ASIM HAFEEZ, J. This constitutional petition is directed against order dated 04.12.2021 of respondent No.2, passed pursuant to the direction by this court, issued vide order dated 23.11.2021 in W.P. No. 70579 of 2021.
2. Respondent No.2 held that petitioner was required to get the building plan, approved from the District Council Toba Tek Singh, regarding prospective Private Market project and pay the conversion fee of Rs.27 million. It is observed in the order impugned that approval for the erection/re-erection of the wilding was required under Rule 7(b)(13) of the Punjab Local Government Land Use Plan (Classification, Re-classification and Re-development) Rules, 2020 read with Punjab Local Government Act, 2019.
3. It is the case of the petitioner, advocated by the learned counsel, that approval was granted for the establishment of the Private Sector Market "Fruit and Vegetable Market" on lands measuring 24- Kanals 5-Marlas by the Chairman Punjab Agricultural Marketing Regulatory Authority, in exercise of powers under section 12-A of the Punjab Agricultural Marketing Regulatory Authority Act, 2018 (Act, 2018). Adds that approval extended included permission to raise commercial building / Private Market project, which excluded the requirement of seeking building plan approval from the District, Council - Local Government -- or making deposit of conversion fee. Learned counsel added that only the terms and conditions prescribed in the Notification of 11.03.2021 were required to be fulfilled under the Act, 2018, which is a special law and section 12-A excludes the applicability of any other law.
4. Conversely, the learned Law Officer submits that mere approval for establishment of Private Sector, Fruit and Vegetable Market, does not excludes the applicability of law requiring approval of the building plan and permission regarding permissible use of the land in terms of Rule 7(b)(xiii) and Rule II of the Punjab Local Government Land Use Plan (Classification, Re-classification and Re- development) Rules, 2020, framed in exercise of powers under sections 7 and 259 of the Punjab Local Government Act, 2019.
5. Arguments heard and record perused.
6. Before proceeding to adjudge the controversy, it is expedient to reproduce section 12-Aof Act, 2018 -- Section 12-A was added as consequence of Punjab Agricultural Marketing Regulatory Authority (Amendment) Act, 2020 (III of 2020) dated 19.03.2020.
12A. Establishment of Private Market -- (I) Notwithstanding anything contained' in any other law for the time being in force, after the commencement of the Act, any person shall be entitled to establish a private market for the wholesale, sale or purchase of agricultural produce in accordance with provisions of the Act, in such manner as may be prescribed.
(2) A private market established under the Act shall be regulated in accordance with the provisions of the Act and the rules made thereunder from time to time."
7. In exercise of powers under section 30 of Act, 2018, the Authority framed and promulgated Regulations, called as Punjab Private Sector Agricultural Produce Marketing Regulations, 2020 (Regulations, 2020). The controversy relates to the establishment of private market, which expression is defined in terms of clause (pa) of section 2 of the Act, 2018. Part-III of the Regulations, 2020, deals with the application for registration of the Private Sector Markets, reproduction thereof would facilitate the resolution of the issue at hand, beside elucidating the relevance, scope, functioning and jurisdiction of the Town Council in the context of establishment of private market.
Section 2 (pa), ibid, and Part-III of the Regulations, 2020 are reproduced for facility, "2(pa) 'private market' means a facility that includes a building or a block of buildings, an enclosure and such infrastructure or services as may be prescribed for the purposes of the wholesale purchase or sale of agricultural produce owned by private person, entity or entities, established and managed under the Act."
PART-III Application for Registration of Private Sector Markets
7. AGRICULTURAL PRODUCE TO BE REGULATED IN PRIVATE SECTOR MARKET: The Authority may by notification allow a Market Operator and the Management Committee to conduct sale and purchase of agricultural produce.
8. APPLICATION FOR PRIVATE AGRICULTURAL PRODUCE MARKET, COLLECTION CENTRE, AND KEY SERVICE PROVIDER:
(1) Subject to the provision of sections 11 and 12A of the Act, any person who wishes to establish a Private Sector Market shall apply to the Authority for approval of locational clearance and preliminary planning permission, by filing in duplicate the following:
(a) Letter of prescribed application appended to the Regulations as Form-EPM (for Private Sector Market) or Form-ECC (for Collection Center exclusively) together with the requisite fees notified by the Authority;
(b) Site plan drawn to the scale indicating lot property boundaries, circulation/road network parking, building site/buildable area, future expansion, if any.
