' JAVED IQBAL, C.J.--- This is a Constitutional petition preferred on behalf of Haji Raz Muhammad and 9 others under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:-- "It is, therefore, prayed that in view of the submissions made hereinabove notice impugned may kindly be declared illegal, unlawful, without jurisdiction as well as of no legal effect and consequence. Any other relief which this Honourable Court may deem fit and proper may also be awarded in the interest of justice."
2. Briefly stated the facts of the case are that petitioners are dealing in business of car dealing/rent a car on professional basis and in order to carry their, business show-rooms have been established at Yate Road and Fatima Jinnah Road, Quetta. They have also got themselves registered with the concerned authorities and are making requisite payment of Registration Fee against valid challans. They have also made payment of taxes to the Quetta Municipal Corporation in its tax branch which has now been stopped as tax branch has refused to receive the same. It is further the case of petitioners that they have established show-rooms in the places for the purpose of display cars lawfully owned by them within their own place of parking. A few other persons who had their show-rooms at Yate Road and Fatima Jinnah Road, Quetta and in the adjoining streets had been parking their vehicles on the road side for the reason that they were having show-rooms on rental basis and had no place to park their vehicles belonging to them but they have now been shifted to other places and there had been no complaint of whatsoever in nature with regard to the petitioners particularly for parking their vehicles on the road but amazingly the District Magistrate has issued a notice contending that the show-rooms of the petitioners in the midest of residential area is a constant source of traffic hazard whereby causing lot of inconvenience and nuisance to the general public and the owners of the' show-rooms are not desisting from illegal practising of parking of all types vehicles and motorcycles on either side of the road indiscriminately and continue to indulge in this unlawful act despite repeated warnings causing unlawful obstruction and nuisance and thus, notice under sections 133---135, Cr.P.C. Has been issued calling upon the petitioners to remove their show-rooms from the existing place as mentioned hereinabove within a period of 15 days, failing which legal action as laid down under section 136/137, Cr.P.C. Shall be taken. Being aggrieved and dissatisfied the said notice has been assailed being unlawful and illegal by means of this petition.
3. It is mainly contended by Mr. K.N. Kohli, Advocate that notice issued by respondent being contrary to facts, law as well as principles of natural justice is liable to be declared illegal as the petitioners have never violated any provisions of Motor Vehicles Ordinance, 1965 with regard to keeping/maintaining or establishment of show-rooms to carry on their business and moreso, that they are paying. Regularly the Registration Fee in pursuance of the Balochistan Finance Act, 1996 and as such they cannot be compelled to remove their show-rooms especially when they are not violating any provisions of law or making nuisance or obstructing traffic and, thus, the notice in question is liable to be struck down by issuance of writ. It is urged with vehemence that they are making payment of their utility bills on commercial basis and thus, the abovesaid vicinity cannot be termed as noncommercial or residential and, therefore, the question of any public nuisance in commercial area does not arise. It is argued that on one side of the road parking is allowed and there is no prohibition for parking the vehicle on one side and thus, the question of any traffic hazard does not arise which has been made a base for the issuance of notice under sections 133 and 135, Cr.P.C. And, therefore, is liable to be declared without jurisdiction. It is also argued with firmness that it was mandatory for the District Magistrate to have issued conditional notice at first instance under section 133, Cr.P.C. Which could have been made absolute after completion of certain mandatory prerequisites and recording of evidence to show that public nuisance has in fact been created by the petitioners while carrying on their business but on the contrary the controversy has been decided finally without conducting any enquiry worth the name and thus, the notice in question has absolutely no legal footings. In order to substantiate his version the following authorities have been referred:-- ' 1995 PCr.LJ 391, PLD 1962 (W.P.) Lah. 468, 1998 PCr.LJ 1457, 1998 SCM R 1616, 1972 SCM R 395, 1973 PCr.LJ 26, PLD 1957 (W.P.) 854, PLD 1997 SC 342, PLD 1985 Lah.
353.
