Shivendra Das Vaishnav vs State of Chhattisgarh and Another

S.K. Agnihotri, J.—By this petition, the petitioner seeks for the following reliefs:

10.1) That the impugned auction notices dated 19.03.2010 and 29.03.2010 issued by the respondent No.2 be set aside/quashed.

10.2) That the respondent No.2 be directed execute the registry of the shop No. 1-4 in favour of the petitioner and not to deprive him from carrying on the business.

10.3) That the respondent No.2 be directed to not to auction the shops in question as per the impugned notice dated 19.03.2010. & 29.03.2010 and not to dispossess the petitioner from his shop.

10.4) Any other relief may also be granted to the petitioner which the Hon''ble Court may deem fit and proper in the facts and circumstances of the case.

Learned counsel appearing for the petitioner submits that the petitioner has deposited a sum of Rs. 10,000/- as against the premium of shop, fixed at Rs. 52,200/- on 27.10.2004. Thereafter, on 08/10.11.2004, the petitioner was served with a notice to deposit the remaining amount of premium and to execute a registered sale deed. The petitioner did not hear anything thereafter till the impugned notice dated 19.03.2010 was issued by the respondent No.2 for auction of 7 shops in B-Market, Gandai Block B-1, Rajnandgaon and thereafter, revised notice was also published in the newspaper on 29.03.2010. Thus, this petition seeking quashing of the aforestated auction notices with a further direction to execute the registry of the shop No.14 in favour of the petitioner, and not to deprive him from carrying on his business.

On query, learned counsel appearing for the petitioner submits that there was no occasion to seek for a direction to consider the case of the petitioner for allotment of shop, as the petitioner kept waiting since October, 2004 for execution of the registry.

On the other hand, Shri Bhaduri, learned counsel appearing for the respondent No.2 submits that after deposit of a sum of Rs. 10,000/-, the petitioner has not deposited any amount pursuant to the notice dated 08/ 10.11.2004 (Annexure P/4). Secondly, the petitioner was an encroacher and he has not established any temporary structure, whatsoever, with the permission of Gram Panchayat or Nagar Panchayat or by any other authority. The petitioner has not produced any document indicating asto whether he was in possession of any shop/structure and he was carrying on his business with the consent or permission of any authority.

Having regard to the above stated facts and submission made hereinabove, I am of the considered view that the petitioner is not entitled to any relief. Firstly, the petitioner has concealed the fact that the petitioner, on its own has not complied with the requirement of the notice dated 08/ 10.11.2004 (Annexure P/4) whereby he was directed to deposit the balance amount of premium. The petitioner has also not submitted any document showing that he had paid any taxes or dues to the Nagar Panchayat or any other authority, at the time he was allegedly carrying on his business. Secondly, the petitioner has challenged the issue of auction notice only, but has not asked for any direction to consider his case for allotment of shop, on one or other ground, whether it was on the basis of certain permission or consent granted by the authorities or otherwise as according to the petitioner, he has been carrying on the business since 1974. The petitioner has further not placed any order or letter whereby the petitioner was directed to deposit the premium of Rs.52,200/- for allotment of shop at the place, wherein allegedly the petitioner was running his business, except the subsequent notice dated 08/10.11.2004.

It is well settled that if the pleadings and prayer are not proper, its not expected that the respondents shall respond to it and in that event, there is no other alternative except to dismiss the petitioner for want of material facts.

The Supreme Court, in Rani Laxmibai Kshetriya Vs. Chand Behari Kapoor and Others, , observed as under:

8...It is too well settled that the petitioner who approaches the court invoking the extraordinary jurisdiction of the court under Article 226 must fully aver and establish his rights flowing from the bundle of facts thereby requiring the respondent to indicate its stand either by denial or by positive assertions. But in the absence of any averments in the writ petition or ever in the rejoinder-affidavit, it is not permissible for a court to arrive at a conclusion on a factual position merely on the basis of submissions made in the course of hearing.

In V.K. Majotra Vs. Union of India (UOI) and Another, , the Supreme Court observed as under:

8...The writ courts would be well advised to decide the petitions on the points raised in the petition and if in a rare case keeping in view the facts and circumstances of the case any additional points are to be raised then the concerned and affected parties should be put to notice on the additional pointes to satisfy the principal of natural justice. Parties cannot be taken by surprise. We leave the discussion here.

In B.S.N. Joshi and Sons Ltd. Vs. Nair Coal Services Ltd. and Others, , it was observed as under:

Before we embark upon the respective contentions made before us on the said issue we may notice that although the point was urged during hearing before the High Court, the first respondent in its writ application did not raise any plea in that behalf. The High Court was not correct in allowing the first respondent to raise the said contention. (See Chimajirao Kanhojirao Shirke v. Oriental Fire & General Insurance Co Ltd., SCC at p.625.)

Further, in Raj Kumar Soni & Another v. State of U.P. (2007) 10 SCC 634,m the Supreme Court held as under:

11...It is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and must make a full and complete disclosure of facts to the Court. Patties are not entitled to choose their own facts to put forward before the Court. The foundational facts are required to be pleaded enabling the Court to scrutinize the nature and content of the right alleged to have been violated by the authority.

In the case on hand, the petitioner has not submitted all the facts of case and has chosen to place the facts of his own choice before this Court, in order to seek relief of quashing of the auction notice when the petitioner was not entitled to be considered in view of the fact that the petitioner has himself failed to deposit the entire premium amount for allotment of the shop.

For the discussion and reasons as aforestated, the writ petition is dismissed.