CIVIL WRIT PETITION NO.10480 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 19 ,2011 Raja Ram Singh .....Petitioner VERSUS The Chief Administrator, Un ion Territory, Chandigarh and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Sudhir Sharma, Advocate, for the petitioner. Mr. Amar Vivek, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner is a holder of handcart licence. He was allotted rehri parking site No.81, Sector 22-D, Bijwara Market, U.T., Chandigarh. On 2.4.1991, the petitioner was asked to deposit a sum of Rs.3,000/- with Chandigarh Housing Board as earnest money against the allotment of booth to Rehri/Pheriwala in Sector 22-D, Market. The petitioner deposited this amount and entry in this regard was duly made in the register. The petitioner was allocated licence No.1173 and registration No.3269. As per the petitioner, he does not CIVIL WRIT PETITION NO.10480 OF 2009 :{ 2 }: own any commercial site/shop in U.T. Chandigarh, Mohali or Panchkula either in his name or in the name of any of his family members. His total income does not exceed Rs.7,500/- per mensum and he is not suffering from any contiguous disease. The petitioner accordingly claims that he is legally entitled to allotment of a built up booth in Sector 22-D, Rehri Market, Chandigarh. Still the claim of the petitioner was rejected on 7.11.2007, which is termed as illegal. The reasons given for rejection are that at the time of inspection, one Manohar Lal son of Bansi Lal was found doing business of sale of clothes. Sh.Raja Ram, petitioner, was not found working in the Rehri Market. On the basis of this report, the Screening Committee took a view that the benefit of the Scheme can not be passed on to wrong hands and accordingly rejected the claim of the petitioner. It may need a notice that the petitioner had submitted affidavits of various persons, to which the Screening Committee did not give any weight. The petitioner thereafter served a legal notice on 29.11.2007. When no action was taken, the petitioner filed Civil Writ Petition No.3797 of 2008 before this Court. The said writ petition was disposed of with a direction to the respondents to decide the legal notice served by the petitioner. Still, the claim of the petitioner was rejected on 10.3.2009. The petitioner thereafter filed an appeal and revision, which have also been dismissed and has now filed the present writ petition. Earlier the petitioner had filed Civil Writ Petition No. 9010 of 2009, which was got dismissed as withdrawn with liberty to file a fresh petition and accordingly, the present writ petition is the outcome thereof. CIVIL WRIT PETITION NO.10480 OF 2009 :{ 3 }: Respondent-Union Territory has contested the claim in the reply and has raised some preliminary objections also. As per the reply, writ suffers from non-joinder of necessary parties as U.T.Administration has not been impleaded. It is stated that the writ petition contains disputed questions of facts, which can not be adjudicated in exercise of writ jurisdiction. Otherwise, reliance has been placed on the survey report, which is reproduced in the reply and contains the following recital:- “22. Raja Ram Singh s/o Lal Bahadur Singh, HCL- 1173, Regd.3269 The Inspection of site No.81, Rehri Market, Sector 22-B, Chandigarh shows that all the time one Shri Ram Singh son of Shri Tuni Singh was found working on both the sites i.e. 80 and 81 and doing the business of cloth and both the sites are joint, no partition made between these sites. It shows that site stand sublet or sold to one Shri Ram Singh son of Shri Tuni Singh who is presently working at the site.” It is further pointed out that from time to time, the survey/spot verifications were conducted by the Tehsildar and it was found that one Manohar Lal son of Sh.Bansi Lal was found doing business of sale of clothes and petitioner, Raja Ram, was not found working in the Rehri Market. The respondents accordingly have justified their action in rejecting the claim of the petitioner on this ground. While issuing notice of motion, the Court had asked the CIVIL WRIT PETITION NO.10480 OF 2009 :{ 4 }: petitioner to put on record proof by showing bills etc. of any agency/dealer that he had purchased clothes for further sale. This information was sought from the petitioner on 17.7.2009 and order in this regard is as under:- “It is contention of counsel for the petitioner that the petitioner is operating from the site in Rehri market, Sector 22, Chandigarh. He is dealing in clothes. The petitioner is directed to put on record proof, by showing bills etc. that ever he had purchased clothes, for further sale, from any agency/dealer.” Once the petitioner had annexed such documents on record, the Court issued notice of motion and directed that the status-quo be maintained regarding possession of the petitioner. After completion of pleadings, the case came up for hearing on 18.1.2011. The Court noticed the conflicting arguments raised by the parties and also found that there is factual dispute regarding the petitioner having continued to occupy the booth in Rehri Market. Observing that normally such factual controversies may not be opened to be resolved through writ jurisdiction, the Court decided to do so, considering the fact that the petitioner is a lowly placed person, who was granted this booth on compassionate ground. The Court considered it appropriate to ascertain this factual position by detailing a Local Commissioner. The detailed order dated 18.1.2011 passed by the Court is as under:- “During the course of arguments, it transpires that there is a dispute whether the petitioner continues to occupy the CIVIL WRIT PETITION NO.10480 OF 2009 :{ 5 }: booth in the Rehri market, Sector 22-D, Chandigarh. Though normally such factual controversy may not