SYED JAMSHED ALI, J.---This judgment will dispose of the following writ petitions as in all these petitions the common, grievance of the petitioners is demand and levy of market fee under The Punjab Agricultural Produce Market Ordinance (No,XXIII) 1978, and the Punjab Agricultural Produce Market (General) Rules, 1979:--
(i) W.P. No,16590-1998, (ii) W.P. No,8137-1999, (iii) W:P. No,8138-1999, (iv) W.P. No,4866-2000, (v) W.P.
No,4867- 2000, (vi) W.P. No,18549-1998. (vii) W.P. No,18550-1999,W.P. No,12582-2002, (ix) W.P.
No,7247-2002, (x) W.P. No,20805-1999, (xi) W.P. No,20806-1999, (xii) W.P. No,17314-2002, (xiii) W.P.
No,13676/1998, (xiv) W.P. No,19732-1998, (xv) W.P. No,1466-99, (xvi) W.P. No, 1580- 99 and (xvii) W.P.
No,13677-98.
2. Petition No,(i) is by a manufacturer of Jute bags while petitions Nos.(ii), (iii), (iv), (v) and viii are by the manufactures of textile products. Petition No,(xvi) is by a manufacturer of bird feeds while all other petitions are by sugar mills. In these petitions, (except No,(xvi) jute, cotton and sugarcane is involved which are agricultural produce as defined in Clause (a) of Section 2 of Punjab Ordinance XXIII of 1978 and there is no dispute about it.
3. In the first three writ petitions, the petitioners claim that they had paid different amounts of market fee to the concerned market committees. Apart from challenging further demand and levy of market fee a direction has also been claimed for the refund of amount of market fee stated to have been illegally collected by the respective Market Committees. In W.P.No,4867/2000 (serial No, (v)), the petitioner claims to have paid market fee amounting to Rs,2,41,427 till December, 1999 under protest. However, in these cases refund has not been claimed. In all other cases, the demand and levy of market fee under Ordinance XXIII of 1978 has been challenged on a number of grounds.
4. It may also be noted here that in W.P.No,16590-1998 (serial No,(i)), the contention raised before the learned Single Judge, was that the judgment rendered by the learned single Judge, of this Court (Multan Bench) in Solvex Pakistan Limited v. Market Committee Multan (1999 CLC 49), does not lay down the law correctly. In the case of Solve supra, the case of the petitioner was that it was producing vegetable ghee from the imported palm oil and soyabean or the palm and soyabean oils were purchased from outside the notified market area. The said writ petition was, however, dismissed. In view of the contention raised, the learned single Judge. Vide order dated 10.4.2002 referred the matter to a larger Bench and this is how this Full Bench is seized of these petitions.Vide order dated 6-11-2001 passed in W.P.No,16590-1998, notices in terms of Order XXVII-A of the Code of Civil Procedure were also directed to be issued to the learned Attorney General of Pakistan and learned Advocate-General, Punjab.
5. Although the questions being raised before us have by and large been resolved by various judgments of the superior Courts of the country, yet since we have heard these petitions at great length, we feel it appropriate to note the contentions of the learned counsel for the parties in necessary details.
6. Syed Mansoor 'Ali Shah, Advocate, appeared for the petitioners in the first three writ petitions. In the first writ petition, the petitioner mills imports jute from Bengla Desh while in the other two cases it is asserted that the petitioners purchase cotton from the Province of Sindh after paying the market committee fee to the concerned market committee. It is being maintained that under section 19 of the Punjab Ordinance No,XXIII of 1978, the market fee is leviable on the agricultural produce "bought or sold" by or through a dealer in the notified market area and in these three cases since sale or purchase does not take place' in the notified market area of any of the two market committees, no market fee is leviable. Further, the transaction liable to the levy of market fee, should take place in the market itself as distinguished from the notified market area and even on that score no market fee was leviable. It is next maintained that fee could only be levied for providing services, since the market committee was not providing any service to the petitioner mills, the fee could not be levied and the principle of quid promotion was attracted with full force.
7. Elaborating his submissions, he contended that although buying and selling has not been defined in the Ordinance, yet it has been explained in Rule 36(8) of the Punjab Agricultural Produce Market (General) Rules 1979, (hereinafter referred to as the 1979 Rules) which is reproduced hereunder:-- "(a) if the agreement of sale or purchase thereof is entered into in the said area; or
(b) in pursuance of the agreement of sale or purchase agricultural produce is weighed in the said area; or
(c) if in pursuance of the agreement of a sale or purchase the agricultural produce is delivered in the said area to the purchaser or to some other person on behalf of purchaser." His contention based on the said provision is two fold. Firstly, that the scope of the expression "bought or sold" in section 19 of Ordinance No,XXIII of 1978 could not be enlarged by the Rules and thus clause (a)and (b) of rule 36(8) are ultra vires of section 19 of the Ordinance. Reliance was placed on Agricultural Market Committee vs. Shalimar Chemical Works Ltd. (AIR 1997 SC 2502) in which a bye-law, in parameteria, with Rule 36(8) was struck down by the Indian Supreme Court. He further submitted that irrespective of the vires of the aforesaid rule, in the case of three petitions, none of the three clauses of Rule 36(8) was attracted to levy of market fee.
8. He next maintained that under section 19, it is only a dealer who is liable to pay the market fee and the petitioners are not dealers of agricultural produce.
9. He referred to the definition of dealer from Black's Law Dictionary 5th edition, Law Lexicon and Judicial Dictionary by Venkataramaiya's 10th Edition which are respectively reproduced hereunder for facility of reference:-- "Dealer. In the popular sense, one who buys to sell; not one who buys to keep, or makes to sell. One who purchases goods for resale to final customers."
"Dealer. A "dealer" means trader or a person who buys goods and sells them without processing them."
"DEALER" In the Shorter Oxford English Dictionary (3rd Ed.). "Dealer" has been defined to be " one who deals" and the special meaning given therein is " one who sells articles in the same condition in which he bought that". (Ratanlal Rastogi vs. Corporation of Calcutta, (1971-72) 76 Cal WN 288).
10. The definition of the word "delivery" from the Black's Law Dictionary and from the Law Lexicon was also referred to which are as follows:-- "Delivery" The act by which the res or substance thereof is placed within the actual or constructive possession or control of another."
"Delivery.-According to the ordinary understanding of the English language as soon as an article is put into the hands of a party that is delivery to him."
