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The Agricultural Produce Market Committee, Sholapur Vs. Pantappa Sayanna Vangari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 697 and 698 to 701 of 1967
Judge
Reported inAIR1973Bom348; (1973)75BOMLR503; 1974MhLJ356
ActsBombay Agricultural Produce Markets Act, 1939 - Sections 4(2) and 20; Bombay Agricultural Produce Markets Rules, 1941 - Rule 65; Code of Civil Procedure (CPC), 1908 - Sections 9
AppellantThe Agricultural Produce Market Committee, Sholapur
RespondentPantappa Sayanna Vangari
Appellant AdvocateU.R. Lalit, Adv.
Respondent AdvocateK.H. Abhyankar, Adv.
Excerpt:
a) the case debated on the maintainability of the suit filed for recovery of license fees after the traders were prosecuted and convicted for trading without obtaining license - the court held that the civil suit for the recovery of licence fees was maintainable - the general principle of implied exclusion of the jurisdiction of the civil courts could not bar such a suit ; b) the case discussed the exclusion of the jurisdiction of the civil courts under section 9 of the civil procedure code, 1908 - it was held that the exclusion of jurisdiction of the civil courts could not be inferred until fulfilment of certain conditions - - the market act was passed and the market committees were established for the better regulation of buying and selling of agricultural produce and, therefore,.....order1. these five applications in revision under section 115 of the code of civil procedure, are filed by the agricultural produce market committee, sholapur, constituted under the bombay agricultural produce markets act, 1939, and now governed by the maharashtra agricultural produce marketing (regulations) act, 1963, and will be hereinafter referred to as 'the market committee'. the market committee filed five suits, from which the above revisions arise, against five traders of sholapur in august, 1965, claiming to recover from each of them rs. 100/- as licence-fees, or in the alternative, as damages with interest at 12 p. c. p. a. as the defendants traded in the yards of the market committee without obtaining respectively a licence during the period from september 1, 1963 to august 31,.....
Judgment:
ORDER

1. These five applications in revision under Section 115 of the Code of Civil Procedure, are filed by the Agricultural Produce Market Committee, Sholapur, constituted under the Bombay Agricultural Produce Markets Act, 1939, and now governed by the Maharashtra Agricultural Produce Marketing (Regulations) Act, 1963, and will be hereinafter referred to as 'the Market Committee'. The Market Committee filed five suits, from which the above revisions arise, against five traders of Sholapur in August, 1965, claiming to recover from each of them Rs. 100/- as licence-fees, or in the alternative, as damages with interest at 12 p. c. p. a. as the defendants traded in the yards of the Market Committee without obtaining respectively a licence during the period from September 1, 1963 to August 31, 1964.

2. It was alleged in the plaint, that all the defendants in five suits, who are dealing in the agricultural produce as defined by the Bombay Agricultural Produce Markets Act, 1939, within the market area as traders, were purchasing and selling agricultural produce in the market yard, and hence they were bound to obtain a licence after paying licence-fees to the Market Committee, as laid down by Sections 4, 5-A and 20 of the Bombay Agricultural Produce Markets Act, 1939 and Rule 65 (7) of the Bombay Agricultural Produce Market Rules, 1941. The plaintiff Market Committee further alleged that in the year 1963-64, without obtaining licences required under the Act and the Rules, the respective defendants carried on the trade in the market yard in the agricultural produce. On January 30, 1964, a notice was sent to each of them to obtain necessary licence. Ignoring the said notice and in violation of the law, the defendants continued that trade in the market-yard. Hence the Market Committee prosecuted them in respect of the transactions of trade done by each of the traders and they were convicted on May 13, 1965 under Section 4 (2), read with Section 20, Rule 65 (7) framed under the Bombay Agricultural Produce Markets Act, 1939, and sentenced to pay a fine of Rs. 15/- each, or in default, to suffer simple imprisonment for 7 days.

3. The plaintiff Market Committee submitted that the Market Committee had a right to recover from every trader, buying or selling agricultural produce within the market area or yard of the Market Committee as licence-fees Rs. 100/- under the Marketing Act, and further that as the defendants traded without paying the licence-fees, the Market Committee was entitled to recover the licence fees as damages. In spite of this and notwithstanding the conviction of the defendants, the defendants did not care to pay the licence fees for the year 1963-64. Hence a suit was filed for recovery of licence fees from each of the defendants.

