Allahabad High Court
Smt. Kaushaliya Devi vs State Of U.P. And 4 Ors. on 8 January, 2015
Author: Ran Vijai Singh
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved Case :- WRIT - C No. - 39590 of 2014 Petitioner :- Smt. Kaushaliya Devi Respondent :- State Of U.P. And 4 Ors. Counsel for Petitioner :- Rajesh Kumar Dubey Counsel for Respondent :- C.S.C.,Kamleshwar Singh,T.M.Khan With Case :- WRIT - C No. - 41064 of 2014 Petitioner :- Shanker Respondent :- State Of U.P. And 5 Ors. Counsel for Petitioner :- Rajesh Kumar Dubey Counsel for Respondent :- C.S.C.,O.P.Singh,Tariq Maqbool Khan Hon'ble Ran Vijai Singh,J.
Heard Sri Rajesh Kumar Dubey, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents, Sri Kamleshwar Singh and Sri Avinash Jaiswal, learned counsel for respondent no. 5 and Sri T.M. Khan, learned counsel for the Gaon Sabha. In the above writ petitions, since the common questions of facts and law are involved, therefore, the same are being taken up for final disposal with the consent of learned counsel for the representing parties. Writ C No. 39590 of 2014 has been filed for issuing a writ of certiorari quashing the order dated 20.2.2014 passed by the Sub Divisional Officer, Gola, District Gorakhpur, by which the approval has been granted for executing the fishery lease in respect of pond no. 246, measuring about 1.052 hectare situated at Village Ranipur Tappa Chandpar, Pargana Dhuriapar, Tehsil Gola District Gorakhpur for a period of ten years at the rate of Rs. 10,520/- per year, whereas Writ C No. 41064 of 2014 has been filed for issuing a writ of certiorari quashing the order dated 21.2.2014 passed by the Sub Divisional Officer, Gola, District Gorakhpur, by which the proposal to grant fishery lease, over pond no. 446 measuring about 0.315 hectare situated in Village Barrah Tappa Chandpar, Pargana Dhuriayap, Tehsil Gola, District Gorakhpur for a period of ten years at the rate of Rs. 3,250/- per year, has been approved. In Writ C No. 39590 of 2014, learned counsel for the petitioner has filed an application for withdrawal of the writ petition. The application is rejected for the reason that either the petitioner has been won over by the concerned respondent or he is doing so under threat perception and the writ petition is decided on merits. The brief facts involved in both the cases are similar one, therefore, the fact of each case is not discussed separately. The facts giving rise to these cases are that vide notification dated 17.2.2014, published in the newspaper Dainik Rashtriya Sahara, an intimation was given to the public that on 19.2.2014, sivir will be organized for settlement of fishery lease of 20 ponds situated in different villages, containing the names of villages, pond numbers, area of each pond and reserved price. In the proceeding, the Naib Tehsildar, Village Lekhpal and Fishery Inspector were present. With respect to Village Ranipur, approval has been given by the Sub Divisional Officer vide order dated 20/28.2.2014 in favour of Sri Dukhharan, S/o Sri Patiraj, who is kahar by caste, resident of village Ranipur Tappa with respect to pond no. 246, measuring about 1.052 hectare situated at Village Ranipur Tappa Chandpar, Pargana Dhuriapar, Tehsil Gola District Gorakhpur at the rate of Rs. 10,520/- per year. It appears, only two persons have appeared and out of them, person mentioned at serial no. 1, namely, Dukhharan was found eligible on the basis of preference given in Government Order dated 17.10.1995, which operates in the field. Consequently, a recommendation was made by the Committee to execute lease deed in his favour. So far as fishery lease with respect to pond no. 446 measuring about 0.315 hectare situated in Village Barrah Tappa Chandpar, Pargana Dhuriayap, Tehsil Gola, District Gorakhpur is concerned, recommendation was made in favour of Smt. Kalawati, Wife of Sri Omkar, who is mallah by caste, resident of Village Barrah Tappa Chandpar for a period of ten years at the rate of Rs. 3,250/- per year. Writ C No. 41064 of 2014 was taken up on 8.8.2014, in which following order was passed:
"It is contended that with respect to the settlement of fishery lease of 20 ponds situated in Tehsil Gola, District Gorakhpur, an advertisement was made on 17.2.2014 and the proceeding for settlement of fishery lease was concluded on 19.2.2014. The submission is that it cannot be said to be a proper advertisement as the time between the advertisement and the date of settlement of lease is very less, which is hit by Article 14 of the Constitution of India as well as the law laid down by the Full Bench of this Court in the case of Ram Kumar and Others Vs. State of U.P. And Others 2005(99) RD 823.Learned counsel for the petitioner further submits that there was only one applicant in the proceeding for settlement of fishery lease in respect of pond no. 446 measuring about 0.315 hectare situated at Village Barrah, Tehsil Gola, District: Gorakhpur, in her favour recommendation was made, without considering the loss of revenue of the State as well as Gaon Sabha.
