BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19/11/2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.(MD) No.12798 of 2010 and M.P.(MD) Nos.1 and 2 of 2010 K.K.A.Somasundaram .. Petitioner Versus 1.The Secretary, Government of Tamilnadu, Fisheries Department, Fort St. George, Chennai-600 009. 2.Assistant Director of Fisheries, Internal Fisheries Department, Vaigai Dam, Theni District. .. Respondents Prayer Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus calling for the records relating with the auction notice, dated 28.9.2010, in Na.Ka.No.955/A/2010, issued by the second respondent with respect of fishery lease in Periyakulam Periya Kanmoi and quash the same as it is arbitrary and illegal and in consequence forbearing the second respondent from interfering with petitioner's right of fishery lease in Periyakulam Periya Kanmoi upto the period of June 2011. !For Petitioner ... Mr.R.Suriya Narayanan ^For Respondents ... Mr.K.M.Vijaya Kumar Special Government Pleader :ORDER
The writ petition had been filed challenging the auction notice, dated
28.9.2010, issued by the second respondent in Na.Ka.No.955/A/2010, relating to
the grant of lease for fishing rights, in Periyakulam Periya Kanmoi, in Theni
District.
2. The petitioner has stated that he was the successful bidder in the public
auction conducted by the second respondent, on 28.12.2007, pursuant to the
auction notification, dated 14.9.2007, for the grant of lease for fishing in
Periyakulam Periya Kanmoi, for a period of three years, from June, 2007 to June,
2010. Further, the order granting the lease had been issued in favour of the
petitioner only on 25.1.2008. Only thereafter, the petitioner could let in fish
seedlings in the Kanmoi to harvest them at a later point of time. However,
during the years 2008 to 2010, the Kanmoi did not fill up due to the failure of
the monsoon. In such circumstances, the petitioner could not enjoy the fishing
rights in the Kanmoi.
3. While so, the second respondent had issued a notice, on 21.6.2010, stating
that the period of lease granted in favour of the petitioner had come to an end
and that he would not be entitled to continue the activity of fishing in the
Kanmoi, beyond the month of July, 2010. Thereafter, the petitioner had sent a
detailed representation to the second respondent, on 5.8.2010, requesting for
extension of lease, for a further period of three years, from the year, 2010, on
payment of an additional amount of 10% more than the lease amount paid by the
petitioner for the earlier lease period.
4. Since, the representation of the petitioner, dated 5.8.2010, had not been
disposed of by the second respondent, taking into account the relevant
government orders, he had filed a writ petition before this Court, in
W.P.No.12603 of 2010, praying for a writ of mandamus to direct the second
respondent to consider the representation, dated 5.8.2010, and pass appropriate
orders thereon. This Court, by its order, dated 7.10.2010, had directed the
second respondent to dispose of the representation of the petitioner, dated
5.8.2010, within a period of eight weeks. However, the second respondent,
instead of disposing of the representation of the petitioner, dated 5.8.2010, as
directed by this Court, had issued an auction notice, dated 28.9.2010, stating
that the auction would be conducted, on 14.10.2010, in respect of the fishing
rights in Periyakulam Periya Kanmoi, for a period of three years, from June,
2010 to June, 2013. In such circumstances, the petitioner has preferred the
present writ petition before this Court, under Article 226 of the Constitution
of India.
5. The learned counsel appearing on behalf of the petitioner had submitted
that the second respondent should conduct the auction for granting of fishing
rights in respect of Periyakulam Periya Kanmoi, as the lease granted in favour
of the petitioner is due to expire only in the month of June, 2011. He had also
submitted that the respondents ought to have extended the period of lease for a
further period, till the month of June, 2011, as the order granting the lease in
favour of the petitioner had been passed, only on 25.1.2008, even though the
lease period had commenced from the month of June, 2007. It had also been
submitted that the second respondent had failed to see that only during the
month of June of each year the fish seedlings could be reared in the Kanmoi in
question. Further, it is inappropriate for the second respondent to conduct the
auction, without disposing of the representation, dated 5.8.2010, as directed by
this Court, by its order, made in W.P.No.12603 of 2010.