4. The suit was resisted by the defendants contending, inter alia, that the rules under which the licence fees were claimed were ultra vires and that the suit was not tenable in the Civil Court. The learned Joint Civil Judge (Junior Division) Sholapur, framed three issues in the light of the pleadings of the parties :

'(1) Whether the remedy of a suit for recovery of licence fees or compensation is available to the plaintiff?

(2) Is the new rule providing for licence fee of Rs. 100/- per year, irrespective of the nature of trade or business carried on by the licencee, invalid, ultra vires or illegal, for any reason mentioned in the defendant's written-statement?

(3) Whether the present suit is maintainable in view of the fact that the defendant was prosecuted, convicted and sentenced for doing business without licence?'

On a careful consideration of the provisions of the Act and the Rules, the learned Civil Judge decided all the issues in favour of the Market Committee. The learned Civil Judge relied on the decision of this Court in Thana Borough Municipality v. Akbaralli Hansanali, : AIR1957Bom34 and held that as the Market Committee was entitled to recover the licence fees and it suffered loss by non-payment by the defendants, the suit for the recovery of the amount of Rs. 100/- as licence fees was maintainable and decreed the plaintiff's suit.

5. Feeling aggrieved by the said Judgment and decree, the defendants filed five respective appeals, which were disposed of by a common Judgment by the District Judge, Sholapur, on February 1, 1967, by reversing the finding of the trial Court, relying on the aforesaid decision in : AIR1957Bom34 though he came to the conclusion that the bye-laws and the rules were legally framed by the Committee and were legally framed by the Committee and the Market Committee was entitled to receive Rs. 100/- as license fees from each of the defendants. The learned Judge reversed the decree on the ground that the Civil Court had no jurisdiction to entertain the suit, in the absence of specific provision in the Act enabling the Market Committee to sue to recover licence fees who traded without a licence, observing as follows :-

'But the Legislature did not intend to empower the Market Committee to recover its licence fee from such persons. To trade without a licence was considered as a public wrong and not as a private wrong. The Market Act was passed and the Market Committees were established for the better regulation of buying and selling of agricultural produce and, therefore, it was considered that no private wrong was committed by a person if he traded without a licence, but such a person committed a public wrong, and, therefore, deserved criminal prosecution. There is no provision which empowers the Marker Committee to file a suit to recover the licence fee.'

In arriving at this conclusion , as stated above, he relied on the ruling in : AIR1957Bom34 and the passage from Halsbury's Laws of England Vol. I, Third Edn. quoted therein.

6. The said decision of the District Judge is challenged in the above revision application on the ground that the decision is erroneous in law and the learned District Judge erred in holding that the suit was not maintainable as the Civil Court had no jurisdiction to try the claim of the Market Committee for the recovery of licence-fees.

7. The correct principles which should be applied are as stated by Halsbury's Laws of England, Vol. I, Third edition, at paragraph 11, on page 9, which are as follows :

'Although a person who suffers an infringement of some private right may in general maintain an action in respect thereof, yet in the case of a right which depends upon statute it may be that there is some statutory remedy which alone he can pursue. In breach of a statutory obligation, no action will lie at the suit of the person injured by the breach, but where it appears that the duty is imposed for the benefit of particular persons, there arises a common law a correlative right of action in such persons if they are injured by its breach; the only rule which in all circumstances in valid is that the answer to the question whether a right of action in the injured individual arises must depend on a consideration of the whole Act and the circumstances, including the pre-existing law, in which it was enacted.'

This passage in Halsbury's Laws of England is based firstly on Cutler v. Wandsworth Stadium Ltd., 1949 AC 398, where it was laid down as follows :

'No action lies at the suit of an individual bookmaker against the occupier of a licensed dog-racing track on which a totalisator is lawfully in operation for failure to provide him with 'space on the tract where he can conveniently carry on bookmaking' in accordance with Section 11, sub-s, (2) (b) of the Betting and Lotteries Act, 1934. The obligation imposed by that section is enforceable only by criminal proceedings for the penalties specified in Section 30, sub-s, (1), of the Act.'

