High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27-04-2007CORAM :THE HONOURABLE MR. JUSTICE A. KULASEKARANW.P. No. 49149 of 2006W.P. No. 3363 and 3364 of 2007andM.P. Nos. 1 and 2 of 2006M.P. Nos. 1, 1, 2 and 2 of 2007-o-WP No. 49149 of 2006Paruthipalli Panchayat Unionrep. By its President P. ThangammalParuthipalli PostMallasamudhram ViaThiruchengode TalukNamakkal DistrictPincode – 637 503.. Petitioner Versus1. The Collector Collectorate of Namakkal Namakkal District2. The Tahsildar Thiruchengode Namakkal District3. The Executive Engineer Public Works Department Sarabanga Namakkal District4. The Block Development Officer Mallasamudhram Thiruchengode Taluk Namakkal District5. The Revenue Inspector Vyappamalai Thiruchengode Taluk Namakkal District6. K. Malli https://hcservices.ecourts.gov.in/hcservices/

7. Pallipalayam Avarangadu Fisherman Co-operative Society Jedarpalayam & Post Namakkal District.. Respondents rep. By its Special Officer V. Kuppusamy(R6 and R7 were impleaded as per the Order dated 12.03.2007 made in MP Nos. 1 and 2 in WP No. 49149/2006)WP No. 3363 of 2007A. Sakthivel.. Petitioner Versus1. The District Collector Namakkal District Namakkal 2. The Assistant Director of Fisheries Mettur Dam Salem District3. The Executive Engineer Public Works Department Sarabanga Water Basin Division Namakkal 4. The Inspector of Police Elachipalayam Police Station Elachipalayam Taluk Namakkal District5. The Special Officer/Inspector of Fisheries Pallipattu Avarangadu Fisherman Co-operative Society Jedarpalayam Post Namakkal District6. The President Paruthipalli Village Panchayat Paruthipalli Post Mallasamudram Thiruchengode Taluk Namakkal Post https://hcservices.ecourts.gov.in/hcservices/

7. K. Malli .. Respondents(R7 was impleaded as per Orderdated 12.03.2007 made in MP No.3of 2007 in WP No.3363 of 2007)WP No. 3364 of 2007K. Balu.. Petitioner Versus1. The District Collector Namakkal District Namakkal 2. The Assistant Director of Fisheries Mettur Dam Salem District3. The Executive Engineer Public Works Department Sarabanga Water Basin Division Namakkal 4. The Inspector of Police Elachipalayam Police Station Elachipalayam Taluk Namakkal District5. The Special Officer/Inspector of Fisheries Pallipattu Avarangadu Fisherman Co-operative Society Jedarpalayam Post Namakkal District6. The President Paruthipalli Village Panchayat Paruthipalli Post Mallasamudram Thiruchengode Taluk Namakkal Post7. K. Malli .. Respondents(R7 was impleaded as per Orderdated 12.03.2007 made in MP No.3of 2007 in WP No.3364 of 2007) https://hcservices.ecourts.gov.in/hcservices/ WP No.49149 of 2006: Petition filed under Article 226 of TheConstitution of India praying for a Writ of Certiorari to call for therecords of the 3rd respondent in its proceedings letter Ka.No.1758/2006/T4 dated 20.09.2006 and quash the same.WP No. 3363 of 2007: Petition filed under Article 226 of TheConstitution of India praying for a Writ of Mandamus directing therespondents 1 to 4 to take appropriate legal action against the 6threspondent and consequently forbearing the 6th respondent frominterfering with the fishing activities of the petitioner in respect ofParuthupalli tank, Thiruchengode Taluk, Namakkal District as per theproceedings of the third respondent issued in Ka.No.1758/2006/ T4 dated20.09.2006.WP No. 3364 of 2007: Petition filed under Article 226 of TheConstitution of India praying for a Writ of Mandamus directing therespondents 1 to 4 to take appropriate legal action against the 6threspondent and consequently forbearing the 6th respondent frominterfering with the fishing activities of the petitioner in respect ofParuthupalli tank, Thiruchengode Taluk, Namakkal District as per theproceedings of the third respondent issued in Ka.No.1758/2006/ T4 dated20.09.2006WP No. 49149 of 2006For Petitioner :Mr. Anand For Respondents :Mr. I. ParanthamenGovernment Advocate for RR1 to 5Mr. V. Raghavachari for R6Mr. G. Sankaran for R7WP No. 3363 & 3364 of 2007For Petitioner :Mr. R.N. AmarnathFor Respondents :Mr. I. ParanthamenGovernment Advocate for RR1 to 5Mr. Anand for R6Mr. V. Raghavachari for R7COMMON ORDERAll these writ petitions are relating to the Order dated 20.09.2006granting lease in favour of Special Officer/ Inspector of Fisheries,Pallipattu, Aravangadu Fisherman Co-operative Societies, which in turngranted sub-lease to the writ petitioners in WP Nos. 3963 and 3964 of2007, hence, they are disposed of by this common order.2.For the sake of convenience, the petitioner in WP Nos. 3363and 3364 of 2007 shall hereinafter be referred as as petitioners; thepetitioner in WP No. 49149 of 2006 shall be referred to as ObjectorNo.1, the respondent Mr. Malli, who is the 6th respondent in WP No. 49149of 2006 and 7th respondent in WP No. 3363 and 3364 of 2007 shallhereinafter be referred to as Objector No.2; The Special https://hcservices.ecourts.gov.in/hcservices/ Officer/Inspector of Fisheries, Pallipattu, Aravangadu Fisherman Co-operative Societies shall hereinafter referred to as 'Society' and theother officers are referred to as per their designation.3.The Executive Engineer, Public Works Department executed alease deed dated 20.09.2006 leasing out Paruthupalli Tank to theSociety for the period commencing from 01.07.2006 to 30.06.2007 which inturn leased out the same to the respective writ petitioners for anannual rent of Rs.17,000/- and Rs.28,570/- respectively. Since theObjectors have allegedly attempted to interfere with their business, WPNos. 