1. ' MUHAMMAD AFZAL ZULLAH, C J.---These appeals through leave of the Court are directed against various judgments of the Lahore High Court, whereby the so-called clash between the provisions of Punjab Agricultural Produce Market Ordinance, XXIII of 1978 and the Punjab Local Government Ordinance VI of 1979, was sought to be removed.
2. ' The basic judgment which was followed in the other matters was rendered in the case out of which CA. 619 of 1988 has arisen. It is reported as Muhammad Ghias v. Market Committee, Kamalia PLD 1982 Lah.
710. The learned Judge deciding the case out of which Civil Appeal No,388 of 1986 has arisen, in addition to following the rule laid down in Muhammad Ghias's case also considered some more points argued before him. In the remaining two matters, the decision in the case of Muhammad Ghias was followed without any further addition of reasoning. The leave was granted by this Court in CA.388 with the following order:- "The petitioner has established a `Sabzi' and 'Ghana' Mandi on the land acquired for the purpose in the town of Khudian. Admittedly the Mandis are functioning.
3. ' The respondent by a resolution dated 14-9-1985 also decided to establish Sabzi Mandi at Khudian.
4. This action of the respondent was first unsuccessfully objected to by the petitioner through letters and subsequently a writ petition was filed in the High Court seeking quashment of the respondent's resolution dated 14-9-1985. The said petition was, however, dismissed by the High Court as per impugned judgment.
5. The dispute in this petition turns on the question of interpretation of section 101 of the Punjab Local Government Ordinance, 1979 and section 4(3) of the Punjab Agricultural Produce Markets Ordinance, 1978 and the matter requires examination. Leave is accordingly granted."
6. In the other three appeals leave to appeal was granted mainly because of the fact that leave had already been granted in C.A. 388 of 1986.
7. ' Conflict of the two laws, it seems, has been brought out more vividly in the brief introductory part of the impugned judgment in Civil Appeal No,388 of 1986. It reads as follows:-- "The Market Committee, Khudian has established a `Sabzi' and `Ghalla' Mandi which is reportedly functioning. On the other hand the Town Committee, Khudian has also passed Resolution No,4 dated 14-9-1985, for establishing fruit and vegetable market. Through the instant writ petition, this resolution is sought to be declared as without lawful authority.
8. ' Since the provisions of the Punjab Agricultural Produce Markets Ordinance, 1978, and the Punjab Local Councils Ordinance, 1979 relating to the establishment of markets for the sale of articles of fruit and drinks overlaps the learned Advocate-General was asked to obtain instructions from the Provincial Government and assist the Bench. He has placed before me the Punjab Government's Local Government and. Rural Development Department's letter No,SOV-3-18/85 dated 3-2-1986 which runs as under:-- ' Establishment of public markets is one of the optional functions of the Urban Local Councils under the Local Government Ordinance, 1979. The provisions of Local Government Ordinance, have to take effect notwithstanding any thing inconsistent therewith contained in any other law in view of the section 4 thereof. Therefore, the Town Committee is competent to establish and manage markets within its limits under the provisions of the above Ordinance and the Market Committee is ousted from this function within the limits of Town Committee."
9. ' In Appeal No,619 of 1988 the facts as noted in the impugned judgment are that the respondents therein "purchased in open auction the leasehold rights of certain shops in the Vegetable Market of Municipal Committee, Kamalia (respondent No,2) for a period of 5 years uptil 31st December, 1983.
10. In 1980 (the Market Committee, Kamalia) respondent No,1 also established a parallel market but it could *not work profitably because of the competition offered by the market of respondent No,2. A dispute, therefore, arose between the respondent No,1 and respondent No,2...." In that case the Municipal Committee had at initial stage adopted the following position: "The learned counsel for respondent No,2 made a statement that the vegetable market was being run under the supervision of the Market Committee and that the shops were being let out to various private persons. He further conceded that any one who wishes to sell vegetables within the area of the Market Committee, must obtain a licence from the said Committee as provided by section 4(3) of the Punjab Agriculture Produce Markets Ordinance, 1978 and violation thereof would attract prosecution under the penal provisions of the said Ordinance.
11. ' Accordingly, it was thought that Municipal Committee had no right to set up a parallel market or authorise any of its lessees to sell vegetables or any other agriculture produce violation of the provisions of the [Punjab Agricultural Produce] Market Ordinance, 1978.
