1. ' Through this writ petition, Muhammad Azam, petitioner has challenged the judgment and decree passed on 9-2-2004 by the Chairman Arbitration Board, Market Committee, Khanpur, by which the petitioner was directed to pay Rs,8,00,000 to respondent No,2 Muhammad Aslam. The facts as admitted between the parties are that petitioner had settled a contract with respondent No,2, Muhammad Aslam, to obtain the lease of the fruits of his gardens, situated in Chak No,32/P, and Chak No,35/P of Bagh-o-Bahar, Tehsil Khanpur for two years commencing from March, 2002. Out of total lease amount, Rs,8,00,000 had remained to be paid by the petitioner, which amount could not paid by the petitioner because of Pakistan Army had occupied the fruit farms in the year of December, 2001, and due to this unexpected happening, petitioner suffered a loss and contract was revised between the parties. As the amount of Rs,8,00,000 settled was not paid by the lessee, therefore, an application was filed by Zafar Ali Zafar who was Manager of Aslam Fruit Farm before the Arbitration Board, market Committee, Khanpur, for the recovery of Rs,8,00,000 against the present writ petitioner. Reply in the shape of an application for dismissal of the case was presented by the present writ petitioner before the Chairman, Arbitration Board but the aforesaid Board announced his decision and directed the petitioner to pay Rs,8,00,000 to respondent No,2.
2. Aggrieved from that decision, present writ petition has been filed.
2. Learned counsel appearing on behalf of the writ petitioner has raised the following questions/propositions for resolution:--
(i) The Chairman, Arbitration Board had no jurisdiction to pass the impugned decision because both the parties were not "Growers" as envisaged by section 2(6) of the Punjab Agriculture Produce Market Ordinance, 1978. To give force to his arguments, he has referred to Mehr Sakhi Muhammad v. Board of Arbitrators and another 1990 SCM R 1595, Khalid Abbas v. Deputy Commissioner/Collector, Okara and others NLR 199 Rev. 177, Manzoor Hussain v. Board of Arbitrators, Market Committee, Khanewal 1984 CLC 1585.
(ii) Zafar Ali Zafar who had filed the petition before the Arbitration Board was not a contracting party and had no power to file the aforesaid petition. Statement of the parties were to be recorded by the Arbitration Board before proceeding with the merits of the case. As the Board had failed to decide this important objection, therefore, the decision of the Board was liable to be set aside.
(iii) According to. Section 24 of the Punjab Agricultural Produce Market Ordinance (XXIII of 1978), (hereinafter referred to as the Ordinance of 1978) the petition had to be presented/filed initially before the Government, which was competent to entrust it to the Arbitration Board. As the petition was not filed before the Government so the cognizance taken by the Arbitration Board was illegal and without jurisdiction.
(iv) Seth Muhammad Aslam was sitting Chairman of Market Committee, Khanpur, therefore, Board was not authorized to entertain and adjudicate upon the dispute under section 24(3) of the Ordinance of 1978.
(v) Seth Muhammad Aslam has got compensation from the Pakistan Army for the loss of the fruits of his garden, therefore, he cannot take double benefit for the same subject-matter. Decision of the Arbitration Board was, therefore, not sustainable in the eye of law.
3. Learned counsel appearing on behalf of respondent No,2 Seth Muhammad Aslam, has replied that:--
(i) Section 24 of the above-mentioned Ordinance has conferred jurisdiction upon Arbitration Board to entertain and adjudicate the case where both are growers or one of the parties is of dealer and other is grower. If both the parties are dealers, then Arbitration Board shall not have jurisdiction to entertain such a case.
(ii) When there is a buyer and seller of agricultural produce and a dispute arises between them, even then Arbitration Board has got the jurisdiction to decide that dispute. To support his arguments, learned counsel has referred to Rules 50 and 79 of the Punjab Agricultural Produce Market (General) Rules, 1979 to support his contention.
