IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. First Appeal No. 496 of 2001 Himalayan Poorva Sainik Samiti through its Adhyaksha, Sri K.S. Kandwal .. Plaintiff/Appellant. Versus Union of India and 4 others ..Defendants/Respondents. Sri Pankaj Purohit, Advocate for the appellant. Sri Arvind Vashist, A.S.G. for the defendants. Dated: 22-07-2008 Hon’ble B.C. Kandpal, J. This appeal under Section 96 of the C.P.C. has been preferred against the judgment and decree dated 1- 6-1998, passed by the District Judge, Chamoli, in O.S. No. 52/1996, whereby the suit of the plaintiff/appellant was dismissed with cost. 2- The facts, giving rise to this appeal, in short, are that the plaintiff/appellant K.S. Kandwal, is an Ex- Serviceman. He was employed as Subedar Major and Honorary Captain in Indian Army. He has retired from service on 1.12.1992. After his retirement he rendered his services for the welfare of the families of Ex- Servicemen. He is the Adhyaksha of Himalayan Poorva Sanik Samiti (hereinafter called as ‘the Samiti’). The Samiti is registered under the Society Registration Act. The Samiti experienced the advantages of the Canteen named Golden Fish Canteen who works for the welfare of ex-servicemen, and it has the facility of supply the wine and controlled items to the ex-servicemen. The 2 General Officer Commanding, U.P. Area Bareilly, who is also the ex-officio Chairman of Ex-servicemen Welfare Samiti, started correspondence with the plaintiff for running the Golden Fish Canteen at Karanprayag, under the control of Himalayan Poorva Sainik Samiti. In continuation of above, Sri R.S. Verma, Colonel Secretary for Chairman, U.P. Area, Bareilly sent letter dated 18-7- 1995 to the Head Quarter-9, Swatantra Mountain Brigade Group, 56 A.P.O. and directed to contact with the plaintiff and his Samiti in connection with suitable accommodation for Golden Fish Canteen, for obtaining liquor license from District Excise Authority and employment of suitable Ex-servicemen for the Canteen. Again on 29-7-1995 a letter was received by the Samiti from Sri J.P. Joshi, Colonel Adm. Commandant for Station Commander, in which the plaintiff was asked to contact the Admn. Commandant. In oral conservation the plaintiff was given an understanding that the constitution of the Samiti would be as follows:- Chairman- General Officer Commanding, U.P. Area. Deputy Chairman- Deputy General Officer, Commanding, U.P. Area. Members - 1- Commander, Merrut Sub Area, 2- Commander Dehradun, Sub Area 3-Commander Lucknow Sub Area, Secretary- 1 – Colonel ‘Q’ U.P. Area. Treasurer & Secretary- 2 – Colonel ‘A’ U.P. Area. It was also decided that a building for running the canteen be taken on rent for Rs. 3,000/- per month. The rent of the building is being paid by the plaintiff. The plaintiff further pleaded in the plaint that on the other hand, 9( Swatantra) Commandant Brigade Group is running a Golden Fish Canteen at T.C.P. Karanprayag, in which the ex-servicemen have been placed while the J.C.O. Rank Officers are actually playing role in running 3 that canteen. These J.C.Os. have no concern with the welfare of the ex-servicemen. According to the plaint there was an agreement between the plaintiff and the defendants to run the Canteen under the supervision of the plaintiff and Manager was to be posted in the Canteen on the basis of the recommendation of the Samiti and that Manager would be a suitable ex- serviceman. The Manager in the canteen running at T.C.P. Karanprayag was posted without taking the plaintiff in to confidence. The defendants further manipulated the order for investigating the affairs of the Samiti of the plaintiff by the District Administration and a raid was conducted in the canteen of the plaintiff on 10-4-1996. The plaintiff and his employees were abused and were threatened to implicate in the fabricated cases. The plaintiff has further pleaded that the defendants are thus ignoring the welfare of the ex-servicemen by opening the canteen with the name and style Golden Fish Canteen. Thus the present declaratory suit was filed by the plaintiff-appellant with the relief that the decree be passed declaring the Golden Fish Canteen to run by Himalayan Poorva Sainik Samiti under the president- ship of the plaintiff and the defendants be directed to cooperate the plaintiff in running the Golden Fish Canteen. 