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2013 DIGILAW 2275 (ALL)

RANJEET SINGH v. STATE OF U. P.

2013-09-12

A.P.SAHI

body2013
JUDGMENT Hon’ble A.P. Sahi, J.—Heard Sri Vijay Kumar, learned counsel for the petitioner, learned Standing Counsel for the respondent Nos. 1 and 2, and Sri D.P. Tripathi holding brief of Sri P.K. Shukla for the respondent No. 4. No one has appeared on behalf of the Gaon Sabha even though a counter-affidavit has been filed. Affidavits have been exchanged between the parties. The matter has been heard in the light of the interim order passed on 20.4.2010 and 5.5.2010. 2. The petitioner was a lease-holder of fishery rights over the disputed pond bearing Revenue No. 133 Area 1.569 hectares. The said pond is said to have been settled in favour of the petitioner, the period of lease being uptil 29th May, 2011. It is the said lease which came to be cancelled vide order dated 31st October, 2009 and the pond came to be resettled in favour of the respondent No. 4 on 8.1.2010 that became subject-matter of challenge in the present writ petition. 3. Mala fides were alleged against the Sub-Divisional Officer who had approved the said settlement in favour of the respondent No. 4 and had cancelled the lease of the petitioner. 4. Having noticed all the facts in detail, since the only challenge raised was against the order dated 8.1.2010 approving the lease in favour of the respondent, the following order was passed on 20.4.2010: “Notices on behalf of respondent Nos. 1, 2 and 3 have been accepted by the learned Standing Counsel and learned counsel for Gaon Sabha. Two weeks’ time is granted to them to file a counter-affidavit. Issue notice to respondent No. 4. Steps within a week. The dispute relates to gata No. 133 area 1.569 hectare which is a pond. The case of the petitioner is that the said pond was settled for pisciculture operation and the lease is going to expire on 29.5.2011. The said pond has been taken on lease at the rate of Rs. 10,000/- per hectare per annum as per guidelines laid by this Court in the case of Ram Kumar and others v. State of U.P. and others, 2009(107) RD 557. Grievance of the petitioner is that the said lease was cancelled and the matter is pending consideration before the revising authority in a revision wherein interim order has been granted in favour of the petitioner. Grievance of the petitioner is that the said lease was cancelled and the matter is pending consideration before the revising authority in a revision wherein interim order has been granted in favour of the petitioner. However, the respondents, being in collusion with each other, settled the lease of the said pond for a paltry sum of Rs. 4,000/- in favour of respondent No. 4. Learned counsel for the petitioner very fairly offered that the petitioner is prepared to pay a sum of Rs. 20,000/- per annum for the remaining period i.e. for the year 2010-2011 ending on 29.5.2011. Learned counsel for the petitioner also raised certain grievances against the working of Sub Divisional Officer, Tehsil Dhampur District Bijnor and submits that the said officer in other matters has also acted arbitrarily. He further pointed out that an explanation was called from the said officer in writ petition No. 11898 of 2010-Janta Fish Mahigiri Matsyajii Sahkari Samiti v. State of U.P. and others, wherein the earlier explanation furnished by the officer was not found satisfactory and he was asked to furnish better explanation. The matter is still subjudice before this Court. He also brought to the notice of the Court the judgement of this Court in the case of Harpal and others v. State of U.P. and others, 2010 All CJ 201, wherein this Court made the following observations against the same officer : “D.M./Collector Bijnore is directed to examine the working of all the S.D.Os. in his district particularly the S.D.O. who passed the order dated 16.1.2009.” The District Magistrate is, therefore, required to submit an explanation as to what action has been taken against the concerned S.D.O. in the light of the observations made by this Court. Taking into consideration the work and conduct of the S.D.O. Tehsil Dhampur District Bijnor, it is desirable that he should be restrained till further orders not to accord any approval to the recommendations made for the purposes of granting lease of fisheries right to any person. The said power may be delegated to another officer or may be exercised by the Collector Bijnor himself. List on 5.5.2010. Till further orders, the effect and operation of the impugned order dated 8.1.2010 shall remain stayed. The respondents are restrained from interfering in the working of the petitioner with regard to pisciculture operation of the pond in question, provided he deposits Rs. List on 5.5.2010. Till further orders, the effect and operation of the impugned order dated 8.1.2010 shall remain stayed. The respondents are restrained from interfering in the working of the petitioner with regard to pisciculture operation of the pond in question, provided he deposits Rs. 20,000/- within a period of three weeks. A copy of this order may be given to the learned Standing Counsel for communication to the officer concerned.” 5. Since no affidavit had been filed therefore the Court again passed an order on 5.5.2010 which is to the following effect : “This Court on 20th of April, 2010 passed a detailed order asking the District Magistrate/Collector, Bijnor to submit an explanation. Sri Rajesh Kumar, learned brief holder on behalf of the State of U.P., submits that the said order was communicated to the officer concerned but there is no response from his side. It appears that the District Magistrate and the Sub Divisional Officer, Tehsil Dhampur, District Bijnor are sitting tight over the matter for the reasons best known to them. By way of last opportunity, a week’s further time is granted to them to comply with the order dated 20th of April, 2010 by filing the stand in the light of the said order. If the Collector fails to file reply, he is required to appear in person on 18th of May, 2010. A copy of this order may be given by the office free of charge to Sri Rajesh Kumar, brief holder.” 6. Two counter-affidavits were filed dated 18th May, 2010 through Man Singh Pundir, the Tehsildar and another affidavit by the same official dated 18th May, 2010 which is in Hindi. 