S.H.A. RAZA, J.

Gram Panchayat Kanta Gulzarpur, pargana Bangarmau, teh-sil Safipur, Block Bangarmau, Post Kanta Gulzarpur, district Unnao through its Pradhan Smt. Shamshul has filed the present writ petition praying for issuance of a writ in the nature of certiorari quashing the im pugned order dated 30-1-96 pertaining to approval of the proposal for renewal of lease for fishing rights in favour of opposite party No. 3. The petitioner also prayed for quashing of the certificate of renewal issued in favour of opposite party No. 3 and not to implement or operate certificate of renewal issued by opposite party No. 2 in favour of opposite party No. 3.

2. The factual matrix in short compass is that on 8-8-86 respondent No. 3 Sri Fariduzama Khan was granted a lease for ten years pertaining to fishing rights in the pond in question. The agreement for the said lease-deed was executed on 17-12-86. Admittedly, the period of lease deed expired on 17-12-96. A year before from the date of expiry of the lease opposite party No. 3, Sri Fariduzama Khan preferred an application before the respondents No. 1 and 2 for renewal of the lease for a further period of five years.

3. According to para 60 (2) kha of the Gram Sabha Manual such leases can be renewed for a period of five years if the work of the lessee was satisfactory.

4. As the certificate of renewal of the lease was not granted to respondent No. 3 Sri Fariduzama Khan he preferred a writ petition bearing No. 2207 (Ma) of 1996 praying that Up Zila Adhikari Safipur, Unnao, be commanded to issue certificate. On 30-7-96 a Division Bench of this Court passed the following order:

"list on 19-8-1996.

Contention of the petitioners counsel is that petitioners application for renewal of fisheries right has been accepted but the certifi cate has not yet been issued. He also filed a copy of the said acceptance contained in annexure No. 13. In these circumstances we direct the opposite party No. 2 Up Zila Adhikari Safipur, Unnao, either to issue a certificate in accordance with order alleged to be passed in favour of the petitioner or file counter affidavit before 16-8-96 as to why the same has not been granted. In the meantime status quo be maintained. "

5. Although the Up Zila Adhikari, Safipur, Unnao, was ordered to either issue a certificate or file counter affidavit before a particular date indicating as to why the same may not be granted, he preferred to issue the certificate in favour of respondent No. 3 and also got the lease deed executed, when no such specific order was passed by the Court. It was submitted that in pursuance of the said order and the lease deed the opposite party No. 3 started fishing into the pond in question.

6. Ultimately on 4-12-96 a Division Bench of this Court finally dismissed the writ petition which was filed by Sri Fariduzama Khan because of its having be come infructuous, may be for the reason that certificate was already issued in his favour and he had started fishing in the pond in question. However, this Court on 4-12-96 provided that it would be open for the Gaon Sabha to challenge the renewal of the lease of the petitioner in accordance with law. In the body of the order the Court has noted down the submission advanced on behalf of the Gaon Sabha, whose counsel Sri D. C. Mukherjee had submitted that the amended portion of the para 60 (2) Kha of the Gaon Sabha Manual and other Government Or ders were not brought to the notice of the Court by the petitioner, which provided that the first preference in the matter of licence/lease for fishing rights was to be given to the Registered Cooperative Societies of the fishermen recognised by the Fisheries Department thereafter the Cooperative Societies of the concerned Nyaya Panchayat area/block level area. If no such cooperative society existed in the area then it would be given to the persons tradi tionally engaged in such profession like Machchua, Mallah, Kewat, Bind, Lodhi, Dheewar, Dhimar, Kashyap, Bothom, Raikwar, Manjhi, Godia, Kahar, Sureha or Suraha. In absence of such persons the members of the community of fishermen mentioned above of the concerned Nyaya Panchayat area/block level area, thereafter to the members of Schedule Caste/schedule Tribe community of Gaon Sabha and only then other persons Gaon Sabha/nyaya Panchayat/block level area.

7. The Division Bench further noted down that although the Collector approved the renewal of the lease of the petitioner Sri Fariduzama Khan but he was reluctant to issue certificate or pass orders for fishing because of the existence of the aforesaid rules and the Government Orders. But as soon as the interim order dated 30-7-96 was passed, the respondents taking the ad vantage under the cover of the order ex ecuted lease in favour of the petitioner al though no direction was issued to them to execute the lease-deed.

8. Even after dismissing the writ peti tion filed by Sri Fariduzama Khan this Court kept it open for the Gaon Sabha to chal lenge the renewal of the lease of Sri Fariduzama Khan in accordance with law. The present writ petition has been filed on behalf of the Gaon Sabha, mainly on the ground that the renewal of the lease deed in favour of Sri Fariduzama Khan was bad in law in view of para 60 (2) Kha of the Gaon Sabha Manual and the Government Orders issued from time to time in that regard under the provision of Section 126 of the U. P. Z. A. & L. R. ACT.

