Interest in fishery lease can be acquired through succession: Allahabad High Court

 AFR Court No. 40 Case : SPECIAL APPEAL DEFECTIVE No. 2421 Appellant : Sheetal Respondent : State Of U.P. And 5 Others Counsel for Appellant : Jamil Ahamad Azmi Mohd. Isa Khan Counsel for Respondent : C.S.C. Rameshwar Prasad Shukla Hon ble Manoj Misra J Hon ble Rohit Ranjan Agarwal J Delivered by Hon ble Manoj Misra J This intra court appeal arises from a judgment and order dated 02.07.2019 of a Single Judge in Writ C No.14609 of 2019 dismissing the writ petition of the appellant As per the report the limitation for filing the appeal was upto 02.08.2019 but the same has been presented in February 2021 with a delay condonation application Considering the explanation offered and the fact that in between there had been large scale restriction in movement due to COVID 19 pandemic we deem it appropriate to condone the delay in filing this appeal. Consequently the delay condonation application is allowed. The delay in filing the appeal is condoned Office shall assign a regular number to the appeal 4. We have heard the learned counsel for the appellant learned Standing Counsel for the respondents 1 to 4 and Sri Rameshwar Prasad Shukla for the respondent no.5 In brief the facts giving rise to this appeal are as follows: The husband of the sixth respondent in the year 2013 obtained a fishery lease for a period of 10 years with effect from 14.08.2013. On 18.12.2015 the sixth respondent was declared elected as a member of the Gram Panchayat concerned. On 25.04.2018 the husband of the sixth respondent died. As an interest in a fishery lease is inheritable the sixth respondent applied for substitution as a lessee in place of her late husband. When no action was taken on her application she filed Writ C No.425918 which was disposed off with a direction upon the Sub Divisional Magistrate Azamgarh to decide the application of the sixth respondent. Pursuant thereto by order dated 28.02.2019 the Sub Divisional Magistrate Sigari Azamgarh upon finding that the period of lease remains allowed the application and substituted the sixth respondent in place of her deceased husband. Questioning the order dated 28.02.2019 the appellant filed Writ C No.146019 by claiming that without the permission of the Collector as is necessary under Section 28 C of the U.P. Panchayat Raj Act 1947the sixth respondent who is member of Gram Panchayat concerned could not acquire interest in a village tank by way of lease etc. Negativing the above claim the learned Single Judge dismissed the writ petition of the appellant by declaring that Section 28 C of the Act would not apply to a case where the right devolves upon a person by operation of law such as in a case of succession. Aggrieved with the order of the learned Single Judge this appeal has been filed As the fate of the appeal would depend on the import of Section 28 C of the Act the same is extracted below: 28 C— “Members and officers not to acquire interest in contract etc. with Bhumi Prabandhak Samiti No member or office bearer of Gram or Bhumi Prabandhak Samiti shall otherwise than with the permission in writing of the Collector knowingly acquire or attempt to acquire or stipulate for or agree to receive or continue to have himself or through a partner or otherwise any share or interest in any licence lease sale exchange contract or employment with by or on behalf of the Samiti concerned Provided that a person shall not be deemed to acquire or attempt to acquire or continue to have or stipulate for or agree to receive any share or interest in any contract or employment by reason only of his a) having acquired any interest before he became a member or office bearer b) having a share in a joint stock company which makes the contract c) having a share or interest in the occasional sale through the Samiti concerned of an article in which he regularly trades upto a value not exceeding Rs. 50 in any one year 2) No court or other authority shall enforce at the instance of any person a claim based upon a transaction in contravention of the provisions of sub The contention of the learned counsel for the appellant is that the restriction placed by the provisions of Section 28 C would also cover a case of acquiring interest through succession and therefore without the permission of the Collector the sixth respondent could not have been substituted in place of her late husband as a lease holder of the fishery lease 9. We have given our thoughtful consideration to the contentions of the learned counsel for the appellant and have perused the provisions of Section 28 C of the Act carefully. It is well settled that Section 28 C has been inserted with an object to protect the property of Gram Panchayat so that persons who are in a position to influence settlement of interest in Gram Panchayat property do not utilise their position to gain unethical advantage for themselves. However what is important is that clauseof the proviso to sub sectionof Section 28 C saves those interests that were