Ekatmic Matsyopadan Vikas ... vs The State Of Maharashtra, Through ...
2021 Latest Caselaw 7840 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY


                                NAGPUR BENCH, NAGPUR


                          WRIT PETITION NO. 1882 OF 2020


        Ekatmic Matsyopadan Vikas Sahakari Sanstha
        Maryadit, Kanhalgaon-Ridhora, Tahsil Hingna,
        District Nagpur bearing registration No. 323,
        through its President.                        :          PETITIONER

                 ...VERSUS...

        1. The State of Maharashtra,
           through its Secretary of Fisheries
           Department, Mantralaya, Mumbai-32

        2. The Commissioner of Fisheries,
           State of Maharashtra, Taraporewala
           acquarium, Netaji Subhash Road,
           Charni Road, Mumbai - 440 002

        3. Assistant Commissioner of Fisheries,
           5th Floor, Administrative Building No.2,
           Civil Line, Nagpur                       :           RESPONDENTS

        =-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Mr. A.M.Ghare, Advocate for the petitioner.
        Mr. A.S. Fulzele, AGP for the respondent nos. 1 to 3.
        =-=-=-=-=--=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                                      CORAM : SUNIL B. SHUKRE AND
                                                  ANIL S.KILOR, JJ.

DATED : 14th JUNE, 2021.

ORAL JUDGMENT : (Per : Sunil B. Shukre, J.)

Rule.

2. Rule is made returnable forthwith. Heard finally

by consent of the learned counsel for the parties.

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3. The petitioner-society, covered by the area of

Wadgaon Irrigation Project, was granted fishing lease on 6 th

September, 2019 for a period of five years and thereby the

petitioner was given right to exploit the yield of fish from

Wadgaon Irrigation Project. The petitioner-society was also

granted permission to engage outside fisherman by the

Commissioner level committee, in accordance with the

provisions made in clause 16.2 of Government Resolution

dated 3rd July, 2019. The permission, that was granted, was

for engaging 70 outsider fishermen. As per the other terms

and conditions, the Petitioner Society was also required to

permit local fishermen to catch the fish subject to the

condition that the whole catch of the fish shall be handed

over to the petitioner society, which is having exclusive right

of ownership in respect of catching of fish.

4. It appears that some complaint was received by

the respondent no.2 that the petitioner-society was not

permitting the local fishermen to catch the fish. A Show

Cause Notice was, therefore, issued to the petitioner-Society

which submitted its clarification in this matter. The

petitioner-society submitted its explanation vide its

communication dated 9th January, 2020. It was stated in the

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reply that the petitioner-society had already granted fishing

passes on nominal charge of Rs.30/- per month to 165 local

fishermen. It is also stated that these passes are being

misused by the local fishermen as the caught fishes are not

produced before the Petitioner-society for its weighment and

the same are straight way taken to the market and sold

without involvement of the petitioner-society. It was further

stated that since the petitioner society had not till then started

fishing in the tank, there was no question of the petitioner-

society committing breach of any terms and conditions of the

fishing lease.

5. Upon receipt of the reply from the petitioner-

society, the respondent no.2 took a decision to cancel the

lease granted to the petitioner-society and accordingly, by the

communication dated 15th February, 2020 the permission

dated 9th December, 2019 for engaging fishermen, who are

residing beyond the area of operation of the tank, was

cancelled. This communication dated 15 th February, 2020 is

challenged in this petition.

6. The learned counsel for the petitioner submits

that the respondent no.2 has no authority to cancel the

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permission granted to the petitioner-society, as the permission

was granted by the Commissioner level committee in

accordance with the Government Resolution dated 3rd July,

2019, and that as per clause 16.2 thereof, the authority to

cancel the permission to engage outsider fishermen lies with

the said committee. He also submits that while issuing the

impugned communication, respondent no.2 did not consider,

in any manner, the explanation given by the petitioner-society

and that no right of hearing was granted.

7. Shri Fulzele, learned Additional Government

Pleader submits that the respondent no.2 found substance in

the complaint received by him as he had verified the

truthfulness of the complaint through his officer. He further

submits that even though there may have been some technical

errors in issuing the impugned communication, ultimately, the

Commissioner level committee ratified the decision taken by

the respondent no. 2 and therefore, now the petitioner society

cannot raise any grievance before this Court. He further

submits that the action taken by the respondents is in

accordance with law and therefore, no interference with the

impugned communication is called for.

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8. On going through the impugned communication

and also the Minutes of the Meeting recorded by the

Commissioner level committee, which are filed along with the

reply on behalf of the respondent no.1, we find that there is

substance in the submissions made by the learned counsel for

the petitioner and no merits in the argument advanced by the

learned Additional Government Pleader.

9. The impugned communication, as rightly pointed

out by the learned counsel for the petitioner, does not make

any reference to the explanation given by the petitioner-

society in its reply to the show cause notice and it is indicative

of the fact that the impugned communication has been issued

without any application of mind to the stand taken by the

petitioner society and the factual position sought to be placed

before the respondent no.2. Such non application of mind, it

is further seen, has been continued even with the

Commissioner level committee. There is no consideration

whatsoever accorded by the Committee to the factual position

that was pointed out to these authorities by the petitioner-

society. All throughout, it has been the contention of the

petitioner society that it did not commit any breach of the

terms and conditions and on the contrary, it has complied

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with them. The petitioner-society has pointed out that on

charging a nominal monthly fee of Rs.30/-, it had already

issued fishing passes to 165 local fishermen. It appears that

no effort whatsoever has been made by any of the

respondents to verify this claim of the petitioner-society, the

decision to cancel the permission granted to engage outsider

fishermen was taken by the Commissioner level committee. It

was necessary for the Commissioner level committee to have

considered the complaint made in that behalf, decided the

same in accordance with the law and execute instructions

applicable to this subject matter of the case. But, the decision

has been taken in the present case by respondent no.2 and

then an attempt has been made to justify the impugned

decision through ratification of the same by the Commissioner

level committee. In fact, as per the Government Resolution

dated 3rd July, 2019, the power to grant permission to engage

outsider fishermen or to withdraw the permission so granted,

lies with the Commissioner level committee and not with the

respondent no.2, the Fishery Commissioner individually.

Therefore, the power to cancel the permission ought to have

been exercised by the Commissioner level committee after

giving proper opportunity of hearing to the petitioner-society,

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whose permission is sought to be cancelled or withdrawn.

That has not happened in this case and therefore, the

procedure adopted for withdrawing the permission has to be

termed as arbitrary and violative of whole instructions of the

respondents, which are binding upon them.

10. In the circumstances, we are inclined to allow

this petition.

11. The writ petition is allowed. The impugned

communication dated 15th February, 2020 is hereby quashed

and set aside.

        12.              The     matter    is   remanded       back       to     the

        Commissioner           level   committee   for   decision      afresh      in

        accordance with law.           The Commissioner Level Committee

shall take an appropriate decision within a period of two

weeks from the date of appearance of the petitioner-society

through its duly authorised representatives. The petitioner-

society may appear before the Commissioner level committee

on 28th June 2021. The petitioner shall have liberty to file

relevant documents before the Committee, if it desires to do

so.

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13. Rule accordingly. No order as to costs.

                      JUDGE                                             JUDGE
  sknair