Harijana Fishermen Mutually Aided Coop. Society Ltd. v. District Collector, Guntur District
2001-03-27
GODA RAGHURAM
body2001
DigiLaw.ai
GODA RAGHURAM, J. ( 1 ) THE Harijana Fishermen Mutually Aided Co-operative Society Ltd. , Kakani seeks a declaration that the order of the first respondent bearing Roc. No. 5305/96-G2, dated 19-10-2000 is illegal and for a consequential direction to the said respondent to decide the extent of ayacut of Kakani Irrigation Tank strictly in accordance with the order of the Division Bench of this Court dated 17-11-1999 in W. P. Nos. 4631 and 14920 of 1999. ( 2 ) THE acrimonious contest between the petitioner and the seventh respondent/fishermen Co-operative Society, Kakani is in respect of fishing rights in the Irrigation Tank, Kakani. The controversy in the writ petition is whether the tank is a major or a minor irrigation tank. It is the admitted position of the applicable principle, by all parties concerned that if the tank in question is a major irrigation tank, then the power to auction the fishing rights would vest in the Fisheries Department of the State and if the tank were to be a minor irrigation tank such a right would inhere in the Kakani Gramapanchayat, the sixth respondent herein. It is also the agreed factual scenario that the tank being located in the Andhra area of the State if it has an ayacut of up to 200 acres it is to be treated as a minor irrigation tank and if the area of the ayacut is beyond 200 acres, it would fall to be characterised as a major irrigation tank. ( 3 ) IN the Guntur District Gazette Notification Dated 12-5-1997 of the Irrigation Department specifying the ayacuts of various tanks in Guntur District, the Kakani tank has been specified at Sl. No. 70 with an ayacut of 230. 00 acres. It is, however, described as a minor irrigation tank. In a letter addressed by the Mandal Revenue Officer, Narsaraopet, to the Extension Officer (Panchayats), Narasaraopet, the Mandal Revenue Officer has stated that the tank is called as Circar Cheruvu, a second class source of irrigation with an extent of registered ayacut of 79 acres as per the RSR of Kakani Village. In the proceedings of the District Collector (Panchayats), Guntur dated 30-5-1998, the tank is described as a minor irrigation tank occurring in Kakani Gramapanchayat of Narsaraopet Mandal in D. No. 418 and the ayacut under it is 79 acres.
In the proceedings of the District Collector (Panchayats), Guntur dated 30-5-1998, the tank is described as a minor irrigation tank occurring in Kakani Gramapanchayat of Narsaraopet Mandal in D. No. 418 and the ayacut under it is 79 acres. This recording of fact by the District Collector in his proceedings dated 30-5-1998 appears based on the report of the Mandal Revenue Officer contained in his letter dated 27-4-1998, referred to earlier. In the report signed by the Village Administrative- Officer, Kakaoi, the Mandal Revenue Officer. Narsaraopet, the Additional District Magistrate, Guntur and the Jamabandl Officer-cum-District Revenue Officer, Guntur, the extent of the irrigated area under the tank is set out as 79. 46 acres. This is also the extent of wet land irrigated thereunder. ( 4 ) THESE different proceedings on record, setting out divergent accounts of the ayacut under the tank is adverted to, to conclude that there is a serious dispute as to the extent of ayacut under the tank. The resolution of this dispute and the determination of the appropriate ayacut will determine the character of the tank - whether it is a major irrigation or a minor irrigation tank. It is on the result of such determination of the character of the tank that the right of the Gram Panchayat or the Fisheries Department, as the case may be, will depend, in the matter of the entitlement to lease out the fishing rights in respect of the said tank. ( 5 ) THE seventh respondent instituted W. P. No. 4631 of 1999 for a declaration that the tank in question is not a minor irrigation tank, the Gramapanchayat has no power to lease out the fishing rights in the tank and the fishing department alone is competent to lease out the rights. W. P. No. 14920 of 1999 has been instituted by the Rajaka Seva Sangham, Kakani questioning the notification dated 12-5-1997 issued by the Irrigation Department, showing the ayacut under the tank as 230 acres. Apparently Rajaka Seva Sangham was canvassing that the power to grant the lease hold rights in the tank vest in the Gramapanchayat. ( 6 ) BOTH the writ petitions were heard together and by a common order dated 17-11-1999 a Division Bench of this Court concluded that the factual issues have to be determined by the District Collector, Guntur.
