MARKET COMMITTEE, TANDO MUHAMMAD KHAN Versus FARAN SUGAR MILLS LTD.
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 Tando Ghulam Ali Taluka Matli....... Union Council Shaikh Bhirkio is now within Taluka Tando Mohammad Khan for the purpose of administration under revenue law '.
19. Since, admittedly the Mill of the respondent No.1/plaintiff falls within Taluka Tando Muhammad Khan' hence the respondent No.1/plaintiff was/is required to go accordingly and plea, based with reference to 'Union Council' was of no help for the respondent No.1/plaintiff particularly when the respondent No.1/plaintiff in his pleading and even in evidence did not deny the legality of the Notification of constitution of Market Committee, Tando Muhammad Khan, so issued in the year 1966. It is also a matter of record that the respondent No.1/plaintiff, in its pleading or during course of evidence, did not object the legality of the Notification of year 1966 rather escape was attempted with reference to 'revenue limitation' as was existing at the time when Notification of year 1966 was issued. This aspect was not appreciated by the learned appellate Court while deciding the appeal.
20. Let me add here that a party is not permissible to raise entirely a new plea at appellate stage which was not raised in the pleading or during trial. It is a matter of record that the respondent No.1/plaintiff, at trial stage, remained sticking with Notification of year 1966 whereby constitution of Market committee, Tando Muhammad Khan was formed but at appellate stage took sommersault and came forward with a plea that Notification of year 1966 was, in fact, under section 3 of the Act and there had not been any Notification, as required under section 4 of the Act although in para 3 of the plaint, the constitution of Market Committee, was admitted by respondent No.1/plaintiff to be in accordance with section 4 of the Act.
21. Without prejudice to the legally established principle of law that a party is always bound by its pleading and admission(s) made therein , I would like to examine the legality of such plea of the respondent No.1/plaintiff. The examination, however, shall always be subject to already enunciated principles by Honourable Supreme Court of Pakistan which are: the demand of market committee fees from a Sugar Mill is legal and valid
I am in agreement that no Notification under section 4 of the Act has been brought on record by the applicant/defendant No.4. At this juncture, a reference to section 4 of the Act would be relevant which is as:--
4. Declaration of Notified area.---(1) After the expiry of the period specified in the notification under section 3 and after considering such objections and suggestion as may be received before the expiry of the specified period, the Government may , by notification and in any other manner that may, be prescribed declare the area notified under section 3 or any portion thereof to be a notified market area for the purpose of this Act in respect of the agriculture produce notified under section 3, or any part thereof.
The bare reading of the above provision shows that deliberately the word may has been used in place of the word 'shall'. Needless to add here that while examining the nature of a provision to be 'directory' or 'mandatory' the intention of the legislature is to be seen which could only be examined from the use of the words, used in the provision. I may add here that the provision(s) following the section to be interpreted are also to be examined because if the failure of a requirement is declared in later provisions to be of 'penal consequence' which makes the compliance as 'mandatory requirement'.
22. It is a matter of record that while forming the section 4 there has been used word 'may' which, itself, is sufficient to declare' the intention of the legislature. Even the later provisions do not speak about any penal consequence(s) hence the provision of section 4 of the Act cannot be said to be 'mandatory'.
23. In the case of Mirpurkhas Sugar Mills Ltd. v. Government of Sindh (1993 SCMR 920), the Honourable Supreme Court held with regard to status of the sections 3 and 4 of the Act as:‑
'...... Sections 3 and 4 of the said Act are procedural in nature and their 'main object is to declare intention of exercising control over purchase and sale of agricultural produce in the areas to be notified. '
Not only the section 3 but also the section 4 of the said Act were held as 'procedural in nature'. Further in the said judgment a defect in the notification under section 3 of the Act was not given much weight for the reason that:
"In this context use of word 'shall' is to be considered as directory and not mandatory for the reason that section 3 is procedural in nature and further no penalty is provided for its non- compliance . Non-mentioning of sugarcane as agricultural produce in the notice under section has not caused any prejudice to the appellant in any manner as he had knowledge that he had to obtain license for payment of market fee in respect of purchase of sugarcane from growers'
(underlining is supplied for emphasis)
Thus, it is evident that the learned appellate Court, though came across, with judgment(s) of Honourable Supreme Court, yet could not properly follow the same. The learned appellate Court also not appreciated the fact that 'decreeing' the suit of the respondent No.1/plaintiff was resulting, directly or indirectly, into providing an exception to the respondent No.1/plaintiff from making payment of Market committee fee(s), which, otherwise, was held by honourable Supreme Court to be valid and legal.
24. Be as it may, the plaintiff/respondent No.1 had sought the exception hence the burden was always upon it to have established that non-issuance of notification under section 4 of the Act had caused some prejudice to it (respondent No.1/plaintiff) or such procedural failure/omission on part of the quarter concern is so grave that it should result in an exception to the respondent No.1/plaintiff from a legal obligation to pay the fees to Market Committee. The record speaks for itself that the respondent No.1/plaintiff, does not deny the following facts:- i) its being situated in Taluka Tando Muhammad Khan; ii) its being working in Taluka Tando Muhammad Khan too; iii) purchase of sugarcane from Taluka Tando Muhammad Khan too; iv) it has not paid nor even paying any single penny to any Market Committee;
25. The plaintiff/respondent No.1, no where, took the plea of any prejudice, loss or damage because of demand of fee by applicant/respondent. The respondent No.1/plaintiff would have been well justified in objecting the notice of the applicant/defendant No.1 if it (respondent No.1/plaintiff) would have paid fees to Market Committee, Matli which is not the case of the respondent No.1/plaintiff. On the other hand, it is a matter of record that the respondent No.1/plaintiff challenged the notice of demand of market fee by applicant/defendant No.4 which, being the root, is necessary to be reproduced as:
"SUBJECT: DEMAND NOTICE/DIRECTIONS FOR PAYMENT OF MARKET FEES
Reference Your Letter No.AC/FSM/TMK/MC/1/96 dated the 9th Jan: 1996
I appreciate contentions of your letter that you have accepted the levy of Market Fees on Sugar-cane, Sugar and other its by products while you claim yourself exempted from payment of Market Fees under Rule-7 of Agriculture Produce Market Act 1939 and Rules-1940 on account of being manufactures.
