Allahabad High Court
Matsyajivi Sahkari Samiti ... vs State Of U.P.Thr.Prin.Secy.Panchayat ... on 12 January, 2018
Author: Rajnish Kumar
Bench: Devendra Kumar Arora, Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Judgment Reserved A.F.R. Case :- MISC. BENCH No. - 6559 of 2015 Petitioner :- Matsyajivi Sahkari Samiti Ltd.Thr.Adhyaksha/Mukhya Pravartak Respondent :- State Of U.P.Thr.Prin.Secy.Panchayat Raj Deptt.Lko.& Others Counsel for Petitioner :- Anurag Kumar Singh,Manzar Ali Khan,Mohammad Aslam Khan Counsel for Respondent :- C.S.C.,Rohit Singh Parmar Hon'ble Dr. Devendra Kumar Arora,J.
Hon'ble Rajnish Kumar,J.
(Delivered by Hon'ble Rajnish Kumar, J.)
1. Heard Shri Mohd. Arif Khan, Senior Advocate assisted by Shri Manzar Ali Khan, learned counsel for the petitioner and Shri Rohit Singh Parmar, learned counsel for opposite party no.5 as well as learned Standing Counsel for opposite party nos. 1 to 4.
2. The facts in brief for the purpose of adjudication of the present controversy are that the petitioner is a cooperative society registered under the provisions of U.P. Cooperative Societies Act, 1965 in the office of Director Fisheries/Registrar, Fisheries Cooperative Societies, Uttar Pradesh.
3. The opposite party no.3 published a press release in Amar Ujala on 12.06.2015 whereby details of the water bodies that were opened for allotment of fishing rights were provided and relevant dates of auction were also published.
4. The Gata No. 201, 740, 818, 1209, 1256, 1321, 1928, 2007, 1535, 250 Kha, 388 Kha, 453 Yaa, 717 Gha of village Goswa Donga were opened for allotment of fishing rights, therefore, the petitioner submitted an application on 06.07.2015 with a request that since the petitioner is a registered Matsyajivi Sahkari Samiti of village Goswa Donga, the rights of Gata No. 250 Kha/14.960 hectare, 388 Kha/12.836 hectare, 453 Yaa/15.492 hectare, 717 Gha/2.339 hectare, 201/0.316 hectare and 818/0.418 hectare, total 6 Gatas with an area of 46.43 hectares may be allotted to it on the basis of preference.
5. The opposite party no.5 which is a cooperative society of Block Behandar, District Hardoi submitted its objection against the above mentioned application dated 06.07.2015 and the said objection of the opposite party no.5 has been decided by means of the order dated 09.07.2015. By the said order the objection of the opposite party no. 5 has been rejected by the opposite party no.3 and a direction was issued for holding the auction between the petitioner and the opposite party no. 5 solely on 14.07.2015.
6. On 14.07.2015 the Chairman of the petitioner's society has submitted an application for grant of time on account of illness but the same was rejected and the auction has been held and the fishing rights has been awarded to the opposite party no.5.
7. Being aggrieved by the impugned order dated 09.07.2015 and auction proceeding dated 14.07.2015, contained in Annexure Nos. 1 and 2 to the writ petition, the petitioner has approached to this Court challenging the same with a further prayer for a direction to opposite party no.3 to award the fishing rights for gata no. 250 Kha, 388 Kha and 453 Yaa situated in village Goswa Donga, Tehsil Sandila, District Hardoi to the petitioner Society.
8. Sri Mohd. Arif Khan, learned Senior Advocate submitted that the petitioner is a registered fishermen cooperative society having its area of operation as Nyay Panchayat Gowa Donga within which the water bodies in question is situated, therefore, the allotment of fishing rights may be done in favour of the petitioner on preferential basis in view of paragraph 60(2)(B) of the Uttar Pradesh Gram Sabha, Gram Panchayat and Bhumi Prabandhan Samiti Manual as amended vide Government Order dated 17.10.1995. He further submitted that the opposite party no.5 is a cooperative society of different block, i.e. development block Behendar and not block Sandila where the pond/water bodies in question exist, therefore, the opposite party no.5 is not covered under any of the category of societies mentioned under the preferential order of allotment. The opposite party no.5 is neither a society of concerned Gram Panchayat, Nyay Panchayat concerned development block nor it is a district level cooperative society, therefore, also it is not eligible at all for preferential allotment in case of water ponds/water bodies in question.
9. Further submission is that by means of the order dated 09.07.2015 the objection of the opposite party no.5 society has been rejected, even then the auction was directed to be held between the petitioner and the opposite party no.5 society and after auction on 14.07.2015, without considering the application of petitioner for time, the fishing rights have been awarded to the opposite party no.5 in an arbitrary and illegal manner.
