Targaon Matsya Jeevi Sahkari ... vs Dy. Collector, Sadar Unnao & Ors.
2017 Latest Caselaw 3566 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved 
 
Court No.17
 
AFR
 

 
WRIT PETITION NO.5746 (MB) OF 2010
 

 
Targaon Matsya Jeevi Sahkari Samiti Ltd., Targaon, Unnao
 
Versus 
 
Deputy Collector, Sadar, Unnao and others
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Ravindra Nath Mishra-II,J.

Heard Dr. R.S. Pande, learned Counsel for the petitioner, Sri Badrul Hasan, learned Additional Chief Standing Counsel for opposite parties no.1 to 3 and Sri Ashwani Kumar, learned Counsel for opposite party no.4.

By means of instant writ petition, the petitioner has sought quashing of the order dated 10.11.2009 whereby the Deputy Collector, Unnao (opposite party no.1) has granted patta of fisheries rights in favour of Matsya Samiti arrayed as opposite parties no.4 and 5.

According to the learned Counsel for the petitioner, the petitioner is a society registered under the U.P. Co-operative Societies Act, 1965 with Registration No.624/2009 for the purpose of development of fisheries within the area of Block Bichhiya, District Unnao. On 27.10.2009, the petitioner had moved applications for allotment of Pond No.2236/1913 area 4.655 hectare situates in Gram Panchayat Murtaza Nagar, Block Bichchiya, District Unnao and Pond No.1072 (Kha), area 3.408 hectare situates at Village Badli Khera, Block Bichhiya, District Unnao in consonance with the provisions of Government Order dated 17.10.1995, wherein it has been provided that for grant of lease for fishing rights over ponds upto two hectare shall vest in Gram Panchayat and the Ponds (Talabs) which are more than two hectare shall be allotted by the Deputy Collector to the registered Co-operative Societies of the concerned area. In para 60(2)(Kha) of the Government Order dated 17.10.1995, it has further been provided that while granting patta of the Ponds for fisheries, preferential right shall be given to the Village Level Societies, Nyaya Panchayat Level Societies, Block Level Societies, District Level Societies and then State Level Societies.

The grievance of the petitioner is that the Deputy Collector vide order dated 10.11.2009 without considering the provisions of Government Order dated 17.10.1995, illegally granted patta of the aforesaid two ponds in favour of opposite parties no.4 and 5. The Deputy Collector has wrongly mentioned in his order that there is no registered Co-operative Societies in the area in question, therefore, the District Level Co-operative Societies (i.e. opposite parties no.4 and 5) are being allotted Ponds for fisheries rights and ignored the claim of the petitioner, which is registered at Block Level, therefore, the petitioner has preferential right over the opposite parties. In these circumstances, the petitioner moved an application on 01.01.2010 to the District Magistrate, Unnao for cancellation of the aforesaid lease deed granted in favour of opposite parties no.4 and 5, who are the District Level Societies but no action was taken causing seriuos prejudice to the petitioner's right. To substantiate his arguments, learned Counsel for the petitioner has relied upon number of decisions including the decision rendered by the Full Bench in Ram Kumar Versus State of U.P.;2006 LCD 59, Ram Bali vs. State of U.P. and others; 2010(109) RD 6 and Lallo Mallah Vs. Board of Revenue & others; 2008(105) RD 237.

Refuting the allegations of the petitioner, Sri Badrul Hasan, learned Additional Chief Standing Counsel has submitted that on 27.10.2009, a camp for fishery was organized in the area. The Deputy Collector vide order dated 10.11.2009 granted patta of Pond No.1913 (a) area 4.655 hectare which situates in Gram Sabha Murtaza Nagar to the opposite party no.4 on the ground that there is no society at Nyay Panchayat Level. It has also been mentioned in the impugned order that the Land Management Committee has passed a resolution on 31.07.2009 in favour of opposite party no.4. Similarly, the Deputy Collector has passed another order on the same day and granted patta with respect to Pond No.1072 (Kha), area 3.408 hectare situates at Gram Sabha Badali Khera in favour of opposite party no.5 on the ground that the pond relates to Nyaya Panchayat Taura as in Nyaya Panchayat Taura, there is no registered society. Moreover, the Land Management Committee had also passed a resolution in favour of opposite party no.5 on 03.09.2008. It has also been clarified by the State Counsel that the area of the petitioner is limited to Nyaya Panchayat Bichchiya and Quether, Pargana Hadaha, District Unnao whereas the area of opposite parties no.4 and 5 is the entire District Unnao. It has also been urged that before execution of the lease, proper publicity was to be made by way of issuing notices and beating of drums.

