' MALIK MUHAMMAD QAYYUM, J.---This judgment shall dispose of W.P. Nos.1101 of 1982, 6220 of 1993, 6221 of 1993, 7717 of 1993, 8343 of 1993, 14228 of 1993, 7224 of 1995 and 20396 of 1997, in all of which the learned Single Judge of this Court has referred the following question to the Division Bench:-- "Examination in detail of various provisions of Cantonments Act, a central legislation and those of Punjab Agricultural Produce Markets Ordinance, 1978, is required so as to find out whether both these enactments relating to local service government can stand together or to the extent of cantonments, the provisions of Ordinance of 1978 are inapplicable. This question should appropriately be referred to a Division Bench in view of the view expressed by a learned Single Judge in the case of Khan Umar Khan."
2. The dispute between the parties has arisen in the following circumstances: ' The petitioner in W.P. No,1101 of 1982 is a Market Committee, established under the Punjab Agricultural Produce Markets Ordinance, 1978 inter alia for the areas falling in the Shorkot Cantonment. It feels aggrieved of the action taken by the Cantonment Board, Shorkot pursuant to the order passed by the Cantonment Board on 20-2-1982 by which the petitioner-Committee was restrained from functioning in the area falling within the limits of Shorkot Cantonment and a direction was issued to the commission agents and dealers not to pay any market fee to the petitioner-Committee or the ground that no Market Committee can be set up in the area forming part of Cantonment in view of the provisions of Cantonments Act, 1924 nor can the Provincial Government set up any such Committee in Cantonments. The other Constitutional petitions have been filed by different individuals who have been asked by the Market Committee to pay market fee to them. Their case is that as the area in which they are working falls in a Cantonment they are not liable to pay any market fee to the respondent-Market Committee which had been set up under the Punjab Agricultural Produce Markets Ordinance (XXIII of 1978).
3. The crux of the dispute between the parties is as to whether the provisions of the Punjab Agricultural Produce Markets Ordinance, 1978 can be applied to the areas which form part of a Cantonment and are administered by the Cantonment Board under the Cantonments Act, 1924.
4. The learned counsel for the petitioner has heavily relied upon the judgment of a learned Single Judge of this Court in Khan Umar Khan v. Market Committee, Jhelum (PLD 1972 Lah. 497) to contend that notwithstanding that Federal Legislature is empowered to regulate the constitution of local authority in the cantonment areas but that does not mean that those areas are completely closed for the purpose of legislation. In that case, the facts were that the petitioners in that cases were being prosecuted under rule 29(4) and rule 29(9) framed under the Punjab Agricultural Produce Markets Ordinance, 1978 for the evasion of market fee. The position taken up by the petitioners was that they were not liable to pay any market fee in respect of the areas forming part of Cantonment in view of the Cantonments Act, 1924 which confers jurisdiction to administer and set up markets in the areas falling in the Cantonment. The learned Single Judge was, however, of the view that there was no inconsistency between the Cantonment Act, 1924 and the Agricultural Produce Markets Act, 1939 and as such agriculture was a subject exclusively within the domain of Provincial Legislature, it should be presumed to have all incidental powers regarding the constitution, establishment and regulation of market committees and levy of fees etc. On these bases it was held that the market committee in question was validly constituted under the notification issued by the Provincial Government under section 4 of the Agricultural Produce Markets Act, 1939.
5. The learned counsel for the respondents has, on the other hand, contended that the Cantonments are set up by the Federal Government under the provisions of Cantonments Act, 1924 which areas are administered by the Cantonment Board constituted under the Cantonments Act, 1924 which was a Federal law and in case of any inconsistency between the said Act and a Provincial law, like Punjab Agricultural Produce Markets Ordinance, 1978, the former will prevail in view of Article 143 of the Constitution of Islamic Republic of Pakistan, 1973.
6. According to Article 142 of the Constitution, the Federal Legislature alone has a right to legislate upon the subjects mentioned in the Federal List given in the 4th Schedule to the Constitution while both the Federal Legislature and the Provincial Legislature can legislate on a subject which appears in the Concurrent List. The residue, however, vests exclusively in the Provincial Legislature.
Article 143 provides that if any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Parliament which it 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 Parliament whether passed before or after the Act of 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 repugnancy, be void. The question which, therefore, arises in the present case is as to whether it was the Federal Legislature which alone had the power to legislate in respect of the areas forming part of the Cantonment or can the Provincial Legislature also legislate in respect of those areas in certain cases.
