Find a Lawyer

Petitions Nos. 361 and 446 of 1967, decided on 23rd February 1968.

(a) West Pakistan Agricultural Produce Markets Act (V of 1939)

[Punjab Act (V of 1939) as renamed by Punjab Agricul tural Produce Markets (West Pakistan Amendment) Ordinance (XXII of 1964)], Ss. 3, 4, 7 & 8‑Government under S. 3 declaring its intention to control purchase and sell agricultural produce in notified area‑Notification under S. 4 declaring such area to be "notified market area" must follow before "market committee" under Ss. 7 & 8 van be established‑Notification under Ss. 7 & 8 establishing "market committee" prior to issue of notification under S. 4‑Invalid‑Notification under S. 7, can merely determine numerical strength of market committee and does not empower Government to establish a market committee in disregard of provisions of S. 8 and rules framed under Act.

(b) West Pakistan Agricultural Produce Markets Act (V of 1939),

S. 8(6)‑Provision of subsection (6) of S. 8 applicable only in cases of casual vacancies or defect in constitution of market committee‑Market committee established in violation of provisions of Act‑‑Not immune from being questioned.

S. M. Raza and Kazi Munawar Ali for Petitioners.

Akhtar Ahmad Qazi, A. A.‑G. and Khalid Ishaq for Res pondents.

Dates of hearing : 30th January, 8th and 9th February 1968.

FARUQUI, J

.‑These two petitions under Article 98 of the Constitution challenge the validity of the establishment of market committees by the Government of West Pakistan under the West Pakistan Agricultural Produce Market Act of 1939 as amended. The first petition relates to the establishment of a market committee known as Hyderabad Market Committee and the second relates to Math Market Committee in the District of Hyderabad. The Punjab Agricultural Produce Market Act V of 1939 as amended from time to time was extended to the whole of the Province of West Pakistan by the Amending Ordinance XXII of 1964. The object of this Act, as stated in the preamble, is to provide for the better regulation of the purchase and sale of agricultural produce and the establishment of markets for agricultural produce in the Province. Section 3 of the Act provides that the Government may by notification de clare their intention of exercising control over the purchase and sale of such agricultural produce and in such area as may be notified in the notification. Such a notification shall state that any objections or suggestions, which may be received within the specified period, will be considered. This period is not to be less than one month. The next section, that is section 4, provides that after the expiry of the period specified in the notification under section 3 and after considering such objections and suggestions as may be received, the Government may by notification declare the area notified under section 3 or any portion thereof to be a notified market area for the purposes of this Act in respect of the agricultural produce notified under section 3 or any part thereof. Subsection (2) of section 4 provides that after the notification under subsection (1), no person, unless exempted, shall, within the notified market area, set up any place for purchase and sale of agricultural produce except under a licence granted under the provisions of this Act. Section 5 provides that the Government shall, by rules made under this Act, specify the authority to whom an application may be made for the grant of a licence. Section 6 provides for the applications for such licences and other things connected with it. Then comes section 7, which provides that the Govern ment shall, by notification, establish a market committee for every notified market area. Section 8 relates to the constitution of the market committee which shall consist of 9 or 16 members as Government may in each case, determine. Of these members one is to be appointed by the Government and the remaining in the following way : If the committee is to consist of 9 members there shall be appointed 5 members from growers of the District and three members from persons licensed under sections 6 and 9 for the notified market area concerned. In the same way if the committee is to consist of 16 members then, apart from the official member, nine members will be appointed from the growers and six members from amongst the licence‑holders under sections 6 and 9. The period of office of these members is provided by section 10 to be of 3 years. Section 9 enumerates the duties of the committee and empowers it to issue licence to brokers, weighmen, measurers, surveyors, etc.

2. The petitioners in both the petitions are dealers and purchasers and sellers in grain, fruit and vegetables. They are required to obtain a licence under section 6 in order to do their business and in the absence of which they are liable to prosecution.

3. The Government published a notification under section 3 on 16th September 1966 declaring their intention of exercising control over the purchase and sale of the produce specified in the notification in the district of Hyderabad and fixed a period of 60 days for the receiving of objections and suggestions. Next came the notification Qn 24th February 1967 to exercise of powers conferred by sections 7, 8 and 10 of the Act. By this notification the Government established the market committees in the district of Hyderabad. In the notification with regard to Hyderabad itself the strength of the membership of the committee was fixed to be 16 and with respect to Math it, was 9. In this notification the names of the members of the committee from amongst the growers dealers and weighmen were also notified and so was the designation of one official member, of the committee. In this manner a committee of 16 was established for Hyderabad proper and a committee of nine for Math. It is with respect to these two committees that the present two petitions relate.

