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IN THE HIGH COURT OF ALLAHABAD
Yatindra Singh, J.
GULAB - Appellant
Versus
BOARD OF REVENUE - Respondents
C. M. W. P. 8748 Of 2002
Decided On : 03/16/2002
Fisheries Rights - Lease Extension - Section 90 of the Registration Act - The court discussed the extension of lease period for fisheries rights and the authority to vary the terms of the lease deed. It highlighted the negligence of government officials, the entitlement of the contesting respondent to exercise fisheries rights, and the legality of the decision to grant a fresh lease for the period that the contesting respondent could not exercise his rights due to fault and negligence of the officials.
Fact of the Case:
A public auction was held for grant of fisheries rights for a pond. The contesting respondent won the auction, but the lease deed was executed with a delay. The contesting respondent filed for an extension of the lease period, which was initially dismissed but later allowed. The Gaon Sabha filed to cancel the extension, and during the proceedings, a fresh auction was held, and the lease was granted to the petitioner.
Finding of the Court:
The court found that the contesting respondent was entitled to exercise fisheries rights and that the delay in getting the lease deed registered was not due to the contesting respondent's fault. The court also noted that the actions of the Gaon Sabha and the S. D. M. in executing the lease during the pendency of the contesting respondent's application were illegal.
Issues: The issues revolved around the extension of the lease period, the authority to vary the terms of the lease deed, and the legality of the actions taken by the Gaon Sabha and the S. D. M. during the proceedings.
Ratio Decidendi: The court held that the contesting respondent was entitled to an extension of the lease period due to the fault and negligence of the government officials. It also emphasized that the actions of the Gaon Sabha and the S. D. M. in executing the lease during the pendency of the contesting respondent's application were illegal.
Final Decision: The writ petition was dismissed, and the Gaon Sabha and the S. D. M. were directed to take steps to get a fresh lease deed executed from the contesting respondent, permitting him to exercise his rights till a specified date.
( 1 ) A public auction for grant of fisheries rights for ten years was held on 10th September. 1990 in respect of a pond in old Khasra Nos. 1439. 1617 and 1624 (area about 6 acres) situate in village Khajuriwala, District Saharanpur. Sri Shyam Sunder (the contesting respondent) was successful bidder in this auction. Sub-Divisional Magistrate, Deoband, Saharanpur (S. D. M.)granted approval to this auction on 16th November, 1990 but the registered lease deed in respect of the same was executed on 21st April. 1994. In this lease deed, it was mentioned that it was for a period of ten years from 16. 11. 1990 to 15. 11. 2000.
( 2 ) THE contesting respondent filed an application dated 6. 12. 1995 for extension of this period on the ground that he was not permitted to exercise fishers rights till execution of the lease deed and prayed that the period of the lease be extended to 20. 4. 2004 to make it ten years from the date of execution. This application was dismissed by the s. D. M. on 17th September. 1998. The S. D. M. held : * R. K. Office (Record Keeper Office) was negligent in not getting the lease deed executed. * In future lease deeds be executed within 15 days. * The term of lease deed cannot be varied. * The contesting respondent cannot be given ten years lease from the date of execution of lease deed.
( 3 ) THE contesting respondent filed a revision against this order. This revision was allowed on 7. 2. 2000 and the matter was remanded back to the S. D. M. , for re-decision on merit after hearing the counsel for the contesting respondent. The S. D. M. , after remand, allowed the application on 7. 2. 2000. He held that : * The contesting respondent was not permitted to exercise fisheries rights till the execution of the lease deed. * The contesting respondent is entitled to lease of ten years. * The term of lease should be extended to 20. 4. 2004.
( 4 ) GAON Sabha, Khajuriwala, District Saharanpur (Gaon Sabha) filed an application on 10th october, 2000 to cancel the order dated 7. 2. 2000. The S. D. M. , by his order-dated 1. 11. 2000 cancelled his earlier order dated 7. 2. 2000 on the ground that term of lease cannot be varied. The contesting respondent filed a revision against the aforesaid order before Board of Revenue and obtained an interim order on 28. 11. 2000 staying the order dated 1. 11. 2000. During this period, the Gaon Sabha held fresh auction on 16th November, 2000 ; it was taken by Sri Gulab (the petitioner ). Despite the stay order granted by the Board of Revenue, the auction was approved by the S. D. M. , on 29. 11. 2000 and lease deed was executed in favour of petitioner on 8. 12. 2000 (registered on 20. 12. 2000 ). The Board of Revenue, after hearing the petitioner, allowed the revision on 11. 2. 2002 holding that. * The contesting respondent is entitled to exercise fishers rights for 10 years. * He was only permitted to exercise it from the date of execution of the lease deed. * He should be permitted to exercise fisheries rights till 20. 4. 2004. Hence, the present writ petition.
( 5 ) I have heard Sri S. C. Verma counsel for petitioner, Sri Anil Kumar Aditya counsel for contesting respondents, standing counsel and Sri Anuj , Kumar for the other respondents. The contesting respondent has filed a counter-affidavit and a supplementary counter-affidavit. The petitioner does not wish to file any rejoinder-affidavit. With the consent of the parties, the writ petition is being decided at this stage, the Parties Submissions
( 6 ) THE petitioner has raised three points :
(i) The lease in favour of the contesting respondent is by a registered deed. It can be altered only by another registered lease deed. (ii) The S. D. M. , or the Board of Revenue has no jurisdiction to extend the time stipulated in the lease deed. (iii) The delay in getting the document registered was due to the fault of the contesting respondent and he cannot take advantage of the same.
( 7 ) ADMITTEDLY, the lease deed in favour
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