.^1 11 ^ ^< z cv HIGH COURT OF CHHATTISGARH. BILASPUR Coram: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Radhe Shvam Sharma. JJ Writ Appeal No. 399 of 2010 Shivendra Das Vaishnav Vs. State of Chhattisgarh & another ORDER For consideration _i_ ! Sd/- Sunil Kumar Sinha, Judge Hon'ble Shri Justice Radhe Shvam Sharma ^ ^\.^^no-<_- ^' Sd/- R.S. Sharma Judge Post for Order:30/06/2011 Sd/- iSunil Kumar Sinha Judge ^.. --.^' HIGH COURT OF CHHATTISGARH. BILASPUR ^ Coram: ^ ^ APPELLANT PETITIONER Hon'ble Shri Sunil Kumar Sinha & Hon'bleShri Radhe Shvam Sharma, JJ. Writ Appeal No. 399 of 2010 Shivendra Das Vaishnav, S/o Shriramannat Das Vaishnav, aged about 55 years, R/o Ward No. 6, Gandai, District Rajnandgaon (C.G.) RESPONDENTS Vs, State of Chhattisgarh, Through: the Secretary, Panchayat Avam Gramin Vikas Vibhag, D.K.S. Bhawan, Raipur (C.G.) Nagar Panchayat, Gandai, Through: the Chief Executive Officer, Nagar Panchayat, Gandai, District Rajnandgaon (C.G.) WRIT APPEAL UNDER SECTION 2(1) OF THE CHHATTISGARH HIGH COURT (APPEAL TO DIVISION BENCHl ACT. 2006 Appearance: Mr. Anup Majumdar, Advocate for the appellant. Mr. Ajeet Singh, Panel Lawyerfor respondent No.1. Mr. Prashun Bhaduri, Advocate for respondent No.2. ORDER (30.06.2011) Following order of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the order dated 27th of October, 2010 passed by the learned Single Judge in W.P.(C) No. 1531/2010. By the impugnedorder, the writ petition filed by the appellanVpetitioner was dismissed. y^ Writ Appeal No. 399 of 2010 -^. (2) The facts, briefly stated, are as under:- The appellanVpetitioner and other similarly placed persons were operating small shops/gum^/'es and running their business on the land belonging to the then existing Gram Panchayat which now became Nagar Panchayat, Gandai. The case of the appellant is that he was continuing his shop in that place (B-1 Market) since the year 1974. He was permitted to establish his temporary shop after seeking due permission through an application from the then Gram Panchayat. A copy of the application dated 22.9.1975 is filed as Annexure-P/1. In the year 2003-04 a decision was taken by Nagar Panchayat to construct permanent shops in place of small shops to settle the appellant and othersimilarly placed persons having their gi/m^/es/shops at that place. The temporary structure of the appellant, at that time, was at the place where shop No.14 now is constructed. The temporary structure of the appellant was demolished with the assurance of allotting permanent shop at the same place i.e. shop No.14. Further case of the appellant is that Nagar Panchayat fixed the price of the shops and the appellant and other similarly placed persons were asked to deposit the premium towards their respective shops. As per directions of Nsrgar Panchayat, appellant and various other shop keepers deposited the amount of premium with Nagar Panchayat. The appellant deposited Rs.10,000/- vide receipt No. 27/93 on 27.10.2004 (Annexure-P/2). Thereafter a chart was prepared by Nagar Panchayat for further processing of allotment in favour of the appellant and other similarly placed persons. The copy of the chart is filed as Annexure-P/3. By a memo dated 8.11.2004, Nagar Panchayat directed the appellant to deposit the remaining amount and get appropriate deed register in his favour. This memo is Ex.- P/4. Thereafter the appellant made various efforts for registration of the shop in his favour, but no action was taken by Nagar Panchayat and ultimately auction notices dated 19.3.2010 & 29.3.2010 were published for auction of the shop of the appellant, which gave rise to the cause of action to the appellant to file the instant petition. ^^^ ":^^%^^ ^ ^ ^ Writ Appeal No. 399 of 2010 (3) Return has been filed by Nagar Panchayat. In the return they have contended that the appellant was an encroacher, therefore, he was not entitled for settlement of the shop on account of removal of his encrbachment. They further contended that the appellant has no right of rehabilitation as his status was that of an encroacher, therefore, the relief sought by him cannot be granted. About memo dated 8.11.2004 (Annexure-P/4), they contended that the above memo was issued by mistake from the office of Nagar Panchayat and the said mistake was corrected by subsequent memo dated 11.11.2004 (Annexure-R-2/8), wherein the appellant