IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 04-09-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.3104 of 2001 P.Jeyaraj .. Petitioner. Versus 1.The State of Tamil Nadu, represented by its Secretary, Department of Animal Husbandry and Fisheries, Fort St.George, Chennai-600 009. 2.The District Collector, Madurai District, Madurai. 3.The Assistant Director, Department of Fisheries, 6, Abdul Khadar Khan Street, Madurai-625 002. 4.The Commissioner, Uttamapalayam Panchayat Union, uttamapalayam Taluk, Theni District. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, calling for the records of the respondents culminating in the "impugned notification" issued by the second and third respondents in Daily Thanthi Vernacular Tamil Daily (Madurai Edition), dated 12.02.2001, regarding fishery rights in three tanks, namely, Thamaraikulam, Karunkattankulam and Kazhuneerkulam, all situate in Uttamapalayam Taluk, quash the same and direct the respondents to conduct a public auction in accordance with "The Tamil Nadu Panchayats (Lease and Licensing of Fishery Rights in water sources vested and Regulated by Village Panchayats and Panchayat Union Councils) Rules, 1999" for lease of fishery rights in three tanks namely Thamaraikulam, Karunkattankulam and Kazhuneerkulam, all situate in Uttamapalayam Taluk. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.M.Sundar For Respondents : Mr.T.Seenivasan (R1, R2 & R4) Additional Government Pleader Mr.V.Subbarayan (R3) O R D E R Heard the learned counsel appearing for the petitioner and the learned counsels appearing for the respondents. 2. The petitioner had stated that the fishery rights in water sources like tanks etc., under the control of the Village Panchayats or the Panchayat Union Councils, are now regulated and they are governed by The Tamil Nadu Panchayat (Lease and Licensing of Fishery Rights in Water Sources vested and Regulated by Village Panchayats and Panchayat Union Councils), Rules, 1999 (hereinafter referred to as `the Rules'). The Rules have been made under the rule making power enshrined in Section 242 of the Tamilnadu Panchayats Act, 1994. Prior to the making of the Rules, the granting of fishery rights was governed by the Government Order in G.O.Ms.No.33, Department of Animal Husbandry and Fisheries, dated 27.2.95. According to the said Government Order and the Rules, no person shall fish or do anything pertaining to fishery in the water sources under the control of the Village Panchayats or Panchayat Union Councils, without a licence or lease from the concerned Village Panchayats or Panchayat Union Councils. Such a lease should necessarily be granted by holding a public auction. The fourth respondent is the competent authority to hold the auction of the fishing rights under Rule 12 of the Rules. 3. The petitioner has further stated that the respondents on 14.12.2000, had issued a public notification by `tom tom' inviting sealed tenders for auction of fishery rights in Thamaraikulam, karunkattankulam and Kazhuneerkulam, situated in Uttamapalayam Taluk. The Public notification was issued through `Madurai District Fish Farmers Development Agency'. The second and third respondents are the ex-officio President and the Chief Executive Officer of the said agency, respectively. Pursuant to the said notification, the petitioner had obtained a tender application form by paying Rs.100/-, on 18.12.2000. The application form had stipulated 29.12.2000, as the closing date for the submission of tender. It had also stated that the sealed tenders would be opened on 29.12.2000, at 4.00 p.m, in the office of the third respondent. Later, it was informed that the last date for submission of tenders had been re-scheduled as 8.1.2001. On 8.1.2001, the petitioner was https://hcservices.ecourts.gov.in/hcservices/ told that the auction was being adjourned indefinitely, without assigning any reasons. He had also learnt that the three tanks for which fishery rights were to be auctioned would be unilaterally allotted to some farmer, without following the due procedures established by law. Thereafter, the petitioner had sent a representation, dated 24.1.2001, to the second respondent and to the other authorities concerned. Thereafter, the petitioner had received a communication from the third respondent, on 7.2.2001, bearing reference No.Na.Ka.4412/E/2000, stating that the auction of fishery rights for all the three tanks stated above would not be held. While so, the second and third respondents had issued a notification, on 12.2.2001, published in the newspaper `Daily Thanthi', inviting applications from eligible candidates for selecting "appropriate candidates", for the grant of fishery rights in the said tanks. In such circumstances, the petitioner had filed the present writ petition before this Court, under Article 226 of the Constitution of India. 