Delhi District Court
Indraprastha Ice & Cold Storage Ltd vs Agricultural Produce Marketing ... on 18 October, 2007
Suit No. 186/04 1
IN THE COURT OF SHRI NEERAJ KUMAR GUPTA
ADDITIONAL DISTRICT JUDGE: DELHI
Suit No. 186/04
Indraprastha Ice & Cold Storage Ltd
17 & 18 Azadpur New Subzi Mandi,
Delhi - 110033 ....Plaintiff
Versus
Agricultural Produce Marketing Committee
(Service to be effected through its Secretary)
D-4, Panchwati, Azadpur, Delhi - 110033 ... Defendants
Date of Institution - 18.03.2004
Date on which order reserved- 10.10.2007
Date on which judgment delivered- 18.10.2007
JUDGMENT
The present suit has been filed by the plaintiff for grant of permanent injunction against the defendant thereby restraining the defendant, its officials, members, agents, employees, servants and representatives from interfering with the rights of the plaintiff in using the gate opening towards the GT Karnal Road, shown as Gate R in the Site plan, at the property situated at 17 & 18, Azadpur, New Subzi Mandi, Delhi or creating any obstruction in the ingress and egress of the movement of the Suit No. 186/04 2 trucks or of the plaintiff from gate R in the site plan.
2. The case of the plaintiff is that plaintiff is an incorporated company and Shri Sanjay Aggarwal who is director thereof is authorized signatory competent to sign, verify and file the present suit and the defendant who is a statutory body incorporated under the Delhi Agricultural Produce Marketing (Regulation Act) is a committee constituted for regulating the marketing of different kinds of agricultural produce marketed in the Azadpur Mandi Area in Delhi and that the plaintiff has been operating and running a Cold storage facilities at the aforesaid premises and as the plaintiff intended to start providing Deep Freeze Services within the said premises, it obtained requisite permissions from the appropriate authorities for the purpose of running cold storage and Deep Freeze services which were granted.
3. It is further the case of the plaintiff that the Deep Freeze facility is for the purpose of keeping goods such as Ice Cream, Butter etc and the defendant cannot have any control over the same as the plaintiff is not marketing any agricultural produce Suit No. 186/04 3 and is using the entire premises only for the purpose of storage.
4. It is also the case of the plaintiff that the entry point into the cold storage was earlier at gate P (as shown in the site plan) at the backside of the property which was accessed to the Service Road S-2 and the vehicles were entering from the entry point A and since the movement of large refrigerated trucks/containers carrying the products into the Deep Freeze Storage covering the entire distance from entry point A and the entire service Road S-2 has become virtually impossible due to severe congestion owing to heavy vehicular traffic, the plaintiff wanted to have an entrance from the front side when it planned for the Deep Freeze facilities and accordingly it got the plan sanctioned from the Municipal Corporation to open the gate towards GTK Road as shown at point R and the plaintiff also constructed a ramp after incurring expenses of Rs. 10 Lacs for the easy movement of the truck.
5. It is not only the case of the plaintiff that it has obtained permission from Municipal Corporation but the plaintiff by way of abundant precaution also wrote to the defendant seeking its no Suit No. 186/04 4 objection for opening a gate i.e gate R towards GTK Road vide its letter dated 19.12.2000 and the defendant vide its letter dated 7.3.2001 gave the requisite no objection.
6. It is also the case set up by the plaintiff that the ramp and other facilities within the premises of the plaintiff are as such that the refrigerated trucks entering the building through gate R will have to exit only from gate R and they cannot go out of the building through gate P as the ramp reaches its dead end within the building and likewise any vehicle entering into the premises of the plaintiff through gate P would have to exit through that gate only and from there through exit point Z and it cannot exit through gate R.
7. It is also the case set up by the plaintiff that the plaintiff started using the gate R for movement of the refrigerated trucks without any obstruction and without causing any inconvenience to any person as once, truck enters the service Road S-1, it will cross the space available for vehicular traffic on Service Road S-1 within a fraction of a second.