Learned standing counsel as well as counsel for the gaon sabha have submitted that the petitioner has no locus standi to file this writ petition as under the preferential category the petitioner is below to the Machhua community and the respondent, in whose favour recommendation has been made, she belongs to Machhua community.
Be that as it may, prima facie, it appears that the sufficient time was not given for settlement of fishery lease pursuant to the advertisement dated 17.2.2014 and also efforts have not been made to get the participation of other eligible persons in the proceedings which amounts to denial of equal opportunity.
Considering the same, learned standing counsel is directed to seek instructions in this matter.
As prayed, put up this case on 19.8.2014 as fresh.
On that date, the Sub Divisional Officer, Gola, District: Gorakhpur shall remain present before this Court along with complete records with a view to assist the learned standing counsel.
Copy of this order shall be supplied to the learned standing counsel during the course of the day on payment of usual charges for necessary compliance. "
Pursuant thereto, the matter was again taken up on 19.8.2014 and the following order was passed:
"In Writ C No. 41064 of 2014 Sri Om Prakash Singh has filed Vakalatnama on behalf of respondent no.5 which is taken on record.
Both the writ petitions relate to the settlement of fishery lease, settled pursuant to the advertisement published in daily newspaper 'Rashtriya Sahara'. Writ C No. 41064 of 2014 is related to village Barrah, Tehsil Gola, District Gorakhpur with respect to Pond No. 446 measuring about 0.315 hectare whereas Writ C No. 39590 of 2014 is with respect of Pont No. 246 measuring abuot 1.052 hectare situated in Village Ranipur, Rappa Chandpar, Pargana Dhuriapur, tehsil Gola, District Gorakhpur. The settlement has been challenged on the ground that notice was published in the newspaper on 17.2.2014 and settlement was made on 19.2.2014 with respect to ponds in question along with 18 other ponds, details of which find mention in the advertisement.
In this case records were summoned. From the perusal of the record relating to Writ C No. 39590 of 2014 it transpires that the information regarding settlement of lease was neither given to the Adyaksha, Gram Sabha, Ranipur nor any munadi was made. However, on the recommendation of the Tehsildar, the Sub Divisional Officer has approved for exeuction of lease in favour of respondent no.5 at the annual rate of rent of Rs. 10,520/-. It has been brought to my notice that the Government Order dated 17.10.1995 which provides procedure for settlement of lease over Gaon Sabha ponds, requires, that settlement of lease has to be made in Shivir by a Committee of which Tehsildar/ Nair Tehsildar will be the Chairman along with Secretary, Land Management Committee, a nominee of the District Magistrate from amongst the Machua Cooperative Society and an officer of the Fishery Department. From the perusal of the report dated 18.5.2014 in respect of the settlement of lease of Gaon Sabha, Ranipur it transpires that there was no notice to the Adyaksha, Gram Sabha, Ranipur nor any munadi was made in the Gaon Sabha even then the lease has been executed between respondent no.5 and State on the approval of the Sub Divisional Officer. So far as Munadi with respect to settlement of Village Barrah is concerned from the perusal of the record I do not find in the paper mentioning the Munadi with respect of settlement of lease.
