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2012 DIGILAW 177 (UTT)

Sehkari Matsya Nidhi Samiti v. Kushal Pal

2012-04-24

V.K.Bist

body2012
JUDGMENT Instant second appeal has been filed against the judgment and decree dated 08.12.2010 passed by Addl. District Judge/1st Fast Track Court, Roorkee in Civil Appeal No. 29 of 2009 as well as the judgment and decree dated 27.11.2009 passed by Civil Judge (Sr. Div.), Haridwar in Original Suit No. 60 of 2004. 2. Brief facts, leading to the appeal, are that the plaintiff/respondent no.1 instituted a suit for prohibitory injunction against defendants (respondent nos. 2 to 4 herein), inter-alia on the ground that for the pond situated in Khasra no. 124 admeasuring 3.323 hectare within village Chudiyala, Mohanpur, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar a proclamation was done on 01.10.2003 and accordingly, a resolution was passed on 08.10.2003 by the Land Management Committee for auctioning the pond on lease to the community belonging to fishermen community. Being the highest bidder, the land was auctioned in favour of the plaintiff and, accordingly, vide order dated 27.11.2003, a registered lease deed was executed by Sub Divisional Magistrate/defendant no.2 in favour of the plaintiff. The plaintiff had deposited the requisite fee and all the money. It has been alleged in the plaint that the respondents are interfering in the functioning of the plaintiff and on 12.03.2004 the Sub Divisional Magistrate, Roorkee has stopped fisheries in the pond. During the proceeding of the suit, the appellant herein impleaded as defendant no.4 in the suit. The defendant nos. 1 to 3 filed their reply to the amended clause of the plaint with the averment that the plaintiff has not specified any cause of action; no notice under Section 80 C.P.C. has been given prior to instituting the suit; relief sought in the suit can only be granted by the Revenue Court; Civil Court has no jurisdiction to try the suit; after granting lease, the District Magistrate vide order dated 29.05.2004 stayed the sanction of the lease and the suit is barred under Section 38 and 41 of the Specific Relief Act. The defendant no.4 (appellant herein) filed his written statement with the averment that the ponds, whose area is more than that of 2 hectares, can only be allotted to a Sehkari Matsya Samiti and cannot be allotted to an individual. The defendant no.4 (appellant herein) filed his written statement with the averment that the ponds, whose area is more than that of 2 hectares, can only be allotted to a Sehkari Matsya Samiti and cannot be allotted to an individual. The defendant no.4 further asserted in the written statement that Matsya Jeevi Sehkari Samiti, Ltd. Rookee was in existence in Nyay Panchayat, Vikas Khand, Tehsil area Roorkee since 23.11.1995, which was competent/eligible for the allotment of disputed pond. It was averred in the written statement that admittedly, the plaintiff is a person and not the society registered and he was not entitled for the allotment of the pond due to the existence of the registered society. 3. The matter in issue and case before the trial Court was regarding the allotment of pond of more than two-hectare area and Govt. Order dated 04.01.1994, regarding the allotment of ponds of various areas is in force, which was required to be followed, which specifically provides that ponds of more than two hectare area can be allotted only to the registered society of fishermen community of concerned village, where the pond is situated and in its absence, to a registered society of Nyay Panchayat, Vikas Khand and in absence of these, to the member of fishermen community. After framing necessary issues, the parties adduced their oral and documentary evidence in support of their contentions. The learned trial Court vide impugned judgment and order dated 27.11.2009 decreed the suit for prohibitory injunction instituted by the plaintiff/respondent no.1. Against the said order, the appellant preferred Civil Appeal no. 29 of 2009 and the defendant nos. 1, 2 & 3 also preferred Civil Appeal No. 1 of 2010 before the District Judge, Haridwar, which were lateron transferred to the Court of Addl. District Judge/1st Fast Track Court, Roorkee, who vide impugned judgment dated 08.12.2010 dismissed both the appeals and affirmed the order of the trial Court passed on 27.11.2009. Aggrieved with these orders, present second appeal has been filed. 4. District Judge/1st Fast Track Court, Roorkee, who vide impugned judgment dated 08.12.2010 dismissed both the appeals and affirmed the order of the trial Court passed on 27.11.2009. Aggrieved with these orders, present second appeal has been filed. 4. This second appeal has been admitted on the following substantial questions of law to be answered by this Court:- a. As to whether the absence of advertisement in newspaper, as required by full bench in Ram Kumar and others vs. State of U.P. and others, 2005 (99) RD 823 and further relied by the Division bench in Chattu vs. State of U.P. and others, 2010 (109) 603, prior to the auction of pond for fishing purposes, vitiates the auction proceedings, held in favour of respondent no.1? b. As to whether the dissolution of the working committee of a registered society makes the society defunct, non-functional, non est? c. As to whether the appointment of the administrator of the society, whose working committee has been suspended/dissolved, makes the society in existence and eligible for the work for which it was formed and was alone eligible for allotment of disputed pond? d. Whether judgment of learned Lower Appellate Court vitiates due to non-compliance of order 41 Rule 31 C.P.C.? 5. I have heard Mr. Siddhartha Singh, Advocate for the appellant, Mr. V.B.S. Negi, Advocate for the plaintiff/ respondent no.1, Mr. Sushil Vashishtha, Brief Holder for the State and perused the record. 