Bechan Prasad Nishad vs District Magistrate

Ram Surat Ram (Maurya), J.—Heard Sri H.N. Singh, Senior Advocate, assisted by Sri Pramod Kumar, for the petitioner and Standing Counsel, for State of U.P., Sri T.M. Khan, Standing Counsel for Gram Panchayat and Sri Amit Saxena, along with Sri Amrendra Kumar Singh/for Urmila Devi. Writ C. No. 49789 of 2013 has been filed against the order of the Collector dated 31.5.2013, enhancing lease rent of fisheries lease of tank, situated at plot 185-Ga (area 12.797 hectare) of village Sakhani, tappa Malsi Saraini, tahsil and district Deoria.

Writ B. No. 52726 of 2014 has been filed against the order of Board of Revenue, U.P. dated 31.7.2014, cancelling fisheries lease of the petitioner of tank, situated at plot 185-Ga (area 12.797 hectare) of village Sakhani, tappa Malsi Saraini, tahsil and district Deoria.

The petitioner''s case is that Land Management Committee advertized by beat of drum on 21.9.2006 for the meeting scheduled on 30.9.2006 for grant of fisheries lease of tank, situated at plot 185-Ga (area 12.797 hectare) of village Sakhani, tappa Malsi Saraini, tahsil and district Deoria. Thereafter, Tahsildar Deoria advertized in news paper "Hindustan Ka Swarup" on 08.11.2006 for auction of fisheries lease of tank, situated at plot 185-Ga (area 12.797 hectare) of village Sakhani, tappa Malsi Saraini, tahsil and district Deoria at tahsil head quarter on 21.11.2006. In pursuance of the aforesaid advertisement, the petitioner applied for participation in the auction. The petitioner was the only candidate as such fisheries lease was proposed to the petitioner at the rate fixed by the Collector i.e. Rs. 1000/- per hectare for ten years by Tahsildar on 21.11.2006, which was approved by Sub-Divisional Officer on 29.11.2006. The petitioner deposited 1/4th of the auction money on 21.11.2006 and lease deed was executed on 30.11.2006 for a period of 29.11.2006 to 28.11.2016. In pursuance thereof the petitioner has been continuously exercising his fisheries right in aforesaid tank.

Gram Panchayat Sakhani, tappa Malsi Saraini, tahsil and district Deoria filed an application (registered as Case No. 90 of 2012) under section 198(4) of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act) for cancellation of the fisheries lease of the petitioner, on 14.9.2011. On which, the Collector took cognizance on 23.3.2012 and issued notice to the petitioner. It has been stated in this application that the fisheries lease was secretly granted to the petitioner in collusion with earlier Pradhan of the village and tahsil authorities without due publication in the newspapers, which had circulation in the locality of the village. The newspaper "Hindustan Ka Swarup" in which notice for auction was published, had no circulation in the locality of the village as such no one could participate in the auction and lease was granted to the petitioner for meagre amount, causing grave financial loss to public exchequer. In the year 2010, when new election took place then this fraud was noticed by new office bearers of the Gram Panchayat. Land Management Committee then passed a resolution to contest the matter engaging a private Counsel.

The application was contested by the petitioner. It has been stated by the petitioner that lease was granted with the consent of Land Management Committee in the auction held at tahsil head quarter. Land Management Committee has no right to file an application for cancellation of the lease. New Pradhan has mala fide filed the application for cancellation of the lease. The case was filed without prior permission of the competent authority. The case was not filed within limitation. During pendency of the case, Durgawati, Pradhan of the village filed an application dated 8.4.2013 for dismissing the case as withdrawn. It has been stated in the application that Gram Panchayat had filed the case as the lessee had not deposited the instalments of the lease rent. Now the lessee has deposited entire dues at a time as such Gram Panchayat was no more interested to contest the matter and Land Management Committee has passed a resolution in this respect. Thereafter Urmila Rai filed an objection on 30.4.2013 to the withdrawal application of Durgawati and had stated that now the Pradhan had colluded with the lessee and malafide filed withdrawal application although lease was obtained by committing fraud with Tahsil authorities for highly inadequate lease rent. The Collector heard the matter on merit and after hearing the parties, by order dated 31.5.2013, relying upon the judgment of this Court in Ram Kumar v. State of U.P. and others, 2009 (107) RD 557 held that lease rent was inadequate accordingly enhanced the lease rent at the rate of Rs. 5000/- per year per hectare from 29.11.2006 to 20.6.2009 and thereafter at the rate of Rs. 10000/- per year per hectare. The petitioner filed Writ C. No. 49789 of 2013 against the aforesaid order, in which this Court vide order dated 13.9.2013 directed that enhanced amount proposed to be realized from the petitioner under the order dated 31.5.2013 would be subject to the outcome of the writ petition.