3363 and 3364 of 2007 were filed by the petitioners.4.The Objector No.1, who is the President of ParuthupalliPanchayat Union filed WP No. 49149 of 2006 challenging the lease deeddated 20.09.2006 executed by the Executive Engineer, Public WorksDepartment, in favour of the society and to quash the said lease.5.It is the case of the petitioners as well as the ExecutiveEngineer, Public Works Department and the Society that Paruthupalli Tankbelonged to Public Works Department, which is being maintained by it,hence, they are competent to lease it out to any person of their choiceand accordingly, the same was leased out to the society, which was alsoratified by the District Collector by order dated 03.04.2007, hence, itiis not open to the objectors or any person to interfere with theirrights in the said tank.6.The case of the objectors is that Paruthupalli tank is locatedwithin the jurisdiction of Paruthupalli Panchayat Union, hence, theprovisions of Tamil Nadu Panchayat (Lease and Licensing of FisheryRights in Water Sources Vested and Regulated by Village Panchayat andPanchayat Union Councils) Rules 1999 are applicable. In the said Rules,as per Appendix I, it is categorically mentioned that irrigationsources, which are entrusted to Panchayat Union Council under Section133 (1) of Tamil Nadu Panchayat Act, 1999 and maintained by them andnon-provisionalised water sources of Public Works Department maintainedby them can be dealt with only by Village Panchayat concerned, hence, itis not open to Public Works Department to deal with any manner, hence,the lease deed dated 20.09.2006 executed in favour of the society is notvalid. It is further submitted by the Objectors that the lease wasexecuted on 20.09.2006, whereas, the lease amount was received on02.09.2006 itself which shows that the Public Works Department hadwhimsically selected the society at their sweat will; that the tanksshall not be leased by nomination, if at all, they have to go for publicauction after giving wide publicity, which are required as per law, butthe same was not done in this case, hence, the lease deed executed bythe Public Works Department also is not valid.7.The case of the Public Works Department is that Paruthupallitank is owned by them, as per G.O. Ms. No.332, Animal Husbandary andFisheries (FS IV) Department dated 17.11.1993 the fishing rights for thefasli year 1416 was given to the Society as per the recommendations ofthe Assistant Director of Fisheries, Mettur Dam by their letterNo.1132/E/06 dated 31.08.2006. The Executive Engineer, Public WorksDepartment, Sarabanga Basin Division, Namakkal approved the fishing https://hcservices.ecourts.gov.in/hcservices/ rights to the society by letter No.1758/2006/ A4 dated 20.09.2006; thatas per the Revenue Standing Order (RS0) 211, the first priority shouldbe given to the fisherman co-operative society and it is the only onesociety in the area, considering the same, the lease was executed to thesaid society, which in turn sub-leased the same to the writ petitioners.8.The case of the District Collector is that though Paruthupallitank is situate within Thiruchengode Namakkal District, it is beingmaintained by the Public Works Department as per the descriptive memoirof irrigation works in Thirumanithuar minor basin of Cauvery riverbasin. Since Paruthupalli tank is being owned by Public WorksDepartment, fishing right for fasli 1416 was given to the society bythem as per the recommendations of the Assistant Director of Fishermen,Mettur Dam in letter dated 31.08.2006 in terms of G.O. Ms. No.332,Animal Husbandary and Fisheries Department dated 17.11.1993.9.The learned counsel appearing for the parties reiterated theirrespective contentions mentioned in their pleadings and this Courtcarefully considered the argument on both sides and also perused thematerial records placed.10.The case of the Public Works Department is that theParuthupalli tank is owned by Public Works Department. The case of theObjectors is that the said tank is situate within the jurisdiction ofParuthupalli Panchayat Union, hence, the same can be dealt with only bythe Panchayat Union in terms of the said Rules as well as Appendix I.Though both the Public Works Department and the Objectors have claimedright in the said tank, both of them have not produced any evidence tosupport their respective claims. However, the fact remains that thelease was granted by the Executive Engineer, Public Works Department asper the recommendations made by the Assistant Director of Fisheries,Mettur Dam as well as of G.O. Ms. No.332, Animal Husbandary Departmentdated 17.11.1993 to the society by nomination and not by public auction.11.To decide the issue involved in this writ petition, it isnecessary to refer to Paragraph No.3 of the said G.O. Ms. No. 