Popai vs State Of U.P. Thru. Prin. Secy. ...
2021 Latest Caselaw 8274 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2								 A.F.R.
 

 
Case :- MISC. BENCH No. - 15087 of 2021
 
Petitioner :- Popai
 
Respondent :- State Of U.P. Thru. Prin. Secy. Revenue Lko. & Ors.
 
Counsel for Petitioner :- Kaushal Kishore,Mohammad Salman
 
Counsel for Respondent :- C.S.C.,Mohan Singh
 

 
Hon'ble Rajan Roy,J.

Hon'ble Ravi Nath Tilhari,J.

1. Heard Sri Kaushal Kishore, learned counsel for the petitioner and learned Standing Counsel for the State-opposite party nos. 1 to 3 and Sri Mohan Singh, learned counsel for the opposite party no. 4.

2. This writ petition has been filed with the following main relief:-

"i. issue a writ, order or direction in the nature of mandamus commanding/directing the opposite parties concerned to mandate for conferring the benefit of enjoyment of Fisheries lease from five years to ten years to the petitioner considering the date of registration as accrual of rights in favour of petitioner alongwith social justice in the light of notification dated October 20, 2016 substituted earlier Notification."

3. Facts of the case are that the petitioner was granted lease of fishing rights in pond bearing Gata No. 2041 admeasuring 1.520 hectares situated at village- Kushfar, Pargana- Dariyabad, Tehsil Ram Sanehighat, District Barabanki, which was approved by the Sub-Divisional Magistrate on 18.07.2016. The lease deed in RC form 15 was executed for a period of five years w.e.f. 18.07.2016 upto 17.07.2021 and was registered on 14.03.2017.

4. Rule 57 (12) of the Uttar Pradesh Revenue Code Rules, 2016 (hereinafter referred to as 'the Rules, 2016') was substituted vide notification No. 1364/1-1-2016-20(8)-2016 dated 20.10.2016 published in the Uttar Pradesh gazette on the same date, by which it was provided that every such lease (fisheries lease) shall be executed for a period of ten years and the same shall not be renewed or extended. The petitioner filed an application requesting the Sub Divisional Officer concerned to change the period of lease from five years to ten years in view of substituted Rule 57(12), as his lease was registered on 14.03.2017. Prior to this substitution, the period of lease was only five years. Petitioner was granted lease for a period of five years as the lease was granted under sub-Rule 12, as it was existing on that date i.e. prior to its substitution.

5. The petitioner's counsel submits that the date of registration of the petitioner's lease being 14.03.2017 i.e. after the amendment of sub-Rule (12) of Rule 57, the petitioner is entitled to continue for a period of ten years, as it is the date of registration which is relevant and not the date of approval of fishery lease by the Sub Divisional Officer. He further submits that in the case of one Hanuman Prasad, the lease has been granted for ten years, although, in his case also, the lease deed was registered after the amended Rule 57(12) came into force, for which benefit the petitioner is also entitled.

6. Learned Standing Counsel submits that the amendment came into force on 20.10.2016, whereas the lease was granted under the unamended Rule, under which the period of lease was five years. He further pointed out that in the case of Hanuman Prasad, approval by the Sub Divisional Officer was granted on 02.11.2016, after the amended Rule 57(12) came into force.

7. We have considered the submissions advanced by learned counsel for the parties and perused the material on record.

8. There is no dispute that the lease was granted on 18.07.2016 for a period of five years and it was registered on 14.03.2017. The only question is applicability of substituted Rule 57 (12) of the Rules, 2016 to a lease approved before the commencement of substituted Rule but lease deed registered after it.

9. The management of village tanks is provided by Section 61 of the Uttar Pradesh Revenue Code, 2006, which provides as under:-

61. Management of village tanks.- Where a tank in any village is entrusted or deemed to be entrusted to any Gram Panchayat under section 59, then, notwithstanding anything contained in any contract or grant or any law for the time being in force, its management by such Gram Panchayat shall be regulated by the following conditions, namely:-

(a) where the area of the tank measures 0.5 acre or less, it shall be reserved for public use by the inhabitants of the village;

(b) where the area of the tank exceeds 0.5 acres, the Bhumi Prabandhak Samiti shall, with the previous approval of the Sub-Divisional Officer, let it out in the manner prescribed.

