Andhra Pradesh High Court - Amravati
Kaluvoy Fishermen Cooperative ... vs The State Of Andhra Pradesh on 23 February, 2021
Bench: R Raghunandan Rao
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
***
Writ Petition Nos.13865, 14118, 14304, 14532, 16601,
16818, 17382 & 17808 of 2020
W.P.No.13865/2020
Between:
#1. Kaluvoy Fishermen Cooperative Society, rep. by its president Vajrala
Srinivasulu, S/o.V. Seshaiah, Kaluvoy Village Mandal, SPSR Nellore District.
2. Dachuru Fishermen Cooperative society Rep. by its president K. Chenchaiah
S/o. Chenchu Ramaih, having its office at Dachuru village, Kaluvoy Mandal,
SPSR Nellore District.
... Petitioners
AND
$ 1. The State of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi,
Guntur District.
2. The State of Andhra Pradesh rep. by its Special Chief Secretary to
Government (FAC) Animal Husbandry, Diary Development and Fisheries
Department, Velgapudi, Guntur District.
3. The Commissioner of Fisheries, Vijayawada, Krishna District.
4. The District Collector, Nellore, SPSR Nellore District.
5. The Joint Director of Fisheries, Nellore, SPSR Nellore District.
... RESPONDENTS
Date of Judgment pronounced on : 23-02-2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
1. Whether Reporters of Local newspapers : Yes/No
May be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether the Lordship wishes to see the fair copy : Yes/No
Of the Judgment?
2 RRR,J
W.P.No.13865/ 2020 & batch
*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
* HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
+Writ Petition Nos.13865, 14118, 14304, 14532, 16601,
16818, 17382 & 17808 of 2020
% Dated:23-02-2021
W.P.No.13865/2020
Between:
#1. Kaluvoy Fishermen Cooperative Society, rep. by its president Vajrala
Srinivasulu, S/o.V. Seshaiah, Kaluvoy Village Mandal, SPSR Nellore District.
2. Dachuru Fishermen Cooperative society Rep. by its president K. Chenchaiah
S/o. Chenchu Ramaih, having its office at Dachuru village, Kaluvoy Mandal,
SPSR Nellore District.
... Petitioners
AND
$ 1. The State of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi, Guntur
2. The State of Andhra Pradesh rep. by its Special Chief Secretary to
Government (FAC) Animal Husbandry, Diary Development and Fisheries
Department, Velgapudi, Guntur
3. The Commissioner of Fisheries, Vijayawada, Krishna District.
4. The District Collector, Nellore, SPSR Nellore District.
5. The Joint Director of Fisheries, Nellore, SPSR Nellore District.
... Respondents
W.P.No.14118/2020
Between:
#1. Somasila Inland Fishermen Cooperative Society Ltd Regd.No.F 74 Rep by its
President India Polaiah S/o India Subbaiah Aged about 51 years R/o Hill
Colony Somasila Village Ananthasagaram Mandal S P S R Nellore District
2. Soamavarappadu Fishermen Cooperative Society Regd.No.F 42 Rep by its
President Penumalli Ramesh S/o Ramakrishna R/o Somavarappadu Village
Beside Cheruvukatta Pakkana Jaladanki Mandal S P S R Nellore District.
3. Yanadi Fishermen Cooperative Society Regd No F 92 Koakolluvaripalli Village
Varikuntapadu Mandal Rep by its President Alluri Polaiah S/o A Kondaiah
Aged about 55 years R/o Thurpurompidodla Thurpurompidodla Mandal S P S
R Nellore District
4. Gandipalem Fishermen Cooperative Society Regd No F 88 Rep by its
President Mirapalli Guravaiah S/o Guravaiah Aged about 31 years R/o 2111
Venugopala Rao Nagar Gandipalem Village Gandipalem Mandal S P S R
Nellore District.
