Through this petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have challenged the impugned order dated 28.02.2011 passed by Special Secretary Agriculture, Marketing Department, Government of Punjab, Lahore, whereby he withdrew the final permission accorded for establishment of Fruit and Vegetable market under private sector at Sialkot
2. Brief facts of the case are that Government of Punjab vide Notification No, SO(E) 1-23/2008 dated 9.1.2008, provisionally granted permission to private sector/individuals in all over the Punjab to establish Fruit and. Vegetable markets for a healthy competition between the private and Government sector and to modernize the marketing of agricultural produce. The final permission was accorded vide Notification No, SO(E) 1-23/2008 dated 27.6.2009. Some unscrupulous persons who were not'happy with the entry of new persons in the field of agriculture marketing, filed Writ Petition No, 8009 of 2009 before this Court which was dismissed vide order dated 26.5.2009 against which the said persons filed Civil Petition for Leave to Appeal before the Hon'ble Supreme Court which was ultimately withdrawn on 22.10.2009. Thereafter, the present petitions, alongwith others shifted their business to the private Fruit and Vegetable market and established 42 shops in the Fruit market and 68 shops in the Vegetable market in addition to construction of roads and sewerage etc. after incurring a huge sum. The Market Committee has been receiving market fee from them since then.
3. On 17.10.2009, the Secretary Agriculture, Govt. of Punjab, Lahore (Respondent No, 2) suddenly withdrew the final permission granted for establishment of Fruit and Vegetable market under private sector. The said order was challenged before this Hon'ble Court vide Writ Petition No, 4762 of 2010. The said petition came up for hearing on 21.1.2011 when the same was accepted and the impugned order dated 17.10.2009 was set aside and the matter was remanded back before Secretary Agriculture (Marketing Wing), Lahore/Respondent No, 1, for decision afresh. During post- remand proceedings, instead of holding an inquiry and to pass a detailed order by Respondent No, 2, he referred the matter to Special Secretary, Agricultural Marketing Department, Govt. of the Punjab, Lahore/Respondent No, 3, who though constituted four members committee in black and white but the said committee never visited the site. The said committee submitted its report to Respondent No, 3 purportedly prepared by them after site inspection. On the basis of said report, Respondent No, 3 passed the impugned order dated 28.2.2011; hence this petition.
4. In support of this petition, learned counsel for the petitioner contends that the impugned order is against law and facts; that the report submitted by so-called committee on 15.2.2011 as well as the impugned order passed on the basis thereon are absolutely without jurisdiction; that while accepting the earlier petition filed by the petitioners, this Hon'ble Court was pleased to direct Respondent No, 1 to hold an inquiry and pass a detailed order but instead of complying with the order of this Court in letter and spirit, Respondent No, 1 illegally referred the matter to Respondent No, 3 who passed the impugned order without any jurisdiction; that all the attempts of the illegal committee constituted by Respondent No, 3 were to defend order dated 17.10.2009 passed by Respondent No, 2, thus, Respondent No, 3 illegally made the said report as basis of impugned order; that the report submitted by the four members committee is bereft of any reasoning justifying the impugned order; that Respondent No, 3 illegally held that approved map/site-plan for the private market at Daburji Malhian was not submitted is against the record for the reason that the site-plan submitted by the petitioners and others is pending with the concerned department; that the impugned order has been passed against the universally acknowledged principle of audi alteram partem as neither the petitioners were heard in person nor they were provided any opportunity to produce any material in their defence; that according to Government policy issued on 29.10.2008, a committee was to supervise the development works but instead of constituting such committee, the respondents have proceeded against the petitioners in a total illegal manner; that the reasons advanced for passing the impugned order are totally baseless; that the impugned order also runs contrary to the spirit of Government policy where-under it was decided that there should be a competition between Government and private sector; that Respondent No, 3 