' WAJIHUDDIN AHMED, J.---While there is a history to the dispute covered by the present leave petition, for our purposes the controversy is grounded in an order dated 2-9-1998, in Miscellaneous Appeal No,26 of 1998, passed by the Deputy Commissioner/Controlling Authority, Hafizabad. As to facts, the Zila Council Hafizabad had leased out the Cattle and Fair Market Contract 1998-99 at Rs,48,50,000 in favour of Haji Muhammad Akhtar (respondent No,4), the venue of the contract being village Thattha Gahra, situated at some 17 miles towards the eastern side of Town Committee Pindi Bhattian. Such Muhammad Akhtar challenged before the Deputy Commissioner, aforesaid, the auction lease for the purported "Maila Mandi Maveshian", granted on 27-6-1998, by the referred Town Committee for a like period in the sum of Rs,72,000 in favour of Malik Riaz Ahmed, the petitioner here. Each of these contracts, ex facie competing, was to operate on Wednesdays alone. The Deputy Commissioner, upon hearing, opined that the contract amount of Rs,72,000 was too meagre to be sustained. He proceeded to record his conclusion as under:-- "In view of the foregoing observations I hold that the Town Committee, Pindi Bhattian should stop holding Cattle and Fair Market within its local area and, for income purpose, it may only continue to hold 'Bakar Mane after framing of bye-laws as provided in the Punjab Local Councils Ordinance on different days other than the day on which Cattle and Fair Market is held at Thattha Gahra."
' Each of the aforesaid contestants, as against the above order, preferred a writ petition of his own before the Lahore High Court which, per order dated 14-9-1998, came to the conclusion that section 62(1-A) of the Punjab Local Government Ordinance, 1979 as inserted in 1991, precluded an urban local council from holding any cattle market/fair/show within its territory though such a council could hold a Bakar Mandi for the purpose of slaughtering of animals to generate supply of meat to the residents of the council. In consequence, each of the two petitions was disposed of with the direction to the local body to proceed in accordance with law. In consequence, Riaz Ahmed, to whom the Town Committee, Pindi Bhattian had granted the lease in question, has preferred the instant petition.
' The legal provisions applicable to this dispute are sections 3(1)(v)(xix), 51, 62, 63, 101 and 106 of the Local Government Ordinance (VI of 1979). To the Extent of relevancy, the same are reproduced below.
Punjab Local Government Ordinance, 1979.
3. Definitions.--(1) In the Ordinance, unless the context otherwise requires--
(i) to (iv)...............................
(v) 'cattle' means cows, buffaloes, bulls, oxen, bullocks, heifers, calves, camels, sheep and goats;
(vi) to (xviii)...............................
(xix) 'market' means a place where persons assemble for the sale and purchase of meat, fish, poultry, fruit, vegetables or other eatable of food or for the sale and purchase of livestock or animals and includes any place which may from time to time be notified as a market.
51. Functions of zila council.-- A zila council may and if Government so directs shall undertake all or any of the following functions:
(i) to (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 Mandi 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) to (lvii)..........................
62. Private markets. --(1) No private market for sale of articles of food or drink or animals shall be established or maintained within the local area of an urban local council expect under a licence granted by the urban local council and in conformity with conditions of such licence.
(1-A) Notwithstanding anything contained in subsection (1) of section 101 and subject to sections 51 and 106 no cattle market private or otherwise, shall be held within the local area of an urban local council.
(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.
63. Slaughter houses. --An urban local council shall provide and maintain at such site or sites within or outside the limits of its local area one or more slaughter houses for the slaughter of animals or sale of any specified description of animals.
101. Public markets.- -(1) An urban local council may establish and maintain public markets or may provide places for use as public markets, for the sale of articles of food and drink and of animals and secure the proper management and sanitation of such markets.
(2) An urban local council may in respect of public markets, provide by bye-laws--
(a) to (c)...........................................
