Ramanand Sahani vs State Of U.P. And 4 Ors.
2015 Latest Caselaw 479 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6                                                        AFR
 

 
Case :- WRIT - C No. - 24241 of 2015
 

 
Petitioner :- Ramanand Sahani
 
Respondent :- State Of U.P. And 4 Ors.
 
Counsel for Petitioner :- Manish Chandra Tiwari,Anil Kumar Chaudhary
 
Counsel for Respondent :- C.S.C.,P.K.Sahni,R.C. Upadhyay
 

 
Hon'ble Ran Vijai Singh,J.

This writ petition has been filed with the following prayers:

"1. issue a writ, order or direction in the nature of mandamus directing the District Magistrate, Mau to decide the case pending before him in between Ramanand Vs. Sudhir and Others u/s 60(2)(b) of Gaon Sabha Manual against order dated 18.2.2014 passed by the Sub Divisional Magistrate, Madhuban, District Mau;

2. issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.

3. award the cost of the writ petition in favour of the petitioner."

Heard Sri Manish Chandra Tiwari, along with Sri Anil Kumar Chaudhary, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents, Sri R.C. Upadhyay, learned counsel for the Gaon Sabha and Sri Pawan Kumar Srivastava, holding brief of Sri Pramod Kumar Sahani, learned counsel for respondent no. 5.

It was argued before this Court that the entire proceeding of the allotment of ponds situated over plot nos. 244 and 246 measuring about 407 air situated in Village Gurumha, Tehsil Madhuban, District Mau is farce, as it was made contrary to the provisions contained in Government Order dated 17.10.1995 as well as Government Order dated 9.7.2013. Considering the same, this Court on 29.4.2015 passed the following order:

"Heard Sri Manish Chandra Tiwari along with Sri Anil Kumar Chaudhary, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents, Sri Vinod Kumar Patel, along with Sri Pramod Kumar Sahani, learned counsel for the respondent no. 5 and R.C. Upadhyay, learned counsel for the Gaon Sabha.

In substance, the petitioner appears to be aggrieved by approval to execute the lease in favour of respondent no. 5 pursuant to the advertisement dated 28.1.2014 published in Dainik Hindustan. The advertisement appears to have been issued by the Assistant Registrar (Kanoongo), Tehsil Madhuban, District Mau. The petitioner has brought on record the copy of the advertisement, which does not contain the names of the villages, pond number, its area and other requirements for participating in the settlement of fishery lease.

It is contended that the aforesaid advertisement is contrary to the provisions contained in the Government Order dated 17.10.1995 as well as Government Order dated 9.7.2013 circulated vide letter no. 1750/1-2-2013-96(writ)/13 by the Principal Secretary, Government of U.P. and the law laid down by this Court in the case of Pramod Kahar and Others Vs. State of U.P. and Others (2012 (94) ALR 538) and Smt. Kaushaliya Devi Vs. State Of U.P. And 4 Os. (WRIT - CNo. - 39590 of 2014 decided on 8.1.2015). In his submissions, the entire proceeding pursuant thereto is void abinitio.

Learned standing counsel is directed to seek instructions in this matter and produce the records justifying the issuance of the advertisement and apprising the Court as to whether the advertisement has been issued in consonance with the Government Order dated 17.10.1995 as well as Government Order dated 9.7.2013 and the law laid down by this Court in the case of Pramod Kahar (supra) and Smt. Kaushaliya Devi (supra).

It shall also be apprised to this Court as to whether the lease has been executed in favour of respondent no. 5 or not.

As prayed, put up this case as fresh on 12.5.2015. On that date, the Sub Divisional Officer, Madhuban, District Mau shall remain present before this Court along with complete records in order to assist the learned standing counsel. "

Pursuant thereto, learned standing counsel has sought instructions. Sri Amar Nath Rai, Sub Divisional Officer, Tehsil Madhuban, District Mau is also present before this Court along with complete records.

