Court No. - 38
Case :- WRIT - C No. - 19093 of 2021 Petitioner :- Dheeraj Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arvind Kumar Srivastava,Bhaju Ram Pprasad Sharma Counsel for Respondent :- C.S.C.,Sher Bahadur Singh
Hon'ble Rajeev Misra,J.
Heard Mr. Arvind Kumar Srivastava, learned counsel for petitioner, learned Standing Counsel representing respondents 1, 2, 3, 4 and Mr. S.B. Singh, learned counsel representing respondent 5 Land Management Committee.
Present writ petition has been filed challenging order dated 23.11.2019 passed by respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, whereby report dated 23.11.2019 submitted by Revenue Inspector has been approved by respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur. As a consequence of above, auction regarding grant of fishery lease in respect of the pond situate in Survey Plot No. 207 area 1.0400 hectares in village Natthapur, Pargana and Tehsil Powayan, District Shahjahanpur, has not been approved by respondent 3.
Present writ petition came up for admission on 10.08.2021 and this Court passed following order:-
"It is the contention of learned counsel for the petitioner that the fishery lease of the petitioner has been cancelled on the basis of a comment/report of the Tehsildar. It has been contended that this report of the Tehsildar was accepted by the Sub-Divisional Magistrate without giving any opportunity of hearing to the petitioner.
Learned Standing Counsel to take instructions and inform the Court, on the next date, as to whether the pond in question has been further allotted to anybody-else.
Place this petition on 2.9.2021 as fresh."
Pursuant to above order dated 10.08.2021, learned Standing Counsel has received instructions. Same have been placed before Court and are taken on record.
Record shows that a pond is situated over plot No. 207 area 1.0400 in village Natthapur, Pargana and Tehsil Powayan, District Shahjahanpur. Aforesaid pond was notified for auction regarding grant of fishery lease. Accordingly, a notice was published in the news paper on 19.10.2019. Pursuant to aforesaid notice, auction was held on 14.11.2019. Petitioner participated in the auction. Bid offered by petitioner was the highest. Same was accepted. Accordingly, petitioner was permitted to deposit the lease rent. Petitioner duly deposited the lease rent i.e. Rs. 5200/- on 14.11.2019. Subsequently, Revenue Inspector submitted a report dated 15.11.2019 stating therein that auction held on 14.11.2019 may not be approved, as beautification works have already been undertaken. Pond in dispute is near Burning ghat. Villagers have objection regarding grant of fishery lease. Respondent 3 Sub Divisional Magistrate, Powayan, District Shahjahanpur, concurred with the report submitted by Revenue Inspector and accordingly, approved the same.
Learned counsel for petitioner contends that pond in dispute was notified for auction. Auction took place on 14.11.2019. Petitioner was the highest bidder and he has deposited the entire amount of lease rent i.e. Rs. 5200/-. However, simply on the basis of report forwarded by Revenue Inspector, the auction so held has not been approved.
Learned counsel for petitioner submits that respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, has proceeded to approve the report submitted by Revenue Inspector by means of order dated 23.11.2019. However, perusal of order dated 23.11.2019, which is contained in Annexure-2 to the writ petition will go to show that same does not contain any reason for approving the report submitted by Revenue Inspector. No reason has been assigned by respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, as to why the report submitted by Revenue Inspector recommending cancellation of auction is being approved. On the aforesaid premise, it is thus urged that order impugned is not only illegal and unjust but also arbitrary. It is next contended that impugned order has been passed by respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, in complete violation of the principles of natural justice. No notice or opportunity of hearing was given to petitioner by respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, before passing the impugned order. Addmittedly, petitioner was the most affected person and therefore no decision could have been taken against him without affording notice and opportunity of hearing to petitioner. Order impugned has serious civil consequences, as petitioner has a legitimate expectation regarding execution of fishery lease in his favour in respect of the pond in dispute as petitioner has deposited the entire amount of lease rent. It is lastly submitted that reasons assigned by Revenue Inspector in his report dated 15.11.2019 for not approving the auction held on 14.11.2019 are not referable to any of the provisions of U.P. Revenue Code 2006 or the Rules framed thereunder. On the aforesaid premise, learned counsel for petitioner submits that impugned order dated 23.11.2019 cannot be sustained and therefore, same is liable to be quashed by this Court.
Per contra, the learned Standing Counsel and Mr. S.B. Singh, learned counsel representing respondent 5 have tried to support the impugned order.They jointly submit that report submitted by Revenue Inspector, whereby recommendation has been made not to approve the auction regarding grant of fishery lease in respect of the pond in dispute is perfectly just and legal. Revenue Inspector has assigned valid and cogent reasons for not approving the auction held on 14.11.2019. Learned Standing Counsel has then invited attention of Court to the instructions received by him and on basis thereof he submits that respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur has rightly concurred with the report submitted by Revenue Inspector. Learned Standing Counsel lastly submits that since there is no concluded contract, petitioner has no indefeasible right. It is thus urged that no indulgence be granted by this Court in favour of petitioner.
Having heard learned counsel for petitioner, learned Standing Counsel, Mr. S.B. Singh, learned counsel representing respondent 5 and upon perusal of material on record, this Court finds that impugned order dated 23.11.2919 passed by respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, whereby report submitted by Revenue Inspector has been approved is wholly cryptic. Same does not contain any reason as to why report submitted by Revenue Inspector is being accepted. Aforesaid assumes importance in view of the fact that pond in dispute was duly notified for auction and prospective bidders duly participated in the same. After the auction was held, petitioner was declared the highest bidder and he deposited the entire amount of Rs. 5200/- towards lease rent. As such, petitioner has legitimate expectation regarding approval of auction so held and consequential execution of lease deed. It is well settled that when reason is not mentioned in the order, then such an order cannot be sustained. For the validity of an order is to be judged on the basis of reasons contained in the order itself. Same cannot be supplemented by counter affidavit.
Furthermore, order impugned has been passed without giving any notice or opportunity of hearing to petitioner, even when petitioner was the most affected person. Failure to give notice and opportunity of hearing to petitioner has seriously prejudiced the petitioner, inasmuch as petitioner has been deprived of an opportunity to plead his case before Respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, prior to the passing of impugned order.
Apart from above, the Court finds that the Revenue Inspector who submitted the report dated 15.11.2019 has not referred to any provisions of U.P. Revenue Code 2006 or the Rules framed thereunder pointing out the illegality/irregularity in the notice regarding auction of the pond in dispute for grant of fishery lease or the auction itself. Reasons mentioned in the report of the Revenue Inspector dated 15.11.2019 could have been considered before the pond in dispute was notified for auction. Moreover, loss of income has also not been adverted to in the report of Revenue Inspector. Respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, while passing the impugned order has completely ignored aforesaid aspects which have vitiated the same.
For the facts and reasons noted above, present writ petition succeeds and is liable to be allowed. Accordingly, impugned order dated 23.11.2019 passed by respondent no. 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, contained in Annexure-2 to the writ petition, is, hereby, quashed.
Respondent 3 Sub Divisional Magistrate, Tehsil Powayan, District Shahjahanpur, shall pass afresh order within a period of one month from the date of production of a certified/computer generated copy of this order which shall be filed by petitioner before him by means of a Notary Affidavit.
Writ petition is, accordingly, allowed. Cost made easy.
Order Date :- 25.10.2021 HSM