RSA No.2259 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2259 of 2008 Date of decision: 22.11.2010 Union of India and others ......Appellant(s) Versus Ram Paul & other ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mrs. Lisa Gill, Advocate for the appellants. Mr. Chetan Mittal, Sr. Advocate with Mr. Lalit Jain, Advocate for the respondent. Rakesh Kumar Garg, J. (Oral) This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court whereby appeal filed by the plaintiff-respondent against the dismissal of the suit by the trial Court was accepted and suit was decreed for declaration to the effect that claim of allotment of built up booth in Section 47-C, Chandigarh was rejected illegally, with a further direction to the appellants to allot built up booth in Section 47-C to the plaintiff-respondent further restraining the appellants to remove the khokha of the plaintiff. As per the averments made in the suit, the plaintiff was running his rehri for selling Ice Cream etc. in Section 47-C, Chandigarh, As per the earlier survey conducted by the appellants, the plaintiff-respondent was found to be doing the aforesaid business and he was also allotted the hawker's licence and thus, he became legally entitled to the allotment of booth to be allotted by the Chandigarh Administration. It was the further RSA No.2259 of 2008 2 case of the plaintiff-respondent that the appellants issued provisional identity card for allotment of booth to him on 22.3.1991. He also deposited a sum of Rs.3,000/- on 30.3.1991 with the Chandigarh Housing Board as earnest money for construction of the booth and the said amount was duly received by the appellants. On 13.12.1995, a survey was conducted by the appellants but by that time he was away to his village to see his ailing mother and as such his Rehri was lying closed and he was marked absent. Subsequently, the appellants invited applications for the allotment of built up booths in Section 47-C, Chandigarh. However, the claim of the plaintiff was rejected by the Screening committee and his case was not recommended for allotment. Feeling aggrieved, the plaintiff also filed an appeal before the Chief Administrator which was dismissed with the observations that his claim be looked into sympathetically. However, the same was rejected on 28.12.1998. His appeal was also dismissed by the Chief Administrator. Hence, the present suit. Upon notice, the appellants filed joint written statement raising various preliminary objections. On merits, the defendants pleaded that the claim was considered and rejected after giving full opportunity to the plaintiff. However, it was admitted that the plaintiff was issued non transferable hawker licence No.560 valid up to 31.3.1990 for selling of ice cream etc. and was given registration No.753 on receipt of requisite charges. It was also admitted that the plaintiff deposited Rs.3,000/-. However, it was stated that since he was not found working at the time of survey, he was found not entitled to the claim. While denying other averments of the case, dismissal of the suit was prayed for. On the basis of the evidence led before it, the trial Court dismissed the suit vide its judgments and decree dated 1.9.2005. RSA No.2259 of 2008 3 Aggrieved from the aforesaid judgment and decree so passed by the trial Court, the plaintiff-respondent filed an appeal which was accepted. While accepting the appeal, the Lower Appellate Court observed as under: “After hearing the respective contentions of both the sides and having gone through the record carefully, it is found that the instant appeal merits acceptance. Concededly, the plaintiff was issued non transferable hawker licence No.560 Ex.P-1 valid up to 31.3.89 for selling of ice cream etc. by the defendants and was given registration No.753 on receipt of requisite charges. The defendants called upon the plaintiff to deposit a sum of Rs.100/- towards registration charges which he deposited vide receipt Ex.P-2. Admittedly, the plaintiff deposited Rs.3,000/- with the Chandigarh Housing Board as earnest money against the construction of booth in different Rehri markets vide written communication Ex.P-5, by way of Bankers cheque No.345120 dated 30.3.91 Ex.P-6. The plaintiff was also issued provisional identity card Ex.P-3 vide memo dated 22.3.1991. Once the defendants had accepted the earnest money of Rs.3,000/- towards the construction of the booth from the plaintiff vide diary No.8586 dated 1.4.1991, by way of Bankers cheque No.345120 dated 30.3.1991 Ex.P-6 favouring the Chairman, Chandigarh Housing Board, as directed by the defendants vide memo dated 22.3.1991 Ex.P4 calling upon the plaintiff to deposit the said amount with the Board, they could RSA No.2259 of 2008 4 not thereafter reject his claim in the year 1995, when his claim for the allotment of such a booth had been accepted as true in the year 1991 by accepting the earnest money. Order Ex.P-10 of the Screening Committee was passed, rejecting the claim of the plaintiff on a cyclostyled performa. No reference to the pleadings of the plaintiff was made therein. The order dated 4.11.1997 Ex.P-12 dismissing the appeal of the plaintiff was bad because it was not a speaking order and did not show on what ground the documents produced by the plaintiff were not found to be sufficient and on what ground the plaintiff was found to be ineligible for the allotment of a booth in Sector 47-C, Chandigarh. Rather the documents produced by the plaintiff showed that he was running his business from the site in Rehri Market, Sector 47-D, Chandigarh. The documents produced by the plaintiff find mention in order Ex.P-13. A perusal of the documents produced by the plaintiff clearly proves the fact that he was continuously running his above said business in Rehri market of Sector 47, Chandigarh since the year 1991 and till the survey of 1995. The plaintiff had successfully explained his absence from the site when the defendants conducted the survey on 13.12.1995, Ex.P-8 medical certificate proved that from 5.12.1995 to 20.12.1995 Smt. Kawal Palti Devi mother of Ram Paul plaintiff was suffering from severe uterine bleeding and was under treatment at her residence in village RSA No.2259 of 2008 5 Kishunipur District Azamgarh (U.P.). The