' This writ petition has been filed by the petitioner to call in question the order, dated 11-12-1988 passed by respondent No,1 wherein, the Sub-Registrar, Muzaffargarh was directed to make the recovery of an amount of Rs,61,600 from the petitioner as arrears of land revenue passed on the notice, dated 23-7-1988 and decision of respondent No,2, dated 3-10-1988.
2. Briefly stated the facts of the case are that the petitioner is a shop keeper in Main Bazar, Muzaffargarh. The Market Committee had issued a registered A.D. Notice to the petitioner on 29- 6.1988, directing him to get licence of the Market Committee. In response to the notice by the respondent No,2, the petitioner replied stating therein that he is not doing business of agricultural produce within the notified area of Market Committee, therefore, he is not entitled to obtain the Market Committee licence from the Market Committee. Without affording an opportunity of hearing the petitioner, respondent No,2 through a registered notice, dated 23-7-1988 demanded from him an amount of Rs,11,100 as licence and market fee to be paid within seven days.
Respondent No,2, then on 3-10-1988 decided to recover Rs,61,600 as five time penalty of the dues regarding the payment of market fee. Respondent No,1, then, vide order, dated 11-12-1988 directed Sub-Registrar, Muzaffargarh, to recover the above said amount from the petitioner as arrears of land revenue.
3.The petitioner has appeared in Court personally and contended that he has been punished without affording him an opportunity of being heard and that he is not dealing in business of sale and purchase of agricultural produce, therefore, no market fee is liable to be paid by him. He further contended that the respondents have not determined the liability of the petitioner to make the payment of disputed amount and he has not been declared as defaulter by the respondents.
4. On the other hand, learned counsel for the respondent/Market Committee has vehemently opposed the arguments of the petitioner and supported the order issued by the respondent No,1.
5. I have heard both sides and perused the record. Muzaffargarh is admittedly a notified area declared under section 4 of the Agricultural Produce Markets Ordinance, 1978. Subsection (3) of section 4 of the Ordinance has contemplated that "after the date of issuance 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.
' Provided that a licence shall not be required by a grower who either himself or through a bona fide agent sells his own agricultural produce or the produce of his tenant or by a person who purchases any agricultural produce for his private or domestic use; ".
6. This section has provided a licence for a person who for himself or on behalf of another person unless exempted by rules framed under this Ordinance establishes or uses any place for the purchase or sale of the agricultural produce. The main ingredients in the subsection is that a person who is required to obtain the licence must deal in sale and purchase of agricultural produce or store, process such agricultural produce and if a person is not dealing in sale and purchase for agricultural produce, he is not required to get a licence from the market committee.
7. It has been further provided in section 6 of the Ordinance that "any person who wishes to work as a dealer in a notified market area may apply on the prescribed form to the market committee concerned for a licence or for the renewal of the licence which shall be granted for such period, in such form, on such conditions and on payment of such fee not exceeding Rs,1,000 per annum as may be prescribed.
8. The word dealer' has been defined in section 2(B) of the Ordinance which is reproduced below:- " 'dealer' means any person who within the notified market area sets up, establishes, uses or allows to be used any place for the purchase or sale of the agricultural produce."
9. The petitioner has denied being a dealer. He contended that he himself has not been doing any business in the shop. The respondents neither produced on record any evidence showing the petitioner to be a dealer in accordance with the provisions of section 2(B) of the Ordinance, nor they have proved that the petitioner has been dealing in sale and purchase of the agricultural produce.
10. Section 19 of the Ordinance enumerates that a Market Committee may, subject to such rules as may be made by Government in this behalf, levy fees, not exceeding the maximum rates prescribed, on the agricultural produce bought or sold by or through a dealer in the notified market area; ' Provided that:--
(a) no fee shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is not actually made,
(b) no fee shall be leviable on a person who is not a party to a transaction;
(c) no fee shall be leviable in respect of any subsequent transaction of sale or purchases within the same notified area of an agricultural produce extracted after being subjected to manufacturing or processing."
