Agriculture Produce Market ... vs Potato & Onion Merchant ...
1995 Latest Caselaw 986 Del

JUDGMENT

M. Jagannadha Rao, J.

(1) The Agriculture Produce Market Committee, Panchwati, Azadpur, Delhi (hereinafter called the Market Committee) is the defendant in the suit and has filed this appeal against the order passed by the learned Single Judge in Ia 7250/94 in Suit No. 1591 /94.

(2) The said I.A. was filed under Order 39. Rule I Civil Procedure Code by the respondent (M/ s Potato & Onion Merchants Association) (hereinafter called Merchants Association) for granting temporary injunction against the appellant. By order dated 22.8.94, the learned Single Judge held that the license given by the appellant-Market Committee to the respondent-Merchants Association dated 1.4.79, fell under Section 34 of the Delhi Agricultural Produce Marketing (Regulation) Act, 1976 (hereinafter called the Act) and could have, therefore, been revoked only after giving opportunity under Section 35(3). As no such opportunity was given the appellant was to be restrained from taking any action in pursuance of its letters dated 14.6.94,4.7.94 and 13.7.94.

(3) The main points arising in this appeal are :

(1)Whether the license dated 1.4.79 given by the Market Committee to the Merchants Association is a license falling under Section 34 of the Act which could be revoked only by issuing a show cause notice under Section 35(3) or whether it is a license not covered by Section 34 but falling under Section 25(2)(c) and, therefore, by virtue of the very terms of license which provided for revocation by simple notice, it could be revoked ?

(2)Whether, having regard to the facts of the case and Survey Report disclosing large scale malpractices by the office bearers of the Association in the manner of allotment of platforms to members or others and the report of lakhs of premiums being collected by the Association, it is a fit case for exercise of discretion to grant injunction in favor of the plaintiffs-respondents?

The following arc the facts :

(4) The respondent-plaintiff Association contended in the plaint that it was a company registered under the Companies Act, 1956 and has 213 members, that the Company mainly looks after the interests of its members and interacts with the - Market Committee (defendant-appellant), in regard to the matters pertaining to the , requirement of space and other facilities/affairs etc. The Market Committee has yards located at different sites to cater to the businessmen dealing in fruits and vegetable in Azadpur Mandi. The Dda had entrusted platforms along the railway line in New Subzi Mandi, Azadpur, Delhi to be used as (storage and auction) platforms and possession of these platforms was handed over by the Dda to the Market Committee in 1979, the Market Committee granted a license on 7.9.79 (w.e.f. 1.4.79) to the Merchants Association to be used by its members for wholesale business including loading and unloading, storage and no retail sale & was supposed to be carried out. The Association, after taking possession of platforms allotted various sheds/spaces in favor of allottees who were its members and engaged in wholesale business of potato and onion. On 14.6.94, the Market Committee sent a note to the Merchants Association that the Committee had received complaints that the Association had been misutilising the sheds and was allowing non-allot tees to store and dispose of their arrivals (potato and onion) after charging exorbitant amounts in the shape of rent, that this was revealed by a survey conducted on 8.6.94 and 9.6.94 and the charges made against office bearers were found to be correct. Plaintiff preferred an appeal dated 22.694. On 4.7.94, the Committee asked the plaintiff to handover vacant/peaceful possession of sheds in 30 days. Though the license expired on 8.6.94 the license was continued since the fee per sq, foot was enhanced and was being paid by the Merchant's Association. The suit was filed in July, 1994 by the respondents and Ia 7250/94 was filed for injunction under Order 39 Rule I Civil Procedure Code and temporary injunction was granted as stated earlier, not to implement to the above notices.

