M.C. Tripathi, J
1. Heard Sri Arvind Srivastava, learned counsel for the petitioner; Sri Devesh Vikram, learned Additional Chief Standing Counsel assisted by Sri Fuzail Ahmad Ansari, learned Standing Counsel for the State respondent nos.1 to 3 and Sri Kundan Kumar, learned counsel for respondent no.4 i.e. Matsya Jivi Sahkari Samiti Limited, Tehsil Fareha, District Auraiya.
2. Present writ petition has been preferred under Article 226 of the Constitution of India inter-alia with following reliefs:-
“i. to issue a writ, order or direction in the nature of certiorari quashing the impugned advertisement dated 28.07.2023 (Annexure No.06 to this writ petition) published by the District Magistrate, Auraiya and all the actions taken in pursuance to this advertisement by the respondents.
ii. to issue a writ, order or direction in the nature of certiorari quashing the impugned order No.173-25/Samiti/2022-23 dated 26.07.2022 (Annexure No.05 to this writ petition) passed by the Chief Executive Officer, Fisheries Development Authority, Jalaun at Orai..”
3. Initially, the present matter was entertained on 11.08.2023 and on the said date, learned Additional Chief Standing Counsel was asked to seek instructions in the matter. Thereafter, the detailed instructions have been placed by learned Additional Chief Standing Counsel, which are already on record.
4. The petitioner Society thereafter moved an amendment application No.3 of 2023 on 18.10.2023 to quash the Government order dated 10.01.2019 and the order dated 08.09.2023. The petitioner Society had also moved an impleadment application No.2 of 2023 to implead ‘Matsya Jivi Sahkari Samiti Limited, Tehsil Fareha, District Auraiya’ as respondent no.4 in whose favour the auction was settled. As there was no objection to the aforesaid applications, both the applications were allowed by this Court vide order dated 17.11.2023 and accordingly, the notice was also issued to the newly impleaded respondent no.4.
5. With the consent of the learned counsel for the parties, this Court proceeds to decide the present matter at this stage under the Rules of this Court without calling for the counter affidavit.
6. The facts in brief for the purpose of adjudication of the present controversy are that the petitioner is a Cooperative Society registered on 02.08.1986 under the provisions of U.P. Cooperative Societies Act, 1965 (in short, Act, 1965), in the office of the Director, Fisheries/Registrar, Matsya Sahkari Samiti Uttar Pradesh, having its registered office at Gadhakasda, Vikas Khand Chakarnagar, 81, Maal Godam Road, District Etawah.
7. It transpires from the record that a Society had earlier preferred a Writ C No.31309 of 2018 for direction to the Revenue Department, State of U.P. to take a decision in regard to fishing rights in the rivers, wherein, an interim mandamus was issued by this Court on 14.09.2018 directing the Department of Revenue, Government of U.P. to formulate a policy within two weeks. In response thereof, the State Government had taken a decision and issued Government Order on 10.01.2019 laying down the procedure for grant of fishery rights in the rivers across the State.
8. The present matter relates to fishery rights in river ‘Yamuna’, which flows through various villages falling in District Jalaun on one side and the villages falling in District Auraiya on the other side. In the advertisement dated 28.07.2023 issued in the light of the Government order dated 10.01.2019, the area of river ‘Yamuna’ was demarcated as Jal Bhag No.1, which flows through villages namely Dimoli, Nandgawan, Kandhesi, Gadha, Chakarnagar, Basaiya, Madaiya, Bilhati, Kaleshwar, Khititi, Kariyawali, Machal Ki Madaiya, Gadhakasda & Kakaraua of District Etawah and the villages namely Beejalpur, Sikharna, Khairadanda, Muradganj & Bhartaul of District Auraiya. The petitioner cooperative society is claimed to be having 80 members belonging to fishing community. Out of these 80 members, 35 members reside in District Auraiya in the villages through which the river ‘Yamuna’ flows and the remaining 45 members reside in the villages of District Etawah through which Jal Bhag No.1 of river ‘Yamuna’ passes.
9. Sri Arvind Srivastava, learned counsel for the petitioner submitted that the petitioner is a registered Fishermen Cooperative Society having its area of operation in the river ‘Yamuna’. Earlier all the members of the petitioner Society were resident of District Etawah. Due to bifurcation of the District Etawah into two districts i.e. Etawah and Auraiya, 35 members of the petitioner Society became resident of District Auraiya and the remaining 45 members are residing in District Etawah. In view of the advertisement, the area of operation is already defined as Jal Bhag-1 and therefore, the petitioner Society was competent to participate in the auction held on 21.08.2023 but in most arbitrary manner, the claim of the petitioner was rejected by the Chief Executive Officer, Fisheries Development Authority, Jalaun at Orai vide order dated 26.07.2022.
10. Sri Arvind Srivastava further submitted that the petitioner Society has been registered with the Fishery Department and recommended for grant of rights for catching fishes in river ‘Yamuna’, which flows through the area of Tehsil Chakarnagar. Even the members of the petitioner Society also reside in the various villages of District Auraiya namely Beejalpur, Sikharna, Khairadanda, Muradganj & Bhartaul and their livelihood is also dependent upon catching fishes. The petitioner Society was competent to participate in view of the advertisement but on the one hand the respondents had not given permission to the petitioner Society to participate in the auction of Jal Bhag No.1 and on the other hand, the respondents in most arbitrary manner had settled the auction for the year 2023-24 in favour of respondent no.4 i.e. ‘Matsya Jivi Sahkari Samiti Limited Fariha, Tehsil Ajeetmal, District Auraiya’ at the minimum price of Rs.1,56,06,265/- as given in the impugned advertisement dated 28.07.2023.
11. He submitted that even though some villages of District Jalaun, Etawah and Auraiya fall in the demarcated area (Jal Bhag-1) but the petitioner Society was not permitted to participate in the auction proceeding. The Government order dated 10.1.2019 does not permit any such classification on the basis of geographical location. The members of the petitioner Society have a right to earn their livelihood by exercising fishing rights over the area of Jal Bhag-1, which passes through the villages in which the members of the petitioner Society reside. The act of the respondents is in violation of the fundamental right of the petitioner Society, which is enshrined under Article 19 (1) (g) and 21 of the Constitution of India, which guarantees the right to livelihood to the members of the petitioner Society, who belong to the fishing community to operate and catch the fishes in river ‘Yamuna’.
