Jai Bhairav Machhua Samooh vs State Of Madhya Pradesh And Others

This petition under Article 226/227 of the Constitution of India has been filed seeking the following reliefs:-

“i) That, the NIT annexure P/1 may kindly be quashed and the respondent No.2 be directed to finalise the second NIT dated 8.10.2015 or in the

alternative, only the Fisheries Department may be allowed to issue the third NIT,

ii) any other relief deemed fit in the facts and circumstances of the case doing justice in the matter including costs be also awarded.â€​

It is submitted by the counsel for the petitioner that the Zila Panchayat Gwalior had issued NIT for grant of fishing rights in Parsen Pond situated in

Zila Panchayat Morar, District Gwalior. First NIT was issued, however, as the fishing rights could not be granted to any bidder, therefore, the second

NIT was issued on 8/10/2015 and the petitioner had participated in the said NIT. However, the respondent no.2 has issued the order on 8/8/2013 for

inviting application for grant of fishing rights. Decision taken by the Zila Panchayat Gwalior by its order dated 8/8/2016 has been challenged on various

grounds.

The counsel for the petitioner has confined his submissions to only one ground that a fishing policy dated 8/10/2008 has been issued by the Fisheries

Department and according to Clause 1.8, in case if fishing rights could not be awarded to anybody in spite of second NIT, then the same shall be

awarded by the competent authority of Fisheries Department. Thus, it is submitted that after failure of the respondent no.2 to grant fishing rights in

accordance with the second NIT, which was issued on 8/10/2015 now the respondent no.2 has no right to issue third NIT and only the Fisheries

Department is competent to grant fishing rights. This ground has been specifically taken by the petitioner, which reads as under:-

“6.3 That, the impugned NIT is a third NIT for the same purpose and the earlier tow NITs dated 31.8.2015 and 8.10.2015 have been cancelled

without assigning any reason. As per Clause 1.8 pf Part â€" I of the Fisheries policy, the Zila Panchayat has no right for issuance of the third NIT if it

fails to award fishing rights even after two successive NITs for the purpose. Such fishing rights can only be awarded by the Fisheries Department.

6.4 That, such a provision has been engrafted in the policy only for the reason that the tender process may not be managed to favour some specific

group/society only and repeated tenders to award the tender to a particular entity only are avoided. The respondent No.2 is doing just that, and is

repeatedly issuing NITs without even cancelling the earlier NIT and this is just to linger on the process till such time the society whom the tender is

pre-decided to be allotted, comes in existence.

6.5 That, now the sole right to award the fishing right is with the Fisheries Department because the Zila Panchayat failed to finalise the matter despite

Jai Bhairav Machhua Samooh Vs. The State of M.P. and others repeated opportunities and within three months of the second NIT. Thus, the

impugned NIT deserves to be struck down on this ground alone.â€​

The respondents no.1 and 3 have filed a very vague and evasive return. No attempt has been made by the State Government to give reply to

grounds 6.3 to 6.5. The reply to grounds raised by the petitioner, as mentioned in the return filed by respondents no.1 and 3 reads as under:-

“6. Reply of the grounds

That, the averments as made in ground paragraphs of this petition are highly misconceived, hence not admitted. Petitioner is not entitled to raise any

new ground, which he has not mentioned in the present petition. No ground is available to the petitioner. The citation raised by the petitioner and

citation mentioned in the grounds is not applicable in the present case. In the light of submissions it is clear that petition of the petitioner is deserves to

be dismissed and orders do not call any interference.â€​

Thus, it is clear that the respondents have not controverted the contention of the petitioner with regard to the competence of the respondent no.2 to

issue third NIT. Under these circumstances, this Court is left with no other option, but to hold that the provision of Clause 1.8 of the fishing policy

dated 8/10/2008 is mandatory in nature and after the second NIT had failed, the respondent no.2 has lost its right to issue third NIT and the respondent

no.2 was left with no other option, but to request the respondent no.1 to take further action for grant of fishing rights. However, it is submitted by the

counsel for the respondents that in order dated 8/8/2016 the Chief Executive Officer, Zila Panchayat Gwalior has not mentioned that for the third time,

the applications are being invited for grant of fishing rights in Parsen Pond. It is submitted that as the second NIT could not fetch any eligible bidder,

therefore, it cannot be said that the order dated 8/8/2016 does not amount to third NIT.

Considered the submissions.

The first NIT was issued on 31/8/2015 and thereafter, the second NIT was issued on 8/10/2015 for grant of fishing rights for a period of ten years.

It is not the case of the State that any fishing right was granted to anybody in response to the second NIT dated 8/10/2015. Even otherwise, when the

rights were to be granted for a period of ten years and if a fresh application is invited for grant of fishing rights within a period of ten years, then it has

to be presumed that such an order is nothing but continuation of the process for grant of fishing rights. Therefore, the petitioner is right in submitting

that the order dated 8/8/2016 is nothing but a third NIT.

This Court by order dated 19/8/2016 had issued the interim order directing that the impugned NIT shall not be acted upon for finalization of bids till

the next date of hearing. It is submitted that the bids have not been finalized so far.

Accordingly, the order dated 8/8/2016 passed by the Chief Executive Officer, Zila Panchayat Gwalior, by which the applications are invited from

Fishing Cooperative Committees/Groups for grant of fishing right is hereby quashed. The respondents are directed to proceed further in accordance

with the fishing policy, which at present is in force.

With aforesaid observations and directions, the petition is finally disposed of.