Dismissed

Executive Officer Cum Sectt. Markeet Committee v. Kewal Singh & Anr.

Punjab & Haryana HC1 Mar 2012RSA/870/2011

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration of a shop allotment, the Court held that the omission to serve a notice under Section 31 of the Punjab Agricultural Produce Markets Act did not affect maintainability. The appeal was dismissed as it raised no question of law.

What did the court decide?

The market committee's resolution cancelling the allotment is deemed non-barred; the present appeal is dismissed.

Executive Officer Cum Sectt… — Contract and Commercial Disputes | Punjab & Haryana HC (2012)

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RSA No.870 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.870 of 2011

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Date of Decision: March 01, 2012

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The Executive Officer-cum-Secretary and another

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.......Appellants

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Versus

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Kewal Singh and another

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.......Respondents

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CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA

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Present: Mr.Partap Singh, Advocate for the appellants.

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TEJINDER SINGH DHINDSA, J.

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The defendant-appellants are in second appeal before this

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Court.

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The plaintiff filed a suit praying for a decree for declaration to the effect that the bid given by his son, namely Amrit Lal, on the basis of special attorney dated 22.11.2001 in respect of shop No.104, situated in New Sabji Mandi Ballabgarh be declared as valid and on the basis thereof, the plaintiff be held entitled to the allotment of the shop in question in his name. It was pleaded that defendant-Market Committee, Ballabgarh had advertised to sell four shops by way of public auction. The plaintiff, being a licensee, had participated in the said auction and had authorized his son to deposit the security, to give the bid, to sign the same and to deposit the requisite amount after finalization of the bid on his behalf by way of special power of attorney dated 22.11.2001. The son of the plaintiff participated in

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RSA No.870 of 2011

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the auction upon deposit of Rs.10,000/- towards security in the name of the plaintiff. He gave the highest bid of Rs.21 lacs in respect of Shop No.104 and thereafter even deposited an amount of Rs.5,25,000/- towards 25% of the sale price and even receipt towards such deposit had also been issued. The plaintiff had even been put in possession of the shop in question. The defendants rather than issuing the formal allotment letter had instead cancelled the allotment on the ground that the bid had been given by Amrit Lal, whereas security had been deposited in the name of the plaintiff. The licence of the plaintiff of being a Commission Agent was not being renewed accordingly and, as such, the relief of mandatory injunction had also been sought.

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The suit was contested and the defendants stated that the security amount of Rs.10,000/- had been deposited in the name of Kewal Singh plaintiff for purposes of being eligible to participate in the auction proceedings, but the bid was made by Amrit Lal son of the plaintiff. It was stated that as per the terms and conditions of the auction, any bid was subject to the approval of the Chief Administrator, Haryana State Agricultural Marketing Board and since the bid for the shop in question had been made by the son without any authority, as such, the bid in respect of shop No.104 had been cancelled. Under such circumstances, even 25% amount deposited i.e. Rs.5,25,000/- have been returned by way of cheque dated 18.4.2002 and had been sent through Sub Registrar but the plaintiff had refused to accept the same.

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On the pleadings of the parties, the following issues were framed by the trial Court:

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RSA No.870 of 2011

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Whether the plaintiff is entitled to a decree of declaration, as prayed? OPP

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If issue No.1 is proved, whether the plaintiff is entitled to a decree of mandatory injunction as well as permanent injunction, as prayed for?OPP

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Whether the suit of the plaintiff is not maintainable in the present form?OPD

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Whether the plaintiff has no locus standi and cause of action to file the present suit?OPD

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Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD

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Relief.

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The trial Court decreed the suit of the plaintiff in his favour and directed the defendants to allot shop in question to the plaintiff upon taking the remaining amount as per terms and conditions of the bid. The defendant-appellants filed a civil appeal and vide impugned judgment dated 28.10.2010 passed by the Additional District Judge, Faridabad, the findings of the trial Court have been affirmed and the appeal has been dismissed.

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There is no dispute inter se the parties that it was Amrit Lal son of the plaintiff-respondent who had submitted the highest bid for the shop in question. The auction took place on 22.11.2001. The son of the plaintiffrespondent has been permitted not only to deposit the security amount of Rs.10,000/- but has also been permitted to make the bid and in token of his being the highest bidder, even the deposit of Rs.5,25,000/- i.e. 25% of the sale price, has been accepted against issuance of receipt, Exhibit P2. Inspite of such admitted position of fact, appellant – Market Committee insisted

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that the requisite power of attorney had not been filed by the plaintiffrespondent so as to authorize his son Amrit Lal to do the needful. It has

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RSA No.870 of 2011

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come on record that the plaintiff-respondent had submitted a request before the Courts below to direct the defendant-appellants to produce the original power of attorney which had been duly submitted at the time of auction. Upon the defendant-appellants insisting that no such power of attorney had been filed, as such permission to lead secondary evidence had been allowed. Exhibit P7 is the power of attorney issued on 22.11.2001 and was attested by Shri S.K.Yadav, Notary Public, PW2 on the same day. The concurrent findings have been recorded that no evidence had been led on record by the appellants to prove that the power of attorney, copy of which was Exhibit P7, was a forged document or that the same had been prepared after the conduct of the auction.

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Still further, a finding of fact that had been recorded by both the Courts below is that the possession of the shop in question had also been delivered to the plaintiff-respondent and in pursuant thereto, he had even done the work of a Commission Agent on Shop No.104 and the Market Committee, Ballabgarh had also collected the tax on commission. It has further been noticed that prior to passing of resolution cancelling the allotment in respect of shop No.104 by the Market Committee, no opportunity of hearing had been granted to the plaintiff-respondent.

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I find no infirmity in the findings recorded by both the Courts below in holding the plaintiff-respondent to be a valid allottee of Shop No.104 in pursuance to the highest bid in a public auction.

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Learned counsel would vehemently argue that the plaintiffrespondent was bound in law to serve a notice under Section 31 of the Punjab Agricultural Produce Markets Act, 1961 (hereinafter to be referred

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RSA No.870 of 2011

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as 'the 1961 Act') and no such notice having been served, the suit itself was not maintainable. Even such submission is without any merit. The Market Committee having already taken a decision to cancel the allotment of Shop No.104 and having already passed a resolution dated 19.1.2002 cancelling such allotment in favour of the plaintiff-respondent, the requirement of a notice under Section 31 of the 1961 Act would not have acted as a bar as regards maintainability of the suit.

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For the reasons recorded above, the present second appeal, accordingly, must fail as it does not raise any question of law, much less a substantial question of law.

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The present second appeal is, accordingly, dismissed.

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Appeal dismissed.

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( TEJINDER SINGH DHINDSA ) MARCH 01, 2012 JUDGE SRM

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Note: Whether to be referred to Reporter? Yes/No

Executive Officer Cum Sectt. Markeet Committee v. Kewal Singh & Anr.

Case brief

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Executive Officer Cum Sectt. Markeet Committee v. Kewal Singh & Anr.

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