' This judgment shall dispose of these two petitions (W. P. No, 5431 of 1981 and W. P. No, 5638 of 1981) as in both the petitions the exclusion of villages falling within the limits of Union Council Shah Jamal from the `notified market area' of Market Committee, Hafizabad and decision of the Zilla Council, respondent No, 2 in not recommending Syed Mukhtar Hussain petitioner for nomination as a member of the abovesaid Committee on the basis that the area of Union Council Shah Jamal has been included, in the notified area of Market Committee, Sukheki, has been challenged. Syed Mukhtar Hussain was initially recommended for nomination as a member by the Zilla Council but later vide resolution dated 28-6-1981 Jamal Ahmad respondent was recommended in his place.
The nomination of the members ultimately made by the Government by so excluding the revenue estates of Shah Jamal and by not considering the growers and dealers etc. Of the said Union Council for nomination as members of the Market Committee have been assailed by both the petitioners. Imdadullah petitioner, though has been nominated, yet he is aggrieved as according to him his candidature and election for the office of Chairman of the Committee has been prejudicially affected by the exclusion of the revenue estates of Union Council Shah Jamal and the representatives to be nominated therefrom. The nomination of Rai Muhammad Shaft and Abdur Rashid, respondents as members of the Committee has also been assailed on the assertions that Abdur Rashid respondent could not be appointed as representative of licensees under section 6 of the Ordinance because he himself is not a licence-holder and that Rai Muhammad Shafi, who though resident of the area falling within Shah Jamal Union Council, yet has been nominated as representative of growers of Hafizabad. The reliefs prayed for by Syed.Mukhtar Husain, petitioner, are :-
(i) village Shah Jamal continues to be a part of the notified market area of Market Committee, Hafizabad according to law and that the said village (village Shah Jamal) has not been excluded from the said 'notified market area' as required under subsection (2) of section 4 of Punjab Agricultural Produce Market Ordinance (Ordinance XIII) of 1978 ;
(ii) the inclusion of village Shah Jamal in the 'notified market area' of Market Committee Sukheki is void ab initio and/or does not deny to the petitioner the status of a "grower" of the `notified market area' -Hafizabad-(Hafizabad Market Committee), according to law, and that
(iii) the decision of the Zilla Council respondent No, 2 dated 28-6-1981 be also quashed as having been made without lawful authority and the resultant constitution of the Market Committee, Hafizabad, as per notification dated 14-10-1981 may also be quashed being illegal and non-existent in the eye of law.
2. In order to appreciate the respective submissions of the parties, it appears appropriate to give the history of establishment of Market Committee, Hafizabad, and Market Committee, Sukheki. The market areas of Sukheki comprised of the limits of revenue estates of village Jandraka, Sukheki and Tawellewali vide notification dated 30-6-1941. This notification was cancelled w. e. f. 17-8-1973 vide notification dated 28-1-1974. The Governor of the Punjab then vide notification, published in the Punjab Gazette dated 8-6-1973, under section 3 of the Agricultural Produce Act, 1939, declared his intention to exercise control over the sale and purchase of agricultural produce in respect of each notified market area shown in column No, 5 in the Gujranwala District. According to this column, the notified market area of Hafizabad included, besides others, all the revenue estates falling within Union Council Shah Jamal and Kaleki of Police Station Sukheki and revenue estates of Rasulpur Tarar of Police Station, Jalalpur Bhattian upto boundaries of and including all the revenue estates falling in Union Council Jallan etc. The `notified market area of Pindi Bhattian' included besides others, all the revenue estates falling in Police Station, Sukheki excluding all the revenue estates falling in Union Council Shah Jamal and Kaleki, District Gujranwala. This was followed by a notification dated 17-8-1973 issued under section 4 of the Act and the same was published in the Punjab Gazette of 16-11-1973. This was the position obtaining till enforcement of the Punjab Local Government Act (XXXIV of 1975) as under section 158(2) of the Act, the Market Committees constituted under the Agricultural Produce Markets Act, 1939 were to be deemed to have been constituted under the aforesaid Act. The provisions with regard to Market Committees were contained in sections 156 to 165 of the 1975 Act and these sections were then repealed by section 39 of the Punjab Agricultural Produce Market Ordinance (Ordinance XXIII of 1978) as