' This petition has been filed to challenge a notice issued by the Administrator, Municipal Corporation under section 69 of the Punjab Local Government Act, 1975 directing the removal of cattle from those places which have been declared as prohibited area. The petitioner who keep much cattle within the area which is now prohibited and sells milk, claims to be the President of the Cattle Owners Association. He has challenged the order of removal of the cattle on the ground that no such removal can be ordered without providing the cattle owners with at least a site for the colony under subsection (3) of section 69.
2. This appears to be a third attempt of removal of the cattle from the Municipal area or a part of that area. The first attempt was made in the year 1957 by resorting to section 144, Cr. P. C. And section 5 (1) of the Punjab Public Safety Act. A writ petition was filed by Ch. Amir Ahmad against the order, which was allowed by a Division Bench of the High Court vide PLD 1957 Lah.
757. Both the Judges agreed with the argument that section 5 of the Punjab Public Safety Act did not contemplate passing of a general order against unspecified persons. Shabir Ahmad, J.
However in a short note added that "if hardship to the person hit by the order were a relevant consideration I would have held the order of the District Magistrate to be invalid, because without making adequate arrangements for cattle sheds, etc. The authorities wanted cattle owners, who fail to obtain permits to keep their cattle in the areas to which the order was made applicable to shift to a place at a distance of about six miles from Lahore." The gujjar colony provided by the City of Lahore Corporation on the Harike Road as existed at that time was not suitable for accommodating the animals.
3. The second attempt was made under M. L. R. No, 118 issued by the Martial Law Administrator, Zone B. The Commissioner, Lahore Division, Lahore notified that keeping or possessing of milch cattle without permit in any area within the limits of Lahore Municipal Corporation is unlawful and strictly prohibited. The Commissioner, therefore, ordered that the milch cattle kept in areas within the Corporation shall be removed outside the Corporation limits according to the schedule of evacuation attached to the order. The High Court dismissed the writ petition against this order on the ground that M. L.
0. No, 118 had not lapsed and had been kept alive by Ordinance 21 of 1962. It was also held that the validity of the Ordinance could not be challenged on the ground of repugnancy with Article 225 of the Constitution of 1962. On appeal the Supreme Court held that the M. L.
0. No, 118 was not of any legal effect and gave no valid authority to the Commissioner to issue the order impugned before the High Court. It was further held that even if M. L.
0. No, 118 had been competently made and lawfully continued in force it did not give the Commissioner any power to issue the directions sought to be challenged before their Lordships.
According to their Lordships the power given by the M. L.
0. No, 118 was a power of regulating the keeping of cattle under a permit within the prescribed zones and not a power to prohibit altogether the keeping of cattle by any person who sold milk as a means of livelihood. The Commissioner was, therefore, held to have acted in excess of the powers given to him by the said M. L.
0.
4. The Punjab Local Government Act, 1975, has now vested the respondent with such a power of creating a prohibited Zone for the keeping of the cattle and also to fix time limit for removal of the cattle from the prohibited zone. The definition of 'prohibited zone' in section 3 (39) of the Act allows the declaration of a prohibited zone by a public notice for the purpose of section 69 which is reproduced below :- "Prohibition against keeping and maintaining cattle.--(1) Notwithstanding anything to the contrary contained in any other law or any agreement, instrument, custom or usage or decree, judgment or order of any Court or other authority-
(a) no person shall, after the expiry of the period allowed under subsection (2) keep or maintain cattle in any part of prohibited zone : ' Provided that the prohibition shall not apply to-
(i) cattle kept bona fide for sacrificial purposes :
(ii) cattle kept for drawing carts or use in mills ; with the permission of the Municipal Committee and subject to such conditions as it may impose :
(iii) cattle under treatment in any veterinary hospital ;
(iv) cattle brought to a cattle market demarcated by the Municipal Committee for the purpose of sale ; and
(v) cattle brought to slaughter house or kept by butchers for the purpose of slaughter within the area demarcated by the Municipal Committee :
(b) no person shall, within the limits of Municipal Committee keep, tether, stall, feed or graze any cattle on any road, street or thoroughfare or in any public place.
