Jay Tulja Bhawani Magasvargiya ... vs The State Of Maharashtra And ...
2022 Latest Caselaw 9227 Bom

                                    1                     WP / 6403 / 2021 +


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                         WRIT PETITION NO. 6403 OF 2021

1] Jay Tulja Bhawani Magasvargiya Matsya
   Vyavsay Sahkari Sanstha Maryadit, Gaurgaon,
   Taluka - Kallamb, Dist. : Osmanabad,
   Through its Chairman,
   Balaji S/o Sanjay Shinde,
   Age: 47 years, Occu : Fishermen,
   R/o Gaurgaon, Taluka : Kallamb,
   District : Osmanabad - 413 501

2] Annabhau Sathe Magasvargiya Matsya
   Vyavsay Sahkari Sanstha Maryadit, Govardhanwadi,
   Ta. and Dist. Osmanabad,
   Through its Chairman,
   Sanjay S/o Satawa Shinde,
   Age : 45 years, Occu : Fishermen,
   R/o Govardhanwadi, Taluka : Osmanabad,
   District : Osmanabad - 413 501                               .. Petitioners

         Versus

1] The State of Maharashtra,
   Through its Secretary,
   Department of Agricultural Dairy Development,
   Animal Husbandry and Fisheries,
   Mantralaya, Mumbai - 32.

2] The Regional Deputy Commissioner of Fisheries,
   Latur, Tq. and District : Latur

3] The Assistant Commissioner of Fisheries,
   Osmanabad, Central Administrative Building,
   1st Floor, Osmanabad, Tq. And Dist. Osmanabad - 413 501

4] The Chief Officer,
   Zilla Parishad Building, Osmanabad,
   Tq. and District Osmanabad - 413 501

5] The District Water Conservation Officer,
   Zilla Parishad (Minor Irrigation), Osmanabad
   Zilla Parishad Building, Osmanabad
   Tq. and District Osmanabad - 413 501




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6] The Sub-Divisional Water Conservation Officer,
   Zilla Parishad, Sub-Division (Minor Irrigation),
   Kallamb, Tq. Kallamb,
   District : Osmanabad - 413 501                             .. Respondents

                                      WITH
                           WRIT PETITION NO. 6426 OF 2021

Vishal Fishery Business Co-operative Society,
Ltd., Chinchapur, Tal. Bhoom,
Dist. Osmanabad,
Through its Chairman,
Bapu S/o. Chandrakant Kasbe,
Age : 40 years, Occu. Agril & Fishing,
R/o. Chinchpur, Tal. Bhoom,
Dist. Osmanabad                                            .. Petitioner

      Versus

1] The State of Maharashtra,
   Through its Secretary Rural Development &
   Irrigation Department Mantralaya Mumbai

2] Zilla Parishad, Osmanabad,
   Through its Chief Executive Officer,
   Zilla Parishad Osmanabad,
   Dist. Osmanabad

3] Sub-Divisional Irrigation Officer,
   Zilla Parishad Minor Irrigation,
   Sub-Division Paranda,
   Tal. Paranda, Dist. Osmanabad                           .. Respondents

                                       ...
     Advocate for the petitioners : Mr. Manoj U. Shelke (WP/6403/2021)
  Advocate for the petitioner : Mr. Sushant B. Choudhari (WP/6426/2021)
      AGP for the respondent - State : Mrs. Vaishali N. Patil - Jadhav
 Mr. Rajdeep Raut, Advocate for the respondents no. 4 to 6 (WP/6403/2021)
            and for respondents nos. 2 and 3 (WP/6426/2021)
                                       ...

                                CORAM         : MANGESH S. PATIL &
                                                SANDEEP V. MARNE, JJ.

                                RESERVED ON   : 8 SEPTEMBER 2022
                                PRONOUNCED ON : 14 SEPTEMBER 2022




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JUDGMENT (MANGESH S. PATIL, J.) :

Since common questions arise on the basis of similar

facts, though the petitions have been instituted by different fisheries

societies registered under the Maharashtra Co-operative Societies Act,

1960 (Co-operative Societies Act), those are being disposed of by this

common judgment.

2. Heard.

3. Rule. Rule is made returnable forthwith in both the

petitions. Learned AGP waives service for the respondents no. 1 to 3

in writ petition no. 6403 of 2021 and for respondent no. 1 in writ petition

no. 6426 of 2021. Mr. A.D. Raut waives service for the respondents

nos. 4 to 6 in writ petition no. 6403 of 2021 and for respondents nos. 2

and 3 in writ petition no. 6426 of 2021. At the joint request of the

parties, the matters are being disposed of finally at the stage of

admission.

4. The petitioners are the societies registered under the Co-

operative Societies Act as fishing societies for specified locations.