5. Kavali Fishermen Cooperative Society Ltd SC Regd No F 28 Rep by its
President Yellanti Venkateswarlu S/o Yenadaiah R/o 1129 Adi Andhra Street
Kavali Kavali Mandal S P S R Nellore District
6. Chinakraka Fishermen Cooperative Society Regd No F 25 Rep by its President
Nilam Hajarathaiah S/o Kondaiah Aged about 57 years R/o Annavaram
Village Jaladangi Mandal SPSR Nellore District
7. Kandanuthala Fishermen Cooperative Society Regd No F 68 Rep by its
President Anchipakaia Suryanarayana S/o Kotaiah Aged about 44 years R/o
Kandanuthala Village Bogavolu Mandal S P S R Nellore District
... Petitioners
3 RRR,J
W.P.No.13865/ 2020 & batch
AND
$ 1. The Government of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi,
Guntur District.
2. The Commissioner of Fisheries, Vijayawada, Krishna District.
3. The District Collector, Nellore, SPSR Nellore District.
4. The Joint Director of Fisheries, Ex-officio Additional Registrar of Cooperative
Societies Nellore, SPSR Nellore District.
... Respondents
W.P.No.14304/2020
Between:
#1. Fishermen Cooperative Society Koduru PatapalemV Rep By its President Sri
Kanji Sriramulu S/o Anjaiah Aged about 64 years Koduru Patapalem Village
TP Gudur Mandal SPSR Nellore Dist
2. Fishermen Cooperative Society Vidavaluru Rep By Its President Sri Purini
Narisimham S/o Peda Narasimham Age 74 years Resident of Vidavaluru
village Vidavaluru Mandal SPSR Nellore Dist
3. Fishermen Cooperative Society Thummalapenta Rep by its President Sri
Vayala Saibabu S/o Shankariah Age 28 years Resident of Thummalapenta
Peddapattapupalem V Kavali Mandal
... Petitioners
AND
$ 1. The Government of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi,
Guntur District.
2. The Commissioner of Fisheries, Pranki, Vijayawada, Krishna District.
3. The Joint Director of Fisheries, Nellore, SPSR Nellore District.
4. The Assistant Director of Fisheries, Nellore SPSR Nellore District.
... Respondents
W.P.No.14532/2020
Between:
#1. Veerannakanupuru Fisherman Cooperative Society R No F 33 Represented
by its President Kanukuru Venkata Subbaiah S/o Narasaiah Age 65 years R/o
Kanupuru Village Venkatachalam Mandal SPSR Nellore District
2. K D Reservoir Fisherman Cooperative Society R No K 239 Represented by Ex
President Molakala Dasaiah S/o Narasaiah Age 58 years R/o Gandhi Jana
Sangam Girijana Colony Padamatipalem Post Sangam Mandal SPSR Nellore
District
3. Varakavipudi Fisherman Cooperative Society R No F 1 Represented by its
Ex President Amari Srinivasulu S/o Pedasubbaiah Age 65 years R/o
Harijanawada Varakavipudi Village T P Gudur Mandal SPSR Nellore District
4. Ananthasagaram Fisherman Cooperative Society R No F 26 Represented by
its President Shaik Mahaboob Basha S/o Sattar Sa Age 55 years R/o Guntha
Bazar Ananthasagaram Post and Mandal SPSR Nellore District
5. Pedaputhedu Fisherman Cooperative Society R No F 20 Represented by its
Ex President Bathala Ravindra S/o Venkata Subaiah Age 60 years R/o
Pedaputtedu Village and Post Dagadarthi Mandal SPSR Nellore District
6. New Alluru Fisherman Cooperative Society R No F 84 Represented by its
President Valimeti Veera Raghavul S/o Veeraswamy Age 45 years R/o
Allurpet Village Allur Mandal SPSR Nellore District
... Petitioners
4 RRR,J
W.P.No.13865/ 2020 & batch
AND
$ 1. The Government of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi,
Guntur District.
2. The State of Andhra Pradesh rep. by its Special Chief Secretary to
Government (FAC) Animal Husbandry, Diary Development and Fisheries
Department, Velgapudi, Guntur District.