was informed that the operation of the memo dated 8.11.2004 is kept in abeyance till further orders. They further contended that thereafter another memo was issued to the appellant to take back his premium amount of Rs.10,000/-, but the appellant did not take it back and thesame is lying with the account of Nagar Panchayat. Their contention is that when Nagar Panchayat took the decision to not allot the shop to, the appellant, the shop was put to auction by the impugned auction notices. (4) The State GovernmenVrespondent No.1 filed a formal return saying that the matter relates to the appellant and Nagar Panchayat, therefore, there is no specific say from their end. ^ (5) The learned Single Judge dismissed the writ petition on the ground thatthe appellant has not submitted all the facts of the case and has chosen to place the facts of his own choice in order to seek relief of quashing of the auction notice; and that the appellant was not entitled to J^y^ i/y^ ^ j/' / • ' '^, ^ i^-....—^^V vs tl ^M^'''^!^ '^. % ^'•^"••^ ;/ 3^ Writ Appeal No. 399 of 2010 ^ be considered in view of the fact that the appellant has himself failed to deposit the entire premium amount for allotment of the shop. (6) Mr. Anup Majumdar, learned counsel appearing on behalf of the appellant, argued that the appellant placed entire facts on records; nothing was suppressed by him; the appellant also placed all relevant documents on record challenging the auction notices issued by respondent No.2; so far as non-payment of further amount of premium is concerned, he argued that when by a notice dated 11.11.2004 (Annexure-R-2/8) the earlier notice relating to making further payment and getting a deed register was stayed, there was no question of making further payments by the appellant which he was always ready to pay. He submitted that thereafter various representations were made which shows bonafides of the appellant having his keen interest in taking the shop on allotment. ^*' f , (7) On the other hand, Mr. Prashun Bhaduri, learned counsel appearing on behalf of respondent No.2, opposed these arguments and supported the order passed by the learned Single Judge. He reiterated that since the appellant was an encroacher, therefore, he has no right for settlement. (8) We have heard learned counsel for the parties at length and have also perused the records ofthe writ petition. (9) We find it undisputed that the appetlant was in possession of a small area in present B-1 Market of Nagar Panchayat. The application filed by the appellant for permission for an area in the year 1975 was ...^^ Writ Auueal No. 399 of 2010 3< received by the then Gram Panchayat on 22.9.1975. Respondent No. 2 has also filed the copy of the above application. It further appears from the record that in the year 2004 a decision was taken by Nagar Panchayat to allot the shops to certain persons who were running their business on the small places in the Market area by raising super structure. This isclear from Annexure-P/1 filed along with the rejoinder. It is after this decisiontaken by Nagar Panchayat, various shop keepers, who were in possession of their respective places, were directed to pay certain amounts of premium in between Rs.10,000/- to Rs.74,850/-. The appellant was also directed to deposit Rs.10,000/- towards premium for a shop of the size of 3 x 2.65 meters having a proposed premium of Rs.52,200/- and rent of Rs.175/-. The appellant deposited Rs.10,000/- on 27.10.2004. A perusal of Annexure-P/3 would show that inall 33 persons were so directed who deposited various amounts towards premium which was fixed by Nagar Panchayat according to their own criteria. Nagar Panchayat after taking the deposit from the appellant issued a memo dated 8.11.2004 and directed the appellant to pay remaining amount of premium and to get the registration done, but subsequent thereto another memo was issued and the memo dated 8.11.2004 was kept in abeyance. It is for this reason, the appellant did not deposit the remaining amount and nothing could be done thereafter. Mr. Bhaduri could not explain as to why the earlier memo dated 8.11.2004 was stayed by Nagar Panchayat. No decision of Nagar Panchayat in this regard has been brought on record. In the above facts and circumstances, the ground taken by the learned Single Judge for dismissal of the writ petition thatthe appellant did