Madras High Court
R.Karuppaswamy vs The District Collector on 18 February, 2021
W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.02.2021
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MRS.JUSTICE S.ANANTHI
W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
&
W.M.P.(MD)No.21536 of 2018 in W.P.(MD)No.23786 of 2018
&
W.M.P.(MD)Nos.1124 & 1125 of 2019 in W.P.(MD)No.1317 of 2019
&
W.M.P.(MD)Nos.16197 & 16198 of 2020 & 741 of 2021
W.P.(MD)No.23786 of 2018:-
R.Karuppaswamy ... Petitioner
Vs.
1.The District Collector,
Madurai District.
2.The Commissioner,
Madurai Corporation,
Madurai.
3.The Chief Engineer (WRO),
Public Works Department,
Madurai Division, Madurai.
4.The Superintending Engineer (WRO),
Public Works Department,
Madurai Division, Madurai.
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
5.The Executive Engineer (WRO),
Public Works Department,
Madurai Division, Madurai.
6.The Assistant Director,
Fisheries Department,
Madurai. ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
seeking for issuance of a Writ of Mandamus, directing the respondents to
prohibit commercial fish farming in all the tanks situated within Madurai
Corporation limit and further to direct the respondents to do all acts to preserve
the water level of the tanks within Madurai City Municipal Corporation at
optimum level by keeping the sluices/shutters in good conditions and also by
restoring all the branch channels bringing in and taking out the water from tanks
on removing encroachments and repairing branch channels by considering the
representation dated 20.11.2018.
For Petitioner : Mr.G.Prabhu Rajadurai
For R1 & R3 to R6 : Mrs.J.Padmavathi Devi
Special Government Pleader
For R2 : Mr.T.S.Mohamed Mohideen
Standing Counsel
W.P.(MD)No.1317 of 2019:-
A.Ramaraj ... Petitioner
Vs.
1.The District Collector,
Madurai District.
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
2.The Assistant Director of Fisheries,
Fisheries Department,
Madurai.
3.A-2407 Madurai South Taluk Inland Fishermen
Co-operative Society,
Rep. by its President P.Jeyaraman,
Avaniyapuram,
Maudrai. ... Respondents
[R3 is impleaded vide order dated 07.01.2020, made
in W.M.P.(MD)No.23482/2019 in W.P.(MD)No.1317/2019]
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
seeking for issuance of a Writ of Certiorari, calling for the records relating to
the proceedings of the impugned order in Na.Ka.No.1604/E/18-1, dated 01.19,
on the file of the first respondent and quash the same.
For Petitioner : Mr.G.Prabhu Rajadurai
For R1 & R2 : Mrs.J.Padmavathi Devi
Special Government Pleader
For R3 : Mr.T.Lajapathi Roy
W.P.(MD)No.19415 of 2020:-
Aiveththanenthal Grama Vivasaya Kudimakkal Sangam,
Reg. No.171/2017,
Rep. by its President,
Sivanandi,
S/o.Sivaramanathan,
No.30, Karuthan Servai Street,
Avaniyapuram Madurai South,
Madurai – 625 012. ... Petitioner
Vs.
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
1.The Director of Fisheries,
Chennai.
2.The Deputy Director of Fisheries,
Office of the Deputy Director of Fisheries,
Madurai,
Madurai District.
3.The Assistant Director of Fisheries,
Fisheries Department,
Madurai
4.The District Collector,
Madurai District,
Madurai.
5.The Commissioner,
Madurai Corporation,
Madurai.
6.A-2407, Madurai South Taluk Inland Fishermen
Co-operative Society,
Rep. by its President,
P.Jayaraman,
S/o.Perumal,
Avaniyapuram, Madurai.
7.Ramesh Ramalingam, S/o.Akkini Servai
8.Ramakrishnan, S/o.Muthukaruppan
9.S.Balu, S/o.Shanmugavel
10.Sethuraman, S/o.Muthaiah
11.M.Palanichamy, S/o.Muthuvel ... Respondents
[R7 to R11 are impleaded vide order dated 09.02.2021, made
in W.M.P.(MD)No.2032/2021 in W.P.(MD)No.19415/2020]
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
Prayer : Writ Petition filed under Article 226 of the Constitution of India,
seeking for issuance of a Writ of Certiorari, calling for the records pertaining to
the impugned order passed by the third respondent, vide his proceeding in
Na.Ka.No.857/E/2020, dated 05.11.2020 and quash the same as illegal.
For Petitioner : Mr.C.Mayilvahana Rajendran
For R1 to R4 : Mrs.J.Padmavathi Devi
Special Government Pleader
For R5 : Mr.T.S.Mohamed Mohideen
Standing Counsel
For R6 : Mr.T.Lajapathi Roy
For R7 to R11 : Mr.D.Saravanan
*****
COMMON ORDER
(Order of the Court was made by M.M.SUNDRESH, J.)
W.P.(MD)No.23786 of 2018 has been filed seeking for issuance of a
Writ of Mandamus, directing the respondents to prohibit commercial fishing
within the Madurai Corporation limit and preserve the water level of the tanks
at optimum level, by keeping the sluices / shutters in a good condition.
2.W.P.(MD)No.1317 of 2019 has been filed challenging the impugned
order passed in the month of January, 2019, by which, tanks are sought to be
auctioned.
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
3.W.P.(MD)No.19415 of 2020 has been filed challenging the order
dated 05.11.2020, by which, respondent No.6 was declared as successful bidder.
