HON’BLE SRI JUSTICE P.S. NARAYANA WRIT PETITION No.17786 of 2009 Date: November 18, 2009 Between: Pollapudi Fishermen Co-operative Society, Rep. by its President Kolamgari Dhanaraju. …Petitioner And 1. The Government of A.P., Rep. by its Principal Secretary, Food, Agriculture and Fisheries Department, Hyderabad and 5 others. …Respondents * * * ORDER: The writ petition is filed for a writ of Mandamus declaring the action of the 5th respondent in issuing the impugned Proceeding No.44/A/2004, dated 18.8.2009, is illegal, arbitrary and contrary to G.O.Ms.No.776, Food and Agriculture (Fisheries) Department, dated 31.12.1990, and consequently direct the respondents to continue lease in favour of the petitioner’s society in respect of Alluru Tank, Varini Tank, Puruni Tank, Indupuram Tank, situate at Kovvuru Mandal, Pottisreeramulu Nellore District and pass such other suitable orders. 2 Sri Movva Chandrasekhara Rao, learned counsel representing the petitioner, had taken this Court through the contents of the affidavit filed in support of the writ petition and also would maintain that though there is some controversy relating to the name of the 6th respondent, the very society being bogus society, this may not seriously alter the situation, especially, in the light of the fact that the president is shown as the self same individual. The counsel also would maintain that inasmuch as G.O.Ms.No.776, Food and Agriculture (Fisheries) Department, dated 31.12.1990, had not been followed, a positive direction is being prayed for. The learned counsel also had taken this Court through the letters, resolution, the receipts, copy of cheques, copies of challans, copy of the lease deed, G.O.Ms.No.776, the order made in C.R.P.No.2942 of 2009 and the order No.44/A/2004 and the representations. 3. The learned Assistant Government Pleader for Fisheries had taken this Court through the contents of the counter-affidavit and would maintain that in the light of the specific stand taken in the counter- affidavit this is not a fit matter to be interfered with and the writ petition to be dismissed. 4. Sri K. Ananda Rao, learned counsel representing respondent No.6 would maintain that no doubt it is stated that V. Veeraraghavulu is the president of 6th respondent society, but 6th respondent is not correctly described and in the absence of the necessary party, the writ petition is liable to be dismissed. The learned counsel also pointed out to the relevant portions of the lease deed and would maintain that the petitioner is having alternative remedy. The counsel also would further maintain that the lease period in favour of the petitioner came to an end and, hence, there is no enforceable legal right and the preferential rights, if any, specified in G.O.Ms.No.776 cannot be said to be mandatory and in the light of the facts and circumstances, the writ petition to be dismissed. 5. The relief prayed in the writ petition already had been specified supra. It is the case of the writ petitioner that the petitioner society is a fishermen Co-operative society consisting of 372 members and the members of the society are solely depending on the tanks leased out to it to eke out their livelihood. The tanks were leased out to the society since the date of its inception i.e., 14.01.1957. The leasehold rights for fasli 1418 was awarded vide proceedings No.70/A/2008, dated 11.12.2008, by the Assistant Director of Fisheries pursuant to the note orders of the District Collector, Nellore District, dated 16.8.2008. The society also passed resolution to request authorities for continuation of lease relating to Alluru Tank, Varini Tank, Purini Tank, Indupur tanks situate at respective villages of Alluru, Varini, Purini and Indupur. The total lease amount was fixed at Rs.62,500/- and the same was paid in terms of the lease agreement. Fish seedlings and prawn seedlings were purchased from the Fisheries Department on 07.11.2008 to a tune of Rs.70,000/-. Apart from that, the society spent substantial amount towards iron mesh, security etc., and spent about Rs.8,00,000/-. Fish were not catched in view of the pendency of the suit and the tanks are under the possession of petition society. 