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2013 DIGILAW 868 (ALL)

HARIOM v. STATE OF U. P.

2013-03-18

RAN VIJAI SINGH

body2013
JUDGMENT Hon’ble Ran Vijai Singh, J.—Heard Sri K.K.Singh, learned counsel for the petitioner, learned standing counsel for the State respondents, Sri Shailendra Singh, learned counsel appearing for respondent Nos. 5 to 7 and Sri Vijai Bhan Singh, holding brief of Sri M.N.Singh, learned counsel appearing for the Gaon Sabha. 2. Through this writ petition the petitioner has prayed for issuing a writ order or direction in the nature of certiorari quashing the order dated 11.2.20131 passed by the Additional Commissioner (Administration), Moradabad Division, Moradabad, respondent No. 2 in Revision No. 05/12-13 (Shishu Pal Singh and others v. Hari Om and others) by which the revision filed by the respondent Nos. 5 to 7 have been allowed and the petitioner’s fishery lease dated 26.9.2012 has been cancelled with the direction to initiate proceedings for grant of fresh lease. 3. Sri K.K.Singh, learned counsel for the petitioner while assailing the order impugned submitted that the order is without jurisdiction as against the order granting the fishery lease or lease a revision would not be maintainable. In his submission as the lease was granted under the provisions of the Government Order dated 17.10.1995 the appropriate remedy for the respondent was to seek its cancellation by way of filing an application before the Collector concerned but instead of doing so he availed the remedy of revision. He has drawn attention of the Court to a Full Bench decision of this Court in the case of Ram Kumar v. State of Uttar Pradesh, ILR (All) 2006-0-371, wherein its has been observed that against an order granting lease or lease appropriate remedy is to file an application for cancellation of lease before the Collector. 4. Sri Shailendra Singh, learned counsel appearing for respondent Nos. 5 to 7 submitted that since initial allotment was bad, therefore the power has been exercised under Section 333 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 and no infirmity can be attached with this order. 5. For appreciating the controversy in hand as to whether the revision shall be maintainable against an order granting lease or lease it would convenient to peruse the language used in Section 333 of the U.P. Zaindari Abilition and Land Reforms Act, 1950 (in short the Act), which is reproduced herein below: “333. 5. For appreciating the controversy in hand as to whether the revision shall be maintainable against an order granting lease or lease it would convenient to peruse the language used in Section 333 of the U.P. Zaindari Abilition and Land Reforms Act, 1950 (in short the Act), which is reproduced herein below: “333. Power to call for cases.—(1) The Board or the Commissioner or the Additional Commissioner may call for the record of any suit or proceeding [other than proceeding under sub-section (4-A) of Section 198) decided by any Court subordinate to him in which appeal lies or where in appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of any order passed in such suit or proceeding and if such subordinate Court appears to have; (a) exercised a jurisdiction not vested in it by law; or (b) failed to exercise a jurisdiction so vested; or (c) acted in the exercise of jurisdiction illegally or with material irregularity; the Board or the Commissioner or the Additional Commissioner, as the case may be, may pass such order in the case as he thinks fit. (2) If an application under this section has been moved by any person either to the Board or to the Commissioner or to the Additional Commissioner, no further application by the same person shall be entertained by any other of them.” 6. On the bare reading of Section 333 of the Act it will transpire that the power under this section can be exercised by the Board (Board of Revenue, U.P.) or the Commissioner or the Additional Commissioner by calling the record of any suit or proceeding decided by any Court subordinate to him against which no appeal lies or appeal lies but has not been availed with a view to satisfy himself as to the legality or propriety of any order passed in suit or proceeding and if such subordinate Court has exercised a jurisdiction not vested in it by law or failed to exercise the jurisdiction so vested or acted in the exercise of jurisdiction illegally or with material irregularity. 7. The question would be as to whether the Sub Divisional Officer while approving or disapproving the proposal to grant lease acts as a Court or as an administrative authority. 7. The question would be as to whether the Sub Divisional Officer while approving or disapproving the proposal to grant lease acts as a Court or as an administrative authority. What is Court has not been defined in the U.P. Zamindari Abolition and Land Reforms Act, 1950. However, under the constitutional scheme and doctrine of separation of powers, there are three main limbs, legislature, executive and judiciary. The judiciary is distinct from the executive and legislature. The judicial function involves decision of rights and liabilities of the parties. Enquiry and investigation into the facts, as a matter of fact, are the material part of the judicial function. The Court renders decision on an application, suit, revision, appeal, writ etc. in accordance with the provisions contained under which the application, suit, revision, appeal, writ etc. are filed. There is a complete mechanism and procedure of the functioning of the Court and rendering a decision in a case which requires version of the applicant, version