' ZAFAR AHMED RAJPUT, J:- Through instant Constitutional Petition, the petitioners have assailed the notices (i) bearing No.MC/KJJ/55 of 2013, dated 07.10.2013 issued by the respondent No.2, whereby the petitioners were directed to make payment of Market fee according to revised schedule at the rate of 0.50 paisa per Kgs. From 07.02.2011 onwards and (ii) notice bearing No. MC/KTJ/05 of 2014, dated 18.02.2014 issued by the respondent No.2, whereby the petitioners were directed to pay Rs.1,20,77,122/- as estimated outstanding revised Market fee w.e.f.
07.02.2011, in terms of the provisions of the Agricultural Produce Markets Act, 1939 and Rules, 1940.
2. Briefly stated, facts of the case are that the petitioners are private limited company and engaged in the business of, inter alia. Sale and production of sugar and owns "Ranipur Sugar Mills", situated at Ranipur, District Khairpur, while Market Committee Kotdiji. The respondent No. 2, established under section 7 of the Agriculture Produce Markets Act, 1939 ("the Act of 1939") issues license under subsection (1) of Section 6 of the Act of 1939 to work as a "dealer" for the purchase and sale of agricultural produce including sugarcane and its bye products. Under Section 19 of the Act of 1939 the respondent No. 2 is authorized to levy a fee on an agricultural produce brought or sold in the notified market area at such rate prescribed under Rule 29 (11) of the Agriculture Produce Rules, 1940, ("the Rules 1940") made under the Act of 1939. Therefore, the respondent No. 2 issued afore-mentioned notices to the petitioners on the grounds that vide Notification No.SO (PMP)/5(377)/2006, Karachi, dated 07.2.2011, the Government of Sindh had revised the schedule of Market fee of agricultural produce including sugarcane and its bye products as 0.50 paisa per Kg.
And the petitioners had paid market fee at the old rates for the period 2011-2012, hence they are liable to pay an amount of Rs.1,20,77,122/- as estimated outstanding revised Market fee w.e.f.
07.02.2011. The petitioners have impugned the afore-mentioned notices on the ground that the same are illegal, unconstitutional, invalid and inapplicable and therefore, no demand can be raised there under.
3: We have heard Mr. Muhammad Siddiq Mirza, learned counsel for the petitioner and Mr. Ansari Abdul Lateef, learned counsel for the respondent No. 2.
4. Mr. Muhammad Siddiq Mirza, learned counsel for the petitioners, has contended that the Act of 1939 stands repealed by the Sindh Wholesale Agricultural Produce Markets (Development and Regulation) Act. 2010 ("the Act of 2010") as Section 21 of the Act of 2010 provides that the Act of 1939 shall stand repealed on the expiry of three years of the commencement of the Act of 2010, while the respondent No. 2 instead of exercising powers under the newly legislated law, has been levying fee under old law without establishing and notifying the "Market Area" for sale and purchase of sugar products or raw material; therefore, the impugned notices and levy purportedly issued under the Act of 1939 does not exist. It has further been argued by Mr. Mirza that the Act of 1939 is not applicable as the petitioners are neither dealers nor even growers nor a "Market", has been notified in accordance with the provisions of Section 2 of the Act of 1939 or under the Act of 2010. It has also been argued by the learned counsel that in violation of Section 19-A of the Sindh General Clauses Act, 1956, the respondent No.1 has increased the Market fee vide notification dated 07.02.2011, whereas the said notification has not been gazetted in the official Gazette and under section 28-A of the Act of 1939, the publication of a notification .In the official Gazette is a statutory requirement, in default whereof the said notifications are not enforceable and are invalid. Lastly, the learned counsel has contended that the petitioners are not liable to pay Market fee as the respondent No. 2 has not rendered any service in return thereof. In support of his contentions, Mr. Mirza has relied upon the case of Noor Sugar Mills Ltd. v. Market Committee and others (PLD 1989 SC 449) Fauji Suar Mills v. Market Committee Tando Muhammad Khan (1988 SCMR 155).
5. On the other hand. Mr. Ansari Abdul Lateef, learned counsel for the respondent No. 2, has contended that the Act of 2010 was passed by the Provincial Assembly of Sindh on 05.07.2010, but the rules under the said Act have yet not been framed, therefore, the said Act has not been promulgated in the Province and the provisions of Act of 1939 are still applicable. Mr. Ansari has further contended that the petitioners are the dealers and a "Market", has been notified in accordance with the provisions of Act of 1939. He has also contended that the Notification No. SO(PMP)/5(377)/2006, dated 7.2.2011. Regarding amendment in the Act of 1939 and Rules, 1940 was sent to the Sindh Government Printing Press Karachi with the request to publish it in the official Gazette, which is evident from the copy of the said notification available with the parawise comments filed by respondent No.1 as Annexure-III. Mr. Ansari has asserted that from 2002 to 2012 the respondent No.2 carried out as many as seven projects of construction of roads and parking area of growers 'vehicles in the premises of petitioners' mills with the cost of Rs.1,02,63,939/-. The learned counsel has further asserted that the respondent No. 2 was charging 0.40 paisa and has increased only 0.10 paisa on sugarcane per 50 Kgs., after 26 years, to meet with the costs of maintaining infra-structure and facilitate the growers and dealers, and increase is quite justified. In support of his contentions, Mr Ansari has relied upon the cases of Matiari Sugar Mills v. Government of Sindh (PLD 1999 Karachi 424). Pakistan Flour Mills v. Government of Sindh and others (2003 SCMR 162). Bowany Sugar Mills, Ltd. V. Market Committee, Badin and another (PLD 1983 Karachi 1) and M/s. Mirpurkhas Sugar Mills Limited v. Government of Sindh through Chief Secretary (1993 SCMR 920).
