Madras High Court
The Director Of Fisheries vs S.T.Mani on 3 February, 2021
W.A.(MD)Nos.1251 and 923 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.02.2021
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.A.(MD)Nos.1251 of 2020
&
C.M.P.(MD)No.7124 of 2020
and
W.A.(MD)No.923 of 2020
&
C.M.P.(MD)No.5050 of 2020
W.A.(MD)No.1251 of 2020:-
1.The Director of Fisheries,
Fisheries Department,
Chennai.
2.The Deputy Director of Fisheries (Zonal),
Office of the Deputy Director of Fisheries,
Madurai,
Madurai District.
3.The Assistant Director of Fisheries,
Theni Vaigai Dam,
Theni District. ... Appellants
Vs.
1.S.T.Mani
2.FMD-10-Bodi Fisherman Co-operative Society,
Rep. by its President A.Sankar,
No.71-C, Solai Chokkalingam Nagar,
Kaupasamy Kovil Street, Bodinayakanur – 625 513.
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W.A.(MD)Nos.1251 and 923 of 2020
3.The Divisional Engineer,
Public Works Department,
Vaigai Dam,
Theni District. ... Respondents
[3rd respondent is suo motu impleaded vide order
dated 20.01.2021, made in W.A.(MD)Nos.1251 &
923 of 2020]
Prayer : Appeal filed under Clause 15 of the Letters Patent against the order
passed by this Court in W.P.(MD)No.5485 of 2020, dated 31.08.2020.
For Appellants and for R3 : Mrs.J.Padmavathi Devi
Special Government Pleader
For R1 : Mr.T.Lajapathi Roy
for Mr.P.Athimoolapandian
For R2 : Mr.M.Ajmalkhan
Senior Counsel
for Mr.V.Malaiyendran
W.A.(MD)No.923 of 2020:-
FMD-10, Bodi Fisherman Co-operative Society,
Rep. by its President (In-charge),
M.Thamilarasan,
Thiruchendur, Kodangipatti,
Bodinayakkanur,
Theni District. ... Appellant
Vs.
1.S.T.Mani
2.The Director of Fisheries,
Fisheries Department,
Saidapet, Chennai.
3.The Deputy Director of Fisheries,
O/o. The Deputy Director of Fisheries (Zonal),
Madurai, Madurai District.
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W.A.(MD)Nos.1251 and 923 of 2020
4.The Assistant Director of Fisheries,
Theni, Vaigai Dam,
Theni District.
5.The Secretary,
Public Works Department,
Government of Tamil Nadu,
Nammakkal Kavingar Maaligai,
Secretariat, Chennai – 600 009.
6.The Secretary,
Municipal Administration and Water Supply Department,
Government of Tamil Nadu,
Secretariat, Chennai – 600 009.
7.The District Collector,
Theni District.
8.The Revenue Divisional Officer,
Uthamapalayam, Theni District.
9.The Ayakkattudars Association of Bodi Meenakshiamman
Kanmoi,
Rep. by its President,
Ammapatti Village, Bodi Taluk,
Theni District.
10.The Divisional Engineer,
Public Works Department,
Vaigai Dam,
Theni District.
[10th respondent is suo motu impleaded vide order
dated 20.01.2021, made in W.A.(MD)Nos.1251 &
923 of 2020]
11.Bodi Meenakshiamman Kanmoi Neerinai
Payanpaduthuvor Sangam,
B.Ammapatti,
Rep. by its President,
G.Jeyaram,
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W.A.(MD)Nos.1251 and 923 of 2020
S/o.Govindarajan,
12-2-23, Therku Asariyar Street,
B.Meenakshipuram,
Bodi Taluk,
Theni District. ... Respondents
[11th respondent is impleaded vide order dated
03.02.2021, made in C.M.P.(MD)No.261 of 2021
in W.A.(MD)No.923 of 2020]
Prayer : Appeal filed under Clause 15 of the Letters Patent Act, against the order
passed by this Court in W.P.(MD)No.5485 of 2020, dated 31.08.2020.
For Appellant : Mr.M.Ajmalkhan
Senior Counsel
for Mr.V.Malaiyendran
For R1 : Mr.T.Lajapathi Roy
for Mr.P.Athimoolapandian
For R2 to R8 & R10 : Mrs.J.Padmavathi Devi
Special Government Pleader
For R11 : Mr.G.Prabhu Rajadurai
*****
COMMON JUDGMENT
(Judgment of the Court was delivered by M.M.SUNDRESH, J.)
