Vijender Jain, J.
(1) This is an application filed by the plaintiff under Order 39 Rules 1 and 2 read with Sec.151 of the Code of Civil Procedure praying that the defendants be restrained from taking any action against the plaintiff and its allottee members pursuant to the notices dated 4.7.94 and 14.6.94, with a further direction that the defendants be restrained from implementing the memorandum dated 13.7.94. Mr.R.K.Anand, learned counsel for the plaintiff (hereinafter referred to as POMA) has argued that the plaintiff is a duly registered association having 213 members. It is the case of the plaintiff that certain platforms were constructed at New Subzi Mandi by Dda to be used as storage and auction platform and possession of these platforms were handed over to the defendant Nos. 1 and 2 for storage and auction purpose. The plaintiff approached the defendants for use of the said platforms by its members and vide license deed dated 1.4.79 the defendants handed over the platform to the plaintiff to be used by its members. The said platforms were to be used by the plaintiff for wholesale business of potato and onion including loading and unloading, storage and sales thereof and no retail sales were to be carried out. The plaintiff has averred that though it was a license but, as a matter of fact, it was a rent deed between the plaintiff and defendants. For the utilisation of the said platforms the plaintiff was required to pay revised rent at the rate of 0.75P per sq.ft. per month to the defendants which according to the plaintiff had been paid till date. The defendants issued an order dated 14.6.94 in exercise of the powers contained-in sub-section 2(e) of Sec.25 of the Delhi Agricultural Produce Marketing (Regulation) Act, 1976 (hereinafter referred to as Marketing Act'), it was ordered that the actual occupant of the Poma sheds whose names were indicated in paragraph 7 under Column No.4 of the said order shall continue to occupy the phar/shed which were mentioned against their respective names. It was further stated that in case Poma does not accept the license fee from them, they shall pay the license fee amount to defendants 1 and 2 directly. Thereafter, on 4.7.94 a notice was issued by the Administrator of defendant no. 1. Paragraphs 11, 16 and 16.1 of the said notice are important for consideration of this Court. Paragraph 16 of the notice is to the following effect :-
'KEEPING in view the grave/serious irregularities mentioned above and also taking into account that no license-deed exists between the Apmc, Azadpur & Potato & Onion Merchants Association, the undersigned i.e. Administrator of this committee call upon you to hand over the vacant and peaceful possession of the aforesaid shed (commonly known as Poma shed) to this office within 30 days of the receipt of this notice failing which this committee shall be entitled to take possession of the goods lying in the aforesaid shed/platforms and enter upon the said shed/platforms. The goods taken into possession will be disposed of by this office in the manner as may be deemed fit. This is to be treated as final notice.'
(2) Mr. Anand has argued that the notice dated 14.6.94 pursuant to which a survey was conducted by the defendant, no notice of the same was given to the plaintiff or to its original allottees in the alternative he has argued that survey was sham and at the behest of some influential political persons to subserve the interest of those persons in whose favor the order dated 14.6.94 was passed.
(3) He has further argued that the members of the Poma has been granted license in terms of Sec.34 of the Delhi Agricultural Produce Marketing (Regulation) Act, 1976. Sections 34 and 35 of the Marketing Act are as under:- Sec.34: 'Grant of licenses (1) 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 thereforee, 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 in any other capacity. (2) A license granted under sub-section (1) (a) shall be in such form, valid for such period and 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. Section 35: 'Power to 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 had 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 discharge; 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 any license granted or renewed under this Chapter. (3) No license shall be suspended or cancelled under this section, un- less the holder thereof has been given a reasonable opportunity of showing cause against the proposed action.'
(4) Plaintiff has further contended that any license which has been issued under. Sec.34 of the Marketing Act cannot be suspended, revoked or cancelled unless and until a reasonable opportunity of showing cause against the proposed action has been given as contemplated in sub-section 3 of Sec.35 of the Marketing Act. The case of the plaintiff is that no opportunity whatsoever was given to the plaintiff as provided under the Act and, thereforee, the effect of the impugned letters dated 4.7.94 and 14.6.94 ought to be stayed.
(5) Counsel for the plaintiff has further argued that they have been in actual physical possession of the platforms in question and even the defendants have been corresponding with them on this subject till date. thereforee, prima facie, they have got case in their favor and balance of convenience is also in their favor and that status quo be maintained in relation to the occupation and pos- session of the members of the plaintiff in relation to these platforms.