12. ' In the third appeal; namely, 732 of 1988 the respondents therein are the Beef Sellers of Kamalia Town. They received a notice from Market Committee, Kamalia asking them to provide certain information regarding their profession and to obtain licences from the Market Committee for dealing in Beef. They instead of obtaining licence filed petition in the High Court with the plea that the Market Committee had nothing to do with their business--instead it was controlled by the Town Committee under the Punjab Local Government Ordinance, 1979. The said case was also decided with reference to the decision in the case of Muhammad Ghias.
13. ' The other Appeal No,733, the dispute had arisen between the Market Committee, Shorkot (appellant) and the Town Committee, Shorkot (respondent). In the said appeal the only other party is the Deputy Commissioner, Jhang (respondent).
14. ' The dispute having arisen between the two Committees on the controversy as has been noted earlier the Market Committee filed a suit seeking declaration, and injunction against the respondent Town Committee and the Deputy Commissioner. The grievance was that by a resolution the Market Committee wanted to recover fee which was within the sphere of operation of the plaintiff and was already being recovered as. Market fee. The suit was resisted by both the defendants. It having been dismissed the Market Committee lost it in first appeal before the District Court because in the meanwhile a Division Bench of the High Court had rendered the earlier mentioned judgment in the case of Muhammad Ghias. The High Court dismissed the Civil Revision of the Market Committee whereupon leave to appeal was granted by this Court on the basis of the orders already passed in Civil Appeal No,388 of 1986.
15. ' The High Court has held in the case of Muhammad Ghias that the salient functions of two statutory bodies constituted under Market Ordinance and Local Government Ordinance placed in juxtaposition, show both enactments to have conflicting parallel provisions and they were not capable of being administered by the two bodies contemporaneously. Thus, there being a conflict to be resolved and the Punjab Local Government Ordinance, 1979 having been enacted on later date and further because of non obstante provision contained therein, would prevail upon the other law of earlier date; namely, Market Ordinance, 1978. It was further held that the Markets established by the Committees under the Local Government Ordinance for purpose of sale and purchase of articles of food had to be exclusively controlled by the Town and Municipal Committees and further that the Market Committee cannot exercise any control over the persons carrying on business within the limits of the Municipal/Town Committees. In the case of Market Committee, Khudian an additional argument advanced from the appellant's side to the effect that a notification issued under the law relating to the Market Committees, which made the activity of a Municipal Committee as subject to the control of a Market Committee, was dealt with as follows:-- "Dealing with the notification aforesaid now, I find that the Punjab Local Government Act, 1975, under which it was found to have been issued, has been expressly repealed by the Punjab Local Government Ordinance, 1979. It, therefore, does not survive, particularly when section 101 of the later Ordinance specifically empowers an Urban Local Council to establish markets, and approval of the site by the Punjab Government, has not been made as a condition precedent for such establishment. The notification thus, is not consistent with the provisions governing the establishment of Markets under the Punjab Local Government Ordinance, 1979."
16. ' The relevant provisions of the two laws which have been brought under discussion and the aforementioned notification are reproduced below:- "Punjab Agricultural Produce Markets Ordinance, 1978:- - S.4(3) After the date of issue of such notification and on the establishment of market committee under section 7, no local authority, notwithstanding anything contained in any other law entitling such local authority to establish a market, and no person for himself or on behalf of another person unless exempted by rules framed under this Ordinance, shall, within the notified market area, set up, establish or use any place for the purpose or sale of the agricultural produce or purchase, sell, store or process such agricultural produce except under and in accordance with the terms and conditions of a licence granted under the provisions of this Ordinance.
17. Punjab Local Government Ordinance. 1979:--- Section 101.--(1) An. Urban local council may establish and maintain public markets or may provide places for use as public markets, for the sale of articles of food and drink and of animals and secure the proper management and sanitation of such markets.
(2) An urban local council may in respect of public market, provide by bye-laws:--
(a) the fees to be charged for the use of or right to expose goods in the market;
(b) the fees to be levied on vehicles and animals bringing goods therein for sale;
(c) the fees to be charged for the use of shops, stalls, pens or stamps;
(d) the fees to be charged in respect of animals brought for sale or sold; and
(e) the fees to be charged from brokers, commission agents, weighmen and other persons practising their calling therein."
18. ' NOTIFICATION "The Punjab Gazette, Published by Authority, Lahore Thursday, November 20, 1975.
19. ' Government of the Punjab, ' AGRICULTURE DEPARTMENT NOTIFICATION ' The 30th July, 1975.
