2009 PLP 963 (CLC)

SYED HAMID ALI SHAH, J.

Anjuman-i-Arthian and Haji Muhammad Sharif, a commission agent, have jointly invoked extraordinary constitutional jurisdiction of this Court and voiced their grievance against order dated 4-5-2007 of respondent No.2 whereby respondent No.6 was permitted to raise construction of cold storage in the fruit and vegetable market Faisalabad at Plots Nos.253, 254, 255 and

256. They have also assailed the site plan of the market as amended in view of impugned order of the respondent No.2.

2. Learned counsel for the petitioners contended that four Plots bearing Nos.253 to 256 were converted into cold storage in the fruit and vegetable market, by the sanction of Special Secretary Agricultural Marketing. It is contended that sanction of Special Secretary is without jurisdiction. An allottee as per the terms and conditions of auction, can only transact the business of commission agent, in the fruit and vegetable market. Learned counsel then contended that Director Market Committees Provincial Funds Board, vide order dated 3-10 2006 declined the request of the respondents for modification of map and for the construction of the cold storage. The order of director was appealable. Respondents instead of filing an appeal, moved an application to the Minister. The impugned action has been initiated at the desire of Minister and as such it is nullity in the eye of law. Learned counsel in support of his contention referred to the case of Ahmad Khan v. Member (Consolidation) Board of Revenue Punjab Lahore and others PLD 1990 SC 1070. Learned counsel referred to Rule 4 of the Punjab Agricultural Produce Market (General) Rules, 1979 and contended that as per sub-rule (3) once the area is notified, for the establishment of the market, a licensee cannot transact any other business or set up a concern in violation of the terms and conditions of licence. He then referred to rule 6(5) and contended that any person aggrieved by an order can assail the same in appeal. Learned counsel referred to section 47 of Ordinance, XXIII and contended that it is the government which can annul the proceedings of the Market Committee or Sub-Committee and that too when such decision or the proceeding, is not in conformity with law, Rules or By-laws. The annulment can be made through an order in writing and on issuance of the notice to the aggrieved party. It was then submitted that government as defined in section 2 clause (h) means Government of the Punjab. Learned counsel in support of his contention, referred to the case of Muhammad Ismail and another v. Muhammad Hanif and others PLD 2007 Lah. 40.

3. Learned counsel for respondents Nos.4 and 5 contended that the petitioners are dealers/commission agents and their shop, in the same market is situated at a distance of about 1 K.M. from the shops, cold storage and not aggrieved of establishment of cold storage. Petitioners have approached this Court with a delay of 11 months and during this period, the construction was raised and cold storage is now functional. The writ is barred by laches and petitioner has no locus standi. Learned Assistant Advocate General contended that petitioners have not agitated the matter when cold storage was constructed. Petition at this belated stage is not competent. Learned counsel for respondent No.6 contended that earlier one, Liaquat Ali agitated the same matter in Writ Petition No.5375 of 2008 and the same was dismissed in limine on 19-5-2008. Instant petition is an indirect device. He contended that cold storage was constructed after seeking approval from the relevant authorities. Petitioners have no locus standi. The purpose of filing the petition is to blackmail the respondents. Instant petition was filed when petitioners failed to seek relief of injunction from the civil Court. He contended that permission for construction of cold storage was accorded by the competent authority for the benefits of growers and that is why the map was sanctioned. Petitioner has raised construction after obtaining loan from Bank Alfalah. He has invested more than 5 crores rupees and the same cannot be annulled on mere technicalities. He contended that section 21 of Ordinance, 1978 is subservient to section 20, which provides for construction of cold storage, warehouses and godowns.

4. Heard learned counsel for the parties and record perused.

5. Petitioners made a request to the Minister, who observed in his letter that grievance of the applicant be redressed in the larger interest for improvement of agricultural marketing. Director considered the request of respondent No.6, in the larger interest of growers and not solely on the basis that the Minister has recommended for positive action. Letter of the Minister also transpires that if large interest for improvement of agriculture marketing can be served, sought for permission could be considered Administrator Market Committee vide letter dated 14-6-2006 conveyed, "No Objection" for the grant of permission. Modification of map was accorded by the Director on 25-9-2006. Special Secretary gave sanction on 4-5-2007 and then the agreement was executed between the Government of the Punjab and the petitioner. The petitioner deposited fee for approval of plan and the construction was raised thereafter. The construction of cold storage was firstly challenged through a civil suit which was entrusted to Mr. Muhammad Wajid Minhas, Civil Judge Faisalabad, who rejected the plaint under Order VII, rule 11, C.P.C., vide order dated 8-9-2007. Respondent No.6 filed a suit for declaration and permanent injunction. The suit was decreed ex parte in favour of the petitioner. The civil litigation terminated in favour of respondent No.6. Petitioner, therefore, cannot agitate the matter, which has attained finality as orders/judgments of civil Courts were not assailed in appeals.

6. The construction of a cold storage, warehouses and godowns, is permissible and reference in this regard can be made to section 20, which provides that for creation of Market Committee Funds and the money received from the Market Committees will be deposited in such fund. The purpose of the Ordinance will be defrayed out of fund, after meeting the expenditure. Various purposes for expending the funds are mentioned in section

21. At Serial No.vii, it is mentioned that Market Committee Fund can be utilized for the construction of cold storage, warehouses and godowns. It is, therefore, wrong to contend that establishment of cold storage is prohibited in the market.

7. Appeal against the order of the Director was competent, but the same was not filed. The instant petition suffers from lathes. Keeping in view decisions of the civil Court, availability of remedy of appeal and bar of laches, I am not inclined to interfere in the matter at this stage.

8. For the foregoing, this writ petition is not competent and is accordingly dismissed. M.H./M-178/L Petition dismissed.