FARIQ MUHAMMAD KHOKHAR, J.--- This judgment shall dispose of Writ Petitions No. 4496/85, 186772/97, 19152/97, 194118/97, 19976/97 and 20005/97 as they involve same questions of law and fact.
2. In all these writ petitions, the petitioners are the owners of mulch cattle maintaining their cattle within the limits of the .Metropolitan Corporation, Lahore. They called in question the directions issued by the Metropolitan Corporation, Lahore, and appearing in the newspaper dated 23.7.1997 declaring the local area of the Metropolitan Corporation as a prohibited Zone and prohibited the keeping and maintaining of cattle in the said Zone. Simultaneously, the validly of order dated 26.7.1997 passed by the Additional District Magistrate (General). Lahore, under Section 144 Cr.P.C.
Prohibiting the keeping of cattle/Buffaloes/Cows in Lahore City for a period of two months has also been called in questioned.
3. The background giving rise to the filing of these writ petitions is that in the year 1954, Provincial Government realised that one great problem in connection with the 'City of Lahore was the presence of so large a number of animals/cattle that the control of traffic and the maintenance of sanction had both become impossible. The Provincial Government prepared a scheme in consultation with the Central Government to overcome this problem. A piece of land measuring 250 acres situated at Harike Road, Lahore, was earmarked for the construction of a Gujar colony.
Construction of 160 sheds each capable of holding then cattle was made with various amenities attached to it, for example, a tube-well, a school and a veterinary hospital. Steps were taken to secure the removal of the cattle owners from the areas of Civil Lines, Qila Gujar Singh and Mozang Police Station. A decision was taken in an extraordinary meeting of the City of Lahore Corporation held on 18.4.1956 for the removal of the cattle and for their accommodation. In the said cattle colony. On 26.3.1957, the District Magistrate, Lahore. Passed an order under section 144 of the Code of Criminal Procedure prohibiting the keeping of milch cattle within the jurisdiction of the aforesaid Police Stations without a licence obtained from the Administrator of the Lahore Corporation. This order was to remain in force for two months from the 1st of April, 1957, but the same withdrawn immediately on 3rd of April, 1957.
4. On 15.5.1957, the District Magistrate, Lahore, passed an order under Section 5(1)(a) of the Punjab Public Safety Act, 1949, to achieve the same objective of prohibiting the keeping of milch cattle in the said areas. The order dated 15.5.1957 passed by the District Magistrate was successfully challenged and was struck down by this Court in the case of Ch. Amir Ahmad v. District Magistrate, Lahore and another (PLD 1957 (W..P.) Lahore 757 passed by the District Magistrate was successfully challenged and was struck down by this Court in the case of Ch. Amir Ahmad v. District Magistrate, Lahore and another (PLD 1957 W.P.) Lah. 757). The question as to the availability of alternate powers to the authorities under Section under Section 396 (27)(a) and (b) of the City of Lahore Corporation Act, 1941, was not considered necessary to be examined by the Court.
5. Another attempt was made in 1962 during Martial Law period when Martial Law Order No. 118 was promulgated on 13.4.1962 by the Martial Law Administrator, Zone ' B' West Pakistan, authorising the Commissioner, Lahore Division, Lahore, to notify such localities or areas of the Lahore Municipal Corporation within which it would not be lawful to keep or possess without permission any Cow or Buffalo of any age. The contravention of order was made a criminal offence. The affected persons challenged the validity of the said Martial Law Order in the erstwhile West Pakistan High Court after the lifting of Martial Law primarily on the ground that the provisions of the Municipal Ordinance, 1960, were already there for regulating the keeping and maintenance of cattle which was an existing law. The matter was finally decided by the Supreme Court in the case of Muhammad Afzal & Muhammad Saddiq v. The Commissioner, Lahore Division and another (PLD l963 SC 401). It was held that even if the Martial Law Order No. 118 was a valid piece of legislation, the same did not entitle the Commissioner to prohibit altogether the keeping of cattle by any person who sold milk as a measure of livelihood and the said Martial Law Order did not contemplate the whole displacement of cattle nor the total prohibition of keeping Cows or Buffaloes. Therefore, the direction of the Commissioner for the removal of all milch cattle outside the Corporation limits and refusal to issue the permits for keeping such for commercial purposes was held to he clearly in excess of the powers.