Sri Moti Lal Sub Divisional Officer, Tehsil Gola, District Gorakhpur who is present before the Court is directed to file an affidavit furnishing the following information supported with the records:
(i) As to whether with respect to the poinds advertised i.e. of 20 villages the proceeding was completed on 20th February, 2014, if complted in whose supervision and as to whether required persons before whom allotment has to be made in view of G.O. dated 17.10.1995 were present or not, if present, their details.
(ii)As to whether Munadi was made with respect to the settlement of lease of the respective Gaon Sabhas and in case it has been made the details of which shall also be furnished on the basis of the records.
Put up this case as fresh on 28th August, 2014. The record produced today shall be kept in the sealed cover with the office of the Chief learned standing counsel. "
Pursuant thereto, personal affidavits were filed in both the writ petitions by Sri Moti Lal Singh, Sub Divisional Officer, Gola, District: Gorakhpur, from the perusal of which following facts reveal:
DETAILS OF AUCTION S/N Name of Village, Arazi/Pond No. with area.
Date of Advertisement in the News paper.
Date fixed for settlement of lease/ auction Persons participated in the proceeding of settlement of fishery lease.
Presence of the persons of the Committee constituted under the Government Order dated 17.10.1995.
1.
Makrandpur, Pond No. 206, 0.768 Hectare.
17.2.2014 19.2.2014 Total four person have applied, out of which three persons withdrew their applications. Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
2. Nivi Dubey, Pond No. 183 (Kha), 0.413 Hectare.
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No application has been received in respect of the village in question.
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3. Ranipur Tappa Chandpar, Pond No. 246, 1.012 Hectare.
17.2.14 19.2.14 Total three persons applied. Sri Dukhran has been approved for the grant of the lease on the basis of preference and being the resident of Gram Panchayat concerned. Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
4. Atraura, Pond No.407, 0.247 Hectare.
17.2.2014 19.2.2014 Total two persons applied. Smt. Sheetal Devi has been approved for grant of the lease on the basis of preference provided in Govt. Order dated 17.10.1995 and being Mallah Machhua by caste. Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
5. Badeyla, Pond No. 1116, 0.425 Hectare.
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No application has been received in respect of the village in question.
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6. Tiha Mohammadpur, Pond No. 809, 0.741 Hectare.
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No application has been received in respect of the village in question.
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7. Khakhaijkhor, Pond No. 79, 0.490 Hectare.
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No application has been received in respect of the village in question.
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8. Semri, Pond No.315, 0.393 Hectare.
17.2.2014 19.2.2014 Total two persons applied. The person belonging to the cast of kahar has been approved for the lease. Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
9. Semri, Pond No. 325, 1.259 Hectare.
17.2.2014 19.2.2014 Total two persons applied, out of which, one applicant has withdrew his application.
Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
10. Semri, Pond No. 771, 0.601 Hectare.
17.2.2014 19.2.2014 Total two persons applied, out of which, one applicant has withdrew his application.
Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
11. Banvarpar, Pond No. 558, 0.447 Hectare.
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No application has been received in respect of the village in question.
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12. Barrah, Pond No. 446, 0.315 Hectare.
17.2.14 19.2.2014 Only one person applied belonging to Mallah caste of the Gram Panchayat concerned.
Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
13. Sukrauli, Pond No. 97, 0.308 Hectare.
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No application has been received in respect of the village in question.
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14. Chireiyadad, Pond No. 7, 0.409 Hectare.
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No application has been received in respect of the village in question.
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15. Keshavapar, Pond No. 217, 0.547 Hectare.
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No application has been received in respect of the village in question.
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16. Keshavapar, Pond No. 95, 0.441 Hectare.
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No application has been received in respect of the village in question.
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17. Rampur Pandey, Pond No. 48, 0.411 Hectare.
17.2.2014 19.2.2014 Total two persons applied, out of which, one applicant was from outside the Gram Panchayat concerned, therefore, the lease has been extended to Sri Jogendra Sahani being the Machhua by caste and resides in the same Gram Panchayat. Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
18. Dhudhuri, Pond No. 62, 0.243 Hectare.
17.2.2014 19.2.2014 Total three persons applied, out of which, two persons are from SC caste, therefore, lease was extended in favour of Sri Ramnajar being kahar by caste. Lekhpal, Fishery Inspector and Naib Tehsildar.
