' SAJJAD ALI SHAH, J.---This appeal with leave of the Court is directed against judgment dated 14- 9-1989 of Division Bench of the High Court of Sindh at Karachi, whereby Constitutional Petition No, D-77 of 1988 filed by appellant herein is dismissed.
2. Briefly stated the relevant facts giving rise to this appeal are that the appellant is engaged in the business of manufacture of sugar having its factory in Balochabad Union Council in District Mirpurkhas. As per appellant for producing sugar, primary raw-material is sugar-cane which is purchased by the appellant for its private use from the growers of the area of the District as is notified for every crushing season by the competent authority under sections 10 and 14 of the Sugar Factories Control Act, 1950. Appellant is prohibited from purchasing sugar-cane from outside the area unless a free zone is so specified by the Cane Commissioner under the said Act of 1950. On 10th November, 1982, Government of Sindh (respondent No,1) issued Notification under section 3 of Agricultural Produce Markets Act, 1939 (to be referred hereafter as A.P.M. Act, 1939) notifying its intent to exercise control over the purchase and sale of agricultural produce. In the said Notification, the area of Balochabad was notified wherein the sugar factory of the appellant is located but no mention was made in it as to for what particular agricultural produce. Another Notification dated 5-114983 was issued under section 4 of A. P. M. Act, 1939, declaring Union Council of Balochabad as included in the local area of Marketing Committee of Mirpurkhas.
3.. On 24-11-1987, Marketing Committee, Mirpurkhas (respondent No,3) sent copies of two notifications mentioned above, calling upon appellant to obtain licence under section 6 of A.P.M.
Act, 1939 and make payment of market fee. ,On 17-12-1987 notice was issued for payment of market fee including arrears with threat of action in case payment was not made. Amount liable to he recovered was not mentioned in the said notice. Feeling aggrieved, appellant filed Constitutional Petition No, D-77 of 1988 in the High Court of Sindh, challenging notifications dated 10-11-1982 and 5-11-1983 mentioned above, on the grounds that they did not fulfil requirement of provisions of A.P.M. Act, 1939 inasmuch as first notification did not specify agricultural produce as contemplated under section 3 and the second notification should have notified market area as contemplated under section 4 of the A.P. M. Act, 1939 in pursuance of first notification in respect of agricultural produce. Several other legal grounds were also taken, inter alia, that services were not provided by the Marketing Committee and interpretation of Rule 29(2) and (3) of Agricultural Produce Market Rules of 1940 required to show that fee is payable in equal shares by both the sellers and buyers of the agricultural produce.
4. In the High Court in the abovementioned Constitutional petition, counter-affidavit was filed on behalf of Marketing Committee, Mirpurkhas (respondent No,3) by the Chairman, in which allegations were denied and stand was taken that notifications impugned in that petition were valid and Baluchabad was rightly declared as notified market area to be within proper jurisdiction of the Market Committee, which performed duties of arranging open auction of the agricultural produce and supervised all operations connected therewith including correct weighment and timely payment of its price. Omission of specifying sugar-cane as agricultural produce in the impugned notification was defended on the ground that "agricultural produce" is defined under section 2 of A.P.M. Act, 1939 which includes sugar-cane and its products, viz. Gur, Shakhar, Shakkar Desi and refined, molasses, sugar-cane and sugar-cane juice. Averment was made that appellant is a dealer and is covered by definition as contemplated under section 2 (a) (b) of A.P.M. Act, 1939 as appellant purchases sugar-cane brought to its factory by growers and uses the factory premises for purchase or sale of "agricultural produce". After hearing both parties, Constitutional petition in the High Court was disposed of vide impugned judgment in the terms mentioned above.
5. We have heard in sufficient detail Mr. Khalid Anwar, learned A.S.C. For the appellant and Mr. Khalid M. Ishaq, learned A.S.C. For respondents. On behalf of appellant, it was submitted that hearing in the High Court took place on four dates from 27-4-1989 to 14-5-1989 and judgment was delivered on 14-44989, hence may be on account of long lapse between hearing and decision, some important points of law were not considered and left out in the judgment. In this context our attention was drawn to paragraph 2 of the impugned judgment in which it is stated that Mr. Rashid A. Akhund, Advocate for the petitioner initially formulated about 16 points in support of the petition but during the course of the arguments had abandoned most of his points and confined his arguments to only four points specified therein, Factual position is controverted on the ground that it was not so and all the points were pressed. Mr. Akhund, though not appeared before us in this appeal, has filed his personal affidavit in support of the contention (page 94 of paper book) in which in paragraph 11, it is stated that he abandoned only grounds No, 4, 6, 7 and 15. In the record of the High Court, there are points enumerated in writing by Mr. Akhund with marking and noting with pencil in the margin presumably by the author Judge showing points given up and those connected with points given up. In the circumstances, there is possibility of a bona fide mistake but Mr. Akhund did not file review petition in the High Court after judgment was announced.
