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JAWAHIR PRASAD versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Jawahir Prasad v. State Of U.P. & Others - WRIT - B No. - 55989 of 2007 [2007] RD-AH 17858 (15 November 2007)

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HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.5

Civil Misc. Writ Petition No. 55989 of 2007

The Navik Jal Majdoor Matsya Jivi Sahkari Samiti .......... Petitioner.

Versus

The Board of Revenue and others ........... Respondents.

Hon'ble Krishna Murari, J.

Heard Sri Vijay Chandra Srivastava as well as Sri Piyush Mishra appearing for the petitioner and Sri Manish Nigam appearing for respondent no.5..

Challenge in this petition has been made to the order dated 31.10.2007 passed by the Board of Revenue dismissing the revision filed by the petitioner challenging the allotment of the fishery right in favour of respondent no.5. Briefly stated, the facts giving rise to the dispute are as under:

The petitioner is a registered society. A perusal of the registration certificate filed as annexure-3 to the writ petition goes to show that it is a block level society and its area of operation as mentioned in the said certificate is Vikas Khand Ghughali. Settlement of fishery right in the pond in question in favour of the petitioner-society was challenged by respondent no.5 on the ground that as per the Government Order dated 17.10.1995 he had a preferential right for allotment over the petitioner and the settlement has been made in contravention of the provision of the Government Order. Respondent no.3- Collector, Maharajganj vide order dated 30.3.2007 finding that the respondent no.5 was the president of Matsya Jivi Sahkari Samiti, Puraina Khandi Chaura which was a society operating in the village where the pond in question is situate and as such in accordance with the provision contained in the Government Order dated 17.10.1995, he had a preferential claim over the petitioner's society which was block level society and thus the settlement was wrongly made, cancelled the approval and directed to make fresh allotment in accordance with the procedure contained in the Government Order. The said order was challenged by the petitioner before the Board of Revenue by filing a revision no.42 of 2006-07. Board of Revenue vide order dated 4.5.2007 admitted the revision. On 24.8.2007 the revision came to be dismissed in default. Thereafter, the proceedings for fresh allotment was undertaken by the authorities and the fishing rights in the pond in question was settled in favour of respondent no.5 which was duly approved on 18.9.2007. The petitioner challenged the same by filing the revision no.75. Board of Revenue consolidated both the revisions and by common order dated 31.10.2007 dismissed the same. Board of Revenue also found that the society of respondent no.5 was the only registered society operating in the village where the pond in question was situate and as such it had preferential claim over the petitioner's society which was a block level society and the settlement was made in favour of petitioner 's society in violation of the Government Order dated 17.10.1995.

The petitioner has challenged the virus of the Government Order dated 17.10.1995on the following grounds :

"1. The Land Management Committee of the Gaon Sabha is the constitution authority dismayed in the G.O.

2. It has not given weightage to the Land Management Committee of the Gaon Sabha in the allotment.

3. There is no provision open auction of the pond in question.

4. The revenue of the Gaon Sabha depleted as ponds are important source of revenue which cannot be depleted in any circumstances under the Constitution of India and ruling of High Court and Supreme Court.

As the G.O. Dated 17.10.1995 and 20.11.2006, in question is, supplanting 60(kha) of the Gaon Sabha Manual, and ZA & LR Act hence it is ultra-virus to the Constitution of India under Article 14, 15 and 21 of the Constitution of India."

It has also been urged by learned counsel for the petitioner that the pond in question has illegally and malafidely been settled in favour of respondent no.5 during the period when the revision was lying dismissed in default.

In reply, it has been contended by Sri Manish Nigam appearing for respondent no.5 that virus of the Government Order has already been upheld by Full Bench of this court in the case of Ram Kumar and others vs. State of U.P. and others, [(2005) 3 UPPLBEC 2487].

I have considered the argument advanced by learned counsel for the parties and perused the records.

All the grounds raised challenging the virus of the Government Order dated 17.10.1995 have been considered by the Full Bench in the case of Ram Kumar (Supra) and have been repelled and the validity of the said Government Order has been upheld. As such there is hardly any occasion for me to consider the said grounds again as the issues stand concluded by the aforesaid Full Bench decision.

It has next been contended on behalf of the petitioner that since the Full Bench had not considered the question of revenue which could be earned by way of open auction as such it requires reconsideration. The argument is totally misconceived.