Explanation. - For the purpose of this section, the term ''tank', includes talab, pond, pokhar and other land covered with water.

10. As per Section 61(b), where the area of the tank exceeds 0.5 acre, the Bhumi Prabandhak Samiti shall, with the previous approval of the Sub-Divisional Officer, let it out in the manner prescribed. The manner is prescribed under Rules, 2016. Rule 58 relates to the lease of bigger tanks which exceeds 5 acre. Sub-Rule (2) applies the provisions of Rule 57 mutatis mutandis.

11. Rule 58 of the Rules, 2016 reads as under:-

"58. Lease of bigger Tanks (Section 61)- (1) Where the area of a tank referred to in section 61(b) exceeds 5 acres, the Samiti shall let it out with the prior approval of the Sub-Divisional Officer in the following order of preference:-

(a) Co-operative Societies of fishermen residing in the concerned village registered under the U.P. Cooperative Societies Act, 1965 and recognized by the Fisheries Department.

(b) Co-operative Societies of fishermen residing in the concerned Nyaya Panchayat Circle registered and recognized as above.

(c) Co-operative Societies of fishermen residing in the concerned Development Block registered and recognized as above.

(d) Co-operative Societies of fishermen residing in the district concerned registered and recognized as above.

(e) Co-operative Societies of fishermen residing in the State of Uttar Pradesh and registered and recognized as above.

(f) Co-operative Societies of members of Scheduled Castes or Scheduled Tribes registered and recognized as above.

(g) Other Co-operative Societies registered and recognized as above.

(2) In all other respects, the provisions of rule 57 shall mutatis mutandis apply to the leases of tanks covered by this rule. Subject to the condition that, if, there is only one Co-operative Society eligible for the lease aforesaid, the lease shall be granted on the annual rent of the amount fixed by the State Government from time to time which shall not be less than Rs. 4000/- per acre."

12. Rule 57 of the Rules, 2016 is also being reproduced as under:-

"57. Lease of smaller Tanks (Section 61).-

(1) Where the area of a tank referred to in section 61(b) exceeds 0.5 acre but does not exceeds 5 acres, the Samiti shall let out the same for fishing purposes or for growing Singhara with the prior approval of the SubDivisional Officer in accordance with the following procedure.

(2) For the purposes of letting such tanks, a camp shall be organized at the Tahsil level, about which wide publicity shall be given by publishing the date, time and place of the camp in at least one Hindi newspaper having wide circulation in the area.

(3) The Chairman, the Secretary and an officer not below the rank of Naib Tahsildar shall be present at such camp meetings. If, more than one Gram Panchayats are involved, the Chairmen and Secretaries of all the Samitees 30 concerned shall attend such meetings.

(4) With the help of the representative of the fishermen community, to be appointed by the Collector for each Tahsil, the Secretary shall prepare a list of eligible persons who may be allotted the tank under reference, in accordance with the order of preference specified in sub-rule (5).

(5) The eligibility list of prospective lessees shall be prepared in accordance with the following order of preference:-

(a) Fishermen residing in the concerned Gram Panchayat;

(b) Members of the S.C.,S.T., Other Backward Classes or persons of General category living below poverty line residing in the Gram Panchayat.

(c) Fishermen residing in the concerned Nyaya Panchayat Circle;

(d) Fishermen residing in the concerned Development Block :

Explanation: For the purposes of this rule and rule 58, the expression ''Fishermen' means any person belonging to the community of Kewat, Mallah, Nishad, Bind, Dheemar, Kashyap, Vatham, Raikwar, Manjhee, Godia, Kahar, Tureha or Turaha or any other person traditionally engaged in the fishing profession.

(6) The persons referred to in any of the preceding clause of sub-rule (5) shall be entitled to the lease of such tank to the exclusion of those specified in the succeeding clauses.

(7) If the list of eligible persons prepared under subrule (4) consists of more than one person, then an auction shall be held on the spot in which only those shall be allowed to participate whose names are included in such 31 list. If there is only one person eligible for the lease aforesaid, the lease shall be granted on the annual rent of the amount fix by the State Government from time to time which shall not be less than Rs. 1000/- and shall not exceed Rs.2000/- per acre.

