2005 PLP 1665 (CLC)

On 29-7-2003 the petitioners filed a suit against the respondents. In the plaint, it was stated that they are respectively the President and Secretary of the Association of Hawkers (Khancha Farooshan) and are selling eatables in the New Sabzi Mandi, Multan, .since years. The respondent No.1 was allotted a 17 Marlas plot in an auction held by the Market Committee on 19-7-2003 who is giving out that the hawkers should pay and obtain licence from him otherwise they will be removed. An advertisement has been issued that only such persons can sell eatables in the Market who have licences from the respondent No.1. With these averments, a declaration was sought that the said act of respondent No. 1 is illegal and void and he be restrained from interfering with the right to A do business of the petitioners. In its written statement, the respondent No.1 pleaded that the plot has been acquired in auction for selling eatables and only respondent No. 1 is authorized to sell eatables. It was admitted that the said advertisement has been issued by the respondent No.1. The respondents Nos.2 and 3 proceeded to state that they had not issued any licence to the hawkers. Along with the suit, an application for temporary injunction was filed which was also resisted. The learned trial Court dismissed the application vide order 5-4-2004 while a learned Additional District Judge, Multan dismissed the first appeal of the petitioners on 3-8-2004.

2. Learned counsel for the petitioners contends that the impugned orders have been passed in .violation of the provisions of Article 18 of the Constitution of the country read with Rule 8 of the Agricultural Produce Market (General) Rules, 1979. The precise contention is that in the absence of any legal or statutory requirements that the petitioners require a licence to do business in the Market, the Market Committee as well as its allottee i.e. the respondent No.1 cannot interfere with the business of hawking by the petitioners. Learned counsel for the respondents, on the other hand, contend that the petitioners cannot sell eatables in the Market in view of the express prohibition in section 4 of the Punjab Agricultural Produce Markets Ordinance, 1978.

3. I have examined the available copies of the records. It is an admitted fact that the petitioners are hawkers and are hawking eatables in the said Market/Sabzi Mandi. Rule 8(c) of the said Rules of 1979 specifically provides that hawkers who are not engaged in dealing of agricultural produce shall stand exempted from taking a licence.

4. Now section 4(4) of the said Ordinance of 1978, being relied upon, by the learned counsel for the respondents provides that no persons shall within the market, store, purchase, sell or in any other manner deal in any commodity which is not declared as agricultural produce. The said provision has to be read with the provisions for declaration of a notified market area as also specification of the agricultural produce under the Ordinance. It does not at all mean that hawking of eatables in the Market area would not be allowed. If the interpretation being placed by the learned counsel for the respondents on the said section 4(4) of the Ordinance is accepted then the very allotment of the plot and setting up of a hotel therein by respondent No.1 itself will have to be declared illegal and void.

5. Now Article 18 of the Constitution vests the citizens of the country with an absolute right to conduct any lawful trade or business subject, of course, to its regulation in accordance with the proviso to the said Article. Now whereas rule 8 of the Rules of 1979 framed by the Provincial Government specifically exempts the hawkers from obtaining a licence provided they are not dealing in agricultural produce, there is no other statutory regulation imposing any condition upon the hawkers to sell eatables in the said market. There being no restriction prescribed either in the Ordinance or in the Rules framed thereunder, the respondents have no lawful authority whatsoever to cause any hindrance in the business of the petitioners-hawkers. The learned counsel for the petitioners has very correctly relied upon the case of Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others PLD 2005 SC

193. The petitioners do have a prima facie case and they are bound to suffer an irreparable loss in case the respondents interfere with the business of the hawkers in the Market/Sabzi Mandi. The balance of inconvenience is also in favour of the petitioners. The civil revision accordingly is allowed and both the impugned orders are set aside. The respondents are accordingly restrained from interfering with the business of the petitioners/hawkers in the Market/New Sabzi Mandi, Multan, pending the decision of the suit. No orders as to costs. H.B.T./A-506/L Revision allowed.