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1987 DIGILAW 133 (PAT)

Harinagar Sugar Mills Limited v. State of Bihar

1987-04-27

B.N.AGRAWAL, UDAY SINHA

body1987
JUDGMENT : Uday Sinha & B.N. Agrawal, JJ. This is an application under Article 226 and 227 of the Constitution of India for quashing the criminal proceeding arising out of Motihari Muffassil P.S. Case No. 133/86 initiated on a first information report dated 9.9.1986 Petitioner No. 1 is a Company incorporated under the India Companies Act, 1956. Petitioner No. 2, 3 and 4 are the Directors of the said Company and petitioner no. 5 is the factory manager thereof. 2. The facts leading to the filing of the present application are as hereinafter stated. The petitioners run a sugar factory. The petitioner Company purchases sugarcane for the purpose of manufacturing sugar. In the process of manufacturing sugar, it produces byproduct sugar molasses as well. Molasses are consumed by the distilleries to whom molasses ace distributed by the State Government. In terms of the Bihar Agricultural Produce Markets Act, 1960 thereinafter to be referred to as the Act), the Company was forced to take out a licence under the provisions of the Act and the Rules framed thereunder. In terms of the said Act, the Company was required to deposit market fees on transactions of purchase and sale of sugar-cane and sugar. The Company challenged the jurisdiction of the Market committee to realise market fees through a suit in the civil courts. That suit was numbered as Title No. 84 of 1977 in the court of the Subordinate Judge, Bettiah, West Champaran. The suit was for grant of permanent injunction restraining Ramnagar Agricultural Produce Market Committee from realising or taking any stop for the realisation of market fees, penalty, interest etc. Three other Companies viz. M.P. Udyog Limited, North Bihar Sugar Mills Limited and New Swadeshi Sugar Mills Limited also filed similar title suits with similar prayer. The suits filed by them were numbered as Title Suit Nos. 78 and 79 of 1977 and 84 of 1978 respectively. The trial Court heard and decreed all the suits by a common JUDGMENT : and restrained the Market Committees concerned from realising market fees. The Market Committees filed appeal before this Court against each of the plaintiff separately. Appeal against the petitioner Company was numbered as F.A. No. 299 of 1985. Other appeals were numbered as First Appeal Nos. 240 of 1985, 266 of 1985 and 300 of 1985. The Market Committees filed appeal before this Court against each of the plaintiff separately. Appeal against the petitioner Company was numbered as F.A. No. 299 of 1985. Other appeals were numbered as First Appeal Nos. 240 of 1985, 266 of 1985 and 300 of 1985. While the appeals were pending before this Court, an application was filed by Narkatiaganj Market Committee in First Appeal No. 266 of 1985 arising out of Title Suit No. 84 of 1978 for staying operation of the JUDGMENT : and decree passed by the Subordinate Judge, Bettiah. That application was listed for ORDER :s before a single Judge of this Court. The learned Single Judge stayed the operation of ORDER :of permanent injunction passed by the Subordinate Judge, Bettiah. While allowing the application of Narkatiaganj Market Committee, the learned Single Judge also stayed operation of the JUDGMENT : and decree in First Appeal Nos. 240 of 1985, 300 of 1985 and 299 of 1985 arising out of Title Suit No. 78 of 1978, 79 of 1917 and 84 of 1977. I would like to make it absolutely clear that the petition bad been filed only in First Appeal No. 266 of 1985 which was preferred against the JUDGMENT : and decree passed against Narkatiaganj Agricultural Produce Market Committee in Tale Suit No. 84 of 1978 but the ORDER :for interim stay was passed by the learned Single Judge in respect of other three First appeals covering three title suits also. The ORDER :so far as is relevant reads as follows : - "For the reasons aforesaid, I stay the operation of the ORDER :of permanent injunction as stated in paragraph 32 of the JUDGMENT : of the learned Subordinate Judge Betriah, West Champaran in Title Suit No. 78 of 1877, T.S. 79/77, Title Suit No. 84 of 1977 and Title Suit No. 84 of 1978 clarifying, however, that the appellant shall not be entitled to realise any fee on the molasses. This ORDER :shall operate until the disposal of this appeal or any other ORDER :varying the ORDER :passed by me today." Under the cloak of the above ORDER :of this Court, a first information report was lodged by Shashikant Jha, Secretary, Agricultural Produce Market Committee, Motihari, in which it was stated-in respect of the petitioner Company-that the ORDER :of injunction passed by the Subordinate Judge, Bettiah had been stayed by the High Court. On receipt of information from the Secretary of Agricultural Produce Market Committee, Motihari, the police instituted a regular case against the petitioner Company and its Directors and the Manager. The truck on which the sugar of the petitioner Company was being carried was seized along with sugar. Later the sugar was released on payment of market fees. The petitioners thereafter moved this Court by the present application on 20.9.1986 for quashing the first information report which has given rise to G.R. Case No. 1926 of 1986. It may be stated that the case was instituted against other Sugar Companies as well. We are not concerned in this application with other Companies. The present application was admitted on 22.9.1986. At the time of admission, further proceedings in the case arising out of Motihari P.S. Case No. 133 of 1986 dated 9.9.1986 was ORDER :ed to remain stayed. 