GUL MUHAMMAD KHAN, J.-The petitioners have assailed through this petition the orders passed by respondent No. 1, denying them their right to carry on the wholesale business of vegetable and fruit, in the shops of respondent No. 2; which they had obtained on lease operative till 31st December, 1983. They have also asked for a direction, to respondent No. 2, to issue the necessary licences, under the Punjab agriculture Produce Market Ordinance, 1978 (hereinafter called the Market Ordinance).
2. Briefly, the facts of this case are that the petitioners purchased in an open auction the leaseholds of certain shops in the Vegetable Market of Municipal Committee, Kamalia (respondent No. 2) for a period of 5 years up til 31st December, 19x3. In 1980, respondent No. 1 also established a parallel market but it could not work profitably de-cause of the competition offered by the market of respondent No. 2. A dispute, therefore, arose between the respondents '1 and 2 which adversely affected the rights of the petitioners also.
3. Consequently, Writ Petitions Nos. 11 of 1979 and 1832 of 1981 were filed in this Court. There, the learned counsel for respondent No. 2 made a statement the Vegetable market was being run under the supervision of the Market Committee and that the shops were being let out to various private persons. He further conceded that any one who wishes to sell vegetables within the area of the Market Committee, must obtain a licence from the said Committee as provided by section 4(3) of the Punjab Agriculture Produce Market Ordinance, 1978 and violation thereof would attract prosecution under the penal provisions of the said Ordinance. In this view of the matter, the learned Judge observed that the Municipal Committee had no right to set up a parallel market or authorise any of its lessees to sell vegetables or any other agriculture produce in violation of the provisions of the Market Ordinance.
4. It appears from para. 4 of the petition that the parties also litigated in the Civil Court. The learned Additional District Judge held that the Municipal Committee, Kamalia had no jurisdiction to run a parallel market in the notified area of the Market Committee. The Municipal Committee was also restrained from dispossessing the lessees till the expiry of the contract on 31st December, 1983.
5. In view of the above position, the petitioners, applied to the respondent No. I for issuance of licences but to no avail. The petitioners allegedly paid the market fee also to the respondent No. 1 for which receipts were given in the beginning. Later, the receipts were refused though the fee was being regularly recovered. It is argued that as fees could be received only from licence-holders, respondent No. 1 impliedly took the petitioners as licensees and so the refusal to issue formal licences is without lawful authority.
6. After hearing the learned counsel for the parties, some conflict was noticed between the provisions of the Market Ordinance and relevant pro--visions of the Punjab Local Government Ordinance, 1979 (hereinafter called the Ordinance). The learned counsel for the parties were apprised of the situation and asked to look into that aspect of the case. As it appeared to be a very much involved situation, indicating far-reaching consequences, the case has been referred to a Division Bench instead.
7. The legal position before the enforcement of the Ordinance was that section 39 of the Market Ordinance had repealed sections 156 to 163 of the Punjab Local Government Act, 1975 (Act 34 of 1975). These sections were placed in Chapter XVIII of the Act, headed as "Market Committees".
Section 156 provided for establishment of farm markets by the Municipal Committees and Halqa Councils, who were also responsible for the construc--tion and maintenance of roads, shops, platforms, provision of water, lighting, conservancy and other facilities in the farm markets. Section 157 dealt with the notification of . The market area. Section 158 was for the constitution of Market Committee for a Farm Market and the Market Area attached to it. Previously, constituted market committees were also adopted. Section 159 provided for membership of a market committee.
Section 160 prohibited carrying on business in farm produce without a licence. Section 161 con-- cerned levy of fees while section 162 and section 163 laid down the creation and utilization of Market Fund.
8. It is to be noted that earlier the Punjab Local Government Ordinance, 1975 (Ordinance VI of 1975) had repealed the Punjab Agriculture Produce Market Act, 1939. The Ordinance VI was repealed by the Act XXXIV of 1975. So there was no separate law for the market committees. Apart from sections 156 to 163, sections 103 of Act XXXIV of 1975 provided for making Bye-laws for articles of food and drink. Section 104 prohibited sale of milk without licence, while section 105 authorised a municipal committee to establish public markets. Sections 106 to 110 dealt with animal husbandry and sections 66 to 71 with articles of food and drink and animals and cattle. Thus all the sections 66 to 71, 103 to 110 and 156 to 163 of Act XXXIV of 1975 dealt with farm produce and articles of food and drink and animals and some of their products. The repeal of sections 156 to 163 by the Market Ordinance thus meant to deprive the Halqa Councils and Municipal Com--mittees to deal with farm produce except articles of food and drink, the animals, cattle, milk supply and private markets under sections 66 to 71 and 103 to 110. Consequently, on the promulgation of the Market Ordinance in 1978, the farm produce as defined there vested in the market committees, while the functions under sections 66 to 71 and 103 to 11,0 still remained with the urban councils.
