Agriculture Produce Market Committee - Gondal & Ors V. Shri Gridharbhai Ramji
Bhai Chhaniyara & Ors  INSC 503 (5 May 1997)
RAMASWAMY, D.P. WADHWA
O R D
E R Leave granted.
for intervention is allowed.
have heard the learned counsel for both sides.
appeal, by special leave, arises from the judgment of the High Court of Gujarat
at Ahmedabad, made on January
15, 1997 in Civil
admitted facts are sufficient for the disposal of this case. The Market
Committee was constituted under the provisions of the Gujarat Agricultural
Produced Markets Act, 1963 (for short, the Act). Under the Act, the Market
Committee is under the statutory obligation to declare the notified market area
for the purpose of regulating the purchase and sale of notified agricultural
produce within the notified market and to establish it. As a facet thereof,
advertisement has been published inviting offers from the interested persons
for allotment of shops in new market yard vide notification dated November 23, 1991. The existing shop holder were
informed that if they were interested to surrender the shops in the existing
market area, they would be granted shop in the new market yard. In lieu
thereof, they are required to pay the value of the shop equal to 7 year' capitalised
rent. They are designated as "shop for shop category". For others it
is designated as A type shops and B type shops. For A type shops they have
tentatively fixed the price at Rs. 2.55 Lakhs and for B type shops Rs.2.33 lakhs
been fixed. After the advertisement so made, respondents No.1 and 2 filed suit
for perpetual injunction in a representative capacity under Order I, Rule 8,
CPC restraining the Market Committee from making allotment of the shop and ad
interim injunction under Order XXXIX, Rule, CPC was sought for and was granted
by the trial Court. On appeal, it was confirmed by High Court with a further
rider with which we deal at a later stage. Thus this appeal by special leave.
primary question that arises for consideration is whether the respondents have
any right to be enforced by way of injunction ? Part III of the Specific Relief
Act, 1963 deals in that behalf by way of preventive relief. Section 36
postulates that "[P]reventive relief is granted at the discretion of the
court by injunction, temporary or perpetual." Temporary or perpetual
injunction are regulated by Section 37, which read as under :
Temporary and perpetual injunctions. - (1) Temporary injunctions are such are
to continue until a specified time, or until the further order of the court,
and they may be granted at any stage of a suit, and are regulated by the Code
of Civil Procedure, 1908 (5 of 1908) (2) A perpetual injunction can only be
granted by the decree made at the hearing and upon the merits of the suit; the
defendant is thereby perpetually enjoined from the assertion of a right, or
from the commission of an act, which would be contrary to the right of the
plaintiff." It is seen that the respondents do not have at present any
concluded right to seek for enforcement against the Market Committee. At best,
they have got a right to apply for and seek allotment in respect of those who
are governed by the second category, namely, A type and B type shops. We are
not concerned in this case with the first category, viz., shop for shop because
they are not seeking any relief by way of perpetual or temporary injunction in
the respondents are not having any concluded right as at present, the Court has
not applied its mind to consider what would be the right which is claimed to be
High Court has further proceeded on the premise that they have a right, without
applying its mind; it has stated that the right is sought to be regulated by
injunction, without looking into the above provisions of the Act. The trial
Court has stated as under:
Temporary injunction against he defendant no.1 their servants, agents etc. is
hereby granted restraining them in making allotment of any shop on premium of Rs.
2,55,000/- and Rs.2,30,000/- respectively for `A' type and `B' type shops are
concerned (this is based on XXVIII (2) G.L.R. 214).
interim injunction relates so far as pltfs. and other meaning thereby 81
persons and subject to decision of High Court for 146 persons on record are
concerned, and it shall not effect to those allottees whom shops are allotted
by draw previously held if any and to those whom allotment is made otherwise
than draw system.
Defendant no.1 to frame legal and reasonable conditions for the allotment of
shop and thereafter defendant no.1 is allowed to make allotment of shops in ONE
group consisting of plaintiffs and persons on record and other in order to
prevent fragmentation of group.
Subject to the decision of Hon'ble High Court in regard to 146 persons in Civil
Revision Application No.1646/96, deft. no.1 shall protect right.
order to avail opportunity to obtain shops in new market yard to plaintiff and
other, and in other to avail defendant no.1 to repay loan and interest and to
avail financial sources to defendant no.1, temporary injuction till the final
disposal of the suit is further granted as under:- (i) All plaintiff and other
persons on record have raised contention and dispute about `A' type and `B'
type shops in new market yard.
subject to the final determination of price of such each type of shop.
