This is a petition under Article 9 of the Provisional Constitution Order, 1981, whereby Ch. Muhammad Akram and Ch. Muhammad Sidique, the petitioners, want this Court to quash order, dated 13th January, 1983 of the District Magistrate, Multan, or in the alternative to direct him to withdraw the same.
2. The relevant facts leading up to this writ petition as stated by the learned counsel for the petitioners, in brief, are that the petitioners purchased a plot of land measuring 5,400 sq. Ft. Situate near a corner abutting on Nusrat Road. Multan. After having got sanctioned the plan, they constructed show-room on that plot and have been running regular business there. It so happened that two months prior to the issuance of the impugned order, a son-in-law of District Magistrate, Multan, came to the petitioners' show-room to purchase a car and insisted on paying less price but the petitioners refused to oblige him. According to the petitioners this "No Favour" to the son-in-law provoked his father-in-law the District Magistrate, respondent No, 1, who turned hostile and with intent to reck the business of the petitioners and demolish their show room, vide impugned order dated 13th January, 1983 directed the erection of "No Parking" signs just to cover the front of show room of the petitioners. The petition was originally filed against the District Magistrate and Municipal Corporation, Multan. On 15th March, 1983 which was placed before this Court on 16th March, 1983 when parawise comments and report was called for from the District Magistrate On 4th April, 1983 parawise comment and report was also called for from Municipal Corporation, respondent No, 2 The comments furnished by respondents Nos. 1 and 2 have been placed on the record. District Magistrate, respondent No, 1, refuted the allegations whereas the Municipal Corporation expressed an attitude of an unconcerned person. On 13th April, 1983 I passed the following order :- "Learned counsel for the petitioner submits that the learned District Magistrate while passing the impugned order, dated 13th January, 1983 has travelled beyond his authority inasmuch as he has not fixed timing and have not stipulated the places, The contention raised by the learned counsel needs consideration.
2. Admit. Notice for 27th April, 1983."
3. Thereafter the District Magistrate modified the impugned order by specifying the time for 'No Parking' of vehicles from 9 a. m. To 5 p. m. Further, the Cantonment Board after having claimed jurisdiction over the site gave advice to the petitioners that, in order to avoid any untoward incident/accident in front of your show room due to congestion of cars, you are advised to provide angle-iron grill permanently fastened with earth in the inner side of the alignment of foot path leaving single exit for cars. As per your promise the subject work will be accomplished before 27th of this month positively failing which the foot path will be constructed by blocking the front of your shop completely in order to avoid traffic hazard and in the convenience of pedestrains for whom the foot path of the road are meant for". The petitioners, therefore, sought permission to amend the petition which was allowed and amended petition has accordingly been filed.
4. The learned counsel for the petitioners contends that the impugned order is illegal, mala fide, arbitrary and thus without lawful authority for the following reasons :-
(i) That it does not fulfil the preconditions of section 33-A (m) of the Police Act inasmuch as the same is not based on valid reasons and the reasons given therein are purely conjectural and subjective;
(ii) thats ection 33-A (m) of the Police Act stands impliedly repealed by the provisions of section 84 of the Punjab Local Government Ordinance, 1979, section 282 of the Cantonments Act, 1924, and section 80 of West Pakistan Motor Vehicles Ordinance, 1965, and as such under these laws, an order in respect of the regulation of traffic could be passed by the urban council or other authorities empowered in that respect and not by the District Magistrate under section 33-A (in) of the Police Act ;
(iii) that the impugned order is not of regulatory nature but is of prohibitory nature; and
(iv) that since the petitioners did not concede to the desire of the son-in-law of the District Magistrate, the impugned order was passed out of personal malice with intent to damage the business of the petitioners and harass them and as such if there was any authority to pass the order, the same is rendered illegal. The mala fide is also reflected by the conduct of the District Magistrate whereby he spared other show room situate on the same road near S. P. Chowk, Multan, and from the Act of his refusal to supply the copy of the impugned order.
Learned counsel has placed reliance on General Manager, Heavy Mechanical Complex, Texila v.
Mamoon A. Kazi, Senior Member, N.1. R. C. , Pakistan Burmah Shell Ltd. v. Central Labour Commissioner and Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another .
5. As against this, the learned Assistant Advocate-General has vigorously supported the impugned order refuting the allegations levelled by the pethioners against the District Magistrate. He relied on East and West Steamship Company v. Pakistan to contend that the term "regulation" includes restrictions and prohibition. He further stated that since the impugned order regulates traffic on public road, the petitioners have no locus standi to challenge the same.
6. Having considered the arguments advanced by the parties, I have not been able to persuade myself to agree with the learned counsel for the petitioners. As for questions of law raised by the learned counsel, the relevant law referred to by him may be quoted with advantage :- THE POLICE ACT, 1861.1 2 3 4 ' Section "33-A. Powers of the District Magistrate to make rule regarding use of Streets. Etc.-(l) In any town or other place in which he thinks fit, the Magistrate of the district may, from time to time and subject to such order as may have been made by a Municipal or other authority empowered in that respect, make rules or orders :-
(a) to (1).