(d) the fees to be charged in respect of animals brought for sale or sold, and (c).........................................................
106. Cattle shows, zoo, etc. --(1) An urban local council shall not hold shows and fairs within the limits of its local area, but may hold Bakar Mandis for sale of cattle meant for slaughter and charge such fee per cattle head sold as the bye-laws may provide: Provided that an urban local council which had been holding cattle shows and fairs before 17th January, 1980, within the limits of its local area may continue holding such cattle shows and fairs and charge such fee from the people attending such shows or fairs as the bye-laws may provide.
2.
' It would appear that, as a prelude to the impending amendment, ultimately, culminating in the insertion of subsection (1-A) in section 62 of the Ordinance the Government of the Punjab, on 14-6- 1982, issued consensual instructions to be implemented by the Rural and Urban Local Councils and these in extenso read: "SUB: HOLDING OF CATTLE MARKETS.
' The Provincial Government having accepted the majority decisions of the 40-Member Committee of Local Councillors constituted by the Governor Punjab, the following decisions are to be implemented in regard to holding of Cattle Markets/Fairs in the Punjab. Necessary amendments in the law are being made. Therefore, all Rural/Urban Local Councils in the Punjab are advised to adhere strictly to these decisions:
(1) An Urban Local Council shall not hold cattle shows and fairs within the limits of its local area, but may hold Bakar Mandis for sale of cattle head sold as the bye-laws may provide: ' Provided that an" urban local council which had been holding cattle slows and fairs before 17th January, 1980 within the limits of its local area may continue holding such cattle shows and fairs and charge such fee from the people attending such shows or fairs as the bye-laws may provide.
(2) A Zila Council which had been holding such 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.
(3) 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 shall pay 20% of share of the net income from such cattle fairs, shows and markets to the concerned urban local council.
(4) If an urban local council which had been holding cattle shows and fairs before 17th January, 1980 within the limits of its local area and continues to hold the same Zila Council not hold cattle fairs, shows and markets within a radius of three miles of the limits of the urban local council.
(5) In rural areas only Zila Councils should be authorised to hold cattle markets/fairs, but Zila Councils should, however, pay 20% of the net income to Union Councils as already decided by the Government."
' As to the interpretation of the quoted provisions and the cumulative effect thereof, reliance, largely, has been placed on Muhammad Amin v. Town Committee, Zafarwal, 1992 CLC 2179, a judgment of Fazal Karim, J., then in the High Court. There, inter alia, Mehboob Yar Khan v. Municipal Committee, Mian Channu, PLD 1975 Lahore 748 and Mohinder Singh Sawhney v. State of Punjab, AIR 1968 Punjab and Haryana 391, have been invoked.
' Mr. Shamim Abbas Bukhari appearing for the petitioner has contended that because the town committee had been holding shows and fairs since before 17-1-1980 within the limits of its local area, the same can continue pursuant to the proviso appended to section 106(1) of the Ordinance.
His further argument is that because a "Fair" includes a market, as opined in the case of Mahboob Yar Khan, above, the petitioner is under no restriction in convening the cattle market pursuant to commensurate rights derived from the urban local body. A perusal of Muhammad Amin v. Town Committee, Zafarwal, (ibid), however, would reveal that Re: Mahboob Yar Khan has been distinguished there on the ground that the word "market", having been left undefined under the Punjab Municipal Act, 1911, the conclusion reached in such case would no longer hold good upon the advent of the Local Government Ordinance, 1979, which pointedly defines a "Market", Muhammad Amin's case embraces, generally, a very lucid and largely acceptable exposition of law. However, the definition clause covering "market" as occurring in section 3(1)(xix) of the Ordinance, 1979 signifying a market to mean "a place where persons assemble for the sale and purchase of meat, fish, poultry fruit, vegetables or other eatables and food or for the sale and purchase of livestock and animals" and, including, any place which may, from time to time, be notified as a "market" does not seem to make any significant difference. As always before, none of flip attributes of a market, so defined, would detract from the conclusion in Re: Mahboob Yar Khan namely, that very fair is a market but every market is not a fair or that while a market may not be the equivalent of a fair yet a fair always encompasses a market. Thus, a fair being, to a limited extent, permissible in terms of the proviso attached to section 106(1), a market may, to that extent, fall within the ambit of permissibility. That, however, only implies that when a fair is being organised a "market" may collaterally be covered but, at the same time, does not mandate a market simpliciter, if independent of a fair a "market" be impermissible.
