This judgment shall decide Writ Petitions Nos,13248 of 1997, 20982 of 1998, 19952 of 1998, 21711 of 1998, 2813 of 1999, 2812 of 1999, 3390 of 1999, 22997 of 1998, 22973 of 1998, 19310 of 1998 and 22312 of 1998, as some what common questions are involved and were to be heard together.
2. Fruit and Vegetable Market located in the City Centre of Faisalabad, was sought to be shifted to a new site. The existing working Commission Agents agreed to the proposal and respondent Market Committee took steps to select new site. After some hectic efforts undertaken jointly by the Market Committee and the Association of the said Commission Agents a site was selected in Chak No,225/RB, the site so selected was approved by the Provincial Government on 27-10-1991 and the land was transferred in the name of the Market Committee vide Mutation No,274 attested on 31-10- 1991. An agreement was entered into between Market Committee and the said Association of Commission Agents for shifting of the market and allotment of the plots. Under rule 67 (6) of the Agricultural Produce Market (General) Rules, 1979, 70% of the plots in a newly-established market are to be reserved for allotment to the already working Commission Agents and while remaining 30% are to be disposed of in public auction. At this juncture litigation commenced. Some of the Commission Agents filed writ petitions wherein interim orders were granted resulting in stoppage of further development we in the proposed market. Later the interim ,orders were modified to enable the Market Committee to commence development work. After disposal of the writ petitions and the appeals arising out therefrom, development work was completed. At this stage the said Association of Commission Agents itself filed a writ petition challenging the reservation of 30% of the plots to be disposed of by action. This writ petition was later withdrawn. Meanwhile the Provincial Government in relaxation of rule 67 allowed the Market Committee to allot 80% of the plots to the Commission Agents instead of 70%. According to the report filed by the Market Committee there, are 280 plots and 80% of these i,e, 224 plots stands reserved for allotment to the Commissions Agents according to the list provided by the President of their Association while balance 56 plots are to be disposed of in open auction. It is in the said factual background that the above-mentioned writ petitions have been filed when allotments were made on the basis of balloting held on 9-9-1998 as per list provided by the said association.
3. Except for Writ Petitions Nos,22312 of 1998 and 19310 of 1998, in all other writ petitions it has been complained by the writ petitioners that their names have been omitted from the list of Commission Agents filed by their Association. In Writ Petition No,22312 of 1998 the Association of Pharias has claimed that they should also be allotted shops in the market. In Writ Petition No,19310 of 1998 the petitioners have - been allotted shops but they questioned the list on the ground that the list had been signed only by the President of their Association.
(i) Writ Petition No,13248 of 1997 Mr.Abdul Karim Malik, learned counsel for the petitioner in this case contends that a license was issued in favour of Firm of Muhammad Younas and Miraj Din as far back as on 2-3-1957 and the Firm was working as Commission Agent under the said licence. After promulgation of the Punjab Agricultural Produce Market Ordinance, 1978, the licence was issued under the provisions of the said Ordinance on 11-1-1982 and was continuously renewed. After the death of Miraj Din, the father of the petitioner, on 19-4-1992 the licence was transferred in the name of the petitioner who became sole Proprietor of the said concern and had been working as a Commission Agent. He applied for the inclusion of his name in the list of the Commission agents prepared for the purposes of allotment of the plots in the said new Market vide application Annexure-I. This application was referred to a. Magistrate by the Deputy Commissioner Faisalabad, for verification vide letter dated 14-10-1996 (Annexure-J). The said Magistrate made a spot verification and reported that although the petitioner holds a valid licence renewed upto 31-12-1996 and is working as Commission Agent but the shop is outside the prescribed limits although adjacent to the market. This report, was made vide Annexure-K. To similar effect was the report of Assistant Director Local Government (Annexure-L). The certificates issued by the Chief Inspector and Secretary Market Committee Faisalabad, were also relied upon which are Annexures-M and N.
Learned counsel contends that despite the said established facts, the name of the petitioner was not included in the list. According to the learned counsel under said Ordinance a notified market area and a market are two separate concepts. Whereas a notified market area means area notified in terms of section 4 of the said Ordinance, a market means a building or block of buildings, enclosure or other area which may be notified in accordance with rules framed under the said Ordinance. This contention is with reference to the definition of the terms contained in section 2(j) and section 2(I) of the said Ordinance. Learned counsel contends that a dealer has been defined in section 2(b) of the said Ordinance as a person who uses or allows to be used and sets up or establishes any place for purchase or sale of Agricultural Produce within notified market area. With reference to rule 67 of the Rules framed under the said Ordinance learned counsel contends that a market is to be established in a notified market area. The precise contention of the learned counsel is that it was not necessary for his client to have conducted a business in a market and it was enough if he was doing business in a market area, particularly when reports were that his shop is adjacent to the market.
