Allowed

S.T.Mani v. the Director of Fisheries

Madras HC31 Aug 2020WP(MD)/5485/2020

Case brief

AI extract

What is this about?

The Madurai Bench addressed a writ petition challenging a license granted for harvesting fish rights at an upset price deemed arbitrary and loss-making. The Court held that the price fixation violated statutory norms regarding revenue and local fishermen's interests. It directed the Department to issue a fresh tender, allowing the current licensee only if they match the highest bid, emphasizing th

What did the court decide?

Issued a notice to the Secretary, Government Fisheries Department to issue a fresh tender for fishing rights, requiring the highest bidder to deposit the amount immediately. The license to the fourth

S.T.Mani Vs the Director of Fisheries — Public Procurement and Tenders | Madras HC (2020)

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W.P.(MD)No.5485 of 2020

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 31.08.2020

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CORAM

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THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

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W.P.(MD)No.5485 of 2020 and W.M.P.(MD)Nos.4787, 4788 and 4789 of 2020

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S.T.Mani ... Petitioner

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Vs.

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1.The Director of Fisheries,

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Fisheries Department, Chennai.

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2.The Deputy Director of Fisheries

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Office of the Deputy Director of Fisheries(Zonal), Madurai, Madurai District.

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3.The Assistant Director of Fisheries, Theni, Vaigai Dam, Theni District.

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4.FMD-10, Bodi Fisherman Co-operative Society, Rep. by its President,

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A.Sanakar, No.71C, Solai Chokkalingam Nagar, Karupasamy Kovil Street,

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Bodinayakanur-625 513. ... Respondents

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Prayer: Writ petition is filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order Na.Ka.No.605/A/2019, dated 03.03.2020 on the file of the second respondent and quash the same as illegal and consequently, direct the respondents 1 to 3 to conduct the Tender for the Bodi Meenakshiamman Kanmoi, Ammapatti Village, Bodi Taluk, Theni District in light of G.O.Ms.No.201, Animal Husbandry Dairying and Fisheries (FS-6) Department, dated 19.10.2017 within the time frame stipulated by this Court.

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For Petitioner : Mr.T.Lajapathi Roy For R1 to R3 : Mr.S.Angappan Government Advocate For R4 : Mr.M.Senthil for Mr.V.Malaiyendiran * * *

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W.P.(MD)No.5485 of 2020

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O R D E R

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Heard the learned counsel appearing for the writ petitioner, the learned Government Advocate appearing for the respondents 1 to 3 and the learned counsel appearing for the fourth respondent.

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2.The third respondent herein vide the impugned order bearing Na.Ka.No.605/A/2019, dated 03.03.2020 granted license in favour of the fourth respondent herein to harvest fish in Bodi Meenakshiamman Kanmoi, Ammapatti Village, Bodi Taluk, Theni District for a period of three years, namely, 2019-2020, 2020-2021 and 2021-2022. The fourth respondent has been directed to pay a sum of Rs.5,87,520/for the first year, Rs.6,46,272/- for the second year and Rs.7,10,899/- for the third year. This order has been put to challenge in this writ petition.

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3.The primary ground urged by the petitioner's counsel is that while G.O.Ms.No.201, dated 19.10.2017 issued by the Animal Husbandry, Dairying and Fisheries (FS-6) Department of the Government of Tamil Nadu states that the Local Fishermen Cooperative Society shall be given priority for taking lease of fishing rights, the upset price should be fixed once in three years for each tank by taking into account the cost of stocking, productivity of the tank, water retentivity and other factors. This should be done by the Assistant Director of Fisheries subject to approval by Regional Joint/Deputy Director of Fisheries and Commissioner of Fisheries. According to the petitioner, the price fixation has not been done by taking into account these aspects. While the purpose and object of the G.O is to encourage participation by the local fishermen, interest of revenue was not to be lost sight of.

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4.The petitioner's counsel placed reliance on the order dated 05.04.2019 in WA(MD)Nos.1503, 1516 and 1590 of 2018. The subject matter of the writ appeals was in respect of fishing rights in Bodi Meenakshiamman Tank. The license period was for three years (2016 to 2019). One Thanga Madhavan was the highest bidder. He had offered Rs.24.00 lakhs per annum. It was challenged and Thanga Madhavan had to pay a sum of Rs.40.00 lakhs as lease amount for 2017-18. This shows the level of contest which Meenakshiamman Tank had generated. The contention of the petitioner's counsel is that even if one assumes that the same position prevails, the amount that can be earned by the department would be not less than One crore and thirty lakhs of rupees. His categorical statement is that by issuing the impugned license in favour of the fourth respondent for a paltry sum of Rs.5,87,520/- for the first year, Rs.6,46,272/- for the second year and Rs.7,10,899/- for the third year, the officials have caused loss to the tune of rupees One crore and ten lakhs to the Government.

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W.P.(MD)No.5485 of 2020

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5.The Hon'ble Supreme Court in Ramana Dayaram Shetty vs The International Airport (1979 AIR SC 1628 ), had pointed out that a new form of property consisting of government largesse was emerging in the social welfare State and that it was necessary to develop new forms of protection in that regard. The court held that the discretion of the government is not unlimited in that the government cannot give or withhold largesse in its arbitrary discretion or at its sweet will. The government action must be based on standards that are not arbitrary or irrational.

