SHRI BISMILLAKHAN KALEKHAN PATHAN Vs. COMMISSIONER OF FISHERIES

JUDGEMENT

(1.) By filing the present petition under Article 226 of the Constitution of India, the petitioner has, interalia, made several prayers in Paragraph-7 of the petition, one of which is the following: "(C) declaring that the petitioner is entitled to get the relief at the rate of 40% of his contract amount under clause 21 of the Government policy dated 25.2.2004 and further be pleased to direct the respondents to reimburse the amount of relief to the petitioner as per the rate mentioned in clause 21 of the Government policy dated 25.2.2004" At the very outset, Dr.Mukul Sinha, learned counsel for the petitioner, states that he does not press any of the other prayers, except the one at Paragraph-7(C), reproduced hereinabove. The petition is, therefore, being heard and decided, with the consent of the learned counsel for the respective parties, only in respect of the prayer made in Paragraph-7(C). Briefly stated, the relevant facts emerging from the petition are that, by Office Order dated 12.02.2009 of the Commissioner of Fisheries, Government of Gujarat, the petitioner had been granted a fishing contract for Sipu Dam, for a period of five years, with effect from 01.07.2008 to 10.06.2013. The said fishing contract has been given to the petitioner pursuant to participation in the process of inviting tenders through public advertisement, which were opened by a duly constituted Committee. The upset price was fixed at Rs.1,99,145/-. The tender of the petitioner, being found to be the highest at Rs.78,62,786/-, came to be accepted. The petitioner was called upon to pay the first installment of the contractual amount for the first year, which came to Rs.27,51,975/-, which was duly made by him. The petitioner also deposited an amount of Rs.7,86,277/- in a Fixed Deposit towards the security amount. Consequently, the contract was awarded to the petitioner for carrying on fishing, in an effective water area of 727.00 hectares for an annual consideration of Rs.78,62,786/-, on 12.02.2009. Apart from other conditions in the contract, the policy of the Government, as contained in its Resolution No. FDX 112003 1618 - T dated 25.02.2004, by which certain benefits were to be granted in cases of reduction of water level in the reservoir, was also made a part of the contract by virtue of clause-52 thereof.

(2.) It is the case of the petitioner that in the year 2009, there was very scanty rainfall in Banaskantha District wherein Sipu Dam is located, and the water level in the said Dam decreased drastically from 727.00 hectares, to 220.00 hectares, as on 31.10.2009. Consequently, the effective water area was reduced to only 30% of the original water area allocated to the petitioner for fishing, leading to serious financial repercussions and business losses, as the quantity of fish netted per day had dwindled and reduced alarmingly. The petitioner, vide letters dated 01.10.2009 and 30.12.2009 addressed to the Commissioner of Fisheries and Superintendent of Fisheries, respectively (respondents No.1 and 2 herein), pointed out that due to insufficient rain, the effective water area in the Dam as well as the level of water was continuously reducing, due to which, he was suffering huge losses. Referring to Government Resolution dated 25.02.2004, more particularly, clause 21 thereof, the petitioner submitted in the said communications that he had become entitled for grant of relief as per clause-21 of the said Resolution, as the effective water area had reduced from what was originally allocated to him, by 21% to 30% in the month of October. The petitioner asserted that as per Government policy contained in the said Resolution when, in the month of October of any year, the effective water area reduces to 21% to 30% of the original area, the contractor would get relief of 40% of the actual contract amount and, in the present case, as the conditions mentioned in the Resolution are fulfilled, he is entitled to get relief to the tune of 40% of the annual contract amount of Rs.78,62,786/-. The petitioner forwarded copies of the letters written by him to the Collector, Banaskantha, who, in turn, forwarded the same to respondent No.2. By letter dated 01.02.2010 respondent No.2 informed the petitioner that as per clause-21 of Government Resolution dated 25.02.2004, relief could only be granted in the eventuality that the District Collector declares that "scarcity" or "semi-scarcity" conditions are prevailing in the District. As this has not been done in the present case, the relief stands denied. It is in the above factual background that the petition has been preferred.

(3.) Dr.Mukul Sinha, learned counsel for the petitioner, has submitted that the petitioner has been awarded the fishing contract at an annual consideration of Rs.78,62,786/-, and as the water level in the area allotted to him for fishing has drastically decreased from 727.00 hectares to 220.00 hectares, the petitioner has incurred heavy financial losses. That the reduction of the effective water area from 727.00 hectares to 220.00 hectares falls within the criteria of 21% to 30%, as per clause-21 of the Government Resolution dated 25.02.2004, and in view thereof, the petitioner would be entitled to relief at 40% of the annual contract amount. It is further submitted that respondent No.2 is well aware of the factual situation of reduction of the effective water area, as the Executive Engineer of the Irrigation Department has addressed communication dated 30.01.2010 to him, apprising him of this aspect. It is emphatically contended by Dr.Sinha that merely because the Collector has not declared the District to be hit by "scarcity" or "semi-scarcity", the petitioner cannot be deprived of the benefits that should accrue to him as per Government Resolution dated 25.02.2004, which contains the policy of the State in this regard, especially, when it is not disputed that the water level in Sipu Dam had drastically gone down, and the effective water area had reduced considerably. That the petitioner has been unable to net the required quantity of fish and has faced heavy losses. It is further urged that it is for situations such as this that the Government issued the Resolution, with the object of ensuring that persons who have been granted fishing contracts do not suffer due to factors such as reduction of water level and decreased water area, and the respondents may be directed to implement their own policy by granting relief to the petitioner.