6. We have given due consideration to the contentions of the learned, counsel for the parties and perused the material available on record.
7. In order to appreciate the first contentions of learned counsel for the petitioners with regard to the repealing of the Act of 1939 by virtue of Section 21 of the Act of 2010, it would be advantageous if the provision of Section 21 and other relevant provisions of the Act of 2010 are reproduced herein under: Section 21. Repeal.- The Agricultural Produce Act, 1939 shall stand repealed on expiry of three years of the commencement of this Act; provided that the Government shall continue to exercise all the powers under the Agricultural Product Market Act, 1939 to ensure that the statutory functions are performed by the notified markets until the same are transferred to market companies within the stipulated period as may be prescribed.
' Market Company has been defied under section 2(h) of the Act of 2010 as under: ' Section 2. (h) "market compay" means a company incorporated under section 6 of this Act.
' Section 6 of the Act of 2010 reads as under :
6. Incorporation of notified markets.-(1) Government shall with respect to each, notified market, not later than the date as may be prescribed for the dissolution of such notified market, take all steps and do all acts and things necessary to ensure that all the assets and all the liabilities of each notified market are transferred, in their entirety to a market company incorporated as a private limited company under the Company Ordinance, 1984, so that the assets and liabilities of each notified market shall stand transferred from respective market committee to a separate market company. The transfer of each such notified market to its market company shall take place in such manner as may be prescribed; provided that Government shall ensure that, with respect to each notified market, a complete valuation of the assets and liabilities of such wholesale market are undertaken by a chartered accountant or a firm of chartered accountants established and registered under the Chartered Accountants Ordinance, 1961 and such number of shares are issued by each market company so as to ensure that the issued; subscribed and paid up capital of market company as fully reflects the result of such complete valuation.
Though the Act of 1939 has been repealed by the Act of 2010 but the statutory functions have yet not been transferred to market companies by the markets notified under the Act of 1939; therefore, the A Government and the market committees are still operating and exercising all the powers under the Act of 1939. As such. The impugned notices and levy of Market fee issued under the Act of 1939 by the respondent No.2 A is neither illegal nor without authority.
8. The Market Committee Kotdiji has been established as Sindh Government functionary, vide Notification No. S.0.111/12 -13/85: dated 30 May 1985. The petitioner Sugar Mill is a "dealer" under clause (aa) of Section 2 and it consumes "Sugarcane" being "Agricultural Produce" under Clause
(a) of Section 2 of the Act 1939 read with "Schedule" as provided in the Rules 1940. The establishment, functioning and validity of Market Committee throughout Pakistan and its levy of Market fee were the subject matter of different lis before the Apex Court. In Pakistan Flour Mills v.
Government of Sindh and others (2003 SCMR 162), Messrs Mirpurkhas Sugar Mills Limited v.
Government of Sindh through Chief Secretary (1993 SCMR 920) Noor Sugar Mills and 9 others v.
Market Committee PLD 1989 SC 449) and by this Court in Bawany Sugar Mills Ltd. v. Market Committee, Badin and another (PLD 1983 Karachi 1) the levy of Market fee and its recovery from sugar mills has fully been discussed and consistently been held that the "Sugar Mills" since consuming "Sugarcane" are "Dealers" as such are duty bound to obtain a license from Market Committee under subsection (1) of section 6 of the Act of 1939 and are liable to pay market fee under Section 19 of the Act of 1939 with Rule 29 (11) of the Rules, 1940. Therefore, we are of the view that the petitioners are under obligation to pay Market fee. Respondent No. 2 has filed a statement along with objections/counter affidavit to the petition showing that the petitioners have paid Market fee from 1998-99 to 2011-12, and, thereafter, they have failed to clear their liabilities.
9. It appears from the perusal of record that from 2002 to 2012 the respondent No. 2 has spent Rs.1,02,63,939/- on construction of roads and parking area of growers' vehicles in the premises of petitioners' mill. The Act of 1939 is intended to provide for a uniform law relating to the better regulation of the purchase and sale of agricultural produce; to establish Markets for agricultural produce throughout the province and to establish Marker Committee to provide amenities/facilities to the growers, dealers as well as pubic which could not be done unless fees schedule is revised from time to time. It reveals from the record that the schedule for recovery of Market fee was lastly revised by the provincial Government in the year 1980. The reason for existing revision notified vide No.SO(PMP)/5(377)/2006, dated 7.2.2011 was that the earlier schedule did not meet the expenditure of the Market Committee and the revision is justified on the grounds that no increase in the Market fee was made after 1980, although expenses and rates increased manifold and the said revision in Market fee was approval by the Government of Sindh after publication in the. Leading National Newspapers. Therefore, we have not found any illegality in the impugned notices.
10. For the facts and reasons stated above, we find no merit in this petition, which is hereby dismissed, with no order as to costs.
' Above are the reasons of our short order dated 12.03.2015 by which we dismissed this petition.