the law for purposes of regulating sale and purchase of agricultural produce and establishment of markets was re-enacted in the said Ordinance. Under the Ordinance of 1978, the Punjab Agricultural Market Produce General Rules, 1979, were issued vide notification dated 24-5.1979, which amongst others, provide for the constitution of Market Committees in consultation with the associations of growers, consumers and licensees existing within the notfied market area in obtaining the names which may form panel for the selection of the members of the Market Committee. The Market Committee, Hafizabad, was classified as 'C' Class Market Committee and then vide another notification under sections 7 and 8 of the Ordinance, numerical strength of membership of the Market Committee was determined as '17'. Then a notification dated 10-2-1980 was issued in exercise of the powers vesting under section 3 of the Ordinance declaring the intention of exercising control over the sale and purchase of agricultural produce mentioned in Column No, 5 of the Schedule in respect of the notified market area shown in column 3 in Tehsil Hafizabad. Columns 3 and 4 of the notification may be reproduced for ready reference- {{TABLE TEXT}} Name of Notified Boundaries of Notified Market Area Market Area 3 4 Market Committee Sukheki Upto the boundaries of and including all the revenue estates falling in Police Station Sukheki including all the revenue estates falling in union councils Kaleki and Shah Jamal and including Railway Stations Sukheki, Kaleki and Nautheh. {{TABLE TEXT}} ' This was followed by the notification dated 10-7-1980 issued under section 4 of the Ordinance whereby the Governor of the Punjab was pleased to exercise control over the sale and purchase of agricultural produce mentioned in Column No, 5 in respect of notified market area shown in Column No, 4 in Tehsil Hafizabad, District Gujranwala. Column Nos. 3 and 4 of this notification are exactly the same as have been reproduced above.
' A mention may be made of a development which took place during the hearing of this petition.
This is issuance of notification dated 6-1-1983, which is being reproduced in extenso :- ' Notification No, S.
0. A. (C & M)-X-40/72.-In exercise of the powers conferred by section 3 and section 4 (2) of the Punjab Agricultural Produce Markets Ordinance, 1978, the Governor of the Punjab, is pleased to declare his intention to exclude the Union Council Shah Jamal and Union Council Kaleki, from the notified market area of Market Committee, Hafizabad, as already notified vide this Department Notification No, 971-D(S), dated 30-6-1941, 10(35) S 0 (F & G) 11/61, dated 10.7-1964 and S 0 A (S & M)
XI-16/73, dated 16-11-1973.
(2) The above declaration is published for the information of the persons likely to be affected thereby and will be taken into consideration on the expiry of 30 days from the date of its issue together with any objection of suggestion that may be received in respect thereto by the Deputy Commissioner, Gujranwala, through the Extra-Assistant Director of Agriculture (E & M), Gujranwala, during the specified period."
' This completes the legal history of the constitution of Market Committee, Hafizabad, and re- emergence of Market Committee, Sukheki.
3. The factual aspect of the grievance may now be stated. The Chief Officer Zilla Council, Gujranwala, wrote to Secretary, Market Committee, Hafizabad, on 3-8-1980, to send the panel of members for approval of the Zilla Council. The panel is to be approved by the Zilla Council in view of the provisions of section 8 as amended by Punjab Ordinance IV of 1980. The names of the petitioners were included in the panel of members which was recommended for appointment as members of the Market Committee, Hafizabad, vide Resolution No, 3, dated 12-11-1980 and Resolution No, 18 dated 28-2-1981. The Secretary, Agricultural Department however vide Memo.
Dated 11-6-1981 addressed to the Chairman, Zilla Council, advised that the approval of the penal of members be sought from Zilla Council according to law, after consulting the associations of growers, traders and consumers existing within the notified market area. A panel of names was presented to the Zilla Council and the same was approved vide resolution No, 6 dated 28-6-1981: The name of Tamil Ahmad respondent was, however, included to replace Syed Mukhtar Husain, petitioner, on the basis that the Union Council, Shah Jamal, stands included in the Market Committee, Sukheki. This exclusion was due to issuance of notifications dated 10-2-1980 and 10-7- 1980 under sections 3 and 4 of the Ordinance, 1978, respectively. The petitioners having felt aggrieved of the resolution dated 28.6-1981 and the above-mentioned notification, invoked the constitutional jurisdiction of this Court for grant of the above-mentioned reliefs.
