1999 PLP 49 (CLC)

Preamble.‑‑‑ Whereas it is expedient to provide for the better regulation of purchase and sale of agricultural produce and for that purpose to establish markets and make rules for their proper administration in the manner hereinafter appearing. (2) Definitions.‑‑‑ (a) 'agricultural produce' means oil seeds viz., cotton seed, linseed, sarson, raya, toriya, taramira, soyabean, sunflower, til, groundnut, castor, palm and their oils, oil cakes, hulls, meals feeds, vegetable Ghee; (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; 'Grower' means a person who by himself or through tenants or otherwise grows, rears, produces, manufactures or processes agricultural produce but shall not include a person, other than a member of a society registered under the Cooperative Societies Act, 1912, who works as a dealer or broker either individually or as a partner of a firm of dealers or brokers or is otherwise engaged in the business of disposal, storage or processing of agricultural produce;

32. Recovery of dues.‑‑‑ (1) All sums due from a market committee to the Government may be recovered in the same manner as arrears of land revenue. (2) Any amount due to a market committee shall be recoverable as arrears of land revenue.

35. Powers to make rules.‑‑‑(1) The Government may, either generally or specifically for any notified market area or areas, make rules consistent with the Ordinance for carrying out all or any of the purposes thereof. (2) In particular and without prejudice to the generality of the foregoing power such rules may provide for‑‑‑ (i) appointment and removal of members of market committees; (ii) power to be exercised and the duties to be performed by the Market Committees; (iii) election of the chairman and vice‑chairman of market committees and their powers and term of office; . (iv) filing of casual vacancies in the office of members or in the office of chairman or vice‑chairman of market committees; (v) time, place and manner in which a contract between buyer and seller is to be entered into and money is to be paid to the seller; (vi) management of the market, maximum fee which may be levied by market committees in respect of agricultural produce bought or sold by licensees in the notified market areas, and the recovery and disposal of such fee; Section

39. Repeal.‑‑‑ (1) Sections 156 to 163 Chapter (XVIII) of the Punjab Local Government Act, 1975 (XXXIV of 1975) are hereby repealed. Rules: 2(k).‑‑‑ 'Market Fee' means fee levied under section 19 of the Ordinance on sale or purchase of agricultural produce within the limits the notified market area. (n) 'Seller' means a person who sells agricultural produce either himself or on behalf of another as his agent or servant or as a Commission Agent.

36. Levy and collection of fees on the sale and purchase of agricultural produce. (1) Fees prescribed under sub‑rule (10) shall be leviable as soon as an agricultural produce is bought or sold by the licensee. In case the buyer and the seller are both licensees, the fee shall be paid by then in equal shares, otherwise it shall be paid in full by whatsoever is a licensee under section 6 of the Ordinance. (10) The following is the schedule of market fee prescribed for the stated agricultural produce, chargeable by the market committees in Punjab; Oilseeds, viz., cotton seed, linseed, sarson, raya, toria, taramira, soyabean, sunflower, til, groundnut, castor, palm, their oils, oilcakes, hulls, meals, seeds and vegetable ghee; (0.50)

38. Account of transaction and of fees to be maintained.‑‑‑ (1) Every licensed dealer and every dealer not being a hawker, exempted under Rule 8 from obtaining a licence shall submit on the same day or on the following day to the market committee a return in Form ' H' A showing his purchase in respect of each commission agent (known as pacca arhtia), and sales in respect of each dealer, as regards each item of agricultural produce: Provided that in special cases of hardship the chairman of the market committee may, by an order in writing, extent this period to a maximum of seven days from the date of the transaction. (2) The market committee shall maintain a register in Form ' J' showing the total purchases and sales made by dealers and the fees recoverable and those recovered from them. (3) The market committee shall levy the fee payable under section 19 of the Ordinance on the basis of the return furnished under sub‑rule: Provided that if the market committee has reason to believe that any such return is incorrect, it shall, after notice to the dealer concerned, and after such enquiry, as it may consider necessary, assess the amount of the dealer's business during the period in question and levy fee on the basis of such assessment. (4) If a dealer fails to submit a return as prescribed under sub‑rule (1), the market committee may, after issue of notice to him, assess the amount of his business during the period in question on the basis of such information as may be available and levy the fee accordingly."

