7/ ® waL’ IN THE HIGH COURT OF CHHATTISGARH‘ JUDICATURE AT BILASPUR (C.G.) wwé) No. 957% /2009“w Vidyashankar YadaV, S/o- Shri Suresh Yadav, President, Jai Bhawani Machhuwa Sahkari Samiti Maryadit, Aged about 32 years, R/o- Gram Panchayat-Bartori, Tehsil-Bilha, Distt. Bilaspur, Chhattisgarh. PETITIONER VERSUS 1. (Collector/Additional Collector, Bilaspur, Distt. Bilaspur, Chhattisgarh. 2. Gram Panchayat-Bartori, Through-Sarpanch/Secretary, Gram Panchayat-Bartori, Tehsil-Bilha, Distt. Bilaspur, Chhattisgarh. 3. President, Mahamaya Machhuwa Sahkari Samiti Maryadit, Gram Panehayat—Bartori, Tehsil Bilha, stt‘ Bilaspur Chhattisgarh. RESPONDENTS g T PETITION UNDER ARTICLE 226/227 OF T CONSTITUTION OF INDIA ”Q / a I HE / M HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench: Hon’ble Shri Manindra Mohan Shrivastava, J. W. P.(C)NO.976I2009 -, Shri Pankaj Shrivastava, counsel for the petitioner. " Shri Suryakant Mishra, Panel Lawyer for the State/respondent No.1. Shri A. S. Kachhawaha, counsel for respondent No.2. Shri Vivek Sharma, counsel for respondent No.3. ORAL ORDER (Passed on 10-03-2011) This petition is directed against the order dated 16-01-2009 (Annexure P- 1) passed by the revisional authority/respondent’No.1 in Revision Case No.206/A—89(9)/2007-08, by which, the revisional authority has allowed the revision preferred by the respondents No.2 & 3 and has reversed the order of the Sub Divisional Officer (Revenue) passed on 30—06-2008(Annexure P-6). 2. The petitioner and respondent No.3 had applied for grant of lease for fishing in the government pond “Bandhwa Talab". The Gram Panchayat, Bartori passed a resolution on 02—03-2007 resolving to grant lease in favour of respondent No.3, which was/challenged by filing an appeal before the Sub Divisional Officer. Vide order dated '30-06—2008 (AnnexureP-B), the Sub Divisional Officer allowed the appeal and set aside the resolution of the Gram Panchayat. Aggrieved by the order passed in appeal, the respondents No.2 and 3 preferred revision before the Additional Collector. The Additional Collector vide its order dated 16—01-2009 allowed the revision, against which, this petition has ‘i 1 been filed. Petitioner Vidyashankar Yadav Versus Respondents Collector/Additional Collector, Bilaspur and others of (Writ Petition Present: - Article 226/227 of the India) 3. Learned counsel for the petitioner submitted that the Collector allowed the revision merely on the ground that the petitioner-society has been allotted 89.70 Hectares of “Podi Guma Jalashay" as referred to in_ order dated 12-05-2008 in Revenue Case No.41-A-89(23)/O7-08 and that the provision contained in clause I 3.3 of the policy does not apply in the case of the petitioner as the area of Operation of the petitioner is confined to “Podi Guma Jalashay" as per registration. On that ground, the revisional authority came to the conclusion that many as five members of the family of the respondent-society were Sarpanch as well as Panchas. He submits that earlier on this very ground, the resolution passed by the Gram Panchayat was set aside, but thereafter, the same illegality was repeated. Learned counsel forthe petitioner next contended that the entire proceedings for grant of lease were hatched in conspiracy to award lease to respondent No.3, because Gram Panchayat did not initiate proceedings for grant of lease, even though the guideline required the procedure to becompleted on 15th of June of the year and no sooner, the respondent No.3 society was registered on 11—09-2006, or) the very next day, the Gram Panchayat invited , application for grant of lease which clearly shows that the Panchas and Sarpanch only wanted to extend undue benefit. Learned counsel for the petitioner further submitted that the area of operation'of the pond has been prescribed as 8 Kilometer from the headquarter of the society under the policy and further that the finding by the Additional Collector that in the event of grant of lease in the present case, the total area would exceed permissible limit is perverse, because according to the respondent-Gram Panchayat itself, the area of "Podi Guma 103 -$’— Jalashay" is 73.50 Hectare and not 89.70 Hectare as recorded by the Additional Collector. 