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2018 DIGILAW 1069 (ALL)

Vipin Kumar Singh v. State of U. P.

2018-05-01

MAHESH CHANDRA TRIPATHI

body2018
JUDGMENT : MAHESH CHANDRA TRIPATHI, J. 1. Heard Shri Nagendra Pratap Singh, learned counsel for the petitioner; Shri Rajesh Srivastava, learned Standing Counsel for the State respondent nos.1 & 2; Shri R.C. Upadhyay, learned counsel for respondent no.3 as well as Shri Om Prakash, learned counsel for contesting respondent no.4. 2. The petitioner is before this Court assailing the order dated 09.4.1018 passed by the second respondent, Sub Divisional Magistrate, Tehsil Budhanpur, District Azamgarh, by which he has proceeded to cancel the petitioner's fishery lease dated 15.3.2018 on Gata No.650/M (Pokhari area 0.2400 hectares) situated in Village Bhagatpur, Tehsil Budhanpur, District Azamgarh and for direction to the respondents not to interfere in his fishing right on the plot in question during the tenure of the lease. 3. Record in question reflects that an advertisement was published in daily newspapers on 12.2.2018 fixing 15.3.2018 for settlement of fisheries lease in accordance with the relevant Government Orders by organizing a camp in Tahsil Budhanpur, District Azamgarh for various ponds mentioned therein. In pursuance of the aforesaid advertisement, the petitioner also applied and his bid was accepted by the second respondent. The petitioner has deposited the entire amount on 16.3.2018. Thereafter, the fourth respondent namely Dharampal, who is also tenure holder of Gata No.650M area 0.0510 hectares, moved an application under Section 116 of U.P. Revenue Code, 2006 before the second respondent, stating that the aforesaid Gata has not been divided and his suit under Section 116 of U.P. Revenue Code, 2006 for division of the said Gata is pending and as such, the fishery lease cannot be settled in favour of the petitioner. The said application has been forwarded by the Lekhpal to the Naib Tehsildar on 20.3.2018 stating that the area of Pokhari is short on spot and without affording any opportunity of hearing to the petitioner, the impugned order has been passed. 4. In this backdrop, learned counsel for the petitioner precisely submits that the publication was made in the daily newspapers for settlement of fishery lease of the pond in question. In pursuance thereof, the petitioner also applied and his bid was accepted and the fishery lease has been settled in his favour. Before cancellation of the said fishery lease, the petitioner was not afforded any opportunity of hearing and straightaway the order impugned has been passed cancelling the fishery lease of the petitioner. In pursuance thereof, the petitioner also applied and his bid was accepted and the fishery lease has been settled in his favour. Before cancellation of the said fishery lease, the petitioner was not afforded any opportunity of hearing and straightaway the order impugned has been passed cancelling the fishery lease of the petitioner. He further makes submission that once the respondent no.4 has filed the suit for division of his holding under Section 116 of U.P. Revenue Code, 2006, then by no stretch of imagination the fishery lease, which has been settled in favour of the petitioner for Gata no.650M area 0.2400 hectares, could be cancelled. 5. On the other hand, Shri Om Prakash, learned counsel appearing for contesting respondent no.4 has drawn attention of this Court on Section 61 of U.P. Revenue Code, 2006 and submitted that on spot the area of the said pond is less than 0.5 acre and in such situation the Pokhari (pond) is liable to be used for public use by the inhabitants of the village and as such, the settlement could not be done for the fishing purpose. Moreover, once the suit for division of his holding under Section 116 of UP Revenue Code, 2006 is pending consideration then in such situation it was incumbent upon the State respondents to firstly decide his application under Section 116 and only thereafter they could settle the fishery right in favour of any incumbent. There is no infirmity or illegality in the order impugned and the same is liable to be sustained. 6. Shri Rajesh Srivastava, learned Standing Counsel for the State respondents very fairly states that so far as the provision contained under Section 61 of UP Revenue Code, 2006 is concerned, the revenue record, which is appended along with the writ petition, clearly proceeds to mention that the land in question is admittedly more than 0.5 acre land. So far as the settlement of fishing right is concerned, there was no infirmity in inviting applications through publication for settlement of fishing right against the said pond. The private respondent no.4 has every right for division of his holding but in the garb of the said proceeding, he cannot collaterally challenge the fishing rights of the petitioner. So far as the settlement of fishing right is concerned, there was no infirmity in inviting applications through publication for settlement of fishing right against the said pond. The private respondent no.4 has every right for division of his holding but in the garb of the said proceeding, he cannot collaterally challenge the fishing rights of the petitioner. Once the objection has been made by the private respondent no.4, that his application under Section 116 of UP Revenue Code, 2006 for division of his holding is pending then in such situation, taking the ground reality the second respondent has proceeded to pass the impugned order, which is liable to be sustained under the present facts and circumstances of the case. 7. The Court has proceeded to examine the record in question and finds that as per revenue record, which is appended along with the writ petition, it is admitted situation that out of Plot no.650M area 0.338 hectares, 0.240 hectares of land is recorded as Pokhari; 0.047 hectares of land is recorded as River and 0.051 hectare land is recorded in the name of respondent no.4 namely Dharampal, adopted Son Jugal Kishore. In the aforesaid circumstances, the objection so raised by learned counsel for the contesting respondent no.4, that the area of the holding, which is recorded as pond in the revenue record, is less than 0.5 acre and in such situation, no settlement can be made and the pond is to be utilized only for the public use by the inhabitants of the village, has no force at all under the present facts and circumstances. Admittedly, the revenue record clearly gives an impression to the Court that the area of the pond is higher than 0.5 acre and as such, the objection so raised by learned counsel for the contesting respondent is rejected. 8. Admittedly, the revenue record clearly gives an impression to the Court that the area of the pond is higher than 0.5 acre and as such, the objection so raised by learned counsel for the contesting respondent is rejected. 8. So far as the claim of the respondent no.4 for division of his holding as per provisions contained under Section 116 of the U.P. Revenue Code, 2006 is concerned, the respondent no.4 has already moved the application under Section 116 of UP Revenue Code, 2006 for the said purpose and the same is liable to be decided by the second respondent but the respondent no.4 cannot take such plea before the revenue officials that till disposal of his application under Section 116 of U.P. Revenue Code, 2006 the settlement of fishing right cannot be done in favour of the petitioner. In the aforesaid facts and circumstances, this Court is of the considered opinion that before passing the order impugned at no point of time the petitioner has been extended any opportunity of hearing and straightaway the order impugned has been passed. The same is in violation of principle of natural justice and is liable to be set aside. 9. In view of this, the impugned order dated 9.4.2018 cannot sustain and the same is set aside. 10. Consequently, the writ petition is allowed and the matter is remanded back to the Competent Authority to decide it afresh after affording opportunity of hearing to the petitioner strictly in accordance with law within a period of two months from the date of receipt of certified copy of this order and meanwhile, in case any such application moved by the respondent no.4 under Section 116 of UP Revenue Code, 2006 is pending consideration, the same may also be considered and decided by the Competent Authority.