2000 PLP _ (CLC)

10. Section 19 of the Ordinance enumerates that 'a Market Committee may, subject to such rules as may be made by Government in this behalf, levy, fees, not exceeding the maximum rates prescribed, on the agricultural produce bought or sold by or through a dealer in the notified market area; Provided that:‑‑ (a) no fee shall be leviable in respect of any transaction in which delivery of the agricultural produce bought or sold is not actually made, (b) no fee shall be leviable on a person who is not a party to a transaction; (c) no fee shall be leviable in respect of any subsequent transaction of sale or purchases within the same notified area of an agricultural produce extracted after being subjected to manufacturing or processing."

11. From the plain reading of the above said provisions of law, it is manifestly clear that the Market Committee is empowered only to levy or charge fee on the agricultural produce bought or sold by or through a dealer in the notified market area and Rule 56 of the Agricultural Produce Markets (General) Rules, 1979 has empowered a Market Committee to impose a penalty for non‑payment of fee which envisaged that if a person, firm or dealer habitually fails to deposit the market fee, the market committee on satisfying itself may charge any amount upto five times the fee as penalty. The penalty is on non‑payment of fee, if there is no market fee, no penalty can be charged from any person.

12. The respondent No.2/Market Committee has not determined the market fee nor there is any evidence that the petitioner has bought or sold any agricultural produce, if there is no purchase and sale of the agricultural produce by or through a dealer in the notified market area, no market fee is leviable. The respondent has determined‑Rs.10,100 as market fee but there is no evidence on record to establish that how much agricultural produce was bought or sold by the petitioner and from whom, the petitioner had bought or to whom he has sold the agricultural produce and which kind of produce.

13. For the purpose of levying market fee, the following ingredients must exit:‑‑. " (a) The commodity must be an agricultural produce. (b) It must be bought or sold by licensees: (c) It must be bought or sold in the notified market area. (d) The fee shall be leviable only on the parties to a transaction. (e) The transaction should be such in which delivery actually takes place. (f) The fee becomes leviable as soon as an agricultural produce is bought or sold by a licensee. If any of the ingredients is missing, then, no fees is leviable by the market committee. There is no proof on the record that who were the parties of the transaction and the transaction should be such in which delivery has been taken place: The only evidence, on which, the respondent relying is the judgment of the Additional Sessions Judge, Muzaffargarh, on the appeal directed against the order of A.D.M./M.I.C., Muzaffargarh, dated 30‑6‑1986 convicting the petitioner under sections 34(1) and 34(3) of the Agricultural Produce Market Committee Ordinance, while passing the judgment, the appellate Court had inspected the site and during visit some people appeared before him where they stated unanimously that the petitioner was running Karyana business without licence. The Karyana business is not the business of agricultural produce and a person who deals in the sale and purchase of agricultural produce is required to obtain the licence under the provision of subsection (3) of section 4 of the said Ordinance.

14. From the scanning of the record, it reveals that the petitioner was ID not a dealer and he was not dealing in sale and purchase of the agricultural produce, on which, the market fee is leviable.

15. The petitioner was challaned by the Market Committee under sections 35(1) and 34(3) of the Ordinance, which have provided the penalties for contravening the provisions of sections 4, 9, 19 and 23 and liable to be convicted to pay a fine of Rs.1,000 and in case of continuing contravention, with a fine which, in addition to such fine as aforesaid, may extend to one hundred rupees for everyday, after the first date of conviction.

16. The conviction of the petitioner is not the subject‑matter of the writ petition therefore; I need not say anything on such conviction of the petitioner.

17. As discussed above, the respondents have not been able to prove the petitioner as dealer and dealing in sale and purchase of agricultural produce nor they have been able to establish that which kind of agricultural produce and how much quantity of the said produce was the subject‑matter of the transaction. The respondents have not named the party with whom the petitioner had made the bargain of the agricultural produce. The matter having not been dealt with properly by the respondents. The petitioner had not been provided opportunity to establish his plea by producing his evidence. Reliance can be placed in this context on case of Sunshine Jute Mills v. Market Committee, Sheikhupura 1988 CLC 2280. If this is so, the petitioner would not be liable to pay the market fee and if the fee is not leviable, then, penalty could not be imposed on him:

18. In view of the above, I have no hesitation in observing that the impugned notice, dated 23‑7‑1988 decision of the Secretary, Market Committee, dated 3‑10‑1988 and order of respondent No. 1, dated 11‑12‑1988 for the recovery of market fee and penalty amounting to Rs.61,600 have been passed without lawful authority and of on legal effect.

19. For the foregoing reason, this writ petition is accepted. The impugned notice, decision and order by the respondents are set aside. There ~F shall be no order as to costs. H.B.T./M‑131/L ' Petition accepted.