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6.I therefore expressed my shock as to how the upset price was fixed at Rs.4,89,600/-. I was then informed that the Director of Fisheries had issued Express Memorandum bearing Rc No.37383/F4/2012 dated 29.06.2019 in this regard. I went through its contents. It does not contain any reason for fixing the upset price for the Meenakshiamman tank so low. Even if the files may contain some justification, they are obviously false. This is because the petitioner is ready to pay a sum of Rs.40.00 lakhs towards annual license fees. The Director of Fisheries could not have been oblivious of the order dated 05.04.2019 passed by the Hon'ble Division Bench in the aforesaid writ appeals. The Commissioner of Fisheries was very much a party to the said proceedings. G.O (Ms) No.201, dated 19.10.2017 has clearly catalogued the factors that should be taken into account before fixing the upset price. I have no doubt in my mind that the Director of Fisheries has thrown all the norms to wind and arbitrarily fixed it. He has been unmindful of the revenue implications.

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7.I, therefore, direct the Secretary to Government, Fisheries Department to take up the issue and issue a tender notification calling for offers in this regard. The highest bidder/tenderer shall deposit the amount immediately. Only if the fourth respondent Society matches the same, they can continue to be the licensee. Otherwise, the license issued to the fourth respondent shall stand cancelled and the license will be issued to the highest tenderer/bidder.

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8.I have had the occasion to deal with quite a few writ petitions pertaining to fishing rights. The Public Works Department, the Fisheries Department and the local bodies own the water bodies. They auction the fishing rights to the highest bidders. It is on that basis I have given a disposal to this writ petition. But a social media post attributed to the Sahitya Akademi awardee Cho.Dharman made me see beyond the licensor/licensee binary. There are other stakeholders who are more important-the ayacutdars, the local villagers, the cattle and the birds. Let me quote the eminent writer verbatim :

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W.P.(MD)No.5485 of 2020

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“New;W cr;rp kjpak;. Rl;nlhpf;Fk; nta;apy;. fz;kha;f; fiu kuj;jbapy; cl;fhh;e;J J}z;by; Nghl;Lf; nfhz;bUe;Njd;. me;j fz;khapd; Fj;jifjhuh; vd;id kl;LNk J}z;by; Nghl mDkjpj;jpUg;gjhy; ehd; kl;LNk vg;NghJk; jdpj;jpUg;Ngd;. rpy Neuk; gakhff; $l ,Uf;Fk;. ,e;j jdpik jtj;jpw;fhfNt ehd; tpUk;gp Ngha; J}z;by; NghLfpNwd;. jpBnud;W Msutk; Nfl;fTk; Vwpl;Lg; ghu;j;jhy; Neuhf vd; jiyf;F Nky; fiuapy; jplfhj;jpukhd xU Mwb kD\h;. ifapy; e Pz ;l fk;G. fOj;jpy; njhq;Fk; e Pz ;l Jz;L. kpfTk; gt;akhf tzf;fk; itj;J gzpe;J Fk;gpl;lhh;. J}z;biy thfiuapy; Cd;wp tpl;L fiuNawpNdd;. “Iah vd; Ngh; fhspag;gf; Nfhdhu;. fpil khLfs; Nka;g;gth;fs; ” vd;W nrhy;yp tpl;L J}uj;jpy; NkAk; khLfisf; fhl;bdhh;. “rupa;ah ,g;g cq;fSf;F vd;d NtZk; ” “,e;j khLfSf;F jz;z P u ; Fbf;f e Pq ;f mDkjpf;fZk; Iah” vd;whu;. mtu; ,g;gbf; Nfl;lJk; vdf;F Mr;rhpak;. mth; Kfj;ijNa cw;Wg; ghu;j;Njd;. mtu; nrhd;dhu;. “Iah ehq;f fKjpapypUe;J tu;Nuhk;. mg;gpbNa Nkw;Fj;njhlu;r;rp kiyabthuk; tiug; Ngha; jpUk;g Ch; Nghf MW khrkhFk;. vy;yhf; fz;kha;fisAk; muR Fj;jiff;F tpl;Ur;R. Fj;jifjhuh;fs; khLfis jz;z P h ; Fbf;f mDkjpg;gjpy;iy. vq;fis mbj;J tpul;Lfpwhh;fs;. khLfis fw;fshy; vwpe;J tpul;Lfpwhh;fs; ” vd;W mtu; nrhd;dNghJ vd;dhy; ek;g Kbatpy;iy. ,e;j Fj;jifjhuh; kpfTk; ey;ytu; jhuhskhf jz;z P u ; fhl;Lq;fs; vd;W nrhd;dTld; fiuapypUe;jgbNa xU tprpy; nfhLj;jhu;. vy;yh khLfSk; vq;fisg; ghu;j;J Ntfkhf te;jd. $lNt ,d;ndhUtUk; te;jhu;. nkhj;jk; 270 khLfs;. fhis gR fd;Wf;Fl;bfs;. Mde;jkhf jz;z P u ; Fbj;J e Pr ;rYk; mbj;jd. gy;NtW jfty;fis vd;dplk; gfph;e;J nfhz;lhh; Nfhdhh;. rk;rhhpfspd; gk;Gnrl; fpzWfspy; tha;f;fhypy; khLfs; jz;z P h ; Fbg;gij ,Jtiu ve;j rk;rhhpAk; jLj;jjpy;iy vd;whh;. ngUk;ghyhd fpzWfspy; jz;z P u ; ,y;iy vd;wth; Fsq;fspy; fz;kha;fspy; Fbg;gJkhjphp tha;f;fhypy; Fbg;gJ epiwthf ,Uf;fhJ vd;whh;. epiwaf; fz;kha;fspy; gwitfis k Pd ;gpbf;f tplhky; $Lfl;l tplhky; Fj;jifjhuh;fs; ntbntbj;J tpul;Lfpwhh;fs; vd;W mth; nrhd;d NghJ ehd; nksdpj;Jg; NghNdd;. muR fz;kha;fis Fj;jif vd;w Nghpy; ghf;lhpfshf khw;wp tpl;lJ. yhg Nehf;fpy; tpahghhpahf nray;gLfpwhh;fs; Fj;jifjhuh;fs;.

