' FAKHRUDDIN H. SHAIKH, J.-This petition has been filed by the petitioner to challenge the validity and legality of two notifications issued by the Government of West Pakistan on 17-3-1967 and 2-12-1969 in pursuance of section 4 and section 25-A respectively of the West Pakistan Agricultural Produce Markets Act, 1939. By way of consequential relief it has also been prayed that the levy of market fee on sugar and sugarcane by the market committees established under the above notifications may also be declared illegal or in the alternative it may be declared that market fee cannot be levied both on sugarcane as well as on sugar. It has further been alleged that by virtue of Sugar Factories Control Act, 1950 the Agricultural Produce Markets Act, 1939 has been repealed protanto.
' The facts giving rise to this Writ Petition are as under :-
2. The petitioners are public limited company manufacturing sugar at Talhar, taluka Badin, District Hyderabad (Now District Badin). On 15-8-1966 the Government of West Pakistan issued a notification under section 3 of the West Pakistan Agricultural Produce Markets Act, 1939 (hereafter referred to as the Act) declaring their intention of exercising control over the sale and purchase of certain items or agricultural produce in respect of areas of Hyderabad District to be declared as market areas shown in the schedule annexed to this Notification. It may be stated that on the date of this notification Badin District was part of Hyderabad District. In the first column of the above Schedule, Badin has been shown as the Market Committee. In the second column the entire Badin taluka has been specified as the extent of area of the committee while in the third column thereof sugarcane and its products i,e, `Shakar' and refined sugar have, inter alia, been specified as the items of Agricultural Produce in respect of which control was sought to be acquired. This notification under section 3 of the Act was published in the Gazette of West Pakistan dated 16th September, 1966. In para. 2 of this notification it has been stated that persons likely to be affected by the notification could file objections within 60 days of the date of the publication.
3. On 24-2-1967 another notification purporting to be under sections 7, 8 and 10 of the Act was issued by the West Pakistan Government whereby market committees were established in Hyderabad District. Out of the several market committees so established, one was Badin Market Committee within whose jurisdiction the petitioner's Sugar Mills is situated. The names of the members of this Committee have been specified in para. 4 of this notification.
4. On 18-2-1967 another notification under section 4 of the Act was issued but published in the Gazette dated 17-3-1967 i,e, after about 3 weeks of the second notification referred to above. By this notification, which purports to be in continuation of the first notification dated 15-8-1966 under section 3 of the Act, the Governor of West Pakistan was pleased to exercise control over the sale and purchase of the items of agricultural produce in the respective market areas of the Hyderabad District as shown in the Schedule given below it. In the schedule that follows there are 3 columns.
The first column is for the name of the market committee, the second column specifies the extent of area of the market committee and in the third column, items of the agricultural produce which are to be covered by the notification, have been specified. Under the first column Badin has been shown as the market committee. Under the second column entire Badin taluka has been specified as the area of the market committee and under the third column sugar and sugarcane have, inter alia, been specified as the items sought to be covered by the notification.
5. The second notification under sections 7, 8 and 10 of the Act which affected other areas of Hyderabad District besides Badin, was challenged in the West Pakistan High Court, Karachi Bench in two petitions namely petitions Nos. 361 and 446 of 1967 which were decided on 23-2-1968. The judgment has been reported in PLD 1968 Kar.
552. It was held in this case that as the constitution of the market committees under sections 7, 8 and 10 had proceeded the notification under section 4 of the Act, hence the constitution of the committees was invalid. As a result of the above judgment, the Government of West Pakistan issued a notification on 16.1-1969 whereby they rescinded the second notification dated 24-2-1967 whereby, inter alia, Badin Market Committee was constituted. On the same date another notification was issued under section 25-A of the Act whereby Extra Assistant Director of Agriculture, Hyderabad Region was appointed as Administrator to perform the functions of market committee in respect of Badin Market areas.
6. The petitioners have also relied on two letters of the Agriculture Department. By the first letter which is dated 10-2-1969 the Agriculture Department of the West Pakistan Government informed the Commissioner of the Division that sugarcane should be excluded from the schedule of controlled items of the Act. Second letter is dated 5-11-1969 whereby the Agriculture Department informed all the Commissioners that the earlier decision to exclude sugarcane &Om the schedule of the controlled items has been withdrawn.