Suit No. 186/04 5
8. It is on 14.10.2002, the plaintiff received a notice from the defendant to the effect that usage of Gate R by the plaintiff is creating hindrance in the flow of the traffic through Service Road A-S1-Z and also because of the operation of gate R, the defendant is not able to record the products stored and processed in the cold storage of the plaintiff which may result in the evasion of market fees/loss of revenue of the defendant and the plaintiff was called upon to close the gate R within the period of 7 days from the receipt of the date of notice. Another ground taken in the notice was that PWD is proposing to construct a sub-way in the near future and as such, also the gate at point R needs to be closed. On receipt of the notice, the plaintiff met the Chairman of the defendant on 16.10.2002 apprising him about the costs incurred by it in the preparation of ramp and that the gate has been opened after obtaining due sanction and permission including the defendant and since the defendant had not raised any objection at the time when gate at point R was constructed, it could not do so now and it was impressed upon t he Chairman of the defendant that the plaintiff will be put to immeasurable loss and forced to multifarious litigation with its client with whom it has prior commitment and though initially the Suit No. 186/04 6 Chairman assured that the letter would be withdrawn, but later on 18.10.2007, the officers of the defendant threatened the plaintiff to seal the premises by 21.10.2002 if the plaintiff fails to close the said gate R.
9. It is also the case set up by the plaintiff that many other occupants of the properties facing the GTK Road have gates which open towards the GTK Road. It is stated that the defendant is a market body for the welfare of the agriculturists and cannot act in dictatorial manner and in case gate R is closed, the entire basement/Deep Freeze operations of the plaintiff would come to standstill and would ruin the plaintiff and the decision of the defendant is without any jurisdiction and is against the principles of natural justice and equity.
10. The defendant contested the suit and on merits submitted that the plaintiff be put to strict proof regarding authorization of Shri Sanjay Aggarwal (however averment made in this regard have not been specifically denied).
11. It is also stated that the Delhi Agricultural Marketing Suit No. 186/04 7 Regulations Act has been repealed and has been superseded by the Delhi Agricultural Produce Marketing (Regulations) Act, 1998 and as per rule 12 of the Old Act and Rule 15 of the New Rules, licence is to be obtained for the trade of Fruit and Vegetable in the case of running of cold storage in category D. . It is also stated that no licence has been obtained by the plaintiff.
12. It is also stated that as per Rule 15 (5), the market committee is empowered to regulate the entry of person and vehicles to the market yard and in view of the said provision, the entry of all vehicles are regulated by the APMC at various check posts and gate passes indicating the quantity of produce, name of the consignee and consignor are issued after charging per trip fees which as per Section 62 is 1% of the market fees on total sale of fruit and vegetable sold and as per Section 55 of the Act, the market fees shall be paid by the commission agent to the market committee. It is stated that the main source to ascertain and collect the market fees is the gate pass which is issued at the time of entering the goods in the market yard otherwise it is not possible for the committee to deploy staff and Suit No. 186/04 8 record the sale of about 2000 Commission agents working in the market and as and when the goods are kept in cold storage are sold, the commission agents are under obligation to pay the market fees.
13. The defendant has also averred that since the plaintiff has opened the gate on GTK Road, it has become most difficult for the marketing Committee to control the arrival of fruit and vegetables which are being entered into the plaintiff's cold storage, without having entry from the regulated gates of New Subzi Mandi and there are definite chances for the evasion of market fees i.e the Government revenue, as the traders are operating from the inside Market yard and they can receive their goods through this cold storage which entered through the gate of the plaintiff without entry of the prescribed gate passes and has stated that it is in violation of bye law No. 29 of Azadpur Agriculture Produce Marketing Bye Laws which reads as under:
"Storage (1) The Agricultural Produce brought into the market when unsold shall be stored in the godown owned or hire by the licensed trader for that purpose with prior intimation to the Committee. The goods so stored shall be weighed in the presence of the seller or his representative at the time of storing and an Suit No. 186/04 9 acknowledgments indicating the time and quality of the goods shall be given by the Committee Agent to seller.