10. He further submits that the petitioner being a registered fishermen cooperative society of the concerned Nyay Panchayat is the only cooperative society eligible under the preferential order of allotment and is covered under Clause (b) of Paragraph 60(2)(B) of the Manual, therefore, it was incumbent upon the opposite party no.3 to allot the same to the petitioner society for awarding the fishing rights for the gata in question.
11. As per proviso mentioned in preferential order, the lease may be given to any desirous registered cooperative society of the concerned village failing which it may be given to a desirous registered cooperative society of the Nyay Panchayat of the concerned village and thereafter to registered cooperative society of the concerned development block and thereafter to cooperative society of the district, therefore, the impugned order is wholly without jurisdiction and illegal.
12. The opposite party no.3 while passing the impugned order has not adhered to the preferential order of allotment prescribed under Clause (b) of Paragraph 60(2)(B) of the Manual. The impugned order dated 09.07.2015 is self contrary as on the one hand, the opposite party no.3 has recorded a finding that the petitioner society is a registered Fishermen Cooperative Society of the area of village concerned, i.e. Goswa Donga, however, on the other hand a direction has been issued for holding auction between the petitioner and the opposite party no.5.
13. On the basis of the above submissions, learned counsel for petitioner further submitted that the impugned order dated 09.07.2015 and the auction proceedings held on 14.07.2015 are without jurisdiction, illegal and arbitrary and not sustained under law and are liable to be quashed by this Court and the petitioner is entitled for a direction to the opposite parties to award the fishing rights of 3 gatas, namely, 250 Kha, 388 Kha and 453 Yaa situated in village Goswa Donga, Tehsil Sandila, District Hardoi to the petitioner Society.
14. Learned counsel for the opposite parties no. 2 to 4 Sri Rohit Singh Parmar on the basis of the counter affidavit filed in the writ petition submitted that after due advertisement in the news paper on 12.06.2015 in respect of grant of fishing rights over the ponds in question, two separate applications were moved by the petitioner and the opposite party no.5. The opposite party no.5 also filed his objection against the application of the petitioner which was rejected by the opposite party no.3 vide order dated 09.07.2015 and the date of auction was fixed for 14.07.2015. On the said date the auction proceedings were held and finalized in favour of opposite party no.5 in accordance with law. However, despite due information, nobody on behalf of the petitioner had participated in the auction proceedings on untenable ground.
15. He further submitted that the petitioner society consists of the members of backward category which is not related to Machhuwa Community, however, they are engaged in fishing. He further submitted that allotment of fishing rights are to be made in accordance with the Government Order dated 17.10.1995 and the provisions contained under Uttar Pradesh Gram Sabha, Gram Panchayat Evam Bhumi Prabandhak Samiti Manual as well as the pronouncements and directions issued by this Hon'ble Court and the allotment in the case in hand has also been made strictly following the aforesaid procedure.
16. He further pointed out that the contention of the petitioner that he is above to the opposite party no.5 in preference given in the Government Order dated 17.10.1995 and the allotment of the pond in question ought to have been made in its favour, is totally misconceived and false, whereas the petitioner comes at Serial Number 3(1) in the preferential category given in the Government Order dated 17.10.1995 while the opposite party no. 5 comes at Serial Number 1(d) as such, the opposite party no. 5 is above in preference to the petitioner.
17. He further submitted that though the petitioner is a Society of Gram Panchayat Level but since its members belong to backward class and they do not belong to Machhuwa Community and the opposite party no.5 is a District Level Society of Machhuwa Community which is above in the order of preference given in the order dated 17.10.1995. Accordingly, fishing rights on the gatas in question has rightly been awarded to the opposite party no. 5 in accordance with law after following the prescribed procedue and there is no illegality or infirmity in it. Hence, the writ petition is totally misconceived and devoid of any merit and liable to be dismissed with cost.
18. We have considered the submissions of the parties and gone through the record.
19. The provisions of Part IX of the Constitution of India were inserted by 73rd amendment in 1982 and accordingly Article 243(G) was also inserted. Article 243-G contemplates giving Panchayats such power and authority as may be necessary to enable them to function as Institution of self-Government. The provisions further provide that power and responsibility of a Panchayat shall be with respect to preparation of plan for economic development and social justice and the implementation of scheme for economic development and social justice as may be entrusted to them including those in relation to the matter listed in Eleventh Schedule. Article 243-G of the Constitution is on reproduction reads as under:
"243G. Powers, authority and responsibilities of Panchayats.-- Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority and may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution for powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to--
(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule."
The Eleventh Schedule of the Constitution, which is referred to under Article 243-G includes fishery at Item No. 5.
