P L D 1957 (W (PLP)

ORTCHESON. J.‑

This Writ Petition (No. 579 of 1957) has been filed by Ch. Amir Ahmad of 52, Old Anarkali, Lahore, in his capacity of President of an Association des cribed as the Lahore Cattle Owners' Association, composed of owners of milch cattle, and, according to the petition, consisting of more than 510 members. The relief sought is a writ of certiorari or other appropriate writ, order or direction cancelling an order dated the 15th of May 1957 passed by the District Magistrate, Lahore, under section 5 (1) (d) of the Punjab Public Safety Act of 1949, directing that with certain specified exceptions no person shall keep milch cattle in his possession or under his control in the areas within the jurisdiction of the Civil Lines, Qila Gujjar Singh and Mozang Police Stations. The order in question is attacked by the petitioner on grounds to be set forth later. The background of the case is as under :‑ The petitioner has produced the proceedings of an Extraordinary Meeting of the City of Lahore Corporation held on the 18th of April 1956. The Executive Officer reminded the Members that in the year 1954, Government had for the first time realised that one great problem in con nection with the City of Lahore was the presence of so large a number of animals that the control of traffic and the maintenance of sanitation had both become impossible. He went on to state that a city in which approximately 30,000 animals were kept and in which such a state of filth prevailed scarcely deserved the name of capital. He stated that under the orders of Government he had gone to Bombay to study conditions there and on his return had submitted a report. Along with that report he had also presented two schemes, one on a very small scale, involving practically no expenditure of capital, and the other, much more ambitious, for which an expenditure of fifty lakhs of rupees would be required. The smaller scheme was rejected by Government and it was eventually decided that the larger should be put into operation, the figure being however, reduced from fifty lakhs to forty. The scheme was submitted to . the Central Government and passed by the Agricultural Board. The late Chief Minister of the then Punjab, Malik Feroze Khan, took a great interest in it, and as a result of his efforts the Central Government promised to provide half the capital. When the scheme again reached the Punjab Government the Executive Officer was asked whether the Corporation could afford the necessary expenditure. He replied in the negative, whereupon the scheme. was handed over to the Department of Animal Husbandry, but nothing was apparently done. A drive for a cleaner Lahore was later instituted, in which the Commissioner of the Lahore Division took a great interest. The Executive Officer represented to him that a scheme should be initiated on however small a scale, and a piece of land measuring 250 acres situated on the Harike Road was earmarked for the construction of a Gujjar Colony. It was considered advisable to launch the scheme on an area of fifty or sixty acres only. Plans were prepared for effecting the construction of 160 sheds, each capable of holding ten cattle. Each shed was to have a but and a store attached to it. Various amenities were to be provided, for example, a tube‑well, a school and a veterinary hospital. The school, dispensary and veterinary hospital were built and the tube‑well installed, but when we visited the spot we found only six kacha sheds, the Administrator informing us that these had only been erected as a model and that the Gujjars were to put up their own with financial aid. In spite of the inability of the Corporation to construct the 160 sheds contemplated under the original scheme, steps were taken to secure the removal of the Gujjars from the areas of Civil Lines, Qila Gujar Singh and Mozang Police Stations. Mr. Muhammad Anwar, Assistant Advocate General, strenuously denied that any form of coercion was employed, but this is scarcely borne out by the terms of the notice, dated the 2nd of November 1956, served on a number of cattle owners. It runs :‑ "Dear Sir, You are hereby notified to apply to the Administrator, Corporation of the City of Lahore, for allotment of a site in the Gujjar Colony, Harike Road, Lahore before the 5th November 1956. "You will not be allowed to stay in any case in the Lahore Civil Line area after the 10th November 1956 and on your failure to vacate the present premises, proper legal action will be taken against you and you will be held responsible for all consequences." It would appear that the notice in question, however, strongly worded, proved ineffective, for on the 26th of March 1957, the District Magistrate, Lahore, passed an order under section 144 of the Code of Criminal Procedure prohibiting the keeking of milch cattle within the jurisdiction of the police stations in question, either for personal or commercial purposes, without a permit obtained in, writing from the Administrator, City of Lahore Corporation, or an officer duly appointed by him in that behalf. The order was to take effect from the 1st of April 1957 and was to remain in force for a period of two months, but its life was in actual fact much shorter, it being withdrawn on the 3rd of April. On the 15th of May 1957 the order now impugned was passed by the District Magistrate under section 5 (1) (d) of the Punjab Public Safety Act. 1949. The relevant portion runs :‑ "Whereas I am satisfied that the keeping of a large number of milch cattle for commercial purposes within the residential areas of Lahore results in the breeding of mosquitoes, spreads diseases, causes insanitation, obstructs traffic and is likely to endanger human of (sic) life and health ; And whereas I am satisfied that a very large number of persons have brought milch cattle and occupied various valuable evacuee sites or houses in the areas within jurisdiction of Police Stations Civil Lines, Qila Gujjar Singh and Mozang. And whereas it is necessary in the interest of public safety and the maintenance of the public order to prevent the indiscriminate maintenance of milch cattle on a large scale for commercial purposes in