332 dated17.11.1993, which is extracted below:"3.As per revenue Department standing order211, while granting lease of fishing rights to the Co-operative societies comprised of Fishermen or ofHarijans engaged in fishing should be given the firstopportunity. Auctioning of fishery rights otherwisethan by lease should be resorted to only if no Co-operative Societies of Fishermen or Harijans engagedin fishing or the Panchayats are not willing to takeup the lease. The procedure envisaged in RevenueDepartment standing Order 211 is still in vogue andwill continue to operate in future with themodification indicated in para-4 below regarding theperiod of lease, which will be quinquennial instead ofannual."12.It is contended by the Public Works Department and theDistrict Collector that there is only one society, which is Pallipattu https://hcservices.ecourts.gov.in/hcservices/ Aravangadu Fisherman Society and considering the same only, the leasewas granted by the Public Works Department. If it is so, it should havebeen found mentioned in the counter affidavit filed by either theDistrict Collector or the Executive Engineer, Public Works Department,but it is absent. This Court carefully perused the counter affidavitsof the said authorities and found that no where it is mentioned thatthere is only one society.13.Mr. Raghavachari, the learned counsel appearing for theObjector No.2 relied on Paragraph No.5 of the Impleading Petition andsubmitted that there are number of societies, but the reason is notknown why a particular society alone was whimsically selected andrecommended by the Assistant Director of Fisheries, which was alsoaccepted by the Public Works Department and District Collector. InPara-5 of the affidavit filed in support of the impleading petitionfiled by the Objector No.2, it was mentioned thus:-"5.It is also not known under what authority oflaw the fisheries department had chosen the 5threspondent for the largess. There are several fishingsocieties in the area. Consequently, the need toprefer the 5th respondent alone without holding anauction is inexplicable. It is not within the realmof the Fisheries Department to pick and choose fishingsociety to confer benefits on it. Auction is the onlycourse available to deal with the public property.The facts narrated by the writ petitioner and thedocuments produced by him apparently proves that the3rd respondent had been 'recklessly generous' indealing with the property of the State and that too,without following the basic norms." 14.The said averments made by the Objector No.2 was not denied bythe other parties. One another factor which convinces this Court isthat the lease was ordered only on 20.09.2006 but the lease was grantedwith retrospective effect from 01.07.2006, besides that even beforepassing the Order dated 20.09.2006 granting lease in favour of thesociety the lease amount was received by the Public Works Department on02.09.2006 i.e., 18 days prior to the said order. Moreover, asindicated above, the stand taken by the Public Works Department thatthere is only one society to which the lease was granted is notsupported by any evidence, when it was specifically denied by theObjector No.2 and it is the duty of the authorities to substantiatetheir, but they failed.15.In view of the above discussion, though this Court is notdeciding the title or right relating to the tank, which is the subjectmatter of this writ petition, this Court is of the view that the way inwhich the lease was ordered to the society is not satisfactory, besides,it is illegal, hence, this Court is inclined to allow WP No. 49149 of2006 and consequently, WP No. 3363 and 3364 are liable to be dismissed.16.Accordingly, WP No. 49149 of 2006 is allowed. WP No. 3363 and3364 of 2007 are dismissed. No costs. It is open to the parties to go https://hcservices.ecourts.gov.in/hcservices/ for any further auction or leasing, but first decide the issue about theright or title of Paruthupalli Village, hence, the District Collector,who is having the over all control of the District, is directed todecide the said issue in accordance with law. Consequently, connectedMiscellaneous Petitions are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rshTo1. The Collector Collectorate of Namakkal Namakkal District2. The Tahsildar Thiruchengode Namakkal District3. The Executive Engineer Public Works Department Sarabanga Namakkal District4. The Block Development Officer Mallasamudhram Thiruchengode Taluk Namakkal District5. The Revenue Inspector Vyappamalai Thiruchengode Taluk Namakkal District6. The Inspector of Police Elachipalayam Police Station Elachipalayam Taluk Namakkal District.7. The Asst. Director of Fisheries,Mettur Dam, Salem District. https://hcservices.ecourts.gov.in/hcservices/

8. The Special Officer/Inspector of Fisheries, Pallipattu Avarangadu Fisherman Co-operative Society Jedarpalayam Post Namakkal District9. The President Paruthipalli Village Panchayat Paruthipalli Post Mallasamudram Thiruchengode Taluk Namakkal Post+ 2 CCs to Mr.Anand, Advocate SR NO 29515, 29513WP No. 49149 of 2006WP Nos. 3363 & 3364/200727-04-2007gb[co]Gp/14.5.