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2020 DIGILAW 119 (ORI)

Babamani WSHG v. State of Odisha

2020-05-28

B.R.SARANGI, MOHAMMAD RAFIQ

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JUDGMENT : B.R. Sarangi, J. 1. Babamani Women Self Help Group, Nuagaon, represented through its president, has filed this writ application seeking mandamus to the opposite parties to extend the period of lease of Dandimunda tank situated in Mouza-Bayangadihi, P.O.- Nuahat, P.S.- Dhusuri, Dist-Bhadrak for five years by quashing the notice dated 21.05.2020 issued by the Tahasildar, Dhamnagar for putting the sairat into auction for the year 2020-21 pursuant to misc. case no. 78 of 2020-21. 2. Factual matrix of the case, in hand, is that the Tahasildar, Dhamnagar-opposite party no. 4 issued an auction notice for auctioning the sairat source of Dandimunda tank for the year 2019-20. Pursuant to which, the petitioner participated in the process of auction and the source was allotted in its favour for the year 2019-20, being the highest bidder, whereafter the petitioner started pisciculture, but not harvested till date. Since the period for 2019-20 has been over, fresh notice was issued by the Tahasildar, Dhamnagar in misc. case no. 78/2020-21 vide Annexure-1 fixing 21.05.2020 as the date of auction at 9 a.m. in his office. Hence this application. 3. Mr. B.C. Ghadei, learned counsel for the petitioner contended that the petitioner has invested money for pisciculture, but not harvested the same. Before harvesting, fresh auction notice vide Annexure-1 has been issued. Though the petitioner has submitted a representation to grant long term lease for five years, as per the Government guidelines contained in Orissa Fisheries Policy, 2015, during pendency of the same issuance of impugned notice cannot sustain in the eye of law. The petitioner also relied upon a circular issued by the Director of Fisheries dated 19.08.2016, where long term lease of Gram Panchayat/revenue tanks for pisciculture was directed to be considered by the Collectors for a period of five years. It is further contended that as per the said guideline of the Fisheries Department, the petitioner should be allowed to continue for a period of five years, instead of the term lease of one year. To that extent, it is contended that the petitioner has also approached the Sub-Collector, Bhadrak by filing representation, which is available at page-18 of the brief, and the same has also not been considered till now. To that extent, it is contended that the petitioner has also approached the Sub-Collector, Bhadrak by filing representation, which is available at page-18 of the brief, and the same has also not been considered till now. It is further contended that the Director of Fisheries on 28.05.2018 have stated that the selected WSHGs will be imparted training on scientific pisciculture and would be extended input subsidy assistance up to 60% and further reliance has also been placed on Government circular of Panchayati Raj and Drinking Water Department dated 08.06.2018 with regard to grant of lease for a period of three to five years by the Gram Panchayat, but that shall not be granted without prior approval of the Sub-Collector and Collector respectively. Therefore, it is urged that when the grievance of the petitioner is still pending for enhancement of the lease period from one year to five years, the notice issued in Annexure-1 by the opposite party no. 4 for auction for the year 2020-21 cannot sustain in the eye of law. 4. Mr. D. Mohanty, learned Addl. Government Advocate appearing for the State opposite parties contended that admittedly the petitioner was granted on lease the sairat source in question for the year 2019-2020, which has been admitted in the pleading in para-3 of the writ application and such period has already expired by 31.03.2020, therefore, there is no illegality or irregularity committed by the Tahasildar, Dhamnagar-opposite party no. 4 by issuing a fresh notice in Annexure-1 for conducting fresh auction of the sairat source for the year 2020-2021 fixing the date to 21.05.2020, as date of auction. So far as extension of lease period from one year to five years is concerned, it is contended that the petitioner has relied upon the circulars dated 19.08.2016 and 28.05.2018 issued by the Fisheries Department, but the sairat source belonged to Panchayati Raj Department. Thereby, the provisions contained in Gram Panchayat Act and Rules are applicable for grant of lease of sairat source belonging to Gram Panchayat department. Thereby, the provisions contained in Gram Panchayat Act and Rules are applicable for grant of lease of sairat source belonging to Gram Panchayat department. As per Rule 49 of the Gram Panchayat Rules, 2014 procedure has been envisaged for leasing out the source for a period of one year, i.e., for the session 2019-2020 and that period, having been expired, cannot be extended for a period of five years, because the petitioner is bound by the terms and conditions stipulated in the notice of auction vis-a-vis the agreement executed between the parties. Reliance has been placed by the petitioner on letter dated 08.06.2018 issued by the Panchayati Raj & Drinking Water Department, whereby the Government has decided to grant long term lease of Gram Panchayat tanks for pisciculture, but admittedly the petitioner has been granted sairat source in question in the year 2019-2020 knowing fully well that such circular is made available. Thereby, the claim of the petitioner to extend the period of the said lease for five years cannot sustain. 