CWP No. 15791 of 2007 :: 1: IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP No. 15791 of 2007 Date of Decision: 06.11.2008 Archana Kumari and others ..Petitioners versus State of Punjab and others ..Respondents CORAM: HON'BLE MR. JUSTICE T.S.THAKUR,CHIEF JUSTICE HON'BLE MR. JUSTICE JASBIR SINGH 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present : Mr. Rajnish K.Jindal, Advocate for the petitioners Ms. Madhu Dayal, Addl. A.G. Punjab for respondents No. 1 to 4 Mr. Rupinder Khosla, Advocate for respondent No. 5 Ms. Gaganjeet Kaur, Advocate for respondents No. 6 and 7 Mr. Manjit Singh, Advocate for respondent No. 9 ***** T.S.Thakur, C.J. (Oral) This petition has been filed in public interest. It prays for a mandamus directing respondents No. 1 to 3 to lodge a First Information Report against respondents No. 6 to 9 for an offence punishable under Section 420 of Indian Penal Code and to initiate recovery proceedings against the said respondents. Initiation of disciplinary proceedings for dereliction of duties on the part of the officials respondents have also been CWP No. 15791 of 2007 :: 2: prayed for. The controversy in the writ petition relates to fishing rights in a municipal pond situate at Bareta in Mansa District of State of Punjab. The pond in question happens to be in the vicinity of a place of worship popular with a certain community. Respondent No. 9 is the President of the committee that manages the affairs of the said place of worship. It is, not, however, in dispute that the ownership of the pond vests in the Municipal Council, Bareta. A public auction of the fishing rights in the pond aforementioned appears to have been announced by the Municipal Council which was subsequently called off. This was followed by an arrangement vide which respondent No. 9 of his own made allotment of fishing rights to a private individual from whom he received a sum of Rs.81,000/- as advance payment. This arrangement did not find favour with the petitioners who happen to be the Municipal Councilors of Municipal Council, Bareta. They appear to have brought the issue up before the Council, who by a majority vote decided to allow respondent No. 9 to retain the money received by him keeping in view the fact that the pond was being maintained by the committee managing the place of worship in the vicinity. This resolution was not, however, approved by the Government. It is common ground that in the absence of any approval of the resolution by the government, the same has no legal effect. The petitioners have now filed the present writ petition seeking registration of a case against respondents No. 6 to 9, who happen to be officers of the Municipal Council and respondent No. 9, who is accused of having cheated the Municipal Council and thereby rendered himself liable CWP No. 15791 of 2007 :: 3: for prosecution. The matter was taken up with the Director, Local Government,Punjab in terms of Annexure P-6 directing Executive Officer to have a criminal case registered. The Executive Officer in turn wrote back that according to the legal advice tendered by District Attorney no offence was made out against any one. Aggrieved, the petitioners have approached this Court as already noticed earlier. We have heard learned counsel for the parties at considerable length and perused the record. On behalf of respondent No.6, it was submitted by Ms. Gaganjeet Kaur that non-registration of an FIR was no reason for the petitioners to file the present petition. Reliance in support was placed on two decisions of Supreme Court in Sakiri Vasu V. State of U.P. 2008(1) RCR (Crl.) 392 and Aleque Padamsee and Ors. V. Union of India and others 2007(3) RCR(Crl.) 815. On behalf of respondent No.5 Municipal Council, Mr. Khosla argued that the Council had got the matter examined from the District Attorney who was of the view that no offence was made out against any of respondents No. 6 to 9. At any rate the Municipal Council was according to Mr. Khosla ready and willing to take control of the fishing pond and examine whether any civil or criminal action was possible against respondent No. 9 for his act of unauthorisedly leasing the said rights in favour of a third party. He further submitted that contracts for collection of fish from the pond in future shall be allotted only by the Municipal Council as ownership of the pond in question in the Municipal Council. On behalf of respondent No. 9, it was submitted that the fishing rights were granted to a private individual in general public interest. It was urged that in the interest of the devotees visiting the place of worship, the CWP No. 15791 of 2007 :: 4: money received by respondent No. 9 was spent for construction of a shed over the cremation ground and construction of road leading to the said cremation ground. There was, therefore, no misappropriation of funds to call for any criminal action. We have given are careful consideration to the submissions made at the Bar. There is in our much ado about nothing. That the fishing pond vests in the Municipal Council is not disputed by any one before us. This would mean that fishing rights could be granted only by the Municipal Council. We are also of the view that rights ought to be granted by a transparent method in which all those interested for competing for the award of such right get an opportunity to do so. The auction earlier fixed by the Council was cancelled for reasons best known to it. This perhaps impelled respondent No. 9 to step in and grant the rights to a person of his choice. In the ordinary course, if the Council did not approve of the action of respondent No.9, it ought to have prevented the contractors from entering or fishing in the pond. This fact that the Council did not do so shows either connivance on the part of the Council Officers or their apathy towards what ought to have been done . Be that as it may, what is important is that future of the pond and fishing rights qua the same are to be protected. Mr. Khosla's statement that the Council is ready and willing to take control of o the pond and prevent any unauthorised and illegal fishing in the same except under a contract to be allotted by the Council alone would in our opinion sufficiently take care of the concerns of the petitioners. If a future can be secured, the past can either be buried or investigated further depending upon how the Council looks at the entire incident leading to allotment of the rights by respondent No. 9. In a public interest litigation CWP No. 15791 of 2007 :: 5: initiated in exercise of our writ jurisdiction, we would be content with issuing a direction to respondents No. 4 and 5 to ensure that no illegal fishing is done by anyone including any private person except under the authority of the Municipal Council. As far as the transaction between respondent No. 9 and his contractor is concerned, we leave it to the Director Local Government to decide whether any civil or criminal action against the officers, who acquiesced in the grant of the said rights or collection of fishes by the contractor is warranted. Beyond that it is neither necessary nor proper to say anything in these proceedings. The writ petition is accordingly disposed of with the above observations leaving the parties to bear their own costs. Copy of the order be given dasti to Mr. Khosla, learned counsel for respondent No. 5 under the signatures of Bench Secretary. (T.S.THAKUR) CHIEF JUSTICE (JASBIR SINGH) 06.11.2008 JUDGE 'ravinder'