P L D 1962 (W (PLP)

SHABIR AHMAD, J.‑Muhammad Ramzan bought a piece of land situated within the limits of the Municipal Com mittee, Jalalpur Jattan in the District of Gujrat, and started selling vegetables there and in addition let out parts of it for the sale of vegetables by other persons. The Municipal Com mittee being of the view that the private vegetable‑market set up by Muhammad Ramzan could not be used unless a licence under section 64 of the Municipal Administration Ordinance 1960 (to be referred to hereinafter as the Ordinance) had been taken, prosecuted Muhammad Ramzan for an offence under entry 3 to the Second Schedule read with sections 64 and 115 of the Ordinance. Muhammad Ramzan was convicted by the Additional District Magistrate, Gujrat, and sentenced to pay a fine of Rs.

300. He appealed against this order and Mr. Abdullah Jan Mirza, Additional Sessions Judge, Gujranwala at Gujrat, reduced the fine to Rs. 10 and remarked in his judgment that the points raised on behalf of Muhammad Ramzan before him were weighty and had it not been for the fact that Muhammad Ramzan had pleaded guilty, he would probably have set aside the conviction. Muhammad Ramzan presented a revision petition (Criminal Revision No. 942 of 1961) to this Court, which was admitted to a hearing. After his revision petition had been admitted to a hearing, Muhammad Ramzan presented the present writ petition in which he prayed for issue of an appropriate writ so that he may be able to sell his vegetables in the private market which he had set up. As most of the questions of fact that arise in the writ petition and the criminal revision mentioned above are the same, both these matters will be disposed of together by means of this order.

2. Before taking up the questions that arise, I might mention that the petitioner had obtained a licence under the Punjab Agricultural Produce Markets Act, 1939, as amended by Punjab Agricultural Produce Markets (Amendment) Act, 1950, and It was on the strength of that licence that he was selling vegetables in the private market set up by him. The contention raised on behalf of the petitioner was that the licence which had been issued to this client under the Punjab Agricultural Produce Markets Act, 1939, did away with the necessity of the licence contemplated by section 64 of the Municipal Administration Ordinance, 1960, and that, at any rate, as no bye‑laws, as contemplated by section 61 of the Ordinance, had been made by the Municipal Committee, section 64 did not come into play, and not only was the conviction of the petitioner wrong, but the refusal of the Municipal Com mittee to allow the petitioner to use his private market for sale of vegetables was unjustified. The sole respondent in, the writ petition is the Chairman of the Municipal Committee, Jalalpur Jattan, who, in the written statement he put in reply to the allegations made in the writ petition, asserted that the action taken by the Municipal Committee was according to law and, therefore, no occasion for interference by this Court had arisen.

3. Provision of law relevant for the present cases may be reproduced here for facility of reference. The first of these provisions is section 61 of the Ordinance, which reads as follows: ‑ "

61. Bye‑laws for articles of food and drink.‑A Municipal Committee may by bye‑laws‑ (a) prohibit the manufacture, sale or preparation, or the exposure for sale, of any specified article of food or drink in any place or premises not licensed by the Municipal Committee; (b) prohibit the import into the municipality for sale, or the sale, or the hawking for sale, of any specified article of food or drink by person not so licensed ; (c) prohibit the hawking of specified articles of food and drink in such parts of the Municipality as may be specified ; (d) regulate the time and manner of transport within the municipality of any specified article of food or drink ; (e) regulate the grant and withdrawal of licences under this section and the levying of fees therefore ; and (f) provide for the seizure and disposal of and animal, poultry or fish intended for food which is diseased, or any article of food or drink which is noxious." The second provision is section 64 of the Ordinance, which is in the following terms :‑ "

