A.Rajendran, v. The State Of Tamilnadu,

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATE : 18.06.2019

CORAM:

THE HON'BLE MR.JUSTICE K.RAVICHANDRABAABU and THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY W.A.(MD)No.473 of 2019 and C.M.P.(MD) No.3970 of 2019 Against W.P(MD)No.4153 of 2019 A.Rajendran .. Appellant/ Petitioner Vs.

1)The State of Tamil Nadu, Represented by the Secretary, Department of Fisheries, Secretariat, Fort St George, Chennai - 600 009.

2)The Deputy Director of Fisheries, (Regional), Pechiamman Padithurai, Madurai.

3)The Assistant Director of Fisheries, Inland Fishing, Vaigaidam, Theni District.

4)The Sub Registrar, Theni.

5)The President, TFWI Theni Fishing Inland Cooperative Society, Pallivasal St, Muthuthevanpatti, Theni.

.. Respondents PRAYER: Writ Appeal filed under Clause 15 of Letters Patent Act, against the order passed by the learned Single Judge made in W.P.(MD)No.4153 of 2019, dated 26.03.2019.

Prayer in WP(MD). 4153 of 2019 :

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, calling for the records of the 3rd respondent Na.Ka.No. 1626/A/2018 dated 21.12.2018 and quash the same in so far as it relates to "Kannimar koil Kulam, Veerapandi village, Theni District" and direct the 3rd respondent to conduct fresh auction and till then permit the petitioner to catch the fishes available in the "Kannimar Koil Kulam" within a fixed period.

For Appellant :

Mr.K.P.S.Palanivel Rajan For R1 to R4 :

Mr.V.R.Shanmuganathan For R5 :

Mr.V.Malaiyendran

J U D G M E N T

(The Judgment of the Court was made by SENTHILKUMAR RAMAMOORTHY,J ) This Writ Appeal is filed by the Petitioner in the Writ Petition. By order dated 26.03.2019, the Writ Court disposed of the Writ Petition filed by the Appellant herein and thereby refused to quash the order dated 21. 12. 2018 of the third Respondent herein.

2.The case of the Appellant is that the Writ Court erred in holding that the lease in favour of the fifth Respondent is valid. According to the Appellant, the lease in favour of the Appellant was intended to be for a period of five years, it was not terminated, the Appellant had let its fishlings in the tank concerned and, therefore, the Appellant is protected under Section 51 of the Transfer of Property Act, 1882.

3.On the contrary, the case of the fifth Respondent is that it is entitled to priority in the matter of grant of lease in respect of fishery rights and that, therefore, there is no infirmity in the impugned order of the Writ Court.

4.At the hearing, the learned counsel for the Appellant referred to G.O.Ms.No.332, Animal Husbandry and Fisheries Department, to contend that the said Government Order provides that a fishery lease shall be for a period of five years. Accordingly, it was submitted that the Appellant was entitled to proceed on the assumption that the lease would be extended at least for a period of five years. It was further submitted that the Appellant let fishlings in the tank in view of the aforesaid reasonable expectation. The learned counsel also submitted that the auction was not conducted and the orders of the Writ Court were not complied with.

5. In response, the learned counsel for the fifth Respondent submitted that G.O. Ms. No. 332 was replaced by G.O.Ms. No. 33, which provides for a three-year lease. In this regard, it was further submitted that admittedly the lease in favour of the Appellant was granted under Lease Deed dated 09.12.2014 for the period extending from July 2014 to June 2017 and this period ended prior to the award of lease to the fifth Respondent. With regard to the award of lease to the fifth Respondent, G.O. Ms. No. 201 dated 19.10.2017 was relied upon, which provides for leasing of fishery rights on public tender system only if the Fishermen Cooperative Society concerned does not come forward to take the lease of

fishery rights.

6.We carefully considered the pleadings, documents and oral submissions of the parties. As correctly contended by the learned counsel for the fifth Respondent, the lease in favour of the Appellant admittedly expired in June 2017. Moreover, clause vi of G.O.Ms. No. 201 reads as follows:

" After giving fair opportunities, namely, by sending the lease notice by RPAD, by affixing a copy of the notice in the registered office of the society in the presence of two independent witnesses and by public announcement, if the concerned Fishermen Cooperative Society does not come forward for taking lease of the fishery rights of a particular tank, the Assistant Director of Fisheries concerned shall lease out the fishery rights to the private parties by following the public tender system." 7.In this case, after floating the tender on 14.12.2018, the third Respondent, by impugned proceedings dated 21.12.2018, expressly referred to the above cited Government Order wherein priority is to be given to the Fishermen Cooperative Society.

On that basis, the fifth Respondent was called upon to pay the lease rent specified in the table of the said communication and also the security deposit. After carefully considering the rival submissions, the Writ Court held that the lease in favour of the Appellant had admittedly expired in June 2017 and, therefore, the Appellant should not have let fishlings in the tank. Nevertheless, in order to ensure that the fifth Respondent does not unjustly enrich itself, compensation of Rs.1,10,000 was ordered to be paid to the Appellant. The contention of the learned counsel for the appellant that the appellant is entitled to the benefit of Section 51 of the Transfer of Property Act is not tenable because this is an expired lease of fishery rights. Nevertheless, the payment of compensation addresses this issue in substance.

Accordingly, we find that the impugned order does not suffer from any infirmity and is based on the relevant Government Orders and on the basis that the lease in favour of the Appellant had admittedly expired. Accordingly, this writ appeal is liable to be and is hereby dismissed. No costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS-II) // True Copy // Sub Assistant Registrar(CS) sts

To 1.The Secretary, Department of Fisheries, Secretariat, Fort St George, Chennai - 600 009.

2.The Deputy Director of Fisheries, (Regional), Pechiamman Padithurai, Madurai.

3.The Assistant Director of Fisheries, Inland Fishing, Vaigaidam, Theni District.

4.The Sub Registrar, Theni.

5.The President, TFWI Theni Fishing Inland Cooperative Society, Pallivasal St, Muthuthevanpatti, Theni.

+1CC TO MR.V.MALAIYENDRAN, Advocate Sr. No.69502 +1CC TO MR.K.P.S.PALANIVELRAJAN , Advocate Sr. No.70099 +1CC TO THE SPECIAL GOVERNMENT PLEADER SR.No. 69783 W.A.(MD)No.473 of 2019 and C.M.P.(MD) No.3970 of 2019 Dated: 18.06.2019 KMK(CO) TR (05.07.2019) 4P 9C