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Civil Revision No. 350 of 1966, decided ,on 3rd October 1966

S. 115, Order XXXIX, rr. 1 & 2‑Temporary injunction‑Application rejected by trial Court, holding that plaintiffs had no prima facie case, without considering pleadings‑Appeal dismissed by lower appellate Court on same ground‑Case involving important questions of law and facts‑Prima facie case‑Balance of convenience in favour of plaintiffs‑Plaintiffs likely to suffer irreparable loss‑Temporary injunction issued by High Court.

Mst. Perveen Begum v. Raja Muhammad Sarwar Khan P L D 1956 Kar. 521 ; Mansur Ahmad v. Kalipada Chattopadhya and others P' L D 1959 Dacca 498 ; Mula Mal and others v. Emperor A I R 1929 Lah. 601 ; Municipal Committee, Gujar Khan v. Nizam Din and others P L D 1954 Lah. 599; Elammal and others v. The Emperor A 1 R 1928 Mad. 164 ; The Montgomery Flour and General Mills, Montgomery v. The Director Food Pur chases and others P L D 1957 Lah. 914 ; Manu and another v. Emperor 52 1 C 785; Ikram Bus Service v. Board of Revenue etc. P L D 1963 S C 564; Municipal Corporation of the City of Toronto v. Virgo 1896 A C 88 (P C); Attorney‑General for Ontario v. Attorney‑General for the Dominion 1896 A C 348 and Haji Ghulam Zamin and another v. A. B. Khondkar and others P L D 1965 Dacca 156 ref.

Dr. Nasim Hassan Shah for Petitioners.

Malik Zulfiqar Ali for Respondent. Dates of hearing: 19th and 20th September 1966.

This is a revision under section 115 of the Civil Procedure Code, against an appellate order of the learned Additional District Judge, Montgomery, dated the 25th of July 1966, whereby he dismissed the appeal of the petitioners, which they had filed under Order XLIII, rule 1 (r) of the C. P. C. and maintained the order of the learned Civil Judge, dated the 12th of July 1966, whereby he had refused a temporary injunction in a suit filed by the petitioners (plaintiffs).

2. The facts relevant for the purpose of the present revision petition are that the petitioners (who will hereinafter be called as plaintiffs) filed a suit on the 8th of July 1966, in the Court of the Administrative Civil Judge, Montgomery, wherein they claimed a decree:

(a) For a declaration that the interference by the respondent (Municipal Committee) and its employees in the wholesale and retail business of vegetables, fruits etc., of the plaintiffs in Sabzi Mandi situated in the land described in para. 1 of the plaint, was illegal, without lawful authority and mala fide;

(b) for a declaration that the refusal of the defendant (Municipal Committee) in not issuing' wholesale and retail licence for the sale of vegetables and fruits was illegal; without lawful authority and mala fide; and

(c) for a perpetual injunction that the ,defendant (Municipal Committee) or its employees, or agents should not interfere in the wholesale and retail of vegetables and fruits of the plaintiffs.

