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Delhi District Court

M/S. Fruit & Vegetable ( L & M) vs Agricultural Produce Marketing ... on 4 September, 2010

  THE COURT OF SH. PRASHANT KUMAR CCJ/ARC ROHINI COURTS
                          DELHI

     SUIT No. 225/10


    1. M/s. Fruit & Vegetable ( L & M)
         Tempo Union Opposite
         Office At - C - 74-75,
         Parking Area, Azadpur
         Delhi - 110 033.                                         (PLAINTIFF)
                                          Versus
    1. Agricultural Produce Marketing Committee (APNC)
         Office At - NFM Phase - II, Azadpur,
         Sarai Pipal Thala,
         Delhi - 110 033.                                         (DEFENDANT)


         Date of Institution of the Suit : 08.04.2010
         Date of reserving the order      : 04.09.2010
         Date of pronouncement            : 04.09.2010


                                          ORDER

1. By way of this Order I shall decide preliminary issue, which are as under: -

"Whether the suit filed by the plaintiff is not maintainable as he is having the alternative efficacious remedy available to him as per Section 41(h) of Specific Relief Act?"

The facts of the case narrated by the plaintiff in brief are as under that:-

Plaintiff firm is rendering service from the office situated at opposite C - 74-75, Tempo Stand Union Azad Pur, Delhi and doing the business of loading & unloading the fruits and vegetables from one place to another. Plaintiff firm was registered in the year 1974 and has its own fruit and vegetables tempo union. Plaintiff is paying monthly loan to defendant since 14.09.1979. Defendant issued Allotment of Space/ License dt. 18.04.1996 to the plaintiff. Defendant has been receiving the license fee since 18.04.1996 which was revised on 02.08.2005. Plaintiff has paid the license fee regularly till 11.11.2008. Defendant, however, has refused to accept the license fee thereafter, on the ground that it shall be received after the renewal and extension of the allotment. The allotment of the space of the plaintiff, however, has been cancelled without serving any notice upon him. Hence, this suit for permanent injunction.

2. In his WS, defendant has stated that the suit filed by the plaintiff is not maintainable as he is having the alternative efficacious remedy available with him. As per the APMC Act there is a procedure in the Act by which any space is alloted to the service provider which are mentioned in the Act itself, a license fees has to be admitted and such allotment is as per the rules and regulations. It is further stated by the defendant in their WS that filing of the suit is barred u/s. 111 of APMC Act as the Act provides for the provisions of Appeal before the higher authorities. Thus, this Court has no jurisdiction to try this case.

3. On the basis of this preliminary objection, Section 111 of the Act , this preliminary issue has been framed accordingly.

"Whether the suit filed by the plaintiff is not maintainable as he is having the alternative efficacious remedy available to him as per Section 41(h) of Specific Relief Act?"

4. Arguments heard at length. Record perused throughly.

5. During the arguments, it is stated by the plaintiff that services rendered by the plaintiff are not specified by the provision of the Act, therefore, the bar u/s. 111 of the Act is not applicable. It is further alleged by the counsel for plaintiff that case of plaintiff is not covered as per Section 82, of the Act, therefore, the license cannot be issued as per the Act. It is further alleged by the plaintiff that no license has been issued by the defendant and defendant has been receiving the rent and not the license fee from the plaintiff. It is further alleged by the counsel for plaintiff that they have preferred an Appeal against the order of APMC and that Appeal has been dismissed simply. It is stated lastly by the plaintiff that license has been issued to other traders and plaintiff has specifically chosen and has been denied the extension of license.

6. The counsel for defendant, on the other hand, has stated that as per Section 111 of the Act, notice has not been given to the defendant. It is further alleged by the defendant that plaintiff has preferred an Appeal against the order of APMC which has been decided, during the pendency of this suit. The Act further provides for further Appeal and approaching the Court itself for license for allotment of space.

