# State of U.P v. M. Padmanabhan

- **Citation:** (2006) 1 ILRA 371
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-29
- **Bench:** Ajoy Nath Ray, Cj. R.K. Agarwal, Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-m-padmanabhan-40860
- **Pages:** 23

## Headnote

Sri S.M.A. Kazmi
Sri G.N. Verma
Sri R.V. Singh
Sri L.P. Tiwari
Sri Sankatha Rai
S.C.

(A) High Court Rules-Chapter V Rule 6Practice of Procedure-Division Bench
decision of Coordinate jurisdiction- in a
case of disagreement-the question be
referred to larger Bench.

Held: Para 4

So far as
first
two questions are
concerned, we answer those in the
affirmative, i.e., a Division Bench seeking
to disagree with an earlier Division
Bench cannot do it itself, but it can
record
its
desire
to
disagree
and
thereafter call for a reference to a Larger
Bench. Following authorities might be
referred to in this regard; (1975) 2 SCC
232; (Mamleshwar Prasad v. Kanhaiya
Lal), (1997) 10 SCC 258, (State Bank of
India
and
others
Versus
Labour
Enforcement
Officer
(Central)
and
another) (2003) 5 SCC 448, especially at
page 454 (State of Bihar Versus Kalika
Kuer Alias Singh and others) and (2001)
6 SCC 356, especially at paragraph 22
(Fuerst Day Lawson Ltd. Versus Jindal
Exports Ltd.).
Case law discussed:
1975 (2) SCC-232
1997 (10) SCC-258
2003 (5) SCC-448
2001 (6) SCC-356

(B) Gaon Sabha Manual-Para 60-2 (kha)-
Renewal of lease-for fisheries rights over
the Ponds situated within the territorial
limit of
concerned
Gaon Sabha-Full
Bench has correctly held ultra vires-in
feru's case

Held: Para 16

From the perusal of the abovequoted
judgment, it is clear that Full Bench only
examined the clause for renewal of lease
and observations made by the Full Bench
were for purposes of holding the renewal
clause as ultra vires. With respect, we
are of the same view with regard to
renewal clause as expressed by the Full
Bench
in
Feru's
case
(supra).
The
renewal of lease is impermissible and
renewal
clause
as
contained
in
paragraph 60(2)(kha) of Gaon Sabha
Manual has correctly been held to be
ultra
vires
to
Article
14
of
the
Constitution.
1997 R.D.-157
1973 AWC-1665
1995 ACJ-1066
1997 (88) RD-656
1990 RD-385
1999 RD-186
2004 (96) 645 (FB)

(C)
Constitution
of
India
Art.
19readwith U.P.Z.A. & L.R. Act 1950-S.-
126-Reasonalble
restrictions-
of
Government Order providing preferential
rights-cooperative Society of fishermen
or
other
similar
communities-heldproper-mere getting more revenue is

## Text

_Characters 0–39,770 of 75,430. This is a partial read: ask again with offset=39770 for what follows._

1 All] Ram Narain Tripathi V. State of U.P. and others
371
post retirement benefits was payable to
the petitioner with effect from the date of
his retirement, but the same was not paid.
The only ground alleged was that the
respondents did not have the finance to
pay the post retirement benefits. In my
opinion, this cannot be a ground for not
releasing the post retirement benefits. In
State of U.P. vs. M. Padmanabhan
Nair, 1985 (1) SCC 429, the Supreme
Court held that the pension and gratuity
are no longer a bounty to be distributed by
the Government to its employees on their
retirement and that the pension and
gratuity are valuable rights and property
in their hands and that any culpable delay
in the settlement and disbursement of the
post retirement benefits must be visited
with the penalty and payment of interest
at the current market rate till the date of
the actual payment.

7. In H. Gangahanume Gowda vs.
Karnataka
Agro
Industries
Corporation Ltd, 2003(3) SCC 40, the
Supreme Court held that if there was a
delay on the part of the employer in not
releasing the post retirement benefits, it
was mandatory for the Court to award
interest. Similar view was also given by
this Court in Tirath Raj Upadhyay vs.
State of U.P. and others, 2004 (2)
UPLBEC 1652 as well as in R. Kapur vs.
Director of Inspection (Painting and
Publication)
Income
Tax
and
another,1994(6)SCC 589.

8. In view of the aforesaid decisions,
it does not lie in the mouth of the
respondents to contend that they do not
have the finance to pay the post
retirement benefits. Consequently, in the
opinion of the Court, since the post
retirement benefits has been paid after a
period of 10 years and the delay was
without any justification, consequently,
the respondents are liable to pay penal
interest. Since the post retirement benefits
is the lifeline for a person after his
retirement, the non-disbursement of the
post retirement benefits clearly and
squarely infringes the fundamental right
under Article 21 of the Constitution of
India to a citizen to live a life of
retirement with dignity. The petitioner
was made to run from pillar to post by the
respondents without any justification.
Consequently, the petitioner is not only
entitled for interest but also cost of this
litigation.

