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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
R. RAGHUNANDAN RAO, J.
Kaluvoy Fishermen Cooperative Society & Ors. - Petitioners
Versus
The State of Andhra Pradesh, rep. by its Principal Secretary to Animal Husbandry, Diary Development and Fisheries Department & Ors. - Respondents
Writ Petition Nos. 13865, 14118, 14304, 14532, 16601, 16818, 17382 & 17808 of 2020
Decided On : 23-02-2021
Panchayat Raj Act – Section 56 – Constitution of India, 1950 – Articles 266, 162 – Fishing Rights – Additional Advocate General appearing for the respondents would place reliance on the audited statements of account of various fishermen cooperative societies filed along with the Counter affidavit. – These audited statements show that the fishemen societies are all running in losses though fishing rights were being given on highly concessional basis to these societies. – He submits that these accounts would go to show that none of the benefits were reaching the members of the society. – He would submit that under the guise of representing the fishermen of the area, some members were cornering all the benefits and showing losses in these societies because of which no benefit reached any of the members of the fishermen cooperative society. – He would submit that the claim of the petitioners that taking away fishing rights from these societies would cause losses to the members of the society is incorrect.
Finding of court: As it is the admitted case on both sides that there is no legislation covering this issue, G.O.Ms.No.776 has to be deemed to have been issued by the State, exercising its executive power under Article 162 of the Constitution of India. – The decision of the Government is normally issued as G.O.Ms., (Government Order Manuscript) or G.O.Rt., (Government Order Routine). – These G.Os., are issued in the name of the Governor as all executive action of the Government, under Article 266 of the Constitution, has to be done in the name of the Governor. – A memo is a communication of the Government either calling for information or conveying information but would not amount to a decision of the Government and is signed by the communicating authority. – In the hierarchy of such executive legislation, a Memo of the Government cannot supersede or depart from the provisions of any earlier Government Order. – In these circumstances, Memo will have to give way and has to be set aside. – G.O.Rt.No.144 would also have to be treated as issued under Article 162 of the Constitution of India. While issuing this G.O., the Government has not superseded G.O.Ms. No.776. G.O.Rt.No.144 operates only in the District of Nellore while the operation of G.O.Ms.No.776 is over the entire state, as such, G.O.Rt.No.144 would have to be treated as a modification of G.O.Ms.No.776. – It is always open to the Government to modify or replace an existing Government order. – It could be by way of specific explicit modification or supersession or by way of an implied modification or supersession. – In the present case G.O.Rt.No.144 makes a deliberate departure from the earlier policy set out in G.O.Ms.No.776 and would have to be treated as an implicit modification of G.O.Ms.No.776 as far as SPSR Nellore District is concerned. – It would be within the power of the Government to modify G.O.Ms.No.776 by issue of G.O.Rt.No.144. – Justification being given for attempting a new experiment is the stand of the Government that the earlier system was not benefitting the target group of fishermen and the natural resources of the State were being exploited in a non transparent manner and to the detriment of the State. – Though this contention has been vehemently denied by the learned Counsel for the Petitioners, it cannot be said that the Government cannot evolve new policy. – It would be trite to say that in such matters the Government has to be given a play in the joints and the courts cannot impose a strait jacket on the policy making power of the Government. – No violation of any provision of law has been shown to justify any interference from this court.
Result: Order Accordingly
ORDER :
Heard Smt. M. Vidyavathi, Sri G. Vijaya Babu and Sri V. Sivaprasada Reddy for the petitioners and learned Additional Advocate General for the respondents.
2. As the issues raised in all the writ petitions are one and the same, all the writ petitions are being disposed of by this common order.
3. Prior to 1987, fishing rights in all tanks and water sources were being disposed of in the following order of precedence: 1) Cooperative societies of fishermen or harijans engaged in fishing on the basis of average five years rental or departmental development proceeds as the case may be; 2) Panchayat boards or local bodies; and 3) Private individuals on the basis of bids at public auctions. The Government after examining the existing policy of allotment of fishing rights and after taking into account the views of the fishermen organisations and associations as well as the representatives of the public, had issued G.O.Ms.No.776 dated 31.12.1990, setting out the procedure for allotment of fishing rights in various tanks and water bodies. The water bodies, for the purposes of grant of fishing rights were categorised as Water bodies vested with Gram Panchayats, Major reservoirs, medium and minor reservoirs and lakes, river courses, canals and swamps. The fishing rights in Major reservoirs, was to be by way of leases granted under auction basis. In all other water bodies, fishing rights were to be given to Fishermen societies on a preferential basis. In the absence of such fishermen societies or refusal of such societies, fishing rights were to be offered to the Gram Panchayat/municipality failing which fishing rights were to be auctioned. The Government stipulated that the lease period would be for a period of three years with an option of extension of two more years, if the lessee was a fishermen cooperative society.
4. It may also be noted that G.O.Ms.No.343, Panchayat Raj Department, dated 10.04.1998 also provided for the method in which the fishing rights in the tanks controlled by the Gram Panchayats, were to be given out. The Government had also issued G.O.Rt.No.282, dated 26.11.2019 granting leasehold rights for the period 2019 to 2022 to various fishermen societies.
5. While the matters stood thus, the Government issued Memo No.1085942/FISH/A3/2020, dated 21.07.2020. In this Memo it was stated that the Government had accorded permission to the Commissioner of Fisheries Andhra Pradesh to take up a pilot project, in SPSR Nellore District, by conducting public/open auction in selected public water bodies instead of entrusting fishing rights to the fishermen cooperative societies. This new system is said to have been initiated for development of fishery wealth at optimum level and realisation of more revenue to the Government in SPSR Nellore District. A list of 27 water bodies where such auction is to take place was attached to the Memo. The said Memo has been challenged in W.P.Nos.13865 of 2020, 14118 of 2020, 14304 of 2020 and 14532 of 2020. This Court by way of interim orders had granted interim suspension of the said Memo.
6. At that stage, the Government again issued G.O.Rt.No.144, dated 08.09.2020 according permission to the Commissioner of Fisheries, Andhra Pradesh, Vijayawada to take up a pilot project in selected public water bodies by conducting open auction instead of entrustment to the fishermen cooperative societies for development of fishery wealth at optimum level and realisation of more revenue to the Government in SPSR Nellore District. This G.O., was effectively a repetition of Memo dated 21.07.2020 and was to apply to 27 tanks in Nellore District.
7. Some of the fishermen societies, which are operating in Nellore District, have approached this Court by way of the W.P.Nos.16601 of 2020, 16818 of 2020, 17382 of 2020 and 17808 of 2020 challenging G.O.Rt.No.144, dated 08.09.2020.
8. Smt. M. Vidyavathi, learned counsel appearing for some of the petitioners would submit that, as there is no legislation covering the field,
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