(c) Certified Title Deed of concerned property including a registry, lard malkiat, or any other relevant document with the affidavit of the owner(s);
(d) Khasra girdawri and aks-shajra, certified by a Revenue Officer concerned;
(e) Company incorporation/firm registration certificate/sole proprietor whichever is applicable;
(f) NTN and trading Bank Account;
(2) Any person wishing to register as a Key Service Provider shall apply to the Authority in the application appended to these Regulations as Form-KSP (for Key Service Provider exclusively) along with the requisite fee to be notified by the Authority (for Key Service Provider exclusively).
(3) The Applicant shall provide an affidavit that he is not a defaulter of any dues of the Authority nor has breached any provision of the Act or the Rules or Regulations made thereunder.
(4) The Applicant may be a sole proprietor, Association of persons, a partnership firm, or a registered company, duly registered under the relevant laws.
Provided that an appropriate resolution duly approved under the law shall be annexed with the application, in case of the Association of persons, a partnership firm, or a registered company.
9. SCRUTINY COMMITTEE
(1) The Authority shall constitute a scrutiny committee(s) for vetting of applications) for establishment of a Private Sector Market.
(2) The Scrutiny Committee after vetting, the application and considering the objections received, if any, shall give its recommendation to the Director General for approval or rejection of preliminary permission within 15 days if the application complies with the terms and conditions prescribed.
(3) The Director General after considering the report / recommendation(s) of the scrutiny committee may allow or dis-allow preliminary permission to the applicant for establishment of Private Sector Market, if he is satisfied that the application complies with the terms and conditions prescribed.
10. SUBMISSION OF TECHNICAL AND FINANCIAL PLANS Following grant of preliminary permission for establishment of Private Sector Market, the Applicant shall submit the following:
(1) Technical Parameters: It includes;
(a) Topography survey signed by a Town Planner registered with Pakistan Council of Architects and Town Planners;
(b) Proposed site plan as per Standards and Parameters attached as Schedule AA duly signed by a Town Planner registered with Pakistan Council of Architects and Town Planners;
(c) Detailed drawings of infrastructure along with estimates duly prepared Pages 7 of 68 on the latest Market Rates Schedule notified by Communications and Works Department, Government of Punjab for the concerned District and verified by a consultant/professional engineer registered with Pakistan Engineering Council; and
(d) Construction/building plan indicating time period for completion, which shall not exceed one year.
(2) Feasibility Plan: It includes;
(a) The Applicant shall submit a business plan for establishing Private Sector Market, and
(b) The Applicant shall deposit refundable security amount with the Authority equivalent to 10% of the development cost of the project, to be refunded only three years after completion of the development work.
11. APPROVAL AND REGISTRATION:
(1) After examining the technical and business plans, the Director General shall give its recommendations to the Authority whether the applicant should be allowed or not to establish a Private Sector Market or Collection Center, as the case may be. Provided that in the case of a Key Service Provider, the Director General will give its recommendations to the Authority on the basis of the particulars given in the Form-KSP.
(2) The Authority after satisfying itself that the applicant has met the requirements, shall give a formal letter of approval of the scheme to the applicant subject to the stipulation that the applicant shall apply on the prescribed form and deposit within 30 days of the decision, the following requisite fees,: Sr.
No.Type of MarketApplication Fee (Rs.)Registration Fee (Rs.)Annual Renewal of Registration Fee (Rs.)Late Fee (Rs.)
1. Private Market50,000/- 50,000/- 50,000/-5% of the amount involved 2.Collection Center5,000/ 10,000/- 10,000/- -do- 3.Kay Service Provider5,000/ 10,000/- 10,000/- -do- Provided further that the Authority shall consider revision of the fees, on every five years basis.
(3) The land/spaces allocated for common service areas including roads, streets, pavements, platforms, parking spaces, lavatory blocks, prayer areas etc., shall be mortgaged with the Authority through duly executed and registered mortgaged deed at the expense of the Applicant.
12. DEVELOPMENT, MONITORING AND COMPLETION:
(1) The Applicant on approval of his application shall be called Market Operator who shall complete the Private Sector Market within a period of twelve (12) months from the date of grant of preliminary permission. Provided that the Authority may, upon the application of the applicant, extend the completion period for up to six (06) months subject to imposing fine of 2% of the development cost.
(2) A Private Sector Market and Collection Centre shall conform to the guidelines provided in Schedule-AA annexed with these Regulations.
(3) The Authority shall ensure that there is no deviation from the scheme. It's authorized officer may, without prior notice, make regular site visits to check out the development works.
