P L D 1957 (W (PLP)

No doubt it is true that the fruit and vegetables did not originally come within the definition of agricultural produce, but by virtue of the notification Exh. D. C. they have been declared to be agricultural produce for the purposes of the said Act. Section 4(2) of the Punjab Agricultural Produce Markets Act reads as follows:, " After the date of issue of such notification and from such later date as may be speci fied therein, no person unless exempted by rules framed under this Act, shall, either for himself or on behalf of another person, or of the Crown within the notified market area set up, establish or continue or allow to be continued any place for the purchase and sale of the agricultural produce so notified, or purchase or sell such agricultural produce except under a license granted in accordance with the provisions of this Act, the rules and bye‑laws made thereunder and the conditions specified in the license: Provided that a license shall not be required by a grower who sells himself or through a bona fide agent his own agricul tural produce or the agricultural produce of his tenants on their behalf or by a person who purchases any agricultural produce for his private use," It is an admitted fact that the petitioner had the requisite license issued by the Market Committee and under that authority he was selling agricultural produce such as fruit and vegetables at a place which was no longer under the jurisdiction of the Municipal Committee. Under these circumstances I find that the petitioner has committed no offence at all. I am fortified in this view by the judicial pronouncement of our High Court in R. S. A. 147 of 1953, "Firm Muhammad Sidiq, Barkat Ali, Vegetable Market, Ram Nagar, through Muhammad Sadiq and others v, Small Town Committee Ram Nagar. through its Secretary Ch. Nabi Bakhsh, Ram Nagar, Tahsil Wazirabad, District Gujranwala, the certified copy of which is on the record of this case. For the aforesaid reasons, proceeding under section 488, Criminal P. C., I report for orders of the High Court with a recom mendation that the conviction and the sentence of the petitioner under section 197 read with section 199 of the Punjab Municipal Act be set aside and the fine already paid by him be ordered to be refunded to him. Ismat Ullah Advocate for Petitioner. Sh. Maqbool Ahmad for (M. C. Gojra) for Respondent (M. C. Gojra). S. M. Naseem for, A. G. West Pakistan for the State. ORDER OF THE HIGH COURT S. A. RAHMAN, J.‑

This order will dispose of ten crimi nal revisions, in which references have been made to this Court by the learned Sessions Judge, Lyallpur. In each case the accused was convicted by Sardar Taimur Shah Khan, Magistrate 1st Class with summary powers, Lyallpur, and sentenced under section 197 read with section 199 of the Punjab Municipal Act, 1911, to pay a fine of Rs. 10, or in default of payment of fine to undergo simple imprisonment for a period of one week. The learned Sessions judge has recommended in his referring orders that the convictions and sentences be set aside and the fines already paid by the accused be refunded to them. The facts on which prosecution in all the cases was based are that the accused were selling fruits and vegetables in the Old Grain Market, Gojra, without having obtained a license from the Municipal Committee as required by section 197 of the Punjab Municipal Act, 1911. The defence in each case was that the accused's action was covered by a license issued by the Market Committee, Gojra, under the Punjab Agricultural Produce Markets Act, 1939, and the rules framed thereunder. I have heard Mr. Ismat Ullah on behalf of the accused petitioners and Mr. Maqbool Ahmad on behalf of the Municipal Committee, Gojra. Mr. S. M. Naseem has repre sented the State before me in these cases. On the 20th of June 1928, the Municipal Committee, Gojra, in exercise of powers conferred by section 197 of the Punjab Municipal Act, 1911, framed. a bye‑law, Exh. P. C., which is in the following terms :‑ " No person shall sell or expose for sale, wholesale retail or by auction, any fruit, vegetable or sugarcane within the municipal limits, except at premises licensed for the purpose by the committee: Provided that nothing contained in these bye‑laws shall apply in the case of potatoes or sweet‑potatoes, or to the sale, of fruits, vegetables or sugarcane by vendors who display their wares in hand‑carts or hawkers duly licensed or permitted by the committee to sell such articles of food." Bye‑laws 3, 4 and 5 which throw light on the object of the restrictions are also relevant and may be reproduced below :‑ "

3. Every license issued under bye‑law 2 shall be subject to the following conditions :‑ (a) That the licensee shall not keep on the licensed premises any fruit, vegetable or sugarcane that is rotten or decayed or overripe or is declared by the Secretary of the committee to be unfit for human consumption ; (b) that in the case of a stall in the municipal market the licensee shall not place or expose for sale any article in such a manner as to obstruct any passage in such market ; (c) that the Secretary or any officer authorised in this behalf by the committee may, by an order in writing, suspend any license for the breach of any of the conditions specified in clauses (a) and (b) above. (4) No person suffering from any contagious or infectious disease or from loathsome sores shall enter the licensed premises. (5) Every occupier of licensed premises shall keep the premises in a thoroughly clean condition, and shall allow no refuse to remain in or about such premises and shall, from time to time as often as occasion may arise, cause such refuse to be placed in a receptacle to be provided for the purpose." Bye‑law 6 which derives its vires from section 99 of the Municipal Act, provides that any person, who commits a breach of any of these bye‑laws, shall, on conviction by'a Magistrate, be punishable with fine which may extend to fifty rupees ; and, if the breach is a continuing one, with a