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2013 DIGILAW 1433 (ALL)

KANTA @ RAMAKANT v. STATE OF U. P.

2013-05-15

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Rituvendra Singh, holding brief of Sri R.C. Singh, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents, Sri Hemant Kumar, appearing for respondent No. 4 and Sri Vijai Bhan Singh, holding brief of Sri M.N. Singh, learned counsel for the Gaon Sabha. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 15.4.2013 passed by the Collector, Kushinagar, by which the petitioner’s fishery lease has been cancelled. 3. Sri Singh contends that the order impugned, passed by the Collector, is without jurisdiction as no application could be entertain under sub-section (4) of section 198 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (in short, ‘the Act’). 4. On being confronted as to whether the Collector has power to cancel the fishery lease or not, Sri Singh states that the Collector has power to cancel the fishery lease in view of the Government order dated 17.10.1995 but not under the provisions of Section 198(4) of the Act. 5. Sri Hemant Kumar has raised objection with regard to maintainability of the writ petition by submitting that the order impugned is revisable and the writ petition should be dismissed on the ground of alternative remedy. 6. I have heard learned counsel for the parties and considered their submissions. So far as the submission of Sri Singh with regard to entertaining of application under Section 198(4) of the Act is concerned, he is right to the extent that no application lies for cancellation of fishery lease under the aforesaid section, but it is not in dispute that the Collector has power to cancel the fishery lease under Government order dated 17.10.1995. It is settled law that wrong mentioning or non-mentioning of a section could not vitiate the proceeding if the authority/Court concerned has power to adjudicate upon the issue in question. Here, the issue in question was validity of fishery lease, on which finger was raised that during the settlement of lease, irregularities have been committed. The Collector has exercised its power may be under Section 198(4) of the Act, but that will not vitiate the proceeding as the Collector has power to cancel the lease, either it is agricultural lease or fishery lease, but under different provision. In my considered opinion, on this ground, the order cannot said to be without jurisdiction. The Collector has exercised its power may be under Section 198(4) of the Act, but that will not vitiate the proceeding as the Collector has power to cancel the lease, either it is agricultural lease or fishery lease, but under different provision. In my considered opinion, on this ground, the order cannot said to be without jurisdiction. 7. So far as the entertaining of the writ petition is concerned, as the order impugned is revisable, in view of the Full Bench decision of this Court in the case of Ram Kumar and others v. State of U.P. and others, 2005 (99) RD 823, the petitioner is at liberty to file revision against the order impugned. In case such revision is filed within a period of three weeks from today, the same may be considered and decided without entertaining any objection to the limitation. 8. The petitioner is also at liberty to file an application for interim protection. In case the revision is filed within a period of three weeks from today with application for interim protection alongwith a certified copy of the order of this Court, the said application be also considered and decided in accordance with law after hearing all concerned. Till the petitioner’s application for interim protection is considered, status quo as on date be maintained. However, the Commissioner, thereafter, shall pass an independent order in accordance with law. It may be clarified that I have neither addressed myself on the merit of the order of the Collector nor the merit of the petitioner’s application for interim protection and the Commissioner is free to pass an independent order in accordance with law without being influenced by the interim order passed by this Court. With the aforesaid observation/direction, this writ petition is disposed of. —————