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Interest in fishery lease can be acquired through succession: Allahabad High Court

Upon the death of the lessee, a fishery lease can be transferred to his legal heirs without seeking any prior permission and if any other law that contradicts such a nature is enacted, it will not place a restriction on this absolute nature of fishery lease. Hon’ble Justice Manoj Misra and Hon’ble Justice Ranjan Agarwal adjudged, “As succession takes place by operation of law on the death of the estate holder and death though is certain but the time of it cannot be controlled, particularly, when it occurs naturally, the successor in the event of death simply steps into the shoes of the estate holder immediately on his death, by operation of law and, therefore, no question of seeking prior permission to acquire interest arises” in Sheetal Vs. State of U.P and 5 Ors. [SPECIAL APPEAL DEFECTIVE No. – 240 of 2021]

The brief facts of the case are, the husband of respondent no.6 obtained a fishery lease for a period of 10 years in 2013. Later in the year 2015, respondent No.6 was elected as the member of the gram panchayat. In 2018, the husband of respondent No.6 died. Respondent no.6 applied for substitution as a lessee in place of her husband for the fishery lease. In 2019, the sub divisional magistrate allowed such an application and the respondent No.6 was made the lessee. Questioning such an order, a writ was filed by the appellant on the grounds that the respondent no. 6 cannot be substituted as a lessee without following due process as under Section 28 C of the U.P. Panchayat Raj Act, 1947 which was dismissed. Aggrieved by this, the appellant filed an appeal before the high court.

The learned judges after listening to both the counsels and reading the section 28C came to a conclusion that section 28C will not place any restriction on acquisition of interest in a fishery lease by succession. An analysis of section 28C revealed that such a clause was introduced to prevent misuse of power and unethical gains. Clause (a) of subsection (1) also said that any restrictions mentioned in that section would not be applicable to interests which were acquired by a member before he assumed office in the gram panchayat.

It was also observed that the section used the word ‘knowingly’ which was interpreted by the court in Horn Vs. State Ind, 445 N.E.2d 976-978  as “act is done “knowingly” or “purposely” if it is willed, is the product of a conscious design, intent or plan that it be done, and is done with awareness of probable consequences.” Since succession takes place post the death of a person, there is no possible to predict the occurrence of this uncertain event.

Applying this, the court said “When a person inherits the estate, it is by operation of law; the person steps into the shoes of his or her predecessor by devolution of interest which takes place immediately on the death of the predecessor though such devolution may be recognized later. Recognition of such devolution may be by way of mutation or substitution in the records but such mutation or substitution by itself does not create any right though it may amount to a recognition of the right. Thus, where the right devolves upon a person by operation of law on occurrence of an event over which a person does not have control, no occasion arises to seek for permission before such devolution”.

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