7. In August, 1970 through a general notice served on the petitioners, they were required to obtain licence under section 4(2) of the Act for dealing in controlled items including sugar and sugarcane.
On 27-9-1970 the petitioners represented to respondent No, I that market fee was not leviable against it and as such the notice served on it may be vacated. On 28-10-1972 Governor of Sind confirmed the Bye-Laws of Market Committee Badin under section 28 of the Act. Under Bye-law 26(1) the Market Committee prescribed 6 paisas per maund as its fee on the sale and purchase of all items of agricultural produce included in the schedule to the notifications referred to in para. 2 above.
8. On 20-12-1972 the Market Committee Badin called upon the petitioners to obtain licence under the Act and pay market fee failing which action will be taken against it. On 28-12-1972 the petitioners informed respondent No, 1 that action against it be kept in abeyance till decision of the High Court in another petition on similar points (filed by Fouji Sugar Mill Tando Muhammad Khan, District Hyderabad). On 19-3-1975 respondent No, 1 replied that the Market Committee would stay proceedings if the petitioners agreed to abide by the decision in the case of Fouji Sugar Mill and furnished surety through a scheduled bank for paying due tax with effect from 28-10-1972 when the bye-laws were approved by the Governor. Aggrieved by this demand by the respondent, this petition was filed in this Court.
9. The petitioners have challenged the validity and legality of the notification dated 17-3-1967 under section 4 of the Act and the Constitution of Market Committee, Badin on the following grounds namely :-
(a) That the notification did not declare specifically any area to be notified as Market Committee under this section and that in the absence of such notified area neither any market committee could be established nor any Administrator could be appointed to exercise functions of the committee.
(b) That in the absence of clear precise legal and valid notification under section 4 of the Act market committees could not act in a vacuum.
(c) That the notification under section 4 of the Act was otherwise bad for non-compliance of mandatory provisions of rule 3 of the Agricultural Produce Market Rules, 1940 (hereafter referred to as the Rules), which required publication of the notification in Urdu and affixation of a copy thereof in Urdu in the Office of every District Council, Municipal Committee, Notified Area Committee etc., if any, within whose jurisdiction the notified market committee area is situated.
10. The legality of the notification under section 25-A of the Act dated 16--1969 (published in the Gazette dated 21-2-1969) has been challenged on the following grounds :-
(a) That such notification could have been issued only if validly constituted market committee already existed at Badin.
(b) That section 25-A provides for emergency powers to be exercised only in cases where the purposes of the Act cannot be carried out in accordance with the provisions of the Act and that resort to this section to circumvent the absence of provisions for setting up initial market committee amounted to fraud on statute and was mala fide in law.
11. The right of the market committee to levy market fee on sugar and sugarcane has been challenged on the following grounds :-
(a) That sugarcane having been deleted from the Schedule of the controlled items could not have been reincluded in the Schedule.
(b) That market committee, Badin does not render any service to the petitioners' Mill as such it is not entitled to levy any fee in terms of the Act.
(c) That the levy in question is not a fee but is a tax which could not have been imposed except by an appropriate Legislature.
(d) That fee could be levied only if some special services have been rendered as there is always an element of quid pro quo therein which was absent in the instant case.
(e) That the Sugar Factories Control Act, 1950 read with the Sugar Factories Control Rules, 1950 should be deemed to have repealed protanto the Act of 1939 and the Rules of 1940.
12. During his arguments Mr. Ali Ahmed Fazeel, learned counsel for the appellant attacked the validity of notification under section 4 of the Act only on two grounds namely that the notification did not exactly conform to the provisions of rule 4 and that it was not published in the manner as prescribed by rule 3 of the Rules inasmuch as the Urdu copies of the notification were not affixed in the office of the District Council, Municipal Committee etc. Within whose jurisdiction the market area Badin was situated.