further fine which may extend to five rupees for every day after the first during which such breach continues. The relevant provisions of the Punjab Agricultural Produce Markets Act, 1939, may now be referred to. Section 2(a) of that Act defines "agricultural produce" as meaning cotton, wheat, barley, rice, etc., or any product derived from anyone of them or any other commodity that may be declared by notification to be agricultural produce for the purposes of the Act. It is common ground between the parties that fruits and vegetables, inter alia, have been notified as agricultural produce by the Government under the Act. Section 3 of the Act lays down that the Government may, by notification, declare their intention of exercising control over the purchase and sale of such agricultural produce and in such area as may be specified in the notification. After considering objections or suggestions received by the Government (to be submitted within the specified period) the Government may, by notification and in any other manner that may be prescribed, declare under section 4 of the Act the area notified under section 3 or any part thereof to be a notified market area for the purposes of the Act in respect of the agricultural produce notified under section 3 or any part thereof. Subsection (2) of section 4 provides that after the date of issue of such notification and from such later date as may be specified therein, no person, unless exempted by rules framed under the Act, shall, either for himself or on behalf of any other person or of the State, within the notified market area, set up, establish or continue or allow to be continued any place for the purchase or sale of such agricultural produce, except under a license granted in accordance with the provision of the Act, the rules and bye‑laws made thereunder and the conditions specified in the license. There is a proviso to this subsection which exempts a grower who sells himself or through a bona fide agent, his own agricultural produce or the agricultural produce of his tenants on their behalf, or a person who purchases any agricultural produce for his private use from. such a licensee. Exhibit D. B. is a copy of memorandum No. 3461‑C, dated the 11th of June 1952, addressed by the Under Secretary to Government Punjab, Resettlement and Colonies Depart ment, to the Commissioner, Multan Division, on the subject of transfer of control and management of the Old Grain Market, Gojra, from the Municipal Committee to the Market Committee. It is recited therein that in the circumstances explained in the Commissioner's letter, the Governor of the Punjab is pleased to order the resumption of an area, measur ing 5 acres, 6 kanals 13 marlas and 7 square feet, lying vacant in the Old Grain Market, Gojra, Lyallpur District, from the control of the Municipal Committee; Gojra, and its lease to the Market Committee, Gojra, at the rent specified, for the term of the current settlement. This area was subsequently notified as the market area under section 4 of the Act, read with rule 5 framed thereunder. A Market Committee has been duly constituted under the Act and is functioning in Gojra in the area mentioned above. Rule 7 exempts certain persons or authorities from the necessity of taking out a license for the purchase. or sale of agricultural produce. The view taken by the learned Sessions judge and that pressed by Mr. Ismat Ullah before me is that the jurisdiction of the Municipal Committee had been ousted from the area under the control of the Market Committee and any person selling fruit or vegetables in that area, under a license issued by the Market Committee, could not in law be required to take out a further license from the Municipal Committee, under the bye‑laws framed under the Punjab Municipal Act, 1911. All the accused‑petitioners had duly taken out licences for the business of selling fruits and vegetables in that area from the Market Committee and they, therefore, denied their liability to take out another license from the Municipal authorities. The, first question that falls for determination is whether the area under the control of the Market Committee, Gojra, is within municipal limits or not. The Provincial Government is empowered under section 4 of the Punjab Municipal Act, 1911, to define the limits of the local area which is to be constituted a municipality. Under section 5 of this Act, the Provincial Government may, by notification published in the Official Gazette and in such other manner as it may determine, declare its intention to alter the limits of the municipality by inclusion of any other area, and similarly section 6 gives power of exclusion of any area from a munici pality, by a notification. Before, however, such an exclusion can take place, time has to be given under section 7 of the Act for objections to be submitted to the proposal, within the time fixed, and it. is the duty of the Provincial Government to consider those objections before passing final orders. One consequence of this exclusion would be, by virtue of section 8 of the Act, that all notifications, rules, bye‑laws, etc,, issued under the Act, shall cease to apply to such areas. It is conceded before me that no such notification has been issued by the Provincial Government for the exclusion of the area handed over to the control of the Market Committee from the Municipality of Gojra, Prima facie, therefore, the area con trolled by the market committee is still within the municipal limits and is subject to all the incidents of the municipal laws, bye‑laws and regulations. Mr. Ismat Ullah has contended before me that section 7 of the Punjab Municipal Act, 1911, could be held to have been impliedly repealed, by the enactment of . the Punjab Agricultural Produce Markets Act, 1939, in so far as the area controlled by the market committee is concerned. I am unable to accede to this contention as correct. There is nothing in the Punjab Agricultural Produce Markets Act, 1939, leading to such an inference. There is no express