Doddigunta Fisherman Co-operative Society vs State of Andhra Pradesh and others

Doddigunta Fisherman Co-operative Society, Doddigunta Village, Rangampet Mandal, Peddapuram Taluq, East Godavari District filed this writ petition'' questioning the action of the 4th respondent-Divisional Panchayat Officer as illegal and arbitrary in fixing the upset price for leasing out the fishing rights in the vura tank for the years 1996 to 1999 and also the action of the respondents 6 and 7 in auctioning leasehold rights in favour of respondent Nos. 8 and 9 in violation of the guidelines given by the Government in G.O.Ms. No. 343, Panchayat Raj (Sam. O Department, dated 10-4-1978 by raising various grounds.

The facts leading to the filing of this case are that the Society in question came into existence several years back and it was enjoying the leasehold rights of fishing in Vooracheruvu tank of Doddigunta Village, Rangampet Mandal, Peddapuram Taluq, East Godavari District from its formation years and was paying the upset price fixed by the Gram Panchayat as well as the Divisional Panchayat Officer till the years 1993 to 1996. The lease in favour of the Society was renewed as per the statutory rules issued in the G.O. referred supra at an upset price of Rs. 11,0007- per year. It is the case of the Society that on 23-04-1996 the total lease amount of Rs.33,0007- for the entire period was paid to the Sarpanch and he lias also issued a receipt evidencing the receipt of the amount. But subsequently it came to light that the Sarpanch did not deposit the amount in the Gram Panchayat account and swallowed the same. In those circumstances the Group Executive Officer i.e., the 6th respondent herein by his proceedings dated 06-09-1996 called upon the Society to pay the arrears for the years 1993 to 1996 and also give willingness to take up the lease of fishing rights for the next three years at the upset price fixed at Rs. 27,0007-per year by the 4th respondent. In other words the upset price was raised by 1-172 times than what they were paying although. Having received this communication, the Society made a representation to the Collector on 26-9-1996 and the Collector in his turn directed the Divisional Panchayat Officer to conduct an enquiry- and submit a report within 10 days and it is the case of the Society that the Divisional Panchayat Officer did neither conduct any enquiry nor submitted any report as directed by the Collector till this date.

While things stood thus once again the 6th respondent by his proceedings dated 7-11-1996 called upon the Society to give its willingness if it wants to continue the lease for the next throe years at the lease amount of Rs.27,000/- per year or not as fixed by the 4th respondent by making it clear that if the Gram Panchayat does not receive any reply within 7 days, fishing rights in the tank will be put to auction. Having received this communication the Society made a representation to the Collector on 21-12-1996 to reduce the upset price fixed by the Divisional Panchayat Officer. Nothing turned up on such a representation, hi the mean time, the Gram Panchayat issued auction notice on 9-1-1997. As per the said notice the fishing rights in Vooracheruvu tank will be leased out for a period of 3 years and the auction shall take place at 3 p.m. on 17-01-1997 subject to the conditions specified therein. (1) Intending bidders have to deposit Rs. 500/- as E.M.D. before participating in the auction. (2) Persons who owe monies to the Gram Panchayat arc not eligible to participate in the auction (3) After knocking down the bid 1/3 of the amount has to be deposited (4) The balance of the lease amount has to be deposited within one week thereafter. (5) If the auction purchaser having deposited l/3rd of the lease amount fails to deposit the rest of the amount, the auction in his favour will be annulled and fresh auction will be conducted. (6) If the Gram Panchayat sustains any loss because of the reaction the same has to be reimbursed by the bidder concerned and as there were no bidders the auction was postponed to 27-1-1997. On that day auction was held in favour of respondent Nos. 8 and 9 for a sum of Rs.1,40,000/- and they seemed to have deposited Rs. 16,0007- i.e., l/3rd of (he lease amount per year and they were put in possession of the tanks. Questioning the action of the 4th respondent in raising the upset price from Rs.l 1,0007- to Rs.27,0007- and also ''the auction held by the Gram Panchayat in favour of the respondents 8 and 9, the present writ petition was filed.

Admittedly the lease of fishing rights in the tanks held by the Grain Panchayats is covered by statutory rules issued by the Government in G.O.Ms. No. 343, Panchayat Raj (Sam.I) Department, dated 10-04-1978. Rule 2 deals with the fixation of upset price by the Divisional Panchayat Officer which is to the following effect:

"Before the fishery rights in the tank or other sources are leased out or auctioned by the Gram Panchayat, the Executive Authority of the Gram Panchayat shall make an application to the Divisional Panchayat Officer concerned furnishing therewith the particulars of Revenue received on such lease of Minor Irrigation tanks and tanks or other sources during the past five years together with the cost and quantity of seed charged and other relevant factors to fix an upset price''''.

