QAISER RASHID KHAN, J. Through the petition in hand, the petitioner has prayed as under :- Set aside the impugned letter No.560/TMA/KT dated 24th October , 2019 issued by respondent No.1 and declare it as illegal, unlawful, unauthorized, null and void; Direct respondent No.1 to issue gazette notification of the amended byelaws as approved by the Tehsil Council in its session dated 1st January , 2019, and to implement the resolution by the Tehsil Council in letter and spirit; Direct respondent No.1 to issue license to the petitioner as per direction of the Tehsil Council in its resolution dated 1St January 2019, and declare that the petitioner has complied with the terms and conditions of the license as read with the amended Market byelaws; Restrain respondents No.1 to 4 from taking any adverse action against the petitioner or against closure of the petitioner's fruit and vegetable market / Mandi; and Grant any other such relief as may be deemed fit and necessary by the Honourable Court.
2. As per the averments made in the petition, the petitioner is a businessman and is running various businesses at Kohat. In the year 2009, he intended to construct a market for the purpose of sale / purchase of the fruits & vegetables on his privately owned land situated at Kohat Bypass Road, on the insistence of a good number of traders / arthis as they were not satisfied with the decision of shifting of the old Fruits and Vegetables Mandi to another place and the petitioner thus, presented a building plan `Naqsha' to the respondent No.1 way back in the year 2009 for approval and simultaneous ly, started construction of shops / stores at his site under the scheme of the NWFP Local Government Ordinance, 2001. On failure of the respondent No.1 to respond to such request of the petitioner , he approached the learned civil court Kohat and in the light of the pronouncements of the lower courts dated 23.2.2009 and 13.8.2009, respectively and maintained by this court vide judgment and order dated 4.9.2009, the map of the market was deemed approved under Para-27 of the 6th Schedule of the Local Government Ordinance, 2001. Thereafter , the petitioner applied for the grant of License to operate the Sabzi Mandi under section 195 read with para-54 of VI Schedule of the NWFP Local Government Ordinance 2001 for the establishment of Fruit and Vegetable market at the already constructed market. However , it was turned down by the respondent No.1 mainly on the ground that there could not be another Fruit and Vegetable Market in Kohat in addition to the one already established by the respondent No.1. The petitioner then filed several appeals including to the Secretary Local Government, KPK but in vain and then approached this court through a WP No.1585/201 1 which was accepted on 20.09.2012 and the respondents were directed to grant license to the petitioner to establish a private Fruit and Vegetable Market in terms of section 54 of the 6th Schedule of the Local Government Ordinance 2001 which was in turn challenged by the respondents before the august Apex Court through CP No.1676/2012 but was dismissed vide judgment and order dated 30.01.2013. The petitioner as well as the traders / arthis then invested a huge amount on the site so as to establish their shops and despite the clear cut directions of this court as well as the august Supreme Court, still the respondent No.1 kept the matter pending for almost three years, which prompted the petitioner to file a contempt petition before this court bearing No.283-P/2014. Pursuant to the directions of this court, the respondent No.1 issued a license to the petitioner for the establishment of a Fruit & Vegetable Market under the "Market Bye-Laws" known as Tehsil Municipal Administration, Kohat Market Bye-Laws 2015 duly approved by the Tehsil Council Kohat vide resolution No.1 in its meeting held on 18.09.2015, for a period of one year commencing from 1.11.2015 to 31.10.2016 vide its letter dated 3.11.2015 subject to fulfillment of certain terms and conditions mentioned in the license. Aggrieved from certain terms and conditions laid down in the license, the petitioner approached the respondent No.6 but instead, the TMO, Kohat cancelled the license of the petitioner with immediate effect vide his letter dated 25.3.2016, which was challenged by the petitioner through a WP No.1471/2016. The same was allow ed on 18.10.2017 to the extent whereby the license was directed to be extended till 30.6.2018 and simultaneously the petitioner was directed to remove the defects as per the terms and conditions mentioned in the license dated 3.11.2015. However , the respondent No.1 issued another letter with certain terms and conditions on 4.1.2018 by adding two more conditions. Accord ingly, the petitioner submitted a fresh building plan of the market in line with the Kohat Municipal (Erection and Re-erection) Building Byelaws 1999 to the respondent No.1 coupled with fresh NOCs from different departments as per the terms and conditions of the License as well as scrutiny fee and license fee but once again, the license of the petitioner was cancelled without giving any advance notice vide letter dated 29.6.2018, specifying therein the following short comings:-
(1) The non-encumbrance certificate annexed with Revenue documents (Fards) neither shows/verifies the required area of the land and also differs the area as shown in the site plan submitted nor duly verified by the District Collector , Kohat as mandatory .