(5) In the counter in the 1.A., the appellant-Market Committee contended that the license granted to the Merchants Association on 7.9.79, expired on 31.3.80, the Market Committee asked the Association to furnish a list of its members and wrote letters on 19.3.93,20.5.93,26.5.93 and 29.2.93 but the information was not given by the Association. On 13.7.94. all commission agents dealing with potato and onion and working in New Subzi Mandi, Azadpur were asked to furnish information in proforma so that the Market Committee could make individual allotments to the commission agents on the basis of quantum of business, and amount of market fee paid by them during prior 3 years, that 243 persons responded, that the Committee is interested in maximum utilisation of space, that the Association was allowing persons who do not have trade licenses to use the platforms, that the survey dated 8.6.94 and 9.6.94. revealed wholesale malpractices by the Association and collecting lakhs of rupees from individuals while collecting and paying only at Rs. 75 per sq. ft. to the Committee, that the Committee could cancel the license without notice. It was stated that the very license contained a clause permitting the Market Committee to revoke the license without any show cause notice but only with a I month notice before cancellation. The Committee has now decided to make direct allotments of the platforms to see that right persons got the allotments so that the Association cannot indulge in malpractices. The Association is already in huge arrears. The plaintiffs are, by their conduct also, not entitled to any temporary injunction as such one person alone had been allotted Phar 2 on payment of Rs. 4.75 lakhs (Ganga Traders). Similarly 8 to 9 cases have been detected. For Phar 3,4,27, actual allottees have not come forward for re-possession. Some others M/s. Pandan Onion Co,. Yudhishtar Lal, Shyam Fruit Co. are found in possession. They are not

(6) Onion dealers but are ginger dealers. other power. The condition in the license permitting simple termination without any show cause though with one month notice was not valid in view of Sections 34 and 35(3). Hence, the notices issued by the Market Committee could not be implemented against the Association.

(7) In this appeal, we have heard the learned Counsel for the Market Committee (appellant) and the Merchants Association (respondent). We have already set out the points that arise for consideration. We shall now deal with the two points. Point I

(8) As the respondent Association-plaintiff proceeded on the basis that the license dated 7.4.79 executed by the Market Committee (which was to expire on 31.3.80) was continued by the Market Committee and that the said license continued to be the basis of its rights, we shall presume in favor of the Association that the said license was, for all practical purpose, in force at the time of its revocation.

(9) A reading of the Act shows that there are two separate provisions for grant of license. One is contained in Section 25(2)(c) and the other is contained in Section 34. In fact Section 25(2)(c) and Section 25(2)(h) and (i) are general, while Section 34 is a particular aspect of this power.

(10) We shall first refer to the general power of licenses under Section 25 under the heading (A) and then to the specific power to grant trade licenses under Section 34, under heading (B) herein below. (A) General power to grant licenses and to cancel or suspend them under Section 25(2)(c), (h) and (i)-

(11) The Committee is a statutory body under Section 6 of the Act and under this section every market committee is a body corporate. It has a common seal and it can acquire and dispose of the property movable or immovable. Section 25 enumerates the powers and duties of the Market Committee.

(12) It has power under Section 25(2)(c) "to grant license, suspend or cancel license" and under Section 25(2)(f) to maintain and manage the market, including the regulation of admissions to, and conditions for use of the market and under Section 25(2 )(g) to regulate the marketing of agricultural produce in the market area of the market, and the weighment or delivery of, or payment for, such agricultural produce; under Section 25(2)(h) and under Section 25(2)(i) arrange for the collection and acquire, hold and dispose of any movable or immovable property (including any equipment necessary for the purpose of efficiently carrying out its duties). The power under Section 25(h) again also implies the power to grant licenses. Section 25(2)(c), (h) and (i) read as follows -

"25(2)(C) grant, renew, refuse, suspend or cancel licenses', (h) arrange for the collection -

(I) of such agricultural produce in the market area in which all trade therein is to be carried on exclusively by the Government by or under any law for the time being in force for that purpose, or

(II) of such other agricultural produce in the market area, as the Administrator may, from time to time, notify in the Official Gazette (hereinafter referred to as the notified produce);

(I) acquire, hold and dispose of any movable or immovable property (including any equipment necessary for the purpose of efficiently carrying out its duties) ;"

(13) As far as the license that is granted by the Market Committee to the Association in 1979 is concerned, it is, in our view, a license granted by virtue of the general power under Section 25(2)(c) read with Section 25(2)(h) and (i) and that license is not to be confused with the specific type of trade license under Section 34 of the Act. We shall elaborate this aspect in greater detail lower down. (B) Specific type of trade license which can be granted under Section 34 of the Act: It will be seen that this section deals with a specific or particular type of license.

"34.Grant of licenses :-

(V) Subject to rules made in this behalf, a Market Committee may after making such inquiries as it deems fit, grant or renew a license for the use of any place in the market area for the marketing of agricultural produce or for operating therein as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or in any other capacity in relation to the marketing of agricultural produce or may, after recording its reasons in writing therefore, refuse to grant or renew any such license; Provided that the Director may, where a Market Committee has not been constituted or has not started functioning subject to any rules that may be made in this behalf, grant a license for the marketing of agricultural produce or for operating in any market area as a trader, commission agent, broker, processor, weighman, measurer, surveyor, warehouseman or any other capacity.

