Ram Bachan Prasad vs Dy.Collector,Sadar,Ghazipur and Others

Sri N.K. Jafri appears as brief holder of the learned counsel for the petitioner. Learned Standing Counsel appears for the respondents 1 to 4.

The facts leading to this writ petition are that a lease of fisheries right was granted in favour of the petitioner in pursuant to an auction held on 1011997 which was approved by the SubDivisional Officer on the same day and lease deed was executed on the same day. Thereafter the said lease was cancelled by the SubDivisional Magistrate by his order dated 2911997 Annexure4 to the writ petition. The ground stated in it was that serious irregularities have been done in the auction. Irregularities were not disclosed therein but it was said that fraud had been played in obtaining the lease. Then Theka had been again auctioned and given to respondent No. 5. The basic grievance of the petitioner is that the fraud has not been disclosed in the order and further no opportunity of hearing has been afforded to the petitioner before cancelling the auction. Learned Standing Counsel was given opportunity to file counter affidavit but no counteraffidavit has been filed till today. It is not the argument of the learned Standing Counsel that the petitioner was given opportunity of hearing before cancelling the auction and the lease deed executed in favour of the petitioner. Therefore, the impugned order dated 2911997 Annexure4 to the writ petition cannot be sustained and once it goes, the subsequent auction dated 2221997 that was approved on 2521997 also cannot stand. Learned Standing Counsel has claimed that there was an alternative remedy open but here when the violation of principle of natural justice is so very apparent there is no need for relegating the petitioner to the alternative remedy as pointed by the learned Standing Counsel. Consequently, the petition is allowed and the impugned order dated 2911997, Annexure4 to the writ petition and the impugned order dated 25 21997, Annexure6 to the writ petition are quashed. The respondents 1 to 4 shall, however, be free to pass a fresh order according to law after due opportunity to the petitioner to show cause against proposed cancellation of Theka and lease in his favour on account of fraud. There shall be no order as to cost.

A copy of this order be delivered to the learned standing counsel Sri R.K.. Awasthi within three days from today for communication to the SubDivisional Magistrate concerned for ensuring compliance of this order. Petition allowed.