6. Further it is stated that during the pendency of lease period one B. Pollamma filed a suit for specific performance of the agreement dated 05.11.2007 said to have been executed by the petitioner society and sought for temporary injunction. The petitioner filed counter denying the execution of agreement of sale and the same is a forged document. It is also stated that as per the terms of lease agreement sub-lease is impermissible. The trial court granted injunction and the appellate court vacated the same. This Court declined to interfere with the order passed by the District Court. The 6th respondent obtained fishing rights of the tanks under the lease of the petitioner society in illegal manner. The 5th respondent had issued proceedings on 18.8.2009 conferring the leasehold rights in favour of the 6th respondent without notice or intimation to the petitioner society. It is stated that the petitioner society paid the entire lease amount for the year 2009-2010 on 07.7.2009 for continuation of their lease by making representations. The respondents, having accepted the same, conferred fishing rights in favour of 6th respondent contrary to G.O.Ms.No.776 and other G.Os. issued in this regard. As per clause 2 of the G.O. the period of lease shall be three years with an optional clause for extension for a further period of two years in the event of society making such request. The question of granting lease to others would arise only in the absence of genuine fishermen co-operative society. No inquiry had been conducted by respondents 1 to 5 to identify the genuine co-operative society before granting lease in favour of the 6th respondent. Without determining leasehold rights of the petitioner society, the impugned proceeding was issued contrary to rules framed in this regard. In such circumstances, the writ petitioner approached this Court by filing the present writ petition. 7. G.O.Ms.No.776, Food and Agriculture (Fisheries) Department, dated 31.12.1990, reads as hereunder: GOVERNMENT OF ANDHRA PRADESH ABSTRACT Fisheries- Inland Fisheries review on allotment of Fishery Rights in the water sources in the State- Orders issued. FOOD AND AGRICULTURE (FISH.II) DEPARTMENT G.O.Ms.No.776 Dated 31st December 1990 Read the following:- 1. G.O.Ms.No.1764, Food and Agriculture (Fish.II), Dept. dated 30.11.1971. 2. G.O.Ms.No.2641, Food and Animal Husbandry and Fisheries Dept. dt.27.7.1987. 3. G.O.Ms.No.497, Food and Agriculture (Fish.II) Dept. dated 27.6.88. 4. G.O.Ms.No.568, Food and Agriculture (Fish.II) Dept. dated 23.7.88. 5. G.O.Ms.No.723 to 738 Food and Agriculture (Fish.II) Department, dt.14.9.88. 6. G.O.Ms.No.879, Food and Agriculture (Fish.II) Dept. dt.17.12.88. 7. G.O.Ms.No.250 and 251, Food and Agriculture (Fish.II) Dept. dt.17.4.89. 8. Govt. Memo No.70830/Fish.II/88-2, Food and Agriculture Dept. dt.3.1.89. 9. G.O.Ms.No.839, Food and Agriculture (Fish.II) Dept. dated 5.10.89. 10. D.O. Letter No.Spl.B/ 89-78, General Administration (Spl.B) Dept. dt.12.12.89 and 22.12.89. 11. From the Commissioner of Fisheries, A.P. Hyderabad Letter No.387/02/90, dated 20.2.90. @@@@ ORDER: Inland Water Sources comprise irrigation tanks, reservoirs, lakes, irrigation canals, swamps, estuaries, back waters, breeder ponds, river courses and drains. Prior to 1987 fishing rights in all the tanks and water sources were belong disposed of in the following order of preference:- (i) Cooperative Societies of Fishermen or Harijans engaged in fishing on the basis of average of five years rental or department development proceeds- as the case may be). (ii) Panchayat Boards or Local Bodies. (iii) Private individuals on the basis of bids at public auction. for a period of three years, through the system of licensing and levy of fees on fishing nets, tackles and crafts. These tanks and water sources were under the control of different agencies at different points of time viz., Local Bodies, Fisheries Department, Public Works Department and Revenue Department. During 1971 collection of fee was abolished even though the licensing system was continued. During 1986, the Government appointed an Expert Committee to go into all matters relating to fisheries i.e., estimating the fishing wealth, potential for development, increase of production, development of markets, etc., while so, the Fishermen Cooperative Societies and Welfare Federations submitted