- (1.) We have heard Sri Alok Kumar Yadav, learned counsel appearing on behalf of the writ petitioners, Sri S.M.A. Kazmi, learned Chief Standing Counsel and Sri R.V. Singh, learned standing counsel appearing on behalf of the State.
(2.) This Full Bench has been constituted on a reference made to it by a learned single Judge vide its referring order dated 25th September, 2001 passed in this writ petition. Learned single Judge found conflict in judgment of Division Benches which necessitated the reference. The following eight questions have been referred to this Full Bench:- (i)Whether judicial propriety demands that if a Bench of High Court is unable to agree with the decision already rendered by earlier Division Bench of co-ordinate jurisdiction, the question of disagreement should be referred to a Larger Bench under Chapter V Rule 6 of the Rules of the Court, 1951? (ii)Whether the decisions rendered in former two Division Benches in the case of Ajai Shanker (supra), which were brought to the notice of learned Judges constituting Division Bench in case of Panchoo (supra), the latter Division Bench instead of disagreement with ratio decidendi of two former Division Benches, it ought to have referred the same to a larger Bench of this Court? (iii)Whether Article 14 and Article 19(1) (g) of the Constitution postulate a reasonable classification to ameliorate the economic condition of weaker section of society of fishermen community enumerated under Paragraph 62 (2) (kha) of Gaon Sabha Manual and also for elimination of middlemen to save the said weaker section of society from exploitation as the Directive Principles embodied the ideal of socio economic justice as assured in the preamble of the Constitution and the Courts are to adopt the principle of harmonious interpretation of Article 14 and 19 (1) (g) of the Constitution so as to give effect to the Fundamental rights as well as Directive Principles of State Policy? (iv)Whether in view of the State List of Seventh Schedule Item No.21 empowers State Legislature to enact on the subject of fisheries, placing U.P. Act No.1 of 1951, with Ninth Schedule of the Constitution and the mandatory provisions enshrined under Article 243-G read with Item No.5 of Eleventh Schedule which includes settlement of fisheries of the ponds and tanks vested in Gaon Sabha with powers, authority and responsibility of Panchayat, the preparation of plans for economic development and social justice and the implementation of scheme for economic development and social justice as entrusted to them under Paragraph 60 (2) (Kha) of Gaon Sabha Manual issued by the State Government in exercise of its power under Section 126 of U.P. Act No.1 of 1951 and the Rules framed thereunder are sacrosanct being policy of affirmative action of the State Government giving Distributive justice to the weaker section of society and to protect them from social injustice and all forms of exploitation? (v)Whether the decision rendered by learned Single Judge in case of Man Singh (supra) conferring jurisdiction upon Sub Divisional Officer and Collector both for cancellation of Patta of fishery right making the order of Collector revisable requires reconsideration in view of sub-sections (6) and (7) of Section 122-C of U.P. Act No.1 of 1951 and decision rendered by Supreme Court in case of Dhulabhai (supra)? (vi)Whether jurisdiction of Civil Court is expressly barred to cancel the fisheries rights granted under paragraph 60(2) (Kha) of Gaon Sabha Manual and the decision rendered by Division Bench of this Court in case of Todi (supra) requires reconsideration in view of decision rendered by Full Bench of this Court in case of Similesh Kumar (supra) ? (vii)Whether rights of appeals and revisions are creation of statute and once statutory provisions indicate the manner of settlement of dispute, no other authority including Civil Court has jurisdiction to re-adjudicate the matter covered thereby? (viii)Whether leases of rearing of fishes in ponds and tanks vested in Gaon Sabha under Section 117 of U.P. Act No.1 of 1951 fall within the meaning of agricultural land as defined under Section 3(14) of the said Act and such leases are exempted from Registration as envisaged under Section 117 of Transfer of Property Act? So far as first two questions are concerned, we answer those in the affirmative, i.e., a Division Bench seeking to disagree with an earlier Division Bench cannot do it itself, but it can record its desire to disagree and thereafter call for a reference to a Larger Bench. Following authorities might be referred to in this regard; (1975)2 SCC 232; (Mamleshwar Prasad v. Kanhaiya Lal), (1997)10 SCC 258, (State Bank of India and others Versus Labour Enforcement Officer (Central) and another ) (2003)5 SCC 448, especially at page 454 ( State of Bihar Versus Kalika Kuer Alias Singh and others ) and (2001)6 SCC 356, especially at paragraph 22 ( Fuerst Day Lawson Ltd. Versus Jindal Exports Ltd.). Before the learned single Judge bunch of writ petitions were posted, Writ Petition No. 23932 of 2001 being leading writ petition, arising out of various orders passed by Sub Divisional Officers granting fishery leases, refusing to renew fishery leases and in some of the writ petitions question was involved as to which is the appropriate forum for cancelling the fishery lease granted under the provisions of the Uttar Pradesh Zamindary Abolition and Land Reforms Act, 1950 and the rules framed thereunder. It is necessary to note the relevant provisions of Uttar Pradesh Zamindary Abolition and Land Reforms Act, 1950 (hereinafter referred to as 1950 Act) and the rules and other relevant provisions relating to grant of fishery lease. Under Section 117 of 1950 Act, the State Government may declare that the things mentioned therein, which had vested in the State, shall vest in the Gaon Sabha or any other local authorities. In this writ petition we are concerned with fishery which has been vested in the Gaon Sabha by virtue of notification of the