6. After the enactment of thePunjab Local Government Act, 1975, the Lahore Municipal Corporation, in exercise of the powers under Section 69 thereof declared certain specified areas as prohibited Zone. The cattle owners were prohibited from keeping the cattle in those areas and were directed to remove them within two months. A writ petition filed to challenge the same was dismissed by this Court in the case of Haji Muhammad Siddique v.
Administrator, Lahore Municipal Corporation (1980 CLC 1289). Lahore, another declaration of the whole of the area of the Municipal Corporation being a prohibited Zone was made on 12.5.1983 and consequential directions for the removal of cattle were issued. The matter was, however, sought to be sorted out by a compromise in I.C.A. No. 222 of 1983 arising out of Writ Petition No. 2546 of 1983 decided by a Division Bench of this Court on 13.11.1984 and I.C.A. No. 254 of 1979 arising out of Writ Petition No. 2546 of 1983 decided by a Division Bench of this Court on 13.11.1984 and I.C.A. No. 254 of 1979 arising out of Writ Petition No. 3556 of 1979 in the case of Haji Muhammad Siddique (supra) decided on 5.12.1979 whereby the cattle Colonies were agreed to be provided for keeping the cattle. the local area of the Corporation to be a prohibited Zone. Consequently, public notice dated 2.1.1985 was issued calling upon the cattle owners t( remove their cattle out of the Lahore Municipal Cooperation within a week. This action was taken under the provisions of section 65 of the Punjab Loca Government Ordinance, 1979. A number of 'writ petitions were fil against the aforesaid decision of the Cooperation. All such writ petition were dismissed by this Court by the judgment dated 26.6.1991 passed I W.P. No. 4112/85. However, the present Writ Petition No. 4496/85 coul . Not be decided on account of Civil Appeal No. 182/91 having been file before the Supreme Court of Pakistan against the order dated 14.1.1991 passed by tiis Court whereby the said writ Petition was dismissed for non prosecution.
8. It may also be mentioned that the District Magistrate, Lah., had earlier passed orders dated 3.10.1985 and 5.4.1987 under Section 14 Cr.P.C. For the same purpose which elapsed by efflux of time.
This gav rise to tiling of Writ Petition No. 19897/97, 11265/97 and 12485/97 whic were disposed of, as having become infructuous, by order dated 17.6.199 passed by this Court. One of the writ petitioners, Haji Muhammad Siddiqu feeling aggrieved tiled an Intra Court Appeal No. 540/97 which wa dismissed by a Division Bench of this Court vide order dated 7.8.1997. I was, however, observed that 110 Buffaloes of the appellant therein would not be ordered to be removed before the allotment of a plot to the said appellant in any of the Gowala Colonies of Rakh Chandra and Harbanspura in case he made an application within a week. The petitioner in Writ Petition No. 19897 filed a Revision Application No. 195/97 for re- called the judgment dated 17.6.1997. The writ petition as well as the review application were dismissed by me on merits by the judgment dated 15.7.1997 which did not seem to have been challenged further in any proceedings.
9. The Metropolitan Corporation, Lahore, by the impugned public notice appearing in the newspapers dated 23.7.1997 and the Additional Deputy Commissioner (General), Lahore, by order dated 26.7.1997 passed under Section 144 Cr.P.C. Prohibited the keeping of cattle/Buffaloes/Cows within the limits of Metropolitan Corporation, Lahore and directed cattle owners to remove the cattle.
