Full Judgment Text & Judicial Ruling

2016 C L C Note 7 [Sindh (Hyderabad Bench)] Before Salahuddin Panhwar, J MARKET COMMITTEE, TANDO MUHAMMAD KHAN through Secretary----Applicant Versus Messrs FARAN SUGAR MILLS LTD. and 3 others----Respondents Revision Application No.46 of 2011, decided on 4th December, 2014. (a) Jurisdiction--- ---- Civil jurisdiction and Constitutional jurisdiction ---Distinction---Jurisdiction of civil court cannot be equated with that of Constitutional court---Much difference exists between jurisdiction and authority of Civil Court and that of Constitutional Court ---Civil court is competent to determine rights, liabilities and status of person or a document but is not supposed to determine status of a legislation---Civil court may go to the extent of interpretation of law, which too, within prescribed parameters but cannot go beyond that--- Constitutional Court is competent to declare legality of legislation by examining the same on touchstone, so permitted and prescribed by Constitution itself for such purpose. (b) Pleadings--- ----Party is bound by its pleadings and admissions made therein. (c) Interpretation of statutes--- ----Directory or discretionary nature of a statute---Determination---While examining nature of a provision to be directory or mandatory intention of legislature is to be seen which can only be examined from the words used in the provision--- Provisions following section to be interpreted are to be examined because if failure of a requirement is declared in later provisions to be of penal consequences which makes compliance as mandatory requirement .

(d) Agriculture Produce Markets Act (V of 1939)--- ----S. 31---Constitution of Pakistan, Art. 189---Decision of Supreme Court---Applicability---Plaintiff company assailed demand of market committee fees raised by authorities in view of judgment passed by Supreme Court---Trial Court dismissed the suit but Lower Appellate Court decreed the same in favour of plaintiff company---Validity---Demand of market fee was with specific reference to judgment of Supreme Court---Plaintiff was not legally permitted to file a lis before Civil Court seeking relief of declaration which directly or indirectly stood in conflict with principle enunciated by Supreme Court nor the Civil Court was ever competent to entertain a suit containing one of such relief---Plaintiff could not avail exception from paying market committee fees under decree of Lower Appellate Court---Even a decree of court would not operate over and above the decision or principle enunciated by Supreme Court nor would create legal justification in decree holder in avoiding legal obligation/duty, which Supreme Court otherwise held to be legal and valid---High Court set aside judgment and decree passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed in circumstances. PLD 1989 SC 449; PLD 1983 Kar. 1; 1993 SCMR 920; PLD 1995 SC 314; 1997 SCMR 1228 and PLD 1978 SC 190 ref. 1988 SCMR 155; 1999 SCMR 1402; 1993 SCMR 920; 2003 SCMR 162 and PLD 2004 SC 261 rel. Ansari Abdul Latif for Applicant. Imdad Ali Unner for Respondent No.1. Ashfaque Nabi Qazi, Assistant A.-G. for Respondents Nos.2 to 4. Date of hearing: 18th November, 2014.