6. The learned counsel appearing on behalf of the petitioner had relied on
a decision of a Division Bench of this Court, made in K.Subbiah Pandian and
others V. The Assistant Director of Panchayat (2009 Writ L.R. 984), to
strengthen his claim that the lease already granted in favour of the petitioner
had to be extended upto the month of June, 2011, as the order granting the said
lease had been passed by the second respondent, only on 25.1.2008, even though
the lease period had commenced from the month of June, 2007.
7. The learned counsel appearing on behalf of the respondents had
submitted that the petitioner had participated in the auction held on
28.12.2007, pursuant to the auction notification, dated 14.9.2007. It had been
clearly mentioned that the lease period would be for a period of three years
from June, 2007 to June, 2010. There is no government order applicable to the
present case giving the power to the respondents to extend the period of lease,
for a further period of three years, on payment of an additional 10% more than
the amount paid by the lessee for the past lease period. When the petitioner had
participated in the said auction, without any protest, it is not open to him to
turn back and to claim that the respondents should extend the lease, upto the
month of June, 2011.
8. It has also been stated that in the lease agreement entered into
between the petitioner and the respondents, it has been made clear that the
period of lease would be only for a period of three years, from June, 2007 to
June, 2010. While so, it is not open to the petitioner to claim, as a matter of
right, the extension of lease in his favour, for a further period of three
years. It has also been stated that the petitioner, by his representation, dated
5.8.2010, had only requested for the grant of lease in his favour, for a further
period of three years, from June, 2010 to June, 2013, on his payment of an
additional sum of 10% more than the lease amount paid by him during the previous
lease period. The request made by the petitioner cannot be granted as there is
no government order, rule or regulation, authorising the respondents to extend
the period of lease, as prayed for by the petitioner.
9. In view of the submissions made by the learned counsel appearing on
behalf of the petitioner, as well as the respondents, this Court is of the
considered view that the petitioner has not shown sufficient cause or reason to
grant the reliefs, as prayed for by the petitioner, in the present writ
petition. From the records available before this Court, it is clear that the
period of lease granted in favour of the petitioner for fishing in the
Periyakulam Periya Kanmoi was for the period of three years, from June, 2007 to
June, 2010. It cannot be said that the period of lease had commenced, only on
25.1.2008. It is clearly stated in the lease agreement signed by the petitioner
that the lease period is from June, 2007 to June, 2010. While so it is not open
to the petitioner to claim that the period of lease would commence, only from
25.1.2008, which is the date of the order granting the lease in favour of the
petitioner.
10. The petitioner has not been in a position to show the relevant government
orders to substantiate his claim that he would be entitled for the grant of
lease in his favour, for fishing in Periyakulam Periya Kanmoi, for a further
period of three years, on payment of 10% more than the lease amount paid by the
petitioner during the earlier lease period. It is not open to the petitioner to
demand the grant of lease in his favour, for a further period of three years, on
the basis that he could not rear and harvest fishes during his earlier lease
period, due to the failure of monsoon. Such reasons stated by the petitioner
would not be sufficient to persuade this Court to direct the respondents to
grant the lease, in favour of the petitioner, for a further period of three
years, as prayed for by him. The petitioner has not been in a position to show
that the facts and circumstances of the present case are similar to those, which
had arisen for the consideration of the Division Bench of this Court, in the
decision cited supra. As such the writ petition is devoid of merits. Hence, it
is dismissed. No costs. Consequently, connected miscellaneous petitions are
closed.
csh
To
1.The Secretary,
Government of Tamilnadu,
Fisheries Department,
Fort St. George, Chennai-600 009.
2.Assistant Director of Fisheries,
Internal Fisheries Department,
Vaigai Dam, Theni District.