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Taj Mohammad and ors. Vs. Agricultural Produce Market Committee Nagpur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Rev. Appln. Nos. 818 and 819 of 1980 and C.R.A. Nos. 2 to 12 of 1981
Judge
Reported inAIR1982Bom558; 1981MhLJ453
ActsMaharashtra Agricultural Produce Marketing (Regulation) Act, 1964 - Sections 29 and 46; Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 - Rules 7(4) and 120; Code of Civil Procedure (CPC), 1908 - Sections 9 - Order 29, Rule 1
AppellantTaj Mohammad and ors.
RespondentAgricultural Produce Market Committee Nagpur
Appellant AdvocateM.G. Bhangde, Adv.
Respondent AdvocateK.H. Deshpande, Adv.
Excerpt:
.....of a public wrong and there was no infringement of any private right. the submitted that if the market committee cannot take steps to prevent violation of its monopoly rights, the object of investing the committee with such powers would be defeated. existence of a penal provision rendering certain acts punishable under the criminal law does not necessarily imply negation of a civil liability, for it is well known that a certain act may give rise to a criminal action and at the time to an actionable civil wrong. so from the outset there have been many crimes which at common law were private wrongs to the person who suffered particular damage from them as well as public wrongs; the result is that the relief of compensation by proceedings in arbitration is contrary to law and bad. so far..........the jurisdiction of the civil court, the plaintiff could file a civil suit in vindication of such civil right.9. the crux of the matter is whether the committee has or has no civil right under the provisions of this act, and whether these civil suits that are filed are in vindication of a civil right, or only for enforcing the penal provisions of section 46 of the act and as such barred.10. to began with, i may refer to certain provision of the act, i may refer to certain provision of the act. firstly, the object of the act, a can be seen, is to regulate the marketing of agricultural and certain other produce in market areas and to establish markets therefor in the state and to confer powers on the market committee to be constituted in connection with or acting for purposes connected.....
Judgment:
ORDER

1. This judgment shall dispose of Civil Revision Applications Nos.818 and 819 of 1980 and Civil Revision Applications Nos.2 to 12 of 1981.

2. The non-applicant (original plaintiff), namely Agricultural produce market committee, Nagpur, is common in all these revision applications. This non-applicant had filed separate suits against each of these applicants for perpetual injunction and had applied for a writ of temporary injunction. The trial court rejected these applications, but the first appellate court allowed them and hence these revisions by the original defendants. As common question of law and fact was involved in all these matters, the trial court as well as the first appellate court also disposed of these applications for temporary injunction by common judgment.

3. The Non-applicant Agricultural produce market committee (hereinafter called the committee) was duly established under section 11 of the maharashtra Agricultural produce marketing (Regulation) Act, 1963 (hereafter called the Act.) The present revisions fall in two categories. Four revision applications Nos.5,10, 11 and 12 fall in one category, in that the applicants in these revision applications admittedly have been operating as commission agents in the market area, without any valid license. The applicants in the rest of the revisions, no doubt, hold a valid licence as Adtiyas or commission Agents, but admittedly again they have been recovering the commission from the agriculturists at a higher rate of 6 per cent in contravention of the terms of their licence.

4. The non-applicant-committee, therefore, filed separate suits restraining the first four applicants from working as commission Agents within the market area and restraining the rest of the applicants from recovering the commission from the cultivators in excess of the rate prescribed under the licences.

5. The applications made by the committee for temporary injunction were all dismissed by the trial court holding that the plaintiff-committee has no locus standi or right to file the civil suits as section 46 of the Act provides for a penalty.

6. In the appeals preferred by plaintiff-committee, the first appellate court found that the plaintiff-committee had made out a prima facie case that the civil court has jurisdiction to entertain the suits and to issue injunction and allowed the applications of the plaintiff.