JUDGMENT SALAHUDDIN PANHWAR, J.---Through this Civil Revision petition the appellant, has assailed the legality of the impugned judgment and decree dated 05th November 2010 and 10th November 2010 passed by learned Vth Additional District Judge, Hyderabad in C.A. No.27 of 2010 "Re-M/s Faran Sugar Mills Ltd. v. Province of Sindh and others" whereby appeal of the appellant was allowed and in consequent whereof the judgment and decree of the learned trial Court dated 16.12.2009 passed in FC Suit No.7/1996 were set aside and the suit of the respondent No.1/plaintiff was decreed with no order as to costs. 2. Succinctly, but relevant facts are that the respondent/plaintiff filed FC Suit No.07/1996 for Declaration and Injunction wherein pleading that the Mill is Sugar Factory incorporated under the Companies Ordinance, 1984 situated in UC Shaikh Bhirkio Taluka Tando Muhammad Khan. Respondent No.2/defendant is the legislative authority while the respondent No.3 is provincial head and controls the working of applicant/defendant No.4 under the provisions of Sindh Agriculture Produce Market Act, 1939, Rules 1940 whereas respondent/defendant No.3 is a Taluka Mukhtiarkar and working under the provisions of Sindh Land Revenue Act, 1967 and applicant/defendant No.4 is a statutory body established and functioning under the Agriculture Produce Market Act, 1939, Rules 1940. It is further contended that in 1996 Government of Sindh issued notification under section 4 of the Agriculture Produce Markets Act, 1939 declaring Taluka Tando Muhammad Khan as Market area and constituted Market Committee and respondent No.1/plaintiff Mill was in the limits of Taluka Matli and the area of Market Committee Tando Muhammad Khan was notified under the notification dated 15.8.1996 the area of plaintiff/respondent No.1 Mill was not part of the Market Committee Tando Muhammad Khan and for the first time the area of respondent No.1/plaintiff Mill was included in Taluka Tando Muhammad Khan in the year 1975, therefore, fresh notification of Government of Sindh for the purpose of inclusion of Union Council Shaikh Bhirkio and UC Tando Saindad within the limits of Market Committee Tando Muhammad Khan was needed and without issuance of fresh notification the area separated from Taluka Matli cannot be carved as part of Market Committee Tando Muhammad Khan therefore, applicant/defendant No.4 is not entitled to impose levy and recover the market fee under section 6 of Agriculture Produce Market Act. It is further case of respondent No.1/plaintiff that applicant/defendant No.1 has to establish market area and provide service to the growers. According to respondent No.1/plaintiff neither the services are provided nor any amount is spent by applicant/defendant No.4 thus, is not entitled to levy any fee. No change has taken place even after decision of Supreme Court of Pakistan in a case reported in 1988 SCMR 155 and law laid down in said authority still holds the field. The applicant/defendant No.4 is statutory body as such is a juristic person and are subject to law of limitation and can recover any amount of dues including arrears as determined by the court of law through a civil suit and any efforts to recover self assessed arrears under the provisions of Land Revenue Act 1967 by getting notice issued by the respondent/defendant No.3 is incompetent and is in conflict with the provisions of section 31 of the Agriculture Produce Market Act 1939. The Market Committee Tando Muhammad Khan has not maintained the record of sugar cane produced by respondent No.1/plaintiff Mill from the area of Market Committee Tando Muhammad Khan and market fee is not leviable on sugarcane crushed but is leviable on sugarcane purchased in the Market Committee limits, as such any demand of market fee is based on an ad hoc and presumptive figures, which cannot be made the basis of assessment of market fee and the provisions of Land Revenue Act cannot be legally enforced to recover any amount of Market Committee without first settling and determining the dues from the competent court of law. According to plaintiff/respondent No.1 they are not liable to obtain license to run a sugar factory as sugar factory is sanctioned and established under the authority of Federal government as such provision of law will not affect the functioning of the respondent No.1/plaintiff Mill. Notice issued by applicant/defendant No.4 dated 17.11.1996 demanding market fee from the plaintiff is illegal, incompetent and based on misconception of legal provisions of Agriculture Produce Markets Act, 1939 hence same is illegal, without jurisdiction, in excess of powers, incompetent, bad in law and against the principle of natural justice. 