9. In my opinion, remitting the
matter back to the authorities to calculate
the interest would serve no useful purpose
as it would further delay and harass the
petitioner who has now reached the age of
75 years. If the amount had been released
by the respondents immediately after the
retirement of the petitioner, the petitioner
would have earned some interest if the
same was invested. Even if this Court
awards interest @ 10% per annum, the
minimum amount towards interest would
come to approximately Rs.35,000/-. The
petitioner is also entitled for cost of
litigation and for the mental harassment
that
he
underwent.
Consequently,
considering the entire matter, this Court
quantifies the interest as well as cost at
Rs.50,000/-. This amount shall be paid
without any further delay within two
months from the date a certified copy of
this judgment is produced before the
authority concerned.

10. The writ petition stands allowed.
Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
372 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
DATED: ALLAHABAD 29.09.2005

BEFORE
THE HON'BLE AJOY NATH RAY, CJ.
THE HON'BLE R.K. AGARWAL, J
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 23932 of 2001

Ram Kumar and others ...Petitioners
Versus
The State of U.P. & others ...Respondents

Counsel for the Petitioners:
Sri Kamlesh Chandra Srivastava
Sri Rajesh Kumar Srivastava
Sri Alok Kumar Yadav

Counsel for the Respondents:
Sri S.M.A. Kazmi
Sri G.N. Verma
Sri R.V. Singh
Sri L.P. Tiwari
Sri Sankatha Rai
S.C.

(A) High Court Rules-Chapter V Rule 6Practice of Procedure-Division Bench
decision of Coordinate jurisdiction- in a
case of disagreement-the question be
referred to larger Bench.

Held: Para 4

So far as
first
two questions are
concerned, we answer those in the
affirmative, i.e., a Division Bench seeking
to disagree with an earlier Division
Bench cannot do it itself, but it can
record
its
desire
to
disagree
and
thereafter call for a reference to a Larger
Bench. Following authorities might be
referred to in this regard; (1975) 2 SCC
232; (Mamleshwar Prasad v. Kanhaiya
Lal), (1997) 10 SCC 258, (State Bank of
India
and
others
Versus
Labour
Enforcement
Officer
(Central)
and
another) (2003) 5 SCC 448, especially at
page 454 (State of Bihar Versus Kalika
Kuer Alias Singh and others) and (2001)
6 SCC 356, especially at paragraph 22
(Fuerst Day Lawson Ltd. Versus Jindal
Exports Ltd.).
Case law discussed:
1975 (2) SCC-232
1997 (10) SCC-258
2003 (5) SCC-448
2001 (6) SCC-356

(B) Gaon Sabha Manual-Para 60-2 (kha)-
Renewal of lease-for fisheries rights over
the Ponds situated within the territorial
limit of
concerned
Gaon Sabha-Full
Bench has correctly held ultra vires-in
feru's case

Held: Para 16

From the perusal of the abovequoted
judgment, it is clear that Full Bench only
examined the clause for renewal of lease
and observations made by the Full Bench
were for purposes of holding the renewal
clause as ultra vires. With respect, we
are of the same view with regard to
renewal clause as expressed by the Full
Bench
in
Feru's
case
(supra).
The
renewal of lease is impermissible and
renewal
clause
as
contained
in
paragraph 60(2)(kha) of Gaon Sabha
Manual has correctly been held to be
ultra
vires
to
Article
14
of
the
Constitution.
1997 R.D.-157
1973 AWC-1665
1995 ACJ-1066
1997 (88) RD-656
1990 RD-385
1999 RD-186
2004 (96) 645 (FB)

(C)
Constitution
of
India
Art.
19readwith U.P.Z.A. & L.R. Act 1950-S.-
126-Reasonalble
restrictions-
of
Government Order providing preferential
rights-cooperative Society of fishermen
or
other
similar
communities-heldproper-mere getting more revenue is not
only the object-does not violate the
rights
of
any
person-settlement
of
fisheries rights by way of auction-does
not lay down correct law.
1 All] Ram Kumar and others V. The State of U.P. and others
373
Held: Para 26 & 27

