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2016 DIGILAW 1543 (ALL)

Radheshyam v. State of U. P.

2016-04-25

RAN VIJAI SINGH

body2016
JUDGMENT Ran Vijai Singh,J. Heard Sri Anil Kumar Mishra, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Devi Prasad Mishra as intervener, who has also filed impleadment application. 2. Through this writ petition, the petitioner has prayed for issuing a writ of mandmaus commanding the respondents to issue licence/permit in favour of the petitioner in respect of pond situated at Gata No. 52-M measuring about 1.752 hectare situated in Village Pure Manohar, Tehsil and District Bhadohi. 3. The facts of this case, in brief, are that there is a pond over Plot No. 52-M measuring about 1.752 hectare situated in village Pure Manohar, Tehsil and District Bhadohi. For the purposes of performance of fisheries right, an advertisement was made in Dainik Jagran newspaper on 4.9.2012 along with other ponds situated in different villages of the concerned Tehsil fixing 10.9.2012. It is stated that the petitioner participated in the proceeding and offered highest bid of Rs. 1,42,200/- for the period of ten years. Pursuant thereto, the petitioner has also sown seeds of fish in the pond and invested huge money but thereafter he has not been permitted to perform fishery right upon the aforesaid pond. 4. Considering the petitioner's case, learned Standing Counsel was directed to seek instructions on 13.2.2015. Pursuant thereto, learned Standing Counsel has sought instructions duly signed by District Magistrate, Sub-Divisional Officer and Tehsildar Bhadohi in which it is stated that the facts as stated are false and there is no such record available in the office of Tehsil Bhadohi and alleged deposit of money is also not proved from the record and in this regard, a complaint case has also been filed. On the line of aforesaid instructions, later on a counter affidavit has also been filed by the respondents no. 2, 3 and 4. 5. The petitioner, herein, has filed reply to the instructions in which he has denied the allegations made in the instructions. In his submissions, the petitioner has offered Rs. 1, 45,200/- and thereafter he also deposited 1/4 amount i.e. Rs. 35,550/-. In this regard, the statement of Sub-Divisional Officer has also been brought on record supporting the stand taken by the petitioner. 6. In his submissions, the petitioner has offered Rs. 1, 45,200/- and thereafter he also deposited 1/4 amount i.e. Rs. 35,550/-. In this regard, the statement of Sub-Divisional Officer has also been brought on record supporting the stand taken by the petitioner. 6. One Sri Buddha Prakash has also filed impleadment application, through Sri Devi Prasad Mishra, Advocate, on the ground that a lease was executed in his favour of the same pond on 24.5.2004 for the period of ten years, which according to him, has expired on 24.5.2014. 7. Learned counsel for the petitioner, in response thereto, submitted that the aforesaid lease is forged and in this regard, adjudication has also been made by the District Magistrate. Sri Mishra also submitted that he may be granted time to file rejoinder affidavit to the counter affidavit filed by the State. Counter affidavit was received by the petitioner way back in July, 2015 but no rejoinder affidavit has yet been filed. 8. However, considering the facts and circumstances of the case, I am not inclined to grant any further time to file rejoinder affidavit for the reasons that the government order dated 17.10.1995, on which basis lease-deed was executed in favour the petitioner, lays down certain priorities which is based on caste line which is meant for the upliftment of downtrodden people belonging to macchuwa community and in absence of macchuwa commnuinty, the cooperative societies of macchuwa community, the other caste has also been permitted to participate in the proceedings in absence of above two, the government order also provides that the lease should be executed in favour of the persons belonging to the poorest category of that very caste, meaning thereby, the person having lowest income has to be preferred. 9. The validity of aforesaid government order was challenged before this Court and taking note of the contradictory decisions on this point impressing upon the open auction for settlement of fishery lease and another on the basis of the government order, the matter was referred to the Full Bench in the Case of Ram Kumar and Others Vs. State of U.P. and Others ( 2005 (99) RD 823 ). 10. State of U.P. and Others ( 2005 (99) RD 823 ). 10. Before the Full Bench, the State Government took the stand that the object of the government order is not to earn revenue out of these settlement of lease but the object behind it is the upliftment of downtrodden people of macchuwa communities and in absence of that, other communities mentioned in the government order, that argument was accepted and the State has been permitted not to settle the lease through open auction. It would be appropriate to quote the observation made by the Full Bench, which reads as under : - “From the above pronouncements made by the apex Court, it is well settled that restrictions imposed to give effect to the constitutional goals as laid down in Directive Principles of State Policy are restrictions with intention to give certain benefits to weaker section of the society which are reasonable restrictions which does not infringe any right of individual citizen under Article 19(1)(g). The rights under Article 19(1)(g) are not absolute rights. As noted above, every individual has also right of consideration but according to preference laid down in the Government orders issued under Section 126 of the 1950 Act. The preferences have been provided in the scheme of the Government with object of providing livelihood to fishermen and fishermen cooperative societies. The view of the Division Bench in Panchoo's case (supra) and other cases that unless fishing right is not settled by auction it will violate Article 19(1)(g) is not correct. The settlement of fishing right by auction will necessarily be in favour of a person giving highest bid. The big contractors and moneyed persons will steal a march over poor fishermen and other poor people of the village