The Market Committee in its comments has on which the request of the petitioner was denied i.e the shop not being within market, the response of the respondent Market Committee is that it has no record and master plan of the existing Fruit and Vegetable market. The issuance of the licence in the manner stated and renewal thereof uptodate is admitted. Now in the said factual, background Mr.Ijaz Ahmad Awan, learned counsel for Market Committee has sought to argue that the petitioner had not been doing his business as working Commission Agent. I am afraid, that in view of the admission contained in reply filed by the Market, Committee in response to the notice issued by this Court, the said contention of the learned counsel for the respondent would not be entertainable. It is true that the rule of secundum allegata et probata would not be applicable to the proceedings in a writ petition in too strict terms but in the present case the concerned officials of the Market Committee have certified that the petitioner is doing business of Commission Agent while the Magistrate deputed by the Deputy Commissioner Faisalabad, had verified on the spot that he is doing business as stated by him. Now these correctness of these reports and certificate has not been questioned by the respondent-Market Committee. In this view of the matter I do find that the petitioner was entitled to be considered for the allotment of shop/plot in the new market in accordance with law and rules and the arrangements made by the Association and the respondent-Market Committee for the allotment of plot in the new Market. I may state here that by means of interim order dated 6-6-1997 this Court had directed the respondent-market Committee to keep a shop reserve for the benefit of the petitioner.
(ii) Writ Petitions Nos,21711 of 1998, 20982 of 1998, 2812 of 1999, 3390 of 1999 and 22997 of 1998. In all these cases, as per contents of the writ petitions and copies of the licences attached therewith, I find that the licences were obtained at a point of time after ultimate acquisition of the site by Market Committee and the Association and decision made in the writ petition filed by some aggrieved Commission Agents. Otherwise there is no material on record in support of claim of these petitioners that they were "already working. Commission Agents" within the meaning of rule 67(6) of the said Rules so as to entitle them to the allotment of plots reserved for the purpose.
(iii)Writ Petition No,19952 of 1998. In this writ petition the licence was issued on 1-1-1982 but it stands admitted in the writ petition itself that Muhammad Sharif ' was brought in on 22-1-1996 in this case also there is no material on record that the petitioner was a working Commission Agent within the meaning of said rule 67(6).
(iv)Writ Petition No,2813 of 1999. In this case licence was issued on 13-4-1985. However, there is no material on record to show that the petitioner was working as a Commission Agent within the meaning of said rule 67(6). Besides, it has also come on record that it was only in the year 1985 that the market fee of Rs,95 was paid by this petitioner and thereafter there had been no business activities whatsoever.
(v)Writ Petition No,22973 of 1998. In this case the licence was issued on 13-4-1985. However, it has been brought on record that it was only in the year 1996 that the market fee of Rs,90 was paid by the petitioner otherwise there had been no business activity for the year preceding and following 1996. There is otherwise no material on record to show that the petitioner was a working Commission Agent within the meaning of said rule 67(6).
(vi)Writ Petition No,22312 of 1998. The petitioner in this case is an Association of Pharia. I called upon Mr.Kazim Khan, learned counsel for the petitioner in this case to demonstrate as to how his clients are dealers within the meaning of section 2(b) or grower (section 2(g) of the said Ordinance. Learned counsel is unable to do so. Mr.Ijaz Ahmad Awan, Advocate, on the other hand has explained that Pharia is neither a dealer nor grower, rather is a person who acts as sort of middle man between the two. There is accordingly no forte in this writ petition.
(viii)Writ Petition No,19310 of 1998. In this case the petitioners have admittedly been already allotted shops in the market. Mr. Kazim Khan, learned counsel for the petitioners insists that list (Annex-B) is signed only by the President of the Association of the petitioners whereas it was required to be signed by all the Members of the Allotment Committee mentioned in Annexure-D. Mr.Ijaz Ahmad Awan and Mr. M.A.Zafar, Advocates, on the other hand argue that the first instance there is no requirement at all for signing of the list by all the members of the Allotment Committee and in the second the original list present in records of the Market Committee does bear the signatures of all the said persons.
4. I have given some thoughts to the said respective contentions. I ,find that learned counsel for the petitioner has not been able to demonstrate as to under which provision of law, some rules of the Association or some agreement the list was required to be signed by all members of the Market Committee. On the other hand having examined Annexure-D which in fact is a document constituting an allotment/auction Committee, I find that there would be no occasion for any of the said 5 members mentioned in the said document to sign the said list except of course President of the petitioner's Association. The writ petition is accordingly found to be without any force.
5. In view of the above discussion, the Writ Petitions Nos,20982 of 1998, 199552 of 1998, 21711 of 1998, 2813 of 1999, 2812 of 1999, 3390 of 1999, 22997 of 1998, 22973 of 1998, 19310 of 1998 and 22312 of 1998 are dismissed.
6. Writ Petition No,13248 of 1997 is disposed of with a direction that the Market Committee shall consider the petitioner for allotment of shop ordered to be reserved by this Court, in accordance with law, rules and arrangements for allotment of the shops in the new Market. No order as to costs.