P L D 1961 (W (PLP)

SHABIR AHMAD, J.--‑Khanpur which is a town in District Rahimyar Khan of West Pakistan, has a Municipal Committee created under the Municipal Adminisration Ordinance (X of 1960), (to be hereinafter referred to as the Ordinance), which was promylgated by the President of Pakistan on the 11th of April 1960. Shortly after it came into being, a member of this Municipal Committee presented a resolution that as the brothel of Khanpur is situated in the heart of the town and thereby affects the morals of people, and as a master plan was being prepared as well as a stadium was to be built just opposite, the place where the brothel was situate, the Municipal Committee should under Entry No. 58 of the Second Schedule to the Ordi nance, pass a resolution that no one could indulge in prostitution in the municipal limits of Khanpur. This resolution which was to come into force on the 1st of February 1961 authorized the Chairman of the Committee to take legal action against persons who contravened the resolution. . ' On the basis of this resolution, a public notice was issued, and copies of it were served on the prostitutes carrying on their business in the brothel at Khanpur who were informed that they could not carry on their business of prostitution within the municipal limits of Khanpur it being added that persons contravening this direction, which purpported to have been issued under Entry No. 58 of the Second Schedule to the Ordinance, would be proceeded against under section 115 of the Ordinance. On the 30th of January 1961, Mst. Sakina, who was practising the profession of prostitution in the brothel at Khanpur, presented this petition with a view to obtaining an appropriate writ to counteract the effect of the resolution of the Municipal Committee, on the basis of which notice had been served on her. The written statement put in on behalf of the Municipal Committee, Khanpur, the sole respondent in the petition, said, inter alia that it was necessary to remove the brothel from the town which was extending and was shortly to be given municipal amenities especially a stadium near about the place where the brothel is situate, and that the notice being perfectly valid in law, no writ could be issued to nullify it.

2. The main question that requires determination is whether the resolution of the Municipal Committee, on the basis of which the impugned notice was issued, was valid. As mentioned al ready while the petitioner said that the resolution of the Municipal Committee went beyond the powers conferred on that body, the respondent Committee claimed that it acted entirely within is jurisdiction and the resolution and the notice based thereon could not be challenged on the ground of lack .of jurisdiction. The Committee also pleaded that, in the circumstances of the case, the resolution and the notice based thereon were for the welfare of the citizens of Khanpur and should not be disturbed. It is not necessary for the purposes of the present case to determine whether the action proposed by the respondents Committee is for the welfare of the citizens of Khanpur, because all that the Court is concerned with for determining whether or not a writ should issue is the consideration of the question of jurisdiction of the respondent Committee. If the order of the Municipal Com mittee is without jurisdiction, the fact that it may work' to the benefit of the residents of the town will not clothe it with legality and on‑the other hand the order will be valid if it is allowed by law notwithstanding the fact that it does not benefit the residents of the town, for whose welfare the Municipal Committee was brought into being. I am clear in my mind, therefore, that the only question on which attention should be focussed in the present case is whether or not the law gives the Municipal Com mittee the power to pass the impugned resolution and to issue the impugned notice.

3. Some of the provisions of the Ordinance, to which a reference will be made in tie sequel, are sections 18, 106, 115, 121, Entry No. 58 of the Second Schedule to the Ordinance, which Schedule is headed : . "Offences under the Ordinance," (see section 1 15), and Entry No. 45, of the Fourth Schedule which' is headed : "Matters respecting which Rules may be framed" (see section 121). The above provisions of law read as follows :‑ "

18. Subject to rules, and such directions as the Government may from time to time give, and within the limits of the Funds at its disposal, a Municipal Committee shall undertake such of the functions given in detail in Part IV as are required to be undertaken by Municipal Committee and may under take‑ (a) all or any of the functions so given which may be under taken by a Municipal Committee, and (b) such other functions as are declared by the Government to be appropriate metters for administration by Municipal Committees generally or by any particular Municipal Committee." "