9. On the promulgation of the Punjab Local Government Ordinance, 1979, which repealed Act 34 of 1975, the position remains almost the same. Sections 66 and 67 of the Act 34 of 1975 which dealt with private markets and slaughter houses under the heading "Articles of Food and Drink" have been ,provided for in sections 62 and 63 of the Ordinance. Similarly, sec--tions 68 to 71 which dealt with "Animals and Cattle" have been continued in sections 64 to 67, while sections 103 to 110 dealing with articles-of food and drink and animal husbandry have been replaced by sections 99 to 106 of the Ordinance, 1979. The definition of 'food' and `cattle' in the two enactments is the same.
10. 'Food' is de5ned in section 3(1) (xiii) of the Ordinance to include every eatable used for food and drink by human beings but does not include drugs and water. Section 62 lays down that no private market. For the sale of articles of food and drink shall be established or maintained within the local area of an urban council except under a licence granted by the urban local council and in conformity with conditions of such licence. An urban' council may also levy fees in respect of private markets in the prescribed manner. It may further by notice require of any owner of any private market to construct such works, provide such conveniences and make such arrangements for the maintenance of the market as specified in the notice within a given period. It may also declare any part of its local area as a prohibited zone for keeping or maintaining cattle under sections 64 and 65, though there are certain exceptions to this provision. One of it is about cattle brought to a cattle market demarcated by the urban council for purpose of sale and slaughter.
11. Section 99 of the Ordinance provides for making of Bye-laws by the urban council to prohibit inter alia the exposure for sale, import into local area for sale or hawking for sale articles of food or drink without licence and regulate the time and manner of transport. The bye-laws may also be made for grant and withdrawal of licences and levying of fees therefor and they may provide for seizure and disposal . Of any animals, poultry or fish intended for food which is deceased or an article of food or drink which is noxious. Section 100 prohibits keeping of milk cattle for the sale of milk or ghee or any other milk or dairy product. An urban council may also under section 101 establish and maintain public markets or may provide places for use as public markets for sale of articles of food and drink and animals and secure proper Management and sanitation of such markets. Bye-laws may also be made in respect of public markets providing for fees for use of or right to expose goods, fees, on vehicles and animals bringing goods therein for sale, for use of shops, stalls, pens or stumps and on sale of animals. With the previous approval of the Government an urban council may also establish, maintain and manage animal houses for privately owned animals, cattle and poultry farms under section 103. It may also under section 106 hold cattle shows, fairs and charge fees from the public for attending such shows and fairs and maintain place and work forests and prohibit cultivation of crops.
12. The question arising for determination is whether then, is a conflict between the functions under the Market Ordinance and the Ordinance as they now are, and if so, to what extent and with what effect? We have already considered the contents of the Ordinance as they relate to the articles of food and drink and animal and animal products and the grant of licences and levy of fees. In order to know the difference, precisely, a comparison of the subjects and functions of the market committees may be of great help. Section 4 of the Market Ordinance provides for declaration of an area where no person shall set up, establish or use any place for the purchase or sale of the agricultural produce or purchase, sell, store or process such agricultural produce except under and in accordance with the terms and conditions of a licence granted under the provisions of the Market Ordinance. This is similar to section 62 of the Ordinance. According to section 4(3) no local authority, notwithstanding anything contained in any other law, entitling such local authority to establish a market and no person for himself or on behalf of another person unless exempted by rules, shall set up or establish a market. Another restriction as contained in section 4(4) is that no person, within the market, shall store, purchase, sell or in any manner deal in any commodity which is not declared as agricultural produce.
