Through this Constitutional petition, the petitioner has sought the following reliefs: ---
(i) That all orders and proceedings of respondent No.1 for establishment of Vegetable Market and its leasing out are illegal;
(ii) That the respondents be restrained from recovering the Arhat/Dharat/Public Market Fee;
(iii) That direction be issued to respondent No.1 not to auction the lease of Vegetable Market; and
(jv) Direction to respondent No.1 not to recover the lease money from the petitioner and to allow the petitioner to carry on business of agricultural produce openly without interference from respondent No.1.
The facts leading to the filing of this petition, briefly stated, are that on 29-6-1993, the petitioner obtained, through open auction, contract for the collection of rent from shops in the Vegetable Market for the year 1993-94 being the highest bidder at Rs.2,60,000. As per, terms of the auction, he deposited 1/10th of the lease money on 3-7-1993. Thereafter, he regularly deposited the monthly instalments up to October, 1993 whereafter he defaulted in the payment of the instalments. On 2- 10-1993 he filed this , petition and challenged respondent No.1's right to establish and auction Vegetable Market. He has also challenged respondent No.3 (Market Committee, Hasilpur's) right to levy Arhat/Dharat/Public Market Fee from the growers. In support of this petition, the learned counsel for the petitioner has raised following pleas:---
(i) That the Town Committee cannot establish Vegetable Market and cannot lease out the collection of rent through auction. He relied on a judgment of the Hon'ble Supreme Court reported in 1992 SCM R 1403 (Market Committee v. The Town Committee);
(ii) that the Government of Punjab has abolished Dharat vide Notification dated 17-4-1990 and the Town Committee cannot levy or recover the same; and
(iii) that only respondent No.3 (Market Committee) can establish market under the Agriculture Produce Ordinance, 1978 and the Rules framed thereunder.
3. In the written replies submitted by respondent No.1 (Town Committee) and respondent No.3 (Market Committee), the assertions made in the petition have been controverted and it has been maintained that both the respondents have acted strictly in terms of the statutory provision and no case for interference is made out in writ jurisdiction.
4. The learned counsel for respondent No.1 has argued as follows: --
(i) That the petitioner entered into a contract (through auction) for the collection of rent of the shops in the Vegetable Market. Being a party, he cannot invoke the extraordinary jurisdiction of this Court qua a matter which is germane to the terms of the contract. He relied on 1984 CLC 1129 (Hafiz Misbahul Hassan v. Director-General of Supplies), 1987 CLC 650 (Sarwar Bano v. Muhammad Anwar), and 1993 M LD 627 (Ch. Muhammad Akram Bhatti v., Government of Pakistan through Secretary Defence, Islamabad);
(ii) that the petitioner has no locus standi to file this petition as objection to the establishment of a vegetable market can be raised only by respondent No.3 which has not done so;
(iii) that the purpose of section 4, subsection (3) of the Agriculture Produce Market Ordinance, 1978, is that in case a Public Vegetable Market is established by a Market Committee, no Local Council can establish the same. As the Market Committee has admittedly not established any market in question, respondent No.1 cannot be restrained from establishing the same;
(iv) that the petitioner obtained the contract in auction from respondent No.1 for the period 1993-
94. He paid instalments up to October, 1993. Now he wants to wriggle out of the same. His conduct disentitled him to any relief in equity;
(v) that the Vegetable Market was established by respondent No.1 under the previous law i.e. Bahawalpur Agriculture Produce Market Act, 1947. Agriculture Produce Market Ordinance was enforced in 1978. Sections 38 and 39 of the said Ordinance have saved the Public Market established under the old law.
5. The stand taken by respondent No.3 (Market Committee) in the written reply, can be summed up in the following manner: --
(i) That the petitioner company had obtained the license under the rules from the Market Committee to do business in the area notified by it as `Notified Market Area'. All licensees are obliged under the law to pay market fee. The levy of market fee is not dependent on establishment of a `vegetable market';
(ii) that so far the Market Committee has not established any `vegetable market', the petitioner, if aggrieved of any order or act of the Market Committee, can challenge the same in appeal or by filing a civil suit.