(2) As per the report of Technical Wing TMA Kohat, the site plan of the market has certain discrepancies / contradictions with regard to the Building Byelaws of TMA Kohat that are also mandatory to be removed / rectified.
The petitioner being aggrieved of the ibid letter dated 29.6.2018 assailed the same through WP No.3422- P/2018 and during the pendency of the petition, some traders / arthis of the Kohat Government owned fruit and vegetable Market filed an application for their impleadment, which was accepted and accordingly , they were impleaded in the writ petition. During the pendency of the aforesaid writ petition, the arthis / traders who were conducting their business in the petitioner's market approa ched the Tehsil Council for a resolution in respect of their dispute with the respondent No.1 and accordingly , the Tehsil Council during its session dated 24.9.2018 took cognizance of the matter and formed a committee comprising of Tehsil Council members for their recommendations vide Resolution No.7 and accordingly , the committee subm itted their report. Keeping in view the report of the committee, the Tehsil Council in its session dated 1.1.2019 approved certain amendments in the Market Byelaws and also issued directions to the respondent No.1 to grant a license to the petitioner's Mandi. As per the amended Byelaws, the legal conditions as well as the applicable law for the grant of license has been set out under the amended Market Byelaws. In the meanwhile, the writ petition WP No.3422-P/2018 of the petitioner was also disposed of vide judgment and order dated 25.9.2019 in the following terms:- We have heard learned counsel for the parties in light of available record and finally with consent of learned counsel for the parties, dispose of the instant writ petition in terms that petitione r shall approach the concerned competent authority for renewal / extension / grant of license through proper channel by applying through prescribed application and before filing the application, shall fulfill all the requisite legal conditions for grant of license of Tehsil business in the already established vegetable market.
Accordingly , the petitioner in response to the letter of the respondent No.1 dated 29.6.2018, submitted the requisite documents including the Building Plan duly rectified, copies of the fresh departmental NOCs, land revenue documents, etc vide letter dated 8.10.2019 to the respondent No.1. The respondent No.1 still issued another letter dated 7.10.2019 whereby the petitioner was directed to fulfill certain terms and conditions for the grant of a license within seven days which was contrary to the earlier letter dated 29.6.2018 wherein only two shortcomings were directed to be fulfilled by the petitioner . The said letter was replied to by the petition er vide letter dated 12.10.2019, which was not responded by the respondent No.1 but called the petitioner for personal hearing where he expressed his stance but the respondent No.1 regretted the grant of license to the petitioner vide impugned letter dated 24.10.2019 with further directions to close the market within three days and that is how the petitioner is before this court with his grievance.
3. In the comments furnished by respondents No.1 & 5, it has been asserted that not only the petitioner himself has violated the law on the subject but also flouted the repeated directions of this court passed in WP No.1471-P/2016 and WP No.3422-P/2018 by not fulfilling the mandatory conditions under the Tehsil Municipal Administrator Market Byelaws, 2015, necessary for the grant of a license for the establishment of a priva te Fruit and Vegetable Market. It is further averred that the legal procedure for amendment in the Byelaws has not been adopted by the defunct Tehsil Council Kohat, therefore, the competent authority cancelled / suspended the very Resolution whereby such amendments have been introduced under Section 64 of the Local Government Act, 2013 through letter No.A0- III/LCB/1-8/2019/KC, dated 23.10.2019; that initially a conditional license was issued to the petitioner on 3.11.2015 pursuant to the directions of this court, which was cancelled on 25.3.2016 because of non-fulfillment of the terms and conditions duly mentioned in the license; that the period of the said license was extended till 30.6.2018 in the light of the directions of this court; that lastly , the petitioner submitted an application for the renewal / extension / grant of license to the respondents on 1.10.2019 without fulfilling the mandatory conditions under the TMA Market Byelaws, 2015 as was directed by this court vide judgment dated 25.9.2019, therefore, the respondent No.1 regretted his such application vide impugned letter dated 25.10.2019.
