' HAMID ALI MIRZA, J.---These two separate civil petitions for Leave to Appeal Nos.322-K of 1999 and 239-K of 1999 are directed against the common order dated 8-12-1998 passed in Constitutional Petitions Nos.D-392 of 1994 and D-2161 of 1996 respectively, whereby both the Constitutional petitions were dismissed by learned Division Bench of the High Court of Sindh at Karachi, hence these petitions.
2. In Civil Petition No,322-K of 1939 (M/s. Matiari Sugar Mills Limited v. Government of Sindh), petitioners are engaged in the business of manufacturing and sale of sugar and carrying out the Industrial undertaking/factory' at Matiari, wherein they have prayed in their Constitutional petition as under:--
(i) Strike down section 19 of the Agricultural Produce Markets Act, 1939 and rule 29 of the Agricultural Produce Markets Rules, 1940 or any other provision therein imposing a levy as void ab initio, illegal, unconstitutional and of no legal effect.
(ii) Strike down the Agricultural Produce Markets Act, 1939, as void ab initio and of no legal effect or alternatively hold the same to be inapplicable to the petitioner.
(iii) Strike down the impugned notification under section 4 of the Act of 1939 or any other allied notification.
(iv) Declare and hold the respondent's insistence to the petitioner to obtain licence and pay the Market Committee fees as illegal.
(v) Hold that the Market Committee fees is exorbitant, expropriatory and confiscatory in nature and hence unconstitutional;
3. In Civil Petition No,239-K of 1999 petitioner No,1 claimed to be an Association of individuals and corporate entities owing flour mills, while petitioner No,2 Asio African Company are a private company owning flour mills in S.I.T.E., Karachi, wherein they have prayed in their Constitutional Petition No,D-2161 of 1996 for declaration as follows:--
(i) Declare that the provisions of section 19 of the Agricultural Produce Markets Act, 1939 read with rule 29 of the Agricultural Produce Markets Rules, 1940 and all other provisions in the said Act and the said Rules supporting levy of market fees as provided under the said section 19 and the said rule 29 are ultra vires the powers of the respondents and without the authority of law and of no legal effect;
(ii) respondents be refrained from claiming, demanding or recovering any sum as market fees under section 19 read with said rule 29 and all other sections and rules supporting the levy of market fees as provided under the said section 19 and the said rule 29 and all other provisions of the said Act and the said Rules;
(iii) respondents be refrained from requiring or compelling the members of the petitioner No,1 including petitioner No,2 to apply for and obtain licences as dealers under the said Agricultural Produce Markets Act, 1939 and the said Agricultural Produce Markets Rules, 1940.
4. Both the petitions were heard by learned Division Bench of the High Court of Sindh and were dismissed by a common impugned judgment on the ground holding that:--
(i) Ordinance No,XXII of 1964 amending Punjab Agricultural Produce Markets Act extending the aforesaid Act to the entire Provinces of West Pakistan was admittedly approved by the Provincial Assembly through a resolution as per Gazette Notification dated 31-12-1964;
(ii) section 19(1) of the Agricultural Produce Markets Act, 1939 enables a market committee to levy a fee on agriculture produce and the same cannot be described as tax;
(iii) provisions of section 3 of the said Act, 1939 being procedural in nature could not be mandatory and its non-compliance having caused no prejudice to the petitioner would not vitiate the notification under section 4 of the said Act;
(iv) levy of fees was imposed by market committee itself while it, was in existence prior to 22-11- 1993 viz. The date whereunder the market committee was superseded, therefore, the officer appointed was only performing the functions of ministerial act of effecting collection of the fees, therefore, there was no violation of dictum laid down by this Court in the case of Fauji Sugar Mills v.
Market Committee (1988 SCMR 155);
(v) no data was provided by the petitioners to show that fees charged did not commensurate with the quantum of services provided.
