Sibghat Ullah Khan, J. - (1.) HEARD Sri R.N. Gupta, learned Counsel for the petitioner, Sri Manzar Ali Khan, learned Counsel for opposite party No. 2 and Sri H.P. Srivastava, learned additional CSC for opposite party No. 1. Through this writ petition settlement of 10 years fisheries lease in favour of respondent No. 2 Mast Jivi Sahkari Samiti Vikas Khand Gandhar Tahsil Saindila District Hardoi without any advertisement has been challenged. The lease was settled through order dated 12.7.2004 passed by opposite party No. 1 Deputy Collector Sandila. It was a patent order of three lines "approved as proposed". Gram Sabha had passed the resolution without issuing any advertisement which was approved by the Deputy Collector. It is shocking that 10 years fisheries lease of all the ponds situate in the village was settled with one society for a song. The allegation is that earlier Pradhan was in collusion with respondent No. 2. The total area of all the ponds is about 50 hectares and it has been let out at the rate of Rs. 400/ - per hectare per year. It is open loot of public property. In several authorities of this Court it has been held that fisheries lease cannot be settled except through auction after due advertisement. Full Bench Authority of this Court in Ram Kumar v. State,, 2005 (99) RD 823 also approved the said procedure. Preference is to be given to fishermen's societies. However, it does not mean that lease is to be settled with such society without advertisement. Property worth Rs. 5 lacs per year has been let out just for about Rs. 30,000/ - per year. In Babban v. State,, 2004 (97) RD 675 followed in several other authorities, it was held that fisheries lease could not be settled for less than Rs. 10,000/ - per hectare per year premium/rent. After discussing several other authorities it was held in Ram Kumar v. State,, 2009 (107) RD 557 (paras. 5 & 6) as follows: - - "In the judgment Satya Vrat Singh v. State, : 2006 (101) RD 245 I summarised the effect of the Full Bench. Wrongly interpreting the said Full Bench, Government had issued an order on 23.2.2006 mentioning that the Full Bench had held that State Government had got a right to settle the fisheries lease on the basis of priorities instead of public auction. I therefore directed that the said Government Order shall not be given effect to. Paragraphs No. 5, 6 & 11 of Satya Vrat Singh authority are quoted below: - - "5. In the aforesaid Full Bench authority in para. 29 it has clearly been held that fisheries lease shall be settled through auction after due advertisement in news paper. It has also been held in the said authority that no renewal must be granted. The Government Order dated 17.10.1995 dealing with manner of settlement of fisheries lease and preference for such settlement with certain castes/communities has been approved subject to these two exceptions. The said Government Order has been upheld by the Full Bench in respect of priorities to members belonging to such castes, who are traditionally carrying on the fisheries business. Para. 29 of Ram Kumar's Full Bench decision is quoted below: "29. The settlement of fishery according to the directions under section 126 of 1950 Act is settlement of property vested in the Gaon Sabha which should be done in a prescribed manner giving opportunity to all eligible persons to participate. The Revenue Officers, who are entrusted with duty, shall ensure proper advertisement of the date of settlement so that all persons who are eligible to participate have sufficient notice of the proposed settlement. The Government order itself contemplates "wide publicity". The Sub -Divisional Officer himself should see that wide publicity is made. Now a days newspapers having wide circulation in the area is surest mode to publish a proposed settlement. As a general rule the sub -Divisional Officer should publish in a newspaper having wide circulation of the settlement of fishing right to enable all concerned to participate. As observed above, in the event there are more than one person in one particular category of preference, the Sub -Divisional Officer is not prohibited to award the said fishing right by inviting bids by tender or auction." 6. However, if no person belonging to the preferential category as mentioned in the Government order dated 17.10.1995 is interested in taking the lease then the pond can not be left vacant. It will have to be given to any other person who is interested in taking the fisheries lease and is highest bidder in the open auction. According to the Full Bench even if in the preferential category more than one person are interested, then the lease shall be settled through auction. 11. Before parting with the case it is essential to notice the Government Order dated 23.2.2006, shown by the learned Standing Counsel. The said Government Order was issued after the aforesaid Full Bench decision of Ram Kumar. In the said Government Order it has been mentioned that Full Bench authority of Allahabad High Court in its judgment dated 29.9.2005 in Writ Petition of Ram Kumar v. State has held that State Government has got a right to settle the fisheries lease on the basis of priorities instead of public auction. The Full Bench in para. 29, which has been quoted above, has clearly held that fisheries lease should be settled through public auction so that every person belonging to the preferential category may know about it and in case more than one person belonging to preferential category are interested in taking the lease, then it shall be settled through auction. The Government Order dated 23.2.2006 is clearly based upon wrong interpretation of the Full Bench Authority. Hence it shall not be given effect to. Fisheries lease shall be settled strictly in accordance with Full Bench authority which clearly mandates that a date for public auction shall be advertised in news paper. It is needless to add that the advertisement must appear at least about a week before the date of auction. However, in case only one person