9. As soon as this writ petition was entertained and response was filed from the side of Sri Fariduzama Khan respondent No. 3, an objection was raised that the writ petition is not maintainable as it was not filed by a panel lawyer appointed in accord ance with the Gaon Sabha Manual nor spe cial counsel was appointed with the concur rence or consent of the Collector. It was submitted that for the aforesaid reasons the writ petition should be thrown out. In that regard reliance was placed upon a decision of this Court in the case of Baburam Varma v. Sub Divisional Officer Akbarpur, (1996) 3 UPLBEC, 2028 [LQ/AllHC/1996/84] , wherein it was indicated that para 129 of Gaon Sabha Manual no doubt authorised the Land Management Committee to conduct the litigation by resolution. Para 131 of the Gaon Sabha Manual provides that lawyer shall be ap pointed who shall represent Bhumi Prabandhak Samiti and give legal advice, when necessary, but it further provides that the Committee shall not engage any lawyer other than the panel lawyer appointed. However in important cases, special lawyers can be engaged with the specific permission of the Collector in writing.

10. Undoubtedly, the present writ peti tion as filed by the Gaon Sabha through his counsel Sri D. C. Mukherjee who is neither the panel lawyer nor he was engaged to conduct this case with the special permis sion of the Collector in writing. In view of the aforesaid reasons Sri Arif Khan, learned counsel appearing on behalf of respondent No. 3, with his usual style of vehemence submitted that as the writ petition was not filed by a counsel properly designated to conduct this writ petition it should be dis missed on this preliminary objection.

11. No doubt the writ petition was filed by the petitioner, through its lawer Sri D. C. Mukherjee, who was not specifically em powered to prefer this writ petition by the District Magistrate concerned. The ques tion which remains to be considered by this Court is whether due to that defect the peti tion should be dismissed on merits. How ever, it is pertinent to mention here that Sri R. N. Gupta, a panel lawyer, appointed in accordance with the provisions contained in Gaon Sabha Manual has filed his power on behalf of the petitioner.

12. If we assume that initially the writ petition was not filed by a person duly authorised in accordance with the Gaon Sabha Manual and later on the power has been filed by a person who is not only com petent to file the said petition or argue the same, we are of the view that defect, if any, stood cured. The view which we have ex pressed finds support by a decision of this High Court in the case of Birkha v. The State & others, reported in 1968 A. W. R. 811, where a pleader was duly authorised to ap pear and plead for him in the trial court and in the appellate court, the Court observed that where a pleader was duly authorised to plead for him in the trial Court and in the appellate Court, the defect, if any, in his power of attorney would not effect the merit of the decision of the appellate Court.

13. Even earlier, in the case of Kodi Lal v. Ch. Ahmad Hasan and others, AIR (32) 1945 Oudh, 200, also it was observed that where an appeal is filed by an advocate without any power, in the bona fide belief that the same had been filed in the lower court and the mistake is remedied as soon as it comes to the notice, though after expiry of limitation, the initial defect, if any, is cured.

14. In Shastri Yagnapurushdasji v. Muldas Bhundardas Vaishya, AIR 1966 SC1119 (at pages 1123-1124) Vakalatnama by the appellant was filed in favour of Government pleader. Memo of appeal and vakalatnama were presented in the High Court by Assis tant Government pleader working in the same office. Irregularity was not noticed even by the Registrar and the appeal was duly admitted and came up for hearing. In the light of that situation it was observed by Honble Supreme Court that memorandum of appeal though technically irregular, no party would suffer for mistake of the Court or its officers. Honble Supreme Court jus tified the order of the High Court in allow ing the Government pleader to sign the vakalatnama and the appeal.

15. In view of the aforesaid decisions if the vakalatnama has not been filed or was initially defective in any manner or if proper vakalatnama was filed subsequently which was brought on record the mistake or defect stood cured and it would not effect the decision of the writ petition on merit. In view of the fact that Sri R. N. Gupta has filed his vakalatnama who is panel lawyer ap pointed under the provisions of Gaon Sabha Manual in favour of the petitioner, the defect initially, stood cured and for that reason the writ petition cannot be dis missed.

16. As far the merit of the submission is concerned we have to look into the provisions of para 60 (2) Kha of the Gaon Sabha Manual which provides that preference would be given in the matter of grant of lease for fishing and singhara rights in order of preference as indicated at page 3 of the judgment.

