Ram Dhari Singh vs State of U.P.and Others

Devi Prasad Singh, J.—Heard Mr. S.N. Tripathi, holding brief of Mr. S.S. Pandey, learned counsel for the petitioner and Mr. Arvind Kumar Singh, learned counsel for the respondent No.6 as well as learned Standing Counsel and perused the record.

Auction of pond No.9/1.104 village Chhitampatti was done on 26.12.2005 by the Naib Tehsildar in pursuance to the advertisement dated 24.12.2005 in newspaper, �Nyayadhish�. Though the Photostat copy of the newspaper has not been filed but it has been produced during the course of hearing. The newspaper itself is taken on record.

It appears that the Gram Pradhan of Village Paliya has submitted a complaint dated 5.1.2006 to the Deputy Collector, Shahganj informin him that the auction of the pond in question was held under back door process by the Naib Tehsildar. Hence, it was requested by her that the auction may be cancelled and the pond may be put to public auction in accordance with rules. In consequence thereof, the SubDivisional Officer had directed for reauction of the pond in question. In pursuance to the order dated 6.1.2006 (Annexure3) passed by the SubDivisional Officer on the application moved by the village Pradhan, the Tehsildar vide order dated 12.1.2006 had directed to reauction of the pond in question. Feeling aggrieved, the petitioner who is an auction purchaser has approached this Court under Art. 226 of the Constitution of India.

The solitary argument advanced by the learned counsel for the petitioner is that the impugned order has been passed in utter disregard of the principle of natural justice. No opportunity of hearing prior to issuance of notice was provided to the petitioner.

On the other hand, it has been submitted by the learned counsel for the opposite party No.6 that since the auction was held without publication in a newspaper 30 days prior to the date of auction, entire auction was bad in law. Hence, the SubDivisional Officer has rightly set aside the auction directing to hold fresh auction.

Controversy with regard to auction of pond for fishery has been settled by two Full Courts'' judgment of this Court, reported in 2004 (96) RD 645: 2004 (22) LCD 86 (FB), Feru v. State of U.P. and others and [2005 (4) ESC (All.): 2006 (24) LCD 59 (FB)], Ram Kumar and others v. State of U.P. and others, wherein it has been held that the auction for fisheries shall be done with due publication in two daily newspapers calling for open participation of the peoples of the locality. However, it shall be proper to reproduce the relevant portion from the judgment of Ram Kumar (supra); to quote:

�12. The contrary view to the aforesaid Division Benches have been expressed by several other Division Benches, namely, Ashok Kumar v. State of U.P. & others; 1995 ACJ 1066, Abdul Gaffar v. State of U.P. and others; 1997 (88) RD 656, Desh Kumar v. State of U.P.; 1990 RD 385, 1999 RD 186; Panchoo v. The Collector/D.M., Gorakhpur and others. The Division Bench in Panchoo''s case (supra) also noted earlier two Division Benches in Ajay Sonkar''s case (supra) and Gram Panchayat Kant''s case (supra). The Division Bench also held in the above case that fishery lease has to be granted after advertising it in widely circulated newspapers and after holding public auctions. The Division Bench held that unless the above procedure is followed, it will be violative of Articles 14 and 19(1)(g) of the Constitution. Following was observed in paragraph 4 of the said judgment:

�4. Shri Swaraj Prakash learned counsel for petitioner has relied upon the decision of a Division Bench of this Court, Ajai Singh v. State of U.P., and the decision in Gram Panchayat v. Collector. In our opinion these decisions are distinguishable as they have not dealt with Article 19(1)(g) of the Constitution. Article 19(1)(g) states that every citizen has freedom to do business or trade. Hence in our opinion every citizen of any community or caste can do business of fishery, and it cannot be restricted to any particular caste or community. Any Rule or G.O. to the contrary is in our opinion violative of Article 19(1)(g) and wholly unconstitutional. We are of the opinion that if the lease in question has been granted without advertisement in well known newspapers having wide circulation and thereafter holding public auction that lease will also be invalid. Hence if as yet no fishery lease after 1997 has been granted after advertisement it in well known newspapers and holding public auction/tender then we direct the authorities concerned to grant it only after following the aforesaid procedure otherwise it will be violative of Articles 14 and 19(1)(g) of the Constitution.�

Noticing the above conflict, learned single Judge has made this reference. Before proceeding to consider the correctness of the views expressed by judgments of various Division Benches, as noted above, it is relevant to note that with regard to one aspect there is no conflict in the views of the above noted Division Benches, i.e., renewal of lease. All the Division Benches have held that renewals of lease is not permissible. With regard to renewal of lease the matter was already referred to a Full Bench and a Full Bench of this Court has answered the same which judgment is reported in 2004 (96) RD 645; Feru v. State of U.P. and others. The Full Bench formulated the question, which arose for consideration in paragraph 8 of the judgment, which is extracted below:

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

Whether para 60(2)(kha) is violative of Article 14 of the Constitution.

