LPA No. 38 of 2011

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

LPA No. 38 of 2011

Date of decision 15 .3.2011

Arun Kumar

... Appellant

Versus

State of Haryana and others

... Respondents.

CORAM:

HON'BLE MR. JUSTICE M.M. KUMAR

HON'BLE MR. JUSTICE T.P.S. MANN

Present:

Mr.V.B.Aggarwal,Advocate for the appellant

1. To be referred to the Reporter or not ?

2. Whether the judgement should be reported in the Digest ?

M.M.KUMAR, J.

The instant appeal filed under Clause X of the Letters Patent is

directed against the judgement dated 1.7.2010 of the learned Single Judged

holding that the appellant would be engaged as Auctioneer as and when

required for auction to be conducted by the respondent- Committee.

2.

It is not disputed that the appellant was engaged as Auctioneer on

commission basis at Market Committee Shahbad on 25.4.1984 (R.2). His

rate of commission was 8 paise per Rs. 100/- of the value. The learned

Single Judge has found that the Auctioneer is appointed on commission

basis and not on regular basis. He is to earn commission at a specified rate.

3.

Mr. V.B.Aggarwal, learned counsel for the appellant, has

argued that Section 43(2)(viii) of the Punjab Agricultural Produce Markets

Act, 1961 (for brevity 'the 1961 Act') would cover the case of the appellant

because it uses the expression 'other functionaries'. The expression 'other

functionaries' would include even the Auctioneer and therefore the post of

the appellant shall be regarded as statutory in character.

LPA No. 38 of 2011

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4.

We have thoughtfully considered the submissions made by the

learned counsel and are unable to persuade ourselves to accept the same.

Reliance of the learned counsel on Section 43(2)(viii) of the Act is wholly

mis-placed. In order to appreciate his submission , we set out below Section

43 of the Act:

“ 43. Power to make Rules.- (1) The State Government may by

notification makes rules for carrying out the purposes of this

Act.

(2)In Particular and without prejudice to the generality of the

foregoing power, such rules may provide for-

(i) to (viii) xx

xx

xx

xx

(viii) the issue by a Committee of licences to brokers,

weighment, measurers, surveyors, godown-keepers or

other functionaries, the form in which, and the

conditions under which, such licences shall be issued

or renewed and the fees, if any, to be charged

therefore;”

5.

A perusal of Section 43(i) of the Act would show that it is an

enabling provision and the State Government may make rules for carrying

out the purpose of 1961 Act. Sub Section 2 of Section 43 would further

show that the rules to be framed by the respondent- State may provide for

issuance of licenses by a Committee to brokers, weighmen, measurers,

surveyors, godown-keeper or other functionaries. There is no mention of

Auctioneer. In the absence of any specific rule having been framed by the

respondent- State, it would not be possible to conclude that the engagement

of Auctioneer has a statutory flavor. Rule 19 of the Punjab Agricultural

LPA No. 38 of 2011

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Produce Market (General) Rules, 1962 would further show that only the

aforesaid categories have been included and therefore there is no rule

framed for the Auctioneer. In the absence of any statutory content it cannot

be concluded that the appellant has acquired any right to be engaged as

Auctioneer. He has been engaged on commission basis and the learned

Single Judge has permitted him to continue as such by giving the option to

the respondent to keep on engaging him as and when required to function as

Auctioneer. There is thus no merit in the appeal. Dismissed.

(M.M.Kumar)

Judge

(T.P.S. Mann)

15 .3.2011

Judge

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