WIQAR AHMAD, J.---- This order is directed to dispose of the Writ Petition filed by All Swat Sabz i Mandi Association through its President namely Haji Sher Alam Khan, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as `Constitution').
2. The vegetable market {{URDU TEXT}} of District Swat was situated inside Mingora Bazaar and was causing problems of traffic congestion, beside adding to rush of people in the narrow market of Mingora city. The local administration intended to shift the vegetable market {{URDU TEXT}} from the said area to another suitable area.
To this extent, there has been no dispute between the parties. The dispute arose over the selection of a suitable alternate site. After a lot of zigzag decisio ns, finally the local administration with the concurrence of the Provincial.
Government chose a place at Odigram Tehsil Babozai, District Swat for shifting of the old vegetable market {{URDU TEXT}} and establishing a new one at the newly chosen place. The petitioner's Association which claims to be a representative body of the wholesale vegetable dealers (arties) and traders transporting and supplying fruits and vegetable from District Swat to other areas outside the district, have chosen another place for themselves at Takhta Band road, where they wanted to establish vegetable market {{URDU TEXT}} to be used as an exchange (Mandi) for vegetables and a place for wholesale as well as a staging station for sending vegetable to other areas outside District Swat. They filed an application before the Tehsil Municipal Administration, Babozai Swat (hereinafter referred to as 'TMA' ) for granting them NOC/license for establishing a new private vegetable market {{URDU TEXT}} at the site proposed by them. Thereafter , they filed writ petition bearing No. 234-M of 2018 before this Court which was disposed of vide order dated 25.09.2018 with directions to TMA to consider and decide their application for the grant of NOC. In accordance with the said judgment, the Tehsil Municipal Officer, Tehsil Babozai, District Swat (hereinafter referred to as 'TMO' ) through a detailed order dated 24.10.2018 dismissed their application for the grant of NOC. The petitioner then challenged the said order by filing writ petition bearing No. 1074-M of 2018 before this Court which was disposed of vide order dated 30.04.2019 of this Court, directing the Secretary Local Government Khyber Pakhtunkhwa to treat the writ petition as an appeal filed before him under section 111 of the Khyber pakhtunkhwa Local Government Act, 2013 (hereinafter referred to as 'the Act'), and decide it accordingly . The Secretary , Local Government Khyber Pakhtunkhwa vide his order dated 21.06.2019 dismissed the appeal of petitioner , whereafter the petitioner invoked the Constitutional jurisdiction of this Court with the following prayer; "It is, therefore, respectfully prayed that the instant petition may kindly be allowed and impugned order dated 21.06.2019 passed by respondent No. 1/Secretary Local Government Khyber Pakhtunkhwa and order dated 24.10.2018 bearing No. 2300/TMA (B) -- Mingora passed by respon dent No. 2/TMO be declared illegal, unlawful and nullity in the eyes of law .
It is further prayed that in consequence the respondent No.2 / TMO Babozai Mingora, Swat may kindly be directed to grant license/NOC to the petitioner along with other arties/tr aders/ stakeholders to trade business and establish private fruit and vegetable Mandi, at T akhta Band road, Mingora Swat."
3. Respondents Nos. 2 and 4 were summ oned, out of whom respondent No 2 filed his para-wise comments and raised a number of preliminary objections beside contesting the petition on merit s. The main objection regarding the merit of the case was that the site chosen by the petitioner had not been feasible for the purpose of establishment of a vegetable market {{URDU TEXT}}.
4. Learned counsel for petitioner mainly contended that it was the right of petitioner to have established a fruit and vegetable market and that the petitioner could not be restrained from enjoying his fundamental right enshrined in Article 18 of the Constitution. He further placed reliance upon the judgment of this Court given in Writ Petition bearing No. 1585 of 2011 decided on 20.09.2012, wherein this Court had allowed establishment of new vegetable market {{URDU TEXT}} at District Kohat. He also placed reliance on leave refusing order of the Hon'ble Supreme Court of Pakistan, whereby the petition for leave to appeal had been dismissed against the said judgment of this Court vide order dated 30.01.2013 of the Hon'ble Apex Court.
