Berya Fishermen Co-operative Society Limited, Rep. by its Secretary v. Senior Assistant Director of fisheries
2009-04-03
N.K.PATIL
body2009
DigiLaw.ai
Judgment :- The petitioner, assailing the correctness of the impugned order dated 16.10.2008 made in No. ALL:12:2008-09 passed by 2nd respondent vide Annexure-M; the impugned letter dated 11.11.2008 made in No. ALL:1:08-09 passed by 2nd respondent vide Annexure-Q has presented this writ petition. Further, the petitioner has sought to direct the respondents-1 and 2 to grant the lease of the tank at Hosagrahara Hosagrahara Hobli, pursuant to the tender notification dated 7.6.2008 made in No.Hagupa:05:2008-09 vide Annexure-A in favour of the petitioner by considering the application dated 30.8.2008 vide Annexure- B and etc. 2. The undisputed facts of the case are that, in pursuance of the notification issued by the authorized officer of the respondents dated 7.6.2008 vide Annexure-A, petitioner and third respondent have filed their applications seeking grant of lease right for harvesting fishes at Hosagrahara tank, Hosagrahara Taluk, K.R.Nagar, Mysore District, It is the further case of the petitioner that, respondents-1 and 2 have not considered the applications filed by the petitioner and third respondent in strict compliance of the terms and conditions of the notification. The respondents have proceeded to conclude the proceeding granting lease in favour of third respondent only on the basis of the recommendations forwarded by the local Member of Legislative Assembly and placing reliance, specifically, on the “No Objection” communication sent by the Secretary and the president of the petitioner’s society. Further, it is the specific case of the petitioner that, if there are two applications are available, the respondents-1 and 2 have to thoroughly verify the same before granting lease. But said aspect of the matter has not been looked or verified or considered by the respondents-1 and 2. Therefore, petitioner was constrained to redress his grievance before this Court, by way of presenting this writ petition, questioning the correctness of the impugned orders and communications issued by the second respondent as referred above. 3.
But said aspect of the matter has not been looked or verified or considered by the respondents-1 and 2. Therefore, petitioner was constrained to redress his grievance before this Court, by way of presenting this writ petition, questioning the correctness of the impugned orders and communications issued by the second respondent as referred above. 3. The principal submission canvassed by the learned counsel appearing for petitioner is that, the impugned order and the communication issued by the second respondent are liable to be set aside at threshold, since it is not in dispute that both petitioner and third respondent are eligible and when the applications filed by them are available for consideration, respondents have to consider the same as per condition No.9 Annexure-D the government order dated 28.1.2006 and contrary to this, respondents have proceeded and granted the leasing rights in favour of the third respondent, solely on the ground that, the Secretary and President of the petitioner’s society has given “No objection” by way of undertaking letter dated 14th October 2008 produced at Annexure- E. It is the case of the petitioner that, the said undertaking which will defeat the rights of the society has been given by them under threat and pressure of local MLA and other interested persons. After realizing the mistake committed by them, immediately they have placed the matter before the Committee of the petitioner’s society on 16.10.2008 and passed a resolution by majority members to withdraw the said communication and communicated the same to the respondents-1 and 2 stating that, they are withdrawing their communication issued earlier on 14.10.2008 and they are interested to pursue their claim for grant of leasing right for harvesting fishes in Hosagrahara tank and the said communication has not been looked into or considered by the respondents. Further, learned counsel appearing for petitioner has vehemently submitted that, respondents have considered the case of the third respondent only on the basis of the recommendation forwarded by the local MLA and they ought to have considered the same strictly in terms and conditions of the notification. Therefore, learned counsel appearing for petitioner submitted that, the impugned order passed by the second respondent granting the right in favour of third respondent for a period of five years is not justifiable and the same is liable to be set aside. 4.