13. So far as the first objection is concerned it may be stated that section 4 is to be read alongwith section 3 of the Act in order to appreciate properly the validity of notification under section 4 of the Act. It would be advantageous to reproduce section 3 and section 4(1) of the Act which are as under :- "Section 3. Notification of intention of exercising control over purchase and sale of agricultural produce in specified area.-The Government may, by notification, declare their intention of exercising control over the purchase and sale of such agricultural produce and in such area as may be specified in the notification. Such notifications shall state that any objections or suggestions which may be received by Government, within a period to be specified in the notification, will be considered : Provided that such period to be specified in the notification, will be considered : Provided that such period shall not be less than one month."
"Section 4. Declaration of notified area.-(1) After the expiry of the period specified in the notification under section 3 and after considering such objections and suggestions as may be received before the expiry of the specified period, the Government may, by notification and in any other manner that may be prescribed, declare the area notified under section 3 or any portion thereof to be a notified market area for the purposes of this Act in respect of the agricultural produce notified under section 3 or any part thereof.
It would thus be clear that any notification which is issued under section 4 of the Act should be read in the context of the earlier notification which has been issued by the government under section 3 declaring the intention of the government to establish market areas in respect of certain commodities.
' The notification under section 3 of the Act is at page 21 of the petition's record while the other notification under section 4 appears at page 27. From the perusal of both these notifications, a full description of which has been given in paras. 2 and 4, it will be evident that all the requirements of law as laid down in these two sections have been complied with. The object underlying these two sections is that the persons concerned should be given an idea about the areas which are to be included in a market committee and the items of the agricultural produce the control of which is sought to be acquired under the Act. Anyone who reads these two notifications shall have the least doubt about the objects for which the notifications have been issued. In the notification under section 4 there is a specific reference to the earlier notification under section 3. It will be advantageus to reproduce this notification which runs as under:- "No, 3(5) S.
0. (F & G)/65-Market.-In exercise of the powers conferred by section 4 of the Province of West Pakistan Agricultural Produce Market Act, 1939 and with reference to Agriculture Department Notification of even number dated the 15th August, 1966, the Governor of West Pakistan is pleased to exercise control over the sale and purchase of the items of agricultural produce in the respective Market Areas of Hyderabad District as shown in the Schedule given below :- SCHEDULE Name of Extent of Name of agricultural produce items. Market Area.
Committee Badin Entire Sugarcane & its products i,e, Gur Shakar, Desi Badin Sugar and refined Sugar.
Taluka.
It would thus be clear that in order to determine the vires or validity of this notification it shall have to be read alongwith the notification under section 3 dated 15-8-1966 in which there is specific mention of the intention of the government to declare certain areas as market areas. The relevant part of the notification under section is as follows :- "No, 3(5)S.0.).-(F & G)/65-Market.-In exercise of the powers conferred by section 3 of the West Pakistan Agricultural Produce Markets Act, 1939, the Governor of West Pakistan is pleased to declare his intention of exercising control over the sale and purchase of certain agricultural produce items in the respective areas of Hyderabad District to be declared as Market Areas, as shown in the schedule given below :- Below this notification full description of the market committee, Badin, the extent of its area and the items of agricultural produce have been described. In view of the above, it cannot be said that the notification under section 4 is defective for the reason that it does not declare particular areas to be the notified market area.
14. The second ground urged by the learned counsel for the petitioner in this behalf is, that the notification under section 4 impugned in this petition was not published in the manner as required by rule 3 of the Rules. This objection has been stated in detail in para. 9(c) above. Rule 3 of the Rules which describes the manner of publishing the notification, runs as under :- "3. Publication of notification under section 4.-(1) Copies of a notification issued under section 4 of the Act shall be published in one or more of the under-mentioned modes, under the orders and at the discretion of the Deputy Commissioner :-
(a) In Urdu, and if necessary, in such other language and in such newspapers as in the opinion of the Deputy Commissioner will give publicity among persons likely to be affected by or interested in the sale and purchase of agricultural produce notified market area ;
(b) By affixing a copy of the notification in Urdu, and if necessary, in such other language as may be considered necessary by the Deputy Commissioner, in the office of every District Council, Municipal Committee, Notified Area Committee and Panchayat, if any, within whose jurisdiction the notified market area of any part thereof is situated, and at some conspicuous place in the existing mandi, if any ;
(c) by affixing a copy of the notification in Urdu, and if necessary, in such other language as may be considered necessary by the Deputy Commissioner, in the principal common meeting place, if any, of every village within the notified market area; and
(d) by beat of drum in the village within the notified market area."