5. We have heard Mr. Muhammad Naseem, learned counsel for the petitioner in C.P. 322-K of 1999, Mr. Gulzar Ahmad, learned counsel for the petitioners in C.P. 239-K of 1999, Mr. S. Zaki Muhammad, learned Deputy Attorney-General for Pakistan, Mr. Suleman Habibullah, learned Additional Advocate-General, Sindh, Mr. Ghiasuddin Mirza learned counsel for the Market Committee, Karachi, and Mr. Ansari Abdul Lateef, learned counsel for the Market Committee, Hala at length and perused the record minutely.
6. Mr. Muhammad Naseem, learned counsel for the petitioners in C.P. No, 322-K of 1999 has submitted that after the decision of the learned Division Bench, as per impugned judgment, he preferred a Review Petition No,5527 of 1998 which was also dismissed in limine on 4-2-1999 whereafter present petition for leave to appeal was filed on 24-5-1999. He submitted that "tax" in general would mean "fee" as well. Word "fee" used in broad sense would include "tax". He also submitted that as per Fourth Schedule to the Constitution hem No,49 "taxes on sales and purchases of goods imported, exported, produced, manufactured and consumed" could be imposed while under Item No,54 "fees in respect of any of the matters in the said part, but not including fees taken in any Court" could be levied, therefore, such levy or charge or imposition could be made or dealt with by the Federal Government under the Fourth Schedule of the Federal Legislative List, therefore, the Provincial Government cannot levy or impose fees or taxes under the said Act, 1939. He has referred to sections 9 and 19 of the Agricultural Produce Markets Act, 1939 (hereinafter referred as the said Act) so also has placed reliance upon (i) Muhammad Bhai Khudabux Chhipa and another v. The State of Gujarat and another (AIR 1962 SC 1517 at 1530), (ii)
State of Orissa and another v. M/s M.A. Tulloch & Co. And others (AIR 1964 SC 1284 at 1292) (para. 16), (iii) Noon Sugar Mills Ltd. v. Market Committee and others (PLD 1989 SC 449 at page 462 (para. 19), (iv) Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), (v) Rahimullah Khan and others v. Government of N.-W.F.P. And others (1990 CLC 550), (vi) Abdul Majid and another v. Province of East Pakistan and others (PLD 1960 Dacca 502), (vii) Fauji Sugar Mills v.
Market Committee, Tando Muhammad Khan and another (1988 SCMR 155), (viii) Peninsular and Oriental Steam. Navigation Co. v. Pfizer Laboratories Ltd., Karachi and others (1980 CLC 1972), (ix)
Gul Muhammad v. Allah Ditta (PLD 1960 Lahore 443), and (x) Messrs Homes Limited, Karachi v. The Commissioner of Income-Tax (Appeals)) Zone-V, Karachi and others (1985 SCMR 1801). He submitted that no service was provided by the Market Committee, therefore, there could not be any demand for fees as such notice for demand was illegal. He further submitted that there was no Market Committee during the years 1991 to 1999, therefore no demand could be made in respect of "fees" considering also that there was no provision for the recovery of arrears of market fees. He also submitted that petitioners' mill is situated in Market Committee, Matiari whereas demand has been made by Market Committee, Hala when the former Market Committee was also dissolved. He submitted that no demand was made from 1992 to 1999 when Market Committee was created only on 29-4-1998. He also contended that the demand has been made in violation of rules. He has referred to rule 30 of the said Rules, 1940 contending that requirement of said rule was not complied with. On the point of limitation learned counsel for the petitioners submitted that petition was within time from the date of receipt of the certified copy of the judgment and further that he has not received the first copy and that there was nothing on record to show that first copy was ever received and was filed with the review petition. Mr. Gulzar Ahmad, learned counsel for the petitioners in C.P. 239-K of 1999 adopted the arguments advanced by Mr. Muhammad Naseem, A.S.C.