(2) The owner of the godown in which agricultural produce has been stored or is withdrawn shall intimate the committee about the stored produce on form B-2.
(3) The Committee may issue such directions, as it thinks necessary for regulating the storage of agricultural produce in the market area."
14. The defendant has denied that the plaintiff has obtained requisite permission from all concerned authorities and that notified items such as fruits including imported fruits are also being stored in the cold storage of the plaintiff.
15. It is denied that the plaintiff in order to ease the traffic movements planned to have entry gate of the vehicles from the front gate i.e gate at GTK Road and it is stated that rather it has created chaos in the traffic most of the time and it adversely affect the general traffic on GTK Road. It is stated that even PWD has taken objection to the same and Junior Engineer of PWD has lodged a complaint in the PS Adarsh Nagar in this regard which is likely to construct sub way at this place and that Suit No. 186/04 10 plaintiff has not obtained any sanction from PWD. With regard to letter dated 19.12.2000, he has submitted that it was sent without the approval of competent authority and is non est as the person who had granted the same was not competent to grant permission on behalf of the defendant.
16. It is stated that the Deputy Secretary who has given the No Objection Certificate has given it without authorization and that the decision of Committee was that it has ' no role' in the matter and the note on the file of the defendant was that the defendant has no role to play in the same and as a result after the committee has passed a resolution in its meeting for the closure of gate, notice dated 14.10.2000 was issued to the plaintiff.
17. The defendant has also denied any assurance having been given by the Chairman for the withdrawal of the notice and has stated rather it is the plaintiff who sought time to close the gate. The visit to the premises of the plaintiff by the officials of the defendant on 18.10.2002 or extending any threats as alleged is also denied.
Suit No. 186/04 11
18. It is also stated that the activity like that of plaintiff Category D license is categorically specified in the Act and the rules for Cold Storage, and the defendant is in the process of finalizing the policy for asking to such cold storages to obtain license from the defendant for functioning in the market yard.
19. It is stated that since the inception the plaintiff has been operating from the inner gate and was doing the business successfully without opening Gate R and there is no question of suffering any loss. It has denied that the direction of the defendant is in violation of any law or contrary to the principles of natural justice and equity.
20. Replication was filed by the plaintiff controverting the pleas taken in the written statement and reiterating the facts as mentioned in the plaint.
21. On the pleadings of the parties my ld Predecessor framed the following issues on 23.5.2005 and treated issue No.1 as the preliminary issue but vide order dated 7.3.2006, my Ld Suit No. 186/04 12 Predecessor observed that it will be appropriate to record evidence and decide both the issues together.
1. Whether the suit is not maintainable inasmuch as plaintiff has no right to use the gate in question for the purpose of ingress and egress of agricultural produce by any means? OPD
2. Whether the plaintiff is entitled to injunction as claimed by it? OPP
3. Relief.
22. The plaintiff had examined two witnesses namely Anil Dwivedi as PW1 who is the general manager of the plaintiff and PW2 Shri Joginder Singh who is the liasioning officer of Keshav Agro Limited, a client of the plaintiff.
23. On behalf of the defendant, Shri B.L. Sharma, Deputy Secretary of defendant has been examined as DW1 and Shri Suresh Kumar, Assistant Secretary of the defendant as DW2.
