renewal of lease Heard Sri S.P.Singh, learned counsel for the petitioner, learned standing counsel for the State-respondents, Sri D.D.Chauhan, learned counsel for the Gaon Sabha and Sri K.C.Pandey, learned counsel appearing as intervener.
Through this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 20.6.2014 passed by the Sub Divisional Officer, Dhanghata District Sant Kabir Nagar rejecting the representation of the petitioner for approval of the proposal for execution of fishery right in favor of the petitioner over a pond, situated in village Deeppur Tehsil Dhanghata, district Sant Kabir Nagar, measuring about 27.944 hectares. It is contended that pursuant to the advertisement made in daily newspaper 'Amar Ujala' the petitioner participated in the auction on 4.12.2013 for settlement of lease and offered Rs. 30 lacks for a period of 10 years and also deposited 1/10th amount as required by the Tehsil authorities, receipt of which has been brought on record as Annexure 4 to the writ petition but the lease was not executed. Aggrieved by that the petitioner filed Writ C No. 19931 of 2014 (Gramin Machhua Samuday Samiti vs. State of U.P. and others) which has been disposed of vide order dated 14.4.2014 with the direction the Sub Divisional Officer to take a final decision within a period of one months from the date of production of a certified copy of the order of this Court. It is thereafter the decision was taken by the authorities on 20.6.2014.
While entertainng the writ petition this Court on 24.7.2014 has passed the following order:
"Heard Sri S.Pratap Singh, learned counsel for the petitioner, learned standing counsel for the State respondent and learned counsel for the Gaon Sabha.
The petitioner is aggrieved by the order dated 20.6.2014 passed by the Sub Divisional Officer, Dhanghata, district Sant Kabir Nagar on the representation of the petitioner pursuant to the order of this Court dated 16.4.2014 passed in Writ C No. 19931 of 2014 (Gramin Machhua Samuday Samiti Deeppur Sant Kabir Nagar vs. State of U.P. and others). It appears that for settlement of fishery lease over a pond, situated in village Deeppur Tehsil Dhanghata, district Sant Kabir Nagar, measuring about 27.944 hectares. The petitioner participated in the auction being a registered cooperative society of the Gaon Sabha and offered Rs. 30 lacks for a period of 10 years and also deposited 1/10th amount as required by the State authorities but the lease was not executed. Aggrieved by that the petitioner filed Writ C No. 19931 of 2014 in which on 14.4.2014 the Sub Divisional Officer was directed to take a final decision within a period of one months from the date of production of a certified copy of the order of this Court. Thereafter the petitioner filed a representation which has been rejected on the ground that other societies, i.e. block level, district level and State level have not participated in the auction.
Learned counsel for the petitioner contends that in view of the Government Order dated 17.10.1995 which has been noticed by the Sub Divisional Officer requires that Gramin Machhua cooperative society of the village concerned shall be preferred for settlement of the lease and it is not in dispute that the petitioner is the society of the village, therefore, the impugned order could not be passed by the Sub Divisional Officer. He also contends that more than one years has passed the the Sub Divisional Officer was sitting tight over matter by not executing the lease hence the petitioner has been compelled to approach this Court for issuing direction for execution of the lease and it is thereafter the impugned order has been passed. In his further submissions more than a year has passed and due to non execution of lease the State has been put to loss of more than Rs. 3 lacs.
Considering the submission of the learned counsel for the petitioner, learned standing counsel and the learned counsel for the Gaon Sabha are granted two weeks and no more time to file counter affidavit. Rejoinder affidavit, if any, be filed within one week thereafter. In addition to the counter affidavit, the Sub Divisional Officer is directed to file his personal affidavit explaining the reason for not executing the lease or refusing the same earlier. Prima facie it appears due to inaction of the respondents State has been put to suffer a huge loss.
Put up this case in the additional cause list on 14th August, 2014 showing the name of Sri D.D.Chauhan, learned counsel for the respondent. Till 14th August, 2014 no auction shall take place. In case the same has taken place that will not be given effect to."
Thereafter the petitioner filed a representation which has been rejected on the ground that other societies, i.e. block level, district level and State level have not participated in the auction.
Learned counsel for the petitioner contends that in view of the Government Order dated 17.10.1995 which has been noticed by the Sub Divisional Officer requires that Gramin Machhua cooperative society of the village concerned shall be preferred for settlement of the lease and it is not in dispute that the petitioner is the society of the village, therefore, the impugned order could not be passed by the Sub Divisional Officer. He also contends that more than one years has passed the the Sub Divisional Officer was sitting tight over matter by not executing the lease hence the petitioner has been compelled to approach this Court for issuing direction for execution of the lease and it is thereafter the impugned order has been passed. In his further submissions more than a year has passed and due to non execution of lease the State has been put to loss of more than Rs. 3 lacs.
