P L D 1964 Supreme Court 397 (PLP)

(c) Punjab Municipal Act (III of 1911), S. 152‑Municipality's resolution limited by expression to "prostitutes and brothels" Professional entertainers by song and dance, held, not affected by resolution. (d) Punjab Municipal Act (III of 1911), S. 152‑Municipality's resolution prohibiting keeping of brothels and residence of prac tising prostitutes within specified area‑Rest of Municipal area comprising either agricultural or vacant land, or land vested in Government or Custodian of Evacuee Property‑Resolution, held, passed "in bona fide regulation" of profession of prostitution‑ Supreme Court, however, stressed the necessity of a "proper enquiry" as to the desirability or otherwise of allowing the pro fession to be practised "where it had been established since the foundation of the town"‑Absence of precise requirement of law or rules in matter of "zoning regulations" pointed out‑Land Initially allocated by Government, at time of foundation of town, for residence of prostitutes‑Whether operates as a covenant that such land shall be so used for all time‑Persons affected by Municipality's resolution deemed to be entitled to "some assistance in procuring places of residence for themselves" in circumstances of case. Abdur Rashid Sheikh Senior Advocate Supreme Court (Ilyas Khan Advocate Supreme Court with him) Instructed by Muhammad Habibullah Attorney for Appellants (In both Appeals). Ijaz Hussain Batalvi Advocate Supreme Court instructed by M. A. Rahman Attorney for Respondent (In both Appeals). Date of hearing : 3rd April 1964. CORNELIUS, C,. J.‑This judgment relates to two analogous Civil Appeals No. 58 of 1963 by Mst. Sardaran and 75 others and No. 59 of 1963 by Mst. Majidan and 35 others, both against the Municipality of Lyallpur. The order under appeal is by the High Court of West Pakistan, made in second appeal from two decisions by the Additional District Judge of Lyallpur affirming the dismissal of the two suits brought by the respective appellants in the Court of a Civil Judge of Lyallpur. The case falls under section 152 of the Punjab Municipal Act. By unanimous Resolution No. 37/A, dated the 30th July 1956, the Municipality specified 20 different localities where the keeping :)f a brothel and the residence of a practising prostitute were prohibited with effect from the 15th September 1956. It appears that a period of a month and a half was allowed for the persons affected to make other arrangements for their residence and for the further carrying on of their profession. Instead, Mst. Sardaran and 75 other women filed a suit on the 27th August 1956 seeking a declaration to avoid the resolution, as well as a permanent injunction to enable them to continue their residence where they were. A temporary injunction staying the effect of the resolution was also asked for and granted. Mst. Majidan and the other 35 women filed another suit for the same relief on the 20th December 1956. It may be mentioned here that operation of the Municipal Committee's resolution has been stayed throughout the litigation which comes to an end today so that the plaintiffs have been living and practising their profession where they lived and so practised, on the 30th July 1956. Special leave to appeal was granted by this Court "t consider the question whether the Municipal Committee could legally pass an order which excludes the petitioners from the whole habitable area of the Municipality." We have hear Mr. Abdur Rashid Sheikh, Senior Advocate for the appellant and Mr. Ijaz Hussain Batalvi for the Municipal Committee. The wording of the resolution aforesaid follows closely the language of section 152 of the Punjab Municipal Act, which empowers the Committee by public notice to prohibit the keeping of a brothel or the residence of a practising prostitute "in any specified area of the Municipality." The main ground of challenge to this order was that apart from the areas specified in the resolution, there was no other abadi in the Municipal area, and it was pleaded that to prevent their residence in the specified areas was equivalent to driving them out of the Municipality altogether. It was mentioned as a further ground that the main locality occupied by the brothels had originally been sold by the Provincial Government for the construction of houses for that very purpose. The Municipal Committee raised a number of preliminary objections. The first was that no notice had been given under section 49 of the Punjab Municipal Act. Another was that the suit was not brought in proper form because no application under Order I, rule 8, Civil Procedure Code, to bring a suit in a representative capacity had been made. The third was that there had been an earlier suit by some of the plaintiffs for the same reliefs, which had failed. The trial Judge found against the Municipality on each of these points and it does not appear that they were raised again in the appeals which followed. In their written statement, the Municipal Committee declared, that they did not wish to drive practising prostitutes out of the town, but only wished them "to end their profession." This latter attitude was not adhered to, and the matter was never placed in issue or decided. Both at the time when the suit j was brought and at the present time, the question might have been raised that such an intention expressed without qualification is contrary to a fundamental right given by the Constitution. However, the point does not require to be decided here. The case for the plaintiffs was that apart from the specified areas, all other land within the Municipal boundaries was either agricultural