(8) The provisions of sections 189 and 190 of the Code shall apply to every auction under this rule.

(9) When the amount of the highest bid has been deposited, the eligibility List, the Bid Sheet and a report about the deposit of the bid amount duly signed by the Chairman, Secretary and the revenue officer referred to in sub-rule (3) shall be forwarded to the Sub-Divisional Officer for his approval.

(10) If the Sub-Divisional Officer is satisfied that the decision to let the tank is in accordance with the provisions of these rules, he shall accord his approval and shall return the papers to the Samiti.

(11) If the Sub-Divisional Officer approves the proposal, the papers shall be returned to the Samiti and a Deed of Lease shall be executed in R.C. Form-15 which shall be registered under the Registration Act, 1908.

(12) Every such lease shall be executed for a period of five years and the same shall not be renewed or extended.

(13) The lessee may use the tank allotted to him for the purpose of fishing or producing other aquatic produce or vegetables.

(14) If during the period of lease, the lessee commits any breach of the terms and conditions of such lease, the Sub-Divisional Officer may cancel the lease after issuing a show cause notice to the lessee.

(15) During the period of lease the rights of the local residents to use the tank for purposes of washing clothes, watering the cattle, digging out earth for purposes of pottery or the likes small remain undisturbed."

13. Rule 57 (12) as quoted above is as amended on 20.10.2016. This sub-Rule (12) as it existed prior to such amendment, is also being reproduced hereinafter:-

"57.(12) Every such lease shall be executed for a period of five years and the same shall not be renewed or extended."

14. The use of the expression 'mutatis mutandis' implies applicability of such provision as made applicable with necessary changes in the points of details. In Ashok Service Centre Vs. State of Orissa, reported in (1983) 2 SCC 82, the Hon'ble Supreme Court has held that the expression ''mutatis mutandis' is a phrase of practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like. In Prahlad Sharma Vs. State of U.P. and others, reported in (2004) 4 SCC 113, the Hon'ble Supreme Court has held that, "The expression "mutatis mutandis" itself implies applicability of any provision with necessary changes in points of detail. The rules which are adopted, make the principles embodied in the rules applicable and not the details pertaining to particular authority or things of that nature. Therefore, while applying Rule 57 to the lease of bigger tanks by virtue of Rule 58 (2), the procedure under Rule 57 shall be applicable with necessary changes in points of detail, such as, the area as mentioned therein shall be read as the area of bigger tanks.

15. The manner as prescribed for lease of fisheries is that the samiti i.e. the Land Management Committee, shall let out the tank with the prior approval of the sub-Divisional Officer. The procedure as prescribed is that a camp shall be organized at the Tahsil level, about which wide publicity shall be given by publishing the date, time and place of the camp in at least one Hindi newspaper having wide circulation in that area. The Chairman, the Secretary and an Officer not below the rank of Naib Tehsildar shall be present at such camp, meetings. With the help of the representatives of the fishermen community, to be appointed by the Collector for each Tehsil, the Secretary shall prepare a list of eligible persons in accordance with the order of preference as given in sub Rule (5). The persons in the eligibility list shall be entitled to the lease of Tank to the exclusion of those specified in the succeeding Clauses of the list, meaning thereby, that the persons standing in the order of preference under Clause (a) shall be given preference over the persons in clause (b) and so on. If the list of eligible persons consists of more than one person under the same clause then an auction shall be held in which only those persons whose names are included in the list shall be allowed to participate and if there is only one person eligible for the lease, the lease shall be granted to that person on annual rent of the amount fixed by the State Government from time to time, which shall neither be less nor more than the statutory amount. In the case of lease of bigger tanks, the annual rent of the amount shall not be less than Rs. 4000/- per acre. If the auction is held, and the amount of the highest bid has been deposited, the eligibility list, the bid sheet and a report about the deposit of the bid amount duly signed by the Chairman, Secretary and the Revenue Officer shall be forwarded to the sub-Divisional Officer, for his approval and if the Sub-Divisional Officer is satisfied that the decision to let the tank is in accordance with the provisions of Rule 57, he shall accord his approval and shall return the papers to the samiti for a deed of lease to be executed in RC Form 15 which shall be registered under the Registration Act, 1908.

