PROVINCE OF SINDH through Advocate-General High Court of Sindh, Karachi vs MUHAMMAD ISSA and others
This matter arises from civil petitions directed against a common judgment of the High Court of Sindh, which held that no Dalali or Nangani fee could be recovered in respect of agricultural produce subject to the levy of market fee under the Agricultural Produce Market Act, 1939. Before the Supreme Court, the Additional Advocate-General contended that the notification in question had already been subjected to a prior round of litigation up to the High Court and thus could not be re-challenged, and further argued that the High Court failed to consider rule 19(1) framed under section 40 of the Sindh Local Government Ordinance, 1979. Conversely, counsel for the respondents raised distinct factual and statutory contentions regarding the applicability of a subsequent government notification. The core legal questions concern the maintainability of successive challenges to the same notification and the statutory competence to levy brokerage or commission fees on agricultural produce in light of local government rules. Granting leave to appeal, the Supreme Court held that the pleas raised merit detailed examination.
- Whether a notification previously challenged through a civil suit, appeal, and revision can be re-challenged through constitutional petitions?
- Can Dalali or Nangani fee be recovered in respect of agricultural produce subject to market fee under the Agricultural Produce Market Act, 1939?
- Whether rule 19(1) framed under section 40 of the Sindh Local Government Ordinance, 1979 authorizes the levy of fees on brokers and commission agents in public markets?
- Section 40, Sindh Local Government Ordinance 1979
ORDER
NAZIM HUSSAIN SIDDIQUI, J.--This order will govern the Civil Petitions Nos.3-K and 71-K of 2001. Both the petitions were disposed of by a common judgment by High Court of Sindh. It was held that no Dalali/Nangani Fee could be recovered in respect of agriculture produce, which is subject to levy of Market Fee under the Agricultural Produce Market Act, 1939.
2. Learned Additional A.-G. Contends that Notification No,88-D/66, dated 10-8-1966 issued by Commissioner's Office, Khaipur Division was earlier challenged in Civil Suit No,32 of 1979 before learned Civil Judge, Pannu Aaqil, in Civil Appeal No,14 of 1980 before learned 3rd Additional District Judge, Sukkar, and in Civil Revision No,23 of 1981 before High Court of Sindh, Sukkar Bench, as such, the same could not be challenged again through petitions before High Court. Learned Additional A.-G.Also argued that rule 19(1) framed under section 40 of the Sindh Local Government Ordinance, 1979, Schedule II, Part II, was not taken into consideration by High Court, when the impugned judgment was delivered. Said rule is as follows:-- "19. (1) A corporation, municipal committee or town committee may establish and maintain public markets of any article of food and drink and provide places for use as public markets for the sale of articles of food and drink and of animals and secure the proper management and sanitation of such markets.
(2) The council concerned may, in respect of a public market, provide by bye-laws:---
(a) the fees to be charged for the use or for the right to expose food for sale in the market;
(b) the fees to be levied on vehicles and animals bringing goods therein for sale; the fees to be charged for the use of shops, stalls pens or stamps;
(c) the fees to be charged in respect of animals brought for sale or sold: and
(d) the fees to be charged in respect of animals brought for sale or sold; and
(e) the fees to be charged from brokers, commission agents, weighmen, and other person practising their calling therein."
3. Mr. R.A. Qureshi, learned counsel for the respondents contends that the case of respondent in Petition No,71-K of 2001 is different from that of Petition No,3-K of 2001 and that impact of Notification No,S0- 11(34)191, dated 26-7-1991 issued by the Government of Sindh, Housing Town Planning Local Government and Rural Development Department was not examined by High Court with reference to the case of the respondent of said petition.-
4. Leave to appeal is granted to examine above pleas.