' SAAD SAOOD JAN, J.--These are 30 appeals by special leave from the judgments and orders of the Lahore Higlx Court dismissing the constitution petitions as well as intra-Court appeals of the appellants. These appeals were heard together, as common questions of law arose in them.
2. The appellants are engaged in the manufacture of sugar and for the purpose of their business own sugar mills in different parts of the Punjab. They purchase sugarcane from the areas specifically assigned to them under the Sugar Factories Control Act. In their respective areas, they' have set up various collection points. These collection points fall within the territorial limits of the different Market Committees of the Province. The Market Committees concerned have called upon them to pay market fee in pursuance of the provisions of the Punjab Agricultural Produce Markets Act, 1939. In these appeals the appellants dispute their liabilit" to pay the said fee.
3. The appellants invoked the Constitutional jurisdiction of the High Court to call in question the legality of the demands made by the Market Committees. Their petitions were heard by a learned Single Judge. He dismissed their petitions by varieus orders. The main judgment was delivered in Writ Petition No,322/75. The appellants filed intra-Court appeals. These were dismissed by a Division Bench on the ground of incompetency.
4. In some of the appeals, namely, C.As. Nos. 249, 250, 251, 255, 256, 259 and 266 of 1979, the order of the Division Bench dismissing the intra-Court appeals on the ground of competency alone has been challenged. In C.As. Nos. 261, 262, 263, 264, 265, 268, 269, 270 and 271, all of 1979 and C.As. Nos.
234, 235, 236 and 237, all of 1986, the correctness of the judgments of both the learned Single Judge and the Division Bench has been contested. Rest of the appeals have been preferred frdm the judgment of the learned Single Judge.
5. Civil Appeals Nos. 252, 253, 254, 257, 258, 260, 261, 262, 263, 264, 265, 267, 268, 269, 270 and 271, all of 1979, and C.As. Nos. 234, 235, 236 and 237, all of 1986 are barred by time. Learned counsel appearing for the appellants have prayed for the condonation of the delay. Considering that the questions raised in these appeals are of public importance and these very questions also rise in some of the appeals which are within limitation, we would condone the delay.
6. The first question that needs to be considered is whether the intra-Court appeals were rightly dismissed by the Division Bench on the around of competency. It is to be noticed that some of the appeals before us arise out of Constitution petitions which were filed in the High Court before the Law Reforms Ordinance came into force. The said Ordinance abolished letters patent appeals.
However, the Ordinance was subsequently amended by the Law Reforms (Amendment) Act. It created a right of appeal (called the intra-Court appeal) from an order made by a Single Judge in exercise of the Constitutional jurisdiction to. Benches of two or more Judges in the High Court with the rider that the appeal would not be available or competent if the order brought under judicial review before the Single Judge arose out of proceedings in which the law applicable provided for at least, inter alia, an appeal to the departmental authorities. Admittedly, the appellants did have a departmental right of appeal against the demands made by the market committees and some of them even availed of it. In view of this position, the Division Bench took the view that the intra-Court appeals filed before it were rot competent cs they were hit by the aforementioned rider. On behalf of the appellants it is contended that the provisions of Law Reforms Ordinance as well as of the Law Reforms (Amendment) Act which abolished the Letters Patent Appeals or introduced a restricted' right of intra-Court appeal were not retrospective in operation, so as to affect the right of appeal which accrued to them as soon as they filed the writ petitions in the High Court. A similar plea was raised in this Court in Jafar Khan v. Ghulam Sarwar (C.A. No,16-P of 1986) and rejected. The Court observed:- "It is true that a right of appeal is a substantive right and it vests in a litigant as soon as the litigation is initiated and that in the absence of any express provision or necessary intendment a statute is not to be construed in a manner which would affect substantive rights. We have therefore to see whether by mere omission of clause 10 of the Letters Patents the Ordinance had intended to abolish the Letters Patent Appeals in respect of the pending litigations as well. In this context the provisio to section 3 as originally drafted and subsection (3) of substituted Section 3 need examination. It will be noticed that in both these provisions the Ordinance saved the Letters Patent Appeals which were already pending before the Ordinance came into force. By making an express provision with regard to the pending Letters Patent Appeals, the Ordinance clearly indicated that no Letters Patent Appeal was to be filed in future even in respect of litigation which had started before its promulgation. If the omission of clause 10, ibid, was not intended to affect the pending litigation, there was no need whatsoever to make a specific provision in respect of the Letters Patent Appeal which had already been filed-, The reliance of the learned counsel for the appellants on the decision of this Court in the Pakistan International Airlines Corporation v . Paak Saf Dry Cleaners, ibid, is misplaced, for in this case the foundation of the right of appeal was not clause 10 of the Letters Patent but Section 39 of the Arbitration Act. That being the position, we would repel the contention of the learned counsel that he had the right to file a Letters Patent Appeal even after the Ordinance came into force just for the reason that the suit out of which it arose had been instituted prior to promulgation of the Ordinance."