From the above pronouncements made
by the apex Court, it is well settled that
restrictions imposed to give effect to the
constitutional goals as laid down in
Directive Principles of State Policy are
restrictions with intention to give certain
benefits to weaker section of the society
which are reasonable restrictions which
does not infringe any right of individual
citizen under Article 19(1)(g). The rights
under Article 19(1)(g) are not absolute
rights. As noted above, every individual
has also right of consideration but
according to preference laid down in the
Government orders issued under Section
126 of the 1950 Act. The preferences
have been provided in the scheme of the
Government with object of providing
livelihood to fishermen and fishermen
cooperative societies. The view of the
Division Bench in Panchoo's case (supra)
and other cases that unless fishing right
is not settled by auction it will violate
Article 19(1)(g) is not correct. The
settlement of fishing right by auction will
necessarily be in favour of a person
giving highest bid. The big contractors
and moneyed persons will steal a march
over poor fishermen and other poor
people of the village who are unable to
organise
themselves
and the result
would be that a sizeable section of
fishermen and other communities will be
deprived of their livelihood. To stop the
settlement from going into the hands of
big contractors and middlemen, the
scheme was enforced by the State
Government. The scheme has rational
nexus with the object sought to be
achieved and the persons for whose
benefits the scheme has been framed
definitely falls in a separate class having
intelligible differentia. The settlement of
fishing right in ponds and tanks by public
auction cannot be held to serve the
purpose and object nor the same can
carry forward the goals as laid down in
the Directive Principles of State Policy.
Mere getting more revenue by public
auction is not only object for letting out
the fishing right. The objective as
displayed from the directions of the
State Government under Section 126 of
1950 Act is to provide livelihood to
fishermen and other similar communities
and also to give preference to the
cooperative societies of such fishermen
so that they may organise themselves
and carry on their traditional vocation
for the benefit of large part of weaker
section of the society.

We are, thus, of the clear opinion that
the directions
issued by the State
Government under Section 126 of 1950
Act read with Rule 115-A of 1952 Rules,
as noted above, does not violate rights of
any person under Article 19(1)(g) and
Article 14 of the Constitution of India
and the view expressed by the Division
Bench in Panchoo's case (supra) and
Abdul Gaffar's case (supra) in so far as
they hold the settlement of fishing right
only by way of public auction does not
lay down the correct law. As noted
above,
the
view
in
the
aforesaid
judgments as well as the view expressed
in Ajai Sonkar's case (supra) and in Gram
Panchayat Kanta's case (supra) that the
renewal of lease is not permissible is
absolutely correct and the same view has
found
favour
with
the
Full
Bench
judgment of this Court in Feru's case
(supra).
Case law discussed:
1992 ALJ 482
1994 (1) SCC-301
1993 (2) SCC-221
1978 (2) SCC-1
1988 UPLBEC-487

(D) U.P.Z.A. & L.R. Act-S-126-Settlement
of
property
vested
in
Gaon Sabha
fisheries Rights over the ponds, tankssituated within territorial limit of Gaon
Sabha-S.D.O. should publish in a news
papers having vide circulation-inviting
bids by tender on auction not prohibitedwhere
more
than
one
person
in
particular category of preference are
there.

Held: Para 29 & 32
374 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
As a general rule the Sub Divisional
Officer should publish in a newspaper
having wide circulation of the settlement
of fishing right to enable all concerned to
participate. As observed above, in the
event there are more than one person in
one particular category of preference,
the
Sub
Divisional
Officer
is
not
prohibited to award the said fishing right
by inviting bids by tender or auction.

Whereas in the present case, as held by
us, the direction issued by the State
Government under Section 126 of 1950
Act is a scheme for promotion of social
justice and providing for employment to
large section of weaker section of the
society. Thus the judgment of Full Bench
in Ram Chandra's case (supra) is clearly
distinguishable and is not attracted in
the present case.
Case law discussed:
1992 ALJ 482

(E) U.P.Z.A. & L.R. Act-Section 126Revision-cancellation
of
lease
for
exercising fishers Rights or refusing to
cancel
the
lease
by
collector-heldamendable to revisional jurisdiction.

Held: Para 35
The
Collector
when
considers
an
application for cancellation of fishery
lease, it decides a lis between parties
and act as revenue Court. The order
passed by Collector cancelling a fishery
lease or refusing to cancel a fishery lease
is, thus, clearly amenable to revisional
jurisdiction as provided under 1950 Act.
1950 Act being a complete code, the
remedy with regard to fishery lease has
to be first obtained under the four
corners of the Act and Rules. Learned
single Judge has referred to Section 122C sub-sections 6 & 7 which has no
applicable in the present case. Section
122-C relates to allotment of land for
housing site to member of scheduled
caste, agricultural labour etc. The said
provision is not attracted.
1986 ALJ 188
1997 (5) SCC-536

Transfer of Property Act-Section-117Registration of lease deed-for exercising
fisheries right over the ponds and tankssettlement
of
fisheries
rights-heldsettlement of property-is a right in I
immovable property-left open to the
government to issue notification for
exemption from compulsory registration.

Held: Para 39

The settlement of fishery rights is
settlement of property and is a right in
immovable property in the nature of a
"profit a prendere" These rights have
always been held as registrable and do
not cease to be so merely because the
grant is being made by or at the instance
of the State Government. Question No.8
is
accordingly
answered
in
the
affirmative. However, we also make it
clear that fishery right being obviously
for purposes which are agricultural
within the meaning of Section 117 of the
Transfer of Property Act, it would be
open to the State Government to issue
appropriate notification for taking those
outside
the
purview
of
compulsory
registration.
If
such
notification
is
issued, the same would be followed, but
without such notification the necessity of
registration remains.
Case law discussed:
1975 (2) SCC-232
1997 SCC (10)258
2003 (5) SCC-448
2001 (6) SCC-356
1997 R.D.-157
1997 (3) AWC-1665
1995 ACJ-1066
1997 (88) RD-656
1990 RD-385
1999 RD-186
1988 UPLBEC-487
1978 (2) SCC-1
1993 (2) SCC-221
1994 (1) SCC-301
1992 ALJ-482
1994 (1) CRC 53
1986 ALJ-188
1997 (5) SCC-536
AIR 1977 Alld. 360
1997 (2) UPLBEC-872
1 All] Ram Kumar and others V. The State of U.P. and others
375

(Delivered by Hon'ble Ajoy Nath Ray, C.J.)

