THE HONBLE Ms. JUSTICE G. ROHINI WRIT PETITION Nos.19500 & 21656 of 2007 COMMON ORDER: Both these writ petitions, which arise out of a dispute relating to fishing rights in Bopparam Voora Cheruvu, a tank situated within the area of operation of Bopparam Gram Panchayat, are heard together and decided by this common order. It is not in dispute that the tank in question being a minor irrigation tank vested in the Gram Panchayat, the leasing of fishery rights are governed by the Rules made under G.O.Ms.No.343 P.R. dated 10.4.1978. As per the said Rules, the lease of fishing rights shall in the first instance be offered to the Fishermen Co- operative Society of the local area without public auction and in case the Fishermen Co-operative Society is not willing, the fishing rights shall be put to public auction by the executive authority taking into account the upset price fixed by the Divisional Panchayat Officer. In terms of the said Rules, the Gram Panchayat, Bopparam, conducted public auction on 18.9.2005 for grant of fishing rights for a period of two years and the petitioner herein was declared as the highest bidder for a sum of Rs.70,000/-. In pursuance thereof, a lease agreement dated 18.9.2005 was executed by the Sarpanch of the Gram Panchayat in favour of the petitioner and possession of the tank was also delivered to the petitioner. The petitioner states that though he spent more than Rs.5.00 lakhs for rearing fish and for maintaining the tank, on account of excess water in the tank all through, he could not catch the fish during the period of lease. In the circumstances, he made a representation dated 31.08.2007 to the respondents 1 to 3 seeking extension of the lease. It is the case of the petitioner that as per the lease agreement dated 18.9.2005, he is entitled for extension by one more year ie., till 18.9.2008, in case he is unable to catch the fish due to any unavoidable circumstances. It is contended by the petitioner that in terms of the said clause in the lease agreement while seeking for extension, he deposited a sum of Rs.35,000/- in the State Bank of Hyderabad, Nakarekal, on 10.9.2007 towards lease amount. However, without granting the extension as sought by him, the Gram Panchyat, Bopparam, was taking steps to conduct fresh auction for grant of leasehold rights for the year 2007-08. Aggrieved by the said action, he filed W.P.No.19500 of 2007. However, since no interim order was granted, the auction proposed by the Gram Panchayat was conducted on 26.7.2007, in which the 4th respondent was declared as the highest bidder and a lease deed was executed in his favour for one year. In the circumstances, the petitioner filed W.P.No.21656 of 2007 seeking a declaration that the auction conducted on 26.7.2007 was arbitrary, illegal and contrary to the lease agreement dated 18.9.2005 and, consequently, to direct respondent Nos.1 to 3 to permit the petitioner to catch the fish till 18.9.2008. On behalf of the 1st respondent, the Sarpanch of Bopparam Gram Panchayat filed a counter-affidavit stating that the lease agreement executed by the former Sarpanch of the Gram Panchayat in favour of the petitioner was illegal and unsustainable, since there was no resolution by the Gram Panchayat either to conduct the auction or to execute the lease agreement in favour of the petitioner. It is also alleged that the petitioner was in active collusion with the former Sarpanch and that therefore though he failed to deposit the lease amount of Rs.70,000/-, he was allowed to carry on the fishing operations in the tank in question. While disputing the clause in the lease agreement for extension of the lease by one more year, it is alleged by the 1st respondent that the said extension clause was fraudulently inserted by the petitioner by manipulating the lease agreement in collusion with the former Sarpanch. The plea of the petitioner that there was excess water in the tank on account of heavy rains due to which he could not catch the fish was also specifically denied and it is pleaded that in pursuance of the fresh auction conducted on 26.7.2007, the 4th respondent became the successful bidder, and since he had deposited the entire lease amount with the Gram Panchayat, the possession of the tank was also delivered to him. The 4th respondent filed a separate counter-affidavit on the same lines pleading that having been declared as the successful bidder in the auction conducted on 26.7.2007, and having deposited the entire amount with the Gram Panchayat, he is entitled to exercise the leasehold rights. I have heard the learned counsel for both the parties and perused the material on record. Though it is contended by the 1st respondent-Gram Panchayat that the lease agreement executed in favour of the petitioner was illegal for want of sanction and, therefore, the petitioner did not acquire any valid right, it is to be noted that the 1st respondent had never raised any dispute with regard to the right acquired by the petitioner as a lessee and he was allowed to exercise his leasehold rights during the lease years 2005-07. Hence, it is not open to the Gram Panchayat to question the validity of the rights acquired by the petitioner under the lease deed dated 18.9.2005 for the years 2005-07 on any ground whatsoever. So far as the entitlement of the petitioner for extension of lease is concerned, it is alleged by the Gram Panchayat that the lease agreement in favour of the petitioner, dated 18.9.2005, was manipulated by inserting a clause with regard to extension of the lease. The said allegation has been specifically denied by the petitioner in his reply affidavit. This Court is not a proper forum to make any enquiry and record a finding on such a disputed