1979 v L C 668 (PLP)

Sched. 11, para. 1 (a) read with Hyderabad Municipal Committee (Market) Bye-Laws, 1979-Sind Government's Notification dated 28-10-78 providing no market at anyplace other than a particular wholesale fruit and vegetable market to be such market, held, ultra vires-Persons with licences at liberty to carry on business at any place. Small Town. Committee, Ramnagar v. `Firm Muhammad Sadiq-Barkat All P L D 1960 S C 394 ; Nazir Ahmad v. Town Committee, Sahiwal (District Sargodha P L D 1978 Lah. 1438 and Wariam Singh v. Municipal Committee, Natha A I R 1953 Pepsu 127 rel. Muhammad Ali Sayeed for Petitioners. Usman Ghani Rashid, A: G. and Nasim Farooqui for Respondent, Dates of hearing : 23rd and 29th April 1979.

1. MAHMUD, J.-Constitutional Petitions Nos. D-1407 and D-1441 of 1978 may be disposed of by a common judgment as the facts and the question of law raised are the same.

2. The six petitioners in C. P. No. D-1.407/78 and the two petitioners in C. P. No. D-1441/78 had been carrying on business as wholesale dealers in fruit and vegetable in stalls and shops in Navalrai Fruit & Vegetable Market, Hyderabad since several years. This market was originally built by one Navalrai, a Philanthropist of Hyderabad, as a public market. On his migration from Pakistan on Partition as n evacuee, the Peoples Municipal Corporation, Hyderabad, respondent No. 3. took over its man agement and maintenance. It appears that the Municipal Corporation issued allotment orders to the petitioners for shops in the new wing which was constructed as an extension of the Navalrai Fruit Market by the Municipal Corporation for which the allottees were paying licence fees and other charges.

3. In the year 1975, the Municipal Corporation built a new fruit and vegetable market at Hali Road, Hyderabad, to cope up with the overcrowding and congestion in the market and it was decided by the Government, after discussions with the fruit dealers of the old market, that the shops in the new market would be. leased out to them at an open auction. An upset price of Rs. 50,000 was fixed - and the shops were auctioned. However, the petitioners either did not participate in the auction or were unsuccessful. As a number of fruit dealers were apprehensive that the Navalrai Fruit Market would be-abandoned by the Municipal Corporation they filed Writ Petition No. 704/75 against the respondents and a number of new allottees in the new market, challenging the auction of the shops in the Hali Road market and also their threatened eviction from the Navalrai market arid the refusal to renew their licences. The petition was disposed of on' 21-8-1978 on the undertaking of the Advocate-General that the respondents had no intention of ejecting any of the petitioners except in due course of law. On 23rd August 1978, the Government of Sind, respondent No. 1 issued two notifications under sections 2(34) and 92 of the Sind Peoples Local Government Ordinance, 1972 (hereinafter referred to as the Ordinance) purporting to denotify the Navalrai Fruit & Vegetable Market, Hyderabad as such and notifying the new wholesale fruit and vegetable market constructed at Hali Road, Hyderabad as the new public market. The Municipal Corporation thereupon announced through public notices that the wholesale business of fruit and vegetable at Navalrai market would be closed on 13th October 1978 and concerned dealers were informed to shift to the Hali Road Market. The petitioners alleged that the Municipal Corporation had prohibited them from carrying on their business in the city, of Hyderabad except at the new market at Hali Road. Hence the petitioners filed the present petitions to challenge the validity of de-notification of the old market. While these petitions were pending another notification dated 28th October 1978 was issued by the Govern ment under section 2(34) of the said notification in supersession of the notifi cation dated 23rd August 1978 regarding the market at Hali Road, which provided that the Government of Sind was pleased to notify that "ch new wholesale fruit and vegetable market constructed at Hali Road and no market at any other place shall be the wholesale fruit and vegetable market in Hyderabad. Accordingly, the petitions were amended to challenge both notifications dated 23rd August 1978 and 29th October 19713 as being ultra vires and void. The respondents filed no counter-affidavit but the,, produced two additional notifications dated 20th and 21st March 1979 which will be adverted to later.

4. Mr. Muhammadally Saecd, learned counsel for the petitioners, attacked the vires of the two notifications on two-fold grounds. His first submission was that the Ordinance conferred no power on the Government of Sind to denotify the Navalrat Fruit & Vegetable Market as such market or to notify the new wholesale fruit and vcgelable market at Hall Road. The second submission was that equally, the Government had no power to exclude any other place as a wholesale fruit and vegetable market at Hyderabad, where the petitioners and other persons may carry on their wholesale business.