The contents of the advertisement dated 28.1.2014 published in Dainik Hindustan is reproduced herein below:

dk;kZy; miftykf/kdkjh e/kqou&eÅ

uhykeh lwpuk

-------------------------- rykc] iks[[email protected]; ,oa vU; iz.kkfy;ksa ds nl nl o"khZ; eRl; ikyu vkoVau gsrq ik= O;fDr;ksa ds eRl; uhykeh rglhy ----------------- fnuakd 30&01&2014 dks fuf'pr dh x;hA

lgk;d jftLVkj dkuwuxks

rglhy e/kqou tuin eÅ m0 iz0

----------------

This Court in Pramod Kahar and Others Vs. State of U.P. and Others (2012 (94) ALR 538) has issued a guideline for issuing advertisement for the purposes of settlement of fishery lease. Pursuant thereto, on 9.7.2013, the State Government issued a Government Order requiring the details to be published in the advertisement for settlement of fishery lease, which is reproduced below:

" la[;k&[email protected]&2&2013&96 ¼fjV½ @13

izs"kd]

fd'ku flag vVksfj;k

izeq[k lfpo

mRrj izns'k 'kkluA

lsok esaa]

leLr ftykf/kdkjh

mRrj izns'kA

jktLo vuqHkkx&2 y[kum%fnukad 09 tqykbZ 2013

fo"k;& xakol lHkk esa fufgr [email protected][kjks @ehuk'k;ksa ,oa ty iz.kkfy;ksa dk izcU/kA

egksn;~

mi;qZDr foa"k; ij flfoy fel fjV ;kfpdk [email protected] izeksn dgkj o vU; cuke jkT; ljdkj o vU; esa ikfjr ek0 U;k;ky; ds vkns'k fnuakd 16&4&2012 rFkk fjV ;kfpdk la[;k& [email protected] jktukFk cuke mi ftykf/kdkjh 'kkgxat] tkSuiqj ,oa ek0 mPp U;k;ky; bykgkckn ds ikfjr vkns'k fnuakd 22&5&2013 ,oa fjV ;kfpdk la[;k& [email protected] jktdqekj cuke jkT; ljdkj o vU; esa ek0 mPp U;k;ky; ds ikfjr vkns'k fnuakd 14&5&2011 ds lanHkZ esa eq>s ;g dgus dk funs'k gqvk gS fd mRrj izns'k tehankjh fouk'k ,oa Hkwfe O;oLFkk vf/kfu;e 1950 dh /kkjk& 126 ¼1½ ds lkFk ifBr mRrj izns'k tehankjh fouk'k ,oa Hkwfe O;oLFkk fuek;oyh 1952 ds fu;e& 115&d ¼3½ sa vUrxZr eRL; ikyu dk;Z dk lE;d ykHk eNqvk leqnk; vkSj [email protected] tkfr ds O;fDr;ksa dks fn;s tkus gsrq jkT;iky egksn; }kjk mRrj izns'k Hkwfe izcU/kd lfefr fu;e laxzg esa ek0 mPp U;k;ky; ds ikfjr vkns'k fnuakd 22&5&2013 ,oa 28&5&2013 ds vuqikyu es xzke lHkkvksa esa fufgr [email protected][[email protected]'k;ksa ,oa ty iz.kkfy;ksa ds izcU/ku ls lEcfU/kr izk:i dks 'kklukns'k fnuakd 17&10&95 ds izLrj&5 ¼4½ esa lfEefyr fd;s tkus dh lg"kZ Lohd`fr iznku djrs gSa

2& uhykeh izfdz;k ls lEcfU/kr izk:i fuEuor~ gS%&

uhykeh lwpuk& tuin ¼tuin dk uke fy[kk tk;½

rglhy ¼rglhy dk uke fy[kk tk;½

loZ lk/kkj.k dks lwfpr fd;k tkrk gS fd fuEuakfdr fooj.kkuqlkj eRL; ikyu gsrq [email protected][[email protected] ehuk'k; ,oa ty iz.kkfy;ksa ds 10 o"khZ; vkoaVu gsrq ik= O;fDr;ksa ds e/; uhykeh dh tk;xh%&

dze la0

xzke lHkk @Cykd rglhy dk uke

srkykc @iks[[email protected]

ehuk'k; ,oa ty iz.kkfy;ksa dk fooj.k

vkjf{kr cksyh /kujkf'k ¼izfr gs0½ ¼:i;s es½

fuykeh dh frfFk o le;

cksyh cksyus ds fy;s tekur jkf'k ¼vkjf{kr cksyh /kujkf'k dk 10 izfr'kr½

fuykeh dk LFkku

[kljk la0

{ks=Qy ¼gs0½

1&uhykeh izfdz;k esa cksyh cksyus dh ik=rk ,oa 'krsZ 'kklukns'k ¼;Fkkla'kksf/kr½ la[;k&[email protected]&2&95&jk&2 fnuakd 17&10&95 ds vuq:i gksxh tks rglhy eq[;ky; ,oa jktLo ifj"kn dh osclkbZV bor.up.nic.in ij miyC/k gSA

