PRAMOD KAHAR Vs. STATE OF U P

JUDGEMENT

(1.) Through this writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the orders dated 22.12.2011, 26.12.2011 and 27.12.2011 passed by Sub-Divisional Magistrate, Sagri, Azamgarh and notice dated 27.3.2012 issued by Sub-Divisional Magistrate, Sagri, Azamgarh for fresh auction of the Pond Nos. 164/0.275 village Kubasath, 117/0.426 village Molanapur Prithvipal, 294/0.957 village Baasthan, 127/1.035 village Dhanawa Khas, 243/0.410 village Raghunathpur, 336/0.745 village Baasthan and 139/0.249 village Shitalpur of Tehsil Sagri, Azamgarh. Further, prayer has been made for issuing a writ of mandamus commanding the respondents not to interfere in the performance of fishery rights of the petitioners in the aforesaid ponds. It appears pursuant to the advertisement dated 21st July, 2011 published in Hindustan, the petitioners have participated in the proceeding for an allotment of fishery lease over the aforesaid ponds and offered their bid alongwith other persons. The petitioners' bid, being highest one, were accepted and the direction was issued to deposit 25% of the auctioned amount. Pursuant thereto, the petitioners have deposited one-fourth amount as required by the competent authority. It appears prior to the lease could be executed, the impugned order has been passed by the Sub-Divisional Officer cancelling the auction proceeding with the direction to issue fresh advertisement in a newspaper having wide circulation in the area. The aforesaid order has been passed taking note of the direction of this Court in Writ Petition No. 52872 of 2011, Ramesh Ram v. State of U. P. and others, decided on 13.9.2011.

(2.) Sri M. B. Singh holding brief of Sri Indrasen Singh Tomar, learned counsel for the petitioners submits that the impugned order has been passed under misconception, as in the Writ Petition No. 52872 of 2011 this Court has issued direction only to take fresh steps with respect to the allotment in which some complaints were made. In the submissions of learned counsel for the petitioners, in the petitioners' case no complaint was made and they, being a highest bidder, deposited one-fourth required amount, therefore, it was not open for the Sub-Divisional Officer to cancel the allotment proceedings. He has further submitted that entire proceeding of auction has been made in accordance with law, therefore, also the impugned order is unsustainable.

(3.) Refuting the submissions of learned counsel for the petitioners, Sri Rajesh Kumar learned standing counsel appearing for the State respondents as well as counsel for the Gaon Sabha has submitted that the writ petition on the instance of the present petitioners is not maintainable for the simple reason, as lease was not executed in favour of the petitioners. So far the submissions of learned counsel for the petitioners that there was no such direction in the Writ Petition No. 52872 of 2011 to pass an order in respect to the petitioners' case, it is also unsustainable, as even if there was no complaint against the petitioners' allotment, even then it was open for the Sub-Divisional Officer, the supervisory authority, to find out as to whether the advertisement was made in accordance with law or not. In response to the submissions of learned counsel for the petitioners that the impugned order was passed without affording an opportunity of hearing, the learned standing counsel contends that the opportunity was not required to be offered to the petitioners as prior to execution of lease the ball was in hand of the State authorities either to execute the lease or to refuse on valid reason. If the lease was executed in favour of the petitioners then in that eventuality the order of cancellation of lease could not have been passed by the authority concerned without notice to them. In the submissions of learned standing counsel, there is no illegality in the order impugned and the writ petition deserves to be dismissed.