1. GHULAM MUSTAFA MENGAL, J. --- The petitioners have flled the instant amended Constitution petition seeking declaration that the Notification dated 4.11.2010 issued by respondent No. 2 to the extent of termination of Chairman and Vice-Chairman of Market Committee, Dera Murad Jamali i.e.f. 5.11.2010 is totally lllegal and violation of Section 10 of the Baluchistan Agriculture Produce Market General Act, 1991 and Section 13 of General Rules, 1995, is totally without lawful authority and jurisdiction and of no legal consequences.
2. Brief facts as asserted in petition are that the Market Committees are established under Baluchistan Agriculture Produce Markets Act, 1991 (Baluchistan Act No. 1 of 1991) and its affairs are being regulated under the provisions of Baluchistan Agriculture Produce Market General Rules, 1995. It is the case of petitioners that the Market Committee, Dera Murad Jamali falls under A- Category on the basis of income, which is exceeding Rs. 8 Mlllion. The said Committee consists of 17 members. It is the claim of petitioners that the petitioners Nos. 2 to 16 were appointed as members of Market Committee, Dera Murad Jamali vide Notification dated 6.11.2007 issued by Secretary, Government of Baluchistan, Agriculture and Cooperatives Department for a period of 3 years with immediate effect. It is further stated that in consequences of the proceedings of the meeting of the Market Committee held on 20.11.2007 petitioner No. 1 was elected as Chairman of the Committee. Thereafter the petitioner No. 1 assumed the charge of office of Chairman, Market Committee Dera Murad Jamali and was performing his duties without any interference or interruption from any quarter. However the respondent No. 1 removed the petitioner from the said post vide letter dated 9.5.2008 with any rhymes and reasons, therefore, he approached this Court by means of flling of C.P. No. (S) 31 of 2009 and vide order dated 15.5.2008 the operation of impugned letter dated 15.5.2008 was suspended by this Court and thereafter the petitioner was re-instated as Chairman, Market Committee, Dera Murad Jamali and since the grievance of the petitioner was redressed by the respondents, therefore, the petition was not pressed, as such the same was dismissed as withdrawn vide order dated 21.5.2009. It was further stated that the petitioner No. 1 after re-instating continued discharging his duties as.
3. Chairman of the Market Committee Dera Murad Jamali, which consists of two Districts namely Jaffarabad and Nasirabad. Meanwhlle the respondent in violation of provisions of Act and rules issued a Notification dated 9th September, 2009, wherein additional charge was given to Mr. Ghulam Sarwar, District Officer, Soll Fertllity and Mr. Mumtaz Ali, Secretary, Market Committee was caretaker Administrator and Secretary Market Committee, Dera Murad Jamali at Usta Muhammad.
4. The petitioner No. 1 preferred a Constitution Petition bearing No. (S) 88 of 2009 before this Court and vide order dated 16.9.2009 it is clarified that petitioner No. 1 wlll continue to exercise all powers vested to him in accordance with Act and rules as Chairman, thereafter the petition was disposed of vide order dated 10.12.2009. It is also stated that the terms of office of petitioner No. 1 is to expire on 31.11.2010, but the respondent with male fide intention, in excess and misexercise of authority and contrary of Rule 13 of the Baluchistan Agricultural Produce Market General Rules, 1995 and Section 10 of the Baluchistan Agriculture Produce Markets Act, 1991 has issued the Notification dated 4.11.2010 and is now intending to appoint an Administrator in place of petitioners. Following prayer was made in the petition:---
(A) Declaring that the intended action of the respondent in appointing Administrator to look after the affairs of office of Chairman Market Committee, Dera Murad Jamali by not allowing the petitioner Na 1 to hold the said office untll his successor is appointed is totally lllegal unlawful in excess and mis-exercise of the authority vested in him and is in violation to the provision of Baluchistan Agricultural Produce Market Act, 1991 as well as contrary to the provision of Section 13(1) of Baluchistan Agricultural Produce Market General Rules, 1995, therefore, is of no legal consequence.
5. (A-1) Further declaring that the Notification dated 4.11.2010 issued by the respondent No. 2 is in violation to the provisions of Section 10 of Baluchistan Agriculture Produce Market Act, 1991 and of Rule 13 of Baluchistan Agriculture Produce Market General Rules, 1995 as well as have been issued in excess and misexercise of authority vested in Respondent No. 2, thus is without lawful authority and jurisdiction and of no legal consequences.
(B) After having declared so, to allow the petitioner No. 1 to hold office of a Chairman Market Committee, Dera Murad Jamali tlll his successor is appointed in view of Rule 13(1) of the Baluchistan Agriculture Produce Market General Rules, 1995.
(C) Permanently restraining the respondent from issuing any order/notification regarding appointment of an officer/administrator to hold/look after the affairs of office of Chairman Market Committee, Dera Murad Jamali.
(D) Any other relief, which this Hon'ble Court deems fit and appropriate may also be awarded with cost of the petition in favour of the petitioner, in the interest of justice.
6. We have heard Syed Ayaz Zahoor Advocate, learned counsel for petitioner and Mr. Rehmatullah Sadoza, Advocate, Legal Advisor, Market Committee alongwith Mr. Abdul Rahim Mengal, Assistant Advocate General appeared on behalf of respondents.
