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Judgment
Amit Seth, J
Heard on the question of admission.
The instant writ petition filed under Article 226 of the Constitution of India challenges the inter-departmental communication dated 24.09.2025 issued by the Deputy Director, Fisheries, Gwalior and Chambal Division, Gwalior addressed to the Joint Commissioner (Development) Office of the Commissioner, Chambal Division, Morena wherein, a report pertaining to the entitlement of the candidates who had applied for allotment of fisheries rights in Baarda Pond, Jila Panchayat, Sheopur has been submitted.
The petition also challenges the order dated 25.09.2025 (Annexure P/13) issued by the Joint Commissioner as per the directions of the Divisional Commissioner addressed to the Collector whereby, the fisheries rights in respect of the tank in question has been directed to be allotted to the respondent No.7.
The learned counsel appearing for the petitioner submits that the report which has been forwarded by the respondent No.5 to the respondent No.4 contains incorrect factual position as regards the petitioner is concerned. He submits that the report states that although the petitioner was granted the lease of the pond for the last 10 years, the petitioner has defaulted in payment of the lease amount whereas, as per the documents filed with the petition, the respondents themselves have granted compensation to the petitioner as there was leakage in the dam and no fisheries activities could be undertaken. He further submits that the committees considering the candidature of the petitioner for allotment of fisheries rights has not appreciated the facts in their proper prospective, and the report which is submitted by the respondent No. 5 to the respondent No.4 culminated into the rejection of the candidature of the petitioner and the fisheries rights have been allotted to Bhimrao Ambedkar Society vide order dated 25.09.2025.
The learned counsel appearing for the petitioner submits that when the policy for allotment of fishing rights (Annexure P/14) provides for a multi-stage decision-making process at various stages and the committee are required to take into consideration certain material aspects, if some incorrect facts are taken into consideration by the said committees, resulting into the forwarding of a report which culminates into the rejection of the candidature of the petitioner, the petitioner is having every right to seek interference in the matter. Though, the principles of natural justice in their strict statutory form may not be attracted in the process, since the rights of the petitioner are affected, the material which was supplied by the petitioner and the objections which were raised by the petitioner during the decision-making process deserved to be considered which is lacking in the instant case and therefore, the report dated 24.09.2025 deserves to be quashed and the petition deserves to be allowed by quashing the final order dated 25.09.2025.
On the other hand, the learned counsel appearing for the State submits that the communication dated 24.09.2025 is a departmental communication wherein, the candidature of all the candidates considered and a report in terms of the decision of the resolution passed by the committee was forwarded to the competent authority (respondent No.4). He submits that the final order dated 25.09.2025 passed is appealable in terms of statutory remedy of appeal and revision under Section 91 of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam, 1993 (hereinafter referred to as 'the Adhiniyam, 1993'). The instant writ petition filed by the petitioner does not deserve consideration on merits without exhausting the statutory remedy of appeal and the petitioner deserves to be relegated to avail the statutory remedy of appeal before the appellate authority.
No other point has been pressed by the learned counsel for the parties.
Heard learned counsel for the parties and perused the record.
The preliminary objection raised by the State counsel regarding the maintainability of the instant writ petition, on the ground that the petitioner has failed to avail the statutory remedy of appeal, is taken into consideration.
The similar issue has been dealt with by a Coordinate Bench of this Court at Indore in W.P. No.19458/2025 vide order dated 28.08.2025, wherein the Coordinate Bench has held as under:-
"4. The objection as raised by learned counsel for respondent No.7 as regards availability of alternate remedy to the petitioner is based upon Section 91 of the Adhiniyam which is as under:-
" An appeal or revision against the orders or proceedings of a Panchayat and other authorities under this Act, shall lie to such authority and in such manner as may be prescribed"
Section 95 of the Adhiniyam is the general rule making power of the State Government and is as under:-
"Power to make rules : -
(1) The State Government may make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the matters which under any provision of this Act, are required to be prescribed or to be provided for by rules.
(3) All rules shall be subject to the condition of previous publication.
(4) All rules shall be laid on the table of Legislative Assembly.
(5) In making any rule, the State Government may direct that a breach thereof shall be punishable with fine which may extend to two hundred fifty rupees and in the case of continuing breach with a further fine which may extend to five rupees for every day during which the breach continues after the first conviction."
At this juncture it may also be profitable to refer to provision of Section 85 of the Adhiniyam which is as under:-
" Power to suspend execution of orders etc .
(1) The State Government or the prescribed authority may by an order in writing and for reasons to be stated therein suspend the execution of any resolution passed, order issued, license or permission granted or prohibit the performance of any act by a Panchayat, if in his opinion,-(a)such resolution, order, license, permission or act has not been legally passed, issued, granted or authorised;
(b) such resolution, order, license, permission or act is in excess of the powers conferred by this act or is contrary to any law; or
(c) the execution of such resolution or order, or the continuance in force of such license or permission or the doing of such act is likely,-
(i) to cause loss, waste or misapplication of any money or damage to any property vested in the Panchayat;
(ii) to be prejudicial to the public health, safety or convenience;
(iii) to cause injury or annoyance to the public or any class or body of persons; or
(iv) to lead to a breach of peace.