64. Private markets.‑(1) No private market for the sale of articles of food or drink or for the sale of animals shall be established or maintained within a municipality except under a licence granted by the Municipal Committee, and in conformity with the conditions of such licence. (2) Notwithstanding the provisions of subsection (1), the owner of every private market within a municipality for the sale of articles of food or drink or for the sale of animals, maintained immediately before the coming into force of this Ordinance, shall within three months, apply for a licence to the Municipal Committee and until the licence is granted shall continue to maintain the same. (3) A Municipal Committee may levy such fees in respect of private markets as the bye‑laws may provide. (4) If a Municipal Committee is satisfied that in public interest any private market should be discontinued or taken over by the Municipal Committee, it may direct that the market should be discontinued, or that, subject to the pay ment of such compensation as would have been payable if it had been acquired under the Land Acquisition Act, 1894, (IV of 1894) ; the market should be taken over by the Municipal Committee. (5) A Municipal Committee may by notice require the owner of any private market to construct such works, provide such convenience, and make such arrangements for the main tenance of the market, and within such period, as may be specified in the notice." The third provision is section 115 of the Ordinance, which is worded as under: ‑ "

115. Offences.‑Every act or omission specified in the second Schedule shall be an offence under this Ordinance." The fourth provision is entry No. 3 in the second Schedule to the Ordinance which is couched in the following language: ‑ "

3. Doing an act without licence or permission when the doing of such act requires a licence or permission under any of the provisions of this Ordinance, or the rules or bye‑laws."

4. The words used in section 64 of the Ordinance with regard to the necessity of a licence for sale of articles of food and drink or for sale of animals in a private market are extremely clear, and it is hardly open to question that no private market situated within the limits of a Municipal Committee can be used for the sale of articles of food and drink or for sale of animals without a licence from the Committee, and if the petitioner did not already hold a licence issued under the Punjab Agricultural Produce Markets Act, 1939, the correctness of the assertion of the Municipal Committee to the effect that the use of the private market set up by the petitioner was against the law could not have been questioned at all. The question, however, arises whether the necessity of a licence under section 64 of the Ordinance existed, even when a licence had already been issued under another statute. That the Punjab Agricultural Produce Markets Act and the Ordinance deal with entirely different subjects need hardly be mentioned. There is not a single word anywhere in the Ordinance to the effect that a licence issued under the Agricultural Produce Markets Act could be treated as a licence contemplated by section 64 of the Ordinance, and it follows, therefore, that on the basis of express provision of law, it is not open to the petitioner to urge that the licence issued under the Punjab Agricultural Produce Markets Act was valid authority for using the private market dealt with in section 64 of the Ordinance. Learned counsel for the petitioner contended that though the Ordinance did not say that a licence issued under the Punjab Agricultural Produce Markets Act as amended by Act VIII of 1950 was to be treated as a licence contemplated by section 64 of the Ordinance, this could be done under general principles of law. He, however, pointed to no provision of law in support of this contention of his. The two laws deal with two entirely different subjects, and it cannot therefore, be presumed that provisions contained in either of them concerned themselves with the provisions contained in the other. Even if the doctrine of implied repeal were to be deemed to be applicable. I am not to be understood to be saying that it is applicable‑then even the petitioner cannot benefit, because if that doctrine is applied, it will have to be presumed that the provisions of the Ordinance with regard to the necessity of a licence repeal the provisions of the Punjab Agricultural Produce Markets Act on the subject, and the result would be that the licence by reason of the possession of which the petitioner sought immunity from the provisions of section 64 of the Ordinance would be no better than waste paper. It Is true that statutes which seek to control the rights of a subject to Indulge in a trade are to be construed strictly, but the result cannot be that a licence which has been made necessary by a valid law should be deemed not to be necessary because a licence has been obtained under another law which concerned itself with another subject altogether. Consequently, I would hold that the licence granted to the petitioner under the Punjab Agricultural Produce Markets ting Act can be of no avail to him for the purposes of section 64 of the Ordinance.