(2) A license granted under Sub-section (1)- an (a) shall be in such form, valid for such period, subject to such terms, conditions, restrictions and limitations as may be prescribed and such restrictions may include a provision prohibiting brokers and commission agents from acting in any transaction (except between a trader and a trader) in respect of agricultural produce other than poultry, cattle, sheep and goats and such other agricultural produce as may be prescribed; and

(B) may also specify- (i) the manner in which and the place at which auction of agricultural produce shall be conducted and bids at such auction shall be accepted; (ii) places at which weighment and delivery of agricultural produce shall be made in any market or market area and on payment of such fees as may be prescribed. "

(14) A reading of the above section would show that the market committee could grant or renew a license for the use of any place in the market or market area for the marketing of agricultural products or for operating trading as a trader, commercial agents, broker, processors, laymen, surveyor, warehousemen or in other capacity in relation to the marketing of agricultural products. It also shows that license under this Section is to be granted in such form and subject to such terms and conditions, restrictions and limitations as may be prescribed and it may also specify the manner in which and the place at which auction of agricultural prod nets shall be conducted and bids accepted and place where weighment and delivery of agricultural products shall be made in the market or the marketing area.

(15) Inasmuch as the respondent Association is contending that the license that has been granted to it must be deemed to be under this Section 34 and therefore cancellation or suspension thereof could have been done only after show cause notice under Section 35(3) of the Act, it is also necessary to set out Section 35:

"35 Power of cancel or suspend licenses

(1) Subject to the provisions of Sub-section (3) a Market Committee may, for reasons to be recorded in writing, suspend or cancel a license granted or renewed under this Chapter - (a) If the license has been obtained through willful misrepresentation or fraud; (b) If the holder of the license or any servant or any one acting on his behalf with his express or implied permission commits a breach of any of the terms or conditions of the license; (c) If the holder of the license in combination with other holders of licenses commits any act or abstains from carrying out his normal business in the market with the intention of willfully obstructing, suspending or stopping the marketing of agricultural produce in the market area; (d) If the holder of the license has been adjudged an insolvent and has not obtained his discharged; or (e) If the holder of the license is convicted of any offence under this Act.

(2) Notwithstanding anything contained in Sub-section (1) but subject to the provisions of Sub-section (3), the Director may, for reasons to be recorded in writing by order, suspend or cancel an license granted or renewed under this Chapter.

(3) No license shall be suspended or cancelled under this section, unless the holder thereof has been given a reasonable opportunity of showing cause against the proposed action.

(16) A comparison of the provisions set out under (A) and (B) above, in our opinion, makes it clear that Section 25 deals with the general powers including the power to give licenses, suspend or revoke them, hold and dispose of property, while Section 34 is applicable only to cases where a specific type of license is granted, namely, "for the use of any place in the market area" for the marketing of agricultural product or for operating the agency as a trader etc. etc....... or in other capacity in relation to the marketing of the agricultural products".

(17) The tradesmen in this case now before us who are having shops separately have admittedly been granted separate trading licenses under Section 34 by the Market Committee because they actually market agricultural produce or operate as traders commission agents, broker, processor, weighman, measurer, surveyors, warehouseman or in any other capacity.

(18) The specific type of license under Section 34 (in respect of which a show cause notice is necessary before revocation) has a prescribed form as per Rule 12, but the license to be granted under Section 25(2)(c) has no prescribed form. Wer shall refer to the license granted on 7.9.1979 to the respondent-Association and show that it is not in the form prescribed under Rule 12. The license dated 7.9.1979 given to the Association is as follows :-

"licenseDEED This Deed Of license made on this 7 day of September, 1979 between Agricultural Produce Market Committee, Azadpur, Delhi-110 033 (hereinafter called the Licenser ) as first party and M/s. Potato and Onion Merchants Association, New Subzi Mandi, Azadpur, Delhi -110 033 through Shri Ashok Kumar, Hony Gen. Secy. (hereinafter called the licensee) as second party. Whereas:--