12. He had also contended that the Government order dated 10.01.2019 is merely an executive instruction/policy and no executive instruction/policy can restrict or interfere with the fundamental rights of the petitioner Society unless backed by any statutory provision. The impugned Government order/Circular dated 10.01.2019 is in teeth of the fundamental rights of the petitioner Society, which is guaranteed under Article 19 (1) (g) of the Constitution of India and therefore, the same is liable to be set aside. In support of his submission, learned counsel for the petitioner placed reliance on the judgment in Bishambhar Dayal Chandra Mohan v. State of UP (1982) 1 SCC 39 in which it was held that the State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts. The reliance was also placed on the judgment in M/s Laxmi Khandsari and ors vs. State of UP and others 1981 (2) SCC 600 in which it was held that where there is a clear violation of Article 19 (1) (g) of Constitution of India, the State has to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness.
13. He further submitted that the law is well settled that any law, which be made under clauses (2) to (6) of Article 19 of Constitution of India to regulate the exercise of the right to the freedoms guaranteed by Article 19 (1) (a) to (e) and (g), must be “a law” having statutory force and not a mere executive or departmental instruction. In this regard, he had placed reliance on the judgments in Bijoe Emmanuel vs. State of Kerala (1986) 3 SCC 615; State of Bihar vs. Project Uchcha Vidya, Shikshak Sangh (2006) 2 SCC 545; Modern School vs. Union of India (2004) 5 SCC 583; LIC v. Manubhai D. Shah (Prof.) (1992) 3 SCC 637; Dharam Dutt vs. Union of India (2004) 1 SCC 712; Sunil Batra v. Delhi Admn. (1978) 4 SCC 494; Virajlal Manilal & Co. v. State of M.P. (1969) 2 SCC 248 and Peerless General Finance and Investment Co. Ltd. vs. RBI (1992) 2 SCC 343.
14. It was contended that the classification made by the Circular dated 10.01.2019 to restrict the residents of the District Etawah to take part in the auction of fishing rights in Jal Bhag No.1 of river Yamuna amounts to excessive restriction. As per the said Circular, even though the members of the petitioner society belong to District Jalaun and District Auraiya, and they are also residing at the bank of river Yamuna but on account of arbitrary circular, they would never be entitled to participate in the auction proceedings. The said action is unsustainable. Reliance has also been placed on the judgments in Lakshman v. State of M.P. (1983) 3 SCC 275; Mohd. Faruk v. State of M.P. (1969) 1 SCC 853; Saurabh Chaudri v. Union of India (2003) 11 SCC 146; Purshottani Dass Tandon v. State of U.P. 1986 SCC OnLine All 264; State of U.P. v. Pradip Tandon (1975) 1 SCC 267.
15. Per contra, Sri Devesh Vikram, learned Additional Chief Standing Counsel assisted by Sri Fuzail Ahmad Ansari, learned Standing Counsel had vehemently opposed the writ petition. He submitted that the petitioner Society was registered on 02.08.1986 having its registered office at Gadhakasda, Vikas Khand Chakarnagar, 81 Maal Godam Raod, District Etawah. Even in the application, which was moved by the Secretary and the President of the Society to the District Magistrate, Jalaun on 04.05.2022, which is already on record, the petitioner Society itself had accepted that the area of operation of the petitioner Society is ‘Vikas Khand Chakarnagar, District Etawah’. He had also placed reliance on Chapter-II & III of U.P. Cooperative Societies Rules 1968 (in short, Rules, 1968), which is framed under the Act, 1965, which deals with the registration and the bye-laws respectively. Rule 3 of Chapter-II of the Rules, 1968 provides for an application of registration of a Society to be made in prescribed form and accordingly, Rule 15 of Chapter III provides for the name and headquarters of the Society and the area of operation.
16. It had been vehemently contended that registered bye-laws of the petitioner Society provides area of operation i.e. Vikas Khand Chakarnagar and therefore, the petitioner’s own bye laws, which were framed under the Rules, 1968, do not permit the petitioner Society to operate beyond ‘Vikas Khand Chakarnagar, District Etawah’. He had also placed reliance on Chapter IV of the Rules, 1968, which provides the procedure regarding amendment in the bye-laws but admittedly, the petitioner Society had not made any amendment in the bye laws regarding the area of operation and therefore, the entire claim, which has been set up by the petitioner Society to operate fishing rights beyond its area of operation and the demand of participation in the auction proceeding, which has been conducted by the District Auraiya, is totally misconceived. The argument of the petitioner, that at the time of registration of petitioner Society, the District Auraiya was not in existence as there was only one district i.e. Etawah, and therefore, the petitioner Society may be permitted to participate in the auction proceeding, is also misconceived as the District Etawah was bifurcated in the year 1997 itself and since then the petitioner Society had not made any amendment in the bye laws as per Rule 30 (g) of Chapter IV of the Rules, 1968. The Vikas Khand Chakarnagar (registered office of the petitioner Society) was remained in District Etawah and therefore, even on this account, the argument of the petitioner’s counsel could not sustain.
17. Sri Fuzail Ahmad Ansari, learned Standing Counsel to buttress the submission advanced by Sri Devesh Vikram, learned Additional Chief Standing Counsel, vehemently submitted that even though at the time of filing the writ petition the entire pleading had been set up by the petitioner to challenge the advertisement dated 28.07.2023, relying upon the Government order dated 10.01.2019 on the ground that the petitioner is being treated to have an area of operation of District Etawah, whereas the Government order does not permit any such classification on the basis of geographical location, which amounts to discrimination, arbitrariness and violative of Articles 14, 21 and 19 (1) (g) of the Constitution of India but later on, as an afterthought, the petitioner had challenged the Government order dated 10.01.2019 by means of amendment application as regard the preference given therein as Clause (Ga).
