1983 PLP 785 (SCMR)

MUHAMMAD GUL, J.‑This leave petition is from the order of the Lahore High Court dated 2‑12‑1975 to a civil revision arising in a representative suit by the petitioner herein on behalf of himself and on behalf of a number of traders in farm products carrying on business within the limits of Municipal Committee, Tandlianwala, District Lyallpur. It appears that the plaintiffs have been carrying on their business in shops under licence issued respectively to them under section 6 of the Agricultural Market Produce Act, 1939 (Punjab Act V of 1939) and the Rules framed there under. Under the scheme of that Act, licences once issued were renewed automatically each year unless revoked, suspended or cancelled by an order by the appropriate authority, and it was permissible to carry on business of purchase, sale etc. of farm produce in one's own shop in what was notified as the "market area" under the Act. The Punjab Act of 1939 has been repealed by the Punjab Local Government Act, 1975 (Punjab Act XXXIV of 1975) which came into force on 3‑4‑1975. Under section 4 of the latter Act, Rules framed under the former Act in so far as they are not inconsistent with the provisions of the 1975 Act are preserved. However, the provisions of the new Act, are somewhat at variance with the provisions of the earlier Act. Chapter XVIII of Act of the 1975 inter alia provides for the setting up of the Farm Markets for the purpose of purchase, sale and preservation of farm produce within the limits of a Municipal Committee or a Halqa Council with the sanction of the Provincial Government. Vide subsection (2) of section 156 the Municipal Committee and Halqa Councils are expressly charged with the responsibility of "construction and maintenance of‑‑‑‑‑‑‑shops, platforms‑‑ ‑‑and other facilities in the farm markets". Under section 157 of the Act, the Deputy Commissioner is empowered on the recommendation of the Zilla Council to notify the market area "area a Farm Market". Section 160 of the Act, forbids, after the‑ issuance of the said notification unless exempted by the rules, the carrying on business in farm produce in a market area except under a licence granted under the provisions of the Act, or under the rules or bye‑laws framed there under and subject to the conditions laid down for the grant of such licences. On the 30th July, 1975 a notification No. S O (S & M)‑X‑53/72 was issued by the Provincial Government prohibiting the establishment of any market within the market area of any Market Committee unless the site for the same had been approved by the Provincial Government. Any contravention of the conditions in the notification was made punishable with fine extending to Rs. 50,

000. This notification was published in the official Gazette on the 20th November, 1975. It appears that the Municipal Committee Tandlianwala had with the approval of the appropriate Authority constructed a regular market for the farm produce. The effect of the notification dated the 30th July, 1975 is that the plaintiffs are forbidden to carry on business in the farm produce in their shops in which they hitherto carried on their business as merchants of farm produce, their shops being outside the notified Farm Market. For the avoidance of the prohibition under the 1975 Act, and the notification issued, the Plaintiffs instituted a suit for a declaration and perpetual injunction against the Market Committee, Tandlianwala to restrain the Committee from preventing them from carrying on business in their own shops outside the notified farm market as they hitherto had been doing under the 1939 Act. Alongwith the plaint they also moved an application for interlocutory injunction under Order XXXIX, rules 1 and 2, C. P. C. so that they may continue their business uninterrupted during the pendency of the suit. The learned trial Judge refused injunction on 21‑5‑1975 against which the Civil Revision No. 686 of 1975 has also been dismissed by the High Court on 2‑12‑1975 against which the plaintiff‑petitioners seek leave to appeal. Learned counsel for the petitioners argued that the notification dated the 30th July, 1975 according to its preamble was issued in exercise of the powers of the Provincial Government tender section 27 of the Agricultural Produce Markets Act, 1939, which as pointed out earlier, already stood repealed with the coming into force of the Act of 1975 on 3‑4‑1975. It was therefore, stressed that the whole basis for the prohibition purported to have been introduced under the notification crumbled down because the notification was issued under a dead law. It is true that the preamable of the notification contains a reference to the repealed Act of 1939, as the source of power for the notification. This indeed is a serious lapse. But this is not to say that the notification was ultra vires for that reason for the relevant purpose, because statutory power is available otherwise under the 1975 statute. It is well‑established principle that an erroneous reference to the source of power under which a notification purports to have issued would not nullify the effect of the notification if power is available aliunde. In the instant case it is not controverted that for the relevant purpose ample power was available to the Provincial Government in the provisions under XVIII of the 1975 Act. It was also argued by the learned counsel that although the notification purported to have been signed by the Secretary to the Government in the Agriculture Department on the 30th July, 1975 it was actually published in the official Gazette on the 20th November, 1975. Therefore, according to learned counsel the notification operated retrospectively and being subordinate legislation could not operate retrospectively. In support of this argument reference was also made to the provisions of section 222 of the 1975 statute which read :- "(1) All bye‑laws shall be made subject to the condition of previous publication. (2) All rules and bye‑laws shall be notified. (3) Copies of rules and of bye‑laws pertaining to a Local Council shall be kept available at the office of the Local Council for inspection and sale. (4) All rule and bye‑laws when duly made shall be deemed to form part of this Ordinance and shall have effect accordingly." A plain reading of the section will make it clear that the condition of previous publication in the official Gazette is confined to bye‑laws only an not to the rules or 'any notification issued there under. In the instant ca the mere fact that the publication of notification was delayed until the 20th November, 1975 will not invalidate or otherwise make its operation retrospec tive from any date prior to the 30th July, 1975 when it was actually signed though not published in the official Gazette. Learned counsel finally submitted that as a result of the notification the petitioners have been virtually thrown out of their business : he claimed legal right for them to carry on business in their own shops where they had established goodwill. It was also submitted that the notification was issued without any notice to the petitioners and therefore it offended against the principle of natural justice enshrined in the maxim audi alteram partem. The argument is wholly devoid of force. The notified market was established under the statutory power flowing from the 1975 Act, and not by any judicial process. Every new Act, or a rule framed there under interferes with private Tights. Nobody has ever thought of questioning the virtues of the statue or a rule or a notification that it offends against the rule of audi alteram partem‑ Even Article 18 of the Constitution guarantees the' right t engage in "lawful" trade or profession, which is an antithesis of an absolute right. However that may be, the petitioners seek relief against an order which was entirely discretionary which the Court have throughout refused. This per se is good ground to refuse leave. For all the foregoing reasons the petition is dismissed. Petition dismissed.