3. The case of the plaintiffs as given in the plaint, was that an area of 3 Kanals, 11 Marlas and 10 Sarsais, located in Khewat No. 1832, Khatooni No. 4020‑Min. Ihata No. 8737 as per Jama Band Sakni 1962‑63, situated in Block No. 3 Qasba Montgomery, belonging to the Provincial Government, is on lease with the Municipal Committee for over forty years for the pur poses of a vegetable market. It was averred that (these days) the land in question has been given by the Provincial Government to the Municipal Committee on lease at Rs. 1,000.00 per annum till the next settlement for the purposes of a vegetable market. The plaint went on to state that the defendant (Municipal Com mittee) had set up a public market on this plot of land for the purposes of the sale of vegetables and fruits and the said plot of land is given on annual lease in various lots bearing Nos. I, 2 and 3 for being used as Sabzi Mandi. The case of the plaintiffs was that they had been doing wholesale and retail business of the sale of vegetables and fruits on the site in question from a long time and that they had their own shops as well within the compound of the Sabzi Mandi. The plaintiffs stated that the Municipal Committee in its meeting on the 30th of April 1966, by means of Resolution No. 83, gave an approval for setting up a private Sabzi Mandi on the applications of certain private persons on some other land. In accordance with this resolution, the persons aforesaid have started construction of a private Sabzi Mandi near the Civil Lines on Church Road, Montgomery. The plaint further stated that the applicants who wanted' to establish that private Sabzi Mandi included certain members of the Committee and their relations. After the passing of the aforesaid Resolution No. 83, the Chairman issued an advertise ment that in the old public market (i.e. the site in question), there will be carried on the business of the sale of meat, fish, poultry and eggs so as to establish a market there for this purpose. The plaintiffs made protests but to no avail. The plaintiffs on the 20th of June 1966, put in applications for obtain ing licence of wholesale and retail vend of vegetables and fruits etc., to the Chief Officer, Municipal Committee, but the said officer detained those applications with him and stated that no order could be passed on them before the 1st of July 1966. The plaintiffs filed fresh applications on the 1st of July 1966, which the Chief Officer refused to receive. On the 3rd of July 1966, the Minister for Local Bodies, Government of West Pakistan, was on tour in Montgomery and the plaintiffs waited a delegation on the Minister and sought redress from him. The Minister advised the officers of the Committee to pass proper orders on the applications of, the plaintiffs. The plaintiff's again met the Chief Officer, but he turned them out after rebuking them. The plaintiffs on the 4th of July 1966, then sent further applications under Registered A. D. Post; receipts of which were attached with .the plaint. The officers of the Committee, instead of passing proper orders on these applications, sent their licence clerk and teh bazari clerk and other employees to the spot who demolished the chhappars of the plaintiffs and destroyed their vegetables and fruits. The plaintiffs went to the Town Hall and protested to the Chairman and the Chief Officer about the illegal action of the employees of the Committee, but they were told that the said employees bad gone to perform their duties under their orders and that, within the municipal limits, the business of vegetables selling could not be allowed except in the private market situated on the Church Road. The officers of the Committee refused to pass any orders on the applications submitted by the plaintiffs: The plaint further averred that all the aforesaid. activities of the defendant‑Municipal Committee and its servants and employees were illegal; without lawful authority, and mala fide.. There was no resolution saying that the previous public market of fruits and vegetables should be closed down and nor the Committee had any jurisdiction to do so. The land in question had been given by the Provincial Government to the Municipal Committee on lease for a particular purpose of Sabzi Mandi and without the permission of the Provincial Government this land could not be put to any other use. The refusal of the Municipal Committee to pass any orders on the applications of the plaintiffs was motivated with the sole object that a monopoly should be created in favour of the owners of the private market. The Committee possesses no jurisdiction to create any such mono poly and nor is there any bye‑law, by which the defendant, could refuse to pass orders on the applications of the plaintiffs. The business of the plaintiffs was being closed for the purpose of creating a monopoly in favour of the Members of the Municipal Committee and their relations. The defendant‑committee had no jurisdiction to destroy the business of the ‑plaintiffs or to demolish their chhappars. The plaint further stated that the defendant‑committee was insisting upon continuation of its illegal activities and was threatening to completely demolish the business of the plaintiffs. The defendant‑committee was also illegally challaning the plaintiffs due to which the plaintiffs were suffering irreparable loss. On these pleadings, the prayers, mentioned in the earlier part of this order, were claimed Municipal

in the plaint.

4. Along with the plaint, the plaintiffs put in an application under Order XXXIX, rules 1 and 2 'and section 151, C. P. C., wherein they pleaded that in view of the allegations in the plaint they had a good prima facie case; that the balance of convenience was in their favour and that if the temporary injunction was not issued, they would suffer an irreparable loss and injury. They pleaded that till the decision of the suit, a temporary injunction may be issued that the defendant‑committee or its employees should not interfere in the wholesale or retail business of the sale of vegetables and fruits of the plaintiffs. No written statement was filed to the allegations in the plaint, but a reply was put into the application for injunction. In the said reply, it was pleaded that the plaintiffs had no locus standi to file a suit; that the plaintiffs were doing no business in the Sabzi Mandi in dispute; nor they had otherwise the authority to carry on business in that place which was claimed to be the property of the Municipal Committee)‑without the permission of 'the Committee, In this way, at was averred that there was no question of irreparable loss to the plaintiffs or of any balance of convenience being in their favour. The establishment of a market for meat, poultry and eggs etc., in the place in dispute was for the convenience of the in habitants of the City and was a step towards cleanliness.