4. Mr. Ghulam Mustafa Mengal, Advocate learned Assistant Advocate-General appeared on behalf of State and strenuously controverted the view-point as canvassed by Mr. K.N. Kohli, Advocate by contending that the impugned notice has been issued after completion of all necessary legal requirements under sections 133---135, Cr.P.C. And no illegality whatsoever has been committed. It is pointed out that the petitioners have established their show-rooms in residential area and have created traffic hazard besides public nuisance in the residential area and in spite of various requests they have refused to shift their business to Hazar Gunji where suitable places have been allocated for the purpose. It is also argued that numerous vehicles are being parked on Yate Road and Fatima Jinnah Road, Quetta and it is impossible for the pedestrian to cross the road and thus, they have no free access to their houses in a smooth manner. It is contended that no reply whatsoever has been given regarding the show-cause notice and thus, it could have been made absolute in view of the provisions as contained in section 135, Cr.P.C. In order to substantiate his version learned Assistant Advocate-General referred the report of Mayor, Quetta Municipal Corporation and Superintendent Police Traffic showing the nature of nuisance which has reached up to an alarming position. It is urged with vehemence that no licence to carry on such business was ever issued in favour of the petitioners and no tax at the moment is being received by the tax branch of Quetta Municipal Corporation as alternate place has been provided to the petitioners for establishing their show-rooms but they have failed to shift their business. The learned Assistant Advocate-General has mentioned the total area of different show-rooms pertaining to petitioners showing that it was not possible to get the vehicles parked inside and the major portion of the road of the vicinity have been encroached. It is pointed out that notice was issued on 1-2-2000 and a meeting was also convened in-between the petitioners and that of District Magistrate on 14-2- 2000 but since the petitioners were not paying any heed to any reasonable suggestion, therefore, their show-rooms were sealed in the interest of traffic and general public. The learned Assistant Advocate-General refuted it in a categoric manner that any show-room was built or constructed by the petitioners but majority of the show-rooms pertained to private persons which are being used for the unlawful trade/business.
5. We have carefully examined the respective contentions as agitated on behalf of petitioners and for State in the light of relevant provisions of Cr.P.C. We have minutely perused the reports of Superintendent Police Traffic and Mayor, Quetta Municipal Corporation. The pivotal question which needs determination seems to be as to whether the mandatory formalities and prerequisites as envisaged under sections 133 to 143 have been complied with or not. Before dilating upon the said question, let we mention here at the outset that no arbitrary action can be taken and a sequencewise action is reqqired to be taken which runs as follows:-- "It is only on proof of urgency, or imminent danger to the public interest that action under this section et seq can be taken and that these provisions should not be allowed to be used as a substitute for litigation in Civil Courts. The power can be exercised either on receipt of a police report or other information, and arise under the six circumstances enumerated. It results in a conditional order (section 133). The order can be served as if it were a summons (section 134). On the service being effected, the person concerned may carry out the order. In which case the proceedings will come to an end (section 135(a)). If he does not, he shows cause against the order or applies to the Magistrate for the appointment of a jury to try whether the order is reasonable and proper (section 135(b). If the person does not comply with the order and fails to appear before the Magistrate, the order is made absolute (section 136). If he successfully shows cause, the order discharged; but if the cause shown is not satisfactory, the order is made absolute (section 137).
There is another line of action open, to the person. He may appear before the Magistrate and claim a jury whereupon the Magistrate appoints a foreman and one or two jurors and asks the person to appoint an equal number of jurors (section 138), if the jury find against the person, the order will be made absolute, if they suggest any modification which is accepted by the Magistrate, the order will be made absolute subject to such modification. If the jury find in favour of the person, the proceedings will come to an end (section 139), if the person disputes the existence of any public right in any way, river, channel or place, the Magistrate will hold a preliminary inquiry, and if he finds the contention good, the question will be left to be determined by a Civil Court. If there is no substance in the contention the inquiry will proceed (section 139-A). When an order is made absolute under sections 136, 137 or 139, the person will be called upon to carry it out within a specified time; if he fails to so carry out, he can be prosecuted under section 188 of the Pakistan Penal Code (section 140(1)). It is also open to the Magistrate to carry out the order and recover costs from the defaulter (section 140(2)). If the person fails to appoint jurors or the jury fail to deliver their verdict in time, the Magistrate may himself pass the final order (section 141). In case of imminent danger or injury of a serious kind to the public, the Magistrate may forthwith issue an injunction to the person (section 142). The Magistrate has also the power to order any person not to repeat or continue a public nuisance (section 143)."