' We see no reason to take a different view in the matter. The Division Bench was therefore right in, not entertaining the intra-Court appeals of the appellants.
7. To examine the liability of the appellants to pay market fee, it would be convenient to take notice of the relevant provisions of the Punjab Agricultural Produce Markets Act, 1939. It may be mentioned that this Act has since been repealed and replaced by the Punjab Agricultural Produce Markets Ordinance, 1-978. However, that may be, the Act was passed with the object, as its preamble stated, to provide for the better regulation of the purchase and sale of agricultural produce in the Punjab and for that purpose to establish markets and make rules for their proper administration., ,In section 2(a) the expression 'agricultural produce' was defined. It is unnecessary to set out the definition in extenso; ,suffice it to say that it included sugarcane as well. Section 4(1) enabled the Provincial. Government, after hearing public objections and suggestions, to declare certain areas wherein it was intended to exercise control over the purchase and sale of agricultural produce, to be notified market: areas. Section 4(2), inter alia, stated that after a notification specifying certain localities as notified market areas had been issued, no person would purchase or sell any agriculutral produce therein without a license granted in accordance with the provisions of the Act, rules or by-laws made thereunder. This embargo, however, did not extend to a grower who wished to sell either himself or through a bona fide agent his own agricultural produce or agricultural produce of his tenant or to a person who purchased agricultural produce for his private use.
8. Section 7 required the Provincial Government to set up a market committee for every market area in respect of which a notification had been issued under section 4(1). Section 8 set out the composition of the market committees. Section 9 laid down the duties of the' market committees; thus, a market committee was required to establish markets with facilities for persons visiting them in connection with the purchase, sale, storage, weighing, pressing and processing of agricultural produce. It was also to issue licences to brokers, weighmen, measurers, surveyors, warehousemen, changers, palladars etc. For carrying on their occupations in the notified market- areas.
9. Section 19 empowered the market committees to levy fees on the agricultural produce bought or sold by licensees in the notified market areas. Section 20 provided for the constitution of a Market Committee Fund. The fees levied under section 19 together with all other moneys received by a market committee were to form part of that Fund. Section 21 detailed the purposes for which the Fund could be expended. The purposes included maintenance and improvement of the markets, the provision and maintenance of standard weights and measures, the collection and dissemination of information regarding all matters relating to the crop statistics and marketing in respect of agricultural produce and propaganda in favour of agricultural improvement and thrift.
Section 27 empowered the Provincial Government to make rules for carrying out the purposes of the Act.