5. The learned Civil Judge held that there was no prima facie case and, therefore, refused the temporary injunction. The said finding was maintained by the lower Appellate Court. It is significant to mention that the injunction was refused solely on the ground that there was no prima facie case and the other con siderations, relevant for the purposes of grant of a temporary injunction, 'were not taken into consideration.

6. Learned counsel for the plaintiffs has argued that the Courts below have acted in the exercise of their jurisdiction with material illegality or irregularity in assuming as to what a prima facie case is. He states that a prima facie case means an. arguable case and if judged from that point of view, the case, as set out in plaint, does come up to this standard. For the meaning of the phrase prima facie case reliance has been placed by him on Mst. Parveen Begum v: Raja Muhammad Sarwar Khan (P L D 1956 Kar. 521) and Mansur Ahmad v. Kalipada Chattopadhya and others (P L D 1959 Dacca 498). He submits that the case should have been examined keeping the aforesaid definition of the prima facie case in view and the manner in which the lower Courts have proceeded to deal with this matter is not justified in law. He further submits that the observations which have been made in the orders of the lower Courts are of far reaching effect and if allowed to stand, they are likely to affect the merits of the main suit as well. I think there is sufficient force in the contentions of the learned counsel for the plaintiffs. The Courts below have acted in the exercise of their jurisdiction with or have refused to exercise it, due to a material illegality or irregularity in assessing as to what a prima facie case is. The Courts below have not adverted to various or all the pleadings of the plaintiffs and have not cared to see as to what are the points which are likely to arise for consideration. They have dealt with the case in a very cursory manner and holding that to grant or not to grant a licence is discretionary with the Municipal Committee, they have thrown out the application of the plaintiffs holding that they have no prima facie case. If that finding is allowed to stand, it is likely to prejudice the whole suit of the plaintiffs.

7. Learned counsel for the plaintiffs has raised the following points to show that he has a prima facie case:

(a) that a Committee has no authority to frame any bye‑law prohibiting persons from selling vegetables except at a particular place. For this proposition, reliance was placed on Mula Mal and others v. Emperor A I R 1929 Lab. 607 (D.B.). In this case, it was held that section 197 of the Punjab Municipal Act 3 of 1911, empowered the Municipal Committee to require licenses to be taken for manufacture, sale etc., of articles of food and drink and to, prohibit manufacture or sale in premises for which no licence is taken. A bye‑law, which allows sale of vegetables in one locality only, namely, the vegetable market appointed by the Municipal Committee, was illegal, inasmuch as, it impliedly takes away the right to sell vegetables in other places on obtaining a licence from the Committee. He also relied upon Municipal Committee Gujar Khan v. Nizam Din and others P L D 1954 Lab. 599, where it was held in headnote,

(b) that, "section 197(a) Punjab Municipal Act, only prohibits the sale in any place or places not licensed by the Committee, but does not authorise a Committee to acquire a sort of mono poly by confining the sale to a particular place".

(c) That as is evident from the averments in the plaint, the defendant‑Committee bad not passed any orders on the applications of the plaintiffs for getting licences and they were verbally told that no licence would be granted to them; because the Committee desired that the vegetables should be sold only in the new private market. The learned counsel relied on Ellammal and others v. The Emperor A I R 1928 Mad. 164 (D.B.),where Jackson J. held as follows:

"The Board is bound to grant a licence and if when it receives the application in due course, it confines itself to saying that it will not grant the licence, it is tantamount to passing no order on the application. Refusal to function under the Act is not passing an order's under the Act. The order must be intro vires and an order ultra vires is no order at all.

In the same report, Thiruvenkatachariar, J., held as follows:

"The Board cannot refuse to grant a licence on the ground that the location of the ‑private market in the Board's opinion, is detrimental to public health. The Board may to the owner under section 176 to carry out such works as may be considered necessary for rendering a private market a suitable one or they should acquire the owner's rights .in the private market under the Land ‑Acquisition Act as provided in section 180. Otherwise it would be confiscating private rights without compensation which intention cannot be imputed to the Legislature."