3. The Commissioner of Fisheries, Vijayawada, Krishna District.
4. The District Collector, Nellore, SPSR Nellore District.
5. The Joint Director of Fisheries, Nellore, SPSR Nellore District.
... Respondents
W.P.No.16601/2020
Between:
#1. Somasila Inland Fishermen Cooperative Society Ltd Regd No F 74 Rep by its
President India Polaiah S/o India Subbaiah Aged about 51 years R/o Hill
Colony Somasila Village Ananthasagaram Mandal S P S R Nellore District
2. Soamavarappadu Fishermen Cooperative Society Regd No F 42 Rep by its
President Penumalli Ramesh S/o Ramakrishna R/o Somavarappadu Village
Beside Cheruvukatta Pakkana Jaladanki Mandal S P S R Nellore District
3. Yanadi Fishermen Cooperative Society Regd No F 92 Koakolluvaripalli Village
Varikuntapadu Mandal Rep by its President Alluri Polaiah S/o A Kondaiah
Aged about 55 years R/o. Thurpurompidodla Thurpurompidodla Mandal S P
S R Nellore District
4. Gandipalem Fishermen Cooperative Society Regd No F 88 Rep by its
President Mirapalli Guravaiah S/o Guravaiah Aged about 31 years R/o 2111
Venugopala Rao Nagar Gandipalem Village Gandipalem Mandal SPSR Nellore
5. Kavali Fishermen Cooperative Society Ltd SC Regd No F 25 Rep by its
President Yellanti Venkateswarlu S/o Yenadaiah R/o 1129 Adi Andhra Street
Kavali Kavali Mandal SPSR Nellore District 6 Chinakraka Fishermen
Cooperative Society Regd No F 25
6. Chinakraka Fishermen Cooperative Society Rep by its President Nilam
Hajarathaiah S/o Kondaiah Aged about 57 years R/o Annavaram Village
Jaladangi Mandal S P S R Nellore District
7. Kandanutala Fishermen Cooperative Society Regd No F 68 Rep by its
President Anchipakala Suryanarayana S/o Kotaiah Aged about 44 years Rio
Kandanuthala Village Bogavolu Mandal SPSR Nellore District
8. Fishermen Cooperative Society Atmakuru Regd No K19 Rep by its President
Atmakuru Chenchaiah Aged about 58 years R/o East S C Colony Vasil Village
Atmakuru Mandal Nellore District
... Petitioners
AND
$ 1. The Government of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi, Guntur
District.
2. The Commissioner of Fisheries, Vijayawada, Krishna District.
3. The District Collector, SPSR Nellore District.
4. The Joint Director of Fisheries, Ex-officio Additional Registrar of Cooperative
Societies Nellore, SPSR Nellore District.
... Respondents
5 RRR,J
W.P.No.13865/ 2020 & batch
W.P.No.16818/2020
Between:
#1. Fishermen Cooperative Society Koduru Pathapalem (V) Rep By its President
Sri Kanji Sriramulu S/o Anjaiah Age 64 Koduru Patapalem Village TP Gudur
Mandal SPSR
2. Fishermen Cooperative Society Thummalapenta Rep by its President Sri
Vayala Saibabu S/o Shankariah Age 28 Resident of Thummalapenta
PeddapattapupalemV Kavali Mandal
... Petitioners
AND
$ 1. The Government of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi,
Guntur District.
2. The Commissioner of Fisheries, Poranki, Vijayawada, Krishna District.
3. The District Collector, SPSR Nellore District.
4. The Joint Director of Fisheries, Nellore, SPSR Nellore District.
5. The Assistant Director of Fisheries, Nellore SPSR Nellore District.
... Respondents
W.P.No.17808/2020
Between:
#1. Kaluvoy Fishermen Cooperative Society, rep. by its president Vajrala
Srinivasulu, S/o.V. Seshaiah, Kaluvoy Village Mandal, SPSR Nellore District.
