THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.11308 of 2009 Date: 18-02-2011 Between Chevvakula Satyanarayana Murthy … Petitioner and The State of Andhra Pradesh, Rep. by its Secretary, Fisheries Department, Secretariat, Hyderabad-4 and 3 others … Respondents/Respondents THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.11308 of 2009 Judgment: (per V.Suri Appa Rao, J.) This writ petition is filed under Article 226 of the Constitution of India to issue an order or direction more particularly one in the nature of Writ of mandamus declaring that the alleged sale by public auction of the right to catch fish for one day for fasli 1417 in Narsanna Tank situated within Toleru village panchayat limits of Veeravasaram Mandal of West Godavari district said to have been held either on 31- 3-2008 or on 06-4-2008 is utterly false and as such sale is not valid and binding and consequently, the 4th respondent cannot be permitted to catch fish in the tank and the permissions granted by the respondents 2 and 3 permitting the 4th respondent to catch fish is illegal, arbitrary, capricious and void under law and violative of provisions of the Constitution and also to further direct the respondents 1 to 3 to hold a public auction with regard to the right to catch fish for one day now available in Narsanna fresh water tank of Toleru village as per rules and regulations. 2. The 2nd respondent-The Divisional Panchayat Officer, Narasapuram, West Godavari district issued proceedings dated 26-02-2009 in Rc.No.89/2009/A1 granting approval to the village panchayat of Toleru village permitting the 4th respondent to catch fish for one day during the fag end of fasli 1418. 3. The petitioner contended that either himself or any of the villagers never heard about any intending auction by any sale proclamation such as any beat of tom-tom or otherwise with regard to the fishing rights of one day for Narsanna Tank for faslies 1417 or 1418 ending with 30-6-2008 and 30-6-2009, respectively. The petitioner strongly presumed and believed that no public auction was ever held with regard to the fishing rights for fasli 1417 or later. However, a false auction was projected as if the 4th respondent purchased the rights in an alleged public auction on 06-4-2008 for Rs.4,000/-. If there was any such public auction in fact on 06-4-2008, there would have been bid for not less than Rs.40,000/- for the right of catching fish for one day for fasli 1417 in Narsanna Tank. In fact, there is material variation of the date of the alleged auction itself. Had it been sold in public auction on 06-4-2008 he would have been permitted to harvest the crop of fasli 1417 immediately after opening the canals for one day in June, 2008 without any delay. Therefore, there might be collusion between the Sarpanch, Secretary and Members of the Panchayat and the 4th respondent. The falsity of the theory of the respondents 2 to 4 that there was an auction and that the 4th respondent is the highest bidder came to light only on 31-5-2009 on which date, the 4th respondent tried to catch fish in Narsanna Tank and he was prevented successfully by the villagers on the ground that there was no such auction at any time and even if there was any such auction, the 4th respondent has no right to take away the existing fish crop in the fag end of fasli 1418. The fish existing now in the tank is worth not less Rs.3½ lakhs, since there was no fishing for the last 2 years ever since the end of fasli 1416. The petitioner is one of the intending purchaser amongst several other villagers, who are anxious participate in any such auction. Therefore, he is interested in filing the writ petition challenging the truth of the alleged sale by auction, the validity of the permission granted to the 4th respondent during fasli 1418 long after 01-7-2008 to catch the fish. The petitioner further contended that during the years 1995-2000 while he was Sarpanch of Toleru village, to his knowledge the fish crop of Narsanna Cheruvu of each fasli fetched not less than Rs.20,000/- and ranged Rs.20,000/- to Rs.40,000/- per each year in the public auctions. Once in the subsequent years, the bid amount even touched Rs.60,000/-. The petitioner, therefore, contends that the alleged sale by auction said to have been held is utterly false and such sale is not valid and binding and that the permissions granted by the respondents 2 and 3 to the 4th respondent to catch fish is illegal, arbitrary, capricious and void under law. 4. The petitioner filed