Hon'ble Mrs. Sunita Agarwal,J.
(DELIVERED BY HON'BLE ASHOK BHUSHAN, J.) These two connected writ petitions in which counter and rejoinder affidavits have been exchanged between the parties, have been heard together and with the consent of learned counsel for the parties are being finally decided.
Writ petition No. 69625 of 2010 (hereinafter referred to as 'first writ petition') has been filed by the petitioner seeking quashing of the entire auction proceedings held on 25.6.2010 for settlement of fishing rights in Sarua Tal. A writ of mandamus also been sought for commanding the respondents to hold fresh auction for settlement of contract of fishing right. The second writ petition No. 62243 of 2011 (hereinafter referred to as 'second writ petition') has been filed by the petitioner challenging the order dated 14.10.2011, passed by the Additional District Magistrate directing the Tahsildar to effect recovery of Rs. 1,21,190/- in pursuance of the recovery certificate dated 8.2.2011. A prayer has also been made for quashing the letter dated 4.2.2011 sent by the Deputy Director Fisheries, Gorakhpur to District Magistrate, Gorakhpur for issuing recovery certificate for recovery of Rs. 1,44,000/- from the petitioner.
The facts giving rise to first writ petition being writ petition No. 69625 of 2010, as emerged from pleadings of the parties are; the petitioner no. 1 is a registered cooperative society of fishermen under the U.P. Co-operative Societies Act, 1965 on 29.5.1973. The State Government issued various Government Orders laying down manner and procedure for grant of fishing right in ponds/reservoirs in the State. Ponds/ Tals have been categorised in four categories. The Sarua Tal which has an area of 256 hectares is category-3 Tal. The State Government had issued various Government Orders including Government Order dated 8.3.2000 which laid down the manner of management of different categories of reservoirs/Tals under the Fisheries Department and Fishing Development Corporation. Paragraph 4 of the Government Order dated 8.3.2000 provided that right of management of pond be made through open auction and the first round auction would be held only amongst the registered Matsya Jivi Sahsakari Societies and in the event required amount is not received, then in second round along with registered cooperative societies, the contractors be allowed to participate in the auction. By Government Order dated 16.1.2006, the procedure laid down in paragraph 4 of the Government Order dated 8.3.2000 was amended and the manner of settlement as provided by the Government Order dated 16.1.2006 provides for five rounds of auction. In first round, the registered Co-operative Societies situated in geographical area of Tal of concerned Gaon Sabhas and concerned blocks will be permitted to participate along with self help group. In the second round along with societies mentioned in the first round, registered societies falling in geographical area of Tahsil and District Level be allowed to participate. In the third round, along with societies mentioned in first and second rounds, the divisional level registered societies be allowed participation and in fourth round, apart from the above, any societies registered in the State be allowed participation and in fifth round, in case reserved price is not received, the contractors shall also be allowed participation.
In accordance with the Government Order dated 16.1.2006, the U.P. Matsya Jivi Sahakari Sangh Ltd. (hereinafter referred to as 'Sangh') issued an auction notice dated 7.6.2010 fixing 25.6.2010 for auction. The petitioner is a registered society situated in geographical area of village near Sarua Tal. In auction, the petitioner as well as another society namely; Shram Shramik Matsya Jivi Sahakari Sangh Ltd. Gopalpur which was also society situated in geographical area, deposited 10% amount i.e. 41000/- and participated in the auction. The respondent no. 5 who is a contractor along with another contractor namely; Jayas Ram also deposited the earnest money. In the auction held on 25.6.2010 along with the petitioner and another society namely; Shram Shramik, the auction Committee permitted the respondent no. 5 and another contractor Jayas Ram to submit their bid in the very first round. The minimum reserved price of Sarua Tal was fixed as Rs. 4,10,000/-. The petitioner gave bid of Rs. 4,12,000, Shram Shramik Sangh Ltd. offered bid of Rs. 4,11,000/- whereas the respondent no. 5 gave the bid of Rs. 4,14000 and Jaisram offered a bid of Rs. 4,15,000/- and thereafter ultimately bid of respondent no. 5 for an amount of Rs. 4,51,000/-was accepted. The petitioner immediately filed a complaint to the Managing Director of the Sangh stating therein that contract has been illegally awarded to the respondent no. 5 which is against the Rules. The petitioner being registered cooperative society was entitled for preference and the contract be granted to the petitioner. Subsequently, the petitioner made an application under Right to Information Act inquiring about the details of auction, its procedure and details of participants in the auction , which were replied on 4.9.2010. The petitioner thereafter filed the first writ petition praying for following reliefs:
"i/- issue a writ, order or direction in the nature of writ of certiorari calling for the records of the case and quashing the entire auction proceedings allegedly held by the respondent authorities on 25.6.2010 in pursuance of Nilami Suchna dated7.6.2010.