W.A.(MD)No.1251 of 2020 has been filed by the official respondents
in W.P.(MD)No.5485 of 2020 and W.A.(MD)No.923 of 2020 has been filed by
the private respondent, viz., FMD-10, Bodi Fisherman Co-operative Society.
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W.A.(MD)Nos.1251 and 923 of 2020
2.The above said Writ Petition has been filed by respondent No.1
challenging the impugned order of the Deputy Director of Fisheries, Madurai,
dated 03.03.2020, with a consequential direction to conduct the tender afresh.
Respondent No.1/writ petitioner was admittedly a Member of the appellant
Society in W.A.(MD)No.923 of 2020.
3.The learned Single Judge disposed of the said Writ Petition by
directing the Secretary to Government, Fisheries Department, to issue a tender
notice in tune with the other directions issued. The directions were given to the
effect that after fixing the upset price, tender should be called for and the
highest bid amount will have to be offered to the Fisherman Society. Therefore,
the said exercise cannot be done before fixing the upset price. The learned
Single Judge further found that the fixation of upset price is grossly in adequate
and not in tune with the Government Order in G.O.(Ms)No.201, Animal
Husbandry, Dairying and Fisheries (FS-6) Department, dated 19.10.2017.
4.Challenging the aforesaid order passed, the official respondents
have filed W.A.(MD)No.1251 of 2020 and the private respondent has filed W.A.
(MD)No.923 of 2020.
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W.A.(MD)Nos.1251 and 923 of 2020
5.The learned Special Government Pleader appearing for the
appellants in W.A.(MD)No.1251 of 2020 and the learned Senior Counsel
appearing for the appellant in W.A.(MD)No.923 of 2020 submitted that the
upset price has been fixed in accordance with the Government Order passed by
the Government in G.O.(Ms)No.201, Animal Husbandry, Dairying and Fisheries
(FS-6) Department, dated 19.10.2017. The Writ Petition itself was not
maintainable, as it was filed by the Member of the Society. The learned Single
Judge has converted the Writ Petition into Public Interest Litigation and set
aside the Government Order passed by the Government in G.O.(Ms)No.201,
Animal Husbandry, Dairying and Fisheries (FS-6) Department, dated
19.10.2017, when there is no challenge to the same. Thus, the order requires
interference.
6.On the issue regarding the likelihood of Farmers Society being
affected, who are represented by the Counsel, the learned Special Government
Pleader submitted that the instructions from the Public Works Department
requires consideration and therefore, any right in favour of the appellant in W.A.
(MD)No.923 of 2020 is subject to the rights of the Bodi Meenakshiamman
Kanmoi Neerinai Payanpaduthuvor Sangam. The learned Special Government
Pleader also brought to the notice of this Court about the activities that is going
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W.A.(MD)Nos.1251 and 923 of 2020
on against the interest of the aforesaid Sangam. The same has been reiterated
by the learned counsel appearing for respondent No.11 in W.A.(MD)No.923 of
2020.
7.Before us, we have three competing interests. Apart from filing the
Writ Petition as Public Interest Litigation, the Writ Petitioner has challenged it
on various grounds including the upset price. The appellant in W.A.(MD)No.
923 of 2020 seeks to sustain the awarding of licence with the upset price. The
farmers want their interest to be protected. Even among the official
respondents, the Public Works Department feels that the auction of the licence
affects the farmers.
8.On the finding rendered by the learned Single Judge with respect to
the upset price fixed, we are in respectful agreement. The earlier fixation of
upset price through the intervention of this Court has not been taken into
consideration. We are dealing with the larger interest of the water body,
containing 81.43 Hectares. Now, water is sufficiently available. Unfortunately,
this aspect was not gone into at the time of granting licence. The order passed
by the Division Bench of this Court, dated 05.04.2019, has not been complied
with in letter and spirit. The relevant factors have not been spoken, as rightly
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W.A.(MD)Nos.1251 and 923 of 2020
pointed out by the learned counsel appearing for respondent No.1/writ
petitioner. Undervalued upset price has been fixed. Thus, to that extent, we are
in agreement with the reasoning given by the learned Single Judge. On the
methodology to be adopted also, the reasoning of the learned Single Judge is
correct, though no challenge has been made to the Government Order. The Writ
Petition was not on the public interest and there was no challenge to the
Government Order passed and hence, the same cannot be set aside indirectly
without even laying a challenge. The Court went on to say that the said
Government Order has not been considered properly and the other procedures
contemplated also have not been followed. Perhaps, the wisdom would prevail
on the official respondent to modify the above said order as reasoned by the
learned Single Judge. Suffice it to state that the present procedure does not
require interference, especially, when the same has been given effect to with
respect to the right conferred on the appellant in W.A.(MD)No.923 of 2020.
