# Sri Shiv Lal Pal v. District Magistrate, Mirzapur and others

- **Citation:** (2004) 1 ILRA 183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-03-18
- **Case number:** Civil Misc. Writ Petition No. 39749 of 1999
- **Bench:** V.M. Sahai, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-shiv-lal-pal-v-district-magistrate-mirzapur-and-others-40319
- **Pages:** 4

## Headnote

Sri V.K. Singh
Sri Y.D. Mohan
S.C.

U.P. Gaon Sabha and Bhumi Prabandhak
Mandal- Para 60 (2) (Kha)-Grant of lease
http://www.allahabadhighcourt.nic.in
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
fishery right by S.D.M.- jurisdiction-
Held, Para 60 (2) (Kha) of Manual
employees S.D.O. to grant fishery lease
even
without
consulting
Land
Management Committee - said para also
protects customary rights of irrigation
etc. from Ponds.

Held: Para 10 & 12

It
is
thus
clear
that
paragraph
60(2)(Kha) of the Manual empowers the
Sub Divisional Officer to grant fishery
lease even without consulting the Land
Management committee. In view of the
aforesaid
legal
provisions
the
first
contention of the learned Counsel for the
petitioner, that fishery lease can only be
granted
by
the
Land
Management
Committee and respondent no. 2 has not
jurisdiction, is liable to be rejected.

The last submission advanced by the
learned counsel or the petitioner, that
since pond in question is the only source
of irrigation and has always been used
for the said purpose as such it cannot be
leased to be rejected. Paragraph 60(2)
(kha)
of
the
manual
protects
the
customary rights of washing cloths,
excavation of earth and irrigation etc.
from the pond and tank leased out for
fishing rights. Thus lease in favour of
respondent no. 3 being subject to and
without prejudice to the customary
rights of irrigation from the pond in not
liable to be cancelled, on the ground that
it affects the right of irrigation.
Case law discussed:
1997 (3) AWC 1965

## Text

1 All] Sri Shiv Lal Pal V. District Magistrate, Mirzapur and others 183
against the provisions of the rules. The
arguments of the learned counsel for the
appellant is devoid of any merit.

7. From a perusal of the appointment
letter [Paper No.47-C], which has been
filed by the defendants before the Court
below, it is clear that the appointment
letter issued in favour of the plaintiff was
issued by the Assistant Security Officer.

8. The contention of the learned
counsel for the appellant that the
appointment letter was issued by the
Chief Security Officer is therefore,
incorrect. Since the appointment letter
was issued by the Assistant Security
Officer, he being the appointing authority
was empowered to issue an order of
removal of service of the plaintiff. In the
present case, the order of removal was
passed by the Assistant Security Officer.
Thus, I hold that the Assistant Security
Officer was the appointing authority of
the plaintiff and was empowered to pass
an order of removal of service of the
plaintiff.

9. Sri Lal Ji Sinha, the learned
Senior Counsel for the opposite parties
has invited my attention to a judgment of
the Supreme Court in Union of India v.
Rajendra Singh reported in AIR 1993
SC 205 wherein the Supreme Court held
that the power of appointment of a
Rakshak does not vest merely with the
Chief Security Officer, but also gives
power to the Assistant Security Officer to
appoint a Rakshak.

10. Learned counsel for the
appellant further submitted that the
appointment letter filed by the opposite
party was not admitted by him and
therefore, the said document cannot be
taken into consideration. This contention
of the learned counsel for the appellant is
devoid of any merit. Section 139 of the
Indian Railways Act 1890 provides that
entries in the records or other documents
of a Railway Administration can be
proved either by the production of the
records or other documents or by the
production of a copy of the entries
certified by the Officer having custody of
the records. In the present case copy of
the appointment letter, filed by the
defendants, had been certified by the
Assistant Security Officer himself and the
said document has been duly proved.

11. In view of the aforesaid, there is
no merit in the appeal and is dismissed. In
the circumstances of the case, the parties
shall bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.3.2004

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 39749 of 1999

Sri Shiv Lal Pal

...Petitioner
Versus
District Magistrate, Mirzapur and others

 ...Respondents

Counsel for the Petitioner:
Sri Rahul Sripat
Miss Suman Jaiswal

Counsel for the Respondents:
Sri V.K. Singh
Sri Y.D. Mohan
S.C.