representations to Govt. putting forth their grievances and requesting inter alia, for allotment of kuntas and tanks, etc., to fishermen Cooperative Societies on long lease basis for a period of 10 years. Orders were also issued requesting the Director of Fisheries to send proposals for delicensing the 16 reservoirs and tanks which were under licensing system so as to exploit fishing wealth in all the reservoirs (whether under the licensing system or otherwise) in a big way by introducing latest reservoirs fishing technology available within the country and also abroad. The Fishermen Organizations and Associations and also representatives of the public have approached the Government for revival of the licensing system for the major reservoirs so as to protect the interests of the Fishermen Community. The Government reviewed the matter and pending finalization of a policy in regard to development of fishing of a policy in regard to development of fishing in the major reservoirs, issued orders directing that the licensing system be permitted on an annual basis to individual fishermen in all the reservoirs including Godavari and Krishna barrages/reservoirs except Srisailam, Somasila and Sriramsagar Reservoirs for which the Andhra Pradesh Fisheries Development Corporation has been asked to prepare comprehensive proposals for exploiting the fishery wealth and also rearing fish on a scientific basis so as to increase production. The Government have examined in detail the existing policy of allotment of fishery rights in the water sources in the State. The following orders are issued in cancellation of orders issued in G.Os. (1) to (9) read above with immediate effect. 1. To re-transfer all the irrigation tanks, which were under the control of Fisheries Department prior to 1987 from Panchayat Raj Department to Fisheries Department, The Hussain Sagar lake which was transferred to Tourism Development Corporation is retransferred to Fisheries Department. 2. Procedure to be followed: (a) The period of lease shall be three years, with an optional clause for extension for a further period of (2) years in the event of the Fishermen Cooperative Society making such a request provided they satisfy the rental conditions fixed by Government. (b) While leasing, first preference should be given to the genuine Fishermen Cooperative Societies. In case of absence of genuine Fishermen Cooperative Societies or unwillingness on the part of the identified Fishermen Cooperative Society to take up exploitation at the rentals fixed, next preference should be given to Gram Panchayat/Municipality followed by public auction and departmental exploitation. For categorizing a genuine Fishermen Cooperative Society, the residence of the members of the Fishermen Co-operative Society, should be certified by Mandal Revenue Officer and this residence should necessarily be in the area of the operation of the society. (c) The Collector of the district shall be the authority for fixing the rentals and he shall take into consideration the productivity of the water sources in consultation with the Fisheries Department. The confirmation of the rentals shall be by the authorities as indicated hereunder: Sl.No. Amount of lease/auction bid amount Authority to confirm lease/open auction 1 Rs.3,000/- and less Asst. Director of Fisheries 2 Rs.3,000/- to Rs.6,000/- Revenue Divisional Officer of the concerned area 3 Rs.6,000/- and above District Collector 5. Procedure regarding tanks vested in the Gram Panchayat under Gram Panchayats Act, 1964:- All the sources which stand vested in the Gram Panchayats under the Gram Panchayats Act, 1964, shall continue to be with the respective Gram Panchayats for the purpose of disposal of Fishery rights. The following procedure shall be adopted in leasing out the sources. (a) The lease period should be for a period of three years with an optional clause for extension for a further period of two years in the event of the Fishermen Cooperative Society making such a request provided they satisfy the Gram Panchayats regarding rental conditions as may be prescribed from time to time. First preference should be given to genuine Fishermen Cooperative Societies in consultation with Fisheries Department. However, the Gram Panchayats shall not offer the