residential areas, by making an order as hereinafter appearing ; Now, therefore, in exercise of the powers conferred by section 5 (1) (d) of the Punjab Public Safety Act, 1949, 1, S. Alamgir, C. S. P., District Magistrate, Lahore, direct that no person shall keep, milch cattle in his possession or under his control, in the area within the jurisdiction of the Civil Lines, Qila Gujjar Singh and Mozang Police Stations. This order shall not apply to any person who keeps a cow or/and a buffalo for obtaining milk for personal consumption and obtains a permission in writing from the Administrator of the City of Lahore Corporation or an officer duly appointed by him in this behalf. Arrange ments will be made by the Administrator for the issue of permits at convenient places in different localities in the above‑mentioned areas." The petitioner challenges the legality of the above order on the following grounds :‑ (1) That it is of a general character and not with respect to "a particular person" within the meaning of section 5 (1) (d) of the Public Safety Act. (2) That it fetters the freedom of trade, business and profession guaranteed by Article 12 of the Constitution, the argument being that most of the cattle owners affected by the order are too poor to construct or arrange for accom modation or residence for themselves and their cattle outside the affected areas. (3) That that order is not bona fide and has been passed with the ulterior motive of forcing the Members of the Cattle Owners' Association out of the disputes areas. According to the petitioner this not only constitutes an abuse of the Public Safety Act but is contrary to Article 11 of the Constitution. (4) That the order contravenes the provisions of Article 5 of the Constitution inasmuch as it discriminates between the owners of different categories of cattle and between different owners in the same category. The petitioner adds that there is no warrant in law for requiring a permit to keep milch cattle. (5) That it contravenes Article 15 of the Constitution, since to compel cattle owners to leave their present premises involves loss of enjoyment of their property. (6) That it is bad inasmuch as no right was given to the persons affected to be heard before it was enforced. (7) The Administrator, Lahore, respondent No. 2 who was represented by Mr. Inayat Ullah, Advocate, lodged a preliminary objection to the effect that the petitioner, not being affected by the order, has no locus standi to file the petition. On the merits, after denying that any official pressure has been brought to bear upon any person to move to the Harike Colony, he contended that because of the serious situation created in Lahore by the presence of cattle kept in the filthiest possible conditions, it became necessary to promulgate an order under section 144 of the Code of Criminal Procedure, which was later replaced by the order now sought to be impugned. He added that it was discovered that large number of Gujjars in the affected areas were in illegal occupation of evacuee sites, which they were, persuaded by the Corporation of the City of Lahore to vacate.' and that it as a result of their eviction from sites which they were illegally occupying they have been compelled to leave the City of Lahore they can have no cause or grievance. In conclusion, the Administrator submitted that even if this Court be of the view that the order under section 5 (1) (d) of the Public Safety Act is for any reason not justifiable, alternative powers are available under section 396 (27) (a) and (6) of the City of Lahore Corporation Act, 1941, this being consequently not a fit case for the grant of a writ of certiorari. I shall first deal with the contention of the respon dents that the petitioner has no locus standi. In support of his case on this issue Mr. Anwar who argued on behalf of both t he respondents, relied on the the English case, Exparte Stott, ((1916) I K. B. 7). The facts of that case were that a licensing authority under the Cinemato graph Act, 1909, granted to a theatre proprietor a licence for the exhibition of cinematograph films at his theatre, the licence being subject to the condition that the licensee should not accept any film if he had notice that the licensing authority objected to it. A firm who had acquired the sole right of exhibition of a certain film in the district in which the theatre was situated entered into an agreement with the licensee for the exhibition of the film at his theatre. The licensing authority having given notice to the licensee that they objected to the exhibition of the film, the firm applied for a writ of certiorari to bring up the notice to be quashed on the ground that the condition attached to the licence was unreasonable and void, and that they were aggrieved by the notice as being destructive of their property. It was held by Avory and Rowlatt, JJ. that whether the condition was unreasonable or not, the applicants were not persons who were aggrieved by the notice and were not entitled to apply for a certiorari, Rowlatt J, adding that the mere fact that the justices' order prohibiting the exhibition deprived the applic ants of the benefit of the contract that they had made with the licensee did not give them a right to complain that the justices' order was bad. With great respect, I fully agree with the principle laid down in the above decision, but the facts with which it deals are not on all fours with those of the present case. More to the point is another case cited by Mr. Muhammad Anwar The Queen v. The Justices of Surrey ((1870) 5 Q B 466). The facts of that case briefly are that certain roads were certified by the justices to be unnecessary, it being consequently ordered that the roads in question should cease to be repaired by 'the parishes. E, an inhabitant of one of the parishes and living in the neighbourhood of the roads, obtained a rule for a certiorari to bring up the orders and certificates for the purpose of quashing them on certain grounds. It was held that, . though a certiorari is not a writ of course, yet as the applicant had by reason of his local situation a peculiar grievance of his own and was not merely applying as