U.P. Gaon Sabha and Bhumi Prabandhak
Mandal- Para 60 (2) (Kha)-Grant of lease
http://www.allahabadhighcourt.nic.in
184 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
fishery right by S.D.M.- jurisdiction-
Held, Para 60 (2) (Kha) of Manual
employees S.D.O. to grant fishery lease
even
without
consulting
Land
Management Committee - said para also
protects customary rights of irrigation
etc. from Ponds.

Held: Para 10 & 12

It
is
thus
clear
that
paragraph
60(2)(Kha) of the Manual empowers the
Sub Divisional Officer to grant fishery
lease even without consulting the Land
Management committee. In view of the
aforesaid
legal
provisions
the
first
contention of the learned Counsel for the
petitioner, that fishery lease can only be
granted
by
the
Land
Management
Committee and respondent no. 2 has not
jurisdiction, is liable to be rejected.

The last submission advanced by the
learned counsel or the petitioner, that
since pond in question is the only source
of irrigation and has always been used
for the said purpose as such it cannot be
leased to be rejected. Paragraph 60(2)
(kha)
of
the
manual
protects
the
customary rights of washing cloths,
excavation of earth and irrigation etc.
from the pond and tank leased out for
fishing rights. Thus lease in favour of
respondent no. 3 being subject to and
without prejudice to the customary
rights of irrigation from the pond in not
liable to be cancelled, on the ground that
it affects the right of irrigation.
Case law discussed:
1997 (3) AWC 1965

(Delivered by Hon'ble Krishna Murari, J.)

1. By means of this petition filed
under Article 226 of the Constitution of
India, the petitioner has prayed for
quashing of lease of fishing rights in plot
no. 52 area 1.896 hectare situate in village
Tendua Kalan District Mirzapur executed
in favour of respondent no. 5. The
petitioner has also prayed for a writ of
mandamus commanding the respondent
authorities not to make any allotment of
the said pond to any person for any
purpose other than irrigation.

2. We have heard Miss Suman
Jaiswal, learned counsel for the petitioner
and Sri Y.D. Mohan, holding brief of Sri
V.K. Singh counsel for the respondent
and the learned Standing Counsel.

3. The fishery lease granted to
respondent no. 5 has been challenged on
the ground that respondent no.2, Sub
Divisional Magistrate has no power to
jurisdiction to grant any lease , and under
the provisions of U.P.Z.A. & L.R. Act the
said power is vested only in the Land
Management Committee.

4. It has further been contended that
lease has been executed by the respondent
no. 2 without inviting any tender or
following any procedure. The pond in
dispute has always been used for
irrigation purpose and there being no
other source of irrigation the pond could
not have been allotted for fishing. It has
also been urged that Gaon Sabha passed
an unanimous resolution dated 30.8.99 to
the effect that pond in question may be
kept reserved only for irrigation purposes
and may not be allotted to any person.

5. A counter affidavit has been filed
on behalf of the respondent no. 5 denying
the aforesaid allegations. It has been
stated in the counter affidavit that date of
auction was well advertised and a large
number of persons participated. The
respondent was the highest bidder and
thus lease was executed in her favour. The
fact that pond in question is the only
source of irrigation has also been denied
in the counter affidavit that a large
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1 All] Sri Shiv Lal Pal V. District Magistrate, Mirzapur and others 185
number of members of Gaon Panchayat
filed affidavits before Sub Divisional
Officer, stating therein that there exists no
resolution dated 30.8.99 and there is no
objection to the settlement of lease rights
for fishing in favour of respondent no. 5.

6. Lease of fishing rights in any
pond and tank vested in Gaon Sabha is
regulated by the Provisions of U.P.Z.A.&
L.R. Act (for short the Act) and rules
framed
there
under
and
various
government orders issued on the subject
and contained in Paragraph 60 of U.P.
Gaon Sabha and Bhumi Prabandhak
Manual (for short the manual). The
Manual is a compilation of various orders
and Directions issued by the State
government from time to time under the
provisions of the Act and the Rules.

7. Section 126 (1) of the Act
empowers the State Government to issue
such order and direction to the Land
Management Committee relating to its
directions
of
Land
Management
Committee relating to its function as
enumerated under Section 28-B of U.P.
Panchayat Raj Act which includes within
its ambit the development of fisheries,
ponds and tanks. Explanation 1 to Rule
115-B of
the Rules
provides
that
directions contained in the Manual shall
be deemed to be directions issued in
accordance with Rule 115-A.

