The instant Writ Petition No, 14393 of 1999, as also Writ Petitions Nos,16452 of 1999, 16469 of 1999, 17028 of 1999, 17029 of 1999, 18428 of 1999, 18429 of 1999, 10731 of 2000 and 118 of 2002, are being disposed of together as being connected matters.
2. Dispute raised in the present petitions , relates to the transfer of 25 plots out of 30% quota of the plots meant for the allotment to the growers through public auction as required by proviso to rule 67(6) of the Punjab Agricultural Produce Markets (General) Rules, 1979, (hereinafter called as Rules).
3. The above dispute has arisen in the background that the Government decided to establish new Fruit and Vegetable Market at the site named as "Noshehra Sansi Bypass", Gujranwala and for the purpose of allotment of plots in the newly established Market, constituted an Allotment Committee, vide letter dated 2-1-1986: It may be pertinent to State here that about 200 plots in the said Market, were available for. allotment, out of which, 30% quota i,e, 60 plots, was meant for the purpose of sale to growers, but according to the provisions of the Rules mentioned above, this sale could only be made through public auction. However, in-deviation thereof, the respondent No,1, who is stated in the petition to be the brother of an M.P.A., secretly after obtaining a resolution of the Market Committee, allotted 25 plots to the respondents Nos,2 to 26 and addressed the letter dated 26-3- 1991 to the Agriculture Minister, Punjab for the ex-post facto sanction. In the said letter, it is mentioned as follows:-- "Keeping in view the importance of the matter, it is submitted for the ex post facto sanction by the Government. Therefore, it is requested that the approval for the above mentioned allotment may kindly be granted for relaxation of rule 67 of the Punjab Agricultural. Produce Markets (General)
Rules, 1979."
On the above letter, Deputy Secretary, Government of the Punjab Agricultural Department, issued an order dated 24-4-1991 reading as follows: "In exercise of powers vested under rule 72 of the Punjab Agricultural Produce Markets (General)
Rules, 1979, sanction is hereby granted in relaxation of rule 67 (ibid), to allot 25 plots to growers in newly established Fruit/Vegetable Market Gujranwala at a price fixed by the Market Committee in accordance with the regulatory provisions of Punjab. Agricultural Produce Markets Ordinance and the Rules framed there under."
On the basis of above, the said plots were transferred/allotted to the respondents Nos,2 to 26. One Ch. Muhammad Arshad Waheed, who was nominated as a Member on behalf of Fazal Fruits and Vegetable Market, challenged the orders in Writ Petition No,12856 of 1995, in which, comments were called from the official respondents and the petition was admitted to regular hearing on 12-10- 1995. Status quo was also ordered to be maintained pending the writ petition Petitioner No,1, who is President of Jadeed Vegetable Market, Sheikhupura Road, Gujranwala and licensed Commission Agent, filed an application to be impleaded as a party to said writ petition. But the writ petition was withdrawn by Ch. Muhammad Arshad Waheed. Resultantly impleadment application could not be decided and thus, the present petition was filed.
4. In the other writ petitions, the petitioners are the persons, who were originally allotted slots out of the 25 mentioned earlier, but subsequently, their allotments have been cancelled and they have challenged this action . ,of the Market Committee.
5. Learned counsel for the petitioners while arguing the case, has submitted that the proviso to rule 67 (6) of the Rules, clearly envisages that the quota meant for the growers could only be disposed of through a public auction: the allotments were made in breach of the above rule, which is absolutely' illegal and without jurisdiction. It is also submitted that the Minister Government of Punjab Agricultural Department, to whom the letter dated 26-3-1991 was addressed by the Administrative Market Committee, Gujranwala, had no authority or power to grant ex post facto sanction or to relax the rules. This power is only vested with the Government, and is circumscribed by certain conditions, which have not been adhered to while passing the impugned order; there is no application of mind by the Government, while relaxing the rules through order dated 24-4-1991 and such order is not only mechanical in nature, but also result of dictated exercise of jurisdiction, having been passed on the behest of Minister Government of Punjab Agricultural Department, who had no business to interfere in the matter. On the strength of above, the allotments made in favour of the respondents Nos,2 to 26, have been sought to be cancelled.
