IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE FIFTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 11380 of 2008 Between: Sri Venkateswara Fishermen Co. Operative Society Ltd. Kaja Villge, Movva Mandal, Krishna District. Rep by its President Ch. China Venkateswarlu, s/o. Seshaiah, Aged about 45 years, r/o. Kaja Village, Movva Mandal, Krishna District. ..... PETITIONER AND 1 The District Collector, Machilipatnam, Krishna District. 2 The District Panchayat Officer, Machilipatnam, Krishna District. 3 The Divisional Panchayat Officer, Machilipatnam, Krishna District. 4 The Secretary, Village Secretariat, Kaja Village, Movva Mandal, Krishna District. 5 Uppalapu Subrahmanyam S/o. Venkateswara Rao Kaza Village & Post, Movva Mandal, Krishna Dist. R5 is impleaded as per c.o. dt. 25-6-2009 in WPMP 5074 of 2009 .....RESPONDENTS 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 a writ, order or direction more particularly one in the nature of Writ of Mandamus, declaring the order of the District Collector (1st respondent) vide proceeding in ROC No. 495/2008 Pts.2, dated 15-5-2008 and the consequential auction Notice of the 4th respondent dated 24-5-2008, as bad arbitrary without jurisdiction arbitrary and also contrary to the GO Ms.No. 343 dated 10- 4-1978 and GO Ms.no. 499, dated 25-1-1998 apart from contravention of the directions of the Hon'ble High Court in WP No. 3518/2008 dated 26-2-2008 and also offends Art. 14 and 21 fo the constitution of India and to pass Counsel for the Petitioner:MS.M.VIDYAVATHI Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following : HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.11380 of 2008 ORDER:- Sri Venkateswara Fishermen Cooperative Society Ltd., Kaja village, MovvaMandal, Krishna District represented by its President, filed the present writ petition for issuance of Writ of Mandamus declaring the order of the District Collector (1st respondent) vide proceedings in ROC No.495/2008, Pts:2, dt.15-5-2008 and the consequential auction notice of the 4th respondent dt.24-5-2008 as bad, arbitrary without jurisdiction and also contrary to the G.O.Ms.No.343,dt.10-4-78, and G.O.Ms.No.499 dt.25-1-98 apart from contravention of the directions of this Court in W.P.No.3518/2008 dt.26-2-2008 and also offends Articles 14 and 21 of the Constitution of India and to pass such other suitable orders. 2. While issuing rule nisi on 28-5-2008 this Court in W.P.M.P.No.14746/2008 made the following order:- “The proposed auction may go on. However, neither the bids shall be finalized, nor the fishing rights shall be leased out, to any agency, for a period of three weeks. Post the W.P.M.P. immediately after vacation.” On 9-6-2008 the said interim order granted earlier was continued until further orders. 3. R.5 in the writ petition filed an application W.P.M.P.No.5074/2009 to come on record and the said application was ordered on 25-6-2009. 4. The 1st respondent filed counter affidavit. The Secretary, Village Secretariat, Kaja village, Movva Mandal, Krishna District – R.4 filed W.V.M.P.No.3526/2008 to vacate the interim order. 5. The proposed party who came on record – 5th respondent filed W.V.M.P.No.2181/2009 praying for vacation of the interim order granted in W.P.M.P.No.14746/2008 dt.9-6-2008. 6. When the vacate applications were taken up for herein, the Counsel on record made a request for the final disposal of the writ petition itself and hence the writ petition itself is being disposed of finally. 7. Smt.M.Vidyavathi, the learned Counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the writ petition and also the respective stands taken in the counter affidavits filed by the respondents and would maintain that the 1st respondent, in fact, had not appreciated the scope and ambit of G.O.Ms.No.343, dt.10-4-78 and also G.O.Ms.No.340 PR & RD (Pts.II)Department dt.20-5-88. The learned Counsel would maintain that under G.O.Ms.No.340 PR & RD (Pts.II)Department dt.20-5-88 the Gram Panchayat is empowered to set up a tank for drinking purpose. The aforesaid G.O. – G.O.Ms.No.343. dt.10-4-78 would be applicable even in such a case and without appreciating this clear