Bhagwan Deen vs State of U.P.& Others

We have heard learned counsel for the petitioner, Sri Mohammad Arif Khan, and learned counsel for the concerned Cooperative Societies, Opp. Party Nos. 4 and 5, Sri V.C. Verma and also learned Standing Counsel.

We agree with the learned counsel for the opposite parties that although fisheries have been vested in Gaon Sabha, such vesting is only for the purpose of management while the proprietary rights continued to vest in the State. Accordingly the State Government has full powers to lay down in what manner the fishery rights shall be disposed of from time to time.

We further agree that the provisions of the Gaon Sabha Manual relating to the transfer of fishery rights contained in paragraph 62 are based on directions of the State Government. Such directions can always be amended or super ceded by subsequent directions as provided under section 21 of the General Clauses Act, and subsequent directions will prevail over any previous directions to the extent of any inconsistency between them.

Accordingly, we find no illegality in the G.Os. dated 30.5.81, 20.10.81 and 22.4.83 which are respectively annexures 1 to 3 to the writ petition. Learned counsel for the petitioners has also placed before us a G.O. dated 2.5.81 whereby paragraph 60(2) (Kha) relating to tanks etc. has been amended. The G.O. dated 2.5.81, however, does not relate to rivers.

We are unable to agree with the learned counsel for the petitioner that the provisions in the Gaon Sabha Manual to the effect that there should be auction of fishery rights and that Cooperative Societies should only be given preference and that the local fishermen should have a preference at bidding auction, still holds the field. The G.Os. dated 30.5.81 and 22.10.81 clearly lay down that whenever possible, cooperative societies of fishermen should be established and where such societies are available and willing to take fishery rights on lease on the basis of average income of preceding three years, then auction should not take place. It clearly implies that the provisions of Gaon Sabha Manual relating to auction would hold good only where such societies are not available or not willing to take fishery rights on lease.

The recital in the public notice dated 1.7.83 Annexure4 issued by Zila Bhumi Vyavastha Adhikari on behalf of the Collector, Sultanpur, is not strictly in accordance with these G.Os. The first paragraph of this public notice speaks of auction while the third paragraph speaks of cooperative societies and of preference to be given to the cooperative societies at auction. This is not in accordance with the intent of the aforesaid G.Os. If cooperative societies are available then the fishery rights should be settled with them on the basis of past three years'' average. However, as laid down in the G.O. dated 30.5.81 it is obligatory on the Collector to devide the river into portions of one kilometer each. Moreover, if more than one cooperative societies are candidates for the same portion, then bidding between those cooperative societies will have to take place. The Collector or the Zila Bhumi Vyavastha Adhikari has not devided the river into such portions and has instead invited bids for the entire river portions falling within the district. This is not correct. Indeed, it would be undesirable because the fishermen for whose benefit the government has made provisions regarding formation of cooperative societies will not receive the advantage of the government decision if the course adopted by the Collector is followed.

Accordingly the writ petition is allowed in part to the extent that the public notice Annexure4 is hereby quashed. The Collector shall proceed afresh in accordance with the G.Os. Annexures 1 to 3 as interpreted above. However it is made clear that if any auction has taken place in pursuance of the interim orders of this Court the same shall not be affected by this. [Petition parity allowed]