7. During the pendency of this writ petition, it appears that the petitioner had also filed a revision against both the orders dated 31.10.2009 and 8.1.2010 before the Commissioner being Revision No. 99 of 2009-10. A certified copy of the order passed in the said revision dated 22.9.2010 has been produced before the Court. The revision filed by the petitioner was allowed and the cancellation of the lease of the petitioner was set aside. Simultaneously the order dated 8.1.2010 impugned in the present writ petition was also set aside. 8. While setting aside the orders, the learned Commissioner directed the Sub-Divisional Officer to hear the matter again and pass fresh orders. 9. The revision filed by the petitioner was allowed and the cancellation of the lease of the petitioner was set aside. Simultaneously the order dated 8.1.2010 impugned in the present writ petition was also set aside. 8. While setting aside the orders, the learned Commissioner directed the Sub-Divisional Officer to hear the matter again and pass fresh orders. 9. A writ petition was filed by the respondent No. 4 being Writ Petition No. 74048 of 2010 in which a direction was issued to proceed with the matter. The Sub-Divisional Officer vide order dated 24th January, 2013, certified copy whereof has been produced before the Court, refused to proceed with the same in view of the interim orders passed herein. 10. It is in this background that the present writ petition has now been heard and the learned counsel for the contesting respondents submit that since the period of lease of the petitioner has already expired, the same cannot be continued only on the strength of the interim order passed by this Court. They further submit that a fresh lease can be granted in terms of the full bench decision in the case of Ram Kumar and others v. State of U.P. and others, 2005 (99) RD 823. 11. It has been informed by the learned Standing Counsel and which also appears to be correct from a perusal of the Communication dated 7th May, 2010 itself that the Sub-Divisional Officer who had passed the order dated 8th January, 2010 has already been transferred and a recommendation has been made by the District Magistrate to the Principal Secretary (Appointment) to take appropriate action against the concerned Sub-Divisional Officer. 12. Sri Rajesh Kumar, learned Standing Counsel has produced a written Communication dated 11.9.2013 that Mr. Sanjay Kumar Singh is now functioning as the Sub-Divisional Officer w.e.f. 12.3.2013, and therefore, none of the officers against whom mala fides have been alleged are functioning today. 13. Sri Vijay Kumar Rai, learned counsel for the petitioner submits that as per the directions of the interim order the petitioner has deposited a sum of Rs. 20,000/-, and therefore, compliance having been made the petitioner was bona-fidely continuing with the operation of the lease over the disputed pond. 14. 13. Sri Vijay Kumar Rai, learned counsel for the petitioner submits that as per the directions of the interim order the petitioner has deposited a sum of Rs. 20,000/-, and therefore, compliance having been made the petitioner was bona-fidely continuing with the operation of the lease over the disputed pond. 14. Sri Rai submits that the highhandedness action which had led to the filing of the present writ petition is therefore now established from the affidavits filed on behalf of the respondents and in such circumstances the present writ petition deserves to be allowed. He further submits that the costs should also be imposed on the respondents for the said action which has led to the harassment of the petitioner. 15. Learned counsel for the respondent No. 4 has already raised his submissions and the learned Standing Counsel submits that the apprehension in the mind of the petitioner about any future fault being committed is unfounded and no writ petition should be entertained on mere apprehensions. 16. Having considered these submissions, the order dated 22.9.2010 passed by the Additional Commissioner renders the relief actually claimed in this petition infructuous. The period of the lease admittedly which was executed in favour of the petitioner has come to an end during the pendency of the writ petition on 29.5.2011. The continuance, if any, of the petitioner, therefore, could not be beyond the period that was prescribed in the lease and continuance on the strength of an interim order beyond the period prescribed cannot be permitted in law in view of the decision of the apex Court in the case of Beg Raj Singh v. State of U.P. and others, AIR 2003 SC 833 . 17. In view of the aforesaid settled position of law, since no third party rights have intervened during this period the petitioner cannot claim any further continuance of the operation of the lease in view of the ratio of the decision aforesaid. 18. Consequently, this writ petition in so far as the claim of the petitioner is concerned has become infructuous. 19. So far as the claim of the respondent No. 4 is concerned, it is on record that the order dated 8th January, 2010 has already been set aside by the Additional Commissioner. The said order has attained finality. 20. 18. Consequently, this writ petition in so far as the claim of the petitioner is concerned has become infructuous. 19. So far as the claim of the respondent No. 4 is concerned, it is on record that the order dated 8th January, 2010 has already been set aside by the Additional Commissioner. The said order has attained finality. 20. Even otherwise, in view of the interim orders passed by this Court and the cognizance taken, there is no doubt that the order dated 8th January, 2010 was clearly in violation of law and the settlement could not have been made in favour of the respondent No. 4 in the manner in which it was done by the Sub-Divisional Officer. Consequently, the respondent No. 4 cannot avail of any such benefit in terms of the order dated 8.1.2010. 21. The question now of deciding the matter again by the Sub-Divisional Officer, therefore, does not arise and all proceedings before the Sub-Divisional Officer would also stand consigned accordingly. 22. The only option that is now left is of a fresh auction to be conducted in accordance with the directions issued by this Court right from the decision in the case of Ram Kumar (supra) onwards. 23. Consequently, the writ petition is disposed of with a direction to the competent authority to proceed to advertise the pond in dispute afresh and after inviting applications in accordance with rules, proceed to settle the same in favour of the successful bidder within a period of three months from today. No person would now be henceforth entitled to operate the pond in question till a fresh settlement as directed above is made. —————