HON’BLE SRI JUSTICE P.S. NARAYANA CRIMINAL PETITION No.8050 of 2009 Date: November 18, 2009 Between: The New Allur Fishermen Co-operative Society, Rep. by its President V. Veeraraghavulu. ... Petitioner And 1. The Mandal Executive Magistrate & Tahsildar, Allur, Allur Mandal, Sri Pottisreeramulu Nellore District and 2 others. ...Respondents * * * ORDER: This criminal petition is filed praying for calling for records relating to and in connection with the impugned proceedings in R.C.C.No.249/2009, dated 29.8.2009, of the Tahsildar, Allur (first respondent) issued under Section 145 of the Code of Criminal Procedure, as illegal, arbitrary and consequently to quash the same and pass such other suitable orders. 2. Sri K. Ananda Rao, learned counsel representing the petitioner had taken this Court through the grounds of criminal petition and also explained the scope and ambit of Sections 145 and 147 of the Code of Criminal Procedure and would maintain that the ingredients are not satisfied. 3. Per contra, Sri Movva Chandrasekhara Rao, had taken this Court through the stand taken in the counter-affidavit and further would maintain that in the facts and circumstances of the case, inasmuch as the ingredients of Section 145 of the Code of Criminal Procedure are attracted, the order under challenge cannot be found fault. 4. It is stated that New Allur Fishermen Co-operative Society, Allur, is registered under the A.P. Co-operative Societies Act, 1964, and the Assistant Director of Fisheries/Ex-Officio Deputy Registrar of Co- operative Societies, Nellore, issued a certificate in Proceedings Rc.No.3260/D/87, dated 02.12.1991. It is also stated that the petitioner society is fighting with the Department for the last several years for getting fishing rights in the Allur PWD Tank and ultimately after issuing a legal notice, dated 10.7.2009, the Commissioner of Fisheries, A.P., Hyderabad, vide his Memo dated 21.7.2009 issued instructions to all concerned to take necessary action in the matter and report compliance. 5. Further it is stated that on the instructions of the Fisheries Development Officer, Padugupadu, Nellore, dated 13.8.2009, the petitioner society passed a resolution on 14.8.2009 and sent the same to the Fisheries Department along with a letter requesting to grant lease for the fasli 1419 which commences from 01.7.2008 for a period of one year which would end by 30.6.2009. Accordingly, the Fisheries Development Officer, Padugupadu, Nellore District issued proceedings on 17.8.2009 with a request to the Assistant Director of Fisheries to issue necessary lease order in favour of the petitioner society for the fasli 1419. 6. It is also stated that on the request of the Fisheries Department for issuance of necessary orders by way of lease for catching fish in the said tank, the District Collector, Nellore, issued Proceedings No.44/A/2009, dated 18.8.2009, allowing the petitioner society to catch fish for fasli 1419 and also fixed the lease amount at Rs.51,400/-. The petitioner society paid the entire amount on 19.8.2009. 7. Further it is stated that based on the lease deed executed by the Fisheries Department in the name of the petitioner society on 19.8.2009, the petitioner society was authorized to catch fish for one year for the fasli 1419. 8. While so, the 3rd respondent society, which is a marine society, having developed grudge against the petitioner society, filed W.P.No.17786 of 2009 questioning the proceedings of the District Collector, dated 18.8.2009. The petitioner society also filed a detailed counter-affidavit narrating the real facts. 9. Further it is stated that while things stood thus, since the 3rd respondent failed to get any positive interim order either from the Department or from this Court, raided the members of the petitioner society and caused grievous injuries to the father of the petitioner and other members on 26.8.2009 and a complaint had been lodged before the second respondent. The second respondent registered a case in crime No.66 of 2009 for the offences under Sections 147, 148, 324 and 326 read with 149 IPC. Later, a memo dated 28.8.2009 was filed by the second respondent before the Court of Additional Judicial Magistrate of First Class, Kovvur, to add Section 307 IPC. 10. It is also stated that the second respondent, while yielding the pressure laid by the third respondent society, filed a false report alleging that if the petitioner society is allowed to catch fish, law and order problem would arise in the said area and accordingly requested the first respondent to pass necessary orders under Section 145 of Cr.P.C. The first respondent without examining the entire issue, he simply issued the present impugned proceedings under Section 145 of Cr.P.C. restraining both the groups and others from catching fish or prawns in Alluru Tank until the issue was settled vide order dated 29.8.2009. Though the said order was issued on 29.8.2009, so far, the same was not served on the petitioner and on the other hand the police are restraining the petitioner from catching fish. The petitioner made a representation on 04.9.2009 to the first respondent stating all the facts to lift 145 Cr.P.C. proceedings, but the first respondent failed to pass necessary orders in this regard. Several grounds also had been raised. 