It would thus appear that there are four modes in which a notification can be published. Out of these 4 modes the objection noted in para. 9(c) above relates only to the mode (c) of the rule 3.
There is no averment whatsoever in the entire petition that the modes (a), (b) and (t) were no adopted by the authorities responsible for publishing it. In the absence of specific plea regarding non-compliance of the modes (a), (b) and (d) it must be presumed that the notification was published according to one or more of the modes although a particular mode which was only an alternative one, might not have been adopted. According to rule 3 adoption of all the 4 modes of publication is not mandatory. The opening words of rule 3 indicate that a notification is to be issued in one or more of the several modes prescribed therein i,e, one of the modes (a), (b), (c) or (d). It is not the case of the petitioner in his petition that none of these 4 modes were adopted by the authorities concerned. The petitioner's objection is that only mode (c) was not adopted. In the absence of a specific plea, it cannot be presumed that the other 3 alternative modes were also not adopted. For the above reasons we are of the view that the vires of the notification under section 4 cannot be challenged on any of the grounds convessed by the learned counsel for the petitioner. It may be stated, by the way, that this very notification was challenged in another writ Petition being C. P. No, 133 of 1970 in the case of Fouji Sugar Mills referred to above. Noorul Arifin, J. Who had delivered the judgment had held that the notification under section 4 in question, which covered Fouji Sugar Mill of Tando Mohammad Khan was quite in order and not ultra vires.
15. The notification under section 25-A of the Act dated 16-1-1969 of the Government has been challenged mainly on the ground that it could not have been issued in the absence of a pre- existing and validly established' Market Committee and that an administrator cannot be appointed in vacuum. Section 25-A runs as under : "If at any time Government are satisfied that a situation has arisen in which the purposes of this Act cannot be carried out in accordance with the provisions thereof, Government may by notification :-
(a) declare that the functions of the market committee shall, to such extent as may be specified in the notification, be exercised by Government or such person or persons as they may direct ;
(b) assume to themselves all or any of the powers vested in or exercisable by any market committee ; and such notification may contain such incidental and consequential provisions as may appear to Government to be necessary or desirable for giving effect to the objects of the notification.
Learned counsel for the petitioner has urged that the word "the" appearing before the words "market committee" in clause (a) of section 25-A connotes that a market committee must already be existing before the powers under section 25-A of the Act are exercised by the Government. In support of his plea learned counsel for the petitioner has tried to draw an anology between section 280 of the City of Karachi Municipal Act, 1933 and section 25-A of the Act. Section 280 of the Act of 1933 provides for dissolution of municipal corporation under certain conditions. It has been argued that if any of the conditions mentioned in section 280 of the Act of 1933 are not complied with the notification of dissolution issued thereunder shall be deemed to be invalid. In this behalf he has referred to the case of -Tamil Ahmed v. The Chief Commissioner, Karachi and Municipal Commissioner, Karachi (1). This was a case relating to the exercise of power by the Government under section 280 of the Act of 1933 under which a notification was issued dissolving the Karachi Municipal Corporation. The notification was attacked on the ground that it did not comply with all the requirements of section 280. Wahiduddin, J., who delivered the judgment made following observations about the reasons for holding the notification in respect of the K. M. C. As invalid : "Section 280 of the City of Karachi Municipal Act lays down three conditions for passing an order under it : (1) that an opportunity should be given to the Corporation to show cause why the order of dissolution should not be made, (2) thereafter the Provincial Government could direct by an order that the Corporation shall be dissolved from such date as may be specified in the order and that the general elections shall take place in accordance with the provisions of this Act so far as they may be applicable, and (3) such order shall be published in the Official Gazette together with reasons for making it In the present case the Provincial Government fulfilled the first condition but failed to give any direction for holding the general elections of the Corporation in accordance with the provisions of the said enactment. They also failed to give reasons in the said order for the dissolution of the Corporation. Mr. Raymond's contention throughout was that the last two conditions, namely, the holding of the general elections and the giving of the reasons are merely of a directory nature and their breach cannot invalidate the dissolution order passed by the Provincial Government. As has already been observed the dissolution and holding of the general elections
(1) PLD'1958 Kar. 56 are interconnected with each other. On the language of section 280 of Karachi Municipal Act, nobody can conceive the dissolution of the Corporation without holding the general elections and reconstituting it under the relevant enactment governing it. The contention of the learned counsel for the respondents in this behalf therefore fails."