18. Learned Standing Counsel submitted that once the impugned advertisement dated 28.07.2023 was challenged on the basis of Government order itself then it was not open to the petitioner to challenge the Government order in the same writ petition by means of an amendment application. In support of his submission, he has referred paragraphs 3, 10, 14 and 17 of the writ petition. He submitted that even though, on one hand the petitioner had taken the benefit of the said Government order and secured three more fishing leases in the year 2022-23 apart from their own area of operation, therefore, at this stage they may not be permitted to blow hot and cold at the same time by challenging the Government order on the ground that they did not fall in the zone of consideration. He lastly contended that Clause (Ga) of the Government order dated 10.01.2019 cannot be challenged at this belated stage. Moreover, the said Government order had been issued in pursuance of the Division Bench order passed in Writ C No.31309 of 2018. It is submitted that similar Government order dated 17.10.1995 has been considered in Matsyajivi Sahkari Samiti Ltd. through Adhyaksha/Mukhya Pravartak vs. State of UP through Principal Secretary, Panchayat Raj Deptt., Lucknow and others 2018 (2) ADJ 431 wherein the Division Bench of this Court had proceeded to dismiss the writ petition on 21.01.2018.
19. It was submitted that so far as the argument regarding the violation of Article 14, 19 (1) (g) and 21 of Constitution by the petitioner is concerned, the same cannot sustain as the same is already settled by the Full Bench judgment rendered in Ram Kumar and ors vs. The State of UP and ors 2005 (3) UBLBEC 2487, wherein the Full Bench had discussed the aforesaid issues in paragraphs nos.25, 26 and 27 of the judgment, which are reproduced herein below:-
“25. 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.
26. 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).
27. However, it is relevant to note that the directions issued under Section 126 of 1950 Act itself provides that settlement of fishing right shall be done with proper and extensive publicity so that all who are eligible to participate may be aware of such proposed settlement and may participate. It is true that without information or knowledge of all concerned who are eligible to participate the settlement will be arbitrary. The Division Bench of this Court in 1992 A.L.J. 482; Gaon Sabha, Tuja, Vs. The Sub Divisional Officers and others, had noted the proviso to Rule 115-S and observed that public auction for settlement of fishery right is not mandatory. The Division Bench, however, in the said judgment has observed that although there is no requirement to the Sub Divisional Officer to settle the fishery lease by auction but the said procedure of auction can be exercised by the Sub Divisional Officer when there are more than one person claiming entitlement for grant of lease. Following was laid down by the above Division Bench in paragraph 5:-
"5. ............ While laying down order of preference for the grant of Patta it has been provided that if there are more than one person of one group the Patta shall be granted by auction in favour of the highest bidder. The normal rule laid down by aforesaid Government order is the grant of Patta by Sub Divisional Officer without any public auction, unless the case falls within the last part of Clause-2 which has provided for public auction, if there are more than one person of one group. It may, however, be observed that though there is no statutory requirement requiring the Sub Divisional Officer to settle the land by auction, there is no prohibition either and if he is of the opinion that in view of the facts and circumstances of a particular case it will be expedient to grant the Patta of the fisheries right by means of public auction, he may do so. But if he has settled the fisheries by means of other than the auction his order cannot be set-aside on the ground that he has not settled it by holding public auction."
(Emphasis supplied)
20. Learned Standing Counsel submitted that although the judgment of the Full Bench in Ram Kumar’s case (supra) is much prior to the issuance of the Government order dated 10.01.2019 but the reasoning given and ratio taken by Hon’ble Full Bench is fully and squarely applicable on the case in hand.
21. We have considered the submissions advanced by the learned counsel for the parties and carefully perused the judgments cited at the bar and have also perused the record of the case.
22. Before proceeding to consider the rival submissions, it would be appropriate to re-produce the Government order dated 10.01.2019 as under:-
संख्या- 1/2019/33/एक-2-2019(रिट)/2018
प्रेषक,