while passing the impugned order has not taken, into consideration that the fruit and vegetable market being fun by the Government sector, despite laps of 32 years, is still shorn of basic necessities whereas the petitioners and others have provided very up-to-date atmosphere to the farmers within a very short span of period; that the impugned order is politically motivated and the same has been passed to safe guard the hegemony et., tablished by the political high-ups; that the impugned order has been passed in sheer violation of the rights of the petitioners guaranteed by the Constitution of Islamic Republic of Pakistan, 1973, and that in case the impugned order is not set aside the petitioners are bound to starvation and they would be deprived of the fruits of their investment in the private Fruit and Vegetable market. In addition to oral submissions, learned counsel has also relied upon the cases reported as "Dr. Nighat Bibi v. Secretary, Ministry of Health"
(2009 SCMR 775), "Ferozuddin v. Mazhar Hussain Shah" (PLD 2009 Karachi 397), 'Makhdoom Muhammad Mukhtar v. Province of Punjab" (PLD 2007 Lahore 61), "Shah Sultan v. Chief Commissioner" (2004 CLC 145), "Ahmed Clinic v. Government of Sindh" (2003 CLC 1196), "Abdul Farid v. N.E.D. University of Engineering" (2001 CLC 347), "Ghulam Abid Khan v. Pakistan (2000 CLC 443), "Sarnia Rashid v. Vice Chancellor, Azad Jammu and Kashmir University Muzaffarabad" (2000 YLR 1422), "Shah Matloob v. Government of Province of Sindh" (PLD 1993 Karachi 83), 'Abdul Rauf and others v. Capital Development Authority Islamabad" (1988 MLD 1523), 'Mian Irshad Ali v. Government of Pakistan" (PLD 1975 Lahore 7) and 'Mian Fazal Din v. Lahore Improvement Trust Lahore" (PLD 1969 S.0 223).
5. On the other hand, learned Additional Advocate General, assisted by learned counsel for Respondent No, 4, while drawing the attention of this Court to Rule 67 of Punjab Agricultural Produce Market General, 1979, argues that conditions mentioned therein have not been complied with by the petitioners; that even after grant of final permission, the competent authority has the power to withdraw the same in the event of violation of the terms and conditions by the stakeholders; that since the petitioners have failed to abide by the terms and conditions on the basis whereof final permission was granted to them, they have no cheeks to challenge the order passed by Respondent No, 3 after fulfilling all the necessary formalities; that the persons who are holding Fruit and Vegetable market under private sector have built their cold storages and they used to store the fruit and vegetables after purchasing from the agriculturists and thereafter they sell them at a very high price, thus their acts are aimed at to promote hoarding and blackmailing; that even the petitioners have least bother to abide by the undertaking given by them on 12.6.2009 regarding completion of construction work; that the Civil Petition for. Leave to Appeal filed in the Hon'ble Supreme Court of Pakistan was withdrawn for the reason that the final permission granted for establishment of Fruit and Vegetable market under private sector stood already withdrawn; that the points raised by learned counsel for the petitioners need recording of evidence and the said procedure, cannot be resorted to in this petition and that in case the petition is accepted, the persons due to whom the public-at- large has already suffered a lot, would be encouraged to further blackmail the Government as well as the common men.
6. I have heard the learned counsel for the parties and gone through the documents appended with this petition. During the survey of the documents I have noted that it is third round of litigation viz. in the first round of litigation certain persons challenged establishment of Fruit and Vegetable market under private sector before this Court by virtue of Writ Petition No, 8009 of 2009 which was dismissed on 26.5.2009 against which the aggrieved persons filed CPLA No, 1170 of 2009 which was ultimately dismissed as withdrawn. In the second round, the final permission granted for establishment of Vegetable and Fruit market under private sector was withdrawn on 17.10.2009 against which the present petitioners filed Writ Petition No, 4762 of 2010 which was accepted and the matter was remanded back to the respondents for decision afresh. Again, by virtue of impugned order, the respondents have again withdrawn the final permission sanctioned for holding of Fruit and Vegetable market under private sector. Thus, in the third round the petitioners have challenged the said order of the respondents in this petition.