7. Mr. Ansari Abdul Lateef, learned counsel for the Market Committee, Hala, submitted that the impugned judgment was passed on 8-12-1998 against which, in the first instance review petition was preferred which could have been preferred within 90 days and the said review was dismissed on 4-2-1999 and in the said review petition the petitioners must have filed certified copy of the judgment, therefore, filing of petition for leave, to appeal before this Court on 24-5-1999 was beyond prescribed period of limitation, therefore, on the said account petition was liable to be dismissed. On merits of the case he has referred to the preamble of the said Act and section 2(a),
(aa) to show that the petitioners were dealers and were dealing with agriculture produce, therefore, liable to pay market fees. He has referred to a Notification dated 1-11-1983 issued by the Government of Sindh appearing at page 124 of the paper book wherein Matiari Market Committee, after its dissolution got its assets and liabilities transferred to Hala Market Committee and thereby Matiari Market Committee merged with the Hala Market Committee. He submitted that Matiari was declared Taluka in the year 1988 as per Notification dated 28-1-1988 issued by the Government of Sindh appearing at page 73 of the paper book. He also submitted that Matiari is a part of Taluka Hala and would fall within the jurisdiction of Market Committee Hala. He has referred to section 4 of the said Act whereunder a dealer in a notified market area has to apply for a licence which is to be issued on payment of fees and has also referred to rule 6 of the said Rules 1940 dealing with the subject person desiring to obtain licence under section 6. He has also referred to a schedule at page 60 of a book on "Agricultural Produce Markets Act, 1939 and Rules 1940 printed by Bureau of Supplies and Prices, Government of Sindh" wherein licence in respect of Group A, Sugar Mill, Flour Mill besides other factories and mills have been mentioned who have to obtain licence on payment of fees. He has also referred to page 20 of Schedule whereunder as per clause (a) of section 2, sugarcane and wheat have been declared to be agricultural produce. He submitted that as per demand notice dated 17-7-1993., at page 82 of the paper book, the petitioners were asked to obtain licence under section 6 of the said Act and also to make payment of fees at the rate of 0.40 paisa for wheat and 0.25 paisa for sugarcance per 50 kgs. In respect of purchase of wheat and sugarcane of their respective mills under section 19, and section 27(vii) and (xxiv) of the said Act read with rule 29(2)(11)(i) and (ii) respectively of the said Rules, 1940. He has also referred to letter dated 9-8-1993 sent to the General Manager of the petitioners reiterating their earlier demand to fulfil their legal obligation under the said Act (page 84 of the paper book). He has also referred to a letter dated 14-9-1993, at page 89 of the paper book, wherein the Secretary of Market Committee Hala informed the petitioners' General Manager that latter was unnecessarily avoiding to obtain licence and pay market fees and further inviting their attention to the law laid down by this Court in Noon Sugar Mills (PLD 1989 SC 449) with regard to payment of licence fee and market fee which were held to be legal. Again letter dated 31-10-1993 (page 91 of the paper book) was sent to the petitioners reiterating their demand of payment. He also referred to letter dated 29-12-1993 in respect of payment of market fees sent by the respondent's Assistant Director Agriculture Marketing, Hyderabad to the petitioners Director. He `submitted that fees was levied by the respondents as per sub-rule (3) of rule 30 of the said Rules 1940 on the basis of returns/bills secured for the Cane Commissioner. He also submitted that in view of subsection (2) of section 33- A of the said Act in case Market Committee is dissolved, all properties, funds and dues which were immediately before the said date of dissolution vested in and realizable by the Market Committee would vest in and realizable by Government or such authority as be specified in the Gazette and all liabilities which were immediately before the said date would be enforceable against the Market Committee should be assumed by, and be enforceable against, Government or the aforesaid authority, as the case may be. He has placed reliance upon (i) Noon Sugar Mills Ltd. v, Market Committee and others (PLD 1989 SC 449), (ii) M/s. Mirpurkhas Sugar Mills Limited v. Government of Sindh through Chief Secretary, Sindh and others (1993 SCMR 920), (iii) Bawany Sugar Mills Ltd. v.
Market Committee, Badin and another (PLD 1983 Karachi 1) and (iv) PLD 1973 Lahore 1284.
