' IRSHAD HASAN KHAN, J.--This judgment shall . Dispose of Infra-Court Appeal No,148, 151 and 152 of 1987, arising out of judgment dated 30-9-1987, passed in Writ Petition No,2174 of 1986 and 648 of 1987, by a learned Single Judge-in-Chamber involving common questions of law and facts.
2. The background of this case is that Taj Din and four others, appellants in I.C.A. No,148 of 1987 and Muhammad Hussain and four others, respondents in I.C.A. No,151 of 1987, filed constitutional petitions in this Court claiming that they have been doing the business of sale and purchase of cattle as brokers and commission agents for the last twenty years in their private premises situate within the Municipal limits of Pattoke, but the Zila Council started interfering with the aforesaid appellants' business on the ground that only the auction-purchaser from it had the exclusive right to hold the cattle market in the local area of Municipal Committee, Pattoke, and the aforesaid appellants were entitled to carry on their business of sale and purchase of cattle.
3. Neither the Zila Council nor the private respondents to the Writ Petitions filed any written statement to controvert the facts. The Zila Council, however, in its comments, filed in Writ Petition No,2174 of 1986, took the plea that under the Punjab Local Government Ordinance, 1979 as amended (hereinafter called the Ordinance), it was authorised to establish the cattle fair within the Municipal limits and all other persons and bodies including the Municipal Committees were precluded from holding the cattle Mandi. The Zila Council also denied the allegations that its cattle market was held outside the Municipal limits of Pattoke.
4. The learned Single Judge-in-Chamber, after exhaustive examination of the provisions of the Ordinance, with particular reference to Sections 3 (v), (xix), 51 (xxv), (xxix-a) and (xxxix-b), 62, 101 (a), (b), (c), (d) and (e), 106, 161, items No,34, 62 of the Third Schedule of Part I and item Nos. 17 and 20 of Part II to the Second Schedule of the Ordinance and Article 18 of the Constitution, took the view that the Zila Council, though empowered to hold cattle fair/cattle market in the Municipal limits of Pattoke, has no authority in law to interfere with or to stop private markets held for the sale and purchase of animals under Section 62 of the Ordinance. The basis of this finding was that there was no provision in the Ordinance, which would in any manner affect the rights of the private individuals to hold private cattle markets in the limits of urban local council as envisaged under Section 62 of the Ordinance. The private markets were left outside the domain of Zila Council as specifically mentioned in clause (xxv) of Section 51 ibid. It was also held that there was no repugnancy between the provisions of clause (xxxix-a) of Section 51 and Section 62 of the Ordinance. The one provides for holding of cattle fairs/markets by Zila Council in the urban limits of Zila Council and the other envisages setting up and maintaining a private market for the sale and purchase of animals under a licence granted by the Municipal Committee. It was also observed that the first and second provisos to clause ("mix) enacted an extraordinary provision in so far as it enabled/empowered the Zila Council to hold cattle markets/fairs in the urban limits of a Local Council. These provisos are to be construed strictly and cannot be interpreted to have repealed or nullified by implication the provisions of section 62 in the relevant aspect and, therefore, there was no embargo on the power of the Municipal Committee to grant licences in appropriate cases.
Accordingly, the Zila Council and/or its contractors/lessees were directed not to interfere with the private cattle markets set up by the aforesaid appellants, in the Municipal limits of Pattoke provided thay obtain a licence under section 62 of the Ordinance from the Municipal Committee and do, their business strictly in conformity with the conditions of the licence.
5. Syed Zain-ul-Abidin and Mr. Abdul Aziz Qureshi counsel for Zila Council and others argued that under section 51, clauses (xxxix-a) and (xxxix-b) of the Ordinance read with its second schedule Part I, item No,10 and Part II item No,17, the functions and holding of cattle markets within the limits of urban Local Council has been assigned to Zila Council and all other manners and modes of holding cattle market have been excluded. It was also contended that the provisions contained in section 62 are of general nature, whereas the provisions contained in section 51, clauses (xxxix-a) and (modx-b) are of specific nature and, therefore, special provision shall prevail over the general provision in so far the rights of Zila Council in holding the cattle markets are concerned. Syed Afzal Haider adopted the same arguments.
