Ateequrrahman vs State Of U.P. & Others
2011 Latest Caselaw 3301 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 06
 

 
CIVIL MISC. WRIT PETITION NO. 36255 OF 2010.
 
Ateequrrahman Vs. State of U.P. and others. 
 

 
Hon'ble A.P. Sahi, J. 

Heard Sri Santosh Kumar Srivastava, learned counsel for the petitioner, Sri M.N. Singh, learned counsel for the respondent nos. 6 to 10, Sri Anuj Kumar, learned counsel for the respondent no. 5 and the learned Standing Counsel for the respondent nos. 1 to 4.

Affidavits have been exchanged between the parties, and therefore, the writ petition is being finally disposed of with their consent.

The dispute relates to the settlement of a fisheries pond which is an area admittedly less than 2 hectares. The petitioner submits that the pond was settled in his favour after wide publication and after a decision having been taken by the Land Management Committee on 27th July, 2007. The petitioner's case is that several villagers participated but the respondent nos. 6 to 10 did neither apply nor did they participate in the same. The petitioner having been found the highest bidder was granted the fisheries lease for 10 years, which was admittedly approved by the Competent Authority and the lease deed was also registered pursuant to the said auction, which fact is not disputed.

The respondent nos. 6 to 10 appear to have approached the Sub-Divisional Magistrate with a contention that they were entitled to have the settlement in their favour. It is not in dispute that the respondent nos. 6 and 7 belong to Dhimar community, which falls within the preferential category as provided for under the Government Order dated 17th October, 1995, that is entitled for allotment by way of preference under the said Government Order. They, however, did not participate in the auction proceedings in which the lease had been settled in favour of the petitioner. Their contention is that, as a matter of fact, they had no knowledge about the said proceedings, and therefore, they approached the Sub-Divisional Magistrate with a request for grant of allotment of the said pond.

From the records it transpires that when the respondents started interfering in the possession of the petitioner, he filed a civil suit. The said suit is still pending. A temporary injunction was also granted to the petitioner and an affidavit was also filed by the Sub-Divisional Magistrate in the said suit.

The respondent nos. 6 to 10 contested the matter for cancellation of the petitioner's lease and the Additional District Magistrate, vide order dated 16th January, 2008, cancelled the lease of the petitioner and directed the Sub-Divisional Magistrate to resettle the said pond in accordance with the Government Order.

The petitioner filed a revision, which was pending consideration. The Sub-Divisional Magistrate, in between, had passed an order in favour of the petitioner which was questioned by the respondents including the lease granted to the petitioner. The petitioner at that stage filed Writ Petition No. 35137 of 2008 and the same was disposed of with a direction to the Commissioner to decide the revision filed by the petitioner as the interim order passed by the Sub-Divisional Magistrate had been withdrawn. The Commissioner, thereafter, proceed to dismiss the revision. Hence this writ petition.

Sri Santosh Kumar Srivastava contends that once the pond was settled after due publication and notice, and the respondents had not come forward to bid in the same, then there was no occasion for the respondent authorities to entertain the application of the contesting respondents at a subsequent stage. He contends that the settlement in favour of the petitioner was in conformity with law, inasmuch as, the decision of the Full Bench Ram Kumar's case and other decisions clearly recite, that in case the preferential category candidate does not come forward, with any offer then the pond should not be left unsettled, and it has to be settled to avoid any loss of revenue to the concerned Gaon Sabha. Sri Santosh Kumar Srivastava further submits that in view of the aforesaid pronouncement of this Court, the proceedings initiated culminated with an allotment in favour of the petitioner that is perfectly in consonance with law. There was no occasion to have set aside the same without recording any finding on the said issue. Sri Srivastava submits that neither the Additional District Magistrate nor the Revising Authority had averted to the aforesaid aspects and had simply proceeded on the premise that since the petitioner does not belong to the preferential category, therefore, he was not entitled for any allotment and have tried to justify the cancellation on the said ground. Sri Srivastava submits that the impugned orders, therefore, deserve to be set aside.

Sri M.N. Singh submits that the answering respondent nos. 6 and 7 belong to Dhimar community, which is the preferential category entitled for a preferential treatment and, therefore, the settlement should have been made in their favour. Learned Standing Counsel has also adopted the same argument and submits that the subsequent allotment made in favour of the respondents is perfectly justified.

I have perused the affidavits that have been exchanged between the parties. The categorical stand taken by the petitioner in paragraphs 6 and 7 of the writ petition is as follows:

"5. That giving rise facts of the case it is stated that the ponds in question were being given for fisheries lease earlier.

6. That after expiring the earlier tenure of the lease deed, the re-auction proceedings was taken place by the Tehsildar Baghpat as well as the Land Management Committee on 27.7.2007 after wide publication in the daily newspaper and doing Munaid in the Gram Panchayat."

The reply given by the contesting respondents as well as the State is absolutely unsatisfactory, inasmuch as, practically they do not deny the aforesaid averments contained in the writ petition. It is, therefore, clear that the settlement in favour of the petitioner had been made in the absence of any preferential category candidate coming forward to take the pond or making an offer in that regard. The publication part, therefore, remains undenied and in such a situation, it cannot be said that the proceedings in favour of the petitioner were illegal or against the Government Order as indicated hereinabove. As a matter of fact, the contention of the petitioner that this was done in consonance with the law laid down by the Full Bench as followed in the case of Satya Vrat Singh Vs. State of U.P. through its Secretary (Revenue), Lucknow and others reported in 2006 (101) RD 245 appears to be correct. Paragraph 6 of the said decision on which reliance has been placed is quoted below:

6. However, if no person belonging to the preferential category as mentioned in the Government Order dated 17.10.1995 is interested in taking the lease then the pond cannot be left vacant. It will have to be given to any other person who is interested in taking the fisheries lease and is highest bidder in the open auction. According to the Full Bench even if in the preferential category more than one person are interested, then the lease shall be settled through auction."

In the absence of any such finding, the impugned orders cannot be sustained. Accordingly, the orders dated 16.1.2008 and 2.2.2010 are quashed.

The matter is remitted back to the Additional District Magistrate (Finance/Revenue), Baghpat to decide the matter afresh within a period of six weeks from the date of presentation of a certified copy of this order. The petitioner and the contesting respondents shall file their pleadings and represent themselves either personally or their counsel as they choose before the said authority and the matter shall be fixed for disposal by the authority in accordance with law within the time provided hereinabove. The order granting lease to the respondent on 12.2.2008 by the Sub-Divisional Magistrate, Baghpat shall abide by the final decision taken by the Additional District Magistrate in the light of the observations made hereinabove.

The writ petition is partly allowed.

Dt. 01.08.2011

Akv