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Allahabad High Court · body

1989 DIGILAW 643 (ALL)

Ali Raza v. Board of Revenue, U. P. Allahabad

1989-08-10

R.P.SINGH

body1989
JUDGMENT R.P.Singh, J. 1. This writ petition under Article 226 of the Constitution is directed against an order passed by the Board of Revenue dated 27-4-1989, rejecting the revision and upholding the order passed by the Additional Collector (Finance and Revenue) putting certain restrictions on the fishing rights of the petitioner. 2. The facts giving rise to this writ petition as disclosed in the various affidavits filed in the case are that the petitioner was granted a lease for fishing for a period of ten years by Sub-Divisional Officer, Chandauli, Varanasi which was to expire on 30-6-88. Before the expiry of the lease the petitioner filed an application for renewal of the lease and the Sub Divisional Officer on 12-4-88 renewed the lease of the petitioner for a period of ten years. The Pradhan of the Gaon Sabha then moved an application under section 198 (4) of the UP ZA and LR Act for cancellation of the said lease and the Additional Collector vide his order dated 1-12-88 permitted the petitioner to do the fishing on the condition that the petitioner deposits the sale proceeds of the fishing in a nationalised bank and further directed that a representative of the Pradhan would be present at the time of fishing and the petitioner was directed to maintain day-to-day accounts. Aggrieved against the imposition of these conditions the petitioner went up in revision before the Additional Commissioner who rejected the same as not maintainable The petitioner then preferred a revision before the Board of Revenue which was also rejected. Being aggrieved the petitioner has preferred this writ petition before this Court. Heard Sri S. N. Singh for the petitioner and Sri V. M. Sahai and K. B. Garg for the respondents. 3. The learned counsel for the petitioner contended that the conditions imposed by the Addl. Collector vide his order dated 27-4-89 are very arbitrary and the lease of the petitioner for fishing having been renewed for a further period of ten years, the petitioner was entitled to carry on the fishing without any interference by the Additional Collector and since the conditions imposed by the Additional Collector amounts to undue interference in the petitioner's right to carry on the fishing, the order passed by the Additional Collector is liable to be quashed. 4. 4. The learned counsel for the respondents on the other hand contended that there is no provision for renewal of fishing rights and that the Sub Divisional Officer could grant a lease for fishing only if the Land Management Committee was not able to grant the lease. The learned counsel contended that since there is nothing on the record to indicate that the Land Management Committee was not in a position to grant the lease for fishing and it is the Land Management Committee which is primarily entitled to grant lease for fishing in the pond and hence the Sub Divisional Officer has no jurisdiction under the circumstances to renew the lease for a further period of ten years in favour of the petitioner and since there is no valid grant of lease in favour of the petitioner and hence the petitioner is not entitled to grant of any relief under Article 226 of the Constitution from this Court. The short question, therefore, for consideration before this Court is whether there is any valid renewal of lease in favour of the petitioner made by the Sub Divisional Officer Section 122-A (k) of the Zamindari Abolition and Land Reforms Act provides that the Land Management Committee shall be charged for and on behalf of the Gaon Sabha with the powers of general superintendence, management and maintenance of fisheries and tanks. Section 28-B (e) of the U. P. Panchayat Raj Act also provides that the Land Management Committee shall, for and on behalf of the Gaon Sabha be charged with the control and management of fisheries and tanks. Hence the power to manage and control the fishery rights has essentially been conferred on the Land Management Committee. 5. The learned counsel for the petitioner relied on paragraph 62 of the U. P. Gaon Samaj Manual in support of his contention that the Sub Divisional Officer is empowered to grant a lease/patta in favour of the petitioner and hence he was perfectly within his rights in renewing the lease for a further period of ten years in favour of the petitioner and hence the Assistant Collector had no jurisdiction to put fetters and restrictions on the petitioner's right to carry on his fishing in the pond. 6. 6. A close reading of paragraph 62 of the U. P. Gaon Samaj Manual, however, reveals that the Sub Divisional Officer can exercise his power to grant lease only if he is satisfied that the Land Management Committee is not able to grant the lease. It appears therefore, that the condition precedent to the exercise of the right of the Sub Divisional Officer to grant the lease for fishing is his satisfaction that under the circumstances the Land Management Committee is not able to grant the lease and hence it is necessary for him to do so. In the present case, no material has been placed before me by the learned counsel for the petitioner to indicate that the Sub-Divisional Officer was satisfied under the circumstances that the Land Management Committee is not in a position to grant the lease. In absence of this precondition existing, the Sub-Divisional Officer, in my opinion, was not competent to grant or renew the lease in favour of the petitioner. That being so, there was no valid lease granted in favour of the petitioner and in absence of a valid lease, the petitioner cannot successfully challenge the conditions imposed on him for carrying his fishing right in the pond. Learned counsel for the petitioner in support of his contention submitted that the Sub-Divisional Officer is competent to grant the lease and the Gaon Sabha or the Land Management Committee was not competent to grant the lease and relied upon the case of Gaon Sabha, Raison v. Additional Collector, 1979 AWC 234 . In that case the Gaon Sabha had conducted the auction without complying with the directions issued by the State Government that the leases should be given to fishermen and boatmen residing in the village and only when there are no such persons belonging to these categories in the Gaon Sabha that the leases may be granted to other persons. The order of the Additional Collector setting aside the auction and directing the Gaon Sabha to lease out the fishery rights in accordance with the directions issued by the State Government, under the circumstances, was upheld. Hence in that case also the Gaon Sabha was held entitled to grant patta for fishery right and hence this case does not support the petitioner. The learned counsel for the petitioner next relied on the case of Nithuri v. IVth Addl. District Judge, 1984 RD 335. Hence in that case also the Gaon Sabha was held entitled to grant patta for fishery right and hence this case does not support the petitioner. The learned counsel for the petitioner next relied on the case of Nithuri v. IVth Addl. District Judge, 1984 RD 335. There in that case, reference was made to paragraph 62 of the Gaon Samaj Manual and it was held that from 1981 the right to grant lease for fishing in a pond or tank vested in two authorities, one the Land Management Committee and the other Sub Divisional Officer and the circumstances and manner of exercise of power by the two authorities have been detailed in paragraph 62 (2) (b) of the Gaon Samaj Manual itself. It was held that if the Sub-Divisional Officer is satisfied that the Land Management Committee is not able to grant lease and it is necessary for him to do so then only the Sub Divisional Officer can exercise his power of granting lease for fishery right. Hence this also does not help the petitioner as here also it is held that the pre-condition existent to the exercise of power of the Sub-Divisional Officer is his satisfiction that the Land Management Committee is not able to grant the lease. 7. The learned counsel for the petitioner next relied on the case of Ramdhani Singh v. State of U. P., 1986 RD Vol. II 374, which does not apply to the present case at all as the cancellation of the settlement or grant made under Bhoodan Act was the question decided in that case. 8. In view of the facts stated above, it is clear that as the Sub- Divisional Officer could grant or renew lease in favour of the petitioner only after he records his satisfaction that the Land Management Committee was not in a position to grant lease and since this condition is not fulfilled in the present case and hence there appears to be no valid lease existing in favour of the petitioner and in that view of the matter the petitioner is not entitled to challenge the restrictions placed on him by the Additional Collector, Varanasi in carrying on his fishing right in the pond. IN that view of the matter it is not necessary to examine and decide whether the conditions imposed on the petitioner's right of fishery are arbitrary and illegal. IN that view of the matter it is not necessary to examine and decide whether the conditions imposed on the petitioner's right of fishery are arbitrary and illegal. In the result, the writ petition fails and is dismissed. Petition dismissed.