' IJAZ UL AHSAN, J.--- The brief facts of the case are that Market Committee Bahawalnagar wanted to establish a fruit and vegetable market. It published a notice in the newspaper under Rule 67 of the Punjab Agricultural Produce Markets (General) Rules, 1979. The petitioner moved an application in this regard along with others. Consequently, mutation No,6768 was sanctioned in favour of the market committee. The petitioner offered the said land in terms of Rule 67(6)(e). Report was accordingly submitted on 29th November, 2001. It is pointed out that the report was favourable to the petitioner. Subsequently, other legal and procedural formalities were fulfilled, which culminated in for recommendation being made by Extra Assistant Director Agriculture vide his letter dated 20th January, 2001 addressed to the Deputy Commissioner Bahawalnagar. The relevant portion of the said letter stated that "The site situated at Arifwala Road belongs to Mst. Alia Riaz is very suitable having a good location for the establishment of fruit and vegetable market. The proposed site is consisting of 4 acres which is sufficient for the purpose. Therefore, I recommend the site offered by Mst. Alia Riaz for establishment of fruit and vegetable market with the request to move the case for sanction to the Director of Agriculture (E&M) Punjab, Lahore as per rule 67(4) of Punjab Agricultural Produce Markets (General) Rules, 1979."
' Pursuant to receipt of the said letter, the Deputy Commissioner, Bahawalnagar addressed a letter dated 10th April, 2001 to the Director of Agriculture (E&M) Government of Punjab. He stated in the letter that he was of the view that the site offered by Alia Riaz measuring 4-acres situated at Bahawalnagar-Arifwala Road was suitable for the establishment of new fruit and vegetable market at Bahawalnagar. He accordingly, recommended the case. On 15th February, 2002, the Secretary, Agriculture passed an order to the effect that the Governor Punjab had been pleased to accord sanction for the establishment of fruit and vegetable market at Arifwala road on the land of Mst.
Alia Riaz. It was further ordered that payment of the owner will be made as per rule 67(c) of the afore noted rules. It is pointed out that subsequent to the afore noted order, the process of allotment of plots to the shopkeepers started. In all 64 plots were carved out of the said land. 45 were required to be allotted to the commission agents, while 9 were to be put to auction. 30 out of 44 were allotted and 9 available for auction were actually put to auction.
2. In terms of Rule 56(6)(c), 1/3rd of the auction proceeds were to be given to the owner of the land i,e, the petitioner. It is the claim of the petitioner that she was entitled to a sum of Rs,52,25,000.
However, only a sum of Rs,16,00,000 was paid to her. It is significant to note that the total amount payable by the purchasers has not so far been recovered in its entirety. The matter lingered on for one reason or the other for the next seven years.
3. It appears that vide letter dated 31st January, 2009, addressed by the District Co-ordination Officer, Bahawalnagar to Special Secretary, Agriculture Market, Government of the Punjab, Lahore, it was requested that the government may be moved to review and withdraw earlier notification dated 15th February, 2002, pursuant to which the petitioner's land was earmarked for setting up fruit and vegetable market. The reason given for such request was that it was desire of the commission agents that such market be established at Chishtian Road instead of Arifwala road, which was a more suitable site. It was also requested that the requisite funds may be earmarked and released for the said purpose. Pursuant to the aforesaid letter notification dated 31st January, 2009 was issued by the Secretary Agriculture Government of the Punjab, through which sanction was accorded for establishment of fruit and vegetable market under Rule 67 of the Punjab Agriculture Produce Market (Ceneral) Rules, 1979 at Chishtian Road, Bahawalnagar. By virtue of the same notification the earlier notification dated 15-2-2002, on the basis of which the petitioner's land had been taken, was withdrawn.
4. The notification dated 31st January, 2009 was challenged by way of W.P.No,823/09. The said petition was allowed by this Court vide order dated 17-6-2009. Consequently, the impugned notification dated 31st January, 2009 was set aside with the observation that the matter be referred to the Chief Minister Punjab in accordance with rules of business, provided he considers it necessary to proceed with the matter further.
5. As a result of acceptance of the afore noted writ petition, the matter was referred to the Chief Minister Punjab. It appears that the Chief Minister was pleased to accord sanction for establishment of a Fruit and Vegetable Market at Chishtian Road in supersession of the earlier Notification dated 15-2-2002. In. Consequence, the impugned order dated 18-7-2009 was issued by respondent No,2.
6. The notification in question has been challenged before this Court through this petition. It came up on hearing on 12th August, 2009. On the said date, by way of interim relief, operation of the impugned notification dated 18-7-2009 was suspended.