ii/- issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to hold fresh auction for settlement of contract in respect of the Sarua Tal category-3."
The facts giving rise to second writ petition as emerged from pleadings of the parties are; the petitioner society was granted contact of Sarua Tal in the year 1983-84 up to 30.6.1988 for an amount of Rs. 1,21,500/- per annum for five years. There being certain default in payment of the instalments, the contract was cancelled on 5.1.1988 after adjusting the security money, an amount of Rs. 1,44,000/- was held to be balance on the petitioner. A recovery certificate dated 14.3.1989 was sent by the Deputy Director, Fisheries Gorakhpur to Collector, Gorakhpur for recovery of an amount of Rs. 1,44,000/- from the petitioner. The Deputy Director, Fisheries Gorakhpur subsequently on 12.2.1996 wrote to the Director, Fisheries that society having deposited Rs. 22,810/- against the recovery, the balance amount of Rs. 1,21,190/- be waived of. The Deputy Director, Fisheries, Gorakhpur wrote that after cancellation of petitioner's contract fresh contract was granted from 4.11.1988 to 30.6.1993 for an amount of Rs. 88,000/- per annum. The amount of Rs. 88,000/- is much less than the amount of Rs. 1,21,500/- on which the petitioner was granted contract. The Deputy Director wrote that no financial loss had been caused to the Government as the contract of the petitioner had already been cancelled, security forfeited and the Tal has already been auctioned hence, there is no justification for any recovery from the petitioner. The Deputy Director also wrote to the Collector on 12.2.1996 requesting him not to proceed with the recovery in view of the recommendations made by the Deputy Director for waiving of the amount. After the recommendation of the Deputy Director dated 12.2.1996, no recovery was pursued against the petitioner. The Director, Fisheries, U.P. Lucknow addressed a letter dated 12.1.2011 to the Deputy Director, Fisheries Gorakhpur stating therein that the recommendation made by him for waiving of the amount of Rs. 1,21,190/- is not in accordance with law hence, Deputy Director should ensure realisation of the balance amount of Rs. 1,21,190/- with interest. After the order dated 12.1.2011 of the Director, the Deputy Director wrote to the Collector on 4.2.2011 to recover the amount. Consequently, the District Magistrate on 14.10.2011 wrote to the Tahsildar to effect the recovery. The second writ petition has been filed by the petitioner praying for the following reliefs:
" A) issue a writ, order or direction in the nature of certiorari quash the impugned order dated 14.10.2011 passed by the respondent no. 5 and order dated 04.02.2011 passed by the respondent no. 3 (Annexure no. 1 and 2 respectively to the writ petition).
B) issue a writ, order or direction in the nature of mandamus directing to the respondents not to recover amount of Rs. 1,21,190/- from the petitioner."
Learned Counsel for the petitioner in support of first writ petition, submitted that grant of contact of fishing right to the respondent no. 5 on the basis of auction dated 25.6.2010, was wholly illegal and against the Government Order dated 16.1.2006. The submission of the learned Counsel for the petitioner is that petitioner as well as Shram Sramik Matsya Jivi Sahakari Samiti being registered cooperative societies of fishermen situated in geographical area of Sarua Tal, were only entitled to participate in the auction and the respondent no. 5, who was a contractor was not eligible to participate in the first round of the bid and the respondents permitted contractor to participate along with the petitioners and other societies in the very first round defeating the very object and purpose of the Government Order dated 16.1.2006 as well as terms and conditions of the auction dated 26.6.2010. It is submitted that grant of contract in favour of respondent no. 5 is wholly illegal and is liable to be set aside.