Urmila Devi filed a revision (registered as Revision No. 1 of 2013-14) from the order of the Collector dated 31.5.2013. The revision was heard by Board of Revenue U.P., who by order dated 31.7.2014 held that wide publication of auction schedule for grant of fisheries lease of the tank in dispute was not made by Tahsildar, due to which except the petitioner no one had participated in the auction. The auction has been approved by Sub-Divisional Officer without application of mind. On these findings the revision was allowed and proposal for grant of fisheries lease dated 21.11.2006 and approval granted by Sub-Divisional Officer dated 29.11.2006 were set aside. Hence Writ-C No. 52726 of 2014 has been filed. By order dated 16.10.2014 both the writ petition were consolidated and heard together.

The Counsel for the petitioner submitted that object of the Act is of land reform'' and to improve the cultivation. In view of Article 43 of the Constitution, State Government and Gram Panchayat have decided to allot the land vested in it to the member of Schedule Castes, Schedule Tribes as well as agricultural labourers of other communities of the village having no source of livelihood, conferring permanent tenurial right or for abadi sites (except the land mentioned under section 132 of the Act) in order to develop their economic condition. Fisheries development in the State is also undertaken as a development of the land. Fisheries right are granted in the tanks, ponds, river etc. Right of traditional fisher man and cooperative societies formed by them are protected by State Government, making them in the preferential categories for grant of fisheries lease. Thus the object is to improve the financial condition of poor communities of the village and not to earn profit. Fisheries leases are governed by Government Orders issued time to time in exercise of powers under section 126 of the Act (known as Gaon Sabha Manual). By Government Order dated 17.10.1995, paragraph-60(2)(kha) of Gaon Sabha Manual has been amended and the tanks having area of more than two hectares are reserved for Fishermen Co-operative Societies. Land Management Committee advertized by beat of drum on 21.9.2006 for the meeting scheduled on 30.9.2006 for grant of fisheries lease of tank in dispute. Thereafter, Tahsildar Deoria advertized in news paper "Hindustan Ka Swarup" on 8.11.2006 for auction of fisheries lease of the tank in dispute at tahsil head quarter on 21.11.2006. In pursuance thereof, the petitioner, who is the President of Matsya Jivi Sahkari Samiti Ltd., Chak Jagbandhan alias Mishrauli, tappa Malsi Saraini, tahsil and district Deoria, which is a Fishermen Co-operative Societies, applied for participation in the auction. The petitioner was the only candidate as such fisheries lease was proposed to the petitioner at the rate fixed by the Collector i.e. Rs. 1000/- per hectare for ten years by Tahsildar on 21.11.2006, which was approved by Sub-Divisional Officer on 29.11.2006. The petitioner deposited 1/4th of the auction money on 21.11.2006 and lease deed was executed on 30.11.2006 for a period of 29.11.2006 to 28.11.2016. There is no illegality in grant of fisheries lease to the petitioner. Lease rent has been enhanced on the basis of judgment of this Court in Ram Kumar v. State of U.P. and others, 2009 (107) RD 557 although the lease deed had already been executed and this judgment has no application in this case. Rule 115-S provides for filing objection against the auction within forty-two days of the auction. Tahsildar can exercise suo motu power under Rule 115-S(1)(vii) within a period of six months for cancellation of the case. No any objection was filed against the proposal dated 21.11.2006. Under paragraph-60(2)(kha) of Gaon Sabha Manual as amended by Government Order dated 17.10.1995, the collector has limited scope for inquiry for cancellation of the lease on the ground that the lessee has not taken steps for improving the condition of the tank within three years of the grant of loan for that purpose. Section 198(4) of the Act is not applicable in the matter and the application dated 14.9.2011 filed by Land Management Committee under section 198(4) of the Act was not maintainable and orders passed in it is without jurisdiction. Under section 198(6)(b) of the Act, five years limitation has been provided, for issuing show cause notice for cancellation of the lease. In this case, cognizance was taken on 23.3.2012, i.e. after expiry of five years. Pradhan, who had filed the application for cancellation of the lease, filed an application for dismissal of the case as withdrawn. The collector has illegally decided the case on merit by order dated 31.5.2013. Urmila Devi was not aggrieved by the order of the Collector and the revision filed by her was not maintainable. Before Board of Revenue, U.P. fraud has been committed and the revision was allowed even without issuing notice to the petitioner as a vakalatnama has been filed, fabricating signatures of the petitioner by Sri Sandeep Kumar, Advocate. Sri Jaswant Singh, Member, Board of Revenue, U.P. retired on 31.7.2014 and allowed the revision on that day. There was no prayer for cancellation of the lease deed in the revision. Impugned orders are illegal and liable to be set aside.