5. Mr.M.A. Zafar, Advocate, appearing on behalf of the Market Committee has explained the position, that though 25 plots were allotted to the respondents Nos,2 to 26, but subsequently, another committee was constituted and this committee has cancelled -certain plots, which is the subject-matter of other petitions; anyhow, out of 60 of the total plots, subsequently, through open auction held on 1-1-1998, 18 plots have been disposed of, while 23 plots have been disposed of through same process on 8-9-1999; in this manner, 41 plots have already been sold through open auction to the growers and only 19 plots now remains, allotted to the private respondents in pursuance of the resolution of the Market Committee and the order of the Government dated 24- 4-1991.
6. Moreover, Mr. M.A. Zafar, Advocate has also raised two preliminary objections, firstly that the present petition is hit by the principle of laches, because the allotment order pertaining to the year 1991. has been challenged through the petition filed in the year 1999; besides that according to rule 21, the petitioners had an alternate remedy of filing an appeal, which has not been availed.
7. Arguments heard. Firstly, I would like to dispose of the preliminary objections. As regards the issue of laches is concerned, ,suffice it to say that according to the petitioner, the impugned allotments were kept secret for considerable period of time, however, on learning about the same, Ch. Muhammad Arshad Waheed, who was the representative for another group filed a petition, in which, petitioner No, 1 moved an application for impleadment as. party. but this petition was subsequently withdrawn and thereafter, the present petition has been filed. This clearly shows that the petitioner had always felt aggrieved of the above orders of allotment, when those came to their knowledge. Besides, as for the reasons to follow, the impugned allotments are being declared patently illegal, in colourable exercise of jurisdiction and without lawful authority, therefore, while exercising the Constitutional jurisdiction, for equitable and fair dispensation of justice, the delay in filing this petition has no much relevance, thus, the objection is overruled. As regards the other plea that the petitioners have an alternate remedy as per rule 21 of the Rules, suffice it to say that such rule does not provide the remedy of appeal to the petitioners, when the order has been passed by the Government in granting ex post facto sanction, while relaxing the rules under rule 72, therefore, this objection has no force.
8. Now coming to the main case, according to the provisions of rule 67(6) of the Rules, 30% quota was reserved for the growers and such allotment/sale could only be made through a public auction. This has not been done, rather the Administrator respondent No,1, who had no authority, made the allotment in breach of the rules and thereafter, applied to Minister Government of the Punjab Agricultural Department for the ex post facto The Minister was not the government within the purview of law and had no authority to dictate to the Government for the relaxation of the rules.
Nothing has been brought on the record by the respondents to rebut the allegations of the petitioners that the order dated 24-4-1991 has been passed by the Government in colourable exercise of jurisdiction and on the command of the Minister. There is also no material to show if, proper application of mind was made at the appropriate level in the Government and the conditions laid down in rule 72 were fulfilled. According to this rule, relaxation cannot be made as a matter of course, but for the reasons to be recorded in writing, the order dated 24-4-1991, does not mention any reason, why the ex post facto sanction was being granted. Besides, the rules can only be relaxed in individual cases, where the Government is satisfied that strict application of the rule would cause hardship to the individuals concerned. Again, this aspect of the matter, is conspicuously missing. No material about the satisfaction of the Government to relax the :We 67 is postulated in the matter impugned before this Court. On the basis of above, it is absolutely clear that the allotment of 25 plots had been made for extraneous consideration by breaching the proviso to rule 67(6) and the relaxation of rule ex post facto sanction is a colourable exercise of jurisdiction without meeting the requirement of rule and that too not by the Government, rather on the dictation of the Minister. Such order cannot be sustained, therefore, by accepting this petition, the impugned orders making the allotment of 25 plots are declared to have been passed without lawful authority and are set aside with the result that all the allotments made on the basis thereof, stand cancelled. However, as pointed out by Mr. M.A. Zafar, Advocate that through subsequent allotment, 41 plots have been disposed of through open auction and only 19 of the disputed plots remains in issue, therefore, this order would apply only to the extent of 19 plots.
9. As regards the other writ petitions, suffice it to say that because of the acceptance of the noted writ petition, all these writ petitions cannot be allowed for the reason that the allotments of all the 25 plots including the plots qua which, the other writ petitions pertain, have been declared to have been allotted without jurisdiction and lawful authority, therefore, these petitions are hereby dismissed.