Lord Simonds observed as follows : -

'It is, I think, true that it is often a difficult question whether, where a statutory obligation is placed on A., B., who conceives himself to be damnified by A's breach of it has a right of action against him. But on the present case I cannot entertain any doubt. I do not propose to try to formulate any rules by reference to which such a question can infallibly be answered. The only rule which in all circumstances is valid is that the answer must depend on a consideration of the whole Act and the circumstances, including the pre-existing law, in which it was enacted. But that there are indications which point with more or less force to the one answer or the other is clear from authorities which, even where they do not bind, will have great weight with the house. For instance, if a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil accrues to the person who is damnified by the breach. For, if it were not so, the statute would be but a pious aspiration. But 'where' an Act '(I cite now from the judgment of Lord Tenterden C. J. in Doe v. Bridge, (1831) 1 Ad. 847 creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.' This passage was cited with approval by the Earl of Halsbury I. C. in Pasmore v. Oswaldtwistle, 1898 AC 387; Urban District Council. But this general rule is subject to exceptions. It may be that, though a specific remedy is provided by the Act, yet the person injured has a persona right of action in addition. I cannot state that proposition more happily, or indeed more favourably to the appellant, than those in the words of Lord Kinnear in Black v. Fife Coal Co Ltd., 1912 Ac 149. 'If the duty be established I do not think there is any serious question as to the civil liability. There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Atkinson v. Newcastle Waterworks Co., (1892) 2 Ex D 441 and by Lord Herschell in Cowley v. New market Local Board, 1892 AC 345 solves the question. We are to consider the scope and purpose of the statute and in particular for whose benefit it is intended. Now the object of the present statute is plain. It was intended to compel mine-owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law correlative right in those persons who may be injured by its contravention.' An earlier and a later example of the application of the principle will be found in Groves v. Wimborne (Lord), (1898) 2 QB 402 and Monk v. Warbey, (1935) 1 KB 75 in the former of which cases the Act in question was described by A. L. Smith L. J. as 'a public Act passed in favour of the workers in factories and workshops to compel their employers to do certain things for their protection and benefit.'

After these principles, Lord Simonds considered the facts of the case before him in the light of the provisions of the Act, and observed as follows : -

'For the sanction of criminal proceedings emphasizes that this statutory obligation, like many others which the Act contains, is imposed for the public benefit and that the breach of it is a public not a private wrong. Then it was said that the obligation imposed by Section 11 on the occupier of a tract was intended for the benefit of bookmakers and, to make this argument more cogent, it was contended that only Ss. 11, 12, 13 and 14 of the Act together with Sections 29 and 30 need be looked at in order to get that purview of the Act which the authorities prescribes. From this I dissent, Part II may perhaps be ignored, but Part I and Part III must clearly be read as a whole. So reading it, I have no doubt that the primary intention of the Act was to regulate in certain respects the conduct of betting operations thereon. If in consequence of those regulations being observed some bookmakers will be benefited, that does not mean that the Act was passed for the benefit of bookmakers in the sense in which it was said of Factory Act that it was passed in favour of the workmen in factories. I agree with Somervell L. J. that where an Act regulates the way in which a place of amusement is to be managed, the interests of the public who resort to it may be expected to be the primary consideration of the legislature. If from the work of regulation any class of persons derives an advantage, that does not spring from the primary purpose and intention of the Act.'

8. In the same case, Lord Du Parcq observed at page 410 as follows :-

'I agree with those who say, as was said by Stephen J. in Vallance v. Falle, (1884) 13 ABD 109, that 'the best way of find out the meaning of statute is to read it and see what it means', and I do not regret, any more than I understand Lord Greene M. R. to regret, the fact that, as he said in the present case, so-called rules of construction 'have fallen into some disfavour'. It must be recognized, however, that the Courts have laid down, not indeed rigid rules, but principles which have been found to afford some guidance when it is sought to ascertain the intention of Parliament. In Philips v. Britannia Hygienic Laundry Co. Ltd., (1923) 2 KB 832 Bankers L. J. cited a well-known passage from speech of Lord Macnaghten in Pasmore v. Oswaldtwistle Urban District Council, in which that noble and learned Lord, referred to the statement of Lord Tenterden in Deo v. Bridges, spoke of the 'general rule' that 'where the Act creates an obligation, and enforces the performance in a specified manner ............ that performance cannot be enforced in any other manner.' 'Whether the general rule is to prevail,' (said Lord Macnaghten) 'or an exception to the general rule is to be admitted, must depend on the scope and language of the Act which creates the obligation and on considerations of policy and convenience.'

