1. This is public interest-related matter involving enforcement of fundamental right guaranteed under Article 9 of the Constitution. The relevant facts are that there are some 25 shops situated in Aminpur Bazar of Faisalabad where hide and skin business is being carried out since long. In addition thereto many other persons who do not own shops have been doing their business at this place in front of the shops and in the open market. Hides and skins are stored/kept inside and outside the shops. It is admitted position that this place is situated in a thickly populated area: The offensive smell is source of pollution and undoubtedly it endangers human life. By interim order the shop--keepers/merchants dealing in hides and skins were restrained from keeping the hides and skins and other articles of this merchendise outside their shops and on the footpaths. On 12-12-1996 I also directed the Superintendent of Police (City Faisalabad for himself visiting Chamra Mandi (Aminpur Bazar) and challan the deliquent shopkeepers under the relevant law, who were found keeping hides and skins outside the shops and on the footpath. At present the position is that hide and skin business has been virtually shifted and the storage of the hides and skins is being made in Sialvi Colony which is adjacent to the existing slaughter house.
2. 2.Article 9 of the Constitution provides as follows:-- "Security of Person.--No person shall be deprived of life or liberty save in accordance with law."
3. Learned counsel for the petitioner, learned Additional Advocate-General and the learned Legal Advisor of the Faisalabad Development Authority, all agree that raw hides and skins are hazardous to human life not only because these can cause P' diseases but they also emit offensive smell which makes living of the people in the neighbourhood uncomfortable. This certainly affects quality of 'life' guaranteed under Article 9 reproduced above.
3. A piece of land measuring about 11 acres has been provided for the use of slaughter house in the master plan prepared by the Commissioner, Faisalabad. Adjacent to the slaughter house an area of four acres of land has been allocated for the hide and skin market. On earlier dates of hearing I directed that proper plan should be chalked out for providing alternate lands to the merchants/shop--keepers of hides and skins in the new hide and skin market which is to be established adjacent to the new slaughter house. The Municipal Corporation, Faisalabad has prepared the site plan in which the shopkeepers and other persons related to this business will be accommodated. On the last date of hearing I directed the Administrator of the Municipal Corporation to personally visit the spot in Aminpur Bazar and prepare list of the genuine persons who have been actually doing the business of hide and skin in Aminpur Bazar, Faisalabad. The Administrator is present today. He has produced copy of the list of the businessmen who have been genuinely doing the business at that place. This list consists of 25 plus 16 persons. The 25 persons are those who are doing business and are owners of the shops while the 16 persons are those who are not owners of the premises but are dealing in hide and skin business in the Aminpur Bazar. The report which has been prepared by the Administrator after spot inspection is reproduced below: "According to the business, the community has been divided into two categories i.e. Category ' A' and Category ' B' . The Category ' A' consists of the businessmen who have their own shops while the Category ' B' consists of the people who do not have their shops. The verified list of Category ' A' and Category ' B' is as under:-- CATEGORY ' A'
4. 1.Abdul Rashid son of Abdullah 2.Muhammad iqbal son of Muhammad Ismail 3.Muhammad Siddique Babur son of Muhammad Bakhsh 4.Abdul Wahid son of Sheikh Abdullah 5Muhammad A.I son of Sheikh Muhammad Younus 6Ch. Allah Ditta son of Mehr Din 7Riaz Ahmad son of Sheikh Dost Muhammad 8.Sh. Fazal Elahi son of Sheikh Karam Elahi 9.Muhammad Latif Ch. Son of Mehr Din 10.Muhammad Ashraf Alvi son of Babu Muhammad Hussain 11.Mubarik A.I son of Fazal Hussain.
