Peru vs State of U.P.and Others

Sudhir Narain, J.—Learned single Judge has referred the matter in regard to the rights of the Land Management committee for renewal of lease of fisheries rights but no specific question of law has been referred to us.

The question arises on the facts as given in Writ Petition No.3247 (M/S) of 2001 (Peru v. The State of U.P. and others) are that the petitioner was granted lease of fisheries rights by the Land Management Committee of Gaon Sabha, Annapur in respect of pond bearing khasra No.308 measuring about 2 Bighas, 19 Biswas, 18 Biswansis on 15.7.1991. The lessee applied on 20.4.2001 for renewal of the lease for the next 10 years purporting to be under clause 12 of patta dated 19.7.1991 which provided that in case the conduct of the lessee is found satisfactory, the lease can be renewed for the next 10 years. The Gaon Sabha Annapur passed a resolution 17.8.2001 granting patta in favour of respondent Nos.4 to 6 instead of renewing the lease in favour of the petitioner. The petitioner has challenged the resolution of the Gaon Sabha in the present petition.

In Writ Petition No.3179 (M/S) of 2001 (Ram Dhiraj v. State of U.P. and others) the petitioner was granted lease for 10 years on 20.10.1991. He filed an application for renewal of the lease on 17.9.2001 but as no order has been passed, he has sought a mandamus commanding the respondents for renewal of the patta dated 28.10.1991 for the next 10 years under clause 12 of the patta.

When the matter was taken up before the learned single Judge, it was contended that the lease of the public property should be granted by public auction or public tender and not by renewal as it would be against the public policy and reliance was placed on the decisions Ashok Kumar v. State of U.P. and others, 1995 Allahabad Civil Journal, 1066, which was followed in Abdul Gaffar v. State of. U.P. and others, 1998 (16) LCD 246.

Learned Single Judge, however, found that the Apex Court in Secretary. Saryodaya Educational Society (Regd.) v. Ginjala Panasaiah and others. Judgment Today 2000 (7) SC 448 held that if there is no rule regarding public auction, the property of the Gaon Sabha cannot be given on lease or otherwise by public auction. The learned Single Judge observed as under:

"In view of the above fact that there is no rule regarding public auction for grant of lease, a question has arisen to the effect that in the absence of any law or rule whether the court can direct that the lease of fishery rights shall be given through public auction.

In view of the Hon''ble Apex Court''s decision in Secretary, Sarvodaya Educational Society (supra) whether the law laid down by Division Bench of this Court in Ashok Kumar''s case (supra) and Abdul Gaffar''s case (supra) is still a good law. For this, the matter is liable to be referred to the largar Bench. Therefore, the matter shall be placed before Hon''ble the Chief Justice for constituting larger Bench, as early as possible."

The grant of fisheries rights of the Gaon Sabha is governed by the Government Orders issued under Section 126 of the U.P, Zamindari Abolition and Land Reforms Act, 1950 (in short the ''Act''). Subsection (1) provides that the State Government may issue such orders and directions to the Land Management Committee as may appear to be necessary for the purposes of the Act. Subsection (2) provides that 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. The State Government has issued various Government Orders in respect of the grant of fisheries rights in ponds etc.

Para 60 of the U.P. Gram Sabha Manual provides the conditions and the procedure for grant of fisheries rights in ponds etc. Para 60 of the Gram Sabha Manual has been amended from time to time. Para (2) (Ka) provides that the Collector in his discretion, after the expiry of 10 years of lease, can grant patta for the next 5 years if the conduct of the lessee was satisfactory provided that for an area of less than 0.5 acre of the pond shall be left for use by the community. Para (2) (Kha) provides for the procedure for grant of the patta. It provides that the proceedings for grant of patta shall be done at Tehsil Headquarters after giving due publicity. The patta will be granted by the SubDivisional Officer with the consultation of the Land Management Committee and if he finds that the Land Management Committee is unable to grant patta or it it finds that the grant of patta is expedient, he may grant the patta for fishing rights in a pond without consultation of the Land Management Committee. Para (2) (Kha) (1) clearly envisages that the proceedings for grant of patta shall be held at Headquarters of the Tehsil after due publicity which clearly means that it should be held after wide circulation in the newspapers by public auction. The Government Order dated 17.10.1995 has provided for giving preference to Registered Cooperative Societies for settlement of fisheries rights.

