GANPATHI THIRUPATHAIAH Vs. DIST PANCHAYAT OFFICER

JUDGEMENT

(1.) Petitioner is a resident of Padamaraveerayapalem of Kurichedu Mandal of Prakasam District. There are three water tanks namely, Papirayudu Cheruvu, Venkaiah Cheruvu and Omkara Cheruvu in the third respondent Gram Panchayat of West Veerayapalem. The third respondent - gram Panchayat decided to put public auction on 7-7-2006 for a period of three years commencing from 2006-2007, 2007-2008 to 2008-2009. Accordingly the gram Panchayat passed a resolution stipulating the terms and conditions to conduct the public auction to lease out the fishing rights. The Gram Panchayat fixed the upset price at Rs. 40,000/- per annum for a period of three years insofar as Papirayudu Cheruvu is concerned and the prospective bidder has to deposit a sum of Rs. 2,000/- for participating in the auction. The petitioner offered an amount of Rs. 45,000/- in respect of the Papirayudu Cheruvu, which was knocked down in his favour on 7-7-2006 and accordingly the petitioner deposited a sum of Rs. 15,000/- towards first installment of the first year and a receipt was also issued by the third respondent to that effect.

(2.) Learned counsel for the petitioner submits that after taking possession of the said Papirayudu Cheruvu, the petitioner invested huge amounts in order to purchase the fish seeds and he scattered the same in the said Cheruvu and raised fish by giving time to time supplements. While so, the third respondent gram Panchayat again passed a resolution dated 1-9-2006 proposing to conduct auction in respect of the said Cheruvu and requested the Government to fix the upset price. It is stated that he also made a representation to the concerned authorities stating that he is the leaseholder in respect of the said Cheruvu and the lease is subsisting up to 2009, therefore, no auction can be conducted in respect of the said cheruvu. It is stated that the action of the respondents is illegal and arbitrary in proceeding to conduct auction in respect of the said cheruvu. It is further stated that the conduct of re-auction without cancelling the earlier auction dated 7-7-2006 by the third respondent is illegal, immoral and unethical. Accordingly, this writ petition has been filed on 18-9-2006 seeking a Writ of Mandamus to declare the action of the respondents in proposing to conduct auction pursuant to the resolution dated 1-9-2006 passed by the third respondent gram Panchayat without cancelling the petitioner's leasehold rights in respect of said cheruvu situated in Sy.No.331, admeasuring Ac. 80. 77 cents of Padamara Veerayapalem Gram Panchayat, Kurichedu Mandal, Prakasam District as illegal and arbitrary and to direct the respondents not to conduct re-auction.

(3.) Counter has been filed by the first respondent stating that it is false to state that the third respondent has put an auction on 7-7-2006 with regard to the fishing rights for a period of three years pertaining to the three water tanks namely, Papirayudu Cheruvu, Venkaiah Cheruvu and Omkara Cheruvu admeasuring Ac.80. 77 cents in Sy. No. 331 of West Veerayapalem Gram Panchayat. As per the rules made in G.O. Ms. No.343 of 1978 and G.O.Ms.No.499 of 1998 the third respondent represented by its Secretary has no power to lease out fish tanks on his own accord without obtaining upset price from the District Panchayat Officer. The Gram Panchayat has not followed the rules and thus violated the prescribed procedure, therefore, the action of the then Sarpanch and the Panchayat Secretary is highly illegal and contrary to the rules. Hence, the petitioner cannot ask for enforcement of an illegal order of the then Sarpanch. The then Sarpanch has leased out the tank for a period of three years just one month before the end of his tenure without jurisdiction. It is stated that the fishing rights were auctioned regularly till 2003 but after 2003 no auction has been conducted and the present auction was conducted without obtaining the upset price and without giving any notification in any newspaper. Thus, the alleged auction conducted itself is improper, illegal and the said orders of the Sarpanch and Panchayat Secretary cannot be enforced. It is stated that the tank was not at all handed over to the petitioner, as such, there is no scope for the petitioner to invest huge amount in respect of the said tank. Immediately after the commencement of the newly elected body of the Panchayat on 2-8-2006, a resolution was passed on 1-9-2006 to get the auction conducted to lease out the fish tank. The newly elected body obtained the approval of the District Panchayat Officer by following due process of law and the upset price was fixed by the District Panchayat Officer vide proceedings dated 23-9-2006 for all the said tanks. Before auctioning the fishing rights, the Gram Panchayat has to obtain permission from the District Panchayat Officer for fixation of the upset price in pursuance of G.O.Ms. No.499 of 1998 and G.O.Ms.No.343 of 1978, as the procedure was not followed the alleged auction cannot be considered as valid auction and it is non-est in law. The letter of the third respondent gram Panchayat dated 1-9-2006 requesting the District Panchayat Officer for fixing the upset price for three years, through the Mandal Parishad Development Ofiicer has been considered and upset price has also been fixed.