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2011 Supreme(UK) 50
2011 (1) U.D 250
HIGH COURT OF UTTARAKHAND AT NAINITAL
B.S. Verma
Matsya Jeevi Sahkari Samiti Ltd. ……Petitioner
Versus
State and others. …….Respondents
Writ Petition No. 742 of 2010 (M/S)
Decided on : 14-01-2011
Mr. Siddhartha Singh, Advocate for the petitioner.
Mr. N.P. Sah, Standing Counsel for respondents No. 1 to 3.
Mr. Sharad Sharma, Sr. Advocate assisted by Mr. Kovid Bhatt, counsel for respondents No. 5 to 8.
The main legal point established in this judgment is that leases for fisheries work should be granted in accordance with the preferences specified in the Government Order and the provisions of the U.P. Zamindari and Land Reforms Act. Proper and extensive publicity is required for the settlement of fishing rights, and an alternative remedy is available for cancellation of leases.
Headnote:LEASE - U.P. CO-OPERATIVE SOCIETIES ACT - Section 129 - The court discussed the provisions of Section 129 of the U.P. Co-operative Societies Act, which allows co-operative societies engaged in pisciculture/fisheries work to be granted leases. The court noted that the petitioner society is registered under this Act and engaged in fisheries work. GOVERNMENT ORDER - The court referred to a Government Order dated 04.01.1994, which provides for preferences in granting leases for ponds and tanks. The order specifies that for ponds and tanks up to two hectares, preference is given to persons of the same village belonging to certain communities. For ponds and tanks of more than two hectares, co-operative societies and individuals from the same village/nyaya panchayat/vikas khand/district are included as the last preference. ALTERNATIVE REMEDY - The court cited a Full Bench judgment of the Allahabad High Court, which held that an alternative remedy is available to the petitioner for cancellation of the lease by filing an application before the Collector. The court noted that the petitioner had the option to approach the Collector for canceling the lease, but chose to file a writ petition instead. PUBLIC AUCTION - The court discussed the requirement of proper and extensive publicity for the settlement of fishing rights, as provided under Section 126 of the U.P. Zamindari and Land Reforms Act, 1950. The court referred to a Full Bench judgment that clarified that while public auction is not mandatory, it can be exercised by the Sub-Divisional Officer when there are more than one person claiming entitlement for the lease. The court observed that the lease in question was granted without proper advertisement and information, and without calling for a meeting or making any publicity. The court held that the lease granted to the individual respondents was in violation of the Government Order and the provisions of the U.P. Zamindari and Land Reforms Act.
Fact of the Case:
The petitioner, a co-operative society engaged in fisheries work, sought to quash the lease granted to individual respondents by the Up-Zila Adhikari. The petitioner argued that it had preferential right over the pond, which was a single unit, and that the lease should have been granted to the society as per the Government Order.Finding of the Court:
The court found that the lease granted to the individual respondents was in violation of the Government Order and the provisions of the U.P. Zamindari and Land Reforms Act. The court noted that the pond in question was a single unit and should have been leased out to the society after proper publicity and calling a meeting.Ratio Decidendi:
The court held that the lease should have been granted to the petitioner society as per the Government Order and the provisions of the U.P. Zamindari and Land Reforms Act. The court emphasized the requirement of proper and extensive publicity for the settlement of fishing rights and the availability of an alternative remedy for cancellation of the lease. Final Decision: The court allowed the writ petition and set aside the lease granted to the individual respondents. The court directed that the pond be leased out to the society after calling a meeting convened by the Sub-Divisional Officer with proper publicity.Heard learned counsel for the parties.
2. By means of this petition, the petitioner has sought writ in the nature of certiorari quashing the impugned order dated 03.04.2010 (annexure-1 to the writ petition), whereby the lease was granted to respondents No. 5 to 8 individually.
3. Brief facts of the case, as narrated in the writ petition are that petitioner is a co-operative Society, registered under the then U.P. Co-operative Societies Act, 1965 (now valid under Uttaranchal Co-operative Societies Act, 2003). As per provision of Section 129 of the Act, the petitioner society is engaged in Pisciculture/Fisheries work as per the Government Order. The petitioner society is of tehsil level, which includes every block (vikas khand) as per letter dated 04.05.1999, issued by Director, Fisheries. It is pleaded in para-5 of the writ petition that lease/patta was granted to the petitioner society after fulfillment of all the formalities, as required under law. Time period was with effect from 08.03.2000 till 07.03.2010. It is further pleaded that the pond, situated in Khasra No. 192, has a huge area of more than 5 hectare. Prior to consolidation proceedings, pond in question was subdivided in five different numbers (minjumla numbers). The old khasra number of the pond was 192, which was sub-divided into 192/1, 192/7, 192/6, 192/4, and 192/5. But in the revenue record, khasra No. 192 was shown as a consolidated number, consisting of one pond fully covered with water but during the consolidation proceedings, the khasra number of the pond were changed to plots No. 382, 385, 388, 389 and 390 respectively, whereas the area of the pond remained the same as it was earlier. It is further stated that all the plot numbers are covered with the water and there is no demarcation and boundaries in between, therefore, ponds cannot be treated as a separate unit.
4. After the expiry of the period of allotment i.e. 07.03.2010, the petitioner society, moved an application on 11.12.2009 (Annexure no. 7 to the writ petition), before respondent No. 2 with a prayer that since the total consolidated area of the pond is more than 5 hectares, it is to be allotted to the petitioner society as the petitioner society alone is entitled for its allotment as per Government Order dated 04.01.1994. Despite of the facts that the plot numbers are adjoining to each other and the pond in question is a single unit and petitioner had preferential right over the pond, it was allotted to respondents No. 5 to 8 individually. The impugned order has been passed by the respondent No. 2, without application of mind and without proper advertisement and information.
5. In the counter affidavit filed on behalf of respondents No. 5 to 8, in para-7, it has been stated that initially khasra No. 192, in consolidation proceedings were divided in 7 plot numbers i.e. 383, 384, which were reserve for abadi and khasra No. 385/1.7680 hectare, 388/1.0000 hectare, 389/0.2400 hectare, 390/0.40000 hectare, have been made from ‘Johad’ land, which is clear from the sajra. Copy of sajra has been annexed as annexure no. C.A. 1 to the counter affidavit. It is further stated in para-14 of the counter affidavit that as per G.O. dated 04.01.1994, it relates to the people of Machuwa Samuday and the petitioner’s society is of tehsil level. Therefore, they cannot take benefit of G.O. dated 04.01.1994.
6. In the counter affidavit, filed on behalf of respondents No. 2 and 3, above mentioned averments, have been taken in para-6, 7 and 10. In para-20 of the counter affidavit, it has been further stated that petitioner had an alternative remedy of appeal before the Commissioner in accordance with para 60(2) of the Gram Sabha Manual, therefore, on the ground of alternative remedy, the writ petition is liable to be dismissed.
7. During the course of argument, learned Senior Advocate appearing for the respondent has raised a preliminary objection that the alternative remedy to file revision und