Whether period of lease can be extended under the renewal clause of the patta.�

�13. While answering the above two questions, the Full Bench held that Clause (2)(kha) of paragraph 60 is ultra vires of Article 14 of the Constitution and Patta cannot be renewed for fisheries rights by the Land Management Committee/Sub Divisional Officer after expiry of the period for which it was granted. Before proceeding to examine the question any further, it is relevant to note various observations made by the Full Bench in Feru''s case (supra) to examine as to whether the Full Bench in Feru''s case (supra) had also expressed any opinion with regard to the questions which have been referred to this Bench. As noted above before the Full Bench only two questions were referred. Clause (2) (kha) of paragraph 60 of Gaon Sabha Manual provided that the Collector in his discretion after the expiry of 10 years of lease can grant Patta for next five years if the conduct of the lessee was satisfactory. The Full Bench declared the renewal clause in Gaon Sabha Manual in Paragraph 60 (2)(kha) as ultra vires on three reasons, namely, (i) it creates monopoly in favour of a person holding fishery right; (ii) 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; and (iii) after the issuance of the Government Order dated 17.10.1995 certain preferential rights has been given to the Fishing Cooperative Societies and that subsequent Government Order has to be taken into account for settlement of fishing rights in a pond after the expiry of period of lease granted to a person.�

�27. 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 SubDivisional 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 SubDivisional 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 SubDivisional Officer is not prohibited to award the said fishing right by inviting bids by tender or auction.�

The aforesaid Full Bench judgment has been followed by a Division Bench of this Court in the case reported in [2008 (104) RD 633: 2008 (26) LCD 826 (DB)], Ram Avtar v. State of U.P. and others.

A perusal of the newspaper submitted by the learned counsel for the petitioner indicates that the Sub Divisional Officer, Shahganj advertised the auction of pond situated in more than 35 villages. Though the advertisement was published in the newspaper, �Nyayadhish� on 24.12.2005 but it reveals that the date of auction fixed in the newspaper of various villages is of 22.12.2005, 23.12.2005, 24.12.2005 and 26.12.2005. The extract of the newspaper is reproduced as under;

From a plain reading of the impugned notice published in the newspaper, it is evident that the publication in newspaper was done on 24.12.2005 but the auction was done even earlier to the date of publication. The entire auction and sale proceedings scheduled by the SubDivisional Officer, Shahganj seems to be farce and sham. At the face of record, the SubDivisional Magistrate/Revenue Authorities have acted for some extraneous reasons and consideration. It is not clear why the schedule for auction of pond in question and with regard to other ponds was not published keeping in view the two Full Bench''s judgments and other judgments of this Court. It is a sorry state of affairs in the administration. The entire auction and sale of ponds in question as well as other ponds done by the Deputy Collector, Shahganj in pursuance to the said advertisement suffers from apparent substantial illegality. The procedure provided by law has been given a gobye seems to be for extraneous reasons and considerations.

Though the impugned order at the face of record seems to be cryptic and violative of the principle of natural justice but since the entire auction and sale proceeding seems to be farce and sham and was held in violation of the judgments of this Court (supra), the power under extraordinary jurisdiction of Article 226 of the Constitution of India should not be invoked. It is settled law that the jurisdiction conferred by Art. 226 of the Constitution of India should not be exercised to restore an illegal order or a decision taken by the authorities vide AIR 1999 (3) SC 2979, Common Cause, a Registered Society v. Union of India.

In view of above, I decline to exercise power conferred by Art. 226 of the Constitution of India against the impugned orders with regard to reauction of the pond in question.

Apart from above, since at the face of record, the auction of the various ponds of more than 35 villages was held without following the procedure prescribed by law, the District Magistrate, Shahganj is directed to look into the matter and take a decision in the light of the Full Bench judgments of this Court. He shall serve a notice on all the auction purchasers of the pond referred in the present judgment given in pursuance to the advertisement dated 24.12.2005 and thereafter shall proceed to decide the matter with regard to continuance of fishery rights. The District Magistrate, Shahganj is directed to take a decision within two months from the date of receipt of a certified copy of this order. In view of above, no case for interference under Art. 226 of the Constitution of India is made out.

The Registry shall send a copy of this judgment to the District Magistrate, Jaunpur and to the Principal Secretary, Revenue who shall look into the matter and hold an enquiry with regard to the illegal/irregular action of the Sub Divisional Magistrate, Shahganj and may initiate disciplinary proceedings against him. The District Magistrate and Principal Secretary shall submit the action taken report within three months from today.

Subject to above, the writ petition is dismissed.

The learned Standing Counsel shall also communicate the order passed by this Court to the District Magistrate, Jaunpur and the Principal Secretary forthwith.

(Petition dismissed)