Writ Petition No. 16045 of 2024 · The High Court
Case Details
- 1 - NC: 2025:KHC:7181 WP No. 16045 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE R DEVDAS WRIT PETITION NO. 16045 OF 2024 (GM-RES) BETWEEN: MEENU UTHPADAKARA HAAGU MARATAGARARA ABIVRUDHI SAHAKARA SANGHA LTD., REGISTERED UNDER KARNATAKA CO-OPERATIVE SOCIETIES REGISTRATION ACT, 1959, REPRESENTED BY ITS PRESIDENT, SRI. GOVINDARAJU, S/O LATE DODDANARASAIAH, AGED ABOUT 54 YEARS, RAAMANDIRA MUKHYA RASTHE, SRIRAMANAGAR, TUMKUR DISTRICT - 572 101. (BY SRI. VINAYAKA B, ADVOCATE FOR SRI. ABHIJIT HARANAHALLI, ADVOCATE) …PETITIONER Digitally signed by JUANITA THEJESWINI Location: HIGH COURT OF KARNATAKA AND: 1. THE STATE OF KARNATAKA, DEPARTMENT OF ANIMAL HUSBANDRY AND FISHERIES, VIDHANA SOUDHA, BENGALORE - 560 001, REPRESENTED BY ITS SECRETARY. 2. DIRECTORATE OF FISHERIES, REPRESENTED BY ITS DIRECTOR, 3RD FLOOR, PODIUM BLOCK, V.V. TOWER, DR. AMBEDKAR ROAD, BANGALORE - 560 001. - 2 - NC: 2025:KHC:7181 WP No. 16045 of 2024 3. THE DEPUTY DIRECTOR OF FISHERIES, JILLA PANCHAYATH, TUMKUR DISTRICT, TUMKUR - 572 101. 4. THE ASSISTANT DIRECTOR OF FISHERIES, TUMKUR TALUK, TUMKUR DISTRICT - 572 101. 5. SRI. KODI ANJANEYA SWAMY MEENUGARIKE MATTU MEENUGARARA KSHEMABHIVRUDHI SAHAKARA SANGA LTD., NAGAVALLI VILLAGE, REPRESENTED BY ITS SECRETARY, SHRI. NAWAZ, S/O SHRI MD. GOUSE, AGED ABOUT 30 YEARS, RESIDENT OF NAGAVALLI VILLAGE, TUMKUR TALUK AND DISTRICT - 572 101. …RESPONDENTS (BY SRI. MOHAMMED JAFFAR SHAH, AGA FOR R1 TO R4; SRI. M.R. RAJAGOPAL, SENIOR COUNSEL FOR SRI. H.N. BASAVARAJU, ADVOCATE FOR R5) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) QUASH THE ORDER BEARING NO.HAGUPA/01/250/2023, E-1115054, BANGALORE DATED 12/01/2024 PASSED BY THE R2 VIDE ANNEXURE-F BY ISSUING A WRIT OF CERTIORARI AND ETC., THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC:7181 WP No. 16045 of 2024 CORAM: HON'BLE MR JUSTICE R DEVDAS ORAL ORDER This is the third round of litigation between the parties. The subject matter of the litigation is fishing rights pertaining to Mallasandra Tank, situated at Tumkur Taluk, Tumkur District. Earlier, when an order was passed on 20.12.2022 granting fishing rights to the petitioner herein, the 5th respondent-Society filed W.P.No.26009/2022, contending that although the officers had recommended the case of the 5th respondent-Society for the grant of fishing rights, nevertheless, at the instance of the concerned Minister, the fishing rights were granted to the petitioner herein. This Court accepted the contention of the 5th respondent herein and quashed the order dated 20.12.2022 while remitting the matter back to the Director of Fisheries to pass appropriate orders in accordance with law strictly in terms of Clause-4 of the Fishing Policy. Pursuant to the directions issued by this Court, an order was issued on 10.03.2023 conferring the fishing rights in favour of the 5th respondent. - 4 - NC: 2025:KHC:7181 WP No. 16045 of 2024 2. The petitioner herein filed W.P.No.6655/2023 while contending that even as per the documents submitted by the 5th respondent, it was clear that as on the date when the application was filed, no elections were held to the Managing Committee of the 5th respondent- Society, and therefore, having regard to the relevant provisions contained in the fishing rights, the application filed by the 5th respondent should have been rejected. This Court by order dated 20.11.2023 held that the reading of the conditions in the Fishing Policy makes it clear that the applications which did not accompany the documents substantiating the constitution of the Board, its meeting and election, was liable to be rejected. Accordingly, the writ petition was allowed and the order dated 10.03.2023 was set aside while once again remitting the matter back to the Director of Fisheries to pass appropriate orders within a period of four weeks from the date of receipt of a certified copy of the order. Thereafter, the impugned order was passed on 12.01.2024, once again granting - 5 - NC: 2025:KHC:7181 WP No. 16045 of 2024 fishing rights in favour of the 5th respondent. Being aggrieved, the petitioner is before this Court. 3. Learned counsel for the petitioner submits that although there were specific directions issued by this Court on both occasions and specifically in WP.No.6655/2023 that the competent authority had not adverted to the specific issue which were raised in the earlier petition, and this Court set aside such an order while directing the Director of Fisheries to pass appropriate orders, having regard to the issue raised and directed to be considered by this Court, the authority has failed to apply its mind. Learned counsel draws the attention of this Court to the impugned order where it is noticed that the term of the previous Committee of the 5th respondent had come to an end on 14.08.2021. It is also noticed that no elections were held and two representations were made to the competent authority on 27.01.2022 and 18.05.2022 requesting for appointment of an Administrator to take care of the affairs of the Society. Accordingly, on - 6 - NC: 2025:KHC:7181 WP No. 16045 of 2024 30.5.2022, an Administrator was appointed to the 5th respondent-Society. But applications seeking fishing rights were filed a day before the appointment of the Administrator, i.e., on 30.05.2022, by the Secretary of the 5th respondent-Society. Learned counsel would therefore submit that despite all this finding, the fishing rights have been conferred on the 5th respondent although it did not meet the requirements of the Fishing Policy, more particularly, Clause-4. 