4. On the other hand, learned counsel for the respondent No.2 submits that the proceeding of Panchayat was conducted in accordance with the provisions of law. He submits that at the time when the resolution Was passed, the relevant members did not participate and abstained from meeting. He submits that remaining 15 members unanimously resolved to award lease in favour of the respondent No.3. He further contended that the petitioner was not found entitled 47 because it was found that as per registration, area of the petitioner-society was confined to “Podi Guma Jalashay" only and that the petitioner had already been granted lease of “Podi Guma Jalashay". In respect of other allegations, learned counsel for the respondent No.2 submitted that merely because there was proximity between the date on which the applications were invited and registration of respondent No.3 took place, the resolution cannot be termed as illegal, if it othen/vise does not violate any of the provisions of law. His further submission is that the petitioner has failed to demonstrate by placing any material on record to prove that his area of operation is beyond “Podi Guma Jalashay”. 5. Learned counsel for respondent No.3 submitted that the petitioner is not entitled to preferential treatment because the petitioner’s area of operation as per the registration has been conhned to :‘Podi Guma Jalashay” only. He submits that / in the absence of any claim of preferential treatment, the resolution of Gram Panchayat to grant lease in favour of the respondent No.3 on the considerations that the petitioner has limited area of operation and is confined to “Podi Guma Jalashay”, does not suffer from any illegality. ,x M ,4- 6. A perusal of the resolution of the Gram Panchayat, which has been placed on record as Annexure P-5 and Annexure R-2/1 along with the return filed by respondent No.2 shows that in the Sarpanch-Shri Ramnath Yadav and Panchas- Ramdhuni Yadav, Smt. Shashi Kaushik and Smt. Laxmi Kaushik did not participate in the proceedings of Gram Panchayat and abstained from meeting. It is not the case of the petitioner that any of the Panchas, who participated in the meeting, in which resolution was passed, was related to the petitioner so as to render the proceedings illegal under the provisions of the Act or rules made thereunder. 7. The claim of the petitioner is founded on the provision contained in clause 3.3 of the policy (Annexure P-7). According to clause 3.3 of the policy, in case more than one application are received, the lease shall be granted to the society which is oldest. This is also stated in clause 2.4 of the policy that the oldest society would be entitled to preferential treatment. However, under clause 3.3 there is a rider, which states that the preferential treatment of being an oldest society would not apply, if the reservoir is outside the area of operation of the society. The resolution of the Gram Panchayat shows that the main operative reason for not granting lease in favour of the petitioner was that the petitioner society has been registered for “Podi Guma Jalashay" and the petitioner has been granted lease of “Podi Guma Jalashay“. The revisional authority has also stated that the area of operation of the petitioner—society is registered as “Podi / Guma Jalashay”, and therefore, clause 3.3 ofthe policy will apply in the case. 8. In the'writ petition, the petitioner has not specifically dealt with these two aspects of the matter. The petitioner has neither placed on record the order dated 12—O5~2008 referred to by the Additional Collector in its order dated 16-01- 2009 nor has placed on record the documents relating to registration of the petitioner-society and its area of operation. owever, in respect of these two H aspects, i find that the respondent-Gram Panchayat itself has stated in its return that the area of Podi Guma Jaiashay is 73.50 Hectare. Moreover, the petitioner has aiso brought to the notice of the Courtthe provision contained in the clause 10 of the Policy (Annexure P-7), which states that the normally the area of operation of fisheries society would be 8 Kilometers. Therefore, to my mind, the matter requires appropriate consideration after perusal of aforesaid documents available on record on following two aspects:- 1. What is the exact area of “Podi Guma Jalashay", which has already been allotted to the petitioner? Whether in the registration of the petitioner-society, its area of operation is confined to “Podi Guma Jalashay" or not? Sd/- Tumane As other issues have already been considered by this Court, it would not be open for the Additional Collector to reconsider any other ground in the matter. The order passed by the Additional Collector on 16-01-2009 (Annexure P-1) is set aside and the matter is remanded to the Additional Collector to reconsider the matter on specific aspects as stated above and take fresh decision on the revision filed by the respondents No.2 & 3. 9. in view of foregoing, the petition is allowed to the extent indicated above. No orders as to cost. i Manindra Mohan Shrivastavé‘ Judge /