JUDGMENT 1. - The case albeit was fixed for hearing on the application for modification of this Court's order dated the 26th March, 1990 but both the learned counsel for the parties submitted that the arguments on this application as well as the writ petition are common so, the matter be heard finally. Therefore, with the consent of both the parties, arguments were heard on merits of the writ petition. 2. Munna Khan, petitioner, being aggrieved by inaction on the part of the respondents for passing no specific order on his representation or to extend the term of his lease/contract any more, treating the water of Raipur dam (district Sikar) as B Class. 3. Facts in narrow compass. Water of Raipur dam (district Sikar) was classified as Class C in the year 1985. It was put to auction and a bid of Rs. 5000/- was offered by the petitioner and was accepted by the respondents and pursuant thereto, a licence was granted in favour of the petitioner for one year commencing from 16th June, 1985 to 15th June, 1986 and this term was extended for further four years expiring on 15.6.1990 by making the total period of lease agreement of five years. 4. Petitioner's case is that the water in question should be classified as B class water and he be allowed to continue for further 15 years as per the requirement of Rule 5 (2) of the Rajasthan Fisheries Rules, 1958 (for brevity, 'the Rules') inasmuch as he has already invested a huge amount by putting seeds at the rate of more than 30,000/- per hectre, so, the equity is in his favour to continue on the said water. 5. The respondents contested the writ petition by contending that waters are classified before putting them for settlement and it was classified as Class C water and put to public auction and that as Class C water, lease was granted to the petitioner for one year initially and continued by extention for five years later on. The respondents added that for fish culture, the petitioner was required to put seeds @ Rs. 2 000/- per hectre and he was neither asked nor compelled to put seeds @ Rs. 30,000/- per hectre inasmuch as putting more seeds is not conducive to the fish culture and that being so there is no equity in favour of the petitioner. The respondents added that for fish culture, the petitioner was required to put seeds @ Rs. 2 000/- per hectre and he was neither asked nor compelled to put seeds @ Rs. 30,000/- per hectre inasmuch as putting more seeds is not conducive to the fish culture and that being so there is no equity in favour of the petitioner. The respondents further urged that the petitioner's claim that Raipur dam water is Class B water and thereby, he be allowed to continue to hold licence for 10 years under Rule 5(2) of the Rules is against the provisions of law. 6. The respondents, drawing my attention to Rule 5(2) of the Rules, argued that under the said Rules, fishing rights can only be given to the registered cooperative society or to Fish farmers development agency and not to individuals and by virtue of it, since the petitioner is neither a registered co-operative society, nor is a Fish farmers development agency, he cannot invoke Rule 5(2) of the Rules nor can he claim any right even if it is assumed to be a class C water. 7. The respondents also urged that the petitioner's case that he put in more seeds, involves disputed question of fact and, therefore, the same cannot be adjudicated in the writ petition. 8. During the course of arguments, it was also argued that the petitioner was allowed to fishing upto the date of expiry of the period of license. On the other hand, it was contended on behalf of the petitioner that the petitioner did not make any fishing upto the last date of the expiry of the period of license. 9. The petitioner was awarded contract of fishing on annual lease value of Rs. 5,000/- in the beginning but was increased by 10% more upon renewal of the lease every year. Last of the said renewal was granted for a period ending on 15th June. 1990, vide Annexure R. 2, with the annual lease value to Rs. 5,750/-. The petitioner was granted license under the provisions of the Rajasthan Fisheries Act, 1953 and the Rules of 1958. Under the Rules of 1958, Class C water is leased in an open auction for one year at the initial stage and this period can be extended further subject to the condition that the total period of lease shall not exceed five years. 10. Under the Rules of 1958, Class C water is leased in an open auction for one year at the initial stage and this period can be extended further subject to the condition that the total period of lease shall not exceed five years. 10. Rule 5 (1) provides for procedure by auction. Its sub-rule (c) provides for term of specific 'C' class waters. Sub-rule (c) of R. 5(1) reads as under:- "(c) Specified "C" class waters suitable for fish culture may be leased out by open auction for a period of one year in the initial stage, and the period may be extended for a period not exceeding one year at a time, subject, however, to the condition that the total period of lease shall not exceed five years in accordance with the terms and conditions as specified in Form No. 3A appended to these Rules." Under sub-rule (2) of R. 5 of the Rules, allotment of waters fetching revenue upto Rs. 10,000/- per annum and suitable for fish culture can be allotted on approved terms and conditions for the period of 10 to 15 years to Fish Farmers Development Agency or any other such institution registered under Rajasthan Registration of Societies Act, 1953 which in turn shall lease such all allotted waters on the terms and conditions specified in Form 3B to train Fish Farmers/registered Fish farmers co-operative societies. Under explanation to Rule 5 of the Rules, 'C' class water means, the water whose income to State Government is below Rs. 5,000/-per year. 11. Obviously, therefore, the petitioner who had been granted lease initially for an amount of Rs. 5,000/- could not be considered to have been granted lease for 'C' class water because, the 'C' class water is one which fetches revenue to the State below Rs. 5,000/- per year as defined in explanation to Rule 5 (2) of the Rules. A perusal of Annexure 16-licence No. 200/- dated 21-12-89 of licensee - Shakir Khan for water-Dam Kot Sikrai, would show that the respondents whenever used to grant rights in respect of 'C' class water, did grant licence for a sum of Rs. 4,999/- below Rs. 5,000/-. 