# Shri Ram v. State of U.P. and others

- **Citation:** (2008) 2 ILRA 634
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-05-23
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-ram-v-state-of-u-p-and-others-41062
- **Pages:** 5

## Headnote

Constitution
of
India,
Article
226Settlement of Fisheries Rights-petitioner
belonging to S.C. Candidate of the same
village granted lease-on complaint of
respondent no. 5 cancelled on the
ground the settlement made without
publication in two newspapers-secondly
contrary
to
in
order
of
preference
contained
in
G.O.
17.10.95-heldnormally the proviso not construed as
nullifying enactment-Para 5(i) of the
G.O. cannot be construed as changing
the
preference-person
belonging
to
Machhua Community may be of the same
village-Nyay
Panchyat
or
Block-a
Scheduled Caste candidate belonging to
same village cannot be preferred over
the
person
belonging
to
Machhua
Community of the Block.

Held- Para 18
Paragraph 5(1) at best can be read as
proviso to the preferences as indicated in
the Government Order. A proviso is
normally not construed as nullifying the
enactment or as taking away completely
a right conferred by the enactment.
Thus,
paragraph
5(1)
cannot
be
construed as changing the preferences
as mentioned in the Government Order.
Persons
belonging
to
Machhua
Community be that of (a) same village
concerned
(b)
concerned
Nyaya
Panchyat or concerned Block are in the
first
category
and
they
will
take
precedence over a member of Schedule
Caste who is in second category, thus,
the petitioner who belongs to Schedule
Caste, cannot be preferred to a person
belonging
to
Machhua
Community
although of concerned Block. Thus the
submission of the learned counsel for the
petitioner that respondent No. 5 could
not have been given preference over the
petitioner, cannot be accepted.
Case Law Discussed:
2006 (1) ALJ 376

## Text

634 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
matter of summoning the applicants as
accused persons, if so, prayed by the
prosecution.

7. The application under Section 482
Cr.P.C. is disposed of accordingly subject
to above observations.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2008

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition 17846 of 2008

Shri Ram

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Singh Yadav

Counsel for the Respondents:
Sri. Anuj Kumar
Sri. Janardan Singh Yadav
Sri. A.K. Singh
Constitution
of
India,
Article
226Settlement of Fisheries Rights-petitioner
belonging to S.C. Candidate of the same
village granted lease-on complaint of
respondent no. 5 cancelled on the
ground the settlement made without
publication in two newspapers-secondly
contrary
to
in
order
of
preference
contained
in
G.O.
17.10.95-heldnormally the proviso not construed as
nullifying enactment-Para 5(i) of the
G.O. cannot be construed as changing
the
preference-person
belonging
to
Machhua Community may be of the same
village-Nyay
Panchyat
or
Block-a
Scheduled Caste candidate belonging to
same village cannot be preferred over
the
person
belonging
to
Machhua
Community of the Block.

Held- Para 18
Paragraph 5(1) at best can be read as
proviso to the preferences as indicated in
the Government Order. A proviso is
normally not construed as nullifying the
enactment or as taking away completely
a right conferred by the enactment.
Thus,
paragraph
5(1)
cannot
be
construed as changing the preferences
as mentioned in the Government Order.
Persons
belonging
to
Machhua
Community be that of (a) same village
concerned
(b)
concerned
Nyaya
Panchyat or concerned Block are in the
first
category
and
they
will
take
precedence over a member of Schedule
Caste who is in second category, thus,
the petitioner who belongs to Schedule
Caste, cannot be preferred to a person
belonging
to
Machhua
Community
although of concerned Block. Thus the
submission of the learned counsel for the
petitioner that respondent No. 5 could
not have been given preference over the
petitioner, cannot be accepted.
Case Law Discussed:
2006 (1) ALJ 376

(Delivered by Hon'ble Ashok Bhushan, J.)

1. 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.