6. The submissions of learned counsel for Zila Council and Malik Nazar Hussain and Ch. Sher Muhammad, turn on the scope of sections 51 and 62 of the Ordinances, which may be reproduced herein for facility of reference:-- "51. Functios of Ziala Council.--A Zila Council may and if Government so directs shall undertake all or any of the following functions:-- ' A-Public Works
(xv) ..................................
(xvi).....................
(xvii) .
(xviii)
D-Agricultural Development and Economic Welfare (xix).....................
(xx) .....................
(ad) ..........................
(xxii) ........................
(xxiii) ........................
(xxiv) ....................
(xxv) provision, regulation and maintenance of markets; other than private markets;
(xxvi) ....................
(xxvii) .................
(xxviii)
(xxix) .................
(xxx) ........................
(xxxi) ........................
(xxxii) .......................
(xxxiii) .................................
(xxxiv) ............................................
(xxxv) ..................................................................
(xxxvi) ............................................
(xxxvii) ..........................
(xxxviii) ...............................................
(xxxix) ...............................................
(xxxix-a) holding of cattle fairs, shows and markets in the limits of its area in accordance with the bye-laws: ' Provided that a Zila Council which had been holding cattle fairs, shows and markets in the limits of the local area of an urban local council in the district before 17th January, 1980, may continue holding such cattle shows, fairs and markets in accordance with the bye-laws: ' Provided further that a Zila Council shall not hold Bakar Mandis for sale of cattle meant for slaughter in the limits of local area of an urban local council but may hold cattle fairs, shows and markets in such area even after 17th January, 1980, and in that case it shall pay to the concerned urban local council such share of the net income from cattle fairs, shows and markets as may be fixed by Government: ' Provided further that if an urban local council which had been holding cattle shows and fairs before 17th January, 1980, within the limits of its local area continues to hold the same, a Zila Council shall not hold cattle fairs, shows and markets within a radius of three miles of the limits of local area of that local council.
(xxxix-b) compulsory registration of sale of cattle and other animals at cattle fairs and markets."
"Section 62. Private markets --(1) No private market for the sale of articles of food or drink or animals shall be established or maintained within the local area of an urban local council except under a licence granted by the urban local council and in conformity with conditions of such licence.
(2) An urban local council may levy fees in respect of private markets in the prescribed manner.
(3) An urban local council may, by notice, require the owner of any private market to construct such works, provide such conveniences and make such arrangements for the maintenance of the market, and within such period as may be specified in the notice."
7. A bare perusal of clause (xxv) of section 51 would show that private markets have= been specifically excluded from the functions, which may be performed by the Zila Council thereunder.
The provisions contained in clauses (xxxix-a) and (xxxix-b) of section 51 are not to be read in isolation, but as a whole and alongwith the other relevant provisions of the Ordinance. The subject of private markets, which includes private cattle markets, is specifically dealt with under section 62 of the Ordinance, which is a self-contained enactment and does not in any manner control the right of a private individual to hold private cattle markets in the limits of urban Local Council under a licence granted to him by the Municipal Committee under section 62 of the Ordinance. It is, therefore, difficult to hold that the provisions of section 51 would prevail over the provisions of section 62, in so far as the rights of urban Local Council in regulating the private markets are concerned. It is true that when the legislature has made a special provision for a separate subject, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment is to be construed in that respect according to its own subject-matter and its own terms. Here the subject of private markets has been specifically excluded from the purview of the functions of the Zila Council and, therefore, by no rule of interpretation, the provisions of section 62 are subordinate to the provisions of section 51. The subject-matter of both these enactments are clearly defined, and there is no repugnancy between the two. The Zila Council is empowered to hold cattle fairs/markets within the limits of urban local council, whereas a Municipal Committee can regulate the setting up and maintenance of a private market under a licence. Thus visualized, the rule enshrined in the maxim: Generalia specialibus non derogant relied upon by Syed Zain-ul-Abidin; interpreted in the case of Inspector-General of Police Punjab, Lahore v. Mushtaq Ahniad Warraich and others PLD 1985 SC 159, has no relevance in the context of the present controversy. The argument that the provisions as contained in section 51 of the Ordinance, create monopoly in the Zila Council to establish cattle fairs/markets, is untenable. If sulci an interpretation is accepted then the provisions as contained in section 62 would become redundant.