I have considered the arguments of the Counsel for the parties and examined the record. A perusal of the proposal of Tahsildar dated 21.11.2006 shows that he had proposed for settlement of fisheries lease to the petitioner according to the "provisions of Government Order dated 17.10.1995, judgment of Full Bench of this Court in Bam Kumar v. State of U.P., 2005 (99) RD 823 (FB). and Circular issued by the Collector dated 31.05.2006. Government Order dated 17.10.1995 requires for wide publication and through auction at tahsil level for granting fisheries lease. Full Bench of this Court in Ram Kumar''s case held that newspapers having wide circulation in the locality is the surest mode for publication of proposal for settlement of fisheries lease. In this case, it is alleged that newspapers "Dainik Jagran, Amar Ujala and National Herald" were having circulation in the locality. Newspaper "Hindustan Ka Swarup" had no circulation in the locality. This allegation has been accepted by Board of Revenue. Board of Revenue, U.P. found that as no wide publication was made as such except the petitioner no one could participate in the auction allegedly held on 21.11.2006. This finding has not been challenged by the petitioner. So far as allegation that Land Management Committee has made publication by beat of drum in Gram. Panchayat is concerned that notice was given for the meeting dated 30.9.2006. There is nothing on record to show that Land Management Committee has done any thing on 30.9.2006 as such this notice has no concern. Otherwise also, Land Management Committee was not competent for grant fisheries lease under the Government order dated 17.10.1995 nor it has granted lease.

So far as such the arguments of the Counsel for the petitioner that the object of granting fisheries lease is to improve the financial position of poor communities of the village, traditionally engaged in fisheries business, is concerned, Article 14 provides for equality before law and equal protection of law. Supreme Court in Ananda Behera and Another Vs. The State of Orissa and Another, The Bihar Eastern Gangetic Fishermen Co-operative Society Ltd. Vs. Sipahi Singh and Others, and a Special Bench of this Court in Guddi v. State of U.P., AIR 1977 All 396 (SB) held that right to catch and carry away the fish being a "profit a prendre'' i.e. a profit or benefit arising out of the land, it has to be regarded as immovable property within the meaning of the Transfer of Property Act read in the light of section 3(26) of the General Clauses Act. Thus grant of fisheries lease is a settlement of public property and the persons falling in the same category has right to get fisheries lease and participate in the auction. In order to avoid arbitrary exercise of powers in grant of fisheries lease, Government Order dated 17.10.1995 requires for wide publication at tahsil level and auction for granting fisheries lease at tahsil head quarter. The authorities are bound to follow the procedure given under the law. The procedure auction after wide publication has been approved by Full Bench of this Court in Ram Kumar v. State of U.P. 2005 (99) RD 823 (FB) In the absence of wide publication having been made, auction is arbitrary and violative of Article 14 of the Constitution. It cannot be justified on the ground that object to grant fisheries lease is not to earn profit.

So far as the order dated 31.5.2013 of the collector, enhancing the lease rent on the basis of judgment of this in Ram Kumar v. State of U.P. and others, 2009 (107) RD 557 is concerned, the collector in his order dated 31.5.2013 has noticed the judgment of this Court Babban Ram Vs. State of U.P. and Others, . In this case, this Court has issued a general mandamus, directing the authorities in entire State of U.P. that in future no lease for fisheries right be granted below the rate of Rs. 10,000/- per hectare per year. In the present case, lease was granted on 30.11.2006 as such Sub-Divisional Officer has committed an illegality in ignoring the mandamus issued by this Court Inadvertently, in later part of the order of the collector Babban Ram''s case was not noted.

