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Petitioner: ADMINISTRATOR, MARKET COMMITTEE; KASUR and 3 others VS Respondent: MUHAMMAD JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Abdul Qadeer Chaudhry, Wali Muhammad Khan Title:ADMINISTRATOR, MARKET COMMITTEE; KASUR and 3 others vs MUHAMMAD
JUDGMENT
Reported As: 1994 SCMR 1048 Result: Appeals accepted Judgment JUDGMENT ' ABDUL QADEER CHAUDHRY, J.---These appeals by leave of the Court are directed against the common judgment of the Lahore High Court, Lahore, dated 30-5-1993. 2. The facts in brief are that Respondents Nos.1 to 14 (in CA. 427/93) were carrying on their business of purchase and sale of the agricultural produce in the Old Sabzi Mandi. The old market was located in a congested area, therefore, in order to shift the old market to a new place, the land measuring 47 Kanals was purchased in the year 1978. The procedural requirements under section 67 of the Punjab Agricultural Produce Market Ordinance (XXIII of 1978) hereinafter referred to Ordinance of 1978 were fully complied with. The plots were auctioned and necessary allotments were made to the allottees. Two markets known as Grain Market and Fruit and Vegetable Market were established over the said land. The Government of Punjab by Notification dated 17-4-1985 accorded sanction to the establishment of a new Market Committee. Most of the dealers and commission agents in Grain and Ghalla were shifted to the new market, in the year 1990, whereas the Fruit and Vegetable Market shifted to the new market in 1992. Muhammad Amin, the owner of old market, had taken over the possession of the land and thus the old market had been closed down. Respondents Nos.1 to 14 filed Writ Petition No, 10563 of 1992 before the Lahore High Court, Lahore, on the ground that they were entitled under the law to carry on their business in the old market. Initially an interim stay was granted, but subsequently the same was vacated. A civil petition for leave to appeal was filed in this Court against that order, which was dismissed. The learned High Court by the impugned judgment accepted the writ petition of respondents Nos. 1 to
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14 and held that they were entitled to transact their business in the old Fruit and Vegetable Market. According to the learned High Court, Rule 79 being prospective in operation, the establishment of the new market shall not affect the rights of the contesting respondents to carry on their business in the old market. The learned High Court rejected the claim of the respondents that Rule 79 of the Punjab Agricultural Produce Market (General) Rules, 1979, is void as against the Fundamental Right No, 18 of the Constitution of the Islamic Republic of Pakistan, 1973 and also against the basic provisions of Ordinance 1978. Respondents Nos.1 to 14 filed their cross-objections against the above findings of the High Court judgment. The objections raised are that:- (i) respondents Nos.1 to 14 are growers of agricultural produce and they are not required to have a licence from the Market Committee to sell their own agricultural produce; (ii) Rule 79 of the Agricultural Produce Markets (General) Rules, 1979 is repugnant to the First Proviso to subsection (3) of section 4 of the Ordinance, 1978; and also hit by F.R. 18; (iii) Rule 79 is also ultra vires of the Ordinance, 1978, there is no restriction against doing business in any part of the notified market area, as the entire city limit of Kasur is the notified market area; and (iv) the provisions of establishment of feeder markets under the said Rules of 1979 do not extend exclusively to a feeder market. The learned High Court rejected the objection of the respondents that they did not require licence for their business. 3. The learned counsel for the appellants has advanced the following arguments:-- (a) that after the establishment of a new market under Rule 67, the business of purchase and sale of agricultural produce can only be transacted in the premises of the said market. Rule 79 is applicable retrospectively; (b) The old market was situated in a congested area, therefore, in view of the compelling circumstances new market was established. The old market has since been closed and the possession of the land has been taken over by the owner; (c) The High Court has misapplied the facts in the impugned judgment. The respondents, being licensees of the Market Committee, have no vested.Right to do their business in the old market. 3-A. Before we deal with the respective contentions of the parties, it is necessary to refer to the various provisions of Ordinance, 1978 and the Rules framed in 1979. "Dealer" has been defined in section 2 (b) as under:-- "(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." Section 2 (g) deals with "grower" as under:-- (g) "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 Co-operative 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." ' According to section 2 (i):- "(i) "market" means a building, block of .Building, enclosure or other area which may be so notified in accordance with the rules framed under this Ordinance. ' Section 2 (k) refers to "notified market area" as under: "notified market area" means any area notified under section 4 of this Ordinance." The law authorises the Government to declare any area as notified area for the purpose of this Ordinance. Section 7 relates to the establishment of market committees for every notified market area. A Market Committee shall be constituted in accordance with the provisions of section 8. The duties of the market committee have been mentioned in section 9. By means of section 3 of the Ordinance the Government has been authorised to exercise control over purchase and sale of agricultural produce in specified area. Ordinance 1978 succeeded Agricultural Produce Markets Act,
