | the said letter the petitioner society has refused to . accept. the offer of allotment of leasehold rights in respect of arigehadli 'Tonk. Therefore, the contention of the 5tb respondent _ hat the petitioner has refused the offer made to it is without any "basis and has to be rejected.
8. The Government Order dated 28/1 12006 is in the form of guidelines while allotting the leasehold rights, of the tank m forest, lake, river etc., Reference No. 7 of the said + Government order dated 19/12/1989 which enables the Fisher ry Department to lease the tank in favour of SC/ ST unemployee graduates who obtained training in fishing cultire for 'a. period of 7 years subject to conditions, prescribed cunder - Section 592 of the Karnataka Irrigation "Act 1966. | ~~ Paragraph No.2 of the Government Order. dats ed 28/1 i 12006 contemplates that only registered society under th xe Sth respondent are preferable to get the leasehold right for fishing. " Sub-clause (2) of Paragraph No.2 prescribes that seciety of the village where the tank is situated should be given pricrity over the outsiders and item No.3 of the : Paragraph No.2: further prescribes that if there is competition _between more societies then the village where the society "concerned situates should be preferred over the outsider. The on - preference should be given to the society situated in the village, ~ -Hobli and then to Taluka. In view of the said preference, it is clear that the society having its jurisdiction within the tank area 10 has got priority over the others. In the instant case, 'the petitioner society is situated within Dandinashivora Hobii of - ., Sarigehalli Tank, having area of operation of that hobit only. In | view of these factual aspects, the petitioner society has got. priority since its area of operation 1 in respect of the Hobli of | Dandinashivara within which Sarigehali Tank situates. Hence the impugned action of the 5m respondent granting leasehold rights in favour of 6% respondent is not in accordance with the Government Order, reterred te above. ~
9. The teamed cor unsel for sth respondent has placed reliance on Ww Pp No. 30150/ 1998 and connected matters disposed of on 23/ 10 / 1998. wherein the petitioners' claim for the leasehold wight was . rejected on the ground that they did not . have fundamental right to contract with the third respondent. 'The said order is of no assistance since the question of priority "was not the point for consideration in the said matter.
10, In the said Government order, there is a reference of W ~ . No.8 197 /99 and connected matters disposed of on 29/11/2000 where the Court was concerned with the ' 12 strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, : 7 social, economic and political, shall inform aul the institutions of the national life. Article 39(b) again speaks of f ownership, and: | control of the material resources of "the comin unity are so | distributed as best to subserve the common good. 'Clause (c) says that operation of the economic c system 'does not result in concentration of wealth: and means sof production to the common detriment. "Article 46 is" a. very ¥ important provision in the Directive Principles of State Poy, which provides for promotion of educational and economic > interest of the weaker section of the . people and in particular Scheduled Caste and Scheduled Tribe. This throws light on the object of the preamble and entire 'scheme « of Constitution in rendering social justice to its people | especially SC and: ST and weaker sections. The Article embodies | the 'concept of distributive justice, which indicates removal of _ eccnomic inequalities and rectifying the injustice resulting from Sia dealings or transactions between unequals in society.
af 13
12. The Supreme Court in various judgments 'pas considered the requirement of social justice as follows:
(1996) 10 SCC 104 para 13 | ee
"13. Social justice is the comprehensive form :
to remove social imbalances by law harmonising the rival claims or the interests of ditferent groups and/or sections in the "social structure or individuals by means 'of whicis, allone. it would be possible to build: up a welfare S tate. "The ideal of economic justice i is to 'make equality of status meaningtui and life worth living at its best removing inequality : of opportunity end of status -- social, economic and political".
_ AMELSBS S 1988 Sc 389 para a (16).
_ "16. Our Constitution permits and even directs the State" to. administer what may be termed 'distributive justice', The concept of distributive
- Me 'fustice in the sphere of law making connotes, inter alia, the removal of economic inequalities and . rectifying the injustice resulting from dealings or "transactions between unequals in society. Law should be used as an instrument of distributive ' 14 justice to achieve a fair division of wealth among the 1 -
members of society based upon the principle".
1997 5 SCC 201 para (26). .
"26. It is now settled legal position that sovial :
justice is a fundamental right and equally evonomic empowerment is a fundamental | right" to the disadvantaged. Article BLA A (j) enjoins that it shall be the duty of every" citizen. to strive towards excellence in all spheres of individual and collective activities sc: that. 'the 'nation constantly rises to higher levels of endeavour and achievement".