(6) MR.ANAND also argued that the basis of the letters dated 14.6.94 and 4.7.94 is beyond the scope of resolutions adopted by the defendants as the resolutions were for seasonal trade.
(7) On the other hand, learned counsel for the defendants Ms.Geeta Luthra has argued that the resolution of the Board was not in relation to the seasonal goods but it covers onion and potato also. I do not think it is necessary for me at this stage to go into the controversy regarding the basis of the resolution and whether the same was for seasonal goods or non-seasonal goods. There is no dispute that the plaintiff has 213 members. According to Ms. Luthra 103 spaces (platforms) were made available to the plaintiff in 1979 and the license was not extended beyond 1984. Ms.Luthra also highlighted the undertaking given by the Hony. General Secretary of the Poma dated 8.9.79, inter alia, that even the plaintiff has taken the license purely on temporary basis on payment of monthly license fee at the rate of 0.50 P. per month initially. According to the learned counsel for the defendants in view of the undertaking given by the plaintiff, plaintiff cannot now turn round and say that the work spaces/platforms were allotted to them on rental basis and the same was not a license. She has further argued that after 1984 there is no valid license in favor of the plaintiff and, thereforee, plaintiff are rank trespassers and no notice to show is required to be given to them. She has argued that the possession after 1984 is by virtue of the original license deed of 1979 on the basis of month to month license. Ms.Luthra argued in the alternative that the notice dated 4.7.94 contained a notice of 30 days to the plaintiff and the same is a valid notice if it is held that any notice was required to be given by the defendants to the plaintiffs. Ms.Luthra has vehemently argued that as a matter of fact and in law no notice is required to be given. She has extensively quoted from the case of Chandu Lal Vs . Municipal Corporation of Delhi, a full Bench decision of this Court : AIR1978Delhi174 which reads as under:-
'SHRI Saigal next contended that on revocation of the license, the petitoners' possession of the Kiosks was that of a trespasser and having accepted license fee subsequent to the revocation of the license, the Corporation acquiesced in the possession of the petitioners as trespassers, in the circumstances the Corporation has no right to dispossess the petitioners by force. This submission is equally devoid of force. In accepting license fee subsequent to the revocation of the license, all that can be said is that the license was extended up to the period of the license fee was accepted but it cannot be said that the Corporation in any manner acquiesced in the alleged trespass or that the petitioners came to acquire 'settled possession'. The basic fallacy in this argument is the assumption that on acquiring liberty to occupy the Kiosk possession of it was passed to the petitioners. The petitioners being licensees legal possession all along remained with the Corpoation. That being so, as held by the Supreme Court in Munshi Ram v. Delhi Administration, Air 1968 Sc 702. the Corporation had a right to re-enter the premises and reinstate itself provided it does not use more force than necessary. Such an entry would be received only as a resistance to an intrusion upon possession which had never been lost. Further, the law does not require a, person whose property is forcibly tried to be occupied by trespassers to runaway and seek the protection of the authorities, there being nothing more degrading to the human spirit than to run away in the face of peril. Temporary injunction sought by the petitioners could be granted, if their case was covered by the three well-established principles, namely, (1) on making out a prima facie case, (2) on showing balance of convenience in their favor, in that the refusal of the injunction would cause greater inconvenience to them and (3) whether on refusal of the injunction they would suffer irreparable loss. Granting an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether the petitioners have a triable case. Before invoking the jurisdiction of the Court to seek temporary injunction the petitioners were bound to show that they have a legal right and that there was an invasion of that right. They have failed to show a legal right. Facts and circumstances, on the contrary, prima facie show that the petitioners on the revocation of the license are trespassers, there exists no justification for allowing them to continue perpetuating their unlawful act.'