Apparently Rajaka Seva Sangham was canvassing that the power to grant the lease hold rights in the tank vest in the Gramapanchayat. ( 6 ) BOTH the writ petitions were heard together and by a common order dated 17-11-1999 a Division Bench of this Court concluded that the factual issues have to be determined by the District Collector, Guntur. All the counsel appearing for the respective parties, which include the petitioner and the seventh respondent herein, agreed that the issue should be determined by the first respondent herein. On the basis of the above agreement between the parties, this Court directed the first respondent herein to hold an inquiry into the following questions :1. Whether the ayacut of Kakani Tank is Ac. 79. 00 or Ac. 230. 00 and if it is Ac. 230. 00 or whether the Gramapanchayat has any right whatsoever over the tank?2 Whether the Gram Panchayat is justified in setting apart Kakani tank for washing purposes and consequently leasing out the fishery rights in favour of Rajaka Sangham or Harijan Mutually Aided Co-op. Society?3 Whether the Gram Panchayat has any power to black-list the Fishermen Co-operative Society and if it has power was it been done in accordance with the established procedure and the principles of natural Justice? ( 7 ) THIS Court also declared that the inquiry shall be conducted by the first respondent in consultation with the irrigation Department, Fisheries Department, Panchayat Raj Department by giving an opportunity to all the concerned and that the first respondent is at liberty to consult any other department or official. The disputant parties are also at permitted to produce documentary evidence to establish their claim before the District Collector during the course of inquiry as also to raise the legal objections as are available to them. The first respondent was directed to complete the exercise of inquiry within a period of eight weeks from the date of receipt of the order of this Court. ( 8 ) ANOTHER W. P. No. 4433 of 2000 was instituted by the Rajaka Seva Sangham complaining that the first respondent herein is proceeding to determine the issues without notice to it.
( 8 ) ANOTHER W. P. No. 4433 of 2000 was instituted by the Rajaka Seva Sangham complaining that the first respondent herein is proceeding to determine the issues without notice to it. The said writ petition was disposed of by this Court on 4-8-2000 directing the first respondent herein to determine the questions in terms of the directions of the Division Bench of this Court dated 17-11-1999 (adverted to earlier) by sending notices to the parties by Registered post acknowledgement due. The first respondent was also directed to complete the inquiry within four weeks. ( 9 ) THE first respondent herein sent notices on 31-8-2000 to fourteen parties. Including the petitioner and the seventh respondent herein to attend the inquiry scheduled on 14-9-2000. The petitioner admits to have received the said notice. The admitted factual scenario is that no inquiry could be held on 14-9-2000 on account of the absence of many of the parties to whom notices were sent. The first respondent herein resheduled the inquiry on 10-10-2000. In this behalf be got issued telegrams to all the parties specifying the adjourned inquiry at 5. 00 p. m. on 10-10-2000. The telegram issued by the first respondent was received by the petitioner on 11 -10-2000, a day after the scheduled date of adjournment. The impugned order came to be passed on 19-10-2000. Having regard to its brevity, it is worth extracting in extenso. "it has been established on record i. e. . the Disrict Gazeette Notificaion by Irrigaion Deparment that the exent of Kapani Tank in Narsaraopet Mandal is Act. 230. Therefore, it is no a Minor irrigaion tank. Inasmush as he tank is question is no a minor irrigation tank. I does no come under vestitue o he Grampanchayat under he provisions of he A. P. Panchyat Raj Act, 1994. therefore, he fishery rights do not accrue to the Grampanchyat". (SIC) ( 10 ) THE petitioner assails the impugned order on a plurality of grounds. Firstly, that It is inconsistent with the Mandamus issued by this Court in W. P. No. 4433 of 2000. wherein the respondents have been directed to serve notices by registered post acknowledgement due, secondly that apropos the decision of this Court dated 17-11-1999 in W. P. Nos.