12. Precisely, according to the Rules, the petitioner's lease in question being for an amount of Rs. 4,999/- below Rs. 5,000/-. 12. Precisely, according to the Rules, the petitioner's lease in question being for an amount of Rs. 5,000/- per annum could not be considered to be for 'C' class water and could be granted for 10-15 years under sub-rule (2) of R. 5 because, the Raipur dam water so far as the petitioner is concerned, does not fetch revenue to the State below Rs. 5,000/- per year, argued learned counsel for the petitioner. 13. Next contention on behalf of the petitioner was that he has made best efforts to develop the farm by investing huge money in putting large number of fish seeds into the water etc., inasmuch as the fish had not grown to the minimum prescribed weight whenever he caught fishes thereby he had to liberate them into the water and that apart, the respondents failed to supply the requisite fish-seeds to the petitioner as per lease terms thereby he had to purchase the seeds from market at escalated prices. Moreover, the level of the water being very low, the petitioner albeit put in considerable number of fish-seeds but could not attain beneficial results because the fish had not developed to its prescribed weight thereby the petitioner has not caught even a single fish during 1988-89 and 89-90, as has been averred in the affidavit dated 23.8.90, learned counsel added. 14. It has been stated by the petitioner's learned counsel that as is clear from the admission by the respondents in their letter dated 29.4.87 (Ann. 6), they did not have fish-seeds available and that apart, from the certificates issued by the respondent-department, the petitioner was forced to purchase the seeds outside the department at higher rate. Taking the aid of the aforesaid admissions wrung out from the letter (Ann. 6) and other certificates learned counsel urged that for the in actions on the part of the respondents, the petitioner cannot be penalised and that being so, the respondents are estopped from denying the renewal of the lease/licence to the petitioner. Taking the aid of the aforesaid admissions wrung out from the letter (Ann. 6) and other certificates learned counsel urged that for the in actions on the part of the respondents, the petitioner cannot be penalised and that being so, the respondents are estopped from denying the renewal of the lease/licence to the petitioner. Alternatively, the learned counsel stated that though in fret, the lease/licence ought to have been granted at the initial stage for 10-15 years treating the water in question as falling within the purview of R. 5(2) but without prejudice to the same, since the petitioner has not procured better results out of his efforts made in developing the farm by investing huge money in putting fish-seeds into water after having been purchased outside the department on account of its failure to supply the seeds well within time, the petitioner has equity in his favour to get further renewal of his lease/licence. In this regard, learned counsel added that at the beginning the petitioner had paid the licence fee of Rs. 5,000/- and subsequent thereto every year an increase of 5% over the previous amount has been made and the lease amount has increased to Rs.5,750/- during last renewal upto 19.6.90 thereby the revenue to the State out of the Raipur dam water so far as the petitioner is concerned, has been above Rs. 5,000/- and not below it, and thus the case of the petitioner falls within the purview of Rule 5(2) and not under Rule 5(1) (c) treating the water as 'C' Class and, therefore, the petitioner is argued to be entitled to further renewal upto 10-15 years under Rule 5(2) of the Rules. 15. 5,000/- and not below it, and thus the case of the petitioner falls within the purview of Rule 5(2) and not under Rule 5(1) (c) treating the water as 'C' Class and, therefore, the petitioner is argued to be entitled to further renewal upto 10-15 years under Rule 5(2) of the Rules. 15. Learned counsel for the petitioner also argued that on account of the water level being very low because of drought in Rajasthan for last five years, the water was not capable of sustaining the productivity rate in existence during grant of lease/licence in question despite his best efforts to develop the farm by spending huge expenditure in purchasing the seeds from other than department upon its failure to supply the seeds within time and in developing the farm, the productivity could not be maintained, because of lack of water and vagaries of the nature, and the petitioner had not derived any benefit out of his efforts and the lease/licence in question and in this view of the matter, in the interest of justice the equity lies in his favour to get further renewal also. Thus, learned counsel urged, the petitioner cannot be deprived of the fruits of his own efforts, when in last five years, he has been able to catch fish weighing 75 kgs only against the lease value already paid to the State worth more than Rs. 25.000/- atleast. In these circumstances, learned counsel prayed for equitable relief in favour of the petitioner. 