' M. TABASSUM AFTAB ALVI, J.---The captioned writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby, a direction in the nature of mandamus is solicited against official respondents No,1 to 9, to establish Chemical Examination laboratory for checking drinking milk at capital city Muzaffarabad.
2. The summary of the case is that petitioner is 1st class State Subject who is a practicing Advocate of Azad Jammu and Kashmir Supreme Court and claimed to believe on supremacy of law and justice. The petitioner lives within municipal limits of Muzaffarabad and purchases food commodities from shopkeepers of the city, who told him that they purchase milk from respondent No,10, Qassir Abbasi and No,11, Nasir Mahmood Abbasi. It is maintained that S.S.P., respondent No,6, received many complaints from different quarters of Public Sector about adulteration of drinking milk on account of which the said respondent, obtained reports from SHO. Police Station Sadar and Inspector C.I.A. Muzaffarabad. Both the aforesaid police officers reported that suppliers of milk knowingly sell noxious drinking milk in the urban and city areas of Muzaffarabad, upon which S.S.P, Muzaffarabad, respondent No,6, wrote a letter dated 02.08.2008, to District Magistrate Muzaffarabad, respondent No,4, wherein, by referring police reports, he suggested that under section 144, Cr.P.C. All the sellers and suppliers, who transport and supply injurious drinking milk in the limits of Muzaffarabad, may be restrained. The Additional District Magistrate, respondent No,5, therefore, imposed ban under section 144, Cr.P.C. Restraining all suppliers and sellers of drinking milk vide orders dated 08.08.2008 and 18.10.2008, respectively. It is claimed that Administrator Municipal Corporation, respondent No,7 and Chief Officer Municipal Corporation, respondent No,8, in connivance with private respondents Nos.10 and 11, for ill-gotten gains, greased the palm and consequently respondent No,7, wrote a letter for recalling ban to District Magistrate Muzaffarabad, respondent No,4, on 23.10.2008. After receiving the aforesaid letter from Administrator Municipal Corporation, respondent No,7, District Magistrate, respondent No,4, issued an order recalling ban on 25.10.2008. The private respondents Nos.10 and 11, thereafter, restarted supply of noxious drinking milk. The petitioner approached respondents Nos.4 to 9 for taking action against the said private respondents and demanded to stop the supply of adulterated and noxious drinking milk, who failed to do the needful. The stance of petitioner is that official respondents be directed to establish Chemical Examination Laboratory of drinking milk at Muzaffarabad and without establishing such type of Laboratory, respondents No,10 and 11 or any other supplier who deliver the milk by tankers should be restrained. The petitioner also craved that unless respondents Nos.10 and 11 or any other supplier, who could not obtain certificate from the concerned Laboratory may not be permitted to import drinking milk in limits of Muzaffarabad.
3. The writ petition has been resisted by respondent No,2, through written statement, wherein, it is staled that in ADP of Financial year 2012-13, a scheme for Establishment of Food Testing Laboratories at Municipal Corporations Muzaffarabad, Mirpur and Rawalakot was prepared, however, the same could not be finalized. The contents of petition, however, have not been controverted in the written statement.
4. The official respondents Nos.7 to 9 by filing separate written statement opposed the petition, wherein, it is stated that authenticity of milk which is imported from Rawalpindi Pakistan can be given by the lab, which is not available at Muzaffarabad. It is further stated that the aforesaid respondents have only lactometer, through which in drinking milk only water level can be examined, however, for checking other chemical adulteration relevant Laboratory is essential. The contents of petition have been controverted by the said respondents on all counts and craved for dismissal of writ petition.
5. Syed Hazoor Imam Kazmi, the learned counsel for petitioner strenuously argued that as per section 49 of Local Government Act, 1990, it is basic responsibility of Local Government and Rural Development Department along with Municipal Corporations and Committees to lake necessary measures pertaining to supply of pure milk to the public, without any kind of adulteration, however, the aforesaid Department failed to perform its duties as per law. He further contended that Secretary Local Government time and again furnished his undertaking before this Court for establishment of Milk Testing Laboratory, however, later on failed to act upon his undertaking, therefore, necessary direction may be issued against all the concerned official respondents for the purpose of establishment of Milk Testing Laboratory at capital city Muzaffarabad and craved for acceptance of writ petition.