3. By this writ petition, the
petitioner has prayed for quashing the
order dated 10th March, 2008 passed by
the
Sub
Divisional
Officer,
Mohammadabad, Ghazipur, withdrawing
the approval granted in favour of
petitioner dated 3rd June 2006 and the
order dated 1st April 2008 and 4th April
2 All] Shri Ram V. State of U.P. and others
635
2008 approving the fishery lease in favour
of respondent NO.5.

4. 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 & 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. A
complaint was filed by respondent No.4
to the Sub Divisional Officer against the
approval of lease in favour of 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 followed since there are several
persons
belonging
to
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 petitioner as to why
the approval be not cancelled. The
petitioner filed an objection stating that
auction in favour of petitioner was made
after following the procedure prescribed.
It was 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.
Consequently, a lease was executed in
favour of respondent No.5 on 1st April
2008. The respondent No.5 claims to be a
person belonging to fishing community. It
was further stated that petitioner also filed
a suit on 21.1.2008 in the Court of Civil
Judge for injunction. The respondent No.
5 was impleaded on an application filed
by respondent No.5 himself vide 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.

5. 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.

6. 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
636 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
with the Government Order dated 17th
October 1995.

7.

Learned
counsel
for
the
respondents refuting the submissions of
learned
counsel
for
the
petitioner
contends that the approval granted in
favour of petitioner was withdrawn since
there was no proper publication at the
time of approval in favour of the
petitioner. It is further contended that the
respondent No.5 belongs to Machhua
Community and he being available for
taking the lease, the petitioner was not
eligible person under the Government
Order dated 17th October, 1995.

8. I have considered the submission
of the parties and perused the record. The
grant of lease was approved in favour of
the petitioner by order dated 3rd June
2006. A complaint was submitted by
respondent No. 4 on which, a report was
called from Naib Tehsildar who submitted
his report on 12.12.2007, which has been
filed as Annexure No. 3 to the writ
petition,
which
indicates
that
Naib
Tehsildar recommended for cancellation
of lease in favour of the petitioner
basically on two grounds, firstly, there
was no material that there was proper
publication of the date of auction and
secondly, there being persons belonging
to Machhua Community available, the
petitioner was not an eligible person. The
Sub Divisional Officer in the order dated
10th March 2008 gave two reasons for
withdrawing the approval firstly there is
no
material
that
prior
to
auction,
appropriate publication was made.

9. A Full Bench of this Court in
2006 (1) ALJ 376 Ram Kumar & others
Vs. State of U.P. has laid down that
before settling the fishery lease, proper
publicity of the same is to be done. The
Sub Divisional Officer being satisfied that
there was no publicity of the lease, he was
not powerless to withdraw the approval.
Consequently, the Sub Divisional Officer
took the view that persons of Machhua
Community were available, the grant of
lease in favour of persons belonging to
Scheduled Caste was not correct.

10. The submission which has been
much pressed by the learned counsel for
the petitioner is that when a Scheduled
Caste candidate of the village in question
where the pond is situated is available, a
person belonging to Machhua Community
of the concerned Nyay Panchayat or
Block is not an eligible person and cannot
be preferred.

11. The submission of the learned
counsel for the respondents to the
contrary is that a person of Machhua
Community belonging to the village in
question shall have first preference but
thereafter a person belonging to Machhua
Community of the concerned Nyay
Panchayat and thereafter of the concerned
Block, will be preferred to a person
belonging to Scheduled Caste of the
village in question.

12. For appreciating the above
submission, it is relevant to quote the
relevant provision in the Government
Order dated 17.10.1995 providing for
preference:

"LrEHk&1
Nks gsDVs;j rd ds {ks=Qy ds rkykcksa] iks[kjksa] ehuk'k;ksa ds
fy;sA
1⁄4v1⁄2 lEcfU/kr xkWo lHkk {ks= ds eNqok leqnk; 1⁄4eNqok]
dsoV] fu"kkn] eYykg] fcUn] /khoj] ?khej] d';i] ckFke]
jk;dokj] eka>h] xksfM+;k] 1⁄4dgkj1⁄2 rqjsgk dk rqjkgk vkfnA1⁄2
2 All] Shri Ram V. State of U.P. and others
637
1⁄4c1⁄2 lEcfU/kr U;k; iapk;r ds eNqok leqnk; 1⁄4eNqok] dsoV]
eYykg] fu"kkn] fcUn] /khoj] ?khej] d';i] ckFke] jk;dokj]
eka>h] xksfM+;k] 1⁄4dgkj1⁄2 rqjsgk dk rqjkgk vkfnA