The learned counsel also relied upon The Montgomery Flour and General Mills, Montgomery v. The Director Food Purchases and others (P L D 1957 Lah. 914), wherein it was held that a petitioner has a vested right to get his application decided according to law and where the application of a petitioner is not being dealt with, a mandamus could issue directing the authority concerned to deal with his application in accordance with law.

The learned counsel also relied upon Mannu and another v. Emperor (52 1 C 785), wherein it has been laid down that a Municipal Board would not be justified in refusing to grant a licence properly applied for, under bye‑laws relating to dangerous and offensive trades, not on any grounds of public safety, health or public convenience, but merely in order to secure an advantage to itself in a dispute about a question of title with another person. It was further held that a suit would lie to compel a Municipal. Board to grant the plaintiff a licence for carrying on a particular trade upon a particular spot, provided always that the plaintiff was prepared to take out the licence subject to all the conditions prescribed by the bye‑laws and could satisfy the Court that the Municipal Board had refused him the licence for reasons wholly unconnected with .the public health, safety or convenience.

(c) That according to law, the Committee should deal with each application individually and pass separate orders thereon and wholesale reply of the Committee that it was not prepared to grant licences was no disposal of those applications For this proposition, reliance was placed on 1kram Bus Service v. Board of Revenue etc. P L D 1963 S C 564, where it was held:‑

"Even an administrative body, such as an R. T. A., is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged, in accordance with law. It was further held, that by insisting that the recipients of permits should only be limited companies, the R. T. A. were introducing classifications among the applicants, for which there was no warrant in any provision of the Act. The Act contemplates due consideration of applicants whether individuals or companies, on their merits. Here, however, the R. T. A., acting on their pre‑conceived notion and follow ing what was regarded as a matter of policy, laid down by Government, declined absolutely to give consideration on the merits to any application by any individual transporter

"By its refusal to consider the applications of individuals as contrasted with those of limited companies, the R. T. A. was clearly in this case legislating in so far as it was introducing, extraneous considerations as determinative of the eligibility of applicants for permit's contrary to the provisions of the Act. To this extent, it clearly exceeded its jurisdiction and attracted the superior Courts power of judicial review."

Relying upon the observations of the Supreme Court in the above case, learned counsel argues that in the instant case also firstly, there was no proper disposal of the applications of the plaintiffs, and, secondly, even if it be assumed that the refusal to consider these application constituted the disposal of those applications, then that disposal was illegal; because it was moti vated by a pre‑conceived notion that vegetable business should now be localised only to the new private market, for which notion there was no warrant in law:

(d) That according to law, markets can be of two types, public markets as contemplated in section 63 of the Municipal Administration Ordinance, 1960, and 'private markets as contemplated in section 64 of the said Ordinance, public markets are those markets which are the properties of Municipal Com mittee and which are maintained and controlled by them. Private markets are those markets which are owned by private individuals but which are licensed and can be under the control of the Municipal Committees. The learned counsel argued that if the market in dispute was a private market, then it was already licensed, due to its being in existence for the last over forty years. If, on the other hand, it was ‑a public market, then the Committee had no authority to refuse licences of the plaintiffs for doing business in this market. With regard to public markets; the only power which a Committee has is to secure its proper management, and sanitation the ‑ management according to the learned counsel, does not mean the complete annihilation of the trade. By stopping the plaintiffs from doing business in the old market, which has been in existence for the last over forty years, according to the learned counsel, was tantamount to stifle their trade and could not be covered by the phrase "management". For this proposition, the learned counsel relies upon Municipal Corporation of the City of Toronto v. Virgo 1846 A C 88 (P. C.), where under clause 184 of the Revised Statutes of Ontarior, 1887, section 495 con ferred a power upon a municipal council to make bye‑laws for regulating and governing trade. In that case, it was held that, in so far as the municipal counsel had attempted to prohibit hawkers from plying their trade in an important part of the municipality, it could not be said that such prohibition amounted to "regulations" Lord Davey, in pronouncing the opinion of the Privy Council, has observed, at page 93 of the report as follows:‑

"No doubt, the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and to a certain extent as to place where such restrictions are in the opinion of the public authority necessary to prevent a nuisance or for the maintenance of order. But their Lordships think there is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed. An examination of other sections of the Act confirms their Lordships' view for it shows that when the Legislature intended to give power to prevent or prohibit, it did so by express words."