(2) The Municipal Committee may, by a general specific or order, direct that any person in charge of cattle shall remove the cattle from the prohibited zone within such period as may be specified,
(3) Persons affected by the prohibition order under subsection (1)(a) to ' meet their genuine needs, may be allowed to keep and maintain their cattle at the place earmarked as "Cattle Colonies" by the Municipal Committee on such terms and conditions as it may impose."
5. The respondent declared the prohibited zone against keeping and Maintaining cattle within the limits of the Lahore Municipal Corporation and published a notice in The Pakistan Times dated 28th April, 1979, This notice is as follows :-- "In exercise of the powers vested under section 69 of the Punjab Local Government Act, 1975, I, Mumtaz Ali Major-General (Retd.) Administrator Lahore Municipal Corporation, do hereby declare the following areas within the limits of the said Corporation as Prohibited Zone.
' From Ravi Bridge to Rivulet Ravi Railway Line, Rivulet and Small Railway Bridge on the River Ravi to Bhama Road to Bund Road via Bund Road upto Kot Khawaja Saeed, Kot Khawaja Saeed to Ghore Shah Road, Ghore Shah Road to Haq Nawaz Road, Old Abadi Baghbanpura up to the wall of Shalimar Garden (including the area up to new locality of Baghbanpura), G. T. Road to Shalamar Sukh Nallah on the north ; ' Shalamar Sukh Nallah from G. T. Road to Amritsar Railway Line, from Amritsar Railway Line to Moghalpura Railway Station within the Municipal limits up to Mianmir Station and from Mianmir Railway Station up to Railway crossing Amar Siddhu on the east ; ' From Ferozepur Road starting with Amar Siddhu Railway Crossing upto the boundary of Model Town via Ferozepur Road, Southern Model Town and road on the West, leading from Model Town West side to -Punjab University New Campus Bridge, Road leading from Punjab University New Campus Bridge upto Wandat Colony, and Wandat Colony Road upto Multan Road on the South and from Multan upto Chowk Yateem Khana, along Bund Road from Chowk Yateem Khana up to Ravi Railway Bridge on the West: ' The demarcation of the aforementioned prohibited zone by meets and bounds has been more precisely and elaborately made in the plan prepared for this purpose which can be seen during office hours on any working day from the office of the Taxation Officer, Lahore Municipal Corporation, Jinnah Hall, Lahore."
6. In pursuance of this notice a direction to all persons incharge of cattle from the prohibited zone was published in The Pakistan Times dated 9th May, 1979 to the following effect : "In pursuance of the public notice issued under section 69 of the Punjab Local Government Act, 1975, it is hereby directed that any person incharge of cattle shall remove the cattle from the prohibited zone declared vide public notice dated 28th April, 1979 published in daily Pakistan Times, Daily Nawa-i-Waqt, Daily Afaq, and Daily Sadaqat newspapers within a period of two months from the date of publication of this order. This order shall apply to Cows, Buffaloes, Bulls, Oxen, Bullocks, Heifers, Calves, Camels, Sheep and Goats.
' The prohibition against keeping and maintaining cattle and for their removal from out of the prohibited zone shall not apply to :
(i) Cattle kept bona fide for sacrificial purpose ;
(ii) Cattle kept for drawing carts or used in mills with the permission of the Municipal Committee and subject to such conditions as it may impose ;
(iii) Cattle under treatment in any veterinary hospital :
(iv) Cattle brought to a cattle market demarcated by the Municipal Committee for the purpose of sale ; and
(v) Cattle brought to a slaughter house or, kept by butchers for the purpose of slaughter within the area demarcated by the Municipal Corporation, Lahore."
7. Various posters were also published to inform the cattle owners that they should remove the cattle within two months i. e. Upto the 8th of July 1979.
8. It may be stated that the prohibited zone is only a part of the Municipal limits of the Lahore Municipal Corporation and the prohibition is not only against keeping of milch cattle in the prohibited zone but against the keeping of bulls, oxen, bullocks, heifers, calves, camels, sheep and goats also.