4. Mr. M. Arif and Mian Muhammad Yasin Wattoo, Advocates, learned counsel for the petitioners contended that-
(1) for excluding any area earlier notified, the procedure provided by sections 3 and 4 of the Ordinance is to be followed in view of the provisions of subsection (2) of section 4 of the Ordinance ;
(ii) notifications dated 10-2-1980 and 10-7-1980 issued respectively under sections 3 and 4 of the Ordinance are void and incompetent so far as these seek to include the villages falling within the Union Council Shah Jamal as the said area formed part of "notified area" of Market Committee, Hafizabad ;
(iii) the non-consideration by the Union Council of the growers, dealers etc. Of the villages falling within the area of Union Council Shah Jamal illegal, as it was illegally assumed that the said area was no longer part of the notified market area of Hafizabad Committee. The constitution of the Committee as a whole, as such, was void ; and
(iv) that the two respondents, namely, Abdur Rashid and Rai Muhammad Shafi, in view of the grounds taken in the petition, could not legally be nominated as members.
5. In reply, learned counsel for the respondents, besides making reply on merits, raised the following preliminary objections-
(i) the petition's suffer from multifariousness of causes of action ;
(ii) the petitioners have no locus standi and, in any case, the petitioners are not aggrieved persons as no right vests in either of the petitioners to be nominated as a member or for that matter to assail the constitution of a market committee. This submission proceeds on the basis that any grower, dealer etc. Residing even in the notified area of the Market Committee has no right to claim nomination as a matter of right ;
(iii) the petitioners having not assailed the establishment of the Market Committee Sukheki and having not made Market Committee, Sukheki a party to the petitions, cannot claim the relief prayed for as in case the relief prayed for is granted, Market Committee Sukheki is likely to be affected ;
(iv) as regards objection taken to the nomination of Abdur Rashid and Rai Muhammad Shafi, it was submitted that alternate remedy provided by sections 11 and 28 of the Ordinance being available constitutional jurisdiction cannot be allowed to be invoked, and lastly; (v)that the petitions suffer from lathes, as even the first of the two, was filed after almost 17 months of the issuance of notification dated 10-74980 and even the refusal to include the name in the panel was made on 28-6-1981.
' On merits, it was argued that notifications dated 10-2-1980 and 10-7-1980 were issued in view of notification dated 28-1-1974 which had cancelled the notification of the year 1941. The notifications issued in respect of Sukheki Market Committee validity exclude area of Union Council Shah Jamal from the notified market area of Hafizabad Market Committee and that there was no need to issue in the first instance a notification regarding exclusion of the said area ; that section 4 (2) of the Ordinance only applies where it is intended to exclude the entire area which was earlier notified as market area and that in case of adjustment of areas between two Committees already existing or between one already existing and the other being created newly, the specific notification for exclusion of any area need not be issued. With regard to nomination of Abdur Rashid and Rai Muhammad Shafi, objections taken were controverted on factual plane and both the parties referred to the respective documents brought on the record. However, on issuance of notification dated 6-1-1983, learned counsel for the respondents as well as Mr. Tanvir Ahmad Khan, learned Assistant Advocate-General, argued that the area of Union Council Shah Jamal stood validly excluded by virtue of the two impugned notifications and that the notification dated 6-1-1983 was issued by the Government in order to remove the doubts being entertained by some persons as to the exclusion of the said area from the notified market area of Hafizabad Market Committee. He argued that otherwise, there was no necessity to issue this notification because by inclusion, the said area stood excluded automatically.
' Dr. A. Basit, learned counsel appearing for the respondents added that the power to include or exclude certain area lies within the discretionary domain of the authorities and exercise of such discretion cannot be subjected to scrutiny in constitutional jurisdiction.
6. Mr. M. Arif and Mian Yasin Wattoo, learned counsel for the petitioners, on the other hand, argued that the notification dated 6-1-1983 has been issued in recognition of the legal position obtaining in view of the provisions of section 4 (2) of the Ordinance. According to them, the impugned notifications of the year 1980 and this notification dated 6-1-1983 cannot stand together and, as such, from the issuance of this notification, manifestly the intention is to provide opportunity to raise objections on the question of exclusion of the said area from Hafizabad Market Committee and its inclusion in. The Market Committee, Sukheki. They argued that the exercise to be gone into in pursuant to the notification issued cannot be considered to be an exercise in futility, as that will amount to imputing mala fides to the Government because if the area stands already excluded from the notified area of Market Committee, Hafizabad, then there will be no occasion for raising the objections and their fair and equitable determination by the statutory functionaries.