5. On the first submission, counsel referred to section 2(34) of the' Ordinance which defines a market, inter alia, as "any place which may be notified as a market in accordance with the rules", and submitted that in absence of the rules framed by the Government, there was no power t 4 notify or declare a place as a public market. This submission, in our opinion, has no force. It is a well-established principle that where the exercise of power is to be regulated by rules, the absence of rules will not render the exercise of power nugatory, as otherwise by non-framing rules, that Government can render a legislation inoperative. As far as the scheme of the Ordinance is concerned with regard to establishing public markets section 14 authorises the Government to give directions to a Peoples! municipality to undertake the functions given in Part 11 , inter alia, paragraph 4 of the Schedule for establishing and maintaining public markets for the, sale of articles of food and drink and of animals. The places at which such public markets are to be established, may be notified or declared by the Government under section 2(34) of the Ordinance_ and thereupon it rbi11 be the functions of the Peoples Municipality to establish and maintain markets at the places notified. Mr. Usman Ghani Rashid, learned Advocate-General, had produced a recent notification of the Sind Government issued under section 2(34) of the Ordinance dated 20th March 1979 notifying several places by name in the city of Hyderabad, in which public markets may be established by the Hyderabad Municipal Corporation) for the sale articles of food and drink such as, fish, meat, beef, fruit and vegetable and of animals. The place notified for the new wholesale market for fruit and vegetable is "market near Gharib Nawaz Bridge on Hali Road". Pursuant to this notification dated 20th March 1979, the Hyderabad Municipal Corporation had established the market at the places mentioned in the said notification and such markets shall be known as Public Market and it has .so notified by its own Notification No: G/HMC dated 21st March 1979. We are therefore of the view that the notification of the Hall Road Market as a wholesale public market for fruit and vegetable at the place designated is valid. . .

6. It was next contended by Mr. Muhammadally Saeea that no express power to denotify the public markets has been conferred upon the Govern ment by the Ordinance. Counsel referred by way of analogy to section 17.'(1) of the repealed Sind Municipal Boroughs Act, 1925, which expressly em powered the municipality to "open or close" any public market or slaughter house. We are not impressed with this submission of counsel. In accord' and with the general principle of interpretation which has been embodied in section 20 of the West Pakistan General Clauses Act, 1956, the power to make an order includes a power to rescind it. The power to notify must, therefore, be deemed to include the dower to denotify. Circumstances may well exist which, in the opinion of the Government, may justify giving directions to a Peoples municipality to close down or shift a public market if it is in the public interest to do, such as over-congestion, fire or some other cause. It is not a case of the petitioners that the closure of the Navalrai Fruit & Vegetable Market by the Government was not in the public interest or was mala fide. In the case of a private market, even a Peoples Municipality has the power and discretion to discontinue a private market if it is satisfied that it is the public interest to do so, under paragraph 4(4) of the heading "articles of food and drink" contained in Schedule II of the Ordinance.

7. The second submission of Mr. Muhammadally Saeed is that the Government exceeded its powers by excluding every other place in the city for a market for the sale of fruit and vegetable save the Hali Road market, thereby creating an illegal monopoly in favour of the Municipal Corporation in order to augment its revenue through licence fees. By restricting the wholesale business in fruit and vegetable to the Hali Road market, the Government was prohibiting persons from carrying on such business in any other place. Counsel admitted that absolute prohibition to trade in any place other than the one selected by the Government or a Peoples municipality, would be void as against public policy as imposing unreasonable restriction on trade, besides being in excess of the regulatory power contained in paragraphs 1(a) and 4(1) of the heading "Articles of Food and Drink" in Schedule II of the Ordinance. The former paragraph enables a Peoples municipality to frame bye-laws prohibiting the sale of articles of food and drink in any place not licensed by the Peoples municipality. In other words, the sale is to be permissible in any place or premises which may be licensed. Moreover, under paragraph I(e) the grant or withdrawal of licence and the levying of fees therefore are to be regulated by bye-laws. Again, the same is the position with regard to private market under paragraph 4(1), which provides that no private market for the sale of articles of food and drink or of animals shall be established or maintained within.. a municipality except under granted by the Peoples municipality and in conformity with the condition of such licence and on payment of such fees as may be prescribed bye laws. In other words, the sale of these commodities in a private market duly licensed is, therefore, not prohibited. The power conferred on the Peoples municipality by the provisions of the Ordinance are, therefore, merely to regulate the manner of conducting the business in these commodities and the premises or sections of the market in which such business may be conducted. In the guise of regulation, a lawful trade cannot be absolutely forbidden. The Government as controlling authority, has there fore no power to exclusive absolutely a place as a market save that notified by it where the Hyderabad Municipal Corporation may establish a public market for the sale of fruit and vegetable. There is great force in this submission of the counsel and the point is fully supported by several reported cases. Counsel referred to Small Town Committee, Ramnagar v. Firm Muhammad Sadiq-Barkat Ali (P L D 1960 S C 394). In that case, the Small Town Committee, Ramnagar issued a general order (bye-law) under the power vested in it by section 35(p) of the Punjab Small Towns Act, 1922, which provided for licensing of premises for the manufacture and preparation for sale of articles of food ord rink. The general order provided that no person shall sell either wholesale or by auction any fresh fruit or vegetable within the town area of Ramnager at anyplace but the fruit and vegetable market of the Committee for which persons had to pay 6 pies per rupee on sale and purchase prices respectively to the contractor of the fruit and vegetable market appointed by the Town Committee. It was held that the general order was ultra vires of the Act. The Supreme Court observed that under the guise of regulation, lawful sale cannot be forbidden at other premises which may be licensed in the following words :-;; , "The General Order and the action taken subsequently under it, were said to derive their force from clause (p) of section 35 of the Act, which is a regulatory provision, and on the pretence of operating under it, the provision could not be utilized as a measure of self-enrich ment by the Committee. The duty was clearly cast on the Committee to exercise these powers for the public good, in c reasonable measure, consistently with the regulatory functions contemplated by this provision. This was precisely what the Committee precluded itself from doing, by the General Order and the agreement in question. We have, therefore, come to the conclusion that the General Order was ultra vines of the Act and it follows that the action taken by the Committee, in farming out its right to levy fees in the market, was also tainted by the same illegality. On this view, it must be held that the agreement between the ~arties was unenforceable at law."