Member of the Machhua community as well as the Village Pradhan were not present.
19. Kauwadil, Pond No. 185, 0.866 Hectare.
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No application has been received in respect of the village in question.
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20. Khuthan Khas, Pond No. 65, 0.413 Hectare.
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No application has been received in respect of the village in question.
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From the perusal of the affidavits and the chart, detailed above, it is apparent that in the proceedings, neither the Adhyaksha/Chairman of the Land Management Committee of the concerned village, nor any nominated Member of the Machhua community was present and the approval was granted in absence of full coram for considering the persons for settlement of the fishery lease in view of the Government Order dated 17.10.1995. While assailing this approval, learned counsel for the petitioners contended that the advertisement dated 17.2.2014, published in newspaper Dainik Rashtriya Sahara is hit by Article 14 of the Constitution of India, as the publication was made on 17.2.2014 fixing 19.2.2014 for settlement of fishery lease, only two days after the advertisement. Therefore, the eligible persons had neither appropriate knowledge, nor enough time to apply for the same. It is further contended that in view of the Government Order dated 17.10.1995, the grant of lease has to be considered in presence of Tehsildar/Naib Tehsildar, any Officer of the Fishery Department, Secretary, Adhyaksha/ Chairman of the Land Management Committee and Member nominated by the District Magistrate from the Machhua community, but in this case, neither Adhyaksha/Chairman of Land Management Committee, nor any Member of the Machhua Community was present, therefore, also the approval is vitiated. It is not in dispute that the fishery lease has to be executed in accordance with the provisions contained in Government Order dated 17.10.1995. For appreciating the controversy, it would be appropriate to go through the following provisions contained in the aforesaid Government Order:
5- izfrcU/k ;g gS fd izfrcU/k ;g gS fd 1- fdlh bPNqd O;fDr ds u gksus ij lEcfU/kr U;k;iapk;r rRi'pkr~ lEcfU/kr fodkl[k.M vkSj rRi'pkr~ lEcfU/kr tuin dh bPNqd O;fDr dks iV~Vk fn;k tk ldsxkA lEcfU/kr xkWo lHkk {ks= dh fdlh bPNqd iathd`r lgdkjh lfefr ds u gksus ij lEcfU/kr U;k; iapk;r rRi'pkr~ lEcfU/kr fodkl[k.M vkSj rRi'pkr~ lEcfU/kr tuin dh bPNqd iathd`r lgdkjh lfefr gks iV~Vk fn;k tk ldsxkA 2 ;fn ojh;rk dze esa ,d ls vf/kd O;fDr@ lfefr;kW gksa rks muds izkFkZuk&iz= izkIr dj fu/kZurk@vko';drk ds vk/kkj ij iV~Vk vkoaVu lfefr }kjk fopkj dj iV~Vk fu"ikfnr fd;k tk;sxkA ;fn ojh;rk dze esa ,d ls vf/kd lfefr;kW gksa rks muds izkFkZuk&i= izkIr dj fu/kZurk] vko';drk ds vk/kkj ij iV~Vk vkoaVu lfefr }kjk fopkj dj iV~Vk fu"ikfnr fd;k tk;sxkA 3- ;fn uhykeh esa fdlh ekeys esa fdlh U;k;ky; }kjk LFkxukns'k ikfjr dj fn;k tkrk gS rks ml n'kk esa ijxukf/kdkjh }kjk nSfud HkkMs+ ij eRL; vk[ksV dh O;oLFkk dh tk;sxhA tgkW rd lEHko gks iV~Vk nsus dh dk;Zokgh rglhy Lrj ij vk;ksftr f'kfojksa ds ek/;e ls dh