Singhasan vs State of U.P.

@DELETEUPPERDATA

Ran Vijai Singh, J.—Heard Sri Devendra Kumar Shukla holding brief of Sri R.P. Mishra, learned Counsel for the petitioner, learned Standing Counsel for the State respondents and Sri Tariq Maqbool Khan, learned Counsel appearing for the Gaon Sabha. With the consent of learned Counsel for the parties, both the writ petitions are taken up for final disposal.

The writ petition No. 38841 of 2014 has been filed for issuing a writ of certiorari quashing the advertisement dated 15.7.2014 published in Amar Ujala fixing 6th August, 2014 for settlement of fishery lease over Pond No. 433 measuring about 0.672 hectare situated in village Khairahwa, Tappa Bedupar, Tehsil Hata, District Kushinagar whereas writ petition No. 36743 of 2014 (Singhasan v. State of U.P. and others) has been filed with the following prayers:--

(i) To issue a writ, order or direction in the nature of certiorari quashing the orders dated 9.5.2014 and 13.6.2014 passed by the respondent No. 2 (Annexure No. 8 and Annexure No. 10 to the writ petition respectively.)

(ii) To issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to accept the 1/4th amount from the petitioner in pursuance of the auction dated 15.11.2013 and confirm the auction in favour of petitioner and to allot Pokhar/Khasra No. 433 having an area 0.672 hectare situated at Village Khairahwa, Tehsil Hata District Kushinagar finally in favour of petitioner in pursuance of the auction dated 15.11.2013 and execute the agreement in his favour for the period of next ten years as per bid submitted by the petitioner.

(iii) To issue any other suitable writ, order or direction in the nature as this Hon''ble Court may deem fit and proper to meet the ends of justice under the facts and circumstances of the present case.

(iv) To award cost of writ petition to the petitioner.

The facts giving rise to these petitions are that earlier an auction was held with respect to the same pond and the petitioner had participated in the same and offered his bid but for Rs. 5,70,000/.- for the period of ten years and was placed at serial No. 3 whereas the persons, who, were placed at serial No. 1 and 2, have offered Rs. 22,00,000/- and 21,50,000/- respectively but they have not deposited the required amount as directed by the State authorities and in the event of failure of non-depositing the money, the petitioner has filed an application for accepting his bid, which was third highest amongst all for Rs. 5,70,000/- but no order was passed by the Sub-Divisional Officer Hata, Kushi Nagar and the petitioner had been compelled to file Writ-C No. 11335 of 2014 (Singhasan v. State of U.P. and others). On 21.2.2014, the aforesaid writ petition was disposed of with the following observation:--

"Having heard learned Counsel for the parties, this writ petition is disposed of with the observation that for redressal of his grievance, the petitioner may file an appropriate application before the respondent No. 2. In case, such an application is filed along with certified copy of the order of this Court, appropriate order be passed thereon in accordance with law expeditiously but not later than two months from the date of filing of such application".

After the service of the aforesaid order, the petitioner''s representation was rejected by the Collector Kushinagar, vide order dated 9th May, 2014, while doing so the Collector Kushi Nagar has recorded the reason that there is much difference in the previous two bids which were for Rs. 22,00,000/- and Rs. 21,50,000/- and the petitioner''s bid which was for Rs. 5,70,000/-. Against this order, petitioner has filed an application seeking recall of this order, which too was dismissed on 13.6.2014.

Challenging this order, the petitioner has filed Civil Misc. Writ Petition No. 36743 of 2014, which has been entertained and counter affidavit has been sought for but no counter affidavit has yet been filed.

After hearing Counsel for the parties and considering their submissions, I do not feel it appropriate to keep the writ petition pending and waiting for counter affidavit for the simple reason that a recurring loss of public exchequer is going on, therefore on the basis of narration of fact available on record, the writ petition is taken up for final disposal.

It is not in dispute that the lease is to be executed in accordance with the provisions contained in Government Order dated 17.10.1995.

On being confronted as to whether the persons who have offered Rs. 22,00,000/- and 21,00,000/- in previous bid were also of Macchuwa by caste or they were of another caste, learned Counsel for the petitioner very fairly submitted that they were also Macchuwa by caste and resident of the same village. In view of the Government Order dated 17.10.1995, which is meant for settlement of fishery lease, priority has to be given to Machhuwa belonging to the same village, and in absence of the Machhuwa of the same village, the Machhuwa Society of the same village and in absence of the Society of the same village, the Machhuwa Society at the Nyaya Panchayat level and in absence of Nyaya Panchayat level, the priority was to be given to the District level Society and in absence of all, few castes mentioned in the Government order falling in the category of O.B.C. may be given preference. The Collector rejected the petitioner''s representation for the reason that there is a big difference in previous two bids and petitioner''s bid which were for Rs. 22,00,000/-, Rs. 21,50,000/- and Rs. 5,70,000/- respectively. Earlier bid was offered by the persons belonging to the same caste, therefore I do not find any error in the order passed by the District Magistrate, Kushinagar rejecting the petitioner''s application in anticipation of getting more amount by the fresh auction. However, the respondents are directed to permit the petitioners to participate in the auction proceedings scheduled to be held on 6th August, 2014 pursuant to the advertisement dated 15.7.2014. The petitioners are directed to complete necessary formalities, whatsoever is required, for participation in the auction scheduled on 6.8.2014.The petitioners are also directed to file certified copy of the order of this Court before the concerned Tehsildar and the Sub-Divisional Officer. Learned Standing Counsel is directed to communicate this order to the Collector concerned.

The persons who have offered Rs. 22,00,000/- and 21,00,000/- in the earlier proceeding and have not deposited the required amount, it appears, have participated in the earlier auction with a view to frustrate the auction, therefore in case they apply in the present proceedings, they will not be permitted to participate. With the aforesaid observations, both the writ petitions are disposed of.