4. When the second notification was published there was no notification under section 4 of the Act which was only published later on 17‑3‑67. It may further be noted that amongst the two market"': committees, whose constitution was notified under sections 7, 8 and 10, the members amongst the category of dealers and weighmen who were appointed were not licensed as required by sections 6 and 9 of the Act. This was because when these committees were established no licences had been issued and could not have been issued, and there was not iii existence a body of such licence‑holders of the previous year from whom the appointment could have been made.

5. It is the contention of the petitioners in both those petitions that the establishment of these two committees was void ab initio because when these were established‑ there was no notified market area which could only have come into being as a result of a notification under section 4 of the Act. It was further contended that the committee was not validly constituted because the members from amongst the dealers and weighmen, who were appointed, were not licensed and there was no power in the Government to appoint any such members. It was further contended that the petitioners, who had been following their profession as dealers, sellers and buyers and brokers, had been deprived of their trade which they had followed for many years and had not found representation in the committees so established. It was further pointed out that they were being threatened with prosecution for not having applied to this committee for the grant of licence under section 6.

6. The learned Additional Advocate‑General and Mr.. Khalid Ishaque appearing for the respondents put forward two contentions to reply. It was first urged that having regard to the provisions of the Act the establishment of the first committee was to be by the Government only in accordance with the provisions of section 7 of the Act so that the requirement of section 8, which provided for the representation of the growers, the dealers and the brokers and weighmen, etc., was not required to be adhered to. It was pointed out that having regard to the provisions of Me Act and the Rules if the repre sentation of the various groups was to be insisted upon as laid down in section 8, the first committee could not be established for instance, it was pointed belt that there would be no licensees from amongst the dealers and weighmen because they could only come into existence after the committee had been established. With regard to the dealers it was said that an application for licence under section 6 could only be processed through the committee as provided‑ by the rules. Likewise, with regard to the weighman the power to grant licence vested exclusively in the committee itself. It was pointed out that in the region of the former Province of Sind there being no com mittees in existence nor being there any licensees under section 6, the provisions of section 8 referred to above could not be enforced. The second contention was that even if the committee was not validly constituted anything done by the two committees of Hyderabad, and Matli could not be questioned upon the ground of the defect of the constitution of the committee. Reliance was placed on subsection (6) of section 8 which provides that no act done by the committee shall be called into question on the ground merely of the existence of any vacancy in, or any defect in the constitution of the committee. We shall examine these contentions presently.

7. The obvious difficulties and inconsistencies with regard to the enforcement of the Act in the former Province of Sind, as has been pointed out, arise from the fact that when the said Act was extended to the whole of the Province of West Pakistan by Ordinance XXII of 1964, it was either assumed that the Sind Agricultural Produce Markets Act, 1940, which was repealed by this Ordinance, had been functioning in this region so that there would be in existence a body of licensed dealers, brokers and weighmen and panel of growers from amongst whom the Committee could be constituted in accordance with the provisions of the Act and the Rules. But admittedly, the Sind Act had not been enforced and there were no such committees nor were there licensed dealers or panel of growers. It was also overlooked that the original Act V of 1939 had been amended from time to time by Punjab Act of 1949, Act I of 1949 and West Pakistan ordinance XXXI of 1959, with the result that the original Provisions which existed for the purposes of the setting up of the first committee were no longer there. The act, as it was Wended to the Province of West Pakistan, was the one which tad been amended from time to time. For instance, it would appear from the foot‑note in the Manual of Agricultural Laws that the provisions of subsection (3) (ii) of section 8 and clause (2) of sub‑clause (b) which deal with the representation of the licensed ‑ dealers etc., were introduced only by the amending Act of 1949. For the words and figures in the sub‑clauses referred to above, the provisions in the original Act was "carrying on any business or occupation of the nature specified in sections 4 and 9." It would, therefore, be seen that it was not the requirement of the original Act V of 1939 that the representation from amongst the dealers and brokers was to be from amongst licensed persons. This provision was introduced in 1949 because the market committees had already come into being and there was in existence a body of licensed dealers, brokers and weighmen. Be that as it may, it is plain that the constitution of the market committee in the present case was not in accordance with the Act and the Rules.