following categories of sources to the Fishermen Co- operative Societies before proceeding with auction. (i) Tanks earmarked by the District Collector for drinking water purpose and for washermen; (ii) Non-ayacut tanks fed by either natural sources or by man made sources; and (iii) Other non-ayacut sources. (b) Where the source is not excluded from the general procedure of offering it first to a Fishermen Cooperative Society and where either such society is absent or unwilling to exploit the source, the Gram Panchayat itself may dispose it of by public auction. In case, the rental is not remunerative departmental exploitation may be taken up by the Gram Panchayats. (c) In respect of tanks excluded from the procedure of offering to the Fishermen Cooperative Society, the Gram Panchayat concerned can straight away put them to auction after following the procedure laid down for fixing the upset price. However, tanks earmarked by the District Collector as drinking water sources and washerman tanks shall not be exploited for the fishery wealth. 4. For fixation of rentals/upset price in respect of tanks and kuntas vested in Gram Panchayat, a Committee comprising Revenue Divisional Officer, District Panchayat Officer and Assistant Director of Fisheries will assess (a) the productivity of tanks (b) charging of the tanks with fish seed and (c) other potentialities of the tanks etc., and fix the rentals/upset price. 5. For conducting open auction, the following procedure would be followed: Sl.No. Lease amount/auction bid amount Authority to confirm lease/ auction 1 Rs.500/- & below Executive Officer (Panchayat) 2 Rs.500/- to Rs.1,000/- Mandal Revenue Officer 3 Rs.1,000/- to Rs.3,000/- Dist. Panchayat Officer 4 Rs.3,000/- to Rs.10,000/- Revenue Divisional Officer of particular division 5 Rs.10,000/- & above District Collelctor 6. Major Reservoirs (7 number) 7. Nagarjunasagar,Nizamsagar, Kadam: Reservoirs should be earmarked into definite zones and upset price fixed on the basis of productivity of fishery wealth and to lease out these defined zones to the Fishermen Cooperative Societies abutting these zones defined zones. The Director of Fisheries is requested to complete the process of zoning immediately and in the meanwhile licenses may be issued with fee. The fee proposed for craft and tackled will be as follows: Sl.No. Craft/Tackle Fee proposed 1 Gill net upto 100 feet or part thereof 80/- 2 Cast net 50/- 3 Basket Trap (Basket upto length of 10 ft.) 40/- 4 Rod and Lines for each head 10/- 5 Long lines with hooks up to maximum length of 100 ft. or part thereof 75/- 6 Triangular net or Thopla 50/- 7 Dragnet upto 100 ft. 80/- 8 Thappa 5/- 9 Coracle 10/- 10 Nava, Shoe Dhonie, Dub out nava etc. 20/- b) Srisailam, Somasila, Sriramsagar and Lower Manair. The fishing rights in these reservoirs are research to Andhra Pradesh Fisheries Corporation Ltd. The Corporation shall prepare project report after a specific survey of potential in consultation with Central Inland Capture Fisheries Research Institute, Barracpore and Central Inland Fisheries Institute, Cochin. Till such time, these reservoirs will be put to public auction by the A.P. Fisheries Corporation and auction amount shall be remitted to Andhra Pradesh Fisheries Corporation. 7. Medium and Minor Reservoirs: With the cancellation of G.O.Ms.No.497, Food and Agriculture (Fish.II) Department, dt.27.6.88 all remaining 95 medium and other reservoirs except (7) major reservoirs listed above stand transferred to the Fisheries Department. Out of these in the following (13) reservoirs licensing system with fee shall be introduced. (1)Cumbum (2) Nellore Tank (3) Sarvepalli (4) Mid Pennar (5) Upper Pennar (6) Bhyravanitippa Project (7) Araniyar (8) Pocharam (9) Koilsagar (10) Palair (11) Upper Manair (12) Dindi (13) Musi. The fee proposed for craft and tackle will be as detailed for major reservoirs. The remaining small and medium reservoirs not be covered under licensing scheme will be leased out to Fishermen Cooperative Society (if included in their area of operation) or will be put to public auction. 8. Lakes, River Courses, Canals and Swamps: All other water sources, which are presently covered under licensing system without fee, licensing system with fee shall be introduced. The fee proposed for craft and tackle will be as detailed for major reservoirs. 