Learned Counsel for the petitioner in support of the second writ petition contended that the order of the Director dated 12.1.2011, directing for recovery of the amount from the petitioner has been passed after 15 years of the recovery having been not proceeded with only for the purpose of defeating the claim of the petitioner. It is submitted that subsequent auction which took place in the year 1988 being only for Rs. 88000/-, the Deputy Director rightly recommended on 12.2.1996 that no recovery be made from the petitioner and the recovery thereafter was not proceeded with and the order impugned directing for recovery has been passed after lapse of 15 years, which deserves to be set aside. He submits that the contract of the petitioner having been cancelled and subsequent auction being only for Rs. 88,000/-, there cannot be said to be any default on the part of the petitioner.
Sri Zafar Naiyer, learned Additional Advocate General refuting the submissions of learned Counsel for the petitioner, contended that recovery against the petitioner having been initiated pertaining to the auction granted in the year 1983-84, he was not eligible to participate in the auction held on 25.6.2010. He submits that the petitioner being not eligible to participate in the auction, was wrongly permitted participation. It is submitted that the petitioner did not disclose at the time of auction that he was defaulter hence, he was neither entitled to participate in the auction nor for grant of contract. It is submitted that the respondent no. 5 and other contractors were rightly permitted to participate in the auction.
Sri Naiyer further submits that the Director has rightly rejected the recommendation of the Deputy Director dated 12.2.1996 and has issued direction on 12.1.2011 for recovering the amount. He submits that recovery had only been put in abeyance by the Collector, the default has not come to an end. He submits that letter of the Director dated 12.1.2011 having not even been challenged by the petitioner, the petitioner is liable to pay the amount due for the year 1983-84 and there is no ground to set aside the recovery.
Sri Sanjiv Singh, learned counsel appearing for the respondent no. 5 in the first writ petition, justified the auction held on 25.6.2010 on the ground that auction has to be in favour of a person who offers the highest bid. He submits that the respondent no. 5 having offered highest amount, the same was in the interest of the State to earn revenue and no error has been committed in granting contract in favour of the respondent no. 5. He placed reliance on the judgment in the case of Shri Sachidanand Pandey and another Vs. The State of West Bengal & others, AIR 1987 SC 1109.
We have considered the submissions of learned counsel for the parties and perused the record.
The Sarua Tal is category III Tal having a large area of 256 hectares. There is no dispute between the parties that the management/settlement of contract of Tal is to be made in accordance with the Government Order dated 16.1.2006 and as per the terms and conditions of the auction notice issued by U.P. Matsya Jivi Sahakari Sangh Ltd. dated 7.6.2010. State Government issued various Government Orders from time to time for management of ponds/Tal situated in various Gaon Sabhas/local bodies. The Government Orders issued from time to time requires settlement of ponds/Tal in favour of registered cooperative societies of persons of Machhuwara community/fishermen. The ponds/Tal have been categorised according to the area. There are ponds having area of less than 1 hectare and more. The requirement as provided in the different Government Orders for giving rights to the cooperative societies of fishermen is in accordance with the provisions of the part IV of the Constitution of India, Directive Principle of State Policy.
There being conflict between the Division Benches of this Court; whereas the first set of judgements upheld the validity of the Government Orders providing right in favour of co-operative societies to the exclusion of the individuals to some extent and another set of judgements that settlement of ponds be made only by public auction and it be given to the person or society offering the highest amount, the matter was referred to a Full Bench. In the case of Ram Kumar and others Vs. State of U.P. And others reported in 2006 (62) ALR 65, the Full Bench upheld the validity of the Government Orders and laid down that policy in the Government Orders providing preference to the co-operative societies of fishermen is in accordance with the Directive Principle of State Policy and overruled the Division Bench which provided that it should be settled only in favour of person offering highest amount. It is useful to quote paragraphs 19 and 26 of the Full Bench judgment:
"19. The Eleventh Schedule of the Constitution, which is referred to under Article 243-G includes fishery at Item No.5. The directions issued by the State Government contained in Government orders dated 8th July, 1987, 24th April, 1990, 4th January, 1994 and 17th October, 1995 have been issued in exercise of power given to the State Government by Section 126 of 1950 Act read with Rule 115-A(3) of the 1952 Rules. From the aforesaid Government orders, it is to be noted that separate procedures have provided for ponds and tanks of more than two hectares and ponds and tanks of less than two hectares. The Government orders further specifically provides that ponds and tanks of less than 0.5 (half) acre should be reserved only for community use and shall not be let out for fishery. The Government orders provide for a preference in granting lease of fishery. With regard to tanks and ponds up to two hectares the category of preference is different from the ponds of tanks of more than two hectares. With regard to ponds and tanks up to two hectares first category of preference is the persons of same village belonging to Machhua, Kewat, Nishad, Mallah, Bind, Dheevar, Dhhmar, Kashyap, Vatham, Raikawar, Manjhi, Godia, Kahar, Tureha or Turaha community. The preference proceed from Gaon Sabha to Nyaya Panchayat and thereafter to Block. With regard to ponds and tanks of more than two hectares the Cooperative Societies even of district level and State level are contemplated and individual of the same village/Nyaya Panchayat/Vikas Khan/district is also included as last preference. From the scheme of the directions issued under Section 126 of 1950 Act, it is clear that first emphasis is on the Gaon Sabha concerned where tank or pond is situated and individual belonging to fishermen community and other similar communities are preferred for ponds and tanks up to two hectares and thereafter Cooperative Societies of fishermen. Giving preference to fishermen of the village concerned is with object to provide livelihood to the fishermen who are traditionally engaged in fishing and to other similar communities who are socially and economically weak. Preference to cooperative Societies of fishermen is also with the same object i.e., to provide means of livelihood to fishermen who form cooperative society.
26. From the above pronouncements made by the apex Court, it is well settled that restrictions imposed to give effect to the constitutional goals as laid down in Directive Principles of State Policy are restrictions with intention to give certain benefits to weaker section of the society which are reasonable restrictions which does not infringe any right of individual citizen under Article 19(1)(g). The rights under Article 19(1)(g) are not absolute rights. As noted above, every individual has also right of consideration but according to preference laid down in the Government orders issued under Section 126 of the 1950 Act. The preferences have been provided in the scheme of the Government with object of providing livelihood to fishermen and fishermen cooperative societies. The view of the Division Bench in Panchoo's case (supra) and other cases that unless fishing right is not settled by auction it will violate Article 19(1)(g) is not correct. The settlement of fishing right by auction will necessarily be in favour of a person giving highest bid. The big contractors and moneyed persons will steal a march over poor fishermen and other poor people of the village who are unable to organise themselves and the result would be that a sizeable section of fishermen and other communities will be deprived of their livelihood. To stop the settlement from going into the hands of big contractors and middlemen, the scheme was enforced by the State Government. The scheme has rational nexus with the object sought to be achieved and the persons for whose benefits the scheme has been framed definitely falls in a separate class having intelligible differentia. The settlement of fishing right in ponds and tanks by public auction cannot be held to serve the purpose and object nor the same can carry forward the goals as laid down in the Directive Principles of State Policy. Mere getting more revenue by public auction is not only object for letting out the fishing right. The objective as displayed from the directions of the State Government under Section 126 of 1950 Act is to provide livelihood to fishermen and other similar communities and also to give preference to the cooperative societies of such fishermen so that they may organise themselves and carry on their traditional vocation for the benefit of large part of weaker section of the society."
For determining as to whether the settlement in favour of respondent no. 5 on the basis of auction held on 25.6.2010 is valid or not, the scheme as provided by the Government Orders and the auction notice for settlement of fishing rights have to be looked into.