1. We have heard Sri Alok Kumar
Yadav, learned counsel appearing on
behalf of the writ petitioners, Sri S.M.A.
Kazmi, learned Chief Standing Counsel
and Sri R.V. Singh, learned standing
counsel appearing on behalf of the State.

2. This Full Bench has been
constituted on a reference made to it by a
learned single Judge vide its referring
order dated 25th September, 2001 passed
in this writ petition.

3. Learned single Judge found
conflict in judgment of Division Benches
which necessitated the reference. The
following eight questions have been
referred to this Full Bench:-

(i)
Whether judicial propriety demands
that if a Bench of High Court is
unable to agree with the decision
already
rendered
by
earlier
Division
Bench
of
co-ordinate
jurisdiction,
the
question
of
disagreement should be referred to
a Larger Bench under Chapter V
Rule 6 of the Rules of the Court,
1951?

(ii)
Whether the decisions rendered in
former two Division Benches in the
case of Ajai Shanker (supra), which
were brought to the notice of
learned
Judges
constituting
Division Bench in case of Panchoo
(supra), the latter Division Bench
instead of disagreement with ratio
decidendi of two former Division
Benches, it ought to have referred
the same to a larger Bench of this
Court?

(iii) Whether Article 14 and Article
19(1)
(g)
of
the
Constitution
postulate
a
reasonable
classification to ameliorate the
economic
condition
of
weaker
section of society of fishermen
community
enumerated
under
Paragraph 62 (2) (kha) of Gaon
Sabha
Manual
and
also
for
elimination of middlemen to save
the said weaker section of society
from exploitation as the Directive
Principles embodied the ideal of
socio economic justice as assured
in the preamble of the Constitution
and the Courts are to adopt the
principle
of
harmonious
interpretation of Article 14 and 19
(1) (g) of the Constitution so as to
give effect to the Fundamental
rights
as
well
as
Directive
Principles of State Policy?

(iv)
Whether in view of the State List of
Seventh
Schedule
Item
No.21
empowers State Legislature to enact
on the subject of fisheries, placing
U.P. Act No.1 of 1951, with Ninth
Schedule of the Constitution and the
mandatory
provisions
enshrined
under Article 243-G read with Item
No.5 of Eleventh Schedule which
includes settlement of fisheries of
the ponds and tanks vested in Gaon
Sabha with powers, authority and
responsibility of Panchayat, the
preparation of plans for economic
development and social justice and
the implementation of scheme for
economic development and social
justice as entrusted to them under
Paragraph 60 (2) (Kha) of Gaon
Sabha Manual issued by the State
Government in exercise of its power
376 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
under Section 126 of U.P. Act No.1
of 1951 and the Rules framed
thereunder are sacrosanct being
policy of affirmative action of the
State
Government
giving
Distributive justice to the weaker
section of society and to protect
them from social injustice and all
forms of exploitation?

(v)
Whether the decision rendered by
learned Single Judge in case of
Man
Singh
(supra)
conferring
jurisdiction upon Sub Divisional
Officer and Collector both for
cancellation of Patta of fishery
right making the order of Collector
revisable requires reconsideration
in view of sub-sections (6) and (7)
of Section 122-C of U.P. Act No.1
of 1951 and decision rendered by
Supreme
Court
in
case
of
Dhulabhai (supra)?

(vi)
Whether jurisdiction of Civil Court
is expressly barred to cancel the
fisheries
rights
granted
under
paragraph 60(2) (Kha) of Gaon
Sabha Manual and the decision
rendered by Division Bench of this
Court in case of Todi (supra)
requires reconsideration in view of
decision rendered by Full Bench of
this Court in case of Similesh
Kumar (supra) ?

(vii) Whether rights of appeals and
revisions are creation of statute and
once statutory provisions indicate
the manner of settlement of dispute,
no other authority including Civil
Court
has
jurisdiction
to
readjudicate
the
matter
covered
thereby?

(viii) Whether leases of rearing of fishes
in ponds and tanks vested in Gaon
Sabha under Section 117 of U.P.
Act No.1 of 1951 fall within the
meaning of agricultural land as
defined under Section 3(14) of the
said Act and such leases are
exempted from Registration as
envisaged under Section 117 of
Transfer of Property Act?

