P L D 1973 Lahore 580 (PLP)

SARDAR MUHAMMAD IQBAL, J.

‑The petitioners who are seventy‑eight in number are all Butchers by profession and have filed this petition praying that Memorandum No. BD‑71/ LF/3294/3327, dated the 6th of April 1971 Issued by the Commissioner. Sargodba Division, Sargodha addressed to all the Chairmen/Administrators of Municipal/Town Committees in the Division, whereby he introduced a uniform procedure for the grant and renewal of Beef Licences in his Division, be declared as without lawful authority and of no legal effect.

2. It is contended on behalf of the petitioners that after the repeal of section 43 of the Punjab Laws Act, 1872, under which the Slaughter of Kine Rules were framed providing for the place and sale of beef at shops, by section 8 of the West Pakistan Animal Slaughter Control (Punjab Amendment) Ordi nance (VIII) of 1970, there was no law In existence for the issuance of licences and the Commissioner had issued the impugned Memorandum without any lawful authority. It is further argued that the Government can make rules under section 121, of the Municipal Administration Ordinance, and the Municipal Committee can also frame by‑laws under sec tion 122 of the Ordinance in respect of the matters enumerated in the Fifth Schedule, item No. 25 whereof provides for the licensing of persons authorised to slaughter animals at the slaughter‑houses. But neither the Government has made rules nor the Municipal Committee the by laws.

