Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 742 of 2010 (M/S) Matsya Jeevi Sahkari Samiti Ltd. Roorkee, Village and Post Nanhera Anantpur Tehsil Roorkee, District Haridwar through Its Secretary Shri Maniram Kashyap R/o Village and Post Nanhera Anantpur Tehsil Roorkee, District Haridwar. ……Petitioner Versus State and others. …….Respondents Mr. Siddhartha Singh, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for respondents No. 1 to 3. Mr. Sharad Sharma, Sr. Advocate assisted by Mr. Kovid Bhatt, counsel for respondents No. 5 to 8. Dated:- 14-01-2011 Hon’ble B.S.Verma, J. Heard learned counsel for the parties. By means of this petition, the petitioner has sought writ in the nature of certiorari quashing the impugned order dated 03.04.2010 (annexure-1 to the writ petition), whereby the lease was granted to respondents No. 5 to 8 individually. Brief facts of the case, as narrated in the writ petition are that petitioner is a co-operative Society, registered under the then U.P. Co-operative Societies Act, 1965 (now valid under Uttaranchal Co-operative Societies Act, 2003). As per provision of Section 129 of the Act, the petitioner society is engaged in Pisciculture/Fisheries work as per the Government Order. The petitioner society is of tehsil level, which includes every block (vikas khand) as per letter dated 04.05.1999, issued by Director, Fisheries. It is pleaded in para-5 of the writ petition that lease/patta was granted to the petitioner society after fulfillment 2 of all the formalities, as required under law. Time period was with effect from 08.03.2000 till 07.03.2010. It is further pleaded that the pond, situated in Khasra No. 192, has a huge area of more than 5 hectare. Prior to consolidation proceedings, pond in question was subdivided in five different numbers (minjumla numbers). The old khasra number of the pond was 192, which was sub-divided into 192/1, 192/7, 192/6, 192/4, and 192/5. But in the revenue record, khasra No. 192 was shown as a consolidated number, consisting of one pond fully covered with water but during the consolidation proceedings, the khasra number of the pond were changed to plots No. 382, 385, 388, 389 and 390 respectively, whereas the area of the pond remained the same as it was earlier. It is further stated that all the plot numbers are covered with the water and there is no demarcation and boundaries in between, therefore, ponds cannot be treated as a separate unit. After the expiry of the period of allotment i.e. 07.03.2010, the petitioner society, moved an application on 11.12.2009 (Annexure no. 7 to the writ petition), before respondent No. 2 with a prayer that since the total consolidated area of the pond is more than 5 hectares, it is to be allotted to the petitioner society as the petitioner society alone is entitled for its allotment as per Government Order dated 04.01.1994. Despite of the facts that the plot numbers are adjoining to each other and the pond in question is a single unit and petitioner had preferential right over the pond, it was allotted to respondents No. 5 to 8 individually. The impugned order has been passed by the 3 respondent No. 2, without application of mind and without proper advertisement and information. In the counter affidavit filed on behalf of respondents No. 5 to 8, in para-7, it has been stated that initially khasra No. 192, in consolidation proceedings were divided in 7 plot numbers i.e. 383, 384, which were reserve for abadi and khasra No. 385/1.7680 hectare, 388/1.0000 hectare, 389/0.2400 hectare, 390/0.40000 hectare, have been made from ‘Johad’ land, which is clear from the sajra. Copy of sajra has been annexed as annexure no. C.A. 1 to the counter affidavit. It is further stated in para-14 of the counter affidavit that as per G.O. dated 04.01.1994, it relates to the people of Machuwa Samuday and the petitioner’s society is of tehsil level. Therefore, they cannot take benefit of G.O. dated 04.01.1994. In the counter affidavit, filed on behalf of respondents No. 2 and 3, above mentioned averments, have been taken in para- 6, 7 and 10. In para-20 of the counter affidavit, it has been further stated that petitioner had an alternative remedy of appeal before the Commissioner in accordance with para 60(2) of the Gram Sabha Manual, therefore, on the ground of alternative remedy, the writ petition is liable to be dismissed. During the course of argument, learned Senior Advocate appearing for the respondent has raised a preliminary objection that the alternative remedy to file revision under U.P. Zamindari and Land Reforms Act, is available to the petitioner. Therefore, in view of the Full Bench judgment of the Allahabad High Court, reported in 2005(99) R.D. 823, Ram Kumar and others Vs. 4 State of U.P. and others. Relevant paras of said judgment are being reproduced as under:- “34. The question No. 5 as framed by learned Single Judge is as to whether the judgment of this Court in Man Singh and others Vs. Board of Revenue and others, which held that the Sub- Divisional Officer and Collector have jurisdiction to cancel the fishery lease and the order of Collector is revisable, requires reconsideration in view of sub-sections (6) and (7) of the section 122-C of 1950 Act. The learned Single Judge in Man Singh’s case (supra) took the view that Sub-Divisional Officer who grants a fishery lease has jurisdiction to recall his order if the said grant