4. So far as first two questions are
concerned, we answer those in the
affirmative, i.e., a Division Bench seeking
to disagree with an earlier Division Bench
cannot do it itself, but it can record its
desire to disagree and thereafter call for a
reference to a Larger Bench. Following
authorities might be referred to in this
regard; (1975) 2 SCC 232; (Mamleshwar
Prasad v. Kanhaiya Lal), (1997) 10 SCC
258, (State Bank of India and others
Versus Labour Enforcement Officer
(Central) and another) (2003) 5 SCC
448, especially at page 454 (State of
Bihar Versus Kalika Kuer Alias Singh
and others) and (2001) 6 SCC 356,
especially at paragraph 22 (Fuerst Day
Lawson Ltd. Versus Jindal Exports
Ltd.).

5. Before the learned single Judge
bunch of writ petitions were posted, Writ
Petition No. 23932 of 2001 being leading
writ petition, arising out of various orders
passed
by
Sub
Divisional
Officers
granting fishery leases, refusing to renew
fishery leases and in some of the writ
petitions question was involved as to
which is the appropriate forum for
cancelling the fishery lease granted under
the provisions of the Uttar Pradesh
Zamindary Abolition and Land Reforms
Act,
1950
and
the
rules
framed
thereunder. It is necessary to note the
1 All] Ram Kumar and others V. The State of U.P. and others
377
relevant provisions of Uttar Pradesh
Zamindary Abolition and Land Reforms
Act, 1950 (hereinafter referred to as 1950
Act) and the rules and other relevant
provisions relating to grant of fishery
lease.

6. Under Section 117 of 1950 Act,
the State Government may declare that
the things mentioned therein, which had
vested in the State, shall vest in the Gaon
Sabha or any other local authorities. In
this writ petition we are concerned with
fishery which has been vested in the Gaon
Sabha by virtue of notification of the
State Government under Section 117 of
1950 Act. According to Section 122-A of
1950
Act
general
superintendence,
management, preservation and control of
all the land, forests, fisheries, tanks,
ponds, water channels, pathways, abadi
site and hats, bazars and melas vested in
the Gaon Sabha are under the charge of
Land
Management
Committee.
The
functions
and
duties
of
the
Land
Management
Committee
include
development of animal husbandry which
include pisciculture. Under Section 28-B
of the U.P. Pranchayat Raj Act, 1947,
Bhumi Prabandhak Samiti is charged with
the general management, preservation and
control of all the properties as referred to
under
Section
28-A
of
the
U.P.
Pranchayat Raj Act, 1947 including the
maintenance and development of the
fisheries and tanks. Section 126 of the
1950 Act is extracted below:-

"126. Gaon Panchayat or the
Committee to carry on orders and
directions of the State Government.-(1)
The State Government may issue sucyh
orders and directions to the [Land
Management Committee] as may appear
to be necessary for purposes of this Act.

(2) It shall be the duty of the [Land
Management Committee] and [its] office
bearers to forthwith carry out such orders
and comply with such directions.

7. Rules framed under the 1950 Act,
namely,
Uttar
Pradesh
Zamindari
Abolition & Land Reforms Rules, 1952
(hereinafter referred to as 1952 Rules),
provide for mode of settlement of land,
abadi sites and other properties vested in
Gaon Sabha. Rule 115-A of 1952 Rules
empowers the State Government to issue
direction to Bhumi Prabandhak Samiti.
Rule 115-A of 1952 Rules is extracted
below:-

"[115-A. The State Government may issue
directions to the Bhumi Prabandhak
Samities (Land Management Committees)
established under Section 28-A of the
U.P. Pranchayat Raj Act, 1947, on the
following among other matters:-

(1) land
management,
including
preservation of land for purposes of
public utility;

(2) expenditure of the amount placed at
the disposal of the Bhumi Prabandhak
Samiti by the Gaon Panchayt; and

(3) matters relating to the functions of
the Bhumi Prabandhak Samitis as laid
down in Section 28-B of the U.P.
Pranchayat Raj Act, 1947, in so far they
appear necessary for the purposes of the
Act]"

8. Rule 115-S of 1952 Rules
provides for manner and procedure for
grant of lease and licence in respect of
any property vested in the Gaon Sabha.
Rule 115-S(1) specifically provides that
378 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
no lease or licence shall be made in
favour of a person except by public
auction held in accordance with the
procedure given thereunder. However,
Rule 115-S(1) has a proviso which is of
following effect:-

[115-S. (1). .......................

Provided that the provisions of this
rule shall not apply to

(i) cases of allotment of agricultural
land and abadi sites covered by Rules 173
to 177 and Rules 115-L to 115-R,
respectively; and

(ii) cases in which the State Government
issue directions under Section 126 of the
Act read with Rules 115-A and 115-B] :

Provided further that in case of
perennial tanks of three or more acres in
ara, the Land Management Committee
may, with the previous permission of the
Assistant Collector-in-Charge of the subdivision concerned, grant a lease for a
period not exceeding seven years in
favour of one or more than one fisherman
residing within the circle of the Gaon
Sabha or in favour of a co operative
society of such fisherman registered
under the Co-operative Societies Act,
1912 (Act No.2 of 1912), and registered
place whereof situate within such circle.]"

