- (1.) ASHOK Bhushan, J. Heard Sri ASHOK Kumar Singh Yadav learned Counsel for the petitioner, Sri Janardan Singh Yadav learned Counsel appearing for respondent No. 4, Sri A. K. Singh, Advocate, appearing for respondent No. 5 and learned Standing Counsel.
(2.) BY the consent of the learned Counsel for the parties, the writ petition is being finally decided. By this writ petition, the petitioner has prayed for quashing the order dated 10th March, 2008 passed by the Sub Divisional Officer, Mohammadabad, Ghazipur, with drawing the approval granted in favour of petitioner dated 3rd June, 2006 and the order dated Istapril, 2008 and 4thapril, 2008 approving the fishery lease in favourof respondent No. 5. Brief facts of the case for deciding the writ petition are; plot No. 198 area 0. 760 Hectare is a pond situate in Village Firojpur, Pargana and Tehsil Mohammadabad, District Ghazipur. The petitioner is a resident of Village Firojpur and belongs to Scheduled Caste category. The Sub Divisional Officer approved the fishery lease in favour of the petitioner for an amount of Rs. 4,000/- per annum vide his order dated 3rd June, 2006. Acomplaint was filed by respondent No. 4 to the Sub Divisional Officer, against the approval of lease in favourof the petitioner. ' On the complaint,"a report was submitted by the Naib Tehsildar to the effect that in the auction, the Government Order dated 17th October, 1995 has not been rollowed since there are several persons belonging Machhua Community in the village. It was also reported that no proof of munadi or publication in newspaper are in the file. A notice was issued to the petitioner as to why the approval be not cancelled. The petitioner filed an objection stating that auction in favour of peti tioner was made after following the procedure prescribed. Itwas also stated that in spite of repeated requests, the lease has not yet been registered. The Sub Divisional Officer by the impugned order dated 10th March, 2008 withdrew the approval dated 3rd June, 2006 and directed for fresh steps for settlement of pond. The Sub Divisional Officer gave two reasons for withdrawing the approval, firstly that there is no material to prove that prior to auction wide publicity was made and secondly the petitioner was a Scheduled Caste who does not come in the eligibility since preference is to be given to the persons of Machhua Community. Subsequent to order dated 10th March, 2008, the Sub Divisional Officer held proceedings on 24th March, 2008 for fresh settlement. The highest bid was given by the respondent No. 5 of Rs. 6. 000 - per annum. Conseauently, a lease was executed infavourof respondent No. 5 on Ist April, 2008. The respondent No. Sclaimsto be a person belonging to fishing community. Itwas further stated that petitioner also filed a suit on 21. 1. 2008 in the Court of Civil Judge for injunction. The respon dent No. 5 was impleaded on an application filed by respondent No. 5 himself wcte order dated 16th April, 2008. The petitioner was also permitted to amend the writ petition by the order of the same date i. e. 16th April, 2008.
(3.) LEARNED Counsel for the petitioner challenging the order dated 10th March, 2008 as well as subsequent settlement in favour of respondent No. 5, contended that there was no ground to recall the approval in favour of the petitioner. He further contends that fresh settlement has been granted in favour of respondent No. 5 who claims to be a Cooperative Society. Learned Counsel for the petitioner in support of his case has relied on paragraph 5 of the Government Order dated 17th October, 1995 to the effect that lease can be granted to a person belonging to Machhua Community of the Nyay Panchayat only when there is no person available in the village who is desirous to take the lease. Learned Counsel for the petitioner submits that in preference to the petitioner who belongs to Scheduled Caste and resident of the same village, the grant of lease in favour of respondent No. 5 who belongs to another village namely Shavaz Kuli is not in accordance with the Government Order dated 17th October, 1995.;