20. ' No,SO(S&M)-X-53/72--In exercise of the powers conferred by section 27 of the Agricultural Produce Markets Act, 1939, the ' Governor of the Punjab is pleased to make the following addition in the Agricultural Produce Market Rules, 1910, namely:-- ' After Rule 62, the following new rules shall be added namely:-- Establishment of Market: (1) No person or party shall establish a market within the Notified Market Area of any Market Committee unless the site has been approved by the Government.
(2) A person or party intending to establish a market shall apply for sanction to the Government and the market shall be established with the previous sanction of the Government.
(3) The Government may reject a site and the orders passed by the Government in this respect shall be final.
21. "Any contravention of this rule shall be punishable with a fine which may extend to fifty thousand rupees."
22. ' By order of the Governor, Majid Hassan Khan Secretary to Government of the Punjab Agriculture Department."
23. ' It is unfortunate that a very elaborate Lahore judgment on the nature, objects and purposes of the law relating to agricultural produce markets was not brought to the notice of any of the Judges who decided the cases in these four appeals. It is reported as Messrs Kohinoor Sugar Mills Ltd., Lahore v. Market Committee, Jauharabad, District Sargodha and another PLD 1976 Lah.
24. 1284. The clash in that case was between the Punjab Agricultural Produce Markets Act, 1939 and the Sugar Factories Control Act, 1950. Arguments advanced in the said case also related to implied repeal of an earlier law on the same or similar subject, by the subsequent law. It was held that there was no justifictaion to hold that the later Act will necessarily impliedly repeal the earlier Act. It depended upon various factors which may differ from case to case. This judgment was upheld by the Supreme Court in Noon Sugar Mills Ltd. v. Market Committee and others PLD 1989 SC 449. It was held again after a limited discussion as follows:-- "It is no doubt true that the Sugar Factories Control Act, 1950 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 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."
25. ' Thus it was found that while both enactments control the same subject, one of them; namely, the Punjab Agricultural Produce Markets Act dealt with a much wider field.The other namely Sugar Factories Control Act touches only a part of the sphere of activity of a Market Committee.
26. If the two laws which are under consideration in this case are put in juxtaposition as done in the case of Muhammad Ghias, it would appear that while the Market Committee law encompass a much wider field, the law relating to Local Government touched only a very limited sphere thereof.
27. The detailed comparison of the provisions of the two laws can be seen in the report of the case of Muhammad Ghias PLD 1982 Lah.
710. Accordingly, the judgment of this Court in the case of Noon Sugar Mills Ltd., which also was not brought to the notice of the learned Judges who decided these matters, would control the present controversy also and the rule of implied repeal by later Statute would not apply to this case.
28. ' There is another reason in the circumstances of the present case not to follow the rule relied upon by the High Court in these cases. The original Punjab Agricultural Market Committees Act of 1939 was repealed by the Punjab Local Government Act, 1975. The main subject of the Act, 1939 was reenacted in the Local Government Act, 1975 particularly in Chapter XVIII thereof with special heading as Market Committees. It contains sections 156 to 163. For about three years there was no independent law governing the subject of Market Committees. In 1978 the need was fell again for enacting this very special law which as held in the pre-partition Lahore case (of Market Committee, Dhab Vasti Ram AIR 1948 Lah. 260) was enacted to give protection to the growers from unscrupulous businessm en and to afford facilities to them so that they may obtain a fair price for their produce. Nearly half a century later the Supreme Court has in the case of Noon Sugar Mills upheld this view. The re-enactment was in the form of Punjab Agricultural Produce Markets Ordinance, 1978. It is highly interesting to note that section 39 of this Ordinance repealed sections 156 to 163 in Chapter XVIII of the Punjab Local Government Act, 1975. Amongst other implications it may be that the main sphere of activity of the Market Committees was taken out of the ambit of the Local Governments Act and was re-enacted into a full-fledged self-contained separate law as it had existed till 1975 when 1939 Act was repealed. The repealing provision; namely, section 39 in its subsection (2) provided comprehensive saving clause. According to it all things done under the repealed provisions shall if not inconsistent with the re-enacted law were deemed to have been done under the re-enacted law. The Local Government Ordinance, 1979 in its own turn had repealed the 1975 Local Government Act. In section 182(2) a similar saving provision is contained.
29. The combined reading of the repealing and saving provisions in the Ordinances of 1978 and 79, produces the following effect.
30. "What was done under the 1975 law relating to the Market Committees, was saved by 1978 Ordinance and adopted thereunder by section 39 thereof."
