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Papanasam Fishermen Co-op. Society Ltd. and anr. Vs. the Collector of Thanjavur and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberWrit Appeal Nos. 339 and 340 of 1973
Judge
Reported inAIR1975Mad81
ActsConstitution of India - Article 226; ;Fisheries Act, 1897 - Sections 6
AppellantPapanasam Fishermen Co-op. Society Ltd. and anr.
RespondentThe Collector of Thanjavur and ors.
Appellant AdvocateN. Ganapathy and ;V.B. Jayapandian, Advs.
Respondent AdvocateGovt. Pleader and ;B. Kumar, Adv.
DispositionAppeals dismissed
Cases ReferredD.F.O. South Kheri v. Ramsanchi.
Excerpt:
.....the rules framed therein. his authority in so acting is traceable to the statute and, therefore, statutory authority. if, therefore, follows that when the authority is controlled by the provisions of the act and rules made thereunder, even the terms and conditions in the lease would be traceable to the statutory power. it would, therefore, not be correct to assume that the appellant's fishing rights under the grant by the collector and subject to its terms have their origin merely to the contractual relationship. where the action of a public authority invested with statutory powers is challenged, a writ petition is maintainable, even if the right to relief arises out of an alleged breach of contract. it makes no difference that neither the orders of the collector at different stages..........has for now, is-"such rules may also prohibit all fishing in any specified water except under a lease or licence granted by government and in accordance with such conditions as may be specified in such lease or licence."in exercise of this rule-making power and in terms thereof, the state government made rules called the tamil nadu inland fisheries (lease and licence) rules. 1972. rule 2 deals with prohibition of fishing without lease or licence in waters under control of fisheries department. the rule says that no person shall take any fish from the waters specified in annexure i except under a lease or licence granted by the government or by such authority as may be authorised by them in the form and in accordance with the conditions specified in the appendix to annexure i of these.....
Judgment:
1. Ismail J. dismissed two writ petitions, out of which the appeals arise, on the ground that they were not maintainable, since the rights of the petitioners, who are appellants, were traceable to the contracts entered into between them and the Collector in respect of fishing rights in inland waters in Thanjavur Taluk. Unfortunately, the learned Judge's attention was not drawn to the fact that the Collector exercised, in granting the licence and entering into the lease in respect of the fishing rights, a statutory authority traceable to the Indian Fisheries Act, 1897, as amended by Madras Act II of 1929 and the rules framed thereunder.

2. Briefly these are the facts: For the year 1972-73, in Thanjavur the Fishermen Co-operative Society held the licence for the fishing rights, the fee therefor being Rs. 58/795. The Society defaulted to pay Rs. 33,085. On 27-8-1973, the Collector of Thanjavur notified the appellant in W. A. 340 of 1973, whether it would make an offer in respect of the right to fish for the year 1973-74. It accordingly made an offer on 7-9-1073, and the grant of a licence followed. The fee offered and accepted was Rs. 64,050, of which one half, according to the stipulation, was deposited by the offerer. On 10-9-1973, a lease was granted and the same was executed on the next day. The appellant claims that, as preliminary to the operation of the fishing rights, it invested a further sum of Rs. 15,000. On 12-10-1973, Government, by its memorandum of that date, directed the Collector to stay the grant to the appellant, which he did on 16-10-1073. Then followed another Memorandum dated 22-10-1973, from the Government directing the Collector to cancel the lease and grant fishing rights to the third respondent-society. The Government, of course, in making the said direction, took caution to say that the Collector might do it after issuing a show cause notice to the appellant. But, in the circumstances, it is obvious that this part of the direction was only a make-belief or a show of complying with the principles of natural justice. A show cause notice was issued to the appellant by the Collector asking it to show cause whether it had any right to enter into a contract to operate fishing rights outside the limits of Thiruthuraipundi taluk. An explanation was submitted by the appellant on 1-11-1973. Four days later, the Collector cancelled the lease. But, in coming to that conclusion, he merely said that the explanation of the appellant was not satisfactory. We may mention that, on 26-10-1073, W. P. 5913 of 1973 was filed to quash the said orders of the Collector referred to earlier. Against cancellation of the lease, W. P. 6101 of 1973 was taken out. It is these petitions that Ismail, J. dismissed as not maintainable.

3. The Indian Fisheries Act, 1897, provides for certain matters relating to fisheries. It contains a definition section. By Section 6, provision is made for protection of fish in selected waters by rules of State Government. Sub-section (1) of Section 6 says that the State Government may make rules for the purposes mentioned in the section and may by notification in the Official Gazette apply all or any of such rules to such waters, not being private waters, as the State Government may specify in the said notification. Sub-section (4), as it originally stood, read:--

"Such rules may also prohibit all fishing in any specified water for a period not exceeding two years."

This sub-section was amended by Madras Act II of 1929 and as amended the subsection, which has for now, is-

"Such rules may also prohibit all fishing in any specified water except under a lease or licence granted by Government and in accordance with such conditions as may be specified in such lease or licence."