' Having said as much, it remains to be observed that, in actual fact, what the petitioner has been leased out is hardly a fair within the ambit of which a market may have been included. The facts on the ground suggest that it is a cattle market as such rather than a fair which the petitioner has been permitted, to hold within the limits of Pindi Bhattian Town Committee. It, therefore, remains to be seen whether the same is or is not permissible. For so doing the implications and effect of the current legislative background shall have to be examined.
' On this score, the trend of the legislative amendments, dating back to Punjab Ordinance X of 1982 and culminating with like Ordinance XXII of 1991 seems to be to control the respective areas of activity and operation of the rural and urban local bodies. In pursuance, these councils have been allowed to have total freedom of action so as to ensure financial independence, on the one hand and protection from impingement against distinctly identified rights, on the other. Thus, it remains within the exclusive functions of rural local bodies to arrange for cattle fairs, shows and markets in the background of such councils being endowed with the privilege of raising and marketing cattle and livestock of all hues. Correspondingly, urban local bodies, in essentials, are concerned with the use of cattle but, largely, within their own local limits. These are distinct compartments and, accordingly, rural and urban local councils have been circumscribed to conduct and direct their activities within the natural bounds of what each has to accomplish in its peculiar background. The legislative measures, as a result, have to be viewed contextually, ' To elaborate, section 51, detailing the functions of a Zila Council, in clause (xxxix-a) thereof, enables a Zila Council to hold cattle fairs, shows and markets in the limits of its area in accordance with the bye-laws and also permits a Zila Council, which has been holding cattle fairs, shows and markets in the limits of the local area of an urban local council in the district before January 17, 1980, to continue to do the same in accordance with such bye-laws. Correspondingly, a Zila Council has expressly been precluded from holding Bakar Mandis for the sale of cattle meant for slaughter in the limits of the local area of an urban local council. There is a further conclusion contemplated by the third proviso to the above clause namely, that if an urban local council had been holding cattle shows and fairs before January 17, 1980, within the limits of its local area, and 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 the local area of that council. Such is the effect of clause (xxxix- a) of the section under discussion.
' Then comes section 62 of the Ordinance, bearing the title Private Markets, wherein subsection (1,A) was introduced, per Punjab Ordinance XXII of 1991, which contemplates that notwithstanding anything contained in subsection (1) of section 101 but subject to sections 51 and 106 of the Ordinance no cattle market, private or otherwise, shall be held within the area of an urban local council'. This seems to have carried an intendment to off-set the effect of Taj Din v. Zilla Council, 1989 M LD 270 and Taj Din v. Zilla Council PLD 1990 Lah 269, which, in the then state of law, had opined that there was nothing in sections 51 and 62 of the Ordinance to restrict the licensing of private markets by the urban councils, within the areas of their own jurisdictions. Even so, it will be noticed that section 63, which has not been excluded, by subsection (1-A), aforesaid, allows an urban local council to provide and maintain within or outside its local area one or more slaughter houses for the slaughter of animals or sale of any specified description of animals'. Arguably, here, the expression "Sale of any specified description of animals" has a nexus with the animals intended for slaughter or use within the area of an urban local council. This, in turn, is calculated to be a function of such a council and has never been taken away. The next provision in the Ordinance viz. Section 101, which in its origin, permitted the holding of public markets by urban councils, inter alia, for the sale of animals etc., as of now, stands controlled by subsection (1A) of section .62, in virtue of which no cattle market, private or otherwise, could any longer be established within the local area of an urban council. Now, it will be noticed that the word "animals" in these sections carries broader connotations than the word "cattle". Thus, whatever is not covered by the concept of cattle may yet be marketed by an urban local council, subsection (1-A) of section 62 (ibid) notwithstanding. Still a "Cattle market" stands clearly excluded, except to the extent shown to be saved. For this purpose section 106 of the Ordinance is material, which, following upon the substitution of subsection (1) thereof, per Punjab Ordinance X of 1982, prohibits an urban local council from holding cattle shows and fairs within the limits of its local area, though expressly mandating that the exclusion would not cover a Bakar Mandi(s) "for sale of cattle meant for slaughter", subject to the charge of such fee per cattle, head sold as the bye-laws may provide. The proviso appended to the amended section 106(1) reiterates what, in its third proviso, subsection (xxxix-a) of section 51 had correspondingly provided. These complementary and even matching provisions have already been reproduced.