' On page 74 of the same judgment the learned Judge proceeds further to observe as under : "In our opinion the Provincial Government in the absence of properly constituted Corporation cannot take action under section 280 of the City of Karachi Municipal Act. We have already held that before action is taken, an opportunity to explain charges must be given and certainly no charge-sheet can be framed against a defunct body. It seems to us that the Provincial Government at this stage cannot pass any valid order under section 280 of the Karachi Municipal Act and by an executive order cannot dissolve the Corporation with retrospective effect. In these circumstances there is no other alternative but to order that the Karachi Municipal Corporation should be reconstituted under the direction of this Court."
16. In our view there is no anology between section 280 of the Karachi Municipal Act of 1933 and section 25-A of the Act. Section 280 speaks of dissolution of a corporation which is already existing whereas section 25-A of the Act gives emergency powers to the Government to appoint certain persons to porform' the functions of a market committee whenever it seems to the Government that the purposes of the Act cannot be carried out in accordance with the provisions of the Act. In fact section 280 of the Act of 1933 is analogous to section 25 of the Act and not section 25-A of the Act. Section 25 of the Act pertains to supersession of a market committee. In the case of notification of supersession of a market committee by the Government, it must be pre-supposed that a market committee already existed prior to the notification. So far as section 25-A is concerned, no such pre-condition can be read in the provisions thereof.
17. No other ground has been urged to challenge the validity or vires of the notification under section 25-A. We, therefore, held that n exception can be taken to the action of the Government in appointing administrator under section 25-A to perform the functions of the marked committee. It may be observed that the judgment reported in PLD 1968 Kar. 552 whereby establishment of market committees in Hyderabad Division had been declared illegal, the Government was confronted with the situation in which it had become difficult to carry out the purposes of the Act in accordance with the provisions thereof. It would further appear from section 8 of the Act that every market committee shall consist of six members who are licensed under sections 6 and 9 of the Act.
Such licences could have' been issued only by a validly established market committee. Since there were no committees in the region, therefore, there could not have been a category of persons eligible to be members of the market committees as licensed under sections 6 and 9 of the Act. It may be -observed here that the Act as originally applicable to Punjab was amended from time to time. It was extended to the entire Province of West Pakistan in the amended form by the Punjab.
Agricultural Produce Markets Act (West Pakistan Amendment) Ordinance, 1964. In the original unamended Act there was a provision for establishment of initial, market committees. Composition of such market committees did not envisage inclusion of any licensed persons. But in the Act as extended to the entire Province there was no such provision. It was not conceived at the time of extending the Act to the entire West Pakistan Province in the year 1964 that without provision for establishment of initial market committees it would be impracticable to constitute valid market committees under section 8 of the Act. This was another reason for which the purposes of the Act could not be carried out in accordance with the provisions thereof. This situation fully warranted the action which the Government took by issuing the notification under section 25-A dated 16-1- 1969.
18. So far as the right of the market committee or of the administrator to recover market fee is concerned, Mr. Ali Ahmed Fazed, learned counsel for the petitioner has referred to the subtle difference between a fee and a tax and has argued that the so-called fee on sugarcane etc. Demanded by the Market Committee is in fact a tax. It is argued that a tax is a common burden levied compulsorily to form revenue of the Government whereas a fee is levied for services rendered to the persons paying the same and that as the Market Committee, Badin, or for that matter any Market Committee is not rendering any services to the petitioner, the so-called market fee must be taken to be a tax which is loveable only by a competent Legislature. In support of this submission he has referred to AIR 1953 Bom. 242 ; AIR 1954 SC 282, ; A 1 R 1962 All. 83 ; PLD 1960 Dacca 502 ; P LD 1966 SC 392 and PLD 1975 Lah.