16. Having considered the points raised by both the parties in their oral as well as written arguments, firstly I may state that the petitioner has filed an affidavit dated 23.8.90 alongwith his written argument stating therein what has been noted above as contentions on behalf of the petitioner. I may also state that a copy of that affidavit has also been handed over in the office of the Government Advocate on 23.8.90 apart from Annexures 11 to 16 appended thereto. The Government Advocate has filed written arguments on 25.8.90 after receipt of a copy of the petitioner's affidavit dated 23.8.90 and written argument on his behalf, and till date no counter affidavit has been filed by the respondents. 17. It is settled law that an averment in the application and affidavit which is not traversed by the respondents by a counter affidavit must be taken to have been admitted. 17. It is settled law that an averment in the application and affidavit which is not traversed by the respondents by a counter affidavit must be taken to have been admitted. Thus, the averments in the affidavit dated 23.8.90 of the petitioner remained unrebutted on account of non-filing of the counter affidavit by the respondents and the contentions raised therein are taken to have been admitted. 18. Now coming to the present controversy, I may say that the claim of the petitioner is assailed by the respondents mainly on the ground that the instant water auctioned was "C" class and so, initially the lease/licence was granted only for a year but in accordance with the Rules subsequently lease was renewed for five years firm by granting renewal every year after initial grant because the department was having annual revenue worth Rs. 5,000/- only out of the water in question and further that the case of the petitioner is not covered by sub-rule (2) of Rule 5. I am not at all inclined to accept the assailing grounds urged by the learned Government Advocate because, admittedly the department accepted the annual lease value worth more than Rs. 5,000/- upto the expiry date of renewal of the lease and in the year 1989-90 annual lease value was Rs. 5,750/- and that being so, the revenue to the State Government out of the water in question, was not below Rs. 5,000/- rather the water was fetching revenue more than Rs. 5,000./- and upto Rs. 10,000/- Therefore, the water in question can, in no manner beheld to be "C" class under Rule 5(1) (c) rather it comes within the purview of Rule 5(2) by virtue of it, the water suitable for fish culture can be allotted on approved terms and conditions for the period of 10-15 years. Further, the petitioner who admittedly had been granted licence for annual lease value of Rs. 5,000/- cannot be held to have been granted licence for "C" class water because, as already taken note of, "C" class water means the water whose income to the State Govt. is below Rs. 5,000/- per year which is not the case at hand. That apart, as is evident from Annexure 16, the respondents used to giant licence in respect of 'C' class water for annual lease value of Rs. 4,999/- i.e. below Rs. 5,000/- and not at Rs. 5,000/-. is below Rs. 5,000/- per year which is not the case at hand. That apart, as is evident from Annexure 16, the respondents used to giant licence in respect of 'C' class water for annual lease value of Rs. 4,999/- i.e. below Rs. 5,000/- and not at Rs. 5,000/-. Therefore, it is clear that the licence which was granted to the petitioner for annual lease value at Rs. 5,000/- and more than that also, could not be considered for class C water and he could not have been granted renewal of licence for 10-15 years. 19. The contention of the respondents that sub-rule (2) of Rule 5 of the Rules is not applicable to the case at hand, is without any substance, and certainly by the act of the respondents in accepting the annual lease value at Rs. 5,000/- and in excess thereto upto Rs. 5,750/- upon subsequent renewal for total period of five years, from the petitioner brings the present case within the purview of sub-rule (2) of Rule 5 entitling him to renewal and giant of licence for 10-15 years. 20. Next stand of the petitioner is that there is equity in his favour and he is entitled to equitable relief in writ jurisdiction looking to the facts and circumstances which I have narrated above while dealing with the contentions of the parties. I may reiterate taking the help from the averments in the affidavit which is not traversed by the respondents by counter affidavit and which must be taken to have been been admitted that since the respondents failed to supply the fish seeds well in time as is evident from the admitted position in Annexures 11 to 14 and certificates and which too has not been denied by the departmental representative who was present in court on 29.8.1990. the petitioner spent huge expenditure in purchasing fish seeds and put in 3 lacs fish seeds purchased from Calcutta in 1988-89 (admitted vide Annexure 14) and 1 lac fish-seeds in 1988 (admitted vide Annexure 11) and dropped 1,50,000/- fish seeds on 5.8.89 (admitted vide Annexure 12). the petitioner spent huge expenditure in purchasing fish seeds and put in 3 lacs fish seeds purchased from Calcutta in 1988-89 (admitted vide Annexure 14) and 1 lac fish-seeds