I. The Delhi Development Authority, New Delhi, has constructed three platforms along the railway line in New Subzi Mandi, Azadpur, Delhi- 110 033 to be used as storage and auction platforms. (2) And the Delhi Development Authority had agreed in the meeting held in the room of its Vice Chairman, on the 8th March, 1979 to handover the possession of these storage and auction platforms to the Licenser subject to such terms and conditions as may be decided by it in due course, (3) And the licensee has approached the Licenser for the use of said platforms for the storage of Potato and Onion by its members on the payment of such charges as may be mutually agreed to. (4) And the Licenser has agreed to allow the use of these platforms by the licensee,

Now This Deed Witnesses As FOLLOWS- The Licenser hereby licenses and authorises the licensee at all times during the continuation of this license, to take the possession of the two sheds constructed along the railway line, opposite block "A" of the New Subzi Mandi, Azadpur, Delhi and do the following acts thereon :--

(I)

(A) That the sheds shall be used only for the whole sale business of Potato and Onion including loading and un-loading, storage and sales thereof. No retail sale (mashakkre) shall be allowed in any case.

(B) The space of the platforms shall be used only by such members of the licensee who are holding valid license granted by the licenser under the provisions of the Delhi Agricultural Produce Marketing (Regulation) Act, 1976.

(C) No person shall be allowed to use any part or portion of the platforms hereby licensed, if he is not in possession of a valid license granted by the Licenser.

(II) The licensee shall pay to the Licenser, license fee for the use of these sheds at the rate of 0.50 paisa per sq. ft. These charges shall be provisional subject to the adjustment as may be decided by the Delhi Agricultural Marketing Board, Delhi.

(III) The Licenser shall be entitled to terminate this license at any time after giving one month's notice to the licensee. On the termination of this license, the licensee shall hand over the vacant possession of the said sheds to the Licenser without any demur.

(IV) In case the licensee fails to hand over the vacant possession after termination of the license, the Licenser shall be entitled to take in possession the goods of the licensee from the platform and enter upon the said platform. The goods taken possession of, will be disposed of by the Licenser in the manner as deemed proper by it.

(V) This license, will come in force from the 1st April, 1979 and shall remain in force till 31st March, 1980

(VI) The license fee shall be paid by the licensee to the Licenser every month in advance by the 5th of the month to which the license fee relates.

In Witness thereof the Licenser and the licensee afore-mentioned have set their respective hands and seals on this deed in the presence of witnesses"

(19) The above license given to the Association in 1979 totally differs from the standard from of license issued to the individual traders by the Committee under Section 34. This particular form of license under Rule 12 is as follows :-

Form Of license For Category A, B, C, D & E Market Area ............................. S.No. of license ............................................... This license is granted to M/s. ..........................................subject to conditions prescribed hereunder. 1. Place of business for which license is granted.............................................. 2. Name of the Managing Proprietor or Manager of the Firm with parentage..............-............................................................................................ 3. Date from which the license takes effect........................................... 4. Date on which the license expires ................................................................. 5, Category of the license granted; I A. 2. B. 3. C 4. D 5. E

Secretary Place: Market Committee Date: (SEAL Of The Market COMMITTEE)

Conditions of license

(1) The licensee shall comply with the provisions of the Delhi Agricultural Produce Marketing (Regulation) Act, 1976 and rules and bye-laws framed thereunder and instructions issued from time to time.

(2) He shall not permit evasion or infringement of any of the provisions of the Act, the rules and bye-laws and shall report in writing to the Market Committee any evasion or breach which comes to his knowledge.

(3) He shall produce for inspection his license, on demand, to the Director or any other officer authorised by him in this behalf or the Secretary of the Committee against a receipt to be given to the licensee in this connection.

(4) He shall conduct his business honestly and properly according to principles of fair dealing.

(5) He shall display his license at a conspicuous place in his business premises.

(6) He shall keep his business premises clean and in a suitable condition for storage of agricultural produce.

(7) He shall not boycott or encourage boycott of any other licensee.

(8) He shall not indulge in activities and practices which are detrimental to the interest of the trade and proper functioning of the market.

9. He shall not take or continue in his service any licensed weighman, measurer, surveyor or palledar.

10. He shall be responsible for the safe custody and protection of agricultural produce brought to his shop for sale or storage.

11. He shall not form a pool or combination with other buyers for eliminating competition and shall not make or abet any attempt to do so in order to deprive the seller of a fair price of his produce.