tk;sxhA mijksDr f'kfojksa dk O;kid izpkj fd;k tk, vkSj f'kfojksa esa mijksDr iSjk 60 ¼2½¼[k½ ds vuqlkj ik= O;fDr;ksa dks vkeaf=r fd;k tk,A lEcfU/kr Hkwfe izcU/kd lfefr;ksa ds v/;{k ¼iz/kku rFkk lsdszVjh½ ys[kiky rFkk rglhynkj ;k uk;crglhynkj f'kfojksa es mifLFkr gksa vkSj f'kfojksa esa Hkwfe izcU/kd lfefr ds ijke'kZ ls lgk;d funs'kd eRL;@eq[; dk;Zdkjh vf/kdkjh dh ,oa ftykf/kdkjh }kjk izR;sd rglhy ds ukfer eNqvk leqnk; ds izfrfuf/k ds laLrqfr ij gksxkA ijxukf/kdkjh }kjk iV~Vk Lohd`r fd;k tk,A ;fn Hkwfe izcU/kd lfefr fdlh rkykc dk iV~Vk djus esa vleFkZ jgrh gS ;k ijxukf/kdkjh bl ckr dh vko';drk vuqHko djsa fd fdlh rkykc dk iV~Vk fn;k tkuk okafNr gksxk rks og fcuk Hkwfe izcU/kd lfefr ds izLrko ds Loiszj.kk Hkh ,slk iV~Vk ns ldrk gSA ;fn iV~Vsnkj }kjk iV~Vk fn;s tkus dh frfFk ;k rkykc lq/kkj ds fy, Lohd`r _.k ds Hkqxrku ls rhu o"kZ dh vof/k esa rkykc lq/kkj ,oa eRL; ikyu dk dk;Z ugha fd;k tkrk rks dysDVj dks ;g vf/kdkj gksxk fd Lo;a ;k vU; fdlh lzks= ds tkWp djkdj iV~Vk fujLr dj nqckjk iV~Vk nsus dh dk;Zokgh fu;ekuqlkj lEiUu djk;saA bl lEcU/k esa ftykf/kdkjh dk vkns'k vfUre gksxk ftls fdlh U;k;ky; esa pqukSrh ugh nh tk ldsxhA ;fn uhykeh esa fdlh ekeys esa fdlh U;k;ky; esa LFkxukns'k ikfjr dj fn;k tkrk gS rks ml n'kk es ijxukf/kdkjh }kjk nSfud HkkM+s ij eRL; vk[ksV dh O;oLFkk dh tk;sxhA tgkW rd lEHko gks iV~Vk nsus dh dk;Zokgh rglhy Lrj ij vk;ksftr f'kfojksa ds ek/;e ls dh tk,A mijksDr f'kfojksa dks O;kid izpkj&izlkj fd;k tk, vkSj f'kfojksa esa mijksDr iSjk 60 ¼2½ ¼[k½ ds vuqlkj ik= O;fDr;ksa dks vkeaf=r fd;k tk,A lEcfU/kr Hkwfe izcU/kd lfefr;ksa ds v/;{k ¼iz/kku½ rFkk lsdszVjh ¼ys[kiky½ rFkk rglhynkj ;k uk;crglhynkj f'kfojksa es mifLFkr gksa vkSj f'kfojksa es Hkwfe izcU/kd lfefr ds ijke'kZ ls lgk;d funs'kd eRL;@eq[; dk;Zdkjh vf/kdkjh ,oa ftykf/kdkjh }jk izR;sd rglhy ds fy, ukfer eNqvk leqnk; ds izfrfuf/k ds laLrqfr ij gh ijxukf/kdkjh }kjk iV~Vk Lohd`r fd;k tk,A ;fn Hkwfe izcU/kd lfefr fdlh rkykc dk iV~Vk djus esa vleFkZ jgrh gS ;k ijxukf/kdkjh bl ckr dh vko';drk vuqHko djsa fd fdlh rkykc dk iV~Vk fn;k tkuk okaNuh; gksxk rks og fcuk Hkwfe izcU/kd lfefr ds izLrko ds Loiszj.k ls Hkh ,slk iV~Vk ns ldrk gSA ;fn iV~Vsnkj }kjk iV~Vk fn;s tkus dh frfFk ;k rkykc lq/kkj ds fy, Lohd`r _.k ds Hkqxrku ls rhu o"kZ dh vof/k esa rkykc lq/kkj ,oa eRL; ikyu dk dk;Z ugha fd;k tkrk gS rks dysDVj dks ;g vf/kdkj gksxk fd os Lo;a ;k vU; fdlh lzksr ls tkWp djkdj iV~Vk fujLr dj nqckjk iV~Vk nsus dh dk;Zokgh fu;ekuqlkj lEiUu djk;sA bl lEcU/k esa ftykf/kdkjh dk vkns'k vfUre gksxk ftls fdlh U;k;ky; esa pqukSrh ugh nh tk ldsxhA From the perusal of the above provisions, it is clear that the camp for settlement of fishery lease has to be organized, after wide publication, inviting the eligible persons for participation as provided in para 60 (2)(b). In the camp, the Chairman of the Land Management Committee (Pradhan and Secretary), Lekhpal and Tehsildar/Naib Tehsildar are required to be present. The approval for grant of fishery lease has to be granted by the Sub Divisional Officer after consultation of Land Management Committee and recommendation of Assistant Director (Fisheries)/Chief Work Officer and the member of Machhua community nominated by the District Magistrate.
