' IJAZ AHMED, J.--The facts giving rise to the institution of this constitutional petition as narrated therein are that the Armed Forces of Pakistan owned a piece of land falling in Khasra Nos.2210 2211, 2221, 2222 2223 in Khewat No,2726 measuring 68 Kanals, 07 Marlas situated in Revenue Estate of Pind Sultani, Tehsil Jand, District Attock. Station Head Quarter, Attock, respondent No,5 auctioned the right to hold the cattle market and to receive fee for that commercial activity for 5 years to be held at the said place. The petitioner, being the highest bidder, was issued the work order by respondent No,5.
2. It is alleged that the respondents Nos.l and 2, on the instigation of respondent No,4, were interfering in the lawful commercial activity of the petitioner being carried out under a valid contract with respondent No,5; and that the land in question belongs to the Armed Forces of Pakistan and is so entered in the register Haqdaran-e-Zamin for the years, 2005-2006 (Annexure- C); and that the said area is a Camping Ground and is classified as A-l land (Annexure-B) under Rule 4 of the Cantonments Land Administration Rules, 1937. The learned counsel for the petitioner argues that the ownership of the petitioner has been admitted by the respondents Nos. 1 and 2 in para No,2 of their written reply; and that rule 4 of the Cantonments Land Administration Rules, 1937 provides the classification of land, the land could be used for holding the cattle market, establishment of CNG Station and Marriage Halls etc. The learned counsel for the petitioner stresses that he derives the right from the contract and work order dated 1-2010 issued by the Station Headquarter. He finally argues that under section 3 of the Act, Cantonment includes the places situated in the vicinity where the regular Armed forces are quartered, or are required for the service of such forces; and that under sections 4 and 5 of the Cantonments Act, 1924, any local area of a local council may by notification be included in the territorial limits of a Cantonment.
Thereupon, the area becomes subject to the Cantonments Act and the rules, regulations, bye-laws, issued or made thereunder.
3. On the other hand, the learned counsel appearing for respondents Nos.l and 2 contends that, the agreement or the work order produced along with the petition are of no value. The basic point is the determination of the right of respondents No,5 to utilize the land, which according to his claim is a Camping Ground, for the establishment of a cattle market. It is, contended that under section 54 of the Punjab Local Government Ordinance, holding of cattle markets is one of the functions of TMA.
As per his contention, the area in question falls within the territorial limits of TMA and is owned by the Provincial Government as is apparent from register Haqdaran-e-Zamin (Annexure-C). As per the said document, the Defence Department is possessor in the column of cultivators and Ghulab son of Abdur Rehman is entered as the tenant; and that the agreement deed (Annexure-A) is ambiguous, it does not carry the name, of the lessee. He refers to sub-para, (ii) of Para 2 of the letter dated 19-5-2010 issued from the office of CEO ME Section wherein the name of Contractor has been mentioned as Muhammad Iqbal son of Muhammad Mansoor. In this view of the matter, the present petitioner has no locus standi to institute the instant petition. He further contends that the Station Commander is not an authority to make a decision for holding the cattle market and to award the contract in favour of the petitioner.
4. I have heard the learned counsel for the parties and have also gone through the record.
5. There is no cavil to the fact that the agreement in question is between the Station Head Quarter called lesser and "resident" called the lessee. Such an agreement where second party is unascertained has no legal value. It has to be between two persons competent to enter into agreement. The agreement is devoid of sanction of law. As far the record of rights, the land belongs to the Provincial Government. It is occupied by the armed forces. As per the letter dated 18-4-2007 (Annexure-B) some area in Pind Sultani is the Camping Ground under the Station Head Quarter, Attock and is classified as A-l land. The contention of the petitioner that, under sections 4 and 5 of the Cantonments Act, 1924 when an area is included in the limits of the Cantonment, the area so included becomes subject to this Act and the laws made and orders thereunder, issued has no force. Such an alteration in the limits of a Cantonment entailing the effects narrated above is subject to the condition of the issuance of a notification. No such notification has been issued by the Central Government and published in the official Gazette. No map showing the area in question falling in the territorial limits of the Cantonment is placed on record. So, the contention of the learned counsel for the petitioner is without force and is repelled. Under rule 4 of the Cantonments Land Administration Rules, 1937, the land in the Cantonment is divided into two categories namely;
(i) Class "A" land which is required or reserved for specific Military purposes; and (ii) Class "B" land which is not so required or reserved but which is retained in the Cantonment for the effective discharge of duties of the Central Government in respect of Military Administration. The land which is vested in Board under section 108 of the Act shall be called Class "C" land. Under Rule 5 Class "A"
Land is further divided into two sub-Classes, (i) Class "A" (lj land which is actually used or occupied by the Military for the purposes of fortifications, barracks, stores, arsenals, aerodromes, bungalows for military officers and such like other purposes. This is the category of the land that the learned counsel for the petitioner contends is the land in question. Any area that is specified for a specific purpose or land vested in an authority or local council for a specific purpose which in the instant case is a Camping Ground, cannot be utilized for the purposes that are not associated and have no nexus with the specified purpose. The Armed Forces are taken in high estimation by the people.
