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Mazid Khan Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ No. 329 of 1982
Judge
Reported inAIR1983Raj180; 1982()WLN660
ActsRajasthan Fisheries Rules, 1958 - Rule 5(1)
AppellantMazid Khan
RespondentThe State and ors.
Appellant Advocate M.I. Khan, Govt. Adv.; O.P. Garg, Adv.
Respondent Advocate Paras Kuhad, Adv.
DispositionPetition dismissed
Excerpt:
rajasthan fisheries rules, 1958 - rule 5(1)(c)--classification of water--it be made before commencement of lease for 5 years and not to be changed before completion of term -held, there are existing rights of respondent no. 3;the classification is to be made before five years term commences & once a lease is given for five years, the classification cannot be changed in between. the object is that as the contractor would invest money for development purposes, only if he is normally assured of a five years permit, subject to fulfilling the conditions of the agreement.;the rights of respondent no. 3 for a period of five years are existing in law.;writ dismissed - .....five years. however, according to rule 5 (1) (c) the lease can be given from year to year and the lease period is five years. the period during these five years can be extended from year to year without any fresh auction.5. section 5, sub-clause (c) reads as under:'(c) specified 'c' class water suitable for fish culture may be leased out by open auction for a period of one year in the initial stage, and the period may be extended for a period not exceeding one year at a time. subject, however to the condition that the total period of lease shall not exceed five years in accordance with the terms and conditions as specified, in form no. 3.a appended to these rules:'6. learned counsel for the petitioner has contended that firstly it was not a 'c' class water as the income of it was more.....
Judgment:
ORDER

Guman Mal Lodha, J.

1. The Petitioner Mazid has filed this petition challenging the order of the Director Fishery, Government of Rajasthan Annexure 5 Dt. 19-02-1982 which reads as under:--

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2. The petitioner's case is that the offices of Bandh Nigo Mai Nadi, falls in the category of 'B' Class and an auction was conducted in pursunace of notice issued by the respondents The petitioner was the highest bidder and yet he is unable to get the contrcat. His bid was Rs. 10,000/-. Respondents Nos. 1 and 2 have appeared through Mr. M.I. Khan, Govt Advocate. Shri Hamid Ali who claims to be an old contractor and having subsisting lease of this Band and river has also contested this writ petition.

3. The short point involved in the case is whether the Bandh Nigo Mai Nadi, which was classified as 'B' Class by the Government itself and put to auction in December, 1981 was not a 'B' Class Band and whether the contention of respondents that it was a 'C' Class Bandh and was liable to be given for fiveyears, according to Rule 5 (1) (e) of the Rajasthan Fisheries Rules, 1958 are correct.

4. Undoubtedly the respondent No. 3 was accepted as a lease-holder for the period of five years commencing from 1979-89 and the agreement was entered into in the prescribed Form 3-A of the rules. In support of this, Annexure 5, itself makes a mention to it. The Learned Government Advocate has shown the original letters and lease deed which are for five years. However, according to Rule 5 (1) (c) the lease can be given from year to year and the lease period is five years. The period during these five years can be extended from year to year without any fresh auction.

5. Section 5, Sub-clause (C) reads as under:

'(C) Specified 'C' Class water suitable for fish culture may be leased out by open auction for a period of one year in the initial stage, and the period may be extended for a period not exceeding one year at a time. Subject, however to the condition that the total period of lease shall not exceed five years in accordance with the terms and conditions as specified, in form No. 3.A appended to these rules:'

6. Learned counsel for the petitioner has contended that firstly it was not a 'C' Class water as the income of it was more than 5,000/- rupees and not below 5,000/- rupees. He pointed out that in the year 1979-80, the income was 6,600 rupees. It is not in dispute that in 1977-78, according to the auction notice of 1980-81, showed to me by the petitioner, the income has been shown as Rs. 3,400/-and in 1978-79, it was Rs. 4,700/-

7. Undoubtedly in 1979-80. the auction bid of the respondent No. 3 wasRs. 6,000/-. However as per scheme ofSub-clause (c), auction is to be held onlyonce and then the lease can continue forlive years. That being so, only logicalmeaning to be given for categorizationof water into classes, is that earlier income of the year of auction can be looked into. That being so. since in 1977-78the income was Rs. 3499/- and in 1978-79 the income was Rs. 4,700/-. It wasbelow Rs. 5,000/- when the water wasput to auction in 1979-80. Undoubtedlyit was of 'C' Class. ' '.

8. If the Clause (C) of Rule 5 is to be given its full meaning, it means, that the water once auctioned can be continued to lease without auction for a period offive years. The logical conclusion, which can be arrived from this is that the classification is to be made before five years from (sic) commences and once a lease is given for five years, the classification cannot be changed in-between. The object is that as the contractor would invest money for development purposes, only if he is normally assured of a five years permit, subject to fulfilling the conditions of the agreement.

9. In view of the above, I am convinced that the disputed water known as Band Nigo Mai Nandi was in 'C' Class in the relevant year 1979-80 when respondent No. 3 was the highest bidder and whose bid was accepted for five years at the rate of Rs. 6.600/- per year.

10. In view of this. I am inclined to accept the contention of Mr. Khan, learned Govt. Advocate that the categorization of this water in 'B' Class and the auctions were done by mistake of fact by the department.

11. Learned counsel for the petitioner submitted that his bid was the highest and therefore, he has got a right to get the lease. Admittedly the Competent Authority has not accepted the bid and therefore, no legal right has been . created.

12. In view of the above, I am of the opinion that though the mistake committed by the respondent No. 1 deserves to be taken note of seriously by the department and appropriate action is called for against the officers, who have put the petitioner to harassment, yet since the rights of respondent No. 3 for a period of five years are existing in law no writ can be issued to direct the respondent Nos. 1 and 2 to accept the bid.

13. The result is that this writ petition is dismissed. But respondents Nos. l and 2 would pay the cost., of Rs. 200/- to the petitioner, because it is oh account of their admitted mistake that the auction was made for which the petitioner was required to invest the money and also to undergo 'this litigation.

14. The writ petition is dismissed.


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