5. The Honourable Supreme Court has dealt with the abovementioned provisions of law in detail in Noor Sugar Mills' case PLD 1989 SC 449 and the relevant observations in paragraphs 7, 8, 9 and 10 are reproduced hereunder:‑‑‑

"To examine the liability of the appellants to pay market fee, it would be convenient to take notice of the relevant provisions of the Punjab Agricultural Produce Markets, Act, 1939. It may be mentioned that this Act has since been repealed and replaced by the Punjab Agricultural Produce Markets Ordinance, 1978. However, that may be, the Act was passed with the object, as its preamble stated, to provide for the better regulation of the purchase and sale of agricultural produce in the Punjab and for that purpose to establish markets and make rules for their proper administration. In section 2(a), the expression 'Agricultural produce' was defined. It is unnecessary to set out the definition in extenso; suffice it to say that it included sugarcane as well. Section 4(1) enabled the Provincial Government, after hearing public objections and suggestions, to declare certain areas wherein it was intended to exercise control over the purchase and sale of agricultural produce to be notified market areas. Section 4(2), inter alia, stated that after a notification specifying certain localities as notified market areas had been issued no person would purchase or sell any agricultural produce therein without a licence granted in accordance with the provisions of the Act, rules or by‑laws made thereunder. The embargo, however, did not extend to a grower who wished to sell either himself or through a bona fide agent his' own agricultural produce or agricultural produce of his tenant or to a person who purchased agricultural produce for his private use.

8. Section 7 required the Provincial Government to set up a market committee for every market area in respect of which a notification had been issued under section 4(1) section 8 set out the composition of the market committees. Section 9 laid down the duties of the market committees; thus, a market committee was required to establish markets with facilities for persons visiting them in connection with the purchase, sale, storage, weighing, pressing and processing of agricultural produce. It was also to issue licences to brokers, weighmen, measurers, surveyors, warehousemen, changers, Palladars etc. for carrying on their occupations in the notified market areas.

9. Section 19 empowered the market committees' to levy fees on the agricultural produce bought or sold by licensees in the notified market areas. Section 20 provided for the constitution of a Market Committee Fund. The fees levied under section 19 together with all other moneys received by a market committee were to form part of that Fund. Section 2f detailed the purposes for which the Fund could be expended. The purposes included maintenance and improvements of the markets, the provisions and maintenance of standard weights and measures, the collection and dissemination of information regarding all matters relating to the crop statistics and marketing in respect of agricultural produce and propaganda in favour of agricultural improvement and thrift. Section 27 empowered the Provincial Government to make rules for carrying out the purposes of the Act.

10. The legal sanction behind the fees demanded by the market committees from the appellants in section 19 of the Punjab Agricultural Produce Markets Act. The section reads as follows:‑‑ 'The market committee may, subject to such rules as may be made by the Government in this behalf, levy fee on the agricultural produce bought or sold by licensees in the notified market areas and the Government shall make rules specifying the maximum rates of the said fees'." Similarly, the dealer was also interpreted in the aforesaid case in the following terms:‑‑‑ "Even otherwise, the fact the petitioner used the sugarcane purchased by him for manufacturing or extracting sugar out of it rather goes to show that the purchase was not for a private use but for doing a commercial business." Mr. Justice Karam Elahi Chohan while interpreting section 19 of the Act and Rule 29 laid down following ingredients for the purposes of levying market fee PLD 1979 Note 142 at p.215‑‑‑ "(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. (t) The fee becomes liable as soon as an agricultural produce is bought or sold by a license." The Honourable High Court in Messrs Rafhan Maize Company's case laid down the following principle:‑‑‑-- "The purposes of the Act are not only to help the growers but also to regulate the trade etc. of the various items of agricultural produce as laid down in Abdur Rasheed v. The State PLD 1957 Lah, 400 is authorized by the provisions of Act itself and imaginative plea of the kind under examination cannot reflect upon the validity of the aforesaid fee. The matter of the levying, of the fee has been examined by him in detail in Writ Petition No.322 of 1975 titled Messrs Kohinoor Sugar Mills v. Market Committee decided on 4‑5‑1976 and I need not repeat that discuss over here again. Highsons Sugar Mills Ltd. case, PLD 1976 Lah. 1334 laid down a principle that word sugar as distinct from sugarcane and from that point of view levy of fee on sugar was perfectly justified. It is the duty and obligation of the petitioner to obtain licence from the respondents, as is held by the Honourable Supreme Court in Noor Sugar Mills case PLD 1989 SC 449, PLD 1957 Lahore 400, Abdur Rasheed's case. The object of the Act was also taken note of by the Honourable Lahore High Court in Khan Umar Khan's case PLD 1972 Lahore 497 in the following terms:‑‑‑

"The object of the Act is to provide for the better regulation of purchase and sale of agricultural produce in the province and to establish markets for the purposes. The Provincial Government has the power to make a declaration under section 4 of the Act to specify and declare by notification any area to be notified market area. It is further said in subsection (2) of section 4 that after such a notification no person unless exempted by rules, can deal in agricultural produce except under a licence granted in accordance with the provisions of the Act. Under section 19 the powers of levying fees has been given to the Provincial Government on the agricultural produce bought or sold by the licensee in the notified areas. It was open to the Provincial Government on the agricultural produce bought or sold by the licence in the notified areas. It was open to the Provincial Government to notify the area of Jhelum Cantonment as market for the purposes of the Act. The impugned notifications are, therefore, valid." The word "grower" was interpreted in Sardar A.R. v. Government of Punjab case 1989 MLD 1561 in the following terms:‑‑‑

"A grower is a person who by himself or through tenants or otherwise grows, rears, produces, manufactures or processes agricultural produce, except a person who is a member of a Cooperative Society is a dealer or broker either independently or as a partner of such forum or doing the business of disposal, storage or processing of agricultural produce. The mere fact that a person is an Advocate would not itself disentitle him to become a grower, if he fulfils the conditions precedent laid down in section 2(g) of the Ordinance." Now I intend to examine in the light of the aforesaid provisions of law and precedents whether the vegetable Ghee is Agricultural produce or not? Section 2(a) may be read as follows:‑‑‑

"Agricultural produce means oil seeds Soyabean, Palm and their oils, vegetable ghee. By mere reading the definition which reveals that it also includes certain commodities as 'Agricultural Produce' which are not agricultural produce but products for example Gur and Shakkar, and sugar. I am fortified by the judgment of the Honourable Supreme Court and Lahore High Court PLD 1989 SC 449, PLD 1997 Lah. 1334. This is permissible because the definition as given in this Ordinance is very exhaustive and covers almost all commodities generally grown and used. In simple words Agricultural produce means "oil seeds and vegetable ghee". The word "and", is normally used conjunctively and not disjunctively. Reliance can be placed on PLD 1977 Lah.

461. The meaning of word "and" in Words and Phrases by M. Ilyas Khan:‑‑ "A conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken alongwith the first. It expresses a general relation or connection, a participation or accompaniment in sequence, having no inherent meaning standing alone but deriving force from what comes before and after it." The word "and" also includes vegetable ghee as Agricultural Produce with reference to oilseeds. It is settled principle of law that definitions of one Act or Ordinance cannot be extended to any other enactment unless the latter particularly adopts them for its purpose by legislation with reference or adoption, therefore, vegetable ghee is agricultural produce under the provisions of Ordinance, although it is new product through chemical process. Our Constitution is based on trichotomy and Court has only right to interpret the law. I am fortified by the judgment of Honourable Supreme Court in Zia‑ur Rehman case, PLD 1973 SC