11. From the plain reading of the above said provisions of law, it is manifestly clear that the Market Committee is empowered only to levy or charge fee on the agricultural produce bought or sold by or through a dealer in the notified market area and Rule 56 of the Agricultural Produce Markets (General) Rules, 1979 has empowered a Market Committee to impose a penalty for non-payment of fee which envisaged that if a person, firm or dealer habitually fails to deposit the market fee, the market committee on satisfying itself may charge any amount upto five times the fee as penalty.
The penalty is on non-payment of fee, if there is no market fee, no penalty can be charged from any person.
12. The respondent No,2/Market Committee has not determined the market fee nor there is any evidence that the petitioner has bought or sold any agricultural produce, if there is no purchase and sale of the agricultural produce by or through a dealer in the notified market area, no market fee is leviable. The respondent has determined Rs,10,100 as market fee but there is no evidence on record to establish that how much agricultural produce was bought or sold by the petitioner and from whom, the petitioner had bought or to whom he has sold the agricultural produce and which kind of produce.
13. For the purpose of levying market fee the following ingredients must exit--
(a) The commodity must be an agricultural produce.
(b) It must be bought or sold by licensees.
(c) It must be bought or sold in the notified market area.
(d) The fee shall be leviable only on the parties to a transaction.
(e) The transaction should be such in which delivery actually takes place.
(f) The fee becomes leviable as soon as an agricultural produce is bought or sold by a licensee.
' If any of the ingredients is missing, then, no fees is leviable by the market committee. There is no proof on the record that who were the parties of the transaction and the transaction should be such in which delivery has been taken place. The only evidence, on which, the respondent relying is the judgment of the Additional Sessions Judge, Muzaffargarh, on the appeal directed against the order of A.D.M./M.I.C., Muzaffargarh, dated 30-6-1986 convicting the petitioner under sections 34(1) and 34(3) of the Agricultural Produce Market Conunittee Ordinance, while passing the judgment, the appellate Court had inspected the site and during visit, some people appeared before him where they stated unanimously that the petitioner was running Karyana business without licence.
The Karyana business is not the business of agricultural produce and a person who deals in the sale and purchase of agricultural produce is required to obtain the licence under the provision of subsection (3) of section 4 of the said Ordinance.
14. From the scanning of the record, it reveals that the petitioner was not a dealer and he was not dealing in sale and purchase of the agricultural produce, on which, the market fee is leviable.
15. The petitioner was challaned by the Market Committee under sections 35(1) and 34(3) of the Ordinance, which have provided the penalties for contravening the provisions of sections 4, 9, 19 and 23 and liable to be convicted to pay a fine of Rs,1,000 and in case of continuing contravention, with a fine which, in addition to such fine as aforesaid,, may extend to one hundred rupees for every day, after the first date of conviction.
16. The conviction of the petitioner is not the subject-matter of the writ petition, therefore, I need not say anything on such conviction of the petitioner.
17. As discussed above, the respondents have not been able to prove the petitioner as dealer and dealing in sale and purchase of agricultural produce nor they have been able to establish that which kind of agricultural produce and how much quantity of the said produce was the subject- matter of the transaction. The respondents have not named the party with whom the petitioner had made the bargain of the agricultural produce. The matter having not been dealt with properly by the respondents. The petitioner had not been provided opportunity to establish his plea by producing his evidence. Reliance can be placed in this context on case of Sunshine Jute Mills v.
Market Committee, Sheikhupura 1988 CLC 2280. If this is so, the petitioner would not be liable to pay the market fee and if the fee is not leviable, then, penalty could not be imposed on him.
18. In view of the above, I have no hesitation in observing that the impugned notice, dated 23-7- 1988 decision of the Secretary, Market Committee, dated 3-10-1988 and order of respondent No,1, dated 11-12-1988 for the recovery of market fee and penalty amounting to Rs,61,600 have been passed without lawful authority and of on legal effect.
19. For the foregoing reason, this writ petition is accepted. The impugned notice, decision and order by the respondents are set aside. There F shall be no order as to costs.