(D IN THE HIGH COURT OF JUDICATURE AT BILASPUR: C.G. WRIT PETITION N0. OF 2005 I^J' p- 1338 /6S- WRIT PETITION UNDERARTICLE 227, CONSTITUTION OF INDIA Petitioners: 1) Gram Panchayat, Jhalrfiala, Through : Secretary, Gram Panchayat, Jhalmala, Thana Sipat, District Bilaspur (C.G.) 6 ^ / ?)/i^ Deepak Sahu S/o Bhalau Sahu, j7;\ ....••^\ ('11 ( Sarpanoh, Village PaachayatJhalmala, ...-••\ .M-*" Thana Sipat, District Bilaspur (C.G.) ^.^'^-•>"- .<^* \.'.--fyy'^..--^ ,..-^.-^":..-<c'f/ ^y^-^^ ^c-^€' ^-C'K Respondents: Defendants 1 & 2 yj'i Sahmat Khan S/o Ismaiel Khan, aged 32 years, / i Thana Sipat, Tahsil Masturi, District Bilaspur (C.G.). Plaintiff 2) Gendram Gandhar/, R/o Village Jhalmala, Thana Sipat, Tahsil Masturi, District Bilaspur (C.G.) Defendant no.3 ^ .^^' 'y HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGARH Writ Petitioa Bo.l33S of 2005 Gram Panchayat, Jhaunala & another - Versus - . Sahiaat Kliaa & aaotBfer POSTFOR ORDER ON 30-6-3005 i--C. Bhadoo Judge oyc- A' HIGH COURT OP JUDICATURE AT BILA8PUR, CHHATTISu^^ Wrst Petitioa Bo. 1338 of 3005 Gram Panchayat, Jhahnala & another - Versus - Sahniat Khau & another Present: - Mr, Sanjay S, AgaTWcd, AdvocAte; For thc pctitioucrs Before Hoa'ble Mr. L.C. Bhadoo. J. ORDB (Passed on 30th June, 2005) 1. The petitioners who are defendauts No.l & 2 iu ttte suit pending in the court of the 3rd Additional Civu Judge Class-II, Bilaspur have preferred this writ petition questioniag the legality of order dated 28.3.2005 passcd by lcamed Additional District -Judge, BUaspur ia MisceUaaeous Civfl Appeal No.11/05 whereby leamed Additional District Judge atlowed the misceUaaeous civil appeal filed by respondent No.l herein and set aside the order dated 9.3.2005 passed by leamed 3rd Additioaal Civil Judge whereby the appUcation filcd by rcspondcnt No. 1 Iiereui undcr Oidcr 39 Rulcs 1 & 2 of the CPC was rejected. The appeUate Court directed the petitioners hereia not to stop respoiident No. 1 from coUecting tlie tax froiu the weekly cattle fair of Grain Panchayat Jhalmala. 2. Brief facts, as set out ia the writ petition, are that lespondent No. 1 hereiii filed a civil suit in the court of leamed 3rd Additional Civil Judgc, Class-II, Biiaspur for issuancc of pcnnaacnt injunction restraiaing fhe petitioners hereia fi-om creating any obstruction in coUectuig fhe tax ia. the weekly catfle fair of ViUage Paachayat Jhalmala and not to prevent the plamtiff frQm coBecting the tax froia the said fau- on fhe groi.uid that ia fhe inontb ofAugust, 2004 Gram Panchayat Jhahnala gave right of coBcctiag tax froxn thc weekly cattle fair on contract basis for a period of one year, in that process auction was conducted and the plaiatifF beiag the highest bidder of Rs. l,03,000/- the auction. was accepted iu his favour. The —Aasa_ ?/ plauitiff deposited the entire auction. nmount in. fhree itistaU.uients i,e. Rs.25,750/- on 23.8.2004; Rs.30,000/- on 1,10.2004 & Rs.47,250,/- OQ 11,10,2004. The Sarpanch after rcccivmg thc said ainount issued receipts iu favour of the plamtiff. Thereafter, tlie plaintiff was aUowed to collect the tax from. fhe said weekly catfle fair inarket aiid since the Graiu Pauchayat dhaltuala gaye the contract to the plaintiff, it is bindiag on the defeadaiits also, as the piaintiff has ah-cady dcposited fhe entire auction amount. Hcnvever, on 12.2.2005 deteudaat No.2 served a notice on tlie plaintill'askiiig hioi not to coUect tax &om fhe weekly catfte fair market, respoiident No.l/plaiatifF subaiitted reply of same, however, oa. 2,3.2005 wlien the plaintiffand his persons were coUectiue the tas in fb.e wccklv cattlc fair markct dcfendant No.2 camc in fhc inarket, started creatiag obstructions and asked the plaintiff uot to coUect the tax aad said that he has no right to coUect the tax. Respondent No. 1 hereiii filed suit aking wiih an appiication uiider Order 39 Rules 1 & 2 of fhe CPC for grant of teinporary injunction supported by an affidavit. The petitioners herein filcd reply of the said appMcation aad stated that it is tacorrcct to sav that fhe conti'act was given to the plauitiff for coUection of tax from the weekly catfie fair market aud it is also iiicorrect to say that auction ainount Rs, 1.03.000/- has been deposited ia the account of Graca Panchayat .Jhatmala by thc plamtiff or by fhc fhen Sarpaach aamely Gendram Gaadharv (defendaat No.3.