Its entering into commercial activities like holding of cattle markets and construction of marriage halls etc. Does not add to their respect, rather it may lead to a reverse direction. Reliance is placed on "2001 CLC 1808" titled (Raza Enterprises v. Assistant Commissioner Bin Qasim. Although Article 18 of the Constitution bestows right of freedom of trade, business or profession on every individual but such a right is not absolute and unfettered and is available so long a trade, profession or business is lawful. Besides the above mentioned restraint of the absolute freedom on trade etc., there is another unwritten restraint. Every person has under the Constitution a right to engage any in lawful business, yet such a person entering into such an engagement may notionally lose some of the privileges and exemptions that are the attribute of his status. The warships and the State ships that enjoy an absolute immunity from the jurisdiction of the littoral State, lose this privilege when they enter into commercial activity.
6. The area even if be owned by respondent No,5; cannot be put to a use of his choice. Since the area has never been notified as Cantonment area and falls under the territorial limits of TMA Attock. The latter can regulate and control its use, even if it exclusively belongs to an individual person or authority. The holding of cattle markets, fairs and funs is a function of TMA, it can regulate and prescribe the limits wherein such activity can be allowed. Under Notification No,SOVI (LG) 5-5- 2002 dated 23-8-2002 new cattle markets will not be established without the prior approval of the Government and the distance between the existing and the proposed cattle market shall not be less than 15 miles. Such a cattle market is already being held at Domel which situates at a distance of 2-1/2 K.M from Find Sultani, the venue of cattle market in question. Now assuming that the land in question falls within the limits of Cantonment Board. Attock, as is reiterated by the learned counsel for the petitioner, the question is whether such a cattle market can be held over there of not.
Section 198 of the Cantonments Act, 1924, deals for the public markets and slaughter houses. The Board could maintain public markets and public slaughter houses, but the purposes and extent for providing such public markets and public slaughter houses has to be interpreted keeping in view the definition of Cantonments as provided under section 3 of the Act. The said section provides that the Central Government may by notification in the official Gazette declare any place, in which any part of the regular forces is quartered or which being in the vicinity of any such places is required for the purposes of such forces to be a Cantonment. The holding of cattle market is neither connected with the quartering of the armed forces nor is required for the services of such forces. Subsection (4) of section 198 of the Cantonments Act, 1924, places an embargo on the power of the Cantonment and gives overriding power to the local council which in the instant case is TMA, in respect of holding of such markets. It reads as under:- "(4) Nothing in this section shall be deemed to authorize the establishment of a public market or public slaughter-house within the limits of any area administered by any local authority other than the [Board] without the permission of such local authority or otherwise than on such conditions as such local authority may approve."
7. Another question that is to be answered is whether holding of cattle market is one of the duties and functions of the local council. The duties, powers and functions of the Cantonment Board are provided under Chapters No,IV, VHI to XIII of Cantonments Act, 1924. None of these Chapters casts a duty on the Cantonment Board to hold the cattle market. Holding of cattle market is not even provided as one of the compulsory functions of the local council. Section 116, that specifically enumerates the duties of the Board, embodies no mention the holding of cattle market. The reading of the Provisions of the Act, and Punjab Local Government Ordinance, 2001 leads me to only one conclusion that .Holding of a cattle market is one of the functions of the TMA. Even it be one of the permissible activities of the Board, the natural corollary would not be that the Board or respondent No,5 must hold the cattle market superseding such a right of TMA whose one of the functions it is.
8. Respondent No,5 or the Board C under section 112 could enter into and perform a contract if it is necessary for the purposes of the Cantonments Act, 1924. Since the holding of the cattle market is neither one of the purposes of the Act nor the awarding of the contract can be said to be necessary in the circumstances, therefore, the only possible conclusion is that the contract in question could neither be entered into between the petitioner and respondent No,5 nor it is executeable.
9. For what has been discussed above, lam obliged to conclude that:-
(a) the land in question is not owned by respondent No, 1:-
(b) Land, even if be owned by the respondent No, 5, he could neither hold the cattle, market nor could allow the petitioner to hold it in view of the embargo placed by subsection (4) of the section 198 of the Cantonments Act, 1924;
(c) That even if the land in question is occupied and specified for the camping ground, it could not be used for holding the public market;
(d) That the promisee/lessee is not specified in the agreement. It cannot be enforced against an imaginary promise. The mentioned agreement is not enforceable and is void;
(e) D E Holding of market is not one of the duties and functions of the Board under the provisions of section 116 of the Cantonments Act, 1924, therefore, under section 112 of the said Act, the board or the respondent No,5 are not competent to enter into or perform the contract in question.
10. Under the Provisions of section 112 read with section 198 referred above, only the Board, if the law would permit, which it does not, would be competent to hold the market or enter into contract and not the respondent No,5 by any stretch of imagination.
11. For what has been discussed above, the petitioner is held disentitled under the contract or the provisions of law to hold the cattle market. This petition stands dismissed. C.M.No,1411 of 2010.
' This is an application under Order I rule 10 C.P.C. The applicant prays for being impleaded as respondent in the main petition. I do not consider the applicant as a necessary party. The proper adjudication of the matter does not require the inclusion of the name in the array of the respondents. This C.M.A, stands dismissed.