106. A Municipal Committee may, and if so required by the Controlling Authority, shall,‑ (a) establish, manage and maintain welfare homes, asylums, orphanages, widow homes and other institutions for the relief of the distressed ; (b) provide for the burial and burning of paupers found dead within the Municipality at its own expense ; (c) adopt such measures as may be prescribed for the prevention of beggary, prostitution, gambling, taking of injurious drugs and consumption of alcoholic liquor; juvenile delinquency and other social evils ; (d) organize social service volunteers ; (e) adopt such measure as may be prescribed for the pro motion of the welfare of backward classes, families of the persons serving in the Armed Forces, and women and children ; and (f) adopt any other measures likely to promote social welfare." ' "

115. Every Act or omission specified in the Second Schedule shall be an offence under this Ordinance." "121. (1) The Government may make rules to carry on of the purposes of this Ordinance. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters enumerated in the Fourth Schedule, and all matters incidental, consequential and supplemental thereto." Entry "58 of the Second Schedule‑Keeping a brothel or prac tising prostitution in such area as may be declared by the Municipal Committee to be the prohibited area." Entry "45 of the Fourth Schedule.‑(a) The manner in which the welfare aspect of the functions of Municipal Com mittee shall be emphasised. (b) The registration of social service organizations, and the inspection and co‑ordination of such organizations. (c) The framing and implementation of social service schemes. (d) The giving of financial assistance to social service organizations. . (e) The organization of social service volunteers, their training, conduct, discipline, powers and duties. (f) The organization of Social Welfare Department under Municipal Committee, and the definition of the functions and powers of such departments. (g) The appointment of Social Welfare Officers and the prescription‑of their duties and powers. (h) The making of schemes for the relief of persons in dis tress and the enforcement of such schemes. (i) The mitigation and prevention of social evils. (j) All other matters necessary for the promotion of social welfare."

4. The learned counsel for the petitioner contended that the impugned resolution and the impugned notice based thereon aimed at complete stoppage of prostitution within the municipal limits of Khanpur, a subject which he contended fell within clause (e) of section 106 of the Ordinance and, therefore, the Municipal Committee could have taken action only if the Pro vincial Government had made rules with regard to the matter. He pointed out that clause (c) of section 106 made it clear that those measures alone could be or; if the Provincial Government so directs, must be taken by a Municipal Committee created under the Ordinance which had been prescribed and he drew attention to subsection (32) of section 3 of the Ordinance which says that "prescribed" means prescribed by rules made under the Ordinance. Learned counsel for the petitioner asserted that Government had not made any rules for prevention of prostitution and at any rate the respondent Committee had not purported to act on any such rules if they existed, but on its own initiative and for this reason the impugned resolution and the impugned notice which followed it had no validity in the eye of law. If the matter is gov erned by clause (c) of section 106 of the Ordinance, the contention of the learned counsel for the petitioner would not be easy to refute and' one has, therefore, to examine the contention of learned counsel for the petitioner that section 106 of the Ordi nance, and none of its other provisions, had application to the case. Mr. S. M. Zafar, learned counsel for the respondent, who stated the case of his client with his usual thoroughness and clarity, contended that the matter under consideration was not governed by section 106 of the Ordinance but by Entry No. 58 of the Second Schedule to the Ordinance. He argued that Municipal Committees had, by implication, been given the power to stop prostitution even if no rules on the subject be made by the Provincial Government, because if that were not so, Entry No. 58 of the Second Schedule which made it clear that any person who kept a brothel or practised prostitution in such area as had been declared by the Municipal Committee to be a pro hibited area was liable to punishment mentioned in section 115 of the Ordinance, would be meaningless. He pointed out that section 18 of the Ordinance made it clear that it was the duty of Municipal Committees to undertake such of their functions as are detailed in Part IV of the Ordinance and as section 106 of the Ordinance which occurs in Part IV contains a provision to deal with prostitution, the respondent could pass the impugned resolution and issue the impugned notice.

