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2023 DIGILAW 633 (ALL)

Ramjeet v. State of U. P.

2023-03-02

CHANDRA KUMAR RAI

body2023
JUDGMENT : 1. Heard Dr. Suman Kumar Yadav, Counsel for the petitioner, Mr. L.K. Tripathi, learned Additional Chief Standing Counsel for the State-respondents, Mr. Ranjeet Asthana, Counsel for respondent No.4 and Mr. Rameshwar Prasad, Counsel for respondent No.7-Land Management Committee. 2. Brief facts of the case are that on 09.07.2020 an advertisement was issued in pursuance of the order dated 02.07.2020 passed by respondent No.1 in respect to plot No.919 area 0.835 hectare and plot No.908 area 1.063 hectare situated in village-Bairadih @ Gambhirpur alongwith other plot situated in other villages of the District for fisheries right by way of auction to take place on 30.07.2020. According to the petitioner as stated in paragraph No.6 of the writ petition petitioner as well as respondent Nos. 8 and 9 appeared in the auction proceeding on 30.07.2020 and petitioner was the highest bider for Rs.30,000/- per year accordingly petitioner deposited requisite amount on the due dates but respondent No.4 denied the averment made in paragraph No.6 of the writ petition. Respondent No.3 allotted the plot No.908 area 1.063 hectare to the petitioner on 13.08.2020 for fisheries right for 10 years on rent of Rs.30,000/- per year. On 24.08.2020 an agreement was executed between Land Management Committee and petitioner for the period 13.08.2020 to 12.08.2030. Respondent No.4 filed an appeal under Rule 59 of U.P. Revenue Code Rule 2016 along with application under Section 5 of Indian Limitation Act before Collector against the allotment dated 13.08.2020 with respect to plot No.908 area 1.063 hectare (pond). State filed an objection in the aforementioned appeal. Petitioner also filed his objection before Collector stating that respondent No.4 has no locus to challenge the allotment of the petitioner due to reason that Respondent No.4 has not participated in the auction proceeding. Respondent No.2 heard the aforementioned appeal and vide order dated 31.10.2022 allowed the appeal and set aside the allotment dated 13.08.2020 which was made in favour of petitioner hence this writ petition. 3. This Court on 19.12.2022 passed the following order:- “Heard Dr. Suman Kumar Yadav, learned counsel for the petitioner as well as Sri Ranjeet Asthana, who appears for respondent no. 4 and Sri C.B. Singh, learned Standing Counsel, who appears for respondent nos. 1, 2 and 3. Learned counsel for the petitioner has argued that the entire proceedings initiated by the respondent no. Suman Kumar Yadav, learned counsel for the petitioner as well as Sri Ranjeet Asthana, who appears for respondent no. 4 and Sri C.B. Singh, learned Standing Counsel, who appears for respondent nos. 1, 2 and 3. Learned counsel for the petitioner has argued that the entire proceedings initiated by the respondent no. 4 for cancellation of the patta while preferring an appeal is nothing but misuse of the process of law, particularly, when a lease for the fishery rights stood settled for a period of 10 years on 13.08.2010 till 12.08.2030. Learned counsel for the petitioner has referred to paragraph no. 23 of the writ petition as well as Annexure 19 at Page 91 so as to contend that his income is Rs.42,000/- per annum and thus, even in fact he cannot be termed to be an affluent person. The learned counsel for the petitioner further submits that the auction was conducted as per the provisions of law and the petitioner also deposited the requisite bid amount. Learned counsel for the petitioner further submits that from a bare perusal of the order dated 31.10.2022 passed by respondent no. 2, it reveals that the same proceeds towards wrong direction as the question of financial status does not find place in the provisions contained under sub Rule (5) of the Rule 57 of the 2016 Rules. Sri Ranjeet Asthana, learned counsel who appears for the respondent no. 5 has sought time to complete his instructions from his client. Learned standing counsel also seeks time to seek instructions in that regard. On the request of the learned counsel for the parties, include the matter in the list on 22.12.2022 as fresh.” 4. On 01.02.2023 following order was passed by this Court:- “In compliance of the order of this Court dated 19.12.2022, the learned standing has placed instructions before this Court in which it is mentioned that respondent no.4 belongs to fisherman community and the petitioner belongs to scheduled caste community whose preference will come after fisherman community, as such, the allotment has been rightly cancelled in appeal filed by respondent no.4. Counsel for the petitioner submitted that respondent no.4 has not participated in the proceedings, as such, the allotment was rightly made to the petitioner for 10 years and the ground for cancellation of petitioner's allotment is arbitrary and illegal. Counsel for the petitioner submitted that respondent no.4 has not participated in the proceedings, as such, the allotment was rightly made to the petitioner for 10 years and the ground for cancellation of petitioner's allotment is arbitrary and illegal. The learned standing counsel and Sri Ranjeet Asthana, learned counsel for respondent no.4 shall file counter affidavits within 2 weeks. Put up as fresh on 20.2.2023 at 2.00 P.M., on which date the matter shall be finally decided on merits.” 5. In pursuance of the order of this Court dated 01.02.2023 respondent No.4 has filed his counter affidavit but counsel for the petitioner do not propose to file rejoinder affidavit in the matter. 