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1939; through the Act has not been specifically repealed by this Ordinance, but this Ordinance being later on the subject shall govern the field. The purpose for promulgating this Ordinance is for the better regulation of purchase and sale of agricultural produce so that the growers may get maximum price of their goods. 4. We now propose to dispose of the legal objections raised by the learned counsel for the respondents. As regards the first objection that no licence is required by the respondents, it is suffice to say that this is a question of fact. Under proviso (i) a licence shall not be required by a grower who either himself or through a bona fide agent sells his own agricultural produce or the produce of his tenant. In the present proceedings the precise question for determination is whether the respondents can challenge the authority of the Government to establish a new market under the Ordinance or the respondents may use the old market for the purpose of purchase and sale of their goods. The learned counsel emphatically argued that the respondents cannot be denied their constitutional right to transact business in old market as it offends their vested Fundamental Right No, 18 incorporated in the Constitution. The respondents, according to their own statement, are doing business in the old market, and their main grievance is that they should not be compelled to do their business, in the new market. FA. No, 18 permits a citizen to conduct any lawful trade and business but the Government may regulate the trade by a licensing system. Licensing system is itself a restraint on the trade, but the Constitution empowers the Government to impose reasonable restrictions. Reasonable restrictions authorised by the Constitution do not negate the Constitutional rights of a citizen to do business unhindered without any condition. A reasonable classification is always considered to be within the framework of the fundamental right. Law may regulate the mode of carrying on business in a market place. There is no bar of exercise the lawful trade but the interest of residents of the city should be guarded as a public policy. A right to do business does not guarantee a trader an uncontrolled privilege. The law has been enacted for the benefit of growers who are engaged in the trade. It is a beneficial legislation. To establish a market it is necessary to regulate the business in orderly fashion. A market may be established at a suitable place law regulating the trade and making prohibitions of doing business outside the market area does not offend the constitutional guarantee of freedom of trade. The right to do business in old market is not absolute. It is not the privilege of the respondents to do business in old market. 5. In East and West Steamship Co. v. Pakistan (PLD 1958 SC (Pak.) 41) it has been observed:- "The right given by Article 12 has to be read subject to clause (a) of the proviso which expressly states that a trade may be regulated by a licensing system, and if the effect of a licensing system by prohibition then it follows that prohibition of a trade by a licensing system was contemplated by the framers of the Constitution." ' It has been further held that: "The power to regulate implies a power to foster, protect, control and restrain." ' Again it has been observed as under:- "A 'reasonable restriction' in the sense of Article II is one which is imposed with due regard to the public requirement which it is designed to meet. Anything which is arbitrary or excessive will of course be outside the bounds of reasons in the relevant regard, but in considering the disadvantage imposed upon the subject in relation to the advantage which the public derives, it is necessary that the Court should have a clear appreciation of the public need which is to be met and where the statute prescribes a restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the sense of not bearing excessively on the subject and at the same time being the minimum that is required to preserve the public interest." ' In Leo Nebbia v. People of the State of New York (502) (291 U.S.) the Supreme Court of the United States held:-
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"13. Where a law is not arbitrary or discriminatory, the Courts cannot deal with the wisdom of the legislative policy or with the adequacy or practicability of the law enacted to forward it. 14. The Constitution does not secure the liberty to conduct a business so as to injure the public-at- large or any substantial group." 6. The learned counsel for the respondents has referred to:- (1) Khurai Municipality v. Firm Kaluram Hiralal (AIR 1944 Nagpur 73). (2) M.H. Qureshi v. State of Bihar (AIR 1958 SC 731). (3) Abdul Hakim v. State of Bihar (AIR 1961 SC 448). (4) Jan Mohd. v. State of Gujarat (AIR 1966 SC 385). (5) Delhi Transport Corpn. v. D.T.C. Mazdoor Congress (AIR 1991 SC 101). (6) Pakistan Tobacco Co. Ltd v. Employees' Union (PLD 1961 SC 403). (7) Nabi Ahmad v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599). (8) Noon Sugar Mills Ltd. v. Market Committee (PLD 1989 SC 449). (9) Shaukat Ali v. District Magistrate, Gujranwala (1987 CLC 1608). ' He has specifically referred to para. 29 of Nabi Ahmad's case, wherein vested right has been described. In Abdul Hakim Quraishi's case it has been observed that:- "The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Act 19 (1) (g) and the social control permitted by clause (6) of Article 19, it may be held to be wanting in that quality." ' It may be noted that three different enactments made by States of Bihar, Uttar Pradesh and Madhya Pradesh were challenged, whereby a restriction was imposed for the slaughter of animals less than the prescribed age. After referring to the merits of the case it had been observed that unreasonable restriction on the fundamental right of the butchers to carry on their trade and profession was imposed. It cannot be said to the interest of the general public. In Muhammad Hanif Qureshi's case it has been observed:- "the challenge under Article 14 could not prevail inasmuch as the Acts had adopted a classification on sound and intelligible basis." ' It has been further observed that the prohibition slaughter of cows of all ages and calves of cows and calves of buffaloes, male and female, were constitutionally valid, and in so far