The legal competence of the Municipal Corporation to remove the handcart without notice as per Section 240 of the Municipal Corporation Act, 1994.

Sham Sunder, J.

1. This Regular Second Appeal is directed against the judgment and decree dated 30.05.2009, rendered by the Additional District Judge, (Fast Track Court), Faridabad, vide which he accepted the appeal against the judgment and decree dated 24.12.2008, rendered by the Court of Civil Judge (Junior Division), Faridabad.

2. The brief facts of the case, are that the plaintiff (now appellant) has been running a small handcart (Rehri) of Chhole Bhatura, 15 x 20 at the site of B.K. Chowk, near Super Bazar Medicines, STD Booth, NIT, Faridabad, fully detailed in the plaint, since 1987, under a valid licence No.7 issued by the defendant (now respondent) on 17.08.1987, on the terms and conditions mentioned therein. It was renewed upto 31.03.1999. It was further stated that the handcart (Rehri) was fixed at a distance of 40-50 feet from the main road. The plaintiff (now appellant) had been depositing the licence fee for running the business at the aforesaid place. It was further stated that the defendant threatened the plaintiff (now appellant) to remove the handcart (Rehri), in question, from the said site, illegally. The officials of the defendant was many a time asked not to do so, but to no avail. On their final refusal, left with no alternative, a suit for permanent injunction was filed.

3. The defendant (now respondent) put in appearance, and contested the suit, by way of filing written statement, wherein, it was pleaded that the suit was not maintainable; and that the plaintiff had neither cause of action nor locus standi to file the suit. It was further pleaded that the plaintiff had approached the Court, by concealment of material facts, and, as such, was not entitled to the relief claimed. It was admitted that the plaintiff was running a small mobile Rehri in NIT, Faridabad. However, the licence of the plaintiff was not renewed after 31.03.1997. It was further stated that this Court had directed the Municipalities and Local Bodies not to allow and get installed mobile Rehri or fixed Rehries, within a distance of 10 feet of the road. It was denied that any licence fee was deposited by the plaintiff. It was further stated that since the licence of the plaintiff was not renewed after 31.03.1997, he was not entitled to the injunction, prayed for.

4. From the pleadings of the parties, the following issues were framed by the trial Court:-

"1- Whether the licence is form-B under Rule 49(c) and under Rule 50 of P.F.A. Rules 1955 and PFA (Pb.) Rules, 1958, for manufacturing and sale of Chhole Bathure etc. that licence is renewed upto 31.3.1999? OPP

2- Whether the plaintiff is entitled for a decree, as prayed for? OPP

3- Whether the plaintiff has no cause of action to file the present suit? OPD

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

5- Whether the plaintiff has no locus standi to file the present suit? OPD

6- Relief."

5. The parties led oral as well as documentary evidence, in support of their case. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the trial Court decreed the suit.

6. Feeling aggrieved, an appeal was preferred by the appellant (defendant), which was accepted by the Additional District Judge (Fast Track Court), Faridabad, vide his judgment and decree dated 30.05.2009.

7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed, by the appellant/plaintiff.

8. I have heard the Counsel for the parties, and have gone through and perused the documents, carefully.

9. The following substantial questions of law, arise, in this appeal, for the determination of this Court:-

"1. Whether the judgment and decree of the first Appellate Court, are based on mis-reading and misappreciation of evidence, resulting into recording of perverse finding that the plaintiff was not entitled to the decree for permanent injunction.?

2. Whether the first Appellate Court fell into a legal error in holding that the