11. On the basis of the above definitions, he submits that a person who buys the agricultural produce and does not sell it could not be a dealer and on the basis of the definition of "delivery", he maintains that purchase in the case of the petitioner in the first three petitions, will only mature in case of delivery of the agricultural produce. He submits that in the three cases, the contracts for supply for agricultural produce are made at the headquarter office outside the notified market area. Asfar as jute is concerned, delivery is taken in Bengladesh, as far as cotton is concerned, the delivery is taken in Sindh after paying the market fee to the concerned, Market Committee and transported by the petitioner to their mills. Therefore, even if clauses "a & b" of Rule 36(8) of 1979 General Rules were held to be intra vires, none of the three contingencies contemplated by Rule 36(8) happens within the notified market area to attract the levy of the market fee.
12. He then referred to section 6 of Ordinance No,XXIII which provides that any person who wishes to work as a dealer may apply for a licence. Section 9 of the Ordinance was also referred to which provides, that a Market Committee shall enforce the provisions of this Ordinance and the rules and the bye-laws made thereunder in the notified market area and if so directed by the Government shall establish a market therein providing such facilities for persons visiting it in connection with the purchase, sale, storage, weigthment pressing and processing of the agricultural produce, as the Government from time to time may direct. Rule 79 of the Generals Rule of 1979, according to which sale and purchase of agricultural produce shall be conducted within the market premises was also relied upon. He also referred to the Schedule-A of Agricultural Produce Market Rules, 1940, providing for a licence for establishing or continuing or allowing to continue any place for the purchase and sale of agricultural produce and for sale and purchase of agricultural produce and referred to section 4(4) of Punjab Ordinance XXIII of 1978 which provides that "no person shall within the market, store, purchase, sell or in any manner deals in any commodity which is not declared as agricultural produce." According to him the requirements of the licence is, therefore, relatable to sale and purchase of agricultural produce in the market. According to him, the definition of the dealer contemplates a person who sets up, establishes, uses or allows to be used any place he the sale and purchase of an agricultural produce, "the place" as he sees is a place contemplated within the market if read with section 9 and Rule 79. Rule 15 which prescribes the duties and powers of the Market Committee was also referred to particularly clause `m' which provides for regulation of traffic in a market or sub-markets. Rule 23 was also relied upon, according to which the Market Committee shall exercise such control over the Market and the sale and purchase of agricultural produce therein as may be required for the due observance or provisions of the Ordinance and the rules and shall manage the affairs of the Market in the best interest of the trade.
13. Section 21 of the Ordinance was also relied upon which specifies the purposes for which the Fund, created under section 20 the Ordinance, could be spent. According to him, the services thereprovided by a Market Committee have clearly been identified: in section 21 of the Ordinance No,XXIII and a plain reading thereof showsthat the funds cannot be spent on any other purpose.
The services according to him, are provided in the market premises and not in the notified market area or to the growers and not to the petitioners. He thus maintains that a combined reading of sections 9 and 21, Rules 23 and Rule 79 leaves no manner of doubt that the sale and purchase liable to the market fee must take place in the market itself. He relied on Administrator Market Committee Kasur and 3 others v. Muhammad Sharif (1994 SCMR 1048), to contend that the rules framed under the Ordinance have been upheld as intra vires of the Ordinance. Although, he maintains, that even indirect or remote service was not being provided to the petitioners Mills to ensure to their benefit which was necessary to satisfy the principle of quid pro quo. Reliance was placed on Kewal Krishan Pera v. State of Punjab (AIR 1980 SC 1008), in which the conditions for satisfying the test for valid levy of market fee on an agricultural produce bought or sold by a licensee in a market area, have been identified. He referred to the following judgments to contend that for charging fee, there must be service in return:-- Nishat Tek Limited, Lahore' v. The Federation of Pakistan through- Secretary, Education, Islamabad and 3 others PLD 1994 Lahore 347. Messrs Saif Textile Mills Limited v. Pakistan through Secretary, Finance (Finance Division), Islamabad and 3 other PLD 1998 Peshawar 15. Sheikh Muhammad Ismail & Co. Ltd., Lahore v. The Chief Cotton Inspector, Multan Division, Multan and others PLD 1966 SC 388. Sohail Jute Mills Ltd. And others v. Federation of Pakistan through Secretary, Ministry of Finance and others PLD 1991 SC 329. Ravi Textile Mills Ltd. v. Federal Government of Pakistan through its Secretary, Ministry of Education, Islamabad and 2 others 1995 MLD 243. Sind Glass Industries Limited v. Chief Controller of Import and Export, Islamabad and 2 others 1990 CLC 638. Messrs Nishat Mills. v. Federation of Pakistan and others 1997 MLD.3194. Shahtaj Sugar Mills Limited v. Province of Punjab through Secretary, Food, Civil Secretariat, Lahore and 3 others 1998 CLC 1912. Biafo Industries v. Federation of Pakistan 2000 CLC 170. Collector of Customs, and others v. Sheikh Spinning Mills 1999 SCMR 1402. Government of North-West Frontier Province through Secretary Agriculture and others v.
Rahimullah and others 1992 SCMR 750. Messrs Fatima Enterprises Ltd. v. The Federation of Pakistan through Secretary, Education, Ministry of Education, Islamabad and others 1999 MID 2889, and Matiari Sugar Mills v. Government of Sindh PLD 1999 Karachi 424.
14. He further submitted that the judgments rendered under The Punjab Agricultural Produce Market Act (No,V of 1939) will not be applicable because, not only the definition of the "dealer" given in section 1 (aa) of 1939 Act but also section 19 of the said Act were not exactly, the same as these are in Punjab Ordinance (XXIII of 1978). He, however, to be fair to him brought to our notice the following cases:- Hyesons Sugar Mills Ltd., Karachi v. Market Committee, Khanpur and another PLD 1976 Lahore 1334. Messrs Kohinoor Sugar Mills Ltd., Lahore v. Market Committee, Jauharabad, District Sargodha and another PLD 1974 Lahore 1284.
Shah Muhammad and 4 others v. Kasur Market Committee, Kasur and 12 others PLD 1973 Note 142 at p.215. Province of West Pakistan v. Muhammad Hayat and 31 others PLD 1980 B1.23. Ch. Muhammad Ismail v. D.C. District Collector, Muzaffargarh and another 2000 CLC 1296, and Noon Sugar Mills v. Market Committee and others PLD 1989 SC 449.
