1989 PLP 270 (MLD)

(e)??????????????????? the fees to be charged from brokers, commission agents, weigh men and other persons practising their calling therein. Section

106. Cattle shows, zoo, etc.? (1)??????????????????? An urban local council shall not hold cattle shows and fairs within the limits of its local area, but may hold Bakar Mandi for sale of cattle meant for slaughter and charge such fee per cattle-head sold as the bye-laws may provide; Provided that an urban local council which had been holding cattle shows and fairs before 17th January, 1980 within the limits of its local area may continue holding such cattle shows and fairs and charge such fees from the people attending such shows or fairs as the bye-laws may provide. ??????????? (2)??????????????????? .....................................?????????????????????? Section

161. Offences.--????????? An act or omission specified in the Third Schedule shall be an offence under the Ordinance. The third Schedule (Offences under the Ordinance). Item No. 34.??????????????? Doing an act without licence or permission when the doing of such act requires a licence or permission under any of the provisions of the Ordinance or the rules or bye-laws. Item No. 62.??????????????? Contravening any of the provisions of the Ordinance, rules or bye-laws, or any order, direction, notice or declaration made or issued hereunder. ??????????? Second Schedule (Taxes to be levied by local councils). Part II (Taxes of Zila Councils) Item No. 17. ?????????????? Fees on sale of cattle at cattle markets/fairs. Part III (Taxes of urban local councils) Item No. 17. ?????????????? Market fees. Item No. 20: ??????????????? Tax on animals and sale of animals. Constitutional provision relied upon by the petitioners is Article 18 which reads as follows:-- "Subject to such qualifications, if any, as may be prescribed by law, eve citizen shall have the right to enter upon any lawful profession o occupation, and to conduct any lawful trade or business: Provided that nothing in this Article shall prevent-- (a)??????????????????? the regulation of any trade or profession by a licensing system; or (b)??????????????????? the regulation of trade, commerce or industry in the interest of free competition therein; or (c)??????????????????? the carrying on, by the Federal Government or Provincial Government or by Corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons."

7. First contention raised by 'the learned counsel appearing in support of W.P. No. 2174 of 1986 was that from the facts averred in the petition which have not been denied by the respondents on oath, it was quite clear that the respondent-Zila Council or for that matter its contractors/ lessees did not hold the cattle market within the Municipal limits of Pattoki before the target date mentioned in the proviso to clause (xxxix) of section 51 of the Ordinance viz. the 17th January, 1980 and consequently the Zila Council was not entitled to hold the cattle market in the limits of the local area of municipal committee, Pattoki in terms of the first proviso. The contention even if accepted as valid does not make any material difference because the second proviso to the aforesaid clause in any case allows the Zila Council to hold the cattle market in the area of the urban local council even after 17-1-1980 though in that case it is required to pay a part A of its income from the cattle market to the urban local council concerned. Mr. Abid Hassan Minto, counsel for the petitioners in W.P. No. 648 of 1987, however, argued that the second proviso was only a clarification of the first proviso. According to the learned counsel, the clarification sought to be made was that a Zila Council shall not hold Bakar Mandis and that if it holds the cattle markets after 17-1-1980, it shall share its income with the urban local council. The interpretation sought to be placed on the second proviso cannot be accepted for the simple reason that all the three provisos were enacted simultaneously by Ordinance X of 1982 and as such there was hardly any need or occasion for making any clarification. Moreover, the language employed in the two provisos shows that they are making a provision for two different situations. Under the first proviso, Zila Council holding a cattle market in the limits of the local area of an urban local council before 17-1-1980 has been allowed to continue to hold it in accordance with the bye-laws whereas in the second proviso, a Zila Council has B been allowed to hold the cattle market in such area even after 17-1-1980 with the rider that it shall pay a share of its income from the cattle market to the concerned urban council. To me, it appears that the second proviso gives an independent right to the Zila Council to hold a cattle market within the local limits of an urban local council even though it was not holding such a cattle market before 17-1-1980. The scheme envisaged in the provisos to clause (xxxix-?a) of section 51 coupled with section 106 of the Ordinance appears to be that (i) That an urban Local Council shall not hold cattle shows and fairs within the limits of its local area but if it was holding such shows and fairs before 17-1-1980, it may continue to hold them and in that event, Zila Council shallot hold cattle fairs, markets and shows within a radius of 3 miles from the limits of Urban Local Council, (ii) A Zila Council shall not hold Bakar Mandis for the sale of cattle meant for slaughter in the limits of local area of the Urban Local Council which function has been assigned exclusively to Urban Local Council. (iii) If Zila Council was holding cattle fairs, markets and shows in the limits of Urban Local Council before 17-1-1980 it may continue to hold the same in accordance with its bye-laws, (iv) Even if Zila Council was not holding cattle fairs, markets and shows before 17-1-1980, it may hold them even after that date but in that case, it shall have to pay a prescribed share of its net income from such shows, fairs and markets to the Urban Local Council concerned. The net result that emerges from the foregoing discussion is that even if the Zila Council was not holding the cattle market within the municipal 'emits of Pattoki before 17-1-1980, it could still hold such cattle market even after 17-1-1980 in terms of the second proviso to clause (xxxix-a), of course, subject to the provision contained in the third proviso. It may be noted here that Municipal Committee, Pattoki not being a party in the present proceedings, its stand is not known. In any case, it has not been canvassed by either of the parties that the Municipal Committee had been holding cattle shows and fairs before 17-1-1980 or that it continues to hold them even now.