question of fact. Hence, I am not inclined to enter into the said issue and express any opinion as to the correctness of the rival claims. Even other wise, as per the Rules made under G.O.Ms.No.343 PR dated 10.4.1978, fishing rights shall be leased out only in open auction or by leases given to Fishermen Co-operative Society or Rajaka Seva Sangham as the case may be. As could be seen, the Rules do not provide for extension of lease under any circumstances whatsoever. Hence, the claim of the petitioner for extension of lease for one more year on the basis of a clause in the agreement, which is contrary to the statutory provisions, is untenable. Therefore, the fresh lease granted in favour of the 4th respondent by conducting public auction cannot be invalidated, merely on the ground that the petitioner’s application for extension was pending. However, the learned counsel for the writ petitioner further contended that even if the lease was only for two years, since it expired on 17.9.2007, the respondents ought not to have conducted public auction on 26.7.2007 while the lease in his favour was still subsisting. The said contention of the petitioner was sought to be refuted by the respondents stating that though the lease agreement was executed on 18.9.2005, possession of the tank was handed over to the petitioner on 11.7.2005 itself and thus the lease actually commenced on 11.07.2005 and it was valid only up to 10.07.2007. This is again a disputed question of fact, which cannot be enquired into by this Court in exercise of the jurisdiction under Article 226 of the Constitution of India. As per the material available on record, the lease deed in favour of the petitioner was executed on 18.9.2005. The lease deed also contained a specific recital that the petitioner was entitled to catch the fish for a period of two years from 18.9.2005 to 18.9.2007. Hence, for the purpose of these Writ Petitions, the lease in favour of the petitioner shall be taken as valid up to 18.09.2007. Consequently, the 4th respondent must be deemed to have acquired leasehold rights under the auction held on 26.7.2007, with effect from 19.9.2007 only. However, the auction conducted on 26.7.2007 for grant of fresh leasehold rights cannot be held to be vitiated, nor the lease in favour of the 4th respondent is rendered void merely on the ground that the lease in favour of the petitioner was subsisting on the date of auction. For the aforesaid reasons, the declaration as prayed for cannot be granted. Accordingly, the writ petitions are dismissed subject to the above observations. No costs. .07.2008. Kgr IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Ms. JUSTICE G.ROHINI WRIT PETITION No.19500 of 2007 Between: Pulipati Srinivas S/o.P.Rangaiah, aged about 35 yearsw, R/o.Nakarikal village and Mandal Nalgonda District. ..... PETITIONER AND 1 The Grama panchayat, Bopparam Ketapalli mandal Nalgonda District, represented by its Sarpanch, Durgam Nagamma W/o.Peeraiah, aged about 32 years. 2 Government of AP., represented by its Divisional Panchayat officer Nalgonda, Nalgonda district. 3 Government of AP., represented by its District Collector Nalgonda, Nalgonda District .....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 issue a writ order or direction more particularly one in the nature of writ of mandamus declaring the auction of the 1st respondent in trying to conduct auction of the Bopparam Voora Cheruvu fishing rights from 18.9.2007 to 18.9.2008 without folowing the condition stipulated in the Agreement dated 18.9.2005 as illegal, arbitrary, null and void and also violative of principles of natural justice and consequently direct the respondent to permit the petitioner to catch the fish hold rights in the Bopparam Voora Cheruvu Tank till 18.9.2008 and pass Counsel for the Petitioner: Mr. M. BRAHMA REDDY Counsel for the Respondent No.: GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following: IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE SECOND DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Ms. JUSTICE G.ROHINI WRIT PETITION No. 21656 of 2007 Between: Pulipati Srinivas, S/o. P. Rangaiah, Fish Business, aged about 35 years, R/o. Nakarikal Village and Mandal, Nalgonda District. ..... PETITIONER AND 1 The Grama Panchayat, Bopparam, Ketapalli Mandal, W/o. Peeraiah, aged about 32 years 2 Government of A.P.. Represented by its Divisional Panchayat Officer, Nalgonda, Nalgonda District. 3 Government of A.P.. Represented by its District Collector, Nalgonda, Nalgonda District. 4 Durgam Mallaiah, S/o.Venkaiah, aged about 33 years, agriculturist, R/o. Bopparam Village, Kethepally (M), Nalgonda District. .....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 issue a Writ, Order or direction more particularly one in the nature of Writ of Mandamus declaring the alleged auction notice dated Nil and Auction conducted on 26-7-2007 is respect of fishing rights in Voorakunta Cheruvu (Tank) of Bopparam Gram Panchayat, Kotepally, Nalgonda District, is illegal, arbitrary, violative of principles of natural justice and also contrary to the Agreement dated 18-9-2005 also GO Ms.No. 343 P.R. dated 10-4-1978 as well as the GO Rt. No. 546 P.R. & R.D. dated 24-3-1999 as illegal, arbitrary, null and void and also violative of principles of natural justice and consequently direct the respondents 1 to 3 to permit the petitioner to catch the fish hold rights in the Bopparam Voora Cheruvu Tank Till 18-9-2008 following the Agreement dated 18-9-2005 executed by the 1st Respondent, and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case Counsel for the Petitioner: Mr. M. BRAHMA REDDY Counsel for the Respondent : GP FOR PANCHAYAT RAJ & RURAL DEV. The Court made the following: