' This order will dispose of Writ Petitions Nos.10563, 10264 and 2113 of 1992, all directed against Market Committee, Kasur challenging the vires of rule 79 of the Punjab Agricultural Produce Market (General) Rules, 1979.
2. Briefly stated, petitioners claim to be the dealers, growers and retailers and pray that they are entitled to carry on their business of purchase or sale of the agricultural produce in the old Sabzi Mandi owned by one Muhammad Amin and the prohibition contained in rule 79 is ultra vires and it may be declared that they have right to carry on their business as before even after the enforcement of this rule. First two writ petitions were admitted by me vide order dated 24-1-1993 and stay order vacated while W.P. No, 2113-92 was admitted on 11-3-1992. Petitioners in the first two writ petitions filed C.P.S.LA before the Hon'ble Supreme Court of Pakistan and following order was passed:-- "These, petitions seeking leave to appeal are directed against the orders passed by a learned Single Judge of the Lahore High Court on 22-3-1993 whereby the interim stay orders earlier passed were vacated.
' We have heard learned counsel for the parties. We observe that in these petitions setting aside of interlocutory orders in pending matters are desired. However, according to the practice of this Court such orders are not normally interfered with. In these cases it is all the more appropriate to abide by this practice because learned counsel for both sides inform us that the High Court has already accorded a full hearing on the merits of these cases and even obtained written notes of the oral submissions made by the counsel of the parties.
' In these circumstances while refusing leave to appeal against the impugned orders we observe that these cases should be disposed of on merits, on priority basis. If possible within this month.
' Disposed of with these observations.
3. Learned counsel for the petitioners have formulated their legal propositions in the following manner:-
(i) That decades before the relevant law relating to purchase and sale of agricultural produce, an old Sabzi Mandi owned by one Muhammad Amin was established and the business of sale and purchase of agricultural produce was conducted there and licences were issued from time to time by the respondent-Market Committee.
(ii) That on the enforcement of rule 79, as aforementioned, the respondents are preventing the petitioners from their disputed business in the old Sabzi Mandi and they have no authority to do so and that rule 79 is ultra vires as being repugnant to the basic provisions of Punjab Agricultural Produce Markets Ordinance, 1978 and also hit by Fundamental Right No,18 of the Constitution of Islamic Republic of Pakistan, 1973).
(iii) That the growers and retailers in the first two writ petitions are exempt from obtaining licences for the purposes of carrying on their business of sale and purchase of the agricultural produce in the old Sabzi Mandi.
' Mr. Irfan Qadir learned Addl. Advocate-General has appeared on behalf of Province of Punjab while M/s. Najmul Hassan Kazmi and Ch. Muhammad Ashraf Azeem, Advocates have made their submissions on behalf of market committee. Their common plea is that rule 79 is intra vires and the petitioners can only conduct their business in the new market at College Road, Kasur, which is the requirement of rule 79 and that the petitioners have no right to do their business in the old Sabzi Mandi, that on the establishment of the new market, business has been shifted from old Sabzi Mandi to the new market and that the petitioners, if so desire, can be accommodated in the new market after obtaining licences in accordance with law.
4. Before dealing with the respective pleas of the parties, it is necessary to state that the relevant legal provisions dealing with the controversy were Agricultural Produce Markets Act, 1939 and rules framed thereunder namely Agricultural Produce Market Rules, 1940, Punjab Agricultural Produce Markets Ordinance, 1978 and rules framed thereunder namely Punjab Agricultural Produce Markets (General) Rules, 1979. The first two enactments were repealed and now the subject is regulated under the latter provisions of Ordinance of 1978 and Rules, 1979, as aforementioned. Rule 63 of the Agricultural Produce Market Rules 1940 dealt with the establishment of a market while new rule on the subject is 67 of the Rules 1979. According to the aforementioned rules 63 and 67, 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.
' Rule 79 was inserted on 17-4-1985 in the new rules, Punjab Agricultural Produce Market Rules, 1979 and is reproduced as under:--
7. "The following new Rule 79 shall be added after rule 78: "Rule-79. Conduct of Business.--Where a regular market has been established by the market committee with the approval of the Government, all transactions (sale and purchase) of agricultural produce shall be conducted within the market premises and not outside the same."
' Before a market committee is established, a notification under sections 3 and 4 of the Ordinance 1978 has to be issued for the purposes of Ordinance and agricultural produce over which control is to be exercised in the area. The same is the legal provision in the old Act of 1939.