acquired by a person before he became a member or office bearer. When a person inherits the estate it is by operation of law the person steps into the shoes of his or her predecessor by devolution of interest which takes place immediately on the death of the predecessor though such devolution may be recognised later. Recognition of such devolution may be by way of mutation or substitution in the records but such mutation or substitution by itself does not create any right though it may amount to a recognition of the right. Thus where the right devolves upon a person by operation of law on occurrence of an event over which a person does not have control no occasion arises to seek for permission before such devolution. The legislature therefore to serve the legislative object of controlling acquisition of interest in Gram Panchayat property in its wisdom qualified the phrase “acquire or attempt to acquire any share or interest in any license lease sale exchange contract or employment with by or on behalf of the Samiti concerned” with the word “knowingly”. In P. Rama Natha Aiyar’s Treatise “Advanced Law Lexicon” it is provided that the primary meaning of the word “knowingly” is with “knowledge”. The treatise thereafter proceeds to notice various facets of the term “knowingly” as interpreted by courts in different contexts. One of them being the decision in Horn Vs. State Ind 445 N.E.2d 976 978 wherein it was held that “act is done “knowingly” or “purposely” if it is willed is the product of a conscious design intent or plan that it be done and is done with awareness of probable consequences. As succession takes place by operation of law on the death of the estate holder and death though is certain but the time of it cannot be controlled particularly when it occurs naturally the successor in the event of death simply steps into the shoes of the estate holder immediately on his death by operation of law and therefore no question of seeking prior permission to acquire interest arises. Accordingly by keeping in mind the legislative intent for inserting Section 28 C as also the import of clauseof the proviso to its sub sectionwe respectively agree with the view of the learned Single Judge that the provisions of Section 28 C of the U.P. Panchayat Raj Act 1947 will not place any restriction on acquisition of interest in a fishery lease by succession The appeal has no merit and is accordingly dismissed Order Date : 25.06.2021

Summary: Upon the death of the lessee, a fishery lease can be transferred to his legal heirs without seeking any prior permission and if any other law that contradicts such a nature is enacted, it will not place a restriction on this absolute nature of fishery lease. Hon’ble Justice Manoj Misra and Hon’ble Justice Ranjan Agarwal adjudged, “As succession takes place by operation of law on the death of the estate holder and death though is certain but the time of it cannot be controlled, particularly, when it occurs naturally, the successor in the event of death simply steps into the shoes of the estate holder immediately on his death, by operation of law and, therefore, no question of seeking prior permission to acquire interest arises” in Sheetal Vs. State of U.P and 5 Ors. [SPECIAL APPEAL DEFECTIVE No. – 240 of 2021] The brief facts of the case are, the husband of respondent no.6 obtained a fishery lease for a period of 10 years in 2013. Later in the year 2015, respondent No.6 was elected as the member of the gram panchayat. In 2018, the husband of respondent No.6 died. Respondent no.6 applied for substitution as a lessee in place of her husband for the fishery lease. In 2019, the sub divisional magistrate allowed such an application and the respondent No.6 was made the lessee. Questioning such an order, a writ was filed by the appellant on the grounds that the respondent no. 6 cannot be substituted as a lessee without following due process as under Section 28 C of the U.P. Panchayat Raj Act, 1947 which was dismissed. Aggrieved by this, the appellant filed an appeal before the high court. The learned judges after listening to both the counsels and reading the section 28C came to a conclusion that section 28C will not place any restriction on acquisition of interest in a fishery lease by succession. An analysis of section 28C revealed that such a clause was introduced to prevent misuse of power and unethical gains. Clause (a) of subsection (1) also said that any restrictions mentioned in that section would not be applicable to interests which were acquired by a member before he assumed office in the gram panchayat. It was also observed that the section used the word ‘knowingly’ which was interpreted by the court in Horn Vs. State Ind, 445 N.E.2d 976-978  as “act is done “knowingly” or “purposely” if it is willed, is the product of a conscious design, intent or plan that it be done, and is done with awareness of probable consequences.” Since succession takes place post the death of a person, there is no possible to predict the occurrence of this uncertain event.