main reason for rejecting the claim the plaintiff is his absence at the time of survey conducted on 13.12.1995. However, the plaintiff has successfully proved by proving medical certificate Ex.P-8 that due to the illness of his mother, he was away to his native village in District Azamgarh in Uttar Pradesh. The shopkeepers are not expected to be present at their khokas/booths/shops at all times and hours. In connection with their business and even for their other affairs, they are forced to be away from their places of business and that does not mean that they have abandoned their places of business or have transferred the same to somebody else. When the plaintiff was found absent from the site of his work on 13.12.1995, no notice was issued to him to explain his absence. It was only when he submitted an application for allotment of a booth in Sector 47-C market that Screening Committee vide its report Ex.P-10 rejected his claim inter alia on the ground that he was not present in the survey conducted in 1995. Concededly, the plaintiff deposited a sum of Rs.3,000/- as earnest money for the construction of his booth vide Bankers cheque Ex.P-6 and at that time, he was found to be occupying a site in the rehri market of Sector 47-D, Chandigarh in lieu of it he was entitled to the allotment of a built up booth in Sector 47-C, Chandigarh. Hence, findings of the learned trial Court on issues No.1 and 2 are reversed in this appeal and issues No.1 and 2 are decided in favour RSA No.2259 of 2008 6 of the plaintiff and against the defendants. Consequently, the appeal filed by the plaintiff succeeds and the same is hereby accepted and impugned judgment and decree of the learned trial Court are hereby set aside and suit filed by the plaintiff for declaration to the effect that the claim of the plaintiff which was rejected for allotment of built up booth in Sector 47-C, Chandigarh was illegal, null and void and further a direction is ordered to be issued to be defendants to allot built up booth in Sector 47-C, Chandigarh in lieu of Sector 47-D, Chandigarh to the plaintiff and defendants are restrained from forcibly removing the khokha of the plaintiff from the Rehri market. Decree sheet be prepared accordingly. Record of the trial Court be sent back immediately and appeal file be consigned to the records after due compilation.“ Feeling aggrieved from the aforesaid judgment and decree of the Lower Appellate Court, the defendant-appellants have filed the instant appeal submitting that the following substantial questions of law are involved in the present appeal: “(i) Whether the judgment and decree dated 24.4.2007 passed by the learned Additional District Judge, Chandigarh is liable to be set-aside being absolutely illegal and arbitrary and opposed to the evidence on record and the judgment dated 1.9.2005 passed by the learned Civil Judge (Junior Division), Chandigarh, deserves to be upheld? (ii) Whether there has been misreading of evidence RSA No.2259 of 2008 7 and a reliance wrongly placed on documents which do not stand proved by the learned Additional District Judge, Chandigarh leading to a perverse and incorrect finding?” In support of this appeal, learned counsel for the appellants has vehemently argued that the Lower Appellate Court has grossly erred in returning a finding that the plaintiff-respondent had explained his absence from the site when the survey was conducted on 13.12.1995 and the aforesaid finding was against the evidence on record. Moreover, his claim was considered and rejected by the competent Authority and therefore, the judgment and decree of the Lower Appellate Court, which suffers from perversity, is liable to be set aside. It may be relevant to point out that on 28.7.2008, this Court had noticed some facts. The aforesaid order reads as follows: “This is defendant's regular second appeal against judgment of reversal. Contention of the learned counsel is that at the time of survey on 13.12.1995, the plaintiff not being present and hence was not considered for allotment of a booth. Learned counsel, however, prays for time to show from the record that there was some kind of publication in the area asking the rehri owners to be present for joining the survey. I have taken note of the fact that the plaintiff had a hawker licence valid upto 31.3.1990 for selling ice cream. He was registered at Sr.No.753 on receipt of requisite charges. The plaintiff also deposited Rs.3,000/- with Chandigarh Housing Board as earnest money for RSA No.2259 of 2008 8 construction of his booth vide written communication Ex.P-5 by way of bankers cheque Ex.P-6. He was also issued provisional identity card Ex.P-3 vide memo dated 22.3.1991. Despite this documentary evidence, the case of the plaintiff had been rejected by the defendants on the ground that the was not present at the time of survey. Explanation given by the plaintiff is that his mother was ailing and, therefore, he had gone to attend her in U.P. Medical certificate has been produced on record. Adjourned to 30.7.2008 to enable the counsel to produce the record as indicated above.” Thereafter, vide order dated 30.7.2008, this Court appointed a Local Commissioner to submit a report as to whether plaintiff-respondent No.1 was doing the business at the site. The aforesaid Local Commissioner submitted his report according to which plaintiff-respondent No.1 was found running a juice Rehri for the last 7-8 years in the Kacchi Rehri Market nearby main Rehri Market, Sector 47, Chandigarh. In view of the aforesaid facts which establishes that the plaintiff-respondent was running a Rehri for selling ice-cream etc.for the last many years and he was granted a hawker's licence and also that he was found running his business in the earlier survey and it cannot be said that only because he was found absent on 13.12.1995 i.e. the day of survey, that he was not doing the business. Moreover the Lower Appellate Court on appreciation of evidence has recorded a finding of fact which cannot be said to be a perverse finding in view of the facts established on record and as noticed by this Court in its various orders. RSA No.2259 of 2008 9 No substantial question of law arises in this appeal. Dismissed. November 22, 2010 (RAKESH KUMAR GARG) ps JUDGE