Lord Reid observed at page 417 :-

'I see no reason to infer from the Act read as a whole or from the circumstances founded on by the appellant that the enjoyment of these facilities required or was intended to have any further protection than that afforded by the tract occupier's liability to prosecution if he failed to comply with the statutory provisions. But I think that the clearest indication of the intention of the legislature is to be found, in the terms of Section 11, sub-s, (2), itself. I find it extremely difficult to reconcile the nature of the provisions of this sub-section with an intention to confer on individual bookmakers rights which each could enforce by civil action.' The passage in Halsbury's Laws of England was further based on a decision in Biddle v. Truvox Engineering Co. Ltd; Greenwood and Batley Ltd., (1952) 1 KB 101. This was under the Factories Act. By Section 17 (2) of the Factories Act, 1937. the vendor of a machine, inadequately guarded within the meaning of Section 17 (1), is guilty of an offence, and is liable to a penalty not exceeding $100. The plaintiff recovered damages from the defendants, occupiers of a factory, for injuries sustained by him by reason of a certain machine used in the factory not being encased as required by Section 17 (1) of the Act. The defendants claimed contribution from the sellers of the machine under Section 5 (1) (c) of the Law Reform (Married Women and Tortfeasors) Act, 1935, alleging that if they had been sued by the plaintiff, they would have been liable in respect of the same damage by reason of their breach of the provisions of Section 17 (2). It was held by Funemore that on its true construction sub-section (2) of Section 17 was a penal provision only, and accordingly the injured workman had no right of action against the vendors for a breach of its provisions, and the claim of the defendants against them under Section 6 (1) (c) of the Act of 1935, therefore, failed.

9. It, thus, becomes clear that the question as to whether the Market Committee could file a suit having regard to the provisions of the penalty under Section 20 of the Bombay Agricultural Produce Markets Act, 1939, will depend on a proper construction of the said Act.

10. The act, with which we are concerned in the present case is the Bombay Agricultural Produce Markets Act, 1939, which was in force till the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (Maharashtra Act No. XX of 1964) came into force on May 25, 1967 (Vide Notification dated May 19, 1967). It is, therefore, not necessary for us to refer to the later Act. The Bombay Agricultural Produce Markets Act, 1939, was an Act to provide for the better regulation of buying and selling and the establishment of markets of agricultural produce in the Province of Bombay, as it then existed, and which included Sholapur.

11. Under Section 3 of the said Act power was given to the Commissioner to inform the intention of exercising control over the purchase and sale of agricultural produce in specified area. Under Section 4, after the expiry of the period specified in the notification issued under S. 3 and after considering such objections and suggestions, as may be received before such expiry and after holding such inquiry as may be necessary the Commissioner by notification in the official gazette declared the area specified in the notification as market area for the purposes of the Act in respect of all or any of the kinds of agricultural produce specified in the said notification. Sub-section (2) of section 4 laid down that on and after the date on which any area is declared to be a market area under sub-section (1), no place in the said area shall, subject to the provisions of Section 5-A, be used for the purchase or sale of any agricultural produce specified in the notification issued thereunder, except under a licence issued by the Commissioner pending the establishment of a market in such area under Section 5. Section 5 confers powers on the State Government to establish market committee for every market area. Section 5A of the Act empowers the Market Committee to issue licence in accordance with the rules to traders, commission agents, brokers, weighmen, measurers, surveyors, warehousemen and other persons to operate in the market. Section 6 provides for the constitution of Market Committees, the details of which are not relevant for our purpose.

12. Chapter III of the Act deals with the Incorporation of Market Committee, and its powers and duties. Section 7 in that Chapter lays down that every market committee shall be a body corporate by such name as the State Government may specify by notification in the Official Gazette, and further it shall have perpetual succession and a common seal, may sue and be sued in its corporate name and shall be competent to acquire and hold, lease, sell or otherwise transfer any property and to contract and to do all other things necessary for the purposes for which it is established. Section 9 speaks about the appointment and salaries of servants of the Market Committee, and Section 10 deals with the execution of contracts by the Market Committee. Section 11 empowers the Market Committee to levy fees on the agricultural produce bought and sold by licencees in the Market area. Section 13 lays down that all money received by a Market Committee shall be paid into a fund to be called 'The Market Committee Fund' and all expenditure incurred by the Market Committee under or for the purpose of this Act shall be defrayed out of the said fund. Section 14 lays down the purpose for which the fund shall be expended. It is not necessary to refer to other sections or Chapter IV which deals with miscellaneous provisions, including Section 26 (2) (f), which empowered the State Government to frame rules, to regulate the issue of licences to traders, commission agents, brokers, weighmen, measures, surveyors, warehousemen and other persons operating in the market in the form in which and the conditions subject to which such licences shall be issued or renewed, and the fees to be charged therefor. Section 20 of the Act runs as follows :-

