This civil revision petition assails the order dated 2t-2-1989 passed by the Civil Judge, Kallurkot, District Bhakkar which was upheld by an Additional District Judge, Bhakkar on 18th of March, 1989 refusing to grant temporary injunction to the petitioners during the pendency of a civil suit filed by them.
2. The petitioners claim to be licensees under section 6(3) of the Punjab Agricultural Market Produce Act, 1978 and are carrying on the business of sale and purchase of fruits and vegetables.
By means of a notification dated 8th of September, 1988 the Town Committee Dullewala which is urban local council, has levied a fee on the sale and purchase of vegetables and fruits. The petitioners felt aggrieved and challenged the vires of this notification by filing a declaratory suit inter alia on the ground that since they were already paying fee to the Market Committee constituted under the Punjab Agricultural Market Procduce Act, 1978, they could not be called upon to pay any fee on the same business to the Town Committee. Along-with the suit they had filed an application under Order 39 rules and 1 and 2 C.P.C. Which was dismissed by the trial Court as also the Additional District Judge Bhakkar on the finding that the petitioners have no prima facie case and in any case they are not likely to suffer an irreparable loss if the temporary injunction was refused. Hence this revision petition.
3. Mr. Muhammad Rashid Chughtai, learned counsel for the petitioners has contended that as the petitioners were carrying on business in an area notified as market area under the Punjab Agricultural Market Produce Act, 1978 they could not be called upon by the local council to pay any market fee for the same business. The learned counsel relied upon Muhammad Ghias and others v.
Market Committee, Kamalia and another (PLD 1982 Lah. 710). A careful reading of this authority shows that rather than helping the petitioners, it goes against them. The Division Bench of this Court which was seized of the matter after considering the provisions of Punjab Agricultural Market Produce Act, 1978 in juxtaposition with those of Punjab Local Govt. Ordinance, 1979, came to the conclusion that as there is a conflict between the two, the Punjab Local Govt. Ordinance, 1979, having been given an over-riding effect and being a later provision has to prevail and, therefore, in the urban area, the Local Council was justified in charging the market fee. There is thus no force in the contention of the learned counsel for the petitioners. The contention of the learned counsel for the petitioners that they were carrying on business in a notified market area and not in an urban area is equally without any force. It is not denied by the learned counsel that the area in question is an urban area within the meaning of Punjab Local Govt. Ordinance, 1979 and it could be denuded of this status by notifying it as a notified area under the Punjab Agricultural Market Produce Act, 1978.
4. The next contention of the learned counsel was that the notification issued by the Town Committee is in violation of section 137 of the Punjab Local Govt. Ordinance inasmuch as according to the learned counsel tax can only be levied if it is so directed by the Govt., as there was no direction to levy the tax by the Govt., the notification was illegal. This contention is not well founded.
Section 137 enables the Local Council without permission of the Govt. To levy any tax. If, however, there is a direction by the Govt. To make the levy, the Local Council has no option but to proceed to implement that direction. The reliance of the learned --counsel on the letter dated 26th November, 1983, addressed by the Director Agriculture (Economics & Marketing) Punjab, Lahore to the Deputy Commissioner, Bhakkar is inapt. The dispute in that case was with regard to the levy of the market fee by the Town Committee. Moreover, as' has been pointed out by the learned Assistant Advocate-General, such a plea was not raised in the plaint or in the application under Order 39 rules 1 and 2, and therefore, cannot be allowed to be agitated for the first time in these proceedings. If the grievance of the petitioners is the some instructions from the Govt have been violated by the Town Committee, their remedy lies in approaching the Govt. By taking appropriate proceedings available to them. It was lastly contended by the learned counsel for the petitioners that section 137 of the Punjab Local Govt. Ordinance is subject to the pre vision of law for the time being in force and thus includes the Punjab Agriculture Produce Market Act, 1978. There is, however, no provision in this enactment which prohibits the Local Council from levying any tax and therefore, prima facie, I am not inclined to agree with the learned counsel.
5. The two Courts below in the exercise of their discretion refused to grant temporary injunction to the petitioners holding that they have no prima facie case and also because the dispute is with regard to a quantified and ascertained sum of money and, therefore, loss, if any, to the petitioners, cannot be termed to be irreparable. It is well settled that this Court cannot in the exercise of revisional jurisdiction, interfere with such like discretionary orders passed by the subordinate Courts unless the discretion exercised is shown to be arbitrary or fanciful. Shahzada Muhammad Umar Beg. v. Sultan Mahmood Khan and another (PLD 1970 SC 139) refers. I do not find any illegality having been committed by the two Courts below so as to justify interference by this Court.
There is, therefore, no force in this revision petition. It is dismissed in limine.