24. PW1 in his affidavit filed by way of evidence has deposed in terms of the averments contained in the plaint and has proved the resolution of the board in his favour as Ex. PW1/1, lease deed issued by DDA in favour of the plaintiff dated 8.12.1977 Suit No. 186/04 13 with regard to the suit property as Ex. PW1/2 and the site plan in which various portions have been shown has also been proved as Ex. PW1/3. The letter dated 19.12.2000 seeking No Objection from the defendant as Ex. PW1/4 and the letter dated 7.3.2001 by the defendant to the plaintiff giving No Objection as Ex. PW1/5. He has also exhibited the plan sanctioned by the MCD as Ex. PW1/6 and the notice dated 14.10.2002 from the defendant to the plaintiff as Ex. PW1/7. He has also proved the letter dated 16.10.2000 and 17.10.2000 as Ex. PW1/8 & PW1/9. He has also testified that plaint Ex. PW1/10 is signed by Shri Sanjay Aggarwal.
25. In his cross-examination, the witness has stated that the minute book authorising Sanjay Aggarwal to sign, verify and file the plaint has been brought by him and that the minute dated 20.3.2006 authorising him has also been brought by him. The arguments advanced by ld counsel for the defendant that the witness has not been able to prove the authorisation in favour of himself as well as Sanjay Aggarwal cannot be appreciated inasmuch as in the written statement, it is not specifically denied that Sanjay Aggarwal is not competent to sign and verify the Suit No. 186/04 14 pleadings and file the suit. Once the witness has brought the document and have been perused, it cannot be said that the original should have been placed on record.
26. This witness has explained in his cross-examination that ;in the cold storage, all kind of food items such as processed as well as vegetables and fruits, dry fruits, ice cream and butter are stored including imported fruits and the above noted items are stored by the license traders who are operating in Azad Pur Mandi against storage payment. He has also stated that the dry fruits, fresh fruits and vegetabls which are stored in the cold storage are received from the market premises from the commission traders and rest of the articles like butter, ice creams, frozen juices, concentrates, chocolates and cheese are received from gate R shown in Ex. PW1/3.
27. He has admitted that plaintiff has not obtained any license from APMC for the business of cold storage but has denied that without obtaining license of category D the plaintiff cannot run such cold storage or that the plaintiff is running the business of cold storage illegally and unauthorizedly.
Suit No. 186/04 15
28. Though in the plaint, it is stated that in the other cold storage, such gates have been opened but in his cross- examination, the witness has stated that he is not aware about the business activities of other cold storage and he did not know whether gate of other cold storage open within the market premises or outside the market premises. He has denied that permission from APMC was manipulated in collusion with B.S. Mann, Deputy Secretary of APMC or that B.S. Mann Deputy Secretary was not competent to give such permission or that Shri B.S. Mann was never authorized to give permission to the plaintiff to install gate at point R. This witness has denied that PWD and traffic police are also concerned authority to give permission to install gate at point R.
29. He has admitted that he was informed by APMC about the complaint and has shown his ignorance about complaint by PWD in writing to the defendant against the plaintiff regarding construction of gate at point R. He was not cross-examined regarding the expenditure incurred on ramp. The witness has denied that the plaintiff had malafide intention of depriving the Suit No. 186/04 16 defendant of market fee and taking supply of fruits and vegetables directly without routing the same through the prescribed gates of APMC. However, no cross-examination was conducted on the witness with regard to the fact that the plaintiff could avoid the payment of such market fees.
30. PW2 in his examination in chief has stated that Keshav Agro Pvt. Ltd deals with fruit pulps and they used to store their products in the plaintiff from the rear gate and that no fees is payable by them as market fees because no good is sold in Azadpur Mandi by them. He has also stated that plaintiff company is using the Deep Freeze Facility for the purpose of keeping goods such as Ice Cream butter fruit pulp and are using the gate R for movement of trucks. In his cross-examination, he has admitted that the material is being deposited directly in the plaintiff company without going to the defendant and he also admitted suggestion given to him that Keshav Agro Private Limited does not conduct any business in the premises of the defendant.