15. He next contended that the respondent Market Committeehas been illegally collecting market fee from the petitioners in the three cases and, therefore, it was liable to refund the amount illegally collected from the petitioners. Reliance was placed on Messrs Pfizer Laboratories v. Federation of Pakistan PLD 1998 SC 64.
16. Another submission made by him was that the Market Committee had no material whatsoever before it to determine that the aforesaid three petitioners had purchased any agricultural produce withinthe notified market area to attract the market fee contemplated by section 19 even on the touch stone of rule 36 (8) of the 1979 Rules.
17. Mr.Shahid Karim, Advocate represents, the petitioners in the petitions at Sr.Nos.(iv) to (viii). Since the major issues raised in these petitions, have been decided in the case of Noon Sugar Mills (supra), and Pakistan Flour Mills Association vs. Government of Sindh 2003 SCMR 1062, his first contention was based on the role of a precedent. Both the aforesaid cases arose out of a the Punjab Act V of 1939. His precise contention was that Section 19 of the Punjab Ordinance No,XXIII was not as such interpreted. It may be mentioned at the outset that under section 19 of Punjab Act V of 1939, it is "licensee" who is liable to pay market fee while section 19 of Punjab Ordinance XXIII of 1978, it is a "dealer" who is to pay market fee. He submits that the role of a precedent is limited in its application to a question of law which is actually decided and not what may necessarily follow from the said decision. Reliance was placed on para. 17 of the Trustees of the Port of Karachi vs. Muhammad Saleem 1994 SCMR 2213. Which is reproduced hereunder:-- "It is well-settled that 'every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. Quinn v. Leather (1901) AC 495, 506. As far as the case of Pakistan Flour Mills supra is concerned, he submitted that the Honourable Supreme Court of Pakistan had declined to grant leave and, therefore, it was not a binding precedent. Reliance was placed on Kh.Ahmed Tariq Rahim v. The Federation of Pakistan Ministry of Law and Parliamentary Affairs and another PLD 1992 SC 646; and Khawaja Mohammad Yousuf v.
Federal Government 1999 SCMR 1516. With this prelude, he contends that Ordinance XXIII of 1978 is ultra vires of Article 142 of the Constitution read with Items Nos.49 and 54 of the Federal Legislative List which are reproduced hereunder for facility of reference:-- ItemNo,49.--"Taxes on the sale and purchase of goods imported exported produced manufactured or consumed" ItemNo,54.--"Fee in respect of any of the matter in this part but not including fees taken in any" Definition of "Goods" given in Article 260 was also referred toaccording to which "goods include all materials commodities and articles". According to him, it was only when an item was not covered by the Federal Legislative List, that the Provincial Legislature had the authority to legislate. The next limb of his submission was that the petitioner mills are limited companies and even tax on corporations falls udder Item No,48 of the Federal Legislative List. The field of legislation being occupied by the aforesaid entries, it did not fall within the scope of a residuary subject within the competence of the Provincial Legislature. In support of pith and substance theory he referred to the following judgments:-- The Province of East Pakistan and others v. Siraj-ul-Haq Patwari and others PLD 1966 SC 854; Pir Rashid-ud-Doola v. The Chief Administrator Auqaf West, Pakistan PLD 1971 SC 401; ' Hari Krishna v. Union of India AIR 1966 SC 619; Federation of Hotel and Resturant v. Union of India AIR 1990 SC 1637; Messrs Rashid Bhais (Pvt) Ltd. Company v. Secretary Government of Punjab E.,T.O. And others PLD 2000 Lah. 20; Messrs Pakistan Telecommunication Company Ltd. Through General Manager (South) v.
Government of the Punjab through Secretary, Excise and Taxation Lahore and another 2002 CLD 1010.
18. Mr.Ijaz Ahmed Awan, Advocate, represents the petitioners in all other writ petitions. Petition at Sr.No,(xvi) is a manufacture of poultry feeds while all the other petitions are by the Sugar Mills. As far as the Sugar Mills are concerned, his contention is that sugarcane does not go to the market, and no dealer or broker is involved. It is directly bought by the petitioners, from the growers of sugarcane. He further contends that the activities of the sugar mills are regulated by the West Pakistan sugar Factories Control Act (XXII of 1950). Section 16 of the said Act empowers the Provincial Government to fix minimum price and Rule 13 of the Sugarcane Factories Control Rules, 1950 places a restriction on purchase of sugarcane below the minimum price fixed under the Act.
Section 17 of Punjab Act (XXII. Of 1950) was also referred to which provides that no person or class of persons shall be employed by an occupier of a factory or by a purchasing agent to do any work or class of work in connection with any transaction for the purchase of sugarcane without a licence. According to him, since the business of the sugar mills was regulated by Act XXII of 1950, which was a special law, the provisions of Punjab Ordinance No,XXIII stood excluded. As far as Poultry Feed is concerned, his contention was that the petitioner purchases the ingredients of the feed from the local market and after processing it produces the poultry feed. Therefore, no fee was leviable. His another grievance was that not only market fee is charged on the sugarcane but also on the sugar. He further submits that levy of fee under section 19 was subject to the rules and since no rules had been framed under the said section, it did not become operative. Apart from the provisions of the Sugar Factories Control Act (XXII) of 1950, he also referred to the Sugarcane Act (No,XVI of 1934). Reliance was placed on sections 3-D and section 3-F of the said Act. While the former contemplates restrictions on the purchase of cane, the latter provides for tax on sale of sugarcane.
19. He also contended that the petitioners are manufacturing units and are, therefore, not "dealers" within the scope of section 2 (b) of Punjab Ordinance (XXIII of 1978). He maintains that the Sugar Mills are already paying the sugar cess to be utilized for the purpose of construction of roads and since no services are directly being provided to the petitioner mills, the market fee could not be charged. He also referred to section 4(3) of Ordinance XXIII and section 6 in support of the contention that the petitioners were neither dealers nor they wished to work as dealers in the notified market area.
20. As to the services being rendered in the notified market area, he invited our attention to reply to ground (e) in W.P.No,18459-1998 in which the position taken by the Market Committee is that it was not bound to provide facilities to the factory owners, it was, however, providing necessary facilities to the growers.