not deposit the entire amount of premium on his own does not appear ^^ Writ Appeal No. 399 of2010 ^c ^. to be reasonable. The other ground for dismissal of the writ petition that the appellant did not bring all the facts on record is also unacceptable. We have gone through the records of the writ petition, replies & rejoinder. Almost all the relevant records which may be in possession of the appellant has been filed in the writ petition as nonew record from the side of the respondents has been fited on which it could be said that the appellant suppressed the material facts or documents. The dismissal of the writ petition on the said ground also, therefore is not reasonable. (10) Mr. Majumdar argued that though the cases of other similarly placed persons, whose names were also mentioned in Annexure-P/3, were processed and proposal was sent by Nagar Panchayat, but the case of the appellant was not processed for allotment. Even after such processing of the cases of other similarly situated persons their proposal for allotment was refused by the State Government by an order dated 21.9.2005 which they had challenged in W.P. No. 5999/2005. The said writ petition has been allowed and the order of State Government dated 21.9.2005 has been quashed. The auction notice relating to those shops* have also been quashed and the writ Court has made it open to the State Government to take fresh decision in relation to the proposal of Nagar Panchayat relating to those shops. These facts have not been disputed by Mr. Bhaduri. (11) A perusal of the order of the writ Court in W.P. No. 5999/2005 and the table prepared of the persons to whom the shops were proposed to be allotted on premium would show that the petitioners in W.P. No. 5999/2005 are none else, but the same persons who are mentioned in F^dS^ ^El.^ Ji j .^^s^ Writ Appeal No. 399 of2010 ^7 the chart prepared by Nagar Panchayat. Ahnexure-P/3, which is not denied by Nagar Panchayat gives a picture as to who were the possession holders at the relevant time and in whose favour a decision was taken for allotment of the shops and who paid the amount of premium for such purpose. We find that the name of the appetlanVpetitioner is there, therefore, the case of the appellant and the petitioners of other writ petition were similar and they were similarly placed persons. However, Nagar Panchayat processed the case of some of them for allotment of the shops, whereas it did not process the case of the appellant. No valid reason has been assigned by Nagar Panchayat in the writ petition for not processing the case of the appellant as they only contended that the appellant was an encroacher. We do not find any such classification in the decision taken by the Nagar Panchayat till realization of the amount towards the premium and preparation of various documents by them. All the persons who were holding possession of some area in the Market including the appellant were chosen for allotment and various amounts towards premium were taken from them. Even a notice was issued to the appellant to pay remaining amount and to get aregistered deedexecuted, but thereafter without any good reason the case of the appellant was not further processed and Nagar Panchayat took a decision to put the shop on auction. On a thorough examination of entire material available on record, we do not approve the said action of Nagar Panchayat as the same was arbitrary and discriminatory. (12) For the foregoing reasons, we set-aside the impugned order passed by the learned Single Judge. Consequently, the writ petition is allowed and the impugned auction notices dated 19.3.2010 & 29.3.2010 Writ Auneal No. 399 of 2010 •^ ^r vatti both are quashed. Nagar Panchayat, Gandai (respondent No.2) is directed to process the case of the appellant for appropriate decisidn in light of the observations made by this Court taking into consideration that the appellant was running his business since long in the B-1 Market, and his possession was removed on the assurance that he would be allotted a shop after its construction in the Market place and the amount of Rs. 10,0007- was realized from him towards premium ofthe shop which he had immediately paid like the other shop keepers. (13) The appeal is allowed to the extent indicated above. (14) There shall be no order as to cost. Sd/- SunjlKumarSinha Judge Sd/- R.S. Sharma Judge