(1997) 8 SCC 191 para No, 76) "76. Social and economic democracy is the _ foundation on whicli political democracy would be a * way: of life in the Indian polity. Law as a social engineering. isto create just social order removing inequalities. in social and economic life, socio-
">, economic 'disabilities with which poor people are da anguishing by providing positive opportunities and aon facilities to individuals and groups of people".
[5 1984) SC 1471 para No.29.
"29, In our opinion, there appears to be : some. Mo misapprehension about what actually social justice | is. There is no ritualistic formula or any magical a8 charm in the concept of social. justice. ~ All that it means is that as between two parties if 'a deal is made with one party without. serious detriment to the other, then the Court w ould lean i in favour of the weaker section of the society".
13. The prime goal» and vision, of the Constitution is to secure to all its citizens' ju tice « of social and economic and to promote among them all f aternity assuring the dignity. The mission and vision Lot the preemble will have to be taken priority in governing the State by complying the fulfillment of distributive of justice of. social, cand economic. There shall be a real siststbution of w wealth to the community. The same has been reflected also in Part-IV of the Constitution, which directs the ~ State to take adequate steps in governance of the country since _ they . are fundamental in nature. Fraternal shade of minimum os element of equality or the glorious contents of humanism are the basic principles of this part of the Constitution. In the light of \ 16 the above provisions of the Constitution referred to it is one thing clear that the State in exercise of its power sh all inake all 7 7 its efforts to comply the goal and vision of the Constitution te build fraternal society where its religion, wil he humanism. othe Supreme Court in various decisions referred to above has :
emphasized much on the distributive justice and 'social justice and further held that 'where there will be. conflict between two interest of the parties, 'without serious 5 detriment to the other, the Court would 3 lean in 1 favour of the weaker sections of the | society. The ' Supreme ©. Court int 'the various judgments has held that unless the weaker sections 'especially SC and ST are given an economic and sovial protections, there will be no meaning of eaality and tbe. .
14. In the light of the aforesaid foregoing reasons, the impugned order passed by the respondent No.5 in favour of _ respondent No.6 will have to be tested. In the Government order oo thougii it has not referred to various provisions and judgment of ms t xe Supreme Court, it gave importance to distribution of justice in favour of SC and ST and weaker sections. Social { 17 empowerment has been highlighted much in favour of $c and ST and weaker sections. In the Government onter, the first : 7 priority has been given in favour of the 5th respondent, which, is the Federation whose role is much in leasing out the tanks in. | the State of Karnataka. But it is seen from the materials placed | before me that 5th respondent has acted in an "unfairly manner by not following the guidetines of the Gover viment Order dated 28/1/2006 and the - provis sions cf the Irrigation Act in leasing the tank in question. in favour "of 6a. res spondent. As per the provisions of. Irrigat mn Act and also t the Government order the State Government is the owner in respect of the water in river, tank etc., AS such the State Government is under an obligation to distribute the ownership of the tanks for fishing lease strictly m, in accordance with, tine guidelines enshrined in the Government Order. This is one such case comes to light that 5 respondent has not acted fairly and in accordance with the guidelines.
_ Hence the impugned action on the part of the 5t respondent in 7 passing the Resolution dated 25/10/2007 in favour of the 6t
- respondent is illegal and in contravention of the guidelines of the Government order and also provisions of the Irrigation Act.
18Hence the same is ultra vires the provisions and arbitrary also. The State Government represented by its Director, Fisheries 7 Department, Bangalore will have to be directed to issue strict : :
directions to the 5 respondent to follow the guidelines. while leasing out the fishing rights in accordance with the prioritization. Further such | leasing out of Sshing right will have to be scrutinized by the respondent ~ "Director, Fisheries Department as to whether the same is in . compliance with the Government order end provisions of law.
15. The Resolution | by which the leasehold right is given to the 6t respondent as per 'Annexure- H refers to order W P No. 116 1 /? 2007 'passed by this Court. In the said order, there was - direction: to consider the application for leasehold right.
That has. been: construed by the 5% respondent and granted ; | ieasehold rights in favour of the 6 respondent. The Federation _ must have borne in mind that the directions issued in the writ
-.. petition was to consider the case of the 6 respondent in terms * of 'the Government Order dated 28 /1/2006, which the 5 \ 19 respondent has failed to do. Hence the same is held as bad in law.
16. For the foregoing reasons, = Tyas the following order:
ORDER | | | Writ petition is allowed... nic dated 25 / 10/2007 passed by the oth respondent is hereby "quashed. The respondents 1485 are hereby directed ta. » consider the case of the petitioner for Teasing out. "the fishing right in Saragehalli Tank since the peti toner society comes within the area of operation of Dendinashivara Hobli and also has priority as per the Government Order dated 28 /1/2006.
a Judge