2. Dachuru Fishermen Cooperative society Rep. by its president K. Chenchaiah
S/o. Chenchu Ramaih, having its office at Dachuru village, Kaluvoy Mandal,
SPSR Nellore District.
... Petitioners
AND
$ 1. The State of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi, Guntur
District.
2. The State of Andhra Pradesh rep. by its Special Chief Secretary to
Government (FAC) Animal Husbandry, Diary Development and Fisheries
Department, Velgapudi, Guntur District.
3. The Commissioner of Fisheries, Vijayawada, Krishna District.
4. The District Collector, Nellore, SPSR Nellore District.
5. The Joint Director of Fisheries, Nellore, SPSR Nellore District.
... Respondents
W.P.No.17382/2020
Between:
#1. Veerannakanupuru Fisherman Cooperative Society R No F 33 Represented
by its President Kanukuru Venkata Subbaiah S/o Narasaiah Age 65 years R/o
Kanupuru Village Venkatachalam Mandal SPSR Nellore District
2. N D Reservoir Fisherman Cooperative Society R No K 239 Represented by
ExPresident Molakala Dasaiah S/o Narasaiah Age 58 years R/o Gandhi Jana
Sangam Girijana Colony Padamatipalem Post Sangam Mandal SPSR Nellore
District
3. Varakavipudi Fisherman Cooperative Society R No F 1 Represented by its
ExPresident Amari Srinivasulu S/o Pedasubbaiah Age 65 years R/o
Harijanawada Varakavipudi Village T P Gudur Mandal SPSR Nellore District
4. Ananthasagaram Fisherman Cooperative Society R No F 26 Represented by
its President Shaik Mahaboob Basha S/o Sattar Sa Age 55 years R/o Guntha
Bazar Ananthasagaram Post and Mandal SPSR Nellore District
6 RRR,J
W.P.No.13865/ 2020 & batch
5. Pedaputhedu Fisherman Cooperative Society R No F 20 Represented by its
Ex President Bathala Ravindra S/o Venkata Subaiah Age 60 years R/o
Pedaputtedu Village and Post Dagadarthi Mandal SPSR Nellore District
6. New Alluru Fisherman Cooperative Society R No F 84 Represented by its
President Valimeti Veera Raghavul S/o Veeraswamy Age 45 years R/o
Allurpet Village Allur Mandal SPSR Nellore District
7. Thurimerla Girijana Fisherman Cooperative Society R No F 17 rep by President
Thiriveedhi Akkulaiah S/o Chenchuramaiah Age 60 years R/o Turimerla
Village and Post Dagadarthi Mandal SPSR Nellore District
... Petitioners
AND
$ 1. The Government of Andhra Pradesh rep. by its Principal Secretary to Animal
Husbandry, Diary Development and Fisheries Department, Velgapudi, Guntur
District.
2. The State of Andhra Pradesh rep. by its Special Chief Secretary to
Government (FAC) Animal Husbandry, Diary Development and Fisheries
Department, Velgapudi, Guntur District.
3. The Commissioner of Fisheries, Vijayawada, Krishna District.
4. The District Collector, Nellore, SPSR Nellore District.
5. The Joint Director of Fisheries, Nellore, SPSR Nellore District.
... Respondents
! Counsel for petitioners : Smt. M. Vidyavathi
Sri G. Vijaya Babu
Sri G. Siva Prasada Reddy
^Counsel for Respondents : Additional Advocate General
<GIST :
>HEAD NOTE:
? Cases referred:
1. (2012) 10 SCC 1
7 RRR,J
W.P.No.13865/ 2020 & batch
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Writ Petition Nos.13865, 14118, 14304, 14532, 16601,
16818, 17382 & 17808 of 2020
COMMON ORDER:
Heard Smt. M. Vidyavathi, Sri G. Vijaya Babu and Sri V.
Sivaprasada Reddy for the petitioners and learned Additional Advocate
General for the respondents.
2. As the issues raised in all the writ petitions are one and
the same, all the writ petitions are being disposed of by this common
order.