10. The legal sanction behind the fees demanded by the market committees- from the appellants is section 19 of the Punjab Agricultural Produce Markets Act. This section reads as follows:- "The market committee may, subject to such rules as may be made by the Government in this behalf, levy fees on the agricultural produce bought or sold by licensees in the notified market areas and the Government 'shall make rules specifying the maximum rates of the said fees* * * * * * * * * ** * * * * * * * * * * * * * * * * * * * ' It will be noticed that under this section the fee is payable only by licensees. It is not in dispute that the sugar mills of the appellants as well as the collection points for the purchase of sugarcane fall within the notified market areas. Some of the appellants have obtained licences from the market committees but many of them had not. However, that would not make any difference, for, any one who is under an obligation to obtain a licence in pursuance of the provisions of the Act, but has not done so, cannot evade-his liability to pay the D market fee for in that event he would be taking advantage of his own illegal omission. In, this context, reference may also be made to the second proviso to Rule 29(2) of the Agricultural Produce Markets Rules, 1940, which states that all buyers and sellers whether they have obtained licences or not are to be treated as licensees. Although in the High Court an argument was raised that only such of the owners of sugar mills who had obtained licences were liable, to pay market fee, it was not pressed before us.
11. The obligation to obtain a licence has been created by section E 4(2) of the Punjab Agricultural Produce Markets Act. It reads as follow s : - "After the date of issue of such notification or from such later date as may be specified therein, no person unless exempted by rules framed under this Act, shall either for himself or on behalf of another person, or of the Crown within the notified market area set up, establish or continue or allow to be continued any place for the purchase and sale of the agricultural produce so notified, or purchase or sell such agricultural produce except under a licence granted in accordance with the provisions of this Act, the rules and bylaws made thereunder and the conditions specified in the licence: ' Provided that a licence shall not be required by a grower who sells himself or through a bona fide agent his own agricultural produce or the agricultural produce of his tenants on their behalf or by a person who purchases any agricultural produce for his private use."
' The words which need examination in the appeals before us have been underlined. A plain reading of this subsection will indicate that it prohibits purchase or sale of agricultural produce within a notified market area without a licence obtained in accordance with the provisions of the Act, rules and by-laws. On the face of it, the appellants who buy fairly large quantities of sugarcane appear to be falling in the category of persons who are required to obtain licences in accordance with the provision of the subsection.
12. Mr. S.M. Zafar who appeared on behalf of the appellants in most of the appeals, argued that the word "or" in the phrase purchase or sell as occurring in the subsection should be read in the conjunctive sense so that the obligation to obtain a licence was enforcible only against a person who both purchased and sold agricultural produce and not against one who took part only in "one-end" transaction, that is, a person who merely purchased or merely sold agricultural produce.
In support of his contention, he drew our attention to the definition of the words 'market' and 'dealer' as given in the Act. 'Section 2(d) of the Act defined the word 'market' as follows:- "Market" means a building, block of buildings, enclosure, or other area which may be so notified in accordance with the rules made under this Act.
' Section 2(aa) defined the word 'dealer' in the following terms:- "Dealer" means any person who within the notified market area sets up, establishes or continues or allows to be continued any place for the purchase or sale of agricultural produce notified under subsection (1) of section 4 or purchases or sells, such agricultural produce.
' Mr. Zafar pointed out that as the word was ordinarily understood, a dealer was a person who engaged himself in 'two-ends'' transaction, that is, he not only purchased but also sold commodities; one who merely purhcased or merely sold commodities could hardly be described as a dealer. Even though he argued, in the -definition of the word 'dealer' the word- "or" intervened between the words 'purchase' and 'sells' the whole phrase had to be construed in conjunctive sense so that persons who could not be described as dealers were not artificially regarded as such. He further contended that in interpreting the similar phrase, that is, 'purchase or sell' as occurring in Section 4(2) the same consideration should be kept in mind so that the obligation of obtaining a licence should not be extended to persons who could not legitimately be regarded as dealers. Since the appellants merely purchased sugarcane for use in their sugar mills and did not sell it, they could not be treated as dealers.