position, an order without jurisdiction had been made by the 1st respondent which is being challenged in the present writ petition. The learned Counsel also further had taken this Court through Section 85 of the A.P.Gram Panchayats Act, 1964 and also Section 80 of the A.P.Panchayat Raj Act, 1994. The learned Counsel also would maintain that the object of making G.O.Ms.No.343 dt.10-4-78 cannot be defeated either by the Gram Panchayat or by the other respondents by resorting to this method of public auction in the light of the fact that the writ petitioner – Sri Venkateswara Fishermen Cooperative Society Ltd., Kaja village, MovvaMandal, Krishna District, is entitled to the priority rights. The learned Counsel would conclude that in the light of the facts and circumstances especially in the light of the order made in W.P.No.3518/2008, the writ petition to be allowed and appropriate directions to be given to consider the case of the petitioner in terms of G.O.Ms.No.343, dt.10-4-78. 8. The learned A.G.P. for Panchayat Raj while taking this Court through the contents of the counter affidavit filed by the 1st respondent, would maintain that in fact at the instance of the writ petitioner, on a representation made by the writ petitioner, the order under challenge had been made. The learned A.G.P. for Panchayat Raj also would maintain that it is not as though the 1st respondent had not considered the relevant G.O.s especially G.O.Ms.No.343 and also G.O.Ms.No.340 aforesaid and in the light of the convincing reasons which had been recorded by the 1st respondent, inasmuch as, the 1st respondent had interpreted the making of G.O.Ms.No.343 in proper perspective in relation to the Tank in question, the writ petition to be dismissed. 9. Sri M.Prabhakar Rao, the learned standing Counsel representing R.4 would maintain that in the light of Rule 3, it is clear that G.O.Ms.No.343 may be applicable to cases where the Tanks are set apart, this is a case where by virtue of exercise of power under G.O.Ms.No.340 aforesaid, a particular Tank was set apart for the purpose of drinking water purposes and the same would not fall within the purview of G.O.Ms.No.343 aforesaid and hence the priority rights if any which are being claimed by the writ petitioner, cannot be claimed by the writ petitioner, in this particular case and hence the writ petition to be dismissed. 10. Sri Seetharam Chaparla, the learned Counsel representing 5th respondent had taken this Court through the contents of the counter affidavit filed in support of the vacate application W.V.M.P. No.2181/2009. The learned Counsel would maintain that the 1st respondent had taken into consideration all the aspects and made the order. In fact, the writ petitioner, after making the representation having invited this order, now cannot contend that the 1st respondent has no jurisdiction at all to make this order. Even otherwise, the 1st respondent is competent to make such an order. Further the Counsel would maintain that in the light of the clear language of G.O.Ms.No.340, such interpretation which is being putforth by the Counsel for writ petitioner, cannot be accepted and hence the writ petition to be dismissed. The learned Counsel also would explain that the 5th respondent having participated in the public auction and having been the successful bidder and having deposited the amount is unable to enjoy the fruits of such auction and thus his rights are seriously prejudiced. 11. Heard the Counsel on record. Perused the affidavit filed in support of the writ petition and the respective counter affidavits filed by the respondents. 