provision of repeal and, unless there is a compelling reason to the contrary, the F Courts must always lean against an interpretation which invol ves an implied repeal of an existing statute. In so far as both the Acts prohibit the sale or purchase of fruits and vegetables without the requisite license, they are undoubtedly, couched in negative terms. Inter se, however, they are not repugnant to each other and can stand together. I see no inconsistency between their provisions. It cannot be said that the co existence of the two sets of provisions would be destructive of the object for which the later Act was passed. The bye laws framed by the Municipal Committee have obviously the objective of sanitation in their background. On the other hand, as is made manifest in the title and the preamble of the Punjab Agricultural Produce Markets Act, 1939, the object of this Act is to provide for the better regulation of the purchase and sale of the agricultural produce in the Punjab and for that purpose to establish markets and make rules for their proper administration. It is clearly intended to regulate trade practices in the market area. The two objects do not conflict with each other and, therefore, there is no reason for suggesting that the provisions of the earlier Act have been superseded by those of the later. This view is in conformity with well recognised canons of construction. Reference in this connection may be made to Chapter VII of Maxwell on Interpretation of Statutes (9th Edition). My view, therefore, is that the later Act has merely imposed an additional obliga tion on persons wanting to sell fruits and vegetables in the area controlled by the Market Committee, to obtain a license from that committee. over and above the license required to! be taken out under the bye‑laws framed by the Municipal Committee. Failure to take out either license would entail the penalty provided by the relevant law. This view is further supported by the analogy of the decisions in the following authorities :‑ Corporation of Madras v. Madras Electric 2 Tramways Ltd., (A I R 1931 Mad. 152 (D B)), Charing Cross and Strand Electricity Supply Corpo ration v. Woodthorpe (88 L T R 772) and Uckfield Rural Council v. Crowb -borough Water Co., (L J R (1899) p. 1009). to which my attention was drawn by Mr. Maqbul Ahmad. The view that has been taken in these authorities is that the existence of supervision on the part of a plurality of the authorities, does not by itself necessitate the view that the functioning of those authorities would lead to friction. The test in each case is whether the enactments in question can stand together or not. If they can, there is no reason why the provisions of both the enactments should not be enforced simultaneously. The learned Sessions judge has relied on an unreported judgment of a single judge of this Court in R. S. A. No. 147 of 1953 decided on the 24th of July 1954, The facts of that case were that the Small Town Committee, Ram Nagar, District Gujranwala, auctioned the use of its vegetable and fruit market for the year 1950‑51, the firm of Muhammad Sidiq Barkat Ali being the successful bidders. The Small Town Committee virtually proposed to create a monopoly for the sale of vegetables and fruits in that area, by the successful bidder. The latter, however, failed to pay the amount of the bid within the time allowed and there was a re‑auction. Under the terms of the auction, the loss incurred by the Small Town Committee was sought to be recovered from the firm of Muhammad Sidiq Barkat Ali. This firm pleaded that the municipality, in contravention of its own assurance, had taken no action against other persons who had begun to sell vegetables and fruits in the municipal area to the prejudice of the contractors. The late Soofi, J. took the view that in so far as the contract provided for the creation of a monopoly, it was void and further that the vegetable market set up by the Small Town Committee and the lease thereof, came to an end, as soon as it was notified under the Punjab Agricultural Produce Markets Act, 1939, that that area had been included within the notified market area of Akal Garb. With all deference to the opinion of Soofi, J., I am unable to share his view that the constitution of a market committee under the Punjab Agricultural Produce Markets Act, 1939, automatically superseded the authority of the municipal committee to act under the statute which conferred certain powers of regulations of trades on them for their own purposes. Mr. Ismat Ullah tried to argue that the municipal authorities may refuse to issue a license to a person who may have armed himself with a regular license from the market committee for sale of fruit and vegetables and this would lead to a stalemate. Such an apprehension to my mind is more imaginary than real. The municipality cannot act arbitrarily, unreasonably or perversely in this matter. If they do so, the person concerned would have a remedy by civil action, provided that the premises in which the sale of fruit and vegetables is intended to be carried on, conforms to the sanitary provisions made by the municipal committee in its bye‑laws. I can see no valid reason why they should refuse to issue a licence to a regular applicant in respect of hygienic premises. There is consequently no substance in the argument that in view of a possible conflict of authority between the municipal committee and the market committee, the powers of the municipal committee should be held to have been superseded. In view of the above discussion, I am unable for accept the recommendation made by the learned Sessions judge in these cases. In my opinion, there was a contravention of the bye‑laws framed by the Municipal Committee, in respect of the necessity of a licence for the sale of fruit and vegetables within the municipal limits, by the accused‑petitioners and they were rightly convicted and sentenced. I, therefore, decline to interfere in revision and direct that the records be returned. A.H. Order accordingly.