10. Ch. Hamid-ud-Din Senior Advocate the learned counsel for the petitioners' in Writ Petition No. 4496/85 contended that the violation of section 65 of the Punjab Local Government Ordinance, 1979, was an offence punishable under Schedule III Part-I Item-I read with sections 161, 162 and 164 there of. Hut the manner in which the cattle owners of Lahore were being arrested and their cattle being impounded was not permitted by law. The was no power vesting in the authorities to take the cattle out of the City forcibly. The learned counsel pointed out the procedure for impounding the cattle particularly section 150 of the said Ordinance. It was argued that only a certain part of the municipal area could he declared to be a prohibited area but not the whole area of the Metropolitan Corporation. It was submitted that the pre-conditions of the provisions o subsections
(1) (2) and (4) of section 65 of the Ordinance had not been complied with. The learned counsel further submitted that the declarations/directions dated 21.10.1984 and 2.1.1985 issued by the Metropolitan Corporation, Lahore, were vitiated by the non-compliance of the procedural provisions as contained in sections 37 and 38 of the Ordinance, 1979, read with the Rules of Business framed thereunder. It was further pointed out that no bye-laws as required by section 38 had hen framed in the absence whereof no action could he taken. It was further stated that without making proper arrangements of another cattle Colony (Gowala Colony), neither the Metropolitan Corporation, Lahore, nor the Additional District Magistrate, Lahore, could pass the impugned orders nor could they taken he impugned action against the cattle owners. He relied on the case of Municipal Committee, Delhi v. Muhammad Ibrahim (AIR 1935 Lah. 196) in which it was held that a Municipal Committee must provide public with another road if it closed a road permanently and that construction of a tonga stand without framing bye-laws was ultra vires the provisions of section 188 of the Punjab Municipal Act, 1911, for regulating the keeping and movement of animals within the Municipal area.
11. Ch. Mushtaq Ahmad Khan, Senior Advocate and Mr. Razwan Mushtaq, Advocate, the learned counsel for the petitioners in Writ Petition No. 18672/97 stated that the petitioners could not he directed to remove their cattle without providing an alternate accommodation as observed in I.C.A.
No 540/97 decided on 7.8.1997. The learned counsel further submitted that in the presence of the provisions of section 65 of the Punjab Local Government Ordinance, 1979, he Proclamation of an order under Section 144 Cr.P.C. By the Additional District Magistrate (General), Lahore, was an abuse of power. It was also submitted that prior notice which was the condition precedent had not been given to the petitioners before passing the impugned order under Section 144 Cr.P.C., They relied on the cases of Asia Four Mills and others v. Director of Food and others (PLD 1996 Lah. 133) (D.B), United Sugar Mills Ltd., Karahci v. District Magistrate, Sukkur and another (PLD 1979 Karahci 410)
Mueez A.I Hatim A.I and others v. The State (PLD 1966 (W.P.) Lah. 675) and Muhammad Bafi and 27 others v. Ahmad Saleem, Assistant Commissioner, Lahore (1976 P.Cr.L.J. 977). Similar arguments were addressed by Mr. Munir Ahmad Bhati, Advocate/learned counsel for the petitioners in Writ Petition No. 20005/97. However, Ch. Naseer Ahmad Bhutta, Advocate/learned counsel for the petitioners in Writ Petition No. 19976/97_ and Mr. M. M. Alam, Advocate/learned counsel for the petitioners in Writ Petition No. 19418/97 further stated that the petitioners in both these writ petitions were maintaining their cattle in villages Sah De. Khooi. (Dhannasignwala) and Chak Mozang, tehsil and District Lahore, where the was no problem of any obstruction in the flow of traffic or sanitation.
Both the places were far away from the populated City of Lahore and the people of these villages were still living in the traditional rural life. Both these learned counsel submitted that these factors had not been taken into consideration by the Administrator of the Metropolitan Corporation, Lahore, or by the Additional District Magistrate while passing the impugned order.