According to them, they were allotted the fishing rights by virtue of a

contract for a period of 5 years from 2020 to 2025 by following due

process. However, the respondent - Zilla Parishad prematurely put an

end to the contracts and has even resolved to allot tanks to the

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societies through auction which is inconsistent with the directions of the

State Government. They have, therefore, put up a challenge to the

resolution of the Zilla Parishad dated 11-09-2020 and even sought

quashment of the communication whereby their contracts were brought

to an end.

5. Learned advocate for the petitioners would submit that the

respondents are bound by the long standing policy by virtue of the

Government resolutions issued from time to time since the year 1987.

No public auctions for allotment of fishing rights can be undertaken.

It can happen only through negotiations. It was a contractual obligation

of the respondents whereunder they should have allowed the

petitioners to undertake the fishing activity in accordance with the

contracts for a period of 5 years. The resolution passed is completely

in derogation to the Government directives apart from being in breach

of the contracts. The decisions are arbitrary and capricious. The

resolutions as well as the communications cancelling the contracts be

quashed and set aside.

6. The learned AGP would submit that the percolation tanks

in respect of which the fishing rights have been allotted to the

petitioners are exclusively falling under the domain of the respondent -

Zilla Parishad and the Fisheries Department of the State has nothing to

do with it.

5 WP / 6403 / 2021 +

7. The learned advocate for the Zilla Parishad would submit

that as far as the petitioner in writ petition no. 6426 of 2021 is

concerned, it is the only registered fishing society operating within the

jurisdiction of the irrigation tank mentioned therein and even if a fresh

auction is held, being the sole fishing society entitled to apply for, it is

bound to get the contract depending upon the terms and conditions

agreed upon.

8. The learned advocate would further submit that the

petitioner in writ petition no. 6426 of 2021 and the petitioner no. 1 in

writ petition no. 6403 of 2021 have taken part in the new auction

process, albeit, with the directions of this Court in the order dated

13-12-2021. The auction processes have been undertaken and though

those have not been finalized, they have participated in the auction

process and even the petitioner no. 1 in writ petition no. 6403 of 2021

and petitioner in writ petition no. 6426 of 2021 are getting the allotment

of fishing rights.

9. The learned advocate for the respondent no.1 - Zilla

Parishad would further submit that superseding all the earlier directions

and Government resolutions issued from time to time, by virtue of the

resolution dated 03-07-2019, a new guideline has been issued by the

Government settling the modalities to be followed while allotting fishing

6 WP / 6403 / 2021 +

rights but that circular does not apply to the tanks falling under the

jurisdiction of the Zilla Parishads which fact has been made clear by

the affidavit in reply filed on behalf of the Fisheries Department of the

State. He would submit that in view of the rights vested in the Zilla

Parishad, as also decision, the modalities have been worked out and it

has been resolved to allot the fishing rights by resorting to auction with

the sole object of increasing its revenue sufficient enough to enable it

to maintain the tanks. The decision has not been taken with any mala

fide intention or oblique motive.

10. We have carefully considered the rival submissions and

perused the papers.

11. There is no dispute about the fact that the State

Government has issued various guidelines from time to time to be

followed while allotting fishing rights to the fishing co-operative

societies throughout the State. It is not expected that such allotment

should take place by way of a public auction but is expected to be

undertaken by way of private negotiations. Admittedly, the petitioners

were allotted the fishing rights on a contractual basis after such

negotiations for a period of 5 years from 2020 to 2025 but by the

impugned communication, those have been abruptly and prematurely

terminated.

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12. As far as the grievance of the petitioners regarding the

breach of the contract is concerned, it is not their allegation that the

decision of the Zilla Parishad to undertake a public auction by taking

into consideration taluka as a unit and the communication whereby the

contracts with the petitioners have been terminated are prompted by

any mala fides or were taken with some ulterior motive.

13. So far as the rights under the contracts are concerned,

needless to state that the petitioners may have to resort to appropriate

legal remedy for claiming the damages which would depend upon

number of variables and disputed questions of facts which exercise we

may not be able to undertake in the present enquiry.

14. As far as legality of the impugned resolution is concerned,

the Zilla Parishad has the dominion over the reservoirs within its

jurisdiction, the responsibility of whose up-keepment rests on it. If it

has decided for the reasons mentioned while passing the resolution, to

allot fishing rights to various societies on taluka level basis by resorting

to public auction with the object of increasing its revenue since it is

supposed to maintain the reservoirs and tanks, in our considered view,

we cannot question it. In our considered view, we cannot term the

decision as illegal merely by referring to the Government resolutions

issued from time to time, particularly when the State Government has

not raised any objection as to the procedure being followed by the

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respondent - Zilla Parished in undertaking allotment by resorting to

public auction.

15. The writ petitions are dismissed.

16. Rule is discharged.

      [ SANDEEP V. MARNE ]                         [ MANGESH S. PATIL ]
            JUDGE                                       JUDGE

arp/