'Whoever contravenes the provisions of Section 4 shall, on conviction, be punishable with fine which may extend to five hundred rupees, and in the case of a continuing contravention with a further line which may extend to one hundred rupees for every day during which the contravention is continued after first conviction.'

In exercise of the powers conferred on State Government, under S. 26 of the Act, the Bombay Agricultural Produce Market Rules, 1941 were framed. It is sufficient for the purposes of these revision applications to quote R. 65 of those Rules, Rule 65 runs as follows : -

'Licensed traders and general commission agents, - (1) No person shall do business as a trader or a general commission agent in agricultural produce in any market except under a licence granted by the market committee under this rule.

(2) Any person desiring to hold such licence shall make a written application for a licence to the market committee and shall pay a fee of one hundred rupees.

(3) On receipt of such application together with the proper amount of the fee, the market committee may, after making such enquiries, as may be considered necessary for the efficient conduct of the market grant him the licence applied for. On the grant of such licence an applicant shall execute an agreement in such form as the market committee may determine, agreeing to conform with these rules and the bye-laws and such other conditions as may be laid down by the market committee for holding the licence.

(4) Notwithstanding anything contained in sub-rule (3), the market committee may refuse to grant a licence to any person, who in its opinion, is not solvent or whose operations, in the market area are not likely to further efficient working of the market under the control of the market committee.

(5) The licence shall be granted for a period of one year, after which it may be renewed on a written application and after such enquiries as are referred to in sub-rule (3) as may be considered necessary, and on payment of the fee provided in sub-r. (2).

(6) The names of all such traders and general commission agents shall be entered in a register to be maintained for the purpose.

(7) Whoever does business as a trader or a general commission agents in agricultural produce in any market without a licence granted under this rule or otherwise contravenes any of the provisions of this rule shall on conviction be punishable with fine, which may extend to Rs. 200 and in the case of the continued contravention with a further fine which may extend to Rs. 50 for every day during which the contravention continues after the date of the first conviction, subject to the maximum of Rs. 200/-.

13. The Market Committee, Sholapur, had also framed bye-laws under Rule 53 (2) of the Bombay Agricultural Produce Markets Rules, 1941.

14. Bye-law 33 runs as follows :-

'Licence-fees : (1) All traders, general commission agents, weighmen, measurers, surveyors and warehousemen operating in the market shall pay full fees for each market year or any part thereof as per Schedule I given in Appendix No. 2 for obtaining licences, required to be taken by them under Rules Nos. 65 and 67.'

Schedule No. 1 in Appendix 2, provided that every trader has to pay licence fee for the market year at the rate beginning from September 1, till August 31 following under Bye-law 32.

15. It is clear from the perusal of this Act, Rules and bye-laws that penalty is provided only for trading without a licence. It is not a penalty for non-payment of licence fees.

16. The principle stated in Halsbury in the aforesaid passage, relying on the above cases, therefore, is entirely irrelevant so far as the recovery of the licence fees is concerned. It is clear from the provisions of the Act and the Rules framed thereunder, that the Agricultural Produce Market Committee is vested with powers to issue licence on payment of licence fees. The funds are meant for its services under the Act for carrying out its purpose under the law.

17. The only question, however, which arises in these revision applications is whether merely because fees are to be paid on the applications made by the traders, or because the traders are liable to be prosecuted for trading without a licence, a suit for recovery of the fees from traders, who are trading without a licence, is not maintainable at the instance of the Market Committee. It is well settled that under the legal system in this Country an exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless certain conditions are fulfilled, viz. (1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant, but is not decisive to sustain the jurisdiction of the Civil Court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund of the claim if clearly within the time prescribed by the Limitation Act, but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund if tax collected in excess of constitutional limits or illegally collected, a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined, because it is relevant enquiry. (See : Dhulabhai etc. v. State of Madhya Pradesh, : [1968]3SCR662 ).