The purpose for issuing the aforesaid Government Order is to eliminate the middlemen in order to save the particular weaker section of the society from exploitation, to generate employment and to improve the economic condition of the Machhua community looking into the Directive Principles of the State Policy embodied in the ideal of socio-economic justice as enshrined in the Preamble to the Constitution of India. In furtherance thereof, it was made obligatory upon the authorities concerned to ensure the participation of the larger section of the Machhua community, either individually or through cooperative society formed from amongst the members of Machhua community.
Here in this case, it would appear from the record of the counter affidavit that there was lack of consultation of the Chairman of the Land Management Committee and absence of recommendation of the Assistant Director (Fisheries)/Chief Work Officer, member of the Machhua community and without their consultation/recommendation, the approval was made by the Sub Divisional Officer. The consultation of the Chairman of the Land Management Committee and the recommendation of the Assistant Director (Fisheries) / Chief Work Officer and member of the Machhua community before approval and finalization of the lease is purposive and the purpose is to protect the interest of an individual of Machhua community and its society at large, as no one can have better knowledge of the economic condition of the person in whose favour proposal is going to be made to settle the lease or their active participation in the process of settlement of lease. The purpose is also to eliminate the middlemen and the persons, who are ineligible within the letters and spirit of the Government Order dated 17.10.1995.
So far as this case is concerned, that is apparently lacking, as has been noticed, from the perusal of the counter affidavit filed by the State authorities itself, in the preceding paragraphs.
Another important feature, as has been noticed by the Full Bench of this Court in Ram Kumar and Others Vs. State of U.P. And Others 2005(99) RD 823, is the wide publicity of the proposed proceedings for settlement of fishery lease. The Full Bench has observed as under:
"26. The settlement of fishery according to the directions under Section 126 of 1950 Act is settlement of property vested in the Gaon Sabha which should be done in a prescribed manner giving opportunity to all eligible persons to participate. The Revenue Officers, who are entrusted with duty, shall ensure proper advertisement of the date of settlement so that all persons who are eligible to participate have sufficient notice of the proposed settlement. The Government order itself contemplate "wide publicity". The Sub Divisional Officer himself should see that wide publicity is made. Now a days newspapers having wide circulation in the area is surest mode to publish a proposed settlement. As a general rule the Sub Divisional Officer should publish in a newspaper having wide circulation of the settlement of fishing right to enable all concerned to participate. As observed above, in the event there are more than one person in one particular category of preference, the Sub Divisional Officer is not prohibited to award the said fishing right by inviting bids by tender or auction."
As has been noticed in this case, there is a very short gap of two days in between the advertisement and the actual date fixed for settlement of lease. Here, the advertisement was made on 17.2.2014 fixing 19.2.2014 for settlement of fishery lease. In this short span of time, neither eligible persons at large could have detail knowledge, nor could prepare themselves for participation in the proceeding of fishery lease, therefore, there must have been a reasonable time (gap) in between the date of advertisement and the date fixed for settlement of fishery lease. The "reasonable time" as explained in Advanced Law Lexicon (4th Edition, 2013) means:
"Reasonable Time: is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case.