6. Learned counsel for the appellant contended that petitioner-Samiti alone was competent and eligible for the allotment of disputed pond. He contended that neither any advertisement was ever made nor any opportunity was given to the Samiti to participate in the auction proceedings. He contended that the impugned judgments and decree cannot sustain in the presence of replication statement of the plaintiff in which he admitted the existence of the society at the time of disputed allotment proceedings and the execution of the deed in favour of plaintiff, which is hit by the doctrine of traverse and amounts to admission, but the Courts below utterly failed to take notice of such contention of replication paper no. 183A. 183A. He further submitted that, admittedly the pond in dispute has an area of more than 3 hectares, whereas the G.O. dated 04.01.1994 laid down the procedure as well as the list of preference for the allotment of pond more than 2 hectares and less than 2 hectares. He contended that according to said Govt. Order, pond more than 2 hectares can be allotted only to the cooperative society of Nyaya Panchayat, Bolck, Tehsil, District level and in absence of any such society, then alone individuals of fishermen community of the village concerned are eligible, but both the Courts below fell in error by passing the judgment and decree impugned. 7. In Ram Kumar and others vs. State of U.P. and others, 2005 (99) RD 823, the full bench of Allahabad High Court has held that the Revenue Officers, who are entrusted with the duty, shall ensure proper advertisement of the date of settlement so that all persons, who are eligible to participate, have sufficient notice of the proposed settlement and the Sub Divisional Officer himself should see that wide publicity is made. The Division bench in Chattu vs. State of U.P. and others reported in 2010 (109) 603 has held that “as a general rule, the Sub Divisional Officer should publish in a newspaper having wide circulation of the settlement of fishing right to enable all concerned to participate. The Division Bench further held out that it is well settled that the property of the State or its agency is a community property and every citizen of this country has vital interest in its effective use and disposal. As the property is a public property, every citizen has the right to bid for its settlement. A large number of persons, in absence of advertisement, who might have been interested in getting the settlement, were deprived of their right to participate in the auction.” On the other hand, Mr. V.B.S. Negi, Advocate for the plaintiff/respondent no.1 submitted that it is nowhere mentioned in the Govt. Order dated 04.01.1994 that prior to auction, publication is necessary. He contended that the ratio of the judgment of Allahabad High Court, referred above, is in respect of the contracts of the large ponds and same would not apply for the ponds bearing an area of 2 or 3 hectares. Order dated 04.01.1994 that prior to auction, publication is necessary. He contended that the ratio of the judgment of Allahabad High Court, referred above, is in respect of the contracts of the large ponds and same would not apply for the ponds bearing an area of 2 or 3 hectares. He further contended that there is no denial of the defendant no.4/appellant in their written statement that his society was not in existence when open auction had taken place. He contended that the appellant/ defendant no.4, in his written statement, has nowhere challenged the lease granted in favour of the plaintiff/respondent no.1 by the defendant nos. 1 to 3 and the same is still in existence and the plaintiff is entitled for the lease. Learned counsel appearing for the plaintiff/respondent no.1 has further contended that the evidence led by the parties, clearly suggest that at the time of auction proceeding, no other Matsya Jeevi Sehkari Samiti in district level was in existence due to which, after taking required permission from the District Magistrate, Haridwar, in consonance with the Land Management Committee, Chudiyala, Mohanpur on priority basis, in the interest of the public at large, after proclamation, allotment was done in accordance with law. It has come in the order of the Courts below that before conducting the auction in dispute, an auction proclamation was done on 01.10.2003 by the Land Management Committee of the village. The documentary evidence paper no. 16-c & paper no. 17c-1, inasmuch as, the oral evidenced of PW-4 Mehar Chand and DW-1 Omprakash are self-explanatory. A look at paper no. 17c/2, which is the resolution of the Land Management Committee, village Chudiyala, Mohanpur, makes it obvious that besides the plaintiff-Kushal pal, other persons belonging to Kashyap community, namely, Mehar Chand, Ramesh and Sunder Singh, also participated in the auction proceedings and auction was finalized in accordance with law, in the name of the highest bidder. But, no advertisement was issued in the newspaper having wide circulation in the area. Therefore, absence of advertisement in newspaper, as required by full bench in Ram Kumar and others vs. State of U.P. and others, 2005 (99) RD 823 and further relied by the Division bench in Chattu vs. State of U.P. and others, 2010 (109) 603, prior to the caution of pond for fishing purposes, vitiates the auction proceedings held in favour of respondent no.1. The question no. The question no. (a) is answered in affirmative. 