# Ravindra and Anr v. State of U.P. & Ors

- **Citation:** (2015) 2 ILRA 707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-02
- **Case number:** Writ-C No. 8762 of 2015
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravindra-and-anr-v-state-of-u-p-ors-43283
- **Pages:** 3

## Headnote

INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India, Art.-226-Fisheries
Rights-whether
inheritable?-held-'yes'-
petitioner's mother granted license of
fisheries rights-having validity upto 2018on death of original licensee-petitioner
being a legal heirs-claimed license in his
favor-District Magistrate rejected-saying -
such rights not inheritable-held-illegal.
Held: Para-6
This type of controversy has earlier came
up before this Court in the writ petition
no. 5536 of 2005 (Mohan Lal Vs. State of
U.P.and others) decided on 9.2.2005,
wherein this Court has held that the
fishery lease is inheritable. Not only in
that case, but in another Writ (C) No.
7322 of 2014 (Smt. Sonmati Vs. State of
U.P. and others), this Court has held that
fishery lease is inheritable. In view of
the law laid down by this Court in the
aforesaid cases, I am of the opinion that
the Collector has erred in rejecting the
petitioners' application holding that the
petitioners have no right to perform
fishery right on the strength of the
earlier lease executed in favour of their
mother. The question as to whether the
petitioners are the sons of the original
lessee or not, this is a question of fact
and that can be examined by the District
Magistrate but so far as their inheritable
right is concerned, that cannot be denied
in view of the law laid down by this
Court in the case of Mohan Lal and
Smt.Sonmati (supra).
Case Law discussed:
W.P. No. 5536 of 2005; Writ(C) No. 7322 of
2014