}. Tlie platatrff produced a receipt of Rs.10,000/- regardiag the deposits made at the tiiue of auction, but the saiae aiuount has also not been deposited ia the account of Gram Paachavat. It was further sicD.tioncd iii the reply fhat fhc plaintiff in. coUusion with the formcr Sarpanch has entered iato Ulegal activities, as fhere is no privity ol' contract between the plaintifF and defendaut-Gram. Paachayat. Theieafier, when defendant Nos. 1 & 2 caiae to know about the said illegal activities thev asked the plaiatiff to produce the documents regarding his right of coUection of tax, but in rcsponse to the said notice whea plainttff" iailed to appear, ttiea ou 28.2.2005 the Gi-am Panchayat. took a decision to caacel fhe contract of tlie plaintiffunder Section. 85 offhe Gram Paachayat Adhiaiyatn, 1993, saaie was approved by tlie Pi-escribed Of&cer, Jaapad Panchayat r1'2- Masturi. In coiiipUaace of fhe resolution the Paacbayat has been given right to coUect the tax froin the weekly catde falr inarket to w.c.f, 1.3.2005. Thcyhavc startedcollcctmgtaxw.c.f. 2.3.2005. It was ruTttter mentioned ia the said repty that stnce no contract agreement has been executed between the Gram Pauchayat &> Plaintiff therefore, ao prima-facie case is m.ade out in tavour of fhe plainti£Fnor the balance of conveiuence is ia favour of fhe plaintiff aiid if the injiuiction is not grailtcd tn his favoiu" hc is not going to sufier aay loss. 3. Leamed 3rd Additional Civil Judee Class-II after heariiig the parties rejected fhc application of plaintifi/respondcnt No.l 011 fhc ground that the plamtiff has failed to prove his case that he has deposited auction. amount iu the accoiuit of Gram Paachayat Jhalmala. There is no entiy regarding deposit of auction ainount ui The register of Gram Paachavat aad defendaut No.3 has not inade aav entn' rcgarding the deposit of ainouiit, Agaiiist thc said ordcr rcspondcnt No.l ffled a miscellaneous civil appeal, Tfae appellate Court after hearing the parties reached to fhe conclusion fb.at re.solutioii passed by the Gram Paachayat cau be caacelled under Sectiop- 85 of tlie Adhinivani bv fhe Goveminent or fhe Prescribed Auflioritv' i.c, Sub Divisional Officcr, thcrefore, fhe Panchayat was not entitled to cancel the auction dated 21.8.2004. Even the Chief Executive Officer was not eiititled to pass aay order fliat Gram Pauchayat is en.ti.tled to coBect the tax froni the weeldv catue fair aiarket. The auction was accepted in favour of fhe plam.tiff'on 23.8.2004 beuie fh.c highcst biddcr, thcrcforc, fhcrc is pnma-facic casc in favour of the plaiatiff and balaace of convenlence Mes m tavour of fhe appeUaat/respondent No. 1 herciu, if fhe plaiatiJtr is uot aUowecl to collect fhe tax theii irreparable k>ss wiil be caused to 'mm. 4, I have heard leamed counsel for fhe petitioners. None present oa bcbalfofthc rcspondcnte. 5. Leamed counsel for fhe petitioners argued that the leamed appeUate Court graated the reUef which amounts to culowing the iTiain relief prayed in the suit, by way of teiuporaiy injunction a relief cannot be erauted as of inain reUef and for fhis areuinent lie Q3 placed icliaiice on the decision of fbe Hon ble Apex Court in the inatter of Uaioa of ladia fle others Vs Modiluft Ud. reported iu (2003) 6 Supreme Court Cases 65 aiid also on thc dccision of Madhya Pradesh High Court in. fhe niatter of Ramesh Chaadra Shivhare V. State of M.P. aad others reported m 1996(2$ Vidhi Bhasvar 177. He aiso argued that the contention of respoadent No.l that the aiiction amount of Rs.1,03,000/- was deposited ia without any basis, as no such amoiint was found to bc dcpositcd iii the ledger or accouat of Gram Paachavat. He lurther submitted fhat in view ofSection 4 ofthe M.P. Paiichayat (Modes ofExecutiiig Contract) Rules, 1995 no cou.ttact a^reeuien.t was executed bebveen tfae Gram Panchavat and respondent No.l, therefore, no leeal enforceablc contract was cxisting between thc two. 6. Havmg tieanl learaed. couasel for tlie petitioner, I have perused ttie record as well as fhe orders passed by leanied 3rd Additional Civa judge aad also ieanied Additional District Judge. it is settled lav? that the discretioaarv powers exercised by the trial court in fhe inattcr of teiapoiaiy iajunction canaot bc liglitly niterfcred toy the appellate Court iirdess fhe oider passed by Tlie trial coiu't is perverse and conteaiy to the setfle principles of law and documents & records of the case. For this purpose, we have to look into ihe facts of the case whether respondent No. 1 herein was able to prove his prmia-facic casc, balancc of convcnicncc and UTcparable loss ia his tavour. 