1⁄4l1⁄2 lEcfU/kr fodkl [k.M ds eNqok leqnk; 1⁄4eNqok] dsoV]
eYykg] fu"kkn] fcUn] /khoj] ?khej] d';i] ckFke] jk;dokj]
eka>h] xksfM+;k] 1⁄4dgkj1⁄2 rqjsgk dk rqjkgk vkfnA

2.
1⁄4v1⁄2 lEcfU/kr xkWo lHkk {ks= ds vuqlwfpr tkfr@
tutkfr ds O;fDrA
1⁄4c1⁄2 lEcfU/kr U;k; iapk;r ds vuqlwfpr tkfr@tutkfr ds
O;fDrA
1⁄4l1⁄2 lEcfU/kr fodkl [k.M ds vuqlwfpr tkfr@tutkfr ds
O;fDrA

3. 1⁄4v1⁄2 lEcfU/kr xkWo lHkk {ks= dh eNqok leqnk; dh
lgdkjh lfefr tks lgdkfjrk fu;eksa ds vUrxZr xfBr o
iathd`r gks vkSj eRL; ikyu foHkkx }kjk ekU;rk izkIr gksA
1⁄4c1⁄2 lEcfU/kr U;k; iapk;r {ks= dh eNqok leqnk; dh
lgdkjh lfefr tks lgdkfjrk fu;eksa ds vUrZxr xfBr o
iathd`r gksaA
1⁄4l1⁄2 lEcfU/kr fodkl [k.M Lrj dh eNqok lgdkjh lfefr
tks lgdkfjrk fu;eksa ds vUrZxr xfBr o iathd`r gksaA

4.
1⁄4v1⁄2 lEcfU/kr xkWo lHkk {ks= dh vuqlwfpr@tutkfr
dh iathd`r lgdkjh lfefr;kW tks lgdkfjrk fu;ekuqlkj
xfBr ,oa iathd`r gksaA
1⁄4c1⁄2 lEcfU/kr U;k; iapk;r {ks= dh vuqlwfpr tkfr@tutkfr
dh iathd`r lgdkjh lfefr;kWa tks lgdkfjrk fu;ekuqlkj
xfBr ,oa iathd`r gksaA
1⁄4l1⁄2 lEcfU/kr fodkl [k.M dh vuqlwfpr tkfr@tutkfr
dh iathd`r lgdkjh lfefr;kWa tks lgdkfjrk fu;ekuqlkj
xfBr ,oa iathd`r gksaA

5. izfrcU/k ;g gS fd&

1⁄411⁄2 lEcfU/kr xkWo lHkk {ks= dh fdlh bPNqd O;fDr ds u
gksus ij lEcfU/kr U;k; iapk;r rRi'pkr~ lEcfU/kr fodkl
[k.M vkSj rRi'pkr~ lEcfU/kr tuin ds bPNqd O;fDr dks
iVV~k fn;k tk ldsxkA
1⁄421⁄2 ;fn ojh;rk dze esa ,d ls vf/kd O;fDr@lfefr;kWa
gksa rks muds izkFkZuk&i= izkIr dj fu/kZurk@vko';drk ds
vk/kkj ij iVV~k vkoaVu lfefr }kjk fopkj dj iVV~k
fu"ikfnr fd;k tk;sxkA
1⁄431⁄2 ;fn uhykeh esa fdlh ekeys esa fdlh U;k;ky; }kjk
LFkxukns'k ikfjr dj fn;k tkrk gS rks ml n'kk esa
ijxukf/kdkjh }kjk HkkMs ij eRL; vk[ksV dh O;oLFkk dh
tk;sxhA
----------;gka bldk mYys[k izklafxd gksxk fd mijksDr
O;oLFkk esa fu/kkZfjr ojh;rk dze ds vuqlkj izklafxdrk ds
vk/kkj ij leqfpr vxzsrj dk;Zokgh lqfuf'pr dh tk;sA