13. Section 5 empowers the market committees to issue and renew a licence to dealers. Section 9 mentions duties of the Market Committees. A Market Committee has to enforce the provisions of the Market Ordinance and the rules and bye,-laws made thereunder in the notified market area. It shall, when so required by the Government, establish a market therein providing such facilities as the Government may direct. Sections 7 and 8 deal with establishment and constitution of Market Committees. The duties of a Market Committee are to exercise control over the purchase and sale of such agricultural produce and such area as may be specified in the notification issued under section 3(1) and 4 so that no person does so, except under a licence issued by it. The other duties as given in section 9 are to enforce the provisions of the Ordinance, rules and bye-laws and when required by the Government to establish a market with all the required facilities. A Market Committee is also required to issue licences to various persons connected with the above trade.
Under section 19 a market committee can also levy fees under the rules while section 21 details the purpose for which the funds of the market committee can be expended. The main function of the market committee thus is to exercise control over the sale, purchase end processing of agricultural produce in the notified area, issue licences to all concerned, levy fees and spend the funds on the objects given in section 21.
14. To sum up, the salient functions of the two statutory bodies may be', placed in juxta-position to have a clearer view: - Functions of a marketFunctions of an urban council established under theestablished under the 1979 1978 Ordinance. Ordinance.
S. 4 No person shall set up, establish S. 62 No. Private market for the or use any place for sale andsale of articles of food or purchase of agricultural producedrink or animals shall be in the notified area, without aestablished or maintained licence from the market Com-within the local area of an mittee.Urban council except under a licence granted by the urban council.
S. 4(3) No. Local authority notwith- S. 101. An urban local council may standing any law entitling it toestablish and maintain public do so shall establish a marketmarket or may provide places unless exempted by the marketfor use us public markets for committee.Sale of articles of food and drink and of animals.
S. 4(3) No produce other than S. 99(b). An urban council may, by agricultural produce shall bebye-laws prohibit the import sold, stored or purchased in theinto its local area for sale or market.Hawking for sale of any speci-- fied articles of food or drink by person not so licensed.
S. 5 Market Committee to issue and S. 99(c).An urban council may bye- S. 6 renew licences on payment oflaws regulate the grant and fees and may suspend andwithdrawal of licence under cancel them.This section and levying the fees therefor.
S. 9. Market Committee shall enforce Ss. 62-67, 99-106, & 101. Enforce the provisions of the Ordinance,provisions about articles of rules and bye-laws and shallfood and drink and animals. establish a market if requiredAn urban council , may by the Government. Establish and maintain public markets.
S. 19, Market Committee may levy S. 99(c)Urban council may levy fees.Fees.
The definition or "agricultural produce" under the Market Ordinance and "articles of food & drink", as well as animals under the Ordinance would show that most of the. Items are common. It is, therefore, clear from the above that the two enactments have conflicting parallel provisions which cannot be administered by the two bodies together. In the existing state of law, therefore, they shall have to have exclusive areas of operation with regard to the common items.
15. In this view of the matter, the learned Assistant Advocate-General who represented both the Municipal Committee as well as the Provincial Government, sought instructions from both the clients. He has been asked to take a position that the Market Committee cannot carry on any of its functions within the limits of an urban council without showing that particular function has not been entrusted to that urban council. He also sought support from section 4 of the Punjab Local Government Ordinance which lays down that: "The provisions of this Ordinance shall take effect notwithstanding anything inconsistent therewith as contained in any other law."
The Ordinance is an enactment of a later date. It contains a specific superseding clause. No other law of an earlier date, therefore, can override its provisions.
16. In the case in hand the petitioners are lessees of the shops built by the Municipal Committee.
They are carrying on, therein, the business of sale and purchase of articles of food and drink. The Supreme Court has recently considered the connotation of the market in Hirjina Salt Chemical(Pak.) Ltd. v. Union Council, Gharo and others 1982SCMR53,to hold that it was covered by the ordinary dictionary meaning seeking to include any placeor area where goods of one more kinds an sold repeatedly over a short or long period of time. Thus a shop, rented for the sale of vegetables andfruit is a market and shall be exclusively controlled by an urban council with regard to articles of food and drink, if it is situate in an urban area. The Market Committee, therefore cannot exercise any control over the petitioners who carry on their business within the limits of a municipal committee.
The impugned action of the Market Committee is, therefore, declare to be without lawful authority and of no legal effect. As the question involved was not free from complexity and difficulty, there will be no order as to costs.