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1999 (2) JLJ 209
S.P. Srivastava and N.G. Karambelkar, JJ.
Jagdish Prasad Shivhare v. Municipal Corporation, Gwalior and others
L.P.A. No. 66 of 1999; against the order of Single Bench; Decided on 24.6.1999.
(2) Constitution of India -- Art. 226 -- Civil P.C., 1908 -- O. 6 R. 2 -- proceedings under Art. 226 -- principles underlying provisions under O. 6 R. 2 of the Code may be safely applied excepting hebeas corpus cases. [Para 9]
(3) High Court Rules and Orders (M.P.) -- Ch. II Part II -- Rr. 1 (a), 13 and 14(a) -- petition under Art. 226 – must contain a concise statement of facts as envisaged under R. 14(a) -- facts are ordinarily decided on affidavits -- better particulars may be asked as contemplated under R. 13 [Para 10]
(4) Civil P.C., 1908 -- O. 6 Rr. 2 and 5 -- distinction must be made between omission to state material facts and omission to give full particulars -- material facts omitted -- no party can be allowed to raise contention on such point even it some evidence is available. [Para 12]
(5) Civil P.C., 1908 -- O. 6, Rr. 5 and 2 -- material facts pleaded but particulars not given -- Court may permit the points to be raised if opposite party is not prejudiced. [Para 12]
(6) Constitution of India -- Art. 226 -- petitioner not entitled to the relief upon the facts and documents -- neither stated nor referred to in pleadings -- no evidence can be looked into upon a plea never raised. AIR 1930 PC 57 followed. [Para 13]
(7) Letters Patent -- Cl. 10 -- power of appellate Court -- is co-extensive with powers of original forum. [Para 14]
(8) Constitution of India -- Art. 226 -- powers of High Court under -- are discretionary -- appellate Court should be slow to interfere in such powers. AIR 1956 SC 110 followed. [Para 14]
(9) Letters Patent -- Cl. 10 -- discretion exercised by Single Judge vitiated being arbitrary or pervesse -- resulting in manifest miscarriage of justice -- such order may be interfered within appeal. AIR 1964 All 534 relied on [Para 16]
¼1½ Hkkjr dk lafo/kku && vuq- 226 && flfoy izfØ;k lafgrk] 1908 && /kkjk 141 ¼lu~ 1976 esa ;Fkk la‘kksf/kr½ && lafgrk dh /kkjk 141 ds v/khu flfoy okn dk fopkj.k fofu;fer djus dh izfØ;k && canh izR;{khdj.k ekeyksa dks NksM+ dj vuq- 226 ds v/khu dk;Zokfg;ksa dks ykxw dh tk ldrh gSA , vkb vkj 1979 byk- 128 rFkk 1992 byk- flfoy tuZy 274 voyafcrA ¿ iSjk 9
¼2½ Hkkjr dk lafo/kku && vuq- 226 && flfoy izfØ;k lafgrk] 1908 && vk- 6 fu- 2 && vuq- 226 ds v/khu dk;Zokgh && lafgrk ds vk- 6 fu- 2 ds v/khu mica/kksa ds ewy fl)kar canh izR;{khdj.k ekeyksa dks NksM+ dj fuf‘pr :i ls ykxw fd, tk ldrs gSaA ¿ iSjk 9
¼3½ mPp U;k;ky; fu;e rFkk vkns‘k ¼e-iz-½ && v/;k; 2 Hkkx 2 && fu- 1¼d½] 13 rFkk 14¼d½ && vuq- 226 ds v/khu ;kfpdk && fu- 14¼d½ esa ;FkkifjdfYir rF;ksa dk laf{kIr dFku varfoZ"V gksuk pkfg, && lkekU;r% rF;ksa dk fofu‘p;u ‘kiFki=ksa ds vk/kkj ij gksrk gS && fu- 13 ds v/khu ;Fkkuq/;kr csgrj fof‘kf"V;k¡ ek¡xh tk ldrh gSaA ¿ iSjk 10
¼4½ flfoy izfØ;k lafgrk] 1908 && vk- 6 fu- 2 rFkk 5 && rkfRod rF;ksa dk dFku djus esa yksi rFkk iw.kZ fof‘kf"V;k¡ nsus esa yksi ds chp foHksn fd;k tkuk pkfg, && rkfRod rF; yqIr && dqN lk{; miyC/k gks rc Hkh ,sls fcanq ij fdlh Hkh i{kdkj dks izfrfojks/k djus dh vkKk ugha nh tk ldrhA ¿ iSjk 12
¼5½ flfoy izfØ;k lafgrk] 1908 && vk- 6 fu- 5 rFkk 2 && rkfRod rF;ksa dk vfHkopu ijarq fof‘kf"V;k¡ ugha nh xbZa && ;fn fojks/kh i{kdkj ij izfrdwy izHkko ugha iM+rk rc U;k;ky; }kjk bu fcanqvksa ij iz‘u mBkus dh vuqKk nh tk ldrh gSA ¿ iSjk 12
¼6½ Hkkjr dk lafo/kku && vuq- 226 && rF;ksa rFkk nLrkostksa ds vk/kkj ij ;kph vuqrks"k dk gdnkj ugha && vfHkopu esa u dfFkr] u fufnZ"V gh && ,sls vfHkopu ds vkkkj ij fdlh lk{; dh tk¡p&iM+rky ugha dh tk ldrh tks fd;k gh ugha x;k gksA , vkb vkj 1930 ih lh 57 vuqlfjrA ¿ iSjk 13
¼7½ ysVlZ isVsaV && [kaM 10 && vihy U;k;ky; dh ‘kfDr && ewy U;k;ky; dh ‘kfDr;ksa ls lefoLrh.kZ gSA ¿ iSjk 14
¼8½ Hkkjr dk lafo/kku && vuq- 226 && mPp U;k;ky; dh ‘kfDr;k¡ && oSosfdd gSa && ,slh ‘kfDr;ksa esa vihy U;k;ky; }kjk lkekU;r% gLr{ksi ugah fd;k tkuk pkfg,A , vkb vkj 1956 ,l lh 110 vuqlfjrA ¿ iSjk 14
