' MUHAMMAD AFZAL LONE,' J.---The facts constituting the background of this litigation are that in N.- W.F.P. On the subject of preparation, adulteration of food and ancillary matters, there are two enactments in the field, one is the piece of provincial legislation formerly known as West Pakistan Pure Food Ordinance, 1960, now called N.-W.F.P. Pure Food Ordinance, 1960, which applies to the N.- W.F.P. Province including Chitral, Dir, Kalam, Swat and Malakand Protected areas; the other Statute is the Cantonments Pure Food Act, 1966 enacted by the Federal Legislature and extended to all the Cantonments in Pakistan. It is discernible from the record that the District Sanitary and Food Inspector, Peshawar, respondent No, 1 herein, who is functionary under the Pure Food Ordinance, attempted to carry into execution and enforce its provisions in the Cantonment Area, Peshawar, to which the appellant/Board objected in writing. The former, however, took up the stand that the Ordinance extends to the whole of Pakistan, neither the Cantonment area is excluded from the operation thereof, nor is there any provisions in the Cantonments Pure Food Act, to exclude his jurisdiction. The appellant thereupon filed a Constitutional petition in the Peshawar High Court, for issuance of a direction that under the Ordinance respondent No, 1 has no authority to operate in the area of Cantonment. Without going into the merits, a learned Single Judge of the Peshawar High Court dismissed the writ petition, as incompetent, on the ground that the appellant was not an aggrieved party, and it was for the Authorities empowered to promulgate the respective Statutes to have raised the issue of repugnancy.
2. In the leave grant order it was noticed that the overlapping of the I provisions of the two Statutes resulted in some conflict in their execution. Accordingly, leave to appeal was granted to examine the same.,
3. In support of this appeal, the learned counsel for the appellant has drawn our attention to Article 143 of the Constitution, which is reproduced below:-- "If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis- e-Shoora (Parliament) which Majlise-Shoora (Parliament) is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly, shall to the extent of the repugnancy, be void."
' It is to be noticed that before the promulgation of 1973 Constitution, both the enactments were on the Statute Book of the country and thus qualified to be the "existing law" envisaged by Article 268 of the Constitution. The question, however, is whether there is any repugnancy in the two Statutes.
The test of the repugnancy is that the two provisions of law are irreconcilable and cannot coexist.
With this test in view the comparison of the two enactments would reveal that a number of important provisions in both the Statutes are inconsistent and incapable of reconciliation. For instance, under section 11 of both the enactments, no place can be used for preparation, manufacturing, blending, preserving, refrigeration, canning or bottling of any food or business in other food products covered by these laws and dealt with therein, except under a licence granted by the authorities concerned. However, the authorities empowered to grant such licences under the two Statutes are different. Consequently a licence issued under section 11 of the Ordinance, would not be valid for conducting the business in question in the Cantonment Area, in pursuance of the Pure Food Act. If both the laws are held operative in Cantonments, a person dealing in food articles, forming the subject-matter of the two enactments, to avoid adverse consequences, shall have to obtain two licences, one under the Ordinance and the other in contemplation of the Cantonments Pure Food Act. Further the Authorities competent to appoint Inspectors for enforcement of the two Statutes are also different. There is a clear cut overlapping of jurisdiction of the functionaries under these laws, likely to result in divergent actions and conflicting orders.
Perhaps a more vivid example of inconsistency, is to be found in section 23 of the two Statutes. The penalty provided for contravention of the relevant provisions of the Ordinance is more than the one prescribed for the same offences under the corresponding provision (section 23) of the Cantonments Pure Food Act. Thus for the same offence, a person if proceeded against under the Ordinance, may, be liable to suffer a higher penalty as compared with his prosecution under the Cantonments Pure Food Act. Further as already indicated a person holding a valid licence from the Cantonment Board Authorities when hauld up by the District Sanitary and Food Inspector, Peshawar, may be found running business in food products in question without a valid licence under the Ordinance. It is not possible to harmonize such provisions of the two enactments and remove the inconsistency. Evidently, the two enactments cannot co-exist. Applying the rule envisaged by Article 143 of the Constitution, the Ordinance being a Provincial Statute, so far as Cantonment area is concerned, shall have to give way to the Cantonments Pure Food Act, 1966.
4. Before us, in the course of hearing of this appeal, it has not been disputed that the appellant/Board is an aggrieved party and thus could competently invoke the writ jurisdiction of the High Court. The view taken by the High Court in declining to entertain the writ petition by holding that the appellant is not an aggrieved party- is thus palpably wrong. In view of the aforesaid analysis of the relevant provisions of the two Statutes, on the touch stone of Article 143, the writ petition merited acceptance. The declaration prayed for by the appellant, therefore, should have been allowed.
' For the foregoing reasons, this appeal is accepted; the impugned order set aside and it is declared that respondent No, 1 has no authority to operate and enforce the provisions of the Pure Food Ordinance, 1960, in the Cantonment area, Peshawar. The parties are left to bear their own costs.