7. As per Notification dated 29.10.2008 the government introduced a policy for the establishment of Grain, Fruit & Vegetable. Markets through private sector. The basic concept behind this policy was to launch a healthy competition between the government and private sector. According to condition mentioned at serial (i), the petitioners were bound to get approved the map of the market from the agriculture department but till date they have not get approved the site-plan of the market rather their stance is that the matter is pending with the concerned department for approval of map of the market. Likewise, the petitioners were bound to get prepared cost estimate of all the development work from C & W department but the petitioners have also violated the said condition as they have neither got prepared estimate from C & W department nor adhered to the standard prescribed for construction. Similarly, the Management Committee has not performed its duty towards the documents relating to cost estimates, development work, allotment of plots and calculation of price thereof. Moreover, it was incumbent upon the Management Committee to ensure that an agreement between the purchasers of the shops and the said Committee was to be signed but the said Committee has not adhered to the said condition as well. To keep transparency, it was condition precedent for the Management Committee to install weigh-bridge in the market but the said condition has not been fulfilled resulting into loss of National Exchequer as it was not possible for the market committee to assess the real produce reached in the market.
Further; to streamline the work of the market, the Management Committee was required to formulate bye-laws but the Management Committee has paid no heed to the said important aspect. In view of these violations, respondents were left with no option but to recall the final permission granted for establishment of Fruit & Vegetable market under the private sector.
8. According to the principle of locus poenitentiae as envisaged under Sectioi. 21 of the General Clauses Act, an authority passing an order can recall the same. In the instant case, the competent authority with a view to provide better facilities to the public-at-large and the producers, involved the private sector in the said process. It has come to the surface that the persons who were holding private Fruit & Vegetable market had established their cold storages and used to store the Fruits & Vegetables in the said stores after purchasing from the farmers. Thereafter, they used to sell the same on a very high price which proved to be the main cause for hoarding of the eatables. In this view of the matter, the very spirit of the policy under which the final permission was granted for establishment of Fruit & Vegetable market was jolted down. E In the said situation the respondents were justified to recall the permission granted for holding Fruit & Vegetable market.
9. Another important aspect of the matter is that the complaints from the Phariias' started pouring in regarding the conduct of Management Committee in respect of allotment of shops and their price. The matter went up to the Hon'ble. Supreme Court of Pakistan. In a sense, the petitioners and others holding private Fruit & Vegetable market tried to establish their hegemony by keeping the other relating persons aloof. According to the criteria laid down for establishment of Fruit & Vegetable market it was incumbent on the Management Committee to allot 70% shops to the persons who were already dealing with the said business in the Government controlled market but to the utter disregard of the said condition, only few persons who were previously holding shops in the Fruit & Vegetable market were accommodated whereas the majority was comprising of the persons who had gloves in hands with the Management Committee to create hegemony.
10.A perusal of the report of the Committee constituted pursuant to the order passed by this Court, whereby the matter was remanded back to Respondent No, 1 for decision afresh, confirms the fact that petitioners and others were involved in such activities which were repugnant to the basic spirit of the policy under which permission for establishment of Fruit & Vegetable market under private sector was granted. On receipt of the report of the committee constituted by Respondent No, 3, petitioners were twice asked to avail opportunity of personal hearing viz. firstly they were asked to appear before Special Secretary Agriculture Marketing for personal hearing on 19.2.2011 at 9:00 a.m. However, the petitioners opted not to appear before the authority. Just to show his bona fide, Respondent No, 3 again provided him an opportunity of personal hearing on 22.2.2011.
On the said date the petitioners did not opt to avail the said opportunity. This being the position, it is not open for the petitioner to argue that they were condemned unheard.
11.The case law cited at bar by learned counsel for the petitioner quite distinguishable due to peculiarity of facts and circumstances of this case and the proposition involved in the said cases.
12.From the discussion made in the fore-going paragraphs, I have no hesitation to hold that the petitioners were involved in such activities which were totally against the spirit of the policy under which Fruit & Vegetable market in the private sector was established. Further, the petitioners and others failed to fulfill the terms and conditions, whereupon they were granted final permission for establishment of Fruit & Vegetable market under private sector and the respondents have rightly withdrawn the said permission. Moreover, the other contentions raised by the petitioners pertain to factual inquiry which proceedings cannot be ventured in this petition. Resultantly, I see no merits in this petition which is accordingly hereby dismissed.