' MAULVI ANWARUL HAQ, J.---The petitioners feel aggrieved of a notification issued by the Governor of Punjab published on 25-9-1996 whereby the rate of market fee per 100 Kg. Chargeable by Market Committees has been prescribed inter alia, for ginned cotton (lint).
2. Learned counsel for the petitioners contends that the petitioners have already paid market fee on the un-ginned (Phutti) and the lint being a sub-produce of the Phutti, the market fee cannot be imposed on the same. It has further been argued that no corresponding service is being offered or rendered in lieu of the fee. Finally, the learned counsel has argued that the lint is not an agricultural produce and he cited the case of Bhabhoot Singh v. Ghanshyam Durga Prasad AIR 1962 Raj.
82. Learned A.A.-G. Is of the opinion that the matter sought to be raised stands resolved by a Full Bench of this Court in the case reported as Messrs Crescent Jute Products Ltd. Through Director v.
Government of the Punjab, Agriculture Department through Secretary PLD 2004 Lah.
686. Mr. M. Ramzan Khalid Joya, Advocate, learned counsel for the respondent, on the other hand, draws my attention to the provisions of the main Ordinance itself i.e. The Punjab Agricultural Produce Markets Ordinance, 1978 (hereinafter to be referred to as the said Ordinance) to urge that the ginned cotton is and agricultural produce.
' According to him, the fee is not being paid and at the moment, the question of provision of service cannot be taken note of. He also argues that the fee is charged on the basis of transaction of sale and purchase and only such transactions are subjected to the payment of fee which take place within the notified market areas.
3. I have considered the said contentions of the learned counsel for the parties. Now the said notification (Annexure "A") being questioned amends sub-rule (10) of Rule 36 of the General Rules, 1979, framed under the said Ordinance. Now agricultural produce is defined in section 2(a) of the said Ordinance itself and under sub-clause (iii), cotton whether un-ginned or ginned, or its waste all are meant to be agricultural produce. Now the fee is levied under section 19 of the said Ordinance, 1978 and the fees are levied at the rates prescribed on the agricultural produce bought or sold by or through a dealer in the notified market area. The exceptions to this general Rule are also provided in the said section 19. To my mind, the precise contention being raised by the learned counsel for the petitioners is somewhat covered by sub-clause (c) of proviso to section 19 of the said Ordinance, 1978 which is as follows:--
(c) no fee shall be leviable in respect of any subsequent transaction of sale or purchase within the same notified area of a agricultural produce extracted after being subjected to manufacturing processing . "
' Now these provisions came to be examined by the learned Full Bench of this Court in the said case of Messrs Crescent Jute Products Ltd. Through Director, as is reflected in question No.(vi) in para.34 of the report at page 707 thereof. The question is as follows:-- "(vi) Whether the concerned Market Committee could levy market fee on an agricultural produce extracted after being subjected to manufacturing or processing?"
' This question has been answered in para.49 of the report at page 715 as follows:-- "49. As far as question No.(vi) is concerned, the departmental representative in attendance on behalf of the Market Committee explained that in case no market fee was paid on the purchase of sugarcane only then the product will be liable to levy of fee. It may also be noted that under section 19(c) fee is not leviable in respect of any "subsequent transaction, sale or purchase within the same notified area (underlining is ours) of an agricultural produce extracted after being subjected to manufacturing processing". What is prohibited by section 19(c) is the fee on the resale and purchase of agricultural produce within the same notified market area. In principle we are inclined to agree with the learned counsel that in case market fee is paid on sugarcane in a notified market area of a particular Market Committee then the product i.e. Sugar will not be liable to any fee in the same notified market area. This is, however, a question of fact and cannot, be determined in these proceedings. If any of the petitioners claims exemption from payment of fee on the basis of section 19(c) of Ordinance XXIII, he will have to agitate the issue before the concerned authorities. Question No.(vi) is accordingly, answered."
4. Now, in the present case, the plea taken by the respondent No.2 is that the fee is being claimed only for the ginned cotton that has been purchased by the petitioners outside the notified area of market and brought there and they had stated that no market fee can be charged on the sale or purchase within the same notified market area of any agricultural produce manufactured or extracted from the agricultural produce in respect of which the market fee has already been paid.
5. To my mind, the said levy and charge of the fee is in order as section 19 of the said Ordinance, 1978, is to be read along with Rule 36 of the Rules framed thereunder particularly Rule 36(8)(c) thereof.
6. Now so far as the said judgment in the case of Bhabhoot Singh is concerned, I am afraid nothing turns on the same in favour of the petitioners for the simple reason that in the said judgment the provisions of Code of Civil Procedure pertaining to the attachment of agricultural produce were being considered and the words being relied upon by the learned counsel are the words of Rule 44 of Order XXI, C.P.C. The two enactments not being in pari materia, the expressions used in the Code of Civil Procedure for effecting attachment for execution of decree, passed thereunder cannot at all be referred to when the said Ordinance, 1978, itself clearly defines an agricultural produce on which the fee is to be levied.
7. This leaves the contention of the learned counsel as to the non-provision of service. Here again I will be agreeing with Mr. M. Ramzan Khalid Joya, Advocate, as his contention is fully supported by the case of Pakistan Floor Mills Association and another v. Government of Sindh and others 2003 SCM R 162 wherein their Lordships declined to consider the said plea by observing that the matter of the provision of service would arise only when the fee has been paid. The said contention is accordingly rejected. The writ petition accordingly is dismissed but with the same observations as were made in para.58 of the said judgment in the case of Messrs Crescent Jute Products Ltd.
Through Director by the learned Full Bench of this Court. No orders as to costs.