' IJAZ UL AHSAN, J.---The petitioner claims to be a cattle market contractor. He had been holding a cattle market at Sari Alamgir some years ago. The cattle market was subsequently shifted to Kharian by the Tehsil Municipal Administration. Since no cattle market was being held at Sarai Alamgir, the petitioner moved an application with the Tehsil Nazim, Tehsil Sarai Alamgir for permission to hold a cattle market on the camping ground under the control of 23 Division, Pakistan Army at Jhelum. In the said application, he stated that in case, the Tehsil Municipal Administration had any objection against holding of the cattle market at the afore-said venue, he should be informed in writing. He further stated that in case, TMA claimed any local dues for holding the cattle market, he was willing to pay the same.
2. The Tehsil Nazim, TMA, Sarai Alamgir vide his response dated 30-1-2009 inter alia informed the petitioner that establishment of cattle market was in the exclusive purview of the Tehsil Municipal Administration and no other department or agency was empowered to allow holding of cattle market. Other reasons including environmental hazard, traffic problems etc. Were also mentioned.
It was also stated that the Government of the Punjab in its instructions, issued vide letter No,SOTAX- 2-252/1997 dated 6-11-2007 had directed that cattle markets would only be held on land owned by TMA, who would provide all requisite facilities, in this regard. For the said reasons, the application of the petitioner was declined.
3. The petitioner moved another application on 19-6-2009 informing respondent .No,1 that he had entered into an agreement with Pakistan Army for lease of camping ground under the control of 23rd Division, Jhelum and sought permission to hold a cattle market on the said camping ground at Sarai Alamgir. Respodnent No,1 gave a detailed response dated 16-7-2009 to the said application, in which four points were mainly highlighted, which are reproduced below for ease of reference:--
(1) To establish cattle market is in the exclusive purview of TMA under Punjab Local Government Ordinance, 2001 and no other department, agency or any other person could establish a cattle market without the permission of the concerned TMA;
(2) The cattle market for Sarai Alamgir had already been approved and established;
(3) No new cattle market could be established within 15 K. Ms from a cattle market already established under the law/rules; and
(4) TMA was going to auction the cattle market established by it and the petitioner was welcome to participate in the open auction to get the contract of cattle market, Sarai Alamgir, if he was interested.
4. On the basis of the above, in addition to other reasons given in letter dated 16-7-2009, permission to establish a new cattle market on the camping ground of Pakistan Army in Sarai Alamgir was again declined.
5. It appears that the petitioner nevertheless proceeded to hold a cattle market on the camping ground on the strength of an agreement allegedly executed between Headquarters 23rd Division Jhelum Cantonment and the petitioner on 18-9-2009. The said agreement purported to grant lease hold rights to the petitioner for a period of ten years (from 18th September, 2009 to 30th August, 2019) on camping ground Sarai Alamgir for establishment of cattle market on Tuesdays and Thursdays every week. The said rights were granted against rent charges, which were required to be paid annually. There were other terms and conditions in the agreement, which are not of significance for the purpose of determining the present controversy. It is, however, worth noting that the agreement was signed by a Lieutenant Colonel, AA&QMG (Gar), (Project Officer, Headquarters 23rd Division.
6. The act of holding a cattle market by the petitioner was resisted by the respondents, who filed a suit for permanent injunction and consequential relief against the petitioner and seven others including signatories of the afore -said lease agreement. The suit was filed on 30-9-2009 before a learned Civil Judge at Gujrat. Notices were issued to the respondents for 2-10-2009. Service was not effected on the defendants other than defendant No,8. The learned civil Court, after hearing the preliminary arguments, found prima facie violation of provisions of the Punjab Local Government Ordinance, 2001. It proceeded to restrain the petitioner from unlawfully holding the disputed cattle market till the next date of hearing.
7. The present petition appears to have been filed on 2nd October, 2009, which came up for hearing before this Court on 5-10-2009. The fact of pendency of suit before the civil Court was not disclosed apparently for the reason that the petitioner had not been served and/or had no knowledge of the same. The respondents have asserted that the petitioner had knowledge of pendency of proceedings and the restraining order passed by the civil Court and approached this Court to defeat the proceedings before the Civil Court.
8. The respondents have appeared in response to notices issued by this Court. They filed an application for recall of the stay order issued by this Court and also filed their written statement.