12. He shall, on the expiry or soon after termination of the license, surrender the same to the Committee.

13. He shall, when desired by the Committee or any officer authorised by it furnish correct information on the matters pertaining to his business relating to sales, purchase, storage, processing and transfer of agricultural produce.

14. The security shall be liable to be forfeited in Part C, in full by the Licensing Authority in case the licensee makes a breach of any condition of the license. "

(20) The license in Form A if issued under Section 34 requires particulars of business, place of business to be given including the name and style of the partnership. In the present case there is no contention on the part of the Association that they have made any application in terms of Form'A' so that the license could have been granted under Section 2(12). Rule 12 which deals with grant of license under Section 34, says that the person desirous of obtaining a license under section 34 shall apply in Form A or Din duplicate to the Secretary of the Committee in whose jurisdiction he wishes to carry on his business or marketing of agricultural produce and should deposit the requisite license fee with the Market Committee. The category of licensees under the rules are for traders, (wholesellers), including flour mills, oil expellers, dal mills, who purchase the agricultural produce to sell it after processing; commission agents carrying on business in the principal market or subsidiary market; brokers operating in principal and subsidiary markets, processors, warehousemen including cold storage and godowns, retailers having established premises for carrying on their business and selling to consumers only in the market area excluding the principal and subsidiary market; weighmen, measurer, surveyor and other similar market functionaries recognised by the Committee, palleder and transporters etc. The Association in the present case neither applied in Form A nor has it been granted license in Form A so as to come within Section 34 of Rule 12.

(21) Another important aspect of the matter is that if the respondent-Association wants to contend that the license is one under section 34, they have to show that they are "marketing agricultural produce" or operating as a trader, commission agent, broker etc. or in any capacity in relation to the marketing of agricultural prod uce. There is no such case possible for the Association because their work is not to market any produce nor to act as broker. The Association is merely a body which tries to act for the benefit of its members, the traders.

(22) Let us examine the aims and objects of the Merchants Association to see whether its activities can fit into Section 34. As per the bye-laws of the Association its aims and objects are as under :-

"THE Aims and Objects for which this Association is established are enumerated below:-

(A) To promote and safeguard the interest of the members of the Association in particular and potato and onion trade in general.

(B) To foster friendly feelings and unanimity among the members.

(C) To bring about and settle all kinds of trade disputes amongst (i) the members of the Association; or (ii) between a member and non- member; (iiJ) Partners of the member firms by Arbitration or through Dispute Sub Committee.

(D) To represent, plead and defend all legal and legitimate rights, privileges and affairs concerning the Association, in any Court of Law- or concerned authorities, local, central or other states

(F) To collect and compile commercial and economical data and other information in order to spread knowledge regarding potato and onion trade. "

(23) It will be seen that none of the above said aims and objects can be brought under the head of marketing of agricultural produce either as a trader, commission agent, broker etc.

(24) It is true Section 34 also uses the words license to a person "in any other capacity". But the activities of the Association, in our opinion, cannot even be brought under this clause. The words in the said clause take colour from the context and would require some direct relationship with the agricultural produce such as a trader, commission agent, broker, processor, weighmen, measurer, surveyor and warehouseman. The "other capacities" can refer to work a palledar etc. as referred to in Rule 12. The above words cannot, in our opinion, be referable to a remote relationship like allotment of spaces in the shed to traders etc. who in their turn deal with the agricultural produce. In fact, the Association does not pay any market fee for its activities. Section 33 which deals with regulation of marketing produce gives an indication as to the purposes for which license under Section 34 can be granted. It says that the license is for the use of the place in the market area for marketing the agricultural produce or to operate in the market area as a trader, commission agent etc. or in any other capacity. These are not the activities of the Association. We have already stated why the words "in any other capacity" are not also attracted.

(25) We, therefore, hold that the license is one granted under the general power in Section 25(2)(c) under the revocation is governed by the very terms of the license. We also hold that the license is not issued under Section 34 to the Association and hence the procedure of issuing a show cause notice under Section 35(3) is not attracted. Point is held in favor of the appellants.