12. The relief which had been prayed for in the writ petition already had been specified supra. The President, Sri Venkateswara Fishermen Cooperative Society Ltd., Kaja village, MovvaMandal, Krishna District had sworn to the affidavit filed in support of the writ petition. It is the case of the writ petitioner that the petitioner was registered with registration No.E-26 in the year 1977 under A.P.C.S.Act, 1964 and the membership of the Society as on today is 54 having an area of operation of 16 tanks which are located in Kaja Gram Panchayat limits and the details of such tanks are as hereunder:- 1) Chinna Nagula Cheruvu 2) Komatigunta Cheruvu 3) Gollagunta Cheruvu 4) Mamidi Cheruvu 5) Malli Cheruvu 6) Lacha Cheruvu 7) Mangala Cheruvu 8) Shoda Cheruvu 9) Rangu Cheruvu 10) Peda Cheruvu 11) Kotta Cheruvu 12) Kalaigunta Cheruvu 13) Gandirevu Cheruvu 14) Gandirevu Gunta 15) Kanchara Cheruvu 16) Nagula Cheruvu. Further it is averred in the affidavit filed in support of the writ petition that from the inception of the Society, the Gram Panchayat leased out the fishing rights in the tanks vested in it without public auction by way of lease as per G.O.Ms.No.343, dt.10-4-78. Thus the petitioner Society with its members are enjoying the fishing rights of the tanks, which are under the jurisdiction of Kaja Gram Panchayat uninterruptedly since all the members of the Society who are Fishermen by caste and profession, eking out their livelihood by the same. It is also stated that two tanks apart from 14 tanks namely Kanchara Cheruvu, Nagula Cheruvu are drinking water tanks which are separated for the purpose of “Drinking Water Supply Scheme”. As and when the Government allotted the funds under “drinking water supply scheme”, the stored water to be lifted out and the fishing rights are leased out to their Society. Whatever the leased amount fixed by the 3rd respondent are being paid and fishing rights are being enjoyed. Further specific stand had been taken that even these two tanks which are earmarked for drinking water purposes, were being leased out by the Gram Panchayat all these years till now. It is also further stated that on the representation of the Vice-President/Upa Sarpanch, Kaja Gram Panchayat, the 2nd respondent issued direction to the 3rd respondent in his proceedings vide Proc.No.115/2008, Pum-2, dt.23-1-2008 for the year 2007-08 wherein directed to conduct public auction by fixing the upset price to catch the fish in the tanks which are relating to “drinking water supply scheme”. Pursuant to the above instructions, the 4th respondent fixed the upset price to the tanks as follows:- DETAILED STATEMENT OF FIXATION UPSET PRICE OF FISH TANK OF KAJA GRAM PANCHAYAT, MOVVA MANDAL FOR THE YEAR 2007-08. Sl.No. 1. 1 Name of Gram Panchayat 2. Kaja -do- Name of Tank 3. Nagula Cheruvu/ Kancha Cheruvu Details of Tank 4. Water Tank -do- Water Spread Area 5. 3-86 5-00 Survey No. 6. 1356/1 790/1 Profit of 2004-05 7. 16,000/- Profit of 2005-06 8. 16,000/- Profit of 2006-07 9. 16,000/- Profit of three years 10. 4,800/- Average of last 3 years 11. 16,000/- Examination as per Sarpanch/12. 16,000/- Secretary As per the Fisheries Development Officer 13. As per the H.D.O. 14. As per the D.P.O. 15. Remarks 16. Thereon the 4th respondent had fixed the upset price independently to the Kanchera Cheruvu @ Rs.85,000/- for the year 2007-08 for conducting public auction, which is quite exhorbitant/excess. In fact, the earlier lease amount of the said tank is Rs.1500/- so the enhancement from Rs.1500/- to Rs.85,000/- is most irrational and baseless. It is vital fact to state here that as per G.O.Ms.No.499, dt.24- 1-98 the Government instructed the District Collectors to constitute Committee for the purpose of fixing upset price in minor irrigation tanks and other water sources in the Gram Panchayat. As per G.O., the Committee consists of M.D.O. concern, Sarpanch of Gram Panchayat and Fisheries Development Officer, headed by Divisional Panchayat Officer concerned as Chairman. They should follow the guidelines which are issued by the Director of Fisheries vide G.O.Ms.No.13, dt.5- 1-99 and taking into account the actual income derived during the past 3 years to assess the value of fish and fix the upset price. In the instant case, the 4th respondent at the instance of Upa Sarpanch of Gram Panchayat hurriedly fixed the upset price without following the procedure which was prescribed by the Government and the same is in vogue. The 4th respondent fixed the upset price for the two tanks to conduct public auction i.e., Kanchera Cheruvu and Nagula Cheruvu at Rs.16,000/- and Rs.85,000/- respectively. Though the society is paying Rs.16,000/- to the Nagula Cheruvu fixing Rs.16,000/- for