2& iV~Vs dh 'krksZ ,oa uhykeh ls lEcfU/kr fdlh vU; tkudkjh uhykeh dh frfFk ls iwoZ dk;kZy; rglhynkj ¼rglhy dk uke fy[kk tk;½ ls fdlh Hkh dk;Zfnol dks izkIr dh tk ldrh gSA

fnuakd ¼gLrk{kj½

uke o inuke

mi ftykf/kdkjh -------

3& d`i;k mijksDr la'kks/ku ls vius v/khuLFk vf/kdkfj;ksa rFkk Hkwfe izcU/kd lfefr;ksa dks Hkh voxr djkus dk d"V djsaA rnuqlkj bl lEcU/k esa iwoZ es tkjh fd;s x;s 'kklukns'kksa esa fufgr funsZ'k la'kksf/kr ekus tk;sxs rFkk mijksDr vkns'k rkRdkfyd izHkko ls ykxw gksxsA

Hkonh;]

fd'ku flag vVksfj;k

izeq[k lfpoA

la[;k&1750 ¼1½@1&2&2013&96 ¼fjV½@13 rn~fnuakd

izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq iszf"kr%&

1&vk;qDr ,oa lfpo] jktLo ifj"kn] mRrj izns'k y[kumA

2&leLr e.Mkyk;qDr mRrj izns'kA

3&funs'kd eRl; mRrj izns'kA

4&i'kqikyu vuqHkkx&2] iapk;rhjkt vuqHkkx&[email protected] flapkbZ vuqHkkx&3 m0iz0 'kkluA

5& jktLo lfpo 'kk[kk ds leLr vuqHkkxA

6& xkMZ QkbyA

vkKk ls

¼t; izdk jkxj½

fo'ks"k lfpoA "

From the perusal of the Government Order dated 9.7.2013, it transpires that while issuing the advertisement, the number of pond, its area, minimum bid which is to be offered, date & time of settlement of proceeding for auction, details of deposit of security and place for settlement of fishery lease, etc. have to be disclosed.

Here, in this case, from the perusal of the advertisement, which has been brought on record as Annexure No. 3 to the writ petition, it transpires that the advertisement does not contain anything as required under the Government Order dated 9.7.2013, whereas the advertisement was issued on 28.1.2014. It also transpires that the advertisement has been issued by the Assistant Registrar (Kanoongo), who does not have power to issue such advertisement. From the perusal of the record, it transpires that only the Revenue Inspector, Tehsildar and Sub Divisional Officer have signed the memo of the bid, whereas as per the Government Order dated 17.10.1995, at the time of auction, presence of a person nominated by the District Magistrate of the concerned district from the Machhua community as well as an Officer of the Fishery Department and the Pradhan of the concerned village is required, who are required to sign the memo of bid. This is apparently lacking on the face of the record, therefore, the auction proceeding, on the basis of the advertisement dated 28.1.2014 with respect to ponds over plot nos. 244 and 246 measuring about 407 air situated in Village Gurumha, Tehsil Madhuban, District Mau, is illegal.

In view of the aforesaid, the writ petition succeeds and is allowed. The auction proceeding, pursuant to the advertisement dated 28.1.2014 with respect to ponds over plot nos. 244 and 246 measuring about 407 air situated in Village Gurumha, Tehsil Madhuban, District Mau, is hereby quashed.

It may be noticed that the learned standing counsel, on being confronted as to whether pursuant to the proceeding dated 7.2.2014, other leases have also been executed or not, he states that no other lease has been executed. Sri Pawan Kumar Srivastava, learned counsel appearing for respondent no. 5 submits that pursuant to the advertisement, proceeding was not concluded only with respect to pond in question, but other ponds were also put for settlement of lease and the leases have been executed.

Since this Court has held that the auction proceeding pursuant to the advertisement dated 28.1.2014 is patently illegal, therefore, the Collector concerned is directed to initiate a proceeding for cancellation of the lease executed in favour of other lessees and thereafter, conclude the proceeding expeditiously in accordance with law, after hearing all concerned, preferably, within a period of six months from the date of receipt of certified copy of the order of this Court.

The Sub Divisional Officer is also directed to initiate a fresh proceeding in accordance with law and conclude the same within a period of three months from the date of receipt of certified copy of the order of this Court with respect to pond in question. Since Sri Amar Nath Rai, Sub Divisional Officer, Tehsil Madhuban, District Mau is present before this Court, therefore, no separate information is required to be given. He has to proceed in accordance with law.

Order Date :- 12.5.2015

Amit Mishra