Hon'ble Ritu Raj Awasthi, J.
Heard the counsel for the petitioner Sri R.C. Singh and Sri K.K. Pal, appearing for Zila Panchayat, Sultanpur.
The petitioner, a cooperative society, registered under the provisions of the U.P. Cooperative Societies Act, 1965, was granted Theka for running public ferries at Katsari, Diara, Benipur and Sabsukhpur Ghats on Gomti River in district Sultanpur for the year 2008-09 (01.10.2008 to 30.09.2009) by the Zila Panchayat, Sultanpur. Unfortunately on 8.10.2008 an incident occurred at Subsukhpur Ghat with respect to a boat tragedy in which some people died. An FIR was lodged against the Secretary of the petitioner society Shri Achhey Lal Nishad and one other person said to be operating the ferry, which was registered as Case Crime No. 456.08 under section 304-A, IPC on 9.10.2008.
A show cause notice dated 10.10.2008 was issued to Shri Achhey Lal Nishad, Secretary of the society requiring him to explain as to why the lease granted in favour of the society may not be cancelled and the name of the society be placed in the black list. After issuance of the said notice, the order, black listing the society was passed on 13.10.2008 and the orders were also issued for holding fresh auction of the Ghats in question.
The petitioner challenged the order dated 13.10.2008 which was communicated to it on 1/4.11.2008 mainly asserting that no opportunity was afforded to the petitioner before passing the order dated 13.10.2008.
This Court considered the aforesaid plea and passed an interim order saying that if any auction is held that shall not be finalized in pursuance of the impugned orders till next date of listing.
It was noticed by the Court and it is a fact which is not disputed by the respondents, even today, that show cause notice was though dated 10.10.2008, but the same was dispatched from the office of Zila Panchayat on 16.10.2008, which was received by the petitioner on 18.10.2008 and the petitioner submitted his reply on 20.10.2008 but in the meantime on 13.10.2008 itself an order was passed by the Chairman, Zila Panchayat cancelling the Theka and putting the petitioner's society in the black list. Communication of the said order dated 13.10.2008 has been made vide order dated 1/4.11.2008 by the Upper Mukhya Adhikari, Zila Panchayat, Sultanpur and by letter dated 11.11.2008 a fresh auction was scheduled to be held on 25.11.2008.
It, thus, not being in dispute that before cancelling the Theka and putting the petitioner's society in the black list, no opportunity was afforded to the petitioner as show cause notice dated 10.10.2008 was served upon the petitioner only on 18.10.2008 whereas the order putting the petitioner's society in black list was passed on 13.10.2008.
That being so, the order of black listing has been passed without having the version of the petitioner society on record and without considering the plea that might have been raised or could be raised by the petitioner, as such, the order of black listing cannot be sustained.
We are informed by Sri K.K. Pal, learned counsel appearing for Zila Panchayat that a fresh auction has taken place for the year 2009-10 on 8.9.2009 which became the subject matter of challenge in Writ Petition No. 8739 (MB) of 2009 in re: Nishad Sewa Kalyan Samiti vs State of U.P. and others, and the said writ petition has been dismissed. However, in view of interim order granted by this Court that the auction shall not be finalized, the said auction has yet not been finalized.
Learned counsel for the respondents has rightly contended that the Theka was granted to the petitioner for the year 2008-09, which period had already lapsed and therefore, the petitioner cannot be have any grievance, against the auction held for the year 2009-2010.
We, do not find any ground for restraining the respondents from continuing with fresh auction and finalising of the same in accordance with law for the subsequent period i.e. 2009-10. We may further clarify that any interim order granted in favour of the petitioner, would not effect the subsequent grant of Theka by the Zila Panchayat. However, the order of black listing having been passed without affording any opportunity to the petitioner cannot be sustained.
We, therefore, set aside the order dated 13.10.2008 in so far it black list the petitioner society and also the order dated 1/4.11.2008 to that extent. We, however, leave it open to the Zila Panchayat to pass a fresh order in the matter of black listing after affording opportunity to the petitioner and for that matter, reply which has already been submitted by the petitioner and has been received in the office of the Zila Panchayat on 20.10.2008, may be considered as reply to the show cause notice dated 10.10.2008 and a fresh decision be taken after hearing the petitioner. In case the petitioner so wishes, it can file an additional reply within a period of one week from the date of receipt of the certified copy of this order and if such reply is submitted, the same shall also be considered by the Zila Panchayat.
At this juncture, the learned counsel for the petitioner submitted that the petitioner society has worked only for one month though it had deposited the amount for the entire year and therefore, the amount aforesaid be directed to be refunded to the petitioner.
We cannot grant any such relief to the petitioner in the instant writ petition. It is for the petitioner to make appropriate application to the Zila Panchayat who may consider the same in accordance with law.
Subject to aforesaid directions, the writ petition is allowed.
Dated: 04.01.2010.
Vks.