public auction is bad, which signifies the malafide action of the respondent to suffer the poor fishermen like them as the society is paying @ Rs.1,500/-, @ Rs.16,000/- per year to the Kanchera Cheruvu and Nagula Cheruvu respectively. Whereas the proceedings of the 2nd respondent issued instructions to the 3rd respondent to fix the upset price to lease out the fishery rights by conducting public auction is bad, arbitrary and contrary to G.O.Ms.No.343, Panchayat Raj, dt.10-4-78. Further consequentially the 4th respondent fixed upset price enhancing from Rs.1,500/- to Rs.85,000/- without following the instructions issued by the Government in G.O.Ms.No.499, dt.25-11-98 is bad, arbitrary and contrary to the G.Os., issued by the Government from time to time. Thus the members of the society are totally depending on fishing and the same is only source of income to eakout their livelihood. Thus aggrieved by the order of the 2nd respondent vide proceeding No.L.P.115/2005 pum-2, dt.23-1-2008 and consequently order of the 4th respondent vide ROC No.167/2008 dt.11-2-2008, the petitioner filed writ petition in W.P.No.3518/2008 before this Court and the same was disposed of by this Court on 26-2- 2008 as hereunder:- “Having regard to the facts and circumstances of the case, the writ petition is disposed of directing the respondents to consider the case of the petitioner for permitting it to catch the fish grown naturally, on the upset price fixed by the concerned authority, in accordance with the aforesaid G.Os., and pass appropriate orders. Till then, the fishing rights of the tanks in question, shall not be allotted by way of public auction.” Pursuant to the above direction, the District Collector made an order vide ROC No.495/2008 Pts:2, dt.15-5-2008 and it is stated that the order of the District Collector dt.15-5-2008 is nothing but contravening the directions of this Court in W.P.No.3518/2008 dt.26-2-2008. It is also stated that the 1st respondent – District Collector had not considered the facts and the Law properly while issuing an order rejecting the claim. In fact, the order of the District Collector is without jurisdiction though the District Collector has got multi-dimentional powers and further on an earlier occasion, dt.23-1-2008 the District Panchayat Officer had issued an order which would tantamount to setting aside the same by this Court. Thus, now the District Collector shall not exercise the powers since the power is vested with the local bodies and the superior officers. Therefore, it is stated that the order of District Collector vide proceedings in ROC No.495/2008 Pts:2, dt.15-5- 2008 is without jurisdiction, arbitrary and contrary to G.O.Ms.No.343, dt.10-5-78 and G.O.Ms.No.499 dt.25-1-98 apart from contravention of the directions of this Court in W.P.No.3518/2008 dt.26-2-2008. It is also stated that the said order offends Articles 14 and 21 of the Constitution of India. It is also stated that pursuant to the direction of the 1st respondent, the 4th respondent issued auction notice to conduct public auction to lease out the fishing rights of the drinking water tanks on 28-5-2008 at 3.00 p.m., by the Sarpanch of Kaja Gram Panchayat. Thus, being aggrieved by the same, the present writ petition had been filed. 13. The 1st respondent – District Collector, Machilipatnam, Krishna District filed a counter affidavit in detail narrating the facts and circumstances justifying the said auction. The 1st respondent had taken a different stand that out of 16 tanks vested in the Gram Panchayat some two decades ago, Kanchera Cheruvu was earmarked for drinking water purposes. In the tanks earmarked for drinking water purpose Pisci culture is prohibited as per Government Memo.58096/Pts.4/85-1, dt.5-7-85 and G.O.Ms.No.340, PR&RD (Pts- II) Department dt.20-5-88. All the tanks in this Gram Panchayat except the one earmarked for drinking water fishery rights used to be leased out in favour of the Society. Even in relation to one tank earmarked for drinking water purposes as pisci culture is prohibited the fishery rights used to be granted as and when improvements to the source are executed involving bailing