3. In such back-ground the plaintiff/respondent No.1 filed the suit for following relief(s):- a) Declare that the area of plaintiff legally has not been included in the area of Market Committee Tando Muhammad Khan for all purposes including the levying and recovering Market Fee from the plaintiff under the provisions of Agricultural Produce Markets Act; b) Declare that the demand of Market Fee without levying it in exercise of its power under section 19 of Agriculture Produce Markets Act, 1939 is illegal, incompetent, in excess of its powers, bad in law, against the principles of natural justice and without lawful authority; c) Declare that the plaintiff is the Purveyor of parched food and entitled to claim exemption from taking license and paying any fee to the Market Committee; d) Declare that the notices issued by the defendants Nos.3 and 4 are illegal, incompetent, bad in law, in excess of their powers and without lawful authority; e) Grant perpetual injunction against the defendants Nos.3 and 4 restraining them from demanding any fee from the plaintiff otherwise then due course of law, and to pass any other orders as deemed fit and proper in the circumstances of the case; 4. After service, the applicant/defendant No.4 contested the suit; filed written statement wherein denying assertions of plaint. According to applicant/defendant No.4, it was legally entitled to recover the Market Fee on sugarcane as provided under the Agriculture Produce Markets Act, 1939 and Rules, 1940. Since 1983, a huge amount of Rs.277,94,374.64/0 is due against the plaintiff. That suit was not maintainable under sections 42 and 56 of Specific Relief Act as recovery of fee/tax cannot be stopped. Respondent No.1/plaintiff also filed C.P. No.421/1991 wherein matter in issue was directly pending determination. 5. Out of pleadings of the parties, the following Issues were framed:- 1) Whether notification dated 15.8.1966 is still in force and Market area of Shaikh Bhirkio and Union Council Tando Saindad are not included in the limits of Market Committee Tando Muhammad Khan? 2) Whether after inclusion of Market area of Shaikh Bhirkio and Tando Saindad in 1975 any notification was issued by the defendants. If not its effect? 3) Whether defendant No.4 is entitled to charge license fee from plaintiff? 4) Whether the sugar mill comes within the definition of purveyor of parched foods and is exempted from license fee under Rule 7(a) of Agriculture Produce Market Rules, 1940? 5) Whether defendant No.4 has levied fee under section 19 of the Agriculture Produce Act, after keeping in view the expenditure incurred by him on the service? 6) Whether any services are provided by the defendant No.4 to growers of Sugarcane? 7) Whether the defendant No.4 is authorized to recover the amount of arrears of fee under the provisions of Land Revenue Act? 8) Whether defendants Nos.3 and 4 are legally competent to issue notice to plaintiff for recovery of license fee? 9) Whether the suit is not maintainable in present form? 10) Whether the suit is barred under sections 42 and 56 of Specific Relief Act? 11) Whether the plaintiff is estopped to file this suit in view of decision in Constitution Petition No.42/1990 (M/s Faran Sugar Mill Limited v. Mukhtiarkar Tando Muhammad Khan and others)? 12) Whether the plaintiff is entitled for the relief asked for? 13) What should the decree be? 6. In order to prove above issues, the plaintiff/respondent No.1 examined one Syed Mansoor Alam at Ex.63 and closed its side while in rebuttal one Shoukat Ali Mastoi was examined from side of the defendants at Ex.75 and side was closed. 7. The suit of the plaintiff/respondent No.1 was dismissed vide judgment dated 22.11.2003 but in Civil Appeal No.368/2003, the learned Additional District Judge, Tando Muhammad Khan vide judgment dated 31.3.2008 allowed appeal with direction to frame two additional Issues i.e.:-- 1. Whether the area of Shaikh Bhirkio has been included within the limits of Market area of Market Committee, Tando Muhammad Khan in accordance of sections 3 and 4 of Agriculture Produce Markets Act, 1939? 2. Whether the Notification issued by the Director General Bureau of Supply in Prices, Government of Sindh dated 6th December, 1983 and 12th March 1984 can be 'termed' as notification in accordance with sections 3 and 4 of Agriculture Produce Markets Act, 1939? 8. On remand of the suit, the above two issues were included/added; thereafter, respondent No.1/plaintiff Muhammad Haroon Memon, Assistant General Manager was examined and side was closed. On the other hand, defendant No.4/applicant examined Muhammad Tufail, Secretary Market Committee, Tando Muhammad and side was closed. 9. The learned trial Court, having heard parties, dismissed the suit of the plaintiff/respondent No.1; which was assailed through Civil Appeal No.27/2010. The learned appellate Court, having heard respective sides, allowed the appeal of the respondent No.1/plaintiff vide judgment and decree, impugned. 10. Learned counsel for the applicant/defendant No.1, inter alia, contended that impugned judgment is against the settled principles of law; issue of levy was already adjudicated in Mirpurkhas Sugar Mills case by the apex Court, hence plaintiff/respondent is bound to clear all outstanding of appellant. In support of his contention, he has relied upon 1999 SCMR 1402, PLD 1989 SC 449, 1993 SCMR 920, PLD 1989 Supreme Court 449, PLD 1983 Karachi 1, 2003 SCMR 162 and 1993 SCMR 920. 11. On other hand, learned counsel for the respondent No.1/plaintiff argued that in 2nd appeal jurisdiction of this Court is very limited; learned appellate Court has rightly recorded finding in favour of respondents; appellants have no jurisdiction to recover the levy. In support of his contentions, he has relied upon PLD 1995 SC 314, 1997 SCMR 1228 and PLD 1978 SC 190. 