who are unable to organise themselves and the result would be that a sizeable section of fishermen and other communities will be deprived of their livelihood. To stop the settlement from going into the hands of big contractors and middlemen, the scheme was enforced by the State Government. The scheme has rational nexus with the object sought to be achieved and the persons for whose benefits the scheme has been framed definitely falls in a separate class having intelligible differentia. To stop the settlement from going into the hands of big contractors and middlemen, the scheme was enforced by the State Government. The scheme has rational nexus with the object sought to be achieved and the persons for whose benefits the scheme has been framed definitely falls in a separate class having intelligible differentia. The settlement of fishing right in ponds and tanks by public auction cannot be held to serve the purpose and object nor the same can carry forward the goals as laid down in the Directive Principles of State Policy. Mere getting more revenue by public auction is not only object for letting out the fishing right. The objective as displayed from the directions of the State Government under Section 126 of 1950 Act is to provide livelihood to fishermen and other similar communities and also to give preference to the cooperative societies of such fishermen so that they may organise themselves and carry on their traditional vocation for the benefit of large part of weaker section of the society. We are, thus, of the clear opinion that the directions issued by the State Government under Section 126 of 1950 Act read with Rule 115-A of 1952 Rules, as noted above, does not violate rights of any person under Article 19(1)(g) and Article 14 of the Constitution of India and the view expressed by the Division Bench in Panchoo's case (supra) and Abdul Gaffar's case (supra) in so far as they hold the settlement of fishing right only by way of public auction does not lay down the correct law. As noted above, the view in the aforesaid judgments as well as the view expressed in Ajai Sonkar's case (supra) and in Gram Panchayat Kanta's case (supra) that the renewal of lease is not permissible is absolutely correct and the same view has found favour with the Full Bench judgment of this Court in Feru's case (supra).” 11. As noted above, the view in the aforesaid judgments as well as the view expressed in Ajai Sonkar's case (supra) and in Gram Panchayat Kanta's case (supra) that the renewal of lease is not permissible is absolutely correct and the same view has found favour with the Full Bench judgment of this Court in Feru's case (supra).” 11. Interpreting the Full Bench, number of judgments have been pronounced on the point wherein it has been held that auction is permissible only in those cases where person belonging to the same caste are having the same income and general auction has not permitted even amongst the applicants belonging to the same caste, meaning thereby caste certificate and income certificate are like two wheels of a chariot which is meant for carrying out the object of government order dated 17.10.1995. 12. Here, according to the petitioner's own case, it has nowhere been stated that what is his income and in the State's counter too, the factum of auction itself has been denied. Otherwise also, the petitioner belongs to schedule caste and there is nothing to suggest that as to why lease was not granted to a person of first category. 13. Otherwise also, as would appear from the own submission of the learned counsel for the petitioner, the advertisement was made on 4.9.2012 fixing 10.9.2012 for auction. In this short span of time, nobody could obtain income certificate and caste certificate. 14. In these circumstance, even if it is assumed that the auction took place as per submission of the petitioner, in my opinion that is nothing except the proceeding dehors the government order dated 17.10.1995, which legally carries no weight. 15. In this short span of time, nobody could obtain income certificate and caste certificate. 14. In these circumstance, even if it is assumed that the auction took place as per submission of the petitioner, in my opinion that is nothing except the proceeding dehors the government order dated 17.10.1995, which legally carries no weight. 15. In paragraph 17 of the writ petition, although the petitioner has stated that a lease has been executed in his favour and in another paragraph it is stated that fish seeds have also been sown but on being confronted as to where is the copy of lease, learned counsel for the petitioner could not show the lease as alleged in paragraph 17 of the writ petition, in my opinion, unless the lease was executed in favour of the petitioner and possession was handed over to him, there was no occasion for him to sow the seed of fish as even according to the government order, recommendation of the Committee has to be approved by the Sub-Divisional Officer and only thereafter lease is to be executed. 16. It may be noticed that according to the petitioner' case, nobody is operating the pond since September, 2012 and according to the case of Buddha Prakash since 25th May, 2014, there are huge loss of the revenue of the State, whichever is meant to be received through these auctions. 17. Considering the facts and circumstances of the case, I refuse to issue a writ of mandamus as prayed for. The Sub-Divisional Officer Tehsil Bhadohi is directed to initiate fresh proceeding for settlement of fishery lease over pond at Plot No. 52-M measuring about 1.752 hectare situated in village Pure Manohar, Tehsil and District Bhadohi and complete the same expeditiously but not later than four months from the date of receipt of certified copy of the order of this Court. 18. Sri B.K.Yadav, learned Standing Counsel is directed to communicate this order to the District Magistrate and Sub-Divisional Officer Bhadohi. 19. It may be clarified that I have not addressed myself on the question of validity of the alleged lease executed in favour of Sri Buddha Prakash or deposit of money pursuant to the alleged auction dated 10.9.2012 by the petitioner and it will be open for them to proceed in accordance with law. 20. The writ petition is dismissed.