M.L. Chaturvedi, J. - (1.) THIS is a petition under Article 226 of the Constitution praying for the issue of a writ of certiorari quashing the order of the Tehsildar, dated 29 -12 -1956 and for the issue of a writ of Mandamus restraining the Respondent No. 1 from delivering possession of the fishery right of the three tanks to the auction purchaser, Sital Prasad (Respondent No. 2.)
(2.) BEFORE the abolition of the zamindari, the Petitioner had obtained a contract from the zamindar granting to the Petitioners the fishery right in the three tanks in dispute. The annual rent was Rs. 900. The names of the Petitioners were recorded as holders of these sayar rights in the khatauni of 1354 Fasli and it appears that the entry continued at least till 1359 Fasli. One Ram Sunder got his name entered as Sayar -holder in 1359 Fasli but on an application made by the Petitioners, his name was ultimately ordered to be expunged. Ram Sunder and others then filed a civil suit in respect of the fishery rights and that suit is still pending. On 1 -11 -1956 the Land Management Committee of the village leased the fishery fight for one year in favour of second Respondent, Sital, Prasad, for a sum of Rs. 600. The Petitioners moved an application in the civil suit for an injunction to restrain the auction sale of these rights but the application was dismissed. The Petitioners made a number of attempts to have the auction in favour of the second Respondent cancelled but none of the attempts succeeded. They then filed an objection before the Tahsildar. The Tahsildar dismissed that objection by the impugned order dated 28 -12 -1956, on the ground that it was filed beyond the time allowed by the rules. Learned Counsel for the Petitioner had not urged before me that the decision of the Tahsildar, that the objections were filed beyond the time allowed by the rules, is erroneous. But he has argued that the Petitioners have a not of continuing right to the fishery in these tanks by virtue of para 62(2) of the Gaon Samaj Manual. His argument is that his (clients are entitled to enjoy this fishery right to the exclusion of everybody else and the auction of these rights could not be held by the Land Management Committee in favour of any other individual. Para 62(2) of the UP Gaon Samaj Manual is in the following words: In cases where a person is recorded in the Khatauni of 1359 Fasli as paying sawai income or rent for fishing in a tank or pond or a portion thereof he shall be allowed to continue. The contract shall, however, be given for one year and should be renewed from year to year. The rent shall be fixed on the average of the last five years plus ten percent. In case the average plus ten percent is less than the amount recorded in 1359 Fasli the contract shall be offered at the latter figure." The first question that arises for consideration is whether sub -Para. (2) of para 62 has the force of law. The rights in the fishery in different tanks have been conferred on the Gaon Samaj by the Government and certain rules also have been framed with respect to the exercise of those rights.
(3.) LEARNED Counsel for the Petitioner has pointed out Rule 115(1)(d) and Rule 115 -A of the ZA and LR Rules. Rule 115(1)(a) authorises the Land Management Committees to perform, amongst others, the function of preservation of tanks and ponds and regulation of the exercise of rights of irrigation therefrom. Rule 115 -A says that the State Government may issue directions to the Gaon Panchayat or the Land Management Committees in respect of certain matters and amongst others the directions are permissible with respect to matters relating to Sub -Clauses (a) to (g)of Clause (1 of Rule 115. The explanation to Rule 115 -B says that the directions contained in the Gaon Samaj Manual shall be deemed to be the directions issued in accordance with the Rule 115 -A. The argument of the learned Counsel is that the question of the auction of fishery rights falls under Clause (d) of Sub -rule (1) of Rule 115 and sub -para (2) of para 62 of the Gaon Samaj Manual contains the directions on the subject. It should consequently be taken to be a direction issued in accordance with Rule 115 -A.;