3- The defendants contested the suit by filing written statement. The defendants admitted the factum of correspondence with regard to opening Canteen at Karanprayag, but alleged that the said Canteen was to be opened under the supervision and control of 9, Mountain Brigade. In the said canteen there was provision of taking the services of ex-servicemen but there was no agreement to take the services of plaintiff in this regard. At Karanprayag the Golden Fish Canteen as per rules is 4 being run in the supervision and control of Army Officers. The selection of the employees has been done by the Board, in which the plaintiff could not find place. The defendants have denied misuse of the canteen for their own benefit. The defendants have alleged that the Canteen is being run at Karanprayag for the welfare of ex-servicemen and it has been opened on the instructions of Army Headquarter. The plaintiff has got no cause of action to file the suit. 4- On the pleadings of parties, the learned District Judge has framed the following issues in the suit:- 1- Whether the Golden Fish Canteen run by the defendants at Karanprayag is illegal?. 2- Whether for opening the U.P. Golden Fish Canteen at Karanprayag, there was an agreement to take building on rent there for two years and monthly rent of Rs. 3,000/- was agreed, and whether the plaintiff is paying the rent of the said building?. 3- Whether the defendants executed an agreement, according to which the Canteen was to be run by plaitiff’s Samiti, Himalayan Poorva Sainik Samiti?. 4- Whether at Karanprayag the Canteen run by defendants, is illegal, due to lack of control of welfare Samiti of Poorva Sainik and due to mismanagement?. 5- Whether the disputed canteen run by the defendants at Karanprayag is working in accordance with the rules?. 6- Relief if any, to which the plaintiff is entitled to get?. 5 5- Parties in support of their cases, adduced evidence. The learned District Judge, after hearing learned counsel for the parties and considering the material on record, dismissed the suit. 6- Feeling aggrieved, the plaintiff/appellant has preferred this appeal before this Court. 7- I have heard learned counsel for the parties and perused the record. 8- Learned counsel for the appellant has submitted that the learned District Judge has committed an error of law in dismissing the suit of the plaintiff without proper consideration of the factual as well as legal aspects of the matter. The judgment and decree passed by the court below is illegal, arbitrary and without application of mind, and as such the same is liable to be set aside. 9- The learned A.S.G. has opposed the submission advanced by the counsel for the appellant and argued that the canteen at Karanprayag is being run in accordance with rules. The learned A.S.G. also submitted that although correspondence was there for opening of the Golden Fish Canteen but the plaintiff’s Samiti did not fulfil the instructions sought by the Department, hence the matter could not be materialized and no agreement was executed. He also contended that the learned District Judge has assessed the evidence on record in right perspective, the legal provisions were rightly interpreted by the trial court and the appeal has no substance. He has further argued that there is no 6 written agreement between the plaintiff and the defendants to run the Golden Fish Canteen. 10- In order to evaluate the submissions of the learned counsel for the parties, it is necessary to go through the finding recorded by the trial Court. The first point which arises for determination in this appeal is as to whether any agreement was executed between the parties in order to run Golden Fish Canteen under the supervision and control of plaintiff’s Samiti or not?. The plaint case is that an agreement was executed between the plaintiff and the defendants according to which the plaintiff’s Samiti had to run the canteen at Karanprayag, but the defendants in their written statement have refuted this contention of the plaintiff. Therefore, the burden lies on the shoulder of the plaintiff to prove the factum that such an agreement was executed. The plaintiff did not file any such agreement nor he got requisitioned the same from the defendants. 