To the similar effect is the decision in the case of Attorney‑General for Ontario v. Attorney‑General for the Dominion (1896 A C 348). At page 363 of the report Lord Watson has observed:‑‑

"In that view, their Lordships are unable to regard the prohibitive enactments of the Canadian Statute of 1886 as regulations of trade and commerce. They see no reason to modify the opinion which was recently expressed on their behalf by Lord Devey in Municipal Corporation of the City of Toronto v. Virgo (Ante p. 93) in these terms Their Lordships think there 'is marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed."

These cases were followed in Haji Ghulam Zamin and another v. A. B. Khondkar and others (P L D 1965 Dacca 156), Relying on the above principle, 'the learned counsel submitted that the action of the Municipal Committee, in the instant case, did not amount to management of the fruits and vegetables market, but rather to its closure and prohibition.

(e) That all the actions of the Municipal Committee in the instant case were motivated by malice and were aimed at helping their partymen and relations and from this point of view they were no orders or actions in the eye of law and were as such a nullity. He further submitted that the immunity to orders passed under the Municipal Ordinance pertained to such orders which were passed in good faith and whenever any order or action of the Municipal Committee was proved to be mala fide it could be so declared and ignored by the Civil Courts.

8. A perusal of the above points (all of which arise from the plaint), will show that the case involved important questions of law and facts to be decided, which it was not possible in a cursory and summary judgment of application of temporary injunction to decide satisfactorily. The case of the plaintiffs, therefore, did fulfil the requirements of a prima facie case and the orders of The two Courts below holding otherwise cannot be said to be correct or just. Since the orders of the two Courts below are based solely, on the consideration that there is no l prima facie case, those must be ignored and they are liable to be, set aside, which I hereby do.

9. The two Courts below never adverted to the question of other considerations which are relevant for the purpose of granting temporary injunction. These considerations, as for example are, (i) conduct of the parties; (ii) the balance of con venience; (iii) irreparable loss; and (iv) the existence of any other adequate remedy. In the instant case, I find from the statements in the plaint that the Sabzi Mandi has been in existence in the place in question for over forty years and the plaintiffs have been carrying on the business on that place from a pretty long time. They had raised their chhappars and other super‑structures also at the spot, which the Committee highhandedly demolished (a step which might involve the Committee into further litiga tion)‑. The Committee has not passed any orders on the applications of the plaintiffs so far (this was, conceded by the learned counsel for the Committee before me. The allegation) that the new private market has been established to help the various members of the Committee and their relations has not been denied on oath. The conduct of the Municipal Committee and its officers as depicted in the plaint, is far from praise‑worthy. If the plaintiffs are up‑rooted from a place where they have been doing a business for four decades, it is obvious that they will suffer an irreparable loss. Moreover, a private market, wherein they are now required to do business does not belong to them but, as contended in the plaint, belongs to the various members of the Committee; their relations and henchmen, who may or may not give any place for business to the plaintiffs. In this way, the position of the plaintiffs‑peti tioners becomes very precarious. From the present market, they are being deprived to do business by the Municipal Committee and in the new market, the private owners or their relations or henchmen may not let the plaintiffs‑petitioners enter. The balance of convenience, in these circumstances, lies in maintain ing the status quo, and the Committee, on the other hand, is not likely to suffer anything if the present state of affairs is allowed to continue during the pendency of the suit. The plaintiffs have averred in the plaint that they tried to knock at the doors of the Municipal Committee, its Chairman and Officers, and also waited upon the Minister and, it is in the last resort, that they had to come to the Civil Court. The plaintiffs, in this way, are not to be blamed in dragging the Municipal Committee into a civil suit. The conduct of the Municipal Committee, on the other hand, on the averments in the plaint calls for serious criticism, I find all the ingredients necessary for issuance of a temporary injunction present in this case and setting aside the orders of the two Courts below, I hereby grant a temporary injunction to the plaintiffs, as prayed for in their application on the subject, till the decision of the suit. The Municipal Committee shall bear the costs throughout.

H. M. A.

Petition accepted.

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