7. Reference to Entry No,2 of the Federal Legislative List given in the 4th Schedule to the Constitution would show that the Federal Legislature cannot only maintain Military, Naval and Air Force works but is also entitled to legislate on the subject of local self-Government in cantonment areas, the constitution and powers within such areas of the Cantonment Authorities, the regulation of house accommodation in such areas, and delimitation of such areas. Since this subject falls within the Federal Legislative List, it is the Parliament alone which can legislate on the subject. It is to be found out whether the provisions of the Punjab Agricultural Produce Markets Ordinance, 1978, which is a Provincial Statute are in conflict with the Federal Law like Cantonments Act, 1924. It is well-accepted principle of interpretation of Statutes that Courts should so far as possible harmonise the Statutes which are apparently in conflict with each other and every effort must be made to uphold both the laws. With this object in view, now the provision of the two laws be examined. The Cantonments Act, 1924 has been promulgated by the Federal Government, section 3 of which authorises the Federal Government to declare any place or places to be Cantonments for the purposes of Cantonments Act, 1924 and all other enactments for the time being in force. Subsection (3) of section 3 provides that when any place is declared as a cantonment for the first time, the Federal Government may until a Board is constituted in accordance with the provisions of the Act, by an order make any provision which appears to be necessary to it for administration of the Cantonment or for constitution of the Board. Section 10, provides that for every Cantonment, there shall be a Cantonment Board and an Executive Officer. The functions and powers of the Board are enumerated in the aforesaid Act. For the present purposes, the relevant provisions are contained in Chapter 12 of the Cantonments Act, 1924. Section 198 of the Cantonment Act provides that the Cantonment Board may provide and maintain public markets and public slaughter houses in such numbers as it thinks fit, together with stalls, shops, sheds, pens and other buildings for the use of persons carrying on trade or business in or frequenting such markets or slaughter houses and may provide and maintain in any such market, buildings, places, machines, weights, scales and measures for the weighment or measurement of goods sold therein. According to section 199 of the Act, no person shall, without the general or special permission in writing of the Board, sell or expose for sale any animal or article in any public market. Section 200 of the Act confers upon the Board to levy any rent or fee for the use or occupation of any stall, shops, sheds or pens in a public market or a public slaughter house or for the right to expose goods for sale in a public market.
Section 202 of the Act deals with private market and slaughter houses. It provides that no place in a cantonment other than public market shall be used as a market and no place in a cantonment other than public slaughter house shall be used as a slaughter house unless such place has been licensed as a market or slaughter house, as the case may be, by the Board. The conditions of grant of licence for carrying on business in a private market are to be determined by the Cantonment Board which is authorised to charge such fee, as it thinks fit in that respect.
8. From the above, it is evident that right to set up a public market or a private market has been granted in clear terms by the Cantonments Act, 1924, to the Cantonment Board. It is also provided in the Act that no one else can set up a market within the areas forming part of cantonment except with permission of the Board which has the power to levy fee for the use of markets or for sale of the goods in the cantonment also vests in the Cantonment Board.
9. So far as the Punjab Agricultural Produce Markets Ordinance, 1978 is concerned, it, no doubt, empowers the Provincial Government to establish market committees. Under section 4 the Provincial Government may declare any area notified under section 3 to be a notified market area for the purposes of the Ordinance. Section 5 enables the Market Committee to issue licence to the dealers under the Ordinance. The constitution of the market committee has been provided in section 8, while duties of the market committee are enumerated in section 9 of the Ordinance.
Section 35 of the aforesaid Ordinance empowers the Provincial Government to frame rules in respect of various matters mentioned therein. In the exercise of this power, the Provincial Government has framed the Punjab Agricultural Produce Markets (General) Rules, 1979 which provide for issuance of licence and other matters in respect of the markets set up by the market committees. The rules also provide the penalties which can be levied on any person who violates the provisions of the Ordinance.