8. Learned counsel for the appellant contends that both the Courts below have admitted the existence of registered society Matsya Jeevi Sehkari Samiti Ltd. Roorkee, which had been in existence since 23.11.1995 at Nyay Panchayat, Vikas Khand, Tehsil area Roorkee, which alone is entitled for allotment of disputed pond, but both the Court below fell in error in not recognizing the status of aforesaid registered society, merely on the ground of suspension of the working committee of the society. He further contended that both the Courts below failed to appreciate the difference between the constitution of society and dissolution of working of society and consequent appointment of administrator and mere dissolution of working committee of the society does not make the society non functional or non-est, because the administrator appointed, after the dissolution of society, runs the society. On the other hand, learned counsel for the plaintiff/respondent no.1 contended that on the date of auction, the managing committee of the appellant society was not in existence. Learned counsel for the plaintiff drew my attention towards the oral statement of DW-1 Vijay Kumar, who in his statement has stated that on 08.10.2003, when the resolution about the allotment of the property in question was resolved, his society was not in existence. The documentary evidence paper no. 151A produced by the appellant, itself exhibits that appellant’s society was registered on 22.12.2003, whereas the proclamation of the auction in dispute was done on 01.10.2003 and resolution of Land Management Committee had taken place on 08.10.2003 and on a open auction proceedings, the land in dispute was allotted to the plaintiff/respondent no.1 for ten years, being the highest bidder. The learned trial Court, while deciding the issue nos. 1,2 & 3 has recorded categorical findings that on the date of auction, the managing committee of the appellant society was not in existence. Undisputedly, the appellant and plaintiff belong to the fisherman society. The land/pond in dispute was more than three hectares. Till September, 2003, no application was pending for its allotment. During 2003 to 2005, one and alone registered cooperative society, at block level, was in existence in the name of Matsya Sehkari Samiti Ltd, Roorkee, which was dissolved in the year 2002 due to financial irregularities and Sub Divisional Magistrate, Roorkee was appointed as the administrator for the period. Till September, 2003, no application was pending for its allotment. During 2003 to 2005, one and alone registered cooperative society, at block level, was in existence in the name of Matsya Sehkari Samiti Ltd, Roorkee, which was dissolved in the year 2002 due to financial irregularities and Sub Divisional Magistrate, Roorkee was appointed as the administrator for the period. No other society in the Nyay Panchayat or District level was in existence for taking the lease. I am of the opinion that after the dissolution of the working committee of a registered society though Administrator was appointed but in such situation, no active participation of members is found and Administrator alone takes important decision. Thus, in the facts and circumstances of the case, it is found that there was no active participation of members of the society. The question no (b) is answered in affirmative. 9. It has come in the evidence that after the auction proceedings, the registered lease deed, paper no. 15-A, was executed on 01.01.2004 in favour of the plaintiff/ respondent no.1, which was duly signed by the Sub Divisional Magistrate and Tehsildar, Roorkee. At that time, the one and only registered society was the Matsya Jeevi Sehkari Samiti Ltd. Roorkee, which stood dissolved at that time and Sub Divisional Magistrate, Roorkee was the administrator of the Samiti. Sub Division Magistrate, Roorkee has himself executed the lease in favour of the plaintiff. The evidence led by the parties clearly suggest that at the time of auction proceeding, no other Matsya Jeevi Sehkari Samiti, in district level, was in existence due to which after taking required permission from the District Magistrate, Haridwar, in consonance with the Land Management Committee, Chudiyala, Mohanpur on priority basis and in the interest of the public as large, after proclamation, allotment was made in accordance with law. Hence, after the appointment of the administer of the society, whose working committee has been suspended/dissolved does not makes the society in existence and eligible for the work for which it was formed and was not alone eligible for allotment of disputed pond. The question no. (c) is answered in negative. 10. Hence, after the appointment of the administer of the society, whose working committee has been suspended/dissolved does not makes the society in existence and eligible for the work for which it was formed and was not alone eligible for allotment of disputed pond. The question no. (c) is answered in negative. 10. Learned counsel for the appellant further submitted that the judgment of the 1st Appellate Court vitiates due to non compliance of Order XLI, Rule 31 C.P.C. because the Lower Appellate Court should have framed the point of determination; the decision thereon; the reasons for the decision and where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. Order XLI Rule 31 of Code of Civil Procedure is being reproduced hereinafter:- Order XLI, Rule 31. Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state- (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein. 11. I have gone through the judgment passed by the Lower Appellate Court. The Lower Appellate Court has not stated in his judgment the points for determination. The judgment is also not well discussed. I have no hesitation in saying that judgment of Lower Appellate Court is not in accordance with Order XLI Rule 31 of Code of Civil Procedure. The substantial question no. (d) is answered in affirmative. 12. Consequently, the appeal is allowed. The judgment and decree dated 08.12.2010 passed by Addl. District Judge/1st Fast Track Court, Roorkee in Civil Appeal No. 29 of 2009 as well as the judgment and decree dated 27.11.2009 passed by Civil Judge (Sr. Div.), Haridwar in Original Suit No. 60 of 2004, are hereby quashed. Original Suit No. 60 of 2004 is dismissed with costs.