7. In these revisions preferred by the original defendants, shri Bhangde, the learned counsel, submitted that section 6 of the Act itself enacts a prohibition and an injunction against all persons not to operate without licence or in violation of the terms of the licence issued. Thus this statutory provision itself operates (as) an injunction against such persons and the first appellant court by granting temporary injunction against these applicants in a way only re-enacted the provisions of section 6 of the Act. He further submitted that there could be no injunction to prevent the breach of any provision of law. In other words, what was complained of was prevention of a public wrong and there was no infringement of any private right. The committee, according to him, receives cess from the purchasers and if these applicants are charging more commission from the cultivators, or are operating as commission Agents within the market area without licences, there is no damage or loss to the committee. The alleged conduct of the applicants, therefore, does not entail in civil wrong to the committee. His further argument is that the Act itself is a self-contained code creating rights and liabilities and also providing remedies in case of breach of the provisions of the said Act. He also submitted that grant of a licence by the committee in favour of an applicant does not constitute a contract and as such the provisions of O.39, R.2 of the civil P.C. dealing with cases of breach of contract can have no application. So far as cases of those who are operating without a licence, there is no question of any at all, or of breach of any contract. Thus, according to him, neither the provisions of R.1 or R.2 of O.39 of the Civil P.C. are attracted. He relied upon several authorities which would be referred to in due course.

8. Shri K.H.Deshpande, the learned counsel appearing for the non-applicant-committee, submitted that the object of the Act is to regulate the marketing of agricultural produce in market areas and to confer powers upon markets committees to b e constituted for the purposes connected with such markets. The various provisions of the Act, he submitted, make it clear that the market committee is endowed with certain powers and is also enjoined certain duties to enforce the provisions of the Act for the above purposes. The submitted that if the market committee cannot take steps to prevent violation of its monopoly rights, the object of investing the committee with such powers would be defeated. He submitted that there is no doubt a remedy in criminal Law as provided by section 46 of the Act, but there is no provision in the Act itself to prevent recurrence of such acts. Again there is no provision in the Act which ousts the jurisdiction of the civil court , either expressly or by necessary implication. The Act in that sense, therefore, cannot be said to be a self -contained code as to oust the jurisdiction of the court. The impugned conduct of the applicants, he submitted constituted a wrong, in that they had directly infringed the right that is conferred on the committee and in the absence of any such provision in the Act itself, expressly or by necessary implication outstaying the jurisdiction of the civil court, the plaintiff could file a civil suit in vindication of such civil right.

9. The crux of the matter is whether the committee has or has no civil right under the provisions of this Act, and whether these civil suits that are filed are in vindication of a civil right, or only for enforcing the penal provisions of section 46 of the Act and as such barred.

10. To began with, I may refer to certain provision of the Act, I may refer to certain provision of the Act. Firstly, the object of the Act, a can be seen, is to regulate the marketing of agricultural and certain other produce in market areas and to establish markets therefor in the state and to confer powers on the market committee to be constituted in connection with or acting for purposes connected with such markets. Section 6 of the Act which deals with regulation of marketing of agricultural produce prohibits or injuncts any person from operating in the market area as a trader or commission agent, or a broker without any licence or otherwise than in conformity with the terms of the licence. Section 11 then refers to establishment of market committees and says that the market committee so established shall have all such powers and discharge all such functions as are vested in it by or under the Act. Section 12 says that every market committee shall be a body corporate and shall have perpetual succession and a common seal and may in its corporate name sue or be sued and shall be competent to contract, acquire and hold property and do al other things necessary for the purposes for which it is established. Section 29 deals with the powers and duties of a market committee and sub-cl. (K) of sub-section (2) of section 29 is in these words :

'29 (2) (k) enforce the provisions of this Act and rules, bye-laws and conditions of the licences granted under this Act.'

Section 46 provides penalty for contravention of the provisions of section 6, Thus a person operating without any licence or acting in contravention of the terms of the licence is no doubt liable for criminal prosecution and for punishment as is prescribed under this section.