5. Clause (c) of section 106 of the Ordinance and Entry No. 58 of the Second Schedule of the Ordinance are not as irreconcilable as they would at first sight appear to be. As I read it, Entry No. 58 of the Second Schedule, by implication, confers on the Municipal Committee a power to declare that any part of the Municipal Committee was a prohibited area for the purposes of prostitution. The words "stich area" which occurance in Entry No. 58 of the Second Schedule of the Ordinance were, in my view, used in order to limit the powers of the Municipal Committee to disallow the carrying on of prostitution or keeping of brothels in parts of the Municipal area and were not intended to confer on Municipal Committees the power to ban prostitution or keeping of a brothel in the whole area under the jurisdiction of the Municipal Committee. Before the Ordinance the law was to the same general effect as would appear from section 152 of the Punjab Municipal Act, 1911. If this interpretation is placed on the words. used I in Entry No. 53, the provisions contained in clause (c) of section 106 and Entry No. 58 of the Second Schedule will not appear contradicting each other. It is a well accepted canon of interpretation of statutes that Courts are to presume that the law‑giver has used each word with a purpose and the same canon applies when a Court has to interpret the language used in an Ordinance which measure, though it may not receive the same consideration before being brought on the statute book as a measure passed by a Legislature does, has in law the same force and is governed by the same method of interpretation as an Act passed by a legislative body.

6. To a layman it may appear strange that while Entry No. 58 of the Second Schedule of the Ordinance allowed the Municipal Committee to prohibit prostitution in some specified parts of the municipal area under it, the Committee should not be competent to prohibit prostitution in the entire area within its jurisdiction, but there appears to be a purpose in not permitting a Municipal Committee to take measures to abolish prostitution altogether in the area under its control. Many people have described prostitution as the oldest profession in the world and they cannot be said to be wrong. It must be clear to all those of the law‑given who make laws, keeping the circumstances in view and not merely for sentimental reasons, that a law which aimed at abolition of prostitution altogether will defeat its own purpose and will spread immorality, which in places where there are prostituted is mostly confined to the areas where they practise their trade, to a number of other places, and was likely to result in producing prostitutes on a smaller scale but in larger numbers. It was evidently for this reason that the question of complete abolition of prostitution was left to the Government which could make rules for the purpose. It may be that time will come when it would be possible to abolish prostitution altogether‑though I might mention that I consider the abolition of prostitution an impossibility‑but it is clear from the pro visions of the Ordinance, from which the respondent Committee gets its powers, that it has not been left to a Municipal Committee to embark on what may appear to it a laudable purge until the Government has framed rules which aimed at such a purge. Learned counsel for the respondent said that the fact that a Municipal Committee may direct that no one shall practise pros titution within the area under its jurisdiction cannot amount to an order abolishing prostitution because the order of the Muni cipal Committee will have no binding force outside the limits of its jurisdiction, but this contention does not appeal to me. If the intention of the law‑giver 'by enacting Entry No. 58 of the Second Schedule of the Ordinance had been to authorise a Munici pal Committee to give directions for the abolition of prostitution from the whole area in its jurisdiction, the words "such area" which occur in that Entry would not have been used. Another weightly argument against the power which Mr. S. M. Zafar claimed for his client, is the language employed in clause (c) of section 106 of the Ordinance which shows that steps for prevention of prostitution can be taken only if measures in that behalf are prescribed by Government. The language in which clause (c) of section 10,6 of the Ordinance is couched is unambiguous and 'requirements of the clause cannot be overlooked especially as it is only in this clause and clause (e) that it has been provided by the section that measures prescribed for the purposes men tioned therein may be taken by Municipal Committees and such measures shall be taken by them if Government directs them to do that. Entry No. 45 of the Fourth Schedule to the Ordi nance enumerates matters about which rules are to be made by Government and clause (i) of the Entry would clearly apply to such matters as prevention of prostitution or its confinement to certain places only, while Entry No. 58 of the Second Schedule empowers the Municipal Committees to direct that brothels shall not be kept and prostitution shall not be practised in certain area within the boundaries of their jurisdiction. The relevant provisions of the Ordinance make it clear that while the Govern ment was given unlimited powers for combating prostitution the powers of the Municipal Committees for combating the evil were limited to the extent indicated above.

7. In view of what I have said, 1 would issue a writ that the impugned resolution passed by the Municipal Committed, Khanpur, and the notice based on that resolution cannot be enforced by the Municipal Committee and would grant the petitioner her costs of this petition. S. A. MAHMOOD, J.‑I agree. K. B. A.Petition accepted.