49. The legislative body has a prerogative for example an "ass" may, for the purpose of a particular legislative measure, be defined as a "horse". Similarly, woman be defined as a man, but this does not mean that, for all other purposes, as an "ass" will be treated as a "horse" and "woman" a "man". The Court has no authority under the power of interpretation to read this definition in all other enactments specifically when the word is defined in a particular law to set out the exact scope of the different provisions of the law, therefore, general meaning of the words could not be taken, into consideration on the basis of well known principle of law that special excludes the general. Reliance can be placed on PLD 1973 SC 49 and PLD 1985 SC

159. The mere fact of a vegetable ghee falling within the definition of section 2(a)(xiv) to be ceased to be owned, by a grower and changed into the hands of dealer does not change/deprive it of its original character as an agricultural produce and unless otherwise revealed by express terms of the law p would equally apply to all times of an agricultural produce whether owned and possessed by growers or dealers. The commodity is not restricted to produce in Punjab but equally applies to imported commodities imported into Punjab Province from outside, therefore, provisions of the law will apply to all terms/ commodities covered by the aforesaid definition no matter where the commodity was produced because the term has been used in an unqualified sense. This further seems to be valid being based on common sense/logic on ground of expediency also there could be no justification for providing for the better regulation of the sale and purchase of certain commodities produced in the Punjab and referring the benefits of this law to the same commodities imported into the province from outside. The defects which this law intended to remove were not confined to the sale and purchase of commodities were not immune from these. In view of these circumstances, if any commodity covered under the aforesaid definition its sale and purchase would be regulated by the provisions of this Ordinance irrespective of the place where such term was produced. In other words that the commodities which are either imported or purchased from outside limits of notified area are not exempted as the provisions of the Ordinance reveal the intention of law‑maker otherwise. It is for the Legislature to resolve a casus omissus in a statute and not for the Court to remedy the defect. I am fortified by the observation from the Book understanding statutes by Mr. S.M. Zafar and the relevant observation from the heading mistakes in an Act of Parliament at page 893 is as follows:‑‑‑ "There is a strong presumption that parliament does not make mistakes. If blunders are found in legislation, they must be corrected by the Legislature, and it is not the function of the Court to repair them. Thus, while terms can be introduced into a statute to give effect to its clear intention by remedying mere defects of language and to rectify obvious misprints or misnomers, or obvious mistranslations of an international convention, no provision which is not in the statute can otherwise be implied to remedy an omission, even if it is evidently unintentional." Similarly the petitioner is not grower as defined by the Ordinance vide section 2(g) as the petitioner company falls in exclusion part of the definition, as is evident in case section 2(g) is read in the following manner:‑‑‑ "'Grower' means a person who by himself manufacturers or processes but shall not include who works as a dealer or is otherwise engaged in the business of disposal, storage or processing of agricultural produce." Mere reading the aforesaid section 2(g) petitioner company is not a grower as is held by the Honourable Supreme Court in Noon Sugar Mills case PLD 1989 SC 449: On the same analogy the petitioner Company is a dealer there is no condition precedent that the ordinary meaning of dealer be read in the section 2(b) when the words of section 2(b) itself are very clear. It is not the function of the Court to read into an enactment words that are not there. The Courts are to construe its provisions according to their plain meaning and not to supply the deficiencies of the Legislature. It is settled principle of law that Courts cannot add and amend, and, by construction, make up the deficiencies which are left there. Therefore, action of the respondents is in accordance with the provisions of the Ordinance and Rules coupled with the circumstances that the petitioner's company paid the market fee till 1991 for 13 years and this fact was duly noted at the time of deciding the application of the petitioner under section 249‑A, Cr.P.C. and the provisions of the Ordinance was interpreted. The petitioner did not agitate the same before any higher forum, therefore, petitioner is estopped to agitate the same on the well known principle of estoppel, waiver and the finding of the Assistant Commissioner is final against the petitioner on the principle of res judicata. I am fortified by the judgment of the Honourable Supreme Court PLD 1987 SC

145. The application was decided on merits, although in criminal side yet this Court can take judicial notice of the judgment, as is held by the Supreme Court in Sabir Shah's case PLD 1995 SC 66.

6. In view of what has been discussed above, this writ petition has no force and the same is dismissed with no order as to costs. A.A./S‑235/L Petition dismissed.