4. It is also submitted that insofar as the petitioner is concerned, a finding is recorded in the impugned order as was done on the previous occasion that there are no sufficient funds available in the bank account of the petitioner. Learned Counsel would therefore submit that the impugned order is not only contrary to the Fishing Policy, but also not in compliance of the directions issued by this Court. It is also submitted that the requirement of the Fishing Policy is that the bidders are required to furnish audited statement of accounts for a period of 3 - 7 - NC: 2025:KHC:7181 WP No. 16045 of 2024 years which has not been complied by the 5th respondent. What was submitted by the 5th respondent is only audited statement of accounts for a period of 2 years.
Legal Reasoning
5. Learned Senior Counsel Sri.M.R.Rajagopal, appearing for the 5th respondent-Society would draw the attention of this Court to the previous order in W.P.No.6655/2023 to point out that this Court noticed the provisions of Section 28A and more particularly, sub- section (5) of the Karnataka Co-operative Societies Act, 1959, and directed the authority to consider the question as to whether the application filed by the 5th respondent herein was in compliance with the requirement of condition No.4 of Fishing Policy or not, while having regard to the provisions contained in Section 28A of the Karnataka Co-operative Societies Act. Further, the learned Senior Counsel would submit that the condition contained in the Fishing Policy viz., Clause 4, it is not in consonance with the provisions contained in Section 28A, more particularly, sub-section (5) which provides that if the new Board is not constituted under Section 29A of the - 8 - NC: 2025:KHC:7181 WP No. 16045 of 2024 Act, on the date of the expiry of the term of office of the Board or if the elections are not held within the time limits specified in Section 39A, the Registrar or any other officer within whose jurisdiction this Society is situated, and who is authorised by the Registrar, shall be deemed to have assumed charge as Administrator and for all purposes such Administrator shall function as the board of management. The learned Senior Counsel would submit that the Fishing Policy being an executive order cannot undermine the statutory provision, which clearly provides that even if the elections are not held, by a deeming provision an Administrator is deemed to have assumed that the functions of the board of management. This aspect of the matter has been considered by the authorities while passing the impugned order. 6. As regards the facts standing as on date, it has been clarified that the 5th respondent has dropped fingerlings and the fishes are ready to be harvested. 7. Having heard the learned counsel for petitioner, the learned Senior Counsel for the 5th respondent-Society, - 9 - NC: 2025:KHC:7181 WP No. 16045 of 2024 the learned Additional Government Advocate and on perusing the position papers, this Court finds that on both the occasions when the matters were remanded back to the authorities, they were directed to consider the applications filed by the petitioner as well as the 5th respondent-Society and give a finding as to whether the applications filed by them were in compliance of the conditions found in the Fishing Policy, more particularly, Clause 4 of the Fishing Policy, 2014. 8. As rightly pointed out by the learned Senior Counsel, in the impugned order the Director of Fisheries has found in paragraphs No.3 and 4 that the term of the previous elected body of the 5th respondent had come to an end on 14.08.2021. It was noticed that two representations were given on 27.01.2022 an 18.05.2022 for appointment of an Administrator. Accordingly by order dated 31.05.2022 an Administrator was appointed to the 5th respondent-Society, but the application for fishing rights were filed at the hands of the Secretary of the 5th - 10 - NC: 2025:KHC:7181 WP No. 16045 of 2024 respondent on 30.05.2022, even before the Administrator was appointed to the Society. 9. The Fishing Policy of 2014 clearly provides at sub-clause (E) under Clause 4, the order of priority. In clause (F), it provides that if more than one eligible society have filed applications, then by auction, the fishing rights shall be conferred only between the societies that are found to be eligible. 10. Further, in Annexure-4 of the Fishing Policy at condition No.4, it is clearly provided that the application shall accompany documents pertaining to the General Body Meeting of the society and the elections held to the managing committee; an audited statement of account at least for 3 years from the past 5 years. If that is the requirement, and if the authority found that the 5th respondent did not furnish the documents showing the holding of the Annual General Body Meeting and elections for the Governing Body, then there was no scope for the authority to so say that despite the 5th respondent not - 11 - NC: 2025:KHC:7181 WP No. 16045 of 2024 furnishing the documents, they were still eligible for grant of fishing rights. 