9. Apportionment of rentals:- Out of the lease rentals remitted into the Government Treasure, 25% of the amount should be apportioned for fishermen welfare fund to be spent towards fishermen housing providing share capital, subsidy for craft and tackle supplied to the members of the Fishermen Co-operative Societies and other identified fishermen. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) MOHAN KANDA SECRETARY TO GOVERNMENT 8. Counter-affidavits had been filed by respondent No.3 and respondent No.6 as well. A reply-affidavit had been filed and additional counter-affidavit had been filed. 9. In the counter-affidavit filed by third respondent, the Assistant Director of Fisheries, it is stated that the petitioner society was registered with No.K-40 on 01.9.1957 as Marine Fishermen Co-operative Society Limited, Ponnapudi, which mainly confines to marine activity only. During 1991, the New Alluru Fishermen Co- operative Society Limited, Alluru had been registered by the Department of Fisheries under No.F-84 duly bifurcating the area of operation of the Marine Fishermen Co-operative Society Limited, Ponnapudi. The area of operation of the New Alluru Fishermen Co-operative Society Limited is confined to Alluru Gram Panchayat and it is a genuine society registered under Andhra Pradesh Co-operative Act by the Assistant Director of Fisheries/Ex-Officio Deputy Registrar of Co-operative Societies, Nellore. There are 100 members existing in the society and all of them belong to Schedule Caste and Schedule Tribes community and depend on fishing for their livelihood. Since the New Alluru Fishermen Co-operative Society Limited, Alluru, is having the area of operation of Alluru Gram Panchayat. The Alluru Tank located in Alluru Gram Panchayat had been given on lease as per the G.O.Ms.No.776, Food and Agriculture (Fish.II) Department, dated 31.12.1990, to the New Alluru Fishermen Co-operative Society Limited, Alluru, for the fasli 1419 i.e., the year commencing from 01.7.2009 to 30.6.2010. 10. It is further stated that the petitioner society had not paid the lease amount for the fasli 1419 to the Department of Fisheries and not obtained CF 106 receipt. It is also stated that since the Alluru Gram Panchayat area was bifurcated from the area of operation of Marine Fishermen Co-operative Society Limited, Ponnapudi, though the Alluru Tank located in the area of operation of the New Alluru Fishermen Co-operative Society Limited, Alluru, because of the innocence of the members of the New Alluru Fishermen Co-operative Society Limited Alluru, the Fishermen Co-operative Society Limited, Ponnapudi had continued to take the Alluru Tank on lease in the name of Fishermen Co-operative Society Limited, Ponnapudi allowing the members of the New Alluru Fishermen Co-operative Society Limited to conduct fishing in the Alluru Tank along with them. The Marine Fishermen Co-operative Society Limited, Ponnapudi had no right to conduct fishing after the completion of fasli year by 30.6.2009 in any tank given on lease by the Department. The Ponnapudi Society had been registered as Marine Fishermen Co- operative Society Limited and their area of operation confines to fishing in sea water. The Alluru Tank is 34 Kms. away from Ponnapudi not located in the area of operation of Marine Fishermen Co-operative Society Limited, Ponnapudi. 11. Further it is stated that the averment that a suit filed by B. Polamma, is no way concerned to the New Alluru Fishermen Co-operative Society Limited, Alluru and B. Polamma is not a member of the New Alluru Fishermen Co-operative Society Limited, Alluru. During the last fasli year 1418 (i.e., from 01.7.2008 to 30.6.2009) the President, Marine Fishermen Co-operative Society Limited, Ponnapudi had given the Alluru Tank on sub-lease to a local person of Alluru village against the rules. The local person, who had taken the Alluru Tank on sub-lease, had not allowed the innocent members of the New Alluru Fishermen Co-operative Society Limited to conduct fishing in the tank. 12. It is also averred that the proceedings No.44/A/2009, dated 10.8.2009, issued by the 5th respondent in favour of the New Alluru Fishermen Co-operative Society Limited, Alluru, is correct and it was issued as per the G.O.Ms.No.776, and leased out the Alluru Tank to the New Alluru Fishermen Co-operative Society Limited for the fasli 1419, since the tank is in the area of operation of the New Alluru Fishermen Co-operative Society Limited, Alluru. 