5. I will now take up the consideration of the contention of the learned counsel for the petitioner and the opinion of the learned Additional Sessions Judge, Gujranwala at Gujrat, of which mention has been made earlier in the judgment, that because no bye‑laws under section 61 of the Ordinance had been made, section 64 of the Ordinance could not come into play as there were no rules regarding the application for licence contemplated by section 64 of the Ordinance, the fees payable for an application and refusal or grant of the licence. Without meaning to lay down that if a statute provides, for the making of bye‑laws, the statute itself cannot be enforced unless the bye‑laws are made, I will proceed on the assumption that in law this‑is the position. The words used in section 61 and section 64 are so different from each other that It does not require the doing of any violence to the language used in the Ordinance for holding that the two sections deal with two entirely different subjects. As I read them, section 61 does not concern itself with sale of articles of food and drink or for sale of animals in a private market alone, while section 64 would become applicable only if there were a private market and in no other case. Section 61 would apply to a single shop, just as it would to a number of shops in a market, be the market public or private, while section 64 cannot apply either to a single shop or to a public market and would come into play only with regard to private markets. Under section 61 of the Ordinance, the Municipal Committee can direct that manufacture, sale or preparation or export for sale of specified articles of food could not be made unless steps to ensure hygienic conditions had bee n taken while the subject dealt with in section 64 is entirely different. Cases can arise in which both sections 61 and 64 will be applicable. For example, the Committee may make rules for the working of shops which deal in meat, and in spite of the fact that that provision was made under section 61, section 64 of the Ordinance will also apply if the shop happens to be in a private market. Section 64 aims at prohibiting the use of private markets without a licence and does not concern itself with matters dealt with in section 61, and it follows, therefore, that the fact that the Committee had made no bye laws under section 61 of Municipal Administration Ordinance cannot matter at all if the application of the provisions of section 64 of the Ordinance comes under consideration. But I might here point out that the learned Additional Sessions Judge was not right in his view that no bye‑laws of the type contemplated in section 61 of the Ordinance existed for the Municipal Committee, Jalalpur Jattan, because such bye‑laws do actually exist. I am referring here to the bye‑laws of this Municipal Committee made under sections 197 and 199 of the Punjab Municipal Act, 1911, which were published in the Punjab Gazette Part I‑A as Notification No. 982 C & T‑51/23075, dated the 20th of April 1951 at page 59 of the gazette. These bye‑laws provide for almost all the matters mentioned in sections 61 and 64 of the Ordinance. The learned Additional Sessions Judge, Gujrat, like the learned counsel for the petitioner, does not appear to have taken into consideration the provisions of section 4 of the Ordinance which is to the effect that any appointment, rules, regulation, or bye‑law made, order or notification issued, tax imposed or asse9sed, contract entered into, suit instituted or action taken under any of the enact ments repealed by the Ordinance shall be deemed to have been made, issued, imposed or assessed, entered into, instituted or taken under it. As the Punjab Municipal Act, 1911, was one of the enactments repealed by the Ordinance, the bye‑laws made in 1951 for the Municipal Committee of Jalalpur Jattan under sections 197 and 199 of the Punjab Municipal Act have to be deemed to be bye‑laws under the relevant provisions of the Ordinance.

6. In view of what I have said above, I would hold that the action of the Municipal Committee in refusing to allow the petitioner to run his private vegetable market was not against the provisions of any relevant law. That the petitioner had set up a private vegetable market without obtaining the licence mentioned in section 64 of the Ordinance was not denied either in the criminal case brought against the petitioner or in this Court in his writ petition, and as this market was sought to be run without a licence mentioned in section 64 of the Ordinance, the conviction of the petitioner with regard to which he brought his criminal revision to this Court was entirely justified as was the assertion of the Municipal Com mittee that the petitioner could not run his private market without obtaining the licence mentioned in section 64 of the Ordinance. Consequently, I find no force either in the writ petition or the criminal revision petition, both of which will stand dismissed. The petitioner shall pay the costs to the respondent in the writ petition. SHAKIRULLAH JAN, J.‑I agree. A. H. Petition dismissed.