P L D 2006 Karachi 5 (PLP)

The petitioners who are engaged in the business of manufacture and sale of Ghutka and Pan Masala purportedly under license from the Town Municipal Administration, Orangi Town, Karachi appear to be aggrieved by a Notification of the then City Nazim dated 8th June, 2005. The contents whereof may be produced as under:-- "NOTIFICATION No.Nazim/City/Cecy/7794/05 under section 141 of Sindh Local Government Ordinance, 2001 read with para. 44 of Dangerous and Offensive Trade of Schedule 6th read with section 195 of the Sindh Local Government Ordinance, 2001. City District Government hereby notifies that manufacture/sale/use and storage of betel products Ghutka and Babul very harmful for human consumption is illegal/un?authorized and prohibited with in the city areas of Karachi. In addition any substance which appears to be dangerous to life by reason manufacture such betel products shall be deemed harmful to human consumption. In the opinion of City District Government Karachi, it is expedient for public safety to' issue notification prohibiting the betel products "Babul and Ghutka" within the jurisdiction of City District Government Karachi. Any person manufacturing betel products, "Babul and Ghutka" possessing storing and importing the said items in contravention to this notification shall be punished under prevailing rules/laws. (Sd.) (NIAMATULLAH KHAN) CITY NAZIM CDGK."

2. The validity of this Notification has been impugned by the petitioners primarily on the ground that it was beyond the purview of power available to the City District Government as dangerous and offensive trades could only be declared by the Provincial Government. It was further averred that the petitioners having set up its business for sale of Ghutka and Pan Masala, the license could not be terminated nor could the impugned Notification be issued without giving him a proper opportunity of being heard. Indeed the question whether a particular trade could be declared offensive by the City District Government was a matter of some difficulty. Nevertheless, Mr. Sarwar Khan learned A.A.-G. and Mr. Manzoor Ahmed representing the City District Government pointed out that under section 92(1) of the Municipal Administrations Ordinance, 1960, the Government (Provincial) could by Rules define Articles and Trades which would be deemed to be dangerous or offensive and thereafter a Municipal Committee could direct that such trade could only be carried out under a license from the Committee. Therefore, in the context of the 1960 Ordinance perhaps Mr. Khalid Mehmood's contention could carry-weight.

3. Nevertheless, learned A.A.-G. pointed out that Item 44 of the 6th Schedule to the Sindh Local Government Ordinance, 2001 stipulated that the articles and trades specified in the annex shall be deemed to be dangerous or offensive for the purpose of this paragraph. The annex on the other hand apart from specifying 29, such trade contains the Item 30 which reads as follows:-- "Any other article or trade declared by Government or the concerned Local Government to be dangerous to life, health or property or likely to cause nuisance either from its nature or by reasons of the manner in which or the conditions under which, the same may be processed or carried on."

4. Evidently a fundamental difference between the present law and its predecessors in the same context appears to be that while under the Municipal Administration Ordinance, the power to declare a trade to be dangerous or offensive vested solely in the Provincial Government, the present dispensation confers the same concurrently on the Provincial as well as the Local Government. In view of the above, we find little force in Mr. Khalid Mehmood's contention.

5. Learned counsel further contended that despite the fact that he was carrying on business under a license no notice before issuance of the impugned Notification was served upon him. Since' the law C requires issuance of license by the Local Government, we are somewhat doubtful whether one issued by the Town Municipal Administration could be treated as one covered under Item 44 of the 6th Schedule. Be that as it may however, Mr. Manzoor Ahmed pointed out that the' license had expired before the issuance of the impugned Notification and Mr. Khalid Memood was unable to show whether any rights arising from the said license continued to remain vested with the petitioners at that time. For the foregoing reasons, we rind no force in this petition and would dismiss the same in limine. We are grateful to learned counsel for the parties for their valuable assistance. H.B.T./A-260/K????????????????????????????????????????????????????????????????????????????????? Petition dismissed.