be open to be resolved but considering the fact that the petitioner is a lowly placed person, who has been granted this Booth on compassionate ground, I deem it appropriate to ascertain the factual position by detailing a Local Commissioner. Mr.Naveen Bawa, counsel of this Court, who is present in the Court, is detailed as Local Commissioner to visit and ascertain as to who is in occupation of the Site No.81, Rehri Market, Sector 22-D, Chandigarh. The Local Commissioner would also ascertain, if possible, the period from which the petitioner has been in occupation of this site. The fee of the Local Commissioner is fixed at Rs.8,000/-, which is to be paid by the petitioner and shall be paid prior to his departure. The Local Commissioner may fix the date and time of his visit under intimation to the counsel for the parties. The representative of the Union Territory may also remain present during the inspection. Adjourned to 14.2.2011. Copy of this order be given to the Local Commissioner as well as to the counsel for the parties under the signatures of the Special Secretary of this Court.” In fact, this course was adopted on the asking of the counsel for the respondents, who did not make any objection for CIVIL WRIT PETITION NO.10480 OF 2009 :{ 6 }: ascertaining this factual position. The Local Commissioner accordingly has submitted his report, which was taken on record on 14.2.2011. Finding is that the petitioner is having a booth in the Rehri Market, Sector 22-D, Chandigarh, for many years. The right of the petitioner to get the booth re-allocated, thus, was held to be surviving. The counsel for the respondents, therefore, were asked to have proper instructions. Instead of taking action to re-allocate the booth, the respondents informed the Court that the process of re- allocation or allotment would take long time and the Court may pass any appropriate order. It was then observed that if the petitioner had a right to re- allocation, the same be done immediately and accordingly directed the respondents to pass the orders within two weeks. On 4.5.2011, counsel for the respondents prayed for some more time to comply with the order, which was granted. However, today the counsel for the respondents has stated that the respondents are in the process to impugn the interim direction passed by this Court. The parties were accordingly heard and the writ petition was taken up for final disposal. The only ground to deny the claim of the petitioner is that the petitioner was found not working at the booth. This Court satisfied itself initially before issuing notice of motion, when the petitioner had produced number of bills on record to show that he had been purchasing clothes from various agencies for selling at his booth. Annexures P-27 containing number of bills collectively, would bear testimony to this fact. Once the issue was argued before this Court, CIVIL WRIT PETITION NO.10480 OF 2009 :{ 7 }: the Local Commissioner was detailed primarily on the asking of the counsel for the respondents. The Local Commissioner has found that the petitioner is in continuous possession of the booth from so many years. The basis of this finding is given by the Local Commissioner, which is as under:- “1.Mr.Raja Ram Singh s/o Lal Bahadur Singh petitioner is in occupation of the Site No.81, Rehri Market, Sector 22- D, Chandigarh from many years. That booth is in his possession from date of allotment. I checked his provisional identity card for allotment of Booth and the License No. is HCL-1173 and Registration No.3269 and the date of issuance of the Identity Card is 5.3.1991. He is paying the electricity bill regularly. These bills were shown to me by the petitioner. The latest bill dated 13.9.2010 photo stat copy of which is attached has been shown to me. 2. That I also confirmed the possession of Raja Ram Singh from the other occupants/owners of the adjoining booths. I asked to Ram Raj Singh s/o Daya Deen Singh occupant of Booth No.82, Licence No.1171, President of Market Rajeshwar Pathak who has also given the affidavit in year 2007 in support of the Mr.Raja Ram Singh, Sudesh Goldi, Ex.President, Vijay Kumar s/o Chunni Lal Booth No.68, Kulwant Singh s/o Jaspal Singh Booth No.416, Registration No.2700, Ravinder Singh s/o Late Sh.Ram Gopal Booth No.R-84, Licence No.HL-289 and CIVIL WRIT PETITION NO.10480 OF 2009 :{ 8 }: Jai Parkash Pathak s/o Sudesh Pathak bearing Licence No.1969 about the possession of the Raja Ram Singh in Booth No.81. Every one confirmed that Raja Ram Singh is in possession of the Booth No.81, Rehri Market, Sector 22-D, Chandigarh from many years. 3. That I have orally affirmed the actual position the petitioner is in continuous possession from many years, the year of inception of the Rehri Market. The petitioner in order to substantiate his claim also produced the bills of purchase of material at regular intervals.” Now to contest the right of the petitioner and stand on prestige against lowly placed person, who is running a booth does not speak well of Union Territory Administration. I am of the considered opinion that the petitioner has made out a case for re- allocation of the booth to him and the order, rejecting his claim may not be sustainable in view of the factual position now noticed. The writ petition is, therefore, allowed and impugned order, dated 20.5.2009 (Annexure P-21), 10.3.2009 (Annexure P- 20), order dated 7.11.2007 (Annexure P-19) and order dated 22.4.2008 (Annexure P-23), rejecting the allotment of booth to the petitioner are hereby quashed. The respondents are further directed to consider the case of the petitioner afresh for allotment of booth in terms of public notice dated 31.5.2009 by keeping in view the factual position noticed by the Court. May 19,2011 (RANJIT SINGH ) khurmi JUDGE