11. Rule 7 (4) of the maharashtra Agricultural produce marketing (Regulation) Rules. 1967 is in these terms:

'7 (4) . The applicant, on a licence being granted, shall execute an agreement in such form as may be approved by the Director of under the bye-laws, agreeing to abide by the provisions of the Act, these rules and the bye-laws.'

Rule 120 (e) empowers a committee to make bye-laws in respect of the form of an application for grant and renewal of a licence and an agreement to be executed before the grant of a licence. Under the prescribed form of the agreement a licensee has to give an undertaking that he would abide by and observe the conditions and terms of the licence. It is thus clear that the committee is not only endowed with certain power but charged with duty to enforce the provisions of this Act. The committee is thus constituted the sole authority to regulate the marketing of the agricultural produce in market areas and the persons who are granted the licence to operate as commission agents or brokers or traders ar also bound to act in accordance with the terms thereof. Section 46, no doubt, prescribes penal consequences for a person who uses any place in market area for marketing agricultural produce, or operates as a trader or a commission agent without any valid license, but that would not necessarily mean that no civil action can, therefore, lei, The answer to the question whether an action in a civil court for an injunction can lie or not depends on a proper answer to the question whether the plaintiff has or has no civil right and not by pointing out to the penal provision as contained in section 46 of the Act. Existence of a penal provision rendering certain acts punishable under the criminal law does not necessarily imply negation of a civil liability, for it is well known that a certain act may give rise to a criminal action and at the time to an actionable civil wrong.

12. In Gouriet v.Union of post office workers 1977 3 All ER 70, which was relied upon by shri Bhangde, an action was commenced by a citizen seeking an injunction as the Union of the post office workers had resolved not to accept mail from England to south Africa from a particular date. Though such an action was punishable, the Attorney General took no steps and the question posed was if the Attorney General does not act himself, 'Are the courts to stand idly by?' as such suggesting impliedly that the civil courts have some executive authority in relation to the criminal law. The injunction prayed for was refused as it was an offense against the public and no remedy was provided for enforcement of the public wrong. Though this ruling has no application to the facts of the present case, the following observations of lord Diplock are, however, relevant and apposite:

'The second reason why they are important is that they are relevant to the distinction between an injunction in restraint of crime simpliciter and an injunction to restrain conduct which although amounting to a crime would also infringe some right belonging to the plaintiff who is applying for the injunction which is enforceable by him in private law. The suppression of private revenge for wrongs by remedies obtainable, from courts, of justice and enforce, able by the executive authority of the stateless at the common origin both of the criminal law and of the civil private law of tort. So from the outset there have been many crimes which at common law were private wrongs to the person who suffered particular damage from them as well as public wrongs; and the policy of the law has been not to deprive the victim of a private wrong of his redress in civil private law against the wrong-doer merely because the wrong-does is subject also to punitive sanctions under the criminal law for the same conduct, .............................'

13. Next ruling Rohtas Industries Ltd, v.Rohtas Industries staff union : (1976)ILLJ274SC that was relied upon by shri Bhangde was a decision under the Industrial Disputes Act. There was a strike and the terms of the agreement inter alia provided that the employees' claim for wages and salaries for the period of strike and the company's claim for compensation for losses due to strike shall be submitted to the Arbitrators. The award that was passed said that the workmen were not entitled to wages and salaries, but the company was found entitled to recover from the striking workmen the compensation assessed at Rs.80,000/- As the strike was held illegal and the Industrial Disputes Act nowhere provided payment of compensation to the employer, the award, as the supreme court held, could not be enforced with these observations (para 27) :

'It is common case that the demands covered by the strike and the wages during the period of the strike constitute an industrial dispute within the sense of S.2 (k) of the Act. Section 23, read with S.24, it is agreed by both sides, make the strike in question illegal. An 'illegal strike' is a creation of the Act. As we have pointed out earlier, the compensation claimed and awarded is a direct reparation for the loss of profits of the employer caused by the illegal strike. If so, it is contended by the respondents, the remedy for the illegal strike and its fall-out has to be sought within the statute and not dehors it. It this stand of the workers is right, the remedy indicated in S.26 of the Act, viz, prosecution for starting and continuing an illegal strike, is the designated statutory remedy. No other relief outside the Act can be claimed on general principles of jurisprudence. The result is that the relief of compensation by proceedings in arbitration is contrary to law and bad.'