(26) Point 2 : This point raises the question whether even otherwise there are any equitable circumstances in favor of the plaintiff-respondent Association for grant of temporary injunction. In the impugned noticeofterminationdatedl4.6.1994,itisstatedthata survey of the sheds was conducted by or on behalf of the Market Committee on 8.6.1994 and on 9.6.1994 and that the following serious illegalities were found. In this context, it is important that at the time when this notice was issued the Committee was being manned by the Administrator. The Market Committee was not under control of any elected body and, therefore, allegations of political motivation are absolutely out of place. The malpractices pointed out in the notice are as follows :- S. Name of the Corn- Shed Actual Occupant Remarks No. mission agent, who No. of the shed in (Amount of rent is stated to be an question, his being paid by allottee of the address in Nsm actual occupant said Assn. in Poma & Lie. No. of 'B' to allottee of shed and his category meant POMA) address in Nsm, for commission Azadpur. agent 81 M/s, Narain Dass Bhagwan Dass & Co. A-357, Nsm, Azadpur Lie. No. B-2087. 98 M/s Arun Kr. Ashwani Kr. & Co., A-353, Nsm, Azadpur, Lie. No. 1552. 1/2 portion of this shed shall be in possession of M/s Gulshan Kr. & Co., A-1154, Nsm, Azadpur and 1/2 portion shall be in From 1.7.92 rent is being paid 1/2 shed to M/s Gulshan Kr. & Co. Earlier occupant was paying rent to M/s. Inder Raj Subhash Kr. A-304, Nsm, Azadpur. 1 2 3 4 5 possession of Occupant is M/s. Arun Kr. allottee of Ashwani Kr. & Co., " shed and A-353, Nsm, Azadpur, he is stated Lic. No. 1552. to be paying rent at Rs.22000.00 per year since 1986. 9. M/s Shyarn Fruit 99 M/s Arun Kr. On rent Rs. 3600 Co., D-1412, Ashwani Kr. p.m. since 1984. Nsm, Azadpur. A-353, Nsm, Azadpur, Lic No. 1552. 10. M/s Tilla Ram 27 M/s Ganga Traders, Purchased @ & Co., A-274, A-1177, Nsm, Azadpur Rs. 4,75,000.00 Nsm, Azadpur. Lic. No. B-2073. from the two 2. M/s Raj. Kr. allottees six Subhash Chand, years back. A-305, Nsm, Azadpur.

(27) The notice further states that keeping in view the facts mentioned above it is evident that a number of Phars/sheds under the Poma are being unauthorisedly utilised and the allottees of shed (atone point of time) are unauthorisedly collecting huge funds in lakhs from the actual occupants who are getting surplus Additional arrivals particularly of onion stocks in their names. It also states that unauthorised utilisation as well as charging rent unauthorisedly are grave irregularities and hence immediate remedial action is required to be taken. The notice shows that after going through all the aspects of the case and after having close examination of the material, the Administrator was exercising powers under Section 25(2)(f) of the Act and all other powers as laid down in the said Act [i.e. Section 25(2)(c) and (h) & (i)] and rules and bye-laws. It is also ordered that the actual occupants of the sheds whose names are indicated in para 7 under Column 4 of the above said notice have to continue to occupy the Phar/shed as mentioned against their names. They shall pay the license fee, for the actual area occupied by them, to the Association from 1.6.1994. In case the Association does not accept the same, the license fee can be paid to the Committee.

(28) Thereafter, this was followed by a further notice dated 4.7.1994. It is necessary to refer to paras 11 to 15 of the said notice read as under :-

" 11. Whereas this office had been receiving complaints that the Phars under the said auction platforms (commonly known as Poma Shed) were being unutilized as the allot tee-firms of Poma were allowing non allot tees to store and dispose of their arrivals (mainly onion arrivals) and the allot tee-firms (who were not utilizing Phars for their own use) were charging exorbitant amounts in the shape of rent up to Rs. 5833.00 or so per month per shed. There were also complaints that though the aforesaid Poma Shed was the property of this market committee, yet some of the allot tee-firms of Poma had sold the allotted Phars to non-allottee parties unauthorisedly.

12. Whereas this market committee had been asking time & again to the aforesaid Association i.e. Poma to furnish detailed lists of its constituents members (commission agents) who were given allotment of phars by the said Association under the said shed and all other relevant details were also asked for.

13. Whereas the aforesaid Association has not furnished the required information to this office despite of a number of communications sent to them.

14. Keeping in view the serious complaints as indicated in para-11, the office of this market committee had decided to get the Poma Shed surveyed by a team of its officers and accordingly the survey was conducted on 8.6.94 & 9.6.94.