8. Be that as it may, assuming that the Zila Council is empowered to hold cattle market within the municipal limits of Pattoki to the exclusion of the Municipal Committee, question which really requires consideration/ determination in these cases is whether the Zila Council can also thereby lawfully stop the petitioners from carrying on their business of the sale and purchase of the cattle/animals in their own private premises. Contention of the learned counsel for the petitioners is that Zila Council has not been given any such authority in law. On the contrary, section 51 clause (xxv) rather shows that Zila Council was not to have any concern with the private markets. Reliance in this behalf was placed on the words "other than private markets" added in clause (xxv) through amendment made vide Punjab Ordinance III of 1982. Learned counsel further argued that the petitioners had a right guaranteed under Article 18' of the Constitution to enter upon any lawful occupation and to conduct any lawful trade or business which right could not be interfered with by the Zila Council particularly when law has not given to it the exclusive right to hold the cattle market in the Municipal limits. According to the learned counsel, private markets set up within the Municipal limits are regulated by the Urban Local Council as provided under section 62 of the Ordinance.

9. Learned counsel appearing for the respondents submitted in reply that since the law was amended to authorize the Zila Council to hold the cattle fairs /markets to the local area of Urban Local Council, it necessarily implied that no one else shall hold the cattle market in that irea. Reference was made to the proviso added to clause (xxxix-a) of section 51 and amended section 106 of the Ordinance. It was further contended on behalf of the respondents that section 62 which provided for private markets within the Urban Limits stood impliedly repealed by virtue of the amendments made in section 51 clause (xxxix-a) and section 106 and in any case, it was of no avail to the petitioners. Argument of the learned counsel was that under section 62, no private markets could be established or maintained except under a licence granted by the Municipal Committee and since the Municipal Committee itself was precluded from holding a cattle market as a result of the aforementioned amendments made in clause (xxxix-a) and section 106, it would not be available to it to issue license to the petitioners for private markets. Learned counsel for the respondents also categorically asserted at the Bar during the course of his arguments that the petitioners had not obtained any licence from the Municipal Committee, Pattoki for holding their private markets. According to him, they had never applied for it. His submission, therefore, was that they were doing unlawful business and as such they could not rely upon Article 18 of the Constitution. It was contended by the learned counsel that the petitioners by doing business without the requisite licence were committing offence under section 161 read with items Nos. 34 and 62 of Third Schedule of the Ordinance. It was argued that in these circumstances, petitioners were not entitled to any relief in discretionary writ jurisdiction.

10. I have considered the submissions made by the learned counsel for the parties. The proposition canvassed on behalf of the respondents in respect of implied repeal and the exclusive right of the Zila Council to hold the cattle market in the urban limits has not impressed me. 1t has not been denied that the petitioners in each case have been holding the private cattle `market' within the Municipal limits of Pattoki. In fact, case was argued by both the 'sides 'on F premises that the petitioners had set up their own Market where they were doing the business of sale and purchase of animals. It may be relevantly observed that the 'market' as noted above has been defined in the Statute as a place where the people assemble, inter alia, for the sale and purchase of livestock or animals. The Ordinance contemplates markets of two kinds, private and public. Public markets are established and maintained by the Urban Local Council under section 101 and private markets are owned by private individuals though they are to be run under a licence granted by the Urban Local Council. Section 62 makes a provision for private markets-for sale of food or drink or animals within the local area of an Urban Local Council which is empowered to levy market fee vide Item No. 17, Part III of Second Schedule. Urban Local Council is also authorised to impose tax en the sale of animals vide Item No. 20, Part III of Second Schedule. The word `animal' used in the aforementioned provisions has not been defined in the Statute. Its dictionary meaning, however, shows that it is a term of F wide connotation which would include the `cattle' as defined in section 3(xix) of the Ordinance. According to the Black's Law Dictionary, Third ED., `animal' means any animate being which is endowed with the power of voluntary motion: According to the Shorter Oxford English Dictionary, `animal' is (1) a living being endowed with sensation and, voluntary motion, ??..??? (2) one of the lower animals; a brute or beast, as distinguished from man. Similar meaning is given in Chambers Twentieth Century Dictionary. In the language of the law, the term includes all living creatures not human. State v. Winglesworth 93 Kan

