Allahabad High Court
Shital vs State Of U.P. And 5 Others on 2 July, 2019
Bench: Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. 9
Case :- WRIT - C No. - 14609 of 2019
Petitioner :- Shital
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Jamil Ahamad Azmi
Counsel for Respondent :- C.S.C.,Ramesh Chandra Upadhyay
Hon'ble Anjani Kumar Mishra,J.
Heard Shri Jamil Ahamad Azmi, learned counsel for the petitioner, Shri R.C. Upadhyay, learned counsel for respondent no. 5 Gaon Sabha and learned Standing Counsel for the State respondents.
The instant writ petition seeks a writ of certiorari, quashing the order dated 28.02.2019 passed by respondent no. 3 the Sub Divisional Magistrate, Tehsil District Azamgarh whereby an application filed by respondent no. 6 has been allowed.
The dispute pertains to a fisheries lease regarding pond No. 11714 m area 0.751 hectares, situated in village Jokahara, Tehsil Sagri, Azamgarh.
The fisheries lease for this pond had been granted to Purendra @ Purai on 11.12.2013 for a period of ten years. The lessee died on 25.04.2018. Upon his death an application was filed by his widow that the lease be continued in her favour for the remainder of its term.
The petitioner on the other hand, filed an application that the lease be cancelled and the pond be auctioned afresh.
Vide order dated 28.02.2019 the application of the opposite party has been accepted by the impugned order meaning thereby that the lease stands transferred in her favour, by succession for the remainder of its term i.e. till 13.08.2023.
The order is impugned on the sole ground that the provisions contained in Section 28C of the U.P. Panchayat Raj Act have been ignored while passing it.
The said provisions reads as follows:-
"28-C. Members and officers not to acquire interest in contracts etc., with Bhumi Prabandhak Samiti.- (1) No member or office bearer of Gram Panchayat of Bhumi Prabandhak Samiti shall, otherwise than with the permission in writing of the Collector, knowingly acquire or attempt to acquire or stipulate for or agree to receive or continue to have himself or through a partner or otherwise any share or interest in any licence, lease, sale exchange, contract or employment with, by or on behalf of the Samiti concerned.
Provided that a person shall not be deemed to acquire or attempt to acquire or continue to have or stipulate for or agree to receive any share or interest in any contract or employment by reason only of his-
(a) Having acquired any interest before he became a member or office bearer;
(b) Having a share in a joint stock company which makes the contract; and
(c) Having a share or interest in the occasional sale through the Samiti concerned of an article in which he regularly trades up to a value not exceeding Rs. 50 in any one year.
(2) No court or other authority shall enforce at the instance of any person a claim based upon a transaction in contravention of the provisions of sub-section (1)."
The contention of counsel for the petitioner relying upon the aforesaid provisions is that no prior permission had been sought by the opposite party from the Collector as required by the afore quoted provision and therefore, the lease could not have been continued in her favour on the death of her husband the original lessee especially because the opposite party no. 6 is a Member of the Land Management Committee.
I do not find any substance in the argument raised because embargo placed by Section 28 C of the Panchayat Raj Act is upon a person knowingly acquiring or attempting to acquire a share or interest in any licence, lease, sale exchange, contract or employment executed by the Bhumi Prabandhan Samiti.
This Court has already held earlier that a fisheries lease, is heritable. It is not in dispute that the lessee died during the currency of the lease in his favour. The lease hold rights devolve upon the heir(s) of the lessee by succession and not by any overt act of the heir/successor.
In case, argument by the petitioner is accepted it would necessarily mean that before the petitioner could succeed to the rights, interest and property held by her deceased husband she was required to obtain prior permission of the Collector.
The right which has been recognized by the impugned order is a right based on succession and on the untimely demise husband of the respondent no. 6.
This succession cannot be termed as an attempt by the respondent no. 6 to knowingly acquire share or interest in the fisheries lease in question. A right has accrued in favour of the sixth respondent by operation of law on the death of her husband which is not within the control of any individual.
Under the circumstances, the order impugned has rightly been passed in consequence with earlier judgment of this Court which held that a fisheries lease is heritable for the balance of its term on the death of original lesse. Besides such succession is by operation of law and is not contingent upon an application for succession.
For the same reasons, the right accruing to the sixth respondent in the case at hand, was not something which was knowingly acquired.
Succession, in my considered opinion, cannot fall within the ambit of the term knowingly acquired or attempting to acquire because no voluntary act on the part of the respondent no. 6 was required to be performed for her to acquire the interest in the lease by succession.
In view of the foregoing discussion and since the submission made by counsel for the petitioner does not find favour with this Court, this writ petition fails and is dismissed.
Order Date :- 2.7.2019
RKM