was obtained surreptitiously and fraudulently in breach of the provisions and fraudulently in breach of the provisions and directions contained in the Government order. Every administrative authority has jurisdiction to recall its order if it was obtained surreptitiously and fraudulently. We only clarify that the power to recall the grant by Sub-Divisional Officer of a fishery lease can only be exercised on accepted ground of recall, i.e., when it is obtained by fraud or misrepresentation. Apart from fraud or misrepresentation, the Sub-Divisional Officer can neither suo moto nor on the application of any interested person cancel the lease. According to the scheme of the directions under section 126 of 1950 Act itself Collector has been given power to cancel the lease. As per the scheme of the Government Order any aggrieved person can approach the Collector for canceling the lease. The question for consideration is as to whether the grant of lease by Sub-Divisional Officer under the directions of the State Government or an order of the Collector canceling the lease is 5 subject to revision by revisional jurisdiction of the revisional authority under the Act. The learned Single Judge of this Court in Matsya Jivi Sahkari Samiti, Semari Vs. Addl. Commissioner (Admin), Gorakhpur Division and others had occasion to consider as to whether order of Sub-Divisional Officer granting permission to fishery lease is revisable under sections 333 and 333-A of 1950 Act. The learned Single Judge held that revisional jurisdiction extended to any suit or proceeding decided by any Court subordinate to him. The learned Single Judge in the said case held that the grant of lease by Sub-Divisional Officer is proceeding within the meaning of Act and jurisdiction of Sub- Divisional Officer is subject to revisional jurisdiction under section 333 of 1950 Act. The proceeding by Sub-Divisional Officer is certainly a proceeding for grant of lease in favour of other persons. In Man Singh’s case (supra) the learned Single Judge took the view that order of cancellation passed by Collector is amenable to revisional jurisdiction under sections 333 and 333-A of 1950 Act. The learned Single Judge in Man Singh’s case (supra) also took the view that the order of Sub-Divisional Officer canceling or refusing to cancel the lease under the relevant Government orders although open to judicial review under Article 226 but is neither appelable nor revisable under 1950 Act. 35. The Collector when considers an application for cancellation of fishery lease, it decides a lis between parties and act as Revenue Court. The order passed by Collector canceling a fishery lease or refusing to cancel a fishery lease is, thus, clearly amenable to revisional jurisdiction as provided under 1950 Act. 1950 Act being a complete code, the remedy with regard to fishery 6 lease has to be first obtained under the four corners of the Act and Rules. Learned Single Judge has referred to section 122-C sub sections (6) and (7) which has no applicable in the present case. Section 122-C relates to allotment of land for housing site to member of scheduled caste, agricultural labour etc. The said provision is not attached. 36. The case of Dhulabhai decided by the Supreme Court has to be read in the light of subsequent decision in the case of Mafat Lal Vs. Union of India. The decision given in Man Singh’s case (supra) does not require any reconsideration. The question no. 5 is answered accordingly. ” I have perused para-34, 35 and 36 of the judgment of the Full Bench of Allahabad High Court in Man Singh’s (Supra) case. In Man Singh’s case, it has been held in para-10 that the administrative power enjoyed by the Assistant Collector Incharge of the Sub-Division to grant a lease under the G.O. aforesaid includes the administrative power to cancel the lease with due observance of the rules of natural justice. However, an order of the Sub-Divisional Officer canceling or refusing to cancel a lease under the G.O. aforesaid though open to judicial review by the High Court under Article 226 of the Constitution is neither revisable under the Z.A. Act. It is further held in para-12 that any such order of cancellation by the Collector, would of course, be revisable under the Z.A. Act. Full Bench of Allahabad High Court, after considering the judgment of Man Singh’s (Supra) case and other cases of Allahabad High Court, has categorically held in para-35 that revision is maintainable against the order passed by the 7 Collector. It has been specifically held in para-34 of said judgment as under:- “We only clarify that the power to recall the grant by Sub- Divisional Officer of a fishery lease can only be exercised on accepted ground of recall i.e. when it is obtained by fraud or misrepresentation. Apart from fraud or misrepresentation, the Sub-Divisional Officer can neither suo moto nor on the application of any interested person cancel the lease. According to the scheme of the Government order any aggrieved person can approach the Collector for canceling the lease”. It is further held in para-35 that an application for cancellation of fishery, it decides a lis between parties and act as Revenue Court and the order passed by Collector for canceling a fishery lease is ,thus, clearly amenable to revisional jurisdiction as provided under 1950 Act. 1950 Act being a complete code, the remedy with regard to fishery lease