Therefore, learned counsel appearing for petitioner submitted that, the impugned order passed by the second respondent granting the right in favour of third respondent for a period of five years is not justifiable and the same is liable to be set aside. 4. Per contra, learned counsel appearing for respondents, inter-alia contended and substantiated the impugned order and communication issued by the respondents-1 and 2. Further, he submitted that, the said order and communication issued are in strict compliance of the terms and conditions of the notification issued for leasing out the fishing rights in the said tank and therefore, interference by this Court is not justifiable and the petitioner has no locus standi to maintain this writ petition. To substantiate his submission, he has submitted that, as per by law of the petitioner’s society, they have no jurisdiction over the area i.e. Hosagrahara tank and they are not eligible to participate by filing their applications in pursuance of the notification. Secondly, learned Government Pleader appearing for respondents submitted that, at the time of filling the application, it is the condition precedent that, petitioner’s society has produce “No Objection Certificate” issued by the Federation, but petitioner has not produced the same. Thirdly, learned Government Pleader submitted that, petitioner is due sum of Rs.1,25,551/- to the Federation and therefore, taking all these factors into consideration the second respondent has passed and issued the said order and communication. Therefore, interference by this Court is uncalled for. 5. After having heard the learned counsel appearing for petitioner, learned Government Pleader appearing for respondents, after careful valuation of the relevant material available on record, the grounds urged by the petitioner and the stand taken by the respondents in their objections, it emerges that, in fact, as the bye law of the petitioner’s society they have got the jurisdiction over 18 villages. The said Bye law of the petitioner’s society is produced at Annexure-R1 by the third respondent and after perusing the same, it is crystal clear that, in respect of the tank in question, which has been leased out in favour of third respondent, petitioner has no right over the said area. As per the relevant provisions of the Co-operative Societies Act, the society which has the jurisdiction over the area for which the notification has been issued only, is entitled to redress its grievance.
As per the relevant provisions of the Co-operative Societies Act, the society which has the jurisdiction over the area for which the notification has been issued only, is entitled to redress its grievance. Further, it emerges as rightly pointed out by the learned counsel appearing for respondents that, in fact, petitioner has not produced any “No Objection Certification” from the Federation, which is the condition precedent for participating in the auction. Further, after careful perusal of the impugned order, it emerges that, the said order has been passed after verifying the eligibility of the both the parties and in pursuance of the undertaking letter given by the Secretary and President of the petitioner’s society stating that, they have no objection to grant leases in favour of third respondent which has been produced at Annexure-E dated 14.10.2008. The fact has not been disputed by the learned counsel appearing for petitioner. But, it is the case of the petitioner that, immediately after issuing the said communication and after realizing the mistake, the matter has been placed before the Committee of Management of the petitioner’s society on 16.10.2008 and resolved to withdraw the said communication cum undertaking given by the Secretary and President and resolved to make their claim for leasing rights and requested to grant the same. It is significant to note as rightly pointed out by the learned Government Pleader appearing for respondents-1 and 2 that, the resolution has been passed by the petitioner’s society on 16.10.2008 and on the same day, the impugned order has been passed by the competent authority and the said resolution is not available to the respondents for consideration at the time of passing the order, since the said resolution has been received by them only on 20.10.2008. Therefore, taking all these relevant factors into consideration, I am of the considered view that, petitioner has no jurisdiction over the area where the tank in question is situated and which has been notified. Secondly, petitioner has not produced any iota of evidence or documents to show that he has taken “No Objection Certificate” from the competent authority of the Federation, which is the condition precedent. Thirdly, it is fact that, petitioner is due to pay a sum of Rs.1,25,551/- to the Federation and he has not produced any documents to show that petitioner is not liable to pay the same.
Thirdly, it is fact that, petitioner is due to pay a sum of Rs.1,25,551/- to the Federation and he has not produced any documents to show that petitioner is not liable to pay the same. Therefore, the question of considering the request of the petitioner does not arise. In fact, the Secretary and President of the petitioner’s society have given “no objection” letter for granting lease in favour of third respondent and even though they have taken a decision to withdraw the same, they have communicated the same to the respondents after the lapse of four days and therefore, there is no occasion for the competent authority of the respondents to look into the same before granting the leasing right in favour of third respondent. 6. Having regard to the facts and circumstances of the case as stated above, I do not find any good grounds to interfere in the impugned order and communication issued by the second respondent. Nor the petitioner has made out any good grounds to entertain the relief sought in this writ petition. 7. For the foregoing reasons, the writ petition filed by petitioner is liable to be dismissed as devoid of merits. Ordered accordingly.