2007 PLP 1345 (CLC)

SH. AZMAT SAEED, J.

The Instant constitutional petition has been filed by the Administrator and Secretary of the Market Committee, Singhpura, Lahore wherein it has been contended that a Market Committee was established in terms of sections 7 and 8 of the Punjab Agricultural Produce Markets Ordinance, 1978. The said Fruit and Vegetable Market was established over a piece of land measuring 40 Kanals, 2 Marlas and 57 sq. ft. owned by the Pakistan Railways, the possession whereof had been delivered to the said Committee. Subsequently, the petitioners wished to erect 12 mini shops in front of the Cycle Stand and 28 shops on the back of the Fruit and Vegetable Market facing the back road, for which requisite permission had been obtained from the Director of Agriculture (E&M), Lahore.

2. The grievance raised is that the respondents, who are Town Nazim of the area, T.M.A. and T.O. (Regulations) of the area are interfering in the said project more particularly with reference to the erection of 28 new shops facing the road on the backside of the Market. In the above perspective relief is sought from this Court.

3. The respondents have entered appearance and filed their report and parawise comments contesting the constitutional petition primarily on the ground that no building can be erected or re-erected without the permission of the Town Municipal Administration. The residents of the locality have also joined the fray by filing an application for being impleaded as a party i.e. C.M. No.1471 of 2006. The said applicants have also sought dismissal of the constitutional petition.

4. Learned counsel for the parties as well as the learned Additional Advocate-General Punjab have been heard and the record appended with this petition perused.

5. In pith and substance it is the case of the petitioner that the Market Committee in question has admittedly duly been established in, terms of sections 7 and 8 of the Punjab Agricultural Produce Markets Ordinance, 1978 and the exclusive authority to erect and construct further shops within the precincts of the Market Committee vests in the said Committee subject only to the approval of the Government of the Punjab and the respondents have no jurisdiction to demand or insist that any permission or sanction be obtained therefrom. In support of his contention the learned counsel for the petitioner has relied upon the judgment of the Honourable Supreme Court of Pakistan passed in Civil Appeals Nos.388 of 1986, 732, 733 and 619 of 1988.

6. The learned counsel appearing on behalf of the respondents has contended that in view of section 54-A of the Punjab Local Government Ordinance, 2001 no building can be erected or re-erected without the permission of the Town Municipal Administration and in the instant case no such permission has been obtained. It is further contended that by way of the proposed constructions the road and sewerage lines are being encroached upon and the erection of the new shops would cause grave inconvenience to the inhabitants of the locality situated behind the s<'~id Fruit and Vegetable Market.

7. The learned counsel for the applicants (in C.M. No.1471 of 2006) has echoed the contentions raised on behalf of the respondents and has further contended that the Market with its, 28 shops opening on the back street would cause great nuisance to the inhabitants.

8. The Punjab Local Government Ordinance, 2001 applies to the whole of the Punjab except for areas notified, as Cantonments under the Cantonments Act, 1924. It is not the case of either of the parties that the Market in question is situated in any Cantonment. In fact it is an admitted fact between the parties that the Market in question is situated within the territorial jurisdiction of the respondent Town Municipal Administration. Section 54-A of the Punjab Local Government Ordinance, 2001 in unequivocal terms sets out the functions and powers of the T.M.A. to include control over land use land development by public and private sectors for any purpose including Markets. The 6th Schedule of the Punjab Local Government Ordinance, 2001 read with section 195 thereof enumerates the general powers of the respondent-T.M.A. and para.24 thereof clearly states that no person shall erect or re-erect a building except with the previous sanction of the Local Government. Thus, it is clear and obvious that as a general rule no building can be erected or re-erected without the previous sanction of the Town Municipal Administration within the area of its jurisdiction. No exception has been created between the public and private sectors nor has a Market Committee been excluded from the operations of the aforementioned provisions of law.

9. The reference of the learned counsel to the judgment of the Honourable Supreme Court in Civil Appeals Nos.388 of 1986, 732, 733 and 619 of 1988 is clearly misconceived. In the said case there was obvious conflict between section 4(3) of the Punjab Agricultural Produce Markets Ordinance, 1978 and the Punjab Local Government Ordinance, 1979 and it was the said conflict which was resolved. In the lis at hand no such conflict exists between the provisions of the Punjab Agricultural Produce Markets Ordinance, 1978 and section 54-A read with section 195 and 6th Schedule of the Punjab Local Government Ordinance, 2001. With the help of the learned counsel the provisions of sections 3, 7 and 9 of the Punjab Agricultural Produce Markets Ordinance, 1978 have been examined. No specific powers in para materia bf section 54-A of the Punjab Local Government Ordinance, 2001 have been conferred upon the Market Committee or any other Authority. The learned counsel for the petitioners has failed to point out any provision of the Punjab Agricultural Produce Markets Ordinance, 1978 which confers any authority upon the Market Committee to sanction the erection or re-erection of the building. Similarly, the learned counsel have been totally unable to point out any provision in either of the two laws i.e. the Punjab Agricultural Produce Markets Ordinance, 1978 and Punjab Local Government Ordinance, 2001 to show that section 54-A of the Punjab Local Government Ordinance, 2001 and the 6th Schedule thereof does riot apply to an area where a Market has been established in terms of the Punjab Agricultural Produce Markets Ordinance, 1978.

10. In this view of the matter, this Court has no hesitation in holding that before any shops can be erected or re-erected by the Market Committee requisite sanction, consents and permissions must be obtained in terms of section 54-A and the 6th Schedule of the Punjab Local Government Ordinance, 2001.

11. Furthermore, whether the proposed construction of 28 new shops and 12 mini shops would cause a nuisance to the inhabitants is a matter which cannot be adjudicated upon by this Court as not only disputed questions of fact are involved but also such inhabitants would have alternative remedy both under civil law as well as the Criminal Procedure Code. The upshot of the above discussion is that this constitutional petition is without any merit and is hereby dismissed. M.H./N-37/L Petition dismissed.