13. It is difficult to accept the contention of Mr. S.M.Zafar. The argument that the word 'dealer' as defined in the Act encompasses only such persons who take part in 'two-ends' transaction and not those who either purchase or sell agricultural produce can only be, accepted if a restricted construction is put on the definition which the Legislature has chosen to give to the said word. No doubt, there is authority for the view that in order to effectuate the obvious intention of the Legislature, the word 'or' may be construed in the sense of the word 'and' but then we can find no justification for doing so here. If in interpreting the Act, the word 'dealer' was to be understood in the sense in which it is used in common parlance, there was hardly any need for the Legislature to define it. However that may be, on a plain reading of section 4(2) there is no reason why the requirement of obtaining licence should be confined to only those who both purchase and sell agricultural produce or to exclude from its ambit such ',persons who merely take part in 'one-end' transactions. In fact the proviso which the Legislature has added to the Section militates against construing the word "or" in the conjunctive sense. If the said word was intended to mean 'and' to create an obligation to obtain licence against only .Those who engaged themselves in 'two-end' transactions, it was unnecessary to exclude by a specific ;G provision such growers who sold their own or their tenants' produce or such persons who purchased agricultural produce for their private use. It hardly need to be added that persons falling in this category are involved only, to use. Mr. Zafar's own term, in 'one-end' transactions, and on his interpretation of the expression 'purchase or sell', they would have been in any case excluded and it was otiose to make a special provision in their case in order to take them out of the operation of the Section.
14. An argument was also raised that a market, as defined in section 2(d), was a building or block of buildings, enclosure or a similarly confined premises; if in the expression "notified market area" the word "market" was understood in the sense in which it had been defined, the requirement of obtaining a licence created by section 4(2) would be restricted to those alone who purchased or sold agricultural produce in the building or block of buildings or enclosure, or a similarly confined premises notified for that purpose. This contention is again without any merit. The expression "notified market, area" has also been defined by the Act in clause (e) of Section 2. According to this clause, the 'notified market area' means any area notified under section 4. A perusal of sections 3, 4 and 9 of the Act and a comparison of the definition of the words "market" and "notified market area" leave no room for doubt that the said two words have different connotations altogether. A notified market area is comparatively of a much wider expanse in which a market as defined in the Act may be set up. Therefore, it is not right to qualify the expression 'notified market area' as occurring in section 4 (2) by reading into it the definition of the word 'market'.
15. It was then contended by Mr. Zafar that the appellants were covered by the proviso to section 4(2) which exempted purchasers of agricultural produce for private use from the requirement of obtaining a licence. He stated that as the appellants purchased the' sugarcane for their own use to manufacture sugar, they were entitled to take advantage of the said proviso. This contention was also raised before the learned Single 4udge who rejected it with the observations: - "Even otherwise the fact that the petitioner used the sugarcane purchased by him for manufacturing or extracting sugar out of it rather goes to show that the purchase was not for a private use but for doing a commercial business."
' The observation of the learned Judge, with which we agree, effectively disposed of the contention of Mr.Zafar.
16. Mr. Ijaz Batalvi, who appeared for the appellants in C.As. Nos. 268 to 271, .Stated that the sugar manufacturing industry was strictly controlled by the Governmept under the provisions of the Sugar Factories Control Act, No,XXII of 1950. Thus, in pursuance of the provisions of this Act, the sugar mills were required to purchase sugarcane from the areas reserved for them and the Government was competent to fix the minimum price of the sugarcane. Besides, there were strict regulations with regard to weighing of sugarcane, setting up of purchase centres and the time schedule for payment of price to the growers. The Sugar Factories Control Act and the rules framed thereunder were a complete code in themselves dealing with the marketing of sugarcane and regulating the relations between the growers and the mills. The market committees set up under the Agricultural Produce Markets Act were completely excluded from exercising control or otherwise interfering with the said relationship. Since the Sugar Factories Control Act was a special law, it overrode and completely eclipsed the Agricultural Produce Markets Act. Apart from that, the market committees did not provide any services to the mills and the growers of sugarcane; they could not therefore demand fee from the sugar manufacturers.