Firstly, that It is inconsistent with the Mandamus issued by this Court in W. P. No. 4433 of 2000. wherein the respondents have been directed to serve notices by registered post acknowledgement due, secondly that apropos the decision of this Court dated 17-11-1999 in W. P. Nos. 4631 and 14920 of 1999, all the parties are entitled to notice and an opportunity of being heard and the petitioner has been dented such an opportunity, as the telegram intimating the adjourned date of hearing on 10-10-2000, has been received a day after the scheduled date of hearing i. e. , 11-10-2000, thirdly that even after this Court by order dated 17-11-1999 directed the first respondent to specifically consider the three issues spelt out by this Court, the impugned order does not facially disclose any such consideration by the first respondent, fourthly on the ground that having regard to the long drawn out lis between the parties as to the substantial questions of fact which have a bearing on the existence or otherwise of a Jurisdiction in the Gramapanchayat or Fisheries Department, as the case may be, and having regard to the divergent notices and determinations by different departments of the State as to the ayacut of the tank, the first respondent is required to record in clear terms and in sufficient detail, the reasons that fertilized his decision determining the tank as a minor irrigation tank or his decision that the extent of its ayacut is Acs. 230. 00. The failure of the first respondent in this regard vitiates the decision on account of the absence of sufficient and coherent reasons, is the other contention. ( 11 ) THIS challenge to the validity of the impugned order is resisted by the first respondent by stating that pursuant to the Order of this Court referred to above, the first respondent got the matter inquired by a Joint Inspection Committee, which was conducted on 13-5-2000, which included the District Panchayat Officer, Guntor, the Revenue Divisional Officer, Narasaraopet, the Assistant Engineer, Minor irrigation Section, Narasraopet, and the Assistant Engineer (O and M) Section, N. S. Right Canals, Rompicherla. The District Gazette notification Dated 12-5-1997 was also considered and in consultation with the officials the various departments mentioned above, the determination contained in the impugned order has been arrived at.
The District Gazette notification Dated 12-5-1997 was also considered and in consultation with the officials the various departments mentioned above, the determination contained in the impugned order has been arrived at. ( 12 ) THE reasons recorded by the first respondent in the counter-affidavit may not contribute to the validity of the order impugned. The law is well settled in Commissioner of Police v. Gordhandas, AIR 1952 SC 16 and Is reiterated in Mohinder Singh v. Chief Election Officer, AIR 1978 SC 851 that the reasons for a decision must be contained in the instrument conveying the decision. No reasons could be contributed later, to supplement the void in the order by which the decision is taken. The reasons set out in the counter-affidavit of the first respondent do not appear to have animated the conclusion which is recorded by the first respondent in the impugned order. No doubt the Joint Inspection conducted by the concerned officers and the representations filed by the petitioners are among the items recorded in the reference to the preamble of the order, but per se the order does not disclose any analysis of the Joint committee report. The Division Bench order of this Court dated 17-11-1997 obligates the first respondent to record reasons by application of his mind to the contentions issues that were urged for his determination. This objection could only have been met by considering the various material available or that has come to his notice, by analysing the said material and by recording clear and cogent reasons for his conclusion that the ayacut of the Tank is of an extent of Ac. 230. 00. ( 13 ) THE telegram of the Collector scheduling the adjourned inquiry to 10-10-2000 was received by the petitioner only on 11-10-2000 is not denied. Consequently, the petitioner was denied reasonable opportunity the inquiry scheduled on 10-10-2000. This is yet another vitiating factor for invalidating the impugned order. ( 14 ) IT is additionally contended by the learned counsel for the petitioner that in view of the orders of this Court dated 4-8-2000 in W. P. No. 4433 of 2000, the first respondent is obligated to send notice of the inquiry to all the persons by registered post and that the action of the first respondent in sending the notice of the inquiry scheduled on 10-10-2000 by telegram is contrary to the said order and thus invalid.
