Civil Revision No. 2182 of 2010 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Civil Revision No. 2182 of 2010 (O&M) Date of Decision : 1.4.2010 Ram Aggarwal .......... Petitioner Versus Satish Tyagi & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Aman Pal, advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 24.12.2009, passed by the learned Addl. District Judge, Gurgaon, vide which application moved by the petitioner under Order 39 Rules 1 & 2 of the Code of Civil Procedure was ordered to be dismissed by reversing the order passed by the learned trial Court. The plaintiffs / petitioner filed a suit, claiming themselves to be the residents of H. No. 1144 and 1143 in Sector 4, UE Gurgaon, which is developed and controlled by the Haryana Urban Development Authority. It was pleaded case of the plaintiffs, that nobody could be permitted to do commercial activities, except with the permission of the HUDA. The case of the petitioner was that on 1.4.2009, defendant No.4 Satish Tyagi started a liquor vend in the shopping centre of Sector 4 Gurgaon under L-2 licence from the Deputy Excise & Taxation Commissioner (Excise), defendant Civil Revision No. 2182 of 2010 2 No.2. It is further the case of the plaintiffs/ petitioner, that subsequently the liquor vend was shifted to Shakuntla Campus, which according to the plaintiff / petitioner was in violation of the Excise Policy as well as the rules of the HUDA, as no permission was taken from the HUDA before starting the liquor vend at Shakuntla Campus. The contention of the learned counsel for the petitioner was, that by opening liquor vend, where the people take liquor, is a source of nuisance to the residents of the area. On notice, the suit was contested. It was pleaded by the defendant / respondents, that the liquor vend was installed in accordance with the provisions of the Excise Policy. It was further the case of the defendant / respondents, that as per Rule 37(9) of the Haryana Liquor Licence Rules, 1970, the liquor vends in Urban Areas are required to be located in the market places in the cities. The vend in question was duly approved by the Committee comprising SDM, Gurgaon and DETC Gurgon in presence of responsible and respectable members. On merit, allegations made by the plaintiffs / petitioner were denied. Though, defendant No.3 filed separate written statement stating that the liquor vend has been opened in Shakuntla Cinema Campus without seeking permission from the District Collector, Gurgaon as Shakuntla Campus was under resumption by the HUDA. Defendant No.3 HUDA went to the extent of asserting, that the State of Haryana nor Deputy Excise and Taxation Commissioner were entitled to earmark the said place for liquor vend. Defendant No.3 further took a plea that the liquor vend could not be Civil Revision No. 2182 of 2010 3 opened without seeking permission of HUDA as it was under resumption. It was also the case of the HUDA that neither the State of Haryana nor Deputy Excise and Taxation Commissioner was entitled to earmark the said place for liquor vend. He also referred to the letter written to the Deputy Excise and taxation Commissioner, Gurgaon for stopping the liquor vend in the Shakuntla Cinema Campus. However, the application was opposed by the Excise and Taxation Department. The learned trial Court granted the injunction. However, the learned lower appellate Court found that the very basis for objection to open the liquor vend in Shakuntla Campus was based on wrong presumption of Shakuntla Campus having been resumed, as in fact order of resumption had been set aside. The learned lower appellate Court, therefore, held that merely because an appeal was pending against the order of resumption, it could not be a ground to divest the owner of his rights to use the property. The learned lower appellate Court also held that the vend was running in accordance with the Excise Policy. The finding recorded by the learned lower appellate Court reads as under :- “18. It has also come on the file that initially deft. No. 4 had started the vend in the market of Sector 4 Gurgaon and subsequently it was shifted to Shakuntla Cinema after the objection of RWA, Sector 4 Gurgaon. Shakuntla Cinema too is a part of the market of Sector 4 Gurgaon and cannot be termed as an area not falling within the market places as required under the Rules Civil Revision No. 2182 of 2010 4 and Policy for the year 2009-10. Deft. No.4 shifted his vend from Sector 4, Market and started the vend in a duly approved vend auctioned by defts. No.1 & 2 and as such, plaintiffs cannot raise any objection against starting of vend and that too after vend has been auctioned and huge licence fees has been paid by deft. no.4 to defts. No. 1 & 2. It has also been alleged that Shakuntla Cinema has alleged been resumed and no permission was sought from HUDA before permitting the starting of vends in the Shakuntla Cinema. The Excise Policy for the year 2009-10 provides that Govt. and its agencies will try to provide space for funning of vends in urban areas of the State wherever available and possible at reasonable rates for operating liquor vends and as such HUDA cannot oppose the running of vends in the Shakuntla Cinema hall premises. Moreover, resumption order of Shakuntla Cinema has already been set aside vide judgment and decree dated 25.2.2006 in a suit titled as M/s Kalra and Company Vs. HUDA. Though, it has been argued that an appeal is pending against the judgment dated 28.2.2006, yet mere pendency of appeal would not divest the owner of his right to run the business in said premises.” Mr. Aman Pal, learned counsel appearing on behalf of the petitioner, challenged the order passed by the learned Addl. District Judge, Gurgaon, primarily on the ground, that shifting of the liquor vend from Sector 4 Market was contrary to the Excise Policy, as the liquor vend was Civil Revision No. 2182 of 2010 5 allotted for being run in the market, whereas it was illegally shifted to Shakuntla Cinema campus. It is also the contention of the learned counsel for the petitioner, that running of liquor vend by the Contractor in Shakuntla Cinema campus, was contrary to law as no permission from the HUDA was taken before shifting the liquor vend to Shakuntla Cinema campus. The learned counsel for the petitioner also contended, that the learned lower appellate Court wrongly set aside the order passed by the learned trial Court, by treating it to be obstruction in running of the business, which could not be permitted, as the plaintiff / petitioner has merely prayed for shifting of the liquor vend and not closing it. On consideration, I find no force in the contentions raised by the learned counsel for the petitioner. Once, the Excise and Taxation Department had taken a positive stand, the liquor vend was being run as per the permission granted by the Excise & taxation Department, it could not be said that it was being run in violation of the Excise Policy, as contended. The plaintiff has not been able to point out any Rule or provision of the Excise Policy, which was violated by running the liquor vend in Shakuntla Cinema campus. There is no provision under law where HUDA can object to running of a liquor vend after the property has been sold. The objection taken by the HUDA was for the reason that property had been resumed. It was in these circumstances that defendant No.3 had taken a stand that Excise and Taxation department issued a letter not to allow any commercial activities in Shakuntla Cinema campus, because of the order of resumption. Once it was proved, that order of resumption, had been set aside the very Civil Revision No. 2182 of 2010 6 objection did not have any legs to stand. Consequently, it cannot be said that there was any violation of the Excise Policy or the rules framed by HUDA or the State of Haryana. The contention of the learned counsel for the petitioner that mere prayer of shifting was made is without any basis. It was not for the plaintiffs / petitioner, to direct as to where the particular person should run his business, when the same is being run under the licence issued by the Excise and Taxation Department. No violation of the Excise policy has been pointed out. No merit. Dismissed. 1.4.2010 ( VINOD K. SHARMA ) 'sp' JUDGE