6. Mr. Khalid Anwar submitted before us that in the High Court judgment in C.P. No, D-789 of 1973 filed earlier in point of time by appellant against Government of Sindh and Mirpurkhas Market Committee was cited and relied upon in support of the contention but the same was not adverted to or mentioned in, the impugned judgment. In this context, we have perused the record and find that in the memorandum of Constitutional Petition No,D-77/88 from which the present appeal arises and copy of this memo is at page 33 of the paper book, there is no mention in it about reliance on decision of C.P. No, D-789 of 1973. Since copy of judgment in C.P.No, 789/73 is on the record at page 59 of the paper book, the same is perused and it appears that in the said petition notification dated 18-1-1972 under section 4 of the A.P.M. Act, 1939 purporting to include Balochabad within market area was challenged on the ground that it did not conform to the prior notification under section 3 of the said Act. The High Court after hearing the advocates for the parties and reading sections 3 and 4 of the said Act in juxtaposition came to the conclusion that the notification impugned in that petition did not conform to the requirment of sections and resultantly the petition was allowed. Situation is same and the contention raised is not borne out by the record before us as stated above. In any case the contention would recede in the background as redundant for the reason that we propose to go into the question of interpretation of sections 3 and 4 of the A.P.M. Act, 1939.
7. Before going into question of interpretation of sections 3 and 4 of the A.P.M. Act,1939, it would be relevant at this stage to observe that the said A.P.M. Act, 1939 and the Sugar Factories Control Act, 1950, co-exist and are operative side by side for the reason that although they pertain to the subject of sugar-cane but occupy different fields without element of overlapping in their provisions. The Sugar Factories Control Act, 1950 provides for regulating the supply of sugar-cane intended for use in such factories and the price at which it may be purchased and for such other matters as may be incidental thereto. Under the said Act, Sugar-cane Control Board is set up and Cane Commissioner is appointed and as contemplated under section 10 thereof Cane Commissioner is authorised to declare any area to be reserved area for the purposes of supply of cane to a particular factory during a particular crushing season or seasons. As against that preamble of the A.P.M. Act, 1939 provides for the better regulation of the purchase and sale of agricultural produce of sugarcane in the Province and for that purpose to establish markets and make rules for their proper administration. We, therefore, do not accept the contention of appellant that both laws mentioned above are repugnant to or in conflict with each other.
8. It was contended before us by Mr. Khalid Anwar for appellant that since A.P.M. Act, 1939 makes a provision for recovery of fees, therefore, it is a fiscal law requiring strict construction. Notification dated 10-11-1982 under section 3 thereof (page 52 of paper book) inviting objections and suggestions mentions area of Balochabad but does not specify sugarcane as agricultural produce. It is further pointed out that requirement of section 3 is to mention in the said Notification "such" agricultural produce and in "such" area which clearly shows that both agricultural produce and area are to be pinpointed and identified specifically. Second Notification dated 5-11-1983 (page 54 of paper book) issued under section 4 is assailed on the ground that it is to follow the first notification and if the first notification is defective and invalid, then automatically the second notification would be rendered invalid and both are ultra vires as they do not specify sugar-cane as agricultural produce. On this point, High Court has held that in the absence of any restrictive clause the Government can, without specifying, exercise control over all agricultural products as are mentioned in section 2(a) of the A.P.M. Act, 1939.
9. There is no dispute about the fact that fiscal statute requires strict construction. Now question arises as to what is the effect of not mentioning specifically "sugar-cane" in the first notification dated 10-11-1982 issued under section 3 of A.P.M. Act, 1939. There is explanation given by respondent No,3 (Market Committee Mirpurkhas) in the counter-affidavit filed in the High Court (page 68 of paper book), which is to be considered in arriving at the conclusion. It is stated therein that section 2 of the said Act defines agricultural produce, specifying several items also and empowering the Government to declare any other commodity as such by notification. Sugar-cane is mentioned in the schedule appended to the said Act. Subsequently "sugar-cane" has been included specifically in the definition. In such circumstances it was assumed that issuing notification under section 3 of the said Act to exercise control over purchase and sale of agricultural produce as defined in the said Act would amount to sufficient compliance of the requirement. This notification was followed by another notification issued on 5-11-1983 as contemplated under section 4 of the said Act declaring notified area.
10. Appellant was informed by way of notice dated 20-1-1983 to obtain licence as required under the provisions of A. P. M. Act, 1939 but he failed to respond in spite of several reminders. Respondent No, 3 received letter dated 25-5-1983 from the appellant intimating that they could not offer any reply as they were not aware of contents of letter dated 29-1-1983 referred in letter dated 11.5-1983 which was received. Copies of both letters from the Market Committee are on the record which show that in the letter dated 11-5-1983 which is acknowledged by the appellant (page 77 of paper book) the subject heading mentioned therein is obtaining licence under section 6 of A. P. M. Act, 1939 and payment of market fee under Rule 29 of Rules framed thereunder. Copy of letter dated 29-1-1983 in the record (page 75 of the paper book) contains the said subject heading as mentioned in the subsequent letter and intimating categorically that prescribed licence is to be obtained and market fee is to be paid at the rate of 0.25 paisa per 50 K. G. In respect of purchase of sugar-cane by the appellant mill. In both the letters address of appellant is same as Mirpurkhas Sugar Mill, Mirpurkhas and it is surprising that the second mentioned letter is acknowledged to have been received while first mentioned letter sent at the same address is not acknowledged to have been received. In this way correspondence went on between appellant and respondent No, 3 and finally vide letter dated 23-9-1984 appellant asked respondent No, 3 for enlightenment regarding provisions of the Act on the basis of which licence was required to be obtained (page 83 of the paper book). Respondent No, 3 obliged and in letter dated 18-7-1985 (page 84 of the paper book) reproduced relevant portions of sections 2, 6 and 19 of the same Act and Rule 19 of Rules framed thereunder. Appellant did not respond once again in spite of several reminders and vide letter dated 16-11-1987 requested for copies of notifications issued under sections 3 and 4 of the said Act. Immediately thereafter appellant filed writ petition in the High Court. This very clearly shows that appellant had the knowledge that he was required to obtain licence for payment of market fee and he deliberately and intentionally avoided to obtain the said licence and make payment of the required fee by not responding to the notices, letters and reminders issued by respondent No, 3 and pleading complete ignorance. Plea of ignorance and deliberate failure to respond by appellant is further exposed by the fact that appellant on an earlier occasion had filed Constitutional Petition No, 789/73 in the High Court of Sindh against the same respondents as in this appeal challenging issue of notification under section 4 of A. P. M. Act, 1939 on the ground that it did not conform to the. Prior notification under section 3 of the said Act which was allowed. After long dillydally in the manner stated above and succeeding in not paying market fee, appellant challenged the issue of notification on technical ground that notice under section 3 of the said Act did not mention the word "sugar-cane" as agricultural produce.
11. Scheme of the A. P. M. Act, 1939 shows very clearly that it has been enacted for better regulation for purchase and sale of agricultural produce and establishment of markets for that purpose mainly to give protection to the growers from unscrupulous businessmen and to afford facilities to them so that they can obtain a fair price for their produce. Sections 3 and 4 of the said Act are procedural in nature and their main object is to declare intention of exercising control over purchase and sale of agricultural produce in the area to be notified. No doubt use of word "such" for agricultural produce and area separately at two places shows that both agricultural produce and area are to be pinpointed and omission of mentioning sugarcane as agricultural produce is convincingly explained by respondent No, 3, as stated above, which is accepted as sufficient compliance. In this context use of word "shall" is to be considered as directory and not mandatory for the reasons that section 3 is procedural in nature and further no penalty is provided for its non- compliance. Non-Mentioning of sugarcane as agricultural produce in the notice under section 3 has not caused any prejudice to the appellant in any manner as he had full knowledge that he had to obtain licence for payment of market fee in respect of purchase of sugarcane from growers. In support of the proposition reference can be made to the decisions of this Court in cases of Muhammad Ismail v. The Province of East Pakistan and others (PLD 1964 SC 475) and Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and others (PLD 1972 SC 326).
12. Contention of the appellant further is that notification under section 4 of the A. P. M. Act, 1939 follows and is dependent upon notification issued under section 3, hence if earlier notification is defective then subsequent notification would likewise suffer from same infirmity. This contention is not tenable for the reason that section 4 is divided into two parts and subsection (1) provides that after expiry of the period specified in the notification under section 3 and after considering such objections and suggestions as may be received the Government may by notification declare area notified under section 3 as notified market area. Noteworthy factor in this subsection is that word "shall" is not used but "may" is used. In subsection (2) word "shall" is used providing that after issue of notification no person unless exempted by rules shall establish or continue or allow to be continued any place for purchase or sale of the agricultural produce except under licence granted in accordance with the provisions of this Act within notified market area. Contravention of this provision is made punishable under section 26 of the said Act with fine which may extend to 500 rupees and in the case of continuing contravention with fine which, in addition to such fine as aforesaid, may extend to 30 rupees for every day, after the date of first conviction, during which the contravention is continued. Contention of the appellant that notification under section 4 of the said Act is assailable on the ground of defect in section 3, is not accepted for the reasons that there is no defect in section 3 as omission of word "sugar-cane" as agricultural produce has caused no prejudice to the appellant and moreover section 3 is procedural in nature. In the light of what is stated above, cases cited by Mr. Khalid Anwar namely; Messrs Firdous Spinning and Weaving Mills Ltd. And others v. Federation of Pakistan and others (PLD 1984 Kar. 522), Kotri Association of Trade and Trade and Industry v. Government of Sindh and another (1982 CLC 1252) and The Commissioner of Agricultural Income Tax, East Bengal v. B.W.M. Abdur Rahman (1973 SCM R 445), are not attracted to the facts of this case.
