PETITIONER:
THE AGRICULTURE PRODUCE MARKETCOMMITTEE-GONDAL & ORS.
Vs.
RESPONDENT:
SHRI GRIDHARBHAI RAMJIBHAICHHANIYARA & ORS.
DATE OF JUDGMENT: 05/05/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted.
Application for intervention is allowed.
We have heard the learned counsel for both sides.
This appeal, by special leave, arises from the judgment of the High Court of Gujarat at Ahmedabad, made on January 15, 1997 in Civil Application No.9563/96.
A few 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.
The 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 :
"37. 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 this behalf. Since 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 infringed. The 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:
"1. 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).
This 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.
2. 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.
3. 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.
4. In 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.
Therefore, 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.
(ii) 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.
(iii) 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:
"Heard 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.
Considering 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.
1. 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
2. The 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.
3. The 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.
4. 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 relief.
This 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.