Padige Nageswara Rao And 11 Others vs The State Of Telangana And 8 Others
2022 Latest Caselaw 3546 Tel

             THE HON'BLE SRI JUSTICE T. VINOD KUMAR

                       WRIT PETITION No.28522 of 2022
ORDER:

This Writ Petition is filed to declare the policy laid down by the

Government in G.O.Ms.No17, Animal Husbandry, Dairy Development

and Fisheries (F) Department dt.07-09-2021 for granting fishing rights

in all water bodies below 100 acres over scheduled areas in favour of

Fishermen Cooperative Societies with non tribes particularly, Clause

(ix) in para-3 of the said G.O. and not granting fishing rights exclusively

to Fishermen Cooperative Society consisted with STs or groups of STs

in the scheduled areas, as illegal, arbitrary and contrary to the law laid

down by the Supreme Court in Samatha Vs. State of A.P. and others1

and to law laid down in Adarsha Advivasi Mahila Samithi and others

Vs. Agent to the Government, Khammam and others2.

2. Heard Sri P.V. Ramana, learned counsel for petitioners, learned

Government Pleader for Social Welfare appearing for respondent Nos.1,

3 and 6 and learned Government Pleader for Fisheries appearing for

respondent Nos.2, 4, 5 and 7. With their consent, this Writ Petition is

taken up for hearing and disposal at the admission stage.

(1997) 8 SCC 191

2003(5) ALT 287

3. The petitioners contend that they are Scheduled Tribes and

permanent residents of Guduru Mandal, Kothagudem Mandal,

Mahabubabad District and the said areas are notified as Scheduled

Areas; that petitioners 1 to 8 submitted an application on 30.09.2021 to

the 5th respondent to register them as Fishermen Cooperative Society

and petitioners 9 to 12 submitted an application on 26.04.2022 for

formation of Pogallapalli Fisheries Cooperative Society with local STs,

for the purpose of conferring fishing rights over the water bodies in the

Gram Panchayats of Vellubeli and Pogallaplli; and that the powers

governing the schedule areas were issued under the Andhra Pradesh

Scheduled Areas Land Transfer Regulation Act, 1959 (1 of 1959) as

amended by LTR 1/70 whereby settlement of non-tribes in scheduled

areas is prohibited. Petitioners further contend that in spite of special

enactment prohibiting settlement of non-tribes in schedule areas and

also undertaking any business activity in such area, the official-

respondents are taking steps granting fishing rights to Cooperative

Societies formed by non-tribes.

4. Petitioners further contends that under the guise of G.O.Ms.No.17

AH, DD, and F(F) Department, dt.07.09.2021 purported to contain

"Comprehensive guidelines for granting fishing rights", the respondents

are declining to grant fishing rights to the petitioners thereby causing

irreparable loss. Petitioners further contend that the fishing rights cannot

be granted to any non-tribal fishermen cooperative societies or person or

groups and it should be confined only to Tribal cooperative Fishermen

Societies or Groups of local tribes or persons in the villages.

5. Learned counsel for petitioners would vehemently contend that

the impugned Government Order is contrary to the law laid down by the

Hon'ble Supreme Court particularly in relation to the grant of lease

rights of fishing tanks in scheduled areas to Fishermen Cooperative

Societies consisting of non-tribes and the prescription in Clause 3 (ix) of

the Comprehensive guidelines that if there is no fishermen cooperative

society, then only such rights are to be granted to the local tribals

engaged in fishing activity, is illegal and contrary to the provisions of

Act 1 of 1959 and its amendment.

6. Learned counsel for petitioners would further contend that the

said prescription in the G.O. is an erroneous drafting inasmuch as 'no

fishermen cooperative society' should have been suffixed with "of

scheduled tribes" and in the absence of such prescription, the

Authorities are misinterpreting the said clause in a manner as only if no

fishermen cooperative societies exist in a scheduled area, then only

rights have to be given to local schedule tribes and not otherwise.

7. It is further contended that some of the non-tribal's Fishermen

Cooperative Society approached this Court, without impleading the

local tribes, questioning the inaction of the respondents in not

considering them for grant of fishing rights being a Cooperative Society

in W.P.No.5991 of 2022 and the same was disposed of by this Court

vide order dt.06-06-2022 holding :

"... The language used in the said Guideline No.3(ix) is clear and unambiguous that if there are no fishermen cooperative society in the scheduled areas, then only the fishing rights can be granted to the local tribals engaged in fishing activity. But, in no terms can it be construed that the Fishermen Cooperative Society should be operated only by the persons belonging to the Scheduled Tribe. Therefore, the contention of the learned Government Pleader for Fisheries that the Fisheries Department is not leasing out the tanks to the petitioner Society only on the ground that the petitioner Society consists of members, who are non-tribals, cannot be countenanced."

8. I have noted the respective contentions.

9. By virtue of the law laid by the Supreme Court in Samatha

(1 supra) and other subsequent judgments and also having regard to the

definition of the term "transfer" in Section 3 of the Act 1 of 1959, it is to

be noted that the grant of fishing rights termed as 'lease' in a schedule

area would be covered by the definition to term 'transfer', even though

it is for a period of one year.

10. However, a Coordinate Bench of this Court rendered judgment on

06-06-2022 in W.P.No.5991 of 2022 interpreting the said Guideline

No.3(ix) as not being an embargo for grant of fishing right to non-tribal

Cooperative Societies in respect of a scheduled area.

11. Further in the said judgment, while interpreting Guideline

No.3(ix), it was held that "in no terms it be construed that the Fishermen

Cooperative Society should be operated only by the persons belonging

to the Scheduled Tribes", and thus rejected the contentions of the

learned Government Pleader for Fisheries. The consequence of the said

finding recorded by a Coordinate Bench of this Court in the above Writ

Petition would imply that as per Guideline No.3(ix), fishing rights can

be granted in favour of any Fishermen Society even though it does not

consist members from the Scheduled Tribes. It is only if no Fishermen

Cooperative Society exists, such right is to be granted in favour of local

Scheduled Tribes in the schedule area who are engaged in the fishing

activity.

12. Since a Coordinate Bench of this Court had already expressed a

view and interpreted Guideline No.3(ix), this Court is of the view that it

would be judicial impropriety for another Coordinate Bench to consider

the same issue again merely because it is contended by the learned

counsel for petitioners that the rights of the petitioners who are tribals

from the scheduled area are being affected and the said order having

been obtained without making the petitioners or some Scheduled Tribes

a party to the said proceedings.

13. Be that as it may, since a Coordinate Bench of this Court had

already taken a view by interpreting Guideline No.3(ix) of

G.O.Ms.No.17, proper course for the petitioners would be to question

the said order, if aggrieved by the findings recorded therein, by filing a

Writ Appeal with the leave of the Court and not by invoking the

jurisdiction of this Court under Article 226 of the Constitution of India

by way of present Writ Petition.

14. In view of the same, the present Writ Petition is devoid of merit

and it is accordingly dismissed. No costs.

15. Miscellaneous petitions, if any, pending in this writ petition shall

stand closed.

____________________ T. VINOD KUMAR, J Date : 08-07-2022.

Note :- Issue C.C. by 15-07-2022.

B/o.

Vsv