21. Syed Shabbar Raza Rizvi, Advocate General, Punjab, defended not only the Punjab Ordinance (No,XXIII of 1978) but also the levy of the market fee under section 19 thereof. He took us to the history of legislation. The first statute covering the field was the Agricultural Produce Market Act (No,V of 1939) and section 19 thereof provided levy of fee on the agricultural produce bought or sold by a licensee in the notified market area . The said Act was repealed by section 233(4) of the Punjab Local Government Act (No,XXXIV" of 1975) and thereafter Punjab Ordinance (XXIII of 1978) was promulgated. According to section 39(2) of Punjab Ordinance (No,XXIII of 1978), sections 156 to 163 of the Punjab Local Government Act (No,XXXIV of 1975) providing for establishment of markets were repealed. However, sections 39(2) of Punjab Ordinance No,XXIII saves not only the actions taken under the repealed provisions but also the rules, bye-laws made, an order or notification issued under the repealed provisions unless in consistent with the provisions of the Ordinance No,XXIII. He referred to section 4(3) of the said Ordinance, according to which no person can set up, establish or use any places for the purchase or sale of agricultural produce or purchase, sell, store, process such agricultural produce except in accordance with the terms and conditions of a licence granted under the provisions of the said Ordinance. He maintains that the restriction contemplated by section 4(3) is two fold. Firstly, against setting up or establishing a place for sale and purchase and secondly, against purchase, sale, storage or processing an agricultural produce. Under section 5, Market Committee is authorized to issue a licence to a dealer and its renewal and section 6 provides for application of a person who wishes to work as a dealer in a notified market area. The licences under the Ordinance are contemplated by section 6 and section 9(2). According to him, the scheme of the Ordinance contemplates licence fee and fee on purchase or sale of agricultural produce. He maintained that a dealer and a licensee for the sale and purchase of agricultural produce are inter-changeable and according to section 19, the fee is leviable on agricultural produce bought or sold by or through a dealer in the notified market area .He invited our attention to the definition of the "market" in section 2 Clause (i), and "notified market" area in section 2(k) which are respectively are as follows:-- "(I) 'Market' means a building, block of building, enclosure or other area which may be so notified in accordance with the rules framed under this Ordinance."
"(k) "notified market area" means any area notified under section 4 of this Ordinance.
' According to him, the fee is leviable on sale and purchase in the notified market area and not in the market itself as being convassed.
22. He also referred to the preamble of Ordinance No,XXIII which unfolds the object of the legislation i,e, "for the better regulation of purchase and sale of agricultural produce for establishment of markets and for making rules for their proper administration. He further submitted that prohibition on sale and purchase, except under a licence contemplated by section 4(3), is absolute without making any distinction whether the sale and purchase of agricultural produce in the notified market area was by a private individual or by a factory owner. He also invited our attention to the three provisos to section 19 which contemplate exemptions from the levy of market fee and contended that the aforesaid provisos eloquently spell out the legislative intent. Therefore, except in the aforesaid cases market fee was payable on all sales- and purchases of the agricultural produce in the notified market area . He further contended that Rule 36(8) explains as to when agricultural produce shall be deemed to have been bought or sold and it,inter alia, includes a place where the agreement to sell is entered into. According to him, in this modern age a contract of sale may be entered into through electronic media apart from telephonic contact. As to the place of delivery of agricultural produce outside the notified market area, his contention is that the delivery is one of touchstones as to purchase of an agricultural produce, but clauses (a) and (b) of Rules 36(8) operate independently. He further submits that Rule 38 of 1979, Rules made it mandatory for the petitioners to maintain accounts of transactions and fees which duty was being avoided by the petitioners to evade their liability. They, thus, want premium on their own default.
23. As far as the stated import of jute from Bengladesh or purchase of cotton from the Province of Sindh involved in the first three writ petitions is concerned, his contention was that it requires factual inquiry for which purpose the present proceedings are not the proper remedy. Reliance was placed on Adam Gee Sugar Mills Ltd. v. Market Committee Bhakkar and another PLD 1977 Lahore 115.
24. He contended that since factual controversies were involved, the petitioners should have approached the Market Committee and placed their grievance before it for proper determination.
Instead, the petitioners have rushed to this Court.
25. He referred to Rule 21 of 1979 Rules under which an order passed by the Market Committee is appealable. He also referred to the Punjab Agricultural Produce Market Act (No,XXIII of 1961) (East Punjab, India) and referred to a number of provisions which are in para materia with the provisions of Punjab Ordinance (XXIII of 1978), particularly sections 5, 6, 7 and 23 of East Punjab Act (No,XXIII of 1961). The last mentioned section provides for levy of fees on sale and purchase of agricultural produce. He maintained that the issues being raised have already been decided by the superior Courts of our country. Reference was made to the cases of Kohi Noor Sugar Mills, Solvex Ltd. And Noon Sugar Mills.
26. As to the contention of non framing of rules under section 19, he submitted that the rule making power is vested in the Punjab Government under section 35 of Ordinance No,XXIII of 1978 and clause (xix) thereof specifically authorizes framing of the rules in respect of fee payable under the Ordinance, fixation of the amount of such fee, mode of payment and recovery thereof. The rules referred to by section 19, therefore, do not mean that any separate rules were required to be framed under section 19 aforesaid.
27. As to the contention of Mr.Shahid Karim, Advocate, based on Article 142 of the Constitution read with Items Nos.49 and 54 of the Federal Legislative List, his contention was that the issue stands concluded by the judgment of the Honourable Supreme Court of Pakistan in the case of Pakistan Flour Mills Association (supra). However, he maintains that it is only a money bill which could originate in the National Assembly in accordance with Article 73 of the Constitution. According to Article 73(2) a statute providing for imposition of fee stands excluded from the scope of the money bill. He referred to the 1972 , Interim Constitutions which had a Provincial Legislative List and according to Item No,19 (Fourth Schedule) Agriculture and the matters incidental thereto, was a provincial subject. He also referred to the debate on Article 142 from the "Constitutional Law of Pakistan" authored by Shabbar Raza Rizvi (page 617-Volume I) and contended that Agriculture was a Provincial subject and in the 1973 Constitution, it was not incorporated in the Federal Legislative List. Therefore, Agriculture and all matters incidental thereto fall within the competence of the Provincial Legislature.
28. He maintained that section 19 was the charging section and even if rule 36(8) was at variance, with it the fee is leviable on the sale and purchase of agricultural produce. He also referred to two judgments from Punjab and Haryana High Court i,e, M/s. Prame Chand Ram Lal v. The Punjab State 1970 PLJ 432 and the Market Committee Dhariwal v. British India Corporation Ltd. 1976 PLJ 522.