' A careful scrutiny of the proceedings and contents of notice issued by the learned District Magistrate would reveal that the provisions of sections 133 and 135, Cr.P.C. Have been considered as interchangeable or synonymous which is not the correct legal position. The notice duly issued in this regard is hereby reproduced for ready reference:-- Notice ' To ' Whereas it has been made to appear to me that the presence of showrooms in the midest of residential areas in various parts of the city is a constant source of traffic hazard thereby causing lot of inconvenience and nuisance to the general public.
' And whereas the past experience has shown that the owners of these show-rooms are not desisting from the illegal practice of parking of all types of vehicles and motorcycles on either side of the roads indiscriminately and continue to indulge in this unlawful act despite repeated warnings and in consequence thereof obstruction in the normal flow of traffic at all such places is continuing. And whereas there are strong reasons to believe that this continuing illegal practice cannot be stopped unless relevant provisions of the law are invoked to save the public from further nuisance.
' And whereas this unlawful obstruction and nuisance is, therefore, essentially required to be removed from all the residential areas of the city.
' Now, therefore, I Athar Hussain Khan Sial, District Magistrate, Quetta in exercise of powers conferred on me under sections 133 and 135, Cr.P.C. Serve this notice on you, in the exigencies of public welfare and service, requiring you to remove your showroom from the existing place within a period of fifteen (15) days from the date of issue of this notice, failing which legal action shall be taken as laid down under sections 136-137, Cr.P.C.
District Magistrate, Quetta.
' A bare perusal of the above reproduced notice would reveal that an absolute order has been made by learned District Magistrate instead of passing a conditional order as envisaged under section 133, Cr.P.C. It is worthmentioning here at this juncture that there is a considerable difference in-between conditional order and that of an absolute order. It is well-settled by now that a general or an unconditional order cannot be made and it should not be vague, indefinite or ambiguous but should be such as to afford by its terms to the person to whom it is directed what he is to do in order to comply with it. An order passed under section 133 must be conditional and not absolute in first instance. An absolute order cannot be made in absence of a person affected without resorting to provisions of sections 134 and 137, Cr.P.C. PLD 1981 Azad J&K 7. It is to be noted that a conditional order B passed under section 133, Cr.P.C. Can be made absolute only if and when the procedure contained under sections 134, 135, 136 and 137, Cr.P.C. Is followed which has been escaped unnoticed. Let us mention here at this juncture that before making the conditional order an absolute one proper C opportunity of hearing is to be afforded to the party affected and the learned District Magistrate is bound to hear his objection and in absence of the affected party the conditional order could be made absolute if circumstances so justify. The District Magistrate cannot act in accordance with his own whims and wishes and there should be some concrete evidence for the formation of his opinion. We have 'not been persuaded to agree with Mr. K.N. Kohli, Advocate that prior to issuance of notice recording of evidence would be must for the simple reason that words "if any" has been used after the words "on taking such evidence" which depicts element of discretion which is further confirmed by the words "as he thinks fit" meaning thereby that recording of evidence prior to issuance of notice is not mandatory. The nature of formalities enumerated in the relevant sections prior to issuance of notice and thereafter, are not identical and similar. In this regard we are fortified by the dictum laid down in AIR 1931 All. 257 and 32 Cr.LJ
565. It must however, be kept in view that it is a special sort of jurisdiction and must not be exercised in a mechanical manner which must be exercised with all possible fairness and reasonable precautions. It hardly needs any elaboration that we while exercising our Constitutional jurisdiction cannot determine that public nuisance has been caused or otherwise as its existence or non-existence depends upon various factors and consideration falls within the jurisdictional domain of Magisterial Court which should not be encroached upon without sufficient lawful justifiable excuse. We are not impressed by one of the prime contentions of Mr. K.N. Kohli, Advocate that neither any specific complaint whatsoever was filed by the inhabitants of the area nor any definite information was available to District Magistrate, thus, no notice could have been issued for the reason that a Magistrate may exercise the powers as conferred upon under sections 133 to 143 on a police report or other information. The words "or other information" are capable enough to meet all sort of such eventualities and simultaneously permit a Magistrate to take action under this section on information derived from any source in another capacity. In this regard reference can be made to AIR 1917 Cal. 207 and 17 Cr.LJ 409 (DB). Mr. K.N. Kohli, Advocate has attempted to define the Highway and Road, but suffice it to say that a public road will comprise all the ground forming part of the road, whether metalled or not over which the public have a right of way AIR 1914 All. 341, 37 All. 9 (DB) and 7 Cal. Rep.
