Prakash Krishna, J. - (1.) These two writ petitions have been filed questioning the legality and validity of the order dated 12th of November, 2009 passed by the District Magistrate/Collector, Ghazipur whereby the settlement of fishery rights in pursuance of auction dated 17th of May, 2008 which was approved by the Sub Divisional Magistrate, Mohammdabad, District Ghazipur by the order dated 2nd of June, 2008 in favour of Vashishtha Bind (petitioner of the writ petition no.66536 of 2009) has been cancelled. It has been further held that Vijay Shanker (petitioner in writ petition No.7329 of 2010) is not entitled to participate in auction of fishery rights. Being aggrieved by the said portion of the order the connected writ petition No.7329 of 2010 has been filed by Vijay Shanker.
(2.) The dispute relates to pond No.73 area 0.486 hectare which belongs to Gaon Sabha. On 3.6.2006 a lease of fishery right was given in favour of Vijay Shanker for a period of ten years at a rate of Rs. 5450/- annually. One Kailash Bind son of Kohali lodged a complaint against the said auction on the ground that the said lease of fishery rights could not have been granted in favour of Vijay Shanker as he does not belong to fishermen community. The lease granted in favour of Vijay Shanker was cancelled, though according to him without giving any opportunity of hearing. A fresh lease was executed on 28th of March, 2008, according to Vijay Shanker, without any proper advertisement etc.. Challenging the allotment of fishery rights in favour of Vashishtha Bind a writ petition No.29507 of 2008 was filed by Vijay Shanker. In the said writ petition an interim order dated 6th of November, 2008 staying the operation of cancellation of the lease of petitioner of that writ petition was passed. The said order was challenged unsuccessfully in Special Appeal No.1777 of 2008. The writ petition came up for consideration before this Court. This Court by a judgment and order dated 21.7.2009 remanded the matter back to the District Magistrate, Ghazipur by providing that he shall decide the matter, after giving an opportunity of hearing, by a speaking and reasoned order in accordance with law. As a result thereof, the matter was heard and decided by the District Magistrate by the impugned order. As noted herein above, it has been found by the District Magistrate, Ghazipur that Vijay Shanker Yadav does not belong to fishermen community and as such is not entitled to participate in the auction of fishery rights in view of the government order dated 17th of October, 1995. The said government order provides a preference to the persons of fishermen community. Members of fishermen community being available in the Gaon Sabha in question, it was held that only the persons of that community could participate in the settlement of fishery rights. Being aggrieved by the said portion of the order, Vijay Shanker has filed writ petition No.7329 of 2010. It has also been held that before settling the fishery rights in favour of Vashishtha Bind, proper Munadi was not done in the village and therefore the lease of fishery rights granted in pursuance of the auction dated 17.5.2008 as approved by the Sub Divisional Magistrate on 2.6.2008 is liable to be cancelled and has been cancelled. Writ Petition No. 66536 of 2009: Vashishtha Bind v. State of U.P. and others:
(3.) Heard Sri R.C. Singh, learned counsel for the petitioner and Sri Ajay Bhanot alongwith MS. Swati Agarwal for contesting respondents and the learned standing counsel for Gaon Sabha. The learned counsel for the petitioner submits that the only ground on which the fishery rights granted to the petitioner has been cancelled is that before its settlement, proper Munadi was not done in the village. In other words, the intended auction was not published in the newspaper. He submits that the said finding recorded in the impugned order is factually incorrect. However, he could not produce copy of any newspaper to show that Munadi was done. The government order dated 17th of October, 1995 lays down procedure for auction of fishery rights. It has carved out a distinction in respect of the ponds having an area less than two hectares and the other ponds. So far as the ponds having the area less than two hectares are concerned, it provides that the pond shall be allotted to fishermen community i.e. Machhua, Kewat, Nishad, Mallah, Bind, Dhivar, Dhimar, Kashyap, Batham, Raikwad, Manjhi, Goriya ( Kahar) and Turahi or Turhi etc.. The area of the pond in question being less than two hectares obviously, only the members of fishermen community of the Gaon Sabha can participate in such auction. It may be noted that the District Magistrate in the impugned order has taken a note of the fact that two persons of the fishermen community were produced as witnesses but they did not express their willingness to take the pond on lease for fishing purposes but they supported ineligible person of Yadav community. No member of fishermen community has come forward to take the pond on lease for fishing purposes. The pond was settled in favour of the petitioner way back on 2nd of June, 2008 for a sum of Rs. 5,600/- per year. This Court in its order dated 7th of December, 2009 has noticed that the petitioner's counsel states that the petitioner is ready to take lease of pond in dispute for Rs. 10,000/- per year (total Rupees One Lakh for ten years). It may be noted that the said pond was auctioned in favour of Vijay Shanker for a sum of Rs. 5,450/- per year and was reauctioned in favour of the present petitioner for a sum of Rs. 5,600/-. No other person of fishermen community has come forward by raising any grievance or offering any higher amount. Resultantly, no useful purpose is going to be served by reauctioning the pond in question on the peculiar facts of the present case provided the petitioner (Vashishtha Bind) continues to pay the lease rent at the rate of Rs. 10,000/- per year. If the petitioner is not ready to take the lease of pond for Rs. 10,000/- per year or fails to make the payment accordingly, only then, it shall be open to the authorities concerned to reauction the pond in question. In other words, the pond in question is deemed to have been settled in favour of the petitioner for Rs. 10,000/- per year. By way of clarification it may be added that the petitioner will also be liable to pay the enhanced rent w.e.f. 8th of February, 2008. The difference of the amount, if any, outstanding shall be deposited by the petitioner within a period of one month.;