In my considered view the second contention does not merit acceptance. Initially the notice scheduling the inquiry on 14-9-2000 has been issued by registered post acknowledgement due and has been received by the petitioner. It is stated at the Bar that the petitioner has not attended the said enquiry. Be that as it may, it is not necessary that notice of every hearing should be sent by registered post. If the petitioner has received the notice that is sufficient compliance with the requirement of natural Justice. In the case on hand, however it is seen that the petitioner has received notice of the adjourned inquiry after the date of the inquiry namely on 11-10-2000, the petitioner has thus been denied reasonable opportunity. ( 15 ) IN the totality of circumstances above, the impugned order of the first respondent dated 19-10-2000 is set aside. The first respondent shall now proceed to determine the questions as directed by this Court in W. P. Nos. 4631 and 14920 of 1999 by the Judgment dated 17-11-1999, after giving notice to all the concerned as directed in the said Judgment. The first respondent shall also record reasons for arriving at the extent of Ayacut under Kakani irrigation Tank by duly considering and analysing the various earlier reports and findings regarding the extent of the Tank in question. ( 16 ) IT is noticed arid it has already been adverted to, that in the letter dated 27-4-1998 addressed by the Mandal Revenue Officer to the Extension Officer, Panchayats it is stated that Kakani Irrigation Tank in Kakani village is a second class source of Irrigation with an extent of registered Ayacut of Ac. 79. 00 as per R. S. R. of Kakani village. This position is reiterated in the proceedings of the District Collector, Guntur in ROC No. 5305/96-G2 dated 30-5-1998 and on the basis of the clarifications of the Government on the question, the District Collector has by these proceedings treated the Tank as Minor Irrigation Tank. In a Joint report signed by the Village Administrative Officer, Mandal Revenue Officer, Narasaraopet, Additional District Magistrate, Guntur and Jamabandhl Officer in June, 1999, the extent of the crops under Kakani tank is shown to be in the order of Ac. 79. 46 and the tank is described as a Minor Irrigation Tank.
In a Joint report signed by the Village Administrative Officer, Mandal Revenue Officer, Narasaraopet, Additional District Magistrate, Guntur and Jamabandhl Officer in June, 1999, the extent of the crops under Kakani tank is shown to be in the order of Ac. 79. 46 and the tank is described as a Minor Irrigation Tank. However, in the notification issued by the Irrigation Department under the Provisions of the A. P. Farmers Management of Irrigation Systems Act, 1997, the extent of Ayacut under the tank is shown to be in the order of Ac. 230 and the Kakani tank is described as Minor Irrigation Tank. ( 17 ) HAVING regard to the fact that the extent of Ayacut under the tank would determine whether the tank is a Minor Irrigation Tank or otherwise and this determination of the character of the tank contributes to the jurisdictional fact as to whether the rights to lease out fishing in these tanks vests in the Grampanchayat or in the Fisheries Department, the first respondent District Collector is obligated to record sufficient reasons to disclose that the available material has been considered and as to how the conclusion as to the character of the tank has been arrived at. ( 18 ) THE record of the case discloses that there has been in the past and there would continue to be, sufficient attrition not only between the Fishermen Co-operative Socle-ties and Washermen Co-operative Societies but also between Grampanchayat and the Fisheries Department as regards the entitlement to leasing rights in the tanks as well as power to grant leases in respect of the tank in question. In these circumstances, the first respondent is obligated to record his reasons to support the conclusion arrived at. ( 19 ) IT is well settled that reason when required to be recorded are distinct from conclusions or ipse dixit setting out of the conclusions. As has been succinctly stated by the Supreme Court in the Union of India v. M. L. Capoor, AIR 1974 SC 87 . "reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision, whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and conclusions reached.
"reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision, whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly Just and reasonable. " ( 20 ) THOUGH notice of the adjourned inquiry scheduled on 10-10-2000 was not communicated to the petitioner in time and was received by him on 11-10-2000, it is stated by the learned counsel for the petitioner that pursuant to the earlier notice dated 31-8-2000 communicated by the first respondent, the petitioner has submitted Its objections/representations to the question in issue. As the matter has been under process for considerable time, I consider it appropriate to direct the first respondent to conduct appropriate enquiry and deliver his decision in the matter as directed by this Court by the orders dated 17-11-1999 in W. P. Nos. 4631 and 14920 of 1999 expeditiously and in any case within a period of 30 days from the date of receipt of a copy of this order. The first respondent shall fix a date for enquiry into the matter, well in time and give notice of the date of enquiry to all the persons interested including the petitioner and to the 7th respondent herein. This intimation of the date of inquiry may be given by first respondent either by telegram or by special messenger, so ensuring that the persons concerned have adequate notice of the scheduled date of enquiry. On the date fixed for enquiry, the first respondent shall proceed with the enquiry without adjourning the matter further and give a decision after recording reasons as directed. Till the decision of the first respondent as directed, the petitioner who has been granted lease by the Grampanchayat, the 6th respondent herein on 9-3-1999 shall be entitled to operate on the basis of the lease. The validity or continuance of the lease in favour of the petitioner shall depend upon the decision of the first respondent as directed above. ( 21 ) THE writ petition is allowed as above. No order as to costs. Petition allowed.