Gnanasekaran Vs. Assistant Director of Fisheries - Court Judgment

In the High Court of Judicature at Madras Dated : 29.10.2013 Coram The Honourable Mrs.Justice R.BANUMATHI and The Honourable Mr.Justice R.SUBBIAH W.A.No.2164 of 2012 and M.P.No.1 of 2012 Gnanasekaran ...Appellant/Petitioner ..vs.1.The Assistant Director of Fisheries, (Aqua Culture).Chidambaram-608 001, Cuddalore Disrict.

2.The Collector, Cuddalore District, Cuddalore.

3.The Tahsildar, Kurinjipadi Taluk, Kurinjipadi, Cuddalore District.

4.The Village Administrative Officer, Serakuppam, Vadalur, Kurinjipadi Taluk, Cuddalore District...Respondents/Respondents Prayer:- Writ Appeal has been filed under Clause 15 of Letters of Patent against the order dated 03.08.2012 made in W.P.No.18175.2012 passed by the learned Single Judge of this Court.

For Appellant : Mr.R.Gururaj For Respondents : Mr.N.Sakthivel, Government Advocate.

JUDGMENT

(Judgment of the Court was delivered by R.SUBBIAH, J.,) Being aggrieved over the order of dismissal dated 03.08.2012 made in W.P.No.18175 of 2012 passed by the learned Single Judge of this Court, the appellant herein/writ petitioner has come forward with the present appeal.

2.The appellant herein filed the writ petition seeking for issuance of a writ of certiorarified mandamus to call for the records and quash the proceedings of the 1st respondent in Na.Ka.No.1053/A/2011, dated 02.07.2012 and consequently, to forbear the respondents from in any manner interfering with the right of the appellant/petitioner to fish in 'Ayyan Eri' in Vadalur, Kurinjipadi Taluk, Cuddalore District till 30.06.2012 or alternatively, to direct the respondents to pay the appellant/petitioner suitable damages.

3.It is the case of the appellant/petitioner that right to fish in 'Ayyan Eri' in Vadalur, Kurinjipadi Taluk, Cuddalore District was used to be auctioned once in every three years and the right to fish commences from 1st July every year and ends on 30th June of next year, in line with the fasli year.

During the year 2009, one Paramasivam was declared as successful bidder.

However, he surrendered the fishing right even before the completion of the auction period.

Hence, on 24.10.2011 fresh auction was conducted for fasli years 1421 - 1423 for 7 tanks in Cuddalore District including 'Ayyan Eri' and in respect of 'Ayyan Eri', four bidders had participated in the auction and the appellant/petitioner was declared as highest bidder.

The appellant/petitioner was given fishing right for the period of faslies from 1421 to 1423 in respect of 'Ayyan Eri' and the lease amount was fixed at Rs.55,101/- per fasli.

So far as the fiRs.fasli is concerned, only eight months period was available to the petitioner for fishing in the said lake since the auction was conducted only in the month of October-2011, after earlier bidder surrendered the fishing right in the mid-way.

The petitioner has also paid the lease amount of Rs.55,101/- for the fiRs.fasli period, besides paying another sum of Rs.2,755/- towards 5% of lease mount to Tamil Nadu Fishermen Welfare Board.

For this purpose, a lease agreement was also signed by the appellant/petitioner.

Pursuant to the same, the appellant/petitioner was allowed to fish for the fiRs.fasli.

As the next fasli commences from 01.07.2012, the appellant/petitioner paid another sum of Rs.55,101/- on 20.06.2012 by means of a demand draft.

Thereafter, the appellant/petitioner was issued with the impugned proceedings dated 02.07.2012 signed by the 1st respondent on 06.07.2012, canceling the lease granted in favour of the appellant/petitioner, stating that a complaint has been given to the 2nd respondent in respect of the lease granted to him.

The appellant/petitioner was not informed about the particulars of the complaint received by the 2nd respondent.

Another reason stated in the impugned proceedings is that the appellant/petitioner has not removed the name board of the earlier lessee.

Hence, the appellant/petitioner filed the writ petition seeking to quash the impugned proceedings issued by the 1st respondent.

4.The 1st respondent has filed a counter stating that for the fasli years 1419-1421 ie., from 01.07.2009 to 30.06.2012, auction was conducted for leasing out the fishing rights in 'Ayyan Eri' by closed tenders on 25.02.2010 and in the said auction, nine bidders had participated.

One Thiru.Senthilkumar quoted highest bid of Rs.2.01 lakhs, but he did not come forward to remit the amount in time.

Hence, opportunity was given to one Thiru.Paramasivam, who was the second highest bidder, to take the fishery lease of 'Ayyan Eri' for the fasli years 1419-1421 ( ie., 01.07.2009 to 30.06.2012) at the rate of Rs.1.80 lakhs per fasli.

Subsequently, the said Paramasivam had paid the leased amount for the fasli year 1419 (ie., 01.07.2009 to 30.06.2010).The said Paramsivam had also paid the lease amount for the next fasli ie., 1420 (ie., 01.07.2010 to 30.06.2011).but he did not come forward to remit the lease amount for the fasli year 1421 (ie., 01.07.2011 to 30.06.2012).Hence, notice was sent to him asking him to pay the lease amount.

But, he had stated that he suffered loss in the fishing and he was not able to pay the lease amount for the fasli year 1421.

Hence, in order to avoid the loss to the Government, fresh auction was called for in respect of the period from fasli 1421 to fasli 1423.

The Village Administrative Officer, Serakkuppam made publicity through 'Tom Tom'.

The fresh auction was conducted on 24.10.2011 for the fasli year 1421-1423 (ie., 01.07.2011 to 30.06.2014) for fishing right in respect of 'Ayyan Eri'.