13. A perusal of the Scheme of the
Government Order dated 17th October,
1995 as quoted above, indicate that the
person of Machhua Community of the
village has first preference who are in first
category. The persons belonging to
Machhua Community of concerned Block
are also included in first category at Item
No. (b), thus, the first category of the
preference
is
persons
of
Machhua
Community belonging to (a) Village
Gaon
Sabha,
(b)
concerned
Nyay
Panchyat (c) concerned Block.

14. From the material on record, it is
clear that although petitioner is a resident
of village Firojpur Kuli where the pond is
situated but the respondent No. 5 is a
person
belonging
to
Block
Mohammadabad which is concerned
Block and from the Machhua Community.
A person belonging to Scheduled Caste of
the village in question is mentioned at
category 2(a) and, similarly, Scheduled
Caste of concerned Block are at 2(c),
herein the petitioner and respondent No. 5
whose names are included at category
2(a) and 1(c) are claiming rights.

15. Relying on paragraph 5 learned
counsel for the petitioner contends that
since a person belonging to the same
village although a Scheduled Caste is
available, a person of Block even though
belonging
to
Machhua
Community,
cannot be preferred.

16. It is golden rule of interpretation
that a provision of statute have to be so
construed as to give effect to the intent
638 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
and purpose of the statute have to be
given effect to. The object of Government
Order is to give preference to persons of
Machhua Community and Scheduled
Caste. The preferences are divided in
three categories i.e. category-1, category2, category-3. All category has three sub
categories. In case, submission of learned
counsel for the petitioner is accepted that
a person belonging to Scheduled Caste
belonging to same village, has to be
preferred to ,a person of Machhua
Community
and
belonging
to
the
concerned Block, the Government Order
would have included category 2(a) in first
category itself and all the persons and
Cooperative
Societies
of
concerned
village should have been included in
category 1 and the category would have
been thus:
1(a) persons belonging to Machhua
Community of concerned village.
(b) Schedule Caste of concerned village.
(c) Cooperative Society of members of
Machhua
Community
of
concerned
village.
(d) Cooperative Society of Schedule
Caste persons of concerned village.

17. A perusal of Government Order
indicates that the different categories have
been mentioned according to preference
and from paragraph 3 of Government
Order, it is clear that the settlement has to
be
undertaken
in
accordance
with
prescribed
preference.
In
case,
the
submission of learned counsel for the
petitioner is accepted, the preferential
category have to be re-written.

18. Paragraph 5(1) at best can be
read as proviso to the preferences as
indicated in the Government Order. A
proviso is normally not construed as
nullifying the enactment or as taking
away completely a right conferred by the
enactment. Thus, paragraph 5(1) cannot
be construed as changing the preferences
as mentioned in the Government Order.
Persons
belonging
to
Machhua
Community be that of (a) same village
concerned (b) concerned Nyaya Panchyat
or concerned Block are in the first
category and they will take precedence
over a member of Schedule Caste who is
in second category, thus, the petitioner
who belongs to Schedule Caste, cannot be
preferred to a person belonging to
Machhua
Community
although
of
concerned Block. Thus the submission of
the learned counsel for the petitioner that
respondent No. 5 could not have been
given preference over the petitioner,
cannot be accepted.

19. In view of the foregoing
discussions, the petitioner is not entitled
for any relief in this writ petition. The
writ petition is accordingly, dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.07.2008

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application 18374 of 2008

Ashok Kumar Tiwari & others ...Applicants
Versus
State of U.P. & another...Opposite Parties

Counsel for the Applicants:
Sri. Satish Trivedi
Sri. Lalit Singh

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section-482quashing
of
criminal
proceedings-on