Radha Krishna Swa Sahayata Samuh vs State Of Chhattisgarh
2021 Latest Caselaw 3703 Chatt

                                       1

                                                                         NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                        WPC No. 4570 of 2021

  1. Radha Krishna Swa Sahayata Samuh Through- The President- Smt. Mamta
     Bai Yadav W/o Basna Yadav Aged 38 Years, R/o Village- Beltukri, Tahsil -
     Nawagarh, District- Bemetara (C.G.), Chhattisgarh

                                                                  ---- Petitioner

                                    Versus

  1. State Of Chhattisgarh Through- The Secretary, Panchayat And Rural
     Development Department, Mantralaya New Raipur, District- Raipur (C.G.),
     Chhattisgarh

  2. The Secretary Department Of Home Affairs, Mahanadi Bhawan, Mantralay,
     New Raipur, District- Raipur (C.G.), Lakshadweep

  3. The Collector Bemetara, District- Bemetara (C.G.), Chhattisgarh

  4. Assistant Director Fisheries Department, District- Bemetara (C.G.),
     Chhattisgarh

  5. Sarpanch Gram Panchayat Beltukri, Block Nawagarh, District- Bemetara
     (C.G.), Chhattisgarh
                                                         ----Respondents

For Petitioner : Ms. Sharmila Singhai, Sr. Advocate along with Mr. Kanwaljeet Singh Saini, Advocate For State : Mr. Ashish Tiwari, G.A.

For Respondent No. 5 : Mr. Awadh Tripathi, Advocate.

Hon'ble Shri Justice P. Sam Koshy Order On Board 15.12.2021

1. The present writ petition has been filed aggrieved by the two orders

(Annexure P/1) and (Annexure P/2). Both the orders have been

passed by the respondent No.3-Collector.

2. Vide the impugned orders, the Collector-respondent No. 3 has

stayed a lease deed which is said to have been executed between

the petitioner and the respondent No. 5 on 04.07.2020. The whole

dispute revolves around the action on the part of the respondent No.

3 in issuance of the order Annexure P/1.

3. The brief facts of the case are that, in village Beltukri Tahsil

Nawagarh District Bemetara, there is a pond known as Khambha

Pond. The petitioner's society had claimed for grant of lease over

the said pond for fisheries. It is said that the Gram Panchayat had

granted necessary approval, sanction and consent for the pond to

be given on lease and accordingly the lease was ordered to be

given to the petitioner by the Gram Panchayat vide order dated

03.07.2020. The said order has after due recommendation been

given by the District Collector. Based upon which a lease is said to

have been executed on 04.07.2020 between the petitioner-Society

and the respondent No. 5. According to the counsel for the

petitioner, subsequently the petitioner was doing the fisheries work

by putting necessary fish seeds in the said pond. Abruptly the

Collector vide Annexure P/1 dated 19.05.2021 has stayed the effect

and operation of the lease until further order. Meanwhile, the

petitioner is also said to have moved an application for vacating stay

on 14.06.2021. However, before consideration of the said order

itself, the respondent-authorities on an instruction received from

State Government dated 06.08.2021, the Collector has passed the

second impugned order Anenxure P/2 on 07.08.2021 further staying

the effect and operation of the lease deed. The said orders

Annexure P/1 and Annexure P/2 are subjected to challenge in the

present writ petition. This High Court had initially on admission

stage itself allowed a writ petition i.e. WP(C) No. 4570 of 2021 and

setting aside the two impugned orders, had remanded the matter

vide order dated 16.11.2021. The said order of this Court was

subjected to challenge in a Writ Appeal i.e. W.A. No. 424 of 2021

and the Division Bench on 09.12.2021 has allowed the Writ Appeal

only on the ground that the said writ petition was allowed at the

motion stage without an opportunity of hearing to the other side.

4. The Division Bench relied upon a recent judgment of the Hon'ble

Supreme Court in the case of Johra and others v. State of

Haryana and others, reported in (2019) 2 SCC 324. It was the

categorical observation made by the Division Bench that in the light

of the aforementioned judgment of the Hon'ble Supreme Court, no

order could have been passed prejudicial to the interest of a party or

without hearing such party. The categorical contention of the

petitioner in the instant case is that the impugned order Anenxure

P/1 was passed without even issuing notice to the petitioner and

have stayed the further effect and operation of the lease deed with

intimation to the concerning parties to be henceforth given.

