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2021 Supreme(Online)(MAD) 43732
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28.10.2021 CORAM THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY W.P.(MD).Nos.13591 and 15088 of 2021 and W.M.P.(MD).Nos.12010, 12450, 10527, 10529, 10531 of 2021 W.P.(MD).No.15088 of 2021 K.Muthukannan ... Petitioner Vs.
1.The District Collector, Theni District, Theni.
2.The Revenue Divisional Officer, Uthamapalayam, Theni.
3.The Joint Director of Fisheries, Fisheries and Fisheries Welfare Department, Theni Vaigai Dam, Theni District.
4.FMD-10 Bodi Fisherman Co-operative Society, No.71-C, Solai Chokkalingam Nagar, Kaupasamy Kovil Street, Bodinayakkanur, Theni District. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, by directing the third and fourth respondents to grant tender for fishing rights of Meenathicipuram Kanmai, Theni District in the petitioner's favor by accepting the balance bid amount of Rs.26,25,000/- and consequently direct the respondents not to indulge in any type of fishing activities or other activities in the meantime by considering the petitioner's representation dated 19.08.2021 and pass orders on merits and in accordance with law within the period that may be stipulated by this Court.
For Petitioner : M/s.K.Safar Badhusha For R-1 to R-4 : Mr.Veerakathiravan Additional Advocate General Assisted by Mr.P.Subbaraj, Counsel for State.
W.P.(MD).No.13591 of 2021 FMD – 10, Bodi Fishermen Cooperative Society, Represented by its President, Tamilarasan Vs
1.The Director of Fisheries, Fisheries Department, Saidapet, Chennai.
2.The Deputy Director of Fisheries, O/o.Deputy Director of Fisheries, Madurai, Madurai District.
3.The Assistant Director of Fisheries, Theni Zone, Vaigaidam, Aundipatty, Theni District.
4.Muthukannan Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, to call for the records pertaining to Tender Cum Public Auction Notification dated 09.07.2021 issued by the third respondent in Dinamani Newspaper in respect of leasing out of fishing rights in Meenakshiamman Tank at Bodinayakanur Taluk, Theni District and quash the same as illegal and consequently direct the respondents 1 to 3 to grant the lease of fishing right in the above said tank to the petitioner's society namely FMD-10, Bodi Fishermen Cooperative Society in the light of G.O.Ms.No.201 dated 19.10.2017 and G.O.Ms.No.15 dated 29.01.2020 issued by the Animal Husbandry, Dairying and Fisheries Department and also complying with terms of the order dated 03.02.2021 in W.A.(MD).No.1251 of
2020 and W.A.(MD).No.923 of 2020 rendered by this Court.
For Petitioner : Mr.K.S.Viswanathan For M/s.A.Mithun Chakravarthi For R-1 to R-3 : Mr.Veerakathiravan Additional Advocate General Assisted by Mr.P.Subbaraj, Counsel for State.
For R-4 : Mr.Safar Badhusha
COMMON ORDER
Both these Writ Petitions pertain to an auction of fishing rights in respect of the Meenakshiamman Tank (the Tank) at Bodinayakanur Taluk, Theni District, which is a large tank admeasuring about 182.5 hectares.
2. The petitioner in W.P.(MD).No.13591 of 2021 is a fishermen's co-operative society (the Society), whereas the petitioner in W.P.(MD).No. 15088 of 2021 is the successful bidder at a tender-cum-auction conducted for the grant of fishing rights. In the year 2018-2019, the fishing rights in the Tank were granted at Rs.40,00,000. Thereafter, the Society was granted a licence in respect of the Tank for three years, 2019-2020 to 2021-2022, at a licence fee 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 was challenged by the petitioner therein, S.T.Mani, by filing W.P. (MD) No.5485 of 2020 on the ground that the fixation of the upset price was not done by taking into account the productivity of the Tank, water retentivity, cost of stocking and other factors in terms of G.O.Ms. No.201 dated 19.10.2017 of the Animal Husbandry, Dairying and Fisheries (FS-6) Department of the Government of Tamil Nadu (G.O.Ms.601). The said petitioner was willing to pay a sum of Rs.40 lakhs for the licence for fishing rights. By order dated 31.08.2020, W.P. (MD) No.5485 of 2020 was disposed of by directing the Secretary of Government, Fisheries Department to issue a tender notification and call for offers. The amount tendered by the highest bidder was directed to be offered to the Society. If the Society agrees to take the licence at such price, it should be granted; otherwise, it should go to the highest bidder. This order was challenged in W.A.(MD).No.1251 of 2020 and W.A. (MD).No.923 of 2020 by the official respondents and Society, respectively. The said Writ Appeals were disposed of by judgment dated 03.02.2021. By such judgment, the Court concluded that the upset price fixed by the Government was very low and that State largesse cannot be handed over on a platter by ignoring the financial implications. Consequently, the official respondents were directed to re-do the exercise. The State relies upon paragraph 10 of the said judgment which specifies a methodology to be followed in such regard. On the other hand, the Society relies upon paragraphs 9 and 14 of the judgment. On such basis, the Society contends that the State was required to fix the upset price and offer the same to the Society. According to the Society, it is only with regard to subsequent years that the methodology specified in paragraph 10 would be applicable.
3. By relying on paragraph 10 of the judgment of the Division Bench, the State proceeded to conduct a tender-cum-auction. It appears that such tender-cum-auction was conducted three times unsuccessfully inasmuch as licence was not granted on such basis to the highest bidder in such auctions. The precise details of such auctions are not on record. In any case, the focus of this lis is the fourth tender-cum-auction (the Auction), which was held pursuant to a tender-cum-auction notice dated 09.07.2021 (the Auction Notice). A reserve price of Rs.40,00,000 was fixed and each bidder was required to deposit a sum of Rs.20,00,000 as an earnest money deposit. The petitioner in W.P. (MD).No.15088 of 2021 was the successful bidder at the Auction for a price of Rs.52,50,000/- (Rupees Fifty Two Lakhs and Fifty Thousand only). In accordance with the terms and conditions of the Auction, about 50% of the bid amount was remitted by the highest bidder.
4. In the above facts and circumstances, the Society assails the Auction Notice. The main basis on which such notice is challenged is G.O. (Ms).No.201, Animal Husbandry, Dairying and Fisheries Department dated 19.10.2017. The petitioner relies upon the priority clause in the said Government Order. In terms thereof, it is contended that fishermen's societies, such as the Society, should be given priority for taking lease o