784.
19. There is no cavil with the decisions reported in the above cases. The question is whether the Market Committee, Badin is not rendering any service or is not bound to render any service under the Act and the Rules to the persons from whom market fee is being charged. Learned Additional Advocate-General has referred to several provisions of the Act and the Rules which provide for various duties and functions which are to be undertaken by a Market Committee within the area of its jurisdiction. He has referred to section 21 of the Act which makes provision for the purposes for which the fund of a Market Committee is to be spent. One of such purposes is providing comforts and facilities such as shelter, shade, parking accommodation and water for the persons, draught cattle and pack animals coming to the market. Then section 22-A of the Act provides that a market committee shall maintain Board of Arbitration for the purposes of settlement of disputes arising between the licenced dealers. Again rule 21 of the Rules makes provision for duties of market committee and general administration of the market committee. It would thus appear that a market committee is supposed to discharge several functions and duties under the Act and the Rules and also render services as laid H down in sections 21, 22-A and the Rules. It cannot, therefore, be said that the fee levied by a market committee must be taken to be tax for the reason that no services are being rendered by the market committee.
20. It has next been urged that the Market Committee is not entitled to recover market fee both on sugarcane and its product, i,e, sugar and in support of this contention, reliance is placed on rule 29-A of the Rules which clearly lays down that if a fee is leviable on sale and purchase of any quantity of agricultural produce in a notified area then no fee shall be leviable on the sale or purchase within the same notified area of any agricultural produce manufactured or extracted from the agricultural produce in respect of which the fee has already been paid. In view of this categorical provision in the Rules, learned Additional Advocate-General has frankl admitted that the Market Committee is not justified in levying market both on sugar and sugarcane. If the fee has been paid by the petitioner on sugarcane then no levy can be made in respect of sugar which is manufactured out of sugarcane.
21. The next contention of the learned counsel for the petitioner is that Sugar Factories Act, 1950 has pron tanto repealed the Act of 1939. He has referred to several provisions of the Sugar Factories Act, 1950 and the rules made thereunder to show that they are inconsistent or contradictory to the provisions of the Act and the Rules. However, none of the provisions referred to, affect the right of the Government to issue notification under section 4 or section 25-A of the Act nor do those provisions affect the right of a market committee to levy market fee within the notified area. Since the Sugar Factories Act, 1950 is a special Act it shall override the Act of 1939 only to that extent to which its provisions are inconsistent or in conflict with the latter Act. The Act of 1950 shall not be deemed to have repealed the entire Act of 1939 in respect of the scheduled item which is sugar/sugarcane in the present case.
22. While challenging the right of the Market Committee to levy fee on sugar, the learned counsel also relied on a letter of the Agricultural Department dated 10-2-1969 whereby the Commissioner of all Divisions of West Pakistan were informed that it was decided to delete sugar and sugarcane from the Schedule of the controlled items. This notification does not purport to amend the schedule of the controlled items issued under sections 3 and 4 of the Act. This document is only a letter informing the Deputy Commissioners of the decision of the Government. This is not in the form of a notification seeking amendment of the Schedule under sections 3 and 4 of the Act. On the contrary, this letter says that the Deputy Commissioners should be asked to make proposals for deletion of sugarcane from the Schedule of controlled items. Thus this letter, at the most, shows that the Government had no intention to delete sugarcane from the Schedule, but does not show that this intention had been carried out. Therefore, no exception can be taken to another letter of the Government dated 1541-1969 whereby all the Commissioners were informed that the decision to exclude sugarcane from the Schedule of controlled items has been withdrawn. There is no force in the argument that by virtue of the first letter of the West Pakistan Government the item of sugarcane must be deemed to have been excluded from the Schedule and that the Government had no authority to withdraw the earlier decision.
23. For the above reasons, the petition is dismissed except to the extent of the relief that market fee cannot be recovered both on sugarcane and sugar. There shall be no order as to costs. except for one relief.