5. Further from the perusal of the impugned order Annexure P/2 dated

07.08.2021 again it appears that the same has also been passed

without giving an opportunity of hearing to the petitioner neither has

the District Collector Respondent No. 3 considered the application

for vacating stay filed by the petitioner on 14.06.2021 before staying

the effect and operation of the lease deed.

6. Learned Counsel for the respondent No. 5 on the other hand

opposing the petition submits that though the pleadings reflect that

the lease deed has been executed on 04.07.2020 but the lease

deed has infact been newly registered only on 08.04.2021 and as

such when the impugned order Annxure P/1 was passed on

19.05.2021, there was in-fact no lease deed executed and therefore

the interest of the petitioner has not been prejudicially affected.

7. Learned counsel for the respondent No. 5 in addition submits there

is further development to the extent that apart from the order of the

State Government dated 06.08.2021, there is yet another order

dated 14.12.2021 whereby the Government itself has ordered for

taking necessary steps for cancellation of the lease and also for

taking appropriate action against the erring officials, who have got

the lease deed executed.

8. Be that as it may, the factual position as it stands admitted, is that

there was a lease deed executed between the parties and the lease

deed had already come into force. If the lease would not have been

executed, there would have been no occasion for the Collector to

have stayed the effect and operation of the lease deed on

19.05.2021.

9. Now the issue is whether the lease deed could have been stayed in

contravention to the condition to the lease deed and also weather

the lease could have been stayed or cancelled without a fair, proper

and reasonable opportunity of hearing to the lessee. Admittedly, at

the time of passing of the two orders Annexure P/1 and Annexure

P/2, the petitioner was not given an opportunity of hearing. Both

these orders have been passed in-respect of the complaint made by

the Sarpanch of that village Beltukri and the Annexure P/2 has been

passed at the instance of an order of the State Government dated

06.08.2021. The order-sheets do not reflect the petitioner having

been heard or granted an opportunity of hearing, at-least issuance

of notice also was not made by the District Collector before passing

of two the impugned orders.

10. If we take into consideration the analogy led by the Division

Bench of this Court in the subject matter writ petition itself i.e. Writ

Appeal No. 424 of 2021 wherein in paragraph-8 it has been

reflected as under :-

"8. In the case of Johra and others v. State of Haryana and others, reported in (2019) 2 SCC 324, the Hon'ble Supreme Court had laid down that no order can be passed prejudicial to the interest of a party without hearing such party and in the said case, the order having been passed without hearing such a party, the order passed was set aside."

11. The same analogy squarely applies so far as the action on the

part of the Collector at the time of passing of the two orders dated

19.05.2021 and 07.08.2021 are concerned. As has been held earlier

in the preceding paragraph, prima facie, this Court is of the opinion

that two orders have been passed without hearing the other side

and the two orders have been passed keeping aside the agreement

and the lease deed. Rightly or wrongly, the lease deed has in-fact

been also executed between the parties. Now in the event if the

lease deed was not proper, the recourse available with the

respondent-authorities was to cancel the lease deed in accordance

with the terms and conditions stipulated in the lease deed between

the parties. The respondent No. 5 having made a complaint to the

Collector, it was expected of the Collector to have registered a case

and then issued notice to the concerned affected parties and

thereafter should have passed an order. Staying of an order of the

executed lease deed would definitely be an act prejudicial to the

interest of a party and which is also detrimental for the reason that

in between the lessee must have already invested some amount of

money in the pond over which the lease deed was executed. Thus,

this Court is of the opinion that the two orders Annexure P/1 and

Annexure P/2, prima facie seem to be in violation of the principle of

nature justice.

12. Given the fact that the two orders would not be sustainable in the

eye of law and therefore the same deserve to be and are according

set aside and the matter stands remitted back to the learned district

Collector respondent No. 3 who in-turn shall proceed with the matter

after giving a fair and a reasonable opportunity to all the parties

interested in the dispute and take an appropriate decision in

accordance with the law at the earliest.

13. Needless to mention that the parties would be at liberty to move

appropriate applications also before the Competent Authority.

Sd/-

P. Sam Koshy Judge Jyoti