as they totally prohibited the slaughter of she-buffaloes, breeding bulls and working bullocks, without prescribing any test or requirement as to their age or usefulness they offended against Article 19 (1) (g). This case was also cited in Abdul Hakim Qureshi's case. ' In Pakistan Tobacco Co's case it has been observed that:- "It is a cardinal rule of interpretation that when the language used by the Legislature admits of two constructions the Court should not adopt a construction which would lead to an absurdity or obvious injustice but should adopt that construction which appears to be most in accord with reason and justice." ' Shaukat Ali's case is distinguishable; as licence was granted to a stamp-vendor, who was directed not to work at any place in the District. In Khurai Municipality's case (AIR 1944 Nagpur 73) it has been observed as under:- "The power of regulation is not confined merely in the prevention of nuisance or the maintenance of order but extends to the imposition of restrictions on the trade itself provided they do not have the effect of preventing or prohibiting." ' Delhi Transport Corporation's case has no bearing on the facts of the present case. 7. We have, therefore, to examine whether the facts of the present case justify the restriction imposed by the Official respondents by creating a new market in place of old market. The
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precedents cited at the Bar clearly laid down the law that reasonable restriction can be imposed. In the present case the Municipal Committee passed a resolution that the market be shifted from the present place on account of traffic problem. The case of the appellants is that the old market was located in a congested area, and due to the huge sale purchase, at the said place, traffic problems were created by the trucks, trollies and carts etc., with the result that there were lot of complaints. Due to traffic hazards, the-Government and the law-enforcing agencies used to face lot of problems. Apart from this, the place where the old market was used to function was not sufficient to cater the growing needs of the dealers, commission agents etc. In view of all these administrative and practical difficulties, a proposal was made for shifting of old market to a new place. Even a writ petition was filed in the year 1990, by one Muhammad Siddique, praying therein that the Government and Market Committee be directed to prohibit business of fruit, vegetables or sale purchase in the old vegetable market. The new market was established after complying with the provisions of the Ordinance 1979 and the Rules framed thereunder. A Notification was issued under Rule 79 of Punjab Agricultural Produce (General) Rules, 1979, on 17-4-1985, which was published in the official Gazette on 21-4,1991. It has also been mentioned that the dealers, who have been dealing in the purchase of grain/Ghalla in the old Mandi shifted to new Mandi in the year 1990. On 10-3-1992, the fruit and vegetable was also permanently shifted to the new Mandi where the dealers and others started running of their business of sale and purchase of agricultural produce. Factually the appellants had disputed the claim of the respondents. 8. The learned counsel for the appellants has referred to the order dated 22-3-1993, of the learned Judge in Chamber, passed in the present proceedings wherein the statement of Muhammad Amin was recorded that the Old Sabzi Mandi has come to an end and all the vacant possession of the shops had been handed over to him. The report of Ch. Mohammad Latif, Advocate/Local Commissioner, dated 4-5-1992, also shows that Old Sabzi Mandi has come to an end and the same has been closed by pucca walls. Having noted these facts, the learned Judge refused to grant the interim stay and observed that no case has been made out by the petitioners on the facts and circumstances of the case, to allow them to carry on their business of sale and purchase of agricultural produce in Purani Sabzi Mandi, Kasur. 9. The learned counsel for the respondents has referred to the notification (Annex. V), which was issued under the Market Act of 1939, whereby the Old Kasur City was declared as notified market area. According to the learned counsel, there can be established more than one markets, therefore, the respondents can run their business in the old market. According to the record, the establishment of new market was necessary due to the fact that old market was located in the heart of the city. The learned counsel for the respondents stated that they have no objection for the establishment of new market, but as the old market was established, they have a legal right to do their business in the old market. It is not the case of either party, that as the old market is not sufficient to meet the requirements of the entire population, therefore, the additional market is necessary to cater the need of expanded city. The old market had to abandon on account of traffic and hygienic problems. It has not been established that there is any mala fide on the part of the Government in establishing a new market. In changing circumstances, the old market has become outdated and useless new market with modern facilities i,e. Storage etc., can be established. The existence of old market in the heart of the city creates many problems. The movement and parking of vehicles, carts and cattle, becomes difficult. If the old market is allowed to function, it will cause injury and inconvenience to the general public. 10. There is also no force in the contention that Rule 79 is repugnant to subsection (3) of section 4 of the Ordinance or this rule is ultra vires of Ordinance, 1978. The Government of Punjab by Notification No, SOA (S&M) X-52/72 dated December 1978 permitted the establishment of new market. The notification reads as under:-