9. The position taken by the learned counsel for the petitioner is that camping ground on which he is holding the cattle market is under the command and control of Pakistan Army. The Local Government Administration has no jurisdiction over the said area and cannot implement the provisions of the Punjab Local Government Ordinance, 2001 on the same. It is submitted that the cattle market proposed to be established is not within a radius of 15 K.Ms of the cattle market presently existing at Kharian and the respondents have no lawful authority to disallow or restrain holding of the cattle market by him. Reference has been made to section 1(2) of the Punjab Local Government Ordinance, 2001 (PLGO) to asset that PLGO extends to the whole of the Province of Punjab other than the areas notified as cantonments under Cantonments Act, 1924 [or the Cantonments Ordinance, 2002 (CXXX VIII)2002] in relation to the matters covered thereunder. On the said basis, the learned counsel for the petitioner has made an attempt to build an argument that the camping ground, being a cantonment area, is outside the purview of the jurisdictional competence of the respondents. In this regard, reference has also made to section 2(J) of the Works of the Defence Act, 1903. The said section provides a definition of the expression "work" or "work of defence" to mean any defence establishment and includes all naval, dockyards or airfields, runways, an emergency landing ground or any area declared by the Central Government to be a "work" or "work of defence". It has been submitted that camping ground falls within the definition of works of defence which in turn falls in the definition of .Cantonment areas. As such, it is argued that the camping ground in question is a cantonment area governed by the provisions of the Cantonments Act, 1924. Officer Commanding of the concerned cantonment was, therefore, within his rights to enter into contracts for the grant of lease hold rights, and permission for holding the cattle market.
10. The learned counsel for the respondents has raised legal as well as factual objections to the petition. It is submitted that the petition is not maintainable in view of the fact that an efficacious alternate remedy is available to the petitioner by way of an appeal under section 190 of the PLGO.
The said section provides that any person aggrieved of any order passed by a Local Government or its functionaries, in pursuance of this Ordinance or the rules or bylaws made there under, may appeal to such authority in such manner and within such period as may be prescribed. Rule 2 of the Punjab Local Government (Appeals) Provides as follows:-- "Rule 2.--Except as otherwise provided in the Punjab Local Government Ordinance, 2001 or the rules framed thereunder, an appeal from an order from the authority specified in Column 2 to Schedule 1 annexed to these rules shall lie to the authority specified in column 3 thereof."
11. Accordingly, since the petitioner was aggrieved of the orders passed by Tehsil Municipal Administration, an appeal was available with the Secretary, Local Government and Rural Development Department. The said right of appeal was admittedly not availed.
12. The learned counsel has also raised an objection that the income from collection rights of fees duly levied and notified in the gazette in respect of cattle markets cannot be leased out without following the process provided in the PLGO and without an open auctior conducted in a transparent manner. The lease hold rights obtained by the petitioner on the basis of a private agreement between him and HQ 23rd Division, Jhelum, are inoperative against the respondent TMA. The agreement is illegal and does not and cannot confer any legal right on the petitioner to seek enforcement of the same through a constitutional petition. It is further submitted that establishment of a private cattle market without obtaining a license from the concerned TMA is an offence as envisaged under section 141 read with clause D-36 of Part II, 4th Schedule of the PLGO, 2001.
13. The learned counsel for the respondents has also referred to Article 77 of the Constitution of Islamic Republic of Pakistan, 1973. He submits that no tax can be levied except by or under the authority of the Act of Parliament. Reference has been made to section 2 (Act I) PLGO to argue that "Tax" includes any cess, fee, rate, toll or other impost leviable under the Ordinance. In this context, reference has also been made to section 16 of the PLGO to submit that the said section provides a procedure and details of taxes leviable by local councils, which includes vetting of tax proposals by the Government prior to its approval by the concerned council, previous publication of the proposal, hearing public objections etc. In this regard, he has drawn my attention to the 2nd Schedule, Part III of PLGO, which gives a detailed list of taxes and fees leviable by the Tehsil Council.
Item No,2 of the sad part empowers Tehsil Council to recover fee on the sale of animals in cattle markets.
14. The learned counsel also relies on section 195 of PLGO, which grants general powers to the Local Government, details whereof are mentioned in the 6th Schedule. Perusal of 6th Schedule reveals that Item Nos.8, 49, 50, 53 & 54 confer sufficient powers on the Local Council to deal with public and private markets, their licensing and other related matters. Likewise, section 54-A enumerates functions and powers of municipal administration, which includes allocation of areas for cattle fairs and cattle markets.
