Ram Bharosey Lal vs State of U.P. and Others

M. Katju and K.N. Sinha, JJ.—Heard learned counsel for the petitioner and learned standing counsel.

It appears that petitioner was given a fishery lease from 28.12.1991 to 27.12.2001. The period of that lease expired on 27.12.2001. It is alleged in paragraph 7 to the writ petition that the fishery lease was renewed for a further 10 years from 13.5.2002 to 12.5.2012 (Annexure-5 to the writ petition). He alleged that in pursuance of the renewal, he has deposited renewal fee charge. However, the renewal has been cancelled (Annexure-1 to the writ petition) by the S.D.M.. Badaun vide his order dated 9.7.2002. Aggrieved by this order, the petitioner has approached this Court.

It has been repeatedly held by several decisions of this Court that after the term of the fishery lease has expired, there cannot be any renewal but there should be a fresh public auction or public tender after advertisement in newspapers having wide circulation vide Ashok Kumar v. State 1995 ACJ 1066 , Panchoo Vs. Collector/District Magistrate, Gorakhpur and others, etc. This is necessary in order to comply with Article 14 of the Constitution. It is surprising that in spite of several decisions of this Court, the authorities are flouting the Court''s orders and deliberately renewing fishery leases. It appears that this practice is being done in collusion with the authorities, although it is wholly illegal.

We, therefore, again reiterate that a fishery lease can only be granted after public auction or public tender after publication in well known newspapers having wide circulation. Any lease granted or any renewal of lease without such public auction or public tender and without advertisement in well-known newspapers will be wholly illegal.

We further direct that the persons who can participate in the public auction or public tender of the fishery lease shall not be confined to society or members of any particular caste, e.g. Mallah, Kewat, Dheemar. Kahar, etc. The caste system is a feudal social institution which is wholly outdated in modern times. Under the caste system, every vocation became a caste, e.g., Barhai, Mallah., Chamar, Kumhar, Darzi. Dhobi, etc. Thus, the caste system was based on the feudal, occupational division of labour in society. Upto feudal times, one had no right to choose one''s profession, he had to follow his father''s profession. The reason for this is that upto the feudal age, there were no engineering colleges or technical institutions and hence, the only way one could learn a trade or vocation was to sit with one''s father from childhood and learn his craft.

However, now times have totally changed. We are now living in the age of science and technology. Today, people are often not following their father''s profession. Thus, the son of a Dhobi does not become a Dhobi, he comes to the city and becomes an electrician or motor mechanic, or having acquired education becomes a clerk or even a lawyer, doctor, or engineer. Hence, now a person cannot be compelled to follow his father''s profession.

There have been certain Government notifications directing that leases of fishery tanks should only be given to members or societies of particular castes (e.g. Kewat. Mallah, Dheemar, etc.) In our opinion, these notifications are wholly illegal being violative of Articles 14 and 19(1)(g) of the Constitution as held by the Division Bench of this Court In Panchoo''s case (supra). If these notifications are upheld, it must logically follow that the job of carpenter can only be done by a person of the Badhat caste, the job of washerman can only be done by a person of Dhobi caste, leather work can only be done by a Chamar, etc. This would be ridiculous in the modern age. In our opinion, today anyone can do any kind of work, and hence fishery work, too, can be done by anyone, otherwise Articles 14 and 19(1)(g) will be violated. In our opinion. It is an unreasonable restriction on the right of freedom of trade and profession to confine a vocation to a particular caste. We see no illegality in the impugned order, since the lease was renewed and not settled by fresh public auction or tender after wide publicity. The authorities should now settle it by A public auction or tender after advertising it in well know newspapers.

Petition dismissed.

Let a copy of this order be sent by the Registrar, General of this Court to the Chief Secretary, U. P., who will get it circulated to all the District Magistrates in the State for compliance. A copy of the same will also be sent to the District Magistrates of Budaun and Bulandshahr.