In exercise of this rule-making power and in terms thereof, the State Government made rules called the Tamil Nadu Inland Fisheries (Lease and Licence) Rules. 1972. Rule 2 deals with prohibition of fishing without lease or licence in waters under control of Fisheries Department. The rule says that no person shall take any fish from the waters specified in Annexure I except under a lease or licence granted by the Government or by such authority as may be authorised by them in the form and in accordance with the conditions specified in the appendix to Annexure I of these rules which may be suitably modified or amended from time to time as required. Annexure I, by Clause 1, specifies the Cauvery and Coleroon, including the branches of the Cauvery and irrigation channels of the Cauvery and Coleroon rivers in Thanjavur among other districts, as those coming within the scope of Rule 2. It is clear, therefore, that, when the Collector granted the licence to the appellant, he acted in conformity with Section 6 of the Indian Fisheries Act and the rules just mentioned. In other words, his authority in so acting is traceable to the statute and therefore, statutory authority. Once that is the position, it follows that, when the authority is controlled by the provisions of the Act and rules made thereunder, even the terms and conditions in the lease would be traceable to the statutory power. It would, therefore, not be correct to assume that the appellant's fishing rights under the grant by the Collector and subject to its terms have their origin merely to the contractual relationship. We may emphasise that they are traceable as well to the statutory provisions and the rules made thereunder. D.F.O. South Kheri v. Ramsanchi. laid down that, where the action of a public

authority invested with statutory powers is challenged, a writ petition is maintainable, even if the right to relief arises out of an alleged breach of contract. Shah J. (as he then was) who spoke for the Court, observed-

"We are unable to hold that merely because the source of the right which the respondent claims was initially in a contract, for obtaining relief against any arbitrary and unlawful action on the part of a public authority he must resort to a suit and not to a petition by way of a writ. In view of the judgment of this court in K. N. Guruswami's case, , there can be no doubt

that the petition was maintainable, even if the right to relief arose out of an alleged breach of contract where the action challenged was of a public authority invested with statutory power."

That clearly is the position in these appeals, where the Collector was undoubtedly acting pursuant to a statutory power, namely, the Indian Fisheries Act and the rules made thereunder. It makes no difference that neither the orders of the Collector at different stages nor the terms of the lease made reference to the statutory power. Once it is shown that the statutory power exists, the non-mention of it on the occasion of its exercise will not derogate from the fact that the authority acted in exercise of such statutory power.

4. Mr. V.P. Roman relied on the proviso to Rule 2 of the Tamil Nadu Inland Fisheries (Lease and Licence) Rules, 1972, and contended that, if the lease was entered into on a direction from the fisheries department, the rule would have no application. That is not the effect of the proviso. Its effect as we understand, is that it takes out of the scope of the rule a case of departmental fishing or fishing by the department itself. The proviso has no other effect. These are cases to which Rule 2 has clear application. We hold, therefore, that the writ petitions were maintainable.

5. We then pass on to a consideration of the impugned orders of the Collector. There are two matters which immediately arise for consideration. One is the direction of the Government to the Collector to cancel the lease. This obviously was irregular and the Government ought not to have issued such instruction to the Collector. The power to cancel was with the Collector. The fact that the Government while making the direction asked the Collector to issue a show cause notice to the appellant, would only be paying lip serivce to the requirement of the principles of natural justice, for the Government's direction went further that the Collector, after cancellation of the licence of the appellant, should grant it to the third respondent. In the circumstances, the Collector would be in a very embarrassing position. The Collector's order merely said that the elaborate explanation of the appellant was unsatisfactory. This is not surprising. It is obvious that that was not compliance with the requirement of the principles of natural justice. We do not agree with Mr. V, P. Raman that, because a show cause notice was served on the appellant, the latter submitted an explanation, and the same was considered by the Collector, there was compliance with the principles of natural justice. The compliance should be a substantial one that is to say, it should be not merely in form: the opportunity given must be complete, reasonable and adequate which includes also that, when an explanation is submitted by the person who was asked to show cause, the authority concerned should apply its mind to the explanation and not merely say that it is unsatisfactory. Also, once the orders of the Collector are subject to a review by this court under Article 223 of the Constitution the non-speaking order of the Collector does not show its reasonableness or compliance with the principles of natural justice.

6. On the view we have taken of the validity of the Collector's orders, as stated above, it becomes not necessary for us to go into further merits of the matter. The decision in respect of it should be left to the Collector in the first instance.

7. The appeals are allowed. The Collector shall dispose of the matter afresh, without paying any heed to the direction of the Government as to whether the lease in favour of the appellants should be cancelled. Any conclusion reached by him should be his own and on the merits in the light of the materials before him. In view of the fact that time has already run out considerably, the Collector is directed to dispose of the matter afresh within three weeks of receipt by him of a copy of this judgment. No costs in the appeals.


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