14.Relying upon The premier Automobiles Ltd. V.Kamlakar shantaram wadke : (1975)IILLJ445SC shri Bhangde submitted that where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it, the party must adopt the form of remedy given by the statute and the jurisdiction of the Civil court is impliedly barred. This was again a case under the Industrial Disputes Act and it was observed that the object of the Act, as its preamble indicates, is to make provision for the investigation and settlement of industrial disputes, which means adjudication of such disputes also. The Act envisages collective bargaining, contracts between Union representing the workmen and the management , a matter which is outside the realm of the common law or the Indian law of contract. Thus having observed that the powers of the authorities deciding industrial disputes under the Act were very extensive - much wider than the powers of a civil court while adjudicating a dispute which may be industrial dispute, the party must adopt the form of remedy given under the statute itself.

15. Shri Bhangde relying upon The pigment Lakes and Chemical mfg. Co. Pvt. Ltd. V.sitram kashiram, 1969 mh LJ 710 : 1970 L IC 115 referred me to the following observations of willes J.in The wolverhampton New waterworks co.v. Hawkesford (1859) 6 CB 336 appearing in this decision which are extracted therein (at p.119 of Lab IC):-

'There are three classes of cases in which a liability may be established founded upon a stature. On is, where there was a liability existing at common law, amd that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which and or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely ; but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz. Where liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class.'

16. It may be pointed out in this connection that S.29 (2) of the Act confers two kinds of powers on the committee under clauses (e) and (k) which are in these terms :

'(e) prosecute persons for violating the provisions of this Act, the rules and bye-laws made thereunder;

(k) enforce the provisions of this Act and Rules, Bye-laws and conditions of the licences granted under this Act',

Thus two distinct types of remedies are contemplated under these clauses. Section 46 of the Act, no doubt, provides for a remedy of criminal prosecution, but there is no remedy either sufficient of efficacious for enforcing the provisions of the Act. The remedy that is provided under section 46 cannot be said to be a remedy at all so as to enable the committee to regulate the marketing within its limits in an orderly manner for which no specific provision is made. As such it cannot be said that the present case falls under the third category of cases as submitted by Shri Bhangde, or that the jurisdiction of the civil court is impliedly barred.

17. As observed in Firm kishore chand shiva charan Lalv.Budaun Electric supply Co Ltd. : AIR1944All66 it would not be correct to say that there is no remedy in India for the breach of statutory obligation where the statute itself has not provided for the remedy. What the committee prays for in the present action is to prevent persons from encroaching upon its statutory right to regulate the marketing of agricultural and other produce in the market areas, for the proper and efficacious enforcement of which, the criminal prosecution as provided under section 46 of the Act cannot be a remedy. In my opinion, therefore merely because the statute provides for a remedy at criminal law, the jurisdiction of the civil court is not barred by necessary implication and the committee was justified in moving the civil court for issue of a write of temporary injunction against those who tried to infringe the statutory right of the committee and which the committee is entitled to seek in effective and efficacious enforcement of its statutory right.

18. Shri Bhangde then relied upon Thana Borough Municipality v.Akbaralli : AIR1957Bom34 . This case was under Bombay municipal Boroughs Act where an owner of the building had started construction of a second floor in contravention of the bye-laws and in spite of the refusal by the municipality.The municipality there upon filed a criminal complaint against him under S.123 (7), but inasmuch as there was a congestion in the criminal courts, it filed simultaneously a civil suit for an injunction restraining the owner from occupying the suit building either by himself of his tenants and for a direction to demolish the unauthorised construction. On the question whether the civil suit was maintainable, it was held that the obligation imposed upon the owner by the bye-laws was not for the benefit of the municipality and injunction, therefore, was refused. It is pertinent to note that the provisions of the Bombay municipal Boroughs Act did not provide for the consequences of building without permission and as such it was held that a direction as prayed for could not be issued.