6. Counsel for the petitioner submitted that petitioner was allotted plot/pond No.908 area 1.063 hectare for fishery right for 10 years on 13.08.2020 in accordance with the provisions of U.P. Revenue Code, 2006 and the rules framed thereunder. He further submitted that provisions of Section 61 of U.P. Revenue Code, 2006 and Rule 57 of U.P. Revenue Code Rules, 2016 were followed before granting fishery lease to the petitioner but impugned order has been passed arbitrarilly without considering the objection of the petitioner filed in appeal. He further submitted that respondent No.4 has no locus to challenge the allotment of fishery lease executed in favour of petitioner as respondent No.4 has not participated in the auction proceeding. He further submitted that petitioner is a trained fisherman as such petitioner was rightly allotted the plot/pond No.908. He further submitted that grounds for cancellation as mentioned in appellate order are misconceived. He submitted that fishery right for 10 years has already settled in favour of petitioner and petitioner started the fishery right but the same has been cancelled/set aside in arbitrary manner at the instance of respondent No.4. He submitted that impugned order be set aside and the writ petition be allowed so that petitioner may continue his fishery right in pursuance of allotment dated 13.08.2020. 7. Counsel for respondent No.4 submitted that as per advertisement respondent No.4 and other villagers have deposited security money at the Tehsil Head Quarter but deposit receipt has not been issued to the Respondent No.4. He further submitted that on 30.07.2020 Tehsil authority have told that pond is disputed as such bid is not possible today as such respondent No.4 along with others had return back to their village. He further submitted that on 30.07.2020 Tehsil authority have told that pond is disputed as such bid is not possible today as such respondent No.4 along with others had return back to their village. He further submitted that respondent No.4 and others came to know that without any opportunity to respondent No.4 and others the pond has been allotted to the petitioner and S.D.M. has approved the same on 13.08.2020 which is wholly illegal and under the pressure of petitioner's son who is Block Development Officer. He further submitted that petitioner is not entitled to the allotment as petitioner's real son Subhash Chand is Block Development Officer, daughter Manisha is Assistant Teacher in Primary School, daughter-in-law Smt. Laxmi is Head Master in Primary School and are living jointly. He further submitted that there is report of district authority to the aforementioned extant. He further submitted that income certificate of the petitioner is collusive one and appeal filed against the income certificate of the petitioner is pending before S.D.M.. He further submitted that petitioner has not filed correct copy of grounds of appeal filed by respondent No.4 under Rule 59 of U.P. Revenue Code, Rules 2016 as such correct copy of ground of appeal has been annexed as Annexure No.C.A-5 to the counter affidavit. He further placed the paragraph No.5 of the grounds of appeal which contain the family pedigree of the petitioner which is as under : 8. On the basis of family pedigree as mentioned above counsel for the respondent No.4 submitted that all the three participant in the auction proceeding i.e. Ramjeet, Pramod and Chanti Devi are family members and living jointly as such the allotment was rightly cancelled in appeal filed by respondent No.4 recording finding of fact that petitioner is not entitled to allotment of fishery right and provisions of Rule 57(5) (b) of U.P. Revenue Code Rules, 2016 has been violated He submitted that appeal filed by respondent No.4 has been rightly allowed and no interference is required against the impugned order. 9. Mr. L.K. Tripathi learned Additional Chief Standing Counsel and Mr. Rameshwar Prasad Shukla, Counsel for Land Management Committee submitted that petitioner has alternative remedy of Revision under Section 210 of U.P. Revenue Code 2006 against the impugned order. On merit they supported the impugned order dated 31.10.2022 passed by Respondent No.2 cancelling the petitioner’s fishery lease. 10. 9. Mr. L.K. Tripathi learned Additional Chief Standing Counsel and Mr. Rameshwar Prasad Shukla, Counsel for Land Management Committee submitted that petitioner has alternative remedy of Revision under Section 210 of U.P. Revenue Code 2006 against the impugned order. On merit they supported the impugned order dated 31.10.2022 passed by Respondent No.2 cancelling the petitioner’s fishery lease. 10. The instruction dated 21.12.2022 placed on record by Mr. L.K. Tripathi, learned Additional Chief Standing Counsel are as follows:- 11. I have considered the argument advanced by learned Counsel for the parties and perused the record. 12. There is no dispute about the fact that auction/allotment for fishery right took place on 30.07.2020 in respect to plot/pond No.908 area-1.063 hectare in favour of petitioner for 10 years fishery right on rent of Rs.30,000/- per yer. There is also not dispute about the fact that in appeal filed by respondent No.4 the allotment made in favour of petitioner has been cancelled on the basis of the report submitted by the district authorities. 13. The perusal of Rule 57 of U.P. Revenue Code Rules 2016 will be necessary in order to appreciate the controversy which is as under:- 57. Lease of smaller Tanks (Section 61).