5. This Court heard Mr. B.C. Ghadei, learned counsel for the petitioner and Mr. D. Mohanty, learned Addl. Government Advocate appearing for the State opposite parties, and perused the record. On the basis of the undisputed factual matrix, as discussed above, it is to be decided whether the lease granted to the petitioner from one year to five years, pursuant to the auction held in 2019 for the period 2019-2020, can be extended and the petitioner will be allowed to continue with the same without going for a fresh auction pursuant to Annexure-1. 6. It is pertinent to mention here that Mr. Ghadei, learned counsel for the petitioner relies upon the letter dated 19.08.2016 issued by the Director of Fisheries, Odisha addressed to all the Collectors for long term lease of GP (Gram Panchayat)/revenue tanks for pisciculture. On perusal of the said letter it appears that the Director of Fisheries, Odisha has expressed his view that most of MIPs/GP/revenue tanks below 40 Ha under the jurisdiction of Panchayati Raj/Revenue & DM Department is being leased out for pisciculture for a duration of 1 to 3 years which creates less opportunity for lessee to make investment for increasing fish production from 2 MT/Ha/Yr to 5 MT/Ha/Yr through adoption of scientific management practice, which will also encourage the bankers to extend credit to fish farmers for taking up intensive aquaculture. Reliance has also been placed with regard to para 7.1.4 (C) of Odisha Fishery Policy, 2015 for grant of lease for a period of three years. Therefore, requisition was made to the Collectors for giving long term lease to GP tanks for pisciculture. Therefore, no specific direction has been issued by the Director of Fisheries, Odisha in the said letter dated 19.08.2016 to grant long term lease for a period of five years to the existing lessee, rather opinion has been expressed for consideration for grant of long term lease in the said letter addressed to all the Collectors. On 18th May, 2018, the Director of Fisheries also addressed a letter to all the Collectors and District Magistrate for promotion of pisciculture in Gram Panchayat tanks on long term lease basis through Women Self Help Groups, where view has been expressed that selected WSHGs will be imparted training on scientific pisciculture and would be extended input subsidy assistance up to 60% with an unit cost of Rs. 1.5 lakhs/ha under RKVY. This letter also does not indicate for extension of lease for one year to five years. 7. Reliance has also been placed on letter dated 08.06.2018 issued by the Addl. Secretary to Government Panchayati Raj & Drinking Water Department addressed to all the Collectors with regard to grant of long term lease of Gram Panchayat tanks for pisciculture, wherein it has been specifically mentioned that the Government has been pleased to approve the guideline for leasing out the Gram Panchayat tanks for the purpose of in-land fresh water pisciculture. It has also been specifically mentioned that the procedure for leasing out the Gram Panchayat tanks, as provided under Rule 49 of the Gram Panchayat Rules, 2014, may continue. Lease for a term of three to five years shall be granted by the Gram Panchayat. Any lease for a term exceeding five years and less than ten years and for any term exceeding ten years shall not be made without prior approval of Sub-collector and Collector respectively. But the said guideline does not indicate that existing lease, which has been granted for a period of one year, would be extended for five years automatically. Any lease for a term exceeding five years and less than ten years and for any term exceeding ten years shall not be made without prior approval of Sub-collector and Collector respectively. But the said guideline does not indicate that existing lease, which has been granted for a period of one year, would be extended for five years automatically. More particularly, the auction notice was issued for the year 2019-20 for grant of lease for a period of one year and by that time the guidelines issued on 08.06.2018 had seen the light of the day. Knowing fully well that such a guideline has been issued, that auction notice was issued for grant of lease for a period of one year for the year 2019-20, in which the petitioner participated and being the highest bidder, source was allotted in its favour. Therefore, reliance placed on the letters issued by the Director, Fisheries dated 19.08.2016 and 28.05.2018, as well as the subsequent letter issued by the Government fixing guidelines dated 08.06.2018 may not have any assistance to the petitioner to claim