Copy of the Government Order dated 16.1.2006 has been filed as Annexure-2 to the writ petition, which refers to earlier Government Order dated 8.3.2000. Earlier Government Order dated 8.3.2000 laid down following in paragraph 4 with regard to settlement of Tal of category III and IV :
"4. tyk'k;ksa dh [kqyh uhykeh ds izFke pdz esa dsoy iathd`r eRL; thoh lgdkjh lfefr;ksa ds chp gh uhykeh dh izfdz;k viuk;h tk,xhA okafNr /kujkf'k u izkIr gksus dh n'kk esa f}rh; uhykeh esa eRL; thoh lgdkjh lfefr;ksa ds lkFk&lkFk Bsdsnkjksa dks Hkh lfEefyr fd;k tk,xk] Bsdk mPpre cksyh cksyus okys [email protected] dks fn;k tk,xk rFkk izFke o"kZ dh cksyh dks vk/kkj ekurs gq, vkxkeh o"kkssZZZ esa izfro"kZ 10 izfr'kr dh c Paragraph 4 of the Government Order dated 8.3.2000 provided that in first round of auction only registered cooperative societies of fishermen be permitted to participate and if desired amount is not received only then in second round along with registered cooperative societies contractors be permitted. The aforesaid Government Order was amended by the Government Order dated 16.1.2006, which provided as follows:
" mi;qZDr fo"k;d vius i= la[;k [email protected]'kk0 fnukad 28&10&2005 ds lanHkZ esa eq>s ;g dgus dk funs'k gqvk gS fd mDr lanfHkZr i= }kjk 'kklukns'k la[;k [email protected]&eRL;&2000&5(69)@81 fnukad 08 ekpZ] 2000 ds izLrj 4 ftlesa ;g O;oLFkk gS fd 'tyk'k;ksa dh [kqyh uhykeh ds izFke pdz esa dsoy iathd`r eRL; thoh lgdkjh lfefr;ksa ds chp gh uhykeh dh izfdz;k viuk;h tk;sxhA OkakfNr /kujkf'k u izkIr gksus dh n'kk essa f}rh; uhykeh esa eRL; thoh lgdkjh lfefr;ksa ds lkFk&lkFk Bsdsnkjksa dks Hkh lfEefyr fd;k tk;sxkA Bsdk mPpre cksyh cksyus okys [email protected] dks fn;k tk;sxk rFkk izFke o"kZ dh cksyh dks vk/kkj ekurs gq, vkxkeh o"kksZ esa izfro"kZ 10 izfr'kr dh c 1& uhykeh ds izFke pdz esa lacaf/kr tyk'k; ds HkkSxksfyd {ks= esa iMus okyh xWko [email protected] lHkkvksa rFkk lacaf/kr fodkl[k.M dh iathd`r eRL; thoh lgdkjh lfefr;kW ,oa Lo;a lgk;rk lewg gh dsoy Hkkx ysaxhA 2& uhykeh ds f}rh; pdz esa lacaf/kr mijksDr dzekad&1 ds lkFk&lkFk tyk'k; ds HkkSxksfyd {ks= esa iMus okyh rglhy ,oa tuin Lrj dh iathd`r eRL; thoh lgdkjh lfefr;Wk Hkh dsoy Hkkx ys ldsaxhA 3& r`rh; pdz esa uhykeh ls lacaf/kr mijksDr dzekad&1 o 2 ds lkFk&lkFk e.My Lrj dh iathd`r eRL; thoh lfefr;Wk Hkh Hkkx ys ldsaxh~ 4& prqFkZ pdz esa izns'k dh dksbZ Hkh iathd`r eRL; thoh lgdkjh lfefr Hkkx ys ldsxhA 5& tyk'k; dk vkjf{kr ewY; izkIr u gksus dh n'kk esa ikapos pdz esa eRL; thoh lgdkjh lfefr;ksa ds lkFk Bsdsnkjksa dks Hkh lfEefyr fd;k tk;sxkA "
From the Government Order dated 16.1.2006, it is clear that in first round of auction only registered Matsyajivi cooperative societies falling in the geographical area of the Tal shall be permitted to participate. In the second round along with societies mentioned in paragraph 1, the registered Matsyajivi societies of Tahsil and district level were permitted participation. In the third round, apart from societies mentioned in paragraphs 1 and 2, registered Matsyajivi societies of divisional level and in fourth round along with the societies mentioned in paragraphs 1,2,3, the registered Matsyajivi societies of the State were permitted participation. In fifth round, in case the reserved price was not received, along with registered Matsyajivi societies, contractors were permitted participation. From the pleadings of the parties, it is clear that the respondents in the auction held on 25.6.2000 proceeded directly to fifth round of auction permitting participation of contractors along with the petitioner and other societies, which is apparent from the bid proceedings filed as Annexure-C.A.-3 to the counter affidavit, filed by Sri Anil Kumar Gupta, Manager, U.P. Fisheries Cooperative Federation Ltd. Lucknow. The bidsheet indicates that reserved price of the pond was Rs. 4,10,000/- and apart from the petitioner, another society namely; Shram Shramik Matsya Jivi Sahakari Samiti Ltd. and two contractors i.e. respondent no. 5 and Jaisram were permitted to participate in the auction. The reason given in the bid sheet for not permitting auction between the two societies, was that there was no provision for auction between the two societies and since contractors had also deposited the earnest money, according to the provisions of 5th round of auction, auction was conducted amongst the two societies and contractors. Following has been mentioned in the bid proceedings dated 25.6.2010, which was conducted by three members committee.