15. By referring to the afore-said provisions, the learned counsel submits that the subject of setting up, leasing and licensing cattle markets, is exclusively within the domain of the Local Government, which has the exclusive power and jurisdiction to collect fees, tax and other levies on the sale of animals and cattle markets. The learned counsel further submits that the camping ground is not a part of the cantonment area in view of the fact that there is no notification issued by the Federal Government in this regard. The agreement dated 18-9-2009 relied upon by the petitioner is an unlawful agreement, which is not enforceable. Even otherwise, the person signing the agreement was neither authorized nor competent in law to sign and execute the agreement in question. Even otherwise, without prejudice to his earlier stance that the camping ground in question does not fall within the definition of "Cantonment", in terms of section 60 of the Cantonments Ordinance, 2002, it is only within the competence of the Cantonment Board to impose any tax in a cantonment, but such tax can only be imposed with the previous sanction of the Federal Government. He has pointed out that there is no sanction of this nature for imposing any tax, fee or levy on sale purchase of animals and holding of a cattle market. Likewise, the learned counsel points out that powers provided in section 198 of the Cantonments Act, 1924 referred to by the learned counsel for the petitioner can be exercised by a Cantonment Board duly constituted under the law. There is nothing on record to indicate either that there is a board in existence, which has jurisdiction over the camping ground and if at all one is in existence, the agreement in question has been executed under its authority or with its approval. He, therefore, submits that the afore-said agreement is not enforceable, being contrary to express provisions of the law and the petitioner has no legal right to hold the cattle market in question.
16. I have heard the learned counsel for both the parties at length.
17. Section 3 of the Cantonments Act, 1924 defines a Cantonment area as follows:-- "(1) The Federal Government may, by notification in the official gazette, declare any place or places in which any part of the regular forces or the regular air force of Pakistan is quartered or which, being in the vicinity of any such place or places, is or are required for the service of such forces to be a cantonment for the purposes of this Act and of all other enactments for the time being in force, and may, by a like notification, declare that any cantonment shall cease to be a cantonment.
(2) The Federal Government may, by a like notification, define the limits of any cantonment for the afore-said purposes.
(3) When any place is declared a cantonment for the first time, the Federal Government may, until a Board is constituted in accordance with the provisions of this Act, by order make any provision which appears necessary to it either for the administration of the cantonment or for the Constitution of the Board.
(4) The Federal Government may, by notification in the official Gazette, direct that in any place declared a cantonment under subsection (1) the provisions of any enactment relating to self- Government other than this Act shall have effect only to such extent or subject to, such modifications, or that any authority constituted under any such enactment shall exercise authority only to such extent, as may be specified in the notification."
18. There is nothing on record by way of a notification issued by the Federal Government declaring limits of Sarai Alamgir Cantonment showing that the camping ground falls within those limits. The learned counsel for the petitioner despite being repeatedly asked to place any such document on record, has been unable to do so. While the learned counsel relied upon the definition of "work" and "works of defence" as given in section 2(J) of the works of Defence Act, 1903, he has not been able to convince me either that the camping ground falls within the aforesaid definition of works or works of defence and even if it does, by reason of being works of defence, it automatically comes within the definition of "cantonment" and therefore, governed by the provisions of Cantonments Act, 1924. The argument of the learned counsel for the petitioner that the camping ground in question is under the command and control of Army and therefore, should be treated as a cantonment, has not legal basis. The fact that a certain piece of land is in the command and control of the Army for the time being, does not under any provision of law, make it immune from other laws prevalent in the area including laws relating to the Local Government. This position is admitted on behalf of Pakistan Army as is evident from a letter dated 2-8-2006, which is available on the record. It has been written by the Project Officer, Headquarters, Logistic I Corps, Mangla Cantt to Tehsil Nazim, TMA, Kharian that the right to hold the cattle market falls exclusively within the jurisdiction of Local Governments and if at all a cattle market is to be established on a camping ground or some property under the control of Pakistan Army, the same can be done only with the consent and permission of Tehsil Municipal Administration. It is for this reason that a No Objection Certificate was sought by the Headquarters Logistic-I Corps, Mangla Cantt from the Tehsil Nazim, Kharian and the right to hold cattle market in Tehsil Kharian on land under the control of Pakistan Army was allowed to be used to hold a cattle market on terms and conditions mutually agreed between TMA and representative of Pakistan Army. This demolishes the argument of the learned counsel for the petitioner that Pakistan Army has exclusive jurisdiction to hold cattle markets on lands within its command and control.
19. A perusal of the Cantonments Act, 1924 reveals that once an area is notified as a cantonment in terms of section 3, a Cantonment Board is required by law to be constituted. Section 11 ibid provides that every Board shall be a body corporate having perpetual succession with power to acquire and hold property both movable and immovable and to contract and shall by the said name, sue or be sued. In terms of section 13-A, a Board shall consist of the Officer Commanding, a number of elected members and certain nominees of the Federal Government. The learned counsel for the petitioner has not placed on record anything to indicate either that there is a Cantonment Board in Sarai Alamgir or the camping ground in question falls within its jurisdiction. He has failed to produce any document to show that such Cantonment Board has authorized execution of the agreement dated 18-9-2009, on which he relies, or that such a Board has granted any permission to hold a cattle market. He has also been unable to establish through any documentary evidence that the person signing the agreement was authorized by any Board to do so or for that matter had any lawful authority to enter into an agreement of this nature and grant permission to use u camping ground in question for establishment of a cattle market on Tuesdays and Thursdays every week. According to petitioner's own case, he moved two applications, first dated 20-1-2009 and the second dated 19-6-2009 for permission to hold a cattle market on the camping ground.
