1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:15-12-2011 CORAM: THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN WP(MD)No.7685 of 2011 And MP(MD)No.1 of 2011 S.Muthu Krishnan :Petitioner -Vs- 1.The District Collector, Camp Office, Virudhunagar. 2.The Commissioner, Sivakasi Panchayat Union, Sivakasi. :Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorari, calling for the records pursuant to the impugned order of the second respondent dated 23.6.2011 in Na.Ka.A2/4083/2009 and quash the same. For Petitioner :Mrs.G.Lakshmi Gopinathan For Respondent-1 :Mr.K.P.Krishnadoss, Government Advocate. For Respondent-2 :Mr.A.Muthukkaruppan ORDER The petitioner has come up with the above writ petition, challenging an order of the second respondent, calling upon the petitioner to stop exercising his fishing rights from a Kanmai. 2.I have heard Mrs.G.Lakshmi Gopinathan, learned counsel for the petitioner, Mr.K.P.Krishnadoss, learned Government Advocate for the first respondent and Mr.A.Muthukkaruppan, learned counsel for the second respondent. 3.The second respondent conducted an auction on 6.1.2011, for the grant of fishing rights in respect of several Kanmais for the fasli year 1420. In respect of Thiruthangal Sengulam Kanmai, the petitioner became the highest bidder. The auction was confirmed in favour of the petitioner by the proceedings of the second respondent dated 22.6.2011. But by an order passed on the next day viz., 23.6.2011, the second respondent directed the petitioner to stop fishing with effect from 30.6.2011. Challenging the said order, the petitioner is before this Court. 4.The second respondent has filed a counter affidavit admitting the fact that a tender notification was published on 27.12.2010 and a public auction was held on 6.1.2011. The second respondent has also conceded in the counter that the petitioner became the highest bidder in respect of Thiruthangal Sengulam Kanmai and that his bid was confirmed by the proceedings dated 22.6.2011. But according to the counter filed by the second respondent, the fishery rights licensed to the petitioner were for the fasli year 1420, viz., from 1.7.2010 to 30.6.2011 and that there was a delay in confirmation of auction, on account of the notification of the election to the State Assembly. The Model Code of Conduct was in force from 1.3.2011 to 16.5.2011. Therefore, the Panchayat Union Council could not meet and confirm the auction. According to the second respondent, this resulted in the delay of nearly 5 months in issuing the confirmation order. The https://hcservices.ecourts.gov.in/hcservices/ 2 respondent has stated further that on 21.6.2011, the Minister of Information Technology inspected the place and found contamination of the water in the Tank. In pursuance of his orders to clean the tank, the first respondent sanctioned an amount of Rs.10 lakhs on 14.7.2011. Consequently, the respondent had to order the stoppage of fishing rights with effect from 30.6.2011. According to the second respondent, the stoppage is justified in view of the fact that the period of license itself came to an end on 30.6.2011. 5.I do not know whether the tank in question is really stinking or not But the manner in which the second respondent has dealt with the matter, is certainly stinking. This is seen even from the dates and events, which are presented as follows:- Period of license - 1.7.2010 to 30.6.2011 Date of auction notification - 27.12.2010 Date of Auction - 6.1.2011 Date of Panchayat Union Council Resolution - 22.6.2011 Date of confirmation of auction - 23.6.2011 Date of revocation of license - 23.6.2011 6.The above sequence of dates and events is more eloquent in demonstrating the arbitrariness of the action of the second respondent than anything else. At the outset, the second respondent ought not to have conducted an auction after a lapse of six months from the date of commencement of the period of license for which the auction was conducted This first illegality was further complicated by the second respondent, by confirming the auction after a further period of 5 months from the date of the auction. Adding the fuel to fire, the license was revoked within one day of the confirmation of auction. Therefore, the auction of the respondents is highly arbitrary and unfair. 7.The impugned order as well as paragraph-5 of the counter affidavit proceed on the basis of an inspection by the Minister of Information and Technology. But he has nothing to do with the Panchayat, except that the Panchayat is in his Constituency. Even assuming that he could take an action in public interest, the impugned order proceeds on the basis that the inspection by the Collector and the Minister happened on 21.6.2011. If that is so, there was no necessity for confirming the auction on 22.6.2011 and thereafter revoking the license on 23.6.2011. 8.To add to the confusion, it is stated by the respondents that the first respondent allotted an amount of Rs.10 lakhs from out of the Panchayat Funds on 14.7.2011 for cleaning the Tank. But even before that the license has been cancelled. Therefore, it is a clear case of abuse of power and an arbitrary action on the part of the respondents. Therefore, I am of the view that the petitioner should be permitted to exercise his rights till 21.6.2012, since a period of one year from the date of confirmation of auction, would expire on the said date. 9.But there is one impediment for allowing the petitioner to exercise his fishing rights till 21.6.2012. The impediment is that the Revenue Divisional Officer, Sivakasi appears to have issued an order in terms of https://hcservices.ecourts.gov.in/hcservices/ 3 Section 133 of the Code of Criminal Procedure to prevent public nuisance Therefore, without knowing the ground reality, the petitioner cannot be granted the relief of enjoying the fishery rights for six months, ignoring the order passed under Section 133 Cr.P.C. Hence, I am of the view that the petitioner can be granted only the relief of compensation. 10.The petitioner has stated in his affidavit that he has already spent a sum of Rs.86,000/- for undertaking fish culture. He has produced the proof to show that he had spent the money. Therefore, instead of allowing the petitioner to enjoy the fishing rights, it would be appropriate to direct the respondents to compensate the petitioner for their illegal action. 11.In view of the above, the writ petition is allowed, granting compensation to the petitioner in a sum of Rs.86,000/-. The second respondent shall pay the amount of Rs.86,000/- to the petitioner as compensation for the unlawful termination of the fishery rights. The amount shall be paid within a period of four weeks from the date of receipt of a copy of this order. No costs. Consequently connected miscellaneous petition is closed. SD/- Assistant Registrar (AS) / TRUE COPY / Sub Assistant Registrar To: 1.The District Collector, Camp Office, Virudhunagar. 2.The Commissioner, Sivakasi Panchayat Union, Sivakasi. +1CC to The Special Government Pleader. SR.No.44063. Svn RP/22.12.2011/3P/4C. Order in WP(MD)No.7685 of 2011 And MP(MD)No.1 of 2011 15-12-2011 https://hcservices.ecourts.gov.in/hcservices/