ASHOK BHUSHAN,J. - (1.) THESE two connected writ petitions in which counter and rejoinder affidavits have been exchanged between the parties, have been heard together and with the consent of learned counsel for the parties are being finally decided. Writ petition No. 69625 of 2010 (hereinafter referred to as 'first writ petition') has been filed by the petitioner seeking quashing of the entire auction proceedings held on 25.6.2010 for settlement of fishing rights in Sarua Tal. A writ of mandamus also been sought for commanding the respondents to hold fresh auction for settlement of contract of fishing right. The second writ petition No. 62243 of 2011 (hereinafter referred to as 'second writ petition') has been filed by the petitioner challenging the order dated 14.10.2011, passed by the Additional District Magistrate directing the Tahsildar to effect recovery of Rs. 1,21,190/- in pursuance of the recovery certificate dated 8.2.2011. A prayer has also been made for quashing the letter dated 4.2.2011 sent by the Deputy Director Fisheries, Gorakhpur to District Magistrate, Gorakhpur for issuing recovery certificate for recovery of Rs. 1,44,000/- from the petitioner.
(2.) THE facts giving rise to first writ petition being writ petition No. 69625 of 2010, as emerged from pleadings of the parties are; the petitioner no. 1 is a registered cooperative society of fishermen under the U.P. Co-operative Societies Act, 1965 on 29.5.1973. The State Government issued various Government Orders laying down manner and procedure for grant of fishing right in ponds/reservoirs in the State. Ponds/Tals have been categorised in four categories. The Sarua Tal which has an area of 256 hectares is category-3 Tal. The State Government had issued various Government Orders including Government Order dated 8.3.2000 which laid down the manner of management of different categories of reservoirs/Tals under the Fisheries Department and Fishing Development Corporation. Paragraph 4 of the Government Order dated 8.3.2000 provided that right of management of pond be made through open auction and the first round auction would be held only amongst the registered Matsya Jivi Sahsakari Societies and in the event required amount is not received, then in second round along with registered cooperative societies, the contractors be allowed to participate in the auction. By Government Order dated 16.1.2006, the procedure laid down in paragraph 4 of the Government Order dated 8.3.2000 was amended and the manner of settlement as provided by the Government Order dated 16.1.2006 provides for five rounds of auction. In first round, the registered Co-operative Societies situated in geographical area of Tal of concerned Gaon Sabhas and concerned blocks will be permitted to participate along with self help group. In the second round along with societies mentioned in the first round, registered societies falling in geographical area of Tahsil and District Level be allowed to participate. In the third round, along with societies mentioned in first and second rounds, the divisional level registered societies be allowed participation and in fourth round, apart from the above, any societies registered in the State be allowed participation and in fifth round, in case reserved price is not received, the contractors shall also be allowed participation. In accordance with the Government Order dated 16.1.2006, the U.P. Matsya Jivi Sahakari Sangh Ltd. (hereinafter referred to as 'Sangh') issued an auction notice dated 7.6.2010 fixing 25.6.2010 for auction. The petitioner is a registered society situated in geographical area of village near Sarua Tal. In auction, the petitioner as well as another society namely; Shram Shramik Matsya Jivi Sahakari Sangh Ltd. Gopalpur which was also society situated in geographical area, deposited 10% amount i.e. 41000/- and participated in the auction. The respondent no. 5 who is a contractor along with another contractor namely; Jayas Ram also deposited the earnest money. In the auction held on 25.6.2010 along with the petitioner and another society namely; Shram Shramik, the auction Committee permitted the respondent no. 5 and another contractor Jayas Ram to submit their bid in the very first round. The minimum reserved price of Sarua Tal was fixed as Rs. 4,10,000/-. The petitioner gave bid of Rs. 4,12,000, Shram Shramik Sangh Ltd. offered bid of Rs. 4,11,000/- whereas the respondent no. 5 gave the bid of Rs. 4,14000 and Jaisram offered a bid of Rs. 4,15,000/- and thereafter ultimately bid of respondent no. 5 for an amount of Rs. 4,51,000/-was accepted. The petitioner immediately filed a complaint to the Managing Director of the Sangh stating therein that contract has been illegally awarded to the respondent no. 5 which is against the Rules. The petitioner being registered cooperative society was entitled for preference and the contract be granted to the petitioner. Subsequently, the petitioner made an application under Right to Information Act inquiring about the details of auction, its procedure and details of participants in the auction, which were replied on 4.9.2010. The petitioner thereafter filed the first writ petition praying for following reliefs: "i/- issue a writ, order or direction in the nature of writ of certiorari calling for the records of the case and quashing the entire auction proceedings allegedly held by the respondent authorities on 25.6.2010 in pursuance of Nilami Suchna dated7.6.2010. ii/- issue a writ, order or direction in the nature of writ of mandamus commanding the respondents to hold fresh auction for settlement of contract in respect of the Sarua Tal category-3."
(3.) THE facts giving rise to second writ petition as emerged from pleadings of the parties are; the petitioner society was granted contact of Sarua Tal in the year 1983-84 up to 30.6.1988 for an amount of Rs. 1,21,500/- per annum for five years. There being certain default in payment of the instalments, the contract was cancelled on 5.1.1988 after adjusting the security money, an amount of Rs. 1,44,000/- was held to be balance on the petitioner. A recovery certificate dated 14.3.1989 was sent by the Deputy Director, Fisheries Gorakhpur to Collector, Gorakhpur for recovery of an amount of Rs. 1,44,000/- from the petitioner. The Deputy Director, Fisheries Gorakhpur subsequently on 12.2.1996 wrote to the Director, Fisheries that society having deposited Rs. 22,810/- against the recovery, the balance amount of Rs. 1,21,190/- be waived of. The Deputy Director, Fisheries, Gorakhpur wrote that after cancellation of petitioner's contract fresh contract was granted from 4.11.1988 to 30.6.1993 for an amount of Rs. 88,000/- per annum. The amount of Rs. 88,000/- is much less than the amount of Rs. 1,21,500/- on which the petitioner was granted contract. The Deputy Director wrote that no financial loss had been caused to the Government as the contract of the petitioner had already been cancelled, security forfeited and the Tal has already been auctioned hence, there is no justification for any recovery from the petitioner. The Deputy Director also wrote to the Collector on 12.2.1996 requesting him not to proceed with the recovery in view of the recommendations made by the Deputy Director for waiving of the amount. After the recommendation of the Deputy Director dated 12.2.1996, no recovery was pursued against the petitioner. The Director, Fisheries, U.P. Lucknow addressed a letter dated 12.1.2011 to the Deputy Director, Fisheries Gorakhpur stating therein that the recommendation made by him for waiving of the amount of Rs. 1,21,190/- is not in accordance with law hence, Deputy Director should ensure realisation of the balance amount of Rs. 1,21,190/- with interest. After the order dated 12.1.2011 of the Director, the Deputy Director wrote to the Collector on 4.2.2011 to recover the amount. Consequently, the District Magistrate on 14.10.2011 wrote to the Tahsildar to effect the recovery. The second writ petition has been filed by the petitioner praying for the following reliefs: " A) issue a writ, order or direction in the nature of certiorari quash the impugned order dated 14.10.2011 passed by the respondent no. 5 and order dated 04.02.2011 passed by the respondent no. 3 (Annexure no. 1 and 2 respectively to the writ petition). B) issue a writ, order or direction in the nature of mandamus directing to the respondents not to recover amount of Rs. 1,21,190/- from the petitioner." ;