W.P.M.P.No.14525 of 2009 under Section 151 of CPC to grant interim orders directing the respondents 1 to 3 not to permit the 4th respondent to catch the fish. This Court while issuing notice to the respondents, granted interim stay as prayed for. 5. The 2nd respondent-The Divisional Panchayat Officer, Narasapuram, West Godavari district filed a Counter Affidavit denying all the material averments of the writ petition and further contended that Toleru Gram Panchayat is covered in Veeravasaram Mandal of West Godavari district. According to the instructions of the District Collector, the fishery wealth in drinking water tank could not be leased out as in other tanks. But, in every year, Gram Panchayat shall conduct public auction to catch the naturally grown fish in on day duly obtaining permission from the Divisional Panchayat Officer. The Gram Panchayat proposed for conducting auctions on 31-3-2008 for catching of naturally grown fish in one day sale according to the permission given by the Divisional Panchayat Officer, Narasapuram. During the auction conducted on 31-3-2008, several bidders participated for all the 5 tanks except Narsanna drinking water tank as such auction could not be held to Narsanna Tank. Again auction was conducted on 03-4-2008 and also on 06-4-2008. During the auction conducted on 06-4-2008 one Sri Arepalli Mutyala Rao, 4th respondent, emerged as highest bidder for Rs.4,000/-. Further, instructions were issued to the Gram Panchayat to see that the lease amount should not be less than the previous year’s bid amount. In the instant case, auction was conducted for the 3rd time due to non-participation of bidders for the 1st and 2nd instances. The auction conducted on 06-4- 2008 was confirmed by the Gram Panchayat. The 4th respondent has remitted the least amount to the Gram Panchayat on the day of auction. In view of the summer and water scarcity, bidder was not permitted to catch fish immediately. Subsequently, during the month of September, 2008 the Gram Panchayat passed Resolution No.131 dated 22-9-2008 and directed the Panchayat Secretary to accord permission to the 4th respondent to catch fish. The Gram Panchayat, in turn, requested the Divisional Panchayat Officer, Narasapuram vide letter Roc.No.14/2009 dated 16-02-2009 to accord permission to the bidder to catch fish as per the Gram Panchayat resolution. Accordingly, the Divisional Panchayat Officer, Narasapuram issued orders vide 89/2009 A1(Pts) dated 26-02-2009. In pursuance of the said orders, the Gram Panchayat accorded permission to the bidder to catch fish on 04-3-2009 vide reference No.14/2009 dated 28-02-2009. In the meanwhile, basing on a complaint received by the Divisional Panchayat Officer, the permission orders issued by the Divisional Panchayat Officer, Narasapuram were cancelled by order L.Dis.No.89/2009A1(Pts) dated 02-3-2009 and the said orders have been implemented by the Gram Panchayat. The bidder filed W.P.No.6346 of 2009 and the same was disposed of by a learned single Judge of this Court on 30-3-2009 by setting aside the orders of the Divisional Panchayat Officer, Narasapuram dated 02- 3-2009. In pursuance of the said orders of this Court, the bidder made an attempt for catching of fish on 31-5-2009. But, again the Gram Panchayat prevented the bidder due to scarcity of water and he was not allowed to catch fish till today due to scarcity of water in the village. The auction was conducted for only one day sale of fish. It is also a fact that for fasli 1417 i.e., 2008 the bid quoted was only Rs.4,000/-, which is less than the amount of Rs.18,000/- fetched in 1415 fasli i.e., 2006. As the period specified for the auction dated 06- 4-2008 was for one day for fasli 1417 which ended by 31-5-2008 and fasli 1418 started on 01-6-2008 and the naturally grown fish is also more due to lapse of more than one year and it will be a loss to the Gram Panchayat if the 4th respondent is allowed to catch fish. The 2nd respondent further furnished the income fetched from Narsanna Tank from 1997 onwards as under: Sl.No. Year Fasali Amount (in Rupees) 01. 1997 1406 5000 02. 1998 1407 2600 03. 1999 1408 Auction not conducted 04. 2000 1409 6550 05. 2001 1410 12400 06. 2002 1411 12400 07. 2003 1412 12400 08. 2004 1413 61400 09. 2005 1414 24000 10. 2006 1415 18000 11. 2007 1416 Auction not conducted 12. 2008 1417 4000 6. Learned counsel for the petitioner submitted that no auction was conducted and the petitioner and other villagers are not aware of the auction alleged to have been conducted by the Gram Panchayat. The alleged auction is, therefore, not valid and binding and is liable to be set aside. 