belonging to preferential category comes forward on the advertised date, then fisheries lease shall be settled in his favour. In case more than one person belonging to preferential category as provided in the Government Order dated 17.10.1995 intend to take the fisheries lease, then it shall be settled through auction amongst them. In case no person belonging to preferential category is present on the date of auction then general auction amongst all the participants shall take place." In Babban Ram v. State of U.P.,, 2004 (97) RD 675 I have held that fisheries lease should not be settled for less than Rs. 10,000/ - per hectare per year. I have decided more than 500 cases on the basis of the said authority. Other Honourable Judges in several cases have also issued similar directions. Paragraphs No. 1, 2, 3 & 6 of the authority of Babban Ram are quoted below: "1. Dispute in the instant writ petition relates to grant of fisheries rights in respect of a pond comprised in plot No. 220 area 1.06 Hectares situate in village Seuwara, Tahsil Machhalishahr, district Jaunpur. Initially petitioner was lessee of the said pond at an annual rent/premium of Rs. 300/ -. Lekhpal, Naib Tahsildar and Tahsildar recommended that the lease of fisheries rights in respect of the said pond might be given to respondents No. 5 and 6 for Rs. 250/ - per year. S.D.O./Deputy Collector on 14.11.2003 passed a patent order, "accepted as proposed". On 23.3.2004 I passed an order indicating that on the next date pond might be auctioned in the open Court. Today both the parties i.e. petitioner on the one hand and respondents No. 5 and 6 on the other hand through their learned Counsel offered their bids in the following manner: By judicial intervention annual rent/premium has been enhanced from Rs. 250/ - to Rs. 37,000/ - (i.e. 148 times).
(2.) I have followed this procedure with very good results in several cases drawing inspiration from an authority of Supreme Court Ram & Shyam Company v. State of Haryana : AIR 1985 SC 1147. In the said authority Supreme Court settled mining lease through auction in Court wherein annual premium was enhanced from Rs. 4.5 lacs to Rs. 25 lacs i.e. about five and half times by judicial intervention, which according to para -6 of the said authority visibly shocked and surprised each one in the Court - - "Shock was induced by the fact that public property was squandered away for a song by persons in power who hold the position of trust Surprise was how judicial intervention can serve larger public interest. One would require multilayered blindfold to reject the appeal of the appellant on any tenuous ground so that the respondent may enjoy and aggrandize his unjust enrichment. On this point we say no more." (Para -6 of the aforesaid authority of the Supreme Court): 6. It is a matter of grave concern that inspite of the aforesaid judgments Deputy Collectors are settling fisheries pattas without auction on highly inadequate premiums which is some times almost no premium as in the instant case. In the instant case instead of enhancing the premium it has been reduced. In almost all such cases favourable recommendation for renewal or grant of lease is made by Naib Tehsildars, Tehsildars and Revenue Inspectors and the said recommendation is blindly accepted by Deputy Collectors by patent order "accepted as proposed". Deputy Collectors are not supposed to pass such orders in important matters. Such orders can be passed only in routine matters. For important matters Deputy Collector or any other Executive Officer must apply his mind and pass a reasoned order. In several cases pertaining to fisheries pattas which came before me during last two and half months premium was enhanced by 30 to 50 times either through auction in Court or by simply asking patta holder to enhance the premium. The Deputy Collectors are directed to be cautious in future otherwise Court may consider recommending initiation of punitive proceedings against erring officials including Deputy Collectors. Collectors of the Districts are also directed to keep a watch on the working of Deputy Collectors in this regard. On the basis of experience gained by auctioning fisheries leases in Court it can safely be said that the average premium for which such leases can be granted is Rs. 10,000/ - per hectare per year. In future if lease is granted for lesser premium than Rs. 10,000/ - per hectare per year then special reasons must be given by the Deputy Collectors in the orders accepting the proposal/bid." Accordingly, it is directed that respondent No. 2 may be permitted to use the ponds in dispute for fisheries purposes uptill 11.7.2014. However for the entire period of 10 years (12.7.2004 to 11.7.2014) rent should be recovered from the respondent No. 2 at the rate of Rs. 10,000/ - per hectare per year after adjusting the amount already paid by respondent No. 2 like arrears of land revenue by the Collector within three months. For the subsequent period (12.7.2014 to 11.7.2024) fisheries lease in respect of the ponds shall be settled after due advertisement in Daily Hindu Newspaper, Dainik Jagran, Amar Ujala published from the place nearest from the village in question and auction in the advertisement number and area of each and every pond shall separately be shown. Auction shall also take place separately for each and every pond. The highest bidder must be given the lease. No bid below Rs. 10,000/ - per hectare per year shall be accepted. If the bid of any Sahkari Samiti including that of respondent No. 2 and of a private person is equal only then preference shall be given to the fisheries Sahkari Samiti otherwise not. The advertisement shall appear in the Newspaper about one week of date of auction. Place and time of auction shall be indicated in the advertisement. Proceedings shall be completed by the end of May, 2014. The Collector, Hardoi is directed to send a compliance report regarding recovery of the above amount from respondent No. 2 within three months. Writ petition is disposed of.;