Plaintiff and others on record subject to decision of necessary party by High
Court are afforded an opportunity and directed to participate in draw for the
allotment of each type of shop.
For this plaintiff and other persons on record who want to participate in
allotment of the shop shall make payment of price at this stage nor more than Rs.
1,17,000/- for `A' type of shop and Rs. 1,06,200/- for `B' type of shop; for
this defendant no.1 shall afford facility of installment as availed to other allottees.
Plaintiffs and other persons to take note that above payment of Rs. 1,17,000/-
and Rs. 1,06,200/- is subject to the final determination of the price that
would be decided by the Court after recording evidence and in final judgment of
the suit." The High Court has stated in the order as if there is a
concluded right between the parties. Order XXXIX, Rule 2, CPC postulates that
"in any suit for restraining the defendant from committing a breach of
contract or their injury of any kind, whether compensation is claimed in the
suit or not, the plaintiff may, at any time after the commencement of the suit,
and either before or after judgment, apply to the Court for a temporary injuction
to restrain the defendant from committing the breach of contract or injury
complained of, or any breach of contract or injury of a like kind arising out
of the same contract or relating to the same property or right." As
pointed out earlier, since the right of the respondents is still in embryo even
Order XXXIX, Rule 2, CPC is inapplicable and the enforcement thereof is also
unthinkable. The High Court has further enlarged the scope of the relief which
was not even sought for in trial. The High Court observed as under:
the learned Advocates appearing for the respective parties at length for the
purpose of interim relief. Considering the dispute involved in the case
regarding the premium of A-Type and B-Type shops/godowns, which are being
constructed by the applicants, the balance is required to be struck by way of
granting ad- interim relief. According to the applicants Rs. 2,55,000/- for A-
Type shop/godown and Rs. 2,30,000/- for B-Type shop/godown is the just and
proper price. However, the learned trial judge has fixed the price at Rs.
1,17,000/- for A-Type and Rs. 1,06,200/- for B-Type on the basis of the
material produced before him, (which is the subject matter of consideration in
the Appeal From order) and, in any case, the same cannot be faulted with at
this stage as the correctness thereof would be decided in the appeal and, if
that it stayed, it would amount to allowing the appeal at this stage.
the fact that the applicants have already allotted 250 shops-cum-godowns prior
to the passing of the impugned order, as can be seen from the affidavit filed
in this Civil Application by the applications, coupled with the fact that the
prices at the with the fact that the price at the rate of Rs. 2,55,000/- for
A-Type and Rs. 2,30,000/- for B-Type have been fixed, and as the learned trial
Judge has directed the suit to be disposed of before March, 1997 wherein the
exact price of the shops-cum-godowns will be determined, it will be just, fit
and expedient that the following ad-interim order is passed to meet with the
ends of justice.
Till the hearing and final disposal of the suit, the applicants will collect
the amount at the rate of Rs. 1,17,000/- for A-Type and Rs. 1,06,000/- for B-
Type shop-cum-godown from the allottees and the respondent- plaintiff before
making allotment of any shop-godown to them
allottees as well as the respondent-plaintiff will make the payment, as stated
above, at the time of handing over possession of the shop/godown to them.
applicant, as far as possible, will accommodate all the respondent-plaintiff,
provided they agree and pay Rs. 1,17,000/- for A- Type and Rs. 1,06,000/- for
B-Type shop-godown for the time being, and will not allot any shop/down to any
other person, over and above 250 allottees.
Since this being an ad-interim order, it is made clear to all the allottees,
including the respondent-plaintiff, that they will have to abide by the
decision in the suit. In other words, if the trial court ultimately decides in favour
of the applicants regarding the fixation of the prices of the shop/godown, in
that event, the allottees as well as the respondent-plaintiff will have to pay
additional amount forthwith failing which they will be unable to be
evicted." Thus, we Ho that the High Court has committed not only manifest
error of law, but crossed the limitation of Order 43 Rule 1 in granting the
appeal is accordingly allowed. the order of the court below stand set aside.
However, the trial Court is directed to dispose of the suit as expeditiously as
possible. It is open to the appellants to apply for consideration of allotment
of the shops, if they have not already applied for. No costs.