19. The decision in Thana Borough municipality v.Akbaralli (supra) was referred to in The Agricultural produce market committee, sholapur v.pantappa sayanna : AIR1973Bom348 which was also relied upon by shri Bhangde. It appears that certain traders were prosecuted and convicted for trading without licence and the limited question was whether a civil suit therefor was barred for recovery of the licence fee from them at the instance of the market committee. It was held that there was no express bar in the Act or in the Rules made thereunder for filing such a suit. It was observed that trading without a licence is a public wrong and therefore such a trader is liable to b prosecuted. But non-payment of fees is also a wrong to the corporate body the funds of which are meant for services under the Act. The civil court's jurisdiction, therefore, it was held, was not impliedly barred. The observations made in Thana Borough Municiaplity's case were pressed into service for non-suiting this claim for recovery of licence fee, but the said argument was repelled by Vaidya, J. With these observations (para 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.'

Though the above observations are relied upon by shri Bhangde to show that a suit for injunction regarding trading without a licence would not lie, I find that no such principle was laid down in this decision. In repelling the argument that no suit for recovery of licence fee can lie in view of the decision reported in the afore stated case, the above observations came to be made. This decision, therefore, cannot be taken as an authority for the decision that no suit for injunction under the Act can lie.

20. In the present cases so far as the applicants,who admittedly are charging at a higher rate than agreed as per terms of the licence, are concerned, they are obviously violating their legal obligation. This legal obligation as contained in the terms of the licence not only restrict their freedom to charge more, but it is impliedly co-related to a right in the plaintiff. In this connection shri K.H.Deshpande relied upon the following observations to be found in Bhudeb Mookerjee v.Kalachand mallik AIR 1921 Cal 129:

'Obligation may be taken to be a tie or bond which constrains a persons to do or suffer something; it implies a right in an other person to which it is correlated, and it restricts the freedom of the obligee with reference to definite acts and forbearance's; but in order that it may be enforced by a court, it must be a legal obligation, and not merely moral social or religious'.

21. As observed by the supreme court in Dhulabhai v. State of Madhya Pradesh : [1968]3SCR662 :

'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 of the statute creates a special right or a liability and provides for the determination of the right of 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.'

22. In the instant case, as pointed out earlier though section 46 of the Act provides for criminal prosecution there is no remedy provided to the committee to enforce its statutory right as contemplated under section 29 (e) to enforce the provisions of the Act, the Rules or the Bye-laws and the conditions of the licence granted under the Act.

23. On a conspectus of all the relevant provisions of the Act referred to above, it is manifest that the committee is endowed with certain monopoly powers for regulating the marketing of agricultural produce within the specified market areas. It is also charged with a duty to enforce the provisions of the Act. The conferral of such plenary powers and right, though by a stature, certainly constitutes a civil right in the plaintiff, and merely because penal consequences are provided for that, by itself, would not deprive the plaintiff of its civil right to seek enforcement of the provisions of the Act or to prevent breach or infringement of its civil right. The jurisdiction of the civil court, therefore, is not ousted either expressly or by necessary intendment. So far as the commission agents who are acting in flagrant violation of the terms of the licence and trying to fleece the poor agriculturists are concerned, the committee is entailed to ask for issue of a writ of temporary injunction to prevent the breach of the terms of the licence by which these persons have bound themselves.

24. In the result, I find that the non-applicant -plaintiff made out a prima facie case and the lower appellate court was justified in granting the applications for temporary injunction. These revisions therefore, have to be dismissed. All these revisions are dismissed with costs.

25. Shri Bhangde prays for grant of leave to appeal to the supreme court. Leave refused.

26. Revisions dismissed.


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