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Allahabad High Court · body

2015 DIGILAW 2549 (ALL)

Munna Kahar v. Board of Revenue, U. P, Allahabad

2015-08-21

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri D.R.S. Chauhan for the petitioner, Standing Counsel for respondents no. 1 and 2, Sri R.C. Upadhyay for respondent no. 3 and Sri A.P. Singh for respondent no. 4. 2. The writ petition has been filed against the order of Board of Revenue U.P. dated 29.06.2015 by which revision filed by respondent no. 4 against the order of Collector dated 01.10.2014 cancelling the fisheries lease of respondent no. 4 has been allowed and the order of Collector has been set aside. 3. The dispute relates to a pond on plot no. 206 area 0.696 hectares of village Vyawahra, Pergana-Devgaon, Tehsil-Lalganj, District-Azamgarh. On behalf of Collector a notification in newspaper has been published on 09.06.2013 for auction of the ponds of various villages, in which pond of plot nos. 140, 190, 206, 241, 369 and 596 of village Vyawahra were also notified for auction. The date of auction was fixed as 25.06.2013. In the report of the Tehsildar dated 14.07.2013 submitted to Sub-Divisional Officer, it has been mentioned that on 25.06.2013 two persons namely Ram Lautan and Om Prakash moved an application for participation in the auction in respect of pond of plot no. 206. Since the auction of various ponds were scheduled to be held on 25.06.2013, as such the auction of pond of plot no. 206 could not be held on 25.06.2013 and the participants were called upon for auction on 04.07.2013. On 04.07.2013 the highest bid of Ram Lautan (respondent no. 4) was accepted which was approved by Sub-Divisional Officer by order dated 14.07.2013 and in pursuance thereof the fisheries lease had been granted to Ram Lautan (respondent no. 4). Thereafter, Munna Kahar, the petitioner filed an application dated 11.02.2014 before the Collector, Azamgarh for cancellation of fisheries lease of Ram Lautan dated 13.07.2013 - 14.07.2013 registered on 01.08.2013. It has been stated in the application that the fisheries lease has been granted to respondent no. 4 on 13.07.2013 - 14.07.2013 without following any procedure. Respondent no. 4 is a prosperous person and living in Bombay and he was not eligible for grant of fisheries lease. The application was got dismissed as withdrawn by order dated 12.06.2014. Thereafter, the petitioner filed Writ Petition No. 33553 of 2014 before this Court for cancellation of the fisheries lease dated 13/14.07.2013 of respondent no. 4. Respondent no. 4 is a prosperous person and living in Bombay and he was not eligible for grant of fisheries lease. The application was got dismissed as withdrawn by order dated 12.06.2014. Thereafter, the petitioner filed Writ Petition No. 33553 of 2014 before this Court for cancellation of the fisheries lease dated 13/14.07.2013 of respondent no. 4. In this writ petition, filing of the application before the Collector for cancellation fishery lease and its dismissal as withdrawn, have not been disclosed. The writ petition was dismissed by order dated 17.07.2014 giving liberty to the petitioner to file an application for cancellation of fisheries lease before the Collector and it was observed that in case the application is filed within two weeks along with certified copy of the order then the District Magistrate was to decide the same in accordance with law without entertaining any objection of limitation, within a period of three months. Thereafter, the petitioner filed the application before the District Magistrate on 06.08.2014 under Section 198 (4) of U.P. Act No. 1 of 1951 for cancellation of fisheries lease of respondent no. 4. The application of the petitioner was heard by District Magistrate who by order dated 01.10.2014 found that in the publication dated 09.06.2013 the date of auction was fixed as 25.06.2013. Thereafter, without any order and information the date of auction was postponed for 04.07.2013, due to which apart from two persons namely Ram Lautan and Om Prakash who were uncle and nephew, no other person had participated in the auction. Thus the proper publication of auction has not been made and due to which it appears that the auction was held in collusive manner. On this finding he allowed the application of the petitioner and set aside the fisheries lease of Ram Lautan, respondent-4 and directed for taking proceeding of fresh auction and allotment of the fisheries lease of pond of plot no. 206. 4. Ram Lautan filed a revision registered as Revision No. 11 of 2014-2015 against the aforesaid order before the Board of Revenue. The Board of Revenue by the impugned order dated 29.06.2015 held that the proper publication for auction for pond of plot no. 206 made in the newspaper on 09.06.2013 fixing a date as 25.06.2013 and on that date the auction could not be held. The Board of Revenue by the impugned order dated 29.06.2015 held that the proper publication for auction for pond of plot no. 206 made in the newspaper on 09.06.2013 fixing a date as 25.06.2013 and on that date the auction could not be held. As such the auction was held on 04.07.2013 for which the Gaon Sabha had no objection. The allottee Ram Lautan (respondent no. 4) is a man of scheduled caste. The petitioner has already not pressed his previous application filed for cancellation of fisheries lease and the present application was not filed within two weeks from the order of High Court. All theses facts have not been considered by the Collector. On these findings he allowed the revision and set aside the order of Collector dated 01.10.2014. Hence this writ petition has been filed. 