1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08.04.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD).Nos.1133 & 1134 of 2011 And M.P.(MD).Nos. 1, 1, 2 & 2 of 2011 P.Radhakrishnan : Petitioner in both W.Ps. Vs 1. The Chief Executive Officer Fish Farmers Development Agencies Madurai 2. Pandi : Respondents in both W.Ps. PRAYER IN BOTH W.Ps.: These Writ Petitions filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned orders bearing Na.Ka.No. 1863/E/2010-1 & Na.Ka.No. 1863/E/2010-2 dated 04.01.2011 passed by the first respondent herein and quash the same and consequently direct the first respondent to conduct public auction/public tender in respect of the Pappakudi tank of Andar Kottatram Village, Madurai North Taluk, Madurai. For petitioner in both W.Ps. : Mr.M.Gnangurunathan For 1st Respondent in both W.Ps. : Mr.K.Balasubramanian Additional Government Pleader For 2nd Respondent in both W.Ps. : No appearance O R D E R The Writ Petition has been filed by the petitioner challenging the auction conducted to take the fish out of pond. 2. The learned counsel appearing for the petitioner would contend that the first respondent decided to lease out the fish tanks in the Village. He would further contend that the water spread area of the Pappakudi tank is 90 acres and the water spread area of the Seekangulam tank is 60 acres. Both these areas were auctioned for a period of 5 years. The contention of the learned counsel appearing for the petitioner is that the respondent did not publish the tender in anyone of the news papers, but surreptitiously issued the notification and without the knowledge of everyone, it has been given to the second respondent and they have also understand that it is not in accordance with the terms and it is not the public auction and only one person participated and he has offered from meager amount of Rs.5,500/- and Rs.4,400/- respectively, for both the tanks and that too, for a period of five years. But whereas the petitioner was ready and willing to participate, but he was not given any opportunity as it was not made known at all and even then, he is prepared https://hcservices.ecourts.gov.in/hcservices/ 2 to take it for auction for a sum of Rs.20,000/- per year. The difference is more than five times and therefore, under the public tender auction, if any person offers more than 150%, the auction has to be cancelled. The auction was confirmed on 04.01.2011. The Writ Petition was filed on 25.01.2010. Challenging the grant of the fishery right in the tank, a notice was directed to be issued, the second respondent, being the successful bidder for whom the contract is alleged to have been given. Though, notices have been duly served, he did not participate and his name has also been printed in the cause list. After printing the name also, none appeared. 3. The first respondent has filed a counter. In the counter, he would only contend that there is no publication made and the Tender Transparency Act would apply only if the tender value is more than ten lakhs and this auction was circulated by notice through the local body and Revenue Officials and also made a Tom Tom. According to them, the advertisement was given to the President of Andarkottaram Panchayat and the public auction notice was communicated to the concerned Panchayat Union and Taluk Office. Therefore, the auction is correct and there is only one person participated and hence, the auction was given in his name. Hence, the Writ Petition is not maintainable. 4. Heard both sides. 5. At the outset, the petitioner's main contention is that the fishery right in respect of 90 acres and 60 acres of very big tanks and that too, for a period of five years, when it is offered, should have been given sufficient public notice. This public notice was not at all issued by the first respondent. According to him, there was no publication in paper nor there any wide publicity including even the Tom Tom. In this connection, the counter to the effect that the Transparency Act will not apply and therefore they do not make the publication in paper. Even for the notifications, they would only state that this auction was given to the Panchayat President and the local bodies. But in the counter, the wordings used is very vague stating that the advertisement was given to the local body ie., the President of Andarkottaram Panchayat and the public auction notice was communicated to the concerned Panchayat Union and Taluk Office to put up in notice board and no record have been produced for the notification or publication has been duly published in the relevant Panchayat Union at that point of time. It is further stated in the counter, the communication was communicated to the concerned Village Administrative Officer, Andarkottaram, who was on leave on 27.02.2011 and the said communication was communicated to the Village Administrative Officer, Kozhikudi. It is further stated in the counter that it is the duty of the Village Administrative Officer to intimate the local public by any means. But they do not state that this Village Administrative Officer communicated to the public. The counter is very clearly silent about this aspect. Therefore, it is nothing but clear that as earlier pointed out by the petitioner, no publication whatsoever has been made by anyone in the concerned area neither