12. Mr. Zafar Ullah Khan, Advocate/learned counsel for the petitioner in Writ Petition No. 19152/97 stated that the prohibition as contemplated under section 65(1) of the Punjab Local Government Ordinance, 1979, would not cover the whole of the local limits of the Metropolitan Corporation, Lahore, but a specific part of the same. He further submitted that under the garb of the impugned action/orders the provisions of section 51 of the said Ordinance were being violated in order to obstruct the regular supply of milk. He argued that under the guise of the impugned orders a monopoly was being created in favour of third party who were manufacturing of Milk Pack which was violative of the Monopolies and Restrictive Trade Practices (Control and Prevention)
Ordinance, `1970, validated by the Validation Of Laws Act, 1975.
13. On the other hand, the learned Advocate General, Punjab/learned Additional Advocate General, Punjab as well as the learned Legal Advisor of the Metropolitan Corporation, Lahore, stated that Writ Petition No. 18672/97 was not maintainable as having been filed in a representative capacity.
They relied on order dated 25.3.1986 passed in C.M. No. 1./85 in Writ Petition No. 4496/85. They further relied on order dated 17.6.1997 passed in Writ Petition No. 19897/97 which was upheld in [CA No. 540/97 decided on 718.1997 by a Division Bench of this Court. They further relied on order dated 15.7.1997 passed in Review Application No. 195/97 in Writ Petition No. 10897/97 whereby the review application as well as the writ petition were dismissed on merits. They also relied on the case of Haji Muhammad Siddique v. Administrator, Metropolitan Corporation, Lahore, (1980 CLC 1289) in support of their submissions that the Metropolitan Corporation was under on legal obligation to provide an alternate accommodation or a cattle Colony and that it was for the writ petitioners to make their own arrangements outside the prohibited Zone. They further stated that under the provisions of section 65 of the Ordinance, the impugned order was rightly passed to cover the whole area of the Metropolitan Corporation, Lahore. They relied on the case of Inamur Rehman v. Federation of Pakistan and others (1992 SCMR 563) at page 586 and the case of Government N.W.F.P. v. Muhammad Irshad and three others (PLD 1995 SC 281) in support of the proposition that the whole area could be covered by the impugned orders. They submitted that no valid exception can be taken to the impugned order dated 26.7.1'997 passed by the Addition District Magistrate under Section 144 Cr.P.C. In the facts and circumstances of the case. They relied, on Ithar Khan and 18 others v. The State (PLD 1970 Peshawar 19), United Sugar Mills Ltd., Karachi v.
District Magistrate, Sukkur and another (PLD 1979 Karachi 410) and Muhammad Ismail v. Muzaffar Qadir, C.S.P. District Magistrate, Sachiwal (PLD 1968 Lah. 1353).
14. I have heard the learned counsel for the parties at length. I have already given detailed reasons in my judgment dated 15.7.1997 passed in Review Application No. 195/97 in Writ Petition No. 10897/97 that the Metropolitan Corporation, Lahore, is tinder no legal obligation to acquire the land, to construct another Cattle Colony (Gowala Colony) for the were petitioners out of the public exchequer and to provide them the accommodations in case of removal of cattle. No such compulsion cane be spelt out from the provision of section 65 ibid. Sub-section (4) of said provision merely provides for the exemption of an exception to the operation of a prohibitory order passed under sub-section (2) of the said provision and to allow the cattle owners to keep and maintain their places earmarked by the Corporation as Cattle Colonies on certain terms. Thus, certain areas, within the prohibited Zone, may be exempted by the Metropolitan Corporation, Lahore, where the keeping and maintaining cattle my able permitted. Similar view has been taken in the case of Haji Muhammad Siddique v. Administrator, Metropolitan Corporation, Lahore (1980 CLC 1289) and the judgment dated 26.6.1991 passed in Writ Petition No. 4112/85 whereby as many as 23 writ petitions were dismissed by this Court. A Corporation may declare any part of its local area as a prohibited Zone. -Thus, the word 'any' has a wide import and may include a part or whole in the context of a particular case. Reliance can safely he placed on the cases of Government of N.W.F.P., Inamur Rehman (supra), Ch. -Zahur Ilahi, M.N.A. v. The State (PLD 1977 SC 273), Allah Ditta v. The State through Secretary, Ministry of Defence, Islamabad (PLD 1976 Lahore 823), Mr. Manzur Qadir v. Mst. Amtual Hussain and 2 others (PLD 1971 Lah. 537), Pakistan Tanneries Ltd. (Under Liquidation), Lahore v. Sardar Hidayat Ullah Mokal and 5 others (PLD 1972 Lahore 880), Cuck v. Rates (12 QBD 79), Kishan Singh v. State (AIR 1957 M.P. 67), Satya Narain Biswanath v.