State Government under Section 117 of 1950 Act. According to Section 122-A of 1950 Act general superintendence, management, preservation and control of all the land, forests, fisheries, tanks, ponds, water channels, pathways, abadi site and hats, bazars and melas vested in the Gaon Sabha are under the charge of Land Management Committee. The functions and duties of the Land Management Committee include development of animal husbandry which include pisciculture. Under Section 28-B of the U.P. Pranchayat Raj Act, 1947, Bhumi Prabandhak Samiti is charged with the general management, preservation and control of all the properties as referred to under Section 28-A of the U.P. Pranchayat Raj Act, 1947 including the maintenance and development of the fisheries and tanks. Section 126 of the 1950 Act is extracted below:- "126. Gaon Panchayat or the Committee to carry on orders and directions of the State Government.-(1) The State Government may issue sucyh orders and directions to the [Land Management Committee] as may appear to be necessary for purposes of this Act. (2) It shall be the duty of the [Land Management Committee] and [its] office bearers to forthwith carry out such orders and comply with such directions. Rules framed under the 1950 Act, namely, Uttar Pradesh Zamindari Abolition & Land Reforms Rules, 1952 (hereinafter referred to as 1952 Rules), provide for mode of settlement of land, abadi sites and other properties vested in Gaon Sabha. Rule 115-A of 1952 Rules empowers the State Government to issue direction to Bhumi Prabandhak Samiti. Rule 115-A of 1952 Rules is extracted below:- "[115-A. The State Government may issue directions to the Bhumi Prabandhak Samities (Land Management Committees) established under Section 28-A of the U.P. Pranchayat Raj Act, 1947, on the following among other matters:- (1)land management, including preservation of land for purposes of public utility; (2)expenditure of the amount placed at the disposal of the Bhumi Prabandhak Samiti by the Gaon Panchayt; and (3)matters relating to the functions of the Bhumi Prabandhak Samitis as laid down in Section 28-B of the U.P. Pranchayat Raj Act, 1947, in so far they appear necessary for the purposes of the Act]" Rule 115-S of 1952 Rules provides for manner and procedure for grant of lease and licence in respect of any property vested in the Gaon Sabha. Rule 115-S(1) specifically provides that no lease or licence shall be made in favour of a person except by public auction held in accordance with the procedure given thereunder. However, Rule 115-S(1) has a proviso which is of following effect:- [115-S. (1). .......................................... Provided that the provisions of this rule shall not apply to (i)cases of allotment of agricultural land and abadi sites covered by Rules 173 to 177 and Rules 115-L to 115-R, respectively; and (ii)cases in which the State Government issue directions under Section 126 of the Act read with Rules 115-A and 115-B] : Provided further that in case of perennial tanks of three or more acres in ara, the Land Management Committee may, with the previous permission of the Assistant Collector-in-Charge of the sub-division concerned, grant a lease for a period not exceeding seven years in favour of one or more than one fisherman residing within the circle of the Gaon Sabha or in favour of a co operative society of such fisherman registered under the Co-operative Societies Act, 1912 (Act No.2 of 1912), and registered place whereof situate within such circle.]"
(3.) The State Government in exercise of its power under Section 126 of 1950 Act read with Rule 115-A and 115-B of 1952 Rules had issued various Government orders providing for regulating the settlement of fishery lease in the ponds and tanks vested in the Gaon Sabha. The provisions of Uttar Pradesh Gram Sabha Manual contains procedure for regulating fishery in tanks, ponds and water channels. The said settlement is made in accordance with various Government orders issued from time to time. Learned standing counsel has placed before us, the Government orders dated 24th April, 1990, 4th January, 1994 and 17th October, 1995 issued by the State Government in exercise of its power under Section 126 of 1950 Act read with Rules 115-A and 115-B of 1952 Rules. A procedure is provided for settlement of fishing right in the tanks and ponds vested in the Gaon Sabha. According to Government order separate provisions have been made for settlement of fishing right in ponds and tanks more than two hectares and in ponds and tanks less than two hectares. The grant of lease is provided to various categories of persons which include cooperative societies of fishermen. An order of preference is provided under the Government order according to which the lease is to be granted. Now at this juncture conflicting views expressed by various Division Benches are to be noted for answering the remaining questions referred to us. A Division Bench of this Court in Ajai Sonkar Vs. State of U.P.; 1997 RD 157, had occasion to consider the preference given to the Fishing Cooperative Society. The Division Bench held that giving preference to Cooperative Societies does not amount to discrimination attracting Article 14 of the Constitution. Following was observed in paragraph 5:- "5. Pursuant to above Rules notice dated 17.6.96 (Annexure-1) was published, in clause 2 of which it has been specifically mentioned that in granting lease cooperative matsya societies of same village or Gaon Sabha are to be given preference. The idea behind it is to promote the cooperative movement. Thus, if by giving preference to cooperative societies applications for granting lease are invited, it is settled that it does not amount to discrimination attracting Article 14 of the Constitution but it is in consonance with the cooperative jurisprudence. Therefore, the submission made by the learned counsel for the petitioner that the petitioner who belongs to a general category has been discriminated, has no legs to stand.;