12. The perusal of the impugned judgment shows that the lis was, in fact, revolving round the legal questions rather than the factual controversies, therefore, before going into merits of the case, I feel it quite necessary to endorse here that jurisdiction of the Civil Court(s) can never be equated with that of a 'Constitutional Court'. There is much difference between the jurisdiction and authority of a 'Civil Court' and that of a 'Constitutional Court . The Civil Court is competent to determine the rights, liabilities and status of person or a document but is not supposed to determine the status of a legislation. The Civil Court may go to extent of interpretation of law, which too, within prescribed parameter, but can't go beyond that. However, the 'Constitutional Court(s) would be competent to declare the legality of the legislation by examining the same onto touch stone, so permitted and prescribed by the Constitution itself for such purpose. 13. Having said so, I would also refer to the Article 189 of the constitution, being relevant for disposal of the instant matter, which reads as:- Article 189. Decisions of Supreme Court binding on other Courts. Any decision of the Supreme Court shall, to the extent that it decides a question of law, or is based upon, or enunciates a principle of law, be binding on all other Courts in Pakistan. The above Article leaves nothing to question that once 'a question of law' is decided by the Honourable Supreme Court the other Courts (subordinate Courts, including High Court) shall not be justified in giving a close eye to such 'decided question of law'. Similarly a 'principle', once enunciated by Honourable Supreme Court, shall be constitutionally binding on all other courts. 14. The perusal of the judgment(s) and Decree(s), of both the Court(s) below, what I find is that the issue was revolving round the follow Issues:- i) the competency of the 'Market Committee to claim levy from a Sugar Mill (plaintiff/respondent No.1) or otherwise; ii) whether on plea of 'providing no facility' the Mill (plaintiff/respondent No.1) can claim exemption from making payment of levy to Market Committee or otherwise? iii) whether area where the respondent No.1/plaintiff's Mill is situated falls within jurisdiction of applicant/defendant No.1 or Taluka Matli? 15. I am quite surprised that while dealing with the matter, in hand, the learned appellate Court, did not appreciate the principle, so enunciated by the Honourable Supreme Court, in the case reported as 2003 SCMR 162 (Pakistan Fiber Mills Association and others) wherein it was held that:-- It may be observed that the liability with regard to the payment of market fees under section 19 of the said Act, 1939 was challenged before this Court in (i) Noon Sugar Mills Ltd. v. Market Committee and others (PLD 1989 SC 449) and (ii) M/s. Mirpurkhas Sugar Mills Limited v. Government of Sindh through Chief Secretary, Sindh and others (1993 SCMR 920) wherein demand of market committee fees by the respondents was held to be legal and valid. In the same judgment, honourable Supreme Court while responding to the legality of objection towards payment of market committee fees on agriculture produce on ground of non-rendering of service held that: With regard as to whether the petitioners could object to the payment of market committee fees on agricultural produce only on the ground that the respondents were not rendering service to them, record would show that the petitioners since 1991 have not made payment of said fees to the respondents and the facilities to be provided under the said Act and the Rules would also depend upon its sources of the funds so made available by the dealers but in case dealers refused to pay said fees, the respondents in absence of needed funds would find themselves in difficulty to provide the services to the Petitioners. However, the learned counsel for the respondents made a statement at the bar that they would provide all kinds of facilities as provided under the said Act and the Rules to the petitioners on the payment of fees by them and in facilities/services available in the notified market areas wherever the Market Committees have been established. Even if it be assumed that quantum of services were not proportional to the rate of charging fees the fact remained to be seen, whether the petitioners have approached the Court with clean hands in rising the said plea of not rendering services proportionate to the rate of fee, the answer would be in the negative as the petitioners since beginning have been avoiding payment of legitimate claim in respect of fees to the respondents on one pretext or the other. Besides it may be observed that all the said pleas and objections which have been raised by the petitioners in these petitions were already considered by this Court in (i) Noon Sugar Mills Ltd. v. Market Committee and others (PLD 1989 SC 449) and (ii) M/s. Mirpurkhas Sugar Mills Limited v. Government of Sindh through Chief Secretary, Sindh and others (1993 SCMR 920), which pleas were held to be without substance and merit. We would like to observe that the petitioners having not approached the Court with clean hands by not making payment of said fee which was held to be within the valid and lawful authority of the Province by this Court in the above - cited cases cannot be permitted to raise said plea that respondents are not rendering service under the said law and rules, therefore, not liable to pay the said fees. In the circumstances it is held that the petitioners could only raise the plea that services are not being rendered by the respondents to them when former performed their obligations with regard to payment of required fee. (underlining has been supplied for emphasis) The above principle, so enunciated by the Honourable Supreme Court, makes it binding upon all the Court(s) that as and when any such position/fact is pending for adjudication before any other court, which, already 'enunciated' by Honourable Supreme Court then such Court could not escape the binding effect of enunciated principle except by establishing that facts, speak otherwise. 