7. It has been contended by Syed Ayaz Zahoor learned counsel for the petitioner that the petitioner No. 1 was elected as Chairman while the remaining Petitioners were appointed as member of the Market Committee for a period of three years and that period was expired on 5.11.2010 and as per Rule 13(1) of Baluchistan Agricultural. Product Market General Rules, 1995 and Section 10 of the Baluchistan Agricultural Produce Market Act, 1991 they could not be removed until their successor is appointed. Section 10 of the Baluchistan Agriculture Produce Markets Act, 1991 provides that every member shall hold office for a period of three years from the date of his appointment and if on the expiry of this period no person is appointed to succeed him, such member shall hold office untll his successor is appointed. Similarly the term of petitioner No. 1 is to be expired on 5.11.2010 and, as per provision of Rule 13(1) of the Baluchistan Agriculture Product Market General Rules, 1995 a Chairman and Vice-Chairman hold his office until his successor is appointed but in the instant case the respondent in excess and mis-exercise of authority vested to him under the provision of Act of 1991 and Rules of 1995 is intending to appoint an Administrator to look after the affairs of the Market Committee, instead of allowing the petitioners to continue as per provisions of Rule 13(1) of the Rules and Section 10 of the Act.
8. On the other hand learned Legal Advisor to the Market Committee, contended that the petitioners were appointed as member of Market Committee, Dera Murad Jamali for a period of three years from 6th November, 2007 and their tenure as member has already been expired on 5th November, 2010 on completion of three years. He further contended that Rule 78(1) of the Rules empowers the Government to declare that the functions of the market committee be exercised by Extra Assistant Director of Agriculture Market Committee or such persons or persons as it may direct for interim period' tlll the finalization of the appointment of new members and for this purpose publication has been made in the dally Mashriq, Quetta dated 2.12.2010 and applications have been invited for the years 2010 to 2013 and the last date for submission of application is 18.12.2010, as such no lllegality has been committed by the respondent and the petition is liable to be dismissed.
9. We have carefully considered the submissions of the learned counsels for the parties and perused the record. For the proper appreciation of the point in issue, it would be appropriale to reproduce Section 10 of Baluchistan Agriculture Produce Markets Act-I of 1991, as well as Rule 13 of the Baluchistan Agriculture Produce Market General Rules, 1995 as under:--- "10. PERIOD OF OFFICE MEMBER.-- Subject to the provisions of Section 13 every member shall hold office for a period of three years from the date of his appointment and if on the expiry of this period no person is appointed to succeed him, such member shall unless the Government otherwise directs, continue to hold office untll his successor is appointed.
13. TERM OF OFFICE OF CHAIRMAN AND VICE-CHAIRMAN AND FILLING OF CASUAL VACANCIES.-- (1) A Chairman and Vice-Chairman elected under the rule 12 shall hold office during the period of membership and if on the expiry of this period no person is appointed to succeed him, such member shall, unless Government otherwise directs, continue to hold office of a Chairman or Vice- Chairman until his successor is appointed.
(2) A Chairman or Vice-Chairman shall cease to function as such:
(a) on the termination of membership;
(b) on his resignation in writing, being accepted by the Government; or
(c) death
(3) If office of a Chairman or Vice-Chairman falls vacant , before the expiry of full term, it shall be fllled by selection at a meeting of the market committee, called presided over and conducted in accordance with the provision of rule 12.
10. The plain perusal of section 10 clearly provides that every member shall hold office for a period of three years from the date of his appointment and in any case, if no person is appointed to succeed, he shall continue to hold the office, until his successor is appointed. Simllarly Rule 13 of Rules provides that a Chairman shall hold his office during the period of membership and if on the expiry of this period no person is appointed to succeed him, such member shall, unless Government otherwise directs, continue to hold office of a Chairman untll his successor is appointed.
11. Section 12 provides that the market committee shall elect from amongst its member, the Chairman and Vice-Chairman. A definite tenure has been provided for market committee and members thereof and is not relatable to Chairman and Vice-Chairman. The contention of learned counsel that the petitioners being members and Chairman of the Market Committee can hold office untll their successor is appointed is not correct. The word unless Government otherwise directs to continue to hold office of Chairman has been mentioned in Section 10 of the Act and Rule 13 of the Rules, thus it depends upon the discretion of the Government and the petitioner cannot claim as of right to continue tlll new members of the committee are appointed.
12. It would be profitable to reproduce Rule 78 of the Baluchistan Agriculture Produce Market General Rules, 1995, which reads as under:--- "78. EMERGENCY POWER SUPERCISSION OF MARKET COMMITTEE: As provided under Section 35 of Baluchistan Agricultural Produce Market Act, 1991, Government is pleased to make rule 78 as under:-
(a) declare that the functions of the market committee shall, to such extent as may be specified in the notification be exercised by Extra Assistant Director of Agriculture (Market Committee) or such person or person as it may directs;
(b) assume to itself all or any of the powers vested in or exercisable by any market committee, and such notification may contain such incidental and consequential provision as may appear to Government to be necessary or desirable for giving effect to the objects of the notification.
(c) If the Government dissolves the committee due to its poor performance, undesirable activities damaging the interests and prestige of the committee or the public.
13. The above provision of the Rules has expressly empowered the Government to declare that the functions of the Market Committee shall, to such extent be exercised by Extra Assistant Director of Agriculture (Market Committee) or such person or persons as it may direct. In the instant case election process for electing the new member of the committee is on pipe line.
14. For the reasons mentioned above we see no merits in this petition, which is accordingly dismissed, with no order as to costs.