¼9½ ysVlZ isVsaV && [kaM 10 && ,dy U;k;k/kh‘k }kjk foosd dk iz;ksx euekuk vFkok foi;ZLr gksus ds dkj.k nwf"kr && izdV U;k;gkfu esa ifj.kr && vihy esa ,sls vkns‘k esa gLr{ksi fd;k tk ldrk gSA , vkb vkj 1964 byk- 534 voyafcrA ¿ iSjk 16
Srivastava, J. -- 1. feeling aggrieved by the order dismissing his writ petition the petitioner has now come up in Letters Patent Appeal seeking redress praying for the setting aside of the same and further seeking a direction requiring the Municipal Corporation, Gwalior, the respondent No.1, to renew the licence No. 19/1996-97 in Form FL III for dealing in foreign liquor granted in his favour.
2. We have heard the learned counsel for the appellant and have carefully perused the record.
3. The facts in brief, shorn of details and necessary for the disposal of this appeal lie in a narrow compass. The petitioner claims to be a proprietor of Sangam Hotel and Restaurant, situate at Tansen Road, Gwalior, which has been established by him in a rented premises. He had applied for the licence in FL. III to deal in foreign liquor which had been initially granted for the period from 1st March 1997 and was renewed for the period 1.4.1997 to 31.3.1998. Lateran, it was further renewed for a period from 1.4.1998 to 31.3 .1999 vide the order dated 21.4.1998 passed by the Ayukt, Nagar Palika Nigam, Gwalior. The operation of the renewal of the licence issued in favour of the petitioner in Form FL-III was stayed. Lateran, vide the order dated 2.6.1998 the Commissioner, Municipal Corporation, Gwalior, cancelled the aforesaid licence. Feeling aggrieved by the order of cancellation of the licence the petitioner filed the writ petition giving rise to this appeal, on 17.6.1998. The petitioner had prayed for the quashing of the order dated 2.6.1998 cancelling the licence and had further prayed for a direction requiring the respondents not to take any action against him on the ground of irrelevant inquiry.
4. During the pendency of the writ petition an application being IA No. 2635 of 1999 was filed on 5.4.1999 seeking permission to amend the writ petition by adding a ground to the following effect :--
"(k) That, the present order Annexure-D is also based on the same direction of the State Government on the basis of which the order Annexure-P/1 was passed. There is no enquiry pending against the petitioner in the office of Lokayuct. There can be no such enquiry also. Thus, on this ground renewal cannot be challenged."
Another amendment sought for was for incorporating another relief by adding in the end of relief para "(ii)" the words "The order Annexure-D may kindly be quashed.
5. Before the learned Single Judge the contesting respondents raised a preliminary objection that the petition had been rendered infructuous as the period of licence had expired on 31.3.1999 and there was no prayer for further renewal of the licence.
6. The learned Single Judge noticed that vide the order dated 12.3.1999 the petitioner's prayer for renewal of FL-3 Licence for the year 1999-2000 had been rejected and the said order had not been challenged by the petitioner in the petition. It was submitted before the learned single Judge on behalf of the petitioner that he had moved an amendment application praying for quashing of the order, Annexure-D. The learned single Judge has further noticed that alongwith the amendment application no such order had been annexed. The annexures were filed with the application for the interim relief which had already been disposed of.
7. In the impugned order the learned single Judge has observed that unless proper application for amendment in the petition narrating all the facts was filed, the question of cancelling document Annexure-D cannot be considered. It was further observed that in the absence of proper relief for quashing the order no relief could be granted to the petitioner. It was found that the writ petition as filed had been rendered infructuous as the period of FL-III Licence had already been expired on 31.3.1999. In the aforesaid view of the matter the learned Single Judge came to the conclusion that no relief could be granted to the petitioner. The writ petition was accordingly dismissed.
8. The present appeal was filed on 1
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