9. The State Government in exercise
of its power under Section 126 of 1950
Act read with Rule 115-A and 115-B of
1952
Rules
had
issued
various
Government
orders
providing
for
regulating the settlement of fishery lease
in the ponds and tanks vested in the Gaon
Sabha. The provisions of Uttar Pradesh
Gram Sabha Manual contains procedure
for regulating fishery in tanks, ponds and
water channels. The said settlement is
made
in
accordance
with
various
Government orders issued from time to
time. Learned standing counsel has placed
before us, the Government orders dated
24th April, 1990, 4th January, 1994 and
17th October, 1995 issued by the State
Government in exercise of its power
under Section 126 of 1950 Act read with
Rules 115-A and 115-B of 1952 Rules. A
procedure is provided for settlement of
fishing right in the tanks and ponds vested
in the Gaon Sabha. According to
Government order separate provisions
have been made for settlement of fishing
right in ponds and tanks more than two
hectares and in ponds and tanks less than
two hectares. The grant of lease is
provided to various categories of persons
which include cooperative societies of
fishermen. An order of preference is
provided under the Government order
according to which the lease is to be
granted.

10. Now at this juncture conflicting
views expressed by various Division
Benches are to be noted for answering the
remaining questions referred to us. A
Division Bench of this Court in Ajai
Sonkar Vs. State of U.P.; 1997 RD 157,
had occasion to consider the preference
given to the Fishing Cooperative Society.
The Division Bench held that giving
preference to Cooperative Societies does
not amount to discrimination attracting
Article 14 of the Constitution. Following
was observed in paragraph 5:-

"5. Pursuant to above Rules notice
dated
17.6.96
(Annexure-1)
was
published, in clause 2 of which it has been
specifically mentioned that in granting
lease cooperative matsya societies of
1 All] Ram Kumar and others V. The State of U.P. and others
379
same village or Gaon Sabha are to be
given preference. The idea behind it is to
promote the cooperative movement. Thus,
if by giving preference to cooperative
societies applications for granting lease
are invited, it is settled that it does not
amount
to
discrimination
attracting
Article 14 of the Constitution but it is in
consonance
with
the
cooperative
jurisprudence. Therefore, the submission
made by the learned counsel for the
petitioner that the petitioner who belongs
to
a
general
category
has
been
discriminated, has no legs to stand.

11. Another Division Bench of this
Court in Gram Panchayat, Kanta
Gulzarpur,
Unnao
Vs.
Collector,
Unnao and others; 1997(3) A.W.C.
1665
(L.B.)
again
considered
the
directions issued by the State Government
under Section 126 of 1950 Act. The
Division
Bench
also
noticed
the
provisions contained in the Gaon Sabha
Manual providing for renewal of lease for
a period of five years. The Division
Bench also observed that direction issued
by the State Government under Section
126 of the Act are in consonance with the
constitutional provisions of Article 38(2)
and Article 39(c) of the Constitution of
India. The Division Bench, however, took
the view that renewal of lease cannot be
granted without first considering the
directions issued under Section 126 of
1950 Act since the renewal is also a grant
of lease. While noticing the directions
issued by the State Government under
Section 126 of 1950 Act, following
observations were made by the Division
Bench in paragraphs 21 and 22:-

"21. If the State Government under
the provisions of Article 15(4) of the
Constitution and directive principle of the
State Policy passed Government orders
which are contained in Gaon Sabha
Manual or other orders, it cannot be said
that it amounts to discrimination because
the State can make any special provision
for the advancement of any socially and
educationally
backward
classes
of
citizens.

22. It has also been contended that
neither any Cooperative Society nor any
person belonging to the caste of Mallah
and Nishad, etc., were available in the
village in question, hence the lease in
favour of respondent cannot be faulted.
But this Court cannot ignore that one
community, i.e., Kahar, was available
and, therefore, it was incumbent upon the
authorities to have followed the provision
pertaining to preferences contained in
Gaon
Sabha
Manual
or
other
Government Orders, while renewing the
Theka in favour of the respondent No.3
but even when persons belonging to other
preferential
categories
were
not
considered and the lease deed was
renewed in favour of the respondent
No.3."

12. The above Division Benches
have held that directions issued by the
State Government under Section 126 of
1950 Act, i.e., by various Government
orders for providing preference for grant
of fishery lease are not not discriminatory
and the same have been issued in
consonance with the directive principle of
State policy.