So far as the arguments that provisions of section 198(4) of the Act is not applicable, is concerned, relevant provisions are quoted below:--

"Section 198(4).--The Collector may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any.

(8) Every order made by the Collector under sub-section (4) shall subject to the provisions of section 333, be final.

Section 333--Power to call for cases.--The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding [other than proceeding under sub-section 4-A of section 198] decided by any Court subordinate to him m which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate Court appears to have:--

(a) exercised a jurisdiction not vested in it by law; or

(b) failed to exercise a jurisdiction so vested; or

(c) acted in exercise of jurisdiction illegally or with material irregularity;

the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit."

Section 198(4) of the Act confers power on the collector for cancellation of allotment/lease of the land. Land as defined under section 3(14) of the Act means except in sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry and includes pisciculture and poultry farming. Thus the allotment/lease of pisciculture is also an allotment/lease of the land and the collector has jurisdiction to examine its correctness under section 198(4) of the Act. A bare reading of the aforesaid provisions, clearly shows that powers as conferred under section 198(4) and section 333 of the Act can. be exercised by the authorities suo motu. A Full Bench of this Court in Ramakant Singh Vs. Deputy Director of Consolidation, U.P. and Others, while interpreting the provisions of section 48 of U.P. Consolidation of Holdings Act, 1953, held that if the authorities has jurisdiction to exercise powers suo motu then such power can be exercised on the application made by any party in this respect although such application was otherwise defective. Thus the orders passed by the Collector and Board of Revenue, U.P. cannot be questioned on the grounds that the application and the revision was not filed by the aggrieved persons as under the law they can exercise jurisdiction suo motu on the matter being brought to their notice by any person.

So far as the arguments that under section 198(6)(b) of the Act, five years limitation has been provided, for issuing show cause notice for cancellation of the lease, is concerned, by virtue of section 29(2) of the Limitation Act, 1963, the provisions section 4 to 24 of the Limitation Act, 1963 are applicable. Section 17 of Limitation Act, 1963 provides that in case fraud being committed then limitation would run from the date of the knowledge of such fraud. In this case the allegation was that fraud has been committed in obtaining the fisheries lease as such from the date of knowledge of fraud, the application was within time as held by this Court in Suresh Giri and Others Vs. Board of Revenue and Others,

The arguments of the Counsel for the petitioner that Board of Revenue, U.P. did not issue notice to the petitioner and allowed the revision on the basis of fraud being committed as a vakalatnama has been filed, fabricating signatures of the petitioner by Sri San-deep Kumar, Advocate and Sri Jaswant Singh, Member, Board of Revenue, U.P. retired on 31.7.2014 and allowed the revision on that day, do not inspire any confidence as the petitioner has filed Writ-C No. 49789 of 2013 through Sri Sandeep Kumar, Advocate before this Court and his authority has not been challenged. In the revision a written argument was filed by Sri Sandeep Kumar, Advocate on behalf of the petitioner. If he had no authority/instruction, there was no reason for any advocate to argue the case on behalf a person who had not authorised the advocate. Similarly an officer is competent to discharge his official duty till the last date of retirement. As held above, his judgment does not suffer from any illegality on merit. Supreme Court in Roshan Deen Vs. Preeti Lal, , held that writ jurisdiction cannot be exercised to restore illegal order taking into consideration of the technicalities of law. In this case, Sub-Divisional Officer by order dated 29.11.2006 granted lease to the petitioner of the tank of the area of 12.797 hectare for Rs. 1,27,970.00 for a period of ten years, which is highly inadequate. The collusion and fraud is apparent as except the petitioner, no one has participated in the auction although under the Government Order dated 17.10.1995 cooperative societies of State level are authorized to participate in the auction. By cancelling the lease of the petitioner, right of Gram Panchayat has been protected. It is not proper for this Court to restore the collusive allotment. In view of the aforesaid discussion, the writ petitions have no merit and are dismissed.