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2013 DIGILAW 1576 (ALL)

SARVJEET v. STATE OF U. P.

2013-05-28

RAN VIJAI SINGH

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JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri Nanhe Lal Tiwari alongwith Sri Vijay Kumar Dubey, learned counsel for the petitioner, learned Standing Counsel, Sri Prem Prakash Tiwari, learned counsel for the respondent No. 5 and learned counsel for the Gaon Sabha. The petitioner appears to be aggrieved by order dated 28.2.2012 passed by Sub-Divisional Officer (in short S.D.O.) on an application filed by the respondent No. 5 for maintaining status quo during the pendency of the application cancelling fishery lease. 2. The submission of learned counsel for the petitioner is that impugned order has been passed without affording an opportunity of hearing to the petitioner and the order passed by S.D.O. is without jurisdiction, therefore the same deserves to be quashed. 3. The facts giving rise to this case are that with respect to the settlement of lease of pond No. 127 measuring about 1.372 hectare situated in Village Muthahi Khurd, Tehsil Dhanghata District Sant Kabir Nagar, auction was held in which the petitioner has offered Rs. 13270/- per annum. The bid was accepted vide order of the S.D.O. dated 20.3.2010 and thereafter lease was also executed on 23.12.2010 for the period of ten years. Thereafter it appears the respondent No. 5 filed an application on 15.10.2011 for cancelling the lease on the ground that the same was settled without there being any valid resolution of the Gaon Sabha. This application was filed before the S.D.O. and he took cognizance of the matter and issued notice to the parties. The parties have put in their appearance. It appears thereafter on 25.2.2012 the respondent No. 5 has filed an application for passing an order restraining the petitioner from performing the fishery right. On that application, the S.D.O. has passed the following order : lquk mHk;i{k ekSds ij ;FkkfLFkfr dk;e j[ksa A miftykf/kdkjh] /ku?kVk] lar dchj uxj A 28-02-2012 4. The aforesaid order has been challenged through this writ petition. On 7.5.2013, this Court has passed the following order : Heard Sri Vijay Kumar Dubey, learned counsel for the petitioner, learned Standing Counsel and Sri Anuj Kumar, learned counsel for the Gaon Sabha. The aforesaid order has been challenged through this writ petition. On 7.5.2013, this Court has passed the following order : Heard Sri Vijay Kumar Dubey, learned counsel for the petitioner, learned Standing Counsel and Sri Anuj Kumar, learned counsel for the Gaon Sabha. In substance, the petitioner appears to be aggrieved by direction of the Sub-Divisional Officer not to perform fishery right over Khasra No. 127 area 1.372 Village Muthahi Khurd, Tehsil Dhanghata District Sant Kabir Nagar pursuant to the lease executed in favour of the petitioner on 23.12.2010 for the period of ten years. In the submission of learned counsel for the petitioner, the lease is still subsisting, but on the application of the respondent No. 5, the Sub-Divisional Officer has passed an order for maintaining status quo. Learned counsel for the petitioner contends that the Sub-Divisional Officer has no jurisdiction to interfere in such matters, in case the petitioner’s lease has illegally been granted or there are something otherwise against the petitioner, the remedy is to seek cancellation of the lease before the Collector and the Sub-Divisional Officer has no jurisdiction to proceed with the matter. Learned Standing Counsel appearing for the State is directed to seek instructions from the concerned Sub-Divisional Officer verifying as to under which provision of law, he has passed the impugned order. Put up on 16th May, 2013 as fresh. On that date, the Sub-Divisional Officer, Tehsil Dhanghata, District Sant Kabir Nagar shall remain present alongwith complete records and file short counter affidavit explaining the situation. Pursuant to the above order, learned Standing Counsel has filed counter-affidavit. In the counter-affidavit it is stated that the order passed by the S.D.O. is not an ex parte order as the proceeding was already initiated on the application of the respondent No. 5 on 15.10.2011 and the order dated 25.2.2012 has been passed after hearing both the parties. 5. On being confronted as to whether the S.D.O. could entertain the application for cancellation of the lease, learned counsel for the respondents could not show any such provision from the perusal of the Government Order (in short G.O.) dated 17.10.1995, on which basis the fishery lease are settled. On the contrary, the G.O. contains that the power of cancellation of the lease is vested with the Collector. The S.D.O. has only power to accord the approval for grant of lease. On the contrary, the G.O. contains that the power of cancellation of the lease is vested with the Collector. The S.D.O. has only power to accord the approval for grant of lease. It has also been submitted that the partitioner has filed an application on 30.11.2011 before the Collector for transferring the proceeding before the competent Court. The District Magistrate has not passed any order on that application. 