17. It is not possible to subscribe to the contention of Mr.Ijaz Batalvi. It is no doubt true that the Sugar Factories Control Act and the rules framed thereunder do control the relations between the mills and the growers of sugarcane with regard to the sale, price and, to some extent, quality of sugarcane but this control is of a limited nature and touches only a part of the sphere of activity of a market committee. Under the Punjab Agricultural Produce Markets Act, there are numerous other services which a market committee is required to render in a notified market area and from these services not only the agriculturists but also those engaged in agro-industries undoubtedly draw benefit. For example, as required by Section 21 of the Act, the market committees collect and disseminate information relating to crop statistics and carry out propagandas in favour of agricultural improvement and thrift. A number of brochures issued by different market committees in discharge of this statutory function have been placed before us. These brochures offer suggestions about the improved methods of cultivation of sugarcane. They also contain information with regard to the use of fertilizer and pesticides, appropriate times of watering and harvesting of the sugarcane crop and, merits and demrits of different types of seeds. Getting these brochures prepared from experts costs money. Apart from that, the market committees hold competitions among growers and give cash award to those who achieve the best results both qualitatively and quantitatively. It need hardly be added that the ultimate beneficiaries of these services are the agro-industries. It may also be mentioned that some market committees provide facilities for the cart, truck and trolley drivers at the purchasing centres set up by the sugar It is therefore not correct on the part of the learned counsel to contend that the services performed' by the market committees do not benefit the sugar mills and for that reason the latter are not liable to pay the market fee or that as the relations between the growers of sugarcane and the mills are controlled by the Sugar Factories Control Act, the market committees have no contribution to make in . The sugar manufacturing business. The contention that the Punjab Agricultural Produce Markets Act stands eclipsed by the Sugar Factories Control Act, is untenable for their, fields of operation, as pointed out above, do not coincide.
18. It was next contended by Raja Muhammad Akram who also appeared on behalf of some of the appellants that since the demand made by the market committees was in the nature of a fee and not a tax, it had to bear some proportion to the quantum of services provided by the market committees to the sugar mills. In this context, he referred to the decision of the Indian Supreme Court in Om Parkash v. Gird Raj Kishori (AIR 1986 SC 726) where while distinguishing a tax from a fee, the Court pointed out that the fee was a charge for a special service rendered to the individual by some Government agency and that it was a sort of return or consideration for the services provided end, for that reason it should be co-related to the expenses incurred in rendering thereof.
He also referred to the decision of this Court reported as Small Town Committee v. Firm Muhammd Sadiq Barkat Ali (PLD 1960 SC 394) where it was observed that when a market committee levies a fee the object should not be self-aggrandisement or self-enrichment but that the fee demanded should be proportionate to the services performed.
19. There can be no cavil with the proposition that a tax and a fee are two different juristic expressions. Broadly speaking, a tax is a pecuniary burden laid upon individuals or property to support the Government whereas a fee is a charge for special services rendered to individual by some Government agency. But, then, as pointed out by this Court in Muhammad Ismail and Company v. Chief Cotton, Inspector (PLD 1966 SC 388), no hard and fast rule can be laid which could serve to distinguish a, tax from a fee and that in every case the question arising has to be decided on the basis of special facts and circumstances of that case. Here, as already mentioned, the Punjab Agricultural Produce Markets Act which authorises the collection of the market' fee has created a fund. All fees realised by a market committee are to be credited to that fund. They do not form part of the general revenues of the province. The Act in Section 21 details the purposes for - which alone the fund can be expended. A perusal of this section leaves no room for doubt that the money forming part of the fund is to be spent in promoting and improving marketing of agriculture and agricultural produce and incidental administrative expenditure. As regards the contention that the fee K levied should be commensurate with the quantum of services provided, none of the appellants has cared to place any, data before us which might indicate that the market committees were charging fee at a rate much beyond their legitimate requirements or out of proportion to the services rendered by them in their respective areas. We have therefore no hesitation in repelling the contention of the learned counsel.
20. For the reasons stated above, we find no merit in these appeals which are hereby dismissed with costs.