272. It, thus, hardly makes any difference which of the part of the road has been encroached upon for permanent parking. As mentioned hereinabove, the question as to whether there has been an obstruction amounting to public nuisance is a question of fact which is required to be decided keeping in view all the surrounding circumstances and merits of the each case. It is, however, to be noted that, any encroachment, however, small, on a public road must inevitably result in obstruction to persons who may have occasion to use such road, and is, therefore, a public nuisance. AIR 1927 Pat. 285 and AIR 1925 Lah.
454. The contention of Mr. K.N. Kohli, Advocate that the petitioners are running their own business within their own private property and as such the question of public nuisance does not arise seems to be devoid of merit if examined in the light of principle that the user of one's own property may be a public nuisance is in accordance with the maxim "sic utere tuo ut alienum non-laedas" (so use your own property as not to injure the right of another.). It can, thus, safely be inferred that use of private property may give rise to a public nuisance to those who are living in the same vicinity. In this regard 25 Cal. 425 (DB) can be referred. We may reiterate once again that the question whether an act or omission causes or must necessarily cause injury, danger or annoyance is 1 one of fact which depends upon the circumstances of each case and no yardstick can be fixed.
5. We are conscious of the guarantees as provided under Articles 18 and 23 of the Constitution of Islamic Republic of Pakistan but it must not escape unnoticed that the addition of the words "conducting of" before the words "trade or occupation" by the amendment of 1933 makes it clear that the section applies not only to cases where the trade or occupation is in itself injurious to the community, but also to cases where the conduct of the trade is injurious to the community. AIR 1930 Cal.
757. There is no cavil to the proposition that the Magistrate has jurisdiction to regulate the manner in which a trade is to be conducted in such a way as not to be a nuisance to the common community.
6. As mentioned hereinabove, a comprehensive procedure has been laid down in Cr.P.C. To deal with such problems which has been discussed and reported in 1973 PCr.LJ 26 which is reproduced hereinbelow for future guidance:-- "Section 133, Cr.P.C. Requires that any Magistrate, -who is informed of any trade being carried on by any one, should pass a 'conditional order' requiring the person carrying on such trade or occupation to desist from carrying it on or to regulate in any particular manner directed by him.
Section 134, Cr.P.C. Requires that such 'conditional order' should be served on the person concerned in the manner mentioned therein.
' Section 135, Cr.P.C. Provides that the person against whom the 'conditional order' is made shall either act as directed by the said order or appear in accordance therewith and show cause against the same.
' Section 136, Cr.P.C. Provides that if such a person does not act in accordance with the provisions of section 135, Cr.P.C. He shall be liable to the penalty prescribed in that behalf in section 188, Cr.P.C.
And the 'conditional order' shall be made 'absolute'. Section 137, Cr.P.C. Provides that if such a person appears and shows cause against the 'conditional order', the Magistrate shall record evidence in the matter and if he is satisfied that the order is not reasonable and proper, he shall not take any further proceedings, but if he is not so satisfied, the 'conditional order' shall be made 'absolute'.
(5) A reading of .These sections goes to show that it is only a 'conditional order' which may be made absolute. Any order passed by the Magistrate under section 137, Cr.P.C. Purports to be a final order which does not make a 'conditional order' absolute is not a valid order. It follows therefore, that where the Magistrate cannot pass a final order."
' As mentioned hereinabove, the issuance of conditional order is must before it could be made absolute. In such view of the matter we hereby direct that the show-cause notice issued by the District Magistrate shall be treated as conditional notice and petitioners will show cause against the said notice that why it should not be made absolute and in case of their failure to show cause the order shall be made absolute if the show cause is not satisfactory the order shall be made absolute and if the petitioners successfully show cause the notice shall be discharged which is to be decided by the learned District Magistrate keeping in view all the surrounding circumstances, information and report as may be deemed fit and proper and in accordance with law as discussed hereinabove after hearing the objection of the petitioners and affording proper opportunity to substantiate their claims and objections and meanwhile the show-rooms shall be unsealed with the direction that till the action is finalized no parking shall be made on the road side and the petitioners shall confine their activities within the limits of their show-rooms and in case of any violation the District Magistrate and S.P., Traffic may take any action as is deemed fit and proper. It may not be out of place to mention here that in suitable cases the order initially made may not only be set aside but may be modified and the modified order be allowed to stand. The petition is accordingly disposed of.