P L D 1990 Lahore 269 (PLP)

(xiv) __________________________ (xv) __________________________ (xvi) __________________________ (xvii) __________________________ (xviii) __________________________ D-AGRICULTURAL DEVELOPMENT AND ECONOMIC WELFARE (xix) __________________________ (xx) __________________________ (xxi) __________________________ (xxii) __________________________ (xxiii) __________________________ (xxiv) __________________________ (xxv) PROVISIONS, regulations and maintenance of markets; other than private markets; (xxvi) __________________________ (xxvii) __________________________ (xxviii) __________________________ (xxix) __________________________ (xxx) __________________________ (xxxi) __________________________ (xxxii) __________________________ (xxxiii) __________________________ (xxxiv) __________________________ (xxxv) __________________________ (xxxvi) __________________________ (xxxvii) __________________________ (xxxviii) __________________________ (xxxix) __________________________ (xxxix-a) holding of cattle fairs, shows and markets in the limits of its area in accordance with the bye‑laws: Provided that ' a Zila Council which had been holding cattle fairs, shows and markets in the limits of the local area of an urban local council in the district before 17th January, 1980, may continue holding such cattle shows, fairs and markets in accordance with the bye‑laws: Provided further that a Zila Council shall not hold Bakar Mandis for sale of cattle meant for slaughter in the limits of local area of an urban local council but may hold cattle fairs, shows and markets in such area even after 17th January, 1980, and in that case it shall pay to the concerned urban local council such share of the net income from‑cattle fairs, shows and markets as may be fixed by Government: Provided further that if an urban local council which had been holding cattle shows and fairs before 17th January, 1980, within the limits of its local area continues to hold the same, a Zila Council shall not hold cattle fairs, shows and markets within a radius of three miles of the limits of local area of that local council. (xxxix‑b) compulsory registration of sale of cattle and other animals at cattle fairs and markets." "Section

62. Private markets ‑‑(I) No private market for the sale of articles of food or drink or animals shall be established or maintained within the local area of an urban local council except under a licence granted by the urban local council and in conformity with conditions of such licence. (2) An urban local council may levy fees in respect of private Markets in the prescribed manner. (3) An urban local council may, by notice, require the owner of any private market to construct such works, provide such conveniences and make such arrangements for the maintenance of the market, and within such period as may be specified in the notice."

7. A bare perusal of clause.(xxv) of section 51 would show that private markets have been specifically excluded from the functions, which may be performed by the Zila Council there under. The provisions contained in clauses (xxxix‑a) and (xxxix‑b) of section 51 are not to be read in isolation, but as a whole and along with the other relevant provisions of the Ordinance. The subject of private markets, which includes private cattle markets, is specifically dealt with under section 62 of the Ordinance, which is a self‑contained enactment and does not. in any manner control the right of a private individual to hold private cattle markets in the limits of urban Local Council under a licence granted to him by the Municipal Committee under section 62 of the Ordinance. A is, therefore, difficult to hold that the provisions of section 51 would prevail over the provisions of section 62, in so far as the rights of urban Local Council in regulating the private markets are concerned. It is true that when the legislature has made a special provision for a separate subject, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very dearly. Each enactment is to be construed in that respect according to its own subject‑matter and its own terms. Here the subject of private markets has been specifically excluded from the purview o the functions of the Zila Council and, therefore, by no rule of interpretation, the provisions of section 62 are subordinate to the provisions of section

51. The subject‑matter of both these enactments are clearly defined,. and there is no repugnancy between the two. The Zila Council is empowered to hold cattle fairs/markets within the limits of urban local council, whereas a Municipal Committee can regulate the setting up and maintenance of a private market under a licence. Thus visualized, the rule enshrined in the maxim: Generalia specialibus non derogant relied upon by Syed Zain‑ul‑Abidin; interpreted in the case of Inspector‑General of Police Punjab, Lahore v. Mushtaq Ahmad Warraich and others PLD 1985 SC 159, has no relevance in the context, of the present controversy. The argument that the provisions as contained in section 51 of the Ordinance, create monopoly in the Zila Council to establish cattle fairs/markets, is untenable. If such an interpretation is accepted then the provisions as, contained in section 62 would become redundant.

