K. Selladurai vs The Block Development Officer

K. Chandru, J.—Heard both sides.

The writ petition was filed challenging the order of the respondent Block Development Officer, Omalur Panchayat Union dated 11.09.2009 and

after setting aside the same to forbear the respondent from in any manner interfering with the petitioner''s business carried on in the land comprised

in S. No. 31, Mangkuppai, Omalur Taluk Salem District.

When the writ petition came up on 06.10.2009, the learned Government Advocate took notice for the respondent. Pending the writ petition, an

order of interim injunction was granted till 13.10.2009. Subsequently, when the matter came up on 14.10.2009, the interim order was not

extended on the basis of the submissions made by the learned Government Advocate stating that the fish pond was not in existence as on that date.

Since no counter affidavit was filed on behalf of the respondent, this Court directed the original file to be circulated, which was accordingly done

by the learned Government Advocate.

The case of the petitioner was that he had a small fishpond at Survey No. 31, Mangukuppai Village, Salem District. He was doing the business

of fish breeding and selling the same. One of the villager by name Ponmaharasan got elected as Panchayat President. He belonged to different

political affiliation. Due to personal animosity, he started giving pinpricks to the petitioner. The said Ponmaharasan gave a false complaint to the

respondent that the petitioner''s activities in the fishpond was causing environmental pollution in the locality. Based on the false complaint, the

respondent issued a notice dated 30.03.2009 calling for his explanation. The petitioner gave his explanation on 02.04.2009. It was stated that the

mixed farm had been recognised by the Government and therefore, no special permission was required. He also stated that the chicken waste he

was using to feed the fish will not create any environmental pollution. He also stated that the fishpond is situated in his patta land and the adjacent

lands were also his patta lands and that the fishpond was situated one kilometer away from the village.

He further added that pursuant to the complaint, he had stopped using chicken waste to feed the fish. Despite the same, the village President

attempted to destroy his fishpond using his henchmen, which forced the petitioner to file a writ petition being W.P. No. 7896 of 2009. In that writ

petition, this Court by an order dated 27.04.2009 directed the respondent to dispose of the petitioner''s representation dated 02.04.2009.

Even while the representation was being considered, the petitioner set up one Madavaraj to file Crl.O.P. No. 16296 of 2009 seeking for a

direction to the police to register the case on the basis of the compliant dated 30.04.2009, wherein he had accused certain persons for trespassing

into his land. However, the said criminal original petition was dismissed on 10.09.2009 stating that remedies were open to the petitioner before

appropriate forum.

It was pursuant to the order passed by this Court the impugned order came to be passed. The respondent after getting the opinion from the

Assistant Director of Fisheries (Inland Fisheries), Mettur Dam dated 20.04.2009 and perusing the Tamil Nadu Water Supply and Drainage

Board''s report dated 20.04.2009, the letter of the Inspector of Police, Omalur dated 15.04.2009 and the resolution of the Panchayat dated

25.02.2009 considered the case of the petitioner. In the impugned order, it was stated that the petitioner in his fishpond was growing an exotic

variety of fish i.e., Clarius Gariepinnus (Exotic Magur), which is prohibited by the Government of India. He was also using the chicken waste, beef

waste in his fishpond and the water had become polluted. The report of the Assistant Director of Fisheries showed that the Exotic Magur variety

grown by the petitioner was banned by the Government and there is no permission for a private person to breed such varieties. The Tamil Nadu

Water Supply Board after testing the water in the pond found that the water has been polluted. The Panchayat Union also passed a resolution to

remove the fishpond which was set up without permission of the panchayat. Thereafter, the petitioner on the basis of the advice given by the

officers removed all the fish in the 8 fishponds. The the water in theh pond was cleared in 6 fishponds and for removing the water in the remaining

two fishponds he sought for time till 04.05.2009. It was also stated that as per Section 143 of the Tamil Nadu Panchayat Act, 1994, the petitioner

cannot have fish breeding industry even if it is within his patta land.

The petitioner contended that no opportunity was given before passing the impugned order. Despite the interim order, using a JCB machine, the

fishpond of the petitioner was destroyed. He also submitted that no notice was given before demolishing the fishpond. He also contended that there

was no need to get permission to set up a fishpond and no licence is required. Section 141 of the Act do not provide for any direct action without

following due process of law.

The learned Counsel for the petitioner in support of his contention placed reliance upon a judgment of the Division Bench of this Court in Tamil

Nadu Omni Bus Owners, Assn. and Others Vs. State of Tamil Nadu and Others, . It is for the purpose of contending that in the absence of any

Rule, the Government cannot give contrary directions not supported by law.

He also placed reliance upon a judgment of the Supreme Court in Amarnath Sonkar and Ors. v. Union of India and Anr. reported in (2005)

13 SCC 87 for the purpose of contending that it is one thing to state that there can be a direction to comply with the Rules but the other thing is to

totally ban the business carried on by a person. He submitted that since the petitioner has not contravened any of the provisions, he may be

permitted to carry on fish breeding in his own land.

A perusal of the file produced shows that the petitioner himself on 30.04.2009 agreed that he had removed the fish from the 8 fishponds and

that he also removed water from the six fishponds and he sought time till 04.05.2009 to remove the water in the other two ponds. It also shows

that a compliant had been sent by the villagers to the Chief Minister''s grievance cell about the water getting polluted as well as the menace of street

dogs fed with the rejects of fish fees ferrociously roaming around the area. Many villagers were bitten by the street dogs which forced them to take

treatment. The bad odour emanated from the pond also caused great hardship to the people. The said complaint was signed by 104 villagers. Even

the panchayat had passed an unanimous resolution dated 25.02.2009 seeking for removal of the fishpond in the agricultural land which was

created without the permission from the panchayat. The report of the Junior Water Analyst/TWAD Board, Water Testing Laboratory/Salem which

was sent to the Inspector of Police, Omalur Police Station showed that 380 number of Fecal Coliforn colonies per 100 ml found in the petitioner''s

fish pond for which water samples were collected on 16.04.2009 and it was due to contamination of the water. Even the letter written by the

Assistant Director of Fisheries to the respondent shows that at the time of inspection, banned varieties of fish culture was used. In support of the

said report, the letter received from the Director of Fisheries dated 16.06.1998 was also enclosed to state that such exotic varieties cannot be

bred by any individual.

In the light of the above, it has to be seen whether the petitioner has made out a case for the grant of relief sought for in the writ petition.

Even without considering the petitioner''s submission it must be noted that he had decided to close all the 8 fishponds, it has to be seen whether

the petitioner had a valid permission from the village Panchayat. Though the petitioner contends that he has a right to have fish pond in his

agricultural land for the purpose of doing business of fish breeding and selling, without permission from the local panchayat no business can be

carried out. Apart from that, the stand of the Tamil Nadu Water Supply and Drainage Board shows that the water found in the fishpond was

contaminated. The Assistant Director of Fisheries also stated that exotic varieties were bred in the farm. The village people had also complained

about the menace of the street dogs by eating the rejects of the fishpond also cannot be underscored. A perusal of the file also shows that the

petitioner''s objections have been taken note of. The petitioner cannot have unrestricted right to carry on a trade.

In the light of the above, the relief sought for by the petitioner cannot be countenanced by this Court. Hence, the writ petition stands dismissed.

No costs.