7. The attention of the Court has been drawn to letters dated 4-8-2008 and 3-11-2009. It has been pointed out that in the earlier letter dated 4-8-2008 direction had been issued to expedite the process of development work on the land of the petitioner. However, vide letter dated 3rd November, 2009, it is reported that the work towards development of the fruit and vegetable market at Chishtian road was in full swing. This was despite the restraining order passed by this Court on 12th August, 2009. In this regard documents showing payments made towards development work after issuance of the restraining order passed by this Court has been made,.
8. The learned counsel for the petitioner submits that the petitioner is entitled to the benefit on the principle of locus penitential. He submits that on the basis of the notification issued in 2002, valuable rights had accrued in favour of the petitioner, which could not have been taken away without due process of law. He further submits that out of a sum of Rs,52,00,000, which was the entitlement of the petitioner, only a sum of Rs,16,00,000 has been received by her.
9. The learned counsel further submits that the impugned notification has been issued in utter violation of the Rule 67 ibid. He points out that as far as the notification of the year 2002 is concerned, which relates to the selected land of the petitioner, all legal and procedural requirements of Rule 67(2) and Rule 67(3) were duly followed, which is supported by the documents. He vehemently argued that in issuing the impugned notification Rules 67(1), (2) and
(3) were ignored and bye-passed, on the basis of which rights had accrued in favour of the petitioner. He finally argues that where law requires a thing to be done in a particular manner it must be done in that manner or not at all. Submits that the commission agents even claiming their rights never visualized.
10. The learned Addl. Advocate-Central Punjab has made an effort to defend the impugned order and the process that culminated in the order. However, when confronted with the issue of non- compliance of Rule 67 ibid, he has not been able to show from the record that the procedure required to be followed was actually followed. He has, however, submitted that there was substantial compliance.
11. The learned counsel for respondent No,8 has also opposed this petition and his main contentions are that the market committee has been constituted lawfully and if any deviation has been made from the rules the same is insignificant because substantial compliance has been done by State functionaries. He further submits that the question of publication does not affect adversely the petitioner, because it was only for the people of the vicinity, who are aggrieved. He finally submits that the public interest lies in shifting the market to Chishtian Road on account of the fact that it is at a better location.
12. I have heard the learned counsel for the parties and gone through the record. Admittedly, the process initiated for setting up the new fruit and vegetable market fell short of the procedure provided under Rule 67 of the Punjab Agricultural Produce Markets (General) Rules, 1979.. For ease of reference the relevant portion of said rules are reproduced below:---
67. Establishment of a feeder market.--- (1) The Government may allow the establishment of a feeder [Mew] market in any notified market area in manner hereinafter provided.
(2) Any person intending to establish a feeder [Mew] market within a notified market area or any market committee shall make an application to the market committee concerned, giving full details of the site where feeder market is intended to be established.
(3) The market committee shall forward the application to Extra Assistant Director of Agriculture (Economics and Marketing), who, after due publicity shall inspect the site and undertake necessary scrutiny and forward the case with his report to the Deputy Commissioner.
(4) The Deputy Commissioner shall forward the case with his comments to the Director of Agriculture (Economics and Marketing), who with his own remarks shall transmit the case to the Government for orders."
13. There is no denial of the fact that the afore noted procedure was not followed insofar as the market committee did not forward the application to the Extra Assistant Director of Agriculture (Economics and Marketing), who was required to give the matter due publicity to receive input of all stakeholders. This is an important step in the process because it enables all stakeholders to support or object to the proposal. It cannot be lightly brushed aside as an insignificant procedural requirement that may not be adhered to. Further after due publicity and depending on the input received, the said officer was required to inspect the site and undertake necessary scrutiny. As a next step he was required to forward the case with his report to the Deputy Commissioner. The Deputy Commissioner was, thereafter, required to forward the case with his comments to the Director of Agriculture (Economics and Marketing), who with his own remarks could have transmitted the same to the Government for orders. On the basis of this material, the Government could have passed an order for establishment of a new market subject to the conditions specified in rule 6. It may further be noted that admittedly, the application to be moved by the market committee was required to contain full details of the site where the market was intended to be established. The application available on the record is deficient on that score too. The record clearly shows and it has not seriously been denied by the learned counsel for the respondents that these requirements and procedures were not followed.
14. The argument of the learned counsel for the respondent that there was substantial compliance of the rules insofar as the Director of Agriculture (Economic and Marketing) had forwarded the case to the District Coordination Officer, who had sent the matter to the Chief Minister for requisite orders, has not impressed me. It is settled law that where a thing is required to be done in a particular manner, it must be done in that manner or not at all. It is not up to State functionaries to A choose which rule to follow and which to ignore. Such unstructured discretion would breed arbitrariness in decision making processes which is contrary to the principles of good governance.