20. Section 122-A of the U.P. Zamindari Abolition And Land Reforms Act, 1950 (hereinafter referred to as ''UPZA&LR Act') provides that subject to the provisions of this Act, the Land Management Committee shall be charged, for and on behalf of the Gaon Sabha with the general superintendence, management, preservation and control of all the land, forests within village boundaries, trees (other than trees in a holding, grove or abadi), fisheries, tanks, ponds, water channels, pathways, abadi sites and hats, bazars and melas vested in the Gaon Sabha under Section 117. Section 122-A (2)(k) includes the maintenance and development of fisheries and tanks and duties of Land Management Committee. Section 126 of the UPZA&LR Act provides that the State Government may issue such orders and directions to the Land Management Committee as may appear to be necessary for purposes of this Act and it shall be the duty of the Land Management Committee and its office-bearers to forthwith carry out such orders and comply with such directions. Rule 115(a)(3) of the U.P. Zamindari Abolition and Land Reforms Rules, 1952 also provides that the State Government may issue directions to the Bhumi Prabandhak Samiits (Land Management Committees) established under Section 28-A of the U.P. Panchayat Raj Act, 1947 on the matters relating to the functions of the Bhumi Prabandhak Samitis as laid down in Sectgion 28-B of the U.P. Panchayhat Raj Act, in so far they appear necessary for the purposes of this Act.
21. In pursuance of the Section 122-A(2)(k) of the UPZA&LR Act a provision has been made in Para-60 of the Uttar Pradesh Gram Sabha, Gram Panchayat and Bhumi Prabandhan Samiti Manual regarding maintenance and development of fisheries and tanks etc. Para-60 provides that Bhumi Prabandhak Samiti shall have the right to regulate the use of tanks, ponds, fisheries and water channels keeping in mind the customary rights. It may charge fees for the benefit derived such as fess for breeding and collecting fish from the ponds or for irrigation. A provision was also made on the expiration of period of ten years, the lease of fishing and growing singhara in tanks/ponds vested in Gram Sabha can be granted for 10 years in favour of the same lessee. At the end of 10 years period if the conduct of lease holder is found satisfactory, according to discretion of Collector for next five years with increase in yearly rent of 20 percent, provided that tanks/ponds of less than 0.5 acre shall be reserved exclusively for the use of community. If the ponds of more than 0.5 acre, the lease of which may be granted for fishing or growing singhara for ten years, was in continued use of public purposes such as washing of clothes, irrigation, digging out earth, etc. they shall be used like previously and a special mention will be made in the conditions of lease that lessee will not interfere in above continue use, if any.
22. It has been provided in para 60 of the U.P. Gram Sabha, Gram Panchayat and Bhumi Prabandhak Samithi Manual that Bhumi Prabandhak Samiti shall have the right to regulate the use of tanks, ponds, fisheries and water channels keeping in mind the customary rights. It may charge fees for the benefit derived such as fees for breeding and collecting fish from the ponds or for irrigation. A preferential order has been given in para 60(2)(B) and in accordance with the same the lease may be granted. We are of the considered view that when a preferential order has been prepared by the Government for awarding any such rights keeping in mind the benefits of the customary rights of any community, then that has to be adhered to.
23. Here it will be pertinent to point out that Para 60(2)(Ka) has been held to be ultra vires to the Article 14 of the Constitution of India and is invalid and it has been held that the patta cannot be renewed for fisheries rights by the Land Management Committee/Sub-Divisional Officer after the expiry of the period for which it was granted by a Full Bench decision reported in (2004) 96 RD 645; Feru Vs. State of U.P. and others.
24. The State Government has issued directions vide Government Order dated 17.10.1995 providing separate procedures for granting fishing rights for more than 2 hectares and less than 2 hectares. The present case relates to class of fishing rights in respect of ponds and tanks having an area of about 43.288 hectares. Accordingly, in the present case, we are concerned only with the classification made in respect of the ponds and tanks of more than 2 hectares. With regard to ponds and tanks of more than two hectares the Cooperative Societies even of District Level and State Level are contemplated and individual of the same Village/Nyaya Panchayat/Vikas Khand/District is also included as last preference. From the scheme of the directions issued under UPZA&LR Act, it is clear that first emphasis is on the Gaon Sabha concerned where tank or pond is situated and individual belonging to fishermen community and other similar communities are preferred for ponds and tanks up to two hectares and thereafter Cooperative Societies of fishermen. Giving preference to fishermen of the village concerned is with object to provide livelihood to the fishermen who are traditionally engaged in fishing and to other similar communities who are socially and economically weak. Preference to Cooperative Societies of fishermen is also with the same object i.e., to provide means of livelihood to fishermen who form Cooperative Society.