Under the proviso the Collector (Panchayat) is having power to reduce the upset price fixed by the Divisional Panchayat Officer. From the above it is seen that the Executive Authority of Grain Panchayat has to make an application to the Divisional Panchayat Officer furnishing particulars of revenue for the past five years on the tank in question along with the cost and quantity of the seed that is likely to be stored in the tank and other relevant factors to fix the upset price. hi Rule-2(b) it is stated that the Divisional Panchayat Officer has to fix the upset price taking into consideration the revenue received by the tank in the previous years, the market value and other factors. But the rules do not throw any light "what the Government mean by market value" and other factors". The G.O. being a beneficial piece of legislation intended to avoid unemployment and to raise the economic standards of fishermen, a liberal construction has to be placed on the above two words. To my mind the Divisional Panchayat Officer is expected to take the quantity of the seed that can be stored in the tank, the cost of the seed, and the quantity of the fish that will be available at the end of the year for catch and the income derived thereon by giving necessary margin for mortality, theft, etc., and also to the membership of the Society for fixing the upset price so that the venture should be a viable one and it gives not only the bread and butter that is required to the members of the Society every day but also to improve their social and economic standards in the Society. In other words they should have decent clothing, shelter, giving education to the children, etc. With a view to give liberal interpretation to these words, the Government left the matter there without specifying what the market value means, whether the market value is of the seed, feed or the end product. But die main thrust in fixing the upset price is the revenue received in the previous years on the tank. After receiving the orders of the Divisional Panchayat Officer which do not throw any light in raising the upset price by 1-1/2 time. I summoned him to the Court along with the record maintained by him to find out how he arrived at this fanciful figure. He has produced one statement along with the application made by the Sarpanch. The Gram Panchayat had conducted a meeting on 20-06-1996. In resolution No.71, requesting the fourth respondent to fix the upset price at Rs. 60,000/- for the lease period of three years. But while communicating the resolution the Sarpanch in his letter stated that the Society is fetching an income of Rs. 1,50,000/- and the upset price should be fixed at Rs, 20,0007- per year. Along with the applications the details of the tank, the period of lease, income derived in the last three years and the request of the Gram Panchayat were submitted. All these particulars were shown from column 1 to 11. In column 12 the Panchayat Extension Officer on his own raised the upset price to Rs. 25,000/-. In column No. 13 the Divisional Panchayat Officer further raised it to Rs.27,000/-. But both the officers did not give any reasons for fixing the upset price over and above the upset price suggested by the Gram Panchayat. Except this there is no material whatsoever for fixing this upset price. Though the Collector is having power to rectify the arbitrary action of his subordinates and give effect to the will of the Legislature under the G.O., he did not choose to act in the matter though the Society approached the Collector number of times saying that the upset price was fixed so arbitrarily.

In the light of the foregoing discussion I hold that the action of the Divisional Panchayat Officer in fixing the upset price at Rs. 27,000/- is highly illegal, arbitrary and it is nothing but non-application of mind.

Accordingly the order is set aside. Coming to the auction held by the Gram Panchayat under Rule 5 in leasing of fishing rights through open auction shall be only for a period of one year. Only in case of lease in favour of Fishermen Co-operative Societies or Rajaka Seva Sangham as the case may be, the lease can be given at a time for a period of three years. But in this case the Sarpanch having misappropriated (he lease amount collected from the Society with a view to see that the Society is deprived of the lease of fishing rights straightaway issued notice to auction the leasehold rights for a period of three years. Assuming for a moment the action of the Sarpanch is justified, under Clause III of the rules l/3rd of the lease amount has to be deposited in the Bank on the same day, Admittedly the bid was knocked for a sum of Rs. 1,40,000/- and l/3rd of the lease amount comes to Rs. 46,675/-. But from the counter filed by the Gram Panchayat the successful bidder paid only Rs. 16,000/-. Under Clause V the rest of the amount lias to be paid within one week from the date of auction. That was also not done in this case. The auction conducted by the Gram Panchayat on its own also did not follow the rules and the same has to be set aside. Though the auction purchasers were made as party respondents, they did not choose to appear in this case to putforth their plea. Hence they are set ex parts. In the light of the view taken by me the lease of fishing rights in favour of respondents 8 and 9 is set aside and "as two years of the lease expired during the pendency of this writ petition by 30-6-1998 the official respondents i.e., Gram Panchayat and the Divisional Panchayat Officer who were present in the Court shall take possession of the tanks forthwith without further loss of time and it is always open to the respondents 8 and 9 to work out their remedies against the Gram Panchayat for claiming compensation if any.

The Gram Panchayat shall make an application to the Divisional Panchayat Officer within one week from the date of receipt of a copy of this order and within two weeks thereafter the Divisional Panchayat Officer shall fix up the upset price in the light of the observations made in the judgment and without being obsessed with the amount fetched in that auction and communicate the same to the Gram Panchayat. The Gram Panchayat in its turn shall serve notice both in person and by registered post on the Society to find out its willingness to take the lease of fishing rights for the next three years and take auction for leasing out the fishing rights in the vura tank of the village.