On behalf of private respondents it has been urged that lease for fishing rights was granted by a Tehsil Level Committee consisting of Chief Executive Officer, Fisheries Department, Unnao, Tehsildar Sadar, District Unnao and Inspector (Fisheries), headed by the Deputy Collector, Sadar, who is the competent authority to grant patta in accordance with the provisions of Government Order issued in the year 2006 in compliance with the judgment rendered by this Court in the case of Ram Kumar Vs. State of U.P. and others; 2006 (24) LCD Page 59. It has also been contended that their societies are District Level Societies and its operative area is entire District of Unnao and they were rightly granted patta for fishing rights strictly in accordance with the provisions of the Government Order. Thus, the allegations of the petitioner are wholly misconceived and untenable.

Application of government order dated 17.10.1995 to the present set of facts involves two points for consideration; competency of Deputy Collector to allot pond for fisheries and eligibility of allottees.

So far as question of competency of Deputy Collector to allot ponds in question is concerned, Government Order dated 17.10.1995 makes it is explicitly clear that where area of ponds are above two hectares, Deputy Collector is competent to allot the same. It is not disputed that area of pond no. 2236/1913 situated in Gram Panchayat Murtaza Nagar Block Bichchiya, District Unnao and Pond No.1072 (kha) situated at village Badli Khera, Block Bichhiya, District Unnao are 4.655 hectare and 3.406 hectare respectively. Hence the area of these ponds being above two hectares, Deputy Collector was well within his competence to allot these ponds. Government Order dated 17.10.1995 also provides order of preference of cooperative societies eligible for allotment of ponds, which is as under:-

a) Village level Societies;

b) Nayaya Panchayat level Societies;

c) Block Level Societies;

d) District Level Societies; and

e) State Level Societies

With regard to the eligibility of the petitioner for allotment of ponds, it has been contended by the petitioner that the procedure adopted by respondent no.1 for settlement of the lease, is incorrect. The operative area of the petitioner and the private respondents were different. The petitioner society is Block Level Society whereas private respondents are District Level Societies. Thus, as contended, preference ought to have been given to the petitioner society, being a Block Level Society. Even if, both the societies were operating in one area, Full Bench judgment of this Court, which has been relied upon by the petitioner, in Ram Kumar's case, the Court has held when there are more than one person in one category, the settlement is to be made only by the auction. However, the petitioner in his writ petition has not given the name of the participants to establish that there were more than one person in one category and such auction would have taken place.

As indicated above, in the impugned order it has been observed that when the proposal in favour of the private respondents was made, the society of the petitioner was not in existence. A perusal of the registration certificate shows that it was issued on 30.9.2009 whereas the proposal in favour of the private respondents was made by the Land Management Committee on 31.7.2009 and 3.9.2008 respectively. It is also not disputed that the petitioner-society is a registered block level society and its operative areas of the fishing rights are mentioned in its bye-laws which is limited to Nyaya Panchayat Bichia and Kuither of District Unnao whereas the societies of opposite party no.4 and 5 are District Level societies and its area of operation is entire district of Unnao. The Sub Divisional Officer while passing the impugned order has observed that area of operation of the petitioner-society is limited to Bichia and Kuether whereas Pond No. 1913A/4.665 situates in Nyaya Panchayat Murtazanagar where no registered society was in existence and as such the decision to settled lease in favour of Jeevi Cooperative Society was taken. Similarly, pond no.1072(kha)/3.408 situates in Nyaya Panchayat Taura where again there is no registered society. Even assuming that the area of operation of the petitioner was for the entire Block Bichhiya and not only for Nyaya Pachayat, Bichhiya, then too the petitioner-society was not in existence when the proposal was made by the Land Management Committee in respect of the ponds in question. Since the petitioner-society was neither in existence nor registered at the relevant time when the proposal of allotment of pattas was made for the fishing rights in respect of the area in question, there was no question of giving any preferential right to the petitioner-society.

For the reasons aforesaid, the case laws relied upon by the petitioner are of no avail to him as the facts and circumstances of the present case are entirely different. The Full Bench decision rendered in Ram Kumar's Case is also of no help to him,for the reasons afore-stated. Moreover, the petitioner has failed to establish infringement of any fundamental or statutory right so as to warrant interference under Article 226 of the Constitution.

In view of the foregoing discussions, the prayer of the petitioner for quashing the order approving the lease, is refused. The writ petition stands dismissed accordingly.

Order Date :- 24.8. 2017

akverma