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Vw;fdNt tUtha;j;Jiw> nghJg;gzpj;Jiw> tdj;Jiw> fdpktsj;Jiw Nghd;wtw;why; fz;fhzpg;G vd;w Nghpy; Ch; kf;fSf;Fk; fz;kha;f;Fkhd cwit ehrg;gLj;jptpl;lJ muR. ,g;NghJ Fj;jifjhuh;fs; gwitfSf;Fk; fhy;eilfSf;Fkhd njhlh;ig Jz;bj;J tpl;lhh;fs;. mg;gbahdhy; ,e;jf; fz;kha;fis Vhpfis CUzpfis njg;gq;fis e Puhtpfis ek; Kd;Ndhh;fs; ahUf;fhf cUthf;fpdhh;fs;. nfhQ;rk; Nahrpj;Jg; ghUq;fs;. khLfs; gw;wpAk; mth;fspd; tho;f;if gw;wpAk; xU FWehty; vOjg; NghfpNwd;.

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irg PhpahtpypUe;J gy;yhapuk; fpNyhk Pl ;lh;fs; gwe;J te;J jkpo;ehl;Lf;F tUfpw xU nfhf;if ,q;Nf $Lfl;b ,dg;ngUf;fk; nra;a tplhkYk; k Pd ; gpbj;J grpahw tplhkYk; ehk; tpul;bdhy; mJ ek;ikg;gw;wp vd;d epidf;Fk;. “ahJk; CNu ahtUk; Nfsph; ” vd;W cyFf;Nf nghJkiw nrhd;d fdpad; G+q;Fd;wd; tho;e;j G+kpah ,J? “thba gapiuf; fz;l Nghnjy;yhk; thbNdd; ” vd;whNu ts;syhu; mth; fhybgl;l kz;zh ,J?. “fhf;if FUtp vq;fs; [hjp” vd;whNd vl;laGuj;J kfhftp ghujp mth; tho;e;j g+kpah ,J? vd;W epidf;Fkh , y;iyah. gl;rp Njh\Kk; jhfj;Jf;F jz;z P h ; fpilf;fhj thapy;yh [ Ptd;fspd; tapw;nwupr;rYk; ,e;j Ml;rpahsh;fis Rl;nlhpf;Fk;. jaT nra;J fz;kha;fis Fj;jiff;F tpl;L fk;ngdpahf;Ftij epWj;Jq;fs;. fz;kha;fSk; e Ph ; epiyfSk; xU ehl;bd; ,uj;j

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W.P.(MD)No.5485 of 2020

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ehsq;fs; vd;gij gFj;jwpT cq;fSf;F nrhy;ytpy;iyah. mg;gbahdhy; e Pq ;fs; NgRfpd;w gFj;jwpTf;F vd;d mh;j;jk;. ”

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9.I earnestly hope that the Government would take note of the sentiments expressed by the writer and re-frame its policy as regards licensing fishing rights. The licensee must be directed to respect the customary rights and traditional practices followed by the Tamil Peoples.

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10.The writ petition stands disposed of as above. No costs. Consequently connected miscellaneous petitions are closed.

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Assistant Registrar(Writs)

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// True Copy //

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/ /2020 Sub Assistant Registrar(CS)

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skm

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Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To

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1.The Director of Fisheries, Fisheries Department, Chennai.

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2.The Deputy Director of Fisheries Office of the Deputy Director of Fisheries, Madurai, Madurai District.

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3.The Assistant Director of Fisheries, Theni, Vaigai Dam, Theni District.

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+1 CC to M/s.T. LAJAPATHI ROY, Advocate ( SR-15502[F] )

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+1 CC to M/s.V. MALAIYENDRAN, Advocate ( SR-15468[F] )

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+1 CC to M/s.GP ( SR-15583[F] dated 01/09/2020 )