(2)[ Whenever an order is made by the prescribed authority under sub-section (1), it shall forthwith and in no case later than ten days from the date of order, forward lo the State Government or the Officer nominated by the State Government for this purpose, copy of the order with the statement of reasons for making it, and the State Government or the officer nominated by it [may confirm, set aside, revise or modify the order or direct that it shall continue to be in force with or without modification permanently or for such period as may be deemed fit :] [Substituted by M.P. Act No. 2 of 1997 (w.e.f. 7-1-1997).] Provided that no order of the prescribed authority passed under sub¬section (1) shall be confirmed, [set aside] [Inserted by M.P. Act No. 43 of 1997 (w.e.f. 5-12-1997).], revised or modified by the State Government or the officer nominated by it without giving the Panchayat concerned a reasonable opportunity of being heard against the proposed order]. "
Fishery policy dated 08.08.2008 has been framed by the Fisheries Department of the State Government in exercise of power under Section 53(1) of the Adhiniyam which is as under:-
Powers of State Government in relation to functions of Panchayats. -
"(1) (a) Subject to such conditions as may be specified by general or special order issued by the State Government, the Panchayat at the appropriate level shall have the powers and authority as may be necessary to enable them to function as institutions of self Government in relation lo matters listed in Scheduled IV, including preparation of plans, implementation of schemes for economic development and social justice, and other duties and functions assigned to them under Sections 49, 49-A, 50, 52 and Chapter XIV-A.
(b) The State Government may, by notification, endow Panchayats at the appropriate level with powers and responsibilities for the selection, recruitment, appointment and management of any cadre or cadres of employees required for the efficient implementation of schemes, subject to the staffing pattern approved by the State Government and such other conditions as it may deem fit."
In the case of Adiwasi Matsya Udyog Sahakari Sanstha Maryadit Vs State of M.P. and others, Writ Appeal No.574 of 2023 decided by order dated 13.07.2023, this Court has held that against an order passed in respect of allotment of a tank under the Fishery policies, 2008 alternate remedy is available under Section 85 of the Adhiniyam. However in the said judgment the provision of Section 53 of the Adhiniyam has not been considered. Since the fishery policy has been made in exercise of power under Section 53 of the Adhiniyam any order to be passed thereunder would be an original order passed under the provisions of the Adhiniyam and hence would be be an order appealable under Section 91 of the Adhiniyam read with the Rules framed thereunder. As per Rule 3(b) of Madhya Pradesh Panchayats (Appeal and Revisions) Rules, 1995 in case of an order passed by the Collector under any provisions of the Act or Rules or bylaws made thereunder appeal lies to the Commissioner.
In view of the aforesaid discussion, I am of the opinion that against the impugned order passed by the Collector, an alternate remedy of preferring an appeal before the appellate authority is available to the petitioner.
In view of the same this petition is declined to be entertained and is accordingly dismissed reserving liberty to the petitioner to avail the alternate remedy as available to him. However considering the fact that initially this petition was entertained and has remained pending on the question of maintainability, it is directed that in case the petitioner resorts to the alternate remedy within a period of 30 days from today then the said remedy shall be adjudicated upon by the appellate authority on merits and shall not be dismissed on the ground of limitation."
Thus, the Coordinate Bench of this Court has already held that, in the matters pertaining to the allotment of fisheries rights by the Panchayats under the Fisheries Policy for the year 2008, the remedy of appeal, as provided under Section 91 of the Adhiniyam, 1993 must be availed prior to invoking the writ jurisdiction of this Court under Article 226 of the Constitution of India.
In the instant case, the order of the Divisional Commissioner is under challenge which, in terms of Rule 3 of the M.P. Panchayat (Appeal and Revision) Rules, 1995 (herein after referred to as "the Rules") is required to be challenged by way of an appeal before the State Government, as has been held by the another Coordinate Bench of this Court at the Principal Seat, Jabalpur, vide order dated 03.09.2022 passed in W.P. No.29448/2018. The relevant paragraph of the order dated 03.09.2022 passed by the Coordinate Bench of this Court at Jabalpur in W.P. No.29448/2018 reads as under:-
"This petition is filed being aggrieved of order passed on 6/08/2018 by the Divisional Commissioner.
The appeal lies to the State Government under Section 91 of the M.P. Panchayat Raj Avam Gram Swaraj Adhiniyam r/w Rule 3 of the M.P. Panchayat Appeal and Revision Rules, 1995.
In view of the availability of the alternate statutory remedy, this writ petition is disposed of directing the State Government that if appeal is filed within a period of 15 days from today, then without adverting to the aspect of limitation, as petitioner has spent four years before this court, the appellate authority shall decide the same on its own merits within a further period of 15 days after considering rival submissions of the parties."
Taking into consideration the consistent view of this Court in identical matters, the admission of the instant writ petition is declined. The petitioner is hereby relegated to avail the statutory remedy of appeal, as provided under the Adhiniyam, 1993, read with the Rules, 1995.
It is observed that in case, any appeal is preferred by the petitioner against the order impugned before the appellate authority within a period of 30 days from today, the same shall be dealt with on merits in accordance with law, after affording opportunity an opportunity of hearing to all concerned.
With the aforesaid, the petition is dismissed.
Pending application(s), if any, stand(s) closed.