3. Prior to 1987, fishing rights in all tanks and water sources
were being disposed of in the following order of precedence:
1) Cooperative societies of fishermen or harijans engaged in fishing on
the basis of average five years rental or departmental development
proceeds as the case may be; 2) Panchayat boards or local bodies; and
3) Private individuals on the basis of bids at public auctions. The
Government after examining the existing policy of allotment of fishing
rights and after taking into account the views of the fishermen
organisations and associations as well as the representatives of the
public, had issued G.O.Ms.No.776 dated 31.12.1990, setting out the
procedure for allotment of fishing rights in various tanks and water
bodies. The water bodies, for the purposes of grant of fishing rights
were categorised as Water bodies vested with Gram Panchayats, Major
reservoirs, medium and minor reservoirs and lakes, river courses,
canals and swamps. The fishing rights in Major reservoirs, was to be by
8 RRR,J
W.P.No.13865/ 2020 & batch
way of leases granted under auction basis. In all other water bodies,
fishing rights were to be given to Fishermen societies on a preferential
basis. In the absence of such fishermen societies or refusal of such
societies, fishing rights were to be offered to the Gram
Panchayat/municipality failing which fishing rights were to be
auctioned. The Government stipulated that the lease period would be
for a period of three years with an option of extension of two more
years, if the lessee was a fishermen cooperative society.
4. It may also be noted that G.O.Ms.No.343, Panchayat Raj
Department, dated 10.04.1998 also provided for the method in which
the fishing rights in the tanks controlled by the Gram Panchayats, were
to be given out. The Government had also issued G.O.Rt.No.282, dated
26.11.2019 granting leasehold rights for the period 2019 to 2022 to
various fishermen societies.
5. While the matters stood thus, the Government issued
Memo No.1085942/FISH/A3/2020, dated 21.07.2020. In this Memo it
was stated that the Government had accorded permission to the
Commissioner of Fisheries Andhra Pradesh to take up a pilot project, in
SPSR Nellore District, by conducting public/open auction in selected
public water bodies instead of entrusting fishing rights to the fishermen
cooperative societies. This new system is said to have been initiated for
development of fishery wealth at optimum level and realisation of more
revenue to the Government in SPSR Nellore District. A list of 27 water
bodies where such auction is to take place was attached to the Memo.
The said Memo has been challenged in W.P.Nos.13865 of 2020,
9 RRR,J
W.P.No.13865/ 2020 & batch
14118 of 2020, 14304 of 2020 and 14532 of 2020. This Court by way
of interim orders had granted interim suspension of the said Memo.
6. At that stage, the Government again issued
G.O.Rt.No.144, dated 08.09.2020 according permission to the
Commissioner of Fisheries, Andhra Pradesh, Vijayawada to take up a
pilot project in selected public water bodies by conducting open auction
instead of entrustment to the fishermen cooperative societies for
development of fishery wealth at optimum level and realisation of more
revenue to the Government in SPSR Nellore District. This G.O., was
effectively a repetition of Memo dated 21.07.2020 and was to apply to
27 tanks in Nellore District.
7. Some of the fishermen societies, which are operating in
Nellore District, have approached this Court by way of the
W.P.Nos.16601 of 2020, 16818 of 2020, 17382 of 2020 and 17808 of
2020 challenging G.O.Rt.No.144, dated 08.09.2020.
8. Smt. M. Vidyavathi, learned counsel appearing for some of
the petitioners would submit that, as there is no legislation covering
the field, G.O.Ms.No.776, dated 31.12.1990 had been issued in
exercise of the executive powers of the State under Article 162 of the
Constitution of India. She would submit that both Memo
No.1085942/FISH/A3/2020, dated 21.07.2020 and G.O.Rt.No.144,
dated 08.09.2020 are violative of G.O.Ms.No.776 and as such would
have to be struck down. She would submit that G.O.Ms.No.776 has not
been repealed or superseded and as such Memo
No.1085942/FISH/A3/2020, dated 21.07.2020 and G.O.Rt.No.144
10 RRR,J
W.P.No.13865/ 2020 & batch
dated 08.09.2020 would have to be set aside as the proposed public
auction is at variance with the system of awarding fishing rights to the
fishermen cooperative societies by way of nomination and without
public auction.
