' SHAHID JAMIL KHAN, J.--- This petition is against show cause notice, for deposit of license fee and renewal of license, issued under sections 4, 6 of the Punjab Agricultural Produce Markets Ordinance, 1978 ("Ordinance of 1978") read with Rule 36 of the Punjab Agricultural Produce Markets (General)
Rules, 1979 ("Rules of 1979").
2. The petitioner is an Association of Cold Storage owners of district Sahiwal. As per averments in petition; the members of petitioner provide storage facilities, inter alia, to agriculturists for agricultural and other produce, for which fee is charged from the customers. Assertively, the Cold Storages are neither located in the notified area nor are involved in sale and purchase of agricultural produce; however, since last few years they, are receiving notices to pay license fee with late fee charges and threatened fine.
3. Learned counsel for the petitioner, challenged the authority to issue impugned notices, submitting that Cold Storages are being run for storage of agricultural produce of others, therefore, their business is not caught by the provisions of Ordinance of 1978. To support the arguments, he has read its preamble, which envisages regulation of purchase and sale of agricultural produce and to establish markets for this purpose. Provisions of section 19 are also read and emphasis is laid on clause (b), which says "no fee shall be leviable on a person who is not a party to a transaction".
' By referring to different clauses; section 2()) of Ordinance of 1978 and Rule 6(A) of the Rules of 1979 are read to argue that word "Cold Storage" is included in this sub-rule, in derogation of parent statute as these words are not used anywhere in the Ordinance of 1978. It is argued that a rule cannot go beyond the scope of main statute, therefore, Rule 6 to the extent of using word "Cold Storage" may be declared ultra vires of the Ordinance of 1978. He has placed reliance on PLD 2014 SC 389 (Suo Motu case No,11 of 2011).
4. Learned A.A.-G., assisted by learned counsel for the respondents, has opposed this petition, submitting that members of petitioner are already licensee and were paying fees regularly.
However, on enhancement of fee, they have filed this petition with mala fide intent.
' On merits, learned counsel for the respondents has read section 4(3) of the Ordinance of 1978, to contend that a place where agricultural produce are stored, is covered under provisions of the Ordinance. He has also read the definition of dealer, as contained in section 2(b) of the Ordinance of 1978, to contend, if a place is allowed to be used for sale and purchase of agricultural produce, it falls within the ambit of the Ordinance of 1978 and Rules made thereunder.
5. Heard learned counsel for the parties, record perused.
6. Different Provisions of the Ordinance and Rules made thereunder are examined in light of the arguments. Preamble discloses that purpose of the Ordinance is 'better regulation of purchase and sale of agricultural produce' and to establish markets for proper administration of purchase and sale. Agricultural Produce is exhaustively defined in section 2(a) of the Ordinance of 1978. Markets are established in 'Notified Market Area', which as per section 2(k) means any area notified under section 4. For every Notified Market Area, a 'Market Committee' is established under section 7. Under section 5, the Market Committee is the Authority for issuance and renewal of licences to a dealer.
Dealer is defined in section 2(b) of the Ordinance of,1978, which being relevant to the proposition under discussion, is reproduced hereunder:---
(b) "dealer" means any person who within the notified market area sets up, establishes, uses or allows to be used any place for the purchase or sale of the agricultural produce; ' Under section 6; a person who wishes to work as dealer in a Notified Market Area may apply for issuance of licence or for its renewal in prescribed form. Disqualifications to become a dealer are mentioned in subsection (2). Under subsection (3); a person, who is already carrying on a business as dealer in a Notified Market Area, has to apply for licence within 30 days. In case of default, the Market Committee may refuse to grant him licence unless he deposits the fee as specified in the.
Subsection.
' Examination of the provisions, discussed ibid, shows that for regulation of purchase and sale of agricultural produce, an area is notified and Market committee is constituted, as an Authority to give licence to dealer in the area and regulate the purchase and sale. It is clear from perusal of the provisions that no person can carry on the business as dealer in a Notified Market Area unless he is granted licence by the Market Committee. Conversely; a person who is not doing any business as a dealer cannot be compelled for getting licence or for its renewal. This legal position is fortified by clause (b) of proviso to section 19, which deals with levy of fee. Section 19 is reproduced for facility:- -- "19. Levy of fees.
' A Market Committee may, subject to such rules as may be made by Government in this behalf, levy fees, not exceeding the maximum rates prescribed, on the agricultural produce bought or sold by or through a dealer in the notified market area: ' Provided that...
(a) no fee shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is not actually made;
(b) no fee shall be leviable on a person who is not a party to a transaction;
(c) no fee shall be leviable in respect of any subsequent transaction of sale or purchase within the same notified ,area of an agricultural produce extracted after being subjected to manufacturing or processing. [emphasis supplied] The emphasized part of above quoted provisions supports the arguments by learned counsel for the petitioner that for the purpose of licence and levy of fee, it is to be established that sale and purchase of agricultural produce is being carried on at a place within the Notified Market Area.
Mere existence of a business of 'Cold Storage' does not make it necessary for the owner to obtain licence as dealer.
7. Section 9 of the Ordinance of 1978 deals with the Duties of Market Committee and it is one of the duties that facility of storage for agricultural produce shall be provided. Section 21 specifies the purposes for which funds can be expended by the Market Committee. Construction and maintenance of Cold Storages, Warehouses and Godowns for benefit of growers is also a purpose for expending funds.
8. The arguments by learned counsel for the respondents that word "Store" used in subsection (3) of section 4 of the Ordinance, 1978, means "Cold Storage", is not convincing. The word "Store" is used with reference to process and sell agricultural produce. The arguments of learned counsel for the respondents to the extent that members of petitioner have been paying license fee, therefore, are estopped by their conduct is also not convincing either because thereis no estoppel against law.
' Nevertheless, the arguments of learned counsel for the petitioner are also not convincing that inclusion of word "Cold Storage" in Rule 6(A) of the Rules of 1979, is ultra-vires to the Ordinance. A Cold Storage, as place within Notified Market Area, if used for processing, sale or purchase of agricultural produce, either by the owner or by its customer, shall fall within the mischief of the definition of dealer under Section 2(b) of the Ordinance of 1978.
9. The fact whether the Cold Storages, owned by members of the petitioner are being used for sale and purchase of agricultural produce is to be determined by the Authorities under the Ordinance, after due process and in accordance with law.
' With these observation, in light of interpretation made supra, this matter is referred to Secretary of respondent No,1, who shall provide an opportunity of being heard to the petitioner and decide the matter through a speaking order. Each case shall be considered independently, to determine whether the Cold Storage is being used for sale and purchase of agricultural produce or not.
' Till decision, as directed, no coercive measure shall be taken against the petitioner under the impugned notice.
Disposed of