SHIV POOJAN PRASAD Vs. DISTRICT MAGISTRATE CHANDAULI

JUDGEMENT

(1.) Present petition has its genesis in the order dated 26-11-2002 passed by the District Magistrate Chandauli arrayed as respondent No. 1 and the consequential order dated 29-11-2002 thereby reopening the auction of Pond/Tank for fisheries rights, comprising in Plot No. 609/2, 619, 687 admeasuring 2.56 acres situated in village Baburi Pergana Majhwar Tahsil and District Chandauli.

(2.) Facts shorn of unnecessary details are that the pond/tank in question was, to begin with, put to auction in accordance with law on 9-10-2002 and the fisheries rights came to be settled in favour of the petitioner who being the highest bidder i.e. Rupees 70,000/-. Subsequently, Patta came to be executed in favour of the petitioner on 30-10-2002 by the competent authority. It transpires from the record that respondent No. 4 made an application seeking cancellation of the Patta before the District Magistrate Chandauli on the ground that manipulations were contrived in the proceeding of auctioning the fisheries rights to the petitioners in the pond/tank in question. In the self-same application preferred for cancellation of Patta, the respondent No. 4 gave yet higher offer. It would further transpire from the record that on the said application, Tahsildar-respondent No. 3 issued notice on 20-11-2002 fixing 28th Nov. 2002 for appearance and hearing. It would further appear from the record that the District Magistrate took up the matter on 26-11-2002 before the date fixed and made direction to the Sub-Divisional Officer to initiate proceeding for re-auction of the pond/tank visibly on the premises that Opp. party No. 4 had made offer of Rs. 2,80,000/- for fisheries rights in the said pond/tank. As a sequel to the direction the Sub-divisional Officer called for a report from the Tahsildar vide order dated 29-11-2002.

(3.) I have heard learned counsel for the parties and considered the respective contentions in all its ramifications. One Bablu son of respondent No. 2 who has filed an application for impleadment in the instant petition is represented by Sri D. K. S. Rathore. On behalf of Jagdish Prasad, Caveator, Sri S. N. Singh addressed the Court. Learned counsel for the petitioner began his submission stating that auction in favour of the petitioner had attained finality on 9-10-2002 and resultantly Patta was executed accordingly on 30th Oct. 2002 by the Competent Authority with consequent approval of the Sub Divisional Officer affixed thereon. He further submitted that the Patta still subsists and has not been rescinded. On application of the Opp. party No. 4, proceeds the submission, a notice was received from Tahsildar to appear on 28th Nov. 2002 and before the petitioner could act upon the notice, orders were made for re-auctioning of the pond/tank for fisheries rights without any authority of law. He further submitted that the impugned order dated 26th Nov. 2002 and consequent order of the S.D.O. dated 29-11-2002 nodding in approval of the said order wear the taint of having been passed without jurisdiction and the same militate against the principles of natural justice. The learned Counsel further submitted that the competent authority to award/settle Patta is the Sub Divisional Officer and once the Patta has been executed, even the Sub Divisional Officer is not competent to interfere in the matter for re-auctioning of the fisheries rights. Sri Anuj Kumar, learned Counsel appearing for the Gaon Sabha canvassed his contentions in vindication of the ordef of Tahsildar and the learned Standing Counsel put weight to the contentions made by the learned Counsel appearing for the Gaon Sabha. When they were confronted with the questions as to how the order dated 26-11-2002 was passed without cancelling Patta executed in favour of the petitioner post-fixed with the approval of the S.D.O. and further as to how the order was passed ex parte behind the back of the petitioner, both the counsel could not furnish adequate reply in vindication of the orders impugned herein.