Four bidders participated in the said auction.

Since the appellant/petitioner was the highest bidder, who quoted a sum of Rs.55,101/- per fasli, he was given fishing right for the fasli years 1421-1423.

An agreement was also made between the lessor and lessee.

In the said circumstances, the 2nd respondent forwarded a complaint received from one Mr.Thangarasu Ex M.L.A, residing at Serakkuppam, near ayyan Eri, alleging that auction in respect of 'Ayyan Eri' was conducted improperly without giving wide publicity to the public and loss has been caused to the Government and a fresh auction should be conducted.

Further, it was stated in the said complaint that the name board of the earlier lessee was not removed and no name board of the present lessee was installed at the banks of the lake.

In fact, the complaint received by the 2nd respondent reveals that there is loss of Rs.1.25 lakhs to the Government.

Therefore, it was decided to cancel the lease granted in favour of the appellant/petitioner and to conduct a fresh auction by giving wide publicity.

5.After hearing both side, the learned Single Judge has dismissed the writ petition filed by the appellant herein observing that the circumstance that led to the cancellation of the lease granted to the appellant/petitioner had been satisfactorily explained by the respondents.

Hence, the present appeal.

6.We have carefully heard the learned counsel for the appellant as well as the learned Government Advocate appearing for the respondents and perused the materials available on record.

7.On perusal of the materials available on record, We find that the appellant herein/petitioner was declared as successful bidder in the auction held on 24.10.2011 by the respondents for fishing right in 'Ayyan Eri', for a period of three years viz., fasli years 1421-1423 ie., for the years 2011-12, 2012-13 & 2013-14 and the three year lease period ends on 30.06.2014.

The lease amount was fixed at Rs.55,101/- per fasli.

The appellant/petitioner has also paid the said amount of Rs.55,101/- for the fiRs.fasli and he has also paid a sum of Rs.2,755/- towards the payment of 5% of the lease amount to the Tamil Nadu Fishermen Welfare Board and the same was accepted by the respondents and the appellant/petitioner was allowed to fish in the lake for the fiRs.fasli.

For the next fasli, when the appellant/petitioner sent the lease amount of Rs.55,101/- through Demand Draft, the same was returned by the respondents stating that the 2nd respondent has received a complaint from one Thangarasu Ex M.L.A., alleging that the auction was conducted improperly without giving wide publicity to the public and thus, a loss of Rs.1.25 lakhs has been caused to the Government.

8.It is the submission of the learned Government Advocate that the complaint received by the Department would reveal that there was a loss of Rs.1.25 lakhs to the Government and therefore, it was decided to cancel the lease granted to the appellant/petitioner and to conduct a fresh auction by giving wide publicity.

9.Though it has been submitted on the side of the respondents that there was a loss to the tune of Rs.1.25 lakhs to the Government, no material was produced before this Court to substantiate the same.

Of course, comparing to the auctin for the previous fasli, bid amount of Rs.55,101/- is very low amount.

But, there is no material to substantiate the loss to the Government.

Further, there is no instruction to the Government Advocate from the Department as to whether any action has been taken against the OfficeRs.who had accepted the amount of Rs.55,101/- as lease amount, which according to the Government is a very low amount.

Above all, We are of the opinion that Ex M.L.A.Thangarasu is not a participant in the auction.

When that being so, the authorities ought not to have cancelled the tender, that too after having accepted the lease amount by executing a necessary lease deed in favour of the appellant/petitioner.

10.Moreover, We find that before negating the request of the appellant/petitioner with regard to the fishing right for the second fasli year, proper opportunity was not given to the appellant/petitioner to put forth his contention.

The appellant/petitioner is also continuing his fishing in the lake in view of the interim stay granted by this Court pending this appeal.

We are of the opinion that now only 8 months period is there for the completion of the third fasli year and at this juncture, even if a fresh auction is conducted, the successful bidder will get only a short period to fish in the lake for the fiRs.fasli year.

Therefore, We are of the opinion that it would be appropriate to direct the appellant/petitioner to pay the lease amount of Rs.55,101/- each for the 2nd and 3rd fasli with 18% interest, within a period of three weeks from the date of receipt of a copy of this order.

11.In view of the above, the writ appeal is allowed and the order dated 03.08.2012 made in W.P.No.18175 of 2012 passed by the learned Single Judge is quashed and the appellant/petitioner is directed to pay the lease amount of Rs.55,101/- each for the 2nd and 3rd fasli year with 18% interest, within a period of three weeks from the date of receipt of a copy of this order.

On such payment, the respondents are directed to permit the appellant/petitioner to fish in the lake till 30.06.2014.

In case of any default in making the payment by the appellant/petitioner, the respondents are at liberty to proceed further in accordance with law.

Further, the respondents are entitled to auction the fishing rights for the forthcoming faslis 2014-2015 and the period thereafter.

It is made clear that the appellant is not entitled to seek for any further extension either on the ground of this litigation or other grounds.

Consequently, connected miscellaneous petition is closed.

There is no order as to costs.

(R.B.I,J.,) (R.P.S.,J.,) 29.10.2013 Internet: Yes / No Index : Yes / No Copy to 1.The Assistant Director of Fisheries, (Aqua Culture).Chidambaram-608 001, Cuddalore Disrict.

2.The Collector, Cuddalore District, Cuddalore.

3.The Tahsildar, Kurinjipadi Taluk, Kurinjipadi, Cuddalore District.

4.The Village Administrative Officer, Serakuppam, Vadalur, Kurinjipadi Taluk, Cuddalore District.

R.BANUMATHI, J., and R.SUBBIAH, J., ssv Pre-delivery Judgment in W.A.No.2164 of 2012 and M.P.No.1 of 2012 29.10.2013