— (1) Where the area of a tank referred to in Section 61(b) exceeds 0.5 acre but does not exceeds 5 acres, the Samiti shall let out the same for fishing purposes or for growing Singhara with the prior approval of the Sub-Divisional Officer in accordance with the following procedure. (2) For the purposes of letting such tanks, a camp shall be organised at the tahsil level, about which wide publicity shall be given by publishing the date, time and place of the camp in at least one Hindi newspaper having wide circulation in the area. (3) The Chairman, the Secretary and an officer not below the rank of Naib Tahsildar shall be present at such camp meetings. If, more than one Gram Panchayats are involved, the Chairmen and Secretaries of all the Samitees concerned shall attend such meetings. (4) With the help of the representative of the fishermen community, to be appointed by the Collector for each tahsil, the Secretary shall prepare a list of eligible persons who may be allotted the tank under reference, in accordance with the order of preference specified in sub-rule (5). (4) With the help of the representative of the fishermen community, to be appointed by the Collector for each tahsil, the Secretary shall prepare a list of eligible persons who may be allotted the tank under reference, in accordance with the order of preference specified in sub-rule (5). (5) The eligibility list 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. (6) The persons referred to in any of the preceding clause of sub-rule (5) shall be entitled to the lease of such tank to the exclusion of those specified in the succeeding clauses. (7) If the list of eligible persons prepared under sub-rule (4) consists of more than one person, then an auction shall be held on the spot in which only those shall be allowed to participate whose names are included in such list. If there is only one person eligible for the lease aforesaid, the lease shall be granted on the annual rent of the amount fix by the State Government from time to time which shall not be less than Rs 1000 and shall not exceed Rs 2000 per acre. (8) The provisions of Sections 189 and 190 of the Code shall apply to every auction under this rule. (9) When the amount of the highest bid has been deposited, the eligibility list, the bid sheet and a report about the deposit of the bid amount duly signed by the Chairman, Secretary and the Revenue Officer referred to in sub-rule (3) shall be forwarded to the Sub-Divisional Officer for his approval. (10) If the Sub-Divisional Officer is satisfied that the decision to let the tank is in accordance with the provisions of these rules, he shall accord his approval and shall return the papers to the Samiti. (10) If the Sub-Divisional Officer is satisfied that the decision to let the tank is in accordance with the provisions of these rules, he shall accord his approval and shall return the papers to the Samiti. (11) If the Sub-Divisional Officer approves the proposal, the papers shall be returned to the Samiti and a Deed of Lease shall be executed in R.C. Form 15 which shall be registered under the Registration Act, 1908. (12) Every such lease shall be executed for a period of five years and the same shall not be renewed or extended. (13) The lessee may use the tank allotted to him for the purpose of fishing or producing other aquatic produce or vegetables. (14) If during the period of lease, the lessee commits any breach of the terms and conditions of such lease, the Sub-Divisional Officer may cancel the lease after issuing a show-cause notice to the lessee. (15) During the period of lease the rights of the local residents to use the tank for purposes of washing clothes, watering the cattle, digging out earth for purposes of pottery or the likes shall remain undisturbed." 14. The finding of fact recorded by appellate Court considering the provision of Rule 57 of U.P. Revenue Code, Rules 2016 will be also necessary for perusal, which is as under : 15. The inquiry report of Up-Zila-Adhikari dated 30.06.2022 demonstrate that petitioner belongs to Scheduled Caste Community but he is not living below poverty line as such provisions of Rules 57 (5) (b) of U.P. Revenue Code Rules, 2016 are not fulfilled. It is also mentioned in the report that about 40 families of fisherman community are residing in the Gram Panchayat concern but only three person including the petitioner participated in the auction proceeding who belong to one and same family. 16. The appellate Court has considered the report of Up Zila Adhikari dated 30.06.2022 as well as 10.09.2022 and recorded finding of fact that petitioner is not entitled to allotment for fishery right as he is not living below poverty line which is condition precedent for allotment as provided under Rule 57 (5) (b) of U.P. Revenue Code, Rules, 2016. 17. The appellate Court has considered the report of Up Zila Adhikari dated 30.06.2022 as well as 10.09.2022 and recorded finding of fact that petitioner is not entitled to allotment for fishery right as he is not living below poverty line which is condition precedent for allotment as provided under Rule 57 (5) (b) of U.P. Revenue Code, Rules, 2016. 17. Considering the entire facts and circumstances of the case, the impugned appellate order dated 31.08.2022 passed by respondent No.2 on the basis of enquiry report dated 30.06.2022 and 10.09.2022 do not require any interference by this Court under Article 226 of the Constitution of India. 18. The Writ petition is devoid of merit and is accordingly dismissed. Respondents are directed to take fresh steps for auction of the pond in question strictly in accordance with the provisions of the U.P. Revenue Code 2006 and Rules framed thereunder.