7. Before dealing with the respective submissions on merits, I propose to deal with the preliminary objections. The objection regarding multifariousness of causes of action has no support from the record as in the petitions multifarious causes of action have not been joined. The grievance disclosed and the relief prayed for does not suffer from any defect as was canvassed. The objection as to locus standi of the petitioners to institute the petitions, is also baseless as Syed Mukhtar Husain petitioner was at first included in the panel of members, recommended by the Zilla Council but later on, on the assumption that he is resident of the area which has been excluded from the notified market area of the said Committee, his name was omitted. The petitioner may not have a vested right to the appointment but surely he had the right to be considered for inclusion in the panel of members to be recommended by the Zilla Council. In case the assumption of the Zilla Council as to the exclusion of Union Council Shah Jamal is held to be illegal and unwarranted in law, that will naturally invalidate the panel recommended after excluding the petitioner and other growers, dealers etc. Of the said area from consideration. Likewise, Imdadullah, the other petitioner, who is interested in contesting the election of the office of the Chairman of the Market Committee, can rightly claim to be aggrieved of the exclusion of the members of certain area which otherwise A duly form part of the notified area. The right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if a petitioner discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. See PLD 1969 SC 223. The petitioners, therefore, have the necessary locus stand to maintain the constitution petition being the aggrieved persons.
' The next objection as to non-impleading of Market Committee, Sukheki cannot also prevail as the exclusion of the villages of Union Council Shah Jamal from Market Committee, Hafizabad, and the constitution of the Market Committee, Hafizabad, is under challenge, Moreover, the Government of the Punjab which issued the impugned notifications has been impleaded. Thus, the parties who will directly be affected in case of acceptance of the petition are before this Court.
' The objection as to the nomination of Abdur Rashid and Rai Muhammad Shafi on the basis that alternate remedy under sections 11 and 28 of the Ordinance is available, would be applicable to the extent of grant of relief against these two persons only. This objection may not be gone into as I do not propose to deal with the merits of the nomination of these two respondents in view of the fact that controvertial questions of fact have been raised. These factual controversies cannot be gone into in the exercise C of constitutional jurisdiction. I am not going into the merits of these nominations also in view of the order which I propose to pass.
' The objection as to laches is also without merit as the refusal to include the name of Syed Mukhtar Husain petitioner was made on 28-6-1981 and the writ petition was filed on 19-11-1981. The petitions, therefore, cannot be considered to be suffering from laches or inordinate delay. Moreover, both the notifications under sections 3 and 4 were not given due publicity in accordance with the provisions of rules 3 and 4 of the Rules 1979. Whatever objections were received, were neither forwarded to the Deputy Commissioner nor to Government and the notification was got issued on the move made by the Director-General, Agriculture, Punjab, though under D rule 3 of the Rules, the objections received by the Extra-Assistant Director of Agriculture (E & M) are to be forwarded to the Deputy Commissioner who is then to forward the same to the Government for considering the objections and for making the declaration as is contemplated by section 4 of the Ordinance. The above stated position emerges from the record produced in Court by the learned. State counsel and in the above circumstances, it cannot be urged that the notifications issued under sections 3 and 4 were given due publicity as provided by rules 3 and 4 of the Rules. Thus, the plea as to delay, if any, in assailing the said notifications cannot, therefore, succeed.
8. Coming to the merits, the first thing which emerges is that th notifications were issued without due compliance of the requirements of rules 3 and 4 of the Rules, secondly, the notification dated 6-1-1983 clear! Manifests the intention of the Government. Moreover, the notifications dated 30- 6.1941, 10-7-1964 and 16-11-1973 had not excluded the revenue estates of Union Council Sabah Jamal from the notified market area of Market Committee, Hafizabad. The contention of the learned Assistant Advocate-General and the learned counsel for the respondents that the latest notification was meant to clear the doubts only and that the Union Council, Shah Jamal, stood validly excluded since issuance of the notifications in the year 1980, if accepted, would render the notification dated 16-1-1983 redundant and resultantly an exercise in futility. This plea cannot be accepted as redundancy cannot be attributed to the actions taken consciously by the functionaries of the Government except when that is the only conclusion which can be drawn.
Moreover, I am not aware of any principle, rule of law applying which one can defeat the act of the Government expressed in clear and unequivocal terms. The intention F expressed by issuing notification dated 6-1-1983 cannot be set at naught by terming it as an exercise in futility. Again there appears to be sound reasons for issuing this notification. It is important to note that the provision as is contained in subsection (2) of section 4 of the Ordinance, was not there in the repealed Act of 1939. This provision reads :- "S. 4 (2).-Government may at any time by notification declare its intention to exclude any area which is already declared as a notified market area and also to include or re-include any area and in so doing the procedure laid down in section 3 and subsection (1) of this section shall be followed."