13. Appellant, which is a sugar mill, purchases sugarcane from growers and as such is caught within the definition of "dealer" as defined in section 2(aa) of A.P.M. Act, 1939 and reproduced as under:- "Dealer" means any person not being a grower who within the notified market area sets up, establishes or continues or allows to be continued any place for the purchase or sale of the agricultural produce notified under subsection (1) of section 4 or purchases or sells, such agricultural produce."
14. It is clear in the definition stated above, that dealer does not necessarily mean to be a person, who deals bilaterally in the sense that he purchases and sells but here a person is also a dealer who offers purchases or sells the commodity in question. This definition is to be read in conjunction with section 4(2) of the said Act which provides that only that person is excluded who is exempted or is a grower, who sells himself or through a bona fide agent his own agricultural produce or agricultural produce of his tenants on their behalf or is a person who purchases any agricultural produce for his private use. Appellant/mill does not come within the exception because it purchases sugar-cane from growers for the purpose of manufacture of sugar to be sold outside in the market. Reliance by the learned counsel for the appellant on section 4-A is misplaced and does not help in excluding appellant from the definition of dealer for the reason that this provision provides for wholesale transaction by open auction as one of many modes. Moreover, there is proviso of this section providing that where minimum price is fixed by or under any law the agricultural produce shall not be bought or sold at lower price than so fixed.
15. It was nest contended on behalf of the appellant that appellant is a mill and not a person as mentioned in the definition of dealer as provided in the said Act. Section 6 also requires a person to obtain licence and disqualifications mentioned therein such as, minor, of unsound mind, and guilty of offence relate to a person and cannot be considered as disqualifications of a mill. Contention is repelled on the ground that mill is expected to be run by a person under some designation, who is expected to obtain licence on behalf of the mill. Question with regard to definition of dealer in similar circumstances as in this case came up for detailed examination before this Court in the case of Noor Sugar Mills Ltd. v. Market Committee and others (PLD 1989 SC 449) in which about 30 appeals were filed by sugar mills, corporations and foundations against different Market Committees in Punjab. Sections 4, 7, 19, 20, 21 and 27 of A.P.M. Act, 1939 read with Rule 29 of the Rules framed thereunder were considered in detail and the final conclusion arrived at by this Court as stated in paragraph 10 of the report at page 458 is reproduced as under:- "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 sugar-cane 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 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."
16. It is submitted by the learned counsel for the appellant that under the provisions of A.P.M. Act, 1939 notifications are to be issued under sections 3, 4, 7, 8 and 10 in that order but in the instant case notification under sections 7, 8 and 10 was issued on 7-9-1982 and after that notifications under section 3 was issued on 10-11-1982 and under section 4 was issued on 5-11-1983 which amounts to placing cart before the horse. Mr. Khalid M. Ishaq has replied that Market Committee was set up in the year 1964 and continued to function and its area of operation was adjusted from time to time. Notification dated 7-9-1982 provides for appointment of Members of the Market Committees in District Tharparkar. Constitutional Petition No,789 of 1973 filed by appellant in the High Court previously shows that attempt was made to include. Balochabad within the market area which was resisted by the appellant with challenge to notification which was allowed. Another attempt was made to do so on second occasion in the year 1982 and appellant resisted again by not responding and raising plea of ignorance in the manner stated above and finally challenged notifications in the Constitutional petition again. Mr. Khalid Ishaq further stated that Mirpurkhas Market Committee was already in existence as per notification dated 9-2-1967, photo copy produced, which is placed on the record. At that time several Market Committees including Mirpurkhas were shown having been set up in Tharparkar District. Notification dated 7-9-1982 relates to appointment of Members from areas not including Balochabad and is, therefore, not relevant for the present purposes. Close scrutiny of sections 7 and 8 of the said Act shows that Mirpurkhas Market Committee already in existence shall continue to function after inclusion of Balochabad in the notified market area and then notification will be issued for adjustment in the membership to make it consistent with area included to provide representation of members from persons carrying on business in the said Committee as contemplated under section 8.
17. For the facts and reasons stated above, we find no merit in this appeal, which is hereby dismissed.