Suit No. 186/04 17Issue No.1:-Whether the suit is not maintainable inasmuch as plaintiff has no right to use the gate in question for the purpose of ingress and egress of agricultural produce by any means? OPD 31 The case as set up by the defendant in the notice dated 14.10.2002 is that the said letter is non-est and has been issued without any authorization by the then Deputy Secretary, who was not authorized to issue such letter to the effect that the defendant had no objection to the opening of gate R as the noting on the file by the Committee was to the effect that the Committee has no role to play in this regard. There was no averment that the said letter was sent in collusion with the plaintiff. The said plea has been raised for the first time during the cross examination of the plaintiff's witnesses. However, the fact remains that the alleged proceedings taken against the said Deputy Secretary had been so taken only after the filing of the present suit and not before that. In any case it is not disputed that the plaintiff had sought permission from the Municipal Corporation and since the gate was to opened in the market area and only for the purpose of effectively using the deep freezing facilities, the plaintiff deemed it fit to apprise the Suit No. 186/04 18 defendant about the same and the defendant in case there was any objection regarding the opening of the gate, ought to have conveyed such objection so that the objection could have been met or made to have been dropped by the plaintiff.
32. It is at least common case of the defendant that defendant had not raised any objection in the opening of the gate. The approval even if to be taken as no role to play will mean and signify that the defendant is hardly concerned whether such a gate is opened or not and it has no say with regard to the opening of the gate R as shown in the site plan. It is to be seen that the plaintiff had even mentioned the purpose for which the gate was to be opened and it is specifically mentioned that such entry is required for loading and unloading refrigerated trucks of non agricultural goods i.e ice cream, butter etc. It also mentions the reason that it is because of huge congestion and the request was to issue a no objection.
33. So it was clearly mentioned in the notice dated 19.12.2000 Ex.PW1/3 that the gate is to be used for non Suit No. 186/04 19 agricultural goods i.e ice cream, butter etc. Even if the contention of the defendant that the Committee resolved to the effect, that it has no role to play will amount to admitting that the version of the plaintiff that ice cream and butter are non agricultural good is correct. In case the defendant has considered these goods , as now argued by the counsel for the defendant that butter and milk products are agricultural goods as per schedule-I to the Delhi Agricultural Produce Marketing ( Regulation) Act,1998, in that event the Committee could not have even resolved that it has no role to play as it can not be disputed by the defendant and rather it is the own case of the defendant that it is the regulatory power in respect of all agricultural goods.
34. As per Delhi Agricultural Produce Marketing( Regulation) Act,1998 read with the rules thereof, the defendant has the authority to control the ingress and outgress of notified agricultural produce and as such Schedule-I will be of no help to the defendant as the defendant has to show further that ice cream and butter etc had been notified to be an agricultural produce. Section 3 & 4 of the Act clearly lays down that the Suit No. 186/04 20 defendant has to issue a notification with regard to articles of agricultural produce as mentioned in the schedule in order to make them notified as agricultural produce. In the absence of production of any notification in this regard it cannot be said that the items kept in deep refrigeration for storage purpose by the plaintiff are the notified agricultural produce.
35. It was well within the knowledge of the defendant that plaintiff is already using the gate for the items which are not to be kept in deep freezer and which are notified agricultural produce and on which the plaintiff is paying the market fees as applicable. By virtue of letter dated 19.12.2000 it was made clear by the plaintiff that another gate was to be opened by the plaintiff meaning thereby that the plaintiff wanted to have two entry points . In case the gate now to be opened was to be used as another entry point for agricultural produce, there was no occasion even for the Committee to pass a resolution that it has no role to play in the same. It will amount to saying that the defendant had no objection even if the entry of agricultural produce is made from two entries putting extra burden on the defendant . In such an eventuality the objection now being Suit No. 186/04 21 raised by the defendant that a common entry point had been made for all concerned so that they can regulate the ingress and outgress of vehicles carrying agricultural produce and collect the market peace as applicable in case same is made within the market area. So it be taken as it was not a notified agricultural produce then the defendant could not have any objection regarding the ingress and outgress specially when it is the own suggestion by the defendant to PW-2 that goods meant to be carried to deep freezer are not to be sold in the market area. In case it was a notified agricultural produce then also the version of the defendant that it has no role to play will amount to saying the plaintiff can open another gate for ingress and outgress of the agricultural produce and it hardly matters, the defendant.
