Madhya Pradesh High Court
Akhilesh Kumar vs Secretary Krishi Upaj Mandi on 29 April, 2022
Author: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 29th OF APRIL, 2022
SECOND APPEAL No. 673 of 2017
Between:-
AKHILESH KUMAR S/O RAMESHCHANDRA
AGRAWAL, AGED ABOUT 33 YEARS, PROPRIETOR
SHIV INDUSTRIES SIRALI TEH. KHIRKIYA DIST.
HARDA (M.P.)
.....APPELLANT
(BY SHRI AVINASH ZARGAR, ADVOCATE )
AND
1. SECRETARY KRISHI UPAJ MANDI, KIRKIYA
DISTT. HARDA (M.P.)
2. OFFICER IN CHARGE KRISHI UPAJ MANDI SIRALI,
TAH. KHIRKIYA HARDA (MADHYA PRADESH)
3. DIRECTOR, MP KRISHI VIPNAN BOARD, 26,
ARERA HILLS, KISAN BHAVAN JAIL ROAD,
BHOPAL (M.P.)
4. THE STATE OF MADHYA PRADESH, COLLECTOR
HARDA, DISTT. HARDA (M.P.)
.....RESPONDENTS
(BY SHRI P. GALA, ADVOCATE)
T h is appeal coming on for admission this day, the court passed the
following:
ORDER
This Second appeal has been filed by the appellant/ plaintiff under
Section 100 of the Civil Procedure Code challenging the judgment and decree
dated 02.03.2017 passed by First Additional District Judge, Harda in Civil Appeal
No.09-A/2016, affirming the judgment and decree dated 18.02.2014 passed by the
First Civil Judge Class-II, Harda in Civil Suit No.11-A/2013, dismissing the suit
filed by the appellant/ plaintiff.
2. Plaintiff instituted a suit for declaration and permanent injunction to
the effect that the plaintiff is entitled for rendition of accounts and defendants be
Signature Not
SAN
Verified restrained from seizing weighbridge installed by the plaintiff, which was to be
Digitally signed by
KRISHAN KUMAR operated on BOT basis. It was alleged that due to inaction of the defendants the
CHOUKSEY
Date: 2022.05.06
12:26:44 IST
plaintiff suffered loss and despite this defendants insisted the plaintiff to deposit
the premium and upon failure the plaintiff was declared defaulter by the concerning
Bank.
3. Defendants by filing written statement denied the plaint allegations
and contended that the plaintiff has not suffered any loss and is not entitled for
any accounts and with intention to avoid recovery of dues of Rs.3,40,092/-
towards due premium, the suit has been filed. The defendants also took objection
about delivery of notice in terms of Section 67 of Madhya Pradesh Krishi UPaj
Mandi Adhiniyam, 1972 (in short "the Adhiniyam, 1972").
4. After recording the evidence, taking into consideration the
submissions of the parties and evidence available on record, learned both the
Courts below have dismissed the suit on merits as well as on the ground of non-
delivery of notice provided under Section 67 of the Adhiniyam, 1972.
5. Learned counsel for the appellant submits that both the learned
Courts have erred in holding that notice required under Section 67 of the
Adhiniyam was not delivered on the defendants. Notice (Ex.P.1) is available on
record and was duly delivered to the defendant No.1, Secretary, Krishi Upaj Mandi
Samiti, Khirakiya. By taking this Court to other findings, learned counsel for the
appellant submits that this second appeal deserves to be admitted on the
substantial questions of law proposed in the memo of appeal.
6. Learned counsel for the parties are heard at length and perused the
record.
7. It is apparent from the record that notice (Ex.P.1) is addressed to the
defendant No.1, Secretary, Krishi Upaj Mandi Samiti, Khirakiya, Tehsil Khirakiya,
District Harda and similarly the suit has also been instituted by impleading, i)
Secretary, ii) Officer-in-charge and iii) Director of State Krishi Vipnan Board and
not by impleading "Market Committee" in its corporate name or "the Board."
8. As has been provided under Section 7 of the Adhiniyam 1972, the
suit may be instituted in the name of Market Committee in its corporate name
which is also clear from the language of Section 67 of the Adhiniyam, 1972.
9. Section 7 and 67 of the Adhiniyam are reproduced as under :
7. Establishment of Market Committee and its
incorporation. -
(1) For every market area, there shall be a Market
Committee having jurisdiction over the entire market area.
"(2) [Every Market Committee shall be a body corporate
by the name specified in the notification under Section 4.]
It shall have perpetual succession and a common seal and
may sue and be sued in its corporate name and shall
subject to such restrictions as are imposed by or under this
Act, be competent to contract and to acquire, hold, lease,
sell or otherwise transfer any property and to do all other
things necessary for the purposes of this Act :
(3) . . . . . . . . . . ."
"67. Bar of suit in absence of notice. -
No suit shall be instituted against the Board or any Market
Committee, until the expiration of two months next after
notice in writing stating the cause of action, name and
place of abode of the intending plaintiff, and the relief
which he claims has been delivered or left at its office.
Every such suit shall be dismissed unless it is instituted
within six months from the date of the accrual of the
alleged cause of action."
10. This Court in the case of Bhagwandas Goyal Vs. Krishi Upaj
Mandi Samity 1992 MPLJ 998 (SB) and in Krishi Upaj Mandi Samiti
Banapur Vs. Chandra Shekhar 2009 (3) MPLJ 411 (DB) has held that
issuance of notice to the "Board" or "Marketing Committee" is mandatory and
without serving/delivery of notice under Section 67 of the Adhiniyam suit is not
maintainable.
11. Hon'ble Apex Court has in the cases of Chief Conservator of
Forests Vs. Collector and others (2003) 3 SCC 472 and Khetrabasi Biswal
Vs. Ajaya Kumar Baral and others (2004) 1 SCC 317, held that authority to
be named as plaintiff or defendant, as the case may be and if in the suit necessary
party has not been impleaded the order passed in nullity.
12. Admittedly, the agreement (Ex.D-3) between the parties was
executed in the name of Krishi Upaj Mandi, Upmandi Sirali, District Harda. As
such the notice was required to be issued/delivered in the name of "Marketing
Committee" under Section 67 of the Adhiniyam, 1972. But in the present case
neither the notice was issued/delivered in the name of "Marketing Committee" in its
corporate name or "the Board" nor the suit has been instituted by impleading them
as defendants.
13. Accordingly, the suit was not maintainable without
serving/delivering aforesaid notice to the concerned "Marketing Committee" or
"the Board" and even otherwise the suit which has been instituted against the
Secretary, Officer-in-charge and Director of State Krishi Vipnan Board and not in
the name of "Marketing Committee" or "the Board" is liable to be dismissed as not
maintainable.
14. In view of the aforesaid no illegality or irregularity is found to have
been committed by the learned Courts below in dismissing the suit.
15. Accordingly, this second appeal is dismissed in limine under
Order 41 Rule 11 of CPC without any order as to costs.
(DWARKA DHISH BANSAL)
JUDGE
kkc