सुरेश चन्द्रा,
प्रमुख सचिव,
उ०प्र० शासन।
सेवा में,
आयुक्त एवं सचिव,
राजस्व परिषद,
उ०प्र० लखनऊ।
राजस्व अनुभाग-2 लखनऊः दिनांकः 10 जनवरी, 2019
विषयः नदियों में मत्स्य आखेट हेतु पट्टा/ठेका का अधिकार दिये जाने के सम्बन्ध में।
महोदय,
उपर्युक्त के सम्बन्ध में मुझे यह कहने का निदेश हुआ है कि मा० उच्च न्यायालय, इलाहाबाद में योजित रिट याचिका संख्या-31309/2018 “मत्स्य जीवी सहकारी समिति लि० बनाम उ०प्र० राज्य व अन्य” में मा० उच्च न्यायालय द्वारा नदियों में मत्स्य आखेट हेतु पट्टा/ठेका का अधिकार दिये जाने के लिए नीति बनाये जाने के आदेश पारित किए गए हैं। अतः उ०प्र० राज्य के भौगोलिक क्षेत्राधिकार में पड़ने वाली नदियाँ/बहती जल धाराओं में मत्स्य आखेट प्रबन्धन हेतु निम्न व्यवस्था निर्धारित की जाती हैः-
(क) मत्स्य आखेट क्षेत्रों का चिन्हांकन-
(1) उ०प्र० राज्य के भौगोलिक क्षेत्राधिकार में पड़ने वाली नदियों में मत्स्य आखेट (शिकारमाही) हेतु सम्बन्धित जनपद के जिलाधिकारी द्वारा प्रत्येक तहसील में उप जिलाधिकारी की अध्यक्षता में तहसील स्तरीय मत्स्य आखेट समिति का गठन निम्नवत् किया जायेगा-
1. उप जिलाधिकारी अध्यक्ष
2. जिलाधिकारी द्वारा नामित खण्ड विकास अधिकारी सदस्य
3. अधिशासी अभियंता, सिंचाई द्वारा नामित सहायक अभियंता सदस्य
4. अपर मुख्य अधिकारी, जिला पंचायत द्वारा नामित अधिकारी सदस्य
5. सहायक वन संरक्षक सदस्य
6. सहायक निदेशक, मत्स्य/जनपदीय मत्स्य अधिकारी सदस्य सचिव
(2) उक्त समिति द्वारा तहसील में बहने वाली नदियों/बहती जलधाराओं में सर्वेक्षण कर मत्स्य आखेट क्षेत्रों का चिन्हांकन किया जायेगा। मत्स्य आखेट क्षेतों का चिन्हांकन गारम पंचायत अथवा आवागमन की सुगमता अथवा नौका घाट आदि सीमा विभाजक के रूप में लेते हुए किया जायेगा।
(3) उक्त समिति द्वारा नदियों में मत्स्य आखेट क्षेत्रों का चिन्हांकन, मत्स्य मात्रा के निर्धारण एवं उसका न्यूनतम आरक्षित मूल्य निर्धारण का कार्य प्रत्येक वर्ष माह अप्रैल में पूर्ण किया जायेगा।
(4) नदियों में मत्स्य आखेट हेतु प्रतिबन्धित क्षेत्रों को मत्स्य आखेट क्षेत्रों के चिन्हांकन से पृथक रखा जायेगा।
(ख) मत्स्य आखेट क्षेत्रों में मत्स्य मात्रा का निर्धारण-
(1) वर्तमान नदियों/बहती जलधाराओं में जल प्रवाह की लम्बाई, चौड़ाई एवं गहराई को दृष्टिगत रखते हुए चिन्हित मत्स्य आखेट क्षेत्रों में संभावित मत्स्य उत्पादकता का निर्धारण किया जायेगा।
(2) मत्स्य उत्पादकता के सम्बन्ध में यदि कोई मत्स्य उत्पादन का आंकडे उपलब्ध हों, तो उसका भी संज्ञान लिया जाये।
(3) मत्स्य मात्रा के निर्धारण के आधार पर मत्स्य आखेट क्षेत्र का न्यूनतम आरक्षित मूल्य निर्धारित किया जायेगा।
(4) न्यूनतम आरक्षित मूल्य का निर्धारण (1) क (1), में गठित समिति द्वारा किया जायेगा जिसका अनुमोद जिलाधिकारी द्वारा किया जायेगा।
(ग) मत्स्य आखेट हेतु मत्स्य जीवी सहकारी समितियों की पात्रता का वरीयताक्रम निम्नवत होगा-
(क) संबंधित ग्राम में निवास करने वाले मछुआ समुदाय के व्यक्तियों की सहकारी समितियां जो उ०प्र० सहकारी समिति अधिनियम, 1965 के अन्तर्गत रजिस्ट्रीकृत हों और मत्स्य पालन विभाग, उ०प्र० द्वारा मान्यता प्राप्त हो।
(ख) संबंधित न्याय पंचायत क्षेत्र में निवास करने वाले मछुआ समुदाय के व्यक्तियों की सहकारी समितियां, जो ऊपर की भांति पंजीकृत और मान्यता प्राप्त हो,
(ग) संबंधित विकास खण्ड में निवास करने वाले मछुआ समुदाय की सहकारी समितियां जो ऊपर की भांति पंजीकृत और मान्यता प्राप्त हो।
(घ) संबंधित जनपद में निवास करने वाले मछुआ समुदाय की सहकारी समितियां जो ऊपर की भांति पंजीकृत और मान्यता प्राप्त हो।
(ड़) उ०प्र० राज्य में निवास करने वाले मछुआ समुदाय की सहकारी समितियां जो ऊपर की भांति पंजीकृत और मान्यता प्राप्त हो।
(च) अनुसूचित जाति अथवा अनुसूचित जनजाति के व्यक्तियों की सहकारी समितियां जो ऊपर की भांति पंजीकृत और मान्यता प्राप्त हो।
(छ) अन्य सहकारी समितियां जो ऊपर की भांति पंजीकृत और मान्यता प्राप्त हो।
स्पष्टीकरण
1. चिन्हित मत्स्य आखेट क्षेत्र जिस ग्राम/ग्रामों में पड़ता है उस ग्राम/ग्रामों की ग्राम पंचायत/पंचायतों में पड़ने वाली मत्स्य जीवी सहकारी समितियां पात्र मानी जायेगी।
2. यदि चिन्हित मत्स्य आखेट क्षेत्र में केवल एक मत्स्य जीवी सहकारी समिति पात्र है तो न्यूनतम आरक्षित मूल्य पर पट्टा किया जायेगा। यदि पात्रता सूची में एक से अधिक मत्स्य जीवी सहकारी समितियां हैं तो मौके पर नीलामी करायी जायेगी। जिसमें केवल पात्रता सूची में उल्लिखित समितियों के अधिकृत प्रतिनिधि ही प्रतिभाग कर सकेंगे।
3. यदि चिन्हित मत्स्य आखेट क्षेत्र वाली नदी दो जिलों की सीमाओं से होकर पूरब पश्चिम बहती है तो उत्तर में पड़ने वाले जनपद के जिलाधिकारी द्वारा प्रथम वर्ष में पट्टा/नीलामी की जायेगी और दक्षिण में पड़ने वाले जिलाधिकारी द्वारा दूसरे वर्ष पट्टा/नीलामी की जायेगी। इसी प्रकार यदि नदी उत्तर दक्षिण में बहती है तो पूरब में पड़ने वाले जनपद के जिलाधिकारी द्वारा प्रथम वर्ष में पट्टा/निलामी की जायेगी और पश्चिम में पड़ने वाले जिलाधिकारी द्वारा दूसरे वर्ष पट्टा/नीलामी की जायेगी। यह व्यवस्था क्रमानुसार आगे की अवधि के लिये भी जारी रहेगी।
2. यदि चिन्हित मत्स्य आखेट क्षेत्र हेतु पट्टा आवंटन के लिये केवल एक मत्स्य जीवी सहकारी समिति पात्र है, तो पट्टा न्यूनतम आरक्षित मूल्य पर या राज्य सरकार द्वारा समय-समय पर नियत भाटक की धनराशि पर दिया जायेगा।
3. संबंधित जिलाधिकारी द्वारा नामित अपर, जिलाधिकारी या उप जिलाधिकारी पट्टी आवंटन/नीलाम अधिकारी होगा।
4. चिन्हित मत्स्य आखेट क्षेत्रों में पट्टा/नीलामी समिति द्वारा माह मई व जून के अन्त तक कर दी जायेगी।
