IQBAL HAMEED-UR-RAHMAN, J.--- Through this Constitutional petition, the, petitioner has called in question Notification No. DIR.(FB)/104/G, dated 23.4.2008 issued by the Government of the Punjab, Agriculture Department (Marketing Wing), 21-Davis Road, Lahore, with a prayer that the same be set aside and he be restored and allowed to continue to work as an Administrator, Market Committee, Gujrat, till the constitution, of the new Market Committee, Gujrat.
2. The brief fadts succinctly required for the determination of the instant writ petition are that the petitioner was appointed as Administrator, Market 'Committee, Gujfat, wide Notification No. SO.(E)
3-2/2005, dated 19,11.2005. Thereafter, on assuming the office, the petitioner has _ been working as Administrator, Market Committee, Gujrat, till the issuance of the notification dated 23.4.2008. During this period, the petitioner had been exercising the powers and performing the functions of the Market Committee, Gujrat, under the Punjab Agricultural Produce Markets Ordinance, 1978 and it is stated by him that there was no complaint of any nature against him from any corner.
3. On 23.4.2008 the Secretary, Government of the Punjab, Agriculture Department-respondent No. 2 vide notification dated 23.4.2008 (Annex-A) removed the petitioner as Administrator in exercise of the powers under ' section. 33 of the Punjab Agricultural Produce Markets Ordinance, 1978, declaring that the Governor of the Punjab was pleased to order that during the pendency of the constitution of all the Market Committees in Punjab, the functions of Administrators of the Market Committees shall be performed by the officers of the Agriculture Department mentioned against each of the Market Committee in the impugned notification with immediate effect and shall continue till further orders. In the case of the petitioner, the District Officer Agriculture (Extension), Gujrat, had been nominated as Administrator. Thereafter, respondent No. 5 has assumed charge of the Administrator of Market Committee, Gujrat, hence, this writ petition.
3. It is urged by the learned counsel for the petitioner that, in the first instance, the impugned notification has been issued without affording an opportunity of being heard to the petitioner, as such, it is hit by the maxim "audi alteram partem." It is further urged that the impugned notification has been issued in exercise of the powers under section 33 of the Ordinance, 1978, without assigning any reason for the same. Further argues that it is itself laid down in section 33 of the Ordinance that such powers are to be exercised in emergency situation only. No such emergency existed at the time of issuance of the impugned notification as apparent from the same itself as its contents did not reflect any emergency situation warranting issuance of the same. The basic ingredients for invoking section 33 of the Ordinance could be that when the Market Committee was not functioning and there existed a complete collapse of the same and ill, this regard he placed reliance on 1988 SCM R 155. It is further argued that the spirit of the law to constitute Market Committee is that a local and statutory body is to be run by people elected or any other persons who is from the public is appointed as an Administrator other than a person who is a Government officer, as such, the appointment of respondent No. 5 as Administrator goes against the spirit of law as well as against the Constitution of the country which guaranteed and emphasized the principle "of the Government of the people by the people and from the people." In the circumstances, it is stated that the impugned notification cannot sustain. It is further urged in legal frame that the issuance of notification under section 33 of the Ordinance after insertion of section 28A in the Ordinance, section 33 has become inapplicable and it can be said that it has considered to have been repealed. In view of section 28A of the Ordinance, which is a comprehensive provision has authorized the petitioner as Administrator to exercise all powers and perform all functions of Market Committee, Gujrat, as such, section 33 of the Ordinance does not cater/provide any power to the Government to issue any notification for giving powers of the Market Committee to anyone but the instant section 33 of the Ordinance speaks for declaring that certain incidental functions of the Committee shall be performed by the Government or such person as directed. It is further argued that the powers under section 33 of the Ordinance for the appointment of Administrator in the Market Committee could only be exercised by the Government when the Administrator Market Committee was not performing its functions.
4. Before concluding his argument, learned counsel for the petitioner has emphasized while adverting to para-2 of the petition wherein it is stated that the petitioner has been performing his functions according to the provisions of the Ordinance as well as Rules and there was no complaint of any nature from any corner against the petitioner in this regard. It is stated that the respondents have not denied this factum while filing their reply/comments as such there is an admission on the part of the respondents to the effect that there is no allegation against the petitioner and no illegality has been committed by the petitioner. In the circumstances, it is alleged that the impugned notification has been issued with mala fide intention on the basis of political whims and as such the impugned order be declared as to have been passed arbitrary and has prayed that the petitioner be restored as Administrator of the Market Committee, Gujrat, till the constitution of the new Market Committee, Gujrat. Learned counsel went on arguing that this writ petition be accepted and the impugned notification be declared to be null and void as it is a stigma on the reputation of the petitioner. In this regard reliance is placed upon the case of Abid Hasan & others v. P.I.A.C. & others (2005 SCM R 25).
5. On the other hand, learned Additional Advocate General argued that after the expiry of normal tenure of Market Committee in the year 2005, the Government appointed Administrators from the Public. In view of the same, the petitioner had been appointed under section 33 of the Punjab Agricultural Produce Markets Ordinance, 1978 as such he is also the product of the said law and adverting to section 28 of the Ordinance, it is stated that if, in the opinion of the Government, a Market Committee is incompetent to perform or persistently makes default in performing its duties imposed on it by or under this Ordinance or abuses its powers, the Government may, by notification can supersede the said Market Committee and may appoint any person to manage the affairs of the Market Committee and section 28A provides for an interim arrangement for a period of 90 days by dissolving the Market Committees and appointment of Administrators.