8. Mr. Suleman Habibullah, learned Additional Advocate-General, Sindh, adopted the arguments of Mr. Ansari Abdul Lateef counsel for the respondent, so also Mr. S. Zaki Muhammad, learned Deputy Attorney-General and Mr. Ghiasuddin appearing for the Market Committee, Karachi who besides the case-law cited by Mr. Ansari Abdul Lateef, learned counsel for the Market Committee, Hala has placed reliance on Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402) and Pir Bakhsh and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145).
9. In view of very able arguments advanced by learned counsel for the parties following would be the main legal points for disposal of these petitions:--
(i) Whether the Provincial Legislature has power and authority to impose market fees under section 19 of the Act, 1939 read with rule 29 of the Agricultural Produce Market Rules, 1940 (hereinafter called the said Rules)?
(ii) Whether the petitioners could be provided services as laid down in the said Act and the Rules by respondent No,2 (Chairman, Market Committee, Hala) when the former have failed to perform their obligation with regard to the payment of required fees under the said law and the Rules? And
(iii) Whether the respondents could legally demand market fees though the market committee stood dissolved as per Notification dated 22-11-1993 and administrator having been appointed under section 25-A of the said Act?
10. So far the first point, the petitioners' learned counsel submitted that the so-called market committee "fees" would fall under Items Nos.49 and 54 of Federal Legislative List, Fourth Schedule, Article 142 of the 1973 Constitution, therefore, power to impose fees vested in the Parliament and not in the Provincial Assembly consequently latter had no authority in law to impose fees, therefore, its demand by the respondent was without jurisdiction. We do not find substance in the submissions made by the, learned counsel for the petitioners.
11. Article 142 of the Constitution of the Islamic Republic of Pakistan, 1973 reads:-- "142. Subject-matter of Federal and Provincial Laws.--Subject to the Constitution.--
(a) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to any matter in the Federal Legislative List;
(b) Majils-e-Shoora (Parliament), and a Provincial Assembly also, shall have power to make laws with respect to any matter in the Concurrent Legislative List;
(c) A Provincial Assembly shall, and Majlis-e-Shoora (Parliament) shall not, have power to make laws with respect to any matter not enumerated in either the Federal Legislative List or the Concurrent Legislative List; and
(d) Majls-e-Shoora (Parliament) shall have exclusive power to make laws with respect to matters not enumerated in either of the Lists for such areas in the Federation as are not included in any Province."
' After reading the above provisions of the Constitution it could be said that the Parliament can legislate or make laws on matters specified in Federal and Concurrent Legislative List while the Provincial Assemblies have been given residuary powers so that they can make/legislate in the concurrent field and also in all other matters not included in the Federal Legislative List. Item No,49 of Fourth Schedule of the Federal Legislative List deals with framing of laws with regard to taxes on sales and purchases of goods imported, exported, produced, manufactured and consumed, while Item No,54 of the said list deals with framing of laws with regard to the fees in respect of any matter in the said part of Federal Legislative List but would not include fees taken in any Court.
Taxes and fees have been defined by this Court in the case of Collector of Customs and others v.
Sheikh Spinning Mills (1999 SCMR 1402) as under:-- ' "As far as fee is concerned, it is distinguishable from tax. The distinction between 'tax' and 'fee' lies primarily in the fact that a tax is levied as a part of common burden while a fee is paid for a special benefit or privilege. Fees confer a special capacity although the special advantage as for example, in the case of registration fee for documents or marriage licence is secondary to the primary motive or regulation in the public interest. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit, which the individual receives. It is the special benefit accruing to the individual, which is the reason for payment in the case of fees. In the case of a tax, the particular advantage if it exists at all, is an incidental result of State action. Unless the fee is earmarked or specified for rendering services to the payee, it would amount to a tax and not a fee.
' On the other hand the nature of tax is entirely different. Tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered.
A fee may be generally defined to be a charge for a special service rendered to individuals by some governmental agency.. A fee may be compulsorily levied as well as tax, but the distinction between them lies primarily in the fact that a tax is levied as a part of the common burden while a fee is a payment for special benefit or privilege.
