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2017 DIGILAW 2932 (ALL)

Arvind Kumar Rai v. State of Uttar Pradesh

2017-12-14

B.AMIT STHALEKAR

body2017
JUDGMENT : B. AMIT STHALEKAR, J. 1. Heard Shri Manoj Kumar Singh, learned counsel for the petitioner, learned standing counsel for the respondents no. 1 to 4 and Shri R.C. Upadhyay, learned counsel appearing for the respondent no. 5. 2. The petitioner in the writ petition is seeking quashing of the order dated 28.9.2017 as well as the advertisement dated 9.9.2017 in respect of the Ponds/Arazi Nos. 23,267 and 275 situated in village Baldih Tehsil Lalganj District Azamgarh. 3. Briefly stated the facts of the case are that for the plots in dispute an advertisement dated 1.6.2017 was published in a Hindi Daily News Paper "Amar Ujala" and at sl. no. 27 thereof the plots in question have been mentioned. The petitioner submitted his application against the said advertisement on 28.6.2017 for the plots in question. His bid was accepted on 30.6.2017 and he also deposited a sum of Rs. 1,10,286/- being 1/4th amount of auction bid through treasury challan dated 30.6.2017. In paragraph 17 of the writ petition there is a categorical averment that there was no other applicant either from the Scheduled caste/Scheduled Tribe, Mallah, Kahar, Bind etc. nor any cooperative society. Accordingly the Patta was granted in favour of the petitioner. Subsequently a second advertisement dated 9.9.2017 was published for the same plots. Hence the present writ petition. Further by an order dated 28.9.2017 the petitioner's application in respect of the first advertisement dated 1.6.2017 was rejected and he was informed that he should come to the office and collect the money deposited by him. 4. A short counter affidavit has been filed by the respondents in which the stand of the respondents is that the petitioner was above poverty line and also belonged to the general category and therefore there was violation of the provisions of sub rule (5) of Rule 57 of the U.P. Revenue Code Rules, 2016 (Rules, 2016). 4. A short counter affidavit has been filed by the respondents in which the stand of the respondents is that the petitioner was above poverty line and also belonged to the general category and therefore there was violation of the provisions of sub rule (5) of Rule 57 of the U.P. Revenue Code Rules, 2016 (Rules, 2016). There is not a single averment in the counter affidavit that other than the petitioner any other person or category of persons had also applied against the advertisement dated 1.6.2017 although it has been stated that the auction would be held strictly as per the provisions of Rule 57 of the Rules, 2016 and in the order of preference mentioned therein it has not been stated anywhere in the counter affidavit as to how there has been a violation of the order of preference as prescribed in sub rule (5) of Rule 57 of the Rules, 2016. Sub rule (5) of Rule 57 of the Rules, 2016 read as under: "(5). The eligibility of prospective lessees shall be prepared in accordance with the following order of preference- (a) Fishermen residing in the concerned Gram Panchayat; (b) Members of the S.C.,S.T., Other Backward Classes or persons of General category living below poverty line residing in the Gram Panchayat. (c) Fishermen residing in the concerned Nyaya Panchayat Circle; (d) Fishermen residing in the concerned Development Block: Explanation-For the purposes of this rule and Rule 58 the expression 'Fishermen' means any person belonging to the community of Kewat, Mallah, Nishad, Bind, Dheemar, Kashyap, Vatham, Raikwar, Manjhee, Godia, Kahar, Tureha or Turaha or any other person traditionally engaged in the fishing profession." 5. It is not the case of the respondents anywhere that the fishermen residing in the concerned Gram Panchayat had applied or that members of the Schedule Caste/Schedule Tribe, Other Backward Classes or person of general category living below poverty line residing in the Gram Panchayat had applied. It is also not alleged anywhere that fishermen residing in the concerned Gram Panchayat Circle had applied or that fishermen residing in the concerned Development Block had applied. Thus what emerges is that none of the persons belonging to the preferential category mentioned in sub rule (5) of Rule 57 of the Rules, 2016 had applied against the advertisement dated 1.6.2017 so as to disqualify the petitioner. Thus what emerges is that none of the persons belonging to the preferential category mentioned in sub rule (5) of Rule 57 of the Rules, 2016 had applied against the advertisement dated 1.6.2017 so as to disqualify the petitioner. The Rules do not state anywhere that fisheries lease will only be granted to a person who is below poverty line or only to a category of persons other than general category. In the absence of a categorical provision to that effect in sub rule (5) the respondents through a negative reading of sub rule (5) cannot seek to create an artificial category such as general category or "above poverty line" category so as to oust them from their right to apply against the advertisement and be considered for grant of fisheries lease. It is not disputed that the petitioner belongs to the general category and is above poverty line, therefore, when there is no other person belonging to the category of schedule caste/schedule caste and being below poverty line, or from any other preferential category, the application of the petitioner could not have been rejected on a totally misconceived and illegal reasoning that he was above poverty line and belonged to general category. The respondents by rejecting the application of the petitioner on the ground that he belongs to the general category and is "above poverty line" are trying to read into sub rule (5) of Rule 57 of the Rules, 2016 a provision of ouster of general category which the sub rule itself does not contain or provide for. 6. Learned standing counsel then submitted that there is no category under sub rule (5) of Rule 57 of the Rules, 2016 for grant of Patta to the persons falling "above poverty line". This submission of the learned standing counsel is quite confounding as it virtually implies that the Government wants to keep the citizens of the State below poverty line. The intent and purpose of grant of Patta is ultimately to the benefit the State earn maximum revenue. The categories mentioned in sub rule (5) cannot be ignored as there are an essential feature and an adjunct of a welfare State but the State can also not plead that because the preferential category of sub rule (5) are not available, therefore, the persons who belong to "above poverty line" should also not be considered for grant any fisheries Patta. Any such intent or purpose would neither be in the interest of State revenue nor beneficial to the public at large. 7. In paragraph 17 of the writ petition, there is a categorical averment of the petitioner that against the advertisement dated 1.6.2017 no applicant from the preferential category mention in sub rule (5) had applied. This paragraph has not been denied in the short counter affidavit and the averments of paragraph 17 of the writ petition have been replied in paragraph 10 of the short counter affidavit by stating that the same are matter of record and therefore need no comment. 8. Paragraph 17 of the writ petition reads as under: "17. That it is submitted that in the above mentioned auction dated 30.6.2017 there was no applicant either from the Scheduled caste/Scheduled tribe (S.C./S.T.), Mallaha, Kahar, Bind etc., nor any co-operative society has participated ion the auction. Further there was no person having expertise in fisheries development has applied." Paragraph 10 of the short counter affidavit reads as under: "10. That the contents of paragraph 16, 17, 18 and 19 of the writ petition are matters of record, as such need no comments." 9. Therefore, in view of the in-depth analysis of Sub rule (5) of Rule 57 of Rules, 2016 the procedure adopted by issuing the orders dated 28.9.2017 and issuing the second advertisement dated 9.9.2017 is wholly illegal and contrary to the aim and object and purpose of sub rule (5) of Rule 57 of Rules, 2016 and are accordingly quashed. The writ petition stands allowed. The respondents are directed to take steps to confirm the fisheries lease granted to the petitioner under the advertisement dated 01.06.2017, if there is no other legal impediment, within two months from the date of receipt of the certified copy of this order. 10. There shall be no order as to cost.