8. The argument, that the establishment of the first committee was to be in disregard of the provisions of other sections and rules, overlooks the plain difficulties which stand) in the way of its acceptance. Section 7 merely states that th6 Government shall, by notification, establish a market committee for every notified market area. If this provision is to be read by itself then the question naturally arises which is this market com mittee, of which this section is talking of. The market committee as such has not been defined by section 2 and the only market committee that is contemplated is the one which is required to be constituted according to the provisions of section 8 which provides that "a market committee shall consist of . . . ." The market committee referred to in section 8 is obviously the one which is mentioned in section 7. Moreover, this notification of 17‑3-67 was itself under sections 7 and 8. It may then be noted that under rule 8 of the Rules framed under the Act, it is provided that a notification under section 7 of the Act shall determine the numerical strength of the market committee to be constituted. Reading this rule with section 7 makes it plain that if a notifi cation is to be made only under section 7 then it can merely determine the numerical strength of the market committed which is to be constituted in accordance with section 8. It has already been noticed that a market committee can consist either of 9 or 16 members. This, therefore, could be determined by a. notification under section 7. But there is no warrant for the proposition that section 7 empowers the Government to establish a market committee in disregard of the provisions of section 8 awl the rules framed under the Act.

9. That brings us to the second contention raised on behalf of the respondents which was based on subsection (6) of section 8. The argument in support of this really, comes to this: Though the establishment of the committee itself may be in utter disregard of the provisions which govern) its consti tution, this committee shall continue to function regardless of its invalidity and any act done by it shall not be questioned in view of the provisions contained in subsection (6) of section 8. That, in our opinion, was not the intention of this subsection. It may be noticed that sub‑rules (2), (3), (4), (5), (6) and (7) of rule 8 provide an elaborate procedure for the constitution of a market committee. Sub‑rule (3) provides that the election of growers by the non‑official member of the District Board shall be held on the basis of plural vote which may be cast in favour of one or more candidates at the option of the voter. Sub -rules (4), (5) and (6) provide that if the licensees competent to submit a panel have formed themselves into an association recognised by the Deputy Commissioner, the panel of 'names shall be submitted through the president thereof. Such a panel shall disclose the order of priority in which the names are desired to be considered for appointment as members of the committee. The Deputy Commissioner is then required to submit his recommendation to the Government for the appointment of the members of the market committee. In case, the Deputy Commissioner does not recommend the names of licensees in the order or priority disclosed by the panel he shall record his reasons in writing. Thereafter the Government shall, after such inquiry, if any, as they may deem proper, select and notify the names of the members appointed. It is, however, provided that if the Government do not accept the names of licensees in the order of priority disclosed by the panel, an opportunity shall be given to. the licensees concerned to submit fresh names in place of those not accepted or to state the order of priority among the other names included in the panel. It will, therefore, be seen that it was never intended that the appointment of 'the members of the committee was to be in any arbitrary manner and in disregard of the wishes of the members of the association of licensed dealers. We are, therefore, of the opinion that subsection (6) of section 8 was intended only to apply in cases of any casual vacancy or defect in the constitution of the com mittee and not to a case where the initial establishment of the whole committee was in violation of the mandatory provisions of the Act and the Rules.

10. There is another fatal objection to the establishment of the market committees in the present case. As has been pointe6 out in the opening part of the judgment, the notification under sections 7, 8 and 10, in this case, was published earlier than the notification under section 4. Section 4 provides for the declara tion of a notified market area. Such declaration obviously must precede the establishment of a market committee under sections 7 and 8. Section 7 provides that the Government shall by notification establish a market committee for every notifies' market area. "Notified market area" has been defined to mean any area notified under section 4. Therefore, unless such an area had first been notified the establishment of a market com mittee in respect of such an area would be invalid. So would be the committee which comes to be constituted in respect of such a market area.

11. For the reasons given we declare that the establishment of the two market committees, which are subject‑matter of these two petitions, is without lawful authority and of no legal effect. We further declare that any action taken by these market committees is also without any lawful authority. These two petitions are accordingly allowed to the extent of the decla ration given above. The respondents shall pay the costs of the petitioners:

A. E./K.B. A. Petitions allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.