In Secretary. Sarvodaya Educational Society (Regd.) (supra) the Gram Panchayat had resolved to use 2 acres of vacant land for the purposes of a public park. Subsequently, the Gram Panchayat, by another resolution, settled the land with the Society for purposes of setting a School. The resolution of the Gaon Panchayat was challenged in the High court and the High Court took the view that the settlement of the land by Gram Panchayat could be done only by public auction and not by private settlement. The Supreme Court held that there was no rule permitting the Gram Panchayat to transfer the land and in absence of conferment of such right, it cannot transfer land even by public auction. In the U.P. Gaon Sabha Manual, however, procedure has been prescribed for settlement of fishery rights by grant of patta and para (2) (Ka) also provides for renewal of the grant of paita for the next 5 years.

On the facts and circumstances of the case, the following questions of law arise for consideration:

(1) Whether para (2)(Ka) is violative of article 14 of the Constitution.

(2) whether period of lease can be extended under the renewal clause of the patta.

The fisheries rights are settled by the SubDivisional Officer under para (2) (Kha1) after consultation with the Land Management Committee or without its consultation on the conditions being satisfied under the said para. The settlement has to be made after due publicity and it has to be done at the Tehsil Headquarters and the public is entitled for making bid and it is the highest bidder who is entitled to get the fishing rights in accordance with the Government Orders. The SubDivisional Officer is to further examine as to whether any fishing Cooperative Society has any preferential right.

The renewal clause as provided under clause (2) (Ka) creates a monopoly in favour of a person holding fisheries rights under a patta. The only condition for its renewal is that his conduct should be satisfactory and if the Collector finds that his conduct was satisfactory, he can grant it for the next 5 years. This will create a monopoly in favour of the lessee. After the expiry of the lease every one is entitled to apply for grant of lease of fisheries rights. This equal opportunity is denied when a monopoly is created in favour of a person by renewal of the lease. The fishing is connected with the livelihood of a person. Every body can participate in a public auction or submit his tender for settlement of fisheries rights. The person, who is a highest bidder, is entitled for consideration for settlement of the fisheries rights.

Secondly, under the renewal clause increase of the rent is only 20% while after the expiry of 10 years, the amount may increase by 100% or more of the amount which was fixed 10 years ago. It will be loss of revenue of the Gaon Sabha. The revenue of the Gaon Sabha depends upon the realization of the amount by settlement of pond for fishing, growing ''singhara'' etc.

Thirdly, after the issuance of the Government Order dated 17.10.1995 certain preferential rights has been given to fishing Cooperative Societies and that subsequent Government Order is to be taken into account for settlement of fishing rights in a pond after the expiry of period of lease granted to a person.

The settlement of the fisheries rights afresh on the ground that such person has a right of renewal either under the agreement or under para 60(2)(Ka) will be in violation of Article 14 of the Constitution for the reason it denies equal opportunity to all the persons concerned. The Division Bench in Ashok Kumar''s case (supra) took the view that after the expiry of the lease, the fisheries rights should be settled only by public auction or public tender and the same view has been expressed in Abdul Gaffar''s case (supra).

The clause for renewal of the lease under the agreement will be invalid as we have held that para 60(2)(Ka) is ultravires to Article 14 of the Constitution. Even otherwise the agreement will be arbitrary without giving an opportunity of equal participation to others as held in Ramana Dayaram Shetty v. The International Airport Authority of India and others, AIR 1979 SC 1628.

In view of the above discussion, our answer to question No.1 is that clause (2)(Ka) is ultravires to Article 14 of the Constitution and is invalid. As regards question No.2 is concerned, our answer is that ''patta'' cannot be renewed for fisheries rights by the Land Management Committee/SubDivisional Officer after the expiry of the period for which it was granted.

The writ petitions shall now be listed before the appropriate Bench for hearing.

(Reference answered accordingly)