5. 12.Sh. Amanullah son of Sh. Muhammad Sharif 13Muhammad Rafique son of Muhammad Sharif 14Javed Qamar son of Qamar-uz-Zaman 15,Qamar-uz-Zaman son of Hafiz Nabi Bakhsh 16Muhammad Saeed son of Sheikh Muhammad Abdullah 1'7.Muhammad Yasin son of Elahi Bakhsh 18.Abdul Rehman son of Sh. Inayatullah 19.Anis Ahmad son of Rafique Ahmad 20.Ch. Abdul Rashid son of Inayatullah 21.Haji Muhammad Shaft son of Muhammad Zafar 22Fiaz Ahmad son of Sheikh Dost Muhammad 23Abdul Majid son of Sh. Muhammad Inamullah 24.Sheikh Muhammad Javed Anwar son of Sh. Khair Muhammad 25.Muhammad Saleem son of Fazal Hussain.
6. During the spot visit it was observed that Muhammad Saleem son of Sh. Muhammad Aslam, Proprietor, Akram Tanneries was not doing his business at Faisalabad. The Proprietor Muhammad Saleem son of Muhammad Aslam is settled at Karachi and has established his business there.
7. Muhammad Shafi Company, Proprietor Muhammad Haleem is settled in Lahore and has established his business in Lahore and Karachi. Therefore, the list of above 25 businessmen is approved for the consideration of allotment in the new skin and hide market.
8. CATEGORY ' B'
9. During the spot visit the list provided by the Association was verified as under:-- 1.Abdul Waid son of Ch. Rehmat Ullah 2Sheikh Muhammad Amjad son of Anis Ahmad 3.Tajammal Hussain son of Sh. Anwar Hussain 4Muhammad Shamshad son of Lal Din 5Muhammad Boota Zahid son of Mian Muhammad Yousaf 6Muhammad Shabbir son of Muhammad Faqir Muhammad 7Muhammad Arif son of Muhammad Sadiq 8Muhammad Babur son of Din Muhammad 9,Zafar Rashid son of Abdul Rashid 10Aamer Rashid son of Abdul Rashid 11Tariq Javed son of Ch. Allah Ditta 12 Hadayat Ullah son of Noor Elahi
13. Sabghat Ullah son of Sh. Amanullah 14 Ejaz Javed son of Sher Muhammad Shafi 15 Allah Ditta son of Karam Elahi 16,Muhammad Waris son of Muhammad Bakhsh That the varified list of Category ' B' consists of 16 members who will be considered for the purpose of allotment in the proposed Skin and Hide Market, Faisalabad.
10. The related documents i.e affidavits and proposed site plan is submitted herewith. "
4. He has also produced a map/plan which shows that 29 big size shops/godowns and 22 small size shops will be built on the aforesaid area of 4 acres allocated for the new hide and skin market.
11. 5.In exercise of the Constitutional jurisdiction for enforcement of fundamental rights the High Court has unlimited powers to issue appropriate directions to the functionaries of the State under para.
(c) of clause (1) of Article 199 of the Constitution. The scope of the jurisdiction of the High Court in such cases came up for consideration before me in Mst. Ameer Bano v. S.E. Highways (PLD 1996 Lahore 592). In that case I held as under:-- "While exercising powers under Article 199 of the Constitution, in normal cases, the jurisdiction of this Court is restricted to making an order 'directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required bylaw to do; or declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect. " However, when dealing with Constitutional petitions for the enforcement of fundamental rights, as 'is the case in hand, the jurisdiction of this Court is not controlled by any limitation. The jurisdiction regarding the enforcement of fundamental right finds mention in clause
(c) of sub-Article (1) of Article 199 of the Constitution, which is reproduced below:-- (c)on the application of any aggrieved person, make an order giving such direction to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part .II.
12. Therefore, it is clear that for the purpose of enforcement of any of the fundamental rights guaranteed under the Constitution this Court can give a direction to any person or authority including any Government within its territorial jurisdiction, which may be deemed proper for securing the fundamental rights or to avoid their violation. The act which is required to be done by the public functionaries by the Court under the above clause may not normally be allowed to be taken by them under specific law/rules or in normal circumstances they may even be not permitted specifically to perform such act under the existing law or rules. But in pursuance of a direction given by the Court under sub--clause (c) supra, the person/authority/Government so commanded by the High Court shall be bound to perform the act so that the fundamental rights of citizens are enforced. The reason why unlimited powers have been granted to the High Court for issuing appropriate directions is that every other laws/rules/instructions have to yield to the fundamental rights enshrined in the Constitution."