Pursuant thereto a counter affidavit has been filed by the Sub Divisional officer. In the counter affidavit it has been stated that the petitioner's Society is not approved by the Fishery Department. However, in order of preference to Government Order dated 17.10.1995 on which basis lease has to be settled the petitioner falls under Category 2(A). It is stated that as the persons falling under Category I was available, therefore, the bid of the petitioner has illegally been accepted and the petitioner has been asked to deposit Rs. 3 lakhs. The main ground of rejecting the petitioners' application is that only preferential category be given the preference under Government Order dated 17.10.1995. As the petitioner will fall under Category 2(A) whereas the persons of the Category I at serial No. 1(D) in the preference order was available. Taking note of that approval has not been approved and an order has been passed to hold a fresh auction.
While assailing this order Sri Singh, learned counsel for the petitioner contends that the Sub Divisional Officer has erred in placing reliance of the ex parte report of the Fishery Department wherein it is stated that the petitioners' society is not recognised. In his submission the report if vague and before submitting the report no opportunity was offered to the petitioner. It is also contended that all the members of the petitioners' society are of Macchua by caste, therefore, for all practical purposes it is a society of Macchua community and it will not fall under Category 2(A). It is also submitted that with respect to the pond in question lease has been executed on a very megre amount of Rs. 14929/- annually in favour of Matsya Jivi Sahkari Samiti of which Sri Komal happens to be the Manager whereas for the same area the petitioner has offered Rs. 30 lakhs but he has been ignored.
On being confronted as to whether petitioners' society is registered under the Cooperative Societies Act, 1965, learned counsel for the petitioner has invited attention of the Court towards the registration certificated which has been brought on record as Annexure 2 to the writ petition. From the perusal of the same it transpires that the society has been registered under Societies Registration Act, 1860. Learned standing counsel appearing for the State submits that since the petitioners society is not registered under the Cooperative Societies Act, 1965 as required under Government Order dated 17.10.1995. Even if it is a society of the persons belonging to the Macchua community it will not fall under Category I or Category B as the petitioners' society is not registered under Cooperative Societies Act, 1965. Sri Singh, learned counsel for the petitioner submits that in case society is registered under Societies Registration Act, 1860 and under the Cooperative Societies Act, 1965 will not be a fatal.
After hearing the learned counsel for the parties and perusing the record the basic question would be as to whether the petitioner's society which is registered under Societies Registration Act, 1860 was eligible to participate in the auction proceeding or not. For considering the question it would be appropriate to look into the conditions prescribed in the Government Order dated 17.10.1995 which stipulates that society means a cooperative society registered under Cooperative Societies Act, 1965. It is a settled principle of law that once a statute is meant for a particular manner that has to be done in the same manner. Here since the Government Order dated 17.10.1995 which has got a statutory order issued under section 126(1) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 read with Rule 115-A(3) of the U.P. Zamindari Abolition and Land Reforms Rules, 1952, therefore it has to be read in the form in which it is written. Since the petitioners' society is not registered under Cooperative Societies Act, 1965, therefore, I do not find any error in the impugned order passed by the Sub Divisional Officer. Since the writ petition has failed on the first ground I dont find it appropriate to deal with the other points raised by the learned counsel for the petitioner.
Submission of the learned counsel for the petitioner is that in paragraph no. 5 of the rejoinder affidavit it is stated that on 16.1.2010 for a period of ten years fishery lease has been executed in favour of Sri Surendra Kumar, Secretary Matsya Jivi Sahkari Samiti Ltd. Dhanghata for an amount of Rs. 14929/- only. He has brought on record the information furnished under the Right to Information Act that is resolution of the gaon Sabha. From the perusal of which it transpires that the lease for a period of ten years was proposed to be executed in favour of Sri Surendra Kumar over ponds of the area on question measuring about 14.929 hectares for a megre amount of Rs. 14,929/- only. Contention of the petitioner is that the petitioner has offered much higher, i.e. Rs. 30 lakhs for a period of ten years.
This Court in Shyam Kunwar vs. State of Uttar Pradesh(2005(2) AWC 1525 has held that Deputy Collectors shall make efforts to grant fisheries lease for Rs. 20,000/- per hectare per year unless there are special reasons for granting the same for lesser amount but while doing so reason must be recorded. Taking note of that it is directed that so far as the ponds in question are concerned settlement of lease shall be made looking into the law laid down by this Court in Shyam KunwarShyam Kunwar (supra) and in case he finds that the lease has been executed on the lessor amount he shall initiate proceeding for cancellation of the lease after issuing notice to the other parties. (supra).So far as lease granted in favour of Matsya Jivi Sahkari Samiti Ltd. Dhanghata for an amount of Rs. 14,929/- is concerned the District Magistrate, Sant Kabir Nagar is directed to reexamine the mater in view of the law laid down in With the aforesaid observation, the writ petition is disposed. However, it will be open to the petitioner to register his society under Cooperative Societies Act, 1965 and in case his society is registered under Cooperative Societies Act, 1965 it may also participate in the proceeding. The money deposited by the petitioner be returned along with 6% interest.
Order Date :- 9.9.2014 samz