5. Counsel for petitioner submits that the provisions of Code of Civil Procedure is not applicable in the proceedings under Article 226 of the Constitution as held by Supreme Court in Puran Singh Vs. State of Punjab, AIR 1996 SC, page 1092 as well as by this Court in Writ-B No. 11484 of 1983 Ayodhya & Another Vs. Joint Director of Consolidation and Others decided on 19.11.2013. As such the order of dismissal of earlier application as withdrawn filed by the petitioner, does not affect the right of the petitioner in challenging the fisheries lease in the writ petition. The second application has been filed in pursuance of the liberty given by this Court in Writ B No. 33553 of 2014, as such second application was maintainable. The Collector has recorded the finding that no public notice has been given of the date fixed for auction i.e. 04.07.2013. Thus, in view of Full Bench decision of this Court in Ram Kumar and Others Vs. State of U.P. 2005 (99) RD 823 =2006 All. C.J. 123, wide publication of auction of fisheries lease has not been made and the finding recorded by the Collector in this respect does not suffer from any illegality. The Board of Revenue in exercise of revisional jurisdiction has illegally set aside the finding of the Collector. He submits that admittedly in publication dated 09.06.2013, the date of auction was fixed as 25.06.2013, on that date the auction was not held rather it was held on 04.07.2013. The Board of Revenue in exercise of revisional jurisdiction has illegally set aside the finding of the Collector. He submits that admittedly in publication dated 09.06.2013, the date of auction was fixed as 25.06.2013, on that date the auction was not held rather it was held on 04.07.2013. As such the respondents were required to give fresh notice through publication of the next date fixed. Due to not publishing the notice for auction of second date only two persons who were family members being uncle and nephew participated in the auction and this was a collusive auction and therefore the proper consideration has not come. In any case, the eligible persons were deprived from participating in the auction, the order of the Collector was not liable to be set aside by the Board of Revenue. 6. I have considered the arguments of the counsel for petitioner and examined the records. 7. The Order XXIII Rule 1 (4) C.P.C. provides that in case the liberty has not been granted for instituting fresh suit in respect of the subject matter of the suit then the order of dismissal of the suit as withdrawn will preclude the plaintiff from instituting any fresh suit in respect of such subject matter. By virtue of Section 341 of the U.P. Act No. 1 of 1951 provisions of Civil Procedure Code are made applicable in the proceeding under the U.P. Act No. 1 of 1951. The application for cancellation of fisheries lease has been filed by petitioner under Section 198 (4) of U.P. Act No. 1 of 1951 which was got dismissed as withdrawn. Thus the provision of Order XXIII Rule 1 (4) C.P.C. is fully applicable to the petitioner and without there being any liberty the writ petition was not maintainable. The petitioner has not disclosed the fact that his earlier application was dismissed as withdrawn therefore the order of this Court has obtained on concealment of material facts. The case law relied upon by the petitioner which is in respect of proceeding under Section 226 of the Constitution has no application in this case. The proceeding was taken under Section 198 (4) of U.P. Act No. 1 of 1951 over which provisions of Civil Procedure Code was fully applicable. 8. The case law relied upon by the petitioner which is in respect of proceeding under Section 226 of the Constitution has no application in this case. The proceeding was taken under Section 198 (4) of U.P. Act No. 1 of 1951 over which provisions of Civil Procedure Code was fully applicable. 8. So far as the contention of the petitioner is that the date of auction was postponed and 04.07.2013 was the date fixed and no notice of postponement of the date has been given by publication, is concerned, a perusal of the report of the auctioning authority dated 14.07.2013 shows that on 25.06.2013 the application of the persons who were willing to participate in the auction were taken in which only two applications were taken i.e one application of Ram Lautan (respondent no. 4) and the other application of Om Prakash and the auction dated 04.07.2013 was held in pursuance of applications taken on 25.06.2013. The proceeding has been started on 25.06.2013 and only due to paucity of time the auction was postponed. In such circumstances, it can not be said that it was a fresh date which requires fresh publication of notification. The Collector has ignored the report of the auctioning authority and recorded a finding that the auction was postponed. 9. A perusal of the application filed by the petitioner dated 11.02.2014 shows that the petitioner has not participated in the auction dated 25.06.2013. Thus the finding of the Collector has been set aside by the Board of Revenue. It may also be mentioned that the area of the pond of plot no. 206 is 0.696 hectares and it was auctioned for Rs. 8,000/- (Rupees Eight Thousand Only) which was more than the rate fixed by this Court. Thus the order of the Board of Revenue does not suffer from any illegality. 10. No interference is required by this Court. The writ petition is dismissed.