29. As to the scope of principle of quid pro quo, the learne Advocate-General, maintains that services are being provided by the Markets Committee and even if, these are not availed by the petitioner mills, the principle is fully satisfied even if a class of persons is the beneficiary of the services being rendered by the Market Committee in the notified market area.
30. Mr.Zafar Iqbal .Chohan, Advocate, appeared for the Market Committee, Jaranwala, in W.P.
No,4866-2000 and 4867-2000 and Market Committee, Jhang in W.P. No,8138-99. He referred to the appeals filed by the petitioners in the first two cases before the Assistant Commissioner, Jaranwala, they conceded their liability to pay the market fee and it was reduced from Rs,37 lacs to Rs,2 lacs. The order dated 27-1-2000 passed on the appeals of the said petitioners was relied upon in support of the concession made by them. It is maintained that not only the petitioners in the said cases did not further assail the order passed before the revisional forum under rule 21(5) of the 1979 Rules but also that by virtue of the concession made before the Appellate Authority as to their liability to pay the market fee they were stop a to challenge the levy. He also contended that by withholding the above facts from the said writ petitions the petitioners have forfeited their right to be heard in equitable jurisdiction of this Court.
31. Mr. Badar-ul-Amir, Advocate, appeared in W.P. No .16590-98on behalf of Market Committee, Jaranwala. He referred to various provisions of the Ordinance and the rules which have already been noted by us. He invited our attention to section 34(1) of Ordinance (No,XXIII of 1978) which makes contravention of the provision of section 4 as a penal offence. He cited the following judgments on the distinction between a tax and a fee:- Dr. Muhammad Sharif Mutaqi and 10 others v. Muslim Insurance Co. Ltd. LahorePLD 1973 Notes 75 at page 78. M/s Fabric Electric Lamps Manufacturing Ltd and others v. Chairman District Council, Peshawar and others 1986 CLC 533; Dr. Mehmood-ur-Rehman Faisal v. Secretary Ministry of Law, Justice and Parliamentary Affairs, and 6 others PLD 1992 FSC 195; Reliance was also placed on Mirpur Khas Sugar Mills Ltd. v. Government of Sindh through Chief Secretary Sindh and 2 others 1993 SCMR 920 and Bhawani Sugar Mills Ltd. v. Market Committee , Badin and another PLD 1983 Karachi 1, in which challenge to levy of market fee was repelled.
32. The learned counsel for the Market Committee, Mandi Bahauddin, contended that the petitioner-Alia Sugar Mills, has been paying the market fee from 1990-91 to 1995-96 but for the year 1996-97, out of an amount of Rs,7,91,000 due against the said petitioner, an amount of Rs,4 lacs was paid and thereafter for the year 1997-98 and 1998-99, the entire amount of market fee was outstanding. He further contended that the petitioner earlier approached this Court in W.P.No,2980- 1986 (this petition was by a grower) in which vires of the Punjab Ordinance XXIII of 1978 were challenged which was dismissed as withdrawn on 24-7-2001 without permission to file a fresh petition. The present petition is not, therefore, maintainable. He also raised a somewhat novel proposition that in the Punjab Ordinance (XXIII of 1978), there was no concept of rendering services.
The purpose of the Fund created under section 20, according to him, was to promote agricultural marketing and to meet the expenses of the Market Committee. Raising of funds for providing services is not an object of the Ordinance because section 21 provides for specific heads of expenditure.
33. The learned counsel for the Market Committee Phoolnagar (W.P.No,15810/99) contended that the petitioner had already paid the licence and the market fee. He maintains that in the absence of maintenance of accounts of the transactions of sale and purchase of agricultural produce and the market fee, the Market Committee is full'competent to assess the leviable market fee under rule 38 of 1979 Rules. He adopted the arguments of the learned Advocate-General.
34. In the light of the submissions made before us, the questions arising for determination are identified hereunder:--
(i) Whether the petitioners, who are running various manufacturing units are dealers as defined in section (2)(b) of Punjab Ordinance(XXIII of 1978)?
(ii) Whether the Market Committee is rendering any service to satisfy the principle of quid pro quo?
(iii) Whether the Punjab Ordinance No,XXIII is beyond the legislative competence of the provincial legislature and whether the case of Pakistan Flour Mills supra is not a binding precedent?
(iv) Whether the West Pakistan Sugar Factories Control Act (XXII) 1950 and Sugar Cane Act (No,XV of 1934), operate to exclude applicability of the Punjab Ordinance (XXIII of 1978) to the petitioners mills?
(v) Whether any rules were required to be separately framed under section 19 of Punjab Ordinance (No,XXIII of 1978)?
(vi) Whether the concerned Market Committee could levy market fee on an agricultural produce extracted after being subjected to manufacturing or processing?
(vii) Whether in case of import of agricultural produce from abroad or purchase from a Province other than the Province of the Punjab, it will be deemed to have been bought within the notified market area?
(vii) Whether Rule 36(8) is ultra vires of section 1.9 of the Act?
(viii) Whether. The restriction on sale and purchase of agricultural produce within the market premises and not outside the same has the effect of denuding the concerned Market Committee of its powers to impose market fee on the transactions of sale and purchase of agricultural produce in the notified market area?
35. To resolve the first question it will be appropriate if the relevant provisions of Punjab Act V of 1939 and the Punjab Ordinance (XXIII of 1978) and the 1979 Rules are reproduced hereunder:-- S.2(aa) of Punjab Act V of 1939.
"Dealer" means any person not being a grower who within the notified market area sets up, establishes or continues or allows to be continued any place for the purchase or sale of the agricultural produce notified under sub section (1) of section 4 or purchases or sells, such agricultural produce."
Punjab Act (XXIII of 1978).
S.2(b) "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."
"Section 6(1).Application for licence fee to be paid and cancellation or suspension of licences.--(1)
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.
"9" Duties of the Market Committee.--(I) The Market Committee shall enforce the provisions of this Ordinance and the rules and bye-laws made thereunder in the notified market area and when so required by the Government shall establish a market therein providing such facilities for persons visiting it in connection with the purchase, sale, storage, weighment, pressing and processing of agricultural produce as the Government may from time to time direct."
Rule 79 of Rule 1979 Rules.