5. Learned counsel for the petitioners contend that Notification No,2956-D dated 8-7-1941 was issued declaring the entire Kasur to be a notified market area and petitioners can conduct their business anywhere and the prohibition contained in rule 79 that they must work in the new market is void and invalid. He submits that under clause (viii) of section 21, there can be, more than one feeder markets and in this way the petitioners are entitled to transact their business in the old Sabzi Mandi. The learned counsel wants to argue that in the alternative rule 79 does not affect the rights of petitioners to carry on their business in the old Sabzi Mandi. On the other hand, reliance is placed by the respondents on Letter No, SOA (S&M) X-52/72, dated 12/1978 whereby Government of Punjab has permitted the establishment of a new grain/vegetable market in Kasur. Para. 2 is hereunder:-- "2. In pursuance of Rule 63 of A.P.M. Rules 1940 the Government of the Punjab are pleased to accord sanction to the establishment of feeder market on the land owned by Lt.-Col. (Rtd.) Muhammad Islam of Kasur by the Market Committee, Kasur on the following terms and conditions:--
(1) The owners of the land shall transfer land in the name of Market Committee.
(2) The landowners will get 1/3rd of the amount received of the auction of the commercial plots.
(3) The Market Committee may construct an office on two plots and shall be responsible for the construction and maintenance of roads, public bath, public latrines and general cleanliness of the markets.
(4) The Deputy Commissioner will auction the commercial plots within a period of six months from the date of the issue of these orders."
' Learned counsel contend that both the grain/vegetable markets have been shifted from the Old Mandi to new market a few years back and business has started there, of course, after obtaining licences and Old Mandi having been closed down, the petitioners, in any case, have no right of business there. It is further submitted by the learned counsel for respondents that a regular market has been established under aforementioned rule 63, therefore, petitioners cannot conduct their business in the old market in view of rule 79 of new Rules 1979.
6. The first and foremost issue arising in this case is the interpretation of rule 79 promulgated on 17- 4-1985 and gazetted on 21-4-1991, whether it is applicable retrospectively or prospectively. It is the settled law that unless so provided a particular rule or enactment is applied prospectively; particularly when it relates to the existing rights. It is a common ground between the parties that Old Mandi was in existence even before the enforcement of Act, 1939 or Rules 1940 and in any case certainly before 17-4-1985 when rule 79 was added in the new rules. Mr. Muhammad Safdar, Secretary, Market Committee Kasur appeared in this Court and when questioned, stated that the Old Mandi was in existence for over 50 years and business of sale and purchase of the agricultural produce was transacted there. On the plain reading of rule 79 and keeping in view the principles governing the interpretation of statutes, it is held that rule 79 is applicable prospectively and prohibition contained therein would not apply to the rights of petitioners who were carrying on their business in the old market and as such there is no power, in law, with respondents directing the petitioners to shift to new market; particularly when the former were granting licences for the business to be conducted in the old Sabzi Mandi.
7. In PLD 1976 SC 483 Province of West Pakistan v. Mahboob Ali, it is held that basic principles governing the interpretation or construction of statutes are well-settled. But these have seldom been regarded as inflexible, except perhaps where a statute is plain, certain and free from any ambiguity so that a bare reading of it would suffice. In essence, in such case, interpretation is unnecessary. In PLD 1992 SC 869 The Regional Commissioner of Income Tax, Central Region, Lahore v. Zafar Hussain and others on the question of interpretation of law it is ruled that "any interpretation of law true to its essence must penetrate to the bottom rock of the truth and be not lost in letters of law. An interpretation which tends to specify obvious vengeance, especially when it falls on poor people, to my mind, is no just or right interpretation but annihilation of law."
' Other principles relevant for the interpretation of statute are to avoid hardships and not to affect the existing rights as law comes into force only when it takes effect or comes into operation.
Reliance is placed on PLD 1963 SC 401 Muhammad Afzal v. The Commissioner, Lahore Division etc. Where by Martial Law Order, removal of timber and bamboo shops was ordered from old site to a specified market. It is also held in PLD 1982 SC 174 Sultan Mawjee v. Federation of Pakistan Chamber of Commerce and Industry, Karachi that it is well-established that statutes pertaining to exercise of trade organization, to eminent domain, to restraint of personal liberty, or freedom of contract, and the like are statutes in derogation of common right and subject to strict construction".
' The argument of learned counsel for respondents that rule 79 can be interpreted in such manner so as to take away the right of petitioners to conduct their business in the old market, cannot therefore, be accepted. If any market/s is established after the enforcement of rule 79, it may be argued that the sale and purchase of agricultural produce can only be transacted in such a market and not in any other market. But certainly this argument is not available to the respondents in the case of petitioners who want to continue or carry on their business in the old market which was duly recognized by the respondents as a market for many decades having granted licences.
8. As to the question that the old market has totally been abandoned, learned counsel for respondents have placed on record photostat copies of written statement and report dated 4-5- 1992 of the local commissioner in a suit titled "Ayub Hassan etc. v. Khan Muhammad Amin" and also noticed some paras. Of the writ petition and on these basis it is submitted that the present petitioners have no locus standi to file this petition. Learned counsel, in reply, submitted that petitioners are not a party in the suit and, therefore, so-called proceedings are not binding on them. Further submits that the suit has been withdrawn by the plaintiffs which fact is disputed by the learned counsel for respondents. According to learned counsel, substantial question of law in the present case is the interpretation of rule 79 and the reference to proceedings of civil suit or any other, is of no avail. The facts stated by the learned counsel for respondents were taken note of in my order admitting the writ petitions and I agree with the learned counsel for petitioners that the issue in this case is radically different from any proceedings, if pending, in a Civil Court which admittedly has not passed any decree as to the rights of petitioners. In fact it is for the first time that the parties are seriously contesting and seeking decision on the interpretation of rule 79.
' During the course of arguments, learned counsel for respondents filed an application for permission to produce additional documents on the record which was allowed after giving notice to the petitioners. I have gone through this material and am of the opinion that this would not change the legal position of the case as is claimed by the respondents. In reply learned counsel for petitioners filed an affidavit of Muhammad Amin s/o Muhammad Umar Khan, owner of the Old Mandi, to the effect that petitioners are growers of vegetable and fruit and sell their agricultural produce in the shops in Amin Khan Market owned by him. It is further stated in the affidavit that all the petitioners are his tenants and sell their own agricultural produce themselves or through their agents in their shops/Tharas rented out to them by the deponent. In view of this, plea of learned counsel for respondents that old mandi has been closed down by its owner Muhammad Amin and that petitioners cannot conduct their business is of no avail. Admittedly the petitioners were carrying on their business in the old market and they would only do so with the permission of owner who admits them as tenants and, therefore, it is not possible or relevant to enter into the disputed question of fact whether or not the old mandi is in existence.
10. The other argument of learned counsel that petitioners in the first two writ petitions are growers and retailers and, therefore, exempt from obtaining licences is devoid of any force. Reliance is placed by the learned counsel on rule 7 of 1940 Rules, already repealed, and also on rule 29 of 1979 Rules, to show that the petitioners are not required to obtain any licence for carrying on their business. The plain reading of sections 6 and 9 of the Ordinance 1978 and rules 6, 7 and 9 of Rules 1979 unmistakably show that the petitioners are not exempt as prayed for. It has been held in PLD 1989 SC 449 Noon Sugar Mills Ltd. v. Market Committee and others while interpreting section 4(2) of the Punjab Agricultural Produce Markets Act, 1939, as hereunder:--- "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 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."
' In view of above, I am not inclined to agree with the learned counsel that the petitioners are exempt from obtaining licence for carrying on their business.
11. Learned counsel for petitioners next contend that rule 79 is void as against the Fundamental Right No,18 of the Constitution of the Islamic Republic of Pakistan, 1973 and also against the basic provisions of Ordinance 1978, that it is unreasonable and mala fide and that it leads to absurdity and, therefore, a declaration may be given to this effect. Reliance is placed on AIR 1955 Mysore 147 Bangalore Municipality v. Messrs N. Sirur & Co., AIR 1954 Allahabad 202 Radha Krishan v.
Compensation Officer Meja, Allahabad, AIR 1944 Nagpur 73 Municipal Committee, Khurai through R.S. Krishnachandra Sharma v. Firm Kaluram Hiralal, 1992 SCMR 2450 Pakistan through Secretary, Cabinet Division, Islamabad v. Nawabzada Muhammad Umar Khan PLD 1961 SC 403 Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company Employees' Union Dacca etc. PLD 1964 (W.P.)
Lahore 101 Muhammad Ahsan Ullah Khan v. Muhammad Sami Ullah Khan PLD 1962 (W.P.) Lahore 878 Masud Ahmad v. The State PLD 1964 Dacca 756, Sh. Abdul Majid v. Bhudar Chandra Chosh, PLD 1969 Lahore 438 Begum Agha Abdul Karim Shorish Kashmiri v. Government of West Pakistan 1987 CLC 1608 Shaukat All v. District Magistrate/Collector, Gujranwala, PLD 1990 Lahore 269 Taj Din v. Zila Council, Kasur, AIR 1961 SC 448 Abdul Karim etc. v. State of Bihar and AIR 1958 SC 731 Muhammad Hanif Qureshi v. State of Bihar in support of the proposition. I have gone through the relevant judgment and am of the opinion that there is not a single case-law in favour of petitioners. Rule 79 has been reproduced above and from its plain reading, it is amply demonstrated that this is in the nature of a regulatory provision and not hit by any provisions of law as prayed for by the learned counsel. A market committee is established under rule 67 of the Punjab Agricultural Produce Market (General) Rules, 1979 and this could be done with the permission of the Government and rule 79 only postulates that all transaction (sale and purchase) of agricultural produce shall be conducted within the aforementioned market premises and not outside the same. In other words, this rule is in the nature of proviso to rule 67 which is reproduced as under:- "67. The Government may allow the establishment of a feeder market in any notified market area in the manner hereinafter provided.