18. Section 9 of the Code of Civil Procedure lays down that the Civil Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. We must, therefore, see if there is express or implied bar in the Bombay Agricultural Produce Markets Act, 1939, to the suits filed by the Market Committee in these cases to recover licence fees. There is no express bar. The learned District Judge has held that there is implied bar, because the act provides a remedy by way of filing a prosecution against the dealers for trading without licence. In my judgment, the view taken by the learned District Judge is patently erroneous as it cannot be said on reading the provisions referred to above and the entire Act and the Rules made thereunder that the Act has provided any remedy for the recovery of licence fees. The prosecution is launched not for recovering the licence fees, which the trader is bound to pay in order to trade in the market area, but for trading without a licence. It cannot be said that non-payment of fees is public wrong done to the Market Committee, which is a person in the eye of law. It may be that the trading without a licence is a public wrong, and therefore, the trader is liable to be prosecuted. But the non-payment of fees is also a wrong to the Corporate body, and I do not see how the passage cited from Halsbury's Laws of England or any of the cases referred above, bar a suit or how the general principle of implied exclusion of civil Court's jurisdiction can bar a suit of the nature filed by the Market Committee against dealers in the present case for the recovery of fees.

19. Mr. Abhaynakar, supporting the reasoning of the learned District Judge, submitted that such a view cannot be taken in view of the decision of Bavdekar J. in : AIR1957Bom34 . The facts of that case are, however, distinguishable. That was a case where the Municipality had filed a criminal complaint against the Bombay Municipal Boroughs Act, 1925, for unauthorised construction of a building in the municipal area. During the pendency of this complaint, the municipality filed a suit against the respondent under Section 204 of the Act for an injunction restraining the respondent from occupying the said building either by himself or his tenant and for a direction to the respondent to demolish the unauthorised construction. It was in these circumstances that Bavdekar J. felt that the subject-matter of the complaint and the suit were one and the same, viz., unauthorised construction, and as the statute had provided a remedy to the Municipality, a suit for injunction was not maintainable.

20. That case can have no application to the present case where the suit is for the recovery of licence-fees or damages. The suit is not for damages or for an injunction regarding trading without a licence which is a public wrong. The suit is for the recovery of licence-fees, which the Market Committee would have recovered legally. There was a duty cast on the traders to obtain a licence corresponding to that duty. The Committee had a right to grant licence on payment of licence-fees. That right could not be enforced by prosecuting the traders for trading without licence. In my judgment, the right of the Market Committee to recover licence-fees corresponds to the duty of the traders to obtain a licence before trading in the Market area. As the Act has not provided for any remedy regarding that right, the general principle ubi jus ibi remedium, will apply and the Market Committee is entitled to file a suit to recover the licence-fees as damages for the breach of the duty imposed by the Bombay Agricultural Produce Markets Act, 1939, on the traders.

21. Where there exits a right recognized by law, there exits also a remedy for the infringement of such right. It cannot be contended that the right of the Market Committee to recover licence-fees or damages in lieu of licence-fees for breach of the duty imposed on the traders, is remedied by prosecuting them for trading without a licence. The prosecution for trading without a licence is intended by the Legislature for the benefit of the public. The right to recover the licence-fees is conferred on the Market Committee under the Act, Rules and Bye laws, for its own benefit. The amount would go into the funds of the Market Committee, which is necessary for the Market Committee to function. I am, therefore, of the opinion that the learned District Judge erred in dismissing the plaintiff's suit on the ground that the suit was not maintainable merely because the defendants were prosecuted or are liable to be prosecuted under the Act.

22. There is no dispute that if the suit is maintainable, the Market Committee is entitled to recover licence-fees as damages.

23. The revision applications are therefore, allowed, the judgment and decree passed by the learned District Judge are set aside and the decrees passed by the trial Court in all the five cases are restored for the reasons stated hereinabove. The defendants in each of the suits to pay the costs in respect of the respective suits and appeals to the petitioners. The defendants to pay costs of the Market Committee in also this Court. Rule made absolute in each of the matters.

24. Rule made absolute.


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