5. Learned counsel for respondent No. 2 raised an objection to the maintainability of the petition by submitting that petitioner was not a legal person and could not maintain a writ petition before this Court. He also invited attention of this Court towards the objections of the local administration as well as the Khyber Pakhtunkhwa Environmental Protection Agency regarding the site selected by the petitioner for establishment of a vegetable market {{URDU TEXT}}, and submitted that the administra tion had refused the grant of NOC after finding the site totally unfeasible.
He added that public interest of a large segment of society has been given preference over private business interest of a small number of people, and thus the decisions impugned in the writ petition were not only reasonable but logical and. in the best public interest. Learned counsel for respondent No. 2 in order to bolster his case placed reliance on the case of Raja Rab Nawaz v. Federation of Pakistan through Secretary . Defence and others reported as 2013 SCMR 1629 and the case of Muhammad Imran and others v. The Province of Sindh through Chief Secretary and others reported as 2019 SCMR 1753 , as well as the judgment of this Court given in Writ Petition No. 4813-P of 2019.
6. We have heard arguments of learned counsel for the parties and perused the record.
7. Regarding the objection of learned counsel for respondent No. 2 to maintainability of the instant writ petition; it is apparent that the petition has been shown to have been brought by All Swat Sabzi Mandi Association through its President namely Haji Sher Alam Khan. Learned counsel for petitioner could not show that the said Association had ever been incorporated or registered under any law. When asked, he referred to the Resolution annexed with the writ petition at page 118. The said Resolution nowhere shows that the Association i.e. All Swat Sabzi Mandi Association had ever been registered under any law. The writ petition in hand has therefore been brought by an Association which has not yet been clothed with the attire of a legal person. It was neither a natural nor a legal person and was therefore divested of the legal capacity necessary for bringing an action before a Court of law. An Association of person can only file a writ petition, if it is endowed with such a legal capacity under some law.
Incorporation as a company under the company law is one such example. Hon'ble Allahabad High Court in its judgment in the case of Mahabir v. Anjuman Wazifatul Muslimin reported as AIR 1935 Allahabad 872 had held as follows; "In 103 I C 45 (6), a Bench of this Court held that although an unregistered society cannot sue or be sued unless all the members are impleaded, there never has been a rule that such an unregistered society cannot hold property . It is not a fact that they have no legal existence at all, though for purposes of proceedings in Court such a society is not juridical person."
A similar view has also been expressed by Hon'ble Justice Dorab Patel (as he then was) in his Lordship judgment in the case of Abbas Khaleeli and others v. Saifuddin Valika and others reported as PLD 1969 Karachi 692 in the following words; "The necessary implication of this section is that no suit can be filed in the name of an unregistered Association. But this does not mean that an unregistered Association is without redress. A wrong done to an Association is a wrong to all the members of that Association, therefore, the cause of action for the redress of that wrong vests in all the members of the Association and as no member of an unregistered Association can represent another member , it would follow that a suit seeking redress on behalf of an Association would have to be filed by all the members of that Association."
Similarly , the Hon'ble Lahore High Court in its judgment given in the case of Pakistan Readymade Garments Manufacturers and Exporters Associ ation (' PRGMEA') through Chairman v. Government of Pakistan through Ministry of Finance and anoth er reported as 2013 PTD 1582 held that a constitution petition could only be filed by a party , who is competent to maintain an action. The petitioner's Association in the said case was found to have been lacking the legal capacity for filing the constitutional petition. In another judgment of the Hon'ble Lahore High Court given in the case of Pakistan Steel Re-Rolline Mills Association v. Province of West Pakistan reported as PLD 1964 (W. P.) Lahore 138, it was held that even if an Association is registered, it has got no locus standi to make a petition for the redressal of personal and individual grievances of its members. The said ratio has also been followed by the Hon'bl e Sindh High Court in its judgment given in the case of E.O.B.I. Officers'
Association of Pakistan through President and 2 others v. Messrs Employees Old Age Benefits Institution
(EOBI) through President and 2 others reported as 2011 PLC 336. The petitioner's Association, in the, case in hand has never been registered under any law and was therefore lacking the legal capacity to bring the instant petition. It was also lacking the locus standi to bring an action for redress of the grievances of its individual members.
