Tarun Agarwala - (1.) -Heard Sri Uttam Kumar Goswami, the learned counsel for the petitioner and Sri J. K. Khanna, the learned standing counsel appearing for the respondents No. 1, 2 and 3 and Sri Amit Saxena, the learned counsel appearing for the respondent No. 4. The Court has also perused the original records produced by the standing counsel.
(2.) THE present dispute relates to the renewal of the fishery right of a pond granted in favour of the plaintiff/respondent No. 4. THE facts as culled out from the record produced by the State Authorities is, that the plaintiff-respondent No. 4 was granted a patta for fishery rights in the pond in question for a period of 10 years on 23.6.1996. A formal agreement dated 4.4.1997 was executed. It transpires that the plaintiff applied for the renewal of the fishery rights on 27.3.2006. A report was submitted by the revenue authority on the same date and, the Sub-Divisional Magistrate renewed the lease on the same date, i.e., on 27.3.2006. When correct facts and law was brought to the knowledge of the authority concerned, the matter was enquired into and the Sub-Divisional Magistrate found that the renewal of the lease could not be granted and that under the judgment of the High Court, the fishery rights were again required to be given through the procedure evolved under the Acts, Rules and Regulations. THE Sub-Divisional Magistrate also found that the renewal was obtained fraudulently by concealment of material facts and, accordingly passed an order dated 12.9.2006, cancelling the order of the renewal of the fishery right in favour of the plaintiff. Without disclosing the cancellation of the patta, the plaintiff filed a Suit No. 958 of 2006 on 22.9.2006 before the Civil Court, Aligarh alleging that the patta was renewed by the revenue authority and that the defendants were unnecessarily interfering in his fishing right, and, therefore, prayed for the grant of a temporary injunction restraining the defendants from interfering in the fishing rights granted to the plaintiff/respondent No. 4. The trial court passed an ex parte order dated 7.11.2006 granting a temporary injunction. The defendant, who is the Pradhan on behalf of the Gaon Sabha filed a Misc. Appeal under Order XLIII, Rule 1 (r) of the C.P.C. contending that the patta granted in favour of the plaintiff had been cancelled and, consequently no injunction could be granted. The said appeal was dismissed by the lower appellate court by an order dated 8.2.2007. The petitioner, being aggrieved, has filed the present writ petition. More than one and half years have elapsed and the respondent No. 4 having put in appearance did not file any counter-affidavit. This Court, after considering the matter directed the standing counsel to produce the original record which the Court has perused. The Court has also heard the learned counsel for the plaintiff/respondent No. 4.
(3.) THE learned counsel for the petitioner submitted that a suit against the grant or cancellation of a fishery right, was not maintainable nor could the trial court grant an injunction which was specifically prohibited under the Specific Relief Act. THE learned counsel submitted that the patta had been cancelled and consequently, no injunction could have been granted by the trial court. On the other hand, the learned counsel for the plaintiff/respondent No. 4 submitted that the writ petition was not maintainable at the instance of the petitioner, as there was no resolution in his favour of authority, by which a petition could be filed engaging a private counsel. The learned counsel further submitted that the suit was maintainable and that against the cancellation of the patta, the plaintiffs have preferred a revision before the Commissioner, in which, an interim order of status quo was passed by the appellate authority which is continuing and by virtue of the said interim order, the plaintiff was entitled to continue with his fishery right pursuant to the renewal of the patta. The learned counsel submitted that since the defendants were interfering in his fishery right, the suit for injunction was filed which was maintainable and the trial court was justified in entertaining the suit and had rightly granted a temporary injunction. The learned standing counsel on behalf of revenue authorities submitted that pursuant to the Full Bench decision of the Court, the renewal of the patta could not have been granted and that the patta has to be granted after due advertisement in accordance with the provisions of the Revenue Manual. The standing counsel submitted that the trial court committed an error in grant of an injunction.;