MUSHTAQ AHMAD Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Ramendra Pratap Singh, learned Senior Advocate assisted by Sri Alok Singh, learned counsel for the petitioner and Sri S.K.Srivastava, learned Additional Chief Standing Counsel for the State respondents.

(2.) Briefly stated facts of the case are that in terms of dated 20th Government Order dtd. 8/3/2000 and consequential amended Government Order April, 2001 fisheries department of the State published notice for auction of reservoir in district Sonbhadra and Mirzapur namely, Dhandhraul Reservoir and Baraudha Reservoir, Class I and Class III category respectively for fisheries on 8/12/2014 and petitioner being highest bidder was granted fisheries lease in respect of Dhandhraul reservoir, Class I category, for a lease rent of Rs.60,00,000.00 per year, extandable to next two years on a year to year basis. The standard qua fisheries rights in reservoir came to be awarded to the petitioner on 17/12/2014 for the financial year 2014-15 and petitioner immediately undisputedly deposited 25 percent amount to Rs.15.00lacs before Auction Committee. The agreement was entered and petitioner spent money on seeds to grow fishes for the purposes of fishing. In order to lay eggs/ seeds in the clean reservoir seeds for growing fish for the fishing purposes and to start with fishing, petitioner was directed to enter an agreement vide letter dated 18 th March, 2015 and was directed to deposit entire dues by 31 st March, 2015, failing which interest would accrue @ 2 percent per month on delayed payment and in the event he failed to make deposits, tender lease qua fishing rights would automatically stand terminated.

(3.) Petitioner since failed to deposit any further amount, he was served with another notice on 25 th June, 2015 to deposit remaining amount of Rs.45.00 lacs alongwith interest by 30 th June, 2015, else amount will be recoverable as arrears of land revenue. Petitioner replied to this notice vide letter dated 30 th June, 2015, lamenting upon conduct of the people managing the dam, in opening the dam gate, which resulted in the grown fishes get slipped into canal from the reservoir and resultantly he suffered huge loss and resultantly he could not do much fishing and since this was done without notice to petitioner, he could not do anything in the matter and hence considering the quantum of remaining there in the reservoir, the contract money deposited was sufficient. Vide letter dated 14 th July, 2015, petitioner informed to Joint Director of fisheries' department that as against expected 850 quintal of fish, he could fish out only 45.5. quintal of fish from the Dhandhraul reservoir and this was informed to the officers of the department who were posted at the reservoir. However, since there was serious disputed questions of fact as per arbitration clause under the agreement, one Bhishm Lal Vermal , Director Fisheries, U.P. was appointed as an arbitrator who issued a notice to the petitioner on 17 th February, 2016 to appear and to put up his defence. The arbitrator further passed an order on 4/3/2016 to the effect that since matter was engaging attention in a pending arbitration, therefore, recovery certificate dtd. 3/12/2015 for a sum of Rs.49,27,905.00 should not have been pressed into service. However upon this assurance that arbitration was going, petitioner withdrew his complaint made before consumer forum and order to that effect was passed by presiding officer of the consumer forum on 30 th September, 2016. It is further noticeable that sole arbitrator stood transferred and consequently matter of arbitration was referred to Arbitration Committee appointed by the concerned Secretary, State of U.P. under his order dated 21 st September, 2016. This committee consisted of Dr. Nazul Haq, Managing Director of Fisheries, Cooperative Societies Ltd. Lucknow as Chairman with N.S. Rahmani, Chief Manager of Fishing Development Board and A.K.Lal, Deputy Director, Headquarters, Directorate of Fisheries, member of Secretary. The matter was contested before Arbitration Committee by petitioner and ultimately arbitration committee arrived at a conclusion that since maximum fishes got slipped away into the canal on the opening of dam sluice gate reducing to lowest level of water in the reservoir, hence not much fishing could be done and fishing was only to the extent of 45.5. quintals as against 850 quintals, for which lease was awarded. The Arbitration Committee reached out to the conclusion that fishing for the financial year 2014-15 could be only of 45.5 quintals of which, the average cost would be Rs.4.60 lacs and petitioner since had already deposited Rs.15.00 lacs as security amount in terms of bank guarantee of Rs, 9.93 lacs with respondent and since Rs.22.00 lacs has been determined as lowest price and of contract amount money deposited by petitioner to the tune of Rs.24.93 lacs was more than 22 lacs, hence there was no loss caused to the department. It was a finding returned by the Arbitration Committee that since contract was not there on "as is where is" basis, it was duty of the department to have ensured enough water in the reservoir in the event if sluice gates were to be opened so as to ensure that fishes do not get slipped away into the canal causing loss to contractor and hence contractor cannot be held responsible for the loss. The Arbitration Committee, thus, concluded that though loss was caused to the department but since fish lease had already been cancelled, therefore, government should waive off recovery dues taking sympathetic consideration of the matter. Upon this arbitration, judgment being submitted to the State Government, the State Government accepted the same and waived off recovery vide order dtd. 16/3/2017. Paragraphs 4 and 5 of the order are important and hence reproduced hereunder: