# Yashveer Singh v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 854
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-07-19
- **Case number:** Civil Misc. Writ Petition No. 18427 of 2008
- **Bench:** Sibghat Ullah Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yashveer-singh-v-state-of-u-p-and-others-41980
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226Settlement of Fisheries Right over pondarea
3.0480
Hectare-petitioner
being
highest bidder deposited Rs. 73000/-
cancellation
without
disclosing
any
reason and settlement in favour of
respondent No. 6 (Society) for nominal
amount of Rs. 31000/-amount to joint
loot by SDO (along with its subordinate
staff and the society)-direction issued for
remaining 4 years lease shall be settled
with petitioner at the rate of 73000/-per
year basis -for loss of 5 years of Rs.
3,65000/-half of amount be paid by
society and out of remaining half the SDO
and Tehsildaar shall deposit with equal
amount-direction for entry of adverse
entry in their Service Book given.

Held: Para 9

Accordingly, Rs.36,500/- more shall be
deposited by the petitioner for the said
period forthwith. Fresh lease for four
years shall be granted to the petitioner at
the rate of Rs. 73,000/- per year. Half of
total rent (1,46,000/-) must be deposited
by the petitioner forthwith and for the
rest period of two years equal amount of
2 All] Yashveer Singh V. State of U.P. and others
855
rent shall be deposited by 31.12.2012.
Since June 2006 till date five years have
passed. For this period of five years an
amount of Rs. 3,65,000/- is due. Half of
the
amount
shall
be
paid
by
the
respondent society (after deducting any
amount which may have already been
paid by it). Half of rest half amount shall
be deducted from the salary of Vinod
Singh
Chaudhary,
who
was
Deputy
Collector of Tehsil Budhana, District
Muzaffarnagar
from
02.07.2005
to
25.5.2007 and the remaining half of half
amount shall be recovered from the
Tehsildar on whose report three words
order "approved as proposed" was passed
by the S.D.M. in June 2006. Adverse
entries shall also be made in the service
records of the S.D.O. and the Tehsildar.
The amount which is to be recovered from
respondent no.5 shall be recovered like
arrears of land revenue. Compliance
report shall be filed within two months
and the matter must be listed for perusal
of the compliance report at the top of the
list on 21.09.2011.
Case law discussed:
2004(97) R.D. 675; 2006 (101) RD 245; 2009
(107) RD 557; 2005 (99) RD 823

## Text

854 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

33. On submission being made by
learned counsel for the petitioner that
State should either come up with total
restriction
prohibiting
any
diploma
students to take subsequent examination
for admission to post-graduate courses or
may altogether remove such restriction,
learned
counsel
for
the
State
has
submitted that State shall consider this
aspect and if necessary the conditions
shall be suitably amended. It is always
open for the State to amend the conditions
for regulating the admission to post
graduate medical courses in colleges and
issue suitable amendments as required
from time to time. No direction is needed
in that regard.

In view of the foregoing discussions,
we answer the referred questions as
under:-

(1) The decision of Hon'ble Single
Judge in Dr. Rajesh Arora's case (supra)
does not lay down the correct law
whereas the judgment of Hon'ble Single
Judge in Dr. Sanjay Sharma's case
(supra) lays down the correct law.

(2) Clause 8(h) of the notification
dated 9th October, 1990 as amended by
notification
dated
8th
July,
1996
restricting candidates admitted to the
diploma courses from seeking admission
in the same speciality in the degree course
in the subsequent year to the exclusion of
all other degree or the diploma courses is
not violative of Article 14 of the
Constitution of India.

34. Let the writ petition be listed
before the Hon'ble Single Judge for final
decision.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2011

BEFORE
THE HON'BLE SIBGHAT ULLAH KHAN, J.

Civil Misc. Writ Petition No. 18427 of 2008

Yashveer Singh

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

Counsel for the Petitioner:
Sri P.R. Maurya

Counsel for the Respondents:
Sri Anuj Kumar (S.C.-Gaon Sabha)
Sri G.K. Malviya
Sri N.P. Pandey
C.S.C.

Constitution
of
India,
Article
226Settlement of Fisheries Right over pondarea
3.0480
Hectare-petitioner
being
highest bidder deposited Rs. 73000/-
cancellation
without
disclosing
any
reason and settlement in favour of
respondent No. 6 (Society) for nominal
amount of Rs. 31000/-amount to joint
loot by SDO (along with its subordinate
staff and the society)-direction issued for
remaining 4 years lease shall be settled
with petitioner at the rate of 73000/-per
year basis -for loss of 5 years of Rs.
3,65000/-half of amount be paid by
society and out of remaining half the SDO
and Tehsildaar shall deposit with equal
amount-direction for entry of adverse
entry in their Service Book given.

Held: Para 9

Accordingly, Rs.36,500/- more shall be
deposited by the petitioner for the said
period forthwith. Fresh lease for four
years shall be granted to the petitioner at
the rate of Rs. 73,000/- per year. Half of
total rent (1,46,000/-) must be deposited
by the petitioner forthwith and for the
rest period of two years equal amount of
2 All] Yashveer Singh V. State of U.P. and others
855
rent shall be deposited by 31.12.2012.
Since June 2006 till date five years have
passed. For this period of five years an
amount of Rs. 3,65,000/- is due. Half of
the
amount
shall
be
paid
by
the
respondent society (after deducting any
amount which may have already been
paid by it). Half of rest half amount shall
be deducted from the salary of Vinod
Singh
Chaudhary,
who
was
Deputy
Collector of Tehsil Budhana, District
Muzaffarnagar
from
02.07.2005
to
25.5.2007 and the remaining half of half
amount shall be recovered from the
Tehsildar on whose report three words
order "approved as proposed" was passed
by the S.D.M. in June 2006. Adverse
entries shall also be made in the service
records of the S.D.O. and the Tehsildar.
The amount which is to be recovered from
respondent no.5 shall be recovered like
arrears of land revenue. Compliance
report shall be filed within two months
and the matter must be listed for perusal
of the compliance report at the top of the
list on 21.09.2011.
Case law discussed:
2004(97) R.D. 675; 2006 (101) RD 245; 2009
(107) RD 557; 2005 (99) RD 823

(Delivered by Hon'ble S. U. Khan,J.)

1. Heard learned counsel for the
parties.

In
this
case
on
11.05.2011,
20.05.2011, 23.05.2011 and 30.05.2011
following orders were passed.

11.05.2011

"It is shocking to know that a pond of
more than three hectares which was let out
to petitioner for Rs.73,000/- per year has
been let out by the Deputy Collector Tehsil
Budhana,
District
Muzaffarnagar
to
respondent no.5 Ishaq Ahmad claiming to
be
a
member
of
Muzaffarnagar
Matsyajeevi Sahakari Samiti Ltd. for only
Rs. 3,100/- per year. Respondent no.5 and
the Deputy Collector are equal partners in
loot of the Government property to the
extent of Rs.70,000/- per year. The Deputy
Collector who passed the order shall
immediately file his personal affidavit to
show cause as to why recommendation for
initiating disciplinary proceedings against
him after suspending him shall not be
made and why he shall not be liable to
reimburse to the Government 50% of the
amount embezzled by him in collusion
with respondent no.5.

2. List peremptorily at the top of the
list on 20.05.2011. Till 20.05.2011, the
deputy Collector concerned, where ever at
present he may be is restrained from
discharging any important function apart
from routine work.

3. Learned Chief Standing counsel is
directed to ensure compliance of this order.

Office is directed to supply a copy of
this order free of cost to Learned Chief
Standing counsel today."

20.05.2011

"Put up on 23.5.2011.

After hearing learned counsel for the
parties, if it is considered appropriate to
auction the pond, between the petitioner
and the respondent no.5, then the auction
would be held on that date in the Court."

23.05.2011

"Learned counsel for the petitioner
states that even though on 11.04.2008 he
gave a statement that petitioner was no
more interested in taking fisheries lease of
the pond in dispute, however, now the
856 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
petitioner is ready to take the fisheries
lease.

Learned counsel for the respondent
no. 5 states that due to the statement of the
petitioner as recorded in the order dated
11.04.2008, he could not file counter
affidavit on behalf of the respondent no. 5.
Accordingly, let the counter affidavit be
filed within three days.

Put up on 27.05.2011. On no future
date Deputy Collector need be present in
Court unless specific order in that regard is
passed."

30.05.2011

"Rejoinder affidavit has been filed.
Learned counsel for the respondent no5
states that earlier patta was granted to the
Society and copy of the same has been
annexed as Annexure C.A.-1. However,
learned counsel for respondent no.5 has
categorically stated that his client is not
interested in participating in the bid.
However, learned counsel for respondent
no.5 states that respondent no.5 is ready to
take the fisheries lease at Rs.10,000/- per
hectare per year.

Judgment reserved."

4. The matter pertains to grant of 10
years fisheries lease in respect of pond
comprised in plot No.251 M area 3.0480
hectare
situate
in
Gram
Panchayat
Habibpur Sikari, Tehsil Budhana, District
Muzaffarnagar. The lease was initially
settled in favour of the petitioner through
public auction on 07.01.2005. Petitioner's
bid of Rs.73,000/- per year was highest.
The S.D.O./Deputy Collector through five
words order cancelled the auction on
07.07.2006. Thereafter, it appears that
some recommendation was made for
allotment of the pond in favour of a society
by the name of the Matsyajeevi Sahkari
Samiti Limited, Muzaffarnagar of which
respondent no.5 is a member. The S.D.O./
Deputy Collector through three word order
"approved as proposed" granted the lease
to
the
respondent
no.5
society
on
06.12.2006. The lease was granted for
Rs.3100/- per year which is only 4% of
Rs.73,000/-, the yearly rent for which lease
was granted to petitioner. In this manner
the S.D.O. (along with is subordinate staff)
and the society jointly looted Government/
Gaon Sabha property.

5. An amount of Rs.73,000/- had
already been deposited by the petitioner.
Petitioner filed an application on which
through order dated 23.07.2007 Additional
Collector (Administration) Muzaffarnagar
directed
Deputy
Collector
/S.D.O.
Budhana,
District
Muzaffarnagar
to
enquire into the matter. The respondent
no.2 reported that petitioner had not
deposited
any
other
amount
except
Rs.73,000/- and he was of Saini caste
while according to Government order only
people of Dhimar (Mallah) caste can be
allotted fisheries lease. The report was
given on 18.08.2007. Petitioner again gave
a notice / representation to the Collector
that either he must be permitted to do
fisheries work in pond in dispute or
amount deposited by the petitioner should
be returned to him. It has been stated in
para 12 of the writ petition and admitted by
the respondents that it was allotted to the
respondent No.5. Respondent no.5 has
filed counter affidavit annexing therewith
as Annexure C.A.-1, copy of the lease deed
executed on 23.12.2006 in favour of the
Muzaffarnagar Matsyajeevi Sahkari Samiti
Limited, Muzaffarnagar in respect of pond
in dispute.
2 All] Yashveer Singh V. State of U.P. and others
857

6. It is admitted to the respondent
no.5 that no advertisement in newspaper
was issued before granting lease to it. It is
also admitted that in the auction held in
January
2005
respondent
no.5
Cooperative Society did not participate. In
para 7 it has been admitted that against the
allotment order dated 06.12.2006 petitioner
had filed representation no.9 of 2007-08
which was rejected by the Collector
Muzaffarnagar on 24.01.2008. Annexure
C.A.-5 is copy of the order dated
05.07.2010 passed by the Collector
withdrawing the notice which had been
given to the co-operative society on
05.11.2008 and restoring the patta granted
to it and further directing that the annual
rent would be Rs. 30,000/- in accordance
with the judgment of this Court reported in
Babban Vs. State 2004(97) R.D. 675
(holding that fisheries lease shall not be
settled for less than Rs.10,000/- per hectare
per year). However, in respect of payment
of lease amount contained in the said
order, respondent no.5 filed revision being
revision no.8 of 2008-09. Commissioner
Saharanpur Division Saharanpur allowed
the revision on 05.07.2010 (very promptly)
and set aside direction of payment of rent
at the rate of Rs. 10,000/- per hectare per
year passed by Collector, Muzaffarnagar
on 05.07.2010.

7. I have discussed all these aspect in
detail in the authorities reported in Satya
Vrat Singh Vs. State, 2006 (101) RD 245
and Ram Kumar Vs. State, 2009 (107)
RD 557. The full bench authority reported
in Ram Kumar Vs. State, 2005 (99) RD
823 was thoroughly discussed, examined
and followed in these authorities. Para-5 of
my judgment in Ram Kumar Vs. State,
2009 (107) RD 557 is quoted below:

"In the judgment reported in Satya
Vrat Singh Vs. State, 2006 (5) ALJ 549, I
summarised the effect of the Full Bench.
Wrongly interpreting the said Full Bench,
Government had issued an order on
23.02.2006 mentioning that the Full Bench
had held that State Government had got a
right to settle the fisheries lease on the
basis of priorities instead of public
auction. I therefore directed that the said
Government Order shall not be given effect
to. Paragraphs No.5, 6 & 11 of Satya Vrat
Singh authority are quoted below:

"5. In the aforesaid Full Bench
authority in para 29 it has clearly been
held that fisheries lease shall be settled
through auction after due advertisement in
news paper. It has also been held in the
said authority that no renewal must be
granted. The Government Order dated
17.10.1995
dealing
with
manner
of
settlement of fisheries lease and preferece
for such settlement with certain castes /
communities has been approved subject to
these two exceptions. The said Government
Order has been upheld by the Full Bench
in respect of priorities to members
belonging
to
such
casts,
who
are
traditionally carrying on the fisheries
business. Para 29 of Ram Kumar's Full
Bench decision is quoted below:

"29.The
settlement
of
fishery
according to the directions under section
126 of 1950 Act is settlement of property
vested in the Gaon Sabha which should be
done in a prescribed manner giving
opportunity to all eligible persons to
participate. The Revenue Officers, who are
entrusted with duty, shall ensure proper
advertisement of the date of settlement so
that all persons who are eligible to
participate have sufficient notice of the
proposed settlement. The Government
858 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
order itself contemplates "wide publicity".
The Sub -Divisional Officer himself should
see that wide publicity is made. Now a
days newspapers having wide circulation
in the area is surest mode to publish a
proposed settlement. 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 b y tender or
auction."

6. However, if no person belonging
to the preferential category as mentioned
in
the
Government
order
dated
17.10.1995 is interested in taking the
lease then the pond can not be left vacant.
It will have to be given to any other
person who is interested in taking the
fisheries lease and is highest bidder in the
open auction. According to the Full
Bench even if in the preferential category
more than one person are interested, then
the lease shall be settled through auction.

11. Before parting with the case it is
essential to notice the Government Order
dated 23.2.2006, shown by the learned
Standing Counsel. The said Government
Order was issued after the aforesaid Full
Bench decision of Ram Kumar. In the said
Government Order it has been mentioned
that Full Bench authority of Allahabad
High Court in its judgement dated
29.9.2005 in Writ Petition of Ram Kumar
vs. State has held that State Government
has got a right to settle the fisheries lease
on the basis of priorities in stead of public
auction. The Full Bench in para 29, which
has been quoted above, has clearly held
that fisheries lease should be settled
through public auction so that every
person belonging to the preferential
category may know about it and in case
more than one person belonging to
preferential category are interested in
taking the lease, then it shall be settled
through auction. The Government Order
dated 23,2,2006 is clearly based upon
wrong interpretation of the Full Bench
Authority. Hence it shall not be given
effect to. Fisheries lease shall be settled
strictly in accordance with Full Bench
authority which clearly mandates that a
date for public auction shall be advertised
in news paper. It is needless to add that
the advertisement must appear at least
about a week before the date of auction.
However, in case only one person
belonging to preferential category comes
forward on the advertised date, then
fisheries lease shall be settled in his
favour. In case more than one person
belonging to preferential category as
provided in the Government Order dated
17.10.1995 intend to take the fisheries
lease, then it shall be settled through
auction amongst them. In case no person
belonging to preferential category is
present on the date of auction then
general
auction
amongst
all
the
participants shall take place."