8. Learned counsel also placed reliance at page 169 of Maxwell on the Interpretation of Statutes and also noticed in WAPDA v. Muhammad Arshad Qureshi 1986 SCM R 18, which reads as under:-- "Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language, or there be something which shows that the attention of the legislature had been turned to the special Act and that the one was intended to embrace the special cases provided for by the previous one, or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general Statute is read as silently excluding from its operation the cases which have been provided for by the special one."
' It has been earlier pointed out that the subject of private markets has been specifically excluded from the functions of the Zila Council and, therefore, there is no conflict between sections 51 and 62 of the Ordinance, which can operate independently. The aforesaid rule of interpretation, therefore, does not help the appellants. It is, therefore, not necessary to dilate further on this point.
9. It is next contended by Syed Zain-ul-Abidin and Mr. Abdul Aziz Qureshi that under section 65 of the Ordinance, an urban Local Council may by general or special notice prohibit the keeping and maintaining of cattles by any person in the prohibited Zone and if this provision is read together with Article 32 of the Constitution, which makes it obligatory upon the State to encourage Local Government Institutions, the public amenities shall have priority over the movement of animals and, therefore, private markets should not be allowed to be established. The submission was that even if it is assumed that section 62 empowers a Municipal Committee to grant a licence in respect of a private cattle market, such a provision would be in conflict with Article 32 of the Constitution.
10. The contention is misconceived. The vires of section 62 of the Ordinance, which provides for regulation of private markets, cannot be tested on the touchstone of Article 32 of the Constitution, which relates to the Principles of Policy. Under clause (2) of Article 30, the validity of an action or of a law cannot be called in question on the ground that it is not in accordance with the Principles of Policy and no action could lie against the State, any organ or authority of the State by any person on such ground.
11. Syed Zain-ul-Abidin and Mr. Abdul Aziz Qureshi further argued that in terms of Article 18 of the Constitution, private markets cannot be established unless and until a place is specifically demarcated for the purpose by the Municipal Committee.
12. The contention is devoid of any force. The place for the establishment of private markets can be maintained at any place within the local area of an urban Local Council under a licence granted by the urban Local Council and in conformity with the conditions of such licence, as is apparent from the bare perusal of section 62 of the Ordinance. In other words, sale, manufacture or preparation of articles of food at any place not licensed by the Urban Local Council can be prohibited while any person may carry on the sale or manufacture of such articles at any place or premises with permission of the urban Union Council by establishing a private market and in the absence thereof, he will not be allowed to carry on his business. Clearly, it will amount to regulation of trade through a licensing system, which would be in conformity with the provisions of Article 18 of the Constitution.
13. Mr. Abdul Aziz Qureshi also argued that unless a licence is issued by the Municipal Committee, the respondents herein, cannot hold private markets within the ambit of section 62 of the Ordinance. In support of his contention, reliance is placed on Muhammad Ramzan v. The Administrator Municipal Committee, Jalalpur Jattan PLD 1962 (WP) Lah.
358.
14. In the precedent case, the petitioner therein started selling vegetables within the limits of Municipal Committee, Jalalpur Jattan in the District of Gujrat. The Municipal Committee took exception to it on the plea that the private vegetable market set up by the petitioner therein could not be used unless a licence under section 64 of the Municipal Administration Ordinance, 1960, had been taken. The petitioner therein was accordingly prosecuted and convicted by a Criminal Court.
The matter ultimately came up for consideration before the Division Bench of this Court. The plea raised before the High Court was that the licence, which has been issued under the Punjab Agricultural Produce Markets Act, 1939, did away with the necessity of licence contemplated by section 64 of the Municipal Administration Ordinance, 1960, and that in the absence of any byelaw framed under Section 61 of the said Ordinance, the conviction of the petitioner therein, was bad in law and the refusal of the Municipal Committee, Jalalpur Jattan to allow him to use his private market for the sale of vegetables was unjustified. The contention was repelled by the learned Judges of the Division Bench. It was held that maintaining a licence for a private market was necessary even if bye-laws contemplated by section 64 of the Municipal Administration Ordinance (No, x of 1960) did not exist, in that, under section 4 of the said Ordinance, the bye-laws under the repealed Municipal Act (No, III of 1911) were deemed to be bye-laws under the Ordinance (No, X of 1960). In the instant case, an argument was raised before the learned Single Judge that the writ petitioners therein had not obtained the licences and were running their private markets in contravention of section 62 of the Ordinance and, therefore, the writ petitions should not be allowed, as it would amount to perpetuating an illegality.
15. The learned Single Judge in Chamber, in order to prevent an illegality to continue, gave a direction that the petitioners shall not hold their cattle markets within the limits of Local Council, Pattoke, unless they obtain licence under section 62 of the Ordinance. The impugned directive is proper in the circumstances, to which no exception could be taken.
16. The other plea taken by Malik Muhammad Nawaz, counsel for Taj Din etc. Is that no bye-laws have been framed by-the Municipal Committee, Pattoke, regulating the establishment of private markets within the limits of Municipality and therefore, the Municipal Committee cannot prohibit his client from maintaining his private market and doing business therein.
17. The contention has no force. The framing of bye-laws is not a condition precedent for the issuance of licences under section 62. The mode of granting a licence is laid down in section 172 of the Ordinance, which provides:- "172.LICENCES AND SANCTIONS. --(1) Wherever it is provided in the Ordinance or the rules or bye- laws that the permission or sanction of a local council shall be necessary to the doing of any act, such permission or sanction shall be in writing.
(2) Every licence sanctioned or permission granted by or under the authority of a local council shall be signed by the Chairman or by such official of the local council as may be authorised in this behalf by the local council."
18. The power to make bye-laws under section 168 of the Ordinance is directory with the Local Council unless so required by the Government to carry out the purposes of the Ordinance or specifically so provided under the Ordinance. It may also be pointed out that under section 168(iii), any regulation made by any Local Council Municipal Corporation in pursuance of the provisions of the Basic Inocracies Order, 1959, or the Municipal Administration Ordinance, 19t (No, x of 1960), as the case may be, if not inconsistent with the Ordinance, are deemed to continue. The bye-laws framed under the Punjab Local Government Act, 1975, since repealed, are also saved under section 182(2) of the Ordinance, in so far as they are not inconsistent with the provisions of the Ordinance and are deemed to be made under the Ordinance. It is not canvassed before us that no bye-laws were ever made by the Municipal Committee under any of the repealed provisions. In any case, even in the absence of any bye-laws, the writ petitioners are not debarred to approach the Municipal Committee, Pattoke, for the issuance of licence under section 62 of the Ordinance. The ratio laid down in Rashid Ahmad v. The Municipal Board, Kairana AIR (37) 1950 SC 163, relied upon by Malik Muhammad Nawaz, is distinguishable and not attracted to the facts of the present case.
In the precedent case, a direction was given by the Municipal Board, Kairana, prohibiting the petitioner therein, from carrying on the trade of wholesale dealer and commission agent of vegetables in violation of bye-laws. The directive was declared as ultra vires of Article 32 of the Indian Constitution, in that, no bye-laws were in force for the violation of which the directive was issued. In the present case, the existence or non-existence of bye-laws for the maintenance of private markets is not relevant, in that, the existence of a bye-law is not a condition precedent for the issuance of a licence.
' In view of the above, we find no merit in the appeals, which are hereby dismissed, but there shall be no order as to costs.