9. She would submit that the purpose of issuing
G.O.Ms.No.776 dated 31.12.1990 was to ensure that the fishermen in
the state, who belong to weaker sections of the society, are protected
from the vagaries of public auction and to ensure that the fishermen
who are members of these societies, are assured of a livelihood. In
such circumstances, the Government cannot evolve a new policy of
public auction which would effectively destroy the livelihood of the
members of these societies.
10. Sri G. Vijaya Babu, learned counsel appearing for some of
the petitioners would submit that Section 56(1) (b) of the Panchayat
Raj Act empowers the Gram Panchayats to grant fishing rights and
such right cannot be taken over by the Government under the guise of
a policy initiated under Memo No.1085942/FISH/A3/2020, dated
21.07.2020 and G.O.Rt.No.144 dated 08.09.2020.
11. The learned Additional Advocate General appearing for
the respondents would place reliance on the audited statements of
account of various fishermen cooperative societies filed along with the
Counter affidavit. These audited statements show that the fishemen
societies are all running in losses though fishing rights were being
given on highly concessional basis to these societies. He submits that
these accounts would go to show that none of the benefits were
11 RRR,J
W.P.No.13865/ 2020 & batch
reaching the members of the society. He would submit that under the
guise of representing the fishermen of the area, some members were
cornering all the benefits and showing losses in these societies because
of which no benefit reached any of the members of the fishermen
cooperative society. He would submit that the claim of the petitioners
that taking away fishing rights from these societies would cause losses
to the members of the society is incorrect.
12. The learned Additional Advocate General brought the
attention of this Court to the judgment of the Hon'ble Supreme Court
in, Natural Resources Allocation, In Re, Special Reference No.1
of 20121, to contend that Marine Wealth in the irrigation tanks and
other tanks belong to the state and the distribution of such wealth or
exploitation of such wealth has to be done in a transparent manner
and the optimal method of such exploitation would be to conduct
auctions for such fishing rights. He would submit that keeping these
two issues in mind the Government by way of a pilot project is seeking
to undertake public auction for 27 selected tanks in Nellore District
alone. He submits that none of these tanks are vested with the Gram
Panchayats and as such auction of fishing rights in these tanks would
not be contrary to Section 56 (1) (b) of the Panchayat Raj Act.
13. The learned Additional Advocate General would also
submit that G.O.Ms.No.776 only provides for first preference being
given to the fishermen cooperative societies while granting leases of
fishing rights. He would submit that the grant of lease under the
(2012) 10 SCC 1
12 RRR,J
W.P.No.13865/ 2020 & batch
provisions of the G.O., are on the basis of fixation of rent while the
new system proposed is to grant fishing rights by way of public auction
and as such there is no violation of G.O.Ms.No.776 dated 31.12.1990.
14. Sri V. Sivaprasad Reddy, learned counsel appearing for
some of the petitioners submits that the contention of the learned
Additional Advocate General on the question of auction is not correct
as G.O.Ms.No.776 provides for both nomination of fishing rights as well
as public auction of such fishing rights by prescribing procedure for
both systems and as such the insistence of grant of fishing rights only
by way of public auction is violative of the spirit and letter of
G.O.Ms.No.776.
CONSIDERATION OF THE COURT:
15. G.O.Ms.No.776 dated 31.12.1990 essentially provides for
grant of fishing rights to fishermen cooperative societies at highly
subsidised rates and without any public auction being conducted.