Harakchand Rppchand (AIR 1955 Calcutta 225), IN re: Sundoorji, Lalji Khakkar (AIR 1947 Bombay 30), Veerappa Siddalingappa Virupathi v: State of Mysore (AIR 1965 Mysore 227) and Chandi Prasad v.
Rameshwar Prasad Agarwal (AIR 1967 Patan 41). Thus, the declaration under Section 65 of the Ordinance may not he restricted to one are only. It may include one or more. In this case, certain areas of Gowala Colonies have already been exempted from the operation of law. Even more areas can he considered by the Metropolitan Corporation, Lahore, for such exemption..
15. However, the provisions of section 63 of the Ordinance are not exhaustive on the subject. Even under Section 100 of the Ordinance, no person is permitted, except by a licence from the Corporation, to keep mulch cattle for the sale of milk or seal milk or export or import milk for sale or manufacture butter, ghee, or any other milk for sale or dairy product, nor any premises can he used for such purpose. The Metropolitan Corporation is further authorised, with the previous sanction of the Commissioner, Lahore Division, Lahore, by virtue of Government Notification dated 6.2.1980, to frame and enforce a Milk Supply Scheme which may among other matters provide for the establishment of milkmen's colonies, the prohibition of the keeping of mulch cattle, and taking of such other measures as may he considered necessary for ensuring an adequate supply of pure milk to ht public.
16. In my opinion, the impugned order dated 26.7.1997 passed under Section 144 Cr.P.C., is meant to facilitate the carrying out the prohibition orders by the Metropolitan Corporation. The impugned order does not run counter to the object with which the Metropolitan Corporation is already proceeding. The learned Advocate General, Punjab, his pointed out certain untoward incidents having already taken place creating law and order- situajon in connection with the operation for the removal of the cattle. The impugned order has a direct nexus with object of the law viz. Public health, and obstruction in normal flow of traffic, etc. No exception can he taken to the validly of impugned order. Mere availability of similar power in another, law is no bar to the issuance of an order under Section 144 Cr.P.C. If the same is otherwise validity justification. Reliance can he safely placed on the cases of Maqbool Ahmad, etc. v. A.D.C. Bahawalpur (PLJ 1974 Cr.C. Baghdad-ul- Hadid 78), United Sugar Mills Ltd., Karachi v. District Magistrate, Sukkhur and another (PLD 1979 Kar.
410) and Mirza Khurshid Ahmad v. Punjab Province (PLD 1992 Lab. 1) affirmed by the Supreme Court of Pakistan in the case of Zaheeruddin and others v. The State and others (1993 SCMR 1718). In all these precedent cases orders under Section 144 Cr.P.C. Were held to be valid notwithstanding similar provisions in other laws.
17. For the fore-going reasons, I do not find any merit in these writ petitions which are dismissed with no order as to costs.
18. The Administrator, Metropolitan Corporation, is directed to hold an inquiry and carry out the spot inspection in order to consider the grievance of the petitioners in Writ Petitions No. 19418/97 and 19976/97 for the purposes of granting or otherwise of exemption under sub-section (4) of section 65 of the Punjab Local Government Ordinance, 1979, and to pass an appropriate order within 20 days.
19. In view of the stay by this Court and insufficient public notice of three days by the Corporation, the writ petitioners and all such cattle owners are allowed a period of 30 days for the removal of their cattle from the prohibited Zone and to make alternate arrangements.