8. As the respondent no.5 cooperative society had neither participated
in the auction in which lease was granted
to petitioner nor any advertisement was
issued in newspaper before granting the
subsequent lease to respondent no.5 and
the lease has been granted virtually for no
amount hence the lease granted in favour
of respondent no.5 co-operative society is
set aside. More than six years have
already passed hence it is directed that
immediately lease of the pond in dispute
2 All] Reliance General Insurance Company Ltd. V. Smt.Geeta and others
859
shall be executed in favour of the
petitioner for four years. In the affidavit
of compliance filed by Sri Vinor Singh
Choudhary,
who
was
the
Deputy
Collector
of
Tehsil
Budhana
from
02.07.2005 to 25.-5.2007 in para 6 it has
been stated that since 07.01.2005 till till
17.06.2006 petitioner used the pond in
dispute for fisheries purpose.

9. Accordingly, Rs.36,500/- more
shall be deposited by the petitioner for the
said period forthwith. Fresh lease for four
years shall be granted to the petitioner at
the rate of Rs. 73,000/- per year. Half of
total rent (1,46,000/-) must be deposited by
the petitioner forthwith and for the rest
period of two years equal amount of rent
shall be deposited by 31.12.2012. Since
June 2006 till date five years have passed.
For this period of five years an amount of
Rs. 3,65,000/- is due. Half of the amount
shall be paid by the respondent society
(after deducting any amount which may
have already been paid by it). Half of rest
half amount shall be deducted from the
salary of Vinod Singh Chaudhary, who
was Deputy Collector of Tehsil Budhana,
District Muzaffarnagar from 02.07.2005 to
25.5.2007 and the remaining half of half
amount shall be recovered from the
Tehsildar on whose report three words
order "approved as proposed" was passed
by the S.D.M. in June 2006. Adverse
entries shall also be made in the service
records of the S.D.O. and the Tehsildar.
The amount which is to be recovered from
respondent no.5 shall be recovered like
arrears of land revenue. Compliance report
shall be filed within two months and the
matter must be listed for perusal of the
compliance report at the top of the list on
21.09.2011.

10. Writ petition is allowed as above.

11. Office is directed to supply copy
of this order free of cost to learned Chief
Standing Counsel within three days.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.07.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 32196 of 2011

Reliance General Insurance Company
Ltd.

 ...Petitioner
Versus
Smt. Geeta and others ...Respondent

Counsel for the Petitioner:
Sri S.K. Mehrotra

Counsel for the Respondents:
Sri Jai Prakash Prasad

Code of Civil Procedure-Order 9 Rule 7Application
to
recall
ex-parte
proceeding order-rejected by placing
wrong
applicability
of
law-by
misreading the same-consequent to
ex-parte
order
only
one
witness
examined-held-application under Order
9
Rule
7
maintainability-direction
issued accordingly.

Held: Para 5

The decision in Arjun Singh (supra) has
also been wrongly referred and this
Court is surprised to see how the
District Judge, Ghaziabad, being a
Higher Judicial Officer, has so misread
the judgment. I am constrained to
observe that the judgment in question
raises a question upon the competence
and understanding of such a high
Judicial Officer.
Case law discussed:
2004 (3) CCC Allahabad=2004 ALL.L.J.
3499; AIR 1964 SC 993