in 1988 (admitted vide Annexure 11) and dropped 1,50,000/- fish seeds on 5.8.89 (admitted vide Annexure 12). Moreover, admittedly and undisputedly on account of the vagaries of nature and drought in Rajasthan for last more than five years due to scarcity of the rains, the water level of the dam in question remained too low and thereby the fish-seeds dropped in water by the petitioner by spending huge expenditure did not grow to its required size and weight, inasmuch as the water level was not capable of sustaining the productivity rate in existence during grant of lease and the productivity of the tank was not maintained on account of the lapse of the respondents and lack of water, the petitioner could not derive any benefit out of his efforts made in development of the farm apart from its maintenance without any loss to the revenue to the State. 21. On August 16, 1990, during the course of the arguments, the contention on behalf of the petitioner that even after putting fish-seeds in water the petitioner could not be able to get and catch a single fish because of descending productivity rate of the tank/water, the fish could not develop to its required weight, could not be denied by the department verbally and both the parties were afforded an opportunity to file an affidavit. The petitioner however, filed his affidavit on 23.8.90 in support of his contentions but the same was not traversed by the respondent-department and in this view of the matter, the contention of the petitioner is taken to have been admitted. 22. Admittedly, the petitioner paid annual lease value worth Rs. 5000/- at the beginning and thereafter for every subsequent year and renewals an increase of 5% over the annual lease value of previous year has been paid by the petitioner, and the petitioner acted on the representation of the department that they would supply fish-seeds to the petitioner in terms of the lease/licence but the same was not supplied and the petitioner was refused and forced to purchase the same from the market at increased rates. There is no dispute that the petitioner has also, besides spending on fish-seeds, incurred heavy expenditure in the works of repair, renovation and maintenance of the pond by engaging labour in a considerable numbers continuously and the petitioner could not have worked even for a single day in last two years and could derive no benefit except to catch fishes weighing only 75 kgs. during a span of last five years, as has been averred in an untraversed affidavit of the petitioner, because, of the descending productivity rate of the water due to vagaries of the nature and drought in Rajasthan. Having benefited by the enlightments derived from the facts and circumstances of the case, it can also not be disputed that the present productivity of the dam has increased only on account of efforts of the petitioner-the benefit of which is now being claimed by the respondents and the respondents are trying to auction the Raipur dam for transferring the rights of fishing to some other persons. In my view, that cannot be permitted and the petitioner cannot be deprived of the fruits of his efforts for fishing. The petitioner being poor farmer should not be made to suffer on account of the lapses on the part of the respondents for their inability to supply fish-seeds and provide other resources for better productivity of the water as taken note of in earlier part of the judgment, and the respondents are estopped from denying the renewal of the licence to the petitioner. The licence albeit ought to and should have been granted for 10-15 years and even otherwise, on account of the fact that the petitioner had not been able to get and derive any benefit of the fish-seeds dropped in water by him after purchasing from market at higher rates than that of the department, and out of his efforts made by him to develop the farms and pond, and in this view of the matter, also, the petitioner deserves renewal of his licence for further term. That apart, the equity lies in favour of the petitioner and the respondents on account of their lapses pointed above are therefore estopped from challenging the equitable rights of the petitioners and they cannot be allowed to gain fruits from the efforts of the petitioner. 23. That apart, the equity lies in favour of the petitioner and the respondents on account of their lapses pointed above are therefore estopped from challenging the equitable rights of the petitioners and they cannot be allowed to gain fruits from the efforts of the petitioner. 23. For reasons stated (supra), I am of the opinion that it will be fair and just that the petitioner be allowed to fish in the Raipur dam water for further period of three years on payment of licence fee prescribed under the Rules and in terms of the licence of the petitioner. 24. In the result, this writ petition succeeds and is allowed. The respondents are directed to renew the licence of the petitioner for further period of three years on approved terms and conditions and till and orders of renewal as ordered above by this Court are passed, they are restrained from disturbing the petitioner for fishing at the Raipur dam (district Sikar). It is further directed that in case the petitioner again applies for further extension after expiry of the afore ordered renewal then the respondents will be at liberty to grant him further renewal according to rules after obtaining opinion of the technical expert for classification of the water of the Raipur dam keeping in view the water level and productivity rate. 25. No order at to costs.Petition Allowed. *******