(8) On the basis of Chandu Lal's case (supra) Ms. I.uthra argued that no show cause notice is required and no further revocation is required after the original license granted in the year 1979 was revoked in the year 1982. She has also invited my attention to Sees. 61 and 62 of the Indian Easements Act, 1882, particularly Sec-62 (c), which read as under:- Section 61: 'Revocation express or implied - The revocation of a license may be express or implied.' Sec.62(c):
'WHERE it has been granted for a limited period, or acquired on condition that it shall become void on the performance or non-performance of a specified act, and the period expires or the condition is fulfillled:'
(9) On the basis of these provisions she has argued that after 1982 when the license expired and defendants not renewed the license, impliedly the license has been revoked and the plaintiff occupation is that of a rank trespasser. In support of her arguments she cited the case Thimmarayappa v. Narayanappa and others Air 1954 Mysore 89. She also cited the case D.H.Maniar and others v. Waman Laxman Kudav, : [1977]1SCR403 , wherein it was held:-
'....Aperson continuing in possession of the premises after termpation, withdrawal or revocation of the license continues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises. Such a person by no stretch of imagination can be called a licensee. If, thereforee, the respondent was not a licensee under a subsisting agreement in occupation of the premises on the 1st of February 1973 he could not take shelter under Section 15A of the Bombay Rent Act.'
(10) Learned counsel for the defendant has also cited the unreported judgment of the Supreme Court in Special Leave Petition 1971 of 1992 that the injunction could not be issued against the true owners.
(11) Learned counsel for the defendant has also argued that in some of the cases Poma members in occupation of platforms have inducted other members and charging exhorbitant premium from them. Another argument advanced by the learned counsel for. the defendants is that though the Pharos which were allotted to the plaintiff could accommodate 103 members butthe same have been utilised by 50 members of the plaintiff association. As new members would also like to use the platforms these have to be put to maximum utilisation so as to benefit the large number of persons. She has also argued that proper survey was conducted and it was found that some of the members whose names have been given in the order dated 14.6.94 have now sublet the platforms and in one case one member of the plaintiff association has sold the platform by taking an amount of Rs.4.75 lacs and, therfore, it was necessary to take the possession in terms of the letter dated 4.7.94.
(12) Needless to say that while disposing of the present application I have to see whether, prima facie, a case has been made out by the plaintiff for the grant of an injunction or not and whether the balance of convenience is in favor of granting the injunction and what injury would be caused if the injunction is not granted.
(13) Learned counsel for both the parties have argued their case at length touching upon various aspects involved in the matter. Any expression of opinion by me at this stage would effect the case of either party. thereforee, without going into various aspects raised by the learned counsel for the parties, I am of the prima facie opinion that in terms of the license agreement dated 7.2.79 and in terms of the Marketing Act and relevant rules framed there under there cannot be two opinion that the defendants have got the right to revoke, suspend or modify the -terms of the license. It is also beyond pale of any doubt that since 1979 till 1994 new persons must have approached the defendants for the grant of license and defendants have to make maximum utilisation of the space available by inducting other members who would be entitled for grant of facilities hitherto enjoyed by the plaintiff. But the question before me is whether the license of the plaintiff which according to the defendants was terminated in the year 1982 what is the nature of possession of the premises of plaintiff and whether plaintiff is a trespasser. Question is whether the license has been terminated in the year 1982 or not. Because if the license has been terminated in 1982 than the law laid down in Chandu Lal's case and D.H. Maniar's case ( supra) would come in operation. The plaintiff has filed, during the course of arguments, a copy of letter No.Enf/Allotment - 1180 dated 15.2.82 which conveys the approval of the defendant Committee to allow to the plaintiff 1275 sq. ft. of space between platform nos. 2 and 3, opposite 'A' Block on the same terms and conditions as given in the license Deed dated 7.9.79, executed between the plaintiff and the defendant. There is another letter of the defendant dated 14.4.88 which is reproduced below:-
'THIS has reference to your request made on a number of occasions for providing more covered space by extending the Poma shed on both sides. We have carefully gone through your request and have also conducted a site inspection. The Poma shed in question was initially built by the D.D.A and we are not sure whether from the technical angle any major extension will be possible. You had also suggested almost a double storey complex in place of the present Poma shed for more space. We appreciate your need but it will take some time for us to find out if the shed can be converted into a double storey block. In the meantime, however, we do not mind your utilising some more area available on both sides of Poma shed with certain limitations. On the transport centre side, the shed can be extended a bit if the area belongs to Apmc, Azadpur and there is no problem in the traffic movement. This has been discussed with you and your members at length and I have asked the Executive Engineer, Apmc, Azadpur to do the needful in this case while taking up the work of extension of some sheds in the New Fruit Market complex. You have also made repeated requests for extending the Poma shed towards our sanitation field office and the Growers Shed. We have carefully assessed the position and you have been suitably briefed on this account also. We do not mind giving a part of the space on this side for use of your association members provided the traffic movement is not disturbed. The technical feasibility of the work will be assessed by the Executive Engineer, Apmc, Azadpur. An extension up to 24 feet to 28 feet may be allowed, subject to the condition that the police post almost in front should be shifted towards shop No.A-366, Nsm, Azadpur so that the basic traffic movement is not disturbed in any manner. However, while undertaking this exercise, the Executive Engineer and the Secretary, Apmc , Azadpur will have comprehensive discussions with you for taking a realistic decision. Rent charges will. also have to be decided. The sanitation field office will continue in the remaining portion. The Federation of Fruit & Vegetable Trade Association will also be given some space in 'C' Block dhallao complex which is lying almost unused. The first floor of this portion can be used by the Federation. This is a decision in principle. It should be carried out after finalising the details including rent charges. I am conveying this decision on the basis of assurance given by the Hon'ble Lt.Governor, Delhi to the Federation members on 7.4.1988 at Raj Niwas on their request for some space for the Federation office. A committee of 3 members from A.P.M.C. side viz. Secretary, Apmc, Azadpur, O.S.D. (P & E), Apmc, Azadpur and Executive Engineer Apmc, Azadpur and a committee of 3 members viz. Sh. A.N. laggi, Sh. Rajinder Sharma arid Shri Shyam Sunder Vohra should be associated to work out the details.'
