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Allahabad High Court · body

1992 DIGILAW 594 (ALL)

Jalaluddin v. State

1992-04-22

A.U.KHAN

body1992
JUDGMENT A.I. Khan, (Judicial) Member - The facts are: On 23.2.1987 L.M.C. as passed a resolution prepatory to grant fishing right of plot No. 42 area 86 decimal favouring Jalaluddin. The was submitted to Sub-Divisional. Officer for his approval. In the meanwhile on 30.8.1977 an enquiry report was submitted by Naib Tahsildar. Also Firoz Ahmad and Jamil Ahmad have lodged a protest against resolution. On 5.7.1987 Sub-Divisional Officer has rejected the resolution. 2. It appears, that there was much wrangling in the Session of L.M.C. as to who should be given the lease. On 19.10.87 Sub-Divisional Officer directs Naib Tahsildar to take suo moto action as it respects granting fishing rights. On 6.11.1986 Naib Tahsildar submitted his report for grant of fishing rights of plot No. 42 area 86 decimals to Jamil Ahmad. Also on 9.11.1987 he submits a report for grant of fishing rights of plot No. 109 area 65 decimal in favour of Firoz Ahmad. Sub-Divisional Officer deliberated and on 25.1.1988 has executed the lease to Jamil Ahmad and Firoz Ahmad in accordance with proposal of Naib Tahsildar. 3. Aggrieved by this order Jalaluddin moved Sub-Divisional Officer to recall his order dated 23.1.1988. Sub-Divisional Officer rejects this application on 19.5.88. Aggrieved by this order Jalaluddin files revision No. 7 of 1988 against the order dated 5.9.87. He also filed a second revision No. 264 against the order dated 19.5.1988. On 31.12.1988 Addl. Commissioner made a recommendation to set aside the order of Sub-Divisional Officer dated 5.9.1987. In consequence the revision is also to be allowed against the order dated 19.5.1988. 4. Heard the counsel for and against the reference. 5. A resume of the facts shows that Sub-Divisional Officer has not granted permission Jalaluddin by his order dated 5.9.1987. This order is revisable under Section 333/333-A Z.A. and L.R. Act. But further developments have transferred the order dated 5.9.1987 as Sub-Divisional Officer has himself executed the lease in favour of Jamil Ahmad and Firoz Ahmad on 23.1.1988. Now this order of Sub-Divisional Officer is under paragraph 62 (2) Kha of Gaon Samaj Manuai. This order is not open to challenge in Collector's and no revision is competent under Section 198 (4) Z.A. and L.R. Act as is elucidated in 1990 R.D. 14 (Hindi). In Civil Misc. Now this order of Sub-Divisional Officer is under paragraph 62 (2) Kha of Gaon Samaj Manuai. This order is not open to challenge in Collector's and no revision is competent under Section 198 (4) Z.A. and L.R. Act as is elucidated in 1990 R.D. 14 (Hindi). In Civil Misc. Writ Petition No. 3376/90 decided on 18.12.1990, not gone in reports as yet, it has been held that Collector has no jurisdiction to cancel such a lease. Also no revision is amenable to the jurisdiction of Commissioner or Board of Revenue. 6. There is also one more untenable position. The action of Sub-Divisional Officer granting lease independently of L.M.C. on 23.1.1988 is not judicial function. An application to set aside the same is rejected on 19.5.1988. This order too is a further step in that nonjudicial functions. So against the order dated 23.1.1988 or order dated 19.5.1988 no revision at the first instance is supportable in law. A revisional remedy is a crucial step. This is to follow the first step in a process which should be a judicial order in the court of first instance. So is not here. Then the reference dated 31.12.1988 is misconceived because it did not lay. 7. The counsel for revisionist has argued all the points taken in the memo of revision in Commissioner's. He has drawn my attention to elucidation by Addl. Commissioner at page 3. All this comes to little because order 23.1.1988 is not open to factual investigation in the absence of a provision of law. The order dated 5.9.1987 stands superseded by subsequent development. It is not now possible to enquiry and set aside Sub-Divisional Officer's order dated 5.9.1987 because it will entail infingement of subsequent allotment of fishing rights dated 23.1.1987. This order right or wrong, legal or not, is beyond the facts of this court, in revisional consideration. 8. Revision is not maintainable is hereby dismissed accordingly.