610. In Prem's Judicial Dictionary Volume No. 1, it is stated "The common law divides animals having the power of locomotion exclusive of man, into three classes, namely: such as are tame animals; such as are wild animals; and such as, whether wild or tame, are of so base a nature as not to be the subject of larceny."

11. The foregoing discussion shows that the private cattle market held by the petitioners is within the contemplation of section 62 of the Ordinance. Now, in order to examine the precise import, scope and effect of the amendments made in the relevant provisions of section 51 and section 106, it may be worthwhile to refer to the amendments made from time to time in these provisions. Section 51 deals with the functions of Zila Council. Clause (xxv) of section 51 in its original form was as under:-- "Provision, regulation and maintenance of markets." It was amended by Ordinance III of 1982 whereby the words "other than private markets" were added. Amended clause (xxv) thus reads as follows:-- "Provision, regulation and maintenance of markets other than private markets." Ordinance V of 1980 added the following two clauses to section 51:-- (xxxix-a) holding of cattle fairs and markets in accordance with bye?-laws. (xxxix-B) Compulsory registration of sale of cattle and other animals at castle fairs and markets. Clause (xxxix-a) was re-cast by Ordinance X of 1982 which also added three provisos thereto. Clause (xxxix-a) as also provisos thereto have been reproduced in para 6 above. Section 106(1) providing for holding of cattle shows and fairs by an Urban Local Council was originally enacted as follows:-- "An Urban Local Council may hold cattle shows and fairs within the limits of its local area and charge such fee from the people attending such shows or fairs as the bye-laws may provide." The afore-quoted provision of section 106 was substituted by Ordinance X of 1982. Substituted provision has been reproduced above in para 6.

12. From the above resume of legislative provisions, it appears that function of holding of cattle fairs and markets (evidently in the limits of its own local area) was assigned to Zila Council for the first time by Ordinance V of 1980. Subsequently, by Ordinance X of 1982, clause (xxxix-a) was recast adding the words `shows' and "in the limits of its local area" and provisos were also added thereto enabling/empowering the Zila Council to hold cattle fairs and markets also in the limits of local area of Urban Local Council, of course, subject to certain conditions mentioned therein. Simultaneously, section 106 was also amended to bring it in consonance with clause (xxxix-a). A closer examination of the amendments made in clause (xxxix-a) of section 51 and section 106 would reveal that the object of the amendments was to resolve the conflict between Zila Councils and Urban Local Councils and to re-define their functions in the matter of holding the cattle fairs/markets and Bakar Mandis in the limits of Urban Local Council. These amendments did not in any manner affect the right of the private individuals to hold private cattle markets in the limits of Urban Local Council as envisaged in section

62. In fact, private markets were left outside the domain of Zila Council which is manifest from the amendment made in clause (xxv) of section

51. It may be observed that if the law-maker had intended to create a monopoly in favour of the Zila Council and to exclude the private cattle markets altogether, it would have suitably amended section 62 and the definition of `market' so as to take away the sale and purchase of animals from the ambit of these provisions but significantly enough, this has not been done. It seems that the legislature intentionally and consciously allowed the private cattle markets to continue in the interest of free and healthy competition. As regards the argument of implied repeal, law is very well settled that the Courts do not favour repeal by implication. Inference of repeal should only be drawn if the provisions of a later Act are so inconsistent with, or repugnant to, those of an earlier Act that the two cannot stand together. If the two can be reconciled on a reasonable interpretation, that would be likely to be in consonance with the intention of the Legislature. Refer PLD 1958 (W.P.) Lah.

