.0 c^-'i SINGIE BENCIf BEFORE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR •WRIT PETITION (C) No. 153) /2010 PETITIONER ^" Shivendra Das Vaishnav, S/o Shriramannat Das Vaishnav, aged about 55 years, R/o Ward No. 6, Gandai, District Rajnandgaon (C.G.) VERSUS RESPONDENTS i\.-0 ^.^ nvj./' ^o \/,<fi\^ .^i§r^ ^•^y .:.'^'^' ^s^ StateofChhattisgarh, 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 Rajnandgdon (C.G.) WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OFINDIA. :i^?ti:iti::?^^^iii? HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fQ No. 1531 of2010 PETITIONER : Shivendra Das Vaishnav. VERSUS RESPONDENTS : State of Chhattisgarh & Another. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. 1» Present: Shri Anup Majumdar, Advocate for the petitioner. Shri Shashank Thakur, Panel Lawyer for the State/respondent No.l. Shri P.K.Bhaduri, Advocate for the respondent No. 2. ORDER(ORAL) (Passed on 27th day of October, 2010) 1. By this petition, the petitioner seeks for the following rcliefs: "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 to execute the registry of of the shop No. 14 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 dispossessthe petitioner from his shop. 10.4) Any other feliefmay also be granted to the petitioner which this Hon'ble Court may deem fit and proper in the facts and circumstances ofthe case." 2. Leamed counsel appearing for the petitioner submits that the petitioner has deposited a sum ofRs. 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 ofpremium 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 respcndent No. 2 for auction of7 shops in B-Market/Gandai Block B-l, Rajnandgaon and thereafter, revised notice was also published in the newspaper on 29.03.20]0. i 5 Thus, this petitlon seeking quashing of the aforestated auction notices with a fiirther direction to execute the registry of the shop No. 14 in favour ofthe petitioner, and not to deprive him from carrying on his business. 3. On query, leamed 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 ofshop, as the petitioner kept waiting since October, 2004 for execution ofthe registry. 4. On the other hand, Shri Bhaduri, leamed counsel appearing for the respondent No. 2 submits that after deposit ofa sum ofRs. 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 stmcture, 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/stmcture and he was carrying on his business with the consent or permission ofany authority. 5. 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 ofthe notice dated 08/10.11.2004 (Annexure P/4) whereby he was directed to deposit the balance amount ofpremium. 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 ofRs. 52,200/- for allotment ofshop at the place, wherein allegedly the petitioner was running his business, except the subsequent notice dated 08/10.11.2004. 6. It is well settled that ifthe pleadings and prayer are not proper , it is not expected that the respondents shall respond to it and in that event, there is no other altemative exceptto dismiss the petition for want of material facts. 7. The Supreme Court, m Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor & Others , observed as under: "8...It is toowell settled that the petitioner who ap^roaches the court invoking the extraordinary jurisdiction of the court under Article 226 must "fiilly aver and establish his rights flowing from the' bundle of facts thereby requiring the respondent to indicate its stand either by Benial or by positive assertions. But in the absence of any averments in the writ petition or eyen in the rejoinder-affidavit, it is hot permissible^ for a court to arrive at a conclusion on a factual position merely on the basis of submissions made in the course ofhearing." 8. In V.K.Majotra v. Union of India & Others2, the Supreme Court obser^ed as under: "8...The writ courts would be well advised to decide the petitions on the points raised in the petition and ifin a rare case keeping in view the facts and circumstances of'the case any additional points are to be raised then the concemed and affected parties should be put to notice on the additional points to satisfy the ' (1998) 7 SCC 469 2 (2003) 8 SCC 40 V^ principles of natural justice. Parties cannot be taken by surprise. We leave the discussion 9. In B.S.N.Joshi & Sons Ltd. v. Nair Coal Services Ltd. & Others3, it was observed as under: ''37. Before we embark upon the respective contentions made before us on the said issue, we may notice that although the point was urged durin^ hearin^ 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 contentibn. (See Chfmajirao KanhojiraoShirke v. Oriental Fire & General Insurahce Co. Ltd., SCC at p.625.)" lO.Further, in Raj Kumar Soni & Another v. State ofU.P., the Supreme Court held as under: "II... Jt is a fiindamental principle of law that a person invoking the extraordiriary 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. Parties are not entitled to choose their own facts to put fonvard before the Court. The foundational facts are required to be pleaded enabling the Court to scmtinise the nature and content of the right alleged to have been violated by the authority." 11. In the case on hand, the petitioner has not submitted all the facts ofthe case and has chosen to place the facts ofhisown 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 ofthe fact that the petitioner has himself failed to deposit the entire premium amount for allotment ofthe shop. 12.For the discussion and reasons as aforestated, the writ petition is dismissed. Sd/- SatishK.Agnihom Judge Amit 3 (2006) 11 SCC 548 4 (2007) 10 SCC 634