13. The contrary view to the
aforesaid Division Benches have been
expressed by several other Division
Benches, namely, Ashok Kumar Vs.
State of U.P. & others; 1995 ACJ 1066,
Abdul Gaffar Vs. State of U.P. and
380 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
others; 1997 (88) RD 656, Desh Kumar
Vs. State of U.P.; 1990 RD 385, 1999 RD
186; Panchoo Vs. The Collector/D.M.,
Gorakhpur and others. The Division
Bench in Panchoo's case (supra) also
noted earlier two Division Benches in
Ajay Sonkar's case (supra) and Gram
Panchayat Kant's case (supra). The
Division Bench also held in the above
case that fishery lease has to be granted
after advertising it in widely circulated
newspapers and after holding public
auctions. The Division Bench held that
unless the above procedure is followed, it
will be violative of Articles 14 and
19(1)(g) of the Constitution. Following
was observed in paragraph 4 of the said
judgment:-

"4. Shri Swaraj Prakash learned
counsel for petitioner has relied upon the
decision of a division bench of this court
Ajai Singh v. State of U.P., and the
decision in Gram Panchayat v. Collector.
In our opinion these decisions are
distinguishable as they have not dealt
with Article 19(1)(g) of the Constitution.
Article 19(1)(g) states that every citizen
has freedom to do business or trade.
Hence in our opinion every citizen of any
community or caste can do business of
fishery, and it cannot be restricted to any
particular caste or community. Any Rule
or G.O. to the contrary is in our opinion
violative of Article 19(1)(g) and wholly
unconstitutional. We are of the opinion
that if the lease in question has been
granted without advertisement in well
known
newspapers
having
wide
circulation and thereafter holding public
auction that lease will also be invalid.
Hence if as yet no fishery lease after 1997
has been granted after advertisement it in
well known newspapers and holding
public auction/tender then we direct the
authorities concerned to grant it only
after following the aforesaid procedure
otherwise it will be violative of Articles 14
and 19(1)(g) of the Constitution."

14. Noticing the above conflict,
learned single Judge has made this
reference. Before proceeding to consider
the correctness of the views expressed by
judgments of various Division Benches,
as noted above, it is relevant to note that
with regard to one aspect there is no
conflict in the views of the abovenoted
Division Benches, i.e., renewal of lease.
All the Division Benches have held that
renewal of lease is not permissible. With
regard to renewal of lease the matter was
already referred to a Full Bench and a Full
Bench of this Court has answered the
same which judgment is reported in
2004(96) RD 645; Feru Vs. State of U.P.
and others. The Full Bench formulated
the
question,
which
arose
for
consideration in paragraph 8 of the
judgment, which is extracted below:-

"8. On the facts and circumstances
of the case, the following questions of law
arise for consideration:-

Whether para 60(2)(kha) is violative
of Article 14 of the Constitution.

Whether period of lease can be
extended under the renewal clause of the
patta."

15. While answering the above two
questions, the Full Bench held that Clause
(2)(kha) of paragraph 60 is ultra vires to
Article 14 of the Constitution and Patta
cannot be renewed for fisheries rights by
the Land Management Committee/Sub
Divisional Officer after expiry of the
period for which it was granted. Before
1 All] Ram Kumar and others V. The State of U.P. and others
381
proceeding to examine the question any
further, it is relevant to note various
observations made by the Full Bench in
Feru's case (supra) to examine as to
whether the Full Bench in Feru's case
(supra) had also expressed any opinion
with regard to the questions which have
been referred to this Bench. As noted
above before the Full Bench only two
questions were referred. Clause (2)(Kha)
of paragraph 60 of Gaon Sabha Manual
provided that the Collector in his
discretion after the expiry of 10 years of
lease can grant Patta for next five years if
the conduct of the lessee was satisfactory.
The Full Bench declared the renewal
clause
in
Gaon
Sabha
Manual
in
Paragraph 60 (2)(kha) as ultra vires on
three reasons, namely, (i) it creates
monopoly in favour of a person holding
fishery right; (ii) under the renewal clause
increase of the rent is only 20% while
after the expiry of 10 years the amount
may increase by 100% or more; and (iii)
after the issuance of the Government
order
dated
17.10.1995
certain
preferential rights has been given to the
fishing Cooperative Societies and that
subsequent Government order has to be
taken into account for settlement of
fishing rights in a pond after the expiry of
period of lease granted to a person. It is
relevant to quote paragraph 10 to 15 of
the Full Bench to find out as to what was
actually decided by the Full Bench.
Paragraph 10 to 15 of the Full Bench
judgment in Feru's case (supra) are
extracted below:-

"10. The renewal clause as provided
under clause (2)(kha) creates a monopoly
in favour of a person holding fisheries
rights under a patta. The only condition
for its renewal is that his conduct should
be satisfactory and if the Collector finds
that his conduct was satisfactory, he can
grant it for the next 5 years. This will
create a monopoly in favour of the lessee.
After the expiry of the lease every one is
entitled to apply for grant of lease of
fisheries rights. This equal opportunity is
denied when a monopoly is created in
favour of a person by renewal of the
lease. The fishing is connected with the
livelihood of a person. Everybody can
participate in a public auction or submit
his tender for settlement of fisheries
rights. The person, who is a highest
bidder, is entitled for consideration for
settlement of fisheries rights.

