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2015 DIGILAW 1453 (ALL)

Bhola v. State of U. P.

2015-05-29

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. Heard Shri Ganga Bhushan Mishra, learned counsel for the petitioner and Shri R.S. Chauhan, who appears for the respondent no. 5 and learned Standing Counsel for the State-respondents. 2. This writ petition has been filed for quashing the auction proceedings held on 17.10.2014 for grant of fishery lease as also the order of the Sub Divisional Officer dated 22.10.2014 accepting the bid of the respondent no. 5. 3. The primary ground of challenge is that no proper advertisement was made before the auction was held. The auction proceedings therefore were vitiated being contrary to the procedure laid down by the Full Bench of this Court. 4. When the petition came up for admission, learned Standing Counsel was directed to obtain instructions as also bring on record the advertisements that were said to have been published prior to the auction proceedings. A copy of the instructions received by the learned Standing Counsel was made available for perusal by the Court. The same was taken on record. 5. Additionally a counter affidavit has been filed on behalf of the respondent no. 5. Both the instructions, as also the counter affidavit contain copies of the alleged advertisements and I have examined the same. Such examination reveals that an auction advertisement was published in Daily Swatantra Bharat dated 14.10.2014. This is an auction notice. The other newspaper cutting which has been filed is a news item published in Daily Hindustan on 13.10.2014. It would be relevant to note that this is a mere news item and not an advertisement specifying the date time and place of the auction. This news item states that auction of ponds will start from 17th October, 2014. This news item also states that information has been received from the Registrar, Keshav Singh that auction proceedings of ponds situated in Neelameepnagra, Nandwara, Sidhilla, Devrar and Padmai will start from 17th October, 2014. No other detail has been mentioned therein and it is on the strength of the aforementioned fact that learned counsel for the petitioner has submitted that although under law and in view of the Full Bench decision of this Court the advertisement was necessarily required to be published in two newspapers which has not been done. The advertisement of the auction has been published in only one newspaper. The advertisement of the auction has been published in only one newspaper. The other alleged advertisement is a mere news item and such a news item does not amount to substantial compliance of the directions and requirements for the auction of a fishery lease and, therefore, the entire proceedings are liable to be set aside. 6. Shri K. S. Chauhan, learned counsel for the respondent no. 5, who was highest bidder in the auction and in whose favour the lease has been settled, has submitted that the area of the ponds auctioned was in excess of two hectares. The relevant government orders in this regard provide that a fishery lease of a pond which has an area of more than two hectares is to be settled in favour of a cooperative society. The respondent no. 5 is such a cooperative society. He has also submitted that several cooperative societies had participated in the auction, wherein the bid of the respondent no. 5 being highest, has been duly and rightly accepted. He further submits that since the petitioner is not a cooperative society, he is not entitled to the grant of the fishery lease in his favour and therefore not an aggrieved party. He therefore has no locus to challenge the auction and the writ petition therefore merits dismissal. 7. Learned Standing Counsel appearing for the State-respondents tried to justify the auction proceedings on the ground that the auction notice had been published in two newspapers. He has however ultimately conceded that advertisement was in fact, published in only one newspaper and that the alleged advertisement dated 13.10.2014 published in Daily Hindustan was not an advertisement but a mere news item. 8. He has further admitted that this news item only mentions that the auction proceedings regarding ponds in the various village are to commence from 17.10.2014. Separate and specific dates for the auction of each individual pond was not mentioned in the news item. 9. I have considered submissions made by the learned counsel for the parties and have perused the records. 10. This Court in the Full Bench decision rendered in the case of Ram Kumar and specially in paragraph 19 thereof, has laid down that a fishery lease is to be granted on the basis of a public auction held after wide publicity. I have considered submissions made by the learned counsel for the parties and have perused the records. 10. This Court in the Full Bench decision rendered in the case of Ram Kumar and specially in paragraph 19 thereof, has laid down that a fishery lease is to be granted on the basis of a public auction held after wide publicity. For the purposes of wide publicity it has been provided that the auction notice should be published in two newspapers. 11. From what has been noticed herein above, this Court has no hesitation to holding that the auction notice was published in only one newspaper. The second alleged notice is not an auction notice. It is a mere news item and even otherwise this news item is vague inasmuch as it does not specify the specific dates on which the auction of the various ponds was to be held. It merely states that auction proceedings for settling the fishery lease of ponds in various villages is to the commence from 17th October, 2014. In my considered opinion, this does not amount to substantial compliance of the directions continued in the Full Bench decision of this Court in the case of Ram Kumar (supra) and therefore the auction proceedings cannot be sustained. 12. The contention of learned counsel for the respondent that the petitioner is not an aggrieved person since he is not entitled for grant of a fishery lease of the pond in question, which could be granted only to a registered cooperative society, in my considered opinion is of no relevance. 13. Once a specific procedure has been prescribed for the grant of a fishery lease, the authorities are bound to follow the procedure in its entirety. Any deviation from the prescribed procedure necessarily vitiates the auction proceeding and it is therefore liable to be set aside. 14. Once a substantial deviation from the prescribed procedure is established and the auction proceedings are therefore found to be vitiated, there appears to be no justification for upholding the auction on the ground that the person complaining of the irregularity has no locus in the matter. 14. Once a substantial deviation from the prescribed procedure is established and the auction proceedings are therefore found to be vitiated, there appears to be no justification for upholding the auction on the ground that the person complaining of the irregularity has no locus in the matter. In case, law prescribes a procedure for doing a thing, the authorities concerned are bound to to follow the procedure because it is settled law that a thing that is required to be performed in a particular manner must necessarily be performed in that manner or not at all. It is in this context that I consider the submissions made by learned counsel for the respondent no 5, to be inconsequential. 15. In view of the discussion above, I am constrained to hold that the auction dated 17.10.2014 was held without the auction notice having been published in two newspapers. The said auction as also the approval granted by the Sub Divisional Officer in accepting the bid of the respondent no. 5 cannot be sustained and must necessarily be set aside. 16. I therefore set aside the impugned auction dated 17.10.2014 and direct the respondents to hold a fresh auction strictly in compliance with the law in this regard. If therefore follows that the fresh auction should be held after wide publicity consequent to publication of the auction notice in two newspapers. 17. It is further provided that the auction must be held expeditiously, preferably within a period of one month from the date of production of the certified copy of this order is filed before the respondents. The writ petition is allowed. There will however, be no order as to costs.