R. M. Sahai, J. - (1.) THE short question that arises for consideration in this petition is if the requirement of approval by Collector of lease granted for fishing in tank under paragraph 62 of Gaon Sabha Manual is applicable to leases granted by Sub-Divisional Magistrate as well.
(2.) IT is not disputed that since 1981 Sub-Divisional Magistrates have also been empowered to grant lease for fishing even in those tanks which were not auctioned earlier. Prior to 1981 paragraph 62 of the Gaon Sabha Manual authorised the Land Management to grant leases in such tanks subject to fulfilment of two conditions. One an unanimous resolution by Land Management; second its approval by Collector. In 1981 a further paragraph was added by GO No. 400/XIII-1(3) 77 dated 22nd May, 1981 empowering Sub-Divisional Magistrate also to exercise this power in cases where Land Management was not able to grant it for some reasons and he considers it necessary to make such arrangement. What has been held by appellate authority while restraining from exercising right of fishing on strength of lease granted by Sub-Divisional Magistrate is that by virtue of GO of 1981 the Sub-Divisional Officer stands substituted in place of Land Management Committee therefore, in a case where lease was granted by Sub-Divisional Officer the first requirement was satisfied but in order to be valid it had to satisfy the second condition namely approval by Collector. And as this was not got done the lease was invalid. In taking this view the appellate authority appears to have erroneously construed the GO. To examine its exact phraseology on which turned the correctness or otherwise of the construction put by the appellate court, adjournments were granted to the learned counsel for Gaon Sabha but he failed to produce its copy. Learned counsel for petitioner, however, produced the GO the number etc. of which is the same as mentioned in appellate order. Some doubt arose as it purported to be in addition to paragraph 60 (2) (b) of Gaon Sabha Manual. But on perusal of paragraph 62 and 60 it became apparent that paragraph 60 mentioned in GO was a mistake. It was added to paragraph 62 (2) (b) of the Manual. Authenticity of the copy was not disputed by the learned counsel for Gaon Sabha. In fact both the courts below have construed this very GO. The power conferred on Sub-Divisional Officer by this GO is in addition to power exercised by Land Management Committee. From 1981 the right to grant lease for fishing in a pond or tank which were not used to be auctioned earlier stood vested in two authorities, one the Land Management Committee and the other Sub-Divisional Officer. Circumstances and manner of exercise of power by the two authorities have been detailed in paragraphs themselves. If the Land Management Committee decides to grant this right it could do so by unanimous resolution and approval of Collector. If the Sub-Divisional Officer exercises this power he should be satisfied that Land Management Committee is not able to grant the lease and it is necessary to do so. Rationale appears to be obvious. The Land Management Committee is not required to fulfil any condition except passing of unanimous resolution, as the Collector while granting approval shall examine if the recommendation should be accepted or not. But where lease is granted by Sub-Divisional Officer be can do so only if he is satisfied that it was necessary. That is he has to be guided by considerations of necessity. Moreover, Collector under Land Abolition Act includes Assistant Collector which a Sub-Divisional Officer is. He cannot seek approval of his own action. Then, the forum for cancellation of lease is revenue court and not the Civil Court. Therefore, from whatever aspect it is examined the order of appellate authority declaring the lease to be illegal cannot be sustained. In the result, this petition succeeds and is allowed. The order of appellate court granting temporary injunction against petitioner is quashed. The trial court shall decide the suit within four months from the date copy of order is produced before it. Learned counsel for petitioner has undertaken that in order to facilitate expeditious disposal of the suit his client shall not take any adjournment. The petitioner shall be entitled to its costs. Petition allowed.;