16. Section 61 read with Rule 57, thus provides for the resolution by the Land Management Committee for grant of fishery rights to be passed as per the procedure prescribed which is to be forwarded to the sub Divisional Officer for his approval, who shall accord his approval after being satisfied that the procedure has been followed in accordance with the provisions of the Rules. The ''Approval' means an act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. In Vijayadevi Navalkishore Bhartia vs. Land Acquisition officer [2003 (5) SCC 83], with respect to approval, Hon'ble Apex Court held that Black's Law Dictionary, 6th Edition, defines 'approval' to mean an act of confirming, ratifying, assenting, sanctioning or consenting to some act or thing done by another. In the context of an administrative act, the word 'approval' does not mean anything more than either confirming, ratifying, assenting, sanctioning or consenting. In Sant Lal Gupta & Ors vs Modern Co-operative Group Housing Society Ltd. and Ors [(2010) 13 SCC 336], also the Hon'ble Supreme Court held that the very act of approval means, the act of passing judgment, the use of discretion, and determining as an adjudication there from unless limited by the context of the Statute. If a statute provides for the approval of the higher authority, the order cannot be given effect to unless it is approved and the same remains inconsequential and unenforceable.

17. Therefore, the proposal of the Land Management Committee to let out the tank for fisheries cannot be given effect to unless it is accorded approval by the Sub-Divisional Officer who has to satisfy that the decision to let out is in accordance with the provisions of the Rules, which includes sub-Rule (12) of Rule 57 i.e. that the proposal to let out is for the statutory period prescribed at the time of grant of approval and not otherwise. After such approval is accorded, the lease deed is to be executed in RC Form 15. The lease deed is to be in consonance with the approval and not contrary to it.

18. Considering the Scheme of the Code, 2006 in granting fishery lease, it is the date of approval by the Sub-Divisional Officer which is of utmost importance and relevance as the Sub-Divisional Officer has to satisfy himself about the resolution of the samiti to let out the tank to be in accordance with the provisions of Rules as on the date of consideration to accord approval or not. The relevance of the date of approval is also fortified by the fact that Rule 59 which provides for appeal to the Collector, prescribes thirty days period for filing appeal from the date of approval by the Sub-Divisional Officer.

19. So far as the registration of a document is concerned, in Kumari Sushila Saxena vs. Sub Registrar, Shahjahanpur and Ors. [ 1997 (1) AWC 346], it has been held that registration is merely a notification of the factum of execution of a document evidencing the event of transaction affecting the title qua in person or property. The same principle has been reiterated in Smt. Jota Devi vs. DDC [ 2013 (31) LCD 615] also.

20. In our considered view, the registration of a document cannot affect nor change, the terms and conditions of the document registered which had the approval of the Sub-Divisional Officer, and therefore the date of registration cannot be the relevant date to determine the period of lease. The registration of lease deed in RC Form 15 evidences letting out of tank, in question in favour of the person concerned and subject to the terms and conditions mentioned in RC Form 15. It is an action which is merely consequential to the approval by the Sub Divisional Magistrate.

21. Most importantly, sub-Rule (12) of Rule 57 as substituted, is prospective w.e.f. 20.10.2016 and therefore it shall apply to leases granted after the date of commencement of substituted Sub Rule (12) i.e. w.e.f. 20.10.2016. The applicability of substituted Rule has not been made dependent upon the date of registration of lease deed. It has come into effect from a particular date i.e. 20.10.2016. The substituted sub-Rule (12) does not provide that it shall apply to all the existing leases neither it extends the period of existing lease from five years to ten years nor confers any power on the authorities to extend the period of lease from five years to ten years.

22. The submission of the petitioner's counsel based on grant of lease for ten years to Hanuman Prasad also does not advance the petitioner's case any further as in paragraph 8 of the petition, the petitioner has admitted that in the case of Hanuman Prasad, the date of approval is after the date of commencement of the substituted Rule 57 (12) of the Rules, 2016, which was granted for ten years.

23. We therefore, do not find any merit in the writ petition, which is accordingly dismissed.

 
Order Date :- 20.7.2021
 
Nitesh 
 

 
			       (Ravi Nath Tilhari, J.)     (Rajan Roy,J.)