Govindraj Naik and Others vs The Principal Secretary Government of Karnataka and Others

L. Narayana Swamy, J.—The petitioners in this petition claim that they are the members of the fishing society and owners of the land that have been sub-merged in Parapur tank situated in Parapur village in Mundargi Panchayat, Deodurg Taluk, Raichur District is in an area of 60 hectares and there is effective water-spread in the tank. The respondent No. 6-Panchayat Development Officer, Grama Panchayat, Mundargi, by Resolution Annexure-D dated 18th September 2013 has auctioned fishing rights and leased the tank in favour of respondent No. 7. The impugned action of respondent No. 6 is challenged in this petition and the prayer is to set aside the same.

The grounds urged by the learned counsel for the petitioners are that vide Official Memorandum Annexure-B dated 7th August 2013 the Director of Fisheries has sought information from the Senior Assistant Director, Fisheries, Raichur that since the tank (for which fishing right is leased by the respondent No. 6 in favour of respondent No. 7) is in an extent of 60 hectares and would feed about 2,032 hectares of land and why the said tank has not been disposed by the Grama Panchayat since the tank comes under the purview of the Department of Fisheries and such an extent of water body is to be leased out by the Director of Fisheries only. The learned counsel further submits that Rule 6 of the Karnataka Panchayat Raj Right (Acquisition and transfer of moveable and immovable properties by Grama Panchayat) Rules, 1996 (hereinafter referred to as ''Rules'' for short), provides that leasing of the public property is to be done with a prior notice and the notice to be taken out in a local newspaper. The said provision has not been complied with before leasing. The respondent No. 6 has no power to lease out the tank, which exceeds an extent of 60 hectares as per the Official Memorandum dated August 2013. The learned counsel has referred the Government Order in No. P.Sam.Mee/167/Me.E.E/2005, Bangalore dated 28th January 2006 and particularly refers to item (ee) in para No. 1, which further provides that irrespective of the fact that though the tank is under jurisdiction of any department/authority or statutory authorities, it is the Director of Fisheries who has got power to lease the fishing rights of the tank. This mandatory provision has not been complied with by the respondent No. 6. The Gram Panchayat has no power or authority to lease fishing right of the tank in favour of the respondent No. 7.

The learned counsel appearing for the respondent No. 7 submits that as per communication dated 25th July 2009 addressed by the Deputy Director of Fisheries, Bellary to the Senior Assistant Director of Fisheries, Raichur, that if the tank is less than 60 hectares, it is the Gram Panchayat, which has got power to lease the fishing right of the tank. It is also submitted that the respondent No. 7 has invested huge amount and at this stage, if the petition is allowed, he will be put to great financial hardship.

The learned Government Advocate submits that as per Official Memorandum Annexure-B dated 7th August 2013, it is the Fisheries Department, which has got power to lease the fishing rights of the tank. When the Official Memorandum itself discloses that if the extent of tank is more than 60 hectares, then it is the Director of Fisheries who has got right to lease the tank, without there being any power or authority, the respondent No. 6 has leased the tank which is more than 60 Hectares to the respondent No. 7 and the same is bad in the eye of law.

Heard the learned counsel for the parties. In the light of the dispute between the parties and in the light of the Government communication and notification referred to above, to lease the tank of which its extent is of more than 60 hectares, it is the Director of Fisheries who has got the right. When the tanks are declared as public property though it comes under the purview Minor Irrigation Department, for the purpose of deciding fishing right, it is the Director of Fisheries who has got the right to lease it and before leasing it. Whether it is a gram panchayat or the Director of Fisheries or any other authority for that matter, there shall be a wide publication inviting applications from the interested persons for leasing the tank irrespective of the fact whether the tank is more than 60 hectares or less than that. Priority has to be given for the deserving groups, viz. Association of Fisheries, local persons and other local groups, including Stree Shakti, etc. The leasing right shall not be decided only on the basis of money power and that too when the lessee is a trader basically staying away from the village. Socio-economic position of the lessee has to be taken note of while leasing the tank. As it is referred under Rule 6 of the Rules, the leasing of the tank shall be done only by publication in local newspaper after providing fullest opportunity. I find no such effort is made by the respondent No. 6 before leasing the tank to respondent No. 7. Hence, I pass the following:

ORDER

Annexure-D dated 18th September 2013 passed by the Panchayat Development Officer, Mundargi Grama Panchayat, Deodurga Taluk, Raichur District stands quashed.

Respondent No. 2-the Director of Fisheries is directed to clarify as to whether the respondent No. 6 has got power to lease fishing rights to any persons including respondent No. 7;

As per Official Memorandum dated 7th August 2013, if the Director of Fisheries is the appropriate authority to lease the fishing rights, then he shall issue such Notification to all Grama Panchayats in the State bringing it to their notice that it is only the Director of Fisheries who is the appropriate authority to issue fishing rights and none else. If Respondent No. 2 feels that Grama Panchayat has got power, to that extent it is for the authority to such notification at the earliest.

The second respondent is directed to communicate the observations made hereinabove to the respondents No. 6-the Panchayat Development Officer, Mundargi Gram Panchayat, Deodurga Taluk, Raichur District and respondent No. 7.

If a fresh notification is issued for leasing fishing rights of the tank, liberty is also reserved to the respondent No. 7 to participate in the tender.

The respondent No. 7 has produced the bills for having purchased fish seedlings to rear in the tank. If the respondent No. 7 becomes unsuccessful in the tender, the person in whose favour the lease would be granted, shall be directed to refund to said amount to he seventh respondent.

With these observations, petitions stand disposed of.