6. The sole question would be as to whether the proceeding initiated by the Deputy Collector on the application of the respondent for cancellation of the lease will fall in the ambit of his jurisdiction or it is beyond his jurisdiction. 7. The conferment of the power either to the Court or to the authority is given under the Statute or the Government Order. Here in this case, whatever power has been conferred upon the Collector or upon the Deputy Collector is conferred by the Government Order dated 17.10.1995. The Government Order dated 17.10.1995 confers the power upon the Deputy Collector only to the extent to approve or disapprove the proposal for grant of lease in favour of the particular person and after approval of the order under the Government Order, there is no such provision to make an application seeking recall of the order of the approval or make an application for cancellation of the lease which is executed only after approval of the Deputy Collector. 8. Here in this case, the approval was granted on 20.3.2010 and lease was executed on 23.12.2010. Under the Government Order, after execution of the lease, the power is vested with the Collector to cancel the lease if while settlement of the lease, some irregularities or illegalities have been committed either by the Committee which has held the auction or by the Deputy Collector who has approved the proposal to grant the lease. Learned Standing Counsel appearing for the State respondents has submitted that the authority which has power to pass the order has also power to recall the order. 9. The learned Standing Counsel may be right in his submissions but in absence of any specific power of review/recall of the order, the order can only be recalled in a case of fraud/misrepresentation/concealment of facts and in any other circumstance it cannot be recalled/cancelled unless the specific power is conferred upon the authority. 10. 9. The learned Standing Counsel may be right in his submissions but in absence of any specific power of review/recall of the order, the order can only be recalled in a case of fraud/misrepresentation/concealment of facts and in any other circumstance it cannot be recalled/cancelled unless the specific power is conferred upon the authority. 10. Here in this case, it is not the allegation that during the course of settlement of fishery lease any fraud has been played or it has been executed concealing material fact or it is an outcome of misrepresentation. Each and every papers relating to the auction proceedings were produced before the Deputy Collector and the Deputy Collector has passed the order after verifying the same and even it has not been verified he cannot be permitted later on to look into the matter afresh improve/recall his order because that will fall in the jurisdiction of the Collector. After passing of the approval order, in my opinion, the Deputy Collector become functus officio and in terms of the Government Order he cannot entertain any application for recall of the order unless there are some allegations of fraud or misrepresentation or concealment of fact or breach of conditions of the lease. 11. Here in this case, the S.D.O. has gone out of the way in entertaining the application dated 15.10.2011 filed by a stranger, who has no concern with the proceeding, on the allegation that he has heard that some irregularities have been committed during the course of settlement of lease and the Sub-Divisional Officer took cognizance of the matter and proceeded with the matter and fixed number of dates. I am surprised to note that the Sub-Divisional Officer who is class one officer is unaware of his power which is conferred upon him under the Government Order under which he is exercising the power. He must have dealt with number of cases relating to the settlement of fishery lease or agricultural lease. He is required to be more careful and vigilant in future while entertaining such proceedings, as continuance of the same, not only causes inconvenience to the public at large but it also waste the valuable time of the authority and it is also wastage of public exchequer. The conduct of the Sub-Divisional Officer in this case is worth deprecating. In view of foregoing discussions, the entire proceeding is held to be without jurisdiction. The conduct of the Sub-Divisional Officer in this case is worth deprecating. In view of foregoing discussions, the entire proceeding is held to be without jurisdiction. The writ petition succeeds and is allowed. The impugned order dated 28.2.2012 passed by Sub-Divisonal Officer, Dhanghata, District Sant Kabir Nagar is hereby quashed. The Sub-Divisional Officer is directed to transmit all the papers to the Collector and the Collector is directed to decide the matter afresh after due noitce to the parties. The respondents are restrained from interfering in performance of the fishery right of the petitioner provided other conditions of the lease are satisfied. —————