Dismissed

Bhaan Chand v. Thr Director Food and Ors.

Himachal Pradesh HC2 Dec 2021RSA/106/2020

Case brief

AI extract

What is this about?

This court dismissed the second appeal regarding a suit challenging the allotment of a ration shop. The court held the lower courts correctly dismissed the suit as not maintainable due to the appellant's failure to serve notice as required under Section 76 of the Himachal Pradesh Cooperative Societies Act, 1968.

What did the court decide?

The appeal was dismissed as the suit was rightly dismissed for non-compliance of Section 76 of the 1968 Act.

Bhaan Chand Vs Thr Director Food and Ors. — Cooperative Societies | Himachal Pradesh HC (2021)

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IN THE HIGH COURT OF HIMACHAL PRADESH,

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SHIMLA

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ON THE 2^ND DAY OF DECEMBER, 2021

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BEFORE

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HON’BLE MR. JUSTICE AJAY MOHAN GOEL

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REGULAR SECOND APPEAL No. 106 OF 2020

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Between:

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BHAAN CHAND, S/O SH. CHARU CHAND, PRESENTLY WORKING AS SECRETARY, CO-OPERATIVE MULTI-PURPOSE SOCIETY (CMP) KILLAR, TEHSIL PANGI, DISTRICT CHAMBA, H.P.

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….APPELLANT.

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(BY MR. R.K. SHARMA, SENIOR ADVOCATE, WITH MR. ARUN KUMAR, ADVOCATE, FOR THE APPELLANT)

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AND

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1. THE DIRECTOR FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS, HIMACHAL PRADESH, SHIMLA.

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2. THE DIRECTOR CONTROLLER FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS, PANGI AT KILLAR, DISTRICT CHAMBA, H.P.

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3. THE DEPUTY COMMISSIONER, CHAMBA, DISTRICT CHAMBA, H.P.

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4. SH. K.S. CHOWDHARY, SUB DIVISIONAL OFFICER (C), PANGI, DISTRICT CHAMBA, H.P.

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5. SH. PRITHI SINGH, PARENTAGE NOT KNOWN, PRESIDENT, THE PANGI TEHSIL CO-OPERATIVE MARKETING SUPPLY UNION LIMITED,

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KILLAR, TEHSIL PANGI, DISTRICT CHAMBA, HP.

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….RESPONDENTS.

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(BY MR. ADARSH SHARMA, MR. SUMESH RAJ AND MR. SANJEEV SOOD, ADDITIONAL ADVOCATES GENERAL WITH MR. KAMAL KANT CHANDEL, DEPUTY ADVOCATE GENERAL, FOR RESPONDENTS NO. 1 TO 4.

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BY MR. K.B. KHAJURIA, ADVOCATE, FOR RESPONDENT NO.5)

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Whether approved for reporting ?¹ No

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This appeal is coming on for admission this day, the Court

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delivered the following:

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O R D E R

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By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned Civil Judge, Chamba, District Chamba, H.P., in Civil Suit No. 1230 of 2013, titled as Bhan Chand vs. The Director Food, Civil Supplies and Consumer Affairs, Himachal Pradesh, Shimla, decided on 31.08.2018, vide which a suit filed by the present appellant for declaration, permanent prohibitory injunction and mandatory injunction stood dismissed, as well as against the judgment and decree passed in appeal by the Court of learned District Judge, in Civil Appeal No. 27 of 2018, titled as Bhaan Chand vs. The Director Food, Civil Supplies and Consumer Affairs, Himachal Pradesh, decided on 1.11.2019, vide which the appeal preferred by the appellant in the revision passed by the learned Trial Court was

dismissed.

The suit was filed by the plaintiff feeling aggrieved by issuance of office order dated 23.11.2010, vide which a Ration Depot under Public Distribution System allotted to the plaintiff allegedly was handed over/allotted to defendant No.4, under political pressure and without complying with the principal of natural justice.

