Mahila Meenugarara Sahakara Sangha Limited Mysore Taluk v. State of Karnataka
2010-07-28
MOHAN M.SHANTANAGOUDAR
body2010
DigiLaw.ai
Judgment Mohan Shantanagoudar, J. Heard the Counsel for the petitioner and Government Advocate for respondents. 2. Petitioner has questioned the order Annexure-‘G’ dated 20th March, 2009 issued by the 1st respondent by which the duration of authorization relating to fishing rights assigned to the petitioner-Society is reduced to one year from five years. 3. The record reveals that the petitioner is a Fishing Co-operative Society registered under the Karnataka Co-operative Societies Act. All the members of the petitioner-Society are ladies and their main avocation is fishing inasmuch as they belong to fishing community. The petitioner-Society applied for grant of lease of fishing rights in respect of Doora Lake, Mysore. After considering the application filed by the petitioner and after satisfying that the petitioner has fulfilled all the conditions, the Senior Assistant Director of Zilla Panchayath, Mysore granted fishing rights in favour of the petitioner for a period of five years from 21.10.2008. As per the lease conditions, the petitioner had to pay lease amount of Rs.3,975/- for the 1st year and for subsequent years it has been increased by 10% of the original lease amount. After getting permission, the petitioner-Society has spent considerable amount of money and reared the fished. Till this day, the petitioner is continuing with the work of fishing. When the facts stood thus, abruptly a letter/order came to be issued as per Annexure-‘G’ dated 20th March, 2009 by which it is intimated that the State Government has reduced the period of lease from five years to one year i.e., the lease/authorization is restricted only for the year 2008-09. The said order is called in question in this writ petition. It is also relevant to note that fresh notification is issued as per Annexure-‘H’ dated 17.06.2009 calling for fresh applications, pursuant to the order Annexure-‘G’. The notification Annexure ‘H’ is also called in question in this writ petition. 4. The State of Objections are filed by the learned Government Advocate. The statement of objections reveal that the Tank Development Fish Production and Marketing Co-operative Society Limited, Mysore having its registered office at No.1833. Akbar Road, Lashkar Mohalla, Mysore Seems to have objected for grant of lease in favour of the petitioner for five years.
4. The State of Objections are filed by the learned Government Advocate. The statement of objections reveal that the Tank Development Fish Production and Marketing Co-operative Society Limited, Mysore having its registered office at No.1833. Akbar Road, Lashkar Mohalla, Mysore Seems to have objected for grant of lease in favour of the petitioner for five years. It seems the said Tank Development Fish Production and Marketing Co-operative Society limited (hereinafter called as “objector society”) petitioned before the State Government that the jurisdiction of the said Society is Mysore and Jayapura Hobli of Mysore Taluk and whereas the jurisdiction of the petitioner-Society is extended to Mysore, K.R. Nagar and Hunasoor Taulkas. According to it, the said Society is nearer to the place where the tank is situated and therefore it should have been given preference. It is also the case of the Objector Society that the petitioner-Society has not obtained ‘No Objection Certificate’ from the Karnataka Co-operative Fisheries Federation, Mysore. Considering the objections filed by Tank Development Society, the impugned order seems to have been passed after getting a report from the Director of Fisheries. The report of the Director of Fisheries dated 30.12.2008 is found at Annexure-‘R4’. The report of the Directorate of Fisheries clearly reveals that the Lingambudi Tank of Mysore Taluk and Kukkerehalli Tank of Mysore which are having the extent to 32 hectare and 53 hectares respectively are allotted to the objector Society already. Thus it is clear that the objector society is exercising fishing rights on tanks which totally measure 85 hectares The tank in question is situated in Jayapura Hobli of Mysore Taluk. It is not in dispute that the petitioner-Society has jurisdiction over entire Mysore Talk which includes Jayapura Hobli also. It is also not disputed that petitioner is also the member of the Federation. After considering all the materials on record, the concerned authority has granted fishing rights in favour of the petitioner-Society. 5. As aforementioned, the petitioner-Society is fully managed and controlled by ladies who are from fishing community itself. The petitioner-Society has got no authorization in respect of any other Tank till this day except the tank in question, whereas the Objector Society is already having authorization in respect of two tanks measuring 85 hectares. At the time of granting authorization, the concern authority has exercised his discretion appropriately in order to follow ‘live and let live’ policy.
The petitioner-Society has got no authorization in respect of any other Tank till this day except the tank in question, whereas the Objector Society is already having authorization in respect of two tanks measuring 85 hectares. At the time of granting authorization, the concern authority has exercised his discretion appropriately in order to follow ‘live and let live’ policy. In case, if the authorization granted to the petitioner is restricted to one year abruptly, the same may create hardship. Moreover, the impugned order is passed behind the back of the petitioner. In view of the above, this Court is of the considered opinion that interest of justice will be met if the impugned order is set-aside. The State Government should not have restricted the lease period to one year particularly when the concerned Officer has legally authorized the petitioner-Society and granted fishing rights for five years. In view of the same the impugned order is liable to be quashed. 6. The impugned order, in fact, does not disclose anything against the petitioner. On the other hand, the contents of the impugned order are in favour of the petitioner. In the impugned order, the concerned authority has observed that the authorization granted in favour of the petitioner society in respect of the fishing rights is valid and that the reservation granted in favour of the petitioner-society is also constitutional. However, in one sentence, the authority concerned, has reduced the authorization to one year from five years without assigning any reason, must less valid reason. Probably, the said sentence is inserted in view of the direction issued by the State Government. The impugned order is not a speaking order. Hence, the impugned order is not only illegal, but arbitrary. 7. When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. In the case of Commissioner of Police Vs. Gordhandas Bhanji, reported in AIR 1952 SC 16 , Bhose, J., observed thus:- “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what in his mind, or what he intended to do.
Gordhandas Bhanji, reported in AIR 1952 SC 16 , Bhose, J., observed thus:- “Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what in his mind, or what he intended to do. Public orders made by public authorities are mean to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.” See also the case of Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, reported in AIR 1978 SC 851 . The impugned order runs contrary to the dictum laid down in the aforementioned judgments of the Supreme Court. Hence, the same is liable to be quashed. 8. The petitioner Society has already spent considerable amount after getting the authorization, as is clear from the report of the Director of fisheries. They have reared the fished. Therefore, it is not appropriate for the State Government to restrict the licence to one year without any reason. Accordingly, Annexure-‘G’ stands quashed. Consequently, the notification Annexure ‘H’ calling for fresh applications also stands quashed. Petition is allowed.