8. Learned counsel also placed reliance at page i69 of Maxwell on the Interpretation of Statutes and also noticed in WAPDA v. Muhammad Arshad Qureshi 1986 SCMR 18, which reads as under:‑‑ "Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language, or there be something which shows that the attention of the legislature had been turned to the special Act and that the one was intended to embrace the special cases provided for by the previous one, or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general Statute is read as silently excluding from its operation the cases which have been provided for by the special one." It has been earlier pointed out that the subject of private markets has been specifically excluded from the functions of the Zila Council and, there for there is no conflict between sections 51 and 62 of the Ordinance, which can B operate independently. The aforesaid rule of interpretation, therefore, does not help the appellants. It is, therefore, not necessary to dilate further on this point.

9. It is next contended by Syed Zain‑ul‑Abidin and Mr. Abdul Aziz Qureshi that under section 65 of the Ordinance, an urban Local Council may by general or special notice prohibit the keeping and maintaining of cattles by any person in the prohibited Zone and if this provision is read together with Article 32 of the Constitution, which makes it obligatory upon the State to encourage Local Government Institutions, the public amenities shall have priority over the movement of animals and, therefore, private markets should not be allowed to be established. The submission was that even if it is assumed that section 62 empowers a Municipal Committee to grant a licence in respect of a private cattle market, such a provision would be in conflict with Article 32 of the Constitution.

10. The contention is misconceived. The. vires of section 62 of the Ordinance, which provides for regulation of private markets, cannot be tested on the touchstone of Article 32 of the Constitution, which relates to the Principles of r Policy. Under clause (2) of Article 30, the validity of an action or of a law cannot be called in question on the ground that it is not in accordance with the Principles of Policy and no action could lie against the State, any organ or authority of the State by any person on such ground.

11. Syed Zain‑ul‑Abidin and Mr. Abdul Aziz Qureshi further argued that in terms of Article 18 of the Constitution, private markets cannot be established unless and until a place is specifically demarcated for the purpose by the Municipal Committee. ?????

12. The contention is devoid of any force. The place for the establishment of private markets can be maintained at any place within the local area of an urban Local Council under a licence granted by the urban Local Council and. In conformity with the conditions of such licence, as is apparent from the bare perusal of section 62 of the Ordinance. In other words, sale, manufacture or preparation of articles of food at any place not licensed by the Urban Local Council can be prohibited while any person may carry on the sale or manufacture of such articles at any place or premises with permission of the urban Union Council by establishing a private market and in the absence thereof, he ?will not be allowed to carry on his business. Clearly, it will amount to regulation of trade through A licensing system, which would be in conformity with the provisions of Article 18 of the Constitution.

13. Mr. Abdul Aziz Oureshi also argued that unless a licence is issued by the Municipal Committee, the respondents here in, cannot hold private markets within the ambit of section 62 of the Ordinance. In support of his contention, reliance is placed on Muhammad Ramzan v. The Administrator Municipal Committee, Jalalpur Jattan PLD 1962 (WP) Lah. 358.