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The suit was resisted by the defendants, inter-alia on the ground that the same was bad for non-compliance of the provisions of Section 76 of the Himachal Pradesh Cooperative Societies Act, 1968 and further that the Sub Divisional Magistrate, Killar at Pangi who was exercising the powers of Sub Divisional Officer in executing the work under the provisions of the Cooperative Societies Act has passed an order dated 23.11.2010, in terms whereof Pangi Tehsil Cooperative Marketing and Supply Unit Limited at Killar was declared as a retail fair price shop for Millar area employees for the purpose of the distribution of specified items to the ration card holders. According to the defendants, this order was passed in view of resolution dated 10.11.2009, passed by the Managing Committee of Pangi Tehsil Union and it was denied that the decision was taken on account of a political pressure as alleged.

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On the basis of the pleadings of the parties learned

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Trial Court framed the following issues:-

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Whether office order dated 23.11.2010, issued by defendant No.4, is illegal? OPP.

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2. Whether defendants No.1 and 2 are liable to be restrained from issuing permit in favour of defendant No.5? OPP.

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3. Whether the plaintiff is entitled for mandatory injunction for issuance of permit in his favour as prayed for? OPP.

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4. Whether this suit is not maintainable in the present form? OPD.

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

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6. Whether the plaintiff has no cause of action to file this suit? OPD.

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7. Whether the suit is bad for non-service of notice under Section 76 of the HP Cooperative Societies Act, 1968, as alleged? OPD.

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8. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD.

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9. Relief.

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On the strength of the evidence which was led by the parties concerned as well as the pleadings, the issues were

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decided as under:-

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Issue No.1 : No. Issue No.2 : No. Issue No.3 : No. Issue No.4 : No. Issue No.5 : No. Issue No.6 : No. Issue No.7 : Yes. Issue No.8 : No. Relief : Suit is dismissed as per operative part of the judgment.

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The suit was dismissed by the learned Trial Court by deciding issues No.1 to 3 against the plaintiff and issue No.7 in

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favour of the defendant. The findings, so returned by the learned Tribunal were upheld by the learned Appellate Court.

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There are concurrent findings returned by both the learned Courts below to the effect that the suit filed by the plaintiff was not maintainable in view of the provisions of Section 76 of the HP Cooperative Societies Act, 1968.

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I have heard learned counsel for the parties as well as learned Additional Advocate General, for the State.

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A careful perusal of the judgments passed by both the Courts below demonstrates that these findings are borne out from the record, as there is nothing on record to suggest that any Notice, as is envisaged under Section 76 of the 1968 Act, was indeed issued by the plaintiff to the respondent especially respondent No.5 before initiating the suit.

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This defect being incurable, this Court is of the considered view that the judgments and decrees passed by the learned Courts below vide which the suit has been dismissed as not maintainable for want of the compliance of the Section 76 of the 1968 Act, call for no interference. It is pertinent to observe at this stage that while deciding a lis , may be a suit, the Court has to take into consideration the maintainability of the lis as well as the justiciability of the lis . If a proceeding is not maintainable then the Court is not supposed to go into the justiciability of the same. This Court is making of observation for the reasons that when both the learned Courts below came to the conclusion and rightly so that

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the suit filed by the plaintiff was hit by the provisions of Section 76 of the Cooperative Societies Act, 1968 and the suit was not maintainable then this Court is of the considered view that learned Courts below should have had refrained from for making observations on the merits of the case.

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Be that as it may, as this Court does not finds any substantial question of law involved in this appeal as the suit filed by the plaintiff was rightly dismissed for want of the fulfillment of the requirement of Section 76 of the 1968 Act, this appeal being devoid of any merit is dismissed. No order as to costs. Pending miscellaneous applications, if any, stand disposed of.

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(Ajay Mohan Goel) Judge

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December 2, 2021 (vinod)

Bhaan Chand v. Thr Director Food and Ors.

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Bhaan Chand v. Thr Director Food and Ors.

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