"'kklukns'kksa ds izkfo/kkuksa ds vuqlkj l:vkrky Js.kh&3 tyk'k; dh uhykeh dk;Zokgh esa rglhy Lrj o xzke lHkk Lrj dh nks lfefr;ksa }kjk uhykeh esa Hkkx fy;k x;kA ftlesa nks lfefr;ksa ds chp esa uhykeh dk izkfo/kku u gksus ds dkj.k mDr tyk'k; dh uhykeh gsrq nks futh eNyh Bsdsnkjksa }kjk c;kus dh /kujkf'k tek dh x;h FkhA uhykeh izfdz;k ikapos pdz ds izkfo/kkuksa ds vuqlkj nksuks lfefr o Bsdsnkjksa ds chp esa cksyh djk;h x;h ftlesa Jh ij'kqjke s/o Lo0 Jh eqUuh jke fuoklh xzke ewlkoj iks0 [ktwjxksok] tuin xksj[kiqj dh loksZPp cksyh :i;s 4]51][email protected]& ¼:i;s pkj yk[k ,D;kou gtkj ek=½ vk;hA vr% uhykeh lfefr us Jh ij'kqjke s/o Lo0 eqUuh jke] tuin xksj[kiqj dh loksZPp cksyh :i;s 4]51]000@& ¼:i;s pkj yk[k ,D;kou gtkj ek=½ dks Lohd`fr gsrq laLrqfr iznku dh tkrh gSA"
The auction committee thus permitted participation of contractors along with two societies. The auction committee directly jumped to 5th round of auction permitting the contractors along with two societies escaping the first four rounds. According to the provisions of first round of auction, the petitioner society and another society falling in geographical area of the Tal , which had deposited the earnest money ie. the petitioner and another society namely; Shram Shramik were only entitled to participate in the bid. There was no occasion permitting contractors to submit their bids along with societies in the very first round. The auction Committee proceeded to carry on its proceedings clearly in breach of the Government Order dated 16.1.2006, defeating the very object and purpose of the said Government Order. In first round of auction, societies situated in the geographical area of the concerned ponds have been given right to participate in the auction. The societies of registered fishermen of the geographical area consists of persons of the area of Tal itself and providing preferential right to such societies is with the object to provide livelihood to large number of members of the societies, who are engaged in catching fish to fulfil the object as laid down in part IV of the Constitution of India i.e. Directive Principles of the State Policy and permitting the contractor to bid with the societies in the very first round is defeating the entire purpose and object. The reason given in the bid sheet that there is no provision of auction between the two societies, is also wholly erroneous. The bid between the two societies is fully permissible and there is no prohibition any where in the Government Order dated 16.1.2006 in permitting two societies to compete the bid. It is useful to quote paragraph 29 of the Full Bench judgment in the case of Ram Kumar (supra), which has clearly laid down that in the event there are more than one person in one particular category of preference, the Sub Divisional Officer is not prohibited to award the said fishing right by inviting bids by tender or auction. paragraph 29 is quoted below:
"29. 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 Sub Divisional 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 Sub Divisional 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 Sub Divisional Officer is not prohibited to award the said fishing right by inviting bids by tender or auction."