4. Both the learned counsel for the petitioner contend that the impugned letter dated 24th October , 2019 of the respondent No.1 is illegal and unlawful, requires to be declared as null and void; that the petitioner along with a good number of traders / arthis have invested a huge amount on the site so as to run their respective businesses and more so, that hundreds of individuals are employed either directly through the market itself or by the traders / arthis, who are earning their livelihood for their respective families; that the respondent-TMA has not implemented the judgments and orders of the courts and instead violated the same by regretting the application of the petitioner for the grant of license for the establishm ent of a private fruit and vegetable mandi; that the petitioner has duly fulfilled the required conditions as mentio ned in the license dated 3.11.2015 by producing the relevant documents but even then the respondent-TMA has cancelled his license; that under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 every citizen has the right to enter upon any lawful profession or occupation and to conduct any lawful trade or business but the petitioner along with a good numbe r of traders / arthis have been deprived by the respondent-TMA from exercising their fundamental right and that the act of the respondent-TMA is in utter disregard to the law on the subject as well as the directions of this court. In support of their contentions they placed reliance on 2011 SCMR 80, PLD 2006 Karachi 479, PLD 2004 Lahore 376, PLD 2004 SC 271, PLD 1997 SC 342 and 2002 PLD SC 452 , 2008 PLD SC 135 , PLD 2016 Peshawar 164 .
5. The learned counsel representing the respondent-TMA resists such contentions of the learned counsel for the petitioner on the grounds that the petitioner has been afforded several opportunities to fulfill the required conditions for the grant of license but instead of doing so, he has engaged the respondent-TMA in a host of litigations since 2009 and in the interregnum has been running his business as well.
6. Arguments heard and the available record perused.
7. A perusal of the record depicts that initially the petitioner started a construction work to establish shops on the site without the prior permission and approval of the TMA Kohat and when the matter came into the notice of the latter , a notice was served upon him, whereafter the petitioner presented a building plan for the construction of 24 shops on the site for sanction way back in the year 2009. Since the matter in respect of sanction of the building plan was not decided by the respondent No.1 within 60 days, therefore, the petitioner approached the civil court, whereby , he was granted permission by the learned Additional District Judge-III, Kohat to construct a market by specifically mentioning that he shall not carry out the business of Fruit and Vegetable in the proposed market vide judgment dated 13.8.2009 against which the respondent-TMA, Kohat preferred a Civil Revision No.863 of 2009, which was dismissed by this court vide judgment dated 4.9.2009, wherein, too, it was held "There is nothing in the application as could even remotely suggest that this building is constructed for the establishment of fruit and vegetable market ". After the construction of the aforesaid market at Garhi Mouza Khan Bypass Road, Kohat, the petitioner moved an application to the respondents for the grant of a license, so as to use the same as a private fruit and vegetable mandi, which was refused by the Tehsil Officer Infrastructure, TMA, Kohat as well as the worthy Secretary , Local Government vide orders dated 27.1.2010 and 28.4.201 1, respectively mainly on the ground that there is no need of a third market in the area as two fruit and vegetable markets already existed; one situated inside the City of Kohat (old market) and the other one at New Bus Stand (constructed by the Town Municipal Administration).
The petitioner challenged the aforesaid orders before this court in WP No.1585/201 1, which was allowed by this court vide judgment dated 20.9.2012. The operative part of the ibid judgment is reproduced for convenience, which follows as below:- "The refusal of respondents thus infringes the legal right of petitioner . Under the Constitution right to carry on trade, business or profession is one of the freedoms expressly protected under Article-18 of the Constitution. The power available to respondents under section 54 (2) of the Ordinance cannot confer an uncontrolled power upon the executive in the matter of regulating trade or business. We, therefore, find force in this writ petition, as Sections 53 & 54 of 6th Schedule envisages for the establishment of private market to any person and there exists no legal bar over the establishment of "Fruit and Vegetable Market" in the Local Government Ordinance, 2001 except the license for which the petitioner has duly applied and the authorities cannot deny the same under the garb of regulatory authority especially when no byelaws have been framed by the TMA Authority under Section 59 of the Ordinance, 2001 in order to regulate the grant of licensing system. For what has been discussed above, this writ petition is accepted, the impugned orders dated 27.1.2010 and 28.4.201 1 of Tehsil Officer Infrastructure TMA, Kohat and Secretary Local Government respectively are declared as nullity in the eyes of law. The respondents are directed to grant license to the petitioner to trade business and establish private Fruit & Vegetable Market in terms of section 54 of the 6th Schedule of the Ordinance, 2001 (Emphasis provided). The parties are left to bear their own costs."
At this stage, it would be more apt to reproduce Section 54 of the 6th Schedule of the Khyber Pakhtunkhwa Local Government Ordinance, 2001, which reads as :- "Condition of grant of license for private market or slaughter-house.--
(1) A local government may charge such fees as approved by its local council for the grant of a license to any person to open a private market or private slaughter-house and may grant such license subject to such conditions, consistent with this Ordinance and any byelaws made thereunder , as it thinks fit to impose.
(Emphasis provided).
(2) The concerned local government may refuse to grant any such license for reasons to be recorded.