6. Mr. Ikhlaq Hussain Kiani, the learned Additional Advocate General, however, submitted that Milk Testing Laboratory is falling under the domain of Food Department, therefore, Local Government and Municipal Corporation are not bound under law to establish the same.
The learned Additional Advocate General, however, admitted that there should be a Milk Testing Laboratory at Muzaffarabad for checking milk, however, prayed that for the purpose necessary direction may be issued to Food Department.
7. I have perused the contents of writ petition, examined the appended documents made available and have given my earnest thought to the points raised by the learned Advocates for parties.
8. The present writ petition is filed by petitioner highlighting the menace of growing sales of adulterated and synthetic milk in different parts of capital city Muraffarahad. The petitioner is admittedly resident of District Muzaffarabad, who is practicing Advocate of the Azad Jammu and Kashmir Supreme Court and leading Central Bat Association, as its Senior. Vice President, who has shown serious concern over the sale of adulterated milk in the city. The petitioner solicited implementation of a statute on the subject, hence, can file the instant writ petition for human fundamental rights and for upholding the law, as per rule 3(d) of AJ&K Bar Council (Memorandum of Associations) Rules, 2001.
9. The Local Government and Municipal Corporations throughout the State have practically failed to take effective measures for combating the adulteration of milk with hazardous substance like fill urea, detergent, refined oil, caustic soda, etc. Which adversely affects the consumers' health. The milk is only source of nourishment for infants and a major part of the diet for growing children in tender age and if no effective measures are taken to ensure the purity of milk, health of the children will be adversely affected. The adulterated milk is not only harmful for infants children but also injurious, for youth and adults. The petitioner pleaded on part of official respondents to take appropriate measures to rule out sale and circulation of synthetic milk and its products, which has resulted in violation of basic rights of petitioner and public at large guaranteed under codel provisions of West Pakistan Pure Food Ordinance, 1960 and Local Government Act, 1990.
Adulteration of milk with water is used to increase the volume of milk and brings down the nutritional value, and contaminated water in adulterated milk can cause gastroenteritis and stomach ailments as well. Thus in view of sanctity of the matter, Secretary Local Government and Rural Development Department as well as Secretary Food and Livestock Department, were summoned in Court when following order was passed on 04.05.2012:-- "On Court notice Secretary Food and Live Stock and Secretary Local Government and Rural Development Department appeared in persons. It is stated by Secretary Local Government and Rural Development that so far no any Laboratory has been established 2017] Nasir Masood v.
Azad Government of the State of J&K 867 either by Local Government or by Municipal Corporation for eradication of adulteration in milk. Both the Secretaries admitted that pure milk is not being supplied by the concerned license holders in the city. The Secretary Local Government, however, frankly stated that it is responsibility of Local Government and Rural Development Departments to arrange supply of pure milk and in this regard establishment of Laboratories are necessary. Therefore, Secretary Local Government and Rural Development is hereby directed to establish Laboratories in Capital City Muzaffarabad as soon as possible. The Secretary Food stated that he will also cooperate to Secretary Local Government and Rural Development for doing needful. The Secretary Local Government shall report about progress on next date of hearing. To come up for further proceedings on 04.06.
2012. "
' On 04.06.2012, Secretary, Local Government and Rural Development Department, appraised regarding initial progress of Laboratory and on the aforesaid dated order herein below was passed:-- "Secretary Local Government and Rural Development Department along with Chief Officer Municipal Corporation Muzaffarabad appeared in person and stated that PC-I regarding establishment of the concerned Laboratory has already been initiated which can be finalized within about three months period. The Secretary Local Govt. And Rural Development further stated that for the purpose development projects (Planning & Development Department) has also been consulted. To come up for filing report along with PC-1 positively on 11.09.2012."
' On 11.09.2012, Secretary Local Government advanced regarding sanction of PC-1, when following order was passed:-- "It has been stated by Secretary Local Govt. And Rural Development Deportment who is present in Court along with Municipal Magistrate and Chief Officer Municipal Corporation that relevant PC-1 has been sanctioned by the concerned department i,e, Planning and Development Department AJ&K Muzaffarabad. He further stated that necessary proceedings for installation of Laboratory for eradication of adulteration in milk have been persuaded and needful is hoped within short span of period. The Secretary Local Govt. And Rural Development Department is an uprising officer and perusal of record which has been shown by him in open Court, he is continuously struggling for the purpose who is granted further time.. To come up for further proceedings and placing PC-1 on record on 20.10.2012."