Before a Division Bench of this Court, the Government Order dated 16.1.2006 came for consideration in writ petition No. 55460 of 2009 Nishad Jal Mazdoor Sahkari Matsya Jeevi Samiti Ltd. & Anr. Vs. State of U.P. And others, decided on 21.7.2010. In the aforesaid case, auction proceedings were held on 10.9.2009 for settlement of a big pond namely; Ramgarh Tal. The settlement of the Tal was also to be held in accordance with the said Government Order. Auction notice was issued on same terms and conditions. In the first round, two registered co-operative societies of fishermen i.e. respondents no. 4 and 5 were permitted to participate in the auction. After opening tenders, it was decided to invite comparative bid between the respondents no. 4 and 5 and highest bid given by the respondent no. 5 was accepted. The contract was granted in favour of respondent no. 5. Societies of respondents no. 4 and 5 belonged to geographical area of the concerned Tal. The petitioner, which was also a registered society of the fishermen, challenged the aforesaid grant of contract. The petitioner society although was a registered society of fishermen but did not belong to the geographical area of the pond hence, it was not held entitled to participate in the first round of auction. The petitioner contended that petitioner society was also entitled for participation in the auction since it was a registered cooperative society of fishermen and there could not have been any restriction regarding participation of the society belonging to geographical limit of the pond in the first round. The Division Bench repelled the contention of the petitioner and held that the petitioner society, which did not belong to the geographical area of the Tal, was not entitled to participate in the first round of the auction. It is useful to quote the Division Bench judgment repelling the contention of the petitioner in the aforesaid case:
"The first submission of the learned counsel for the petitioner is that Ram Garh Tal being category 1 and category 2 tal the procedure as prescribed in the Government Order dated 8.3.2000 was to be followed and all the registered societies were entitled for participation and the petitioner was also entitled for participation in the first round. He submits that in Government Order dated 8.3.2000 there is no restriction. State in its counter affidavit has clearly stated that both the Government Orders dated 8.3.2000 and 16.1.2006 are not applicable with regard to ponds which are maintained by local bodies or the Nagar Nigam. The subject to the Government Order dated 8.3.2000 is as follows:-
"fo"k;- eRL; foHkkx ,oa eRL; fodkl fuxe ds v/khu vkus okys fofHkUUk Js.kh ds tyk'k;ksa dh izca/k O;oLFkk gsrq uhfr fu/kkZj.kA Subject of the Government Order dated 16.1.2006. is also to the same effect ,i.e., determination regarding the management of ponds of category no. 3 and 4 maintained by Fisheries Department. A perusal of the aforesaid Government Orders clearly indicates that the aforesaid Government Orders were issued with regard to the settlement of ponds which are managed by Fisheries Department or Matsya Vikas Nigam. The said Government Orders are not applicable with regard to ponds which are to be settled by the Development Authority. However, in the counter affidavit as well as in the information which has been given under the Right to Information Act which has been filed by the petitioner himself, it has been stated that the procedure in the Government Order dated 16.1.2006 has been adopted by the Vice-chairman and the villages which are falling under the Ram Garh Pariyojana and the registered societies of those area were eligible to participate in the first round, the copy of which has been filed as Annexure No. 8 to the writ petition which clearly contemplates that in the auction which was to take place the local registered societies within the area of Development Authority were entitled to participate and in event substantial amount is not received in the second round the societies of Tehsil and District are entitled to participate. The conditions of the auction mentioned in Annexure No. 9 are in line of the said notice. The pond being in the ownership of the Development Authority, it was open to the Development authority to lay down the terms and conditions for auction. The petitioner as well as the respondent without any demur has submitted their tenders and participated in the proceedings. The petitioner has also submitted his tender which fact is clearly mentioned in the original proceedings dated 10th September 2009 which has been produced by the learned counsel for the Development Authority for perusal of the Court. The societies, i.e., respondent nos. 4 and 5, which were within area of the Ram Garh Tal, were permitted participation and there being two societies, the further bid was taken and highest bid of an amount of Rs. 78,35,000/- was accepted of respondent no. 5."
From the above, it is clear that the auction proceeding held on 25.6.2010, permitting the participation of respondent no. 5, who was a contractor in the first round of auction along with registered cooperative societies, was wholly illegal and contrary to the Government Orders and cannot be sustained.
Learned Additional Advocate General as well as learned counsel appearing for the respondent no. 5 have submitted that the petitioner being defaulter of his instalments of the contract granted to him in the year 1983-84, was not eligible to participate and was wrongly permitted participation hence, the petitioner cannot claim entitlement of the contract and the writ petition is liable to be dismissed on this ground alone.