Reliance in this regard is placed on Tehsil Nazim TMA, Okara v. Abbas Ali and -2 others 2010 SCMR 1437) Raja Humayun Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307) Human Rights Cases Nos.4668 of 2006, 1111 of 2007 and 15283-C of 2010 (PLD 2010 SC 759) and M. Yousuf Adil Saleem & Co. Chartered Accountants through Partner and 5 others v. Muhammad Saleem and another (2012 CLC 415).
15. The record shows that when the petitioner's land was earlier chosen the rules were duly followed. Even in the earlier round of litigation an earlier notification had, been set aside by this Court vide order dated 17-6-2009 passed in W.P.No,823 of 2009. While setting aside the order dated 31-1-2009, the matter was referred to the Chief Minister Punjab. The afore noted order was upheld by the learned Division Bench of this Court. The said order was challenged by some of the parties before the Hon'ble Supreme Court of Pakistan. The appeal' was, however, withdrawn by the appellants.
16. In my view, the matter was referred to the Chief Minister by this Court to do what-was required to be done under the law and the rules. If he was of the opinion that there were valid reasons based on public interest to ,set up a new fruit and vegetable market, he could have directed initiation of the process by adhering to the law and the relevant rules. However, instead of doing so, and initiating the process afresh in accordance with the law and the rules, a fresh order was mechanically passed without taking into account the fact whether or not the requirements of law and the rules had been fulfilled in the process that culminated in the final act of seeking his approval. It is frankly conceded by the learned counsel for the respondents that the requirements of Rule 67 were not fulfilled but they have based their defence on substantial compliance which has earlier been repelled.
17. There is no denial of the fact that on the basis of notification issued in 2002, all legal and procedural steps had been taken, the property of the petitioner was converted into plots, a number of such plots have been allocated and consideration there-against has been received. Therefore, I am in no manner of doubt that valuable rights had B accrued in favour of the petitioner, which could not have been taken away without due process of law. It is evident from the record that the petitioner was neither heard nor granted an opportunity to present her point of view. Further, her rights to be treated in accordance with law as enshrined in the Constitution were violated. She was also condemned unheard which is contrary to the well-established rule of audi alteram partem.
18. There is another aspect of the matter. Admittedly entire process of taking the land of the petitioner which commenced in November, 2001 and culminated in order dated 15-2-2002, whereby the Secretary Agriculture passed an order to the effect that the Governor of Punjab had been pleased to accord sanction for establishment of fruit and vegetable market at Arifwala Road on the land of the petitioner, was duly acted upon. The petitioner surrendered her land out of which 64 plots were carved out. At least 30 plots have already been allotted to commission agents and a few have been put to auction and part payment of the amount due to the petitioner in the sum of Rs,1.6 million has already been made. Therefore, at this belated stage, sudden and abrupt' cancellation of order dated 15-2-2002 in the circumstances discussed above is also hit by the doctrine of promissory estoppel. The said doctrine entails that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future knowing or intending that the other party would act upon such promise, the C promise would be binding on the party making it and he would not be entitled to go back upon it. The estoppel is an equitable principle evolved by the Courts for doing justice and is a recognized principle in our jurisprudence. Reference in this regard may be made to Fecto Belarus Tractors Limited v. Pakistan through Ministry of Finance Economic Affairs and another (2001 PTD 1829) wherein the Hon'ble Supreme Court of Pakistan has held as under:--- "The true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise -is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. The doctrine of promissory estoppel need not be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the Courts for doing justice and there is no reason why it should be given only a limited application by way of defence. There is no reason in logic or principle why promissory estoppel should also not be available as a cause of action."
' In the case of Messrs M.Y. Electronics Industries (Pvt.) Ltd. Through Manager and others v.
Government of Pakistan through Secretary Finance, Islamabad and others (1998 PTD 2728), while discussing the doctrine of promissory estoppel the Hon'ble Supreme Court of Pakistan observed as follows:---:.
"The doctrine of promissory estoppel is founded on equity. It arises when a person acting on the representation by the Government or a person competent to represent on behalf of the Government, changes his position to his detriment, takes a decisive step, enters into a binding contract or incur a liability. In such case, the Government will not be allowed to withdraw from its promise or representation. However, a general promise without any time limitation cannot bind the Government for all times to come. The enforcement of doctrine of promissory estoppel against the Government or a Government functionary competent to represent on behalf of the Government is however, subject to the following limitations as held by this Court in the case of Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 SCMR 1652):-- "(i) The doctrine of promissory estoppel cannot be invoked against the Legislature or the laws framed by it because the Legislature cannot make a representation;
(ii) promissory estoppel cannot be invoked for directing the doing of the thing which was against the law when the representation was made or the promise held out;
(iii) no agency or authority can be held bound by a promise or representation not lawfully extended or given;
(iv) the doctrine of promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it;, and
(v) the party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise."
