' Municipal Committee, Pattoki, filed a complaint under section 115/116 of the Municipal Administration Ordinance through its Sanitary Inspector alleging that Market Committee, through its Chairman Sardar Muhammad Arif, had opened a fruit and vegetable market at Halla Road, Pattoki and as the same had been done without obtaining a licence under section 64 of the Municipal Administration Ordinance, therefore, they have committed an offence. The case was tried by Mr. Javid Talat, Magistrate First Class, Kasur, who vide his judgment dated 16-2-1965, found Market Committee guilty under section 116 of the Municipal Administration Ordinance and sentenced it to pay a fine of Rs, 200 plus a fine of Rs, 5 per day from the 13th of April, 1963. It was further ordered by the trial Court that the Market Committee should obtain a license from the Municipal Committee or to close down the market. Market Committee filed an appeal before the learned Sessions Judge, Lahore, who vide his judgment dated 1-12-1965, dismissed the appeal and upheld the conviction and maintained its sentences.
2. Hence, this revision petition by Market Committee, Pattoki, which was admitted by this Court on 19-1-1966 and notice was issued to the respondent Municipal Committee and the operation of the impugned order was suspended. The petitioner Market Committee also filed a petition (Criminal Original No, 100 of 1966), sometime after the suspension of the operation of the impugned order and prayed that ' since, Khan Muhammad Yousaf Khan, Vice Chairman, Sh. Niaz Muhammad Secretary, Jan Muhammad Peon and Muhammad Alam, Parokar, of the respondent Committee, had disobeyed the order of this Court, therefore, contempt proceedings be taken in hand and they should be punished under Contempt of Court Act. Similarly, the petitioner (Market Committee) moved an application (Criminal Misc. No, 2416 of 1966) stating therein that after the suspension of the impugned order, the respondent Committee, filed another complaint under section 115/116 read with sections 62 and 63 of the Municipal Administration Ordinance, in the Court of Tehsildar Chunian, without mentioning the fact that the impugned judgment and order on the same subject, had already been suspended by this Court. Since the three petitions arise out of the same impugned judgment and the facts are the same, I will dispose them of by a single judgment.
3. I have heard the learned counsel for the petitioner as well as for the respondents and also the learned Assistant Advocate-General and have perused the record of this case, carefully. Learned counsel for the petitioner has submitted that the learned trial Court and the learned appellate Court have failed to appreciate the legal position in this case and have also misread sections 63 and 64 of the Municipal Administration Ordinance, 1960. It has been further submitted that by no stretch of imagination and under no law, Market Committee (petitioner) could be considered a private body which was under obligation to seek licence from the Municipal Committee (respondent) under section 64 of the Ordinance.
4. On the other hand, learned counsel appearing on behalf of the respondent Municipal Committee, Pattoki, has submitted that the Market Committee was a private body and was under obligation to seek a licence under section 64 of the Municipal Administration Ordinance, 1960 and therefore, both the Courts below were fully justified to convict the petitioner. Learned Assistant Advocate General appearing on behalf of the State, has submitted that he is not in a position to support the judgments of the trial Court as well as the appellate Court as the . Same are based on misconception of law.
5. I have given my anxious thought to all the contentions raised by the learned counsel for the parties and deem it useful to reproduce sections 63 and 64 of the Municipal Administration Ordinance, 1960, so as to resolve this controversy.
"63. Public Markets.-(1) A Municipal Committee 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) A Municipal Committee may, in respect of a public market, provide, by bye-laws- (a)the fees to be charged for the use of, or for the 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, weighment and other persons practising their calling therein."
64. Private markets.- (1) No private market for the sale of articles of food or drink or for the sale of animals shall be established or maintained within a municipality except under a licence granted by the Municipal Committee, and in conformity with the conditions of such licence.
(2).
(3).
(4).
(5)..
' The reading of these two sections makes it absolutely clear that where a public market comes into existence or is established either by the Municipal Committee or by some other agency, the Municipal Committee can only charge certain fees as provided by its bye-laws. It is only in a matter of private markets that the person or persons who sets or set up such markets are under obligation to obtain a licence from the Municipal Committee to establish the same. Now in view of this clear cut position, the only point which falls for determination before me is whether a Market Committee is a private body or a statutory body and what is the effect of sections 63 and 64 of the Municipal Administration Ordinance, 1960 vis-a-vis, its position as it would be seen that the Market Committee was set up under the Agricultural Produce Market Act of 1939. Its preamble reads as follows :- "Whereas it is expedient further to amend the Agricultural Produce Markets Act, 1939, in the manner hereinafter appearing ; ' The preamble as well as the Act leaves no room for any doubt that a Market Committee is not a body set up by- a private person in pursuance of some private enterprise but an incorporate body which has been established under the enactment passed by the Government. It is also well established that members of the Market Committee are nominated by the Government and its employees are considered to fall into the categories of public servants; therefore, it cannot be said that a market set up by a Market Committee in pursuance of its obligation, is setting up of a private market as envisaged under section 64 of the Municipal Administration Ordinance, 1960. With this unambiguous position, I have no hesitation to hold that both, the learned trial Court as well as the learned appellate Court have fallen into an error while dealing with this subject and have failed to appreciate the language of sections 63 and 64 of the Ordinance. The authority on which reliance has been placed by the learned Sessions Judge absolutely envisaged a different situation inasmuch as the petitioner in this case was running a private market and was bound to obtain a licence. In the instant case the petitioner, as mentioned earlier, is corporate body itself set up under the enactment of the Government, therefore, the authority cited by the learned Sessions Judge would not be applicable in this matter. It is also pertinent to note that word "private market" and "public market", has not been defined anywhere in the Municipal Administration Ordinance, 1960, therefore, its interpretation is to be made by the Court vis-a-vis the Agricultural Produce Market Committee Act.
6. While dealing with Criminal Misc. No, 2416 of 1966, an application for the quashment of proceedings under section 115/116 of the Ordinance pending in the Court of the Tehsildar, Chunian, it stands automatically accepted, in view of the fact that for the above reasons I am going to accept the revision petition and set aside the conviction and sentences of the petitioner.
Accordingly, I accept this application and quash the proceedings.
7. In the contempt proceedings, learned counsel for the respondents has pointed out that the respondents did not commit any contempt of Court for the reason that the impugned order was suspended by this Court on 19-1-1966 while contempt application was moved before this Court on 6-1-1966. In this view of the matter, I find that this is a misconceived application, which is hereby dismissed and the respondents are discharged of the notice issued against them.
8. In the light of the above discussion, I accept the revision petition, set aside the conviction and sentences of the petitioner and acquit it.