3. The submission urged on behalf of the petitioners is that the ORDER :of the learned Sing1e Judge dated 22.4.1986 was void and nonest as First, Appeal No. 299 of 1985 had not been put up before the Bench for consideration in any connection nor were the petitioners heard in that matter. The grievance of the petitioners is that there was not even an application for staying operation of the JUDGMENT : and decree passed in Title Suit No. 84 of 1977 and therefore, the learned Single Judge had no jurisdiction to pass any ORDER :staying operation of the decree of the learned Subordinate Judge. 4. It may be stated here that subsequently First Appeal No. 299 of 1985 was dismissed for non-compliance of a peremptory ORDER :of a Bench of this Court passed on 1.7.1986. The criminal case was initiated on 9.9.1986, long after the dismissal of the said first appeal. It is not necessary to emphasise that unless a decree for permanent injunction passed by the Subordinate Judge, Bettiah was set aside, that was final. While that decree was operative, It was no offence to transport sugar without paying market fees. In that connection, we have to see how for the ORDER :of the learned Single Judge was operative. 5. It is elementary that unless there is an application in any first appeal, no ORDER :can be passed staying operation of the impugned decree or ORDER :. In that connection, we have to see how for the ORDER :of the learned Single Judge was operative. 5. It is elementary that unless there is an application in any first appeal, no ORDER :can be passed staying operation of the impugned decree or ORDER :. In First Appeal No. 299 of 1985 arising out of Title Suit No. 84 of 1977 no application for staying operation of permanent injunction had been filed. In that view of the matter passing of an ORDER :staying operation of the decree in First Appeal No. 299 of 1985 was clearly without jurisdiction. However, we express no view about the validity of the ORDER :passed by the learned Single Judge in regard to the decree in First Appeal Nos. 240 of 1985 and 300 of 1985. The effect of this conclusion is that the injunction granted by the Subordinate Judge against the realisation of market fee from the petitioners was effective and is effective at all times. In that view of the matter the petitioner Company had not committed any offence in transporting sugar without paying market fee. No offence was committed by the petitioners under the Act. The injunction ORDER :having been found to be effective till today, it goes without saying that the realisation of market fee after 13.3.1985 till today did not have the sanction of law. The petitioners would be entitled to refund thereof. 6. Mr. Chandra Shekhar, learned counsel for respondent no 2 contended that the ORDER :of the learned Single Judge had the effect of curing a patent illegality committed by the learned Subordinate Judge and, therefore, this Bench should not ignore it. We see no substance in this submission and we reject it accordingly. 7. According to the first information report the petitioners are alleged to have attempted to cheat the Market Committee by showing a certificate to the effect that the petitioners were not liable to pay market fee. In our view, this does not constitute attempt to cheat. ORDER :of this Court, so far as these petitioners are concerned was non est. First appeal had been dismissed albeit for default. The injunction ORDER :was operative. Therefore, there was no cheating committed by the petitioner Company or its Directors or Manager. In that view of the matter, investigation into Motihari P.S. Case No. 133 of 1986 would thus be an abuse of process of the Court. First appeal had been dismissed albeit for default. The injunction ORDER :was operative. Therefore, there was no cheating committed by the petitioner Company or its Directors or Manager. In that view of the matter, investigation into Motihari P.S. Case No. 133 of 1986 would thus be an abuse of process of the Court. The investigation into that case is, therefore, hereby quashed. This ORDER :concerns only the petitioners before this Court in the instant case. If other persons file similar applications, those applications will be considered on their own merit. This application is allowed accordingly.