In the present case, there is no dispute that the petitioner was permitted participation in the auction held on 25.6.2010 as a registered cooperative society of fishermen belonging to geographical area of Tal. The respondents permitted participation of the petitioner society without any objection along with contractors. Thus, the auction proceedings as held on 25.6.2010 cannot be said to be justified on the submission that subsequently it transpired that the petitioner was in default of the instalments for the year 1983-84. It has come on the record that recovery proceedings of instalments which were initiated against the petitioner of Rs. 1,21,190/- were recommended to be waived by the Deputy Director vide his letter issued in the year 1996 and due to the said letter, the recovery was not proceeded with against the petitioner hence, at the time when the petitioner was permitted participation, the recommendation of the Deputy Director for waiving of the amount was already made. It is further relevant to note that the respondents themselves permitted the petitioner for participation in the auction, which had completed all the formalities as required by the Government Orders. The respondents have under the Right to Information Act provided answers to two questions which were asked by the petitioner dated 1.9.2010; one of which was as to whether the societies which were permitted participation had completed all the procedures of the Government Order. The answer was given that the two societies that participated in the auction, had completed all the procedures in accordance with the Government Order, copy of which has been filed as Annexure-6 to the writ petition. The petitioner, which was permitted participation in the auction held on 25.6.2010, has sufficient locus to challenge the illegal proceedings conducted on 25.6.2010 under which a contractor was permitted participation and contract has been awarded in his favour. The petitioner in the first writ petition has made a prayer for setting aside the auction and direction for fresh auction. The petitioner society, which is a registered society belonging to geographical area of the tal has every right to claim for holding fresh auction in the event, it is held that proceedings held on 25.6.2010 were illegal. Thus, the submission of learned Counsel for the respondents that petitioner society, which was a defaulter, cannot challenge the auction proceedings dated 25.6.2010 which was held in violation of the Government Order dated 16.1.2006, cannot be accepted.
The submission which has been next pressed by learned Counsel for the respondent no. 5 is that contract has to be granted to a person offering highest revenue, which is in the interest of the State, in support of which, he relied on a judgment of apex Court in Shri Sachidanand Pandey and another Vs. The State of West Bengal & others (supra). As noticed above, the Full Bench of this Court in Ram Kumar (supra) has specifically laid down that settlement of of pond/Tal is to be made in accordance with the procedure prescribed in the Government Order and it cannot be on the basis of persons offering the highest amount. Contractors have not been permitted to participate in the auction with the object and purpose already noticed in the Full Bench judgment in the case of Ram Kumar (supra). Thus, the submissions of learned Counsel for the respondents that since the respondent no. 5 has offered highest bid, the contract was rightly awarded in his favour, cannot be accepted.
In view of the foregoing discussions, thus, it is held that the auction proceedings dated 25.6.2010 are wholly illegal and cannot be sustained. An affidavit has been filed on behalf of respondent no. 5, stating that he was granted lease for a period of five years from 1.7.2010 to 30.6.2015 and has deposited the instalments for the year 2011-12. The respondent no. 5 has stated that he has dropped fish seed on different dates between 1.7.2011 to 30.102011 and fish seeds are likely to develop into prescribed size of one and half K.G. in about six months. It has been stated that respondent no. 5 has invested huge money in the year 2011-12.
Now comes to the second writ petition filed by the petitioner. From the facts as have been brought on record, it is clear that the petitioner committed default in payment of the instalments with regard to the contract granted in the year 1983-84 and recovery proceedings were initiated. In the year 1996, the Deputy Director recommended for waiving of the amount due, which request has been turned down by the Director of Fisheries only on 12.1.2011. The amount being due against the petitioner and the request of waiving of the amount having been turned down, we see no ground to quash the order dated 14.10.2011. Thus, the petitioner is not entitled for any relief in the second writ petition.
In view of the foregoing discussions, the auction proceedings held on 25.6.2010 and consequential grant of contract in favour of respondent no. 5 for a period of five years, is set aside and the respondents are directed to hold fresh auction in accordance with law. However, in view of the fact that respondent no. 5 has invested huge amount and has already deposited the instalments for the year 2011-12, we are of the view that ends of justice would be served in permitting the respondent no. 5 to take out fishes from the Tal up to 30.6.2012. The respondents may initiate fresh auction proceedings for settlement of pond according to the Government Order dated 16.1.2006 and other relevant Government Orders, within a period of two months from the date a copy of this order is produced. The petitioner shall be permitted to participate in the auction proceedings only when he clears the default and fulfils other eligibility. The first writ petition is allowed to the extent indicated as above. The second writ petition is dismissed.
Order Date :- 14.2.2012 LA/-