The point has been considered by the Full Bench in detail and has been repelled on the ground that mere getting more revenue by public auction is not only the object for letting out the fishing rights. The objective is to provide livelihood to fishermen and other similar communities and also to give preference to the cooperative societies of such fishermen so that they may organize themselves and carry on their traditional vocation for the benefit of large part of weaker section of the society. It may be relevant to quote paragraph 23 & 24 of the Full Bench decision where the point in issue has been dealt with :

"23. From the above pronouncements made by the Apex Court, it is well settled that restrictions imposed to give effect to the constitutional goals as laid down in Directive Principles of State Policy are restrictions with intention to give certain benefits to weaker section of the society which are reasonable restrictions which does not infringe any right of individual citizen under Article 19(1)(g). The rights under Article 19(1)(g) are not absolute rights. As noted above, every individual has also right of consideration but according to preference laid down in the Government Orders issued under Section 126 of the 1950 Act. The preferences have been provided in the scheme of the Government with object of providing livelihood to fishermen and fishermen cooperative societies. The view of the Division Bench in Panchoo's case (supra) and other cases that unless fishing right is not settled by auction it will violate Article 19(1)(g) is not correct. The settlement of fishing right by auction will necessarily be in favour of a person giving highest bid. The big contractors and moneyed persons will steal a march over poor fishermen and other poor people of the village who are unable to organize themselves and the result would be that a sizeable section of fishermen and other communities will be deprived of their livelihood. To stop the settlement from going into the hand of big contractors and middlemen, the scheme was enforced by the State Government. The scheme has rational nexus with the object sought to be achieved and the persons for whose benefits the scheme has been framed definitely falls in a separate class having intelligible differentia. The settlement of fishing right in ponds and tanks by public auction cannot be held to serve the purpose and object nor the same can carry forward the goals as laid down in the Directive Principles of State Policy. Mere getting more revenue by public auction is not only object for letting out the fishing right. The objective as displayed from the directions of the State Government under Section 126 of 1950 Act is to provide livelihood to fishermen and other similar communities and also to give preference to the cooperative societies of such fishermen so that they may organize themselves and carry on their traditional vocation for the benefit of large part of weaker section of the society.

24. We are, thus, of the clear opinion that the directions issued by the State Government under Section 126 of 1950 Act read with Rule 115-A of 1952 Rules, as noted above, does not violate rights of any person under Article 19(1)(g) and Article 14 of the Constitution of India and the view expressed by the Division Bench in Panchoo's case (supra) and Abdul Gaffar's case (supra) in so far as they hold the settlement of fishing right only by way of public auction does not lay down the correct law. As noted above, the view in the aforesaid judgments as well as the view expressed in Ajai Sonkar's case (supra) and in Gram Panchayat Kanta's case (supra) that the renewal of lease is not permissible is absolutely correct and the same view has found favour with the Full Bench judgement of this Court in Feru's case (supra)."

The Government Order dated 17.10.1995 clearly provides that a registered co-operative society of the village will have preferential rights and it is only in the case where such a society is not available or interested then only the lease could be made in favour of the society operating at the level of Naya Panchayat and thereafter, in favour of the society operating at the block level and district level. The society of contesting respondent no.5 having been given preferential rights under the Government Order, the settlement made in favour of the petitioner's society is clearly in violation of the said Government Order and has rightly been cancelled. In so far as the argument advanced on behalf of the petitioner that the settlement in favour of respondent no.5 has been made in haste by the authorities during the period when the revision was lying dismissed in default, it is correct that the settlement has been made in haste and normally the authorities ought to have waited for a reasonable period before proceeding to make fresh settlement. However, in the facts and circumstances of the present case, the action of the authorities cannot constitute a good ground for setting aside the settlement made in favour of respondent no.5 at the behest of the petitioner since the petitioner does not stand any chance of settlement in its favour in the presence of respondent no.5 society which stands higher in preference by virtue of Government Order of 1995.

In view of the aforesaid discussions, there is hardly any scope for interference in the impugned order. The petition accordingly, fails and is dismissed.

Lastly, it was submitted that in pursuance of the settlement made in favour of respondent no.5, certain amount has been deposited by the petitioner which is liable to be refunded. Petitioner is given liberty to move a proper application in this regard before respondent no.3 within a period of three weeks from today. In case such an application is made and if it is found that any amount has been deposited by the petitioner the same shall be liable to be refunded within a further period of three weeks.

Dt.15.11.2007

nd.


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