16. In the instant matter a visit to the evidence of the PW, so examined by the plaintiff/respondent No.1 would make the position clear to the effect of plaintiff/respondent No.1 attitude in discharging its liabilities. The operative and relevant portion of cross-examination are as follows:- It is correct to suggest that we have not deposited Market fee either with Market Committee Tando Muhammad Khan or with Market Committee Tando Ghulam Ali after establishing of the Mill" Thus, germane to mention there that the points (i) and (ii) as proposed were already enunciated by the Honourable Supreme Court, thus there was no option for the Court(s) below to disagree with the same as both the Court(s) below were/are constitutionally obliged to agree with such enunciated principle(s). The legality of the above points (i) and (ii), even, have binding effect upon this Court, therefore, I, under the Constitutional obligation of Article 189, do not feel myself permitted to dive deep as even a deep dive shall not lift the constitutionally created obligation . 17. Now, I shall revert to the point which has been crucial one and was pressed hard by the plaintiff/respondent No.1 to avoid its legal obligation' to pay the 'fees' to market Committee'. To properly appreciate this issue, it would be proper to see what the plaintiff/respondent itself says. For this the relevant paras of the pleading (plaint), being material are reproduced hereunder:- "1. That the plaintiff is running a Sugar Mills as M/s. Faran Sugar Mills Ltd. Incorporated under the Company Act and is situated in Union Council Shaikh Bhirkio, Taluka Tando Mohammad Khan, within the jurisdiction of this Honourable Court. '3. That the Government of Sindh had issued the Notification declaring Taluka Tando Mohammad Khan, as in 1966, as the Market area and has constituted Market Committee as required under section 4 of the Act within its office at Tando Muhammad Khan' From the above two paras of the plaint of the respondent No.1/plaintiff it becomes no more ambiguous that the respondent No.1/plaintiff admitted that:- i) Mill is situated within Taluka Tando Muhammad Khan; ii) Declaration of Taluka Tando Muhammad Khan as notified market area, as required under section 4 of Act; Admitting the above facts, the respondent No.1/plaintiff, however, claimed exception while asserting in para-4 of its pleading that:- "4. That during the year 1966, the plaintiff was in the limits of Taluka Matli, when the area of Market Committee Tando Mohammad Khan was notified under Notification dated 15.8.1966 and the area of plaintiff was not a part of Market Committee Tando Muhammad Khan and for the first time, the area of plaintiff was included in Taluka Tando Muhammad Khan in the year 1975 and as such it needed a fresh Notification of the government for the purpose of including Union Council Shaikh Bhirkio and Union Council Tando Saindad in the limits of Market Committee Tando Mohammad Khan and that without such Notification the area broken from Taluka Matli cannot form part of Market Committee Tando Muhammad Khan and therefore, the Market Committee Tando Muhammad Khan is not entitled to levy and recover Market Fee from the plaintiff, without notification including the area of plaintiff in the Market area and issuing a fresh Notification for the levy of Market Fee' The reading of the above para would show that the respondent No.1/plaintiff sought exception only with reference to 'falling of Union council', however, (per para-3) did not deny the legal constitution of Market Committee' Tando Muhammad Khan per Notification of year 1966. Let's see what the Notification of year 1966 says about 'jurisdiction' Market Committee Tando Muhammad Khan.

Name of Market Committee

Extent of area

Name of the Agricultural produce items.

Tando Mohd. Khan

Entire Taluka Tando Mohd. Khan

. . . .

To define the extent of area' the term 'Entire Taluka Tando Mohammad Khan' was used. No where the 'union council(s) were mentioned/specified to describe the extent of the Market Committee but the specific term 'Taluka' was used. Thus, constitution of Union council(s), making a Taluka (Tando Muhammad Khan) were/are meant but without any specific Union council(s) but all those Union council(s) which were declared to be part of Taluka Tando Muhammad Khan at the time of issuance of such Notification. 18. Here, it is worth to add that the PW, examined by the respondent No.1/ plaintiff, also stick with said plea without questioning the legality and validity of admissions, made in paras-1 and 3 of the plaint, as is evident from relevant portion of examination which is:- 'Faran Sugar Mill is ....... And situated in Union Counsel (Council) Shaikh Bhirkio was not included within the jurisdiction of Market Committee Tando Mohammad Khan. In the year of 1966 Union Council Shaikh Bhirkio was not included within the jurisdiction of Market Committee Tando Mohammad Khan. In the year 1966 Union Council Shaikh Bhirkio was within the jurisdiction of Market Committee of…

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