Municipal Committee, Mohindergarh & Anr. v. M ehinder

Mohindergarh and its Secretary appellant-defendants (hereinafter to be referred as “the defendant-Committee”) against the impugned judgment and decree dated

2.5.2007, whereby, the trial Court decreed the suit for declaration and permanent injunction, filed by Vikram Singh son of Sohan Lal respondent-plaintiff (hereinafter to be referred as “the plaintiff”) and the impugned judgment and decree dated 1.11.2008, vide which, the Ist Appellate Court has also dismissed their appeal.

2. The compendium of the facts, which need a necessary mention for deciding the present concise controversy, is that the plaintiff is handicapped person. He has taken two shops in dispute on rent from the Committee, in order to earn his livelihood, vide allotment letter dated No.1708 dated 28.10.2000. In pursuance thereof, he deposited a sum of Rs.1 lac (Rs.50,000/- for each shop) as non-refundable security. As per terms of the agreement, he has been regularly making the payment of rent at the rate of Rs.400/- per month to the defendant- Committee.

3. The plaintiff claimed that suddenly, he received a notice bearing No.1582 dated 25.10.2001, with regard to cancellation of the allotment of his two shops. Neither any reason has been mentioned in it, nor any opportunity of hearing Regular Second Appeal No.899 of 2010 2 was provided to the plaintiff in this respect by the defendant-Committee. The defendant-Committee has threatened to take forcible possession of the shops in dispute.

4. Levelling a variety of allegations, in all, according to the plaintiff, he is in possession of the shops in dispute as a tenant and is paying the rent regularly as per the terms and conditions of the agreement, but the defendants have illegally cancelled his lease/tenancy at his back, vide letter dated 25.10.2001 without any basis, which was stated to be illegal and not binding on his rights. On the strength of the aforesaid pleadings, the plaintiff filed the suit for decree of declaration with consequential relief of permanent injunction, in the manner indicated here-in- above.

5. The defendants contested the suit and filed the written statement, inter-alia, admitting that the President of the Committee had allotted two shops to the plaintiff, but claimed that the allotment was not in accordance with rules and the same was made without giving prior notice to the public at large. Some irregularities were found by the Deputy Commissioner in this respect. Concisely, according to the defendants, as the allotment of two shops was not as per the prescribed procedure, therefore, the allotment was rightly cancelled, vide order dated 25.10.2001. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

6. Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiff filed the replication. In the wake of pleadings of the parties, the trial Court framed the following issues for trial:-

1. Whether the notice No.1582 dated 25.10.2001 (wrongly noted as 23.10.2001) issued by the defendant No.2 is null and void on the grounds as mentioned in the plaint?OPP

2. If issue No.1 is proved whether plaintiff is entitled to injunction as prayed for?OPP Regular Second Appeal No.899 of 2010 3

3. Whether the suit is not maintainable?OPD

4. Whether the plaintiff has no locus standi to file the suit?OPD

5. Whether the plaintiff is estopped from filing the suit due to his act and conduct?OPD

6. Relief.

7. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas.

8. The trial Court, on ultimate analysis of the evidence on record, decreed the suit of the plaintiff, vide impugned judgment and decree dated

2.5.2007.

9. Aggrieved by the judgment and decree of the trial Court, the appellant-defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 1.11.2008.

10. The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

11. Having heard the learned counsel for the appellant-defendants, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in this appeal.

12. The solitary argument of the learned counsel for the appellant- defendants that since the Deputy Commissioner found some irregularities in the allotment of the shops in question to the plaintiff by the previous President, so, the allotment was rightly cancelled by the Committee, is not only devoid of merit but misplaced as well. The bare perusal of the enquiry report (Ex.AW2/A) conducted by the SDO (Civil) would reveal that no such irregularities were committed by the previous President of the Committee, with regard to allotment of the shops in question in favour of the plaintiff.

13. It is not a matter of dispute that in the wake of his application (Ex.AW1/A), the shops in question were allotted, vide allotment letter dated Regular Second Appeal No.899 of 2010 4

28.10.2000 to the plaintiff, who is a handicapped person. He has already deposited a sum of R.1 lac (Rs.50,000/- for each shop) as non-refundable security and is regularly paying the rent at the rate of Rs.400/- per month. PW1 Kailash Chand, Clerk of the Committee deposed, on the basis of the record, that these shops were allotted to the plaintiff in handicapped quota on his application (Ex.AW1/A) on

28.10.2000, vide allotment letter (Ex.AW1/B).

14. That means, the plaintiff is in lawful possession as a lessee of the shops in question and he can only be ejected in accordance with law and not otherwise. Admittedly, neither any cogent reasons have been mentioned nor any opportunity of hearing was given to the plaintiff while passing the cancellation order. Thus, the cancellation order is illegal, without jurisdiction and is not binding on the rights of the plaintiff.

15. Moreover, the trial Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the trial Court has recorded a finding of fact that the notice dated 23/25.10.2001 is not binding on the rights of the plaintiff, which is against the provisions of law and was passed without affording any opportunity to him and is null and void. The Ist Appellate Court has also dismissed the appeal of the defendants. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of the well reasoned decision already arrived at by the Courts below, in this regard.

16. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, Regular Second Appeal No.899 of 2010 5 muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Apex Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted in the impugned judgments/decrees of the Courts below, as contemplated under section 100 CPC, in the obtaining circumstances of the instant case .

17. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendants.

18. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) Judge

9.7.2010 AS