7. Perusal of pmceediags (Annexm-e P-2), which has been filed by Uie defeiidaats/petitioners along wifh this writ petition. shows fhat on. 21.8.2004 the nieeting of Paachayat was coavened, in fhat iiieeting the PEmchayat decidcd to auctioa tiic right to coUcct thc tax from the weeklv cattle falr market tor the vear 2004-05, oa that dav ItseM' the said resolution was made known to fhe viUagers fhrough Gie Vfflage Kotroar. in. pursuance fhereof on 23.8.2004 auction was held in which three persons namely Ramji Yadav, Sageer Ahmed and rcspondcnt No. 1 hcrcin participated, each of them deposited Rs. 10.000/- aad bid ofrespondent No.l herem i.e. Rs.l,03,000/" beiag the highest bid was accepted aiid right to coUect tax fixim fhe weeldy catfle fair tnarketw.e.f. 23.8.2004 fo 22.8.2005 was givea. to respoiulent No. 1. This proceediiig be.ars tlie sj^rLatures of the Sarpanch, Panchas aad other persons. Thereafter, respondent No.l hcrctn dcposited thc auction amount ia three instailmcnts with ttie fhen Sarpancb. on different dates i.e. Rs. 25.750/- on 23.8.2004; Rs.30,000/- os. 1.10.2004 Ss Rs.47,250/- on 11.10.2004 and fhe fhen Sarparich/ respondent No.2 herein issued the said receipts under his signature aad seal of that veiy Grain Paachayat. Rcspondent No.2 hcrcui, who was legally elccted Sarpaacli at ffaat time, has not denied this fact. Respondent No. 1 started coUectiag tax and he contmued to coUect tax tiB Febniaiy, 2005. Thiags started takiag tum only after the elections for constitution of new Paachavat were held ia fhe inonth of Februaiv, 2005 and petitioner No.2 herein was elected as Sarpanch of Gram Panchayat Jbalmala. It may be true that ttie said auction amount ofRs.1,03,000/- deposited by respondent No, 1 hereia mayhave not beeu eiitered in fhe Paachayat register or ledger by the fhen Sarpaiich-defendant No.S/respoiident No.2 herein, who coUected the said amount finia respondcnt No. 1 facrcin, but bccause of thls reason it cannot be said ttiat respoadent No. 1 had not deposited fhe amoimt, The Giass. Paachayat accepted tfae bid of respondent No. 1 and iu pursuaace thereof he deposited tlie bid amount iii three instaUments with tlie fhen Sartsaach, who issued tlie vatid rcccipts in token of thc deposit of that inoncy. Hoi«-cvcr, tf respondent No.2 had embezzled fhat amount aiid not deposited the same ia tlie account of Gram Panchayat tlien fhe autliofity coaceraed cail take action agaiast liim. but Uiey ai'e not entitled to iaterfere witb the right of respondent No. 1 regarding coBection of tax froin the catflc inarket, as the same was legaUy haaded over to him after acceptaacc of his bid. It has not becn denied by Uie petitioners hereia fhat respondent No.2 did not coUect. tlie said amount and not issued the receipt, which was filed by respondeiit No.l. Therefore, respondent No.l was able to raake out a stron< priiaa-facic casc ia bis favour. As t'ar as non-execution 01 ttie contract agreement 1s concemed, merely on tliis groimd that tlie petitioners ai-e not entitled to iuterfere with fhe right of respoiident No.l because the bid of qs respondeat No. 1 was accepted, bid Qnirmrtt ^vas deposited by b.iiii and therefore, it was the dutv of Grani Paachavat to execute the contract agrccincnt ta vicw of Riiles 3 & 4 of fhe Rules, 1995. As tfae former Sarpaach had already coUected the entire auction aniount from respondent No. 1 and issued receipt m token ftiereot', aow the existing Panchayat caiuiot fake defence that siace agreeinent tias not been executed between fhe parties, respondent No. 1 is not cutitled to coUect the tax froin the weeklv cattle fair market. Moreover, as per provision.s of Section 85 of tlie Adhmiyam, 1993 oiriy fhe State Goverument or Prescribed Authority is enutled to suspend fhe execution of auy resolution passed by fhe Gram Panchayat, After elapse of about six inonfhs of the resolution thc Graan Paxichavat was not entitled to review resolution dated 21.8.2004 