229. Reference may also be made to "Ghulam Sarwar v. Imtiaz Nazir" (PLD 1966 S.C. 559) wherein it was observed "The doctrine of implied repeal can only be pressed ipso service if an unmistakable: intention is evidenced by the language used in the later enactment and the latter cannot stand with the previous enactment." In the present case, as held above, there is no repugnancy between the provisos to clause (xxxix-a) of section 51 and section 62 of the Ordinance. The one provides for holding of cattle fairs/markets by Zila Council in the limits of Urban Local Council and the other envisages setting up and maintaining a private market for the sale and purchase of animals under a licence granted by the Municipal Committee. It may also be noted that if section 106 as originally enacted was not inconsistent with the provisions of section 62, there should be no inconsistency between section 62 and the provisos to clause (xxxix-a) of section

51. It may be observed that the first and second provisos to clause (xxxix-a) enacted an extraordinary provision in so far as it enabled/empowered the Zila Council also to hold cattle markets/fairs in the limits of Urban Local Council. These provisos have, therefore, to be construed strictly and cannot be interpreted to have repealed or nullified by implication the provisions of section 62 in the relevant aspect.

13. I also find no force in the contention raised on behalf of the respondents that it would not be available to the Municipal Committee to issue licence for private cattle markets. Since section 62 has not been repeated expressly or by implication, there is no embargo on the power of the Municipal Committee to grant licences in appropriate cases.

14. In view of what has been said above, my conclusion is that the Zila Council though empowered to hold cattle fairs/markets iii the limits of Municipal Committee, Pattoki has no authority in law to interfere with or to stop the J private markets held for the sale and purchase of animals as section 62 clearly contemplates establishment of such markets though under a licence.

15. I now take up the last contention of the respondents. Contention raised was that the petitioners had not obtained any licence from the Municipal Committee which was a mandatory requirement under section 62 for holding the private markets. It may be observed that no such assertion was made in the para-wise comments filed by Zila Council and this plea was taken by the learned Counsel for the respondents during the course of arguments. Be that as it may, learned counsel appearing for the petitioners did not deny this oral assertion. Mr. Abid Hassan Minto, learned counsel for the petitioners in W.P. No. 648 of 1987, however argued that section 62 laying down the necessity of a licence for establishing a private market was ultra vires the fundamental rights guaranteed by the Constitution. Reliance was placed on the case of Ghulam Zarrin' reported in PLD 1965 Dacca 156. 1 have cone through the case cited by the learned counsel. It does not support his submission. In that case, Inter-provincial Trade Ordinance (IV of 1964) came under examination and it was held to be ultra vires the Constitution on account of excessive delegation/abdication of essential legislative function. It was, however, observed in the regulation of trade by a system of licensing was permissible tinder the Constitution. Following observations made in para 103 of the precedent case may with advantage he referred to:-- ??????? "Before parting with this case, we would like to observe that it is, probably, desirable that Inter-Provincial `Pan' trade should be regulated by a licensing system ................. Proposition is fairly well settled that a trade or business can be regulated by a system of licensing and the law providing for such regulation is not violative of the Constitution. Reference may be made to "East and West Steamship Co. v. Pakistan" (PLD 1958 S.C. 41), wherein it was held that the Control of Shipping Act which permitted the carriage of goods by ships only under a licence was not repugnant to the fundamental right guaranteeing the freedom of trade and. business. Thus the contention raised by Mr. Minto is without any merit.

16. Now proceeding on the premises that the petitioners had not obtained the licence and were running their private markets in contravention of section 62 of the Ordinance, the question is, should the writ petitions be thrown out on this E short ground? Argument of the learned counsel for the respondents was that if the writ petitions were allowed, it would amount to perpetuating an illegality. It may be observed that whereas it is possible to ensure that the petitioners shall not be able to hold their cattle markets m derogation of law and thereby to prevent them from committing any illegality, but if the writ petitions are dismissed as contended by the learned counsel for the respondents, notwithstanding the view expressed hereinabove that the Zila Council has no authority in law to interfere with or stop the private cattle markets, this will certainly amount to permitting an illegality to continue. In the circumstances, it is directed that the respondent Zila Council and/or its contractor/lessee shall not interfere with the private cattle markets set up by the petitioners in the municipal limits of Pattoki. It is, however, observed that this direction shall not entitle the petitioners to hold their cattle markets within the local limits of Municipal Committee, Pattoki unless and until they obtain a licence as required under section 62 of the Ordinance from the Municipal Committee and, of course, do their business strictly in conformity with the conditions of the licence. M.Y.H./T-50/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.