JUDGMENT Krishna Murari, J.
1. By means of this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for quashing of lease of fishing rights in plot No. 52 area 1.896 hectare situate in village Tendua Kalan District Mirzapur executed in favour of respondent No. 5. The petitioner has also prayed for a writ of mandamus commanding the respondent authorities not to make any allotment of the said pond to any person for any purpose other than irrigation.
2. We have heard Miss Suman Jaiswal, learned counsel for the petitioner and Sri Y.D. Mohan, holding brief of Sri V.K. Singh counsel for the respondent and the learned Standing Counsel.
3. The fishery lease granted to respondent No. 5 has been challenged on the ground that respondent No. 2, Sub Divisional Magistrate has no power or jurisdiction to grant any lease, and under the provisions of U.P.Z.A & L.R. Act the said power is vested only in the Land Management Committee.
4. It has further been contended that lease has been executed by the respondent No. 2 without inviting any lender or following any procedure. The pond in dispute has always been used for irrigation purpose and there being no other source of irrigation the pond could hot have been allotted for fishing. It has also been urged that Gaon Sabha passed an unanimous resolution dated 30.8.99 to the effect that pond in question may be kept reserved only for irrigation purposes and may not be allotted to any person.
5. A counter affidavit has been filed on behalf of the respondent No. 5 denying the aforesaid allegations. It has been stated in the counter affidavit that date of auction was well advertised and a large number of persons participated. The respondent was the highest bidder and thus lease was executed in her favour. The fact that pond in question is the only source of irrigation has also been denied in the counter affidavit. It has been stated in paragraph No. 4 of the counter affidavit that a large number of members of Gaon Panchayat filed affidavits before Sub Divisional Officer, stating therein that there exists no resolution dated 30.8.99, and there is no objection to the settlement of lease rights for fishing in favour of respondent No. 5.
6. Lease of fishing rights in any pond and tank vested in Gaon Sabha is regulated by the Provisions of U.P.Z.A.& L.R. Act (for short the Act) and rules framed there under and various government orders issued on the subject and contained in Paragraph 60 of U.P. Gaon Sabha and Bhumi Prabandhak Manual (for short the manual). The Manual is a compilation of various Orders and Directions issued by the State government from time to time under the provisions of the Act and the Rules.
7. Section 126 (1) of the Act empowers the State Government to issue such order and direction to the Land Management Committee as may appear necessary for the purposes of the Act. Similarly, under Rule 115 (A), the State Government can issue directions to Land Management Committee relating to its function as enumerated under Section 28-B of U.P. Panchayat Raj Act which includes within its ambit the development of fisheries, ponds and tanks. Explanation 1 to Rule 115-B of the Rules provides that directions contained in the Manual shall be deemed to be directions issued in accordance with Rule 115-A.
8. Thus, in view of Section 126 of the Act read with Rule 115-A and 115-B of the Rules, orders and directions issued by the State Government contained in the Manual are statutory in nature and have the force of law. Our view finds support from another Division Bench decision of this Court in the ease of Gram panchayat Kanta Guljarpur Unnao v. Collector Unnao and Ors. reported in 1997 (3) AWC 1965 wherein, it has been held that the provisions of paragraph 60 of the Gaon Sabha Manual have statutory force.
9. Complete procedure for grant of fishing lease is contained in paragraph 60 (2)(kha) of the Manual as amended from time to time by various government orders and directions issued on the subject it provides that lease of fishery rights as far as possible, may be settled in camps organised for the purpose at Tehsil level by Sub Divisional Officer in consultation with the Land Management Committee. However, in cases, where either the Land Management Committee is unable to settle fishery lease or the Sub Divisional Officer considers it fit to do so he can grant lease even without any resolution of the Land Management Committee. It is further provided that any customary rights of washing cloths, irrigation, excavation of earth etc from the pond or tank shall continue as usual and settlement of fishing rights shall not in any manner affect such customary rights. It also provides that lease deed shall contain a condition that lessee shall not interfere in any such customary rights.
10. It is thus clear that Paragraph 60 (2)(kha) of the Manual empowers the Sub Divisional Officer to grant fishery lease even without consulting the Land Management committee. In view of the aforesaid legal provisions the first contention of the learned Counsel for the petitioner, that fishery lease can only be granted by the Land Management Committee and respondent No. 2 has not jurisdiction, is liable to be rejected.
11. The next contention advanced on behalf of the petitioner pointing out various defects in the procedure adopted by respondent No. 2 in the process of granting lease to the petitioner are factual in nature. No material has been brought on record of the writ petition to substantiate the allegations. The resolution of gaon sabha dated 30.8.99 for keeping the pond reserved for irrigation purposes have not only been denied by the respondent No. 5 in the counter affidavit but affidavit of members of Gram panchayat have also been filed along with counter affidavit stating time the said resolution dated 30.9.99 is farzi and manufactured and as a matter of fact, no such resolution was ever passed. All these are disputed questions of fact which cannot be gone into by us while exercising the powers conferred by Article 226 of the Constitution.
12. The last submission advanced by the learned counsel or the petitioner, that since pond in question is the only source of irrigation and has always been used for the said purpose as such it cannot be leased out for fishery, is also devoid of merits and liable to be rejected. Paragraph 60 (2) (kha) of the manual protects the customary rights of washing cloths, excavation of earth and irrigation etc. from the pond and tank leased out for fishing rights. Thus lease in favour of respondent No. 3, being subject to and without prejudice to the customary rights of irrigation from the pond in dispute, is not liable to be cancelled, on the ground that it affects the right of irrigation.
13. In view of the aforesaid discussion the reliefs prayed for in the writ petition cannot be granted. The writ petition tails and is accordingly, dismissed.
14. However, in the facts and circumstances, there shall be no order as to cost.