' The term 'tax' is a charge by the Government on the income of an individual corporation or trust as well as the value of the estate or goods. The objective necessitating the tax is to generate revenue to be used for the needs of public; a pecuniary burden laid upon individual or property to support the Government and is a payment exacted by legislative authority. According to this dictionary the essential characteristics of a tax are that it is not a voluntary payment or donation, but an enforced contribution, exacted pursuant to legislative authority. The tax is a sum of money demanded by a Government for its support or for specific facilities, a burdensome charge, obligation or demand in consideration of the possession or occurrence of income, goods, sales etc. 'Fee' a charge or payment for services as doctor's fee, a sum paid or charged for a privilege, such as submission fee, a charge allowed by law for the services of a public officer. 'Tax' is a compulsory contribution imposed by sovereign authority and received from the general body of subjects or citizens. 'Fee' is a charge for special services rendered to individual by some Governmental Authority. It is a sort of return or consideration for services rendered and therefore, it is necessary that the levy of fee should, on the face of legislative provision, be correlated with the expenses rendered by the Government in rendering the services. No doubt both tax and fee are compulsory exactions, but the difference between the two lies in the fact that the tax is not correlated to a particular service rendered, but is intended to meet the expenses of the Government and a fee is meant to compensate the Government for expenses incurred in rendering services to the person from whom fee is collected. A tax is for the purpose and goes to the general revenue unlike fee.
' 'Fee' is a reward or recompense for service while tax is impost; a tribute imposed on the subjects. It is compulsorily exacted from the citizens for the support of the Government.
' ....Although the Federal Legislature is competent to legislate for the imposition of fees within the meaning of Entry 54, in the Federal Legislative List, Fourth Schedule to the Constitution, one has to see what is the nature of the legislation and whether the same could have been legislated within the ambit of the powers of the Federal Legislature. No doubt, legislation can be made to impose fee in respect of any of the matters in the Federal Legislative List, but definitely not pre-shipment inspection, the benefit of which has to go to the companies appointed to carry out the inspection and not to the payees of the fees. The imposition of such fees is not in lieu of services to be rendered for the benefit of its payees."
After reading Items Nos.49 and 54 of the Federal Legislative List and items/entries provided in the Concurrent Legislative List one could say that the subject-matter of the imposition of fees on the agricultural produce does not fall substantially within any of the Legislative List, therefore, in view of sub Article (c) of Article 142 of the Constitution of Pakistan, 1973, Provincial Assembly could legislate/make the laws with respect to the matters not enumerated in either the. Federal Legislative List or the Concurrent Legislative List. Admittedly if the pith and substance of the said Act is to be examined in view of the definition of "fee" and "tax" as defined by this Court in Collector of Customs and others v. Sheikh Spinning Mills (1999 SCMR 1402), the said imposition would be fees and not tax considering special services to be rendered by the respondents and the fact that collection of said fees being not appropriated by the Government for general revenue purposes but for the better regulation of the purchase and sale of agricultural produce and the establishment of markets and for proper administration thereof within the province. In M/s. Mirpurkhas Sugar Mills Limited v. Government of Sindh through Chief Secretary and others (1993 SCMR 920), this Court at page 927 in para. 11 has observed as under:- "11. Scheme of the A.P.M. Act, 1939 shows very clearly that it has been enacted for better regulation for purchase and sale of agricultural produce and establishment of markets for that purpose mainly to give protection to the growers from unscrupulous businessmen and to afford facilities to them so that they can obtain a fair price for their produce."
' The Punjab Agricultural Produce Markets Act, 1939 was amended through West Pakistan Amendment Ordinance, XXII of 1964, which was approved by the then West Pakistan Provincial Assembly vide Gazeatte Notification dated 31-12-1964. Thereafter, it became West Pakistan Agricultural Produce Markets Act, 1939 and it was extended to the then whole of Province of West Pakistan except the Tribal Areas. Thereafter, Province of West Pakistan was dissolved through West Pakistan (Dissolution) Order, 1970 vide President's Order No,1 of 1970, which was notified in the official Gazette of Pakistan on 30-3-1970. Article 19 of the President's Order No,1 reads as follows:-- "19. Continuation and adaptation of existing law.---(1) Except as expressly provided by or under this Order all existing laws shall continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature or other Competent Authority.
