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2018 DIGILAW 89 (CHH)

Jagdish Sharaf S/o Shri Lochan Prasad Sharaf v. State Of Chhattisgarh

2018-02-06

SHARAD KUMAR GUPTA, THOTTATHIL B.RADHAKRISHNAN

body2018
JUDGMENT : Sharad Kumar Gupta, J. 1. In this writ appeal, the challenge levied is to order dated 25.10.2017 passed by the learned Single Judge of this Court in Writ Petition(C) No.3430/2006 whereby and whereunder he dismissed the writ petition filed by the appellant. 2. This is admitted by the respondents that the disputed shop No. 6 situated near the Bhalerao Stadium, Janjgir had been alloted to the appellant by open auction; he had deposited the full amount regarding the auction of the disputed shop; possession of the disputed shop had been given to him; the Collector, District Antyavasayi Sahakari Vikas Samiti Maryadit, District – Janjgir-Champa cancelled the allotment of the disputed shop on 27.10.2005 vide Annexure P-3 (Annexure R-2/3); the appellant preferred the writ petition bearing No. 6096/2005 wherein the learned Single Judge on 09.12.2005 vide Annexure P-4 quashed the order Annexure P-3 (Annexure R-2/3) and observed that, that order shall not come in the way of the Collector from taking appropriate action against the appellant after giving him opportunity of hearing; the District Collector issued show cause notice to the appellant on 10.03.2006 vide Annexure P-7 (Annexure R-2/4); he submitted his reply on 17.03.2006 vide Annexure P-8; and on 12.06.2006 again the allotment of the disputed shop was cancelled by respondent No. 3 vide Annexure P-9. 3. In brief, the appellant's case is that out of 10 shops, 3 shops were auctioned for the persons of general category. Guidelines were framed vide Annexure P-1. On 13.05.1996 vide Annexure P-2 the proposal was sent to C.M.O. Champa for execution of the registry. By Annexure P-7 (Annexure R- 2/4) respondent No. 3 alleged that he has not paid the rent since last 10 years, he has also sublet the disputed shop to one Ratan Bhavnani on rent. He has also done permanent modification in the disputed shop without obtaining the permission from the competent authority, though these allegations were not true. There was no condition regarding monthly rent. 4. In brief, the respondent's case is that the rent of the disputed shop was Rs. 300/- per month; the appellant has deposited only Rs. 3600/- as rent against Rs. 30,300/-; he had violated Clause 3 and 5 of the General Instructions, Annexure R-2/1; and the appellant had not executed any registered sale deed/agreement/lease. 5. 4. In brief, the respondent's case is that the rent of the disputed shop was Rs. 300/- per month; the appellant has deposited only Rs. 3600/- as rent against Rs. 30,300/-; he had violated Clause 3 and 5 of the General Instructions, Annexure R-2/1; and the appellant had not executed any registered sale deed/agreement/lease. 5. Being aggrieved by the order annexure P-9 appellant preferred the aforesaid writ petition, which was dismissed as aforesaid. Being aggrieved by the impugned order of learned Single Judge, the appellant has preferred this writ appeal. 6. Shri Sushobhit Kostha, counsel for the appellant argued that order Annexure P-7 (Annexure R-2-/4) is bad in law because it violates the principle of natural justice. No pre-decisional opportunity of hearing was given to him. Neither there was any term and condition stipulating rent nor there was any restriction on subletting of the disputed shop. Thus, the impugned order may be set aside and the respondents be directed to allow him to run the disputed shop subject to the payment of total rent due within a reasonable period of time. 7. Shri U.N.S. Deo, Government Advocate for the respondents/State and Shri A.S. Kachhawaha, counsel appearing for the Municipal Corporation, Janjgir Champa argued that the impugned order is just and proper, appellant has violated the terms of the instruction. Thus no interference is called for by this Court. 