SIBGHAT ULLAH KHAN, J. - (1.) HEARD Sri Mohan Singh, learned counsel for petitioner, Sri Yogendra Nath Yadav, learned counsel for Gaon Sabha, respondent No.5 and learned standing counsel for respondents No.1 to 4. Even though the case was taken up in the revised list, Sri D.P. Singh, learned counsel for respondent No.6, Mohd. Shakir Khan did not appear. Orders dated 05.09.2013 passed on the writ petition and dated 25.11.2013 passed on the order sheet are quoted below: "05.09.2013: Petitioner's allegation is that he deposited Rs.13150/ - before Pradhan for being kept in Gaon Fund.? The petitioner must file supplementary affidavit stating therein that on what date, the amount was deposited by Pradhan in the said fund.? Learned standing counsel is also directed to ask the Tehsildar concerned to verify from Pradhan regarding genuineness of the receipt, photostat copy of which is Annexure -6 to the writ petition and Tehsildar shall further inquire that when the amount of Rs.13150/ - was deposited by the Pradhan in the Gaon Sabha bank account. List on 19.09.2013 showing the name of Sri Yogendra Nath Yadav also as the learned counsel for respondent Gaon Sabha. It is very unfortunate that the case has been taken up in the revised list but Sri D.P. Singh, learned counsel for respondent No.6 is not present.? If on the next date learned counsel for respondent No.6 does not appear, it would be presumed that respondent No.6 is not interested in defending the fisheries lease granted to him. 2511.2013: List revised. Shri D.P. Singh, learned counsel for the respondent no. 6 is not present. He was also not present on 05.09.2013 as noted in the order of the said date. Heard Shri Mohan Singh learned counsel for the petitioner, Shri Yogendra Nath Yadav, learned counsel for Gaon Sabha respondent has also addressed the Court. Learned counsel for the petitioner states that he has get ready with him a draft of Rs. 26,800/ - and photo copy of the same has been annexed with the rejoinder affidavit. Learned counsel for the petitioner states that it is total rent up till 19.02.2014 at the rate of Rs. 10,000/ - per Hectare per year. Order reserved. List for delivery of order on 02.12.2013."
(2.) MATTER relates to grant of fisheries lease in respect of pond comprised in plot No.71 -M, area 0.670 hectares situate in village Salempur Pargana Shahar Shumali Tehsil Shahbad, District Hardoi. Pursuant to the general directions issued in Ram Kumar Vs. State, 2009 (107) RD 557 to the effect that those fisheries pattas which had been allotted for less than Rs.10,000/ - per hectare per year should be cancelled unless the lessee agrees to pay the rent at the said rate, petitioner's patta was cancelled by Deputy D.M. Shahabad, District Hardoi through order dated 23.06.2011, copy of which is Annexure -2 to the writ petition. In the said order, it is mentioned that notice had been issued to the petitioner on 27.07.2010 and pursuant thereto petitioner filed application and affidavit on 30.04.2011, however as the lessee/ petitioner had not deposited the balance amount, hence patta was cancelled and it was directed that the amount of Rs.13150/ - should be recovered from him like arrears of land revenue. Thereafter, patta was granted to opposite party No.6, Mohd. Shakir Khan through order dated 02.09.2011. Against order dated 23.06.2011 petitioner filed Revision No.66 of 2011 -12, Ramanand Vs. Collector, Hardoi and others. Commissioner, Lucknow Division, Lucknow dismissed the revision on 10.12.2012, hence this writ petition. Petitioner contended that on 28.08.2010 pursuant to the notice given by the Deputy D.M. he had deposited the requisite amount of Rs.13150/ -, hence his patta could not be cancelled. Counter affidavit of Tehsildar has been filed. It is mentioned in para -3(4) that petitioner had filed an application and affidavit on 30.04.2011 before D.M. to the effect that he had deposited Rs.13150/ -, however he was resigning as he was not getting proper benefit from the pond. There is no mention that the said resignation was ever accepted. However, in para -9 of the counter affidavit by Tehsildar, it has been stated that the amount of Rs.13150/ - had been deposited by the petitioner in the account opened for developmental work in Aryavart Gramin Bank Branch Todarpur on 28.08.2010 and not in Gram Sahba fund. During arguments, learned counsel for petitioner stated that developmental work account is operated by the Pradhan and there is no check thereupon, hence Pradhan illegally got the said amount deposited in the said account. For this petitioner cannot be faulted. The fault is of the Gram Pradhan, hence action must be taken against him.
(3.) THE fact that petitioner had deposited the said amount is admitted in para -9 of the counter affidavit. Accordingly, impugned orders cannot be sustained. They are, therefore, quashed. Petitioner shall be permitted to operate the lease uptil 02.02.2018 provided that he pays rent/ lagan at the rate of Rs.6700/ - per year. The draft of Rs.26,800/ - as mentioned in the order dated 25.11.2013 (supra) shall be deposited by the petitioner before the Collector within two weeks from today failing which this order shall stand automatically recalled and writ petition shall stand dismissed. Before 19.02.2014 requisite amount of Rs.6700/ - for the next year should be deposited in the same manner. For every year uptil 02.02.2018, amount of Rs.6700/ - shall be deposited in advance failing which petitioner shall be evicted from the pond in dispute. However, in case petitioner does not deposit the draft within the aforesaid time, then respondent No.6 shall be handed over the possession of the pond in dispute otherwise petitioner may be permitted to operate the same and respondent No.6 shall not interfere in that right of the petitioner. Accordingly, writ petition is allowed as above.;