- (1.) 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. 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.
(2.) 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:
(3.) 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.;