17. Admittedly, Sri Fariduzama Khan, respondent No. 3, does not belong to any preferential community mentioned under 60 (2) Kha of the Gaon Sabha Manual. He can be granted the licence/lease only if per sons belonging to preferential categories mentioned are not available. It was vehe mently submitted by the learned counsel for the respondent No. 3 that the provisions of amended portion of para 60 (2) Kha of the Gaon Sabha Manual can be made ap plicable only at the stage of entering into the lease, but it cannot be made applicable at the time of renewal of lease because under para 60 (2)Ka a lease granted to any person can be renewed for five years if the work had been satisfactory. He laid emphasis that para 60 (2) Ka, in spite of amendment made in para 60 (2) Kha has been kept alive hence renewal of the lease in favour of respondent No. 3 was perfectly valid.

18. This argument appears to be falla cious. Admittedly the lease can be renewed for five years, but according to the amended portion of para 60 (2) Kha lease can only be given in order of preference. Besides the above there is another order dated 22-3-1994 issued by the Agriculture Production Commissioner, U. P. Lucknow, to all the District Magistrates which provides that on 4-1-94 the provisions of Gaon Sabha Manual have been amended and in future lease for fishing and breeding rights will be granted and its renewal will be done in ac cordance with the amended portion of the amended provisions of the Gaon Sabha Manual. It has been emphatically made clear that even at the time of renewal of the lease the order of preference as contained in para 60 (2) Kha shall be strictly followed and only thereafter the lease should be renewed.

19. Sri Arif Khan, learned counsel for the respondent, submitted that the said direction issued by the Agriculture Produc tion Commissioner cannot be said to be a government order and in presence of para 60 (2) Ka which permits renewal of the licence has no effect. The argument is mis conceived in view of Section 126 of the U. P. Z. A. and L. R. Act which provides that the State Government may issue such orders and directions to the Land Management Committee as may appear to be necessary for purposes of this Act. It cannot be said that the directions dated 22-3- 1994 issued by Agriculture Production Commissioner U. P. has not been issued for purposes of this Act. The direction issued has a statutory force, inasmuch as it has been issued under Section 126 of the U. P. Z. A. and L. R. Act.

20. We have to examine the policy decision or direction of the State Govern ment and the provisions of para 60 (2) Kha of the Gaon Sabha Manual in view of the constitutional provisions.

Article 38 (2) of the Constitution provides that:

"the State shall, in particular, strive to mini mise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and op portunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. "

Article 39 (c) of the Constitution of India also provides that:

"the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. "

Article 46 provides that:

"the State shall promote with special care the educational and economic interest of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. "

21. If the State Government under the provisions of Article 15 (4) of the Constitu tion and Directive Principle of the State Policy passed Government Orders which are contained in Gaon Sabha Manual or other order, it cannot be said that it amounts to discrimination because the State can make any special provision for the advancement of any socially and education ally backward classes of citizens.

22. It has also been contended that neither any cooperative society nor any per son belonging to the caste of Mallah and Nishad etc. were available in the village in question hence the lease in favour of respondent cannot be faulted. But this Court cannot ignore that one community, i. e. , Kahar, was available and, therefore, it was incumbent upon the authorities to have followed the provision pertaining to preferences contained in Gaon Sabha Manual or other Government Orders, while renewing the Theka in favour of the respon dent No. 3 but even when persons belonging to other preferential categories were not considered and the lease deed was renewed in favour of the respondent No. 3.

23. We are definitely of the view that grant of renewal of licence in favour of respondent No. 3 was not in accordance with law inasmuch as it was in contravention of the provisions contained in para 60 (2) Kha of the Gaon Sabha Manual and the Governments directives.

24. it was next argued before this Court that there existed difference between grant of lease and renewal of the lease and as the matter in issue was renewal of lease, the provision of Para 60 (2) Kha of the Gaon Sabha Manual could not be made applicable to the present case. The argument is totally untenable inasmuch as because renewal also means the grant of lease in favour of a particular person and it was incumbent upon the authorities concerned while renewing the lease in favour of the respon dent Sri Fariduzama Khan to have first con sidered the cases of those persons who were mentioned in preferential category. As it was not done the grant of lease in favour of respondent No. 3 is non est and cannot be sustained.

25. The writ petition is accordingly al lowed. A writ in the nature of certiorari quashing the impugned order dated 31-1-96 approving the proposal for renewal of the lease to opposite party No. 3 for fishery rights in the pond in question and sub sequent issuance of a certificate of renewal in that regard in favour of respondent No. 3 is issued. A writ in the nature of mandamus is also issued commanding the respondents 1 and 2 to grant the licence/lease afresh in accordance with the provisions contained in para 60 (2) Kha of Gaon Sabha Manual and Government Orders to that effect.

Petition allowed.