IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2083 of 2007 Date of Decision : August 19, 2009 Vimal Kumar ....Appellant Versus Union of India and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. Sanjeeva Gupta, Advocate for the appellant. None for respondent No.1. Mr. K.K. Gupta, Advocate for respondents No. 2 to 4. Ms. Deepali Puri, Advocate for respondent No.5. T.P.S. MANN, J. Suit filed by the plaintiff-appellant for declaration and mandatory injunction was dismissed by Civil Judge (Junior Division), Chandigarh on 17.9.2002. Aggrieved of the same, the plaintiff filed the first appeal, which was also dismissed by Additional District Judge, Chandigarh on 26.4.2007. He is now before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. According to the plaintiff, he was a member of Sadar Bazaar Union, Sector 19, Chandigarh and running the business of readymade garments. He was allotted Hawker Licence No.1683 and also having registration No.2170. He has been paying the licence fee regularly. In the year 1991, the Chandigarh Administration floated a scheme for allotment R.S.A. No.2083 of 2007 -2- of constructed booths vide notification dated 7.3.1991. As per the rules, a person holding a valid Handcart licence on 31.12.1988 or one holding a valid hawker licence besides a driving licence and doing his business in Rehri Market was eligible for allotment of a booth. Under the earlier Scheme of 1989 for regulation of hawkers in the city, he had deposited Rs.100/- as registration fee on 13.11.1990 and another amount of Rs.3,000/- by bank draft in favour of Chairman, Chandigarh Housing Board as earnest money pursuant to letter dated 15.3.1991 issued by the Estate Officer, U.T., Chandigarh. A fire broke out in the Rehri Market of Sector 19-C, Chandigarh on 9.4.1993 and the Rehri and the belongings of the plaintiff were reduced to ashes. The spot was visited by an officer of the Chandigarh Administration, pursuant to which the Administration decided to rehabilitate the affected persons by allotting them booths. A list of eligible persons for allotment of booths and distribution of the relief was to be drawn by the Estate Officer. The plaintiff had participated in the spot survey conducted on 11.4.1993. He visited the Deputy Commissioner's office and Estate Officer in the months of September/October, 1993 with all the documents and requested them to consider his case for allotment of a booth, being a fire victim. However, no order was passed by the Estate Officer. On the other hand, booths were allotted to similarly situated persons. The survey conducted by the Estate Officer on 11.4.1993 was a farce. Accordingly, he prayed for declaration that he be declared a victim of the fire incident which took place on April 9, 1993 in Rehri Market, Sector 19, Chandigarh. He also sought relief of mandatory injunction R.S.A. No.2083 of 2007 -3- requiring the defendants to allot a built up booth in the said Rehri Market. Injunction was also sought to restrain the defendants from forcibly evicting him the site of his business. In their written statement, defendants No.1 to 4 averred that in the year 1991 a scheme was floated by the Chandigarh Administration for allotment of the booths. Anyone, who was holding a valid Handcart/Hawker licence, driving licence and not owning a commercial site shop in Mohali or Panchkula, besides not suffering from any contagious disease, was eligible for allotment of booth. On 9.4.1993, a fire broke out in the Rehri Market of Sector 19, Chandigarh. A high level meeting was held on 10.4.1993, wherein it was decided that all the affected persons be allotted bare sites in the existing Rehri Market. A spot verification of all the affected persons was carried out on 11.4.1993 under the supervision of Assistant Estate Officer, Sub Divisional Magistrate, Tehsildar (Enforcement), Tehsildar (Colonies), Sub Divisional Officer (Buildings) and in the presence of the affected persons and their representatives. After the survey was conducted, a general meeting with the members of the Rehri Market was held and each and every case was scrutinized. On 11.4.1993 itself, tentative list of all the applicants on the basis of spot verification and preliminary enquiries was displayed at Rehri Market for inviting objections and claims from general public. A Screening Committee was constituted under the chairmanship of Sub Divisional Magistrate (East) to hear objections. The objections and claims were heard in the office of District Education Officer from 28.4.1993 to R.S.A. No.2083 of 2007 -4- 30.4.1993. Finally, the proceedings of the Committee were approved by the Advisor to the Administrator and all the persons recommended by the Committee were allotted booths. 