In view of the above provision, the inclusion of an area which is forming part of an already notified market area into another market area would not be valid until and unless it has declared its intention of excluding it from a notified market area through a notification issued after complying with the G procedure laid down under subsections (1) and (3) of section 4 of the Ordinance. The above said provision, so added in the Ordinance, was not without any purpose. The exclusion of an area from any already notified market area may in a situation even affect the class of a Market Committee and the residents of that particular area or the residents of the entire area of the Market Committee may validly object to such an exclusion. According to rule 65 of the Rules, a Market Committee with an annual income of rupees for lac or above is to be classified as Class 'A', a Market Committee with an annual income of more than rupees two lac and less than for lac rupees is classified as Class 'B' and a Market Committee having an income of less than two lac rupees is to be classified as Class 'C', and all newly established Market Committees are to fall in Class 'C' for at least three years. Thus, a situation may arise where the exclusion of a certain area may adversely affect the classification of the Committee itself and may also affect the activities which are otherwise being carried on and the facilities which are being provided by a Market Committee on account of exclusion of such an area.
9. Moreover, a perusal of notification under section 3, dated 10-2-1980 would show that declaration made was to the effect that intention is to exercise control over the sale and purchase of agricultural produce mentioned in column 5 of the Schedule in respect of notified market area shown in column 3. This Schedule has been reproduced above and under column 3 what is written is "Market Committee, Sukheki". The attention was not thus invited to column No, 4 where while giving the boundaries of the notified area, all the revenue estates falling in Union Council Shah Jamal etc. Were also included. Then, in the notification under section 4 dated 10-7-1980, it was declared that the Governor is pleased to exercise control over the sale and purchase of agricultural produce mentioned in column 5 of the Schedule in respect of notified market area shown in column No,
4. In this notification, reference was made to entries in column No, 4 but in the earlier notification the reference was only to column No,
3. These notifications as pointed out above, were not published in the manner provided in rules 3 and 4 of the Rules. Again, the objections were neither invited nor the objections filed. If any, were admitted to be forwarded to the Deputy Commissioner or to the Government for consideration. These notifications so issued without compliance of the provisions of rules 3 and 4, were thus not effective to exclude revenue estates of Union Council Shah Jamal from the notified market area of Market Committee, Hafizabad. Column 3 wherein the mention was made of Market Committee, Sukheki, was also misleading, as at that time Market Committee, Sukheki, did not exist because the establishment of Market Committee is to be notified under section 7 and such a notification can be issued only after issuance of notification under sections 3 and 4. The notification under section 7 of the Ordinance cannot be issued simultaneously with the issuance of notification under section 3 of the Ordinance. In any case, the fact that the revenue estates of Union Council Shah Jamal do not stand excluded, was put beyond controversy by issuing notification dated 6-1-1983 under section 4 (2) read with section 3 of the Ordinance. In this notification intention to exclude the revenue estates of the said Union Council was manifestly and clearly made and reference was also made to the notifications issued on 30-6.1941, 10-7-1964 and 16-11-1973. Notification of 1941 was in respect of Sukheki market area.
This notification was cancelled vide notification dated 28-1-1974. Notification dated 10.7-1964 is not on record and, as such, nothing can be said about it. Notification dated 16.11-1973 pertains to notified market area of Hafizabad and Pindi Bhattian. In this notification, Union Council Shah Jamal and Union Council Kaleki formed part of the notified market area of Hafizabad. The issuance of this notification and inviting of objections for consideration before taking the decision to exclude it, naturally, means H that the Government has accepted the position that the earlier notifications of the year 1980 were not effective in law. In view of above, the learned Assistant Advocate-General was arguing contrary to the intention of the Government manifested in the notification dated 6-1- 1983. The non-consideration of the growers, dealers etc. For inclusion in the panel of members to be recommended by the Zilla Council on the basis that the revenue estates of Union Council Shah Jamal stands excluded, was without lawful authority and illegal.
10. As a result of the findings recorded above, both the writ petitions are accepted and it is declared that revenue estates of the Union Council Shah Jamal do not stand excluded by virtue of the notifications dated 10-2-1980 and 10-7-1980 issued under sections 3 and 4 of the Ordinance, respectively, and that the decision of Zilla Council, Gujranwala, respondent No, 2 dated 28-6-1981 is hereby quashed being without lawful authority, as the representation of the revenue estates of Union Council Shah Jamal, was excluded on a basis which was non-existent in law. In the circumstance of the case, there will be no order as to costs.