IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 26438 of 2008 Between: Cheruvukommupalem Fishermen Co-operative Society Ltd. Rep. by its President, Tappetla Yogaiah Cheruvukommupalem, Nuzendla Mandalam, Guntur District. ..... PETITIONER AND 1 The Assistant Director of Fisheries Guntur Guntur District. 2 Cheruvukommupalem Gram Panchayat Rep. by its Sarpanch Cheruvukommupalem Village, Nuzendla Mandal, Guntur District. 3 The Divisional Panchayat Officer Narasaraopet Guntur District. 4 District Panchayat Officer Guntur Guntur District. 5 Fishermen Co-operative Society, Tana Annavaram. Rep. by its President, Komma Srinivasa Rao, Nuzendla Mandal, Guntur District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an order or direction or writ more particularly one in the nature of writ of Mandamus or any other appropriate writ declaring the action of the 1st respondent in treating that the Chintakunta Tank situated in the area of operation of the 5th respondent society and requested the respondent No.4 to issue necessary instructions to the respondents 2 and 3 to lease out the Chintakunta Tank in favour of the 5th respondent society as contrary to the provisions A.P. Panchayat Raj Act, 1994 and the Rules governing the lease of Fishery Rights as regards the tanks in a Village, vested with the Gram Panchayat and for a declaration that the impugned proceedings Rc.No.274/B/2008, dated 14-11-2008 issued by the 1st respondent as arbitrary, illegal and in violation of Article 14 and 21 of the constitution of India, and consequently set aside the impugned proceedings and direct the respondents 1, 3 and 4 not to interfere with the preferential right of the petitioner society in leasehold rights in Chintakunta Tank situated within the purview of the Cheruvukommupalem Gram Panchayat as the petitioner society is entitled to take the Fishing Rights in the said tank as the petitioner society fall within the local area contemplated by the Act and the Rules made therein. Counsel for the Petitioner:MR.PRABHU NATH VASIREDDY Counsel for the Respondent No.: GP FOR FISHERIES THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION No.26438 of 2008 ORDER: Aggrieved by the order of the first respondent dated 14-11-2008, in directing the fourth respondent to issue necessary instructions to the Divisional Panchayat Officer and Sarpanch, Cheruvukommupalem Village, to lease out the Chintakunta Tank in favour of the fifth respondent on the ground that the tank was situated in their area of operation, the petitioner has invoked this Court’s jurisdiction under Article 226 of the Constitution of India. Earlier, when the fifth respondent herein approached this Court by way of W.P.No.23086 of 2008, (in which writ petition, the petitioner herein was arrayed as the fifth respondent), this Court, by its order dated 22-10-2008, observed thus: “From the perusal of the Byelaws of the fifth respondent, it is evident that the entire village of CheruvuKommupalem is in its area of operation. The petitioner is said to have been registered subsequent to the registration of fifth respondent. In the Byelaws of the petitioner-Society, the Chintakunta tank of Cheruvu Kommupalem village is included in the area of operation. On the strength of this inclusion, the petitioner claims preferential rights, vis-à-vis, the tank. This Court is of the view that the controversy, as regards the jurisdiction of the petitioner or the fifth respondent over the tank referred to above, needs to be resolved by the Assistant Director of Fisheries, the Functional Registrar, on a representation being made by the petitioner. This Court cannot undertake adjudication of disputed questions of fact, unless it was preceded by any exercise by the authorities concerned. The Writ Petition is disposed of leaving it open to the petitioner to approach the Assistant Director of Fisheries. As and when any representation is made by the petitioner, the Assistant Director of Fisheries shall issue notice to the fifth respondent and decide as to whether Chintakunta tank of CheruvuKommupalem Village is within the area of operation of the petitioner or the fifth respondent. Further steps would depend on such decision. There shall be no order as to costs.” This Court noted that, under the bye-laws of the petitioner herein, the entire village of CheruvuKommupalem was in its area of operation, that the fifth respondent herein had been registered subsequent to the registration of the petitioner, that, in the bye-laws of the fifth respondent, the Chintakunta tank of CheruvuKommupalem Village was included in their area of operation and, on the strength of this inclusion, the fifth respondent herein had claimed preferential rights. With a view to resolve the controversy as regards the jurisdiction of the petitioner herein or the fifth respondent over the tank, the Assistant Director was directed to consider the representation of the fifth respondent. Curiously, the Assistant Director, in the order impugned in the writ petition, did not extract the area of operation of the petitioner- Society. While the order records that he had verified the bye-laws, he, however, noted that the area of operation of the fifth respondent herein was confined to Tana Annavaram Village and Inavolu Village and the Chintakunta Tank situated in the village limits of CheruvuKommupalem Village. Thereafter, he concludes that the Chintakunta tank is situated in the area of operation of the fifth respondent and since they had expressed their willingness to take the tank on lease at the rates as fixed by the Panchayat Raj Department, and as the rule in G.O.Ms.No.343 dated 10-04-1978 required irrigation tanks to be leased out without public auction to the Fishermen Cooperative Society of the local area, the said tank was to be leased to the fifth respondent. The first respondent ought to have examined the bye-laws of the petitioner as also their contention that they were registered prior to the fifth respondent and it is only after he had examined these matters, could he have decided the controversy in question. His conclusions should have been supported by reasons and the order ought to have reflected the contents of the bye-laws of both the societies as also his justification as to how the fifth respondent was entitled to be granted lease though the petitioner-Society was registered prior to the fifth respondent. The impugned order suffers from non-application of mind and is, therefore, quashed. Needless to state that quashing of the impugned order shall not preclude the first respondent from passing an order afresh, based on the objections submitted both by the petitioner-Society and the fifth respondent. Ms M.Vidyavathi, learned counsel for the fifth respondent, requests this Court to fix a specified time frame within which the exercise of reconsideration shall be completed. Learned Government Pleader for Fisheries would submit that a period of six weeks would suffice. While quashing the impugned order, the first respondent is directed to reconsider the matter, and pass an order, in accordance with law, within a period of six weeks from the date of receipt of a copy of this order. The writ petition stands disposed of accordingly. No order as to costs. RAMESH RANGANATHAN,J Dt:05-12-2008 usd