5. पट्टा आवंटन/नीलामी अधिकारी द्वारा चिन्हित मत्स्य आखेट क्षेत्रों के पट्टा आवंटन/नीलामी की सूचना जनपद में पर्याप्त प्रचार-प्रसार वाले कम से कम दो हिन्दी समाचार पत्रों में प्रकाशित करायी जायेगी। मत्स्याखेट के पट्टा/नीलामी के आवेदन हेतु कम से कम 21 दिन (3 सप्ताह) का समय दिया जायेगा।
6. मत्स्य आखेट समिति बोली में उच्चतम धनराशि वाली मत्स्य जीवी सहकारी समिति से बोली की 25 प्रतिशत धनराशि तत्काल जमा करायेगी। अवशेष धनराशि एक सप्ताह में जमा करना अनिवार्य होगा।
7. उच्चतम बोली की धनराशि जमा कर दी गयी हो, तो पात्रता सूची, नीलामी प्रपत्र और बोली की धनराशि को जमा करने संबंधी विवरण सहित तहसील स्तरीय मत्स्य आखेट समिति अपनी आख्या सम्बन्धित जिलाधिकारी को अग्रसारित करेगी।
8. यदि जिलाधिकारी का समाधान हो जाता है कि मत्स्य आखेट क्षेत्र को आवंटित करने का निर्णय नियमों के उपबन्दों के अनुसार किया गया है तो जिलाधिकारी पट्टा/नीलामी की स्वीकृति बिन्दु संख्या-12 में निर्धारित शर्तों के अधीन प्रदान कर देंगे।
9. पट्टा/नीलामी से प्राप्त धनराशि की 25 प्रतिशत धनराशि आनुपातिक रूप से संबंधित ग्राम पंचायतों को 25 प्रतिशत धनराशि जिला पंचायत को और 50 प्रतिशत धनराशि जिलाधिकारी द्वारा स्थापित किये जाने वाले मत्स्य विकास निधि के बैंक खाते में जमा की जायेगी जिसका उपयोग जिलाधिकारी के निर्देशानुसार मत्स्य विकास कार्यक्रमों में व्यय किया जा सकेगा।
10. मत्स्य आखेट पट्टा/नीलामी से क्षुब्ध व्यक्ति पट्टा/नीलामी की स्वीकृति की तिथि से 30 दिन के अन्दर सम्बन्धित मण्डलायुक्त को अपील कर सकता है। मण्डलायुक्त के आदेश के विरूद्ध 30 दिन के अन्दर राजस्व परिषद में निगरानी योजित की जा सकती है और निगरानी में पारित आदेश अन्तिम आदेश होगा।
(घ) मत्स्य आखेट हेतु शर्ते
(1) पट्टाधारक/नीलामी प्राप्तकर्ता द्वारा प्रत्येक वर्ष 01 जून से 31 अगस्त तक नदियों में मत्स्य आखेट प्रतिबन्धित रखा जायेगा।
(2) पट्टाधारक/नीलामी प्राप्तकर्ता के द्वारा बहती हुयी नदी/जलधारा के प्रवाह को रोकने का प्रयास नहीं किया जायेगा और न ही नदी/जलधारा में बाड़े (Fixed Engine) लगाये जायेंगे।
(3) मछुआरों के आर्थिक एवं सामाजिक उत्थान हेतु नदियों में बढ़ते हुए प्रदूषण एवं घटती हुई मत्स्य सम्पदा के दृष्टिगत पट्टाधारक/नीलामी प्राप्तकर्ता द्वारा मत्स्य विभाग के अधिकारियों की देखरेख में 2000 मत्स्य अंगुलिका (70 से 100 मि०मी०आकार) प्रति किमी० की दर से भारतीय मेजर कार्प मत्स्य प्रजातियों को नदियों में पुनर्स्थापित करने के लिए रिवर रैन्चिंग कराया जायेगा।
(4) पट्टाधारक/नीलामी प्राप्तकर्ता नदी में कोई ऐसा विषैला अथवा विस्फोटक पदार्थ उपयोग में नहीं लायेगा जिससे जल प्रदूषण एवं जलीय जीव जन्तुओं की मृत्यु होने की सम्भावना हो।
(5) पट्टाधारक/नीलामी प्राप्तकर्ता को नदी में कछुआ, घड़ियाल, गैन्जेटिक डॉलफिन, मगर एवं अन्य प्रतिबन्धित जलीय वन्य जीवों को पकड़ने का अधिकार नहीं होगा।
(6) मत्स्य आखेट हेतु प्रतिबन्धित श्रेणी के जाल का प्रयोग नहीं किया जायेगा।
(7) पट्टाधारक/नीलामी प्राप्तकर्ता को नदी के उस भाग में जो उसने नीलाम में लिया है प्रतिबन्धित अवधि में जीरा एकत्र करने का कोई अधिकार नहीं होगा।
(8) मत्स्य विभाग की परिस्थित विशेष में जबकि मछली के सम्पूर्ण विनाश का भय उत्पन्न हो जावे तो शिकारमाही बन्द करने अथवा नियंत्रित करने का पूर्ण अधिकार होगा।
(9) मत्स्य विभाग के कर्मचारियों/अधिकारियों को नदी में अनुसंधान कार्य हेतु प्रायोगिक शिकारमाही करने में पट्टाधाकर/नीलामी प्राप्तकर्ता को कोई आपत्ति नहीं होगी।
(10) पट्टाधारक/नीलामी प्राप्तकर्ता को समय पर राज्य सरकार द्वारा मत्स्य पालन व मत्स्य आखेट हेतु जारी आदेशों का पालन करना अनिवार्य होगा।
(11) यदि पट्टा आवंटन/नीलामी की अवधि में पट्टाधारक आवंटन/नीलामी की शर्तों का उल्लंघन करता है, तो जिलाधिकारी आवंटी/नीलामी प्राप्तकर्ता को कारण बताओ नोटिस जारी करके आवंटन/नीलामी निरस्त कर सकेगा और पुनः नीलामी की कार्यवाही की जायेगी।
(12) किसी मामले में यदि मा० उच्चतम न्यायालय, मा० उच्च न्यायालय, राष्ट्रीय हरित प्राधिकरण (एन०जी०टी०) या अन्य कोई न्यायालय का आदेश है तो वह प्रभारी रहेगा।
भवदीय,
सुरेश चन्द्रा
प्रमुख सचिव"
23. Under the relevant Government Order dated 10.01.2019, which holds the field, the concerned District Magistrate is required to constitute Tehsil Level Fishing Hunting Committees under the chairmanship of the Sub Divisional Officer. Paragraph-Ga of the Government Order dated 10.01.2019 provides preference of eligible Matya Jivi Sahkari Samities, wherein the first preference is to be given to the Sahkari Samiti registered under the Act, 1965, which has been formed by the persons of fishing community of the concerned village. The second and third preferences are to be given to the registered Societies of persons of fishing community of concerned Nyay Panchayat Kshetra and concerned Development Block respectively. The fourth preference is to be given to the registered Societies of the persons of fishing community of the concerned District. The fifth preference is to be given to the registered Societies of the persons of fishing community, who are resident of the State of Uttar Pradesh and the sixth preference is to be given to the registered Societies of persons belonging to the Scheduled Caste and Scheduled Tribe.