one of the public, he was entitled to the writ ex debito justiciae. Mr. Anwar's argument that the present petitioner has no Locus standi to bring the petition is based on the circumst ance that he does not live within the affected areas, being a resident of old Anarkah. The petitioner, on the other hand, has filed an allotment order issued by the Deputy Rehabilita tion Commissioner, Lahore, on the 10th of November 1950, long before the present dispute, according to which certain premises within the area of Mozang Police Station were allotted to the petitioner for the purposes of a dairy farm. Mr. Anwar did not concede that the petitioner was still running a dairy on the premises in question, but even if he is not, there is considerable force in Mr. Ghias Muhammad's contention that every cattle owner, whether keeping the animals for commercial purposes or for private consumption of milk, is aggrieved by the order in dispute, since animals can only be kept in the affected areas, even for private use, under a permit to be issued by the Administrator of the Corporation. Mr. Ghias Muhammad argues that the District Magistrate had no right to require such a permit to be obtained, and that since the petitioner keeps four cattle within one of the affected areas, he is hit by the order and has consequently a tight to challenge it. In my opinion, this argument must prevail, and Mr. Anwar's further contention that the petitioner cannot apply for a writ merely as a representative of an association has no force. If the petitioner is personally affected, the mere fact that he has applied to this Court in a representative capacity will not deprive him of his right. I accordingly hold that the petitioner has locus standi to file the petition. I shall next deal with the contention of the petitioner that the impugned order is bad as being of a general nature and not directed against any particular person. Mr. Anwar conceded the force of this contention, and, in my opinion, he is right in doing so. The relevant part of section 5 of the Punjab Public Safety Act runs :‑ "

5. Power to control suspected person.‑(1) The Govern ment or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order, it is necessary so to do, may, by order in writing, give anyone or more of tie following directions, namely, that such person‑ (a) . (b) . . (c) . . . . . . . . . . . . . . . . (d) shall conduct himself in such manner, abstain from such acts, or take such order with any property in his possession or under his control, as may be specified in the order". An enactment such as the Punjab Public Safety Act, which interferes with the liberty of the subject, must be strictly construed, and I have no hesitation in holding that an order couched in general terms, without any examination of individual cases, contravenes not only the letter but also the I spirit of the Act. As has already been noted, the reason for the passing of the order in dispute is said to be that the keeping of a large number of milch cattle for commercial purposes within the residential areas of Lahore results in the breeding of mosquitoes, spreads diseases, causes insanitation, obstructs traffic and is likely to endanger human life and health. Though perhaps not highly probable, it is nonetheless theoretically conceivable that some at least of the affected Gujjars are keeping their animals under strict control, not allowing them to wander into the streets, and are observing such sanitary conditions that no question of the breeding of mosquitoes, the spreading of disease, or the causing of insanitation arises. Such persons would obviously not come within the scope of the disputed order, and a direction for the mass removal of all cattle would in their case be not only unjust but ultra vires of the Act. I accordingly hold that the order sought to be impugned is bad in law on the above ground. Since the order must in any event be set aside, I do not consider it necessary to discuss the constitutional objections raised by the petitioner, but a word is necessary regarding Mr. Anwar's contention that as alternative powers are available to the authorities concerned under section 396 (27) (a) and (b) of the City of Lahore Corporation Act, this is not a fit case for the grant of a writ of certiorari. So far as I can understand this argument, it appears to be that because a valid order could have been passed, or valid action taken, under one provision of law, an invalid order under another F provision of law should not be interfered with by this Court in the exercise of its writ jurisdiction. If this be the argument, I have no hesitation in rejecting it. No doubt the issue of a writ is only a discretionary relief, but in my view this is eminently a fit case for the exercise of that discretion. I would accordingly accept the petition and direct that no action be taken in pursuance of it. The petitioner shall have his costs from the District Magistrate, Lahore. SHABIR AHMAD, J.‑

I agree but would add that the fact that the order of the District Magistrate under section 5 (1) (d) of the Punjab Public Safety Act has been held to be invalid by reason of the fact that it did not consider individual cases, is not to be interpreted to mean that if individual cases had been considered the order of the District Magistrate would have been held to fall within the provision of law under which it purports to have been passed. I would add further that if hardship to the person hit by the order were a relevant consideration I would have held the order of the District Magistrate to be invalid, because without making adequate arrangements for cattle‑sheds etc. the authorities wanted cattle‑owners‑ who fail to obtain permits to keep their cattle in the areas to which the order was made applicable, to shift to a place at a distance of about six miles from Lahore. If the order of the District Magistrate were to be carried out thousands of milch cattle will have to leave at once and no one can consider the Gujjar Colony provided by the City of Lahore Corporation on the Harike Road in its present state to be suitable accommodation for the animals which are expected to lodge there. A.H. Petition accepted.