Any such auction will have the prospective effect and therefore, the same will
not take away the right accrued. Similarly, we uphold the objections of the
learned Senior Counsel appearing for the appellant in W.A.(MD)No.923 of
2020 that the learned Single Judge ought not to have entertained the Writ
Petition filed at the instance of the one of its Members, this being a fundamental
principle of law.
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W.A.(MD)Nos.1251 and 923 of 2020
9.However, in the case on hand, for the reasons best known, grossly
inadequate upset price has been fixed, excluding the fact that a larger amount
was fixed on the last occasion. The Government would be the looser and
therefore, it is in Public Interest. To that extent, we find the reasoning of the
learned Single Judge requires to be confirmed. Therefore, we call upon the
official respondent to re-do the exercise, by keeping in view of the price
augmented on the last occasion. The State largesse cannot be given to some one
on a flatter ignoring the financial implication. Accordingly, the official
respondents are hereby directed to re-do the exercise of the upset price and offer
the same to the appellant in W.A.(MD)No.923 of 2020, particularly, keeping in
mind the price that was fixed for the last year.
10.For the ensuing years, we call upon the official respondents,
including the Secretary to Government, Fisheries Department, to adopt a
different methodology as suggested by the learned Single Judge, by fixing the
upset price and thereafter, call for tender. The highest amount offered by the
successful bidder will have to be offered to the Bodi Fisherman Society. It is
better to follow this methodology in future in all cases, as the Government
would not loose the revenue and in any case, fixation of the upset price is a
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W.A.(MD)Nos.1251 and 923 of 2020
starting point and the same will not be the actual price that will fetch in an
auction. It is a price, which will facilitate somebody to take part in the auction,
being the minimum value of the subject matter of the licence.
11.The incidental issue is with respect to the impleaded respondents.
On a perusal of the status report filed by respondent No.4, it is clear that various
violations took place. These violations are with respect to contamination with
the water and reaction to facilitate the highest fishing. The rights of the
appellant in W.A.(MD)No.923 of 2020 is certainly subject to the rights of the
impleaded respondent. Therefore, the official respondents shall make sure that
their rights are not affected, which is inclusive of contaminating the water by
polluting it for facilitating the larger capture of fishing and letting the water out,
much to the suffering of the farmers. If such activities are carried on, the
respondents are expected to cancel the licence.
12.There is one another issue which we need to consider. This is with
respect to other living beings. The learned Special Government Pleader
appearing for the official respondents will have to instruct the officials to make
sure that the appellant in W.A.(MD)No.923 of 2020 shall not involve in any
illegalities, by using crackers to shy away the birds, which go there to catch
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W.A.(MD)Nos.1251 and 923 of 2020
fish.
13.We find considerable force in the said submissions made. The
official respondents will make sure that the birds are not made to go away by
the usage of crackers.
14.The official respondents shall undertake the exercise as aforesaid
within a period of four weeks from the date of receipt of a copy of this
judgment. If the appellant in W.A.(MD)No.923 of 2020 is not inclined to take
the fishing rights, it can be brought up for auction.
15.These Writ Appeals are disposed of accordingly. No costs.
Consequently, connected Miscellaneous Petitions are closed.
Index :Yes/No [M.M.S.J.,] [S.A.I.J.,]
Internet :Yes 03.02.2021
smn2
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall
be the responsibility of the advocate/litigant concerned.
To
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W.A.(MD)Nos.1251 and 923 of 2020
1.The Director of Fisheries,
Fisheries Department,
Saidapet, Chennai.
2.The Deputy Director of Fisheries,
O/o. The Deputy Director of Fisheries (Zonal),
Madurai, Madurai District.
3.The Assistant Director of Fisheries,
Theni, Vaigai Dam,
Theni District.
4.The Secretary,
Public Works Department,
Government of Tamil Nadu,
Nammakkal Kavingar Maaligai,
Secretariat, Chennai – 600 009.
5.The Secretary,
Municipal Administration and Water Supply Department,
Government of Tamil Nadu,
Secretariat, Chennai – 600 009.
6.The District Collector,
Theni District.
7.The Revenue Divisional Officer,
Uthamapalayam, Theni District.
8.The Divisional Engineer,
Public Works Department,
Vaigai Dam,
Theni District.
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W.A.(MD)Nos.1251 and 923 of 2020
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
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Common judgment in
W.A.(MD)Nos.1251 and 923 of 2020
03.02.2021
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