that too without any valid reasons. Therefore, respondent No.l has been able to make out a strong pruua-facie case in his favour aiid even the balance of convenience also lies in his favour, as lie had deposited tiie entire auction amount, fhcrcforc, hc has right to coUcct fhc tax froin weckly cattle fau- market aad ii' any iaterference is caused In his right to coUect tfie tax fhat wiB aiaoiint.s to iaterference with the legal rights of respoiident No. 1, which was graated to him tti an auction. held by fhe Panchayat. Therefore, if he is prevented froiu collectine fhe tax then that wUl causc UTCparablc loss to him. 3. Now coming to the questlon ralsed t>y leamed couasel tbr tlie petitioners herem that by way of temporary injunction a relief cannot be gratited which ajmounts to inain. reUef. It is true fhat it is settled principle of law, but it is also settled law fhat where on the basis of facts and circurastaaces of the casc, strong pruna facie case is made out in. tavour of (he plamtiff, which warrants issuaiice of ad-iaterim maiidatoiy mjunction then that cau also be issued and also ia case if teniporary iiijunction is not granted ia favottr of tbe ulauitiff and bv the time the suit will be decided the relief sought for by thc plaiatifF will be rendcrcd iiLfructuous, also ia cases where the injury complamed of is unmediate and pressia; aud would cause extreme hardship to the plamtiff on account of delay in decision of the suit, in that situauon, the Court ^ consideruig the exceptionai case can issue ad-interuii iiiaildator^r injuiiction. la this connection, I aru fortified in luy view by the decisiou of fhe Apcx Court in the inatter of Deoraj v. State of' Maharashtra and otliers reported ia (2004) 4 SCC 697, statiag; "Situations emerge where tfae grantmg of an interim reUef wouM tantanioiint to graatuig the fiaal relief itsclf. And then thcre inav be convcrsc cascs whcre withholding of an mterun relief would tantamount to dismissal of the Biam petition itself; for, by tlie tuae the maia matter comes up for heaiiag there would be nothing left to be allowed as rcUef to fhe pctitioner though aU the findmgs may be in his favour. In such cases the availability of a veiy strong primafade case - of a staadard much tiigher ftiaa just primafacie case, fhe considerations of balance of conveiuence aiid in'eparable iajuiy forcefliUy tiltmg the balaiice of the case totatty ia favour of the applicaiit jnay persuade the court to graat an interim retief (hough it aiaounts to grEuiting the final relief itself. Of course, such would be rare and exceptional cases. The court would graat such ao. uiterim. relief only if satisfied that withholding of it woiild prick thc conscicnce of thc court aad do violence to the sense ofjustice, resultiag in uijustice being perpctuated thi'oughout the heariiig, aad at fhe end fhe cotirt would not be able to viudicate thc causc of justi.cc. Obviously such would be rarc cases accompanied by compeUing circumslances, where the injury coraplauied of is imiaediate and pressiag and would cause extreme hardsliip. Tfae conduct of fhe oarties shail also have to be seen aiid the court ma5r put fhe parties on sucli terms as may be prudeut. 10. On tlie basis ofabove prmciple, ifwe look into ttie facts ofpresent case, as has beea discussed in the earher part of this order, Gi-am Paachayat: Jhalmala auctioned right to coUect tax from. th.e weekly catde tair inarket on 23rd August, 2004. The petitioner's bid beiaig highcst was accepted aiid hc dcposited the entirc auction ainount \vith the theu Saqiaach of Grani Paachayat: Jhahnala, tbereafter, he was atlowed to collect fhe tax w.e.f. 23Id August, 2004, and he was coatiaiiously coUectmg the tax titl February, 2005 as per his right. However, fhe respondents atl of a sudden witfaout any vaUd basis stopped the pctitioners froin coUecting tax and started causmg mterference. In view of the above facts, I am of the consldered opiaion fhat flie appeBate Court has righfly allowed fhe on- appeal and prohibited fhe petitioiiers berein fi-oin intErferiilg wifh the right to coUect fhe tax froin the weekly catde fau~ xnarket. ll.In fhc rcsult, thcrc is no incrit ia thc pctition, sainc is Uablc to bc disinissed aad it 1s acconliagly, disuussed at the admission stage itsetf. Sd/- L.C. Bhadoo Judge Roshan/-