(iii) So far the objection of Seth Muhammad Aslam, being member of Chairman, Market Committee is concerned, it has been replied that bar to entertaining of a dispute would be when a Member of the Arbitration Board has direct interest in the matter under reference, otherwise it was not applicable. As respondent No,2 was not the Member of the Board, therefore, prohibition contained in section 24 of the aforesaid Ordinance was not of any avail to the present petitioner in the case.
(iv) The objection with regard to the jurisdiction of the Arbitration Board raised by the present writ petitioner was taken note of by the Arbitration Board and was correctly decided in its decision vide impugned judgment.
4. The objections, replies submitted with argumentative reasons from both the learned counsel, and with their assistance, the perusal of the record and the law have brought me to reach at the following conclusions:--
(a) Zafar Ali Zafar had filed the petition because he was Manager of Aslam Model Farm and had the power of attorney on behalf of Seth Muhammad Aslam. Therefore, he was allowed to represent Seth Muhammad Aslam in the proceedings of the Arbitration Board. Zafar Ali Zafar, being an authorized agent of Seth Muhammad Aslam, has not been denied and contradicted by the petitioner in this Court, even which fact was noted and decided by the Board also in favour of respondent No,2. Therefore, the decision passed by Arbitration Board cannot be upset on this score.
(b) The vital question is as to whether Arbitration Board had got the jurisdiction to entertain and decide the matter in dispute. For ready reference and perusal of the relevant law, section 24 of the Ordinance of 1978 is reproduced as, below:-- "24. Arbitration Board.--- (1) The Government may, by Notification direct that all or any of the disputes, other than a dispute to which all the parties are dealers, arising in a notified market area, and relating to such matters connected with agricultural produce as may be prescribed shall be referred to a Board of Arbitrators constituted under this Ordinance in such manner, for such period and subject to such provisions as may be prescribed.
(2) The Board shall receive and record evidence, and shall have power to administer oaths to parties and witnesses, and, on requisition in writing signed by the Chairman of the Board, the Magistrate authorised by the District Magistrate in this behalf shall issue necessary processes for the attendance of witnesses and the production of documents and material objects required by the Board, and may enforce the said processes as if they were processes for attendance and for production before himself.
(3) No member of the Board, who has a direct interest in the matter under reference shall take part in the consideration or discussion of or vote on any question with respect to the said matter.
(4) The decision of the Board of Arbitrators shall be in accordance with majority of votes.
(5) If a majority of votes is not in favour of any proposed decision, the opinion of the Chairman of the Board shall prevail.
(6) The decision of Board of Arbitrators shall-
(a) be enforced by a Civil Court having jurisdiction as if it were a decree to that Court; and
(b) be final and shall not be questioned in any Court."
3. ' Subsection (1) of section 24 of the Ordinance of 1978 has provided three ingredients for the commencement of jurisdiction of the Arbitration Board:--
(i) The dispute must be arising in a notified market area.
(ii) It should be with regard to matters connected with agricultural produce as may be prescribed.
(iii) The parties to the dispute should not be dealers.
4. ' While Rule 50(1) of the Punjab Agricultural Produce Market (General Rules, 1979 has also given out some clarification with regard to persons and nature/kinds of disputes to be resolved by the Board, which is as follows:--
(1) Where any dispute arises between buyer and seller of agricultural produce of any kind, including disputes regarding the quality or weight or price of the agricultural produce, regarding the allowances of wrapping for containers, for dirt or for impurities or about deductions to be affected due to any reason or in regard to unfixed bargain (Mudda), the party or parties aggrieved may refer the dispute for settlement thereof in accordance with the provision hereinafter provide: ' Provided that the Board of Arbitrators shall not entertain any dispute pertaining to unfixed bargain (Mudda), where a written agreement has not been executed between the buyer and seller.
5. ' Notified market area has been defined in section 2, clause (k) of the Ordinance of 1978, which is as follows:-- "(k) 'notified market area' means any area notified under section 4 of this Ordinance."