Conduct of Business:--Where a regular market has been established by the Market Committee with the approval of the Government, all transactions (sale and purchase) of agricultural produce shall be conducted within the market premises and not outside the same."
36. The contention of Syed Mansoor Ali Shah, Advocate, precisely is that "any place" in section 2(b)for the purchase or sale of agricultural produce has necessarily to be in the market itself as defined in section 2(i) as distinguished from "notified market" area as defined in section 2(k) of Ordinance (XXIII of 1978). He wants us to read, in section 2(b) "any place in the notified market area" as a "place in the market in the notified market area". Nothing can be added to a statute to re-write it because it will be a plain' violence to the enactment and against accepted principles of interpretation. Had the intention of the legislature been to confine it to the "market", it would have been so stated by the legislature.
37. We have, however, noticed that the definition of the expression "dealer" in Punjab Act V of 1939 was wider. It contemplated setting up or establishing any place within the notified market area for sale and purchase or purchase or sale of such agricultural produce. The words in the definition of 'dealer' in section 2(aa) of Act No,V "notified under subsection (1) of section 4 or purchases or sells such agricultural produce" were, omitted from the definition of "dealer" in Punjab Ordinance (XXIII of 1978). However, to our mind the omission of the aforesaid words from section 2(b) of Punjab Ordinance XXIII is of no significance. "Any place" referred to in section 2(b) of Ordinance No,XXIII, could, therefore, be the premises of a mills or any other place set up for the purchase or sale of agricultural produce by any B manufacturing unit. As far as section 6 is concerned, its language makes it optional for a person to apply for a licence to work as a dealer. As long as he is not engaged in sale or purchase of agricultural produce, he will be under no obligation to obtain a licence but the moment a person indulges in sale or purchase of an agricultural produce, provisions of section 6 become mandatory. It may also be noted here that liability to pay market fee is that of a "dealer" and not necessarily of a dealer who has obtained a licence under section 6.
To our mind this appears to be reason that while section 19 of Punjab Act of 1939 provided levy of market fee on a licensee, section 19 of Ordinance (XXIII of 1978) makes a "dealer" liable to pay market fee. There could be yet another reason for the amendment, in section 19 of Ordinance (XXIII of 1978) i,e, that apart from the dealers licence contemplated by section 6, licences are issued to a number of other persons such as the brokers, weighment, measurers, surveyors, warehouse men, changer, paledars, boriots, tolas, tokeriwala, rehriwala under section 9 but no market fee is payable by them.
38. As far as the contention based on section 9 of Punjab Ordinance No, XXIII is concerned, a perusal thereof shows that a Market Committee shall enforce the provisions of this Ordinance and the Rules establishment of a market provide facilities for the persons visiting it. And bye-laws made thereunder in the notified market area and on The first part of the section clearly contemplates that the provisions of the Ordinance and the rules will be enforceable and applicable even when no market is established.
39. As far as Rule 79 is concerned, although it contemplates a restriction on sale or purchase of agricultural produce in the market premises, yet, we are of the view this is only regulatory. The object appears to be not to permit parallel markets in the notified market area. It may also be noted that the liability to pay market fee is under section 19 of the Ordinance and rule 79 will not have the effect of controlling or curtailing the scope of section 19. This rule was added by virtue of notification dated 17th of April, 1985 and was considered in the case of Administrator Market Committee , Kasur (supra). It was held not to he repugnant to the statute. In the said case, vires of Rule 79 was challenged on the ground of fundamehtal right No,18 and Ordinance (XXIII of 1978) by the dealers of Old Sabzi Mandi. Their grievance was against establishment of a new Sabzi Mandi.
The contention was that they could carry on their business at any place in the notified market area i,e, the old fruit and vegetable market. This Court held that Rule 79 being prospective in operation, establishment of the new market shall not affect the rights of the dealers to carry on their business in the old market. The Market Committee took the matter before the Honourable Supreme Court.
The said august Court found that rule 79 was not repugnant to the provisions of the Ordinance and made the following observations:-- "The High Court has rightly held that this rule is in the nature of regulatory provision. The object of this Ordinance would be frustrated if everybody is allowed to do business outside the limits of the Market, in terms of the provisions, anywhere in the city."
' The question as to the effect of Rule 79 on the liability to pay market fee under section 19 was not under consideration of the Honourable Supreme Court.
40. Under section 19 of Punjab Act 1939, it was a licensee who had to pay the market fee. The question was considered by the Honourable Supreme Court in the case of Noon Sugar Mills Ltd.
(supra) and the following observations were made:-- ' It will be noticed that under this section the fee is payable only by licensees. It is not in dispute that the sugar mills of the appellants as well as the collection points for the purchase of sugarcane fall within the notified market areas. Some of the appellants have obtained licences from the Market Committees but many of them had not. However, that would not make any difference, for, anyone who is under an obligation to obtain a licence in pursuance of the provisions of the Act, but has not done so cannot evade his liability to pay the market fee for in that event he would be taking advantage of his own illegal omission. In this context, reference may also be made to the second proviso to Rule 29(2) of the Agricultural Produce Markets Rules, 1940, which states that all buyers and sellers whether they have obtained licences or not are to he treated as licensees. Although in the High Court an argument was raised that only such of the owners of sugar mills who had obtained licences were liable to pay market fee, it was not pressed before us." It was further observed as follows:-- "However, that may be , on a plain reading of section 4(2) there is no reason why the requirement of obtaining licence should be confined to only those who both purchase and sell agricultural produce or to exclude from its ambit such persons who merely take part in one-end' transactions.
In fact the proviso which the Legislature has added to the section militates against construing the word "or" in the conjunctive sense. If the said word was intended to mean 'and' to create an obligation to obtain licence against only those who engaged themselves in `two-end' transactions, it was unnecessary to exclude by a specific provision such growers who sold their own or their tenants' produce or such persons who purchased agricultural produce for their private use. It hardly need to be added that persons falling in this category are involved only, to use Mr. Zafar's own term., in 'one-end' transactions, and on his interpretation of the expression 'purchase or sell', they would have been in any case excluded and it was otiose to make a special provision in their case in order to take them out of the operation of the section."
41. It may be noted here that Rule 29(2) of 1940 Rules has been retained as rule 36(I) in 1979. Rules while the proviso to sub rule (2) of 1940 rules was retained as second proviso to rule 36 (1) of Ordinance (No,XXIII of 1978). Even the persons exempted from taking a licence by virtue of Rule 8 of Rules 1979 were, therefore, licensees under the Punjab Act (No,V of 1939).