A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly"; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.
Reasonable time always depends on the circumstances of the case.
The words "not more than six months" appear to be directory and the same cannot curtail the accepted meaning of the expression "reasonable time". "Reasonable time" means such time, as it appears reasonable after taking into account all the actual circumstances of the case. Such time will have to be determined with the circumstances of the case and with particular reference to the means and ability of the person by whom the contract is to be performed or the duty to be discharged (Gopal Krishnan Pal Vs. Director General of Shipping, MLJ: YD (1982), p. 41: 1981 Lab IC 170). [Indian Marchant (Seamen Employment Office, Calcutta) Rules (1954), Rr. 29-A and 49]."
In the case of Veerayee Ammal Vs. Seeni Ammal (2002) 1 SCC 134 para 13: AIR 2001 SC 2920, the Apex Court has defined the expression 'reasonable time' as so much as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. Further, in the case of Poole Vs. Smith's Car Sales (Batham), [1962] 2 All ER 482 (CA), it has been held that "Reasonable time" is a term that must be interpreted according to the facts of each case. Therefore, in a contract for the sale or return of a car, the "reasonable time" after which the buyer is deemed to have accepted may be determined with reference to the conditions of the car trade. In the case of Roshanara Begum Vs. Union of India (FB) (AIR 1996 Del 206, 2017: Est Corpn. Vs. C.C. Santha Kumar (2007) 1 SCC 584, para 36), the term "reasonable time" has been defined as "Reasonable time" must be in each case depend upon the particular circumstances, the nature of the commodity, the question of transport, the times during which the contract was entered into and so on. 48 Bom. LR 821. For determining the "reasonable time", particularly in this case, it would be necessary to look into the pre-requirement for participation in the proceedings of fishery lease. Paragraph 5(2) of the Government Order dated 17.10.1995 speaks about an eventuality where there are more than one person/society present for the grant of lease and according to that, if there are more than one person/society, the lease has to be executed on the basis of the poverty/need for grant of fishery lease. The poverty cannot be judged by the Committee without there being any solid/concrete material available before the Committee and for that purpose, the income certificate issued by the competent authority of the concerned persons may be material. Another requirement would be the caste certificate, as the priorities in the Government Order for participation in the proceeding is based on the caste/community line. For issuing a caste certificate and income certificate, there is a provision in the schedule of the U.P. Janhit Guarantee Adhiniyam, 2011, according to which Tehsildar happens to be the competent authority for issuing the aforesaid certificates and he is supposed to issue the certificates within 20 days from the date of application. In my opinion, the caste and income certificates are just like two wheels of the Government Order dated 17.10.1995 for carrying out its purpose and object and in absence of any of the two, its object cannot be achieved, therefore, looking into the statutory period of 20 days for obtaining the required certificates, in my considered opinion, the reasonable time in between the date of advertisement and the date fixed for settlement of fishery lease would be at least four weeks. It may also be noticed that almost in similar case, this Court had occasion to consider another aspect of the advertisement for settlement of fishery lease in Pramod Kahar and Others Vs. State of U.P. and Others (2012 (94) ALR 538), wherein following observation was made:
"It is experienced that the lease are being executed without there being a proper advertisement which amounts to denial of equal opportunity to those who fall in the eligibility zone for consideration for lease and are being deprived of their right to participate in lack of proper information given in the advertisement. Taking note of this fact, I would like to issue a writ of mandamus directing the Principal Secretary Revenue/Secretary Revenue, U.P. Government to issue a circular requiring the officers of the State Government who are responsible for settlement of fishery lease, while issuing the advertisement for grant of fishery lease, they must take care and issue the advertisement in a newspaper having wide circulation in the area, in unambiguous (clear words), disclosing all the details namely the pond number, its area, place where it is situated, the eligibility of the persons who can participate in the proceedings and other requirements, if any, for participation in the proceeding of allotment, in addition to other mode of advertisement as provided in the relevant government orders for settlement of fishery lease. It is further provided while issuing the circular a model format be annexed along with the circular for the said purpose. To my mind, the very purpose of the advertisement is to make aware of the public at large who falls in the eligibility zone for consideration/participation in the proceeding and in absence of that, it cannot be said to be a valid advertisement. "
In brief, the entire proceeding appears to be vitiated on the following grounds:
1.There was no proper advertisement, as there were only two days gap in between the advertisement and the date for settlement of fishery lease.