36. DW-1, who is a Deputy Secretary with the defendant, in his affidavit filed by way of evidence has stated that the matter was inquired into from the Secretary of the defendant who has categorically denied about the directions for the issuance of the No objection certificate and it seems to be interpolation/addition and tampering which was never put before Suit No. 186/04 22 the Competent Authority. So the testimony of this witness is hear say, as he has stated that the matter was inquired into from the Secretary, who has not been produced and this witness has also not proved the resolution of the Committee. So far as DW-2 is concerned, he is a Deputy Secretary and he has simply stated that Sh. B.S. Maan was issued a major penalty charge sheet, certified copy of which has been placed on record as Ex.DW2/A. Even he has not proved on record any such resolution as mentioned in the written statement. The charge sheet served will be of no use it being an internal matter, and unless and until the exact resolution is placed and proved on record. So the defendant had even failed to prove that the letter Ex.PW1/4 granting no objection was not the resolution of the Committee.
37. DW-1 has admitted in his cross examination that the market fee of 1% is charged on the notified agricultural produce which is sold in the principle market yard. So as per him the market fee can be levied only on the items of agricultural produce which are notified. He has further stated that he has not produced the list of notified market produce. Though he has Suit No. 186/04 23 stated that he can file the same but the same has not been filed. He has further stated that he cannot say if any market fee has been charged with respect to the goods such as cheese,chocolates, frozen juices, concentrates, butter and ice cream and has further stated that no market fee is payable on above items to Agricultural produce marketing Committee. In view of such a situation since the defendant can control only the ingress and outgress of the notified agricultural produce and charge market fee on the same, the defendant cannot charge any market fee on the items kept in deep freezer mentioned above being not notified Agricultural produce.
38. Counsel for the defendant had argued that by virtue of section 15(5) read with section 55 of the Delhi Agricultural Produce Market ( Regulation) Act, 1998 it has authority to regulate the entry of a person or vehicle and as such it has the authority to ask the plaintiff to close the gate. The said argument cannot be entertained. Section 15(5) of the Delhi Agricultural Produce Market ( Regulation) Act, 1998 reads as under:
Section 15(5) For the purposes of Suit No. 186/04 24 regulating the entry of person and of vehicular traffic into the market in accordance with the provisions of clause
(a) of sub-section (2), of Section 55, no person, other than one having a valid license intending to carry on the business of selling and purchasing agricultural produce shall enter or attempt to enter the market when directed not to do so by an officer authorized by the marketing committee in this behalf.
Explanation-- For the purpose of this clause, "person" shall include a vehicle.
39. It is absolutely clear that it relates to a case where the business is solely of marketing of agricultural produce T goods in question are not notified agricultural produce no they are being sold in the market as per suggestion given to DW-2 and admitted by DW-2 . DW-1 has also admitted that the articles are not notified agricultural produce which are entered through gate R.
40. It is also argued on behalf of defendant that by virtue of section 62 the defendant has the power to levy and collect the market fee.Section 62 Delhi Agricultural Produce Market ( Regulation) Act, 1998 reads as under:
Suit No. 186/04 25
Power to levy and collect market fee - Every Marketing Committee shall levy and collect such fee (hereinafter referred to as the "market fee") not being in excess of, or less than, the amount determined by the Government by notification published in the official Gazette from every purchaser of notified agricultural produce sold in a market area.
Provided that the amount to be determined by the Government shall not be less than one rupee per one hundred rupees of the sale price of the notified agricultural produce.