(m) regulating the movement of persons, animals and vehicles at such times and such places at which in the opinion of the Magistrate, special regulations may be necessary for the public safety and convenience;"
PUNJAB LOCAL GOVERNMENT ORDINANCE, 1979 "Section 84.-Traffic control,-(1) An urban local council, shall, by bye-laws, make such arrangements for the control and regulation of traffic as may be necessary to prevent danger to and ensure the safety, convenience and comfort of the public. (2) An urban local council may, provide for parking motors on such public places as may be determined by it."
CANTONMENTS ACT, 1924 "Section 282.-Subject to the provisions of this Act and of the rules made thereunder, a Board may, in addition to any bye-laws which it is empowered to make by any other provision of this Act, make bye-laws to provide for all or any of the following matters in the cantonment, namely :-
(1) to (3)
(4) the regulation or prohibition of any description of traffic in the streets;"
WEST PAKISTAN MOTOR VEHICLES ORDINANCE, 1965- "Section 80.-Parking places and Halting Stations.-Government or any authority authorised in this behalf by Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitly or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for taking up and setting down of passengers."
A plain reading of these provisions indicates that section 33-A (1) (m), Police Act, has not been specifically repealed. The language of section 33-A (1) of the Police Act that "the Magistrate of the district may, from time to time and subject to such order as may have been made by a Municipal or other authority empowered in that respect, make rules or orders" excludes the possibilty of repeal by implication. It simply lays down that the District Magistrate would pass order subject to such orders as may have been made by a Municipal or other authority empowered in that respect and does not restrain the District Magistrate-from passing appropriate orders particularly when no rule or orders in that respect have been made by the Municipal or other authority. In the case in hand the learned counsel has not been able to lay his hand on any corresponding rule or order passed by Municipal or other authority, therefore, I am convinced that unless there is a rule or order passed by Municipal or other authority empowered in that respect, the powers of the District Magistrate to pass appropriate orders within the scope of section 33-A are neither excluded nor curtailed even by implication. Even otherwise it is well-settled that the Courts do not recognize repeal of law by implication unless the intention of the legislators to repeal is clearly apparent and that too free from all doubts. It has to be assumed that the Legislature enact laws with a complete knowledge of all existing laws pertaining to the same subject, therefore, to my mind, omission to add corresponding repeal, clause in the Punjab Local Government Ordinance, 1979, and the West Pakistan Motor Vehicles Ordinance, 1965, would indicate that at the time of enactment of these laws the intention of the Legislature was not to repeal section 33-A (1) (m) of the Police Act but only to make the power of the District Magistrate in that respect subject to the rules or orders which may have been passed or made by Municipal or other authorities. To my mind, section 84 of the Punjab Local Government Ordinance, 1979, section 80 of the West Pakistan Motor Vehicles Ordinance, 1965 and section 282 of the Cantonments Act, 1924, are only enabling provisions and not the rules/orders made by Municipal or other authority as envisaged by section 33-A of the Police Act. For all these reasons point at (ii) raised by the learned counsel appears to be without substance. As for Point No, (0, the examination of the impugned order reveals that the preconditions have been fulfilled by the District Magistrate. Section 33-A of the Police Act makes the District Magistrate judge of the site and situation and if he thinks fit he may, of course subject to such order if any made by a municipal or other authority empowered in that behalf, pass appropriate orders. Although section 33-A does not require him to give reasons yet the District Magistrate has given reasons for his orders that, "in order to prevent any hazard to life and property and to ensure smooth flow of the traffic". To my mind, these are quite valid reasons and cannot be termed as conjectural or subjective. I am, therefore, inclined to hold that the impugned order contains quite valid reasons. Point No, (i) is, therefore, declared to be without force. Coming to Point No, (iii) of the learned counsel for the petitioners I find that in Chambers 20th Century Dictionary at page 1138 the word "regulate" is defined to mean "to control, to adopt, or to adjust by rules". The word 'regulate' thus appears to be synonymous with the word "control" or "govern". It may therefore, cover orders of prohibitory nature which may be deemed necessary by the District Magistrate for the regulation of the movements of vehicles on roads and streets in any town or other places in which he thinks fit. This contention is repelled accordingly. As for the allegations of mala fide levelled in Point No, (iv) these allegations have been refuted by the District Magistrate. Even otherwise the same does not appeal to reason. Had the District Magistrate any personal malice against the petitioners or any intention to harm then he could teach a lesson to the petitioners by taking much more damaging action. It appears that the story has been concocted only to make out a case, of mala fide against the District Magistrate. It is worth notice that the name of the son- in-law of the District Magistrate has not been disclosed. In any case the allegations having been refuted by the District Magistrate require factual investigation which I am afraid may not be done by this Court while sitting in writ jurisdiction. As for the case-law cited by the learned counsel the same does not apply to the facts of this case.
7. The upshot of the discussion is that there are no satisfactory, basis for interference with the impugned order. The petition is, therefore, dismissed with costs. PLD 1977 Lah. 998 PLD 1976 Ka r. 1118 PLD 1982S C113 PLD 1958 SC Pak. 141