11. In the counter-affidavit filed by respondent No.3 it is stated that the petitioner society is not a genuine one and it is not engaged in fishing profession. The contention of the Fisheries Department that 50 members of third respondent came out and formed the petitioner society and the contention of New Inland Fisheries Co-operative Society, Settygunta Road, Vinayaka Sea Foods, Nellore (6th respondent in W.P.No.17786 of 2009) that the members of third respondent society came out and formed the petitioner society are false. Third respondent society consists of 372 members and nobody came out of it. None of the members of petitioner society are local fishermen. The petitioner society never applied for granting lease hold rights in Allur Tank and they had no right to do so. Two societies cannot be registered within the same area of operation. 12. The third respondent society is a local society which had been taking lease of fishery rights in all the four tanks including Allur Tank. Admittedly, respondent No.3 had granted lease for fasli 1418 from 01.7.2008 to 30.6.2009 to the third respondent society. As per G.O.Ms.No.776, Food and Agriculture, dated 31.12.1990, the third respondent is entitled for preference and also entitled for continuation of lease. During the previous year, the third respondent society purchased fish and prawn seedlings worth Rs.70,000/- and did not catch the fish on account of temporary injunction order obtained by Butchammagari Polamma in I.A.No.583 of 2008 in O.S.No.112 of 2008 on the file of the Court of Senior Civil Judge, Kovuru, on the basis of a forged agreement of sub-lease. 13. The third respondent society paid a sum of Rs.63,000/- by way of demand drafts and treasury receipts, dated 07.7.2009, passed resolution to continue the lease and communicated the same to the Fisheries Department and the same were accepted by the Fisheries Department. While the third respondent is expecting intimation for continuance of the lease, the Fisheries Department granted lease dated 18.8.2009 in the name of the petitioner society benami for the benefit of Butchammagari Polamma, who did not succeed in the litigation in O.S.No.112 of 2009. The Fisheries Department colluded with the said Polamma for extraneous considerations and mislead the Collector to grant lease to the petitioner society. 14. The conduct of Jagadish, who is the Fisheries Development Officer, Padugupadu, Nellore, in asking the petitioner society in his proceedings Rc.No.FCS/2009, dated 13.8.2009, to pass a resolution and apply for lease of fishery rights instead of issuing orders to the third respondent society to continue the lease is nothing but collusion and fraud between him and the said Polamma. The Fisheries Department had no right to discontinue the lease to the third respondent society and grant lease to the petitioner society. The lease in favour of the petitioner society is null and void. 15. Further stand had been taken that the petitioner society and New Inland Fishermen Co-operative Society are different societies. The 6th respondent is now trying to wriggle out by saying that there is no 6th respondent society at all after accepting the same without objection till now. 16. Sections 145 and 147 of the Code of Criminal Procedure had been referred to and certain submissions had been made. In Varampeti Venkataswamy Reddy v. District Collector, Chittoor and others[1] it was held that in the first stage, the Executive Magistrate is supposed to record his satisfaction after giving the reasons. The second stage is to call the parties concerned in dispute to put in their written statements with respect to their respective claims and it is only after consideration of those statements and after conducting an enquiry as is provided under Section 145 of Cr.P.C., he may pass the prohibitory orders under sub-section (3) of Section 147 of Cr.P.C. Unless the first two steps are taken, the third step cannot be taken. 17. The writ petition W.P.No.17786 of 2009 had been partly allowed with appropriate directions to re-consider the case of the 6th respondent in the light of G.O.Ms.No.776, Food and Agriculture (Fisheries) Department, dated 31.12.1990, Even otherwise, on a careful examination of the proceedings issued under Section 145 of the Code of Criminal Procedure, especially, in the light of the order made in W.P.No.17786 of 2009, this Court is of the considered opinion that the criminal petition is devoid of merit and accordingly the same shall stand dismissed. ____________________ (P.S. NARAYANA, J) Date: November 18, 2009. BSB [1] 2004 (6) ALT 417