41. The argument is untenable as it relates to notified articles which is sold in the market. Both the conditions are not applicable. Learned counsel for the defendant has argued that by virtue of section 65 Delhi Agricultural Produce Market ( Regulation) Act, 1998 the defendant has authority to collect market fee from Commission Agents. Section 65 Delhi Agricultural Produce Market ( Regulation) Act, 1998 as under:
Collection of market fee from commission agents-- Where sale or purchase of notified agricultural produce in the market is made through a commission agent, the Suit No. 186/04 26 market fee, if not paid to the Marketing Committee under sub-section (6) of Section 61, shall be collected from such commission agent in the manner hereinafter given, namely----
(a) The market fee payable under this Act shall be paid by the Commission agent at such intervals as may be specified by the Marketing Committee in the bye laws;
(b) Every commission agent shall furnish periodical return showing receipt of agricultural produce by him and his turn-
over to the Marketing Committee on such dates as may be specified in the bye-laws;
(c ) Every commission agent shall pay to the Marketing Committee in the manner and at such intervals as specified in the bye-laws the full amount of the market fee due from him under Act, according to the return refer to in the clause (b) and shall furnish the receipt showing payment alongwith such return;
42. Ld. counsel for the defendant has argued that by virtue of section 55 (2) of the Act it has authority to regulate the entry of a person and vehicular traffic and examination of contents of vehicle etc is not sustainable Section 55 (2) of the Act reads as under:
Without prejudice to the generality of the foregoing provisions, a Marketing Committee Suit No. 186/04 27 may
(a) regulate the entry of the persons and of vehicular traffic into the market;
(b) supervise the conduct of those who enter the market for transacting business.
(c ) grant, renew, refuse suspend or cancel licenses;
(d) provide for settling disputes arising out of any kind of transaction connected with the marketing of notified agricultural produce and all matters ancillary thereto;
(e) prosecute persons for violating the provisions of this Act and to the rules regulations and bye-laws made thereunder;
(f) maintain and merge the market, including the regulation of admissions to, and conditions for use of, the market;
(g) regulate the marketing of notified agricultural produce in the market area and the market, and the weighment, delivery of and payment for, such agricultural produce;
43. Even the said argument under the said section goes against the defendant. DW-1 has admitted that till date it has not come across with any case regarding concealment or evading of market fees under the garb of non marketing agricultural produce, the plaintiff is keeping notified agricultural produce in the deep freezer and selling the same in the Suit No. 186/04 28 market. It is also not disputed that the gate was in use for the last one year and it is also not the case of the defendant that the plaintiff was indulging in any malpractices . It is also not the case of the defendant that some definite incidents has come to its notice that the gate is being misused for the purpose of evasion of market fee. Mere possibility cannot be ground to close the gate especially when the defendant had the powers under section 55 & 58 of the Delhi Agricultural Produce Market ( Regulation) Act, 1998 to effect seizure and can regulate the entry. Only in cases after any seizure has been made and if it is found that the plaintiff is misusing the gate then the defendant would be well within his right to exercise all the powers. Otherwise not. The arguments that under section 59 of the Delhi Agricultural Produce Market ( Regulation) Act, 1998 the defendant has the authority to remove the encroachment is not tenable. Section 59 of the Delhi Agricultural Produce Market ( Regulation) Act, 1998 reads as under :
Removal of encroachment- Any officer or servant of the marketing committee or the Board duly empowered by the Chairman of the Suit No. 186/04 29 market Committee or Vice Chairman of Board as the case may be in this behalf shall have power to remove summarily any encroachment in any space in the market yard and sub yard and the expenses of such removal shall be paid by the person who has caused the said encroachment and shall be recorded in the same manner as arrears of land revenue.
Explanation - for the purposes of this section ; encroachment shall also include storing or exposing for sale any kind of agricultural produce at a place in the market yard and sub yard the use of which is prohibited by the Marketing Committee for purposes marketing.