10. It appears that after posting of previous Secretary Local Government and Rural Development Department, needful could not be clone. As per section 49 of Azad Govt. Of the State of Jammu and Kashmir Local Government Act, 1990, it is responsibility of Municipal Committee which is an institution of Local Government and Rural Development Department, to take necessary measures pertaining to supply of pure milk. The aforesaid section speaks as follows:-- "49. Milk Supply.---(1) Except under 'a license granted by the Municipal Committee and in conformity with conditions of such license, no person shall, within the municipality keep milk cattle for the sale of milk, or sell milk or export or import milk for sale or manufacture of butter, ghee, or any other milk or dairy product, nor shall any premises be used for such purpose.
(2) A Municipal Committee may in the prescribed manner, and with the previous sanction of Government form and enforce a milk supply scheme which may among other matters provide for the establishment of milk means colonies, the prohibition of the keeping of milk cattle in the municipality or arty part thereof and the adoption of such other measures as may be necessary for ensuring an adequate, supply of pure milk to the public."
A bare reading of Section 49 makes it abundantly clear that it is legal obligation of Municipal Committee to support the Local Government and Rural Development Department to supply pure milk to the public in municipality. The aforesaid position was admitted by Secretary Local Government and Rural Development Department time and again, however, unfortunately needful could not be done for one or the other reason.
11. As per section 49 read with Fifth Schedule of the Local Government Act, 1990, no person can import or export milk for sale or keep milk cattle within municipality for the sale of milk or sell milk nor can manufacture butter, ghee, or any other milk or dairy without. Obtaining license from the Municipal Committee.
12. The Secretary, Local Government and Rural Development Department, Dr. Mehmood-ul-Hussain, on Court notice, has appeared in person who submitted that he has recently been posted against the aforesaid portfolio and apologized that needful could not be done by his predecessors for the reason that Additional Chief Secretary (General), could not agree on the establishment of Milk Testing Laboratory, on the ground that same fall within the domain of Food Department. However, he stated that after examining basic provisions of sections 48 and 49 of Local Government Act, 1990, it is abundantly clear that matter falls within the domain of Local Government and solicited 03 months' time for the purpose.
13. The petitioner also solicited relief against private respondent No,10, Qassir Abbsi, restraining ban from supply of milk anywhere in the territorial limits of capital city Muzaffarabad. The aforesaid respondent could not be served by office for filing written statement. However, it is stated by petitioner, who is present before the Court, that the instant writ petition was filed on 17th November, 2008, and by now probably the aforesaid respondent is not supplier of milk at Muzaffarabad, hence, he does riot like to solicit any relief against the aforesaid respondent. In view of above, the said respondent shall be treated as deleted from the body of writ petition.
14. The contention of the learned Additional Advocate General, that supply of pure milk to the public and establishment of Milk Testing Laboratory is responsibility of Food Department is against codel provisions reproduced here-in-above, hence, the same is turned down.
15. The crux of above discussion is that by accepting the instant writ petition, the official respondents Nos.1 to 3 and 7 to 9 are hereby directed to establish Milk Testing Laboratory(s), at Capital City Muzaffarabad, within 06 months period. The official respondents No,1 to 9 and 12 to 15 are directed, that no person, shall import, export, sell, peddle, establish malik cattle for the sale of milk, unless and until he shall first have obtained a license so to do from the concerned Municipal Committee/Municipal Corporation. The official respondents Nos.1 to 9 and 12 to 15 are also directed to stop all these persons who import, export, sell or deliver milk and take necessary steps for closing all those dairy shops, milk sale points, dairy farms etc., which are working, without obtaining license from the concerned authorities in the municipality within one month, prior notice. The aforesaid respondents in case of failure shall register cases against the culprits as per West Pakistan Pure Food Ordinance, 1960, duly adapted in Azad Jammu and Kashmir vide Act XI of 1987.
The writ petition is accepted in the manner as indicated herein above with no order as to the costs.