11. Secondly, under the renewal
clause increase of the rent is only 20%
while after the expiry of 10 years, the
amount may increase by 100% or more of
the amount which was fixed 10 years ago.
It will be loss of revenue of the Gaon
Sabha. The revenue of the Gaon Sabha
depends upon the realization of the
amount by settlement of pond for fishing,
growing 'singhara' etc.

12. Thirdly, after the issuance of the
Government order dated 17.10.1996
certain preferential rights has been given
to fishing Cooperative Societies and that
subsequent Government order is to be
taken into account for settlement of
fishing rights in a pond after the expiry of
period of lease granted to a person.

13. The settlement of the fisheries
rights afresh on the ground that such
person has a right of renewal either under
the agreement or under para 60(2)(kha)
will be in violation of Article 14 of the
Constitution for the reason it denies equal
opportunity to all the persons concerned.
The Division Bench in Ashok Kumar's
case (supra) took the view that after the
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
expiry of the lease, the fisheries rights
should be settled only by public auction
or public tender and the same view has
been expressed in Abdul Gaffar's case
(supra).

14. The clause for renewal of the
lease under the agreement will be invalid
as we have held that para 60(2)(kha) is
ultra
vires
of
Article
14
of
the
Constitution.
Even
otherwise
the
agreement will be arbitrary without
giving
an
opportunity
of
equal
participation to others as held in Ramana
Dayaram Shetty vs. The International
Airport Authority of India and others.
16. From the perusal of the
abovequoted judgment, it is clear that Full
Bench only examined the clause for
renewal of lease and observations made
by the Full Bench were for purposes of
holding the renewal clause as ultra vires.
With respect, we are of the same view
with
regard
to
renewal
clause
as
expressed by the Full Bench in Feru's
case (supra). The renewal of lease is
impermissible and renewal clause as
contained in paragraph 60(2)(kha) of
Gaon Sabha Manual has correctly been
held to be ultra vires to Article 14 of the
Constitution. However, the observations
of the Full Bench make it clear that Full
Bench
already
took
notice
of
the
Government order dated 17th October,
1995 and also observed that preferential
right
given
to
fishing
Cooperative
Societies has also to be taken into account
for settlement of fishing right. The Full
Bench in Feru's case (supra), however,
was not concerned with the conflicting
views expressed by two set of Full
Benches as noted above. Further two
questions which have been answered by
the Full Bench, as already been quoted by
us, did not decide or express any opinion
on the questions which have been referred
to this Bench and the judgment of Full
Bench is only confined to the renewal
clause of the fishery lease as contained in
paragraph 60(2)(kha) of the Gaon Sabha
Manual.

17.

The
Division
Bench
in
Panchoo's case (supra), Desh Kumar's
case (supra) and Abdul Gaffar's case
(supra) held that every individual has
right to be given opportunity to have a
fishery lease and grant of lease cannot be
restricted to any particular caste or
community and any rule or Government
order to the contrary is violative of Article
19 (1)(g) of the Constitution of India.

18.

The
question
for
our
consideration is as to whether the
directions issued by the State Government
under Section 126 of 1950 Act and Rule
115-A (3) of 1952 Rules are violative of
rights guaranteed under Article 19(1)(g)
of the Constitution. Before proceeding
further, it is also relevant to note the
provisions of Part IX of the Constitution
of India inserted by 73rd amendment in
1982. Article 243-G contemplate giving
Panchayats such power and authority as
may be necessary to enable them to
function
as
institutions
of
selfgovernment.
The
provisions
further
provides that power and responsibility of
a Panchayat shall be with respect to
preparation
of
plan
for
economic
development and social justice and the
implementation of scheme for economic
development and social justice as may be
entrusted to them including those in
relation to the matter listed in Eleventh
Schedule.
Article
243-G
of
the
Constitution is quoted below:-
1 All] Ram Kumar and others V. The State of U.P. and others
383
"243-G. Powers, authority and
responsibilities of Panchayats.- Subject
to the provisions of the Constitution, the
Legislature of a State may, by law, endow
the Panchayats with such powers and
authority as may be necessary to enable
them to function as institutions of selfgovernment and such law may contain
provisions for the devolution of powers
and responsibilities upon Panchayats, at
the appropriate level, subject to such
conditions as may be specified therein,
with respect to-

(a) The preparation of plans for
economic development and social justice;
(b) the implementation of schemes
for economic development and social
justice as may be entrusted to them
including those in relation to the matters
listed in the Eleventh Schedule.

19. The Eleventh Schedule of the
Constitution, which is referred to under
Article 243-G includes fishery at Item
No.5. The directions issued by the State
Government contained in Government
orders dated 8th July, 1987, 24th April,
1990, 4th January, 1994 and 17th
October, 1995 have been issued in
exercise of power given to the State
Government by Section 126 of 1950 Act
read with Rule 115-A (3) of the 1952
Rules.