11- At the outset it may be stated that had there been any such agreement between the parties, the same either should have been filed by the plaintiff himself or it could have been summoned from the defendant/department. However, the plaintiff in support of his contention has filed letters paper Nos. 33-C and 34-C. Paper No. 33-C is the letter dated 18-7-1995, of Sri R.S. Verma, Colonel Secretary, U.P. Area, Ex-servicemen Welfare Society, Bareilly, Head Quarter, 9 (I) Mountain Brigade, Group C/o 56 APO. This letter reveals that G.O.C. U.P. Area had accorded sanction to open Golden Fish Canteen at Karanprayag and the Head Quarter was requested to make contact with the plaintiff on the subject of (a) suitable accommodation for Golden Fish Canteen keeping in view the security of the canteen; (b) 7 obtaining liquor licence from District Excise Authority and (c) employment of suitable Ex-servicemen for the canteen and the proposal was asked upto 10-8-1995. Another letter paper No. 34-C was sent by Sri J.P. Joshi, Lt. Col. to the plaintiff to give undertaking about the availability of accommodation at Karanprayag and its suitability for running the canteen requiring to furnish the details of number of rooms with measurement and how the facility will be utilized like place for general stores and liquor, sale counter and select stores counter etc ; rent and allied charges acceptable to the owner and period in years up to which present rent will be valid. Besides the above two letters no document was furnished in order to show that in fact there happened any agreement between the parties to run the canteen. These letters simply show that correspondence was made for opening of the canteen. The contention of the plaintiff is that after receipt of the letters house of Smt. Basu Devi and thereafter the house of Smt. Shanti Devi were taken on rent for the Canteen. Receipts of rent exhibits 4 to 10 have also been filed. But the plaintiff did not adduce evidence to show that the directions contained in para-3 of letter paper No. 34-C were observed and thereafter on the recommendation of the department the accommodation was taken on rent. In absence of execution of agreement and without observing the instructions of the department, it cannot be said that there was any agreement between the plaintiff Samiti and the defendants to run the Golden Fish Canteen under the control of plaintiff Samiti. It appears that correspondence was there for opening of the canteen but the plaintiff did not comply the instructions and the deal could not be materialized therefore the canteen was opened by Army Unit having Ex-servicemen in the said canteen. 8 12- Therefore, in view of above discussion and the material available on record, it is held that although correspondence took place between the parties with respect to open Golden Fish Canteen at Karanprayag under the supervision and control of plaintiff’s Samiti, but the matter could not materialize and no agreement was executed. The point, therefore, is decided accordingly. 13- The next question which arise for consideration is as to whether the Golden Fish Canteen run by defendants at Karanprayag is illegal due to lack of control by the ex-servicemen over it and the Golden Fish Canteens can only be run by Ex-servicemen Welfare Association. The allegation of the plaintiff is that the Golden Fish Canteen at Karanprayag is being run by the Army Officers in service, which is against the G.O. dated 27-10-89 paper No. 18-C. The G.O. was issued to the District Magistrates in which directions were issued regarding the supply of wine in the Golden Fish canteens run by Ex-servicemen. The G.O. was not issued by the Army Authority or by Indian Government, and it cannot be interpreted that the canteen should be run by the Ex- servicemen only. In para-2 of the G.O. it has been mentioned that –‘District where no Army Unit Canteen is located can only be considered for issuing the above memorandum for Golden Fish Canteen run by Ex- servicemen Welfare Association’. From the above instruction contained in the said G.O. also it is quite clear that Army Unit Canteen are also located for the welfare of the Ex-servicemen and where no Army Unit Canteen are located Golden Fish Canteen are run by Ex- servicemen Welfare Association. 9 14- The Standard Operating Procedure for U.P. Area Golden Fish Canteens for Ex-servicemen Niyamawali was also filed on record. The following provision pertaining to recruitment of staff has been made in Rule-11 of the said Niyamawali:- “ The staff for running the Uttar Pradesh Area Golden Fish Canteens would be enrolled from the ex- servicemen, as far as possible. There is, therefore, no bar on recruitment of non-ex-servicemen categories, especially where expert knowledge such as in accounts is necessary. It is not obligatory to have all ex-servicemen.’ 