15. The survey conducted on 8.6.94 & 9.6.94 have revealed that a number of allot tee-firms of Poma have allowed to their licensed traders (non allot tees) to utilize their allotted phars & were charging exorbitant amounts as rent unauthorisedly from the actual occupants who were mainly dealing in onion. In one case it was also observed that phar was sold by allottee-firm of Poma to the actual occupant at the rate of Rs. 4.75 lacs. All these activities on the part of the allot tee-firms of Poma are illegal and are of grave nature.

15.1 That the licenses-association had allotted phars to M/s Shyam Fruit Co. of Shop No.D-1412, N.S.M., Azadpur who are dealing in Ginger only (returns filed by M/s. Shyam Fruit Co. from 1.4.93 to 31.3.94) clearly indicate that they had dealt in Ginger only.

15.2 The findings of the survey report have substantiated that phar(.s) (property of APMC. Azadpur) was/were sold out by the allottce(s) of potato & Onion Merchants Association to the actual user(s) as the allottee-firm of phar No. 99 had not turned up for repossession as he had sold out the phar unauthorisedly ata consideration-amount ofRs. 4.75 lacs to M/s. Ganga Traders. In two more cases where phars were given on rent to the occupants by the allot tee-firms have not claimed for re-possession. "

(29) The above notice once again sets out the serious malpractices which have been brought before the Administrator through the survey conducted. It is because of these malpractices that on 4.7.1994 revocation of the license was ordered requiring the Association to give possession within 30 days. This was followed up by a memorandum dated 13.7.1994 by the Market Committee staring that all commission agents dealing in onion and potato are advised to furnish information directly to the Market Committee in proforma annexures A & B and they are required to furnish information as per the record maintained by them.

(30) The express term of the license of 1979 which permits the committee revoke the license without any show court term governs the rights of the parties. We also held on Point I that a show cause notice as contemplated by Section 35(3) need not have been given. As the revocation is based on the malpractices which came to light in the survey, we are of the view that this is not a fit case for grant of injunction.

(31) While granting temporary injunction under Order 39, Rule 1 Civil Procedure Code this Court is entitled to and bound to take into consideration the facts on the basis of which the Administrator took the step of revoking the license. Having regard to the right of the Administrator to take steps under the particular terms of the license and having regard to the malpractices which had come to his notice, we are of the view that the Association was certainly not entitled to any temporary injunction under the equity jurisdiction of this Court. The facts of the case show that the action of the Administrator in passing the order of revocation was not arbitray. Huge malpractices to the tune of lakhs of rupees had come to the notice of the Administrator. Lakhs and lakhs of Rupees, according to him were involved in the said malpractices in the matter of allotting space in the sheds by the office bearers of the Merchants Association. In our view, it was truly a fit case where the Administrator could exercise his powers under the terms of the license and revoke the license.

(32) A contention was no doubt raised for the respondent that when the survey was conducted by and on behalf of the Administrator no opportunity was given to the Association. Such a contention on behalf of the Association can be countenanced only if Section 35(3) is attracted to the facts of the case. If the very term of the license can be lawfully be applied, no further inquiry or show cause notice was necessary.

(33) Several other subsidiary arguments were advanced before us for the appellant that the Association did not furnish the list of members when it was asked to do so. In reply the Association contended that the said letters were addressed by the Committee to the Association in the context of allotment of extra space The material on record shows that the Association, inspite of several letters by the Committee did not furnish the list of members and the list of the actual occupants of the sheds. This was because there were serious discrepancies in the number and names of members and the number and names of occupants. The Association failed to give the reply. The Administrator got a survey conducted on the spot and found malpractices and passed die orders mentioned above. In the result, therefore, no case is made out for grant of any indulgence to the Association. Point No. 2 is also held in favor of the appellant.

(34) It is true that normally an Appellate Court does not interfere with the grant of injunction under Order 39, Rule I CPC. But in this case we have taken the view that Section 35(3) of the Act was not applicable and that the Administrator was entitled to revoke the license under the very terms of the license and in exercise of powers under Section 25(2)(f) of the Act. Therefore, it is open to us in appeal to set aside the order of temporary injunction granted by the learned Single Judge. For the aforesaid reasons, the appeal is allowed and the injunction passed by the learned Single Judge is vacated and I.A. 7250/94 filed by the plaintiff-Association is dismissed.