(2) For the purpose of bringing the provisions of any existing law into accord with the provisions of this Order, in relation to laws in the Central Legislative field, the President, and in relation to other laws, the Governor of the Province concerned, may by order, make such adaptations, whether by way of modification, addition or omission, as he may deem necessary or expedient, and any order so made shall, unless otherwise provided therein take effect or be deemed to have taken effect on the appointed day.
(3) Any Court, Tribunal or Authority . Required or empowered to enforce an existing law shall, notwithstanding that no actual adaptations have been made in such law by an order made under clause (2), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of this Order."
' Thereafter, Constitution of Islamic Republic of Pakistan came into force, wherein Article 268 of the same reads as under:- "268. Continuance in force, and adaptation of, certain laws.--(1) Except as provided by this Article, all existing laws shall, subject to the Constitution, continue in force, so far as applicable and with the necessary adaptations, until altered, repealed or amended by the appropriate Legislature.
(2) The laws specified in the Sixth Schedule shall not be altered, repealed or amended without the previous sanction of the President.
(3) For the purpose of bringing the provisions of any existing law into accord with the provisions of the Constitution (other than Part II of the Constitution), the President may by Order, within a period of two years for the commencing day, make such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient, any such Order may be made so as to have effect from such day, not being a day earlier than the commencing day, as may be specified in the Order.
(4) The President may authorise the Governor of a Province to exercise, in relation to the Province, the powers conferred on the President by clause (3) in respect of laws relating to matters with respect to which the Provincial Assembly has power to make laws.
(5) The powers exrecisable under clauses (3) and (4) shall be subject to the provisions of an Act of the appropriate Legislature.
(6) Any Court, Tribunal or Authority required or empowered to enforce an existing law shall, notwithstanding that no adaptations have been made in such law by an Order made under clause
(3) or clause (4), construe the law with all such adaptations as are necessary to bring it into accord with the provisions of the Constitution.
(7) In this Article, 'existing laws' means all laws (including Ordinances, Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Petent constituting a High Court, and any notifications and other legal instruments having the force of law) in force in Pakistan or any party thereof, or having extra-territorial validity, immediately before the commencing day."
' Thereafter, in view of clauses (3) and (4) of Article 268 of the Constitution of Islamic Republic of Pakistan existing laws in relation to the Sindh Province were adapted vide Sindh Adaptation of Laws Order, 1975, notified in the Gazette of Sindh, Extraordinary, Part I, dated 22-7-1975, wherein the Agricultural Produce Markets Act, 1939 was adapted appearing at page 160 of PLD 1975 Statutes Part, Volume 6. The Agricultural Produce Market Act, 1939 having been adapted by the Government of Sindh in view of Article 268(3) of the Constitution of Islamic Republic of Pakistan, 1973 read with Sindh Adaptation of Laws Order, 1975 the said Act being existing law would continue to be in force, therefore, would be valid and legal considering that pith and substance, true nature and character being beneficial to the interest of growers of the province. It may also be observed that the liability with regard to the payment of market fees under section 19 of the said Act, 1939 was challenged before this Court in (i) Noon Sugar Mills Ltd. v. Market Committee and others (PLD 1989 SC 449) and
(ii) M/s. Mirpurkhas Sugar Mills Limited v. Government of Sindh through Chief Secretary, Sindh and others (1993 SCMR 920) wherein demand of market committee fees by the respondents was held to be legal and valid. In view of aforesaid reasoning and decisions of this Court already made, the point No,(i) as in para. 9 of this judgment is answered in the affirmative.