6. The controversy which has been mooted in this writ petition is relatable to two conflicting provisions in the Punjab Local Government Ordinance, 1979 and the Punjab Agricultural Produce Markets Ordinance, 1978. To appreciate the said conflict both these provisions are being reproduced below: -- "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 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, weigh men and other persons practising their calling therein."
"PUNJAB' AGRICULTURAL PRODUCE MARKETS ORDINANCE, 1978: Section.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 purchase 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 provision of this Ordinance."
This conflict came up for consideration before the Hon'ble Supreme Court in 1992 SCM R 1403 (Market Committee, Khudian through its Administrator v. Town Committee, Khudian through its Chairman). Vide this judgment three appeals were decided by the august Supreme Court but the main conflict in this judgment pertained to the powers of a Market Committee and Town Committee with regard to establishment of fruit and vegetable markets and in this case both these institutions were pitted against each other. While taking note of the overriding decision making power conferred on the Market Committee as compared to the municipal and town committees the Hon'b1e Supreme Court referred to a notification issued by the Government of the Punjab under section 27 of the Agricultural Act, 1939 on 20th November, 1979. This Notification reads as under: -- "NOTIFICATION The Punjab Gazette, Published by Authority, Lahore Thursday, November 20, 1975, Government of the Punjab.
NOTIFICATION, The 30th July, 1975.
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 Markets Rules, 1910, 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.
Any contravention of this rule shall be punishable with a fine which may extend to fifty thousand rupees.
By order of the Governor, Majid Hassan Khan, Secretary to Government of Punjab Agricultural Department."
This notification according to the Hon'ble Supreme Court is still a valid law as--- "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."
Commenting further on the afore-referred Notification, the august Supreme Court (at page 1413) held:--- "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 two, 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."
When confronted with the afore-referred observation of the Hon'ble Suprem Court, the learned counsel for the petitioner conceded that the Government retains the power to sanction or withhold sanction for establishing the fruit and vegetable markets. It is not denied that the fruit and vegetable market is being run by the town committee for the last many decades. In para. 4 of the comments filed by respondent No.1 it is contended that the said market was established under the Bahawalpur Municipal Act, 1943 vide Notification No 39-SLG dated 23-3-1954. Even in terms and conditions of auction for the year 1993-94 a reference has been made to this Notification. A copy of the said notification was also appended with the comments. This argument was not objected to by the Market Committee and in fact is acquiesced into. Even in the comments submitted before this Court it has not contested the right of the Town Committee to establish the market in question. In the parawise comments submitted on behalf of the Secretary, Local Government it has been specifically conceded that the Town Committee, Khairpur Tamiwali is also competent to establish vegetable market and to collect market fee. The fact that the fruit and vegetable market established by respondent No.1 is functioning since 1954; that the Market Committee accepted it by acquiescence, that they have not contested the right of the town committee to establish the same; that this arrangement was not interfered with by the Government and that the Secretary Local Government in his comments has specifically defended the right of the Town Committee, Khairpur Tamiwali to establish the market in question would tantamount to a sanction. By the Government in terms of rule 62 referred to above which as per the judgement of the Hon'ble supreme Court has to be treated as an existent law. There is, therefore, no illegality in the establishment 'of fruit and vegetable market by respondent NO-1.
The petitioner has also challenged the right of respondent No.1 to recover Arhat/Dharat/Public Market Fee. In para. 7 of the comments submitted by respondent No.1 it has been specifically averred that no Arhat/Dharar fee is being charged. This grievance of the petitioner is, therefore, misplaced.
7. Ther is yet another aspect of the matter. The petitioner is a lessee of the shop of fruit and vegetable market belonging to the Town Committee, Khairpur Tanaiwali which it obtained in auction for one year commencing from 1-7-1993, to 3iO-6-1994 @ Rs.2,60,000. He deposited the security amount of Rs.4,000 and 10% of the total amount i.e. Rs.26,000 with the Town Committee and also paid the initial monthly instalments uptill July, 1993. In October, 1993 he challenged the right of the Town Committee to auction the shop6 in the fruit and vegetable market. I am afraid this conduct of the petitioner by itself would disentitle him to any relief in the equitable jurisdiction of this Court.
8. For what has been discussed above, there is no merit in this petition which is hereby dismissed with no order;to costs.
AA-/G-305/11Petition dis pissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.