15- Sri Chandra Pal Singh Rathore, Director Uttar Pradesh Area Golden Fish Canteen Head Quarter U.P. Area Bareilly Cant has been produced as D.W.1. He has deposed that as per the direction of Army Head Quarter, a canteen cannot be given to any institution or any individual person but it can be given to Army, Navy or Air Force. It has come in evidence that the Canteen being run at Karanprayag has two Army Officers and two ex-servicemen, therefore, it cannot be said that the Canteen is not working for the welfare of the ex- servicemen and it is illegal. Sri Chandra Pal Singh Rathore has filed a copy of the Administrative Order No. 584 of 1973, which is in connection with the running of the canteen by the some Military Units and perusal of this document shows that in para-6 it is clearly mentioned that apart from regular units of Army, Navy and Air Force the other persons are also eligible to run their own Canteens but those persons are mentioned under sub para (a) to (i), which reads as follows:- 10 “Apart from regular units of Army, Navy and Air Force, the following are also eligible for running their own canteens under the existing policy:- (a) para military forces under the operational/administrative control of the Army. (b) GREF units (excluding liquor/beer). (c) NCC units at Group HQ level ( for regular Army staff and entitled NCC personnel). (d) TA units ( for regular Army personnel and TA personnel embodied for service/training). (e) CDA’s staff / establishments (excluding liquor/beer). (f) Sainik Schools ( excluding liquor/ beer). (g) Ordnance Factories (excluding liquor/beer). (h) Embarkation HQS. (i) Establishments under the control of DGI, Ministry of Defence. 16- The aforesaid administrative order clearly indicates that the persons mentioned in the aforesaid sub-paras (a) to (i) are eligible to run the Canteen. 17- So far as the allegation of the plaintiff’s Samiti that the Army Officers of the Canteen at Karanprayag are not taking any interest in the welfare of Ex- servicemen and they are taking undue advantage of the said Canteen, is concerned, although the Adhyaksha of plaintiff Samiti Sri K.S. Kandwal, P.W.1 and Narayan Singh P.W.2, have stated the above facts in their statements, but Sri Chandra Pal Singh Rathore, D.W.1, in his deposition has refuted the allegations and specifically alleged that the canteen is being run in accordance with rules for the welfare of the families of ex- servicemen. D.W.1, is the Director of U.P. Area Golden 11 Fish Canteen Head Quarter U.P. Area Bareilly and is a responsible person. His deposition cannot be discarded. Here it may also be noted that there has not been any such complaint of any ex-servicemen except the interested deposition of plaintiff and his witness about the mismanagement of the canteen being run at Karanprayag, therefore, the allegation of the plaintiff is baseless and is not acceptable in absence of any independent cogent and reliable evidence. Any how, the plaintiff has not been able to establish his case that any agreement was in fact executed between his Samiti and the defendant/department for running the Golden Fish canteen at Karanprayag under the control of Himalayan Poorva Sainik Samiti. The plaintiff has also not been able to establish that the Golden Fish Canteens are run only by the Ex-servicemen Welfare Association and not by the Army Unit. He has further failed to establish that the Golden Fish Canteen run by Army Unit at Karanprayag, in which Ex-servicemen are also participating, is working against the welfare of the families of Ex-servicemen. Therefore, the second point is also decided against the plaintiff/appellant and in favour of the defendants/respondents. 18- In view of above discussion, I do not find any substance in the submissions advanced by the learned counsel for the appellant. I am in total agreement with the findings recorded by the learned District Judge, on various issues and the same are liable to be upheld. 19- Therefore, the appeal lacks merit and is liable to be dismissed. 20- Accordingly, the appeal is dismissed. The impugned judgment and decree dated 1-6-1998 passed 12 by the District Judge, Chamoli in O.S. No. 52 of 1996 is hereby confirmed. (B.C. Kandpal, J.) ISB