Significantly, a Bakar Mandi (in section 106) can be none other than a Bakar Market, as has been observed in Muhammad Amin v. Town Committees Zafarwal. Besides, while it was urged before us by Mr. Asadullah Sidddiqui, for the respondent No,4, that a Bakar Mandi, in its pristine sense, would cover only goats and sheep, the connotations appear to have been broadened, when section 106(1) mandates that the holding of Bakar Mandis, visulised by that provision, would be "for sale of cattle" though such should be restricted to cattle meant only for slaughter and plausibly not for any other purpose. The word "cattle" itself stands defined by section 3(1)(v) to mean "cows, buffaloes, bulls, oxen, bullocks, heifers, calves, camels, sheep and goats". In effect, therefore, section 106(1), where it mandates the holding of Bakar Mandis for sale of cattle clearly contemplates sale of cattle, as defined and in the category would be included all the above enumerated animals The only restriction is that such Bakar Mandis, for the sale of cattle, shall be restricted to cattle, designaged for slaughter within the area of an urban local council. ,In this view of the matter, by whatever name called, a market authorised by an urban council may be allowed to deal in cattle freely, provided always that such cattle are meant only for slaughter within the area of its operation. It, therefore, follows that the controversy pertaining to the question whether the contract in dispute was organizing a fair or a show or a market is not materially relevant so long as what actually takes place is a Bakar Mandi designed to cater to cattle, intended for slaughter within the limits of Town Committee Pindi Bhattian.
' Let us now see whether the above enunciation does not detract from such of the powers and jurisdiction as the Ordinance has proceeded to confer on Zila Councils. As already hinted, the object of the law, inter alia manifested by section 51 of the Ordinance seems to be to ensure that the rural areas in the province are enabled to rear animals generally, for use and marketing. In short, such provisions are designed to encourage animal husbandry in all its facts. With this objective in mind, powers, by no means exclusive, had been per section 101, conferred on urban local bodies to hold fairs shows and markets for sale, purchase etc. Of animals. The provision was further curtailed, but not totally. Retracted later. The ensuring result is that of the general powers and jurisdiction conferred on Zila Councils only a portion has been carved out for recourse by the urban councils. As already stated, contextually, the concept of an animal is much broader than that of cattle. Besides, but on the other hand, cattle for slaughter are but a portion of cattle generally. It, therefore, emerges that prize animals, young ones of cattle, not yet ripe for slaughter etc. Would be clearly outside the ambit of cattle earmarked for slaughter and while, subject as above, lying within the exclusive purview of a zila council, would remain excluded from a Bakar Mandi, properly so called. Even so, upon a plain reading of sections 51, 62, 63, 101 and 106 of the Ordinance, urban councils may yet hold markets covering animals, other than cattle, provided that such do not tantamount to fairs or shows, to the extent precluded by law and provided further that the exercise is strictly within the four corners of their functions, as curtailed by later day amendments.