has to be first obtained under the four corners of the Act and Rules. For further reference relevant portion of para 12 in the case of Man Singh and others Vs. Board of Revenue of U.P. and others, reported in 1994 ALL.L.J. 902, is reproduced as under:- “Paragraph 60(2) (kha) (a) of the Manual lays down that Patta shall be given on annual rent for 10 years. The Collector has been given the power to renew the Patta in his discretion for another five years on payment of enhanced annual rent provided the conduct of the lessee in the past has been good. The Collector has also been expressly vested with the power to cancel the lease either suo motu or on receipt of information from any source if the lessee fails to carry out fish-breeding and make improvement in 8 the tank within three years. The power conferred upon the Collector to cancel the lease as contained in paragraph (60)(2) (kha) (1), in my opinion, is not exhaustive. Rather, it is illustrative and the Collector can cancel a lease not only in the exigencies contemplated by paragraph 60(2)(kha) (1) but also upon his satisfaction that it was unfair, irregular or illegal. It must not be forgotten that paragraph 60(2) (kha) (1) of the Manual are intended to provide an alternative to the procedure laid down under Rule 115S which is quite exhaustive containing a forum for resolution of disputes and cancellation of the lease as also a forum for appeal under clause (vi) of sub-rule (1) of Rule 115S. It could not have been intended by the Government, while issuing the G.O. dated 24th April 1990, to leave the controversy about validity of lease being adjudicated upon by the Civil Courts. The power conferred upon the Collector to cancel a lease under paragraph 60(2) (kha)(1) of the Manual has to be construed liberally. It is well settled that legislative inaccuracy and uncertainity is to be counter-balanced by judicial activism. Therefore, I am of the view that the legality and validity of a lease granted by the Sub-Divisional Officer under paragraph 60(2) (kha)(1) of the Manual can be challenged before the Collector and the Collector shall have the power to cancel the lease. Any such order of cancellation by the Collector, would of course, be revisable under the Z.A. Act in as much as the Collector while adjudicating upon the controversy as to the validity and legality of the lease, would be deemed to be acting as a court thereby attracting the provisions of Sections 333 and 333A of the Z.A. Act……………” 9 I am fortified in my views by the judgment of Full Bench of Allahabad High Court that an alternative remedy is available to the petitioner for cancellation of lease by filing an application before the Collector, which has been granted in violation of the Government Order. Learned counsel for the petitioner contended that since this is an admitted petition and pleadings have already been exchanged, therefore, in view of judgment rendered by Allahabad High Court in Modi Vanaspati Mfg. Co. Unit Modi Industries Ltd. Modi Nagar Vs. Prescribed Authority, Ghaziabad, reported in (1994) 3 UPLBEC 1796, in para-13 following the ratio of judgment in Chandrama Singh Vs. Managing Director, Co-operative Union, 1991 (2) U.P.L.B.E.C. pg. 898 (F.B.) and Shailendra Singh Vs. National Thermal Power Corporation and others, 1986, U.P.L.B.E.C. Pg. 691, it has been held that when the writ petition is admitted and pleadings between the parties have already been exchanged and an interim order is granted, in that event after lapse of sufficient time, the writ petition ought not to have been dismissed as not maintainable on the ground of alternative remedy. In the case in hand, the writ petition is admitted. Pleadings between the parties have already been exchanged and learned counsel for the parties have agreed to dispose of the petition at the admission stage itself. Apart from this, no factual dispute remains in view of the statement made by Tehsildar before this Court on 21.05.2010, while the interim order was passed by this Court on the ground that no public auction was made in the case at hand and Tehsildar informed that plots no. 390, 388, 389 and 385 are 10 adjoining to each other and submerged in the water. He further informed that the pond in question is in the shape of one unit. There are no separate ponds. Therefore, no useful purpose would be served to relegate the petition at this stage to avail an alternate remedy. In view of the Government Order dated 04.01.1994, which has been annexed as annexure no. 4 to the writ petition and also referred in the case of Ram Kumar Vs. State of U.P. (F.B.), reported in2005 (99) RD 823, Full Bench of Allahabad High Court has in para-19 of its judgment, mentioned as under:- “The Government orders provide for a preference in granting lease of fishery. With regard to tanks and ponds up to two hectares the category of preference is different from the ponds of tanks of more than two hectares. With regard to ponds and tanks up to two hectares first category of preference is the persons of same village belonging to Machhua, Kewat, Nishad, Mallah, Bind, Dheevar, Dhhmar, Kashyap, Vatham, Raikawar, Majhi, Godia, Kahar, Tureha or Turaha community. The preference proceed from Gaon Sabha to Nyaya Panchayat and thereafter to Block. With regard to ponds and tanks of more than two hectares the Co- operative Societies even of district level and State level are contemplated