11. In paragraph No.6 of the impugned order after the Director of Fisheries found that the requisite documents were not tendered at the hands of the 5th respondent, nevertheless, it is found that on 23.01.2023 elections were held to the 5th respondent-Society. Surely, this cannot be the consideration for the scrutinization of the applications tendered at the hands of the 5th respondent. The application which was tendered on 30.05.2022 cannot be considered on the basis of an election held to the society subsequently on 23.01.2023. It is also follows that if subsequent events could be considered for the benefit of the 5th respondent-Society, then similar benefit should have been given to the petitioner regarding the funds available as on the date of reconsideration. 12. The submission of the learned Senior Counsel that the condition found in the extant Fishing Policy is not in consonance with the provisions of the Karnataka Co- - 12 - NC: 2025:KHC:7181 WP No. 16045 of 2024 operative Societies Act, cannot be accepted for the simple reason that if the 5th respondent found that the policy or any of the conditions are contrary to any of the statutory provisions contained in the Karnataka Co-operative Societies Act, then it was for the 5th respondent-Society to have raised a challenge to such a condition which may be contrary to the provisions of a statute. At this juncture, when no such challenge is raised to the provision, the authorities are not permitted to consider such a submission made at the hands of the 5th respondent. It is also true that such a finding is not given in the impugned order. 13. Nevertheless, having regard to the admitted fact that subsequently elections were held to the 5th respondent-Society on 23.01.2023 and there is an elected body governing the 5th respondent, the subsequent bid that may be called for may be considered on the basis of the facts obtaining hereafter. 14. As regards the finding of the Director of Fisheries insofar as the petitioner is concerned, that the minimum - 13 - NC: 2025:KHC:7181 WP No. 16045 of 2024 amount was not found in the bank account of the petitioner herein, learned Counsel for the petitioner submitted that Annexure-1 of the Fishing Policy dated 21.02.2014, more particularly, Clause 6) provides that the society should have sufficient funds for procuring a minimum of 2000 fingerlings per hectare of water spread area; and sufficient funds for providing Security Deposit available in the bank account of the society. It has been contended that the petitioner-society had sufficient funds in the accounts. 15. Having regard to the subsequent developments inasmuch as the elections being held to the 5th respondent-Society and there being an elected body governing the 5th respondent-Society and the fact that the petitioner is also contending that it has got sufficient funds in its account in the bank and having regard to the fact that a year has elapsed subsequent to the passing of the impugned order, this Court is of the considered opinion that, appropriate directions will have to be issued to the competent authority to redo the entire process. - 14 - NC: 2025:KHC:7181 WP No. 16045 of 2024 16. This Court is of the considered opinion that having regard to the findings rendered by the Director of Fisheries regarding the eligibility of the 5th respondent inasmuch as the holding of the elections and the furnishing of the audited statement of accounts for a minimum period of 3 years, if both the societies are permitted to furnish all relevant information that would meet the requirement of the Fishing Policy, it may be a case where the rights of fishing will have to be auctioned in terms of the provisions of the Fishing Policy, if both the societies are eligible for grant of fishing rights. 17. Accordingly, this Court proceeds to pass the following:
Decision
ORDER (1) The writ petition is partly allowed. (2) Having regard to the subsequent developments, both the societies before this Court viz., the petitioner as well as the 5th respondent-Society are permitted to furnish all documents which could meet the - 15 - NC: 2025:KHC:7181 WP No. 16045 of 2024 requirement of the Fishing Policy, afresh, within a period of 4 weeks from today. (3) The Director of Fisheries shall reconsider the documents that would be submitted by both the societies for grant of fishing rights for the remaining period of 2 years. (4) If the Director of Fisheries finds that both the societies meet all the requirements in terms of the Fishing Policy, then the Director may proceed to auction the fishing rights between the petitioner as well as the 5th respondent. (5) If it is found that one of the societies does not meet the requirement, then the fishing rights will be awarded to the other society which meets all the requirements. (6) After verification and consideration of the documents, an appropriate order should be passed by the Director of Fisheries in accordance with law, as expeditiously as - 16 - NC: 2025:KHC:7181 WP No. 16045 of 2024 possible and at any rate within a period of 4 weeks from the date when which the documents are tendered by both the societies. (7) Till a decision is taken by the Director, the 5th respondent-Society is permitted to harvest the fishes in the tank in question. Ordered accordingly. Sd/- (R DEVDAS) JUDGE rv,DL List No.: 1 Sl No.: 11 CT: BHK