SHYAM KUNWAR Vs. STATE OF U P

JUDGEMENT

(1.) Fisheries lease in respect of a pond comprised in plot No. 290 area 1.137 hectares situate in village Surhurpur, Tappa-Haveli, Pargana and Tehsil Mohammadabad Gohna, District Mau was granted by Deputy Collector in favour of respondent No. 4-Chhotkun for only Rs. 2,000/- per year and that also without any advertisement or auction. There are several authorities of this Court (op. cit) to the effect that fisheries lease shall be granted only and only through auction, and that auction cannot be confined to members of any particular caste, society or group of professionals (Machhuva Samudai). In the aforesaid authorities it has also been held that fisheries lease cannot be renewed and after expiry of fisheries lease fresh auction/re-auction shall take place. Like the present case, I have found that in several cases fisheries leases are being settled without any auction and just on the recommendation of Naib Tehsildar/Tehsildar or resolution of Gaoh Sabha and that also for highly inadequate rents. In several such matters where two parties were claiming for grant of fisheries lease I settled the matter by auction in open Court in between the contesting parties drawing inspiration from the authority of the Supreme Court in Ram and Shyam Company v. State of Haryana, AIR 198S SC 1147. In several such auctions parties offered quite handsome amount. I therefore, held in Babban Ram v. State, 2004 (2) RD 675, that normally fisheries lease should be settled at the rent of Rs. 10,000/- per hectare per year. However, on the basis of experience gained in subsequent auctions I found that even the said rent was on the lower side. In several cases parties offered in between Rs. 25,000/- to Rs. 50,000/- per year rent. In few cases rent offered was around Rs. 1 lac per hectare per year. In pursuance of my Order dated 17.1.2005 passed in this writ petition Deputy Collector concerned has filed his affidavit stating therein that as earlier lease was granted for Rs. 700/- per year hence Rs. 2,000/- appeared to be appropriate to him and that he was also not aware of the Full Bench authority of this Court in Fern v. State of U.P., 2004 (96) RD 645. The Court refrains from making any comment on this blissful ignorance.

(2.) Facts of the instant case are that ten years' fisheries lease in respect of pond in dispute was granted in favour of petitioner's father in the year 1994 on 28.3.1994 for Rs. 700 per year even though lease deed (copy of which is Annexure-3 to the writ petition) was executed on 30.7.1996 but the period of lease was from 1.4.1995 to 31.3.2005. It has further been stated that Land Management Committee on 4.7.2004 passed a resolution for grant of fisheries lease for ten years in favour of Chhotkun, respondent No. 4. Initially on the said resolution a report was submitted that as the period of lease in favour of petitioners' father was to expire on 31.3.2005 hence before that period no fresh lease could be granted. However, Tehsildar on 25.10.2004 submitted another report to the effect that lease in favour of petitioners' father was granted by Order dated" 28.3,1994 hence it expired on 28.3.2004, therefore resolution of Gaon Sabha shall be accepted. Said report was given by Tehsildar on 25.10.2004 which was accepted by Deputy Collector/S.D.O. by Order dated 19.11.2004 which is Annexure-6 to the writ petition. The said Order is under challenge in the instant writ petition.

(3.) In the following authorities, it has been held that fisheries lease shall be settled through open auction and after expiry of period of lease, re-auction shall take place and initial lease shall not be renewed :