' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 calls in question the notification issued by the Secretary to the Government of Punjab Agricultural Department on 27th July, 1989 whereby while purporting to act under section 33 of the Punjab Agricultural Produce Markets Ordinance, 1978 it was directed that the members of the Market Committee, Gujranwala shall cease functioning under the enactment with immediate effect and pending the constitution of the Market Committee, Mr. Ghulam Mustafa Cheema shall act as Administrator.
2. The Market Committee, Gujranwala was constituted on 19th July, 1987 by the Government of Punjab under the Punjab Agricultural Produce Markets Ordinance (XXIII of 1978) for a period of three years, It comprises of 18 Members out of whom petitioner No,1 Mian Tajammal Hussain was elected as Chairman on 12th September, 1987. According to the petitioners the committee was performing its functions in accordance with law when on 27th July, 1989 the impugned order was passed which had the effect of virtually superseding the committee.
' In this constitutional petition, the notification has been impugned on various grounds inter alia that the exercise of power was mala fide; that no notice or opportunity of being heard was granted to the petitioners; that though the order purports to be under section 33 of the Ordinance but its effect is that which is contemplated by section 28 of the Ordinance and also that the order was not justified on merits.
3. In the report and parawise comments filed by the respondents it has been stated that the impugned action has been taken on account of various irregularities committed by the Chairman and the Market Committee which was not functioning in accordance with the provisions of the Ordinance and there was sufficient material available with the Government on the basis of which it was satisfied that the action as contemplated by section 33 of the Ordinance was called for. It has also been stated in the report and parawise comments that the Government has superseded the Market Committee in view of serious complaints against the committee and Chairman.
4. Mr. Karamat Nazir Bhandari, the learned counsel for the petitioners contended that the order has been passed in colorable exercise of jurisdiction and is not sustainable. It was submitted that in fact the Government had superseded the market committee but the order has hen deliberately disguised in the manner so as to show that it has been passed under section 33 of the Ordinance with a view to obviate the rigors of section 28 which provides for suspension but only for reasons specified therein and that too after providing an opportunity of being heard to its members, ' Mr. M.Saeed Baig, Advocate who appeared on behalf of the respondent however, submitted that the market committee has not been superseded but only a direction as contemplated by section 33 of the Ordinance has been issued ordering the members to cease functioning.
5. A reference to various provisions of Punjab Agricultural Produce Markets Ordinance Act, 1978 would show that the Government has been vested with disciplinary powers to cater for different situations. Section 11 of the Ordinance authorizes the Government to remove any member if he is guilty of misconduct, negligence or was not qualified for being appointed as member. Under section 27 the Government has the power to annul the proceedings of market committee. Section 28 of the Ordinance empowers the Government to supersede the committee if it is of the opinion that it is incompetent to perform or persistently makes default in performing the duties imposed on it by or under the Ordinance or abuses its poweRs, This order can however be passed only after allowing a reasonable opportunity to the market committee for showing cause against the proposed supersession. The effect of supersession has been provided in subsection (2) thereof. The next provision which is relevant for the present purposes is section 33 of the Ordinance which provides that if at any time the Government is satisfied that situation has arisen in which the purposes of this Ordinance cannot be carried out in accordance with the provisions of the Ordinance, the Government may by notification declare that the functions of the market committee, to such extent as it may be specified, he exercised by the Government or by such person as it may direct and further that Government may assume to itself all or any of the powers vested in or exercisable by the market committee.
6. From the above analysis it becomes clear that the scope of section 33 of the Ordinance is different from that of section 28 of the Ordinance. In the present case though the order purports to have been passed under section 33 of the Ordinance but taking into consideration the consequences and effect flowing therefrom, there can be no manner of doubt that what was sought to be achieved by the respondent was the complete doing away with the committee itself.
Though the language used in the notification appears to be rather vague and confused, but if it is read in the light of the comments, it becomes abundantly clear that the action was treated by the Government itself as supersession of the Committee. The notification in question directs that the members shall cease functioning under the enactment with immediate effect but the period of such cessation has not been specified and it thus appears that the cessation was to enure indefinitely. In the last para of the notification while appointing the Administrator it has been stated that this appointment shall remain in force till the constitution of the market committee. In the parawise comments as also the report which is signed by respondent No, 1 it has been specifically mentioned that the Government of Punjab had by the impugned notification superseded the market committee. Such an action is clearly not within the contemplation of section 33 of the Ordinance which empowers the Government to take over the functioning of the committee to a specified extent but does not provide for the suspension or supersession of the committee or cessation of membership. If an action is taken under section 33 of the Ordinance, the question of reconstitution of the committee does not arise for the committee as the committee already formed continues to exist. The impugned action is, therefore, clearly outside the purview of the section 33 and is of no legal effect. It is also to be noticed that it is not the case of the respondents that after passing the order under section 33, some further steps, except the reconstitution of Committee are being taken.
7. There can be no denying the fact that supersession of a market committee can be ordered by the Government provided the conditions specified in section 28 existed and an opportunity of showing cause against the proposed action is afforded to the committee. Admittedly, in the present case no such opportunity was allowed to the committee or its members, It was however contended by the respondents that as the petitioners were aware of the enquiry being conducted against them no separate notice was required to be given in this behalf. This contention is without any merit. Section 28 by its very wording requires that once on the basis of information available with the Government it is proposed to supersede the committee, an opportunity has to be afforded to the market committee to show cause against the proposed action. Furthermore, such an opportunity has to he provided by the person competent to pass the order in terms of section 28.
Consequently the hearing by an Enquiry Officer would not suffice to meet the requirement of section 28 of the Ordinance.
It was next contended that since an emergent action was required to be taken, it was not necessary to grant such an opportunity to the effected persons. There is no merit in this submission also. Though it is correct that in cases which are urgent in nature, the prior notice and hearing can be dispensed with but, in that case ex post facto hearing must be provided and the emergency must also be shown to exist. Reference in this connection may be made to Saiyyid Abul A'la Maudoodi, etc. v. The Government of West Pakistan etc. (PLD 1964 SC 673). In the present case neither any emergency of that nature has been shown to exist nor any ex post facto hearing has been provided. In this view of the matter the impugned order is not sustainable.
' For the foregoing reasons this petition is accepted and the impugned order is declared to be without lawful authority and of no legal effect.