8. This is apt to mention Clause 8 of Annexure P-1 of the writ petition which reads as under :- ^^vU; 'krsZa tks vkosnu&i= ds lkFk layXu dh tk jgh gS] og izR;sd ftys esa uhyke dh xbZ nqdkuksa ds lkFk izLrkfor dh tk,A^^ 9. The appellant has not produced any instrument wherein such terms have been enumerated, which may be considered by us. For not doing so, there is no explanation from the appellant. 10. The appellant has put his case by filing photocopy of the receipt dated 29-3-2000 that he had deposited Rs. 3,600/- before the respondents. If the appellant had already deposited entire amount of Rs. 48,100/- in the year 1996 and 1997 then why he has deposited Rs. 3,600/- later. For doing so, he has not given any plausible explanation. 11. As per provisions of Section 54 of the Transfer of Property Act, 1882, sale of an immovable property of the value of more than one hundred rupees may be effected only by a registered instrument. 3,600/- later. For doing so, he has not given any plausible explanation. 11. As per provisions of Section 54 of the Transfer of Property Act, 1882, sale of an immovable property of the value of more than one hundred rupees may be effected only by a registered instrument. In the case in hand, as per the appellant's case, value of the disputed shop is Rs. 48,100/-. As per the reply of the appellant vide Annexure P-8, no agreement has been executed regarding the disputed shop. From the facts, circumstances and material placed on record, it is clear that no registered sale deed has been executed regarding the disputed shop. The appellant is unable to show as to why he has not taken any step including legal recourse for execution of the registered sale deed of the disputed shop in his favour. 12. It is well settled law that without a registered sale deed, no title is conferred or no right is created in favour of any person. See : Suraj Lamp and Industries Private Limited -v- State of Haryana and another (2012) 1 SCC 656 ; Syndicate Bank -v- Estate Officer and Manager, APIIC Ltd. and others (2007) 8 SCC 361 ; and Patel Natwarlal Rupji -v- Kondh Group Kheti Vishayak and another (1996) 7 SCC 690 . 13. Clause 8 of Annexure R-2-1 is relevant which reads thus :- ^^8- nqdku@'ksM~l@xqeVh vkcafVr djus dh 'krsZ %& ik= fgrxzkfg;ks dks nqdku@'ksM~l@xqeVh vkcafVr djus dh fuEufyf[kr 'krksZa dk vfuok;Z :i ls ikyu djuk gksxk %& 1- fuxe }kjk fdjk;s ij vkcafVr nqdku@'ksM~l@xqeVh vkcafVrh }kjk Lo;a lapkfyr gksA 2- nqdku@'ksM~l@xqeVh ftl fLFkfr esa gS mlh fLFkfr esa vkcafVrh ysus ds fy, lger gksA 3- fuxe dh iwokZuqefr ds fcuk vkcafVrh }kjk nqdku@'ksM~l@xqeVh esa dksbZ LFkkbZ ;k vLFkkbZ ifjorZu ugh fd;k tkosxkA 4- fuxe }kjk fu/kkZfjr ekfld fdjk;k dk fu/kkZfjr :i ls vkcafVrh }kjk le; ij Hkqxrku fd;k tkosxkA 5- vkcafVrh }kjk nqdku@'ksM~l@xqeVh u rks fdlh vU; O;fDr dks fdjk;s ij nh tk;sxh vkSj u gh fdlh nwljs vU; O;fDr dks mldk vkf/kiR; fn;k tkosxkA 6- nqdku@'ksM~l@xqeVh ds vkcaVu ds iwoZ vkcafVrh }kjk vuqca/k i= fu"ikfnr fd;k vkSj vuqcU/k&i= esa mYysf[kr leLr 'krksZa dk mlds }kjk ikyu fd;k tkosxkA^^ 14. Relevant portion of clause 9 of Annexure R-2-1 is also noticeable and reproduced below :- ^^-------------------------dsoy vkcaVu dh 'krksZa ds mYya?ku dh fLFkfr esa gh vkcaVu lekIr fd;k tk,] fo'ks"k :i ls ;fn nqdku vkcafVrh }kjk Lo&pfyr ugha gS] mls vkcafVrh }kjk vU; O;fDr dks fdjk;s ij nh xbZ gks vFkok fu;fer :i ls fcuk Ik;kZIr dkj.k fdjk;s dk Hkqxrku u gks jgk gksA fdjk;s ij vkcaVu ml fLFkfr esa Hkh lekIr dh tk,] ;fn nqdku fu;fer :i ls lapkfyr ugha gks jgh gks vkSj yEch vof/k rd cUn j[kh tk jgh gksA----------------^^ 15. It is the appellant's case that before passing of order Annexure P-9 by the respondent No. 3 he had given him notice which was replied by him vide Annexure P-8. It is mentioned in Annexure P-9 that Annexure P-8 was considered by the respondent No. 3 and it was found that the appellant had sublet the disputed shop to another person and he had modified the structure of the disputed shop without permission of the competent authority, further he has not deposited the rent. As per Annexure R-2/2, an inquiry was conducted and statement of one Ratan Bhavnani was also recorded to whom allegedly the appellant had sublet the disputed shop. The findings given by the respondent No. 3 by order Annexure P-9 is the finding of fact based on the materials placed on record. 