(4) Upon completion of the scheme of Private Sector Market, the Applicant may apply for a return of the performance security.
(5) The Applicant shall be responsible for all Government taxes charges and fees incurred in connection with the development of the scheme.
(6) After completion of the Private Sector Market, the affairs of the market shall be governed by the Market Operator through a Management Committee.
(7) Following completion of the development works, the Applicant shall integrate the Private Market with the Authority's Marketing Information System."
[Emphasis Supplied]
8. Private market is a facility established and managed under the Act, Owned by the private person, entity, or entities, for the purposes of wholesome purchase or sale of agricultural produce.
Construction proposed to section 12-A by the counsel for the petitioner is fallacious. Section 12-A confers eligibility on any person to establish private market in accordance with the provisions of the Act, 2018 and in such manner as prescribed -- prescribed is defined under section 2(p) of Act, 2018 'means prescribed by the rules or the regulations made under the Act. Section 12-A merely grants a right to seek license for establishing a facility -- private sector fruit and vegetable market.
The facility is regulated in accordance with the provisions of the Act and the rules framed thereunder -- subsection (2) of section 12-A of Act, 2018. In terms of the Regulation 8(1) - Part-III -, applicant is required to apply for approval of locational clearance and preliminary planning permission, which application required provisioning of Site Plan drawn to the scale indicating lot property boundaries, circulation/road network, parking, building site/buildable area, future expansion if any - Regulation 8(1)(b). The application shall be examined by the Scrutiny Committee before allowing or rejecting preliminary permission for establishment of private sector market -- Regulation 9. After grant of preliminary permission, applicant is required to submit Technical and Financial Plans, which inter alia included construction/building plan indicating time-period for completion -- Regulation 10(d). In terms of Regulation 12(2), private sector market and collection center shall conform to the guidelines provided in Schedule-AA annexed with the regulations.
Clauses 2(c) and (d) of the Schedule-AA are significant, which are reproduced hereunder as; "Schedule-AA"
General Guidelines for Establishment of Private Market and Collection Centers Under Regulation 10 (2) of the Punjab Private Sector Agricultural Marketing Regulations, 2020
(1) Establishment of the Private Market and Collection Centre shall be subject to the general guidelines in manner herein provided;
(2) Location:
(a) Presence of/or ability to provide utilities (power, water supply, etc.) at the site.
(b) The market site shall not be located at least 1 km from the vicinity of public schools, hospitals, court complex and 500 meters from abattoirs and other possible sources of contamination.
(c) Minimum distance to an existing public or private market shall be suitable distance depending on the circumstances, on case to case basis but not less than 10km in metropolitan areas; 4 km in municipal areas and 2 km in all other areas including the Town areas, as per classification under the Punjab Local Government Act, 2019.
(d) Compatibility of the project to the land use plan/zoning law, rules made thereunder or under these Regulations in the absence of any of which, the existing dominant land use in the area."
9. The classification of the land under Punjab local Government. Act, 2019 has relevance qua the location of the private market. Clause (d) suggests compatibility of the project to the land use plan/zoning law and rules made thereunder or the regulations, and in the absence of any such limitation, existing dominant land use in the area will be the benchmark. Hence, submissions that Notification dated 11.03.2021 extends blanket permission to the petitioner is misconceived. Perusal of the Notification, issued in exercise of powers under section 12-A indicates approval regarding registration of written intimation for, establishment of private sector market, one of the conditions whereof was adherence to the requirements of Act, 2018 and Regulations, 2020. It is misleading to argue that authority of the Local Government stood diluted or substituted regarding requirements of the approvals qua residency of the private market, in terms of land use plan/zoning law with respect to the permissible use of the land -- and approval of building plan. Section 12-A merely acknowledges entitlement for establishment of facility and exclusivity is extended to the extent of grant of licensing rights for establishment of private market -- and exclusion of any other law for the time being in force has had to be read in the context of grant of privilege of license to establish private market and not otherwise. This court reserves comments regarding alleged sale of shops without fulfilling the requirement of law, in respect whereof department is at liberty to pursue action. It is misconception to assume that Authority under the Act, 2018 substituted/replaced the functions and powers of the Local Government, catered for in terms of Article 140- A of Constitution of Islamic Republic of Pakistan, 1973.
10. I have examined the order impugned, wherein no illegality is found, requiring indulgence under the constitutional jurisdiction.
11. This constitutional petition is devoid of merits and same is, therefore, dismissed. No order as to the costs.