6. 'According to this clause, before proceeding with the dispute, it has to be proved on the record that the matter in dispute, with regard to the recovery of Rs,8,00,000 as lease money for the fruits of the gardens of respondent No,2, had arisen within the notified market area as notified under section 4 of the Ordinance of 1978. No such notification has been brought on the record by any of the party.
7. Therefore, at present it cannot be declared that the dispute had arisen within the notified market area as noted above.
(c) Another essential provided by section 24 of the Ordinance of 1978 is that matter should be related to the agricultural produce. The definition of agricultural produce has been provided in clause (a) of section 2, in which agricultural produce has been defined. Sub-clause (vi) has brought into its encompass the fruits and vegetables also, which is given as under:-- "2(a)(vi) fruits and vegetables (fresh and dry) and their squashes, jams, pickles, cordials, marmalades, chutnies, sauce, jellies."
8. ' Another relevant clause has been provided by clause (g) of section 2 of the Ordinance of 1978.
9. This clause has defined "grower" which is meant as:-- "A person who by himself or through tenants or otherwise grows, rears, produces, manufactures or processes agricultural produce but shall not include a person, other than a member of a society registered under the Cooperative Societies Act, 1912, who works as a dealer or broker either individually or as a partner of a firm of dealers or brokers or is otherwise engaged in the business of disposal, storage or processing of agriculture produce."
10. 'So, all these provisions noted above show that respondent No,2 and the petitioner were growers and not dealers because of the definition provided by section 2 of the Ordinance of 1978.
11. Respondent No,2 had validly referred the dispute to the Arbitration Board yet the Board had to exercise that jurisdiction when it was brought on the record that the matter had arisen within the notified market area of the Board.
(d) Rule 50 of the Punjab Agricultural Produce Market (General Rules, 1979 has rightly been pointed out that functions of Board of Arbitrators relate to the dispute which has arisen between buyer and seller of agricultural produce of any kind. So, seen from this angle of Rule 50, both the parties had fallen within the definition of buyer and seller of agricultural produce, but Rule 7-9 has imposed restriction when it has envisaged that where a regular market has been established by the market committee with the approval of the Government, all transactions (sale and purchase) of agricultural produce shall be conducted within the market premises and not outside the same. The impact of this clause was also to be determined by the Arbitration Board before proceeding further with the case.
(e) Although Arbitration Board has made a passing reference in its decision that the amount being claimed was with regard to agricultural produce and not with regard to land, yet I do not consider it a sufficient ground for disposal of the question of jurisdiction. Arbitration Board was to consider all the prerequisites for exercise of jurisdiction, to entertain and adjudicate upon the matter in dispute. This may be one of essentials of the case but not the all ingredients as provided above for entertaining a dispute. As earlier noted, to clarify the prerequisites for exercising jurisdiction by Arbitration Board under the Ordinance of 1978, all the conditions must be fulfilled as enumerated above.
(f) So, from the essentials as provided in para.4 of this judgment, it can be easily held that the Arbitration Board has not adverted to all these points before making the impugned decision dated 9-2-2004.
(g) The writ petitioner has also referred to another important fact of respondent No,2 having received compensation with regard to the destruction of his produce of fruits from Pakistan Army and, therefore, was not entitled to get the disputed amount recovered from the petitioner, as it would be giving double benefit, for one and the same subject to respondent No,2. Although this fact was taken note of by the Arbitration Board, yet no detailed inquiry appeared to have been made by the aforesaid Board. The petitioner has shown a copy of receipt of the cheque, according to which Seth Muhammad Aslam has received a cheque of Rs,7,01,000 on account of compensation of damages of the garden fruits from Pakistan Army. As this fact has also to be probed into and needs verification, therefore, keeping in view all the above discussion, I consider it a fit case to set aside the decision dated 9-2-2004 passed by the Chairman Arbitration Board, Market Committee, Khanpur and declare it to be illegal and unlawful. Consequently, the matter is referred to the aforesaid Board for reconsideration of its jurisdiction, receipt of compensation by respondent No2.
12. And all other questions as are raised by the parties before it, and then to decide the case afresh.
13. The writ petition is, therefore, disposed of in the above terms.