or vacant land, or land vested either in the Govern ment or in the Custodian of Evacuee Property. This was said in order to establish that it was impossible for the plaintiffs to find residences for themselves elsewhere within the Municipality. In each of the Courts; below, the view was taken that it was not the duty of the Municipal Committee to provide alternative accommodation for those affected by the prohibitory order. The question was raised by some of the plaintiffs that they were not) practising prostitutes, but were professional entertainers by song and dance, and this too was adjudicated upon by all the Courts c below, although it was plainly a matter lying outside the suit, which was for a declaration that the prohibitory order was bad in law. Since that order was limited by expression to prostitutes and brothels, those who were not prostitutes or inmates of brothels, were not affected thereby. Mr. Abdur Rashid has attempted to urge that the view taken by the Courts below on the point whether in fact the prohibitory order amounted to an order of expulsion of the plaintiffs from the Municipal area by reason of their profession, is not correct. He emphasised the difficulties which the plaintiff's would face in finding other accommodation for themselves. Their present residences being in the heart of the city were eminently suitable for the exercise of that profession, and it appeared that the pre‑Partition Government which was responsible for establishing the town of Lyallpur had thought it appropriate to allocate a considerable area in the centre of the new town for the practice of this profession. Without suggesting that the Municipal Committee lacked power to regulate the exercise of the profession, despite the Government order allocating the land in question for that very purpose. Mr. Abdur Rashid urged that this was a factor which the Committee may well have borne in mind. He cited certain early decisions of the Allahabad High Court, both of which are dealt with in the judgment of the High Court, and have been found to turn upon the interpretation of a provision in the United Provinces Municipal Act, which is in relevant respects materially different from the section of the Punjab Municipal Act here in question. Since it is clear that only a portion of the Municipal area is covered by the prohibition, the argument that power has been exercised so as to regulate the profession out of existence is not available. The declaration that the intention of the Municipality was that the prostitutes should "end their profession," which was not pressed at any later stage of the litigation, would merely mean that its practice was not to be allowed to continue under the too favourable conditions it was enjoying, in the centre of the city. The suppression of immorality is a duty which the civil authorities are charged with. Therefore, it may be safely held that the prohibitory order was one made in bona fide regulation of the practice of this ancient profession in the Municipality o Lyallpur. If it suffers from a fault, it may perhaps be this that it does not appear that this regulation, which falls within the general category of "zoning regulations", was preceded by a proper enquiry as to the desirability or otherwise of allowing the profession to be practised where it had been established since the foundation of the town, and again as to the appropriate steps, which should be taken to disperse the practitioners of the profession and confine their activities to areas selected for the purpose in the general interest, including that of the practitioner themselves. These are the minimum requirements which have been thought in a number of other countries to be reasonably applicable where interference in the exercise of Municipal authority is proposed with the modes of livelihood actually practised by persons resident within the Municipal area. It is a matter for regret that there is no precise requirement of law o rule imposing a duty upon such local bodies to regulate the exercise of their prohibitory powers, in some such way as indicated above, so as to carry out the object in view, for the general betterment, while reducing the necessary inconvenience to a minimum. However, in the existing circumstances, it is still possible for the Municipal Committee to implement the prohibi tory order in the manner of a "zoning regulation" giving such assistance to the affected persons as may be within their powers, so as to enable them to shift their places of residence and business, with as little inconvenience as the circumstances allow. Although it is not argued that the allocation of land by Govern ment in the centre of the town exclusively for brothels and practising prostitutes operates as a covenant that the area shall be so used for all time, despite the regulatory power of the Municipality, nevertheless it is a matter to be borne in mind that there is warrant of long standing for the practice of the profession at that place. If then, by a new order, the profession is not to be practised there but at some other place or places, the persons affected are entitled to some assistance in procuring places of residence for themselves, where they may live and continue their profession, if they choose. As was remarked at the outset, any attempt to squeeze out the profession or otherwise render it extinct in Lyallpur may perhaps be found to be inconsistent with the provisions of the present Constitution, which allow the free practice of professions, subject to the power of regulation. With these observations, we dismiss the appeals, but make no order as to costs. A. H. Appeals dismissed.