31. ' When section 182 of 1979 Ordinance was enacted the major sphere of the activity of the Market Committees had already been taken out of the sphere of the Local Government Act. Thus when section 182, the repealing and saving provision of 1979 Ordinance was being enacted the main subject relating to Market Committees had already been taken away and out of the ambit of the Local Government, 1975 Act. In this context it will be almost impossible if the effect is given to 1978 Ordinance as it being only a re-enacted law, to say that it was in reality an earlier law and that the Local Government Ordinance was a later law. Both the subjects were being re-enacted from time to time. The original law relating to Local Government was of 1911 while that relating to Market Committees was of 1939. Thus in this peculiar context of the two laws under discussion the rule of later law repealing the earlier law impliedly, would not at all be attracted.
32. ' The foregoing discussion on the question of implied repeal by a subsequent law could by itself result in the reversal of the impugned judgments in these matters. However, there is another very vital aspect of the case which needs to be dealt with.
33. ' The notification issued by the Government of Punjab on 20-11-1975 which has been reproduced in an earlier part of this judgment was issued by virtue of the power conferred under section 27 of the Agricultural Produce Markets Act, 1939. It appears that this notification was prepared and signed on 0-7-1975 but was gazetted on 20-11-1975. It has been held by this Court in Muhammad Siddique v.
34. Market Committee, Tandlianwala 1983 SCMR 785 that in such like situation the late Gazette of the Notification notwithstanding, it will take effect from the date of the signing of the Notification; namely, 30th July, 1975. The Local Government 1975 Act was enacted on 3-4-1975. A question; as to whether this notification which was on face issued under the repealed Act of 1939 but in reality on the date when the said Act stood repealed and re-enacted as part of the Local Government Act, 1975 could be treated as having been issued under 1975 Act, was answered by this Court in the same above-referred case, in affirmative. Thus, the said notification shall as held by this Court be treated as one issued under the provision of the Local Government Act, 1975 which in part dealt with the Market Committees also. These provisions of 1975 Act were repealed by section 39 of the Market Committees Ordinance of 1978 but as already noticed the notification would be saved under the Provincial General Clauses Act as well as under the saving provisions contained in subsection (2) of section 39 of 1978 law. Thus the said notification shall be operative under the Market Committees Ordinance, 1978 as well. It will have to be treated as an existing law.
35. The foregoing finding that the notification of 1975 was and has been operative at all relevant times and stages in the present controversy, the next question arises as to what is its effect? It actually added a new rule 62 in the Agricultural Produce Market Rules, 1910. In its sub-rule (1) it is provided that no person or party shall establish a Market within the notified Market Area of any Market unless the site has been approved by the Government. In subsection (2) thereof a person or a party intending to establish a market is required to apply for sanction to the Government and the market could be established only with the previous sanction so obtained. In subsection (3) the Government retains the power to reject a site and the orders passed in this respect were declared to be final. Any contravention of this rule was made punishable offence. While rule 62 furnishes a clear solution for resolving the so-called clash of the two laws in so far as the very limited common sphere is concerned, in addition it also tends to support the view that the Market Produce Ordinance, 1978 would override the provisions of Local Government Ordinance.
36. ' It was soon after the enactment of the 1975 Local Government Law that Rule 62 was added. The provisions relating to Market Committees contained in Chapter XVIII had (then recently) been included as a new experiment in the Local Government Law. Notwithstanding the fact that a separate law relating to Market Committees at that time stood repealed, a distinction was sought to be made by Rule 62 regarding some provisions of the same enactment (1975 Local Government Act); namely, the provisions relating to Market Committees and the other provisions. Overriding decision was conferred on the Market Committees as compared to the Municipal and Town Committees. This can also be treated as an aid to the interpretation of the two laws. In addition to the aforementioned purpose of Rule 62, it can serve another very salutary purpose; namely, of removing conflicts between the interests of the Market Committees and the Town, Municipal Committees. The Government being common for both, Rule 62 visualises that whenever there would be a clash between the two bodies, it would resolve the same by either granting sanction or withholding the same under Rule 62.
37. ' It needs to be observed that the Government in such like situations instead of watching clash between the two statutory bodies and making statements in Courts sometimes favouring one and sometimes the other, should resolve the conflicts so as to save the innocent private parties from unnecessary unproductive expensive litigation as it has happened in this case.
38. ' It may further be remarked that if the law permits the amendment of Rules and/or bye-laws or change of policies through the intervention of the Government or its functionaries, it is necessary to do so with a view to achieve harmonious working together of the seemingly conflicting statutes and that too not as a whole but only to the extent of limited sphere.
39. ' In the light of the foregoing discussion while allowing these appeals the impugned judgments are set aside. There shall be no order as to costs.