(2) Any person intending to establish a feeder market within a notified market area of any market committee shall make an application to the market committee concerned, giving full details of the site where feeder market is intended to be established.
(3) The market committee shall forward the application to Extra-Assistant Director of Agriculture (Economics and Marketing) who, after due publicity shall inspect the site and undertake necessary scrutiny and forward the case with his report to the Deputy Commissioner.
(4) The Deputy Commissioner shall forward the case with his comments to the Director of Agriculture (Economics and Marketing), who with his own remarks shall transmit the case to the Government for orders.
(5) The Government, after considering the aforesaid reports/comments/remarks, may allow or disallow the establishment of the feeder market. The decision of the Government in this regard shall be final.
(6) Establishment of feeder market shall be subject to the following conditions:--
(a) The owner of the land shall sell the selected site at a fixed price of Rs,5 (five rupees) per Marla and execute the sale-deed in favour of the market committee within a period of two months from the date of communication of the decision of the Government, failing which the Government may withdraw the decision about establishment of the feeder market.
(b) The market committee shall prepare a plan for the development of the selected site and carve out commercial plots and auction the same through the Deputy Commissioner or his nominee within a period of six months from the date of the decision of the Government. Under circumstances unavoidable or beyond control, the Government may extend the said period as it may deem necessary.
(c) The market committee shall have the right to retain two plots for construction of its office.
(d) The market committee shall construct roads, water supply system, sewerage, public baths and latrines and shall instal street lights in the feeder market, and shall be responsible for their proper maintenance and for general cleanliness of the premises.
(e) After defraying the development charges out of the auction proceeds of the commercial plots the market committee shall pay one-third of the remaining amount to the owner of the land.
(f) In case of forfeiture of a plot and reaction thereof, the land owner shall not be entitled to claim an amount in excess of what he has already received."
By no analysis of the relevant legal provision, it can be said that rule 79 has banned or abolished the disputed business. The argument of learned counsel for petitioners that rule 79 is invalid piece of legislation is devoid of any force.
12. Much emphasis has been laid down on the provisions of Article 18 which is reproduced as hereunder:-- "18. Freedom of trade, business or profession.--Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business: ' Provided that nothing in this Article shall prevent--
(a) the regulation of any trade or profession by licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or
(c) the carrying on, by the Federal Government or a Provincial Government, or by a Corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial of other persons."
By this time, it is a settled law that the right guaranteed by this Article is not an absolute right and that laws can be made for regulation of any trade or profession by licensing system. In view of this rule 79, lays down reasonable restriction that from its commencement or operation, business or transaction shall be made within the premises of the market committee and not outside the same.
In view of clear position, it is not necessary for me to dilate upon the issue extensively; particularly when rule 79, is applicable prospectively as held above and did not affect the rights of petitioners to conduct their business in the Old Sabzi Mandi and respondent market committee had no power whatsoever to order the petitioners to shift their business to the new market. Article 18 was subject- matter of discussion in PLD 1975 SC 667 Government of Pakistan through Secretary, Ministry of Commerce v. Zameer Ahmad Khan and PLD 1989 Karachi 219 Abdullah v. S.D.M. Sukkur and others and it was held that this article which relates to the freedom of trade, business or profession assures the citizens the right to enter upon any "lawful profession or occupation" and "to conduct any lawful trade or business" but the word "lawful" qualifies the right of citizen in the relevant field. It was further observed that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful. In the same way, under Article 18 the State can make laws regulating any trade or business and rule 79, is in the nature of a regulatory provision. The submission of learned counsel that rule 79 is void is wholly unconceivable on the facts of the present case with the result that rule 79 is a valid piece of legislation but not applicable to the case of petitioners.
' For the foregoing reasons, all the three writ petitions are accepted and it is held that petitioners are entitled to transact their business of sale and purchase of agricultural produce in the Old Sabzi Mandi despite rule 79 of the Punjab Agricultural Produce Market (General) Rules, 1979.
' There is no order as to costs.