14. In the precedent case, the petitioner therein started selling vegetables within the limits of Municipal Committee, Jalalpur Jattan in the District of Gujrat. The Municipal Committee took exception to it on the plea that the private vegetable market set up by the petitioner therein could not be used unless a licence under section 64 of the Municipal Administration Ordinance, 1960, had been taken. The petitioner therein was accordingly prosecuted and convicted by a Criminal Court. The matter ultimately came up for consideration before the Division Bench of this Court. The plea raised before the High Court was that the licence, which has been issued under the Punjab Agricultural Produce Markets Act, 1939, did away with the necessity of licence contemplated by section 64 of the Municipal Administration Ordinance, 1960, and that in the absence of any bye?law framed under Section 61 of the said Ordinance, the conviction of the petitioner therein, was bad in law and the refusal of the Municipal Committee, Jalalpur Jattan to allow him to use his private market for the sale of vegetables was unjustified. The contention was repelled by the learned Judges of the Division Bench. It was held that maintaining a licence for a private market was necessary even if bye‑laws contemplated by section 64 of the Municipal Administration Ordinance (No. x of 1900) did not exist, in that, under section 4 of the said Ordinance, the bye‑laws under the repealed Municipal Act (No. III of 1911) were deemed to be bye‑laws under the Ordinance (No. X of 1960). In the instant case, an argument was raised before the learned Single Judge that the writ petitioners therein had not obtained the licences and were running their private markets in contravention of section 62 of the Ordinance and, therefore, the writ petitions should not be allowed, as it would amount to perpetuating an illegality.

15. The learned Single Judge in Chamber, in order to prevent an illegality to continue, gave a direction that the petitioners shall not hold their cattle markets within the limits of Local Council, Pattoke, unless they obtain licence under E section 62 of the Ordinance. The impugned directive is proper in the circumstances, to which no exception could be taken.

16. The other plea taken by Malik Muhammad Nawaz; counsel for Taj Din etc. is that no bye‑laws have been framed by the Municipal Committee, Pattoke, tegulating the establishment of private markets within the limits of Municipality and, therefore, the Municipal Committee cannot prohibit his client from maintaining his private market and doing business therein.

17. The contention has no force. The framing of bye‑laws is not a condition precedent for the issuance of licences under section

62. The mode of granting a licence is laid down in section 172 of the Ordinance, which provides:‑‑ "

172. LICENCES AND SANCTIONS. ‑‑(1) Wherever it is provided in the Ordinance or the rules or bye‑laws that the permission or sanction of a local council shall be necessary to the doing of any act, such permission or sanction shall be in writing. (2) Every licence sanctioned or permission granted by or under the authority of a local council shall be signed by the Chairman or by such official of the local council as may be authorised in this behalf by the local council."

18. The power to make bye‑laws under section 168 of the Ordinance is directory with the Local Council unless so required by the Government to carry out the purposes of ‑the Ordinance or specifically so provided under the Ordinance. It may also be pointed out that under section 168(iii), any regulation made by any Local Council or Municipal Corporation in pursuance of the provisions of the Basic Democracies Order, 1959, or the Municipal Administration Ordinance, 1960 (No. x of 1960), as the case may be, if not inconsistent with the Ordinance, are deemed to continue. The bye‑laws framed under the Punjab Local Government Act, 1975, since repealed, are also saved under section 182(2) of the Ordinance, in so far as they are not inconsistent with the provisions of the Ordinance and are deemed to be made under the Ordinance. It is not canvassed before us that no bye‑laws were ever made by the Municipal Committee under any of the repealed provisions. In any case, even in the absence of any bye‑laws, the writ petitioners are not debarred to approach the Municipal Committee, Pattoke, for the issuance of licence under section 62 of the Ordinance. The ratio laid down in Rashid Ahmad v. The Municipal Board, Kairana AIR (37) 1950 SC 163, relied upon by Malik Muhammad Nawaz, is distinguishable and not attracted to the facts of the present case. In the precedent case, a direction was given by the Municipal Board, Kairana, prohibiting the petitioner therein, from carrying on the trade of wholesale dealer and commission agent of vegetables in violation of bye‑laws. The directive was declared as ultra vires of Article 32 of the Indian Constitution, in that, no bye?laws were in force for the violation of which the directive was issued. In the present case, the existence or non‑existence of bye‑laws for the maintenance of private markets is not relevant, in that, the existence of a bye‑law is not a condition precedent for the issuance of a licence. In view of the above, we rind no merit in the appeals, which are hereby dismissed, but there shall be no order as to costs. M.B.A./T‑92/L?????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.