42. The question was also considered in the case of Kohinoor Sugar Mills Ltd. (supra) and the contention that only a licensee dealer was liable to pay market fee, was repelled with the following observation:- "The liability to pay market fee is not dependent upon the purchase places being licensed or approved or not, but on the purchase being within a notified market area"
43. As far as the contention based on the definition of "dealer" from the law dictionaries is concerned, it has no merit. The precise contention was raised before the Honourable Supreme Court of Pakistan in the Noon Sugar Mills (supra) and was repelled. Therefore, we are of the view that all the petitioners in these cases are "dealers" within the scope of the definition given in section 2(b) of the Punjab Ordinance (XXIII of 1978). Question No,1 is accordingly; answered. .
44. Coming to the second question, it was grounded also on section 9(1) of Ordinance XXIII according to which facilities are to be provided in a market for the persons visiting it in connection with purchase and sale etc. Of agricultural produce, rule 79 already noted above and section 21 of Punjab Ordinance XXIII which provides the purposes for which the market fund could be spent.
There was a similar provisions in Punjab Act V of 1939 i,e, section 19 although section 21 of Ordinance (XXIII of 1978) is much wider. A perusal of section 21 shows that one of the purposes for which the Market Committee Fund created under section 20 could be spent is advance of loans to the other Market Committees in the District for carrying out development projects with the previous sanction of Government The question was considered by the Honourable Supreme Court of Pakistan in the case of Noon Sugar Mills Ltd. (supra) and the following observations were made:-- "It is not possible to subscribe to the contention of Mr.Ijaz Batalvi. It is no doubt true that the Sugar Factories Control Act and the rules framed thereunder do control the relations between the mills and the growers of sugarcane with regard to the sale, price and, to some extent, quality of sugarcane but this control is of a limited nature and touches only a part of the sphere of activity of a market committee. Under the Punjab Agricultural Produce Markets Act, there are numerous other services which a Market Committee is required to render in a notified market area and from these services not only the agriculturists but also those engaged in agro-industries undoubtedly draw benefit. For example, as required by section 21 of the Act, the Market Committees collect and disseminate information relating to crop statistics and carry out propagandas in favour of agricultural improvement and thrift. A number of brochures issued by different Market Committees In discharge of this statutory function have been placed before us. These brochures offer suggestions aboutthe improved methods of cultivation of sugarcane. They also contain information with regard to the use of fertilizer and pesticides, appropriate times of watering and harvesting of the sugarcane crop and merits and demerits of different types of seeds. Getting these brochures prepared from experts costs money. Apart from that; the Market Committees hold competitions among growers and give cash award to those who achieve the best results both qualitatively and quantitatively. It need hardly be added that the ultimate beneficiaries of these services are the agro-industries. It may also be mentioned that some Market Committees provide facilities for the cart, truck and trolley drivers at the purchasing centers set up by the sugar mills. It is therefore, not correct onthe part of the learned counsel to contend that the services performed by the Market Committees do not benefit the sugar mills and for that reason the latter are not liable to pay the market fee or that as the relations between the growers of sugarcane and the mills are controlled by the Sugar Factories Control Act, the Market Committees have no contribution to make in the sugar manufacturing business. The contention that the Punjab Agricultural Produce Markets Act stands eclipsed by the Sugar Factories Control Act, is untenable for their fields of operation, as pointed out above, do not coincide."
We, accordingly, answer the second question in the affirmative.
45. As far as the contention based on Article 142 read with Items Nos.48, 49 and 54 of the Federal Legislative is concerned, it has no merit. It may be noted that in the case of Matiari Sugar Mills Ltd.
Supra, the contention raised before the learned Karachi High Court was based, on Item No,49 only was repelled. Against the said judgment, the matter was taken before the Honourable Supreme Court of Pakistan in the case of Pakistan Flour Mills Association supra. Item No,54 was also relied upon to attack Punjab Act V of 1939. The question was noted, elaborately dealt with and the following decision was rendered by the Hon'ble Supreme Court:-- "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 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.
46. The submission made before us that since the said judgment was rendered under the Punjab Act 1939 or that in the said case leave was refused and, therefore, it is not a binding precedent has not impressed us for the reason that as far as Item No,54 is concerned, no contention was even raised before the learned Karachi High Court and as far as Item No,49 is concerned, not only the contention was noted, it was considered in all material details and a decision rendered by the Honourable Supreme Court of Pakistan as noted above. According to Article 189 of the Constitution, a decision of the Honourable Supreme Court of Pakistan to the extent that it decides a question of law or is based upon or enunciates a principle of law is binding on all Courts and authorities. What is binding,' therefore, is a decision on a question of law. The decision referred to in Article 189 is not necessarily one after the grant of leave. The decision aforesaid is not an obiter dicta because the question was directly considered and decided. Reference may be made to Ghaus Muhammad v.
The State and another (PLD 1978 Lahore 1235) in which this Court had observed that decision of a question of law by the Honourable Supreme Court of Pakistan even in per curiam was binding on the High Courts. The judgments cited by Mr.Shahid Karim, Advocate as to the role of a precedents have been examined. In the case of Khawaja Ahmed Tariq, Rahim (supra) one of the honourable Judges of the Supreme Court, in para 45 of the judgment, had observed that since the questions involved in the said case were of great public importance. These should have been decided after grant of leave. In the case of Kh. Muhammad Yousaf (supra), the question before the Honourable Supreme Court was the scope of a "final judgment" for the purpose of section 12(2) of the Code of Civil Procedure. The contention that a decision on a question of law rendered by the Honourable Supreme Court of Pakistan before the grant of leave is not binding has, therefore, no merit.
Therefore the decision of the Honourable Supreme Court in the case of Pakistan Flour Mills (supra) is a binding precedent. As far as the attack on Ordinance No,XXIII, on the touchstone of Item No,48 of the Federal Legislative List is concerned, it is equally without any merit because the said item provides for tax on Corporation. It is not disputed that the impugned levy is fee, and not a tax. In any case it is not a tax on corporations, it is fee on sale or purchase of agricultural produce. We accordingly, answer question No,(iii) in the negative.