24. The paragraph-3 of the explanation appended to Para-Ga of the aforesaid Government order provides that if the river of earmarked fishing hunting area is flowing between the boundaries of two districts towards east-west then the District Magistrate of North district shall conduct the auction/lease for the first years and the District Magistrate of South district shall conduct the auction of the second year. In the same manner, if the river flows towards North-South, then the District Magistrate of the East district shall conduct the auction/lease for the first year and the District Magistrate of the West district shall conduct the auction/lease for the second year. This arrangement will continue in future. In accordance with provisions contained in Government order dated 10.01.2019 the District Magistrate, Auraiya has published the impugned advertisement for District Auraiya and District Jalaun (jointly) inviting applications for according fishery rights in respect of the rivers/ponds mentioned in the advertisement at serial nos.1 to 17 wherein the concerned part of river ‘Yamuna’ has been demarcated as Jal Bhag No.1.
25. The petitioner is a Society registered under the Act, 1965 since 02.08.1986, having its registered office at Gadhakasda, Vikas Khand Chakarngar, 81 Maal Godam Road, District Etawah and is engaged in the occupation of fisheries. Mohd. Idrees is the Secretary of the Society and Shri Amar Singh is its President. The area of operation of the petitioner Society is ‘Vikas Khand Chakarnagar’, which is also admitted by the petitioner in its application dated 04.05.2022 moved before the District Magistrate, District Jalaun at Orai, which is appended as Annexure No.4 to the writ petition, wherein it has been accepted that the area of operation of the petitioner Society is ‘Vikas Khand Chakarnagar’. It is also apparent from the registration certificate of the petitioner Society that the petitioner Society is registered on the application submitted under Section 6 of the Act, 1965 and the said Society is registered in compliance of the said Act, Rules made thereunder and the general or special orders issued and the bye-laws of the said Society at Etawah District at Serial No.158.
26. The Government order dated 10.01.2019 issued in pursuance of the directions of this Court in Writ C No.31309 of 2018, does not violate rights of any person under Article 19 (1) (g) and Article 14 of the Constitution of India. The directions issued by the State Government itself provide that settlement of fishing right shall be done with proper and extensive publicity so that all persons, who are eligible to participate, may be aware of such proposed settlement and may participate in the auction. The Government order itself contemplates "wide publicity" and the Tehsil Level Committee is constituted under the chairmanship of the Sub Divisional Officer. The Government order provides the procedure for auction of the fishing rights over the rivers. In pursuance of the aforesaid Government order, the auction was held for Jal Bhag No.1 of river Yamuna on 21.08.2023, wherein the bid of the respondent no.4 on the minimum price of Rs.1,56,06,265/- was accepted.
27. The petitioner has 80 members belonging to fishing community. After bifurcation of District Etawah, 35 members of the petitioner society became resident of District Auraiya through which the Jal Bhag-1 of river ‘Yamuna’ is flowing and remaining 45 members of the Society reside in the villages of District Etawah through which Jal Bhag No.1 of river ‘Yamuna’ flows. Admittedly, the area of operation of the petitioner Society is Vikas Khand Chakarnagar, District Etawah, which is clearly reflected from the application of the petitioner dated 04.05.2022 moved before the District Magistrate, District Jalaun at Orai, wherein it has been accepted that the area of operation of the petitioner Society is ‘Vikas Khand Chakarnagar’. Rule 15 of Chapter III of the Rules, 1968 provides for the name and headquarters of the Society and the area of operation. Clause-4 of the registered bye laws of the petitioner Society deals with the area of operation and it mentions the area of operation of the Society as ‘whole Vikas Khand Chakarnagar’, which consists of 64 village panchayats. Chapter-VI of the Rules, 1968 deals with the procedure regarding amendment of the bye-laws. Once at the time of registration of the society on 02.08.1986, the District Auraiya was not in existence and there was only one district i.e. District Etawah and the members of the Society were resident of one district Etawah then after bifurcation of the district Etawah in the year 1997, the petitioner Society was at liberty to seek amendment in the area of operation in its bye laws as per Rule 30 (g) of Chapter IV of the Rules, 1968. Admittedly, the petitioner had not sought any amendment regarding area of operation and as such, the petitioner cannot operate beyond the area of operation i.e. ‘Vikas Khand Chakarngar, Etawah’.
28. It also transpires from the record that the petitioner Society was registered on 02.08.1986 as per provisions contained under the Act, 1965 and the rules made thereunder. The registration certificate of the petitioner Society was issued by the Registrar, Fishing Cooperative Societies, Uttar Pradesh under Section 8 (1) of the Act, 1965 certifying that ‘Matsya Jivi Sahkari Samiti Limited, Gadhakasda, Vikas Khand Chakarnagar’ was registered upon the application submitted by the Society under Section 6 of the Act, 1965. The name of the petitioner Society finds place at serial no.158 of the registered Societies. Therefore, the petitioner Society is undisputedly registered at District Etawah and the same is also admitted by the petitioner in view of description given in the cause title viz “Matsya Jivi Sahkari Samiti Limited having its registered Headoffice & Office at Gadhakasda, Vikas Khand Chakarnagar, 81 Maal Godam Road, District Etawah through its Secretary Mohd. Idrees and its President Shri Amar Singh. The same is also admitted from the application of the petitioner dated 04.05.2022 submitted before the District Magistrate, Jalaun at Orai. Admittedly, the area of operation of the petitioner Society is “Vikas Khand Chakarnagar, Etawah”.
29. In Matsyajivi Sahkari Samiti Ltd (supra) the Division Bench had considered the similar Government order dated 17.10.1995, which provides separate procedures for granting fishing rights for more than 2 hectares and less than 2 hectares. The Government order dated 17.10.1995 specifically mentions that the Scheme is framed keeping in view that the benefit of the scheme be availed by the persons of fishermen community and leases of ponds and tanks could not be made in favour of middlemen and unsocial elements. The scheme has been framed as a measure of social justice to provide means of livelihood to fishermen and other similar communities, who had been traditionally engaged in fishing. Relevant paragraphs 28 and 29 of the judgement are reproduced herein below:-
“28. It has further been provided in Para 60(2)(b)(5) of the category that lease may be given to any desirous persons of concerned village failing which to Nyaya Panchayat of concerned village, thereafter to concerned Development Block and thereafter to Cooperative Society of the district. The directions issued by the State Government under Section 126 of UPZA&LR Act read with Rule 115(a)(3) of the Rules 1952 have been considered by a Full Bench of this Court referred in [2006(24)LCD59]; Ram Kumar and Others Vs. State of U.P. and others and this Court has upheld the validity of the directions issued. The relevant paragraphs 23 and 24 of which are reproduced as under:
"23. 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 organize 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 not 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 organize themselves and carry on their traditional vocation for the benefit of large part of weaker section of the society.