8. Learned counsel for respondent No. 2 has also raised an objection to the merit of the petitioner's case inter alia, on the ground that petitioner had neither been owner of the land, being propose d by it for establishment of the vegetable market nor had it been so authorized by the owners of the said land. The petitioner has been claiming to have obtained the consent vide deed dated 26.08.2017, which has been annexed with the writ petition as Annexure 'I'. The deed was shown to have been effected with one Hazrat Ali Khan son of Nishat Khan, but he has never been mentioned as the exclusive owner of the property in the very deed. It has rather been narrated to be the ownership of other people in paras-1 to 7 of the said deed. On page 4 of the said deed, the first party i.e. Hazrat Ali Khan has undertaken that he would get a power of attorney from the owners of the proposed site in future. The consent of all the owners of the proposed site has nowhere been shown on the record. It is thus clear that petitioner has never been owner nor authorized by the owners to make a vegetable market {{URDU TEXT}} on their land. In such circumstances, the local administration has rightly refused the grant of NOC to the petitioner .
9. The reasons that prevailed with the TMO while rejection the application of petitioner may be gathered from order dated 24.10.2018 of the TMO Babozai Swat. Those included the following grounds; a) The site is near residential area, Gover nment Degree College, Mingora and another private educational institute and was thus found non-suitable; b) The width of the road in the vicinity of the proposed site was found to be narro w and therefore traffic jams and other security problems were apprehended to be occurring in future; c) Huge garbage generation, would cause nuisance in the surrounding; d) The Khyber Pakhtunkhwa Environmental Protection Agency had opposed the site proposed by the petitioner; e) The applicants namely Haji Sher Alam Khan and Sahib Jamal were not found to be valid license holders for carrying on the business of fruit and vege table and failed to produce power of attorneys from the other commission agents, which they claimed to have been representing.
When the appeal of petitioner was sent to the Secretary Local Government Khyber Pakhtunkhwa, same was dismissed vide his order dated 21.06.2019 by upholding the order of the TMO, Babozai Swat. Perusal of record further reveals that a committee had been constituted for visit of the spot and submitting report regarding the feasibility of the site including the one proposed by the petitioner but the said committee did not find the spot feasible for the business. The report of the Environmental Protection Agency is also important in this respect, which has recorded the following observation on the proposed site of the petitioner; "Subject: Establishment of Fruit and V egetable Market Odigram, District Swat.
I am directed to refer to the subject above and to state that the monitoring team of this Agency visited the proposed site for establishment of Fruit and Vegetable Market Takhta Band Swat. As per report there is residential area around the proposed site. and the market may cause the environmental pollution in future.
It is therefore, requested that the site is not feasible for establishing of the market so that the NOC may not be issued for same purpose and the president may be directed to select the other site, please."
The petitioner could not bring anything on record to rebut the authenticity of the report, or to establish any mala fide on part of the inspecting authorities, which were from different departments and some of whom were also having autonomous status like officers of the Environmental Protection Agency . We find no reason for not believing their report regarding the state of af fairs existing at the site proposed by the petitioner .
10. Coming to the contention of learned counsel for petitioner that in a similar situa tion, this Court had issued a writ petition for establishment of vegetable market {{URDU TEXT}} at District Kohat; it is important to be noted that the said judgment had been passed accordin g to the legal regime provided by the Local Government Act, 2001. The relevant laws applicable in the said case as well as facts of the case were entirely different. In the said case, the only reason given by the administration while refusing the NOC was that the TMA had established its own market and therefore, the petitioner of the said writ petition was not allowed to establish a second market. This, Court held that it would amount to encouraging monopoly and found it violation of the fundamental right of freedom of trade, business and lawful profession as enshrined in Article 18 of the Constitution. In the case in hand, the respondents have given valid reasons for refusal of the grant of NOC, which reasons could not be dislodged by the petitioner .
11. The right of freedom of carrying on business, trade and lawful profession has been guaranteed in the Constitution but same is not unrestricted and unbridled. Article 18 of the Constitution is reproduced hereunder for ready reference;
18. Freedom of trade, business or profession .----Subject to such qualifications, if any, as may be prescribed by law , every citizen shall have the right to enter upon any lawful trade or business: Provided that nothing in this Article shall prevent- a) the regulation of any trade or profession by a licensing system; or b) the regulation of trade, commerce or industry in the interest of free competition therein; or c) the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, or any trade, business, industry or service,, to the exclusion, complete or partial, of other persons.
Article 18 of the Constitution starts with the words "Subject to such qualifications, if any, as may be prescribed by law". Proviso to the said Article inter alia lays down; "Provided that nothing in this Article shall prevent; the regulation of any trade or profession by a licensing system."