8. The Supreme Court decision was applied to Aazir Ahmad v, Town Committee, Sahiwal (District Sargodha) (P L D 1976 Lah. 1438). In that case, the Town Committee, Sahiwal passed a Resolution restricting and localizing the wholesale business in fruit and vegetable to a particular place in the Chowk of the Town and also bad raised the amount of lease money. The petitioner had applied for licence to sell fruit and vegetable on wholesale basis in a shop in another part of the town, but it was refused. It was held that the resolu tion was ultra vires the bye-law framed under section 197 of the Punjab Municipal Act, 1911 (which corresponded to para. 1(a) of heading "articles of food and drink" in Schedule 11 of the Ordinance) which provided th4i the Committee may by bye-law prohibit the manufacture, sale or preparation of articles of food or drink in any place or premises not licensed by the Committee. It was held under the bye-law, a person "n carry on wholesale business at any premises, provided licence in relation thereto has been issued by the Municipal Committee. It does not mean that a Municipal Committee can create a monopoly in its own favour by restricting wholesale business of fruit and vegetable etc. to a particular place selected for that purpose and not allowing other persons to carry on such business at other places except the place selected for that purpose Mr. Muhammadally Saeed also cited other cases in particular one from the Indian jurisdiction in Wariam Singh v. Municipal Committee, Nabha (A I R 1953 Pepsu 127), which was also considered and approved in the Lahore decision.

9. The upshot of the above discussion is that the notification of the Sind Government dated 28-10-1978 is ultra vires to the extent that it provide that no market at any place other than the wholesale fruit and vegetable market at Hyderabad. That, however, does not end the matter. We have held that the earlier notification. dated 23-8-1978 denotifying the Navalrar Fruit & Vegetable Market was valid. In this view of the matter, the petitioners have no right to renewal of licences its carry on their business in that market, and the petitioner's prayer cannot be granted. However they are at liberty to carry on their said business at any other place provided they apply and obtain the necessary licenses under the Hyderabad Municipal Corporation (Markets) Bye-Law, 1979 which have been framed by the Hyderabad Municipal Corporation after obtaining the sanction of the Government of Sind and which have been published in the Sind Government Gazette dated 21-3-1979 under Notification No. G/HMC.

10. Mr. Nasim Faruqui, learned counsel for the intervener-respondents, who had purchased in auction some of the stalls in the Hali Road Market, also opposed these petitions on technical grounds. It was contended that some of the petitioners had already availed of an alternate and adequate remedy, namely by filing a Civil suit seeking similar remedy and as such these petitions under Article 199 of the Constitution were not competent Further, these petitions were in effect for enforcing the contractual rights under the licences issued to them for carrying on the business at Navalrai Fruit Market. However, it is not necessary to deal with these technical submissions, as we have decided to dismiss these petitions on merit.

11. In the result, for the foregoing reasons, we find no force in these petitions. They are accordingly dismisses with no order as to costs. Petition dismissed.