P L D 2005 Karachi 281 (PLP)

Date of hearing: 7th September, 2004. SABIHUDDIN AHMED, J.‑‑‑The petitioner is aggrieved by the notices of the Respondent No. 1 demanding Rs. 239,200 as market fee under the Agricultural Produce Markets Act, 1939 (APM Act) and the subsequent notice of the then respondent No.2 threatening recovery under the Land Revenue Act. It is not necessary to recount the factual background as the short controversy appears to be whether the petitioners who had already obtained licences under the aforesaid Act were liable to pay market fee on the Soya bean oil and palm oil imported from foreign countries for their vegetable oil manufacturing factory located within the territorial limits of the Respondent No. 1.

2. Mr. Sulleman Habibullah learned counsel for the petitioner basically raised the following contentions: (i) The whole of Karachi could not be declared as a notified market area as much as the statute provides for levy of market fee and not a tax on transactions. Therefore, by its inherent nature such fee could be rendered only in places where certain facilities were provided by the Committee. (ii) In any event the soya bean and palm oil was imported by the petitioner and no transaction took place within the notified market area as such no fee was payable. (iii) The petitioner is not a "dealer" engaged in sale and purchase of agricultural produce and therefore not liable to pay market fee.

3. We have carefully considered all the questions raised before us on behalf of the petitioner. Indeed Mr. Sulleman Habibullah appears to be right in contending that the market fee leviable under the APM Act is a fee and not a tax and therefore some nexus with the nature of services rendered by the Market Committee must be shown. Nevertheless, it does not appear to be quite correct to say that the fee under the Act is only payable upon transactions effected within a market set‑up through the Market Committee funds under section 21 of the Act. Section 21 no doubt enables the funds of the Market Committee to be expended inter alia for acquisition of sites for a market, its construction, repair, maintenance arid improvement. The word "market" has been defined to mean a building, blocks of building, enclosure or other area which may be notified as such under the Rules. Nevertheless, section 19 is the charging section requires levy of fee on agricultural produce bought or sold in a "notified market area". The Honourable Supreme Court in Noon Sugar Mills v. Market Committee and others (PLD 1989 SC 449) held that such fee was payable with respect to transactions effected in a market but in a notified market area under section 4 was of much wider import.

4. It may also be gathered from the scheme of the Act that whereas funds of a Market Committee may be utilized inter alia for setting up of markets they can be used for a variety of other purposes intended to facilitate sale and purchase of agricultural produce in the whole of market area. It is well‑settled that whenever a fee is imposed by the legislature it is impossible for the Courts to work out the benefit derived by the persons required to pay with mathematical exactitude and the levy could be upheld once it is shown that some nexus exists between the amount required to be paid and the facilities likely to be obtained. In the circumstances', it appears perfectly logical to assume that a market was established for facilitating transactions relating to agricultural produce for the whole of Karachi and therefore, a notification declaring the entire city to be a notified market area seems to be unexceptionable.

5. Coming to the next contention of the learned counsel, it may be stated that no material has been placed on record to establish that the contracts for purchase of oil were made by the petitioner outside the territorial limits of notified market area. The Respondent No. 1 in their counter‑affidavit have also averred that there was no authentic proof of the fact that such contracts were made outside Karachi. Moreover, proviso (a) to section 19(2) stipulates that no fee shall be leviable in respect of a transaction in which delivery of the agricultural produce brought or sold is not actually made is therefore, follows that fee became payable not upon mere signing of the contract (which might have taken place abroad but upon actual delivery which was obviously made at the petitioner factory premises). This contention therefore, must also fail.

6. Finally it was urged by Mr., Sulleman Habibullah that the petitioner was not a dealer nor was the purchase of oil made through a dealer and therefore, he was neither required to obtain a licence under the A.P.M. Act nor pay any market fee. The contention appears misconceived for a number of reasons. Though market fee was only payable by dealers under section 19 of the Punjab Agricultural Produce Markets Act, 1939 (as observed by the Honourable Supreme Court in Noon Sugar Mills v. Market Committee (PLD 1989 SC 449). The charging section was substituted in Sindh through Sindh Ordinance XIII of 1980 and the word "licence" was omitted from section 19, therefore, the question of the petitioner being a dealer becomes irrelevant. In any event section 6 requires that any person who works as a dealer in a notified market area must obtain a licence and the definition of the expression "dealer" is not confined merely to a person who both purchases and sells but to any one who is engaged in either of the two activities it has been held in Noon Sugar Mills v. Market Committee (PLD 1989 SC 449) and Mirpurkhas Sugar Mills. v. Government of Sindh (1993 SCMR 920). In view of the above weighty pronouncements of the Honourable Supreme Court we find no merits in this contention.

7. Mr. Sulleman Habibullah also attempted to argue that the oil imported by the petitioner was meant for their own use and not for sale and therefore, their case could be covered by the proviso to section 4(2). A similar contention was raised in the Noon Sugar Mills case, which was repelled with the observations that sugarcane purchased for the purpose of extracting sugar was not for private use but for commercial activities and not entitled to exemption under section 4(2). For the foregoing reasons we are constrained to dismiss this petition. H.B.T./A‑169/K Petition dismissed.