10. If the two laws are considered in juxtaposition to each other, it would be seen that both the laws empowered two different authorities to set up and administer markets and to charge fees for issuance of licences or carrying on business therein. The power granted to the two authorities under the two laws is overlapping. As mentioned above, no person can establish a market private or public except with the permission of the Board and on payment of such fees of the said Board as may have been fixed by the Cantonment Board. The Punjab Agricultural Produce Markets Ordinance, 1978, on the other hand, authorises the Provincial Government to set up markets in the market areas and to charge such fees as may have been levied. The inconsistency and repugnancy between the two provisions is quite obvious. If such a person is carrying on his business in a market set up in a Cantonment in accordance with the Cantonments Act, 1924, and to obtain a licence from the Board, he would be violating the provisions of the Punjab Agricultural Produce Markets Ordinance, 1978 and the Rules. As already mentioned above, the subject of cantonments, their regulations and constitution and administration is covered by the Federal Legislative List and, therefore, the Provincial Legislature could not legislate in respect of areas covered by Item No,2 of the 4th Schedule to the Constitution. As the Contonments Act, 1924 is not only a Federal law but is also a law which specifically deals with areas forming part of the cantonment, it must prevail over the Punjab Agricultural Produce Markets Ordinance, 1978, both in view of Article 143 of the Constitution and on the principle that special law overrides the general law. While the right to set up the Market Committees undoubtedly vests in the Provincial Government for the areas notified by it, it cannot declare any area which is a part of the cantonment, to be notified areas under the Punjab Agricultural Produce Markets Ordinance, 1978, inasmuch as no market can be established in the cantonments except by or with the permission of the Cantonment Board which alone has the jurisdiction to do so in view of Cantonments Act, 1924.
11. With great respect to the learned Judge, we may state that in the case of Khan Umar Khan supra, this aspect was not examined in its true perspective. Although the inconsistency between the two laws, so far as the cantonments are concerned, was manifest, the learned Judge proceeded to hold that the market committee can establish a market in the area forming part of the cantonment. For the reasons given above, we are unable to subscribe to that view. To us it is clear that right to set up market in the Cantonment vests in the Cantonment Board in view of various provisions of Cantonments Act, 1924 and the Provincial Government cannot notify any area of the Cantonment Board to be a market under section 3 of Ordinance of 1978 nor can any market be set up in that area except by or with the permission of the Cantonment Board. Similarly, no person can carry on business of sales of goods in a market except with the permission of the Cantonment Board. Inconsistency between the two laws being irreconcilable the former Act has to prevail. We are guided in this respect by the announcement of the Supreme Court in Cantonment Board through Cantonment Executive Officer v. District Sanitary and Food Inspector, Peshawar and 3 others (1993 SCMR 941). In that case, on the subject of preparation, adulteration of food and ancillary matters, there were two enactments in the field, one being provincial legislation known as N.-W.F.P. Pure Food Ordinance, 1960 and the other being Cantonments Pure Food Act, 1966, enacted by the Federal Legislature. Both the laws empowered different functionaries to exercise the powers under the two laws. The District Sanitary Food Inspector, Peshawar, who was a functionary under the provincial law attempted to carry into execution and enforce its provisions in the Cantonment Area, Peshawar, to which an objection was taken by the Cantonment Board in writing, on the ground that the Cantonment areas stood excluded from the operation of the Provincial laws and is governed by the Federal laws on the subject. The Cantonment Board thereupon filed a Constitutional petition before the Peshawar High Court for a declaration that respondent No,1 i,e, District Food and Sanitary Inspector had no jurisdiction to operate in the area of cantonment, This petition was dismissed by a learned Single Judge of Peshawar High Court as being incompetent.
The matter was then taken up by the 'Cantonment Board, Peshawar to the Supreme Court of Pakistan. The Supreme Court after noticing the provision of Article 143 of the Constitution was pleased to observe as under:-- "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 Majlis-e-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 Majlias-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 co-exist.
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 persuance 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 hauled 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 harmonise 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 Provincial Statute, so far as Cantonment area is concerned, shall have to give way to the Cantonments Pure Food Act, 1966".
' The ratio of the above case is clearly applicable to the present case also.
12. The other judgment which is of relevance has been rendered by a Division Bench of Sindh High Court in M/s. Zeshan Builders v. Karachi Building Control Authority etc. 1992 MLD 2259. There a conflict arose between the Karachi Buildings Control Authority and the Cantonment Board. On a comparison of the provisions of the Cantonments Act with Sindh Buildings Control Ordinance, 1979, it was observed that in view of Article 142(a) of the Constitution of Islamic Republic of Pakistan, 1973, the provincial law would not be applicable to the buildings constructed or intended to be constructed within the territorial limits of a Cantonment.
' In view of what has been said above, W.P. No,1101/82 is dismissed while other Constitutional petitions mentioned in para. 1 of this judgment are allowed with no order as to costs.