Rajiv Kumar Shahi vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the petitioner. This dispute relates to the claim of the parties and their right to harvest the fish in respect of a pond said to be consisting of several plots in village Gajedar Tehsil Barhaj District Deoria. The pond was subject of an auction and the proceedings of the auction have been brought on record indicating that the petitioner and the President of the respondent No. 4 both participated in the auction proceedings. The bids were individually made by the petitioner and the president of the respondent No. 4 Samiti that are recorded on the bid sheet.

The 1/4th amount as per the conditions prescribed was deposited and the receipt was issued in the name of the petitioner. The said auction was approved by the Sub-Divisional Officer vide order dated 24.7.2004, which records that the money has been deposited by the petitioner on behalf of respondent No. 4 Sewa Samooh. The approval order was granted on the report dated 23.7.2004 where after a lease deed was executed on 6 september, 2004, copy whereof is Annexure No. 8 to the writ petition. The lease deed indicates that it is in the individual name of the petitioner but against the parentage of the petitioner, the name of respondent No. 4 the society has also been transcribed.

The operation of the pond was being carried out and for the purpose of depositing the amount of money as per the auction bid, a loan was transacted from a bank in the name of the society.

After 5 years in 2009, it appears a dispute arose and an order was passed on 4.7.2009 by the Sub-Divisional Officer/Deputy Collector, Barhaj and allowing the society collectively to operate the pond and police force was also provided. The petitioner was aggrieved by the said order contending that auction had been finalized only in favour of the petitioner and not in favour of the society, as such the said order, which was ex-parte without putting the petitioner notice deserves to be set aside. The writ petition was entertained and an interim stay order was passed on 17 September, 2009. The petition was finally allowed on 8.7.2013 directing the Sub-Divisional Officer to pass an order after hearing the party concerned. The Sub-Divisional Magistrate has now passed an order recording that the petitioner''s claim of his right to individually operate the pond is unfounded as the auction has been approved in favour of the society. Reliance has been placed by the Sub-Divisional Magistrate on the recital contained in the lease deed as well as the approval order.

Learned Counsel for the petitioner Shri Dhirendar Pratap Singh contends that the Sub-Divisional Magistrate erroneously proceeded to discard the evidence led in favour of the petitioner and his denial in the objections that the society has no right of the society to operate the pond which is admittedly an unregistered society. It is further submitted that the society had not in fact entered into any contract and therefore it is the claim of the petitioner which ought to have been allowed in as much as no objection was raised against the petitioner from 2004 to 2009. It is urged that the moving of the application before the Sub-Divisional Magistrate to decide the said claim was itself without authority and Sub-Divisional Magistrate had no jurisdiction to entertain this claim or decide an inter se dispute between the individual member of the society or collectively by the society against the petitioner individually. He therefore, submits that the order passed by the Sub-Divisional Magistrate deserves to be set aside.

Replying to the said submissions Shri Rajesh Kumar Dubey who has put in appearance on behalf of respondent No. 4 contends that it being a pure matter of contract and an internal dispute, the Sub-Divisional Officer has only clarified the position as reflected in the official document and in the event the petitioner is claiming any individual right against the society, then the petitioner can seek such a declaration in his private capacity against the respondent No. 4 by filing a suit.

Learned Standing Counsel has adopted the same arguments on behalf of respondent Nos. 1 and 2 and the learned Counsel for the respondent No. 3 Gaon Sabha.

Having heard the learned Counsel for the parties and having perused the order of approval as well as the lease deed executed, it is prima facie evident that the name of the society has been entered into the said documents The contention of the petitioner there fore, that such mention of the name of the society was superfluous is a disputed question of fact. The petitioner in a writ proceeding is questioning the contract entered into between the said society on the ground that the petitioner has an individual right under the said contract.

In the opinion of the Court this right claimed by the petitioner therefore, is basically against the society and it being a private dispute. The petitioner will have to establish his individual claim as against the claim of the respondent No. 4 society. It is also prima facie recorded that for the purpose of payment of the dues, loan has been extended in the name of the society and not to the petitioner.

Consequently, the financial transaction would also have a bearing on the intention of the contract as sought to be challenged by the petitioner before this Court in the exercise of writ jurisdiction.

Consequently, I am of the opinion that the petitioner may file a suit and in the event he does so any finding recorded by the Sub-Divisional Officer which are prima facie in the nature for administrative purposes will not be binding on the parties and they shall be free to lead independent evidence on the basis whereof findings can be arrived at by the competent Court on its own assessment of the status of the contracting parties and their intention. Consequently the writ petition is disposed of with the said observations.