of the other side, evidence on the pleadings of the rival parties, which may be oral or documentary, legal submissions etc. The Apex Court in the case of State of Gujarat v. Gujarat Revenue Tribunal Bar Association, 2012 (10) SCC 353 , has held that an authority discharging statutory function may be described as a quasi-judicial authority when it possesses certain attributes or trappings of a Court, but not all. In case certain powers under C.P.C. or Cr.P.C. have been conferred upon an authority, but it has not been entrusted with the judicial powers of the State, it cannot be held to be a Court. In case certain powers under C.P.C. or Cr.P.C. have been conferred upon an authority, but it has not been entrusted with the judicial powers of the State, it cannot be held to be a Court. Reference may be given in Bharat Bank Ltd., Delhi v. The Employees of Bharat Bank and another, AIR 1950 SC 188 ; Virindar Kumar Satyawadi v. The State of Punjab, AIR 1956 SC 153 ; Engineering Mazdoor Sabha and another v. Hind Cycles Ltd., AIR 1963 SC 874 ; Associated Cement Companies Ltd. v. P.N. Sharma and another, AIR 1965 SC 1595 ; Ramrao and another v. Narayan and another, AIR 1969 SC 724 ; State of Himachal Pradesh and others v. Raja Mahendra Pal and another, AIR 1999 SC 1786 ; Keshab Narayan Banerjee v. State of Bihar and others, AIR 2000 SC 485 ; Indian National Congress (I) v. Institute of Social Welfare and others, AIR 2002 SC 2158 ; K. Shamrao and others v. Assistant Charity Commissioner, (2003) 3 SCC 563 ; Trans Mediterranean Airways v. Universal Exports, (2011) 10 SCC 316 at page 338; Namit Sharma v. Union of India, JT 2012 (9) SC 166). 8. Here in this case under the Government Order dated 17.10.1995 procedure has been prescribed for grant of fishery lease and there the power has been conferred upon the Sub Divisional Officer either to approve or disapprove the proposal to grant lease. It is purely an administrative work entrusted upon the Sub Divisional Officer and it does not require the parties to plead their cases or produce any evidence or it requires any hearing before approving or disapproving the proposal. Therefore, I am of the considered opinion that while discharging the function either to approve or disapprove the proposal to grant lease the Sub Divisional Officer does not act as a Court. 9. Under Section 333 of the Act the power has been conferred upon the U.P. Board of Revenue, Commisisoner, Additional Commisioner to call for the record of any suit or proceeding decided by any Court subordinate to him. Here in this case as I have held that while exercising power to approve or disapprove the proposal to grant lease the Sub Divisional Officer does not act like a Court, Therefore, the revision cannot be directly filed against the approval or disapproval to grant lease or even execution of the lease. 10. Here in this case as I have held that while exercising power to approve or disapprove the proposal to grant lease the Sub Divisional Officer does not act like a Court, Therefore, the revision cannot be directly filed against the approval or disapproval to grant lease or even execution of the lease. 10. In Ram Kumar (supra) a Full Bench of this Court has held that an order of the Sub Divisional Officer approving or refusing the proposal to grant lease/execution of lease under the relevant Government Order although open to judicial review under Article 226 but it is neither appealable nor revisable under the provisions of the Act. The remedy available to the petitioner would be to file an application for cancellation of lease before the Collector as in the case of grant of lease for agricultural purpose with respect to the land under Sections 195 and 197 of the Act which power is conferred under sub-section (4) of Section 198 of the Act. 11. In view of the foregoing discussions, I am of the considered opinion that the order impugned dated 11.12.2011 passed by the Additional Commissioner (Administration), Moradabad, respondent No. 2 in Revision No. 05/12-13 (Shishu Pal Singh and others v. Hari Om and others) is without jurisdiction. It is also well-settled that an order without jurisdiction is a nullity and no legal consequences can flow such orders reference. Reference may be made to the decisons of the Apex Court in Managing Director, Army Welfare Housing Organization v. Sumangal Services Pvt. Ltd., (2004)9 SCC 619 , Sarup Singh and another v. Union of India and another, (2011) 11 SCC 198 and a Division Bench decision of this Court in the case of Committee of Management Shri Jawahar Inter College and another v. State of U.P. and others, in Special Appeal No. 164 of 2012 decided on 25.1.2012 in which it has been held that the order without jurisdiction is a nullity. 12. In view of the foregoing discussions the impugned order dated 11.12.2012 passed by the Additional Commissioner (Administration) Moradabad Division, Moradabad cannot be sustained and it is, hereby, quashed. The writ petition succeeds and is allowed. However, allowing the writ petition and setting aside the order passed by the Additional Commissioner will not preclude the respondents to avail the remedy to file an application for cancellation of lease in accordance with law. The writ petition succeeds and is allowed. However, allowing the writ petition and setting aside the order passed by the Additional Commissioner will not preclude the respondents to avail the remedy to file an application for cancellation of lease in accordance with law. In case such an application is filed that be considered and decided in accordance with law on its own merit expeditiously. Petition Allowed. ——————