16. Mr. Sushobhit Kosta, counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in Union of India and others Vs. R. Reddappa and another [ (1993) 4 SCC 269 ], relevant portion of para 5 of which is quoted below :- “.......... True the jurisdiction exercised by the High Court under Article 226 or the Tribunal is not as wide as it is in appeal or revision but once the court is satisfied of injustice or arbitrariness then the restriction self-imposed or statutory, stands removed and no rule or technicality on exercise of power, can stand in way of rendering justice...........” 17. Mr. Sushobhit Kosta, counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the matter of Eastern Coalfields Limited and others -v- Bajrangi Rabidas [ (2014) 13 SCC 681 ] which 19 of which is relevant and quoted below:- “19. Mr. Sushobhit Kosta, counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the matter of Eastern Coalfields Limited and others -v- Bajrangi Rabidas [ (2014) 13 SCC 681 ] which 19 of which is relevant and quoted below:- “19. …...........It is well settled in law that jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power of the High Court is required to be exercised "to reach injustice wherever it is found". In Sangram Singh v. Election Commissioner, Kotah and Anr. (1955) 2 SCR 1 , it has been observed that jurisdiction under Article 226 of the Constitution is not to be exercised whenever there is an error of law. The powers are purely discretionary and though no limits can be placed upon that discretion, it must be exercised along recognized lines and not arbitrarily and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in such class of cases unless substantial injustice has ensued or is likely to ensue. That apart, the High Court while exercising the jurisdiction under Article 226 of the Constitution can always take cognizance of the entire facts and circumstances and pass appropriate directions to balance the justice. The jurisdiction being extraordinary it is required to be exercised keeping in mind the principles of equity. It is a well-known principle that one of the ends of equity is to promote honesty and fair play. If a person has taken an undue advantage the court in its extraordinary jurisdiction would be within its domain to deny the discretionary relief. …....” 18. Looking to the above-mentioned facts, circumstances and materials placed on record, this Court finds that the appellant has failed to show that the respondent No. 3 has acted arbitrarily while passing the order Annexure P-9 or substantial injustice has ensued to the appellant. Thus, the appellant does not get any help from the above-mentioned judicial precedents laid down by Hon'ble Supreme Court. 19. Looking to the entire materials placed on record, it does not appear that while passing the order Annexure P-9, the respondent No. 3 has committed any illegality, perversity or it has caused miscarriage of justice. Hence we are agree with the reasoned impugned order dated 25-10-2017 passed by learned Single Judge. 19. Looking to the entire materials placed on record, it does not appear that while passing the order Annexure P-9, the respondent No. 3 has committed any illegality, perversity or it has caused miscarriage of justice. Hence we are agree with the reasoned impugned order dated 25-10-2017 passed by learned Single Judge. Hence the appeal being devoid of merit deserves to be and is hereby dismissed.