the first respondent nor the Panchayat or the Village Administrative Officer has done anything to give wide publicity for the auction to be conducted and that too for a period of five years in respect of 90 acres and 60 acres. Though the said Transparency Act may not apply because the valuation is less than ten lakhs as stated by https://hcservices.ecourts.gov.in/hcservices/ 3 them. But we do not know if it is auctioned what will be the amount in the public auction would fetch with wide publicity. Whereas from the records, it is clear that one person alone participated for both the tanks and he has been conveniently given at a very meager amount of Rs.4,400/- and Rs.5,500/- for a period of five years for each year. 6. It is also not clear that whether the authorities have worked out what will be the actual amount involved in this area, what is the extent of water catchment in this area, the quantum of availability of fish and in respect of which, no work has been done, but straight away tender has been given to the second respondent. Conveniently, the second respondent, who has taken the auction, has failed to appear before this Court. In fact, the auction itself is to utilise the tank in the water catchment area for a period of five years to raise the fish and then sell it. 7. As per the Division Bench of this Court in The Commissioner Vs. V.Asokan reported in 2005 Writ L.R. 30 following the Supreme Court Judgment , which categorically stated that the State Government or Public authorities should make all attempts to obtain the best available prices while disposing of public properties. In paragraph 9 of the said Judgement runs as follows:- “Thus, the law is very clear that ordinarily all contracts by the Government or by an instrumentality of the State should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the same.” Yet another Judgment in Matsya Jivi Sahakari Samiti Vs. Sub- Divisional Officer and others reported in AIR 2003 Allahabad 27, wherein a similar case of fishery right also has been dealt with. In paragraph No. 7 of the said Judgment runs as follows:- “It has been repeatedly held by this Court that fishery lease can only be granted after advertising the same in well known newspapers having wide circulation in the area and thereafter holding public auction/public tender. Vide Desh Kumar V. State of U.P., (1998) 89 Rev Dec 385 : (AIR 1998 SC 225); Abdul Gaffar v. State of U.P., (1997) 88 Rev Dec 656; Ram Bharosey Lal V. State of U.P. Civil Misc. Writ Petition No. 31943 of 2002) decided on 7.8.2000. If it is not granted in accordance with this procedure there will be violation of Article 14 of the Constitution, and the public exchequer will also suffer. Since it is not disputed that the fishery lease was granted to respondent No.3 without advertising it in well known newspapers having wide circulation and thereafter holding public https://hcservices.ecourts.gov.in/hcservices/ 4 auction / public tender we are of the opinion that the lease granted to respondent No.3 was wholly illegal and it is hereby quashed. The lease can now be granted only in accordance with the aforementioned decisions of this Court. Till the lease is granted afresh the respondent No. 1 as an interim measure will look after the fishery pond but he shall hand it over to the person in whose favour the public auction / public tender is finalised. Petition allowed. No order as to costs.” 8. Above all these things, the petitioner herein would also contend that he is willing to participate and prepare to even offer a sum of Rs.20,000/- per year, which is more than five times the offer, which is now made. Dé-hors the offer made by the petitioner, this Court feels that this is the fittest case, where the authority could have no right to auction such vast extent for five years without even a publication. In view of the pronouncement of the Supreme Court as well as this Hon'ble Court, it is very clear that the authorities should take utmost care to get the best out of all these auction and the highest amount to the benefit of the Government and such largasce should not be given at the whims and fancies of certain persons. Hence, the case made out by the petitioner is very clear that the impugned order granting permission to the second respondent is not in accordance with law. Further it is astonishing to note that only one person participated in both the auction in respect of two different lakes consisting of more than 90 acres to 60 acres respectively. Therefore, both the impugned order, dated 04.01.2011, are quashed directing the authorities to issue fresh public auction after giving wide paper publication in that area and also by Tom Tom and affixing in the Panchayat and give atleast one week took notice prior to the auction and then only public auction should be conducted. 9. Accordingly, these Writ Petitions are allowed and the impugned orders bearing Na.Ka.No. 1863/E/2010-1 & Na.Ka.No. 1863/E/2010-2 dated 04.01.2011 passed by the first respondent are hereby quashed. Consequently, connected Miscellaneous Petitions are closed. No costs. Sd/- Deputy Registrar (LA) /True copy/ Assistant Registrar To The Chief Executive Officer Fish Farmers Development Agencies Madurai. Vsg SR : 06.05.2011 : 4p/2c W.P.(MD).Nos.1133& 1134 of 2011 08.04.2011 https://hcservices.ecourts.gov.in/hcservices/