8. Thus, in view of Section 126 of
the Act read with Rule 115-A and 115-B
of the Rules, orders and directions issued
by the State Government contained in the
Manual are statutory in nature and have
the force of law. Our view finds support
from another Division Bench decision of
this Court in the case of Gram panchayat
Kanta Guljarpur Unnao Vs. Collector
Unnao and others reported in 1997 (3)
AWC 1965 wherein, it has been held that
the provisions of paragraph 60 of the
Gaon Sabha Manual have statutory force.

9. Complete procedure for grant of
fishing lease in contained in paragraph 60
(2) (kha) of the Manual as amended from
time to time by various government
orders and directions issued on the
subject. It provides that lease of fishery
rights as far as possible, may be settled in
camps organized for the purpose at Tehsil
level by Sub Divisional Officer in
consultation with the Land Management
Committee. However, in cases, where
either the Land Management Committee
is unable to settle fishery lease or the Sub
Divisional Officer considers it fit to do so
he can grant lease even without any
resolution of the Land Management
Committee. It is further provided that any
customary rights of washing cloths,
irrigation, excavation of earth etc from the
pond or tank shall continue as usual and
settlement of fishing rights shall not in
any manner affect such customary rights
shall not in any manner affect such
customary rights. It also provides that
lease deed shall contain a condition that
lessee shall not interfere in any such
customary rights.

10. It is thus clear that paragraph 60
(2) (Kha) of the Manual empowers the
Sub Divisional Officer to grant fishery
lease even without consulting the Land
Management committee. In view of the
aforesaid
legal
provisions
the
first
contention of the learned Counsel for the
petitioner, that fishery lease can only be
granted
by
the
Land
Management
Committee and respondent no. 2 has not
jurisdiction, is liable to be rejected.

http://www.allahabadhighcourt.nic.in
186 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
11. The next contention advanced on
behalf of the petitioner pointing out
various defects in the procedure adopted
by respondent no. 2 in the process of
granting lease to the petitioner are factual
in nature. No material has been brought
on record of the writ petition to
substantiate
the
allegations.
The
resolution of gaon sabha dated 30.8.99 for
keeping the pond reserved for irrigation
purpose have not only been denied by the
respondent no. 5 in the counter affidavit
but affidavit of members of Gram
panchayat have also been filed along with
counter affidavit stating that the said
resolution dated 30.9.99 is farzi and
manufactured and as a matter of fact, no
such resolution was ever passed. All these
are disputed questions of fact which
cannot be gone into by us while
exercising the powers conferred by
Article 226 of the Constitution.

12. The last submission advanced by
the learned counsel or the petitioner, that
since pond in question is the only source
of irrigation and has always been used for
the said purpose as such it cannot be
leased to be rejected. Paragraph 60(2)
(kha)
of
the
manual
protects
the
customary rights of washing cloths,
excavation of earth and irrigation etc.
from the pond and tank leased out for
fishing rights. Thus lease in favour of
respondent no. 3 being subject to and
without prejudice to the customary rights
of irrigation from the pond in not liable to
be cancelled, on the ground that it affects
the right of irrigation.

13. In view of the aforesaid
discussion the reliefs prayed for in the
writ petition cannot be granted. The writ
petition
fails
and
is
accordingly,
dismissed.
14. However, in the facts and
circumstances, there shall be no order as
to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.3.2004

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 11625 of 2004

The Committee of Management and
another

 ...Petitioners
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioners:
Sri Yatindra

Counsel for the Respondents:
Sri I.R. Singh
S.C.

Societies Registration Act, 1860-S. 12-D-
Appeal
before
Commissioner-
Maintainability- Grant of renewal and
registration of list of management of
society by Assistant Registrar- Order set
aside in appeal by Commissioner- Writ
against-In view of S. 12-D of the Act, no
appeal has against order impugned-
impugned order passed in appeal by
Commissioner held without jurisdiction.

Held: Para 4

Learned counsel appearing on behalf of
the petitioner argued that in view of the
provisions
of
Section
12-D
of
the
Societies Registration Act, 1860, no
appeal lies against the order impugned
in the present writ petition, is wholly
without jurisdiction. A perusal of the
Section
12-D
of
the
Societies
Registration
Act,
1860,
referred
to
above, clearly demonstrate that the
contention of learned counsel for the
petitioners has substance.

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