out of water from the tank and after completion of improvements to recharge the tank with fresh water. In the process of emptying and recharging it with natural accumulated fishery wealth used to be harvested by the Society pursuant to grant of fishery rights by the Gram Panchayat by way of instant sale. While so in the year 2007 in addition to the one tank already earmarked for drinking water purposes, another tank by name Nagula Cheruvu was also earmarked for drinking water purposes keeping in view the requirements. Further stand had been taken that the second tank Nagula Cheruvu was earmarked for drinking water purposes for the first time in March, 2007 whereas another tank by name Kanchera Cheruvu was earmarked for drinking water purposes some two decades ago and there used to be one day sale as such it cannot be termed as leasehold rights for fisheries. Further it is stated that Upa Sarpanch and some other Ward Members of Kaza Gram Panchayat submitted a representation to the District Panchayat Officer, Krishna, Machilipatnam, stating that funds were sanctioned by the Government for taking up improvements to these two drinking water tanks and preliminary for taking up civic works for improvement, it was imperative to bailout water in the tanks and whatever natural fishery wealth available in the tanks be disposed of by resort to instant sale by conduct of public auction. In the light of the said representation, the District Panchayat Officer, Machilipatnam was instructed to take action for fixation of upset price to facilitate disposal of fishery wealth by conduct of public auction vide Memo.L.Dis.No.115/2008 Pts 2, dt.23-1- 2008 of the District Panchayat Officer, Krishna, Machilipatnam. While so, the Gram Panchayat submitted a proposal to the District Panchayat Officer, Machilipatnam requesting for fixation of upset price in relation to these two drinking water tanks for disposal of natural fishery wealth supported by resolution No.98, dt.8-2-2008. In response to this, the District Panchayat Officer, Machilipatnam, in terms of G.O.Ms.No.499 PR&RD Department. DT.25-11-98 fixed the upset price @ Rs.33,600/- and Rs.79,200/- for Nagula Cheruvu and Kanchera Cheruvu respectively and the Gram Panchayat Kaja was notified about fixation of upset price. The averments that the upset price so fixed is excessive irrational and baseless as the upset price as fixed for Kanchera Cheruvu does not compare favourably with the upset price as fixed during the previous year 2006-07 is not tenable as in terms of G.O.Ms.No.499, PR&RD Department, dt.25-11-98 the upset price has got to be determined by the committee by following the Rule 2(b) of G.O.Ms.No.343 PR, dt.10-4-78. Further it is stated that in the instant case, no lease of fishery rights in these tanks is contemplated as Pisci culture is prohibited in the tanks, as these two meant for drinking water tanks, being drinking water sources and for disposal of the natural growth of fishery wealth grown in these tanks instant as such the allegation relating to the violation of guidelines is not a tenable allegation. The contention that the upset price as fixed by the 4th respondent is violative of G.O.Ms.No.499 PR&RD Department, dt.25- 11-98 also had been denied. The order made in W.P.No.3518/2008 also had been referred to. The Society submitted a representation to R.1 – the District Collector praying for grant of fishery rights in these tanks by dispensing with public auction. The said representation was examined in the light of the provisions of G.O.Ms.No.343 PR Department, dt.10-4-78 and G.O.Ms.No.499, PR&RD Department, dt.25-11-98 as per the orders made by this Court. It is lso further stated that G.O.Ms.No.343, PR Department dt.10-4-78 on which the petitioner Society relied envisages grant of lease hold rights of fisheries in tanks vested in Gram Panchayat where Pisci culture is not prohibited to the Fishermen Cooperative Society on a local area on a preferential basis dispensing with “public auction”. In the instant case “no lease of fishery rights” is envisaged being drinking water tanks Pisci culture is prohibited and as such the claim of the petitioner