(14) Defendant vide their letter dated 12.4.90 which has been addressed to the plaintiff under the caption subject allotment of space in unambiguous terms have stated that the defendants have decided to allow the Association open space measuring 1476 sq. ft. lying between Poma Shed and Grower Shed on the basis of license fee at the rate of 0.50P per sq. ft. per month from 11.4.90 till further orders. Again, vide letter No.F.2(27)/89-Allot/POMA/APMC/ENF/44 dated 12.02.93, the Deputy Secretary of the defendant had requested the plaintiff to deposit the outstanding dues/license fee of Rs.lO,87,499.80P. for the period up to 31.1.92 on old rates. Total area taken up jointly by Poma and Apmc Officers has been worked out to 53265.71 sq. ft. In view of the letter dated 12.2.93 and the letter referred to by me earlier it cannot stand to reason the stand of the defendant that the licenses of the plaintiff were terminated in 1982 and thereafter the plaintiff are only trespassers. The letters mentioned above belied the stand of the defendants. thereforee, the authorities cited by the learned counsel turn the defendants, D.H. Maniar and others v. Waman Laxman Kudav : [1977]1SCR403 , Chandu Lal v. Municipal Corporation of Delhi : AIR1978Delhi174 and Special Leave Petition No.10792 of 1994 (Premji Ratansey Shah & Ors. V. Union of India & Ors.) are not applicable to the facts of this case. The license of the plaintiff has not been revoked rather defendants are contemplating to renew the license of the plaintiff in view of the letter dated 1.4.90 which specifically says that the license is renewed till further orders. The plaintiff has deposited a sum of Rs.lO,87,499.80P raised by the defendants on account of arrears of license fee vide letter dated 12.2.93. That being the position the license of the plaintiff cannot be revoked except as provided in sub-section (3) of Sec.35 of the Marketing Act. The arguments of the learned counsel for the defendants that notice has been given to the plaintiff vide letter dated 4.7.94 is not of much help because in the said letter in para 16 defendants have notified their intention to the plaintiff to handover within 30 days of receipt of the said notice shed (commonly known as Poma shed) failing which the defendant shall take possession of the goods lying in the aforesaid platforms. This notice is not a notice in terms of Sec.35 of the Marketing Act. The language used in the letter is explicit conveying the decision of the defendants to take possession of the Poma platforms within 30 days. The plaintiff is not given any opportunity to show cause. thereforee, in my opinion said notice cannot be termed as notice contemplated by sub-sec.(3) of Sec.35 of the Marketing Act. As there is no valid revocation of the license I need not go in other points raised by learned counsel for both the parties. I grant injunction in favor of the plaintiff against the defendants restraining them from taking any action in pursuance to their impugned letters dated 14.6.94, 4.7.94 and 13.7.94 in the absence of any valid notice. The application is allowed. Parties are left to bear their own costs.
(15) Written statement be filed within four weeks. Rejoinder thereto, if any, within two weeks thereafter. To be listed on 19th October, 1994, before the Joint Registrar for admission and/or denial of documents. Thereafter, the matter be listed before Court for framing of issues.