Both the said applications were turned down by respondent No,1 through orders dated 30-1-2009 and 16-7-2009. If he was aggrieved of the said orders, he had a remedy available to him under section 190 of Punjab Local Government Ordinance, 2001, which he did not avail. Admittedly, the alternate remedy provided in the law is available to the petitioner and in presence of such remedy, direct D recourse to the constitutional jurisdiction of this Court cannot be encouraged.
20. From a perusal of the PLGO, it is apparent that it is the exclusive prerogative of respondent No,1 to establish areas for cattle markets within the territorial jurisdiction of the Municipal Administration, Sarai Alamgir under the provisions of sections 53 and 54 of the Punjab Local Government Ordinance, 2001 and Item 5 of the 2nd Schedule Part II of the said Ordinance. Clauses N and NN of Article 5, 2nd Schedule are clear and unambiguous in respect of powers and functions of Tehsil to establish cattle fairs and cattle markets and the income raised from the said auction is required to be utilized for the welfare of the people of the locality. The rationale is to provide independent sources of income to Local Councils which is a step towards granting limited autonomy in their affairs to Local Governments. In case, the petitioner is allowed to set up and run his own cattle market on the basis of a private arrangement and collect fees, it would amount to sanctioning unlawful collection of tax/fees which is the, exclusive domain in the case of cattle markets, of the local governments. This will lead to chaos ard will close one of the avenues available to local governments to generate funds under the provisions of the Punjab. Local Government Ordinance, 2001. In this regard, Notification No,SOTAX-2-252 of 1997 dated 6-11-2007 is of great significance. It must be given due weight and properly implemented, insofar as nobody, except the Town Municipal Administration, has been authorized and empowered to hold cattle markets within its area of jurisdiction.
21. The learned counsel for the respondent states that TMA, Sarai Alamgir has already purchased land for the purpose of holding cattle market and the auction for collection rights will be held in the next few weeks. He submits that in case the petitioner is interested and inclined to do so, he can participate in the said auction and try his luck in a lawful manner. This statement addresses the argument of the learned counsel for the petitioner that the cattle market of the petitioner does not come within a radius of 15 KM of the existing cattle market at Kharian. In case, the petitioner participates and succeeds in the open bidding for a cattle market, as above, respondent No, 1 will obviously have no objection to grant him rights of collection in accordance with law.
22. I have gone through the judgment of this Court in W.P. No,10727 of 2003. In the said matter, similar questions of law came up for hearing before this Court. A relevant paragraph of the order passed in the said petition is reproduced below:-- "Establishment of cattle market, slaughter houses and organizing cattle markets within the territorial jurisdiction of its Tehsil Municipal Administration are exclusive prerogative of the Tehsil Municipal Administration. Only Tehsil Municipal Administration is empowered to organize a cattle market within its territorial jurisdiction. The Tehsil Municipal Administration is also authorized to grant a licence for the operation of a market. Section 54 PLCO-2001 and Part III of second schedule to the PLGO-2001 clearly provide that function and power of Tehsil Municipal Administration shall be to organize such market. No other person and agency, authority, owner of private land or premises can organize a cattle market and sell cattle within the territorial jurisdiction of Tehsil Municipal Administration."
23. The principle of law and interpretation of statute is clear and unambiguous. I fully agree with the same. Although the questions of the venue of the cattle market being a camping ground, under the command and control of Pakistan Army was not examined in W.P. No,10727 of 2003, but I have recorded my findings on the said issue above, and have arrived at the same conclusion.
24. In view of the above, I hold as follows:--
(i) the signatory of agreement dated 18-9-2009 has no lawful authority to grant lease/permission to hold cattle market at the Camping Grounds situated at Sarae Alamgir on Tuesdays and Thursdays without the consent of TMA Sarae Alamgir;
(ii) on the basis of record produced before me, it is not established that the camping grounds fall within the definition of Cantonment;
(iii) on the basis of material placed on record and examined by this Court, there is nothing to suggest that the camping ground in question is immune from applicability of the provisions of Punjab Local Government Ordinance, 2001 for the purpose of holding cattle markets;
(iv) on the basis of documents and material placed on record and examined by this Court, neither the petitioner nor the Headquarters 23rd Division Jhelum Cantonment have any lawful authority to collect any tax or levy for the sale and purchase of cattle in cattle market, in the jurisdiction of TMA Sari Alamgir.
25. For the foregoing reasons/findings, this petition is found to be without merit. It is accordingly dismissed.