168 persons, whose claims were rejected, again represented and they were heard by the Estate Officer from 28.8.1993 to 11.11.1993 and vide decision of the Estate Officer dated 11.4.1994, 35 more persons were found eligible and were allotted booths. It was alleged that the genuine claims were accommodated. The plaintiff had not worked in the Rehri Market, Sector 19, Chandigarh at the time of fire incident nor did he file any claim within the stipulated period before the Screening Committee against the tentative list of the fire victims. No representation was made by him to the Estate Officer. It was, however, admitted that the plaintiff had been issued Handcart licence. His registration was also admitted. However, it was alleged that the plaintiff never approached the administration for allotment of the booth and during the survey/spot verification on 11.4.1993, the form submitted by him was rejected. Accordingly, it was prayed that the suit be dismissed. Both the learned Courts below held that the plaintiff failed to establish that he was running any business in the Rehri Market of Sector 19, Chandigarh at the time of fire incident. Therefore, he was not entitled to the relief of declaration and injunction as prayed for by him. In the present suit, the plaintiff-appellant had sought allotment of a booth, being a victim of fire incident which occurred on 9.4.1993. In order to seek the necessary relief, the plaintiff had to establish that as on 9.4.1993, he had a valid Hawker licence. Copy of the Hawker licence is on R.S.A. No.2083 of 2007 -5- the record as Ex.PA. This licence was valid upto 31.3.1991. The plaintiff did not produce any evidence to establish that he had applied for the renewal of the said licence and the renewal was duly granted. The plaintiff had admitted that he was once challaned for running a Rehri in an unauthorised place without any licence. The survey was conducted by duly constituted committee on 11.4.1993 in the presence of all the affected persons. The plaintiff admitted that his name was not included in the tentative list displayed at the spot and the claim thereafter submitted by him was considered and rejected by the Screening Committee. He admitted that he was heard by the Screening Committee but thereafter he never made any representation to the administration regarding rejection of his claim. Though, the plaintiff claimed that he was present at the time of survey yet PW4 Raj Kumar stated that the plaintiff was not present at the relevant time as he was out of station. He also admitted that the claim of the plaintiff was rejected by the Committee on the basis of the survey conducted. The plaintiff had tried to make capital out of the statement recorded by the police on 9.4.1993 under Section 161 Cr.P.C. However, no record has been placed on the file to establish that any recovery of the burnt articles belonging to him was made at the spot by the police. He did not bring any documentary evidence on record to show that he actually suffered loss in the fire and was actually working in the Rehri market. It is for that reason that the name of the plaintiff was not found in the survey conducted at the spot and the Screening Committee finding no worth in his R.S.A. No.2083 of 2007 -6- claim. He also did not approach the administration against non- inclusion of his name in the list of fire victims, despite the fact that a notice was displayed at the spot requiring the aggrieved person to file his objections on or before 17.4.1993. Inspite of his name not being included in the list, the plaintiff did not make any such representation. The plaintiff also made a last ditch effort to establish that he was carrying on business in the Rehri Market at the time of fire incident by referring to sezuire memo. Ex.P8 but even in the said memo., the plaintiff was mentioned to be carrying on his business not inside but outside the Rehri Market. In view of the above, the concurrent findings of facts arrived at by the learned Courts below in non-suiting the plaintiff do not deserve to be interfered with and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as framed by the appellant, arises for determination. Resultantly, the appeal is dismissed. However, the dismissal of the suit shall not have any effect on the application already submitted by the plaintiff for allotment of booth as per 1991 Scheme. ( T.P.S. MANN ) August 19, 2009 JUDGE satish R.S.A. No.2083 of 2007 -7-