4.As the issues involved are interlinked and common, these writ
petitions are disposed of by this common order.
5.The grievance, which is sought to be exposed by the petitioners, is
that due to the decision made to permit the third parties to indulge in fishing
over the water-bodies coming within the control of the Public Works
Department, situated either within the Madurai Corporation or on its periphery,
water depletion, water contamination and pollution take place. The check dam
serves many purposes, including increasing the occupier of the locality acting as
percolation tanks. Therefore, such activities, which invariably involved rearing
of fishing by usage of chemical and other materials and letting the water to
augment fishing are required to be prevented, as there is scarcity of water both
for drinking and agricultural purposes.
6.The learned counsels made reliance upon the scientific materials in
support of their contentions. Incidentally, it is submitted that respondent No.6
is acting only on paper having been the tenderer in view of the policy decision
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
of the Government without even fixing the upset price. The members are not the
beneficiaries and there is not even an account for the accounts. It also involves
sub-letting. Income does not get into the account of the Society, but only to the
few named individuals. The upset price fixed is also very low.
7.The learned counsel for respondent No.6 submitted that inasmuch
as fingerlings are already let out and the licence is in currency. The interest of
respondent No.6 requires to be protected. Even in the agreement, it has been
clearly specified about the action that could be taken in the case of any
violation. Therefore, there is sufficient protection, which is available and thus,
no orders are required.
8.The issues sought to be raised are certainly involving public
interest. Water is always on scarcity. All that we can do is to distribute water in
a fair manner, so as to facilitate the usage by one and all. It should be used for
both drinking and agricultural purposes. In fact, all the living beings rely upon
water being the life source. A commercial venture would certainly take a back
seat, when it needs to share the water. Though there are conditions attached to
the agreement entered into between the officials of the Fisheries Department
and respondent No.6, the property will have to be given for using the water for
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
drinking purpose and agricultural purpose. Usage of water does not merely
involve the manner in which it is used. Speculation is a very important factor
for preservation of water. In fact, this is one area, this Country is grossly found
lacking. There is neither a scientific study done nor knowledge about
preservation of water by taking adequate measures including harvesting of rain
water.
9.In such view of the matter, while not disturbing the right of
respondent No.6 to undertake the fishing for this year and there has to be a
review afresh by the Fisheries Department for the next year, we are of the view
that the very action of the Fisheries Department itself is required to be
questioned, as it has not considered the other aspects involved. We may add
that even the Public Works Department has become a mute spectator. It is the
primary duty to see to it that the water is shared for both the drinking purpose
and the agricultural purpose. Nobody shares the deficiencies of available water,
as it depends on the monsoon and the rainfall.
10.Accordingly, for ensuing year, before undertaking the process of
giving licence, the Fisheries Department will have a detailed consultation with
the Public Works Department. The observation made by us would apply with
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
much more rigour to the tanks situated at Madurai Corporation, as the need is
obviously higher.
11.In such view of the matter, the consultation as indicated will have
to be extended to the officials of the Corporation of Madurai also. With respect
to fixation of upset price, we have already held in W.A.(MD)Nos.1251 and 923
of 2020, dated 03.02.2021, which is extracted hereunder:-
''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 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.
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
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 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.''
12.The aforesaid direction will have to be complied with strictly by
the Fisheries Department, provided the decision has been taken in consultation
with the Public Works Department and the Corporation of Madurai, as the case
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
may be. We make it clear that insofar as the tanks situated in Madurai
Corporation is concerned, the respondents viz., the Fisheries Department and
the Public Works Department and the Madurai Corporation are expected to take
a conscious decision before agreeing upon to give rights of fishing to any third
parties.
13.All the Writ Petitions are disposed of accordingly. We make it
clear that this year, respondent No.6 is permitted to undertake the exercise of
doing fishing. However, considering the seriousness of the allegations made,
we direct the Registrar of Co-operative Societies concerned to conduct an
enquiry through his officials with respect to functioning of respondent No.6
with specific reference to the management of funds. Respondent Nos.7 to 11 in
W.P.(MD)No.19415 of 2020 is also at liberty to give their compliant in this
regard. Appropriate action will be taken within a period of three months from
the date of receipt of a copy of this order. No costs. Consequently, connected
Miscellaneous Petitions are closed.
Index :Yes/No [M.M.S.J.,] [S.A.I.J.,]
Internet :Yes 18.02.2021
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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
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
of the order that is presented is the correct copy, shall
be the responsibility of the advocate/litigant concerned.
To
1.The Director of Fisheries,
Chennai.
2.The District Collector,
Madurai District.
3.The Deputy Director of Fisheries,
Office of the Deputy Director of Fisheries,
Madurai,
Madurai District.
4.The Assistant Director of Fisheries,
Fisheries Department,
Madurai.
5.The Commissioner,
Madurai Corporation,
Madurai.
6.The Chief Engineer (WRO),
Public Works Department,
Madurai Division, Madurai.
7.The Superintending Engineer (WRO),
Public Works Department,
Madurai Division, Madurai.
8.The Executive Engineer (WRO),
Public Works Department,
Madurai Division, Madurai.
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W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
M.M.SUNDRESH, J.
AND
S.ANANTHI, J.
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Common order made in
W.P.(MD)Nos.23786 of 2018, 1317 of 2019 and 19415 of 2020
18.02.2021
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