13. Further it is stated that the fishery lease of Varini, Purini and Indupur tanks will be given to the Ponnapudi Fishermen Co-operative Society as usual whenever the Managing Committee approaches with the Managing Committee Resolution for fasli 1419. It is also stated that Alluru Tank is located in the area of operation of the New Alluru Fishermen Co-operation Society Limited, Alluru, and they may be allowed to continue the lease in favour of the New Alluru Fishermen Co-operative Society Limited, Alluru, as it was given by the 5th respondent vide Proceedings No.44/A/2004, dated 18.8.2009, already for the fasli 1419 in favour of the New Alluru Fishermen Co- operative Society Limited, Alluru, in Sri Potti Sreeramulu Nellore District. This is the stand taken in the counter-affidavit of R-3. 14. The Fisheries lease proceedings given by the District Collector, Sri Potti Sreeramulu Nellore District, Proc.No.44/A/2009, dated 18.8.2009, G.O.Ms.No.776 aforesaid and certificate of registration and bye-laws of New Alluru Fishermen Co-operative Society Limited, Alluru, also had been placed before this Court. 15. In the counter-affidavit of R-6 several facts had been narrated and the copy of the certificate of registration, copy of the proceedings in Rc.No.FCS/2009, copy of the Proceedings in Rc.No.Tanks/2009, copy of the receipt, copy of the lease deed, copy of the order of fishing permit and copy of the Proceedings in Rc.No.Tanks/2008 also had been placed before this Court. Several of the facts had been denied. 16. It is stated that in obedience to the Government instructions to take appropriate steps for registration of New Fishermen Co-operative Society at Allur, the Assistant Director of Fisheries, Nellore, had issued suitable instructions to the Junior Co-operative Inspector (Fisheries), Nellore, who in turn submitted draft proposals for organization of New Allur Fishermen Co-operative Society of Ponnapudi Society. But, out of 97 members, 25 had died and the Junior Co-operative inspector took action for the remaining members. Accordingly, respondent No.6 provisionally registered with 50 members on 26.11.1991 and final registration was done on 02.12.1991. 17. Further it is stated that since the date of its registration, respondent No.6 society is pursuing the issue about the fishing rights over P.W.D. Tank at Allur. Despite the fact that the petitioner society was authorized to catch fish in the sea only, but not in the tanks, the writ petitioner high handedly and without having any right managed the Department to catch fish in 4 tanks viz., Allur PWD Tank, Indupur Tank, Purini Tank and Varini Tank in Nellore District. Allur PWD Tank is situated at Allur where 6th respondent society is situated and the remaining 3 tanks are situated at Vidavalur Mandal. On considering the grievances of the fishermen of 6th respondent society, the Department had taken a decision to delete Allur PWD Tank from the operation of other Fishermen Co-operative Societies and allotted the same to 6th respondent society. 18. It is also stated that the petitioner society was allotted fishing rights over Allur PWD Tank at Allur for one year for 1418 fasli which was commenced from 01.7.2008 and ended by 30.6.2009. After expiry of the said lease, the Department made a tom tom on 10.7.2009 by intimating to everybody with an intimation that the lease for fishing rights over PWD Tank at Allur to the writ petitioner society was ended by 30.6.2009 and from 01.7.2009 onwards the lease for catching of fish was not granted to anybody. The 6th respondent society issued a legal notice to the authorities not to grant any lease for catching of fish to the petitioner society, which is a marine society. On 21.7.2009, the Commissioner of Fisheries issued a memo to the Joint Director of Fisheries, Nellore, to take necessary action in this regard. Accordingly, the Fisheries Development Officer, Padugupadu, Nellore, issued Proceedings vide Rc.No.FCS/2009, dated 13.8.2009, with a request to respondent No.6 to pass necessary