24. 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 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)."
29. In view of above, the fishing rights can be allotted in the preferential order prepared by the Government keeping in mind the customary rights. The cooperative society of the petitioner falls in para 60(B)(3)(a) whereas the cooperative society of the respondent no. 5 falls within para 60(B)(1)(c) which is above the category of petitioner. Accordingly, we are of the considered opinion that the respondent no. 5 has rightly been awarded the fishing rights in accordance with law and there is no illegality or infirmity in the same. Hence, the writ petition is misconceived, lacks merit and deserves to be dismissed.
(Emphasis supplied)
30. In Parvej Aktar and others Vs. Union of India and others 1993 (2) SCC 221, the Apex Court had occasion to consider the orders issued under Section 3 (1) of Handlooms (Reservation of Articles for Production) Act, 1985 reserving certain articles of exclusive production of handlooms. Challenge was made to the order of reservation for exclusive production of handlooms on the ground of violation of Article 19(1) (g) by certain persons. The Apex Court noticed the provisions of Article 45 of the Constitution, which require the State to promote with special care the educational and economical interests of the weaker sections of the people. The protection was given by the Government to handloom weavers because the livelihood of handloom weavers was threatened due to production of all types of items and varieties by the powerloom industry. Following observations were made by the Apex Court in paragraphs 56 & 58 of the said judgment:-
"56. The protection has been given by the Government to handloom weavers because the livelihood of handloom weavers is threatened due to the production of all types of items and varieties by the powerloom industry. It is common knowledge that the handloom weavers are economically very poor and will have no alternative employment in the rural areas unless protected through reservation of varieties for them. So poor is the weaver that he could well say in the words of Karl Marx: "Half a century on my back and still a pauper."
58. No doubt, there are restrictions under the impugned order but the question would be whether they are reasonable. The Act, as seen above, has come to be enacted for the protection of the interests of the handloom weavers, mostly concentrated in rural areas. They are pitted against a powerful sector, namely, the mills and the powerloom. As such, they face unequal competition. The restrictions are not only reasonable but also fully justified. Further, the objectives sought to be achieved by way of these restrictions should derive support from Article 43 of the Constitution which reads as follows:-
"43. Living wage, etc., for workers.- The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or cooperative basis in rural areas."
31. In Ram Kumar’s case (supra) the Full Bench has held 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. 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 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 objective as displayed from the directions of the State Government 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.
32. It is evident that the petitioner has challenged the Clause-Ga of the Government order dated 10.01.2019 by means of amendment application dated 15.10.2023 after lapse of more than four years and there is no explanation for the delay. Once the impugned advertisement dated 28.07.2023 has been challenged on the basis of the Government order itself then it cannot be challenged in the same writ petition by means of amendment application. Further, the petitioner has already taken the benefit of the said Government order and secured three fishing leases in the year 2022-23.
33. The said aspect of the matter has been considered by the Supreme Court in the case of Karnataka Power Corpon. Ltd. Vs. K. Thangappan (2006) 4 SCC 322. Relevant part of the judgement is reproduced herein below:
“6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Shri Balwant Regular Motor Service. Sir Barnes had stated:
“Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy.”
8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”
34. The Supreme Court in the case of BSNL v. Ghanshyam Dass (2011) 4 SCC 374 has held as under :
“26. On the other hand, where only the affected parties approach the court and relief is given to those parties, the fence-sitters who did not approach the court cannot claim that such relief should have been extended to them thereby upsetting or interfering with the rights which had accrued to others.
7. In Jagdish Lal v. State of Haryana, the appellants who were general candidates belatedly challenged the promotion of Scheduled Caste and Scheduled Tribe candidates on the basis of the decisions in Ajit Singh Januja v. State of Punjab, Union of India v. Virpal Singh Chauhan and R.K. Sabharwal v. State of Punjab and this Court refused to grant the relief saying: (Jagdish Lal case, SCC pp. 562-63, para 18)
“18. … this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution. It is not necessary to reiterate all the catena of precedents in this behalf. Suffice it to state that the appellants kept sleeping over their rights for long and elected to wake up when they had the impetus from Virpal Chauhan and Ajit Singh ratios. But Virpal Chauhan and Sabharwal cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation to all the persons prior to the date of judgment in Sabharwal case which required to be examined in the light of the law laid in Sabharwal case. Thus earlier promotions cannot be reopened. Only those cases arising after that date would be examined in the light of the law laid down in Sabharwal case and Virpal Chauhan case and equally Ajit Singh case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed. In A.B.S. Karamchari Sangh case a Bench of two Judges to which two of us, K. Ramaswamy and G.B. Pattanaik, JJ. were members, had reiterated the above view and it was also held that all the prior promotions are not open to judicial review. In Chander Pal v. State of Haryana a Bench of two Judges consisting of S.C. Agrawal and G.T. Nanavati, JJ. considered the effect of Virpal Chauhan, Ajit Singh, Sabharwal and A.B.S. Karamchari Sangh cases and held that the seniority of those respondents who had already retired or had been promoted to higher posts could not be disturbed. The seniority of the petitioner therein and the respondents who were holding the post in the same level or in the same cadre would be adjusted keeping in view the ratio in Virpal Chauhan and Ajit Singh; but promotion, if any, had been given to any of them during the pendency of this writ petition was directed not to be disturbed.”
35. The Supreme Court in the case of State of Uttaranchal v. Shiv Charan Singh Bhandari. (2013) 12 SCC 179 has held as under :
“19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.
28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court.”
36. The Supreme Court in the case of C. Jacob v. Director of Geology and Mining (2008) 10 SCC 115 has held as under :
“10. Every representation to the Government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim.In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.”