' At this stage, we would like to advert to an argument of Mr. Asadullah Siddiqui that even upon the foregoing construction of law the Town Committee, Pindi Bhattian was in no position to contract out the lease of even a Bakar Mandi since no bye-laws for a charge to be made in terms of section 106(1) have been framed by the Committee todate. We have been informed by Mr. Muhammad Anwar Bhindar, the Committee's learned counsel, that such bye-laws pertaining to markets are already in existence and being given effect to. Even if that be not so, it seems to us that the condition of framing of bye-laws, above referred, is only an enabling and directory provision. This conclusion is strengthened also because such bye-laws are to be framed not by a higher outside agency but by the councils themselves. The bye-laws should no doubt be framed in due course but awaiting that a tentative charge can be levied by the town committee in order to ensure that merely for want of bye-laws valuable public revenue is not lost to the local body concerned. We would, therefore, expect that subject to such tentative charge, if that became necessary, due by- laws would be framed without unnecessary loss of time.
Having said as much, we are disinclined to agree with the position taken by the respondent No,4 that, in essence and in substance, the lease granted to the petitioner was unlawful since the same permitted the holding of a cattle market which was prohibited by law. Such a contract in our estimation can be given effect to for the limited purpose of a Bakar Mandi in terms discussed. Even so, we cannot disagree with the Deputy Commissioner/Controlling Authority, Hafizabad that the yearly contract awarded to the petitioner was for a very paltry sum when it is considered that the respondent No,4 obtained his own contract for several times that figure. Indeed, we have been informed that at one time a similar contract had gone for something over Rs,207,000.
' In contemplation of the foregoing reasons we had converted this petition into an appeal and disposed it of in terms recorded below: "For reasons to be recorded separately, we convert this leave petition into an appeal and dispose of the same in the following terms:
(1) The lease-hold rights conferred by the Town Committee Pindi Bhattian on Malik Riaz Ahmed (petitioner), recalled by the Deputy Commissioner/Controlling Authority, Hafizabad, as maintained by the High Court, would be subject to a limited reauction between such Riaz Ahmed and Haji Muhammad Akhtar (respondent No,4). The same would be termed as lease of Bakar Mandi for the sale of cattle, meant for slaughter within the area of Town Committee, Pindi Bahttian, the period of lease being 1-11-1998 to 30-6-1999, the limited auction taking place at the premises of the Town Committee, Pindi Bhattian on 29-10-1998 during working hours. The auction, with reserve price of Rs,210,000, would be conducted in such manner that once the highest bid is registered between the two contesting parties, each of such parties would be free to submit a sealed bid on the spot, to be opened in the presence of both such parties immediately, the contract going in consonance with the higher of the two bids, thus, sealed and submitted.
(2) Before the above limited auction takes place, the two contesting parties would make payments/deposits in accordance with the applicable procedure/rules. Likewise, the successful bidder shall have to make payments for the awarded contract in consonance with the applicable rules, the contract at all material times abiding by the relevant law.
(3) The Bakar Mandi to be organised as above by the successful bidder would be restricted to each Tuesday of a week and would remain confined to the sale of cattle meant for slaughter within the area of the town committee upon charge of applicable fee by the lease-holder.
(4) Regarding the period 1-7-1998 to 31-10-1998, the town committee would retain proportionate amount from the contract money of Rs,72,000, refunding or adjusting the balance, as the case may be, depending upon the fact whether the contract has been given pursuant to the limited auction to one or the other of the parties.
(5) So far as the future leases for the said Bakar Mandi are concerned, such as well may be confined to Tuesdays in a week alone besides being restricted to the area of the town committee and to cattle meant for slaughter within such area. This remains variable subject to law.
' Order as above, the parties being left to bear their own costs."