Keeping all this in view, the petitioner Shaukat Mahmood, Advocate, questions the impugned order when he himself had been appointed as an Administrator in the year 2005 vide notification while exercising powers under section 33 of the Ordinance. It is stated that through the notification of 1998, the Market Committees were dissolved and political persons like the petitioner were appointed as Administrators as is apparent from the letter dated 5.11.2005 wherein a request had been made to remove the Administrator and to appoint the petitioner Shaukat Mahmood, Advocate, in his place as an Administrator. Thereafter, G.M. Sikandar, the Principal Secretary to the then Chief Minister, Punjab, approved the appointment of the petitioner on 17.11.2005, as such, the petitioner has no locus standi to seek the instant relief through this petition. The same merits dismissal. Finally argued that Government of the Punjab has rightly issued the notification and that this Court had also decided cases including W.P. No. 8799/07, W.P. No. 17658/04 and W.P. No. 6674/06 in favour of the respondent-Department.
6. On behalf of respondent No. 5, it is argued that when the instant writ petition had been filed by the petitioner, no allegation had surfaced against the petitioner. It is only subsequently after the taking over of the new Administrator that glaring irregularities have been discovered relating to the tenure of the petitioner. He further argued that the impugned notification has been passed in accordance with law as there is no irregularity or illegality in the order so that this Court can interfere with the same in exercise of the Constitutional jurisdiction.
7. Arguments heard, material available on record perused as well as the relevant provisions of law have been examined carefully.
8. The questions which require for determination in this petition is whether the powers under Section 33 of the Ordinance, 1978, can be exercised only keeping in view the relevant prevailing conditions in the Market Committee necessitating the exercise of the emergency powers given under the said section. Section 33 of the Ordinance is reproduced below for ready reference:--- "33. Emergency powers.-- If at any time Government is satisfied that a situation has arisen in which the purpose of this Ordinance cannot be carried out in accordance with the provisions thereof, Government may by notification:-
(a) declare that the functions of the market committee shall, to such extent as may be specified in the notification, be exercised by Government or such person or persons as it may direct;
(b) assume to itself all or any of the powers vested in or exercisable by any market committee; Any such notification may contain such incidental and consequential provisions as may appear to Government to be necessary or desirable for giving effect to the objects of the notification."
9. On the examination of section 33 of the Ordinance, 1978, it has become quite clear that the same is to be exercised on the existence of certain emergency situation. In this view of the matter, the Government may declare that the functions of the Market Committee shall to such extent as may be specified in the notification to be exercised by the Government or any such person or persons at it may direct or assume to itself all or any of the powers vested or exercisable by a Market Committee and 'such a notification may contain incidental and consequential provisions as may appear to Government to be necessary or desirable for giving effect to the objects of the notification.
10. In the instant case, the .Respondents have not been able to place on record any material against the petitioner to justify the exercise of the emergency powers under Section 33 of the Ordinance. As is apparent from the comments as well as the arguments addressed at the bar by the counsel for respondent No. 5 that prior to the filing of the instant writ petition no material was available with the respondents, as such, the same has not been given in the notification and the same has been discovered only after the filing of the writ petition by the petitioner. In the above perspective, while examining the impugned order, it is quite clear that no reasons or allegations or illegalities being committed by the petitioner have been taken into consideration while issuing the impugned notification. In view of the same, it could be said that the impugned notification has been issued in excess of the powers given under Section 33 of the Ordinance of 1978, as such, it has been issued in an arbitrary manner illegally. It is also provided in Section 33 of the Ordinance that till the reconstitution of the new Committee, the incumbent Administrator shall continue to functions and in this regard I am fortified by law laid down by this Court in its Judgment in the case of Mian Tajammal Hussain and 7 others v. Province of Punjab through Secretary, Agriculture Department (1990 M LD 570). The relevant para-6 of the judgment at page 574 of the report is reproduced hereunder:-
6. From the above analysis it becomes clear that the scope of section 33 of the Ordinance is different from that of section 28 of the Ordinance. In the present case though the order purports to have been passed under section 33 of the Ordinance but taking into consideration the consequences and effect flowing therefrom, there can be no manner of doubt that what was sought to be achieved by the respondent was the complete doing away with the committee itself.
Though the language used in the notification appears to be rather vague and confused, but if it is read in the light of the comments, it becomes abundantly clear that the action was treated by the Government itself as supersession of the Committee. The notification in question directs that the members shall cease functioning under the enactment with immediate effect but the period of such cessation has not been specified and it thus appears that the cessation was to ensure indefinitely. In the last para of the notification while appointing the Administrator it has been stated that this appointment shall remain in force till the constitution of the market committee. In the parawise comments as also the report which is signed by respondent No. I it has been specifically mentioned that the Government of Punjab had by the impugned notification superseded. , the market committee. Such an action is clearly not within the contemplation of section 33 of the Ordinance which empowers the Government to take over the functioning of the committee to a specified extent but does not provide for the suspension or supersession of the committee or cessation of membership. If an action is taken under section 33 of the Ordinance, the question of reconstitution of the committee does not arise for the committee as the committee allegedly forced continues to exist. The impugned action is, therefore, clearly outside the purview of the section 33 and is of no legal effect. It is also to be noticed that it is not the case of the respondents that after passing the order under section 33, some further steps, except the reconstitution of Committee are being taken."
11. In view of what has been discussed above, this petition is accepted and the impugned notification dated 23.4.2008 (Annexure-A) is declared to be without lawful authority and is set aside. The result is that the petitioner shall continue to work as Administrator, Market Committee, Gujrat, till its reconstitution. No orders as to costs. . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.