25. The Government Order dated 17.10.1995 specifically mentions that the scheme is framed keeping in view that the benefit of the scheme be availed by the persons of fishermen community and leases of ponds and tanks could not be made in favour of middlemen and unsocial elements. The scheme has been framed as a measure of social justice to provide means of livelihood to fishermen and other similar communities who had been traditionally engaged in fishing. Preferance of Gaon Sabha concerned is also with object that person of Gaon Sabha should get livelihood in the same village.
26. Admittedly, the petitioner's society is a cooperative society of Nyay Panchayat, Goswa Donga, Tehsil Sandila, District Hardoi, which consists of members of Backward category which is not related Machhuwa community. However, they are engaged in fishing and it false within the category 3(a) which on reproduction reads as under :
"Other Cooperative Societies of concerned Gram Sabha which is constituted and registered under Cooperative Rules."
27. The opposite party no.5 is a Society, Kharika, Development Block Behandar, District Hardoi which is a District Level Society of Machhuwa Community which false under para 1(c) of the Category which is reproduced as under:
"To fishermen's Cooperative Society of the concerned Development Block, who are constituted and registered under Cooperative Rules."
28. It has further been provided in Para 60(2)(b)(5) of the category that lease may be given to any desirous persons of concerned village failing which to Nyaya Panchayat of concerned village, thereafter to concerned Development Block and thereafter to Cooperative Society of the district. The directions issued by the State Government under Section 126 of UPZA&LR Act read with Rule 115(a)(3) of the Rules 1952 have been considered by a Full Bench of this Court referred in [2006(24)LCD59]; Ram Kumar and Others Vs. State of U.P. and others and this Court has upheld the validity of the directions issued. The relevant paragraphs 23 and 24 of which are reproduced as under:
"23. From the above pronouncements made by the Apex court, it is well settled that restrictions imposed to give effect to the constitutional goals as laid down in Directive Principles of State Policy are restrictions with intention to give certain benefits to weaker section of the society which are reasonable restrictions which does not infringe any right of individual citizen under Article 19(1)(g). The rights under Article 19(1)(g) are not absolute rights. As noted above, every individual has also right of consideration but according to preference laid down in the Government Orders issued under Section 126 of the 1950 Act. The preferences have been provided in the scheme of the Government with object of providing livelihood to fishermen and fishermen cooperative societies. The view of the Division Bench in Panchoo's case (supra) and other cases that unless fishing right is not settled by auction it will violate Article 19(1)(g) is not correct. The settlement of fishing right by auction will necessarily be in favour of a person giving highest bid. The big contractors and moneyed persons will steal a march over poor fishermen and other poor people of the village who are unable to organize themselves and the result would be that a sizeable section of fishermen and other communities will be deprived of their livelihood. To stop the settlement from going into the hands of big contractors and middlemen, the scheme was enforced by the State Government. The scheme has rational nexus with the object sought to be achieved and the persons for whose benefits the scheme has been framed definitely falls in a separate class having intelligible differentia. The settlement of fishing right in ponds and tanks by public auction cannot be held to serve the purpose and object not the same can carry forward the goals as laid down in the Directive Principles of State Policy. Mere getting more revenue by public auction is not only object for letting out the fishing right. The objective as displayed from the directions of the State Government under Section 126 of 1950 Act is to provide livelihood to fishermen and other similar communities and also to give preference to the cooperative societies of such fishermen so that they may organize themselves and carry on their traditional vocation for the benefit of large part of waker section of the society.
24. We are, thus of the clear opinion that the directions issued by the State Government under Section 126 of 1950 Act read with Rule 115-A of 1952 Rules, as noted above, does not violate rights of any person under Article 19(1)(g) and Article 14 of the Constitution of India and the view expressed by the Division Bench in Panchoo's case and Abdul Gaffar's case (supra) in so far as they hold the settlement of fishing right only by way of public auction does not lay down the correct law. As noted above, the view in the aforesaid judgments as well as the view expressed in Ajai Sonkar's case (supra) and in Gram Panchayat Kanta's case (supra) that the renewal of lease is not permissible is absolutely correct and the same view has found favour with the full Bench judgment of this Court in Feru's case (supra)."
29. In view of above, the fishing rights can be allotted in the preferential order prepared by the Government keeping in mind the customary rights. The cooperative society of the petitioner falls in para 60(B)(3)(a) whereas the cooperative society of the respondent no. 5 falls within para 60(B)(1)(c) which is above the category of petitioner. Accordingly, we are of the considered opinion that the respondent no. 5 has rightly been awarded the fishing rights in accordance with law and there is no illegality or infirmity in the same. Hence, the writ petition is misconceived, lacks merit and deserves to be dismissed.
30. Accordingly, the writ petition is dismissed.
31. No order as to costs.
Order Date :- 12.01 .2018 psd