S. K. Verma, J. - (1.) THE present petition under Article 226 of the Constitution of India has been filed for issue of a direction in the nature of certiorari for quashing the impugned (order dated 9-2-1994 by respondent no. 1 which is annexure 3 to the writ petition and for issue of a writ in the nature of mandamus commanding the respondents no. 1 to 3 not to auction the fisheries right of tank no. 194. area 3 bighas 15 biswas situate in Gaon Sabha Harchandpur pargana Manglaur tahsil Roorkee district Hard war and yet another mandamus directing the respondents to renew the lease in favour of the petitioner for a further period of 10 years from 15-3- 1994 to 14-3-2004 together with another mandamus directing the respondents not to interfere in the possession of the petitioner over the tank in question and in the alternative to allow the petitioner to take out all fisheries within a reasonable time from the pond concerned.
(2.) A lease for 10 years was issued in favour of the petitioner in respect of the aforesaid tank which expired on 14-3-1994. The Additional Disirict Magistrate, Hardwar inspite of the recommendation of the Sub Divisional Officer concerned passed the impugned order dated 9-2-1994 (annexure 3 to the writ petition) asking the Sub Divisional Officer, Roorkee to auction the fisheries rights regarding the tank in question, according to priorities issued by the State Government. The aforesaid order has been challenged on the ground that the Additional District Magistrate does not have any jurisdiction to order auction of the fisheries right either under the Panchayatraj Act or the Gaon Sabha Manual or the provisions of U. P. Zamindari Abolition and Land Reforms Act, Again, the right to grant lease for fisheries in a tank or pond vests in only two authorities, namely, Land Management Committee of the Gaon Sabha concerned and the Sub-Divisional Officer. It has also been vehemently argued that Government Order No. 400/XIII. l-(3) 77 dated May 22, 1981 directed that on the expiry of the period of 10 years if the conduct of the lease holder is satisfactory then the lease may be granted in favour of such lease holder unless there are some persons who have got some preferential rights of such lease. Hence, once the Sub- Divisional Officer recommended the case of the petitioner for renewal of the lease the Additional District Magistrate concerned has no jurisdiction to direct that the fisheries rights in the tank concerned should be auctioned. This petition has, therefore, been filed for setting aside the aforesaid order and for granting the reliefs mentioned above, We have heard the learned counsel for the petitioner and have gone through the provisions of section 126i of the U. P. Zamindari Abolition and Land Reforms Act as well as the rules framed thereunder and the provisions of U. P. PanchyatraJ Act and the Gaon Sabha Manual. In this respect learned counsel for the petitioner has cited a Division Bench decision of this Court in Gaon Sabha Tuja v. The Sub Divisional Officer, 1992 ALJ 482 and a Single Bench decision of this Court in Nithuri v. 4th Additional District Judge, 1984 RD 335. In the earlier decision Gaon Sabha. Teja v. S.D.O. (Supra), after considering the provisions of section 126 of the U. P. Zamindari Abolition and Land Reforms Act and Rule 115 A of the U. P. Zamindari Abolition and Land Reforms Rules and section 28-B of the U. P. Panchayat Raj Act, Rules 115-S and 115-B of the U. P. Zamindari Abolition and Land Reforms Rules, it was held that since the Government of U.P. has issued directions in GO. dated 22nd May, 1981, the pattas shall be given by the Sub- Divisional Officer in consultation with the Land Management Committee and if the Land Management Committee is unable to grant patta or the Sub Divisional Officer is of the opinion that it is expedient so to do, he may grant patta without consulting the Land Management 'Committee of the village. The grant of patta will be made in accordance with the directions of the Government as aforesaid. It has further been held that clause (2/ of the aforesaid Government Order dated 22nd May, 1981 provides for grant of patta in order of preference given thereunder. However, there is no statutory requirement requiring the Sub-Divisional Officer to settle the land by auction, there is no prohibition either and if be is of the opinion that in view of the facts and circumstances of a particular case it will be expedient to grant the patta of fisheries right by means of a public auction, he may do so. In Nithuri v. Additional District Judge (supra) a Single Judge of this Court held that from 1981 the right to grant lease for fishing in a pond or tank which was not used to be auctioned earlier, stood vested in two authorities, one the Land Management Committee and the other the Sub-Divisional Officer, if the Land Management Committee decides to grant this right it could do so by unanimous resolution and approval of the Collector. If the Sub- Divisional Officer exercises this power he should be satisfied that the Land Management Committee is not able to grant the patta for some reasons and he considers it necessary to make such arrangements.
(3.) SO far as the decision in Nitiuri v. Additional District Judge (supra) Is concerned it relates to the period prior to amendment dated 6-7-1987 in the Goan Sabha Manual in paras 60 (2) (ka), 60 (2) (kha) and 60 (2) (Kha) (1) and does not decide the question raised in the present petition regarding renewal of the earlier lease. Coming to the decision of this Court in Gaon Sabha, Tuja v. Sub- Divisional Officer (supra) It appears that the amendment dated 6th July, 1987 through G O. No. 10-3-57 (9)/82-710 as quoted in Chapter III of Goan Sabha and Bhumi Prabandhak Samiti Manual on pages 86 and 87 a copy of which has been filed by the petitioner himself as annexure 2 has escaped the attention of the learned counsel who addressed the Division Bench. That decision is, therefore, distinquishable so far as the same refers to provisions of the Gaon Sabha Manual as they stood prior to the amendment dated 6th of July, 1987. It is evident that in 1987 through the aforesaid GO., Paragraphs 60 (2) (ka), 60 (2) Kha) and 60 (2) (Kha) (1) have been further amended. The present paragraph 60 (2) (ka) requires the settlement of the patta after 10 years period to the same lease holder if his conduct is good and if persons mentioned in the priorities according to' paragraph 60 (2) (Kha) are not available. The present rider regarding availability of persons mentioned in the priorities has been added by the aforesaid amendment in 1987. The priorities have also been changed in Paragraph 69 (2) (Kha). Earlier, the first preference was to be given to Machhua, Maheegir, Kahar, Kevat and Mallah etc. but now the first preference has been given to Cooperative Socities of Machhua Samudaya of the same Gaoa Sabha Kshetra recognised by the Fisheries Department. The petitioner does not come under the first preference. The second preference is to other Cooperative Socities of Machhua Samudaya of the same Nyaya Panchayat or Vikas Khand recognised by the Fisheries Department. The third preference now is to Machhua, Maheegir, Kahar, Kevat, Mallah, Vind, Dheevar and Gaudiya etc. of that Gaon Sabha Kshetra. The fourth preference is for persons expert in fisheries of the same Gaon Sabha area and the 5th preference is for members of scheduled caste and scheduled tribes of that particular Gaon Sabha area and the 6th preference is for other Cooperative Societies. The case of the petitioner falls within the fifth preference as he claims to be member of scheduled caste. His case does not fall in the fourth preference because he does not hold any diploma or degree mentioned in the clarification given below category (4) in Paragraph 60 (2) (Ka) aforesaid. The training certificate of the petitioner cannot be equated to diploma or degree.;