Being aggrieved from the aforesaid judgment of this court, the respondents preferred a Civil Petition No.1676 of 2012 before the august Supreme Court of Pakistan, which was dismissed vide judgment and order dated 30.1.2013.
8. Pursuant to the directions of this court dated 20.9.2012, the Tehsil Officer (Regulation), Tehsil Municipal Administration, Kohat granted a License for the establishment of Fruit & Vegetable Market at Hangu By-Pass Road, Kohat to the petitioner on 3.11.2015, for a period of one year commencing from 1.11.2015 to 31.10.2016, subject to the fulfillment of certain terms and conditions duly mentioned therein under the Tehsil Municipal Administration, Kohat Market Bye-Laws 2015. It is pertinent to mention here that the said Market Bye-Laws were approved / passed by the Tehsil Council Kohat vide Resolution No.1 in its meeting held on 18.9.2015 and duly notified in the official gazette and the notification dated 27.10.2015. One of the terms and conditions of the License was "that the TMA Kohat reserves the rights to recall the permission / license granted for the operation of Private Fruit & Vegetable Market, if at any stage / time found that the said license is not complying with the terms and conditions of the license granted for". Since the petitioner , after getting the license on 3.11.2015 for the establishment of a Private Fruit and Vegetable Market, did not comply with the terms and conditions as laid down in the license within 30-days, therefore, the Tehsil Municipal Officer, Kohat cancelled his license vide Notification No.4240/TMA/KT , dated 25.3 .2016.
9. The petitioner then filed writ petition No. 1471 of 2016 before this court by challenging the Bye-Laws known as Tehsil Municipal Administration, Kohat Market Bye-Laws 2015 made under section 113 of the Khyber Pakhtunkhwa Local Government Act 2013 being ultra vires and beyond the scope of Khyber Pakhtunkhwa Local Government Act, 2013 and Schedule, with further prayer to set aside the impugned order of recalling the license being beyond the scope of Part-III of the Third Schedul e and Part-II of the Seventh Schedule of the Khyber Pakhtunkhwa Local Government Act, 2013 by directing the respondent to act in accordance with law / rules. Simultaneously , the petitioner filed another WP No.648-P/2016, challenging the Resolution No.5 passed by the Tehsil Naib Nazim in a Session held on 17.12.2015, whereby , all the private Fruit / Vegetable Markets / Mundies including that of the petitioner have been sealed .
10. Both the petitions were decided by this court through a common judgment dated 18th October , 2017 by holding that the notification / market byelaws are neither contradictory with the main theme and scheme of the Khyber Pakhtunkhwa, Local Government Act, 2013 and its schedules nor any of its clause offends the rights of any individual / fundamental rights and while extending the license of the petitioner till 30.6.2018, he was directed to remove the defects as per the terms and conditions mentioned in the license dated 3.1 1.2015.
11. Pursuant to such directions of this court dated 18.10.2017 as well as the petitioner's application dated 20.11.2017, the Tehsil Municipal Officer, TMA, Kohat issued a letter dated 4.1.2018, directing the petitioner to fulfill certain terms and conditions so as to proceed further in the matter qua the grant of NOC / License to him for the establishment of a Private Fruit & Vegetable Mandi at Hangu Road, Kohat. In response thereto, the petitioner submitted an application to the Tehsil Officer (I&S), TMA, Kohat on 18.4.2018 with the subject: "Approval of the Building Plan of Shahbaz Gul Sabzi Mandi" and then, a letter dated 8.6.2018 addressed to the TMO, TMA, Kohat with the request that he had duly complied with all the requirements / terms and conditions of the letter dated 3.11.2015. Since the petitioner did not comply with the ibid directions of this court dated 18.10.2017 through fulfilling / rectifying the terms and conditions under the Tehsil Municipal Administration Kohat Market Bye-Laws 2015, therefore, the license issued to him was cancelled under the provision of Clause 25 of the terms and conditions of the license with the directions to forestall / wind up the Fruit & Vegetable Trading in the market immediately vide letter dated 29.6.2018. Feeling aggrieved, the petitioner assa iled the impugned letter in WP No.3422-P/2018 which was disposed of by this court vide judgment dated 25.09.2019 whereby , the petitioner was directed to approach the concerned competent authority for the renewal / extens ion / grant of license through a prescribed application within 05 days to be reckoned from 26.9.2019 and before filing such application, shall fulfill all the requisite legal conditions for the grant of license and simultaneously , directed the respondents to scrutinize / analyze all the legal documents of the petitioner and any deficiency , if found, shall communicate the same to the petitioner in writing within 10 days positively . In case of fulfillment of all the legal formalities, the respondents shall decide the matter within 30 days and till the decision of the respondents, no adve rse action be taken against the petitioner . However , the day, the TMA decides the matter in issue then the law will take its own course and the respondents would be free to take action in accordance with law. Pursuant to the directions of this court dated 25.09.2019, the petitioner approached the TMO, TMA, Kohat by submitting a provisional application for license along with all supporting documents & NOCs for Shahbaz Gul Sabzi Mandi. The petitioner was informed vide letter dated 7.10.2019 in the light of the judgment of this court dated 25.09.2019 to fulfill the legal obligations as laid down in the market byelaws 2015 and provide afresh / updated / original and duly verified documents as mentioned in the letter . In response thereto, the petitioner submitted a letter dated 12.10.2019 without annexing any documents qua complying with the requisite terms and conditions. Resultantly , the respondent-TMA was left with little choice but to issue the impugned letter dated 24.10.2019 to the petitioner , whereby , his application for the grant of license for Shahbaz Gul Mandi at Hangu Bypass Road, Kohat was regretted.