2.There was no munadi in the village concerned as required in the Government Order dated 17.10.1995.
3.The Awantan Samiti was neither properly constituted, nor there was any consultation and recommendation of the Land Management Committee and Assistant Director (Fisheries)/ Chief Work Officer and the member of the Machhua community.
So far as the non-participation of the Member of the Machhua community is concerned, the respondents have taken a case that Machhua Society was suspended. However, later part of the counter affidavit discloses that the Committee was constituted in July, 2014. In my considered opinion, in a case of fishery lease, the recommendation of the Member of the Machhua community as well as Assistant Director (Fisheries)/Chief Work Officer is mandatory. Therefore, every effort should be made to get nomination of a member of Machhua community after its valid formation before issuing an advertisement for settlement of fishery lease of a pond situated in a Gaon Sabha, so that the required recommendation of the member nominated can be obtained. Another shortcoming in the proceeding is the non-participation of the village Pradhan and his consultation. Here also, the State authorities have acted in haste and without there being any proper intimation to the village Pradhan and without his consultation, the approval for grant of the lease has been given, which amounts to abuse of power and manifestly erroneous. In view of the foregoing discussions, the writ petitions succeed and are allowed. The impugned order dated 20.2.2014 passed by the Sub Divisional Officer, Gola, District Gorakhpur in Writ C No. 39590 of 2014, by which the approval has been granted for executing the fishery lease in respect of pond no. 246, measuring about 1.052 hectare situated at Village Ranipur Tappa Chandpar, Pargana Dhuriapar, Tehsil Gola District Gorakhpur and the impugned order dated 21.2.2014 passed by the Sub Divisional Officer, Gola, District Gorakhpur in Writ C No. 41064 of 2014, by which the proposal to grant fishery lease, over pond no. 446 measuring about 0.315 hectare situated in Village Barrah Tappa Chandpar, Pargana Dhuriayap, Tehsil Gola, District Gorakhpur are hereby quashed. So far as the fishery leases of the remaining villages are concerned, pursuant to the advertisement dated 17.2.2014, the District Magistrate, Gorakhpur is directed to look into the entire matter and after issuing notices to the concerned persons, take appropriate decisions expeditiously, but not later than four months from the date of receipt of certified copy of the order of this Court and thereafter, he shall file an affidavit, along with the decisions taken by him, before the Registrar General of this Court, which shall be kept on the record of the above writ petitions. Taking note of the observations made herein above, the Principal Secretary/Secretary (Revenue), Government of U.P. is directed to issue a circular intimating all the Commissioners of the Division, District Magistrates of the districts and the Sub Divisional Officers of the Tehsils to ensure that while making an advertisement for the settlement of fishery lease, the requirement of caste certificate and income certificate be made compulsory. The participants be required to annex the current income certificate, not prior to six months from the date of advertisement, and the caste certificate. There must be at least four weeks gap in between the date of advertisement and the date fixed for settlement of fishery lease. It has been noticed in various cases that persons have approached this Court after being non-suited on the ground of not filing of income and caste certificates, whereas their case was that they had annexed the same and shown both the certificates to the authority concerned and the respondents stand was that they had not annexed the certificates, therefore, the concerned respondent, who is supposed to receive the applications, must give receipt of the papers received from the participants along with the application. A certified copy of this judgment be supplied to the learned Chief Standing Counsel, free of cost, within three days from the date of this judgment for intimation to the Principal Secretary/Secretary (Revenue), Government of U.P. and the District Magistrate, Gorakhpur. Order Date :-8.1.2015 Amit Mishra