9. The learned counsel for the petitioner relied upon Ch. Amir Ahmad v. District Magistrate (1) and argued that in view of the observation of Shabir Ahmad, J. In that case the cattle cannot be directed to be removed from the prohibited zone without the setting up of a colony for Gujjars. It may be stated that in the written statement filed by the respondent it was stated that the Lahore Development Authority had submitted a plan for a cattle colony at the cost of Rupees forty millions (four crore) for accommodating seven thousand animals but since the cattle population of the Lahore was at least one lac, construction of a cattle colony would entail an expenses of Rs, 600 millions (sixty crore). On this the petitioner maintained that the milch cattle owners were not asking the Government to spend such a huge amount on the shifting of the cattle and they would be satisfied if some area was earmarked/acquired for them so that they could themselves establish a cattle colony there at their own expenses. By an order dated 7th July 1979 the Court directed the Advocate-General to bring this aspect of the matter to the notice of the Punjab Government and to find its reaction. On the 9th of July 1979 the Advocate-General informed the Court that the Government did not consider it feasible to establish a cattle colony' as contemplated in section 69(3) of the Punjab Local Government Act, 1975.
10. The learned counsel for the petitioner, therefore, argued (i) that section 69(3) which authorises the Corporation to set up a cattle colony to fulfil the need of the persons affected by the order of the removal of the cattle being for the benefit of the cattle owners, it should be treated to (1) PLD 1957 Lah. 757 be mandatory and the order of removal can be made only subject to the setting up of such a colony; (ii) that the impugned order affects the cattle owners and that order could not be passed without serving a show-cause notice upon them ; and (iii) that the Corporation was under an obligation to act fairly and justly and not oppressively.
11. The learned counsel in his argument on the first point submitted that powers under subsection
(2) of section 69 were coupled with a duty as envisaged in subsection (3). According to him the word 'may' in subsection (3) should be construed as being mandatory and it would, therefore, be necessary for the respondent to at least earmark places as a cattle colonies and give them over to the cattle owners on payment of price or on lease in short, on such terms and conditions as it may impose. The learned counsel relied upon Alcock Ashdown and Company Limited v. The Chief Revenue Authority, Bombay (1), Maxwell Interpretation of Statutes (Twelfth Edition) page 234, Craies on Statute Law page 516, Wali Mohammad v. The State and others (2) and Muhammad Saleh v. The Chief Settlement Commissioner, Lahore and 2 others (3).
12. The principle as laid down in Maxwell's Interpretation of Statute Law is that in ordinary usage, "may" is permissive and "must" is imperative, and, in accordance with such usage, the word "may" in a statute will not generally be held to be mandatory. In some cases, how-A ever, it has been held that expressions such as "may" or "shall have power" or "shall be lawful" have to say the least a compulsory force, and so their meaning has been modified by judicial exposition. According to the Privy Council authority also the word "may" some time may have a compulsory force. In Wall Mohd.'s case the matter was dealt with in some detail. It was held that if the dictum of the case of Julius v. Bishop of Oxford (4) is applied on of the most essential prerequisites of converting discretion into a duty to be performed on mere application would be that the applicant must have a right to the performance of the "duty" by the public functionary. On the facts of the case it was held that the power to renew grants was discretionary with the Collector. In Muhammad Saleh v.
The Chief Settlement Commissioner (5), it was held that the word "may" does not necessarily suggest a recommendatory directive. The word "may" and "shall" in legal phraseology are interchangeable, depending on the context in which they are used, and are not be interpreted with the rigidity which is attributed to them in ordinary parlance.
13. The question is whether in the context of the provisions of subsections (1) and (2) of section 69 the word 'may' in subsection (3) can be read as being mandatory in nature or as conferring a right to earmarking of colonies for the owners of cattle affected by the order.