47. The next contention that Sugar Factories Control Act and Sugarcane Act 1934 have the effect of excluding the provisions of Ordinance XXIII of 1978 has no merit. The question was first considered in the case of Kohinoor Sugar Mills (supra) and was repelled. It was again raised in the case of Noon Sugar Mills (supra) in para 16 of the judgment and was repelled in para. 17 already reproduced above. Similar view was taken by the Honourable Supreme Court in the case of Mirpur Khas supra.
The fourth question is, therefore, answered in the negative.
48.The contention that in the absence of rules framed under section 19, of Ordinance XXIII the market fee could not be levied, has no merit because the rule making power is conferred on the Punjab Government by section 35 of Ordinance XXIII and clause (XIX) specifically authorizes "prescribing any matters in respect of which fee shall be payable under the Ordinance, fixation of the amount of such fee and mode of payment and recovery thereof. Section 19 only subjects it to the framing of the rules by the Government and not necessarily a separate set of rules under section 19. Question No, (v) is, therefore, answered in the negative.
49. As far as question No,(vi) is concerned, the departmental representative in attendance on behalf of the Market Committee explained that in case no market fee was paid on the purchase of sugarcane only then the product will be liable to levy of fee. It may also be noted that under section 19( c) fee is not leviable in respect of any "subsequent transaction, sale or purchase within the same notified area (underlining is ours) of an agricultural produce extracted after being subjected to manufacturing processing". What is prohibited by section 19(c) is the fee on the resale and purchase of agricultural produce within the same notified market area. In principle we are inclined to agree with the learned counsel that in case market fee is paid on sugarcane in a notified market area of a particular Market Committee then the product i,e, sugar will not be liable to any fee in the same notified market area. This is, however, a question of fact and. Cannot, be determined in these proceedings. If any of the petitioners claims exemption from payment of fee on the basis of Section 19(c) of Ordinance. XXIII, he will have to agitate the issue before the concerned authorities. Question No,(vi) is accordingly, answered.
50. As far as question No,(vii) is concerned, it may be noted that it is the buying or selling in the notified market area which attracts levy of market fee. Buying or selling has not been defined in Ordinance No,XXIII, itself. However, Rule 36(8) provides as to when agricultural produce shall be deemed to have been bought or sold. It will be appropriate to reproduce the aforesaid provisions:- - "(8). For the purpose of this rule agricultural produce shall be deemed to have been bought and or sold in a notified market area.-
(a) if the agreement of sale or purchase thereof is entered into in the said area; or
(b) in pursuance of the agreement of sale or purchase the agricultural produce is weighed in the said area; or
(c) if in pursuance of the agreement of a sale or purchase the agricultural produce is delivered in the said area to the purchaser or to some other person on behalf of the purchaser.
51. The learned Advocate-General, had frankly conceded if neither of the three eventualities take place within the notified market area, the market fee will not be leviable. However, again, it will require a factual inquiry and. To claim exemption from market fee on the basis that agricultural produce is not "bought or sold" within the notified market area, the petitioners will have to satisfy the concerned authorities. We may, however, like to clarify that while clause (a) operates independently, clause (b) clause (c) referring to the weighment and the delivery of agricultural produce in pursuance of a sale agreement do not operate independently. Question No,VII is, accordingly, answered.
52. The contention that rule 36(8) is ultra vires of section 19 of the Punjab Ordinance XXIII has no merit. The fee as noted above, is leviable when the agricultural produce is bought or sold. However, the rule making authority has created a legal fiction as to when an agricultural produce is bought or sold . It is a subordinate legislation but is backed by section 35 of Ordinance No,XXIII. The contention, was, in fact, based on the judgment of the Indian Supreme Court in the case of Agricultural Market Committee (supra). Their lordships of the Indian Supreme Court were considering section 12 of Andhra Pardesh (Agricultural Produce and Livestock) Market Act (XXVI of 1966). Explanation 1 to Section 12 thereof created a legal fiction which was enlarged by Rule 74(2) and bye law No,24(5). The Supreme Court observed that creation of legal fiction was beyond the legislative policy,.Such legal fiction could be created only by the legislature and not by a delegate in exercise of rule making power. The aforesaid rule and the bye-law were, held to be beyond the scope of the Act and, therefore, ultra vires. It may, however, be noted that in the said case, the Indian 'Supreme Court had maintained judgment of Andhra Perdesh High Court and the said Court, on the basis of evidence and material on record had come to the conclusion that transaction of sale/purchase took place in the State of Kerala and not at Hyderabad and, therefore, the authorities under the Act were not justified to levy the market fee on the transaction.
53. It may, however, be observed that as far as section 19 of Punjab Ordinance XXIII is concerned, it does not create any legal fiction while section 12 of India Act (No,XVI of 1966) created a legal fiction and, therefore, the learned Supreme Court of India was of the view that the scope of legal fiction could not be enlarged by the subordinate legislation. The view expressed by the Supreme Court of India was in the context of certain facts which were found to have been proved. We may also respectfully state here that Rules 36(8) is only explanatory as towhen sale and purchase for the purpose of Ordinance XXIII shall be deemed to have taken place and the said rule had the backing of clause (XIX) of section 35 of Ordinance (No, XXIII of 1978).
54. It may be observed that weighment of agricultural produce in pursuance of an agreement, both being within the notified market area, to our minds, is part of delivery and, therefore, does not offend against the expression "bought or sold". Therefore, we hold that Rule 36(8) is not ultra vires of section 19 of the Ordinance and answer, question No,(viii) accordingly.
55. As far as question No,(ix) is concerned, it has been dealt with by us in para 39 of this judgment and is, accordingly answered in the negative.
56. A number of judgments were cited before us as to the distinction between tax and fee, and the principles of quid pro quo, however, in view of the pronouncement of the Honourable Supreme Court of Pakistan, in the case of Noon Sugar Mills (supra), examination of the said judgments is not considered necessary.
57. As far as the prayer made in the first three writ petitions for the refund of the market fee already paid is, concerned, we are not inclined to grant it because the question whether any sale or purchase took place in the notified market area could only be determined in a proper factual inquiry.
58. In view of our answers to the questions formulated by us, all these petitions are dismissed with the observation that if any of the petitioners claim available exemption from levy of the market fee on the basis of section 19(c) of Punjab Ordinance (No,XXIIJ of 1978) or on the ground that sale and purchase did not take place in the notified market area they will have to raise their claims before the concerned Market Committee, will be entitled to hearing and production of such evidence as they may like to adduce. No order as to costs.