12. Such conduct of the petitioner shows that since 2009 till date, except litigating before the different fora against the respondent-TMA, the petitioner has shown total reticence and defiance to the directions of the TMA to fulfill the terms and conditions which are explicitly provided in the Market Byelaws. Whereas, the respondents have time and again obliged the petitioner in the light of the directions of the courts, the petitioner on his turn has been found to be dragging his feet.
13. Above apart, the petitioner has not qualified the basic condition precedent for the grant of such license as per the Tehsil Municipal Administration Kohat Market Bye-Laws 2015, which says in clear terms that the intending person shall be the owner of a land measuring 4 acres, which would be free from any encumbrance and litigation.
In the instant case, though the petitioner claims to be the owner of 64 kanals land but he is in active litigation with his other siblings in respect of the said property and presently , the matter is subjudice before the august Apex Court.
14. Another intriguing aspect of the matter is that the petitioner has not as yet approved the site / building plan as per the Market Bye-Laws. The initial site plan was approved / sanctioned in his favour by the quarter concerned on the directions of the court for the construction of 24 shops but with the condition that the said building shall not be used for the establishment of a fruit and vegetable Market. It is further evident from the record that the matter between the parties in respect of approval of the building plan is still subjudice before this court in WP No.3910- P/2017 and has been fixed for hearing on 1 1.12.2019.
15. In a situation, where the petitioner has not fulfilled the basic conditions as per the Tehsil Municipal Administration Kohat Market Bye-Laws 2015, what to speak of the fulfillment of the rest of the conditions duly mentioned in the license except the NOCs etc issued in his favour by the various authorities then the petitioner has no one to blame but himself for the situation in which he has landed and that too, when over a period several opportunities were afforded to him. The conduct of the petitioner speaks volumes for itself when on the one hand, he is bent upon to run his Fruit and Vegetable Market at all costs at the site and on the other , he has been found to be flouting not only the directions of the respondent-TMA, Kohat but also of this court with a degree of impunity .
16. So far as the prayer of the petitioner for the issuance of a gazette notification of the amended Byelaws is concerned, we understand that the then Tehsil Council Committee, Kohat while passing a Resolution in its session held on 1.1.2019, whereby , though it made / introduced certain amendments in the Market Bye-Laws under section 64 of the Local Government Act, 2013 but in the process, the Committee did not follow the legal procedure and as such, the competent authority was constrained to cancel / suspend the said resolution vide order dated 23.10.2019.
In such circumstances, the prayer of the petitioner for the issuance of a gazett e notification of such amended byelaws is misplaced and misconceived and can thus be not acceded to.
17. It is worthwhile to mention here that the Tehsil Municipal Administration Kohat, Market Byelaws 2015 are framed under section 113 of the Khyber Pakhtunkhwa Local Government Act, 2013 by the Tehsil Municipal Administrator Kohat, which have been approved / passed by the Tehsil Council Kohat vide Resolution No.1 in its meeting held on 18.9.2015 and the same have been notified in the official gazette vide notification dated 27.10.2015. According to the said Market Byelaws the intending person shall comply with the terms and conditions mentioned therein for the establishment of a market.
In the present case, the petitioner has not fulfilled the requirements of Market Byelaws for the issuance of a license, for which time and again he was not only directed by this court but also the respondent-TMA and consequently , the respondent-TMA has rightly regretted his application for the grant of license for Shahbaz Gul Mandi at Hangu Bypass Road, Kohat vide impugned letter dated 24.10.2019.
18. As a sequel to the above discussion, this petition being without any substance stands dismissed with costs.