G.O.Ms.No.282 dated 26.11.2019 would further fortify the contention
of the petitioners that the system put in place under G.O.Ms.No.776
only permits grant of fishing rights to fishermen cooperative societies
and only in the absence of such societies, fishing rights can be given to
any other person. Memo No.1085942/FISH/A3/2020, dated 21.07.2020
and G.O.Rt.No.144 dated 08.09.2020 are a departure from the above
system and seek to grant fishing rights by way of a public auction to
any person who is the highest bidder, albeit, to a limited area, namely
SPSR Nellore District. It would have to be held that Memo
No.1085942/FISH/A3/2020, dated 21.07.2020 and G.O.Rt.No.144
13 RRR,J
W.P.No.13865/ 2020 & batch
dated 08.09.2020 are at variance with G.O.Ms.No.776 and effectively
modify the policy and procedure set out in G.O.Ms.No.776.
16. As it is the admitted case on both sides that there is no
legislation covering this issue, G.O.Ms.No.776 has to be deemed to
have been issued by the State, exercising its executive power under
Article 162 of the Constitution of India. The decision of the Government
is normally issued as G.O.Ms., (Government Order Manuscript) or
G.O.Rt., (Government Order Routine). These G.Os., are issued in the
name of the Governor as all executive action of the Government, under
Article 266 of the Constitution, has to be done in the name of the
Governor. A memo is a communication of the Government either
calling for information or conveying information but would not amount
to a decision of the Government and is signed by the communicating
authority. In the hierarchy of such executive legislation, a Memo of the
Government cannot supersede or depart from the provisions of any
earlier Government Order. In these circumstances, Memo
No.1085942/FISH/A3/2020, dated 21.07.2020 will have to give way
and has to be set aside.
17. G.O.Rt.No.144 would also have to be treated as issued
under Article 162 of the Constitution of India. While issuing this G.O.,
the Government has not superseded G.O.Ms. No.776. G.O.Rt.No.144
operates only in the District of Nellore while the operation of
G.O.Ms.No.776 is over the entire state, as such, G.O.Rt.No.144 would
have to be treated as a modification of G.O.Ms.No.776. It is always
open to the Government to modify or replace an existing Government
order. It could be by way of specific explicit modification or
14 RRR,J
W.P.No.13865/ 2020 & batch
supersession or by way of an implied modification or supersession. In
the present case G.O.Rt.No.144 makes a deliberate departure from the
earlier policy set out in G.O.Ms.No.776 and would have to be treated as
an implicit modification of G.O.Ms.No.776 as far as SPSR Nellore
District is concerned. It would be within the power of the Government
to modify G.O.Ms.No.776 by issue of G.O.Rt.No.144.
18. As far as change of policy is concerned, G.O.Rt.No.144 is
said to have been issued as the Government was unhappy with the
result of the earlier system of grant of fishing rights and wanted to try
out a new system as a pilot project. The justification being given for
attempting a new experiment is the stand of the Government that the
earlier system was not benefitting the target group of fishermen and
the natural resources of the State were being exploited in a non
transparent manner and to the detriment of the State. Though this
contention has been vehemently denied by the learned Counsel for the
Petitioners, it cannot be said that the Government cannot evolve new
policy. It would be trite to say that in such matters the Government
has to be given a play in the joints and the courts cannot impose a
strait jacket on the policy making power of the Government. No
violation of any provision of law has been shown to justify any
interference from this court.
19. In the circumstances, W.P.Nos.13865 of 2020, 14118 of
2020, 14304 of 2020 and 14532 of 2020 are allowed setting aside
Memo No.1085942/FISH/A3/2020, dated 21.07.2020. However,
W.P.Nos.16601 of 2020, 16818 of 2020, 17382 of 2020 and 17808 of
15 RRR,J
W.P.No.13865/ 2020 & batch
2020 challenging G.O.Rt.No.144, dated 08.09.2020 are dismissed.
There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
_________________________
R. RAGHUNANDAN RAO, J.
23rd February, 2021
LR copy to be marked
Js.
16 RRR,J
W.P.No.13865/ 2020 & batch
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
Writ Petition Nos.13865, 14118, 14304, 14532, 16601,
16818 & 17382,17808 of 2020
23rd February, 2021
Js.
