Sudhir Narain - (1.) THE present writ petition is directed against the order cased 8-2- 1991 passed by the Board of Revenue.
(2.) BRIEFLY stated the facts are that plot Nos. 39, 55, 78, 83, 95. and 239 situate in Village Karaute Tappa Rajdhani Pargana Haveli, Tahsil Sadar District Gorakhpur is the property of the Gaon Sabha. There is a pond in these plots which is granted for fisheries, Gaon Sabha settled fisheries rights the said pond In favour of respondeat No. 4 for a period between 23-3-1978 to 22-3-1988 by passing resolution. The Gaon Sabha does not appear to have taken steps either for grant of fisheries rights or for extension of the period of the lease in favour of respondent No. 4 or any other person before 22-3-1988. The respondent No. 4 in the month of February, 1988 submitted an application before the Sub-Divisional Officer, Sadar district Gorakhpur for extension of the period of fisheries rights. The Sub-Divisional Officer called for a [report from the Tahsildar concerned The Tahsildar directed the Supervisor Kanungo to make enquiry and submit a report, The Supervisor Kanungo submitted a report on 21-3-1988 to the Sub-Divisional Officer and the Tahsildar, Sadar Gorakhpur stating that during the period of the grant of the Patta, the conduct of respondent No. 4 was proper. He had been depositing the premium within time and by caste he is a fisherman and fishing is the only source of his livelihood and he was the only proper person in whose favour the fisheries rights can be granted. He, further indicated that respondent No. 4 was paying rent at the rate of Rs. 240/- per annum and now he was prepared to pay Rs. 2264/- per annum. He recommended to the Sub-Divisional Officer to extend the period of Patta in accordance with clause 60 (2) (kha) of the Gaon Samaj Manual. He further Indicated that there was no other person who can claim better preference as against the respondent No 4. The said report was approved by the Tahsildar and papers were placed before the Sub-Divisional Officer who also approved the report on 23-3-1988. The Patta was executed in favour of respondent No. 4 on 13-6-1988. The petitioner aggrieved against the order dated 23-3-1988 filed revision before the Commissioner, Gorakhpur Division, Gorakhpur. The Commissioner made a reference to the Board of Revenue recommending that the revision be allowed and the order of the Sub-Divisional Officer dated 23-2- 1988 by which he approved the grant of the fisheries rights in favour of respondent No. 4 should be set aside. He took the view that the fisheries rights could be settled only when the auction takes place The Board of Revenue rejected the reference and dismissed the revision by order dated 8-2-1991. taking the view that the revision against the order granting approval of fisheries rights in favour of a person was not maintainable. The petitioner has challenged this order. I have heard the learned counsel for the petitioner and the learned counsel for the respondent No. 4 at length.
(3.) THE first submission of the learned counsel for the petitioner is that the view of the Board of Revenue that the revision was not maintainable, is erroneous in law. This Court in Civil Misc. Writ Petition No. 14861 of 1991 Moin Uddin and others v. THE Board of Revenue and others has held that a revision is not maintainable against an order granting fisheries rights in favour of a person in a pond or tank vested in the Gaon Sabha In view of this decision, the submission of the learned counsel for the petitioner is not tenable. The next submission of the learned counsel for the petitioner is that the Land Management Committee was entitled to settle fisheries rights and if it failed to exercise his right only then the Sub-Divisional Officer concerned could have taken steps for granting of fishing rights in the pond in question. He relied upon the G. O. dated 6-7-1987 issued by the State Government under Section 126 of UPZA and LR Act The relevant part of para 60 (2) (Kha) provides that in case the Land Management Committee is unable to grant Batta or the Sub-Divisional Officer is of the opinion that it is expedient to do so, he may grant Patta without consulting the Land Management Committee of the Village. It was urged that before the Patta was executed tin favour of the respondent No 4, the Land Management Committee was not consulted and as such the grant of Patta by the Sub-Divisional Officer concerned in favour of the respondent No. 4 was illegal. There is nothing to indicate that the Land Management Committee took any steps for settlement of the fisheries rights or for extension of the Patta in favour of the respondent No. 4 Para 60 (2) (kha) provides that in case the conduct and behaviour of the lease holder during the period of the lease was proper, the fisheries rights may be settled in favour of such person and he may be given preference over others except as against those persons who have been mentioned in order of preference in that para There is no dispute that the petitioner was granted Patta earlier for 10 years and there was nothing to indicate that his conduct was not proper. He was, thus entitled for extension of the period of the lease. There was nothing to show that any person was entitled to any preference There was certain relevant feature which were placed before the Sub-Divisional Officer prior to the grant of approval for extension of the lease of fishing rights. The respondent No. 4 was paying rent at the rate of Rs. 240/- per annum between the period 1978 to 1982 and after the grant of fresh lease he was to pay sum of Rs. 2264/- per annum. The interest of the Gaon Sabha was sufficiently secured. There is nothing to show that any other person was prepared to offer higher amount than the respondent No. 4. In Gaon Sabha Tuja v. Sub-Divisional Officer 1992, A.L.J. 482, it was hell that the Sub-Divisional officer is authorised to settle Patta if he is of the opinion that it is expedient to do so and it was not incumbent upon him to consult the Land Management Committee or to accept its recommendation.;