BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/12/2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.(MD)No.10940 of 2009 and M.P.No.1 of 2009 G.Aroselvan .. Petitioner. Versus 1. The District Collector, Theni District, Theni. 2.The Assistant Executive Engineer, PWD/Water Resources, Manjalar Dam, Theni District. 3.The Assistant Director of Fisheries, Inland Fisheries, Vaigai Dam, Theni District. .. Respondents. PRAYER Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the third respondent in Na.Ka.No.578/Aa/09, dated 5.10.2009 and quash the same and consequently, direct the 1st respondent to permit the petitioner for exercising his fishery right in the Mirsamuthram Tank, Allinagaram Village, Theni District, for the period 2009-2010, upto July. !For Petitioner ... Mr.D.Muruganantham ^For Respondents... Mr.Pala Ramasamy Special Government Pleader :ORDER
Heard the learned counsel for the petitioner and the learned counsel
appearing for the respondents.
2. This writ petition has been filed praying for a Writ of Certiorarified
Mandamus to call for the records relating to the impugned order passed by the
third respondent, on 5.10.2009, and quash the same and consequently, to direct
the first respondent to permit the petitioner to exercise his fishing rights, in
Mirsamuthram Tank, Allinagaram Village, Theni District, for the period 2009-
2010.
3. The petitioner has stated that the third respondent had called for
tender, for fishing rights, in Mirsamuthram Tank, in Allinagaram Village, Theni
District, under the Intensive Inland Aquaculture and Sales Scheme for the
period, from 2007-2008 to 2009-2010. The petitioner had participated in the
tender and he was the highest bidder. Therefore, the third respondent had
conferred fishing rights to the petitioner to rear fishes, by his proceedings,
dated 3.1.2008.
4. The petitioner has further stated that, pursuant to the order passed by
the third respondent, on 3.1.2008, the petitioner had paid an amount of
Rs.1,51,000/-, in favour of the third respondent for the fishing rights granted
to him, for the period 2007-2008. As such, the petitioner had been paying the
same amount for the subsequent years, as well. Similarly, a sum of Rs.1,51,000/-
, had been paid by the petitioner, on 9.7.2009, for the period 2009-2010, upto
the month of July. However, since the Mirsamuthram Tank was full of water,
during the year 2008-2009, the petitioner could not harvest the entire quantity
of fish available in the tank, even though he had invested huge amounts of money
for rearing the fish.
5. While so, the third respondent had issued the impugned order, dated
5.10.2009, depriving the petitioner of the fishing rights, without stating the
reason for cancelling the licence, issued in favour of the petitioner, for the
period 2009-2010. The main reason stated by the third respondent for cancelling
the lease granted to the petitioner is that the water in the tank had been
polluted and an abnoxious smell was emanating from the tank. Since the polluted
water in the tank could cause serious problems of hygiene and as it would not be
in the interest of the public at large, the lease granted to the petitioner had
been cancelled.
6. The main contention of the learned counsel for the petitioner is that
he had not been given sufficient opportunity to explain the reasons for the
quality of the water in the tank. Further, the first respondent had not taken
steps to set right the defects in the drainage system due to which the tank in
question was getting polluted. It has also been pointed out by the learned
counsel for the petitioner that there was no fault on his part for the
conditions prevailing in and around the Mirsamuthram Tank. Therefore, the
impugned proceedings of the third respondent, dated 5.10.2009, is liable to be
set aside and the lease relating to the fishing rights, in respect of the
Mirsamuthram Tank, in Allinagaram Village, Theni District, for the year 2009-
2010, should be granted to the petitioner.
7. In the counter affidavit filed on behalf of the third respondent, it
has been stated that the respondent had called for tender, in respect of the
fishing rights in Mirsamuthram Kanmoi, in Allinagaram Village, Theni District,
for the period from 2007-2008 to 2009-2010. The petitioner had offered the
highest amount of Rs.1,51,000/-. Accordingly, the fishery rights had been
granted in his favour, by the order passed by the third respondent, on 3.1.2008.
It has been further stated that since bad smell was emanating from the Kanmoi in
question, various representations had been made by the public to the Theni
Allinagaram Municipality. Therefore, the Collector of Theni District had
directed the concerned departments to inspect the said Kanmoi. The District
Collector, the Executive Engineer of the Public Works Department, The District
Environmental Engineer, Municipal Commissioner, Agricultural Officers and the
third respondent herein had inspected the lake. The District Environmental
Engineer, the Tamil Nadu Pollution Control Board, Dindigul, had reported as
follows:
“1. The lake water was in greenish colour
2. The lake was in Eutrofication stage due to excess algae growth.
3. Three pockets of the lake area were noticed in septic condition and
emission of excess odour from that area.
4. The people of that area reported that they are suffering from the bad
odour because of dumping of poultry waste, garbage and vegetable waste in the
lake for the fishing activities.
5.Sewage and silage were discharged into the lake from the adjacent area.
6. The above said greenish colour and the algae growth is mainly due to
excess Nitrogen and Phosphate content in the lake water. Following this the
Collector of Theni District in his proceedings Ka.mu.m.10/19 Agri, dated
28.7.2009, directed me to cancel the fishery rights of the said Kanmoi.
7. According to the Tender condition No.21 the lessee had violated the
stipulated condition by polluting the said kanmoi and posed health hazard to the
public, therefore, the District Collector had ordered to cancel the lease. I
submit that following the instruction given by the Collector of Theni, I have
issued cancellation Order in Na.Ka.No.578/A/09, dated 5.10.2009.”
In such circumstances, the lease for fishery rights granted to the petitioner,
in respect of the Mirsamuthram Tank, had been cancelled by the order of the
third respondent, dated 5.10.2009.
8. In view of the averments made on behalf of the petitioner, as well as
the third respondent and on a perusal of the records available, this Court is of
the considered view that the petitioner has not shown sufficient cause or reason
to interfere with the impugned order of the third respondent, dated 5.10.2009.
The third respondent had passed the impugned order only on the basis of the
report submitted by the District Environmental Engineer, the Tamil Nadu
Pollution Control Board, Dindigul, after an inspection of the tank in question
had been made by the various authorities, on the request of the District
Collector, Theni District, the first respondent herein. Since, it was found that
the water in the Mirsamuthram Tank was highly polluted and that rearing of
fishes cannot be carried on, the impugned order had to be passed by the third
respondent.
9. Further, it was found that if the petitioner was permitted to carry on
fishing activities it would be detrimental to the environment and to the public
health. Therefore, the third respondent had been constrained to issue the
impugned order, dated 5.10.2009. Even though the pollution caused to the tank in
question may not be directly due to the petitioner, the impugned order had to be
passed by the third respondent, in public interest. In such circumstances, the
contentions raised on behalf of the petitioner, cannot be countenanced. Hence,
the writ petition stands dismissed. No costs. However, it is made clear that it
would be open to the petitioner to make a request to the concerned authorities
for the refund of the amount paid by him for the fishing rights, due to the
cancellation of the lease granted in his favour. Consequently, connected M.P is
closed.
csh
To
1. The District Collector,
Theni District, Theni.
2.The Assistant Executive Engineer,
PWD/Water Resources,
Manjalar Dam, Theni District.
3.The Assistant Director of Fisheries,
Inland Fisheries, Vaigai Dam,
Theni District.