12. So far the next point with regard as to whether the petitioners could object to the payment of market committee fees on agricultural produce only on the ground that the respondents were not rendering service to them, record would show that the petitioners since 1991 have not made payment of said fees to the respondents and the facilities to be provided under the said Act and the Rules would also depend upon its sources of the funds so made available by the dealers but in case dealers refused to pay said fees, the respondents in absence of needed funds would find themselves in difficulty to provide the services to the petitioners. However, the learned counsel for the respondents made a statement at the bar that they would provide all kinds of facilities as provided under the said Act and the Rules to the petitioners on payment of fees by them and in fact stated that they have made facilities/services available in the notified market areas wherever market committees have been established. Even if it be assumed that quantum of services were not proportional to the rate of charging fees the fact remained to be seen, whether the petitioners have approached the Court with clean hands in rising the said plea of not rendering services proportionate to the rate of fees, the answer would be in the negative as the petitioners since beginning have been avoiding payment of legitimate claim in respect of fees to the respondents on one pretext or the other. Besides it may be observed that all the said pleas and objections which have been raised by the petitioners in these petitions were already considered by this Court in (i)
Noon Sugar Mills Ltd. v. Market Committee and others (PLD 1989 SC 449) and (ii) M/s. Mirpurkhas Sugar Mills Limited v. Government of Sindh through Chief Secretary Sindh and others (1993 SCMR 920), which pleas were held to be without substance and merit. We would like to observe that the petitioners having not approached the Court with clean hands by not making payment of said fees which was held to be within the valid and lawful authority of the Province by this Court in the above-cited cases cannot be permitted to raise said plea that respondents are not rendering service under the said law and rules, therefore, not liable to pay the said fees. In the circumstances it is held that the petitioners could only raise the plea that services are not being rendered by the respondents to them when former performed their obligations with regard to payment of required fees.
13. So far the third point as to whether the respondent could legally demand the market committee fees though the said market committee stood dissolved as per Notification dated 22-11-1993 and administrator having been appointed under section 25-A of the said Act, the learned Division Bench in para. 13 at page 13 of the impugned judgment has observed:-- ' "Nevertheless it is apparent from the correspondence on the record that the levy was imposed by the Market Committee itself while it was in existence prior to 22-114993 and after the appointment of Administrator only the levy imposed by the Committee is being collected. In our humble opinion mere collection of fee as distinguished from levying it could legitimately be treated as a ministerial act falling within the category of functions and therefore, the principles of law declared by the Honourable Supreme Court (Fauji Sugar Mills v. Market Committee. ,Tando Muhammad Khan and another (1988 SCMR 155) are not attracted to the facts of the present case."
We find no reason to differ with the above views/finding arrived at by the learned Division Bench of the High Court of Sindh. In the instant case on the date of demand of said fees, the market committee was in existence, however, on the date of dissolution of Market. Committee when the notification was issued all property funds and dues which were immediately before the said date vested in or realizable by Market Committee would vest in and realizable by Government or such authority as be specified in the said notification under section 25-A read with section 33-A of the said Act, therefore, collection and recovery of arrears of fees could be effected through the Government functionaries in view of subsection (2) of section 33-A of the said Act which runs as under:-- "33-A........
(2) From the said date all properties funds and dues which were immediately before the said date vested in or realizable by the Market Committee shall vest in and realizable by Government or such authority as may be specified in the said notification, and all liabilities which immediately before the said date were enforceable against the market committee shall be assumed by, and be enforceable against, Government or the aforesaid authority, as the case may be."
' A perusal of above provision of law would show that all the properties funds and dues which were immediately before the date of dissolution of the market committee would vest in or realizable by the market committee would vest in and be realizable by Government or such authority as be specified in the said notification, therefore, the person notified was competent to effect recovery of the dues outstanding against the petitioners. In view of aforesaid reasons point No,(iii) (supra) is answered in the affirmative holding that respondents could legally demand market committee fees through the market committee stood dissolved by Notification dated 22-11-1993 through its notified officer.
14. In view of aforesaid reasonings we find that there is no merit in these petitions, therefore leave to appeal is declined and the petitions are dismiss dismissed.