37. The Supreme Court in the case of Union of India v. M.K. Sarkar (2010) 2 SCC 59 has held as under :
“15. When a belated representation in regard to a ‘stale’ or ‘dead’ issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the ‘dead’ issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.”
38. The Supreme Court in the case of Union of India and others v. Chaman Rana (2018) 5 SCC 798 has held as under:-
“10. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief, was considered in Gandhinagar Motor Transport Society v. Kasbekar [Gandhinagar Motor Transport Society v. Kasbekar, 1953 SCC OnLine Bom 64 : AIR 1954 Bom 202] , by Chagla, C.J. observing as follows: (SCC OnLine Bom : AIR p. 203, para 2)
“2. … Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extra-legal or extra-judicial. Once the final decision of the Government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner. …”.
39. The impugned Government order/circular is a realm of policy decision of the State Government and considering the aim and object of the said Circular, we do not find any illegality in the same. The scope and ambit of the interference in the policy matter is very limited and the same cannot be interfered by the Court in a routine manner. Such policy decisions can be interfered by the court in case it is primarily contrary to the relevant Act or Rules framed thereunder or the same is contrary to the provisions guaranteed under Chapter III of the Constitution of India. It can also be challenged on the ground of jurisdiction of the authority, who has issued the same or the said authority is incompetent. We have carefully scrutinized the Government order/circular dated 10.01.2019 in detail and we do not find any infirmity which warrants any interference in the said Government order/circular by this Court. The judgment of this Court in Matsyajivi Sahkari Samiti Limited (supra) is squarely applicable in the present case and therefore, challenge to the Government order/circular dated 10.01.2019 stands rejected.
40. In a catena of judgments passed by the Apex Court, the scope of interference by the courts in matters of policy is well established. Judicial review is the cornerstone of constitutionalism and is a part of our basic structure. Despite this understanding, the Supreme Court has time and again reiterated how, by way of judicial review, policy decisions of the State should not be interfered with unless they are grossly arbitrary or irrational as there is a need to maintain separation of powers.
41. In Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India & Ors., (1981) 1 SCC 568, the Apex Court has observed as under:-
"35. A pragmatic approach to social justice compels us to interpret constitutional provisions, including those like Articles 32 and 226, with a view to see that effective policing of the corridors of power is carried out by the court until other ombudsman arrangements — a problem with which Parliament has been wrestling for too long — emerges. I have dwelt at a little length on this policy aspect and the court process because the learned Attorney-General challenged the petitioner's locus standi either qua worker or qua citizen to question in court the wrongdoings of the public sector although he maintained that what had been done by the Corporation was both bona fide and correct. We certainly agree that judicial interference with the administration cannot be meticulous in our Montesquien system of separation of powers. The court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a government company has acted fairly, even if it has faltered in its wisdom, the court cannot, as a super-auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration."
42. In Directorate of Film Festivals & Ors. v. Gaurav Ashwin Jain & Ors., (2007) 4 SCC 737, the Apex Court had observed as follows:-
"16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review (vide Asif Hameed v. State of J&K [1989 Supp (2) SCC 364] , Sitaram Sugar Co. Ltd. v. Union of India [(1990) 3 SCC 223] , Khoday Distilleries Ltd. v. State of Karnataka [(1996) 10 SCC 304] , BALCO Employees' Union v. Union of India [(2002) 2 SCC 333] , State of Orissa v. Gopinath Dash [(2005) 13 SCC 495 : 2006 SCC (L&S) 1225] and Akhil Bharat Goseva Sangh (3) v. State of A.P. [(2006) 4 SCC 162] )."
43. The aforementioned observation had also been made in Indian Railway Catering and Tourism Corporation Ltd. v. Indian Railway Major and Minor Caterers Association and Ors. (2011) 12 SCC 792. The Apex Court held that policy decisions of the Government should not be interfered with unless the policy is contrary to provisions of statutory rules or of the Constitution. In the said case, no illegality or unconstitutionality had been shown and the Apex Court held as under:-
"2. By the impugned order, the High Court has interfered with the Catering Policy of 2005 in respect of reservations. By now it is a well-settled principle of law that policy decisions of the Government should not be interfered with in a routine manner unless the policy is contrary to the provisions of statutory rules or of the Constitution. Nothing has been brought to our notice that the Policy is contrary to the provisions of the statutory rules or the Constitution. For this simple reason, we set aside the order of the High Court impugned herein."
44. In Jacob Puliyel v. Union of India and Ors. 2022 SCC OnLine SC 533, though the Supreme Court was broadly examining policy decisions pertaining to health, it had observed that in exercise of their judicial review, Courts should not ordinarily interfere with the policy decisions of the Executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness, etc. The relevant portion of the judgment stating the same is as under:-
"21. We shall now proceed to analyse the precedents of this Court on the ambit of judicial review of public policies relating to health. It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary."
45. Recently in Jai A. Dehadrai and another vs. Government of NCT of Delhi and another27 the Apex Court had observed as follows:-
“12. Depending upon the number of undertrials and prisoners, the State has taken a decision of capping total number of visits by family members, relatives, friends and legal advisers to two times a week and it cannot be said that the said decision is completely arbitrary. The said decision has been taken after careful consideration of the facilities available in the prisons, availability of the staff and the number of undertrials.
13. In matters of policy, the Courts do not substitute its own conclusion with the one arrived at by the Government merely because another view is possible. Therefore, this Court is not inclined to pass any order issuing writ of mandamus. However, keeping in view the fact that the present PIL is not an adversarial litigation and the petition has been filed in the interest of prisoners, this Court permits the Petitioner to give a representation to the State providing suggestions, which this Court expects that the State will consider in the right spirit.”
46. From the above pronouncements made by the Apex Court, it is well settled that in exercise of their powers of judicial review, the Courts do not ordinarily interfere with policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness or unfairness etc. If the policy cannot be touched on any of these grounds, the mere fact that it may affect the interests of a party does not justify invalidating the policy. The objective as displayed from the directions of the State Government 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.
47. It is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the Executive to formulate, change, vary and/or modify the policy which appears better to the court. The scope of judicial review is very limited in such matters. It is only when a particular policy decision is found to be against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide, the court would interfere with such policy decisions. In the present matter, no such case is made out.
48. The writ petition is accordingly dismissed on both counts, on the merits as well as on the ground of delay and laches. No order as to costs.