4. A counter affidavit had been filed by the third respondent denying the allegations made by the petitioner. It has been stated that the tanks in question are not under the control of any Panchayat or Panchayat Union Council. The ownership of fishery rights of the Government in water bodies is exercised by several departments like Revenue Department, Fisheries Department, Forestry Department, the Hindu Religious and Charitable Endowments Department, and the autonomous bodies like local bodies depending on the directions issued by the State Government. The Government had issued an order in G.O.Ms.No.1370, RD & LA, dated 16.5.61, reclassifying the public water bodies. In respect of Clause I(A), the fishery rights of the provincialised water bodies should be disposed of by the Revenue Department in consultation with the Fisheries Department, in accordance with G.O.Ms.No.1749 Agriculture, dated 21.6.72. The Government had directed that the Fisheries Department could conduct fishing operations in provincial water bodies instead of the disposal by the Revenue Department. The Tamilnadu Inland Fisheries Lease and Licence Rules, 1972, enlisted the provincialised water sources in Tamilnadu in Annexure I(A) and I(B) stipulating the lease and licence conditions. The three tanks concerned are irrigation tanks, irrigated by the Public Works Department Irrigation System. Hence, they fall under Clause 1-A as provincialised sources, Controlled and Developed by the Fisheries Department. The said tanks along with 11 other tanks had been transferred from the Revenue Department to the Fisheries Department, as per G.O.No.463, Forest and Fisheries Department, dated 17.4.82. In G.O.Ms.No.169, Rural Development (P3) Department, dated 15.8.99, rules have been framed as per the Tamilnadu Panchayat Act, 1999, in supersession of the Tamilnadu Lease and Licencing of Fishery Rights in Panchayats, Panchayat Union Rule 1983. Accordingly, all the three tanks mentioned by the petitioner https://hcservices.ecourts.gov.in/hcservices/ in the present writ petition are provincialised tanks and they do not come under the control of any Panchayat or Panchayat Union Council. As such the fourth respondent does not have the jurisdiction or competence to conduct the auction of the fishery rights in respect of the tanks in question. 5. It has also been stated that the Madurai District Fish Farmers Development Agency, an organisation of the Tamilnadu Government, Registered under the Societies Act, is functioning from the year 1978, as sanctioned, vide G.O.Ms.No.274, Forest and Fisheries Department, dated 29.3.78. The District Collector is the Chairman of the Fish Farmers Development Agency and the Assistant Director of Fisheries is the Chief Executive Officer of the said agency and its functions are governed by the Managing Committee constituted by the Government. The Commissioner and Director of Fisheries, Chennai, exercise technical control over the agency. The Fish Farmers Development Agency Plays a vital role in popularising scientific methods of fish culture and it paves way for rural employment and in the development of rural economy. Scientific training in fish culture is imparted on fish farmers by allotting ponds and tanks, specifically for the purpose of fish culture. Hence, the writ petition filed by the petitioner is devoid of merits and therefore, liable to be dismissed. 6. The learned counsel appearing on behalf of the third respondent had filed a counter affidavit, dated 29.8.2008, which is as follows: "The fishery rights of the disputed tanks, namely, Tamaraikulam, Karunkattankulam and Kazhuneerkulam in Theni District are vested in Fisheries Department and these tanks were proposed for leasing out under "Fish Farmers Development Scheme" by selection of fish farmers by the Assistant Director of Fisheries, Madurai District. Since the fish farmers selection process was stayed by the Hon'ble High Court of Judicature at Madras in W.M.P.No.4297 of 2001, the selection has been stopped. Due to changing circumstances, the Government have ordered to transfer the fishery rights of these tanks under "Intensive Inand Fish Culture and Marketing Scheme" to Assistant Director of Fisheries, Theni District from Assistant Director of Fisheries, Madurai District and all the above said three tanks are to be surrendered back to the Assistant Director of Fisheries, Vaigai Dam under "Intensive Inland Fish Culture and Marketing Scheme". https://hcservices.ecourts.gov.in/hcservices/ Under this scheme the fishery rights of these tanks should be leased out by sealed tender system to the highest bidders as per G.O.Ms.No.33, Animal Husbandry and Fisheries Department, dated 27.2.1995. Therefore, the Assistant Director of Fisheries, Madurai will not select fish farmers for the above said three disputed tanks under "Fish Farmers Development Scheme" in Madurai District but these tanks will be leased out by the Assistant Director of Fisheries, Vaigai Dam in Theni District to the highest bidders by inviting tenders, as demanded by the petitioner. Accepting the undertaking given by the third respondent, the Hon'ble High Court of Judicature may be pleased to dispose the W.P and W.M.P. To enable leasing out the disputed tanks by inviting sealed tenders by the Assistant Director of Fisheries, Vaigai Dam." It is submitted by the learned counsel appearing on behalf of the third respondent that in view of the change in circumstances, the writ petition has become infructuous. 7. The learned counsel appearing on behalf of the petitioner has not refuted the claims made on behalf of the third respondent. 8. In such circumstances, the writ petition is dismissed as infructuous. No costs. Csh Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Secretary, Department of Animal Husbandry and Fisheries, Fort St.George, Chennai-600 009. 2.The District Collector, Madurai District, Madurai. https://hcservices.ecourts.gov.in/hcservices/ 3.The Assistant Director, Department of Fiesheries, 6, Abdul Khadar Khan Street, Madurai-625 002. 4.The Commissioner, Uttamapalayam Panchayat Union, uttamapalayam Taluk, Theni District. 1 cc to Mr.M.Sundar, Advocate, SR.50149 1 cc to the Government Pleader, SR.50489 nsm (co) dv/20.10. Writ Petition No.3104 of 2001 https://hcservices.ecourts.gov.in/hcservices/