7. Arguments heard at length. Record perused throughly. Provision 82 & Rule 15 & 55 of APMC Act are perused. Plaintiff are providing their services for transport for loading and unloading fruits & vegetables, therefore, they are well covered under the scheme of the Act for which the license is required. This license has to be granted as per the rules & procedures by the APMC. It is further reflected from the documents filed by the plaintiff S. No. 225/10 3/7 himself that in the allotment letter to the plaintiff they have been mentioned as licensee though, the plaintiff has shown certain receipts issued on behalf of the APMC showing that rent is being received, however, the allotment letter in favour of the plaintiff is showing that the license fee is to be charged from them. Thus, from the document filed by the plaintiff, it is reflected that the arguments advanced by the plaintiff are not supporting their contentions. These documents filed by the plaintiff on record i.e., allotment of space of license dt. 18.04.1996 and other documents are reflecting in clear words that license fee is to be charged. Plaintiff has filed the documents for example, document dt. 01.06.2006, which is issued by APMC pertaining to the extension of allotment of space to the plaintiff which reflects that the allotment is purely on adhock basis and would be in no way confirm a permanent right. It is further mentioned in this document and various other documents that adhock of allotment is liable to be cancelled without any reason and license fees is to be charged accordingly, which shall not be construed as tenancy. Thus, documents filed by the plaintiff themselves are not supporting their contentions.

8. Section 111 of APMC Act is also perused. This Section provides the bar for filing of any such suit before the Civil Court. It is further reflected that if any service provider, as mentioned in the Act, is aggrieved by any of the act done by the APMC, then, this Act provides for provision of Appeal before the relevant authority. This remedy has also been availed by the plaintiff. This Act further provides for further redressal of grivances of the aggrieved party. It is thus, reflected that in any such case, jurisdiction of Civil Court is barred in these circumstances.

9. The counsel for plaintiff has relied upon certain judgments, which are as under :-

i.) "Ishar Das V/s. Bhaion Ki Dokan, 1939, Punjab Law Reporter" - It is held in this judgments that there is no bar of filing of second application for injunction. It is important to mention here that in the present case one preliminary issue is under consideration, thus, the judgments relied upon by the plaintiff is not relevant in the present facts and circumstances.

ii.)"V.K. Muthuswami Gounder V/s. Das & Co., AIR 2000 NOC I (Madras)"

iii.) "Shakuntala V/s. Hira Nand Sharma, AIR 1986 Delhi 27"

The above cited two judgments are on the ground of tenancy. In the present facts and circumstances, it has already been observed above that the allotment of space, as per the record, filed by the plaintiff himself is purely on license basis and it does not result into creation of any tenancy therefore, the judgments relied upon by the plaintiff is not applicable here in this case.

10. The counsel for defendant has relied upon one judgment:-

i.) "D.T.T.D.C. V/s. D.R. Mehara & Sons, AIR 1996 Delhi 351". It is held in this judgment that a person who himself asks the owner to enter into a "Licence" and enters into such an agreement cannot, after expiry thereof and express request of the owner to vacate, seek the helping hand of the Court for a temporary injunction against the owner and the licencee cannot contend that till he is dispossessed by due process of law, he is entitled for an injunction.

11. In the light of the above cited judgments, which is relied S. No. 225/10 5/7 upon by the defendant, it is clear that if any license is cancelled by the licensee then the licensee cannot claimed as a matter of right for any further relief i.e., seeking injunction against the owner against dispossession. In the present facts and circumstances, it is reflected from the documents itself and stated by the defendant that plaintiff was a licensee and its license has been terminated by the APMC and has not been extended any further which is acknowledged by the plaintiff, therefore, the above cited judgment is equally applicable in the present facts and circumstances. It is further important to mention here that APMC is special regulation on this subject which provide for provision of Appeals before the specified authority and further jurisdiction of Civil Court is barred. Therefore, in these circumstances, I am of the opinion that plaintiff is having an alternate efficacious remedy available to him, as per Section 41 (h) of Specific Relief Act. As per Section 111 of APMC Act, the jurisdiction of Civil Court is barred. The proper remedy available to the plaintiff to seek appropriate relief before the appropriate forum itself as provided in the Act. It is stated on behalf of the defendant that this opportunity has already been availed by the plaintiff, therefore, in these circumstances, I am of the opinion that suit filed by the plaintiff is not maintainable against the plaintiff and the issue is decided in favour of the defendant and against the plaintiff. Thus, suit filed by the plaintiff is not maintainable.

    Announced in Open Court                           (Prashant Kumar)
    Dated 04.09.2010                                CCJ/ARC/ROHINI/Delhi




S. No. 225/10                                                                       6/7
     Suit No.: 225/10


    04.09.2010Present:     Counsel for both the parties.

Arguments on preliminary issues have already heard at length. Vide separate order sheet preliminary issues are decided in favour of the defendant. Suit filed by the plaintiff is not maintainable, hence, it is dismissed.

File be consigned to Record Room.

(Prashant Kumar) CCJ cum ARC Rohini Courts, Delhi 04.09.2010 S. No. 225/10 7/7