Back
2011 Supreme(UK) 51
2011 (2) UAD 37
UTTARAKHAND HIGH COURT
B.S. Verma
Writ Petition No. 742 of 2010 (M/S)
MATSYA JEEVI SAHKARI SAMITI LTD. – Petitioner
Versus
STATE & ORS. – Respondents
Decided on : 14.01.2011
For the Petitioners:Mr. Siddhartha Singh, Advocate
For the Respondents No. 1 to 3: Mr. N.P. Sah, Standing Counsel
For the Respondents No. 5 to 8:Mr. Sharad Sharma, Sr. Adv., assisted by Mr. Kovid Bhatt, Advocate
Headnote:(A) U.P. Zamindari Abolition and Land Reforms Act, 1950, Sec. 126 and U.P. Zamindari Abolition and Land Reforms Rules, 1952, R. 115-A, Constitution of India, 1950, Art. 226, U.P. Revenue Court Manual, Paragraph 60(2)(Kha)(1) — Cancellation of lease — Administrative power enjoyed by the assistant collector incharge of the Sub-Division to grant a lease under the G.O. — Includes the administrative power to cancel the lease with due observance of the rules of natural justice — Held that an alternative remedy is available to the petitioner for cancellation of lease by filing an application before the Collector — Which had been granted in violation of the Government Order.
(Paras 7, 13)
(B) U.P. Zamindari Abolition and Land Reforms Act, 1950, Sec. 126 and U.P. Zamindari Abolition and Land Reforms Rules, 1952, R. 115-A — S.D.M. granted lease of un-demarcated plot numbers of the single pond to individuals — Treating area of each plot number as less than 2 Hectare, while all the plot numbers were submerged in water, forming a single unit of pond — Area of the whole pond exceeded 2 Hectare — Therefore, lease granted in favour of the respondents no. 5 to 8, not in conformity with the G.Os — Impugned orders quashed. (Paras 16, 19)
(C) U.P. Zamindari Abolition and Land Reforms Act, 1950, Sec. 126 and U.P. Zamindari Abolition and Land Reforms Rules, 1952, R. 115-A, U.P. Revenue Court Manual, Paragraph 60(2)(kha)(1) — But, while passing the orders of allotment of the pond in question — S.D.M., neither called any meeting of persons eligible for allotment — Nor any publicity of the proposed settlement of fishery was done — Held that settlement of fishing right shall be done with proper and extensible publicity so that all who are eligible to participate may be aware of such proposed settlement and may participate — And without information or knowledge of all concerned who are eligible to participate the settlement will be arbitrary — Writ petition deserves to be allowed. (Paras 18, 19)
¼v½ mÙkj izns'k tehankjh mUewyu vkSj Hkwfe lq/kkj vf/kfu;e] 1950] /kkjk 126] vkSj mñizñ tehankjh mUewyu vkSj Hkwfe lq/kkj fu;ekoyh] 1952] fu;e 115A] Hkkjrh; lafoèkku] 1950] vuqPNsn 226] mñizñ eky U;k;ky; eSuqvy izLrj 60¼2½¼[k½¼1½ & iV~Vs dk fujLrhdj.k & 'kklukns'k ds rgr iV~Vk LohÑr djus dk iz'kklfud vf/kdkj lEcfUèkr ijxus ds ijxuk/kh'k esa fufgr gS ftl esa izkÑfrd U;k; esa fu;eksa dks /;ku esa j[kdj iV~Vk fujLr djus dk vf/kdkj Hkh lfEefyr gS & fu.kZ; esa dgk x;k fd ;kph dks iV~Vk fujLr gks tkus ds lEcU/k esa ftyk/kh'k ds U;k;ky; esa izkFkZuk i= nk;j fd;s tkus dh vkYVjusfVo fjesMh miyC/k gS tks fd 'kkldh; vkns'k dh vogsyuk djds LohÑr fd;k x;k FkkA ¼izLrj 7] 13½
¼c½ mÙkj izns'k tehankjh mUewyu vkSj Hkwfe lq/kkj vf/kfu;e] 1950] /kkjk 126] vkSj mñizñ tehankjh mUewyu vkSj Hkwfe lq/kkj fu;ekoyh] 1952] fu;e 115A & ijxuk vfèkdkjh }kjk fcuk fu'kkunsgh djs] ,d gh rkykc esa vyx vyx O;fDr;ksa dks iV~Vs LohÑr fd;s x;s Fks & ,sls iV~Vks dk dqy {ks=Qy 2 gSDVs;lZ ls de Fkk tc fd lHkh iV~Vs ikuh esa Mwcs gq, Fks tks fd feydj ,d rkykc ds :i esa Fks & ml iwjs rkykc dk {ks=Qy 2 gSDV;j ls vf/kd gksrk Fkk & blfy, mÙkjnkrk uEcj 5 ls 8 ds i{k esa LohÑr iV~Vs 'kkldh; vkns'k ds vuqlkj ugha Fks & iz'uxr vkns'kksa dks fujLr fd;k x;kA ¼izLrj 16] 19½
¼l½ mÙkj izns'k tehankjh mUewyu vkSj Hkwfe lq/kkj vf/kfu;e] 1950] /kkjk 126] vkSj mñizñ tehankjh mUewyu vkSj Hkwfe lq/kkj fu;ekoyh] 1952] fu;e 115A] mñizñ eky U;k;ky; eSuqvy izLrj 60¼2½¼[k½¼1½ & ijUrq tc iz'uxr rkykc ds vkoaVu ds vkns'k ikfjr fd;s x;s] ijxuk vf/kdkjh }kjk uk rks ik= vkoafV;ksa dh ehfVax cqykbZ xbZ uk gh izLrkfor eNyh ikyu ds lEcU/k esa dksbZ foKfIr nh xbZ & fu.kZ; esa dgk x;k fd eNyh ikyu ds vkoaVu dh dk;Zokgh mfpr foKfIr nsus ds ckn dh tk,xh rkfd tks ik= O;fDr gSa] dks mDr izLrkfor vkoaVu ds fo"k; esa tkudkjh gks tk, vkSj os Hkkx ys ldsa & mu lHkh ik= O;fDr;ksa dks fcuk tkudkjh vFkok lwpuk fn;s vkoaVu LoSfPNd gksxk & fjV ;kfpdk Lohdkj fd;s tkus ;ksX; gSA ¼izLrj 18] 19½
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 reserved 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 under U.P. Zaminda