' In another case reported as Makhdoom Muhammad Mukhtar, Member Provincial Assembly Punjab v. Province of Punjab through Principal Secretary to Chief Minister, Punjab, Lahore (PLD 2007 Lahore 61), in somewhat similar circumstances, the relief was granted by this Court by applying the principle of promissory estoppel and it was held as under:--- "Several documents on the record such as order of Chief Minister, Punjab dated. 24-9-2005, letter of Government of Punjab dated 30-9-2005, order of Governor, Punjab dated 6-7-2006, inclusion of scheme in the Annual Development Programme, allotment of funds and initiation of its implementation all go to show that such a scheme was indeed approved and put in operation. On such premises the learned counsel for the petitioner contends that at such a late stage of the approval of the scheme it could neither be dropped nor substituted. The learned Additional Advocate General Punjab, however, contends that Chief Executive of the Province can approve and annul any scheme at any time, as there is no embargo on his exercise of such a power.
' On consideration of the matter I am persuaded to countenance the contention of the learned counsel for the petitioner inasmuch as that a scheme having been approved at such a high level i,e, Chief Minister and the Governor of the Province, included in the Annual Development Programme, budget allocation made and orders issued could not be cancelled, dropped or substituted. It had received due approval and necessary order had become effective. It is too late for the Authorities to cancel or substitute the same. It is neither permissible under the law nor consistent with the good governance rule. The convenience, public good and welfare of the people being the main objective of the democratic set-up, any such scheme aimed at the development of the area should be implemented and carried out. Any other proposal meant for the local development could undoubtedly be considered and approved in addition to but not in derogation or substitution of already approved scheme. There can possibly be no cavil, as is being adumbrated by the learned Additional Advocate-General Punjab, about the power of Chief Executive of the Province but it cannot be lost sight that approval having been given to a scheme, which was in the process of execution, its annulment/dropping was not permissible at such a late stage. Annual Development Programme, Government of Punjab 20062007 (P.371-item 1521) shows not only its approval but also budgetary allocation. Even any remote reference to the principle of locus poenitentiae embodied in S.21 of the General Clauses Act, 1857 would not permit the cancellation/substitution of such an approved scheme after the decisive steps had been taken by the highest functionaries of the Province.
' Another aspect of the matter is that the act of approving the scheme must have given rise to hopes and expectations not only to the petitioner but the local population about its implementation. Reference in this context may be made to "Judicial Review of Public Actions" by Justice (Retd.) Fazl Karim Volume-2 Page-1365, where the doctrine of "legitimate expectation" and "Promissory estoppel" is stated to have roots in "fairness". The relevant passage reads like this: "The justification for treating 'legitimate expectation' and 'promissory estoppel' together as grounds for judicial review is, one, that they both fall under the general head 'fairness and too, that 'legitimate expectation' is akin to an estoppel. As was explained by Simon' Brown in R v. Devon CC,' the various authorities show "that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or the other body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it". The relationship between them is more clearly brought out by what Bingham LI stated in R v. IRC ex p IMK "
"If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted on it. If in private law a body would be in breach of contract in so acting or estopped from so acting a public authority should generally be in no better position. The doctrine of legitimate expectation is rooted in fairness."
' The reasonableness, fairness and justness all demand the implementation and execution of the first scheme duly approved and put in operation.
' Since the petitioner does not seek now the annulment' of any other scheme and seeks implementation of the scheme already 'approved, the petition is accepted to the extent that the scheme which was approved by the Chief Minister Punjab on 24-9-2005/ 30-9-2005 and Governor of the Province on 6-7-2006 will remain operative and will be executed. It is however clarified that it does not in any way stop or impede the Government to launch any other development scheme in the area.
19. There is consensus amongst the learned counsel for the parties that there is no bar on the power of the Government to establish a new fruit and vegetable market provided the process of law as envisaged in the Punjab Agricultural Produce Markets Ordinance, 1978 and Punjab Agricultural Produce Market (Central) Rules, 1979 are duly followed. Therefore, in case the respondent Government considers it necessary and in public interest that a new fruit and vegetable market needs to be set up, it may initiate fresh proceedings in accordance with law and subject to the rights of the petitioner discussed above by following and strictly adhering to due process of law enumerated above.
20. For reasons recorded above, I find that the impugned order dated 18-7-2009 issued by respondent No,2 is not sustainable. It is accordingly declared to have been passed without lawful authority and of no legal effect.
21. This petition is allowed in the afore noted terms.