3. The impugned Memorandum reads as follows :‑

Section 43 of the Punjab Laws Act, 1872 regarding Control over slaughter of kines has been repealed by section 8 of the West Pakistan Animal Slaughter Control (Punjab Amendment) Ordinance, 1970 (Punjab Ordinance No. VIII of 1970) and now the responsibility of exercising control over slaughter of kines and sale of beef devolves on Municipal/Town Com mittee. As you know slaughter of kine and sale of beef is very paying profession and every person irrespective of the fact whether or not he is dependent on this profession and whether he deals with it with his own hand will come forward to get a licence. There is no denying the fact that if licences are granted freely, the cattle wealth of the country, particularly useful cattle, will receive a serious set back and fn order to exercise proper control over this profession some uniform policy should be Introduced. After careful considera tion, the following principle has been laid down for the grant of licences for slaughter of kine and sale of beef in various towns :‑ (i) The application for the grant or renewal of licence will be submitted by the butchers to the Assistant Director, Animal Husbandry of the District, who will forward the same to Chairman/Administrator, Municipal/Town Committee con cerned with such recommendations which the former might consider necessary keeping in view the livestock position of District concerned. (ii) For every 5000 souls in a town, the slaughter of one head of cattle should be permitted per day. (iii) The licence should be valid for one year. (iv) The licence should be non transferable. (v) One animal per day should be slaughtered jointly and shared equally by all those butchers whose names appear on the licence or should take the chance by each butcher turn by turn. (vi) The maximum of kine slaughtered in the Urban areas per day should not exceed one hundred In the district as a whole. (vii) The maximum number of licences should not be issued as a matter of course, and (viii) The licences should be issued in the form of group, keeping in view the livestock position of the district concerned. 2. I am desired to request you that these Instructions should be strictly adhered to. As regards licence fee the Municipal frown Committees should determine reasonable fee which should in no case exceed Rs. 10.00 per calender year. 3. The enclosed from should be used for the grant/renewal of beef licences, to be granted by respective local bodies on the terms and conditions determined by it according to local environment and before granting or renewing a licence the representative of the Animal Husbandry Department should invariably be consulted and his views taken into consideration." 4. We asked the learned counsel for the petitioners whether the Administrator, Municipal Committee, Lyallpur, or the Assistant Director, Animal Husbandry, Lyallpur, has passed any order against the petitioners, or any one of them, under the said Memorandum affecting any of their rights or imposing a liability on them. He was unable to refer to any such order. It appears the petitioners felt alarmed by the Memorandum and feeling apprehensive of some order which might be passed against them, have hurried to this Court. The petition is conspicuous by an absence of reference to any action which the respondents, or any one of them, might have taken under the impugned memorandum against the petitioners or any one of them. In fact, no action whatsoever has so far been taken. The question, therefore, arises whether in these circumstances a petition under Article 98 of the Constitution is competent to challenge the Memorandum Issued by the Commissioner. 5. It is now well‑established that unless some action adversely affecting a person's right or interest is taken under an Act, or Rules, or an instrument, or a Memorandum the Writ Petition cannot be filed to challenge their virus on the mere ground that some action 1n pursuance thereof may at some time in future, be taken against him affecting his rights or imposing a liability on him. The sole function of the Court is to pronounce for or against the litigated right or liability by determination of the .law applicable to the facts. Any one who challenges the vires of a law or the validity of an order must raise a case to show that an action taken in pursuance of the said law or order had adversely affected his rights or interest, or that it would result in the loss of some personal benefit to the curtailment of a privilege to him. In Attorney‑General for Ontario v. Attorney‑General for the Dominion (1896 A C 348) Lord Watson observed : "Their Lordships will now answer briefly, in their order, the other questions submitted by the Governor‑General of Ganda. So far as they can ascertain from the record, these differ from the question which has already been answered In this respect, that they relate to matters which may possibly become litigious in the future but have not as yet given rise to any real and present controversy. Their Lordships must further observe that these questions, being in their nature academic rather than judicial, are better fitted for the consideration of the officers of the Crown than of a Court of Law. The replies to be given to them will necessarily depend upon the: circumstances in which they may arise for decision and these circumstances are in this case left to speculation". In Harkishan Das v. Emperor (A I R 1944 Lah. 33) it was observed, by Muhammad Munir, J. (as he then was) that a Court "cannot enter upon and determine questions of constitutionality unless it is necessary for determining the position of the parties to the litigation and the disposal of the case before the Court." In Province of East Pakistan v. Muhammad Mehdi All Khan (P L D 1959 S C (Pak.) 3871) Muhammad Munir, C. J. observed : "The essential steps of a judicial process are the ascertainment of facts, deter mination of the law applicable to the facts found or admitted, an inference as to the existence or otherwise of a right or obligation from the determination of the law and a decision as to the final order to be made in respect of such right or obligation. Since the ultimate object of such process is the enforcement of aright or obligation, every step of the process has necessary reference to and is limited by that object. It is only when the law applicable to the facts has to be determined the situation with which we are dealing arises, viz., in respect of the right or obligation litigated upon there is a conflict between one law and another, and the Judge has to decide which of the conflicting laws he should follow". His Lordship further explained the position in these words : "And it is a simple deduction from this principle that anyone who challenges the constitutionality of a law must arise a case in the decision of which he has real and personal interest, in the sense that as an individual he would be adversely affected if the law which operates against him is not found and declared to be unconstitutional. He cannot move the Court as pro bono publico or merely as 'taxpayer' unless the constitutionality of the statute which taxes him is itself in question." His Lordship also observed at page 407 of the Report "that the Court does not veto, annul or revise legislation and that its sole function is to pronounce for or against the litigated right or liability by determining the law applicable to the facts though Its decision may have repercussions on a statute or a part of it in respect of future cases. The Courts do not therefore decide abstract, hypothetical or contingent questions or give more declarations in the air. The determination of an abstract question of constitutional law divorced from the concrete facts of a case floats in an atmosphere of unreality ; it is a determination in vacuo and unless it amounts to a decision setting rights and obligations of the parties before the Court it is not an instance of the exercise of judicial power. Moreover, it is only an aggrieved person who can maintains a petition under Article 98, and an aggrieved person as held in Fazal Din v. Lahore Improvement Trust (P L D 1969 S C 223) is one who "discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of soave personal benefit or advantage or the curtailment of a privilege or liberty or franchise". Their Lordships reproduced with approval the observations of Kaikaus, J. in Montgomery Flour & General Mills Ltd. v. Director, Food Purchases (P L D 1957 Lab. 914) where it was observed t "All orders of executive officers are subject to challenge by those affected by the orders, and a person would be 'affected' even if he loses some benefit or advantage which he would have gained if the order was in accordance with law". The High Court, under Article 98 assumes jurisdiction only on a petition moved by an aggrieved person. If it is moved by a person who is not an aggrieved person within the meaning of Article 98, the petition is not competent, and for that reason the High Court has no jurisdiction under the Constitution to take any action suo motu to declare any law or order to be without lawful authority on its own. In Shahnaz Begum v. Hon'ble Judges of the High Court of Sind & Baluchistan (P L D 1971 S C 667) it was observed : "So far as the Constitution of 1962 is concerned the powers of the High Courts are such as have been described under the provisions of Article 98 of the Constitution. They are those which have been conferred on them by the Constitution itself or by any law and apart from them they have no other powers, because, Article 130 of the same Constitution provided that 'no Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law'. Under the 1962 Constitution, a High Court has been given the power of judicial review of executive actions by Article 98 in certain specified circumstances but even in such a case the High Court cannot move auo motu . . . . . . ". It was further emphasized : "it is clear, therefore, that under Article 98, there is no scope for any suo motu action by the High Court. The High Court has also no power of supervision or control over investigation agencies for the power of superintendence which is given by Article 102 of the Constitution is only in respect of all other Courts that are subordinate to it' :" In Doaba Goods Forwarding Agency Ltd. v. Province of Punjab (1971 S C M R 527) it was held : "The High Court's function under Article 98 of the Constitution of 1962 is not to pronounce upon the validity of laws or Notifications, etc., as merely an academic exercise but is only where a person 9s aggrieved, that is to say, adversely affected by such a law that he may invoke the jurisdiction of the High Court and then the High Court would in a concrete case deal with the legal position". It is thus well‑established by authority that the High Court cannot pronoucce upon the validity of laws or Notifications suo motu, or on a petition filed by a person who cannot show that any order has been passed against him under any law, rule or Notification which adversely affects his rights or interests. The law, even if it is unconstitutional or ultra vireo the powers of the Legislature, cannot be declared as invalid so long as the law itself does not directly affect the rights of some body or an order detrimental to the interests of a person is passed in pursuance of such law. 6. On the above view of the matter, since the Writ Petition has been filed by the petitioners to challenge the Memorandum of the Commissioner, Sargodha Division, without shoring that any action has been taken In pursuance thereof against them, or any one of them, which might have adversely affected their rights or interests, they have no locus standi to move this Court under Article 98 of the Constitution of the Islamic Republic of Pakistan, 1962, read with the Provisional Constitution Order, 1969. 7. The petition, at this stage, is not competent. It is dismissed accordingly. A.N.Q./S.A.H. Petition dismissed.