## Text

2 All] Ravindra and Anr. Vs. State of U.P. & Ors.
707
hearing canalises so that extravagant prolixity
or abuse of process can be avoided and a fair
workability provided. Amputation is not
procedure while pruning may be.
42. Of course, procedure is within
the Court's power but where it pares
down prejudicially the very right, carving
the kernal out, it violates the provision
creating the right. Appeal is a remedial
right and if the remedy is reduced to a
husk by procedural excess, the right
becomes a casualty. That cannot be.
45. An appeal is a re-hearing, and as
Viscount Cave laid down, it was the duty of a
court of appeal in an appeal from a judge
sitting alone to make up its own mind, not
disregarding the judgment appealed from
and giving special weight to that judgment
where the credibility of witnesses comes into
question, but with full liberty to draw its own
inferences from the facts proved or admitted,
and to decide accordingly."
31. Having considered the above, we
therefore find ourselves in full agreement
with the judgment of the learned Single
Judge in the case of Kailash Sahkari Awas
Samiti (supra) which lays down the law
correctly and an appeal against an order
refusing to release attachment under Section
17 of the 1986 Act would be maintainable
under Section 18 of the same Act.
32.
After having held that, we partly
allow this petition with a direction to the
District Magistrate to proceed to refer the
matter to the court concerned and to that
extent the impugned order dated 18.12.2014
stands modified. The District Magistrate
ought to have reflected on the provisions of
Sections 15 and 16 of the 1986 Act carefully
but such errors may keep on recurring as
Rules do not appear to have been framed
inspite of the query raised by this Court in
Akbar's case (supra). Once the reference is
made to the court concerned, as indicated
above, then the matter shall be disposed off by
the court in accordance with the provisions
quoted hereinabove and the law indicated in
this regard. The aforesaid process be
completed expeditiously and the District
Magistrate
shall pass appropriate orders
preferably within four weeks' from the date of
production of a certified copy of this order
before him. Once the matter reaches the court,
the court shall endeavour to dispose of the
same under the provisions of the 1986 Act
read with Criminal Procedure Code preferably
within three months thereafter.
33. A copy of this judgment may also
be placed on the record of Government
Appeal No.6042 of 2010 for information and
the Reporting Section of the High Court shall
also take notice of this judgment to proceed
for reporting such appeals filed under Section
18 of the 1986 Act. The learned Government
Advocate may apprise the State Government
as well the learned Advocate General of this
judgment so as to expedite considering
framing of appropriate Rules as observed
hereinabove.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.04.2015
BEFORE
THE HON'BLE RAN VIJAI SINGH, J.
Writ-C No. 8762 of 2015
Ravindra and Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Sri Kundan Rai
Counsel for the Respondents:
C.S.C., Sri D.D. Chauhan, Sri Prabhakar
Dubey
708
 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution of India, Art.-226-Fisheries
Rights-whether
inheritable?-held-'yes'-
petitioner's mother granted license of
fisheries rights-having validity upto 2018on death of original licensee-petitioner
being a legal heirs-claimed license in his
favor-District Magistrate rejected-saying -
such rights not inheritable-held-illegal.
Held: Para-6
This type of controversy has earlier came
up before this Court in the writ petition
no. 5536 of 2005 (Mohan Lal Vs. State of
U.P.and others) decided on 9.2.2005,
wherein this Court has held that the
fishery lease is inheritable. Not only in
that case, but in another Writ (C) No.
7322 of 2014 (Smt. Sonmati Vs. State of
U.P. and others), this Court has held that
fishery lease is inheritable. In view of
the law laid down by this Court in the
aforesaid cases, I am of the opinion that
the Collector has erred in rejecting the
petitioners' application holding that the
petitioners have no right to perform
fishery right on the strength of the
earlier lease executed in favour of their
mother. The question as to whether the
petitioners are the sons of the original
lessee or not, this is a question of fact
and that can be examined by the District
Magistrate but so far as their inheritable
right is concerned, that cannot be denied
in view of the law laid down by this
Court in the case of Mohan Lal and
Smt.Sonmati (supra).
Case Law discussed:
W.P. No. 5536 of 2005; Writ(C) No. 7322 of
2014
(Delivered by Hon'ble Ran Vijai Singh, J.)
1. Learned counsel for the petitioner
is permitted to correct the description of
respondent no. 3 and serve copy of the
writ petition to Sri D.D.Chauhan, learned
counsel for the Gaon Sabha.
2. Heard Sri Kundan Rai, learned
counsel for the petitioners, learned
Standing
Counsel
for
the
State
respondents, Sri D.D.Chauhan, learned
counsel for the Gaon Sabha and Sri
Prabhakar Dubey, learned counsel for the
respondent no. 4.
3. By means of this writ petition, the
petitioners have prayed for issuing a writ of
certiorari quashing the order dated 21.1.2015
passed by the Collector/Zila Aadhikari, Sant
Kabir Nagar in Misc. Case No. 8 (Ravindra
and others Vs. Shoba Devi and others) by
which the petitioners' application, for
permitting them to perform their fishery right
over pond situated over Plot No. 290-Ka
(measuring about 0.376 hectare) situated in
Village
Dharmsinghva
Tappa
Patana
Pargana Bansi Purab Tehsil Mehadawal
District Sant Kabir Nagar, has been rejected.
4.
While assailing this order, learned
counsel for the petitioners submits that
fishery lease is inheritable and the Collector
concerned has erred in rejecting the
petitioners' application on the ground that
after the death of the petitioners' mother in
whose favour lease was executed, the period
of lease has come to an end and the petitioner
cannot be permitted to inherit the same.
5. The facts giving rise to this case
are that a lease was executed in favour of
the petitioners' mother Smt. Chandrawati
Devi for performance of fishery right over
the pond mentioned hereinabove. The
lease was executed for the period of ten
years and was operative till 31.12.2018.
Later on, the petitioners' mother has died
and after the death of the mother, the
respondents have started hindrance in
performance of fishery right by the
petitioners.
In
that
eventuality,
the
petitioners have approached this Court
through Writ Petition No. 64996 of 2014.
The aforesaid writ petition was disposed
2 All] Sagar Malik Vs. State of U.P. & Ors.
709
of on 2.12.2014 with the liberty to the
petitioner
to
make
a
representation/application
before
the
Collector/District Magistrate Sant Kabir
Nagar.
Pursuant
thereto,
the
representation was filed. The Collector
has rejected the petitioners' application on
the ground that after the death of the
original lessee, the period of lease has
come to an end and stand cancelled and
the heirs and legal representatives cannot
inherit the same.
6. This type of controversy has earlier
came up before this Court in the writ
petition no. 5536 of 2005 (Mohan Lal Vs.
State of U.P.and others) decided on
9.2.2005, wherein this Court has held that
the fishery lease is inheritable. Not only in
that case, but in another Writ (C) No. 7322
of 2014 (Smt. Sonmati Vs. State of U.P. and
others), this Court has held that fishery lease
is inheritable. In view of the law laid down
by this Court in the aforesaid cases, I am of
the opinion that the Collector has erred in
rejecting the petitioners' application holding
that the petitioners have no right to perform
fishery right on the strength of the earlier
lease executed in favour of their mother.
The question as to whether the petitioners
are the sons of the original lessee or not, this
is a question of fact and that can be
examined by the District Magistrate but so
far as their inheritable right is concerned,
that cannot be denied in view of the law laid
down by this Court in the case of Mohan
Lal and Smt.Sonmati (supra).
7. In view of foregoing discussions,
the writ petition succeeds and is allowed.
The impugned order dated 21.1.2015
passed by the Collector/Zila Aadhikari,
Sant Kabir Nagar in Misc. Case No. 8
(Ravindra and others Vs. Shoba Devi and
others) is hereby quashed with the
direction to pass a fresh order in this regard
in accordance with law looking into the order
passed in this petition and earlier decisions of
this Court
as
mentioned hereinabove
expeditiously but not later than two months
from the date of filing of certified copy of the
order of this Court.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2015
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE MRS. VIJAY LAKSHMI, J.
Criminal Misc. Writ Petition No. 10050 of 2015
Sagar Malik
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Ms. Zia Naz Zaidi, Sri Rajul Bhargava
Counsel for the Respondents:
A.G.A.
Constitution of India, Art.-226-Petitioner a
gang
leader-continue
in
jail-state
government exercising power u/s 268 in
terms of Section 417 (I) Cr.P.C.-issued
direction
transferring
petitioner
from
Muzaffar Nagar to district jail Varanasibefore passing impugned transfer orderfollowing principle of natural justice-only
reason disclosed that his uncle and other
family members are confined in same jail at
Muzaffar Nagar-can not be basis-order
impugned not suffer from any infirmity
requires no interference-rather petitioner at
Varanasi having video conferencing systemhaving full choice of engagement of
lawyers-no prejudice going to causedpetition dismissed.
Held: Para-18
In our opinion, the Magistrate has only
given
a
permission
for
transfer
to
another Jail and the reasons given are