6. After hearing the learned counsel for the parties and the learned Additional Advocate-General I am of the view that this is a fit case in which appropriate directions should be issued under para.
(c) of clause (1) of Article 199 of the Constitution for enforcement of fundamental rights of the residents of the area to enjoy peaceful and qualitative life. It is, therefore, directed as follows:-- (i)No actual business in hides and skins shall be transacted in Chamra Mandi (Aminpur), Faisalabad. To make it more clear, the hides and skins shall not be brought at this place for the purpose of purchase or sale nor shall the same be stored in the shops in this area. Hides and skins shall not be displaced or kept in any manner whatsoever on foot--paths or road-side either.
13. (ii)The functionaries of the Municipal Corporation, Faisalabad and the local administration will keep proper vigilance to ensure that the above Court order is faithfully complied with.
14. (iii)All delinquent persons should be booked, in accordance with law.
15. It may be mentioned that the learned counsel for the Anjuman Tajran Charam has assured that in fact the actual business in hides and skins has already been shifted to Sialvi Colony adjacent to the existing slaughter house. The shops in Aminpur Bazar,are offices and nothing more.
16. (iv)The bona fide and genuine persons dealing in the hide and skin business will be accommodated at the new site near the, under-construction slaughter house in the aforementioned development scheme.
17. (v)The 25 shopkeepers who have been found to be actually doing business in Aminpur Bazar shall be accommodated in the 25 big size shops in the map/plan produced by the Administrator of the Corporation. The sixteen shopless persons dealing in the business will be accommodated in the small size shops.
18. The map/plan aforesaid has been signed by the Administrator of the Corporation, learned counsel for the petitioner, learned legal advisor of the Municipal Corporation and the Faisalabad Development Authority and myself. This has been done to ensure that the shops at the new site should be given to the genuine persons dealing in the concerned business and in future on account of any extraneous consideration, no undue benefit may be shown to undeserving persons.
19. This signed map/plan has been handed over to the Administrator of the Municipal Corporation for its safe custody in his record.
20. (vi)The Municipal Corporation shall finalise the conditions with respect to the rent etc. To be charged from the shopkeepers at the new site within the next three months. During that period proper demarcation shall also be made and possession shall be delivered to the aforementioned 41 persons, so that they may build shops with their own resources. The Administrator of the Corporation has stated that the aforesaid four acres area is already developed in the sense that it is levelled and construction can be raised thereon without any hitch.
(vii) It May be observed that merchants in hides and skins have been ordered to be shifted as detailed above by partially curtailing their right of business, in the public interest to enforce fundamental right of the residents of the area to live in atmosphere free from health hazards.
21. Therefore, they must be accommodated in the new market with soft terms with regard to the rent/lease money etc. Prohibitive/penal rent should not be charged from them in lieu of the land given to them.
(viii) The slaughter house in the new development scheme is stated to be in the process of completion. The Municipal Corporation shall expedite the completion of the slaughter house. On the completion and functioning of the new slaughterhouse, the stores/shops of hides and skins from Sialvi Colony shall also be shifted to the new site. The owners of 'the aforementioned 25 shops mentioned in the list prepared by the Administrator and the shops/stores in Sialvi Colony adjacent to the existing slaughter house are the same persons. No storage of hides and skins shall be made in the Sialvi Colony after the functioning of the new slaughter' house. To make it more clear, after functioning of the . New slaughter house and delivery of possession of the plots/area in the new market, no business/storage shall be made at any other place. Whether residential, commercial or industrial within the urban area of Faisalabad. The business and storage of hides and skins shall be restricted to the new hide and skin market adjacent to the new slaughter C house.
7. Needless to observe that functionaries of the Municipal Corporation and the Local Administration while complying with the above directions of the Court shall not in any manner be influenced by any political or other consideration. The public interest is supreme. No one should yield to any extraneous consideration.
22. The Constitutional petition stands disposed of in the above terms