44. First of all it has to be an encroachment and it is not the case then the same amounts to an encroachment. MCD has given an approval for the erection of the gate and the defendant had also not objected to the same. As such section 59 of the Act is not applicable.
45. DW-1 in his cross examination has admitted that he had seen the cold storage and to his knowledge the imported food and vegetables are stored in the cold storage are taken through the other gate. The goods cannot be taken from the other gate Suit No. 186/04 30 as demonstrated by the plaintiff in the site plan as the exit point of the cold storage can only be through the main gate. So it cannot be said that the market fees on notified agricultural produce can be levied . He has admitted that he cannot say that it has been detected that the imported fruits and vegetables or any other notified agricultural produce on which market fee is payable has been sold in the Azadpur market area without payment of the market fees.
46. He has admitted that he cannot say that plaintiff has ever evaded any market fees. He has also admitted that he has never informed the traffic department with respect to the inconvenience being caused to the opening of the gate by the plaintiff. This gains significance as one of the objection taken by the defendant is that PWD has objected on the ground of congestion of traffic to the opening of gate R and has placed a letter of PWD in this regard on record. The said letter has not been proved in accordance with law and only a photo copy of the same has been placed. No person from the PWD has been examined and as such that ground also do not survive. Issue No.1 is decided against the defendant as he has not been able Suit No. 186/04 31 to prove the same.
Issue No.2 -Whether the plaintiff is entitled to injunction as claimed by it? OPP
47. It is not disputed during cross examination of PW-1 that the plaintiff after the receipt of letter Ex.PW1/4 from the defendant also constructed a lawn incurring an amount of Rs.10 lacs for the purpose of the entry of the truck in the deep freezer. The only contention of the defendant in this regard is that the plaintiff do not possess any licence and that since the plaintiff is running the cold storage without any licence he is not entitled to any relief. The said argument is absolutely untenable as it is the own case of the defendant as set out in the written statement that the defendant is in the process of making rules for issuance of licence to persons running cold storage. It will mean that as on date the plaintiff was not supposed to have any licence. In this regard answer given by DW-1 in his cross examination has become relevant. He has stated that he do not know since when licences are being issued and that he do not know as to how many cold storage licence has been issued by the defendant , that he cannot produce the record of licences being issued by the Agricultural Produce Marketing Committee and has also Suit No. 186/04 32 admitted that there is no requirement for the Agricultural Produce Marketing Committee to issue licence to the cold storages .
48. It has to be seen that the defendant has not been able to show on record that the letter Ex.PW1/4 was issued unauthorizedly as resolution of the Committee as mentioned in the written statement has not been placed or proved on record. It is also not disputed that the plaintiff is using the said gate for the last one year before the notice dated 14.14.10.2002 was issued. It is not the case of the defendant that during such period any evasion of market fees was detected and the gate was being misused. The defendant has also failed to prove that the opening of the gate lead to conjetion of traffic. Rather on the other hand the plaintiff has been ablve to prove that the gate opened was duly authorized one and that it is using the gate only for ingress and outgress of only notified agricultural produce and as such the plaintiff is entitled to the relief sought for. The issue No2 is decided in favour of the plaintiff and against the defendant.
Suit No. 186/04 33Relief.
In view of the findings as above on issues, a decree for permanent injunction is passed restraining the defendant, its officials, members, agents, employees servants and representatives from interfering with the rights of the plaintiff in using gate opening towards the GT Karnal Road, shown as Gate R in the site plan in the property situated at 17 & 18 Azadpur, New Subzi Mandi Delhi or creating any objection in the ingress and outgress of the movement of the trucks of the plaintiff from gate R in the site plan. No orders as to costs. Decree sheet be prepared accordingly and the file be consigned to record room. Announced in open court ( Neeraj Kumar Gupta) 18th October, 2007 Addl. District Judge, Delhi.