JUDGMENTIRSHAD HASAN KHAN, J.-- The dispute in this case relates to the constitution and establishment of the Market Committee at Kot Lakhpat and the constitution of its members.
2. The grievance of the petitioners is that the Governor of Punjab issued the impugned notification dated 26.11.1977 for the establishment of Market Committee at Kot Lakhpat in the purported exercise of powers conferred on him under Sections 7 & 8 of the Agricultural Produce Markets Act, 1939 read with Section 4 of the Punjab Local Government Act (No.XXXIV of 1975, (hereinafter called the Act) and the provisions of the General Clauses Act, 1958, notwithstanding the fact that the Agricultural Produce Market Act, 1939 already stood repealed before issuance of the impugned notification am1 Section 4 of the Act, merely saves the actions already taken under die repealed Act of 1939, but does not confer any power on the Governor to issue any fresh order under the repealed provisions.
3. There is no cavil with the proposition advanced by learned counsel for the petitioner that after the repeal of the Agricultural Procduce Market Act, 1939, the impugned notification could not- be issued under the repealed provisions.The impugned notification dated 26.11.1977 notifying the market area ought to have been issued in accordance with the provisions of Sections 156 to 163 of the Act, which was assented to on 3.4.1975 and came into force from that date. The provisions for the issuance of notification of the market area are contained in Section 157 of the Act, as then in force, which provides that the Deputy Commissioner, shall, on the recommendation of the Zila Council notify the market area for a farm market in the prescribed manner. In the instant case, a bare perusal of the said impugned notification would show that no recommendations were obtained from the Zila Council before notifying the market area.
4. Be that as it may, the market area was notified in 1977. I would, therefore, exercise judicial restraint to set aside the impugned notification after a lapse of twelve years and also for the reason that the petitioners have not seriously challenged the establishment of the market area.
Their main grievance is with regard to the constitution of the members of the Market Committee.
Additionally, Sections 156 to 163 of the Act were repealed by virtue of Sections 39 of the Punjab Agricultural Markets Ordinance (No.XXIII of 1978)(hereinafter called the Ordinance) and the establishment of the market area is also saved by the doctrine of past and closed transaction.
5. As to the grievance of the petitioners regarding the composition of the Market Committee, suffice it to say that the Market Committee under the impugned notification dated 26.11.1977 was established as stop-gap arrangement till their constitution under Section 8 of the Ordinance, as amended. This being so, the grievance relating to the constitution of the Market Committee under the aforesaid notification has become infructuous, inasmuch as, the Market Committee was eventually established in 1980,1984 and recently on 1.6.1988. When confronted with this situation, Mr. A.W.Butt, learned counsel for the petitioners vehemently contended that the notification dated 1.6.1988 regarding appointment of members of the Market Committee insofar as it relates to Kot Lakhpat are ultra vires of Section 8 of the Ordinance read with Rule 9 of the Punjab Agricultural Produce Markets (General) Rules, 1979, inasmuch as, under sub-rule (3) of Rule 9, as amended, the Deputy Commissioner/ Zila Council, as the case may be, ought to have consulted in writing the Extra Assistant Director Agriculture(Economics amd Marketing) and also the associations of growers consumers and licencees, if any, existing within the market area for obtaining the names and their panel was to be formed for the selection of the members of the Market Committee, but it was not done. It was further agrued that the Market Committee of Kot Lakhpat has been upgraded as Class 'A' Committee on 3.6.1986 and, therefore, its numerical strength should have been fixed as seventeen instead of ten.
6. The contention is devoid of any force, inasmuchas subsection^) of Section 8 of the Ordinance provides that a Market Committee shall consist of ten or seventeen members as Government may in each case determine. It is nowhere laid down in the said Ordinance or the Rules framed thereunder that the composition of 'A' Class Market Committee shall be of seventeen members.
Section 8(1) ibid itself says that the matter of composition is to be determined by the Government in each case. Mr Liaquat A.I, Agricultural Officer(Economics and Marketing),Lahore, who is present in Court along with record of the case,has also made a statement that no notification has been issued by the Government that the Kot Lakhpat Market Committee shall consist of seventeen members.
7. The grievance of the petitioner that the associations of growers, consumers and licencees were not consulted before constitution of the Market Committee as contemplated by Rule 9(3) ibid is not supported by record of the Zila Council, which shows that the relevant authorities mentioned in the aforesaid rules were duly consulted and they sent their recommendations to the Zila Council. The Anjuman Sarfeen, District Lahore, submitted their recommendations on 7.4.1988,The Anjuman Sarfeen, Kot Lakhpat, Lahore, on 7.4.1988, The Kisan Board on 18.4.1988, The Association of Growers on 8.4.1988, the Aiwan-i-Zaraat, Punjab, the Anjuman Tajran, Lahoare on 10.4.1988 and The Anjuman Arhtian, Ghalla Mandi, Kahnna Nau, District Lahore on 11.4.1988. In any event, this disputed question of fact cannot be examined in writ jurisdiction.
8. It is next contended by Mr. A.W. Butt that Mian Muhammad Ashfaq son of Mian Bagh A.I resident of Sadoke, Tehsil Cantt. Lahore, has been unauthorisedly selected as a member of the Market Committee of Kot Lakhpat, Lahore, inasmuch as, he is an Advocate and not a grower. The answer to this question turns upon the definition of the term "grower", which is defined in Section 2(g) of the Ordinance as follows:- "Grower" means a person who by himself or through tenants or otherwise grows,rears,produces, manufactures or processes agricultural produce but shall not include a person,other than a member of a society registered under the Co-operative Societies Act,1912,who works as a dealer or broker either individually or as a partner of a firm of dealers or brokers or is otherwise engaged in the business of disposal, storgae or processing of agricultural produce."
A bare perusal of the aforesaid definition would show that a grower is a person, who by himself or through tenants or otherwise grows, rears, produces, manufactures or processes agricultural produce, except a person who is a member of a Co-operative Society, is a dealer or broker either individually or as a partner of such "firm or doing the business of disposal storage- or processing of agricultural produce. In the instant case, Mian Muhammad Ashfaq, who admittedly is an Advocate, has made a statement that he has seventy acres of agricultural land at Mauza Sadoke and Haloke.
This is also borne out from the record of the Zila Council which has been perused by this Court. His name has also been recommended by the Anjuman Kashtkaran and the Aiwan-i-Zaraat Punjab, the associations of growers. He is not converted by any disqualification as specified in Section 2(g) ibid. The mere fact that he is an Advocate would not by itself disentitle him to become a grower if he fulfils the conditions precedent laid down in section 2(g) of the Ordinance, which Mian Muhammad Ashfaq duly fulfils. It is, therefore, difficult to hold that Mian Muhammad Ashfaq is not a 'grower' as defined in the Ordinance. No other point has been urged during the course of arguments by learned counsel for the petitioner.
In view of the above, the writ petition fails and is hereby dismissed with costs.