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"2. In pursuance of Rule 63 of A.P.M. Rules, 1940 the Government of the Punjab are pleased to accord sanction to the establishment of feeder market on the land owned by Lt.-Col (Rtd.) Muhammad Islam of Kasur by the Market Committee, Kasur." ' Rule 79 which has been assailed by the respondents reads as under:- "Where a regular market has been established by the market committee with the approval of the Government, all transactions (sale and purchase) of agricultural produce shall be conducted within the market premises and not outside the same." Subsection (3) of section 4 of the Ordinance reads as under:- "(3) After the date of issue of such notification and on the establishment of market committee under section 7, no local authority, notwithstanding anything contained in any other law entitling such local authority to establish a market, and no person for himself or on behalf of another person unless exempted by rules framed under this Ordinance, shall, within the notified market area, set up, establish or use any place for the purchase or sale of the agricultural produce or purchase, sell, store or process such agricultural produce except under and in accordance with the terms and conditions of a licence granted under the provisions of this Ordinance: ' Provided that a licence shall not be required by a grower who either himself or through a bona fide agent sells his own agricultural produce or the produce of his tenant or by a person who purchases any agricultural produce for his private or domestic use: ' Provided further that in the case of a market committee established for the first time under this Ordinance no person shall be deemed to have violated this provision if he has made an application to the market committee for grant of a licence." The rule has been framed to achieve the object of the Ordinance. Section 4 (3) clearly maintains that on the establishment of market committee under section 7, no local authority or person shall within the notified market area establish any other market. The provision rather supports the contention of the appellants that after the establishment of a new market no one is permitted to establish any other place of business. In fact Rule 79 is in consonance with the provision of the Ordinance. The High Court has rightly held that this rule is in the nature of regulatory provision. The object of this Ordinance would be frustrated if everybody is allowed to do business outside the limits of the Market, in terms of the provisions, anywhere in the city. As regards the observations made in Khurai Municipality's case (AIR 1944 Nagpur 73) that "A bye-law must not be in excess of the statutory power authorising it; it must be repugnant to that statute or to the general principles of law and it should not be unreasonable." It has been further observed "A bye-law cannot be denounced as being repugnant to general law simply because of two lawful courses, it adopts one and rejects the other, and on that which it adopts it imposes special conditions or limitations or even penalties." Testing Rule 79 on the touchstone of this case, we do not consider that it is repugnant to the Statute. In Jan Muhammad's case (AIR 1966 SC 385) it has been observed:- `Section 5 of the Gujarat Act authorises the Director to declare his intention to regulate purchase and sale of agricultural produce in a specified area after inviting objections or suggestions from the local authorities functioning in the area, and from other persons. Then he has to consider the objections and suggestions received within the period specified in the notification and then he is authorised to declare the area or part thereof a market area for the purposes of the Act in respect of all or any of kinds of produce specified in the notification. The object of the Act is to ameliorate the condition of agriculturists and to do away with the middlemen. Therefore, the declaration of intention to regulate trade in agricultural produce in a specified area, after hearing the objections and suggestions of interested parties, cannot be regarded as imposing unreasonable restrictions on the right to carry on trade." The establishment of feeder market is to be made in accordance with Rule 67. The market committee shall exercise such control over the market, sale and purchase of agricultural produce,
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and shall provide latrines, drinking water for men and animals coming to the market. It shall keep the property vested in it in a sanitary condition. According to Rule 23 (3) a market committee may, and, if so required by the Government, shall make a general order providing for regulation of ingress and egress of traffic in the market and specifying places where vehicles shall be unloaded and parked and where animals shall be unloaded and tethered. It has been observed in American Jurisprudence 2d, 52, page 827:- 3. Generally. "It is settled that states and municipal sub-divisions thereof upon which the State has conferred the necessary power may establish and regulate markets. Authority to do so falls within the police power of the State, and the existence of such power is essential for the effective supervision and control of the food supply in the interest of health and public welfare. If a market authority act providing for the establishment of markets is constitutional, the Courts may not usurp the province of the legislature by deciding that some other method of dealing with the situation would be better." ' About the location of the market it has been stated:- 5. Location "Except as restricted by statute, and subject to the limitation that it may not be so located as to constitute a nuisance, the right to establish a market includes the right to fix its location, and to shift that location from place to place, when the convenience or necessities of the people require it." 11. The learned counsel for the respondents has submitted that a vested right had accrued to them to continue their business in the old market. He has referred to the following observations recorded in para 29 of Nabi Ahmed v. Home Secretary, Government of West Pakistan (PLD 1969 SC 599, at p.616):-- "29. What is a vested right? According to the Oxford English Dictionary, `vested' means 'clothed, robed, dressed especially in…
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