Society for grant of right to catch the fish without resort to public auction is not tenable. The Fishermen Cooperative Society of the local area is only entitled to claim preferential treatment in regard to fishery rights in the tanks dispensing with public auction in cases involving leasing out of fishery rights in tanks. G.O.Ms.No.343, dt.10-4- 78 envisages grant of fishery rights in tanks belonging to Gram Panchayat in favour of Fishermen Cooperative Society of local area without public auction if the fishery rights are to be leased out. Further it is stated that the petitioner-Society was afforded an opportunity to make a personal representation on 28-4-2008 by the 1st respondent – the District Collector in relation to their claim for grant of fishery rights in the said tanks dispensing with public auction. The representatives of the Society availed the opportunity, in the audience granted by the District Collector, they made an oral representation in support of their claim. The 1st respondent taking into consideration the provision of G.O.Ms.No.343, dt.10-4-78 and G.O.Ms.No.499 PR&RD Department, dt. 25-11-98 as directed by this Court as also the facts as mentioned in the course of personal hearing issued speaking orders rejecting the claim of the Society, for preferential treatment in regard to grant of rights to catch the fish. The order issued by the 1st respondent ex- facie a speaking order and as such it is wrong to contend that the order is violative of the Judgment of this Court in W.P.No.3518/2008. The contention that the tanks earmarked for drinking water purposes used to be leased out to the Society in the past is far from true as till 2007 only one tank was earmarked for drinking water purposes and the fish catching rights in the one tank used to be disposed of by grnting fishery rights to the Society which is in the nature of one time sale and no lease of fishery rights was contemplated earlier to. Further specific stand had been taken that the contention that the 1st respondent has no jurisdiction to make such an order, cannot be sustained. The upset price fixed and the highest bid offered in the context of Kanchera Cheruvu and Nagula Cheruvu also had been furnished and thus it is stated that in the light of the facts and circumstances since the petitioner cannot claim the preferential right in this regard, the writ petition to be dismissed. 14. The 1st respondent also placed before this Court – Government Memo No.58096/Pts.IV/85, dt.5-7-85; G.O.Ms.No.340, PR&RD (Pts.II) Department, dt.20-5-88; Representation submitted by U.Ramesh, Upa- Sarpanch and other Ward Members of Kaza Gram Panchayat to the District Panchayat Officer,Krishna, Machilipatnam; Memo.L.Dis.No.115/08, Pts.2, dt.23-1-08 of the District Panchayat Officer, Krishna,Machilipatnam, addressed to the District Panchayat Officer,Machilipatnam; G.O.Ms.No.449, PR&RD Department, dt.25-11- 98; Lr.ROC No.167/08,dt.11-2-08 of the Panchayat Secretary, Kaza Gram Panchayat addressed to the District Panchayat Officer, Machilipatnam; Panchayat Resolution No.98, dt.8-2-2008 of the Kaza Gram Panchayat; Progs.L.Dis.No.42/08 C dt.23-2-2008 of the District Panchayat Officer, Machilipatnam; and Progs.L.Dis.No.47/06 B. dt.28- 7-2006 of the District Panchayat Officer, Machilipatnam. 15. The 4th respondent – the Secretary, Village Secretariat, Kaja village, Movva Mandal, Krishna District also had filed a counter affidavit in detail virtually taking the same stand as taken by the 1st respondent. 16. The 5th respondent who became the successful bidder in the public auction also filed counter affidavit in detail and apart from taking the same stand which had been taken by the 1st respondent further explained how his rights are prejudiced because of the interim order granted by this Court. 17. These are the respective stands taken by the parties. 18. As already aforesaid, submissions in elaboration had been made by by Smt.M.Vidyavathi, the learned Counsel representing the writ petitioner and also the learned A.G.P. for Panchayat Raj, Sri M.Prabhakar Rao, the learned Counsel representing the Gram Panchayat and also Sri Seetharam Chaparla relating