that the lease, which was granted for a period of one year, pursuant to auction notice issued for the year 2019-20, should be extended for a period of five years. As such, with the expiry of the period, the petitioner has no locus to claim that its application is pending for extension of lease for a period of five years. Thereby, the subsequent notification issued for grant of lease for the year 2020-21 cannot be said to be illegal. More particularly, the petitioner is bound by the condition stipulated in the notice for grant of sariat source vis-a-vis the subsequent agreement executed between the parties, by which the term of lease was one year and on expiry of period of lease, it cannot claim for extension for a period of five years. Therefore, the claim made that the notice issued under Annexure-1 for grant of lease for the year 2020-21 cannot sustain in the eye of law, is untenable. 8. It is well settled principle in law that the Court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements. 9. 8. It is well settled principle in law that the Court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. The language employed in a statute is the determinative factor of legislative intent. Similar is the position for conditions stipulated in advertisements. 9. In Institute of Chartered Accountants of India v. M/s. Price Waterhouse and Another, AIR 1998 SC 74 the apex Court held that the words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. 10. In Stock v. Frank Jones (Tiptan) Ltd., (1978) 1 All ER 948 (HL)), it is held that it is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. 11. In Vickers Sons and Maxim Ltd. v. Evans, (1910) AC 445 (HL), it was held that Rules of interpretation do not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. This principle has been quoted in Jamma Masjid, Mercara v. Kodimanjandra Deviah and others, AIR 1962 SC 847 . 12. In Union of India and others v. Filip Tiago De Gama of Vedem Vasco De Gama, AIR 1990 SC 981 , the apex Court held that the question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". 13. In D.R. Venkatchalam and others etc. v. Dy. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". 13. In D.R. Venkatchalam and others etc. v. Dy. Transport Commissioner and others etc., AIR 1977 SC 842 , it was held that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 14. In Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain, (2000) 5 SCC 511 , the apex Court held that while interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. The legislative casus omissus cannot be supplied by judicial interpretative process. 15. In view of the above analogy, it is made clear that there are two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. 16. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. 16. In view of such position, the golden rule for construing all written instruments has been stated that the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no further. 17. The question of extension of period of license was under consideration by the apex Court in Bharati Airtel Ltd. v. Union of India, etc., AIR 2015 SC 2583 . In that case, refusal to extend the period of license to provide Cellular Mobile Telephone Service (CMTS) and Unified Access (Basic and Cellular) Services License (UAS Licenses) was the subject-matter of challenge. The apex Court held that the extension of license would mean extension of privilege to use spectrum which was bundled with original grant and that would be against its policy to auction spectrum separately, thereby held that refusal of extension is valid. It was further held that licenses in dispute are in the nature of largesses and policy to auction spectrum satisfies condition that grant should in non-arbitrary manner as well as condition that people should be adequately compensated by which authority of Government to grant largesses is fettered. 18. Keeping in view the settled position of law, as discussed above, and applying the same to the present context, this Court is of the considered view that the petitioner, having participated in the process of auction for a specified period, i.e., from 2019-2020, after expiry of the term of lease, has no right to claim for grant of extension of time from one year to five years and, as such, the Court cannot give any interpretation beyond the conditions stipulated in the notice of auction and consequential agreement executed between the parties, particularly when the petitioner is bound by the conditions stipulated therein. In other words, the Court cannot also give any other interpretation to the conditions stipulated therein, as the language is unambiguous and on a plain reading this Court comes to a conclusion that the petitioner is bound by its own terms and conditions and, as such, beyond the period prescribed, i.e., 2019-2020, the extension claimed for further period of five years cannot sustain in the eye of law. 19. In view of the foregoing discussions, this Court does not find any merit in the writ application, which is hereby dismissed. However, there shall be no order as to costs.