7. Learned counsel for the respondents 1 to 3 submitted that though the auction was conducted and the 4th respondent was the highest bidder, he was not permitted so far to catch fish due to scarcity of water. The writ petition is, therefore, become infructuous. 8. Admittedly, the 4th respondent filed W.P.No.6346 of 2009 questioning the order L.Dis.No.89/2009 A1(Pts) dated 02-3-2009 cancelling the permission orders issued by the Divisional Panchayat Officer, Narasapuram. A learned single Judge of this Court by order dated 30-3-2009 while allowing the writ petition passed the following order: “ … … … If there exists any valid basis for cancellation of the permission, notice ought to have been given to the petitioner. Such a notice was not given and the permission was cancelled straightaway. On this short ground, to the writ petition is allowed and the impugned order is set aside.” 9. As seen from the Counter Affidavit filed by the 2nd respondent-Divisional Panchayat Officer, Narasapuram, after W.P.No.6346 of 2009 is allowed the 4th respondent was again prevented to catch fish when he made an attempt for catching of fish on 31-5-2009 due to scarcity of water and the 4th respondent was not allowed to catch fish even till today due to scarcity of water in the village. 10. It is, therefore, clear from the Counter Affidavit filed by the 2nd respondent that though the 4th respondent was the highest bidder to catch fish for one day for fasli 1417, which ended by 31-5-2008, he was prevented from catching fish due to scarcity of water even till today. Therefore, there is every possibility of increase of grown fish due to lapse of more than 3 years. The income fetched from Narsanna Tank since 1997 clearly indicates that in the year 1997 itself, the income was Rs.5,000/- and it was gradually increased up to Rs.61,400/- in the year 2004-05, but for fasli 1417 i.e., for 2008 auction was confirmed for the 4th respondent only for Rs.4,000/-. 11. It is the paramount duty and responsibility of the Gram Panchayat to provide drinking water to the villagers rather than getting income from out of the fish available in the tank. Though the 4th respondent was the highest bidder for fasli 1417 he was prevented from catching fish even till today due to scarcity of water in the village. The increase of the fish will be more due to lapse of 3 years. 12. Therefore, we feel that the Gram Panchayat, Toleru can conduct auction to catch fish for one day only if there is sufficient water in the tank. Except the proceedings of the Gram Panchayat, the 2nd respondent has not filed any proceedings of the auction conducted for the fasli 1417 to prove that the auction was conducted after vide publicity. The number of bidders participated in the said auction was also not indicated in any of the documents filed by the 2nd respondent. The bid amount of Rs.4,000/- was also inadequate when compared to the previous years’ rights from 1997 onwards. Even if the auction is held to be valid, the 4th respondent, who was the highest bidder, was prevented from catching fish due to scarcity of water. Having received an amount of Rs.4,000/- from the 4th respondent and having prevented him from catching fish for one day for the year 2008 due to scarcity of water, the Gram Panchayat ought to have returned the amount deposited by the 4th respondent when he was prevented from catching fish. 13. We, therefore, feel it appropriate to cancel the alleged auction conducted by the Gram Panchayat, directing the respondents 1 to 3 to refund the amount of Rs.4,000/- deposited by the 4th respondent immediately, if not already paid to him. The respondents 1 to 3 are further directed to conduct fresh auction by way of publication and beat of tom-tom inviting sufficient number of bidders to catch fish for one day only after sufficient water is available in the tank as per rules and regulations, as there will be abnormal increase of the fish from 2008 onwards, which undoubtedly will fetch more amount if the public auction is conducted again. 14. In the result, the writ petition is disposed of accordingly. No costs. _____________________ B.PRAKASH RAO, J. _____________________ V.SURI APPA RAO, J. 18th February, 2011. Ak THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE V.SURI APPA RAO Writ Petition No.11308 of 2009 (P.D. judgment of the Division Bench prepared by VSAR, J.) 18th February, 2011.