The Hon'ble Supreme Court of Pakistan in the case of Muhammad Imran and others v. The Province of Sindh through Chief Secretary and others reported as 2019 SCMR 1753 has summed up the effect and scope of the right conferred by Article 18 of the Constitution as well as the permissible limitation thereon in para-46 of the judgment, after an extensive survey of the existing case law. The following three clauses of the said para are found relevant, which are reproduced hereunder for ready reference; "ii. However , this right is not absolute, unqualified or unfettered, but subject to regulation and reasonable restrictions which may be imposed by law in the larger interests of the society or for public welfare; v. The provisions that a-citizen 'possessing such qualifications, if any, as may be provided by law' and 'the regulation of any trade or profession by a system of licensing' empower the Legislature and the authorities concerned to impose restrictions on the exercise of the right; vii. Licensing system is itself a restraint on trade, but the Constitution empowers the Government to impose reasonable -restrictions. Reasonable restrictions authorized by the Constitution do not negate the Constitutional rights of a citizen to do business unhindered, without any condition"
In a similar case of Administrator , Market Committee, Kasur and 3 others v. Muhammad Sharif reported as 1994 SCMR 1048 , the Hon'ble Apex Court has recorded the following observation; "In the present proceedings the precise question for determination is whether the respondents can challenge the authority of the Government to establish a new market under the Ordinance or the respondents may use the old market for the purpose of purchase and sale of their goods. The learned counsel emphatically argued that the respondents cannot be denied their const itutional right to transact business in old market as it offends their vested Fundamental Right No. 18 incorporated in the Constitution. The respondents, according to their own statement, are doing business in the old market, and their main grievance is that they should not be compelled to do their business in the new market. F.R. No. 18 permits a citizen to conduct any lawful trade and business but the Government may regulate the trade by a licensing system. Licensing system is itself a restraint on the trade, but the Constitution empowers the Government to impose reasonable restrictions. Reasonable restrictions authorized by the Constitution do not negate the Constitutional rights of a citizen to do business unhindered without any condition. A reasonable classification is always considered to be within the framework of the fundamental right: Law may regulate the mode of carrying on business in a market place. There is no bar of exercise the lawful trade but the interest of residents of the city should be guarded as a public policy . A right to do business does not guarantee a trader an uncontrolled privilege. The law has been enacted for the benefit of growers who are engaged in the trade. It is a beneficial legislation. To establish a market it is necessary to regulate the business in orderly fashion.
A market may be established at a suitable place. A law regulating the trade and making prohibitions of doing business outside the market area does not offend the constitutional guarantee of freedom of trade. The right to do business in old market is not absolute. It is not the privilege of the respondents to do business in old market."
12. In the case in hand, the exercise of authority of the TMO, Babozai Swat by declining the grant of NOC to the petitioner , was found to have been done in a reasonable manner after affording due consideration to the plea of petitioner as well as taking benefit of the site visits of the proposed place. Reasons have also been duly recorded while declining the request. The said authority had the legal authority under Clause 'o' of Section 22 of the Act, which is reproduced hereunder for ready reference; "(O)- Regulate market and services, issue licenses, permits, grant permissions and imposed penalties for violation thereof."
The guidelines providing, for general powers and standard procedures for the Local Governments framed by the Provincial Government under section 117 of the Act also provided for the authority of the local bodies to regulate the public markets which also included its relocation. Para-49 of the SOPs notified on 21.12.2015 is of particular significance in this respect. The authority was therefore not divested of, the legal capacity to grant or refuse the subject NOC.
13. In light of what has been discussed above, the writ petition was found to have been filed by the petitioner incompetently beside being meritless. Same is therefore ordered to be dismissed.
C.M. No. 1797-M/2019
1. Through this application, applicants namely Akhtar Munir , Muhammad Amin and Khwaja Salahuddin, Advocates High Court, seek their impleadment to the W rit Petition on the panel of respondents.
2. No one appeared on behalf of the said applicants. Even otherwise, they have no locus standi to stand on the panel, of respondents as the petitioner had never raised any grievance against them, nor could they be shown to be having any personal interest in the matter to be defended by arraying them as respondents. They are neither necessary nor proper parties. The C.M. bearing No. 1797-M of 2019 is therefore dismissed.