14. After considering the language of subsection (1) I must answer this question in the negative.
Subsection (3) does not use only the word `may'. It says that persons affected by the prohibition order under subsection (1) (a) to meet their genuine needs, may be allowed to keep and:
(1) AIR 1923 P C 138
(3) PLD 1972 SC 326
(4) 5 A C 214
(5) PLD 1972 SC 326 ' maintain their cattle at the places earmarked as "Cattle Colonies" by the Municipal Committee on such terms and conditions as it may impose. The words "may be allowed" are clearly directory. If the intention of the Legislature was to use the word 'may' as not simple directory but mandatory, nothing would have been easier than to add in clause (a) of subsection (1) the words "and subject to the provisions of subsection (3)" after the word subsection (2). In that case the clause would have read that "no person shall, after the expiry of the period allowed under subsection (2)" and subject to the provisions of subsection (3) "keep or maintain cattle in any part of prohibited zone."
15. Learned counsel for the respondent argued that the Legislature was conscious of the judgments in Ch. Amir Ahmed v. District Magistrate Lahore and Mohammad Afzal v. Commissioner, Lahore Division (1). It was also conscious of the observation of Shabbir Ahmad, J. In Chaudhry Amir Ahmad's case. It is for this reason that in the first subsection a non obstante clause is added, "notwithstanding anything to the contrary contained in any other law or any agreement, instrument, custom or usage or decree, judgment or order of any Court or other authority."
16. Although the observation by Shabir Ahmad, J. Was not a finding but was merely a wish expressed subject to the condition that consideration of hardships was a relevant consideration, I agree with the argument of the learned counsel that the non obstante clause referred to above must be deemed to have been added for this reason so that this observation may not have any legal force. If this be the correct interpretation, the provisions of subsection (3) would not be mandatory in nature,
17. There was provision in section 68 of the Municipal Administration Ordinance, 1960 which was analogous to section 69(3) of the Act of 1975 and authorised the Municipal Committee with the previous approval of the Controlling Authority to establish and maintain animal homes, where subject to such terms and conditions and on the payment of such fees and other charges, as the by-laws may provide, the animals of private persons may be kept. The provisions of section 69(3) is virtually are petition of section 68 of the above Ordinance. If the provisions of section 68 was directory as it undoubtedly was, the provisions of subsection (3) of section 69 should also be held to be directory. I, therefore, agree with the argument of the learned Advocate-General and learned counsel for the respondent that the setting up a prohibited zone and passing an order of removal of the cattle from that zone are not subject to earmarking of a cattle colony or setting up of any such colony.
18. The argument about the obligation of the respondent to act fairly and justly is unexceptionable but if the order is an accordance with law, it cannot be set aside unless it is mala fide. In the present case I am satisfied that the order cannot be held to be actuated with any bad faith. The reason for passing this order has been explained in para. 3 of the written statement to the following effect :-- "Presently 90 to 95% of the milk supply requirement of Lahore city is actually being made from the suburban villages and farms. Only 5 to 10% of the milk is being supply by the mulch cattle residing in Lahore. For this small percentage of requirement the (1) PLD 1963 SC 401 drawbacks which the citizens are to suffer are tremendous. About 2,200 tons of garbage, of which cattle contribute 40 to 50% has to be lifted daily from out of L.M.C. Limits. There are hazards of health, sanitation, traffic etc."
19. The argument about the necessity of any notice is also without: any merit. Such a notice is not contemplated by the law. The provisions of section 69 override anything contained in any other law, custom, usage or even judgment or order of any Court. Law will thus include the law declared by superior Courts also. That this is so is borne out by the use of E the words judgment or order of any Court in this non obstante clause. The provision of the Act to create a prohibited zone and to remove the cattle from there is not subject to the issuance of show-cause notice in favour of which the law is declared by the superior Courts by judgments. In fact the removal of the cattle is a matter of general policy which may not allow of any exception. Moreover the order of removal was published in the Daily Pakistan Times on 9th May, 1979. Two months time was given but it is very strange and this is admitted that no representation in writing was made on behalf of the cattle owners nor any appeal under section 219 of the Punjab Local Government Act, 1975 was fielded which means that they were also sure that the respondent meant business and would make no alteration in the policy. No benefit would accrue to the petitioner or the other cattle owners by the issuance of a show-cause notice particularly when all the exceptions to the prohibition afforded by section 69 are given by the respondent in his order of removal of the cattle.
20. I find no merit in this petition and dismiss it. However, the parties are left to bear their own costs.