and individual of the same village/Nyaya Panchayat/Vikas Khand/ district is also included as last preference.” In the case at hand, Up-Zila Adhikari has granted the lease in favour of individual, treating the area of pond as less than 2 hectares while the pond exceeds the area of 2 hectares. All the plot numbers are submerged in the water and form a single unit, 11 as has been stated before this Court by Tehsildar, Roorkee, on 21.05.2010. Therefore, the lease granted in favour of respondents No. 5 to 8 is not in infirmity with the Government Order. So far as the second ground is concerned no public auction was made and the petitioner has also relied on few judgments of Allahabad High Court in which it is held that a public auction is necessary. Full Bench of Allahabad High Court in the case reported in 2005 (99) RD 823, Ram Kumar Vs. State of U.P., has elaborately discussed this issue. Relevant paras No. 27, 28 and 29 of said judgment are being reproduced below:- “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 judgment of this Court in Feru’s case (supra). However, it is relevant to note that the directions issued under section 126 of 1950 Act itself provides that settlement of fishing right shall be done with proper and extensive publicity so that all who are eligible to participate may be aware of such 12 proposed settlement and may participate. It is true that without information or knowledge of all concerned who are eligible to participate the settlement will be arbitrary. The Division Bench of this Court in Gaon Sabha, Tuja Vs. The Sub-Divisional Officers and others, had noted the proviso to Rule 115-S and observed that public auction for settlement of fishery right is not mandatory. The Division Bench, however, in the said judgment has observed that although there is no requirement to the Sub-Divisional Officer to settle the fishery lease by auction but the said procedure of auction can be exercised by the Sub-Divisional Officer when there are more than one person claiming entitlement for grant of lease. Following was laid down by the above Division Bench in paragraph 5:- 5……….While laying down order of preference for the grant of Patta it has been provided that if there are more than one person of one group the Patta shall be granted by auction in favour of the highest bidder. The normal rule laid down by aforesaid Government order is the grant of Patta by Sub- Divisional Officer without any public auction, unless the case falls within the last part of clause-2 which has provided for public auction, if there are more than one person of one group. It may, however, be observed that though there is no statutory requirement requiring the Sub-Divisional Officer to settle the land by auction, there is no prohibition either and if he is of the opinion that in view of the facts and circumstances of a particular case it will be expedient to grant the Patta of the fisheries right by means of public auction, he may do so. But if he has settled the fisheries 13 by means of other than the auction his order cannot be set aside on the ground that he has not settled it by holding public auction. The settlement of fishery according to the directions under section 126 of 1950 Act is settlement of property vested in the Gaon Sabha which should be done in a prescribed manner giving opportunity to all eligible persons to participate. The Revenue Officers, who are entrusted with duty, shall ensure proper advertisement of the date of settlement so that all persons who are eligible to participate have sufficient notice of the proposed settlement. The Government order itself contemplate “wide publicity”. The Sub-Divisional Officer himself should see that wide publicity is made. Now a days newspapers having wide circulation in the area is surest mode to publish a proposed settlement. As a general rule the Sub-Divisional Officer should publice in a newspaper having wide circulation of the settlement of fishing right to enable all concerned to participate. As observed above, in the event there are more than one person in one particular category of preference, the Sub-Divisional Officer is not prohibited to award the said fishing right by inviting bids by tender of auction.” In view of the judgment of Allahabad High Court (Full Bench) and after going through Section 126 of Z.A. Act, 1950, it is clear that settlement of fishing right shall be done with proper and extensive publicity so that all who are eligible to participate may be aware of such proposed settlement and may participate and without information or knowledge of all concerned who are eligible to participate the settlement will be arbitrary. In the present case, the said fact is also not disputed. Up-Zila Adhikari 14 neither did call for any meeting nor any publicity was made and granted the lease to individual persons while the area of the pond in question is more than two hectares and it cannot be leased out to an individual person of Machuwa community in view of the Government Order. Therefore, in view of the discussion made above, the writ petition deserves to be allowed. The same is allowed. Lease granted in favour of respondents No. 5 to 8, vide order dated 03.04.2010, is set aside. However, it is made clear that the pond in question be leased out to the society after calling a meeting convened by Sub-Divisional Officer with proper publicity. (B.S.Verma, J.) 14-01-2011 S