The claim of exemption is based on misunderstanding of the provision of Rule-7 it may be noted that you are not the manufacture under Rule-7 but admitted purcher (purchaser) of sugar-cane, in fact you are purchasing sugar‑cane, taking its delivery in your Mill premises which falls within the notified Market area of Market Committee, Tando Muhammad Khan.
It is also for your best information that the highest judiciary of Pakistan i.e. the Hon'ble Supreme Court of Pakistan has finally declared that Market Fees is payable by the Sugar Mills, which are purchasing Sugar-cane and other Agriculture produce for cursing are (or) other purposes , accordingly the Mirpurkhas Sugar Mill and other are regular in payment of Market Fees to the Market Committee concerned.
You are therefore advice to your own interest to get the issue settled in respect of payment of Market Fees, else this Committee will be constrained to proceed as per Law for Recovery of dues of Market Fees from your Mills.
Please take it as a final notice it is continuation and confirmation of this office letter No./MC/TMK/FSM/171/95 dated 26th, December, 1995.
Sd/- (NASIM AHMED RAJPUT) SECRETARY FOR CHAIRMAN MARKET COMMITTEE TANDO MUHAMMAD KHAN
-------
26. The notice, prima facie, shows that the demand of the market fee was with specific reference to the judgment of honourable Supreme Court of Pakistan the respondent No.1/plaintiff was not legally permitted to file a lis before a 'Civil Court' seeking a relief of declaration which directly or indirectly stand in conflict with principle, enunciated by honourable Supreme Court nor the Civil Court was ever competent to entertain a suit containing one of such relief(s). However, the record shows that since its establishment till date the respondent No.1/plaintiff has not paid a single penny towards such legally held liability hence enjoying the benefit of an entirely misconceived lis, which, in fact, revolved round the question of already settled principle of law and not of facts.
27. The learned appellate Court also not appreciated the fact that one who does not come with clean hands is never entitled for any relief as was held by honourable Supreme Court in the judgment (1999 SCMR 1402) that:
"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"
28. Without prejudice to above enunciated principle with regard to status of the sections 3 and 4 of the Act, if the plea of the respondent No.1/plaintiff is accepted then it would result in questioning the legality of all the works, done so far, by the applicant/defendant No.4 so far from the date of its establishment, which view cannot be held to prevail. Even otherwise, the plaintiff/respondent would have been justified in taking such plea if it had been paying a declared valid fee which is not the case with the present respondent/plaintiff, therefore, it (respondent/plaintiff) cannot take such plea of any procedural defect in compliance of section 4 of the Act. I am guided in my such view with the case law, reported as PLD 2004 SC 261 wherein it was held that:
"7. It is well settled that the acts performed by public authorities deserve due regard by they Courts and ever possible explanation for their validity should be explored and the whole gamut of powers in pursuance to which they act or perform their functions and discharge their duties should be examined. A presumption of regularity is attached to the official acts . In this regard, reference may be usefully made to the full Court judgment in the case of Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs and others v. Aftab Ahmed Khan Sherpao and others (PLD 1992 SC 723 at page 746) and the cases of Government of Sindh through Chief Secretary and others v. Khalil Ahmed and others (1994 SCMR 782), Syed Muhammad Khurshid Abbas Gardezi and others v. Multan Development Authority and others (PLD 1983 SC 151); Lahore Improvement Trust v. Custodian, Evacuee Property (PLD 1971 SC 811), Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collect (PLD 1966 SC 725) and Federation of Pakistan and others v. Ch. Muhammad Aslam and others (1986 SCMR 916).
"I".
10. Even otherwise, the provisions of a statue for the publication of a notification in official Gazette are general regarded by the Courts as directly and where their strict non-compliance does not provide any consequences. The legal certainty also requires that ordinarily a statutory instrument should not be treated as invalid because of a favour on the part of public functionaries to publish it in the official Gazette. There may be many things done on the basis of such an instrument .
29. From the above discussions and shining, provided by the above referred case laws of Honourable Supreme Court of Pakistan, I feel myself quite safe to conclude that judgment of the learned appellate Court cannot legally sustain and the respondent No.1/plaintiff cannot avail exception from paying the market committee fees under decree of the appellate Court. Needless to say that even a decree of Court shall not operate over and above the decision or principle, enunciated by Honourable Supreme Court of Pakistan nor would create a legal justification in decree holder in avoiding, the legal obligation/duty which, honourable Supreme Court, otherwise, held to be legal and valid. Accordingly, by short order dated 18.11.2014 judgment and decree of learned appellate Court was set aside and judgment and decree of the learned trial Court was restored. These are the detailed reasons whereby instant revision application was allowed and the impugned judgment passed by appellate Court was set aside while judgment passed by lower Court was maintained.
MH/M-198/Sindh Revision allowed.